Sipahi Lal vs State

R.A. Misra, J.—The accused Appellant Sipahi Lal has preferred this appeal against the judgment and order dated 31st August, 1982 passed by Sri L.S.P. Singh Sessions Judge (NMA) Kanpur convicting him u/s 302 IPC and sentencing him to death.

The facts which have given rise to this appeal are briefly put as below,

The accused Appellant Sipahi Lal aged about 45 years is a resident of village Saraiyabhur, police station Bilhaur, district Kanpur. Rajendra Prasad deceased aged about 26 years, was bis eldest son. Rakesh Kumar (PW 1) is the second son of the Appellant and Awadhesh (not produced) is the youngest son. Smt. Prema Devi (PW 2) is the widow of Rajendra Prasad deceased. Smt. Gomit (PW 3) is the wife of the accused Appellant. Smt. Sushila Devi aged about 18 years (PW 8) is the wife of Rakesh (PW 2).

The accused used to harass his wife Smt. Gomit and so she left for her parent''s home in village Ram Gopalpur nearly 12 or 13 years ago alongwith his eldest son Rajendra Prasad deceased and began to live there. Rakesh Kumar (PW 1) and his younger brother Awadhesh alongwith their sister Vidyawati continued to live with their father in the village Saraiyabhur. Rakesh Kumar (PW I) was married to Smt Sushila Devi in the year 1980 (nearly three years before his deposition in the trial court was recorded). Unfortunately the accused had an evil eye on Smt. Sushila Devi (PW 8) and began to make sexual advance towards her and went to the extent of committing rape on her person inspite of the protest of Rakesh Kumar (PW 1). He used to threaten to kill Rakesh Kumar with a Gandasa. Rakesh Kumar therefore, went to his elder brother in village Gopalpur and after narrating the entire matter brought him and his mother to village Saraiyabhur. Rajendra Prasad, his mother as well as his sister asked the accused to refrain from indulging in such disgraceful activities but with no result. Consequently they separated their father and asked him to live away from the house. Aggrieved thereby, the accused gave a beating to the deceased Rajendra Prasad. The accused began to live in a hut in the village alongwith Smt. Gomit his wife (PW 2) but after some time he turned her out of the hut and began to live there all alone. The accused continued to make attempts to enter the house and make advances to Smt. Sushila Devi. This caused quarrel and marpit between Rajendra Prasad deceased and the accused on two or three occasions. Rakesh Kumar (PW 1) lodged the first information report on 25th October, 1980 regarding all these matters.

Rejendra Prasad deceased alongwith his wife Smt. Prema Devi was sleeping on the roof of his house in village Saraiyabhur on the night between 19/20th of February, 1982. Smt. Sushila was away in village Gopalpur. Rakesh Kumar (PW 1) was sleeping in the verandah of the house in the ground floor. Smt. Gomit was sleeping inside the room alongwith Awadhesh. Rajendra Prasad deceased woke up at 3 O''clock in the night for making water. His wife Smt. Prema Devi (PW 2) also woke up The accused Sipahi Lal caught the hands of Rajendra Prasad deceased just when he came out of the Verandah for making water and began to deal knife blows on his person. The accused possessed a big knife. Rajendra Prasad and his wife Smt. Prema Deve, both cried whereupon Kakesh Kumar (PW 1) woke up. He came out in the Angan of the house and flashed his torch to find his father scaling down in the angan armed with a big knife. He made queries, whereupon the accused threatened to kill him and made good his escape by jumping down through the wail. Rakesh Kumar (PW 1) and Smt. Gomit (PW 3) went on the roof and found Rajendra Prasad lying dead there. Smt. Prema Devi (PW 2) told them that their father the accused had killed him with a big knife. Rakesh Kumar lodged first information report of this occurrence at 7-30 A.M. on 20th February, 1982. Sri Mahendra Singh Sub Inspector (PW 9) investigated the case and after completing the investigation he submitted chargesheet on 9th March, 1982.

Dr. G.P. Gupta, Medical Officer T.B. Clinic Kanpur performed the autopsy on the dead body of Rajendra Prasad on 21st Feb., 1982 at about 1 P.M. and found the following antemorten Injuries on the dead body. In his opinion the death was caused due to shock and haemorrhage caused by injury No. 13.

