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PETITIONER: SHOBHIT CHAMAN & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       04/03/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: WITH CRL. APPEAL NOS. 262-263/98 @ SLP (CRL.) NOS. 3729-30/97 J U D G M E N T S.P. KURDUKAR. J.      The two  condemned prisoners/appellants,  namely,  Shiv Prakash Pandey  (A-1) and Shobhit Chamar (A-2) had initially sent a  petition  through  jail  to  this  Court  which  was registered as Special Leave Petition (Crl.) No. 3576 of 1997 where in leave was granted and a Criminal Appeal No. 1084 of 1997 came  to be  registered. In the meantime, the condemned prisoners filed  Special Leave  Petition (Crl.) Nos. 3729-30 of  1997  through  their  Advocate  against  the  very  same judgment and order of conviction passed by the High Court of Patna, hence  Leave is  granted herein   as well. Since both these Criminal  Appeals are filed by the condemned prisoners challenging the  legality and correctness of the judgment of the High  Court wherein  the  death  sentence  of  both  the appellants for committing six murders is confirmed, they are being disposed of by this common judgment. 2.   The prosecution  story unfolded  at  the  trial  is  as under:-      Jagarnath Pandey  (since deceased)  was the resident if village Tirojpur  under police  station Durgawati,  district Rohtas. He  owned a  house and an agricultural land having a bore well  and a chamber room. The occurrence in the present case took  place in  his residential  house during the night intervening between January 1 and 2, 1989 at about 1.00 a.m. Haridwar Pandey  is the son of Jagarnath Pandey. On the date of incident,  Jagarnath Pandey  and his son Ram Iqbal Pandey (both deceased)  went to  the chamber  (room)  for  sleeping during that  night. Besides  Haridwar Pandey  and Ram  Iqbal Pandey, the  family of  Jagarnath Pandey  was  consisted  of Taranath Pandey, a cousin (since deceased), Mahendra Pandey, nephew (since  deceased), Anil Pandey 10 years old and Sunil Pandey, 8  years old,  grand sons (since deceased) and other female members. They were in the house. After evening meals, all these  persons went  to sleep in their respective rooms. At about  mid night,  Bhajurama Devi (PW 2) who was sleeping in her  room heard the knock on the door and a call from Ram Iqbal Pandey  requesting her to open the door as he the door

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in good  faith but  to  her  surprise,  she  saw  15  to  20 miscreants who  forcibly entered  into the  house. All these miscreants then  started knock  in the  door of a room where Lalmuni Devi  (PW 6),  informant, was  sleeping. By then she realised that  some dacoits had entered into the house. They continued to  knock the  door and  also started  abusing the intimated. When  she opened the door, 4 to 5 dacoits entered into her  room. Lalmuni Devi (PW 6) apprehending danger came out of  the room  and saw 15 to 20 dacoits armed with rifles had entered into her house and thereafter started collecting the valuables  from rooms and putting them into bundles. She then spotted  her father-in-law  Jagarnath  Pandey  and  Ram Iqbal Pandey  in the  courtyard with  their hands  tied from behind. Lalmuni  Devi (PW  6) immediately  took her children and other  family members inside another room called Dumuha. Some of  the dacoits  then started asking the inmates of the house of  disclose where the gun and the ornaments were kept otherwise their  children would  be killed. Lalmuni Devi (PW 6) told  theat she  did not  know  about  the  gun  and  she requested the dacoits not to cause harm to any of the family members. She  identified Shiv  Prakash Pandey (A-1), Shobhit Chamar (A-2)  and Ram Dular who was said to have been killed in encounter during the pendency of trial. 3.   It is  alleged by the prosecution that A-2 then started snatching the  two children,  namely, Anil  Pandey and Sunil Pandey from  Lalmuni Devi  (PW 6) and when she resisted, A-2 assaulted her  with baton  of the  rifle  and  snatched  the children  forcibly  from  her  and  brought  them  into  the courtyard. Shiv  Prakash Pandey (A-1) and Shobhit Chamar (A- 2) then  fired from  their guns killing Jagarnath Pandey and Ram Iqbal  Pandey who  collapsed due to fire arm injuries on the ground and died on the spot. A-2 along with two or three dacoits then  went outside  the house and  after some  time, came back along with Taranath Pandey and Mahendra Pandey who were also  gun down in the courtyard. The two minor children were terribly  scared and when they started weeping, some of the dacoits sad that they be spared. When they were let off, they went  to Lalmuni Devi (PW 6) and sat on her lap. One of the dacoits  then said  that these  children should  to   be spared because  when they  would grow,  they might  take the revenge and,  therefore, they  should also  be finished. A-2 then forcibly  brought the children from Lalmuni Devi (PW 6) in the  courtyard and  thereafter miscreants  fired at them. Both the  children succumbed  to the  fire arm  injuries and died on  the spot.  A-2 was  than enquiring  about  Haridwar husband of  Lalmuni Devi (PW 6) and asked her to call him so that he  would also be killed. A-2 then stated that all male members of the family of Haridwar should be finished so that he would  be satisfied  of taking  revenge of murders of his brother and  a nephew.  During this occurrence, according to the prosecution,  the dacoits  also assaulted Bindu Devi (PW 4) wife  of Ram  Iqbal  Pandey.  After  committing  the  six murders and  assaulting  the  Family  members  of  Jagarnath Pandey, the  dacoits left the house with valuables worth Rs. 12.000/- raising slogans ‘Jai Durga Maa’ 4.   Durgawati police  station is  situated at a distance of 10 kilometers  from the  village Tirojpur . Lalmuni Devi (PW 6) went  to the  police station  at about  6.30 a.m.  on 2nd January, 1989  and loaded  the FIR  (Ex.5). The FIR sets out all the  details naming  Shiv Prakash  Pandey (A-1), Shobhit Chamar  (A-2),   Ram  Dular  (A-3)  and  other  unidentified dacoits. It is then stated therein that Shobhit Chamar (A-2) had nursed  a grudge against her family as he suspected that Haridwar was  responsible for  causing the  murders  of  his brother and nephew.

