S. S. SHARMA, J. ( 1 ) IN Sessions Trial No. 130 of 1983, Sessions Judge, Durg by his judgment dated 1. 12-1983 convicted the appellant Jarha under section 436 read with section 3 - Indian Penal Code and sentenced him to R. T. for two years and fine of Rs. 300/-, in default RI. for three months. Appellants Chhedilal and Dhamingh have been sentenced till the rising of the Court and fine of Rs. 500/- each, in default RI. for three months. By this appeal the said conviction and sentence have been challenged by the appellants. ( 2 ) APPELLANT Chhedilal is the son of appellant Jarha and appellant Dhansingh is the son -in-law of appellant Jarha. These appellants are residents of village Amora, P. S. Nandghat district Durg. Tularam (P. W. 3) has stated that on the date of the incident he also had been living in that village. ( 3 ) THE prosecution case briefly stated is that in the night intervening 4. 6. 1983 and 5. 6. 1983 when Tularam (P. W. 3) was sleeping in his house, the accused chained the door from out side and after scattering dried bushed etc around his house set them to fire with the result that Tularams house also caught fire. As a result of this fire the house was burnt resulting into a loss of about Rs. 15,000/ -. ( 4 ) TULARAM (P. W. 3) on 5. 6 1983 submitted a written report Ex. P. 1 at Police Station Nandghat which is about 16 Kms. from that place. Sub-Inspector B. S. Verma (P. W. 4) has stated that this report Ex. P. 1 was submitted in the morning of 5. 6. 1983 at about 8. 00 a. m. That sub-Inspector then registered the offence vide Ex. P. 1 and proceeded to the spot. On the spot he seized five KANUS and some broken tiles etc. vide memorandum Ex. P. 2. ( 5 ) THE version of Tularam (P. W. 3) is that in the night he got up from the sleep because of the barking of the dogs. He then came out and after urination again went inside and slept. After sometime he heard some noise of the doors. vide memorandum Ex. P. 2. ( 5 ) THE version of Tularam (P. W. 3) is that in the night he got up from the sleep because of the barking of the dogs. He then came out and after urination again went inside and slept. After sometime he heard some noise of the doors. He, therefore, came to the doors and unchained the same from inside but he found that he could not open the doors as they had been chained from out side. From the chinks of the doors he saw three persons standing outside who according to him were the three appellants. He claims to have heard them talking. Appellant Jarha is said to have asked whether the doors have properly been chained from outside. He has also stated about what Dhansingh had replied. He also heard the accused saying that in the event of the doors being opened whether he would be able to get away from amongst 20 to 25 persons. Dhan Singh is also alleged to have stated that all the persons have come and they would kill him. Jarha then said that they do not have to go inside. Then the dried bushes were scattered round by the accused. Thereafter appellant Jarha took the match box from Chhedial and set those bushes to fire. As a result of this the ceiling of Tularams house caught fire. ( 6 ) ACCORDING to Tularam he broke the wall where there was an almirah and rushed towards the well. Seeing him near the well some people shouted that I have run out of the house. Thereafter he rushed for the Police Station. On the way he got a truck which dropped him at village Kura from where he came on foot to the Police Station. As he states, the damage was worth about Rs. 15,000/- to Rs. 20,000/ -. The prosecution had also examined Kartikram (P. W. 1) who is a kotwar and Dashrath (P. W. 2 ). Their version is that in the night the villagers had shouted about there being fire. They had seen that there was fire in the roof of Tularams house. None of them had seen Tularam (P. W. 3) in that night. There is no evidence about Tularam (P. W. 1) having raised any shouts about his house having been set to fire or even about the accused having done it. They had seen that there was fire in the roof of Tularams house. None of them had seen Tularam (P. W. 3) in that night. There is no evidence about Tularam (P. W. 1) having raised any shouts about his house having been set to fire or even about the accused having done it. ( 7 ) SO far as the appellants having set the house to fire is concerned, the only evidence is that of Tularam (P. W. 3 ). In his cross-examination he bas admitted that in the year 1981 82, quarrel had taken place between him and appellant Chhedilal as a result of which proceedings under section 107/116 Criminal Procedure Code were initiated. He also states that as a result of that incident the police had been posted to his house. Even thereafter there had been a quarrel between him on the one hand and appellant Jarha and Dhansingh on the other hand about which he had lodged a report in the Police Station. He admitted that even after hearing the voice of appellant Jarha he did not raise any shouts and the reason that he gives is the danger to his life. In the last part of his cross-examination with regard to the presence of other persons besides the three appellants which he had mentioned in the FIR. , his version is that he had so mentioned because of their voice. ( 8 ) IN my opinion, the statement of Tula Ram (P. W. 3) requires corroboration which is wholly lacking in the instant case. It is most