http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: ALLAUDDIN MIAN & ORS. SHARIF MIAN & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT13/04/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR 1456            1989 SCR  (2) 498  1989 SCC  (3)   5        JT 1989 (2)   171  1989 SCALE  (1)945

ACT:     Criminal   Procedure   Code,  1973:  Section   235   and section   354(3)--Sentence--Decision--Sentencing  court   to approach  question  seriously--Endeavour  to  see  that  all relevant facts and circumstances bearing on sentence brought on record--Sentence of severity imposed-Imperative for Judge to indicate basis  ’Special reason clause’ in death sentence cases indicates obligation to explain choice of sentence.     Indian Penal Code, 1860: Sections 34, 141, 149--Unlawful assembly--Fastening   of  vicarious  responsibility   on   a member--Prosecution to prove act was done in prosecution  of common object of assembly.

HEADNOTE:     Accused  Nos. 1 to 6, constituting an unlawful  assembly the common intention of which Was to kill Baharan Mian, came to his house armed with deadly weapons. Baharan Mian, appre- hending  trouble,  ran inside Co arm himself  but  his  wife prevented  him from coming out again. At that time,  Baharan Mian’s two infant daughters, Sahana Khatoon aged about seven years  and Chand Tara aged about seven months, were  playing in the ’dalan’ of his house. Failing in their object to kill Baharan  Mlan, accused No. 1 gave farsa blows on  the  head, abdomen  and  left thumb of Sahana Khatoon  causing  serious injuries, and accused No. 2 gave one farsa blow on the  head of infant Chand Tara. As a result of these injuries,  Sahana Khatoon  died  the same day while Chand Tara died  after  28 days.     Accused Nos.1 and 2 were charged under sections 302, 452 and  148 I.P.C., whereas accused Nos. 3 to 6 were sought  to be  held  vicariously liable under  section  302/149  I.P.C. Accused Nos. 3 and 4 were further charged under sections 447 and  148, I.P.C. and accused Nos. 5 & 6 were  charged  under sections  447  and  147, I.P.C. The  Trial  Court  convicted accused Nos. 1 and 2 on all the three counts and awarded the sentence of death to both of them for the commission of  the offence punishable under section 302, I.P.C. Accused Nos.  3 and  4 were convicted under sections 302/149, 447  and  148, I.P.C.  and for the offence under section 302/149,  each  of them was directed to suffer imprison- 499

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

ment  for  life. Accused Nos. 5 and 6 were  convicted  under sections 302/149, 447 and 147, I.P.C. For the offence  under sections  302/149,  I.P.C., they were sentenced  to  undergo imprisonment for life.     The  High Court dismissed the appeal of accused  Nos.  1 and  2  and, while accepting the  reference,  confirmed  the sentence of death awarded to them for the murder of the  two infant  girls. The conviction of the remaining four  accused under  section  302/149 was, however,  altered  to  sections 326/149  and the sentence of imprisonment for life given  to each  of  them  was substituted by a  sentence  of  rigorous imprisonment  for  seven years. Their convictions  and  sen- tences on the other counts were, however, maintained:     Before  this  Court it was contended on  behalf  of  the appellants that (1) the evidence adduced by the  prosecution was not reliable; (2) Even on the facts found proved by  the courts  below, accused Nos. 1 to 6 could not be held  guilty of  murder with the aid of section 149, I.P.C. as the  kill- ings  of the two girls was outside the common object of  the unlawful assembly; (3) the facts of the case did not warrant a death penalty in the case of accused Nos. 1 and 2, more so because the procedural requirement of section 235(2) of  the Cr.  P.C.  was not followed in letter and  spirit;  and  (4) section 302, I.P.C., and section 354(3), Cr.P.C., insofar as they permit the imposition of the death penalty were  viola- tive of Articles 14, 19 and 21 of the Constitution of India.     While  partly  allowing the appeals  by  converting  the sentence  of  death in the case of accused nos. 1 and  2  to imprisonment for life under section 302, I.P.C., and setting aside  the conviction of accused nos. 3 to 6  under  section 326/149 I.P.C., the Court,     HELD:  (1) There is no substance in the contention  that the  prosecution  evidence is unreliable and should  not  be acted  upon  for confirming the conviction  of  the  accused persons. [508B-C]     (2) If the prosecution did not examine some persons  who were  admittedly  present  at the scene  of  occurrence,  on learning that they were won over, it cannot be said that the prosecution  was  unfair to the accused  persons.  The  non- examination  of  these persons cannot affect  the  probative value of the evidence of other prosecution witnesses. [508F]     (3)  Section 149. I.P.C., creates a.  specific  offence. Since  this section imposes a constructive penal  liability, it must be strictly construed. [509G] 500     (4) It is not the intention of the legislature in enact- ing section 149 to render every member of an unlawful assem- bly liable to punishment for every offence committed by  one or  more of its members. In order to invoke section  149  it must be shown that the incriminating act was done to  accom- plish the common object of the unlawful assembly. Even if an act  incidental to the common object is committed to  accom- plish the common object of the unlawful assembly, it must be within  the knowledge of other members as one likely  to  be committed  in prosecution of the common object. If the  mem- bers of the assembly knew or were aware of the likelihood of a particular offence being committed in. prosecution of  the common  object they would be liable for the same under  sec- tion 149. I.P.C. [510F-H]     (5) What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly  or was one which the members knew to be likely  to be  committed.  There  must be a nexus  between  the  common object  and the offence committed, and if it is  found  that the  same  was committed to accomplish  the  common  object,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

