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Friday, February 8, 2013

an offence under Section 302 read with Section 34 IPC for murder = We are of the view, so far as this case is concerned, that the extreme sentence of capital punishment is not warranted. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, we are of the view that the appellants deserve no sympathy. Considering the totality of facts and circumstances of this case we hold that imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, we hold that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified as above. Under such circumstance, we modify the sentence from death to life imprisonment. Applying the principle laid down by this Court in Sandeep (supra), we are of the view that the minimum sentence of thirty years would be an adequate punishment, so far as the facts of this case are concerned. Appeal is partly allowed.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1055 OF 2006

Gurvail  Singh @ Gala & Another              .. Appellants
                                   Versus
State of Punjab                              .. Respondent


                               J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.    This criminal appeal  arises  out  of  the  judgment  dated  22.9.2006
passed by the High Court of Punjab and Haryana in Criminal Appeal  No.  890-
DB of 2005 and Murder Reference No. 10 of 2005.  The  High  Court  dismissed
the appeal of the accused persons and also reference was confirmed.

2.    The appellants, along with two  others,  were  tried  for  an  offence
under Section 302 read with Section 34 IPC for murder of one Kulwant  Singh,
his two sons – Gurwinder Singh and Davinder Singh and his  wife  –  Sarabjit
Kaur on 21.8.2000 at about  1.30  am  and  were  convicted  for  murder  and
awarded death sentence.

3.    The prosecution case, briefly stated, is as follows:
      Balwant Singh and Jaswant Singh are two sons of Sharam Singh  (PW  1).
Both Balwant Singh and Jaswant Singh died prior to the date of the  incident
on 21.8.2000.  Sharam Singh’s  third  son  Kulwant  Singh  had  two  sons  –
Gurwinder Singh and Davinder  Singh.   Sarabjit  Kaur  was  his  wife.   PW1
(Sharam Singh) had 8 acres of land at Village Bhittewad, District  Amritsar,
which was mutated in his name.  In the family partition,  that  8  acres  of
land was divided into four shares, i.e. PW1 gave 2 acres  of  land  each  to
his sons and wife and 2 acres of land was retained by him.    2nd  appellant
Jaj Singh and his brother Satnam Singh –  accused  and  his  mother  Amarjit
Kaur – accused, were pressurising on PW1 to  get  the  land  transferred  in
their names in the Revenue record.  PW1 wanted them to spend the  money  for
mutation, which was not done.  There were  frequent  quarrels  between  PW1,
2nd appellant and Amarjit Kaur on that.   They nurtured a feeling that  PW1,
under the influence of his son Kulwant Singh, would not mutate their  shares
in their names.  About 8 to 9 days prior to  the  incident,  2nd  appellant,
Satnam Singh and 1st appellant Gurvail Singh went to  the  house  of  PW1and
threatened him that in case he did not give their  share  in  the  land  and
mutated in their names, they would kill him and his son Kulwant  Singh.   On
20.8.2000, the appellants and other accused persons were found sitting on  a
cot outside the house of PW1, threatening PW1 and Kulwant  Singh  that  they
would not be spared, since the properties were not mutated in their names.


4.    PW1, on the intervening night of 20-21.8.2000,  was  sleeping  in  the
drawing room of his house and Kulwant Singh, his wife Sarabjir Kaur and  two
sons Gurwinder Singh and Davinder Singh were sleeping in the courtyard.   At
about 1-1.30 a.m. on 21.8.2000, PW1 heard somebody knocking at the  door  of
his house and he saw through the window the  appellants,  Satnam  Singh  and
Amarjit Kaur.  1st appellant was carrying  Toka,  2nd  appellant  was  armed
with Datar and Amarjit Kaur was carrying Kirpan.  2nd  appellant  Jaj  Singh
opened the attack and gave Datar blow  to  Kulwant  Singh  and  his  brother
Satnam Singh and inflicted Kirpan blows on  Sarabjit  Kaur.   1st  appellant
Gurvail Singh, who was armed with Toka, starting assaulting Gurwinder  Singh
and Davinder Singh.  PW1 tried to  intervene  and  avoid  the  incident  and
raised hue and cry, which attracted Dalbag Singh and he opened the  door  of
the Baithak room in which PW1  was  kept  locked.   Due  to  this  incident,
Kulwant Singh, his wife Sarabjit Kaur  and  two  sons  Gurwinder  Singh  and
Davinder Singh were murdered.

