PETITIONER: <NAME> Vs. RESPONDENT: THE ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS. DATE OF JUDGMENT13/01/1981 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. FAZALALI, SYED MURTAZA CITATION: 1981 AIR 746 1981 SCR (2) 516 1981 SCC (1) 608 1981 SCALE (1)79 CITATOR INFO : RF 1981 SC2041 (9) D 1982 SC 710 (92,93) D 1982 SC1029 (14) MV 1982 SC1325 (16,36,75) R 1982 SC1473 (11) E&D 1985 SC1618 (9) R 1986 SC 180 (39,42) RF 1986 SC 847 (12) RF 1987 SC 990 (16) R 1991 SC 101 (239) RF 1991 SC1902 (24) RF 1992 SC1858 (10) ACT: Right of the detenu under Conservation of Foreign Exchange & Prevention of Smuggling Activities Act , to have interview with a lawyer and the members of his family- Section 3(b)(i) & (ii) read with rule 559A and 550 of the Punjab Manual of the Superintendence and Management of Jails-Whether violates Articles 14 and 21 of the Constitution and hence invalid-Distinction between preventive detention with punitive detention-Constitution of India 1950 Article 21 , scope of. HEADNOTE: Allowing the writ petition, the <ORG> ^ HELD : (1) While considering the question of validity of conditions of detention courts must necessarily bear in mind the vital distinction between preventive detention and punitive detention. Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while preventive detention is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. [523 A-B] (2) The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and in many countries it is not allowed to be exercised except in times of war or aggression. The Indian Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Article 22 in clauses (4) to (7) deals specifically with safeguards against preventive detention and enjoins that any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation, Article 21 also lays down restrictions on the power of preventive detention. [523 B-D] Article 21 as interpreted in <NAME> case requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the <ORG> to decide in the exercise of its constitutional power or judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention must, therefore, pass the test not only of Article 22 but also of Article 21. But, despite these safeguards laid down by the Constitution and creatively evolved by the <ORG>s. the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished 517 and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused, inasmuch as the preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited. Therefore, the "restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal". [524A- <CITATION> ,  1 SCC 248; M.O. Hoscot v. State of Maharashtra,  1 SCR 192; <CITATION> ,  1 SCC 81; <CITATION> ,  1 SCR 392; <CITATION> ,  2 SCR 557, referred to. <CITATION> ,  3 SCR 574, followed. 3. The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. A prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the <ORG> will immediately spring into action and run to his rescue. [525 B-C, 526 G-H, 527 <CITATION> ,  1 SCR 392; <CITATION> ,  2 SCR 557, <CITATION>  1 SCR 702; <CITATION> ,  2 SCR 24, followed. <NAME> Case, 417 US 817: 41 Lawyers Edition 2nd 495; <NAME>, 41 Lawyers Edition 2nd 935, quoted with approval. (4) While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges. This principle applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. [527 C-D, 528 <CITATION> . 54 Lawyers Edition 801, quoted with approval. (5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. 518 Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article may be total or partially neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21 , whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. Therefore any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21. [528 D, G-H, 529 A] <NAME> v. State of Uttar Pradesh,  1 SCR 232, followed. <NAME> v. Illinois  94 US 133, referred to. <CITATION> ,  2 SCR 557, applied. (6) The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Therefore, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruelty, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Article 14 and 21. [529 B-F] (7) There is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore, when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore, as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and 519 friends can be upheld as constitutionally valid under Article 14 and 21 , unless it is reasonable, fair and just. Considered from the point of view also of the right to personal liberty enshrined in Article 21 , the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression "personal liberty" occurring in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". Therefore, personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21. [530 <CITATION> ,  1 SCC 248, applied. (8) Sub-clause (ii) of clause 3(b) of the Conditions of Detention Order is violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. When an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends, once in a week under Rule 550, sub-clause (ii) of clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, is unreasonable and arbitrary, particularly when a detenu stands on a highest pedestal than an under-trial prisoner or a convict. A detenu must be permitted to have at least two interviews in a week with relatives and friends and it should be possible for relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. Even independently of Rules 550 and 559A, of the Punjab Manual for the Superintendence and Management of Jails, the present norm of two interviews in a week for prisoners furnishes a reasonable and non-arbitrary criterion. [530 F-H, 531 <CITATION> ,  3 SCR 574, applied. (9) Sub-clause (i) of clause 3(b) of the Conditions of Detention Order regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Article 14 and 21 and therefore unconstitutional and void, It would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. The interview need not necessarily take place in the presence of a nominated officer of Customs/ Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, than such officer and if his presence cannot be so secured, 520 then any other Jail official may, if thought necessary, watch the interview but in a month to a detenu. When an under-trial prisoner is granted the facility [532C-F] (10) The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filling a writ petition or prosecuting any claim or proceeding, civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. [531C-E] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3042 of 1980. (Under Article 32 of the Constitution.) <NAME> (Dr.) and <NAME> for the Petitioner.

