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S TATE OF PUNJAB versus G URVAIL S INGH ALIAS G ELA & ANR

High Court of Punjab and Haryana, Chandigarh

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S tate of Punjab v. G urvail S ingh alias G ela & Anr - MRC-10-2005 [2006] RD-P&H 7233 (14 September 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : September 22, 2006

1. Murder Reference No. 10 of 2005 State of Punjab Vs. Gurvail Singh alias Gela and another

2. Criminal Appeal No. 890-DB of 2005 Gurvail Singh alias Gela and others Vs. State of Punjab

3. Criminal Appeal No. 667-SB of 2005 Satnam Singh Vs. State of Punjab

Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : Ms. Baljeet Kaur Mann, Advocate, for the appellants.

Mr. MS Sidhu, Senior Deputy Advocate General, Punjab.

Mr. A.P.S.Randhawa, Advocate, for the complainant.

Virender Singh, J.

Vide this judgment we are disposing of the aforesaid Murder Reference and two appeals filed by four appellants, namely, Gurvail Singh alias Gela, Satnam Singh, Amarjit Kaur and Jaj Singh.

The learned Additional Sessions Judge (Adhoc) Amritsar vide impugned judgment dated 27.1.2005/5.2.2005, has awarded death sentence to Gurvail Singh alias Gela and Jaj Singh appellants whereas Amarjit Kaur wife of Jaswant Singh is awarded life imprisonment. Satnam Singh son of Jaswant Singh (declared Juvenile), the fourth accused after being convicted by the trial court was sent to Juvenile Justice Board, Faridkot for passing of appropriate sentence in accordance with law. The Principal Magistrate, Juvenile Justice Board, Faridabad, vide impugned order dated 18.3.2005 has sentenced him to five years commencing from the date of the order.

Record reveals that this Court while admitting the appeal of Satnam Singh vide order dated 6.5.2005 had observed that ordinarily the appeal against an order of the Juvenile Board would lie before the Sessions Judge but since the trial of this case was completed by the Additional Sessions Judge who had recorded the conviction, therefore, his appeal was ordered to be heard by this Court only. Consequently, Criminal Appeal No. 667-SB of 2005 filed by him is being heard along with Criminal Appeal No. 890-DB of 2005 and Murder Reference.

Another fact which needs mentioning is that after the case of Gurvail Singh and Jaj Singh was submitted to this Court for confirmation of the death sentence imposed upon them, the present Murder Reference was registered as Reference No. 3 of 2005. This Court, however, had not appreciated the order of sentence passed by the trial court observing that provisions of section 31 of the Code of Criminal Procedure were ignored as the trial court was required to pass separate sentence on each of the charge which was framed against Gurvail Singh, Jaj Singh and Amarjit Kaur whereas only one sentence was imposed on the appellants for the murders of four persons, namely, Kulwant Singh, Sarabjit Kaur, Gurvinder Singh and Davinder Singh for which they were convicted. However, in the case of Satnam Singh, no irregularity was noticed. Consequently, vide order dated 8.9.2005, the order of sentence passed by the trial court in relation to Gurvail Singh alias Gela, Jaj Singh and Amarjit Kaur, was set aside and the case was remitted to the trial court for hearing the aforesaid three appellants on the question of sentence afresh. The appeal filed by Satnam Singh was segregated for the time being. The learned trial court thereafter heard the aforesaid three appellants once again with regard to quantum of sentence and passed the following order:-

1. Amarjit Kaur is sentenced as under:- i) Under Section 302/34 IPC for the murder of Kulwant Singh, committed by Jaj Singh, accused-convict in furtherance of the common intention, she is sentenced to undergo life imprisonment and to pay fine of Rs 2000/- and in default to undergo two months R.I.

ii)U/s 302/34 IPC for the murder of Sarabjit Kaur, committed by Satnam Singh in furtherance of their common intention, she is sentenced to life imprisonment and to pay fine of Rs 2000/- and in default to undergo two months R.I.

iii)Under section 302/34 IPC for the murder of Gurvinder Singh, committed by Gurvail Singh @ Gela in furtherance of their common intention, she is sentenced to life imprisonment and to pay fine of Rs 2000/- and in default to undergo two months R.I.

iv)U/s 302/34 IPC for the murder of Davinder Singh, committed by Gurvail Singh @ Gela, in furtherance of their common intention, she is sentenced to life imprisonment and to pay fine of Rs 2000/- and in default to undergo two months R.I.

All her sentences to run concurrently.

2. Jaj Singh, is sentenced as under:- i) Jaj Singh is sentenced u/s 302 IPC to death and to pay fine of Rs 2000/- and in default to undergo 2 months R.I. for the murder of Kulwant Singh, committed by him.

ii)U/s 302/34 IPC for the murder of Sarabjit Kaur committed by Satnam Singh in furtherance of their common intention, he is sentenced to death and to pay fine of Rs 2000/- and in default two months R.I.

iii)U/s 302/34 IPC for the murder of Gurvinder Singh committed by Gurvail Singh in furtherance of their common intention, he is sentenced to death and to pay fine of Rs 2000/- and in default two months R.I.

iv)U/s 302/34 IPC for the murder of Davinder Singh committed by Gurvail Singh in furtherance of their common intention, he is sentenced to death and to pay fine of Rs 2000/- and in default two months R.I.

3. Gurvail Singh alias Gela is sentenced as under:- i) U/s 302 IPC for the murder of Gurvinder Singh, committed by him, he is sentenced to death and to pay fine of Rs 2000/- and in default, two months R.I.

ii)U/s 302 IPC for the murder of Davinder Singh, committed by him, he is sentenced to death and to pay fine of Rs 2000/- and in default, two months R.I.

iii)U/s 302/34 IPC for the murder of Kulwant Singh, committed by Jaj Singh, in furtherance of their common intention, he is sentenced to death and to pay fine of Rs 2000/- and in default, two months R.I.

iv)U/s 302/34 IPC for the murder of Sarabjit Kaur, committed by Satnam Singh, he is further sentenced to death and to pay fine of Rs 2000/- and in default, two months R.I.

Since Gurvail Singh and Jaj Singh were sentenced to death, the learned trial court forwarded their case once again to this court for confirmation which is now registered as Murder Reference No. 10 of 2005.

Kulwant Singh aged 40 years son of Sharam Singh (PW1, the first informant), Sarabjit Kaur aged 30 years wife of Kulwant Singh and his two sons Gurvinder Singh aged 13 years and Davinder Singh aged 11 have lost their lives in this cold blooded murder. From the appellant side except Gurvail Singh, the other three appellants are also from the family of Sharam Singh. They are wife and two sons of Jaswant Singh the other son of Sharam Singh. Appellant Gurvail Singh was working as servant with Amarjit Kaur in her fields ( in village parlance known as Siri).

Sharam Singh had three sons, namely, Jaswant Singh, Balwant Singh and Kulwant Singh. Jaswant Singh and Balwant Singh had died before the occurrence. Sharam Singh had separated his sons and their families were living in their own house and he used to stay with Kulwant Singh (since deceased). Amarjit Kaur and her two sons (appellants herein) used to quarrel with Sharam Singh as they wanted to have the landed property of their share transferred to them and were suspecting that Sharam Singh was under the influence of Kulwant Singh deceased. About 8/9 days prior to the occurrence, Jaj Singh, Satnam Singh and Gurvail Singh approached Sharam Singh and protested that despite their request made to him many times he was not agreeing to have the land of their share transferred to them and they had come to him for the last time and in case he will not transfer the land, they would not spare him and his son Kulwant Singh. On 20.8.2000, all the appellants were found sitting on a cot outside the house of Sharam Singh underneath trees talking that they had to teach Sharam Singh and Kulwant Singh a lesson. This is the motive projected by the prosecution which resulted into this incident.

