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PETITIONER: CHAWLA AND ANOTHER

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT12/02/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KRISHNAIYER, V.R.

CITATION:  1974 AIR 1039            1974 SCR  (3) 340  1974 SCC  (4) 579  CITATOR INFO :  MV         1982 SC1325  (69)

ACT: Criminal  law--Practice  and  Procedure--Sentence  of   life imprisonment for murder, when may be granted.

HEADNOTE: Six  accused were charged with the murder of three  persons. Two  of the accused-the appellants-were convicted of  murder of  two of the deceased, respectively and were sentenced  to death  by the High Court in appeal.  The other four  accused were sentenced to life imprisonment. In  appeal  to this Court, regarding the sentence  of  death passed on the two appellants, HELD : The death sentence should be commuted to imprisonment for life. for the following reasons :- (a)  It  was  probable  that the  tragedy  was  provoked  or precipitated by the blame-worthy and intransigent conduct of the deceased in regard to the retaining or taking possession of the land that had been finally allotted to the accused by the  Consolidation authorities, and over which  land,  there were disputes between the accused and the deceased. (b)  The  first appellant was responsible for  causing  only one out of the 3 fatal injuries received by the deceased for whose murder he was convicted.  Probably, that was the  only blow  given  by him to the deceased, while the  remaining  6 punctured  wounds were all caused by the other  accused  who were awarded the lesser sentence. (c)  The  appellants are immature youths who appear to  have acted at the instigation of their elder. (d)  The  appellants  must have  suffered  prolonged  mental torture on account of their being constantly haunted by  the specter of death for one year and 10 months ever since  they were sentenced to death by the trail court. Moreover  the Court has now a discretion to award either  of the  two penalties prescribed under s. 302, Penal Code,  and death  sentence  is now exacted only where  the  murder  was perpetrated with marked brutality. [346 E-347 C] Vivian Rodrick v. The State of West Bengal, A.I.R. 1971 S.C. 1584;  Gurdip  Singh v. State of Punjab,  A.I.R.  1971  S.C. 2240, State of Maharashtra.  V. Manglye Dhavu Kongil, A.I.R. 1972  S.C.  1797, State of Bihar v. Pashup  all  Singh’  and

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another, A.I.R. 1973 S.C. Gajanand and ors. v. State of U.P. A.I.R.  1954 S.C. 695, and Ediga Anamma v. State  of  Andhra Pradesh, Cr.  A. 67/73 decided on 11-2-74, followed. Brij Bhukhan and ors. v. State of U.P. A.I.R. 1957 S.C. 474, Mizali and anr. etc. v. State of U.P. A.I.R. 1959, S.C.  572 and  Jagmohan  Singh v. State of U.P. Cr. L.J.  370  (S.C.), referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 109 of 1973. Appeal  by Special leave from the judgment and  order  dated the 13th November, 1972 of the Punjab and Haryana High Court at  Chandigarh in Criminal Appeal No. 493 of 72  and  Murder Reference No. 21 of 1972. N.   S. Das Bahl, for the appellants. 341 V. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by SARKARIA J. The facts giving rise to this appeal by  special leave are as under :  Jagga  had  three sons; Bishna, Ram Lal and Har  Lal.   Ram Dia,  Dal  Singh  and Ram Singh deceased were  the  sons  of Bishna.   Ram Lal and his sons, Chawla and Dhanna, Har  Lal, his  son, Puran, and Har Lal’s grandson, Mukhtiara, are  the accused in this case. During  consolidation  operations in their  village,  Deora, dispute  arose between Ram Lal and Har Lal on one  side  and Bishna on the other, over the allotment of a plot, measuring 4-1/4  acres.  This plot was allotted by  the  Consolidation Officer to Bishna; but in revision, the Additional Director, Consolidation  on  May 4, 1968, set aside the Order  of  the Consolidation  Officer  and allotted it to Ram Lal  and  Har Lal,  accused.  Bishna died and the deceased succeeded  him. Aggrieved,  the deceased persons moved the High Court  under Art.  226 of the Constitution for bringing up  and  quashing the  order of the Director.  The High Court  dismissed  this petition  ’on  July  14, 1971 and upheld the  order  of  the Director.  On October 4, 1971, the Assistant Collector  made an  order  that,  in  implementation of  the  order  of  the Director  of  Consolidation, the land be demarcated  at  the spot  and  possession delivered to the  allottees.   It  was further  directed that the land be mutated in favour of  the allottees.   On October 5, 1971, the Kanungo, in  compliance with  the Assistant Collector’s ’order, demarcated the  land at the spot and delivered symbolical possession of Kila Nos. 129/7,  129-17/1,     129/14, 129/16  as those  fields  were under  crop.   He delivered actual possession of  the  other fields,  comprised  in the allotment, which were  not  under crops, including Khasra No. 129-6/2 to the accused, Ram  Lal and Har Lal.  The deceased persons, however, did not  submit to this symbolical and actual delivery of possession.   They instituted a suit in the Civil Court at Kaithal and obtained an ex parte interim injunction restraining the accused  from taking  possession of the land.  This injunction was  served on Ram Lal accused on November 5, 1971. On  November  11,  1971, Ram Dia, Dal Singh  and  Ran  Singh deceased  went to the fields with their ploughs.  Dal  Singh started reaping chari crop, Ran Singh started ploughing, the field, while Ram Dia went on a round of the field.  At about 11  a.m., all the six accused, in a body reached the  field. Puran and Ram Lal were armed with Suas (iron-spiked sticks), Dhanna  with  a Gandasa, and Har Lal, Mukhtiara  and  Chawla

