TaxTMI 
TaxTMI 
2002 (11) TMI 789
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....rish Vallabhdas Bhatia hatched a criminal conspiracy to that 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 ....
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....iety 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 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 o....
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...., 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....
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....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 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. ....
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....cm. On the internal examination the doctor found the following internal injuries : (1) Corresponding with ext. injury No. One (1) 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 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, perf....
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....Exist 1/3 medial muscles to left thigh back upper 1/3. Muscles with injured and perforated left femoral artery and vein underneath. Haemorrhage along passage of bullet. (8) Corresponding with Ext. Injury No. fifteen Ext. Injury No. fifteen passes through 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 a....
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....tte specify to be Gazette, specify to be prohibited arms. prohibited ammunition. (b) Semi-automatic firearms, Ammunition for arms of other than those included category (b) in categories 1(c) and iii (a)smooth bore guns having barrel of less than 20" in length. (c) Blot action or semi- Ammunition 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 sec....
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....nd prohibited ammunitions. Further, while the Act provided for punishment of persons in possession of arms and ammunition with intent to use them for any unlawful purpose, it did not provide for any penalties for the actual use of illegal arms. To overcome these deficiencies, it was proposed to amend the Act by providing 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 ex....
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..... The State Govt. are already aware that the question of revision of the Indian Arms Act & Rule is under consideration of the Govt. of India and it is intended to incorporate the classifications mentioned above in the Indian Arms Rules when revised. In the meantime, I am to request that the other State Govt. may give effect to the above decision at once." (As per the 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 ....
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....f the Arms Act prescribes a death penalty in the event the arm or weapon concerned stands out to be a prohibited arm, user of which results in a death a rather stringent provision. A person, howsoever graver the offence may be, cannot be punished more than as is prescribed under Section 27(3) of the Arms Act. On a comparative analysis of Section 302, there is some amount of 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 pun....
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....ote. In that view of the matter, the first contention of Mr. Ranjit Kumar in support of the appeal succeeds that conviction under Section 27(3) cannot be sustained. Turning attention on to the offence under the general law of the land, the High Court thought it fit to confirm the death sentence as granted by the learned Sessions Judge. Be it noted that 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 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 manne....
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....same is set out hereinbelow : "The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view 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 hu....