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Masalti Vs. State of U.P. - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1965SC202; [1964]8SCR133
ActsConstitution of India - Article 136; Indian Penal Code (IPC), 1860 - Sections 149 and 302
RespondentState of U.P.
Cases ReferredDalip Singh v. State of Punjab
criminal - death sentence - article 136 of constitution of india and sections 149 and 302 of indian penal code, 1860 - 35 persons held guilty of murder by trial judge and 10 sentenced to death - in appeal high court acquitted 7 and upheld death sentence of ten - appellants allege high court failed to discharge duty properly - judgment indicates arguments examined carefully, evidence accurately summarized and infirmities scrutinised - relevance of argument disclosing enmity between two factions in village admitted - common features of evidence not overlooked - appellants not convicted unless four witnesses gave consistent evidence against them - evidence cannot be disregarded only because it is partisan - mechanical rejection of evidence leads to failure of justice - conclusions reached by.....gajendragadkar, c.j. 1. forty persons were charged with having committed several offences theprincipal one of which was under section 302 read with s. 149 of the indianpenal code. the case against these persons was tried by the first additionalsessions judge at jhansi. the other charges framed against them were under s.307/149, 201/149 & 511, 395, 396, 149 & 449, i.p.c. the learned trialjudge held that none of the charges had been proved against five of the accusedpersons. he also found that the charges under sections 395 & 396 were notproved against any of them. in regard to the remaining charges, he found that35 out of 40 accused persons were guilty. for the major offence charged unders. 302/149, he sentenced 10 accused persons to death and 25 others toimprisonment for life. he also.....

Gajendragadkar, C.J.

1. Forty persons were charged with having committed several offences theprincipal one of which was under section 302 read with s. 149 of the IndianPenal Code. The case against these persons was tried by the first AdditionalSessions Judge at Jhansi. The other charges framed against them were under s.307/149, 201/149 & 511, 395, 396, 149 & 449, I.P.C. The learned trialJudge held that none of the charges had been proved against five of the accusedpersons. He also found that the charges under sections 395 & 396 were notproved against any of them. In regard to the remaining charges, he found that35 out of 40 accused persons were guilty. For the major offence charged unders. 302/149, he sentenced 10 accused persons to death and 25 others toimprisonment for life. He also directed that the said accused persons shouldundergo different terms of imprisonment for the remaining offences; but for thepurpose of the present appeals, it is unnecessary to refer to them.

2. After the learned trial Judge pronounced his judgment on the 31stDecember, 1962, the 35 accused persons who had been convicted by him preferredthree appeals between them before the Allahabad High Court, whereas thesentences of death imposed on 10 accused persons by the learned trial Judgewere submitted to the said High Court for confirmation. The High Court has heldthat 7 out of the 35 appellants before it were not proved to have committed anyof the offences, and so, they were ordered to be acquitted. In regard to theremaining 28 appellants, the High Court has confirmed the orders of convictionand sentence imposed on them by the trial Court. In the result, the referencemade to the High Court for confirmation of the sentences of death imposed onthe 10 accused persons by the trial Court was allowed. It is against thisdecision of the High Court that the present five appeals have been brought tothis Court by special leave, and the number of accused persons who have broughtthese appeals before us is 16.

3. Before dealing with the points raised in these appeals, it is necessaryto set out very briefly the relevant facts on which the prosecution caseagainst the appellants and their co-accused substantially rests. The incidentwhich has given rise to the present criminal proceedings took place on the 29thNovember, 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 betweentwo factions. One group was led by Gayadin who and four other members of hisfamily were murdered on the said date. All these murders were committed,according to the prosecution, by the members of the rival faction amongst whomare included the present appellants before us. Criminal proceedings havecontinued between the parties for several years almost without interruption.The rival group was led by Laxmi Prasad alias Laxmi Narain who is one of theappellants in this Court. In the last election of the village Panchayat LaxmiPrasad succeeded as Pradhan of the village and defeated the candidate set up byGayadin. On the 28th November, 1961, a boundary dispute led to an incidentbetween the members of the two groups. This dispute related to two fields oneof which belonged to Gayadin and the other to Laxmi Prasad. Attempts were madeto settle this dispute by arbitration, but they failed. It appears that LaxmiPrasad and the members of his group did not agree to submit to any arbitrationand they left the meeting called for the purpose threatening that they wouldsee that the matter in dispute between them was settled the next day. It is onthis grim note that the incident of the 28th November ended.

