State Of U.P vs Sattan @ Satyendra & Ors

State of U.P. ...Appellant

Versus

Sattan @ Satyendra & Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of

the Allahabad High Court by which two Criminal appeals filed by accused

Sattan, Uppendra, Hari Pal son of Kiran Singh and Hari Pal son of Ram

Charan (Criminal Appeal No. 2140 of 1999) and Criminal Appeal No. 2237

of 1999 filed by accused Kripal, Brij Pal, Ram Pal and Devendra. A reference under Section 366 of the Code of Criminal Procedure, 1973 (in

short the `Code') for confirmation of death sentence in respect of the

accused appellants in Criminal Appeal No. 2140 of 1999 before the High

Court was made. So far as Sattan, Upendra, Hari Pal son of Kiran Singh

and Hari pal son of Ram Charan are concerned they were sentenced to two

years R.I. each under Section 148 of the Indian Penal Code, 1860 (in short

the `IPC'), 10 years R.I. under Section 307 read with Section 149 IPC and

death sentence in respect of offence punishable under Section 302 read with

Section 149 IPC. The appellants in the Criminal Appeal No.2237 of 1999

were convicted and sentenced to life imprisonment under Section 120 B IPC

alongwith appellants in Criminal Appeal No. 2140 of 1999 accused

Mukesh, Dhirendra, Rakesh, Naresh and Pappu also faced trial. Out of them

Pappu and Naresh died during the pendency of trial while Mukesh, Rakesh

and Dhirendra absconded and trial so far as they are concerned were

separated. One Rajveer was also charged in terms of Section 120B

alongwith appellants in Criminal Appeal No. 2237 of 1999. The Criminal

Appeal No.2237 of 1999 was allowed and conviction of

Brijpal, Ram Pal and Devendra was set aside. So far as Criminal Appeal

No.2140 of 1999 is concerned the conviction as recorded was maintained.

Death sentence imposed was altered to life sentence. In the present appeals

2 State has questioned alteration of the death sentence to life sentence in

respect of appellant in Criminal Appeal No. 2140 of 1999 and the acquittal

as recorded in Criminal Appeal No. 2237 of 1999 as maintained; While

upholding the conviction of accused Sattan and Upendra directed acquittal

of Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan.

2. According to learned counsel for the State the only appropriate

sentence in a case of this nature was death sentence and the High Court

erred in altering it to life sentence after upholding the conviction. Similarly,

in respect of the acquittal in the case of the appellants in separate Criminal

Appeal Nos.2237 and 2140 of 1999 is concerned, it is submitted that the

High Court has not indicated any reasons as to why the conviction as

recorded by the Trial Court suffered from any infirmity to warrant

interference.

3. Mr. M. Karpaga Vinayagam, learned Amicus Curiae supported the

judgments of the High Court.

4. The prosecution version as unfolded during trial is as follows:

3

In the night between August 30 and 31, 1994 at about 12.30 five

persons of Sheo Pal's family were gunned down in his house in village

Saloni within the area of police station Bahadurgarh, Ghaziabad. Four

others were injured, out of whom Neetu also succumbed to his injuries later

on. This massacre was reported at the police station on the same night at

2.55 A.M. by one of the survivors, Smt. Bala, PW 1 widow of deceased

Shiv Singh. With the registration of case police came into action and the

Investigating Officer promptly rushed to the place of occurrence and

recorded the statements of Smt. Bala, Neetu and Km. Guddi who all had

received injuries in the course of ghastly incident. Inquest proceedings were

held in respect of dead bodies of five persons, namely, Sheo Pal Singh, Smt.

Kunti Devi, Shiv Singh, Manjeet and Khushal who were reported to have

been shot dead by the assailants while asleep inside their house. Their dead

bodies were sent for postmortem examination. The investigating Officer

Shri Ram Babu Tiwari, P.W.9 also pr-epared site plan, Ex.Ka 48 after

making spot inspection of the place of occurrence. Injured Neetu was sent

for medical examination. Under the order of the Investigating Officer S.I.

