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PETITIONER: SURESH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT17/03/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: 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 leave 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

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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

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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

JUDGMENT:      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

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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

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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

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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).

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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. 268