Sheo Ram / Shyam Manohar – triple murder including burning boy SC judgment copy Oct 21 1997

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

Vs.

RESPONDENT:
STATE OF U.P. & ORS.

DATE OF JUDGMENT:    21/10/1997

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

ACT:

HEADNOTE:

JUDGMENT:
J U D G M E N T
THE 21ST DAY OF OCTOBER, 1997
Present:
Hon’ble Mr. Justice M.M. Punchhi
Hon’ble Mr. Justice S.P.Kurdukar
A.K.Ganguli, Sr. Adv.(A.C.), Sushil Kumar, Dr. N.M. Ghatate,
Sr. Advs.,  V.Krishnamurthy, Mrs. Rekha Pandey, P.R.Kovilan,
S.M. Rai, B.M.Sharma, T.N.Singh, Mrs. Sushila Shukla (A.C.),
Mukesh K.  Giri, Shakil     Ahmed Syed,  C.D.  Singh  and    A.S.
Pundir, Advs. with them for the appearing parties.
J U D G M E N T
The following Judgment of the Court was delivered:
WITH
CRIMINAL APPEAL NO.593 OF 1997
S.P. KURDUKAR, J.
A primitive  theory of  punishment, “limb for limb; eye
for  eye;  ear    for  ear;  etc.,  etc.,”  prevalent  in     the
uncivilized society was put into action in letter and spirit
in the    present time.  The magnitude  of the  oresent  crime
needs no  elaboration. In the present crime five deaths were
involved in  which a boy of ten years had been assaulted and
thrown into the fire and roasted alive; heads of three human
bodies were  severed  and  the    5th  who  sustained  firearm
injuries died  in the  hospital after  about 17     days due to
septicaemia. Such  is the  gravity of  the crime. 24 persons
were arranged  at the trial as accused and at the conclusion
of the trail, the trial court awarded death sentence to four
accused, life  imprisonment to    twelve accused and acquitted
seven accused.    The trial  court made  a reference filed the
Section 355 Cr.P.C.: the convicted accused filed the appeals
including those who had been awarded capital punishment; the
State of  U.P. also filed two appeals; one against the order
of acquittal of seven accused and another for enhancement of
sentence in  respect of other accused. The batch of criminal
appeals was  heard together  by the High Court of Allahabad.
The High Court confirmed the death sentences awarded to four
accused and  in addition  thereto while     allowing the  State
appeal for  enhancement, awarded the death sentence to three
accused.  The  State  appeal  filed  against  the  order  or
acquittal had  been allowed  and  they    were  convicted     for
various offences including substantive offence under Section
302 with  the aid  of Section 149 IPC and sentenced each one
of them     to suffer life imprisonment. The particulars of the
accused, the  weapons used during the assault and details of
the deceased  will be  referred to  shortly. These  criminal
appeals      have     been    filed    in   this   Court   by     the
accused/appellants challenging    the judgment  and  order  of
conviction  and      sentence  passed  by    the  High  Court  on
28.1.1997. All these appeals were heard together. Since they
arise out  of a     common judgment, they are, therefore, being
disposed of by this judgment.
(2)  Before we advert to the prosecution case we may set out
the particulars of the accused/appellants since most of them
come from  the same family and some are close relatives. The
accused/appellants will     be referred  to in these appeals by
their original description as in the trial court:
x
……………………………………………………
Jodhey                   Raghubar(A-9)
……………………………………..  …………..
Chandrika    Shayam    Sheo Ram       Lalla     Pattu
Passi (died) Manohar    (A-2)       (A-3)      (A-7)
(A-1)
………………….           ………………………..
Harish Rajender Ravindra      Suresh    Prakash
(A-4)    (A-6)     (A-5)           (A-13)     (A-8)
Dhakan (A-18)  is nephew  of A-1, Nandlal (A-20) is uncle of
A-1, Srikrishna     (A-19) is son of Nandlal (A-20). Sriram (A-
14) and     Rajaram (A-15)     are brothers  and  sons  of  Bhawan
Passi. Rampal (A-16) and Itwari (A-17) are brothers and sons
of Bharosey.  Rakesh (A-11)  and Rajesh     (A-12) are brothers
and sons  of Prem  Giri (A-10) who is now dead. Sankatta (A-
22) and Mathura (A-21) are brothers. Dorey (A-23) is related
to A-22; Rampal Verma is A-24.
(3)  The deceased  persons were     also closely related to the
complainant Mahendra Kumar (P.W.1) as shown below:
Bhuwaneshwari
(deceased)
………….
Sukhdarshan
(deceased)
………………
Mahendra Kumar          Sandeep
(P.W.1)             (deceased)
(4)  In addition  to the above list or deceased persons from
one family,  Surendra (since deceased) was cousin of P.W.1.,
Kamlesh (since    deceased) was  a relative of P.W.1. Sheo Pal
and Ram     Gulam    are  the  relatives  of     Sukhdarshan  (since
deceased).
(5)  The motive of the present crime was sought to be traced
by the    prosecution from  the murder of Chandrika Passi, who
was a brother of A-1 and resident of village Bajarakha. This
murder took place two and a half months prior to the present
occurrence that     took place  on     23.6.1990.  The  murder  of
Chandrika was  alleged to  be brutal  one as  his  head     was
severed. The  family members  of Chandrika  were  suspecting
that Sheo  Pal and  Ram Gulam,    the relatives of Sukhdarshan
had committed  the said     murder and, therefore, the criminal
case against both of them for an offence of murder is stated
to be pending. The accused laboured under a belief that Sheo
Pal, Ram  Gulam and  his relatives  were responsible for the
murder of  Chandrika and it was this belief which gave cause
to  nurture   enmity   against     the   family    members      of
Bhuwaneshwari, Sheo Pal and Ram Gulam. The second reason for
enmity sought to be alleged by the prosecution was that Prem
Giri (A-10) (since deceased) who was residing in an adjacent
house to  Bhuwaneshwari, had  an axe  to grind    against     the
family of  latter as  a     civil    dispute     in  regard  to     the
property belonging  to “Thakurji  Trust” was pending between
them. Bhuwaneshwari obtained the decree against Prem Giri in
the trial  Court but  we are  told that     the appeal filed by
Prem Giri is pending in the higher court.
(6)  The occurrence  in question  took place  on 23.6.90  at
about 5.00  p.m., Mahendra  Kumar (P.W.1)  lodged the FIR at
about 9.05  p.m. at  Mitauli Police  Station situated  at  a
distance of  15 km.  from the  place  of  incident.  In     his
complaint Mahendra  Kumar (P.W.1)  had disclosed  all the 24
named accused  along with  8 to     10 unidentified persons who
had come  to the house of Bhuwaneshwari. He then stated that
at that     time he  and Surendra    (deceased) were sitting near
the couldron  and  his    father    Sukhdarshan  (deceased)     was
sitting near  the Kolhoo. All the accused person, armed with
deadly weapons,     reached near  the Kolhoo. A-1, A-2, A-4 and
A-13 were  armed with  Bankas,    A-10  was  carrying  a    DBBL
licensed gun,  A-3 and    A-16 were armed with SBBL guns, A-20
was carrying country made SBBL gun and the remaining accused
were armed  with country  made pistols and guns. The accused
persons     when  reached    near  the  Kolhoo,  started  abusing
Sukhdarshan and Bhuwaneshwari (both since deceased) and were
also giving bad words on other members of their family. Then
all the     accused demanded  show how both could remain alive.