Incised wound 20 cm x 2-1/2 cm x bone deep present on nape of neck extending upto left side of neck.

Incised wound of 26 cm x 3 cm x bone deep, 3 cm above injury No. 1 present on occipital region.

Two incised wounds of 16 cm x 1-1/2 cm muscle deep and 1 cm x 2 cm x muscle deep, 3 cm away from each other present on upper third of right side of back.

Two incised wounds of 22 cm x 5 cm x bone deep and 18 cm x 4 cm x bone deep present on left side back.

One incised wound of 10 cm x muscle deep 2 cm below injury No. 4 right side of back.

Three incised wounds of 16 cm x 6 cm bone deep, 14 cm x 8 cm x bone deep and 8 cm x 6 cm x muscle deep, 2 and 3 cm apart from each other, present on upper third of left side of back.

Two incised wound 8 cm x 4 cm bone deep and 10 cm x 4cm x bone deep, 3 cm apart from each other present posterior aspect of right upper arm.

Three incised wound of 6 cm x 4 cm x muscle deep, 5 cm x 3 cm x muscle deep, 6 cm x 1 cm x muscle deep present on left upper arm.

Incised wound of 6 cm x 2 cm muscle deep present on left forearm (middle and front).

Incised wound 10. cm x 2 cm x bone deep present on dorsal aspect of left hand extending back to palm in between middle and ring finger.

Incised wound of 10 cm x 4 cm x muscle deep on posterior aspect of left thigh.

Incised wound 8 cm x 2 cm muscle deep present on posterior aspect of left atellar region.

Incised wound of 26 cm x 6 cm x muscle deep present on left side of abdomen 6 cm x above the umbilicus extending to back up to 5 cm away from vertical column. Small intestine is coming out from the wound.

Incised wound 6 cm x 2 cm x muscle deep present on left side of back, 4 cm below from injury No. 14.

Incised wound 10 cm x 4 cm x muscle deep present on right (sic) region on back.

The accused pleaded not guilty and claimed to be tried.

The prosecution examined Rakesh Kumar (PW 1), Smt. Prema Devi (PW 2), Smt. Gomit (PW 3), Putti Lal (PW 4), Shiv Raj Singh (PW 5), Smt. Sushila Devi (PW 8) and Mahendra Singh (PW 9). The evidence of Nawab Singh (PW 6) and Babu Lal (PW 7) being of formal nature was tendered by affidavit. The learned Sessions Judge on a consideration of the entire evidence arrived at the conclusion that the charge u/s 302 IPC was proved beyond doubt against the accused Appellant. He consequently convicted and sentenced him of the same. He has felt aggrieved and come up in appeal. There is a usual reference by the Sessions Judge for the confirmation of the death sentence.

Rakesh Kumar (PW 1) and Smt. Prema Devi (PW 2) both have deposed that the murder of Rajendra Prasad has been committed at about 3 A.M. on 20th of February 1982. The first information report which has been promptly lodged fully corroborates the factum of the murder having been committed at about 3 A.M. on 20th February 82. The evidence of Smt. Gomit wife of the accused supports the prosecution version regarding the time of the occurrence. The Medical expert Dr. G.P. Gupta (CW 1) who performed autopsy on the dead body of Rajendra Prasad has opined that the death of Rajendra Prasad could have been caused at about 3 A.M. on 20th of February 82. The medical evidence is thus fully consistent with the eye account of the occurrence given by witnesses of fact regarding the time of the occurrence. No other time of occurrence has even been suggested to the witnesses in their cross examination. It is thus proved beyond doubt that the murder of Rajendra Prasad aged about 26 years has been committed at about 3 A.M. on 20th of February 1982.

