Chaman & Anr Vs. State of Bihar  INSC
144 (4 March 1998)
Nanavati, S.P. Kurdukar S.P. Kurdukar. J.
Appeal nos. 262-263/98 @ slp (crl.) Nos. 3729-30/97
two condemned prisoners/appellants, namely, Shiv Prakash Pandey (A-1) and Shobhit
Chamar (A-2) had initially sent a petition through jail to this Court which was
registered as Special Leave Petition (Crl.) No. 3576 of 1997 where in leave was
granted and a Criminal Appeal No. 1084 of 1997 came to be registered. In the
meantime, the condemned prisoners filed Special Leave Petition (Crl.) Nos.
3729-30 of 1997 through their Advocate against the very same judgment and order
of conviction passed by the High Court of Patna, hence Leave is granted herein
as well. Since both these Criminal Appeals are filed by the condemned prisoners
challenging the legality and correctness of the judgment of the High Court
wherein the death sentence of both the appellants for committing six murders is
confirmed, they are being disposed of by this common judgment.
prosecution story unfolded at the trial is as under:- Jagarnath Pandey (since
deceased) was the resident if village Tirojpur under police station Durgawati,
district Rohtas. He owned a house and an agricultural land having a bore well
and a chamber room. The occurrence in the present case took place in his
residential house during the night intervening between January 1 and 2, 1989 at
about 1.00 a.m.
Pandey is the son of Jagarnath Pandey. On the date of incident, Jagarnath Pandey
and his son Ram Iqbal Pandey (both deceased) went to the chamber (room) for
sleeping during that night. Besides Haridwar Pandey and Ram Iqbal Pandey, the
family of Jagarnath Pandey was consisted of Taranath Pandey, a cousin (since
deceased), Mahendra Pandey, nephew (since deceased), Anil Pandey 10 years old
and Sunil Pandey, 8 years old, grand sons (since deceased) and other female
members. They were in the house. After evening meals, all these persons went to
sleep in their respective rooms.
about mid night, Bhajurama Devi (PW 2) who was sleeping in her room heard the
knock on the door and a call from Ram Iqbal Pandey requesting her to open the
door as he the door in good faith but to her surprise, she saw 15 to 20
miscreants who forcibly entered into the house. All these miscreants then
started knock in the door of a room where Lalmuni Devi (PW 6), informant, was
sleeping. By then she realised that some dacoits had entered into the house.
They continued to knock the door and also started abusing the intimated. When
she opened the door, 4 to 5 dacoits entered into her room. Lalmuni Devi (PW 6)
apprehending danger came out of the room and saw 15 to 20 dacoits armed with
rifles had entered into her house and thereafter started collecting the
valuables from rooms and putting them into bundles. She then spotted her
father-in-law Jagarnath Pandey and Ram Iqbal Pandey in the courtyard with their
hands tied from behind. Lalmuni Devi (PW 6) immediately took her children and
other family members inside another room called Dumuha.
of the dacoits then started asking the inmates of the house of disclose where
the gun and the ornaments were kept otherwise their children would be killed. Lalmuni
Devi (PW 6) told theat she did not know about the gun and she requested the
dacoits not to cause harm to any of the family members. She identified Shiv Prakash
Pandey (A-1), Shobhit Chamar (A-2) and Ram Dular who was said to have been
killed in encounter during the pendency of trial.
is alleged by the prosecution that A-2 then started snatching the two children,
namely, Anil Pandey and Sunil Pandey from Lalmuni Devi (PW 6) and when she
resisted, A-2 assaulted her with baton of the rifle and snatched the children
forcibly from her and brought them into the courtyard. Shiv Prakash Pandey
(A-1) and Shobhit Chamar (A- 2) then fired from their guns killing Jagarnath Pandey
and Ram Iqbal Pandey who collapsed due to fire arm injuries on the ground and
died on the spot. A-2 along with two or three dacoits then went outside the
house and after some time, came back along with Taranath Pandey and Mahendra Pandey
who were also gun down in the courtyard. The two minor children were terribly
scared and when they started weeping, some of the dacoits sad that they be spared.
When they were let off, they went to Lalmuni Devi (PW 6) and sat on her lap.