unnatural that inspite of his having seen the appellants, with whom he had inimical relations near his house at an odd hour of the night, he would not raise any shouts. It is equally unnatural that while running away because of the house having been set to fire, he would not raise shouts and tell the villagers about the house having been set to fire by these appellants. It is apparent from the evidence of witnesses that there are persons who were residing near about his house. The incident took place during the summer days and so most of the persons must have been sleeping outside their respective houses. It is apparent from the evidence of witnesses that there are persons who were residing near about his house. The incident took place during the summer days and so most of the persons must have been sleeping outside their respective houses. ( 9 ) KARTIK (P. W. 1) and Dashtath (P. W. 2) have stated that prior to the incident Tularam with his family had not been living in that house. Dashrath (P. W. 2) has no doubt stated that at about 8. 00 to 10. 00 p. m. he had seen Tularam at his house. This would not necessarily mean that he was present even at the time, when the house was set to or caught fire. The duration of Tularam and his family being away from the village as given by Kartik (P. W. 1)Is about a year and this period as stated by Dashrath is about two to three months. Even Tularam in his cross-examination admitted that since-about three months prior to the incident his wife and mother had left the village, while his father and brother were living in Bhilai since long time. In these circumstances, it does not stand to reason that in the said house so much of the belongings etc. must have been kept as have been stated by Tularam in his statement. ( 10 ) LEARNED Sessions Judge was, in my opinion, entirely wrong in accepting the evidence of Tularam (P. W. 3) for holding the appellants responsible for the alleged offence. In these circumstances, the conviction of the appellants for the said offence cannot be up held and deserves to be set aside. ( 11 ) CONSEQUENTLY, this appeal is allowed. The conviction and sentences of the appellants are set aside. The amount of fine if paid be refunded back to the appellants. The bail bonds of the appellants are discharged. Appeal allowed. EXECUTION OF AN ISSANE - A STRANGE VIEW OF ADMINISTRATION OF CRIMINAL JUSTICE By T. BHATTACHARYYA* It is strange that over a period of about eight years no one has noticed or commented upon the rather uncharacteristic judgment of the Supreme Court in Amrit Bhushan Gupta v. Union of India and others1. The case involved a significant issue of human dignity and the demands of criminal justice administration in India. The case involved a significant issue of human dignity and the demands of criminal justice administration in India. One would have thought that whatever its judgment at least the Supreme Court should have disclosed that it appreciated the importance of the interests involved, In fact the judgment seems rather sketchy. The case involved what Professor Roscoe Pound called the delicate balancing of interests. In this case it was the delicate balancing of individual interest in guarding the dignity of a human individual who makes up society and the societys interest in its welfare. The facts of the case were that the appellant was sentenced to death under section 302, Indian Penal Code by the District and Sessions Judge, Delhi for burning alive three innocent sleeping children aged 14, 8 and 5 years and to seven years rigorous imprisonment under Section 307, Indian Penal Code for attempting to murder the intervener petitioner, the father of the three deceased children, almost a year after the childrens murder. The Delhi High Court confirmed the death sentence. Certain relatives of the appellant raised an unsuccessful plea of insanity in the High Court after pronouncement of High Courts Judgment. This was not even entertained. A Division Bench of the Delhi High Court dismissed a petition against execution on the ground of insanity with the remarks that invocation of its power under Article 226 of the Constitution was not justified and the Court was certain that if the petitioner was really insane, appropriate authorities would take necessary action. The Supreme Court granted special leave to appeal. The following additional facts were mentioned by the intervener petitioner which had not been controverted. The writ petition was dismissed in July, 1971. Another petition was dismissed in August, 1975. The Supreme Court had dismissed various petitions of the appellant petitioner noted below: the special leave petition in April, 1970, another petition in September, another petition in April, 1971 another petition filed in May 1971 was withdrawn by the appellant petitioner in August, 1976, and another petition in January, 1976. The President of India had also rejected his mercy petitions in August, 1970, December, 1970, November, 1971 and February, 1972. The dates for his execution were fixed by the Government of India in December, 1970, again in August, 1975 and once again in December, 1975. The President of India had also rejected his mercy petitions in August, 1970, December, 1970, November, 1971 and February, 1972. The dates for his execution were fixed by the Government of India in December, 1970, again in August, 1975 