SUBHASH RAMKUMAR BIND @ VAKIL AND ANR. v. STATE OF MAHARASHTRA

Citation: [2002] SUPP. 4 S.C.R. 65

Court: Supreme Court of India

Bench: U.C. BANERJEE, B.N. AGRAWAL

Judgment text

SUBHASH RAMKUMAR BIND@ VAKIL AND ANR. v. STATE OF MAHARASHTRA NOVEMBER 12. 2002 [UM ESH C. BANERJEE AND B. N. AGRA WAL, JJ. ] Arms Act, 1959-Section 27(3)-Arms Rules, 1962-Rule 3-Conviction under by Courts belou'--Death sentence-Murder caused by 9nun pistol and 38 caliber revolver-On appeal-~Held, conviction cannot be sustained-Arn1s in question 1vere not the prohibited arn1s under the Act. Penal Code, 1860-Section 302134-Conviction under by courts below -Death sentence-On appeal-Held, conviction justified but in the facts of the case punishn1ent a1varded is in excess ofthe requiren1ent ofthe situation- Brutality in the instant case is not ofsuch a nature so as to exercise discretion by passing an order of capital punishn1ent-Brutality itself l11ould not bring the case tt•ithin the a1nbit of rarest of rare cases-Sentence of death altered to life in1prisonn1ent..

Code of Criminal Procedure, 1973-Section 354 (3)-Special reason for award of death sentence-Held, brutality can be an existing factor but cannot be tern1ed to be special reason }Or awarding such sentence-Holt' the brutality takes place, is the relevant and necessary n1aterial to be considered. Sentencing-Death sentence-bnposition of-Held, latt• courts should be slolv in imposing-A reasonable proportion has to be nraintained bet1veen the heinousness ofcrime and the punishment-Punishment should neither be disproportionately severe nor inadequate. Interpretation ofstatutes-Statements ofobjects and Reasons ofstatute- Aid offor interpretation--Admissibilil)~Held, it is not admissible as an aid to the construction ofa statute, bl! t the sa111e si111ply assists as to the necessity of introduction of such law--// can be looked into for a limited purpose of ascertaining the conditions prevailing at the time-Statement ofObjects and Reasons of Arms (Amendment) Act 42 of 1988.

Trial Court convicted the accused u/s 302/34 IPC and Section 27(3) of Arms Act, 1959 and sentenced them to death for having committed murder ()fa person with 9 mm. Pistol and . 38 caliber revolver. High Court confirmed the order of trial Court and held that in view of Arms Act, 1959, Arms Rules, 1962 and Rules and the Schedule I thereof, the arms seized from the accused are prohibited arms and hence Section 27(3) is squarely . attracted. For confirmation of death sentence it recorded the special reason being that gunshot injuries were caused and at that point of time the deceased was unarmed and was taken aback as to the. whole. situation.

In appeal to this Court appellant contended that the arms in question cannot come within the purview of 'Prohibited Arms' as defined u/s 2(t)(i) of the Act, because they are not automatically triggered and because there was no notification as required by law vide category A schedule I of the statute; and that the note issued by Central Government pertaining to 9 mtn pistol and . •38 caliber revolver stands out to be prohibited for the purpose of importation only and thus would not attract the general definition as regards the prohibited weapons and ·hence the note to be treated as an instruction and not a notification. St. ate contended that the note issued by the Central Government ought to be treated as an authorization within the meaning of the first schedule to the statute. Dismissing ~he appeal, the Court HELD: I. I.

Section 27(3) of Arms Act, 1959 provides for a definite punishment for a definite offence : to wit, user of 11ny prohibited arms, which results in the death of another person and in that event the Statute has been categorical enough to prescribe that user. shall be punishable with death. There are thus two specific requirements of the Statute in order to bring home the guilt of the accused within the meaning of Section 27(3): the requirements being- (a) user of a prohibited arm; and (b) resultant death of a person by reason of such user. (77-H; 78-A-BI 1. 2. Statement of Objects and Reasons is not otherwise admissible as an aid to the construction of a Statute but the same simply assists as to the necessity of introduction of such a law. Though, in case of an urgent need of the situa~ion by reason wherefor the intent of the. legislature is to . be assessed, the Statements arid Objects can be looked into for the limited purpose of ascertaining the .

conditions prevailing at the time which prompted or actuated the proposer of the Bill to introduce the same and the extent of remedying the existing evil of the society. (80-B-C) ' SUBHASH RAMKUMAR BIND 1J) VAKIL 1·. STATE OF MAHARASHTRA . 67 Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. , 119531 SCR 1, relied on 1. 3. The punishment provided under Section 27(3) of the Arms Act stands to be the severe most one and under the general law of the land it is only in the rarest of the rare cases that such a punishment can be inflicted on to an accused. Obviously, the intent of the legislature as appears from the Statement of Objects and Reasons of Arms (Amendment) Act, 42 of 1988 cannot possibly be decried by reasons of the situation prevalent during the period in question.

