“Reportable”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1164 OF 2005

Sunder Singh … Appellant

Versus

State of Uttaranchal … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant herein challenges the judgment of the High  

Court affirming the judgment passed by the Sessions Court.  

The Sessions Judge convicted the appellant/accused Sunder  

Singh for offences under Sections 302, 307 and 436, Indian  

Penal Code (IPC).  While he was awarded the death sentence  

along with a fine of Rs.5,000/- and in default to suffer  

further rigorous imprisonment for one year, he was given the  

punishment of seven years along with fine of Rs. 5,000/- and  

in default to suffer further rigorous imprisonment for one  

year separately on the other two counts.   

2. The incident in this case had taken place on 30.6.1989  

in village Mahargheti, Patwari Circle Dangoli in the newly  

formed District Bageshwar (which was part of District Almora  

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at the time of incident).  In this ghastly incident, Pratap  

Singh, his wife Nandi Devi, his elder son Balwant Singh  

(aged about 28 years), another son Prem Singh (aged about 19  

years),  daughter  Kamla  (aged  about  16  years)  lost  their  

lives while wife of Balwant Singh, namely, Vimla Devi (PW-1)  

sustained grievous burn injuries.  Five victims who lost  

their lives including Balwant Singh were roasted alive and  

died either on the spot or while being taken to the hospital  

or in the hospital.  Balwant Singh, however, was almost  

beheaded while he also suffered the burn injuries.  The  

prosecution alleged that this incident took place at about  

10 p.m. when all the victims were taking their dinner in the  

ground floor room of their house.  The appellant/accused  

came  there  with  jerry  can  containing  petrol  and  burning  

torch and threw the petrol in the room and after setting  

fire by torch, he shut the door of the room. Though Balwant  

Singh was in flames he managed to come out of the room by  

opening the door.  However, as soon as he came out of the  

room, the accused who was still waiting there gave him a  

sword blow on the neck because of which he fell down dead  

out  side the  house.  The other  five family  members who  

sustained  severe  burns  also  died  barring  Vimla  Devi  who  

alone survived.  Nandi Devi died on the way to the Primary  

Health Centre at Baijnath while Pratap Singh also died there  

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itself.  Kamla and Prem Singh died in the District hospital,  

Almora later on, where they were shifted from Baijnath.   

3. Informant Kheem Singh (PW-2) prepared a written report  

and handed over to the Circle Patwari, Hyat Singh (PW-13).  

In fact Hyat Singh (PW-13) came almost immediately after the  

incident and so did the other witnesses like Chanar Singh  

(PW-3) and Rewadhar (PW-4).  At the time when they reached  

the spot almost simultaneously, Pratap Singh was alive, who  

told these witnesses that accused Sunder Singh had burned  

them by throwing petrol from jerry can and by torching the  

house  thereafter.   Even  Vimla  Devi  (PW-1),  the  wife  of  

Balwant Singh told Hyat Singh (PW-13) about the incident and  

also about the attack on Balwant Singh by the accused.  Hyat  

Singh (PW-13) started the investigation.  He inspected the  

burnt house and the spot where Balwant Singh’s body was  

lying.   He  found  that  Balwant  Singh  was  dead  and  had  

suffered a serious injury on his neck.  The other injured  

barring Balwant Singh were sent first to the Primary Health  

Centre, Baijnath.  Nandi Devi, however, died even before  

reaching the Primary Health Centre, Baijnath, while Pratap  

Singh is said to have died after reaching the Health Centre.  

Dr. K.C. Joshi (PW-12) examined Vimla Devi (PW-1) and noted  

the injuries suffered by her, so also Kamla and Prem Singh  

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were examined by him, and he noted their injuries in the  

medical  certificates  (Exhibits  Ka-9,  Ka-10  and  Ka-11).  

Thereafter,  the  injured  were  sent  to  District  Hospital,  

Almora in view of the seriousness of their injuries.  When  

the three injured were at District Hospital, Almora, the  

dying declarations of Prem Singh and Vimla Devi (PW-1) were  

recorded on 1.7.1989 by Narender Singh Patel (PW-9), Sub-

Divisional Magistrate, Baramandal, District Almora.  Before  

this, Hyat Singh (PW-13) had completed his inspection of all  

the  spots  and  had  attached  burnt  radio,  damaged  plastic  

gallons, burnt breads and cut pieces of can from the scene  

of offence.  He also found a cover of the sword (described  

as ‘Khol’) and also a pistol which had two bullets in it.  

He also held the inquest on the dead body of Balwant Singh  

and thereafter on the body of Pratap Singh and Nandi Devi.  

These bodies were sent for post mortem.  In the District  

Hospital, Almora, Prem Singh died on 1.7.1989 itself while  

Kamla died later on after the treatment.  Vimla Devi (PW-1),  

however, miraculously survived.  The inquests and the post  

mortem on the dead bodies of Kamla and Prem Singh were also  

conducted later on by the doctors.  All the five dead bodies  

had suffered extensive burn injuries, almost to the extent  

of 70% or 80%.  Vimla Devi (PW-1), however, miraculously  

escaped and survived, though she had also suffered 70% of  

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the burn injuries.  After the preliminary investigation was  

completed by Hyat Singh (PW-13), the same was entrusted to  

C.B.C.I.D. and Inspector K.R. Tamta (PW-14), who completed  

the remaining formalities of the investigation.  The accused  

was absconding.  He was found only in July, 2002 after a  

lapse  of  12  years.   It  was  then  that  the  matter  was  

committed  to  Sessions  on  the  basis  of  the  chargesheet  

already filed.

4. The chargesheet was for the offences under Sections  

302, 307 and 436, IPC.  The Sessions Judge framed charges.  

Fourteen witnesses were examined in support of the charges  

including Vimla Devi (PW-1) who was the injured eye witness.  

Kheem  Singh  (PW-2),  who  was  the  author  of  the  First  

Information Report (FIR), was examined to prove the same.  

Chanar Singh (PW-3) and Rewadhar (PW-4) were the witnesses  

who reached the spot almost immediately after the incident.  

They were examined as the panch witnesses.  Dan Singh (PW-5)  

also acted as a panch on the inquest, so also Daya Krishna  

(PW-7)  and  Ramesh  Singh  Rotella  (PW-8)  were  examined  to  

prove the inquest panchnamas on the dead bodies.  Narender  

Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal,  

District Almora was examined to prove the dying declarations  

of Vimla Devi (PW-1) and Prem Singh, which was recorded by  

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him on 1.7.1989.  Dr. N.D. Punetha (PW-6), Dr. H.G.S. Manral  

(PW-10)  and  Dr.  Nanda  Vallabh  Sharma  (PW-11)  were  the  

doctors conducting the post mortem, while Dr. K.C. Joshi  

(PW-12) was the doctor who had examined Vimla Devi (PW-1)  

and Prem Singh and had issued medical certificates to them.  

Hyat Singh (PW-13), the investigating Patwari and Inspector  

K.R.  Tamta  (PW-14)  were  examined  as  the  investigating  

witnesses.

5. The accused abjured his guilt.  He raised the defence  

of false implication on account of the enmity due to land.  

