DATE : 01-04-1998  1999-(105)-CRLJ -2913 -MP

PENAL LAW MURDER CHILD WITNESS

Penal Code, 1860 – Sections 300 and 302 – Murder case – Deceased a boys went with accused along with two other boys to collect leaves from jungle – Accused was aroused by simple fact that the deceased boys were thirsty and wanted to return home against the dictate of the accused – Accused hit deceased on his abdomen with Hasia and when other deceased tried to stop the accused from attacking accused assaulted him also with Kulhadi on his head and face – They died on the spot itself – FIR corroborating the statement of eye-witnesses – Medical evidence supporting the facts that Hasia and Axe were used to attack the two innocent boys of tender age – Recovery of blood stained weapons as also blood stained clothes at the instance of the accused – Mere fact that the eye-witnesses are boys of 11 and 14 years respectively, does not in any manner discredit them – Their version is natural – They are of sufficient understanding and memory – They have no enmity with accused – Accused has rightly been convicted for the offence of murder of two innocent boys – However, it is not a case of pre-planning or wreaking vengeance on anybody but of impulsive murder without any thought or motive murder of this type even though there are more than one murder does not fall in the category of ‘rarest of rare’ case – Sentence of death converted into imprisonment for life

JUDGE(S) :

R P Gupta

Rajeev Gupta

MADHYA PRADESH HIGH COURT

JUDGMENT

R. P. GUPTA, J. :- The respondent in reference who is also the appellant in appeal has been convicted for the offence of murder punishable under Section 302, I.P.C. by Sessions Judge, Raisen, vide Judgment dated 19-12-1997. He has been sentenced to death by hanging. This was in Sessions Trial No. 186/95.

2. The trial Court has found that on 25-6-1995 at about 6 p.m. in village Mehka, in jungle area, this accused Tantoo alias Halkeveer, aged about 19 years committed murders of Vindraj Singh, aged about 13 years and Ramendra Singh, aged about 15 years while they all, along with Ramkesh aged about 11 years (PW 3) and Kamlesh, aged about 15 years (PW 5), had gone to the forest to collect leaves. At that time, the deceased Ramendra Singh, expressed his desire to go home as he was thirsty, but the accused had insisted upon him to first complete the picking up of leaves. Since, Ramendra Singh, refused to do so, the accused hit him on his abdomen with Hasia and when the deceased Vindraj Singh tried to stop the accused from attacking Ramendra Singh, the accused assaulted Vindraj Singh also with Kulhadi on his head and face. They died on the spot itself. So the accused was convicted of these murders.

3. The prosecution case further was that Ramkesh (PW 3) and Kamlesh (PW 5) informed Lakhan Singh (PW 2) who was related to the deceased in the village. Lakhan Singh came to the scene of crime and found the dead bodies. He gave First Information Report Ex. P. 3. on 26-6-1995 at about 6.30 p.m. to C. L. Verma, A.S.I. (PW 7) at P.S. Devri. Thereon, P.W. 7 rushed to scene of crime and prepared a site plan vide Ex. P. 4. He also prepared inquest reports. Ex. P. 6 and P. 7 on the two dead bodies in the presence of witnesses and seized from that spot, blood stained earth, control earth, stalk of leaves, vide seizure memos Ex. P. 9, P. 10 and P. 11.

4. The Autopsy Surgeon conducted the post mortem examination on 27-6-1995 by Dr. Sanjay Purohit, Assistant Surgeon (PW 8). 10 incised wounds were found on various parts of body of Ramendra Singh including chest, abdomen, face, and head, Similarly, incised wounds were found on the neck, jaw, shoulder and back of Vindraj Singh. These were ante-mortem and sufficient to cause death. The deaths resulted from these injuries. The autopsy on the bodies was conducted on 27-6-1995. The appellant was arrested on 27-6-1995 vide memo Ex. P. 12. He made a disclosure statement recorded in memo vide Ex. P. 13 disclosing where he has concealed the Axe and Hasia on a tree in the jungle. He led to the recovery of these weapons which were found blood stained. They were seized vide memo Ex. P. 14 by Police. The clothes which the accused was wearing such as Banian, Gamcha, were found blood stained. They were seized from his body vide memo Ex. P. 15. On chemical examination at F.S.L., Sagar, it was found that the Kulhadi and Hasia, which were thus recovered at the instance of the accused and his banian and towel (Tolia) were stained with blood. The origin of blood, whether it was human, could not be determined, because of disintegration of blood.

5. The witnesses Ramkesh (PW 3) and Kamlesh (PW 5) corroborated the prosecution version that this accused attacked the two deceased with Hasia and Axe and committed their murder in jungle, because they had refused to pick leaves and wanted to go home to quench their thirst. Lakhen Singh (PW 2) who gave FIR appeared in Court as PW 2. He supported the prosecution version that the accused, the two deceased and the above witnesses had gone to collect leaves in jungle and the two witnesses Kamlesh and Ramkesh informed him that this accused assaulted the two deceased with Kulhadi and Hasia. So he went to the spot and found dead bodies of Vindraj Singh and Ramendra Singh. Vindraj is his nephew and Ramendra Singh is his cousin. So he (Lakhan Singh) lodged FIR Ex. P. 3 where he named this accused as assailant, on the basis of information received from the witnesses Ramkesh and Kamlesh. All these circumstances of their going to jungle and the background of attack were narrated in the same manner by the two boys in Court. Ramkesh is 11 years old and Kamlesh is 14 years old. They were found to be having good understanding, by the Trial Court. P.W. 6 is the Investing Officer, who interrogated the accused and recorded his disclosure statement Ex. P. 13 about the Kulhadi and Hasia and seized the same at his instance on 27-6-1995. He also seized his clothes. PW 7 is the Investigating Officer, who prepared the site plan of scene of crime and sent the bodies for postmortem examination, after preparing their inquest reports. The autopsy surgeon is PW 8 Dr. Sanjay Purohit.

