Holding

The Court held that the evidence was reliable, Section 149 does not extend liability to Accused Nos. 3‑6 for the infant murders, the death penalty was not justified due to procedural lapses and lack of ‘rarest of rare’ circumstances, and therefore the death sentences were commuted to life imprisonment and the convictions under Section 326/149 were set aside.

Summary

The appellants, six members of an unlawful assembly, were convicted for the murder of two infant girls while attempting to kill the father, Baharan Mian. The trial court sentenced the two principal assailants (Accused Nos. 1 and 2) to death and the others to life imprisonment, later altering some convictions under Section 326/149. The Supreme Court held that the prosecution evidence was reliable, but the killings of the infants were not within the common object of the assembly, so Section 149 could not be invoked against Accused Nos. 3‑6. It also found that the trial court failed to comply with the mandatory hearing and ‘special reasons’ requirements of Section 235(2) and Section 354(3) CrPC, making the death penalty unjustified. Consequently, the death sentences were commuted to life imprisonment and the convictions under Section 326/149 for Accused Nos. 3‑6 were set aside, while other convictions were upheld.

Issues considered

The reliability of the prosecution evidence.
Whether Section 149 IPC applies to Accused Nos. 3‑6 for the murders of the infant girls.
Whether the procedural requirements of Section 235(2) CrPC and the ‘special reasons’ clause of Section 354(3) CrPC were complied with in imposing death sentences.
Whether the death penalty in this case violates Articles 14, 19 and 21 of the Constitution.
Whether the conviction under Section 326/149 IPC for Accused Nos. 3‑6 should be upheld.
The applicability of the ‘rarest of rare’ doctrine to the death penalty.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
Indian Penal Code, 1860s. 141, s. 142, s. 143, s. 144, s. 145, s. 146, s. 147, s. 148, s. 149, s. 302, s. 326, s. 447, s. 452

Subjects

unlawful assemblySection 149 IPCdeath penaltysentencing guidelinesrarest of rare doctrinenatural justiceSection 235 CrPCSection 354(3) CrPCmurdervicarious liabilityprocedural fairness

Judgment

ALLAUDDIN MIAN & ORS. SHARIF MIAN & ANR.
v.
STATE OF BIHAR

APRIL 13, 1989

B [S. NATARAJAN AND A.M. AHMADI, JJ.]

Criminal Procedure Code, 1973: Section 235 and section
354(3)-Sentence-Decision-Sentencing court to approach questiou
seriously-Endeavour to see that all relevant facts and circumstances
bearing on sentence brought on record-Sentence of severity imposed-
Jmperative for Judge to indicate basis-'Special reason clause' in death
sentence cases indicates obligation to explain choice of sentence.

Indian Penal Code, 1860: Sections 34, 141, 149--Unlawful
assembly-Fastening of vicarious responsibility on a member-Pro-
secution to prove act was done in prosecution of common object of
.D assembly.

Accused Nos. I to 6, constituting an unlawful a,,.embly the com-
mon intention of which was to kill Baharan Mian, came to his house
armed with deadly weapons. Baharan Mian, apprehending trouble, ran _,.
inside fo arm himself but his wife prevented him from coming out again.
E At that time, Baharan Mian's two infant daughters, Sahana Kbatoon

•
M
aged about seven years and Chand Tara aged about seven months, were
playing in .the 'dalan' of his house. Failing in their object to kill
Baharan Mi~n, accused No. 1 gave farsa blows on the head, abdomen
~

and left thumb of Sahana Khatoon causing serious injuries, and
"
:t
accused No. 2 gave one farsa blow on the head of infant Chand Tara. As
F a result of these injuries, Sahana Khatoon died the same day while
Chand Tara died after 28 days.

' Accused Nos. 1 and 2 were charged under sections 302, 452 and , ---.....
I 148 I.P.C., whereas accused Nos. 3 to 6 were sought to be held vica-
.~
riously liable under section 302/149 I.P.C. Accused Nos. 3 and 4 were
i further charged under sections 447 and 148, I.P.C. and accused Nos. 5
G
& 6 were charged under sections 447 and 147, I.P.C. The Trial Court ,,._
convicted accused Nos. l and 2 on all the three counts and awarded the
t sentence of death to both of them for the commission of the offence
i, punishable under section 302, I.P.C. Accused Nos. 3 and 4 were con-
victed under sections 302/149, 447 and 148, I.P.C. and for the offence
l-I under section 302/149, each of'them was directed to suffer imprison-
498
i
'
ALLA UDDIN v. STATE OF BIHAR 499
v •ment for life. Accused Nos. 5 and 6 were convicted under sections
302/149, 447 and 147, I.P.C. For the offence under sections 302/149,
A
I.P.C., they were sentenced to undergo imprisonment for life.

