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PETITIONER: RAJA RAM YADAV AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       11/04/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 AIR 1613            JT 1996 (4)   140  1996 SCALE  (3)430

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N. RAY, J.      Leave granted.      Heard learned  counsel for  the parties.  These appeals arise out  of three  special leave  petitions filed by eight convicted accused  each  of  whom  has  been  awarded  death sentence. In  the Special Leave Petitions, notice was issued limited only  to the  question of sentence to be suffered by the said  eight convicted  appellants namely  (1)  Raja  Ram Yadav son of Chintaman Yadav (2) Babu Ram Yadav son of Jathu Yadav (3)  Keswar Yadav alias Ram Keswar Yadav son of Narain Yadav (4)  Jag Narain Yadav son of Jattu Yadav (5) Chintaman Yadav son  of Vilas  Yadav (6) Branamded Yadav son of Moheri Yadav (7)  Chander Deep  Yadav son of Jattu Yadav and (8)Ram Pravesh Yadav son of Narain Yadav.      The   learned   fourth   Additional   Sessions   Judge. Aurangabad  by   his  judgment   dated  September  30,  1992 convicted Ram  Pravesh Yadav, Keswar Yadav, Jag Narain Yadav Chandradeep Yadav,  Chintaman Yadav  and Brahamdeo Yadav for the offence  of murder  and awarded  death sentence  against them. They  were also convicted under Section 148 IPC but no separate sentence  was passed for such offence. All the said eight accused  were further convicted under Section 436 read with Section  149 IPC  but no  separate sentence was awarded for such  conviction  in  view  of  death  sentence  awarded against them.      The said  convicted accused  filed  two  appeals  being Criminal Appeal  No. 460  and 461  of 1992  before the  High Court  of  Patna  impugning  the  order  of  conviction  and sentence passed  by the  learned Additional  Sessions Judge, Aurangabad. The  said appeals  and Death  Reference No. 9 of 1992 for  confirmation of death sentence awarded against the said eight  convicted accused  were disposed of by the Patna High Court  by a  common judgment  dated 7.12.1995. The High Court upheld  the  conviction  of  Jainarayan  Yadav  (A-4),

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Chintaman Yadav  (A-5) and  Ram Pravesh  Yadav  (A-8)  under Section 302  IPC and  also upheld  the conviction of Rajaram Yadav under Section 302/34 IPC. But the conviction of Keswar Yadav (A-3), Brahamdeo Yadav (A-6) and Chandradeep Yadav (A- 7) under  Section 302  IPC was converted to conviction under Section 302  read with  Section 34  IPC. The High Court also upheld the conviction f the appellants under Section 148 and 436/149 IPC  and under  Section 302/149  IPC but no separate sentence was  passed for  such conviction.  The  High  Court upheld the  death sentence  awarded against each of the said eight convicted accused by accepting the Death Reference.      Initially  the   appellants  sent  an  application  for special leave  from jail  being S.L.P. (Crl.) No.323 of 1996 and Sri  S. S.  Khanduja, learned advocate, was appointed as amicus curiae.  Later on,  the appellants  preferred  S.L.P. (Crl.) No.  432 of  1996 and S.L.P. (Crl.) No. 3434 of 1996. Mr. Rajendra Singh, the learned senior advocate, appeared in the appeal  arising out of S.L.P. (Crl.) 452 of 1996 and Mr. K.G. Kannabniran,  learned senior advocate, appeared for the appellants in  the appeal  arising out  of S.L.P. (Crl.) No. 3434 of  1996. Mr.  Udai Sinha, learned senior advocate, has appeared for the State in all the appeals.      Mr. Rajendra  Singh has submitted that since  the scope of the  appeals is  only limited to the question of sentence to be  suffered by  the  appellants,  he  will  confine  his arguments only  on the  question of  sentence on the footing that the  order of  conviction passed  against the appellant stands upheld by this Court. Mr. Singh has submitted that in the instant case, the appellants have been convicted for the offence of murdering Gaya Singh; Sita Ram Singh, the wife of Sita Ram  Singh, Giranti  Kumar, Renu  Kumar; Ritu Kumar and Gaya Prasad.  The appellants  have also been convicted under Section 436 read with Section 148 Indian Penal Code but they have been  acquitted for  the offence under Section 120 B of the IPC.  Mr. Singh  has submitted that 74 persons faced the trial before the Additional Sessions Judge in Sessions Trial No. 180 of 1987 (1 of 1988), in connection with the incident which had  occurred at  about 1  A.M. of  30th May  1987  at Village   Baghora,   Police   Station   Madanpur,   District Aurangabad. Twenty  six persons  including  6  women  and  9 children were  murdered and  few house  in the  said village were reduced  to ashes.  