Pal Vs. State of U.P  Insc 356 (6 August 2003)
Hegde & B.P.Singh. Santosh Hegde,J.
this appeal, while granting leave, this Court confined the scope of the appeal
to the consideration of the question of sentence only.
appellant along with seven others, who survived the trial out of the eleven
persons originally tried, were convicted for offences punishable under Sections
302, 307 436 and 440 all read with Section 149 IPC. The trial court imposed
varying sentences on them, but in regard to appellant and one other person,
awarded the sentence of death and referred the said sentence to the High Court
of Judicature at Allahabad, Lucknow Bench for confirmation.
The High Court by the impugned judgment has accepted the reference and confirmed
the death sentence awarded to the appellant but taking into consideration the
age of the other accused who was also sentenced to death converted his sentence
from death to life imprisonment. In this appeal, the appellant questions the
sentence of death awarded to him on various grounds.
Dwivedi, learned senior counsel appearing for the appellant submitted that the
crime of which the appellant is charged with cannot be termed as a rarest of
the rare cases calling for extreme penalty of death even though 21 persons had
lost their lives due to the acts of the appellant and other accused persons. He
submitted that there was sufficient provocation from the side of the victims
which lead to the incident on the fateful day because the victims party was
earlier responsible for the double murder of appellant's close relatives in
regard to which the members of the said party were being prosecuted in a
sessions trial. Inspite of the said proceedings, on the day of the incident
another relative of the appellant by name Bhagwati was found murdered which the
appellant and his family members had reasons to believe was due to the act of
the family of the victims. These facts according to the learned counsel was the
provocation for the murders for which the appellant is being punished. Hence
the facts of the case in hand did not call for the extreme penalty of death. He
also submitted that the appellant was not the leader of the group of accused
which caused the death of so many victims nor he had exhorted others either to
kill or to set fire to the houses. His act was at the most on par with the
other accused who have been awarded lesser sentence.
also submitted that even according to the prosecution case, there was
considerable doubt as to the role played by the appellant in the incident in question,
hence, he has been roped in with the aid of Section 149 IPC. His further
submission was that the incident in question had taken place nearly 17 years
ago and eversince then the appellant has been in jail, therefore the appellant
should be given an opportunity of redeeming himself.
Malhotra learned counsel appearing for the State opposed the reduction of the
sentence on the ground that both the courts below have considered all aspects
of the case including the question of quantum of punishment and having come to
the conclusion that the incident in question which caused the death of 21
innocent victims was a rarest of the rate cases, considered the death penalty
as the appropriate sentence in regard to this accused, therefore, this is a
case in which no interference in the sentence awarded by the courts below is
have carefully considered the argument addressed on behalf of the parties. It
is true the incident in question has pre- maturely terminated the life of 21
people but then number of deaths cannot be the sole criterion for awarding the
maximum punishment of death. While in a given case death penalty may be the
appropriate sentence even for a single murder, it would not necessarily mean
that in every case of multiple murders death penalty has to be the normal
punishment. Guidelines to be borne in mind while awarding death sentences have
been considered and laid down by this Court in a number of cases but for the
purpose of deciding this appeal it would suffice if we refer to a Constitution
Bench judgment of this Court in the case of Bachan Singh vs. State of Punjab
(1980 2 SCC 684). In the said case this Court after considering the
constitutional validity of the provisions which empowers the court to award
death sentence laid down the following broad guidelines to be borne in mind by
the courts while considering the question of awarding a sentence in cases
involving murder :
thing however stands clear 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. This is so because 'style is the man'. In
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……..
the aggravating circumstances, pre- planned, calculated cold-blooded murder has
always been regarded as one of an aggravated kind; so also a murder
"diabolically conceived and cruelly executed" and the test of Ediga Anamma
weapons used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim".
said judgment this Court also laid down circumstances which could be considered
as aggravating circumstances. These circumstances are as follows :-
the murder has been committed after previous planning and involves extreme
the murder involves exceptional depravity; or
the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public
servant and was committed –
such member or public servant was on duty; or
in consequence of anything done or attempted to be done by such member or
public servant in the lawful discharge of his duty as such member or public
servant whether at the time of murder he was such member or public servant, as
the case may be, or had ceased to be such member or public servant; or
the murder is of a person who had acted in the lawful discharge of his duty
under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered
assistance to a magistrate or a police officer demanding his aid or requiring
his assistance under Section 37 and Section 129 of the said Code."
it also considered the following circumstances as mitigating circumstances :-
That the offence was committed under the influence of extreme mental or
The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
The probability that the accused can be reformed and rehabilitated.
State shall by evidence prove that the accused does not satisfy the conditions
(3) and (4) above.
That in the facts and circumstances of the case the accused believed that he
was morally justified in committing the offence.
That the accused acted under the duress or domination of another person.
That the condition of the accused showed that he was mentally defective and
that the said defect impaired his capacity to appreciate the criminality of his
in mind the above broad guidelines laid down by this Court in the case of Bachan
Singh (supra), if we consider the facts of the case we notice the fact that the
appellant was a party to an incident in which 21 people including young
children were murdered by gun shot injuries or by burning them in latched
houses itself could be considered as aggravating circumstances to consider
awarding of death sentence.
to the judgment in Bachan Singh's case (supra), then we will have to weigh the
same with any mitigating circumstances that may be available on the facts of this
doing the said exercise of searching for mitigating circumstances in the
present case, we find the incident in question was sequel to the murder of Bhagwati
a close relative of the appellant and other principal accused, which was
suspected to have been committed by the members of the victims family. Prior to
that the victims family was accused of having committed the murder of 2 of the
close relatives of the appellant's family for which some of the members of the
victims family were being prosecuted. On facts and circumstances of this case,
we think this circumstance can be treated as a circumstance which amounts to a
provocation from the victims side. We also notice that the role played by the
appellant is somewhat similar to the role played by the other accused persons
who have been given lesser sentence while the appellant has been awarded death
sentence that too with the aid of Section 149 IPC therefore, a question arises
why this appellant should not be considered at par with those accused for the
purpose of awarding the sentence. We also notice from the argument of the
learned counsel which is supported by material on record, that the specific
overt act attributed to the appellant that he climbed the house of the
informant and threatened to shoot the victims if they came out of their houses,
while the other accused latched and set the houses on fire seems to be an
afterthought not having been told to the investigating officer by the witnesses
when their statements were recorded by him. We also notice that the appellant
was not treated by the prosecution itself as the leader of the gang but was
considered to be one amongst other accused who took part in the incident. The
fact that accused has spent nearly 17 years in custody after the incident in
question can also be treated as a mitigating circumstance while considering the
question of sentence.
above noted circumstances which we consider as mitigating circumstances, in our
opinion, outweigh the aggravating circumstances as found by the courts below.
In the said view of the matter, we think it appropriate to allow this appeal
and in substitution of sentence of death awarded to the appellant, we sentence
the appellant under Section 302 read with Section 149 IPC to undergo
imprisonment for life. The said sentence shall run concurrently with the
substantive sentence imposed by the trial court on other counts.
appeal is allowed partly.