CASE NO.: Appeal (crl.) 224 of 1999 PETITIONER: OM PRAKASH RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 22/02/1999 BENCH: K.T. THOMAS & M.B. SHAH JUDGMENT:
JUDGMENT
1999 (1) SCR 794
The Judgment of the Court was delivered by
SHAH, J. Leave granted.
At the time of admission of this matter, the Court had issued notice
limited to the question of sentence only. Hence, the question involved in
this appeal is whether death sentence imposed requires to be confirmed on
the ground that it is the rarest of the rare cases? Whether sentence of
imprisonment for life would be inadequate? This is a case in which per-
sistent disputes over a small house in a village between two neighbours and
inaction by the authority (despite repeated prayers), led to this case of
gruesome murders of seven persons, some totally innocent.
Before dealing with the contentions raised by the learned Counsel for the
appellant, we would first refer to a few facts. It is a prosecution version
that on 28th January, 1990, Chater Singh (P.W. 4) along with his wife
deceased Smt. Daya Kaur was sleeping at his house and his brother Satbir,
his wife Smt. Kamlesh and mother Smt. Khazani (deceased) were sleeping at
the house of Satbir while inside the house of Satbir, Satbir and two male
progeny of Chater Singh, Aman Kumar and Mohinder and one male progeny
Surender of Hawa Singh (P.W. 5) were sleeping. Around 4.00 a.m., Chater
Singh saw torch light emanating from the window of his house, upon which he
and his wife got up from their cots and saw Parma Nand accused holding a
torch in his hand and Ajit Singh accused (since dead) standing by his side
holding a gun. Ajit Singh fired a shot from his gun, which hit the breast
of Smt. Daya Kaur who fell down and met her doom. He raised an alarm,
whereafter Ajit Singh accused entered his house from the rear door and
fired at Chater Singh from his gun which hit the fingers of his right hand.
Chater Singh caught hold the barrel of the gun but Ajit Singh got it freed
and handed over his weapon to Om Prakash accused present in the court yard
of the house. It is stated that one other person not known to Chater Singh
was also present in the street. Thereafter all the four reached the house
of Satbir followed by Chater Singh and Hawa Singh and there accused Om
Prakash fired from his gun hitting Smt. Kamlesh wife of Satbir and Smt.
Khazani who succumbed to the injuries. Thereafter, the assailants headed
towards the house of Satbir where Chater Singh and Hawa Singh had already
reached. At that place, Om Prakash fired indiscriminately from the gun and
shot dead Satbir, Mohinder, Aman Kumar male progeny of Chater Singh and
Surender son of Hawa Singh (P.W. 5). It is stated that after committing the
gruesome murder of 7 persons accused Parma Nand made out that they had
taken the revenge regarding the plot in dispute and dared anybody to
confront them at the risk of elimination. All the accused thereafter fled
away with their weapon of offence. After departure of the accused, many
persons collected. Leav-ing Hawa Singh at the spot, Chater Singh rushed to
the Police Station, Sampla and lodged F.I.R. at Ex. PJ at 7.30 a.m. During
investigation, weapon of offence, that is, S.L.R. (self loading rifle)
which the accused Om Prakash surrendered with the BSF authorities, where he
remained posted, was collected and was sent to the Bureau, Forensic Science
Lab. Mad-huban alongwith empties and bullets lifted from the scene of
occurrence. After completion of the investigation, accused were
chargesheeted for the offence punishable under Sections 302, 307 read with
Section 34 of l.P.C. Prior to trial, accused Ajit Singh had expired. In
Sessions Case No. 341/90, the learned Sessions Judge, Rohtak by Judgment
and Order dated 29th March, 1997 convicted the accused Om Prakash and
Parmanand under section 302/307/452/506 read with Section 34 l.P.C. and
under section 25 of the Arms Act after appreciating the evidence in detail.
