Suresh Vs. State of U.P [1981] INSC 70
(17 March 1981)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) SEN, A.P. (J)
CITATION: 1981 AIR 1122 1981 SCR (3) 259 1981
SCC (2) 569 1981 SCALE (1)543
ACT:
Sentence of death-Whether death sentence is
called for has to be examined in each case with dispassionate care- Penal Code,
section 302.
Evidence-Trustworthiness of a witness, a
child of five years, examined without administering oath by reason of his lack
of understanding the sanctity of oath.
Conviction rested not on the evidence of sole
eye- witness, a child of five years of age but other corroborative evidence.
HEADNOTE:
The appellant, a starving youth was given
shelter by a kindly couple by engaging him as a domestic servant. The reward of
that kindness was the murder of the lady of the house and her three year old
son and causing serious injury to her five year old son. The appellant was,
therefore, charged and convicted under sections 302 and 307 of the Penal Code
and sentenced under section 307 to imprisonment and to death under section 302.
The High Court confirmed the death sentence and hence the appeal after
obtaining special leaves of the Court.
Maintaining the conviction under sections 302
and 307 I.P.C. and the sentence under the latter section, but modifying the
death sentence under section 302 to one of life imprisonment, the Court ^
HELD: 1. Altering the sentence of the
appellant to imprisonment for life for the offence under section 302 of the
Penal Code, while maintaining the sentence under section 307 Penal Code-the two
sentences to run concurrently- will meet the ends of justice, in the instant
case, under the following circumstances: [267A-B] (a) He was just about 21
years of age on the date of the offence and, very probably, a sudden impulse of
sex or theft made him momentarily insensible. (b) The evidence of Sunil shows
that immediately after the crime, he was found sitting in the chowk of the
house crying bitterly.(c) Having achieved his purpose, he did not even try to
run away, which he could easily have done since his injuries were not of such a
nature as to incapacitate him from fleeing from an inevitable arrest. (d)
Though he was not insane at the time of the offence in the sense that he did
not know the nature and consequences of what he was doing, still he was
somewhat unhinged. He was kept in a mental hospital from July 19, 1973 to
February 2, 1975 where he had shown aggressive symptoms and once even attacked
another patient. (e) The basic evidence in this case is of a child of five who
answered many vital questions with a nod of the head, one way 260 or the other.
The extreme sentence cannot seek its main support from evidence of this kind
which, even if true, is not safe enough to act upon for putting out a life. (f)
Non- availability of the useful data on the question of sentence which the
trial court proposed to pass due to the trial Judge's failure to ask the
appellant what he had to say on the question of sentence and (g) the appellant
has been in jail for ten long years and probably would have earned by now the
right to be released, after taking into account the remissions admissible to
him, were he sentenced to life imprisonment. [265 E-H, 266A, C-D, G]
2. The Trial Judge had a safe expedient in
section 235(2) of the Code of Criminal Procedure, 1973, which he needlessly
denied to himself on technical consideration that by reason of section 484(2)
(a) of the Code section 235 (2) did not apply to trials which were pending on
the date when the new Code came into force. The Trial Judge ought to have
questioned the appellant on the sentence, whether the letter of section 235(2)
governed the matter or not. That would have furnished to the court useful data
on the question of sentence which it proposed to pass. In any case, the trial would
not have been invalidated if the court were to apply the provisions of section
235 which were introduced into the Code, ex debito justiciae. [266 D-F]
3. A witness who, by reason of his immature
understanding was not administered oath and who was privileged, by reason of
his years, not to make his answers in an intelligible and coherent manner is
unsafe to be trusted whole sale. Children, in the first place, mix up what they
see with what they like to imagine to have seen and besides, a little tutoring
is inevitable in their case in order to lend coherence and consistency to their
disputed thoughts which tend to stray. [266 A-B, C] But, in the instant case,
there are unimpeachable and the most eloquent matters on the record which lend
an unfailing assurance that Sunil is a witness of truth, not a witness of
imagination as most children of that age are.
