Punjab-Haryana High Court
Sheela vs Brahamjit And Ors on 16 August, 2023
IOIN-CRA-D-101-DB-2014 in
CRA-D-101-DB-2014 and
IOIN-CRA-AD-30-2016 in
CRA-AD-30-2016
Sheela vs. Brahamjit and others
Present: Mr.Vishal Rattan Lamba, Advocate
for the appellant in CRA-D-101-DB-2014.
Mr. Ankur Mittal, Addl. Advocate General, Haryana with
Mr. Saurabh Mago, DAG, Haryana and
Ms. Kushaldeep K. Manchanda, Advocate
for the appellant in CRA-AD-30-2016.
Respondents No.1 and 6 since expired.
Convicts-respondents No.2 and 5 namely, Kanwar Singh and
Prabhati, respectively, along with their counsel
Mr .B.S.Saroha, Advocate.
Convicts-respondents No.3, 8 to 14, namely Vijay Pal, Braham Pal,
Braham Parkash, Dinesh, Harinder, Shiv Natha Singh, Jai Parkash and
Parmod, respectively, along with their counsel
Mr. Arnav Ghai, Advocate.
Convict-respondent No.4-Laxmi Narain along with his counsel
Mr. Rakesh Dhiman, Advocate.
Convict-respondent No.7-Sham Singh along with his counsel
Mr. Gaurav Singla, Advocate.
*****
Respondent No.2 (Kanwar Singh), respondent No.3 (Vijay Pal), respondent No.4 (Laxmi Narain), respondent No.5 (Prabhati), respondent No.7 (Sham Singh), respondent No.8 (Braham Pal), respondent No.9 (Braham Parkash), respondent No.10 (Dinesh), respondent No.11(Harinder), respondent No.12 (Shiv Nath Singh), respondent No.13 (Jai Parkash) and respondent No.14 (Parmod) as produced by SI Mohd. Haroon and duly identified by their respective counsel, are present in Court today.
OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh
IOIN-CRA-D-101-DB-2014 in -2- CRA-D-101-DB-2014 and connected case The convicts-respondents as named above have been held guilty and convicted for the commission of offences punishable under Sections 302, 201, 120B, 364 and 148 read with Section 149 IPC vide separate judgment.
All the afore-mentioned convicts/respondents along with their learned counsel, besides learned counsel for the complainant, Sheela and Sunita, respective widows of Harpal and Samey Pal, (i.e. two out of the four persons murdered), as well as learned State counsel were present on 11.08.2023 i.e. the day, when hearing was afforded on the quantum of sentence.
Submissions made by Mr. APS Deol, Senior Advocate on behalf of the complainant, learned counsel for the State, Mr. Vinod Ghai, Senior Advocate with Mr. B.S.Saroha, Advocate, for convicts-respondents No.2, 3, 5 and 8 to 14, Mr. Rakesh Dhiman, Advocate for respondent No.4 and Sh. Gaurav Singla, Advocate for respondent No.7, on the quantum of sentence were heard on 11.08.2023 and the matter kept for orders for today.
At the very outset, Mr. APS Deol, learned senior counsel for the complainant alongwith Mr. Ankur Mittal, learned State counsel had submitted that the present case calls for the extreme penalty prescribed by law. To so emphasize this submission, Sheela and Sunita widows of the murdered two persons, i.e. Harpal and Samey Pal, respectively, were present in the Court, who also made similar submissions and filed their respective affidavits, detailing the aggravating circumstances, calling for extreme penalty of death. Learned senior counsel for the complainant highlighted the aggravating circumstances including the previous conduct of convicts-respondents as well as their conduct post the crime committed, vis-a-vis, the case in hand. In this regard, learned counsel also made reference to the custody certificates of the respondents, brought on record. OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh
IOIN-CRA-D-101-DB-2014 in -3- CRA-D-101-DB-2014 and connected case Per contra, learned counsel for the convicts-respondents submitted that the present is not a case which falls in the category of 'rarest of rare' cases, calling for imposition of extreme penalty of death. Mr. Vinod Ghai, Senior Advocate had argued that firstly the present case is based on circumstantial evidence, rather than, absolute proof. Secondly, learned senior counsel referred to the mitigating factors, where for, the respondents deserve to be spared the capital sentence, these being of the crime having taken place, about 24 years back, when the respondents were quite young and more particularly, the time consumed, to reach this stage, while shuttling between verdicts of conviction, acquittal and again conviction and above all, it being the case of rivalry between two families or at the maximum, faction feud.
