Balraj Vs. State of U.P.
EmailAppeal: Criminal Appeal No.26 of 1994
Petitioner: Balraj
Respondent: State of U.P.
Apeal: Criminal Appeal No.26 of 1994
Judges: K. JAYACHANDRA REDDY & Dr. A.S. ANAND, JJ.
Date of Judgment: Dec 04, 1994
Head Note:
CRIMINAL LAW
Code of Criminal Procedure, 1973:
Section 357(3) – Payment of compensation to victim by the accused – Power to award compensation is not ancillary to other sentences but it is in addition thereto.
(Sarwan Singh and others v. State of Punjab, AIR 1978 SC 1525 and Hari Singh v. Sukhbir Singh and others, JT 1988 (3) SC 711 – Relied.)
Death Sentence
Death sentence – Murder of four members of the family – Award of death sentence by the Trial Court – Mental condition of accused to be taken into account – Accused committed the murders under the influence of extreme mental and emotional disturbance and also having a reasonable apprehension that his life was in danger and not merely for personal gain – Murders held not cold-blooded – Sentence of death reduced to imprisonment for life – Accused however directed to pay compensation to the victim – IPC, section 302.
Held:
It is true, as observed the courts below, that the accused attacked the members of family of Tej Pal but in awarding death sentence, the court has to take into consideration the mental condition of the accused. From the findings of the courts below, it is clear that the accused was mentally disturbed and in fact he expressed before P.W.2 that she wanted to kill him and therefore he would finish them. The records and the evidence of the Inspector as well as of P.W.15, the Panch witness reveal that the accused stated that Tej Pal and P.W.2 wanted to kill him and accordingly administered some poison which made him vomit the blood. From the beginning the case of the prosecution is that Tej Pal has been harassing the accused in respect of the opening of the shop and has been making undue demands and even raised a dispute regarding supply of electricity to the shop to be opened by Balraj which fell to his share. Actually the prosecution examined the close relations of the accused and the deceased namely P.Ws. 5,11,14,18 and 19 to prove the motive aspect namely that Tej Pal was harassing the accused who is no other than his own brother and has been demanding an amount of Rs.7,000/- in respect of permitting Balraj to open the shop and also raised a dispute regarding electricity. Coupled with this the accused was further mentally disturbed and had an apprehension that Tej Pal and P.W.2 wanted to do away with him so that he may not be an obstacle. This is one of the important circumstances which should be given weight in determination of sentence. On the facts and circumstances of this case it cannot be said that the accused would be a menace to the society if allowed to live. It is not a case where he committed these murders merely for personal gain but on the other hand committed the same under the influence of extreme mental and emotional disturbance and also having a reasonable apprehension that his life was in danger. No doubt, two innocent kids also received injuries in the occurrence but when once there is material to show that the accused acted in a highly disturbed mental condition, the murders cannot be said to be cold-blooded. The accused seemed to have acted in a frenzy manner in such a mental disturbed condition. We cannot also overlook the fact that there is no direct evidence connecting the accused with the murders of Tej Pal and Bhante Baba and with regards the assault on P.W.2 and children inside the house, there is only the solitary evidence of P.W.2 and the other children P.Ws. 3 and 4 who were examined as eye-witnesses did not support the evidence of P.W.2. Under these circumstances, we think it may not be safe to award death sentence. (Paras 10 and 11)
Cases Reffered:
1. Hari Singh v. Sukhbir Singh and others, JT 1988 (3) SC 711 = 1988 (4) SCC 551. (Para 11)
2. Asharfi Lal and others v. State of Uttar Pradesh, JT 1987 (2) SC 595 = 1987 (3) SCC 224. (Para 8)
3. Bachan Singh v. State of Punjab etc. etc., 1980 (2) SCC 684. (Para 9)
4. Sarwan Singh and others v. State of Punjab, AIR 1978 SC 1525. (Para 11)
2. Asharfi Lal and others v. State of Uttar Pradesh, JT 1987 (2) SC 595 = 1987 (3) SCC 224. (Para 8)
3. Bachan Singh v. State of Punjab etc. etc., 1980 (2) SCC 684. (Para 9)
4. Sarwan Singh and others v. State of Punjab, AIR 1978 SC 1525. (Para 11)
JUDGEMENT:
K. JAYACHANDRA REDDY, J. :
1. Balraj, the sole appellant has been convicted under Section 302 I.P.C. for the offence of committing the murders of four members of P.W.2’s family and also under Section 307 I.P.C. for attempting to commit the murder of P.W.2. In respect of murders charge he has been sentenced to death and for the offence punishable under Section 307 I.P.C. he has been sentenced to undergo seven years’ R.I. The Division Bench of the High Court confirmed the convictions and the sentences awarded by the trial court.
