{"id":249407,"date":"2002-11-12T00:00:00","date_gmt":"2002-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhash-ramkumar-bind-vakil-anr-vs-state-of-maharashtra-on-12-november-2002"},"modified":"2015-09-17T15:31:31","modified_gmt":"2015-09-17T10:01:31","slug":"subhash-ramkumar-bind-vakil-anr-vs-state-of-maharashtra-on-12-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhash-ramkumar-bind-vakil-anr-vs-state-of-maharashtra-on-12-november-2002","title":{"rendered":"Subhash Ramkumar Bind @ Vakil & Anr vs State Of Maharashtra on 12 November, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Subhash Ramkumar Bind @ Vakil & Anr vs State Of Maharashtra on 12 November, 2002<\/div>\n
Author: Banerjee<\/div>\n
Bench: Umesh C. Banerjee, B.N. Agrawal.<\/div>\n
           CASE NO.:\nAppeal (crl.)  18 of 2002\n\nPETITIONER:\nSubhash Ramkumar Bind @ Vakil & Anr.\n\nRESPONDENT:\nState of Maharashtra\n\nDATE OF JUDGMENT: 12\/11\/2002\n\nBENCH:\nUmesh C. Banerjee & B.N. Agrawal.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
Banerjee, J.\n<\/p>\n
On a reference to the High Court by the Principal Judge of the
\nSessions Court at Bombay for confirmation of an order of death
\nsentence passed against the appellants herein in Sessions Case
\nNo.477 of 1996, the High Court recorded its finding in the
\naffirmative to the order of conviction and sentence passed by the
\nlearned Sessions Judge.\t  It is this order of confirmation which is
\nbefore this Court presently under consideration.
\n   Significantly, accused Nos.4 to 10 are absconding and the
\nmatter was dealt with thus against accused Nos.1, 2 and 3.   Since
\nthe matter has been argued before this Court in rather great a
\nlength, we think it fit and proper to note the charges so framed in
\nextenso at this juncture and before entering on to the arena of
\nmerits.\t  The charges read as below :\n<\/p>\n
“Firstly That you No.1 along with Nos.2 and 3<\/span>
\nabove named and absconding accused Nos.4 to 10<\/span><\/p>\n
above named on the aforesaid date, time and place
\nand prior to it agreed to murder Harish Vallabhdas
\nBhatia hatched a criminal conspiracy to that effect
\nand in pursuant to the agreement you No.2 and 3<\/span>
\nabove named, did commit murder of said Harish
\nVallabhdas Bhatia by means of pistol and revolver
\nand inflicted such bullet injuries on his person as
\nwere sufficient in ordinary course of nature to
\ncause his death and in fact caused his death and
\nthereby you all committed an offence punishable
\nu\/s 120-B r\/w 302 of I.P.C<\/a>. and within my
\ncognizance.\n<\/p>\n
Secondly –  Alternatively you Nos. 2 and 3 above
\nnamed on or about 13th June, 1995 at 20.20 hrs., on
\nthe ground floor of Lalchand Bungalow at Shankar
\nLane, Kandivali (W), Mumbai in furtherance of
\ncommon intention of you both did commit murder
\nby causing death of Harish Vallabhdas Bhatia, by
\nmeans of pistol and revolver causing bullet injury
\non the person of said Harish Vallabhdas Bhatia,
\nwhich were sufficient in the ordinary course of
\nnature to cause his death and in fact caused his
\ndeath and thereby committed an offence
\npunishable u\/s 302 r\/w 34 of I.P.C<\/a>. and within my
\ncognizance.\n<\/p>\n
Thirdly\t That you Nos.2 and 3 above named, on
\nthe aforesaid date, time and place, did possess,
\ncarried and used the fire arms to wit committing
\nthe murder of deceased Harish Vallabhdas Bhatia
\nby the said fire arms and thereby committed an
\noffence punishable u\/s 27(3) of the Arms Act<\/a> and
\nwithin my cognizance.”\n<\/p>\n
The charge thus itself records two counts, namely, on the first
\ncount under Section 302<\/a> read with Section 34<\/a> of IPC and on the
\nsecond count under Section 27(3)<\/a> of the Arms Act, 1959.\t  It is at
\nthis juncture, however, it would be convenient to advert to the true
\npurport of the punishment of death and the social ramifications
\ntherefor.  On this score we, however,  deem it expedient to note an
\nearlier decision of this Court in the case of  Jai Kumar v. State of
\nM.P<\/a>. (1999 (5) SCC 1) (in which one of us was a party : U.C.
