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PETITIONER: MACHHI SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT20/07/1983

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1983 AIR  957            1983 SCR  (3) 413  1983 SCC  (3) 470        1983 SCALE  (2)1  CITATOR INFO :  RF         1983 SC1155  (3,4)  F          1987 SC1721  (3)  R          1988 SC1785  (14)  R          1988 SC1883  (322)  R          1989 SC1335  (10)  E&D        1989 SC1456  (12,13)

ACT:      Penal Code  (Act 45  of  1860),  Section  302-Sentence- Imposition of death sentence-"Rarest of rare cases formula"- Guidelines to be adopted in identification of rarest of rare cases, explained-Evidence  Act (Act  1 of  1872) Section  9- Witnesses  indentifying   culprits  in  the  light  shed  by lantern-Appreciation of-Dying declaration, non-recording of- Evidentiary value-Doctrine  of benefit  of doubt, when to be invoked.

HEADNOTE:      A feud  between two  families has  resulted  in  tragic consequences. Seventeen  lives were  lost in the course of a series of  five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other, in  Punjab, on the night between August 12 and August 13, 1977. The seventeen persons who lost their lives and the three  who  substained  injuries  included  men,  women  and children related to one Amar Singh and his sister Piaro Bai.      In this  connection one  Machhi Singh  and  his  eleven companions, close  relatives and  associates were prosecuted in five  sessions cases,  each pertaining  to the  concerned village in  which the  killings took place. Machhi Singh was the common accused at each trial. The composition of his co- accused differed number-wise and identity-wise from trial to trial At the conclusion of the series of trials, the accused found guilty  were convicted  under appropriate  provisions. Four of  them were  awarded death sentence, whereas sentence of imprisonment  for life  was imposed on nine of them. They were also  convicted for  different offences and appropriate punishment was inflicted on each of them in that behalf. The order of  conviction and  sentence gave  rise to five murder references and  fourteen appeals  by the convicts before the High Court  of Punjab and Haryana. Having lost their appeals

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and  the   death  sentences   having  been  con-firmed,  the appellants have come in appeal by way of special leave.      The Court considered the following:      (a) What  normal guidelines are to be followed so as to identify the  "rarest of  rare cases"  formula for  imposing death sentence,  as spelled  out in Bachan Singh v. State of Punjab, [1980]  2 SCR  864; (b) Reliability of eye witnesses to a  crime under  light shed by the lantern in a village to identify connect  an accused to the crime; (c) invocation of the doctrine of benefit of doubt; 414 and (d)  the effect  of  non-summoning  the  magistrate  for recording dying declaration.      Allowing the  Criminal Appeals Nos. 79/81 and 86/81 and dismissing the other appeals, the Court ^      HELD :  1:1. The  extreme penalty  of death need not be inflicted except  in gravest  cases of  extreme culpability. Before opting for the death penalty the circumstances of the ’offender’ also  require  to  be  taken  into  consideration alongwith   the   circumstances   of   the   ’crime’.   Life imprisonment is the rule and death sentence is an exception. In other words 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. A 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. [433 A-E]      Bachan Singh  v. State  of Punjab  [1980] 2 S.C.C. 684, relied on,      1;2. In  order to apply these guidelines inter-alia the following questions  may be asked and answers : (a) Is there something uncommon about the crime which renders sentence of imprisonment for  life inadequate  and called  for  a  death sentence ?  (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. [433 E- G]      1:3. If  upon taking  an overall global view of all the circumstances in  the light of the aforesaid proposition and taking into  account the answers to the questions posed here in above,  the circumstances of the case are such that death sentence is  warranted, the  court would  proceed to  do so. [433 G-H]      2. The  villagers living  in villages where electricity has not  reached as  yet, get accustomed to seeing things in the  light   shed  by   the  lantern.  Their  eyesight  gets conditioned and  becomes accustomed  to the situation. Their powers  of  seeing  are  therefore  not  diminished  by  the circumstance that  the incident  is witnessed  in the  light shed by the lantern and not electric light. Paucity of light cannot, therefore,  improbablise the commission of the crime by the accused. [417 C-D]      3:1. When  a piece  of evidence  introduced and  relied upon by the prosecution itself creates a doubt (a reasonable doubt) as  regards the  complicity of  the accused,  even if there are  no infirmities in other evidence, the doctrine of

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benefit of  doubt must  be invoked by the court in favour of the accused. [422 F-G] 415      In the  instant case,  though there  is no infirmity in the evidence  of PW  Amar Singh  and PW  Mohindo to  connect Mohinder Singh  to the crime, the fact that the second rifle used in  the commission  of  crime  having  been  originally issued  to   one  Kashmir   Singh  does  not  satisfactorily establish the link.                                                 [422 B, E-F]      3:2. When  the deceased  was making  good recovery  and having regard  to the  condition of his health, no danger to his  life   was  apprehended  and  therefore  in  that  fact situation, the  magistrate was  not summoned,  no fault  can legitimately be  found on this score for getting the benefit of doubt in favour of the accused. Any statement made to the police by  such deceased  can be  subsequently allowed to be treated as dying declaration and evidence scanned. [429 G-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeals Nos. 78-79, 80-84, 85-86, 87 and 88-89 of 1981 and 419 of 1982.      Appeals by  Special leave  petitions from  the Judgment and Order  dated the  Ist September,  1980 of the Punjab and Haryana High  Court in  Murder Reference Nos. 14, 18, 16 and 1979 and  1 of 1980 and Criminal Appeal Nos. 933. 1176, 935, 977, 978, 972, 992, 979, 976, 980, 981, 991, 827 and 1105 of 1979.      R. L. Kohli and R. C. Kohli for the Appellants.      Harbans Singh and D. D. Sharma for the Respondent.      The Judgment of the Court was delivered by      THAKKAR, J:  Protagonists of  the "an  eye for  an eye" philosophy demand  "death-for-death". The ’Humanists’ on the other hand  press for  the other extreme viz., "death-in-no- case". A  synthesis has emerged in ’Bachan Singh v. State of Punjab(1) wherein  the  "rarest-of-rare-cases"  formula  for imposing death sentence in a murder case has been evolved by this Court.  Identification of the guidelines spelled out in ’Bachan Singh’  in order  to determine  whether or not death sentence should  be imposed  is one of the problems engaging our attention,  to which  we will  address ourselves  in due course.      A feud  between two  families has  resulted  in  tragic consequences. Seventeen  lives were  lost in the course of a series of  five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other in Punjab, on a night one would like 416 to forget but cannot forget, the night between August 12 and August 13,  1977. The seventeen persons who lost their lives and the three who sustained injuries included men, women and children related to one Amar Singh and his sister Piaro Bai.      In this  connection one  Machhi Singh  and  his  eleven companions. close  relatives and  associates were prosecuted in five  sessions cases,  each pertaining  to the  concerned village in  which the  killings took place. Machhi Singh was the common accused at each trial. The composition of his co- accused differed number wise and identity-wise from trial to trial. At the conclusion of the series of trials the accused found guilty  were convicted  under  appropriate  provisions Four of  them were  awarded death sentence, whereas sentence of imprisonment  for life  was imposed on nine of them. They were also  convicted for  different offences and appropriate

