Vs. State of Punjab  Insc 902 (7 September 2007)
V. Raveendran & B. Sudershan Reddy
APPEAL NO. 648 OF 2007 RAVEENDRAN, J.
this appeal by special leave, the common judgment of the Punjab and Haryana
High Court dated 22.12.2006 in Murder Reference No. 12 of 2005 and Criminal
Appeal No. 10-DB of 2006, affirming the conviction and sentence of death
imposed on the appellant by the Sessions Judge, Sangrur by judgment dated
7.12.2005 in Sessions Case No.25 of 2003 is under challenge.
appellant Des Raj is a retired police constable. Chand Singh, the complainant
is a distant relative of Des Raj. Des Raj and Chand Singh with their respective
families reside in adjoining houses. On 16.2.2003, both families attended the Bhog
ceremony in connection with the Birth Anniversary of Baba Ravi Dass and
returned home in the afternoon. Des Raj was fully drunk when he returned home.
At about 4 P.M., a quarrel arose between Manjit Kaur (wife of Chand Singh) and Jaswant
Kaur (wife of Des Raj), when Manjit Kaur objected to the family members of Des Raj
throwing rubbish in front of her house. On hearing the quarrel, Chand Singh's
brothers - Lal Singh and Bhagwan Singh, and Chand Singh's son - Shamsher Singh,
and nephew Tarlok Singh came out of his house. Des Raj also came out of his
house along with his three sons and two daughters-in-law. Des Raj was carrying
his licensed double barrel gun. Des Raj shouted that if the family members of Chand
Singh raised their voice, he would finish them, and fired a shot towards Manjit
Kaur, which hit the left side of her head. She collapsed and died. Shamsher
Singh, son of Chand Singh, rushed to the rescue of his mother. Des Raj fired
another shot which hit the right hand of Shamsher Singh. Shamsher Singh raised an
alarm. Bhagwan Singh and Lal Singh, the two brothers of Chand Singh, rushed to
the assistance of Shamsher Singh. Des Raj re-loaded his gun and fired at them. Bhagwan
Singh was hit on the left side of the chest and died. Lal Singh was hit on left
side of his abdomen (and died later in the hospital). Des Raj again loaded his
gun and fired towards Chand Singh which hit him on his right arm. A few pellets
also hit his nephew Tarlok Singh and a neighbourhood child Raveena. According
to the prosecution, all through this, the family members of Des Raj (his wife,
three sons and two daughters-in-law) exhorted Des Raj by shouting 'do not leave
any members of the family alive'. After the incident, Des Raj and his family
members fled from the scene.
Raj (accused No.1) and his six family members (accused 2 to 7) were charged and
tried for offences under sections 148, 302/149, 307/149 and 114 IPC. The
prosecution examined 14 witnesses. Chand Singh (PW-2) and his son Shamsher
Singh (PW-3) who were injured eye-witnesses gave a graphic account of what
transpired. After appreciating the evidence, the Sessions Judge, Sangrur by
judgment dated 7.12.2005, convicted Des Raj under section 302 IPC for the
murder of Manjit Kaur, Bhagwan Singh and Lal Singh and also convicted him under
section 307 IPC for attempting to murder Shamsher Singh and Chand Singh. After
hearing on the question of sentence, the trial court came to the conclusion
that the sentence of life imprisonment was inadequate and having regard to the
gravity of the offence, the appellant deserved sentence to death. Accused 2 to 7 who allegedly exhorted appellant, were acquitted. The trial
court was of the view that as accused 2 to 7 were not armed, and as there was no evidence of any common object to
kill Manjit Kaur and others, there was a possibility that the exhortation
attributed to Accused 2 to 7 may be only to implicate them in the crime.
