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CASE NO.: Appeal (crl.)  648 of 2007

PETITIONER: Des Raj

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 07/09/2007

BENCH: R. V. Raveendran & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 648 OF 2007

RAVEENDRAN, J.

       In 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.  

2.      The 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.  

2.      Des 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

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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.

3.      The 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 :

(i)     In 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.   (ii)    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.   (iii)   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.   

The 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.  

4.      The 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

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[2002 (3) SCC 76] and Bablu v. State of Rajasthan [AIR 2007 SC 697].  

5.1)    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.  This Court held  :  

"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.  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.  

But 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.  

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  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. "

                                                               (emphasis 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 Singh :  

"\005. 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. \005..  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. \005."

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This 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 exhaustive) :  (a)     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).  (b)     Motive for commission of murder : When the murder is  committed for a motive which evinces total depravity and meanness.  (Examples: 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). (c)     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  infatuation. (d)     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 committed. (e)     Personality 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.

6.      The 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 :  (i)     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. (ii)    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 cases.  (iii)   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.

7.      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

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Prasad, put the matter in a somewhat better perspective. It held :

"Counting 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 justice."

In Bachhan 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 (supra) :           

"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 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."  

8.      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.  The 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.  We 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.  The 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.  

9.      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

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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.  

10.     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 remains undisturbed.