Criminal Appeal Nos 343 and 446 of 1988
503 From the Judgment and Order dated 841988 of the Patna High Court in Crl
A No 140 of 1987 and Death Ref
No 3 of 1987 and Crl
A No 136 of 1987
RK Garg Salman Khurshid Rakesh Luthra Irshad Ahmad Vinayak D Phadke Mrs Bimla Sinha and Gopal Singh for the Appellants
A Sharan D Goburdhan DN Goburdhan and B B Singh for the Respondent
The Judgment of the Court was delivered by AHMADI J
The appellants in these two appeals by spe cial leave are the six accused persons who were arraigned before the learned Third Additional Sessions Judge Siwan for trial
Criminal Appeal No 343 of 1988 is by original accused Nos 1 2 3 and 5 Allauddin Mian Keyamuddin Mian Saheb Hussain and Afzal Mian and Criminal Appeal No 466 of 1988_is by original accused Nos 4 and 6 Sarif Mian and Mainuddin Mian
For the sake of convenience we will refer to them by their original positions in the Trial Court
AccuSed Nos 1 and 2 were charged with the commission of offences punishable under Sections 302 452 and 148 IPC The prosecution case was that accused Nos 1 and 2 along with accused Nos 3 to 6 constituted an unlawful assembly the common object of which was to kill PW 6 Baharan Mian and in pursuance of the said object accused No 1 caused the death of Sahana Khatoon aged about seven years and accused No 2 caused the death of Chand Tara aged about seven months
Accused Nos 1 and 2 were substantively charged under Section 302 IPC whereas accused Nos
3 to 6 were sought to be held vicariously liable under Section 302149 IPC Accused Nos 3 and 4 were further charged under Sections 447 and 148 IPC and accused Nos 5 and 6 were charged under Sections 447 and 147 IPC The Trial Court convicted accused Nos 1 and 2 on all the three counts and awarded the sentence of death to both of them for the com mission of the offence punishable under Section 302 IPC Each of them was also sentenced to suffer rigorous imprison ment for one year on each count under Sections 148 and 452 IPC The substantive sentences were directed to run con currently
Accused Nos 3 and 4 were convicted under Sec tions 302149 447 and 148 IPC and for the offence under Section 302149 each of them was directed to suffer impris onment for life
For the offences under Sections 148 and 447PC they 504 were directed to suffer rigorous imprisonments for one year and three months respectively
The substantive sentences were ordered to run concurrently
Accused Nos 5 and 6 were convicted under Sections 302149 447 and 147 IPC
For the offence under Section 302149 IPC they were sen tenced to undergo imprisonment for life whereas for the offences punishable under Sections 447 and 147 IPC they were directed to suffer rigorous imprisonments for three months and six months respectively
The substantive sen tences were ordered to run concurrently
Since accused Nos 1 and 2 were awarded the death penalty a reference was made to the High Court which came to be numbered as Reference No 3 of 1987
Accused Nos 1 2 3 and 5 preferred an appeal Criminal Appeal No 140 of 1987 challenging their convic tions and sentences awarded to them by the Trial Court
Accused Nos 4 and 6 preferred a separate appeal Criminal Appeal No 136 of 1987 against their convictions and sen tences by the Trial Court
The said reference and both the appeals were disposed of by the High
Court by a common judgment
The High Court dismissed the appeal insofar as accused Nos 1 and 2 are concerned and while accepting the reference confirmed the sentence of death awarded to them for the murder of two the infant girls
The conviction of the remaining four accused under Section 302149 was howev er altered to Section 326149 and the sentence of imprison ment for life given to each of them was substituted by a sentence of rigorous imprisonment for seven years
Their convictions and sentences on the other counts were however maintained
Feeling aggrieved by the convictions and sen tences awarded to them on different counts all the six accused persons have preferred the present two appeals by special leave
Briefly stated the prosecution case is that on the afternoon of 25th July 1985 around 430 pm when PW 6 Baharan Mian was sitting at the entrance of his house the aforesaid six accused persons came from the west armed with deadly weapons accused Nos 1 and 2 were carrying farsas  accused Nos 3 and 4 were armed with spears bhalas and accused Nos 5 and 6 were armed with sticks Lathis
On seeing them PW 6 got up and went to the osra  verandah of his house
Accused No 3 began to untie the buffalo tethered in front of the house while the other accused persons show ered abuses on PW 6 to which the latter objected
There upon accused Nos 4 and 6 shouted Sale ko jan se mar do 
Immediately thereafter accused Nos 1 and 2 moved menacing ly towards PW 6
The two infants Sahana Khatoon and Chand Tara were then playing in the dalan  outside the western room
On seeing accused Nos 1 and 2 approaching him duly armed with farsas PW 6 apprehended trouble and ran into the adjoining room to 505 arm himself with a spear
His wife PW 5 Laila Khatun who was in the room however prevented him from going out for fear that he may be done to death by the accused persons
Realising that PW 6 has entered the inner room and was prevented by his wife from coming out accused No 1 gave farsa blows on the head abdomen and left thumb of Sahana Khatoon causing serious injuries
