Holding

The Supreme Court upheld the convictions but held that the case does not qualify as "rarest of rare"; therefore, the death sentences were commuted to life imprisonment.

Summary

The appellants, members of a family that had a long-standing feud with their neighbours, entered the victims' house on 26 October 1989 and murdered four persons, including a five‑year‑old child, using weapons such as kulhari and hansia. The trial court and the Allahabad High Court convicted them under IPC Sections 302 and 34 and sentenced them to death, relying on the testimony of a child witness (aged five) and two neighbour witnesses. On appeal, the Supreme Court examined the reliability of the child’s testimony, noting that while child evidence requires greater circumspection, it was sufficiently corroborated by the other witnesses. The Court also applied the "rarest of rare" doctrine from Bachan Singh, concluding that the brutality of the murders, though severe, did not make the case fall within that category, especially given mitigating factors such as the age of the accused and the presence of a mother with a suckling child. Consequently, the Court upheld the convictions but commuted the death sentences to life imprisonment for each appellant and dismissed the writ petition.

Issues considered

The admissibility and reliability of the testimony of a five‑year‑old child witness.
Whether the facts of the case satisfy the "rarest of rare" test for imposing the death penalty under the Bachan Singh doctrine.
Whether mitigating circumstances (age of accused, motherhood) warrant commutation of death sentences to life imprisonment.
Whether the conviction under IPC Sections 302 and 34 is sustainable on the evidence presented.

Legislation cited

Indian Evidence Act, 1872
Indian Penal Code, 1860s. 302, s. 34

Subjects

murdercommon intentionchild witnessdeath penaltyrarest of rare doctrinecommutationIPC 302evidence evaluationmitigating circumstances

Judgment

A PANCHHI AND ORS. ETC.
v.
STATE OF U.P.

AUGUST 19, 1998

B [M.M. PUNCHHI CJI, K.T. THOMAS AND
SYED SHAH MOHAMMED QUADRI, JJ.]

Oiminal Law :

C Indian Penal Code, 1860-Section 302/34-Accused i11cludi11g two
ladie5~Murdeli11g family of four i11cluding child of 5 year.1~Award of Death
Sentence by Sessions Cowt-Conjinned by High Cowt~Evidence of attacks
and cou11ter attacks betwee11 the families plior to the i11cident. possibility of
more ski1111ishes in the past leadi11g to Ve11gla11ce-Hcld, award of altemative
se11te11ce of implisonment for life adequate.
D
Co11victio11 of appellants by Sessions Cowt-Prosecutio11 relying on a
child wit11ess a11d two 11eighbmm'-Findi11g of oial cowt regarding reliability
of testimony-Co1;ft11ned by High Cowt-Held, no scope for e1mr in apprecia-
tio11 of evidence-Appellants cannot escape co11viction.
E
Indian Evidence Act, 187~Evidence of child wit11css-Aged 5
yem:'!-Son of the deceased-Whether could be relied on--Held, the evidence
of child to be evaluated with greater circumspection.

The appellants who had been living adjacent to the house of the
F d~~eased were on inimical terms and underwent petty quarrels. A fortnight
prior to the incident the appellants 2 and 3 had a fight with deceased P.
Thereafter the appellants armed with weapons like kulhadi and hansia
barged into the house of the deceased and killed all the four deceased
including their five year old daughter. Both the Trial Court and the High
G Court concurrently found that the four deceased were murdered by the
four accused out of which one died during trial. Both the Courts held that
in the brutal nature of the perpetration of the murders, extreme penalties
should be imposed and hence death sentence was confirmed. The Trial
Court as well as the High Court ~elied on P.Ws. 1, 3 and 5.

H Before this Court the appellants contended that it is very risky to
40
PANCHHI v. STATE 41

place reliance on the evidence of P.W. 1 being a child witness; that the A
evidence of a child witness is generally unworthy of credence and that the
imposition of extreme penalty for all the accused was not legally justified
in this case since among the three persons one is a septuagenarian, and
other a youth in his prime age and the third a mother with a suckling child,
since this case did not project any special feature as distinguished from
under brutal murder cases inspite of the number of victims being four
B
including a child; and that the number of victims is not sufficient to make
the case so special as to foreclose the next alternative sentence i.e. im-
prisonment for life.