every  member  of the assembly will become  liable  for  the same. [509H; 510A-B]     (6) In the instant case, the common object of the unlaw- ful assembly, as alleged in the charge, was to kill  Baharan Mian.  When accused Nos. 1 and 2 realised that Baharan  Mian was beyond their reach. they. frustrated at their failure to accomplish  their  mission,  wielded their  weapons  on  the innocent  girls, which was no part of the common  object  of the unlawful assembly. For accomplishing their common object it  was not necessary to kill the two girls who were  not  a hinderance  to  accused  Nos. 1 and  2  accomplishing  their common  object.  Accused Nos. 3 to 6 cannot,  therefore,  be convicted for the injuries caused to the two minor girls  by accused Nos. 1 and 2, with the aid of section 149. [511A-B]     (7) Section 302, I.P.C, casts a heavy duty on the  Court to choose between death and imprisonment for life. When  the Court is called upon to choose between the convict’s cry  ’I want  to live’ and the prosecutor’s demand ’he  deserves  to die’, it goes without saying that the Court must show a high degree  of concern and sensitiveness in the choice  of  sen- tence. [511D-E]     (8)  In  our justice delivery system  several  difficult decisions  are  left  to the  presiding  officer,  sometimes without providing the scales or the weights for the same. In cases of murder, however, since the choice 501 is  between  capital punishment and life  imprisonment,  the legislature  has  provided a guideline in the form  of  sub- section  (3) of section 354 of the Code of  Criminal  Proce- dure, 1973. [511E-F]     (9)  When  the law casts a duty on the  Judge  to  state reasons  it follows that he is under a legal  obligation  to explain his choice of the sentence. It may seem trite to say so  but the existence of the ’special reason clause’ in  the above  provision  implies that the Court can  in  fit  cases impose  the  extreme penalty of death  which  negatives  the contention  that there never can be a valid reason to  visit an  offender  with the death penalty, no matter  how  cruel, gruesome or shocking the crime may be. [512A-C]     (10)  Where  a sentence of severity is  imposed,  it  is imperative  that  the Judge should indicate the  basis  upon which  he considers a sentence of that magnitude  justified. Unless  there are special reasons, special to the  facts  of the particular case, which can be cataloged as justifying  a severe  punishment,  the  Judge would not  award  the  death sentence. If a Judge finds that he is unable to explain with reasonable  accuracy the basis for selecting the  higher  of the  two  sentences,  his choice should fail  on  the  lower sentence. [512D-E]     (11)  The  choice of the sentence has to be  made  after following  the procedure set out in sub-section (2) of  sec- tion  235  of the Code. Since the provision is  intended  to give  the accused an opportunity to place before  the  Court all  the relevant material having a bearing on the  question of  sentence,  there can be no doubt that the  provision  is salutary and must be strictly followed. [513D, H; 514A]     (12) The requirement of hearing the accused is  intended to satisfy the rule of natural justice. In the case of  life or  death, the presiding officer must show a high degree  of concern  for the statutory right of the accused  and  should not treat it as a mere formality to be crossed before making the  choice of the sentence. If the choice is  made  without giving  the  accused an effective and  real  opportunity  to place  his  antecedents,  social  and  economic  background, mitigating  and extenuating circumstances, etc.  before  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

Court, the Court’s decision on the sentence would be vulner- able. [514C]     (13)  A sentencing decision taken without following  the requirements  of sub-section (2) of section 235 of the  Code in letter and spirit may have to be replaced by an appropri- ate  order.  In the instant case, the Trial  Court  actually treated it as a mere formality as is evident from 502 the  fact  that  it recorded the finding of  guilt  on  31st March,  1987, and on the same day before the  accused  could absorb and overcome the shock of conviction they were  asked if  they  had anything to say on the question  of  sentence. Immediately  thereafter  the  decision  imposing  the  death penalty on the two accused was pronounced. [514B, E]     (14)  As a general rule, the Trial Courts  should  after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place  the  relevant  material bearing on  the  question  of sentence before it and thereafter pronounce the sentence  to be imposed on the offender. [514F-G]     (15) In the instant case, the Trial Court did not attach sufficient  importance to the mandatory requirement of  sub- section (2) of section 235 of the Code. The High Court  also had  before  it only the scanty material placed  before  the Sessions Judge when it confirmed the death penalty.  Absence of particulars of ancedents of accused, their socio economic conditions, the impact of their crime on the community, etc. makes the choice of punishment difficult. [514G-H]     (16)  It  is necessary that the  maximum  sentence  pre- scribed  by law should be reserved for ’the rarest of  rare’ cases  which  are  of an exceptional  nature.  Sentences  of severity  are  imposed  t9 reflect the  seriousness  of  the crime,  to  promote  respect for the law,  to  provide  just punishment for the offence, to afford adequate deterrent  to criminal  conduct and to protect the community from  further similar conduct. [515G]     (17) In the instant case, unfortunately the material for choice  of sentence is scanty. The motive for the  crime  is obscure,  the  one stated. namely, the quarrel  between  two infants  of  both sides, does not seem to  be  correct.  The killings were not for gain. The change shows that the target was  Baharan Mian, the father, and not the two infants.  The killing  of the two infants was not in the contemplation  of any  of the accused. Both the girls were the victims of  the offenders’  ire resulting from frustration at the escape  of their  target. There is nothing so uncommon about the  crime as  to make the case an exceptional one. The mere fact  that infants are killed, without more, is not sufficient to bring the case within the category of ’the rarest of rare’  cases. [516C-E]     Bachan  Singh v. State of Punjab, [1980] 2 SCC 684;  and Machhi Singh v. State of Punjab, [1983] 3 SCC 470,  referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 343 and 446 of 1988. 503     From the Judgment and Order dated 8.4.1988 of the  Patna High  Court in Crl. A. No. 140 of 1987 and Death Ref. No.  3 of 1987 and Crl. A. No. 136 of 1987.     R.K. Garg, Salman Khurshid, Rakesh Luthra, Irshad Ahmad, Vinayak D. Phadke, Mrs. Bimla Sinha and Gopal Singh for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