One of the dacoits then said that these children should to be spared because
when they would grow, they might take the revenge and, therefore, they should
also be finished. A-2 then forcibly brought the children from Lalmuni Devi (PW
6) in the courtyard and thereafter miscreants fired at them.
the children succumbed to the fire arm injuries and died on the spot. A-2 was
than enquiring about Haridwar husband of Lalmuni Devi (PW 6) and asked her to
call him so that he would also be killed. A-2 then stated that all male members
of the family of Haridwar should be finished so that he would be satisfied of
taking revenge of murders of his brother and a nephew. During this occurrence,
according to the prosecution, the dacoits also assaulted Bindu Devi (PW 4) wife
of Ram Iqbal Pandey. After committing the six murders and assaulting the Family
members of Jagarnath Pandey, the dacoits left the house with valuables worth
Rs.12.000/- raising slogans `Jai Durga Maa'
police station is situated at a distance of 10 kilometers from the village Tirojpur
. Lalmuni Devi (PW 6) went to the police station at about 6.30 a.m. on 2nd January, 1989
and loaded the FIR (Ex.5). The FIR sets out all the details naming Shiv Prakash
Pandey (A-1), Shobhit Chamar (A-2), Ram Dular (A-3) and other unidentified
dacoits. It is then stated therein that Shobhit Chamar (A-2) had nursed a
grudge against her family as he suspected that Haridwar was responsible for
causing the murders of his brother and nephew.
After registering the Crime, Arun Shukla (PW 11) who was uncharge of Durgawati
police station left for the village and after reaching there, commenced the
investigation. After carrying out the inquest panchanama on the six dead
bodies, he sent them to Bhabhua Hospital for post mortem examination. The investigating officer
thereafter carried out the necessary investigation and also recorded the
statements of various witnesses. After completing the investigation, the
appellants along with two other acquitted accused, namely, Khobhru Chamar and Narad
Chamar were sent up for trial for offences punishable under Sections 302/149. 380
and 460 of the Indian Penal Code and 27 of the Arms Act.
appellants denied the allegations levelled against them and pleaded that they
were innocent and did not know anything about the incident. They also pleaded
that they have been falsely implicated in the present crime due to animosity.
They also brought on record the copy of the complaint lodged by Gohni Kaur, the
wife of elder brother of A-2 filed against Haridwar, Ram Iqbal Pandey and
others in connection with the murder of her husband. Certain other documents
were also brought on record to show the enmity between the family of Haridwar
and the accused.
the trial, the prosecution examined as many s 13 witnesses, of whom, Bhajurama Devi
(PW 2), Bindu Devi (PW 4), Lalmuni Devi (PW 6) and Lachhi Devi (PW 7) were the
eye witnesses. Sumitra Devi (PW 1) was examined to prove that decoits had
forcibly taken away Mahendra Pandey and Taranath Pandey from her house and soon
thereafter she found that they were killed. She disclosed the name of A-1, A-2
AND Ram Dular Chamar who had whisked away them. Dr. Jai Shanker Mishra (PW 9)
was examined to prove the post mortem examination reports and cause of death of
six deceased persons.
trial court after careful scrutiny of oral and documentary evidence on record
vide its judgment and order dated February 16, 1996 held the appellants guilty
f offences punishable under Sections 302, 302/149, 380 and 460 of the Indian
Penal Code as also under Section 27 of the Arms Act. The trial court, however,
found that the prosecution had failed to establish beyond reasonable doubt any of
the charges against Khobhru Chamar (A-3) and Narad Chamar (A-4) and
consequently they were acquitted. After herein the appellants and their counsel
on the question of sentence, the trial court awarded death sentence to both the
appellants and made a Reference to the High Court under Section 366 of the Code
of Criminal Procedure.
This Reference came to be numbered as Death Reference No. 1 of 1996 which was
heard along with Criminal Appeal Nos. 118 and 136 of 1996 filed by the State of
Bihar and the appellants respectively. The
Counsel for the parties and the appellants on the question of sentence.
