State of Haryana  Insc 28 (22 January 2002)
Shah, B.N. Agrawal & Arijit Pasayat
(hereinafter referred to as accused) was awarded "Sentence of Death"
by the learned Sessions Judge, Sonepat which has been confirmed by the Punjab
& Haryana High Court. Accusations against him were that he took away the
lives of his mother, brother and sister-in-law. It was also alleged that he
caused injury on his father Suraj Mal (PW-6) and nephew Chand (PW-7). He was tried
for allegedly committing offences punishable under Sections 302, 458 and 324 of
the Indian Penal Code 1860 (in short 'IPC'), was found guilty and accordingly
convicted. Corresponding sentences imposed were sentence of death, 4 years and
6 months respectively. The sentences were directed to run concurrently.
version sans unnecessary details is as follows :- Suraj Mal (PW-6) had two sons
i.e. the accused and Jai Bhagwan (hereinafter referred to the deceased by that
name) and a younger brother Dariya Singh. The accused and deceased-Jai Bhagwan
were residing separately. Suraj Mal (PW-6) owned 10 acres of land and had given
2 acres to the accused for the purpose of cultivation. But the accused who was
a person of bad habits and a drunkard wasted time in useless pursuits and did
not pay any attention to cultivation. He tried to alienate the land that was
given to him by his father. This led to rethinking by Suraj Mal (PW-6), who
took back the land. This led to serious disputes among the members of the
family and there were frequent quarrels. On August 5, 1998, deceased and his wife, Saroj were
sleeping on the roof of the house. Suraj Mal (PW-6), his wife Manbhari, their
grandsons Chand (PW-7) and Wazir were sleeping in the courtyard. After mid-night
Suraj Mal (PW-6) heard a noise from the roof of the house and he switched on
the electric light. Chand, Wazir and Manbhari woke up and they rushed up stairs
and found the accused armed with a Gandasa inflicting blows on both deceased Saroj
and Jai Bhagwan. After causing injuries to these two, the accused turned
towards Suraj Mal (PW-6) and others; but they ran down the stairs screaming in
fear. The accused followed them and after pushing Manbhari to the ground
inflicted blows on her neck and when PW-6 and PW-7 tried to intervene, he also
inflicted blows on both of them. Then he ran away from the spot. PW-6 found
that his wife had already succumbed to her injuries. So was the case with his
son and daughter-in-law. Next morning, report was lodged at the police station
and investigation was undertaken. On completion of investigation, charge-sheet
was placed and the accused was charged for offences punishable under Sections
302/458/324 of the IPC. The accused pleaded innocence. The Trial Court relied
on the evidence of PW-6 and PW-7 who were injured eye-witnesses and found the
accused guilty of the aforestated offences. After hearing on the question of
sentence, he awarded death sentence as noted above. The matter was submitted to
the Punjab & Haryana High Court for confirmation of the death sentence in
terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the
'Code'). The High Court held that the judgment suffered from no infirmity to
warrant any interference. Accordingly, the reference was accepted and the
appeal filed by the accused against the conviction and sentence was dismissed.
support of the appeal before this Court, learned Counsel submitted that both
the Trial Court and the High Court ignored a very significant fact that the
evidence on which prosecution rested, its version was that of relatives. There
was admitted hostility, rendering the same suspect. The injuries which were of
serious nature on the accused were not explained. That added to vulnerability
of prosecution version. Finally, it was submitted that this is not a case which
belonged to the category of "rarest of rare" to warrant death
sentence. The non application of mind according to the learned Counsel is
evident from the fact that accused has been treated to be a trespasser in his
own house, for holding him guilty of offence punishable under Section 458 of
IPC. There is no discussion whatsoever as to how ingredients of that Section
reply, learned counsel for the State of Haryana submitted that there is no probation on conviction being not possible
on the evidence of relatives. Additionally, mere non-explanation of injuries,
if any, on the accused cannot be a ground for disbelieving prosecution version.
The brutal nature of the assaults which resulted in loss of three valuable
lives is evident from the nature of injuries noticed on postmortem and on
examination of the injured witnesses. In essence, submission was to the effect
that no interference is called for in this appeal.
shall first deal with the contention regarding interestedness of the witnesses
for furthering prosecution version. Relationship is not a factor to affect
credibility of a witness. It is more often than not that a relation would not
conceal actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In such cases,
Court has to adopt a careful approach and analyse evidence to find out whether
it is cogent and credible.
