CASE NO.: Appeal (crl.) 1376 of 1999 PETITIONER: KISHORI RESPONDENT: STATE (NCT) OF DELHI DATE OF JUDGMENT: 17/12/1999 BENCH: K.T. THOMAS & D.P. MOHAPATRA JUDGMENT:
JUDGMENT
1999 Supp(5) SCR 494
The Judgment of the Court was delivered by
D.P. MOHAPATRA, J. Having been sentenced to death and ordered to-be hanged
by neck till death by the trial court and confirmed by the High Court of
Delhi, the appellant Kishori filed the Special Leave Petition seeking leave
of this Court to challenge the judgment of the High Court, By order dated
27.9.1999 this Court issued notice to the respondents and stayed execution
of the death penalty until the disposal of the case.
Leave granted.
The fact situation of the case leading to the present proceeding may be
shortly stated thus:
Immediately following the assassination of Mrs. Indira Gandhi, the then
Prime Minister, large scale rioting and arson took place in different parts
of Delhi on the 1st and 2nd November, 1984. Many persons, young, old and
children belonging to Sikh community were mercilessly killed. The incident
in the present case took place in Block No. 30, 32 and 34 of Trilok Puri on
1.11.1984. Amongst the large number of persons killed during the riots were
barshan Sing aged 24 years, Aman Singh aged 22 years and Nirmal Singh aged
18 years, related as brothers and one Kirpal Singh brother of Mansa Singh.
Many houses were gutted and many persons were burnt alive in the area.
Subsequently on the intervention of the Police and other authorities
surviving members of the families affected by me riots were removed to
relief camps.
On 17.11.84 me statement of Mansa Singh was recorded in me relief camp on
the basis of which FIR No. 426/84 relating to the incident in the present
case was registered. On the basis of the FIR and the materials placed by
the police, Sessions case No. 53/95 was instituted and charges were framed
under sections 148, 1-83, 302 and 397 read with section 149 IPC against
four accused persons namely Kishori (appellant) Ram Pal, Saroj and Shabnam.
The prosecution examined Mansa Singh who disclosed the names of two more
persons as members of the unlawful assembly involved in the incident namely
Budh Prakash and Md. Abbas. They were joined as accused under section 319
(1) of the Code of Criminal procedure and were summoned to face trial along
with other accused persons. On completion of the trial the Additional
Sessions Judge, Delhi on appreciation of the evidence found Kishori, Dr.
Budh Prakash and Mohammad Abbas guilty of the offences charged and
convicted each of them and sentenced each of them under section 148 IPC to
undergo Rigorous imprisonment (RI) for 2 years, under section 188 IPC to RI
for 6 months, under section 397 read with section 149 IPC to RI for 10
years and a fine of Rs. 20,000 in default to undergo RI for another two
years, and under section 302 read with section 149 IPC to the sentence of
death and a fine of Rs, 30,000 in default to RI for 2 years more. All the
three convicts were ordered to be hanged by neck till their death. All the
substantive sentences were made to run concurrently. All the convicts filed
appeals before the High Court challenging the judgment of the trial court.
The High Court on perusal of the records arid on consideration of the
contentions raised on behalf of the parties allowed the appeals filed by
Dr. B.P. Kashyap alias Dr. Lamboo and Mohammed Abbas, set aside the order
of conviction and sentence and acquitted them of the charges. The High
Court confirmed the order of conviction and sentence passed against the
appellant Kishori. The operative portion of the judgment reads as follows:
“The crime in the present case qua appellant Kishori falls in the category
of rarest of rare cases and the sentence has to be commensurate with the
degree/gravity of the offence so that a required message is sent.
In the above view of the matter, having regard to the evidence as above, in
our view the conviction and death sentence imposed by the Trial Court on
Kishori son of Hoshiar Singh (appellant in Crl. A. No. 313/98) deserves to
be confirmed tinder Section 366 of the Code whereas the conviction and
sentence of appellants Dr. Budh Prakash Kashyap @ Dr. Lamboo son of Jayanti
Prashad (appellant in Crl. A. No, 455/97) and Mohammed Abbas son of Munsif
All (appellant in Crl. A.No.421/97) deserves to set aside.
