DATE : 10-02-1987   1988-(094)-CRLJ -1380 -MP

JUDGE(S) :  Faizanuddin  S Awasthy  MADHYA PRADESH HIGH COURT

JUDGMENT

FAIZAN UDDIN, J. :- The judgment delivered in this appeal will also govern the disposal of Criminal Appeal No. 1404 of 1985 (Ramnarayan v. The State of M.P.) as well as Criminal Reference No. 7 of 1985 made by the 1st Additional Sessions Judge, Sagar for confirmation of death sentence awarded to the two appellants Mahesh and Ramnarayan in Sessions Trial Nos. 169/84, 170/84, 171/84/, 172/84 and 173 of 1984 decided by the common judgment dt. 30th November, 1985.

2. In Criminal Appeal No. 1403 of 1985, appellant Mahesh has challenged his conviction under S. 302 read with S. 34 of the Penal Code for which he has been awarded death sentence in the Sessions Trials referred to above. In Criminal Appeal No. 1404 of 1985 Ramnarayan who is the father of appellant Mahesh has challenged his conviction under S. 302 read with S. 34 of the Penal Code for which he has also been awarded death sentence in the said Sessions Trials which were all consolidated for the purposes of evidence and judgment.

3. Appellant Ramnarayan father of the appellant Mahesh, and appellant Mahesh both are residents of village Hinota. Both were prosecuted for committing 5 murders on 21-6-1984 at about 6.30 p.m. The persons said to have been killed by the appellants are Pooran, Narbad Bai, Mulabai, (wife and mother of Pooran, respectively), Ku. Nanhibai, daughter of Pooran and one Gulab. All the deceased persons except Gulab were living in a house at village Hinota a part of which had been purchased by appellant Ramnarayan from deceased Pooran about 5 years before the incident. The courtyard of the house of the deceased and that of the appellants were only demarcated by a narrow Mendh. The appellants were alone living in their house as there were no other members in their family. Mst. Janki one of the daughters of deceased Pooran had first taken one Harijan as her husband; but later on she left him and took one Pandit of Damoh as her husband. These facts are not disputed between the parties.

4. The prosecution case was that the appellants used to quarrel very often with the deceased Pooran that his children used to throw cowdung in the part of the courtyard belonging to the appellants. The appellants were also angry with the deceased Pooran on the ground that his daughter Jankibai at first had taken a Harijan as her husband and later on she was living as a keep of one Pandit at Damoh. It is said that about 3 days before the date of incident Jankibai had come to the house of Pooran along with her paramour and stayed in the night with Pooran. When the appellants learnt about it they told Pooran and his inmates of the house that Mst. Janki had taken a Dhanuk, a Harijan as her husband and, therefore, they had converted into a lower caste, as such they should not draw the water from the well. According to the prosecution in the evening of 21st June, 1984, deceased Mst. Narbada Bai along with her daughter-in-law Savitribai (P.W. 2) and her daughter deceased Ku. Nanhibai had gone to the well to draw water. It is said that the appellant Mahesh also went behind them to fetch water from the said well. At the well appellant Mahesh restrained Narbadabai from drawing water from the well but she did not listen to it. Thereupon the appellant Mahesh broke her earthen pot. Mst. Narbadabai returned back home abusing the appellant Mahesh and asked her son Nandram (P.W. 1) to accompany her to the police station. There was some wordy altercation between the appellants on one side and the deceased Pooran and his wife deceased Narbadabai on the other. It is said that the appellant Ramnarayan brought a Ballam and appellant Mahesh an axe from their house. Appellant Mahesh gave an axe blow on the neck of Narbad Bai who fail on the ground. As soon as Narbad Bai fell on the ground, deceased Pooran gave lathi blows to the appellant and asked his deceased daughter Kumari Nanhibai to bring his axe. As soon as Nanhibai brought and gave the axe to deceased Pooran; simultaneously appellant Mahesh gave an axe blow on the neck of Pooran as a result of which axe from the hand of Pooran fell on the ground which was picked by appellant Ramnarayan. Thereafter both the appellants assaulted Pooran and his wife Narbadbai with axe after they had fallen on the ground. Looking this Mst. Mulabai, the mother of Pooran rushed to rescue of both the injured persons but she was also given axe blows by the appellants and she fell dead on the body of Pooran. A neighbour – Gulab Gond then came and asked the appellants as to what they were doing. Thereupon appellants assaulted Gulab Gond also with their axes who also fell dead. Ku. Nanhibai a daughter of Pooran was standing at some distance.

