Supreme Court of India

GURDEV SINGH AND ANR.versusSTATE OF PUNJAB

Citation: 2003 INSC 362
Decided: 1 August 2003
Disposal: Dismissed
Bench: K G BALAKRISHNAN

Holding

The convictions under IPC s.302 r/w s.149 and the death sentences are upheld; the appeals are dismissed.

Summary

Gurdev Singh and Satnam Singh were part of a five‑person gang that opened fire on a wedding feast and later on another house, killing 15 people and injuring eight. They were tried separately after absconding, convicted under IPC s.302 r/w s.149 and sentenced to death, a judgment affirmed by the High Court. The Supreme Court considered whether procedural lapses (delay in filing the FIR, inconsistencies in a witness statement) and the failure to adjourn for sentencing under CrPC s.235(2) vitiated the death sentence, and whether the sentence was justified in view of mitigating factors. Relying on the "rarest of rare" doctrine, Section 354(3) CrPC guidelines, and precedents, the Court held the convictions and death sentences were sound, and dismissed the appeals, also vacating the stay on the execution of co‑accused.

Issues considered

The effect of minor procedural infirmities (FIR delay, witness statement inconsistencies) on the conviction.
Whether non‑compliance with CrPC s.235(2) (adjournment for sentencing) invalidates a death sentence.
Whether the death penalty is justified under the "rarest of rare" principle given the alleged mitigating circumstances.
Whether an appeal can be heard on merits after a related SLP concerning co‑accused has attained finality.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 309(2) proviso, s. 354(3)
Indian Penal Code, 1860s. 149, s. 302

Subjects

murderunlawful assemblydeath penaltyrarest of rare doctrineSection 302 IPCSection 149 IPCSection 354(3) CrPCprocedural infirmitiesFIR delaysentencing adjournmentfinality of SLPcapital punishment

Judgment

A GURDEV SINGH AND ANR.
v.
STATE OF PUNJAB

AUGUST I, 2003

B [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

Penal Code, 1860-Sections 302 r/w 149-Murder of 15 persons and
injuries to 8 others-By 5 accused-3 accused arrested while 2 absconded-
C Trial, Appeal to High Court, Special Leave Petition and Review Petition in
Supreme Court-Conviction and death sentence to 2 accused while acquittal
of one-Arrest ofabsconded accused -incident witnessed by eyewitnesses, two
of them injured-Conviction and death sentence by Courts be/ow-During
pendency of SLP plea for recalling the dismissal order of previous SLP-
Order recalled and leave granted-Held: Offence of accused proved-Hence
D conviction and sentence justified-The act is so gruesome, merciless and brutal
that aggravating circumstances outweigh the mitigating circumstances-Since
the previous SLP was finally disposed of and conviction and sentence had
attained finality, it is not just, proper and legal to hear the matter again on
merit.
E Criminal Procedure Code, 1973-Section 235(2) and proviso to Section
309(2) (as amended by Amending Act, 45 of 1978)-Death sentence-
Pronouncement of sentence on the same day on which conviction order
passed-Justification of sentence-Held: sentence is not vitiated for non-
compliance with Section 235(2) in view of proviso to Section 309(2).
F Section 354(3)-Death sentence-Guidelines for invoking-Held: No
rigid formula or standards can be fu:ed and only a broad guideline cohsistent
with legislative policy as provided under Section 354(3), viz. providing special
reasons for it, shall be considered-Sentencing.

G Appellant-accused in Criminal Appeal No. 392/2002 alongwith the
appellant-accused in Criminal Appeal No. 393/2002 and another accused
went to the house of PW-6 on the eve of the marriage of her son. PW9
armed with firearms started firing at the relative.s gathered there when
feast was going on. They continued the shooting for 10-15 minutes. The
shooting resulted in 13 deaths and serious injuries to 8 persons. Thereafter
H so
GURDEV SINGH v.STA TE OF PUNJAB 81

all the accused went to the house of PW15 and started firing as a result A
of which father and brother of PW15 died on the spot. Thereafter they
went to two other places and caused death of two persons.

Appellants in Criminal Appeal No. 393-2002 and another accused !

were arrested immediately while appellants in Criminal Appeal No. 392/
2002 absconded. Appellants in Criminal Appeal No. 393/2002 were tried B
and were found guilty for offence punishable u/s 302 r/w Section 149 IPC
and were sentenced to death. However, another accused was acquitted.
High Court confirmed the death sentence. Special Leave Petition as well
as Review Petition against the same were dismissed by this Court.