Saying so all the accused persons chased Sukhdarshan who out
of fear entered into the house of Shambhudayal and raised an
alarm.    Kamlesh      (since  deceased)   s/o  Shambhudayal     and
Shakuntala after allowing Sukhdarshan inside the house tried
to shut     the door  bu the accused inserted the barrel of the
gun through  the door  and fired  which hit Kamlesh who fell
down.
(7)  The miscreants  then opened the door and after entering
into the  house fired  at Sukhdarshan,    who fell down in the
courtyard. A-2,     A-4 and  A-13 thereafter caught hold of the
hands and  feet of  Sukhdarshan whereupon  A-1 assaulted him
with Banka  and severed     his head  and kept it in a piece of
cloth. The  assailants then surrounded the house of Mahendra
Kumar (P.W.1)  the complainant,     opened the door, demolished
the walls  and entered    into his  house. Family     members  of
Mahendra Kumar    (P.W.1), namely,  Goura the  grand mother of
Surendra, and his wife Manorama, were inside the house, they
requested them    not to    assault any  of the  family members.
Surendra (since deceased) had a licensed gun. He immediately
closed and  bolted the    door of     his room from inside. Since
the door  could not  be opened,     A-1 told  his associates to
sprinkle the  diesel on     the house  and set  it on fire. The
miscreants then     took out  the    diesel    from  the  drum     and
sprinkled it  on the  Chappar (roof) and also poured it into
the room  through a  hole where Surendra was hiding and then
lit the     fire to  chappar and  asked Surendra  to  come     out
otherwise all  his family  members would  be done  to death.
Sandeep (since    deceased) a boy aged about 10 years, was the
younger brother     of the     complainant, came  out and  started
abusing the  accused persons. A-6 then fired from his gun on
Sandeep causing     injuries to  him and thereafter A-6 and A-8
lifted Sandeep    and threw  him into  the fire.    Sandeep     was
burnt alive  and died  in the said fire. This was the second
casualty in the course of the attack levelled by the accused
on the    family members    of the    complainant. Surendra (since
deceased) then came out of the room and tried to run away as
by that     time the fire had engulfed his house. When Surendra
was running away he was fired at and because of the fire arm
injuries he  fell down    in the    kitchen. Thereafter A-2, A-4
and A-13  caught hold  of the  hands and  legs of  Surendra,
facilitating A-1 to assault him with Banka. A-1 then severed
the head  of Surendra and kept it in the same piece of cloth
where the  head of  Sukhdarshan was kept. It was then stated
that in     the meantime  Bhuwaneshwari, the  grand  father  of
Mahendra Kumar    (P.W.1)     who  was  returning  from  Bajarkha
market, on  seing the  accused    in  action,  tried  to    rush
towards his  house but he was also not spared and caused him
fire arm injuries. A-2, A-4 and A-13 then caught hold of the
hands and feet of Bhuwaneshwari and thereafter A-1 assaulted
him with  Banka and severed his head and kept it in the same
price of  cloth where  two  heads  were     already  kept.     The
accused persons thereafter went in search of Sheo Pal but he
was not     found in the house. The accused persons then stated
that Sheo Pal was the person who had committed the murder of
Chandrika Passi     and, therefore,  he must  be traced. Seeing
the ghastly murders of four persons and gun shot injuries on
Kamlesh,  the  family  members    of  Mahendra  Kumar  (P.W.1)
requested the  accused persons to spare other family members
whereupon A-1  told his     associates that  let the  remaining
members of the family be spared to mourn the deaths of their
dear  ones.   A-7  then      took    away  the  licensed  gun  of
Sukhdarshan.
(8)  It was  then stated  in the  complaint that due to fire
the house  of Surendra    and Articles therein were completely
burnt and  reduced to ashes. Such a ghastly attack continued
for a  period of  one and   a  half hour.  Although it was a
weekly market  day of  village Bajarkha     and so many persons
had gathered  in the  market but nobody dared to come to the
rescue. The  brutality committed  by  the  accused  persons,
according to  the complainant  did not    rest at that but the
accused persons     then took  out     a  victory  procession     and
raised the  slogans `Shyam  Manohar Zindabad’,    `Nandlal and
Prem Giri Zindabad’; Lakhpal Bhaiya Zindabad” and thereafter
went towards the house of Chandrika Passi (since deceased).
(9)  Mahendra Kumar  (P.W.1)  then  immediately     prepared  a
complaint  containing    aforesaid  facts  and  took  injured
Kamlesh in  a tractor  to the  police station which was at a
distance of  15 kms.  They handed  over the  complaint to SI
Surendra Kumar    Pandey who  registered the  FIR     Ex.Ka-1  at
about 9.05  p.m. on  the same evening. After registering the
crime Si  proceeded to    the place  of occurrence but by that
time it     was too  late in the night and, therefore, he could
not hold  the  inquest    on  the     dead  bodies  but,  however
recorded the statements of various persons during late night
hours. On  the next  day in  the early    morning he  held the
inquest     on  the  dead    bodies    of  Sukhdarshan     (Ex.Ka-15),
Bhuwaneshwari (Ex.Ka-29),  Sandeep (Ex.Ka-26)  and  Surendra
(Ex.Ka-29). The     dead bodies  were then sent for post-mortem
examination. Other  formal panchnamas etc., were carried out
on 24.6.90. Kamlesh, who had sustained the gun shot injuries
was admitted  in the  hospital on  24.6.1990 at     about    8.00
a.m., who  lateron succumbed to the injuries on 10.7.90. The
inquest report is at Ex.Ka-23. Eight empty cartridges, empty
drum of     diesel and the ladder were seized from the place of
occurrence. During investigation the accused persons came to
be arrested  and while    in  custody  A-4  made    a  voluntary
disclosure statement  under Section  27 of  the Evidence Act
which came  to be recorded and it led to the recovery of two
severed heads  of Sukhdarshan  and Bhuwaneshwari.  A-1 after
his arrest  also made  a statement which led to the recovery
of a  gun from    the well.  After  completing  the  necessary
investigation a     charge-sheet came  to be  filed against  24
accused persons     for offences punishable under Sections 302,
147, 148,  307, 436,  452, 404    read with  Section 149    IPC.
Shyam Manohar  was separately charge-sheeted and tried under
Section 25 of the Arms Act.
(10) The accused persons denied the charges levelled against
them. They pleaded that they have been falsely implicated in
the present  crime due    to enmity with the witnesses as well
as the    police. A-1  further  pleaded  that  he     was  living
separate from  Chandrika who  had a quarrel with him. He was
not doing  any pairvi  in  the    murder    case  of  Chandrika.
