N Criminal Appeals Nos
78 79 80 84 85 86 87 and 88 89 of 1981 and 419 of 1982
Appeals by Special leave petitions from the Judgment and Order dated the Ist September 1980 of the Punjab and Haryana High Court in Murder Reference Nos 14 18 16 and 1979 and 1 of 1980 and Criminal Appeal Nos
1176 935 977 978 972 992 979 976 980 981 991 827 and 1105 of 1979
R L Kohli and R C Kohli for the Appellants
Harbans Singh and D D Sharma for the Respondent
The Humanists  on the other hand press for the other extreme viz death in no case
A synthesis has emerged in Bachan Singh vs State of Punjab1 wherein the rarest of rare cases formula for imposing death sentence in a murder case has been evolved by this Court
Identification of the guidelines spelled out in Bachan Singh  in order to determine whether or not death sentence should be imposed is one of the problems engaging our attention to which we will address ourselves in due course
A feud between two families has resulted in tragic consequences
Seventeen lives were lost in the course of a series of five incidents which occurred in quick succession in five different villages situated in the vicinity of each other in Punjab on a night one would like 416 to forget but cannot forget the night between August 12 and August 13 1977
The seventeen persons who lost their lives and the three who sustained injuries included men women and children related to one Amar Singh and his sister Piaro Bai
In this connection one Machhi Singh and his eleven companions
close relatives and associates were prosecuted in five sessions cases each pertaining to the concerned village in which the killings took place
Machhi Singh was the common accused at each trial
The composition of his co accused differed number wise and identity wise from trial to trial
At the conclusion of the series of trials the accused found guilty were convicted under appropriate provisions Four of them were awarded death sentence whereas sentence of imprisonment for life was imposed on nine of them
They were also convicted for different offences and appropriate punishment was inflicted on each of them in that behalf
The order of conviction and sentence gave rise to five murder references and fourteen appeals by the convicts before the High Court of Punjab and Haryana
The High Court heard every individual appeal separately but disposed of the group of appeals by a common Judgment for the sake of convenience
The present group of appeals is directed against the aforesaid judgment rendered by the High Court
We will treat each of the appeals compartmentally and separately on its own merits on the basis of the evidence recorded at the trial in each sessions case giving rise to the respective appeal
But for the sake of convenience we will dispose of the appeals by this common judgment
In order to avoid confusion the occurrence in each village will be adverted to in the same manner in which the High Court has done viz Crime No I IIA IIB III IV and V Motive The aspect regarding motive has been discussed exhaustively in the third paragraph of the elaborate judgment rendered by the High Court
We need not set out this aspect at length or examine it in depth This aspect need not therefore be adverted to in the context of each crime over and over again so as to avoid avoidable repetition
Suffice it to say that reprisal was the motive for the commission of the crime
Common Criticism The most serious criticism pressed into service by learned counsel for the appellants in each of the appeals is common
417 Instead of dealing with the identical criticism in the identical manner repeatedly in the context of each matter we propose to deal with it at this juncture
The criticism is this
It was a dark night
Electricity had not yet reached the concerned village at the material time
In each crime the appreciation of evidence regarding identification has to be made in the context of the fact situation that a lighted lantern was hanging in the court yard where the victims were sleeping on the cots
The light shed by the lantern cannot be considered to be sufficient enough such is the argument to enable the eye witnesses to identify the culprits
This argument has been rightly rebuffed by the Sessions Court and the High Court on the ground that villagers living in villages where electricity has not reached as yet get accustomed to seeing things in the light shed by the lantern
Their eyesight gets conditioned and becomes accustomed to the situation
Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light
Moreover identification did not pose any serious problem as the accused were known to the witnesses
In fact they were embroiled in a long standing family feud
As the culprits had not covered their faces to conceal their identity
it was not difficult to identify them from their facial features build gait etc
Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances
The concurrent finding of fact recorded by the Sessions Court and the High Court in this behalf does not therefore call for interference at the hands of this Court on this score
Now we will address ourselves to the facts pertaining to the individual appeals
CRIME No 1
The occurrence giving rise to the proceedings culminating in the appeal before this Court took place at Village Alahi Baksh Badla at about 830 pm on August 12 1977
Four members of the household of PW Amar Singh became the target of the assailants and lost their lives in the course of the murderous attack
The four victims were the wife and three sons of PW Amar Singh viz 1 Biban Bai aged about 45 2 Gurcharan Singh aged about 15 3 Jagtar Singh aged about 10 and 4 Balwant Singh aged about 9
As luck would have it Amar Singh the head of the 418 household and his 10 years old daughter PW Mohindo escaped the murderous assault and survived to tell the tale of the ghastly murder in the Court
Evidence of PW Amar Singh shows that on the unfortunate night he and the members of the household were sleeping in the courtyard
There was a lighted lantern in the courtyard which was placed on the small boundary wall of the kitchen
PW Amar Singh was sleeping on one cot
PW Mohindo his daughter who survived the attack was also sleeping in the same cot
Next to him was another cot on which his wife Biban Bai was sleeping
And an infant child was sleeping with her on the same cot
