GURVAIL SINGH @ GALA & ANOTHERversusSTATE OF PUNJAB

                      (2013] 1 S.C.R. 783


          GURVAIL SINGH @ GALA & ANOTHER                           A
                               v.
                     STATE OF PUNJAB
             (Criminal Appeal No. 1055 of 2006)

                     FEBRUARY 07, 2013
                                                                   B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Sentence/Sentencing - Death sentence - Propriety of -
Conviction u/s. 302134 /PC of 3 accused - Death sentence
to two of the accused - Confirmed by High Court - On appeal, C
held: Death sentence is not warranted - But in view of the fact
that they caused death of 4 persons and nature of injuries
inflicted, they deserve no sympathy - Death sentence is
modified to life imprisonment for a minimum period of thirty
years without remission - Penal Code, 1860 - s. 302134.         D

     Death Sentence - Award of- Principles to be followed -
Held: To award death sentence, aggravating circumstances
(crime test) have to be fully satisfied and there should be no
mitigating circumstance (criminal test) favouring the accused      E
- Even thereafter test of rarest of rare case has to be applied.
     Death sentence - Rarest of rare case test - Criteria -
Held: Test of rarest of rare case depends on the perception
of the society and not Judge-centric'.
                                                                   F
     Appellants-accused, along with 2 other accused
were prosecuted for causing death of 4 people of a family.
Trial court convicted the appellants and one other
accused u/s. 302/34 IPC. Fourth accused was below 18
years of age and hence was sent to Juvenile Board.                 G
Appellants were sentenced to death and the other
accused was awarded file imprisonment. High Court
confirmed their conviction and sentence. Hence the
present appeal by the appellants.
                             783                                   H
    784      SUPREME COURT REPORTS                [2013] 1 S.C.R.

A      The accused confined their contention on the
  question of sentence and stated that death sentence was
  not justified as in view of their age i.e. 34 and 22 years,
  there is possibility of their reform and rehabilitation; that
  antecedents of the appellants were unblemished and that
B since they had already undergone number of years in jail
  they may be set free.

          Partly allowing the appeal, the Court

         HELD: 1. To award death sentence, the aggravating
C   circumstances (crime test) have to be fully satisfied and
    there should be no mitigating circumstance (criminal test)
    favouring the accused. Even if both the tests are satisfied
    as against the accused, even then the Court has to finally
    apply the Rarest of Rare Cases test which depends on
D   the perception of the society and not 'judge-centric', that
    is whether the society will approve the awarding of death
    sentence to certain types of crime or not. While applying
    this test, the Court has to look into variety of factors like
    society's abhorrence, extreme indignation and antipathy
E   to certain types of crimes like rape and murder of minor
    girls, especially intellectually challenged minor girls,
    minor girls with physical disability, old and infirm women
    with those disabilities etc. Courts award death sentence,
    because situation demands, due to constitutional
F   compulsion, reflected by the will of the people, and not
    Judge centric. [Para 13) [792-E-H; 793-A]

       2. In the instant case, the appellants do not deserve
  death sentence. Some of the mitigating circumstances,
  as enunciated in *Machhi Singh case, come to the rescue
G of the appellants. Age definitely is a factor which cannot
  be ignored, though not determinative factor in all fact
  situations. The probability that the accused persons
  could be reformed and rehabilitated is also a factor to be
  borne in mind. Due to the fact that the appellants are
H instrumental for the death of four persons and nature of
  GURVAIL SINGH @ GALA v. STATE OF PUNJAB               785


injuries they have inflicted, in front of PW1, whose son,      A
daughter-in-law and two grand children were murdered,
the appellants deserve no sympathy. Considering the
totality of facts and circumstances of the present case,
imposition of death sentence on the appellants was not
warranted but while awarding life imprisonment to the          B
appellants, it is held that they must serve a minimum of
thirty years in jail without remission. The sentence
awarded by the trial court and confirmed by the High
Court is modified from death to life imprisonment. [Paras
13 and 14) [792-D-E; 793-8-D]                                  C

    *Machhi Singh v. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Sangeet and Anr. v. State of Haryana
(2012) 11 SCALE 140 - relied on.