Relevant portion of the judgment reads thus:- "Since both the accused have
faced the trial from being bar, hence both are remanded to judicial custody to
be produced on 23rd February, 1996 when the case will be put up for hearing on
the point of sentence." Accordingly, the appellants were produced in the
court on the said adjourned date. The trial court heard the learned Counsel for
the parties and thereafter pronounced the order of sentence. From the above
facts, it is thus clear that the appellants were given sufficient opportunity
of being heard on the question of sentence. No grievance whatsoever in this
behalf was made either before the trial court or before the High Court. The
arguments as regards non compliance of Section 235(2) Cr.P.C. was first time
sought to be raised before us. Learned counsel for the appellants in support of
his contention drew our attention to the 1976(4) S.C.C. 190. While dealing with
the true scope of Section 235 (2) Cr.P.C., this Court observed:- "This
provision is clear and explicit and does not admit of any doubt. It requires
that in every trial before a court of sessions, there must first be a decision
as to the guilt of the accused. The court must, in the first instance, deliver
a judgment convicting or acquitting the accused. If the accused is acquitted,
no further question arises. But if he is convicted, then the court has to
"hear then accused on the question of sentence, and then pass sentence on
him according to law". When a judgment is rendered convicting the accused,
he is, at that stage, to be given an opportunity to be heard in regard to the
sentence and it is only after hearing him that the court can proceed to pass
the sentence." The court emphasised that Section 235(2) Cr.P.C. is
mandatory and it must be complied with in true spirit. Non compliance thereof
would not be a mere irregularity which could be cured under Section 465 Cr.P.C.
It was a case where the accused was charged for double murder and was
represented by a lawyer throughout the trial. On the day judgment was
pronounced, the accused was not so represented.
Sessions Judge pronounced the judgment convicting him under Section 302 IPC and
sentenced him to death without giving any opportunity to him to be heard on the
question of sentence. It is on these facts, the court fond that non compliance
of Section 235(2) Cr.P.C. would make the death sentence unsustainable. The same
view has been reiterated by this Court in Allauddin Mian and others Sharif Mian
is true that in paragraph 10, this Court observed:- "Since the provision
is intended to give the accused an opportunity to place before the court all
the relevant material having a bearing on the question of sentence there can be
no doubt that the provision is salutary and must be strictly followed. It is
clearly mandatory and should not be treated as a mere formality." What had
happened in this case was that the trial court recorded the finding of quilt on
March 31. 1987 and on the very same day, they were asked if they had anything
to say on the question of sentence and immediately thereafter the order of
death sentence was pronounced. It appears that grievance as regards non
compliance of Section 235(2) Cr.P.C. was made in the courts below and it is in
these circumstances, the court held that the accused were not given sufficient
opportunity to be heard on the question of sentence and, therefore, there was
non compliance of Section 235(2) Cr.P.C. was made in the Courts below and it is
in these circumstances, the court held that the accused were not given
sufficient opportunity to be heard on the question of sentence and, therefore,
there was non compliance of Section 235(2) Cr.P.C. The facts of the case before
us are entirely different and in fact after pronouncing the judgment of
conviction on February
16, 1996, both the
appellants were remanded to judicial custody till 23rd February, 1996 and were given full opportunity of being heard on
the question of sentence. The Advocate for the appellants was also heard fully
on the question of sentence.
in these circumstances, we find that the ratio of the above referred two
decisions of this Courts will have no application. The argument relating to
prejudice thus would not survive.
Learned Counsel for the appellants then urged that the procedure followed in
recording the statements of the appellants under Section 313 Cr.P.C. was
totally irregular inasmuch as the material evidence and the circumstances which
were relied upon by the prosecution were not put to them and resultantly they
were denied an opportunity to explain the same. It was, therefore, contended
that non compliance of Section 313 Cr. P.C. has vitiated the trial and the
appellants could not be convicted for any offence.