His two sons Gurcharan Singh and Kulwant Singh were sleeping together on another cot just nearby
PW Amar Singh suddenly woke up on hearing the noise of the barking of a dog since he was half awake being apprehensive of some trouble because of a murder case which was pending in a criminal court against his relations
Amar Singh sprang up on hearing the noise and instinctively went inside where some sarkana reeds were heaped and concealed himself there
He was peeping from his place of hiding and was able to see what was happening
Barely had he done so when he espied the five appellants who were known to him enter the courtyard
Appellant Machhi Singh and appellant Mohinder Singh were each armed with a rifle
Their three companions viz Appellant Bhajan Singh Kashmir Singh and Chinna Singh were armed with kirpans
Appellant Machhi Singh fired a shot at Biban Bai who was lying on the cot
At the same time appellant Mohinder Singh fired a shot at Balwant Singh who was lying on a cot
Appellant Machhi Singh then fired another shot at Jagtar Singh and yet another shot at Kulwant Singh
Appellant Mohinder Singh on his part fired a shot at Gurucharan Singh
It is the version of PW Amar Singh that his daughter PW Mohindo managed to get beneath the cot on which he was previously lying while the assailants were firing at the different victims
The three companions of appellants Machhi Singh and Mohinder Singh namely Kashimir Singh Chinna Singh and Bhajan Singh gave kirpan blows which were aimed at the head of Biban Bai who had already been injured by rifle shots
The kirpan blows did not fall on the head of Biban Bai but struck the upper surface of the table which was lying nearby
Thereafter all the five culprits fled from there with their respective weapons
After day break PW Amar Singh left the house in order to lodge a report of the occurrence with PW 31 Head Constable Wassan Singh
419 Seven persons were prosecuted in connection with this incident
Five of them have been acquitted
Only two of the original seven accused viz Appellants Machhi Singh and Mohinder Singh have been convicted for murder and sentenced to death
We propose to deal with the appeals preferred by them separately
Appellant Machhi Singh As far as Machhi Singh is concerned the finding of guilt recorded by the Session Court and affirmed by the High Court rests on the testimony of two eye witnesses viz PW Amar Singh and his 10 year old daughter PW Mohindo
Evidence has also been adduced to establish that one of the rifles used in the course of the murderous assault had been issued to Machhi Singh in his capacity as an officer of Punjab Homeguards
The evidence of the ballistic expert establishes that the said rifle had been recently used and some of the empty cartridges found from the scene of the occurrence were fired from this rifle
This evidence is further corroborated by the evidence pertaining to the recovery of the rifle at the instance of appellant Machhi Singh which has been accepted by the Sessions Court and the High Court
Learned Counsel for the appellant contended that the evidence of the two eye witnesses namely PW Amar Singh and PW Mohindo was not such as could be implicity relied upon and the rest of the evidence was neither sufficient nor satisfactory enough to bring home the guilt to appellant Machhi Singh
The Sessions Court and High Court have accepted the evidence of PW Amar Singh and his daughter PW Mohindo after close and careful scrutiny of the same
We do not think that there is any justification to take a different view in regard to the assessment of their evidence
The presence of Amar Singh and his daughter Mohindo at the scene of occurrence is natural inasmuch as the occurrence took place at the house of Amar Singh
Counsel for the appellant has assailed the finding recorded by the Sessions Court and affirmed by the High Court by pressing into service the argument that as there was only one lantern burning in the courtyard and as it was a dark night it being the 14th day of the second half of the lunar month Amar Singh and Mohindo could not have identified the culprits
It is no doubt true that it was a night preceding the amavashya 
All the same the evidence clearly shows that a lamp was burning in the courtyard
This aspect has already been dealt 420 with a short while ago
For the reasons indicated in the course of the earlier discussion we think that the concurrent view taken by the Sessions Court and the High Court that there was sufficient light to enable the identification of the culprits must be affirmed
Besides it is a pure question of appreciation of evidence which cannot be reagitated before us
Even so we have considered on our own the evidence on the point and we are satisfied that the view taken by the Sessions Court and the High Court is unexceptionable
Counsel for the appellant next contended that the evidence pertaining to the recovery of the rifle and the evidence adduced by the prosecution in order to establish that one of the rifles used in the course of the occurrence was issued to appellant Machhi Singh in his capacity as an officer of the Punjab Homeguards was not satisfactory and reliable
The Sessions Court and the High Court have accepted the prosecution evidence in this behalf
We have on our own perused the evidence and we see no reason to disbelieve the evidence connecting appellant Machhi Singh with the weapon of offence exhibit P 18
The evidence of PW 15 Shri Yashpal Platoon Commander of Punjab Homeguard is supported by entry Ex 32A in the Register relating to the issuance of arms and ammunitions to the volunteers of the Homeguards
The evidence of PW 32 Narinder Singh Quarter Master of Punjab Homeguards conclusively establishes that the rifle was issued to appellant Machhi Singh
The evidence shows that appellant was personally known to the witness
He also identified the signature of appellant Machhi Singh at point marked B 
It may be mentioned that in the course of his statement under Sec 313 of the Code of Criminal Procedure appellant Machhi Singh admitted that the signature at exhibit PW 32 A was his signature
Of course according to him the said signature had been obtained by the police under coercion
Unless we hold that the Investigating Officer and the Officers of the Homeguards had entered into a conspiracy to concoct evidence against Machhi Singh this evidence cannot be disbelieved
