Important point
Where appellant accused with co-accused killed 13 members of his family including small kids who were asleep for a flimsy reason, death penalty awarded by trial Court and upheld by High Court was not liable to be commuted to life imprisonment.

Headnote:(i) Indian Penal Code, 1860—Section 302—Appellant convicted for murder of thirteen members of his family while they were asleep with co-accused who died during trial—Appellant and co-accused assaulted victims by sword—Family was suspecting unnatural relationship between wife of appellant and his friend co-accused which was not liked by two accused—In High Court in appeal there was difference of opinion between two Judges; one Judge was for dismissal of appeal and to maintain conviction and deathsentence and other was for acquittal—Matter was referred to third Judge who upheld conviction and death sentence—Appeal—Contention that eye witnesses were near relation and if deceased family members had raised alarm by shouting neighbours would have collected—Presence of witnesses, near relations, could not be doubted and was natural—Residential house was in an area having large farm houses and there was no question of neighbours hearing shouts and coming for help—No substance in contention as to identity of accused—It was moon lit night and accused were known persons—Conviction was not liable to be interfered with.
       Held : The incident took place in the family house of the appellant. All the deceased persons were immediate family of the accused being his father, brothers, their wives and their children. The surviving eye-witnesses are one brother and two children of the brothers who were killed. Their presence in the house is natural. The entire family was sleeping in the family house at that hour of the night. The family had been taken unawares. The accused persons were wielding swords in their hands which they used to kill the family members in an indiscriminate attack on them. The medical report about nature of injuries supports attack by swords. The residential house was in an area having large farm houses. This is the tarai area as it is called in the State of Uttar Pradesh. It has very fertile land. The uprooted farmers of Punjab, were allotted lands there. They settled there and converted the entire area into a very flourishing agricultural economy. There are big farms and residential portion in each farm is located at quite a distance from each other. Therefore, there is no question of neighbours hearing the shouts and coming for help. Most of the family members who have been killed were very young children, below ten years of age. What resistance they could offer? The brothers were sleeping at separate places and were separately attacked and killed. There was no time for the family members to group together to ward off the attack. Another argument being raised is that it was dead of night and it was difficult to identify the persons who were attacking. This argument again is totally misconceived. As already noticed, it was a moonlit night. Secondly, the accused were known persons, being members of the family. The accused remained on the scene of crime for a long time killing the victims one after the other. Therefore, there could be no doubt whatsoever about their identity to the eye-witnesses. (Para 5)
       In cross-examination it has not been suggested to the witness that he was not present at the scene of occurrence. In normal course he was bound to be present in the house at the time of the incident. The witness had stated that he had jumped down and reached the sugarcane field from where he could see the accused Gurmeet Singh on the roof of the house killing family members. He had also seen Lakha Singh chasing his mother and killing her at the back of the house. There appears to be no cogent reason why he should be deposing falsely against his own uncle unless he had actually seen his uncle killing the family members. The evidence of the eye-witnesses corroborates each other. Therefore, there is no reason to doubt the same. In the face of such clear cut evidence of the eye-witnesses there is hardly any scope for the argument regarding sanctity of the FIR. The credibility of the eye-witness account of the incident is sought to be attacked on the ground that it was late at night and in the darkness it would have been difficult to identify the accused persons. On this we have already observed that all the eye-witnesses are unanimous that it was a moonlit night. The accused persons were familiar faces, one of them being member of the family and staying with the family. Further the accused remained on the scene of the crime for a long time, therefore, there could be no doubt about eye-witnesses being able to identify them correctly. About the crime committed inside the room on the ground floor, it is in evidence that there was a lamp lighted in the room which provided sufficient light to identify the attackers. In view of this convincing evidence on record we are fully in agreement with the findings reached by the two judges of the High Court who have upheld the conviction and sentence of the accused. Accordingly we find no merit in this appeal and the same is dismissed. (Para 8)
       (ii) Indian Penal Code, 1860—Section 302—Death sentence—Appellant accused killed thirteen members of his family including his brothers their wives and children—Sustainability—Delay in execution of sentence—Conviction and sentence was upheld by High Court on 29-2-1996 and warrant for execution of sentence was issued on 20-3-1996—Appellant addressed letter to Registrar of High Court for grant of certificate to appeal to Supreme Court—Matter was delayed in High Court till August 2003—Time for consideration of delay in execution of death sentence started to run only after disposal of appeal by Supreme Court—Sentence was not liable to be substituted on this ground of delay and was liable to be upheld.
       Held : We have carefully considered all the relevant facts of the case. The appellant in this case, along with the co-accused, killed as many as 13 persons for a flimsy reason. All the victims were closely related to the appellant and they were killed in the most dastardly manner. Most of the victims were sleeping when they were attacked. The appellant did not spare even the small kids with whom he had apparently no enmity. The appellant did not have even a grain of mercy or human kindness in his heart. Considering all these aspects, we do not think that this is a fit case where the death penalty is to be commuted to life imprisonment. (Para 9)
       Before admitting the appeal, this Court tried to ascertain the reasons for the delay. The third Judge gave his opinion for conviction and confirmation of death sentence on 29th February, 1996. On 20th March, 1996 the warrant was issued for execution of the death sentence. The warrant was received in the Naini Central Jail at Allahabad where the accused was detained on 23rd March, 1996. On 24th March, 1996 the appellant addressed a letter to the Registrar of the Allahabad High Court for grant of certificate to appeal to the Supreme Court under Article 134A of the Constitution of India. This was as per Section 415(2) of the Code of Criminal Procedure. This application of the convict was forwarded to the Registrar of the High Court on 25th March, 1996. Several reminders were sent to the Registrar of the High Court by Senior Superintendent, Central Jail, Naini, however, there was no response from the High Court. On 25th August, 2003 the accused preferred a special leave petition to this Court. This Court while issuing notice on 5th December, 2003 called upon the jail authorities to state why the sentence was not carried out. This Court stayed the execution. From the report submitted by the High Court it appears that lapse took place in the High Court for which the High Court has taken action against the erring officers. (Para 10)
       Applying the ratio of judgment of this Court, it is to be seen that the appeal filed by the appellant in this Court is being simultaneously disposed of today. Therefore, the time for consideration of delay in execution of death sentence starts to run now and it cannot be said to be a case of delay in execution of death sentence requiring death sentence being substituted by the sentence of life imprisonment for reason of delay in execution of death sentence. In the facts of the present case we are unable to accept this request made on behalf of the appellant. The same is accordingly rejected. (Para 13)

