Masalti Vs. State of U. P  INSC
152 (4 May 1964)
04/05/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1965 AIR 202 1964 SCR (8) 133
F 1968 SC1438 (4) RF 1971 SC2381 (4) RF 1972
SC1309 (3) RF 1973 SC 1 (6) R 1973 SC 863 (13) R 1974 SC 902 (38) R 1976 SC1449
(15) R 1977 SC 472 (24) RF 1978 SC1647 (6) MV 1982 SC1325 (69) RF 1983 SC 305
(5) RF 1992 SC1751 (2)
Criminal Appeal-Appeal by special
leave-Scope-Murders committed by village faction constituting unlawful assemblySentence
of death, if and when can be passed-Appreciation of evidence-Test -Validity
Prosecution-It must examine an witnesses cited.
Forty persons belonging to a village faction
and constituting an unlawful assembly were put up on trial before the
Additional Sessions Judge under s. 302 read with s. 149 of the Indian Penal
Code and other sections thereof for murdering 5 persons of the other faction
with guns. The trial Judge found 35 of them guilty and sentenced 10 of them,
who carried fire arms, to death and the rest to imprisonment for life. Three
appeals were preferred by the convicted persons to the High Court and the
sentences of death came up for confirmation under s. 374 of the (1) L.R. 59
134 Code of Criminal Procedure. The High
Court acquitted 7 of the appellants and, concurring with the findings of the
trial court, dismissed the appeals of the rest. It confirmed the sentences of
death passed on the 10 accused persons. The appeals to this Court were
preferred by those 10 and 6 others by special leave.
HELD:-(i) In criminal appeals under Art. 136
of the Constitution involving sentences of death it would be improper to refuse
to consider relevant pleas of fact or law on the ground that they had not been
taken before the High Court. when any such point had actually been urged and
not considered by the High Court, the party urging it was entitled as a matter
of right to obtain a decision from this Court. Even otherwise no hard and fast
rule can be laid down prohibiting such pleas being raised in such appeals.
(ii).It -would be unsound to lay down as a
general rule that every witness cited by the prosecution must be examined by it
even though his evidence was not very material or he was known to have been won
over or terrorised.
(iii).....Evidence of a witness could not be
discarded only on the ground that he was a partisan or interested witness,
particularly in cases of murder committed by a village faction, such mechanical
rejection would invariably lead to failure of justice.
(iv).It was not improper for a criminal court
having a large number of offenders and victims to deal with to adopt the test
that the conviction of any particular accused could be sustained only if a particular
number of witnesses gave a consistent account against him. Such a test, even
though mechanical, was not unreasonable.
(v)..Punishment prescribed by s. 149 of the
Indian Penal Code was in a sense vicarious and that section does not
necessarily require that the offence must have been actually committed by every
member of the unlawful assembly. The observations of this Court in Baladin v.
State of U.P. had to be read in the context of that case and could not be
treated as laying down an unqualified proposition of law.
Baladin v. State of Uttar Pradesh, A.I.R.
1958 S.C. 181, explained.
(vi) It was....not correct to say that if a
person was found guilty of murder under s......302/149 of the Indian Penal Code
and it was not shown that he himself.....had committed the murder, no sentence
of death could be inflicted on him.
Dalip Singh v. State of Punjab, [19541 S.C.R.
(vii).....There was no error in the exercise
of their discretion by the courts below in the present case in making a
distinction between the ten persons who carried fire arms and were sentenced to
death and the others, who did not carry fire and were sentenced to imprisonment
for life, under a common charge under ss. 302/149.
I35 (viii)....Regard being had to the circumstances
of the present case, the ends of justice would be properly served if the
sentences of death passed on the three accused persons aged 18, 23 and 24, who
had joined the unlawful assembly under pressure of their elders were modified
to life sentences.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 30-34 of 1964.
Appeals by special leave from the judgment
and order dated October 22, 1963 of the Allahabad High Court in Criminal
Appeals Nos. 77 and 78 of 1963.
M....S. K. Sastri, for the appellant (in Cr.
A. No. 30 of 1964).
I. ..M. Lall and Ganpat Rai, for the
appellants (in Cr.
A. No. 31 of 1964).
V....'Y. Sawhney, for the appellants (in Cr.