On the night intervening 20/21.8.2000, Sharam Singh PW1 was sleeping in drawing room (baithak) of his house and Kulwant Singh, Sarabjit Kaur, Gurvinder Singh and Davinder Singh were sleeping in the court-yard when at about 1/1.30 AM, he heard knocking at the door of the house and saw through the window in the electric light, appellants Jaj Singh armed with Datar (exhibited), Gurvail Singh alias Gela carrying Toka (exhibited), Satnam Singh having kirpan (exhibited) and Amarjit Kaur empty handed going towards deceased. Jaj Singh opened the assault and gave Datar blow to Kulwant Singh and his brother Satnam Singh inflicted kirpan blows to Sarabjit Kaur. Gurvail Singh who was armed with Toka started assaulting Gurvinder Singh and Davinder Singh. Amarjit Kaur was exhorting the appellants (three co-accused) that no one should be left alive and they would take whole of the landed property. Sharam Singh requested them not to kill Kulwant Singh and others, upon which Amarjit Kaur shouted that after setting them (Kulwant Singh and others) right, they would take care of him (Sharam Singh) and came towards his drawing room (baithak). He bolted the door from inside which could not be opened by them and the appellants threatened him that in case he talked to any one or raise noise he would not be spared by them. They also chained the door of the drawing room (baithak) from outside. At day dawn Sharam Singh raised hue and cry which attracted Dilbagh Singh son of Bachan Singh who came there and opened the door of the baithak. All the aforesaid four persons were dead by that time and there were many injuries on their persons.

Sharam Singh after leaving Dilbagh Singh at the scene of crime left for the Police Station, when SI Mandip Singh (PW7) SHO of Police Station Raja Sansi met him at the bridge of the canal in the area of Bagge Kalan; who recorded his statement Ex. PA at 8.30 AM; endorsed it vide Ex. PA/1, upon which formal FIR Ex. PA/3 was recorded at 9.30 AM under sections 302/34 IPC at Police Station Raja Sansi (Amritsar). The distance between Police Station and the place of occurrence is 7 kilometers whereas the distance between Bagge Kalan and place of occurrence is 2 kilometers.

Special report was sent by ASI Iqbal Singh (not produced) through Constable Jagir Singh PW4 to the Ilaqa Magistrate (SDJM, Ajnala) which reached him at 11.00 AM on 21.8.2000 itself. The distance between the two is 14 kilometers as is clear from the statement of aforesaid Jagir Singh who otherwise has tendered his affidavit Ex. PJ.

After taking up the investigation, SI Mandip Singh sent a requisition for sending the dog squad and a photographer. He along with Sharam Singh reached the place of occurrence, recorded statement of Dilbagh Singh who was found sitting there. The dog squad also reached there. ASI Kapal Dev (PW6) a Police photographer clicked certain photographs of the scene of occurrence. Inquest reports of all the four dead bodies were prepared and thereafter sent them for the purpose of post mortem examination through police officials. Blood stained earth was lifted from the place of occurrence which was put in a small box (dabbi) Exh.

PN/1 and sealed with the seal of 'MS'. The same was taken into possession vide memo Ex. PN/2. Rough site plan Ex. PN/3 was also prepared. One driving licence in the name of Jaj Singh appellant bearing No. 23112 was recovered from the place of occurrence and the same was also taken into possession vide memo Ex. PN/4. Two police officials were deputed for the arrest of the appellants but no clue could be found even after dog squad was put in operation. All the accused were found absconding from their respective residence. After the post mortem examination, the clothes of the deceased and other articles which were produced by the police officials to SI Mandip Singh were taken into possession. They were duly sealed and thereafter the sealed parcels were deposited with MHC.

Satnam Singh and Gurvail Singh were subsequently arrested on 25.8.2000 whereas appellant Amarjit Kaur was arrested on 26.8.2000.

During his investigation Gurvail Singh disclosed on 27.8.2000 that he had kept concealed one toka and one shirt stained with blood at concealed place near the bank of canal. His disclosure statement Ex. PO was recorded which was thumb marked by him and attested by two police officials.

Similarly Satnam Singh had also suffered his disclosure statement Ex. PK in which he had disclosed the police the place where he had kept concealed kirpan and his blood stained shirt. His statement was also signed by him and the said two police officials. Pursuant to the said disclosure statement toka Ex. P31 and blood stained shirt Ex. P32 was got recovered by Gurvail Singh. The same were also taken into possession vide Ex. PO/1. Other formalities were also completed at the spot.

Satnam Singh appellant also got recovered kirpan Ex. P33 and blood stained shirt Ex. P34 and the same were taken into possession vide recovery memo Ex. PQ/1.

During the investigation SI Mandip Singh recorded statement of Gurnam Singh Clerk of SDM Office, Tarn Taran about the driving licence issued in the name of Jaj Singh. He also got prepared scaled site plan Ex. PB from Rishi Ram Draftsman. Photographs of the scene of occurrence clicked by ASI Kapal Dev were also taken into possession.

The developed photographs are Ex. P35 to Ex. P42 and their negatives are Ex. P43 to Ex. P50.

Till the completion of the investigation, Jaj Singh appellant could not be arrested and as such he was declared as a proclaimed offender.

All the appellants except Jaj Singh were charge sheeted under section 302 IPC substantively and with the aid of section 34 IPC.

It would be worth mentioning here that Jaj Singh appellant was arrested on 5.9.2001 after the trial was in progress and statement of certain prosecution witnesses including Sharam Singh, the first informant was already recorded. After his arrest supplementary challan was presented against him and was tagged with the main case. Thereafter all the four appellants were charged as under:-

"Jaj Singh accused was charge sheeted substantively for the murder of Kulwant Singh U/s 302 IPC and other accused were charged u/s 302/34 IPC; Satnam Singh accused was charged substantively for the murder of Sarabjit Kaur u/s 302 IPC and other accused were charged sheeted u/s 302 r/w section 34 IPC; Gurvail Singh was charge sheeted subsequently u/s 302 IPC for the commission of the murder of Gurvinder Singh and again u/s 302 IPC subsequently for the murder of Davinder Singh whereas other accused were charge sheeted u/s 302/34 IPC. " Before framing of fresh charge, as indicated above the prosecution had examined Sharam Singh PW1, Dr. Gurmanjit Rai PW2, HC Sarwan Singh PW3, C. Jagir Singh PW4, C. Virsa Singh PW5 and ASI Kapal Dev PW6 and after that the prosecution has examined Sharam Singh PW1, Rishi Ram Draftsman PW2, Dr. Gurmanjit Rai PW3, C. Jagir Singh PW4, C. Virsa Singh PW5, HC Sarwan Singh PW6, SI Mandip Singh PW7, ASI Kapal Dev PW8, Dr. Amarjit Singh PW9, Gurnam Singh Clerk PW10, ASI Harjit Singh PW10.

Besides examining the aforesaid witnesses, the prosecution has tendered report of Forensic Science Laboratory Ex. PO.

Dilbagh Singh PW and Sahib Singh PW were given up as having been won over.

Sharam Singh the complainant (FIR lodger) has given the detailed version as referred to in his initial statement which is the basis of FIR.

Rishi Ram Draftsman had visited the place of occurrence and had prepared the scaled site plan Ex. PB on the pointing out of Sharam Singh.

Dr. Gurmanjit Rai had conducted the autopsy on the dead body of Kulwant Singh on 21.8.2000 at 8.00 AM and found the following injuries:-

1. Incised chopped wound horizontally placed on face and mouth, 16 x 6 cms in size.

On dissection: Underlying muscle, mendible, maxilla teeth and tongue were found cut. Clotted blood was present.

2. Incised chopped wound 18 x 7 cms obliquely placed, on front and both sides of neck.

On dissection: Soft tissues, muscles, vessels, trachea, oesophagus, larynx were found cut. Clotted blood was present.

3. 13 x 5 cms. Incised chopped wound horizontally placed on top of left shoulder.

On dissection: Underlying clavicle, scapula and humerous bones were found cut fractured. Muscles were found cut.

4. Incised chopped wound 12 x 5 cms on front of left side of chest, 4 cms below injury No.3. It was horizontally placed and muscle deep. Clotted blood was present.

5. Incised chopped wound 21 x 6 cms on back of left forearm and left hand. Vertically placed upto knuckle of index finger.

On dissection: Underlying bones of hand, wrist and index finger were found cut fractured. Clotted blood was present.

