JUDGMENT Imtiyaz Murtaza, J.
1. This jail appeal has been filed against the judgment and order dated 28.9.2004 passed by Addl. Sessions Judge, Court No. IV Moradabad whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to death.
2. Brief facts of the case, as mentioned in the first information report lodged by Smt. Kashmiri Devi, are that about 2 years prior to the occurrence her son Kalwa had murdered his younger brother Bhallu and he was sent to jail, but, after the trial he was acquitted by the court. Kalwa used to ask his father for getting him married. He used to tell his father that he is deliberately not marrying him and had threatened him also. Due to this reason he was annoyed with his father. On the date of occurrence he abused his father. Kalwa had also asked his father to give him money for his marriage. She alongwith her husband Atar Singh, son Kalwa and daughter Mamdesh were going to their field in their buffalo cart for bringing fodder. At about 12 O'clock, when they reached near the urad field of Tirmal, Kalwa told his father that he will neither give him money nor marry him, therefore, he will kill him. Thereafter, Kalwa felled down his father in the field and cut his throat with Darati. She and her daughter raised alarm, Rajpal and Rajendra working in the nearby fields reached and witnessed the occurrence and on their challenging him Kalwa ran way leaving the Darati. After sometime her husband succumbed to his injuries. She lodged the report at the police station on 12.9.2003 at 3.15 p.m. After the registration of the case investigating officer reached at the place of occurrence and prepared the photo lash (Ext. Ka-3) letter to C.M.O.(Ext Ka-4) letter to R.I. (Ext. Ka-5) sample seal (Ext. Ka-6) Inquest-report (Ext. Ka-7) and the dead body was sent for the post mortem examination. After the completion of the investigation charge sheet was submitted against the appellant.
3. The post mortem was conducted by Dr. Rajeev Lochan Gupta, Medical Officer, In charge MCV Katghar, Moradabad on 13.9.2003 at 1 p.m. and he noted following ante mortem injuries
1. Incised wound- 8 cm. x 5 cm. in front of neck, 1 cm. above the sternum, tailing towards right side of neck, margins clean cut, Trachea cut, both carotid artery cut, muscles under the wound cut, clotted blood present around the wound, oesophagus cut.
2. Incised wound - 3 cm. x 1 cm. over the pinna of right ear, muscle deep, margins clear cut, clotted blood present around the wound.
3. Multiple abrasions in an area of 10 cm. x 2 cm. over right fore arm 8 cm. above the wrist.
4. In the opinion of the doctor cause of the death was shock and haemorrhage due to ante mortem injuries.
5. After submission of the charge sheet, the case was committed to the court of sessions and the Sessions Judge framed charge under Section 302 I.P.C.
6. In the trial, the prosecution has examined three witnesses, namely, P.W. 1 Smt. Kashmiri Devi, an eye witness and informant of the case, P.W. 2 Rajendra and P.W. 3 Dr. Rajeev Lochan Gupta, who conducted the autopsy on the dead body of the deceased Atar Singh.
7. P.W. 1 Smt. Kashmiri Devi deposed that earlier the appellant had committed murder of his younger brother Bhallu but, in the absence of evidence, he was acquitted. Kalwa's marriage could not be settled because he had committed murder of his brother, Kalwa used to fight with his lather for settling his marriage and also used to demand money for his marriage. On the date of occurrence at about 7 a.m. he asked his father either to settle his marriage or give him money so that he himself could settle his own marriage. On the date of occurrence at about 11-12 O'clock she, alongwith her husband Atar Singh, son Kalwa and her daughter Mamdesh, were going to bring fodder from their field. Kalwa was sitting in the Buffalo cart alongwith his father. As they reached near the field of Tirmal he pulled his father from the cart and felled, him on the ground and cut his neck with a Darati, she and her daughter raised alarm, Rajpal and Rajedra reached there and Kalwa ran away in the Bajra field. Her husband died on the spot. On her dictation Umesh prepared the report and she lodged the same at the police station, F.I.R. is (Ext. Ka-1).
8. P.W. 2 Rajendra deposed that, on the date of occurrence, at about 12 O'clock he was going to market from his house. Atar Singh, Kashmiri, Kalwa and Mamdesh were sitting on the buffalo cart, as they reached near the field of Tirmal, Kalwa pulled down his father from the cart and assaulted him with a knife and Darati. Kashmiri and Mamdesh raised alarm. He and Rajpal also reached at the place of occurrence. Kalwa left Darati and knife at the place of occurrence and ran away. Atar Singh succumbed to his injuries on the spot.
9. P.W. 3 Dr. Rajeev Lochan Gupta had conducted the post mortem on the deadbody of Atar Singh.
10. The Sessions Judge relying upon the evidence of the prosecution witnesses convicted and sentenced the appellant, as aforesaid.
11. We have heard Shri Manish Tewari, Amicus Curie, for the appellant and Shri A.K. Dwivedi, learned A.G.A. for the state.