Accused No 2 gave one farsa blow on the head of infant Chand Tara
The neighbors PW 2 Ful Mohammad Mian PW 3 Ali Asgar PW 4 Vidya Giri and others namely Jalaluddin Ahmad Sadik Mian Ram Chandra Prasad Bhikhari Mian etc
intervened pacified the assail ants and sent them away
After the assailants had left the scene of occurrence the two injured girls were removed to the city dispensary where the First Information Report of PW 6 was recorded at about 645 pm
Unfortunately Sahana Khatoon died shortly after she was admitted to the dispen sary
Her younger sister Chand Tara succumbed to her in juries on 23rd August 1985
Immediately after the two injured were removed to the dispensary for treatment PW 7 Dr Haliwant Singh who examined Sahana Khatoon noted that she had a sharp cutting injury on the anterior half of the head causing a fracture of cranial bone with the brain substance protruding out a sharp cutting injury on the left illiao fossa and a sharp cutting injury on the left thumb and left index finger
PW 1 Dr Anil Kumar Verma the Senior Assistant Surgeon in Siwan Sadar Hospital performed the autopsy on the dead body of Sahana Khatoon on the afternoon of 26th July 1985
Since the fact that Sahana Khatoon died a homicidal death is not in dispute we need not set out the findings recorded by PW 1 in his postmortem report
Suffice it to say that in the opinion of PW 1 death was due to shock and haemorrhage resulting from the injuries caused to the victim with the farsa
The injured Chand Tara was examined on the same day by PW 7
He had noticed a sharp cutting injury on the anterior half of the head slightly to the right of the mid line with the brain matter coming out from the posterior half
She was admitted as an indoor patient but was discharged on 13th August 1985
A few days later she died on 23rd August 1985
PW 10 Dr Ahmad performed the autopsy on the dead body of Chand Tara and he found that she had an infected ulcer 3 x 1 14 by cranial cavity deep communicated with brain on the anteriofrontal portion of the head On dissection the meningities and the brain matter were found to be congested
In his view the meningitis and encephalitis which had resulted due to infection resulting from the injury caused by a sharp cutting weapon like a farsa were the cause of death
It is evident from the above evidence that Chand Tara also died a homicidal death
506 The finding that both the girls died a homicidal death is unassailable in view of the clear evidence of the aforesaid three medical men namely PW 1 PW 7 and PW 10
The ques tion then is whether the appellants are re sponsible for their deaths and if so to what extent To bring home the guilt against the six accused persons the prosecution examined five eye witnesses to the occurrence namely PWs 2 to 6
These five eye witnesses have unfolded the prosecution case that the six accused persons had formed an unlawful assem bly the common object whereof was to kill PW 6 Baharan Mian
In pursuance of that common object they duly armed with weapons such as farsas bhalas and lathis entered the resi dential premises of PW 6 on the evening of 25th July 1985 and committed the acts set out earlier
The courts below found that the presence of PWs 5 and 6 in the house at that point of time could not be doubted
In fact these accused persons had come to the house to kill PW 6
PWs 2 3 and 4 who can be said to be dependable witnesses have also supported the prosecution case as narrated by PWs 5 and 6
The evidence of these prosecution witnesses stands further corroborated by the evidence of PW 7 who had seen the wounds on the two in jured soon after the incident
PWs 1 and 10 who performed the post mortem examination on the dead bodies also lend corroboration to the testimony of the eye witnesses
The courts below therefore recorded the convictions relying on the evidence of the aforesaid witnesses as set out earlier
In the backdrop of these facts the learned counsel for the accused made the following submissions 1
The evidence adduced by the prosecution to bring home the guilt against the accused particularly the evidence of PWs 2 to 6 is not reliable and should not be acted upon
Even on the facts found proved by the courts below the four accused persons name ly accused Nos 3 to 6 cannot be held guilty of murder with the aid of Section 149 IPC as the killings of the two girls was outside the common object of the unlawful assembly 3
Even if the conviction of accused Nos 1 and 2 for the murder of the two girls is confirmed the facts of the case do not war rant a death penalty more so because the procedural requirement of Section 2352 of the Cr
PC was not followed in letter and spirit and 4
Section 302 IPC and Section 3543 Cr
PC insofar as they permit the imposi tion of the death penalty are violative of 507 Articles 14 19 and 21 of the Constitution of India
We will immediately proceed to deal with these contentions
The learned counsel Shri Garg took us through the evi dence of the five eye witnesses with a view to satisfying us that their version regarding the incident was not free from blemish and it would be highly unsafe to place implicit reliance on their evidence
We have carefully scrutinised the evidence of the aforesaid five eye witnesses and we are inclined to think that their evidence was correctly appreci ated by both the Courts below
