judgement:
N: Criminal Appeal Nos.
178179 and 228 of 1975.
(From the Judgment and Order dated 10 4 1975 of the Punjab and Haryana High Court in Criminal Appeal No. 40 of 1972).
Frank Anthony, Herjinder Singh and S.N. Singh, for appellant No. 1 in Crl.
A.178/75 and appellants in Crl. 179/75 and Appellants Nos.
1 2 in Crl.
A.228/75.
A.K. Sen, and Herjinder Singh for appellant No. 2 in Crl.
A.178/75.
R.L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appellant No. 3 in Crl.
A. No. 228/75.
O.P. Sharma and Miss Kusum Chaudhury, for the respondents in all the appeals.
The Judgment of the Court was delivered by GOSWAMI, J.
These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appel lants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and M.p.
Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.
Satbir Singh was also convicted on the sole testimony of Puran Singh under section 364 IPC and sentenced to rigorous im prisonment for seven years and fine.
The remaining eight appellants (Ajit Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.
They had all earlier been acquitted by the Additional Sessions Judge, Amritsar.
This case throws a lurid light on smuggling activities at the international India Pakistan border near Amritsar.
Amongst the appellants (hereinafter to be described as the accused) M.P. Singh was an Inspector of the Border Security Force (BSF), Shiv Narain was a Sub Inspector (BSF) and Harbhajan Singh was a Constable (BSF).
Accused Ajit Singh is the father of the two accused, Satbir Singh and Paramjit Singh.
Ajit Singh is alleged to be a big 'smuggler indulging in his smuggling activities at the India Pakistan border with his two sons and the other accused persons, namely, Darshan Singh, Arian Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh.
It is alleged that Inspector M.P. Singh, S.I. Shiv Narain and Constable Harbhajan Singh, along with other BSF personnel were conniving at the smuggling activities of Ajit Singh and party and were reaping their illegal harvest:.
197 Shingara Singh and his son Hardip Singh and Kartar Singh are the three deceased whose murders form the subject matter of this case.
While the dead bodies of Hardip Singh and Kartar Singh were found that of Shingara Singh was not available.
Puran Singh (PW 3) son of Shingara Singh (deceased) was a member of the gang of smugglers headed by accused Ajit Singh and in the course of smuggling activities there was a quarrel with regard to the sharing of money to the extent of Rs. 15,000/ which was said to be his due and which Ajit Singh and party were not paying.
A few months prior to July 6, 1970, the date of occurrence, when accused Satbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas from Pakistan into Indian territory with the connivance of Inspector M.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded in slipping away under the cover of darkness with two jackets of gold.
The gold with which Puran Singh fled away was then worth about Rs. 5 to 6 lakhs.
May 20, 1970: A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activ ities with the sons of accused Ajit Singh was taken away by accused Satbir Singh and some others (not before us) on May 6, 1970, in a car.
He did not then suspect anything.
But now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder Singh and Makhan Singh, had abducted his son Puran Singh over a dispute about .the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him.
On receipt of this report a case under section 364 IPC was registered by S.I. Baldev.
Singh (PW 63) at Police Station, Gharinda (exhibit P.P.Y.).
July 7, 1970: A report was sent to Police Station, Gharinda by accused Shiv Narain, S.I. (BSF) about an en counter of BSF with smugglers on the mid night of July 6, 1970, on the border of India Pakistan at Border Pillar No. 100 near Amritsar that "two sikh young men" fall dead to the fire opened by the Border Security Force of the Indian side.
July 17, 1970: The first information report (exhibit PPZ/R) of the present case was registered by Police Station, Gha rinda, on the report dated July 12, 1970 (exhibit P.P.Z.) of D.S.P. Surjit Singh (PW 64) which, inter alia, disclosed: "I heard a rumour on 8th July, 1970, on my return from casual leave that three persons namely Shingara singh son of Inder Singh, Kartar Singh son of Mangal Singh and Hardip Singh son of Shingara Singh jats residents of Ranike, Police Station Gharinda had been abducted forcibly by Ajit singh of Burj and his sons residents of village Burj, Police Station Gharinda and party from near Crystal Chowk, Amritsar and that they had, been shown killed in an encounter in connivance with Border Security Force and Pak Rangers".
198 This report of D.S.P. Surjit Singh has discounted the en counter story as a fib but yet it continued to be the de fence of the accused.
According to the trial court "the encounter version appears to be true".
Were the three persons, Shingara Singh, Hardip Singh and Kartar Singh, killed in an encounter with the BSF or mur dered in pursuance of a conspiracy .to abduct and murder ? While the first part of the question need not even be proved, the second part must needs be proved to the hilt.
The prosecution case further is that Puran Singh after having been taken away from his village was taken to the Haveli of Ajit Singh where he was asked about the gold which he had stolen away.
Puran Singh informed the accused persons that he 'had delivered the gold to his brother, Hardip Singh.
It is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Singh and accused Shiv Narain who later on handed over 'him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to village Dial (Pakistan).
Puran Singh was brought to the Indian side of the border on the night intervening 6th and 7th July, 1970, but was again taken back to Pakistan where from he could manage to escape and cross over to the Indian side of border only on November 6, 1970, to figure as an eye witness to the murder of his father.
It is alleged that on July 6, 1970, Shingara Singh, Hardip Singh and Kartar Singh (all deceased) along.with Harnam Singh (PW 5) went.
to Amritsar.
Shingara Singh and Hardip Singh had gone to attend court, Kartar Singh to sell his vegetables and Harnam Singh to attend to his wife, Smt.
Piaro, who was a patient in the V.J. Hospital.
After being free from their work at about 1.00 p.m. the three deceased along with Harnam Singh (PW 5) went towards the V.J. Hospital.
When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railway Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Singh, accused_ Tara Singh, accused Arian Singh, accused Bachan Singh, accused Darshan Singh, Pritu.
(Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other; Jetsons in police uniforms (Pamma and Malki at) were travelling. 'These persons were armed with guns and revolvers.
The accused came out of the vehicle and physi cally lifted Shingara Singh, Hardip Singh and Kartar Singh and whisked them away in the said vehicles.
It is alleged that the deceased persons were first taken to the HaveIi of Ajit Singh in village Burj where they were belaboured and later on, blindfolded and tied, removed to the Indo Pakistan border where on that night some goods were to be exchanged between the accused with Balkar Singh (PW 4) and the Pakis tani smugglers.
Accused M.P. Singh was also present there.
At about mid night all of them including accused Shiv Narain and accused Harbhajan Singh moved near Pillar No. 100.
This party handed over 1 1/4 maunds of silver to Yakub and Shaffi, Pakistani smugglers and received gold in return Hardip Singh and Kartar Singh were brought by accused Satbir Singh and others towards Indian side of the border but Shingara Singh 199 was left behind with the Pakistani smugglers.
Balkar Singh (PW 4) then enquired as to why Shingara Singh had been handed over to Pakistanis.
At that moment accused Shiv Narain fired two shots with very light pistol.
Accused Harbhajan Singh, accused M.P. Singh, accused Paramjit Singh and accused Satbir Singh also fired shots at Hardip Singh and Kartar Singh from a distance of 25 yards who then dropped dead.
Accused Jasbir Singh (absconder) came there and untied their hand 's and removed the cloth covering their eyes.
A rifle was placed near the dead body of Hatdip Singh and a Kitpan was placed near the dead body of Kartar Singh.
Balkar Singh (PW 4) also heard the sound of a fire shot in Pakistan territory when Ajit Singh (accused) said that Shingara Singh had also been killed.
