1998 Supreme(SC) 1186

1998(9) Supreme 268
Supreme Court of India
(From Delhi High Court)
G.T. Nanavati, S. Rajendra Babu, JJ.
Kishori -Appellant
versus
State of Delhi -Respondent
Criminal Appeal No. 147 of 1998
With
Criminal Appeal No. 148 of 1998
Decided on 1-12-1998
Counsel for the Parties :
For the Appellant : Ashok Srivastava, Advocate.
For the Respondent : N.N. Goswami, Sr. Advocate, Rajeev Sharma and Ms. Anil Katiyar, Advocates.

Important point
Where during riot that broke out on the assassination of Mrs. Indira Gandhi, the accused as a member of the mob caused the murder of two sikhs, imposing capital sentence was held to be not warranted espe­cially when he was not proved to be leader of the mob or exhorted others to do particular acts.

Headnote:(i) Indian Penal Code, 1860-Sections 148 and 302 read with Section 149 - Riotous murder-Con­viction for-Riot on assassination of Mrs. Indira Gandhi-Appel­lant and two others charged with offence of mur­dering several sikhs -Trial Court believing evidence of eye witnesses convicting accused-Appellant punished with capital sentence and other two accused sentence to life imprisonment-High Court on reapprecia­tion of evidence confirming death sentence of appellant while acquit­ting other two accused-Warrants no interference-Eye witnesses, wives of victims categorically identifying appellant as member of mob and inflicting injuries on victims-Matters of details as to role of events that took place not much relevance-Conviction justified-Killings had taken place in a chain of events occurring one night and day pertaining to one incident-It could not be stated that appellant was indulging in criminal activities one after another-No evidence that appellant was leader of mob or he exhorted members thereof do any particular act-Death sentence not warranted -Sentence reduced into life impri­sonment. (Paras 3 to 6 and 13)

       (ii) Indian Penal Code, 1860-Section 302-Code of Criminal Procedure, 1973-Section 354-Death Sentence-Justifiability of-Appellant con­victed for offence of killing two sikh victims in a riot that broke out on assassination of Mrs. Indira Gandhi-Trial Court stating in several other murder charge also appellant came to be convicted and conviction was for the seventh time imposed death sentence - High Court confirmed death sentence stating that acts attributed to appel­lant affect basic feature of constitution viz. secularism-Wheth­er sustainable-Conviction justified-Sentence of death sentence not warranted-Accused came to be acquitted in four murder charges and thus trial Court’s basis for imposing death sentence does not sur­vive-When normal life breaks down and groups of people berserk loos­ing balance of mind, ideals of constitution should be upheld or fol­lowed may not appeal to them-Killings had taken place in a chain of events occurring one night and day pertaining to one incident-It cannot be said that appellant was indulging in criminal activities one after another-Appellant was not leader of mob-Circumstance of case does not warrant death sentence-Con­viction altered into life impris­on­ment.

       Held : The law is well settled by reason of the decisions of this Court as to the circumstances in which capital punishment can be imposed. It is held therein that capital punishment can be imposed in the rarest of the rare cases and if there are any aggravating circumstances such as the accused having any criminal record is the past; the manner of committing the crime; delay in imposing the sentence and so on. In the present case, the prosecution case, as unfolded before the court, indicates that the riot in Delhi broke out as a result of the death of Smt. Gandhi and her death appears to be the symbol or web around which the violent emotions were released. The death of Smt. Gandhi became a powerful symbolic image as a result of which the crowds were perpe­trating violence in the height of frenzy. It is common experience that when people congregate in crowds normal defenses are lowered so that the crowd instinct assaults on the sense of individuality or tran­scending one’s individual boundaries by offering a release from inhi­bitions from personal doubts and anxiety. In such a situation, one can well imagine that a member of such a group loses one’s self and the normal standard or sense of judgment and reality. The primary motivational factor in the assembly of a violent mob may result in murder of several persons. Experts in criminology often express that when there is a collective action, as in the case of a mob, there is a diminished individual responsibility unless there are special circum­stances to indicate that a particular individual had acted with any pre-determination such as by use of a weapon not normally found. If, however, a member of such a crowd picks up an article or a weapon which is close by and joins the mob, either on his own volition or at the instigation of the mob responding to the exhortation of the mob playing no role of leadership, we may very well say that such a person did not intend to commit all the acts which a mob would commit left to himself, but did so under the influence of collective fury. All the witnesses in this case speak that there was a mob attack resulting in the death of the three persons. Though the appellant is stated to be responsible for inflicting certain knife injuries, yet it is not clear whether those injuries of themselves would have been sufficient to result in the death of the deceased. In the absence of any medical evidence in these cases it has become very difficult to draw any inference as to the injuries inflicted by the appellant. We are con­scious of the fact that when an accused person is charged with an offence not only under Section 302 IPC but also read with Section 34 IPC or Section 149 IPC the culpability of such an accused resulting in the death of the person will not be less than that of homicide amount­ing to murder. But what we are weighing now is whether such culpabili­ty is of such a nature which should result in the capital punishment to the accused. (Para 9)

