2023 INSC 990 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO S. 1381-1382 OF 2017

MADAN …APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1790 OF 2017

J U D G M E N T

B.R. GAVAI, J.

1. These appeals challenge the judgment and order

dated 22

nd February 2017, passed by the Division Bench of the

High Court of Judicature at Allahabad in Capital Case Nos.

3359 and 3520 of 2015 with Reference No. 9 of 2015 and

Criminal Appeal No. 3519 of 2015, thereby dismissing the

appeals filed by appellant Madan and another accused Ishwar;

whereas, it allowed in part, the appeal filed by appellant

Sudesh Pal. By the said judgment, the High Court confirmed

the judgment and order of conviction and sentence dated 31

st

2

July 2015 passed by the Court of Additional Sessions Judge,

Court No. 3, Muzzaffarnagar (hereinafter referred to as “trial

court”) in Sessions Case No. 09/2005 with Sessions Case No.

838 of 2005 and 10/2005, in respect of appellant – Madan,

while commuting the sentence of capital punishment to life

imprisonment in respect of appellant – Sudesh Pal.

2. Shorn of details, the facts leading to the present

appeals are as under:

2.1 The First Information Report (“FIR” for short) was

lodged on a written report given by informant Lokendra (PW-

1), on 14

th October 2003 at P.S. Babri, District Muzzafarnagar,

which was registered as Crime No. 197 of 2003, for offences

punishable under Sections 147, 148, 149, 302, 307, 323 and

452 of the Indian Penal Code, 1860 (hereinafter referred to as

“IPC”). The incident took place at 5.30 PM and the FIR came

to be registered on the same day at 7.40 PM.

2.2 The report was recorded by one, Naresh Pal s/o Vijay

Pal r/o village Barwala, District Baghpat on the oral report of

Lokendra (PW-1). According to the FIR, Smt. Vimla Devi, who

was the mother of Ram Kishan, cousin of Lokendra (PW-1),

was a candidate in the election for Gram Pradhan; whereas the

3

wife of one Arshad was the opposing candidate. On the one

hand, Lokendra (PW-1) supported the candidature of Vimla

Devi; whereas, the family of appellant Madan and Ram Bhajan

supported the candidature of the wife of Arshad. When Vimla

Devi came to be elected as Gram Pradhan along with Lokendra

(PW-1), who also came to be elected as a member of the Gram

Panchayat, appellant Madan and his family members bore a

grudge with Lokendra (PW-1) and others on account of the

feeling of jealousy.

2.3 The FIR states that on 14

th October 2003, at about

5.30 PM, when Satendra, the real brother of Lokendra (PW-1),

his nephew Sunil s/o Chandrapal, cousin Ram Kishan s/o

Narain Singh @ Lala, Sukhpal Singh (PW-2) s/o Lotan Singh

and his father Jai Singh (PW-8) s/o Ganga Ram were going to

the house of Up-Pradhan Rizwan s/o Irshad Khan (PW-7) for

discussing problems of the village, and had reached the house

of Rashid s/o Mustafa, appellant Madan along with Rajveer,

Ram Bhajan, Ramveer, and Kanwar Pal who were the sons of

Ishwar along with Ishwar himself, who was the brother-in-law

(sala) of appellant Madan, also known as Pahalwan, appellant

Sudesh Pal, who was the real brother-in-law (sadu) of

4

appellant Madan along with Neetu, who was the nephew of

appellant Madan, armed with licensed guns, rifles and

country-made pistols came from behind and started firing

indiscriminately. As a result of the said firing, Satendra and

Sunil fell down on ‘Khadanja’. When Masooq Ali s/o Abdul

Gaffur came out of his house upon hearing the sound of

gunfire, the accused persons shot fire at him due to which he

also fell down. Following which, Ram Kishan and Sukhpal

Singh (PW-2) ran away to save their lives. Ram Kishan

thereafter entered into the house of the Up-Pradhan Rizwan.

2.4 It is further stated in the FIR that the accused persons

thereafter entered the house of Up-Pradhan Rizwan and fired

shots at Ram Kishan, Rizwan and Rihan. They also fired shots

at Sukhpal Singh (PW-2). Ram Kishan, Sunil and Satendra

died on the spot. When Mumtaz Khan (PW-5) s/o Imtyaz

reached at the place of incident, the accused persons fired

shots at him as well. The accused persons further assaulted

Jai Singh (PW-8), father of Lokendra (PW-1) with the ‘butt’ of

the gun who then ran away to save his life. Following which,

when the villagers were taking Rizwan, Rihan, Masooq Ali,

Sukhpal Singh (PW-2) and Mumtaz Khan (PW-5) to the

5

hospital; Rizwan, Rihan and Masooq Ali succumbed to their

injuries and died on the way and their bodies were accordingly

kept in their houses. When the accused persons were firing at

the place of the incident, Ram Pal s/o Salet, Sudhir (PW-11)

s/o Mahendra, Anil (PW-3) s/o Chandrapal, Mahesh Pal (PW-

4) s/o Prahlad, Harpal Singh (PW-10) s/o Dhara, Mahipal s/o

Atal Singh along with other villagers reached and saw the said

incident. Lokendra (PW-1) also reached the place of the

incident and witnessed the incident with his own eyes and

requested to register the report and take legal action.

2.5 The FIR was registered and the investigation was

subsequently taken over on 14

th October 2003 by Mr.

Raghunandan Singh Bhad auria (PW-24), who was the then

Station House Officer (for short ‘SHO’). He recorded the

statement of Lokendra (PW-1) and proceeded to the place of

the incident in front of the house of Rashid s/o Mustafa where

he found the dead bodies of Satendra, Jai Singh (PW-8) and

Sunil in a pool of blood. The dead body of Masooq Ali s/o Abdul

Gafoor was on the cot in his house. When he reached th e

house of Rizwan, where he found the dead bodies of Rizwan

and Rihan s/o Irshad Khan (PW-7) lying on the cot, whereas

6

the body of Ram Kishan s/o Narain Singh was found lying in

a pool of blood in the veranda of the said house. Upon

inspection of the place of the incident, Raghunandan Singh

Bhadauria (PW-24) found empty cartridges near the dead body

which were taken into possession. Three empty cartridges of

12 bore 9 mm were found and taken into possession in the

presence of witnesses Anil Kumar (PW-3) s/o Chandrapal Jat

and Sri Dheer Singh s/o Prahlad Singh. The recovery memo

(Ext. Ka – 2) was accordingly prepared and signed. He then

took plain and blood-stained mud from the spot in the

presence of the said witnesses. The recovery memo for the

same was prepared and kept sealed in two separate containers

(Ext. Ka-3). He also collected plain and blood-stained mud

from where the bodies of Rizwan, Rihan and Ram Kishan were

lying and a recovery memo (Ext. Ka – 6) was prepared to that

effect. Further, empty cartridges of 12 bore 9 mm, 5 bullets

along with another such bullet were recovered and taken into

custody which were then sealed in the presence of the

witnesses. However, Raghunandan Singh Bhad auria (PW-24)

could not recover the blood-stained mud from the place where

Masooq Ali, Rizwan and Rihan fell down and were

7

subsequently taken to the hospital due to the movement of

persons at the place of occurrence.

2.6 The Investigating Officer then recorded the statement

of other witnesses after which he inspected the place of the

incident and prepared the site plan. After panchayatnama of

the dead bodies, the same were sent for post-mortem

examination through Head Constable Surendra Singh, Head

Constable Ram Kumar, Constable Yashpal and Constable

Satya Prakash. After Raghunandan Singh Bhad auria (PW-24)

was transferred, the investigation was taken over by Surajpal

Singh (PW-23), SHO on 18

th October 2003. He took steps to

execute non-bailable warrants issued against the accused

persons and also took steps to initiate proceedings under

Sections 82-83 of the Code of Criminal Procedure , 1973

(hereinafter referred to as “Cr.P.C.”). After the copies of the

post-mortem report were obtained, the same were noted and

enclosed with the C.D. of the deceased Ram Kishan, Masooq

Ali, Rizwan, Rihan, Satendra and Sun il. Statements of

witnesses Sudhir (PW-11), Harpal Singh (PW-10), Mahesh Pal

(PW-4), and Mahipal were recorded at village Butrada .

Surajpal Singh (PW-23) also recorded the statements of Rashid

8

Sachdev and Ram Mehar, who were the witnesses of the

panchayatnama. During investigation, Surajpal Singh (PW-23)

received information that one co-accused, who was involved

along with the accused persons named in the FIR had died in

the same incident and his body was taken away by the accused

persons and the same was found and recovered from the jungle

(agricultural field) of village Pinana regarding which, Case

Crime No. 799 of 2003 was registered at P.S. Kotwali, for

offences punishable under Sections 302 and 201 of IPC.

Surajpal Singh (PW-23) thereafter recorded the statements of

other witnesses and also raided the house of the accused

persons.

2.7 Thereafter, investigation was transferred and taken

over on 21

st December 2003 by Inspector Adesh Kumar

Sharma (PW-20), EOW, Meerut. Accused persons Ishwar and

Kunwar Pal were taken in police remand. He then proceeded

to the place of the incident along with police personnel for the

recovery of weapon; whereupon, a country-made pistol and the

gun used in the incident were recovered at the instance of

accused persons Ishwar and Kanwar Pal. Further, one empty

cartridge was found in the gun whereas one empty cartridge

9

of 9 mm was found in the country-made pistol. Both the fire-

arms were in operating condition and the Recovery Memo for

the gun and the country-made pistol were prepared and sealed

in two separate clothes. Following which, panchayatnama was

prepared by Sub-Inspector Surendra Singh (PW-16) with

regards to the three deceased, namely, Masooq Ali, Rihan and

Rizwan. Additionally, panchayatnama and inquest reports

with regards to the deceased, namely, Ram Kishan, Satendra

and Sunil were prepared by another Sub-Inspector.

2.8 Subsequently, the investigation was transferred and

handed over to Bahadur Singh Chauhan, the then C.B.C.I.D.