The learned Sessions Judge observed that mitigating circumstances culled
out by the learned Defence Counsel cannot save the convict Om Prakash from
the gallows, in case, the order of sentence is confirmed by the High Court
because on that ill-fated morning of 28.6.90, around 4.00 a.m., the bullets
clawed through the aged (Khazani, 77 years) and middle aged (Daya Kaur, 40
years), the young (Satbir 28-29 years, Kamlesh, 22 years) and the
adolescent (Surender 16-17 years) and two boys below their teens (Aman
Kumar and Mohinder aged 9/11-12 years). The attempt was to wipe out the
entire family of Mange Ram, both male and female. Victims were sleeping,
defenceless. Firing was restored to without any provocation to wreck
vengeance over the dispute of a plot, which had been amicably settled with
the intervention of relatives and friends, though accused Om Prakash had
not relished the same. The children of Satbir Singh deceased were rendered
orphan because he and his wife Kamlesh fell to the bullets (one of the
survivor was a girl aged about six months). Lot of deliberations, pre-
meditation and planning had gone in the commission of the crime. It was
absolutely devilish and dastardly. The weapon which was meant to beat back
the intruders from the Indian Territory, was used to wreck personnal
vendetta. So, in respect of Om Prakash accused, the case falls within the
category of “rarest of rare cases”. With regard to the co-accused Parma
Nand, the learned Sessions Judge convicted and sentenced him to undergo
imprisonment for life and to pay a fine of Rs. 2,000, in default of payment
of fine to undergo R.I. for two years. Conviction and sentence order is as
under :
Om Prakash Accused.
Under Section 302 IPC, for committing the murder of Khazani, Kamlesh,
Satbir, Mohinder, Aman Kumar & Surender
Sentenced to death.
Under Section 302/34 IPC, for the murder of Daya Kaur Committed by Ajit
Singh.
To undergo imprisonment for life and to pay a fine of Rs. 2000 and in
default of payment of fine, to undergo R.I. for two year
Under Sec. 307/34 IPC for the injuries caused by Ajit Singh to Chater Singh
with an intention to cause his death.
To undergo imprisonment for life and to pay a fine of Rs. 1000 and in
default of payment of fine to undergo R.I. for one year.
Under section 27(3) Of the Arms Act, 1959.
Since the S.L.R. bearing butt No. 362 and body No. W 7522 is a prohibited
Arm and the prohibited ammunition was used in causing the murder of
Khazani, Kamlesh, Satbir, Mohinder, Aman Kumar and Surender, accused Om
Prakash is sentenced to death. Parma Nand Accused.
Under Section 302/34 IPC for the murder of Khazani, Kamlesh, Satbir,
Mohinder, Aman Kumar, Surender and Daya Kaur.
To undergo imprisonment for life and to pay a fine of Rs. 2000 and in
default of payment of fine to undergo R.I. for two years.
Under Section 307/34 IPC, for causing injuries to Chater Singh by Ajit
Singh.
To undergo imprisonment for life and to pay a fine of Rs. 1000 and in case
of default of payment of fine, to undergo R.I. for one year.
On appeal, after appreciating the entire evidence, the High Court of Punjab
and Haryana in Criminal Appeal No. 343/DB of 1997 confirmed the conviction
of the accused.
Learned counsel for the appellant submitted that finding given by the High
Court while confirming the death sentence requires to be set aside because
the Court has considered only one side of the picture and has not
appreciated the reasons which drove the appellant to this dastardly act. It
has been pointed out that High Court has observed that appellant was a
member of the Border Security Force and prior to present occurrence had no
serious dispute with the complainant party but for the matter pertaining to
the plot in question has belied the trust that the armed force had put in
him by betraying an utter lack of discipline; the murders were committed
with pre-meditation and in a thought out manner as would be reflected in
the letter Ex. PX and the fact that he had absconded on 27th June, 1990
from his unit and had returned after having committed the crime. It was a
cold-blooded attack on 7 persons of a family, most of them being women and
children who had given no provocation to the accused and had caused him no
harm; an attack had been at the dead of night while they lay asleep; an
attack had been made despite the compromise that had been entered into
between Suraj Brian, father of the accused and Chater Singh and others; it
appeared that murders were committed with a positive intention of wiping
out the families of Chater Singh and Hawa Singh. The Court after
considering the decision rendered in the case of Suraj Bhan v. State of
Rajasthan, [1996] S.C.C. (Criminal) 1314 held that the court must respond
to the cry of society and to settle what would be a deterrent punishment
for what was an apparently abominable crime.
It is true that Court must respond to the cry of the society and to settle
what would be deterrent punishment for abominable crime. It is equally true
that large number of criminals go unpunished thereby increas-ing criminals
in the society and law-loosing it deterrent effect. It is also truism as
observed in the case of State of M.P. v. Shyamsunder Trivedi and Others,
reported in [1995] 4 SCC 262 at p. 273 that the exaggerated adherence to
and insistence upon the establishment of proof beyond every reasonable
doubt, by the prosecution, ignoring the ground realities, the fact-
situation and the peculiar circumstances of a given case often results in
miscarriage of justice and makes the justice delivery system a suspect; in
the ultimate analysis the society suffers and a criminal gets encouraged.