There is no warrant for such an assumption
Their evidence is otherwise flawless and has remained unshaken
We therefore see no reason to disbelieve the testimony of PW 32 Quarter Master Narendra Singh and PW 15 Platoon Commander Yashpal
On a close and careful scrutiny of the evidence on this point the Session s Court and the High Court have rightly reached the conclusion to the effect that rifle exhibit P18 was issued to appellant Machhi Singh in his capacity as a member of the Punjab Homeguards on February 12 1977 and that the said rifle and the ammunition had remained with appellant Machhi Singh ever 421 since
On a close scrutiny of the evidence on this point is unassailable and the view taken by the Sessions Court and the High Court is unimpeachable
The rifle in question exhibit P 18 and some live cartridges were recovered in pursuance of a statement made by appellant Machhi Singh
The evidence of PW 18 shows that the statement leading to the discovery of the aforesaid weapon was made by appellant Machhi Singh
The evidence also shows that appellant Machhi Singh led the police party which was accompanied by independent witnesses to the place from where rifle exhibit P 18 and live cartridges were recovered
The Sessions Court and the High Court have accepted this evidence and we do not see any reason to disbelieve the same
Thus the evidence clearly shows that appellant Machhi Singh had used the rifle by which shots were fired at the victims and that he was directly responsible for the killings
The order of conviction is therefore unassailable and must be confirmed
We will deal with the question of sentence at the fag end of the judgment
Appellant Mohinder Singh So far as appellant Mohinder Singh is concerned the evidence connecting him with the crime falls into two parts
The first part of the evidence consists of the evidence of PW Amar Singh and PW Mohindo
Both of them have implicated appellant Mohinder Singh appellant Machhi Singh whose case we have discussed a moment ago and the other three appellants
The criticism levelled in the context of appellant Machhi Singh has been repeated in the context of the evidence connecting appellant Mohinder Singh with the crime
We have already evaluated the evidence of these two eye witnesses
We need not therefore reiterate the same reasoning in the context of appellant Mohinder Singh for repelling the criticism on this score
The second part of the evidence connects appellant Mohinder Singh with the second rifle which was used in the course of the commission of the crime
The Sessions Court and the High Court have accepted the evidence on both these points
Counsel for the appellant has challenged the validity of the finding recorded by the Sessions Court and the High Court on these two points
In our opinion the most important evidence from this stand point is the evidence adduced by the prosecution in order to establish that appellant Mohinder Singh was in possession of the weapon of offence namely the second rifle which was used by the culprits
Counsel is right in his submission that the evidence on this point does not 422 satisfactorily establish the link
In fact the evidence shows that the second rifle used in the commission of the crime was originally issued to one Kashmir Singh
Thus a doubt is created in regard to the identity of the culprit who fired the second rifle
Admittedly the weapon in question was not issued to appellant Mohinder Singh
The weapon alongwith ammunition 20 rounds was originally issued to PW 27 Kashmir Singh by Punjab Homeguards B  Company on 16th October 1974
The official records evidence this fact
There is no record to show that this rifle was returned by PW 27
The evidence PW 27 that one Kaka Ram a Platoon Commander of Homeguards had taken back the rifle and the ammunition from him and handed over the same to appellant Mohinder Singh a few days before 13th April 1977 in the presence of PW 27 has been disbelieved by the Sessions Court
The High Court has not given any convincing reason to justify taking a different view
Thus the link between the weapon of offence and appellant Mohinder Singh is not established
In fact the evidence shows that it was issued to PW 27 some 3 years before the occurrence
Even if the prosecution evidence is accepted at its face value it does not establish that the weapon was with appellant Mohinder Singh at any point of time proximate to the point of time of the offence
Under the circumstances we are unable to agree with the High Court that appellant Mohinder Singh was in possession of the weapon of offence at the point of time of the offence
In view of this lacuna in the evidence we are unable to hold that the second rifle which was used in the commission of the crime was fired by appellant Mohinder Singh
This dimension gives rise to a dilemma
A piece of evidence introduced and relied upon by the prosecution itself creates a doubt a reasonable doubt as regards the complicity of the appellant
Though we do not see any infirmity in the evidence of PW Amar Singh and PW Mohindo in view of this factor which speaks in favour of the appellant we must invoke the doctrine of benefit of doubt
We accordingly accord the benefit of reasonable doubt to Appellant Mohinder Singh
The order of conviction and sentence in so far as he is concerned must therefore be set aside
We accordingly acquit Appellant Mohinder Singh and direct that he be set at liberty forthwith unless he is required to be detained in the context of some other order
423 Crime No II A  II B II A At about 9 10 pm on August 12 1977 nine persons intruded in the house of one Kahar Singh at village Sowaya Rai armed with deadly weapons including rifles pistols and kirpans
They killed two inmates of the household Smt
Ghamobai and Smt
Rajobai and injured the third one Smt
Nankobai by gun shots
II B From there they straightway proceeded to a place known as Kho Kunjuka  situated at a distance of about two furlongs from the said village
They forcibly intruded into the house of one Bishan Singh
They attacked the inmates of the house and killed Bishan Singh Smt
Paro and her child Balbir Singh by firing rifle shots
PW 2 Hakam Singh was lying on a cot outside the compound of the house of Bishan Singh
He was apprehensive of his life and fled from there