According to  him Lakhpati and Sripal were leading the gange
of dacoits  and the  present crime might have been the handy
work of     this gange.  A-11 pleaded  that he  had  no  grudge
against the  family members of the complainant on account of
civil dispute.    Bhuwandeshwari had obtained a decree against
his father  Prem  Giri    but  the  appeal  against  the    said
judgment and  decree is     still pending in the High Court. He
has no    concern with  this dispute.  He and his brother A-12
were living  at Gola  where their children were studying and
they were  not present    at the    time when  the incident took
place. A-1  in his  defence examined  Sher Ali    (D.W.1). The
other three  defence witnesses were examined on behalf of A-
11 and    A-12. The appellants pleaded that they were innocent
and  they  be  acquitted.  The    charge-sheet  was  submitted
against 24 accused persons but however Prem Giri (A-10) died
during the  pendency of     trial and,  therefore, trial abated
against him.
(11) In order  to bring     home  the  guilt,  the     prosecution
mainly relied  upon the     evidence of  two star witnesses who
claimed     to   have  seen  the  entire  occurrence.  The     eye
witnesses were    Mahendra Kumar    s/o Sukhdarshan     (P.W.1) and
Lallu Ram  (P.W.2) who was residing in the adjacent house of
Shambhu Dayal, brother of Kamlesh (since deceased). Dr. S.K.
Shukla (P.W.3)    conducted the post mortem examination on the
headless dead  body of Surendra and also on his severed head
(Ex.K-3). Dr.  A.K. Gupta  (P.W.8) held     the autopsy  on the
skulls of deceased Bhuwaneshwari and Sukhdarshan (Ex.K-6 and
K-7 respectively).  Dr. S.K.  Tiwari (P.W.9)  conducted     the
autopsy on  the dead  bodies of     Sandeep, Bhuwaneshwari     and
Sukhdarshan.  Post  Mortem  reports  are  Exs.8,  9  and  10
respectively. Dr.  A.K. Srivastava  conducted the autopsy on
the dead  body of  kamlesh. Dr. A.K. Patni (P.W.10) examined
Kamlesh when  he was  brought in  an  injured  condition  on
24.6.90 at  8.45 p.m. SI Surendra Kumar Pandey (P.W.14), the
Investigating Officer  with the     assistance of two other SIs
completed the entire investigation, in addition to the above
ocular    evidence   the    prosecution  also  relied  upon     the
evidence relating  to the  recovery of various incriminating
articles  including   the  recoveries    of  three  heads  of
Bhuwaneshwari,    Sukhdarshan   and   Surendra.    As   already
indicated above the defence also examined four witnesses.
(12) The First    Additional Sessions  Judge, Kheri on careful
scrutiny  of   oral  and   documentary    evidence  on  record
convicted A-1,    A-2, A-3,  A-4, A-5, A-6, A-7, A-8, A-11, A-
12, A-13,  A-20, A-21,    A-22, A-23 and A-24 for the offences
punishable under  Sections 302,     302/149, 404, 148, 436, 449
and 201     IPC. A-1 was also convicted under Section 25 of the
Arms Act.  After hearing  the parties  and their  respective
counsel     the  trial  court  considered    the  complicity     and
culpability of    A-1, A-2, A-4 and A-13 and the common object
shared by  them under  Section 149  IPC. Shyam Manohar (A-1)
was held responsible for committing the murders of Surendra,
Sukhdarshan, Bhuwaneshwari  and for  murders of     Kamlesh and
Sandeep with  the aid  of Section  149 IPC.  Suresh  (A-13),
Shivram     (A-2)     and  Harish  (A-4)  were  held     liable     for
committing murders  of Surendra,  Sukhdarshan, Bhuwaneshwari
and Sandeep  under Section 302/149 IPC, and accordingly each
one of    them  was  awarded  the     extreme  penalty  of  death
sentence. For other offences they were awarded various terms
of sentences.  As regards A-03, A-5, A-6, A-7, A-8, A-11, A-
20,  A-21,  A-22,  A-23,  A-24    the  trial  Court  inflicted
sentence of life imprisonment on each of these accused under
Section 302/149     IPC and  also various terms of sentences on
other counts.  Substantive sentences  were  ordered  to     run
concurrently. The Additional Sessions Judge accordingly made
a reference  under Section 366 Cr.P.C. to the High Court for
confirmation of the death sentences. The trial court however
acquitted A-9,    A-14, A-15, A-16, A-17, A-18 and A-19 of all
the charges. The convicts including the condemned perisoners
[referred appeals  to the  High Court.    The State Government
also preferred    appeals to the High Court for enhancement of
sentences as  also against the order of acquittal in respect
of seven  accused persons.  All     these    appeals     were  heard
together by the High Court of Allahabad Bench at Lucknow and
vide its  impugned judgment  dated 28.1.1997  dismissed     the
appeals filed  by the  convicts and  the condemned prisoners
and partly  allowed  the  appeal  filed     by  the  State     and
enhanced the sentence of life imprisonment to death sentence
in respect of Prakash (A-8), Rajendra (A-6) and Ravinder (A-
5); the     order of  acquittal in respect of A-14, A-15, A-16,
A-17, A-18  and A-19  was reversed  and they  were convicted
under Sections    148, 436,  449, 201, 302/149 IPC and each of
them has  been sentenced  to life  imprisonment and  various
other terms  of sentences  on other  counts.  The  order  of
acquittal of Raghubar (A-9) has been upheld. The net result,
therefore, is  out or  24 charge  sheeted accused  Prem Giri
died, Raghubar    (A-9) stood  acquitted, 7  accused have been
awarded extreme     penalty of  death and    remaining 15 accused
have been  awarded life     imprisonment  for  committing    five
murders. The sentences awarded to other accused persons were
upheld by  the High  Court vide its judgment and order dated
28.1.1997. It  is against  this judgment and order passed by
the High Court, the appellants have preferred these criminal
appeals to  this Court.     Since 7  accused persons  have been
awarded death  sentence and  they  have     filed    the  appeals
through jail,  we thought  it fit in the interest of justice
to appoint a Senior counsel to assist the court. Accordingly
Mr. A.K.  Ganguli, Sr.    Counsel was  appointed as  an amicus
curiae to  represent  by  Shri    Sushil    Kumar,    Learned     Sr.
Counsel. Shri  Shakil Ahmed Syed, Learned Counsel also filed
Criminal  Appeal   No.593/97  on   behalf  of  some  of     the
accused/appellants other  than the  condemned prisoners. The
State was  represented by  Dr. N.M.  Ghatate, Learned Senior
Counsel. All  these appeals  were heard together, since they
arise out of a common judgment.
(13) At the  outself it     needs to be stated that counsel for
the parties  were given     full opportunity to represent their
respective cases  since     seven    accused     persons  have    been
awarded capital     sentence and  other  15  accused/appellants
have been  awarded sentence  of life  imprisonment.  We have
carefully scrutinized  the oral evidence and other materials
placed on  record with the assistance of the learned counsel
for the     parties and have also gone through the judgments of
the courts below.
(14) The very  narration of  facts given  in  the  preceding
paragraphs would  indicate the    magnitude of  the  crime  in
question. The  two eye    witnesses to  the occurrence are the
close relatives     of the     deceased. The prosecution sought to
prove the  motive against  the    accused     in  committing     the
present crime.    It is  on this background we are required to
scrutinize and    appreciate the evidence of the eye witnesses
with utmost care and caution.
