IMPORTANT POINT
Although conviction of appellants cannot be sustained u/s 27(3) of Arms Act, 1959 and it can be sustained only under Sections 302/34 IPC but they are not liable for extreme penalty of death as their case is not "rarest of the rare" type and thus they are liable to only life imprisonment. With these modifications their appeal is liable to be dismissed as laid down in this judgment.

Headnote:(i) Arms Act, 1959-Section 27(3) r/w 7 and 2(1)(i)-Offence of using prohibited Arms or prohibited Ammunition-Army Rules, 1962-Rule 3 Schedule 1-Categories of Arms and Ammunition-Definition of Prohibited Arms and Ammunition in Section 2(1)(i)-Use of 9 mm pistol and .38 bore imported revolver-To bring them in prohibited arms, notification required in official gazette-Instead of "note" in Administrative order-Whether sufficient? (No) - Appellants committed murder by use of said pistol and revolver-Charged u/s 27(3) Arms Act-Convicted and sentenced-Whether sustainable in law? (No)-Words and Phrases "Note" "Notification" "Administrative Order".
       Held : Mr. Ranjit Kumar vis-a-vis the note had a two pronged attack on the score : On the first count, it has been contended that the note pertaining to the 9 mm pistol and .38 bore imported revolver stands out to be prohibited for the purposes of importation only, as such the general definition as regards the prohibited weapons would not in any way thus stand attracted and hence the note to be treated as an instruction and not a notification, thus does not authorise a punishment under Section 27(3) of the Arms Act. We find, however, that there is some justification in such a contention but the second count is rather important inasmuch as the requirement of the Statute is the issuance of a notification. Notification in common English acceptation mean and imply a formal announcement of a legally relevant fact and in the event of a Statute speaking of a Notification being published in the Official Gazette, the same cannot but mean a Notification published by the authority of law in the Official Gazette. It is on formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the Statute then in that event in accordance therewith. (Para 18)
       On the wake of the aforesaid, question of there being any notification even in the guise of an administrative order does not and cannot arise. The requirement of the Statute is sacrosanct and since the issue shall have to be dealt with utmost care and caution, without the issuance of a notification question of a conviction under Section 27(3) of the Arms Act would not arise. We are thus unable to record our concurrence with the submissions of the State that the administrative instructions ought to be treated as a notification - the same cannot be sustained for reasons noticed hereinbefore and by reason of the stringency of the provision as laid down in Section 27(3), we do find some justification in the criticism of the judgment of the High Court as regards the acceptability of the administrative note. 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. (Paras 20 and 21)
       (ii) Death Penalty-Indian Penal Code, 1860-Sections 302/34-Arms Act-Section 27(3)-Conviction of appellants under-Death penalty imposed-Confirmed by High Court stating it to be a rarest of the rare case on ordinary reasons and not giving any special reasons as required u/s 354(3) of Cr.P.C. 1973-Whether death penalty is sustainable, more so, when conviction u/s 27(3) Arms Act was not sustainable? (No)-Sentence of death penalty altered to life imprisonment-Case Law discussed.
       Held : In paragraph 83 of the judgment, the High Court recorded as below :
       "Deceased Harish Bhatia was only trying to recover legitimate dues of the brother-in-law P.W.6 Rajesh by persuasion and requests. He was a respectable person not involved in any crimes. When the incident occurred he was totally defenceless. He was shot at in a most brutal manner. Depravity of the accused is evident from the way in which they fired at the deceased by going to his door steps when he was unarmed. We have no manner of doubt that this is one of the rarest of rare cases which warrant imposition of death penalty."
       This, however, in our view, does not satisfy the statutory requirement as noticed hereinbefore since the same cannot be termed to be a special reason for imposition of such a penalty. Gunshot injuries were caused and at that point of time the deceased was unarmed and was taken aback as to the whole situation - in every incidence of murder brutality is involved. It is not as that what we find on the factual score in Jai Kumar (supra). Brutality, obviously would be an existing factor but how the same did take place is the relevant and necessary material to be considered. In Jai Kumar (supra) the accused was trying to commit rape on his brother s wife and having failed to achieve the object committed a brutal murder by severing her head from the body and hanging her head on the tree. The accused further committed a murder of the 8 years old daughter of deceased sister-in-law who had witnessed the incident and the facts establish the depravity and criminality of the accused in no uncertain terms - that has been the factual finding in Jai Kumar (supra) and the Court confirmed the sentence of death : Is it with the same brutality or can the acts be termed to be similar in nature so far as brutality is concerned, the answer cannot but be in the negative. (Paras 22 and 23)
       Ours being a civilised society - a tooth for a tooth and an eye for an eye ought not to be the criterion and as such the question of there being acting under any haste in regard to the capital punishment would not arise : Rather our jurisprudence speaks of the factum of the law courts being slow in that direction and it is in that perspective a reasonable proportion has to be maintained between the heinousness of the crime and the punishment. While it is true punishment disproportionately severe ought not to be passed but that does not even clothe the law courts, however, with an option to award the sentence which would be manifestly inadequate having due regard to the nature of offence since an inadequate sentence would not subserve the cause of justice to the society. In the contextual facts, we do not find the brutality of such a nature so as to exercise the discretion of passing an order of capital punishment - undoubtedly brutality is involved but that brutality by itself will not bring it within the ambit of the rarest of the rare cases. On the wake of the aforesaid and having regard to the nature of the offence and the methodology adopted, we are convinced that the punishment awarded to the appellants herein is in excess of the requirement of the situation and as such while recording our concurrence with the finding as recorded by the High Court in the judgment impugned, as regards the guilt of the accused under Section 302 read with Section 34 of the Indian Penal Code, we are inclined to modify the sentence of death to that of life imprisonment under Section 302 read with Section 34 of the Indian Penal Code as against the appellants herein, and it is ordered accordingly: Except however, as above, this appeal fails and is dismissed. (Para 24)