The High Court dismissed the appeal of accused Nos. 1 and 2 and,
while accepting the reference,. confirmed the sentence of death a· .. uded
to them for the murder of the two infant girls. The conviction of the B
~ remaining four accused under section 302/149 was, however, altered to·
r sections 326/149 and the sentence of imprisonment for life given to each
.,of them was substituted by a sentence of rigorous imprisonment for

·- seven years. Their co11victions and sentences on the other counts were,
however, maintained.,·

Before this Court it was contended on behalf of the appellants that c
(1) the evidence adduced by the prosecution was not reliable; (2) Even
on the facts found proved by the courts below, accused Nos. 1 to 6 could
not be held guilty of murder with the aid of section 149, I.P.C. as the
killings of the. two girls was outside the common object of the unlawful
assembly; (3) the facts of the case did not warrant a death penalty in the D
case of accused Nos. 1 and 2, more so because the procedural require-
ment of section 235(2) of the Cr. P .C. was not followed in letter and
spirit; and (4) section 302, I.P.C., and section 354(3), Cr.P.C., insofar
as they permit the imposition of the death penalty were violative of
Articles 14, 19 and 21 of the Constitution oflndia.
E
While partly allowing the appeals by converting the sentence of
- death in the case of accused nos. l and 2 to imprisonment for life under
section 302, I.P.C., and setting aside the conviction of accused nos. 3 to
6 under section 326/149 I.P.C., the Court,

HELD: (l) There is no substance in the contention that the pro- F
secution evidence is unreliable and .should not be acted upon for .. con-
firming the conviction of the accused persons. [508B-C]

(2) If the prosecution did n~t examine some persons who were
admittedly present at .the . scene of occurrence, on . learning that
they were won over, it cannot be said that the prosecution was un- G
fair to the accused persons. The non-examination of these persons
cannot affect the probative value of the evidence of other prosecution e
w;itnesses. [508F] · · ..

·'<!< · (3) .Section 149,. I.P.C., creates, a specific ,offence. Since this
• • '~-
..
se.ction imposes a constructive. penal liability, it .must be. strictly con-. H
strued. l509Gf · '' · .
.. .
&!._ ''r,,-" ,
500 SUPREME COURT REPORTS [1989] 2 S.C.R.

A
(4) It is not the intention of the legislature in enacting section 149
to render every member of an unlawful assembly liable to punishment
for every offence committed by one or more of its members. In order to
"
invoke section 149 it must be shown that the incriminating act was done
to accomplish the common object of the unlawful assembly. Even if an
act incidental to the common object is committed to accomplish the
B common object of the unlawful assembly, it must be within the I--
knowledge of other members as one likely to be committed in prosecu-
tion of the common object. If the members of the assembly knew or · ,.
were aware of the likeihood of a particular offence being committed in.
prosecution of the common object they would be liable for the same
under section 149, I.P.C. [SIOF-H]
c (5) What is important in each case is to find out ifthe offence was
committed to accomplish the common object of the assembly or was one
which the members knew to be likely to be committed. There must
be a nexus between the common object and the offence committed,
and if it is found that the same was committed to accomplish the
b common object, every member of the assembly will become liable
for the same. [509H; SIOA-BJ

(6) In the instant case, the common object of the unlawful
assembly, as alleged in the charge, was to kill Baharan Mian. When
accused Nos. I and 2 realised that Baharan Mian was beyond their
I' reach, they, frustrated at their failure to accomplish their mission,
wielded their weapons on .the innocent girls, which was no part of the
common object of the unlawful assembly. For accomplishing their com-
mon object it was not necessary to kill the two girls who were not a
hinderance to accused Nos. 1 and 2 accomplishing their common object.
Accused Nos. 3 to 6 cannot, therefore, be convicted for the injuries
F caused to the two minor girls by accused Nos. I and 2, with the aid of
·•' section 149. [SllA-B]

(7) Section 302, I.P.C, casts a heavy duty on the Court to choose
between death and imprisonment for life. When the Court is called
upon to choose between the convict's cry 'I want to live' and the proa
G secutor's demand 'he deserves to die', it goes without saying that the
' Court must show a high degree of concern and sensitiveness in the
choice of sentence. [SllD-E]

(8) In our justice delivery system several difficult decisions are
left to the presiding officer, sometimes without providing the scales or
H the weights for the same. In cases of murder, however, since the choice
ALLAUDDIN v. STAIB OF BIHAR 501

is between capital P.unishment and life imprisonment, the legislature A
has provided a guideline in the form of sub-section (3) ohection 354 of
the Code of Criininal Procedure, 1973. l511E-F]