2. The prosecution case is as follows:
P.W.2, Smt. Laxmi Devi, is the wife of Tej Pal, one of the deceased persons in the case. The appellant Balraj is the younger brother of Tejpal. Budh Jyoti, a boy aged about 13 months, Kumari Renu, aged about 4 years, Kumari Chandrawati, aged about 11 years and Kumari Deep Mala, aged about 8 years were the children of P.W.2 and Tej Pal. One Bhante Baba was a person known to the family. According to the prosecution there were disputes between the deceased Tej Pal and the accused about the opening of a shop. Tej Pal was demanding an advance of Rs.7, 000/- and even regarding the electricity a dispute arose. Balraj suspected that his younger* brother Tej Pal and his wife P.W.2 poisoned him and because of that he suffered vomiting of blood and he also suspected that these persons had decided to commit his murder. On the day of occurrence i.e. 13.2.88 at about 7.30 P.M. the accused armed with a gandasa came to the house of P.W.2 saying that she wanted to kill him and therefore he will finish all of them that day. So saying he started assaulting Budh Jyoti, Renu and other children. He also assaulted P.W.2, who became unconscious after receipt of the injuries. According to the prosecution, during the same occurrence the accused also assaulted Tej Pal and Bhante Baba. P.W.7, the Inspector of Police, Sitarganj received a phone call that an injured man was lying near the Post Office, Sitarganj and another injured man was lying almost dead near a culvert of a canal but the informant did not disclose his name. P.W.7 having made an entry in the diary visited the place in a jeep and he saw a group of people there. He found Tej Pal lying with injuries and near the culvert Bhante Baba lying with injuries. He also came to know that Bhante Baba was living in the house of Tej Pal. P.W.7 immediately visited the house of Tej Pal which was nearby and he found that the door was closed. He opened the door and went inside a alongwith the witnesses and he found Kumari Deep Mala and Kumari Chandrawati lying unconscious with injuries. He also saw P.W.2 and Budh Jyoti lying injured on the cot and Kumari Renu lying injured on another cot which was closeby. P.W.7 found that all of them were in a state of unconsciousness. All of them were removed to the hospital. After registration of the crime, coming to know that the accused Balraj was available at the residence of his relatives at Moradabad, he went there and arrested him and at the instance of the accused the gandasa was recovered. Meanwhile Tej Pal and Bhante Baba, Budh Jyoti and Renu died. P.W.1 the Doctor, who conducted the post-mortem on the dead body of Tej Pal, found six incised injuries and opined that the death was due to these injuries. He also conducted post-mortem on the dead body of Renu and found some stitched wounds and found that the skull was fractured which resulted in death. He also conducted post-mortem on the dead body of Budh Jyoti. He found four stitched wounds on him and opined that the death was due to these injuries which could have been caused by a gandasa. On 16.2.88 P.W.6 conducted the post-mortem on the dead body of Bhante Baba who was aged about 60 years. He found some stitched wounds and incised wounds and he opined that the death occurred due to shock and haemorrhage due to ante-mortem injuries which could have been caused by a gandasa.
3. On 14.2.88 P.W.10, another Doctor examined P.W.2 and found some stitched wounds and incised wounds and the Doctor opined that they could have been caused by a sharp-edged weapon. On the same day, P.W.10 examined Kumari Chandrawati, P.W.3 and he found four incised injuries on her which could have been caused by a gandasa. After completion of the investigation, the charge-sheet was laid. The prosecution examined as many as 19 witnesses. A number of them are doctors as stated above. P.Ws.2,3 and 4 were examined as eye-witnesses and P.Ws. 5,11,14,18 and 19 were examined who spoke about the motive and the disputes between the two brothers and they turned hostile. The others are all formal witnesses.
