Holding

The Supreme Court upheld convictions under Sections 302 and 324 IPC, set aside the conviction under Section 458 IPC, and commuted the death sentence to life imprisonment.

Summary

Lehna was convicted of murder (Sec. 302 IPC), attempt to murder (Sec. 324 IPC) and assault (Sec. 458 IPC) for killing his mother, brother and sister‑in‑law and injuring his father and nephew during a family land dispute. The trial court sentenced him to death, which the High Court confirmed. On appeal, the Supreme Court examined whether the testimony of injured relatives (PW‑6 and PW‑7) could be rejected as partisan, whether the injuries on the accused affected the prosecution case, and whether the death penalty was warranted under the "rarest of rare" doctrine. The Court held that relationship does not per se disqualify a witness, that the eye‑witnesses were reliable, and that there was no evidence of diabolic planning, making death punishment inappropriate. Consequently, the conviction under Sec. 458 was set aside and the death sentence was commuted to life imprisonment, while convictions under Sec. 302 and Sec. 324 were upheld.

Issues considered

The credibility of relatives who are injured eye‑witnesses
Whether the injuries sustained by the accused affect the prosecution case
Whether the conviction under IPC Sec. 458 is sustainable
Whether the death sentence is justified under the "rarest of rare" standard
Appropriate sentencing principles under the Criminal Procedure Code

Legislation cited

Code of Criminal Procedure, 1973s. 354(3), s. 360, s. 361, s. 367(5)
Criminal Procedure Code, 1898s. 367(5)
Indian Penal Code, 1860s. 302, s. 324, s. 458

Subjects

murderdeath penaltywitness credibilityrelative witnessessentencingproportionalityrarest of rare doctrineIPC 302IPC 324IPC 458CPC 354(3)CPC 360CPC 361CPC 367(5)life imprisonment

Judgment

'

LEHN A A
v.
STATE OF HARYANA

JANUARY 22, 2002

[M.B. SHAH, B.N. AGRAWAL AND ARIJIT PASAYAT, JJ.] B

Penal Code, 1860 :

Section 302-Conviction based on evidence of injured eye witnesses-
Death sentence awarded by trial court--Confirmed by High Court-On appeal, C
1 conviction upheld-However no ei•idence of diabolic planning to commit the
crime though the act was cruel-On being deprived of his livelihood on the
land being taken awcry accused exhibited his resentment-Frequency ofquarrels
indicate lack of sinister planning to commit murder-Hence death sentence
not proper--Sentence modified to life imprisonment. D
Section 324-Conviction under-Evidence of injured eye-witnesses-
Held, reliable--Conviction upheld in view thereof

Section 458-Conviction under-Held since no finding recorded by the
courts below as to existence of ingredients of the offence, conviction set aside.
E
Criminal Procedure Code, 1973-Sections 354(3), 360 and 361-
Punishment for murder-Determinative factors-Personality of the offender
as revealed by his character, antecedents and other circumstances and
tractability ofthe offender to reform--Criminal Procedure Code, 1898-Section
367(5)-Criminal Procedure Code (Amendment) Act, 1955.
F
Criminal Trial

Related witnesses-Reliability of-Relationship is not a factor to affect
credibility of a witness.

Injuries on accused-Effect of on prosecution case-Held, per se does G
not affect prosecution version-But when the injuries are not explained and
are of series nature, they assume importance.

Sentencing :

'Just desert '-Principle of-Discussed-Proportionality of punishment H
377
378 SUPREME COURT REPORTS [2002] I S.C.R.

A to crime-Excessive punishment is punishment without guilt.

The appellant-accused was charged for the offences under Sections
302, 458 and 324 IPC. The prosecution case was that due to dispute
between the accused and the other members of his family over ancestral
land, he killed his mother, brother and sister-in-law and caused injuries
B to his father (PW6) and his nephew (PW7).

