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CASE NO.: Appeal (crl.)  1371 of 2004

PETITIONER: Gurmeet Singh                                            

RESPONDENT: State of Uttar Pradesh                                   

DATE OF JUDGMENT: 28/09/2005

BENCH: K.G. Balakrishnan & Arun Kumar

JUDGMENT: J U D G M E N T

ARUN KUMAR, J.

       The appellant has preferred  this appeal against the judgment of the  Allahabad High Court upholding his conviction and sentence. The sessions  court while convicting the appellant under Section 302 I.P.C., had awarded  death sentence. The case against the appellant is that he alongwith his  companion Lakha Singh (who died during the course of trial proceedings)  committed the murder of thirteen members of his family in the night of 17th  August, 1986.  The petitioner was living jointly with several other members  of his family in a big house called in local language as ’jhalla’. Thirteen  persons of the family who were killed on that fateful night were father of the  appellant, his two real elder brothers, wives of both the brothers, four  daughters and two sons of one of the brothers who was murdered and two  sons of another slain brother.  The only members of the family who survived  the murderous attack are one brother of the appellant namely Balwinder, his  wife,  who was away to her parents’ house and was, therefore, not present in  the house on the date of occurrence and some children.  As far as appellant’s  brother Man Singh is concerned, his almost entire family was finished as he  and his wife and four daughters and two sons were subjected to the  murderous attack resulting in their deaths.  Family of another brother Karam  Singh was also finished as both the husband and wife were killed alongwith  two young sons aged 9 years and 4 years at the time of the incident.  Only  one son of Karam Singh who is named Paramjeet Singh survived.  He is  P.W.2.  Six children of Man Singh who were killed were between the ages  of 3 to 9 years.  Even two of the surviving members of the family who  appeared as P.W. 1  and P.W. 3, received injuries in the attack. As per the prosecution case both the accused came with swords and  started shouting and indiscriminately attacking the members of the family  who were asleep at various places in the house.  It is in evidence that it was a  moonlit night.  One Jawahar had accompanied the accused.  He was a  servant.  No particular role was assigned to Jawahar except that he was  throwing brickbats on the terrace where some of the members of the family  were sleeping and was shouting at them to come down.  Jawahar was  acquitted by the trial court and the State did not appeal against his acquittal.   The other accused Lakha Singh died during  trial.  The trial Court convicted  the appellant for offence under Section 302 IPC and sentenced him to death.   Since it was a case of death sentence, reference was made to the High Court  for confirmation of sentence.  The appellant also filed appeal against his  conviction  before the High Court.         The case of the prosecution is that the appellant had been married  about one year prior to the date of incident. He was part of the family and  was staying together with other members in the same house. The entire  family was joint.  The family was suspecting unnatural relationship between   his newly married wife and his  friend Lakha Singh, co-accused.  Lakha  Singh used  to visit her very often and even stayed with her. The relationship  between the two was felt to be unnatural.  The family, therefore, was  objecting to Lakha Singh’s visits and presence in the house which was not