4. On the 29th November in the early morning, Bahoran, one of the sons ofGayadin, had gone out to ease himself. He was then carrying a pharsa. In thefield he met Laxmi Prasad who attacked him with a lathi. Bahoran retaliatedthis attack with his own pharsa and in the scuffle the nose of Laxmi Prasad wasinjured 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 thewhole crowd belonging to this faction. Bahoran eased himself and returned tohis house. Soon thereafter he washed his hands and went to the north where hisfather, brothers and other relations were warming themselves by fire. At thatstage, Ram Prasad and Dayaram rushed to the scene and informed them that LaxmiPrasad and his companions were all armed with gums, spears, swords, gandasasand lathis and were proceeding to the house of Gayadin determined to kill allthe members of Gayadin's family. On receiving this alarming information,Gayadin and his friends and relatives thought of proceeding towards the houseof Gayadin. About that time, Laxmi Prasad and his companions reached near thehouse of Gayadin whereon Laxmi Prasad fired a gun. Bhagwati was carrying alarge quantity of cartridges in the folds of his dhoti and was instigatingLaxmi Prasad to fire at everyone sitting near the fire to the north of thehouse and to exterminate the family of Gayadin. On hearing this, everyone ofthe group sitting near the fire rushed into the house and closed the doors. Theassailants then broke open the doors of the house and entered the sehan ofGayadin. Inside the house the assailants pursued Gayadin on the upper storeyand killed him there. Brindaban, Radha Saran and Dayaram were hiding indifferent rooms of the house; the doors of these rooms were broken open and allthe three of them were shot dead. Bahoran and Shiroman Singh, both sons ofGayadin, escaped through the tiled roof into the cattleshed of Harbans which issituated towards the south-east of Gayadin's house. Shiroman concealed himselfin the godown while Bahoran concealed himself in the room in the upper storeywhere chaff had been stored. After killing Gayadin, Brindaban, Radha Saran and Dayaram,the assailants mercilessly dragged the bodies of the victims out of the houseof Gayadin and began their search for Bahoran and other male inmates of thehouse. When the dead bodies were thus being dragged, Gori Dulaiya wife ofGayadin rushed after the assailants and implored them not to take the deadbodies away. One of the assailants, however, struck her with a stick and shewas forced to retrace her steps. The dead bodies were then dragged towards theeast of the house. On reaching the cattleshed of Harbans, the assailants brokeopen the outer door of the house and entered into it. They then injured Harbansand managed to discover Shiroman Singh who was promptly killed. The five deadbodies were then taken into the field of Bhagwati. In the field, two big pilesof cowdung cakes were prepared. On one of the piles the bodies of Gayadin,Brindaban, Radha Saran and Dayaram were placed and on the other ShiromanSingh's body was put. Kerosene oil was sprinkled on the bodies and fire was setto them. That, in brief, is the story of the gruesome murders which have givenrise to the present proceedings.

5. When the assailants had left the house of Gayadin dragging the deadbodies with them, Bahoran came out of his hiding place and rushed to the PoliceStation Krichh and lodged the First Information Report at about 11 O'clock. Inthis report, he gave all the material details in regard to the commission ofthe offence and named the 35 persons as the assailants. In fact, the firstcommittal order passed on the 31st March, 1962 in the present proceedingsreferred to 35 assailants. Later, five more persons were added to the list ofassailants by the committal order made on the 14th May, 1962. On receiving thefirst information report, the police party rushed to the scene occurrence oncycles and they put off the burning fire and took out the half burnt bodies ofthe five murdered persons. These bodies were identified and were sent for postmortem examination. The injured persons Harbans, Ram Prasad, Mansa Ram and Smt.Gori Dulaiya were sent for medical examination. Post-mortem examination wasthen held on the dead bodies and statements of witnesses were recorded in thecourse of investigation. That led to the several charges framed against 40persons and ultimately their trial in the Court of the First AdditionalSessions Judge at Jhansi.