reference seeking confirmation of sentence of death was registered as Murder
Reference No.12 of 2005. The appeal filed by Des Raj against his conviction and
sentence was registered as Criminal Appeal No.10-DB of 2006. The appeal filed
by the State against the acquittal of accused 2 to 7 was registered as Criminal Appeal No.670-DBA of 2006. The
revision petition filed by Chand Singh challenging the acquittal of accused 2 to 7 was registered as Cri. Revision No. 1835 of 2006. The four
cases were heard together. By common judgment dated 22.12.2006, the High Court
affirmed the judgment of the trial court, and confirmed the death sentence
awarded to Des Raj. It rejected the appeal filed by Des Raj, as also the appeal
filed by the State and the revision filed by Chand Singh. The High Court held
that on balancing the mitigating circumstance and the following aggravating
circumstances, the scales tilted in favour of death sentence :
order to impress his authority on his neighbours over a petty dispute and to
satisfy his ego, Des Raj opened fire, killing three members and injuring three
members of the family of a neighbour, and a child who was a bystander -- all
unarmed and helpless.
Premeditation was writ large in view of the fact that Des Raj brought the gun
and cartridges from inside the house, and though neither provoked, nor
instigated, continued firing by loading and re-loading the gun in order to
silence the voice of genuine protest. The only 'fault' of the hapless members
of Chand Singh's family was that they objected to the improper act of Des Raj's
wife throwing rubbish in front of their house.
Des Raj went berserk and created havoc by killing and injuring whosoever came
in front of him. The accused did not even bother that bystanders are likely to
be hit. He did not show any sense of remorse after the incident, but ran away.
High Court held that the gruesome, unscrupulous and diabolic attack on unarmed
and innocent men, woman and child, committed in a cold blooded manner by a
person who had been trained to protect the life and liberty of the people as a
Police Constable, not only shocked the judicial conscience of the court but
also shocked the collective conscience of the society.
said judgment is challenged in this appeal. The appellant does not challenge
the finding of guilt and conviction under section 302 IPC. The challenge is
restricted only to the imposition of capital punishment. The appellant drew our
attention to the various mitigating circumstances and contended that this is
not a rarest of rare case, requiring death sentence. The learned counsel for
the State countered by relying upon the aggravating circumstances listed by the
High Court. The only question that therefore arises for our consideration is
whether the courts below were justified in imposing the sentence of death.
5. In Bachan
Singh v. State of Punjab [1980 (2) SCC 684] and Machhi Singh
v. State of Punjab [1983 (3) SCC 470], this Court has
stated the principles and guidelines relating to award of death sentence. The
principles have been reiterated in several subsequent decisions including State
of Rajasthan v. Kheraj Ram [2003 (8) SCC 224], Lehna
v. State of Haryana [2002 (3) SCC 76] and Bablu v.
State of Rajasthan [AIR 2007 SC 697].
In Bachan Singh (supra), a Constitution Bench of this Court while upholding the
constitutional validity of the provision for penalty of death for murder,
indicated the broad criteria which should guide the courts in the matter of
sentencing a person convicted of murder under section 302 IPC.
we read sections 354(3) and 235(2) and other related provisions of the Code of
1973, it is quite clear to us that for making the choice of punishment or for
ascertaining the existence or absence of 'special reasons' in that context, the
court must pay due regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and mitigating factors, depends
on the facts and circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to give a separate
treatment to each of them.
many cases, the extremely cruel or beastly manner of the commission of murder
is itself a demonstrated index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the circumstances of the crime and
the circumstances of the criminal in two separate watertight compartments. In a
sense, to kill is to be cruel and therefore all murders are cruel. But such
cruelty may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that 'special reasons'
can legitimately be said to exist.
this much can be said that in order to qualify for inclusion in the category of
'aggravating circumstances' which may form the basis of 'special reasons' in
section 354(3), circumstance found on the facts of a particular case must
evidence aggravation of an abnormal or special degree.