Apropos the rival submissions and the fact that it is either the sentence of death or imprisonment for life which has to be imposed, it necessarily calls for serious and heightened scrutiny of all the relevant aspects, in the backdrop of statutory requirements, as also legal principles enunciated by the Courts.
In the case of Bachan Singh v. State of Punjab, 1980 SCC 684, Constitutional Bench of the Hon'ble Supreme Court held that imposition of life imprisonment shall be the norm with penalty of death being the exception. The sentence of death can be imposed for special reasons to be recorded in writing.
"Special reasons" in the context of Section 354(3) Cr.P.C. would obviously mean "exceptional reasons", meaning thereby, that the extreme penalty should be imposed in extreme cases. It was further held that while considering the question of sentence to be imposed for the offence of murder under Section 302 IPC, the court must have regard to every relevant circumstance relating to the crime as well OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh IOIN-CRA-D-101-DB-2014 in -4- CRA-D-101-DB-2014 and connected case as the criminal and if the court finds, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence. This view was reiterated by the Hon'ble Supreme Court in Machhi Singh v. State of Punjab, 1984(2) RCR (Criminal) 412.
The various aggravating circumstances (crime test) and mitigating circumstances (criminal test) as well as rarest of rare case test have been concretized by the Hon'ble Supreme Court, which need not be reproduced herein, but are always a guiding factor. Peculiar facts and circumstances of each case have to be considered on its own merits.
Learned counsel for the convicts-respondents heavily relied upon the aspect of conviction based on circumstantial evidence. In this regard, suffice to note that as held by the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487 and subsequent decisions, it is required that the circumstances must not only be individually proved or established, but they must form a consistent chain, so conclusive, as to rule out the possibility of any other hypothesis, except the guilt of the accused. On the strength of these principles, the burden in such cases, is already of a greater magnitude. Once that burden is discharged and the accused is convicted, it is implicit that any other hypothesis or the innocence of the accused, already stands ruled out, when the matter is taken up, at the stage of sentence, after returning the finding of guilt.
In view of the same, the first submission, so made, stands negated. Now coming to the aggravating and mitigating circumstances, so put forth, learned State counsel and learned senior counsel appearing on behalf of the OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh IOIN-CRA-D-101-DB-2014 in -5- CRA-D-101-DB-2014 and connected case complainant's side, laid much emphasis upon eight persons of the family, having been eliminated by the convicts-respondents with four of them being lost in the incident in question. Learned counsel pointed out to the details, as given in paragraphs 3 and 4 of the affidavits of Sheela and Sunita and on the basis thereof, emphasized upon the number of FIRs, registered against the respondents-convicts and also alleged respondents-convicts to be hardcore criminals, who are involved in many other criminal cases.
On behalf of convict Laxmi Narain, it has been submitted by way of a hand-written note by learned counsel that age of Laxmi Narain is 53 years having unmarried two daughters who are students, besides, one son aged 17 years, who is also a student as well as an aged mother of 80 years. He is the only bread winner of the family and is not involved in any other criminal case.
Likewise, convicts Vijay Pal (49 years), Braham Pal (67 years) and Braham Parkash (67 years), have submitted details of their age at the time of incident as well as the number of children they have. Vijay Pal claims to have aged parents, dependent on him as well. Further, it is submitted that there is no case pending trial against them and they have never been convicted and are the only bread winners of their respective families.