The use of prohibited arms and deadly weapons turned out to be a regular feature and the existing state of law was not in a position to subvert these moves by the anti - national elements and in the event of incorporation in the Statute Book of legislation which stands engrafted therein to protect the society from these unruly elements it is a bounden obligation of the law Courts to attribute its widest possible amplitude to the words used in the legislature and interpret the legislation in accordance therewith. Question of there being a restrictive meaning to be attributed thus would not arise. 181-B-DI 1. 4. Notifications in common English acceptation mean and imply a formal announcement of a legally relevant fact and in the event of a Statute speaking of a Notification being published in the Official Gazette, the same cannot but mean a Notification published by the authority of law in the Official Gazette.

It is on formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the Statute then in that event in accordance therewith. (83-A-B( 1. 5. The Statute speaks of a notification in the Official Gaaette. Administrative instructions cannot possibly be a substitute for notification which stands as a requirement of the Statute. The requirement of the Statute is sacrosanct and since the issue shall have to be dealt with utmost care and caution, without the issuance of a notification question of a conviction under Section 27(3) of the Arms Act would not arise. (84-D-F( Union of India and Anr. v. Charanjit S. Gill and Ors. , (2000) 5 SCC 742, relied on. 2. 1. Section 354(3) of the Criminal Procedure Code, 1973 specifically records that in the event of a sentence of death the Court must state special 68 SUPREME cou. n REPORTS [2002] SUPP. 4 S. C. R. reasons for sut:h a sentence.

The finding of the High Court on this score does not satisfy the statutory requirement since the same cannot be termed to be a special reason for imposition of such a penalty. Gunshot injuries were caused and at that point of time the deceased was unarmed and was taken aback as to the whole situation-in every incidence of murder, brutality is involved. Brutality, obviously would be an existing factor but how the same did take place is the relevant and necessary material to be considered. (85-B-D·El Jai Kumar v. State ofMP. , (1999) 5 SCC I, distinguished. Dhananjoy Chatter)t! e alias Dhana v. State ofW. B. , (1994) 2 SCC 220, referred to. 2. 2. Ours being a civilized society-a tooth for a tooth and an eye for an eye ought not to be the criterion and as such the question of there being acting under any haste in regard to the capital punishment would not arise: .

Rather our jurisprudence speaks of the factum of the law courts being slow in that direction and it Is In that perspective a reasonable proportion has to be maintained between the heinousness of the crime and the punishment. While It is true that punishment disproportionately severe ought not to be passed but that does not even clothe the law courts, however, with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of offence since an inadequate sentence would not subserve the cause of justice to the society. In the contextual facts, brutality is not of such a nature so as to exercise the discretion of passing an order of capital punishment-undoubtedly brutality is involved but that brutality by Itself will not bring it within the ambit of the rarest of the rare cases.

On the wake of the aforesaid and having regard to the nature of the offence and the methodology adopted, 'the punishment awarded to the appellants herein is in excess of the requirement of the situation and as such while the guilt of the accused under Section 302 read with Section 34 IPC is confirmed, the sentence of death is modified to that of life imprisonment. (187-B-EI CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1818 of 2002. · From the Judgment and Order dated 26. 7. 2001 of the Mumbai High Court in C. C. No. 4 of 2000 with Crl. A. No. 523 of 2000. Ranjit Kumar, Sushi! Karanjkar, R. Chandra Shekhar Reddy and Venkateswara Rao Anumolu, for the Appellants. S. V. Deshpande, Mrs. Usha Kejariwal and Naresh Kumar for the Respondent. The Judgment of the Court was delivered by BANERJEE, J.

On a reference to the High Court by the Principal Judge of the Sessions Court at Bombay for confirmation of an order of death sentence passed against the appellants herein in Sessions Case No. 477 of 1996, the High Court recorded its finding in the affirmative to the order of conviction aod sentence passed by the learned Sessions Judge. It is this order of confirmation which is before this Court presently under consideration. Significantly, accused Nos. 4 to 10 af\1 absconding and the matter was dealt with thus against accused Nos. I, i and 3. Since the matter has been argued before this Court in rather great a length, we think it fit and proper to note the charges so framed in extenso at this juncture and before entering on to the arena of merits. The charges read as below : "Firstly That you No. I along with Nos. 2 and 3 above named and absconding accused Nos.

