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PETITIONER: SURJA RAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       25/09/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

ACT:

HEADNOTE:

JUDGMENT:                             WITH         (S.L.P.(CRL.)NO.3082/16(D. NO. 1007 OF 1996)                       J U D G M E N T      G.N. RAY.J.      Leave granted.      The appellant  Surja Ram  was convicted  by the learned Additional Sessions Judge. Hanumangarh in Sessions Trial No. 29 of  1991 for  the  offence  under  Section  302  IPC  for murdering his  real brother  Raji Ram,  Raji Ram’s  two sons Naresh and Ramesh and Niko Bai their Bua, and for an offence under Section  307 IPC  for attempting to murder Sudesh, the daughter of  Raji Ram  and Phoola  Devi the wife of Raji Ram and also  for offence  under Section  450 IPC for committing house trespass  in order  to commit  offence punishable with imprisonment for life. The learned Additional Sessions Judge awarded death  sentence against  the said  accused Surja Ram for the  offence of  murder.  He  was  sentenced  to  suffer imprisonment for  life and  a fine of Rs.2,000/-, in default of payment  of fine, further rigorous imprisonment for three months for the offence under Section 307 IPC and he was also sentenced to  suffer rigorous imprisonment for ten years and fine of  Rs.1000/-, in default of payment of fine, to suffer further rigorous  imprisonment for one month for the offence under Section 450 IPC.      Against such  convictions and  sentences,  the  accused Surja Ram  preferred D.B.Criminal  Appeal No. 265 and 266 of 1995 before  the Rajasthan  High Court  (Jodhpur Bench). The said appeals  were heard  along with  D.B.  Criminal  Murder Reference No,1  of 1995  by the  Rajasthan High Court and by the impugned  common judgment  dated January  18, 1996.  the High Court  dismissed both  the appeals  registered  by  the accused Surja  Ram and  confirmed the  death sentence passed against him.      Surja Ram filed S.L.F. (Crl.) No. 744 of 1996 through a learned counsel against his convictions and sentences before this Court. He also sent another special leave petition from Jail to  the Registry  of this Court which has been numbered

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as D.No.  1007 of  1996.  His  special  leave  petition  was dismissed by this Court after nearing the learned counsel so far as  the order  of convictions  passed against  the  said Accused is  concerned but  notice was issued to the State of Rajasthan limited  only on  the question  of sentences to be passed against  the accused  for  his  convictions  for  the offences aforesaid.      Mr. Rajio  Dutt, the  learned counsel appearing for the accused appellant  Raji Ram  has submitted  that it is not a fit case  calling for  awarding  extreme  penalty  of  death sentence because  sufficient grounds warranting such extreme penalty by holding it as one of the rarest of rare cases are not present.  Mr. Dutt  has submitted  that  certain  facts, relevant for  the consideration of appropriate punishment to be  awarded   against  the  accused  appellant  the  accused appellant, should be noted.      The accused  appellant and  his two  brothers Dalip Ram and the  deceased Raji  Ram had  been living in one compound (Anata) in  their respective  residential unit.  The accused appellant used  to reside  in the middle portion of the said compound and  the deceased  Raji Ram  and Dalip  Ram used to reside respectively on the northern and southern side of the said compound.  The parents  of the accused and his brothers were residing  in Punjab.  There had been partition of joint property amongst the brothers. On such partition the accused and Dalip  Ram each  got 13  killa of  land and the deceased Raji Ram got 14 killa.      There was  some land dispute amongst the brothers about 6 to  7 months prior to the said incident of murder but such dispute  is   stated  to   have  been   sorted  but  at  the intervention of Sarpanch Chandra Pal.      About 5  or 6  days prior  to the incident, the accused expressed the  desire to  erect wire fencing in the compound but the deceased Raji Ram protested against such proposal of the accused.      The prosecution case as proved by the evidences adduced in the  trial, is that on August 7, 1990 at about 9.00 P.M., the members  of the  family of the deceased Raji Ram retired after taking  their dinner.  The informant Dalip Ram. who is the other  brother of the deceased and the wife of Dalip Ram were sleeping  in their courtyard. Raji Ram and his two sons Naresh and  Ramesh were  sleeping in  the outer  room of his residential unit.  Raji Ram’s wife Phoola Devi, her daughter Sudesh and Raji Ram’s father’s sister Niko Pai were sleeping in their  courtyard. In  the courtyard of Surja Ram the wife of the  accused Imarti was also sleeping. After taking meal, the  appellant  went  out  of  the  house.  