[263H,264A]
4. An assessment of the following
corroborative evidence, in the instant case, clearly indicate that it was the
appellant who committed the murder of Geeta and her son Anil and caused
injuries to Sunil: (a) the presence of the appellant proved by quite a large
number of injuries during the incident; (b) his conduct in not raising hue and
cry at least after the robbers had made good their escape, if any at the time
of the killing of the mistress of the house, but little while later, he quietly
walked to a neighbour and trotted out the story that a few Badmashes intruded
into the house and killed Geeta and her son; (c) the pattern of the crime, that
is, Anil was sleeping alongside his mother receiving an injury and getting
killed while the mother was assaulted and Sunil being assaulted in order that
he should not be left alive to identify the culprit, whom Sunil could easily
identify as he was a household servant engaged mainly to look after the two
boys: (d) the nature of injuries which were found on the person of the
appellant are typically of the kind which a woman in distress would cause while
defending herself, and cannot be by a Badmash but would otherwise deal with him
if indeed the Badmash wanted to put the appellant out of harm's way; (e) the
weapons with which Geeta was defending herself at different stages of her life
saving fight with the appellant were snatched by the appellant and he hit her
with those weapons, that is how similar injuries were found on the person of
the deceased and the appellant by the same two weapons. [264 A-H, 265 B- C] 261
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 281 of 1978.
Appeal by Special Leave from the Judgment and
Order dated 4.11.77 of the Allahabad High Court at Allahabad in Criminal Appeal
No. 1495 of 1977.
L. N. Gupta for the Appellants.
H. R. Bhardwaj and R. K. Bhatt for the
Respondent.
O. P. Rana for the Complainant.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. This is yet another case in which a young housewife has been
done to death by a trusted servant of the family. Her three-year old son was
murdered along with her and her five-year old son was seriously injured.
The incident occurred on May 6, 1971 at about
2.00 p.m. in House No. F-4/3, Kanoria Colony Quarters, Renukoot, where one
Mohan Lal Khetan used to live with his wife Geeta and two sons Anil and Sunil
aged three and five years respectively. Mohan Lal left for Allahabad for some
work on the morning of the 6th. His wife and children took their food at about
1.00 p.m. and while they were resting, with a cooler on, they were assaulted as
a result of which Geeta and Anil died and Sunil received serious injuries. The
only other person who was then present in the house was the appellant, who was
working as a household servant for a few years before the incident. His
presence in the house at the material time is beyond the pale of controversy
and indeed his very defence is that some intruders entered the house and caused
injuries to Geeta, her two sons and to he himself. The appellant received quite
some injuries in the incident which led to the death of Geeta and Anil.
Sunil, the five-year old son of Geeta, was examined
by the prosecution as the sole eye witness in the case and his evidence has
been accepted by the Sessions Court and the High Court. Shri L. N. Gupta, who
has argued the case on behalf of the appellant with admirable precision and
brevity, contends that no reliance should be placed on Sunil's evidence because
he is a young child of immature understanding, that no oath was administered to
him by reason of his lack of understanding of the sanctity of oath, that he did
not implicate the appellant for two days or so at least and that his 262
statement was recorded by the police about 20 days after the incident. Counsel
further argues that in the very nature of things, it would be impossible for a
young lad of 13 like the appellant to overpower, gag, assault and slay a well-
built woman of 30 that Geeta was. The motive of the offence, according the
Courts below, was to outrage the modesty of Geeta. It is urged that a boy of 13
could not possibly have entertained any such lewd thoughts. According to medical
evidence, the injuries on the person of Geeta and the appellant were partly
caused by a blunt weapon and partly by a sharp-edged weapon. That means that
two different kinds of weapons were used against both of them and, what is more
important, the same two weapons. According to counsel, that is more consistent
with a stranger or strangers attacking Geeta and the appellant than with the
appellant attacking Geeta. The appellant could not have attacked Geeta with two
different weapons and even if Geeta were to retaliate, she could not have
caused injuries to the appellant with the same two weapons. The final
submission is that the prosecution case is rendered suspicious because the
evidence of discovery of the iron rod, the knife, two gold bangles and the cash
at the instance of the appellant has been disbelieved by the Sessions Court and
the High Court.
We have given our anxious consideration to
these weighty considerations but on a close scrutiny of the evidence and the
circumstances of the case we find ourselves unable to differ from the Courts
below in regard to the assessment of the evidence in the case. Counsel is not
right in saying that the appellant was only thirteen years of age in May 1971.
It appears that the appellant gave his age as 13 during the committal
proceedings but the age so given cannot be accepted as correct merely because,
as counsel contends, the prosecution did not dispute the correctness of the
assertion made by the appellant. There was no assertion in regard to the
appellant's age and indeed it was not put in issue at any stage of the
proceedings. The point regarding the appellant's age is being raised for the
first time in this Court in the form and context in which it is raised by Shri
Gupta. The reference to the "tender age" of the appellant was made in
the Sessions Court on the question of sentence and not that of guilt, nor
indeed in the context that the nature of the offence is such that the appellant
could not have committed it, being just a boy of 13 or so.