4. The accused pleaded not guilty and stated that he has been falsely implicated. Out of P.Ws. 2,3 and 4, P.W.3 stated that she could not identify the assailant and she was also treated hostile. However, in the cross-examination by the prosecution, she stated that she and her mother and other sisters were assaulted by the assailant whom she did not identify. She has, however, stated that there was quarrel between her father and the accused. P.W.4 was treated as a minor child and the trial court has not even obtained her signature under her statement. Therefore her evidence was not taken into account at all. Therefore the prosecution is left only with the evidence of P.W.2 as an eye-witness. She has not stated as to who assaulted Tej Pal and Bhante Baba. She deposed that at about 7 or 7.30 P.M. the accused came with a gandasa and saying that they wanted to kill him and therefore he would finish them all, assaulted the children and also assaulted her (P.W.2) and consequently she became unconscious. In the cross-examination she denied the suggestion that some 10 to 12 assailants who could not be identified assaulted her. Both the courts have accepted her evidence.
5. Learned counsel for the appellant submitted that P.W.2 has
not come out with the whole truth particularly regarding the motive and that from her evidence it cannot conclusively be held that the appellant alone caused the injuries to Tej Pal and Bhante Baba near the Post Office or near the culvert and no other evidence is there to connect the appellant with those two murders.
6. Having perused the evidence of P.W.2, which is also supported by the medical evidence, we are satisfied that there cannot be any dispute as to the time and place of occurrence in respect of attack on P.W.2 and Budh Jyoti and Renu. No doubt there is no evidence to prove as to who assaulted Tej Pal and Bhante Baba but the inference is that they also must have received the injuries during the same transaction. The High Court, however, pointed out that there is no evidence to prove as to who assaulted Tej Pal and Bhante Baba but concluded that the accused assaulted Budh Jyoti, Renu and P.W.2. Having perused the evidence of P.W.2, we are satisfied that the accused was atleast responsible for causing the injuries to P.W.2. No doubt the occurrence has taken place at about 7.30 P.M. in the darkness but P.W.2 says that there was electric light and even otherwise the accused was known to her well. Therefore there would not have been any difficulty for her to identify the accused.
7. In view of the fact that the accused has caused injuries even to minor children and that he wanted to attack all the members of the family, both the courts below held that the case of the accused comes under the category of rarest of rare cases where death sentence alone should be awarded.
8. In this context, the High Court relied on the judgment of this Court in Asharfi Lal and others v. State of Uttar Pradesh, (1987) 3 SCC 224 where the accused committed the murders because of greed and personal vengeance. This Court also noted that the murders were committed with extreme brutality. The High Court observed that since the accused did not even spare his dearest and nearest and since P.W.2 is left without any helper or protector because of this occurrence, a serious view of the nature of occurrence has to be taken particularly from the point of view of law and order.
9. In Bachan Singh v. State of Punjab etc. etc. (1980) 2 SCC 684 this Court agreed that the following are undoubtedly the relevant circumstances which must be given weight in determination of the sentence namely:
“i) that the offence was committed under the influence of extreme mental or emotional disturbance; and
ii) probability that the accused would not commit criminal acts of violence as to constitute continual threat to the society.”
10. It is true, as observed the courts below, that the accused attacked the members of family of Tej Pal but in awarding death sentence, the court has to take into consideration the mental condition of the accused. From the findings of the courts below, it is clear that the accused was mentally disturbed and in fact he expressed before P.W.2 that she wanted to kill him and therefore he would finish them. The records and the evidence of the Inspector as well as of P.W.15, the Panch witness reveal that the accused stated that Tej Pal and P.W.2 wanted to kill him and accordingly administered some poison which made him vomit the blood. From the beginning the case of the prosecution is that Tej Pal has been harassing the accused in respect of the opening of the shop and has been making undue demands and even raised a dispute regarding supply of electricity to the shop to be opened by Balraj which fell to his share. Actually the prosecution examined the close relations of the accused and the deceased namely P.Ws. 5,11,14,18 and 19 to prove the motive aspect namely that Tej Pal was harassing the accused who is no other than his own brother and has been demanding an amount of Rs.7,000/- in respect of permitting Balraj to open the shop and also raised a dispute regarding electricity. Coupled with this the accused was further mentally disturbed and had an apprehension that Tej Pal and P.W.2 wanted to do away with him so that he may not be an obstacle. This is one of the important circumstances which should be given weight in determination of sentence. On the facts and circumstances of this case it cannot be said that the accused would be a menace to the society if allowed to live. It is not a case where he committed these murders merely for personal gain but on the other hand committed the same under the influence of extreme mental and emotional disturbance and also having a reasonable apprehension that his life was in danger. No doubt, two innocent kids also received injuries in the occurrence but when once there is material to show that the accused acted in a highly disturbed mental condition, the murders cannot be said to be cold-blooded. The accused seemed to have acted in a frenzy manner in such a mental disturbed condition. We cannot also overlook the fact that there is no direct evidence connecting the accused with the murders of Tej Pal and Bhante Baba and with regards the assault on P.W.2 and children inside the house, there is only the solitary evidence of P.W.2 and the other children P.Ws. 3 and 4 who were examined as eye-witnesses did not support the evidence of P.W.2.