Appellants.     A. Sharan, D. Goburdhan, D.N. Goburdhan and B .B.  Singh for the Respondent. The Judgment of the Court was delivered by     AHMADI,  J. The appellants in these two appeals by  spe- cial  leave are the six accused persons who  were  arraigned before  the learned Third Additional Sessions Judge,  Siwan, for  trial. Criminal Appeal No. 343 of 1988 is  by  original accused Nos. 1, 2, 3 and 5 (Allauddin Mian, Keyamuddin Mian, Saheb Hussain and Afzal Mian) and Criminal Appeal No. 466 of 1988_is  by  original accused Nos. 4 and 6 (Sarif  Mian  and Mainuddin  Mian). For the sake of convenience we will  refer to them by their original positions in the Trial Court.     AccuSed Nos. 1 and 2 were charged with the commission of offences punishable under Sections 302, 452 and 148,  I.P.C. The  prosecution  case was that accused Nos. 1 and  2  along with  accused Nos. 3 to 6 constituted an unlawful  assembly, the common object of which was to kill PW 6 Baharan Mian and in  pursuance  of the said object accused No. 1  caused  the death  of Sahana Khatoon aged about seven years and  accused No.  2  caused  the death of Chand  Tara  aged  about  seven months.  Accused  Nos. 1 and 2  were  substantively  charged under Section 302, I.P.C., whereas accused Nos. 3 to 6  were sought to be held vicariously liable under Section  302/149, I.P.C.  Accused  Nos.  3 and 4 were  further  charged  under Sections 447 and 148, I.P.C., and accused Nos. 5 and 6  were charged  under Sections 447 and 147, I.P.C. The Trial  Court convicted  accused Nos. 1 and 2 on all the three counts  and awarded  the sentence of death to both of them for the  com- mission of the offence punishable under Section 302,  I.P.C. Each of them was also sentenced to suffer rigorous imprison- ment for one year on each count under Sections 148 and  452, I.P.C.  The substantive sentences were directed to run  con- currently.  Accused Nos. 3 and 4 were convicted  under  Sec- tions  302/149, 447 and 148, IPC and for the  offence  under Section 302/149 each of them was directed to suffer  impris- onment  for  life. For the offences under Sections  148  and 447,/.P.C., they 504 were directed to suffer rigorous imprisonments for one  year and  three months, respectively. The  substantive  sentences were ordered to run concurrently. Accused Nos. 5 and 6  were convicted  under Sections 302/149, 447 and 147,  I.P.C.  For the  offence under Section 302/149, I.P.C., they  were  sen- tenced  to  undergo imprisonment for life  whereas  for  the offences punishable under Sections 447 and 147, I.P.C., they were  directed  to suffer rigorous imprisonments  for  three months  and six months, respectively. The  substantive  sen- tences were ordered to run concurrently. Since accused  Nos. 1 and 2 were awarded the death penalty a reference was  made to the High Court which came to be numbered as Reference No. 3  of 1987. Accused Nos. 1, 2, 3 and 5 preferred an  appeal, Criminal  Appeal No. 140 of 1987, challenging their  convic- tions  and  sentences awarded to them by  the  Trial  Court. Accused  Nos. 4 and 6 preferred a separate appeal,  Criminal Appeal  No. 136 of 1987, against their convictions and  sen- tences  by the Trial Court. The said reference and both  the appeals  were  disposed of by the High. Court  by  a  common judgment.  The  High Court dismissed the appeal  insofar  as accused Nos. 1 and 2 are concerned and, while accepting  the reference,  confirmed the sentence of death awarded to  them for  the murder of two the infant girls. The  conviction  of the remaining four accused under Section 302/149 was, howev- er, altered to Section 326/149 and the sentence of imprison- ment  for  life given to each of them was substituted  by  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

sentence  of  rigorous imprisonment for seven  years.  Their convictions and sentences on the other counts were, however, maintained.  Feeling aggrieved by the convictions  and  sen- tences  awarded  to  them on different counts  all  the  six accused  persons have preferred the present two  appeals  by special leave.     Briefly  stated  the  prosecution case is  that  on  the afternoon  of  25th July, 1985 around 4.30 p.m.  when  PW  6 Baharan  Mian was sitting at the entrance of his house,  the aforesaid six accused persons came from the west armed  with deadly weapons; accused Nos. 1 and 2 were carrying ’farsas’, accused  Nos.  3 and 4 were armed with spears  (bhalas)  and accused  Nos.  5 and 6 were armed with sticks  (Lathis).  On seeing them PW 6 got up and went to the ’osra’ (verandah) of his house. Accused No. 3 began to untie the buffalo tethered in front of the house while the other accused persons  show- ered  abuses on PW 6, to which the latter  objected.  There- upon, accused Nos. 4 and 6 shouted ’Sale ko jan se mar  do’. Immediately thereafter, accused Nos. 1 and 2 moved menacing- ly  towards PW 6. The two infants Sahana Khatoon  and  Chand Tara  were then playing in the ’dalan’ outside  the  western room.  On seeing accused Nos. 1 and 2 approaching  him  duly armed with farsas PW 6 apprehended trouble and ran into  the adjoining room to 505 arm  himself with a spear. His wife, PW 5 Laila Khatun,  who was  in the room, however, prevented him from going out  for fear  that he may be done to death by the  accused  persons. Realising  that  PW  6 has entered the inner  room  and  was prevented  by his wife from coming out, accused No.  1  gave farsa  blows on the head, abdomen and left thumb  of  Sahana Khatoon  causing  serious injuries. Accused No. 2  gave  one farsa  blow on the head of infant Chand Tara. The  neighbors PW 2 Ful Mohammad Mian, PW 3 Ali Asgar, PW 4 Vidya Giri  and others,  namely, Jalaluddin Ahmad, Sadik Mian,  Ram  Chandra Prasad, Bhikhari Mian, etc. intervened, pacified the assail- ants  and sent them away. After the assailants had left  the scene  of occurrence the two injured girls were  removed  to the city dispensary where the First Information Report of PW 6  was  recorded at about 6.45  p.m.  Unfortunately,  Sahana Khatoon  died shortly after she was admitted to the  dispen- sary.  Her  younger sister Chand Tara succumbed to  her  in- juries  on  23rd  August, 1985. Immediately  after  the  two injured  were removed to the dispensary for treatment, PW  7 Dr.  Haliwant Singh who examined Sahana Khatoon  noted  that she  had a sharp cutting injury on the anterior half of  the head  causing  a  fracture of cranial bone  with  the  brain substance protruding out, a sharp cutting injury on the left illiao  fossa and a sharp cutting injury on the  left  thumb and left index finger. PW 1 Dr. Anil Kumar Verma, the Senior Assistant  Surgeon  in Siwan Sadar Hospital,  performed  the autopsy on the dead body of Sahana Khatoon on the  afternoon of 26th July, 1985. Since the fact that Sahana Khatoon  died a homicidal death is not in dispute, we need not set out the findings recorded by PW 1 in his postmortem report.  Suffice it to say that in the opinion of PW 1 death was due to shock and  haemorrhage resulting from the injuries caused  to  the victim with the farsa.     The  injured Chand Tara was examined on the same day  by PW 7. He had noticed a sharp cutting injury on the  anterior half of the head slightly to the right of the mid-line  with the brain matter coming out from the posterior half. She was admitted  as  an indoor patient but was discharged  on  13th August,  1985.  A few days later she died  on  23rd  August, 1985. PW 10 Dr. Ahmad performed the autopsy on the dead body