Two of the culprits viz Machhi Singh and Jagir Singh chased him and fired at him
As a result of this Hakam Singh sustained gun shot injuries
In connection with these two incidents the appellants were tried by the Sessions Court for various offences
The Sessions Court convicted the appellants for an offence under Sec
302 IPC read with Sec
149 IPC as in its view it was established beyond reasonable doubt that the nine appellants had formed an unlawful assembly with the common object of committing murder of Smt
Ghamobai Smt
Rajobai Smt
Parobai and Balbir Singh
The appellants were also found guilty of an attempt to commit the murder of PW 20 Nankobai and PW 22 Hakam Singh who sustained injuries by gun shots in the course of these incidents but who survived the murderous assaults to narrate the version of the incident before the Court
The Sessions Court imposed death penalty on three of the appellants viz Machhi Singh Kashmir Singh and Jagir Singh
The remaining six were sentenced to undergo imprisonment for life
The High Court confirmed the order of conviction and sentence and dismissed the appeals preferred by the appellants
II A So far as the first incident is concerned the conviction of the appellants rests on the testimony of three witnesses viz 424 PW 16 Kaka Ram PW 21 Bagicha Singh and PW 20 Smt
Nankobai
Out of these three witnesses the evidence of PW 20 Nankobai is of great significance inasmuch as she had herself sustained an injury by gun short on her head
The fact that Smt
Nankobai sustained gun shot injury in the course of this transaction is satisfactorily established by the medical evidence
Now PW 20 was an inmate of the Household of Kehar Singh
Her presence at the house was therefore natural
The medical evidence therefore fully corroborates and lends support to her version that she was one of the inmates of the household and was present at the scence of offence
Her presence at the time of the offence cannot therefore be disputed
She being an injured witness her evidence is entitled to great weight
There is an in built guarantee that she was an eye witness to the incident
Her evidence convincingly establishes that the appellants were the persons who had intruded in the house of Kehar Singh and committed the crime resulting in the death of Smt
Gamobai and Smt
Rajobai both of whom succumbed to the injuries inflicted on them
Her testimony further establishes that she herself was injured by the rifle shots in the course of the incident by appellant Kashmir Singh
It was a matter of sheer luck that PW 20 did not succumb to the injuries and survived to till the tale
There is no reason to doubt or disbelieve her testimony
It is no doubt true that she had remained unconscious for five or six days before she regained consciousness at the hospital
But then her evidence clearly shows that she had sustained the injury only after Smt
Gamobai and Smt
Rajobai were shot dead by the assailants
It was only after she sustained the injury that she became unconscious
Her evidence that she had witnessed the murderous assault on Smt
Gamobai and Sm
Rajobai and had identified the assailants has remained unshaken and has been accepted by the Sessions Court and the High Court
There is no valid reason to take a different view
The argument about insufficiency of light has already been negatived
The evidence of PW 20 is therefore sufficient to uphold the order of conviction recorded by the courts below
Furthermore there is the evidence of PW 16 Kaka Ram and PW 21 Bagicha Singh
PW 16 occupies a house in the neighborhood
He came out from the house upon hearing the report of fun fire
He was standing outside the house and had witnessed the incident
He had identified the appellants as the culprits
His evidence is reinforced by PW 21 Bagicha Singh who was sleeping on the roof of the adjoining house
He had also witnessed the incident and identified the assailants
They are not 425 shown to be interested witnesses who would concoct a story
Why should they do so  In fact they were exposing themselves to considerable risk
On probabilities therefore it is least likely that these two witnesses would falsely implicate the appellants
Their evidence has been accepted by the Sessions Court and the High Court
We see no reason to do otherwise The finding of guilt recorded by the Sessions Court and the High Court in regard to this incident must therefore be unhesitatingly confirmed
II B In so far as the second incident is concerned the most important witness is PW 22 Hakam Singh inasmuch as he himself had sustained injuries by gun shot in the course of the incident in question That he was present at the time of the occurrence and had witnessed the incident is therefore incapable of being disputed
It is difficult to believe that PW 22 who was himself chased by the assailants and was injured by gun shots would implicate persons other than the real culprits
His evidence further shows that two of the culprits viz appellant Machhi Singh and appellant Jagir Singh had chased him and fired the shots at him which caused injuries to him
The medical evidence fully supports his testimony and establishes that he had sustained gun shot injuries in the course of this incident
The evidence of this witness alone is sufficient to bring home the guilt to the appellants even if one were to exclude from consideration the evidence of PW 16 Kaka Ram and PW 21 Bagicha Singh
There is however no reasons to do so
Both of them have testified on oath that they had witnessed the incident
They are not shown to be interested witnesses there is no reason why they should falsely implicate the appellants and expose themselves to the obvious risk arising therefrom
The Sessions Court and the High Court were perfectly justified in accepting and acting upon the testimony of these two witnesses whose evidence lends further strength and support to the evidence of the injured witness viz PW 22 Hakam Singh
The stock criticism that the culprits could not have been identified in the light of the lantern which was hanging in the courtyard has already been dealt with and repelled earlier
We are therefore unable to accede to the argument advanced by the learned counsel for the appellants
The finding of guilt and the order of conviction must therefore be confirmed
As regards sentence the sentence of imprisonment of life imposed on six of the 426 appellants and the other sentences imposed on them have to be consequently confirmed
