Arijit Pasayat, J.
1. Lehna (hereinafter referred to as accused) was awarded 'Sentenceof Death' by the learned Sessions Judge, Sonepat which has beenconfirmed by the Punjab & Haryana High Court. Accusations against himwere 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 committingoffences punishable under Sections 302 458 and 324 of the Indian PenalCode 1860 (in short 'IPC'), was found guilty and accordingly convicted.Corresponding sentences imposed were sentence of death, 4 years and 6months respectively. The sentences were directed to run concurrently.
2. 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 Youngerbrother Dariya Singh. The accused and deceased-Jai Bhagwan wereresiding separately. Suraj Mal (PW-6) owned 10 acres of land and hadgiven 2 acres to the accused for the purpose of cultivation. But theaccused who was a person of bad habits and a drunkard wasted time inuseless pursuits and did not pay any attention to cultivation. He tried toalienate the land that was given to him by his father. This led torethinking by Suraj Mal (PW-6), who took back the land. This led toserious disputes among the members of the family and there werefrequent quarrels. On August 5, 1998, deceased and his wife, Saroj weresleeping 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 houseand he switched on the electric light. Chand, Wazir and Manbhari wokeup and they rushed up stairs and found the accused armed with aGandasa inflicting blows on both deceased - Saroj and Jai Bhagwan. Aftercausing injuries to these two, the accused turned towards Suraj Mal (PW-6) and others; but they ran down the stairs screaming in fear. Theaccused followed them and after pushing Manbhari to the groundinflicted blows on her neck and when PW-6 and PW-7 tried to intervene,he also inflicted blows on both of them. Then he ran away from thespot. PW-6 found that his wife had already succumbed to her injuries. Sowas the case with his son and daughter-in-law. Next morning, report waslodged at the police station and investigation was undertaken. Oncompletion of investigation, charge-sheet was placed and the accused wascharged for offences punishable under Sections 302/ 458/ 324 of the IPC.The accused pleaded innocence. The Trial Court relied on the evidence ofPW-6 and PW-7 who were injured eye-witnesses and found the accusedguilty of the aforestated offences. After hearing on the question ofsentence, he awarded death sentence as noted above. The matter wassubmitted to the Punjab & Haryana High Court for confirmation of thedeath sentence in terms of Section 366 of the Code of Criminal Procedure,1973 (in short the 'Code'). The High Court held that the judgmentsuffered from no infirmity to warrant any interference. Accordingly, thereference was accepted and the appeal filed by the accused against theconviction and sentence was dismissed.
3. In support of the appeal before this Court, learned Counselsubmitted that both the Trial Court and the High Court ignored a verysignificant fact that the evidence on which prosecution rested, its versionwas that of relatives. There was admitted hostility, rendering the samesuspect. The injuries which were of serious nature on the accused werenot explained. That added to vulnerability of prosecution version. Finally,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 mindaccording to the learned Counsel is evident from the fact that accusedhas been treated to be a trespasser in his own house, for holding himguilty of offence punishable under Section 458 of IPC. There is nodiscussion whatsoever as to how ingredients of that Section are present.
4. In reply, learned counsel for the State of Haryana submitted thatthere is no probation on conviction being not possible on the evidence ofrelatives. Additionally, mere non-explanation of injuries, if any, on theaccused cannot be a ground for disbelieving prosecution version. Thebrutal nature of the assaults which resulted in loss of three valuable livesis evident from the nature of injuries noticed on postmortem and onexamination of the injured witnesses. In essence, submission was to theeffect that no interference is called for in this appeal.
5. We shall first deal with the contention regarding interestedness ofthe witnesses for furthering prosecution version. Relationship is not afactor to affect credibility of a witness. It is more often than not that arelation would not conceal actual culprit and make allegations against aninnocent person. Foundation ha to be laid if plea of false implication ismade. In such cases, Court has to adopt a careful approach and analyseevidence to find cut whether it is cogent and credible.
6. In Dalip Singh and Ors. v. The State of Punjab : [1954]1SCR145 ,it has been laid down as under:
'A witness is normally to be considered independentunless he or she springs from sources which are likelyto be tainted and that usually means unless the witnesshas cause, such as enmity against the accused, to wishto implicate him falsely. Ordinarily, a close relativewould be the last person to screen the real culprit andfalsely implicate an innocent person. It is true, whenfeeling run high and there is personal cause forenmity, that there is a tendency to drag in an innocentperson against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such acriticism and the mere fact of relationship far frombeing a foundation is often a sure guarantee of truth.However, we are not attempting any sweepinggeneralization. Each case must be judged on its ownfacts. Our observations are only made to combat whatis so often put forward in cases before us as a generalrule of prudence. There is no such general rule. Eachcase must be limited to and be governed by its ownfacts'.
7. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan : 1974CriLJ331 : 1974CriLJ331 , in which Vadivelu Thevar v. The State of Madras : 1957CriLJ1000 : 1957CriLJ1000 was also relied upon.
8. We may also observe that the ground that the witness being a closerelative and consequently being a partisan witness, should not be reliedupon, has no substance. This theory was repelled by this Court as earlyas in Dalip Singh's case (supra) in which surprise was expressed over theimpression which prevailed in the minds of the Members of the Bar thatrelatives were not independent witnesses. Speaking through Vivian BoseJ., it was observed:-
' We are unable to agree with the learned Judges of theHigh Court that the testimony of the two eye-witnessesrequires corroboration. If the foundation for such anobservation is based on the fact that the witnesses arewomen and that the fate of seven men hangs on theirtestimony, we know of no such rule. If it is grounded onthe reason that they are closely related to the deceasedwe are unable to concur. This is a fallacy common tomany criminal cases and one which another Bench ofthis Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' : 1952CriLJ547 : 1952CriLJ547 . Wefind however, that it unfortunately still persists, if notin the judgments of the Courts, at any rate in thearguments of counsel'.
9. Again in Masalti v. The State of Uttar Pradesh : [1964]8SCR133 ,this Court observed:-
'But it would, we think, be unreasonable tocontend that evidence given by witnesses should bediscarded only on the ground that it is evidence ofpartisan or interested witnesses..... The mechanicalrejection of such evidence on the sole ground that it ispartisan would invariably lead to failure of justice. Nohard and fast rule can be laid down as to how muchevidence should be appreciated. Judicial approach hasto be cautious in dealing with such evidence; but theplea that such evidence should be rejected because it ispartisan cannot be accepted as correct.'
10. To the same effect is the decision in State of Punjab v. Jagir Singh,Baljit Singh and Karam Singh : 1973CriLJ1589 .
11. Presence of PWs 6 and 7 at the site of occurrence is natural. Theywere inmates of the house, and therefore no suspicion as suggested bythe accused, regarding their presence can be entertained. Merely becausethere was some hostility between accused and PWs 6 and 7, it isunbelievable that they would shield the actual culprits to falsely implicatethe accused. Their testimony has not been shaken in spite of incisivecross-examination. On the contrary, its credibility has been enhancedbecause of their acceptance of the fact regarding assault on the accused.The plea that deceased Jai Bhagwan and Suraj Mal (PW-6) had manyenemies because of their questionable credentials, and they may be thereal assailants is too shallow to warrant acceptance.
12. Considering the legal position as analysed above, there is no forcein the plea that evidence of PWs 6 and 7 is liable to be discarded merelybecause they were relatives of the deceased persons.
13. As rightly submitted by the learned Counsel for the accused -appellant, there is no finding recorded by the Courts below as to howingredients of the offence punishable under Section 458 IPC exist. Thatbeing the position, conviction for the said offence is set aside andconsequentially, the sentence. In view of the unimpeached evidence of theinjured witnesses of PW-6 and PW-7, the conviction for offence punishableunder Section 324 IPC does not require any interference.