However, learned Sessions Judge came to the conclusion on  

the basis of the evidence of Vimla Devi (PW-1) and the dying  

declaration of Prem Singh and the other substantive evidence  

that it was accused Sunder Singh who had torched the ground  

floor room on the fateful day resulting in the victims being  

roasted alive.  It was also held that the prosecution had  

proved that the accused had dealt a sword blow on Balwant  

Singh almost beheading him and on that count proceeded to  

convict the accused and awarded the sentences which have  

already been mentioned.

6. Since the death sentence was ordered there was a death  

reference made in the High Court. The accused also filed an  

appeal challenging his conviction. The High Court came to  

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the  conclusion  that  the  Sessions  Judge  was  right  in  

convicting the accused.  The High Court also endorsed the  

opinion of the Sessions Judge that this was a rarest of rare  

case and, therefore, affirmed the death sentence awarded to  

the accused by the Sessions Judge.  The judgment affirmed by  

the High Court has now fallen for our consideration.

7. Shri  Y.P.  Singh  who  was  appointed  as  Amicus  Curiae  

urged before us that it could not be said that it was the  

accused who was the perpetrator of this crime.  According to  

the learned Counsel, the prosecution was not able to prove  

the guilt.  He contended that the evidence of Vimla Devi  

(PW-1) could not be accepted as there were inherent pitfalls  

in her evidence.  Firstly, she was an interested witness and  

secondly, her ability to see at night at 10 O’clock was  

suspect. We have been taken through the whole evidence to  

show that there were contradictions and material omissions  

in her evidence.  The learned Counsel further argued that  

the so-called dying declaration by Prem Singh was also a  

suspect document and was not creditworthy.  He pointed out  

that the said dying declaration of Prem Singh did not have  

the endorsement of the doctor about Prem Singh being in fit  

condition to make a dying declaration.   

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8. Lastly, learned Counsel suggested that this could not  

be said to be a rarest of rare case and the High Court has  

erred in affirming the death sentence.

9. As  against  this,  the  learned  Counsel  appearing  on  

behalf of the State supported the judgment and contended  

that  the  evidence  of  Vimla  Devi  (PW-1)  was  extremely  

important  and  credible  and  she  was  herself  an  injured  

witness.  He pointed out that being a relative and having  

lost her near and dear ones she is not likely to screen the  

real offender.  She had all the opportunity to see and since  

the accused was the real uncle of her husband, there was no  

question of any mis-identification also.  He pointed out  

that the evidence is extremely natural and she had not tried  

to rope in other persons.  It was further pointed out that  

there was nothing to suspect the dying declaration of Prem  

Singh.  As regards the absence of the endorsement of the  

doctor,  the  learned  Counsel  suggested  that  it  cannot  be  

forgotten that the said dying declaration is recorded by an  

independent witness.  He also pointed out that the victim  

was  fully  conscious  and  had  survived  after  the  dying  

declaration for substantial time which would suggest that he  

was  completely  conscious  at  the  time  when  the  dying  

declaration was recorded.  It was further argued by the  

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learned Counsel that this was the most dastardly act on the  

part of the accused that he not only set the house to fire  

but  also  closed  the  door  thereby  he  displayed  his  foul  

intention  to  eliminate  the  whole  family  and  he  was  

successful in eliminating the whole family. Learned Counsel  

pointed out that two of the victims were extremely young  

being 16 years and 19 years old and had not even seen their  

lives.  The learned Counsel brought to our notice the fact  

that the accused remained absconding for 12 long years.  His  

being remaining absconding for 12 years was also a clear cut  

circumstance against him. According to the learned Counsel,  

therefore, this was a rarest of rare case.

10. It has to be borne in mind in this case that there is  

no scope of a mistaken identity for the simple reason that  

the accused was the real brother of Pratap Singh.  Again,  

because the house was set to fire there was ample light  

available for identifying the accused.   

11. The prosecution basically relied on the evidence of  

Smt. Vimla Devi (PW-1) whose evidence was examined by us  

very closely.  She is a natural witness and there can be no  

dispute about her presence on the spot.  She is also an  

injured witness as she has herself suffered 70% burns.  She  

was very fortunate to survive.  Learned counsel criticized  

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the evidence by saying that she had obviously deposed in an  

unnatural manner by claiming that the accused was carrying  

three Jerry cans, opened them one by one and poured petrol.  

It was also pointed out that initially in her statement  

which was recorded as dying declaration, she had suggested  

that the room was set to fire by a match stick.  In her  

cross  examination,  however,  she  refuted  that  claim.   A  

fantastic  theory  was  introduced  in  her  cross-examination  

that her husband died because he dashed against sharp stone.  

Considering the overall evidence which has been accepted by  

the Trial Court and the High Court, we are of the clear  

opinion that this witness is reliable and the Courts below  

committed no error in accepting the evidence of Vimla Devi  

(PW-1).   It  cannot  be  forgotten  that  the  witness  has  

identified the jerry cans, the sword etc. which were lying  

in her courtyard. There were undoubtedly some contradictions  

and omissions in her evidence and the dying declaration but  

in our opinion they were not substantial enough so as to  

affect the credibility of her evidence.  She undoubtedly  

suggested in her Examination-in-Chief that the accused was  

carrying  jerry  cans.   She  has  referred  ‘jerry  cans’  in  

plurals- “Uske hath me petrol va diesel k jerry can thhe”.  

She then identified the three jerry cans when the three  

jerry cans, which were attached, were produced in the Court.  

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She also identified the cover of the sword and also the  

pistol which was left behind and was found by Hyat Singh  

(PW-13).  She has then identified all the other material  

objects like radio etc.  In her Cross-Examination, she again  

asserted that the accused had three jerry cans, which she  

described as gallons.  She then described that the caps of  

these jerry cans were cut.  She could not, however, tell as  

to the capacity of the said jerry cans nor could she speak  

about their colour.  She accepted the suggestion that the  

accused first threw the petrol from one jerry can and then  

from the second and the other.  She then asserted that they  

were not set to fire with the match box on which she was  

contradicted with her previous statement, wherein she had  

suggested that the accused had set fire by the match stick.  

This was, by far, the only contradiction which was brought  

in her Cross-Examination.   

12. Very strangely, a suggestion was put to her that since  

the accused threw the petrol from three jerry cans one after  

the other, they could run out and catch the accused.  In her  

further Cross-Examination, however, she admitted that her  

statement was properly recorded by Narender Singh Patel (PW-

9), Sub-Divisional Magistrate, Baramandal, District Almora.  