(15)  The  prosecution    case  substantially  rested  on     the
evidence  of  two  eye    witnesses,  namely,  Mahendra  Kumar
(P.W.1) and Lallu Ram (P.W.2). mahendra Kumar (P.W.1) is the
son  of     Sukhdarshan  (since  deceased)     and  grand  son  of
Bhuwaneshwari (since deceased). Sandeep (since deceased) was
his brother  and Surendra,  another deceased was his cousin,
Kamlesh (since deceased) was a    close relative.
Coming to    the evidence of actual occurrence which took
place on  June 23,  1990 at  about 5.00     p.m. it needs to be
stated that  a complaint was lodged on the very same evening
at about  9.05 p.m.  in the  police station  at Mitauli at a
distance of  15 kms.  from Bajarkha  village. Mahendra Kumar
(P.W.1) in  his evidence  testified that  at about 5.00 p.m.
all the     24 accused  along with 8 to 10 unidentified persons
came in     the direction    of Kamlesh’s  house.  At  that    time
Mahendra Kumar    (P.W.1) and  Surendra were  sitting near the
couldron and  Sukhdarshan was  sitting towards    the north of
the kolhoo.  A-1, A-2,    A-4 and A-13 were armed with bankas,
Prem Giri  (A-10) (now    dead) was armed with a DBBL gun, A-3
to A-16     were armed  with SBBL    guns, A-20  was armed with a
country made SBBL gun and the remaining accused persons were
armed with country made pistols and guns He then stated that
the accused  persons demanded that Ram Gulam and Sheo Pal be
called and  they wanted     to see how they would remain alive.
The accused  persons then  chased Sukhdarshan  who  ran     and
entered into the house of Shambhu Dayal and raised an alarm.
Shambhu Dayal  and Shakuntala  Devi  (complainant’s  mother)
took Sukhdarshan inside the house and tried to shut the door
but one     of the     accused inserted  the    barrel    of  the     gun
through door  and fired which hit Kamlesh Kumar. The accused
then opened  the door and fired at Sukhdarshan who fell down
in the    courtyard. A-2, A-4 and A-13 then caught hold of the
legs and  hands of  Sukhdarshan and thereafter A-1 assaulted
him with Banka and severed his head which he kept in a piece
of cloth.  The accused    persons then surrounded the house of
P.W.1 and started demolishing the walls. They asked Surendra
to come     out as     he bolted the door of his room from inside.
A-1 asked  his associates  to  sprinke    the  diesel  on     the
chappar and  also pour    it into the room and set it on fire.
Accordingly some  of the  accused took    the diesel  from the
drum and one of them climbed up the chappar with the help of
a ladder,  sprinkled the  diesel on  the  chappar  and    also
poured the  same into  the room and thereafter the house was
set on    fire. Sandeep,    the brother of the complainant, aged
about 10 years, came out and abused the accused whereupon A-
6 fired at him as a result of which he fell down. A-5 and A-
8 then    lifted Sandeep    and threw him into the fire. Sandeep
was roasted  alive. The     witness further  testified that the
house, wherein    Surindra was  hiding, when  caught fire,  he
came out  of the said house and tried to run away but he was
gun down.  He fell  down in  the kitchen.  A-4, A-2 and A-13
then overpowered  him by catching hold of his arms, feet and
thereafter   A-1 assaulted  him with  Banka and     severed his
head and  kept it  in the same piece of cloth with the other
head. The  witness then     stated     that  Bhuwaneshwari  (since
deceased), his    grand father,  who was    returning  from     the
weekly market,    when saw  the accused persons in action came
near and  requested them  not to  kill    the  family  members
whereupon he  was fired     and thereafter     A-4, A-2  and    A-13
overpowered him. A-1 then assaulted Bhuwaneshwari with Banka
and severed  his head and kept it in the same piece of cloth
where two  heads were  already kept. He then stated that the
accused persons     made a     search for Sheo Pal who was alleged
to have     taken part  in committing  the murder of Chandrika,
the brother  of A-1, by severing his head but Sheo Pal could
not be traced. P.W.1 further stated that the accused persons
were using  the firearms  freely and  created a     terror. The
incident continued  for one  and a  half hour.    The  accused
personals then    carried the  three  heads  with     them  in  a
procession  celebrating     their    victory     and  were  shouting
slogans “Shyam    Manohar     Zindabad,  Nandlal  and  Prem    Giri
Zindabad and Lakhapat Zindabad”. Then they went to the house
of Chandrika. The witness was cross-examined at great length
but the     defence could    hardly bring  on record any material
which would discredit his credibility. The evidence of P.W.1
finds corroboration  from the first Information Report which
was  lodged   at  9.05     p.m.  (within    four  hours  of     the
occurrence) at    Mitauli police    station. The  complaint     was
written after the incident was over. Mahendra Kumar (P.W.1),
Lallu Ram  (P.W.2) and    Kamlesh then  went in  a tractor  to
lodge the  First Information  Report. The  FIR    came  to  be
registered against  24 accused persons. It needs to be noted
that Mahendra  Kumar (P.W.1)  in his complaint had named the
accused persons     with the  weapons which  they were carrying
and the manner in which they assaulted five persons who lost
their lives in the present crime. The FIR fully corroborates
the evidence  of  P.W.1.  The  evidence     of  Mahendra  Kumar
(P.W.1) does  not suffer  from any  infirmity. We  have also
scrutinized  the  evidence  of    Lallu  Ram  (P.W.2)  and  it
corroborates in     all material  particulars the    evidence  of
Mahendra Kumar    (P.W.1). The trial court as well as the High
Court had  scrutinized their  evidence    very  carefully     and
accepted the  same as  truthful. We  concur with  the courts
below as  regards appreciation    of the evidence of these two
witnesses.
(16) Mr. A.K.  Ganguli, Learned Senior Counsel appearing for
the condemned  prisoners, Mr.  Sushil Kumar,  Learned Senior
Counsel and Mr. Shakil Ahmed Syed, Learned Counsel appearing
for the     life convicts    urged that  the     conviction  of     the
accused is based on the evidence of interested witnesses and
the same  be  not  accepted  as     truthful  inasmuch  as     the
presence of  these witnesses  at the  time of occurrence was
extremely doubtful.  It was  contended that  23.6.90  was  a
market day  of Bajarkha     village and  these  witnesses    also
admitted that the market is at a distance of a furlong where
many villagers had come for purchases. The witnesses further
admitted that  many persons  had gathered  at the  place  of
occurrence, if this be so it was very much necessary for the
prosecution to    examine some  independent witnesses  to lend
assurance to  the credibility  of the  evidence of these two
eye witnesses.    These submissions  do not impress us at all.
Now a  days it    is a  common tendency that so outsider would
like to     get involved  into criminal  case much     less in the
crime of  present magnitude  and, therefore,  it  was  quite
natural that  no independent  witness would  come forward to
assist the prosecution. It is well settled that the evidence
of witnesses  cannot be     discredited only on the ground that
they are  close relatives  of the deceased persons. All that
is required  in such  a situation  is that  the     court    must
scrutinize the    evidence of  such witnesses with utmost care
and caution. The magnanimity of the present crime and nature
of prosecution    evidence has  put us  on guard to appreciate
the evidence of these two eye witnesses with utmost care and
caution. We  have done this exercise and we are unable to be
persuaded to  discard the evidence of these two witnesses on
the grounds  urged before  us. The  evidence of     both  these
witnesses   in      our    considered    view   is      absolutely
straightforward, unblemished  and without any infirmity. The
First Information Report which was lodged within four hours,
naming    all   the  accused   also  lends  assurance  to     our
conviction that     the evidence  of  these  two  witnesses  is
trustworthy and     cannot be discarded. The contentions of the
learned counsel for the accused, therefore, stand rejected.