Out of  26 persons  murdered in the said incident,  25 belonged  to one community and 20 of them also belonged to the same family. As the charges against the remaining accused  excepting  the  eight  convicted  accused could  not  be  established  beyond  reasonable  doubt,  the learned Additional Sessions Judge acquitted the said accused but convicted the 8 appellants for the offence murdering the aforesaid six persons and also for the offence under Section 436 read  with Section 149 IPC. Mr. Singh has submitted that the said  incident in  which 26  persons were  murdered  and number of  houses were  reduced to  ashes by setting them on fire was  undoubtedly a very shocking incident and extremely ismertable.      But the  conviction of the appellants has been based on the basis  of eye  witness account  of a  boy aged  about  9 years, namely.  PW 3  Shailendra. According  to PW 3, at the time of  incident he  hid himself  near a Kotha and from the place of hiding, he had witnessed the murder of the said six persons, namely,  his  father,  mother,  three  sisters  and uncle. Mr.  Singh has  submitted that in the case of a child witness, extreme  care and  caution are required to be taken before  accepting  the  deposition  of  such  child  witness because it is not unlikely that a child after witnessing the murder of one or two very close relations, is likely to lose

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the normal  frame of  mino and  composure and thereafter may not be in a position to note subsequent events carefully and depose about  the same convincingly. Mr. Singh has submitted that unfortunately  in this  case no  other eye  witness  is available in  support of  the prosecution  case and both the learned Additional  Sessions Judge  and the  High Court have relied on  the testimony  of the  child witness,  PW  3.  He further submitted  that according  to PW.1,  the said  child witness shortly  after the  incident ran to him and on being asked by  him mentioned  the names of Ram Pravesh, Raja Ram, Chintaman and  Sranmdeo as  the persons who had murdered the said six persons. PW 3 did not state before PW1 the names of Keshav Yadav,  Jag Narain,  Babu Ram and Chandra Deep as the persons who  has also  committed  the  murder  of  said  six persons. PW  3, however,  deposed before  the Court that all the said  appellants were responsible for murdering the said six persons  and also  indicated the  role played by each of them but in view of his omission to mention the names of the said four  persons as  the assailants  in the  commission of said murder,  the said  four accused  deserve  to  be  dealt leniently in the matter of awarding capital sentence.      Mr. Singh  has also  urged that  none of the appellants was a  hired assassin or professional murderer but they were ordinary family  members with  no past  criminal history. It has also  transpired from the deposition that the said crime was committed  in order  to avenge  a carnage  involving the kith and kin of the appellants. According to the prosecution case there has been a carnage in village Chnechnani near the village Baghora.  The said incident of carnage in Chnechnani had taken  place only  about a  1 1/2 months earlier. In the incident at  Chnechnani, the  Rajputs had  killed the Yadava and the  prosecution has  come out  with  a  case  that  the incident of  murder concerning  the  present  appeal  was  a consequence of  retaliation by  the Yadavs  by  killing  the Rajputs. In the aforesaid circumstances, the strong urge for revenge because  of the trauma suffered by the appellants on account of  carnage in the village Chnechnani where the kitn and kin  of the appellants were brutally murdered should not be lost  sight of  as on  account of  such carnage  and such trauma, they  had lost  the normal  frame of mind and became mad to  avenge such killings. Such fact should also be taker into account  as an  important mitigating factor in awarding the extreme penalty of death.      Mr.  Singh   has  also   submitted  that  some  of  the appellants are  quite young. They are not hardened criminal. There is  a fair  chance of their being reformed in the jail and to  turn out  as a  responsible and useful number of the society. In  the aforesaid  circumstances,  they  should  be given a chance to remorse and get reformed after serving the term of imprisonment.      