1996 JTR(SC) 753
1996 2 AICLR 256 ; 1996 AIR(SC) 1613 ; 1996 AIR(SCW) 1882 ; 1996 33 AllCriC 439 ; 1997 1 BLJR 81 ; 1996 2 CCR(SC) 145 ; 1996 CriLR 402 ; 1996 2 Crimes(SC) 59 ; 1996 CrLJ 2307 ; 1996 2 EastCrC(SC) 46 ; 1996 4 JT 140 ; 1996 3 RCR(Cri) 467 ; 1996 3 Scale 430 ; 1996 9 SCC 287 ; 1996 SCC(Cri) 1004 ; 1996 SCR 174 ; 1996 KHC 1189 ; 1996 3 Supreme 482
1996(3) Supreme 482
SUPREME COURT OF INDIA
G.N. Ray and B.L. Hansaria, JJ.
Raja Ram Yadav & Ors. -Appellants
versus
State of Bihar . -Respondent
Criminal Appeal No. 477-79 of 1996
(Arising out of SLP (Cri.) No. 323 of 1996 with SLP (Cri.) No. 452 of 1996 And SLP (Cri.) No. D3434/96)
Decided on 11-4-1996
IMPORTANT POINT
In a case of premeditated murder of twenty six persons including women and children, committed in calculated manner with extreme .cruelty and brutality, death sentence commuted to the sentence of life imprisonment considering the sale eyewitness did not till the names of four of the appellants.
Act
Referred
:EVIDENCE ACT : S.118
INDIAN PENAL CODE : S.148, S.149, S.302, S.436
A) The offences of murder under Section 302 read with Section 34 of the Indian Penal Code attract the extreme penalty of death, but its imposition is governed by the principles laid down in Sections 118 and 148 of the Evidence Act read with Sections 149, 302, and 436 of the Indian Penal Code. Section 118 of the Evidence Act mandates that the Court must act upon the quality and reliability of evidence, particularly when the sole witness is a child, requiring extreme caution. Section 148 IPC addresses acts done in furtherance of an unlawful assembly, while Section 149 IPC holds every member liable for acts committed in prosecution of the common object. Section 302 IPC defines the punishment for murder, which may include death, while Section 436 read with Section 149 IPC addresses mischief by fire or explosive substances. These provisions apply as the conviction was based on a child witnesss testimony, participation in a common unlawful assembly, and acts of murder and mischief committed in a premeditated and brutal manner.
B) The Court must consider both aggravating and mitigating circumstances while awarding the death penalty. The death sentence is permissible only in the rarest of rare cases where the crime shocks the collective conscience and is committed with extreme brutality and premeditation. Mere commission of a grievous offence is insufficient; the quality of evidence, especially from a child witness, must be overwhelmingly convincing. Mitigating factors such as youth, lack of criminal history, and the trauma of the accused must be balanced against aggravating factors like the scale of the brutality and the motive of revenge.
Facts of the case:
On 30th May 1987, at about 1 A.M., a gruesome incident occurred at Village Baghora in Aurangabad district where 26 persons, predominantly from one community, were murdered and their houses set on fire in retaliation for a prior carnage. The accused were convicted for murdering six specific individuals, including a woman, her husband, his uncle, and three sisters, in a cool and calculated manner. The sole eye witness was a boy aged about 9 years who hid in a kotha and identified all eight accused persons. The accused were also convicted under Section 436 read with Section 149 IPC for committing mischief by fire, but were acquitted of a charge under Section 120B IPC. The High Court upheld the death sentence awarded against all eight accused.
Findings of Court:
The Court acknowledged the extreme brutality and premeditation of the crime, noting it as one of the rarest of the rare cases capable of shocking society. However, the Court was constrained by the reliance on the testimony of a child witness who, despite the trauma, provided a detailed and consistent account. Crucially, the child witness failed to identify four of the eight accused at the time of the incident, creating reasonable doubt about their involvement in the murder. While the convictions under Sections 302, 148, and 436/149 were upheld, the death sentence was deemed disproportionate given these mitigating factors.
Issues:
Whether the death sentence is warranted in a case where the sole eye witness is a child and fails to identify some of the accused? Whether the trauma of the accused and their lack of criminal history are sufficient mitigating factors to commute the death penalty to life imprisonment?