14. The other question of vital importance is whether death sentence isthe appropriate one. Section 302, IPC prescribes death or lifeimprisonment as the penalty for murder. While doing so, the Codeinstructs the Court as to its application. The changes which the Code hasundergone in the last three decades clearly indicate that Parliament istaking note of contemporary criminological thought and movement. It isnot difficult to discern that in the Code, there is a definite swing towardslife imprisonment. Death sentence is ordinarily ruled out and can only beimposed for 'special reasons', as provided in Section 354(3). There isanother 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 Code, 1898(in short 'old Code'). Section 361 which is a new provision in the Codemakes it mandatory for the Court to record 'special reasons' for notapplying the provisions of Section 360. Section 361 thus casts a dutyupon the Court to apply the provisions of Section 360 wherever, it ispossible to do so and to state 'special reasons' if it does not do so. In thecontext of Section 360, the 'special reasons' contemplated by Section 361must be such as the compel the Court to hold that it is impossible toreform and rehabilitate the offender after examining the matter with dueregard to the age, character and antecedents of the offender and thecircumstances in which the offence was committed. This is someindication by the Legislature that reformation and rehabilitation ofoffenders and not mere deterrence, are now among the foremost objectsof the administration of criminal justice in our country. Section 361 andSection 354(3) have both entered the Statute Book at the same time andthey are part of the emerging picture of acceptance by the legislature ofthe new trends in criminology. It would not, therefore, be wrong toassume that the personality of the offender as revealed by his age,character, antecedents and other circumstances and the tractability ofthe offender to reform must necessarily play the most prominent role indetermining the sentence to be awarded. Special reasons must have somerelation to these factors. Criminal justice deals with complex humanproblems and diverse human beings. A Judge has to balance thepersonality of the offender with the circumstances, situations and thereactions and choose the appropriate sentence to be imposed.
15. It should be borne in mind that before the amendment of Section367(50, old Code, by the Criminal Procedure Code (Amendment) Act, 1955(XXVI of 1955) which came into force on January 1, 1956, on a convictionfor an offence punishable with death, if the Court sentenced the accusedto any punishment other than death, the reason why sentence of deathwas not passed had to be stated in the judgment. After the amendment ofSection 367(5) of old Code by Act XXVI of 1955, it is not correct to holdthat the normal penalty of imprisonment for life cannot be awarded inthe absence of extenuating circumstances which reduce the gravity of theoffence. The matter is left, after the amendment, to the discretion of theCourt. The Court must, however, take into account all the circumstances,and state its reasons for whichever of the two sentences it imposes in itsdiscretion. Therefore, the former rule that the normal punishment formurder is death is no longer operative and it is now within the discretionof 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 hisreasons for imposing a particular sentence. The amendment of Section367(5), of the old Code does not affect the law regulating punishmentunder the IPC. This amendment relates to procedure and now Courts areno longer required to elaborate the reasons for not awarding the deathpenalty; but they cannot depart from sound judicial considerationspreferring the lesser punishment.
16. Section 354(3) of the Code, marks a significant shift in thelegislative policy underlying the old Code as in force immediately before1st April, 1974, accordingly to which both the alternative sentences of deathor imprisonment for life provided for murder were normal sentences.Now, under Section 354(3) of the Code the normal punishment formurder is imprisonment for life and death penalty is an exception. Thecourt is required to state the reasons for the sentence awarded and in thecase of death sentence 'special reasons' are required to be stated, that isto say, only special facts and circumstances will warrant the passing ofthe death sentence. It is in the light of these successive legislative changesin Code that the juridical decisions prior to the amendment made by Act26 of 1955 and again Act 2 of 1974 have to be understood.
17. This Court in Ediga Anamma v. State of Andhra Pradesh : 1974CriLJ683 has observed' 'Let us crystallize the positive indicators againstdeath sentence under Indian Law currently. Where the murderer is tooyoung or too old, the clemency of penal justice helps him. Where theoffender suffers from socio-economic, psychic or penal compulsionsinsufficient to attract a legal exception or to downgrade the crime into alesser one, judicial commutation is permissible. Other general socialpressures, warranting judicial notice, with an extenuating impact may, inspecial cases, induce the lesser penalty. Extraordinary features in thejudicial process, such as that the death sentence has hung over the headof the culprit excruciatingly long, may persuade the Court to becompassionate. Likewise, if others involved in the crime and similarlysituated have received the benefit of life imprisonment or if the offence isonly constructive, being under Section 302, read with Section 149, oragain the accused has acted suddenly under another's instigation,without premediation, perhaps the Court may humanely opt for life, evenlike where a just cause or real suspicion of wifely infidelity pushed thecriminal into the crime. On the other hand, the weapons used and themanner of their use, the horrendous features of the crime and hapless,helpless state of the victim, and the like, steel the heart of the law for asterner sentence. We cannot obviously feed into a judicial computer allsuch situations since they are astrological imponderables in an imperfectand undulating society. A legal policy on life or death cannot be left forad hoc mood or individual predilection and so we have sought to objectifyto the extent possible, abandoning retributive ruthlessness, amending thedeterrent creed and accepting the trend against the extreme andirrevocable penalty of putting out life'.
