CHAWLA AND ANOTHER versus STATE OF HARYANA

CHAWLA AND ANOTHER

STATE OF HARYANA

February 12, 1974

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.l

Criminal law-Practice and Procedure-Seritence of /;fe imprisonment for murder. when may be 1ranted. · Six. accUsed were charged with the murder of three persons. Two of the ac.:used-tbe appellants-were convicted of murder of two of -the deceased, n:spectively 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 autbprities. and over which land, there were disputes between the accused and the deceased. fb) The first appellant was rcs,:ionsible for causing only one out of the 3 fatal injuries received by the deceased for_ whose murder be was convicted. Probably, that was the only blOw given by him to tho 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 beinS: constantlI haunted by the spectre of death for one year and 10 , months ever since they were sentenced to death by the trail court. Moreover the Court has now 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 CJ Y;v;an Rodrick v. Tiie State of West Be11gal, A.I.R. 1971 S.C. 1584; Gurd;p Singh v, State of PunitJb, A.l.R. 1971 S.C. 2240, State of Maharashlra v. Mang/ye Dhavu Kongll, A.I.R. 1972 S.C. 1797, State of B/har v. Pa.rhupatl Singh and another, A.I.R. 1973 S.C. Ga/anand and ors. v. State of U.P. A.I.R. 1954 S.C. 695, and Ediga A.namma v. State of A.ndhra 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, Mil:Jlll and anr. <tc. 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. CRIMINAL APPELLATE JURISDICTION : Criniinal 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 n and Murder Reference No. 21 of 1972.

N. S. Das Bahl, for the appellants.

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 thret sons; Bishna, Ram Lal and Har Lal. Ram Dia, Dal Singh and Ran Singh deceased were the sons of Bishna. Ram Lai 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 plot, measuring 4' acres. This plot was allotted by the Consolidation Officer to Bishna· but in revision the Additional Director, Consolidation on May 4: 1968, set asid~ the Order ct the Consolidation Officer and allotted it to Ram Lal and Har Lal, accused. Bishna died and the deceased succeeded him. Aggriev-ed, the deceased persons moved the High Court under Art. 226 of the Constitution for bringiqg up and quashing the order of the Direc-tor. 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 Klla Nos. . 129 -7-. ffi'J' 129 141:9 . 16 1211 as those· fields were un er crop. delivered actual possession of the other fields, comprised in the allot-ment, which were not ~nder crops, including I<hasra No. W, to the accused, Ram Lal and Har Lal. The deceased persons, how-ever, did not submit to this symbolical and actual delivery of posses-sion. They instituted suit in the Civil Court at Kaithal and obtain-ed an ex parte interim injunction restraining the accused from taking possession of the land. This injunction was served on Ram Lal accus-ed on November 5, 1971.

On November 11, 1971, Ram Dia, Dal Singh and Ran Singh decea-sed, went to the fields with their ploughs. Dal Singh started reaping chari crop, Ran Singh started ploughing the field, while Ram Dia went on round of the field. At about 11 a.m., all the six accused, in body reaChed the field. Puran and Ram La1 were armed with Suas (iron-spiked sticks) , Dhanna with Gandasa, and Har Lal, Mukhtiara and Chawla with Jathis. 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 safe distance and stood ther~. After the assault, the accused ran away taking their wea-pons with them. Ram· Dia died at the spot. Dal Singh succumbed to

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. conviction under s.148, Penal Code with 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 imprison-ment for life, each.

On appeai, 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 a1so maintained.

Special Leave in this case was granted only with regard to the capital sentence inflicted on Chawla and Mukhtiara, appellants.

Mr. Behal, learned arnicus curiae has urged that the death senten· ces were not justified because of these alleviating circumstances :-

(a) The cause of the tragedy can be traced to the un-reasonable, stubborn, and blame-worthy conduct of the deceased in retaking or retaining possession of the land that after 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 de-ceased in ploughing Kila No. 612 etc., actual posses-sion of which had been duly delivered by the Consoli-dation Authorities, earlier to the accused party. Ram Dia armed with stick was on guard duty while the other deceased were 'ploughing or sowing in the dis· puted land. Ram Dia provoked the assault by deal-ing blows with stick to Har Lal accused.

(b) Jn the case of Chawla appellant, it was not clear whether any fat'al injury to Ram Dia was caused by him. Jn any case, it was unreasonable to mark him out for capital punishment for inflicting only one of the three fatal injuries with Iathi, when the co-accused to whom the punctured, fatal wounds were attributed, have been awarded the lesser penalty.

(c) That Chawla and Mukhtiara appellants are raw youths, aged 25 and 24 ye.ars •. respectiv7Iy, who pro-bably acted under the inst1gat10n of their father; and that the death sentence has been hovering over their heads for an agonisingly long period of about 1 year

and I 0 months.