During trial, the evidence was that 2-3 days before the occurrence,
there was bitter quarrel and there used to be constant quarrel between
accused and his family members over the land; and that deceased brother
of accused and PW6 had many enemies because of their questionable
c credentials, and that the injuries on the accused were of serious nature as t
~
per medical evidence. Trial Court relying on the evidence of PWs 6 and
7, the injured eye witnesses, held the accused guilty of offences punishable
under Sections 302, •458 and 324 IPC and sentenced him to death and
imprisonment for 4 years and 6 years respectively. High Court confirmed
D the order of the Trial Court.

In appeal to this Court, the appellant-accused contended that the
prosecution case was not reliable because tbe eye witnesses could not be
relied upon as they were close relatives and consequently were partisan
witnesses and their presence on the spot of incident was suspicious; and
E that the real assailants could be the enemies of the deceased brother and
PW6; and that death sentence was not warranted as the case did not fall
in the category of "rarest of the rare case"; and that conviction under •
Section 458 IPC was unjustified since the presence of ingredients of the

F
offence were not discussed by the courts below.

Partly allowing the appeal, the Court
..
~

HELD : I.I. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person. Foundation has
G to be laid if plea of false implication is made_ In such cases, Court has to
adopt a careful approach and analyse evidence to find out whether it is
cogent and credible. It cannot be said that the witness being a close relative
is a partisan witness and should not be relied upon. 1383-C; HI
<y·
_..,

Dalip Singh and Ors. v. The State of Punjab, AIR~l 953) SC 364; Guli
H Chand and Ors. v. State of Rajasthan, AIR (1974) SC 276; Vadivelu Thevar
LEHNA v. STATE OF HARYANA 379
? v. The State of Madras, AIR (1957) SC 614; Masa/ti v. The State of Uttar A
9 Pradesh. AIR (1965) SC 202 and State of Purijab v. Jagir Singh Baljit Singh
and Karam Singh, AIR (1973) SC 2407, referred to.

1.2. Presence of PWs 6 and 7 at the site of occurrence is natural.
They were inmates of the house, and therefore no suspicion as suggested
by the accused, regarding their presence can be entertained. Merely B
because there was some hostility between accused and PWs 6 and 7, it is
unbelievable that they would shield the actual culprits to falsely implicate
the accused. Their testimony has not been shaken in spite of incisive cross-
examination. On the contrary, its credibility h~s been enhanced because
of their acceptance of the fact regarding assault on the accused. The plea C
that deceased brother and PW 6 had many enemies because of their
questionable credentials, and they may be the real assailants is too shallow
to warrant acceptance. 1384-G-HJ

1.3. Though injuries on accused person do not per se affect
prosecution version if reliable; when not explained it assumes importance D
if they are serious in nature. Thus in view of the reliability of the evidence
his conviction under Section 302 is upheld. 1391-E-FJ

2. In view of the unimpeached evidence of the injured witnesses PW6
and PW 7, the conviction for offence punishable under Section 324 IPC
does not require any interference. 1385-C) E
3. Since there is no finding recorded by the Courts below as to how
ingredients of the offence punishable under Section 458 IPC exist,
conviction for the said offence is set aside. 1385-C)

4.1. In the peculiar background of the case, death sentence would F
not be proper. A sentence of imprisonment for life will be more
appropriate. The sentence is accordingly modified. The mental condition
of the accused which led to the assault cannot be lost sight of. The same
may not be relevant to judge culpability. But is certainly a factor while
considering question of sentence. There is no evidence of any diabolic G
planning to commit the crime, though cruel was the act. Deprived of his
livelihood on account of the land being taken away, the accused was, as
the evidence shows, exhibiting his displeasure, his resentment. Frequency
Of the quarrels indicate lack of any sinister planning to take away lives of
the deceased. The factual-scenario gives impressions of impulsive act and
not planned assaults. (392-A; 391-G-HJ H
380 SUPREME COURT REPORTS [2002] I S.C.R.

