Dr. Ram Manohar Lohiya National Law University, Lucknow.

Academic Year- 2013-2014.

Case Comment: State of Punjab v. Major Singh

Submitted To: Mr.Kumar Askand Pandey Professor. RMLNLU .

Submitted By: Kartikey Kulshrestha 4th Semester (65) B.A.LL.B (Hons.) RMLNLU .

Title of the project

Case Comment: State of Punjab v. Major Singh.

Bench Strength

The bench in the present case is a full bench comprising three judges namely, A.K. Sarkar, C.J., J.R. Mudholkar and R.S. Bachawat, JJ.

Majority/ Minority

The honorable bench, by the virtue of being a division bench, could not have delivered a minority or majority opinion and hence, the judgment in the present case was a unanimous judgment.

Facts

The facts of the present case have been summarized in points below:

1. Smt. Roopa Devi (Prosecution Witness 3 ), wife of Neel Kumar alias Ajay Kumar who is also the appellant had gone to her parental home at village Kesri along with her 15 days old son leaving behind her two children i.e. Sanjana, her 4 years old daughter and Vishal, her 2 years old son, back at her matrimonial home in the care of her husband, Neel Kumar alias Ajay Kumar- Appellant, on 26th-June-2007. 2. She was supposed to return to her matrimonial home on the same day but she could return hence stayed at her paternal home. On the same day i.e. 26th-June-2007, she receives information from her brother-in-law Ramesh Kumar on telephone that her husband had committed rape upon her 4 years old daughter. On the next day i.e. on 27th-June-2007, she reaches her matrimonial home along with 5-7 people including her family members and neighbours and found her daughter Sanjana in an injured state. The matter was taken to the Panchayat which failed to reach any conclusion and hence, could not resolve the matter. Roopa Devi (PW.3) wished to take her daughter for medical help but her husband and his family members stop her from doing so and also attempt to take away her 15 days old son from her. She then returns to her paternal home, leaving behind her daughter and son in the custody of her husband, the appellant. 3. The next day i.e. 28th-June-2007 Roopa Devi (PW. 3) received a telephone call from her Brother-in-Law Ramesh Kumar and was informed that Appellant had murdered her daughter Sanjana. She came back to her matrimonial home along with her brother Gulla (PW.4) and lodged a report at Police Station, Bilaspur against the Appellant for committing rape on her 4 years old daughter, Sanjana on 26th-June-2007 and against her Brother-in-Laws and Appellant for murdering her on 26th/27th- June-2007 and concealing her dead body. Thus, a case is registered under Sections 376(2)(f), 302,201/34 Indian Penal Code vide FIR No. 91 dated 28th-June-2007 at Police Station Bilaspur (Haryana). 4. On the same day i.e. 28th-June-2007 Shri Narendra Singh, SDM,Jagadhari passed an order of exhumation of the dead body a after getting an application from the Investigation Officer, the

Deputy Commissioner, Yamuna Nagar. The dead body was recovered from the graveyard and the body was photographed and inquest report was prepared. The requisite plans of the occurrence of the incidence were prepared and the Appellant and his brothers were arrested on 30th-June-2007. The Appellant was medically examined and on his disclosure, one blood stained bed sheet and a gunny bag containing one Pajama, blood stained piece of cloth, pant, shirt and one pillow from a rainy culvert near Majaar of Peer on Kapal Mochan Road were recovered by the Investing Officer. 5. The case was brought in the Court of Sessions and the learned judge vide judgment and order dated 2nd-February-2009 acquitted the other co-accused except for the Appellant who was awarded death penalty under Sections 302, life imprisonment under Section 376(2)(f) and rigorous imprisonment for 3 years under Section 201 of Indian Penal Code. 6. The Appellant made a Criminal Appeal numbered 268-DB of 2009 in the High Court of Punjab and Haryana which was dismissed and order dated 17th July-2009 confirmed the death sentence. 7. And hence, the Appellant filed another Criminal Appeal numbered 523 of 2010 in the honorable Supreme Court of India which was disposed off on 7th-May-2012.

Law on the Point

Indian Penal Code 1860, (IPC) - Section 293AC. Indian Penal Code 1860, (IPC) - Section 354. Indian Penal Code 1860, (IPC) - Section 2.

Issues Involved

The main question of law faced by the court in the present case was whether the given facts and circumstances qualified as rarest of rare and required imposition of death penalty. Imposition of death penalty has been a long debated issue which was believed to have been resolved in the 1983 ruling of Supreme Court in Bachan Singh v State of Punjab. Justice R. S. Sarkaria stating the majority opinion on behalf of Y. V. Chandrachud, C.J., A. C. Gupta and N. L. Untwalia JJ. said that death penalty should not be awarded except in in the rarest of rare cases when the alternative option is unquestionably foreclosed.1 Even though this brought some order in the chaotic scenario related to the criterion of awarding death penalty but what exactly qualifies as rarest of rare still remains an abstract idea. Hence, dealing with the concept of rarest of rare in isolation causes inconsistent and non-uniform application. The application of this concept of rarest of rare came up for consideration in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767. On a review, it was concluded in paragraph 48 of the Report that there is a lack of evenness in the sentencing process. The rarest of rare principle has not been followed uniformly or consistently. Reference in this context was made to Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230 which referred to several earlier decisions to emphasis on the issue. What is Rarest of Rarest?