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punishment was inflicted on each of them in that behalf. The order of  conviction and  sentence gave  rise to five murder references and  fourteen appeals  by the convicts before the High Court of Punjab and Haryana. The High Court heard every individual appeal  separately, but  disposed of the group of appeals by  a common  Judgment for  the sake of convenience. The  present  group  of  appeals  is  directed  against  the aforesaid judgment rendered by the High Court. We will treat each of  the appeals compartmentally, and separately, on its own merits,  on the  basis of  the evidence  recorded at the trial in  each sessions  case giving  rise to the respective appeal. But  for the  sake of convenience we will dispose of the appeals  by this  common judgment.  In  order  to  avoid confusion, the  occurrence in  each village will be adverted to in the same manner in which the High Court has done viz., Crime No. I, IIA, IIB, III, IV and V. Motive:      The  aspect   regarding  motive   has  been   discussed exhaustively  in   the  third  paragraph  of  the  elaborate judgment rendered  by the  High Court.  We need  not set out this aspect  at length  or examine  it in  depth This aspect need not  therefore be  adverted to  in the  context of each crime  over   and  over  again  so  as  to  avoid  avoidable repetition. Suffice  it to  say that reprisal was the motive for the commission of the crime. Common Criticism:      The most  serious criticism  pressed  into  service  by learned counsel for the appellants in each of the appeals is common. 417 Instead of  dealing with  the identical  criticism,  in  the identical manner, repeatedly, in the context of each matter, we propose  to deal  with it at this juncture. The criticism is this.  It was  a dark  night.  Electricity  had  not  yet reached the  concerned village at the material time. In each crime the  appreciation of evidence regarding identification has to  be made  in the context of the fact-situation that a lighted lantern  was hanging  in the  court-yard  where  the victims were  sleeping on  the cots.  The light  shed by the lantern cannot  be considered  to be sufficient enough (such is the argument) to enable the eye witnesses to identify the culprits. This  argument has  been rightly  rebuffed by  the Sessions Court  and the  High  Court,  on  the  ground  that villagers living  in  villages  where  electricity  has  not reached as yet, get accustomed to seeing things in the light shed by  the lantern.  Their eyesight  gets conditioned  and becomes accustomed  to the situation. Their powers of seeing are therefore  not diminished  by the  circumstance that the incident is  witnessed in  the light shed by the lantern and not electric  light. Moreover,  identification did  not pose any serious  problem  as  the  accused  were  known  to  the witnesses. In  fact they  were embroiled  in a long standing family feud.  As the culprits had not covered their faces to conceal their  identity. it  was not  difficult to  identify them from  their facial features, build gait etc. Light shed by the  lantern  was  enough  to  enable  the  witnesses  to identify the culprits under the circumstances.      The concurrent finding of fact recorded by the Sessions Court and the High Court in this behalf does not, therefore, call for  interference at  the hands  of this  Court on this score.      Now we  will address  ourselves to the facts pertaining to the individual appeals. CRIME No. 1.      The  occurrence   giving  rise   to   the   proceedings

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culminating in  the appeal  before this  Court took place at Village Alahi  Baksh Badla  at about 8.30 p.m. on August 12, 1977. Four  members of the household of PW Amar Singh became the target  of the  assailants and  lost their  lives in the course of  the murderous  attack. The  four victims were the wife and  three sons  of PW  Amar Singh  viz., (1) Biban Bai (aged about  45); (2)  Gurcharan Singh  (aged about 15); (3) Jagtar Singh  (aged about  10) and  (4) Balwant  Singh (aged about 9). As luck would have it Amar Singh the head of the 418 household and his 10 years old daughter, PW Mohindo, escaped the murderous  assault and  survived to tell the tale of the ghastly murder in the Court. Evidence of PW Amar Singh shows that on  the unfortunate  night, he  and the  members of the household were  sleeping  in  the  courtyard.  There  was  a lighted lantern  in the  courtyard which  was placed  on the small boundary  wall of  the kitchen.  P.W. Amar  Singh  was sleeping on  one cot.  PW Mohindo, his daughter who survived the attack,  was also  sleeping in the same cot. Next to him was another  cot on  which his  wife Biban Bai was sleeping. And an  infant child  was sleeping with her on the same cot. His two  sons,  Gurcharan  Singh  and  Kulwant  Singh,  were sleeping together  on another  cot just  nearby.  P.W.  Amar Singh suddenly  woke up  on hearing the noise of the barking of a  dog since he was half awake being apprehensive of some trouble because  of a  murder case  which was  pending in  a criminal court  against his  relations. Amar Singh sprang up on hearing  the noise  and instinctively  went inside, where some sarkana reeds were heaped, and concealed himself there. He was  peeping from his place of hiding and was able to see what was happening. Barely had he done so when he espied the five appellants, who were known to him, enter the courtyard. Appellant Machhi  Singh and  appellant Mohinder  Singh  were each armed  with  a  rifle.  Their  three  companions  viz., Appellant Bhajan  Singh, Kashmir  Singh, and,  Chinna Singh, were armed with kirpans. Appellant Machhi Singh fired a shot at Biban  Bai, who  was lying  on the  cot. At the same time appellant Mohinder  Singh fired  a shot at Balwant Singh who was lying  on a  cot.  Appellant  Machhi  Singh  then  fired another shot at Jagtar Singh and yet another shot at Kulwant Singh. Appellant  Mohinder Singh on his part fired a shot at Gurucharan Singh.  It is the version of P.W. Amar Singh that his daughter  P.W. Mohindo managed to get beneath the cot on which he  was previously  lying while  the  assailants  were firing at  the different  victims. The  three companions  of appellants Machhi Singh and Mohinder Singh, namely, Kashimir Singh, Chinna  Singh, and,  Bhajan Singh,  gave kirpan blows which were  aimed at  the head  of Biban Bai who had already been injured  by rifle  shots. The kirpan blows did not fall on the head of Biban Bai but struck the upper surface of the table which  was  lying  nearby.  Thereafter  all  the  five culprits fled  from there  with  their  respective  weapons. After day  break PW  Amar Singh  left the  house in order to lodge a report of the occurrence with P.W. 31 Head Constable Wassan Singh. 419      Seven persons  were prosecuted  in connection with this incident. Five  of them have been acquitted. Only two of the original seven  accused, viz.,  Appellants Machhi  Singh and Mohinder Singh  have been convicted for murder and sentenced to death.  We propose  to deal with the appeals preferred by them separately. Appellant Machhi Singh:      As far  as Machhi  Singh is  concerned the  finding  of guilt recorded by the Session Court and affirmed by the High