Separate trial was initiated against the appellants in Criminal C
Appeal No. 392/2002, after they were apprehended. During trial PWs 7
and 8, the injured witnesses and PWs 6 and 9 were examined as
eyewitnesses to prove the first incident. PW 15 was examined as eye-
witness to prove the second incident. Motive was also attributed to the
accused to attack the family members of PW6. They were found guilty of D
offence punishable u/s 302 r/w Section 149 IPC and accordingly convicted
1

and sentenced to death. On appeal and death reference, High Court
confirmed the conviction and sentence. Special Leave Petition was filed
against the same. During pendency of the petition prayer was made to
recall the order of dismissal of previous SLP filed by the appellants in E
Criminal Appeal No. 393/2002 and the same was recalled by this Court
and leave was granted.

Appellants contended that there were infirmities in the prosecution
case viz. statement of PW6 as to lodging of FIR and actual lodging of FIR
are contradictory and FIR reached the Magistrate belatedly; that sentence F
imposed was vitiated for non-compliance with Section 235(2) Cr.P.C.; and
that death sentence was not justified as there were mitigating
circumstances.

Dismissing the appeals, the Court
G
HELD: I.I. It is proved beyond reasonable doubt that the appellants
were responsible for causing the death of 15 persons, besides causing
grievous injuries to eight others. They have been rightly convicted by the
Sessions Court for the various offences charged against them. (88-FI

1.2. Minor infirmities would not cast doubt on the prosecution's H
82 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A case. PW-6 was examined in court after a long lapse of time and 1the
inconsistency in narrating the events by her subsequently may 'have been
due to fading of memory and it cannot be considered a serious mistake.
Here is a case where a serious crime had been committed and the dead
bodies of as many as 17 victims had to be taken care of and inquest and
B post-mortem had to be conducted at the instance of the police. This must
have caused few hours' delay in sending the FIR to the Magistrate. All
the eye-witnesses deposed in unmistakable 'terms that the appellants were
present at the scene of the crime and used firearms and they continuously
went on firing on the innocent victims for about 10-15 minutes. [88-A-C)

C 2. In view of third proviso to Section 309(2) Cr.P.C. by Amending
Act 45of1978, the mandate. of the legislature is clear that no adjournment
can be granted for the pu.rpose only of enabling the accused person to show
cause against the sentence proposed to be imposed upon him. Nonetheless,
the Court can in appropriate cases grant adjournment for the aforesaid
purpose, if the proposed sentence is a sentence of death. From the material
D on· record, it does not appear that any request was made to the Sessions
Judge for adjournment. In the circumstances, the sentence imposed was
not vitiated for non-compliance with Section 235(2) of the Code of
Criminal Procedure, 1973. [89-C-D)

Ramdeo Chauhan v. State of Assam, [2001) 5 SCC 714, relied on.
E
Muniappan v. State of Tamil Nadu, AIR (1981) SC 1220 and Allauddin
Mian and Ors. v. State of Bihar, AIR (1989) SC 1456 = [1989) 3 SCC 5,
distinguished.

3.1. After amendment of Criminal Procedure Code, 1898 in 1974,
F there was significant change in the legislative policy with regard to the
sentence of death or imprisonment for life provided for murder and certain
other capital offences under Penal Code. As per the changed policy, when
conviction for an offence punishable with death or in the alternative with
impriso~ment for life or imprisonment for a term of years is recorded,
G the judgment should state reasons for the sentence awarded and in the
case of sentence of death, special reasons must be given. Therefore, as per
Section 354(3) Cr.P.C. in every case where the court finds that the capital
punishment is the inevitable consequence, the court should give special
reasons. No rigid formula or standards can be fixed and only a broad
H guideline consistent with the legislative policy indicated by the Legislature
GURDEV SINGH v.STATE OF PUNJAB 83
in Section 354(3) or Cr.P.C. alone shall be considered for invoking the A
extreme penalty of death sentence. 190-B-C; 91-F)

Bachan Singh v. State of Punjab, 11980) 2 SCC 684, relied on.