Smt. Premawati is widow of the deceased Rajendra Prasad. She has deposed that on the night of the occurrence she along with her husband was sleeping on a hut over the roof of their house and his murder was committed just when he went outside the hut to make water. Rakesh Kumar (PW 1) the younger brother of the deceased and Smt. Gomit (PW 3) the mother of the deceased fully corroborate the fact that the deceased was sleeping on the roof of his house on the night of the occurrence and that his murder has been committed on the same roof. Sri Mahendra Singh (PW 9) the then S.I. P.S Bilhaur has found the dead body of Rajendra Prasad on the roof of the house. No other place of occurrence has even been suggested by the defence to the prosecution witnesses. It therefore leaves no room for doubt that the murder of Rajendra Prasad had been committed on the roof of his house where he was sleeping along with his wife Smt. Prema Devi (PW 2).

The medical expert Dr. Gupta (CW 1) has opined that the antemortem Injuries which he found on the dead body were sufficient to cause death in the ordinary course of nature and his opinion goes unchallenged.

Prema Devi (PW 2) has deposed that the injuries have been caused by means of a big knife which is used for cutting palm fruits. Rakesh Kumar (PW 1) and Smt. Gomit (PW 3) also swear to have seen the assailant armed with a big knife which is usually used for aforesaid purpose of cutting palm fruit. The medical expert Dr. Gupta has fully supported the prosecution story that the antemortem injuries found on the dead body could have been caused by a knife used for cutting palm fruits. It is thus proved beyond doubt that the injuries have been caused on the person of the deceased by means of a big knife used for cutting palm fruits.

Smt. Gomit (PW 3) is wife of the accused. She swears to have remained at her parents home along with her son Rajendra Prasad for about ten years. She had left her husband''s house because the latter used to beat her. Rakesh Kumar (PW 1) fully supports this fact. Rakesh Kumar has denied the defence suggestion put to him in cross-examination that his mother Smt. Gomit had developed illicit connection with one Ram Gopal and so the accused had turned her out of the house. Smt Gomit has also denied the same suggestion put to her in cross-examination. Smt. Prema Devi (PW 2) the wife of the deceased has frankly admitted the fact that Ram Gopal has got some cultivation in the village and does come to her house. Her family has got no cultivation. They work as labours for Ram Gopal. She has categorically denied the defence suggestion that she had developed illicit connection with Ram Gopal and so with his assistance has got her husband killed. Sushila Devi (PW 8) has however admitted in her cross-examination that in her opinion the relations of her father-in-law were bad with her mother-in-law because the latter was connected with Ram Gopal. Sushila Devi is wife of Rakesh Kumar (PW 1) and she was merried during the period when Smt. Gomit the wife of accused was living away at her parents house. She is, therefore, not in a position to have any personal knowledge about the character and conduct of her mother-in-law and it so appears that her opinion on this point is based on rumours. Having considered the entire evidence on the record we find no substance in the defence suggestion that either Smt. Gomit, wife of the accused or Smt. Prema Devi wife of the deceased had illicit connection with Ram Gopal and that they could have any motive for getting Rajendra Prasad killed and for falsely implicating the accused in the crime. The evidence on the record on the other hand leads to inevitable conclusion that the accused used to harass and beat his wife Smt. Gomti with the result that she left her house and remained at her parents home along with the deceased for about 10 years. It is also in evidence that the deceased Rajendra Prasad was married while he was living at her maternal uncle''s home. It is significant to note that had Smt. Gomti developed illicit connection with Ram Gopal, she would not have left the village and lived away from him for a long period of ten years. The fact that she lived away from her husband''s village for about ten years is a material circumstance which belies the defence suggestion that she had developed illicit connection with Ram Gopal who was a neighbour of her husband.

