Important Point
Where accused caused the death of seven persons of the same family with well though out premeditation, though the crime was gruesome yet circumstance of the case revealed it was a result of human mind going astray because of constant harassment to his family members by victims over a piece of disputed property, it was held it was not a rarest of the rare case to warrant death penalty especially it being not a crime committed because of lust for wealth of or women.

Headnote:Death sentence - Justifiability of-Dispute over a piece of land-Accused aged about 23 years serving in BSF-Shot dead 7 persons of same family-Death sentence awarded by trial Court and confirmed by High Court-Circumstances of Commission of Crime showed accused had been writing to police authorities repeatedly to protect his family members from attack of deceased who were trying to encroach his property and harassing his family members-Murder premediated and well through out-Though gruesome yet it is a result of human mind going astray because of constant harassment - Not a crime committed because lust for wealth or women-Mind of accused got derailed of track and went astray or beyond control because of extreme mental disturbances-On facts and circumstance he could not be considered as a menace to society-It is not a rarest of the rare cases-Death sentence altered into imprisonment for life.
       Held : It is true that Court must respond to the cry of the society and to settle what would be deterrent punishment for abonimable crime. It is equally true that large number of criminals go unpunished thereby increasing criminals in the society and law-loosing it deterrent effect. It is also truism as observed in the case of State of M.P. v. Shyamsunder Trivedi & Ors. reported in (1995) 4 SCC 262 at p. 273 that the exaggerated addherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. (Para 7)
       It is settled law that sentence of death should be reserved for rarest of the rare cases where sentence of imprisonment of life would be inadequate. In each case for finding out whether it is rarest of the rare cases, the Court also to balance the aggravating and mitigating circumstances. (Para 10)
       In the instant case from the evidence on record, it is apparent that the accused had committed gruesome murders of innocent persons. There is no doubt that it is pre-meditated and in a well though out manner. He was also a member of Para Military Force. As against this, it is also on record that he has not committed any offence on any previous occasion. At the relevant time in 1990 when the incident took place, he was 23 years old. In this background, if we refer to the evidence on record produced by the prosecution which is in the form of applications (letters) written by the appellant-accused to the authorities and to his brother Parma Nand, it would reveal the background in which accused appellant was under extreme mental disturbance which lead him commit serious crime. We may mention that these applications/letters are used by the prosecution for establishing the motive behind the crime but, at the same time, court overlooked the serious agony suffered by the accused which is revealed in applications. First application dated 22nd March, 1990 is written to the Deputy Commissioner, Rohtak for protection of his family members from the respondents and restrictioning them from encroaching on their plot. The next application dated 2.4.90 is written by the appellant to the Superintendent of Police (S.P.), Rohtak. In that application, appellant has requested S.P. Rohtak to take action against Chater Singh, Hawa Singh, Satbir Singh, Rajbir and Suresh. Lastly, we would refer to the letter dated 21st June, 1990 written to his brother Parma Nand which is reproduced in paragraph 61 of the Judgment rendered by the Learned Sessions Judge. The incident took place on 28th June, 1990 and the said letter was written a week prior to the occurrence. It is true that this letter reveals that appellant was drawing concrete action against the complainant party. But from the letter, it appears that appellant was deeply annoyed, may be because as stated in the letter “We had taken ourselves dead when they had attacked our women-folk and sister.” It also reveals that the act of the appellant was pre-planned. This letter no doubt reveals the mind of the appellant accused to the effect that he has decided to take revenge and was planning to take a concrete step in that behalf and that he was keeping it secret. In the said letter, he has further written that at best, it would take 15 days for him for taking action and “if we are to die, let this thing happen. If possible, give a promt reply and write which wall they were demolishing. Take heed of what I have written”. (Paras 10 to 13)
       Considering the aforesaid back-ground of the matter, the question would be whether the case of the appellant could be one of the “rarest of the rare” cases so that death sentence is required to be imposed. In our view, even though this is a gruesome act on the part of the appellant, yet it is a result of human mind going astray because of constant harassment of the family members of the appellant as narrated above. It could be termed as a case of retribution or act for taking revenge. No doubt, it would not be a justifiable act at all, but the accused was feeling morally justifiable on his part. Hence, it would be difficult to term it as the “rarest of the rare” cases. Further, this is not a crime committed because of lust for wealth or women, that is to say, murders are neither for money such as extortion, dacoity or robbery; nor even for lust and rape; it is not an act of anti-social element kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills number of persons; nor is it crime committed for power or political ambitions or part of organised criminal activities. It is a crime committed by the accused who had a cause to feel aggrieved for injustice meeted out to his family members at the hands of the family of the other party who according to him were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The bitterness increased to a boiling point and because of the agony suffered by him and his family members at the hands of the other party and for not getting protection 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 gruesome murders; may be that this mind got derailed of the track and went astray or beyond control because of extreme mental disturbances for the constant harassment and disputes. Further considering the facts and circumstances, it cannot be said that he would be a menance to the society; there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. He was working in BSF as a disciplined member of the armed forces aged about 23 at the relevant time, having no criminal antecedents. (Para 16)
       In the result, we are of the view that this case cannot be treated as one of the rarest of rare cases where lesser sentence of imprisonment of life would not at all be adequate. Hence, we alter the sentence of death penalty by awarding the sentence of imprisonment for life to the appellant. (Para 17)