According to the prosecution to justify the killing of Hardip Singh and Kartar Singh, accused M.P. Singh, accused Shiv Narain and accused Harbhajan Singh with other officials of BSF, manipulated an encounter story and got a false case registered at Police Station, Gharinda, on July 7, 1970 (exhibit P.P. O/1) on a "ruqa" having been sent by S.I. Shiv Narain (accused) falsely alleging, inter alia, that on a secret information having been received by Inspector M.P. Singh (accused) that some Smugglers would bring some goods from Pakistan to India they conducted an.
ambush behind Burj (Border Pillar) No. 100 on the night intervening 6th and 7th July, 1970, and during the process in defence the Naka party fired which resulted in killing of two persons who were subsequently identified as Hardip Singh and Kartar Singh.
The accused persons were charged under section 364/120B IPC for abducting Puran Singh.
They were also charged under section 364/120B IPC for abducting Shingara Singh, Hardip Singh and Kartar Singh.
They were further charged under section 302/102B IPC for causing the death of Kartar Singh and Hardip Singh.
They were also charged under section 109 IPC for abetting the murder of Shingara Singh which offence was committed in consequence of the abetment.
The prosecution examined 68 witnesses.
The accused denied the charges and the BSF accused suggested a motive for the prosecution by alleging animus against the D.S.P. Surjit Singh (PW 64).
According to them Kartar Singh and Hardip Singh were killed as a result of an encounter with smugglers on the border.
The Sessions Judge giving his reasons for not accepting the evidence of the eye witnesses and other material evi dence acquitted all the accused.
The High Court on appeal confirmed the acquittal of two accused, namely, Pritam Singh and Mehar Singh, but convicted the appellants as mentioned above.
With regard to the charge under section 302/120B IPC the case will depend upon the evidence of Puran Singh (PW 3) and the extrajudicial confession by the accused, Shiv Narain and Harbhajan 14 240SCI/77 200 Singh, before R.K. Kapur (PW 41).
With regard to the charge under section 364 IPC the prosecution rests upon Hamare Singh (PW 5) and also upon the evidence of Gurdial Singh (PW 10), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW 46) with regard to the Roznamcha entry (exhibit PP.
We may also note here that Puran Singh (PW 3) and Balkar Singh (PW 4) were the two eye witnesses to the murder and Balkar Singh (PW 4) was disbelieved both by the Sessions Judge and the High Court.
Harnam Singh (PW 5) is an eye witness to abduction.
We should also note that Gutdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions Judge and the High Court.
Harnam Singh (PW 5) who is the eye witness to abduc tion was disbelieved by the Sessions Judge but partly be lieved by the High Court.
In the above state of the evidence Mr. Sharma appearing on behalf of the state rests his case on the evidence of Puran Singh (PW 3) and the extra judiCial confession made by the accused Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41) with regard to the murder charge under sec tion 302/120B IPC.
He also relies upon the Roznamcha and the recoveries.
We will therefore first examine the reasons given by the Sessions Judge for acquitting the accused.
After narrating the facts deposed to by Puran Singh (PW 3) the Sessions Judge held that "the story on the face of it appears to be false".
According to Puran Singh (PW 3) the accused took him away to Ajit Singh 's Haveli and then to the Indo Paki stan border only with a view t9 recover the gold which he had earlier managed to steal away.
_ The Sessions Judge took note of the fact that Puran Singh had told the accused that the gold was lying with his brother, Hardip Singh.
It was, therefore, inconceivable that this clue with regard to the gold would not be pursued by the accused and Hardip Singh would be left out and Puran Singh alone would be taken away.
This witness even after he had Seen the murder of his father Shingara Singh, on July 6, 1970, stayed in Pakistan for about four months without disclosing this fact to any body nor did he communicate about it to any of his rela tions.
Although this witness said that he crossed from Pakistan to India only on November 6, 1970, after the mur der, and was arrested and interrogated by S.I. Jai Ram (PW 58) and was also prosecuted for crossing the border, there is no evidence from any police officer, nor even from S.I. Jai Ram (PW 58).
No documentary evidence, which would have been available if his statement Was true, was produced in the case.
Apart from that, this witness stated that he was arrested by S.I. Jai Ram and he narrated the entire occur rence to him.
S.I. Jai Ram does not Support him.
On the other hand he had earlier stated before the committing Magistrate that he did not tell anything about the said murders to S.I. Jai Ram.
The Sessions Judge also note several discrepancies in his evidence and finally came to the conclusion that he was not actually present at the ' time of the murders nor was he abducted by the accused as alleged.
201 The High Court does not appear to have closely consid ered the treasons given by the SesSions Judge for disbeliev ing the testimony of Puran Singh.
it is difficult to appre ciate how the High Court can say that the statement of this witness "seems to be quite natural" in view of the infirmities pointed out by the Sessions Judge.
After exam ining the entire discussion of the evidence of this witness by the High Court, we are not satisfied that the High Court was right in relying upon the testimony of this witness.
It is pointed out that the High Court was not correct in observing that "it is not disputed that he (Puran Singh) is being tried for having come to Indian territory on November 6, 1970 and the moment he entered the Indian territory, he was taken into custody and his statement was recorded by the police".
On the other hand the Sessions Judge found just to the contrary and there is no reference in the judgment of the High Court to the discussion by the Sessions Judge with regard to this aspect.
We have next to see the reasons given by the Sessions Judge for disbelieving the testimony of Harnam Singh (PW 5).
This witness gave evidence about the abduction of the three deceased from the Crystal Chowk, near V.J. Hospital, Amrit sar.
The witness is a near relation of the deceased and he admitted that when the three deceased were abducted he suspected that the accused might inflict injuries on their person.
Even so he did not go for police assistance nor did he inform even Mangal Singh (PW 17), father of the deceased .Kartar Singh, about the occurrence although the latter was residing with him in the same house.
He also did not ask the relations of the deceased to 'lodge any report with the police.
Crystal Chowk is a busy commercial area where there are shops and some residential houses and the shops were open at the time of the incident.
Even so this witness stated that there were no shops or bazar near the place of occurrence.
This witness named five accused persons including two absconders and stated that he knew them by names about one year prior to the occurrence.
Since he had named accused Paramjit Singh and accused Satbir Singh in the committing court he was asked there to identify these two accused.
He, however, wrongly pointed towards accused M.P. Singh as Paramjit Singh and accused Pritam Singh as Satbir Singh.
Accused M.P. Singh was not even alleged to be present at Amritsar at the time of abduction.
Although this witness stated that he informed Kabal Singh (PW 6) brother of Shingara Singh, Kabal Singh did not corroborate him on this point.
Further, Harnam Singh (PW 5) states about abduction of the three deceased from Crystal Chowk.
The High Court accepts his evidence as being corroborated by witnesses regarding his presence at Amritsar with the three deceased persons.
It is difficult to see how because his presence at Amritsar is proved the further fact about the abduction of the three deceased from Crystal Chowk is also established.
There is no corroboration whatsoever of this part of the story.
If the High Court has to look for corroboration of the evidence of Harnam Singh even about his presence at Amritsar on its own reasoning, the principal part of the prosecution case about abduction depending upon his sole testimony cannot be held to be established.
The 202 High Court also seeks to find corroboration of this 'part of the case from Roznamcha of July 6, 1970 (exhibit P.P. A) wherein a certain information from an undisclosed source was re ceived at 2.00 P.M. by Gurdial Singh (PW 10) to the effect "that there was some fight between some smugglers near Crystal Chowk or some legislator had been abducted".
This information is hearsay in absence of the informant.
name of the informant is not even disclosed.
