REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 314-315 OF 2001

State of U.P. …Appellant

Versus

Sattan @ Satyendra & Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.  Challenge in this appeal is to the judgment of a Division Bench of

the Allahabad High Court by which two Criminal appeals filed by accused

Sattan, Uppendra, Hari Pal son of Kiran Singh and Hari Pal son of Ram

Charan (Criminal Appeal No. 2140 of 1999) and Criminal Appeal No. 2237

of  1999  filed  by  accused  Kripal,  Brij  Pal,  Ram  Pal  and  Devendra.  A

reference under Section 366 of the Code of Criminal Procedure, 1973 (in

short  the  ‘Code’)  for  confirmation  of  death  sentence  in  respect  of  the

accused appellants in Criminal Appeal No. 2140 of 1999 before the High

Court was made.  So far as Sattan, Upendra, Hari Pal son of Kiran Singh

and Hari pal son of Ram Charan are concerned they were sentenced to two

years R.I. each under Section 148 of the Indian Penal Code, 1860 (in short

the ‘IPC’), 10 years R.I. under Section 307 read with Section 149 IPC and

death sentence in respect of offence punishable under Section 302 read with

Section 149 IPC.  The appellants in the Criminal Appeal No.2237 of 1999

were convicted and sentenced to life imprisonment under Section 120 B IPC

alongwith  appellants  in  Criminal  Appeal  No.  2140  of  1999  accused

Mukesh, Dhirendra, Rakesh, Naresh and Pappu also faced trial. Out of them

Pappu and Naresh died during the pendency of trial while Mukesh, Rakesh

and  Dhirendra  absconded  and  trial  so  far  as  they  are  concerned  were

separated.  One  Rajveer  was  also  charged  in  terms  of  Section  120B

alongwith appellants in Criminal Appeal No. 2237 of 1999. The Criminal

Appeal  No.2237  of  1999  was  allowed  and  conviction  of

Brijpal,  Ram Pal and Devendra was set aside. So far as Criminal Appeal

No.2140 of 1999 is concerned the conviction as recorded was maintained.

Death sentence imposed was altered to life sentence.  In the present appeals

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State  has  questioned  alteration  of  the  death  sentence  to  life  sentence  in

respect of appellant in Criminal Appeal No. 2140 of 1999 and the acquittal

as  recorded in  Criminal  Appeal  No. 2237 of  1999 as  maintained;  While

upholding the conviction of accused Sattan and Upendra directed acquittal

of Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan.

2. According  to  learned  counsel  for  the  State  the  only  appropriate

sentence in a case of  this nature was death sentence and the High Court

erred in altering it to life sentence after upholding the conviction. Similarly,

in respect of the acquittal in the case of the appellants in separate Criminal

Appeal Nos.2237 and 2140 of 1999 is concerned, it  is submitted that the

High  Court  has  not  indicated  any  reasons  as  to  why  the  conviction  as

recorded  by  the  Trial  Court  suffered  from  any  infirmity  to  warrant

interference.  

3. Mr.  M. Karpaga Vinayagam, learned Amicus Curiae supported the

judgments of the High Court.

4. The prosecution version as unfolded during trial is as follows:

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In the  night  between  August  30  and 31,  1994 at  about  12.30  five

persons  of  Sheo Pal’s  family were  gunned down in  his  house  in  village

Saloni  within  the  area  of  police  station  Bahadurgarh,  Ghaziabad.   Four

others were injured, out of whom Neetu also succumbed to his injuries later

on.  This massacre was reported at the police station on the same night at

2.55 A.M. by one of the survivors,  Smt. Bala, PW 1 widow of deceased

Shiv Singh.  With the registration of case police came into action and the

Investigating  Officer  promptly  rushed  to  the  place  of  occurrence  and

recorded the statements of Smt. Bala, Neetu and Km. Guddi who all  had

received injuries in the course of ghastly incident. Inquest proceedings were

held in respect of dead bodies of five persons, namely, Sheo Pal Singh, Smt.