(PW-17) on 13

th January 2004 by the orders of higher

authority. Bahadur Singh Chauhan (PW-17) recorded the

statement of Lokendra (PW-1), inspected the place of the

incident and accordingly prepared a site plan. The statements

of other witnesses were also recorded. Bahadur Singh

Chauhan (PW-17) thereafter recorded the statements of earlier

investigating officers in C.D.

2.9 Subsequently, the investigation was again transferred

from C.B.C.I.D. to the civil police. After the chargesheet was

submitted by Bahadur Singh Chauhan (PW-17) against

10

appellant Madan along with other accused persons, namely,

Kanwar Pal and Ishwar; the investigation was taken over by

the then S.H.O. P.S. Babri, Siddh Narayan Yadav on 18

th

October 2004 who was examined as PW-19. Siddh Narayan

Yadav (PW-19) submitted the chargesheet against appellant

Sudesh Pal and another accused person who was absconding

at the time. Siddh Narayan Yadav (PW-19) was the fifth IO of

this case and he also submitted a chargesheet against accused

Rajvir along with other accused persons.

2.10 The post-mortem of deceased Ram Kishan was

conducted by Dr. Arvind Kumar Aggarwal (PW -14) on 15

th

October 2013 at 12.50 PM. The injuries sustained by

deceased Ram Kishan are thus:

1. Wound of firearm 4 cm X 1.5 cm in depth of the

muscle in the right side off ace and aside of the

nose. Around the wound there were tattooing

in the area of 20 cm x 7 cm.

2. Wound of entering of 8 firearms 20 cm X 19 cm

towards left side of chest which was in deep

ranging from ½ cm X ½ cm from the surface of

the chest. Around the wound no blacking and

11

tattooing were present. One metal pellet was

taken out from the cavity of the chest.

3. Wound of entering of firearm ½ cm X ½ cm X

till the cavity of abdomen, towards left of

abdomen and 1 cm above of tunica crest.

4. Wound of entering of firearms towards right

side of the chest, 5 m away from the right side

nipple. As per position of 2 hrs. 1.5 cm X 1 cm

in deep in the cavity of the chest.

5. Wound of entering of firearm ½ cm X ½ cm in

deep of cavity of the abdomen, around 5 cm

away from the right side navel, in the position

of 8 hrs.

6. Mark of bruises towards the opposite of chest in

the area of 1.4 cm X 7 cm in right side of the

chest.

7. Wound of exit of firearm in the area of 33 cm X

21 cm, towards back side of the chest and was

in deep from 2 cm X 1.5 cm to 1cm X 1 cm in

the cavity of the chest.

12

8. Wound of entering of firearm 1.5 cm X 1 cm in

depth of the muscle, beneath knee on right

forearm.

9. Wound of exit of firearm 3.5 cm to 3 cm in depth

of the muscle in the mid of right side arm in the

correspondence of injury No. 8 which is wound

of entering of firearm.

10. Wound of entering of firearm in depth of muscle

from 1 cm X ½ cm, in the inner portion of left

upper side arm but 5 cm beneath from armpit.

Around the wound the tattooing was present.

11. Wound of exit of firearm in depth of the muscle

1 cm X 1.5 cm, corresponding the injury No. 10.

12. Brusted wound in the area of 1.5 cm X 6 cm to

2.5 cm X 1 cm deep in the muscle.

2.11 The post-mortem of deceased Masooq Ali was

conducted by Dr. Arvind Kumar Aggarwal (PW -14) on 15

th

October 2013 at 1.30 PM. The injuries sustained by deceased

Masooq Ali are thus:

13

1. Wound of entering of firearm measuring ½ cm X

½ cm deep in the cavity of the chest and 8 cm away

from left side nipple in the position of 11.00 hrs.

2. Wound of exit of firearm measuring 2 cm X 1.5 cm

in deep in the cavity of chest, towards right side of

chest beneath 11 cm of armpit and 14 cm away

from the nipple in the position of 9 hrs.

2.12 The post-mortem of deceased Rizwan was conducted

by Dr. Arvind Kumar Aggarwal (PW-14) on 15

th October 2013

at 1.45 PM. The injuries sustained by deceased Rizwan are

thus:

1. Wound of entering of firearm in deep of cavity of

chest measuring ½ cm X ½ cm towards left side of

chest, 2 cm beneath the outer portion of clavicle.

2. Wound of entering of firearm in deep of cavity of

chest measuring 1 cm X 1 cm in front of the left

side of chest 4 cm away from left nipple in the

position of 7.00 hrs.

3. Wound of exit of firearm 2 cm X 1.5 cm in deep of

the cavity of the chest towards back side of the

chest 3 cm away from the middle line in right side

14

and 7 cm beneath the neck corresponding the

injury No. 2.

2.13 The post-mortem of deceased Rihan was conducted

by Dr. Arvind Kumar Aggarwal (PW-14) on 15

th October 2013

at 2.10 PM. The injuries sustained by deceased Rihan are

thus:

1. Wound of entering of firearm 1.2 cm X 1.2 cm in

deep of the bone, on upper side of the left

shoulder. Around the wound tattooing was

present. The bone beneath the injury was

fractured.

2. Wound of exit of firearm 1 cm X 1 cm in deep of

the cavity of the chest towards right side of the

chest, 12 cm beneath of imprear angle of Scapula

and 15 cm away from the middle line.

2.14 The post-mortem of deceased Satendra was

conducted by Dr. Arvind Kumar Aggarwal (PW -14) on 15

th

October 2013 at 2.30 PM. The injuries sustained by deceased

Satendra are thus:

1. Wound of entering of firearm ½ cm X ½ cm in deep

of the bone towards the back side of the right

15

shoulder and 7 cm beneath the upper portion. The

bone beneath the injury was fractured.

2. Wound of exit of firearm 1.5 cm X 1 cm

corresponding the injury No. 1 and on outer

portion of right side collarbone.

3. Wound of exit of firearm ½ cm X ½ cm in deep of

cavity of chest, towards left side of chest and 7 cm

beneath the left nipple in the position of 7.00 hrs.

4. Wound of exit of firearm 2 cm X 1 cm in deep of

cavity of the chest towards back side of left side

chest, 16 cm beneath the scapula corresponding

the injury.

2.15 The post-mortem of deceased Sunil was conducted by

Dr. Arvind Kumar Aggarwal (PW-14) on 15

th October 2013 at

3.00 PM. The injuries sustained by deceased Sunil are thus:

1. Wound of entering of firearm 4 cm x 3 cm in the

deep of the cavity of the chest towards left side of

the chest and 11 cm away from nipple in the

position of 11.00 hrs.

2. Second and third rib beneath the injury were

fractured.

16

3. The small four metal pellet and a bending piece of

plastic in cylindrical shape was taken out from the

cavity of the chest.

2.16 After completing the investigation, chargesheet came

to be submitted against the arrested accused persons along

with absconding ones in the court of jurisdictional Magistrate.

Since the case was exclusively triable by the Sessions Court,

the same came to be committed to the Sessions Judge,

Muzaffarnagar. Following which, charges were framed against

appellants Madan and Sudesh Pal and other accused persons,

namely, Kunwar Pal and Ishwar for offences punishable under

Sections 148 and 449, Section 302 read with Section 149,

Section 307 read with Section 149, Section 323 read with

Section 149 of IPC by the trial court; whereas, an additional

charge for offence punishable under Section 25 of the Arms

Act, 1959 was framed against accused Ishwar.

2.17 Subsequently, accused Kunwar Pal absconded and

the trial commenced against appellant Madan and co-accused

Ishwar in Sessions Trial No. 09 of 2005, against appellant

Sudesh Pal in Sessions Trial No. 838 of 2005 and against

accused Ishwar in Sessions Trial No. 10 of 2005 for the charge

17

under Section 25 of the Arms Act, 1959 arising out of Case

Crime No. 204 of 2003. The accused persons denied the

charges and pleaded to be tried.

2.18 The prosecution examined as many as 25 witnesses

to prove the guilt of the accused persons. In the present case,

three out of the six deceased persons, namely, Ram Kishan,

Satendra and Sunil were related with Lokendra (PW-1) as his

cousin, real brother, and nephew respectively. They were also

related with Jai Singh (PW-8) and Anil (PW-3). The statements

of the accused persons were recorded under Section 313 of

Cr.P.C. wherein they denied the allegations against them and

stated that they were not involved in the incident and were

thus innocent. However, due to village election rivalry, they

were being falsely implicated in this case but did not examine

any witness in defence.

2.19 At the conclusion of trial, the trial court vide judgment

dated 31

st July 2015 held the accused persons guilty of

committing the murder of six persons and accordingly

convicted the appellants herein along with accused Ishwar for

offences punishable under Sections 148 and 449, Section 302

read with Section 149, Section 307 read with Section 149,

18

Section 323 read with Section 149 of IPC, while accused

Ishwar was also additionally convicted for the offence

punishable under Section 25 of the Arms Act, 1959. The trial

court, observing the offences committed by the appellants

herein to have been falling in the ambit of the rarest of the rare

case, imposed sentence of capital punishment to the

appellants herein for the offence punishable under Section

302 read with Section 149 of IPC, while it sentenced accused

Ishwar to imprisonment for life for the same. The trial court

sentenced each of the three accused persons 3 years rigorous

imprisonment under Section 148 of IPC; life imprisonment

under Section 449 and Section 307 read with Section 149 of

IPC and one year rigorous imprisonment under Section 323

read with Section 149 of IPC. The trial court further sentenced

accused Ishwar to five years rigorous imprisonment under

Section 25 of the Arms Act.

2.20 Being aggrieved thereby, the accused persons

preferred their respective appeals before the High Court with

regards to the conviction and sentence awarded by the trial

court. The High Court, by the impugned judgment, while

commuting the sentence of appellant Sudesh Pal from capital

19

punishment to imprisonment for life, dismissed the appeals

filed by appellant Madan and accused Ishwar and confirmed

their conviction and sentence awarded by the trial court. The

High Court further confirmed the Death Reference insofar as

appellant Madan is concerned; whereas insofar as appellant

Sudesh Pal is concerned, his appeal was partly allowed and

the sentence of capital punishment imposed on him was

converted to life imprisonment.

