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PETITIONER: SHRI RAM &  SHIV RAM & ANR. ETC.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       21/10/1997

BENCH: M.M. PUNCHHI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T                THE 21ST DAY OF OCTOBER, 1997 Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice S.P.Kurdukar A.K.Ganguli, Sr. Adv.(A.C.), Sushil Kumar, Dr. N.M. Ghatate, Sr. Advs.,  V.Krishnamurthy, Mrs. Rekha Pandey, P.R.Kovilan, S.M. Rai, B.M.Sharma, T.N.Singh, Mrs. Sushila Shukla (A.C.), Mukesh K.  Giri, Shakil  Ahmed Syed,  C.D.  Singh  and  A.S. Pundir, Advs. with them for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:                             WITH                CRIMINAL APPEAL NO.593 OF 1997 S.P. KURDUKAR, J.      A primitive  theory of  punishment, "limb for limb; eye for  eye;  ear  for  ear;  etc.,  etc.,"  prevalent  in  the uncivilized society was put into action in letter and spirit in the  present time.  The magnitude  of the  oresent  crime needs no  elaboration. In the present crime five deaths were involved in  which a boy of ten years had been assaulted and thrown into the fire and roasted alive; heads of three human bodies were  severed  and  the  5th  who  sustained  firearm injuries died  in the  hospital after  about 17  days due to septicaemia. Such  is the  gravity of  the crime. 24 persons were arranged  at the trial as accused and at the conclusion of the trail, the trial court awarded death sentence to four accused, life  imprisonment to  twelve accused and acquitted seven accused.  The trial  court made  a reference filed the Section 355 Cr.P.C.: the convicted accused filed the appeals including those who had been awarded capital punishment; the State of  U.P. also filed two appeals; one against the order of acquittal of seven accused and another for enhancement of sentence in  respect of other accused. The batch of criminal appeals was  heard together  by the High Court of Allahabad. The High Court confirmed the death sentences awarded to four accused and  in addition  thereto while  allowing the  State appeal for  enhancement, awarded the death sentence to three accused.  The  State  appeal  filed  against  the  order  or acquittal had  been allowed  and  they  were  convicted  for

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various offences including substantive offence under Section 302 with  the aid  of Section 149 IPC and sentenced each one of them  to suffer life imprisonment. The particulars of the accused, the  weapons used during the assault and details of the deceased  will be  referred to  shortly. These  criminal appeals   have   been   filed   in   this   Court   by   the accused/appellants challenging  the judgment  and  order  of conviction  and   sentence  passed  by  the  High  Court  on 28.1.1997. All these appeals were heard together. Since they arise out  of a  common judgment, they are, therefore, being disposed of by this judgment. (2)  Before we advert to the prosecution case we may set out the particulars of the accused/appellants since most of them come from  the same family and some are close relatives. The accused/appellants will  be referred  to in these appeals by their original description as in the trial court:                              x ............................................................             Jodhey                             Raghubar(A-9) ............................................  .............. Chandrika    Shayam    Sheo Ram    Lalla         Pattu Passi (died) Manohar    (A-2)      (A-3)          (A-7)               (A-1) ......................         ............................. Harish Rajender Ravindra          Suresh        Prakash (A-4)   (A-6)    (A-5)             (A-13)        (A-8) Dhakan (A-18)  is nephew  of A-1, Nandlal (A-20) is uncle of A-1, Srikrishna  (A-19) is son of Nandlal (A-20). Sriram (A- 14) and  Rajaram (A-15)  are brothers  and  sons  of  Bhawan Passi. Rampal (A-16) and Itwari (A-17) are brothers and sons of Bharosey.  Rakesh (A-11)  and Rajesh  (A-12) are brothers and sons  of Prem  Giri (A-10) who is now dead. Sankatta (A- 22) and Mathura (A-21) are brothers. Dorey (A-23) is related to A-22; Rampal Verma is A-24. (3)  The deceased  persons were  also closely related to the complainant Mahendra Kumar (P.W.1) as shown below:                        Bhuwaneshwari                          (deceased)                        .............                         Sukhdarshan                          (deceased)                      ..................                Mahendra Kumar         Sandeep              (P.W.1)                 (deceased) (4)  In addition  to the above list or deceased persons from one family,  Surendra (since deceased) was cousin of P.W.1., Kamlesh (since  deceased) was  a relative of P.W.1. Sheo Pal and Ram  Gulam  are  the  relatives  of  Sukhdarshan  (since deceased). (5)  The motive of the present crime was sought to be traced by the  prosecution from  the murder of Chandrika Passi, who was a brother of A-1 and resident of village Bajarakha. This murder took place two and a half months prior to the present occurrence that  took place  on  23.6.1990.  The  murder  of Chandrika was  alleged to  be brutal  one as  his  head  was severed. The  family members  of Chandrika  were  suspecting that Sheo  Pal and  Ram Gulam,  the relatives of Sukhdarshan had committed  the said  murder and, therefore, the criminal case against both of them for an offence of murder is stated to be pending. The accused laboured under a belief that Sheo Pal, Ram  Gulam and  his relatives  were responsible for the murder of  Chandrika and it was this belief which gave cause to  nurture   enmity   against   the   family   members   of Bhuwaneshwari, Sheo Pal and Ram Gulam. The second reason for enmity sought to be alleged by the prosecution was that Prem

