GURVAIL SINGH @ GALA Vs STATE OF PUNJAB
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-001055-001055 / 2006
Diary number: 25382 / 2006
Advocates: RISHI MALHOTRA Vs
KULDIP SINGH
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1055 OF 2006
Gurvail Singh @ Gala & Another .. Appellants
Versus
State of Punjab .. Respondent
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. This criminal appeal arises out of the judgment dated
22.9.2006 passed by the High Court of Punjab and Haryana in
Criminal Appeal No. 890-DB of 2005 and Murder Reference No.
10 of 2005. The High Court dismissed the appeal of the
accused persons and also reference was confirmed.
2. The appellants, along with two others, were tried for an
offence under Section 302 read with Section 34 IPC for murder
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of one Kulwant Singh, his two sons – Gurwinder Singh and
Davinder Singh and his wife – Sarabjit Kaur on 21.8.2000 at
about 1.30 am and were convicted for murder and awarded
death sentence.
3. The prosecution case, briefly stated, is as follows:
Balwant Singh and Jaswant Singh are two sons of Sharam
Singh (PW 1). Both Balwant Singh and Jaswant Singh died prior
to the date of the incident on 21.8.2000. Sharam Singh’s third
son Kulwant Singh had two sons – Gurwinder Singh and
Davinder Singh. Sarabjit Kaur was his wife. PW1 (Sharam
Singh) had 8 acres of land at Village Bhittewad, District
Amritsar, which was mutated in his name. In the family
partition, that 8 acres of land was divided into four shares, i.e.
PW1 gave 2 acres of land each to his sons and wife and 2 acres
of land was retained by him. 2nd appellant Jaj Singh and his
brother Satnam Singh – accused and his mother Amarjit Kaur –
accused, were pressurising on PW1 to get the land transferred
in their names in the Revenue record. PW1 wanted them to
spend the money for mutation, which was not done. There
were frequent quarrels between PW1, 2nd appellant and Amarjit
Kaur on that. They nurtured a feeling that PW1, under the
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influence of his son Kulwant Singh, would not mutate their
shares in their names. About 8 to 9 days prior to the incident,
2nd appellant, Satnam Singh and 1st appellant Gurvail Singh
went to the house of PW1and threatened him that in case he
did not give their share in the land and mutated in their names,
they would kill him and his son Kulwant Singh. On 20.8.2000,
the appellants and other accused persons were found sitting on
a cot outside the house of PW1, threatening PW1 and Kulwant
Singh that they would not be spared, since the properties were
not mutated in their names.
4. PW1, on the intervening night of 20-21.8.2000, was
sleeping in the drawing room of his house and Kulwant Singh,
his wife Sarabjir Kaur and two sons Gurwinder Singh and
Davinder Singh were sleeping in the courtyard. At about 1-1.30
a.m. on 21.8.2000, PW1 heard somebody knocking at the door
of his house and he saw through the window the appellants,
Satnam Singh and Amarjit Kaur. 1st appellant was carrying
Toka, 2nd appellant was armed with Datar and Amarjit Kaur was
carrying Kirpan. 2nd appellant Jaj Singh opened the attack and
gave Datar blow to Kulwant Singh and his brother Satnam
Singh and inflicted Kirpan blows on Sarabjit Kaur. 1st appellant
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Gurvail Singh, who was armed with Toka, starting assaulting
Gurwinder Singh and Davinder Singh. PW1 tried to intervene
and avoid the incident and raised hue and cry, which attracted
Dalbag Singh and he opened the door of the Baithak room in
which PW1 was kept locked. Due to this incident, Kulwant
Singh, his wife Sarabjit Kaur and two sons Gurwinder Singh and
Davinder Singh were murdered.
5. PW1 gave the first information statement to PW7, SHO,
Police at Police Station Raja Sansi. The statement was
recorded in the morning at about 8.00 am. The formal FIR was
recorded at about 9.00 am under Section 302 read with Section
34 IPC at Police Station Raja Sansi, Amritsar. S.I. Mandip
Singh, PW7, took up the investigation. The inquest report of all
the four dead bodies was prepared and the bodies were sent
for post-mortem. The appellants Gurvail Singh and Jaj Singh
were arrested on 25.8.2000 and 5.9.2001 respectively.
Satnam Singh was arrested on 25.8.2000 and Amarjit Kaur on
26.8.2000. All the accused were charged for offence under
Section 302 read with Section 34 IPC.