She  also  admitted  that  she  had  stated  in  her  dying  

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declaration that there was one jerry can.  In our opinion,  

the  witness,  in  her  dying  declaration  dated  1.7.1989,  

mentioned about one jerry can as she had seen the accused  

throwing the petrol from one jerry can.  Very strangely,  

this contradiction was not got proved from Narender Singh  

Patel  (PW-9),  Sub-Divisional  Magistrate,  Baramandal,  

District  Almora  nor  was  it  put  to  him.   Unless  a  

contradiction is proved by putting it to the person who  

records the original statement, such contradiction is of no  

consequence.  The only Cross-Examination of Narender Singh  

Patel (PW-9), Sub-Divisional Magistrate was to the effect  

that there was no certification on the dying declarations to  

the effect that both the witnesses were in fit condition to  

give the statement.  When we see again the evidence of Vimla  

Devi (PW-1), even she was not specifically questioned about  

her previous statement nor was she given an opportunity to  

explain as to why she had made the statement in her evidence  

that there were three jerry cans as in her statement in  

dying declaration that there was one jerry can.  Unless the  

witness is specifically given an opportunity to explain such  

contradiction, it cannot be taken note of.  The very purpose  

of putting the contradiction to the witness is to give an  

opportunity to him/her to explain a contradictory statement,  

if any.  There can be no dispute that when a witness making  

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a dying declaration survives, the said dying declaration  

does not remain substantive evidence.  However, as held in  

Ramprasad v. State of Maharashtra [1999 (5) SCC 30] when  

such dying declaration has been recorded by a Magistrate  

then it can be used as a corroboration to the oral evidence  

of such witness.  This Court in the aforementioned decision  

of  Ram Prasad (cited supra)  specifically held that where  

such statement is recorded by a Police Officer, its user is  

barred  under  Section  162  Cr.P.C.   However,  where  it  is  

recorded  by  a  Magistrate  under  Section  164,  Cr.P.C.  it  

becomes usable to corroborate the witness as proved under  

Section 157 of the Evidence Act.  That is precisely the case  

here.   We  have  very  critically  examined  the  dying  

declaration and we are of the clear opinion that the dying  

declaration was voluntary, truthful and uninfluenced by any  

other factor.  We have considered the dying declaration vis-

à-vis the substantive evidence given by this witness.  The  

only criticism against this dying declaration was that the  

Magistrate had not got it certified by the doctor to the  

effect that the witness was in a fit state of mind to make  

the dying declaration.  That really appears to be the case.  

However, it can not be forgotten that in his evidence, the  

Magistrate  Narender  Singh  Patel  (PW-9)  very  specifically  

asserted that he had obtained the opinion of the doctor.  

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Very surprisingly, there was no cross-examination at all on  

this very vital aspect.  Therefore, the assertion that he  

had asked the doctor and was convinced that the injured was  

in  a fit  position to  make a  dying declaration  has gone  

unchallenged.  This witness has very specifically stated  

that he completed all the formalities and had taken all the  

cautions.   

13. When  we  see  the  Exhibits  Ka-30  and  31,  which  are  

seizure Panchnamas duly proved by Rewadhar (PW-4), it is  

seen that there were three jerry cans found which were cut  

from the above, and as such, were open.  Out of these three  

jerry cans, one was white and the others were black.  It is  

specifically stated in the panchnama that all the jerry cans  

were smelling of petrol.  In Exhibit Ka-31, the cut parts of  

the jerry cans were shown, which were found lying on some  

distance  on  the  Western  side  of  the  spot  of  incident.  

Therefore, there can be no dispute that actually the accused  

had carried the three jerry cans full of petrol and the  

witness had seen the accused pouring petrol from one of  

them.  It can also be that the accused might have utilized  

the two jerry cans in sprinkling the petrol on the roof from  

outside and then opening the door, threw the petrol from the  

third jerry can remaining with him.  The witness had after  

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all seen the three jerry cans being presented in the Court  

and  had,  therefore,  tried  to  improve  upon  the  story.  

However, if the three burnt jerry cans were actually found  

by Hyat Singh (PW-13) immediately on the spot in a semi-

burnt condition, the so-called contradiction loses all its  

rigor.  The witness was very candid when she admitted before  

the Court that she had not stated that her husband was cut  

by the accused and that she had not, therefore, referred to  

the pistol in her statement.  She was also candid in saying  

that she had not seen the accused assaulting her husband.  

She then asserted that the accused assaulted her husband on  

his neck only once.  She also asserted that besides the  

accused, she did not see anyone else on the spot.  All this  

suggests her truthfulness.  She did not implicate anybody  

else than the accused.  Therefore, the fact that the accused  

was alone and further that Balwant Singh (deceased), after  

opening the door, ran out and was thereafter immediately  

found  cut, leads  to the  only inference  that it  was the  

accused alone who assaulted Balwant Singh.  It has to be  

kept in mind that at that time, the whole house was burning.  

The witness has explained that the other people came and  

extinguished the fire; otherwise the whole house would have  

burnt.  There was, therefore, enough light for the witness  

to see the accused.  We, therefore, do not find anything to  

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disbelieve  this  witness  on  account  of  the  so-called  

contradictions.   In  fact,  the  presence  of  this  lady  

alongwith  the  other  victims  on  the  spot,  goes  without  

challenge.  Had she not been present there, she would not  

have suffered 70% burns.  She thus had the best opportunity  

to  watch everything.   It  was suggested  that she  was an  

interested  witness  as  the  accused  had  enmity  with  her  

father-in-law Pratap Singh.  It must be remembered that she  

herself had lost all her kith and kin including her husband  

and, therefore, she would not be interested in screening the  

real accused. We cannot view her evidence as the evidence of  

an interested person.  In fact, Dr. K.C. Joshi (PW-12), in  

his first medical statement (Exhibit Ka-9), has specifically  

mentioned that she was conscious when she was examined at  

the  Primary  Health  Centre,  Baijnath.   The  certificate  

describes  her  condition  “patient  fully  conscious,  needs  

urgent (probably treatment), referred to Hospital, Almora  

for management”.  Therefore, even at Primary Health Centre,  

Baijnath, where she was examined at 9.30 A.M. on the next  

day, the patient was fully conscious, thereby it cannot be  

said that was not able to see and comprehend.   

14. In fact, the way this lady was sitting in the room  

which was 10 cubic long and 5 cubic wide she would have had  

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the best opportunity to see the accused.  The High Court has  

also taken stock of her inability to tell the colour of the  

container, length etc. of the blade of the sword and the  

omission in her statement as regards the pistol which was  

found lying in the courtyard after the incident.  However,  

the Sessions Judge as well as the High court have chosen to  

accept the evidence of the witness who has survived 70 %  

burns.  The High Court also endorsed view of the Sessions  

Judge that she was wholly reliable witness and there was no  

requirement of corroboration to her evidence from any other  

witness. We are, therefore, of the opinion that the dying  

declaration is reliable and properly recorded and truthful  

and corroborates the oral evidence of Vimla Devi (PW-1).  

That  is  a  very  strong  circumstance  in  favour  of  the  

prosecution.

15. This takes us to the other material circumstance and  

that is the dying declaration of Prem Singh.  This dying  

declaration was recorded on 01.07.1989 i.e. on the next day  

at 3.45 p.m. in the District Hospital, Almora by Narender  

Singh Patel (PW-9).  The said dying declaration is Exhibit  

Ka-6.  In fact this was a witness who had recorded the dying  

declaration  of  Vimla  Devi  (PW-1)  also.  In  his  evidence,  

Narender Singh Patel (PW-9) asserted that before recording  

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the  dying  declaration  of  Prem  Singh,  he  had  sought  the  

opinion of the doctor about the witness being in fit state  

of mind to make a dying declaration.  He also asserted that  

the witness was not in any kind of mental pressure nor was  

he depressed and was fully conscious and in possession of  

the mental faculties.  The witness also asserted that before  

recording  the  dying  declaration  he  had  taken  all  the  

precautions and the dying declaration was written in the  

language of the witness himself.  There is practically no  

Cross Examination of this witness.  The only thing that was  

brought  out  was  that  he  did  not  obtain  the  endorsement  

certification by the Doctor that they were in a position to  

make  a  statement.   We  have  seen  the  dying  declaration  

itself.   It  is  true  that  the  dying  declaration  is  not  

endorsed by the doctor but for the same comments for dying  

declaration of Vimla Devi (PW-1) we would accept the dying  

declaration of Prem Singh which would become substantive  

evidence.