0....P. Rana, Atiqur Pehman and C. P. Lal,
for the respondentsMay, 4. 1964. The Judgment of the Court delivered by
GAJENDRAGADKAR, C. J. Forty person were charged with having committed several
offences the principal one of which was under section 302 read with S. 149 of
the Indian Penal Code. The case against these persons was tried by the first
Additional Sessions judge at Jhansi. The other charges framed against them were
under s. 307 / 149, 201/ 149 & SI 1, 395, 396, 149 & 449, 1. P. C. The
learned trial Judge held that none of the char-es had been proved against five
of the accused persons. '.He -also found that the charges under sections 395
& 396 were not proved against any of them. In regard to the remaining
charges. he found that 35 out of 40 accused persons were guilty. For the major
offence charged under s. 302/149, he sentenced 10 accused persons to death and
25 others to imprisonment for life. He also directed that the said accused
persons should undergo different terms of imprisonment for the remaining
but for the purpose of the present appeals,
it is unnecessary to refer to them.
136 After the learned trial Judge pronounced
his judgment on the 31st December 1962, the 35 accused persons who had been
convicted by him preferred three appeals between them before the Allababad High
Court, whereas the sentences of death imposed on 10 accused persons by the
learned trial Judge were submitted to the said High Court for confirmation. The
High Court has held that 7 out of the 35 appellants before it were not proved
to have committed any of the offences, and so, they were ordered to be
acquitted. In regard to the remaining 28 appellants, the High Court has
confirmed the orders of conviction and sentence imposed on them by the trial
Court. In the result, the reference made to the High Court for confirmation of
the sentences of death imposed on the 10 accused persons by the trial Court was
allowed. It is against this decision of the High Court that the present five
appeals have been brought to this Court by special leave, and the number of
accused persons who have brought these appeals before us is 16.
Before dealing with the points raised in
these appeals, it is necessary to set out very briefly the relevant facts on
which the prosecution case against the appellants and their co-accused
substantially rests. The incident which has given rise to the present criminal
proceedings took place on the 29th November, 1961 in village Bilati Khet in the
district of Jhansi at about 8 a.m. It is clear that this village is cursed with
keen rivalry and enmity between two factionsOne group was led by Gayadin who
and four other members of his family were murdered on the said date. All these
murders were committed, according to the prosecution, by the members of the
rival faction amongst whom are included the present appellants before us. Criminal
proceedings have continued between the parties for several years almost without
interruption. The rival group was led by Laxmi Prasad alias Laxmi Narain who is
one of the appellants in this Court. In the last election of the village
Panchayat Laxmi Prasad succeeded as Pradhan of the village and defeated the
candidate set up by Gayadin. On the 28th November, 1961, a boundary dispute led
to an incident between the members of the two groups. This dispute related to
two fields one of which belonged to Gayadin and 137 the other to Laxmi Prasad.
Attempts were made to settle this dispute by arbitration, but they failed. It
appears that Laxmi Prasad and the members of his group did not agree to submit
to any arbitration and they left the meeting called for the purpose threatening
that they would see that the matter in dispute between them was settled the
It is on this grim note that the incident of
the 28th November ended.
On the 29th November in the early morning,
Bahoran, one of the sons of Gayadin, had gone out to ease himself. He was then
carrying a pharsa. In the field he met Laxmi Prasad who attacked him with a
lathi. Bahoran retaliated this attack with his own pharsa and in the scuffle
the nose of Laxmi Prasad was injured and it began to bleed; in fact, a part of
the nose was actually cut. Infuriated by this injury, Laxmi Prasad went to his
house and collected the whole crowd belonging to his faction. Bahoran eased
himself and returned to his house. Soon 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 and Dayaram rushed to the scene
and informed them that Laxmi Prasad and his companions were all armed with
guns, spears, swords, gandasas and lathis and were proceeding to the house of
Gayadin determined to kill all the members of Gayadin's family. On receiving
this alarming information, Gavadin and his friends and relatives thought of
proceeding towards the house of Gayadin. About that time, Laxmi Prasad and his
companions reached near the house of Gayadin whereon Laxmi Prasad fired a gun.
Bhagwati was carrying a large quantity of cartridges in the folds of his dhoti
and was instigating Laxmi Prasad to fire at everyone sitting near the fire to
the north of the house and to exterminate the family of Gayadin. On hearing
this, everyone of the group sitting near the fire rushed into the house and
closed the doors. The assailants then broke open the doors of the house and
entered the sehan of Gayadin.