The appellants rushed towards her and killed her also by giving axe blows. Nandram (P.W. 1) son of the deceased Pooran and Mst. Savitribai (P.W. 2) wife of Nandram went into the room and chained from inside in order to save themselves. They saw the incident from inside the room through the space between the two doors. The appellants are said to have tried to open the door in order to kill Nandram and his wife also but the door could not be broken and then the appellants went away. The incident is also said to have been witnessed by Goutam (P.W. 4) youngest son of deceased Pooran by hiding himself nearby. Nandram (P.W. 1) took his wife and children and left them at the house of his brother-in-law and then went to the police station Surkhi where he lodged the first information report (Ex. P-1) at about 9.00 p.m. The appellant Ramnarayan also went to the police station Surkhi at about 9.25 p.m. same day where he lodged the report about this incident (Ex. P-26) stating that he and his son had murdered Pooran, Narbadbai, Mulabai, Gulab and Nanhibai by assaulting them with axes in exercise of right of private defence of person.

5. From the place of incident Ballam was seized as per seizure memo. Ex. P-9 besides the simple blood stained earth. An axe from the appellant Ramnarayan and another from appellant Mahesh were seized. Clothes of the appellants were also seized. The report of the Chemical Examiner (Ex. P-58) indicated blood on the two axes seized from the appellants and their clothes. The report (Ex. P-59) of the Serologist indicated human blood on the axes seized from the two appellants and their clothes.

6. Dr. Anil Khare (P.W. 18) performed an autopsy over the dead body of Mst. Narbadbai and as per his report (Ex. P-60) found the following injuries.

(i) Incised wound 3″ x 2″ bone deep on right arm and its middle 1/3 blood vessels cut (brachial artery and brachial vein were cut.)

(ii) Incised wound 2″ x 1″ muscle deep over the right shoulder.

(iii) Incised wound 4″ x 2 1/2″ bone deep on right side of neck. Great vessels on neck were cut. Trachea having corresponding incised wound on right lateral aspect. An incised wound of 1″ x 1/2″ and similar an oesophegial right lateral border.

(iv) Incised wound on face right side 3″ x 2″ bone deep on right side cutting the nect (sic) of mandible.

All the injuries were ante-mortem and homicidal in nature caused by sharp cutting object. Injuries Nos. 1 and 3 were themselves found sufficient to cause death. Injuries Nos. 2 and 4 had cumulative effect to injuries Nos. 1 and 3 to cause death. In the opinion of the Doctor the cause of death was shock as a cumulative effect of excessive haemorrhage and injury to vital organs like trachea neuro vescular structures.

7. On the same day Dr. Khare (P.W. 18) performed autopsy over the dead body of Nanhibai, with the help of Dr. Arif Khan (P.W. 19) jointly. As per report Ex. P-61 the following injuries were found.

(i) Incised wound on right supra calvicular fossa 3″ x 2″ x bone deep Jugular vein, carotid sheath, muscles and nerves were cut at the same level.

(ii) Incised wound of 2″ x 1/2″ x muscle deep on the back of the chest wall.

These injuries were ante-mortem and homicidal in nature caused by sharp cutting object like an axe. In the opinion of the Doctor the cause of death was shock due to excessive bleeding. The injuries were sufficient in the ordinary course of nature to cause death.