Ediga Anamma v. State of Andhra Pradesh, AIR (1974) SC 799 and
Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, referred to. B
3.2. It is not a case where imprisonment for life is an adequate
sentence to meet the ends of justice. Normally, the evidence regarding the
character of the accused will not be adduced by the prosecution. It is true
that there is no direct evidence regarding the motive except a suggestion
that there was earlier a confrontation between one of the accused and a C
son of the complainant and in that incident one of the servants of the
accused died; but there is no direct evidence. The aggravating
circumstances of the case, however, are that the appellants, having known
that on the next day a marriage was to take place in the house of the
complainant and there would be lot of relatives present in her house, came D
there when a feast was going on and started firing on the innocent persons.
Thirteen persons were killed on the spot and eight others were seriously
injured. The appellants thereafter went to another place and killed the
father and brother of PW-15. Out of the thirteen persons, one was seven
year old child, three others were at the threshold of their lives. The post-
mortem reports show their age ranged between 15 to 17 years. It is true E
that it cannot be said that they would be further menace to the society or
not as we live as creatures saddled with an imperfect ability tn predict
future. Nevertheless, the law prescribes for future, based upon its
knowledge of past and is being forced to deal with tomorrow's problems
with yesterday's tools. The entire incident is extremely revolting and shock F
the collective conscience of the community. The acts of murder committed
by the appellants are so gruesome, merciless and brutal that the
aggravating circumstances far outweigh the mitigating circumstances.
Moreover, the two accused who were earlier tried are already sentenced
to death and their Special Leave Petition was finally disposed of by this
Court. Thus, the death sentence imposed on the appellants is confirmed. G
(94-B-H; 95-A)

Machhi Singh and Ors. v. State of Punjab, [1983) 3 SCC 470, relied
on.

Allauddin Mian and Ors. v. State of Bihar, 11989) 3 SCC 5; Janki Dass H
84 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A v. State (Delhi Administration), (1994) Supp. 3 SCC 143; Sheikh Ishaque and
Ors. v. State of Bihar, (1995) 3 SCC 392; A. Devendran v. State of Tamil
Nadu, (1997] 11 SCC 720; Kumudi Lal v. State of UP., (1999) 4 SCC 108;
Om Prakash v. State of Haryana, (1999) 3 SCC 19; Mohd. Chaman v. State
)1111
(NCT of Delhi) (2001) 2 SCC 28 and Lehnd v. State of Haryana (2002) 3
B sec 76, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 392
of 2002.

From the Judgment and Order dated 20.8.200 I of the Punjab and
C Haryana High Court in M.R. No. 2/2001 and Crl. A. No. 109DB of 2001.

WITH

Crl. A. No. 393 of 2002.

Seeraj Bagga, (A.C.) for the Appellants.
D
A.G. Choudhary, Bimal Roy Jad, Ms. Sunita Pandit and B.K. Khurana
for the Respondent.

The Judgment of the Court was delivered by

E K.G. BALAKRISHNAN, J. The appellants Gurdev Singh and Satnam
Singh were tried by the Addi. Sessions Judge, Amritsar, and found guilty of
offence punishable under Section 302 read with Section 149 IPC and other
allied offences. As per the prosecution case, these appellants, along with
three others had caused the death of 17 persons. The Addi. Sessions Judge
F held that the prosecution proved beyond reasonable doubt that these appellants
were members of an unlawful assembly which accomplished its common
object of causing death of 15 persons. These appellants were convicted and ,.
sentenced to death. They preferred an appeal before the High Court of Punjab
and Haryana and the matter was also referred to the High Court for
confirmation of the death sentence. The High Court affirmed the death sentence
G in respect of these appellants. These appellants challenge the judgment of the
High Court.

Though the incident occurred on 2.1.11.1991., these appellants were
absconding and could be apprehended only on 26.8.1996 whereas the other
three accused, namely, Piara Singh, Sarabjit Singh (Appellants in Criminal
H Appeal No. 393 of 2002) and Jasvinder Singh were tried by the Sessions
GURDEVSINGH v. STATEOFPUNJAB[BALAKRISHNAN,J.] 85

Judge, Amritsar, in Sessions Case No. 94 of 1992 and the Sessions Judge A
held that Piara Singh and Sarabjit Singh were members of an unlawful
assembly whose common object was to kill 15 persons. By judgment dated
15.1.1996 the Sessions Court found Piara Singh and Sarabjit Singh guilty of
offence punishable under Section 302 read with Section 149 IPC and sentenced
them to death. Another accused, Jasvinder Singh was acquitted on the ground
of benefit of doubt. Piara Singh and Sarabjit Singh filed an appeal before the B
High Court and there was also a reference regarding confirmation of the
death sentence. The appeal preferred by them was dismissed and the High
Court confirmed the death sentence imposed on Piara Singh and Sarabjit
Singh. They filed an SLP registered as Special Leave Petition (Criminal) No.
275 of 1997 challenging their conviction and sentence. The Special Leave C
Petition was disposed of on 28.2.1997 with the following order :

"We have heard learned counsel for the parties at great length and
have also gone through the record submitted along with the appeal as
well as the judgments of the courts below. In our view, the judgment
and orders of the High Court require no inteference. The Special D
Leave Petition is therefore dismissed."