At  about  12.30 A.M..Dalip Ram  heard the cries of Sudesh. When he came out, he saw  in the  light  that  their  accused  Surja  Ram  was standing with a kassi in his hand and was assaulting Sudesh. Dalip Ram  and the wife of the accused Imarti challenged the accused and  the accused  had run  away. It  has been proved that Sudesh had suffered severe injuries on her neck and she fell down  in the  courtyard and  Niko and  Phoola were also found lying seriously injured. Niko was, however, found dead and Phoola  was gasping for life. When Dalip Ram went inside the room,  he found  the Raji  Ram and  his son  Naresh were lying dead  and the  other  son  Ramesh  though  alive,  was critically injured.  The said  Ramesh, however, died shortly thereafter and  Sudesh and  Phoola were  taken in a jeep and admitted in  the hospital  at Sangaria.  On being treated in the hospital both of them survived.      In awarding  the sentence of death against the accused- appellant, the learned Additional Sessions Judge noted that: a)   The  accused   had  committed  extremely  barbaric  and

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henious crime  of causing  murder of  four persons  and also attempted to  murder the  other two  who,  though  seriously injured, providentially survived. (b)  The accused  committed murder  of his own real brother, two minor  sons of  his  said  brother  and  also  his  Bua. Although the accused also attempted to kill the daughter and the wife  of his  brother, they,  being  seriously  injured. luckily survived. (c)  The accused  committed the  murder of  the said persons and also  attempted to  murder the other two close relations while all  the said  victims were  defenceless as  they were asleep then  and  therefore,  had  no  opportunity  to  save themselves or resist the attack. (d)  The accused attempted to kill Phoola his brother’s wife by cutting  her  neck  and  being  critically  injured,  she remained unconscious  for about  15 days and hovered between life and  death but  luckily survived. Attempt was also made to kill the daughter of his brother by cutting her neck with kassi but she also luckily survived. (e)   The  intention of  the accused  was only to murder all the said  persons because  he inflicted injuries or the neck of all the said persons with a sharp cutting weapon (kassi). (f)  The accused  ensured that  no male member in the family of hi  s brother Raji Ram was alive. As a matter of fact, he attempted to  wipe out  the whole family of Raji Ram but the widow and the daughter of Raji Ram survived even though they suffered serious  injuries on their necks by the kassi blows inflicted by the accused. (g)  There was no instigation or provocation for causing the said murders  of four very close relations and attempting to cause murders of the other two persons. (h)  For some  land dispute  which was  settled  six  months before and the dispute and altercation over a small incident of  putting   the  barbed   wire  in  the  compound  of  the residential complex  which had  also taken place 2 to 3 days before the  incident, the  accused in  a cool and calculated manner attacked all the said persons when they were sleeping in their  house  and  were  utterly  helpless  in  resisting attacks made on them. (i)  The previous  and the subsequent conduct of the accused clearly revealed  that he  was mentally  alert for  which he selected the  opportune moment  to commit  the said  murders when the  victims were asleep and after committing the crime escaped from the scene of crime. (j)  There was complete absence of any feeling of remorse of the accused.      The learned  Additional Sessions Judge after indicating the aforesaid  aggravating factors  in the commission of the crime came  to the  finding that  there was  absence of  any mitigating factor  in favour  of the accused and the heinous act of  murder of four persons including an old aunt and two minor sons  of his  real brother and attempting also to kill his brother’s  wife and  her daughter  in a  most  cool  and calculated manner  by ensuring that none of the victim could offer any resistance because they were asleep at the time of being attacked,  constituted the  offence committed  by  the accused as  one of  the rarest  of rare  cases for which the extreme penalty of death was warranted.      The learned  Judge held  that the death sentence per se was not  unconstitutional as  has been held by this Court in Jagmohan Singh  Vs. State  of U.P.  (AIR 1973  SC 947). Shiv Mohan Singh  Vs. State  AIR 1977  SC 949),  Bachan Singh Vs. State (1980  (2) SCC  684), Shashi  Navar Vs. Union of India and others (1992 SCC (Crl.) 24).      Mr.Du  tta.   the  learned  counsel  for  the  accused-