Shri D.K. Sharma collected samples of blood through memo Ex. Ka 26 from

near the dead body of Kunti Devi. Similarly, samples of blood were

collected from near the dead bodies of other deceased persons through

4 memos Ex. Ka. 27 to Ex. Ka.3. The bed sheet lying on the cot of deceased

Shiv Singh was also taken into possession through memo Ex. Ka. 3. The

electric bulbs which are alleged to be giving light at the time of incident

were also inspected and Memo Ex. Ka. 32was prepared. The Kurta of

Injured Guddi which was stained with blood and had pellet marks was taken

into possession through memo Ex. Ka.33. The pieces of blood stained

bandh of cot of deceased Manjeet and Khushal were also taken into

possession through memo Ex. Ka. 34. The Investigating Officer also found

empty cartridges, bullet and wads at the scene of occurrence. They were also

taken into police custody through EX. Ka.35. He also interrogated Madhu

and Rikku and other villagers. A raid was made on the house of accused

Mukesh, Sattan and Guddu but they were not found. During investigation

complicity of other accused persons also came to light that they had hatched

conspiracy for the commission of the crime in question. Some of the

accused persons were arrested while others surrendered in court and after

completion of investigation charge sheet was prepared against all the

accused persons who had been either arrested by him or has surrendered in

court and also against Upendra alias Guddu, Pappu, Dheeraj and Devendra

who were then still absconding. Later on accused Pappu alias Amarjeet and

Rajveer were also arrested. It was also revealed that accused Upendra alias

5 Guddu was in jail after having been arrested in a case under Gangster Act.

Similarly, accused Dheeraj was in jail in connection with case Crime No.

628 of 1993 under Section 307 I.P.C.

Smt. Bala (PW.1) who is alleged to have herself received injuries

during the course of incident got the first information report Ex. Ka. I

scribed by Km. Guddi, her niece. Km. Guddi is also alleged to have

sustained injuries during the course of the same incident but she was

murdered before she could be examined in the trial court as a witness.

The case as set out in the first information report in short was that

some incident had occurred in the year 1986 between family members of

complainant and accused Mukesh and Guddu sons of Rajveer and the matter

was reported at the police station from complainant's side. A case was

proceeding in court at Hapur some time before the present incident and the

police had raided the house of accused Mukesh. Mukesh and Guddu, came

to the house of Sheo Pal Singh and gave threats to them saying that they had

not done good by getting his house raided. The accused persons were thus

bearing enmity with Sheo Pal and others.

6 It was further alleged in the report lodged by Smt. Bala that in the

night between 30/31 August, 1994 at about 12.30 A.M. Mukesh and Guddu

of her own village carrying country made pistols with them and accused

Sattan of village Lohari also having a country made pistols alongwith 4-5

unknown persons who were also having weapons like pistols, Dalkati, Lathi

etc. entered into her house. At that time electric bulbs were emitting light

inside and out side the house. The family members of her Jeth, Sheo pal

Singh were sleeping on cots outside the house. She herself (Smt. Bala) was

resting inside the house, while her husband Shiv Singh was sleeping on the

roof. The accused persons after making entry into the house immediately

started hurling abuses by name to her Jeth Sheo Pal Singh saying that he

was acting as an informer to police, hence he and his family would be

eliminated completely. Hearing it Sheo Pal got up and started running but

he was chased by accused Mukesh and Sattan and was shot dead in the Gher

of Devendra. Mukesh and Sattan then said that entire family should be

finished and thereafter accused persons killed Kunti Devi, wife; of Sheo Pal,

Khushal son of Sheo Pal and Manjeet son of Shiv Singh. They also injured

Neetu son of Sheo Pal, Guddi, daughter of Sheo Pal Singh and baby Kapil

about 3 years old son of' Shiv Singh. Mukesh and Sattan with his associates

climbed over the roof and murdered her husband Shiv Singh on the cot on

7 which he was sleeping. On hearing the sound of firing, villagers were

awakened and when they tried to come near the first informant's house,

accused persons made indiscriminate firing and said that if any one dared to

come nearer he would be shot dead and further that if anyone of them would

give evidence he would meet the same fate as that of deceased persons. On

the threats given by accused persons villagers retreated to their houses and

closed their doors. The firing incident caused a panic in the village and the

miscreants left the scene of occurrence brandishing their weapons.

Before adverting further it may be relevant to place the following

pedigree in order to show that all the deceased and injured persons were

members of same family.