Judgment

Arun Kumar, J.—The appellant has preferred this appeal against the judgment of the Allahabad High Court upholding his conviction and sentence. The sessions court while convicting the appellant under Section 302 I.P.C., had awarded death sentence. The case against the appellant is that he alongwith his companion Lakha Singh (who died during the course of trial proceedings) committed the murder of thirteen members of his family in the night of 17th August, 1986. The petitioner was living jointly with several other members of his family in a big house called in local language as ‘jhalla’. Thirteen persons of the family who were killed on that fateful night were father of the appellant, his two real elder brothers, wives of both the brothers, four daughters and two sons of one of the brothers who was murdered and two sons of another slain brother. The only members of the family who survived the murderous attack are one brother of the appellant namely Balwinder, his wife, who was away to her parents’ house and was, therefore, not present in the house on the date of occurrence and some children. As far as appellant’s brother Man Singh is concerned, his almost entire family was finished as he and his wife and four daughters and two sons were subjected to the murderous attack resulting in their deaths. Family of another brother Karam Singh was also finished as both the husband and wife were killed alongwith two young sons aged 9 years and 4 years at the time of the incident. Only one son of Karam Singh who is named Paramjeet Singh survived. He is P.W.2 six children of Man Singh who were killed were between the ages of 3 to 9 years. Even two of the surviving members of the family who appeared as P.W.1 and P.W.3, received injuries in the attack.

2. As per the prosecution case both the accused came with swords and started shouting and indiscriminately attacking the members of the family who were asleep at various places in the house. It is in evidence that it was a moonlit night. One Jawahar had accompanied the accused. He was a servant. No particular role was assigned to Jawahar except that he was throwing brickbats on the terrace where some of the members of the family were sleeping and was shouting at them to come down. Jawahar was acquitted by the trial court and the State did not appeal against his acquittal. The other accused Lakha Singh died during trial. The trial Court convicted the appellant for offence under Section 302 IPC and sentenced him to death. Since it was a case of death sentence, reference was made to the High Court for confirmation of sentence. The appellant also filed appeal against his conviction before the High Court.

3. The case of the prosecution is that the appellant had been married about one year prior to the date of incident. He was part of the family and was staying together with other members in the same house. The entire family was joint. The family was suspecting unnatural relationship between his newly married wife and his friend Lakha Singh, co-accused. Lakha Singh used to visit her very often and even stayed with her. The relationship between the two was felt to be unnatural. The family, therefore, was objecting to Lakha Singh’s visit and presence in the house which was not liked by the appellant as also by Lakha Singh. Therefore, they both decided to finish the entire family and in furtherance of this common intention they came with swords in their hands on the fateful night and started the murderous attack on family members. They did not spare even the father of the appellant Nazir Singh who was sleeping at a distance near the tubewell and to finish him the accused had to go there. Other family members were sleeping in the house at different places. The family members started shouting and running here and there to save themselves. But the two accused having swords in their hands attacked whosoever was within their reach. The wife of one of the brothers tried to escape from the back door into

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2005 Supreme(SC) 1255

Important pointWhere appellant accused with co-accused killed 13 members of his family including small kids who were asleep for a flimsy reason, death penalty awarded by trial Court and upheld by High Court was not liable to be commuted to life imprisonment.

Cases Referred (3)

Important point
Where appellant accused with co-accused killed 13 members of his family including small kids who were asleep for a flimsy reason, death penalty awarded by trial Court and upheld by High Court was not liable to be commuted to life imprisonment.