6. Incised chopped wound 11 x 4 cms on front of right shoulder obliquely placed. Muscles were found cut and clevical was found cut fractured. Clotted blood was present.

7. 5 x 1.5 cm incised wound on top of right shoulder, horizontally placed. It was muscle deep and clotted blood was present.

According to his opinion, all the injuries were ante mortem in nature and the cause of death of Kulwant Singh was severance of neck structure (trachea, larynx, carotid vessels, vital organs) According to him injury no. 2 was sufficient for causing death in the ordinary course of nature. He has proved post mortem report Ex. PF.

The aforesaid witness has also conducted the post mortem on the dead body of Sarabjit Kaur on the same day at 4.55 PM and found the following injuries on her person:-

1. 17 x 6 cms incised wound obliquely placed in front of left side of chest and upper arm in its upper one third, clevical and head of left humerus bone was found cut.

Muscles were found cut. Clotted blood was present.

2. 20 x 7 cms obliquely placed incised chopped wound was present on left side of neck extending from back to chin.

On dissection: underlying muscles, vessels, vertebrae spinal cord, trachea and carotid vessels were found cut.

Clotted blood was present.

3. Incised wound 14 x 2 cms with 5 cms long tail on medial end of wound, on left side of neck just below injury No.2. It was muscle deep. Clotted blood was present.

4. Incised wound 2 x 0.5 cm on mid clevicular point of left side of chest. It was skin deep.

5. Linear reddish brown abrasion 8 cms in size present on middle of chest, obliquely placed.

6. Incised chopped wound 7 x 4.5 cms on front of right wrist, obliquely placed.

On dissection: Underlying tendons, muscles, bones and vessels were found cut. The hand was hanging by a flap of skin only.

7. Incised chopped wound 14 x 5 cms on face and mouth. Mandible, maxilla, tongue and soft tissues were found cut. It was obliquely placed and clotted blood was present.

8. 13 x 6 cms incised wound was present on left side of fore-head and temporal region of head, scalp was found sliced off. Ear pinna was found cut and the wound was scalp deep.

9. Incised wound 9 x 5 cms on back of left side of head, 3 cms behind lobule of ear. It was scalp deep. Clotted blood was present.

In this case also the cause of death was severance of neck structure and injuries no. 2 and 3 were found to be sufficient to cause death in the ordinary course of nature. He proved the post mortem report of deceased Sarabjit Kaur Ex. PG/1.

We at this stage would like to reproduce the injuries on the person of Davinder Singh and Gurvinder Singh as noticed by Dr. Amarjit Singh who had conducted the autopsy on their dead bodies. This witness noticed the following injuries on the person of Davinder Singh :-

1. 15 x 5 cms incised chopped wound was present on right side of face and head extending from right ala of nose to hair line behind ear pinna. Ear Pinna in its middle, underline muscles, vessels, maxillary bone, mastoid bone and occipital bone was found cut. Clotted blood was present.

2. 8 x 6 cm incised chopped wound was present on front and right side of neck. Underlying muscles, vessels, trachea, spinal cord and vertebra was found cut. Clotted blood was present.

3. 6 x 5 cms incised wound was present on front of left shoulder, 1 cm below tip of shoulder. Underlying muscles and humerrus bone was found cut. Clotted blood was present.

4. 2 x 1.5 cms incised wound was present on inner aspect of right hand, 3.5 cm. Distal to wrist. Clotted blood was present.

According to the opinion of the doctor, the severance of neck structure was sufficient for causing death in the ordinary course of nature.

He proved the post mortem report Ex. PW2.

On the dead body of Gurvinder Singh, Dr. Amarjit Singh noticed the following injuries:-

1. 19 x 5.5 cms incised chopped wound was found on face 1 cm above upper lip extending from front of left ear pinna to right cheek, Underlying muscles, vessels, maxilla and lower jaw bone was found cut. Clotted blood was present.

2. 7.5 cms. Incised chopped wound was found present on front of neck, underlying muscle, vessels, trachea, spinal cord were found cut. Clotted blood was present.

3. 3.5 x 1.5 cm incised wound was present on back of right hand at knuckle of medial three fingers and muscle deep. Clotted blood was present.

4. 6 x 4.5 cms incised chopped wound was present on medial aspect of right upper arm and posterior axillary fold. Underlying muscles, vessels and humerous was found cut. Clotted blood was present.

5. 5 x 4.5 cms incised wound was present on top of right shoulder and muscle deep. Clotted blood was present.

In the opinion of the doctor, all the injuries were ante mortem in nature and cause of death was because of severance of the neck structure as a result of injury no. 2 which was sufficient to cause death in the ordinary course of nature. He proved the post mortem report of Gurvinder Singh Ex.

PN/2.

HC Sarwan Singh is formal witness who has proved Ex. PH.

Constable Jagir Singh has also tendered his affidavit Ex. PJ.

This police official was handed over the special report for the purpose of delivering it to the Ilaqa Magistrate. He states that the police report was handed over to him at 10.30 AM. He also gives the distance between Raja Sansi and Ajnala as 14 kms.

Constable Virsa Singh is a witness of formal character who has tendered his affidavit. ASI Kapal Dev Photographer PW6 has proved the photographs clicked at the place of occurrence and their negatives. He states that he had reached the place of occurrence at 9.30 AM.

SI Mandip Singh is the Investigating Officer of this case. The entire investigation conducted by him is already depicted in the preceding paras.

Gurnam Singh Clerk from the concerned office has proved the entry No. 23112 dated 23.12.1998 with regard to driving licence issued to Jaj Singh appellant herein.

ASI Harjit Singh has partly investigated this case and arrested Jaj Singh on 5.9.2001 and during his interrogation he suffered a disclosure statement Ex. PW10/A and pursuant to that he got recovered a datar PW10/1 and the same was taken into possession vide recovery memo Ex PW10/B.

The plea taken by the appellants is of denial. Gurvail Singh appellant has pleaded that he is from different village and has nothing to do with the occurrence. He was working as a labourer at the time of alleged occurrence in a Mill of Khandwala.

Satnam Singh appellant has taken a plea that at the time of occurrence, he was working in Sohal Factory at Khanna from where he was brought by the police and detained in the Police Station for 4/5 days. He has given his date of birth as 5.3.83.

Jaj Singh appellant has come up with a plea that he had joined Nihang Jatha of Patti area and cut off links with his other family members and on the day of the occurrence, he was in a Gurdwara at village Lauka and is falsely implicated by his grand father.

Amarjit Kaur appellant has also taken the plea of false implication in this case. She, however, gives the age of Satnam Singh to project him as minor on the date of occurrence.

In defence the appellants have relied upon testimonies of Darshan Kaur, Headmistress (DW1) who had proved the certificate with regard to age of Satnam Singh.

Sandeep Nanda (DW2), Computer Clerk of CMO Office, Amritsar is a witness who brought record with regard to birth certificate of Satnam Singh.

Puran Dutta of Hindustan Vegetable Oil Corporation, Chhehartta (DW3) has been produced to show that Gurvail Singh appellant was working there and he had worked till 20.8.2000. He, however, has clarified in his examination-in-chief that Gurvail Singh did not attend his duty on 21.8.2000.

Dev Raj (DW4) an Operator in Hindustan Vegetable Oil Corporation, Chhehartta has stated that Gurvail Singh used to work in that Mill but the same was closed by the Management in 2000 as there was dispute with the management. He states that they were going to Police Station, Chhehratta for demonstration and when they were at the distance of one furlong, Gurvail Singh was arrested by the police.

Dilbagh Singh son of Bachan Singh resident of village Bhittewad (DW5) who was given up by the prosecution, when stepped into witness box stated that Jaj Singh had become Nihang and he had left his house and was not seen at the house on the date of occurrence. He then states that there is a window in the back wall of the baithak (drawing room) and no grill was fitted there and one could come out of the baithak by opening that window. He also states that he did not make any statement before the police and did not open the window to enable Sharam Singh to come out of the baithak.

DW6 Amarjit is again from Hindustan Vegetable Oil Corporation Ltd. Chheharatta and he has identified his signatures on mark 'B' to show that Gurvail Singh was employed there.