4 to I0 Above named on the aforesaid date, time and place and prior to it agreed to murder Harish Vallabhdas Bhatia hatched a criminal conspiracy to that effect and in pursuant to the agreement you No. 2 and 3 above named, did commit murder of said Harish Vallabhdas llhatla by means of pistol and revolver and inflicted such bullet injuries on his person as were sufficient in ordinary course of nature to cause his death and in fact caused his death and thereby you all committed an offence punishable u/s 120-B r/w 302 of l. P. C. and within my cognizance. Secondly - Alternatively you Nos. 2 and 3 above named on or about 13th June, 1995 at 20. 20 hrs.

, on the ground floor of Lalchand Bungalow at Shanker Lane, Kandivali (W), Mumbai in furtherance of common intention of you both did commit murder by causing death of Harish Vallabhdas Bhatia, by means of pistol and revolver causing bullet lajury on the person of said Harish Vallabhdas Bhatia, which were sufficient In the ordinary course of nature to cause his death and in fact caused his death and thereby committed an offence punishable u/s 302 riw 34 of l. P. C. and within my cognizance. Thirdly - That you Nos. 2 and 3 above named, on the aforesaid date, time and place, did possess, carried and used the fire arms to wit committing the murder of deceased Harish Vallabhdas Bhatia by the said fire arms and thereby committed an offence punishable u/s 27(3) of the Arms Act and within my cognizance. " The charge thus itself records two counts, namely, on the first count under Section 302 read with Section 34 of IPC and on the second count under Section 27(3) of the Arms Act, 1959.

It is at this juncture, however, it would be convenient to advert to the true purport of the punishment of death and the social ramifications therefor. On this score we, however, deem it expedient to note an earlier decision of this Court in the case ofJai Kumar v. State of MP. , [1999] 5 SCC 1 (in which one of us was a party : U. C. Banerjee, J).

In Jai Kumar (supra) this Court while considering the above stated as below : "Section 302 of the Indian Penal Code authorises the Court to punish the offender of murder with death or imprisonment for life-the statute therefore has provided a discretion to the court to sentence the offender either with death or with imprisonment for life: obviously, a serious decision and a heavy burden imposed on the Court -This discretion conferred, however, shall haw to be thus exercised in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in no uncertain terms laid down that the award of death sentence though within the ambit of jurisdiction of the courts, but that does not clothe the courts to exercise the same in a manner indiscriminate.

This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilised society-a tooth for a tooth and eye for an eye ought not to be the criterion; the civilisation and the due process of law coupled with social order ought not to permit us to be hasty in regard to the award of capital punishment and as a matter of fact the Courts ought to be rather slow in that direction. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub-serve .. the basic requirement of the society. It is a requirement of the society SUBHASH RAMKUMAR BIND@ VAKIL v. STATE OF MAHARASHTRA [BANERJEE. J. J 71 and the law must respond to its need.

The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. One school of thought on this score propagates that the function ofthe law court is that ofa social reformer and as such in its endeavour to act as such, question of deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeping into the society, the society would perish to the detriment of its people.

The other school, however, expressly recorded and rather emphatically that unless the severest of the severe punishments are inflicted on an offender (obviously depending upon the nature of the crime) the society would perish. The other school professes that since one has taken the life of another that does not mean that his life shall have to be taken but during the trial if it transpires the method and manner or the nature of the activities which have resulted In the elimination of a human being from this world, there should not be any laxity on the part of the law courts, otherwise people will and in turn the society will be engulfed in a false sense of security of life in the event of there being the most heinous crime of the earth. The law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment.

While it is true that a sentence disproportionately severe, ought not to be passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, rather having its due impact on the society: while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. " Turning attention on to the second count, to wit. the charge under Section 27(3) of the Arms Act, i959 first. and for the purposes of proper appreciation of the submissions on this count as well, we deem it fit to note the provisions as provided in the Statute and the same reads as below : "27. Punishment for using arms, etc.