Apart from this, this Roznamcha does not corroborate Harnam Singh (PW 5) with regard to his statement that the three deceased persons were abducted by the accused from Crystal Chowk.
The High Court did not fail to observe that the reasons given by the witness for his belated examination by the police as "padding obviously. at the instance of the po lice".
Even so, the High Court explained away the fact ' of Harnam Singh 's not reporting to the police 'in a very unusu al way.
The High Court observed firstly that it was natural for the witness not to be involved in the dispute of smugglers and secondly that there was no use informing the police as no petty police officer would take action against the international smugglers.
The High Court went on to record that "it appears in the present day administration that no petty police officer is likely to take responsibil ity in ' the matter of prosecuting international smugglers without having the blessings of the highest police officer in the district and even above".
Witnesses, like Harnam Singh, were, therefore, according to the High Court "help less".
We cannot commend this line of approach in a crimi nal case in order to find jurisdiction for conviction on shaky testimony by making a virtue of the inalertness of the police administration.
The witness cannot be relied upon by resort to a kind of special pleading in his aid.
We find that the High Court has not given any cogent reason for taking a different view with regarding to the appreciation of evidence of this witness by the Sessions Judge.
About recovery of fire arms and gold at the instance of some of the accused, the case rested on the evidence of the police officers alone.
The other search witnesses were declared hostile on account of their not supporting the prosecution.
The Sessions Judge did not feel it safe to act upon the testimony of police witnesses including Inspector Bachan Singh (PW 68) in the matter of disclosure statement as well as of recovery of the fire arms and of gold in absence of corroboration by independent witnesses.
The High Court held that there was no reason to disbelieve the police witnesses.
But when both the Sessions Judge and the High Court seem to be in agreement in finding that there was "padding" by the police in respect of evidence produced in the case, it could not be said that the Sessions Judge was so grievously in error that contrary appreciation of the evidence was compelling under the circumstances.
There is also the evidence with regard to extra judicial confessions said to have been made by the accused Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41), the Commandant of the Border Security Force.
The Sessions Judge has considered that evidence as inadmissible under section 24 of the Evidence Act.
203 The High Court, differing from the opinion of the Ses sions Judge, held the extra judicial confession as admissi ble in evidence since, according to the High Court, "it cannot be held that he (Kapur) gave any threat; inducement or promise to the accused".
The High Court observed: .lm10 "When this (warning) was conveyed to the ac cused by Shri Handa D.S.P., the accused still stuck to the encounter versions and made their statements in writing supporting the encounter version.
The said threat of Shri Kapur P.W. did not work and the accused stuck to their old story .
It was on 19th July, 1970 that Shiv Narain and Harbhajan Singh were questioned separately when he told them that they should come" out with the truth otherwise .they would them~ selves be responsible for their actions and if they had done anything wrong, they would go to jail.
Instead of giving them any promise of help, he in fact told them that if they were in the wrong, they would go to jail .
From the statement of this witness, which I have gone through minutely, it is difficult to hold that he gave any inducement, threat or promise to the accused persons and that the ac cused persons made the confessions in pursuance thereof".
Section 24 of the Indian Evidence Act provides that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to.
him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Indeed, Mr. Kapur was a person in authority being the Commandant of the rank of a Senior Superintendent of Police and the confessing accused were his subordinates.
Apart from this, it appears from his evidence that the oral confessional statements were not readily forthcoming from the accused persons but they had to be interrogated on several occasions.
He further advised D.S.P. Handa to interrogate them "with a warning that they should state the truth otherwise they would not be supported by me".
Mr. Kapur further admitted in his cross examination that he "did tell Mr. Handa on telephone on 10th July, 1970 that he should give a warning to Border Security Force people to come out with truth otherwise they themselves would be responsible for their actions".
Mr. Kapur also himself "enquired from M.P. Singh and Shiv Narain accused about the matter on 19th July, 1970 telling them that now that the case has been registered they should state the truth".
In deciding whether a particular confession attracts the frown of section 24 of the Evidence Act, the question has ,to be considered 204 from the point of view Of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind.
It is true that Mr. Kapur, in his evidence, denied having held out: to the accused any inducement, threat or promise.
We, however, find.
that on July 1 7, 1970, the police gave a go by to the encounter story and the present case was registered against the accused.
Two days after, on July 19, 1970, Mr. Kapur having already failed to get any confessional statement from the accused through other agen cy, took upon himself to question accused Shiv Narain and Harbhajan Singh separately and this time he succeeded in securing confessional statements.
When the two accused were questioned.
separately after several abortive attempts to secure confessions, can it be said that there ' was no in ducement, threat or promise of some kind proceeding from.
Mr. Kapur to have made any impact on their minds 'resulting in the confessions ? Mr. Kapur having stated to the accused on July 19, 1970, that "now that the case has been regis tered they should state the truth", it is difficult to hold that by this statement he would not generate in the minds of the accused some hope and assurance that if ' they told the "truth" they would receive his "support" which he had earli er ' conveyed to them through D.S.P. Handa.
It is true that in the course of cross examination Mr. Kapur stated that he had told the accused that if they had done anything wrong they would go to jail.
But having regard to the effect of the totality of the evidence of this witness, we are unable to hold that the confessions made by the accused before Mr. Kapur on July 19, 1970, were free from the taint of infirmi ty within the mischief of section 24 of the Evidence Act. ' We are, therefore, clearly of opinion that the extra judi cial confessions by the two accused, Shiv Narain and Harbha jan Singh, have to be completely excluded from consideration being hit by section 24 of the Evidence Act.
Similarly not much can be made of abscondence of certain accused when other material evidence connecting the accused with the crime has failed in this case.
A serious infirmity in the judgment of the High Court is that it has not at all considered the reasons given by the Sessions Judge for acquitting the accused.
The High Court has given its own reasons for convicting the appellants but that is not enough in an appeal against ' acquittal.
As a practical proposition, in an appeal against acquit tal, it is always necessary that the .reasons given by the trial court for recording an acquittal should be examined by the High Court.
If the conclusions of the trial court are not based upon any evidence or they are such as no reasona ble body of men, properly instructed in law, can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court will be justified in taking a contrary view by giving its own reasons.
It is not enough that it is just Possible for the High Court to take a con trary view.
While interfering with acquittal the judg ment of the High Court should demonstrate clearly 205 the unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record.
We are unable to say in these appeals that the High Court has followed these salutary principles in dealing with an appeal against acquittal.
We may also observe that the High Court need not have mentioned the fact that the Sessions Judge was "suspended on account of corruption charges".
If we may say so, it was absolutely unnecessary to refer to this in disposing of the appeal.
We are clearly of opinion that this was not a fit case where the High Court should have interfered with the acquit tal of any of the appellants.
The appeals are allowed.
The judgment and order of the High Court are set aside and the appellants are acquitted of all the charges.
The appel lants, Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and M.P. Singh shall be released from detention forthwith.
The remaining appellants, Ajit Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh, who have been on bail shall be discharged from their bail bonds S.R. Appeals allowed.

summary/full:
All the accused were tried for offences section 302/120B and 364 I.P.C., but acquitted by the Additional Sessions Judge, Amritsar.
On State 's appeal against acquittal, the High Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and M.P. Singh) under section 302/120B I.P.C. and sentenced them to imprisonment for life.
Satbir Singh was also convicted on the sole testimony of Puran Singh (PW3) section 364 I.P.C. and sen tenced to rigorous imprisonment for seven years and fine.
The High Court held the extra judicial confessions made by Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41) the commander Border Security Force as admissible in evi dence before convicting them and rejected the plea of en counter on the Indo Pakistan border.
