Citation – 1965 AIR 202, 1964 SCR (8) 133
Supreme Court of India
Criminal Appeals Nos. 30-34 of 1964
Appeals by special leave from the judgment and order dated October 22, 1963 of the Allahabad High Court in Criminal Appeals Nos. 77 and 78 of 1963.
On 04/05/1964 the Judgment was delivered by Gajendragadkar, C. J.
Summary of Judgment
Forty persons belonging to a village faction were charged with having committed several offences, the principal one of which was under Section 302 read with Section 149 of the Indian Penal Code (IPC). They were put up on a trail before the Additional Sessions Judge at Jhansi. The learned trial judge held that none of the charges has been proved against five of the accused persons. The learned trial Judge found that 35 out of 40 accused persons were guilty. For the major offence charged under Section 302/149 of the IPC the learned trial Judge sentence 10 accused persons to death and 25 others to imprisonment for life.
Three appeals were preferred by the convicted persons to the High Court and the sentence of death came up for confirmation under Section 374 of the Code of Criminal Procedure (CrPC). The High Court acquitted 7 of the appellants and concurring with the findings of the trial Court dismissed the appeals of the rest. The High Court confirmed the sentence of death passed on the 10 accused persons.
The appeals to the Honourable Supreme Court were preferred by those 10 and 6 others by special leave.
Prosecution story in short:
On the 29th November in the early morning, Bahoran, one of the sons of Gayadin, had gone out to ease himself. He was then carrying a pharsa. In the field he met Laxmi Prasad who attacked him with a lathi. Bahoran retaliated this attack with his own pharsa and in the scuffle the nose of Laxmi Prasad was injured and it began to bleed; in fact, a part of the nose was actually cut. Infuriated by this injury, Laxmi Prasad went to his house and collected the whole crowd belonging to his faction. Bahoran eased himself and returned to his house. Soon thereafter he washed his hands and went to the north where his father, brothers and other relations were warming themselves by fire. At that stage, Ram Prasad, Dayaram rushed to the scene and informed them that Laxmi Prasad and his companions were all armed with guns, spears, swords, gandasas and lathis and were proceedings to the house of Gayadin determined to kill all the members of Gayadin’s family. On receiving this alarming information, Gayadin and his friends and relatives thought of proceeding towards the house of Gayadin. About that time, Laxmi Prasad and his companions reached near the house of Gayadin whereon Laxmi Prasad fired a Gun. Bahgwati was carrying a large quantity of cartridges in the folds of his dhoti and was instigating Laxmi Prasad to fire at everyone sitting near the fire to the north of the house and to exterminate the family of Gayadin. On hearing this, everyone of the group sitting near the fire rushed into the house and closed the doors. The assailants then broke open the doors of the house and entered the sehan of Gayadin. Inside the house the assailants pursued Gayadin on the upper storey and killed him there. Brindaban, Radha Saran and Dayaram were hiding in different rooms of the house; the door of these rooms were broken open and all the three of them were shot dead. Gayadin son – Bahoran and Shiroman singh, escaped through the tiled roof into the cattle shed of Harbans which is situated towards the south-east of Gayadin’s house. Shiroman concealed himself in the godown while Bahoran concealed himself in the room in the upper storey where chaff had been stored. After killing Gayadin, Brindaban, Radha Saran and Dayaram, the assailants mercilessly dragged the bodies of the victims out of the house of Gayadin and began their search for Bahoran and other male inmates of the house. When the dead bodies were thus being dragged, Gori Dulaiya wife of Gayadin rushed after the assailants and implored them not to take the dead bodies away. One of the assailants, however, struck her with a stick and she was forced to retrace her steps. The dead bodies were then taken into the field of Bhagwati. In the field two big piles of cowdung cakes were prepared. On one of the piles the bodies of Gayadin, Brindaban, Radha Saran and Davaram were placed and on the other Shiroman Singh’s body was put. Kerosene oil was sprinkled on the bodies and fire was set to them. This was the gruesome murders which have given rise to the present proceedings.
The important point noticed by the Honourable Supreme Court:
(i) Under Article 136 of the Constitution, it may in a proper case, be permissible to the appellants to ask this Court to consider relevant and material pleas of fact and law that were not urged before the High Court. It may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. It is shown that pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeal under Article 136.
(ii) There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. When a crowd of assailants who are member of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly it is often not possible for witness to describe accurately the part played by each one of the assailants. Besides if a large crowd of persons arrived with weapons assault the intended victims, it may not be necessary that all of them have to take part in actual assault.
(iii) It is, no doubt, the quality of the evidence that matters and not the number of witnesses who gave such evidence.
(iv) What has to be proved against persons who are alleged to be a member of unlawful assembly is that he was one of the people constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 of the IPC.
(v) As a mere proposition of law, it should be difficult to accept that the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself. Whether or not sentence of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offences of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on facts and circumstances of each case.
(vi) Three cases need interference. These are the case of accused no. 9 Ram Saran who is aged 18 years , accused no. 11 Asha Ram who is aged 23 years and accused no. 16 Deo Prasad who is aged 24. The end of justice would be properly served if the sentence of death passed on the three accused persons aged 18, 23 and 24, who had joined the unlawful assembly under pressure of their elders were modified to life sentences.
In the result, the appeals are dismissed, subject to the said modification. Appeal dismissed.