6. The case for the prosecution is sought to be established by the testimonyof 12 eye-witness. All the accused persons denied that they had anything to dowith the offences charged. Their main contention was that a false case had beenmade against them and it was attempted to be supported by evidence of witnesseswho were hostile to them and who had no regard for truth. The trial Judge, insubstance, rejected the defence plea and accepted the prosecution evidence,except in the case of five accused persons. In appeal, several contentions wereraised 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 HighCourt, however, reversed the conclusion of the trial Court in respect of 7accused persons with whose cases we are not concerned in the present appeals.The 12 persons who gave direct evidence against the appellants and theirco-accused persons are : Bahoran P.W. 1; Basanti Lal P.W. 2; Rameshwar DayalP.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; andKishori Lal P.W. 20. The High Court has critically examined the evidence givenby these witnesses and has held that the evidence of Bahoran and Prabhu Dayalmay be left out of account as it appeared to the High Court that the saidevidence suffered from material infirmities. The evidence given by theremaining 10 witnesses has, however, been accepted by the High Court assubstantially true and correct.

7. In dealing with this oral evidence, the High Court took into account thefact that most of these witnesses belonged to the faction of Gayadin and must,therefore, be regarded as partisan. It also considered another feature whichcharacterised the evidence of all the witnesses and that was that they gavetheir account of the incident substantially in similar terms and did not assignparticular parts in respect of overt acts to any of the assailants except LaxmiPrasad accused No. 1. The approach adopted by the High Court shows that itdecided to confirm the conviction of the accused persons against whom four ormore witnesses gave a consistent account, and it is by the application of thistest that 7 accused persons have been acquitted. As to the sentence, the HighCourt realised that 10 persons had been ordered to be hanged and that it couldnot be said about all of them, except Laxmi Prasad, that they had actuallyfired a gun and caused the death of any of the five victims. Even so, the HighCourt held that since they all formed members of the unlawful assembly thecommon object of which was to exterminate the male members of the family of Gayadin,they were all equally guilty of murder under s. 301/149, I.P.C. and it wouldnot, therefore, be unreasonable to impose the penalty of death on such of theassailants as 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 28persons who had brought their cases before it in appeal and confirmed thesentences of death imposed on 10 of them.

8. In these appeals, Mr. Sawhney who has addressed the principal argument beforeus on behalf of the appellants, has urged that the High Court has failed indischarging its duty properly when it dealt with the appeals brought before itby the appellants and decided to confirm the sentences of death impose on 10 ofthe accused persons. In support of this argument, Mr. Sawhney has relied uponthe decision of this Court in the case of Jumman & Ors. v. The State ofPunjab : 1957CriLJ586 . In that case, this Court has emphasised thefact that the mandatory requirement prescribed by s. 374 of the Code ofCriminal Procedure shows that in dealing with reference for confirmation ofdeath sentence imposed by the Sessions Judge, the High Court has to considerthe entire case for itself before deciding whether the sentence of death shouldbe confirmed or not. Section 374 provides that the sentence of death shall notbe executed unless it is confired by the High Court. In other words, thesentence of death imposed by the Court of Sessions is not effective until andunless it is confirmed by the High Court. It is only when the High Courtconfirms the sentence of death that it is capable of execution. That is whythis Court emphasised the solemnity of the proceedings brought before the HighCourt under s. 374, and it pointed out under the s. 375, the High Court isgiven the power to admit additional evidence if it thinks necessary to do so.Proceedings brought before the High Court for confirmation of a death sentencegive a right to condemned prisoner to be heard on the merits and to require theHigh Court to consider the matter for itself without being influenced by theconclusions recorded by the Court of Sessions. The conclusions of the HighCourt on the merit in such proceedings must be independent, and so, the HighCourt inevitably has to go into a whole of the evidence, consider all the prosand 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 deathsubmitted to it for its confirmation is fully justified. Mr. Sawhney contendsthat this essential requirement of s. 374 has not been complied with by theHigh Court when it dealt with the appeals brought before it in the presentproceedings. 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 itselfand not hold that the appellants are concluded by concurrent findings of factrecorded by the Court below.