The High Court con victed the remaining eight appellants (Ajit Singh, Darshan Singh, Arian Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh) section 364 I.P.C. and sentenced them also to rigorous imprisonment for seven years with fine.
Allowing the appeals under the Supreme Court (Enlarge ment of Criminal Appellate Jurisdiction) Act, 1971, the Court, HELD: (1) This was not a fit case where the High Court should have interfered with the acquittal of any of the appellants.
The High Court has not at all considered the reasons given by the Sessions Judge for acquitting the accused.
It has given its own reasons for convicting the appellants but that is not enough in an appeal against acquittal.
[205 B C] (2) As a practical proposition, in an appeal against acquittal, it is always necessary that the reasons given by the trial court for according an acquittal should be exam ined by the High Court.
If the conclusions of the trial court are not based upon any evidence or they are such as no reasonable 'body of men, properly instructed in law can reach, on the evidence, or they are so palpably wrong as to shock 'the sense of justice, the High Court will be justi fied in taking a contrary view by giving its own reasons.
It is not enough that it is just possible for the High Court to take a contrary view.
While interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record.
The High Court has followed these salutary principles in dealing with an appeal against acquittal.
[204 G H, 205 A] (3) In deciding whether a particular confession attracts the frown of section 24 of the Evidence Act, the question has to be considered from the point of view of the confess ing accused as to how the inducement.
threat or pro raise proceeding from a person in authority would operate in his mind.
In the instant case, the extra judicial confessions by the two accused Shiv Narain and Harbhajan Singh, have to be completely excluded from consideration being hit by section 24 of the Evidence Act.
When the two accused were questioned separately after several abortive attempts to secure confes sions it cannot be said that there was no inducement, threat or promise of some kind.
[203 H 204 A, E] 196 Observation: The witness cannot be relied upon by resort to a kind of special pleading.
in his aid.
The line of approach in a criminal case in order to find justification for conviction on .shaky testimony by making a virtue of the inalertness of the police administration is not to be commended.


judgement:
iminal Appeal No. 62 of 1954.
Appeal by special leave from the Judgment and 0rder dated the 10th June 1953 of the Punjab High Court at Simla in Criminal Revision No. 86 of 1953 arising out of the Judgment and Order dated the 7th January 1953 of the Court of Sessions Judge, Karnal in Criminal Appeal No. 355 of 1952.
N. C. Chatterjee, (Vir Sen Sawhney and Rajinder Narain, with him) for the appellant.
Gopal Singh and P. G. Gokhale, for the respondent.
1014 1955.
November 24.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant was a candidate for election to the House of the People from the Karnal Reserved Constituency during the last General Elections.
The proviso to section 33(3) of the Representation of the People Act (XLIII of 1951), omitting what is not material, enacts "that in a constituency where any seat is reserved for the Scheduled Castes, no candidate shall be deemed to be qualified to be chosen to fill that seat unless his nomi nation paper is accompanied by a declaration verified in the prescribed manner that the candidate is a member of the Scheduled Castes for which the seat has been so reserved and the declaration specifies the particular caste of which the candidate is a member and also the area in relation to which such caste is one of the Scheduled Castes".
Rule 6 of the Election Rules provides that the declaration referred to in the above proviso shall be verified by the candidate on oath or solemn affirmation before a Magistrate.
Schedule If contains the form of nomination paper to be used, with the terms in which the declaration is to be made by the candidate and verified by the Magistrate.
On 5 11 1951 the appellant signed two nomination papers, each containing the following declaration: "I hereby declare that I am a member of the Balmiki Caste which has been declared to be a Scheduled Caste in the State of Punjab".
The Balmiki Caste is one of the castes declared to be a Scheduled Caste under the "Constitution (Scheduled Castes) Order, 1950".
The above declaration was made on solemn affirmation before the First Class Magistrate, Karnal, and the nomination paper& with the above declaration were filed before the District Magistrate, Karnal, who was the returning officer.
One Jai Ram Sarup, a member of the Chamar caste, which is one of the Scheduled Castes, was also a candidate for the seat, and he raised the objection that the appellant was not a Balmiki by caste, and that he was therefore not qualified to stand for election to the re served Constituency.
Acting on the declaration afore 1015 said, the returning officer overruled the objection, and accepted the nomination paper of the appellant as valid.
At the polling, the appellant got the majority of votes, and on 6 3 1952 he was declared duly elected.
On 27 8 1952 Jai Ram Sarup filed the application out of which the present appeal arises, under sections 476 and 195 of the Code of Criminal Procedure before the District Magistrate, who functioned as the returning officer.
He therein alleged that the declaration made by the appellant that he belonged to the Balmiki caste was false, that, in fact, be was born a Muslim and had been converted to Hinduism, and that therefore "in the interests of justice" and "for safeguarding the interests of the Scheduled Castes", proceedings should be taken for his prosecution.
In his counter affidavit the appellant stated: "I am not a Muhammadan by birth.
On the other hand, I was born in Balmiki Hindu family.
I am a Hindu".
The District Magistrate held an enquiry in which one Prith Singh Azad, President of the Depressed Classes, Delhi, gave evidence that the appellant was a Muslim of the name of Khaliq Sadiq, that in 1938 he applied to the Suddhi Sabha to be converted to Hinduism, that be was so converted, and that thereafter he came to be known as Virindar Kumar.
In cross examination, he stated that the appellant bad admitted before him that he was a Muslim by birth.
He added that he bad two Muslim wives living at the time of the conversion.
The applicant, Jai Ram Sarup, also produced ten letters stated to be in the handwriting of the appellant in proof of the above facts.
On 17 9 1952 the Magistrate passed an order that there was a prima facie case for taking action, and on 29 9 1952 he filed a complaint before the First Class Magistrate, Karnal, charging the appellant with offences under sections 181, 182 and 193 of the Indian Penal Code.
Against this order, the appellant preferred an appeal to the Court of the Sessions Judge, Karnal, who dismissed the same on the ground that the returning officer was not a Court,, that the proceedings before 1016 him did not fall under section 476, and that there fore no appeal lay under section 476 B.
The appellant took the matter in revision before the High Court, Punjab, and that was heard by Harnam Singh, J., who held, differing from the Sessions Judge, that the returning officer was a Court, and that his order was therefore appealable.
He, however, held that on the merits there was no case for interference, and accordingly dismissed the revision.
It is against this order that the present appeal by special leave is directed.
On behalf of the appellant Mr. N. C. Chatterjee argues that having held that the order of the returning officer was appealable, the learned Judge ought to have remanded the case for hearing by the Sessions Judge on the merits, and that his own disposal of the matter was summary and perfunctory.
The contention of Mr. Gopal Singh for the respondent is that the view of the Sessions Judge that the returning officer was not a court and that his order was not, therefore, appealable was correct ', and that further the order of the High Court in revision declining to inter fere on the merits was not liable to be questioned in special appeal in this Court.
The first question that arises for our decision is whether the order of the District Magistrate passed on 17 9 1952 as returning officer is open to appeal.
The statutory provisions bearing on this point are sections 195, 476 and 476 B of the Code of Criminal Procedure.
Section 195(1)(a) provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public officer concerned or of his superior.
Section 195(1)(b) enacts that no Court shall take cognizance of the offences mentioned therein, where such offence is committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or a Court to which it is subordinate.
The offence under section 193 is one of those mentioned in section 195 (1) (b).