Inside the house the assailants pursued
Gayadin on the upper storey and killed him there. Brindaban, Radha Saran and
Dayaram were hiding in different rooms of the house; the doors of these rooms
138 were broken open and all the three of them were shot dead.
Bahoran and Shiroman Singh, both sons of
Gayadin, escaped through the tiled roof into the cattleshed of Harbans which is
situated towards the south-east of Gayadin's house.
Shiroman concealed himself in the godown
while Bahoran concealed himself in the room in the upper storey where chaff had
been stored. After killing Gayadin, Brindaban, Radha Saran and Dayaram, the
assailants mercilessly dragged the bodies of the victims out of the house of
Gayadin and began their search for Bahoran and other male inmates of the house.
When the dead bodies were thus being dragged, Gori Dulaiya wife of Gayadin
rushed after the assailants and implored them not to take the dead bodies away.
One of the assailants, however, struck her with a stick and she was forced to
retrace her steps. The dead bodies were then dragged towards the east of the
house. On reaching the cattleshed of Harbans, the assailants broke open the
outer door of the house and entered into it. They then injured Harbans and
managed to discover Shiroman Singh who was promptly killed. The five dead
bodies were then taken into the field of Bhagwati. In the field two big piles
of cowdung cakes were prepared. On one of the piles the bodies of Gayadin,
Brindaban, Radha Saran and Davaram were placed and on the other Shiroman
Singh's body was put. Kerosene oil was sprinkled on the bodies and fire was set
That, in brief, is the story of the gruesome
murders which have given rise to the present proceedings.
When the assailants had left the house of
Gayadin dragging the dead bodies with them. Rahoran came out of hi,, hiding
place and rushed to the Police Station Krichh and lodged the First Information
Report at about 11 o'clock.
In this report,.....he gave all the material
details in regard to the commission.of the offence and named the 35 persons as
the assailants. ....In fact, the first committal order passed on the 31st
March,.....1962 in the present proceedings referred to 35 assailants. Later.
five more persons were added to the list of assailants by the committal order
made on the 14th May, 1962. On receiving the first information report, the
police party rushed to the scene of occurrence on cycles and they put off the
burning fire and took out the half burnt 139 bodies of the five murdered persons.
These bodies were identified aid were sent for post mortem examination. The
injured persons Harbans, Ram Prasad, Mansa Ram and Smt.
Gori Dulaiya were sent for medical
examination. Post-mortem examination was then held on the dead bodies and
statements of witnesses were recorded in the course of investigation.
That led to the several charges framed
against 40 persons and ultimately their trial in the Court of the First
Additional Sessions Judge at Jhansi.
The case for the prosecution is sought to be
established by the testimony of 12 eye-witnesses. All the accused persons
denied that they had anything to do with the offences charged. Their main
contention was that a false case had been made against them and it was
attempted to be supported by evidence of witnesses who were hostile to them and
who had no regard for cruth. The trial Judge, in substance.
rejected the defence plea and accepted the
prosecution evidence. except in the case of five accused persons. In appeal,
several contentions were raised on behalf of the appellants, but they were
rejected and in the result, the findings of the trial Court against the
appellants were confirmed. The High Court, however, reversed the conclusion of
the trial Court in respect of 7 accused persons with whose cases we are not
concerned in the present appeals.
The 12 persons who gave direct evidence
against the appellants and their co-accused persons are: Bahoran P.W. 1;
Basanti Lal P.W.2; Rameshwar Dayal P.W.3;
Prabhu Dayal P.W.5; Pancham P.W.6: Swarup Singh P.W.14; Kasturi P.W.15;
Thakur Das P.W.16. Shyamlal P.W.17; Harbans
P.W.18; Dropadi P.W.19; and Kishori Lal P.W.20. The High Court has critically
examined the evidence given by these witnesses and has held that the evidence
of Bahoran and Prabhu Dayal may be left out of account as it appeared to the
High Court that the said evidence suffered from material infirmities.