9. We are not impressed by this argument. It is perfectly true that in amurder trial when an accused person stands charged with the commission of anoffence punishable under s. 302, he stands the risk of being subjected to thehighest penalty prescribed by the Indian Penal Code; and naturally judicialapproach in dealing with such cases has to be cautious, circumspect andcareful. In dealing with such appeals or reference proceedings where thequestion of confirming a death sentence is involved, the High Court has also todeal with the matter carefully and to examine all relevant and materialcircumstances before upholding the conviction and confirming the sentence ofdeath. All arguments urged by the appellants and all material infirmitiespressed before the High Court on their behalf must be scrupulously examined andconsidered before a final decision is reached. The fact that 10 persons hadbeen ordered to be hanged by the trial Judge necessarily imposed a more seriousand onerous responsibility on the High Court in dealing with the presentappeals. We have carefully considered the judgment delivered by the High Courtin these appeals and we are satisfied that the criticism made by Mr. Sawhneythat the High Court did not bestow due care and attention on the pointsinvolved in the case, cannot be regarded as well-founded. The judgment showsthat the arguments which were urged on behalf of the appellants, have beencarefully examined, the evidence given by the respective witnesses has beenaccurately summarised and the infirmities in the said evidence closelyscrutinised. The relevance of the argument of the admitted enmity between thetwo factions of the village has been taken into account and the common featuresof the evidence tendered by the witnesses have not been overlooked. Aftertaking into account all the points which were urged before the High Court theHigh Court adopted what it thought to be a safe test before acting on directevidence. It has held that unless at least four witnesses are shown to havegiven a consistent account against any of the appellants, the case against themcannot be said to have been proved beyond reasonable doubt. Having regard tothe manner in which the High Court has dealt with the appeals brought beforeit, we are not prepared to hold that the general criticism made by Mr. Sawhneyagainst the judgment of the High Court can be accepted.

10. In this connection, Mr. Sawhney strongly relied on the fact that theHigh Court has not considered one important point in favour of the defence, andthat is in relation to the failure of the prosecution to tender three materialwitnesses whose names had been shown in the witness-list in the calendar sentby the committing Magistrate to the trial Judge. This witnesses are : RamPrasad, Mansa Ram and Rani Dulhan. It appears that this contention was raisedby the defence before the Trial Court and had been rejected by it. TheGovernment counsel appearing for the prosecution had made an application to thetrial Court expressing his inability to examine the three witnesses for thereason that Ram Prasad and Mansa Ram had been won over by the defence and RaniDulhan, the widow of one of the victims, was suffering from such mental shockthat she was unable t odepose coheremtly. After this application was made andgranted, the learned trial Judge did not insist upon the prosecution examiningthe 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 witnessesshould be examined under s. 540, Cr.P.C. The learned trial Judge rejected theseapplications, and so, the case concluded without the said three witnessesgiving evidence before the trial Court. In rejecting the applications made bythe defence, the learned Judge has carefully examined the validity of thedefences contention that the evidence given by the said witnesses before theCommitting Magistrate showed that they were material witnesses and the plearaised by them that the absence of their evidence would cause prejudice to thedefence, and has held that the evidence which the said three witnesses may givewas not essential for just decision of the case and that it was unreasonable tosuggest that the prosecution had an oblique motive in suppressing theirevidence. This part of the judgment clearly shows that all relevant aspects ofthe matter were examined by the trial Judge before he refused to exercise hispowers under s. 540, Cr.P.C. It is obvious that this contention was not urgedbefore the High Court and so, we find no discussion of the point in thejudgment of the High Court.

11. We are not prepared to accept Mr. Sawhney's argument that even if thispoint was not raised by the appellants before the High Court, they are entitledto ask us to consider that point having regard to the fact that 10 persons havebeen ordered to be hanged. It may be conceded that if a point of fact whichplainly arises on the record, or a point of law which is relevant and materialand can be argued without any further evidence being taken, was urged beforethe trial Court and after it was rejected by it was not repeated before theHigh Court, it may, in proper case, be permissible to the appellants to askthis Court to consider that point in an appeal under Art. 136 of theConstitution; afterall in criminal proceedings of this character wheresentences of death are imposed on the appellants, it may not be appropriate torefuse to consider relevant and material pleas of fact and law only on theground that they were not urged before the High Court. If it is shown that thepleas were actually urged before the High Court and had not been considered byit, then, of course, the party is entitled as a matter of right to obtain adecision on those pleas from this Court. But even otherwise no hard and fastrule can be laid down prohibiting such pleas being raised in appeals under Art.136.