Kunti Devi, Shiv Singh, Manjeet and Khushal who were reported to have

been shot dead by the assailants while asleep inside their house. Their dead

bodies  were  sent  for  postmortem examination.  The  investigating  Officer

Shri  Ram Babu  Tiwari,  P.W.9  also  pr-epared  site  plan,  Ex.Ka  48  after

making spot inspection of the place of occurrence. Injured Neetu was sent

for medical examination. Under the order of the Investigating Officer S.I.

Shri D.K. Sharma collected samples of blood through memo Ex. Ka 26 from

near  the  dead  body  of  Kunti  Devi.  Similarly,  samples  of  blood  were

collected  from near  the  dead  bodies  of  other  deceased  persons  through

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memos Ex. Ka. 27 to Ex. Ka.3. The bed sheet lying on the cot of deceased

Shiv Singh was also taken into possession through memo Ex. Ka. 3. The

electric bulbs which are alleged to be giving light at the time of incident

were  also  inspected  and  Memo  Ex.  Ka.  32was  prepared.  The  Kurta  of

Injured Guddi which was stained with blood and had pellet marks was taken

into  possession  through  memo Ex.  Ka.33.  The  pieces  of  blood  stained

bandh  of  cot  of  deceased  Manjeet  and  Khushal  were  also  taken  into

possession through memo Ex. Ka. 34. The Investigating Officer also found

empty cartridges, bullet and wads at the scene of occurrence. They were also

taken into police custody through EX. Ka.35. He also interrogated Madhu

and Rikku and other villagers. A raid was made on the house of accused

Mukesh, Sattan and Guddu but they were not found. During investigation

complicity of other accused persons also came to light that they had hatched

conspiracy  for  the  commission  of  the  crime  in  question.  Some  of  the

accused persons were arrested while others surrendered in court and after

completion  of  investigation  charge  sheet  was  prepared  against  all  the

accused persons who had been either arrested by him or has surrendered in

court and also against Upendra alias Guddu, Pappu, Dheeraj and Devendra

who were then still absconding. Later on accused Pappu alias Amarjeet and

Rajveer were also arrested. It was also revealed that accused Upendra alias

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Guddu was in jail after having been arrested in a case under Gangster Act.

Similarly, accused Dheeraj was in jail in connection with case Crime No.

628 of 1993 under Section 307 I.P.C.

Smt.  Bala  (PW.1)  who  is  alleged  to  have  herself  received  injuries

during  the  course  of  incident  got  the  first  information  report  Ex.  Ka.  I

scribed  by  Km.  Guddi,  her  niece.  Km.  Guddi  is  also  alleged  to  have

sustained  injuries  during  the  course  of  the  same  incident  but  she  was

murdered before she could be examined in the trial court as a witness.

The case as set out in the first information report in short  was that

some incident had occurred in the year 1986 between family members of

complainant and accused Mukesh and Guddu sons of Rajveer and the matter

was  reported  at  the  police  station  from complainant's  side.  A  case  was

proceeding in court at Hapur some time before the present incident and the

police had raided the house of accused Mukesh. Mukesh and Guddu, came

to the house of Sheo Pal Singh and gave threats to them saying that they had

not done good by getting his house raided. The accused persons were thus

bearing enmity with Sheo Pal and others.

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It was further alleged in the report lodged by Smt. Bala that in the

night between 30/31 August, 1994 at about 12.30 A.M. Mukesh and Guddu

of her  own village carrying country made pistols  with them and accused

Sattan of village Lohari also having a country made pistols alongwith 4-5

unknown persons who were also having weapons like pistols, Dalkati, Lathi

etc. entered into her house. At that time electric bulbs were emitting light

inside and out side the house. The family members of her Jeth, Sheo pal

Singh were sleeping on cots outside the house. She herself (Smt. Bala) was

resting inside the house, while her husband Shiv Singh was sleeping on the

roof.  The accused persons after making entry into the house immediately

started hurling abuses by name to her Jeth Sheo Pal Singh saying that he

was  acting  as  an  informer  to  police,  hence  he  and  his  family would  be

