04 May 1964
Supreme Court


Case number: Appeal (crl.) 30 of 1964






DATE OF JUDGMENT: 04/05/1964


CITATION:  1965 AIR  202            1964 SCR  (8) 133  CITATOR INFO :  F          1968 SC1438  (4)  RF         1971 SC2381  (4)  RF         1972 SC1309  (3)  RF         1973 SC   1  (6)  R          1973 SC 863  (13)  R          1974 SC 902  (38)  R          1976 SC1449  (15)  R          1977 SC 472  (24)  RF         1978 SC1647  (6)  MV         1982 SC1325  (69)  RF         1983 SC 305  (5)  RF         1992 SC1751  (2)

ACT: Criminal   Appeal-Appeal  by   special   leave-Scope-Murders committed by village faction constituting unlawful assembly- Sentence of death, if and when can be passed-Appreciation of evidence-Test  -Validity  Prosecution-It  must  examine   an witnesses cited.

HEADNOTE: Forty   persons   belonging  to  a   village   faction   and constituting  an  unlawful  assembly were put  up  on  trial before the Additional Sessions Judge under s. 302 read  with s.  149 of the Indian Penal Code and other sections  thereof for murdering 5 persons of the other faction with guns.  The trial  Judge  found 35 of them guilty and  sentenced  10  of them,  who  carried  fire arms, to death  and  the  rest  to imprisonment for life.  Three appeals were preferred by  the convicted  persons  to the High Court and the  sentences  of death came up for confirmation under s. 374 of the (1)  L.R. 59 I.A. 2o6. 134 Code  of Criminal Procedure.  The High Court acquitted 7  of the  appellants  and, concurring with the  findings  of  the trial  court,  dismissed  the  appeals  of  the  rest.    It confirmed  the sentences of death passed on the  10  accused persons.  The appeals to this Court were preferred by  those 10 and 6 others by special leave. HELD:-(i)  In  criminal  appeals  under  Art.  136  of   the



Constitution  involving  sentences  of  death  it  would  be improper to refuse to consider relevant pleas of fact or law on  the ground that they had not been taken before the  High Court.  when any such point had actually been urged and  not considered  by  the  High Court, the  party  urging  it  was entitled as a matter of right to obtain a decision from this Court.   Even  otherwise no hard and fast rule can  be  laid down prohibiting such pleas being raised in such appeals. (ii).It -would be unsound to lay down as a general rule that every  witness cited by the prosecution must be examined  by it even though his evidence was not very material or he  was known to have been won over or terrorised. (iii).....Evidence of a witness could not be discarded  only on the ground that he was a partisan or interested  witness, particularly  in  cases  of murder committed  by  a  village faction, such mechanical rejection would invariably lead  to failure of justice. (iv).It was not improper for a criminal court having a large number  of offenders and victims to deal with to  adopt  the test that the conviction of any particular accused could  be sustained  only if a particular number of witnesses  gave  a consistent  account against him.  Such a test,  even  though mechanical, was not unreasonable. (v)..Punishment  prescribed  by s. 149 of the  Indian  Penal Code  was  in a sense vicarious and that  section  does  not necessarily require that the offence must have been actually committed  by  every member of the unlawful  assembly.   The observations  of this Court in Baladin v. State of U.P.  had to  be  read in the context of that case and  could  not  be treated as laying down an unqualified proposition of law. Baladin  v.  State of Uttar Pradesh, A.I.R. 1958  S.C.  181, explained. (vi) It was....not correct to say that if a person was found guilty of murder under s......302/149 of the Indian Penal Code and  it was not shown that he himself.....had committed the murder, no sentence of death could be inflicted on him. Dalip   Singh  v.  State  of  Punjab,  [19541  S.C.R.   145, distinguished. (vii).....There  was  no  error in  the  exercise  of  their discretion by the courts below in the present case in making a distinction between the ten persons who carried fire  arms and  were  sentenced to death and the others,  who  did  not carry  fire  and were sentenced to  imprisonment  for  life, under a common charge under ss. 302/149. I35 (viii)....Regard  being  had  to the  circumstances  of  the present  case, the ends of justice would be properly  served if  the  sentences  of death passed  on  the  three  accused persons  aged  18, 23 and 24, who had  joined  the  unlawful assembly  under  pressure of their elders were  modified  to life sentences.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 30-34 of 1964. Appeals  by special leave from the judgment and order  dated October  22,  1963 of the Allahabad High Court  in  Criminal Appeals Nos. 77 and 78 of 1963. M....S.  K. Sastri, for the appellant (in Cr.  A. No. 30  of 1964).