A 4.2. In Cr. P.C. there is a definite swing towards life imprisonment.
Death sentence is ordinarily ruled out and can only be imposed for 'special
reasons', as provided in Section 354(3). In the context of Section 360, the
'special reasons' contemplated by Section 361 must be such as to compel
the Court to hold that it is impossible to reform and rehabilitate the
offender after examining the matter with due regard to the age, character
B and antecedents of the offender and the circumstances in which the offence
was committed. Section 361 and Section 354(3) have both entered the
Statute Book at the same time and they are part of the emerging picture
of acceptance by the legislature of the new trends in criminology. It would
not, therefore, be wrong to assume that the personality of the offender as
C revealed by his age, character, antecedents and other circumstances and
the tractability of the offender to reform must necessarily play the most
prominent role in determining the sentence to be awarded. (385-F-H)

4.3. After the amendment of Section 367(5) of Criminal Procedure
Code, 1898 by Act XXVI of 1955, the former rule that the normal
D punishment for murder is death, is no longer operative and it is now within
the discretion of the Court to pass either of the two sentences prescribed
in this section; but whichever of the two sentences he passes, the Judge
must give his reasons for imposing a particular sentence. The amendment
of Section 367(5), of the old Code does not affect the law regulating
E punishment under the IPC. This amendment relates to procedure and now
Courts are no longer required to elaborate the reasons for not awarding
death penalty; but they cannot depart from sound judicial considerations
preferring the lesser punishment. (386-D-Fl

4.4. The principle of proportion between crime and punishment is a
F principle of just desert that serves as the foundation of every criminal
sentence that is justifiable. As a principle of criminal justice it is hardly
less familiar or less important than the principle that only the guilty ought
to be punished. Indeed, the requirement that punishment not be
disproportionately great, which is a corollary of just desert, is dictated
by the same principle that does not allow punishment of the innocent, for
G any punishment in excess of what is deserved for the criminal conduct is
punishment without guilt. 1390-E-Fl

4.5. Punishment ought always to fit the crime; yet in practice
sentences are determined largely by other consideration. Sometimes it is
the correctional needs of the perpetrator that are offered to justify a
H sentence; sometimes the desirability of keeping him out of circulation, and
LEHNAv. STATE OF HARYANA (ARIJIT PASAYAT, J.] 381
sometimes even the traffic results of his crime. Inevitably these A
considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and
widespread. Uniformly disproportionate punishment has some very
undesirable practical consequences. (390-H; 39i-C)

Ediga Anamma v. State ofAndhra Pradesh, AIR (197 4) SC 799; Bachan B
Singh v. State of Punjab, AIR (1980) SC 898 and Machhi Singh & Ors. v.
State of Punjab, (1983) 3 SCC 470, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
733 of 2001.

From the Judgment and Order dated 7.3.2001 of the Punjab and Haryana
c
High Court in Murder Reference No. 7/2000 and Crl. A. No. 659-DB of
2000.

Vishal Malik (A.C.) for the Appellant.

J.P. Dhanda and K.P. Singh for the Respondent. D
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Lehna (hereinafter referred to as accused) was
awarded "Sentence of Death" by the learned Sessions Judge, Sonepat which
has been confirmed by the Punjab & Haryana High Court. Accusations against E
him were that he took away the lives of his mother, brother and sister-in-law ..
It was also alleged that he caused injury on his father Suraj Mal (PW-6) and
nephew - Chand (PW-7). He was tried for allegedly committing offences
punishable under Sections 302, 458 and 324 of the Indian Penal Code 1860
(in short 'IPC'), was found guilty and accordingly convicted. Corresponding
sentences imposed were sentence of death, 4 years and 6 months respectively. F
The sentences were directed to run concurrently.
Prosecution version sans unnecessary details is as follows :-
Suraj Mal (PW-6) had two sons i.e. the accused and Jai Bhagwan
(hereinafter referred to the deceased by that name) and a younger brother G
Dari ya Singh. The accused and deceased-Jai Bhagwan were residing separately.
Suraj Mal (PW-6) owned 10 acres of land and had given 2 acres to the
accused for the purpose of cultivation. But the accused who was a person of
bad habits and a drunkard wasted time in useless pursuits and did not pay any
attention to cultivation. He tried to alienate the land that was given to him by
his father. This led to rethinking by Suraj Mal (PW-6), who took back the H
382 SUPREME COURT REPORTS [2002] I S.C.R.