They also filed a Review Petition, which was dismissed.

When the Special Leave Petition (Criminal) preferred by Gurdev Singh
and Satnam Singh came up for consideration, the counsel brought to the E
attention of the Court the decision of this Court in Harbans Singh v. State of
Uttar Pradesh and Ors., [1982] 2 SCC 101 and prayed for recalling the order
of dismissal dated 28.2.1997 passed earlier in Special Leave Petition (Criminal)
No. 275 of 1997 which had been preferred by Piara Singh and Sarabjit Singh.
By order dated 18.3.2002, this Court directed that in view of the decision in
Harbans Singh 's case (supra), the order of dismissal dated 28.2.1997 in Special F
Leave Petition (Crl.) No. 275 of 1997 be recalled and leave was granted.
Simultaneously, this Court stayed the execution of death sentence on Piara
Singh and Sarabjit Singh. Subsequent to this order, the Registry numbered
their appeal as Criminal Appeal No. 393 of 2002 and posted the same to be
heard along with the present Criminal Appeal No. 392 of 2002. G
At the outset, we must say that the decision of this Court in Harbans
Singh's case (supra) does not lay down any rule that an Appeal/Special Leave
Petition already disposed of by this Court· is to be re-heard when an appeal
preferred by another set of accused involved in the same incident comes up
for consideration at a later stage. In Harbans Singh's case, four accused were H
86 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A found guilty of murder and other offences and they were sentenced to death.
The High Court confirmed the death sentence. After their conviction and
sentence, one of the convicts died and the other three convicts filed separate
special leave petitions before this Court. The first special leave petition when
came up for consideration, was dismissed and the death sentence imposed on
the convict was confirmed. In the second special leave petition filed by
B another convict which came up for consideration before a different Bench of
this Court, leave was granted and the death sentence was commuted to life
imprisonment. In the third petition preferred by yet another convict,'the death
sentence imposed on him was confirmed. His petition for mercy was dismissed
by the President of India. When the date of execution of death sentence was
C fixed, he filed a writ petition under Article 32 contending that his co-accused
escaped the death sentence, therefore, the death sentence imposed on him be
also commuted to life imprisonment. It is pertinent to note that this Court did
not commute the sentence of death imposed on him to life imprisonment and
observed that in the interest of comity between the powers of this Court and
the powers of the President of India it will be more in the fitness of things
D if the Court recommends to the President for commutation of death sentence
to life imprisonment in exercise of power under Article 72. It is also to be
noticed that the petitioner therein was tried along with three others and in the
case of one of his co-accused, the sentence of death was commuted to life
imprisonment.
E
In the present appeals, appellants Gurdev Singh and Satnam Singh
were not tried along with appellants Piara Singh and Sarabjit Singh. As
appellants Gurdev Singh and Satnam Singh were absconding, they could be
tried only subsequently in a separate trial. As the Special Leave Petition of
Piara Singh and Sarabjit Singh came to be finally disposed of on 28.2.1997
F and the convietion and sentence entered against them attained finality, we do
not think that it is just, proper and legal to hear the appeal and consider the
question involved therein on merits again. Therefore, the Criminal Appeal
No. 393 of 2002 (corresponding number assigned by the Registry to SLP
(Cr!.) No. 275 of 1997) is only to be dismissed and we do so and vacate the
G stay of execution of the death sentence imposed on the appellants therein.

In the Criminal Appeal No. 392 of 2002, the case of the prosecution is
that the appellants, Gurudev Singh and Satnam Singh, along with three other
accused went to the house of Smt. Swaran Kaur on 21.11.1991 at about 9.00
P.M. In the house of Smt. Swaran. Kaur, the marriage of her son, Angrez
H Singh was to be celebrated on the next day. A 'shamiana' had been erected
GURDEV SINGH v. STATE OF PUNJAB [BALA KRISHNAN, J.) 87