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appellant  has  submitted  that  though  the  appellant  has committed a  very serious  crime by killing his own brother, his two  minor sons and his Bua when they were asleep and he also attempted  to kill  his brother’s  wife  and  brother’s daughter, the  appellant did  not act  with cruelty  or in a barbaric manner  and also  did not  torture anyone  of  them before committing  the murder or attempting to cause murder. The  learned   counsel  has  submitted  that  though  it  is extremely unfortunate  that the appellant committed the said ghastly murders  of his  brother and  his two minor sons and the old  aunt and  also attempted to kill brother’s wife and daughter, it  should be kept in mind that the appellant felt deeply aggrieved against the conduct of his brother Raji Ram on account of dispute with him in land matter and the recent quarrel which  he had with the deceased for not allowing the appellant to  put fencing as desired by him, in the compound of their  residential complex.  The appellant  unfortunately fell victim  to his  deep seeded  ill  feeling  towards  his brother and  members of  the family  of the said brother and lost his  normal frame  of  mind  for  which  he  could  not restrain himself  and being mad with rage and being actuated by an  urge for  vengeance, murdered  the said  persons  and attempted to murder the other two.      The learned  counsel  for  the  appellant  has  further submitted   that life  once but  to end can never be brought back. It is, therefore, essentially necessary to give a very carefully and  serious  consideration  as  to  whether  such extreme penalty  of death  which will put an end of the life of the  accused, should  be awarded  in a  case or  not. The learned counsel  has  also  submitted  that  the  number  of persons murdered though a relevant consideration in weighing the gravity  of a  crime is  not the  only consideration  in selecting the  extreme penalty  for murder  and  unless  the crime perpetrated  by an accused can safely be placed in the category of  rarest of  rare cases,  the extreme  penalty of death should  not be awarded. In support of such contention, the learned  counsel for  the appellant  has referred  to  a decision of  this Court  in Anshad  and others  Vs. State of Karnataka (1994 (4) SCC 381).      The learned  counsel  for  the  appellant  has  further submitted that  the facts  and circumstances  of the case do not reveal  that the accused was a mania or otherwise blood- thirsty with a high degree of propensity to commit murder of innocent persons.  On the  contrary, the  accused is  a poor agriculturist  who   was   not   booked   for   any   crime. Unfortunately, for  the said  land dispute  and the  quarrel with the  deceased in  connection with  putting of  a barbed fence in  the domestic  house, the appellant suddenly became very much  enraged and  lost the  normal frame  of mind  and control over  his passions.  In such  uncontrolled frame  of mind, he  decided to  murder  his  brother  and  his  family members so  as to  out an  end of  any dispute with them for ever. Such act though very heinous and extremely lamentable, cannot be  categorised as  rarest of rare cases. The learned counsel has  submitted that the accused attacked each of the victim with  a sharp  cutting instrument kassi and inflicted injuries on the neck of each of the victim so that the death could be  hastened. There  was no  tendency on  his part  to subject any  of the victim to any cruel treatment or torture before killing  them. In  the aforesaid  circumstances,  the learned Additional  Sessions Judge and the High Court should not have  awarded the  extreme penalty  of death against the appellant. The  appellant should be given a chance to reform himself in jail and repent for his crime during long soan of imprisonment for  life and  thereafter to be a useful member

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in the  society. He has, therefore, submitted that the death penalty should be set aside by commuting the sentence to the sentence of imprisonment for life.      The learned counsel for the State, however, opposed the submissions of  the learned  counsel for  the appellant that the crime  committed by  the accused  did not  constitute  a rarest of  rare cases for which the extreme penalty of death is warranted.  