The evidence given by the remaining 10
witnesses has, however, been accepted by the High Court as substantially true
Jr. dealing with this oral evidence, the High
Court took into account the fact that most of these witnesses belonged to the
faction of Gayadin and must, therefore, be regarded 140 as partisan. It also
considered another feature which characterised the evidence of all the
witnesses and that was that they gave their account of the incident
substantially in similar terms and did not assign particular parts in respect
of overt acts to any of the assailants except Laxmi Prasad accused No. 1. The
approach adopted by the High Court shows that it decided to confirm the
conviction of the accused persons against whom four or more witnesses gave a
consistent account, and it is by the application of this test that 7 accused
persons have been acquitted. As to the sentence, the High Court realised that
10 persons had been ordered to be hanged and that it could not be said about
all of them, except Laxmi Prasad, that they had actually fired a gun and caused
the death of any of the five victims. Even so, the High Court held that since
they all formed members of the unlawful assembly the common object of which was
to exterminate the male members of the family of Gayadin, they were all equally
guilty of murder under s.302,/149, I.P.C.
and it would not, therefore, be unreasonable
to impose the penalty of death on such of the assailants is were shown to have
carried guns in their hands on that occasion. That is how the High Court upheld
the orders of conviction passed against 28 persons who had brought their cases
before it in appeal and confirmed the sentences of death imposed on I 0 of
In these appeals, Mr. Sawhney who has
addressed the principal argument before us on behalf of the appellants, has
urged that the High Court has failed in discharging its duty properly when it
dealt with the appeals brought before it by the appellants and decided to
confirm the sentences of death imposed on 10 of the accused persons. In support
of this argument, Mr. Sawhney has relied upon the decision of this Court in the
case of Jumman & Ors. v. The State of Punjab. (1) In that case, this Court
has emphasised the fact that the mandatory requirement prescribed by s.374 of
the Code of Criminal Procedure shows that in dealing with reference for
confirmation of death sentence imposed by the Sessions Judge, the High Court
has to consider the entire case for itself before deciding whether the sentence
of death (1) A.T.R. I957 S.C. 469141 should be confirmed or not. Section 374
provides that the sentence of death shall not be executed unless it is confirmed
by the High Court. In other words, the sentence of death imposed by the Court
of Sessions is not effective until and unless it is confirmed by the High
Court. It is only when the High Court confirms the sentence of death that it is
capable of execution. That is why this Court emphasised the solemnity of the
Proceedings brought before the High Court under s.374, and it pointed out that
under s.375, the High Court is given the power to admit additional evidence if
it thinks necessary to do so. Proceedings brought before the High Court for
confirmation of a death sentence give a right to the condemned prisoner to be
heard on the merits and to require the High Court to consider the matter for
itself without being influenced by the conclusions recorded by the Court of
Sessions. The conclusions of the High Court on the merits in such proceedings
must be independent,. and so, the High Court inevitably has to go into the
whole of the evidence.
consider all the pros and cons of the case
and satisfy itself that the offence charged under s. 302, I.P.C. is established
beyond reasonable doubt and the sentence of death submitted to it for its
confirmation is fully justified. Mr. Sawhney contends that this essential
requirement of s.374 has not been complied with by the High Court when it dealt
with the appeals brought before it in the present proceedings. He also adds
that since 10 persons have been ordered to be hanged, that itself is a reason
why this Court should examine the evidence for itself and not hold that the appellants
are concluded by concurrent findings of fact recorded by the Court below.
We are not impressed by this argument. It is
perfectly true that, in a murder trial when an accused person stands charged
with the commission of an offence punishable under s.302, he stands the risk of
being subjected to the highest penalty prescribed by the Indian Penal Code; and
naturally judicial approach in dealing with such cases has to be cautious,
circumspect and careful. In dealing with such appeals or reference proceedings
where the question of confirming a death sentence is involved, the High Court
has also 142 to deal with the matter carefully and to examine all relevant and
material circumstances before upholding the conviction and confirming the
sentence of death. All arguments urged by the appellants and all material
infirmities pressed before the High Court on their behalf must be scrupulously
examined and considered before a final decision is reached. The fact that
10...persons had been ordered to be hanged by the trial Judge necessarily
imposed a more serious and onerous responsibility on the High Court in dealing
with the present appeals. We have carefully considered the judgment delivered
by the High Court in these appeals and we are satisfied that the criticism made
by Mr. Sawhney that the High Court did not bestow due care and attention on the
points involved in the case, cannot be regarded as wellfounded, The judgment
shows that the arguments which were urged on behalf of the appellants, have
been carefully examined, the evidence given by the respective witnesses has
been accurately summarised and the infirmities in the said evidence closely
scrutinised. The relevance of the argument of the admitted enmity between the
two factions of the village has been taken into account and the common features
of the evidence tendered by the witnesses have not been overlooked. After
taking into account all the points which were urged before the High Court the
High Court adopted what it thought to be a safe test before acting on direct
evidence. It has held that unless at least four witnesses are shown to have
given a consistent account against any of the appellants. the case against them
cannot be said to have been proved beyond reasonable doubt. Having regard to the
manner in which the High Court has dealt with the appeals brought before it, we
are not prepared to hold that the general criticism made by Mr. Sawhney against
the judgment of the High Court can be accepted.