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5.   After registering  the Crime,  Arun Shukla  (PW 11) who was uncharge  of  Durgawati  police  station  left  for  the village   and    after   reaching   there,   commenced   the investigation. After  carrying out the inquest panchanama on the six  dead bodies,  he sent  them to Bhabhua Hospital for post   mortem   examination.   The   investigating   officer thereafter carried  out the necessary investigation and also recorded  the   statements  of   various  witnesses.   After completing the  investigation, the appellants along with two other acquitted  accused, namely,  Khobhru Chamar  and Narad Chamar were  sent up for trial for offences punishable under Sections 302/149.  380 and  460 of the Indian Penal Code and 27 of the Arms Act. 6.   The appellants  denied the allegations levelled against them and  pleaded that  they were  innocent and did not know anything about  the incident.  They also  pleaded that  they have been  falsely implicated  in the  present crime  due to animosity. They  also brought  on record  the  copy  of  the complaint lodged by Gohni Kaur, the wife of elder brother of A-2 filed  against Haridwar,  Ram Iqbal Pandey and others in connection with  the murder  of her  husband. Certain  other documents were  also brought  on record  to show  the enmity between the family of Haridwar and the accused. 7.   At the  trial, the  prosecution examined  as many  s 13 witnesses, of  whom, Bhajurama  Devi (PW  2), Bindu Devi (PW 4), Lalmuni Devi (PW 6) and Lachhi Devi  (PW 7) were the eye witnesses. Sumitra  Devi (PW  1) was  examined to prove that decoits had forcibly taken away Mahendra Pandey and Taranath Pandey from  her house  and soon  thereafter she  found that they were killed. She disclosed the name of A-1, A-2 AND Ram Dular Chamar  who had  whisked away  them. Dr.  Jai  Shanker Mishra  (PW  9)  was  examined  to  prove  the  post  mortem examination reports  and cause  of  death  of  six  deceased persons. 8.   The trial  court after  careful scrutiny  of  oral  and documentary evidence  on record  vide its judgment and order dated  February  16,  1996  held  the  appellants  guilty  f offences punishable under Sections 302, 302/149, 380 and 460 of the  Indian Penal  Code as  also under  Section 27 of the Arms  Act.   The  trial   court,  however,  found  that  the prosecution had  failed to establish beyond reasonable doubt any of  the charges  against Khobhru  Chamar (A-3) and Narad Chamar (A-4)  and consequently  they were  acquitted.  After herein the  appellants and  their counsel on the question of sentence, the trial court awarded death sentence to both the appellants and  made a  Reference to  the High  Court  under Section 366 of the Code of Criminal Procedure. 9.   This Reference  came to  be numbered as Death Reference No. 1  of 1996  which was  heard along  with Criminal Appeal Nos. 118 and 136 of 1996 filed by the State of Bihar and the appellants respectively. The Counsel for the parties and the appellants on  the question of sentence. Relevant portion of the judgment reads thus:-      "Since both  the accused have faced      the trial  from  being  bar,  hence      both  are   remanded  to   judicial      custody  to  be  produced  on  23rd      February, 1996  when the  case will      be put  up for hearing on the point      of sentence."      Accordingly, the  appellants were produced in the court on the  said adjourned  date.  The  trial  court  heard  the learned Counsel  for the  parties and  thereafter pronounced the order  of sentence.  From the  above facts,  it is  thus clear that the appellants were given sufficient  opportunity

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of being  heard on  the question  of sentence.  No grievance whatsoever in  this behalf  was made either before the trial court or before the High Court. The arguments as regards non compliance of  Section 235(2)  Cr.P.C. was first time sought to be  raised before  us. Learned counsel for the appellants in support  of his  contention drew  our  attention  to  the judgment of  this Court  in Santa Singh Vs. State of Punjab, 1976(4)   S.C.C. 190.  While dealing  with the true scope of Section 235 (2)  Cr.P.C., this Court observed:-      "This  provision   is   clear   and      explicit and  does not admit of any      doubt. It  requires that  in  every      trial before  a court  of sessions,      there must  first be  a decision as      to the  guilt of  the accused.  The      court must,  in the first instance,      deliver a  judgment  convicting  or      acquitting  the   accused.  If  the      accused is  acquitted,  no  further      question  arises.   But  if  he  is      convicted, then  the court  has  to      "hear then  accused on the question      of sentence, and then pass sentence      on him  according to  law". When  a      judgment is rendered convicting the      accused, he  is, at  that stage, to      be given an opportunity to be heard      in regard to the sentence and it is      only after  hearing  him  that  the      court  can   proceed  to  pass  the      sentence."      