The presence of PWs 5 and 6 the parents of the two victim girls in the house at that point of time cannot be disputed
In fact the accused persons had constituted an unlawful assembly with a view to killing PW 6 the father of the two girls
With that avowed object they went duly armed with lethal weapons to launch an attack on PW 6
After accused No 3 had untied the buf fallo notwithstanding the protest from PW 6 accused Nos 4 and 6 gave the call to kill PW 6
Encouraged by this call accused Nos 1 and 2 moved menacingly towards PW 6 who was then standing in osra 
Realising that accused nos
1 and 2 were out to kill him PW 6 went inside the room to fetch a bhala to defend himself
His wife PW 5 who was in the room sensing danger to his life stood in his way and did not permit him to go out and face accused Nos 1 and 2
PWs 2 3 and 4 who were neighbours saw the incident from close quar ters when accused Nos 1 and 2 dealt fatal blows with their farsas to the two girls who were playing in the dalan 
PW 2 who is the brother of PW 6 was in the field to the east of the house and was therefore in a position to see the incident
PW 3 was returning from the bazar when he saw the accused persons at the door of PW 6
He heard the accused persons uttering abuses and the call given by accused Nos 4 and 6 to kill PW 6
He also saw the accused persons entering the house and going towards the room which PW 6 had entered to fetch a bhala
In the end he saw accused Nos 1 and 2 inflicting farsa blows on the two girls
He was cross exam ined at length but except for minor contradictions here and there which are only to beexpected when a witness gives evidence after a lapse of time nothing substantial shaking the substratum of the prosecution case has surfaced to discredit him
PW 4 was at the saw mill of Ram Chandra Prasad when he saw the accused persons coming from the west and proceeding towards the east
He saw these persons going to the house of PW 6 and heard them showering abuses
In his cross examination an attempt was made to show that he could not be present at Ram Chandra Prasad s saw mill at that hours since he was a Government Servant and admittedly his normal duty hours were from 508 10 am to 5 pm
Further effort was to show that he was connected with a case between Bhikhari Dass and Sita Ram Prasad pending under Section 145 Cr
PC in respect of possession of some land
He has also disowned knowledge of any dispute between Bhikhari Dass and Mainuddin Mian in respect of another parcel of land
He was cross examined at length to prove that he was an interested and a biased witness
Even if the evidence of this witness is ignored there is sufficient evidence on record to support the find ings recorded by both the courts below
We are therefore of the opinion that there is no substance in the contention of the learned counsel for the accused that the prosecution evidence is not reliable and should not be acted upon for confirming the conviction of the accused persons
It was next submitted by learned counsel for the accused that some of the prosecution witnesses namely Jallaluddin Bhikhari Mian and Ram Chandra Prasad who were admittedly present at the scene of occurrence according to the prosecu tion and had witnessed the entire incident were deliberately dropped with a view to suppressing the truth
We cannot accept this contention for the simple reason that apart from both PW 5 and PW 6 having deposed that they were pressurised by the defence the High Court has found in paragraph 36 of its judgment that efforts were made by the defence to scare away the witnessess from giving evidence
There is ample material on record to conclude that considerable pressure was exerted on the prosecution witnesses to stay away from the witness box
Some succumbed to the threats and pressure while some others did not and displayed courage to give evidence and state the truth
In this backdrop if the prosecution did not examine Jallaluddin Ram Chandra Prasad and Bhikhari Mian on learning that they were won over it cannot be said that the prosecution was unfair to the ac cused persons
Mr Garg submitted that there was nothing to show that the accused persons were in any way guilty of pressurising or threatening the witnesses
That is besides the point
What is relevant is the fact it so happened
Therefore the non examination of the aforesaid witnesses cannot affect the probative value of the evidence of other prosecution witnesses
We now proceed to consider whether accused Nos 3 to 6 have been rightly convicted with the aid of Section 149 for the acts of accused Nos 1 and 2
Section 141 IPC defines an unlawful assembly as an assembly of five or more persons whose common object is to commit any one of the five acts enumerated therein
The explanation to that section makes it clear that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly
509 Section 142 states whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or continues in it is said to be a member of an unlawful assembly
Section 143 sets out the punishment for being a member of an unlawful assembly
Section 144 prescribes the punishment for joining an unlaw ful assembly armed with deadly weapons
Section 145 pre scribes the punishment for joining or continuing in an unlawful assembly which has been commanded to disperse
Section 146 defines rioting
It says that whenever force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assem bly every member of such assembly is guilty of the offence of rioting