2.21 Being aggrieved thereby, the present appeals.

3. We have heard Shri Anand Grover, learned Senior

Counsel appearing for appellant Madan in Criminal Appeal

Nos. 1381-82 of 2017, Shri Manish Kumar Vikkey, learned

counsel appearing for appellant Sudesh Pal in Criminal Appeal

No. 1790 of 2017 and Shri Brijender Chahar, learned Senior

Counsel appearing for respondent-State of Uttar Pradesh.

4. Shri Grover, learned Senior Counsel appearing for

appellant Madan firstly, addressed us on merits of the matter.

He submitted that the order of conviction as passed by the trial

court and confirmed by the High Court is not at all

sustainable. He submitted that initially 11 witnesses were

cited as eye witnesses. However, 7 of them have turned

20

hostile. The prosecution case is therefore left with only 4

alleged eye witnesses i.e. Lokendra (PW-1), Irshad Khan (PW-

7), Harpal Singh (PW-10) and Sudhir (PW-11).

5. Shri Grover submitted that, from the testimony of

Lokendra (PW-1) itself, it can be seen that his presence at the

scene of crime is doubtful. It is submitted that the evidence of

this witness is contradictory to his original statement recorded

under Section 161 Cr.P.C. There are substantial

improvements in his evidence. Though in his statement

recorded under Section 161 Cr.P.C., he stated that he was with

a group of people, but in cross-examination he admitted that

he was not walking along with the group, but was behind them

by around 10 yards from the cross roads (towards the north)

when the group of people reached Rashid’s house. He

submitted that Lokendra (PW-1) admitted that he could not

clearly see the place of incident or the group of people from

where he was standing. He further submitted that the said

witness has admitted that on hearing the sound of firing, he

ran further northwards from the cross-roads from Rashid’s

house and could not see the site.

21

6. Shri Grover submitted that there are also substantial

contradictions in the testimony of Lokendra (PW-1) which

casts doubt with regard to his presence at Rizwan’s house. He

submitted that, in the chief-examination, this witness has

stated that on witnessing the shooting at Rashid’s house, he

ran towards Rizwan and Rihan’s house and took cover there

and witnessed the incident at Rizwan’s house. However, in

cross-examination, he contrarily stated that on hearing the

sounds of firing, he ran further northwards from the cross-

roads and stayed there for 15-20 minutes. From the evidence

of Jai Singh (PW-8) and Sukhpal Singh (PW-2), father and

uncle of Lokendra (PW-1) respectively, it is clear that Lokendra

(PW-1) was not present at the place of incident. Even in the

case registered by Lokendra (PW-1), he does not show himself

to be an eye witness. It is submitted that there are

contradictions in his testimony about the authorship of Tehrir.

7. Shri Grover submitted that if Lokendra (PW-1) had

really accompanied the group, then certainly he would also

have received some injuries. The learned Senior Counsel,

relying on the judgments of this Court in the cases of Jaikam

22

Khan v. State of Uttar Pradesh

1 and Khema @ Khem

Chandra v. State of Uttar Pradesh

2, submitted that the

testimony of this witness, being totally contradictory, cannot

be relied upon for convicting the appellant Madan.

8. Shri Grover further submitted that Irshad Khan (PW-

7) is the father of deceased Rizwan and Rihan, who were

allegedly shot at their own house. He submitted that there are

material contradictions in the evidence of Irshad Khan (PW-7)

also. It is submitted that, in his statement recorded under

Section 161 Cr.P.C., Irshad Khan (PW-7) stated that he was

present on the roof of the adjoining house and not inside the

room in his house and hence, could not have witnessed the

incident at his house. It is submitted that these contradictions

have been put to him in cross-examination. It is submitted

that non-examination of Mehmoona Begum, mother of

deceased Rizwan and Rihan, who was present at the place of

incident, also casts doubt about the presence of Irshad Khan

(PW-7) at the place of incident. He submitted that if Irshad

Khan (PW-7) was really present at the place of incident, then

1

(2021) 13 SCC 716

2

2022 SCC OnLine SC 991

23

there was no reason as to why he did not receive any injury.

The learned Senior Counsel submitted that the presence of

this witness is not supported from his deposition given in

Tehrir. It is submitted that the conduct of Irshad Khan (PW-

7) in not informing the police about the incident also casts

doubt about his presence.

9. Shri Grover submitted that the presence of Harpal

Singh (PW-10) at the place of incident is also doubtful. In his

deposition, Harpal Singh (PW-10) has stated that he was at the

village main road, 4-5 steps ahead of the victims at Rashid’s

house. On hearing the sound of firing, he allegedly hid near

Amanullah’s house at the time of incident. However, in his

statement recorded under Section 161 Cr.P.C., he has stated

that at the time of incident, he was near the private school

rickshaw stand which was about 600 metres away from the

place of incident. The learned Senior Counsel submitted that

a perusal of the spot map would show that the private school

is not near the place of incident. The learned Senior Counsel

submitted that further the evidence of this witness is not

corroborated by the injured witness or other eye witnesses

including Sudhir (PW-11). It is further submitted that there

24

are material contradictions with regard to time of incident in

the deposition of the said witness and as such, the testimony

of this witness is not credible.

10. Insofar as Lokendra (PW-1) is concerned, Shri Grover

submitted that the testimony of the said witness suffers from

material omissions with regard to involvement of appellant

Madan in the incident. In his statement recorded under

Section 161 Cr.P.C., Lokendra (PW-1) had stated that there

were 2-3 unknown people involved in the crime. Further in

his testimony, there were material omissions in this regard. In

his testimony, Lokendra (PW-1) vaguely mentioned that the

appellant Madan and his family members were involved in the

crime. However, he has not given any details with regard to

the same.

11. Shri Grover further submitted that there is

improvement in the evidence of Sudhir (PW-11) with regard to

the cause of his presence at the place of incident. In his

statement recorded under Section 161 Cr.P.C., Sudhir (PW-

11) did not give any reason for his presence at the place of

incident. It was for the first time in court that he deposed

about being in the locality in search of labourers to work in his

25

field. He submitted that there are serious lapses in the

prosecution case inasmuch as though Sudhir (PW-11) is

alleged to have accompanied Lokendra (PW-1) to Police Station

Babri to register the Tehrir, he did not permit Sudhir (PW-11)

to go inside the police station while registering the Tehrir. He

submitted that such a conduct is not consistent with human

nature. The learned Senior counsel therefore submitted that

Sudhir (PW-11) would fall in the category of a chance witness

and the testimony of such a witness cannot be relied upon

without there being corroboration from any independent

testimony. The learned Senior Counsel relies on the

judgments of this Court in the cases of Acharaparambath

Pradeepan and Another v. State of Kerala

3 and Harjinder

Singh alias Bhola v. State of Punjab

4.

12. Shri Grover further submitted that there are material

contradictions regarding the place where deceased Masooq Ali

was shot. According to Lokendra (PW-1) and Harpal Singh

(PW-10), Masooq Ali was shot and killed in front of his own

3

(2006) 13 SCC 643

4

(2004) 11 SCC 253

26

house. However, this version is not supported by the

testimony of Irshad Khan (PW-7).

13. Shri Grover submitted that all the aforesaid witnesses

are related to the deceased and they or their relatives held

posts in the village panchayat. He submitted that Lokendra

(PW-1) is the brother of deceased Satendra, son of injured Jai

Singh (PW-8) and cousin of deceased Ram Kishan. Sudhir

(PW-11) is an immediate cousin of Ram Kishan and related to

Lokendra (PW-1). Irshad Khan (PW-7) is the father of deceased

Rizwan and Rihan. It is submitted that these witnesses also

supported Vimla Devi, the then sarpanch and Ram Kishan’s

mother. Lokendra (PW -1) and Sudhir (PW-11) are related

witnesses of deceased Ram Kishan and Satendra. It is

submitted that all these witnesses have falsely implicated

appellant Madan so as to ensure the conviction of appellant

Madan and his family members.

14. Shri Grover submitted that the injured eye witnesses

Sukhpal Singh (PW-2), Mumtaz Khan (PW-5) and Jai Singh

(PW-8) have not supported the prosecution story alleging the

involvement of the present accused. It is submitted that

though Mumtaz Khan (PW-5) has stated in his statement

27

recorded under Section 161 Cr.P.C. that the appellant Madan

along with other accused was involved in the shooting, in his

examination-in-chief, he has stated that when he came out on

hearing the sound of firing, he saw 3-4 persons who had

covered their faces with masks and these persons were

involved in shooting. Mumtaz Khan (PW-5) does not

specifically name the appellant Madan. He submitted that

even there are contradictions in the evidence of Sukhpal Singh

(PW-2). It is submitted that even Jai Singh (PW-8), father of

Lokendra (PW-1) has not supported the prosecution case and

was declared hostile. It is therefore submitted that in the

absence of the independent witnesses supporting the

prosecution case, the conviction could not have been based on

the basis of testimony of interested witnesses. He further

submitted that the deposition of Bahadur Singh Chauhan

(PW-17) would show that 2-3 unknown persons from outside

the village were also involved in the crime. However, the police

has failed to investigate the matter with regard to involvement

of persons from other villages. It is submitted that only on

account of political rivalry, appellant Madan has been

implicated in the present crime. The learned Senior counsel

28

further submitted that the recoveries of the weapons alleged

to have been used in the crime are farcical and in any case not

supported by the Ballistic Report.

15. Shri Grover submitted that there are serious lacunae

in the investigation. It is submitted that as per the evidence

of Lokendra (PW-1), Irshad Khan (PW-7) and Harpal Singh

(PW-10), the police were present at the scene prior to the report

being lodged at the police station i.e. before 07.40 P.M.

However, Raghunandan Singh Bhadauria (PW-24) stated that

he arrived at the location at around 08.30 P.M. i.e. after the

report was lodged at 07.40 P.M. It is submitted that there is

no certainty as to when the Special Report under Section 174

Cr.P.C. was sent to the Magistrate. He submitted that the

timing of investigation becomes particularly important in view

of the opinion of Dr. Arvind Kumar Aggarwal (PW-14) who

conducted the post-mortem stating that the death of the

deceased could have been between 8 -9 P.M. i.e. after the

investigation had started. He submitted that the lapses in the

investigation are further apparent from the fact that there are

inconsistencies with regard to the presence of bodies of the

deceased and the place of inquest. It is submitted that from

29

the evidence of some of the witnesses, it appears that the

bodies were moved from the site of shooting prior to the

starting of inquest. However, the inquest report records the

presence of bodies at the site of shooting i.e., at the village

main road, Masooq Ali’s house and Deputy Pradhan’s house.