I. ..M. Lall and Ganpat Rai, for the appellants (in Cr. A.   No. 31 of 1964). V....’Y.  Sawhney,  for  the appellants  (in  Cr.   A.  Nos. 32--34/64). 0....P.  Rana,  Atiqur Pehman and C. P. Lal,  for  the  res- pondents- May, 4. 1964.  The Judgment of the Court delivered by GAJENDRAGADKAR,  C.  J.  - Forty person  were  charged  with having committed several offences the principal one of which was  under section 302 read with S. 149 of the Indian  Penal Code.  The case against these persons was tried by the first Additional  Sessions  judge at Jhansi.   The  other  charges framed  against them were under s. 307 / 149, 201/ 149 &  SI 1,  395,  396, 149 & 449, 1. P. C. The learned  trial  Judge held  that none of the char-es had been proved against  five of  the accused persons.  ’.He -also found that the  charges under  sections  395 & 396 were not proved  against  any  of them.  In regard to the remaining charges. he found that  35 out  of  40  accused persons were  guilty.   For  the  major offence  charged under s. 302/149, he sentenced  10  accused persons to death and 25 others to imprisonment for life.  He also  directed that the said accused persons should  undergo different terms of imprisonment for the remaining  offences; but   for  the  purpose  of  the  present  appeals,  it   is unnecessary to refer to them. 136 After the learned trial Judge pronounced his judgment on the 31st  December  1962, the 35 accused persons  who  had  been convicted by him preferred three appeals between them before the  Allababad  High Court, whereas the sentences  of  death imposed  on  10 accused persons by the learned  trial  Judge were submitted to the said High Court for confirmation.  The High  Court has held that 7 out of the 35 appellants  before it  were not proved to have committed any of  the  offences, and so, they were ordered to be acquitted.  In regard to the remaining  28 appellants, the High Court has  confirmed  the orders  of  conviction and sentence imposed on them  by  the trial Court.  In the result, the reference made to the  High Court for confirmation of the sentences of death imposed  on the  10 accused persons by the trial Court was allowed.   It is against this decision of the High Court that the  present five  appeals  have been brought to this  Court  by  special leave,  and the number of accused persons who  have  brought these appeals before us is 16. Before  dealing with the points raised in these appeals,  it is  necessary to set out very briefly the relevant facts  on which the prosecution case against the appellants and  their co-accused  substantially  rests.  The  incident  which  has given rise to the present criminal proceedings took place on the  29th  November,  1961 in village  Bilati  Khet  in  the district  of  Jhansi at about 8 a.m. It is clear  that  this village  is cursed with keen rivalry and enmity between  two factionsOne  group  was led by Gayadin who  and  four  other members  of his family were murdered on the said date.   All these murders were committed, according to the  prosecution, by  the  members  of  the rival  faction  amongst  whom  are included   the  present  appellants  before  us.    Criminal proceedings  have continued between the parties for  several years almost without interruption.  The rival group was  led by  Laxmi  Prasad  alias  Laxmi Narain who  is  one  of  the appellants  in  this  Court.  In the last  election  of  the village  Panchayat Laxmi Prasad succeeded as Pradhan of  the village  and defeated the candidate set up by  Gayadin.   On the  28th  November,  1961, a boundary  dispute  led  to  an incident  between  the  members of  the  two  groups.   This