In the result. Criminal Appeal No, 313/98 being devoid of merits is
dismissed The murder reference No. 6/97 under Section 366 of the Code is
partly accepted to the extent that the death sentence imposed on Kishori
son of Hoshiar Singh only is confirmed. Criminal Appeals No,421/97 and
455/97 are allowed. The conviction and sentence imposed on appellants Dr.
Budh Prakash Kashyap @ Dr. Lamboo son of Jayanti Prashad and Mohammad Abbas
son of Munsif Ali are set aside.”
From the discussion in the judgment it appears, that there were two eye-
witnesses to the occurrence, i.e. PW3 Mansa Singh and PW7 Devi Kaur wife of
Mansa Singh. The High Court placed reliance on the ocular testimony of PW3
but did not place reliance on the statement of PW7. Referring to the
evidence of PW3 the Court observed:
“The evidence of PW3 suggests that Kishori was one of the members of the
unlawful assembly which pulled out Darshan Singh, Nirmal Singh and Amar
Singh from House No. 32/7, Trilok Puri on 1.1.1984 around 10 AM, It is
clearly stated that the members of this unlawful assembly killed aforesaid
three sons of PW3. A categorical statement has been made by PW3 that
Kishori present in court was Having a big pig cutting knife and was one of
the members of the mob and that he cut the sons of PW3 It is pertinent to
note that there is no cross-examination challenging the statement of PW3 to
the effect that Kishori was living in block No. 31 and was having shop near
Gurudwara on the main road of block no. 32. On the contrary, the suggestion
denied by the witness is that he used to play cards at the shop of Kishori.
It has been categorically stated that witness knew Kishori 2/3 years before
the riots and had opened a meat shop opposite Gurudwara in Khokha. This
would suggest that Kishori was known to the witness much prior to the
incident and was having a meat shop opposite Gurudwara. Even in the
statement dated 17.11.1984 under section 161 of the Code the witness has
attributed a specific overt act of killing his sons with big knife by
Kishori as one of the members of the unlawful assembly. Thus, Kishori has
been attributed the act of killing sons of PW3 with big knife as the member
of unlawful assembly. There is no omission or contradiction proved on
record as regards the role of Kishori in the incident. As far as PW3 is
concerned his statement u/s 161 of the code, first in point of time was
recorded on 17.11.1984 wherein Kishori has been not only specifically named
but an overt act, as pointed out above, has been attributed to him as the
member of the unlawful assembly. PW3 has in categorical terms stated that
when the incident took place he was in his house No. 32/7, Trilok Puri
along with his family members and that the mob of rioters pulled out his
sons Darshan Singh, Amar Singh and Nirmal Singh from the house and killed
them. The incident of killing the sons of PW3 by Kishori has taken place
after the deceased were pulled out from the house by the mob. In our
opinion the principle laid down in the case of State of Rajasthan v.
Mahaveer Singh & Others will not be applicable to the present case, in view
of the specific overt act on the part of Kishori, though no specific overt
act would be necessary when Section 149 IPC is taken aid of
Thus, it will be seen that Kishori has been named as one of the members of
the unlawful assembly carrying big knife and is stated to have cut the sons
of the witness, that Kishori is identified as he was having a meat shop in
the area and known to the witness much prior to the occurrence whereas Budh
Prakash and Mohd. Abbas known to PW3 since 1976, are implicated in me crime
as the members of the unlawful assembly, identified by the witness only
during his testimony and not earlier.”
Though the teamed counsel for the appellant made an attempt to assail the
finding of guilt concurrently recorded by the trial Court and the High
Court, we find no good ground to interfere with the judgment of the High
Court, finding the appellant guilty of the charges particularly charge
under section 302 IPC.