eliminated completely. Hearing it Sheo Pal got up and started running but

he was chased by accused Mukesh and Sattan and was shot dead in the Gher

of  Devendra.  Mukesh  and  Sattan  then  said  that  entire  family  should  be

finished and thereafter accused persons killed Kunti Devi, wife; of Sheo Pal,

Khushal son of Sheo Pal and Manjeet son of Shiv Singh. They also injured

Neetu son of Sheo Pal, Guddi, daughter of Sheo Pal Singh and baby Kapil

about 3 years old son of' Shiv Singh. Mukesh and Sattan with his associates

climbed over the roof and murdered her husband Shiv Singh on the cot on

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which  he  was  sleeping.  On  hearing  the  sound  of  firing,  villagers  were

awakened and when they tried  to  come near  the  first  informant’s  house,

accused persons made indiscriminate firing and said that if any one dared to

come nearer he would be shot dead and further that if anyone of them would

give evidence he would meet the same fate as that of deceased persons. On

the threats given by accused persons villagers retreated to their houses and

closed their doors. The firing incident caused a panic in the village and the

miscreants left the scene of occurrence brandishing their weapons.

Before adverting further  it  may be relevant  to place the following

pedigree in order to show that all the deceased and injured persons were

members of same family.

HUKUM SINGH  !  !

_____________________________________________ Sheo Pal Shiv Singh  (Deceased) (Deceased)

Wife Kunti Devi  Wife Smt. Bala (PW1) (Deceased) (Injured)         1      1

1      1 1      1 1 ____________________      

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1      Manjeet              Kapil 1     (Deceased) (Injured)

1       1                   1

_________________________________________ Khushal                    Guddi Neetu   (Deceased)         (Injured) (Injured and died later on)

From  the  above  pedigree  it  would be  evident  that  all  the  nine

members  of  family  of  Hukum Singh  were  present  and  sleeping  in  their

houses  when  this  ghastly  incident  occurred.  Four  were  of  Shiv  Singh's

family  and  rest  belonged  to  Sheo  Pal’s  family.   All  of  them sustained

injuries.  Smt.  Bala,  Baby  Kapil  and  Km.  Guddi  survived  but  before

statement of Guddi could be recorded at the trial  she was also murdered.

Baby Kapil was a child of about three years old. Thus the prosecution was

left with no alternative except to examine at the trial  Smt. Bala, the sole

surviving member of the above two families.

At  the  trial  from  the  prosecution  side  in  all  nine  witnesses  were

produced. Smt. Bala (PW 1) widow of deceased Shiv Singh corroborated

the facts stated by her in the FIR and further added that the assailants were

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ten in number, out of whom she identified Mukesh, Guddu, Rakesh, Naresh,

Pappu,  Sattan,  Haripal  son  of  Kiran  Singh,  Haripal  son  of  Ram Charan,

Dhirendra alias Dheeraj. She further stated that Rakesh and Dhirendra were

having Balkati  and rest  had country made pistols.  She  also  testified  that

Sheo Pal, his wife Kunti Dcvi, his son Khushal, her Husband Shiv Singh

and her son Manjeet were murdered on the spot by the assailants with their

respective weapons, Neetu son of Sheo Pal, Km. Guddi, Baby Kapil and she

herself also suffered injuries at the hands of the accused persons. She further

stated that had the matter between accused and deceased persons been not

got compromised by accused Kripal, Rajveer, Devendra, Brij Pal and Ram

Pal, the incident in  question would not have occurred. In this way it was

suggested that the aforesaid accused persons hatched a conspiracy with the

actual assailants to get the entire family of Sheo Pal and Shiv Singh wiped

out.  She is the only eye witness examined at the trial.  

As noted above, the trial court found the evidence of the witnesses to

be credible and cogent and directed conviction and imposed death sentence,

so far as the Sattan, Upendra, Hari Pal son of Kiran Singh and Hari pal son

of Ram Charan are concerned. It also found that the accusations relating to

Section 120B of the Act have been established so far as the Kripal, Brij Pal,

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Devendra are concerned.  The High Court analysed the evidence to hold that

the  accusations  so  far  as  the  Sattan,  Upendra,  are  concerned  have  been

established.  But further held that this was a case where there were certain

mitigating circumstances which warranted alteration of the death sentence

to life sentence.