In this connection, Mr. Sawhney strongly relied
on the fact that the High Court has not considered one important point in
favour of the defence, and that is in to the failure of the prosecution to
tender three material witnesses whose names had been shown in the witness-list
in the calendar sent by the committing Magistrate to the trial Judge. These
witnesses are: Ram Prasad, Mansa Ram and 143 Rani Dulhan. It appears that this
contention was raised by the defence before the Trial Court and had been
rejected by it. The Government counsel appearing for the prosecution had made
an application to the trial Court expressing his inability to examine the three
witnesses for the reason that Ram Prasad and Mansa Ram had been won over by the
defence and Rani Dulhan, the widow of one of the victims, was suffering from
such mental shock that she was unable to depose coherently. After this
application was made and granted, the learned trial Judge did not insist upon
the prosecution examining the three said witnesses. Then followed three other
applications by the defence (Nos. 247B, 248B and 249B) in which it was urged
that the said three witnesses should be examined under s.540, Cr. P.C. The
learned trial Judge rejected these applications, and so, the case concluded
without the said three witnesses giving evidence before the trial Court. In
rejecting the applications made by the defence, the learned Judge has carefully
examined the validity of the defence contention that the evidence given by the
said witnesses before the Committing Magistrate showed that they were material
witnesses and the plea raised by them that the absence of their evidence would
cause prejudice to the defence, and has held that the evidence which the said
three witnesses may give was not essential for a just decision of the case and
that it was unreasonable to suggest that the prosecution had an oblique moive
in supressing their evidence. This part of the judgment clearly shows that all
relevant aspects of the matter were examined by the trial Judge before he
refused to exercise his powers under s.540, Cr. P.C. It is obvious that this
contention was not urged before the High Court, and so, we find no discussion
of the point in the judgment of the High Court.
We are not prepared to accept Mr. Sawhney's
argument that even if this point was not raised by the appellants before the
High Court, they are entitled to ask us to consider that point having regard to
the fact that 10 persons have been ordered to be hanged. It may be conceded
that if a point of fact which plainly arises on the record, or a point of law
which is relevant and material and can be argued with144 out any further
evidence being taken, was urged before the trial Court and after it was
rejected by it was not repeated before the High Court, it may, in a proper
case, be permissible to the appellants to ask this Court to consider that point
in an appeal under Art. 136 of the Constitution;
afterall in criminal proceedings of this
character where sentences of death are imposed on the appellants, it may not be
appropriate to refuse to consider relevant and material pleas of fact and law
only on the ground that they were not urged before the High Court. If it is
shown that the pleas were actually urged before the High Court and had not been
considered by it, then, of course, the party is entitled as a matter of right
to obtain a decision on those pleas from this Court. But even otherwise no hard
and fast rule can be laid down prohibiting such pleas being raised in appeals
under Art. 136.
In the present case, however, we are
satisfied that there is no substance in the contention which Mr. Sawhney seeks
to raise before us. It is not unknown that where serious offences like the
present are committed and a large number of accused persons are tried, attempts
are made either to terrorise or win over prosecution witnesses, and if the
prosecutor honestly and bonafide believes that some of his witnesses have been
won over, it would be unreasonable to insist that he must tender such witnesses
before the Court.
It is undoubtedly the duty of the prosecution
to lay before the Court all material evidence available to it which is
necessary for unfolding its case; but it would be unsound to lay down is a
general rule that every witness must be examined even though his evidence may
not be very material or even if it is known that he has been won over or
In such a case, it is always open to the
defence to examine such witnesses is their witnesses and the Court can also
call such witnesses in the box in the interest of justice under s.540, Cr. P.C.