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Court rests on the testimony of two eye witnesses viz., P.W. Amar Singh  and his  10  year  old  daughter  P.W.  Mohindo. Evidence has  also been adduced to establish that one of the rifles used  in the course of the murderous assault had been issued to  Machhi Singh  in his  capacity as  an officer  of Punjab Homeguards.  The evidence  of  the  ballistic  expert establishes that  the said  rifle had been recently used and some of  the empty  cartridges found  from the  scene of the occurrence were  fired from  this rifle.  This  evidence  is further corroborated  by  the  evidence  pertaining  to  the recovery of  the rifle  at the  instance of appellant Machhi Singh which  has been accepted by the Sessions Court and the High Court.      Learned Counsel  for the  appellant contended  that the evidence of  the two  eye witnesses  namely, P.W. Amar Singh and P.W.  Mohindo was  not such as could be implicity relied upon, and  the rest  of the evidence was neither sufficient, nor  satisfactory   enough,  to  bring  home  the  guilt  to appellant Machhi Singh.      The Sessions  Court and  High Court  have accepted  the evidence of  P.W. Amar  Singh and  his daughter P.W. Mohindo after close  and careful  scrutiny of  the same.  We do  not think that  there is  any justification  to take a different view in  regard to  the assessment  of their  evidence.  The presence of Amar Singh and his daughter Mohindo at the scene of occurrence  is natural  inasmuch as  the occurrence  took place at  the house of Amar Singh. Counsel for the appellant has assailed  the finding recorded by the Sessions Court and affirmed by  the High  Court by  pressing into  service  the argument that  as there  was only one lantern burning in the courtyard, and as it was a dark night, it being the 14th day of the  second half  of the  lunar  month,  Amar  Singh  and Mohindo could  not have  identified the  culprits. It  is no doubt true  that it  was a  night preceding the ’amavashya’. All the  same the  evidence clearly  shows that  a lamp  was burning in the courtyard. This aspect has already been dealt 420 with a  short while  ago. For  the reasons  indicated in the course  of   the  earlier   discussion  we  think  that  the concurrent view  taken by  the Sessions  Court and  the High Court  that   there  was  sufficient  light  to  enable  the identification of the culprits must be affirmed. Besides, it is a  pure question of appreciation of evidence which cannot be reagitated  before us.  Even so we have considered on our own the  evidence on the point and we are satisfied that the view taken  by the  Sessions Court  and the  High  Court  is unexceptionable.      Counsel for  the  appellant  next  contended  that  the evidence pertaining  to the  recovery of  the rifle  and the evidence adduced  by the  prosecution in  order to establish that one  of the rifles used in the course of the occurrence was issued  to appellant  Machhi Singh in his capacity as an officer of  the Punjab  Homeguards was  not satisfactory and reliable.  The  Sessions  Court  and  the  High  Court  have accepted the prosecution evidence in this behalf. We have on our own  perused the  evidence  and  we  see  no  reason  to disbelieve the  evidence connecting  appellant Machhi  Singh with the  weapon of offence (Ex. P-18). The evidence of P.W. 15 Shri  Yashpal, Platoon  Commander of Punjab Homeguard, is supported by  entry Ex  32/A in the Register relating to the issuance of  arms and  ammunitions to  the volunteers of the Homeguards. The  evidence of P.W. 32 Narinder Singh, Quarter Master of  Punjab Homeguards,  conclusively establishes that the rifle was issued to appellant Machhi Singh. The evidence shows that appellant was personally known to the witness. He

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also identified  the signature  of appellant Machhi Singh at point marked  ’B’. It may be mentioned that in the course of his statement  under  Sec.  313  of  the  Code  of  Criminal Procedure,  appellant   Machhi  Singh   admitted  that   the signature at  Ex. P.W.  32 A  was his  signature.  Of-course according to him the said signature had been obtained by the police under coercion. Unless we hold that the Investigating Officer and  the Officers of the Homeguards had entered into a conspiracy  to concoct evidence against Machhi Singh, this evidence cannot be disbelieved. There is no warrant for such an assumption.  Their evidence is otherwise flawless and has remained unshaken.  We therefore see no reason to disbelieve the testimony of P.W. 32 (Quarter Master Narendra Singh) and P.W. 15  (Platoon Commander Yashpal). On a close and careful scrutiny of  the evidence  on this point the Session’s Court and the  High Court  have rightly  reached the conclusion to the effect  that rifle  Ex. P.18  was  issued  to  appellant Machhi Singh  in his  capacity as  a member  of  the  Punjab Homeguards on  February 12, 1977 and that the said rifle and the ammunition had remained with appellant Machhi Singh ever 421 since. On  a close scrutiny of the evidence on this point is unassailable and  the view  taken by  the Sessions Court and the High  Court is unimpeachable. The rifle in question, Ex. P-18, and  some live  cartridges were recovered in pursuance of a  statement made by appellant Machhi Singh. The evidence of P.W. 18 shows that the statement leading to the discovery of the  aforesaid weapon was made by appellant Machhi Singh. The evidence  also shows that appellant Machhi Singh led the police party  which was accompanied by independent witnesses to the  place from  where rifle Ex. P-18 and live cartridges were recovered.  The Sessions  Court and the High Court have accepted this  evidence and  we do  not see  any  reason  to disbelieve the  same. Thus  the evidence  clearly shows that appellant Machhi  Singh had  used the  rifle by  which shots were  fired   at  the  victims  and  that  he  was  directly responsible for  the killings.  The order  of conviction  is therefore unassailable  and must  be confirmed. We will deal with the  question  of  sentence  at  the  fag  end  of  the judgment. Appellant Mohinder Singh:      So far  as appellant  Mohinder Singh  is concerned  the evidence connecting him with the crime falls into two parts. The first  part of  the evidence consists of the evidence of P.W.  Amar  Singh  and  P.W.  Mohindo.  Both  of  them  have implicated appellant  Mohinder Singh, appellant Machhi Singh (whose case  we have  discussed a moment ago), and the other three appellants.  The criticism  levelled in the context of appellant Machhi  Singh has  been repeated in the context of the evidence  connecting appellant  Mohinder Singh  with the crime. We  have already  evaluated the evidence of these two eye witnesses.  We need  not therefore  reiterate  the  same reasoning in  the context  of appellant  Mohinder Singh  for repelling the criticism on this score.      The second  part of  the  evidence  connects  appellant Mohinder Singh  with the  second rifle which was used in the course of  the commission  of the  crime. The Sessions Court and the  High Court have accepted the evidence on both these points.  Counsel   for  the  appellant  has  challenged  the validity of  the finding  recorded by the Sessions Court and the High  Court on these two points. In our opinion the most important evidence  from this  stand point  is the  evidence adduced by  the  prosecution  in  order  to  establish  that appellant Mohinder  Singh was in possession of the weapon of offence namely,  the second  rifle which  was  used  by  the