It is submitted that all these factors will cumulatively raise

substantial doubt on the fairness of investigation and

reporting.

16. Shri Grover submitted that, though independent

witnesses were available, for the reasons best known to the

prosecution, they have not been examined. It is submitted

that uptill now, Mehmoona Begum, wife of Irshad Khan (PW-

7), who was present inside the kitchen during the killing of

Rizwan, Rihan and Ram Kishan, was not presented as a

witness. It is submitted that if this witness could have been

examined, the real genesis of the incident would come forth.

It is further submitted that since the occurrence has taken

place on the main street, many independent witnesses must

have witnessed the incident. They have also not been

examined. Even Rashid, in front of whose house, one of the

shootings occurred, was not produced as a witness. It is

30

further submitted that Amanullah, in whose house Harpal

Singh (PW-10) allegedly hid during the shooting, was not

examined as a witness.

17. Shri Grover therefore submitted that the prosecution

has failed to prove the case beyond reasonable doubt and as

such, the judgment and order of conviction as recorded by the

trial court and confirmed by the High Court is liable to be set

aside.

18. Shri Grover, in the alternative, submitted that even if

this Court does not interfere with the conviction, the capital

punishment awarded to appellant Madan is not sustainable.

He submitted that the trial court and the High Court have

failed to draw a balance-sheet of mitigating and aggravating

circumstances. It is submitted that the prosecution has to

discharge the burden to place the material on record to

establish that there is no possibility of reforming a convict

before capital sentence could be awarded. Shri Grover

submitted that in the present case, the State was directed to

produce three Reports i.e. Probation Officers Report, Prison

Conduct Report and Psychological Assessment Report . He

submitted that, from the conduct of appellant Madan in jail, it

31

is evident that appellant Madan has shown positive signs of

reformation and poses no continuing threat to society.

Appellant Madan is currently 64 years old and he has been in

prison for 18 years and 3 months. It is submitted that during

the entire duration, he has had no history of any kind of

offence in prison.

19. Shri Grover submitted that even from the

Psychological Evaluation Report conducted by Institute of

Human Behaviour & Allied Sciences (IHBAS), Dilshad Garden,

Delhi, it could be seen that the said Report shows that the

socio-occupational functioning is unaffected. It further shows

that appellant Madan has voluntarily taken up tasks in prison

to keep himself occupied and also taken up responsibilities to

help younger prisoners to lead a better life in prison. It is

submitted that, taking into consideration all these factors, the

capital punishment needs to be commuted to life

imprisonment.

20. Shri Grover submitted that even the alleged motive is

far-fetched. He submitted that the political rivalry which is

attributed as motive is remote inasmuch as the elections were

held for the period prior to more than two and half years of the

32

incident. The learned Senior Counsel therefore requested for

allowing the appeals.

21. Shri Grover further submitted that the present case

does not fall in the category of rarest of rare cases to warrant

capital punishment. He submitted that the finding recorded

by the trial court and the High Court with regard to the present

case being rarest of rare cases is without basis and as such,

even if the conviction is confirmed, capital punishment would

not be sustainable.

22. Shri Grover fairly submitted that though there are

certain criminal antecedents against the appellant, the same

cannot be a ground to deny his commutation. The learned

Senior Counsel submitted that in the event this Court does not

interfere with the order of conviction, the capital punishment

deserves to be commuted to life imprisonment.

23. Shri Manish Kumar Vikkey, learned counsel

appearing for appellant Sudesh Pal has adopted the

arguments as advanced by Shri Grover.

24. Shri Chahar, learned Senior Counsel appearing on

behalf of the State submitted that no interference would be

33

warranted with the concurrent orders of trial court and the

High Court.

25. Shri Chahar submitted that the appellants have

brutally killed six innocent persons only on account of political

rivalry. It is submitted that the appellants who have

committed such a heinous and gruesome crime, are not

entitled to any leniency. It is submitted that appellant Madan

was already a hardened criminal. He submitted that he was

also awarded life imprisonment in another case and under his

leadership, the accused persons killed six persons. It is

submitted that the incident was such which caused terror in

the society and the High Court and the trial court have rightly

held the present case to be the rarest of rare cases so as to

award death penalty to the accused. He therefore submitted

that no interference would be warranted in the present case.

26. With the assistance of the learned counsel for both

the parties, we have examined the entire evidence and perused

the material placed on record.

27. The incident has taken place in two parts as under:

(i) The first place is near the house of Rashid son of

Mustafa. Appellant Madan along with Rajveer, Ram

34

Bhajan, Ramveer, Kanwar Pal and Ishwar armed with

licensed guns, rifles and country-made pistols came

from behind and started firing indiscriminately. As a

result of which, Satendra and Sunil fell down on the

Khadanja and died on the spot. When Mas ooq Ali,

after hearing the sound of gunfire, came out of his

house, the accused persons also fired shots at him. As

a result of which, he also fell down.

(ii) The second place is the house of Up-Pradhan Rizwan.

After indiscriminate firing by the accused persons,

Ram Kishan and Sukhpal Singh (PW-2) ran away to

save their lives and Ram Kishan entered the house of

Rizwan. The accused persons followed them and

entered into the house of Rizwan and fired shots at

Ram Kishan, Rizwan and Rihan. As a result of which,

Ram Kishan died on the spot. Masooq Ali, Rizwan and

Rihan were taken to the hospital by the villagers.

However, on the way to hospital, they succumbed to

their injuries.

28. Though the prosecution has examined 11 witnesses,

only 4 of them supported the prosecution case. PW-1 is

35

Lokendra. He has deposed in his evidence that , on 14

th

October 2003 at around 05.30 in the evening, he and his

brother Satendra, Sukhpal Singh (PW-2), Ram Kishan, his

father Jai Singh (PW-8) and Sunil were going to the Deputy

Pradhan Rizwan’s house for discussing the problems of the

village. He has stated that when they reached near the house

of Rashid son of Mustafa, the accused persons including the

present appellants carrying rifles, guns etc. in their hands,

came behind them. They shouted that they would kill these

people today. After saying this, all the people started firing

indiscriminately with their weapons. Due to those injuries,

Satendra and Sunil fell down on the spot. He stated that Ram

Kishan and Sukhpal Singh (PW-2) were also shot but they fled

away to save their lives. He further stated that in the

meantime, Masooq Ali came out of his house near the spot.

The accused persons also shot him and he also fell down.

29. Lokendra (PW-1) further stated that Ram Kishan

entered into Rizwan’s house to save his life and the accused

persons also entered Rizwan’s house after him. When Rizwan

and Rihan were trying to stop them from entering their house,

they also fired shots at both of them. The said witness cannot

36

be said to be an eye witness as to what has happened inside

the house of Rizwan. However, insofar as the first incident is

concerned, he is an eye witness to the same.

30. In his examination-in-chief, Lokendra (PW-1) has

stated about Vimla Devi, mother of deceased Ram Kishan

contesting the election of village Pradhan in the previous

election. Lokendra (PW-1) was also a member of the Gram

Panchayat and he supported Vimla Devi. He stated that

because of this, appellant Madan and others started keeping

internal enmity with them.

31. Lokendra (PW-1) also deposed that Mahipal, a witness

to this incident, was also murdered about two and half months

ago in the vicinity of the Jwalapur Police Station, Haridwar, in

which, Rajveer, Ramvir, Rambhajan, sons of Ishwar and

Ishwar were made the accused persons. He further stated that

because Rambhajan, Rajveer, Ramveer, Ompal and Devendra

alias Neetu were absconding from their homes since the

incident, they could not be caught. In his cross-examination,

it was put to him that in his Tehrir, it was not mentioned that

he was going with the other persons to the place of Rizwan.

However, the FIR is not an encyclopaedia of the entire incident.

37

There are certain omissions in his evidence but they are not

material.

32. Irshad Khan (PW-7) is the father of deceased Rizwan

and Rihan. Rizwan was Deputy Pradhan of the village at that

time. Irshad Khan (PW-7), in his deposition, has stated that,

on the date of the incident, when he along with his wife

Mehmoona Begum and his sons Rizwan and R ihan were

present in his house, suddenly Ram Kishan entered his house

in an injured condition. He stated that Ram Kishan was

followed by Ishwar, Madan, Rajveer, Ramveer, Rambhajan,

Kunwar Pal. He further stated that Madan’s brother-in-law

(sala) Ompal, Madan’s brother-in-law (Sadhu) Neetu, along

with Madan’s nephew had also entered in his house. He stated

that these people were carrying rifles, guns and pistols in their

hands. He further stated that the accused started shooting at

Ram Kishan inside the house. His sons Rizwan and R ihan

tried to defend Ram Kishan. However, they also shot at his

sons Rizwan and Rihan, who were trying to protect Ram

Kishan. He stated that Ram Kishan fell down on the spot. He

stated that he took Rizwan and Rihan to Dr. Bora’s hospital in

Shamli. However, after seeing them, the doctor declared them

38

dead. He also narrates somewhat about the first incident. But

he cannot be said to be an eye witness with regard to the first

incident. His evidence was sought to be attacked on the

ground that after such a gruesome incident had happened, he

had not lodged any report with the police. However, in his

cross-examination itself, he has explained thus:

“Lokendra of my village told me that he would lodge

the report at the Police Station. There is no need for

you to go, so I did not feel the need to go to the Police

Station and for lodging Report. When I reached the

village, by that time the Police had not come to the

village. When I was going to Shamli, then Lokendra

went to the Police Station Babri to lodge the Report.”

33. Irshad Khan (PW-7) has specifically denied in his

cross-examination that at the time of incident, he had stayed

upstairs on the terrace.