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Giri (A-10) (since deceased) who was residing in an adjacent house to  Bhuwaneshwari, had  an axe  to grind  against  the family of  latter as  a  civil  dispute  in  regard  to  the property belonging  to "Thakurji  Trust" was pending between them. Bhuwaneshwari obtained the decree against Prem Giri in the trial  Court but  we are  told that  the appeal filed by Prem Giri is pending in the higher court. (6)  The occurrence  in question  took place  on 23.6.90  at about 5.00  p.m., Mahendra  Kumar (P.W.1)  lodged the FIR at about 9.05  p.m. at  Mitauli Police  Station situated  at  a distance of  15 km.  from the  place  of  incident.  In  his complaint Mahendra  Kumar (P.W.1)  had disclosed  all the 24 named accused  along with  8 to  10 unidentified persons who had come  to the house of Bhuwaneshwari. He then stated that at that  time he  and Surendra  (deceased) were sitting near the couldron  and  his  father  Sukhdarshan  (deceased)  was sitting near  the Kolhoo. All the accused person, armed with deadly weapons,  reached near  the Kolhoo. A-1, A-2, A-4 and A-13 were  armed with  Bankas,  A-10  was  carrying  a  DBBL licensed gun,  A-3 and  A-16 were armed with SBBL guns, A-20 was carrying country made SBBL gun and the remaining accused were armed  with country  made pistols and guns. The accused persons  when  reached  near  the  Kolhoo,  started  abusing Sukhdarshan and Bhuwaneshwari (both since deceased) and were also giving bad words on other members of their family. Then all the  accused demanded  show how both could remain alive. Saying so all the accused persons chased Sukhdarshan who out of fear entered into the house of Shambhudayal and raised an alarm.  Kamlesh   (since  deceased)   s/o  Shambhudayal  and Shakuntala after allowing Sukhdarshan inside the house tried to shut  the door  bu the accused inserted the barrel of the gun through  the door  and fired  which hit Kamlesh who fell down. (7)  The miscreants  then opened the door and after entering into the  house fired  at Sukhdarshan,  who fell down in the courtyard. A-2,  A-4 and  A-13 thereafter caught hold of the hands and  feet of  Sukhdarshan whereupon  A-1 assaulted him with Banka  and severed  his head  and kept it in a piece of cloth. The  assailants then surrounded the house of Mahendra Kumar (P.W.1)  the complainant,  opened the door, demolished the walls  and entered  into his  house. Family  members  of Mahendra Kumar  (P.W.1), namely,  Goura the  grand mother of Surendra, and his wife Manorama, were inside the house, they requested them  not to  assault any  of the  family members. Surendra (since deceased) had a licensed gun. He immediately closed and  bolted the  door of  his room from inside. Since the door  could not  be opened,  A-1 told  his associates to sprinkle the  diesel on  the house  and set  it on fire. The miscreants then  took out  the  diesel  from  the  drum  and sprinkled it  on the  Chappar (roof) and also poured it into the room  through a  hole where Surendra was hiding and then lit the  fire to  chappar and  asked Surendra  to  come  out otherwise all  his family  members would  be done  to death. Sandeep (since  deceased) a boy aged about 10 years, was the younger brother  of the  complainant, came  out and  started abusing the  accused persons. A-6 then fired from his gun on Sandeep causing  injuries to  him and thereafter A-6 and A-8 lifted Sandeep  and threw  him into  the fire.  Sandeep  was burnt alive  and died  in the said fire. This was the second casualty in the course of the attack levelled by the accused on the  family members  of the  complainant. Surendra (since deceased) then came out of the room and tried to run away as by that  time the fire had engulfed his house. When Surendra was running away he was fired at and because of the fire arm injuries he  fell down  in the  kitchen. Thereafter A-2, A-4

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and A-13  caught hold  of the  hands and  legs of  Surendra, facilitating A-1 to assault him with Banka. A-1 then severed the head  of Surendra and kept it in the same piece of cloth where the  head of  Sukhdarshan was kept. It was then stated that in  the meantime  Bhuwaneshwari, the  grand  father  of Mahendra Kumar  (P.W.1)  who  was  returning  from  Bajarkha market, on  seing the  accused  in  action,  tried  to  rush towards his  house but he was also not spared and caused him fire arm injuries. A-2, A-4 and A-13 then caught hold of the hands and feet of Bhuwaneshwari and thereafter A-1 assaulted him with  Banka and severed his head and kept it in the same price of  cloth where  two  heads  were  already  kept.  The accused persons thereafter went in search of Sheo Pal but he was not  found in the house. The accused persons then stated that Sheo Pal was the person who had committed the murder of Chandrika Passi  and, therefore,  he must  be traced. Seeing the ghastly murders of four persons and gun shot injuries on Kamlesh,  the  family  members  of  Mahendra  Kumar  (P.W.1) requested the  accused persons to spare other family members whereupon A-1  told his  associates that  let the  remaining members of the family be spared to mourn the deaths of their dear  ones.   A-7  then   took  away  the  licensed  gun  of Sukhdarshan. (8)  It was  then stated  in the  complaint that due to fire the house  of Surendra  and Articles therein were completely burnt and  reduced to ashes. Such a ghastly attack continued for a  period of  one and   a  half hour.  Although it was a weekly market  day of  village Bajarkha  and so many persons had gathered  in the  market but nobody dared to come to the rescue. The  brutality committed  by  the  accused  persons, according to  the complainant  did not  rest at that but the accused persons  then took  out  a  victory  procession  and raised the  slogans ‘Shyam  Manohar Zindabad’,  ‘Nandlal and Prem Giri Zindabad’; Lakhpal Bhaiya Zindabad" and thereafter went towards the house of Chandrika Passi (since deceased). (9)  Mahendra Kumar  (P.W.1)  then  immediately  prepared  a complaint  containing   aforesaid  facts  and  took  injured Kamlesh in  a tractor  to the  police station which was at a distance of  15 kms.  They handed  over the  complaint to SI Surendra Kumar  Pandey who  registered the  FIR  Ex.Ka-1  at about 9.05  p.m. on  the same evening. After registering the crime Si  proceeded to  the place  of occurrence but by that time it  was too  late in the night and, therefore, he could not hold  the  inquest  on  the  dead  bodies  but,  however recorded the statements of various persons during late night hours. On  the next  day in  the early  morning he  held the inquest  on  the  dead  bodies  of  Sukhdarshan  (Ex.Ka-15), Bhuwaneshwari (Ex.Ka-29),  Sandeep (Ex.Ka-26)  and  Surendra (Ex.Ka-29). The  dead bodies  were then sent for post-mortem examination. Other  formal panchnamas etc., were carried out on 24.6.90. Kamlesh, who had sustained the gun shot injuries was admitted  in the  hospital on  24.6.1990 at  about  8.00 a.m., who  lateron succumbed to the injuries on 10.7.90. The inquest report is at Ex.Ka-23. Eight empty cartridges, empty drum of  diesel and the ladder were seized from the place of occurrence. During investigation the accused persons came to be arrested  and while  in  custody  A-4  made  a  voluntary disclosure statement  under Section  27 of  the Evidence Act which came  to be recorded and it led to the recovery of two severed heads  of Sukhdarshan  and Bhuwaneshwari.  A-1 after his arrest  also made  a statement which led to the recovery of a  gun from  the well.  After  completing  the  necessary investigation a  charge-sheet came  to be  filed against  24 accused persons  for offences punishable under Sections 302, 147, 148,  307, 436,  452, 404  read with  Section 149  IPC.