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with  lathis.   On reaching the spot, Har Lal  exhorted  his companions  to kill the deceased.  Thereupon, Chawla,  Puran and Ram Lal gave blows with their respective weapons to  Ram Dia, Ran Singh came to the rescue of his brother. thereupon, Dhanna  and  Mukhtiara assaulted him with  their  respective weapons.   Dal  Singh  interceded but all  the  six  accused belaboured him.  The occurrence was witnessed by Smt.  Mali, Nasib  Singh  and Shadi who had run to a safe  distance  and stood there.  After the assault, the accused ran away taking their  weapons  with them.  Ram Dia died at the  spot..  Dal Singh succumbed to 342 his  injuries  after  his admission in  the  Civil  Hospital Kaithal,    while    Ran   Singh    expired    in    Medical College/Hospital, Rohtak on November 13, 1971. The Sessions Judge convicted and sentenced Chawla, Puran and Mukhtiara  accused to death under s.302/34, Penal Code.   He further  convicted them under s.302/149 on three counts  and sentenced them each to imprisonment for life.  A  conviction under  s.148,  Penal  Code with a  sentence  of  one  year’s imprisonment each was also recorded.  The remaining  accused were also convicted under ss. 302/149 and 34 and 148,  Penal Code and on the capital charge sentenced to imprisonment for life, each. On  appeal,  the High Court commuted the death  sentence  of Puran to one of imprisonment for life on the ground that  it was not known as to which of the three fatal injuries to Ram Dia  had  been  caused by Puran.   It  confirmed  the  death sentences  of  Chawla  and  Mukhtiara,  for  committing  the murders  of  Ram  Dia, and  Ran  Singh,  respectively.   The conviction  of Ram Lal, Har Lal and Dhanna under  ss.302/149 was also maintained. Special  Leave in this case was granted only with regard  to the  capital  sentence inflicted on  Chawla  and  Mukhtiara, appellants. Mr.  Behal, learned amicus curiae has urged that  the  death sentences  were not justified because of  these  alleviating circumstances               (a)   The  cause of the tragedy can be  traced               to  the  unreasonable,  stubborn,  and  blame-               worthy conduct of the deceased in retaking  or               retaining possession of the land that after  a               protracted   litigation,  had   been   finally               allotted and made over to the accused party by               the  Director of Consolidation.  The  violence               seems to have erupted because of the  wrongful               act of the deceased in ploughing Kila No.  6/2               etc., actual possession of which had been duly               delivered  by the  Consolidation  Authorities,               earlier  to the accused party.  Ram Dia  armed               with a stick was on guard duty while the other                             deceased  were ploughing or sowing in the  dis-               puted  land.  Ram Dia provoked the assault  by               dealing blows with a stick to Har Lal accused.               (b)  In the case of Chawla appellant,  it  was               not clear whether any fatal injury to Ram  Dia               was  caused  by  him.  In  any  case,  it  was               unreasonable  to  mark  him  out  for  capital               punishment  for  inflicting only  one  of  the               three  fatal injuries with a lathi,  when  the               coaccused to whom the punctured, fatal  wounds               were attributed, have been awarded the  lesser               penalty.               (c)   That Chawla and Mukhtiara appellants are