12. The eyewitness account in this case has been furnished by P.W. 1 Kashmiri Devi and P. W.2 Rajendra.
13. We have carefully examined the testimony of P.W. 1 Kashmiri Devi She is mother of the appellant and wife of the deceased. She is the informant of the case. She stated that, on the date of occurrence, she was going alongwith her husband, son Kalwa and daughter Mamdesh. There used to be a constant fight between Kalwa and his father. Kalwa wanted that his father should settle his marriage or give money so that he could arrange his marriage. Due to this reason, on the date of occurrence, a fight had taken place between them and he also abused his father. Same day, when they were going to bring fodder Kalwa assaulted his lather. She lodged the report at the police station. The version of the F.I.R. finds corroboration from the post mortem report of the deceased. P.W. 2 had supported the time and place of occurrence and also the involvement of the appellant in the crime. In the cross examination he stated that he had not seen the occurrence. He had not seen Kalwa dragging his father from the buffalo cart. He had not seen Kalwa and when he reached at the place of occurrence Atar Singh was already dead. A buffalo cart was standing there and the dead body was lying 10 - 12 steps away. His testimony supports the prosecution case with regard to time and place of occurrence.
14. The testimony of P.W. 1 Smt Kashmiri Devi inspires full confidence. She is the wife of the deceased and mother of the appellant. It is not expected for a mother to falsely implicate her son especially, in the circumstances of this case, where her one son was already murdered and she lost her husband in this occurrence. It is a broad day light occurrence and there can not be any doubt about the identity of the accused. A prompt report was lodged in this case. The police after reaching the place of occurrence prepared the inquest report, recovered blood stained and plain earth recovered blood stained Darati and knife and prepared its recovery memos. The police after investigation found the allegation of the report as correct and submitted charge sheet against the appellant. The defence has also accepted the genuineness of the police report etc., therefore, the investigating officer and other police personnel have not been examined.
15. Learned counsel for the appellant has challenged the presence of P.W. 1 Smt. Kashmiri Devi on the spot. It is submitted by learned counsel that according to the version given in the F.I.R. deceased was assaulted by Darati but at the place of occurrence one knife is also recovered which was blood stained and the presence of knife is not explained by the prosecution.
16. We have considered the submission of the counsel for the appellant. The occurrence in this case has taken place in broad day light. The informant had described the manner of assault and in the opinion of the doctor the injuries suffered by the deceased can be caused by Darati and the occurrence had taken place at the time as alleged by the prosecution. If the investigating officer found a knife at the place of occurrence, it is quite natural because according to the prosecution case the deceased and the informant alongwith the accused were going to collect fodder from the field and these are the instruments which are carried by the villagers for such work. If the knife was recovered from the place of occurrence it cannot be said that eye witness was not present at the alleged time. The post mortem examination report also suggest that the injuries suffered by the deceased are of Darati which according to the prosecution was the weapon of the crime The time of occurrence is also supported by the testimony of P.W. 2 who had reached at the time of occurrence.
17. Learned counsel for the appellant further submitted that the appellant has been falsely implicated in this case because there was illicit relations of his mother and his two sisters with her brother-in-law. This submission of the counsel for the appellant can be rejected only on the ground that this was not suggested to any of the witnesses nor stated by the accused in his statement under Section 313 Cr P C. This was mentioned for the first time in his memo of appeal. This is only an after thought and can not be accepted. The appellant has taken contradictory stand at every stage. There was no suggestion for any reason for false implication during the cross examination of any witness. In his statement under Section 313 Cr. P.C. he stated that he and his father were going to cut Newar, Brahm, Rajendra, Rajpal and Romal were fighting with him, they wanted to kill him and he ran away from there and they committed the murder of his father. Therefore, the reason for false implication mentioned in the memo of appeal can not be accepted and is rejected. P.W. 1 Smt Kashmiri Devi is real mother of the appellant and there is no suggestion as to why she is falsely implicating him in this case. Last submission of learned counsel for the appellant is that Sessions Judge was not justified in imposing the death penalty in the facts and circumstances of the present case. The order of conviction was pronounced on 28.9.2004 by the learned trial judge. On the same day, learned Judge immediately proceeded to hear oral submission of the counsel for the appellant Kalwa on the question of sentence. Thereafter taking into consideration only the aggravating circumstances the learned judge has awarded the extreme penalty of death. It is thus crystal clear that learned Sessions Judge has not acted in compliance of the provisions of Section 235(2) Cr.P.C. as the learned Sessions Judge merely heard oral submission of the defence counsel on the question of sentence without giving him any opportunity as envisaged in Section 235(2) Cr.P.C. which in our opinion has greatly prejudiced the appellant as he was deprived of a valuable right conferred upon him in law.
18. This is a serious question for consideration that whether imposition of death penalty to appellant Kalwa in the facts and circumstances of case is justified?
19. Under the old Code of Criminal Procedure ample discretion was given to courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in an exceptional case and that too after advancing special reasons for making a departure from the general rule. The new Code of 1973 has entirely reversed the approach. A sentence of imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 S.C. 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in the rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
20. Considering the aggravating and mitigating circumstances we are of the opinion that in the facts and circumstances of the case, this case does not fall within the category of 'rarest of rare case' and it can not be said that imposition of lesser sentence of life term altogether foreclosed.
21. For the reasons stated above, we uphold the conviction of the appellant under Section 302 I.P.C. and the sentence of death imposed by the trial court on the appellant Kalwa is converted to imprisonment for life. The appellant is in jail and he shall be kept there to serve out his sentence as modified by this court. The appeal is dismissed.
22. The reference for confirmation of death sentence of appellant Kalwa is hereby rejected.