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

of Chand Tara and he found that she had an infected ulcer 3" x  1-1/4" by cranial cavity deep communicated with brain  on the  anteriofrontal portion of the head, On  dissection  the meningities and the brain matter were found to be congested. In  his  view,  the meningitis and  encephalitis  which  had resulted  due to infection resulting from the injury  caused by  a  sharp cutting weapon like a farsa were the  cause  of death. It is evident from the above evidence that Chand Tara also died a homicidal death. 506                   The  finding  that both the girls  died  a               homicidal death is unassailable in view of the               clear evidence of the aforesaid three medical-               men, namely, PW 1, PW 7, and PW 10. The  ques-               tion  then is whether the appellants  are  re-               sponsible for their deaths and if so, to  what               extent?  To bring home the guilt  against  the               six accused persons, the prosecution  examined               five eye witnesses to the occurrence,  namely,               PWs  2  to 6. These five  eye  witnesses  have               unfolded  the  prosecution case that  the  six               accused persons had formed an unlawful  assem-               bly the common object whereof was to kill PW 6               Baharan  Mian.  In pursuance  of  that  common               object  they, duly armed with weapons such  as               farsas,  bhalas and lathis, entered the  resi-               dential  premises  of PW 6 on the  evening  of               25th July, 1985 and committed the acts set out               earlier.  The  courts  below  found  that  the               presence  of PWs 5 and 6 in the house at  that               point  of time could not be doubted.  In  fact               these accused persons had come to the house to               kill  PW 6. PWs 2, 3 and 4 who can be said  to               be  dependable witnesses have  also  supported               the prosecution case as narrated by PWs 5  and               6. The evidence of these prosecution witnesses               stands further corroborated by the evidence of               PW  7 who had seen the wounds on the  two  in-               jured  soon after the incident. PWs 1  and  10               who  performed the post-mortem examination  on               the dead bodies also lend corroboration to the               testimony  of  the eye witnesses.  The  courts               below,  therefore,  recorded  the  convictions               relying  on  the  evidence  of  the  aforesaid               witnesses as set out earlier. In the  backdrop               of  these facts, the learned counsel  for  the               accused made the following submissions:               1. The evidence adduced by the prosecution  to               bring  home  the guilt  against  the  accused,               particularly  the evidence of PWs 2 to  6,  is               not reliable and should not be acted upon.               2.  Even  on  the facts found  proved  by  the               courts below, the four accused persons,  name-               ly, accused Nos. 3 to 6 cannot be held  guilty               of murder with the aid of Section 149,  I.P.C.               as  the killings of the two girls was  outside               the common object of the unlawful assembly               3.  Even if the conviction of accused  Nos.  1               and  2  for  the murder of the  two  girls  is               confirmed,  the facts of the case do not  war-               rant  a  death penalty, more  so  because  the               procedural  requirement of Section  235(2)  of               the  Cr. P.C. was not followed in  letter  and               spirit, and               4.  Section 302, I.P.C., and  Section  354(3),

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

             Cr.  P.C., insofar as they permit the  imposi-               tion of the death penalty are violative of               507               Articles 14, 19 and 21 of the Constitution  of               India.               We will immediately proceed to deal with these               contentions.     The  learned counsel Shri Garg took us through the  evi- dence of the five eye witnesses with a view to satisfying us that their version regarding the incident was not free  from blemish  and  it would be highly unsafe  to  place  implicit reliance  on their evidence. We have  carefully  scrutinised the evidence of the aforesaid five eye witnesses and we  are inclined to think that their evidence was correctly appreci- ated by both the Courts below. The presence of PWs 5 and  6, the  parents of the two victim girls, in the house  at  that point  of  time  cannot be disputed. In  fact,  the  accused persons had constituted an unlawful assembly with a view  to killing PW 6, the father of the two girls. With that  avowed object they went, duly armed with lethal weapons, to  launch an  attack on PW 6. After accused No. 3 had untied the  buf- fallo notwithstanding the protest from PW 6, accused Nos.  4 and  6 gave the call to kill PW 6. Encouraged by  this  call accused  Nos. 1 and 2 moved menacingly towards PW 6 who  was then standing in ’osra’. Realising that accused nos. 1 and 2 were  out to kill him, PW 6 went inside the room to fetch  a bhala  to defend himself. His wife PW 5 who was in the  room sensing  danger  to his life stood in his way  and  did  not permit him to go out and face accused Nos. 1 and 2. PWs 2, 3 and 4 who were neighbours saw the incident from close  quar- ters when accused Nos. 1 and 2 dealt fatal blows with  their farsas to the two girls who were playing in the ’dalan’.  PW 2 who is the brother of PW 6 was in the field to the east of the  house  and  was, therefore, in a position  to  see  the incident. PW 3 was returning from the bazar when he saw  the accused  persons at the door of PW 6. He heard  the  accused persons uttering abuses and the call given by accused Nos. 4 and 6 to kill PW 6. He also saw the accused persons entering the house and going towards the room which PW 6 had  entered to  fetch  a bhala. In the end he saw accused Nos. 1  and  2 inflicting farsa blows on the two girls. He was  cross-exam- ined at length but except for minor contradictions here  and there  which  are only to be/expected when a  witness  gives evidence after a lapse of time, nothing substantial  shaking the  substratum  of  the prosecution case  has  surfaced  to discredit  him.  PW  4 was at the saw mill  of  Ram  Chandra Prasad when he saw the accused persons coming from the  west and proceeding towards the east.-He saw these persons  going to the house of PW 6 and heard them showering abuses. In his cross-examination an attempt was made to show that he  could not  be  present at Ram Chandra Prasad’s saw  mill  at  that hours  since he was a Government Servant and admittedly  his normal duty hours were from 508 10  a.m.  to 5 p.m. Further effort was to show that  he  was connected  with  a case between Bhikhari Dass and  Sita  Ram Prasad  pending  under Section 145, Cr. P.C. in  respect  of possession  of some land. He has also disowned knowledge  of any  dispute  between Bhikhari Dass and  Mainuddin  Mian  in respect of another parcel of land. He was cross-examined  at length  to  prove  that he was an interested  and  a  biased witness.  Even if the evidence of this witness  is  ignored, there is sufficient evidence on record to support the  find- ings  recorded by both the courts below. We are,  therefore, of the opinion that there is no substance in the  contention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