Singh and Ors. vs. The State of Punjab (AIR 1953 SC 364), it has been laid down
as under :
witness is normally to be considered independent unless he or she springs from
sources which are likely to be tainted and that usually means unless the
witness has cause, such as enmity against the accused, to wish to implicate him
falsely. Ordinarily, a close relative would be the last person to screen the
real culprit and falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for enmity, that there is a tendency
to drag in an innocent person against whom a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping generalization.
case must be judged on its own facts. Our observations are only made to combat
what is so often put forward in cases before us as a general rule of prudence.
There is no such general rule. Each case must be limited to and be governed by
its own facts".
above decision has since been followed in Guli Chand and Ors. vs. State of
Rajasthan (AIR 1974 SC 276), in which Vadivelu Thevar vs. The State of Madras (AIR 1957 SC 614) was also relied
also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose J., it was observed:-
"We are unable to agree with the learned Judges of the High Court that the
testimony of the two eye- witnesses requires corroboration. If the foundation
for such an observation is based on the fact that the witnesses are women and
that the fate of seven men hangs on their testimony, we know of no such rule.
If it is grounded on the reason that they are closely related to the deceased
we are unable to concur. This is a fallacy common to many criminal cases and
one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v.
State of Rajasthan', AIR 1952 SC 54 at p. 59 (A). We find, however, that it
unfortunately still persists, if not in the judgments of the Courts, at any
rate in the arguments of counsel".
in Masalti vs. The State of Uttar Pradesh (AIR 1965 SC 202), this Court
observed:- "But it would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only on the ground that it is
evidence of partisan or interested witnesses. The mechanical rejection of such
evidence on the sole ground that it is partisan would invariably lead to
failure of justice. No hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has to be cautious in dealing
with such evidence; but the plea that such evidence should be rejected because
it is partisan cannot be accepted as correct." To the same effect is the
decision in State of Punjab vs. Jagir Singh, Baljit Singh and Karam
Singh (AIR 1973 SC 2407).
of PWs 6 and 7 at the site of occurrence is natural. They were inmates of the
house, and therefore no suspicion as suggested by the accused, regarding their
presence can be entertained. Merely because there was some hostility between
accused and PWs 6 and 7, it is unbelievable that they would shield the actual
culprits to falsely implicate the accused. Their testimony has not been shaken
in spite of incisive cross- examination. On the contrary, its credibility has
been enhanced because of their acceptance of the fact regarding assault on the
accused. The plea that deceased Jai Bhagwan and Suraj Mal (PW-6) had many
enemies because of their questionable credentials, and they may be the real
assailants is too shallow to warrant acceptance.
the legal position as analysed above, there is no force in the plea that
evidence of PWs 6 and 7 is liable to be discarded merely because they were
relatives of the deceased persons.
rightly submitted by the learned Counsel for the accused - appellant, there is
no finding recorded by the Courts below as to how ingredients of the offence
punishable under Section 458 IPC exist. That being the position, conviction for
the said offence is set aside and consequentially, the sentence. In view of the
unimpeached evidence of the injured witnesses of PW-6 and PW-7, the conviction
for offence punishable under Section 324 IPC does not require any interference.
other question of vital importance is whether death sentence is the appropriate
one. Section 302, IPC prescribes death or life imprisonment as the penalty for
murder. While doing so, the Code instructs the Court as to its application. The
changes which the Code has undergone in the last three decades clearly indicate
that Parliament is taking note of contemporary criminological thought and
movement. It is not difficult to discern that in the Code, there is a definite
swing towards life imprisonment. Death sentence is ordinarily ruled out and can
only be imposed for 'special reasons', as provided in Section 354(3). There is
another provision in the Code which also uses the significant expression
'Special reason'. It is Section 361. Section 360 of the 1973 Code re-enacts, in
substance, Section 562, of the Criminal Procedure Code, 1898 (in short 'old
Code'). Section 361 which is a new provision in the Code makes it mandatory for
the Court to record 'special reasons' for not applying the provisions of
Section 360. Section 361 thus casts a duty upon the Court to apply the
provisions of Section 360 wherever, it is possible to do so and to state
'special reasons' if it does not do so. In the context of Section 360, the 'special
reasons' contemplated by Section 361 must be such as to compel the Court to
hold that it is impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age, character and antecedents of
the offender and the circumstances in which the offence was committed. This is
some indication by the Legislature that reformation and rehabilitation of
offenders and not mere deterrence, are now among the foremost objects of the
administration of criminal justice in our country. Section 361 and Section
354(3) have both entered the Statute Book at the same time and they are part of
the emerging picture of acceptance by the legislature of the new trends in
criminology. It would not, therefore, be wrong to assume that the personality
of the offender as revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform must necessarily
play the most prominent role in determining the sentence to be awarded. Special
reasons must have some relation to these factors. Criminal justice deals with
complex human problems and diverse human beings. A Judge has to balance the
personality of the offender with the circumstances, situations and the
reactions and choose the appropriate sentence to be imposed.