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Shyam Manohar  was separately charge-sheeted and tried under Section 25 of the Arms Act. (10) The accused persons denied the charges levelled against them. They pleaded that they have been falsely implicated in the present  crime due  to enmity with the witnesses as well as the  police. A-1  further  pleaded  that  he  was  living separate from  Chandrika who  had a quarrel with him. He was not doing  any pairvi  in  the  murder  case  of  Chandrika. According to  him Lakhpati and Sripal were leading the gange of dacoits  and the  present crime might have been the handy work of  this gange.  A-11 pleaded  that he  had  no  grudge against the  family members of the complainant on account of civil dispute.  Bhuwandeshwari had obtained a decree against his father  Prem  Giri  but  the  appeal  against  the  said judgment and  decree is  still pending in the High Court. He has no  concern with  this dispute.  He and his brother A-12 were living  at Gola  where their children were studying and they were  not present  at the  time when  the incident took place. A-1  in his  defence examined  Sher Ali  (D.W.1). The other three  defence witnesses were examined on behalf of A- 11 and  A-12. The appellants pleaded that they were innocent and  they  be  acquitted.  The  charge-sheet  was  submitted against 24 accused persons but however Prem Giri (A-10) died during the  pendency of  trial and,  therefore, trial abated against him. (11) In order  to bring  home  the  guilt,  the  prosecution mainly relied  upon the  evidence of  two star witnesses who claimed  to   have  seen  the  entire  occurrence.  The  eye witnesses were  Mahendra Kumar  s/o Sukhdarshan  (P.W.1) and Lallu Ram  (P.W.2) who was residing in the adjacent house of Shambhu Dayal, brother of Kamlesh (since deceased). Dr. S.K. Shukla (P.W.3)  conducted the post mortem examination on the headless dead  body of Surendra and also on his severed head (Ex.K-3). Dr.  A.K. Gupta  (P.W.8) held  the autopsy  on the skulls of deceased Bhuwaneshwari and Sukhdarshan (Ex.K-6 and K-7 respectively).  Dr. S.K.  Tiwari (P.W.9)  conducted  the autopsy on  the dead  bodies of  Sandeep, Bhuwaneshwari  and Sukhdarshan.  Post  Mortem  reports  are  Exs.8,  9  and  10 respectively. Dr.  A.K. Srivastava  conducted the autopsy on the dead  body of  kamlesh. Dr. A.K. Patni (P.W.10) examined Kamlesh when  he was  brought in  an  injured  condition  on 24.6.90 at  8.45 p.m. SI Surendra Kumar Pandey (P.W.14), the Investigating Officer  with the  assistance of two other SIs completed the entire investigation, in addition to the above ocular  evidence   the  prosecution  also  relied  upon  the evidence relating  to the  recovery of various incriminating articles  including   the  recoveries   of  three  heads  of Bhuwaneshwari,  Sukhdarshan   and   Surendra.   As   already indicated above the defence also examined four witnesses. (12) The First  Additional Sessions  Judge, Kheri on careful scrutiny  of   oral  and   documentary  evidence  on  record convicted A-1,  A-2, A-3,  A-4, A-5, A-6, A-7, A-8, A-11, A- 12, A-13,  A-20, A-21,  A-22, A-23 and A-24 for the offences punishable under  Sections 302,  302/149, 404, 148, 436, 449 and 201  IPC. A-1 was also convicted under Section 25 of the Arms Act.  After hearing  the parties  and their  respective counsel  the  trial  court  considered  the  complicity  and culpability of  A-1, A-2, A-4 and A-13 and the common object shared by  them under  Section 149  IPC. Shyam Manohar (A-1) was held responsible for committing the murders of Surendra, Sukhdarshan, Bhuwaneshwari  and for  murders of  Kamlesh and Sandeep with  the aid  of Section  149 IPC.  Suresh  (A-13), Shivram  (A-2)   and  Harish  (A-4)  were  held  liable  for committing murders  of Surendra,  Sukhdarshan, Bhuwaneshwari and Sandeep  under Section 302/149 IPC, and accordingly each

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one of  them  was  awarded  the  extreme  penalty  of  death sentence. For other offences they were awarded various terms of sentences.  As regards A-03, A-5, A-6, A-7, A-8, A-11, A- 20,  A-21,  A-22,  A-23,  A-24  the  trial  Court  inflicted sentence of life imprisonment on each of these accused under Section 302/149  IPC and  also various terms of sentences on other counts.  Substantive sentences  were  ordered  to  run concurrently. The Additional Sessions Judge accordingly made a reference  under Section 366 Cr.P.C. to the High Court for confirmation of the death sentences. The trial court however acquitted A-9,  A-14, A-15, A-16, A-17, A-18 and A-19 of all the charges. The convicts including the condemned perisoners [referred appeals  to the  High Court.  The State Government also preferred  appeals to the High Court for enhancement of sentences as  also against the order of acquittal in respect of seven  accused persons.  All  these  appeals  were  heard together by the High Court of Allahabad Bench at Lucknow and vide its  impugned judgment  dated 28.1.1997  dismissed  the appeals filed  by the  convicts and  the condemned prisoners and partly  allowed  the  appeal  filed  by  the  State  and enhanced the sentence of life imprisonment to death sentence in respect of Prakash (A-8), Rajendra (A-6) and Ravinder (A- 5); the  order of  acquittal in respect of A-14, A-15, A-16, A-17, A-18  and A-19  was reversed  and they  were convicted under Sections  148, 436,  449, 201, 302/149 IPC and each of them has  been sentenced  to life  imprisonment and  various other terms  of sentences  on other  counts.  The  order  of acquittal of Raghubar (A-9) has been upheld. The net result, therefore, is  out or  24 charge  sheeted accused  Prem Giri died, Raghubar  (A-9) stood  acquitted, 7  accused have been awarded extreme  penalty of  death and  remaining 15 accused have been  awarded life  imprisonment  for  committing  five murders. The sentences awarded to other accused persons were upheld by  the High  Court vide its judgment and order dated 28.1.1997. It  is against  this judgment and order passed by the High Court, the appellants have preferred these criminal appeals to  this Court.  Since 7  accused persons  have been awarded death  sentence and  they  have  filed  the  appeals through jail,  we thought  it fit in the interest of justice to appoint a Senior counsel to assist the court. Accordingly Mr. A.K.  Ganguli, Sr.  Counsel was  appointed as  an amicus curiae to  represent  by  Shri  Sushil  Kumar,  Learned  Sr. Counsel. Shri  Shakil Ahmed Syed, Learned Counsel also filed Criminal  Appeal   No.593/97  on   behalf  of  some  of  the accused/appellants other  than the  condemned prisoners. The State was  represented by  Dr. N.M.  Ghatate, Learned Senior Counsel. All  these appeals  were heard together, since they arise out of a common judgment. (13) At the  outself it  needs to be stated that counsel for the parties  were given  full opportunity to represent their respective cases  since  seven  accused  persons  have  been awarded capital  sentence and  other  15  accused/appellants have been  awarded sentence  of life  imprisonment.  We have carefully scrutinized  the oral evidence and other materials placed on  record with the assistance of the learned counsel for the  parties and have also gone through the judgments of the courts below. (14) The very  narration of  facts given  in  the  preceding paragraphs would  indicate the  magnitude of  the  crime  in question. The  two eye  witnesses to  the occurrence are the close relatives  of the  deceased. The prosecution sought to prove the  motive against  the  accused  in  committing  the present crime.  It is  on this background we are required to scrutinize and  appreciate the evidence of the eye witnesses with utmost care and caution.