<NAME> and <NAME> for the Respondents Nos. 1-2.

The Judgment of the Court was delivered by <NAME>, J. This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act ) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act. She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a <ORG> Officer nominated by the Collector of <ORG>. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no <ORG> Officer nominated by the Collector of <ORG> remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of clause 3(b) sub-clauses (i) and

(ii) of the Conditions of Detention laid down by <ORG> under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA Act. These two sub-clauses of clause 3(b) provided inter alia as under:

"3. The conditions of detention in respect of classification and interviews shall be as under:-

(a) ..........

(b) Interviews: Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under:-

(i) Interview with legal adviser:

Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who sponsors the case for detention.

(ii) Interview with family members:

A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu .........."

The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order and praying that the Administrator of the Union Territory of Delhi and the Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub-clauses.

The principal ground on which the constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when under-trial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that sub- clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under- trial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub-clause (i) and (ii) of cl. 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.

Now it is necessary to bear in mind the distinction between 'preventive detention' and punitive detention', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the <ORG> and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Art. 22 , there is also Art. 21 which lays down restrictions on the power of preventive detention. Until the decision of this <ORG> in <NAME> v. <ORG>, a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Art. 21. But in <NAME> case (supra), this <ORG> for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This <ORG> expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in <NAME> case became the starting point-the-spring-board-for a most spectacular evolution the law culminating in the decisions in <NAME> v.

State of Maharashtra,, <NAME> case, the first <NAME> case and the second <NAME> case. The position now is that Art. 21 as interpreted in <NAME> case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the <ORG> to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22 , but also of Art. 21 and if the constitutional validity of any such law is challenged, the <ORG> would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the <ORG>s, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this <ORG> in <CITATION> "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."

The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in <ORG>. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate ? The answer to this question is no longer res integra. It has been held by this Court in the two <NAME> cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration." The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two <NAME> cases, this position was impliedly accepted in <CITATION> and it was spelt-out clearly and in no uncertain terms by <NAME>, J. as he then was, in <CITATION> :

"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."

This statement of the law was affirmed by a Bench of five Judges of this <ORG> in the first <NAME> case (supra) and by <NAME>, J. speaking on behalf of the <ORG> in the second <NAME> case (supra). <NAME>, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this <ORG>'s writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the <ORG> armed with the Constitution."

<NAME>

It is interesting to note that <ORG> of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice <NAME> struck a humanistic note when he said in <NAME> case :

"Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process."

So also in <NAME> case, Mr. Justice <NAME> made the same point in emphatic terms.

"But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country."

Mr. Justice <NAME> reiterated his thesis when he asserted:

"Every prisoner's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards."

Mr. Justice <NAME> also expressed himself clearly and explicitly in the same terms:

"I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection."

What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the <ORG> which is to use the words of <NAME>, J., "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.

We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub- clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in <NAME> case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just. Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by <ORG> in <NAME> v. <ORG>.

"Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but- its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice <NAME>, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."

This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In <NAME> v. State of Uttar Pradesh <NAME> quoted with approval the following passage from the judgment of <NAME> in <NAME> v. Illinois to emphasize the quality of life covered by Article 21:

"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first <NAME> case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21 , whether such deprivation be permanent or temporary and, furthermore, depriva-

tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.

The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21 , for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty' occurring in Article 21 has been given a broad and liberal interpretation in <NAME> case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.

Now obviously when an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non-arbitrary, particularly when a detenu stands on a higher pedestal than an under-trial prisoner or a convict and, as held by this <ORG> in <NAME> case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold sub-clause

(ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non-arbitrary.