16. In his dying declaration, Prem Singh had specifically  

alleged that while he along with other members of his family  

like  father,  mother,  sister-in-law,  elder  brother  and  

younger sister were having food, at that time accused Sunder  

Singh who was his uncle was coming towards his house with a  

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torch and he was carrying a jerry can (named as ‘gallons’ by  

witness)  and  he  poured  the  petrol  and  closed  the  door.  

After throwing the torch he closed the door resulting in the  

room catching fire.  He then said that his elder brother  

Balwant  Singh  pushed  the  door  though  his  body  had  also  

caught fire.  He then asserted that Sunder Singh cut him  

with some sharp weapon.  He also explains that they could  

not go out because the whole room had caught fire.  The  

witness further stated in his dying declaration that the  

other villagers came.  However, he could not recognize them  

as he had suffered burn injuries.  He was specific that  

Sunder Singh alone had come to set the house on fire.  This  

declaration was recorded on 1.7.1989 at 3.45 p.m. as is  

recorded  in  the  dying  declaration  itself.   The  dying  

declaration bears the thumb impression on both the pages.  

When this dying declaration is considered in the light of  

the  evidence  of  Narender  Singh  Patel  (PW-9),  it  is  

established  that  the  dying  declaration  was  not  only  

voluntary but it was the correct depiction of the facts of  

which took place.  There is no reason for us to reject the  

dying declaration again solely for the reason that there was  

no  endorsement  of  the  doctor  on  the  dying  declaration  

regarding  the  fit  condition  of  the  injured  to  make  the  

statement.   We  have  already,  while  discussing  the  dying  

1

declaration of Vimla Devi (PW-1), held that the Magistrate,  

Narender Singh Patel (PW-9) had specifically asserted that  

he had got himself satisfied by asking the doctor that the  

injured witness were in a fit mental and physical condition  

to make a statement.  

17. Hyat Singh did not specifically name Vimla Devi (PW-1)  

having made oral dying declaration to him but asserted that  

the  injured  victims had  told  him  about  Sunder  Singh’s  

involvement.   We  would  use  this  circumstance  only  as  

corroboration to Vimla Devi’s evidence.  It is true that  

Vimla Devi (PW-1) had specifically not stated that she made  

a statement to Hyat Singh.  However, we are of the clear  

opinion  that  the  evidence  of  Vimla  Devi  (PW-1)  as  

corroborated by dying declaration (Exhibit Ka-5) was totally  

acceptable and was rightly relied upon by the Trial and the  

appellate Court.

18. There can be no dispute that the dying declaration can  

be  made  a  basis  of  conviction.   There  again  can  be  no  

dispute  that  for  basing  the  conviction  on  the  dying  

declaration, the dying declaration must pass all the tests  

of voluntariness, the fit condition of mind of the maker of  

the dying declaration and the witness not being influenced  

by  any  other  factors  and  the  truthfulness  of  the  

2

declaration.   The  law  is  settled  by  this  Court  in  the  

decision of  Laxman Vs. State of Maharashtra  [2002 (6) SCC  

710].  There, of course, the Court has discussed implication  

of the doctor’s statement.  The Court has further considered  

the subject in Shanmugham @ Kulandaivelu v. State of Tamil  

Nadu  [(2002) 10 SCC 4] as also in  P.V. Radhakrishnan v.  

State of Karnataka  [(2003) 6 SCC 443].   We hasten to add  

that we do not want to understate the importance of the  

evidence of doctors.  However, there could be cases where  

though there is no certification by the doctor, still the  

dying declaration can be accepted and in our opinion present  

is such a case.  In Laxman’s case (cited supra), the court  

had observed in paragraph 3:

“normally,  therefore,  the  Court  in  order  to  satisfy whether the deceased was in a fit mental  condition to make the dying declaration look up  to  the  medical  opinion.   But  where  the  eye  witnesses state that the deceased was in a fit  and conscious state to make the declaration, the  medical opinion will not prevail, nor can it be  said that since there is no certification of the  doctor  as  to  the  fitness  of  the  mind  of  the  declarant,  the  dying  declaration  is  not  acceptable.”

19. This decision was by the Constitution Bench of this  

Court and has taken stock of all the earlier decisions.  It  

has been through out followed by this Court in the later  

cases.  After examining all the circumstances, particularly,  

2

the evidence of the Magistrate, we are of the clear opinion  

that the dying declarations of Vimla Devi and Prem Singh do  

pass  the  test  of  credibility.   Of  course,  the  dying  

declaration of Vimla Devi cannot be substantive evidence and  

it  can  only  be  corroborative  evidence  of  oral  testimony  

since she survived.  However, the evidence of Prem Singh  

does become substantive evidence and in our opinion, wholly  

reliable.  We, therefore, hold that the Trial Court and the  

appellate Court have committed no error in relying on that  

dying declaration.

20. There  is  immediate  disclosure  of  the  name  of  the  

accused in the FIR.  This report was in the same night at  

3.30 a.m. where it is specifically stated that at 10 O’clock  

Sunder  Singh had  set the  house on  fire when  the family  

members of Prem Singh were having food.  It is also asserted  

therein that even Balwant Singh’s neck was cut by him.  The  

FIR is not substantive evidence.  However, it corroborates  

the assertion of Kheem Singh that Hyat Singh came on the  

spot and had enquired into the matter.  Therefore, the name  

of the accused was reported almost immediately without any  

waste of time.   

21. Chanar  Singh  (PW-2)  asserted  that  he  was  told  by  

injured Pratap Singh that Sunder Singh had set the house on  

2

fire and he had injured.  This assertion on the part of  

Chanar  Singh  has  not  been  challenged  in  the  cross-

examination at all.  In fact Chanar Singh is the brother of  

the  accused.   It  is  true  that  in  cross-examination  he  

admitted that he had not seen Sunder Singh setting the house  

on fire nor did he see him assaulting Balwant Singh with a  

sword.  Even this witness was told by Vimla Devi that it was  

Sunder Singh who had set the house on fire.  His evidence,  

therefore, corroborates the evidence of Vimla Devi.  It is  

relevant as a previous statement made to other witness and  

usable as such.  Similarly, Rewadhar (PW-3) also asserted  

that Pratap Singh had told him that when they were having  

their food at that time Sunder Singh had poured the petrol  

and had put the house on fire.  Even this assertion in the  

examination-in-chief  was  not  challenged  in  the  cross-

examination.  The only challenge in the cross examination  

was that he had himself not seen the incident.  The evidence  

of  this  witness  also  thus  went  unchallenged.   Very  

unfortunately,  though  the  Panchnamas  on  which  these  two  

witnesses have put their signatures were put to the accused.  