After appreciating the entire evidence, the learned trial court has convicted and sentenced all the appellants as stated herein above.

Hence this appeal.

We have heard Ms. Baljeet Kaur Mann, learned counsel for all the appellants, Mr. M.S.Sidhu, learned Senior Deputy Advocate General, Punjab assisted by Mr. A.P.S.Randhawa, learned counsel for the complainant. With their assistance, we have gone through the entire paper book and the trial court record very minutely.

Ms. Mann states that the case of prosecution is hinging on the evidence of Sharam Singh (PW1) only and his presence at the time of alleged incident is highly doubtful. He, in fact, has been projected as an eye witness subsequently in order to convert the blind murder into an eye version account. In order to strike home her view point, she developes her case further submitting that in this occurrence, four persons have received as many as 26 injuries and the prosecution case as set up is that only five persons were present in the house when the appellants had attacked them.

In this eventuality, the appellants would not have even spared Sharam Singh at all so as to give him a chance to become an eye witness to the occurrence especially when he only was the prime target. Learned counsel contends that the explanation given by Sharam Singh is that he had saved himself from the assault by closing the door of the drawing room (baithak) where he was allegedly sleeping but this explanation on the face of it does not appear to be plausible as the appellants who were allegedly armed with very heavy weapons like Datar could easily cut or break open the door.

They had ample time at their disposal. From this, the learned counsel wants to develop that in fact Sharam Singh was not at all present in the drawing room (baithak) when the occurrence had allegedly taken place.

Ms. Mann while strengthening her arguments, then submits that it was the month of August and the weather being hot, a villager who at least has no facility of cool air would not sleep in a room. Even otherwise, the common practice prevailing in the villages is to sleep in the open. The learned counsel then contends that all the four deceased were sleeping in the court-yard and sleeping of Sharam Singh only in the room creates doubt about his presence at the time of occurrence.

Ms. Mann then submits that the aforesaid weakness of the prosecution case may be appreciated from the angle of delay in lodging the First Information Report as the occurrence is of the intervening night of 20/21.8.2000 at about 1/1.30 AM whereas statement Ex. PA of Sharam Singh was recorded at 8.30 AM by SI Mandip Singh PW7 at bye-pass of canal of village Bagge Kalan. The distance between the two is 2 kilometers.

The special report reached the Magistrate at 11.00 AM. From this the learned counsel wants to urge that the time consumed by Sharam Singh in lodging report to the police creates doubt about his presence. Otherwise, he would not have wasted any time in lodging the report to the police.

According to the learned counsel, it is not possible that the villagers would not have collected at the scene of occurrence after such a gruesome murder of four persons and the plea now taken up by Sharam Singh that he disclosed the incident in the morning hours to Dilbagh Singh,who was attracted to his noise is in fact an afterthought to cover the delay. Learned counsel then submits that it has also come in the statement of Sharam Singh that there is a Gurdwara nearby his house which starts recitation of Gurbani in the morning hours. According to the learned counsel there was every possibility that when he had gone to Gurdwara early in the morning and some one in his absence might have killed Kulwant Singh and his family members and thereafter when he reached the spot, took the time of his choice in lodging the First Information Report after due deliberations.

Therefore, the delay in lodging the First Information Report may be taken seriously against the prosecution especially when the case in hand is hinging entirely upon solitary statement of most interested witness.

Ms. Mann then submits that the case set up by Sharam Singh is that Dilbagh Singh had opened the door of his drawing room (baithak) and after leaving him at the scene of occurrence, went to lodge the report. This witness has been given up by the prosecution as having been won over by the accused. According to the learned counsel, this explanation otherwise does not appear to be plausible for the reason that all the appellants remained in judicial lock up throughout the trial and possibly they could not put any pressure upon Dilbagh Singh for not appearing as witness against them. In fact, Dilbagh Singh never wanted to support the false story of Sharam Singh and therefore, the prosecution agency thought of giving him up as having been won over. He, however, has been produced as one of the defence witnesses and this demolishes the statement of Sharam Singh to a great extent. This weakness, according to the learned counsel, again weakens the case of the prosecution.

The learned counsel then submits that had it already been a case of an eye version account, SI Mandip Singh, the Investigating Officer would not have summoned dog squad. Normally dog squad is called only in a blind murder case and in this case all the accused were known to Sharam Singh and therefore, services of dog squad were not at all required. Even otherwise the dog squad did not lead the police party to any clue and therefore, this also creates doubt about the presence of Sharam Singh at the time of alleged occurrence.

The learned counsel then contends that Sharam Singh has knitted a net wider by implicating Gurvail Singh appellant also who belongs to different caste (Mehra Sikh) and has no animosity against Kulwant Singh (since deceased). He could not possibly have any motive to join hands with the other three appellants. He had no interest in the property as well. At the same time Amarjit Kaur appellant was also not expected to be there with her two sons being a lady. The male persons do not generally join lady members of their family for committing the offence and that too of such a henious nature as the present one According to the learned counsel, if one sees scaled site plan Ex. PB, there is a boundary wall of about 6/7 feet height and Amarjit Kaur could not scale over the said wall. Sharam Singh her father-in-law has implicated her with an oblique motive attributing lalkara to her and exhorting of her co-accused.

Ms. Mann then contends that investigation in this case is not fair. The recoveries allegedly shown from three appellants is a crude padding and is based on the statement of police officials only. It is not corroborated by any independent witness. Even otherwise, the blood stained shirts allegedly recovered at the instance of Gurvail Singh and Satnam Singh are of no help to the prosecution as according to the report of the Serologist, the origin is found to be in-conclusive.

Ms. Mann lastly contends that the defence plea has not been taken into consideration by the trial court in its right perspective which has caused prejudice to the appellants.

On the basis of the aforesaid submissions, Ms. Mann prays for acquittal of the appellants.

In the alternative, adverting to quantum of sentence, Ms.

Mann submits that it is not rarest of rare case in which the death sentence should be imposed upon Gurvail Singh alias Gela and Jaj Singh appellants.

She has relied upon certain judgments in support of her contentions and we shall be entering into detailed discussion in this regard at the relevant stage in the subsequent paras of our judgment.

Qua Satnam Singh appellant also, Ms. Mann submits that the view taken by learned Principal Magistrate, Juvenile Justice Board while imposing five years sentence from the date of order i.e. 18.3.2005 is a harsh view and he deserves a sympathetic tilt.

Controverting the submissions advanced by Ms. Mann, Mr.

Sidhu learned State counsel who is assisted by Mr. Randhawa submits that there is no tinge of adulteration in the statement of Sharam Singh as he had no reason to falsely implicate the appellants in this case. He is so un-lucky firstly having lost his two sons prior to the occurrence and then losing one unit of his family at the hands of second unit. For him, his entire family is finished. He has summed up the courage to depose against the appellants despite the fact that he was under threat right from the very beginning.

While taking us through cross-examination of this witness, the learned State counsel submits that except for a few minor discrepancies which are bound to occur and are ignorable, the defence has not been able to demolish his evidence on the basic substratum of the prosecution case.

The learned counsel then contends that may be there is some delay in lodging the initial report with the police but it is very well explained by Sharam Singh as he was not only under the shock but also under the constant fear of being eliminated by the appellants' side who had also threatened him that in case he tried to raise the alarm or tell about this incident, they would finish him. It has also come in his substantive statement that they (accused) had bolted the door from outside and he had no way to come out of the baithak. From this, the learned State counsel develops that if at all there is any delay, it is explained by the witness and does not help the appellants at all.

Mr. Sidhu then submits that Gurvail Singh was also friendly with the other three appellants. May be that he had no personal interest in getting land transferred to the share of Amarjit Kaur and her sons but he could be at their help to any extent. Sharam Singh had no reason to falsely implicate him.

The learned State counsel in order to strengthen his case, further contends that Jaj Singh appellant had absconded after the registration of the case and was arrested only on 5.9.2001. His abscondence is also a circumstance to be taken against him.

On the basis of the aforesaid submissions, the learned State counsel submits that the prosecution has been able to prove its case beyond any shadow of reasonable doubt and therefore, conviction of all the appellants as already recorded by the trial court deserves to be upheld.

