ASHARFI LAL & SONS versus STATE OF U.P.

ASHARFl LAL & SONS

v. STATE OF U.P. MARCH 30, 1987

[A.P. SEN AND V. BALAKRISHNA ERADI JJ.]

Indian Penal Code:

Section 302-Murde,.....Cold-11/ooded-Extremely brutal~-Shocks judicial conscience-Sentence of death confirmed-As measure of social necessity and deterrence to other potential offenders.

Criminal Trial:

sentence-Duty of Court-Impose proper punishment-Depend-ing upon degree of criminality and desirability to impose such punishment.

The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural pro-petty between P.W. 1 and the appellants-two real brothers and their three sons, the appellants 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 ancl II banka. The younger daughter was repeatedly struck with gandasa and her neck was severed, as result of which she died instantaneously, while the other daughter was struck on the neck and face with banka and her right halid 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 villag;, abadi and narrated Ute Incident to P. W. 2 who, in turn, informed P. W. S, the VIiiage Pradhan. After visiting the scene of offence, P. W. 3 filed 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 4Code and sentenced to life imprisonment. All the appellants were also convicted under Section 148 of the Indian Penal Code.

The High Court, affirming the conviction and sentences awarded to the two brothers, observed that it was s11tisfied that this was one of the 'rarest of the rare cases' where de11th penalty was the only appropriate sentence which ought to he Imposed on them.

Dismissing the appeal, this Court

HELD: 1.1 It is the duty uf the Cuurt tu impose proper punish· ment depl'udl11g upo11 the degree of criminality a11d deslr11billty to Impose such p1mlshment. (726BJ

1.2 The punishment must flt the crime, The present cases were cold·hlO(lded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants 11cted shocks the Judi· clal col!Sclence. The only punishment which the appellants deserve for 1l11Ving cpmmltted tile reprebel!Sible and 11ruesome lllurders of two innocent girls to wreak their personal vengeance uver the dispute they llad with regard to pr11perty with their m11tller Is nothing hut de11tll, (725H; 726B-C)

1,3 Failure to impose depth sentence in such grave cases where it Is crime against the society-particularly in cases of murders commit· ted with extreme brutality, will bring to naught tile sentence of death pr11vided by Se!!ti11n 302 of the lndi1111 Penal Code. (726A·B)

1.4 ,\s measure of social necessity a11d also as means of deter· ring otller potential offenders the sentence of death on the two appel· lants is c11nfirmed, (726C) ·

1.5 Tile two appellants were guilty ofa hel1111us crime out of greed and personal venge11nce and deserve the extreme penalty. This case falls within the test~'rarest ol' the rare cases'-as laid down by this Court. (72SG-H)

Bachan Singh v, State of Punjab, (1980] SCC 684 and Machhi Singh v. State of Punjab, (1983) SCC 470 referred to,

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. 2of1985.

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 withs. 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 furtherance 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 proceeding initiated under s. 145 of the Code of Criminal Procedure, 1973 on report made by Smt. Bulakan, P.W. 1. To wreak their ven-E geance, the appellants effected an entry on the night between August 13/14, 1984 into the courtyard of the adjoining house where 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 gandasa and severed her neck. The girl died almost instantane-ously; her head hung down the cot partially attached to the neck. Smt. Bulakan further deposes that appellant Asharfi Lal struck her other daughter Kumari Kalkanta on the neck and face with banka while appellant Hemra chopped off the right hand of the girl with gandasa. She also shrieked and appellant Ganga Prasad struck her on the face and upper part of the body with 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 Bhagwati Prasad Pandey, P. W. 3 who resided some 200 paces away. The Village Pradhan Bhagwati Prasad Pandey, P.W. 3 accompanied by some of the villagers arrived at the house of Smt. Bulakan and saw the

deceased Kumari Sumati lying dead on the cot and Kumari Kalkanta lying unconscious in pool of blood on another cot. She subsequently died in the hosr'tal.

Learned counsel for the appellants made no endeavour to cha!-lenge the conviction of the appellants for having committed 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 corroborated by P. W. 2 Kandhai and P. W. 3 Bhagwati Prasad Pandey. She is natural witness and has given vivid description of the entire incident resulting in the gruesome deaths of her daughters Kumari Sumati and Kumari Kalkanta. It is established in evidence that immediately after the occurrence she named all the assailants. The first information report (Exh. Ka 1) lodged by Bhagwati Prasad Pandey P.W. 3, the Village Pradhan, contains the names of the assail-ants. The Ist 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 con-victed Ganga Prasad and Hemraj, two sons of Asha.di Lal, and Mata Badal, son of Babu, under s. 302 read withs. 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 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 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 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 in Bachan Singh v. State of Punjab, [1980] SCC 648 as elaborated in the later case of Machhi Singh v. State of Punjab, [1983] 3 sec 470. The punishment must fit the crime. These were cold-blooded brutal murders in which two innocent girls lost their

lives. The e11treme brutality with which the appellants acted shocks the judicial conscience. Failure to impose death sentence in such grave cases where it is 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 tbe Court to impose proper punishment depending upon the 8 degree of criminality and desirability to impose such punishment. The only punishment which the appellants deserve for having committed the reprehen~ible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they bad with regard to property with their !!:'Other Smt. Bulakan is nothing but death. As measure of social necessity and also as means of deterring other potential offenders the sentence of death on the two app~llants Asharfi Lal and Babu is confirmed.

The appeal is dismissed accordingly.

Appeal dismissed.