The statement of Shobhit Chamar (A-2) recorded under Section 313 Cr.P.C of
which a free translation in English was furnished by his Advocate reads thus:-
Q: Have you heard the evidence of witness. It is the allegation of witnesses
that on the night of 1/2 January, 1989 Shiv Prakash Pandey, Shobhit Chamar, Khobhare
Chamar, Ram Pratap Chamar and Narad Chamar and other associated armed with
rifle and gun looted ornaments, clothes, cash from the house of the Informant Lalmuni
Devi, situated in village Tirozpur, P.S. Durgawati, Distt. Rohtas, at present
in district Bhabhua. Have you got to say anything? A: No Sir.
is also alleged by the witnesses that at that time, place and date accused Ram Dular,
Shobhit and Shiv Prakash killed Jagarnath Pandey, Ram Iqbal Pandey, Mahendra Pandey,
Taranath Pandey, besides two children, namely, Anil Pandey and Sunil Pandey who
were sons of Haridwar Pandey (all of them) by firing shots. Have you got
anything to say? A: No Sir.
is also alleged by the witnesses that at the time of occurrence, electric bulb
was illuminating in the court yard of the house of informant, in the light of
which (they) recognised you all. Have you got anything to say? A: No Sir.
you want to say something in your defence? A: On the day of occurrence, I was
in the village (Illegible). Because Haridwar Pandey had killed three persons
like Ram Kewal etc.. Due to fear of this, I had left the village.
statement of Shiv Prakash Pandey (A-1) is almost similar except the last question
which he had given answer "No Sir".
Relying upon the above statements of the appellants, it was contended by Mr.
R.K. Jain, Learned Senior Advocate that the court had failed to formulate the
question properly inasmuch as the material circumstances appearing in the
evidence of the prosecution were not put to the appellants.
Jain drew our attention to the decision of this Court in observations at page
733. It was a case where statement of the accused was recorded under Section 342
questions put to the accused were reproduced in the judgment which according to
this Court were not sufficient compliance of Section 342 Cr.P.C. It is
interesting to note that the Sessions Court repeated the same questions and
answers put to the accused at the committal stage by the Magistrate. it was,
therefore, a case where the Sessions Court did not record the statements of the
accused under Section 342 of the Cr. P.C. after recording the evidence of the
prosecution at trial and, therefore, in these circumstances, the court held
that there was breach of provisions of Section 342 Cr.P.C. and consequently the
conviction and sentence inflicted upon the accused was set aside and the case
was sent back to the trial court for de nova trial. In the case before us, the
prosecution case mainly rested upon the ocular evidence of eye witnesses. On
conclusion of the prosecution evident. the rial court did put the necessary
questions relating to the evidence of eye witnesses to both the appellants and
thereafter recorded the answers given by them. It is, therefore, clear that the
(supra) is clearly distinguishable.
AIR 1962 SC 1239, a similar question arose for consideration before this Court
under the old Code. 1898 and this court observed as under:- "The
examination by the Sessions Judge of the appellants was perfunctory, but as
observed in Ajmer Singh's case, 1953 SCR 418, (AIR 1953 Sc 76) every error or
omission in complying with S. 342 does not vitiate the trial. "Errors of
this type fall within the category of curable irregularities and the question
whether the trial has been vitiated depends in each case upon the degree of
error and upon whether prejudice has been or is likely to have been caused to
the accused." The Court then observed:- "Failure to comply with the
provisions of the S.342 is an irregularity; and unless injustice is shown to
have resulted therefrom a mere irregularity is by itself not sufficient to
justify an order of retrial. The appellate court must always consider whether
by reason of failure to comply with a procedural provisions, which does not
affect the jurisdiction of the court, the accused have been materially
prejudiced." 1992(3) SCC 700, this Court had an occasion to consider a
similar question. It was a case which mainly depended upon the identification
of the accused, various other circumstances forming a chain of circumstantial
evidence and the confessional statement. It is in the context, this Court ruled
that the court was duty bound to solicit accused's explanation in respect of
every incriminating material used by the prosecution against him irrespective
of how weak or scanty the prosecution evidence was in this respect. This appeal
was filed by the State of Maharashtra challenging the order of acquittal passed
by the trial court against some of the accused and on examining the records,
the Court found that there was non compliance of Section 313 Cr.P.C. and,
therefore, the order of acquittal did not call for any interference.
726, this Court held that the circumstances not out to the accused while
recording his statement under Section 313 Cr.P.C., cannot be used against him.
This was a case where prosecution solely relied upon the circumstantial
Court, therefore, came to the conclusion that the circumstances which were not
put to the accused cannot be used by the prosecution for holding him guilty in
a case of circumstantial evidence. This decision again does not help the
appellants on the peculiar facts of this case.
