CASE NO.: Appeal (crl.) 178 of 2003 PETITIONER: Ram Pal RESPONDENT: Vs. State of U.P. DATE OF JUDGMENT: 06/08/2003 BENCH: N.Santosh Hegde & B.P.Singh. JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
In this appeal, while granting leave, this Court confined
the scope of the appeal to the consideration of the question of
sentence only.
The appellant along with seven others, who survived the
trial out of the eleven persons originally tried, were convicted
for offences punishable under Sections 302, 307 436 and 440
all read with Section 149 IPC. The trial court imposed varying
sentences on them, but in regard to appellant and one other
person, awarded the sentence of death and referred the said
sentence to the High Court of Judicature at Allahabad,
Lucknow Bench for confirmation. The High Court by the
impugned judgment has accepted the reference and confirmed
the death sentence awarded to the appellant but taking into
consideration the age of the other accused who was also
sentenced to death converted his sentence from death to life
imprisonment. In this appeal, the appellant questions the
sentence of death awarded to him on various grounds.
Mr. Rakesh Dwivedi, learned senior counsel appearing
for the appellant submitted that the crime of which the appellant
is charged with cannot be termed as a rarest of the rare cases
calling for extreme penalty of death even though 21 persons had
lost their lives due to the acts of the appellant and other accused
persons. He submitted that there was sufficient provocation
from the side of the victims which lead to the incident on the
fateful day because the victims party was earlier responsible for
the double murder of appellant’s close relatives in regard to
which the members of the said party were being prosecuted in a
sessions trial. Inspite of the said proceedings, on the day of the
incident another relative of the appellant by name Bhagwati
was found murdered which the appellant and his family
members had reasons to believe was due to the act of the family
of the victims. These facts according to the learned counsel was
the provocation for the murders for which the appellant is being
punished. Hence the facts of the case in hand did not call for the
extreme penalty of death. He also submitted that the appellant
was not the leader of the group of accused which caused the
death of so many victims nor he had exhorted others either to
kill or to set fire to the houses. His act was at the most on par
with the other accused who have been awarded lesser sentence.
He also submitted that even according to the prosecution case,
there was considerable doubt as to the role played by the
appellant in the incident in question, hence, he has been roped
in with the aid of Section 149 IPC. His further submission was
that the incident in question had taken place nearly 17 years ago
and eversince then the appellant has been in jail, therefore the
appellant should be given an opportunity of redeeming himself.
Shri Ravi Malhotra learned counsel appearing for the
State opposed the reduction of the sentence on the ground that
both the courts below have considered all aspects of the case
including the question of quantum of punishment and having
come to the conclusion that the incident in question which
caused the death of 21 innocent victims was a rarest of the rate
cases, considered the death penalty as the appropriate sentence
in regard to this accused, therefore, this is a case in which no
interference in the sentence awarded by the courts below is
called for.
We have carefully considered the argument addressed on
behalf of the parties. It is true the incident in question has pre-
maturely terminated the life of 21 people but then number of
deaths cannot be the sole criterion for awarding the maximum
punishment of death. While in a given case death penalty may
be the appropriate sentence even for a single murder, it would
not necessarily mean that in every case of multiple murders
death penalty has to be the normal punishment. Guidelines to
be borne in mind while awarding death sentences have been
considered and laid down by this Court in a number of cases
but for the purpose of deciding this appeal it would suffice if
we refer to a Constitution Bench judgment of this Court in the
case of Bachan Singh vs. State of Punjab (1980 2 SCC 684). In
the said case this Court after considering the constitutional
validity of the provisions which empowers the court to award
death sentence laid down the following broad guidelines to be
borne in mind by the courts while considering the question of
awarding a sentence in cases involving murder :
“One thing however stands clear that for
making the choice of punishment or for
ascertaining the existence or absence of “special
reasons” in that context, the court must pay due
regard both to the crime and the criminal. What is
the relative weight to be given to the aggravating
and mitigating factors, depends on the facts and
circumstances of the particular case. More often
than not, these two aspects are so intertwined that
it is difficult to give a separate treatment to each of
them. This is so because ‘style is the man’. In
many cases, the extremely cruel or beastly manner
of the commission of murder is itself a
demonstrated index of the depraved character of
the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the
circumstances of the criminal in two separate
watertight compartments……..