(17) It was  then contended  by Mr.  Sushil Kumar  that     the
claim of the complainant that he lodged the FIR at 9.05 p.m.
is false.  According to     him if     the FIR  was registered  as
alleged there  was no reason whatsoever why the copy thereof
was not     sent to  the  Illaqa  Magistrate  at  the  earliest
opportunity. As     regards the  contents of  the FIR  he urged
that it was impossible for any human being to write down the
complaint with such details when four dead bodies were lying
of which three were without heads in the house. The contents
of the    complaint manifestly  suggest that  it was  an after
thought exercise  with the  help of  police or    somebody  to
spread a wide net and involve as many accused as possible to
take revenge. He, therefore, urged that the complaint lodged
by Mahendra Kumar (P.W.1) be treated a false document and be
not accepted for the purpose of seeking corroboration to the
evidence of P.W.1. He also urged that the complainant at the
relevant time was serving at a different place and his claim
that he     had come  on leave  for  two  days  was  totally  a
concocted plea. According to him the complainant was brought
to the    village at  a later point of time and the police had
manipulated entire prosecution story. We see no substance in
any of    these contentions  for the  simple reason  that     the
police machinery  reached the  place of     incident  within  a
short time i.e. at about 11 p.m. and in fact the evidence of
SI  Pandey   (P.W.14)  would   show  that   the     wheels      of
investigating  machinery  started  moving  during  the    same
night. The  statements of  some of the persons were recorded
during the  same night.     The inquest on the dead bodies were
carried out  early in the morning of June 24, 1990. There is
nothing in  the evidence  of SI     Pandey (P.W.14) to indicate
that he     had ante  dated all  these documents to suit to the
complainant’s version.    There was  no earthly  reason for SI
Pandey (P.W.14)     to implicate  and spread the net so wide as
contended for  the accused  to arraign 24 accused persons in
the present  crime. To    our mind  it is     only a     figment  of
imagination to contend that the investigation carried out by
the investigating  machinery was  ante dated at the instance
of the    complainant. It     is true that the complainant at the
relevant time  was posted at a far of place but he testified
that he     had come to the village Bajarkha on two days’ leave
as he  had not come till then to his village after he joined
the service.  This explanation given by the witness is quite
plausible and  the courts  below were right in accepting his
presence at  the time  of occurrence.  It is  also true that
there was  a delay  in forwarding the copy of the FIR to the
Illaqa Magistrate  but that  circumstance would not demolish
the other  positive and     credible evidence  on record.    This
would  only   show  how      in  such   a    serious      crime     the
investigating agency  was not careful and prompt as it ought
to be.
(18) It was then contended for the appellants that if really
the incident  was reported  at 9.05  p.m.  then     surely     the
inquest reports     which were  prepared on  the following     day
must mention  the title     of the crime. But it was left blank
and, therefore,     this omission    was a  serious infirmity and
demolishes the    very substratum     of the prosecution based on
the first  Information Report which is a concocted document.
At the    first flush  the argument  appeared to us attractive
but on scrutiny and consideration of the materials on record
we are    unable to  accept this    submission.  If     really     the
complaint was  not lodged at 9.05 p.m. then the police could
not have  reached at  the place     of occurrence at 11.00 p.m.
Such minor  omission is     nothing but  a     bonafide  error  or
casual approach     on the     part of  the  investigating  agency
which does  not affect    the substratum    of  the     prosecution
story. It  was then  urged that Kamlesh was taken the police
station in  an injured    condition but he was not sent to the
hospital for  treatment. In  fact Kamlesh was not traced for
the whole  night and  only on  the following day he appeared
and was admitted in the hospital where he died after 17 days
due to    septicaemia. It     was, therefore,  urged that neither
Kamlesh nor  the complainant ever went to the police station
to lodge  a complaint  at 9.05    p.m. and  this complaint was
manufactured at a later stage with the connivance of police,
We see no substance in this contention also because the fact
remains that  Kamlesh was  injured during  the    incident  in
question. If  he was  not sent    to the    hospital for medical
examination and     treatment by  the investigating  agency  no
fault could be found with the complainant’s evidence and the
FIR (Ex.  Ka-1). In  these circumstances  we see no merit in
all these contentions raised on behalf of the appellants.
(19) No serious arguments were advanced before us as regards
the cause of death of any of these five deceased persons. It
was also  not seriously     challenged that  the finding of the
courts below  that Bhuwaneshwari,  Sukhdarshan, Surendra and
Sandeep met  with homicidal  death during  the    incident  in
question.  Suffice   it     to   mention  that   Bhuwaneshwari,
Sukhdarshan and Surendra had sustained many incised injuries
due to    assault by Banka on their vital parts in addition to
the prosecution     was first  fired at  by A-6 and then he was
thrown into the smouldering fire. The injuries caused on his
dead body  either by  fire arm    or by  banka  could  not  be
detected in  the post-mortem  report for  the obvious reason
that his  body was completely charred. The autopsy report of
Sandeep also  did not  indicate that  any pellet  was  found
embeded in  the body  or any  pellet could be recovered from
the place  where he  was burnt to death. This fact has got a
relevance when    we consider  the death    sentence awarded  to
Rajendra (A-6).     After going through the medical evidence on
record we  have no  manner of  doubt that these four persons
met with  the homicidal deaths. They were brutally murdered.
As far    Kamlesh (since deceased) was concerned it was proved
beyond any  pale of  doubt that     he was     the first person to
sustain gun  shot injuries  and died  in the hospital due to
septicaemia which  was the  result of injuries on his person
during occurrence in question.
(20) Shri Sushil Kumar, Learned Senior Counsel appearing for
the life  convicts/appellants urged  that they were roped-in
in the    present crime  with the     aid  of  Section  149    IPC.
According to  him the common object of the unlawful assembly
as alleged  by the  prosecution was  to take revenge against
Ram Gulam  and Sheo  Pal who  alleged to  have committed the
murder of  Chandrika by     severing his  head. If this was the
common object  of the unlawful assembly it could not be said
that these  life  convicts/appellants  assuming     to  be     the
members of  such an unlawful assembly shared the same common
object which  the assailants  of five  victims    had  and  in
pursuance thereof  committed the  murders  in  question.  He
urged that  these convicts/appellants had nothing to do with
the murder  of Chandrika  and, therefore,  theory of revenge
against any  of the  members of the complainant’s family had
no basis.  In the absence of specific proof of common object
of the    unlawful assembly  to commit the murders in question
he  urged   that  life    the  convicts/appellants  cannot  be
convicted with    the aid     of Section  149 IPC.  In support of
this contention     he drew our attention to three decisions of
this Court:  (i) Shambhu  Nath Singh and Others vs. State of
Bihar AIR  (1960) SC  725 (ii)    Bhudeo Mandal and Others vs.
