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CASE NO.: Appeal (crl.)  392 of 2002 Appeal (crl.)  393 of 2002

PETITIONER: Gurdev Singh & Anr.      Piara Singh & Anr                                               ..   

RESPONDENT: Vs. State of Punjab                                                 ..   State of Punjab          

DATE OF JUDGMENT: 01/08/2003

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT:

J U D G M E N T

K.G. BALAKRISHNAN, J.

       The appellants Gurdev Singh and Satnam  Singh were tried  by  the Addl.  Sessions  Judge, Amritsar,   and found guilty of offence punishable under  Section 302  read with Section 149 IPC and other allied offences.  As per the  prosecution case, these appellants, along with three others had caused the death  of 17 persons.   The  Addl.  Sessions Judge held that the prosecution proved  beyond reasonable doubt that these appellants were members of an unlawful  assembly which accomplished  its common object  of causing death of 15  persons.  These appellants were convicted and sentenced to death.   They  preferred an appeal before the High Court of Punjab and  Haryana and the  matter was also referred to the High Court for confirmation of the death sentence.   The High Court affirmed the death sentence in respect of  these  appellants.   These appellants challenge the judgment of the High Court.

       Though the incident occurred on  21.11.1991, these appellants were  absconding and could be apprehended only on 26.8.1996 whereas the  other  three accused, namely, Piara Singh, Sarabjit Singh (Appellants in Criminal  Appeal No. 393  of  2002) and Jasvinder Singh were tried by Sessions Judge,  Amritsar, in Sessions Case No. 94 of 1992 and the Sessions Judge held that  Piara Singh and Sarabjit Singh were members of an unlawful assembly whose  common object was to kill 15 persons. By judgment dated 15.1.1996 the  Sessions Court  found Piara Singh and Sarabjit Singh guilty of offence  punishable under Section 302 read with Section 149 IPC and sentenced  them to  death.    Another accused, Jasvinder Singh was acquitted on the ground of  benefit of doubt.     Piara Singh and  Sarabjit Singh filed an appeal before the  High Court and there was also a reference regarding confirmation of the death  sentence.   The appeal preferred by them was dismissed and the High Court  confirmed the death sentence imposed on  Piara Singh and Sarabjit Singh.    They filed an SLP registered as  Special Leave Petition (Criminal) No. 275 of  1997 challenging their conviction and sentence.   The Special Leave Petition was  disposed of on 28.2.1997 with the following order :

"We have heard learned counsel for the parties at great length and  have also gone through the record submitted along with the appeal  as well as the judgments of the courts below.   In our view, the  judgment and orders of the High Court require no inteference.   The  Special Leave Petition is therefore dismissed."

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They also filed a  Review Petition,  which was dismissed.

       When  the Special Leave Petition (Criminal) preferred by Gurdev Singh  and Satnam Singh  came up for consideration, the counsel  brought to the  attention of the Court the decision of this Court  in    Harbans Singh vs. State of  Uttar Pradesh and Ors. (1982) 2 SCC 101 and prayed for recalling the order of  dismissal dated  28.2.1997 passed earlier in Special Leave Petition (Criminal)  No. 275 of 1997  which had been preferred by Piara Singh and Sarabjit Singh.    By order dated 18.3.2002, this Court  directed that in view of the decision in  Harbans Singh’s case (supra), the order of dismissal dated 28.2.1997 in Special  Leave Petition (Crl.) No. 275 of 1997 be recalled and leave was granted.   Simultaneously, this Court  stayed the execution of death sentence on Piara  Singh and Sarabjit Singh.  Subsequent to this order, the Registry numbered their  appeal as  Criminal Appeal No. 393 of 2002 and posted the same to be heard  along with the present  Criminal Appeal No. 392 of 2002.