The mitigating and extenuating circumstances pointed out to take the

view are as follows:

“(i) that number of casualties cannot be sole criterion for awarding

death sentence;

(ii) that though in a criminal case compromise was filed, the police

however at the instance of deceased Sheo Pal raided the house of accused

Mukesh and Guddu alias Upendra and this excited the accused to commit

the alleged crime;

(iii) that  PW  1(smt.  Bala)  the  sole  eye  witness  did  not  assign

specific role to each of the two accused-respondents;

(iv) that according to FIR story, the three named accused persons

along  with  4-5  others  committed  the  crime  and  therefore,  possibility  of

unknown persons having taken the active part could not be ruled out;

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(v) that  there  is  nothing  on  record  to  show  that  accused-

respondents  Sattan  alias  Satyendra  and  Guddu  alias  Upendra  acted  in  a

brutal and cruel manner while committing the crime;

(vi) that  there  is  nothing  on  record  to  show that  K.  Guddu  was

murdered during pendency of the case by the present accused-respondents,

so that there could be no evidence against them;

(vii) that the assailants did not do away with Smt. Bala (PW 1) Km.

Guddi (17 years), baby Kapil  (3 years) and a child to screen the offence;

(viii) that  the  assailants  showed  mercy  on  Smt.  Bala  and  did  not

cause any harm to her; and

(ix) that respondent Sattan alias Satyendra was a young boy of 20

years of age at the time of incident.”

5. It is submitted by learned counsel for the appellant that taking into

consideration the aforesaid circumstances the High Court came to an abrupt

conclusion  that  on  consideration  of  aggravating  and  mitigating

circumstances  the case does not  fall  within the category of rarest of rare

cases.

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6. Learned amicus Curiae appearing for the accused persons on the other

hand submitted that six circumstances were highlighted by the High Court.

7. Motive  was  not  clearly  established.  No  specific  roles  have  been

ascribed.  Ocular  and medical  evidence did not  fit  in.   There is  no crime

record of any of the accused persons and it cannot be said that they cannot

be reformed. Two views are possible. There was considerable lapse of time.

It  is  to  be  noted  that  according  to  the  High  Court  the  mitigating

circumstances  show  there  is  no  criminal  record  of  any  of  the  accused

persons. There was no overt act attributed to each of the accused persons

and the number of deaths cannot be a criteria to decide as to whether death

sentence or life sentence to be imposed.

8. According to learned Amicus Curiae, incident was of the year 1992,

the death sentence was awarded in 1999 and  by the impugned judgment

which is of the year 2000, alteration have been directed and at this length of

time there should not be any interference.

9. Before dealing with the position in law as highlighted by this Court

relating to rarest of rare categories where death sentence can be awarded,

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submissions  made  by  learned  Amicus  Curiae  to  show  existence  of

mitigating circumstances need to be noted.  It is stated by learned Amicus

Curiae  that  motive  is  not  clearly  established.   This  is  contrary  to  the

conclusions of the High Court.  In fact, the High Court has treated that an

entire family was eliminated and if the evidence of Smt. Bala (PW 1) is

considered  reliable  and  trustworthy,  the  inadequacy and  insufficiency of

motive pales into significance and recedes behind the curtain.  So far as the

specific  overt  acts  are  concerned,  it  is  to  be  noted  that  apart  from the

accused persons who faced trial three of these persons, namely, absconding

accused  Mukesh  Dhirendra  and  Rakesh  were  described  as  accused.   Six

persons  were  killed.  It  is  not  expected  that  a  lady  witnessing  such  a

massacre would note the details.     

10. This court has observed in Sahdeo v. State of U.P. [2004 SCC (Crl.)

1873] that though in the particular facts of the case the death sentence was

converted  to  imprisonment  for  life,  yet  it  cannot  be  said  that  accused

persons  cannot be awarded death sentence in cases where  the conviction

was recorded under Section 302 read with Section 149 IPC.  So far as the

alleged  discrepancy  between  medical  evidence  and  ocular  evidence  is

concerned,  it  is  to  be  noted  as  rightly  done  by the  High  Court  that  the

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incident occurred around mid night when six murders were committed one

after another.  In such circumstances it was practically not possible for any

witness to ascribe pin pointed role or the kind of weapons with which blows

were given. In an incident when killing of so many persons took place, it

would  be difficult  for  a witness  to  remember with  precision  the  kind  of

weapon used by a particular accused. It is to be noted that evidence of the

witnesses are not liable for rejection on the hypothetical so called medical

discrepancy.   It  is  submitted  by  learned  counsel  for  the  respondent  that

when number of death is not the determinative factor and since the High

Court about eight years back has altered the conviction, the life sentence

may be clarified to be one for 20 years as have been done in some cases for

example in Ram Anup Singh v. State of Bihar [2002(6) SCC 686].