\nBanerjee, J).\tIn Jai Kumar (supra) this Court while considering the
\nabove stated as below :\n<\/p>\n
\t“Section 302<\/a> of the Indian Penal Code  authorises
\nthe Court to punish the offender of  murder with death
\nor imprisonment for life  the statute therefore has
\nprovided  a discretion\tto the court to sentence the
\noffender either with death or with imprisonment for life:
\nobviously, a serious decision and a heavy burden
\nimposed on  the Court  This discretion conferred,
\nhowever, shall have  to be  thus exercised in a manner
\nand in consonance with the concept of law so as to sub-
\nserve the ends of justice and it is on this aspect of the
\nmatter that in a long catena of cases this Court in no
\nuncertain terms laid down that the award of death
\nsentence  though within the ambit of jurisdiction of the
\ncourts, but that does not clothe  the  courts to exercise
\nthe same in a manner indiscriminate. This Court has
\nbeen candid enough to record on more occasions than
\none that it is only in the rarest of the rare cases that this
\ndiscretion as regards  capital punishment ought to be
\nexercised.  Ours is a civilised society\t a tooth for a
\ntooth and eye for an eye ought not to be the criterion; the
\ncivilisation and the due process of law coupled with
\nsocial order ought not to permit us to be  hasty in regard
\nto the award of capital punishment and as a matter of
\nfact the Courts ought to be  rather slow  in that direction.\n<\/p>\n
\t Justice is supreme and justice ought to be
\nbeneficial for the society so that the society is placed in
\na  better off situation. Law courts exist for the society
\nand ought to rise up to the occasion to do the needful in
\nthe matter, and as such ought to act in a manner so as to
\nsub-serve the basic requirement of the society.\t It is a
\nrequirement of the society and\tthe law must respond to
\nits need.  The greatest virtue of law is its flexibility and
\nits adaptability, it must change from time to time so that
\nit answers the cry of the people, the need of the hour and
\nthe order of the day.  In the present day society, crime is
\nnow considered a social problem and by reason
\ntherefore a tremendous change even conceptually is
\nbeing seen in the legal horizon so far as the punishment
\nis concerned.\n<\/p>\n
\tOne school of thought on this score propagates
\nthat the function of the law court is that of a social
\nreformer and as such in its endeavour to act as such,
\nquestion of deterring punishment would not arise  since
\nthe society would otherwise be further prone to such
\nviolent\t acts or activities by reason of the fact that with
\nthe advancement of the age the mental frame of boys of
\ntender age also go on changing and in the event of any
\narrogance being developed or a sense of revenge
\ncreeping into  the society,  the society would perish to
\nthe detriment of its people.  The other school, however,
\nexpressly recorded and rather emphatically that unless
\nthe severest of the severe punishments are inflicted on
\nan offender (obviously depending upon the nature of the
\ncrime) the society would perish.\n<\/p>\n
\tThe other school professes that since one has taken
\nthe life of another that does not mean that his life shall
\nhave to be taken but during the trial if it transpires the
\nmethod and manner or the nature of the activities which
\nhave resulted in the elimination of a human being from
\nthis world, there should not be any laxity on the part of
\nthe law courts, otherwise people will and in turn the
\nsociety will be engulfed in a false sense of  security of
\nlife in the event of there being the most heinous crime of
\nthe earth.\n<\/p>\n
The law courts as a matter of fact have been rather
\nconsistent in the approach that a reasonable proportion
\nhas to be maintained between the seriousness of the
\ncrime and the punishment.  While it is true that a
\nsentence disproportionately severe, ought not to be
\npassed but that does not even clothe the law courts with
\nan option to award the sentence which would be
\nmanifestly inadequate having due regard to the nature of
\nthe offence since an inadequate sentence would fail to
\nproduce a deterrent effect on the society at large.
\nPunishments are awarded not because of the fact that it
\nhas to be an eye for an eye or a tooth for tooth, rather
\nhaving its due impact on the society: while undue
\nharshness is not required but inadequate punishment
\nmay lead to sufferance of the community at large.”\n<\/p>\n
Turning attention on to the second count, to wit, the charge
\nunder Section 27(3)<\/a> of the Arms Act, 1959 first, and for the
\npurposes of proper appreciation of the submissions on this count as
\nwell, we deem it fit to note the provisions as provided in the Statute
\nand the same reads as below :\n<\/p>\n
“27.   Punishment for using arms, etc.\t(1)
\n(2)\t.\n<\/p>\n
(3)\tWhoever uses any prohibited arms or prohibited
\nammunition or does any act in contravention of section
\n7<\/a> and such use or act results in the death of any other
\nperson, shall be punishable with death.”\n<\/p>\n
\t  Before, however, detailing out the applicability of Section
\n27(3)<\/a> of the Act, we do feel it expedient to advert to the factual
\nbackdrop of the matter presently before us.  On the contextual facts
\nit appears that on 13th June, 1995 at about eight o’clock in the
\nevening, the deceased, his mother, father, maid Pramila and Anjana
\nwere watching Television in the hall.  Shortly, thereafter, however,
\nsomebody pressed the doorbell of the house and\t  Pramila, the
\nmaid, went to see as to who was at the door.   As the maid was
\ncoming back, Anjana also went to gallery to see who was at the
\ndoor whereupon she saw that one person was standing on the step
\nnear the grill and the other person was standing below the step.
\nShe asked the person standing on the step as to who he was.   He
\ngave his name as Arvind.   She asked him as to what work he had.
\nHe told her that he was a friend of Harishbhai and that he had some
\nwork with Harishbhai.\tAt that time Harish on being told by
\nPramila came to the passage.   He went to the grill of the gallery
\nand he asked the person standing on the step as to who he was.
\nThat person was talking in a very low voice.   In order to ascertain
\nas to what he was talking Harish leaned on the grill and that person
\nimmediately put his hand inside the grill and caught hold of the
\nkurta of Harish just to give  a violent jerk.  He then put his second
\nhand inside the grill.\t At that time Anjana saw that he was holding
\na pistol in his right hand and pointed it at the abdomen of Harish
\nand started firing.   At that time the second person climbed on the
\ngrill.\t He also had a pistol in his hand.   He started firing on the
\nhead of Harish and Harish collapsed thereafter.\t  This collapse of
\nHarish dumb-founded Anjana by reason wherefor it took about a
\nminute or so before Anjana started shouting and ran inside.   She
\nwent to the western balcony to see them where she heard the sound
\nof  high acceleration of a vehicle in which accused Nos.2 and 3 fled
\nfrom the place of occurrence.\tHarish was then shifted to Bhagwati
\nHospital, where however he was pronounced dead.\t  Complaint of
\nAnjana came to be recorded immediately thereafter i.e. on the same
\nday at about 10 p.m.
\n\tThe records depict that from the scene of offence empty
\ncartridges and bullets were recovered.\t Panchanama was drawn up
\nand the empty cartridges, bullets and two pieces of bullets
\nrecovered from the stretcher on which the deceased was kept were
\nsent to the Chemical Analyser by the Police.
\n\tThe further factual score depicts that on 3.7.1995 accused
\nNos.2 and 3 were arrested in LAC No.49 of 1995 at Goregaon and
\nvarious arms and ammunitions were recovered from them under a
\npanchanama.   Amongst them were one 9 mm pistol and one .38
\nbore imported revolver.\t  On 14.8.1995 the custody of the accused
\nwas obtained in DCB CR No.177 of 1995 and on 15.8.1995 judicial
\ncustody of the accused was obtained and it is  on 16.8.1995
\nidentification parade of accused Nos.2 and 3 was held in which
\nP.W.1 Anjana and P.W.3 Pramila identified the accused.\n<\/p>\n
\tAs regards the injuries suffered by the deceased, PW.8 Dr.