Disposing of the appeals, the Court c
HELD : 1. P.Ws. 3 and 5 were admittedly neighbours. The fact that
they did not see all what happened inside the house of the deceased is no
reason to take their evidence lightly because when they saw all the appel-
_> lants sitting inside the house var!ously armed and they also saw that all of
them returning from the house after che incident with blood soaked D
weapons it is correct that the High Court has rightly concurred with the
findings of the Trial Court regarding reliability of the testimony of the three
witnesses. There is no scope to contend that there was any serious error in
the appreciation of the evidence. [45-G-H]

2. The law is that the evidence of a child witness must be evaluated
E.
more carefully and with greater circumspection because a child is suscep-
tible to be swayed by what others tell them and thus a child witness is an
.. ..- easy prey to tutoring. Courts have laid down that evidence of a child witness
must find adequate corroboration before it is relied on. It is more a rule of
practical wisdom than law. [45-C-D] F

- f!rakash & Anr. v. State of Madhya Pradesh, [1992] 4 SCC 225; Baby,
Kandayanathil v. State of Kera/a, [1993] Suppl. 3 SCC 667; Raja Ram Yadav
& Others v. State of Bihar, AIR (1996) SC 1613 and Dattu Ramrao Sakhare
and Others v. State of Maharashtra, [1997] 5 SCC 341, referred to.
G
5. Brutality of the manner in which a murder was perpetrated may be
a ground but not the sole criterion for judging whether the case is one of
the 'rarest of rare cases' as indicated in Bachan Singh 's case. In a way every
murder is brutal, and the difference between one from the other may be one
account of mitigating or aggravating features surrounding the murder. The H
42 SUPREME COURT REPORTS (1998] SUPP. l S.C.R.

A incidents which happened on earlier occasions between members of the two
rival families are indicative of the intensity of the bitterness which prevailed
between them. The brutality with which the murders were committed by the
assailants which include two ladies is indicative of the fact that more
skirmishes would have happened prior to the incident which would have
B escalated the simmering thirst for vengeance to reach boiling point. The
present case cannot be treated as one of the "rarest of rare cases" where the
lesser sentence is not at all adequate. The sentence of death penalty is
altered to one of sentence of imprisonment for life to each of the appellants.
[47-H, 48-A-D]
Bachan Singh v. State of Punjab, [1980] 2 SCC 684; Machi Singh &
C Ors. v. State of of Punjab, [1983] 3 SCC 470 and Allaudin Mian & Ors. v.
State of Bihar, [1989] 3 SCC 5, referred to.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 333-35 of 1998 Etc.

D From the Judgment and Order dated 17.2.98 of the Allahabad High
Court in Capital Case No. 337 of 1997.

R.K. Jain, Ms. Indira Jaising, R.B. Malhotra, Manoj Goel, Ms. N.
Annapoorani, S. Ravindra Bhat, Ms. Anitha Shenoy, Naveen R. Nath, Ms.
E Hetu Arora, Sanjay Ghose, C.D. Singh and AS. Pundir for the appearing
parties.

The Judgment of the Court was delivered by

THOMAS, J. Bad blood which existed between two families living
next door to each other resulted in the extermination of all the adult
F members of one family and the consequent judicial verdict to sent all the
living members of the other family to gallows. Four members of the family
of the accused became killers of four members of the other family irrespec-
tive of gender differences on both sides. A glimpse at the injuries on the
mangled dead bodies would have convinced the on lookers that none
-
G among the victims could have been saved even with most advanced sophis-
ticated medical facilities. Death of all of them would have been instan-
taneous. Such injuries clearly reflected the resolve of the killers that every
one of the victims should have been snuffed out of their worldly existence.

Facts are too brief for elaboration. The house where all the accused
H were living is situate adjacent to the house where all the deceased were
PANCHHI v. STATE [THOMAS,J.] 43
living. First appellant Panchhi and his wife Kalia were the parents of A
second appellant Manmohan and their appellant Smt. Ramshree. Among
the victims deceased Banke Lal was the husband of deceased Pan Kunwar,
his mother Halki was aged 70 and a little female child Sonu aged only 5
then was the daughter of Banke Lal. This quadruple murder took place
during the forenoon of 26th October, 1989, inside and outside the house
of the victims.
B

According to the prosecution story, the two families were on a
warpath for some time and the members of both families chose to indulge
in petty quarrels. Bad blood started fomenting up. A fortnight prior to the
incident two female members of accused family (Kalia and Ramshree ) C
gave a rubbing to Pan Kunwar. Though the matter was reported to the
police there was no abatement of the hostility between the two families. So
Banke Lal and Pan Kunwar retaliated to Ramshree by assaulting her just
six days prior to the occurrence.

Further story of the prosecution is, on the date of occurrence all the D
assailants, armed with weapons like kulhari and hansia, barged into the
house of the deceased at about 10.30 am and unleashed a killing spree.
First target was Banke Lal, on seeing the plight of her son his mother Halki
instinctively leaned to protect him but one of the assailants swished a lethal
weapon on her neck and finished her. Pan Kunwar, wife of Banke Lal, E
made a bid to escape and she jumped out of the house with her little
daughter Sonu. But the bid failed as the assailants rushed out and dealt
deadly blows with weapons on the vital parts of their body. After ac-
complishing their target they retreated to their house.
F
Kalia could not face the trial as she died before its commencement.
The remaining three appellants were tried for the murders of the deceased.
Trial court and the High Court concurrently found that the four deceased
were murdered by the four assailants who are appellants and Kalia. Both
the courts held the view that in the brutal nature of the perpetration of the
murders extreme penalty should be imposed and hence the trial court G
sentenced them to death which was affirmed by the High Court.