dispute  related  to  two fields one of  which  belonged  to Gayadin and 137 the  other  to Laxmi Prasad.  Attempts were made  to  settle this  dispute by arbitration, but they failed.   It  appears that Laxmi Prasad and the members of his group did not agree to  submit  to  any arbitration and they  left  the  meeting called for the purpose threatening that they would see  that the matter in dispute between them was settled the next day. It  is  on  this grim note that the  incident  of  the  28th November ended. On  the 29th November in the early morning, Bahoran, one  of the  sons of Gayadin, had gone out to ease himself.  He  was then  carrying a pharsa.  In the field he met  Laxmi  Prasad who  attacked  him with a lathi.   Bahoran  retaliated  this attack  with his own pharsa and in the scuffle the  nose  of Laxmi  Prasad was injured and it began to bleed; in fact,  a part  of  the  nose was actually cut.   Infuriated  by  this injury,  Laxmi  Prasad went to his house and  collected  the whole crowd belonging to his faction.  Bahoran eased himself and  returned to his house.  Soon there after he washed  his hands  and went to the north where his father, brothers  and other  relations were warming themselves by fire.   At  that stage,  Ram  Prasad  and Dayaram rushed  to  the  scene  and informed them that Laxmi Prasad and his companions were  all armed  with  guns, spears, swords, gandasas and  lathis  and were  proceeding to the house of Gayadin determined to  kill all  the  members of Gayadin’s family.   On  receiving  this alarming information, Gavadin and his friends and  relatives thought  of proceeding towards the house of Gayadin.   About that time, Laxmi Prasad and his companions reached near  the house of Gayadin whereon Laxmi Prasad fired a gun.  Bhagwati was carrying a large quantity of cartridges in the folds  of his  dhoti  and  was instigating Laxmi  Prasad  to  fire  at everyone sitting near the fire to the north of the house and to  exterminate  the family of Gayadin.   On  hearing  this, everyone of the group sitting near the fire rushed into  the house and closed the doors.  The assailants then broke  open the  doors  of the house and entered the sehan  of  Gayadin. Inside the house the assailants pursued Gayadin on the upper storey  and  killed him there.  Brindaban, Radha  Saran  and Dayaram  were  hiding in different rooms of the  house;  the doors of these rooms 138 were  broken open and all the three of them were shot  dead. Bahoran  and Shiroman Singh, both sons of  Gayadin,  escaped through the tiled roof into the cattleshed of Harbans  which is  situated  towards  the south-east  of  Gayadin’s  house. Shiroman  concealed  himself  in the  godown  while  Bahoran concealed  himself  in the room in the  upper  storey  where chaff  had been stored.  After killing  Gayadin,  Brindaban, Radha Saran and Dayaram, the assailants mercilessly  dragged the  bodies of the victims out of the house of  Gayadin  and began their search for Bahoran and other male inmates of the house.   When the dead bodies were thus being dragged,  Gori Dulaiya  wife  of Gayadin rushed after  the  assailants  and implored them not to take the dead bodies away.  One of  the assailants,  however,  struck her with a stick and  she  was forced  to  retrace her steps.  The dead  bodies  were  then dragged  towards  the east of the house.   On  reaching  the cattleshed  of Harbans, the assailants broke open the  outer door  of the house and entered into it.  They  then  injured Harbans  and  managed  to discover Shiroman  Singh  who  was promptly killed.  The five dead bodies were then taken  into the  field  of  Bhagwati.  In the field  two  big  piles  of



cowdung cakes were prepared.  On one of the piles the bodies of  Gayadin, Brindaban, Radha Saran and Davaram were  placed and  on the other Shiroman Singh’s body was  put.   Kerosene oil  was sprinkled on the bodies and fire was set  to  them. That,  in brief, is the story of the gruesome murders  which have given rise to the present proceedings. When  the assailants had left the house of Gayadin  dragging the dead bodies with them.  Rahoran came out of hi,,  hiding place and rushed to the Police Station Krichh and lodged the First Information Report at about 11 o’clock. In this report,.....he  gave  all the  material  details  in regard to the commission.of the offence and named the 35 persons as the assailants. ....In  fact,  the  first  committal   order passed on the 31st March,.....1962 in the present proceedings referred to 35  assailants.  Later. five more persons were added to  the list  of assailants by the committal order made on the  14th May, 1962.  On receiving the first information report, the police party rushed to the scene of occurrence on cycles and  they  put off the burning fire and took  out  the  half burnt 139 bodies  of  the five murdered persons.   These  bodies  were identified  aid were sent for post mortem examination.   The injured  persons  Harbans, Ram Prasad, Mansa  Ram  and  Smt. Gori Dulaiya were sent for medical examination.  Post-mortem examination was then held on the dead bodies and  statements of  witnesses were recorded in the course of  investigation. That  led to the several charges framed against  40  persons and  ultimately  their  trial  in the  Court  of  the  First Additional Sessions Judge at Jhansi. The case for the prosecution is sought to be established  by the testimony of 12 eye-witnesses.  All the accused  persons denied  that  they  had anything to  do  with  the  offences charged.   Their main contention was that a false  case  had been made against them and it was attempted to be  supported by  evidence of witnesses who were hostile to them  and  who had  no  regard for cruth.  The trial Judge,  in  substance. rejected the defence plea and accepted the prosecution  evi- dence.  except  in  the case of five  accused  persons.   In appeal,  several  contentions were raised on behalf  of  the appellants,  but they were rejected and in the  result,  the findings  of  the trial Court against  the  appellants  were confirmed.  The High Court, however, reversed the conclusion of  the  trial Court in respect of 7  accused  persons  with whose  cases  we are not concerned in the  present  appeals. The  12  persons  who  gave  direct  evidence  against   the appellants and their co-accused persons are: Bahoran P.W. 1; Basanti  Lal  P.W.2;  Rameshwar Dayal  P.W.3;  Prabhu  Dayal P.W.5;  Pancham P.W.6: Swarup Singh P.W.14; Kasturi  P.W.15; Thakur Das P.W.16. Shyamlal P.W.17; Harbans P.W.18;  Dropadi P.W.19;   and  Kishori  Lal  P.W.20.  The  High  Court   has critically  examined the evidence given by  these  witnesses and  has held that the evidence of Bahoran and Prabhu  Dayal may be left out of account as it appeared to the High  Court that  the said evidence suffered from material  infirmities. The  evidence  given  by the  remaining  10  witnesses  has, however,  been accepted by the High Court  as  substantially true and correct. Jr.  dealing  with this oral evidence, the High  Court  took into account the fact that most of these witnesses  belonged to the faction of Gayadin and must, therefore, be regarded 140



