SURESH versus STATE OF U.P.

Citation: [1981] 3 S.C.R. 259 · Decided: 17-03-1981 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Case Partly allowed

Judgment (excerpt)

y 
259 
SURESH 
v. 
STATE OF U.P. 
March 17, 1981 
( Y.V. CHANDRACHUD, C. J. AND A.P. SEN, J.) 
Sentence of death-Whether death sentence is called for has to be examined 
in each case with dispassionate care-Penal Code, section 302. 
Evidence-Trustworthiness of a witness, a child of five years, examined with-
out administering oath by reason of his lack of understanding the sanctity of 
oath. 
Conviction rested not on the evidence of sole eye-witness, a child of five 
years of age but other corroborative evidence. 
The appellant, a starving youth was given shelter by a kindly couple by 
engaging him as a domestic servant. The reward of that kindness was the 
murder of the lady cf the house and her three year old son and causing 
serious injury to her five year old son. The appellant was, therefore, charged 
and convicted under sections 302 and 307 of the Penal Code and sentenced under 
section 307 to imprisonment and to death under section 302. The High Court 
confirmed the death sentence and hence the appeal after obtaining special leave 
of the Court. 
Maintaining the conviction under sections 302 and 307 I.P.C. and the sen-
tence under the latter section, but modifying the death sentence under section 302 
to one of life imprisonment, the Court 
HELD : 1. 
Altering the sentence of the appellant to imprisonment for life 
for the offence under section 302 of the Penal Code, while maintaining the 
sentence under section 307 Penal Code-the two sentences to run concurrently-
will meet the ends of justice, in the instant case, under the following circum-
stances : [267 A-BJ 
(a) He was just about 21 years of age on the date of the offence and, very 
probably, a sudden impulse of sex or theft made him momentarily insensible. 
(b) The evidence of Sunil shows that immediately after the crime, he was found 
sitting in the chowk of the house crying bitterly. (c) Having achieved his pur-
pose, he did not even try to run away, which he could easily have done since his 
injuries were not of such a nature as to incap8citate him from fleeing· from 
an inevitable arrest. (d) Though he was not insane at the time of the offence 
in the sense that he did not know the nature and consequences of what he wao 
doing, still he was somewhat unhinged. 
He was kept in a mental hospital from 
July 19, 1973 to Februnry 2, 1975 where he had shown aggressive symptoms and 
once even attacked another patient. (e) The basic evidence in this case is of a 
child of five who answered many vital questions with a nod of the head, one way 
A 
B 
c 
D 
E 
F 
G 
260 
SUPREME COURT REPORTS 
(I 981] 3 S.C.R. 
A 
or the other. The extreme sentence cannot seek its main support from evidence 
of this kind which, even if true, is not safe enough to act upon for putting out 
a life. (f) Non-availability of the useful data on the question of sentence which 
the trial court proposed to pass due to the trial Judge's failure to ask the appel-
lant what he had to say on the question of sentence and (g) '.the appellant has 
been in jail for ten Jong years and probably would have earned by now the right 
to be released, after taking into account the remissions admissible to him, were 
B 
he sentenced to life imprisonment. [265 E-H, 266A, C-D, G] 
c 
D 
E 
F 
G 
H 
2. The Trial Judge had a safe expedient in section 235(2) of the Code of 
Criminal Procedure, 1973, which he needlessly denied to himself on technical 
consideration that by reason of section 484(2) (a) of the Code section 235 (2) did 
not apply to trials which were pending on the date when the new Code came 
into force. 
The Trial Judge ought to have questioned the appellant on the 
sentence, whether the letter of section 235(2) governed the matter or not. That 
would have furnished to the court useful data on the question of sentenee which 
it proposed to pass. In any case, the trial would not have been invalidated if the 
court were to apply the provisions of section 235 which were introduced into the 
Code, ex debitofusticiae. [266 D-F] 
3. 
A witness who, by reason of his immature understanding. was not 
administered oath and who was privileged, by reason of his years, not to make 
his answers in an intelligible and coherent manner is unsafe to be trusted whole-
sale. Children, in the first place, mix up what they see with what they like to 
imagine to have seen and besides, a little tutoring is inevitable in their case in 
order to lend coherence and consistency to their disputed thoughts which tend to 

Excerpt shown. Read the full judgment & AI analysis in Lexace.