HUKUM SINGH ! ! _____________________________________________ Sheo Pal Shiv Singh (Deceased) (Deceased)

Wife Kunti Devi Wife Smt. Bala (PW1) (Deceased) (Injured) 1 1 1 1 1 1 1 ____________________

8 1 Manjeet Kapil 1 (Deceased) (Injured) 1 1 1 _________________________________________ Khushal Guddi Neetu (Deceased) (Injured) (Injured and died later on)

From the above pedigree it would be evident that all the nine

members of family of Hukum Singh were present and sleeping in their

houses when this ghastly incident occurred. Four were of Shiv Singh's

family and rest belonged to Sheo Pal's family. All of them sustained

injuries. Smt. Bala, Baby Kapil and Km. Guddi survived but before

statement of Guddi could be recorded at the trial she was also murdered.

Baby Kapil was a child of about three years old. Thus the prosecution was

left with no alternative except to examine at the trial Smt. Bala, the sole

surviving member of the above two families.

At the trial from the prosecution side in all nine witnesses were

produced. Smt. Bala (PW 1) widow of deceased Shiv Singh corroborated

the facts stated by her in the FIR and further added that the assailants were

9 ten in number, out of whom she identified Mukesh, Guddu, Rakesh, Naresh,

Pappu, Sattan, Haripal son of Kiran Singh, Haripal son of Ram Charan,

Dhirendra alias Dheeraj. She further stated that Rakesh and Dhirendra were

having Balkati and rest had country made pistols. She also testified that

Sheo Pal, his wife Kunti Dcvi, his son Khushal, her Husband Shiv Singh

and her son Manjeet were murdered on the spot by the assailants with their

respective weapons, Neetu son of Sheo Pal, Km. Guddi, Baby Kapil and she

herself also suffered injuries at the hands of the accused persons. She further

stated that had the matter between accused and deceased persons been not

got compromised by accused Kripal, Rajveer, Devendra, Brij Pal and Ram

Pal, the incident in question would not have occurred. In this way it was

suggested that the aforesaid accused persons hatched a conspiracy with the

actual assailants to get the entire family of Sheo Pal and Shiv Singh wiped

out. She is the only eye witness examined at the trial.

As noted above, the trial court found the evidence of the witnesses to

be credible and cogent and directed conviction and imposed death sentence,

so far as the Sattan, Upendra, Hari Pal son of Kiran Singh and Hari pal son

of Ram Charan are concerned. It also found that the accusations relating to

Section 120B of the Act have been established so far as the Kripal, Brij Pal,

10 Devendra are concerned. The High Court analysed the evidence to hold that

the accusations so far as the Sattan, Upendra, are concerned have been

established. But further held that this was a case where there were certain

mitigating circumstances which warranted alteration of the death sentence

to life sentence.

The mitigating and extenuating circumstances pointed out to take the

view are as follows:

"(i) that number of casualties cannot be sole criterion for awarding

death sentence;

(ii) that though in a criminal case compromise was filed, the police

however at the instance of deceased Sheo Pal raided the house of accused

Mukesh and Guddu alias Upendra and this excited the accused to commit

the alleged crime;

(iii) that PW 1(smt. Bala) the sole eye witness did not assign

specific role to each of the two accused-respondents;

(iv) that according to FIR story, the three named accused persons

along with 4-5 others committed the crime and therefore, possibility of

unknown persons having taken the active part could not be ruled out;

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(v) that there is nothing on record to show that accused-

respondents Sattan alias Satyendra and Guddu alias Upendra acted in a

brutal and cruel manner while committing the crime;

(vi) that there is nothing on record to show that K. Guddu was

murdered during pendency of the case by the present accused-respondents,

so that there could be no evidence against them;

(vii) that the assailants did not do away with Smt. Bala (PW 1) Km.

Guddi (17 years), baby Kapil (3 years) and a child to screen the offence;

(viii) that the assailants showed mercy on Smt. Bala and did not

cause any harm to her; and

(ix) that respondent Sattan alias Satyendra was a young boy of 20

years of age at the time of incident."

5. It is submitted by learned counsel for the appellant that taking into

consideration the aforesaid circumstances the High Court came to an abrupt

conclusion that on consideration of aggravating and mitigating

circumstances the case does not fall within the category of rarest of rare

cases.

