PANDIT DAMODARDAS

LAW UNIVERSITY, ALIGARH

(SESSION 2016-2017)

SUBJECT: CRIMINAL LAW

CASE ANALYSIS:

MACHHI SINGH AND OTHERS

STATE OF PUNJAB

Under the supervision of: Submitted by:

Mr. Jay Prakash Sharma Mohammad Iqbad

Professor (Law) Roll Number - 58

Department of Legal Studies 3rd Year

 TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 1

PARTICULARS OF THE CASE .............................................................................................. 3

THE DOCTRINE OF RAREST OF RARE .............................................................................. 4

FACTS OF THE CASE ............................................................................................................. 6

ARGUMENTS ON BEHALF OF THE APPELLANTS .......................................................... 7

ARGUMENTS ON BEHALF OF THE RESPONDENTS ....................................................... 8

REASONING OF THE COURT ............................................................................................... 9

JUDGEMENT OF THE COURT ............................................................................................ 12

SUPREME COURT’S OUTLOOK ON DEATH SENTENCE .............................................. 13

CONCLUSION ........................................................................................................................ 15

BIBLIOGRAPHY .................................................................................................................... 16
 INTRODUCTION

Death penalty is a process that has been used to punish criminals by the State by taking away
their life following the due procedures of law. Capital punishment is given in only most heinous
of crimes. In recent times, there have been countries who have abolished death penalty such as
Italy, Hungary, Iceland, Mexico and United Kingdom. However, there are many countries
where it is still in application such as Egypt, Bangladesh, United States and India. The death
penalty is a unique form of punishment because of the nature of irreversibility attached to it. If
death penalty is wrongly awarded to a person then it cannot be undone after the person has
been executed.

Around the globe, 58 nations still work on granting the death penalty. 102 nations don't grant
the death penalty for any crime, i.e. total abolition. According to the reports of Amnesty
International China, Iraq, and Iran have granted most astounding number of capital
punishments in the current years. In Europe, out of all the fifty countries, only Belarus awards
the capital punishment.

Article 21 of the constitution states that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. Under Article 72, the constitution
has a provision mercy of capital punishment. Under this article, the President has the power to
grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute
the sentence of any person convicted. This also includes granting pardons, remit or commutes
in death sentences. Similarly Article 161 grants powers to the Governor of the State to grant
clemency.

There are numerous crimes mentioned in Indian Penal Code and other acts which reward death
penalty. Some of them are:

 Indian Penal Code, 1860

 Section 120 B (1) - Being party to a criminal conspiracy to commit an offence
punishable with death.
 Section 121 - Waging, or attempting to wage war, or abetting waging of war, against
the Government of India.
 Section 132 - Abetment of mutiny, if mutiny is committed in consequence thereof.

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  Section 194 - Giving or fabricating false evidence with intent to procure conviction of
capital offence.
 Section 302 – Punishment for Murder
 Section 305 – Abetment of suicide of child or insane person.
 Section 307 – Attempt to Murder
 Army Act, 1950
 Section 34 – Offences in relation to the enemy and punishable with death.
 Section 37 – Mutiny
 Section 38 – Desertion and aiding desertion.
 Unlawful Activities (Prevention) Act, 1967
 Section 10 (b) – Punishment for being member of an unlawful association.
 Section 16 (1) – Punishment for terrorist act.

In present day India, life imprisonment has become the rule, and death penalty an exception,
which is awarded only in rarest of rare cases. The Court first discussed the constitutionality of
death penalty in the case of Jagmohan Singh v State of U.P1 where the Court held that the law
does not provide any guidelines which considers different factors and circumstances while
awarding death penalty or life imprisonment.

Then again in the case of Bachan Singh v State of Punjab2, the question about the validity of
capital punishment was again taken to the court. The five judge Bench in this case propounded
the doctrine of “rarest of rare” and held that capital punishment should be given in cases where
no alternative method can be used. It also laid down the alleviating and aggravating factors that
should be considered before awarding the punishment.

The Hon’ble Supreme Court in the case of Machhi Singh v State of Punjab3 laid down broad
outlines of the circumstances when death sentence should be imposed.

1
Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 S.C.C. 20 (India).
2
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India).
3
Machhi Singh v. State of Punjab, (1983) 3 S.C.C. 470 (India).