However, this fact of oral dying declaration by Pratap Singh  

to both of them was not put to the accused.  It is really a  

matter of concern that even the trial Judge did not frame  

the question in Section 313 Cr.P.C. examination specifically  

2

putting the names of these two witnesses.  Thereby a very  

important  circumstance  is  lost.   We  have  not  allowed  

ourselves  to  be  influenced  by  these  two  oral  dying  

declarations.  However, we are mentioning these facts only  

with a view to caution the Trial Courts to be extremely  

careful about the questions to be put to the accused persons  

in examination under Section 313 Cr.P.C.  Record must show  

that meticulous care is taken to put all the incriminating  

circumstances to the accused.  It is found that the Trial  

Courts sometimes are extremely casual about this aspect and  

fail  to  put  all  the  incriminating  circumstances  to  the  

accused.  We would expect the Trial Courts to be extremely  

careful in this behalf.  It is only with this idea that we  

are mentioning these facts.

22. However, the fact remains that even ignoring these oral  

dying declaration allegedly made by Pratap Singh to the two  

witnesses, namely, Chanar Singh (PW- 3) and Rewadhar (PW-4)  

the prosecution still is successful in proving its case on  

the basis of the oral evidence of Vimla Devi and the dying  

declaration by Prem Singh.  

23. The evidence of four doctors was led. It is obvious  

from  the  evidence  that  only  two  victims  when  they  were  

alive,  namely,  Vimla  Devi  (PW-1)  and  Prem  Singh  were  

2

examined by Dr. K.C. Joshi (PW-12).  The other doctors were  

namely Dr. N.D. Punetha (PW-6) who conducted the post-mortem  

on Balwant Singh’s dead body.  He has specifically proved  

the injury No.1 on the neck of Balwant Singh which was bone  

deep.  He also described that all the body was burnt.  He  

also confirmed the opinion that the injury No.1 on the neck  

could have been possible by a sharp weapon like a sword.  He  

also conducted the post-mortem of Smt. Nandi Devi who had  

died almost immediately after she was burnt.  He opined that  

she had died of the burn injuries.  Both these post-mortem  

reports  have  been  proved  as  Exhibits  Ka-2  and  Ka-3  

respectively.  He also conducted the post-mortem of Pratap  

Singh on 02.07.1989 and opined that the deceased had died on  

account of the shock of the burn injuries.  He proved the  

post-mortem report at Exhibit Ka-5.  Dr.H.G.S. Manral was  

examined as PW-10.  He conducted the post-mortem of body of  

Prem Singh.  He opined that Prem Singh had suffered 90% of  

second and third degree burns.  The whole body was blackened  

and the black soots were found in the respiratory track up  

to his lungs.  He also opined that Prem Singh had died on  

account of the burn injuries and shock.  Dr. Nanda Ballabh  

Sharma was examined as PW-11. He conducted the post-mortem  

on  13.10.1989  on  the  body  of  Kamla.   Thus,  Kamla  had  

survived  for  almost  three  and  a  half  months.   However,  

2

ultimately she succumbed on 12.10.1989.  According to this  

witness,  the  deceased  had  died  after  substantially  long  

period after she was burnt on account of the shock, paucity  

of blood and on account of extensive weakness on account of  

burns.  Thus, it is clear that all the deceased persons had  

died on account of the burn injuries.  Dr. K.C. Joshi who  

was examined as PW-12, had medially examined Vimla Devi and  

Prem Singh on 1.7.1989.  He had described as many as five  

burn  injuries  on  the  body  of  Vimla  Devi.  He  had  also  

examined Kamla Devi and noted her burn injuries as also Prem  

Singh for his burn injuries.  All the three witnesses were  

alive when he examined them.  He proved the injury reports  

at Ka-9, Ka-10 and Ka-11, respectively.  Nothing has been  

brought in the cross-examination of these doctors excepting  

the suggestion to practically all of them that if there was  

an accidental fall of a can containing oil or petrol in the  

hearth,  there  could  be  a  possibility  of  the  witnesses  

receiving burn injuries. We  have  already  pointed  out  

that such possibility was merely an imagination and there is  

no material whatsoever to see any such possibility.  This is  

all the more true considering that Balwant Singh was given a  

blow by a sword resulting in his instantaneous death.  The  

defence thus could not get any advantage from the medical  

evidence.   

2

24. This takes us to the quality of investigation.  We must  

say that the investigation in this case was not up to the  

mark.   In  the  distant  hilly  areas  in  the  State  of  

Uttarakhand,  the  investigation  is  conducted  by  village  

Police through a Patwari who is the lowest officer in the  

revenue department.  Much more could have been done in this  

case.  For example, the investigation officer could have  

recorded the dying declaration of Pratap Singh, Nandi Devi,  

Kamla, Vimla Devi and Prem Singh.  They were alive when the  

investigating officer allegedly reached the spot as per his  

own  evidence.   That  was  not  done.   We  also  fail  to  

understand as to why K.R. Tamta (PW-14), the investigating  

officer did not even bother to get the dying declaration of  

Kamla recorded.  Even Hyat Singh (PW-13) could have got the  

said dying declaration recorded.  Even that was not done.  

We again fail to understand as to why the FSL report was not  

obtained and filed.  The trial was started only after the  

arrest of the accused after 12 years.  All this suggests  

that the investigation was conducted in a very casual and  

careless manner.  Same is the story of prosecution.  We have  

already commented on proper questions not being put to the  

accused.  It is obvious that the prosecuting agency did not  

even bother to look into the questions before they were  

asked to the accused in his Section 313 Cr.P.C. examination.  

2

Merely because this heinous offence took place in the remote  

corner of District Bageshwar which - at the time when the  

offence took place was Almora   District - it did not mean  

that  the  investigating  agency  could  do  some  slipshod  

investigation  and  thereafter  the  prosecution  could  be  

allowed to be equally casual as it appears to have been in  

conducting the prosecution.  This also speaks about the duty  

of the Trial Court Judge who cannot be a mere spectator to  

what goes on in the name of the trial.  The Trial Judge has  

to control the trial by active application of mind.  A time  

has come when the village police system prevalent in the  

State of Uttaranchal in respect of distant areas would have  

to be changed and the distant villagers would have to be  

given the protection and services of the regular police.  It  

is really strange that the four Districts which are in the  

plains have had advantage of the police system while in the  

remaining Districts, the distant part of those Districts  

should be deprived of a police system.  Such deprivation  

undoubtedly  results  in  affecting  the  law  and  order  

situation, the detection of crimes and the protection of the  

poor villagers.  In fact effective policing is the need of  

the whole society, urban as also rural.  However, all these  

factors have not prejudiced the accused.  Even with these  

factors,  the  prosecution  has  fully  proved  the  heinous  

2

offence committed by him.  This Court has time and again  

held that incompetent investigation should not result in the  

accused getting any unfair advantage.  We reiterate the same  

principle.