State of  Bihar (1981)    2 SCC  755; and (iii) Raghubir Singh
and Others  vs. State  of Punjab  (1996) 9  SCC 233. We have
very carefully    gone through  these  decisions    and  in     our
considered view in the facts and circumstances of this case,
the ratio  laid down  in any of these decisions will have no
application. Taking  the prosecution  case as  it is  if the
object of the unlawful assembly was to take revenge upon Ram
Gulam and  Sheo Pal  and after coming to know that they were
not available  at the  house of     Bhuwaneshwari and  Surendra
(both since deceased), there was no reason for these accused
persons      to    continue   to     fire    on   these   victims
indiscriminately; to  catch hold  of the four victims one by
one; severe  the  heads     of  three  persons  and  keep    them
together in  a piece  of cloth;     and threw Sandeep into then
smouldering fire.  What sin  the  young     boy  of  10  years,
Sandeep had  committed so  that he  also could not have been
spared from  the assault?  He was  totally innocent  and was
hardly of  an age  to understand  the rivalery    between     the
parties to take side of one or the other. He was thrown into
the fire  and  roasted    alive.    Injuries  sustained  by     the
deceased persons unmistakably indicated that it could not be
the job     of handful  of persons. It was pre-planned and well
thought of  design to commit genocide. It is in this context
if we read the evidence of P.W.1 and P.W.2 we have no manner
of  doubt  that     the  accused  persons    formed    an  unlawful
assembly and  the object  of that  assembly was     not only to
take revenge  against Ram  Gulam and  Sheo Paul     but also to
take revenge upon the family members of Bhuwaneshwari as Ram
Gulam and  Sheo     Pal  were  related  to     Sukhdarshan  (since
deceased) and the accused persons were under the belief that
the victims  were giving shelter to them, All the appellants
in our    considered view     formed an unlawful assembly with an
object to  take revenge     against Ram  Gulam and Sheo Pal and
also to     commit mass  murders in  that process    to prove the
supermacy and  create a     terror in  the minds  of the family
members of  Bhuwaneshwari. The    occurrence in  question     was
full of     revenge which    was deep-rooted     in  the  minds     and
action of  the accused    persons and  they were determined to
take revenge  in the  same manner  in  which  Chandrika     was
murdered. Apart     from this we see no difficulty holding that
the unlawful  assembly could  develop a common object on the
spur of     moment to commit the massacre of the family members
of Bhuwaneshwari. We, therefore, see no reason whatsoever to
differ from the findings of the courts below that the common
object of  the unlawful     assembly was  to  commit  the    mass
murders of  the family    members of  Bhuwaneshwari. There  is
also another  angle  to     judge    the  common  object  of     the
unlawful assembly  in the present crime and that is the mode
of brutalty.  Chandrika was alleged to have been murdered by
Ram Gulam  and Sheo  Pal (trial     of both  is  pending).     The
manner in which Chandrika was done to death and his head was
severed the  accused wanted  to take  revenge  in  the    same
manner and  for this  reason the  modus operandi  adopted by
them was to cause firearm injuries to these three persons on
a non-vital  part of  the  bodies  so  that  they  would  be
immobilized and     then cause Banka injuries and at the end to
severe their  heads. Only  one    gun  shot  would  have    been
sufficient to  cause  the  death  of  four  victims  as     the
assailants were standing at a close range but that could not
have satisfied    the ego     and vengence because they wanted to
severe the heads of these three victims when they were lying
immobilized due     to injuries.  It is for this reason we have
started out  judgment by saying that the accused persons had
in the    letter and  spirit followed  the primitive theory of
punishment.
(21) Learned  counsel  appearing  for  the  appellants    then
contended that    there is  no material on record to hold that
the accused  persons had  any enmity  with the family of the
deceased. The  prosecution came forward with two fold notice
(i) civil  litigation between Prem Giri and Bhuwaneshwari as
regards the  “Thakurji’s Trust”     and its  property; and (ii)
the accused  persons belonged to the party of Shyam Manohar.
The first  part of motive, the civil litigation between Prem
Giri and  Bhuwaneshwari ended  in favour of Bhuwaneshwari in
the first  court and  the appeal  of Prem  Giri     is  pending
before the  Orissa High     Court. In a village such dispute of
ten assume  importance out  of proportion. It is, therefore,
not surprising    that Prem  Giri joined    the party  of A-1 to
settle his  ego and score also. As far as the second limb of
the motive  is concerned  it is     the case of the prosecution
that the  accused persons  belonged to    the party  of  Shyam
Manohar (A-1) who wanted to take revenge against the victims
in a  most brutal  and befitting  manner for  murder of     his
brother Chandrika.  The two  suspects, namely, Ram Gulam and
Sheo Pal  happened to be the close relations of Sukhdarshan.
The  appellants/accused      were     under     the   belief    that
Sukhdarshan  and   his    other  family  members    were  giving
protection to  these two suspects and it was for that reason
the accused  persons formed an unlawful assembly and marched
towards the  house of  victims to teach a lesson in the same
manner in  which Chandrika was done to death and commit mass
murders. The  issue of motive in our considered view is well
proved in  the facts and circumstances of the case in favour
of the prosecution.
(22) It was  then contended  for the accused/appellants that
the  evidence    of  P.W.1   was      totally   artificial     and
unbelievable. To  support his  contention our  attention was
drawn to  his evidence    wherein     he  had  stated  that    when
accused persons     were assaulting  Kamlesh, Sandeep, Surendra
and Sukhdarshan     he was standing in front of them requesting
them to     spare his  family members.  If the accused had gone
with the common object of committing the mass murders and if
Mahendra Kumar    (P.W.1) was  available so  easily yet it was
surprising that     not even a scratch was found on his person.
It was    almost    easy  for  the    accused     persons  to  finish
Mahendra Kumar    (P.W.1) as  well as (P.W.2) but in fact they
did not     do  so.  Relying  upon     this  circumstance  it     was
contended that    though these witnesses claimed to be the eye
witnesses but  their presence  was  extremely  doubtful     and
police    with   the  connivance    of  Mahendra  Kumar  (P.W.1)
contrived a  false story by spreading a wide net. We are not
impressed by this argument at all as the materials on record
prove otherwise.  It was  then contended that almost all the
accused persons     except A-10  (now dead),  A-11 and A-12 are
from the  same family of Jodhey amd Raghubar and the list of
accused was  further inflated  by adding  relatives who even
did not     stay  in  the    village.  In  this  context  it     was
strenuously urged  before us  that the    investigating agency
had widened  the net  at the instance of P.W.1 to involve as
many accused  as possible.  This argument  against does     not
detain us  for any  longer because  the evidence  of two eye
witnesses was  found to be acceptable and trustworthy and we
do not    see any     scope to  give even any benefit of doubt to
any one     of these accused persons for the offences for which
they have been convicted.