The court  emphasised that  Section 235(2)  Cr.P.C.  is mandatory and  it must  be complied with in true spirit. Non compliance thereof  would not  be a  mere irregularity which could be cured under Section 465 Cr.P.C. It was a case where the  accused   was  charged   for  double   murder  and  was represented by  a lawyer  throughout the  trial. On  the day judgment was pronounced, the accused was not so represented. The Sessions  Judge pronounced  the judgment  convicting him under Section  302 IPC  and sentenced  him to  death without giving any opportunity to him to be heard on the question of sentence. It  is on  these facts,  the court  fond that  non compliance of  Section 235(2)  Cr.P.C. would  make the death sentence unsustainable. The same view has been reiterated by this Court  in Allauddin  Mian and  others Sharif  Mian  and another Vs. State of Bihar. 1989(3) SCC 5.   It is true that in paragraph 10, this Court observed:-      "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. It  is clearly  mandatory      and should not be treated as a mere      formality."      What had happened in this case was that the trial court recorded the  finding of  quilt on March 31. 1987 and on the very same  day, they  were asked if they had anything to say on the  question of  sentence and immediately thereafter the order of  death sentence  was pronounced.  It  appears  that grievance  as  regards  non  compliance  of  Section  235(2) Cr.P.C. was  made in  the courts  below and  it is  in these circumstances, the  court held  that the  accused  were  not

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given sufficient  opportunity to be heard on the question of sentence and,  therefore,  there    was  non  compliance  of Section 235(2)  Cr.P.C.  was made in the Courts below and it is in  these circumstances,  the court held that the accused were not  given sufficient  opportunity to  be heard  on the question  of   sentence  and,   therefore,  there   was  non compliance of  Section 235(2)  Cr.P.C. The facts of the case before  us   are  entirely   different  and  in  fact  after pronouncing the judgment of conviction on February 16, 1996, both the  appellants were  remanded to judicial custody till 23rd February, 1996 and were given full opportunity of being heard on  the question  of sentence.  The Advocate  for  the appellants was also heard fully on the question of sentence. It is  in these circumstances, we find that the ratio of the above referred  two decisions  of this  Courts will  have no application. The  argument relating  to prejudice thus would not survive. 12.  Learned Counsel  for the appellants then urged that the procedure  followed  in  recording  the  statements  of  the appellants under  Section 313  Cr.P.C. was totally irregular inasmuch as  the material  evidence  and  the  circumstances which were  relied upon  by the  prosecution were not put to them and  resultantly they  were denied  an  opportunity  to explain the  same. It  was, therefore,  contended  that  non compliance of  Section 313  Cr. P.C.  has vitiated the trial and the appellants could not be convicted for any offence. 13.  The statement  of Shobhit  Chamar (A-2)  recorded under Section 313  Cr.P.C of  which a  free translation in English was furnished by his Advocate reads thus:- Q:   Have you  heard the  evidence of  witness.  It  is  the      allegation of  witnesses  that  on  the  night  of  1/2      January, 1989   Shiv  Prakash Pandey,  Shobhit  Chamar,      Khobhare Chamar, Ram Pratap Chamar and Narad Chamar and      other  associated  armed  with  rifle  and  gun  looted      ornaments,  clothes,   cash  from   the  house  of  the      Informant Lalmuni  Devi, situated  in village Tirozpur,      P.S. Durgawati,  Distt. Rohtas,  at present in district      Bhabhua. Have you got to say anything? A:  No Sir. Q:   It is  also alleged by the witnesses that at that time,      place and  date accused  Ram Dular,  Shobhit  and  Shiv      Prakash killed  Jagarnath  Pandey,  Ram  Iqbal  Pandey,      Mahendra Pandey, Taranath Pandey, besides two children,      namely, Anil  Pandey and  Sunil Pandey who were sons of      Haridwar Pandey (all of them) by firing shots. Have you      got anything to say?      A:  No Sir. Q:   It is also alleged by the witnesses that at the time of      occurrence, electric bulb was illuminating in the court      yard of  the house  of informant, in the light of which      (they) recognised  you all.  Have you  got anything  to      say? A:  No Sir. Q:  Do you want to say something in your defence? A:   On  the  day  of  occurrence,  I  was  in  the  village      (Illegible). Because  Haridwar Pandey  had killed three      persons like Ram Kewal etc.. Due to fear of this, I had      left the village.      The statement  of Shiv  Prakash Pandey  (A-1) is almost similar except  the last  question which he had given answer "No Sir". 14.  Relying upon the above statements of the appellants, it was contended by Mr. R.K. Jain, Learned Senior Advocate that the court  had failed  to formulate  the  question  properly inasmuch as  the material  circumstances  appearing  in  the