25. Considering overall situation the evidence led by the  

prosecution through Vimla Devi which has been corroborated  

by  her  dying  declaration  as  also  the  dying  declaration  

(Exhibit Ka-6) of Prem Singh and the other circumstances  

proved on record through the evidence of Panchas and the  

Panchnamas.   It must be said that it was the accused and  

accused  alone  whose  guilt  has  been  proved  beyond  all  

reasonable doubts.  We, therefore, endorse the judgments of  

the  Trial  Court  and  the  High  Court  and  confirm  their  

findings on conviction.   

26. This takes us to the sentencing part.  Both the Trial  

Court and the High Court have confirmed the death sentence.  

It was urged by the learned Amicus Curiae that this could  

not be the case which can be described as the rarest of rare  

case.  It was urged that long standing enmity has resulted  

in the accused committing this offence.  It was also urged  

that merely because the accused set the house on fire, it  

cannot be said that it was his intention to commit murder of  

all  inmates as  the accused  might not  have been  able to  

2

foresee the horrible results that were likely to follow from  

his act of setting the house on fire and, therefore, at the  

most it could be described as indiscretion on the part of  

the accused.  The learned Amicus Curiae further urged that  

this incident had taken place in the year 1989 and to send  

the accused to gallows after 21 years of the incident would  

be  inhuman.  Further it  was pointed  out that  the first  

judgment of the Trial Court came in the year 2004 and for  

six years thereafter, the accused is under the shadow of  

death and, therefore, it would not be proper to confirm his  

death sentence.

27. As  against  this,  the  learned  counsel  appearing  on  

behalf of the State pointed out that this act of burning the  

house  and as  a result  of roasting  of six  persons alive  

appears to have been committed by the accused with cool mind  

and in a cold blooded manner.  The learned counsel was at  

pains to point out that there was no immediate provocation  

by any of the deceased persons which could drive the accused  

to take such a horrible step.  Learned counsel pointed out  

that secondly, the accused came with full preparation to  

eliminate as many persons as possible as he had come with  

the  sword  and  also  a  pistol.   The  counsel  invited  our  

attention to the fact that the pistol was found lying in the  

3

courtyard which had two bullets. He further pointed out that  

as many as three jerry cans were also found in the same  

condition and it was obvious that the accused had used the  

petrol to bathe the house with petrol.  Otherwise, the room  

which was 10 cubic long and 5 cubic wide could not be burnt  

so extensively.  The learned counsel further pointed out  

that thirdly, after pouring the petrol and setting the house  

on fire by a torch, the accused closed the door which fact  

was  proved  by  the  evidence  of  Vimla  Devi  which  was  

corroborated by her dying declaration and also the dying  

declaration of Prem Singh.  According to the learned counsel  

when the whole room was aflame, to close the door was a  

definite pointer towards the evil intention of the accused  

who must have seen the six family members burning.  As if  

all this was not sufficient, according to the leaned counsel  

forthly, as Balwant Singh was able to open the door and run  

out,  though he  himself was  in flames  at that  time, the  

accused almost beheaded him.   

28. Our attention was invited to the injury No.1 proved in  

the post-mortem report of Balwant Singh (Ka-2).  The learned  

counsel then urged that as a result of his assault Balwant  

Singh died on the spot while the remaining five members of  

the same family were extensively burnt though Vimla Devi  

3

miraculously  escaped  death  though  she  had  suffered  70  %  

burns.  The learned counsel further invited our attention to  

the fact that all those who died had suffered extensive  

burns which suggests the quantity of petrol used by the  

accused.  According to the counsel, therefore, the quantity  

of petrol used from three jerry cans was itself another  

definite pointer to the evil intention of the accused.  As  

regards the lapse of 21 years, the learned Counsel pointed  

out that showing scant respect to law the accused absconded  

and remained absconding for 12 years.  Unfortunately, it has  

not come in the evidence of Hyat Singh or K.R. Tamta as to  

how or in what manner the accused was apprehended, nor has  

it been put to the accused in his examination that he was  

absconding  for  12  years.   However,  the  learned  counsel  

further  submitted  that  the  accused  was  undoubtedly  

apprehended only when he was found to have been arrested for  

offences under Sections 323, 504 and 506 IPC registered in  

police  station  Karnprayag.   He  was  in  Pursadhi  jail  of  

Chamoli District.  Learned counsel, therefore, urged that it  

was because the accused himself remained absconding for good  

long almost 12 years, that the time of 21 years has elapsed.  

Learned counsel then pointed out that the accused cannot  

take advantage of his own wrong of remaining absconding for  

12 years.  Lastly, learned Counsel urged that because of  

3

this cruel and inhuman act as many as six persons of the  

same family were burnt and five of them died resulting in  

the  family  of  Pratap  Singh  completely  being  wiped  out  

excepting  for  his  daughter-in-law  Vimla  Devi  who  has  to  

spend rest of her life with extensive burn injuries.  The  

learned  government  pleader,  therefore,  urged  that  

considering  the  balance-sheet  of  circumstances  for  and  

against  the  accused,  the  Court  should  confirm  the  death  

sentence.   

29. On these rival contentions, we would have to take stock  

of few rulings of this Court.

30. The law is now well settled in the decision in Bachan  

Singh Vs. State of Punjab [AIR 1980 SC 898], where it was  

held that the death penalty can be inflicted only in the  

gravest of the grave cases.  It was also held that such  

death penalty can be imposed only when the life imprisonment  

appears to be inadequate punishment.  Again it was cautioned  

that  while  imposing  the  death  sentence,  there  must  be  

balance between circumstances regarding the accused and the  

mitigating circumstances and that there has to be overall  

consideration of the circumstances regarding the accused as  

also the offence.  Some aggravating circumstances were also  

culled out, they being:-

3

(a) where  the  murder  has  been  committed  after  previous  

planning and involves extreme brutality; or

(b) where the murder involves exceptional depravity.

The mitigating circumstances which were mentioned in  

that judgment were:-

(a) That the offence was committed under the influence  

of extreme mental or emotional disturbance;

(b) The age of the accused.  If the accused is young  

or old, he shall not be sentenced to death;

(c) The probability that the accused would not commit  

criminal acts of violence as would constitute a  

continuing threat to society;

(d) The probability that the accused can be reformed  

and rehabilitated.  The State shall by evidence  

prove  that  the  accused  does  not  satisfy  the  

conditions (c) and (d) above;

(e) That in the facts and circumstances of the case,  

the accused believed that he was morally justified  

in committing the offence;

(f) That  the  accused  acted  under  the  duress  or  

domination of another person; and  

(g) That the condition of the accused showed that he  

was mentally defective and that the said defect  

impaired  his  capacity  to  appreciate  the  

criminality of his conduct.

3

The law was further settled in the decision in Machhi  

Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where  

this Court insisted upon the mitigating circumstances being  

balanced  against  the  aggravating  circumstances.   The  

aggravating circumstances were described as under:-

(a) When the murder is in extremely brutal manner so as to  

arouse intense and extreme indignation of the community.

(b) When  the  murder  of  a  large  number  of  persons  of  a  

particular caste, community, or locality is committed.

(c) When the murder of an innocent child, a helpless woman  

is committed.