With regard to quantum of sentence, the learned State counsel submits that it is a case of gruesome murder of four persons and the appellants have wiped off the entire family of Kulwant Singh which includes his wife and his two minor children. In this case four persons have been virtually butchered by the appellants and therefore, the learned trial court has rightly awarded the death sentence to two appellants whereas the remaining two appellants, namely, Satnam Singh and Amarjit Kaur have already got a concession being juvenile and a lady. Therefore, the sentences as imposed by the trial court upon all the four appellants deserve to be confirmed.

Mr. Randhawa adopts the arguments advanced by Mr. Sidhu on both the counts.

After giving our anxious thought to the rival contentions of either side and going through the entire record very minutely, we are of the considered view that the prosecution has been able to prove its case to the hilt against all the appellants for the charges framed against them. We shall now be dealing with all the aspects of the case in the light of the arguments advanced by Ms. Mann, learned counsel for the appellants.

There is no hard and fast rule that conviction cannot be based on a statement of solitary witness. Simply that prosecution case is resting upon a single eye witness, it does not mean that his evidence stands castigated. Some times corroboration from other source is required for the purpose of re-assurance. However, it depends upon the facts of each case.

What is to be appreciated by us in the case in hand is that could there be any other witness at that particular time when the occurrence had taken place. The reply would be in the negative. The case of the prosecution is that Sharam Singh was staying with the family of Kulwant Singh whereas family of Amarjit Kaur was staying separately. In all there were five family members including Sharam Singh. Four have been eliminated but he incidently survived. We would not term him as a lucky person for the reason that he saw butchering of entire family of his one son by the family members of his other son (Jaswant Singh). He continued seeing the ghastly act of killing being helpless and hapless person and literally pleaded for the mercy from his daughter-in-law and grand sons but to no effect. No doubt, the family of Amarjit Kaur was joining issue with Sharam Singh for the last many days for the transfer of the share of land in their names and has also raised protest 8/9 days prior to the occurrence in which he was threatened of dire consequences along with Kulwant Singh since deceased but what appears to us is that Amarjit Kaur and her two sons might have not thought of killing him for the reason that if he was murdered, the family of Jaswant Singh could not inherit the property of Sharam Singh under the Hindu Succession Act. This way, they were clever enough not to finish him and simply threatened that in case he disclosed that fact to any one, he would have to face dire consequences.

The immediate reaction to the situation by the appellant side was to lock him in the room so that they could run away unseen from the scene of occurrence. Even otherwise it depends upon the psyche of the criminal to react to a particular situation and the easy task for them was to finish Kulwant Singh and his family members who were sleeping in the open.

Criminals are always in a hurry so that they are not caught at the spot.

Another fact which is worth appreciating is that Amarjit Kaur and her two sons were in fact not happy with Kulwant Singh who was not allowing his father to transfer the land in their name and therefore, they might have though that after Kulwant Singh and his family is eliminated, Sharam Singh would succumb to their pressure comfortably and that might be the reason that they did not attack the old man. Therefore, the argument advanced by Ms. Mann to the effect that the appellant side would not have spared Sharam Singh who was their main target and, therefore, his presence at the time of alleged occurrence is doubtful, falls on the ground.

Since we are testing the case of the prosecution on the statement of a solitary witness, an exercise has been done by us that before conviction is maintained, his evidence should pass through the test of fine toothed comb. We are, therefore, scrutinising his evidence very carefully considering certain infirmities as pointed by Ms. Mann.

Much has been said on delay in lodging the First Information Report with the police. The time of occurrence is 1.30 AM on 20/21.8.2000. Statement of Sharam Singh Ex. PA was recorded by SI Mandip Singh on the next date at 8.30 AM at the Bus Stand of village Bagge Kalan. It was after seven hours. The argument advanced is that it is recorded with due deliberations and consultations. It is clear from the record that after the recording of formal FIR Ex. PA/3 at 9.30 AM, the special report was handed over to Constable Jagir Singh PW4 at 10.00 AM.

It was received by SDJM, Ajnala at 11.00 AM on 21.8.2000. The distance between Ajnala and Police Station is 14 kilometers as has come on record.

Therefore certainly there is no delay from the side of the investigating agency to take action after recording of the statement of Sharam Singh at 8.30 AM. So we are left with only one aspect as to whether the delay of seven hours is explained by the prosecution or not. In our view, the same is very well explained by Sharam Singh in his initial statement Ex. PA wherein it is stated as under:-

" xxx xxx xxx xxxx I continued raising the alaram of "Na Maro, Na Maro" (don't kill, don't kill) through the window.

Thereupon my daughter-in-law Amarjit Kaur gave a threat to me that after dealing with them, they would advance towards me. Then having killed my son, daughter-in-law and grand sons, they came towards me, but as my door was closed from inside, they threatened that in case of my raising alarm or informing some body else, they would also finish me and that in the meanwhile, they were standing outside. They bolted the door from outside. I had to remain silent out of fear.

However, on the day dawn in the next morning, I raised the alarm of "Bachao-Bachao" (save-save) loudly, whereupon Dilbagh Singh s/o Bachan Singh Jat, resident of Bhittewad came and opened my door. Xxx xxx xxx xxx " We can very well visualise the plight of an old man whose four family members were butchered in his presence. He became stunned and non plussed. We can also understand that he must have taken some time to compose himself after coming out of the room on the arrival of Dilbagh Singh and thereafter also some reasonable time must have been consumed for approaching the police. It is absolutely a natural reaction.

He stated that after leaving Dilbagh Singh at the place of occurrence, he went to lodge the report with the police and on the way SI Mandip Singh met him on the canal bridge. That distance between Police Station and his house is about 2 kilometers. There is no evidence before us as to whether he had used any conveyance as he does not depose in his examination-in- chief and even no question in this regard was put to him in his cross- examination. Therefore, if he had gone on foot to lodge the report, he must have consumed a reasonable time to reach there. He was an old man of the age of 75 years at the time of occurrence and above all turned a ship wrecked person on account of this barbaric happening. So taking into account all the aforesaid facts the delay of seven hours, in our considered view, has been adequately explained by this witness and the appellants cannot derive any advantage from it.

We are now appreciating evidence of Sharam Singh from the angle of other flaws as projected by learned counsel for the appellants. It has been argued that in the month of August, villagers generally do not sleep inside and therefore, presence of Sharam Singh in the room is doubtful. We are not convinced with this argument as well. Sharam Singh being an elderly person was not supposed to sleep with his other family members in an open area of the court-yard especially where his daughter- in-law was also sleeping. An elderly person would always keep away from such type of situation. Therefore, in the present scenario, when Kulwant Singh, his wife and his two children were sleeping outside in an open area he was left with no option except to stay within the room.

Therefore, his presence in the drawing room (baithak) at the time of occurrence was not unusual.

Since Sharam Singh has not been assaulted by the appellants, the argument developed is that he might have gone to nearby Gurdwara which starts its daily religious activities at 4.00 AM in the morning and there is every possibility that in his absence Kulwant Singh and his family members were assaulted. We are not convinced with this contention. In his cross-examination Sharam Singh has categorically stated that Gurdwara opens at 4.00 AM daily but on the date of occurrence he had not visited Gurdwara. From this we can comfortably conclude that on the date of occurrence, Sharam Singh was present in his drawing room (baithak).

While marshalling the facts, we have re-scanned the prosecution evidence from another after angle seeing the scaled site plan and rough site plan with regard to the fact as to whether his cries (alarm) could possibly be heard by any other person residing nearby. Both the site plans depicted house of Jaswant Singh (accused party) on the Northern side of the place of occurrence. In front of house of Jaswant Singh, on the Eastern side, there is a vacant plot across the street. On the same side another un-habitated plot is shown near the house of the deceased. On the Western side, haveli of Jaswant Singh is depicted. On the Southern side, house of Dharam Singh son of Sharam is shown. From this topography, we can comfortably conclude that there was no possibility of residents of the village to hear the voice of Sharam Singh, even if we presume that the villagers go to answer the call of nature in the morning or certain villagers go to Gurdwara at about 4.00 AM. From all these facts we safely conclude that Sharam Singh was taken out of his room by Dilbagh Singh in the morning only. No doubt ultimately Dilbagh Singh who happens to be in relation of Sharam Singh has been given up by the prosecution as having been won over and then produced as one of the defence witnesses, still we do not doubt his presence at the scene of occurrence in the early hours of 21.8.2000. He otherwise is not an eye witness to the occurrence. We, therefore, do not attach much importance to his statement irrespective of the fact that he has stepped into witness box as defence witness and stated that he did not open the window to come out of the drawing room (baithak).