and the area was sufficiently lit by electric bulbs. Several relatives and family A
friends of Smt. Swaran Kaur had gathered in her house and a feast was going
on. It is the case of the prosecution that out of the five accused, three accused
scaled over the wall of 'kotha' and two of the accused remained at the gate.
Piara Singh was anned with a double barrel gun and Sarabjit Singh was
armed with a service rifle. Appellant Gurudev Singh was anned with an SLR B
and the second appellant, Satnam Singh and another accused Jasvinder Singh,
who stood at the gate, were also carrying fireanns. All the five ac9used then
started firing from their weapons and continued shooting for I 0-15 minutes.
PW-6, Swaran Kaur and her son Angrez Singh managed to hide themselves
behind a heap of firewood in the house. When all the five accused left the
house, they could see a ghastly scene where 13 persons were lying dead and C
eight others were found seriously injured. The further case of the prosecution
is that all the five accused, after leaving the house of PW-6, proceeded to the
house of PW-15, Sarabjit Singh. There also, they started firing as a result of
which Gurpal Singh and Sukhdev Singh, father and brother respectively of
PW-15 Sarabjit Singh died on the spot. The prosecution alleged that these
accused then went to two other places and killed two other persons, but the D
prosecution could not adduce any satisfactory evidence regarding those two
incidents.

PW-6 gave the First Information statement at about 11 P.M. on
21.11.199 l and the police arrested Piara Singh and Sarabjit Singh immediately E
after the incident. The dead bodies of victims [altogether 17] were sent for
post-mortem examination and it has been proved that all of them died of
firearm injuries. On the side of the prosecution, PW-6 Swaran Kaur, PW-7
Kashmir Kaur, PW-8 Baldev Singh and PW-9 Angrez Singh were examined
as eye-witnesses to prove the first incident where 13 persons died. PW-15,
Sarabjit Singh was examined as eye-witness to prove the second incident in F
which his father and brother were killed.

We have carefully examined the evidence adduced by the prosecution.
PW-7, Kashmir Kaur and PW-8 Baldev Singh were injured witnesses; sd
their presence at the scene of the crime cannot be doubted. PW-6, Swaran
Kaur is the mother of the groom and PW-9, Angrez Singh, was the groom G
himself for whose marriage-celebration the victims had gathered at the house
of PW-6. Therefore, the presence of PW-6 and PW-9 cannot at all be doubted.

On behalf of the appellants, the counsel, Shri Seeraj Bagga, strenuously
contended before us and pointed out various infirmities in the prosecution H
88 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A case. We do not, however, think that the minor infirmities pointed out, in any
way, would cast doubt on the prosecution case. For instance, the counsel
argued that PW-6 stated that she had given the F.I. statement on the next day
whereas the F.I. statement was recorded on the night of the occurrence. PW-
6 was examined in court after a long lapse of time and the inconsistency in
narrating the events by her subsequently may have been due to fading of
B memory and it cannot be considered a serious mistake. The counsel for the
appellants also contended that the FIR reached the Magistrate belatedly. Here
is a case where a serious crime had been committed and the dead bodies of
as many as 17 victims had to be taken care of and inquest and post-mortem
had to be conducted at the instance of the police. This must have caused few
C hours' delay in sending the FIR to the Magistrate. All the eye-witnesses
deposed in unmistakable terms that these appellants were present at the scene
of the crime and used firearms and they continuously went on firing on the
innocent victims for about l 0-15 minutes.

The prosecution also alleged that there was some motive on the part of
D Piara Singh to attack the members of the family of PW-6 Swaran Kaur. It is
alleged that one of the sons of PW-6, namely, Jagir Singh had an encounter
with Piara Singh and in that incident, one servant of Piara Singh had died.
It is alleged that Piara Singh thus nurtured an ill-will against the members of
the family of Jagir Singh. As regards the second incident in which Gurpal
E Singh and Sukhdev Singh died, no infirmity could be pointed out in the
testimony of PW-15 and the prosecution case. PW-15 deposed that accused
persons had shouted that they would teach the victims a lesson for helping
Jagir Singh and his family members.

It is proved beyond reasonable doubt that the appellants Gurudev Singh
p and Satnam Singh were responsible for causing the death of 15 persons,
besides causing grievous injuries to eight others. They have been rightly
convicted by the sessions court for the various offences charged against
them. It is contended on behalf of the appellants that the trial court had
pronounced the sentence on the same day on which the conviction was passed.
Hence, relying upon certain observations in the judgments of this Court in
G Muniappan v. State of Tamil Nadu, AIR (1981) SC 1220 andAllauddin Mian
and Ors. v. State of Bihar, AIR (1989) SC 1456 = [1989] 3 SCC 5, it was
urged that the obligation of the trial court under Section 235 (2) of the Code
of Criminal Procedure, 1973, was not properly discharged as the trial court
did not adjourn the hearing of the case for sentencing after the order of,
H conviction was pronounced.
GURDEV SINGH v. STATE OF PUNJAB [BALAKRISHNAN, J.] 89

In our view, the contention is entirely misplaced. As pointed out in A
Ramdeo Chauhan v. State of.Assam, [2001] 5 SCC 714, both the aforesaid
judgments were delivered prior to the addition of the third proviso to Section
309(2) of the Code of Criminal Procedure, 1973 by Amending Act 45 of
1978 which reads thus :

"Provided also that no adjournment shall be granted for the purpose B
only of enabling the accused person to show cause against the sentence
proposed to be imposed on him."