Their appeals will stand dismissed
So far as appellants Machhi Singh Kashmir Singh and Jagir Singh are concerned the Sessions Court has imposed death sentence on each of them
The High Court has confirmed it
On our part we will deal with the question of sentence imposed on them in the concluding part of our judgment
Crime No III One Wanjar Singh 65 and his grand son Satnam Singh 16 were killed by gun shots in the course of this incident at the house of Wanjar Singh in village Mamujoa at about 11 pm on the night of August 12 1977
The only inmate of the house who escaped was PW 16 Smt
Sabban the wife of Wanjar Singh who was narrated her story in the following manner She was sleeping in the courtyard of her house
At about 11 pm she woke up and saw appellant Machhi Singh armed with rifle and his two brothers appellant Chhina Singh and appellant Kashmir Singh armed with Kirpans standing near the feet of Satnam Singh who was sleeping on the cot
These three were accompanied by Appellants Mohinder Singh and Bhajan Singh who were armed with rifle and a kirpan respectively
Appellant Kashmir Singh flashed a torch at Satnam Singh
Thereupon appellant Machhi Singh fired two shots both of which hit Satnam Singh
Mohinder Singh fired two shots at her husband Wanjar Singh who was sleeping on a cot nearby
Wanjar Singh and her grand son Satnam Singh died on the spot on their cots
She shouted for help and began to cry
The Appellants who were about to leave turned back
Appellant Machhi Singh fired a shot at her which missed her but hit her bullock which was tied in the courtyard on its right leg
The witness raised an alarm and cried for help
But no one came during the night
At dawn Chowkidar Sardar Ram came to the spot
She requested him to remain near the dead bodies
She herself proceeded to police station Gur Mar Sahay and lodged FIR exhibit PW 10B
The presence of Smt
Sabhan at her own house at night time is but natural
Her husband and her grand son have been killed
She is the lone survivor of the household
Her evidence therefore assumes great importance
It is inconceivable that the witness who 427 has lost her husband as also her grand son would implicate persons other than the real culprits
The only argument pressed into service was the stock argument regarding insufficiency of light
It was negatived by the courts below
We have already dealt with and negatived this argument for reasons indicated earlier
Her evidence furthermore shows that appellant Kashmir Singh had flashed his torch at her husband Wanjar Singh and at her grand son Satnam Singh
That she herself remained alive to tell the tale was a stroke of luck
The appellants had shot at her but the rifle shot hit the bullock instead of hitting her
The culprits were naturally in a hurry to get away
They would not have waited to ascertain whether she was hit
Her evidence remains unshaken
The Courts below have therefore rightly considered it to be creditworthy and safe for being acted upon
And yet with regard to appellant Mohinder Singh who is alleged to have used the second rifle the matter stands on a somewhat different footing
The evidence connecting the appellant with the rifle in question in the present case is the very same evidence that we have disbelieved in the context of crime No 1
Official records show and it is the case of the prosecution itself that the rifle was issued to PW 15 Kashmir Singh on 16th October 1974
The evidence adduced in order to show that it was taken back and handed over to appellant Mohinder Singh a few days before 13th April 1977 does not inspire confidence
We agree with the reasoning of the Sessions Court
We need not repeat the reasons which we have set out at some length in the course of discussion pertaining to crime No 1
Suffice it to say that the doctrine of benefit of doubt requires to be invoked on the facts of this case
We accordingly allow the appeal of Mohinder Singh set aside the order of conviction and sentence passed against him and direct that he be set at liberty forthwith unless he is required to be detained in some other connection
In so far as the rest of the appellants are concerned the evidence of this witness has been accepted and acted upon by the Sessions Court and the High Court and we do not see any reason to do otherwise
Under the circumstances the finding of guilt recorded by the Sessions Court and the High Court for the aforesaid offence against the other appellants must be confirmed
Turning to the question of sentence a death sentence has been imposed on Machhi Singh
We will consider the question as to whether death sentence is called for in the concluding part of our judgment
In so far as the rest of the appellants are concerned the sentence of 428 imprisonment for life and the other sentence imposed on each of them must be confirmed
Their appeals will therefore stand dismissed
Crime No IV The incident occurred at Village Kamrewala at about 1 am on the night between 12th August and 13th August 1977
Mohinder Singh aged about 32 the brother of Amar Singh was shot dead
The FIR was lodged within half an hour at about 130 am by Piaro Bai wife of victim Mohinder Singh
The evidence of Piaro Bai shows that one Jaggar Singh was a guest at their house on that night
Her husband Mohinder Singh was sleeping on one cot
The guest PW 4 Jaggar Singh was sleeping on another cot nearby him
The witness herself was sleeping on a cot alongwith her two children in the courtyard
A lighted lantern was hanging on a peg on the wall
At about 1 am someone from outside the house shouted for her husband
She woke him up and told him about it Her husband was in the process of sitting up on the cot when five persons intruded into the courtyard
Only one of the five intruders Machhi Singh was known to her
The remaining four were not known to her One of them was armed with a rifle and the rest were armed with kirpans
Appellant Machhi Singh fired a rifle shot which hit her husband near the shoulder
Her husband succumbed to the injury on the spot
The culprits thereafter left the house
She proceeded to the police station at Jalalabad accompanied by PW Harnam Singh and lodged the FIR at 130 am
The evidence of PW 2 Piaro Bai and PW 4 Jaggar Singh is reliable and trustworthy and can be safely acted upon in order to bring home guilt to Appellant Machhi Singh