Section 476 prescribes the procedure to be followed where a Court is moved to lay a complaint, and that applies 1017 only to offences mentioned in sections 195(1) (b) and 195(1) (c) and not to those mentioned in section 195(1) (a).
Section 476 B provides for an appeal from an order passed under section 476 to the appropriate Court.
The result then is that if the complaint relates to offences mentioned in sections 195(1) (b) and 195(1) (c), an appeal would be competent, but not if it relates to offences mentioned in section 195(1) (a).
Now, the order of the Magistrate dated 17 9 1952 directs that the appellant should be prosecuted for offences under sections 181, 182 and 193.
There is no dispute that the order in so far as it relates to offences under sections 181 and 182 is not appealable, as they fall directly under section 195(1) (a).
The controversy is only as regards the charge under section 193.
Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not, and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere.
If the offence is not committed in a judicial proceeding, then it will fall outside section 195(1)(b), which applies only when it is committed in or in relation to a proceeding in Court, and there is in consequence no bar to a complaint being made in respect thereof unaffected by the restrictions contained in section 195(1) (b).
But if the offence under section 193 is committed in or in relation to a proceeding in Court, then it will fall under section 195 (1) (b), and the order directing prosecution under section 476 will be appealable under section 476 B.
The point for decision therefore is whether the returning officer in deciding on the validity of a nomination paper under section 36 of the Act can be held to act as a Court.
The question thus raised does not appear to be covered by authority, and has to be decided on the true character of the functions of the returning officer and the nature and the extent of his powers.
"There has been much difference of opinion as to the precise) character of the office of a returning officer, viz., as to whether he is a judicial or ministerial officer", says Parker on Election Agent and Returning Officer, Fifth Edition, page 30.
The true 1018 view, according to him, is that he partakes of both characters, and that in determining objections to nomination papers, he is a judicial officer.
That is also the view taken in Indian decisions.
But before we can hold that the proceedings before a returning officer resulting in the acceptance or rejection of a nomination paper fall within section 195(1)(b) of the Code of Criminal Procedure, it must be shown not merely that they are judicial in character but that further he is acting as a Court in respect thereof.
It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust to them work of a judicial character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by Lord Sankey, L.C. in Shell Company of Australia vs Federal Commissioner of Taxation(1), some of the trappings of a Court.
The distinction between Courts and tribunals exercising quasi judicial functions is well established, though whether an authority constituted by a particular enactment falls within one category or the other may, on the provisions of that enactment, be open to argument.
There has been considerable discussion in the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from a tribunal exercising quasi judicial functions.
Vide Shell Company of Australia vs Federal Commissioner of Taxation(1), R. vs London County Council(2), Cooper vs Wilson(3), Huddart Parker and Co. vs Moorehead(4), and Rola Co. vs The Commonwealth(5).
In this Court, the question was considered in some fulness in Bharat Bank Ltd. vs Employees of Bharat Bank Ltd.(6).
It is unnecessary to traverse the same ground once again.
It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment.
To decide in a judicial manner involves that the parties are entitled as (1) ,296.
(3) (5) ; (2) (4) ; (6) ; 1019 a matter of right to be heard in support of their claim and to adduce evidence in proof of it.
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law.
When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.
We have now to decide whether in view of the principles above stated and the functions and powers entrusted to the returning officer under the Act, be is a court.
The statutory provision bearing on this matter is section 36.
Under section 36(2), the returning officer has to examine the nomination paper and decide all objections which may be made thereto.
This power is undoubtedly judicial in character.
But in exercising this power, he is authorised to come to a decision "after such summary enquiry, if any, as he thinks necessary".
That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case.
There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under section 36.
The returning officer is entitled to act suo motu in the matter.
When one compares this procedure with that prescribed for trial of election petitions by the Election Tribunal under sections 90 and 92 of the Act, the difference between the two becomes marked.
While the proceedings before the Election Tribunal approximate in all essential matters to proceedings in civil courts, the proceedings under section 36 present a different picture.
There is no lis, in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner, but an enquiry such as is usually conducted by an ad hoc tribunal entrusted with a quasi judicial power.
In other words, the function of the returning officer acting under section 36 is judicial in character, but he is not to act judicially in discharging it.
We are of opinion that the returning officer deciding on 129 1020 the validity of a nomination paper is not a Court for the purpose of section 195 (1) (b) of the Code of Criminal Procedure, and the result is that even as regards the charge under section 193, the order of the Magistrate was not appealable, as the offence was not committed in or in relation to any proceeding in a Court.
In this view, the learned Sessions Judge was right in dismissing the appeal as incompetent, and the question argued by Mr. N. C. Chatterjee that the learned Judge of the High Court ought to have remanded the case for hearing by the Sessions Judge on the merits does not arise.
It was next argued for the appellant that as the application for initiating prosecution under section 193 was made under section 476 on the assumption that the returning officer was a court, the order passed thereon must, in the view that he was not a Court, be quashed as without jurisdiction.
But then, it should be noted that the application was presented under section 195 also, and it was necessary to move the returning officer under section 195(1)(a) with reference to the offences under sections 181 and 182, and there could be no question of quashing the order as without jurisdiction.
Even as regards section 193, the position is this: It has no doubt been held that section 476 must be taken to be exhaustive of all the powers of a Court as such to Jay a complaint, and that a complaint filed by it otherwise than under that section should not be entertained.
But there is abundant authority that section 476 does not preclude the officer presiding over a Court from himself preferring a complaint, and that the jurisdiction.
of the Magistrate before whom the complaint is laid to try it like any other complaint is not taken away by that section.
Vide Meher Singh vs Emperor(1) , Emperor vs Nanak Chand(2), Har Prasad vs Emperor(3) and Channu Lal vs Rex(4).
There is thus no legal impediment to a returning officer filing a complaint under sections 181 and 182 as provided in section 195 (1) (a) and charging the accused therein with also an offence (1) A.I.R. 1933 Lah. 884.
(3) A.I.R. 1947 All. 139.
(2) A.I.R. 1943 Lah. 208.
(4) 1021 under section 193.
In this connection, it should be mentioned that the appellant himself took the objection before the Magistrate that qua returning officer he was not a Court and that the proceedings under section 476 were incompetent, and that that was overruled on the ground that it was an enabling section.
There is, therefore, no ground for holding that the order dated 17 9 1952 was without jurisdiction.
It was finally contended that the Magistrate was under a misapprehension in stating that the appellant had declared that he was born a Balmiki, whereas, in fact, he only declared that he was a Balmiki by caste.
But it was the appellant himself who pleaded in his counter affidavit that he was not a Muslim by birth, and was born in a Balmiki Hindu family, and the observation of the Magistrate has ob vious reference to what was pleaded and argued by the appellant.
And it should also be noted that no objection was taken either in the grounds of appeal to the Sessions Court or in revision to the High Court with reference to the above remark.
Moreover, the charge as laid in the complaint is that the declaration of the appellant in the nomination paper that he "was a member of the Balmiki caste" was false.
There is accordingly no substance in this contention.
It must be emphasised that in the view that the order of the Magistrate dated 17 9 1952 was final, this appeal being really directed against that order there must be exceptional grounds before we can interfere with it in special appeal, and none such has been established.
On the other hand, whether action should be taken under section 195 is a matter primarily for the Court which hears the application, and its discretion is not to be lightly interfered with in appeal, even when that is competent.
But where, as here, the legislature does not provide for an appeal, it is preposterous on the part of the appellant to invite this Court to interfere in special appeal.
This appeal is accordingly dismissed.