       At the outset, we must say that  the decision of this  Court in Harbans  Singh’s case (supra) does not lay down any rule that an Appeal/Special Leave  Petition already disposed of by  this Court is to be re-heard when an appeal   preferred by another set of accused involved in the  same incident comes up for  consideration at a later stage.    In Harbans Singh’s case, four  accused were  found guilty of murder and other  offences and they were  sentenced to death.    The High Court confirmed the death sentence.   After their conviction and  sentence, one of the convict died and the other three convicts  filed separate   special leave  petitions before this Court.   The first special leave petition when  came up for consideration, was dismissed and  the death sentence imposed on  the convict was confirmed.  In the second special leave petition filed by another  convict which came up for consideration before a different Bench of this Court,    leave was granted  and the death sentence  was commuted to life imprisonment.       In the third petition preferred by yet another convict, the death sentence imposed  on him was confirmed.  His petition for mercy was dismissed by the President of  India.   When the date of execution of death sentence was fixed, he filed a writ  petition under Article 32 contending that   his co-accused escaped the death  sentence, therefore,  the death sentence imposed on him be also commuted to   life imprisonment.      It is pertinent to note that this Court did not commute the  sentence of death imposed on him to life imprisonment and observed that in the  interest of comity   between the powers of this Court and the powers of the  President of India it will be more in the fitness of things if the Court recommends  to the President for commutation of death sentence to life imprisonment in  exercise of power under Article 72.   It is also to be noticed that the petitioner  therein was tried along with three others and in the case of one of his co- accused, the sentence of death was commuted to life imprisonment.

       In the present appeals, appellants Gurdev Singh and Satnam Singh were  not tried along with appellants Piara Singh and Sarabjit Singh.  As appellants  Gurdev Singh and Satnam Singh were absconding, they could be tried only  subsequently in a separate trial.    As the Special Leave Petition of Piara Singh  and Sarabjit Singh came to be finally disposed of  on  28.2.1997 and the  conviction and sentence entered against them attained finality, we do not think  that it is just,  proper and legal to hear the appeal and consider the question  involved therein on merits again.   Therefore, the Criminal Appeal No. 393 of  2002  (corresponding number assigned  by the Registry to SLP(Crl.) No. 275 of  1997)  is only to be dismissed and we do so and  vacate  the stay of execution of  the death sentence imposed on the appellants therein.

       In the Criminal  Appeal No. 392 of 2002, the case of the prosecution is  that the appellants, Gurudev Singh and Satnam Singh, along with three other  accused went to the house of Smt. Swaran Kaur on 21.11.1991 at about 9.00  P.M.   In the house of Smt. Swaran Kaur, the marriage of her son, Angrez Singh  was to be celebrated on the next day.    A   ’shamiana’  had  been erected and  the area was sufficiently lit by electric bulbs.  Several relatives and family friends  of Smt. Swaran Kaur had gathered in her house and a feast was going on.  It is  the case of the prosecution that out of the  five accused, three accused scaled  over the wall of ’kotha’ and two of the accused remained at the gate.  Piara Singh

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was armed with a double barrel gun and Sarabjit Singh was armed with a service  rifle.   Appellant Gurudev Singh was armed with an SLR and the second  appellant, Satnam Singh and another accused Jasvinder Singh, who stood at the  gate,  were also  carrying  firearms.   All the five accused then started firing from  their weapons and  continued  shooting   for 10-15 minutes.   PW-6, Swaran Kaur  and her son Angrez Singh managed to  hide  themselves behind a heap of  firewood in the house.    When  all the five accused left the house,  they could  see a ghastly scene where  13  persons  were  lying dead and eight others were  found seriously injured.   The    further case of the prosecution is that all the five  accused, after  leaving the house of  PW-6, proceeded to the house of PW-15,  Sarabjit   Singh.    There also,    they started firing as a result of which  Gurpal  Singh and Sukhdev Singh, father and brother respectively of  PW-15 Sarabjit  Singh died on the spot.   The prosecution alleged that these accused  then  went  to two other places and killed two other persons, but the prosecution could not  adduce any satisfactory evidence regarding those  two  incidents.