     Bachitar Singh and Anr. v. State of Punjab (2002) 8 SCC   D
125: 2002(2) Suppl. SCR 621; Prakash Dhawal Khairner
(Patel) v. State ofMaharashtra (2002) 2 SCC 35: 2001 (5)
 Suppl. SCR 612; Ramesh and Ors. v. State of Rajasthan
(2011) 3 SCC 685: 2011 (4) SCR 585; Sandeep v. State of
U.P. (2012) 6 SCC 107; Sangeet and Anr. v. State of            E
Haryana (2012) 11 SCALE 140 - cited.

    Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Santosh KumarSatishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498:2009 (9) SCR 90;
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20; 1973 (2)      F
SCR 541; Swami Shraddananda (2) v. State of Karnataka
(2008) 13 SCC767: 2008 (11) SCR 93 - referred to.
                    Case Law Reference:
                                                               G
  (1980) 2 sec 684             Referred to       Para 9
 2002 (2) Suppl. SCR 621       Cited             Para 9
 2001 (5) Suppl. SCR 612       Cited             Para 9
 2009 (9) SCR 90               Referred to       Para 9        H
    786      SUPREME COURT REPORTS                [2013) 1 S.C.R.


A     2011 (4) SCR 585              Cited              Para 9
      (2012) s sec 101              Cited              Para 9
      1983 (3) SCR 413              Relied on          Para 10
      (2012) 11 SCALE 140           Relied on          Para 11
8
      1973 (2) SCR 541              Referred to        Para 11
      2008 (11) SCR 93              Referred to        Para 11
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
c   No. 1055 of 2006.

        From the Judgment & Order dated 22.09.2006 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 890-DB of 2005 and M.R. No. 10 of 2005.
D
        Rishi Malhotra, Tara Chandra Sharma, Uma Datta, Neelam
    Sharma for the Appellants.

        Jayant K. Sud, AAG, Vishal Dabas, Chirag Khurana and
    Kuldip Singh for the Respondent.
E
          The Judgment of the Court was delivered by

       K.S. RADHAKRISHNAN, J. 1. This criminal appeal
  arises out of the judgment dated 22.9.2006 passed by the High
  Court of Punjab and Haryana in Criminal Appeal No. 890-DB
F of 2005 and Murder Reference No. 10 of 2005. The High Court
  dismissed the appeal of the accused persons and also
  reference was confirmed.
       2. The appellants, along with two others, were tried for an
G offence under Section 302 read with Section 34 IPC for murder
  of one Kulwant Singh, his two sons - Gurwinder Singh and
  Davinder Singh and his wife - Sarabjit Kaur on 21.8.2000 at
  about 1.30 am and were convicted for murder and awarded
  death sentence.
H
    GURVAIL SINGH @ GALA v. STATE OF PUNJAB                      787
             [K.S. RADHAKRISHNAN, J.]
       3. The prosecution case, briefly stated, is as follows:         A

         Balwant Singh and Jaswant Singh are two sons of Sharam
   Singh (PW 1). Both Balwant Singh and Jaswant Singh died
    prior to the date of the incident on 21.8.2000. Sharam Singh's
   third son Kulwant Singh had two sons - Gurwinder Singh and          B
    Oavinder Singh. Sarabjit Kaur was his wife. PW1 (Sharam
   Singh) had 8 acres of land at Village Bhittewad, District
   Amritsar, which was mutated in his name. In the family partition,
   that 8 acres of land was divided into four shares, i.e. PW1 gave
   2 acres of land each to his sons and wife and 2 acres of land
  was retained by him. 2nd appellant Jaj Singh and his brother         C
   Satnam Singh - accused and his mother Amarjit Kaur -
   accused, were pressurising on PW1 to get the land transferred
   in their names in the Revenue record. PW1 wanted them to
                                 '
  spend the money for mutation, which was not done. There were
  frequent quarrels between PW1, 2nd appellant and Amarjit Kaur        D
  on that. They nurtured a feeling that PW1, under the influence
  of his son Kulwant Singh, would not mutate their shares in their
  names. About 8 to 9 days prior to the incident, 2nd appellant,
  Satnam Singh and 1st appellant Gurvail Singh went to the
  house of PW1and threatened him that in case he did not give          E
  their share in the land and mutated in their names, they would
  kill him and his son Kulwant Singh. On 20.8.2000, the appellants
  and other accused persons were found sitting on a cot outside
  the house of PW1, threatening PW1 and Kulwant Singh that
  they would not be spared, since the properties were not              F
, mutated in their names.