It has  been submitted by the learned counsel for the  State that  all the  brothers had specific share of the land  on partition  of joint  property and they had been enjoying their respective share of land. There is nothing on record to  indicate that  peaceful  enjoyment  of  the  land allotted to  the share  of the  accused  was  sought  to  be interfered with  by the  deceased who  was none else but his real brother. On the contrary, it has been proved that there was a  dispute between  the brothers  in respect of only one killa of  partitioned land. Such dispute was also sorted out at the  intervention of  the Sarpanch of the village several months back.  hence, there was no just cause for nursing any aggrieved feeling and sense of injustice meted out to him in the hands  of the  said brother.  There was  a minor dispute between the  deceased and the accused 5 to 6 days before the date of the incident when the accused wanted to out a barbed fencing on  a portion  of their  residential complex and the deceased protested against such intention of the accused. In a domestic  life, such  petty discord  and dissension  often happen. For  such a  petty  discord,  there  cannot  be  any occasion for  any man of normal composure to lose control of his senses  and to  become so enraged as to commit murder of brother and  his two  minor sons  and an  old  aunt  and  to attempt to  murder the brother’s wife and daughter unless he is a person of cruel nature and absolutely mean minded. Even if it is assumed that because of such dispute, the appellant had felt  aggrieved and  became enraged, the murders had not been committed  immediately after  the occurrence  when  the accused might  have lost  normal frame of mind. The incident of dispute  in connection  with putting of fencing had taken place several days before the date of commission of murders. It is  quite evident  that the  accused did  not commit said crime under  a grave  and sudden provocation and in a fit of emotional set  back but  being determined  to wipe  out  the entire family of his brother, he selected the most opportune moment to  commit the  said ghastly murders at dead of night when the  brother and  the members  of his  family were fast asleep and were completely helpless to put up any defence.      The learned  counsel for  the State  has also submitted that even  if the  accused had  occasion to  feel  aggrieved against him  brother either  on account of the land dispute, though in  fact no  such dispute  was then  existing, or  on account of  resistance given  by the brother in not allowing the accused  to put  a fencing in their residential complex, there was  no occasion  for the accused to kill two innocent minor sons  of his  brother who  were asleep  at the time of murder. Similarly,  there was  no occasion  to kill  the old aunt and  also to attempt to kill the brother’s wife and the brother’s daughter when they were also asleep and completely defenceless. The  brother’s wife  and  daughter  were  given serious injuries  by the  sharp cutting  instrument on their necks and  it  was  due  to  extreme  good  luck  that  they ultimately survived after prolonged medical treatment in the hospital. The  learned counsel  for the  State has submitted that such  act of murders and attempt to murder had not been committed on  account of any grave or sudden provocation but the same  had been committed in a cool and calculated manner with clear and definite intention to wipe out each member of

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the family  of his real brother. Such act on the part of the accused  has   been  rightly   categorised  by  the  learned Additional Sessions  Judge and also by the High Court as one of the  rarest of  rare cases of murder. The learned counsel has submitted  that the  said act  of extreme  brutality  in committing the  murder of helpless innocent persons is bound to shock  the conscience  of the  society and the cry of the society for  justice and  just punishment  to  the  criminal cannot be  met by  showing any sympathy to the accused, when there is no real mitigating factor in favour of the accused. He has,  therefore, submitted that no interference is called for  against   the  capital  sentence  awarded  against  the accused.      After giving our anxious consideration to the facts and circumstances of  the  case,  it  appears  to  us  that  for deciding just  and appropriate sentence to be awarded for an offence,  the   aggravating  and   mitigating  factors   and circumstances in  which a crime has been committed are to be delicately balanced  in a  dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in  Dennis Lounde Mcoautha Vs. State of California ((402) U.S.  183 L.  Ed. II  711) that  no formula of a full proof nature  is possible  that would  provide a  reasonable criterion in  determining a  just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of  the crime  of murder. In the absence of any full proof formula  which may  provide any  basis for  reasonable criteria to  correctly assess  various circumstances germane to the  consideration of  gravity of  crime of  murder,  the discretionary judgment  in the  facts of  each case,  is the only  way   in  which   such  judgment   may  be   equitably distinguished.      