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6. Dr. Gurmanjit Rai, PW2 conducted the autopsy on the
dead body of Kulwant Singh on 21.8.2000. According to him,
all the injuries were ante-mortem in nature and the cause of
death of Kulwant Singh was severance of neck structure.
According to him, injury no. 2 sustained by Kulwant Singh was
sufficient for causing death in the ordinary course of nature.
Dr. Gurmanjit Rai also conducted the post-mortem on the dead
body of Sarabjit Singh on the same day and opined that the
cause of death was severance of neck structure and injury no. 2
was sufficient for causing death in the ordinary course of
nature. Dr. Amarjit Singh PW9 conducted the autopsy on the
dead bodies of Gurwinder Singh and Davinder Singh and opined
that the death was due to severance of neck structure, which
was sufficient to cause death in the ordinary course of nature.
On the side of the prosecution, PW1 to PW10 were
examined and for the defence DW1 to DW6 were examined.
7. The trial Court, after considering all the oral and
documentary evidence, found all the accused guilty under
Section 302 read with Section 34 IPC. The trial Court noticed
that Satnam Singh was below 18 years of age and was Juvenile
and hence he was sent to the Juvenile Justice Board for passing
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the necessary orders in accordance with the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000. So
far as Amarjit Kaur is concerned, the Court on evidence found
that she had played a prominent role and hence was awarded
life imprisonment and a fine of Rs.2,000/- under Section 302
IPC for each of the murders and, in default of payment of fine,
to further undergo one year RI and all the sentences were
directed to run concurrently. So far as Gurvail Singh (1st
appellant) and Jaj Singh (2nd appellant) are concerned, the trial
Court took the view that it is they who had mercilessly
murdered Kulwant Singh and also Gurwinder Singh and
Davinder Singh. The trial Court found no mitigating factors in
their favour and held that the case would fall in the category of
“rarest of rare cases”. Consequently, they were convicted and
awarded death sentence.
8. Both Gurvail Singh and Satnam Singh filed appeals before
the High Court of Punjab and Haryana, which were heard along
Murder Reference No. 10 of 2005 and the High Court also
concurred with the views of the trial Court and took the view
that it was a fit case where the death sentence is the adequate
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punishment, since it falls within the category of “rarest of rare
cases”, against which this appeal has been preferred.
9. Shri Rishi Malhotra, learned counsel appearing on behalf
of 1st appellant and Shri Tara Chandra Sharma, learned counsel
appearing on behalf of 2nd appellant, confined their arguments
more on the sentence, rather than on the findings recorded by
the Courts below on conviction, in our view rightly. We have
gone through the entire evidence, oral and documentary and
we are of the considered opinion, that no grounds have been
made out to upset the well considered judgment of the trial
court as well as that of the High Court. Learned counsel, at
length, placed before us the various mitigating circumstances
which, according to them, were not properly addressed either
by the trial Court or the High Court and wrongly awarded the
death sentence to both the appellants treating the case as
“rarest of rare cases”. The appellant was arrested on
25.8.2000 and, since then, he is in jail and he was about 34
years of age on the date of incident and is married and has four
children. 2nd appellant was aged 22 years at the time of
incident. Looking to the age of the appellants, learned counsel
submitted that the possibility of their reformation and
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rehabilitation cannot be ruled out. Further, it is also pointed
out that the antecedents of the appellants are unblemished and
they had not indulged in any criminal activities and it was
property dispute which culminated in the death of few persons.
Learned counsels pointed out that since they had already
undergone sufficient number of years in jail, they may be set
free. Learned counsels also placed reliance on the judgments
of this Court in Bachan Singh v. State of Punjab (1980) 2
SCC 684, Bachitar Singh and Another v. State of Punjab
(2002) 8 SCC 125, Prakash Dhawal Khairner (Patel) v.
State of Maharashtra (2002) 2 SCC 35, Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009) 6
SCC 498, Ramesh and Others v. State of Rajasthan (2011)
3 SCC 685, Sandeep v. State of U.P. (2012) 6 SCC 107 etc.
10. Shri Jayant K. Sud, learned Additional Advocate General,
State of Punjab, appearing on behalf of the State, on the other
hand, submitted that the appellants deserve no sympathy,
since they were instrumental for the death of four persons –
Kulwant Singh, his wife Sarabjit Kaur and two sons Gurwinder
Singh and Davinder Singh. Shri Sud submitted that the
appellants had wiped off the entire family in the presence of
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PW1 and, therefore, the appellants deserve no sympathy and
the case clearly calls for extreme penalty of capital
punishment. Shri Sud also submitted that the murder was
committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and
extreme indication of the community, and hence appellants
deserve no sympathy. Reference was also made to the
judgment of this Court in Machhi Singh v. State of Punjab
(1983) 3 SCC 470 and submitted that none of the mitigating
circumstances laid down by the Court would come to the
rescue of the appellants so as to escape them from capital
punishment.