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evidence of  the prosecution were not put to the appellants. Mr. Jain drew our attention to the decision of this Court in Tara Singh Vs. The State, 1951 SCR 729 and in particular the observations at  page 733.  It was a case where statement of the accused  was recorded  under Section  342 Cr.P.C., 1898. The questions  put to  the accused  were reproduced  in  the judgment which  according to  this Court were not sufficient compliance of  Section 342 Cr.P.C. It is interesting to note that the  Sessions Court  repeated the  same  questions  and answers put  to the  accused at  the committal  stage by the Magistrate. it  was, therefore,  a case  where the  Sessions Court did  not record  the statements  of the  accused under Section 342  of the Cr. P.C. after recording the evidence of the  prosecution   at  trial   and,  therefore,   in   these circumstances, the  court held  that  there  was  breach  of provisions of  Section  342  Cr.P.C.  and  consequently  the conviction and  sentence inflicted  upon the accused was set aside and  the case  was sent back to the trial court for de nova trial.  In the  case before  us, the  prosecution  case mainly  rested upon the ocular evidence of eye witnesses. On conclusion of  the prosecution  evident. the  rial court did put the  necessary questions relating to the evidence of eye witnesses to both the appellants and thereafter recorded the answers given  by them.  It is,  therefore, clear  that  the decision rendered  by this Court in Tara Singh Vs. The State (supra) is clearly distinguishable. 15.  In Rama  Shankar Singh  and others  Vs. State  of  West Bengal. AIR  1962 SC  1239, a  similar  question  arose  for consideration before  this Court  under the   old Code. 1898 and this court observed as under:-      "The examination  by  the  Sessions      Judge   of   the   appellants   was      perfunctory,  but  as  observed  in      Ajmer Singh’s  case, 1953  SCR 418,      (AIR 1953  Sc 76)  every   error or      omission in  complying with  S. 342      does not vitiate the trial. "Errors      of  this   type  fall   within  the      category of  curable irregularities      and the  question whether the trial      has been  vitiated depends  in each      case upon  the degree  of error and      upon whether  prejudice has been or      is likely  to have  been caused  to      the accused."      The Court then observed:-      "Failure   to   comply   with   the      provisions  of   the  S.342  is  an      irregularity; and  unless injustice      is shown to have resulted therefrom      a mere  irregularity is  by  itself      not sufficient  to justify an order      of  retrial.  The  appellate  court      must  always  consider  whether  by      reason of  failure to comply with a      procedural provisions,  which  does      not affect  the jurisdiction of the      court,  the   accused   have   been      materially prejudiced." 16.  In State  of Maharashtra Vs. Sukhdev Singh and another. 1992(3) SCC  700, this  Court had  an occasion to consider a similar question.  It was  a case which mainly depended upon the   identification   of   the   accused,   various   other circumstances forming a chain of circumstantial evidence and the confessional statement. It is in the context, this Court

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ruled that  the court  was duty  bound to  solicit accused’s explanation in  respect of every incriminating material used by the  prosecution against  him irrespective of how weak or scanty the  prosecution evidence  was in  this respect. This appeal was filed by the State of Maharashtra challenging the order of acquittal passed by the trial court against some of the accused  and on  examining the  records, the Court found that there  was non  compliance of  Section 313 Cr.P.C. and, therefore, the  order of  acquittal did  not  call  for  any interference. 17.  In Bhalinder  Singh @ Raju Vs. State of Punjab, 1994(1) SCC 726,  this Court  held that the circumstances not out to the accused while  recording his statement under Section 313 Cr.P.C., cannot  be used  against him. This was a case where prosecution solely  relied upon the circumstantial evidence. This Court,  therefore, came  to  the  conclusion  that  the circumstances which  were not  put to  the accused cannot be used by  the prosecution for holding him guilty in a case of circumstantial evidence.  This decision  again does not help the appellants on the peculiar facts of this case. 18.  Mr. B.B.Singh,  learned counsel for the respondent drew our attention  to the  judgment  of  this  Court  in  Suresh Chandra Bahri Vs. State of Bihar, 1995 Suppl. (1) SCC 80 and other appeals.  This Court  while dealing  with the scope of Section 313 Cr.P.C. held as under:-      "The  provisions  in  Section  313,      therefore, make  it  obligatory  on      the court  to question  the accused      on the  evidence  and  circumstance      appearing  against  him  so  as  to      apprise him the exact case which he      is required  to meet.  But it would      not be  enough for  the accused  to      show   that   he   has   not   been      questioned   or   examined   on   a      particular circumstance but he must      also show that such non-examination      has   actually    and    metrically      prejudiced him  and has resulted in      failure of  justice. In other words      in the  event  of  any  inadvertent      omission on  the part  of the court      to  question  the  accused  on  any      incriminating          circumstance      appearing  against   him  the  same      cannot ipso facto vitiate the trial      unless  it   is  shown   that  some      prejudice was caused to him."      