The  matter  was  further  considered  in  Devender  Pal  

Singh  Vs.  State  of  NCT  of  Delhi  [AIR  2002  SC  1661],  

wherein, after examining both the aforementioned cases, it  

was held that when a murder is committed in an extremely  

brutal  manner,  or  for  a  motive  which  suggests  total  

depravity  and  meanness  or  where  the  murder  is  by  hired  

assassin for money or reward, or a cold blooded murder for  

gains,  the  death  sentence  is  justified.   Similar  such  

observation  was  made  even  in  the  decision  in  Atbir  Vs.  

Govt. of NCT of Delhi [JT 2010 (8) SC 372].  Relying on all  

these cases, this Court, in Criminal Appeal Nos. 127-130 of  

2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided  

on 30.8.2010, confirmed the death sentence.  That was a  

3

case where the accused persons, while demonstrating against  

the  arrest  of  their  leader,  started  damaging  public  

transport  vehicles.   Some  girl  students  of  a  University  

were  travelling  in  a  bus.   The  three  accused  persons  

attacked the bus and sprinkled petrol in the bus full of  

girl and boy students and set it on fire with the students  

still inside the bus.  As a result, the inmates started  

escaping; however, three of the girls could not escape and  

were roasted alive.  The unprovoked attack on the bus and  

the burning of the bus by sprinkling petrol on the bus, and  

the death of three students as a result of such burning was  

viewed by this Court as a barbaric and inhuman act of the  

highest  degree.   The  offence  was  viewed  as  brutal,  

diabolical,  grotesque  and  cruel,  shocking  the  collective  

conscience of society.  It was on that account that the  

death sentence was confirmed.  Several comments have also  

been  made  by  this  Court  on  the  inaction  shown  by  the  

general public and the police who remained passive and did  

not try to help the unfortunate victims.

31. In  Ravji  Alias  Ram  Chandra  Vs.  State  of  Rajasthan  

[1996 (2) SCC 175], relying on the decision in  Dhananjoy  

Chatterjee Vs. State of West Bengal [1994 (2) SCC 220],  

this Court confirmed the death sentence, where the murder  

3

by  the  accused  of  his  wife  in  the  advanced  stage  of  

pregnancy and of his three minor children was viewed as  

rarest  of  the  rare  cases.  The  Court  observed  that  the  

accused has not even spared his mother, who very rightly  

tried to prevent him, and the accused assaulted her with  

the  same  axe  with  which  he  killed  his  wife  and  minor  

children.   The  accused  was  described  as  blood-thirsty  

demon.  In  Dhananjoy Chatterjee Vs. State of West Bengal  

(cited supra), the murder was of a helpless girl who was  

raped and then murdered.  That was viewed as the rarest of  

the rare cases.  In  State of U.P. Vs. Dharmendra Singh &  

Anr. [1999 (8) SCC 325], it was held that the High Court  

was not right in avoiding the death sentence on the ground  

that the convict was languishing in death cell for more  

than  3  years.   In  that  case,  the  accused  had  committed  

murder of 5 persons including an old man of 75 years, a  

woman aged 32 years, two boys aged 12 years and a girl aged  

15 years when they were asleep only to wreak vengeance on  

the part of the accused.  The High Court considered the act  

on the part of the accused in denuding the lower part of  

the body of the girl.  This Court observed that the High  

Court  had  misdirected  itself  in  refusing  to  confirm  the  

death  sentence  on  account  of  the  so-called  3  years  of  

languishing in death cell.  For this proposition, the Court  

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relied on the decision in  Triveniben Vs. State of Gujarat  

[1988 (4) SCC 574], where it was held that the delay in  

executing the sentence was of no consequence.   

32. In  Atbir  Vs.  Govt.  of  NCT  of  Delhi  (cited  supra),  

which was a case dependant upon a dying declaration, the  

allegation was that the accused had stabbed all the three  

persons of a family so that he and his brother could enjoy  

the entire property and money.  The repeated stabbing of  

the deceased was viewed as the act for which the accused  

could be legitimately awarded death sentence.  The incident  

therein had occurred on 22.1.1996 while the Sessions Judge  

had  awarded  the  death  sentence  on  27.9.2004.   The  High  

Court had confirmed the death sentence on 13.1.2006 while  

this  Court  affirmed  this  sentence  by  its  judgment  dated  

9.8.2010.   This  Court,  after  taking  the  stock  of  the  

aggravating circumstances and mitigating circumstances, as  

pointed  out  in  Bachan  Singh  Vs.  State  of  Punjab  (cited  

supra) and Machhi Singh & Ors. Vs. State of Punjab (cited  

supra),  came  to  the  conclusion  that  though  Atbir  was  a  

young person of 25 years of age and had already spent 10  

years in jail, that was not a mitigating circumstance in  

his favour.  The three murders were held to be extremely  

brutal and diabolical, committed with deliberate design in  

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order  to  inherit  the  entire  property  of  Jaswant  Singh  

without waiting for his death.  In Sushil Murmu Vs. State  

of Jharkhand [AIR 2004 SC 394], which was a case of human  

sacrifice  of  a  9  years  old  child,  this  Court  found  the  

accused  guilty  on  the  basis  of  circumstantial  evidence.  

While culling out the aggravating circumstances, this Court  

named five circumstances on the basis of the earlier case  

law  in  Machhi  Singh  &  Ors.  Vs.  State  of  Punjab  (cited  

supra), Bachan Singh Vs. State of Punjab (cited supra) and  

Ediga Anamma Vs. State of A.P. [AIR 1974 SC 799].  Two of  

the said circumstances are as follows:-

1. 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.

2. 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.

In this case, the Court recorded that the murder was a  

dastardly  murder  by  sacrificing  a  hapless  and  helpless  

child  of  another  for  personal  gain  and  to  promote  his  

fortunes by pretending to appease the deity or was a brutal  

act  which  is  amplified  by  the  grotesque  and  revolting  

manner  in  which  it  was  committed.   This  case  was  even  

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relied upon by the High Court while confirming the death  

sentence.   

33. In another decision in  Gurdev Singh & Anr. Vs. State  

of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR  

2003 SC 4187], this Court specifically held in Para 19 that  

there could be no fixed or rigid formula or standard for  

invoking extreme penalty of death sentence.  This was a  

case  where  this  Court  took  notice  of  the  decision  in  

Rajendra Prasad Vs. State of Uttar Pradesh [1979 (3) SCC  

646], where this Court had held that the focus had shifted  

from crime to criminal and the special reasons necessary  

for imposing death penalty must relate not to the crime as  

such but to the criminal.  The Court, however, noted that  

this  was  overruled  in  Bachan  Singh  Vs.  State  of  Punjab  

(cited supra) later on.  The Court also referred to various  

cases like (i)  A. Devendran Vs. State of Tamil Nadu [1997  

(11) SCC 720], which was a case of triple murder, where the  

Court had refused to pass the death sentence, (ii)  Kumudi  

Lal Vs. State of U.P. [1999 (4) SCC 108], which was a case  

of rape and murder of a young girl aged 14 years and where  

this Court had refused to confirm the death sentence on the  

ground  that  the  death  of  the  girl  must  not  had  been  

intended by the accused, and (iii)  Om Prakash Vs. State of  

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Haryana [1999 (3) SCC 19], which was a case where a BSF  

Jawan had murdered as many as 7 persons.  This was also a  

case where the Court refused to confirm the death sentence  

on  the  ground  that  the  bitterness  in  the  mind  of  the  

accused  had  increased  to  a  boiling  point  and  the  agony  

suffered by the accused and his family members at the hands  

of the other party, and for not getting protection from the  

police officers concerned and the total inaction on their  

part  inspite  of  repeated  written  prayers,  had  goaded  or  

compelled the accused to take law in his own hands.  Two  

other cases where the death sentence was not confirmed were  

also referred to in Gurdev Singh & Anr. Vs. State of Punjab  

with Piara Singh & Anr. Vs. State of Punjab (cited supra).  