11. This Court has recently in Sangeet & Another v. State
of Haryana (2012) 11 SCALE 140 (in which one of us – K. S.
Radhakrishnan - was also a member) elaborately discussed the
principles which have to be applied in a case when the Court is
called upon to determine whether the case will fall under the
category of “rarest of rare cases” or not. The issue of
aggravating and mitigating circumstances has been elaborately
dealt with by this Court in para 27 of that judgment. This
Court noticed that the legislative change and Bachan Singh
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discarding proposition (iv)(a) of Jagmohan Singh v. State of
U.P. (1973) 1 SCC 20, Machhi Singh revived the “balancing”
of aggravating and mitigating circumstances through a balance
sheet theory. In doing so, it sought to compare aggravating
circumstances pertaining to a crime with the mitigating
circumstances pertaining to a criminal. This Court held that
these are completely distinct and different elements and
cannot be compared with one another and a balance sheet
cannot be drawn up of two distinct and different constituents of
an incident. Reference was also made to the judgment of this
Court in Swami Shraddananda (2) v. State of Karnataka
(2008) 13 SCC 767, and this Court opined that not only does
the aggravating and mitigating circumstances approach need a
fresh look but the necessity of adopting this approach also
needs a fresh look in the light of the conclusions in Bachan
Singh. This Court held that even though Bachan Singh
intended “principled sentencing”, sentencing has now really
become judge-centric as highlighted in Swamy
Shraddananda and Bariyar. The ratio of crime and criminal
has also been elaborately dealt with in Sangeet, so also the
standardization and categorization of crimes. This Court
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noticed that despite Bachan Singh, the particular crime
continues to play any more important role than “crime and
criminal”.
12. This Court in Sangeet noticed that the circumstances of
criminal referred to in Bachan Singh appear to have taken a
bit of back seat in the sentencing process and took the view, as
already indicated, balancing test is not the correct test in
deciding whether the capital punishment be awarded or not.
We may, in this case, go a little further and decide what will be
the test that we can apply in a case where death sentence is
proposed.
13. We notice that, so far as this case is concerned, appellants
do not deserve death sentence. Some of the mitigating
circumstances, as enunciated in Machhi Singh, come to the
rescue of the appellants. Age definitely is a factor which cannot
be ignored, though not determinative factor in all fact
situations. The probability that the accused persons could be
reformed and rehabilitated is also a factor to be borne in mind.
To award death sentence, the aggravating circumstances
(crime test) have to be fully satisfied and there should be no
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mitigating circumstance (criminal test) favouring the accused.
Even if both the tests are satisfied as against the accused, even
then the Court has to finally apply the Rarest of Rare Cases test
(R-R Test), which depends on the perception of the society and
not “judge-centric”, that is whether the society will approve the
awarding of death sentence to certain types of crime or not.
While applying this test, the Court has to look into variety of
factors like society’s abhorrence, extreme indignation and
antipathy to certain types of crimes like rape and murder of
minor girls, especially intellectually challenged minor girls,
minor girls with physical disability, old and infirm women with
those disabilities etc. examples are only illustrative and not
exhaustive. Courts award death sentence, because situation
demands, due to constitutional compulsion, reflected by the will
of the people, and not Judge centric.
14. We are of the view, so far as this case is concerned, that
the extreme sentence of capital punishment is not warranted.
Due to the fact that the appellants are instrumental for the
death of four persons and nature of injuries they have inflicted,
in front of PW1, whose son, daughter-in-law and two grand
children were murdered, we are of the view that the appellants
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deserve no sympathy. Considering the totality of facts and
circumstances of this case we hold that imposition of death
sentence on the appellants was not warranted but while
awarding life imprisonment to the appellants, we hold that they
must serve a minimum of thirty years in jail without remission.
The sentence awarded by the trial court and confirmed by the
High Court is modified as above. Under such circumstance, we
modify the sentence from death to life imprisonment.
Applying the principle laid down by this Court in Sandeep
(supra), we are of the view that the minimum sentence of thirty
years would be an adequate punishment, so far as the facts of
this case are concerned.
Appeal is partly allowed.
............................................J. (K. S. RADHAKRISHNAN)
............................................J. (DIPAK MISRA)
New Delhi, February 07, 2013