The above circumstances, according to Mr. Behal, taken separate-ly as well as collectively, furnish sufficient ground for mitigation of the capital sentence. Reference has been made to the decisions of this Court in Vivialn Rodrick v. The State of West Bengal;(') Gurdip Singh v. State of Punjab;(') State of Maharashtra v. Naglya Dhavu Kongil;(I') State iii Bihar v. Pashupati Singh and another(') 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 cut bv Mr. Behal .is good extenuating factor. It is emphasisetl that ti;c accused \vent armed \Vith determination to kill the deceased p~rsons and they succeeded in their nefarious design. This \VJS cas~ or cold-11loooed triple murder and no leniency in the matter of sen-t,nce was 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 _ground in law for not inflicting the capital sentence on the appel-lants. He has further pointed out· that the mere fact that period of obout 1 year and 10 months has elapse'd since the award of the capital sentence, which is mainly due to the protracted proceedings, is no :;round for reducing the capital sentence.In support of his arguments. learned Counsel has relied on Brij Bhu.khan and ors. v. State of U1 P.;(') Mizaji and anr. etc. v. State of U. P.([7]l; Jagmohan Singh v. State of U.P.(').

Tn:e, according to the finding of the courts beiow, the occurrence !ook place ~ctuallv in Kila No. 611, anti not in Kila No. 6/2, which v:as in dispute. The very numbering of these fields by the Settlement ~uthorities shov.·s that thev are sub divisions or parts of the same J;:iJa "" 6 The disputed land was thus intermin.2led with the plot cf occurrence. The deceased were feeling aggrieved by the partition ond all.otmcnt of this land .including Kila 6. Indeed. despite the conclusion of the dJSpute by the consolidation authorities, the deceased ·,;·ere keeping it alive. The Kanungo's Report (Ex.PJJ). dated Octo-F l::cr 5. 1971. whereby Possession of the disputed land was delivered !(] the accused Part~. shows that Kila No. 612 in Rectangle No. 129 ·"as one. nf those tlisputed plots. the actual possession oi which had ~~ef ciel1vcred to the accused party. It was the prosecution case, ~~e~t 1~~~;j~0g~~ t~fo~e the assa~lt. Ram Singh was ploughing to sow the di~Putcd land an'~'ka~ab~uttmg hch~ri from the field adjacent to 'ibly to keeii watch ag~inst ;~ was avmg round. of ~he fields. pos-under s 14? Cr p he_ accus~d. Chawla tn his cxaminatinn-----·- --_..... . . eave t is version of the incident--(!) A. 1. R.-197Ts. c. t584· (21 A. T. R. 1971 S. C. 2240· ' (3) A. T. R. t972 S. C. 1797· (41 A. T. R. S. C. 2699 ' (51 A.J.R. 1954 S.C. 695. (61 A. T. R. 1957 S. C. 474 (7\ A. I. R. 1959 S. SP (8) Cr. 1. J. 370 (S. C.l. -

... , .. 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 Tehsil\lar, Girdawar and Patwari. At this, Ram Dia said that he would take the p0ssession ·forcibly. We told him that we would not hand over the passession by force. On the day <>f orcurrcnce. Ram Dia a_nld 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 lathi, I armed with two-pronged iailv and Ram Lal armed with lathi were i:oing on th.; road from Deora Lo Ujana to go to our field ..... -... Har Lal icild us that it seemed to him that the larrJ 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 lathi blow which hit Har Lal on the right hand. At this, Har Lal, Ram Lal and myself gave injuries with our respective weapons. . . . . . We got Har Lal medi-cally examined . ... "Though this version of the accused was not sufficient to make out :a case of private defence:_ yet, coupled with the Kanun~o·s report, Ex.PH. and the surrounding circumstances, it strongly points to the .conclusion that the tragedy was 'probably precipitated by the deceaseld's insistence on cultivation and possession of the disputed land indud-ling those fields of which actual possession had been dulv 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 writ petition under Article 226 in the High Court which dismissed the ·same and uoheld the order of the Director. Ther~after. on October 5. 1971. in imolementatiop· of the Director's order, symbolical pos-•ession of that part of the land which was under crops, and actual possession of the fields which were vacant. was· delivered, to the ac-cused. It seems that the deceased urlder the cloak of an cx-parte in-terim injunction obtained by them on November 4, 1971, were deter-n1ined to retain or retake possession even of those fields of which actual possession had been--de)ivered to the accused party by the ·consolidation authorities.

This takes us to the next circumstance stressed by Mr. Behal.

Chawla has been awarded the capftal 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 commence-ment . of the assault. was that he had inflicted fatal blow with 1athi on the deceased. Dr. Raj Gupta who conducted the autopsy, testified that there were eight iil.iuries in all on the dead-bodv of Ram Dia, out of which, six were punctured wounds. Injury No. 6