As to the aggravating circumstances, pre-
planned, calculated cold-blooded murder has
always been regarded as one of an aggravated
kind; so also a murder “diabolically conceived and
cruelly executed” and the test of Ediga Anamma :
“The weapons used and the manner of their use,
the horrendous features of the crime and hapless,
helpless state of the victim”.
In the said judgment this Court also laid down
circumstances which could be considered as aggravating
circumstances. These circumstances are as follows :-
(a) if the murder has been committed after
previous planning and involves extreme
brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the
armed forces of the Union or of a member of
any police force or of any public servant and
was committed –
(i) while such member or public servant
was on duty; or
(ii) in consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of
his duty as such member or public
servant whether at the time of murder he
was such member or public servant, as
the case may be, or had ceased to be
such member or public servant; or
(d) if the murder is of a person who had acted in
the lawful discharge of his duty under Section
43 of the Code of Criminal Procedure, 1973,
or who had rendered assistance to a magistrate
or a police officer demanding his aid or
requiring his assistance under Section 37 and
Section 129 of the said Code.”
Similarly it also considered the following circumstances
as mitigating circumstances :-
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is young
or old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(4) 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.
(5) That in the facts and circumstances of the case
the accused believed that he was morally
justified in committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that
he was mentally defective and that the said
defect impaired his capacity to appreciate the
criminality of his conduct.
Bearing in mind the above broad guidelines laid down by
this Court in the case of Bachan Singh (supra), if we consider
the facts of the case we notice the fact that the appellant was a
party to an incident in which 21 people including young
children were murdered by gun shot injuries or by burning them
in latched houses itself could be considered as aggravating
circumstances to consider awarding of death sentence.
According to the judgment in Bachan Singh’s case (supra), then
we will have to weigh the same with any mitigating
circumstances that may be available on the facts of this case.
While doing the said exercise of searching for mitigating
circumstances in the present case, we find the incident in
question was sequel to the murder of Bhagwati a close relative
of the appellant and other principal accused, which was
suspected to have been committed by the members of the
victims family. Prior to that the victims family was accused of
having committed the murder of 2 of the close relatives of the
appellant’s family for which some of the members of the
victims family were being prosecuted. On facts and
circumstances of this case, we think this circumstance can be
treated as a circumstance which amounts to a provocation from
the victims side. We also notice that the role played by the
appellant is somewhat similar to the role played by the other
accused persons who have been given lesser sentence while the
appellant has been awarded death sentence that too with the aid
of Section 149 IPC therefore, a question arises why this
appellant should not be considered at par with those accused for
the purpose of awarding the sentence. We also notice from the
argument of the learned counsel which is supported by material
on record, that the specific overt act attributed to the appellant
that he climbed the house of the informant and threatened to
shoot the victims if they came out of their houses, while the
other accused latched and set the houses on fire seems to be an
afterthought not having been told to the investigating officer by
the witnesses when their statements were recorded by him. We
also notice that the appellant was not treated by the prosecution
itself as the leader of the gang but was considered to be one
amongst other accused who took part in the incident. The fact
that accused has spent nearly 17 years in custody after the
incident in question can also be treated as a mitigating
circumstance while considering the question of sentence.
The above noted circumstances which we consider as
mitigating circumstances, in our opinion, outweigh the
aggravating circumstances as found by the courts below. In the
said view of the matter, we think it appropriate to allow this
appeal and in substitution of sentence of death awarded to the
appellant, we sentence the appellant under Section 302 read
with Section 149 IPC to undergo imprisonment for life. The
said sentence shall run concurrently with the substantive
sentence imposed by the trial court on other counts.
The appeal is allowed partly.