They were Mohd. Chaman Vs. State (NCT of Delhi) [2001 (2)  

SCC 28] and Lehna Vs. State of Haryana [2002 (3) SCC 76].  

However, this Court then took notice of the facts and noted  

that the accused in that case had fired at the marriage  

party as he knew that there was going to be a marriage on  

the next day in the house of the complainant.  The accused  

had fired at the time when the feast was going on and 13  

persons  were  killed  on  the  spot  and  8  persons  were  

seriously injured.  Out of all those 13 persons, one was 7  

years’ child.  This Court, under the circumstances, refused  

to convert the death sentence into the sentence for life.

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34. There are three other cases which we must mention.  In  

Haru Ghosh Vs. State of West Bengal [2009 (15) SCC 551],  

where one of us was a party (V.S. Sirpurkar, J.), there was  

a murder of a helpless lady and a child by a person who was  

already suffering death sentence.  However, that act was  

not found to be a pre-meditated act.  It was found that the  

accused had acted on account of the previous enmity and  

since he thought that his livelihood was being attacked by  

the husband of the deceased, though in an incorrect manner.  

It was found that he had not come armed to the scene of  

offence.   It  was  also  found  that  though  he  was  not  

justified in eking out his livelihood by selling liquor,  

but the fact of the matter was that he and his family was  

surviving only on that, and the effort on the part of the  

husband of the deceased to stop the activity of the accused  

was  sufficient  to  nurture  deep  hatred  in  his  mind  on  

account of which the accused acted.  Such is not the case  

here.  In  Dilip Premnarayan Tiwari & Anr. Vs. State of  

Maharashtra etc. [2010 (1) SCC 775], again where one of us  

(V.S. Sirpurkar, J.) was a party, this Court refused to  

confirm the death sentence, where the accused was guilty of  

committing  multiple  murders  (4  in  number).   However,  

considering the fact that the sister of the accused was  

married  to  the  deceased  out  of  a  love  affair,  which  

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marriage  was  not  approved  at  all  by  the  family  of  the  

accused  being  an  inter-caste  marriage  and  further  they  

being  neighbours  and  the  accused  having  to  suffer  the  

ignominy because of the so-called marriage on day to day  

basis, this Court took the view that this was not a case  

where  the  death  sentence  was  to  be  awarded.   The  Court  

considered the psychology of the accused, the taunts that  

he had suffered on account of his sister’s marriage with a  

person of different community and further the fact that the  

situation had gone out of his hand as his sister was on the  

family way.  The Court, therefore, viewed that this could  

not be the rarest of the rare cases.  Lastly, in  Swamy  

Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka  

[AIR 2008 SC 3040], though there was one of the most cold-

blooded  murder  for  gains,  the  Court  recorded  that  

considering  the  absolute  irrevocability  of  the  death  

penalty, sentencing accused to death would not be proper.  

We do not find anything in this decision, which will be  

helpful to the accused in the present matter.

35. Considering all these cases, on the backdrop of the  

facts, which have taken place and provided in this case, it  

must be said that this is one of the rarest of the rare  

cases.  Here is a case where the whole family is wiped out.  

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Five persons have lost their life while the sixth person, a  

helpless lady, who has now been left to be the only member  

of the family, has to live her life with 70% burn injuries.  

The  murder  was  committed  in  a  cruel,  grotesque  and  

diabolical manner.  When all the members of the family were  

having their food, the accused poured petrol in the room  

and set it to fire and went to the extent of closing the  

door also.  He closed the door as established by Vimla Devi  

(PW-1) and Prem Singh in the dying declaration.  This was  

the most fouled act, by which the accused actually intended  

to burn all the persons inside the room and precisely that  

had happened.  Barring Vimla Devi (PW-1), everybody in that  

room was burnt with the exception of Balwant Singh, who  

somehow, was able to open the room and come out.  Even he  

was not spared and almost beheaded by the accused.  It was  

clear that the accused had done this with pre-meditated and  

cold-blooded mind, as he had taken the trouble of carrying  

petrol to his own cousin’s house.  As if all this was not  

sufficient,  he  was  also  carrying  a  sword,  and  probably  

prepared himself to fire on the complainant party, as a  

pistol with two bullets in it was also found on the spot.  

The accused shown extreme depravity of mind in causing a  

sword blow on the neck of Balwant Singh, who himself was  

burnt and was trying to escape.  A murder by burning, by  

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itself, would be a very cruel act.  The agony caused to the  

dying  witnesses  because  of  their  burn  injuries  would  be  

enormous.   Again,  when  it  is  seen  that  there  was  no  

immediate provocation to the accused and all this only was  

on account of the enmity going on in respect of the family  

lands, the enormousness of the crime is increased by many  

folds.  The accused showed scant respect for the law by  

remaining absconding for about 12 years and only because of  

that he could not be brought to books.  It is only his  

accidental arrest and being lodged in other jail that the  

prosecuting agency was able to prosecute him.  Out of the  

five persons who lost their life, Kamla was barely 16 years  

old while Prem Singh was 19 years old only.  Their life was  

nipped in bud.  Both the ladies who lost their life, as  

also  the  other  three  persons  who  lost  their  life  were  

without any arms and were helpless.  They could not have  

even saved themselves and did succumb to the burn injuries.  

The  balance  sheet  of  the  aggravating  circumstances  thus  

exceeds the mitigating circumstances.  In fact, there is no  

mitigating circumstance in this case.  The age is not on  

the side of the accused.  We cannot appreciate the argument  

that it was only a rash act on the part of the accused  

without an intention to commit the murder.  That does not  

appear  to  be  the  case  at  all.   Pouring  of  the  petrol  

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extensively would rule out the intention on the part of the  

accused only to burn the house.  Again, his act of closing  

the  door  after  setting  the  house  to  fire,  would  speak  

completely against him.  Insofar as the other circumstance  

of the accused remaining under the shadow of death sentence  

right from 2004 is concerned, we do not think that that  

circumstance,  by  itself,  is  sufficient  to  mitigate  his  

horrible crime as the time factor is identical with the  

case of Atbir Vs. Govt. of NCT of Delhi (cited supra).

36. Considering the overall circumstances, we are of the  

opinion that the death sentence was rightly awarded by the  

Trial Court and was rightly confirmed by the High Court.  

We find no reasons to interfere in this appeal.  The appeal  

is dismissed.  

……………………………..J. (V.S. Sirpurkar)

………………………………..J. (A.K. Patnaik)

New Delhi; September 16, 2010

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