\nShinde conducted the post-mortem examination and had the
\nfollowing to state :\n<\/p>\n
\t“On my external examination I found the
\nfollowing injuries on the person were noted by me
\nin Column No.17 of my P.M. Reprot.\n<\/p>\n
(1)\tFire arm wound of Entry on left eye brow
\nmedical and (if side forehead front) 0-8 cm.
\nDiameter with 0-5 c.m. semicircular abraded collar
\non upper and outer aspect, inverted margins.   No
\nTattooing or singeing of hair, dried blood\/clots
\nwithin circular shape.\n<\/p>\n
(2)\tFire arm wound of Entry on right side chest
\nfront, at the level of right nipple, 9-5 cm. from
\nright nipple, 3-2 cm.  from midline, 0-8 cm.
\nDiameter with 0-1 cm.  Abraded collar encircling,
\ninverted margins.   No tattooing\/singeing of hair,
\ndried blood\/clots within, circular shape.\n<\/p>\n
(3)\tFire arm wound of entry on left side chest
\nfront 3-5 cm from midline, 10-0 c.m. below and
\nmedical to left nipple, 0-8 cm.\t Diameter with 0-1
\ncm.  Abraded collar encircling inverted margins.
\nNo tattooing, singeing of hair, dried blood\/clots
\nwithin circular shape.\n<\/p>\n
(4)\tFire arm wound of entry on right side
\nabdomen, epigastric area, 1-5 cm.   From midline
\n2-0 cm.\t Below and lateral to right costal border.
\n9-8 cm. Diameter with one cm.  Semicircular
\nabraded collar on upper aspect, inverted margins.
\nNo tattooing, singeing of hair, dried blood\/elects
\nwithin, circular shape.\n<\/p>\n
(5)\tFire arm wound of entry on the right side
\nchest front, two cm.  Lateral to anterior armpit
\nline, 20-0 c.m. below right exilla\/152 c.m.  Below
\nand lateral to right nipple.   0-8 cm.\tDiameter with
\n1-4 cm.\t Semicircular abraded singeing of hair,
\ndried blood\/clots within circular shape.\n<\/p>\n
(6)\tFire arm wound of entry on the left side
\nabdomen front, pelvic\/fossa, 15-1 cm.  From
\nmidline, 16-0 cm. Below and lateral to umbillicus
\n0-8 cm.\t  Diameter with 0-2 cm.\t Semicircular
\nabraded collar on medical aspect (medically)
\ninverted margins.   No tattooing\/singeing of hair,
\ndried blood\/ clots within circular shape.\n<\/p>\n
(7)\tFire arm wound of entry on the left side
\nabdomen front, iliac fossa, 17-2 (17-2 cm) from
\nmidline, 0-8 cm.  Diameter with 0-5 cm.\n<\/p>\n
Semicircular or singeing of hair; dried blood\/clots
\nwithin circular shape.\n<\/p>\n
(8)\tFire arm wound of exit on the left side chest
\nback, 31-0 cm. Below neck throat junction 3.5 cm.
\nFrom midline, 1.1 cm. x 1.10 cm.   Everted
\nmargins, blood oozes out, oval shape.\n<\/p>\n
(9)\tFire arm wound of exit on the left side trunk
\nback 41-0 cm.  Below left shoulder belt, 14.0 cm.
\nFrom midline, 2.0 cm. x 1.4 cm.\t Everted margins
\noval shape.\n<\/p>\n
(10)\tFire arm wound of exit on the left side trunk
\nback, 6-1 cm. Below and medial to ext. injury No.
\n(9) (Nine) 13.5 cm.   From midline, 2-0 cm. x 1.6
\ncm.  Everted margins, oval shape.\n<\/p>\n
(11)\tGrazed abrasion on the left side trunk back
\nextending from lower border of ext. injury No.10
\n(Ten) to ext. injury No.9 (Nine) to left side chest
\nback, length 22.0 cm.  Breadth one c.m. Red
\ncolour tapering towards chest of breadth 0.5 cm.\n<\/p>\n
(12)\tFire arm wound of entry on the left thigh
\nlower 1\/3 medially, 8.0 cm.  Above left knee joint,
\n0-8 cm.\t Diameter with 0-5 cm. Semi circular
\nabraded collar on lower and front aspect, inverted
\nmargins.  No tattooing or singeing of hair, dried
\nblood\/clots within circular shape.\n<\/p>\n
(13)\tFire arm wound of exit on the left thigh
\nupper 1\/3 back, midline, 2.0 cm. x 1.4 cm.\n<\/p>\n
Everted margins, oval shaped, blood oozes out.
\nAlso multiple puncture wounds within everted
\nirregular margins, extending from left buttock
\nlower part to left thigh middle 1\/3 back of size
\nvarying from 0.8 cm. x 0.5 cm. To x 0.3 cm. x 0.2
\ncm. with a copper piece retrieved from left buttock
\nlower medial part and four small lead pieces
\nretrieved from left thigh skin underneath.\n<\/p>\n
(14)\tMultiple puncture wounds with inverted
\nirregular margins, over right thigh upper 1\/3 to
\nmiddle 1\/3 on back, of size varying from 0.4 cm. x
\n0.3 cm. to 0.2 cm. x 0.1 cm. with three small lead
\npieces retrieved from right thigh skin underneath.\n<\/p>\n
(15)\tFire arm wound of entry on the right lower
\narm (Forearm) middle 1\/3 back (level of little
\nfinger) 0.8 cm. Diameter with 0.5 cm. Semicircular
\nabraded collar on lower aspect (towards hand),
\ninverted margins.  No tattooing or singeing of hair,
\ndried blood\/clots within circular shape.\n<\/p>\n
(16)\tFire arm wound of exit on the right lower
\narm (forearm) front 8.0 cm. (Eight cm.) below
\nright cabital fossa, 1.3 cm. x 1.1 cm. Oval shape
\neverted margins, blood oozes out.\n<\/p>\n
(17)\tAbrassion red colour on the left lower leg
\nbelow knee, middle 1.3, front 1.4 cm. x 1.3 cm.\n<\/p>\n
\t    On the internal examination the doctor found the
\nfollowing internal injuries :\n<\/p>\n
(1)\tCorresponding with ext. injury No. One (1)
\nPerforated skin and muscles underneath, passes
\nthrough left nose to right side nose with perforated
\nnasal septum, perforated and passes through tight
\nmaxillarly sinus to patate right side perforated.