It seems, there was initially no move to approach this Court for some
time after pronouncement of the judgment by the High Court in appeal.
But the print media flashed the news that Ramshree (mother of a suckling H
44 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A child) was facing execution of the capital sentence. Some organisations
came forward taking up her cause. However, in the meanwhile appellants
filed the special leave petition and leave was granted by this Court. Execu-
tion of the death sentence was stayed.

We heard Shri RK Jain, learned Senior Advocate who appeared for
B
the appellant and Shri RB Malhotra, learned Senior Advocate for the State
of UP. Smt Indira .Taising, Senior Advocate prayed for allowing National
•
Commission for Women to intervene presumably to bolster up the cause
that Ramshree must be saved from gallows. We could not permit the move
for intervention in this appeal for the obvious reason that under the Code
c of Criminal Procedure National Commission for Women or any other
organisation cannot have locus standi in this murder case.

There cannot be any dispute, nor has it been disputed before us, that
D the four deceased were brutally murdered inside their house on the
forenoon of 26.10.1989. The only area where the dispute was focussed
related to the identity of the assailants, as the appellants have totally denied
their involvement in the matter.

E Prosecution examined PW 1 (Ramkhelawan s/o Bankelal) who was
a child witness. He has stated that while he was taking lunch around 11 am
all the four accused entered his house and killed his father and
grandmother inside the house and the assailants killed his mother and
sister who were out on the Chabutara. Just when the incident started PW
F 1 Ramkhelawan slipped out of house and hid himself in a house of one of
the closest neighbours. Besides that witness, prosecution examined PW3
-·
Lakahnlal and PW5 Shambhu Dayal as witnesses to the occurrence. Ac-
cording to PW3, he saw the four accused entering the house of the
deceased armed with weapons and he saw them while he was standing on
the verandah of a barber shop situated very near to the place of occur-
G rence. He heard tantrums of victims from inside the house of occurrence.
When he neared the Chauraha Gunction) which was located very close, he
G\.
saw Pan Kuwar and Sonu who were standing outside their house, and
within a few seconds the four assailants emerged out of the house and
killed them with the weapons. PW5 also gave evidence almost in the same
H line as PW3 said.
PANCHHI v. STATE [THOMAS, J.] 45

As pointed out above, the trial· court and the High Court placed A
reliance on the evidence of the aforesaid three witnesses and reached the
conclusion that the murders were committed by the three appellants and
Kali a.

Shri RK Jain, learned Senior Counsel, contended that it is very risky
to place reliance on the evidence of PWl being a child witness. According
B
to the learned counsel, evidence of a child witness is generally unworthy of
credence. But we do not subscribe to the view that the evidence of a child
witness would always stand irretrievable stigmatized. It is not the law that
if a witness is a child his evidence shall be rejected, even if it is found
reliable. The law is that evidence of a child witness must be evaluated more c
carefully and with greater circumspection because a child is susceptible to
be swayed by what others tell them and thus a child witness is-an easy prey
to tutoring.

Courts have laid down that evidence of a child witness must find D
adequate corroboration before it is relied on. It is more a rule of practical
wisdom than of law [vide Prakash and Another v. State of Madhya Pradesh,.
[1992] 4 SCC 225; Baby Kandayanothil v. State of Kera/a, [1993] Suppl. 3
SCC 667; Raja Ram Yadav and Others v. State of Bihar AIR (1996) SC 1613
and Dattu Ramrao Saklzare and Othe1:5 v. State of Maharashtra, (1997 (5)
sec 341]. E
PW 1 Ramkhelawan is one of the two survivors in the family (the
... other was a suckling child). It is greatly probable that PWl would have
escaped from the notice of the assailants otherwise he would not have been
spared as is clear from the fact that his younger sister Sonu was also
murdered. His narration of the incident was quite natural though he saw F
only some part of the occurrence. That part is so decisive as to clear all
doubts regarding identity of the assailants.

PW3 and PW5 were admittedly neighbours. The fact that they did
not see all what happened inside the house of the deceased is no reason G
to take their evidence lightly because when he saw all the appellants sitting
inside the house variously armed and they also saw that all of them
returning from the house after the incident with blood soaked weapons.
We have no doubt that the High Court has rightly concurred with the
findings of the trial court regarding reliability of the testimony of the above
three witnesses. There is no scope to contend that there was any serious H
46 SUPREME COURT REPORTS [1998) SUPP. 1 S.C.R.