11. The law regulates a social interests, arbitrates conflicting claims and

demands.   Security of  persons  and property of  the people is  an essential

function  of  the  State.  It  could  be  achieved  through  instrumentality  of

criminal law. Undoubtedly, there is  a cross  cultural  conflict  where living

law must find answer to the new challenges and the courts are required to

mould  the  sentencing  system  to  meet  the  challenges.  The  contagion  of

lawlessness would undermine social order and lay it in ruins.  Protection of

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society  and  stamping  out  criminal  proclivity  must  be  the  object  of  law

which must be achieved by imposing appropriate sentence. Therefore, law

as  a  corner-stone  of  the  edifice  of  “order”  should  meet  the  challenges

confronting the society. Friedman in his “Law in Changing Society” stated

that, “State of criminal law continues to be – as it should be – a decisive

reflection of social consciousness of society”.  Therefore, in operating the

sentencing  system,  law  should  adopt  the  corrective  machinery  or  the

deterrence based on factual matrix.  By deft modulation sentencing process

be stern where it should be, and tempered with mercy where it warrants to

be. The facts and given circumstances in each case, the nature of the crime,

the  manner  in  which  it  was  planned  and  committed,  the  motive  for

commission of the crime, the conduct of the accused, the nature of weapons

used and all other attending circumstances are relevant facts which would

enter into the area of consideration.  For instance a murder committed due to

deep-seated mutual and personal rivalry may not call for penalty of death.

But an organised crime or mass murders of innocent people would call for

imposition  of  death sentence as  deterrence.   In  Mahesh v.  State of  M.P.

(1987) 2 SCR 710), this Court while refusing to reduce the death sentence

observed thus:

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“It  will  be  a  mockery  of  justice  to  permit  the accused to escape the extreme penalty of law when faced with  such  evidence  and  such  cruel  acts.  To  give  the lesser punishment for the accused would be to render the justicing  system of  the  country suspect.   The common man  will  lose  faith  in  courts.   In  such  cases,  he understands and appreciates the language of deterrence more than the reformative jargon.”

12. Therefore, undue sympathy to impose inadequate sentence would do

more harm to the justice system to undermine the public confidence in the

efficacy  of  law  and  society  could  not  long  endure  under  such  serious

threats.  It is, therefore, the duty of every court to award proper sentence

having regard to the nature of the offence and the manner in which it was

executed or committed etc. This position was illuminatingly stated by this

Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

13. The criminal law adheres in general to the principle of proportionality

in prescribing liability according to the culpability of each kind of criminal

conduct.  It  ordinarily  allows  some significant  discretion  to  the  Judge  in

arriving  at  a  sentence  in  each case,  presumably  to  permit  sentences  that

reflect  more  subtle  considerations  of  culpability  that  are  raised  by  the

special facts of each case.  Judges in essence affirm that punishment ought

always to fit the crime; yet in practice sentences are determined largely by

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other  considerations.  Sometimes  it  is  the  correctional  needs  of  the

perpetrator that are offered to justify a sentence. Sometimes the desirability

of keeping him out of circulation, and sometimes even the tragic results of

his crime. Inevitably these considerations cause a departure from just desert

as the basis of punishment and create cases of apparent injustice that are

serious and widespread.  

14. Proportion  between  crime  and  punishment  is  a  goal  respected  in

principle, and in spite of errant notions, it remains a strong influence in the

determination  of  sentences.  The  practice  of  punishing  all  serious  crimes

with equal severity is now unknown in civilized societies, but such a radical

departure from the principle of proportionality has disappeared from the law

only  in  recent  times.  Even  now  for  a  single  grave  infraction  drastic

sentences are imposed. Anything less than a penalty of greatest severity for

any  serious  crime  is  thought  then  to  be  a  measure  of  toleration  that  is

unwarranted and unwise. But in fact, quite apart from those considerations

that make punishment unjustifiable when it is out of proportion to the crime,

uniformly disproportionate punishment has some very undesirable practical

consequences.            