18. In Bachan Singh v. State of Punjab : 1980CriLJ636 , it has beenobserved that 'a real and abiding concern for the dignity of human lifepostulates resistance to taking life through law's instrumentality. Thatought not to be done save in the rarest of rare cases when the alternativeoption is unquestionably foreclosed'. A balance-sheet of aggravating andmitigating circumstances has to be drawn up and in doing so themitigating circumstances have to be accorded full weightage and a justbalance has to be struck between the aggravating and the mitigatingcircumstances before the option is exercised. In order to apply theseguidelines, inter alia, the following questions may be asked andanswered, (a) is there something uncommon about the crime whichrenders sentence of imprisonment for the life inadequate and calls for adeath sentence?; and (b) Are the circumstances of the crime such thatthere is no alternative but to impose death sentence even after accordingmaximum weightage to the mitigating circumstances which speak infavour of the offender?
19. Another decision which illuminatingly deals with the question ofdeath sentence is Machhi Singh and Ors. v. State of Punjab : 1983CriLJ1457 .
20. In Machhi Singh's and Bachan Singh's cases (supra), the guidelineswhich are to be kept in view when considering the question whether thecase belongs to the rarest of the rare category were indicated.
21. In Machhi Singh's case (supra), it was observed:-
'The following questions may be asked and answeredas a test to determine the 'rarest of the rare' case in whichdeath sentence can be inflicted:-
(a) Is there something uncommon about thecrime which renders sentence ofimprisonment for life inadequate and callsfor a death sentence?
(b) Are the circumstances of the crime suchthat there is no alternative but to imposedeath sentence even after accordingmaximum weightage to the mitigatingcircumstances which speak in favour ofthe offender?'
22. The following guidelines which emerge from Bachan Singh's case(supra) will have to be applied to the facts of each individual case wherethe question of imposition of death sentence arises:-
(i) The extreme penalty of death need not beinflicted except in gravest cases of extremeculpability.
(ii) Before opting for the death penalty thecircumstances of the 'offender' alsorequire to be taken into considerationalong with the circumstances of the'crime'.
(iii) Life imprisonment is the rule and deathsentence is an exception. Death sentencemust be imposed only when lifeimprisonment appears to be an altogetherinadequate punishment having regard tothe relevant circumstances of the crime,and provided, and only provided, theoption to impose sentence of imprisonmentfor life cannot be conscientiously exercisedhaving regard to the nature andcircumstances of the crime and all therelevant circumstances.
(iv) A balance-sheet of aggravating andmitigating circumstances has to be drawnup and in doing so the mitigatingcircumstances has to be accorded fullweightage and a just balance has to bestruck between the aggravating and themitigating circumstances before the optionis exercised.
23. In rarest of rare cases when the collective conscience of thecommunity is so shocked, that it will expect the holders of the judicialpower center to inflict death penalty irrespective of their personal opinionas regards desirability or otherwise of retaining death penalty, deathsentence can be awarded. The community may entertain such sentimentin the following circumstances:-
(1) When the murder is committed in anextremely brutal, grotesque, diabolical,revolting, or dastardly manner so as toarouse intense and extreme indignation ofthe community.
(2) When the murder is committed for amotive which evinces total depravity andmeanness; e.g. murder by hired assassinfor money or reward; or cold-bloodedmurder for gains of a person vis-a-viswhom the murderer is in a dominatingposition or in a position of trust; ormurder is committed in the course forbetrayal of the motherland.
(3) When murder of a member of a ScheduledCaste or minority community etc., iscommitted not for personal reasons but incircumstances which arouse social wrath,or in cases of 'bride burning' or 'dowrydeaths' or when murder is committed inorder to remarry for the sake of extractingdowry once again or to marry anotherwoman on account of infatuation.
(4) When the crime is enormous is proportion.For instance when multiple murders, sayof all or almost all the members of afamily or a large number of persons of aparticular caste, community, or locality,are committed.
(5) When the victim of murder is an innocentchild, or a helpless woman or old or infirmperson or a person vis-a-vis whom themurderer is in a dominating position, or apublic figure generally loved and respectedby the community.
24. If upon taking an overall global view of all the circumstances in thelight of the aforesaid propositions and taking into account the answers tothe questions posed by way of the test for the rarest of rare cases, thecircumstances of the case are such that death sentence is warranted, theCourt would proceed to do so.