      4. PW1, on the intervening night of 20-21.8.2000, was
 sleeping in the drawing room of his house and Kulwant Singh,
 his wife Sarabjir Kaur and two sons Gurwinder Singh and               G
 Davinder Singh were sleeping in the courtyard. At about 1-1.30
 a.m. on 21.8.2000, PW1 heard somebody knocking at the door
 of his house and he saw through the window the appellants,
 Satnam Singh and Amarjit Kaur. 1st appellant was carrying
 Toka, 2nd appellant was armed with Datar and Amarjit Kaur             H
    788     SUPREME COURT REPORTS                 [2013) 1 S.C.R.

A was carrying Kirpan. 2nd appellant Jaj Singh opened the attack
  and gave Datar blow to Kulwant Singh and his brother Satnam
  Singh and inflicted Kirpan blows on Sarabjit Kaur. 1st appellant
  Gurvail Singh, who was armed with Toka, starting assaulting
  Gurwinder Singh and Davinder Singh. PW1 tried to intervene
s and avoid the incident and raised hue and cry, which attracted
  Dalbag Singh and he opened the door of the Baithak room in
  which PW1 was kept locked. Due to this incident, Kulwant Singh,
  his wife Sarabjit Kaur and two sons Gurwinder Singh and
  Davinder Singh were murdered.
c      5. PW1 gave the first information statement to PW?, SHO,
  Police at Police Station Raja Sansi. The statement was
  recorded in the morning at about 8.00 am. The formal FIR was
  recorded at about 9.00 am under Sectjon 302 read with Section
  34 IPC at Police Station Raja Sansi, Amritsar. S.I. Mandip
D Singh, PW7, took up the investigation. The inquest report of all
  the four dead bodies was prepared and the bodies were sent
  for post-mortem. The appellants Gurvail Singh and Jaj Singh
  were arrested on 25.8.2000 and 5.9.2001 respectively. Satnam
  Singh was arrested on 25.8.2000 and Amarjit Kaur on
E 26.8.2000. All the accused were charged for offence under
  Section 302 read with Section 34 IPC.

        6. Dr. Gurmanjit Rai, PW2 conducted the autopsy on the
  dead body of Kulwant Singh on 21.8.2000. According to him,
F all the injuries were ante-mortem in nature and the cause of
  death of Kulwant Singh was severance of neck structure.
  According to him, injury no. 2 sustained by Kulwant Singh was
  sufficient for causing death in the ordinary course of nature. Dr.
  Gurmanjit Rai also conducted the post-mortem on the dead
  body of Sarabjit Singh on the same day and opined that the
G cause of death was severance of neck structure and injury no.
  2 was sufficient for causing death in the ordinary course of
  nature. Dr. Amarjit Singh PW9 conducted the autopsy on the
  dead bodies of Gurwinder Singh and Davinder Singh and
  opined that the death was due to severance of neck structure,
H
   GURVAIL SINGH @ GALA v. STATE OF PUNJAB                    789
            [K.S. RADHAKRISHNAN, J.]
which was sufficient to cause death in the ordinary course of        A
nature. On the side of the prosecution, PW1 to PW10 were
examined and for the defence DW1 to DW6 were examined.

      7. The trial Court, after considering all the oral and
documentary evidence, found all the accused guilty under             B
Section 302 read with Section 34 IPC. The trial Court noticed
that Satnam Singh was below 18 years of age and was
Juvenile and hence he was sent to the Juvenile Justice Board
for passing the necessary orders in accordance with the
provisions of the Juvenile Justice (Care and Protection of           C
Children) Act, 2000. So far as Amarjit Kaur is concerned, the
Court on evidence found that she had played a prominent role
and hence was awarded life imprisonment and a fine of
Rs.2,000/- under Section 302 IPC for each of the murders and,
in default of payment of fine, to further undergo one year RI and
all the sentences were directed to run concurrently. So far as       D
Gurvail Singh (1st appellant) and Jaj Singh (2nd appellant) are
concerned, the trial Court took the view that it is they who had
mercilessly murdered Kulwant Singh and also Gurwinder Singh
and Davinder Singh. The trial Court found no mitigating factors
in their favour and held that the case would fall in the category    E
of "rarest of rare cases". Consequently, they were convicted and
awarded death sentence.