A land. This led to serious disputes among the members of the family and there
were frequent quarrels. On August 5, 1998, deceased and his wife, Saroj
were sleeping on the roof of the house. Suraj Mal (PW-6), his wife Manbhari,
their grandsons Chand (PW-7) and Wazir were sleeping in the courtyard.
After mid-night Suraj Mal (PW-6) heard a noise from the roof of the house
B and he switched on the electric light. Chand, Wazir and Manbhari woke up
and they rushed upstairs and found the accused armed with a Gandasa
inflicting blows on both deceased - Saroj and Jai Bhagwan. After causing
injuries to these two, the accused turned towards Suraj Mal (PW-6) and
others; but they ran down the stairs screaming in fear. The accused followed
them and after pushing Manbhari to the ground inflicted blows on her neck
C and when PW-6 and PW-7 tried to intervene, he also inflicted blows on both
of them. Then he ran away from the spot. PW-6 found that his wife had
already succumbed to her injuries. So was the case with his son and daughter-
in-law. Next morning, report was lodged at the police station and investigation
was undertaken. On completion of investigation, charge-sheet was placed
and the accused was charged for offences punishable under Sections 302/
D 458/324 of the JPC. The accused pleaded innocence. The Trial Court relied
on the evidence of PW-6 and PW-7 who were injured eye-witnesses and
found the accused guilty of the aforestated offences. After hearing on the
question of sentence, he awarded death sentence as noted above. The matter
was submitted to the Punjab & Haryana High Court for confirmation of the
E death sentence in terms of Section 366 of the Code of Criminal Procedure,
1973 (in short the 'Code'). The High Court held that the judgment suffered
from no infirmity to warrant any interference. Accordingly, the reference was
accepted and the appeal filed by the accused against the conviction and
sentence was dismissed.

F In support of the appeal before this Court, learned Counsel submitted
that both the Trial Court and the High Court ignored a very significant fact
that !he evidence on which prosecution rested, its version was that of relatives.
There was admitted hostility, rendering the same suspect. The injuries which
were of serious nature on the accused were not explained. That added to
G vulnerability of prosecution version. I inally, it was submitted that this is not
a case which belonged to the category of "rarest of rare" to warrant death
sentence. The non application of mind according to the learned Counsel is
evident from the fact that accused has been treated to be a trespasser in his
own house, for holding him guilty of offence punishable under Section 458
of IPC. There is no discussion whatsoever as to how ingredients of that
H Section are present.
LEHN Av. STA TE OF HAR YANA [ARIJIT PASA YAT. J.] 383

- In reply, learned counsel for the State of Haryana submitted that there A
is· no probation on conviction being not possible on the evidence of relatives.
Additionally, mere non-explanation of injuries, if any, on the accused cannot
be a ground for disbelieving prosecution version. The brutal nature of the
assaults which resulted in loss of three valuable lives is evident from the
nature of injuries noticed on postmortem and on examination of the injured B
witnesses. In essence, submission was to the effect that no interference is
called for in this appeal.

We shall first deal with the contention regarding interestedness of the
witnesses for furthering prosecution version. Relationship is not a factor to
affect credibility of a witness. It is more often than not that a relation would C
not conceal actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In such cases,
Court has to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible.