8. On the same day, Dr. H. K. Mali had conducted the post-mortem over the dead body of Mst. Mulabai. Dr. Mali was a Surgeon in District Hospital, Sagar and had gone on deputation. Dr. Khare (P.W. 18) who was acquainted with the writing and signatures of Dr. Mali deposed that Dr. Mali as per his post-mortem report (Ex. P. 62) had found the following injuries on the person of Mst. Mulabai.

(i) Incised wound 3″ x 1″ x bone deep right temporal region obliquely placed.

(ii) Incised wound 3″ x 1″ muscle deep on posterio lateral aspect of neck. Muscles having clotted blood.

(iii) Incised wound of 4″ x 2 1/2″ x bone (verttibral column) deep. Posterio lateral aspect of nape of neck, left side just below injury No. ii Muscles intervening were sharply cut with clotted blood. Body of Vth cervical vertebra sharply cut. Vth cervical vertebra Neck injury unsupported. These injuries were ante-mortem and homicidal in nature caused by hard, sharp and heavy object. In the opinion of the Doctor, these injuries were sufficient in the ordinary course of nature to cause death and the cause of death was shock due to haemorrhage and injury to spinal cord.

9. On 22-6-1984 Dr. Arif Khan (P.W. 19) performed an autopsy on the dead body of Pooran and as per his report (Ex. P. 63) found the following injuries.

(i) Incised wound over the mid neck region extending from front to left lateral aspect measuring 7″ x 3″ x 2 1/2″.

(ii) Incised wound over the scalp mid frontal region measuring 3″ x 1/2″ x bone deep on the table of scalp bone found cut in the line of external wound.

On dissection of Injury No. 1 Trachia was found cut through and through. External jugular vein and carotid vessels found cut through and through. Muscles were also found cut. All the injuries were ante-mortem in nature and were caused by sharp cutting weapon like an axe. These injuries were sufficient in the ordinary course of nature to cause death. In the opinion of the Doctor the cause of death was shock as a result of extensive haemorrhage as a result of cutting of external jugular and carotid vessels.

10. Dr. L. N. Gurjar (P.W. 20) performed an autopsy over the dead body of Gulab on 22-6-1984 and as per his report (Ex. P. 64) he found the following injuries on his person.

(i) Incised wound 10 c.m. x 4 c.m. x brain deep on the left parietal area of the scalp.

(ii) Incised wound 8 c.m. x 4 c.m. x deep up to cervical vertebra cutting the vertebra and spinal cord.

(iii) Incised wound 5 cm x 4 cm x muscle deep on the left supra scapular area of the neck.

(iv) Incised wound 6 cm x 3 cm x muscle deep on the left scapular area of the back.

According to Dr. Gurjar these injuries were caused by sharp edged weapon like an axe, which were sufficient in the ordinary course of nature to cause death instantaneously. The cause of death was shock due to the injuries to the spinal cord and brain.

11. At the trial, both the appellants abjured their guilt and pleaded that they are innocent. They pleaded that they had acted in exercise of right of private defence of person. In their defence the appellants examined Dr. A. K. Saraf (D.W. 1) and appellant Ramnarayan also examined himself on oath as D.W. 2. On evaluation of evidence, learned trial Judge rejected the plea of defence and found the appellants guilty under S. 302 read with S. 34 of the Penal Code for the reasons recorded by the learned trial Judge and awarded death sentence. Learned trial Judge has made Criminal Reference No. 7 of 1985 to this Court for confirmation of death sentence awarded to the two appellants. The two appellants have also preferred separate appeals against their conviction and sentence as stated earlier.

12. It is an admitted fact that deceased Pooran and his family members lived in a half portion of a house, the other half of which was occupied by these two appellants. The courtyard in front of their part of the house was demarcated only by a Mendh which is hardly one cubit in height. It is also an admitted fact that Jankibai, daughter of deceased Pooran had left her husband and taken one Dhanuk Harijan as her husband and later on became a keep of a Pandit of Damoh. The evidence on record shows that the appellants were annoyed because of this with deceased Pooran and his family members. Another cause of annoyance of two appellants was that the children of Pooran’s family used to throw cowdung on the courtyard of the appellants and there was often exchange of abuses between the deceased Mst. Narbadbai, wife of deceased Pooran and the appellant Ramnarayan. A few days before the incident Jankibai, daughter of Pooran had come and stayed with Pooran which was also a cause of annoyance of the appellants as appellant Ramnarayan had objected to her coming to Pooran’s house. The evidence on record further goes to show that the appellants treated Pooran and his family members as persons of lower caste because Jankibai had taken Dhanuk Harijan as her husband.