In Shanker  Vs. State of Tamil Nadu (1994 (4) SCC 479), this Court  has indicated that the choice as to which one of the two punishments provided for murder is a proper one in a given case  will depend upon the particular circumstances of that case  and the  Court has  to  exercise  its  discretion judicially and on well-recognised principles after balancing all the mitigating or aggravating circumstances of the case.      In Jasnupna  Bharat  Singh  and  others  vs.  State  of Gujarat (1994(4)  SCC 353),  it has  been held by this Court that in  the  matter  of  death  sentence,  the  Courts  are required to  answer new  challenges and mould the sentencing system to  meet these  challenges. The  object should  be to protect the  society and  to deter the criminal in achieving the avowed  object of  law by imposing appropriate sentence. It is  expected that the courts would operate the sentencing system  as  to  impose  such  sentence  which  reflects  the conscience of  the Society and the sentencing process has to be stern where it should be.      In Dhananjoy  Chatterjee vs. State of west Bengal (1994 (2) SCC  220), this Court has observed that shockingly large number of  criminals  go    unpunished  thereby  increasing, encouraging  the  criminals  and  in  the  ultimate  making. justice suffer  by weakening  the system’s  credibility. The imposition of  appropriate punishment is the manner in which the Court  responds to the society’s cry for justice against the criminal.  Justice demands  that  courts  should  impose punishment befitting  the crime  so that  the courts reflect public abhorrence of the crime. The Court must not only keep in view the right of the criminal but also the rights of the victim  of   the  crime   and  the  society  at  last  while considering the imposition of appropriate punishment.-      Similar view  has also  been expressed  in Ravji  @ Ram Chandra vs.  State of Rajasthan (JT 1995 (B) SC 520). It has

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been held in the said case that it is the nature and gravity of the  crime but  not the  criminal, which  are germane for consideration of appropriate punishment in a criminal trial. The Court  will  be  failing  in  its  duty  if  appropriate punishment is  not  awarded  for  a  crime  which  has  been committed not  only against  the individual  victim but also against the society to which the criminal and victim belong. The punishment  to be  awarded  for  a  crime  must  not  be irrelevant but  it should  conform to and be consistent with the atrocity  and brutality  with which  the crime  has been perpetrated, the  enormity of  the crime  warranting  public abhorrence and  it should  respond to  the society’s cry for justice against the criminal. If for extremely heinous crime of murder  perpetrated in  a very  brutal manner without any provocation, most  deterrent punishment  is not  given,  the case of deterrent punishment will lose its relevance.      In  the   instant  case,   there  is   absence  of  any provocation. There  is no  material on  record from which it can be  reasonably held that the accused had any occasion to reasonably  feel  aggrieved  for  any  unjust  and  improper conduct  on  the  part  of  the  deceased  brother.  It  has transpired from evidence adduced that joining lands had been partitioned long  back amongst  the brothers and each of the brothers including  the deceased  and the  accused had  been possessing his  respective  allotted  lands.  There  was  an occasion for  difference and dispute between the accused and the deceased  in respect  of only one killa of land but such dispute had  been sorted  out at  the  intervention  of  the Sarpanch of the village about eight to ten months before the incident. After  that no  fresh incident  had taken place in recent past for which there was any occasion for the accused to feel  aggrieved concerning  his landed property. From the evidence it  transpires that all the three brothers had been residing  in  separate  portions  within  their  residential compound or Anata. A few days before the incident, there was a quarrel  between the  accused and  the deceased  when  the accused intended  to put  a barbed  fencing on  a portion of their residential  complex but the deceased objected to such course of action. Such incident cannot be reasonably held to be  a   cause  for   being  temperamentally  upset  and  for entertaining so  much wrath  and spirit  of vengeance as may impel man of normal composure and frame of mind to run amuck and perpetrate  ghastly murders  of such magnitude. There is no evidence  to  indicate  that  in  view  of  such  quarrel happening a  few days  prior to  the incident there had been any aftermath and further dispute and resentment between the deceased and  the accused  either immediately before or even proximately before  the incident  of murders and attempts to commit murders.  