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culprits. Counsel  is  right  in  his  submission  that  the evidence on this point does not 422 satisfactorily establish  the link.  In  fact  the  evidence shows that  the second  rifle used  in the commission of the crime was  originally issued  to one  Kashmir Singh.  Thus a doubt is  created in  regard to  the identity of the culprit who fired the second rifle.      Admittedly, the  weapon in  question was  not issued to appellant Mohinder  Singh. The  weapon alongwith  ammunition (20 rounds)  was originally  issued to P.W. 27 Kashmir Singh by Punjab  Homeguards ‘B’  Company on 16th October 1974. The official records  evidence this  fact. There is no record to show that  this rifle was returned by PW 27. The evidence PW 27 that one Kaka Ram, a Platoon Commander of Homeguards, had taken back  the rifle and the ammunition from him and handed over the  same to appellant Mohinder Singh a few days before 13th  April   1977  in  the  presence  of  PW  27  has  been disbelieved by  the Sessions  Court. The  High Court has not given any  convincing reason  to justify  taking a different view. Thus  the link  between  the  weapon  of  offence  and appellant Mohinder  Singh is  not established.  In fact  the evidence shows  that it  was issued  to PW  27 some  3 years before the  occurrence. Even  if the prosecution evidence is accepted at  its face  value it  does not establish that the weapon was  with appellant  Mohinder Singh  at any  point of time proximate  to the  point of  time of the offence. Under the circumstances we are unable to agree with the High Court that appellant  Mohinder Singh  was  in  possession  of  the weapon of  offence at  the point  of time of the offence. In view of  this lacuna  in the  evidence we are unable to hold that the  second rifle  which was  used in the commission of the crime was fired by appellant Mohinder Singh.      This dimension  gives rise  to a  dilemma. A  piece  of evidence introduced  and  relied  upon  by  the  prosecution itself creates  a doubt  (a reasonable doubt) as regards the complicity of  the appellant.  Though  we  do  not  see  any infirmity in  the evidence of PW Amar Singh, and PW Mohindo, in view  of this  factor, which  speaks  in  favour  of  the appellant, we  must invoke the doctrine of benefit of doubt. We accordingly  accord the  benefit of  reasonable doubt  to Appellant  Mohinder  Singh.  The  order  of  conviction  and sentence, in so far as he is concerned must therefore be set aside. We  accordingly acquit  Appellant Mohinder  Singh and direct that  he be  set at  liberty forthwith  unless he  is required to be detained in the context of some other order. 423 Crime No. II A & II B:                             II A      At about  9-10 p.m.  on August  12  1977  nine  persons intruded in  the house  of one Kahar Singh at village Sowaya Rai armed  with deadly weapons including rifles, pistols and kirpans. They  killed two  inmates of  the  household  (Smt. Ghamobai and  Smt. Rajobai)  and injured the third one (Smt. Nankobai) by gun shots.                             II B      From there, they straightway proceeded to a place known as ’Kho  Kunjuka’  situated  at  a  distance  of  about  two furlongs from  the said village. They forcibly intruded into the house  of one Bishan Singh. They attacked the inmates of the house  and killed Bishan Singh, Smt. Paro, and her child Balbir Singh,  by firing  rifle shots. PW. 2 Hakam Singh was lying on  a cot  outside the compound of the house of Bishan Singh. He  was apprehensive of his life and fled from there. Two of  the culprits  viz., Machhi  Singh, and  Jagir Singh,

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chased him and fired at him. As a result of this Hakam Singh sustained gun shot injuries.      In connection  with these  two incidents the appellants were tried  by the  Sessions Court for various offences. The Sessions Court convicted the appellants for an offence under Sec. 302  I.P.C. read with Sec. 149 I.P.C. as in its view it was  established  beyond  reasonable  doubt  that  the  nine appellants had  formed an  unlawful assembly with the common object of  committing murder of Smt. Ghamobai, Smt. Rajobai, Smt. Parobai  and Balbir  Singh. The  appellants  were  also found guilty  of an  attempt to  commit the  murder of PW 20 Nankobai, and,  PW 22 Hakam Singh, who sustained injuries by gun shots in the course of these incidents, but who survived the  murderous  assaults  to  narrate  the  version  of  the incident before  the Court. The Sessions Court imposed death penalty on  three of  the appellants,  viz.,  Machhi  Singh, Kashmir Singh,  and Jagir  Singh.  The  remaining  six  were sentenced to  undergo imprisonment  for life. The High Court confirmed the order of conviction and sentence and dismissed the appeals preferred by the appellants.                             II A      So  far   as  the   first  incident  is  concerned  the conviction of the appellants rests on the testimony of three witnesses viz,, 424 PW 16  Kaka Ram,  PW  21  Bagicha  Singh,  and  PW  20  Smt. Nankobai. Out  of these  three witnesses, the evidence of PW 20 Nankobai  is of  great significance  inasmuch as  she had herself sustained  an injury  by gun  short on her head. The fact that  Smt. Nankobai  sustained gun  shot injury  in the course of  this transaction is satisfactorily established by the medical  evidence. Now  PW  20  was  an  inmate  of  the Household of  Kehar Singh.  Her presence  at the  house  was therefore natural.  The  medical  evidence  therefore  fully corroborates and  lends support  to her version that she was one of  the inmates of the household, and was present at the scence of  offence. Her  presence at the time of the offence cannot therefore  be disputed.  She being an injured witness her evidence  is entitled  to great  weight. There  is an in built guarantee that she was an eye witness to the incident. Her evidence  convincingly establishes  that the  appellants were the  persons who  had intruded  in the  house of  Kehar Singh and committed the crime resulting in the death of Smt. Gamobai and  Smt. Rajobai,  both of  whom succumbed  to  the injuries  inflicted   on   them.   Her   testimony   further establishes that  she herself was injured by the rifle shots in the course of the incident by appellant Kashmir Singh. It was a matter of sheer luck that PW 20 did not succumb to the injuries and  survived to  till the tale. There is no reason to doubt  or disbelieve  her testimony.  It is no doubt true that she  had remained  unconscious for  five  or  six  days before she  regained consciousness at the hospital. But then her evidence clearly shows that she had sustained the injury only after  Smt. Gamobai, and Smt. Rajobai were shot dead by the assailants.  It was  only after she sustained the injury that she  became unconscious.  Her  evidence  that  she  had witnessed the  murderous assault  on Smt.  Gamobai  and  Sm. Rajobai and  had  identified  the  assailants  has  remained unshaken and has been accepted by the Sessions Court and the High Court.  There is  no valid  reason to  take a different view. The  argument about insufficiency of light has already been  negatived.   The  evidence   of  PW  20  is  therefore sufficient to uphold the order of conviction recorded by the courts below.  Furthermore, there  is the evidence of PW 16, Kaka Ram,  and PW  21, Bagicha Singh. PW 16 occupies a house