dataset_name: IN-Abs

summary/full:
Held that a Returning Officer acting under se. 33 and 36 of the Representation of the People Act, 1951 and deciding on the validity or otherwise of a nomination paper is not a court within the meaning of sections 195(1)(b), 476 and 476 B of the Code of Criminal Procedure.
Shell Co. of Australia vs Federal Commissioner of Taxation ([1931] A.C. 275 at 296), B. vs London County Council ([1931] 2 K.B. 215), Cooper vs Wilson ([1937] 2 K.B. 309), Huddart Parker and Co. vs Moorehead ([1908] ; , Rola Co. vs The Commonwealth ([1944] ; , Bharat Bank Ltd. vs Employees of Bharat Bank Ltd. ([1950] S.C.R. 459), Mehar Singh vs Emperor, (A.I.R. , Emperor vs Nanak Chand (A I.R. , Har Prasad vs Emperor, (A.I.R. 1947 All. 139) and Channu Lal vs Rex ([1950] , referred to.


judgement:
N: Review Petition No. 2 of 1977.
(Petition for review of this Court 's order dated 22 9 1976 in Crl.
M.P. Nos.
1567, 1600 1601/76).
Sital A.K. Dhar, for the petitioner.
R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
If 'survival after death ' may aptly describe any litigative phenomenon, the present review proceeding may well qualify for that quaint claim.
The relief of review relates to the death penalty imposed upon the petitioner by the trial court, confirmed in appeal, and dismissed even at the stage of special leave by this Court.
In the ordinary course, judicial finality, has thus been affixed on the capital sentence so awarded although Presi dential clemency, which has been sought and negatived, may still be open under Article 72 of Constitution.
Mercy, like divinity, is amenable to unending exercise but in this mundane matter it is for the Head of State to act and not for the apex Court.
Sombre sentencing is the Fifth Act in the tragedy of a murder trial and, for the Judges of the Supreme Court, assumes a grim seriousness and poignant gravity since the petitioner 's final appeal for judicial commutation, if rejected, may perhaps prove imminently fatal to his life.
Even so, vhen we chronicle the events connected with the judicial proceedings in this Court it will be realised that our review power has repeatedly been invoked in vain ' and naturally a further exercise of the same power must be justified by the compelling pressure o[ fresh circumstances within the limits of the law.
The nature of the judicial process, even at the tallest tower, is such that, to use Gardozo 's elegant expressions, 'a judge even when he is free, is still not wholly free; he is not to innovate at pleasure; he is not a knight errant, roaming at will in pursuit of his own ideal of beauty of of goodness; he is to draw inspiration from consecrated principles '.
Where the Judge 's values and those prevailing in society clash, the judge must, in theory give way to the 'objective right '.
174 The focus, therefore; must turn on the existence of grounds of manifest miscarriage of justice unavailable on the earlier occasions.
Before that, a brief reference may be made to the 'criminal ' facts.
A treacherous murder of a tender school boy by the petitioner, the circumstances of which were so heartless and heinous, terminated condiguly at the trial court and the High Court, the extreme penalty having been visited on the offender for his horrendous killing.
This Court refused special leave to appeal, drawing the dark curtain ' on the criminal proceedings.
The petitioner struggled to extricate himself from the executioner by a sequence of desperate steps.
On his behalf, a motion for re hearing the special leave petition was fruitlessly made to this Court.
A review petition was made again to this Court in vain.
Yet another, out of the same motive but with modified reliefs, was made and dismissed.
Then followed an application for directions regarding remand of the case to the court of sessions for reconsideration of the sentence in the light of section 235(3) of the Code of Criminal Procedure, 1973.
Dismissal of this proceeding did not deter the petitioner from persisting in moving this Court.
That is how the present review peti tion has been put in on his behalf by his father.
Mercy petitions to the President punctuated the court proceedings but they too were turned down.
The convict, nevertheless, clung on and.
as stated earlier, his pathetic persistence in the plea for commutation has been pressed before us by counsel on two scores.
He has urged that a decision of this Court in Santa Singh vs State of Punjab(1) of which he was not aware at the earlier stages entitles.
him to a remand to the Sessions Court for reconsideration of the sentence of death.
Secondly, he has also pressed upon us personal and social circumstances which have re ceived judicial approval as justifying the imposition of the lesser sentence of life imprisonment even where the offence of murder has been made out.
In the ordinary course, the supplicant 's forensic battle for life must be repelled by us since this Court has refused leave, rejected review petitions and denied reconsideration.
Even so, realising that by this prolonging proceeding he is longing for dear life and clutching at legal straws, we have desisted from a dramatic rejection of the petition outright, anxious to set if there be some tenable ground which reason ably warrants judicial interdicts to halt the hangman 's halter.
We were willing to strain, within permissible limits, to blend leniency with legality. 'The last breath ' is the last hold of the law on the living to do justice and at that point judges, while hating the crime, do not hate the man who committed it, such being the humanism of penal justice.
Circuit Judge Christmas Humphreys told the B.B.C. Reporter recently that a judge looks "at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself".
In the context of Karuna and punishment for Karma the same Judge said: (1) Criminal Appeal No. 230 of 1976 decided on 17 8 76.
175 "The two things are not incompatible.
You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful.
You feel with him; that is what compassion means." (The Listener, d/25.11.1976, P. 692) But if the harsh frontiers ' of the criminal are clearly drawn, to travel beyond is out of bounds for the court.
The focus of counsel 's first submission was turned on the compassion of the Code of Criminal Procedure, 1972 which obligates the court, under section 235, to hear the convict on the question of sentence.
The provision is salutary although its application to the present case is moot, in the light of.
section 484 of the Code.
Without pausing to decide whether the new Code applies, we have extended to the petitioners the benefit of the benignant provision and allowed his counsel to present the circumstances he relies on to activate our commiserative jurisdiction.
It is true that the New Code provides many additional facilities for persons accused of crime.
, the paramount idea being to avoid an innocent man being mistakenly found guilty or punished disproportionately.
In the present case, the conviction has become conclusive and only the question of sentence is being argued for extenuating consideration.
Even so, sometimes one is led to wonder whether the words of Learned Hand have some relevance to the Indian system.
The learned Judge said of the American system: "Under our criminal Procedure, the accused has every advantage.
While the prose cution is held rigidly to the charge, the accused need not disclose the barest outline of his defence.
He is immune from questioning or comment on his silence; he cannot be con victed when there is the least fair doubt in the minds of anyone of the 12 Jurers.
Our procedure has always been haunted by the ghost of the innocent man convicted.
It is an unreal dream.
What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prose cution of crime".
We advert to this aspect only to emphasize a sense of perspective in the judiciary when applying the protective procedural provisions of the Code.
Sentencing under the Indian scheme, is not yet realistically forward looking nor correctionally flexible but Parliament in its wisdom, may examine this inadequacy.
The penalty of death is an irrevocable process and naturally our pensive thought was turned to the moral jural aspects of the utility and futility of this deadly sanction of State against citizen of hanging a human being into a cold oadaver.
The miscellany of ideological sociological jural considerations, although not pertinent within the 176 narrow horizon of a court of law, has a fascinating and portentous significance when we remind ourselves that the Supreme Court goes beyond chopping little law into spacious jurisprudence on great occasions and our Penal Code is itself under review before Parliament.
This prolegomenon to the principles of capital sentence is our alibi for a brief divagation into the basics of infliction of death as a weapon of extinction society uses against its terribly deviant members as beyond deterrence.
Is the death penalty a purposeful punitive strategy or legitimate legal weapon, viewed against the advanced peno logical goals of reformation, deterrence and social defence ? Why is death terrifying and what are the objects of punishment served by its infliction ? The literature on doing justice at the sentencing stage is profound and proliferating and penological controversy on death penalty has led to a Great Divide among sociologists, jurists and spiritualists.