11. Under these circumstances, we think it may not be safe to award death sentence. Learned counsel for the State, however, invited our attention that P.W.2 is left without any support with a family to be maintained. Therefore it is a fit case where this Court should award compensation to her. We are also of the view that this is very much necessary. Section 357(3) Cr. P.C. provides for ordering of payment by way of compensation to the victim by the accused. It is an important provision and it must also be noted that power to award compensation is not ancillary to other sentences but it is in addition thereto. To the same effect are the decisions of this Court in Sarwan Singh and others v. State of Punjab, AIR 1978 SC 1525 and Hari Singh v. Sukhbir Singh and others, (1988) 4 SCC 551. In the instant case the records show that the appellant Balraj has property and also some means.
12. For the reasons stated above, we confirm the conviction of the appellant under Section 302 I.P.C. but reduce the sentence of death to imprisonment for life. We further direct the the appellant Balraj shall pay Rs.10,000/- by way of compensation to P.W.2 Smt. Laxmi Devi and if the appellant fails to pay this amount within three months from today, the same may be collected as provided under Section 431 Cr. P.C. and be paid to P.W.2. The conviction and sentence of seven years R.I. under Section 307 I.P.C. are, however, confirmed. The sentences shall run concurrently. The order of the High Court is modified to the extent indicated above and the appeal is partly allowed.
1. Balraj, the sole appellant has been convicted under Section 302 I.P.C. for the offence of committing the murders of four members of P.W.2’s family and also under Section 307 I.P.C. for attempting to commit the murder of P.W.2. In respect of murders charge he has been sentenced to death and for the offence punishable under Section 307 I.P.C. he has been sentenced to undergo seven years’ R.I. The Division Bench of the High Court confirmed the convictions and the sentences awarded by the trial court.
2. The prosecution case is as follows:
P.W.2, Smt. Laxmi Devi, is the wife of Tej Pal, one of the deceased persons in the case. The appellant Balraj is the younger brother of Tejpal. Budh Jyoti, a boy aged about 13 months, Kumari Renu, aged about 4 years, Kumari Chandrawati, aged about 11 years and Kumari Deep Mala, aged about 8 years were the children of P.W.2 and Tej Pal. One Bhante Baba was a person known to the family. According to the prosecution there were disputes between the deceased Tej Pal and the accused about the opening of a shop. Tej Pal was demanding an advance of Rs.7, 000/- and even regarding the electricity a dispute arose. Balraj suspected that his younger* brother Tej Pal and his wife P.W.2 poisoned him and because of that he suffered vomiting of blood and he also suspected that these persons had decided to commit his murder. On the day of occurrence i.e. 13.2.88 at about 7.30 P.M. the accused armed with a gandasa came to the house of P.W.2 saying that she wanted to kill him and therefore he will finish all of them that day. So saying he started assaulting Budh Jyoti, Renu and other children. He also assaulted P.W.2, who became unconscious after receipt of the injuries. According to the prosecution, during the same occurrence the accused also assaulted Tej Pal and Bhante Baba. P.W.7, the Inspector of Police, Sitarganj received a phone call that an injured man was lying near the Post Office, Sitarganj and another injured man was lying almost dead near a culvert of a canal but the informant did not disclose his name. P.W.7 having made an entry in the diary visited the place in a jeep and he saw a group of people there. He found Tej Pal lying with injuries and near the culvert Bhante Baba lying with injuries. He also came to know that Bhante Baba was living in the house of Tej Pal. P.W.7 immediately visited the house of Tej Pal which was nearby and he found that the door was closed. He opened the door and went inside a alongwith the witnesses and he found Kumari Deep Mala and Kumari Chandrawati lying unconscious with injuries. He also saw P.W.2 and Budh Jyoti lying injured on the cot and Kumari Renu lying injured on another cot which was closeby. P.W.7 found that all of them were in a state of unconsciousness. All of them were removed to the hospital. After registration of the crime, coming to know that the accused Balraj was available at the residence of his relatives at