TMI Blog2002 (11) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... at effect above named, did commit murder of said Harish Vallabhdas Bhatia 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 I.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 Shankar 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 injury 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 r/w 34 of I.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 pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 of the law court is that of a 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, 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 of hair, 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, 1.1 cm. x 1.10 cm. Everte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o right side nose with perforated nasal septum, perforated and passes through tight maxillarly sinus to patate 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 of neck, passes to right side chest back muscles with perforated 1st inter-costal space on right side chest back near vertebra, perforated right lung 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 muscle underneath with haematoma underneath. Perforated 4th rib (fourth rib) costal cartilage, perforated pericardium, perforated right ventricle through and through, perforated pericardium perforated right pleura, perforated right limb, lower lobe through and through, perforated right pleura, perforated 11th rib with fracture 11th rib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h underneath. Entry: muscles only Haemorrhage Ext. Injury No. Sixteen along passage of bullet exist. It is in this context Ballistic Expert's Report seems to go a long way as regards the pistol and revolver recovered from the accused persons' possession (marked with article Nos.19 and 20 respectively). The Report indicated that the bullets and pieces of bullets retrieved from the body of the deceased on 14.6.1995 were fired from 9 mm pistol and .38 caliber revolver. Bullets and empties seized under panchanama Exhibit 63 from the scene of offence tallied with bullets and pieces of bullets retrieved from the body of the deceased and they were fired from 9 mm and .38 revolver. Bullets retrieved from the body of the deceased and those bullets and empties recovered from the scene of offence were fired from articles 19 and 20. At this juncture, however, it be noticed that the submissions in support of the appeal can thus be summarised under two specific counts, namely, (i) submissions pertaining to the Arms Act, 1959; and (ii) under the provisions of Indian Penal Code. Admittedly, the provisions, both under the Arms Act as also under the Indian Penal Code prescribe deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition for fire-arms automatic fires of 303 or of category 1(c) 7.62 mm. Bore or any other bore which can chamber and fire service ammunition of 303 or 7.62 m.m. calibre; muskets of .410 musket ammunition pistols, revolvers or carbines of any bore which can chamber 380 or .455 rimmed cartridges or service 9 m.m. or .445 rimless cartridges. (d) III Firearms other those in Ammunition for fire-arms categories I,II and IV, other than those in namely: categories I,II and IV, namely: (a) Revolvers and pistols Ammunition for fire-arms of category III (a). It is on this score that Mr. Ranjit Kumar has been rather emphatic that since weapons of offences have been alleged to be a 9 mm pistol and a .38 revolver and since they are not automatically triggered but use of both these arms would depict that only one shot can be fired by the pull of trigger and for firing the second shot, the trigger has to be released first and pulled again, the arms in question cannot come within the purview of 'Prohibited Arms' as defined under Section 2(1)(i) of the Act of 1959. It is on this score the Statement of Objects and Reasons of the Legislation has been referred to by Mr. Ranjit Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for deterrent punishment for offences relating to prohibited arms and ammunition and for the illegal use of firearms and ammunition so as to effectively meet the challenges from the terrorist and anti-national elements. Accordingly, the Arms (Amendment) Ordinance, 1988, was promulgated by the President on the 27th May, 1988. The punishment provided 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 cannot possibly be decried by reason of the situation prevalent during the period in question. In more than one State of the country it was rather a dismal picture. 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 a 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 poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book filed). The High Court on this score stated : On a fair interpretation of the relevant provisions of the Arms Act; the rules made thereunder; the relevant schedule and in the light of the above letter, we are of the opinion that Articles 19 and 20, seized from the accused are prohibited arms within the meaning of Arms Act, 1959 and hence Section 27(3) thereof is squarely attracted to the facts of the present case. The submission of the State, however, has been that the note issued by the Central Government as noticed above, ought to be treated as an authorisation within the meaning of the first schedule to the Statute. Mr. Ranjit Kumar vis-a-vis the note had a two pronged attack on the score : On the first count, it has been contended that the note pertaining to the 9 mm pistol and .38 bore imported revolver stands out to be prohibited for the purposes of importation only, as such the general definition as regards the prohibited weapons would not in any way thus stand attracted and hence the note to be treated as an instruction and not a notification, thus does not authorise a punishment under Section 27(3) of the Arms Act. We find, however, that there is som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f laxity involved as regards the resultant death of a person by reason of a deliberate act of the accused it is on this score the legislature prescribes two objects, namely, imprisonment of life or death thus leaving it to the wisdom of the Court to pass the sentence in accordance with the gravity of the nature of offence and the methodology used to bring an end to the life of the assassin. It is in this perspective that the law is settled enough to record that it is only in the rarest of the rare cases that the maximum penalty, namely, the death sentence ought to be levied since that would be a barbarous act as that would run counter to the civilised notion and concept of the justice delivery system. True, a man's life comes to an end but would the justice delivery system require that he should equally be punished in the same fashion and manner. This issue has been answered in the negative with a rider that in the event, however, the methodology adopted by the accused cannot but be termed to be rarest of the rare, this court would be at liberty to punish the offender with a death penalty. The jurisprudential system has developed in the country on this backdrop and it is in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Criminal Procedure Code, 1973 specifically records that in the event of a sentence of death the Court must state special reasons for such a sentence. Let us, however, at this juncture see for ourselves as to whether in fact the High Court confirming the death sentence have recorded any special reasons therefor. In paragraph 83 of the judgment, the High Court recorded as below : Deceased Harish Bhatia was only trying to recover legitimate dues of the brother-in-law P.W.6 Rajesh by persuasion and requests. He was a respectable person not involved in any crimes. When the incident occurred he was totally defenceless. He was shot at in a most brutal manner. Depravity of the accused is evident from the way in which they fired at the deceased by going to his door steps when he was unarmed. We have no manner of doubt that this is one of the rarest of rare cases which warrant imposition of death penalty. This, however, in our view, does not satisfy the statutory requirement as noticed hereinbefore 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years. If the security guards behave in this manner who will guard the guards? The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years, by the security guard certainly makes this case a rarest of the rare cases which calls for no punishment other than the capital pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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