In the  final analysis,  the  Court      observed:      "In  the  facts  and  circumstances      discussed above  it cannot  be said      that any  prejudice was  caused  to      the appellant.  The  contention  of      the   learned   counsel   for   the      appellants in this behalf therefore      has no merit." 19.  In Bijjoy  Chand Potra  Vs. The  State. 1952 SCR 202, a similar question  arose before  this Court  as  regards  the scope of Section 342 of Code of Criminal Procedure, 1898. In this reported decision, only three questions were put to the accused on  the  conclusion  of  the  prosecution  evidence, namely, (1)  what his  defence was s to the evidence adduced against him.  (2) whether he had inflicted injuries on Kumad Patra and  (3) whether  he would  adduce any evidence. While

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considering the challenge to the conviction on behalf of the accused on the ground that relevant prosecution evidence and other materials  relied upon by the prosecution were not put to him under Section 342 Cr.P.C. 1898 the Court observed:-      "To sustain such an argument as his      been  put   forward,  it   is   not      sufficient for  the accused  merely      to show  that he has not been fully      examined as required by Section 342      of the Criminal Procedure Code, but      he  must   also  show   that   such      examination     has      materially      prejudiced him." 20.  We have  perused all  these reported  decisions  relied upon by  the Learned Advocates for the parties and we see no hesitation  in   concluding  that   the  challenge   to  the conviction based  on non  compliance of  Section 313 Cr.P.C. first time  in this  appeal cannot be entertained unless the appellants demonstrate that the prejudice has been caused to them.  In   the  present  case  as  indicated  earlier,  the prosecution strongly  relied upon the ocular evidence of the eye witnesses  and relevant questions with reference to this evidence were  put to  the appellants.  If the  evidence  of these witnesses  is found  acceptable, the conviction can be sustained unless  it is  shown  by  the  appellants  that  a prejudice has  been caused  to them.  No such  prejudice was demonstrated before  us and,  therefore, we  are  unable  to accept the contention raised on behalf of the appellants. 21.  Advertising to  the merits  of the case, at the outset. It needs  to be  stated that  there was  no challenge to the fact that six persons were done to death during the incident in question. The medical evidence in the form of post mortem examination reports  which was  duly proved  by the  medical expert Dr.  Jai Shanker  Misra (PW 9) unmistakably indicated that  deceased   persons  had  sustained  several  gun  shot injuries which caused their instantaneous deaths. The courts below in our opinion have rightly held that six persons died homicidal  deaths   during  the  incident  in  question.  We accordantly uphold  the finding recorded by the courts below in this behalf. 22.  In order to prove the complicity of the appellants, the prosecution principally relied upon the evidence of four eye witness, namely,  Bhajurama Devi  (PW 2), Bindu Devi (PW 4), Lalmuni Devi  (PW 6)  and Lachhi  Devi  (PW  7).  All  these witnesses were  staying in the house of Jagarnath Pandey and they had  witnessed the entire incident in question. Lalmuni Devi (PW  6) lodged  the First  Information  Report  on  2nd January. 1989  at about  6.30 a.m. naming the appellants and Ram Dular  Chamar in  addition to some unidentified dacoits. All these eye witnesses identified the appellants. According to them,  the source  of light  was two electric bulbs which were on/burning  in the  court yard. All these eye witnesses are illiterate  ladies  who  have  lost  their  male  family members. Lalmuni  Devi (PW  6) in her evidence has given the photographic details  as to how the incident took place. She stated that  the appellants  along with  other  unidentified dacoits entered  into the  courtyard  and  gunned  down  six persons two  on each  occasion. They died on the spot due to fire arm  injuries. She  further stated  that she identified three assailants  of whom two are appellants in the light of electric bulbs  which were  on/burning in the courtyard. The First Information  Report lodged  by her  fully corroborates her evidence. 23.  Bhajurama Devi (PW 2) who is the mother of deceased Ram Iqbal Pandey,  has stated  that when she was sleeping in her