and once again in December, 1975. The intervener petitioner alleged that the appellant petitioner and his relatives, had been delaying the matter Of execution on one excuse or the other, that their latest plea was nothing new but a repetition of their modus operandi and that the intervener petitioner and his wife had been under constant torment since the day their three innocent children were gruesomely murdered in 1968 and the death penalty awarded to the appellant petitioner in 1969 was being postponed on the making of the appellant petitioner. The Supreme Court, dismissing his prayer, ordered for his execution holding that the sentence of death passed on him and confirmed subsequently could not be interfered with either by the High Court acting under Article 226 or the Supreme Court under Article 136 of the Constitution and that such convicted person could be executed even if he had become insane. It was clarified by the Supreme Court that the Courts in our country have no power to prohibit the carrying out of a sentence of death legally passed upon an accused on the ground either that there is some rule in the English common law against the execution of an insane person sentenced to death or some theological, religious, or moral objection to it. Indian statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the forefront. What the statute law does not prohibit or enjoin could not be enforced by means of a writ of mandamus underArticle 226 of the Constitution so as to get at naught a duly passed sentence of a court of justice. A senior psychiatrist who examined the appellant petitioner under orders of the court observed that he was a person of unsound mind suffering from Schizophrenia which is a basically incurable type of insanity characterised by remissions and relapses at varying intervals. The other psychiatrist, also acting under court orders, opined that he was suffering from chronic schizophrenia and was, therefore, of unsound mind under the Indian Lunacy Act, 1912. The other psychiatrist, also acting under court orders, opined that he was suffering from chronic schizophrenia and was, therefore, of unsound mind under the Indian Lunacy Act, 1912. The main contention of the appellant petitioner was that anyone becoming insane after his conviction and sentence could not be executed until he regained sanity. The Supreme Court while rejecting this contention rather strangely observed that the question whether on the facts and circumstances of a particular case, a convict, alleged to have become insane, appears to be so dangerous that he must not be let loose upon society lest he commits similar crimes against other innocent persons when released or because of his antecedents and characters, or, for some other reasons, he deserves a different treatment, are matters for other authorities to consider after a court has duly passed its sentence. The decision and the reasons of it immediately cause a turmoil in mind. The court had the benefit of taking help from Hales Pleas of the Crown2 wherein it has been provided: If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by Jaw to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed if after judgment he becomes of nonsane memory, his execution shall be spared. . . Coke has also observed:3 It was further provided by the said Act of 33 H. S. that if a man attained of treason became mad, that notwithstanding he should be executed; which cruel and inhuman law lived not long, but was repelled, for in that point also it was against the common law4 because by intendment of law the execution of the offender is for example, utpoena and paucos, metus and omnes perveniat5, as before it said; but so it Is not when a mad man Is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty6, and can be no example to others. Blackstones Commentaries on the Law, of England7, was also quoted wherein it is clearly provided that: If after judgment, he becomes of non-sane memory, execution shall be stayed for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Blackstones Commentaries on the Law, of England7, was also quoted wherein it is clearly provided that: If after judgment, he becomes of non-sane memory, execution shall be stayed for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Rupert Cross, a modern writer, was also quoted:8 If he becomes insane after sentence of death, he cannot be hanged until he has recovered the question of sanity is entirely a medical question of fact. . . The basis of the rule that an insane person should not be executed is less clear. Occasionally, the rule is said to be founded on theological grounds. A man should not be deprived of the possibility of a sane approach to his last hours. Sometimes, the rule is said to be based on the fact that condemned men must not be denied the opportunity of showing cause by why they should not be reprieved. The Supreme Court did not think that any benefit could be given to the appellant petitioner on the basis of the above mentioned common law of England because in such matters Indian statute law prevailed over every other law. Since there was no such provision in India, the Supreme Court observed that courts had no power to prohibit execution of a condemned man once the sentence was passed legally. The reasons given by the Supreme Court are cursery and disclose an indifference to larger issues of