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PETITIONER: PANCHHI AND OTHERS, NATIONAL COMMISSION FOR WOMEN

       Vs.

RESPONDENT: STATE OF UP AND OTHERS

DATE OF JUDGMENT:       19/08/1998

BENCH: K.T. THOMAS, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                             With             Writ Petition (Crl.) No. 50 of 1998                       J U D G M E N T Thomas J.      Bad 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. Death 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.      Facts 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. This quadruple murder took place during the forenoon of 26th October, 1989 , inside and outside the house of the victims.      According 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.      Further story  of the  prosecution is,  on the  date of occurrence all  the  assailants,  armed  with  weapons  like

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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. But the  bid failed  as the  assailants rushed out and dealt deadly blows  with weapons on the vital parts of their body. After 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 Court.      It 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 was stayed.      We 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.      There 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 matter.      Prosecution 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 weapons. PW5 also gave evidence almost in the same line as PW3 said.      As pointed  out above,  the trial  court and  the  High

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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.      Shri 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.      Courts 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.      PW3 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.      The 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 for life.      When  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

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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:      " A  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:      "Where 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 sentence:      " The 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:      " The appellants were the next door      neighbours of the deceased persons.      They 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

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    leneiency or  mercy by  the  Court.      The    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. Brutality 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.      The  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.      We are  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.               The appeals are disposed of accordingly.               The Writ Petition is dismissed.