Smt. Sushila Devi aged about 18 years (PW 8) is the wife of Rakesh Kumar aged about 18 years. He is second son of the accused. Rakesh Kumar was living with his father when his mother left the village and during the entire period of ten years he continued to live with his father while his mother was living with her parents. He was married to Sushila somewhere in the year 1979 or 1980 (three years before his statement was recorded by the trial court). His mother was not living with them when he was married. She was living at Gopalpur along with Rajendra Prasad. So naturally the entire marriage ceremony was performed under the guidance of the accused. Sushila Devi (PW 8) swears that the accused had an evil eye on her since she came to live with him as his son''s wife. She swears that the accused used to drag her to his bed and she disclosed this fact to her husband who asked the accused not to do so but the latter used to threaten her husband with death by saying that he would kill him with Gandasa. In her cross examination she has admitted that when for the first time the accused caught her hand and dragged her then she informed her husband and a quarrel followed between her husband and the accused. Thereafter the accused did not drag her but continued to tease her. In her cross-examination she further says that in the nights the accused used to come in between her and her husband while they used to be sleeping on the bed. In her cross-examination she has gone to the extent of admitting the fact that the accused had sexual intercourse with her and thereby committed rape on her person and she did inform her husband about the same. Rakesh Kumar (PW 1) the husband of Smt. Sushila Devi fully corroborates these facts. He has mentioned in the first information report also that the accused wanted to keep Sushila by using force. Rakesh Kumar (PW 1) who is the son of the accused and Sushila (PW 8) who is daughter-in-law of the accused have no reasons in the least to swear falsehood on such facts against their father. It is significant to note that these activities of the accused had gone to this extent that on 25th October 1980 Rakesh Kumar was compelled to lodge first information report Exh. Ka. 6 at Police Station Bilhaur with the allegations that the character of Sipahi Lal his father was bad and that he (accused) had developed illicit connection with his (Rakesh Kumar''s) wife. He saw the fact and so he was beaten by the accused who said that he would keep her as his own wife and would kill him. It is not possible to believe that a son would lodge a false report against his father with such disgraceful allegations. The only possible conclusion which can be drawn from the evidence on the record is that the accused had an evil eye on the young wife of his son Rakesh Kumar and used to physically assault her and commit rape on her person against her and her husband''s wishes. The accused used to beat and threaten Rakesh Kumar with death whenever he protested against these sexual activities.

It has been held above that the deceased Rajendra Prasad along with his mother Smt. Gomti (PW 3) and his wife Smt. Prema Devi (PW 2) was living at Gopalpur away from his father for about 10 years as accused used to harass and misbehave with Smt. Gomti. Rakesh Kumar (PW 1) swears that with a view to save his wife Smt. Sushila Devi (PW 8) from the sexual onslaughts of his father he requested the deceased Rajendra Prasad to come and live with them at village Saraiyabhur along with his wife and mother. The deceased Rajendra Prasad agreed and came to live at Saraiyabhur with Rakesh Kumar and other family members. Smt Prema Devi (PW 2) and Smt. Gomti (PW 3) also came back to live at Saraiyabhur. The evidences of Smt. Prema Devi (PW 2), Smt. Gomti (PW 3) and Smt. Sushila Devi (PW 8) fully corroborate the aforesaid version given by Rakesh Kumar and we see no reason to discard their sworn testimony. It is therefore, proved beyond doubt that with a view to prevent the sexual invasion of the accused upon Smt. Sushila Devi, the deceased Rajendra Prasad alongwith his mother and wife came from village Gopalpur to live with the accused and other members of the family at village Saraiyabhur.

The evidence of Rakesh Kumar (PW 1) reveals that the presence of Rajendra Prasad deceased alongwith his wife and mother could not check the sexual activities of the accused, whereupon the deceased Rajendra Prasad, his mother Gomti as well as his sister all asked the accused to refrain himself from such disgraceful activities but instead of controlling himself, the accused went to the extent of beating the deceased with the result that the accused was forced by these family members to leave the house and reside in a hut in a field alongwith his wife Smt. Gomti. He lived there alongwith his wife Smt. Gomti for some time but subsequently be turned Smt. Gomti his wife out of the hut and began to reside there all alone. These facts are fully corroborated by the evidence of Smt. Prema Devi (PW 2) and Smt. Gomti (PW 3) and Smt. Sushila Devi (PW 8). There is nothing in their cross examination to discredit their testimony. These facts are proved beyond doubt. Rakesh Kumar (PW 1) swears that the accused continued to make attempt for entering the house after he was turned out and forced to live in a hut in the village and continued to make sexual advances towards Smt. Sushila Devi. The deceased protested and marpit took place in between the deceased and the accused on that account. Smt. Gomti (PW 3) and Smt. Sushila Devi (PW 8) fully corroborate this fact. It, therefore, leaves no room for doubt that inspite of all efforts by the family members, the accused''s sexual invasions upon Smt. Sushila Devi (PW 8) his son''s wife continued and the deceased also continued to protest, being the elder brother of Smt. Sushila''s husband. The presence of the deceased as well as his protests, were not at all liked by the accused and marpit used to take place in between the two on that account. The accused under these circumstances considered the deceased a potential obstruction in persuing his sexual activities and onslaughts upon Smt. Sushila Devi and thus had sufficient motive for committing his murder in order to remove that obstruction.