\nPasses and perforated right side tongue fossa and
\npharyngeal fossa muscles to right side neck
\nmuscles laterally with injured and perforated right
\ncarotid sheath of cervical fourth and fifty vertebra
\nintervertebral disc. with its contains i.e. right
\ncommon carotid artery, right internal jugular veins,
\nnerve accompanying with haemorrhage into
\nadjacent muscles of neck, passes to right side chest
\nback muscles with perforated 1st inter-costal space
\non right side chest back near vertebra, perforated
\nright lung upper lobe.\t Haemorrhage along
\npassage of bullet.   A copper jacketed lead long
\n(slender) bullet retrieved from right side chest
\ncavity in blood\/clots.\n<\/p>\n
(2)\tCorresponding with ext. injury No.2 (2) :-
\nPerforated skin and muscle underneath with
\nhaematoma underneath.\tPerforated 4th rib (fourth
\nrib) costal cartilage, perforated pericardium,
\nperforated right ventricle through and through,
\nperforated pericardium perforated right pleura,
\nperforated right limb, lower lobe through and
\nthrough, perforated right pleura, perforated 11th rib
\nwith fracture 11th rib right side chest back.
\nPenetrate right side chest back muscles.\n<\/p>\n
Haemorrhage along passage of bullet.   A copper
\njacketed lead small bullet retrieved from right side
\nchest back muscles at 11th rib level with
\nhaematoma and haemorrhage wound.\n<\/p>\n
(3)\tCorresponding with Ext. injury No.three (3).
\nPerforated skin and muscles underneath with
\nhaematoma underneath.  Perforated 7th rib costal
\ncartilage at left side chest front, perforated
\ndiaphragm, perforated stomach through and
\nthrough upper part, perforated diaphragm,
\nperforated 11th inter-costal space on left side chest.
\nPerforated left side chest back muscles with exit
\nwound corresponding to ext. injury no. eight (8).
\nHaemorrhage along passage of bullet.\n<\/p>\n
(4)\tCorresponding with ext. Injury No.four (4)
\nPerforated right side abdomen skin and muscles
\nunderneath with haemotoma underneath.\n<\/p>\n
Perforated peritoneum, perforated ilea coils at two
\nplaces through and through with mesentery with its
\nvessels and nerves.  Perforated peritoneum,
\nperforated bladder through and through penetrate
\nand passes right pelvic floor muscles to buttock
\nmuscles.  Haemorrhage along passage of bullet.
\nA copper jacketed lead small bullet retrieved from
\nright buttock muscles lower medial quadrant with
\nhaemorrhage and haematoma around.\n<\/p>\n
(5)\tCorresponding with ext. Injury No.five (5)
\nPerforated right side chest laterally skin and
\nmuscles underneath with haematoma underneath.
\nPerforated 9th inter-costal space on right side chest
\nlaterally, perforated diaphragm, perforated right
\nlobe of liver through and through.   Perforated
\ndiaphragm, perforated 11th inter-costal space on
\nright side chest back, penetrate right side chest
\nback muscles.\tHaemorrhage along passage of
\nbullet.\t  A copper jacketed lead along (slender)
\nbullet retrieved from right side chest back muscles
\nat 12th rib level with haemorrhage and haematoma
\naround.\n<\/p>\n
(6)\tCorresponding with Ext. Injury No.Six (6)
\nExt. Injury No.Six Entry passes through muscles.\n<\/p>\n
Ext. Injury No. Nine exist Haemorrhage along
\npassage.\n<\/p>\n
(7)\tCorresponding with Ext. Injury No. twelve
\n(12)<\/span><\/p>\n
Ext. Injury No.Twelve passes left thigh lower
\nentry.\n<\/p>\n
Ext. injury No. thirteen<\/p>\n
Exist\t1\/3 medial muscles to left thigh back
\nupper 1\/3.  Muscles with injured and
\nperforated left femoral artery and vein
\nunderneath. Haemorrhage along
\npassage of bullet.\n<\/p>\n
(8)\tCorresponding with Ext. Injury No. fifteen
\n(15)<\/span><\/p>\n
Ext. Injury No. fifteen passes through underneath.\n<\/p>\n
Entry: muscles only Haemorrhage<\/p>\n
Ext. Injury No. Sixteen along passage of bullet<\/p>\n
exist.”\n<\/p>\n
\tIt is in this context Ballistic Expert’s Report seems to go a
\nlong way as regards the pistol and revolver recovered from the
\naccused persons’ possession (marked with article Nos.19 and 20
\nrespectively).\t The Report indicated that the bullets and pieces of
\nbullets retrieved from the body of the deceased on 14.6.1995 were
\nfired from 9 mm pistol and  .38 caliber revolver.   Bullets and
\nempties seized under panchanama Exhibit 63 from the scene of
\noffence tallied with  bullets and pieces of bullets retrieved from the
\nbody of the deceased and they were fired from 9 mm and .38
\nrevolver.   Bullets retrieved from the body of the deceased and
\nthose bullets and empties recovered from the scene of offence were
\nfired from articles 19 and 20.\n<\/p>\n
\tAt this juncture, however, it be noticed that the submissions in
\nsupport of the appeal can thus be summarised under two specific
\ncounts, namely, (i) submissions pertaining to the Arms Act<\/a>, 1959;
\nand (ii) under the provisions of Indian Penal Code<\/a>.   Admittedly,
\nthe provisions, both under the Arms Act<\/a> as also under the Indian
\nPenal Code<\/a> prescribe death sentence.   It would thus be convenient
\nto deal with the above noted two several aspects in two distinct
\nmanners since one is strictly statutory and technical in nature and
\nthe other is to be borne out on the basis of the facts and
\ncircumstances of the matter under consideration.\n<\/p>\n
Re: Arms Act<\/a>, 1959
\nReferring at this stage to Section 27(3)<\/a> of the Arms Act, 1959
\nit appears that the statutory provision provides for a definite
\npunishment for a definite offence :  to wit, user of any prohibited
\narms, which results in the death of another person and in that event
\nthe Statute has been categorical enough to prescribe that user shall
\nbe punishable with death.   There are thus two specific requirements
\nof the Statute in order to bring home the guilt of the accused within
\nthe meaning of Section 27(3)<\/a> :\tthe requirements being\t(a) user of
\na prohibited arm; and (b) resultant death of a person by reason of
\nsuch user.  Incidentally,  prohibited arms as defined under Section 2<\/a>
\n(1) (i)\t of the Arms Act<\/a> means\t–\n<\/p>\n
“(i)\t    firearms so designed or adapted that, if pressure is applied
\nto the trigger, missiles continue to be discharged until
\npressure is removed from the trigger or the magazine
\ncontaining the missiles is empty, or\n<\/p>\n
(ii)\t weapons of any description designed or adapted for the
\ndischarge of any noxious liquid, gas or other such thing,
\nand includes artillery, anti-aircraft and anti-tank firearms and
\nsuch other arms as the Central Government may, by notification in
\nthe Official Gazette, specify to be prohibited arms.”