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 PARTICULARS OF THE CASE

 Citation
AIR 1983 SC 957.
(1983) 3 SCC 470.
1983 SCR (3) 413.

 Heading of the Case

Machhi Singh and Others (Appellants) v State of Punjab (Respondent).

 Name of the Court

Supreme Court of India.

 Jurisdiction of the Court

Criminal Appellate Jurisdiction.

 Advocates on Behalf of the Appellants

R.L. Kohli and R.C. Kohli

 Advocates on behalf of the Respondent

Harbans Singh and D.D. Sharma

 Bench
Full Bench comprising of Justice Thakkar, Justice Fazal Ali, Justice Varadarajan.

 Date of Judgement
20 July, 1983.

 Issues
Categories of cases which may be regarded as “rarest of rare” and deserving death
penalty.

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 THE DOCTRINE OF RAREST OF RARE

The Hon’ble Supreme Court laid down the guidelines pertaining to death penalty which
emerged in the case of Bachan Singh v State of Punjab. The court laid down the following
guidelines for imposition of death sentence:

1. The extreme penalty of death need not be inflicted except in gravest cases of extreme
culpability.
2. Before opting for the death penalty, the circumstances of the ‘offender’ also require to be
taken into consideration along with the circumstances of the ‘crime’.
3. Life imprisonment is the rule and death sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to be altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided, and only provided,
the option to impose sentence of imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the crime and all the relevant
circumstances.
4. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances has to be accorded full weightage and a just balance
has to be struck between the aggravating and the mitigating circumstances before the
option is exercised.

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

1. When murder is committed in an extremely brutal, grotesque, diabolical, revolting, or

dastardly manner so as to arouse intense and extreme indignation of community.
2. When the murder is committed for a motive which evinces total depravity and meanness;
e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a
person vis-à-vis whom the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.
3. When murder of a member of a Scheduled Caste or minority community etc., is committed
not for personal reasons but in circumstances which arouse social wrath; or in cases of

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 “bride burning” or “dowry death” or when murder is committed in order to remarry for the
sake of extracting dowry once again or to marry another woman on account of infatuation.
4. When the crime is enormous in proportion. For instance, when multiple murders, say of
all or almost all the members of a family or a larger number of persons of a particular case,
community, or locality, are committed.
5. When the victim of murder is an innocent child, or a helpless woman or old or infirm
person or a person vis-à-vis whom the murderer is in a dominating position, or a public
figure generally loved and respected by the community.

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

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 FACTS OF THE CASE

The accused with a motive of restitution, committed 17 murders and three injuries in five
incidents occurring in the same night in quick succession in five neighbouring villages in
Punjab on the night between August 12 and August 13, 1977. The deceased and the ones who
sustained injuries in the course of these incidents included men, women and children all related
to one ‘A’ and his sister ‘P’ who were the appellants’ main opponents.

The victims were asleep in the night when the accused persons forcibly entered their respective
houses and fired gunshots and inflicted kripan (dagger) blows on them. The eye-witnesses
watched the respective incidents in lantern light, The Sessions Court, relying on the testimonty
of the witnesses as also the evidence regarding the recovery of guns, convicted all the accused
under Section 302 and sentenced four of them viz., Machhi Singh, Kashmir Singh, Jagir Singh
and Mohinder Singh, to death and the rest nine to life imprisonment.

The order of conviction and sentence gave rise to five murder references and 14 appeals by the
convicts before the High Court of Punjab & Haryana. The High Court heard every individual
separately but disposed of the group of appeal by a common judgement. The High Court
confirmed the conviction and sentence.

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 ARGUMENTS ON BEHALF OF THE APPELLANTS

The counsel on behalf of the appellant firstly pointed out that the most serious criticism in each
of the appeal is common. It was a dark night and electricity had not yet reached the concerned
village at the material time. In each crime, the witnessed identified the culprits as the appellants
on the fact-situation that a lighted lantern was hanging in the courtyard where the victims were
sleeping on the cots. The light shed by lantern cannot be considered to be sufficient enough to
enable the eye-witnesses to identify the culprits.