On the question of sentence the learned counsel for the appellant
strenuously urged that the present case cannot be said to be a `rarest of
rare cases’ which calls for imposition of capital sentence imposed on the
appellant Elucidating his contention the learned counsel submitted that the
incident took place during a time when anger and passion of me public at
large had been aroused against members of the Sikh community giving rise to
widespread riots in which people gave vent to their anger against members
of the said community. According to the learned counsel the incident was an
outcome of mob frenzy when normal human behaviour had taken a back-seat and
the animal instinct in man ran high with the members of the frenzied mob.
In such circumstances, submitted the learned counsel, the appellant
deserves to be served with the lesser punishment of life imprisonment in
place of sentence of death. The learned counsel for the State, on the other
hand urged that taking into account the brutal and merciless manner in
which the three young persons were dragged out of their house and hacked to
death in presence of their, family members, no leniency should be shown to
the appellant and this Court should confirm the order imposing capital
sentence on the appellant.
Some of the observations made by this Court in this connection are quoted
hereunder
Jagmohan Singh v. State of U.P. [1973] 1 SCC 20
“24 The policy of the law is giving a very wide discretion in the matter of
punishment to the Judge has its origin in the impossibility of laying down
standards. Take, for example, the offence of Criminal Breach of Trust
punishable under Sec.409, Indian Penal Code. The maximum punishment
prescribed for the offence is imprisonment for life. The minimum could be
as low as one day’s imprisonment and fine. It is obvious that if any
standards were to be laid down with regard to several kinds of breaches of
trust by the persons referred in that section, that would be an impossible
task. All that could be reasonabl; done by the Legislature is to tell the
Judges that between the maximum and minimum prescribed for an offence, they
should, on balancing the aggravating and mitigating circumstances as
disclosed in the case, judicially, decide, what would be the appropriate
sentence. Take the other case of the offence of causing hurt. Broadly, that
offence is divided into two categories-simple hurt and grievous hurt.
Simple hurt is again sub-divided-simple hurt caused by a lethal Weapon is
made punishable by a higher maximum sentence-Section 324. Where grievous
hurt is caused by a lethal weapon, it is punishable under Section 326 and
is a more aggravating form of causing grievous hurt than the one punishable
under Section 325. Under Section 326 the maximum punishment is imprisonment
for life and the minimum can be one day’s imprisonment and fine. Where a
person by a lethal weapon causes a slight fracture of one of the un-
important bones of the human body, he would be as much punishable under
Section 326, Indian Penal Code as a person who with a knife scoops out the
eyes of his victim. It will be absurd to say that both of them, because
they are liable under the same section should be given the same punishment.
Hence too, any attempt to lay down standards why in one case there should
be more punishment and in the other less punishment would be an impossible
task. What is thus true with regard to punishment imposed for other
offences of the Code is equally true in the case of murder punishable under
Section 302, Indian Penal Code. Two alternate “sentences are provided one
of which could be described as the maximum and the other minimum. The
choice is between these two punishments and as in other cases the
discretion is left to the Judge to decide upon the punishment in the same
manner as it does in the case of other offences, namely, balancing the
aggravating-and mitigating circumstances. The framers of the Code attempted
to confine the offence of murder within as narrow limits as it was possible
for them to do in the circumstances. All culpable homicides were not made
punishable under Section 302, Indian Penal Code. Culpable homicides were
divided broadly into two classes : (1) culpable homicide amounting to
murder and (2) culpable homicide not amounting to murder. Culpable homicide
which fell in the one or the other of the four strictly limited categories
described in Section 300, Indian Penal Code amounted to murder unless it
fell in one of the five exceptions mentioned in that section, in which case
the offence of murder was reduced to culpable homocide not amounting to
murder. Any further refinement in the definition of murder was not
practicable and therefore, not attempted. The recent experience of the
Royal Commission referred to above only emphasizes the extreme difficulty.
The Commission frankly admitted that it was not possible to prescribe the
lesser punishment of imprisonment for life by redefinition of murder or by
dividing murder into degrees. It conceded that no formula was possible that
would provide a reasonable criterion for the infinite variety of
circumstances that may affect the gravity of the crime of murder. That
conclusion forced the Commission to the view that discretionary judgment On
the facts of each case is the only way in which they can be equitably
distinguished. See para 595 of the Commission’s Report.