\nRule 3 of the Arms Rules, 1962 prescribes that for the
\npurposes of the Arms Act<\/a>, 1959 and the Rules, “arms” and
\n“ammunition” shall be of the categories specified in Columns 2 and
\n3 respectively of Schedule 1.\n<\/p>\n
The relevant extract of Schedule 1 stands as under:<\/p>\n
\nSCHEDULE 1\nCategory\t\t\tArms\t\t\t\tAmmunition\n    1\t\t\t   2\t\t\t\t       3<\/span>\n(a)\t\tProhibited arms as defined\t     Prohibited arms as defined\n\t\t  in Section 2(1)<\/a> (i) and other\t    in Section 2(1)(h)<\/a> and such\n\t\tarms as the Central\t\t    other articles as the Central\n\t\tGovernment may, by\t\t    Government may, by\n\t\tNotification in the official\t     Notification in the official\n\t\tGazette specify to be\t\t     Gazette, specify to be\n\t\tprohibited arms.\t\t\t     prohibited ammunition.\n\n(b)\t\tSemi-automatic firearms,\t    Ammunition for arms of\n\t\tother than those included\t    category (b)\n\t\tin categories 1(c) and iii (a)\n\t\tsmooth bore guns having\n\t\tbarrel of less than 20\"\t in\n\t\tlength.\n\n(c)\t\tBlot action or semi-\t\t   Ammunition for fire-arms\n\t\tautomatic fires of 303\" or\t   of category 1(c)\n\t\t7.62 mm.  Bore or any\n\t\tother bore which can\n\t\tchamber and fire service\n\t\tammunition  of 303\" or\n\t\t7.62 m.m. calibre; muskets\n\t\tof .410\" musket ammunition\n\t\tpistols, revolvers or carbines\n\t\tof any bore which can chamber\n\t\t.380\" or .455\" rimmed cartridges\n\t\tor service 9 m.m. or .445\"\n\t\trimless cartridges.\n\n (d)\t\t.\n\t\t.\n\n<\/pre>\n
III\t\tFirearms other those in\t\tAmmunition for fire-arms
\n\t\tcategories I,II and IV,\t\t\tother than those in
\n\t\tnamely:\t\t\t\t\tcategories I,II and IV,
\n\t\t\t\t\t\t\t\tnamely:\n<\/p>\n
\t(a)\tRevolvers and pistols\t\t\tAmmunition for fire-\n<\/p>\n
\t\t\t\t\t\t\t\tarms of category III (a).\n<\/p>\n
\t\t.\t\t.\n<\/p>\n
\t     It is on this score that Mr. Ranjit Kumar has been rather
\nemphatic  that since weapons of offences have been alleged to be a
\n9 mm pistol and a  .38 revolver and since they are not automatically
\ntriggered but use of both these arms would depict that only one shot
\ncan be fired by the pull of trigger and for firing the second shot, the
\ntrigger has to be released first and pulled again, the arms in
\nquestion cannot come within the purview of ‘Prohibited Arms’ as
\ndefined under Section 2(1)(i)<\/a> of the Act of  1959.   It is on this
\nscore the Statement of Objects and Reasons of the Legislation has
\nbeen referred to by Mr. Ranjit Kumar in aid of his submissions.
\nBut before recording such a submission be it noted that the
\nStatement of Objects and Reasons is not otherwise admissible as an
\naid to the construction of a Statute but the same simply assists as to
\nthe necessity of introduction of such a law and since the decision of
\nthis Court in Aswini Kumar Ghosh & Anr. v. Arabinda Bose &
\nAnr<\/a>. (1953 SCR 1), the law seems to be well settled without a
\ncontra note being sounded till now that while construing the clear
\nterms of an Act the Court is not required to ascertain the object of
\nthe enactment.\t We, however, hasten to add that though, in case of
\nan urgent need of the situation by reason wherefor the intent of the
\nlegislature is to be assessed, the  Statements and Objects can be
\nlooked into for the limited purpose of ascertaining the conditions
\nprevailing at the time which prompted or actuated the proposer of
\nthe Bill to introduce the same and the extent of  remedying the
\nexisting evil of the society.\n<\/p>\n
\tBe that as it may apropos the Statement of Objects and
\nReasons and having felt the necessity of considering the same by
\nreason of the factum of introduction of deterrent punishment for
\noffences relating to prohibited arms and ammunitions and to meet
\nthe challenges from anti-national elements, we do feel it expedient
\nto note the same in extenso.\n<\/p>\n
\t“Statement of Objects and Reasons of  Arms
\n(Amendment) Act, 42 of 1988  The Arms Act<\/a>, 1959,
\nhad been amended to provide for enhanced escalating
\nterrorist and anti-national activities.\t  However, it was
\nreported that terrorist and anti-national elements,
\nparticularly in Punjab, had in the recent past acquired
\nautomatic firearms, machine guns of various types,
\nrockets and rocket launchers.\tAlthough the definitions
\nof the expressions “arms”, “ammunitions”, “prohibited
\narms” and “prohibited ammunitions” included in the Act
\nare adequate to cover the aforesaid lethal weapons in the
\nmatter of punishments for offences relating to arms, the
\nAct did not make any distinction between offences
\ninvolving ordinary arms and the more lethal prohibited
\narms and prohibited ammunitions.   Further, while the
\nAct provided for punishment of persons in possession of
\narms and ammunition with intent to use them for any
\nunlawful purpose, it did not provide for any penalties for
\nthe actual use of illegal arms.\t  To overcome these
\ndeficiencies, it was proposed to amend the Act by
\nproviding for deterrent punishment for offences relating
\nto prohibited arms and ammunition and for the illegal
\nuse of firearms and ammunition so as to effectively meet
\nthe challenges from the terrorist and anti-national
\nelements.   Accordingly, the Arms (Amendment)
\nOrdinance, 1988, was promulgated by the President on
\nthe 27th May, 1988.”\n<\/p>\n
\t    The punishment provided stands to be the severe most one
\nand under the general law of the land it is only in the rarest of the
\nrare cases that such a punishment can be inflicted on to an accused.