Mr. Kannaohiran  has also  made similar submissions and has submitted  that PW  3, the  said child  witness, was not examined immediately  after  the  incident  but  he  made  a statement before  the police  only on  30th May.  It is  not unlikely that  in view  of such  delay, he  might  have  got confused and  having heard  the names  of the  accused  from others failed  to give  true account  of the  incident. Such possibility therefore  should be  considered as a mitigating factor in  the matter  of awarding  death sentence  in  this case.      Mr. Khahguja  the learned  advocate appearing as amicus curiae in  the appeal  arising out  of SLP  (Crl.) No.323 of 1996 has  also made  similar  submissions  as  made  by  Mr. Rajendra  Singh   and  Mr.   Kannabhiran.  Mr.  Udai  Sinha, appearing for  the State  of Bihar,  in all  the appeals has

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however submitted  that the  evidence of  a child witness is not required  to be rejected per se but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on  being convinced  about the quality of such evidence and its  reliability, bases  the conviction by accepting the deposition of  the child  witness. In  the instant case, the said witness  fortunately could  hid himself  in a kotha and got the  opportunity to  see the  murder of all the said six persons one  after another from a close quarter. There is no manner of  doubt that  the said  child had  suffered a great trauma. But it cannot be reasonably contended that he failed to see  how and  by whom  the murders had been committed. He has given  a clear  and  straight  forward  account  of  the murders of  all the  said six  persons in detail and has not been shaken  even by the long cross examination undergone by him. Considering  the quality  of  evidence,  there  was  no difficulty either  for the learned Additional Sessions Judge or for  the High  Court to accept the deposition of the said child  witness  as  fully  convincing  and  to  convict  the appellants  for   the  aforesaid  offences.  Mr.  Sinha  has submitted that  the said  acts of murder and arson were pre- planned and  the same had been committed to take revenge for an unfortunate  incident happened in the village Chnechnani. In the  incident which  had happened in the village Baghora, out of  26 persons  killed, 25 belonged to one community. It is quite  apparent that the appellants and the co-accused in a planned  manner with  pre-meditation picked  up persons of one community  only and  just butchered  them in  a gruesome manner although  such victims  were innocent  and did not do any harm  to the  appellants and  the co-accused.  The  only fault of  the innocent  victims was  that they belonged to a particular  community.   So  far   as  the   appellants  are concerned, they  not only  killed both the mother and father of the  said PW3  but even  his uncle  and three sisters had been butchered  in a  very cruel  manner. The  sisters  were innocent and  did not  play any  role  in  the  incident  of Chnechnani village.  The appellants  did not spare even such innocent children  and in  a cool and calculated manner just wiped out  the entire  family  of  PW  3  Shailendra  Kumar. Providence  has  saved  Shailendra  Kumar  only  because  he managed to  hide  and  was  therefore  not  noticed  by  the assailants.      Both the learned Additional Sessions Judge and the High Court have  considered in detail the gravity of the offences committed by  the appellants and the barbarid acts committed by them  in  a  cool  and  calculated  manner  with  extreme brutality. On  such consideration,  the extreme  penalty  of death against  all the  appellants  was  awarded  indicating cogent reasons.  Mr.  Sinha  has  submitted  that  the  said incident of  murder of the six persons is undoubtedly one of the rarest  of rare cases which cannot but send a shock wave to the  entire society. It is because of extreme cruelty and brutality with  which the murders of six persons in a family including  children   had  been  committed  in  a  cool  and calculated manner  to wide  out all  the members of a family only because  they belonged  to Rajput  community, the crime has assumed an unprecedented magnitude making it a rarest of rare cases warranting death sentence. If for such crime, the extreme penalty  is not  given, the  very  purpose  of  such extreme penalty  will lose  its  relevance.  Mr.  Sinha  has submitted that  the society  at large  is pained and snocked and it  also cries  for justice from the Court. Such cry for justice will be defeated if a lenient view is taken in these appeals.      After giving our anxious consideration to the facts and