as  partisan.   It  also considered  another  feature  which characterised the evidence of all the witnesses and that was that  they gave their account of the incident  substantially in  similar  terms and did not assign  particular  parts  in respect of overt acts to any of the assailants except  Laxmi Prasad accused No. 1. The approach adopted by the High Court shows  that  it  decided to confirm the  conviction  of  the accused  persons against whom four or more witnesses gave  a consistent  account,  and it is by the application  of  this test that 7 accused persons have been acquitted.  As to  the sentence,  the High Court realised that 10 persons had  been ordered to be hanged and that it could not be said about all of them, except Laxmi Prasad, that they had actually fired a gun  and caused the death of any of the five victims.   Even so,  the High Court held that since they all formed  members of  the unlawful assembly the common object of which was  to exterminate the male members of the family of Gayadin,  they were  all equally guilty of murder under s.302,/149,  I.P.C. and  it would not, therefore, be unreasonable to impose  the penalty of death on such of the assailants is were shown  to have carried guns in their hands on that occasion.  That  is how  the High Court upheld the orders of  conviction  passed against 28 persons who had brought their cases before it  in appeal  and confirmed the sentences of death imposed on I  0 of them. In  these  appeals,  Mr.  Sawhney  who  has  addressed   the principal  argument before us on behalf of  the  appellants, has urged that the High Court has failed in discharging  its duty properly when it dealt with the appeals brought  before it by the appellants and decided to confirm the sentences of death  imposed on 10 of the accused persons.  In support  of this  argument, Mr. Sawhney has relied upon the decision  of this  Court  in the case of Jumman & Ors. v.  The  State  of Punjab. (1) In that case, this Court has emphasised the fact that  the mandatory requirement prescribed by s.374  of  the Code  of  Criminal  Procedure shows  that  in  dealing  with reference for confirmation of death sentence imposed by  the Sessions  Judge, the High Court has to consider  the  entire case  for  itself before deciding whether  the  sentence  of death (1)  A.T.R. I957 S.C. 469- 141 should  be confirmed or not.  Section 374 provides that  the sentence  of  death  shall  not be  executed  unless  it  is confirmed  by the High Court.  In other words, the  sentence of  death imposed by the Court of Sessions is not  effective until  and unless it is confirmed by the High Court.  It  is only when the High Court confirms the sentence of death that it  is  capable  of  execution.   That  is  why  this  Court emphasised  the solemnity of the Proceedings brought  before the  High Court under s.374, and it pointed out  that  under s.375, the High Court is given the power to admit additional evidence  if  it  thinks necessary to  do  so.   Proceedings brought  before the High Court for confirmation of  a  death sentence give a right to the condemned prisoner to be  heard on the merits and to require the High Court to consider  the matter   for   itself  without  being  influenced   by   the conclusions   recorded  by  the  Court  of  Sessions.    The conclusions  of  the  High  Court  on  the  merits  in  such proceedings  must  be independent,. and so, the  High  Court inevitably  has  to  go  into the  whole  of  the  evidence. consider  all  the  pros and cons of the  case  and  satisfy itself  that  the offence charged under s.  302,  I.P.C.  is established  beyond  reasonable doubt and  the  sentence  of death  submitted  to  it  for  its  confirmation  is   fully