The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of <ORG> or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.

We are therefore of view that sub-clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Arts. 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the <ORG>, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of <ORG> but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other <ORG> official may, if thought necessary, watch the interview but not as to be within hearing distance of the detenu and the legal adviser.

We accordingly allow the writ petition and grant relief to the extent indicated above.

V.D.K. Petition allowed.


JUDGMENT <NAME>

1. The three appellants, who are brothers, were tried by the learned Sessions Judge, Patiala for the murders of <NAME> and <NAME> and the appellants' own brother, <NAME>.

2. <NAME> was convicted under Section 302, Penal Code for the murders of <NAME> and <NAME> and under Section 302 read with Section 34 , Penal Code for the murders of <NAME> and <NAME> and sentenced to death on each count.

3. <NAME> was convicted under Section 302 , Penal Code for the murders of <NAME> and <NAME> and under Section 302 , read with Section 34 Penal Code for the murders of <NAME> and <NAME> and sentenced' to death on each count. He was further convicted under Section 307 , Penal Code and sentenced to 7 year' rigorous imprisonment.

4. <NAME> was convicted under Section 302 read with Section 34 , Penal Code for the murders of <NAME>, <NAME> and <NAME> and sentenced to death. He was further convicted under Section 326 Penal Code for causing grievous hurt to <NAME> and <NAME> and sentenced to seven years' rigorous imprisonment.

5. On appeal, <ORG> and Haryana upheld the convictions of all the accused on all the courts. The capital sentences awarded by the trial court to <NAME> and <NAME> were confirmed. <NAME> death sentence, however, was commuted to that of life imprisonment.

6. The convicts have come up to this Court in appeal by special leave granted under Article 136 of the Constitution.

7. Four or five years before the occurrence in question, <NAME> and <NAME> deceased had purchased, in the name of their sons, land from one <NAME>, a collateral of the appellants. The vendee, however, were unable to get possession of the land which was with the appellants. The vendees instituted a suit against the appellants for possession of the land and obtained a decree. The appellants, went up in appeal against that decree. The appeal was pending when the occurrence in question took place.

8 On Diwali day, the 29th October, 1970, <NAME> (P.W. 6), his brother, <NAME> deceased, and their nephew, <NAME> deceased, were present at their tubewell. <NAME> (P.W. 4), a resident of the neighbouring village, Mirpur, also came there to purchase a she-buffalo, The visitor wanted to milk the animal which was present there. At about 5 p.m <NAME> deceased, another brother of <NAME>, came and reported that on his way from Chanarthal Kalan, he was taunted by <NAME> and there was a sharp exchange of hot words between them with reference to the deceased's attempt to recover possession of the land. In the meanwhile, appellants <NAME> and <NAME>, armed with guns, <NAME> appellant, <NAME>, deceased and two unknown persons, carry gandasas, approached the tubewell. <NAME> shouted that they would settle the scores once for all. Thereupon <NAME> <NAME> and <NAME> deceased got hold of a Takwa, Gandasia and lathi, respectively. <NAME> was unarmed. Then, <NAME> fired his gun towards the complainant party. The shot did not find its mark. <NAME> said that they could not stand against guns. Realising that discretion was the better part of valour, the complainant party ran toward the tubewell of <NAME>, hotly persuaded and fired upon from the appellants' side. At this juncture, <NAME>, deceased and his son, <NAME> (P.W. 5) who were at their tubewell about 80 karame away, also reached there. They were unarmed. They in association with <NAME> P.W. tried to dissuade the appellants. <NAME> shouted that they should stay away if they wanted to be alive. The appellants encircled the complainant party. <NAME> fired a shot dropping <NAME> to the ground. <NAME> then inflicted gandasa blows on <NAME>. <NAME> deceased surged ahead to rescue this father when a shot fired by <NAME> felled him to the ground. At the same time, <NAME> belaboured <NAME> deceased with a gandasa. <NAME> unsuccessful tried to ward off the blows with the weapon he was carrying. <NAME> fired his gun towards <NAME>, where-upon both <NAME> and <NAME> dropped dead. <NAME> (PW 6) took cover behind <NAME> deceased when the pellets from a shot fired by <NAME> hit <NAME>, <NAME> and <NAME>. <NAME> fell down and expired. <NAME> inflicted injuries with a gandasa on <NAME> The appellants and their two unknown companions then ran away leaving <NAME>, <NAME>, <NAME>, <NAME> and <NAME> dead at the spot. <NAME> died when he was being removed by <NAME> to the Hospital at Chanarthal Kalan. <NAME> and <NAME> stayed behind to guard the dead-bodies.