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room, during  the night, her son Ram Iqbal Pandey (deceased) knocked the  door and asked her to open it as he was feeling thirsty. When  she opened the door. 20 to 25 dacoits entered into the  house along  with her  son Ram  Iqbal  Pandey  and Jagarnath Pandey (both since deceased) with their hands tied from  behind.   Shobhit  Chamar  (A-2)  and  his  associated inquired about  Haridwar Pandey and the gun and on her reply in the  negative, they  started looting  the  valuables  and assaulted Bindu  Devi  (PW  4).  Suddenly,  A-2  pumped  out bullets from  him gun killing Ram Iqbal Pandey and Jagarnath Pandey on the spot. Both the appellants then went out of the house and  came back along with Taranath Pandey and Mahendra Pandey  who   were  made  to  stand  in  the  courtyard  and thereafter shots  were fired  killing both  of them  on  the spot. The  female members in the house were terribly scarred and they were praying not to kill any of the family members. Anil Pandey  aged about 10 years and Sunil Pandey aged about 8 years  both sons  of Lalmuni Devi (PW 6) were watched from her. Some  of the  miscreants then told their associated not to kill  the children whereupon A-1 asked his associated not to leave  the children  because when  they would  grow, they will take the revenge. In the meantime, the children who had gone to  the mother  were dragged back by the appellants and thereafter Shobhit  Chamar (A-2)  fired at  them as a result thereof,  both   the  children   fell  down  and  died.  The appellants and  their associated  then assaulted some of the inmates who  had sustained  the injuries.  All the  six dead bodies were  found lying in the court yard. This witness war searchingly cross-examined  on behalf  of the appellants but no material  could be  brought on  record to  disbelieve her evidence. The  evidence of  this witness  is absolutely free from any  infirmity and  thus clearly  establishes that  the appellants and  other  associates  entered  into  the  mouse during the  dead hours  of Ist  and 2nd  January, 1981, they were armed  with  fire  arms  having  a  common  object  the eliminate male  members of  the family  of Haridwar  and  in pursuance thereof  they killed  six persons. The evidence of Bindu Devi  (PW 4)  and Lachhi Devi (PW 7) is almost similar and in  their avoidance  they asserted  that they identified the appellants  in the  light that  was burning  on  in  the courtyard.  Their   evidence  in  all  material  particulars support the  evidence of  Bhajurama Devi  (PW 2) and Lalmuni Devi (PW 6). 24.  The court  below have  very carefully  gone through the evidence  of   these  four   eye  witnesses.  We  have  also undertaken the  same exercise  and in our opinion the courts below have  committed no  error whatsoever  in coming to the conclusion  that     during   the  night  in  question.  The appellants along with other cacoits entered into the because of  Haridwar  Pandey  with  deadly  weapons  and  formed  an unlawful assembly  sharing a common object to eliminate male members of family of Haridwar. In prosecution of this common object, the appellants killed six persons two in each lot by using the  fire arms.  The trial  court for  want of  proper identification gave benefit of doubt no Khoohru Chamar (A-3) and Narad  Chamar  (A-4)  and  acquitted  them  of  all  the charges. As  far as  Ram Dular  is concerned,  it was stated that he  was killed  in police encounter during the pendency of  trial   and  hence   trial  abated  against  him.  Other miscreants who  entered into the house during the said night could not  be identified and as a result thereof, they could not be arraigned as accused. 25.  The above  findings recorded  by the  trial  court  and confirmed  by   the  High  Court  do  not  suffer  from  any infirmity.  On  our  careful  consecration  of  evidence  on

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record. We  share and  confirm the  same view. The fact that both the appellants along with other dacoits came armed with deadly weapons during the dead hours would unmistakably snow that they  had come to the house of Haridwar Pandey with the common object  in the  first  instance  to  finish  Haridwar Pandey as  he was  suspected to be the killer of brother and nephew of  Shobhit Chamar  (A-2). Finding  that Haridwar was not available in the house, the appellants and other members of the  unlawful  assembly  committed  the  dacoity  of  the valuable property  and thereafter  Shobhit Chamar (A-2) shot down the  six male  persons of the family of Haridwar Pandey including two innocent children aged about 10 and 8 years. 26.  At this culture, it would be very necessary to refer to the evidence  of Bhajurama Devi (PW 2) who during her cross- examinations on  behalf of A-1 admitted that she did not see any fire arm in the hands of A-1. The evidence  of these  four eye  witnesses is consistent to prove that  A-1 shared  the same  common object with A-2 and other dacoits  who had  entered into  the house  of Haridwar Pandey and  were  insisting  that  whereabouts  of  Haridwar Pandey be  disclosed to them and his gun be handed over. A-1 also actively  participated in  getting Jagarnath Pandey and Ram Iqbal  Pandey with their hands tied from behind into the courtyard and  thereafter A-2  pupped out  bullets from  his rifle. This  evidence has  got bearing  when we consider the sentence to do awarded to A-1. The eye witnesses then stated that the  appellants left  the courtyard  and within a short time came  back along  with  Taranath  Pandey  and  Mahendra Pandey and  forced  them  to  stand  in  the  courtyard  and thereafter A-2 fired at them and gunned down in the presence of the family members. Anil Pandey and Sunil Pandey who were sitting in  the Dumuna  here brought dragging by A-2. Having regard to  the ages  of the  children, some  of the  dacoits asked A-2  to set  them free  and were accordingly freed. In the meantime,  A-1 asked  the miscreants  not to  spare  the children  because  when  they  grow,  they  would  take  the revenge. A-2  and his  associate then  brought the  children forcibly from  the lad  of their  mother Lalmuni Devi (PW 6) and thereafter  A-2 and  his associate punned down them. A-2 then claimed  that they had finished all the male members of Haridwar Pandey  and now  his heard  is  cooled  down.  