It was held that the mandate of the legislature is clear that no adjournment
can be granted for the purpose only of enabling the accused person to show .C
cause against the sentence proposed to be imposed upon him. Nonetheless,
the Court can in appropriate cases grant adjournment for the aforesaid purpose,
if the proposed sentence is a sentence of death. From the material on record,
it does not appear that any request was made to the learned Sessions Judge
for adjournment. In the circumstances, we see no substance in the contention
that the sentence imposed was vitiated for non-compliance with Section 235 D
(2) of the Code of Criminal Procedure, 1973.

The only question that remains is whether the appellants are liable to
be sentenced to the extreme penalty of capital punishment. The counsel for
the appellants brought to our notice a series of decisions rendered by this E
Court and beseeched for commutation of death sentence imposed upon the
appellants. The counsel also brought to our attention many errors committed
by the High Court by not properly adverting to the mitigating circumstances.
In fact, the High Court did not consider the various aspects to be taken into
account before awarding the extreme punishment of death penalty. The sessions
court considered the matter in some detail and held that appellants deserved F
death penalty. It was argued by the appellants' Counsel that the Court failed
to strike a balance between the aggravating and mitigating circumstances.
The counsel for the appellant contended that there are so many mitigating
circumstances, which should have been taken into consideration by the sessions
court as well as High Court. It is argued that the appellants Gurudev Singh G
and Satnam Singh were young at the time of the commission of the crime and
no motive whatsoever was proved against them and that the evidence would
only indicate that they followed the dictate of their father, who, in all
possibility, must have instigated them. It was submitted that the appellants
had no other criminal antecedents and there was nothing on record to show H
90 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A that the appellants would be a menace to the society or that they are beyond
the pale of any reformation.

After amendment of Criminal Procedure Code 1898 in 1974, there was
significant change in the legislative policy with regard to the sentence of
death or imprisonment for life provided for murder and certain other capital
B offences under the Indian Penal Code. As per the changed policy, when
conviction for an offence punishable with death or in the alternative with
imprisonment for life or imprisonment for a term of years is recorded, the
judgment should state reasons for the sentence awarded and in the case of
sentence of death, special reasons must be given. Therefore, as per Section
C 354(3) Cr.P.C., in every case where the court finds that the capital punishment
is the inevitable consequence, the court should give special reasons. The
Constitutional validity of death sentence was itself challenged in Bachan
Singh v. State of Punjab, (1980] 2 SCC 684. One of the grounds of attack.
was that Section 354(3) Cr.P.C. provides for imposition of death penalty in
D an arbitrary and whimsical manner inasmuch as it does not lay down any
rational principle or criteria for invoking the extreme penalty. The
Constitutional validity of the said Section was upheld and the Constitution
Bench stated that it is difficult to lay down a formula of universal application
when facts are bound to be different from case to case and it would frustrate
the very purpose of conferring a discretion on courts.
E
In Ediga Anamma v. State of Andhra Pradesh, AIR (1974) SC 799,
V.R. Krishna Iyer, J., speaking for the Bench, said :

" Weapons used and the manner of their use, horrendous features of
the crime and hapless, helpless state of the victim, and the like, steel
F the heart of the law for a sterner sentence."

But, later in Rajendra Prasad v. State of Uttar Pradesh ( 1979) 3 SCC
646, a 3-Judge Bench decision observed that the focus had shifted from
crime to criminal and the special reasons necessary for imposing death penalty
G must relate not to the crime as such but to the criminal. But this view was
overruled in Bachan Singh 's case (supra), in which it was held as under:

"As we read Sections 354(3) and 235(2) and other related provisions
of the Code of .1973, it is quite clear to us that for making the choice
of punishment or for ascertaining the existence or absence of "special
H reasons" in that context, the court must pay due regard both to the
GURDEV SINGH v. STATE OF PUNJAB [BALAKRISHNAN, J.] 91

crime and the criminal. What is the relative weight to be given to the A
aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not, these two
aspects are so intertwined that it is difficult to give a separate treatment
to each of them. This is so because 'style is the man'. In many cases,
the extremely cruel or beastly manner of the commission of murder
is itself a demonstrated index of the depraved character of the B
perpetrator. That is why, it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal in
two separate watertight compartments. In a sense, to kill is to be cruel
and therefore all murders are cruel. But such cruelty may vary in its
degree of culpability. And it is only when the culpability assumes the C
proportion of extreme depravity that "special reasons" can legitimately
be said to exist."