To go eggregiously wrong on punishment is to commit the crime ' of sentence and, natural ly, since taking the life of the prisoner neither prevents him nor reforms him (for he is no more), theories supporting capital punishment prove self defeating.
Moreover, the irreversible step of extinguishing the offender 's life leave society with no opportunity to retrieve him if 'the ' convic tion and punishment be found later to be rounded on flawsome evidence ' or the sentence is discovered to be induced by some phoney aggravation, except the poor consolation of posthumous rehabilitation as has been done in a few other countries for which there is no procedure in our system.
May be, these are campaign points of abolitionists against capital sentence.
Envisioned from another fundamentally different angle, is the dread of death penalty a deterrant ? Socrates would not recant, Jesus would not plead, St. Joan would not deny with the cup of poison, bleeding crucifixion and burning stakes starting them in the face as punishment.
Why, Higher Truth, acting through its inspired agents, taunts human law; for, then the body 'gives little purchase over the soul, as Gandhiji demonstrated by defiance of British Indian 'justice '.
And, more dramatically yet dimly, psychic, electronic and medical explorations, scientifically conducted, are reportedly revealing through fascinating flashes of research and recording and extraordinary but tested investigations into rebirth, that death is only discarnation, not utter dissolution, that after 'death ' we survive and act in a demonstrable, subtle dimension of existence.
No longer is this thesis projected as faith but sought to be proved as fact.
If, in the not distant future, the greatest of all man 's fears fear of death is dispelled by the finding of poetic science proving that you live after 'death ' and can communicate with the 'living ', that the confusion between discarnation and death can be scientifi cally explored and cleared, a revolution in the penological programmes of society would have dawned.
The trans physi cal human future, as sciences unravel, may make our current penal strategies obsolescent.
At Court, current criminal law binds us willy nilly and we have to abandon the subject suggestively.
The basic issue 'What is death ? ', may engage us psycho criminologically, although a wee bit digressively for a moment, to assess the 177 social impact of the death penalty.
By and large, humankind holds fast to the belief that death is a total extinction of dear life and views its arrival through the executioner 's rope or electric chair or firing squad with awesome horror.
With poetic pragmatism, Shakespeare expressed this common feeling when he referred, in the context of death, to 'that undiscovered country from whose journ no traveller returns '.
There are others, however and among them are ancient seers, modern divines and several psychic researchers in institutes who regard as super senSory.
Reality or scientific verity that there is life after life, that the phenonmenon of death may even have a liberating effect, that the grosset exist ence is in corporeal life and the subtler in the incorporeal state and life death life is a continuum.
Our sages assert with vision that deathbound littleness iS not all we are and great death as integral to the life process.
Many scien tists are investigating what happens after death and lifting the dark veil with luminous evidence of ethenic survival.
Even so, most men even pious ones are earthy materialists, and, in our work a day world, take it an axiom that it is given to us to live but once.
The law, a people 's practical scheme, which operates on the behavioral patterns and psyche of the humdrum run of mortals, steers clear of super scientific and mystic may be and grounds itself on the hard headed realist 's view that the sentence of death is the maximum punishment as it puts the criminal out of material existence.
Indeed, it is a fiercely final step for mortals and, in a sense, abhorrent because survival after death, though slowly, murkily, falteringly, gaining scientific, ground, is still suspect and has not made headway into the thoughtways of jurisprudes and legislators, rationalists and practical people.
If after life and re birth are verities, as many poetic scientists claim to prove beyond easy dis missal both penology and criminology will undergo re evalu ation.
For, as punishment 'death penalty ' will cease to be terrible and criminologyically, crime will be inescapably punished 'in this life or on re birth, These futuristic projections are of no practical consequence now.
Jurispru dence has to react to and build upon established belief systems, branches of human knowledge and behavioral sciences.
But these problems are more Tomorrow 's challenge to philosophers, spiritualists, social and mental scientists, fundamental thinkers, parliamentarians and penal reformers.
The Bench, with all its will to break through, is bound by a jurisdictional servitude.
This fetter is, as stressed by Government counsel, that if there is no legal ground for the alleged grievance, the Court cannot grant relief.
The Court enters a province of 'powerless power ' and finds itself in a quandary between codified law and progressive thought.
The latter beckons, but the former binds.
We divagated into the import and portent of life and after life on capital sentence not because these distant, dubious searches have immediate legal standing but merely to show how we may be swept off our feet if we chase 'tomorrow ' theories, especially since law in court is hard realism.
To day for the condemned prisoner, the day of execution is the dreadful last day of life.
Even so, critics like Bec caria have said 'the death penalty cannot be useful, because of 178 the example of barbarity it gives men .
It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it '.
On the other hand, the deterrent and retributive theorists prevail amongst penologists and lextalionis con tinues in sublimated form Orthodox jurists have shared the view of Genesis 9:6: "Whosoever sheddeth a man 's blood, so shall his blood be shed." To epitomize, in this blurred area of criminal jurisprudence we are lost in the conflict between ideals, theories and research findings and the subject remains so fluid that legislative decision making and jurisprudential debate must crystallize into a Code before the Court can activise these norms or incorporate them as judge made law.
The plea of counsel against death penalty has topical favour and echoes the recent American debate.
To abbrevi ate.the discussion, We content ourselves with adverting to the judicial division of opinion in the Supreme Court of U.S.A. in Gregg vs Georgia (decided on July2, 1976) wherein Mr. Justice Brennan, in his dissenting Judgment,drove home his point thus: "I emphasize only that foremost among the moral concepts ' recognized in our cases and inherent in the clause is the primary moral principle that the state, even as it punish es, must treat its citizens in a manner con sistent with their intrinsic worth as human beings a punishment must not be so severe as to be degrading to human dignity.
A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the clause.
Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the clause that prohibits point less infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.
" Mr. Justice Marshall added the weight of his opinion: "The two purposes that sustain the death penalty as non excessive in the court 's view are general deterrence and retribution.
The Enrlich study, in short, is of little, if any assistance in assessing the deterrent impact of the death penalty.
The evidence I reviewed in Furman remains convincing in my view, that 'capital punishment is not neces sary as a deterrent to crime in our society.
The justification for the death penalty must be found elsewhere.
The other principal purpose said to be served by the death penalty is retribution.
The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my brothers Stewart, Powell, 179 and Stevens, and that of my brother White in Roberts vs Louisians.
It is thin notion that I find to be the most disturbing aspect of to day 's unfortunate decision.
The foregoing contentions that socie ty 's expression of moral outrage through the imposition of the death penalty preempts the citizenry from taking the law into its own hands and reinforces moral values are not retributive ' in the purest sense.
They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results.
These justifications for the death penalty are inadequate because the penalty is, quite clearly I think not neces sary to the accomplishment of those results.
There remains for consideration, howev er, what might be termed the purely retribu tive justification for .the death penalty that the death penalty is appropri ate, not because of its beneficial effect on Society, but because the taking of the murder er 's life is itself morally good.
Some of the language of the plurality 's opinion appears positively to embrace this notion of retribu tion for its own sake as a justification for capital punishment." These American views of eminent judges deserve deferential notice but do not aid us in the decision of this Indian Appeal which relates to implementation of a valid sentence since, under the Indian Code, death penalty.
has been ruled to be constitutional.
The law having sanctioned it and this Court haying refused special leave against conviction and sentence.
in this very case, it is a vanquished cause to argue for a vague illegality vitiating capital sentence as such.
