& Ors, National Commission for Women Vs. State of U.P. & Ors  INSC
423 (19 August 1998)
Thomas, Syed Shah Mohammed Quadri Thomas J.
Writ Petition (Crl.) No. 50 of 1998
blood which existed between two families living next door to each other
resulted in the extermination of all the adult members of one family and the
consequent judicial verdict to sent all the living members of the other family
to gallows. Four members of the family of the accused became killers of four
members of the other family irrespective of gender differences on both sides. A
glimpse at the injuries on the mangled dead bodies would have convinced the on
lookers that non among the victims could have been saved even with most
advanced sophisticated medical facilities.
of all of them would have been instantaneous. Such injuries clearly reflected
the resolve of the killers that every one of the victims should have been
snuffed out of their worldly existence.
are too brief for claboration. The house were all the accused were living is
situate adjacent to the house where all the deceased were living first
appellant Panchhi and his wife Kalia were the parents of second appellant Manmohan
and their appellant Smt. Ramshree. Among the victims deceased Banke Lal was the
husband of deceased Pan Kunwar, his mother Halki was aged 70 and a little
female child Sonu aged only 5 then was the daughter of Banke Lal.
quadruple murder took place during the forenoon of 26th October, 1989 , inside and outside the house of the victims.
to the prosecution story, the two families were on a warpath for some time and
the members of both families chose to indulge in petty quarrels. bad blood
started fomenting up. A fortnight prior to the incident two female members of
accused family (Kalia and Ramshree ) gave a rubbing to Pan Kunwar. Though the
matter was reported to the police there was no abatement of the hostility
between the two families. So Banke Lal and Pan Kunwar retaliated to Ramshree by
assaulting her just six days prior to the occurrence.
story of the prosecution is, on the date of occurrence all the assailants,
armed with weapons like kulhari and hansia, bargod into the house of the
deceased at about 10.30 am and unleashed a killing spree. First target was Banke
Lal, on seeing the plight of her son his mother Halki instinctively leaned to
protect him but one of the assailants swished a that weapon on her neck and
finished her. Pan Kunwar, wife of Banke Lal, made a bid to escape and she
jumped out of the house with her little daughter Sonu.
the bid failed as the assailants rushed out and dealt deadly blows with weapons
on the vital parts of their body.
accomplishing their target they retreated to their house. Kalia could not face
the trial as she died before its commencement. The remaining three appellants
were tried for the murders of the deceased. Trial court and the High Court
concurrently found that the four deceased were murdered by the four assailants
who are appellants and Kalia. Both the courts held the view that in the brutal
nature of the perpetration of the murders extreme penalty should be imposed and
hence the trial court sentenced them to death which was affirmed by the High
seems, there was initially no move to approach this Court for some time after
pronouncement of the judgment by the High Court in appeal. But the print media
flashed the news that Ramshree (mother of the suckling child) was facing
execution of the capital sentence. Some organisations came forward taking up
her cause. However, in the meanwhile appellants filed the special leave
petition and leave was granted by this Court. Execution of the death sentence
heard Shri RK Jain, learned Senior Advocate who appeared for the appellant and Shri
RB Malhotra, learned Senior Advocate for the State of UP. Smt Indira Jaising, Senior Advocate prayed for
allowing National Commission for Women to intervene presumably to bolster up
the cause that Ramshree must be saved from gallows. We could not permit the
move for intervention in this appeal of the obvious reason that under the Code
of Criminal procedure National Commission of Women or any other organisation
cannot have locus standi in this murder case.
cannot any dispute, nor has it been disputed before us, that the four deceased
were brutally murdered inside their house on the forenoon of 26.10.1989. The
only area where the dispute was focussed related to the identify of the
assailants, as the appellants have totally denied their involvement in the
examined PW 1(Ramkhelawan s/o Bankelal) who was child witness. He has stated
that while he was taking lunch around 1 am
all the four accused entered his house and killed his father and grandmother
inside the house and the assailants killed his mother and sister who were out
on the Chabutara. Just when the incident started PW 1 Ramkhelawan slipped out
of house and hid himself in a house of one of the closest neighbours. Besides
that witness, prosecution examined PW3 Lakahnlal and PW5 Shambhu Dayal as
witness to the occurrence. According to PW3, he saw the four accused entering
the house of the deceased armed with weapons and he saw them while he was
standing on the verandah of a barber shop situated very near to the place of
occurrence. He heard tantrums of victims from inside the house of occurrence
When he neared the Chauraha (junction ) which was located very close, he saw
Pan Kuwar and Sonu who were standing outside their house, and within a few
second the four assailants emerged out of the house and killed them with the
also gave evidence almost in the same line as PW3 said.
pointed out above, the trial court and the High Court placed reliance on the
evidence of the aforesaid three witnesses and reached the conclusion that the
murders were committed by the three appellants an Kalia.
RK Jain, learned Senior Counsel, contended that it is very risky to place
reliance on the evidence of PW1 being a child witness. According to the learned
counsel, evidence of a child witness is generally unworthy credence. Bu we do
not subscribe to the view that the evidence of a child witness would always
stand irretrievable stigmatized. It is not the law that if a witness is a child
his evidence shall be rejected, even if it is a found reliable. The law is that
evidence of a child witness must be evaluated more carefully and with greater
circumspection because a child is susceptible to be swayed by what others toll
them and thus a child witness is an easy prey to tutoring.
have laid down that evidence of a child witness must find adequate
corroboration before it is relied on. It is more a rule of practical wisdom
than of law [vide Prakash and another vs. State of Madhya Pradesh, [ 1992 (4) SCC 225]; Baby Kandayanathi
vs. State of Bihar [AIR 1996 SC 1613] and Dattu Ramrao
Sakhare and others vs. State of Maharashtra [1997 (5) SCC 341].