Moradabad, he went there and arrested him and at the instance of the accused the gandasa was recovered. Meanwhile Tej Pal and Bhante Baba, Budh Jyoti and Renu died. P.W.1 the Doctor, who conducted the post-mortem on the dead body of Tej Pal, found six incised injuries and opined that the death was due to these injuries. He also conducted post-mortem on the dead body of Renu and found some stitched wounds and found that the skull was fractured which resulted in death. He also conducted post-mortem on the dead body of Budh Jyoti. He found four stitched wounds on him and opined that the death was due to these injuries which could have been caused by a gandasa. On 16.2.88 P.W.6 conducted the post-mortem on the dead body of Bhante Baba who was aged about 60 years. He found some stitched wounds and incised wounds and he opined that the death occurred due to shock and haemorrhage due to ante-mortem injuries which could have been caused by a gandasa.
3. On 14.2.88 P.W.10, another Doctor examined P.W.2 and found some stitched wounds and incised wounds and the Doctor opined that they could have been caused by a sharp-edged weapon. On the same day, P.W.10 examined Kumari Chandrawati, P.W.3 and he found four incised injuries on her which could have been caused by a gandasa. After completion of the investigation, the charge-sheet was laid. The prosecution examined as many as 19 witnesses. A number of them are doctors as stated above. P.Ws.2,3 and 4 were examined as eye-witnesses and P.Ws. 5,11,14,18 and 19 were examined who spoke about the motive and the disputes between the two brothers and they turned hostile. The others are all formal witnesses.
4. The accused pleaded not guilty and stated that he has been falsely implicated. Out of P.Ws. 2,3 and 4, P.W.3 stated that she could not identify the assailant and she was also treated hostile. However, in the cross-examination by the prosecution, she stated that she and her mother and other sisters were assaulted by the assailant whom she did not identify. She has, however, stated that there was quarrel between her father and the accused. P.W.4 was treated as a minor child and the trial court has not even obtained her signature under her statement. Therefore her evidence was not taken into account at all. Therefore the prosecution is left only with the evidence of P.W.2 as an eye-witness. She has not stated as to who assaulted Tej Pal and Bhante Baba. She deposed that at about 7 or 7.30 P.M. the accused came with a gandasa and saying that they wanted to kill him and therefore he would finish them all, assaulted the children and also assaulted her (P.W.2) and consequently she became unconscious. In the cross-examination she denied the suggestion that some 10 to 12 assailants who could not be identified assaulted her. Both the courts have accepted her evidence.
5. Learned counsel for the appellant submitted that P.W.2 has
not come out with the whole truth particularly regarding the motive and that from her evidence it cannot conclusively be held that the appellant alone caused the injuries to Tej Pal and Bhante Baba near the Post Office or near the culvert and no other evidence is there to connect the appellant with those two murders.
6. Having perused the evidence of P.W.2, which is also supported by the medical evidence, we are satisfied that there cannot be any dispute as to the time and place of occurrence in respect of attack on P.W.2 and Budh Jyoti and Renu. No doubt there is no evidence to prove as to who assaulted Tej Pal and Bhante Baba but the inference is that they also must have received the injuries during the same transaction. The High Court, however, pointed out that there is no evidence to prove as to who assaulted Tej Pal and Bhante Baba but concluded that the accused assaulted Budh Jyoti, Renu and P.W.2. Having perused the evidence of P.W.2, we are satisfied that the accused was atleast responsible for causing the injuries to P.W.2. No doubt the occurrence has taken place at about 7.30 P.M. in the darkness but P.W.2 says that there was electric light and even otherwise the accused was known to her well. Therefore there would not have been any difficulty for her to identify the accused.
7. In view of the fact that the accused has caused injuries even to minor children and that he wanted to attack all the members of the family, both the courts below held that the case of the accused comes under the category of rarest of rare cases where death sentence alone should be awarded.