In Bachan Singh v State of Punjab, the apex court laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well recognized principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the Legislative Policy.2 In simpler words, the death penalty can be imposed only in most serious cases of extreme culpability. Paying heed to the principles with regard to the imposition of the extreme penalty it will be pertinent to note that there should be absolutely no mitigating circumstances. And the facts of the case should disclose only aggravating circumstances against the appellant. Another test that has been put to use to determine the warrant to impose death penalty is the balance sheet theory that was revived in the case of Machhi Singh and Ors. v State of Punjab disregarding

Bachan Singh v State of Punjab A.I.R. 1980 S.C. 898. Laxman Naik v. State of Orrisa 1994 SCC (3) 381.

the opposition of this principle in Bachan Singh case. This principle considers the following issues into consideration:

Aggravating circumstances - (Crime test) 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. 2. The offence was committed while the offender was engaged in the commission of nother serious offence. 3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. Hired killings. 6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. The offence was committed by a person while in lawful custody. 8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. When murder is committed for a motive which evidences total depravity and meanness. 12. When there is a cold blooded murder without provocation. 13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating Circumstances: (Criminal test)

1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. 2. The age of the accused is a relevant consideration but not a determinative factor by itself. 3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. 4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. 5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.

To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare. The balance sheet theory had an intrinsic flaw that it cannot be drawn up of two distinct and different constituents of an incident. The flaw was discovered first in a judgment delivered by the Supreme Court in 2008, but then it was too late as some death-row convicts. The vagueness and the lack of any statutory definition of the rarest of rare test have been clarified up to a certain extent by various judicial decisions. In Sangeet and Anr. v State of Haryana the court was of the opinion that the rarest of rare test depends upon the perception of the society that is the test is society centric and not Judge centric. It considers whether the society will approve the

awarding of death sentence or not. While applying this test, the Court has to weigh a number of factors like societys abhorrence, extreme exasperation and repugnance to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. The illustrations provided here are only illustrative and not exhaustive. D.P. Mohapatra J. pronouncing the judgment in Kishori v State of Delhi observed that:

It is, no doubt, true that the high ideals of the Constitution have to be borne in mind, but when normal life breaks down and groups of people go berserk losing balance of mind, he rationale that the ideals of the Constitution should be upheld or followed, may not appeal to them in such circumstances, nor can we expect such loose heterogeneous group of persons like a mob to be alive to such high ideals. Therefore, to import the ideas of idealism to a mob in such a situation may not be realistic. It is no doubt true that courts must be alive and in tune with the notions prevalent in the society and punishment imposed upon an accused must be commensurate with the heinousness of the crime. Thus, the Court while placing its reliance on rarest of rare test to determine the death sentence considers a variety of factors saving it from becoming a mechanical practice. The highlights of those factors include: (1) The cruel, diabolic, brutal, depraved and gruesome nature of the crime. (2) The crime results in public abhorrence, shocks the judicial conscience or the conscience of society. (3) The reformation or rehabilitation of the convict is not likely or that he would be a menace to society. (4) The victims were defenseless. (5) The crime was either unprovoked or that it was premeditated and the antecedents or the prior history of the convict was taken into consideration. The same has been iterated in a very recent judgment dated 25th-April-2013 in the case of Shankar Kisanrao Khade v State of Maharashtra where the Court was of the opinion that death penalty and its execution must not become matter of uncertainty nor must converting death sentence into imprisonment for life become matter of chance.

Decision on the Law Laid Down

Honorable Court, in this case, while concurring with the findings of the High Court and the Trial Court but differed on the point of the case being a rarest of rare where imposition of death penalty was warranted. The Court was of this view that considering the nature of offence, age and relationship of the victim with the Appellant and gravity of injuries caused to her, Appellant cannot be awarded a lenient punishment. Placing its reliance on Swami Shraddananda @ Murali Manohar Mishra v. State of Karnataka and Ramraj v. State of Chattisgarh and the principles used therein ,the Court commuted the death sentence ,which was confirmed by the High Court of Punjab and Haryana, to life imprisonment. The Appellant was, hence, convicted with a minimum of 30 years in jail without remissions before the pre-mature release is considered.