34. It is further to be noted that the testimony of Lokendra

(PW-1) and Irshad Khan (PW-7) is consistent inasmuch as

even Lokendra (PW-1) stated that he had gone to the house of

Rizwan after Ram Kishan followed by the accused persons

went to the house of Rizwan. This is corroborated by the

testimony of Irshad Khan (PW-7) who stated thus:

“In our house, Lokendra came after the incident. I

told Lokendra about the incident. I told Lokendra

that these people have killed my sons in front of me.”

39

35. PW-10 is Harpal Singh. He stated that on the day of

incident, he was on his way from his house towards the crime

scene to look for labourers. He stated that Rashid’s son was

going towards Mustafa’s house. He further stated that Ram

Kishan and Lokendra (PW-1), Sunil, Satendra, Sukhpal Singh

(PW-2), Jai Singh (PW-8) were coming 4-5 steps behind him.

He stated that all of a sudden, accused persons started firing.

He stated that Rambhajan, Ramveer, Kawarpal, Madan,

Rajveer, Ompal, Neetu, Sudesh were among those who fired.

He fairly admitted that he cannot attribute which weapon was

used by which accused. He stated that Satendra, Sunil and

Sukhpal Singh (PW-2) were shot when the accused opened

fire. He further stated that after going ahead, when Masooq

Ali came out of his house, he was also shot. He stated that

thereafter Ram Kishan ran towards the house of Deputy

Pradhan Rizwan. However, he cannot be an eye witness to the

second incident. He stated that he had taken cover of a wall.

He further stated that Sunil, Satendra and Masooq Ali died

due to firearm injuries. He stated that Sukhpal Singh (PW-2)

and Jai Singh (PW-8) have also received injuries. He fairly

stated that Ram Kishan, Rizwan and Rihan were also killed in

40

the incident but he did not see them being murdered with his

own eyes. In the cross-examination, he has stated that he

loved his life and therefore, he ran forward and took cover of a

wall, hiding behind the wall of Amanullah’s house. He stated

that the doors of Amanullah’s house were open and by

entering through the doors, he had taken cover of the wall. He

stated that he was behind the wall as long as the firing went

on. He stated that when the miscreants left the street, he came

out.

36. PW-11 is Sudhir. He stated that on the day of

incident, he had gone from his house towards the locality of

the Pathans. He stated that he saw Ram Kishan, Sukhpal

Singh (PW-2), Satendra, Sunil, Jai Singh (PW-8) going in the

street in front of him, in front of Mustafa’s house. At that time,

the accused persons who were having rifles and pistols in their

hands, opened fire at Ram Kishan, Sunil, Satendra and

Sukhpal Singh (PW-2). Satendra and Sunil fell on the spot as

soon as a shot was fired and Sukhpal Singh (PW-2) also fell as

soon as he was shot. Ram Kishan was shot in the legs and he

ran towards Rizwan’s house to escape. All the accused

persons ran after him. He stated that he also came to know

41

that Ram Kishan, Rizwan and Rihan had also been killed by

the accused persons. Though this witness is also cross -

examined at length, nothing damaging insofar as the main

incident is concerned, could be elicited in his testimony.

37. The testimony of these witnesses is sought to be

attacked on the ground that they are interested witnesses and

there are inconsistencies in their evidence.

38. We may gainfully refer to the observations of this

Court in the case of Piara Singh and Others v. State of

Punjab

5, which read thus:

“4. …….It is well settled that the evidence of

interested or inimical witnesses is to be scrutinised

with care but cannot be rejected merely on the

ground of being a partisan evidence. If on a perusal

of the evidence the court is satisfied that the evidence

is credit-worthy there is no bar in the Court relying

on the said evidence. The High Court was fully alive

to these principles and has in fact found that the

evidence of these three witnesses has a ring of truth.

After having perused the evidence ourselves also we

fully agree with the view taken by the High

Court……..”

39. It can thus be seen that merely because some of the

witnesses are interested or inimical witnesses, their evidence

cannot be totally discarded. The only requirement is that their

5

(1977) 4 SCC 452

42

evidence has to be scrutinized with greater care and

circumspection. In the present case, both the High Court and

the trial court have meticulously scrutinized the evidence and

found the testimony of the eye witnesses trustworthy and

reliable. We have ourselves scrutinized their evidence as

discussed hereinabove. We find that merely because there are

certain inconsistencies in the evidence of the witnesses, their

evidence cannot be discarded.

40. It will also be gainful to refer to the observations of

this Court in the case of Waman and Others v. State of

Maharashtra

6, wherein this Court has surveyed the earlier

judgments on the issue and held that if the evidence of

interested witnesses is found to be consistent and true, the

fact of being a relative, cannot by itself discredit their evidence.

41. It is further to be noted that all these witnesses are

rustic villagers. In this respect, it will be relevant to refer to

the observations of this Court in the case of State of Uttar

Pradesh v. Krishna Master and Others

7, which read thus:

“24. The basic principle of appreciation of evidence of

a rustic witness who is not educated and comes from

a poor strata of society is that the evidence of such a

6

(2011) 7 SCC 295

7

(2010) 12 SCC 324

43

witness should be appreciated as a whole. The rustic

witness as compared to an educated witness is not

expected to remember every small detail of the

incident and the manner in which the incident had

happened more particularly when his evidence is

recorded after a lapse of time. Further, a witness is

bound to face shock of the untimely death of his near

relative(s). Therefore, the court must keep in mind all

these relevant factors while appreciating evidence of

a rustic witness.”

42. We are of the considered view that insofar as the first

incident is concerned, the prosecution has duly proved its case

beyond reasonable doubt in view of the testimony of Lokendra

(PW-1) being duly corroborated by the testimonies of Harpal

Singh (PW-10) and Sudhir (PW-11). We are of the considered

view that the testimonies of these witnesses duly establish that

these witnesses have witnessed the firing on Satendra, Sunil

and Masooq Ali, who died on the spot. These witnesses have

also seen the accused persons assaulting Ram Kishan and

Sukhpal Singh (PW-2) who had received the firearm injuries,

who ran to the house of Rizwan to take shelter.

43. We are further of the considered view that though

Irshad Khan (PW-7) is a sole witness insofar as the firing on

deceased Ram Kishan, Rizwan and R ihan is concerned, his

testimony is cogent, reliable and trustworthy and can be made

44

basis for coming to a conclusion that it is the present

appellants along with other accused who have caused the

death of deceased Ram Kishan, Rizwan and R ihan. In any

case, his testimony is duly corroborated by the evidence of

Lokendra (PW-1) who had immediately come to the second

spot after the occurrence of the incident when Irshad Khan

(PW-7) informed Lokendra (PW-1) about the incident occurring

in his house.

44. The next contention raised on behalf of the appellants

is that the motive attributed by the prosecution is a very weak

motive. It is submitted that the motive attributed is on

account of political enmity due to elections which were held

two and half years prior to the date of incident. The motive is

specifically brought on record in the evidence of Lokendra (PW-

1) and Irshad Khan (PW -7). Harpal Singh (PW-10) also

deposed about the enmity between the families of Ishwar and

Ram Kishan. In any case, the present case is a case of direct

evidence. It is a settled law that though motive could be an

important aspect in a case based on circumstantial evidence,

in the case of direct evidence, the motive would not be that

relevant. In this respect, we may gainfully refer to the

45

judgment of this Court in the case of State of Andhra

Pradesh v. Bogam Chandraiah and Another

8, which reads

thus:

“11. …..Another failing in the judgment is that the

High Court has held that the prosecution has failed

to prove adequate motive for the commission of the

offence without bearing in mind the well settled rule

that when there is direct evidence of an acceptable

nature regarding the commission of an offence the

question of motive cannot loom large in the mind of

the court. ……”

45. This Court, in the case of Darbara Singh v. State of

Punjab

9, has observed thus:

“15. So far as the issue of motive is concerned, it is a

settled legal proposition that motive has great

significance in a case involving circumstantial

evidence, but where direct evidence is available,

which is worth relying upon, motive loses its

significance…….”

46. Again in the case of Subodh Nath and Another v.

State of Tripura

10, this Court has observed thus:

“16. …….The learned counsel for the appellants is

right that the prosecution has not been able to

establish the motive of Appellant 1 to kill the

deceased but as there is direct evidence of the

accused having committed the offence, motive

becomes irrelevant. Motive becomes relevant as an

8

(1986) 3 SCC 637

9

(2012) 10 SCC 476

10

(2013) 4 SCC 122

46

additional circumstance in a case where the

prosecution seeks to prove the guilt by

circumstantial evidence only.”

47. Another submission on behalf of the appellants is

with regard to faulty investigation. No doubt that there have

been certain lacunae in the police investigation. However, the

evidence of eye witnesses is consistent, reliable, trustworthy

and cogent. Merely because there are certain lacunae in the

investigation, it cannot be a ground to disbelieve the testimony

of eye-witnesses. In this respect, we may refer to the

observations of this Court in the case of Karnel Singh v.

State of M.P.

11, which read thus:

“5. Notwithstanding our unhappiness regarding the

nature of investigation, we have to consider whether

the evidence on record, even on strict scrutiny,

establishes the guilt. In cases of defective

investigation the court has to be circumspect in

evaluating the evidence but it would not be right in

acquitting an accused person solely on account of the

defect; to do so would tantamount to playing into the

hands of the investigating officer if the investigation

is designedly defective. ………”

48. A similar view has been taken by this Court in the

case of Shera Singh v. State of Punjab

12.

11

(1995) 5 SCC 518

12

(1996) 10 SCC 330

47

49. In totality of the circumstances, we are of the

considered view that the prosecution has proved beyond

reasonable doubt the case for conviction under Section 302 of

IPC and the appeals in that regard are liable to be rejected.

50. The next questions that we are called upon to consider

are, as to whether the present case falls in the category of

rarest of rare cases, and as to whether on the facts of the

present case, the capital punishment imposed on appellant-

Madan deserves to be maintained or not?

51. The Constitution Bench in the case of Bachan Singh

v. State of Punjab

13, observed thus:

“164. Attuned to the legislative policy delineated in

Sections 354(3) and 235(2), propositions (iv)(a) and

(v)(b) in Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri)

169 : (1973) 2 SCR 541] shall have to be recast and

may be stated as below:

“(a) The normal rule is that the offence of

murder shall be punished with the

sentence of life imprisonment. The court

can depart from that rule and impose the

sentence of death only if there are special

reasons for doing so. Such reasons must

be recorded in writing before imposing the

death sentence.