Dinesh (aged 40 years) and Harinder (42 years) claim that they were only 17 and 21 years old, respectively, at the time of incident and now have dependent wives and children. Dinesh has a dependent aged father and Harinder an aged dependent mother.
Jai Parkash and Parmod both claim to be 50 years old with children of marriageable age and an aged dependent parent each. It was submitted that both OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh IOIN-CRA-D-101-DB-2014 in -6- CRA-D-101-DB-2014 and connected case of them are undergoing life imprisonment in FIR No.388 dated 14.04.2022 for murder of Risal Singh and are not involved in any criminal case thereafter.
It should be noted that subsequent to commission of the offence in the present case, Risal Singh, the complainant in this case had been murdered, regarding which FIR No.388 dated 14.04.2002, under Sections 120-B, 216, 302, 307, 34, 452 IPC and Section 25 of the Arms Act, Police Station Old Faridabad, Faridabad, was registered. At first instance, three accused therein were convicted, namely Jai Parkash, Parmod and Brahamjit. However, in appeal, one was acquitted i.e. Brahamjit, who has since died and other two accused namely Jai Parkash s/o Brahm Singh and Parmod s/o Jeet Ram, are undergoing sentence for life in this case, as per the custody certificates, coming on record.
The victim side was reiterated to be under constant threat to their lives, at the behest of convicts-respondents. Murder of the complainant in this case, i.e. Risal Singh, it was stated, had added to their constant fear.
Learned counsel for the convicts-respondents strenuously argued that the occurrence took place in December 1999 with the FIR being initially registered under Section 365 IPC. Fifteen (15) persons had been convicted by the learned trial Court in the said matter vide judgment and order dated 28.08.2005 with life imprisonment being awarded to ten and death penalty to five. After remand of the matter to the learned trial court by this High Court, all the accused were ultimately acquitted by the learned trial Court vide judgment dated 16.11.2013, which is the subject matter of the present appeals. Judgment of conviction in this case was passed on 29.01.2020 and the sentence is being passed in August, 2023. It is submitted that even though the delay may have occurred due to outbreak of OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh IOIN-CRA-D-101-DB-2014 in -7- CRA-D-101-DB-2014 and connected case pandemic COVID-19, it does provide mitigating circumstance to the convicts to pray for penalty other than maximum penalty. Till date, the convicts shuttled between the verdicts of conviction, acquittal and then conviction and thus, faced the specter of death, in rounds. Long incarceration, in this manner, had continued.
Otherwise also, it is submitted that in respect to the other cases of murder of family members of Risal Singh, complainant, though, trials were faced, but none of the accused were convicted, except with regard to FIR No.388 dated 14.04.2002, relating to the death of Risal Singh. Furthermore, no incident has taken place after the year 2002 to keep alive any apprehensions in the minds of the families of the victims.
It is further submitted that the present, at best, being a case of rivalry between two families or a feud between factions, coupled with the fact that no incident has taken place since the year 2002, it cannot be said that there are no chances of reformation and integration of the convicts in society. Thus, extreme penalty in this case is not called for.
It is a settled position that when nothing further exacerbates the crime in question, the Courts would refrain from awarding death sentence, even in cases of gruesome killings, essentially on the premise that even a semblance of probability of reformation of the convict and his integration in society, ought to be given a chance, rather than awarding capital punishment, which is of irretrievable nature. In this regard, but for the two convicts, undergoing jail term for the murder of Risal Singh complainant of this case, the conduct of the other convicts, carries its own bearing and relevance in the overall consideration.
Weighing the aggravating and mitigating circumstances, so submitted, OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh IOIN-CRA-D-101-DB-2014 in -8- CRA-D-101-DB-2014 and connected case this case does not meet the test of 'rarest of rare' case and we, unhesitatingly, so hold. In the given factual matrix, it is considered just and expedient to sentence the convicts to imprisonment for life.