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             raw   youths,   aged   25   and   24    years,               respectively,  who  probably acted  under  the               instigation  of  their father;  and  that  the               death  sentence has been hovering  over  their               heads for an agonisingly long period of  about               1 year 343 and 10 months. The  above  circumstances,  according to  Mr.  Behal,  taken separately  as  well  as  collectively,  furnish  sufficient ground  for mitigation of the capital  sentence.   Reference has  been  made  to the decisions of this  Court  in  Vivian Rodrick  v.  The State of West Bengal;(1)  Gurdip  Singh  v. State  of  Punjab;(2) State of Maharashtra v.  Naglya  Dhavu Kongil;(3) State of Bihar v. Pashupati Singh and  another(4) and Gajanand and ors. v. State of U.P.(5) On  the other hand, Mr. Vikram Mahajan, learned Counsel  for the State vehemently contends that none of the circumstances pointed  out by Mr. Behal is a good extenuating factor.   It is   emphasised   that  the  accused  went  armed   with   a determination   to  kill  the  deceased  persons  and   they succeeded  in  their nefarious design.  This was a  case  of cold-blooded triple murder and no leniency in the matter  of sentence  wag called for.  It is argued that the  mere  fact that  the murders were committed at the exhortation  of  the eldest  accused  Har  Lal,  was no around  in  law  for  not inflicting the capital sentence on the appellants.  He  ha-, further  pointed  out that the mere fact that  a  period  of about  1 year and 10 months has elapsed since the  award  of the capital sentence, which is mainly due to the  protracted proceedings, is no ground for reducing the capital sentence. In  support of his arguments, learned Counsel has relied  on Brij Bhukhan and ors. v. State of U. P.;(6) Mizaji and  anr. etc. v. State of True,  according  to the finding of the  courts  below,  the occurrence  took place actually in Kila No. 6/1, and not  in Kila  No. 6/2, which was in dispute.  The very numbering  of these  fields by the Settlement authorities shows that  they are  sub  divisions  or parts of the same  Kila  No  6.  The disputed  land  was  thus  intermingled  with  the  plot  of occurrence.   The  deceased were feeling  aggrieved  by  the partition  and  allotment  of this land  including  Kila  6. Indeed,  despite  the  conclusion of  the,  dispute  by  the consolidation  authorities,  the deceased  were  keeping  it alive.   The  Kanungo’s Report (Ex.PJJ).  dated  October  5. 1971. whereby possession of the disputed land was  delivered to  the accused party. shows that Kila No. 6/2 in  Rectangle No.  129  was  one  of  those  disputed  plots,  the  actual possession of which had been delivered to the accused party. It was the prosecution case, itself. that shortly before the assault,  Ram  Singh was ploughing to sow wheat,  while  Dal Singh  was  cutting  chari from the field  adjacent  to  the disputed land and Ram Dia was having a round of the  fields, possibly  to keep a watch against the’ accused.   Chawla  in his examination under s .142- Cr- P. C. gave this version of the incident-- (1)  A. I. R. 1971 S. C. 1584; (2)  A. I. R. 1971 S. C. 2240, (3)  A. T. R 1972 S. C. 1797; (4)  A. T. R. S. C. 2699 (5)  A.I.R. 1954 S.C. 605. (6)  A. T. R. 1957 S. C. 474 (7)  A. I. R. 1959 S. C.572 (8)  Cr.  L. J. 370 (S.  C.). 344