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15. After giving due consideration to the facts and circumstances of each

case,  for  deciding  just  and  appropriate  sentence  to  be  awarded  for  an

offence, the aggravating and mitigating factors and circumstances in which

a crime has been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by the Court.  Such

act of balancing is indeed a difficult task.  It has been very aptly indicated in

Dennis Councle MCG Dautha v. State of Callifornia: 402 US 183: 28 L.D.

2d 711  that no formula of a foolproof nature is possible that would provide

a reasonable criterion in determining a just and appropriate punishment in

the infinite variety of circumstances that may affect the gravity of the crime.

In the absence of any foolproof formula which may provide any basis for

reasonable criteria to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary judgment in the facts of

each  case,  is  the  only  way  in  which  such  judgment  may  be  equitably

distinguished.

16. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353),

it has been held by this Court that in the matter of death sentence, the Courts

are required to answer new challenges and mould the sentencing system to

meet these challenges.  The object should be to protect the society and to

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deter  the  criminal  in  achieving  the  avowed  object  to  law  by  imposing

appropriate  sentence.  It  is  expected  that  the  Courts  would  operate  the

sentencing  system  so  as  to  impose  such  sentence  which  reflects  the

conscience of the society and the sentencing process has to be stern where it

should be. Even though the principles were indicated in the background of

death  sentence  and  life  sentence,  the  logic  applies  to  all  cases  where

appropriate sentence is the issue.

17. Imposition  of  sentence  without  considering its  effect  on  the social

order in many cases may be in reality a futile exercise. The social impact of

the  crime,  e.g.  where  it  relates  to  offences  against  women,  dacoity,

kidnapping, misappropriation of public money, treason and other offences

involving moral turpitude or moral delinquency which have great impact on

social order, and public interest, cannot be lost sight of and per se require

exemplary treatment. Any liberal attitude by imposing meager sentences or

taking too sympathetic view merely on account of lapse of time in respect of

such offences will  be result-wise counter  productive in  the  long run and

against  societal  interest  which needs to be cared for and strengthened by

string of deterrence inbuilt in the sentencing system.  

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18. In  Dhananjoy Chatterjee v.  State of W.B. (1994 (2) SCC 220), this

Court  has  observed  that  shockingly  large  number  of  criminals  go

unpunished  thereby  increasingly,  encouraging  the  criminals  and  in  the

ultimate making justice suffer by weakening the system’s creditability. The

imposition  of  appropriate  punishment  is  the  manner  in  which  the  Court

responds  to  the  society’s  cry  for  justice  against  the  criminal.  Justice

demands that Courts should impose punishment befitting the crime so that

the Courts reflect public abhorrence of the crime.  The Court must not only

keep in view the rights of the criminal but also the rights of the victim of the

crime  and  the  society  at  large  while  considering  the  imposition  of

appropriate punishment.

19. Similar view has also been expressed in  Ravji v.  State of Rajasthan,

(1996 (2) SCC 175). It has been held in the said case that it is the nature and

gravity  of  the  crime  but  not  the  criminal,  which  are  germane  for

consideration of appropriate punishment in a criminal trial.  The Court will

be failing in its duty if appropriate punishment is not awarded for a crime

which has been committed not only against the individual victim but also

against  the  society  to  which  the  criminal  and  victim  belong.   The

punishment to be awarded for a crime must not be irrelevant but it should

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conform to and be consistent with the atrocity and brutality with which the

crime has  been  perpetrated,  the  enormity of  the  crime warranting  public

abhorrence and it should “respond to the society’s cry for justice against the

criminal”. If for extremely heinous crime of murder perpetrated in a very

brutal manner without any provocation,  most  deterrent  punishment is  not

given, the case of deterrent punishment will lose its relevance.

20. These  aspects  have  been  elaborated  in  State  of  M.P. v.  Munna

Choubey [2005 (2) SCC 712].

