IMPORTANT POINT
Where murder was committed during riot that errupted in the wake of assassination of Mrs. Indira Gandhi, it was held that the case could not be held to be a rarest of rare cases so as to award death sentence and therefore death sentence was altered into life imprisonment.

JUDGMENT

D.P. Mohapatra, J.-Having been sentenced to death and ordered to be hanged by neck till death by the trial Court and confirmed by the High Court of Delhi, the appellant Kishori filed the Special Leave Petition seeking leave of this Court to challenge the judgment of the High Court. By order dated 27.9.1999 this Court issued notice to the respondents and stayed execution of the death penalty until the disposal of the case.

2. Leave granted.

3. The fact situation of the case leading to the present proceeding may be shortly stated thus :

Immediately following the assassination of Mrs. Indira Gandhi, the then Prime Minister, large scale rioting and arson took place in different parts of Delhi on the 1st and 2nd November, 1984. Many persons, young, old and children belonging to Sikh community were mercilessly killed. The incident in the present case took place in Block No. 30, 32 and 34 of Trilok Puri on 1.11.1984. Amongst the large number of persons killed during the riots were Darshan Singh aged 24 years, Aman Singh aged 22 years and Nirmal Singh aged 18 years, related as brothers and one Kirpal Singh brother of Mansa Singh. Many houses were gutted and many persons were burnt alive in the area. Subsequently on the intervention of the police and other authorities surviving members of the families affected by the riots were removed to relief camps.

4. On 17.11.84 the statement of Mansa Singh was recorded in the relief camp on the basis of which FIR No. 426/84 relating to the incident in the present case was registered. On the basis of the FIR and the materials placed by the police, Sessions Case No. 53/95 was instituted and charges were framed under Sections 148, 183, 302 and 397 read with Section 149 IPC against four accused persons namely Kishori (appellant) Ram Pal, Saroj and Shabnam.

5. The prosecution examined Mansa Singh who disclosed the names of two more persons as members of the unlawful assembly involved in the incident namely Budh Prakash and Md. Abbas. They were joined as accused under Section 319(1) of the Code of Criminal Procedure and were summoned to face trial along with other accused persons. On completion of the trial the Additional Sessions Judge, Delhi on appreciation of the evidence found Kishori, Dr. Budh Prakash and Mohammad Abbas guilty of the offences charged and convicted each of them and sentenced each of them under Section 148 IPC to undergo Rigorous imprisonment (RI) for 2 years, under Section 188 IPC to RI for 6 months, under Section 397 read with Section 149 IPC to RI for 10 years and a fine of Rs. 20,000 in default to undergo RI for another two years, and under Section 302 read with Section 149 IPC to the sentence of death and a fine of Rs. 30,000 in default to RI for 2 years more. All the three convicts were ordered to be hanged by neck till their death. All the substantive sentences were made to run concurrently. All the convicts filed appeals before the High Court challenging the judgment of the trial Court.

6. The High Court on perusal of the records and on consideration of the contentions raised on behalf of the parties allowed the appeals filed by Dr. B.P. Kashyap alias Dr. Lamboo and Mohammad Abbas, set aside the order of conviction and sentence and acquitted them of the charges. The High Court confirmed the order of conviction and sentence passed against the appellant Kishori. The operative portion of the judgment reads as follows:

"The crime in the present case qua appellant Kishori falls in the category of rarest of rare cases and the sentence has to be commensurate with the degree/gravity of the offence so that a required message is sent.

In the above view of the matter, having regard to the evidence as above, in our view the conviction and death sentence imposed by the trial Court on Kishori son of Hoshiar Singh (appellant in Crl.A.No. 313/98) deserves to be confirmed under Section 366 of the Code whereas the conviction and sentence of appellants Dr. Budh Prakash Kashyap @ Dr.