     8. Both Gurvail Singh and Satnam Singh filed appeals
before the High Court of Punjab and Haryana, which were heard        F
along Murder Reference No. 10 of 2005 and the High Court
also concurred with the views of the trial Court and took the
view that it was a fit case where the death sentence is the
adequate punishment, since it falls within the category of "rarest
of rare cases", against which this appeal has been preferred.        G

     9. Shri Rishi Malhotra, learned counsel appearing on
behalf of 1st appellant and Shri Tara Chandra Sharma, learned
counsel appearing on behalf of 2nd appellant, confined their
arguments more on the sentence, rather than on the findings
recorded by the Courts below on conviction, in our view rightly.     H
    790      SUPREME COURT REPORTS                    (2013) 1 S.C.R.


A   We have gone through the entire evidence, oral and
    documentary and we are of the considered opinion, that no
    grounds have been made out to upset the well considered
    judgment of the trial court as well as that of the High Court.
    Learned counsel, at length, placed before us the various
B   mitigating circumstances which, according to them, were not
    properly addressed either by the trial Court or the High Court
    and wrongly awarded the death sentence to both the appellants
    treating the case as "rarest of rare cases". The appellant was
    arrested on 25.8.2000 and, since then, he is in jail and he was
c   about 34 years of age on the date of incident and is married
    and has four children. 2nd appellant was aged 22 years at the
    time of incident. Looking to the age of the appellants, learned
    counsel submitted that the possibility of their reformation and
     rehabilitation cannot be ruled out. Further, it is also pointed out
    that the antecedents of the appellants are unblemished and they
0
     had not indulged in any criminal activities and it was property
    dispute which culminated in the death of few persons. Learned
    counsels pointed out that since they had already undergone
    sufficient number of years in jail, they may be set free. Learned
E    counsels also placed reliance on the judgments of this Court
     in Bachan Singh v. State of Punjab (1980) 2 SCC 684,
     Bachitar Singh and Another v. State of Punjab (2002) 8 SCC
     125, Prakash Dhawal Khairner (Patel) v. State of Maharashtra
     (2002) 2 SCC 35, Santosh Kumar Satishbhushan Bariyar v.
     State of Maharashtra (2009) 6 SCC 498, Ramesh and Others
F    v. State of Rajasthan (2011) 3 SCC 685, Sandeep v. State
     of U.P. (2012) 6 sec 107 etc.
       10. Shri Jayant K. Sud, learned Additional Advocate
  General, State of Punjab, appearing on behalf of the State, on
G the other hand, submitted that the appellants deserve no
  sympathy, since they were instrumental for the death of four
  persons - Kulwant Singh, his wife Sarabjit Kaur and two sens
  Gurwinder Singh and Davinder Singh. Shri Sud submitted that
  the appellants had wiped off the entire family in the presence
H of PW1 and, therefore, the appellants deserve no sympathy
  GURVAIL SINGH @ GALA v. STATE OF PUNJAB                  791
           [K.S. RADHAKRISHNAN, J.]
and the case clearly calls for extreme penalty of capital         A
punishment. Shri Sud also submitted that the murder was
committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and
extreme indication of the community, and hence appellants
deserve no sympathy. Reference was also made to the               B
judgment of this Court in Machhi Singh v. State of Punjab
(1983) 3 sec 470 and submitted that none of the mitigating
circumstances laid down by the Court would come to the rescue
of the appellants so as to escape them from capital punishment.