9. Assistant Sub-Inspector, <NAME>, S.H.O., <ORG>, Mulepur was in village Chanarthal Kalan where he learnt that a fight had taken place at Chinarthal Khurd. He hastened to Chinarthal Khurd and recorded the statement of <NAME> between 7.30 and 8.30 p.m. He then sent the statement to the <ORG>, where, on its basis, a case was registered same day at 9.35 p.m.

10. In their examination under Section 342 , Criminal Procedure Code , <NAME> and <NAME> appellants plainly denied the prosecution case and pleaded alibi. <NAME>, while admitting his arrest on October 30, 1970, alongwith the gun minus the cartridges, at the Rajendra Hospital, Patiala wherein he was lying as an indoor patient in an injured condition, set up this counter-version at the trial.

My mother was ill and I had gone to the village to enquire about her health on Diwali day. I had called <NAME> accused to my house at Khandebad where I am posted. He was to remain with my family and look after my she-buffalo. He had an injury and could recover as I had sufficient milk for him. On Diwali day I and <NAME> were going to place Divas on our tube-well. On the way there are some graves and a pirkhana. We placed a Diva there and were going towards our tube-well. On that way, 10 or 12 persons attacked us. One of them caused two injuries on my head. I was given one blow with a Neja like red in my abdomen. I fell down semi-conscious. Then they attacked <NAME>. I heard two or three gun-fires. When got up none was present. <NAME> was lying dead. A gun was lying beside him. I got hold of that gun and came home as I was afraid of others. I requested <NAME> son of <NAME> to report the matter to the police as <NAME> had been killed. <NAME> had influence with the police and the report was not recorded. My brother-in-law brought me to Patiala.

11. The mainstay of the prosecution case was the testimony of the three eyewitnesses, <NAME> (P.W. 4), <NAME> (P.W. 5) and <NAME> (P.W. 6).

12. learned Counsel for <NAME>, appellant raised two legal objections :

13. The first is that the appellants were charged in respect of offences under Sections 148 and 302 read with Section 149 , Penal Code , but they have been convicted under Section 302 read with Section 34 , Penal Code though there was no specific charge under Section 34 , Penal Code against them. This irregularity amounts to an illegality and vitiates the trial. Reliance has been placed on the decision of this Court in <CITATION> . .

14. The second is that <NAME> was simultaneously but separately tried by the Sessions Judge for an offence under Section 27 , Arms Act , relating to the possession of this very gun, and was acquitted. No appeal was filed by the <ORG> against that order of acquittal, which, in consequence, became final, and on the principle of issue estoppel, the court was precluded in the murder case from holding that <NAME> was in possession of this gun. In support of this argument, reference has been made to <CITATION> ; <CITATION> . (1969) 2 SCR 1004. He has also cited. <CITATION> .

15. On merits, Messrs. <NAME> and <NAME>, learned Counsel for the appellants have addressed lengthy arguments, and taken us through the record. It is urged that the account given by P.Ws. 4, 5, and 6 was wholly unreliable for these reasons : -

(a) Their evidence was contradicted by medical testimony and thus demonstrated to be false in regard to the role assigned to <NAME> in the assault, and the cause of <NAME> death.

(b) They failed to give any explanation as to how <NAME> appellant received serious injuries on vital parts of his person;

(c) The story of firing while chasing and then encircling the deceased persons and the use of two guns by <NAME> and <NAME> appellants was inherently improbable because for reloading the guns the gun-men had to halt and break the chase for some moments, during which the chased could elude the pursuit and run away beyond the range of the guns. Moreover, the circumstance that most of the gun-shot injuries were located on the front side of the victims, the non-recovery of any gun from <NAME>, the recovered double-barrelled gun being a licensed weapon of <NAME>, the participation of <NAME> and his death in the encounter, the recovery of only three 12-bore empties from the scene of occurrence, the certainty of one and the possibility of the other two of which having been fired through the 12 bore gun of <NAME>, had been established by the evidence of Mr. <NAME>, Ballistic Expert (CW1), the gun-shot injuries on all the five persons, namely <NAME>, <NAME>, <NAME> deceased, <NAME> PW 4 <NAME> PW 5 (according to the own showing of the prosecution) being the result of the three gunfires-all, are tell tale circumstances pointing to the conclusion that only one gun had been used.