Mr. B.B.Singh, learned counsel for the respondent drew our attention to the
judgment of this Court in Suresh other appeals. This Court while dealing with
the scope of Section 313 Cr.P.C. held as under:- "The provisions in
Section 313, therefore, make it obligatory on the court to question the accused
on the evidence and circumstance appearing against him so as to apprise him the
exact case which he is required to meet. But it would not be enough for the
accused to show that he has not been questioned or examined on a particular
circumstance but he must also show that such non-examination has actually and
metrically prejudiced him and has resulted in failure of justice. In other
words in the event of any inadvertent omission on the part of the court to
question the accused on any incriminating circumstance appearing against him
the same cannot ipso facto vitiate the trial unless it is shown that some
prejudice was caused to him." In the final analysis, the Court observed:
the facts and circumstances discussed above it cannot be said that any
prejudice was caused to the appellant. The contention of the learned counsel
for the appellants in this behalf therefore has no merit." similar
question arose before this Court as regards the scope of Section 342 of Code of
Criminal Procedure, 1898. In this reported decision, only three questions were
put to the accused on the conclusion of the prosecution evidence, namely,
his defence was s to the evidence adduced against him.
he had inflicted injuries on Kumad Patra and
he would adduce any evidence.
considering the challenge to the conviction on behalf of the accused on the
ground that relevant prosecution evidence and other materials relied upon by
the prosecution were not put to him under Section 342 Cr.P.C. 1898 the Court
observed:- "To sustain such an argument as his been put forward, it is not
sufficient for the accused merely to show that he has not been fully examined
as required by Section 342 of the Criminal Procedure Code, but he must also
show that such examination has materially prejudiced him."
have perused all these reported decisions relied upon by the Learned Advocates
for the parties and we see no hesitation in concluding that the challenge to
the conviction based on non compliance of Section 313 Cr.P.C. first time in
this appeal cannot be entertained unless the appellants demonstrate that the
prejudice has been caused to them. In the present case as indicated earlier,
the prosecution strongly relied upon the ocular evidence of the eye witnesses
and relevant questions with reference to this evidence were put to the
appellants. If the evidence of these witnesses is found acceptable, the
conviction can be sustained unless it is shown by the appellants that a
prejudice has been caused to them. No such prejudice was demonstrated before us
and, therefore, we are unable to accept the contention raised on behalf of the
Advertising to the merits of the case, at the outset.
needs to be stated that there was no challenge to the fact that six persons
were done to death during the incident in question. The medical evidence in the
form of post mortem examination reports which was duly proved by the medical
expert Dr. Jai Shanker Misra (PW 9) unmistakably indicated that deceased
persons had sustained several gun shot injuries which caused their
instantaneous deaths. The courts below in our opinion have rightly held that
six persons died homicidal deaths during the incident in question. We
accordantly uphold the finding recorded by the courts below in this behalf.
order to prove the complicity of the appellants, the prosecution principally
relied upon the evidence of four eye witness, namely, Bhajurama Devi (PW 2), Bindu
Devi (PW 4), Lalmuni Devi (PW 6) and Lachhi Devi (PW 7). All these witnesses
were staying in the house of Jagarnath Pandey and they had witnessed the entire
incident in question. Lalmuni Devi (PW 6) lodged the First Information Report
on 2nd January. 1989 at about 6.30 a.m. naming the appellants and Ram Dular Chamar
in addition to some unidentified dacoits.
these eye witnesses identified the appellants. According to them, the source of
light was two electric bulbs which were on/burning in the court yard. All these
eye witnesses are illiterate ladies who have lost their male family members. Lalmuni
Devi (PW 6) in her evidence has given the photographic details as to how the
incident took place. She stated that the appellants along with other
unidentified dacoits entered into the courtyard and gunned down six persons two
on each occasion. They died on the spot due to fire arm injuries. She further
stated that she identified three assailants of whom two are appellants in the
light of electric bulbs which were on/burning in the courtyard. The First Information
Report lodged by her fully corroborates her evidence.
Devi (PW 2) who is the mother of deceased Ram Iqbal Pandey, has stated that
when she was sleeping in her room, during the night, her son Ram Iqbal Pandey
(deceased) knocked the door and asked her to open it as he was feeling thirsty.