Her presence at her own house at night time is but natural
The evidence of PW 4 Jaggar Singh also corroborates the evidence regarding her presence and the occurrence
PW 2 has not implicated by name anyone other than Appellant Machhi Singh in her FIR Her evidence is to the effect that the companions of appellant Machhi Singh were not known to her
This shows that she is a conscientious witness
The usual argument regarding inadequacy of light must be rejected for the reasons indicated earlier
In this case the FIR was lodged within half an hour of the occurrence
The evidence of PW 4 who was a guest at the house fully corroborates the testimony of PW 2
The evidence shows that his statement was recorded at 4 o clock in the night that is to say within three hours of the occurrence
His 429 evidence also shows that appellant Machhi Singh had fired the rifle shot
This evidence has been rightly accepted and acted upon by the Sessions Court and the High Court
We see no reason to dislodge this concurrent finding of fact
We must therefore confirm the finding of guilt recorded by the Sessions Court as affirmed by the High Court in so far as appellant Machhi Singh is concerned
We will deal with the question of sentence at a subsequent stage
Crime No V At about 330 am on the night between August 12 and August 13 1977 five miscreants armed with deadly weapons effected forcible entry in the house of one Ujagar Singh at village Dandi Khur
They attacked the inmates and killed his sister Palobai 35 and four near relatives of Palibai viz 1 her father in law Sahib Singh 70 2 her mother in law Mattobai 60 3 her husband Jit Singh 35 4 last named Jit Singh s cousin Mukhtiar Singh 25
Out of these five victims three died on the spot whereas two viz Sahib Singh and Mukhtiar Singh sustained rifle shot injuries and died at the hospital some five days later on August 16 1977 and August 18 1977 respectively
The incident occurred at about 330
am and the FIR was lodged within about six hours at 930 am by PW 37 Ujagar Singh
The order of conviction passed by the Sessions Court and affirmed by the High Court is inter alia based on the dying declaration of Mukhtiar Singh
He was fired at and injured soon after midnight in the early morning of August 13
He was removed to hospital on that very day
His police statement which has been subsequently treated as a dying declaration was recorded on the 16th ie three days after the assault
He died on the 18th two days later
The evidence shows that he was in fit condition to make a statement and his statement was truly and faithfully recorded
His statement has been considered to be genuine and true by the Sessions Court and the High Court
We are of the same opinion
It is true that the dying declaration has not been recorded by a magistrate
But then the evidence shows that Mukhtiar Singh was making good recovery and having regard to the condition of his health no danger to his life was apprehended
It was in this situation that a magistrate was not summoned
Thus no fault can be legitimately found on this score
Besides the only question of importance now is as regards the creditworthiness of the statement which has been recorded
Since this statement has been found to be genuine and 430 true nothing can detract from its value
The evidence provided by the dying declaration is by itself good enough to support the order of conviction
But this is not all
Also available is the evidence of PW 37 Ujagar Singh and his daughter in law Munibai PW 38
The evidence of these two witnesses lends full corroboration to the dying declaration of the victim and has been rightly relied upon by the Sessions Court and the High Court
We have no reason to view the evidence askance
The presence of these two witnesses in the household was natural
Their evidence shows that on hearing the report of gun they had concealed themselves behind a herd of cattle and had witnessed the incident from there
We have no reason to disagree with the view of the Sessions Court and the High Court that their evidence is reliable
There is no substance in the argument that the culprits could not have been identified as the light shed by the lantern was not adequate to enable identification
We have already spelled out our reasons for repelling this contention
The finding of guilt is thus fully supported by evidence
We accordingly confirm the same unhesitatingly
Two of the five appellants viz Machhi Singh and Jagir Singh have been sentenced to death
We will deal with the question of sentence in so far as they are concerned after a shortwhile
In regard to the remaining three viz Phuman Singh Jagtar Singh and Kashmir Singh son of Wadhawa Singh the sentence imposed by the courts below for the offence under Sec
302 read with 149 of IPC and other offences must be confirmed
Their appeals will stand dismissed
Death Sentence Having dealt with the appeals on merits from the stand point of proof of guilt and validity or otherwise of the order of conviction we now come face to face with the problem indicated when the curtain was lifted namely the application of the rarest of rare cases rule to the facts of individual cases in the context of the relevant guidelines
Some reflections on the question of death penalty may appropriately be made before we tackle the said question in the perspective of the present group of appeals
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 431 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 to 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 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 entrain 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 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
iiiWhen the body of the victim is cut into pieces or his body is dismembered in a fiendish manner
II Motive for Commission of murder When the murder is committed for a motive which evince total depravity and meanness
For instance when a a hired assassin commits murder for the sake of money or reward 2 a cold blooded 432 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 dominating position or in a position of trust
c a murder is committed in the course for betrayal of the motherland
III Anti Social or Socially abhorrent nature of the crime a When murder 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 with a view to reverse past injustices and in order to restore the social balance