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6. Learned amicus Curiae appearing for the accused persons on the other

hand submitted that six circumstances were highlighted by the High Court.

7. Motive was not clearly established. No specific roles have been

ascribed. Ocular and medical evidence did not fit in. There is no crime

record of any of the accused persons and it cannot be said that they cannot

be reformed. Two views are possible. There was considerable lapse of time.

It is to be noted that according to the High Court the mitigating

circumstances show there is no criminal record of any of the accused

persons. There was no overt act attributed to each of the accused persons

and the number of deaths cannot be a criteria to decide as to whether death

sentence or life sentence to be imposed.

8. According to learned Amicus Curiae, incident was of the year 1992,

the death sentence was awarded in 1999 and by the impugned judgment

which is of the year 2000, alteration have been directed and at this length of

time there should not be any interference.

9. Before dealing with the position in law as highlighted by this Court

relating to rarest of rare categories where death sentence can be awarded,

13 submissions made by learned Amicus Curiae to show existence of

mitigating circumstances need to be noted. It is stated by learned Amicus

Curiae that motive is not clearly established. This is contrary to the

conclusions of the High Court. In fact, the High Court has treated that an

entire family was eliminated and if the evidence of Smt. Bala (PW 1) is

considered reliable and trustworthy, the inadequacy and insufficiency of

motive pales into significance and recedes behind the curtain. So far as the

specific overt acts are concerned, it is to be noted that apart from the

accused persons who faced trial three of these persons, namely, absconding

accused Mukesh Dhirendra and Rakesh were described as accused. Six

persons were killed. It is not expected that a lady witnessing such a

massacre would note the details.

10. This court has observed in Sahdeo v. State of U.P. [2004 SCC (Crl.)

1873] that though in the particular facts of the case the death sentence was

converted to imprisonment for life, yet it cannot be said that accused

persons cannot be awarded death sentence in cases where the conviction

was recorded under Section 302 read with Section 149 IPC. So far as the

alleged discrepancy between medical evidence and ocular evidence is

concerned, it is to be noted as rightly done by the High Court that the

14 incident occurred around mid night when six murders were committed one

after another. In such circumstances it was practically not possible for any

witness to ascribe pin pointed role or the kind of weapons with which blows

were given. In an incident when killing of so many persons took place, it

would be difficult for a witness to remember with precision the kind of

weapon used by a particular accused. It is to be noted that evidence of the

witnesses are not liable for rejection on the hypothetical so called medical

discrepancy. It is submitted by learned counsel for the respondent that

when number of death is not the determinative factor and since the High

Court about eight years back has altered the conviction, the life sentence

may be clarified to be one for 20 years as have been done in some cases for

example in Ram Anup Singh v. State of Bihar [2002(6) SCC 686].

11. The law regulates a social interests, arbitrates conflicting claims and

demands. Security of persons and property of the people is an essential

function of the State. It could be achieved through instrumentality of

criminal law. Undoubtedly, there is a cross cultural conflict where living

law must find answer to the new challenges and the courts are required to

mould the sentencing system to meet the challenges. The contagion of

lawlessness would undermine social order and lay it in ruins. Protection of

15 society and stamping out criminal proclivity must be the object of law

which must be achieved by imposing appropriate sentence. Therefore, law

as a corner-stone of the edifice of "order" should meet the challenges

confronting the society. Friedman in his "Law in Changing Society" stated

that, "State of criminal law continues to be - as it should be - a decisive

reflection of social consciousness of society". Therefore, in operating the

sentencing system, law should adopt the corrective machinery or the

deterrence based on factual matrix. By deft modulation sentencing process

be stern where it should be, and tempered with mercy where it warrants to

be. The facts and given circumstances in each case, the nature of the crime,

the manner in which it was planned and committed, the motive for

commission of the crime, the conduct of the accused, the nature of weapons

used and all other attending circumstances are relevant facts which would

enter into the area of consideration. For instance a murder committed due to

deep-seated mutual and personal rivalry may not call for penalty of death.

But an organised crime or mass murders of innocent people would call for

imposition of death sentence as deterrence. In Mahesh v. State of M.P.

(1987) 2 SCR 710), this Court while refusing to reduce the death sentence

observed thus:

16

"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."