therefore, imperative to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the onerous function
with evermore scrupulous care and humane concern, directed along the highroad
of legislative policy outlined in section 354(3), viz., that for persons
convicted of murder, life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed. "
supplied) 5.2) In Machhi Singh (supra), this Court addressed the issue of
practical application of the 'rarest of rare case' rule laid down in Bachan
every member of the community is able to live with safety without his or her
own life being endangered because of the protective arm of the community and on
account of the rule of law enforced by it. .. Every member of the community
owes a debt to the community for this protection. When ingratitude is shown
instead of gratitude by 'killing' a member of the community which protects the
murderer himself from being killed, or when the community feels that for the
sake of self- preservation the killer has to be killed, the community may well
withdraw the protection by sanctioning the death penalty. But the community
will not do so in every case. It may do so 'in rarest of rare cases' when its
collective conscience is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death penalty. The
community may entertain such a sentiment when the crime is viewed from the
platform of the motive for, or the manner of commission of the crime, or the
anti-social or abhorrent nature of the crime. ."
Court recognised that special reasons attracting death penalty may relate to
manner of commission of murder, or the motive for murder, the abhorrent nature
of the crime or the magnitude of the crime, or even the personality of the
victim. This Court gave the following illustrations (not to be considered as
Manner of commission of murder: When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse
intense and extreme indignation of the community. (Examples : setting a house
ablaze to roast alive the victim inside; subjecting the victim to inhuman acts
of torture or cruelty to bring about his death; cutting the body of the victim
into pieces or dismembering the body in a fiendish manner).
for commission of murder: When the murder is committed for a motive which
evinces total depravity and meanness.
murder by hired assassin for money or reward; or cold- blooded murder for
inheriting a property to gain control over property of a person under the
control of the murderer or vis-a-vis whom the murderer is in a dominating
position or in a position of trust; murder is committed in the course for
betrayal of the motherland).
Anti-social or socially abhorrent nature of the crime: When murder of a member
of a Scheduled Caste or minority community etc., is committed not for personal
reasons but in circumstances which arouse social wrath. Or in cases of 'bride
burning' or 'dowry deaths' or when murder is committed in order to remarry for
the sake of extracting dowry once again or to marry another woman on account of
Magnitude of the crime: When the crime is enormous in proportion. For instance
when multiple murders, say of all or almost all the members of a family or a
large number of persons of a particular caste, community, or locality, are
of victim of murder: When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a public figure generally loved and
respected by the community.
following guidelines emerging from Bachan Singh (supra) and Machhi Singh
(supra) will be of assistance to decide whether death sentence is warranted, on
the facts and circumstances of a case:
Life imprisonment is the rule and death sentence is an exception. Death
sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant facts and
circumstances of the crime.
There must be special reasons for imposing the sentence of death. Except in
gravest cases of extreme culpability, the extreme penalty of death should not
be inflicted. The circumstances of the crime should leave no alternative but to
impose death sentence even after according maximum weightage to the mitigating
circumstances. In short death penalty is warranted only in the rarest of rare
A balance-sheet of aggravating and mitigating circumstances has to be drawn up.
The circumstances of the 'offender' as also the circumstances of the 'crime'
should go into such balance sheet. Only when the aggravating circumstances
overwhelmingly outweigh the mitigating circumstances, the court should consider
the option of death penalty.
Whether the number of persons killed has a bearing on the sentence to be
imposed was considered in Rajendra Prasad v. State of U.P. [1979 (2) SCC 64]. This Court held that neither the
shocking nature of the crime nor the number of murders committed was the
criterion to determine whether death sentence should be imposed. It was held
that the special reasons necessary for imposing death penalty must not relate
to the crime as such but to the criminal. In Dalbir Singh v. State of Punjab
[1979 (3) SCC 745], the Bench which decided Rajendra Prasad, while following Rajendra
Prasad, put the matter in a somewhat better perspective. It held :
the casualties is not the main criterion for sentencing to death, nor
recklessness in the act of murder. The sole focus on the crime and the total farewell
to the criminal and his social-personal circumstances mutilate sentencing
Singh, the Constitution Bench did not agree with the decision in Rajendra
Prasad that the special reasons necessary for imposing death penalty "must
relate not to the crime as such but the criminal". It held that for making
the choice of punishment or for ascertaining the existence or absence of
special reasons, the court must pay due regard both to the crime and the
criminal. Thus the number of persons killed when coupled with the shocking
nature of other features of the crime, can certainly furnish the grounds for
choice of punishment. Even if only one person is killed, the gruesome or
shocking nature of the crime and/or the motive for the murder may make it the
rarest among rare cases deserving death penalty. On the other hand, murder of
even two or three persons may not invite death penalty where there is no
premeditation, no cruelty or torture of the victim or where the act is not
diabolic. We may in this context refer to the following observations in Lehna
is true three lives have been lost. But at the same time, the mental condition
of the accused which led to the assault cannot be lost sight of.