Section 147 then prescribes the punishment for rioting
Section 148 prescribes the punishment for rioting by members of an unlawfully assembly armed with deadly weapons
Then comes Section 149 which reads as under If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the commit ting of that offence is a member of the same assembly is guilty of that offence
 Therefore in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly
Under this section therefore every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same isare done in prosecution of the common object or isare such as every member of that assembly knew to be likely to be committed
This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences commit ted in the course of the occurrence provided the same waswere committed in prosecution of the common object or waswere such as the members of that assembly knew to be likely to be committed
Since this section imposes a con structive penal liability it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associ ates in carrying out the common object of the assembly
What is important in each case is to 510 find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed
There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same
Therefore any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companies constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC
In the present case the common object of the unlawful assembly as alleged in the charge was to kill PW 6 Baharan Mian
To accomplish that objective accused Nos 1 and 2 went after PW 6
Sensing danger PW 6 ran into the adjoining room to fetch a spear to defend himself
His wife PW 5 however blocked his way and did not permit him to go out
When accused Nos 1 and 2 realised that PW 6 was beyond their reach they frustrated at their failure to accomplish their mission wielded their weapons on the innocent girls who were playing in the Dalan
The common object having thus been frustrated accused Nos 1 and 2 took out their wrath on the innocent girls which was no part of the common object of the unlawful assembly
It was not necessary to kill these girls to accomplish their object of killing PW 6 as these two girls had not prevented them from reaching PW 6
The learned counsel for the accused therefore rightly submit ted that while accused Nos 1 and 2 can be punished for their individual acts committed after the common object stood frustrated and abandoned on PW 6 placing himself beyond their reach the other members of the unlawful assem bly could not be punished for the acts of accused Nos 1 and 2 as the killing of the girls was no part of the common object of the assembly
Once PW 6was beyond the reach of his two tormenters the common object to kill him stood frus trated and whatever the individual members did thereafter could not be said to have been done in prosecution of the common object of the assembly
It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members
In order to invoke Section 149 it must be shown that the in criminating act was done to accomplish the common object of the unlawful assembly
Even if an act incidental to the common Object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object
If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same 511 under Section 149 IPC
In the instant case however the members constituting the unlawful assembly had gone to the house of PW 6 to kill him
That was the common object of the unlawful assembly
For accomplishing that common object it was not necessary to kill the two girls who were not an hinderance to accused Nos 1 and 2 accomplishing their common object
We are therefore of the opinion that ac cused Nos
3 to 6 cannot be convicted for the injuries caused to the two minor girls by accused Nos 1 and 2 with the aid of Section 149 IPC We therefore set aside the conviction under Section 326149 IPC and also the sentence imposed on accused Nos
3 to 6 on that count
We however hold accused Nos 3 and 4 guilty under Sections 447 and 148 IPC and confirm the sentences awarded to them on those counts
So also we hold accused Nos 5 and 6 guilty under Sections 447 and 147 IPC and confirm their sentences for the said offences
Having come to the conclusion that Allauddin Mian and Keyambuddin Mian are guilty of murder the next question is what punishment should be awarded to them namely whether extinction of life or incarceration for life
Section 302 IPC casts a heavy duty on the Court to choose between death and imprisonment for life
When the Court is called upon to choose between the convicts cry I want to live  and the prosecutor s demand he deserves to die  it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sentence
In our justice delivery system several difficult decisions are left to the presiding officers sometimes without providing the scales or the weights for the same
In cases of murder however since the choice is between capital punishment and life imprisonment the legislature has provided a guideline in the form of Subsection 3 of Section 354 of the Code of Crimi nal Procedure 1973 the Code which reads as under When the conviction for an offence is punish able with death or in the alternative with imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence
 This provision makes it obligatory in cases of conviction for an offence punishable with death or with imprisonment for life or for a term of years to assign reasons in sup port of the sentence awarded to the convict and further ordains that in case the Judge awards the death penalty special reasons for such sentence shall be stated in the 512 judgment
When the law casts a duty on the Judge to state reasons it follows that he is under a legal obligation to explain his choice of the sentence
It may seem trite to say so but the existence of the special reasons clause  in the above provision implies that the Court can in fit cases impose the extreme penalty of death which negatives the contention that there never can be a valid reason to visit an offender with the death penalty no matter how cruel gruesome or shocking the crime may be
Basing his submission on what is described as the humanitarian ideology or the rehabilitarian philosophy Mr Garg submitted that any law which permits the supreme right to life being sacrificed for the failure of the State to establish a social order in which such crimes are not committed must be struck down as offending Articles 14 19 and 21 of the Constitution
While rejecting the demand of the protagonist of the reformatory theory for the abolition of the death penalty the legisla ture in its wisdom thought that the special reasons clause  should be a sufficient safeguard against arbitrary imposi tion of the extreme penalty
Where a sentence of severity is imposed it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified
Unless there are special reasons special to the facts of the particular case which can be catalogued as justifying a severe punishment the Judge would not award the death sentence
It may be stated that if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall on the lower sentence
In all such cases the law casts an obligation on the Judge to make his choice after carefully examining the pros and cons of each case
It must at once be conceded that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes
Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions for example acid pouring or bridge burning it may be necessary for the Courts to award exemplary punish ments to protect the community and to deter others from committing such crimes
Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the country it left the choice of sentence to the judiciary with the rider that the Judge may visit the convict with the extreme pun ishment provided there exist special reasons for so doing
In the face of this statutory provision which is consistent with Article 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law we are unable to countenance counsel s extreme submission of death in no 513 case
The submission that the death penalty violates Arti cles 14 19 and 21 of the Constitution was negatived by this Court in Bachan Singh vs State of Punjab Mr Garg however submitted that the said decision needs re consideration as the learned Judges constituting the majority did not have the benefit of the views of Bhagwati J who ruled to the contrary
We are not impressed by this submission for the simple reason that the reasons which prevailed with Bhagwati J could not have been unknown to the learned Judges constituting the majority
Even a casual glance at the provisions of the Penal Code will show that the punishments have been carefully graded corresponding with the gravity of offences in grave wrongs the punishments prescribed are strict whereas for minor offences leniency is shown
Here again there is considerable room for manoeuvre because the choice of the punishment is left to the discretion of the Judge with only the outer limits stated
There are only a few cases where a minimum punishment is prescribed
The question then is what proce dure does the Judge follow for determining the punishment to be imposed in each case to fit the crime The choice has to be made after following the procedure set out in sub section 2 of Section 235 of the Code
That sub section reads as under If the accused is convicted the Judge shall unless he proceeds in accordance with the provisions of Section 360 hear the accused on the question of sentence and then pass sen tence on him according to law
 The requirement of hearing the accused is intended to satis fy the rule of natural  justice
It is a fundamental re quirement of fairplay that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should on being found guilty be asked if he has anything to say or any evidence to tender on the question of sentence
This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing
To assist the Court in determining the correct sentence to be imposed the legislature introduced sub section 2 to Section 235
The said provision therefore satisfies a dual purpose it satis fies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded
Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the 514 question of sentence there can be no doubt that the provi sion is salutary and must be strictly followed
It is clear ly mandatory and should not be treated as a mere formality
Mr Garg was therefore justified in making a grievance that the Trial Court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on 31st March 1987 on the same day before the ac cused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced
In a case of life or death as stated earlier the presiding officer must show a high degree of concern for the statutory tight of the accused and should not treat it as a mere formality to be crossed before making the choice of sen tence
If the choice is made as in this case without giving the accused an effective and real opportunity to place his antecedents social and economic background mitigating and extenuating circumstances etc before the Court the Court s decision on the sentence would be vulner able
We need hardly mention that in many cases a sentenc ingdecision has far more serious consequences on the of fender and his family members than in the case of a purely administrative decision a fortiori therefore the princi ple of fairplay must apply with greater vigour in the case of the former than the latter
An administrative decision having civil consequences if taken without giving a hearing is generally struck down as violative of the rule of natural justice
Likewise a sentencing decision taken without fol lowing the requirements of sub section 2 of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order
The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and cir cumstances bearing on the question of sentence are brought on record
Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it it must pronounce the sentence
We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecu tion as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender
In the present case as pointed out earlier we are afraid that tile learned Trial Judge did not attach sufficient impor tance to the mandatory requirement of sub section 2 of Section 235 of the Code
The High Court also had before it only the scanty material placed before the learned Sessions Judge when it confirmed the death penalty
Apart from what we have said earlier we may now proceed to 515 consider whether the imposition of death penalty on the two accused persons found guilty of murder is justified
The Trial Court has dealt with the question of sentence in paragraphs 42 to 44 of its judgment
The reason which weighed with the Trial Court is it is one of the gravest cases of extreme culpability in which two innocent and helpless babies were butchered in a barbarous manner
After taking note of the mitigating circumstances that both the offenders were married young men with children the Trial Court found that since the murders were committed without provocation and in cold blood there was no room for lenien cy as the crime was so abhorrent that it shocked the con science of the court
The High Court while maintaining the conviction of the said two accused persons proceeded to deal with the question of sentence thus The conviction of Allauddin Mian and Keyamud din Mian having been upheld the question is whether the reference should be accepted and the sentence of death against them be upheld
In my view Allauddin Mian and Keyamuddin Mian have shown extreme mental depravity in causing serious fatal injuries to helpless girls of the age of 78 years and 7 months
In my view therefore this murder can be characterised as rarest of the rare cases
the extreme mental depravity exhibited by Allauddin Mian and Keyamuddin Mian impels me to uphold the sen tence imposed on Allauddin Mian and Keyamuddin Mian by the learned Additional Sessions Judge
 It will be seen from the above that the courts below were considerably moved by the fact that the victims were innocent and helpless infants who had not provided any provocation for the ruthless manner in which they were killed
No one can deny the fact that the murders were ghastly
However in order that the sentences may be proper ly graded to fit the degree of gravity of each case it is necessary that the maximum sentence prescribed by law should as observed in Bachan Singh s case supra be reserved for the rarest of rare  cases which are of an exceptional nature
Sentences of severity are imposed to reflect the seriousness of the crime to promote respect for the law to provide just punishment for the offence to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct
It serves a three fold purpose i punitive ii deterrent and iii protective
That is why this Court in Bachan Singh s case observed that when the question of choice of sentence is under consideration the Court must not only look to the crime and the victim but also the 516 circumstances of the criminal and the impact of the crime
on the community
Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate the Court should ordinarily impose the lessor punishment and not the extreme punishment of death which should be reserved for exceptional cases only
In the subsequent decision of Machhi Singh vs State of Punjab this Court after culling out the guidelines laid down in Bachan Singh s case observed that only in those exceptional cases in which the crime is so brutal diabolical and revolting as to shock the collective conscience of the community would it be permissible to award the death sentence
In the present case unfortunately the material for choice of sentence is scanty
The motive for the crime is obscure the one stated namely the quar rel between two infants of both sides does not seem to be correct
The killings were not for gain
The charge shows that the target was PW 6 the father and not the two in fants
The killing of the two infants was not in the contem plation of any of the accused