was an abrasion on the left fore-arm. Injury No. 8 was depression of the frontal and parietai bones. All the injuries, colleclI~ely, in the opinion of the Doctor, w_ere . sufficient t<>. cause death m the ordinary course of nature. It is miury 8 which wa~ attnbutcd _by the witnesses to Chawla, apl"'~ant. Jn the exanunatt0n-m-ch1et, the Doctor did not say that ·this injury was by itself, fatal. Jn. cross-examination in the Committal Court, she said that injuries I, 2 and 4. individually, as well llS collectively, could cause death. ~t the trial, Dr. Raj Gupta chang~ this version and said that injuries 1, 4 and 8 were individually _suflicie~t. in the ordinary course of nature to cau·se death. She excluded rniury. No. 2 from ·the category of fatal injuries, and, in its pl_ace, substituted injury No. 8. If the. Doctor's former statement made in the Committal Court was correct,. then injury 8 was not fatal injury and the three fatal injuries (J, 2 and 4) were punctured \\'OUnds which could have b<en caused by Ram Lal and Puran only, who were armed with sharp-pointed: weapons. Further, in the . Co'!"rriittal Court, Dr. Gupta had clearly testified tlrnt none of the 8 injuries found on the body of. Ram Dia had been caused with .blunt weapon. On this point, also, she took up different position at the trial and sar..l that injury 8 might have been caused with lathi. In any case, apart from • a. minor abrasion on the left fore-arm which could have been the result of fall, there was only one injucy on the body of Ram Dia, caused with lathi. It could not be said that Chawla played the dominant role in the assault. His p~rt, 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 .. und'r s 302. Penal Code, but to appreciate his precist role in the assault on Ram Dia. for the purpose of sentence, only. From Dr. Guotas evidence it is clear that he had caused only one injury, with lathi, to Ram Dia and his part in the assault. if not less, was in no wa, greater than that of Har Lal and Ram Lal who had caused no·. jess thnn f-ix injuries, includinl! two fatal, to the deceased.

Furthet circumstance which deserves· consideration is that these raw vouths. Chawla and Mukhtiara. appear to haw acted under the instigation of their elder. Har Lal.

~till ano~her factor to be taken into account in prescribing the pumshment ts that death penalty has been brooding over the heods of. these youngmen for an agonisingly long period. Tlt'y were com-mitted for trial two Years in February 1972 and were condemned to ~eath by th~ tria! court in April f972. By cold logic, this circums-tai,cc. as " rmt:gattng factor. more often than aot, being the un-warranted result of Law's delays, is vulnerable. But humane conside-rations of administering justice tempered with mercy have impelled the courts to recognise it as an ameliorating circumstance In the last half century, the science of criminology has taken greai strides. There has been rethinking about crime and punishment. The process is con-.

tinuino. Winds of compassion for the criminal blowing the world over, are attecting Jaw and logic, the Judge and the Legislator, alike. Draco-nicn notions and ·retributive relics of lex elionis are yielding to "Man-kind's concern for Charity". ln every creature, ''born but to die", it is "blindness to the future, kindly given" that keeps life going. But in u condemned man, the Book of Fate open before him consrantly telling of the doom prescribed, the life-stream of hopes and aspirations rapi~­B Jy starts drying under the excruciating heat of the mental. desert. W1tn passaoe of time, the prisoner painfully awaiting execution, become:; no bcttcr than "life-less" mummy. It was in this perspective that tilis Court in Slate of Bihar v. Pashupati Singh and anr. (supra), ruled 1hat if there has beep. long interval between the date of the offence and the consideration of appeal by the Supreme Court. the capital sentence few the c001mission of an offence under s. 30'.:, Penal Code for which the accused has undergone long period of mental agonv, the sentence of death may not be exacted. simila:· note was struck bv Bench of this Court, constimted by both oi us, in Ediga Anamma v. State of Andhra Pradesh(').

Parliament also has taken note of the current penological thought. Before Criminal Amendment Act 26 of 1955, for the offence of murder, death sentence w.'IS the rule and transportation for life an exception. anld if the lesser penalty was to be awarded, then sub-section (5) of s. 367, Code of Criminal Procedure required reasons I<> be given. By Act 26 of 1955, this sub-s. ( 5) was recast and the requirement of giving reasons for the lesser punishn1ent, \\'US done away with. The former rule is thus no longer oporative. The Court .has now discretion to award either of the two penalties prescribed under s. 302, Penal Code. Death sentence is now exacted onlv 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 !aw. it will be obligatory for the court to give reasons if the death sen-· tence is to be inflicted. The Penal Code Bill, 1955, which is on th' anvil, reserves capital punishment for only few types of murders.

We have referred to the modern penologicaJ thought and current legislative trends not with view to decide this case on the basis of what is yet. in embryo, but to have proper perspective for appreciating of the CIIcumstances which have been urged in this case in mitigation of the sentence. To sum up, these are :

(a) There was some probability of the tragedy having been. provo~ed or precipitated by the blame-worthy and 1ntrans1gent conduct of the deceased in regard to the retaining or retaking possession of the land

WC A. 67(73;.Jeeided on ll-2-74.

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 haun-ted 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 ade-quate 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 clear-E ly discernible.

Before we part with this judgment, we may in fairness to the learn-ed Counsel for the State, note it here that the rulings cited by him turn on their own facts. In Mizaji's 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 senten-ces of the appellants to that of imprisonment for life on each count. The sentences shall run concurrently.

Appeal c;l/owed.