5.    PW1 gave the first  information  statement  to  PW7,  SHO,  Police  at
Police Station Raja Sansi.  The statement was recorded  in  the  morning  at
about 8.00 am.  The formal FIR was recorded at about 9.00 am  under  Section
302 read with Section 34 IPC at Police Station Raja Sansi, Amritsar.    S.I.
Mandip Singh, PW7, took up the investigation.  The  inquest  report  of  all
the four dead bodies was prepared and the bodies were sent for  post-mortem.
 The appellants Gurvail Singh and Jaj Singh were arrested on  25.8.2000  and
5.9.2001 respectively.   Satnam Singh was arrested on 25.8.2000 and  Amarjit
Kaur on 26.8.2000.   All the accused were charged for offence under  Section
302 read with Section 34 IPC.

6.    Dr. Gurmanjit Rai, PW2 conducted the  autopsy  on  the  dead  body  of
Kulwant Singh on 21.8.2000.  According to him, all the injuries  were  ante-
mortem in nature and the cause of death of Kulwant Singh  was  severance  of
neck structure. According to him, injury no. 2 sustained  by  Kulwant  Singh
was sufficient for causing death in the ordinary  course  of  nature.    Dr.
Gurmanjit Rai also conducted the post-mortem on the dead  body  of  Sarabjit
Singh on the same day and opined that the cause of death  was  severance  of
neck structure and injury no. 2 was sufficient  for  causing  death  in  the
ordinary course of nature.   Dr. Amarjit Singh PW9 conducted the autopsy  on
the dead bodies of Gurwinder Singh and Davinder Singh and  opined  that  the
death was due to severance of neck structure, which was sufficient to  cause
death  in  the  ordinary  course  of  nature.       On  the  side   of   the
prosecution, PW1 to PW10 were examined and for the defence DW1 to  DW6  were
examined.

7.    The trial Court,  after  considering  all  the  oral  and  documentary
evidence, found all the accused guilty under Section 302 read  with  Section
34 IPC.   The trial Court noticed that Satnam Singh was below  18  years  of
age and was Juvenile and hence he was sent to  the  Juvenile  Justice  Board
for passing the necessary orders in accordance with the  provisions  of  the
Juvenile Justice (Care and Protection of Children) Act,  2000.   So  far  as
Amarjit Kaur is concerned, the Court on evidence found that she  had  played
a prominent role and hence was awarded  life  imprisonment  and  a  fine  of
Rs.2,000/- under Section 302 IPC for each of the murders and, in default  of
payment of fine, to further undergo one year RI and all the  sentences  were
directed to run concurrently.  So far as Gurvail Singh (1st  appellant)  and
Jaj Singh (2nd appellant) are concerned, the trial Court took the view  that
it is they who had mercilessly murdered Kulwant  Singh  and  also  Gurwinder
Singh and Davinder Singh.  The trial Court found no  mitigating  factors  in
their favour and held that the case would fall in the  category  of  “rarest
of rare  cases”.   Consequently,  they  were  convicted  and  awarded  death
sentence.

8.    Both Gurvail Singh and Satnam Singh  filed  appeals  before  the  High
Court of Punjab and Haryana, which were heard along Murder Reference No.  10
of 2005 and the High Court also concurred with the views of the trial  Court
and took the view that it was a fit case where the  death  sentence  is  the
adequate punishment, since it falls within the category of “rarest  of  rare
cases”, against which this appeal has been preferred.