6. The accused appellant, totally denied having gone to the jungle to collect leaves or having attacked or caused death of two boys.

7. The trial Court relied upon the evidence of kamlesh and Ramkesh and the circumstantial evidence that the clothes of the accused were found blood stained and he had concealed the Hasia and Kulhadi (Axe) which were also blood Stained, and convicted the accused.

8. The only argument of the learned counsel for appellant is that the two eye-witnesses ate child witnesses and conviction should not have been based only on their testimony.

9. We have perused the testimony of Kamlesh and Ramkesh and the surrounding circumstances. Kamlesh is aged about 14 years at the time of incident. He is of sufficient mature understanding. Similar is the case of Ramkesh who is aged about 11 years, at the time of occurrence. We find no infirmity in their testimony. Nothing has been brought out in cross examination. Their testimony is in fact supported by the fact that the 4 boys had gone with this accused to collect leaves. The accused was aged about 22 years and so he was their leader in collecting the leaves. P.W. 2 Lakhan Singh has stated that they had gone to collect leaves. They had collected leaves and prepared bundles. The bundles of leaves were found lying at the scene of crime. That supports the fact that they had gone to collect leaves. The bodies were found at the spot where the bundle of leaves were lying. The witnesses have no reason to speak false against this accused appellant. The medical evidence supports the facts that Hasia and Axe were used to attack the two innocent boys of tender ate. The statement of two witnesses Kamlesh and Ramkesh appears totally truthful and natural. The FIR was made on their statement by P.W. 2 Lakhan Singh and it corroborates them. It was made next day after the incident at 6.30 p.m. that is after about 24 hours. The police stations was 30 kms. away. It is a jungle area where the incident occurred. P.W. 2 had first gone to the jungle to see the bodies. It was already night time. The next day he went to the Police Station Devri. We do not find any false involvement or attempt for the same. The recovery of blood stained weapons as also blood stained clothes at the instance of the accused is an important circumstantial evidence, in this case. Even, apart from that the statements of Ramkesh and Kamlesh are believable. The delay in lodging the FIR in this case does not have any negative effect on the reliability of the prosecution witnesses as in those jungle areas, such delays cannot be helped by those who report it. The mere fact that the witnesses are boys of 11 and 14 years respectively, does not in any manner discredit them. Their version is natural. They are of sufficient understanding and memory. They have no enmity with this accused. They are supported by the fact that these boys had gone with the accused to pick leaves in jungle. So we find that the appellant has rightly been convicted for the offence of murder of two innocent boys at their tender age that is 13 and 15 years respectively, without rhyme and reason. He was aroused by simple fact that the boys were thirsty and wanted to return home against the dictate of the accused.

10. The only question is whether the death penalty is warranted against this appellant ? The trial Court found it to be a cruel murder of innocent boys. It cannot be doubted that this is a cruel and mindless murder by the accused. But it also appears to be an impulsive act without caring for innocence and immature age of the victims. But it is not a case of per-planning or wreaking vengeance on anybody. It appears to be a simple case where the boys would not agree to the dictate of the accused and his anger was evoked. He behaved most cruelly on defenceless boys. Still we are of the opinion that this case does not fall in the category of the rarest of rare-case which is the test laid down by the Apex Court in the case of Bachan Singh v. State of Punjab, cited at AIR 1980 SC 898 : (1980 Cri LJ 636). The trial Court was wayed by certain judgment of Apex Court cited in AIR 1987 SC 1721 : (1987 Cri LJ 1885) titled Asharfilal v. State of U.P. where death penalty was held justified in case of brutal murder of two innocent girls. The trial Court was of the opinion that the accused was of such a mental make up who commits murder without any rhyme and reason and so the lives of the citizens are not safe so long as he is alive, hence the sentence.

11. We are of the view that although there is brutality involved in these murders of two innocent boys, yet it is a case of impulsive murder without any thought or motive. A murder of this type even thought there are more than one murder does not fall in the category of ‘rarest of rare’, at least when the scope of ‘rarest of rare’, the benefit should go to the convict. So we are of the view that severe penalty of death sentence should not be resorted to in this case. So, we convert the sentence into life imprisonment in place of death sentence.

12. As a result of the above finding and discussion, the reference is dismissed. The appeal is accepted partly regarding sentence. The conviction of the appellant for the charge of murders of two boys punishable under Section 302, I.P.C. is confirmed. However, his sentence is altered from death sentence to life imprisonment no both counts of murder. The appellant shall undergo the sentence of imprisonment for both the charges of murders respectively. However, the sentences shall run concurrently.

Reference dismissed.