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PETITIONER: ASHARFI LAL & SONS

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT30/03/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 AIR 1721            1987 SCR  (2) 722  1987 SCC  (3) 224        JT 1987 (2)   595  1987 SCALE  (1)766

ACT: Indian Penal Code:     Section    302--Murder--Cold-Blooded-Extremely   brutal- Shocks judicial conscience--Sentence of death  confirmed--As measure  of social necessity and deterrence to other  poten- tial offenders. Criminal Trial:     Sentence--Duty  of Court--Impose proper  punishment--De- pending  upon  degree  of criminality  and  desirability  to impose such punishment.

HEADNOTE:     The  prosecution  alleged that in order to  wreak  their vengeance on account of long drawn litigation in respect  of certain agricultural property between P.W. 1 and the  appel- lants--two  real brothers and their three sons,  the  appel- lants  effected entry on the night of 13/14-8-1984 into  the courtyard  of the adjoining house where P.W. 1 and  her  two daughters.  were  sleeping and brutally attacked  them  with gandasas  and a banka. The younger daughter  was  repeatedly struck with a gandasa and her neck was severed, as a  result of which she died instantaneously, while the other  daughter was  struck on the neck and face with a banka and her  right hand was chopped off with the gandasa, and she died later in the  hospital. P.W. 1 was struck on the face and upper  part of the body with the gandasa. She ran from the house through the  village abadi and narrated the incident to P.W. 2  who, in turn, informed P.W. 5, the Village Pradhan. After  visit- ing  the scene of offence, P.W. 3 filed a First  Information Report.     The  appellants  were tried and the  two  brothers  were convicted under Section 302 of the Indian Penal Code on  two counts  of murder and were awarded capital punishment  while the other three appellants were convicted under Section  302 read with Section 149 of Indian Penal Code and sentenced  to life  imprisonment. All the appellants were  also  convicted under Section 148 of the Indian Penal Code. 723     The  High Court, affirming the conviction and  sentences awarded to the two brothers, observed that it was  satisfied that  this was one of the ’rarest of the rare  cases’  where

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death penalty was the only appropriate sentence which  ought to be imposed on them. Dismissing the appeal, this Court     HELD:  1.1 It is the duty of the Court to impose  proper punishment  depending  upon the degree  of  criminality  and desirability to impose such punishment. [726B]     1.2 The punishment must fit the crime. The present cases were cold-blooded brutal murders in which two innocent girls lost  their  lives.  The extreme brutality  with  which  the appellants  acted shocks the judicial conscience.  The  only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they  had with  regard  to property with their mother is  nothing  but death. [725H; 726B-C]     1.3 Failure to impose death sentence in such grave cases where  it  is a crime against the  society--particularly  in cases  of  murders committed with  extreme  brutality,  will bring  to naught the sentence of death provided  by  Section 302 of the Indian Penal Code. [726A-B]     1.4 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed. [726C]     1.5  The two appellants were guilty of a  heinous  crime out of greed and personal vengeance and deserve the  extreme penalty.  This  case falls within the test--’rarest  of  the rare cases’--as laid down by this Court. [725G-H]     Bachan  Singh  v. State of Punjab, [1980]  SCC  684  and Machhi Singh v. State of Punjab, [1983] SCC 470 referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 169 of 1987.     From  the  Judgment  and Order dated  11.8.1986  of  the Allahabad High Court in Criminal Appeals No. 583, 892-896 of 1985 and Capital Reference No. 2 of 1985. 724 Shakeel Ahmad for the Appellants. The Judgment of the Court was delivered by     SEN,  J.  Appellants Asharfi Lal and Babu who  are  real brothers,  are under sentence of death on  their  conviction under s. 302 read with s. 149 of the Indian Penal Code, 1860 for having committed the brutal murders of their two  nieces Kumari  Sumati, aged 14 years and Kumari Kalkanta,  aged  20 years, daughters of their pre-deceased paternal cousin,  and under  s. 307 read with s. 149 of the Indian Penal Code  for having attempted to commit the murder of Smt. Bulakan, widow of Devi, and sentenced to undergo rigorous ’imprisonment for 7  years. The remaining appellants Ganga Prasad and  Hemraj, two  sons of Asharfi Lal, and Mata Badal, son of Babu,  have been  convicted under s. 302 read with s. 149 of the  Indian Penal Code for having committed the two murders in  further- ance  of  the common object of their unlawful  assembly  and each of them sentenced to life imprisonment. They have  also been convicted under s. 148 for the attempted murder of Smt. Bulakan.  There was long drawn litigation between  the  Smt. Bulakan  on the one hand and the appellants on the other  in respect  of certain agricultural property. The last  of  the series of the litigation was a proceeding initiated under s. 145 of the Code of Criminal Procedure, 1973 on a report made by  Smt.  Bulakan,  P.W. 1. To wreak  their  vengeance,  the appellants  effected  an entry on the night  between  August 13/14, 1984 into the courtyard of the adjoining house  where