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"-Ram Dia asked us to give up the possession of the land and hand  over the same to him.  We told him that he could  take back  the possession in the same way as the  possession  had been delivered to us by the Tehsildar, Girdawar and Patwari. At  this,  Ram Dia said that he would  take  the  possession forcibly.   We  told  him that we would not  hand  over  the possession by force.  On the day ,of occurrence, Ram Dia and his  brothers started ploughing the land and  uprooting  the crops  sown  by us, with the help of two ploughs.   At  sun- rise, Har Lal armed with a lathi, I armed with a two-pronged jaily and Ram Lal armed with a lathi were going on the  road from Deora to Ujana to go to our field......... Har Lal told us that it seemed to him that the land in dispute was  being ploughed  by the deceased.  Har Lal went and stood in  front of  the bullocks and told Ram Dia that he should  have  been satisfied after cultivating The land since the consolidation and  that  he  should desist from  ploughing  the  land  and destroying  the  crop.  At this Ram Dia gave  a  lathi  blow which hit Har Lai on the right hand.  At this, Har Lai,  Ram Lai   and   myself  gave  injuries   with   our   respective weapons...... We got Har Lai medically examined. . . . " Though  this  version of the accused was not  sufficient  to make  a  case  of private defence   yet,  coupled  with  the Kanungo’s report, EX.PJJ, and the surrounding circumstances, it  strongly points to the conclusion that the  tragedy  was probably  precipitated  by  the  deceased’s  insistence   on cultivation  and possession of the disputed land  includling those  fields  of  which actual  possession  had  been  duty delivered  by the consolidation authorities to the  accused. The  appellants  had  the order of  Additional  Director  of Consolidation  in  their favour in respect of  the  land  in dispute.   The  deceased  challenged that order  by  a  writ petition under Article 226 in the High Court which dismissed the ,same and upheld the order-of the Director.   Thereafter on  October  5, 1971. in implementation  of  the  Director’s order, symbolical pos-session of that part of the land which was under crops, and actual possession. of the fields  which were  vacant, was delivered, to the accused.  It seems  that the  deceased  udder  the cloak of an  ex-parte  interim  in unction  obtained by them on November 4, 1971,  were  deter- mined to retain or retake possession even of those fields of which  ’actual possession had been delivered to the  accused party by the consolidation authorities. This  takes  us  to the next circumstance  stressed  by  Mr. Behal. Chawla has been awarded the capital sentence for the  murder of  Ram  Dia.  The part ascribed to, the  appellant  by  the witnesses,  who admittedly had run away to some distance  at the commencement of the assault, was that he had inflicted a fatal blow with a lathi on the deceased.  Dr. Rai Gupta  who conducted  the  autopsy,  testified that  there  were  eight injuries  in all on the dead-body of Ram Dia, out of  which, six were punctured wounds.  Injury No. 6                             345 was  an abrasion on the left fore-arm.  Injury No. 8  was  a depression  of  the  frontal and parietal  bones.   All  the injuries, collectively, in the opinion of the Doctor,  were, sufficient to cause death in the ordinary course of  nature. It  is  iniury 8 which was attributed by  the  witnesses  to Chawla,  appellant. in the examination-in-chief, the  Doctor did  not  say  that this injury was by  itself,  fatal.   In cross-examination  in  the Committal Court,  she  said  that injuries   1,   2  and  4.  individually   as   well      as collectively,  could  cause death.  At the  trial,  Dr.  Raj Gupta changed this version and said that injuries. 1, 4  and

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8  we-re individually sufficient in the ordinary  course  of nature  to cause death.  She excluded injury No. 2 from  the category  of fatal injuries, and, in its Place,  substituted injury  No. 8. If the Doctor’s former statement made in  the Committal  Court was correct, then injury 8 was not a  fatal injury  and  the  three fatal injuries (1,  2  and  4)  were punctured wounds which could have been caused by Ram Lal and Puran  only,  who  were armed  with  sharp-pointed  weapons. Further,  in  the Committal Court, Dr.  Gupta  ’had  clearly testified  that none of the 8 injuries found on the body  of Ram Dia had been caused with a blunt weapon.  On this point. also, she took up a different position at the trial and said that  injury 8 might have been caused with a lathi.  In  any case, apart from a minor abrasion on the left fore-arm which could  have  been the result of a fall, there was  only  one injury  on  the body of Ram Dia, caused With  a  lathi.   It could  not be said that Chawla played the dominant  role  in the  assault.  His part, if not less, was in no way  greater than  that of Har Lal and Ram Lal who had caused  the  fatal punctured wounds. We have referred to the contradictory positions taken by the medical  officer,  not  to show that  Chawla  could  not  be convicted  under  s 302, Penal Code, but to  appreciate  his precise role in the, assault on Ram Dia, for the purpose  of sentence, only.  From Dr. Gupta’s evidence it is clear  that he had caused only one injury, with a lathi. to Ram Dia  and his part in the assault. if not less, was in no way  greater than that of Har Lal and Ram Lal who had caused no less than six injuries, including two fatal, to the deceased. Further  circumstance which deserves consideration  is  that these raw youths, Chawla and Mukhtiara. appear to have acted under the instigation of their elder, Har Lal. Still another factor to be taken into account in prescribing the punishment is that death penalty has been brooding  over the heads of these young men for an agonisingly long period. They  were committed for trial two Years in  February  1972, and  were  condemned to death by the trial  court  in  April 1972.   By  cold logic, this circumstance  is  a  mitigating factor, more often than not, being the unwarranted result of Law’s  delays, is vulnerable.  But humane considerations  of administering justice tempered with mercy have impelled  the courts to recognise it as an ameliorating circumstance.   In the  last  half a century, the science  of  criminology  has taken great strides.  There has been rethinking about  crime and punishment.  The process is con- 346 tinuing.  Winds of compassion for the criminal. blowing  the world  over, are affecting law and logic, the Judge and  the Legislator, alike.  Draconion notions and retributive relics of  lex,  elionis  are yielding to  "Mankind’s  concern  for Charity".   In  every  creature, "born but to  die",  it  is "blindness  to  the future, kindly given " that  keeps  life going.  But in a condemned man, the Book of Fate open before him  constantly  telling of the doom prescribed,  the  life- stream of hopes and aspirations rapidly starts drying  under the excruciating heat of the mental desert.  With passage of time, the prisoner painfully awaiting execution, becomes  no better than a "life-less" mummy.  It was in this perspective that  this  Court in State of Bihar v. Pashupati  Singh  and anr.  (supra), ruled that if there has been a long  interval between  the date of the ,offence and the  consideration  of appeal  by the Supreme Court. the capital sentence  for  the commission of an offence under S. 302, Penal Code for  which the accused has undergone a long period of mental agony, the sentence  of death may not be exacted.  A similar  note  was