of the learned counsel for the accused that the  prosecution evidence  is not reliable and should not be acted  upon  for confirming the conviction of the accused persons.     It was next submitted by learned counsel for the accused that some of the prosecution witnesses, namely, Jallaluddin, Bhikhari  Mian  and Ram Chandra Prasad who  were  admittedly present at the scene of occurrence according to the prosecu- tion and had witnessed the entire incident were deliberately dropped  with  a view to suppressing the  truth.  We  cannot accept this contention for the simple reason that apart from both PW 5 and PW 6 having deposed that they were pressurised by  the defence the High Court has found in paragraph 36  of its judgment that efforts were made by the defence to  scare away  the  witnessess from giving evidence. There  is  ample material  on record to conclude that  considerable  pressure was  exerted on the prosecution witnesses to stay away  from the witness box. Some succumbed to the threats and  pressure while  some  others did not and displayed  courage  to  give evidence  and  state  the truth. In this  backdrop,  if  the prosecution did not examine Jallaluddin, Ram Chandra  Prasad and  Bhikhari  Mian on learning that they were won  over  it cannot  be said that the prosecution was unfair to  the  ac- cused persons. Mr. Garg submitted that there was nothing  to show  that  the accused persons were in any  way  guilty  of pressurising  or threatening the witnesses. That is  besides the  point.  What is relevant is the fact  it  so  happened. Therefore,  the non-examination of the  aforesaid  witnesses cannot  affect the probative value of the evidence of  other prosecution witnesses.     We  now proceed to consider whether accused Nos. 3 to  6 have been rightly convicted with the aid of Section 149  for the  acts  of  accused Nos. 1 and 2.  Section  141,  I.P.C., defines an unlawful assembly as an assembly of five or  more persons whose common object is to commit any one of the five acts  enumerated  therein. The explanation to  that  section makes it clear that an assembly which was not unlawful  when it assembled, may subsequently become an unlawful assembly. 509 Section  142  states: whoever, being aware  of  facts  which render  any  assembly an  unlawful  assembly,  intentionally joins  that  assembly, or continues in it, is said to  be  a member  of  an unlawful assembly. Section 143 sets  out  the punishment  for  being  a member of  an  unlawful  assembly. Section 144 prescribes the punishment for joining an  unlaw- ful  assembly  armed with deadly weapons. Section  145  pre- scribes  the  punishment  for joining or  continuing  in  an unlawful  assembly  which has been  commanded  to  disperse. Section 146 defines rioting. It says that whenever force  or violence  is used by an unlawful assembly, or by any  member thereof, in prosecution of the common object of such  assem- bly, every member of such assembly is guilty of the  offence of  rioting. Section 147 then prescribes the punishment  for rioting.  Section 148 prescribes the punishment for  rioting by  members  of  an unlawfully assembly  armed  with  deadly weapons. Then comes Section 149 which reads as under:               "If  an offence is committed by any member  of               an  unlawful  assembly in prosecution  of  the               common object of that assembly, or such as the               members of that assembly knew to be likely  to               be  committed in prosecution of  that  object,               every  person who, at the time of the  commit-               ting of that offence, is a member of the  same               assembly, is guilty of that offence." Therefore,  in order to fasten vicarious  responsibility  on any  member  of an unlawful assembly  the  prosecution  must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