In Dalip Singh and Ors. v. The State of Punjab. AIR (1953) SC 364, D
it has been laid down as under :
-b "A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily, a close relative would be E
the last person to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there is personal
cadse for enmity, that there is a tendency to drag in an innocent
person against whom a witness has a grudge along with the guilty,
but foundation must be laid for such a criticism and the mere fact of F
relationship far from being a foundation is often a sure guarantee of
truth. However, we are not attempting any sweeping generalization.
Each case must be judged on its owri facts. Our observations are only
made to combat what is so often put forward in cases before us as a
genera! rule of prudence. There is no such general rule. Each case
must be limited to and be governed by its own facts". G
The above decision has since been followed in Guli Chand and Ors. v.
State of Rajasthan, AIR (1974) SC 276, in which Vadive/11 Thevar v. The
State of Madras, AIR (1957) SC 614 was also relied upon.

We may also observe that the ground that the witness being a close H
384 SUPREME COURT REPORTS [2002) I S.C.R.

A relative and consequently being a partisan witness, should not be relied upon,
has no substance. This theory was repelled by this Court as early as in Dalip.
Singh 's case (supra) in which surprise was expressed over the impression
-
which prevailed in the minds of the Members of the Bar that relatives were
not independent witnesses. Speaking through Vivian Bose J., it was observed:-

B "We are unable to agree with the learned Judges of the High Court
that the testimony of the two eye-witnesses requires corroboration. If
the foundation for such an observation is based on the fact that the
witnesses are women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded on the reason
that they are closely related to the deceased we are unable to concur.
c This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in - 'Rameshwar
v. State of Rajasthan ', AIR (1952) SC 54 at p. 59 (A). We find,
however, that it unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel".
D
Again in Masalti v. The State of Uttar Pradesh, AIR (1965) SC 202,
this Court observed:-

"But it would, we think, be unreasonable to contend that evidence
given by witnesses should be discarded only on the ground that it is
E evidence of partisan or interested witnesses ....... The mechanical
rejection of such evidence on the sole ground that it is partisan would
invariably lead to failure of justice. No hard and fast rule can be laid
down as to how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is partisan cannot
F be accepted as correct."

To the same effect is the decision in State of Punjab v. Jagir Singh,
Baljit Singh and Karam Singh, AIR (1973) SC 2407.

Presence of PWs 6 and 7 at the site of occurrence is natural. They were
G inmates of the house, and therefore no suspicion as suggested by the accused,
regarding their presence can be entertained. Merely because there was some
hostility between accused and PWs 6 and 7, it is unbelievable that they would
shield the actual culprits to falsely implicate the accused. Their testimony has
not been shaken in spite of incisive cross-examination. On the contrary, its
H credibility has been enhanced because of their acceptance of the fact regarding
LEHNA v. STATE Or HARYANA [ARIJIT PASAYAT, J.] 385
assault on the accused. The plea that deceased Jai Bhagwan and Suraj Mal A
(PW-6) had many enemies because of their questionable credentials, and they
may be the real assailants is too shallow to warrant acceptance.

Considering the legal position as analysed above, there is no force in
the plea that evidence of PWs 6 and 7 is liable to be discarded merely
because they were relatives of the deceased persons. B
As rightly submitted by the learned Counsel for the accused - appellant,
there is no finding recorded by the Courts below as to how ingredients of the
offence punishable under Section 458 IPC exist. That being the position,
) conviction for the said offence is set aside and consequentially, the sentence.
In view of the unimpeached evidence of the injured witnesses of PW-6 and C
PW-7, the conviction for offence punishable under Section 324 IPC does not
require any interference.