justified.    Mr.  Sawhney  contends  that  this   essential requirement of s.374 has not been complied with by the  High Court  when it dealt with the appeals brought before  it  in the present proceedings.  He also adds that since 10 persons have been ordered to be hanged, that itself is a reason  why this  Court should examine the evidence for itself  and  not hold  that  the  appellants  are  concluded  by   concurrent findings of fact recorded by the Court below. We are not impressed by this argument.  It is perfectly true that,  in  a  murder trial when  an  accused  person  stands charged  with the commission of an offence punishable  under s.302, he stands the risk of being subjected to the  highest penalty  prescribed by the Indian Penal Code; and  naturally judicial  approach  in  dealing with such cases  has  to  be cautious,  circumspect  and careful.  In dealing  with  such appeals or reference proceedings where the question of  con- firming  a  death sentence is involved, the High  Court  has also 142 to  deal  with  the  matter carefully  and  to  examine  all relevant  and  material circumstances before  upholding  the conviction  and  confirming  the  sentence  of  death.   All arguments   urged  by  the  appellants  and   all   material infirmities  pressed before the High Court on  their  behalf must be   scrupulously        examined and considered be- fore a final decision is reached.  The fact that 10...persons had been ordered to be hanged by the trial Judge  necessarily imposed a more serious and  onerous  res- ponsibility  on the High Court in  dealing with the  present appeals.    We  have  carefully  considered   the   judgment delivered  by  the High Court in these appeals  and  we  are satisfied  that the criticism made by Mr. Sawhney  that  the High  Court  did not bestow due care and  attention  on  the points  involved  in the case, cannot be regarded  as  well- founded,  The judgment shows that the arguments  which  were urged  on  behalf  of the appellants,  have  been  carefully examined, the evidence given by the respective witnesses has been  accurately summarised and the infirmities in the  said evidence closely scrutinised.  The relevance of the argument of  the  admitted  enmity between the two  factions  of  the village has been taken into account and the common  features of  the  evidence tendered by the witnesses  have  not  been overlooked.  After taking into account all the points  which were urged before the High Court the High Court adopted what it  thought  to  be  a safe test  before  acting  on  direct evidence.   It has held that unless at least four  witnesses are shown to have given a consistent account against any  of the appellants. the case against them cannot be said to have been  proved beyond reasonable doubt.  Having regard to  the manner  in which the High Court has dealt with  the  appeals brought  before  it, we are not prepared to  hold  that  the general  criticism made by Mr. Sawhney against the  judgment of the High Court can be accepted. In this connection, Mr. Sawhney strongly relied on the  fact that  the High Court has not considered one important  point in  favour of the defence, and that is in to the failure  of the  prosecution  to tender three material  witnesses  whose names  had  been shown in the witness-list in  the  calendar sent by the committing Magistrate to the trial Judge.  These witnesses are: Ram Prasad, Mansa Ram and 143 Rani Dulhan.  It appears that this contention was raised  by the defence before the Trial Court and had been rejected  by it.   The Government counsel appearing for  the  prosecution



had  made an application to the trial Court  expressing  his inability to examine the three witnesses for the reason that Ram  Prasad and Mansa Ram had been won over by  the  defence and  Rani  Dulhan,  the widow of one  of  the  victims,  was suffering  from  such mental shock that she  was  unable  to depose  coherently.   After this application  was  made  and granted,  the  learned trial Judge did not insist  upon  the prosecution  examining  the  three  said  witnesses.    Then followed three other applications by the defence (Nos. 247B, 248B  and  249B) in which it was urged that the  said  three witnesses  should  be examined under s.540,  Cr.   P.C.  The learned trial Judge rejected these applications, and so, the case  concluded  without  the said  three  witnesses  giving evidence before the trial Court.  In rejecting the  applica- tions  made by the defence, the learned Judge has  carefully examined  the  validity of the defence contention  that  the evidence  given by the said witnesses before the  Committing Magistrate showed that they were material witnesses and  the plea raised by them that the absence of their evidence would cause  prejudice  to  the defence, and  has  held  that  the evidence  which  the said three witnesses may give  was  not essential  for a just decision of the case and that  it  was unreasonable to suggest that the prosecution had an  oblique moive in supressing their evidence.  This part of the  judg- ment  clearly shows that all relevant aspects of the  matter were  examined  by  the trial Judge  before  he  refused  to exercise  his  powers under s.540, Cr.  P.C. It  is  obvious that  this contention was not urged before the  High  Court, and  so, we find no discussion of the point in the  judgment of the High Court. We  are not prepared to accept Mr. Sawhney’s  argument  that even  if this point was not raised by the appellants  before the High Court, they are entitled to ask us to consider that point  having regard to the fact that 10 persons  have  been ordered to be hanged.  It may be conceded that if a point of fact  which plainly arises on the record, or a point of  law which is relevant and material and can be argued with- 144 out  any further evidence being taken, was urged before  the trial Court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be  permis- sible  to the appellants to ask this Court to consider  that point  in  an  appeal under Art. 136  of  the  Constitution; afterall  in  criminal proceedings of this  character  where sentences of death are imposed on the appellants, it may not be  appropriate to refuse to consider relevant and  material pleas of fact and law only on the ground that they were  not urged before the High Court.  If it is shown that the  pleas were  actually urged before the High Court and had not  been considered by it, then, of course, the party is entitled  as a  matter of right to obtain a decision on those pleas  from this Court.  But even otherwise no hard and fast rule can be laid  down  prohibiting such pleas being raised  in  appeals under Art. 136. In the present case, however, we are satisfied that there is no  substance in the contention which Mr. Sawhney  seeks  to raise  before  us.   It is not unknown  that  where  serious offences  like the present are committed and a large  number of  accused persons are tried, attempts are made  either  to terrorise  or  win over prosecution witnesses,  and  if  the prosecutor  honestly and bonafide believes that some of  his witnesses  have been won over, it would be  unreasonable  to insist that he must tender such witnesses before the  Court. It is undoubtedly the duty of the prosecution to lay  before the  Court  all material evidence available to it  which  is