Both the girls were the victims of the offenders  ire resulting from frustration at the escape of their target
There is nothing so uncommon about the crime as to make the case an exceptional one
The mere fact that infants are killed without more is not sufficient to bring the case within the category of the rarest of rare  cases
In Bachan Singh s case the question of laying down standards for categorising cases in which the death penalty could be imposed was considered and it was felt that it would be desirable to indicate the broad guidelines consist ent with section 3543 of the Code without attempting to formulate rigid standards
That was because it was felt that standardisation of the sentencing process would leave little room for judicial discretion to take account of variations in culpability even within the same category of cases
After referring to the aggravating circumstances Para 202 and the mitigating circumstances Para 206 pointed out by counsel the Court observed that while these were relevant factors it would not be desirable to fetter judicial discre tion
It pointed out that these factors were not exhaustive and cautioned courts aided by broad illustrative guide lines indicated by us will discharge the onerous function with evermore scrupulous care and human concern  consistent with Section 3543 of the Code
In the subsequent decision in Machhi Singh s case the Court tried to indicate the type of cases which may fall within the exceptional class without attempting to introduce rigidity
It would not be fair to read the decision as an attempt to fetter judicial discre tion
Even in cases of the 517 type indicated in that case circumstances may vary which would necessitate a different approach
For example the circumstances of this case show that the offenders had killed the two girls not because of any hatred for them or to accomplish their objective but out of frustration and anger at having lost their target
Unfortunately as the trial Judge did not give time to the convicts to reflect on the question of sentence the chance however remote of the true motive for the crime surfacing was lost
The anteced ents of the accused their socioeconomic conditions the impact of their crime on the community etc have not come on record
The absence of these particulars makes the choice of punishment difficult
In view of what we have observed earlier and having regard to the circumstances in which the murders took place we think the extreme punishment of death is not warranted
In the result both the appeals are partly allowed
The conviction of accused Nos 1 and 2 under all the heads is confirmed but their sentence of death for killing Shahna Khatoon and Chand Tara respectively is converted to im prisonment for life
So far as accused Nos 3 to 6 are concerned their conviction and sentence under Section 326 149 1PC is set aside however their conviction and sentence under the other heads is maintained
Their bail bonds will stand cancelled if they have already served out their sentences otherwise they will surrender to their bail and serve out the remaining sentence
The appeals will stand disposed of accordingly
RSS Appeals allowed partly


Summary:
The respondent tenant fell into arrears of rent for two months consecutively
The rent was payable in advance
He was served with a notice of demand within seven days of which he sent a bank draft purporting to be the rent for the first month and within a month another bank draft for the like amount
The landlady neither encashed nor returned them
After the notice period she filed an application for his ejectment
The Rent Controller held that the tenant was not in default
The Tribunal however found that when the notice of demand was served the arrears of rent for the two months had arisen that the bank draft sent thereafter related to the rent for the first month only that as the rent for the second month had also become due but had not been tendered the landlady was justified in not accepting the tender and that when the respondent again sent a draft for the second month the rent for the third month had also fallen due but was not tendered
It thus took the view that the respondent had not tendered the arrears of rent due up to date within two months of the notice of demand and held that the ground of non payment of rent stood established
Allowing the appeal the High Court took the view that section 141a of the Delhi Rent Control Act 1958 made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recov erable from him within two months of the date on which a notice of demand was served on him by the landlord the arrears being the rent due on the date of the notice
As in the instant case the notice called for payment of the arrears due for the two months and the bank drafts were tendered within the period indicated in the notice the notice was satisfied
Dismissing the appeal by special leave the Court 745 HELD The arrears of rent envisaged by section 141a of the Delhi Rent Control Act are the arrears demanded by the notice for payment
The arrears of rent due cannot be ex tended to rent which has fallen due after service of the notice
747DE In the instant case the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice
The High Court was therefore right in the view taken by it
747DE Jag Ram Nathu Ram vs Shri Surinder Kumar SAO No 52 of 1975 and SL Kapur vs Dr Mrs PD Lal All India Rent Control Journal 1975 322 overruled