JUDGMENT

Banerjee, J.-On a reference to the High Court by the Principal Judge of the Sessions Court at Bombay for confirmation of an order of death sentence passed against the appellants herein in Sessions Case No. 477 of 1996, the High Court recorded its finding in the affirmative to the order of conviction and sentence passed by the learned Sessions Judge. It is this order of confirmation which is before this Court presently under consideration.

2. Significantly, accused Nos. 4 to 10 are absconding and the matter was dealt with thus against accused Nos. 1, 2 and 3. Since the matter has been argued before this Court in rather great a length, we think it fit and proper to note the charges so framed in extenso at this juncture and before entering on to the arena of merits. The charges read as below:

"Firstly-That you No.1 along with Nos.2 and 3 above named and absconding accused Nos. 4 to 10 above named on the aforesaid date, time and place and prior to it agreed to murder Harish Vallabhdas Bhatia hatched a criminal conspiracy to that effect and in pursuant to the agreement you No. 2 and 3 above named, did commit murder of said Harish Vallabhdas Bhatia by means of pistol and revolver and inflicted such bullet injuries on his person as were sufficient in ordinary course of nature to cause his death and in fact caused his death and thereby you all committed an offence punishable u/s 120-B r/w 302 of I.P.C. and within my cognizance.

Secondly-Alternatively you Nos. 2 and 3 above named on or about 13th June, 1995 at 20.20 hrs., on the ground floor of Lalchand Bungalow at Shankar Lane, Kandivali (W), Mumbai in furtherance of common intention of you both did commit murder by causing death of Harish Vallabhdas Bhatia, by means of pistol and revolver causing bullet injury on the person of said Harish Vallabhdas Bhatia, which were sufficient in the ordinary course of nature to cause his death and in fact caused his death and thereby committed an offence punishable u/s 302 r/w 34 of I.P.C. and within my cognizance.

Thirdly-That you Nos.2 and 3 above named, on the aforesaid date, time and place, did possess, carried and used the fire arms to wit committing the murder of deceased Harish Vallabhdas Bhatia by the said fire arms and thereby committed an offence punishable u/s 27(3) of the Arms Act and within my cognizance."

3. The charge thus itself records two counts, namely, on the first count under Section 302 read with Section 34 of IPC and on the second count under Section 27(3) of the Arms Act, 1959. It is at this juncture, however, it would be convenient to advert to the true purport of the punishment of death and the social ramifications therefor. On this score we, however, deem it expedient to note an earlier decision of this Court in the case of Jai Kumar v. State of M.P. (1999 (5) SCC 1) (in which one of us was a party: U.C. Banerjee, J). In Jai Kumar (supra) this Court while considering the above stated as below :

"Section 302 of the Indian Penal Code authorises the Court to punish the offender of murder with death or imprisonment for life - the statute therefore has provided a discretion to the court to sentence the offender either with death or with imprisonment for life: obviously, a serious decision and a heavy burden imposed on the Court - This discretion conferred, however, shall have to be thus exercised in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in no uncertain terms laid down that the award of death sentence though within the ambit of jurisdiction of the courts, but that does not clothe the courts to exercise the same in a manner indiscriminate. This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilised society - a tooth for a tooth and eye for an e

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2002 Supreme(SC) 1104

Cases Referred (4)