Criminal Appeal No 169 of 1987
From the Judgment and Order dated 1181986 of the Allahabad High Court in Criminal Appeals No 583 892 896 of 1985 and Capital Reference No 2 of 1985
724 Shakeel Ahmad for the Appellants
The Judgment of the Court was delivered by SEN J
Appellants Asharfi Lal and Babu who are real brothers are under sentence of death on their conviction under section 302 read with section 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 section 307 read with section 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
The remaining appellants Ganga Prasad and Hemraj two sons of Asharfi Lal and Mata Badal son of Babu have been convicted under section 302 read with section 149 of the Indian Penal Code for having committed the two murders in further ance of the common object of their unlawful assembly and each of them sentenced to life imprisonment
They have also been convicted under section 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 section 145 of the Code of Criminal Procedure 1973 on a report made by Smt
Bulakan PW 1
To wreak their vengeance the appellants effected an entry on the night between August 1314 1984 into the courtyard of the adjoining house where the three ladies were sleeping on three different cots
The testimony of Smt
Bulakan PW 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 pressing down her legs while appellant Babu repeatedly struck her with a gandasa and severed her neck
The girl died almost instanta neously her head hung down the cot partially attached to the neck
Bulakan further deposes that appellant Ashar fi 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
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 PW 2 which was some 30 40 paces away
She narrated the incident to Kandhai who immediately ran and informed Bhag wati Prasad Pandey PW 3 who resided some 200 paces away
The Village Pradhan Bhagwati Prasad Pandey PW 3 accompa nied by some of the villagers arrived at the house of Smt
Bulakan and saw the 725 deceased Kumari Sumati lying dead on the cot and Kumari Kalkanta lying unconscious in a pool of blood on another cot
She subsequently died in the hospital
Learned counsel for the appellants made no endeavour to challenge the conviction of the appellants for having com mitted various offences with which they were charged and rightly so
The conviction of the appellants rests on the unimpeachable and truthful evidence of Smt
Bulakan who was herself the victim of the murderous assault as conoborated by PW 2 Kandhai and PW 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 estab lished in evidence that immediately after the occurrence she named all the assailants
The first information report Exh
Ka 1 lodged by Bhagwati Prasad Pandcy PW 3 the Village Pradhan contains the names of the assailants
The 1st Additional Sessions Judge Barabanki by his judgment and sentence dated August 23 1985 convicted the two appellants Asharfi Lal and Babu under section 302 of the Indian Penal Code on two counts of murder and awarded them capital punishment
He also convicted Ganga Prasad and Hemraj two sons of Asharfi Lal and Mata Badal son of Babu under section 302 read with section 149 and sentenced each of them to undergo life imprisonment
All the appellants have also been convicted under section 148 of the Indian Penal Code
The High Court by its judgment dated August 11 1986 on a careful consideration of 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 the applicable law it was satisfied that this was one of the rarest of the 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 crime out of greed and personal ven geance and deserve the extreme penalty
This case fails within the test rarest of the rare cases  as laid down by this Court in Bachan Singh vs State of Punjab as elaborated in the later case of Machhi Singh vs State of Punjab The punishment must fit the crime
These were cold blooded brutal murders in which two innocent girls lost their 726 lives
The extreme 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 section 302 of the Indian Penal Code
It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother Smt
Bulakan is nothing but death
As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants Asharfi Lal and Babu is confirmed
The appeal is dismissed accordingly
NPV Appeal dis missed


Summary:
The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural property between PW 1 and the appel lants two real brothers and their three sons the appel lants effected entry on the night of 1314 8 1984 into the courtyard of the adjoining house where PW 1 and her two daughters
were sleeping and brutally attacked them with gandasas and a 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 and her right hand was chopped off with the gandasa and she died later in the hospital
PW 1 was struck on the face and upper part of the body with the gandasa
She ran from the house through the village abadi and narrated the incident to PW 2 who in turn informed PW 5 the Village Pradhan
After visit ing the scene of offence PW 3 filed a First Information Report
The appellants were tried and the two brothers were convicted 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 convicted under Section 148 of the Indian Penal Code
723 The High Court affirming the conviction and sentences awarded to the two brothers observed that it was satisfied that this was one of the rarest of the rare cases  where death penalty was the only appropriate sentence which ought to be imposed on them
Dismissing the appeal this Court HELD 11 It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment
726B 12 The punishment must fit the crime
The present cases were cold blooded brutal murders in which two innocent girls lost their lives
The extreme brutality with which the appellants acted shocks the judicial conscience
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother is nothing but death
725H 726B C 13 Failure to impose 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 Section 302 of the Indian Penal Code
726A B 14 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed
726C 15 The two appellants were guilty of a heinous 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
725G H Bachan Singh vs State of Punjab 1980 SCC 684 and Machhi Singh vs State of Punjab referred to