From the  evidence adduced,  it is  clearly revealed that  the accused,  in a cool and calculated manner intended to  wipe out  the entire  family of his brother. In that end  in view,  he selected  the most  opportune moment, namely, dead  of night when his brother and other members of his family  would  remain  asleep  so  that  they  would  be absolutely helpless  and not  capable to give any defence to save themselves. In order to ensure death, the accused chose to cut  vital part  of the body, namely, the neck by a sharp cutting weapon  (kassi) when  his victims  were asleep.  He, therefore, succeeded  in murdering his brother Raji  Ram and his two  minor sons  by  cutting  their  necks  without  any resistance from  them. He  did not  even spare  the poor old aunt and  brutally murdered her by cutting her neck when she was asleep.  In order  to wipe  out the  whole family of his brother, the  accused also attempted to murder the brother’s wife and the brother’s wife and the daughter were critically

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injured by  the accused  by cutting their necks. The wife of the brother,  as a  matter of fact, hovered between life and death and  remained unconscious for a number of days but out of sheer luck she could survive. The daughter of the brother also luckily survived after being seriously injured when her neck was  also cut  by giving  a number  of injuries  in and around the  neck. It  has  been  indicated  by  the  learned Additional Sessions  Judge that  the  accused  was  in  full senses and had committed the murders of four close relations one after  the other  and also attempted to commit murder of his brother’s  wife and  daughter in  a cool  and calculated manner. He  did not even feel remorsed and being quite alive to the  enormity of  the crime  committed by  him he escaped from the place of occurrence.      It is true that the appellant was not convicted for any other offence on any previous occasion. Such fact can hardly be considered  as a  mitigating  factor  in  favour  of  the appellant that will outweigh all the aggravating factors and circumstances in  which the  crime of  the murders  had been committed. The  murders had been committed very brutally and mercilessly of  absolutely innocent persons, namely, the Bua and two  minor sons  of his  brother with  whom there was no occasion to  come in conflict and to entertain any grudge or ill feeling. Even if it is assumed that there was still some property dispute between the brothers despite sorting out of such dispute  at the  intervention of the Sarpanch, for such common place  property dispute between brothers particularly when the  accused was  not dispossessed  from the possession and enjoyment  of his  demarcated  landed  property  by  the deceased brother,  it cannot  be reasonably  held  that  the accused had  a genuine cause to feel aggrieved for injustice meted out  to him in the hands of his deceased brother which may impel  him to  cause the  murder of  his brother. In any event, there  could not  be any  cause to take a decision to wipe out  the entire  family of  the brother in a very cruel manner when  being asleep they were absolutely helpless. The members  of  the  family  of  his  brother  were  absolutely innocent and  two of them were even minors. Such murders and attempt to  commit murders  in a  cool and  calculate manner without provocation  cannot but  shock the conscience of the society which  must abhor  such heinous  crime committed  on helpless innocent  persons. Punishment  must also respond to the society’s  cry for  justice against  the criminal. While considering the  punishment to  be given to the accused, the Court should  be alive not only to the right of the criminal to be  awarded just  and fair  punishment  by  administering justice tempered  with such mercy as the criminal may justly deserve, but  also to the rights of the victims of the crime to  have   the  assailant  appropriately  punished  and  the society’s reasonable  expectation from  the  court  for  the appropriate deterrent  punishment conforming  to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. In the facts and circumstances of  the case,  we are  of the  view, that  the crime committed  by the  accused falls  in the  category  of rarest of  rare cases  for which extreme penalty of death is fully justified.  We therefore,  find no reason to interfere with the  sentence of  death awarded  against the  appellant since confirmed  by the High Court. This appeal and the jail petition being numbered as D.No.1007/96 stand dismissed.