When she opened the door. 20 to 25 dacoits entered into the house along with
her son Ram Iqbal Pandey and Jagarnath Pandey (both since deceased) with their
hands tied from behind. Shobhit Chamar (A-2) and his associated inquired about Haridwar
Pandey and the gun and on her reply in the negative, they started looting the
valuables and assaulted Bindu Devi (PW 4). Suddenly, A-2 pumped out bullets
from him gun killing Ram Iqbal Pandey and Jagarnath Pandey on the spot. Both
the appellants then went out of the house and came back along with Taranath Pandey
and Mahendra Pandey who were made to stand in the courtyard and thereafter
shots were fired killing both of them on the spot. The female members in the
house were terribly scarred and they were praying not to kill any of the family
aged about 10 years and Sunil Pandey aged about 8 years both sons of Lalmuni Devi
(PW 6) were watched from her. Some of the miscreants then told their associated
not to kill the children whereupon A-1 asked his associated not to leave the
children because when they would grow, they will take the revenge. In the
meantime, the children who had gone to the mother were dragged back by the
appellants and thereafter Shobhit Chamar (A-2) fired at them as a result
thereof, both the children fell down and died. The appellants and their
associated then assaulted some of the inmates who had sustained the injuries.
All the six dead bodies were found lying in the court yard. This witness war
searchingly cross-examined on behalf of the appellants but no material could be
brought on record to disbelieve her evidence. The evidence of this witness is
absolutely free from any infirmity and thus clearly establishes that the
appellants and other associates entered into the mouse during the dead hours of
Ist and 2nd January, 1981, they were armed with fire arms having a common
object the eliminate male members of the family of Haridwar and in pursuance
thereof they killed six persons. The evidence of Bindu Devi (PW 4) and Lachhi Devi
(PW 7) is almost similar and in their avoidance they asserted that they
identified the appellants in the light that was burning on in the courtyard.
Their evidence in all material particulars support the evidence of Bhajurama Devi
(PW 2) and Lalmuni Devi (PW 6).
The court below have very carefully gone through the evidence of these four eye
witnesses. We have also undertaken the same exercise and in our opinion the
courts below have committed no error whatsoever in coming to the conclusion
that during the night in question. The appellants along with other cacoits
entered into the because of Haridwar Pandey with deadly weapons and formed an
unlawful assembly sharing a common object to eliminate male members of family
of Haridwar. In prosecution of this common object, the appellants killed six
persons two in each lot by using the fire arms. The trial court for want of
proper identification gave benefit of doubt no Khoohru Chamar (A-3) and Narad Chamar
(A-4) and acquitted them of all the charges. As far as Ram Dular is concerned,
it was stated that he was killed in police encounter during the pendency of
trial and hence trial abated against him. Other miscreants who entered into the
house during the said night could not be identified and as a result thereof,
they could not be arraigned as accused.
The above findings recorded by the trial court and confirmed by the High Court
do not suffer from any infirmity. On our careful consecration of evidence on
record. We share and confirm the same view. The fact that both the appellants
along with other dacoits came armed with deadly weapons during the dead hours
would unmistakably snow that they had come to the house of Haridwar Pandey with
the common object in the first instance to finish Haridwar Pandey as he was
suspected to be the killer of brother and nephew of Shobhit Chamar (A-2).
Finding that Haridwar was not available in the house, the appellants and other
members of the unlawful assembly committed the dacoity of the valuable property
and thereafter Shobhit Chamar (A-2) shot down the six male persons of the
family of Haridwar Pandey including two innocent children aged about 10 and 8
this culture, it would be very necessary to refer to the evidence of Bhajurama Devi
(PW 2) who during her cross- examinations on behalf of A-1 admitted that she
did not see any fire arm in the hands of A-1.
evidence of these four eye witnesses is consistent to prove that A-1 shared the
same common object with A-2 and other dacoits who had entered into the house of
Haridwar Pandey and were insisting that whereabouts of Haridwar Pandey be
disclosed to them and his gun be handed over. A-1 also actively participated in
getting Jagarnath Pandey and Ram Iqbal Pandey with their hands tied from behind
into the courtyard and thereafter A-2 pupped out bullets from his rifle. This
evidence has got bearing when we consider the sentence to do awarded to A-1.
