DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
2016-2017

INDIAN PENAL CODE- I

[FINAL DRAFT]
ON
“CASE COMMENT on STATE OF PUNJAB v MAJOR SINGH”
SUBMITTED FOR THE PROJECT WORK “UNDERTAKEN IN THE PARTIAL
FULFILLMENT OF B.A. LL.B. (HONS.) 5 YEARS INTEGRATED COURSE OF”
DR. RAM MANOHAR LOHIYA NLU, LUCKNOW.

UNDER THE GUIDANCE OF: SUBMITTED BY:

Dr. K.A. PANDEY MARGARET ROSE
Mr. MALAY PANDEY B.A LLB (Hons)
PROFESSOR (Criminal Law) ROLL NO. - 79
Dr. R.M.L.N.L.U., Lucknow SEMESTER 4th

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 ACKNOWLEDGMENT

Firstly, I would like to thank respected Dr. Kumar Askand Pandey & Mr. Malay Pandey “for giving
me such a golden opportunity to show my skills and capability through this project. This project is the
result of the extensive ultrapure study, hard work and labour, put into to make it worth reading”. “It is
my pleasure to be indebted to various people, who directly or indirectly contributed in the development
of this work and who influenced my thinking, behaviour, and acts during the course of study. Lastly, I
would like to thank the almighty and my parents for their moral support and my friends with
whom I shared my day-to-day experience and received lots of suggestions that improved my
quality of work”.

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 TABLE OF CONTENTS

 Details of the case………………………………………………………..{4}

 Facts of the case………………………………………………………….{4}
 Issues involved ………………………………………………………......{6}
 Aggravating circumstances………………………………………………{7}
 Mitigating circumstances…………………………………………………{8}
 Decision on the law laid down……………………………………………{10}
 Critical Analysis…………………………………………………………..{11}
 Conclusion………………………………………………………………...{14}
 Bibliography……………………………………………………………….{15}

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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:

 “Smt. Roopa Devi (Prosecution Witness 3 ), wife of Neel Kumar 1"nom de plume Ajay Kumar
who is additionally the litigant had gone to her parental home at town 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.
 She was supposed to return to her matrimonial home on the same day but she could not 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.”

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  The next day i.e. 28th-June-2007 Roopa Devi (PW. 3) received 2"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 28 th-
June-2007 at Police Station Bilaspur (Haryana).
 “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.
1. 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.
2. 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.”
3. 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.

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Law on the Point

“Indian Penal Code 1860, (IPC) - Section 323.

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.”3 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

3
Bachan Singh v State of Punjab A.I.R. 1980 S.C. 898.”

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recognized principles, after balancing all the aggravating and mitigating circumstances of the crime
guided by the Legislative Policy.4
“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
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.

4
Laxman Naik v. State of Orrisa 1994 SCC (3) 381.

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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

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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 society’s 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.

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(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.

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 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.5The 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

5
Machhi Singh v State of Punjab 1983 SCR (3) 413.

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 precise and equitable but the denouement was awry and it was mired with what is called “Ignoratio
elenchi” or the fallacy of wrong conclusion. 6

Rape is one of the few crimes which are met with extreme punishment of death penalty under Indian
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”.7 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 society’s 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.8”

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

6
Charles L. Hamblin, Fallacies, London, Methuen, 1970.
7
State of Punjab v. Gurmit singh and Ors. 1966 S.C.C. 316
8
Gurvail Singh @ Gala & Anr. vs. State of Punjab, AIR 2013 SC 1177.

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 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.
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.

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 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 shown. Respect towards individual’s 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.

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 Bibliography

 https://indiankanoon.org/doc/960519
 https://www.scribd.com/document/177705180/Case-study-State-of-punjab-v-Major-singh
 http://www.lawyerservices.in/State-of-Punjab-Versus-Major-Singh-1966-04-28
 http://www.lawyersclubindia.com/articles/OUTRAGING-THE-MODESTY-OF-WOMEN-
597.asp

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