As we have already seen, the defence did not examine these witnesses and the
Court, after due deliberation, refused to exercise its power under s.540, Cr. P.C.
That is one aspect of the matter which we have to take into account.
145 The other aspect of the matter is that
the trial Court has found that the evidence which these witnesses would have
given was not essential for a just decision of the case.
What these witnesses might have said in the
Sessions Court was judged by the trial Court in the light of their previous
statements already recorded, and that is a finding which is purely one of fact.
If this finding was not challenged by the appellants before the High Court, we
do not see how they can claim to argue before us now that the said finding is
erroneous. Besides, so far as Rani Dulhan is concerned, it seems to us utterly
unreasonable to insist that before permitting the prosecutor not to examine
her, and evidence should have been led to show that she was suffering from such
mental shock that she was unable to give a coherent account of the tragic
events that happened on that fateful morning.
One has merely to recall the fact that five
male members of her family were butchered to death by the assailants to realise
that the prosecutor's statement that she was mentally unbalanced must be true.
Then, as to Ram Prasad and Mansa Ram having been won over by the defence, that
again is a matter on which the trial Court appears to have been satisfied;
otherwise it would have readily acceded to the request of the defence to
exercise its powers under s. 540. Cr. P.C. We are inclined to think that it is
because this part of the defence contention was felt to be inarguable that the
Advocate for the appellants did not raise this point before the Court. Therefore,
we are not prepared to allow Mr. Sawhney to take us through the evidence in the
case on the ground that one important contention raised by the defence has not
been examined by the High Court.
Mr. Sawhney has then argued that where
witnesses giving evidence in a murder trial like the present are shown to
belong to the faction of victims, their evidence should not be accepted,
because they are prone to involve falsely members of the rival faction out of
enmity and partisan feeling. There is no doubt that when a criminal Court has
to appreciate evidence given by witnesses who are partisan or interested, it
has to be very careful in weighing such evidence. 51 S.C.-IO 146 Whether or not
there are discrepancies in the evidence;
whether or not the evidence strikes the Court
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
Often enough, where factions prevail in
villages and murders are committed as a result of enmity between such factions,
criminal Courts have to deal with evidence of a partisan type. The mechanical
rejection of such evidence on the sole ground that it is partisan would
invariably lead to failure of justice. No hard and fast rule can be laid down
as to how much evidence should be appreciated. Judicial approach has to be
cautious in dealing with such evidence; but the plea that such evidence should
be rejected because it is partisan cannot be accepted as correct.
Then it is urged that the evidence given by
the witnesses conforms to the same uniform pattern and since no specific part
is assigned to all the assailants, that evidence should not have been accepted.
This criticism again is not well founded. Where a crowd of assailants who are
members of an unlawful assembly proceeds to commit an offence of murder in
pursuance of the common object of the unlawful assembly, it is often not
possible for witnesses to describe accurately the part played by each one of
the assailants. Besides, if a large crowd of persons armed with weapons
assaults the intended victims, it may not be necessary that all of them have to
take part in the actual assault. In the present case, for instance, several
weapons were carried by different members of the unlawful assembly, but it
appears that the guns were used and that was enough to kill 5 persons. In such
a case, it would be unreasonable to contend that because the other weapons
carried by the members of the unlawful assembly were not used, the story in
regard to the said weapons itself should be rejected. Appreciation of evidence
in such a complex case is no doubt a difficult task: but criminal courts have
to do their best in dealing with such cases and it is their duty to sift the
evidence carefully and decide which part of it is true and which is not. In the
147 present case, the High Court has in fact refused to act upon the, evidence
of Bahoran and Prabhu Dayal, because it appeared to the High Court that the
evidence of these two witnesses suffered from serious infirmities.
Mr. Sawhney also urged that the test applied
by the High Court in convicting the appellants is mechanical. He argues that
under the Indian Evidence Act, trustworthy evidence given by a single witness
would be enough to convict an accused person, whereas evidence given by half a
dozen witnesses which is not trustworthy would not be enough to sustain the
conviction. That, no doubt is true; but where a criminal court has to deal with
evidence pertaining to the commission of an offence involving a large number of
offenders and a large number of victims, it is usual to adopt the test that the
conviction could be sustained only if it is supported by two or three or more
witnesses who give a consistent account of the incident. In a sense, the test
may be described as mechanical; but it is difficult to see how it can be
treated as irrational or unreasonable.