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(15)  The  prosecution  case  substantially  rested  on  the evidence  of  two  eye  witnesses,  namely,  Mahendra  Kumar (P.W.1) and Lallu Ram (P.W.2). mahendra Kumar (P.W.1) is the son  of  Sukhdarshan  (since  deceased)  and  grand  son  of Bhuwaneshwari (since deceased). Sandeep (since deceased) was his brother  and Surendra,  another deceased was his cousin, Kamlesh (since deceased) was a  close relative.      Coming to  the evidence of actual occurrence which took place on  June 23,  1990 at  about 5.00  p.m. it needs to be stated that  a complaint was lodged on the very same evening at about  9.05 p.m.  in the  police station  at Mitauli at a distance of  15 kms.  from Bajarkha  village. Mahendra Kumar (P.W.1) in  his evidence  testified that  at about 5.00 p.m. all the  24 accused  along with 8 to 10 unidentified persons came in  the direction  of Kamlesh’s  house.  At  that  time Mahendra Kumar  (P.W.1) and  Surendra were  sitting near the couldron and  Sukhdarshan was  sitting towards  the north of the kolhoo.  A-1, A-2,  A-4 and A-13 were armed with bankas, Prem Giri  (A-10) (now  dead) was armed with a DBBL gun, A-3 to A-16  were armed  with SBBL  guns, A-20  was armed with a country made SBBL gun and the remaining accused persons were armed with country made pistols and guns He then stated that the accused  persons demanded that Ram Gulam and Sheo Pal be called and  they wanted  to see how they would remain alive. The accused  persons then  chased Sukhdarshan  who  ran  and entered into the house of Shambhu Dayal and raised an alarm. Shambhu Dayal  and Shakuntala  Devi  (complainant’s  mother) took Sukhdarshan inside the house and tried to shut the door but one  of the  accused inserted  the  barrel  of  the  gun through door  and fired which hit Kamlesh Kumar. The accused then opened  the door and fired at Sukhdarshan who fell down in the  courtyard. A-2, A-4 and A-13 then caught hold of the legs and  hands of  Sukhdarshan and thereafter A-1 assaulted him with Banka and severed his head which he kept in a piece of cloth.  The accused  persons then surrounded the house of P.W.1 and started demolishing the walls. They asked Surendra to come  out as  he bolted the door of his room from inside. A-1 asked  his associates  to  sprinke  the  diesel  on  the chappar and  also pour  it into the room and set it on fire. Accordingly some  of the  accused took  the diesel  from the drum and one of them climbed up the chappar with the help of a ladder,  sprinkled the  diesel on  the  chappar  and  also poured the  same into  the room and thereafter the house was set on  fire. Sandeep,  the brother of the complainant, aged about 10 years, came out and abused the accused whereupon A- 6 fired at him as a result of which he fell down. A-5 and A- 8 then  lifted Sandeep  and threw him into the fire. Sandeep was roasted  alive. The  witness further  testified that the house, wherein  Surindra was  hiding, when  caught fire,  he came out  of the said house and tried to run away but he was gun down.  He fell  down in  the kitchen.  A-4, A-2 and A-13 then overpowered  him by catching hold of his arms, feet and thereafter   A-1 assaulted  him with  Banka and  severed his head and  kept it  in the same piece of cloth with the other head. The  witness then  stated  that  Bhuwaneshwari  (since deceased), his  grand father,  who was  returning  from  the weekly market,  when saw  the accused persons in action came near and  requested them  not to  kill  the  family  members whereupon he  was fired  and thereafter  A-4, A-2  and  A-13 overpowered him. A-1 then assaulted Bhuwaneshwari with Banka and severed  his head and kept it in the same piece of cloth where two  heads were  already kept. He then stated that the accused persons  made a  search for Sheo Pal who was alleged to have  taken part  in committing  the murder of Chandrika, the brother  of A-1, by severing his head but Sheo Pal could

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not be traced. P.W.1 further stated that the accused persons were using  the firearms  freely and  created a  terror. The incident continued  for one  and a  half hour.  The  accused personals then  carried the  three  heads  with  them  in  a procession  celebrating  their  victory  and  were  shouting slogans "Shyam  Manohar  Zindabad,  Nandlal  and  Prem  Giri Zindabad and Lakhapat Zindabad". Then they went to the house of Chandrika. The witness was cross-examined at great length but the  defence could  hardly bring  on record any material which would discredit his credibility. The evidence of P.W.1 finds corroboration  from the first Information Report which was  lodged   at  9.05   p.m.  (within  four  hours  of  the occurrence) at  Mitauli police  station. The  complaint  was written after the incident was over. Mahendra Kumar (P.W.1), Lallu Ram  (P.W.2) and  Kamlesh then  went in  a tractor  to lodge the  First Information  Report. The  FIR  came  to  be registered against  24 accused persons. It needs to be noted that Mahendra  Kumar (P.W.1)  in his complaint had named the accused persons  with the  weapons which  they were carrying and the manner in which they assaulted five persons who lost their lives in the present crime. The FIR fully corroborates the evidence  of  P.W.1.  The  evidence  of  Mahendra  Kumar (P.W.1) does  not suffer  from any  infirmity. We  have also scrutinized  the  evidence  of  Lallu  Ram  (P.W.2)  and  it corroborates in  all material  particulars the  evidence  of Mahendra Kumar  (P.W.1). The trial court as well as the High Court had  scrutinized their  evidence  very  carefully  and accepted the  same as  truthful. We  concur with  the courts below as  regards appreciation  of the evidence of these two witnesses. (16) Mr. A.K.  Ganguli, Learned Senior Counsel appearing for the condemned  prisoners, Mr.  Sushil Kumar,  Learned Senior Counsel and Mr. Shakil Ahmed Syed, Learned Counsel appearing for the  life convicts  urged that  the  conviction  of  the accused is based on the evidence of interested witnesses and the same  be  not  accepted  as  truthful  inasmuch  as  the presence of  these witnesses  at the  time of occurrence was extremely doubtful.  It was  contended that  23.6.90  was  a market day  of Bajarkha  village and  these  witnesses  also admitted that the market is at a distance of a furlong where many villagers had come for purchases. The witnesses further admitted that  many persons  had gathered  at the  place  of occurrence, if this be so it was very much necessary for the prosecution to  examine some  independent witnesses  to lend assurance to  the credibility  of the  evidence of these two eye witnesses.  These submissions  do not impress us at all. Now a  days it  is a  common tendency that so outsider would like to  get involved  into criminal  case much  less in the crime of  present magnitude  and, therefore,  it  was  quite natural that  no independent  witness would  come forward to assist the prosecution. It is well settled that the evidence of witnesses  cannot be  discredited only on the ground that they are  close relatives  of the deceased persons. All that is required  in such  a situation  is that  the  court  must scrutinize the  evidence of  such witnesses with utmost care and caution. The magnanimity of the present crime and nature of prosecution  evidence has  put us  on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We  have done this exercise and we are unable to be persuaded to  discard the evidence of these two witnesses on the grounds  urged before  us. The  evidence of  both  these witnesses   in    our   considered    view   is   absolutely straightforward, unblemished  and without any infirmity. The First Information Report which was lodged within four hours, naming  all   the  accused   also  lends  assurance  to  our