The eye witnesses then stated that the appellants left the courtyard and within
a short time came back along with Taranath Pandey and Mahendra Pandey and
forced them to stand in the courtyard and thereafter A-2 fired at them and
gunned down in the presence of the family members. Anil Pandey and Sunil Pandey
who were sitting in the Dumuna here brought dragging by A-2. Having regard to
the ages of the children, some of the dacoits asked A-2 to set them free and
were accordingly freed. In the meantime, A-1 asked the miscreants not to spare
the children because when they grow, they would take the revenge. A-2 and his
associate then brought the children forcibly from the lad of their mother Lalmuni
Devi (PW 6) and thereafter A-2 and his associate punned down them. A-2 then
claimed that they had finished all the male members of Haridwar Pandey and now
his heard is cooled down. They thereafter left the place of accedence rejoicing
the victory and giving slogans of success in the name of God.
Mr. R.K.Jain, learned Senior Advocate appearing for the appellants, however,
urged that the prosecution has failed to establish any common object/intention
on the pat of the appellants to commit the crime in question. He further urged
that if they had a common object/intention to take the revenge, they would not
have spared the ladies. This submission does not increase us in view of the
ocular evidence of the four eye witnesses.
was then contended for the appellants that the evidence of four eye witnesses
who are close relatives of the deceased persons be not accepted as sufficient
in the absence of cooperation from independent evidence. He further urged that
the relations between A-2 and Haridwar had become strained and inimical because
A-2 strongly believed that Haridwar Pandey was responsible for the murder go
hid brother and nephew. It is because of this enmity, the eye witnesses falsely
implicated the appellants at the behest of Haridwar Pandey. This submission
again is devoid of any merit. The courts below have very carefully scrutinized
the evidence of four eye witnesses and fount it trustworthy. We are in
agreement with the appreciation of evidence done by the courts below and
therefore, we uphold the finding as regards the complicity of both the
appellants in the present crime.
Coming to the question of sentence, the trial court as well as the High court
awarded death sentence to both the appellants having regard to their
complicity, the common object shared by them, the degree of brutality and
revengeful conduct exhibited by them. The trial court as well as the High Court
had also referred to the law settled by this Court on the question of death
sentence. The High Court while confirming the death sentence of both the
appellants had referred to the decision of this Court in 1994(2) SCC 220. After
considering the law laid down by this Court in all these three reported
decisions, the High Court held that the present case is one of the rarest of
rare case where death sentence to both the appellants must be held to be the
appropriate sentence. The High Court also considered the mitigating
circumstances urged on behalf of the appellants against awarding the death
sentence. In paragraphs 34. 35 and 36. the High Court has summarised the
contentions raised on behalf of the Learned Counsel for the parties and
concluded that the trial court had committed no mistake in awarding the death
sentence to both the appellants and accordingly accepted the Reference and
dismissed the criminal appeals filed by the appellants.
Mr. R.K. Jain, learned Senior Advocate appearing for the appellants heavily relied
upon the minority decision rendered by Bhagwati, J. in the case of Bachan Singh
(supra). Advocating the view expressed by Bhagwati, J., he urged that the
present trend in the world is against the death penalty. Moreover, the present
crime cannot be said to be the rearers of rare cases. He, therefore, urged that
this is not a fit case where the appellants need to be awarded death sentence.
In the facts and circumstances of this case, sentence of life imprisonment to
both the appellants would meet the ends of justice. This argument completely
overlooks the majority judgment which has accepted the constitutionality of the
death sentence in the rarest of rare cased.
Having regard to the evidence of the eye witnesses and the facts proved in the
present case we may now deal with the question of sentence in respect of both
the appellant s separately. We may first deal with the question of sentence
awarded to Shiv Prakash Pandey (A-1) has been awarded the death sentence with
the aid of Section 145 IPC as also on the basis of a general statement made by
the four eye witnesses that the miscreants had gunned down the six persons
during the incident in question. The evidence on record discloses that A-1, A-2
and other miscreants came together along with Jagarnath Pandey and Ram Iqbal Pandey
with their hands tied behind and forced Ram Iqbal Pandey to give a knock on the
door under the pretext that he wanted to drink water. When the door was opened
by Bhajurama Devi (PW 2), A-1 and his associates entered into the house. A-1
also exhorted that no male number of Haridwar family should be kept alive.