prove  that  the  act constituting an offence  was  done  in prosecution of the common object of that assembly or the act done  is  such as the members of that assembly  knew  to  be likely  to be committed in prosecution of the common  object of  that  assembly.  Under this  section,  therefore,  every member  of an unlawful assembly renders himself  liable  for the  criminal act or acts of any other member or members  of that  assembly provided the same is/are done in  prosecution of the common object or is/are such as every member of  that assembly  knew  to be likely to be committed.  This  section creates  a  specific offence and makes every member  of  the unlawful assembly liable for the offence or offences commit- ted  in  the  course of the  occurrence  provided  the  same was/were  committed in prosecution of the common  object  or was/were  such  as the members of that assembly knew  to  be likely  to be committed. Since this section imposes  a  con- structive penal liability, it must be strictly construed  as it  seeks to punish members of an unlawful assembly for  the offence or offences committed by their associate or  associ- ates in carrying out the common object of the assembly. What is important in each case is to 510 find  out  if the offence was committed  to  accomplish  the common  object of the assembly or was one which the  members knew  to  be likely to be committed. There must be  a  nexus between  the common object and the offence committed and  if it  is found that the same was committed to  accomplish  the common  object  every  member of the  assembly  will  become liable  for the same. Therefore, any offence committed by  a member  of an unlawful assembly in prosecution of anyone  or more  of  the  five objects mentioned in  Section  141  will render  his  companies constituting  the  unlawful  assembly liable for that offence with the aid of Section 149,  I.P.C. In  the  present  case, the common object  of  the  unlawful assembly  as alleged in the charge was to kill PW 6  Baharan Mian. To accomplish that objective accused Nos. 1 and 2 went after PW 6. Sensing danger PW 6 ran into the adjoining  room to fetch a spear to defend himself. His wife PW 5,  however, blocked  his  way  and did not permit him to  go  out.  When accused  Nos.  1 and 2 realised that PW 6 was  beyond  their reach, they, frustrated at their failure to accomplish their mission,  wielded  their weapons on the innocent  girls  who were  playing  in the Dalan. The common object  having  thus been  frustrated, accused Nos. 1 and 2 took out their  wrath on the innocent girls which was no part of the common object of the unlawful assembly. It was not necessary to kill these girls  to accomplish their object of killing PW 6  as  these two  girls  had not prevented them from reaching PW  6.  The learned counsel for the accused, therefore, rightly  submit- ted  that  while accused Nos. 1 and 2 can  be  punished  for their  individual  acts committed after  the  common  object stood  frustrated  and  abandoned on PW  6  placing  himself beyond their reach, the other members of the unlawful assem- bly could not be punished for the acts of accused Nos. 1 and 2  as  the killing of the girls was no part  of  the  common object of the assembly. Once PW 6was beyond the reach of his two  tormenters, the common object to kill him  stood  frus- trated  and whatever the individual members  did  thereafter could  not be said to have been done in prosecution  of  the common  object of the assembly. It is not the  intention  of the  legislature  in enacting Section 149  to  render  every member  of  an unlawful assembly liable  to  punishment  for every  offence committed by one or more of its  members.  In order  to invoke Section 149 it must be shown that  the  in- criminating act was done to accomplish the common object  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

the  unlawful  assembly. Even if an act  incidental  to  the common  Object is committed to accomplish the common  object of the unlawful assembly it must be within the knowledge  of other  members as one likely to be committed in  prosecution of  .the common object. If the members of the assembly  knew or  were  aware of the likelihood of  a  particular  offence being  committed  in prosecution of the common  object  they would be liable for the same 511 under Section 149, I.P.C. In the instant case, however,  the members  constituting the unlawful assembly had gone to  the house of PW 6 to kill him. That was the common object of the unlawful  assembly. For accomplishing that common object  it was  not  necessary to kill the two girls who  were  not  an hinderance  to  accused  Nos. 1 and  2  accomplishing  their common  object. We are, therefore, of the opinion  that  ac- cused  Nos.  3  to 6 cannot be convicted  for  the  injuries caused  to the two minor girls by accused Nos. 1 and 2  with the aid of Section 149, I.P.C. We, therefore, set aside  the conviction  under  Section  326/149, I.P.C.,  and  also  the sentence  imposed on accused Nos. 3 to 6 on that count.  We, however, hold accused Nos. 3 and 4 guilty under Sections 447 and  148, I.P.C., and confirm the sentences awarded to  them on those counts. So also we hold accused Nos. 5 and 6 guilty under Sections 447 and 147, IPC and confirm their  sentences for the said offences.     Having  come to the conclusion that Allauddin  Mian  and Keyambuddin Mian are guilty of murder, the next question  is what  punishment should be awarded to them, namely,  whether extinction  of life or incarceration for life. Section  302, IPC casts a heavy duty on the Court to choose between  death and imprisonment for life. When the Court is called upon  to choose  between  the convicts cry ’I want to live’  and  the prosecutor’s  demand  ’he deserves to die’ it  goes  without saying that the Court must show a high degree of concern and sensitiveness  in  the choice of sentence.  In  our  justice delivery system several difficult decisions are left to  the presiding  officers, sometimes without providing the  scales or  the weights for the same. In cases of  murder,  however, since  the  choice is between capital  punishment  and  life imprisonment the legislature has provided a guideline in the form of Subsection (3) of Section 354 of the Code of  Crimi- nal Procedure, 1973 ("the Code") which reads as under:               "When the conviction for an offence is punish-               able  with death or, in the alternative,  with               imprisonment  for life or imprisonment  for  a               term  of years, the judgment shall  state  the               reasons for the sentence awarded, and, in  the               case of sentence of death, the special reasons               for such sentence." This  provision makes it obligatory in cases  of  conviction for  an offence punishable with death or  with  imprisonment for  life or for a term of years to assign reasons .in  sup- port  of  the sentence awarded to the  convict  and  further ordains  that  in case the Judge awards the  death  penalty, "special reasons" for such sentence shall be stated in the 512 judgment.  When the law casts a duty on the Judge  to  state reasons  it follows that he is under a legal  obligation  to explain his choice of the sentence. It may seem trite to say so, but the existence of the ’special reasons clause’ in the above  provision  implies that the Court can  in  fit  cases impose  the  extreme penalty of death  which  negatives  the contention  that there never can be a valid reason to  visit an  offender  with the death penalty, no matter  how  cruel,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