same may not be relevant to judge culpability, but is certainly a factor while
considering question of sentence. There is no evidence of any diabolic planning
to commit the crime, though cruel was the act. Deprived of his livelihood on
account of the land being taken away, the accused was, as the evidence shows,
exhibiting his displeasure, his resentment.
of the quarrels indicates lack of any sinister planning to take away lives of
the deceased. The factual scenario gives impressions of impulsive act and not
planned assaults. In the peculiar background, death sentence would not be
proper. A sentence of imprisonment for life will be more appropriate."
Applying the above principles, there can be no doubt that this is not a case
which calls for imposition of death sentence. This is not a murder to satisfy
any greed or lust. This is not a case involving cruelty to or torture of the
victim. This is not a case where the act is brutal, diabolic or revolting.
accused has no bad antecedents nor is a hard core criminal nor an anti- social
nor an anti-national element. The action was impulsive and without
premeditation arising out of a sudden quarrel between appellant's wife and Chand
Singh's wife. Each of the victims was shot at only once. The repeated firing by
appellant is an over-reaction of an inebriated brain to a petty issue.
hasten to add that drunkenness cannot be an excuse for any brutal or diabolic
acts. The entire incident occurred in the span of a few minutes. The repeated
loading and firing in utter disregard for life, in the circumstances, is not an
indication of extreme depravity or brutality, but of a drunken rage.
trial court and the High Court have persuaded themselves to award the death
penalty by considering only the aggravating circumstances, and to an extent
carried away by the fact that three died and four (two directly and two
indirectly) were injured. The mitigating circumstances have not been given
their due importance. On a careful balancing of the aggravating and mitigating
circumstances, we find that in spite of the gravity of the crime involving
triple murder, the aggravating circumstances noticed and enumerated by the High
Court do not outweigh, much less overwhelmingly, the mitigating circumstances.
This is not that rarest of rare case, which invites death penalty.
Learned counsel for the respondents relied on the decisions of this Court in Dayanidhi
Bisoi v. State of Orissa [2003 (9) SCC 310], Saibanna v.
State of Karnataka [2005 (4) SCC 15] and Renuka Bai
vs. State of Maharashtra [2006 (7) SCC 442] to contend that
the appellant deserved death penalty. We find that all the three decisions are
clearly distinguishable on facts. All are cases of gruesome and diabolical
murders which fell in the category of rarest of rare cases. In Dayanidhi, the
accused who was in financial difficulties, visited the house of the deceased,
enjoyed their hospitality, and during night when they were asleep, stabbed and
killed the entire host family of three (husband, wife and their three year
child) without provocation and stole the valuables. In Saibanna, the appellant
who was released on parole, while serving the sentence of life imprisonment,
suspected the fidelity of his wife and assaulted her and their minor child with
a hunting knife. He inflicted as many as 21 injuries on his wife and six
injuries on his minor child. As a consequence, both his wife and daughter died.
In Renuka Bai, the appellant along with two others, kidnapped several minor
children, used them for committing thefts and other illegal activities and killed
them when they were no longer useful. As many as 13 children were kidnapped and
nine out of them were killed during between 1992 and 1996. The facts of those
cases are no way comparable to this case.
We, therefore, allow this appeal in part. While confirming the conviction under
section 302 IPC, we modify the sentence of death imposed on the appellant to
one of life imprisonment. The conviction and sentence under section 307 IPC