13. As regards the complicity of the appellants in the incident of murder of the 5 persons referred to above, there is overwhelming eye-witness account of the incident. Nandram (P.W. 1), the son of deceased Pooran and Narbadbai, Mst. Savitribai (P.W. 2), wife of Nandram, Goutam. (P.W. 4), 7 years old son of deceased Pooran, Devi Singh (P.W. 5) a neighbour and Baijnath (P.W. 6) are the eye-witnesses, whose presence at the place of occurrence at the relevant time cannot be doubted. Nandram (P.W. 1) categorically deposed that in the evening of the date of incident, his mother deceased Narbadbai, his sister deceased Nanhibai and his wife Savitribai (P.W. 2) had gone to the well to bring water. Appellant Mahesh abused them and threw the earthen pot. His mother Narbadbai came back home and appellant Mahesh also came following her. His mother, deceased Narbadbai asked him to accompany her to the Surkhi police station to lodge the report. Nandram further stated that appellant Mahesh brought an axe and appellant Ramnarayan brought a ballam. Appellant Mahesh gave an axe blow on the neck of his mother Narbadbai as a result of which she fell on the ground. When his mother fell on the ground, his father deceased Pooran asked his younger sister deceased Nanhibai to bring his axe and as soon as Nanhibai brought an axe and gave it to Pooran, appellant Mahesh gave an axe blow to deceased Pooran as a result of which the axe from the hand of Pooran fell down which was picked up by appellant Ramnarayan and thereafter appellants Ramnarayan and Mahesh both assaulted Pooran with axe. Nandram (P.W. 1) further deposed that when his grandmother Mulabai rushed to the rescue of deceased Pooran she too was dealt with axe blows by the appellants and, therefore, Mulabai fell dead on Pooran. Nandram (P.W. 1) then stated that since he was in fever, his wife Savitribai (P.W. 2) dragged him into the room of the house and chained it from inside but he continued to see the incident outside from the space between the doors. He deposed that he saw from inside that when deceased Gulab came from his house saying that the appellants had murdered all, both the appellants assaulted him with their respective axes resulting into his death. His sister Nanhibai was standing at the corner of the house but the appellants killed her also by assaulting with axes. Thereafter appellant Mahesh knocked the door with blunt side of his axe where Nandram and his wife were hiding themselves. The door could not be opened and thereafter the appellants went away. After the appellants had left the scene of occurrence Nandram (P.W. 1) and his wife Savitribai (P.W. 2) both came out of the room and saw the dead bodies of his father Pooran, mother Narbadbai, grandmother Mulabai, neighbour Gulab and his younger sister Nanhibai. He then went and lodged the report (Ex. P. 1). Almost similar is the evidence of Savitribai (P.W. 2) who also deposed that when appellant Mahesh gave an axe blow on the neck of her mother-in-law Mst. Narbadbai, she fell on the ground and her father-in-law deceased Pooran assaulted the appellant Ramnarayan and Mahesh with lathi.