Smt. Prema Devi (PW 2) was sleeping in a hut on the roof of her house in village Saraiyabhur on the night of occurrence. She swears that at about 3 O''clock in the night her husband woke up and went outside the hut to make water. She also woke up; just then the accused caught the deceased and dragged him. The accused dealt knife blows on his person, causing his instantaneous death. She says that the cries raised by her and her husband attracted Rakesh Kumar who flashed his torch from the ground floor. Ram Gopal his neighbour also shouted from his roof. She further swears that Sipahi Lal accused made good his escape by jumping down through wall. She has been thoroughly cross examined but nothing has been pointed out which may go to discredit her testimony. She is most natural witness of the occurrence and her presence there, is not at all open to doubt. She has no reason to swear falsehood against the accused who is her real father-in-law. Rakesh Kumar (PW 1) is the son of the deceased and Smt. Gomti (PW 2) is the accused''s wife. Both swear that on hearing the cries raised by the deceased and his wife they did come in the angan of the house to find the accused scaling down through the ladder and thereafter making good his escape by jumping down through the wall. Both of them swear that the accused was armed with a big knife which is used for cutting palm fruits. It is not possible to believe that Rakesh Kumar and Smt. Gomti are falsely implicating the accused in this crime. They are also natural witnesses of the occurrence and their presence in the house on that night has not been challenged by the defence. Their presence is proved beyond doubt and they must be believed when they say to have seen the accused scaling down through the ladder armed with a big knife and thereafter making good his escape. It is also in the evidence that the accused alongwith the knife made good his escape by jumping down the wall. The medical evidence as discussed above is fully consistent with the ocular account of the occurrence given by the witnesses of fact. The only possible conclusion which can be drawn from the evidence on the record as discussed above is that the accused Sipahi Lal has committed murder by intentionally causing the death of his own son Rajendra Prasad on 20th day of February, 1982 at about 3 P.M. at the roof of his own house situate in village Saraiyabhur, police station Billhaur, district Kanpur. The charge u/s 302 IPC is proved against him beyond any shadow of doubt. He has been rightly convicted of the same by the court below.

Now coming to the point of sentence; prior to 1955, Section 367(5) of the Code of Criminal Procedure, 1898 insisted upon the court stating its reasons if the sentence of death was not imposed in a case of murder. The result was that that it was thought that in the absence of extenuating circumstances, which were to be stated by the Court, the ordinary penalty for murder was death. In 1955, Sub-section (5) of Section 367 was deleted and the deletion was interpreted, at any rate by some Courts to mean that the sentence of life imprisonment was the normal sentence for murder and the sentence of death could be imposed only if there were aggravating circumstances. In the Code of Criminal Procedure of 1973, there is a further swing towards life imprisonment. The discretion to impose the sentence of death or life imprisonment is not so (sic) now. Section 354(3) of the new Code of Criminal Procedure has narrowed the discretion. Death sentence is ordinarily ruled out and can only be imposed for special reasons. We are, therefore, left with the task of discovering special reasons in the instant case for confirming the death sentence awarded by the court below.

In Rajendra Prasad''s case decided on 9-2-79 Rajendra Prasad Vs. State of Uttar Pradesh, it has been held that:

Special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty.

and it has been observed:

There is a divinity in every man and that none is beyond redemption. But death penalty, still on our Code is the last step in a narrow category where, within a reasonable spell, the murderer is not likely to be cured and tends to murder others, even within the prison or immediately on release, if left alive. The patience of the society must be tempered by the prudence of society security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being. The extreme penalty can be invoked only in extreme situation....