21. In  Bachan  Singh v.  State  of  Punjab [1980  (2)  SCC  684] a

Constitution  Bench of this  Court  at  para 132 summed up the position as

follows: (SCC p.729)

“132.  To  sum  up,  the  question  whether  or  not  death penalty  serves  any  penological  purpose  is  a  difficult, complex  and  intractable  issue.  It  has  evoked  strong, divergent  views.  For  the  purpose  of  testing  the constitutionality of the impugned provision as to death penalty  in  Section  302,  Penal  Code  on  the  ground  of reasonableness in the light of Articles 19 and 21 of the Constitution,  it  is  not  necessary  for  us  to  express  any categorical opinion, one way or the other, as to which of these  two  antithetical  views,  held  by  the  Abolitionists and Retentionists,  is  correct.  It  is  sufficient  to say that the very fact  that  persons of reason,  learning and light are rationally and deeply divided in their opinion on this

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issue,  is  a  ground  among  others,  for  rejecting  the petitioners’ argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over,  including  sociologists,  legislators,  jurists,  judges and administrators still  firmly believe in the worth and necessity  of  capital  punishment  for  the  protection  of society,  if  in  the  perspective  of  prevailing  crime conditions  in  India,  contemporary  public  opinion channelised  through  the  people’s  representatives  in Parliament,  has  repeatedly  in  the  last  three  decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if  death  penalty is  still  a recognised  legal  sanction for murder or some types of murder in most of the civilised countries  in  the  world,  if  the  framers  of  the  Indian Constitution  were fully aware — as we shall  presently show they were — of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the  35th  Report  and  subsequent  reports  of  the  Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in  that  Code  providing  for  pre-sentence  hearing  and sentencing procedure on conviction for murder and other capital offences were before Parliament and presumably considered by it when in 1972-73 it took up revision of the  Code  of  1898  and  replaced  it  by  the  Code  of Criminal Procedure, 1973, it is not possible to hold that the  provision  of  death  penalty  as  an  alternative punishment  for  murder,  in  Section  302,  Penal  Code is unreasonable and not in the public interest.  We would, therefore,  conclude  that  the  impugned  provision  in Section 302, violates neither the letter nor the ethos of Article 19."

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22. Similarly, in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in

para 38 the position was summed up as follows: (SCC p. 489)

“38.  In  this  background  the  guidelines  indicated  in Bachan Singh's case (supra) will  have to be culled out and applied to the facts of each individual case where the question  of  imposing  of  death  sentence  arises.  The following propositions emerge from Bachan Singh's case (supra):

(i)  The  extreme  penalty  of  death  need  not  be inflicted  except  in  gravest  cases  of  extreme culpability.

(ii)  Before  opting  for  the  death  penalty  the circumstances of the ‘offender’ also require to be taken  into  consideration  along  with  the circumstances of the ‘crime’.

(iii)  Life  imprisonment  is  the  rule  and  death sentence  is  an  exception.  In  other  words  death sentence  must  be  imposed  only  when  life imprisonment  appears  to  be  an  altogether inadequate  punishment  having  regard  to  the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment  for  life  cannot  be  conscientiously exercised  having  regard  to  the  nature  and circumstances  of  the  crime  and  all  the  relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances  have to be accorded full weightage and a just balance has to be struck

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between  the  aggravating  and  the  mitigating circumstances before the option is exercised."

23. The position was again reiterated in  Devender Pal Singh v.  State of

NCT of Delhi [2002 (5) SCC 234 ] : (SCC p. 271, para 58)

“58.  From  Bachan  Singh's  case  (supra)  and  Machhi Singh's case (supra) the principle culled out is that when the  collective  conscience  of  the  community  is  so shocked,  that  it  will  expect  the  holders  of  the  judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:

The  community may entertain  such  sentiment  in the following circumstances:

(1) When the murder is committed in an extremely brutal,  grotesque,  diabolical,  revolting,  or dastardly  manner  so  as  to  arouse  intense  and extreme indignation of the community. (2)  When the murder  is  committed  for  a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à- vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3)  When  murder  of  a  member  of  a  Scheduled Caste  or  minority  community,  etc.  is  committed not  for  personal  reasons  but  in  circumstances