Counsel for the appellant next contended that the evidence pertaining to the recovery of the
rifle and evidence adduced by the prosecution in order to establish that one of the rifles used in
the course of occurrence was issued to appellant Machhi Singh in his capacity as an officer of
the Punjab Homeguards was not satisfactory and reliable. The signature in the register was
obtained by the police through coercion

The counsel for the appellant next contended that there is no evidence to show that the second
rifle used in this commission of the crime belonged to the appellant Mohinder Singh nor did
he fired the shot. The weapon and the ammunition was originally issued to Kashmir Singh by
Punjab Homeguards on October 16, 1974. There is no record to show that the rifle was returned
by him. Thus, the link between the weapon of offence and appellant Mohinder Singh is not
established. In fact, the evidence show that it was issued to Kashmir Singh three years before
the occourence.

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 ARGUMENTS ON BEHALF OF THE RESPONDENTS

The council on behalf of the respondents mentioned that even though there was a lantern
hanging in the courtyard, it can easily be considered to be sufficient source as the villagers in
the villages where electricity has not reached as yet, gets accustomed to seeing things in the
light shed by the lantern. Their eyesight get conditioned and becomes accustomed to the
situation. Their powers of seeing are therefore not diminished by the circumstance that the
incident is witnessed in the light shed by the lantern and not electric light. Moreover,
identification did not pose any serious problem as the accused were known to the witnesses.
As the culprits did not cover their faces to conceal their identity, it was not difficult to identify
them from facial features, built gait etc.

The evidence of Shri Yashpal, Platoon Commander of Punjab Homeguards, is supported by

the entry 32/A in the register relating to the issuance of arms and ammunations to volunteers
of the Homeguards. The evidence of Narinder Singh, Quarter Master of Punjab Homeguards,
conclusively establishes that the rifle was issued to appellant Machhi Singh. The signature in
the register was in fact of the appellant Machhi Singh and the appellant himself admitted that
the signature at 32/A was his signature.

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 REASONING OF THE COURT

At Crime Scene 1
The incident took place in the village Alahi Baksh Badla at about 8:30pm on 12 August, 1977.
The four victims were the wife and three sons of Amar Singh. Amar Singh and his 10 year old
daughter escaped the assault and survived to tell the tale of the ghastly murder in the court.

Evidence has been adduced to establish that one of the rifles used in the court of the murderous
assault had been issued to Machhi Singh in his capacity as an officer of Punjab Homeguards.
The evidence of the ballistic experts established that the said rifle had been recently used and
some of the empty cartridge were fired from this rifle. This evidence has been further
corroborated by the evidence pertaining to the recovery of the rifle at the instance of appellant
Machhi Singh which has been accepted by the Sessions Court and High Court. The Supreme
Court concluded that the rifle was issued to the appellant Machhi Singh in his capacity as a
member of the Punjab Homegaurds on February 12, 1977 and that the said rifle and the
ammunition had remained with the appellant Machhi Singh ever since. Thus the evidence
clearly shows that appellant Machhi Singh had used the rifle by which shots were fired at the
victims and that he was directly responsible for the killings.

The Court in its proceedings stated that there was no evidence which clearly suggested that the
second rifle used in the commission of crime was fired by the appellant Mohinder Singh. This
created a reasonable doubt in the eyes of the judges and he was thus awarded the benefit of
doubt.

At Crime Scene 2

This incident took place in the house of Kehar Singh at village Sowaya Rai at about 10pm on
12 August, 1977. Nine persons intruded the house of Kehar Singh and killed two inmates and
injured the third one by gunshots. From there they intruded into the house of Bishan Singh and
killed three inmates by firing rifle shots.

It was held in the Sessions Court and High Court that all the nine appellants had formed an
unlawful assembly with the common intention of committing murder of three people and guilty
of attempt to murder of Hakam Singh and Nankobai who sustained injuries by gunshots in the
course of these incidents.

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Nankobai was household inmate and her presence at the time of the offence was natural. Her
evidence establishes that the appellants were the persons who had intruded the house of Kehar
Singh and committed the murders. She was injured by rifle shots in the course of the incident
by appellant Kashmir Singh. Her evidence clearly suggests that she sustained injuries only after
the death of three members of the family. There existed no valid reason to not accept the
evidence provided by the eyewitness. Furthermore, there is evidence that on Bagicha Singh
(neighbour of Bishan Singh) came out of the house upon hearing the gunshots. He witnessed
the incidents and identified the appellants as the culprit.