It was further held as under:

"It is, therefore, imperative to voice the concern that courts, aided by D
the broad illustrative guidelines indicated by us, will discharge the
onerous function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined in Section
354(3), viz., that for persons convicted of murder, life imprisonment
is the rule and the death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance of taking E
a life through law's instrumentality. That ought not to be done save
in the rarest of rare cases when the alternative option is unquestionably
foreclosed."

The consistent view of this Court in a series of rulings is to the
effect that no rigid formula or standards can be fixed and only a broad F
guideline consistent with the legislative policy indicated by the Legislature in
Section 354(3) of Cr.P.C. alone shall be considered for invoking the extreme
penalty of death sentence. A survey of some of the decisions of this Court
would give an idea as to how this Court viewed various circumstances, which
would warrant invocation of death penalty.

In Allauddin Mian and Ors. v. State of Bihar, [1989] 3 SCC. 5, a group
of six persons came armed with deadly weapons to the house of PW-6 and
two of them advanced menacingly towards him. On seeing them PW-6 ran
to the adjoining room. Accused I and 2 then killed the two daughters of PW-
6. The High Court confirmed the death sentence awarded to both of them by H
92 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A the trial court. This Court stated that unless the nature of the crime and the
circumstances of the offender reveal that the criminal is a menace to the
society and the sentence of life imprisonment would be altogether inadequate,
the court should ordinarily impose the lesser punishment and not the extreme
punishment of death which should be reserved for exceptional cases only and
B that in cases in which the crime is so brutal, diabolical and revolting as to
shock the collective conscience of the community, it would be permissible to
award the death sentence. The mere fact that infants are killed, without more,
is not sufficient to bring the case within the category of 'the rarest of rare'
cases. This Court commuted the death sentence imposed on the accused to
life imprisonment.
c
Janki Dass v. State (Delhi Administration), [1994] Supp. 3 SCC 143 is
the case of a person who was in serious penury and who found himself
unable to pay his debts. He committed the murder of his three children. He
was sentenced to death and his conviction was confirmed by the High Court.
Although the case was found to be so shocking to the conscience, this Court
D commuted the death penalty to life imprisonment stating that the convict
committed the offence in question not with the intention to commit the murder
of his own children, but only by way of deliverance from the day to day
strain of life, he being financially crippled.

In Sheikh lshaque and Ors. v. State of Bihar, [1995] 3 SCC 392, ten
E
persons came to the.house of the complainant during night armed with bombs
and firearms. The house was burned and three persons were burnt to death.
Four of the accused were sentenced to death by the trial court and the High
Court confirmed the same. This Court observed that as there was no evidence
as to which of the accused had sprinkled kerosene and set fire to the room,
F it is a mitigating circumstance while considering the question of sentence.
The fact that the accused, though armed with firearms, did not use the weapons
was also taken note of by this Court. It was also observed that there was no
evidence to show that the appellants knew or had reason to believe that there
were three persons inside the room when the same was set on fire.

G A. Devendran v. State of Tamil Nadu. [1997] 11 SCC 720 is a case of
triple murder. This Court held that the trial court was not justified in awarding
death sentence as the.accused had no pre-meditated plan to kill any person
and as the main object was to commit robbery.

In Kumudi Lal v. State of U.P., [1999] 4 SCC 108, the accused was
H
GURDEV SINGH v. STATE OF PUNJAB [BALAKRISHNAN, J.] 93

alleged to have raped and murdered a young girl aged 14 years. This Court A
held that in order to prevent her from raising shouts the appellant tied the
salwar around her neck which resulted in strangulation and her death. It was
not a fit case in which the extreme penalty of death sentence deserves to be
imposed on the accused.