25. A convict hovers between life and death when the question ofgravity of the offence and award of adequate sentence comes up forconsideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majoritythat takes away the liberty of a citizen by convicting him and making himsuffer a sentence of imprisonment. Award of punishment followingconviction at a trial in a system wedded to the rule of law is the outcomeof cool deliberation in the Court-room after adequate hearing is affordedto the parties, accusations are brought against the accused, theprosecuted is given an opportunity of meeting the accusations byestablishing his innocence. It is the outcome of cool deliberations and thescreening of the material by the informed man i.e. the Judge that leads todetermination of the lis.
26. The principal of proportion between crime and punishment is aprinciple of just desert that serves as the foundation of every criminalsentence that is justifiable. As a principle of criminal justice it is hardlyless familiar or less important than the principal that only the guiltyought to be punished. Indeed, the requirement that punishment not bedisproportionately great, which is a corollary of just desert, is dictated bythe same principle that does not allow punishment of the innocent, forany punishment in excess of what is deserved for the criminal conduct ispunishment without guilt.
27. The criminal law adheres in general to the principle ofproportionality in prescribing liability according to the culpability of eachkind of criminal conduct. It ordinarily allows some significant discretionto the Judge in arriving at a sentence in each case, presumably to permitsentences that reflect more subtle considerations of culpability that areraised by the special facts of each case. Punishment ought always to fitthe crime; yet in practice sentences are determined largely by otherconsiderations. Sometimes it is the correctional needs of the perpetratorthat are offered to justify a sentence; sometimes the desirability ofkeeping him out of circulation, and sometimes even the traffic results ofhis crime. Inevitably these considerations cause a departure from justdesert as the basis of punishment and create cases of apparent injusticethat are serious and widespread.
28. Proportion between crime and punishment is a goal respected inprinciple, and in spite of errant notions it remains a strong influence inthe determination of sentences. The practice of punishing all seriouscrimes with equal severity is now unknown in civilized societies; but sucha radical departure from the principle of proportionality has disappearedfrom the law only in recent times. Even now a single grave infraction thatis thought then to call for uniformly drastic measures. Anything less than apenalty of greatest severity for any serious crime is thought to be ameasure of toleration that is unwarranted and unwise. But in fact quiteapart from those considerations that make punishment unjustifiablewhen it is out of proportion to the crime. Uniformly disproportionatepunishment has some very undesirable practical consequences.
29. As the background facts go to show the genesis of dispute betweenthe accused and the other members of his family was land. Accusedseems to have taken exception to his father taking away the land fromhim. As the evidence indicates, he considered his brother, sister-in-law tobe responsible for the same. It is also in evidence that 2-3 days before theoccurrence, there was a bitter quarrel between the accused and othermembers of his family. Evidence of PW-7 is to the effect that there used tobe constant quarrel between PW-6, deceased Jai Bhagwan, deceased Sarojon one hand and the accused on the other, over ancestral land. It is alsoin evidence that the deceased Jai Bhagwan was not of moral characterand PW-6 had forcibly occupied the land of temple for which villagers hadset on fire a piece of their house. Though injuries on accused person donot per se affect prosecution version if reliable; when not explained itassumes importance if they are serious in nature. The fact that theinjuries were sustained in the present case by the accused is not disputed.In fact, PW-7 has admitted that PW-6 had given a thorough thrashing tothe accused in the court-yard after assaults on the three accused persons.As the medical evidence indicates, the injuries sustained by the accusedwere of very serious nature. It is true three lives have been lost. But atthe same time, the mental condition of the accused which led to theassault cannot be lost sight of. The same may not be relevant to judgeculpability. But is certainly a factor while considering question ofsentence. There is no evidence of any diabolic planning to commit thecrime, though cruel was the act. Deprived of his livelihood on account ofthe land being taken away, the accused was, as the evidence shows,exhibiting his displeasure, his resentment. Frequency of the quarrelsindicate lack of any sinister planning to take away lives of the deceased.The factual scenario gives impressions of impulsive act and not plannedassaults. In the peculiar background, death sentence would not beproper. A sentence of imprisonment for life will be more appropriate. Thesentence is accordingly modified, while confirming the conviction foroffence punishable under Section 302 IPC.
30. Appeal is allowed to the extent indicated above. We record ourappreciation for the assistance rendered by Mr. Vishal Malik who wasappointed as amicus curiae.