The other question of vital importance is whether death sentence is the
appropriate one. Section 302, IPC prescribes death or life imprisonment as
the penalty for murder. While doing so, the Code instructs the Court as to its D
application. The changes which the Code has undergone in the last three
decades clearly indicate that Parliament is taking note of contemporary .
criminological thought and movement. It is not difficult to discern that in the
Code, there is a definite swing towards life imprisonment. Death sentence is
ordinarily ruled out and can only be imposed for 'special reasons', as provided E
in Section 354(3). There is another provision in the Code which also uses the
significant expression 'Special reason'. It is Section 361. Section 360 of the
1973 Code re-enacts, in substance, Section 562, of the Criminal Procedure
1-- Code, 1898 (in short 'old Code'). Section 361 which is a new provision in
-r the Code makes it mandatory for the Court to record 'special reasons' for not
applying the provisions of Section 360. Section 36 l thus casts a duty upon F
the Court to apply the provisions of Section 360 wherever, it is possible to
do so and to state 'special reasons' if it does not do so. In the context of
Section 360, the 'special reasons' contemplated by Section 361 must be such
as to compel the Court to hold that it is impossible to reform and rehabilitate
the offender after examining the matter with due regard to the age, character G
and antecedents of the offender and the circumstances in which the offence
!? was committed. This is some indication by the Legislature that reformation
and rehabilitation of offenders and not mere deterrence, are now among the
foremost objects of the administration of criminal justice in our country.
Section 361 and Section 354(3) have both entered the Statute Book at the
same time and they are part of the emerging picture of acceptance by the H
386 SUPREME COURT REPORTS [2002] I S.C.R.

A legislature of the new trends in criminology. It would not, therefore, be
wrong to assume that the personality of the offender as revealed by his age,
character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in
determining the sentence to be awarded. Special reasons must have some
B relation to these factors. Criminal justice deals with complex human problems
and diverse human beings. A Judge has to balance the personality of the
offender with the circumstances, situations and the reactions and choose the
appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5),
C old Code, by the Criminal Procedure Code (Amendment) Act, 1955 (XXYI
of 1955) which came into force on January I, 1956, on a conviction for an
offence punishable with death, if the Court sentenced the accused io any
punishment other, than death, the reason why sentence of death was not
passed had to be stated in the judgment. After the amendment of Section
367(5) of old Code by Act XXVI of 1955, it is not correct to hold that the
D normal penalty of imprisonment for life cannot be awarded in the absence of
extenuating circumstances which reduce the gravity of the offence. The matter
is left, after the amendment, to the discretion of the Court. The Court must,
however, take into account all the circumstances, and state its reasons for
whichever of the two sentences it imposes in its discretion. Therefore, the
E former rule that the normal punishment for murder is death is no longer
operative and it is now within the discretion ofthe Court to pass either of the
t•vo sentences prescribed in this section; but whichever of the two sentences
he passes, the Judge must give his reasons for imposing a particular sentence.
The amendment of Section 367(5), of the old Code does not affect the law
regulating punishment under the IPC. This amendment relates to procedure
F and now Courts are no longer required to elaborate the r~asons for not awarding
the death penalty; but they cannot depart from sound judicial considerations
preferring the lesser punishment.

Section 354(3) of the Code, marks a significant shift in the legislative
G policy underlying the old Code as in force immediately before Ist April,
1974, according to which both the alternative sentences of death or
imprisonment for life provided for murder were normal sentences. Now,
under Section 354(3) of the Code the normal punishment for murder is
imprisonment for life and death penalty is an exception. The court is required
to state the reasons for the sentence awarded and in the case of death sentence
H 'special reasons' are required to be stated, that is to say, only special facts
LEHN Av. STATE OF HARY ANA [ARIJIT PASAYAT, J.] 387
and circumstances will warrant the passing of the death sentence. It is in the A
light of these successive legislative changes in Code that the juridical decisions
prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974
have to be understood.