Ratio Decidendi:
In cases of murder attracting the death penalty, the Court must apply the rarest of rare doctrine and balance aggravating and mitigating circumstances. The evidence of a child witness, though potentially reliable, cannot be the sole basis for imposing the death penalty, especially when the witness fails to identify all accused. The presence of mitigating factors such as youth, absence of criminal history, and revenge trauma can justify commuting the death sentence to life imprisonment.
Result:
The death sentence imposed on all eight appellants is commuted to life imprisonment. Additionally, each appellant is sentenced to six years rigorous imprisonment for the offence of mischief under Section 436 read with Section 149 IPC and a composite fine of Rs.15,000/-, with default leading to three years further imprisonment. The sentences of life imprisonment and six years rigorous imprisonment are to run consecutively.
A) The offences of murder under Section 302 read with Section 34 of the Indian Penal Code attract the extreme penalty of death, but its imposition is governed by the principles laid down in Sections 118 and 148 of the Evidence Act read with Sections 149, 302, and 436 of the Indian Penal Code. Section 118 of the Evidence Act mandates that the Court must act upon the quality and reliability of evidence, particularly when the sole witness is a child, requiring extreme caution. Section 148 IPC addresses acts done in furtherance of an unlawful assembly, while Section 149 IPC holds every member liable for acts committed in prosecution of the common object. Section 302 IPC defines the punishment for murder, which may include death, while Section 436 read with Section 149 IPC addresses mischief by fire or explosive substances. These provisions apply as the conviction was based on a child witnesss testimony, participation in a common unlawful assembly, and acts of murder and mischief committed in a premeditated and brutal manner.
B) The Court must consider both aggravating and mitigating circumstances while awarding the death penalty. The death sentence is permissible only in the rarest of rare cases where the crime shocks the collective conscience and is committed with extreme brutality and premeditation. Mere commission of a grievous offence is insufficient; the quality of evidence, especially from a child witness, must be overwhelmingly convincing. Mitigating factors such as youth, lack of criminal history, and the trauma of the accused must be balanced against aggravating factors like the scale of the brutality and the motive of revenge.
Facts of the case:
On 30th May 1987, at about 1 A.M., a gruesome incident occurred at Village Baghora in Aurangabad district where 26 persons, predominantly from one community, were murdered and their houses set on fire in retaliation for a prior carnage. The accused were convicted for murdering six specific individuals, including a woman, her husband, his uncle, and three sisters, in a cool and calculated manner. The sole eye witness was a boy aged about 9 years who hid in a kotha and identified all eight accused persons. The accused were also convicted under Section 436 read with Section 149 IPC for committing mischief by fire, but were acquitted of a charge under Section 120B IPC. The High Court upheld the death sentence awarded against all eight accused.
Findings of Court:
The Court acknowledged the extreme brutality and premeditation of the crime, noting it as one of the rarest of the rare cases capable of shocking society. However, the Court was constrained by the reliance on the testimony of a child witness who, despite the trauma, provided a detailed and consistent account. Crucially, the child witness failed to identify four of the eight accused at the time of the incident, creating reasonable doubt about their involvement in the murder. While the convictions under Sections 302, 148, and 436/149 were upheld, the death sentence was deemed disproportionate given these mitigating factors.
Issues:
Whether the death sentence is warranted in a case where the sole eye witness is a child and fails to identify some of the accused? Whether the trauma of the accused and their lack of criminal history are sufficient mitigating factors to commute the death penalty to life imprisonment?
Ratio Decidendi:
In cases of murder attracting the death penalty, the Court must apply the rarest of rare doctrine and balance aggravating and mitigating circumstances. The evidence of a child witness, though potentially reliable, cannot be the sole basis for imposing the death penalty, especially when the witness fails to identify all accused. The presence of mitigating factors such as youth, absence of criminal history, and revenge trauma can justify commuting the death sentence to life imprisonment.
Result:
The death sentence imposed on all eight appellants is commuted to life imprisonment. Additionally, each appellant is sentenced to six years rigorous imprisonment for the offence of mischief under Section 436 read with Section 149 IPC and a composite fine of Rs.15,000/-, with default leading to three years further imprisonment. The sentences of life imprisonment and six years rigorous imprisonment are to run consecutively.