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the three ladies were sleeping on three different cots.  The testimony  of  Smt. Bulakan, P.W. 1 shows that she  woke  up hearing  the shrieks of her younger daughter  Kumari  Sumati and  found  that appellant Mata Badal was perched  over  the lower  part of the body of Kumari Sumati pressing  down  her legs  while  appellant  Babu repeatedly struck  her  with  a gandasa and severed her neck. The girl died almost instanta- neously;  her head hung down the cot partially  attached  to the neck. Smt. Bulakan further deposes that appellant Ashar- fi Lal struck her other daughter Kumari Kalkanta on the neck and face with a banka while appellant Hemra chopped off  the right hand of the girl with a gandasa. She also shrieked and appellant Ganga Prasad struck her on the face and upper part of  the body with a gandasa. She ran from her house  through the  village abadi and fell down near the house of  Kandhai, P.W.  2, which was some 30-40 paces away. She  narrated  the incident  to Kandhai who immediately ran and informed  Bhag- wati Prasad Pandey, P.W. 3 who resided some 200 paces  away. The Village Pradhan Bhagwati Prasad Pandey, P.W. 3  accompa- nied  by some of the villagers arrived at the house of  Smt. Bulakan and saw the 725 deceased  Kumari  Sumati lying dead on the  cot  and  Kumari Kalkanta  lying  unconscious in a pool of blood  on  another cot. She subsequently died in the hospital.     Learned counsel for the appellants made no endeavour  to challenge  the conviction of the appellants for having  com- mitted  various offences with which they were  charged,  and rightly  so. The conviction of the appellants rests  on  the unimpeachable and truthful evidence of Smt. Bulakan who  was herself the victim of the murderous assault, as  conoborated by P.W. 2 Kandhai and P.W. 3 Bhagwati Prasad Pandey. She  is a  natural witness and has given a vivid description of  the entire  incident  resulting in the gruesome  deaths  of  her daughters  Kumari Sumati and Kumari Kalkanta. It  is  estab- lished in evidence that immediately after the occurrence she named all the assailants. The first information report (Exh. Ka  1) lodged by Bhagwati Prasad Pandcy P.W. 3, the  Village Pradhan,  contains  the  names of the  assailants.  The  1st Additional  Sessions  Judge, Barabanki by his  judgment  and sentence dated August 23, 1985 convicted the two  appellants Asharfi  Lal and Babu under s. 302 of the Indian Penal  Code on two counts of murder and awarded them capital punishment. He  also  convicted  Ganga Prasad and Hemraj,  two  sons  of Asharfi Lal, and Mata Badal, son of Babu, under s. 302  read with  s.  149  and sentenced each of them  to  undergo  life imprisonment.  All the appellants have also  been  convicted under s. 148 of the Indian Penal Code. The High Court by its judgment dated August 11, 1986 on a careful consideration of the evidence has agreed with the learned Additional Sessions Judge and confirmed the conviction and sentences awarded  to the  appellants. In affirming the sentence of death  imposed on  the two appellants Asharfi Lal and Babu, the High  Court observed  that  on  a careful consideration  of  the  entire material,  the  facts and circumstances and  the  applicable law, it was satisfied that this was one of the rarest of the rare  cases  where  death penalty is  the  only  appropriate sentence which ought to be imposed on them.     We have heard learned counsel for the appellants  mainly on  the question of sentence but we are not  impressed  with his submission. The two appellants Asharfi Lal and Babu were guilty  of  a heinous crime out of greed and  personal  ven- geance  and  deserve the extreme penalty.  This  case  fails within  the test ’rarest of the rare cases’ as laid down  by this  Court in Bachan Singh v. State of Punjab,  [1980]  SCC

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648 as elaborated in the later case of Machhi Singh v. State of  Punjab,  [1983] 3 SCC 470. The punishment must  fit  the crime.  These were cold-blooded brutal murders in which  two innocent girls lost their 726 lives. The extreme brutality with which the appellants acted shocks  the judicial conscience. Failure to impose  a  death sentence in such grave cases where it is a crime against the society---particularly  in cases of murders  committed  with extreme  brutality--will  bring to naught  the  sentence  of death provided by s. 302 of the Indian Penal Code. It is the duty  of the Court to impose a proper  punishment  depending upon  the degree of criminality and desirability  to  impose such  punishment. The only punishment which  the  appellants deserve for having committed the reprehensible and  gruesome murders  of the two innocent girls to wreak  their  personal vengeance over the dispute they had with regard to  property with  their mother Smt. Bulakan is nothing but death.  As  a measure of social necessity and also as a means of deterring other  potential offenders the sentence of death on the  two appellants Asharfi Lal and Babu is confirmed. The appeal is dismissed accordingly. N.P.V.                                          Appeal  dis- missed. 727