26. In India this onerous duty is cast upon Judges and for more than a
century the judges are carrying’ out this duty under the Indian Penal Code.
The impossibility of laying down standards is at the very core of the
Criminal law as administered in India which invests the Judges with a very
wide discretion in the matter of fixing me degree of punishment. The
discretion in the matter of sentence is, as already pointed out, liable to
be corrected by superior courts. Laying down of standards to the limited
extent possible as was done in me Model Judicial Code would not serve the
purpose. The exercise of judicial discretion on well-recognised principles
is, in the final analysis, the safest possible safeguards for the accused.
Bachan Singh v. State of Punjab, [1989] 2 SCC 684
“209. There are numerous other circumstances justifying the passing of the
lighter sentence; as there are countervailing circumstances of aggravation,
“We cannot obviously feed into a judicial computer all such situations
since they are astrological imponderables in an imperfect and undulating
society.” Nonetheless, it cannot be over-emphasised that the scope and
concept of mitigating factors in the area of death penalty must receive a
liberal and expansive construction by the courts in accord with the
sentencing policy writ large in Section 354(3). Judges should never be
bloodthirsty. Hanging of murderers has never been too good for them. Facts
and figures, albeit incomplete, furnished by the Union of India, show mat
in the past, courts have inflicted the extreme penalty with extreme
infrequency-a fact which attests to the caution and compassion which they
have always brought to bear on the exercise of their sentencing discretion
in so grave a matter. It is, therefore, imperative to voice the concern
that courts, aided by the broad illustrative guidelines indicated by us,
will discharge the onerous junction with evermore scrupulous care and
humane concern, directed along me highroad of legislative policy outlined
in Section 354(3), viz., that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates resistance to
taking a life through law’s instrumentality. That ought not to be done save
hi the rarest of rare cases when the alternative option is unquestionably
foreclosed.
During hearing of this case it was stated at the bar that the appellant
Kishori was allegedly involved in several incidents which gave rise to
seven cases, four of which ended in his acquittal and in the remaining 3
cases he was convicted and sentenced to death. One such case was decided by
this Court by me Judgment rendered on 1.12.98 in Crl. Appeal No. 147/98
with Crl. Appeal No. 148/98 Kishori v. State of Delhi, [1999] 1 SCC 148, In
that case a Bench of two learned Judges of this Court took me view that on
totality of circumstances that was not a case where the courts below should
have imposed capital punishment; this Court reduced the sentence from
capital punishment to life imprisonment. Considering the question as to the
circumstances in which capital punishment can be imposed this Court took
note of the decisions in-Macchi Singh v. State of Punjab, [1983] 3 SCC 470;
Ajmer Singh v. State of Punjab, [1977] 1 SCC 659; State of U.P. v. Bhoora,
[1998] 1 SCC 128; Hardayal v. State of U.P. [ 1976] 2 SCC 812; Balraj v.
State of U.P., [1994] 4 SCC 29; Kesar Singh v. State of Punjab, [1974] 4
SCC 278; Ediga Canamma v. State of A.P. [1974] 4 SCC 443; Shivaji Genu
Mohite v. State of Maharashtra, [1973] 3 SCC 219; Sarwan Singh v. State of
Punjab, [1978] 4 SCC 111 and Shankar v. State of T.N., [1994] 4 SCC 478.