Sometimes it is stated that only rights of the criminals are kept in mind,
the victims are forgotten. Despite this it should be kept in mind that
while imposing the rarest of rare punishment, i.e. death penalty, the Court
must balance the mitigating and aggravating circumstances of the crime and
it would depend upon particular and peculiar facts and circumstances of
each case.
Dealing with this aspect in the case of Shankar v. State of Tamil Nadu,
[1994]4 SCC 478 (para 50) this Court has observed as under :
“The choice as to which of the two punishments provided for murder is the
proper one in a given case will depend upon the particular circumstances of
the case and the Court has to exercise its discretion judicially and on a
well-recognised principles after balancing all the mitigating and
aggravating circumstances of the crime. The Court also should see whether
there is something uncommon about the crime which renders sentence of
imprison-ment of life inadequate and calls for death sentence. The nature
of the crime and the circumstances of the offender should be so revealing
that the criminal is a menace to the society and the sentence of
imprisonment of life would be inadequate. The sen-tence of death should be
reserved for the rarest of rare cases alter a due consideration of both
mitigating and aggravating circumstan-ces. What circumstances bring a
particular case under the category of rarest of rare cases vary from case
to case depending upon the nature of the crime, weapons used and the manner
in which it is perpetrated etc.”
In the aforesaid case, the Court referred to an earlier Full Bench decision
of this Court rendered in the case of Bachan Singh v. State of Punjab,
[1980] 2 SCC 684 wherein the Court after referring to aggravating
circumstances (para 202), the Court held that following mitigating cir-
cumstances (para 206) are undoubtedly relevant circumstances and must be
given weightage in determination of sentence :
(1) The age of the accused. If the accused is young or old, he shall not
be sentenced to death,
(2) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(3) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the
conditions (3) and (4) above.
(4) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the of-fence.
(5) That the accused acted under the duress or domination of another
person.
(6) That the condition of the accused showed that he was men-tally
defective and that the said defect impaired his capacity to appreciate the
criminality of his conduct.”
The Court further observed
“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 con-struction by the courts in accord with the
sentencing policy writ large in Section 354(3). Judges should never be
bloodthirsty. Hang-ing of murderers has never been too good for them. Facts
and figures, albeit incomplete, furnished by the Union of India, show that
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 function to evermore scrupulous care and humane
concern, directed along the highroad of legislative policy outlined in
Section 354(3), viz., that for an exception.”
Hence it is settled law that sentence of death should be reserved for
rarest of the rare cases where sentence of imprisonment of life would be
inadequate. In each case for finding out whether it is rarest of the rare
cases, the Court has to balance the aggravating and mitigating circumstan-
ces. From the evidence on record, it is apparent that the accused had
committed gruesome murders of innocent persons. There is no doubt that it
is pre-meditated and in a well thought out manner. He was also a member of
Para Military Force. As against this, it is also on record that he has not
committed any offence on any previous occasion. At the relevant time in
1990 when the incident took place, he was 23 years old. In this background,
if we refer to the evidence on record produced by the prosecution which is
in the form of applications (letters) written by the appellant-accused to
the authorities and to his brother Parma Nand, it would reveal the
background in which accused appellant was under ex-treme mental disturbance
which lead him commit serious crime. We may mention that these
applications/letters are used by the prosecution for establishing the
motive behind the crime but, at the same time, court overlooked the serious
agony suffered by the accused which is revealed in applications. First
application dated 22nd March, 1990 is written to the Deputy Commissioner,
Rohtak for protection of his family members from the respondents and
restrictioning them from encroaching on their plot. The application, inter
alia, reads as under : “On 2.2.90 the applicant went on leave to his
village at the ailment of his father. At that time the respondents raised
the matter & warranted me that he could go on his duty after-lifting the
encroachment from the plot. The opposite party have three time family
members to us. They are strong headed rich persons. Seeing the opposition
very strong, the applicant felt that the efforts would go useless. He
called a panchayat to sortout the matter. The Panchayat also said that the
plot was the property of applicant and the respondents were encroaching it
illegally. The respondent’s did not accept the decision of Panchayat. After
my return at duty, the opposite party attacked on my family. They wanted to
kill my whole family. My family like parents, brothers & the wives of my
brothers except my younger sister, received grievous injuries. The
applicant was told by his brother about the feud on 19.3.90. His brother
returned on 20.3.90 after telling the whole talks. My father & brothers
were got locked up in the police station Sampla by conniving with the
officials. The applicant’s party tried his best to lodge the FIR againsl
the opposite party but in vain. After the struggle a cross case was
entered. Now both side are on bail. The family of applicant is harassed by
this way. They are giving open threat that if they would not hand over the
possession of the plot they could be killed. The family of applicant
hesitate to come out from their houses due to the fear of opposite party.