A error in the appreciation of the evidence. The resultant position is that
none of the appellants can escape conviction under Section 302/34 of the
Indian Penal Code.

The Trial Court and the High Court chose death penalty for the
appellants. Shri RK Jain made a fervent plea that imposition of the extreme
B penalty as for all the accused was not legally justified in this case. Accord-
ing to him, death penalty awarded to the three persons one a sep-
tuagenarian, another a youth in his prime age, and the third a mother with
a suckling child is unwarranted since this case did not project any special
feature as distinguished from other brutal murder cases in spite of the
number of victims being four including a child. Learned counsel contended
C that the number of victims is not sufficient to make the case so special as
to foreclose the next alternative sentence i.e. imprisonment for life.

When the Constitution Bench of this Court, by a majority, upheld the
constitutional validity of death sentence in Bachan Singh v. State of Punjab
D [1980) 2 sec 684, this Court took particular care to say that death sentence
shall not normally be awarded for the offence of murder and that it must
be confined to the rarest of rare cases when the alternative option is
foreclosed. In other words, the Constitution Bench did not find death
sentence valid in all cases except in the aforesaid freaks wherein the lessor
sentence would be, by any account, wholly inadequate. In Maclzhi Singh
E and Others V. State of Punjab, [1983) 3 sec 470 a three judge bench of this
court while following the ratio in Bachan Singh's case laid down certain
guidelines among which the following is relevant in the present case:

"A balance-sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances have
F to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before
the option is exercised."

In Allauddin Mian and Others v. State of Bihar, [1989) 3 SCC 5
G (Ahmadi J. as he then was) speaking for the Bench has stressed the need
that the judge should indicate the basis upon which he considers sentence
of that extreme magnitude justified. It has been observed in the decision
that:

"Where a sentence of severity is imposed, it is imperative that the
H judge should indicate the basis upon which he considers a sentence
PANCHHlv. STATE[THOMAS,.J.] 47
of that magnitude justified. Unless there are special reasons, spe- A
cial to the facts of the particular case, which can be catalogued as
justifying a severe punishment the judge would not award the death
sentence."
)
As for the present case the trial Court advanced the following
reasons in justification of the award of death sentence: B

"The accused were not satisfied by causing two or four injuries and
they made 27 attacks by axes and daranti. The man when turns a
beast from a human being even then there must be a limit of his
revenge but in this case there remained no limit of revenge and
four brutal murders· were committed in the broad day light. This
c
act of the accused was against the normal conduct of the man.
Hence in my opinion it would be proper that the accused be
awarded the death penalty.'' ·

While concurring with the above canclusion learned judges of the D
High court of Allahabad have set down the following reasons:

"The appellants were the next door neighbours of the deceased
persons. They should have lived like good neighbours, but all the
four persons took Kulhari and Hansiya, went inside the house of
Bankey Lal and butchered all the four persons one by one. We E
have seen the injury reports and it is apparent that all the four
persons had been butchered like goat. The persons who have
J.. become so cruel do not deserve any leniency or mercy by the Court.
The attack was deliberate, calculated and the appellants fully knew
what they were doing." F
We have extracted the above·reasons of the two courts only to point
out that it is the savagery or brutal manner in which the killer perpetrated
the acts on the victims including one little child, which had persuaded the

-
two courts to choose death sentence to four persons. No doubt brutally
--. looms large in the murders in this case particularly of the old and also the G
tender aged child. It may be thu.t the manner in which the killings were
perpetrated may not by itself show any lighter side, but that is not very
peculiar or very special in those killings. Brutality of the manner in which
a murder was perpetrated may be a ground but not the sole criterion for
judging whether the case is one of the " rarest of rare cases" as indicated H
48 SUPREME COURT REPORTS [1998] SUPP. l S.C.R.

A in Bachan Singh's case. In a way every murder is brutal, and the difference
between the one from the other may be on account of mitigating or
aggravating features surrounding the murder.

The incidents which happened on earlier occasions between mem-
..J
bers of the two rival families are indicative of the intensity of the bitterness
B which prevailed between them. It was thirst for retaliation which became
the motivating factor. Attacks and counter-attacks between them were
frequent events during the preceding days. There is evidence that six days
before this occurrence two elderly persons of the deceased family (Banke
Lal and Pan Kuwar) attacked the young female member of the accused
C family (Ramshree). The brutality with which the murders were committed
by the assailants which include two ladies makes us to think that more
skirmishes would have happened prior to the incident which would have
escalated the simmering thirst for vengeance to reach boiling point.

We are persuaded to consider that this case cannot be treated as one
D of the "rarest of rare cases" where the lessor sentence is not at all adequate.
Hence we alter the sentence of death penalty by awarding the sentence of

.
imprisonment for life to each of the appellants .

The appeals are disposed of accordingly.

E The Writ Petition is dismissed.

V.M. Appeals disposed and
petition dismissed.