This is a very trivial infirmity which would not touch the core of the case especially when we are not finding any vital flaw in the statement of Sharam Singh. Hyper-technical approach in appreciating the evidence is to be avoided.

Much has been said by the learned counsel for the appellant with regard to requisitioning of dog squad at the scene of crime stating that dog squad is generally called only in a case of blind murder. We do not agree with this contention as well. Some times, the dog squad is called for the purpose of tracing out the accused immediately after the occurrence.

There were four deaths in this case and SI Mandip Singh after recording the statement of Sharam Singh Ex. PA immediately sent for the dog squad and the photographer. Two officials were also sent to trace out the accused but no clue was found. The dog squad is called for smelling certain articles also left near the scene of crime so that the accused is apprehended at the earliest with the help of any possible clue. It cannot be said that dog squad is called only when there is a blind murder. We, therefore, repel the argument advanced by Ms. Mann in this regard.

No doubt the recoveries allegedly effected in this case are not proved by bringing forward any independent witness but that would not show that there is a crude padding by the Investigating Officer. The articles allegedly recovered were found to be blood stained. May be blood of the same group is not ascertained by the Serologist indicating that the material as in-conclusive but it does not mean that some crude padding was done by the investigating officer and it was of some other origin. By doing so we will be discarding the investigation on the basis of imaginative doubts.

Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. We do not discard the case of the prosecution thereby.

The other contention of Ms. Mann is with regard to the driving licence of Jaj Singh allegedly recovered from the place of occurrence and taken into possession by the Investigating Officer but the same was not produced before the trial court. Her attack on the prosecution is that once the said licence is not produced, it can be presumed that the same was not taken into possession and this all was done to implicate Jaj Singh falsely who otherwise had left his house much prior to the occurrence and had become a Nihang Sikh. No doubt the licence allegedly taken into possession by SI Mandip Singh was not produced before the court as it was not traceable but the fact remains that the recovery memo which is duly proved and exhibited talks of taking into possession the said licence. It bears No. 23112 and stands in the name of Jaj Singh only as is proved from the statement of Gurnam Singh PW who had brought the complete record and stated on oath that licence No. 23112 is entered in the name of Jaj Singh son of Jaswant Singh. A specific question was put to Sharam Singh with regard to staying of Jaj Singh in a Gurdwara as a Nihang Sikh but he denied the said suggestion. The defence evidence is also very weak on this aspect. We, on the basis of the aforesaid facts can safely conclude that there is no slip-shod investigation conducted in this case which would affect the prosecution case. Even if some laxity is here or there, but that would not shatter the basic substratum of the prosecution story which is un-folded by Sharam Singh, the solitary witness.

We have also examined the case of Gurvail Singh appellant in its right perspective. As stated above, statement of Sharam Singh PW was recorded twice; once before Jaj Singh was apprehended and secondly after his arrest. In his first statement which was recorded on 30.4.2001, he has stated that Gurvail Singh has been working (as Siri) with the accused for the last 15/20 years. He was, however, confronted with his statement Ex.

PA made to the police. He was also confronted with his previous statement with regard to a threat (taunt). Some discrepancy has also come with regard to giving of blows to Davinder Singh and Gurvinder Singh by Gurvail Singh appellant. It is contended by Ms. Mann that Gurvail Singh belongs to village other than the village of his co-accused. No doubt the village of Gurvail Singh is known as Wadde Bhittewad whereas other appellants are residents of Chhotte Bhittewad. They, in fact, are the part of the same village. Gurvail Singh has also made an attempt to prove his alibi by producing some defence evidence but we cannot eschew observing that the same is hanging on a very tenuous thread and, therefore, is of no help to him as one of the defence witnesses has rather gone to the extent of saying that he was absent from the mill on the date of occurrence. The old association of Gurvail Singh with the family of Amarjit Kaur is suggestive of the fact that he had joined hands in the commission of alleged offence.

It has come in the substantive statement of Sharam Singh that 8/9 days prior to the occurrence Jaj Singh, Satnam Singh and Gurvail Singh had threatened him saying that in case he did not get his share transferred in their name in the revenue record, they would kill him and his son Kulwant Singh. We do find certain discrepancies in the statement of Sharam Singh with regard to manner of assault etc. but the same are not that material which would advance the case of Gurvail Singh appellant. After all just a rustic was cross-examined by a seasoned lawyer. Even honest and truthful witnesses can differ in some details. The assault was over within a few minutes and it was difficult for Sharam Singh to describe exactly as to which accused had inflicted how many blows. In his substantive statement, he has made an attempt to give the true account of the occurrence by ascribing different role to all the appellants. An over all view of the occurrence is to be taken in account. Therefore, certain minor discrepancies or trivial matters not knocking at the bottom of the case have to be ignored.

In order to defend Amarjit Kaur, the learned counsel contends that she could not scale over the wall of 6/7 feet for the purpose of entering into court-yard of house of Kulwant Singh, is again of no affect in the light of the two scale plans where a gate is shown on the Northern side of the place of occurrence near the house of Jaswant Singh. There was no difficulty for Amarjit Kaur to enter the house of Kulwant Singh from the said gate. As per the case of the prosecution, she has been projected as the main instigator and even on the date of occurrence, she has played the same role. We can appreciate this aspect from another angle. There was no dearth of injuries in the present case as all the deceased have received as many as 26 injuries. Sharam Singh her father-in-law could comfortably involve her by showing her very active participation, may be by attributing any injury to her but the same is not done in the instant case. This indicates that a true picture of the genesis of occurrence is being projected before us by him and therefore, Amarjit Kaur has no escape.

The other defence evidence led by the appellants is again of no help to them and we do not attach importance to it.

No other point has been left by us un-touched.

As a sequel to the aforesaid discussion, which is based on re- scanning of the entire evidence on record, we come to a categoric finding that statement of Sharam Singh, the solitary eye witness to the occurrence rings true and the prosecution has been successful in proving its case beyond any shadow of reasonable doubt against all the four appellants for the charges framed against them. Their conviction as recorded by the trial court on different counts is, therefore, upheld.

Quantum of sentence

Let us now advert to quantum of sentence awarded by the learned trial Court to all the four appellants. As stated above, Jaj has been sentenced to death and to pay a fine of Rs.2000/- for causing the murder of Kulwant Singh. He has further been sentenced to death under Section 302/34 IPC with the same sentence of fine for causing murder of Sarabjit Kaur., Gurvinder Singh and Davinder Singh. Gurvail Singh alias Gela has also been sentenced to death slapping with the same amount of fine under section 302 IPC for causing the murder of Gurvinder Singh and Davinder Singh whereas under Section 302/34 IPC with the same amount of fine for causing the murder of Kulwant Singh and Sarabjit Kaur. In default of payment of fine all the appellants were to further undergo R.I for two months. In our view the death sentence awarded for four times to Jaj Singh and Gurvail Singh alias Gela, cannot be maintained on a very simple rationale that one can not be hanged for the second time. Therefore, the order of the learned trial Court with regard to awarding of death sentence to both in the above said terms at least, deserves to be disturbed and the facts, if so warrant, they can be sentenced to death only once.

Another fact which is worth mentioning here is that State has not preferred any appeal for enhancement of the sentence awarded to Amarjit Kaur and Satnam Singh. Therefore, in the present set of circumstances, we are primarily focussing our attention on the issue as to whether the death sentence awarded to Jaj Singh and Gurvail Singh alias Gela is to be confirmed or not and on the adequacy of sentence awarded to Satnam Singh appellant.