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in the neighborhood. He came out from the house upon hearing the report  of fun  fire. He  was standing outside the house and had  witnessed  the  incident.  He  had  identified  the appellants as the culprits. His evidence is reinforced by PW 21 Bagicha  Singh who  was  sleeping  on  the  roof  of  the adjoining house.  He had  also witnessed  the  incident  and identified the assailants. They are not 425 shown to  be interested witnesses who would concoct a story. Why  should  they  do  so  ?  In  fact  they  were  exposing themselves   to   considerable   risk.   On   probabilities, therefore, it is least likely that these two witnesses would falsely implicate  the appellants.  Their evidence  has been accepted by the Sessions Court and the High Court. We see no reason to do otherwise, The finding of guilt recorded by the Sessions Court and the High Court in regard to this incident must therefore be unhesitatingly confirmed.                            (II B)      In-so-far as the second incident is concerned, the most important witness  is PW  22 Hakam  Singh,  inasmuch  as  he himself had  sustained injuries by gun shot in the course of the incident  in question That he was present at the time of the occurrence  and had  witnessed the incident is therefore incapable of being disputed. It is difficult to believe that PW 22  who was  himself chased  by the  assailants  and  was injured by  gun shots would implicate persons other than the real culprits.  His evidence  further shows  that two of the culprits viz.,  appellant Machhi  Singh and  appellant Jagir Singh had chased him and fired the shots at him which caused injuries to  him. The  medical evidence  fully supports  his testimony and  establishes that  he had  sustained gun  shot injuries in  the course  of this  incident. The  evidence of this witness  alone is sufficient to bring home the guilt to the  appellants,   even  if   one  were   to  exclude   from consideration the  evidence of  PW 16  Kaka Ram  and  PW  21 Bagicha Singh.  There is  however, no reasons to do so. Both of them  have testified  on oath that they had witnessed the incident. They  are not  shown to  be  interested  witnesses there is  no reason  why they  should falsely  implicate the appellants and expose themselves to the obvious risk arising therefrom. The  Sessions  Court  and  the  High  Court  were perfectly  justified   in  accepting  and  acting  upon  the testimony  of  these  two  witnesses  whose  evidence  lends further strength  and support to the evidence of the injured witness viz.,  PW 22  Hakam Singh.  The stock criticism that the culprits  could not have been identified in the light of the lantern  which was hanging in the courtyard, has already been dealt  with and  repelled  earlier.  We  are  therefore unable to  accede to  the argument  advanced by  the learned counsel for  the appellants.  The finding  of guilt  and the order of  conviction must therefore be confirmed. As regards sentence, the  sentence of  imprisonment of  life imposed on six of the 426 appellants and  the other  sentences imposed on them have to be  consequently   confirmed.  Their   appeals  will   stand dismissed. So  far as appellants Machhi Singh, Kashmir Singh and Jagir  Singh  are  concerned,  the  Sessions  Court  has imposed death  sentence on  each of them. The High Court has confirmed it. On our part, we will deal with the question of sentence imposed  on them  in the  concluding  part  of  our judgment. Crime No. III      One Wanjar  Singh (65)  and his  grand son Satnam Singh (16) were killed by gun shots in the course of this incident

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at the  house of Wanjar Singh in village Mamujoa at about 11 p.m. on the night of August 12, 1977. The only inmate of the house who  escaped was PW 16 Smt. Sabban, the wife of Wanjar Singh who was narrated her story in the following manner:-      She was  sleeping in  the courtyard  of her  house.  At about 11  p.m. she  woke up  and saw  appellant Machhi Singh armed with  rifle, and  his two  brothers, appellant  Chhina Singh and  appellant  Kashmir  Singh,  armed  with  Kirpans, standing near  the feet  of Satnam Singh who was sleeping on the cot. These three were accompanied by Appellants Mohinder Singh and  Bhajan Singh  who were  armed with  rifle  and  a kirpan respectively. Appellant Kashmir Singh flashed a torch at Satnam  Singh. Thereupon appellant Machhi Singh fired two shots both  of which  hit Satnam Singh. Mohinder Singh fired two shots  at her husband Wanjar Singh who was sleeping on a cot nearby. Wanjar Singh and her grand-son Satnam Singh died on the spot on their cots. She shouted for help and began to cry. The  Appellants, who  were about to leave, turned back. Appellant Machhi  Singh fired a shot at her which missed her but hit her bullock (which was tied in the courtyard) on its right leg.  The witness  raised an alarm and cried for help. But no  one came  during the night. At dawn Chowkidar Sardar Ram came  to the  spot. She requested him to remain near the dead bodies. She herself proceeded to police-station Gur Mar Sahay and lodged F.I.R. Ex. PW 10/B.      The presence  of Smt.  Sabhan at her own house at night time is but natural. Her husband and her grand-son have been killed. She  is the  lone survivor  of  the  household.  Her evidence  therefore   assumes  great   importance.   It   is inconceivable that the witness, who 427 has lost her husband, as also her grand son, would implicate persons other  than the  real culprits.  The  only  argument pressed  into  service  was  the  stock  argument  regarding insufficiency of  light. It  was  negatived  by  the  courts below.  We  have  already  dealt  with  and  negatived  this argument  for   reasons  indicated   earlier.  Her  evidence furthermore shows  that appellant  Kashmir Singh had flashed his torch at her husband (Wanjar Singh) and at her grand-son (Satnam Singh).  That she herself remained alive to tell the tale was  a stroke  of luck.  The appellants had shot at her but the  rifle shot  hit the bullock instead of hitting her. The culprits  were naturally,  in a  hurry to get away. They would not  have waited to ascertain whether she was hit. Her evidence remains unshaken. The Courts below have, therefore, rightly considered  it to be creditworthy and safe for being acted upon.  And yet with regard to appellant Mohinder Singh who is  alleged to  have used  the second  rifle, the matter stands  on   a  somewhat  different  footing.  The  evidence connecting the  appellant with  the rifle in question in the present  case  is  the  very  same  evidence  that  we  have disbelieved in  the context of crime No. 1. Official records show, and it is the case of the prosecution itself, that the rifle was  issued to  PW 15  Kashmir Singh  on 16th  October 1974. The  evidence adduced  in order  to show  that it  was taken back and handed over to appellant Mohinder Singh a few days before  13th April 1977 does not inspire confidence. We agree with  the reasoning of the Sessions Court. We need not repeat the  reasons which  we have set out at some length in the course  of discussion pertaining to crime No. 1. Suffice it to  say that the doctrine of benefit of doubt requires to be invoked  on the  facts of this case. We accordingly allow the appeal  of  Mohinder  Singh,  set  aside  the  order  of conviction and  sentence passed against him, and direct that he be  set at  liberty forthwith unless he is required to be