This Court in Ediga Anamma v. State of Andhra Pradesh, AIR (1974)
SC 799) has observed: "Let us crystallize the positive indicators against death B
sentence under Indian Law currently. Where the murderer is too young or too
old, the clemency of penal justice helps him. Where the offender suffers from
socio-economic, psychic or penal compulsions insufficient to attract a legal
exception or to downgrade the crime into a lesser one, judicial commutation

- is permissible. Other general social pressures, warranting judicial notice, with
an extenuating impact may, in special cases, induce the lesser penalty.
Extraordinary features in the judicial process, such as that the death sentence
C

has hung over the head of the culprit excruciatingly long, may persuade the
Court to be compassionate. Likewise, if others involved in the crime and
similarly situated have received the benefit of life imprisonment or if the
offence is only constructive, being under Section 302, read with Section 149, D
or again the accused has acted suddenly under another's instigation, without
premediation, perhaps the Court may humanely opt for life, even like where
a just cause or·foal suspicion of wife's infidelity pushed the criminal into the
crime. On the other hand, the weapons used and the manner of their use, the
horrendous features of the crime and hapless, helpless state of the victim, and E
the like, steel the heart of the law for a sterner sentence. We cannot obviously
feed into a judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society. A legal policy on life
or death cannot be left for ad hoc mood or individual predilection and so we
have sought to objectify to the extent possible, abandoning retributive
ruthlessness, amending the deterrent creed and accepting the trend against the F
extreme and irrevocable penalty of putting out life".

In Bachan Singh v. State of Punjab, AIR (1980) SC 898, it has been
observed that "a real and abiding concern for the dignity of human life
postulates resistance to taking life through law's instrumentality. That ought G
not to be done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed". A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines, inter alia, the following questions may be H
388 SUPREME COURT REPORTS [2002] I S.C.R.

A asked and answered, (a) Is there something uncommon about the crime which
renders sentence of imprisonment for the life inadequate and calls for a death
sentence?; and (b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour of the
offender?
B
Another decision which illuminatingly deals with the question of death
sentence is Machhi Singh & Ors. v. State of Punjab, (1983) 3 SCC 470.

In Machhi Singh 's and Bachan Singh 's cases (supra), the guidelines
which are to be kept in view when considering the question whether the case
C belongs to the rarest of the rare category were indicated.

In Machhi Singh 's case (supra), it was observed:-

"The following questions may be asked and answered as a test to
determine the 'rarest of the rare' case in which death sentence can be
D inflicted :-
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b) Are the circumstances of the crime such that there is no alternative
E but to impose death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour
of the offender?"

The following guidelines which emerge from Bachan Singh 's case .,
F (supra) will have to be applied to the facts of each individual case where the ,
question of imposition of death sentence arises:-

(i) The extreme penalty of death need not be inflicted except m
gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
G 'offender' also require to be taken into consideration along with
the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception.
Death sentence must be imposed only when Iife imprisonment
appears to be an altogether inadequate punishment having regard
H to the relevant circumstances of the crime, and provided, and
LEHN Av. STATE OF HARYANA [ARIJIT PASAYAT, J.] 389

only provided, the option to impose sentence of imprisonment A
for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant
circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances has B
to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before
the option is exercised.

In rarest of rare cases when the collective conscience of the community
is so shocked, that it will expect the holders of the judicial power center to C
inflict death penalty irrespective of their personal opinion as regards desirability
or otherwise of retaining death penalty, death sentence can be awarded. The
community may entertain such sentiment in the following circumstances:-

(I) When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting, or dastardly manner so as to arouse intense D
and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total
depravity and meanness; e.g. murder by hired assassin for money
or reward; or cold-blooded murder for gains of a person vis-a-
vis whom the murderer is in a dominating position or in a position E
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 F
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 G
family or a large number of persons of a particular caste,
i;t' 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 H
390 SUPREME COURT REPORTS (2002] I S.C.R.

A loved and respected by the community.

If upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the answers to the
questions posed by way of the test for the rarest ofrare cases, the circumstances
of the case are such that death sentence is warranted, the Court would proceed
B to do so.