       PW-6 gave the First Information statement at about 11 P.M. on  21.11.1991 and the police arrested Piara Singh and Sarabjit Singh immediately  after the incident.   The dead bodies of  victims  [altogether 17] were sent for  post-mortem examination and it has been proved that all of them died of firearm  injuries.     On  the side of the prosecution, PW-6 Swaran Kaur,  PW-7 Kashmir  Kaur, PW-8 Baldev Singh and PW-9 Angrez Singh  were examined  as eye- witnesses to prove the first incident where 13 persons died.  PW-15, Sarabjit  Singh was examined as eye-witness to prove the second incident in which his  father and brother were killed.

       We have carefully examined the evidence adduced by the prosecution.   PW-7, Kashmir Kaur and PW-8 Baldev Singh were injured witnesses; so their  presence at the scene of the  crime cannot be doubted.  PW-6, Swaran Kaur is  the mother of the groom and PW-9, Angrez Singh, was the groom himself for  whose marriage-celebration the victims had gathered at the house of PW-6.   Therefore,  the   presence of PW-6 and PW-9 cannot  at all  be doubted.

       On behalf  of the  appellants, the counsel, Shri Seeraj Bagga, strenuously  contended before us and pointed out various infirmities in the prosecution case.     We do not, however, think that the minor infirmities pointed out, in any way,  would cast  doubt   on the  prosecution  case.   For  instance,  the counsel   argued  that  PW-6 stated that she had given the F.I. statement on the next day  whereas   the  F.I.   statement  was     recorded  on the night  of   the   occurrence.    PW-6 was examined in court after a long lapse of time  and  the    inconsistency  in narrating the events   by her subsequently    may  have been  due to fading of memory and it cannot be considered a serious mistake.   The  counsel for the appellants also contended that the FIR  reached  the            Magistrate belatedly.  Here is a case where a serious crime had been committed  and the dead bodies of as many as 17 victims had to be taken care of   and  inquest and post-mortem had to be conducted at the instance of the police.  This  must have caused few hours’   delay in sending the FIR to the Magistrate.   All  the eye-witnesses deposed in unmistakable terms that these appellants were  present  at the scene of the crime and used firearms and  they continuously   went  on    firing on the innocent victims for about 10-15 minutes.

       The prosecution also alleged that there was some  motive on the part of  Piara Singh to attack    the members of the family of  PW-6 Swaran Kaur.   It is  alleged that one of the sons of  PW-6,  namely,  Jagir  Singh had an encounter  with Piara Singh and in that incident, one servant of Piara Singh had  died.    It is  alleged that Piara Singh  thus nurtured an ill-will against the members of the  family of Jagir Singh. As regards the second incident in which Gurpal Singh and  Sukhdev Singh died,  no infirmity could be pointed out in the testimony of PW-15   and the prosecution case.      PW-15 deposed that accused persons had shouted  that they would teach the victims a lesson for helping  Jagir Singh and his   family   members.

It is proved beyond reasonable doubt that the appellants Gurudev Singh  and Satnam Singh were responsible for causing the death of 15 persons,   besides causing grievous injuries  to eight others.   They have been rightly

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convicted by the sessions court for the various offences charged against them.

       It is contended on behalf of the appellants that the trial court had  pronounced the sentence on the same day on which the conviction was passed.    Hence, relying upon certain observations in the judgments of this Court in   Muniappan vs. State of Tamil Nadu  AIR 1981  SC 1220   and  Allauddin Mian  & Ors.   vs.   State of Bihar  AIR 1989  SC 1456 = (1989) 3 SCC  5,  it was  urged that the obligation of the trial court under Section 235(2) of the Code of  Criminal Procedure, 1973,  was not properly discharged as the trial court did not  adjourn the hearing of the case for sentencing after the order of conviction was  pronounced.

       In our view, the contention is entirely misplaced.   As pointed out in  Ramdeo Chauhan  vs. State of Assam   (2001) 5 SCC 714,  both the aforesaid  judgments were delivered prior to the addition of the third proviso to Section  309(2) of the Code of Criminal Procedure, 1973 by Amending Act  45 of 1978   which reads  thus :

       "Provided also that no adjournment shall be granted for the purpose  only of enabling the accused person to show cause against the  sentence proposed to be imposed on him."