It is illegal to award capital sentence without considering the correctional possibilities inside prison. Anger, even judicial anger, solves no problem but creates many....

Likewise, if a man is a murderer, so hardened, so blood-thirsty, that within the prison and without, he makes notices about killing others or carries on a prosperous business in cadavers, then he becomes a candidate for death sentence. If psychoanalysts and psychiatrists find him irredeemable in the reasonable run of time then his being alive will involve more lives being lost at his hands. If, however, he can be reformed in a few years time by proper techniques of treatment, imprisonment for life is good enough. But, on the other hand, if he is far too hardened that it has become his second nature to murder, society cannot experiment with correctional strategy, for, when he comes out of jail be may kill others Such an incurable murderer deserves to be executed under the law as it stands....

We may constellate some of the principles. Never hang unless society or its members may probably lose more lives by keeping alive an irredeemable convict. If rehabilitation is possible by long treatment in jail, if deterrence is possible by life-long prison terms, capital sentence may be misapplied. Death penalty is constitutionalised by reading, into Section 354(3) Code of Criminal Procedure those ''special reasons'' which validate the sentence as reasonably necessitous and non-arbitrary, as just in the special social circumstances.

It has further been emphasised in Rajendra Prasad''s case (supra) that the personal and social, the motivational and physical circumstances of the criminal are relevant factors in adjudging the penalty as clearly provided under the New Code of Criminal Procedure (Code of 1973). In Ediga Anamma Vs. State of Andhra Pradesh, at page 806 it has been observed:

Where a murderer is too young or too old, the clemency of penal justice helps him. Where he suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to down grade the crime into a lesser one, judicial commutation is permissible. Other general social pressures warranting judicial notice. With an extenuating impact may, in special cases, induce the lesser penalty....

In Srirangan Vs. State of Tamil Nadu, the Hon''ble Supreme Court set aside the death sentence even though three had been killed. That was a case of three innocent lives put down without provocation and although the courts below had concurrently inflicted death sentence, a Bench of three Judges of Hon''ble Supreme Court confining the focus on sentence alone commuted the punishment. The crucial role of young age (in his twenties) and a trace of mental imbalance in robbing the propriety of death sentence impost even from such a ghastly case of triple murder was emphasised and following observations were made which help us in considering the special reasons u/s 354(3) of Code of Criminal Procedure:

The plurality of factors bearing on the crime and the doer of the crime must carefully enter the judicial verdict. The winds of penological reform notwithstanding the prescription in Section 302 binds the death penalty is still permissible in the punitive pharmacopoea of India. Even so, the current or precedents and the relevant catena of clement facts personal, social and other, persuade us to hold that even as in Nemu Ram Bora Vs. The State of Assam and Nagaland, the lesser penalty of life imprisonment will be a more appropriate punishment here.

In Bishnu Deo Shaw Vs. State of West Bengal, the accused had killed his son because he suspected that the deceased was not his own son and he had for years been brooding over the suspected infidelity of his wife and the injustice of having a son foisted on him. The High Court confirmed the death sentence awarded on the basis that the murder was ''cruel and brutal'' on the ground that the accused deserved no mercy because he showed no mercy. The Hon''ble Supreme Court observed that mere use of adjectives like brutal and cruel does not supply the special reasons contemplated by Section 354(3) of Code of Criminal Procedure and as such the death sentence was liable to be set aside. In Dalbir Singh''s case Dalbir Singh v. State of Punjab AIR SC 1384 four livse were lost and two accused persons were found guilty of committing four murders. The death sentence was confirmed by the High Court. The Hon''ble Supreme Court held that in the circumstances the death sentence awarded watt liable to be reduced to one of life imprisonment. The earlier provocation came from the deceased''s side by beating up one accused. The parties including the prosecution group were tipsy. There had been antecedent irrigation irritation between them. The ratio of decision in Rajendra Prasad''s case (supra) is never hang unless society or its members may probably lose more lives by keeping alive an irredeemable convict. If rehabilitation is possible by long treatment in jail, if deterrence is possible by life-long prison terms, capital sentence may be misapplied. Death penalty is constitutionalised by realing into Section 354(3), Code of Criminal Procedure, those special reasons'' which validate the sentence as reasonably necessitous and no-arbitrary, as just in the special societal circumstances. We have in the instant case to consider whether the Appellant Sipahi Lal is a social security risk altogether beyond salvage by therapeutic life sentence? We find nothing on the record to indicate that he was a desperate hedonist or randy rapist, who sipped every flower and changed every hour so as to be a sex menace to the locality. The record shows that he has a wife, daughter and three grown up sons. It is a case of traumetic perverted sex. The Appellant developed such a fancy for his sons'' wife that under the compulsion of passion and just for her he committed the sons'' murder to satisfy the lust. There is a continuous change in the realm of time and with the passage of time the lust and passion if the Appellant is likely to venish alongwith the fading charm of the lady. In the instant case, therefore, rehabilitation is possible by long term in jail as well as deterrence is also possible by life long prison terms. We, therefore, find it a fit case to commute the death sentence to life imprisonment.