A convict hovers between life and death when the question of gravity
of the offence and award of adequate sentence comes up for consideration.
Mankind has shifted from the state of nature towards a civilized society and
it is no longer the physical opinion of the majority that takes away the liberty
C of a citizen by convicting him and making him suffer a sentence of
imprisonment. Award of punishment following conviction at a trial in a system
wedded to the rule of law is the outcome of cool deliberation in the Court-
room after adequate hearing is afforded to the parties, accusations are brought
against the accused, the prosecuted is given an opportunity of meeting the
D accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man i.e. the
Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle
of just desert that serves as the foundation of every criminal sentence that is
E justifiable. As a principle of criminal justice it is hardly less familiar or less
important than the principle that only the guilty ought to be punished. Indeed,
the requirement that punishment not be disproportionately great, which is a
corollary of just desert, is dictated by the same principle that does not allow
punishment of the innocent, for any punishment in excess of what is deserved
F for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality
in prescribing liability _according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in arriving
at a sentence in each case, presumably to permit sentences that reflect more
G subtle considerations of culpability that are raised by the special facts of each
case. Punishment ought always to fit the crime; yet in practice sentences are
determined largely by other considerations. Sometimes it is the correctional
needs of the perpetrator that are offered to justify a sentence; sometimes the
desirability of keeping him out of circulation, and sometimes even the traffic
results of his crime. Inevitably these considerations cause a departure from
H just desert as the basis of punishment and create cases of apparent injustice
LEHN Av. STATE OF HARYANA (ARIJIT PASAYAT, J.) 391
that are serious and widespread. A
Proportion between crime and punishment is a goal respected in
principle, and in spite of errant notions it remains a strong influence in the
determination of sentences. The practice of punishing all serious crimes with
equal severity is now unknown in civilized societies; but such a radical
departure from the principle of proportionality has disappeared from the law B
only in recent times. Even now a single grave infraction that is thought to call
for uniformly drastic measures. Anything less than a penalty of greatest severity
for any serious crime is thought then to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations
that make punishment unjustifiable when it is out of proportion to the crime. C
Uniformly disproportionate punishment has some very undesirable practical
consequences.

As the background facts go to show the genesis of dispute between the
accused and the other members of his family was land. Accused seems to
have taken exception to his father taking away the land from him. As the D
evidence indicates, he considered his brother, sister-in-law to be responsible
for the same. It is also in evidence that 2-3 days before the occurrence, there
was a bitter quarrel between the accused and other members of his family.
Evidence of PW-7 is to the effect that there used to be constant quarrel
between PW-6, deceased Jai Bhagwan, deceased Saroj on one hand and the E
accused on the other, over ancestral land. It is also in evidence that the
deceased Jai Bhagwan was not of moral character and PW-6 had forcibly
occupied the land of temple for which villagers had set on fire a piece of their
house. Though injuries on accused person do not per se affect prosecution
version if reliable; when not explained it assumes importance if they are
serious in nature. The fact that the injuries were sustained in the present case F
by the accused is not disputed. In fact, PW-7 has admitted that PW-6 had
given a thorough thrashing to the accused in the court-yard after assaults on
the three accused persons. As the medical evidence indicates, the injuries
sustained by the accused were of very serious nature. It is true three lives
have been lost. But at the same time, the mental condition of the accused G
which led to the assault cannot be lost sight of. The same may not be relevant
to judge culpability. But is certainly a factor while considering question of
sentence. There is no evidence of any diabolic planning to commit the crime,
though cruel was the act. Deprived of his livelihood on account of the land
being taken away, the accused was, as the evidence shows, exhibiting his
displeasure, his resentment. Frequency of the quarrels indicate lack of any H
392 SUPREME COURT REPORTS [2002] I S.C.R.

A sinister planning to take away lives of the deceased. The factual scenario
gives impressions of impulsive act and not planned assaults. In the peculiar
background, death sentence would not be proper. A sentence of imprisonment
for life will be more appropriate. The sentence is accordingly modified, while
confirming the conviction for offence punishable under Section 302 !PC.

B Appeal is allowed to the extent indicated above. We record our
appreciation for the assistance rendered by Mr. Vishal Malik who was
appointed as amicus curiae.

K.K.T. Appeal allowed.