While dealing with confirmation of sentence, the High Court is expected to act very cautiously and solicitude. The High Court is under an obligation to come to its own independent conclusion with regard to the sentence irrespective of the view already taken by the trial Court. We are deciding the case of Jaj Singh and Gurvail Singh alias Gela appellants on the aforesaid rationale.

Ms. Mann has submitted that the learned trial Court has not given cogent reasons muchless special reasons within the meaning of Section 354(3) of the Code for imposing death sentence and, therefore, the impugned order could not survive.

We at the very outset felt the necessity of reproducing the observation of the learned trial Court on the sole basis of which extreme penalty (death sentence) has been awarded. The same reads as under:- "No doubt Amarjit Kaur played prominent role by accompanying her co-accused exhorted by her, they committed murders yet keeping in view, the law laid down by Hon'ble Apex Court, case of imposing extreme penalty of death on her is not made out. Case against Gurvail Singh and Jaj Singh is found somewhat different. Attack was opened by Jaj Singh by giving datar blows to Kulwant Singh and his neck structure was severed by him. He also gave five more blows with datar on his face, mouth, top of left shoulder, front of left side of chest, left forearm and left hand and on front of right shoulder and one incised wound on right shoulder. Gurvinder Singh and Davinder Singh were done to death by Gurvail Singh @ Gela who too severed their neck structures by giving them Toka blows, besides, causing incised chopped wounds on right side of face, and head, on left shoulder and incised wound on front of left shoulder and femurous aspect of right hand of Davinder Singh, and incised wound on medial aspect of right upper arm, incised chopped wound on the face, incised wound on back of right hand of Gurvinder Singh. Murder of Sarabjit Kaur was committed by Satnam Singh, Juvenile offender. Circumstances of the case shows that Jaj Singh, Gurvail Singh and Satnam Singh had simultaneously attacked the deceased with their respective weapons and even they were not allowed to move from their beds. Dead-bodies of Davinder Singh and Gurvinder Singh were found lying on single cot. Dead body of Sarabjit Kaur was found lying on another cot. Cursory look on the photos leave no room for doubt that the accused went to the place of the occurrence carefully without making noise or disturbance in any way with the intention that the deceased may not be in a position to wake up. A look at the photos shows that with how much cruelty the deceased were murdered.

Gurvinder Singh and Davinder Singh were hardly of the age in between 11 to 14 years. What sin they had committed? Grievance of the accused, if any, could be with their father or grand father as is the case of the prosecution. Both these convicts have no compassion to commit these murders. It is not disputed that Kulwant Singh had only two sons, Davinder Singh and Gurvinder Singh and no other issue. Thus, whole of the family of Kulwant Singh was wiped out. It is also proved that with deliberation and determination, murders were committed by the accused. As such, so far as the case of Jaj Singh and Gurvail Singh is concerned, the same is bound to fall in the category of "rarest to rare" cases and no mitigating circumstances, whatsoever, has come on the record in their favour."

We do not find this approach to be faulty. Any how, we are once again delving into the issue for forming our own independent view.

In Bachan Singh Vs. State of Punjab (1980) 2 Supreme Court Cases 684 (Constitutional Bench Judgment), their Lordships have laid down circumstances which can be considered as aggravating circumstances. The same are are as under:- "(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-

(i) which such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or assistance under Section 37 and Section 129 of the said Code."

Similarly, the following circumstances are also considered as mitigating circumstances:-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." Ms. Mann has made an attempt to put forth the following mitigating circumstances in favour of the aforesaid two appellants:-

1. Crime may be gruesome but the criminals cannot be said to be hardened murderers.

2. Both the appellants are first time offenders. They have no bad past. They are not criminals to the core.

3. Motive is justified being a family fight.

4. Human mind going astray.

5. Anti social element is not there.

6. The appellants are not menace to society. In other words, they are not threat to society at large.

7.Are they beyond reformation.

8. Gurvail is a married person upon whom the entire family is dependent, consisting of minor children. His wife has also pleaded for mercy in her separate statement recorded after conviction.

Ms. Mann while strengthening her arguments has relied upon a judgment of Supreme Court rendered in Rajendera Prasad v. the State of U.P., AIR 1979 Supreme Court 916 in which their Lordships have observed that 'Special reasons' necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. In the aforesaid case the death sentence was commuted to sentence for imprisonment for life.

Ms. Mann then relies upon another judgment of Hon'ble Apex Court rendered in Om Parkash vs. State of Haryana 1999 Crl. Law Journal 2044 in which the death sentence imposed upon appellant was commuted to sentence of imprisonment for life despite the fact that seven persons of a family were murdered by three accused which included a woman aged 77 years and two teenager and adolescents. In the aforesaid case the accused side wanted to wreck vengeance over the dispute of a plot which was amicably settled with the intervention but was not liked by the accused side. In the said case the Hon'ble Apex Court had also considered Bachan Singh's case (supra) and other three judgments of the Apex Court i.e. Shankar v. State of Tamil Nadu, (1994) 4 SCC 478, State of M.P. v. Shyamsunder Trivedi and others (1995) 4 SCC 262 and Suraj Bhan v. State of Rajasthan, 1996 S.C.C. (Criminal) 1314.

Ms. Mann further relies upon Siri Bhagwan vs. State of Rajasthan 2001 (2) R.C.R. (Criminal) 695 in which there was murder of five persons by the accused aged 20 years with the object to commit robbery and the Apex Court although considering the case barbarous commuted the death sentence to imprisonment for life.

Relying on another judgment of Apex Court rendered in Bachhitar Singh & Anr. vs. State of Punjab 2002 (4) R.C.R. (Criminal) 629 Ms. Mann vehemently submits that in the said case the accused with the aid of two other accused had killed his two brothers and their families to grab land. Total deaths in the said case were six. The death sentence awarded by this Court was commuted to life imprisonment observing that the incident was brutal and heinous but not as a rarest of rare cases. It was further observed in the aforesaid case that there was no evidence that the accused were menace to the society and likely to be continuous threat to the Society. Their Lordships while referring to the other two cases of Supreme Court rendered in Prakash Dhawal Khairnar (Patil) v. State of Maharasthra, 2002 (1) RCR (Criminal) 212 (SC) and Ram Anup Singh & Ors. v. State of Bihar, JT 2002 (5) 621 considered the said case to be one of extending a chance to the accused of rehabilitation.

On the basis of the aforesaid submissions, Ms. Mann prays for a compassionate view with regard to the sentence.

Mr. Sidhu, learned State counsel and Mr. Randhawa learned counsel for the complainant on the other hand have repudiated the contentions of Ms. Mann and contended that ghastly murders have been committed by the present two appellants and they along with their third accused Satnam Singh have in fact wiped off the entire family in the presence of an old helpless man who had already lost his two sons. They, therefore, do not deserve the least sympathy of this Court and their case calls for extreme penalty as already imposed.

After giving our thoughtful consideration to all the aspects, in our considered view, both the appellants deserve the extreme penalty ( death sentence) as already imposed. Our reasoning for arriving at the said conclusion goes as under:

In a very recent judgment of the Apex Court rendered in Saibanna vs. State of Karnataka, 2005 (3) RCC 7, while following Bachan Singh's case (supra) and another case rendered by three Judges Bench in Machhi Singh and others vs. State of Punjab, 1983 (3) SCC 470 their Lordships observed as under:-

Para 10:- "A reading of Bachan Singh (supra) and Machhi Singh (supra) indicates that it would be possible to take the view that the community may entertain such sentiment in the following illustrative circumstances:

1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indication 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-a-vis whom the murdered 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 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-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

In the aforesaid case while confirming the death sentence the Apex Court referred to its another judgment rendered in Sevaka Perumal vs. State of Tamil Nadu, 1991 (3) SCC 471 in which it was observed as under:-

"Undue sympathy to impose inadequate sentence would do more harm to the justice delivery system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance.

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." We, therefore, for the purpose of arriving at a just conclusion have drawn the following aggravating circumstances from the established facts against the present two appellants:- (a) It is a case of gruesome murder of four persons, who were totally helpless as they were fast asleep.

(b) There is no dearth of injuries as the four deceased had received as many as 26 injuries.