(I) (2) (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death. " Before, however, detailing out the applicability of Section 27(3) of the Act, we do feel it expedient to advert to the factual backdrop of the matter presently before us. On the contextual facts it appears that on I3th June, 1995 at about eight o'clock in the evening, the deceased, his mother, father, maid Pramila and Anjana were watching Television in the hall. Shortly, thereafter, however, somebody pressed the doorbell of the house and Pramila, the maid, went to see as to who was at the door. As the maid was coming back, Anjana also went to gallery to see who was at the door whereupon she saw that one person was standing on the step near the grill and the other person was standing below the step. She asked the person standing on the step as to who he was.

He gave his name as Arvind. She asked him as to what work he had. He told her that he was a friend of Harishbhai and that he had some work with Harishbhai. At that time Harish on being told by Pramila came to the passage. He went to the grill of the gallery and he asked the person standing on the step as to who he was. That person was talking in a very low voice. In order to ascertain as to what he was talking Harish leaned on the grill and that person immediately put his hand inside the grill and caught hold of the kurta of Harish just to give a violent jerk. He then put his second hand inside· the grill. At that time Anjana saw that he was holding a pistol in his right hand and pointed it at the abdomen of Harish and started firing. At that time the second person climbed on the grill. He also had a pistol in his hand. He started firing on the head of Harish and Harish collapsed thereafter.

This collapse of Harish dumb-founded Anjana by reason wherefor it took about a minute or so before Anjana started shouting and ran inside. She went to the western balcony to see them where she heard the sound of high acceleration of a vehicle in which accused Nos. 2 and 3 fled from the place of occurrence. SUBHASH RAMKUMAR HINOr~f VAKIL 1'. STATE OF MAHARASHTRA [BANERJEE, J. ) 73 Harish was then shifted to Bhagwati Hospital, where however he was pronounced dead. Complaint of AnJana came to be recorded immediately thereafter i. e. on the same day at about I0 p. m. The records depict that from the scene of offence empty cartridges and bullets were recovered. Panchanama was drawn up and the empty cartridges, bullets and two pieces of bullets recovered from the stretcher on which the deceased was kept were sent to the Chemical Analyser by the Police. The further factual score depicts that on 3. 7. 1995 accused Nos. 2 and 3 were arrested in LAC No.

49 of 1995 at Goregaon and various arms and ammunitions were recovered from them under a panchanama. Amongst them were one 9 mm pistol and one . 38 bore imported revolver. On 14. 8. 1995 the custody of the accused was obtained in DCB CR No. 177 of 1995 and on 15. 8. 1995 judicial custody of the accused was obtained and it is on 16. 8. 1995 identification parade of accused Nos. 2 and 3 was held in which P. W. l Anjana and P. W. 3 Pramila identified the accused. As regards the injuries suffered by the deceased, PW. 8 Dr. Shinde . conducted the post-mortem examination and had the following to state : "On my external examination I found the following injuries on the person were noted by me in Column No. 17 of my P. M. Report. (I) Fire arm wound of Entry on left eye brow medical and (if side forehead front) 0-8 cm. Diameter with 0-5 c. m. semicircular abraded collar on upper and outer aspect, inverted margins. No Tattooing or singeing of hair, dried blood/clots within circular shape.

(2) Fire arm wound of Entry on right side chest front, at the level of right nipple, 9-5 cm. from right nipple, 3-2 cm. from midline, 0-8 cm. Diameter with 0-1 cm. Abraded collar encircling, inverted margins. No tattooing/singeing of hair, dried blood/clots within, circular shape. (3) Fire arm wound of entry on left side chest front 3-5 cm from midline, 10-0 c. m. below and medical to left nipple, 0-8 cm. Diameter with 0-1 cm. Abraded collar encircling inverted margins. No tattooing, singeing of hair, dried blood/clots within circular shape. (4) Fire arm wound of entry on right side abdomen, epigastric area, 1-5 cm. From midline 2-0 cm. Below and lateral to right costal border. 9-8 cm. Diameter with one cm. Semicircular abraded collar on upper aspect, inverted margins. No tattooing, singeing of hair, dried blood/ elects within,· circular shape. (5) Fire arm wound of entry on the right side chest front, two cm. Lateral to anterior armpit line, 20-0 c. m. below right exilla/152 c. m.