To that extent the pall must fall.
Counsel for the petitioner brought to our notice a number of recent decisions of this Court where judges have expressed themselves in favour of a sentencing policy of life term as against death penalty.
In Ediga Annamma ; the Court pointed to the retreat of death penalty as part of punitive strategy in many countries of the world.
Counsel cited rulings of this Court to show that where the murderer too young or too old or the haunting horror of being hanged has been hovering over his head for a few years or the condemned prisoner is the sole bread winner of the whole family, the lesser sen tence of life imprisonment should be the judicial choice.
He brought to our notice the social and personal circumstances in the present case relevant to the above approach.
Undoubtedly, the prisoner was a young man around 21/22 years when he committ`d the crime.
He claims that his young wife will be helpless, that upon him depends the family for livelihood, that his mother is blind, that all of them will have a miserable, indigent life If, the petitioner were to be extinguished from earthly existence.
He also emphasised that since 1974 the sentence of death had been shattering his morale.
It must, however, be pointed out that counsel for the State refuted some of the more important of these grounds and went to the extent of even stating that the petitioner 's wife had remarried.
180 In Ediga Annamma this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally clearly highlighted that in India under present conditions deterrence through death penalty may not be a time barred punishment in some frightful areas of barbarous murder.
Illustratively, the Court has mentioned that the brutal features of the crime and the hapless and helpless state of the victim steel the heart of the law to impose the sterner sentence.
The law is thus harsh and humane and when faced with arguments about the social invalidity of the death penalty the personal predilections of the Judge must bow to the law as by this Court declared, adopting the noble words of Justice Stenley Mosk of California uttered in a death sen tence case: "As Judge, I am bound to the law as I find it to be and not as fervently wish it to be".
(The Yale Law Journal No. 6, p. 1138).
A learned writer on the Indian Constitution has observed : " . judges must enforce the laws, whatever they be, and decide according to the best of their lights; but the laws are not always just, and the lights are not always luminous.
Nor, again are judicial methods always adequate to secure justice.
" We have given deep consideration to the many circumstances pressed by the petitioner 's counsel to review our earlier orders dismissing review and refusing special leave to appeal.
While we agree that Judges, like others are falli ble and their findings are not 'untouchably ' sacrosanct, we disagree that on an overall view of the many circumstances of the crime and the criminal in the present case, the sentence of death should be departed from.
Recognized grounds such as manifest injustice induced by obvious curial error or oversight, or new and important matter .not reasonably within the ken or reach of the party seeking review on the prior occasion, may warrant interfer ence, to further justice.
The scenario of events in this case rules out the arguments urged by counsel.
Hearing is obligatory at the sentencing stage under the New Criminal Procedure Code.
The humanist principle of individualising punishment to suit the person and his circumstances is best served by hearing is obligatory at the sentencing stage under the New Criminal imposed.
In the present case, the date of commencement of the trial ,might rule out the applicability of the new Code.
Moreover, he had already come to this Court seeking special leave to appeal at a time when the new Code was in force.
He did not urge the ground of denial of opportunity to be heard at the sentencing stage.
Assuming indulgently in his favour that he came to know the correct law on this branch only after the decision of this Court in Shant Singh (Supra), his earlier application for review was disposed of after that ruling was rendered by this Court.
Even then the present grievance of non hearing was not pressed.
He has missed the bus and his contention based on the new Code is of doubtful substance.
Even so, having regard to the compassion that must temper the rigour of rigid 181 rules we have allowed counsel a fresh opportunity to put forward before us, after taking instructions from his cli ent, all the circumstances the Court should consider by way of ameliorative gesture and reduction of the death penalty to a life term incaraceration.
The heinousness of the crime is a relevant factor in the choice of the sentence.
The circumstances of the crime, especially social pressures which induce the crime which we may epitomise as a just sentence in an unjust society ' are another consideration.
The criminal, not the crime, must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.
The Penal Code does not give the Judge a free hand where murder has been made out.
The choice is painfully not quite scientifically though limited to but two alternatives.
We have given reasons why, as the law now stands, we decline to demolish the death sentence.
We therefore, dismiss the review peti tion.
The judicial fate notwithstanding, there are some cir cumstances suggestive of a claim to Presidential clemency.
The two jurisdictions are different, although some consider ations may overlap.
We particularly mention this because it may still be open to the petitioner to invoke the mercy power of the President and his success or failure in that endeavour may decide the arrival or otherwise of his dooms day.
With these observations we leave the 'death penalty ' Judicially 'untouched '.
S.R. Review petition dismissed.

summary/full:
The petitioner was convicted u/s 302 I.P.C. and sen tenced to death by the. trial court which was confirmed by the High Court.
The Special Leave application, to this Court was dismissed.
A further petition for rehearing and a review petition thereafter having 'been dismissed, a peti tion for directions regarding demand of the case to the court of Sessions for reconsideration of the sentence in the light of s.235(3) of the Criminal Procedure Code 1973, was made, simultaneously with mercy petitions to the Presi dent.
The mercy petitions to the President and the peti tion for direction to tiffs Court having been rejected the petitioner 's father moved the instant review petition.
Dismissing the petition the Court.
HELD: (1) This court 's review power has repeatedly been invoked ire vain and naturally a further exercise of the same power must be justified by the compelling pressure of fresh circumstances within the limits of law.
Recognised grounds such as manifest injustice induced by obvious curial error or oversight or new and important matter not reasona bly within the ken or reach of the party seeking review on the prior occasion, may warrant interference to further justice.
(2) Under the Indian Penal Code death penalty has been ruled to be constitutional.
The law having sanctioned it and this Court having refused special leave against convic tion and sentence in this very case, it is a vanquished cause to argue for a vague illegality vitiating capital sentence as such.
[179 D E] Gregg vs Georoia, U.S. Supreme Court decided on July 2, 1976 held not applicable.
(3) In India under present conditions deterrence through death penalty may not be a time barred punishment in some frightful areas of barbarous murder.
illustratively the court has mentioned that the brutal features of the crime and the hapless and helpless state of the victim steel the heart of the law to impose the sterner sentence.
[180 A B] Ediga Annamina vs State of A.P., ; ex plained.
(4) The law is thus harsh and humane and when faced with arguments about the social invalidity of the death penalty the personal predilections of the judge must bow to the law.
The Bench with all its will to break through is bound by a jurisdictional servitude.
This fetter is that if there is no legal ground for the alleged grievances the court cannot grant relief.
The court enters a province of "powerless power" and finds itself in a quandary between codified law and progressive thought.
The latter beckons, but the former binds [180 B, 177 F G] (5) Hearing is obligatory at the sentencing stage under the new Criminal Procedure Code.
The humanist principle of individualising punishment to suit the person and his cir cumstances is best served by hearing the culprit even on the nature and quantum of the penalty to be imposed.
(6) The heinousness of the crime is a relevant factor in the choice of the sentence.
The circumstances of the crime, especially social pressures which induce the crime which may be epitomised as "a just sentence in an unjust society" are another considerations.
The criminal.
not the crime.
must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other meas ures to prevent recurrence, are weighty factors.
Sombre sentencing is the Fifth Act in the tragedy of a murder trial and for the judges of the Supreme Court, assumes a grim seriousness and poignant gravity.
The Penal Code does not give the judge a free hand where murder has been made out.
The choice is painfully not quite scientifical ly though limited to but two alternatives.
A C] Observation: [Sentencing under the Indian scheme is not yet realistically forward looking nor correctionally flexi ble, but Parliament in its wisdom may examine this inadequa cy].