(c) It is a case of barbaric murders in which the necks of four persons have been virtually chopped off, as is evident from the medical evidence.

(d) The entire family has been wiped off, which includes lady and two minor children.

(e) There is no immediate provocation from the side of the deceased.

(f) The incident touches the conscience of the court.

The gravamen of law is that as a rule imprisonment for life is to be awarded to the convict(s) of murder and extreme penalty of death is the exception, which is to be awarded in rarest of rare cases. The guidelines to determine as to whether a particular case falls under the said head have been crystalized by the judgment of Constitutional Bench in Bachan Singh's case (supra) and formulated in Machi Singh's case (supra). There is no gainsaying that the facts of every case are distinguishable from that of the other. The judgments cited by Ms. Mann are of individual cases having their own facts but there cannot be any dispute on well settled proposition of law as enumerated in the aforesaid judgments.

In a very recent judgment rendered in Karan Singh and another vs. State of U.P., 2006 (1) R.C.C. 20, the Hon'ble Apex Court refused to commute the death sentence into life imprisonment of two appellants in a case where they had killed as many as five persons over a property dispute observing as under:-

"We are unable to accept the contentions advanced by the appellants' counsel. The appellants killed as many as five persons one by one and the nature of the injuries sustained by the deceased persons show that almost all of them were butchered with axes and other weapons in a very dastardly manner. The appellants after killing three of them even went to the house of the deceased and killed the children who were in no way involved with the property dispute with the appellants.

It seems that the appellants wanted to exterminate the whole family. On reappraisal of the entire facts and circumstances of the case, we are not inclined to commute the death sentences imposed on the appellants Karan Singh and Kanwar Bahadur Singh."

In Surja Ram Vs. State of Rajasthan, 1996(3) RCR (Crl.) 658 there was a land dispute between brothers and the accused killed his brother, his two minor sons, aunt and also attempted to kill his brother's wife and daughter and the intention was to wipe out the entire family and it was held that the offence committed in a cool and calculated manner and is rarest of rare cases and the death sentence was affirmed.

In Davanidhi Bisoi Vs. State of Orissa, 2003 Criminal Law Journal 3697 the case was based on circumstantial evidence and the accused killed the entire family of the deceased, who is related to him including three year's child in the night when they were asleep and there was no provocation from the victims and the purpose was only to gain financial benefit and though the accused was aged only 35 years having aged parents and small daughter, it was held that there is no justification for the imposing of life imprisonment.

In Ranjeet Singh and another Vs. State of Rajasthan, 1988 (2) Recent Criminal Reports(SC) 87, the entire family including children when they were asleep were murdered cold blooded and it was held that the death sentence was appropriately awarded to the accused.

In Mahesh etc. Vs. State of Madhya Pradesh, AIR 1987 Supreme Court 1346 the accused murdered a person, his wife, mother and daughter and his neighbour and the Hon'ble Supreme Court held that it will be a mockery of justice to permit the accused to escape the extreme penalty of law, 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. The common man will lose faith in courts and the death sentence was confirmed.

What we want to emphasize is whether the circumstances make a particular case as rarest of the rare is the matter of judicial assessment to be made on the basis of peculiar facts of each case following the broad guidelines formulated in Bachan Singh's case (supra) and Machi Singh's case ( supra).

Although the learned trial Court has not prepared the requisite balance sheet between the aggravating and mitigating circumstances, which is the requirement of law and has formed its opinion taking all the circumstances collectively, yet we after striking the balance between the two are of the considered view both the appellants deserve death sentence.

It is necessary towards the end to state that when people run amuck, they let their minds play havoc and lose all sense of proportion.

Mind is the product of brain and it has millions of mischiefs in it. One cannot just tame it. The present case falls in the said category.

As a sequel to the aforesaid discussion and taking all the facts and circumstances into consideration, we are of the view that there are no extenuating circumstances in favour of Jaj Singh and Gurvail Singh alias Gela appellants for even a grain of mercy as their case squarely falls in the category of rarest of rare cases, where the sentence of death is warranted.

We, therefore, confirm the same.

We have also considered the case of Satnam Singh with regard to the sentence imposed upon him. Vide impugned order dated 18.3.2005 passed by the Principal Magistrate, Juvenile Justice Board, he has been ordered to be sent to Juvenile Borstal Home, Ludhiana for community services for five years starting from the date of order i.e. 18.3.2005. Ms.

Mann states that he remained in custody during trial for more than four years and in case he remains in custody for another five years from the date of the impugned order, he shall be released only on 17-3-2010 and this is very harsh view. Therefore, his sentence deserves to be reduced to a reasonable period.

We do not agree with the submissions of Ms. Mann. Sections 15 and 16 of the Juvenile Justice (Care & Protection of Children) Act, 2000 have been introduced by the Legislature by bringing drastic change in the old Act ( the Act of 1986), according to which no delinquent juvenile could be sentenced to death or any kind of imprisonment or committed to prison in default of payment of fine or in default of furnishing security.

Keeping in view the adverse consequences of the aforesaid provisions of law and taking note of the fact that many juveniles, who were facing trial in heinous crimes, used to go unpunished after suffering conviction, in addition to Section 15 of the 2000 Act, law placed no embargo upon the jurisdiction of the Court to award any kind of sentence except that of death or imprisonment for life or imprisonment in default of payment of fine or in default of furnishing security. Now, therefore, by way of provisions of Section 16 of 2000 Act, the Courts can impose any type of sentence upon juveniles except that excepted by Section 16 of the said Act ( 2000 Act).

Keeping in view the active participation of Satnam Singh appellant in the commission of the offence, especially the fact that he has also been convicted under Section 302 IPC substantively for committing murder of Sarabjit Kaur, his case does not call for any concessional tilt with regard to sentence. We, therefore, maintain the quantum of sentence already imposed upon him by the trial court as well as the manner of its execution.

As stated above, appellant Amarjit Kaur has already been awarded the minimum sentence provided under the Statute and there being no appeal from the State side, we maintain the same.

The net result is that we do not find any fault with the impugned judgment on any count. Consequently Murder Reference No. 10 is confirmed. The sentence of death imposed upon Gurvail Singh alias Gela and Jaj Singh appellants affirmed and the same be now executed in accordance with law. We, however, make it clear that may be technically Gurvail Singh alias Gela and Jaj Singh have been sentenced to death for four times by the learned trial Court, but the said order is already disturbed by us to that extent on the basis of our observations made hereinabove. We at the same time also set-aside sentence of fine and the default clause imposed upon these two appellants by the trial Court on different counts.

Criminal Appeal No. 890-DB of 2005 filed by Gurvail Singh alias Gela and Jaj Singh and Amarjit Kaur appellants and Criminal Appeal No. 667-SB of 2005 filed by Satnam Singh, are hereby dismissed being devoid of any merit.

( Virender Singh )

Judge

( A.N. Jindal )

September 22, 2006 Judge

'dalbir/ask/rana'

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : September 22, 2006

Criminal Appeal No. 890-DB of 2005

Gurvail Singh alias Gela and others Vs. State of Punjab Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : Ms. Baljeet Kaur Mann, Advocate, for the appellants.

Mr. MS Sidhu, Senior Deputy Advocate General, Punjab.

Mr. A.P.S.Randhawa, Advocate, for the complainant.

Virender Singh, J.

For detailed judgment, see Murder Reference No. 10 of 2005 State of Punjab Vs. Gurvail Singh alias Gela and another ( Virender Singh )

Judge

( A.N. Jindal )

September 22, 2006 Judge

'dalbir/ask/rana'

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : September 22, 2006

Criminal Appeal No. 667-SB of 2005

Satnam Singh Vs. State of Punjab

Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : Ms. Baljeet Kaur Mann, Advocate, for the appellants.

Mr. MS Sidhu, Senior Deputy Advocate General, Punjab.

Mr. A.P.S.Randhawa, Advocate, for the complainant.

Virender Singh, J.

For detailed judgment, see Murder Reference No. 10 of 2005 State of Punjab Vs. Gurvail Singh alias Gela and another ( Virender Singh )

Judge

( A.N. Jindal )

September 22, 2006 Judge

'dalbir/ask/rana'


Copyright

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