necessary for unfolding its case; but it would be unsound to lay  down is a general rule that every witness must be  exa- mined  even though his evidence may not be very material  or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to  examine such  witnesses  is their witnesses and the Court  can  also call  such witnesses in the box in the interest  of  justice under s.540, Cr.  P.C. As we have already seen, the  defence did  not  examine these witnesses and the Court,  after  due deliberation, refused to exercise its power under s.540, Cr. P.C. That is one aspect of the matter which we have to  take into account. 145 The  other aspect of the matter is that the trial Court  has found  that  the evidence which these witnesses  would  have given  was  not essential for a just decision of  the  case. What  these witnesses might have said in the Sessions  Court was judged by the trial Court in the light of their previous statements already recorded, and that is a finding which  is purely  one of fact.  If this finding was not challenged  by the appellants before the High Court, we do not see how they can  claim to argue before us now that the said  finding  is erroneous.  Besides, so far as Rani Dulhan is concerned,  it seems to us utterly unreasonable to insist that before  per- mitting  the prosecutor not to examine her, evidence  should have  been  led  to show that she was  suffering  from  such mental shock that she was unable to give a coherent  account of the tragic events that happened on that fateful  morning. One has merely to recall the fact that five male members  of her  family  were butchered to death by  the  assailants  to realise  that  the  prosecutor’s  statement  that  she   was mentally  unbalanced must be true.  Then, as to  Ram  Prasad and  Mansa  Ram having been won over by  the  defence,  that again  is a matter on which the trial Court appears to  have been  satisfied; otherwise it would have readily acceded  to the  request of the defence to exercise its powers under  s. 540.  Cr.  P.C. We are inclined to think that it is  because this  part  of  the  defence  contention  was  felt  to   be inarguable  that  the Advocate for the  appellants  did  not raise  this point before the Court.  Therefore, we  are  not prepared  to  allow  Mr.  Sawhney to  take  us  through  the evidence  in  the  case on the  ground  that  one  important contention  raised by the defence has not been  examined  by the High Court. Mr.  Sawhney  has then argued that  where  witnesses  giving evidence  in  a murder trial like the present are  shown  to belong to the faction of victims, their evidence should  not be accepted, because they are prone to involve falsely  mem- bers  of  the  rival  faction out  of  enmity  and  partisan feeling.   There is no doubt that when a criminal Court  has to  appreciate evidence given by witnesses who are  partisan or  interested, it has to be very careful in  weighing  such evidence. 51 S.C.-IO 146 Whether  or  not there are discrepancies  in  the  evidence; whether  or not the evidence strikes the Court  as  genuine; whether or not the story disclosed by the evidence is  prob- able, are all matters which must be taken into account.  But it would, we think, be unreasonable to contend that evidence given  by witnesses should be discarded only on  the  ground that  it  is evidence of partisan or  interested  witnesses. Often enough, where factions prevail in villages and murders are  committed as a result of enmity between such  factions, criminal  Courts  have to deal with evidence of  a  partisan type.  The mechanical rejection of such evidence on the sole



ground that it is partisan would invariably lead to  failure of  justice.  No hard and fast rule can be laid down  as  to how much evidence should be appreciated.  Judicial  approach has  to be cautious in dealing with such evidence;  but  the plea  that  such evidence should be rejected because  it  is partisan cannot be accepted as correct. Then  it is urged that the evidence given by  the  witnesses conforms  to the same uniform pattern and since no  specific part is assigned to all the assailants, that evidence should not  have been accepted.  This criticism again is not  well- founded.  Where a crowd of assailants who are members of  an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly,  it is  often not possible for witnesses to describe  accurately the part played by each one of the assailants.  Besides,  if a  large  crowd of persons armed with weapons  assaults  the intended victims, it may not be necessary that all of them have to take part in the actual assault.  In the present case, for instance, several weapons were carried by different  members of the unlawful assembly, but it  appears that  the guns were used and that was enough to kill 5  per- sons.   In such a case, it would be unreasonable to  contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to  the said  weapons  itself should be rejected.   Appreciation  of evidence  in  such a complex case is no  doubt  a  difficult task:  but criminal courts have to do their best in  dealing with  such cases and it is their duty to sift  the  evidence carefully  and decide which part of it is true and which  is not.  In the 147 present case, the High Court has in fact refused to act upon the,  evidence  of  Bahoran and  Prabhu  Dayal,  because  it appeared  to the High Court that the evidence of  these  two witnesses suffered from serious infirmities. Mr.  Sawhney  also urged that the test applied by  the  High Court in convicting the appellants is mechanical.  He argues that  under  the Indian Evidence Act,  trustworthy  evidence given  by  a single witness would be enough  to  convict  an accused  person,  whereas  evidence given by  half  a  dozen witnesses  which is not trustworthy would not be  enough  to sustain the conviction.  That, no doubt is true; but where a criminal  court has to deal with evidence pertaining to  the commission  of  an  offence  involving  a  large  number  of offenders  and  a large number of victims, it  is  usual  to adopt  the test that the conviction could be sustained  only if  it  is supported by two or three or more  witnesses  who give a consistent account of the incident.  In a sense,  the test may be described as mechanical; but it is difficult  to see  how  it can be treated as irrational  or  unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test.  If at all the  prosecution  may  be entitled to  say  that  the  seven accused  persons were acquitted because their cases did  not satisfy  the mechanical test of four witnesses, and  if  the said test had not been applied, they might as well have been convicted.   It  is, no doubt, the quality of  the  evidence that  matters and not the number of witnesses who give  such evidence.  But, sometimes it is useful to adopt a test  like the one which the High Court has adopted in dealing with the present case. Mr.  Sawhney  then attempted to argue that  the  High  Court failed  to give effect to the principles enunciated by  this Court  in the case of Baladin v. State of Uttar  Pradesh(’). In  that case, it was observed by Sinha, J., who  spoke  for