12. Therefore, undue sympathy to impose inadequate sentence would do

more harm to the justice system to undermine the public confidence in the

efficacy of law and society could not long endure under such serious

threats. It is, therefore, the duty of every court to award proper sentence

having regard to the nature of the offence and the manner in which it was

executed or committed etc. This position was illuminatingly stated by this

Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

13. The criminal law adheres in general to the principle of proportionality

in prescribing liability according to the culpability of each kind of criminal

conduct. It ordinarily allows some significant discretion to the Judge in

arriving at a sentence in each case, presumably to permit sentences that

reflect more subtle considerations of culpability that are raised by the

special facts of each case. Judges in essence affirm that punishment ought

always to fit the crime; yet in practice sentences are determined largely by

17 other considerations. Sometimes it is the correctional needs of the

perpetrator that are offered to justify a sentence. Sometimes the desirability

of keeping him out of circulation, and sometimes even the tragic results of

his crime. Inevitably these considerations cause a departure from just desert

as the basis of punishment and create cases of apparent injustice that are

serious and widespread.

14. Proportion between crime and punishment is a goal respected in

principle, and in spite of errant notions, it remains a strong influence in the

determination of sentences. The practice of punishing all serious crimes

with equal severity is now unknown in civilized societies, but such a radical

departure from the principle of proportionality has disappeared from the law

only in recent times. Even now for a single grave infraction drastic

sentences are imposed. Anything less than a penalty of greatest severity for

any serious crime is thought then to be a measure of toleration that is

unwarranted and unwise. But in fact, quite apart from those considerations

that make punishment unjustifiable when it is out of proportion to the crime,

uniformly disproportionate punishment has some very undesirable practical

consequences.

18

15. After giving due consideration to the facts and circumstances of each

case, for deciding just and appropriate sentence to be awarded for an

offence, the aggravating and mitigating factors and circumstances in which

a crime has been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by the Court. Such

act of balancing is indeed a difficult task. It has been very aptly indicated in

Dennis Councle MCG Dautha v. State of Callifornia: 402 US 183: 28 L.D.

2d 711 that no formula of a foolproof nature is possible that would provide

a reasonable criterion in determining a just and appropriate punishment in

the infinite variety of circumstances that may affect the gravity of the crime.

In the absence of any foolproof formula which may provide any basis for

reasonable criteria to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary judgment in the facts of

each case, is the only way in which such judgment may be equitably

distinguished.

16. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353),

it has been held by this Court that in the matter of death sentence, the Courts

are required to answer new challenges and mould the sentencing system to

meet these challenges. The object should be to protect the society and to

19 deter the criminal in achieving the avowed object to law by imposing

appropriate sentence. It is expected that the Courts would operate the

sentencing system so as to impose such sentence which reflects the

conscience of the society and the sentencing process has to be stern where it

should be. Even though the principles were indicated in the background of

death sentence and life sentence, the logic applies to all cases where

appropriate sentence is the issue.

17. Imposition of sentence without considering its effect on the social

order in many cases may be in reality a futile exercise. The social impact of

the crime, e.g. where it relates to offences against women, dacoity,

kidnapping, misappropriation of public money, treason and other offences

involving moral turpitude or moral delinquency which have great impact on

social order, and public interest, cannot be lost sight of and per se require

exemplary treatment. Any liberal attitude by imposing meager sentences or

taking too sympathetic view merely on account of lapse of time in respect of

such offences will be result-wise counter productive in the long run and

against societal interest which needs to be cared for and strengthened by

string of deterrence inbuilt in the sentencing system.

20

18. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this

Court has observed that shockingly large number of criminals go

unpunished thereby increasingly, encouraging the criminals and in the

ultimate making justice suffer by weakening the system's creditability. The

imposition of appropriate punishment is the manner in which the Court

responds to the society's cry for justice against the criminal. Justice

demands that Courts should impose punishment befitting the crime so that

the Courts reflect public abhorrence of the crime. The Court must not only

keep in view the rights of the criminal but also the rights of the victim of the

crime and the society at large while considering the imposition of

appropriate punishment.