In such
circumstances I feel ….. to do my duty & 1 consider that I shall
lose my balance of mind. Hence the action be taken against the opposite
party & a direction be issued to protect my family & property. If it is not
done his family can be ruined.”
The next application dated 2.4.90 is written by the appellant to the
Superintendent of Police (S.P.), Rohtak. In that application, appellant has
requested S.P. Rohtak to take action against Chater Singh, Hawa Singh,
Satbir Singh, Rajbir and Suresh. The relevant part of the application is as
under :-
“I am serving in B.S.F. My father Sh Suraj Bhan and my younger brother live
in village Samchana P.S. Sampla. Now-a-days, I am on leave. I have one ghar
which is a ancestral property and surrounds of walls and we keep luggage in
it. Chatter Singh, Hawa Singh, Satbir, Rajbir and Suresh s/o Sh. Mange Ram
and their sons want to take possession forcibly of our ghar. So my father
had filed civil suit on 12.2.90 and stay order is granted for that Ghar. My
father is an old man and we are alone. But the family members of Chattar
Singh are strong persons. These persons interfered in our possession
inspite of stay order and they want to possess forcibly our ghar. We had
already filed an application before you, and you have marked it to the SHO
vide No. 601 SPR dated 29.3.90, but no action has been taken against them
up till now. The above noted persons and their sons namely Krishan, Dilbag
s/o Chhattar Singh, Surinder s/o Hawa Singh harass us. They always keep
ready for quarrel and they are bent upon to possess forcibly our ghar”.
Thereafter, there is another application Ex. PV/3 dated 20.3.1990 written
to the S.P. Rohtak which, inter alia, recites as under :
“I joined my duty on finishing my leaves. I went to do my duty. I am
serving in B.S.F. My younger brother and an old father live in village
house. My mother and my wife were attacked seriously and they were trying
to possess the above said Ghar. The accused are as under :
1. Chatter Singh 2. Hawa Singh 3. Satbir Singh 4. Rajbir Singh 5. Suresh
s/o Sh. Mange Ram 6. Krishan 7. Dilbag s/o Sh. Chatter Singh 8. Gurinder
s/o Sh Hawa Singh and remaining persons of their family. After that my
father lodged the report to the SHO P.S. Sampla for restraining them to
possess the plot. But the SHO did not take any action; conniving with the
accused, the SHO confined my brother & father instead of them. They were
threaten by dire consequences and they demanded five thousands as ransom we
are unable to arrange the money. So no action has been taken against those
culprits. I come on leave for two months in a year. They do not let me
remain peacefully and they harass us on the one pretext or other. There is
no solace in our houses. It is very difficult to come out from the house.”
(Emphasis added)
The next application Ex. PV/10 dated 15th May, 1990 written to S.P. Rohtak,
inter alia, reads as under :
“On 11.5.90 in the morning time when our sister and the wives of our
brothers went to throw dung in the morning in our ghar at that time,
suddenly accused came out and attacked upon them and they inflicted
grievious injuries to them with their jaili and lathies. The accused
inflicted grievous injuries to the wife of my younger brother, who has a
foetus of seven months in her stomach. She is in dangerous condition and
admitted in Ward No. 2 of MCH Rohtak. We had lodged the report in Police
Station Sampla about that matter. The accused stayed for two days in the
police Station and then they were released and no action was taken against
them. These persons are giving threats after their release.
So, it is requested that legal action be taken against the accused so that
my life and property may be protected from those persons and justice be
done.”
Lastly, we would refer to the letter dated 21st June, 1990 written to his
brother Parma Nand which is reproduced in paragraph 61 of the Judgment
rendered by the Learned Sessions Judge. The incident took place on 28th
June, 1990 and the said letter was written a week prior to the occurrence.
It is true that this letter reveals that appellant was drawing concrete
action against the complainant party. But from the letter, it appears that
appellant was deeply annoyed, may be because as stated in the letter “We
had taken ourselves dead when they had attacked our women-folk and sister.”