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circumstances of  the case  and also to the submissions made by the  learned counsel  for the  parties, it  appears to us that incident  which had happened at the early hours of 30th May, 1987  in the  village Baghora is extremely shocking and we only  wish that  there may  not  be  repetition  of  such incident. There is no manner of doubt that such gruesome and cruel incident  cannot but  send a  wave  of  shock  to  the society at large.      In  Bachan  Singh’s  case  (1980(2)  SCC  cage  684)  a Constitution  Bench   of  this   Court  has   indicated  the aggravating  circumstances  in  committing  the  offence  of murder. It has been also indicated in the said decision that the Court  should also  take  into  account  the  mitigating circumstances, while  noting the  aggravating  circumstances for awarding appropriate sentence. In Machhi Singh Vs. State of Punjab  (1983 (3)  SCC 470)  a three  Judge Bench of this Court has  noted  the  synthesis  which  emerged  in  Bachan Singh’s case  that in  cases where  there  is  no  proof  of extreme culpability,  the extreme penalty need not be given. The extreme  penalty of death may be given only in rarest of rare cases where aggravating circumstances are such that the extreme penalty meets the ends of justice. Having considered the guidelines  indicated in  Bachan Singh’s case, the three Judge Bench  in Machhi  Singh’s case  has observed  that the guidelines  will  have  to  be  applied  in  the  facts  and circumstances of  the individual case where the question for imposing the death sentence may arise.      In this  connection, it will be appropriate to refer to a decision  of this  Court in  Suresh Vs. State of U.P. (AIR 1981 SC  1122). In the said case, the sole eye witness was a five year old son of the deceased. But the deposition of the child witness  was held to be convincing and reliable. After noting the  mitigating factors  in   favour of  the accused, Chandracnud.C.J., speaking for the Court, has also indicated that it  will not be safe to impose extreme penalty of death in conviction  based on  the deposition  of a  child. It has been observed that the extreme sentence cannot seek its main support from  the evidence  of a child witness and it is not safe enough  to act  upon such deposition, even if true, for putting out a life.      After keeping  in mind  the relevant considerations for awarding  the   extreme  penalty   of  death   and  also  on considering the  fact that in the instant case, the sole eye witness did  not tell,  according to PW 1, the names of four of the appellants we feel that although the murders had been committed in  a pre-meditated  and  calculated  manner  with extreme cruelty  and prutality,  for which normally sentence of death  will be  wholly justified, in the special facts of the case, it will not be proper to award extreme sentence of death on the appellants.      Hence, we commute the death sentence to the sentence of life imprisonment  to be  suffered by each of the appellants for the  offence of  murder. No separate sentence was passed against the  appellants for  the offence  under Section  436 read with  Section 149  IPC and  Section 148  IPC in view of awarding the  sentence of  death. Since we have commuted the sentence of  death to  that of  life imprisonment,  we award sentence of six years rigorous imprisonment against  each of the appellants  for the  offence under Section 436 read with Section 149  IPC. In  addition to  such sentences,  we  also impose a  composite fine  of Rs.15,000/- against each of the appellants for  the offences  under Section 302 and 436 read with Section  149 IPC.  In default  of payment of such fine, each  of   the  appellant   will  suffer   further  rigorous imprisonment  for  three  years.  No  separate  sentence  is

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imposed for the offence under Section 148 IPC. It is further directed that  the sentence  of life  imprisonment  for  the offence of  murder and  the sentence  of six  years rigorous imprisonment for  the offence  under Section  436 read  with Section 149  IPC will  run consecutively.  If the said fines are realized,  the same  should be  paid to  PW 3 Shailendra Kumar who,  not only  became an  orphan, but  also lost  his sisters and uncle, besides his hearth and home being reduced to ashes.      The appeals are accordingly disposed of.