(d) These witnesses were highly interested in the prosecution. <NAME> was, in addition, inimical towards the appellants on account of the dispute over land. <NAME> was a chance witness and the reason given by him for his presence in the company of the complainant party was hardly convincing. All the three suffered injuries together in the encounter.

(e) In the F.I.R., two unknown persons also, were stated as associates of the appellants but at the trial, these 'unknowns' were relegated to a distance as silent spectatOrs. This was deliberately done to implicate, if possible, two more persons of the family of the appellants. An attempt has been made to rope in as many adult brothers as possible. Two of them are employed and settled elsewhere one was killed in this accurrence, and there, have been 'bagged' and got convicted. In the alternative, it is contended that there was no reason to disbelieve <NAME> plea of self-defence viz., that they were first attacked by the party of Sardara deceased with blunt and sharp-pointed weapons, particularly when the eyewitnesses gave no explanation, whatever, of the injuries of <NAME>, and offered a false explanation as to who had killed <NAME>. The Sessions Judge and <ORG>-proceeds the argument overlooked the earlier statement of <NAME> made in <ORG> which was more specific, and thus misdirected themselves to hold that the plea of self defence was vague and groundless. According to the Counsel, another grave error committed by the courts below was that they completely ignored Dr. <NAME>'s opinion, elicited in cross examination, that the injury to <NAME> could be caused with a sua. This omission, it is maintained, led the courts to reach the preverse finding that it was <NAME> who had shot dead his own brother, <NAME>. The surrounding circumstances including the recovery of Divas from the dead-body of <NAME>, and the place of occurrence being near the grave of the Pir on which Divas are lit by villagers on Diwali Day, says the Counsel, had lent assurance to the defence version.

16. It is further urged that <NAME> appellant had disclosed his shoulder in a car accident about one month before the occurrence, and he was physically unfit to wield a gandasa. The courts below have grievously erred in disbelieving the evidence of D.W.1, Dr. <NAME> on this point.

17. Lastly, it is 'urged that even if the circumstances brought on record, were insufficient to down-grade the offence, they were enough to mitigate the capital sentences.

18. In reply, Mr. <NAME>, learned Counsel for the <ORG> contends that in exercise of its special jurisdiction under Article 136 of the Constitution, this <ORG> does not, as a rule of practice, reappraise the evidence and disturb concurrent findings of fact recorded by the courts below, unless those findings are clearly unreasonable or perverse. Present case, according to Counsel, is not of such kind as would warrant interference by this <ORG>. The courts below, it is maintained, have rightly believed P.Ws. 4, 5 and 6, who were all injured witnesses and had rejected the defence version for good reasons. The witnesses were under no obligation to explain the injuries of <NAME> which might have been fabricated or received in any other incident. It is stressed that defence had not put to any of these witnesses in cross-examination that <NAME> had received the fatal injury with a sua; consequently the courts below were not wrong in accepting the prosecution story that <NAME> was killed by a shot fired by <NAME> appellant.

19. Regarding the legal objections, Mr. <NAME> points out that they were not raised in the courts below and should not therefore be entertained. On merits, also, submits the Counsel, they are not sustainable. Mr. <NAME> further opposes commutation of the death sentences of <NAME>, and <NAME>stressing that this is a case in which four deaths were caused.

20. The preliminary objections raised by the learned Counsel for the appellants are untenable. They were not raised in the courts below and are liable to be rejected on that score alone. Nor do we find any substances in them.

21. <NAME> Case (supra) relied on by the appellants was explained by this Court in <CITATION> . It was pointed out that the term 'illegality' used in <NAME> Case must be read with reference to the facts of that case where the court found prejudice. The Code does not use the word 'illegality', nor defines 'irregularity' and illegality can only mean an incurable illegality, incurable because of prejudice leading to a failure of justice. It was stressed (per <NAME>, Acting C.J. and <NAME>, J.) that the object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdictions. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the trial is not invalidated by the mere fact that the charge was not formally reduced to writing. The essential part of this part of the law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. It was further observed that it is not correct to say that Section 535 of the Code has no application to an accused in which there is no charge at all. Or, that it cannot apply except where Sections 237 and 238 apply or that it is governed by Section 233 .