b In cases of bride burning  and what are known as 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
IV Magnitude of Crime 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 af murder 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
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 sentences arises
The following propositions emerge from Bachan Singh s case 433 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 alongwith the circumstances of the crime 
iiiLife 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 has 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
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  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 here in above the circumstances of the case are such that death sentence is warranted the court would proceed to do so 434 In the present group of appeals we are now concerned with the death sentence imposed on appellants i Machhi Singh ii Kashmir Singh iii Jagir Singh by the Sessions Court as confirmed by the High Court
Machhi Singh The High Court in its extremely well considered judgment has assigned the following reasons for imposing death penalty on appellant Machhi Singh in the context of each of the six crimes
We can do no better than to quote the said reasons in the very words employed by the High Court in the context of each crime Crime No 1 Crl
Appeal No 78 7981 Common Machhi Singh killed Biban Bai and Jagtar Singh whereas Mohinder Singh killed Balwant Singh and Gurcharan Singh which has attracted on them death penalty
Now the circumstances of the case do reveal that it was a cold blooded murder and the victims were helpless and undefended
And what was their fault except that they were the immediate family of Amar Singh
The offence committed was of an exceptionally depraved and heinous character
The manner of its execution and its design would put it at the level of extreme atrocity and cruelty
The deceased woman and her children had offered no offence to Machhi Singh and Mohinder Singh
 CRIME NO11 Crl Appeal No80 8481 Common We have found that two innocent helpless women named Ghamo Bai and Rajo Bai were brutally killed in a helpless and defenceless state in their own house and similarly a veteran couple namely Bishan Singh and his wife Paro Bai were killed by Machhi Singh and Jagir Singh appellants in similar circumstances
The crime committed carries features which could be utterly horrendous especially when we know the weapons and the manner of their use
The victims could offer no resistance to the accused appellants
The law clamours for a sterner sentence the crime being heinous atrocious and cruel CRIME NO 111 Crl Appeal No 85 8681 Common An old man Wanjar Singh and young man Satnam Singh were put to death for which Machhi Singh was sentenced to death for committing the murder of the latter and Mohinder Singh was 435 sentenced to death for committing the murder of the former
These two defenceless and helpless men were put to death while asleep
The crime was gruesome and cold blooded revealing the propensity of the accused appellants to commit murder CRIME NO
IV Crl
Appeal No 8781 Common A young man named Mohinder Singh a bread earner of the family was put to death by Machhi Singh while asleep in his blissful abode
The crime was pre mediated and hair raising to the society at large in the sequence of which it came to be committed creating a great risk of serious bodily harm and death to many persons
 CRIME NOV Crl
Appeal Na 88 8981
Common Sahib Singh Mukhtiar Singh Manto Bai Palo Bai and Jita Singh were killed by five men including Machhi Singh and Jagir Singh appellants
Both these appellants pursued a course of utter cruelty and atrocity
Not only were the crimes cold blooded calculated and gruesome in features these had been committed while spreading horror of a killing spree
They put to death a young newly married couple and rendered a young woman a widow
The helpless state of the victims and the circumstances of the case lead us to confirm the death sentence Jagir Singh Insofar as appellant Jagir Singh is concerned death sentence has been imposed on him by the Sessions Court and confirmed by the High Court in relation to Crime No 11A B and V The High Court has observed thus in the context of the relevant crime CRIME NO
11A  B Crl
Appeal No 80 8481
Common We have found that two innocent helpless women named Ghamo Bai and Rajo Bai were killed in a helpless and defenceless state in their own house and similarly a veteran couple namely Bishan Singh and his wife Paro Bai were killed by Machhi Singh and Jagir Singh appellants in similar circumstances
The crime committed carries features which could be utterly horrendous especially when we know the weapons and their manner of use
The victims could offer no resistance to the accused appellants
The law clamours for a sterner sentence the crime being heinous atrocious and cruel 436 CRIME NO
V Crl
Appeal No 88 8981
Common Sahib Singh Mukhtiar Singh Manto Bai Palo Bai and Jita Singh were killed by five men including Machhi Singh and Jagir Singh appellants
Both these appellants pursued a course of utter cruelty and atrocity
Not only were the crimes cold blooded calculated and gruesome in features these had been committed while spreading horror of a killing spree
They put to death a young newly married couple and rendered a young woman a widow
The helpless state of the victims and the circumstances of the case lead us to confirm the death sentence Kashmir Singh So Arjan Singh In so far as appellant Kashmir Singh so Arjan Singh is concerned death sentence has been imposed on him by the Sessions Court and confirmed by the High Court for the following reasons Similarly Kashmir Singh appellant caused the death of a child Balbir Singh aged six years while asleep a poor defenceless life put off by a depraved mind reflecting grave propensity to commit murder
 We are of the opinion that insofar as these three appellants are concerned the rarest of rare cases rule prescribed in Bachan Singh s case Supra is clearly attracted and sentence of death is called for
We are unable to persuade ourselves that a sentence of imprisonment for life will be adequate in the circumstances of the crime