Being a member of an unlawful assembly sharing a common object, he was rightly
found guilty with the aid of Section 149 IPC for committing six murders. But,
however, Bhajurama Devi (PW 2) in her evidence has admitted that A-1 was not
having any fire arm in his hands at the time of entire episode. Other three eye
witnesses undoubtedly made a general statement that A-2 and other miscreants
fired at the six persons who died on the spot. The evidence of all the four eye
witnesses is consistent that Shobhit Chamar (A- 2) had fired from his fire arm
on all the six persons who died instantaneously. In the face of this evidence,
a distinction based on the degree of complicity and brutality will have to be
drawn which has got a vital impact of awarding the sentence. It is well settled
while awarding the sentence, the court has to bear in mind the crime and the
criminal. Shobhit Chamar (A-2) had an axe to grind against Haridwar and his
family members as he believed that Haridwar was responsible for causing murders
of his brother and nephew. Shiv Prakash Pandey (A-1) as it appears from the
record that he is not related to Shobhit Chamar (A-2) and, therefore, he might
not be having the same degree of revenge and brutality as that of Shobhit Chamar
(A-2) had, Keeping this distinction in mind, in our occasion, the case of Shiv Prakash
Pandey (A-1) will not fall in the category of rarest of rare cases. This
distinction was over looked by the courts below. We are, therefore, of the
considered view that the death sentence awarded to Shiv Prakash Pandey (A-1)
was not justified having regard to the facts and circumstances of the case. His
case would not all in the category of rarest of rare cases. We accordingly
uphold the conviction of Shiv Prakash Pandey (A-1) under Section 302/149 IPC
but however the death sentence awarded to him by the courts below is altered to
one for life imprisonment.
Coming to the case of Shobhit Chamar (A-2), the evidence on record proves
beyond every reasonable doubt that he was the principal offender/miscreant who
fired from his fire arm on all the six persons including the two innocent
children. He had a deep routed revenge passed upon suspicion about the murders
of his brother and nephew by Ranidwar Pandey which prompted him to take average
against the family members of Haridwar and had done to the extent of killing
six persons belonging the family of Haridwar in a most brutal, heinous and
barbaric manner. Nothing was suggested to the eye witnesses on behalf of A-2
that any of these deceased persons had played any role in committing the
murders of his brother and nephew and at any rate having regard to the ages of
Anil Pandey and Sunil Pandey it could not be even remotely suspected that they
could be the assailants. Shobhit Chamar (A-2) wanted not only to teach a lesson
to the family members of Haridwar but also to create a terror in the minds of
the family members of Haridwar to satisfy his ego and muscle power. A-2
exhibited most inhuman conduct while rejoicing his victory after commission of
the crime. It is in this background. we are of the considered view that the
trial court as well as the High Court has committed no error in awarding death
sentence to him.
B.B.Singh, Learned Counsel for the State of Bihar drew our attention to the recent judgment of this Court in appeals 1998
(1) SCC 149. This decision to a great extent is similar even on facts.
Mr. Jain was unable to point out any mitigating circumstance which could pursued
us to alter the death sentenced of A-2. In our considered view, the courts
below were right in awarding the death sentence to Shobhit Chamar (A-2) as his
case clearly falls within the ambit of rarest f rare cases. We accordingly confirm
the death sentence of Shobhit Chamar (A-2).
The convictions of both the appellants on other courts i.e. under Sections 380
and 460 of the Indian Penal Code are also confirmed. Conviction and sentence of
Shiv Prakash Pandey (A-1) under Section 27 of the Arms Act to stand set aside
cut, however, the conviction and sentence of Sophist Chamar (A-2) under Section
27 of the Arms Act is confirmed.
the result, conviction and death sentence of Shobhit Chamar (A-2) passed by the
trial court and on Reference confirmed by the High Court is affirmed and his
Criminal Appeal is dismissed. The judgment and order of convection of Shiv Prakash
Pandey (A-1) under Section 302/149 of the Indian Penal Code cased by the trial
court and on appeal confirmed by the High Court is upheld but however the death
sentence awarded to him by the trial court and on Reference confirmed by the
High Court is altered to life imprisonment.