\nObviously, the intent of the legislature as appears from the
\nStatement of Objects and Reasons cannot possibly be decried by
\nreason of the situation prevalent during the period in question.   In
\nmore than one State of the country it was rather a dismal picture.
\nThe use of prohibited arms and deadly weapons turned out to be a
\nregular feature and the existing state of law was not in a position to
\nsubvert these moves by the anti-national elements and in the event
\nof incorporation in the Statute Book of\t a legislation which stands
\nengrafted therein to protect the society from these unruly elements,
\nit is a bounden obligation of the law Courts to attribute its widest
\npossible amplitude to the words used in the legislature and interpret
\nthe legislation in accordance therewith.   Question of there being a
\nrestrictive meaning to be attributed thus would not arise.   It is on
\nthe basis as noticed above that Mr. Ranjit Kumar’s submission that
\nin fact there was no notification as required by law (vide Category
\nA, Schedule I noticed above), in the absence of which the articles
\nbeing marked 19 and 20 ought to be treated within category ‘C’
\nnoted above and thus cannot be termed to be a prohibited item shall
\nhave to be considered.\n<\/p>\n
Incidentally, there is on record a note in the form of
\ninstructions to all the States.\t  Before delving on to the same the
\nnote is extracted hereinbelow :\n<\/p>\n
“I am directed to say that in accordance with Rule 7(a)\n<\/p>\n
(iii) on the Indian Arms Rules, 1951 the import into
\nIndia of .38 bore Pistols\/ revolvers is prohibited.
\nRepresentations have been received that .38 bore pistols
\nwhich are not in use in the Armed Services may be
\nexcluded from the classification of prohibited bore
\nweapons, import of which is prohibited under the Indian
\nArms Act<\/a>.   Some doubts also been raised as the whether
\n.38 bore Pistols\/Revolvers for this purpose.   The Govt.
\nof India has been advised by their technical experts that
\n.38 or .380 bore pistols (self loaded or automatic Colt)
\nwhich fire .38 Rimles cartridges are not in use in the
\nArmed Services.\t It has accordingly been decided that
\nthese pistols should not be treated as weapons of
\nprohibited bores falling under Rule of the Indian Arms
\nRules<\/p>\n
2.     It has further been decided that the following
\nweapons of prohibited bore, import of which shall not be
\ngranted under Rule 7 of the Indian Arms Rules, namely :\n<\/p>\n
1.\t.380 bore revolver.\n<\/p>\n
2.\t9.65 MM Caliber Revolvers (This should be
\nequivalent  to .38 bore Revolvers).\n<\/p>\n
3.\tAll weapons firing rimmed cartridges having bore
\ndiameter across lands in the range between .340 to
\n.365 and<\/p>\n
4.\tAll 9 MM caliber pistol which can load and fire
\nservice cartridges rifles 9 MM.”\n<\/p>\n
3.\tThe State Govt. are already aware that the question
\nof revision of the Indian Arms Act<\/a> & Rule is under
\nconsideration of the Govt. of India and it is intended to
\nincorporate the classifications mentioned above in the
\nIndian Arms Rules when revised.\t  In the meantime, I
\nam to request that the other State Govt. may give effect
\nto the above decision at once.” (As per the paper book
\nfiled).\n<\/p>\n
The High Court on this score  stated :\n<\/p>\n
“On a fair interpretation of the relevant provisions of the
\nArms Act<\/a>; the rules made thereunder; the relevant
\nschedule and in the light of the above letter, we are of
\nthe opinion that Articles 19 and 20, seized from the
\naccused are prohibited arms within the meaning of Arms
\nAct<\/a>, 1959 and hence Section 27(3)<\/a> thereof is squarely
\nattracted to the facts of the present case.”\n<\/p>\n
\tThe submission of the State, however, has been\tthat the note
\nissued by the Central Government as noticed above, ought to be
\ntreated as an authorisation within the meaning of the first schedule
\nto the Statute.\t  Mr. Ranjit Kumar vis-a-vis the note had a two
\npronged attack on the score : On the first count, it has been
\ncontended that the note pertaining to the 9 mm pistol and  .38 bore
\nimported revolver stands out to be prohibited for the purposes of
\nimportation only, as such the general definition as regards the
\nprohibited weapons would not in any way thus stand attracted and
\nhence the note to be  treated as an instruction and not a notification,
\nthus does not authorise a punishment under Section 27(3)<\/a> of the
\nArms Act.  We find, however, that there is some justification in
\nsuch a contention but the second count is rather important inasmuch
\nas the requirement of the Statute is the issuance of a notification.
\nNotification in common English acceptation mean and imply a
\nformal announcement of a legally relevant fact and in the event of a
\nStatute speaking of a Notification being published in the Official
\nGazette, the same cannot but mean a Notification published by the
\nauthority of law in the Official Gazette.   It is on formal declaration
\nand publication of an order and shall have to be in accordance with
\nthe declared policies or in the event the requirement of the Statute
\nthen in that event in accordance therewith.