They thereafter left the place of accedence rejoicing the victory and giving slogans of success in the name of God. 27.  Mr. R.K.Jain, learned Senior Advocate appearing for the appellants, however,  urged that  the prosecution has failed to establish  any common  object/intention on the pat of the appellants to commit the crime in question. He further urged that if  they had  a common  object/intention  to  take  the revenge,  they  would  not  have  spared  the  ladies.  This submission does  not increase  us  in  view  of  the  ocular evidence of the four eye witnesses. 28.  It was  then contended  for  the  appellants  that  the evidence of  four eye  witnesses who  are close relatives of the deceased  persons be  not accepted  as sufficient in the absence of cooperation from independent evidence. He further urged that the relations between A-2 and Haridwar had become strained and  inimical because  A-2 strongly  believed  that Haridwar Pandey  was  responsible  for  the  murder  go  hid brother and  nephew. It  is because  of this enmity, the eye witnesses falsely implicated the appellants at the behest of Haridwar Pandey.  This submission  again is  devoid  of  any merit. The  courts below have very carefully scrutinized the evidence of  four eye witnesses and fount it trustworthy. We are in  agreement with  the appreciation of evidence done by the courts  below and  therefore, we  uphold the  finding as

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regards the complicity of both the appellants in the present crime. 29.  Coming to  the question of sentence, the trial court as well as  the High  court awarded  death sentence to both the appellants having  regard to  their complicity,  the  common object  shared   by  them,   the  degree  of  brutality  and revengeful conduct  exhibited by  them. The  trial court  as well as  the High Court had also referred to the law settled by this  Court on  the question  of death sentence. The High Court while  confirming  the  death  sentence  of  both  the appellants had  referred to  the decision  of  this Court in (1) Bachan  Singh Vs.  State of Punjab. 1980(2) SCC 684. (2) Machhi Singh  Vs. State  of Punjab. 1983 (3) SCC 470 and (3) Dhananjoy Chatterjee  @ Dhana  Vs.. State  of  West  Bengal. 1994(2) SCC 220. After considering the law laid down by this Court in  all these three reported decisions, the High Court held that the present case is one of the rarest of rare case where death  sentence to both the appellants must be held to be the  appropriate sentence. The High Court also considered the  mitigating   circumstances  urged   on  behalf  of  the appellants  against   awarding  the   death   sentence.   In paragraphs 34.  35 and 36. the High Court has summarised the contentions raised  on behalf of the Learned Counsel for the parties and  concluded that the trial court had committed no mistake  in   awarding  the   death  sentence  to  both  the appellants  and   accordingly  accepted  the  Reference  and dismissed the criminal appeals filed by the appellants. 30.  Mr. R.K.  Jain, learned  Senior Advocate  appearing for the appellants   heavily  relied upon  the minority decision rendered by  Bhagwati,  J.  in  the  case  of  Bachan  Singh (supra). Advocating  the view  expressed by Bhagwati, J., he urged that  the present  trend in  the world  is against the death penalty. Moreover, the present crime cannot be said to be the rearers of rare cases. He, therefore, urged that this is not  a fit  case where  the appellants need to be awarded death sentence. In the facts and circumstances of this case, sentence of  life imprisonment  to both the appellants would meet the ends of justice. This argument completely overlooks the   majority    judgment   which    has    accepted    the constitutionality of  the death sentence  in the  rarest  of rare cased. 31.  Having regard  to the evidence of the eye witnesses and the facts  proved in  the present  case we may now deal with the question  of sentence in respect of both the appellant s separately. We  may first deal with the question of sentence awarded to  Shiv Prakash  Pandey (A-1)  has been awarded the death sentence  with the  aid of  Section 145 IPC as also on the basis  of a  general statement  made  by  the  four  eye witnesses that  the  miscreants  had  gunned  down  the  six persons during  the incident  in question.  The evidence  on record discloses  that A-1,  A-2 and  other miscreants  came together along  with Jagarnath  Pandey and  Ram Iqbal Pandey with their  hands tied behind and forced Ram Iqbal Pandey to give a knock on the door under the pretext that he wanted to drink water.  When the door was opened by Bhajurama Devi (PW 2), A-1  and his associates entered into the house. A-1 also exhorted that  no male  number of  Haridwar family should be kept alive. Being a member of an unlawful assembly sharing a common object,  he was  rightly found guilty with the aid of Section 149  IPC   for committing six murders. But, however, Bhajurama Devi  (PW 2) in her evidence has admitted that A-1 was not  having any  fire arm  in his  hands at  the time of entire episode.  Other three eye  witnesses undoubtedly made a general  statement that  A-2 and other miscreants fired at the six  persons who  died on  the spot. The evidence of all