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conviction that  the evidence  of  these  two  witnesses  is trustworthy and  cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected. (17) It was  then contended  by Mr.  Sushil Kumar  that  the claim of the complainant that he lodged the FIR at 9.05 p.m. is false.  According to  him if  the FIR  was registered  as alleged there  was no reason whatsoever why the copy thereof was not  sent to  the  Illaqa  Magistrate  at  the  earliest opportunity. As  regards the  contents of  the FIR  he urged that it was impossible for any human being to write down the complaint with such details when four dead bodies were lying of which three were without heads in the house. The contents of the  complaint manifestly  suggest that  it was  an after thought exercise  with the  help of  police or  somebody  to spread a wide net and involve as many accused as possible to take revenge. He, therefore, urged that the complaint lodged by Mahendra Kumar (P.W.1) be treated a false document and be not accepted for the purpose of seeking corroboration to the evidence of P.W.1. He also urged that the complainant at the relevant time was serving at a different place and his claim that he  had come  on leave  for  two  days  was  totally  a concocted plea. According to him the complainant was brought to the  village at  a later point of time and the police had manipulated entire prosecution story. We see no substance in any of  these contentions  for the  simple reason  that  the police machinery  reached the  place of  incident  within  a short time i.e. at about 11 p.m. and in fact the evidence of SI  Pandey   (P.W.14)  would   show  that   the  wheels   of investigating  machinery  started  moving  during  the  same night. The  statements of  some of the persons were recorded during the  same night.  The inquest on the dead bodies were carried out  early in the morning of June 24, 1990. There is nothing in  the evidence  of SI  Pandey (P.W.14) to indicate that he  had ante  dated all  these documents to suit to the complainant’s version.  There was  no earthly  reason for SI Pandey (P.W.14)  to implicate  and spread the net so wide as contended for  the accused  to arraign 24 accused persons in the present  crime. To  our mind  it is  only a  figment  of imagination to contend that the investigation carried out by the investigating  machinery was  ante dated at the instance of the  complainant. It  is true that the complainant at the relevant time  was posted at a far of place but he testified that he  had come to the village Bajarkha on two days’ leave as he  had not come till then to his village after he joined the service.  This explanation given by the witness is quite plausible and  the courts  below were right in accepting his presence at  the time  of occurrence.  It is  also true that there was  a delay  in forwarding the copy of the FIR to the Illaqa Magistrate  but that  circumstance would not demolish the other  positive and  credible evidence  on record.  This would  only   show  how   in  such   a  serious   crime  the investigating agency  was not careful and prompt as it ought to be. (18) It was then contended for the appellants that if really the incident  was reported  at 9.05  p.m.  then  surely  the inquest reports  which were  prepared on  the following  day must mention  the title  of the crime. But it was left blank and, therefore,  this omission  was a  serious infirmity and demolishes the  very substratum  of the prosecution based on the first  Information Report which is a concocted document. At the  first flush  the argument  appeared to us attractive but on scrutiny and consideration of the materials on record we are  unable to  accept this  submission.  If  really  the complaint was  not lodged at 9.05 p.m. then the police could not have  reached at  the place  of occurrence at 11.00 p.m.

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Such minor  omission is  nothing but  a  bonafide  error  or casual approach  on the  part of  the  investigating  agency which does  not affect  the substratum  of  the  prosecution story. It  was then  urged that Kamlesh was taken the police station in  an injured  condition but he was not sent to the hospital for  treatment. In  fact Kamlesh was not traced for the whole  night and  only on  the following day he appeared and was admitted in the hospital where he died after 17 days due to  septicaemia. It  was, therefore,  urged that neither Kamlesh nor  the complainant ever went to the police station to lodge  a complaint  at 9.05  p.m. and  this complaint was manufactured at a later stage with the connivance of police, We see no substance in this contention also because the fact remains that  Kamlesh was  injured during  the  incident  in question. If  he was  not sent  to the  hospital for medical examination and  treatment by  the investigating  agency  no fault could be found with the complainant’s evidence and the FIR (Ex.  Ka-1). In  these circumstances  we see no merit in all these contentions raised on behalf of the appellants. (19) No serious arguments were advanced before us as regards the cause of death of any of these five deceased persons. It was also  not seriously  challenged that  the finding of the courts below  that Bhuwaneshwari,  Sukhdarshan, Surendra and Sandeep met  with homicidal  death during  the  incident  in question.  Suffice   it  to   mention  that   Bhuwaneshwari, Sukhdarshan and Surendra had sustained many incised injuries due to  assault by Banka on their vital parts in addition to the prosecution  was first  fired at  by A-6 and then he was thrown into the smouldering fire. The injuries caused on his dead body  either by  fire arm  or by  banka  could  not  be detected in  the post-mortem  report for  the obvious reason that his  body was completely charred. The autopsy report of Sandeep also  did not  indicate that  any pellet  was  found embeded in  the body  or any  pellet could be recovered from the place  where he  was burnt to death. This fact has got a relevance when  we consider  the death  sentence awarded  to Rajendra (A-6).  After going through the medical evidence on record we  have no  manner of  doubt that these four persons met with  the homicidal deaths. They were brutally murdered. As far  Kamlesh (since deceased) was concerned it was proved beyond any  pale of  doubt that  he was  the first person to sustain gun  shot injuries  and died  in the hospital due to septicaemia which  was the  result of injuries on his person during occurrence in question. (20) Shri Sushil Kumar, Learned Senior Counsel appearing for the life  convicts/appellants urged  that they were roped-in in the  present crime  with the  aid  of  Section  149  IPC. According to  him the common object of the unlawful assembly as alleged  by the  prosecution was  to take revenge against Ram Gulam  and Sheo  Pal who  alleged to  have committed the murder of  Chandrika by  severing his  head. If this was the common object  of the unlawful assembly it could not be said that these  life  convicts/appellants  assuming  to  be  the members of  such an unlawful assembly shared the same common object which  the assailants  of five  victims  had  and  in pursuance thereof  committed the  murders  in  question.  He urged that  these convicts/appellants had nothing to do with the murder  of Chandrika  and, therefore,  theory of revenge against any  of the  members of the complainant’s family had no basis.  In the absence of specific proof of common object of the  unlawful assembly  to commit the murders in question he  urged   that  life  the  convicts/appellants  cannot  be convicted with  the aid  of Section  149 IPC.  In support of this contention  he drew our attention to three decisions of this Court:  (i) Shambhu  Nath Singh and Others vs. State of