Hakam Singh was himself chased by the culprits and sustained injuries. There existed no other
reason as to why the witness would identify the culprits as the appellants. The medical evidence
fully supports his testimony and establishes that he suffered gunshot injuries in the course of
the incident.

At Crime Scene 3

This incident took place in the house of Wanjar Singh at about 11pm on 12 August, 1977. Only
one inmate escaped out of three i.e. Sabban Singh, the wife of Wanjar Singh, who narrated the
entire incident. Five people intruded in her house with rifle and kripans. Appellant Machhi
Singh fired shots at Satnam Singh and killed him. Appellant Mohinder Singh fired two shots
at Wanjar Singh and killed him as well. The witness shouted for help upon which Machhi Singh
fired a shot at her which missed her. At dawn, she herself proceeded to policer station and
lodged an FIR.

Sabban Singh lost her husband and her grandson in the course of the incident and there is no
reason to believe that the witness would not be able to identify the real culprits. The culprits
were in a hurry as they did not wait to ascertain whether she was hit. Her evidence remained
unshaken. Evidence showed that the rifle was issued to Kashmir Singh on 16 October, 1974
and he was identified by the witness herself. The evidence that the rifle was taken back and
handed over to Mohinder Singh few days before the incident does not inspire confidence and
thus Mohinder Singh has the benefit of doubt

As per the evidences given by the witnesses, the finding of guilt recorded by the Sessions Court
and High Court has been confirmed and the Supreme Court took it into consideration as no
evidences proved otherwise.

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At Crime Scene 4

The incident occurred at village Kamrewala at around 1am on 13 August, 1977. Two people
were shot dead and FIR was lodged within an hour by Piaro Bai, the wife of one of the victims.
The witness stated that at about 1am someone fom outside the house shouted for her husband.
She woke up her husband and by the time he was up, five people intruded into their courtyard.
Only one of the five intruders (Machhi Singh) was known to her. Appellant Machhi Singh fired
a shot at her husband. The culprits thereafter left the house.

The presence of Piaro Bai in her own house is natural. She was unable to identify only Machhi
Singh and not the other four culprits. This shows that she was a conscious witness. The
evidence shows that the statement was recorded at 4am on 13 August, 1977. This evidence has
been rightly accepted by the Sessions Court and High Court insofar as appellant Machhi Singh
is concerned.

At Crime Scene 5

The incident took place at about 3:30am on 13 August, 1977 when five people intruded in the
house of Ujagar Singh at village Dandi Khur. They attacked the inmates and killed five inmates.
Out of these five victims, three died on the spot whereas two sustained injuries and died at the
hospital five days later. FIR was lodged within six hours of the incident by Ujagar Singh.

Mukhtiar Singh gave his statement two days before dying. His statement has been considered
to be genuine and true by Sessions Coourt and High Court. Even though the dying declaration
has not been recorded by the magistrate but the evidence shoes that he was making good
recovery and the statement given by him was in a conscious state.

It is clear that the finding of the guilt is fully supported by evidence.

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 JUDGEMENT OF THE COURT

In the case of Machhi Singh and Others v State of Punjab, the Supreme Court held that
A. That the order of conviction and sentence passed by the lower courts insofar as the
appellant Mohinder Singh is considered are set aside. He shall be set at liberty forwith
unless he is required to be detained in connection with some other offence or in connection
with some other orders authorizing his detention.
B. In regard to the rest of the appeals by the rest of the appellants the order of conviction and
sentence passed by the lower courts are confirmed and all the appeals shall stand
dismissed. The sentence of imprisonment under various counts and sentence imposed on
the concerned appellant in allied appeals will run concurrently.
C. The death sentence imposed on the appellants (i) Machhi Singh; (ii) Kashmir Singh; (iii)
Jagir Singh, having been confirmed, the sentence shall be executed in accordance with
law.
D. Death sentence has separately been imposed on appellant Machhi Singh in all matters. By
the very nature of the things the sentence will be deemed to have been executed in all the
cases if it is executed once.

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 SUPREME COURT’S OUTLOOK ON DEATH SENTENCE

The Supreme Court revised the doctrine of ‘rarest of rare’ in this case. The Court held that the
reason why the community as a whole does not endorse the humanistic approach reflected in
‘death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic
edifice is constructed on the foundation of ‘reverence for life’ principle. When killing another
member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has
to be realized the every member of the community is able to live with safety without his or her
own life being endangered because of the protective arm of the community and on account of
the rule pf law enforced by it. The very existence of the rule of law and the fear of being brought
to book operates as a deterrent to those who have no scruples in killing others if it suits their
ends.