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the four eye witnesses is consistent that Shobhit Chamar (A- 2) had  fired from  his fire  arm on all the six persons who died instantaneously.  In  the  face  of  this  evidence,  a distinction based  on the degree of complicity and brutality will have  to be  drawn which  has got  a  vital  impact  of awarding the sentence. It is well settled while awarding the sentence, the  court has  to bear  in mind the crime and the criminal. Shobhit  Chamar (A-2)  had an axe to grind against Haridwar and his family members as he believed that Haridwar was responsible  for causing  murders  of  his  brother  and nephew. Shiv  Prakash Pandey  (A-1) as  it appears  from the record that  he is  not related to Shobhit Chamar (A-2) and, therefore, he might not be having the same degree of revenge and brutality  as that  of Shobhit Chamar (A-2) had, Keeping this distinction  in mind, in our occasion, the case of Shiv Prakash Pandey (A-1) will not fall in the category of rarest of rare  cases. This  distinction was  over  looked  by  the courts below. We are, therefore, of the considered view that the death  sentence awarded to Shiv Prakash Pandey (A-1) was not justified  having regard  to the facts and circumstances of the  case. His  case would  not all  in the  category  of rarest of  rare cases.  We accordingly uphold the conviction of Shiv  Prakash Pandey  (A-1) under Section 302/149 IPC but however the  death sentence  awarded to  him by  the  courts below is altered to one for life imprisonment. 32.  Coming  to  the  case  of  Shobhit  Chamar  (A-2),  the evidence on record proves beyond every reasonable doubt that he was  the principal  offender/miscreant who fired from his fire arm  on all  the six persons including the two innocent children. He had a deep routed revenge passed upon suspicion about the  murders of  his brother  and nephew  by  Ranidwar Pandey which prompted him to take average against the family members of  Haridwar and  had done  to the extent of killing six persons  belonging the  family of  Haridwar  in  a  most brutal, heinous  and barbaric  manner. Nothing was suggested to the  eye witnesses  on behalf  of A-2  that any  of these deceased persons  had played  any  role  in  committing  the murders of  his brother  and nephew  and at  any rate having regard to  the ages of Anil Pandey and Sunil Pandey it could not be  even remotely  suspected  that  they  could  be  the assailants. Shobhit  Chamar (A-2) wanted not only to teach a lesson to  the family members of Haridwar but also to create a terror  in the  minds of the family members of Haridwar to satisfy his ego and muscle power. A-2 exhibited most inhuman conduct while  rejoicing his victory after commission of the crime. It  is in  this background.  we are of the considered view that  the trial  court as  well as  the High  Court has committed no error in awarding death sentence to him. 33.  Mr. B.B.Singh,  Learned Counsel  for the State of Bihar drew our  attention to  the recent judgment of this Court in Shiv Ram  and another  Vs, State  of  U.P.,  with  connected appeals 1998 (1) SCC 149. This decision to a great extent is similar even on facts. 34.   Mr.  Jain was  unable  to  point  out  any  mitigating circumstance which  could pursued  us  to  alter  the  death sentenced of  A-2. In  our considered view, the courts below were right  in awarding the death sentence to Shobhit Chamar (A-2) as his case clearly falls within the ambit of rarest f rare cases.  We accordingly  confirm the  death sentence  of Shobhit Chamar (A-2). 35.  The convictions  of both the appellants on other courts i.e. under Sections 380 and 460 of the Indian Penal Code are also confirmed.  Conviction and  sentence  of  Shiv  Prakash Pandey (A-1)  under Section  27 of the Arms Act to stand set aside cut,  however, the  conviction and sentence of Sophist

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Chamar (A-2) under Section 27 of the Arms Act is confirmed. 36.  In the result, conviction and death sentence of Shobhit Chamar (A-2)  passed by  the trial  court and  on  Reference confirmed by  the High  Court is  affirmed and  his Criminal Appeal is dismissed. The judgment and order of convection of Shiv Prakash  Pandey (A-1)  under  Section  302/149  of  the Indian Penal  Code cased  by the  trial court  and on appeal confirmed by  the High Court is upheld but however the death sentence awarded  to him by the trial court and on Reference confirmed by the High Court is altered to life imprisonment.