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liked by the appellant as also by Lakha Singh.  Therefore, they both decided  to finish the entire family and in furtherance of this common intention they  came with swords in their hands on the fateful night and started the  murderous attack on family members. They did not spare even  the father of  the appellant  Nazir Singh who was sleeping at a distance near the tubewell  and to finish him the accused had to go there.  Other family members were  sleeping in the house at different places.  The family members started  shouting and running here and there to save themselves.   But the two  accused having swords in their hands attacked whosoever was within their  reach.  The wife of one of the brothers tried to escape from the back door  into the field.  However, she was chased and finished  in the field itself.   In the High Court there was difference of opinion between the two  Judges who constituted the Bench hearing the appeal.  One Judge was for  dismissal of the appeal and maintaining conviction and the death sentence  while the other was for acquittal of the accused.  The matter was referred to  a third Judge who ultimately upheld the conviction and sentence vide his  order dated 29th February, 1996 and the reference was answered accordingly.   What weighed with the learned judge who opined for acquittal of the  accused was that eye witnesses were near relations.  Secondly, it was felt  that the deceased family members must have raised alarm by shouting and  crying and if the murder was committed as stated by the prosecution in the  house of the appellant, neighbours would have come to help.  Further, the  learned Judge felt that it was surprising that no resistance was offered. The learned amicus curiae appearing for the appellant raised same  points before us while arguing the appeal.  The reasoning of the learned  Judge who stood for acquittal of the accused does not appeal to us and in our  view, the same is totally untenable.  The incident took place in the family  house of the appellant.  All the deceased persons were immediate family of  the accused  being his father, brothers, their wives and their children.  The  surviving eye-witnesses are one brother and two children of the brothers  who were killed.  Their presence in the house is natural.  The entire family  was sleeping in the family house at that hour of the night.  The family had  been taken unawares.  The accused persons were wielding swords in their  hands which they used to kill the family members in an indiscriminate attack  on them.  The medical report about nature of injuries supports attack by  swords.  The residential house was in an area having large farm houses.   This is the tarai area as it is called in the State of Uttar Pradesh.  It has very  fertile land.  The uprooted farmers of Punjab, were allotted lands there.    They settled there and converted the entire area into a very flourishing  agricultural economy.  There are big farms and residential portion in each  farm is located  at quite a distance from each other.  Therefore, there is no  question of neighbours hearing the shouts and coming  for help.  Most of the  family members who have been killed were very young children,  below ten  years of age.   What resistance they could offer?  The brothers were sleeping  at separate places and were separately attacked and killed.  There was no  time for the family members to group together to ward off the attack.   Another argument being raised is that it was dead of night and it was  difficult to identify the persons who were attacking.  This argument again is  totally misconceived.  As already noticed, it was a moonlit night.  Secondly,  the accused were known persons, being members of the family.  The  accused remained on the scene of crime for a long time killing the victims  one after the other.  Therefore, there could be no doubt whatsoever about  their identity to the eye-witnesses.  One of the eye-witnesses is the brother of  the accused while the other two are the children of deceased brothers who  are more than 12 years of age.  Justice Giridhar Malaviya, the Judge  who  gave a judgment of conviction has rightly observed in his judgment as  under: "Once we examine the sequence of the murders  mentioned about, it becomes quite clear that there is  hardly any chance for any of the adult members to go and  bring their swords to protect themselves.  Even though a  judicial notice of this fact can be taken that ever Sikh  keeps a sword or Kripan, but it cannot be believed that  they put a sword on a cot when they go to sleep, rather it  is generally kept inside the house in a room.  

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Consequently, there was hardly any time for any of the  victims to go and gather their weapon.  The accused  persons who had chalked out the plan to commit the said  crime could very well see that they could systematically  eliminate all the persons in their family without any real  resistance being offered in their design to commit this  heinous crime.  Consequently I am not prepared to accept  the defence contention that only two persons could never  have caused the murder of thirteen persons and injuries to  two persons."

       The said learned Judge of the High Court relied on the evidence of the  eye-witnesses  i.e. P.W. 1 Kumari Viro, P.W.2 Paramjit Singh and P.W. 3  Balwinder Singh and upheld the prosecution case.

       The learned Judges of the High Court have considered the evidence of  the eye-witnesses in a detail before reaching their respective decisions.  We  do not consider it necessary to discuss the entire evidence in detail. We have  carefully gone through the evidence and we are in agreement with the  conclusion arrived at by the learned Judges of the High Court who have  upheld the conviction of the appellant.  P.W. 1 Kumari Viro was aged about  13/14 years.  She has stated that it was a moonlit night.  She was sleeping in  a room alongwith her Sisters Pammi and Ravinder Kaur.  Her father Man  Singh and mother Sita were sleeping alongwith her sisters Kanti, Akki and  brothers Richpal and Pamma on the terrace.  She saw the accused appellant  and Lakha Singh having naked Swords in their hands.  They attacked the  children who were sleeping on the cot namely Akki, Kanti, Richpal and  Pammi.  Accused Gurmeet attacked Man Singh and cut him into pieces by  his sword. Likewise, Sita, mother of PW 1 was cut into pieces by Lakha  singh.  She has said that she tried to save her mother when Lakha Singh  attacked due to which she received injury on her head and fingers.  The story  continues like this.  About the motive the eye-witnesses stated:

"\005two or three days before this incident, while Smt.  Bhajan Kaur was going to serve the meal to her husband  then on the way accused Lakkha Singh, Gurmit Singh  and Jawahar abused her with filthy languages.  When  Smt. Bhajan Kaur reported this matter to Nazir Singh, the  head of the family and to Man Singh and Balvender  Singh, then Nazir Singh, Man Singh and Balvender  Singh complained about this to the three accused persons  and they threatened that they will call a ’panchayat’.   When the ’panchayat’ was to be performed on the next  day of the incident, this incident took place in the last  night itself.  She has deposed that Lakkha Singh used to  visit the house of accused Gurmit Singh and used to talk  with his wife in his absence.  This certainly  involved the  prestige and honour of the family and, therefore, Nazir  Singh had warned Gurmit Singh that Lakkha Singh shall  not visit his house hereafter and will not stay in the house  of Gurmit Singh.  But then accused Gurmit Singh stated  that he will not turn-out Lakkha Singh and Lakkha Singh  will remain continued to visit there.  P.W.1 has stated  that Lakkha Singh was visiting the house of Gurmit  Singh just after the marriage of Gurmit Singh.  She has  stated that later he was living with accused Gurmit Singh  in his house.  She has further stated that the room of  accused Gurmit Singh was clearly visible from the room  of Km. Biro (P.W.1).

P.W.2 Paramjit Singh is the son of late Karam Singh,  who was aged about 13 or 14 years.  On his oral version  the first information report (Ext.Ka1) was drawn up.  He

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has fully proved the motive for committing this crime in  the said manner as stated by P.W.1.  He has given the  ocular version of this incident which is again fully  corroborated by P.W.1."

P.W. 2 has further stated that he saw accused Gurmeet Singh and  Lakha both attacking his grandfather Nazir Singh. After committing murder  of Nazir Singh all the three accused went towards southern direction.  P.W.2  Paramjit Singh was aged about 13/14 years and was responsible for the first  information report.  He is not an injured person, therefore, an argument was  advanced that he was not at the spot at all and his evidence has been  fabricated by the prosecution.  Likewise, the first information report was  attacked as having been improved at a later stage by supplying certain  omissions.  We, however, find no merit or substance in these arguments.  In  cross-examination it has not been suggested to the witness that he was not  present at the scene of occurrence.  In normal course he was bound to be  present in the house at the time of the incident.  The witness had stated that  he had jumped down and reached the sugarcane field from where he could  see the accused Gurmeet Singh on the roof of the house killing family  members.   He had also seen Lakha Singh chasing his mother and killing her  at the back of the house.  There appears to be no cogent reason why he  should be deposing falsely against his own uncle unless he had actually seen  his uncle killing the family members.  The evidence of the eye-witnesses  corroborates each other.  Therefore, there is no reason to doubt the same.  In  the face of such clear cut evidence of the eye-witnesses there is hardly any  scope for the argument regarding sanctity of the FIR.  The credibility of the  eye-witness account of the incident is sought to be attacked on the ground  that it was late at night and in the darkness it would have been difficult to  identify the accused persons.  On this we have already observed that all the  eye-witnesses are unanimous that it was a moonlit night.  The accused  persons were familiar faces, one of them being  member of the family and  staying with the family.   Further the accused remained on the scene of the  crime for a long time, therefore, there could be no doubt about eye-witnesses  being able to identify them correctly.  About the crime committed inside the  room on the ground floor, it is in evidence that there was a lamp lighted in  the room which provided sufficient light to identify the attackers.  In view of  this convincing evidence on record we are fully in agreement with the  findings reached by the two judges of the High Court who have upheld the  conviction and sentence of the accused.  Accordingly we find no merit in  this appeal and the same is dismissed.

Learned counsel for the appellant contended that the death penalty  may be commuted to life imprisonment.  It was argued that merely because  more number of persons had been killed, the death penalty need not be the  only option.  He pointed out that even in cases where more persons had been  killed, this Court commuted the death penalty to life imprisonment.  We are  not impressed by the argument advanced by the counsel for the appellant.   We have carefully considered all the relevant facts of the case.  The  appellant in this case, along with the co-accused, killed as many as 13  persons  for a flimsy reason.  All the victims were closely related to the  appellant and they were killed in the most dastardly manner.  Most of the  victims were sleeping when they were attacked.  The appellant did not spare  even the small kids with whom he had apparently no enmity. The appellant  did not have even a grain of mercy or human kindness in his heart.  Considering all these aspects, we do not think that this is a fit case where the  death penalty is to be commuted to life imprisonment.   On the question of death sentence awarded by the trial Court and  confirmed by the two judges of the High Court, the learned amicus curiae  appearing for the appellant made yet another submission.  According him in  view of the long delay in execution of the death sentence, the accused  deserves some sympathy and the death sentence should be commuted to life  imprisonment.  Before admitting the appeal, this Court tried to ascertain the  reasons for the delay.  The third Judge gave his opinion for conviction and  confirmation of death sentence on 29th February, 1996.  On 20th March, 1996

