JUDGMENT 1. - Accused Bhiwa Ram was tried by the learned Sessions Judge, Chuju for the offences under Sections 302, 307 and 458, Indian Penal Code. The learned Sessions Judge, by his judgment dated October 24, 1978, held the accused guilty and convicted him for the offence under Sections 302, 323 and 452, Indian Penal Code, acquitted him of the charge for the offence under Sections 307, Indian Penal Code. The accused was sentenced to death for the offence under Section 302 Indian Penal Code. In view of the death sentence the learned Sessions Judge did not award any sentence under Sections 323, and 452, Indian Penal Code. 2. The proceedings in the case were submitted to this Court for confirmation of the death sentence as required under Section 366, Code of Criminal Procedure. The learned Sessions Judge, at the time of pronouncement of the judgment, informed the accused that if he desires to file the appeal in the Hon'ble High Court, he may do so within a period of seven days. 3. Being aggrieved by that judgment, the accused has filed jail appeal. The learned Sessions Judge in his reference for confirmation of the sentence of death has written that he had satisfied himself that the prisoner has no funds to employ a counsel in the High Court, hence Shri O.C. Chatterjee was appointed Amicus Curiae for the accused. 4. The question of confirmation of the sentence of death passed upon the accused Bhiwa Ram and his appeal against the judgment passed against him involve common questions, hence they are decided by one single judgment. 5. The learned amicus curiae has not pressed the appeal on merites of the case in view of the fact that the accused has pleaded guilty initially and thereafter in his statement under Section 313, Code of Criminal Procedure admitted his guilt in unambigous terms, but he has submitted that in view of the peculiar circumstances of the case, that is the accused while admitting the guilt has stated that on account of harassment by the police personnel, he became fed up and that was the reason for his committing the crime and his being too old that is the age of 70 years the Sentence of death may be reduced to imprisonment for life only. Because the appeal has not been argued on merits and the on question to be determined is whether the sentence of death should be reduced to one for imprisonment for life, the facts of the case need not be stated and discussed in detail. 6. Brief story of the prosecution is that in the intervening night of 17th and 18th May, 1978 when the constable Nizam Khan was sleeping in his residential house at Momasar Police Outpost, he at about 2 a.m. heard the shrieks from towards the roof of Khiv Singh where Khiv Singh constable was sleeping. Nizam Khan at once left his quarter and was ascending the stairs leading to the roof of the quarter of Khiv Singh, when accused Bhiwa Ram came from the roof and inflicted a blue on the head of Nizam Khan causing bleeding Nizam Khan came down and saw Narayan Singh lying in the court yard with in tries on the neck which were bleeding Nizam Khan raised a hue and cry for being saved from Bhiwa Ram Jat, Khanga Ram, who was sleeping at his well, rushed there and Nizam Khan and Khaoga Ram went inside the police outpost and asked Bhiwa Ram accused to come down. Bhiwa Ram warned them that he had already done away with two persons and they may also go up stairs and he will clear their account also The shrieks from the roof of the quarter of Khiv Singh had by that time stopped. Khanga Ram and Nizam Khan out of fear did not go up stairs and went to the hospital where Nizam Khan's injury was bandaged by the doctor. Nizam Khan assembled the villagers and at dawn saw Bhiwa Ram on the stairs of the roof of the quarter with an axe. On being asked to Come down Bhiwa Ram threatened that he will kill who ever will go upstairs. Nizam Khan went to the police station, Dungargarh and lodged a report. The police force went to the site & Fakroo Deen engaged the accused in talk when constables Ballu Khan & Sumermal went on the roof & caught hold of the accused from back side and he was arrested The axe of the accused was taken possession of and sealed. The investigation was done and the clothes of the accused and the clothes of the deceased were taken in possession by the police. The investigation was done and the clothes of the accused and the clothes of the deceased were taken in possession by the police. The post-mortem examinations of the dead bodies of Narayan Singh and Khiv Singh were conducted. The recovered blood stained articles were sent for chemical analysis and the report was positive for blood and the report of the serologist was positive for human blood On those articles After investigation charge sheet was submitted against the accused in the Court of Chief Judicial Magistrate, Churu, who committed the accused to the Court of Sessions Judge, Churu for trial The learned Sessions Judge charge-sheeted the accused and recorded his plea. The accused admitted the guilt and stated that when he was harassed, he killed Khiv Singh and Narayan Singh by inflicting injuries to them. He also admitted to have injured Nizam Khan and stated that being fed up, he had done so He stated that the Hawaldar and constables used to harass him and so he killed them with an axe. Though the accused had pleaded guilty, in view of the serious nature of the case the learned Sessions Judge thought it proper to hold a trial. 7. The prosecution examined eight witnesses. The accused in his statement under Section 313, Code of Criminal Procedure, admitted the guilt and also the factum of recovery of the axe from him. No defence was taken and no defence witness was produced. The learned Sessions Judge held the accused guilty under Section 302, Indian Penal Code for the murder of Khiv Singh and Narayan Singh and for the offence under Section 323, Indian Penal Code, for causing injury to Nizam Khan, and under Section 152, Indian Penal Code for his entering into the police outpost to commit the crime. With these findings the learned Sessions Judge passed the judgment under appeal and reference. 8. As I have stated above the learned Amicus Curiae did not press the appeal on merits and prayed for a lenient view to be taken in the matter, in view of the circumstances of the case and the age of the accused. With these findings the learned Sessions Judge passed the judgment under appeal and reference. 