Judgment

Shah, J.-Leave granted

2. At the time of admission of this matter, the Court had issued notice limited to the question of sentence only. Hence the question involved in this appeal is whether death sentence imposed requires to be confirmed on the ground that it is the rarest of the rare cases? Whether sentence of imprisonment for life would be inadequate? This is a case in which persistent disputes over a small house in a village between two neighbours and inaction by the authority (despite repeated prayers), led to this case of gruesome murders of seven persons, some totally innocent.

3. Before dealing with the contentions raised by the learned Counsel for the appellant, we would first refer to a few facts. It is a prosecution version that on 28th January, 1990. Chater Singh (P.W. 4) along with his wife deceased Smt. Daya Kaur was sleeping at his house and his brother Satbir, his wife Smt. Kamlesh and mother Smt. Khazani (deceased) were sleeping at the house of Satbir while inside the house of Satbir, Satbir and two male progeny of Chater Singh, Amar Kumar and Mohinder and one male progeny Surender of Hawa Singh (P.W. 5) were sleeping. Around 4.00 a.m., Chater Singh saw torch light emanating from the window of his house, upon which he and this wife got up from their cots and saw Parma Nand accused holding a torch in his hand and Ajit Singh accused (since dead) standing by his side holding a gun. Ajit Singh fired a shot from his gun, which hit the breast of Smt. Daya Kaur who fell down and met her doom. He raised an alarm, whereafter Ajit Singh accused entered his house from the rear door and fired at Chater Singh from his gun which hit the fingers of his right hand. Chater Singh caught hold the barrel of the gun but Ajit Singh got it freed and handed over his weapon to Om Prakash accused present in the court yard of the house. It is stated that one other person not known to Chater Singh was also present in the street. Thereafter all the four reached the house of Satbir followed by Chater Singh and Hawa Singh and there accused Om Prakash fired from his gun hitting Smt. Kamlesh wife of Satbir and Smt. Khazani who succumbed to the injuries. Thereafter, the assailants headed towards the house of Satbir where Chater Singh and Hawa Singh had already reached. At that place, Om Prakash fired indiscriminately from the gun and shot dead Satbir, Mohinder, Aman Kumar male progeny of Chater Singh and Surender son of Hawa Singh (P.W. 5). It is stated that after committing the gruesome murder of 7 persons accused Parma Nand made out that they had taken the revenge regarding the plot in dispute and dared anybody to confront them at the risk of elimination. All the accused thereafter fled away with their weapon of offence. After departure of the accused, many persons collected. Leaving Hawa Singh at the spot, Chater Singh rushed to the Police Station, Sampla and lodged F.I.R. at Ex. PJ at 7.30 a.m. During investigation, weapon of offence, that is, S.L.R. (self loading rifle) which the accused Om Prakash surrendered with the BSF authorities, where he remained posted, was collected and was sent to the Bureau, Forensic Science Lab. Madhuban alongwith empties and bullets lifted from the scene of occurrence. After completion of the investigation, accused were chargesheeted for the offence punishable under Sections 302, 307 read with Section 34 of IPC. Prior to trial, accused Ajit Singh had expired. In Sessions Case No. 341/90, the learned Sessions Judge, Rohtak by Judgment and Order dated 29th March, 1997, convicted the accused Om Prakash and Parmanand under Section 302/307/452/506 read with Section 34 IPC and under Section 25 of the Arms Act after appreciating the evidence in detail.

4. The learned Sessions Judge observed that mitigating circumstances culled out by the learned Defence Counsel cannot save the convict Om Prakash from the gallows, in case, the order of sentence is confirmed by the High Court because on that ill-fated morning o

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1999 Supreme(SC) 232

Cases Referred (4)