In Om Prakash v. State of Haryana, [1999] 3 SCC 19, a dispute over B
a small house between two neighbours resulted in the murder of seven persons.
Death sentence was imposed on the accused by the trial court which was '
confirmed by the appellate court. This C9urt observed that the bitterness
increased to a boiling point and the agony suffered by the appellant and his
family members at the hands of the other party, and for not getting protection , C
from the police officers concerned or total inaction despite repeated written
prayers, goaded or compelled the accused to take law in his own hands which
culminated in the gruesome murders. The accused was a BSF Jawan aged 23
at the time of incident. This Court commuted the death penalty to imprisonment
for life.
D
In Mohd. Chaman v. State (NCT of Delhi), [2001] 2 SCC 28, the
accused was alleged to have committed rape on a girl aged 1-1/2 year and
cau\ed injuries which resulted in the death of the child. This Court held that
the crime committed by the accused was undoubtedly st!rious and heinous
and the conduct of the appellant was reprehensible. It showed a dirty and
perverted mind of a human being who had no control over his carnal desires. E
Treating the case on the touchstone of the guidelines laid down in Bachan
Singh 's case (supra) and in Machhi Singh and Ors. v. State of Punjab, [1983]
3 SCC 470, this Court substituted the sentence of life imprisonment for the
capital sentence.
F
In Lehna v. State of Haryana, [2002] 3 SCC 76, the accused had killed
his mother, brother and sister-in-law. He was sentenced to capital punishment.
This Court, applying the principle laid down in Machhi Singh 's case (supra),•
held that the appellant did not deserve the death penalty.

There are several other cases also where this Court commuted the death! G
sentence to imprisonment for life. But the facts and circumstances of many
of those cases are not parallel to the facts of the case on hand. Machhi
Singh 's case ( supra) reveals almost identical facts. There was a family feud,
between two sets of families and the accused, with a motive of reprisal,
committed 17 murders in five incidents occurring in the same night in quick
succession in five neighbouring villages. This Court elaborately considered H
94 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A the question of death sentence imposed on Machhi Singh, Kashmira Singh
and Jagir Singh and confirmed the same.
r
Coming back to the instant appeal, the counsel for the appellants pointed
out that there were some mitigating circumstances to award lesser sentence.
According to the counsel, there was no evidence on record to show that the
..
B appellants were involved in any other criminal case. Normally, the evidence
regarding the character of the accused will not be adduced by the prosecution.
It is true that there is no direct evidence regarding the motive except that
there was a suggestion that there was earlier a confrontation between Piara
Singh and a son of the complainant and in that incident one of the servants
c of Piara Singh died. Regarding that also, there is no direct evidence. The
aggravating circumstances of the case, however, are that the appellants, having
known that on the next day a marriage was to take place in the house of the
complainant and there would be lot of relatives present in her house, came
there on the evening of 21. l l. l 99 l when a feast was going on and started t<

D
firing on the innocent persons. Thirteen persons were killed on the spot and
eight others were seriously injured. The appellants tflereafter went to another
r
.;

place and killed the father and brother of PW-15. Out of the thirteen persons,
one of them was seven year old child, three others were at the threshold of
their lives. The post-mortem reports show their age ranged between 15 to 17
years. They had also their right to live in this world peaceably and these

E
appellants had no grievance or enmity against any one of them. In the course
of wide ranging submissions, the Counsel for the appellants laid stress on the
t
point that the underlying principle of our sentencing jurisprudence is
reformation and there is nothing in evidence to show that the appellants may
be a threat or menace to the society. It is true that we cannot say that they
would be further menace to the society or not as "we live as creatures saddled
F with an imperfect ability to predict future". Nevertheless, the law prescribes
for future, based upon its knowledge of past and is being forced to deal with
tomorrow's problems with yesterday's tools. The entire incident is extremely
revolting and shock the collective conscience of th~ community. The acts of
murder committed by the appellants are so gruesome, merciless and brutal
that the aggravating circumstances far outweigh the mitigating circumstances.
G Moreover, the two accused who were earlier tried are already sentenced to
death and their Special Leave Petition was finally disposed of by this Court.
r::
Having regard to these facts, we do not think that this is a case where
imprisonment for life is an adequate sentence to meet the ends of justice.
Though we have deep sympathy to the members of the family of the appellants, t-
H
GURDEV SINGH v. STA TE OF PUNJAB [BALAKRISHNAN, J.] 95

we are constrained to reach the inescapable conclusion that death sentence . A
imposed on the appellants be confinned. Accordingly, Criminal Appeal No.
392 of 2002, preferred by Gurdev Singh and Satnam Singh is dismissed and
the conviction of these appellants on various other counts is also con finned.
Order passed earlier by this Court staying the execution of the capital
punishment on Piara Singh and Sarabjit Singh is vacated.
B
K.K.T. Appeals dismissed.

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "murder"Sign in to search