8. As I have stated above the learned Amicus Curiae did not press the appeal on merits and prayed for a lenient view to be taken in the matter, in view of the circumstances of the case and the age of the accused. The learned Public Prosecutor fairly agrees that tender age and old age are the factors which may be considered while pausing the sentence but his contention is that in this case the accused had brutally murdered two innocent persons, who were unarmed and were sleeping and he has also attempted to murder the third man, who warned to sane the victims. According to the learned Public Prosecutor there is nothing on the record to suggest that the accused was unnecessarily harassed by the police and whatever is evident is that bailable warrants against the accused were served upon him by the police constables in discharge of their duty In reply to the argument of the learned amicus curie that it was in grip of emotion because of the harassment by the police for calling the accused again and again at the police out-post and the police station and detaining him there he had committed this crime, the learned Public Prosecutor submitted that there was no instant occasion for the accused to cause any injury to any-body. 9. We have given our anxious consideration to the material on the record to find out whether there is any such circumstance to suggest that the accused dominated by any irresistible impulse committed this henious crime. This is the proved position that certain bailable warrants were got served on the accused but there is nothing to suggest that the accused was ever harassed. The argument of the learned amicus curiae is that the accused had no means to defend himself and therefore there were no means with him to prove the harassment received at the hands of the police personnel. It might be the case, but the accused has endeavoured to commit a heinous crime in the dead of night and that shows that there was a preplanning in his mind and he had the wisdom to understand that in the dead of night in attacking the unarmed constables, his plan will be successful. It might be the case, but the accused has endeavoured to commit a heinous crime in the dead of night and that shows that there was a preplanning in his mind and he had the wisdom to understand that in the dead of night in attacking the unarmed constables, his plan will be successful. One factor of course is evident from the record that the accused did not try to run away after committing the crime and remained sitting with an axe on the stair-case till the arrival of the police. This abnormal behaviour of the accused does throw a light on the factor that some thing was pinching his mind which he revealed by way of this revenge. The learned amicus curiae referred to the case : Konnakunnumal v. State, AIR 1967 Kerala 92 wherein in view of advanced age and medical evidence of some disease of mind the sentence of death passed by the Sessions judge was interfered by the High Court and reduced to the sentence of imprisonment for life. In that case the plea of insanity was taken to bring the case under the exception within the ambit of Section 84, Indian Penal Code, but the evidence in the case was not held sufficient to fulfil the onus which was on the accused to establish insanity, but in view of the advanced age of the accused and medical evidence of some disease of the mind of the accused, though not of the requisite kind and degree to make an exception, the extreme penalty of law was reduced to imprisonment for life. In the present case, there is no material to suggest about any mental disease of the accused and there appears to be no reason for him to take such a revenge from his victims under the garb of harassment. Despite that from the plan, and from the fact of his abnormal conduct after the commission of the crime it is revealed that what ever was being done with him, he was considering to be a harassment and though without any reason had lost the balance of his mind which though not a defence to the charge may be considered in awarding the punishment in view of the special circumstance of his advanced age. In the case of Ediga Anamma v. State of Andhra Pradesh AIR 1974 Supreme Court 799 it has been observed that where the murderer is too young or too old, the clemency of penal justice helps him. The facts of that case disclose that the murderer was a rustic young woman who expressed her sex jealousy in gruesome murder of a young woman and her tender child. The accused very cleverly wanted to conceal her crime by making the deceased wear her own clothes after the murder of as to misguide the persons on seeing the corpse and the stage reached that the dead body was about to be cremated with a misunderstanding that it was the dead body of the accused. It was per chance that the dead body was identified and the real facts were disclosed in the investigation. Despite those factors the sentence of death of the accused was substituted for life sentence because of the young age of the culprit In that case the factors to be kept in mind while awarding the extreme penalty were discussed in detail, the position of law, as it existed prior to the amendment of the Code of Criminal Procedure, 1955, subsequent to that amendment and in the new Code of Criminal Procedure, 1973 was discussed and it was observed that before 1955 the normal rule was to sentence to death a person convicted for murder end to impose the lesser sentence for reasons to be recorded in writing By the amendment this provision was deleted with the result that the court was free to award either death sentence or life imprisonment, unlike formerly when death was the rule and life term the exception, for recorded reasons. In view of the new Criminal Procedure Code a great change has over taken the law. Section 354(3) provides that when the conviction is fir an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence The judgment of the learned Sessions Judge in the case in hand is quite considered and a reasoned one. He was also alert to this changed position of the law and the intention of the legislature which is evident from the fact that in passing a sentence of death he has given elaborate reasons for imposing the extreme penalty upon the accused. 10. With the principle enunciated by their Lordships of the Supreme Court, in the case just referred to above, and the reasons given by the learned Sessions Judge for awarding extreme penalty to the accused the pertinent question before us is that whether this 70 years old man deserves any clemency of penal justice. The question of capital punishment has attracted attention of the Legislature since long and their Lordships of the Supreme Court have observed that, "It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention." 11. In the present case, the accused is an old man of 70 years of age, and, in our opinion, this factum of old age helps him for our inclining to take a lenient view in the matter. Hence the reference of death sentence passed upon the accused-appellant Bhiwa Ram is not confirmed. The conviction of the accused-appellant is maintained but his appeal is accepted to the extern that the sentence of death passed upon him is reduced to the imprisonment for life.Reference not allowed. *******