We therefore fully uphold the view concurrently taken by the Sessions Court and the High Court that extreme penalty of death requires to be imposed on appellants 1 Machhi Singh 2 Kashmir Singh son of Arjan Singh 3 Jagir Singh
We accordingly confirm the death sentence imposed on them and dismiss their appeals
In the result we pass the following order I  Appeals preferred by appellant Mohinder Singh being Crl
Appeals Nos
7981  86 of 1981 are allowed
The order of conviction and sentence passed by the lower courts in so far as he is concerned are set aside
He shall be set at liberty forthwith unless he is required to be detained in connection with some other offence or in connection with some other orders authorizing his detention
437 II In regard to the rest of the appeals by the rest of the appellants the orders of conviction and sentence passed by the lower courts are confirmed and all the appeals shall stand dismissed
The sentence of imprisonment under various counts and sentence imposed on the concerned appellant in allied appeals will run concurrently
III The death sentence imposed on the appellants named hereafter viz i Machhi Singh ii Kashmir Singh so Arjan Singh iii Jagir Singh having been confirmed the sentence shall be executed in accordance with law
IV Death sentence has separately been imposed on Appellant Machhi Singh in all the matters
By the very nature of things the sentence will be deemed to have been executed in all the cases if it is executed once
V Appellants in Crl
A No 41982 viz i Phuman Singh ii Jagtar Singh and iii Kashmir Singh so Wadhawa Singh who are on bail pursuant to the order passed by this Court on September 15 1982 shall surrender to their bail bonds in order to undergo the sentence imposed by the lower courts and confirmed by this Court
Their bail bonds shall stand cancelled
Such of the other appellants if any who are on bail shall surrender in order to undergo the sentence imposed by the lower courts as confirmed by this Court and their bail bonds shall stand cancelled
SR Crl
Appeals 7981 and 8681 allowed  other appeals dismissed


Summary:
A feud between two families has resulted in tragic consequences
Seventeen lives were lost in the course of a series of five incidents which occurred in quick succession in five different villages situated in the vicinity of each other in Punjab on the night between August 12 and August 13 1977
The seventeen persons who lost their lives and the three who substained injuries included men women and children related to one Amar Singh and his sister Piaro Bai
In this connection one Machhi Singh and his eleven companions close relatives and associates were prosecuted in five sessions cases each pertaining to the concerned village in which the killings took place
Machhi Singh was the common accused at each trial
The composition of his co accused differed number wise and identity wise from trial to trial At the conclusion of the series of trials the accused found guilty were convicted under appropriate provisions
Four of them were awarded death sentence whereas sentence of imprisonment for life was imposed on nine of them
They were also convicted for different offences and appropriate punishment was inflicted on each of them in that behalf
The order of conviction and sentence gave rise to five murder references and fourteen appeals by the convicts before the High Court of Punjab and Haryana
Having lost their appeals and the death sentences having been con firmed the appellants have come in appeal by way of special leave
The Court considered the following a What normal guidelines are to be followed so as to identify the rarest of rare cases formula for imposing death sentence as spelled out in Bachan Singh vs State of Punjab  b Reliability of eye witnesses to a crime under light shed by the lantern in a village to identify connect an accused to the crime c invocation of the doctrine of benefit of doubt 414 and d the effect of non summoning the magistrate for recording dying declaration
Allowing the Criminal Appeals Nos 7981 and 8681 and dismissing the other appeals the Court  HELD  11
The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability
Before opting for the death penalty the circumstances of the offender  also require to be taken into consideration alongwith the circumstances of the crime 
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
A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has 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
433 A E Bachan Singh vs State of Punjab  relied on 12
In order to apply these guidelines inter alia the following questions may be asked and answers  a Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and called 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
433 E G 13
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 here in above the circumstances of the case are such that death sentence is warranted the court would proceed to do so
433 G H 2
The villagers living in villages where electricity has not reached as yet get accustomed to seeing things in the light shed by the lantern
Their eyesight gets conditioned and becomes accustomed to the situation
Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light
Paucity of light cannot therefore improbablise the commission of the crime by the accused
417 C D 31
When a piece of evidence introduced and relied upon by the prosecution itself creates a doubt a reasonable doubt as regards the complicity of the accused even if there are no infirmities in other evidence the doctrine of benefit of doubt must be invoked by the court in favour of the accused
422 F G 415 In the instant case though there is no infirmity in the evidence of PW Amar Singh and PW Mohindo to connect Mohinder Singh to the crime the fact that the second rifle used in the commission of crime having been originally issued to one Kashmir Singh does not satisfactorily establish the link
422 B E F 32
When the deceased was making good recovery and having regard to the condition of his health no danger to his life was apprehended and therefore in that fact situation the magistrate was not summoned no fault can legitimately be found on this score for getting the benefit of doubt in favour of the accused
Any statement made to the police by such deceased can be subsequently allowed to be treated as dying declaration and evidence scanned
429 G H