\n\tIt is on this score the observations of this Court in  Union of
\nIndia & Anr. v. Charanjit S. Gill & Ors<\/a>. (2000 (5) SCC 742) may
\nbe of some relevance.  This Court while dealing with the Army Act<\/a>,
\n1950 and the Court Martials thereunder observed that the “Notes”
\nhave been issued by the authorities of the Armed Forces for the
\nguidance of the officers connected with the implementation of the
\nprovisions of the Act and the Rules and not with the object of
\nsupplementing or superseding the statutory Rules by administrative
\ninstructions  thus more or less on similar situation as is presently
\nunder consideration since the “Note” cannot but be termed to be an
\nadministrative instruction.   This Court in Charanjit S. Gill (supra)
\non the basis of the aforesaid stated that the administrative
\ninstructions issued or the notes attached to the Rules which are not
\nreferable to any statutory authority cannot be permitted to bring
\nabout a result which may take away the rights vested in a person
\ngoverned by the Act  we do record our concurrence with such a
\nstatement since in our view question of issuance of an
\nadministrative order or a note pertaining to special type of weapons
\nto bring it within the ambit of the Arms Act<\/a> which was hitherto not
\nbeing included therein cannot be said to be included in the manner
\nas it has sought to have been so done.\t Section 27(3)<\/a> of the Arms
\nAct prescribes a death penalty in the event the arm or weapon
\nconcerned stands out to be a prohibited arm, user of which results
\nin a death  a rather stringent provision.   A person, howsoever
\ngraver the offence may be, cannot be punished more than as is
\nprescribed under Section 27(3)<\/a> of the Arms Act.\t  On a comparative
\nanalysis of Section 302<\/a>, there is some amount of laxity involved as
\nregards the resultant death of a person by reason of a deliberate act
\nof the accused\tit is on this score the legislature prescribes two
\nobjects, namely, imprisonment of life or death\tthus leaving it to
\nthe wisdom of the Court to pass the sentence in accordance with the
\ngravity of the nature of offence and the methodology used to bring
\nan end to the life of the assassin.  It is in this perspective that the
\nlaw is settled enough to record that it is only in the rarest of the rare
\ncases that the maximum penalty, namely, the death sentence ought
\nto be levied since that would be a barbarous act as that would run
\ncounter to the civilised notion and concept of the justice delivery
\nsystem.\t  True, a man’s life comes to an end but would the justice
\ndelivery system require that he should equally\tbe punished in the
\nsame fashion and manner.   This issue has been answered in the
\nnegative with a rider that in the event, however, the methodology
\nadopted by the accused cannot but be termed to be rarest of the rare,
\nthis court would be at liberty to punish the offender with a death
\npenalty.    The jurisprudential system has developed in the country
\non this backdrop and it is in this perspective this possible attraction
\nof Section 27(3)<\/a> of the Arms Act shall also have to be dealt with.
\nThe Court must use the greatest amount of caution in the matter of
\nexercise of jurisdiction under Section 27(3)<\/a> and unless, needless to
\nrecord that the issue in question stands covered in all its perspective
\nand no two opinions can be had thereon, the Court will not be
\njustified to bring home the charge under Section 27(3)<\/a> of the Arms
\nAct.   Liberty is precious but life is more precious than liberty and
\nthe latter cannot possibly be taken away, if one does not cross the
\nlimits even at the cost of unforensic language in judicial
\nphraseology  on ‘the drop of a hat’ but one needs to bring home the
\nattributes without any doubt as regards Section 27(3)<\/a> of the Arms
\nAct.   The Statute speaks of a notification in the Official Gazette
\ncan an administrative note in relation to importation of a prohibited
\narm be termed to be sufficient so as to come within the ambit of the
\nstatutory requirement of a notification in the Official Gazette\t the
\nanswer cannot but be in the negative.\tAdministrative instructions
\ncannot possibly be a substitute for a notification which stands as a
\nrequirement of the Statute.\n<\/p>\n
\tOn the wake of the aforesaid, question of there being any
\nnotification even in the guise of an administrative order does not
\nand cannot arise.   The requirement of the Statute is sacrosanct and
\nsince the issue shall have to be dealt with  utmost care and caution,
\nwithout the issuance of a notification question of a conviction under
\nSection 27(3)<\/a> of the Arms Act would not arise.\t We are thus unable
\nto record our concurrence with the submissions of the State that the
\nadministrative instructions ought to be treated as a notification  the
\nsame cannot be sustained for reasons noticed hereinbefore and by
\nreason of the stringency of the provision as laid down in Section
\n27(3)<\/a>, we do find some justification in the criticism of the judgment
\nof the High Court as regards the acceptability of the administrative
\nnote.\n<\/p>\n
\tIn that view of the matter, the first contention of Mr. Ranjit
\nKumar in support of the appeal succeeds that conviction under
\nSection 27(3)<\/a> cannot be sustained.\n<\/p>\n
\tTurning attention on to the offence under the general law of
\nthe land, the High Court thought it fit to confirm the death sentence
\nas granted by the learned Sessions Judge.    Be it noted that Section
\n354(3)<\/a> of the Criminal Procedure Code, 1973 specifically records
\nthat in the event of a sentence of death the Court must state special
\nreasons for such a sentence.   Let us, however, at this juncture see
\nfor ourselves as to whether in fact the High Court confirming the
\ndeath sentence have recorded any special reasons therefor.   In
\nparagraph 83 of the judgment, the High Court recorded as below :
\n“Deceased Harish Bhatia was only trying to
\nrecover legitimate dues of the brother-in-law
\nP.W.6 Rajesh by persuasion and requests.   He was
\na respectable person not involved in any crimes.
\nWhen the incident occurred he was totally
\ndefenceless.   He was shot at in a most brutal
\nmanner.\t  Depravity of the accused is evident from
\nthe way in which they fired at the deceased by
\ngoing to his door steps when he was unarmed.  We
\nhave no manner of doubt that this is one of the
\nrarest of rare cases which warrant imposition of
\ndeath penalty.”\n<\/p>\n
\tThis, however, in our view, does not satisfy the statutory
\nrequirement as noticed hereinbefore since the same cannot be
\ntermed to be a special reason for imposition of such a penalty.