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which  arouse  social  wrath;  or  in  cases  of  ‘bride burning’  or  ‘dowry  deaths’  or  when  murder  is committed  in  order  to  remarry  for  the  sake  of extracting dowry once again or to marry another woman on account of infatuation.  (4) When the crime is enormous in proportion. For instance  when  multiple  murders,  say  of  all  or almost  all  the  members  of  a  family  or  a  large number  of  persons  of  a  particular  caste, community, or locality, are committed. (5)  When  the  victim  of  murder  is  an  innocent child, or a helpless woman or old or infirm person or a person vis-à-vis  whom the murderer  is  in a dominating position,  or a public figure generally loved and respected by the community.”

24. If upon taking an overall global view of all the circumstances in the

light of the aforesaid propositions and taking into account the answers to the

questions  posed  by  way  of  the  test  for  the  rarest  of  rare  cases,  the

circumstances  of  the  case  are  such that  death  sentence is  warranted,  the

court would proceed to do so.

25. What is culled out from the decisions noted above is that while

deciding the question as to whether the extreme penalty of death sentence is

to be awarded, a balance sheet of aggravating and mitigating circumstances

has to be drawn up.

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26. Lord Justice Denning, Master of the Rolls of the Court of Appeals in

England said to the Royal Commission on Capital Punishment in 1950:

"Punishment  is  the  way in  which  society  expresses  its denunciation of wrong doing; and, in order to maintain respect  for  the  law,  it  is  essential  that  the  punishment inflicted for grave crimes should adequately reflect  the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being  a  deterrent  or  reformative  or  preventive  and nothing  else...  The  truth  is  that  some  crimes  are  so outrageous that society insists on adequate punishment, because  the  wrong  doer  deserves  it,  irrespective  of whether it is a deterrent or not."

In J.J. Rousseau's The Social Contract written in 1762, he says the following:

Again, every rogue who criminously attacks social rights becomes,  by  his  wrong,  a  rebel  and  a  traitor  to  his fatherland. By contravening its laws, he ceases to be one of  its  citizens:  he  even  wages  war  against  it.  In  such circumstances,  the  State  and  he cannot  both be  saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he broken the Social Contract, and so is no longer a member of the State.

27. The case at hand falls in the rarest of rare category. The depraved acts

of the accused call for only one sentence that is death sentence.

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28. The above position  was highlighted  in  Bantu v.  The State  of  U.P.

[2008(10) SCALE 336]

29. Murder of  six members of a family including helpless  women and

children having been committed in a brutal, diabolic and bristly manner and

the  crime being  one  which  is  enormous  in  proportion  which  shocks  the

conscious of law, the death sentence as awarded in respect of accused Sattan

and Guddu was the appropriate sentence and the High Court ought not to

have altered it.  So far as the acquittal of the Hari Pal son of Kiran Singh

and Hari Pal son of Ram Charan are concerned, the High Court has noted

that the evidence so far as their involvement is concerned was not totally

free  from doubt.   The  High  Court  have  analysed  the  factual  scenario  in

detail  to  direct  the  acquittal.   We  find  no  reason  to  differ  from  the

conclusions of the High Court.   The acquittal as directed stands affirmed.

So far as other four respondents i.e. appellants in Criminal Appeal No.2237

of 1999 is concerned they were charged under Section 120 B.  It has been

recorded by the High Court that except the suspicion which the informant

was having in her mind about the involvement of these four accused persons

there was neither any direct or circumstantial evidence to fasten the charge

of  criminal  conspiracy.  That  being  so  the  High  Court  was  justified  in

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directing their acquittal. Criminal Appeal No. 314 is allowed.  The State’s

appeal so far as Sattan and Upendra are concerned is allowed to the extent

that the death sentence as was awarded by the trial court is restored so far as

they are concerned. The appeal fails so far as respondents Hari Pal son of

Kiran Singh and Hari Pal son of Ram Charan are concerned.           

30. We record our appreciation for the able assistance rendered by Mr. M.

Karapaga Vinayagam, learned Amicus Curae.  

……….………………………….J. (Dr. ARIJIT PASAYAT)

…………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 27, 2009

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