(b) While considering the question of

sentence to be imposed for the offence of

murder under Section 302 of the Penal

Code, the court must have regard to every

13

(1980) 2 SCC 684

48

relevant circumstance relating to the

crime as well as the criminal. If the court

finds, but not otherwise, that the offence

is of an exceptionally depraved and

heinous character and constitutes, on

account of its design and the manner of its

execution, a source of grave danger to the

society at large, the court may impose the

death sentence.””

52. It can thus be seen that the Constitution Bench held

that the normal rule is that the offence of murder shall be

punished with the sentence of life imprisonment. The court

can depart from that rule and impose the sentence of death

only if there are special reasons for doing so. Such reasons are

required to be recorded in writing before imposing the death

sentence. While considering such a question, the court must

have regard to every relevant circumstance relating to the

crime as well as the criminal. If the court finds, but not

otherwise, that the offence is of an exceptionally depraved and

heinous character and constitutes, on account of its design

and the manner of its execution, a source of grave danger to

the society at large, the court may impose the death sentence.

49

53. It may further be relevant to refer to the following

observations of this Court in the case of Bachan Singh

(supra):

“202. Drawing upon the penal statutes of the States

in U.S.A. framed after Furman v. Georgia [33 L Ed 2d

346 : 408 US 238 (1972)] , in general, and clauses 2

(a), (b), (c) and (d) of the Penal Code, 1860

(Amendment) Bill passed in 1978 by the Rajya

Sabha, in particular, Dr Chitale has suggested these

“aggravating circumstances”:

“Aggravating circumstances: A court may,

however, in the following cases impose the

penalty of death in its discretion:

(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

50

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.””

54. In the case of Machhi Singh and Others v. State of

Punjab

14, this Court laid down certain propositions which are

required to be taken into consideration. The Court observed

thus:

“32. The reasons why the community as a whole does

not endorse the humanistic approach reflected in

“death sentence-in-no-case” doctrine are not far to

seek. In the first place, the very humanistic edifice is

constructed on the foundation of “reverence for life”

principle. When a member of the community violates

this very principle by killing another member, the

society may not feel itself bound by the shackles of

this doctrine. Secondly, it has to be realized that

every member of the community is able to live with

safety without his or her own life being endangered

because of the protective arm of the community and

on account of the rule of law enforced by it. The very

existence of the rule of law and the fear of being

brought to book operates as a deterrent for those who

have no scruples in killing others if it suits their ends.

Every member of the community owes a debt to the

community for this protection. When ingratitude is

shown instead of gratitude by “killing” a member of

the community which protects the murderer himself

from being killed, or when the community feels that

for the sake of self-preservation the killer has to be

14

(1983) 3 SCC 470

51

killed, the community may well withdraw the

protection by sanctioning the death penalty. But the

community will not do so in every case. It may do so

“in rarest of rare cases” when its collective conscience

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 community may entertain such a sentiment

when the crime is viewed from the platform of the

motive for, or the manner of commission of the crime,

or the anti-social or abhorrent nature of the crime,

such as for instance:

I. Manner of commission of murder

33. 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. For instance,

(i) when the house of the victim is set

aflame with the end in view to roast him

alive in the house.

(ii) when the victim is subjected to

inhuman acts of torture or cruelty in order

to bring about his or her death.

(iii) when the body of the victim is cut into

pieces or his body is dismembered in a

fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive

which evinces total depravity and meanness. For

instance when (a) a hired assassin commits murder

for the sake of money or reward (b) a cold-blooded

murder is committed with a deliberate design in

order to inherit property or to gain control over

property of a ward or a person under the control of

the murderer or vis-a-vis whom the murderer is in a

52

dominating position or in a position of trust, or (c) a

murder is committed in the course for betrayal of the

motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled

Caste or minority community etc., is committed not

for personal reasons but in circumstances which

arouse social wrath. For instance when such a crime

is committed in order to terrorize such persons and

frighten them into fleeing from a place or in order to

deprive them of, or make them surrender, lands or

benefits conferred on them with a view to reverse past

injustices and in order to restore the social balance.

IV. Magnitude of crime

36. 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.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent

child who could not have or has not provided even an

excuse, much less a provocation, for murder (b) a

helpless woman or a person rendered helpless by old

age or infirmity (c) when the victim is a person vis-a-

vis whom the murderer is in a position of domination

or trust (d) when the victim is a public figure

generally loved and respected by the community for

the services rendered by him and the murder is

committed for political or similar reasons other than

personal reasons.”

53

55. This Court, in the case of Machhi Singh (supra), after

referring to the Constitution Bench judgment in the case of

Bachan Singh (supra), observed thus:

“38. In this background the guidelines indicated

in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC

(Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] 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 case [(1980) 2 SCC 684 :

1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ

636] :

“(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

54

up and in doing so the mitigating

circumstances have to be accorded full

weightage and a just balance has to be

struck between the aggravating and the

mitigating circumstances before the

option is exercised.

39. In order to apply these guidelines inter alia the

following questions may be asked and answered:

(a) Is there something uncommon about

the crime which renders sentence of

imprisonment for life inadequate and calls

for a death sentence?

(b) Are the circumstances of the crime

such that there is no alternative but to

impose death sentence even after

according maximum weightage to the

mitigating circumstances which speak in

favour of the offender?

40. If upon taking an overall global view of all the

circumstances in the light of the aforesaid

proposition and taking into account the answers to

the questions posed hereinabove, the circumstances

of the case are such that death sentence is

warranted, the court would proceed to do so.”

56. This Court, in the case of Ramnaresh and Others v.

State of Chhattisgarh

15, observed thus:

“76. The law enunciated by this Court in its recent

judgments, as already noticed, adds and elaborates

the principles that were stated in Bachan

Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and

thereafter, in Machhi Singh [(1983) 3 SCC 470 : 1983

15

(2012) 4 SCC 257

55

SCC (Cri) 681]. The aforesaid judgments, primarily

dissect these principles into two different

compartments—one being the “aggravating

circumstances” while the other being the “mitigating

circumstances”. The court would consider the

cumulative effect of both these aspects and normally,

it may not be very appropriate for the court to decide

the most significant aspect of sentencing policy with

reference to one of the classes under any of the

following heads while completely ignoring other

classes under other heads. To balance the two is the

primary duty of the court. It will be appropriate for

the court to come to a final conclusion upon

balancing the exercise that would help to administer

the criminal justice system better and provide an

effective and meaningful reasoning by the court as

contemplated under Section 354(3) CrPC.

Aggravating circumstances

(1) The offences relating to the commission of heinous

crimes like murder, rape, armed dacoity, kidnapping,

etc. by the accused with a prior record of conviction

for capital felony or offences committed by the person

having a substantial history of serious assaults and

criminal convictions.

(2) The offence was committed while the offender was

engaged in the commission of another serious

offence.

(3) The offence was committed with the intention to

create a fear psychosis in the public at large and was

committed in a public place by a weapon or device

which clearly could be hazardous to the life of more

than one person.

(4) The offence of murder was committed for ransom

or like offences to receive money or monetary

benefits.

(5) Hired killings.

56

(6) The offence was committed outrageously for want

only while involving inhumane treatment and torture

to the victim.

(7) The offence was committed by a person while in

lawful custody.

(8) The murder or the offence was committed to

prevent a person lawfully carrying out his duty like

arrest or custody in a place of lawful confinement of

himself or another. For instance, murder is of a

person who had acted in lawful discharge of his duty

under Section 43 CrPC.

(9) When the crime is enormous in proportion like

making an attempt of murder of the entire family or

members of a particular community.

(10) When the victim is innocent, helpless or a person

relies upon the trust of relationship and social

norms, like a child, helpless woman, a daughter or a

niece staying with a father/uncle and is inflicted with

the crime by such a trusted person.

(11) When murder is committed for a motive which

evidences total depravity and meanness.

(12) When there is a cold-blooded murder without

provocation.

(13) The crime is committed so brutally that it pricks

or shocks not only the judicial conscience but even

the conscience of the society.

Mitigating circumstances

(1) The manner and circumstances in and under

which the offence was committed, for example,

extreme mental or emotional disturbance or extreme

provocation in contradistinction to all these

situations in normal course.

(2) The age of the accused is a relevant consideration

but not a determinative factor by itself.

57

(3) The chances of the accused of not indulging in

commission of the crime again and the probability of

the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was

mentally defective and the defect impaired his

capacity to appreciate the circumstances of his

criminal conduct.

(5) The circumstances which, in normal course of life,

would render such a behaviour possible and could

have the effect of giving rise to mental imbalance in

that given situation like persistent harassment or, in

fact, leading to such a peak of human behaviour that,

in the facts and circumstances of the case, the

accused believed that he was morally justified in

committing the offence.

(6) Where the court upon proper appreciation of

evidence is of the view that the crime was not

committed in a preordained manner and that the

death resulted in the course of commission of

another crime and that there was a possibility of it

being construed as consequences to the commission

of the primary crime.

(7) Where it is absolutely unsafe to rely upon the

testimony of a sole eyewitness though the

prosecution has brought home the guilt of the

accused.

77. While determining the questions relatable to

sentencing policy, the court has to follow certain

principles and those principles are the loadstar

besides the above considerations in imposition or

otherwise of the death sentence.

Principles

(1) The court has to apply the test to determine, if it

was the “rarest of rare” case for imposition of a death

sentence.

58

(2) In the opinion of the court, imposition of any other

punishment i.e. life imprisonment would be

completely inadequate and would not meet the ends

of justice.

(3) Life imprisonment is the rule and death sentence

is an exception.

(4) The option to impose sentence of imprisonment

for life cannot be cautiously exercised having regard

to the nature and circumstances of the crime and all

relevant considerations.

(5) The method (planned or otherwise) and the

manner (extent of brutality and inhumanity, etc.) in

which the crime was committed and the

circumstances leading to commission of such

heinous crime.”

