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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