Therefore, we do not think that any grievance
can be made by the appellants against the adoption of this test. If at all the
prosecution may be entitled to say that the seven accused persons were
acquitted because their cases did not satisfy the mechanical test of four
witnesses, and if the said test had not been applied, they might as well have
been convicted. It is, no doubt, the quality of the evidence that matters and
not the number of witnesses who give such evidence. But, sometimes it is useful
to adopt a test like the one which the High Court has adopted in dealing with
the present case.
Mr. Sawhney then attempted to argue that the
High Court failed to give effect to the principles enunciated by this Court in
the case of Baladin v. State of Uttar Pradesh(').
In that case, it was observed by Sinha, J.,
who spoke for the Court, that it is well-settled that mere presence in an
assembly does not make a person, who is present, a number of an unlawful
assembly unless it is shown that he had done something or omitted to do
something which would make him a member of an unlawful assembly, or unless the
case falls under s.142, I.P.C. The argument is (1) A.I.R. 1956 S.C. 181 148
that evidence adduced by the prosecution in the present case does not assign
any specific part to most of the accused persons in relation to any overt act,
and so, the High Court was in error in holding that the appellants were members
of an unlawful assembly. The observation of which Mr. Sawhney relies, prima
facie, does seem to support his contention;
but, with respect, we ought to add that the
said observation cannot be read as laying down a general proposition of law
that unless an overt act is proved against a person who is alleged to be a
member of an unlawful assembly, it cannot be said that he is a member of such
an unlawful assembly. In appreciating the effect of the relevant observation on
which Mr. Sawhney has built his argument, we must bear in mind the facts which
were found in that case. It appears that in the case of Baladin(1), the members
of the family of the appellants and other residents of the village had
assembled together; some of them shared the common object of the unlawful
assembly, while others were merely passive witnesses. Dealing with such an assembly,
this Court observed that the presence of a person in an assembly of that kind
would not necessarily show that he was a member of an unlawful assembly. What
has to be proved against a person who is alleged to be a member of an unlawful
assembly is that he was one of the persons constituting the assembly ,and he
entertained along with the other members of the assembly the common object as
defined by s.141, I.P.C. Section 142 provides that whoever, being aware of
facts which render any assembly an unlawful assembly, intentionally joins that
assembly, or continues in it, is said to be a member of an unlawful assembly.
In other words, an assembly of five or more persons actuated by, and
entertaining one or more of the common objects specified by the five clauses of
s. 141, is an unlawful assembly. The crucial question to determine in such a
case is whether the assembly consisted of five or more persons and whether the
said persons entertained one or more of the common objects as specified by
s......141. While determining this question, it becomes relevant....to consider
whether the assembly consisted of some persons.....who were merely passive
witnesses and had (1) A.I.R. 1956 S.C. 181 I49 joined the assembly as a matter
of idle curiosity without intending to entertain the common object of the
It is in that context that the observations
made by this Court in the case of Baladin(1) assume significance;
otherwise, in law, it would not be correct to
say that before a person is held to be a member of an unlawful assembly, it
must be shown that he had committed some illegal overt act or had been guilty
of some illegal omission in pursuance of the common object of the assembly.
In fact, s.149 makes it clear that if an
offence is committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person
who, at the time of the committing of that offence. is a member of the same
assembly, is guilty of that offence; and that emphatically brings out the
principle that the punishment prescribed by s.149 is in a sense vicarious and
does not always proceed on the basis that the offence has been actually
committed by every member of the unlawful assembly. Therefore, we are satisfied
that the observations made in the case of Baladin(l) must be read in the
context of the special facts of that case and cannot be treated as laying down
an unqualified proposition of law such as Mr. Sawhney suggests.
In this case, the High Court has carefully
examined the evidence and has made a finding that the whole group of persons
who constituted the assembly were members of the faction of Laxmi Prasad and
they assembled together, armed with several weapons, because they entertained a
common object in pursuance of which the five murders were committed on that
day. Therefore, there is no substance in the argument that the conclusion of
the High Court that the appellants are guilty of the offences charged is not
supported by the principles of law enunciated by this Court in the case of
It is thus clear that the general grounds of
attack urged before us by Mr. Sawhney in challenging the validity of the
conclusions recorded by the High Court fail, and so, there (1) A.I.R. I956 S.C.