gruesome or shocking the crime may be. Basing his submission on  what  is described as the humanitarian ideology  or  the rehabilitarian  philosophy, Mr. Garg submitted that any  law which permits the supreme right to life being sacrificed for the  failure  of the State to establish a  social  order  in which  such crimes are not committed must be struck down  as offending Articles 14, 19 and 21 of the Constitution.  While rejecting  the demand of the protagonist of the  reformatory theory  for the abolition of the death penalty the  legisla- ture in its wisdom thought that the ’special reasons clause’ should  be a sufficient safeguard against arbitrary  imposi- tion of the extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis  upon which he considers a sentence of that  magnitude justified. Unless there are special reasons, special to  the facts  of  the particular case, which can be  catalogued  as justifying a severe punishment the Judge would not award the death sentence. It may be stated that if a Judge finds  that he  is unable to explain with reasonable accuracy the  basis for  selecting  the higher of the two sentences  his  choice should fall on the lower sentence. In all such cases the law casts  an obligation on the Judge to make his  choice  after carefully examining the pros and cons of each case. It  must at  once  be conceded that offenders  of  some  particularly grossly  brutal crimes which send tremors in  the  community have  to be firmly dealt with to protect the community  from the  perpetrators of such crimes. Where the incidence  of  a certain  crime is rapidly growing and is  assuming  menacing proportions, for example, acid pouring or bridge burning, it may  be necessary for the Courts to award exemplary  punish- ments  to  protect the community and to  deter  others  from committing such crimes. Since the legislature in its  wisdom thought that in some rare cases it may still be necessary to impose  the extreme punishment of death to deter others  and to  protect the society and in a given case the country,  it left the choice of sentence to the judiciary with the  rider that  the Judge may visit the convict with the extreme  pun- ishment  provided there exist special reasons for so  doing. In the face of this statutory provision which is  consistent with  Article 21 of the Constitution which enjoins that  the personal liberty or life of an individual shall not be taken except according to the procedure established by law, we are unable to countenance counsel’s extreme submission of  death in no 513 case.  The submission that the death penalty violates  Arti- cles 14, 19 and 21 of the Constitution was negatived by this Court in Bachan Singh v. State of Punjab, [1980] 2 SCC  684. Mr.  Garg, however, submitted that the said  decision  needs re-consideration  as  the learned  Judges  constituting  the majority did not have the benefit of the views of  Bhagwati, J.  who ruled to the contrary. We are not impressed by  this submission  for  the simple reason that  the  reasons  which prevailed with Bhagwati, J., could not have been unknown  to the learned Judges constituting the majority.     Even a casual glance at the provisions of the Penal Code will  show that the punishments have been  carefully  graded corresponding with the gravity of offences; in grave  wrongs the  punishments  prescribed are strict  whereas  for  minor offences leniency is shown. Here again there is considerable room  for manoeuvre because the choice of the punishment  is left  to  the discretion of the Judge with  only  the  outer limits  stated. There are only a few cases where  a  minimum punishment  is prescribed. The question then is what  proce- dure does the Judge follow for determining the punishment to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

be imposed in each case to fit the crime? The choice has  to be made after following the procedure set out in sub-section (2)  of Section 235 of the Code. That sub-section  reads  as under:               "If the accused is convicted, the Judge shall,               unless  he  proceeds in  accordance  with  the               provisions of Section 360, hear the accused on               the  question of sentence, and then pass  sen-               tence on him according to law." The requirement of hearing the accused is intended to satis- fy  the  rule of natural’ justice. It is a  fundamental  re- quirement  of  fairplay that the accused  who  was  hitherto concentrating on the prosecution evidence on the question of guilt  should,  on being found guilty, be asked  if  he  has anything to say or any evidence to tender on the question of sentence.  This is all the more necessary since  the  Courts are generally required to make the choice from a wide  range of  discretion  in the matter of sentencing. To  assist  the Court in determining the correct sentence to be imposed  the legislature  introduced sub-section (2) to Section 235.  The said provision therefore satisfies a dual purpose; it satis- fies the rule of natural justice by according to the accused an  opportunity of being heard on the question  of  sentence and at the same time helps the Court to choose the  sentence to  be awarded. Since the provision is intended to give  the accused  an  opportunity to place before the Court  all  the relevant material having a bearing on the 514 question  of sentence there can be no doubt that the  provi- sion is salutary and must be strictly followed. It is clear- ly mandatory and should not be treated as a mere  formality. Mr.  Garg  was, therefore, justified in making  a  grievance that the Trial Court actually treated it as a mere formality as is evident from the fact that it recorded the finding  of guilt  on 31st March, 1987, on the same day before  the  ac- cused could absorb and overcome the shock of conviction they were  asked if they had anything to say on the  question  of sentence  and immediately thereafter the  decision  imposing the  death penalty on the two accused was pronounced.  In  a case  of  life  or death as stated  earlier,  the  presiding officer must show a high degree of concern for the statutory tight  of  the  accused and should not treat it  as  a  mere formality  to  be crossed before making the choice  of  sen- tence.  If  the  choice is made, as in  this  case,  without giving  the  accused an effective and  real  opportunity  to place  his  antecedents,  social  and  economic  background, mitigating  and extenuating circumstances, etc., before  the Court, the Court’s decision on the sentence would be vulner- able.  We need hardly mention that in many cases a  sentenc- ing.decision  has far more serious consequences on  the  of- fender  and his family members than in the case of a  purely administrative decision; a fortiori, therefore, the  princi- ple  of fairplay must apply with greater vigour in the  case of  the former than the latter. An  administrative  decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice.  Likewise a sentencing decision taken without  fol- lowing the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and  may  have to be replaced by an appropriate  order.  The sentencing  court must approach the question  seriously  and must  endeavour to see that all the relevant facts and  cir- cumstances  bearing on the question of sentence are  brought on record. Only after giving due weight to the mitigating as well  as the aggravating circumstances placed before it,  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