It is not a matter of uncommon experience
that the age of an accused is mentioned in the committal proceedings without
proper inquiry or scrutiny since, in most cases, nothing turns on it. In fact
if the appellant 263 was only 13 years of age at the time of the offence, the Sessions
Court would not have failed to notice that fact and it would be amazing that
the appellant's advocates in the Courts below should not advert to it, though
the minutest contentions were raised in arguments and subtle suggestions were
made to prosecution witnesses in their cross- examination.
During the trial, the appellant was suspected
to be of a deranged mind and was for that reason sent to the mental hospital at
Varanasi. Exhibit K-20, which is the abstract of medical history maintained in
that hospital, shows that at the time of the appellant's admission to the
hospital on July 19, 1973 he was 23 years of age. The occurrence having taken
place in May 1971, the appellant would be about 21 years of age at the relevant
time. That is what the High Court has found while dealing with the question of
sentence when it was urged before it that the death sentence should not be
confirmed since the appellant was just 14 or 15 years of age on the date of
offence. We concur in view of the High Court on the question of the appellant's
age and agree with it that the age given by the appellant in the committal
Court and the Sessions Court was a random statement not based on any reliable
data.
We cannot accept that an able-bodied boy of
eighteen or nineteen could not have committed an assault of the present nature
for the motive alleged. But we might mention that we are not in entire
agreement with the Sessions Court and the High Court that the motive of the
offender was necessarily to outrage the modesty of Geeta. It is not possible to
record a positive finding that the motive necessarily was to commit theft or
robbery, but the nature of injuries on the person of Geeta does not fully bear
out the inference that the motive of the outrage was concerned with sex. There
was no injury at all on Geeta's private parts or anywhere nearabout, not even a
scratch or an abrasion. Most of the injuries were caused to her on the face and
head. It seems to us more probable that Geeta woke up while the almirah was
being ransacked and she paid the price of her courage. She resisted the robbery
and was therefore done to death.
Shri Gupta made a very plausible case against
the acceptance of the evidence of Sunil, the child witness. We must confess
that if the case were to rest solely on Sunil's uncorroborated testimony, we
might have found it difficult to sustain the appellant's conviction. But there
are unimpeachable and the most eloquent matters on the 264 record which lend an
unfailing assurance that Sunil is a witness of truth, not a witness of
imagination as most children of that age generally are. As we have stated
earlier, the presence of the appellant is undisputed and is indeed
indisputable. The appellant himself received quite a large number of injuries
during the incident, which proves his presence in the house at the relevant
time beyond the shadow of a doubt. If the appellant was present in the house at
the time when Geeta was assaulted, it becomes necessary to examine his conduct
without shifting the burden of proof on to him. If the mistress of the house
was killed by robbers, we should have thought that the appellant would raise a
hue and cry at least after the robbers had made good their escape. He did
nothing of the kind and a little while later, he quitely walked to a neighbour
and trotted out the story that a few "Badmashes" intruded into the
house and killed Geeta and her son.
Not only does the conduct of the appellant
corroborate the evidence of Sunil, but the very pattern of the crime
corroborates that it is the appellant who committed it. Anil was sleeping
alongside his mother and he seems to have received an injury while the mother
was assaulted. But Sunil was assaulted obviously in order that he should not be
left alive to identify the culprit. The culprit whom Sunil could easily
identify was the appellant who was a household servant engaged mainly to look
after the two boys. Total strangers, whom even the appellant could not identify
except as "Badmashes", would have no reason whatever to assault
Sunil.
The most important of the circumstances which
corroborates the evidence of Sunil is the nature of injuries which were found
on the person of the appellant. Those injuries are typically of the kind which
a woman in distress would cause while defending herself. There is a trail of
scratches and abrasions on the front portion of the appellant's body and it is
not without significance, as contended by Shri Bhardwaj who appears on behalf
of the State of U.P., that the injuries on Geeta are also all on the front
portion of her body. A 'Badmash' would not deal with the appellant with his
nails, if indeed he wanted to put the appellant out of harm's way.