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Bihar AIR  (1960) SC  725 (ii)  Bhudeo Mandal and Others vs. State of  Bihar (1981)  2 SCC  755; and (iii) Raghubir Singh and Others  vs. State  of Punjab  (1996) 9  SCC 233. We have very carefully  gone through  these  decisions  and  in  our considered view in the facts and circumstances of this case, the ratio  laid down  in any of these decisions will have no application. Taking  the prosecution  case as  it is  if the object of the unlawful assembly was to take revenge upon Ram Gulam and  Sheo Pal  and after coming to know that they were not available  at the  house of  Bhuwaneshwari and  Surendra (both since deceased), there was no reason for these accused persons   to    continue   to    fire   on   these   victims indiscriminately; to  catch hold  of the four victims one by one; severe  the  heads  of  three  persons  and  keep  them together in  a piece  of cloth;  and threw Sandeep into then smouldering fire.  What sin  the  young  boy  of  10  years, Sandeep had  committed so  that he  also could not have been spared from  the assault?  He was  totally innocent  and was hardly of  an age  to understand  the rivalery  between  the parties to take side of one or the other. He was thrown into the fire  and  roasted  alive.  Injuries  sustained  by  the deceased persons unmistakably indicated that it could not be the job  of handful  of persons. It was pre-planned and well thought of  design to commit genocide. It is in this context if we read the evidence of P.W.1 and P.W.2 we have no manner of  doubt  that  the  accused  persons  formed  an  unlawful assembly and  the object  of that  assembly was  not only to take revenge  against Ram  Gulam and  Sheo Paul  but also to take revenge upon the family members of Bhuwaneshwari as Ram Gulam and  Sheo  Pal  were  related  to  Sukhdarshan  (since deceased) and the accused persons were under the belief that the victims  were giving shelter to them, All the appellants in our  considered view  formed an unlawful assembly with an object to  take revenge  against Ram  Gulam and Sheo Pal and also to  commit mass  murders in  that process  to prove the supermacy and  create a  terror in  the minds  of the family members of  Bhuwaneshwari. The  occurrence in  question  was full of  revenge which  was deep-rooted  in  the  minds  and action of  the accused  persons and  they were determined to take revenge  in the  same manner  in  which  Chandrika  was murdered. Apart  from this we see no difficulty holding that the unlawful  assembly could  develop a common object on the spur of  moment to commit the massacre of the family members of Bhuwaneshwari. We, therefore, see no reason whatsoever to differ from the findings of the courts below that the common object of  the unlawful  assembly was  to  commit  the  mass murders of  the family  members of  Bhuwaneshwari. There  is also another  angle  to  judge  the  common  object  of  the unlawful assembly  in the present crime and that is the mode of brutalty.  Chandrika was alleged to have been murdered by Ram Gulam  and Sheo  Pal (trial  of both  is  pending).  The manner in which Chandrika was done to death and his head was severed the  accused wanted  to take  revenge  in  the  same manner and  for this  reason the  modus operandi  adopted by them was to cause firearm injuries to these three persons on a non-vital  part of  the  bodies  so  that  they  would  be immobilized and  then cause Banka injuries and at the end to severe their  heads. Only  one  gun  shot  would  have  been sufficient to  cause  the  death  of  four  victims  as  the assailants were standing at a close range but that could not have satisfied  the ego  and vengence because they wanted to severe the heads of these three victims when they were lying immobilized due  to injuries.  It is for this reason we have started out  judgment by saying that the accused persons had in the  letter and  spirit followed  the primitive theory of

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punishment. (21) Learned  counsel  appearing  for  the  appellants  then contended that  there is  no material on record to hold that the accused  persons had  any enmity  with the family of the deceased. The  prosecution came forward with two fold notice (i) civil  litigation between Prem Giri and Bhuwaneshwari as regards the  "Thakurji’s Trust"  and its  property; and (ii) the accused  persons belonged to the party of Shyam Manohar. The first  part of motive, the civil litigation between Prem Giri and  Bhuwaneshwari ended  in favour of Bhuwaneshwari in the first  court and  the appeal  of Prem  Giri  is  pending before the  Orissa High  Court. In a village such dispute of ten assume  importance out  of proportion. It is, therefore, not surprising  that Prem  Giri joined  the party  of A-1 to settle his  ego and score also. As far as the second limb of the motive  is concerned  it is  the case of the prosecution that the  accused persons  belonged to  the party  of  Shyam Manohar (A-1) who wanted to take revenge against the victims in a  most brutal  and befitting  manner for  murder of  his brother Chandrika.  The two  suspects, namely, Ram Gulam and Sheo Pal  happened to be the close relations of Sukhdarshan. The  appellants/accused   were   under   the   belief   that Sukhdarshan  and   his  other  family  members  were  giving protection to  these two suspects and it was for that reason the accused  persons formed an unlawful assembly and marched towards the  house of  victims to teach a lesson in the same manner in  which Chandrika was done to death and commit mass murders. The  issue of motive in our considered view is well proved in  the facts and circumstances of the case in favour of the prosecution. (22) It was  then contended  for the accused/appellants that the  evidence   of  P.W.1   was   totally   artificial   and unbelievable. To  support his  contention our  attention was drawn to  his evidence  wherein  he  had  stated  that  when accused persons  were assaulting  Kamlesh, Sandeep, Surendra and Sukhdarshan  he was standing in front of them requesting them to  spare his  family members.  If the accused had gone with the common object of committing the mass murders and if Mahendra Kumar  (P.W.1) was  available so  easily yet it was surprising that  not even a scratch was found on his person. It was  almost  easy  for  the  accused  persons  to  finish Mahendra Kumar  (P.W.1) as  well as (P.W.2) but in fact they did not  do  so.  Relying  upon  this  circumstance  it  was contended that  though these witnesses claimed to be the eye witnesses but  their presence  was  extremely  doubtful  and police  with   the  connivance  of  Mahendra  Kumar  (P.W.1) contrived a  false story by spreading a wide net. We are not impressed by this argument at all as the materials on record prove otherwise.  It was  then contended that almost all the accused persons  except A-10  (now dead),  A-11 and A-12 are from the  same family of Jodhey amd Raghubar and the list of accused was  further inflated  by adding  relatives who even did not  stay  in  the  village.  In  this  context  it  was strenuously urged  before us  that the  investigating agency had widened  the net  at the instance of P.W.1 to involve as many accused  as possible.  This argument  against does  not detain us  for any  longer because  the evidence  of two eye witnesses was  found to be acceptable and trustworthy and we do not  see any  scope to  give even any benefit of doubt to any one  of these accused persons for the offences for which they have been convicted. (23) At this  stage we  deem it  necessary to  refer to  the defence evidence.  A-1 examined  Sher Ali (D.W.1) to support his plea  of alibi. Sher Ali (D.W.1) stated that A-1 used to stay in  the orchard situated in between Mekhnapar and limra