(23) At this  stage we    deem it     necessary to  refer to     the
defence evidence.  A-1 examined     Sher Ali (D.W.1) to support
his plea  of alibi. Sher Ali (D.W.1) stated that A-1 used to
stay in     the orchard situated in between Mekhnapar and limra
which is away from the place of occurrence. This evidence in
our considered    view does not on prepondrance of probability
establish the plea of alibi. In this view of the matter this
evidence was  rightly not accepted by the courts below. A-11
and A-12  also pleaded alibi and in support thereof examined
Maniram Verma (D.W.2) and Surendra Pal (D.W.3) who were then
working as  clerks in  Krishak College    Gola. They testified
that during  1987-88  children    of  both  the  accused    were
studying in  the  said    college.  A-11    and  A-12  in  their
statements recorded  under Section  313     Cr.  P.C.  gave  an
explanation  that  at  the  time  of  occurrence  they    were
residing  at   Village    Gola   where  their   children    were
schooling. Sri    Ram (D.W.4)  who was  the teacher at village
Piperva stated    that  Bajarkha    village     is  situated  at  a
distance of  one km.  but admitted  that he was not teaching
the children  of A-11  and A-12.  We have gone through their
evidence and  we are  satisfied that their evidence does not
prove the  plea of  alibi set  up by  both the    accused.  It
cannot be  assumed that     merely because     the  children    were
studying at  village Gola, the parents were also residing at
that village.  Except this  evidence to     prove the  plea  of
alibi no  other evidence  was led on behalf of these accused
persons. We  are afraid     that this  evidence even on test of
probability can     prove the plea of alibi set up by A-1, A-11
and A-12.  Both the  courts  below  committed  no  error  in
rejecting the plea of alibi set up by A-1, A-11 and A-12.
(24) Coming to    the question  of sentence  we have heard the
learned     counsel   for    the  parties  at  great     length     and
considered the    facts and  circumstances of  the  case    very
carefully; the    manner in which the incident took place; the
role played  by each of the accused and most importantly the
extreme brutality  with which  the members  of the  unlawful
assembly  acted.   The    question,  therefore,  is  does     the
conscience of an ordinary human being not shocked to see the
extreme brutality  and disregard  to the  human dignity?  As
indicated earlier A-1, A-2, A-4, A-5, A-6, A-8 and A-13 have
been awarded  death penalty  by the  High Court. Of these we
will take  the case of Rajendra (A-6) first. The trial court
awarded him the life imprisonment whereas in an appeal filed
by the    State the  High Court  enhanced the sentence of life
imprisonment to death. The reason given by the High Court is
that some of the accused persons who have been awarded death
sentence formed     one group  which must    include A-6  who had
played    an  identical  role  and,  therefor,  there  was  no
justification to  award this  accused lesser  sentence. With
respect we  are unable    to agree  with the  reasoning of the
High Court as regards the death sentence awarded to A-6. The
role attributed     to Rajendra  as  stated  by  both  the     eye
witnesses was  that he    fired from his gun which hit Sandeep
whereupon  he    fell  down.  Thereafter     Prakash  (A-8)     and
Ravinder (A-5) threw him into the smouldering fire. No other
role was  attributed to     A-6 as far as Sandeep is concerned.
Dr. S.K.  Tewari (P.W.9)  who performed     the autopsy  on the
dead body  of Sandeep could not find any pellet in his body.
The prosecution     also could not collect the evidence to show
that any  pellet was recovered from the ashes. The dead body
of Sandeep  was totally charred and, therefore, doctor could
not find  any injury  on his  dead  body.  It  is  in  these
circumstances  A-6  could  not    be  bracketed  with  accused
persons who  have been    awarded death  sentence. A-6, in our
considered view     is entitled to a differential treatment for
want of     conclusive evidence  that he  had caused  fire     arm
injuries to Sandeep. We must make it clear that this finding
by itself  would not absolve A-6 from his culpability in the
present crime  with the     aid of     Section 149  IPC as regards
other  murders.      His  presence      was  proved  beyond  every
reasonable doubt  at the time of occurrence. He was a member
of an unlawful assembly having a common object to commit the
murders in question and in prosecution thereof used his fire
arm along  with other accused who were armed with fire arms.
In view     of these proved facts we are of the considered view
that the  death sentence  awarded to  Rajendra (A-6) was not
proper and  instead he    must fall in the group comprising of
accused/appellants who    used the  fire arms  and  have    been
awarded life  imprisonment. We accordingly convert the death
sentence awarded  to Rajendra  (A-6) to     a life imprisonment
without upsetting  his convictions  on this  count  as    also
convictions and sentences on other counts.
(25)  The   next   important   question      that     needs     our
consideration is  whether the  death sentence awarded to the
six accused  persons, namely, A-1, A-2, A-4, A-5, A-8 and A-
13 is in accordance with law and the guidelines laid by this
court. The  earliest decision rendered by the Constitutional
bench of  this Court  is in Bachan Singh Vs. State of Punjab
(1980) 2 SCC 684 this Court observed that in a case of death
sentence the  facts and     circumstances must indicate that it
is a rarest of the rare case where extreme penalty is called
for. The court must pay due regard both to the crime and the
criminals. What     is the     relevant weight  to be given to the
aggravating and     mitigating factors  depends upon  the facts
and circumstances  of the  particular case.  The Court    then
observed: “More     often than  not, these     two aspects  are so
intertwined  that   it    is  difficult  to  give     a  separate
treatment to  each of them. This is so because `style is the
man’. In  many cases,  the extremely cruel or beastly manner
of the    commission of  murder is itself a demonstrated index
of the    depraved character  of the perpetrator. That is why,
it is  not desirable  to consider  the circumstances  of the
crime and  the circumstances of the criminal in two separate
water-tight compartments. In a sense, to kill is to be cruel
and, therefore,     all murders are cruel. But such cruelty may
vary in     its degree  of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that
“special reasons”  can legitimately be said to exist”. “Life
imprisonment is     the rule and death sentence an exception. A
real and  abiding concern  for the  dignity  of     human    life
postulates  resistance     to  taking  a    life  through  law’s
instrumentality. That ought not to be done save in he rarest
of rare     cases when the alternative option is unquestionably
foreclosed”. This  Court has  culled out  certain mitigating
circumstances to be considered at the time of exercising the
discretion while awarding the extreme penalty.
(26) The next  two decisions  on the topic of death sentence
are (i) Machhi Singh and Others vs. State of Punjab (1983) 3
SCC 470     (ii) Allauddin     Mian and  Others vs. State of Bihar
(1989) 3  SCC 5.  We have  very carefully gone through these
decisions. In the light of these decisions we may now advert
to the question of sentence.
(27) Mr. A.K. Ganguli, Learned Senior Counsel contended that
life imprisonment  is the  rule and  death  sentence  is  an
exception. There  is no reason to deviate from this rule. He
relied upon the above decisions of this Court on this topic.