       It was held that the mandate of the legislature is clear that no adjournment  can be granted for the purpose only of enabling the accused person to show  cause  against  the  sentence  proposed to be imposed upon him.   Nonetheless,  the Court can in appropriate cases grant adjournment for the aforesaid purpose,  if the proposed sentence is a sentence of death.   From the material on record, it  does not appear that any request was made to the learned Sessions Judge for  adjournment.     In the circumstances, we see no substance in the contention that  the sentence imposed was  vitiated  for non-compliance  with Section 235 (2) of  the Code of Criminal  Procedure, 1973.

       The  only question that remains is whether  the appellants are liable to be  sentenced to the extreme penalty of  capital punishment.    The counsel for the  appellants brought to our notice  a series of decisions rendered by this Court and  beseeched  for commutation of death sentence  imposed  upon the appellants.    The counsel also brought to our attention many errors committed by the High  Court by not properly adverting to the mitigating circumstances.      In fact, the  High Court did  not  consider the various aspects to be taken into account before  awarding the extreme punishment of death penalty.  The sessions court   considered the matter in some detail and held that appellants deserved death  penalty.  It was argued by the appellants’ Counsel that the Court failed to strike a  balance  between the aggravating and mitigating circumstances.   The counsel  for the appellant contended that there are so many mitigating circumstances,    which should have been taken into consideration by the sessions court as well as  High Court.   It is argued that the appellants Gurudev Singh and Satnam Singh  were young at the time of the commission of the crime and no motive whatsoever  was proved against them and that the evidence would only indicate   that they  followed  the  dictate of their father, who, in all possibility, must have  instigated  them.   It was submitted that the appellants had no other criminal antecedents  and there was nothing on record to show that the appellants would be a menace  to the society or that they are beyond the pale of  any  reformation.           After amendment of Criminal Procedure Code 1898 in 1974, there was  significant change in the legislative policy with regard to the sentence of death or  imprisonment for life provided for murder and certain other capital offences under  the Indian Penal Code.   As per the changed policy, when conviction for an  offence punishable with death or in the alternative with imprisonment for life or  imprisonment for a term of years  is  recorded, the judgment should state  reasons for the sentence awarded and in the case of sentence of death, special  reasons must be given.   Therefore, as per Section 354(3) Cr.P.C., in every case  where the court finds that the capital punishment is  the inevitable  consequence,

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the court should give special reasons.   The Constitutional validity of death  sentence  itself was challenged in  Bachan Singh vs. State of Punjab (1980) 2  SCC 684.  One of the grounds of attack was that  Section 354(3) Cr.P.C.  provides for imposition of death penalty in an arbitrary and whimsical manner  inasmuch as it does not lay down any rational principle or criteria  for invoking the  extreme penalty.   The Constitutional validity of the said Section was upheld and  the Constitution Bench stated that  it is difficult to lay down a formula of universal  application when facts are bound to be different from case to case and it would  frustrate the very purpose of conferring a discretion on courts.             

In   Ediga Anamma  vs. State of Andhra Pradesh   AIR 1974 SC 799,   V.R. Krishna Iyer, J. , speaking for the Bench, said :

" Weapons used and the manner of their use, 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."

But,   later   in   Rajendra Prasad   vs.   State of Uttar Pradesh  (1979) 3  SCC 646,  a 3-Judge Bench decision  observed that the focus had shifted from  crime to criminal and the special reasons necessary for imposing death penalty  must relate not to the crime as such but to the criminal.  But this view was  overruled in  Bachan Singh’s case (supra), in which it was held as under :

"As 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.   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.   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."

It  was further held  as under:

"It is, 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  the death sentence an exception.   A  real and abiding concern for the dignity of human life postulates  resistance of 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."