22. The ratio of <NAME>'s case is a complete answer to the first contention of the learned Counsel for that appellants. All the circumstances showing concert and participation in the joint criminal action by all the three appellants were duly put to them in their examination, under Section 342 , Cr.P.C . The appellants were fully aware of the matter with which they were charged. No question of prejudice arises. The first objection thus stands over-ruled.

23. Nor is the doctrine of issue estoppel enunciated by this Court in <NAME> Case (supra) applicable to the facts of this case. Firstly, the trial in which the appellants were tried for the murders, was registered as Sessions Trial No. 55 of 1971, while the one under Section 27 , Arms Act was numbered as Sessions Case No. 56 of 1971. The serial order in which the trials were numbered would indicate that the main case was decided first, and that under the Arms Act , subsequently. Secondly, at both the trials, in his examination under Section 342 . <NAME>, appellant had admitted that the gun in question, was recovered from his possession at <ORG>, Patiala. Indeed, in the case under the Arms Act , the Trial Judge did not record any finding that <NAME> was not in possession of the gun. He acquitted him, perhaps erroneously, on the sole ground that the intention to use the gun or allow its use for any unlawful purpose had not been proved, which is an essential ingredient of an offence under Section 27 , Arms Act .

24. We would, therefore, negative this legal objections, also. At this stage it will be well to remember that this is an appeal by special leave under Article 136 of the Constitution, and in the exercise of its special jurisdiction under that Article, this <ORG> does not normally disturb concurrent findings of fact or review the evidence unless grave and exceptional circumstances exist and there has been a failure of justice. So far as the conviction of the appellants for the murders of <NAME>, <NAME> and <NAME> is concerned, no circumstances of such gravity exist as would warrant an interference by this <ORG>.

25. We, therefore, do not propose to deal with those contentions which though noted earlier in this judgment out of judicial courtesy-challenge the propriety of the appellants' conviction for these three murders.

26. Neverthless, the findings of the courts below are manifestly vulnerable and unsound in regard to two matters : (1) The conviction of the appellants for the murder of <NAME>, and (ii) the award of the capital sentence to <NAME> and <NAME>. We will therefore reopen the case and reappraise the evidence only to the exteat necessary for an examination of these two matters.

27. Regarding (i), the prosecution story propounded by P.Ws. 4, 5 & 6 was that a pellet from a gun-shot fired by <NAME> at <NAME> deceased, had pierced through the neck of <NAME> and caused his death.

28. The plea of <NAME> before the committing Magistrate was :

...there took place a chance encounter with <NAME> party. I was injured grievously and my brother <NAME> fired at them, and <NAME> was killed by a sua blow.

29. The trial court seems to have overlooked this statement and confined itself to the less specific statement of <NAME> given at the trial. The fact remains that at the earliest, in <ORG>, the, appellant clearly alleged that <NAME> had been killed with a sua by the complainant party. This version was put to Dr. <NAME>, who had performed the autopsy of <NAME>, in cross-examination, even in <ORG>. The Doctor replied that he could not rule out the possibility of these injuries having been caused with a sau. This opinion was not discussed by the trial court. The learned Judges of <ORG> also did not advert to it. Although in examination-in-chief, the Doctor had said that these injuries were 'likely to be caused by a fire-arm, the circumstances on record definitely point towards the conclusion that the injury was probably caused with a sharp-pointed weapon and not with a gun. The injuries were triangular. The dimentions as noted by the Doctor were.

(i) 3/4" X 1/2" X 3/4" on the front of the neck in the mid-line about 11/2" below the chin;

(ii) Lecerated wound 1 X 1/2 X 1/2 on the back of the neck about 1" below the hair line.

30. A gun-shot wound of entry caused by a single pettle or ball is ordinarily circular or oval in shape. If these injuries were the result of a gunshot fired from close range, with all the pellets piercing en mass through the neck, there should have been scorching, blackening and tattooing in and around the wound of entry. The wadding or round cardboard pieces or pellets should have been found inside or outside the wound near the body. Nothing of this kind was found. Furthermore, the very story of <NAME> firing at <NAME>, but instead hitting his own brother was improbable. According to the prosecution, <NAME> was then interlocked in a struggle with <NAME>. If that was so, there should have been some gunshot injury on <NAME>. But the Doctor did not find any such injury of him.