57. Applying the aforesaid principles, as laid down by this

Court in the aforesaid judgments, it can be seen that in the

present case, the appellants along with other accused came

behind the innocent persons and exhorted and started firing

indiscriminately, firstly, in front of the house of Rashid. As a

result of which two persons namely Satendra and Sunil fell

down and died on the spot. When Masooq Ali, after hearing the

sound of firing, came out from his house, the accused persons

shot fire at him also. As a result, he also fell down. Ram

Kishan and Sukhpal Singh (PW-2) were also injured. The

injured Ram Kishan and Sukhpal Singh (PW-2) went towards

the house of Rizwan to save their lives. However, the

59

appellants and the other accused followed them and went

inside the house of Rizwan and fired shot at Ram Kishan. As

a result, Ram Kishan died on the spot. The accused persons

also fired shot at Rizwan and Rihan who tried to protect Ram

Kishan. On their way to hospital, injured Masooq Ali, Rizwan

and Rihan also died. It could thus be clear that, six deaths

were caused on account of brutal firing by the appellants and

other accused persons. The entire village and the people

residing in the surrounding areas must have been shocked by

such heinous and gruesome act. Not only that, one of the eye

witnesses was also murdered during the pendency of the trial.

The terror of the appellants and other accused persons was of

such a high magnitude that even the witn esses who had

received grievous injuries did not support the prosecution case

and were required to be declared hostile. As such, we find that

four innocent persons were shot from behind. Two of them

succumbed on the spot and two, who received serious injuries,

tried to rush to the house of Rizwan to protect themselves.

One innocent person, after hearing the sound of firing, came

out and he was also brutally shot. Ram Kishan, who sought

shelter in Rizwan’s house and Rizwan and Rihan who tried to

60

protect Ram Kishan were also brutally killed. We are therefore

of the considered view that the act of the appellants and the

other accused would certainly be the one which shocked the

collective conscience of the society and fall in the category of

rarest of rare cases.

58. The next question that we will be called upon to

answer is that, whether in the facts and circumstances of the

case, imposition of death penalty on the appellants, would be

warranted or not?

59. This Court, in the case of Swamy Shraddananda (2)

alias Murali Manohar Mishra v. State of Karnataka

16, has

observed thus:

“90. Earlier in this judgment it was noted that in the

decision in Shri Bhagwan [(2001) 6 SCC 296 : 2001

SCC (Cri) 1095] there is a useful discussion on the

legality of remission in the case of life convicts. The

judgment in Shri Bhagwan [(2001) 6 SCC 296 : 2001

SCC (Cri) 1095] , in SCC para 22, refers to and quotes

from the earlier decision in State of M.P. v. Ratan

Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428] which

in turn quotes a passage from the Constitution

Bench decision in Gopal Vinayak Godse [AIR 1961

SC 600 : (1961) 3 SCR 440] . It will be profitable to

reproduce here the extract from Ratan Singh [(1976)

3 SCC 470 : 1976 SCC (Cri) 428] : (SCC pp. 473-74,

para 4)

16

(2008) 13 SCC 767

61

“4. As regards the first point, namely, that

the prisoner could be released

automatically on the expiry of 20 years

under the Punjab Jail Manual or the Rules

framed under the Prisons Act, the matter

is no longer res integra and stands

concluded by a decision of this Court

in Gopal Vinayak Godse v. State of

Maharashtra [AIR 1961 SC 600 : (1961) 3

SCR 440] , where the Court, following a

decision of the Privy Counsel in Pandit

Kishori Lal v. King Emperor [(1944-45) 72

IA 1 : AIR 1945 PC 64] observed as follows:

(AIR pp. 602-03, paras 4-5)

‘4. … Under that section a

person transported for life or

any other terms before the

enactment of the said section

would be treated as a person

sentenced to rigorous

imprisonment for life or for the

said term.

5. If so the next question is

whether there is any provision

of law whereunder a sentence

for life imprisonment, without

any formal remission by

appropriate Government, can

be automatically treated as one

for a definite period. No such

provision is found in the Penal

Code, Code of Criminal

Procedure or the Prisons Act. …

A sentence of transportation for

life or imprisonment for life

must prima facie be treated as

transportation or imprisonment

for the whole of the remaining

period of the convicted person's

natural life.’

62

The Court further observed thus: (AIR pp.

603-04, paras 7-8)

‘7. … But the Prisons Act does

not confer on any authority a

power to commute or remit

sentences; it provides only for

the regulation of prisons and for

the treatment of prisoners

confined therein. Section 59 of

the Prisons Act confers a power

on the State Government to

make rules, inter alia, for

rewards for good conduct.

Therefore, the rules made

under the Act should be

construed within the scope of

the ambit of the Act. … Under

the said rules the order of an

appropriate Government under

Section 401, Criminal

Procedure Code, are a

prerequisite for a release. No

other rule has been brought to

our notice which confers an

indefeasible right on a prisoner

sentenced to transportation for

life to an unconditional release

on the expiry of a particular

term including remissions. The

rules under the Prisons Act do

not substitute a lesser sentence

for a sentence of transportation

for life.

8. … The question of remission

is exclusively within the

province of the appropriate

Government; and in this case it

is admitted that, though the

appropriate Government made

certain remissions under

Section 401 of the Code of

63

Criminal Procedure, it did not

remit the entire sentence. We,

therefore, hold that the

petitioner has not yet acquired

any right to release.’

It is, therefore, manifest from the decision

of this Court that the Rules framed under

the Prisons Act or under the Jail Manual

do not affect the total period which the

prisoner has to suffer but merely amount

to administrative instructions regarding

the various remissions to be given to the

prisoner from time to time in accordance

with the rules. This Court further pointed

out that the question of remission of the

entire sentence or a part of it lies within

the exclusive domain of the appropriate

Government under Section 401 of the

Code of Criminal Procedure and neither

Section 57 of the Penal Code nor any Rules

or local Acts can stultify the effect of the

sentence of life imprisonment given by the

court under the Penal Code. In other

words, this Court has clearly held that a

sentence for life would ensure till the

lifetime of the accused as it is not possible

to fix a particular period the prisoner's

death and remissions given under the

Rules could not be regarded as a

substitute for a sentence of transportation

for life.”

(emphasis supplied)

Further, in para 23, the judgment in Shri

Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095]

observed as follows: (SCC pp. 306-07)

“23. In Maru Ram v. Union of India [(1981)

1 SCC 107 : 1981 SCC (Cri) 112] a

Constitution Bench of this Court

reiterated the aforesaid position and

observed that the inevitable conclusion is

that since in Section 433-A we deal only

64

with life sentences, remissions lead

nowhere and cannot entitle a prisoner to

release. Further, in Laxman

Naskar v. State of W.B. [(2000) 7 SCC 626

: 2000 SCC (Cri) 1431] , after referring to

the decision of Gopal Vinayak

Godse v. State of Maharashtra [AIR 1961

SC 600 : (1961) 3 SCR 440] , the Court

reiterated that sentence for ‘imprisonment

for life’ ordinarily means imprisonment for

the whole of the remaining period of the

convicted person's natural life; that a

convict undergoing such sentence may

earn remissions of his part of sentence

under the Prison Rules but such

remissions in the absence of an order of an

appropriate Government remitting the

entire balance of his sentence under this

section does not entitle the convict to be

released automatically before the full life

term if served. It was observed that though

under the relevant Rules a sentence for

imprisonment for life is equated with the

definite period of 20 years, there is no

indefeasible right of such prisoner to be

unconditionally released on the expiry of

such particular term, including

remissions and that is only for the purpose

of working out the remissions that the said

sentence is equated with definite period

and not for any other purpose.”

(emphasis supplied)

91. The legal position as enunciated in Pandit Kishori

Lal [(1944-45) 72 IA 1 : AIR 1945 PC 64] , Gopal

Vinayak Godse [AIR 1961 SC 600 : (1961) 3 SCR 440]

, Maru Ram [(1981) 1 SCC 107 : 1981 SCC (Cri) 112]

, Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri)

428] and Shri Bhagwan [(2001) 6 SCC 296 : 2001

SCC (Cri) 1095] and the unsound way in which

remission is actually allowed in cases of life

imprisonment make out a very strong case to make a

65

special category for the very few cases where the

death penalty might be substituted by the

punishment of imprisonment for life or imprisonment

for a term in excess of fourteen years and to put that

category beyond the application of remission.

92. The matter may be looked at from a slightly

different angle. The issue of sentencing has two

aspects. A sentence may be excessive and unduly

harsh or it may be highly disproportionately

inadequate. When an appellant comes to this Court

carrying a death sentence awarded by the trial court

and confirmed by the High Court, this Court may

find, as in the present appeal, that the case just falls

short of the rarest of the rare category and may feel

somewhat reluctant in endorsing the death sentence.

But at the same time, having regard to the nature of

the crime, the Court may strongly feel that a sentence

of life imprisonment subject to remission normally

works out to a term of 14 years would be grossly

disproportionate and inadequate. What then should

the Court do? If the Court's option is limited only to

two punishments, one a sentence of imprisonment,

for all intents and purposes, of not more than 14

years and the other death, the Court may feel

tempted and find itself nudged into endorsing the

death penalty. Such a course would indeed be

disastrous. A far more just, reasonable and proper

course would be to expand the options and to take

over what, as a matter of fact, lawfully belongs to the

Court i.e. the vast hiatus between 14 years'

imprisonment and death. It needs to be emphasised

that the Court would take recourse to the expanded

option primarily because in the facts of the case, the

sentence of 14 years' imprisonment would amount to

no punishment at all.

93. Further, the formalisation of a special category of

sentence, though for an extremely few number of

cases, shall have the great advantage of having the

death penalty on the statute book but to actually use

it as little as possible, really in the rarest of rare

cases. This would only be a reassertion of the

66

Constitution Bench decision in Bachan Singh [(1980)

2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898]

besides being in accord with the modern trends in

penology.

94. In the light of the discussions made above we are

clearly of the view that there is a good and strong

basis for the Court to substitute a death sentence by

life imprisonment or by a term in excess of fourteen

years and further to direct that the convict must not

be released from the prison for the rest of his life or

for the actual term as specified in the order, as the

case may be.”