14. Jagdish Prasad (P.W. 3) is Patwari who had prepared the map (Ex. P. 2) of the place of occurrence. He deposed that he had gone into the room where Nandram (P.W. 1) and Savitribai (P.W. 2) had hidden themselves and seen the later part of the occurrence. He deposed that one can very well see outside from the space in between the doors. Goutam (P.W. 4) the youngest son of deceased Pooran deposed that he had seen that two appellants assaulting the deceased persons with their axes. Devisingh (P.W. 5) is a witness residing opposite to the house of deceased Pooran and the appellants. He deposed that in the evening of the date of the incident wife of Pooran, his daughter and daughter-in-law had gone to fetch water and later Mahesh had also gone to the well where appellant Mahesh told the ladies to remove their pots from the well. Ladies replied that they will remove after they draw the water and that he heard from his house the sound of breaking the pot. Thereafter deceased Narbadbai went towards her house abusing and saying that her pot was broken. He further deposed that Narbadbai asked her son Nandram to accompany her to lodge the report. In the meanwhile, appellant Mahesh came abusing. Deceased Pooran also came and enquired as to what had happened. At this the appellant Ramnarayan accosted to beat them. Appellant Mahesh and Ramnarayan then brought their axe and ballam. Deceased Pooran brought a lathi from his house. Appellant Mahesh gave an axe blow to Narbadbai. At this, deceased Pooran gave lathi blows to the appellants and asked his daughter Nanhibai to bring his axe. As soon as Nanhibai brought the axe and gave it to Pooran, appellant Mahesh gave an axe blow on the neck of Pooran as a result of which the axe from the hand of Pooran fell down which was picked up by appellant Ramnarayan. When Mst. Mulabai came rushing, appellant Mahesh gave her also axe blow and she fell down on the body of Pooran. When Gulab Gond came and criticised the appellants for their cruel act. Both the appellants assaulted him with their axes who also fell dead. Nanhibai was standing at the corner of the house weeping but she too was attacked by Mahesh and killed by axe blows. Witness Baijnath (P.W. 6) also corroborated by stating that deceased persons were killed by the appellants with their axes. There is nothing on record to disbelieve the eye-witness account of these witnesses. We find them truthful. Their evidence conclusively established that the two appellants are the perpetrators of ghastly crime of killing five innocent persons for nothing.

15. Learned counsel for the appellants submitted that the appellants had simply acted in exercise of their right of private defence of person as both the appellants were first assaulted by the deceased Pooran and other members of his family as is evidenced from the injury reports (Ex. D. 1 and Ex. D. 2) of the appellants proved by the evidence of Dr. Saraf (D.W. 1). He, therefore, urged that the appellants were justified in assaulting the deceased persons with their respective axes. He submitted that at the most the appellants may be convicted for exceeding their right of private defence of person. On scrutiny of the evidence, we find that this contention is wholly devoid of any merit and, therefore, must be rejected.

16. It is true that in the same incident, the appellants Ramnarayan and Mahesh both had sustained some injuries but all those injuries were simple in nature and superficial as deposed by Dr. Saraf (D.W. 1) himself. According to Dr. Saraf all the simple injuries to both the appellants were caused by hard and blunt object which by itself falsified the statement of the appellant Ramnarayan who examined himself on oath as D.W. 2, to support the defence. Appellant Ramnarayan as D.W. 2 admitted to have made a report (Ex. P. 26) of the incident in the police station but he contradicted himself the contents of the said reports on material facts. In the report (Ex. P. 26) Ramnarayan, appellant, had stated that his son appellant Mahesh had broken the earthen pot of Narbadbai who came back to her house abusing them. When he was inside the room Nandram (P.W. 1) son of Narbadbai came and gave axe blow on his head, and deceased Pooran gave a lathi blow to him, and then he asked his son appellant Mahesh to beat them and it is thereafter that appellant Mahesh assaulted the deceased persons. But while deposing on oath as D.W. 2 appellant Ramnarayan though admitted that he had made the report (Ex. P. 26) deposed that deceased Narbadbai and her son Nandram, (P.W. 1) both had assaulted him with axe and that this fact he had stated while making the report, which, in fact, is not in the report. The medical evidence discussed above also does not indicate that any of the appellants had sustained any axe injury. The defence story is, therefore, wholly false and fabricated that the appellants assaulted in exercise of their right of private defence. There is clear and unambiguous evidence that deceased Pooran was having a lathi and he assaulted both the appellants with his lathi only when his wife Mst. Narbadbai was assaulted with axe by the appellant Mahesh and she had fallen dead on the ground. In these circumstances, it was but natural for deceased Pooran to use his lathi. Thus the superficial injuries on the person of the appellants are fully explained by the prosecution.