12. In the present case, however, we are satisfied that there is nosubstance in the contention which Mr. Sawhney seeks to raise before us. It isnot unknown that where serious offences like the present are committed and alarge number of accused persons are tried, attempts are made either toterrorise or win over prosecution witnesses, and if the prosecutor honestly andbonafide believes that some of his witnesses have been won over, it would beunreasonable to insist that he must tender such witnesses before the Court. Itis undoubtedly the duty of the prosecution to lay before the Court all materialevidence available to it which is necessary for unfolding its case; but itwould be unsound to lay down as a general rule that every witness must beexamined even though his evidence may not be very material or even if it isknown that he has been won over or terrorised. In such a case, it is alwaysopen to the defence to examine such witnesses as their witnesses and the Courtcan 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 thesewitnesses and the Court, after due deliberation, refused to exercise its powerunder s. 540. Cr.P.C. That is one aspect of the matter which we have to takeinto account.

13. The other aspect of the matter is that the trial Court has found thatthe evidence which these witnesses would have given was not essential for ajust decision of the case. What these witnesses might have said in the SessionsCourt was judged by the trial Court in the light of their previous statementsalready recorded, and that is a finding which is purely one of fact. If thisfinding was not challenged by the appellants before the High Court, we do notsee how they can claim to argue before us now that the said finding iserroneous. Besides, so far as Rani Dulhan is concerned, it seems to us utterlyunreasonable to insist that before permitting the prosecutor not to examine her,evidence should have been led to show that she was suffering from such mentalshock that she was unable to give a coherent account of the tragic events thathappened on that fateful morning. One has merely to recall the fact that fivemale members of her family were butchered to death by the assailants to realisethat 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, thatagain is a matter on which the trial court appears to have been satisfied;otherwise it would have readily acceded to request of the defence to exerciseits power under s. 540, Cr. P.C. We are inclined to think that it is becausethis part of the defence contention was felt to be inarguable that the Advocatefor the appellants did not raise this point before the Court. Therefore, we arenot prepared to allow Mr. Sawhney to take us through the evidence in the caseon the ground that one important contention raised by the defence has not beenexamined by the High Court.

14. Mr. Sawhney has then argued that where witnesses giving evidence in amurder 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 falselymembers of the rival faction out of enmity and partisan feeling. There is nodoubt that when a criminal Court has to appreciate evidence given by witnesseswho are partisan or interested, it has to be very careful in weighing suchevidence. Whether or not there are discrepancies in the evidence; whether ornot the evidence strikes the Court as genuine; whether or not the storydisclosed by the evidence is probable, are all matters which must be taken intoaccount. But it would, we think, be unreasonable to contend that evidence givenby witnesses should be discarded only on the ground that it is evidence ofpartisan or interested witnesses. Often enough, where factions prevail invillages and murders are committed as a result of enmity between such factions,criminal Courts have to deal with evidence of a partisan type. The mechanicalrejection of such evidence on the sole ground that it is partisan wouldinvariably lead to failure of justice. No hard and fast rule can be laid downas to how much evidence should be appreciated. Judicial approach has to becautious in dealing with such evidence; but the plea that such evidence shouldbe rejected because it is partisan cannot be accepted as correct.

15. Then it is urged that the evidence given by the witnesses conforms tothe same uniform pattern and since no specific part is assigned to all theassailants, that evidence should not have been accepted. This criticism againis not well-founded. Where a crowd of assailants who are members of an unlawfulassembly proceeds to commit an offence of murder in pursuance of the commonobject of the unlawful assembly, it is often not possible for witnesses todescribe accurately the part played by each one of the assailants. Besides, ifa large crowd of person armed with weapons assaults the intended victims, itmay 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 differentmembers of the unlawful assembly, but it appears that the guns were used andthat was enough to kill 5 persons. In such a case, it would be unreasonable tocontend that because the other weapons carried by the members of the unlawfulassembly were not used, the story in regard to the said weapons itself should berejected. Appreciation of evidence in such a complex case is no doubt adifficult task; but criminal courts have to do their best in dealing with suchcases and it is their duty to sift the evidence carefully and decide which partof it is true and which is not. In the present case, the High Court has in factrefused to act upon the evidence of Bahoran and Prabhu Dayal, because itappeared to the High Court that the evidence of these two witnesses sufferedfrom serious infirmities.