8. In this context, the High Court relied on the judgment of this Court in Asharfi Lal and others v. State of Uttar Pradesh, (1987) 3 SCC 224 where the accused committed the murders because of greed and personal vengeance. This Court also noted that the murders were committed with extreme brutality. The High Court observed that since the accused did not even spare his dearest and nearest and since P.W.2 is left without any helper or protector because of this occurrence, a serious view of the nature of occurrence has to be taken particularly from the point of view of law and order.
9. In Bachan Singh v. State of Punjab etc. etc. (1980) 2 SCC 684 this Court agreed that the following are undoubtedly the relevant circumstances which must be given weight in determination of the sentence namely:
“i) that the offence was committed under the influence of extreme mental or emotional disturbance; and
ii) probability that the accused would not commit criminal acts of violence as to constitute continual threat to the society.”
10. It is true, as observed the courts below, that the accused attacked the members of family of Tej Pal but in awarding death sentence, the court has to take into consideration the mental condition of the accused. From the findings of the courts below, it is clear that the accused was mentally disturbed and in fact he expressed before P.W.2 that she wanted to kill him and therefore he would finish them. The records and the evidence of the Inspector as well as of P.W.15, the Panch witness reveal that the accused stated that Tej Pal and P.W.2 wanted to kill him and accordingly administered some poison which made him vomit the blood. From the beginning the case of the prosecution is that Tej Pal has been harassing the accused in respect of the opening of the shop and has been making undue demands and even raised a dispute regarding supply of electricity to the shop to be opened by Balraj which fell to his share. Actually the prosecution examined the close relations of the accused and the deceased namely P.Ws. 5,11,14,18 and 19 to prove the motive aspect namely that Tej Pal was harassing the accused who is no other than his own brother and has been demanding an amount of Rs.7,000/- in respect of permitting Balraj to open the shop and also raised a dispute regarding electricity. Coupled with this the accused was further mentally disturbed and had an apprehension that Tej Pal and P.W.2 wanted to do away with him so that he may not be an obstacle. This is one of the important circumstances which should be given weight in determination of sentence. On the facts and circumstances of this case it cannot be said that the accused would be a menace to the society if allowed to live. It is not a case where he committed these murders merely for personal gain but on the other hand committed the same under the influence of extreme mental and emotional disturbance and also having a reasonable apprehension that his life was in danger. No doubt, two innocent kids also received injuries in the occurrence but when once there is material to show that the accused acted in a highly disturbed mental condition, the murders cannot be said to be cold-blooded. The accused seemed to have acted in a frenzy manner in such a mental disturbed condition. We cannot also overlook the fact that there is no direct evidence connecting the accused with the murders of Tej Pal and Bhante Baba and with regards the assault on P.W.2 and children inside the house, there is only the solitary evidence of P.W.2 and the other children P.Ws. 3 and 4 who were examined as eye-witnesses did not support the evidence of P.W.2.
11. Under these circumstances, we think it may not be safe to award death sentence. Learned counsel for the State, however, invited our attention that P.W.2 is left without any support with a family to be maintained. Therefore it is a fit case where this Court should award compensation to her. We are also of the view that this is very much necessary. Section 357(3) Cr. P.C. provides for ordering of payment by way of compensation to the victim by the accused. It is an important provision and it must also be noted that power to award compensation is not ancillary to other sentences but it is in addition thereto. To the same effect are the decisions of this Court in Sarwan Singh and others v. State of Punjab, AIR 1978 SC 1525 and Hari Singh v. Sukhbir Singh and others, (1988) 4 SCC 551. In the instant case the records show that the appellant Balraj has property and also some means.
12. For the reasons stated above, we confirm the conviction of the appellant under Section 302 I.P.C. but reduce the sentence of death to imprisonment for life. We further direct the the appellant Balraj shall pay Rs.10,000/- by way of compensation to P.W.2 Smt. Laxmi Devi and if the appellant fails to pay this amount within three months from today, the same may be collected as provided under Section 431 Cr. P.C. and be paid to P.W.2. The conviction and sentence of seven years R.I. under Section 307 I.P.C. are, however, confirmed. The sentences shall run concurrently. The order of the High Court is modified to the extent indicated above and the appeal is partly allowed.