Critical Analysis

With all due respect to the bench which delivered the judgment in the present case, I beg to differ from the viewpoint that the facts and circumstances of the present case fail to qualify as rarest of rare and do not warrant the fastening of death penalty onto the Appellant. As discussed in the previously, the test of rarest of rare is a loose and imprecise test. It was only through the case laws that this test has been able to acquire a body and structure. The facts of this case are very clear and untouched by ambiguity. Not much careful scrutiny is required by any person to draw out the counters. The victim was a minor, a 4 year girl, who was sexually exploited and then murdered by the Appellant, who was not a stranger or someone whom the girl would have suspected to do her any harm, but her own biological father. The Supreme Court of the country in its dictum in Machhi Singh v State of Punjab has talked about taking the personality of the victim of murder into consideration for the application of rarest of rare cases and it also says that when the victim of murder is an innocent child who could not have or has not provided even an excuse much less a provocation for murder.3The guidelines also permit to treat case as rarest of rare cases if murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner. Anti-social or socially abhorrent nature of crime brings the case within rarest of rare cases. The question what is brutal, grotesque, diabolical or revolting enough to make the case fall in the category of rarest of rare is of immense subjectivity. In the present instance, the course of reasoning taken up by the Court is laudable and praiseworthy. Paying respect to the value of life of an individual, the court maintaining neutrality and unprejudiced stance weighed the all the relevant factors including the burden of proving the facts based on evidence by the prosecution while contemplating which the court took Prithipal Singh and Ors. v. State of Punjab and Anr., State of West Bengal v. Mir Mohammad Omar and Ors. and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai into consideration. Even though the Court was cautious in its approach, it is pertinent to note that the conclusion that followed was flawed. In other words, the reasoning and the logic put to work in the present case was precise and equitable but the denouement was awry and it was mired with what is called Ignoratio elenchi or the fallacy of wrong conclusion. 4

Rape is one of the few crimes which are met with extreme punishment of death penalty under Indian

3 4

Machhi Singh v State of Punjab 1983 SCR (3) 413. Charles L. Hamblin, Fallacies, London, Methuen, 1970.

Criminal law system. The reason for which is very clear and obvious. Rape is one of the most heinous crimes and imposition death penalty requires a the case to be of extreme nature which cannot be dealt with any other kind of punishment other than death sentence. Dishonorably, for imposition of death penalty in a rape case, the law requires the rape to have been committed in most contemptuous manner and should be rarest of rare. Contemplation on the whether the manner in which the rape is committed will be a shameful practice as rape, in itself, is extremely repulsive and heinous crime. It has been observed by the Apex Court "a murderer destroys the physical body of his victim; a rapist degrades the very soul of helpless female.5 Crime of such gravity per se warrants most strict punishment. The perception of what is rarest of rare should not be judge-centric but rather be society-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 societys abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls and the court award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people.6 The facts of this case divulge that the victim, Sanjana, a 4 years old girl is raped and then murdered by her own father, Neel Kumar. The severity and solemnity of the incident build gradually as the facts are more carefully analyzed. The victim was a totally helpless girl, who could by no reason, give the convict any sort of provocation, let alone be excuse, to commit rape on her. Father is someone on whom any child reposes his or her trust and relies on for their safety, protection and nurturing. When an innocent hapless girl of 4 years is subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. The relation between a father and a child is of immense sanctity. The very we exist in stands on the strong holds of such relations. They form the basic thread of the society and ensure its peaceful and orderly existence. The sentence of death is eminently desirable in such cases, not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's a abhorrence of such crimes. If such incidents are not met with felicitous punishment of death penalty, they would become a threat to the society that has developed over a long period of time to become civilizations out of chaotic primitive life.

5 6

State of Punjab v. Gurmit singh and Ors. 1966 S.C.C. 316 Gurvail Singh @ Gala & Anr. vs. State of Punjab, AIR 2013 SC 1177.

Another point that is germane at this juncture is that the manner and nature of the murder. If we rely on the facts of the case, the convict did not murder the victim instantly or even on the same day of committing the crime. It was only after the mother and other relatives were altered about the incident that he murdered the victim. The Court failed to take cognizance of this issue. The convict had no sense of repentance for the despicable act done. Murder was clearly not committed due to any sudden or grave provocation. It was a well thought and crafted killing done in an attempt to remove the live evidence of the loathsome crime committed by him. The society will lose its balance if the people like the convict forgetting righteousness, continue to murder their own children and dwell and infect the mainstream of social life with their already corrupt and rotten mindset.

Conclusion
I am of the opinion that even though the Court interpreted the law very aptly but it failed to apply the law to facts properly and hence, reached a wrong conclusion. According to my view, every such case should be handled with utmost strictness and care so that every such offender is awarded correct punishment which in this case, should have been death penalty. Deterrence should be high and no leniency should be show. Respect towards individuals life and the right to take away life should also be brought on the same pedestal but mere lack of aggravating factor or presence of a mitigating factor should not hold back the Court from serving the justice to the victim as well as the society because when an incident of such grave nature takes place, it is not only the person who has been victimized suffers but also it is the conscience of whole society that is harmed. Death penalty was the apt punishment that should have been awarded in this case so that the justice would have been done to the innocent and helpless victim and a strong enough deterrence is created and message reaches to all sections of society that such kinds of acts shall not be tolerated and if committed, shall be met with gravest of consequences.