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struck by a Bench of this Court, constituted by both of us’, in Ediga Anamma v. State of Andhra Pradesh(1). Parliament  also has taken note of the  current  penological thought.  Before Criminal Amendment Act 26 of 1955, for  the offence   of  murder,  death  sentence  was  the  rule   and transportation  for  life an exception. and  if  the  lesser penalty  was to be awarded, then subsection (5) of  S.  367, Code of Criminal Procedure required reasons to be given.  By Act  26  of  1955,  this  sub-s.  (5)  was  recast  and  the requirement of giving reasons for the lesser punishment, was done  away  with.   The  former  rule  is  thus  no   longer operative.   The Court has now a discretion to award  either of  the two penalties prescribed under S. 302,  Penal  Code. Death  sentence  is now exacted ,only where the  murder  was perpetrated with marked brutality. Parliament  has  passed the Criminal Procedure  Code,  1973, which  is coming into force shortly, In it, the position  is reverse of what it was before the Amendment of 1955.   After this  Bill becomes law, it will be obligatory for the  court to  give reasons if the death sentence is to  be  inflicted. The  Penal Code Bill, 1955, which is on the anvil,  reserves capital punishment for only a few types of murders. We  have  referred  to the modern  penological  thought  and current  legislative trends not with a view to  decide  this case  on the basis of what is yet in embryo, but to  have  a proper  perspective  for appreciating of  the  circumstances which  have  been urged in this case in  mitigation  of  the sentence.  To sum up, these are:               (a)  There was some probality of  the  tragedy               having  been provoked or precipitated  by  the               blame-worthy  and intransigent conduct of  the               deceased   in  regard  to  the  retaining   or               retaking possession of the land               (1) C. A. 67/73 decided on 11-2-74.               347               that had been finally allotted to the  accused               by the consolidation authorities.               (b)   Chawla  appellant  was  responsible  for               causing  only  one  out  of  the  three  fatal               injuries   received  by  Ram  Dia,   deceased.               Probably, that was the only blow given by  him               to  the  deceased,  while  the  remaining  six               punctured wounds were all caused by the  other               accused  who  have  been  awarded  the  lesser               sentence.               (c)   Chawla  and  Mukhtiara,  appellants  are               immature  youths who appear to have  acted  at               the instigation of their elder, Har Lal.               (d)   Prolonged  mental  torture  suffered  by               Chawla and Mukhtiara on account of their being               Constantly haunted by the spectre of death for               the last one year and 10 months. Perhaps,  none of the above circumstances, taken singly  and judged  rigidly  by the old Draconian  standards,  would  be sufficient to justify the imposition of the lesser  penalty; nor are these circumstances adequate enough to palliate  the offence  of  murder.  But in their totality, they  tilt  the judicial  scales  in favour of life rather then  putting  it out. The circumstances considered above have long been recognised by  courts  as valid grounds for  mitigating  the  sentence. They  are  not  innovations.   Formerly  what  was  in  the. penumbra  of  extenuation,  "dim-described",  now,  in   the twilight of compassion, has become clearly discernible. Before we part with this judgment, we may in fairness to the

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learned Counsel for the State, note it here that the rulings cited  by him turn on their own facts.  In Mizajis case  and Jagmohan  Singh’s  case (supra), the  accused  were  awarded capital sentences as they were found guilty of having  fired the  fatal  shots with fire-arms.  ’in Brij  Bhukhan’s  case (supra),  the victim had been dragged out of his  own  house and mercilessly beaten.  Such is not the case here. For the foregoing reasons, while maintaining the convictions of the appellants, we would allow the appeal and commute the death  sentences of the appellants to that  of  imprisonment for life on each count.  The Appeal allowed. sentences shall run concurrently. V.P.S. 348