Below and lateral to right nipple. 0-8 cm. Diameter with 1-4 cm. Semicircular abraded singeing ofhair, dried blood/clots within circular shape. (6) Fire arm wound of entry on the left side abdomen front. , pelvic/ fossa, 15-1 cm. From midline, 16-0 cm. Below and lateral to umbillicus 0-8 cm. Diameter with 0-2 cm. Semicircular abraded collar on medical aspect (medically) inverted margins. No tattooing/singeing of hair, dried blood/ clots within circular shape. (7) fire arm wound of entry on the left side abdomen front, iliac fossa, 17-2 (17-2 cm) from midline, 0-8 cm. Diameter with 0-5 cm. . Semicircular or singeing of hair; dried blood/clots within circular shape. ... (8) Fire arm wound of exit on the left side chest back, 31-0 cm. Below neck throat junction 3. 5 cm. From midline, I. I cm. x 1. 10 cm. Everted margins, blood oozes out, oval shape. (9) Fire arm wound of exit on the left side trunk back 4I-O cm. Below left shoulder belt, I4. 0 cm. From midline, 2. 0 cm. x 1. 4 cm.

Everted margins oval shape. (10) Fire arm wound of exit on the left side trunk back, 6-1 cm. Below and medial to ext. injury No. (9) (Nine) I3. 5 cm. From midline, 2-0 cm. x I. 6 cm. Everted margins, oval shape. (I I) Grazed abrasion on the left side trunk back extending from lower border of ext. injury No. IO (Ten) to ext. injury No. 9 (Nine) to left side chest back, length 22. 0 cm. Breadth one c. m. Red colour tapering towards chest of breadth 0. 5 cm. (12) Fire arm wound of entry on the left thigh lower l/3 medially, 8. 0 cm. Above. left knee joint, 0-8 cm. Diameter with 0-5 cm. Semi ·circular abraded collar on lower and front aspect, inverted margins. No tattooing or singeing of hair, dried blood/clots within circular shape. SUBHASH RAMKUMAR BIND@VAKIL v. STATE OF MAHARASHTRA [BANERJEE. J. j 75 (13) Fire arm wound of exit on the left thigh upper 1/3 back, midline, 2. 0 cm. x 1. 4 cm. Everted margins, oval shaped. blood oozes out.

Also 1nultiple puncture \vounds \Vithin everted irregular 1nargins, extending from left buttock lower part to left thigh middle 1/3 back of size varying fro1n 0. 8 c1n. x 0. 5 cn1. To x 0. 3 c1n. x 0. 2 c1n. \Vith a copper piece retrieved from left buttock lower medial part and four small lead pieces retrieved from left thigh skin underneath. (14) Multiple puncture wounds with inverted irregular margins. over right thigh upper 1/3 to middle 1/3 on back, of size varying from 0. 4 cm. x 0. 3 cm. to 0. 2 cm. x 0. 1 cm. with three small lead pieces retrieved from right thigh skin underneath. (15) Fire arm wound ofentry on the right lower arm (Forearm) middle 1/3 back (level of little finger) 0. 8 cm. Diameter with 0. 5 cm. , Semicircular abraded collar on lower aspect (towards hand), inverted margins. No tattooing or singeing of hair, dried blood/clots within circular shape. (16) Fire arm wound of exit on the right lower arm (forearm) front 8. 0 cm. (Eight cm.

) below right cabital fossa, 1. 3 cm. x 1. 1 cm. Oval shape everted margins, blood oozes out. (17) Abrassion red colour on the left lower leg below knee, middle 1. 3, front 1. 4 cm. x 1. 3 cm. On the internal examination the doctor found the following internal injuries : (I) Corresponding with ext. injury No. One (I) Perforated skin and muscles underneath, passes through· left nose to right side nose with perforated nasal septum, perforated and passes through tight maxillarly sinus to palate right side perforated. Passes and perforated right side tongue fossa and pharyngeal fossa muscles to right side neck muscles laterally with injured and perforated right carotid sheath of cervical fourth and fifty vertebra intervertebral disc. with its contains i. e.

right common carotid artery, right internal jugular veins, nerve accompanying with haemorrhage into adjacent muscles ofneck, passes to right side chest back muscles with perforated 1st inter-costal space on right side chest back near vertebra, perforated right Jung upper lobe. Haemorrhage along passage of bullet. A copper jacketed . lead long (slender) bullet retrieved from right side chest cavity in blood/ clots. (2) Corresponding with ext. injury No. 2 (2) :-Perforated skin and nn1scle wnderneath with haematoma underneath. Perforated 4th rib (fourth rib) cost n~e of death to that of life imprisonment under Section ~Q~ rn? ll wi! h !! @@\ion H gf the lnlli~n Penal Code as against the appellants h@rllin, Qnl! ii i§ m@@r@ll ftQQm@in11ly: Except however, as above, this appeal fuiis aml i~ t! i§mi§§@\I, K. K,,T. Appeals dismissed