9.    Shri Rishi Malhotra,  learned  counsel  appearing  on  behalf  of  1st
appellant and Shri Tara Chandra Sharma, learned counsel appearing on  behalf
of 2nd appellant, confined their arguments  more  on  the  sentence,  rather
than on the findings recorded by the Courts  below  on  conviction,  in  our
view  rightly.   We  have  gone  through  the  entire  evidence,  oral   and
documentary and we are of the considered opinion, that no grounds have  been
made out to upset the well considered judgment of the trial  court  as  well
as that of the High Court.  Learned counsel, at  length,  placed  before  us
the various mitigating circumstances which,  according  to  them,  were  not
properly addressed either by the trial Court or the High Court  and  wrongly
awarded the death sentence to both  the  appellants  treating  the  case  as
“rarest of rare cases”.   The  appellant  was  arrested  on  25.8.2000  and,
since then, he is in jail and he was about 34 years of age on  the  date  of
incident and is married and has four children.  2nd appellant  was  aged  22
years at the time of incident.   Looking  to  the  age  of  the  appellants,
learned counsel submitted that the  possibility  of  their  reformation  and
rehabilitation cannot be ruled out.  Further, it is also  pointed  out  that
the antecedents of the appellants are unblemished and they had not  indulged
in any criminal activities and it was property dispute which  culminated  in
the death of few persons.  Learned counsels pointed out that since they  had
already undergone sufficient number of years in jail, they may be set  free.
 Learned counsels also placed reliance on the judgments  of  this  Court  in
Bachan Singh v. State of  Punjab  (1980)  2  SCC  684,  Bachitar  Singh  and
Another v. State of  Punjab  (2002)  8  SCC  125,  Prakash  Dhawal  Khairner
(Patel)  v.  State  of  Maharashtra  (2002)  2   SCC   35,   Santosh   Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498,  Ramesh  and
Others v. State of Rajasthan (2011) 3 SCC 685,  Sandeep  v.  State  of  U.P.
(2012) 6 SCC 107 etc.

10.   Shri Jayant K. Sud, learned  Additional  Advocate  General,  State  of
Punjab, appearing on behalf of the State, on the other hand, submitted  that
the appellants deserve no sympathy, since they  were  instrumental  for  the
death of four persons – Kulwant Singh, his wife Sarabjit Kaur and  two  sons
Gurwinder Singh and Davinder Singh.  Shri Sud submitted that the  appellants
had wiped off the entire family in the presence of PW1 and,  therefore,  the
appellants deserve no sympathy  and  the  case  clearly  calls  for  extreme
penalty of capital punishment.  Shri Sud also submitted that the murder  was
committed in  an  extremely  brutal,  grotesque,  diabolical,  revolting  or
dastardly manner so as to arouse  intense  and  extreme  indication  of  the
community, and hence appellants deserve no  sympathy.   Reference  was  also
made to the judgment of this Court  in  Machhi  Singh  v.  State  of  Punjab
(1983) 3 SCC 470 and submitted that none  of  the  mitigating  circumstances
laid down by the Court would come to the rescue of the appellants so  as  to
escape them from capital punishment.

11.   This Court has recently in Sangeet  &  Another  v.  State  of  Haryana
(2012) 11 SCALE 140 (in which one of us – K. S. Radhakrishnan - was  also  a
member) elaborately discussed the principles which have to be applied  in  a
case when the Court is called upon to determine whether the case  will  fall
under the category  of  “rarest  of  rare  cases”  or  not.   The  issue  of
aggravating and mitigating circumstances has been elaborately dealt with  by
this Court in para 27 of  that  judgment.    This  Court  noticed  that  the
legislative change  and  Bachan  Singh  discarding  proposition  (iv)(a)  of
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, Machhi  Singh  revived  the
“balancing” of aggravating and mitigating circumstances  through  a  balance
sheet theory.  In doing so, it sought to compare  aggravating  circumstances
pertaining to a crime with the  mitigating  circumstances  pertaining  to  a
criminal.  This Court held that these are completely distinct and  different
elements and cannot be compared with one another and a balance sheet  cannot
be drawn up of two distinct  and  different  constituents  of  an  incident.
Reference was also made to the judgment of this Court in Swami  Shraddananda
(2) v. State of Karnataka (2008) 13 SCC 767, and this Court opined that  not
only does the aggravating  and  mitigating  circumstances  approach  need  a
fresh look but the necessity of adopting this approach also  needs  a  fresh
look in the light of the conclusions in  Bachan  Singh.    This  Court  held
that even though Bachan Singh intended “principled  sentencing”,  sentencing
has now really become judge-centric as  highlighted  in  Swamy  Shraddananda
and Bariyar.   The ratio of crime and criminal  has  also  been  elaborately
dealt with in Sangeet, so also the  standardization  and  categorization  of
crimes.  This Court noticed that despite Bachan Singh, the particular  crime
continues to play any more important role than “crime and criminal”.