the Court, that it is well-settled that mere presence in  an assembly does not make a person, who is present, a number of an  unlawful  assembly unless it is shown that he  had  done something or omitted to do something which would make him  a member  of  an unlawful assembly, or unless the  case  falls under s.142, I.P.C. The argument is (1)  A.I.R. 1956 S.C. 181 148 that evidence adduced by the prosecution in the present case does  not  assign any specific part to most of  the  accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members  of an unlawful assembly.  The observation of which Mr.  Sawhney relies,  prima facie, does seem to support  his  contention; but, with respect, we ought to add that the said observation cannot  be read as laying down a general proposition of  law that  unless an overt act is proved against a person who  is alleged to be a member of an unlawful assembly, it cannot be said  that he is a member of such an unlawful assembly.   In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case.  It appears that in the case  of  Baladin(1),  the  members of  the  family  of  the appellants and other residents of the village had  assembled together;  some  of  them shared the common  object  of  the unlawful  assembly,  while others were merely  passive  wit- nesses.  Dealing with such an assembly, this Court  observed that  the presence of a person in an assembly of  that  kind would  not necessarily show that he was a member of  an  un- lawful assembly.  What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was  one  of the persons constituting the assembly  ,and  he entertained along with the other members of the assembly the common  object  as  defined by  s.141,  I.P.C.  Section  142 provides that 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.  In other words, an assembly of five  or more  persons actuated by, and entertaining one or  more  of the common objects specified by the five clauses of s.  141, is an unlawful assembly.  The crucial question to  determine in such a case is whether the assembly consisted of five  or more persons and whether the said persons entertained one or more of the common objects as specified by s......141.   While determining this  question, it becomes relevant....to   consider   whether   the   assembly consisted of some persons.....who  were merely passive  witnesses  and had (1)  A.I.R. 1956 S.C. 181 I49 joined  the assembly as a matter of idle  curiosity  without intending  to entertain the common object of  the  assembly. It  is  in that context that the observations made  by  this Court  in  the  case  of  Baladin(1)  assume   significance; otherwise,  in  law,  it would not be correct  to  say  that before  a  person  is held to be a  member  of  an  unlawful assembly,  it  must  be shown that  he  had  committed  some illegal  overt  act  or  had been  guilty  of  some  illegal omission in pursuance of the common object of the  assembly. In  fact,  s.149  makes  it clear  that  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 committing of that offence. is a  member of  the same assembly, is guilty of that offence;  and  that emphatically brings out the principle that  the  punishment  prescribed by s.149  is  in  a  sense vicarious and does not always proceed on the basis that  the offence  has been actually committed by every member of  the unlawful  assembly.   Therefore, we are satisfied  that  the observations made in the case of Baladin(l) must be read  in the context of the special facts of that case and cannot  be treated  as  laying down an unqualified proposition  of  law such as Mr. Sawhney suggests. In  this  case, the High Court has  carefully  examined  the evidence  and  has made a finding that the  whole  group  of persons  who  constituted the assembly were members  of  the faction  of Laxmi Prasad and they assembled together,  armed with  several  weapons, because they  entertained  a  common object in pursuance of which the five murders were committed on  that  day.   Therefore, there is  no  substance  in  the argument  that  the conclusion of the High  Court  that  the appellants  are guilty of the offences charged is  not  sup- ported by the principles of law enunciated by this Court  in the case of Baladin(1). It  is thus clear that the general grounds of  attack  urged before us by Mr. Sawhney in challenging the validity of  the conclusions recorded by the High Court fail, and so, there (1)  A.I.R. I956 S.C. 181 150 would be no occasion or justification for this Court to con- sider the evidence for itself. That leaves one question still to be considered and that has relation  to  the sentence of death imposed on  10  persons. Mr. Sawhney argues that in confirming the sentences of death imposed  by  the trial Court on 10 accused persons  in  this case,  the  High Court has adopted a mechanical  rule.   The High  Court has held that the 10 persons who  carried  fire- arms should be ordered to be hanged, whereas others who have also been convicted under s. 302/149, should be sentenced to imprisonment  for  life.  It is true that except  for  Laxmi Prasad, the charge under s. 302/149 rests against the  other accused  persons on the ground that five murders  have  been committed by some members of the unlawfui assembly of  which they  were  members, and the argument is that unless  it  is shown that a particular accused person has himself committed the murder of one or the other of the victims, the  sentence of death should not be imposed on him.  In other words,  the contention  is  that if a person is found guilty  of  murder under  s.  302/149  and  it is not  shown  that  he  himself committed  the  murder in question, he is not liable  to  be sentenced  to  death.   In support  of  this  argument,  Mr. Sawhney  has relied on certain observations made by Bose  J. who  spoke  for  the  Court  in  Dalip  Singh  v.  State  of Punjab(’).  In that case,  what this Court observed was that the power to...enhance  a sentence from  transportation to death should very...rarely  be  exercised and only  for  the stron- gest reasons; and...it  was added that it is not enough  for the appellate court to..say  or think that if left to itself  it would have awarded the....greater  penalty because the  discretion does ,not belong to the..appellate court but to the trial  Judge, and