However, in the case of convicts Jai Parkash and Parmod, who are undergoing life imprisonment for the murder of Risal Singh (complainant in this case) before he could even depose before the learned trial court, the ends of justice would be met if both of them are sentence to undergo imprisonment for the rest of their natural lives.
In this regard gainful reference can be made to judgment of the Hon'ble Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, 2008(3) RCR (Criminal) 772, wherein, such a course of action was considered and approved.
In the light of aforesaid observations, all convicts-respondents, namely, Kanwar Singh, Vijay Pal, Laxmi Narain, Prabhati, Sham Singh, Braham Pal, Braham Prakash, Dinesh, Harinder, Shiv Natha Singh, Jai Parkash and Parmod (except respondent No.1 - Brahamjit and respondent No.6
- Ishwar Singh, who have since expired) are sentenced as under:-
Sections Sentence
148 IPC To undergo rigorous imprisonment for a period of
three years and fine of Rs.10,000/- on each of them is
imposed, in default whereof, each defaulting convict- respondent shall undergo rigorous imprisonment for a period of one year.
120-B IPC To undergo rigorous imprisonment for a period of one year and fine of Rs.10,000/- on each of them is imposed, in default whereof, each defaulting convict-respondent shall undergo rigorous imprisonment for a period of three months.
OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh
IOIN-CRA-D-101-DB-2014 in -9- CRA-D-101-DB-2014 and connected case 201 IPC To undergo rigorous imprisonment for a period of seven years and fine of Rs.20,000/- on each of them is imposed, in default whereof, each defaulting convict- respondent shall undergo rigorous imprisonment for a period of two years.
364 IPC To undergo rigorous imprisonment for a period of ten years and fine of Rs.30,000/- on each of them is imposed, in default whereof, each defaulting convict-respondent shall undergo rigorous imprisonment for a period of three years 302 read with 149 IPC Convicts-respondents, namely, Kanwar Singh, Prabhati, Vijay Pal, Braham Pal, Braham Parkash, Dinesh, Harinder, Shiv Natha Singh, Laxmi Narain and Sham Singh, are sentenced to undergo imprisonment for life. Fine of Rs.30,000/- on each of the aforesaid convicts is imposed, in default whereof, each defaulting convict- respondent, shall undergo rigorous imprisonment for a period of four years.
Convicts-respondents, namely, Jai Parkash and Parmod (who are undergoing sentence, vis-a-vis, murder of Risal Singh), are sentenced to undergo imprisonment for life, till the remainder of their lives. Fine of Rs.30,000/- on each of the aforesaid convicts is imposed, in default whereof, the defaulting convict-respondent shall undergo rigorous imprisonment for a period of four years. All the sentences, as detailed aforesaid, shall run concurrently, vis-a- vis, each convict, to the extent of sentence(s), imposed upon him.
Keeping in view the circumstances of the case in hand, fine so imposed and recovered from the convicts shall be disbursed in equal proportion to the legal heirs of the victims, who fall within the definition of Section 8 of the Hindu Succession Act, 1956, read with the Schedule thereunder. Besides the same, said legal heirs of the victims, may seek compensation under Section 357(A) Cr.P.C.
IOIN-CRA-D-101-DB-2014 in CRA-D-101-DB-2014 and IOIN- OMKAR SINGH 2023.08.17 17:53 I attest to the accuracy and integrity of this document High Court, Chandigarh
IOIN-CRA-D-101-DB-2014 in -10- CRA-D-101-DB-2014 and connected case CRA-AD-30-2016 in CRA-AD-30-2016 as well as the appeals stand finally disposed of in the aforesaid terms.
Copy of the order as well as judgment be given free of cost to each of the convicts.
Photocopy of this order be placed in the file of connected case.
(LISA GILL) (ARCHANA PURI)
JUDGE JUDGE
August 16, 2023
'Vgulati'/'om'
OMKAR SINGH
2023.08.17 17:53
I attest to the accuracy and
integrity of this document
High Court, Chandigarh