      11. This Court has recently in Sangeet & Another v. State C
of Haryana (2012) 11 SCALE 140 (in which one of us - K. S.
Radhakrishnan - was also a member) elaborately discussed
the principles which have to be applied in a case when the Court
is called upon to determine whether the case will fall under the
category of "rarest of rare cases" or not. The issue of D
aggravating and mitigating circumstances has been elaborately
dealt with by this Court in para 27 of that judgment. This Court
noticed that the legislative change and Bachan Singh
discarding proposition (iv)(a) of Jagmohan Singh v. State of
 U.P. (1973) 1 SCC 20, Machhi Singh revived the "balancing" E
of aggravating and mitigating circumstances through a balance
sheet theory. In doing so, it sought to compare aggravating
circumstances pertaining to a crime with the mitigating
circumstances pertaining to a criminal. This Court held that
these are completely distinct and different elements and cannot F
be compared with one another and a balance sheet cannot be
drawn up of two distinct and different constituents of an incident.
Reference was also made to the judgment of this Court in
Swami Shraddananda (2) v. State of Karnataka (2008) 13
sec 767, and this Court opined that not only does the G
aggravating and mitigating circumstances approach need a
fresh look but the necessity of adopting this approach also
needs a fresh look in the light of the conclusions in Bachan
Singh. This Court held that even though Bachan Singh
intended "principled sentencing", sentencing has now really H
    792     SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A become judge-centric as highlighted in Swamy Shraddananda
  and Bariyar. The ratio of crime and criminal has also been
  elaborately dealt with in Sangeet, so also the standardization
  and categorization of crimes. This Court noticed that despite
  Bachan Singh, the particular crime continues to play any more
B important role than "crime and criminal".

        12. This Court in Sangeet noticed that the circumstances
  of criminal referred to in Bachan Singh appear to have taken
  a bit of back seat in the sentencing process and took the view,
C as already indicated, balancing test is not the correct test in
  deciding whether the capital punishment be awarded or not. We
  may, in this case, go a little further and decide what will be the
  test that we can apply in a case where death sentence is
  proposed.

D      13. We notice that, so far as this case is concerned,
  appellants do not deserve death sentence. Some of the
  mitigating circumstances, as enunciated in Machhi Singh,
  come to the rescue of the appellants. Age definitely is a factor
  which cannot be ignored, though not determinative factor in all
E fact situations. The probability that the accused persons could
  be reformed and rehabilitated is also a factor to be borne in
  mind. To award death sentence, the aggravating circumstances
  (crime test) have to be fully satisfied and there should be no
  mitigating circumstance (criminal test) favouring the accused.
F Even if both the tests are satisfied as against the accused,
  even then the Court has to finally apply the Rarest of Rare
  Cases test (R-R Test), which depends on the perception of the
  society and not "judge-centric", that is whether the society will
  approve the awarding of death sentence to certain types of
G crime or not. While applying this test, the Court has to look into
  variety of factors like society's abhorrence, extreme indignation
  and antipathy to certain types of crimes like rape and murder
  of minor girls, especially intellectually challenged minor girls,
  minor girls with physical disability, old and infirm women with
  those disabilities etc. examples are only illustrative and not
H
  GURVAIL SINGH @ GALA v. STATE OF PUNJAB                   793
           [K.S. RADHAKRISHNAN, J.]
exhaustive. Courts award death sentence, because situation         A
demands, due to constitutional compulsion, reflected by the will
of the people, and not Judge centric.

    14. We are of the view, so far as this case is concerned,
that the extreme sentence of capital punishment is not             8
warranted. Due to the fact that the appellants are instrumental
for the death of four persons and nature of injuries they have
inflicted, in front of PW1, whose son, daughter-in-law and two
grand children were murdered, we are of the view that the
appellants deserve no sympathy. Considering the totality of        C
facts and circumstances of this case we hold that imposition
of death sentence on the appellants was not warranted but while
awarding life imprisonment to the appellants, we hold that they
must serve a minimum of thirty years in jail without remission.
The sentence awarded by the trial court and confirmed by the
High Court is modified as above. Under such circumstance, we       D.
modify the sentence from death to life imprisonment. Applying
the principle laid down by this Court in Sandeep (supra), we
are of the view that the minimum sentence of thirty years would
be an adequate punishment, so far as the facts of this case
are concerned.                                                     E

    Appeal is partly allowed.

K.K.T.                                  Appeal partly allowed .




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