17. This brings us to the question as to what sentence be awarded to the appellants under S. 302 of the Penal Code in view of the facts and circumstances of the present case in which the appellants brought untimely end of 5 innocent persons.

18. It is unfortunate that evil of untouchability was still prevalent in some parts of our country even after 38 years of independence and 30 years of coming into force of the Untouchability (Offences) Act, 1955, which is evident by the facts of the instant case. Indeed it is a matter of great concern that very often there occur grave occurrences including group murders resulting into untimely deaths of innocent persons by those who still believe in touchabiliy as their way of life. The present case is one of those gravest killings, and ghastly murders of 5 persons by the appellants who deserve condemnation by awarding severest punishment provided under the law.

19. It may be pointed out that it is clear from the evidence that the incident occurred when due appellant Mahesh had broken the earthen pot of the deceased Narbad Bai at the well on the ground that the appellants treated Pooran and his inmates of the lower caste because Jankibai, one of the daughters of Pooran had taken a Harijan as her husband. The deceased Narbad Bai had simply asked her son Nandram to accompany her to the police-station to make a report. At this stage there was some exchange of abuses when appellant Ramnarayan accosted his son appellant Mahesh to open assault on the Dheemers. Thus without any provocation from Pooran or by any member of his family, appellant Mahesh gave an axe blow on the neck of deceased Narbadbai and thereafter deceased Pooran too was assaulted first by appellant Mahesh with his axe and thereafter both the appellants assaulted Pooran and his wife Mst. Narbad Bai. The appellants were not satisfied with the killings of these two persons. When the old lady Mst. Mulabai, the mother of deceased Pooran came from inside begging the appellant as to what they were doing, she too was killed by giving axe blows by the appellants. Not only this when the neighbour Gulab came asking the appellants that they were murdering all he too was assaulted by both the appellants with their respective axes who also succumbed to his injuries on the spot. So much so that even Nanhibai a young girl aged about 14 years who was standing near bathing place at the corner of the house was also not spared. The appellant Mahesh gave an axe blow to her who fell down at some distance and died. The appellants seem to be so much blood thirsty that they tried to knock and break open the door of the room where Nandram (P.W. 1) and his wife Savitribai (P.W. 2) were hiding to save themselves to avoid meeting the same fate and when the door could not be broke opened, the appellants went away.

20. We are aware that normally awarding of extreme penalty under S. 302 of the Penal Code is an exception and the death penalty should be awarded only in rarest of the rare cases. The facts of the present case eloquently speak that the act of the appellants in killing 5 innocent persons was extremely brutal, revolting and gruesome which shocks the judicial conscience. In the present case there are no mitigating circumstances whatsoever. We shall, therefore, be failing in our duty, if we do not take into account seriously the brutality of the act and the degree of criminality and gravity of the offence in imposing the punishment which may tend to undermine the respect for law. In such shocking nature of crimes as the one before us which is so cruel, barbaric and revolting, it is necessary to impose such maximum punishment under the law as a measure of social necessity which may work as a deterrent to the other potential offenders. Failure to impose the extreme penalty in such killings committed with extreme brutality which we think is the rarest of the rare cases would not meet the ends of justice. For the reasons aforesaid, in our view, the death penalty to both the appellants would be the only appropriate punishment.

21. In the result, Criminal Appeal No. 1403 of 1985, (Mahesh v. State of M.P.) and Criminal Appeal No. 1404 of 1985, (Ramnarayan v. State of M.P.) fail and are hereby dismissed. Criminal Reference No. 7 of 1985 made by the First Additional Sessions. Judge, Sagar is allowed and the death sentence awarded to the two appellants Mahesh and Ramnarayan is hereby confirmed.

Appeal dismissed.