16. Mr. Sawhney also urged that the test applied by the High Court inconvicting the appellants is mechanical. He argues that under the IndianEvidence Act, trustworthy evidence given by a single witness would be enough toconvict an accused person, whereas evidence given by half a dozen witnesseswhich 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 evidencepertaining to the commission of an offence involving a large number ofoffenders and a large number of victims, it is usual to adopt the test that theconviction could be sustained only if it is supported by two or three or morewitnesses who give a consistent account of the incident. In a sense, the testmay be described as mechanical; but it is difficult to see how it can betreated as irrational or unreasonable. Therefore, we do not think that anygrievance can be made by the appellants against the adoption of this test. Ifat all the prosecution may be entitled to say that the seven accused personswere acquitted because their cases did not satisfy the mechanical test of fourwitnesses, and if the said test had not been applied, they might as well havebeen convicted. It is, no doubt, the quality of the evidence that matters andnot the number of witnesses who give such evidence. But, sometimes it is usefulto adopt a test like the one which the High Court has adopted in dealing withthe present case.

17. Mr. Sawhney then attempted to argue that the High Court failed to giveeffect to the principles enunciated by this Court in the case of Baladin v.State of Uttar Pradesh : 1956CriLJ345 . In that case, it was observed bySinha, J., who spoke for the Court, that it is well-settled that mere presencein an assembly does not make a person, who is present, a member of an unlawfulassembly unless it is shown that he had done something or omitted to dosomething which would make him a member of an unlawful assembly, or unless thecase falls under s. 142, I.P.C. The argument is that evidence adduced by theprosecution in the present case does not assign any specific part to most ofthe accused persons in relation to any overt act, and so, the High Court was inerror in holding that the appellants were members of an unlawful assembly. Theobservation of which Mr. Sawhney relies, prima facie, does seem to support hiscontention; but, with respect, we ought to add that the said observation cannotbe read as laying down a general proposition of law that unless an overt act isproved 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. Inappreciating the effect of the relevant observation on which Mr. Sawhney hasbuilt his argument, we must bear in mind the facts which were found in thatcase. It appears that in the case of Baladin : 1956CriLJ345 , themembers of the family of the appellants and other residents of the village hadassembled together; some of them shared the common object of the unlawful assembly,while others were merely passive witnesses. Dealing with such an assembly, thisCourt observed that the presence of a person in an assembly of that kind wouldnot necessarily show that he was a member of an unlawful assembly. What has tobe proved against a person who is alleged to be a member of an unlawfulassembly is that he was one of the persons constituting the assembly and heentertained along with the other members of the assembly the common object asdefined by s. 141, I.P.C. Section 142 provides that whoever, being aware offacts which render any assembly an unlawful assembly, intentionally joins thatassembly, 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, andentertaining one or more of the common objects specified by the five clauses ofs. 141, is an unlawful assembly. The crucial question to determine in such acase is whether the assembly consisted of five or more persons and whether thesaid persons entertained one or more of the common objects as specified by s.141. While determining this question, it becomes relevant to consider whetherthe assembly consisted of some persons who were merely passive witnesses andhad joined the assembly as a matter of idle curiosity without intending toentertain the common object of the assembly. It is in that context that theobservations made by this Court in the case of Baladin : 1956CriLJ345 assume significance; otherwise, in law, it would not be correct to say thatbefore a person is held to be a member of an unlawful assembly, it must beshown that he had committed some illegal overt act or had been guilty of someillegal 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 unlawfulassembly in prosecution of the common object of that assembly, or such as themembers of that assembly knew to be likely to be committed in prosecution ofthat 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 thatemphatically brings out the principle that the punishment prescribed by s. 149is in a sense vicarious and does not always proceed on the basis that theoffence has been actually committed by every member of the unlawful assembly.Therefore, we are satisfied that the observations made in the case of Baladin : 1956CriLJ345 must be read in the context of the special facts of thatcase and cannot be treated as laying down an unqualified proposition of lawsuch as Mr. Sawhney suggests.

18. In this case, the High Court has carefully examined the evidence and hasmade a finding that the whole group of persons who constituted the assemblywere members of the faction of Laxmi Prasad and they assembled together, armedwith several weapons, because they entertained a common object in pursuance ofwhich the five murders were committed on that day. Therefore, there is nosubstance in the argument that the conclusion of the High Court that theappellants are guilty of the offences charged is not supported by theprinciples of law enunciated by this Court in the case of Baladin : 1956CriLJ345 .