should be borne in mind that before the amendment of Section 367(5), old Code,
by the Criminal Procedure Code (Amendment) Act, 1955 (XXVI of 1955) which came
into force on January 1, 1956, on a conviction for an offence punishable with
death, if the Court sentenced the accused to any punishment other than death,
the reason why sentence of death was not passed had to be stated in the
the amendment of Section 367(5) of old Code by Act XXVI of 1955, it is not
correct to hold that the normal penalty of imprisonment for life cannot be
awarded in the absence of extenuating circumstances which reduce the gravity of
the offence. The matter is left, after the amendment, to the discretion of the
Court. The Court must, however, take into account all the circumstances, and
state its reasons for whichever of the two sentences it imposes in its
discretion. Therefore, the former rule that the normal punishment for murder is
death is no longer operative and it is now within the discretion of the Court
to pass either of the two sentences prescribed in this section; but whichever
of the two sentences he passes, the Judge must give his reasons for imposing a
particular sentence. The amendment of Section 367(5), of the old Code does not
affect the law regulating punishment under the IPC. This amendment relates to
procedure and now Courts are no longer required to elaborate the reasons for
not awarding the death penalty; but they cannot depart from sound judicial
considerations preferring the lesser punishment.
354(3) of the Code, marks a significant shift in the legislative policy
underlying the old Code as in force immediately before 1st April, 1974,
according to which both the alternative sentences of death or imprisonment for
life provided for murder were normal sentences. Now, under Section 354(3) of
the Code the normal punishment for murder is imprisonment for life and death
penalty is an exception. The court is required to state the reasons for the
sentence awarded and in the case of death sentence 'special reasons' are
required to be stated, that is to say, only special facts and circumstances
will warrant the passing of the death sentence. It is in the light of these
successive legislative changes in Code that the juridical decisions prior to
the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be
Court in Ediga Anamma vs. State of Andhra Pradesh (AIR 1974 SC 799) has observed: "Let us crystallize
the positive indicators against death sentence under Indian Law currently.
Where the murderer is too young or too old, the clemency of penal justice helps
him. Where the offender suffers from socio-economic, psychic or penal
compulsions insufficient to attract a legal exception or to downgrade the crime
into a lesser one, judicial commutation is permissible. Other general social
pressures, warranting judicial notice, with an extenuating impact may, in
special cases, induce the lesser penalty. Extraordinary features in the
judicial process, such as that the death sentence has hung over the head of the
culprit excruciatingly long, may persuade the Court to be compassionate.
Likewise, if others involved in the crime and similarly situated have received
the benefit of life imprisonment or if the offence is only constructive, being
under Section 302, read with Section 149, or again the accused has acted
suddenly under another's instigation, without premediation, perhaps the Court
may humanely opt for life, even like where a just cause or real suspicion of
wifely infidelity pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart of the
law for a sterner sentence. We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot be left for ad
hoc mood or individual predilection and so we have sought to objectify to the
extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accepting the trend against the extreme and irrevocable penalty of
putting out life".
Singh vs. State of Punjab (AIR 1980 SC 898), it has been
observed that "a real and abiding concern for the dignity of human life
postulates resistance to taking 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". A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is
exercised. In order to apply these guidelines, inter alia, the following
questions may be asked and answered, (a) Is there something uncommon about the
crime which renders sentence of imprisonment for the life inadequate and calls
for a death sentence?; and (b) Are the circumstances of the crime such that
there is no alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in favour of the
offender? Another decision which illuminatingly deals with the question of
death sentence is Machhi Singh & Ors. vs. State of Punjab (1983 (3) SCC 470).