PW 1 Ramkhelawan
is one of the two survivors in the family (the other was a suckling child). It
is greatly probable that PW1 would have escaped form the notice of the
assailants otherwise he would not have been spared as is clear from the fact
that his younger sister Sonu was also murdered. His narration of the incident
was quite natural though he saw only some part of the occurrence. That part is
so decisive as to clear all doubts regarding identity of the assailants.
and PW5 were admittedly neighbours. The fact that they did not see all what
happened inside the house of the decease d is no reason to take their evidence
lightly because when he saw all the appellants sitting inside the house
variously armed and they also saw that all of them returning from the house
after the incident with blood soaked weapons we have no doubt that the High
Court has rightly concurred with the findings of the trial court regarding
reliability of the testimony of the above three witnesses. There is no scope to
contended that there was any serious error in the appreciation of the evidence.
The resultant position is that none of the appellants can escape conviction
under Section 302/34 of the Indian Code.
trial court and the High Court chose death penalty for the appellants Shri RK
Jain made a fervent plea that imposition of the extreme penalty as for all the
accused was not legally justified in this case. According to him, death penalty
awarded to the three persons one a septuagenarian, another a youth in his prime
age, and the third a mother with a suckling chills is unwarranted since this
case did not project any special feature as distinguished form other brutal
murder cases in spite of the number of victims being for including a child.
Learned counsel contended that the number of victims is not sufficient to make
the case so special as to foreclose the next alternative sentence i.e. imprisonment
the Constitution Bench of this Court, by a majority, upheld the constitutional
validity of death sentence in Bachan Singh vs. State of Punjab [1980 92) SCC
684] this Court took particular care to say that death sentence shall not
normally be awarded for the offence of murder and that it must be confined to
the rarest of rare cases when the alternative option is foreclosed. In other
words, the Constitution Bachan did not find death sentence valid in all cases
except in the aforesaid freaks wherein the lessor sentence would be, by any
account, wholly inadequate. In Machhi Singh and others vs. State of Punjab
[1983 (3) SCC 470] a three judge bench of this court while following the ratio
in Bachan Singh's case laid down certain. guidelines among which the following
is relevant in the present case:
balance-sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have 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 Allauddin Mian and
others vs. State of Bihar [1989 (3) SCC 5] ( Ahmadi j. as he then was speaking
for the Bench has stressed the need that the judge should indicate The basis upon
which he considers sentence of that extreme magnitude justified. It has been
observed in the decision that:
a sentence of severity is imposed, it is imperative that the judge should
indicate the basis upon which he considers a sentenced of that magnitude
justified. Unless there are special reasons. Special to the facts of the
particular case, which can be catalogued as justifying a severe punishment the judge
would not award the death sentence." As for the present case the trial
Court advanced the following reasons in justification of the award of death
accused were not satisfied by causing two or four injuries and they made 27
attacks by axes and daranti. The man when turns a beast from a human being even
then there must be a limit of his revenge but in this case there remained no
limit of revenge and four brutal murders were committed in the broad day light.
This act of the accused was against the normal conduct of the man. Hence in my
opinion it would be proper that the accused be awarded the death penalty."
While concurring with the above conclusion learned judges of the High court of
Allahabad have set down the following reasons:
appellants were the next door neighbours of the deceased persons.
should have lived like good neighbours, but all the for persons took Kulhari
and Hansiya, went inside the house of Bankey Lal and butchered all the for
persons one by one. We have seen the injury reports and it is apparent that all
the four persons had been butchered like goat. The persons who have become so
cruel do not deserve any leneiency or mercy by the Court.
attack was deliberate, calculated and the appellants fully know what they were
doing." We have extracted the above reasons of the two courts only to
point out that it is the savagery or brutal manner in which the killer
perpetrated the acts on the victims including one little child, which has
persuaded the two courts to choose death sentence to four persons. No doubt
brutally looms large in the murders in this case particularly of the old and
also the tender aged child. It may be that the manner in which the killings
were perpetrated may not by itself show any lighter side, but that is not very
peculiar or very special in those killings.
of the manner in which a murder was perpetrated may be a ground but not the
sole criterion for judging whether the case is one of the " rarest of rare
cases" as indicated in Bachan Singh's case in a way every murder is
brutal, and the difference between the one from the other may be on account of
mitigating or aggravating features surrounding the murder.
incidents which happened on earlier occasions between members of the two rival
families are indicative of the intensity of the bitterness which prevailed
between them. It was thirst for retaliation which became the motivating factor.
Attacks and counter-attacks between them were frequent events during the
preceding days. There is evidence that six days before this occurrence two
elderly persons of the deceased family (Banke Lal and Pan Kuwar) attacked the
young female member of the accused family (Ramshree). The brutality with which
the murders were committed by The assailants which include two ladies makes us
to think that more skirmishes would have happened prior to the incident which
would have escalated the simmering thirst for vengeance to each boiling point.
persuaded to consider that this case cannot be treated as one of the
"rarest of rare cases" where the lessor sentence is not at all
adequate. Hence we alter the sentence of death penalty by awarding the sentence
of imprisonment for life to each of the appellants.
appeals are disposed of accordingly.
Writ Petition is dismissed.