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detained in some other connection.      In so  far as the rest of the appellants are concerned, the evidence  of this  witness has  been accepted  and acted upon by the Sessions Court and the High Court, and we do not see any  reason to do otherwise. Under the circumstances the finding of guilt recorded by the Sessions Court and the High Court for the aforesaid offence against the other appellants must be  confirmed. Turning  to the  question of sentence, a death sentence  has been  imposed on  Machhi Singh.  We will consider the question as to whether death sentence is called for in the concluding part of our judgment. In so far as the rest of the appellants are concerned, the sentence of 428 imprisonment for life and the other sentence imposed on each of them  must be  confirmed. Their  appeals  will  therefore stand dismissed. Crime No. IV      The incident  occurred at  Village Kamrewala at about 1 a.m. on  the night between 12th August and 13th August 1977. Mohinder Singh,  aged about  32, the  brother of Amar Singh, was shot  dead. The F.I.R. was lodged within half an hour at about 1.30  a.m. by Piaro Bai wife of victim Mohinder Singh. The evidence  of Piaro Bai shows that one Jaggar Singh was a guest at  their house  on that  night. Her  husband Mohinder Singh was sleeping on one cot. The guest, PW 4 Jaggar Singh, was sleeping  on another cot nearby him. The witness herself was sleeping  on a  cot alongwith  her two  children in  the courtyard. A  lighted lantern  was hanging  on a  peg on the wall. At about 1 a.m. someone from outside the house shouted for her  husband. She  woke him up and told him about it Her husband was  in the  process of  sitting up  on the cot when five persons  intruded into  the courtyard.  Only one of the five  intruders   (Machhi  Singh)  was  known  to  her.  The remaining four  were not known to her, One of them was armed with a rifle and the rest were armed with kirpans. Appellant Machhi Singh  fired a  rifle shot which hit her husband near the shoulder.  Her husband  succumbed to  the injury  on the spot. The  culprits thereafter left the house. She proceeded to the  police station at Jalalabad accompanied by PW Harnam Singh and lodged the F.I.R. at 1.30 a.m.      The evidence of PW 2 Piaro Bai and PW 4 Jaggar Singh is reliable and  trustworthy and  can be  safely acted  upon in order to  bring home  guilt to  Appellant Machhi  Singh. Her presence at  her own house at night time is but natural. The evidence of PW 4 Jaggar Singh also corroborates the evidence regarding her  presence and  the occurrence.  PW 2  has  not implicated by  name anyone other than Appellant Machhi Singh in her  F.I.R. Her  evidence  is  to  the  effect  that  the companions of  appellant Machhi Singh were not known to her. This shows  that she  is a  conscientious witness. The usual argument regarding  inadequacy of light must be rejected for the reasons  indicated earlier.  In this case the F.I.R. was lodged within  half an  hour of the occurrence. The evidence of PW  4 who was a guest at the house fully corroborates the testimony of PW 2. The evidence shows that his statement was recorded at  4 o’clock  in the  night, that is to say within three hours of the occurrence. His 429 evidence also  shows that  appellant Machhi  Singh had fired the rifle  shot. This evidence has been rightly accepted and acted upon  by the Sessions Court and the High Court. We see no reason  to dislodge  this concurrent  finding of fact. We must therefore  confirm the finding of guilt recorded by the Sessions Court  as affirmed  by the  High Court in so far as appellant Machhi  Singh is  concerned. We will deal with the