Singh's and Bachan Singh's cases (supra), the guidelines which are to be kept
in view when considering the question whether the case belongs to the rarest of
the rare category were indicated.
Singh's case (supra), it was observed:- "The following questions may be
asked and answered as a test to determine the 'rarest of the rare' case in
which death sentence can be inflicted :-
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
Are the circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?"
following guidelines which emerge from Bachan Singh's case (supra) will have to
be applied to the facts of each individual case where the question of
imposition of death sentence arises:-
The extreme penalty of death need not be inflicted except in gravest cases of
Before opting for the death penalty the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the
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 circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
balance-sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances has to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
rarest of rare cases when the collective conscience of the community is so
shocked, that it will expect the holders of the judicial power center to
inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty, death sentence can be
awarded. The community may entertain such sentiment in the following
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.
When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-à-vis whom the murderer is in a dominating
position or in a position of trust; or murder is committed in the course for
betrayal of the motherland.
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 infatuation.
When the crime is enormous in proportion.
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 committed.
When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-à-vis whom the murderer is in a dominating
position, or a public figure generally loved and respected by the community.
upon taking an overall global view of all the circumstances in the light of the
aforesaid propositions and taking into account the answers to the questions
posed by way of the test for the rarest of rare cases, the circumstances of the
case are such that death sentence is warranted, the Court would proceed to do
convict hovers between life and death when the question of gravity of the
offence and award of adequate sentence comes up for consideration. Mankind has
shifted from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the liberty of a
citizen by convicting him and making him suffer a sentence of imprisonment.
Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the Court-room after
adequate hearing is afforded to the parties, accusations are brought against
the accused, the prosecuted is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
principle of proportion between crime and punishment is a principle of just
desert that serves as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is hardly less familiar or
less important than the principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be disproportionately great, which
is a corollary of just desert, is dictated by the same principle that does not
allow punishment of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that reflect
more subtle considerations of culpability that are raised by the special facts
of each case. Punishment ought always to fit the crime; yet in practice
sentences are determined largely by other considerations. Sometimes it is the
correctional needs of the perpetrator that are offered to justify a sentence;
sometimes the desirability of keeping him out of circulation, and sometimes
even the traffic results of his crime. Inevitably these considerations cause a
departure from just desert as the basis of punishment and create cases of
apparent injustice that are serious and widespread.
between crime and punishment is a goal respected in principle, and in spite of
errant notions it remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal severity is now unknown
in civilized societies; but such a radical departure from the principle of
proportionality has disappeared from the law only in recent times. Even now a
single grave infraction that is thought to call for uniformly drastic measures.
Anything less than a penalty of greatest severity for any serious crime is
thought then to be a measure of toleration that is unwarranted and unwise. But
in fact quite apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime. Uniformly
disproportionate punishment has some very undesirable practical consequences.
background facts go to show the genesis of dispute between the accused and the
other members of his family was land.
seems to have taken exception to his father taking away the land from him. As
the evidence indicates, he considered his brother, sister- in-law to be
responsible for the same. It is also in evidence that 2-3 days before the
occurrence, there was a bitter quarrel between the accused and other members of
his family. Evidence of PW-7 is to the effect that there used to be constant
quarrel between PW-6, deceased Jai Bhagwan, deceased Saroj on one hand and the
accused on the other, over ancestral land. It is also in evidence that the
deceased Jai Bhagwan was not of moral character and PW-6 had forcibly occupied
the land of temple for which villagers had set on fire a piece of their house.
Though injuries on accused person do not per se affect prosecution version if
reliable; when not explained it assumes importance if they are serious in
nature. The fact that the injuries were sustained in the present case by the
accused is not disputed. In fact, PW-7 has admitted that PW-6 had given a
thorough thrashing to the accused in the court-yard after assaults on the three
accused persons. As the medical evidence indicates, the injuries sustained by
the accused were of very serious nature. It 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. The 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. Frequency of the quarrels indicate 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. The sentence is accordingly modified, while confirming the
conviction for offence punishable under Section 302 IPC.
is allowed to the extent indicated above. We record our appreciation for the
assistance rendered by Mr. Vishal Malik who was appointed as amicus curiae.