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the warrant was issued for execution of the death sentence.  The warrant was  received in the Naini Central Jail at Allahabad where the accused was  detained on 23rd March, 1996.  On 24th March, 1996 the appellant addressed  a letter to the Registrar of the Allahabad High Court for grant of certificate  to appeal to the Supreme Court under Article 134A of the Constitution of  India.  This was as per Section 415(2) of the Code of Criminal Procedure.   This application of the convict was forwarded to the Registrar of the High  Court on 25th March, 1996.  Several reminders were sent to the Registrar of  the High Court by Senior Superintendent, Central Jain, Naini, however,  there was no response from the High Court.  On 25th August, 2003 the  accused preferred a special leave petition to this Court.  This Court while  issuing notice on 5th December, 2003 called upon the jail authorities to state  why the sentence was not carried out.  This Court stayed the execution.   From the report submitited by the High Court it appears that lapse took place  in the High Court for which the High Court has taken action against the  erring officers.   For purposes of considering the plea on behalf of the appellant for the  death sentence being not carried out at this late stage and it being converted  to sentence of life imprisonment solely on ground of delay, our attention has  been invited to various judgments of this Court on the point.  In Sher Singh  and Others vs. State of Punjab 1983 (2) SCC 344, a decision by a three- judge Bench of this Court, it was observed:

"We are of the opinion that no absolute or  unqualified rule can be laid down that in every  case in which there is a long delay in the execution  of a death sentence, the sentence must be  substituted by the sentence of life imprisonment.   There are several other factors which must be  taken into account while considering the question  as to whether the death sentence should be  vacated\005The death sentence should not, as far as  possible, be imposed.  But, in that rare and  exceptional class of cases wherein that death  sentence is upheld by this Court, the judgment or  order of this Court ought not to be allowed to be  defeated by applying any rule of thumb (para 19).

These observations were made in the light of an earlier decision of  this Court upholding that if the delay in execution was for a period of two  years or more it should be considered sufficient to invoke Article 21 of the  Constitution and the sentence of death be substituted by sentence of  imprisonment for life, per T.V. Vatheeswaran vs. State of Tamil Nadu 1983  (2) SCC 68.  Ultimately, the issue was settled by a  judgment of five-Judge  Constitution Bench of this Court in Smt. Triveniben vs. State of Gujarat  1989 (1) SCC 678.   It was held as under:

"So long as the matter is pending in any court  before final adjudication even the person who has  been condemned or who has been sentenced to  death has ray of hope and he does not suffer that  mental torture which a person suffers when he  know that he is to be hanged but waits for the  doomsday.  The delay therefore which could be  considered while considering the question of  commutation of sentence of death into one of life  imprisonment could only be from the date the  judgment by the apex court is pronounced i.e.,  when the judicial process has come to an end (para  16).

It is well settled now that a judgment of court can  never be challenged under Article 14 or 21 and

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therefore the judgment of the court awarding the  sentence of death is not open to challenge as  violating Article 14 or Article 21.  The only  jurisdiction which could be sought to be exercised  by a prisoner for infringement of his rights can be  to challenge the subsequent events after the final  verdict is pronounced and it is because of this that  on the ground of long or inordinate delay a  condemned prisoner could approach this Court and  that is what has consistently been held by this  Court.  But it will not be open to the Supreme  Court in exercise of jurisdiction under Article 32 to  go behind or to examine the final verdict reached  by a competent court convicting and sentencing  the condemned prisoner and even while  considering the circumstances in order to reach a  conclusion as to whether the inordinate delay  coupled with subsequent circumstances could be  held to be sufficient for coming to a conclusion  that execution of the death sentence will not be just  and proper.  The nature of the offence,  circumstances in which the offence was committed  will have to be taken as found by the competent  court when finally passing the verdict.  It may also  be open to the court to examine or consider any  circumstances after the final verdict was  pronounced if it is considered relevant (para 22).

The only delay which would be material for  consideration will be subsequent to final decision  of the court, the delay in disposal of the mercy  petition or the delays occurring at the instance of  the executive (para 17).

Applying the ratio of judgment of this Court, it is to be seen that the  appeal filed by the appellant in this Court is being simultaneously disposed  of today.  Therefore, the time for consideration of delay in execution of  death sentence starts to run now and it cannot be said to be a case of delay in  execution of death sentence requiring death sentence being substituted by  the sentence of life imprisonment for reason of delay in execution of death  sentence.  In the facts of the present case we are unable to accept this request  made on behalf of the appellant.  The same is accordingly rejected.