19. It is thus clear that the general grounds of attack urged before us byMr. Sawhney in challenging the validity of the conclusions recorded by the HighCourt fail, and so, there would be no occasion or justification for this Courtto consider the evidence for itself.

20. That leaves one question still to be considered and that has relation tothe sentence of death imposed on 10 persons. Mr. Sawhney argues that inconfirming the sentences of death imposed by the trial Court on 10 accusedpersons in this case, the High Court has adopted a mechanical rule. The HighCourt has held that the 10 persons who carried fire-arms should be ordered tobe hanged, whereas others who have also been convicted under s. 302/149, shouldbe 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 theground that five murders have been committed by some members of the unlawfulassembly of which they were members, and the argument is that unless it isshown that a particular accused person has himself committed the murder of oneor the other of the victims, the sentence of death should not be imposed onhim. In other words, the contention is that if a person is found guilty ofmurder under s. 302/149 and it is not shown that he himself committed themurder in question, he is not liable to be sentenced to death. In support ofthis argument, Mr. Sawhney has relied on certain observations made by Bose J.who spoke for the Court in Dalip Singh v. State of Punjab : [1954]1SCR145 .In that case, what this Court observed was that the power to enhance a sentencefrom transportation to death should very rarely be exercised and only for thestrongest reasons; and it was added that it is not enough for the appellatecourt to say or think that if left to itself it would have awarded the greaterpenalty because the discretion does not belong to the appellate court but tothe trial Judge, and the only ground on which the appellate court can interfereis that the discretion has been improperly exercised. These observations haveno relevance in the present case, because we are not dealing with a case wherethe High Court has enhanced the sentence imposed by the trial Judge at all. Infact, both the trial Court and the High Court are agreed that the sentences ofdeath imposed on 10 persons are justified by the circumstances of the case andby the requirements of justice. As a mere proposition of law, it should bedifficult to accept the argument that the sentence of death can be legitimatelyimposed only where an accused person is found to have committed the murderhimself. Whether or not sentences of death should be imposed on persons who arefound to be guilt not because they themselves committed the murder, but becausethey were members of an unlawful assembly and the offence of murder wascommitted by one or more of the members of such an assembly in pursuance of thecommon object of that assembly, is a matter which had to be decided on thefacts and circumstances of each case. In the present case, it is clear that thewhole groups of persons belonged to Laxmi Prasad's faction, jointed togetherarmed with deadly weapons and they were inspired by the common object ofexterminating the male members in the family of Gayadin, 10 of these personswere armed with fire-arms and the others with several other deadly weapons, andevidence shows that five murders by shooting were committed by the members ofthis unlawful assembly. The conduct of the members of the unlawful assemblyboth before and after the commission of the offence has been considered by thecourts below and it has been held that in order to suppress such fantasticcriminal conduct on the part of villagers it is necessary to impose thesentence of death on 10 members of the unlawful assembly who were armed withfire-arms. It cannot be said that discretion in the matter has been improperlyexercised either by the trial Court or by the High Court. Therefore we see noreason to accept the argument urged by Mr. Sawhney that the test adopted by theHigh Court in dealing with the question of sentence is mechanical andunreasonable.

21. 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. 11Asha Ram who is aged 23 and accused No. 16 Deo Prasad who is aged 24, Ram Saranand Asha Ram are the sons of Bhagwati who is accused No. 2. Both of them havebeen sentenced to death. Similarly, Deo Prasad has also been sentenced todeath. Having regard to the circumstances under which the unlawful assemblycame to be formed, we are satisfied that these young men must have joined theunlawful assembly under pressure and influence of the elders of theirrespective families. The list of accused persons shows that the unlawfulassembly was constituted by members of different families and having regard tothe manner in which these factions ordinarily conduct themselves in villages,it would not be unreasonable to hold that these three young men must have beencompelled 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 deathimposed on them are modified into sentences of life imprisonment. Accordingly,we confirm the orders of conviction and sentence passed against all theappellants except accused Nos. 9, 11 and 16 in whose cases the sentences arealtered to those of imprisonment for life. In the result, the appeals aredismissed, subject to the said modification.

22. Appeals dismissed.

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