60. It can thus be seen that the Court found that there

might be certain cases wherein the Court may feel that the

case just falls short of the rarest of the rare category and may

feel somewhat reluctant in endorsing the death sentence. But

at the same time, having regard to the nature of the crime, the

Court may strongly feel that a sentence of life imprisonment

subject to remission which normally works out to a term of 14

years would be grossly disproportionate and inadequate. The

Court held that the Court cannot be limited only to two

punishments, one a sentence of imprisonment, for all intents

and purposes, of not more than 14 years and the other death.

It has been held that a far more just, reasonable and proper

course would be to expand the options and to take over what,

as a matter of fact, lawfully belongs to the Court i.e. the vast

67

hiatus between 14 years' imprisonment and death. It has been

held that the Court would be entitled to substitute a death

sentence by life imprisonment or by a term in excess of

fourteen years and further to direct that the convict must not

be released from the prison for the rest of his life or for the

actual term as specified in the order.

61. This Court, in the case of Shankar Kisanrao Khade

v. State of Maharashtra

17, after referring to various cases,

adopted the middle path and commuted the death penalty into

sentence for the rest of the life without remission. Further, in

some of the cases, it was directed that only after the convict

undertook sentence for a fixed period as directed without

remission, his case for premature release could be considered.

62. This Court, in the case of Gandi Doddabasappa

alias Gandhi Basavaraj v. State of Karnataka

18, wherein

the accused had committed murder of his daughter, who was

in the advanced stage of pregnancy, though upheld the

conviction of the accused under Section 302 IPC, nevertheless

17

(2013) 5 SCC 546

18

(2017) 5 SCC 415

68

commuted the sentence from capital punishment to

imprisonment for life.

63. In the case of Prakash Dhawal Khairnar

(Patil) v. State of Maharashtra

19, the appellant was a Senior

Scientific Assistant. He wiped out his brother's entire family.

This Court found that this was done by him on account of

frustration as his brother was not partitioning the alleged joint

property. Though this Court held that the crime was heinous

and brutal, but it could not be considered to be ‘rarest of rare’

case. This Court held that, it is difficult to hold that appellant

is a menace to the society and that there is no reason to believe

that he cannot be reformed or rehabilitated. The Court,

considering the facts and circumstances of the case, set aside

the death sentence and directed that he shall suffer

imprisonment for life but shall not be released unless he

served at least 20 years of imprisonment including the period

already undergone by him.

64. In the case of Mohinder Singh v. State of Punjab

20,

this Court observed thus:

19

(2002) 2 SCC 35

20

(2013) 3 SCC 294

69

“25. It is well-settled law that awarding of life

sentence is a rule and death is an exception. The

application of the “rarest of rare” cases principle is

dependent upon and differs from case to case.

However, the principles laid down and reiterated in

various decisions of this Court show that in a

deliberately planned crime, executed meticulously in

a diabolic manner, exhibiting inhuman conduct in a

ghastly manner, touching the conscience of everyone

and thereby disturbing the moral fibre of the society,

would call for imposition of the capital punishment

in order to ensure that it acts as a deterrent. While

we are convinced that the case of the prosecution

based on the evidence adduced confirms the

commission of offence by the appellant, however, we

are of the considered opinion that still the case does

not fall within the four corners of the “rarest of rare”

cases.”

65. In the said case, the accused had committed murder

of his wife and daughter. However, this Court observed that in

the facts and circumstances, it could not be said that

imposition of death penalty was the only alternative and

commuted the order of death sentence confirmed by the High

Court to life imprisonment.

66. Recently, this Court, in the case of Sundar @

Sundarrajan v. State by Inspector of Police

21, held that

‘rarest of rare’ doctrine does not require that in such a case

only death sentence has to be imposed. This Court held that,

21

2023 SCC OnLine SC 310

70

while considering as to whether the death sentence is to be

inflicted or not, the Court will have to consider not only the

grave nature of crime but also as to whether there was a

possibility of reformation of a criminal.

67. It is a settled position of law that, while sentencing,

the Court is not required to apply only the ‘crime test’ but also

the ‘criminal test’.

68. This Court, in the present case, vide order dated 16

th

March 2023, had called for the Probation Officer’s Report,

Prison Conduct Report and Psychological Assessment Report.

69. As per the Prison Conduct Report submitted by the

Superintendent, District Jail, Baghpat, appellant Madan is

currently 64 years old. He has been in prison for 18 years 3

months. During this entire duration, he has no history of any

kind of prison offence. The Report further shows that he has

not been involved in any form of quarrels or fights in prison.

The Report shows that he has cordial relations with other

prisoners in his barrack and follows the prison rules. The

Report shows that he spends his time engaging in constructive

activities, such as playing games and reading books. He

71

observes the prison timings and assists the prison

administration as well.

70. The IHBAS has also submitted appellant Madan ’s

Psychological Assessment Report. As per the said Report,

appellant Madan is maintaining his daily activities adequately

and his socio-occupational functioning is unaffected except

occasional forgetfulness which could be age related. As per

the said Report, appellant Madan has voluntarily taken up

tasks in prison to keep himself occupied. He has also taken

up responsibilities to help younger prisoners to lead a better

life in prison.

71. This Court, in the case of Rajendra Pralhadrao

Wasnik v. State of Maharashtra

22, after referring to various

earlier judgments, has held that in awarding death penalty, it

is mandatory that the probability that the convict can be

reformed and rehabilitated in the society, must be seriously

and earnestly considered. It has been held that it is one of the

mandates of the “special reasons” requirement of Section

354(3) Cr.P.C. This Court, in the cases of Bachan Singh

22

(2019) 12 SCC 460

72

(supra), Santosh Kumar Satishbhushan Bariyar v. State

of Maharashtra

23, Chhannu Lal Verma v. State of

Chhattisgarh

24, Rajendra Pralhadrao Wasnik (supra) and

Manoj and Others v. State of Madhya Pradesh

25,

consistently held that it is the obligation of the prosecution to

prove to the Court through evidence that there is a probability

that the convict cannot be reformed or rehabilitated.

Undisputedly, the prosecution has not placed any material in

that regard either before the trial court or the Appellate Court.

Per contra, the Reports by the Jail Authorities and IHBAS

would show that there is a possibility of the appellant being

reformed.

72. No doubt that there is a history of previous conviction

insofar as appellant Madan is concerned. However, this

Court, in the case of Rajendra Pralhadrao Wasnik (supra),

has held that the history of the convict by itself cannot be a

ground for awarding him death penalty.

73. As discussed hereinabove, the appellant is of an

advanced age. This Court, in the case of Babasaheb Maruti

23

(2009) 6 SCC 498

24

(2019) 12 SCC 438

25

(2023) 2 SCC 353

73

Kamble v. State of Maharashtra

26, has held that advance

age is one of the mitigating circumstances in favour of the

convict.

74. This Court, in the case of Irappa Siddappa

Murgannavar v. State of Karnataka

27, has held that the

period of incarceration while sitting in a death row is also one

of the mitigating circumstances. In the present case, convict

Madan has been incarcerated for a period of 18 years 3

months.

75. This Court, in the case of Mohinder Singh (supra),

has held that the fact that the prisoner has displayed good

behaviour in prison, certainly goes on to show that he is not

beyond reform.

76. Taking into consideration all these factors, we find

that the present case is not a case wherein it can be held that

imposition of death penalty is the only alternative. Another

reason that weighs with us is that from the evidence of the

witnesses, it is clear that the role attributed to all the accused

persons has been similar. The evidence of witnesses would

26

(2019) 13 SCC 640

27

(2022) 2 SCC 801

74

show that the role attributed is that all the accused persons

including both the appellants herein had fired shots and

indiscriminately indulged in the said firing. The trial court

imposed capital sentence on appellants Madan and Sudesh

Pal. However, insofar as accused Ishwar is concerned, though

the evidence against him is on similar lines, he was sentenced

to life imprisonment. The High Court, on the basis of the same

evidence, though confirmed the death penalty insofar as

appellant Madan is concerned, partly allowed the appeal of

Sudesh Pal and sentenced him to undergo life imprisonment.

A perusal of the judgment of the High Court would reveal that

the only distinction drawn by the High Court between the

cases of Sudesh Pal and Madan is the additional factor that

Madan was already awarded life imprisonment in another

case. As already observed hereinabove, this Court, in the case

of Rajendra Pralhadrao Wasnik (supra), has held that past

conduct does not necessarily have to be taken into

consideration while imposing death penalty. At the cost of

repetition, the role attributed in the evidence of the eye

witnesses is identical to all the accused. In that view of the

matter, we find that the High Court was not justified in

75

imposing death penalty on appellant Madan while converting

the death penalty imposed upon Sudesh Pal to life

imprisonment. If the judgment of the High Court is

maintained, it would lead to an anomalous situation. Whereas

appellant Sudesh Pal would be entitled for consideration of his

case for remission and pre-mature release on completion of a

particular number of years in accordance with the relevant

rules, appellant Madan will have to face death penalty.

77. We are of the considered view that the present case

would fall in the middle path as laid down in the case of

Swamy Shraddananda (2) alias Murali Manohar Mishra

(supra), followed by this Court in various judgments. We find

that the interest of justice would be met by converting death

penalty into life imprisonment i.e. actual imprisonment for a

period of 20 years without remission.

78. In the result, the appeals are disposed with the

following directions:

(i) Criminal Appeal No.1790 of 2017 filed by appellant

Sudesh Pal is dismissed;

76

(ii) Criminal Appeal Nos. 1381-1382 of 2017 filed by

appellant Madan are partly allowed. Conviction under

Section 302 of IPC is confirmed insofar as appellant

Madan is concerned. However, death penalty imposed

on him is converted into imprisonment for a fixed term

of 20 years, including the period already undergone,

without remission;

(iii) In other words, the case of appellant Madan would not

be considered for pre-mature release unless he

completes the actual sentence of 20 years.

79. Pending application(s), if any, shall stand disposed of

in the above terms.

….……..….......................J.

[B.R. GAVAI]

.……..….........................J.

[B.V. NAGARATHNA ]

……………..….........................J.

[PRASHANT KUMAR MISHRA ]

NEW DELHI;

NOVEMBER 09 , 2023.