It may do so ‘in the rarest of rare cases’ when its collective conscience is so shocked that it will
expect the holders of judicial powers centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death penalty. The community may
entertain such sentiment when the crime is viewed from the platform of the motive for, or the
manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as
for instance:

I. Manner of Commission of Murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or

dastardly manner so as to arouse intense and extreme indignation of the community. For
insance:

i. When the house of the victim is set aflame with the end in view to roast him alive in
the house.
ii. When the victim is subjected to inhuman acts of torture or cruelty in order to bring
about his or her death.
iii. When the body of the victim is cut into pieces or his body is dismembered in a fiendish
manner,
II. Motive for Commission of Murder

When the murder is committed for a motive which envinces total depravity and meanness. For
instance

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 i. When a hired assassin commits murder for the sake of money or reward.
ii. A cold-blodded murder is committed with the deliberate resign in order to inherit
property or to gain control over property of a ward or a person under the control of the
murderer or vis-à-vis whom the murderer is in a dominating position or in a position of
trust.
iii. When a murder is committed in the course for betrayal of the motherland.
III. Anti-Social or Socially Abhorrent Nature of the Crime
i. When murder of a member of Schedule Caste or minority community etc., is committed
not for personal reasons but in circumstances which arouse social wrath. For instance
when such a crime is committed in order to terrorize such persons or frighten them into
fleeing from a place or in order to deprive them of, or make them surrender, lands or
benefits conferred on them with a view to reverse past injustices and in order to restore
the social balance.
ii. In cases of ‘bride burning’ and what are known as ‘dowry death’ or when murder is
committed in order to remarry for the sake of extracting dowry once again or to marry
another woman on account on infatuation.
IV. Magnitude of Crime

When the crime is enormous in proportion. For instance when multiple murders say of all or
almost all the members of a family or a large number of persons of a particular case,
community, or locality, are committed.

V. Personality of victim of Murder

When the victim of murder is:

i. An innocent child who could not have been or has not been provided even an excuse,
much less a provocation, for murder
ii. A helpless woman or a person rendered helpless by old age or infirmity
iii. When the victim is a person vis-à-vis whom the murderer is in a position of domination
or trust
iv. When the victim is a public figure generally loved and respected by the community for
the services rendered by him and the murder is committed for political or similar reasons
other than personal reasons.

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 CONCLUSION

After the analysis of this case, it can be easily concluded that the very humanistic edifice is
constructed on the foundation of ‘reverence of life’ principle. When a member of a community
violates this principle by killing another member, the society may not feel itself bound by the
shackles of this doctrine. Also, it has to be realized that every member of the community is
able to live with safety without his or her own life being endangered because of the protective
arm of the community and on account of the rule of law enforced by it. The very existence of
rule of law and the tear of being brought to books operates as a deterrent to those who have no
scruples in killing others if it suits their ends,

Death penalty is given only in the ‘rarest of rare cases’ when the collective conscience is so
shocked that it will expect the holders of the judicial powers centre to inflict death penalty
irrespective of their personal opinion as regards desirability or otherwise of retaining death
penalty.

The doctrine of ‘rarest of rare’ case puts up certain criteria for imposition of death penalty and
unless these criteria are not fulfilled, the death penalty cannot be given to the culprit. It is only
when the manner of the commission of murder, the motive for commission of murder, the
abhorrent nature of the crime, the magnitude of the crime or the personality of victim of murder
is so horrendous and inhumane that death sentence is awarded as punishment. In cases where
none of the above mentioned criteria are fulfilled, the death sentence cannot be imposed and if
death sentence is awarded in such cases, it will be the violation of doctrine of ‘rarest of rare’
cases and would be considered a blot on the judiciary system as the life of the individual cannot
be brought back once the death sentence is carried out.

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 BIBLIOGRAPHY

Primary Sources

Statutes

Indian Penal Code, 1860.

The Constitution of India.

Secondary Sources

Books

Basu, Durga Das, Commentary on the Constitution of India Volume P, -Delhi.

Websites

<http://www.deathpenaltyindia.com/Crimes-Punishable-by-Death.jsp>

<https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=India>

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