must pronounce the sentence. We think as a general rule  the Trial  Courts should after recording the conviction  adjourn the matter to a future date and call upon both the  prosecu- tion  as well as the defence to place the relevant  material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present  case,  as pointed out earlier, we are  afraid  that tile  learned Trial Judge did not attach  sufficient  impor- tance  to  the mandatory requirement of sub-section  (2)  of Section  235 of the Code. The High Court also had before  it only the scanty material placed before the learned  Sessions Judge when it confirmed the death penalty. Apart from what we have said earlier, we may now proceed to 515 consider whether the imposition of death penalty on the  two accused  persons  found guilty of murder is  justified.  The Trial  Court  has  dealt with the question  of  sentence  in paragraphs  42  to  44 of its  judgment.  The  reason  which weighed  with the Trial Court is: it is one of  the  gravest cases  of  extreme  culpability in which  two  innocent  and helpless babies were butchered in a barbarous manner.  After taking  note of the mitigating circumstances that  both  the offenders  were married young men with children,  the  Trial Court  found that since the murders were  committed  without provocation and in cold blood there, was no room for lenien- cy  as the crime was so abhorrent that it shocked  the  con- science  of the court. The High Court while maintaining  the conviction of the said two accused persons proceeded to deal with the question of sentence thus:               "The conviction of Allauddin Mian and Keyamud-               din  Mian having been upheld the  question  is               whether  the reference should be accepted  and               the sentence of death against them be  upheld.               In my view Allauddin Mian and Keyamuddin  Mian               have shown extreme mental depravity in causing               serious  fatal injuries to helpless  girls  of               the age of 7/8 years and 7 months. In my view,               therefore, this murder can be characterised as               rarest  of the rare cases. the extreme  mental               depravity  exhibited  by  Allauddin  Mian  and               Keyamuddin  Mian impels me to uphold the  sen-               tence imposed on Allauddin Mian and Keyamuddin               Mian   by  the  learned  Additional   Sessions               Judge."     It  will be seen from the above, that the  courts  below were  considerably moved by the fact that the  victims  were innocent  and  helpless  infants who had  not  provided  any provocation  for  the  ruthless manner in  which  they  were killed.  No  one  can deny the fact that  the  murders  were ghastly. However, in order that the sentences may be proper- ly  graded to fit the degree of gravity of each case, it  is necessary  that  the  maximum  sentence  prescribed  by  law should,  as  observed  in Bachan Singh’s  case  (supra),  be reserved  for  ’the rarest of rare’ cases which  are  of  an exceptional  nature.  Sentences of severity are  imposed  to reflect the seriousness of the crime, to promote respect for the  law,  to provide just punishment for  the  offence,  to afford adequate deterrent to criminal conduct and to protect the  community  from further similar conduct.  It  serves  a three-fold  purpose  (i) punitive (ii) deterrent  and  (iii) protective.  That is why this Court in Bachan  Singh’s  case observed  that  when the question of choice of  sentence  is under  consideration  the Court must not only  look  to  the crime and the victim but also the 516

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

circumstances  of the criminal and the impact of the  crime. on  the  community. Unless the nature of the crime  and  the circumstances of the offender reveal that the criminal is  a menace to the society and the sentence of life  imprisonment would be altogether inadequate, the Court should  ordinarily impose the lessor punishment and not the extreme  punishment of  death  which should be reserved  for  exceptional  cases only. In the subsequent decision of Machhi Singh v. State of Punjab,  [1983] 3 SCC 470 this Court, after culling out  the guidelines  laid down in Bachan Singh’s case, observed  that only  in  those exceptional cases in which the crime  is  so brutal, diabolical and revolting as to shock the  collective conscience  of  the community, would it  be  permissible  to award the death sentence. In the present case, unfortunately the  material for choice of sentence is scanty.  The  motive for the crime is obscure, the one stated, namely, the  quar- rel  between two infants of both sides, does not seem to  be correct.  The killings were not for gain. The  charge  shows that  the target was PW 6, the father, and not the  two  in- fants. The killing of the two infants was not in the contem- plation  of  any  of the accused. Both the  girls  were  the victims of the offenders’ ire resulting from frustration  at the  escape  of their target. There is nothing  so  uncommon about the crime as to make the case an exceptional one.  The mere  fact  that infants are killed, without  more,  is  not sufficient  to  bring the case within the category  of  ’the rarest of rare’ cases.     In  Bachan  Singh’s  case the question  of  laying  down standards for categorising cases in which the death  penalty could  be  imposed was considered and it was  felt  that  it would be desirable to indicate the broad guidelines consist- ent  with section 354(3) of the Code without  attempting  to formulate rigid standards. That was because it was felt that standardisation of the sentencing process would leave little room  for judicial discretion to take account of  variations in culpability even within the same category of cases. After referring  to the aggravating circumstances (Para  202)  and the  mitigating  circumstances  (Para 206)  pointed  out  by counsel, the Court observed that while ’these ,were relevant factors it would not be desirable to fetter judicial discre- tion. It pointed out that these factors were not  exhaustive and  cautioned: ’courts, aided by broad illustrative  guide- lines  indicated by us, will discharge the onerous  function with evermore scrupulous care and human concern’  consistent with Section 354(3) of the Code. In the subsequent  decision in Machhi Singh’s case, the Court tried to indicate the type of cases which may fall within the exceptional class without attempting  to introduce rigidity. It would not be  fair  to read  the decision as an attempt to fetter judicial  discre- tion. Even in cases of the 517 type  indicated in that case, circumstances may vary,  which would  necessitate  a different approach. For  example,  the circumstances  of  this  case show that  the  offenders  had killed  the two girls not because of any hatred for them  or to  accomplish  their objective but out of  frustration  and anger  at  having lost their target.  Unfortunately  as  the trial Judge did not give time to the convicts to reflect  on the question of sentence, the chance, however remote, of the true  motive for the crime surfacing was lost. The  anteced- ents  of  the accused, their socioeconomic  conditions,  the impact  of their crime on the community etc., have not  come on record. The absence of these particulars makes the choice of  punishment difficult. In view of what we  have  observed earlier and having regard to the circumstances in which  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

murders took place, we think the extreme punishment of death is not warranted.     In  the result both the appeals are partly allowed.  The conviction  of accused Nos. 1 and 2 under all the  heads  is confirmed  but  their sentence of death for  killing  Shahna Khatoon  and Chand Tara, respectively, is converted  to  im- prisonment  for  life.  So far as accused Nos. 3  to  6  are concerned, their conviction and sentence under Section  326/ 149,  1.P.C.  is set aside; however,  their  conviction  and sentence  under  the other heads is maintained.  Their  bail bonds  will stand cancelled if they have already served  out their sentences; otherwise they will surrender to their bail and serve out the remaining sentence. The appeals will stand disposed of accordingly. R.S.S.                                      Appeals  allowed partly. 518