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question of sentence at a subsequent stage. Crime No. V.      At about  3.30 a.m.  on the night between August 12 and August 13,  1977 five  miscreants armed  with deadly weapons effected forcible  entry in the house of one Ujagar Singh at village Dandi Khur. They attacked the inmates and killed his sister Palobai,  35, and four near relatives of Palibai viz: (1) her father-in-law Sahib Singh, 70, (2) her mother-in-law Mattobai, 60,  (3) her husband Jit Singh, 35, (4) last named Jit Singh’s  cousin Mukhtiar  Singh, 25.  Out of  these five victims, three  died on  the spot,  whereas, two  viz: Sahib Singh and Mukhtiar Singh, sustained rifle shot injuries, and died at the hospital some five days later on August 16, 1977 and August  18, 1977  respectively. The incident occurred at about 3.30.  a.m. and the F.I.R. was lodged within about six hours at 9.30 a.m. by PW 37 Ujagar Singh.      The order  of conviction  (passed by the Sessions Court and affirmed  by the  High Court) is inter-alia based on the dying declaration  of Mukhtiar  Singh. He  was fired  at and injured soon  after midnight  in the early morning of August 13. He  was removed to hospital on that very day. His police statement (which  has been  subsequently treated  as a dying declaration) was  recorded on the 16th i.e. three days after the assault.  He died  on the  18th,  two  days  later.  The evidence shows  that he  was in  fit  condition  to  make  a statement  and   his  statement  was  truly  and  faithfully recorded. His  statement has  been considered  to be genuine and true by the Sessions Court and the High Court. We are of the same  opinion. It is true that the dying declaration has not been  recorded by  a magistrate.  But then  the evidence shows that  Mukhtiar Singh  was  making  good  recovery  and having regard  to the  condition of his health, no danger to his life  was apprehended.  It was  in this situation that a magistrate  was   not  summoned.   Thus,  no  fault  can  be legitimately  found    on  this  score.  Besides,  the  only question   of    importance   now    is   as   regards   the creditworthiness of  the statement  which has been recorded. Since this statement has been found to be genuine and 430 true nothing  can  detract  from  its  value.  The  evidence provided by  the dying  declaration is by itself good enough to support  the order  of conviction.  But this  is not all. Also available is the evidence of PW 37 Ujagar Singh and his daughter-in-law, Munibai  (PW 38). The evidence of these two witnesses lends  full corroboration to the dying declaration of the  victim, and  has been  rightly relied  upon  by  the Sessions Court and the High Court. We have no reason to view the evidence askance. The presence of these two witnesses in the household  was natural.  Their evidence  shows  that  on hearing the  report of  gun they  had  concealed  themselves behind a  herd of cattle and had witnessed the incident from there. We  have no  reason to  disagree with the view of the Sessions Court  and the  High Court  that their  evidence is reliable. There  is no  substance in  the argument  that the culprits could not have been identified as the light shed by the lantern  was not  adequate to  enable identification. We have already  spelled out  our reasons  for  repelling  this contention. The  finding of guilt is thus fully supported by evidence. We  accordingly confirm  the same  unhesitatingly. Two of  the five  appellants (viz:  Machhi Singh  and  Jagir Singh) have  been sentenced  to death. We will deal with the question of sentence in so far as they are concerned after a shortwhile. In  regard to  the remaining  three, viz: Phuman Singh, Jagtar  Singh and Kashmir Singh son of Wadhawa Singh, the sentence  imposed by  the courts  below for  the offence

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under Sec.  302 read  with 149  of IPC;  and other offences, must be confirmed. Their appeals will stand dismissed. Death Sentence      Having dealt with the appeals on merits from the stand- point of  proof of  guilt and  validity or  otherwise of the order of  conviction, we  now come  face to  face  with  the problem indicated  when the  curtain was lifted, namely, the application of the rarest-of-rare-cases rule to the facts of individual cases  in the context of the relevant guidelines. Some reflections  on  the  question  of  death  penalty  may appropriately be  made before we tackle the said question in the perspective of the present group of appeals.      The reasons  why the  community as  a  whole  does  not endorse  the   humanistic  approach   reflected  in   "death sentence-in-no-case" doctrine  are not  far to  seek. In the first place,  the very  humanistic edifice is constructed on the foundation  of "reverence  for life"  principle. When  a member of  the community  violates this  very  principle  by killing another member, the society may not feel itself 431 bound by  the shackles of this doctrine. Secondly, it has to be realized  that 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. The very existence of  the rule  of law and the fear of being brought to book  operates as  a  deterrent  to  those  who  have  no scruples in  killing others  if it  suits their  ends. 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  entrain 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, such as for instance: I 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. For instance,      (i)  When the  house of  the victim  is set aflame with           the end in view to roast him alive in the house.      (ii) When the  victim is  subjected to  inhuman acts of           torture or  cruelty in order to bring about his or           her death.      (iii)When the  body of the victim is cut into pieces or           his body is dismembered in a fiendish manner. II Motive for Commission of murder      When the  murder is committed for a motive which evince total depravity  and meanness. For instance when (a) a hired assassin commits  murder for the sake of money or reward (2) a cold blooded 432 murder is  committed with  a deliberate  design in  order to inherit property  or to gain control over property of a ward

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or 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. (c)  a murder is committed in the course for betrayal of the motherland. III Anti Social or Socially abhorrent nature of the crime      (a) When  murder  of  a  Scheduled  Caste  or  minority community etc., is committed not for personal reasons but in circumstances which  arouse social  wrath. For instance when such a crime is committed in order to terrorize such persons and frighten  them into  fleeing from a place or in order to deprive them  of, or  make them  with a view to reverse past injustices and in order to restore the social balance.      (b) In  cases of  ’bride burning’ and what are known as ’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. IV Magnitude of 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. V Personality of Victim af murder      When the  victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation,  for murder. (b) a helpless woman or a person rendered helpless  by old  age or  infirmity  (c)  when  the victim is  a person  vis-a vis  whom the  murderer is  in  a position of  domination or  trust (d)  when the  victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for  political   or  similar  reasons  other  than  personal reasons.      In this  background the  guidelines indicated in Bachan Singh’s case  (supra) will have to be culled out and applied to the  facts of  each individual case where the question of imposing  of   death   sentences   arises.   The   following propositions emerge from Bachan Singh’s case: 433      (i)  the extreme penalty of death need not be inflicted           except in gravest cases of extreme culpability;      (ii) Before  opting   for   the   death   penalty   the           circumstances of the ’offender’ also require to be           taken    into    consideration    alongwith    the           circumstances of the ’crime’.      (iii)Life imprisonment  is the  rule and death sentence           is an  exception. In  other words  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.      (iv) A 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.      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   life           inadequate and calls for a death sentence?