       The consistent view of this Court in a series of rulings is to the effect that  no rigid formula or standards can be fixed and only a broad guideline consistent  with the legislative policy indicated by the Legislature in Section 354(3) of Cr.P.C.  alone shall be considered  for invoking the extreme penalty of death sentence.   

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A survey of some of the decisions of this Court would give an idea as to how this  Court viewed various circumstances,  which would warrant invocation of death  penalty.

       In   Allauddin Mian & Ors. vs. State of Bihar (1989) 3 SCC 5, a group  of  six persons came  armed with deadly weapons to the house of PW-6 and two of  them advanced menacingly  towards him.   On seeing them PW-6 ran  to the  adjoining room.  Accused 1 and 2 then killed the two daughters of PW-6.  The  High Court confirmed the death sentence awarded to both of them  by the trial  court.   This Court stated that unless the nature of the crime and the  circumstances of the offender reveal that the criminal is a menace to the society  and the sentence of life imprisonment would be altogether inadequate, the court  should ordinarily impose the lesser punishment and not the  extreme punishment  of death which should be reserved for exceptional cases only  and that in  cases  in which the crime is so brutal, diabolical and revolting as to shock the collective  conscience of the community, it would be  permissible to award the death  sentence.  The mere fact that infants are killed, without more, is not sufficient to  bring the case within the category of ’the rarest of rare’ cases.   This Court  commuted the death sentence imposed on the accused to life imprisonment.

Janki Dass vs. State (Delhi Administration) 1994 Supp. (3) SCC 143   is  the case of a person who was  in serious penury and who found himself  unable to pay his debts.   He  committed  the  murder   of  his  three children.  He  was sentenced to death and his conviction was confirmed by the High Court.    Although the case  was found to be so shocking to the  conscience,  this Court  commuted the death penalty to life imprisonment stating  that the convict  committed  the offence in question not with the intention to commit the murder of  his  own children, but only by way of deliverance from the day to day strain of life,  he being financially crippled.

In  Sheikh Ishaque & Ors. vs. State of Bihar   (1995) 3 SCC 392, ten  persons came to the house of the complainant during night armed with bombs  and firearms.  The house was burned and three  persons were burnt to death.   Four of the accused were sentenced to death by the trial court and the High  Court confirmed the same.    This  Court  observed that as there was no  evidence as to which of the accused had sprinkled  kerosene  and set fire to the  room,    it is a mitigating circumstance while considering the question of  sentence.   The fact that the accused,  though armed with firearms, did not use  the weapons was also taken note of by this Court.  It was also observed that  there  was no evidence to  show that the appellants knew or had reason to  believe that there were three persons inside the room  when the  same was set  on fire.

A. Devendran vs. State of Tamil Nadu  (1997) 11 SCC 720 is a case of  triple murder.   This Court held that the trial court was not justified in awarding  death sentence as the accused had no pre-meditated plan to kill any person and  as the main object was to commit robbery.

In   Kumudi Lal vs. State of U.P.  (1999) 4 SCC 108, the accused was  alleged to have raped and murdered a young girl aged 14 years.  This Court held  that in order to prevent her from raising shouts  the appellant tied the salwar  around her neck which resulted in strangulation and her death.  It was not a fit  case in which the  extreme penalty of death sentence deserves to be imposed on  the accused.

In  Om Prakash vs. State of Haryana (1999) 3 SCC 19,  a dispute over a  small house  between two neighbours resulted in the murder of seven persons.   Death sentence was imposed on the accused by the trial court which was  confirmed  by the appellate court.   This Court observed that the bitterness  increased to a boiling point  and  the agony suffered by the appellant and his  family members at the hands of the other party,  and for not getting protection  from the police officers concerned or total inaction despite repeated written  prayers,  goaded or compelled the accused to take law  in his own hands which  culminated in the gruesome murders.   The accused was a BSF Jawan aged 23  at the time of incident.   This Court  commuted the death penalty to  

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imprisonment for life.