This Court made the following observations:
“The law is well settled by reason of the decisions of this Court as to the
circumstances in which capital punishment can be imposed. It is held
therein that capital punishment can be imposed in the rarest of the rare
cases and if there are any aggravating circumstances such as the accused
having any criminal record in the past, the manner of committing the crime,
delay in imposing the sentence and so on. In the present case, the
prosecution case, as unfolded before the Court indicates that the riot in
Delhi broke out as a result of the death of Smt. Gandhi and her death
appears to be the symbol or web around which the violent emotions were
released. The death of Smt. Gandhi became a powerful symbolic image as a
result of which the crowds were perpetrating violence in the height of
frenzy. It is common experience that when people congregate in crowds,
normal defences are lowered so that the crowd instinct assaults on the
sense of individuality or transcends one’s individual boundaries by
offering a release from inhibitions from personal doubts and anxiety. In
such a situation, one can well imagine that a member of such a group loses
one’s self and the normal standard or sense of judgment and reality. The
primary motivational factor in the assembly of a violent mob may result in
the murder of several persons. Experts in criminology often express mat
when there is a collective action, as in the case of a mob, there is a
diminished individual responsibility unless there are special circumstances
to indicate that a particular individual had acted with any
predetermination such as by use of a weapon not normally found. If,
however, a member of such a crowd picks up an article or a weapon which is
close by and joints the mob, either on his own volition or at the
instigation of the mob responding to the exhortation of the mob, playing no
role of leadership, we may very well say that such a person did not intent
to commit all the acts which a mob would commit left to himself, but did so
under the influence of collective fury. All the witnesses in this case
speak that there was a mob attack resulting in the death of the three
persons. Though the appellant is stated to be responsible for inflicting
certain knife injuries yet it is not clear whether those injuries
themselves would have been sufficient to result in the death of the
deceased. In the absence of any medical evidence in these cases, it has
become very difficult to draw any inference as to the injuries inflicted by
the appellant We are conrious of the fact that when an accused person is
charged with and offence not only under Section 302 IPC but also read with
Section 34 IPC or Section 149 IPC, the culpability of such an accused
resulting in the death of the person will not be less that of homocide
amounting to murder. But what we are weighing now is whether such
culpability is of such a nature which should result in capital punishment
to the accused.
It is no doubt true that the high ideals of the Constitution have to be
borne in mind, but when normal life breaks down and groups of people go
berserk losing balance of mind, the rationale that the ideals of the
Constitution should be upheld or followed, may not appeal to them in such
circumstances, nor can we expect such loose heterogeneous group of persons
like a mob to be alive to such high ideals. Therefore, to import the ideas
of idealism to a mob in such a situation may not be realistic. It is no
doubt true that courts must be alive and in tune with the notions prevalent
in the society and punishment imposed upon an accused must be commensurate
with the heinousness of the crime. We have elaborated earlier in the course
of our judgment as to how mob psychology works and it is very difficult to
gauge or assess what the notions of society are .in a given situation.
There may be one section of society which may cry for a very deterrent
sentence while another section of society may exhort upon the court to be
lenient in the matter. To gauge such notions is to rely upon highly
slippery imponderables and, in this case, we cannot be definite about the
views of society.
We may notice that the acts attributed to the mob of which the appellant
was a member at the relevant time cannot be stated to be a result of an
organized systematic activity leading to genocide. Perhaps, we can
visualise that to the extent there was unlawful assembly and to the extent
that the mob wanted to teach a sterr, lesson to the Sikhs, there was some
organisation; but in that design, that they did not consider that women and
children should be annihilated which is a redeeming feature. When an
amorphous group of persons come together, it cannot be said that they
indulge in any systematic or organized activity. Such group may indulge in
activities and may remain cohesive only for a temporary period and
thereafter would disintegrate. The acts of the mob of which the appellant
was a member cannot be stated to be the result of an organisation or any
group indulging in violent activities formed with any purpose or scheme so
as to call an organised activity. In that sense, we may say that the acts
of the mob of which the appellant was a member was only the result of a
temporary frenzy which we have discussed earlier. He did not play the role
of a leader of the mob as noticed earlier;”
On perusal of the judgment of the trial court and the High Court and the
evidence of the eye witnesses we find that the incident giving rise to the
present case took place in the circumstances similar to those in Kishori v.
State of Delhi (supra). We are also satisfied that the discussion and the
observations made by this Court in that case apply with equal force in the
present case. We are in respectful agreement with the principles discussed
therein.
On the totality of the circumstances, we are of the opinion that this is
not a case which can be called `a rarest of rare cases’ which warrants
imposition of maximum punishment of capital sentence. Therefore, while
confirming the conviction of the appellant on the charges framed against
him we reduce the sentence from capital punishment to the life
imprisonment. With this modification the appeal stands dismissed.