He urged  that the  High Court had committed a serious error
while accepting     reference and confirming the death sentence
awarded to  A-1, A-2, A-4 and A-13 and further enhancing the
sentence of A-5, A-6 and A-8 from life imprisonment to death
sentence to  each one  of them.     He  urged  that  there     are
several mitigating  circumstances which militate against the
death sentence    awarded to  these accused and, therefore, it
would be  appropriate to  award life  imprisonment to  these
accused persons.  The Learned  counsel then  pointed out the
mitigating circumstances:  (i) Chandrika, the brother of A-1
was murdered  by Sheo  Pal and Ram Gulam who belonged to the
party of  Sukhdarshan (since deceased); (ii) it was a brutal
murder wherein Chandrika’s head was severed: (iii) no common
object could  be attributed  to     the  unlawful    assembly  to
commit the  murders in    question; (iv)    the deceased persons
and other  family members failed to disclose the whereabouts
of Sheo     Pal and  Ram Gulam  which caused  grave and  sudden
provocation and     by reason  of such provocation the incident
in question  might have     happened; (v)    six accused  persons
belonging to  one family  have ben  sentenced to death; (vi)
the sentence  of death    awarded to six accused persons would
be a  serious calamity    on the surviving members of the said
family; (vii)  all these condemned prisoners belonged to the
age group  of 20  and 35 years except A-1, A-2 who were aged
about  45   and     40   years  respectively  at  the  time  of
occurrence; (viii)  they  do  not  belong  to  the  type  of
hardened  criminals   and,  therefore,     they    deserve      an
opportunity to reform themselves in their future life. While
supporting the    death sentence    of six    above named  accused
persons, learned  counsel for  the State  urged that none of
these  circumstances   could  be  considered  as  mitigating
circumstances  to   commute  the   death  sentence  to    life
imprisonment in     facts and  circumstances of  this case.  He
enumerated the    circumstances warranting  an extreme penalty
and they  are (i)  after finding that Ram Gulam and Sheo Pal
were not hiding in the house of P.W.1, the unlawful assembly
formed by  the accused    persons ought to have left the scene
of occurrence;    (i)  in     Chandrika’s  murder,  none  of     the
deceased was  involved; (iii)  there was no provocation from
the side  of deceased; (iv) the manner in which four persons
were done  to death was most brutal, heneous, ghastly and in
total disregard     to the     human dignity; (v) was murders were
pre-planned; (vi)  the modus operandi was well thought of in
advance; (vii) of five four murders were committed in a most
barbaric manner.  Three heads  were severed  and an innocent
boy of    ten years  was roasted alive in the smouldring fire;
(viii) victory    procession with     three heads raising slogans
“Shyam Manohar Zindabad” etc. etc., and thereafter they went
towards the  house of  Chandrika; (ix) impact of terror upon
the minds of surviving members of the family of the deceased
persons;  (x)  motive  coupled    with  vengence    and  revenge
against innocent persons to satisfy the ego.
(28)  We   have     already   analysed  the   evidence  of     the
prosecution as    well as     the  defence.    Look  at  the  modus
operandi adopted  by  the  accused  persons  who  formed  an
unlawful assembly  and its  common object  was not  only  to
commit the  murders of    Sheo Pal  and Ram Gulam but also the
commit the  mass murders  of family  members of     Sukhdarshan
(since deceased) as they were under the belief that Sheo Pal
and Ram Gulam were hiding and taking shelter in the house or
Sukhdarshan. The  accused persons  first fired    at  Kamlesh,
injured him  and thereafter opened the door and searched for
Ram Gulam and Sheo Pal. Kamlesh was immobilised by causing a
gun shot  injury. Sukhdarshan  (since deceased)     came out of
his room. He was fired at on a non-vital part by immbolizing
him and     thereafter the     accused persons  assaulted him with
Banka; A-2, A-4 and A-13 held him facilitating A-1 to severe
his head.  The accused did not stop there but thereafter the
accused persons     assaulted him with Banka; A-2, A-4 and A-13
held him  facilitating A-1  to severe  his head. The accused
did not stop there but thereafter they fired at Surendra and
assaulted him  by Bankas.  A-2, A-4  and A-13 caught hold of
him and     A-1 severed  his head.     Sandeep a  young boy  of 10
years when  came out  of the room which was then set on fire
was bodily  lifted by and A-5 and A-8 who threw him into the
smouldering fire.  He was  roasted alive.  Bhuwaneshwari who
was returning from the market was fired at and was given the
same cruel  treatment by  severing his head. This only shows
that they  were thirsty     to severe  the heads from the alive
but injured bodies in order to take revenge of the murder of
Chandrika. All    the three heads were put together in a piece
of cloth  and a     victory procession was taken out by accused
giving slogans “Shyam Manohar Zindabad; Nandlal and Premgiri
Zindabad etc.,    etc.”, and  then they  went to    the house of
Chandrika. A Simple question which requires to be considered
is as to whether the conscience of a society was not shocked
to see    such ghastly and burtal murders? The accused persons
had shown  scant regard     for the  human dignity. Upon taking
overall view  of the circumstances in the light of the ratio
laid down  by this  Court in  the  aforesaid  judgments     and
taking into  account the  manner  of  commission  of  crime,
motive for  commission of  crime and criminals, magnitude of
the crime  and little  regard for  the human  dignity and in
particular a young boy of 10 years.
(29)  Now   let     us  draw  a  final  balance  sheet  of     the
aggravating and     mitigating circumstances  after giving     due
consideration to the rival contentions putforth before us as
regards six  condemned prisoners.  In  our  considered    view
justification clearly  leans in     favour of death sentence to
each  of   the    six   condemned      prisoners.   Totality      of
circumstances outweighted  the mitigating  circumstances  as
pointed out by Mr. Ganguli. Sentence of life imprisonment to
these six accused persons would be totally inadequate in the
facts and  circumstances of  this case.     The proved facts of
this  case  unmistakably  indicate  that  the  present    case
squarely falls    within the  ambit of  “rarest of rare” case.
Five  murders    were  committed      in  an  extremely  brutal,
grosteque, diabolical,    revolting or  dastardly manner which
would  arouse    intense     and   extreme    indignation  of     the
community. Award  of lesser  punishment to these six accused
persons would  disintegrate the     rule of  law upon which the
edific of our civilized society stands.
(30) Having regard  to the  facts and  circumstances of this
case we     are of     the considered view that the High Court had
committed no error whatsoever in awarding the death sentence
to A-1,     A-2, A-4, A-5, A-8 and A-13. None of the mitigating
circumstances placed  before us     could persuade     us to apply
the normal  rule of  life imprisonment    in respect  of these
accused persons.  It is in these circumstances we are of the
considered view     that Criminal    Appeal Nos.  715-716 of 1997
filed by Sheo Ram (A-2) and Harish (a-4) as well as Criminal
appeal Nos.  717-720 of     1997 filed  by Shyam Manohar (A-1),
Suresh (A-13),    Prakash (A-8) and Ravindra (A-5) are without
any merit  and they  are consequently  dismissed. The  death
sentence awarded  to each  of  these  accused/appellants  is
upheld. We,  however confirm the convictions of Rajendra (A-
6) under  Section 302/149  IPC and  also  as  regards  other
offences  but    we  convert   his  death  sentence  to    life
imprisonment, subject  to this    modification of sentence his
appeal to  stand dismissed.  Criminal Appeal  Nos. 721-24 of
1997 filed  by Ram Pal Verma (A-24), Sankata (A-22), Mathura
Prasad (A-21),    Dorey (A-23)  and Lalla (A-3) are dismissed.
Criminal Appeal     No.725 of  1997 filed by Rakesh Giri (A-11)
and Rajesh  Giri (A-12)     to stand dismissed. Criminal Appeal
No. 593     of 1997  filed by  Sriram (A-14),  Rajaram  (A-15),
Rampal (A-16),    Itwari (A-17),    Dhakan (A-18) and Srikrishna
(A-19) to  stand dismissed. If any of the accused/appellants
is on  bail shall  surrender to     his bail  bond forthwith to
serve out the remaining part of his sentence.