the  only ground on which the appellate court can  interfere is that the discretion has been improperly exercised.  These observations have no relevance in the present case,  because we  are  not dealing With a case where the  High  Court  has enhanced the sentence imposed by the trial Judge at all.  In fact,  both  the trial Court and the High Court  are  agreed that the sentences of death imposed on 10 persons are justi- fied   by  the  circumstances  of  the  case  and   by   the requirements (1)  (1954] S.C.R. 145 151 of  justice.   As a mere proposition of law,  it  should  be difficult to accept the argument that the sentence of  death can be legitimately imposed only where an accused person  is found to have committed the murder himself.  Whether or  not sentences  of  death should be imposed on  persons  who  are found to be guilty not because they themselves committed the murder,  but  because  they  were  members  of  an  unlawful assembly  and the offence of murder was committed by one  or more of the members of such an assembly in pursuance of  the common object of that assembly, is a matter which had to  be decided on the facts and circumstances of each case.  In the present  case, it is clear that the whole group  of  persons belonged  to Laxmi Prasad’s faction, joined  together  armed with  deadly  weapons and they were inspired by  the  common object  of exterminating the male members in the  family  of Gayadin,  10 of these persons were armed with fire-arms  and the  others with several other deadly weapons, and  evidence shows  that five murders by shooting were committed  by  the members  of  this unlawful assesmbly.  The  conduct  of  the members  of the unlawful assembly both before and after  the commission of the offence has been considered by the  courts below  and it has been held that in order to  suppress  such fantastic  criminal conduct on the part of villagers  it  is necessary to impose the sentences of death on 10 members  of the  unlawful  assembly who were armed  with  firearms.   It cannot  be  said  that discretion in  the  matter  has  been improperly  exercised  either by the trial Court or  by  the High  Court.   Therefore  we see no  reason  to  accept  the argument  urged by Mr. Sawhney that the test adopted by  the High  Court  in  dealing with the question  of  sentence  is mechanical and unreasonable. There  are, however, three cases in which we think we  ought to  interfere.   These are the, case of accused  No.  9  Ram Saran who is aged 18; accused No. II Asha Ram who is aged 23 and accused No. 16 Deo prasad who is aged 24, Ram Saran  and Asha Ram are the sons of Bhagwati who is accused No. 2. Both of them have been sentenced to death.  Similarly, Deo prasad has  also  been sentenced to death.  Having  regard  to  the circumstances  under which the unlawful assembly came to  be formed, we are satisfied that these 152 young  men  must  have joined the  unlawful  assembly  under pressure  and  influence of the elders of  their  respective families.  The list of accused persons shows that the unlaw- ful  assembly  was  constituted  by  members  of   different families  and  having regard to the manner  in  which  these factions ordinarily conduct themselves in villages, it would not be unreasonable to hold that these three young men  must have  been  compelled  to join the  unlawful  assembly  that morning  by their elders, and so, we think that the ends  of justice  would be met if the sentences of death  imposed  on them  are  modified  into sentences  of  life  imprisonment. Accordingly,  we  confirm  the  orders  of  conviction   and sentence  passed against all the appellants  except  accused



Nos.  9, 11 and 16 in whose cases the sentences are  altered to  those  of  imprisonment for life.  In  the  result,  the appeals are dismissed, subject to the said modification. Appeals dismissed.