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which is away from the place of occurrence. This evidence in our considered  view does not on prepondrance of probability establish the plea of alibi. In this view of the matter this evidence was  rightly not accepted by the courts below. A-11 and A-12  also pleaded alibi and in support thereof examined Maniram Verma (D.W.2) and Surendra Pal (D.W.3) who were then working as  clerks in  Krishak College  Gola. They testified that during  1987-88  children  of  both  the  accused  were studying in  the  said  college.  A-11  and  A-12  in  their statements recorded  under Section  313  Cr.  P.C.  gave  an explanation  that  at  the  time  of  occurrence  they  were residing  at   Village  Gola   where  their   children  were schooling. Sri  Ram (D.W.4)  who was  the teacher at village Piperva stated  that  Bajarkha  village  is  situated  at  a distance of  one km.  but admitted  that he was not teaching the children  of A-11  and A-12.  We have gone through their evidence and  we are  satisfied that their evidence does not prove the  plea of  alibi set  up by  both the  accused.  It cannot be  assumed that  merely because  the  children  were studying at  village Gola, the parents were also residing at that village.  Except this  evidence to  prove the  plea  of alibi no  other evidence  was led on behalf of these accused persons. We  are afraid  that this  evidence even on test of probability can  prove the plea of alibi set up by A-1, A-11 and A-12.  Both the  courts  below  committed  no  error  in rejecting the plea of alibi set up by A-1, A-11 and A-12. (24) Coming to  the question  of sentence  we have heard the learned  counsel   for  the  parties  at  great  length  and considered the  facts and  circumstances of  the  case  very carefully; the  manner in which the incident took place; the role played  by each of the accused and most importantly the extreme brutality  with which  the members  of the  unlawful assembly  acted.   The  question,  therefore,  is  does  the conscience of an ordinary human being not shocked to see the extreme brutality  and disregard  to the  human dignity?  As indicated earlier A-1, A-2, A-4, A-5, A-6, A-8 and A-13 have been awarded  death penalty  by the  High Court. Of these we will take  the case of Rajendra (A-6) first. The trial court awarded him the life imprisonment whereas in an appeal filed by the  State the  High Court  enhanced the sentence of life imprisonment to death. The reason given by the High Court is that some of the accused persons who have been awarded death sentence formed  one group  which must  include A-6  who had played  an  identical  role  and,  therefor,  there  was  no justification to  award this  accused lesser  sentence. With respect we  are unable  to agree  with the  reasoning of the High Court as regards the death sentence awarded to A-6. The role attributed  to Rajendra  as  stated  by  both  the  eye witnesses was  that he  fired from his gun which hit Sandeep whereupon  he   fell  down.  Thereafter  Prakash  (A-8)  and Ravinder (A-5) threw him into the smouldering fire. No other role was  attributed to  A-6 as far as Sandeep is concerned. Dr. S.K.  Tewari (P.W.9)  who performed  the autopsy  on the dead body  of Sandeep could not find any pellet in his body. The prosecution  also could not collect the evidence to show that any  pellet was recovered from the ashes. The dead body of Sandeep  was totally charred and, therefore, doctor could not find  any injury  on his  dead  body.  It  is  in  these circumstances  A-6  could  not  be  bracketed  with  accused persons who  have been  awarded death  sentence. A-6, in our considered view  is entitled to a differential treatment for want of  conclusive evidence  that he  had caused  fire  arm injuries to Sandeep. We must make it clear that this finding by itself  would not absolve A-6 from his culpability in the present crime  with the  aid of  Section 149  IPC as regards

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other  murders.   His  presence   was  proved  beyond  every reasonable doubt  at the time of occurrence. He was a member of an unlawful assembly having a common object to commit the murders in question and in prosecution thereof used his fire arm along  with other accused who were armed with fire arms. In view  of these proved facts we are of the considered view that the  death sentence  awarded to  Rajendra (A-6) was not proper and  instead he  must fall in the group comprising of accused/appellants who  used the  fire arms  and  have  been awarded life  imprisonment. We accordingly convert the death sentence awarded  to Rajendra  (A-6) to  a life imprisonment without upsetting  his convictions  on this  count  as  also convictions and sentences on other counts. (25)  The   next   important   question   that   needs   our consideration is  whether the  death sentence awarded to the six accused  persons, namely, A-1, A-2, A-4, A-5, A-8 and A- 13 is in accordance with law and the guidelines laid by this court. The  earliest decision rendered by the Constitutional bench of  this Court  is in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 this Court observed that in a case of death sentence the  facts and  circumstances must indicate that it is a rarest of the rare case where extreme penalty is called for. The court must pay due regard both to the crime and the criminals. What  is the  relevant weight  to be given to the aggravating and  mitigating factors  depends upon  the facts and circumstances  of the  particular case.  The Court  then observed: "More  often than  not, these  two aspects  are so intertwined  that   it  is  difficult  to  give  a  separate treatment to  each of them. This is so because ‘style is the man’. In  many cases,  the extremely cruel or beastly manner of the  commission of  murder is itself a demonstrated index of the  depraved character  of the perpetrator. That is why, it is  not desirable  to consider  the circumstances  of the crime and  the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and, therefore,  all murders are cruel. But such cruelty may vary in  its degree  of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons"  can legitimately be said to exist". "Life imprisonment is  the rule and death sentence an exception. A real and  abiding concern  for the  dignity  of  human  life postulates  resistance   to  taking  a  life  through  law’s instrumentality. That ought not to be done save in he rarest of rare  cases when the alternative option is unquestionably foreclosed". This  Court has  culled out  certain mitigating circumstances to be considered at the time of exercising the discretion while awarding the extreme penalty. (26) The next  two decisions  on the topic of death sentence are (i) Machhi Singh and Others vs. State of Punjab (1983) 3 SCC 470  (ii) Allauddin  Mian and  Others vs. State of Bihar (1989) 3  SCC 5.  We have  very carefully gone through these decisions. In the light of these decisions we may now advert to the question of sentence. (27) Mr. A.K. Ganguli, Learned Senior Counsel contended that life imprisonment  is the  rule and  death  sentence  is  an exception. There  is no reason to deviate from this rule. He relied upon the above decisions of this Court on this topic. He urged  that the  High Court had committed a serious error while accepting  reference and confirming the death sentence awarded to  A-1, A-2, A-4 and A-13 and further enhancing the sentence of A-5, A-6 and A-8 from life imprisonment to death sentence to  each one  of them.  He  urged  that  there  are several mitigating  circumstances which militate against the death sentence  awarded to  these accused and, therefore, it would be  appropriate to  award life  imprisonment to  these