12.   This Court in Sangeet  noticed  that  the  circumstances  of  criminal
referred to in Bachan Singh appear to have taken a bit of back seat  in  the
sentencing process and took the view, as already indicated,  balancing  test
is not the correct test  in  deciding  whether  the  capital  punishment  be
awarded or not.  We may, in this case, go a little further and  decide  what
will be the test that we can  apply  in  a  case  where  death  sentence  is
proposed.

13.   We notice that, so far as this case is concerned,  appellants  do  not
deserve  death  sentence.   Some  of  the   mitigating   circumstances,   as
enunciated in Machhi Singh, come  to  the  rescue  of  the  appellants.  Age
definitely is a factor which cannot be  ignored,  though  not  determinative
factor in all fact situations.     The probability that the accused  persons
could be reformed and rehabilitated is also a factor to be  borne  in  mind.
To award death sentence, the aggravating circumstances (crime test) have  to
be fully satisfied and there should be no mitigating circumstance  (criminal
test) favouring the accused.  Even  if  both  the  tests  are  satisfied  as
against the accused, even then the Court has to finally apply the Rarest  of
Rare Cases test (R-R Test), which depends on the perception of  the  society
and not “judge-centric”, that  is  whether  the  society  will  approve  the
awarding of death  sentence  to  certain  types  of  crime  or  not.   While
applying this test, the Court has to  look  into  variety  of  factors  like
society’s abhorrence, extreme indignation and antipathy to certain types  of
crimes like rape  and  murder  of  minor  girls,  especially  intellectually
challenged minor girls,  minor  girls  with  physical  disability,  old  and
infirm women with those disabilities etc.  examples  are  only  illustrative
and  not  exhaustive.   Courts  award  death  sentence,  because   situation
demands, due to constitutional compulsion, reflected  by  the  will  of  the
people, and not Judge centric.

14.   We are of the view, so  far  as  this  case  is  concerned,  that  the
extreme sentence of capital punishment is not warranted.  Due  to  the  fact
that the appellants are instrumental for  the  death  of  four  persons  and
nature of injuries  they  have  inflicted,  in  front  of  PW1,  whose  son,
daughter-in-law and two grand children were murdered, we  are  of  the  view
that the appellants deserve no sympathy.  Considering the totality of  facts
and circumstances of this case we hold that imposition of death sentence  on
the appellants was not warranted but while  awarding  life  imprisonment  to
the appellants, we hold that they must serve a minimum of  thirty  years  in
jail without remission.   The  sentence  awarded  by  the  trial  court  and
confirmed by the High Court is modified as above.  Under such  circumstance,
we modify the sentence from  death  to  life  imprisonment.    Applying  the
principle laid down by this Court in Sandeep (supra), we  are  of  the  view
that the minimum sentence of thirty years would be an  adequate  punishment,
so far as the facts of this case are concerned.
      Appeal is partly allowed.



                                      .......................................
                                      .....J.
                                      (K. S. RADHAKRISHNAN)


                                      .......................................
                                      .....J.
                                      (DIPAK MISRA)
New Delhi,
February 07, 2013

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