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
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
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
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