31. The above negative and positive circumstances are tell-tale. Taken in conjunction with the Doctors' opinion given in cross-examination, they probabilise the defence version that the injuries to <NAME> were caused with a sharp pointed weapon - and not with a firearm - by the complainant party.

32. We have therefore, no hesitation in holding that the learned Judges of <ORG> were in error in upholding the conviction of the appellants for the murder of <NAME>, merely on the basis of what they termed "plausible explanation" rather than positive and convincing proof given by the prosecution. We would therefore, set aside that conviction.

33. We now take up matter No. (ii), It will bear repetition that from a combined reading of the statements of <NAME>-one made in <ORG> and the other at the trial, it was clear that the plea set up by him was one of self-defence. In substance, his version was that he and <NAME> were innocently going to light Divas on the grave of Muslim Pir when a chance encounter took place with <NAME> and party. '<NAME> party' attacked & inflicted injuries to <NAME> with a neza like iron rod that is, a sharp-pointed weapon. <NAME> thereupon, fired three shots with his 12-bore licensed gun at the complainant party before he was killed by a member of that party with a sua. This defence version was substantially put to P.Ws. 4, 5 and 6 in cross-examination. They denied it flatly. But there was other evidence, circumstantial and direct, which shows that the occurrence was not a one-sided affair. Indeed, <NAME> and his companion witnesses admitted that <NAME> deceased was carrying a takava, <NAME> a gandasa, and <NAME> a stick. The investigating officer (P.W. 13) found two blood-stained gandasas lying near the corpse of <NAME>, and a kulhari and a Dahi near the dead body of <NAME>.

34. Dr. <NAME>, P.W. 3, examined <NAME> appellant in <ORG> Patiala at 6 a.m. on October 30, 1970 and found these injuries on his person.

1. A stab wound 1.5 cm. x 1.2 c.m. on the front of the chest along side the right sternal margin 13 cm. below the superior sternal notch. The shirt and banian were found thrust into the wound and could not be pulled out by ordinary pressure. Consequently, the margins of the wound could not be exactly defined.

2. A lacerated longitudinal wound on the scalp 3 cm. x 0.5 cm. almost in its middle.

35. Injury No. 1, in the opinion of the Doctor, had been caused with a sharp-pointed weapon and injury No. 2 with a blunt weapon.

36. We are not prepared to believe that these serious injuries, located as they were on vital parts of the body, could be fabricated or self-suffered. The fact that certain Divas (earthen lamps) were found with <NAME> deceased and the occurrence took place near the grave of a Muslim Pir does lend some support to the argument that the occurrence might not have been pre-planned. Possibly, it was a "chance-encounter" or a sudden development.

37. It is noteworthy that the prosecution has not given any explanation, whatever, of the injuries of <NAME> The conclusion is therefore unescapable that there was a tight between two armed parties the three appellants on one side and the numerically superior party of <NAME> on the other. It was in that combat that <NAME> appellant was injured and <NAME> killed by the complainant party, and the other deceased persons by the opposite party (the appellants). Though the appellants had failed to show that the party of <NAME> deceased were the aggressors, yet, on the basis of the material on record, every possibility of the gun fire having been opened after <NAME> and <NAME> had been assaulted, could not be ruled out. Inter alia, <NAME>'s exhortation to his armed companions that they could not stand against guns, was a pointer towards such a possibility.

38. The above circumstances, although insufficient to make out a plea of private defence or to palliate, the offence, could legitimately be taken into account in choosing between the sentence of life or of death Yet another supervening factor which by the sheer weight of compassion tilts the scales of justice in favour of life rather than extinguishing it, is that the dread of impending execution has been brooding over the head of these condemned prisoners for an excruciatingly long period. They were sentenced to death in 1971. We are now in 1974.

39. In the light of the above discussion, we would partly allow these appeals, set aside the conviction of the appellants for the murder of <NAME>, and, while maintaining their convictions on remaining counts, commute the death sentences of <NAME> and <NAME> appellants on the capital charges, to that of imprisonment for life, each. The sentences on all the counts shall run concurrently.