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