Sentencing - The court refers to this case for the principle that the death penalty should be reserved for the rarest of rare cases where extreme culpability is proven.
JUDGMENT
G.N. Ray. J.-Leave granted.
2. 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 Jadav alias-Ram Keswar Yadav son of Narain Yadav (4) Jag Narain Yadav son of Jattu Yadav (5) Chintaman Yadav son of Vilas Yadav (6) Brahamdeo Yadav son Moheri Yadav (7) Chander Deep Yadav son of Jattu Yadav and (8) Ram Pravesh Yadav son of Narain Yadav.
3. 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.
4.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), Chintaman Yadav (A-5) and Ram Pravesh Yadav (A-6) under Section 303 IPC arid 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 readwith Section 34 IPC. The High Court also upheld the conviction of 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.
5. Initially the appellants sent an application for special leave from Jail being S.L.P.Crl.)No.323ofl996andSriS.S.KhanduJa, learned advocate, was appointed as amicus curiae. Later on, the appellants preferred S.L.P. (Cri.) No. 432 of 1996 and S.L.P. (Cri.) No. 3434 of 1996. Mr. Rajendra Singh, the learned senior advocate , appeared in the appeal arising out of S.L.P. (Cri.) 452 of 1996 and Mr. K.G. Kannabriran. Learned senior advocate, appeared for the appellants in the appeal arising out of S.L.P. (Cri.) No. 3434 of 1996. Mr. Udai Sinha. learned senior advocate, has appeared for the State in all the appeals.
6. 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 Single Sita Ram Singh, the wife of Sitd 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 120B 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 occured 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 houses 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 dditional Sessions Judge acquitted the said accused but convicted the 8 appellants for the offence of 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 lamentable.
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 Shaitendra. According to PW3. 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 relation, is likely to lose the normal frame of mind 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 thi3 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 accordingly 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 Brahmdeo as the persons who had murdered the said six persons. PW 3 did not state before PW 1 the names of Keshay Yadav, Jag Narain, Babu Ramand Chandra Deep as the persons who had 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 the said murder, the said four accused deserve to be dealt leniently in the matter of awarding capital sentence.
7. 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 had been a carnage in village Chhechhani near the village Baghora. The said incident of carnage in Chhechhani had taken place only about a 1 ^months earlier. In the incident at Chhechhani, the Rajputs bad kilted the Yadavs and the proseution 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 Chhechhani where the kith and kin of th 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 taken 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.
8. Mr. Kannabhiran 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 mitigating/factor in the matter of awarding death sentence in this case.
Mr. Khanduja 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.
9. Mr. Udai Sinha. appearing for the State of Bihar, in all the appeals has however submitted that the evidence of a child witness it 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 conviced 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 hew 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 offence;. Mr. Sinha has submitted that the said acts of murder and arson were pre-planed and the same had been committed to take revenge for an unfortunate incident happened in the village Chhechhani. 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 PW 3 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 Chhechhani village. The appellants did not spare even such innocent children and in a cool and calculated manner just wiped but 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.
10. 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 barbaric 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 has awarded indicating cogent reasons. Mr. Sinha was submitted that the said incident of murder of the six persons is undoubtedly one. of the rarest of the 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 wipe out all the members of a family only because they belonged to Rajput community, the crime has assumed an unprecedented magnitude making it is 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 shocked 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.
11. After giving our anxious consideration to the facts and 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 cruet incident cannot but send a wave of shock to the society at large.
12. In Bachan Singh s case1 a Constitution Bench of this Court has indicated the aggravating circumstances in committing the offence of murder; R has been also indicated in the said decision that the Court should also take into account the mitigating circumstances, while nothing the aggravating circumstances for awarding appropriate sentence. In Machhi Singh v. State of Punjab2, 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 v. State of U.P3. 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 nothing the mitigating factors in favour of the accused, Chandrachub. C.J., speaking for the Court has also indicated that it will not be safe to impose extreme penalty of death in a 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.
13. 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 brutality, 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.
14. 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 Sections 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 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 realised, 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 nearth and home being reduced to ashes.
15. The appeals are accordingly disposed of.
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