There is one more argument which requires to
be dealt with, namely, that two different weapons and the same two weapons were
used against both Geeta and the appellant. We are not quite sure whether Geeta
had received an incised injury because, the injuries which were found on her
forehead can give the appearance 265 of incised injuries, if caused by an iron
rod. The skin just above a hard surface can break by a severe blow and give the
appearance of an incised injury. But even assuming that the same two weapons
were used on Geeta as also the appellant, it does not militate against the
commission of the crime by the appellant himself. It is clear from the evidence
of Dr. Guha and Dr. Sharma that all the injuries on the person of both Geeta
and the appellant were on the front portions of their respective bodies. It is
also clear that the injury which resulted in the death of Geeta as also her son
Anil was caused by the iron rod. We are inclined to the view that the weapons
with which Geeta was defending herself at different stages of her life-saving
fight with the appellant were snatched by the appellant and he hit her with
those weapons. That is how similar injuries were found on the person of both.
We, therefore, agree with the Sessions Court
and the High Court that it is the appellant who committed the murder of Geeta
and her son Anil and caused injuries to Sunil.
Crimes like the one before us cannot be
looked upon with equanimity because they tend to destroy one's faith in all
that is good in life. A starving youth was given shelter by a kindly couple.
The reward of that kindness is the murder of the woman and her child. We cannot
condemn adequately the utterly disgraceful and dastardly conduct of the
appellant. But all the same, the question as to whether the death sentence is
called for has to be examined in each case with dispassionate care. The
appellant was just about 21 years of age on the date of the offence and, very
probably, a sudden impulse of sex or theft made him momentarily insensible. The
evidence of Sunil shows that immediately after the crime, the appellant was
found sitting in the chowk of the house crying bitterly. Having achieved his
purpose he did not even try to run away, which he could easily have done since,
his injuries were not of such a nature as to incapacitate him from fleeing from
an inevitable arrest. It would also appear that though he was not insane at the
time of the offence in he sense that he did not know the nature and
consequences of what he was doing, still he was somewhat unhinged. He was
suspected to be insane during the trial and was kept in a mental hospital from
July 19, 1973 to February 2, 1975. He was eventually declared fit to stand his
trial but the evidence of Dr. R. N. Srivastava (P.W. 13), who was in charge of
the hospital and the notes (Exhibit Ka-20) of the hospital show that the
appellant had 266 shown aggressive symptoms and once, he had attacked another
patient. Coupled with these considerations is the fact that the basic evidence
in the case is of a child of five who answered many vital questions with a nod
of the head, one way or the other. A witness who, by reason of his immature
understanding, was not administered oath and who was privileged, by reason of
his years, not to make his answers in an intelligible and coherent manner is
unsafe to be trusted wholesale. We cannot also overlook, what Shri L. N. Gupta
highlighted, that Sunil's statement was recorded about 20 days later. There is
valid reason for the delay, namely, his state of mind (he was a witness to the
murder of his mother and an infant brother) and the state of his body (he was
gagged as a result of which his clavicle was fractured).
Children, in the first place, mix up what
they see with what they like to imagine to have seen and besides, a little
tutoring is inevitable in their case in order to lend coherence and consistency
to their disjointed thoughts which tend to stray. The extreme sentence cannot
seek its main support from evidence of this kind which, even if true, is not
safe enough to act upon for putting out a life.
The learned Sessions Judge did not ask the
appellant what he had to say on the question of sentence, holding that section
235 (2) of the Code of Criminal Procedure, 1973 did not, by reason of its
section 484 (2) (a), apply to trials which were pending on the date when the
new Code came into force. We wish that the Sessions Court had questioned the
appellant on the sentence, whether the letter of section 235(2) governed the
matter or not. That would have furnished to the Court useful data on the
question of sentence which it proposed to pass. In any case, the trial would
not have been invalidated if the Court were to apply the provisions of that
section which were introduced into the Code ex debito justiciae. The learned
Judge had before him a safe expedient, the benefit of which he needlessly
denied to himself on technical considerations.
Finally, the appellant has been in jail for
ten long years. He has probably earned by now the right to be released, after
taking into account the remissions admissible to him, were he sentenced to life
imprisonment.
We suppose, though we are not confident, that
some celebrity or the other must have visited the jail and large, wholesale
remissions from sentence must have been doled out to the prisoners in order to
commemorate the great and unusual event.
267 In the result, we confirm the order of
conviction but set aside the sentence of death imposed upon the appellant and
sentence him to imprisonment for life for the offence under section 302 of the
Penal Code. The sentence under section 307 will stand but the two sentences
will run concurrently.
S.R. Appeal partly allowed.
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