JUDGMENT

Thomas, J.-The carnage fuelled by the assassination of Indira Gandhi scored a heavy toll on the Sikh Community in Delhi and this case relates to a macabre which took place during then. Four sons of Harbai were roasted to death in front of her eyes on 2.11.1984 at Trilokpuri in Delhi. The present appellants - Jaggu and Mannu - were tried before a Sessions Court for offences under Section 302 and 396 read with Section 149 of the Indian Penal Code. The trial Court convicted them of those offences and sentenced them to death on the first count and to life imprisonment on the next. A Division Bench of the High Court of Delhi confirmed the conviction and sentence. The appellants filed this criminal appeal by special leave.

2. PW-1 Harbai was the wife of Hooda Singh. They were living in an apartment situated at Trilokpuri. They had 4 sons - Darshan Singh, Laxman Singh, Chaman Singh and Hoshiar Singh. Among them Darshan Singh was living with his wife Shantibai in a house situated adjacent to the residence of PW-1. The other three sons were living with their parents in the same house. Among them Laxman Singh was a married man, his wife being Nankibai (PW-2).

3. Following the assassination of Indira Gandhi riots took place in different parts of Delhi and its impact reached Trilokpuri on 1.11.1984. Fearing that such riots may destroy the members of the Sikh community PW-1 and the members of her family who belonged to that community kept themselves within the four walls of their house. It was on the morning of 2.11.1984 that the rioters broke into her house, armed with various substances such as iron rods, tyres, petrol containers etc. They looted the house first and then turned towards the male members of the family. All the sons of PW-1 were attacked with iron rods by the assailants. Later, they were dragged out, and were doused with petrol and then were set ablaze. Their father Hooda Singh - a blind old man - was spared. So it was the fate of the unfortunate mother to see every one of her four sons transforming into a life struggling inferno. As that sight was beyond the stamina of her nerves to withstand she fell in to a fit. Hooda Singh also fell unconscious presumably because he could perceive the gory scene with the help of his remaining senses of perception. All the sons of those ill-fated parents were ultimately charred to death.

4. Hooda Singh did not live long to tell the court what he perceived. But Harbai (PW-1) and her daughter-in-law Nankibai (PW-2) narrated in the trial Court the full details of the incident. That court accepted their testimony as true and the learned Sessions Judge found the case to be one of the "rarest of the rare cases" for visiting with the capital sentence and consequently he imposed death penalty on the appellants. The Division Bench of the High Court scrutinised the evidence afresh and concurred with the trial Court regarding reliability of their testimony. Even on the question of sentence learned Judges of the High Court did not find sufficient ground to dissent. The following are the reasons advanced by the Division Bench in that regard :

"As seen above, during the early days of November, 1984, the Delhi witnessed worst of the carnage, following the assassination of Mrs. Indira Gandhi, preceded by large scale riots which had broken out, then resulting into the killings of innocent persons irrespective of their age, middle aged or teenager of a particular community. The acts cannot be regarded but barbarism. For no fault of theirs innocent persons were done to death in a most cruel manner, namely pouring petrol and burning them alive. This can not be regarded as an ordinary routine case of murder, looting or burning. Members of the particular community were targeted, their properties looted and burnt and people done to death. The law and order machinery had completely broken down. Unprecedented lawlessness prevailed during those days and the miscreants had absolute free hand for indulging in c