Before taking leave to this case we would like to emphasise that the Sessions Courts should strictly follow the procedure laid down in Section 235 of the New Code of Criminal Procedure. The section provides that if the court upon consideration of the evidence led before it holds the accused guilty of any offence, it must pronounce the judgment to the extent that it holds the accused guilty of certain offence. Thereafter the statutory duty is cast upon the court to hear the accused on the question of sentence. Sub-section (2) obligates the court to hear the accused on the question of sentence. In fact, this provision should be construed to mean that where the court has to choose one or the other sentence and if with a view to inflict certain sentence special reasons are required to be recorded obviously the State which is the prosecutor must be called upon to state to the court which sentence as a prosecutor it would consider appropriate in the facts and circumstances of the case. In the case before us the learned Sessions Judge instead of calling upon the public prosecutor to state whether the case is one where the accused should be awarded capital sentence, called upon the defence counsel to produce evidence, if any, and when the defence counsel refused to produce any evidence he heard him on the question of sentence. As we have observed above the provisions of Section 235 New Code of Criminal Procedure shall be strictly followed in its true spirit. We would like to extract the detailed procedure laid down by Hon''ble Supreme Court in Rajendra Prasad''s case for the observance of the Court below:

Where the accused is convicted for an offence u/s 302 IPC, the Court should call upon the Public Prosecutor at the stage of Section 235(2) to state to the court whether the case is one where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life. If the Public Procecutor informs the Court that the State as prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the Sessions Judge agrees with the submission, the matter should end there.

If on the other hand the Public Prosecutor states that the case calls for extreme penalty prescribed by law, the Court would be well advised to call upon the public prosecutor to state and establish if necessary, by leading evidence, facts for seeking extreme penalty prescribed by law. Those reasons and the evidence in support of them would provide the special reasons according to the State which impel capital punishment. It would be open to the accused to rebut this evidence either by submissions or if need be by leading evidence. At that stage the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing on the question of sentence alone and not on the validity of the verdict of the guilty. After considering the submissions and evidence it would be for the Court with its extreme judicious approach and bearing in mind the question that the extreme penalty is more an exception, to determine what would be the appropriate sentence. This would ensure a proper appreciation of vital considerations entering judicial verdict for determining the quantum of sentence.

We hope the Bar will assist the Bench in fully using the resources of the New provision to ensure socio-personal justice, instead of ritualising the submissions on sentencing by reference only to materials brought on record for proof or disproof of guilt.

In the end we record our appreciation of the assistance given by Sri S.N. Mulla the senior counsel of this Court who has placed the entire evidence before us. Sri B.N. Singh Advocate was appointed amicus curiae for the Appellant and Sri Mulla as the senior counsel. Sri B.N. Singh did not appear whereas Sri Mulla appeared and took pains in placing the entire record before us.

In the result the appeal is partly allowed. The conviction passed against the Appellant Sipahi Lal u/s 302 IPC is confirmed but the death sentence is commuted to life imprisonment. He is in jail. Let him serve out the life imprisonment. The usual reference by the Sessions Judge for confirmation of death sentence is rejected.