19. Similar view has also been expressed in Ravji v. State of Rajasthan,

(1996 (2) SCC 175). It has been held in the said case that it is the nature and

gravity of the crime but not the criminal, which are germane for

consideration of appropriate punishment in a criminal trial. The Court will

be failing in its duty if appropriate punishment is not awarded for a crime

which has been committed not only against the individual victim but also

against the society to which the criminal and victim belong. The

punishment to be awarded for a crime must not be irrelevant but it should

21 conform to and be consistent with the atrocity and brutality with which the

crime has been perpetrated, the enormity of the crime warranting public

abhorrence and it should "respond to the society's cry for justice against the

criminal". If for extremely heinous crime of murder perpetrated in a very

brutal manner without any provocation, most deterrent punishment is not

given, the case of deterrent punishment will lose its relevance.

20. These aspects have been elaborated in State of M.P. v. Munna

Choubey [2005 (2) SCC 712].

21. In Bachan Singh v. State of Punjab [1980 (2) SCC 684] a

Constitution Bench of this Court at para 132 summed up the position as

follows: (SCC p.729)

"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this

22 issue, is a ground among others, for rejecting the petitioners' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware -- as we shall presently show they were -- of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before Parliament and presumably considered by it when in 1972-73 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."

23

22. Similarly, in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in

para 38 the position was summed up as follows: (SCC p. 489)

"38. In this background the guidelines indicated in Bachan Singh's case (supra) 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's case (supra):

(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 up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck

24 between the aggravating and the mitigating circumstances before the option is exercised."

23. The position was again reiterated in Devender Pal Singh v. State of

NCT of Delhi [2002 (5) SCC 234 ] : (SCC p. 271, para 58)

"58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community 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 same can be awarded. It was observed:

The community may entertain such sentiment in the following circumstances:

(1) 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. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-

vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances

25 which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) 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.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."

24. If upon taking an overall global view of all the circumstances in the

light of the aforesaid propositions and taking into account the answers to the

questions posed by way of the test for the rarest of rare cases, the

circumstances of the case are such that death sentence is warranted, the

court would proceed to do so.

25. What is culled out from the decisions noted above is that while

deciding the question as to whether the extreme penalty of death sentence is

to be awarded, a balance sheet of aggravating and mitigating circumstances

has to be drawn up.

26

26. Lord Justice Denning, Master of the Rolls of the Court of Appeals in

England said to the Royal Commission on Capital Punishment in 1950:

"Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not."

In J.J. Rousseau's The Social Contract written in 1762, he says the following:

Again, every rogue who criminously attacks social rights becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved:

one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he broken the Social Contract, and so is no longer a member of the State.

27. The case at hand falls in the rarest of rare category. The depraved acts

of the accused call for only one sentence that is death sentence.

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28. The above position was highlighted in Bantu v. The State of U.P.

[2008(10) SCALE 336]

29. Murder of six members of a family including helpless women and

children having been committed in a brutal, diabolic and bristly manner and

the crime being one which is enormous in proportion which shocks the

conscious of law, the death sentence as awarded in respect of accused Sattan

and Guddu was the appropriate sentence and the High Court ought not to

have altered it. So far as the acquittal of the Hari Pal son of Kiran Singh

and Hari Pal son of Ram Charan are concerned, the High Court has noted

that the evidence so far as their involvement is concerned was not totally

free from doubt. The High Court have analysed the factual scenario in

detail to direct the acquittal. We find no reason to differ from the

conclusions of the High Court. The acquittal as directed stands affirmed.

So far as other four respondents i.e. appellants in Criminal Appeal No.2237

of 1999 is concerned they were charged under Section 120 B. It has been

recorded by the High Court that except the suspicion which the informant

was having in her mind about the involvement of these four accused persons

there was neither any direct or circumstantial evidence to fasten the charge

of criminal conspiracy. That being so the High Court was justified in

28 directing their acquittal. Criminal Appeal No. 314 is allowed. The State's

appeal so far as Sattan and Upendra are concerned is allowed to the extent

that the death sentence as was awarded by the trial court is restored so far as

they are concerned. The appeal fails so far as respondents Hari Pal son of

Kiran Singh and Hari Pal son of Ram Charan are concerned.

30. We record our appreciation for the able assistance rendered by Mr. M.

Karapaga Vinayagam, learned Amicus Curae.

.........................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 27, 2009

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