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accused persons.  The Learned  counsel then  pointed out the mitigating circumstances:  (i) Chandrika, the brother of A-1 was murdered  by Sheo  Pal and Ram Gulam who belonged to the party of  Sukhdarshan (since deceased); (ii) it was a brutal murder wherein Chandrika’s head was severed: (iii) no common object could  be attributed  to  the  unlawful  assembly  to commit the  murders in  question; (iv)  the deceased persons and other  family members failed to disclose the whereabouts of Sheo  Pal and  Ram Gulam  which caused  grave and  sudden provocation and  by reason  of such provocation the incident in question  might have  happened; (v)  six accused  persons belonging to  one family  have ben  sentenced to death; (vi) the sentence  of death  awarded to six accused persons would be a  serious calamity  on the surviving members of the said family; (vii)  all these condemned prisoners belonged to the age group  of 20  and 35 years except A-1, A-2 who were aged about  45   and  40   years  respectively  at  the  time  of occurrence; (viii)  they  do  not  belong  to  the  type  of hardened  criminals   and,  therefore,   they   deserve   an opportunity to reform themselves in their future life. While supporting the  death sentence  of six  above named  accused persons, learned  counsel for  the State  urged that none of these  circumstances   could  be  considered  as  mitigating circumstances  to   commute  the   death  sentence  to  life imprisonment in  facts and  circumstances of  this case.  He enumerated the  circumstances warranting  an extreme penalty and they  are (i)  after finding that Ram Gulam and Sheo Pal were not hiding in the house of P.W.1, the unlawful assembly formed by  the accused  persons ought to have left the scene of occurrence;  (i)  in  Chandrika’s  murder,  none  of  the deceased was  involved; (iii)  there was no provocation from the side  of deceased; (iv) the manner in which four persons were done  to death was most brutal, heneous, ghastly and in total disregard  to the  human dignity; (v) was murders were pre-planned; (vi)  the modus operandi was well thought of in advance; (vii) of five four murders were committed in a most barbaric manner.  Three heads  were severed  and an innocent boy of  ten years  was roasted alive in the smouldring fire; (viii) victory  procession with  three heads raising slogans "Shyam Manohar Zindabad" etc. etc., and thereafter they went towards the  house of  Chandrika; (ix) impact of terror upon the minds of surviving members of the family of the deceased persons;  (x)  motive  coupled  with  vengence  and  revenge against innocent persons to satisfy the ego. (28)  We   have  already   analysed  the   evidence  of  the prosecution as  well as  the  defence.  Look  at  the  modus operandi adopted  by  the  accused  persons  who  formed  an unlawful assembly  and its  common object  was not  only  to commit the  murders of  Sheo Pal  and Ram Gulam but also the commit the  mass murders  of family  members of  Sukhdarshan (since deceased) as they were under the belief that Sheo Pal and Ram Gulam were hiding and taking shelter in the house or Sukhdarshan. The  accused persons  first fired  at  Kamlesh, injured him  and thereafter opened the door and searched for Ram Gulam and Sheo Pal. Kamlesh was immobilised by causing a gun shot  injury. Sukhdarshan  (since deceased)  came out of his room. He was fired at on a non-vital part by immbolizing him and  thereafter the  accused persons  assaulted him with Banka; A-2, A-4 and A-13 held him facilitating A-1 to severe his head.  The accused did not stop there but thereafter the accused persons  assaulted him with Banka; A-2, A-4 and A-13 held him  facilitating A-1  to severe  his head. The accused did not stop there but thereafter they fired at Surendra and assaulted him  by Bankas.  A-2, A-4  and A-13 caught hold of him and  A-1 severed  his head.  Sandeep a  young boy  of 10

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years when  came out  of the room which was then set on fire was bodily  lifted by and A-5 and A-8 who threw him into the smouldering fire.  He was  roasted alive.  Bhuwaneshwari who was returning from the market was fired at and was given the same cruel  treatment by  severing his head. This only shows that they  were thirsty  to severe  the heads from the alive but injured bodies in order to take revenge of the murder of Chandrika. All  the three heads were put together in a piece of cloth  and a  victory procession was taken out by accused giving slogans "Shyam Manohar Zindabad; Nandlal and Premgiri Zindabad etc.,  etc.", and  then they  went to  the house of Chandrika. A Simple question which requires to be considered is as to whether the conscience of a society was not shocked to see  such ghastly and burtal murders? The accused persons had shown  scant regard  for the  human dignity. Upon taking overall view  of the circumstances in the light of the ratio laid down  by this  Court in  the  aforesaid  judgments  and taking into  account the  manner  of  commission  of  crime, motive for  commission of  crime and criminals, magnitude of the crime  and little  regard for  the human  dignity and in particular a young boy of 10 years. (29)  Now   let  us  draw  a  final  balance  sheet  of  the aggravating and  mitigating circumstances  after giving  due consideration to the rival contentions putforth before us as regards six  condemned prisoners.  In  our  considered  view justification clearly  leans in  favour of death sentence to each  of   the  six   condemned   prisoners.   Totality   of circumstances outweighted  the mitigating  circumstances  as pointed out by Mr. Ganguli. Sentence of life imprisonment to these six accused persons would be totally inadequate in the facts and  circumstances of  this case.  The proved facts of this  case  unmistakably  indicate  that  the  present  case squarely falls  within the  ambit of  "rarest of rare" case. Five  murders   were  committed   in  an  extremely  brutal, grosteque, diabolical,  revolting or  dastardly manner which would  arouse   intense  and   extreme  indignation  of  the community. Award  of lesser  punishment to these six accused persons would  disintegrate the  rule of  law upon which the edific of our civilized society stands. (30) Having regard  to the  facts and  circumstances of this case we  are of  the considered view that the High Court had committed no error whatsoever in awarding the death sentence to A-1,  A-2, A-4, A-5, A-8 and A-13. None of the mitigating circumstances placed  before us  could persuade  us to apply the normal  rule of  life imprisonment  in respect  of these accused persons.  It is in these circumstances we are of the considered view  that Criminal  Appeal Nos.  715-716 of 1997 filed by Sheo Ram (A-2) and Harish (a-4) as well as Criminal appeal Nos.  717-720 of  1997 filed  by Shyam Manohar (A-1), Suresh (A-13),  Prakash (A-8) and Ravindra (A-5) are without any merit  and they  are consequently  dismissed. The  death sentence awarded  to each  of  these  accused/appellants  is upheld. We,  however confirm the convictions of Rajendra (A- 6) under  Section 302/149  IPC and  also  as  regards  other offences  but   we  convert   his  death  sentence  to  life imprisonment, subject  to this  modification of sentence his appeal to  stand dismissed.  Criminal Appeal  Nos. 721-24 of 1997 filed  by Ram Pal Verma (A-24), Sankata (A-22), Mathura Prasad (A-21),  Dorey (A-23)  and Lalla (A-3) are dismissed. Criminal Appeal  No.725 of  1997 filed by Rakesh Giri (A-11) and Rajesh  Giri (A-12)  to stand dismissed. Criminal Appeal No. 593  of 1997  filed by  Sriram (A-14),  Rajaram  (A-15), Rampal (A-16),  Itwari (A-17),  Dhakan (A-18) and Srikrishna (A-19) to  stand dismissed. If any of the accused/appellants is on  bail shall  surrender to  his bail  bond forthwith to

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serve out the remaining part of his sentence.