It also reveals that the act of the appellant was pre-planned. This letter
no doubt reveals the mind of the appellant accused to the effect that he
has decided to take revenge and was planning to take a concrete step in
that behalf and that he was keeping it secret. In the said letter, he has
further written that at best, it would take 15 days for him for taking
action and “If we are to die, let this thing happen. If possible, give a
prompt reply and write which wall they were demolishing. Takes heed of what
I have written”.
Learned Counsel for the appellant submitted that High Court as well as the
Sessions Court ought to have referred to all the letters/applications
written by the appellant and not only the last letter written by him to
find out the motive and the well thought out manner in which murders were
committed. It is his contention that aforesaid applications written by the
appellant to the authorities reveal that the accused was compelled to
resort to the crime because he and his family members were finding
helpless. This submission of the learned counsel for the appellant requires
to be accepted. From the aforestated applications to S.P. Rohtak or Commis-
sioner, it appears that accused was all throughout feeling that he and his
family members were humiliated by the other party who were rich and
influential and who were intending to grab the plot/Ghar beloging to them.
Applications reveal that appellant accused was feeling much more hurt
because family members of the appellant including women-folk were not
getting any police protection even though they were assaulted. It has been
pointed out in the application that his younger brother’s wife having seven
months pregnancy was assaulted and she was required to be hospitalised. It
also reveals that for a period of more than three months appellant was
requesting the authorities to take action so that he and his family members
can live in peace. It was his allegation that the SHO of the Police Station
was conniving with the other side and had demanded five thousand rupees as
a ransom which their family members were unable to pay, therefore, no
action was taken against the other party. He has pointed out that Panchayat
has also arrived at the conclusion that the property belonged to his family
and yet other party was encroaching upon it. It was his grievance that
despite the stay order granted by the Civil Court, other party wanted to
take possession forcibly. The last letter written to his brother indicates
that wall of the house was demolished. It is also stated that even though
his parents, brothers, and wives of his brothers received grievous injuries
in the assault, yet they were locked up in the Police Station, Sampla
because of favour by the Officer. They tried to lodge the FIR against the
other party but it was in vain and after some struggle, cross cases were
registered and both the sides were released on bail. He has also stated
that in such situation, he may lose balance of mind. It appears that this
situation continued and on 11th May, 1990 further incident took place when
the accused inflicted injuries to the wife of younger brother of accused
having seven months pregnancy which resulted in these murders.
Considering the aforesaid background of the matter, the question would be
whether the case of the appellant could be one of the “rarest of the rare”
cases so that death sentence is required to be imposed. In our view, even
though this is a gruesome act on the part of the appellant, yet it is a
result of human mind going astray because of constant harassment of the
family members of the appellant as narrated above. It could be termed as a
case of retribution or act for taking revenge. No doubt, it would not be a
justifiable act at all, but the accused was feeling morally justifiable on
his part. Hence, it would be difficult to term it as the “rarest of the
rare” cases. Further this is not a crime committed because of lust for
wealth or women, that is to say, murders are neither for money such as
extortion, dacoity or robbery; nor even for lust and rape; it is not an act
of anti-social element kidnapping and trafficking in minor girls or of an
anti-social element dealing in dangerous drugs which affects the entire
moral fibre of the society and kills number of persons; nor is it crime
committed for power or political ambitions or part of organised criminal
activities. It is a crime committed by the accused who had a cause to feel
aggrieved for injustice meeted out to his family members at the hands of
the family of the other party who according to him were strong enough
physically as well as economically and having influence with the authority
which was required to protect him and his family. The bitterness increased
to a boiling point and because of the agony suffered by him and his family
members at the hands of the other party and for not getting protection from
the police officers concerned or total inaction despite repeated written
prayers goaded or compelled the accused to take law in his own hands which
culminated in gruesome murders; may be that his mind got derailed of the
track and went astray or beyond control because of extreme mental
disturbances for the constant harrassment and disputes. Further considering
the facts and circumstances, it cannot be said that he would be a menance
to the society; there is no reason to believe that he cannot be reformed or
rehabilitate and that he is likely to continue criminal acts of violence as
would constitute as continuing threat to the society. He was working in
B.S.F. as a disciplined member of the armed forces aged about 23 at the
relevant time, having no criminal antecedents.
In the result, we are of the view that this case cannot be treated as one
of the rarest of rare cases where lesser sentence of imprisonment of life
would not at all be adequate. Hence, we alter the sentence of death penalty
by awarding the sentence of imprisonment for life to the appellant. The
appeal is allowed to the aforesaid extent and stands disposed of
accordingly.