morality and humanity involved in the case. It has been said that the Indian statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the forefront. With respect, the primary basis of all secular considerations is moralityand humanity involved in the case. It has been said that the Indian statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the forefront. With respect, the primary basis of all secular considerations is morality and tolerance of differences in communities living in this country. In fact considerations of genuine secularism should have persuaded the court to look into the issues of human dignity and morality and arrive at its judgment after due balancing of interest of the society on the one hand and that of the individual on the other. In fact considerations of genuine secularism should have persuaded the court to look into the issues of human dignity and morality and arrive at its judgment after due balancing of interest of the society on the one hand and that of the individual on the other. Further, there is no doubt that protection and welfare of society is of prime concern but what has the Supreme Court proved - before the people by not staying the execution of the insane appellant petitioner, does it wish to say that by ordering for the execution, the court has protected the welfare of the society? With respect, this is a curious logic. Penologically also retribution and deterrent considerations fail in this particular instance. Neither there is a case of retribution when an insane is ordered to be executed nor is there a deterrence in the mind of others over his execution. At best, if at all there be anything, there is only pity and sympathy with the dead man and the law and criminal justice become a laughing stock when a person who does not know what is being done against him, is executed. The Supreme Court has approved the remarks of the High Court that the authorities concerned are expected to look into matters which lie within their powers. The fact, how ever, remains that the Supreme Court itself had sought opinions of psychiatrists on the state of mind of the appellant petitioner and psychiatrists were unanimous in holding that he was a chronic case of schizophrenia and was, therefore, a person of unsound mind within the provisions of the Indian Lunacy Act, 1912. Even armed with this knowledge and with the additional knowledge that proper authorities had not done anything in the matter the Supreme Court wishes to make everyone believe that it had done all what it could do under the circumstances in the matter. Even armed with this knowledge and with the additional knowledge that proper authorities had not done anything in the matter the Supreme Court wishes to make everyone believe that it had done all what it could do under the circumstances in the matter. The Supreme Court has in recent times made immense contribution towards social criminal justice by creating new vistas like public interest litigation, by treating mere one line Post Cards as writ petitions, by issuing show cause notices to the government on the plight of under trials in Jails, by evolving the concept of basic feature in relation to the Constitution with a view to keep a check on Parliaments immense power to legislate, by holding that since human rights and human dignity could not be interfered with putting all prisoners under shackles was highly improper, by holding women could not be kept for questioning in police station between dusk and dawn and they could be questioned as far as possible only by women, Police Officers, and by giving the mans date that even hardened criminals could not be inconvenienced during odd hours of night by being visited by the policemen with a view to check whether they were at home. But these progressive ideas get a severe jolt when the same Supreme Court holds that it could not help to stay the execution of an insane once a sentence had been passed against him legally. The primary function of the court is to meet out justice to the people. All the more so in criminal matters. The Court knows that someone had gone insane after sentence of death had been passed against him for having committed gruesome murders and an attempted murder, and yet it says that since there is no statute law to help him, it could do nothing in the matter especially because so many petition in the courts and also mercy petitions before the President of India had been rejected. The fact remains that an insane has been ordered to be executed by the Court. Is it what we call criminal justice in India? With respect, I feel the court should have intervened on the basis of protecting human dignity on the lines of the English common law cited above. The fact remains that an insane has been ordered to be executed by the Court. Is it what we call criminal justice in India? With respect, I feel the court should have intervened on the basis of protecting human dignity on the lines of the English common law cited above. However, if it felt that nothing could be done, the least it could do was to have recommended to the State that since the appellant petitioner had gone insane beyond a shadow of doubt, human dignity required that he should not be executed. I for one very strongly feel that executing an insane is an unpardonable sin. *ll. M. , Ph. D. Associate Processor of Law, University of Ralasthan, Jaipur .