       The trial Court is of the view that the appellant before us de­serves death sentence in this case as he has been convicted for mur­ders for the seventh time and he had killed innumerable number of sikhs in a brutal manner. While affirming this sentence, the High Court took note of the fact that, though there has been long lapse of time between the date of commission of the offence and conviction of the appellant, the acts attributed to the appellant affect the basic feature of our Constitution, viz., secularism; that the appellant indulged in riots resulting in killing of innocent persons looting and burning their properties would send shivers to any person; that mob caused havoc of which the appellant was a member; that no leniency, mercy or sympathy should be shown. Relying upon the decision of this Court in Surja Ram v. State of Rajasthan, 1997 Cr.L.J. 51, the High Court opined that the court has also to keep in view the society’s reasonable expecta­tion for appropriate deterrent punishment commensurate with the gravity of the offence, the public abhorrence for the heinous crime committed by the appellant and thus the High Court concluded that this was one of the rarest of the rare cases where such sentence should be imposed. (Para 10)

       Though the appellant had been charged with offences in seven cases and he had been convicted in all those cases, on appeal he had been acquitted in four cases and it is only in three cases his conviction has been affirmed, of them two are before us in appeal by special leave. Therefore, the basis upon which the Sessions Court concluded that he had been convicted in a number of cases, thereby indicating that the appellant is a hard boiled criminal, may not stand to reason. On the other hand, what could be seen is all these killings had taken place in a chain of events occurring on one night and day and, there­fore, pertained to one incident. Looked from that angle, it could not be stated that the appellant was indulging in criminal activities one after another. None of the witnesses has stated that Kishori, the appellant, was the leader of the mob or he exhorted the members there­of to do any particular act. His role appears was only as a member of the mob. It is no doubt true that the high ideals of the Constitution have to be borne in mind, but when normal life breaks down and groups of people go berserk losing balance of mind, the rationale that the ideals of the Constitution should be upheld or followed, may not appeal to them in such circumstances, nor can we expect such loose heterogeneous group of persons like a mob to be alive to such high ideals. Therefore, to import the ideas of idealism to a mob in such a situation may not be realistic. It is no doubt true that courts must be alive and in tune with the notions prevalent in the society and punishment imposed upon an accused must be commensurate with the heinousness of the crime. We have elaborated earlier in the course of our judgment as to how mob psychology works and it is very diffi­cult to gauge or assess what the notions of the society are in a given situation. There may be one section of the society which may cry for a very deterrent sentence while another section of the society may exhort upon the court to be lenient in the matter. To gauge such notions is to rely upon highly slippery imponderables and, in this case, we cannot be definite about the views of the society. We may notice that the acts attributed to the mob of which the appellant was a member at the relevant time cannot be stated to be a result of any organized systematic activity leading to genocide. Perhaps, we can visualise that to the extent there was unlawful assem­bly and to the extent that the mob wanted to teach stern lesson to the sikhs there was some organisation; but in that design that they did not consider that women and children should be annihilated which is a redeeming feature. When an amorphous group of persons come together it cannot be said that they indulge in any systematic or organized activity. Such group may indulge in activities and may remain cohesive only for a temporary period and thereafter would disintegrate. The acts of the mob of which the appellant was a member cannot be stated to be the result of any organisation or any group indulging in violent activities formed with any purpose or scheme so as to call an orga­nised activity. In that sense we may say that the acts of the mob of which the appellant was a member was only the result of a temporary frenzy which we have discussed earlier. He did not play the role of a leader of the mob as noticed earlier. On the totality of the circumstances, we are of the opinion that this is not a case where courts below should have imposed a capital punishment. While affirming the conviction of the appellant on the charges framed against him, we reduce the sentence from that of capi­tal punishment to life imprisonment. (Paras 11 to 14)