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    (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 ?      If upon  taking an  overall  global  view  of  all  the circumstances in  the light of the aforesaid proposition and taking into  account the answers to the questions posed here in above,  the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. 434      In the  present group  of appeals  we are now concerned with the  death sentence  imposed on  appellants (i)  Machhi Singh (ii)  Kashmir Singh; (iii) Jagir Singh by the Sessions Court as confirmed by the High Court. Machhi Singh:      The  High   Court  in  its  extremely  well  considered judgment has  assigned the  following reasons  for  imposing death penalty  on appellant  Machhi Singh  in the context of each of  the six  crimes. We  can do no better than to quote the said  reasons in  the very  words employed  by the  High Court in the context of each crime: Crime No. 1 (Crl. Appeal No. 78-79/81, Common)      "Machhi Singh killed Biban Bai and Jagtar Singh whereas Mohinder Singh  killed Balwant  Singh  and  Gurcharan  Singh which  has   attracted  on   them  death  penalty.  Now  the circumstances of  the case  do reveal  that it  was a  cold- blooded murder and the victims were helpless and undefended. And  what  was  their  fault,  except  that  they  were  the immediate family of Amar Singh. The offence committed was of an exceptionally  depraved and heinous character. The manner of its execution and its design would put it at the level of extreme atrocity  and cruelty.  The deceased  woman and  her children had offered no offence to Machhi Singh and Mohinder Singh." CRIME NO.11 (Crl Appeal No.80-84/81 Common)      "We have  found that  two innocent helpless women named Ghamo Bai  and Rajo  Bai were  brutally killed in a helpless and defenceless  state in  their own  house and  similarly a veteran couple  namely Bishan  Singh and  his wife  Paro Bai were killed  by Machhi  Singh and  Jagir Singh appellants in similar circumstances.  The crime committed carries features which could  be utterly  horrendous especially  when we know the weapons  and the  manner of their use. The victims could offer no  resistance to  the  accused  appellants.  The  law clamours for  a sterner  sentence; the  crime being heinous, atrocious and cruel." CRIME NO. 111 (Crl. Appeal No. 85-86/81, Common)      "An old  man Wanjar  Singh and  young man  Satnam Singh were put  to death  for which  Machhi Singh was sentenced to death for  committing the  murder of the latter and Mohinder Singh was 435 sentenced to  death for committing the murder of the former. These two  defenceless and  helpless men  were put  to death while  asleep.  The  crime  was  gruesome  and  cold-blooded revealing the propensity of the accused appellants to commit murder." CRIME NO. IV (Crl. Appeal No. 87/81, Common)      "A young  man named  Mohinder Singh,  a bread-earner of the family, was put to death by Machhi Singh while asleep in his blissful  abode. The  crime was  pre-mediated and  hair- raising to  the society at large in the sequence of which it came to be committed creating a great risk of serious bodily harm and death to many persons."

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CRIME NO.V (Crl. Appeal Na. 88-89/81. Common)      ’Sahib Singh,  Mukhtiar Singh,  Manto Bai, Palo Bai and Jita Singh  were killed  by five  men including Machhi Singh and Jagir  Singh appellants. Both these appellants pursued a course of  utter cruelty  and atrocity.  Not only  were  the crimes cold-blooded,  calculated and  gruesome in  features, these had been committed while spreading horror of a killing spree. They  put to  death a  young newly married couple and rendered a  young woman  a widow.  The helpless state of the victims and the circumstances of the case lead us to confirm the death sentence." Jagir Singh:      Insofar as  appellant Jagir  Singh is  concerned  death sentence has  been imposed  on him by the Sessions Court and confirmed by  the High  Court in relation to Crime No. 11A-B and V.  The High  Court has  observed thus in the context of the relevant crime: CRIME NO. 11A & B (Crl. Appeal No. 80-84/81. Common)      "We have  found that  two innocent helpless women named Ghamo Bai  and Rajo  Bai  were  killed  in  a  helpless  and defenceless state in their own house and similarly a veteran couple namely Bishan Singh and his wife Paro Bai were killed by Machhi  Singh  and  Jagir  Singh  appellants  in  similar circumstances. The  crime committed  carries features  which could be  utterly horrendous  especially when  we  know  the weapons and  their manner of use. The victims could offer no resistance to the accused appellants. The law clamours for a sterner sentence;  the crime  being heinous,  atrocious  and cruel." 436 CRIME NO. V (Crl. Appeal No. 88-89/81. Common)      ’Sahib Singh,  Mukhtiar Singh,  Manto Bai, Palo Bai and Jita Singh  were killed  by five  men including Machhi Singh and Jagir  Singh appellants. Both these appellants pursued a course of  utter cruelty  and atrocity.  Not only  were  the crimes cold-blooded  calculated and  gruesome  in  features, these had been committed while spreading horror of a killing spree. They  put to  death a  young newly married couple and rendered a  young woman  a widow.  The helpless state of the victims and the circumstances of the case lead us to confirm the death sentence." Kashmir Singh: S/o Arjan Singh      In so far as appellant Kashmir Singh s/o Arjan Singh is concerned death  sentence has  been imposed  on him  by  the Sessions Court  and confirmed  by the  High  Court  for  the following reasons:           "Similarly, Kashmir  Singh  appellant  caused  the      death of  a child  Balbir Singh  aged six  years  while      asleep, a  poor defenceless  life put off by a depraved      mind reflecting grave propensity to commit murder."      We are  of the  opinion that  insofar  as  these  three appellants are  concerned the  rarest  of  rare  cases  rule prescribed  in   Bachan  Singh’s  case  (Supra)  is  clearly attracted and sentence of death is called for. We are unable to persuade  ourselves that  a sentence  of imprisonment for life will  be adequate in the circumstances of the crime. We therefore fully  uphold the  view concurrently  taken by the Sessions Court  and the  High Court  that extreme penalty of death requires  to be imposed on appellants (1) Machhi Singh (2) Kashmir  Singh son  of Arjan  Singh (3)  Jagir Singh. We accordingly confirm  the death  sentence imposed on them and dismiss their appeals. In the result we pass the following order:                             I :      Appeals preferred  by appellant  Mohinder  Singh  being

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Crl. Appeals  Nos. Crl.  79/81 & 86 of 1981 are allowed. The order of  conviction and sentence passed by the lower courts in so  far as he is concerned are set aside. He shall be set at liberty forthwith unless he is required to be detained in connection with  some other  offence or  in connection  with some other orders authorizing his detention. 437                             II:      In regard to the rest of the appeals by the rest of the appellants the  orders of  conviction and sentence passed by the lower  courts are  confirmed and  all the  appeals shall stand dismissed.  The sentence of imprisonment under various counts and  sentence imposed  on the  concerned appellant in allied appeals will run concurrently.                             III:      The death  sentence imposed  on  the  appellants  named hereafter viz  (i) Machhi Singh (ii) Kashmir Singh s/o Arjan Singh;  (iii)   Jagir  Singh,  having  been  confirmed,  the sentence shall be executed in accordance with law.                             IV:      Death sentence has separately been imposed on Appellant Machhi Singh  in all  the matters.  By the  very  nature  of things the  sentence will be deemed to have been executed in all the cases if it is executed once.                              V:      Appellants in  Crl. A. No. 419/82 viz. (i) Phuman Singh (ii) Jagtar Singh; and (iii) Kashmir Singh s/o Wadhawa Singh who are  on bail  pursuant to the order passed by this Court on September 15, 1982 shall surrender to their bail bonds in order to  undergo the  sentence imposed  by the lower courts and confirmed  by this  Court. Their  bail bonds shall stand cancelled. Such  of the other appellants, if any, who are on bail shall  surrender  in  order  to  undergo  the  sentence imposed by  the lower  courts as confirmed by this Court and their bail bonds shall stand cancelled. S.R.                            Crl. Appeals 79/81 and 86/81                           allowed & other appeals dismissed. 438