181 150 would be no occasion or justification for this Court to consider the
evidence for itself.
That leaves one question still to be
considered and that has relation to the sentence of death imposed on 10
Mr. Sawhney argues that in confirming the
sentences of death imposed by the trial Court on 10 accused persons in this
case, the High Court has adopted a mechanical rule. The High Court has held
that the 10 persons who carried firearms should be ordered to be hanged,
whereas others who have also been convicted under s. 302/149, should be
sentenced to imprisonment for life. It is true that except for Laxmi Prasad,
the charge under s. 302/149 rests against the other accused persons on the ground
that five murders have been committed by some members of the unlawfui assembly
of which they were members, and the argument is that unless it is shown that a
particular accused person has himself committed the murder of one or the other
of the victims, the sentence of death should not be imposed on him. In other
words, the contention is that if a person is found guilty of murder under s.
302/149 and it is not shown that he himself committed the murder in question,
he is not liable to be sentenced to death. In support of this argument, Mr.
Sawhney has relied on certain observations
made by Bose J.
who spoke for the Court in Dalip Singh v.
State of Punjab('). In that case, what this Court observed was that the power
to...enhance a sentence from transportation to death should very...rarely be
exercised and only for the strongest reasons; and...it was added that it is not
enough for the appellate court to..say or think that if left to itself it would
have awarded the....greater penalty because the discretion does ,not belong to
the..appellate court but to the trial Judge, and the only ground on which the
appellate court can interfere is that the discretion has been improperly
exercised. These observations have no relevance in the present case, because we
are not dealing With a case where the High Court has enhanced the sentence
imposed by the trial Judge at all. In fact, both the trial Court and the High
Court are agreed that the sentences of death imposed on 10 persons are justified
by the circumstances of the case and by the requirements (1) (1954] S.C.R. 145
151 of justice. As a mere proposition of law, it should be difficult to accept
the argument that the sentence of death can be legitimately imposed only where
an accused person is found to have committed the murder himself. Whether or not
sentences of death should be imposed on persons who are found to be guilty not
because they themselves committed the murder, but because they were members of
an unlawful assembly and the offence of murder was committed by one or more of
the members of such an assembly in pursuance of the common object of that
assembly, is a matter which had to be decided on the facts and circumstances of
each case. In the present case, it is clear that the whole group of persons belonged
to Laxmi Prasad's faction, joined together armed with deadly weapons and they
were inspired by the common object of exterminating the male members in the
family of Gayadin, 10 of these persons were armed with fire-arms and the others
with several other deadly weapons, and evidence shows that five murders by
shooting were committed by the members of this unlawful assesmbly. The conduct
of the members of the unlawful assembly both before and after the commission of
the offence has been considered by the courts below and it has been held that
in order to suppress such fantastic criminal conduct on the part of villagers
it is necessary to impose the sentences of death on 10 members of the unlawful
assembly who were armed with firearms. It cannot be said that discretion in the
matter has been improperly exercised either by the trial Court or by the High
Court. Therefore we see no reason to accept the argument urged by Mr. Sawhney
that the test adopted by the High Court in dealing with the question of sentence
is mechanical and unreasonable.
There are, however, three cases in which we
think we ought to interfere. These are the, case of accused No. 9 Ram Saran who
is aged 18; accused No. II Asha Ram who is aged 23 and accused No. 16 Deo
prasad who is aged 24, Ram Saran and Asha Ram are the sons of Bhagwati who is
accused No. 2. Both of them have been sentenced to death. Similarly, Deo prasad
has also been sentenced to death. Having regard to the circumstances under
which the unlawful assembly came to be formed, we are satisfied that these 152
young men must have joined the unlawful assembly under pressure and influence
of the elders of their respective families. The list of accused persons shows
that the unlawful assembly was constituted by members of different families and
having regard to the manner in which these factions ordinarily conduct
themselves in villages, it would not be unreasonable to hold that these three
young men must have been compelled to join the unlawful assembly that morning
by their elders, and so, we think that the ends of justice would be met if the
sentences of death imposed on them are modified into sentences of life
Accordingly, we confirm the orders of
conviction and sentence passed against all the appellants except accused Nos.
9, 11 and 16 in whose cases the sentences are altered to those of imprisonment
for life. In the result, the appeals are dismissed, subject to the said