In   Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28,  the  accused was alleged to have committed rape on a  girl aged  1â\200\2231/2 year and  caused injuries which resulted in the death of the child.   This Court held that the  crime committed by the  accused was undoubtedly serious and heinous and the  conduct of the appellant was reprehensible.  It showed a  dirty and perverted  mind of a human being who had no control over his carnal desires.  Treating the  case on the touchstone of the guidelines laid down in Bachan Singh’s case  (supra) and   in   Machhi Singh & Ors. vs. State of Punjab (1983) 3 SCC 470,   this Court substituted the sentence of life imprisonment for the capital sentence.

In Lehna vs. State of Haryana (2002) 3 SCC 76,  the accused had killed  his mother, brother  and sister-in-law.   He was sentenced to capital punishment.    This Court,  applying the principle laid down in  Machhi Singh’s case (supra),  held that the appellant  did not deserve the death penalty.

There are several other cases also where this Court commuted the death  sentence to imprisonment for life.  But the facts and circumstances of many of  those cases are not parallel to the facts of the case on hand.   Machhi Singh’s  case ( supra)  reveals almost  identical facts.   There was a  family  feud between  two   sets  of  families and  the accused, with a motive of reprisal,   committed  17  murders in five incidents occurring in the same night in quick succession in five  neighbouring villages.   This Court elaborately considered the question of death  sentence imposed on Machhi Singh, Kashmira Singh and Jagir Singh and  confirmed the same.

Coming back to the instant appeal, the counsel for the appellants pointed  out that there were some mitigating circumstances  to award lesser sentence.    According to the counsel, there was no evidence on record to show that the  appellants were involved in any other criminal case.  Normally, the evidence  regarding the character of the accused will not be adduced by the  prosecution.    It  is true that there is no direct evidence regarding the motive except that there  was a suggestion that there was earlier a confrontation between  Piara Singh and  a son of the complainant and in that incident one of the servants of Piara Singh  died.  Regarding that also, there  is no direct evidence.    The aggravating  circumstances   of the case, however,  are that the appellants, having known   that on the next day a marriage was to take place in the house of the  complainant  and there would be lot of   relatives  present  in her house,  came  there  on the evening of 21.11.1991 when a feast was going on  and started firing  on the innocent persons.  Thirteen persons were killed on the spot and eight  others were seriously injured.   The   appellants thereafter went to another  place  and killed the father and brother of PW-15.  Out  of the thirteen persons, one of  them   was seven year old child, three others were at the threshold of their lives.   The post-mortem reports show their age ranged between 15 to 17 years.  They  had also their right to live in this world peaceably and these appellants had no  grievance or enmity against any one of them.  In the course of wide ranging  submissions, the Counsel for the appellants laid stress on the point that the  underlying principle of our sentencing jurisprudence is reformation and there is  nothing in evidence to show that the appellants may be a threat or menace to the  society.  It is true that we cannot say that they would be further menace to the  society or not as "we live as creatures saddled with an imperfect ability to predict  future".  Nevertheless, the law prescribes for future, based upon its knowledge of  past and is being forced to deal with tomorrow’s problems with yesterday’s tools.  The entire incident is extremely revolting   and  shock  the collective conscience  of the community.   The acts of murder committed by the appellants are so   gruesome,  merciless and brutal  that  the aggravating circumstances far  outweigh the mitigating circumstances.  Moreover, the two accused who were  earlier tried are already  sentenced to death and  their Special Leave Petition  was finally disposed of by this Court.    

Having  regard  to   these  facts,  we do not think  that this is a case where   imprisonment  for life is an adequate sentence to meet the ends of justice.    Though we have  deep  sympathy  to the members of the family of the  appellants, we are constrained to reach the inescapable conclusion that death

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sentence imposed on the appellants be  confirmed.     Accordingly, Criminal  Appeal No. 392 of 2002,  preferred  by  Gurdev  Singh  and  Satnam  Singh is  dismissed and  the conviction of these appellants on various other counts is also  confirmed.  Order passed earlier by this Court staying the execution of the   capital punishment  on Piara Singh and Sarabjit Singh  is vacated.