\nGunshot injuries were caused and at that point of time the deceased
\nwas unarmed and was taken aback as to the whole situation  in
\nevery incidence of murder brutality is involved.   It is not as that
\nwhat we find on the factual score in Jai Kumar (supra).\t  Brutality,
\nobviously would be an existing factor but how the same did take
\nplace is the relevant and necessary material to be considered.\t In
\nJai Kumar (supra) the accused was trying to commit rape on his
\nbrother’s wife and having failed to achieve the object committed a
\nbrutal murder by severing her head from the body and hanging her
\nhead on the tree.   The accused further committed a murder of the 8
\nyears old daughter of deceased sister-in-law who had witnessed the
\nincident and the facts establish the depravity and criminality of the
\naccused in no uncertain terms  that has been the factual finding in
\nJai Kumar (supra) and the Court confirmed the sentence of death :
\nIs it with the same brutality or can the acts be termed to be similar
\nin nature so far as brutality is concerned, the answer cannot but be
\nin the negative.   The High Court placed reliance on the decision of
\nthis Court in Dhananjoy (Dhananjoy Chatterjee alias Dhana v. State
\nof W.B<\/a>. – 1994(2) SCC 220) and in particular relied upon the
\nfollowing observation :\n<\/p>\n
\t“In our opinion, measure of punishment in a given
\ncase must depend upon the atrocity of the crime;
\nthe conduct of the criminal and the defenceless and
\nunprotected state of the victim.   Imposition of
\nappropriate punishment is the manner in which the
\ncourts respond to the society’s cry for justice
\nagainst the criminals.\t Justice demands that courts
\nshould impose punishment befitting the crime so
\nthat the courts reflect public abhorrence of the
\ncrime.\t The courts must not only keep in view the
\nrights of the criminal but also the rights of the
\nvictim of crime and the society at large while
\nconsidering imposition of appropriate
\npunishment.”\n<\/p>\n
\t  In the last noticed decision the factual score prompted this
\nCourt to confirm the death sentence.   Paragraph 16 of the judgment
\ngives us a glimpse thereof and as such the same is set out
\nhereinbelow :\n<\/p>\n
\t“The sordid episode of the security guard, whose
\nsacred duty was to ensure the protection and welfare of
\nthe inhabitants of the flats in the apartment, should have
\nsubjected the deceased, a resident of one of the flats, to
\ngratify his lust and murder her in retaliation for his
\ntransfer on her complaint, makes the crime even more
\nheinous.  Keeping in view the medical evidence and the
\nstate in which the body of the deceased was found, it is
\nobvious that a most heinous type of barbaric rape and
\nmurder was committed on a helpless and defenceless
\nschool-going girl of 18 years.\tIf the security guards
\nbehave in this manner who will guard the guards?  The
\nfaith of the society by such a barbaric act of the guard,
\ngets totally shaken and its cry for justice becomes loud
\nand clear.  The offence was not only inhuman and
\nbarbaric but it was a totally ruthless crime of rape
\nfollowed by cold blooded murder and an affront to the
\nhuman dignity of the society.  The savage nature of the
\ncrime has shocked our judicial conscience.  There are no
\nextenuating or mitigating circumstances whatsoever in
\nthe case.  We agree that a real and abiding concern for
\nthe dignity of human life is required to be kept in mind
\nby the courts while considering the confirmation of the
\nsentence of death but a cold blooded preplanned brutal
\nmurder, without any provocation, after committing rape
\non an innocent and defenceless young girl of 18 years,
\nby the security guard certainly makes this case a “rarest
\nof the rare” cases which  calls for no punishment other
\nthan the capital punishment and we accordingly confirm
\nthe sentence of death imposed upon the appellant for the
\noffence under section 302<\/a> IPC.\tThe order of sentence
\nimposed on the appellant by the Courts below for
\noffences under Sections 376<\/a> and 380<\/a> IPC are also
\nconfirmed along with the directions relating thereto as in
\nthe event of the execution of the appellant, those
\nsentences would only remain of academic interest.  This
\nappeal fails and is hereby dismissed.”\n<\/p>\n
\tOurs being a civilised society\ta tooth for a tooth and an eye
\nfor an eye ought not to be the criterion and as such the question of
\nthere being acting under any haste in regard to the capital
\npunishment would not arise : Rather our jurisprudence speaks of the
\nfactum of the law courts being slow in that direction and it is in that
\nperspective a reasonable proportion has to be maintained between
\nthe heinousness of the crime and the punishment.   While it is true
\npunishment disproportionately severe  ought not to be passed but
\nthat does not even clothe the law courts, however, with an option to
\naward the sentence which would be manifestly inadequate having
\ndue regard to the nature of offence since an inadequate sentence
\nwould not subserve the cause of justice to the society.\t   In the
\ncontextual facts, we do not find the brutality of such a nature so as
\nto exercise the discretion of passing an order of capital punishment
\nundoubtedly brutality is involved but that brutality by itself\twill not
\nbring it within the ambit of the rarest of the rare cases.  On the wake
\nof the aforesaid and having regard to the nature of the offence and
\nthe methodology adopted, we are convinced that the punishment
\nawarded to the appellants herein is in excess of the requirement of
\nthe situation and as such while recording our concurrence with the
\nfinding as recorded by the High Court in the judgment impugned, as
\nregards the guilt of the accused under Section 302<\/a> read with Section
\n34<\/a> of the Indian Penal Code, we are inclined to modify the sentence
\nof death to that of life imprisonment under Section 302<\/a> read with
\nSection 34<\/a> of the Indian Penal Code as against the appellants herein,
\nand  it is ordered accordingly:\t Except however, as above, this
\nappeal fails and is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Subhash Ramkumar Bind @ Vakil & Anr vs State Of Maharashtra on 12 November, 2002 Author: Banerjee Bench: Umesh C. Banerjee, B.N. Agrawal. CASE NO.: Appeal (crl.) 18 of 2002 PETITIONER: Subhash Ramkumar Bind @ Vakil & Anr. RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 12\/11\/2002 BENCH: Umesh C. Banerjee & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249407","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSubhash Ramkumar Bind @ Vakil & Anr vs State Of Maharashtra on 12 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subhash-ramkumar-bind-vakil-anr-vs-state-of-maharashtra-on-12-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subhash Ramkumar Bind @ Vakil & Anr vs State Of Maharashtra on 12 November, 2002 - 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