ASHARFI LAL & SONSversusSTATE OF U.P.

A                           ASHARFl LAL & SONS
                                         v.
                                STATE OF U.P.
                                                                                   "'~-
                                MARCH 30, 1987
B
            [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
c   of social necessity and deterrence to other potential offenders.               ~
                                                                                    '

          Criminal Trial:

         sentence-Duty of Court-Impose proper punishment-Depend-
D   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
E   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 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
F   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 a
    First Information Report,
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G
         The appellants were tried and the two brothers were convicted



                                                                                    4
    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
H   convicted under Section 148 of the Indian Penal Code.


                                        722
                      A. LAL ,_, SONS v. U.P. STATE                    723

      The High Court, affirming the conviction and sentences awarded A
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.    C
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         D
de11tll, (725H; 726B-C)

      1,3 Failure to impose depth sentence in such grave cases where it
Is a 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)
                                                                              E
       1.4 ,\s a measure of social necessity a11d also as a 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 F
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,
                                                                           G
     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           H
Reference No. 2of1985.
     724                  SUPREME COURT REPORTS         [1987] 2 S.C.R.

A          Shakeel Ahmad for the Appellants.

           The Judgment of the Court was delivered by

        SEN, J. Appellants Asharfi Lal and Babu who are real brothers,
,Bare 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.
C 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
D 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 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
F pressing down her legs while appellant Babu repeatedly struck her
  with a 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 a banka while
  appellant Hemra chopped off the right hand of the girl with a gandasa.
G 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 Bhagwati Prasad
  Pandey, P. W. 3 who resided some 200 paces away. The Village
H Pradhan Bhagwati Prasad Pandey, P.W. 3 accompanied by some of
  the villagers arrived at the house of Smt. Bulakan and saw the
                          A. LAL & SONS v. U.P. STATE [SEJ, J.]               725



    ·-   deceased Kumari Sumati lying dead on the cot and Kumari Kalkanta A
         lying unconscious in a 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 B
'
    ~-   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 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 established in evidence that c
         immediately after the occurrence she named all the assailants. The
    A:   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 D
         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
    t    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 E
         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
    f    the applicable law, it was satisfied that this was one of the rarest of the F
         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 G



    "    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
                                                                                     H
   726                   SUPREME COURT REPORTS           [1987] 2 S.C.R.

A lives. The e11treme 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 tbe Court to impose a 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 a
  measure of social necessity and also as a means of deterring other
c potential offenders the sentence of death on the two app~llants
  Asharfi Lal and Babu is confirmed.

         The appeal is dismissed accordingly.

   N.P.V.                                              Appeal dismissed.




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