(9) When th~ law casts a duty on the Judge to state reasons it
follows that he is under a legal obligation to e.xplain his choice of the
B
• se·n.tence. It may seem trite to say so but the existence of the 'special
~ reason clause' in the above provision implies that the Court can in
fii cases impoSe the extreme penalty of death which negatives the con-
tention that there never can be a valid reason to visit an offender
} with the death penalty. no matter how cruel, gruesome or shocking
• the crime may be. [512A-C]
,.) . .
c
( 10) Where a sentence of severity is imposed, it is imperative that
! the· Judge should indicate the basis upon which he .considers a sentence
of that magnitude justified. Unless there are special reasons, special to
the facts of the particnlar case, which can be catalogued as justifying a
severe .punishment, the Judge would not award the death sentence. If a
Judge finds that he is unable to explain with reasonable accuracy the D
basis for selecting the .higher of the two sentences, his choice should fall
on the lower sentence. [5120-E]

(ll) The choice of the sentence has to be made after following the
procedure set out in sub-section (2) of section 235 of the Code. Since the
provision is intended to give the accused an opportunity to place before E
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 stric;tly followed. [5130, H; 514A]

(12) The requirement of hearing the accused is intended to satisfy
the rule of natural justice. In the case of life or death, the presiding F
officer must show a high degree of concern for the statutory right of the
accused and should not treat it as a mere formality to be crossed before
making the choice of the sentence, If the choice is made without giving
the accused an effective and real opportunity to place his antecedents,
social and economic background, mitigating and extenuating circum- G
stances, etc. before the Court, the Court's decision on the sentence ·
would be vulnerable. [514C]

( 13) A sentencing decision taken without following the require-
ments of sub-section (2) of section 235 of the Code in letter and spirit
may have to be replaced by an appropriate order. In the instant case,
the Trial Court actually treated it as a mere formality as is evident from
H
502 SUPREME COURT REPORTS [1989] 2.S.C.R.

the fact that it recorded the finding of guilt on 31st March, 1987, and on
A
the same day before the accused could absorb and overcome the >hook
of conviction they were asked if they had anything to s•v on the·";., ;;on
of sentence. Immediately thereafter the decision imposing the death
penalty on the two accused was pronounced. [514B, El

B (14) As a general rule, the Trial Courts shonld after recording the
conviction adjourn the matter to a future date and call upon both the
prosecution as well as the defence to place the relevant material bearing
on the question of sentence before it and thereafter pronounce the se.n·
tence to be imposed on the offender. [514F-G] ·

(15) In the instant case, the Trial Court did not attach sufficient'
c importance to the mandatory requirement of sub-section (2) of section
235 of the Code. The High Court also had before it only the scanty
material placed before the Sessions Judge when it confirmed the death
penalty. Absence of particulars of antcedents of accused, their socio
economic conditions, the impact of their crime on the community, etc.
D makes the choice of punishment difficult. [514G-H]

( 16) It is necessary that the maximum sentence prescribed by law
should be reserved for 'the rarest of rare' cases which are of an excep-
tional nature. Sentences of severity are imposed ti' reflect the serious-

E
ness of the crime, to promote respect for the law, to provide just punish-
ment for the offence, to afford adequate deterrent to criminal conduct
....
and to protect the community from further similar conduct. [515G]

( 17) In the instant ·~ase, unfortunately the material for choice of
sentence is scanty. The motive for the crime is obscure, the one stated,
namely, the quarrel between two. infants of both sides, does not seem to
F be correct. The killings were not for gain. The change shows that the
target was Baharan Mi an, the father, and not. the two infants. The
killing of the two infants was not in the contemplation of any of the
accused. Both the girls were the victims of the offenders' ire resulting
from frustration at the escape of their target. There is nothing so un-
common about the crime as to make the case an exceptional one. The
G mere fact that infants are killed, without more, is not sufficient to bring
the case within the category of 'the rarest of rare' cases. [516C-E]

Bachan Singh v. State of Punjab, [1980] 2 SCC 684; and Machhi
Singh v. State of Punjab, [1983] 3 SCC 470, referred to •
. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 343 and 446 of 1988. ·
ALLAUDDJN v. STATE OF BIHAR [AHMADI, J.) 503

From the Judgment and Order dated 8.4.1988 of the Patna High
A
Court in Cr!. A. No. 140 of .1987 and Death Ref. No. 3 of 1987 and
Cr!. A. No. 136 of 1987.

R.K. Garg, Salman Khurshid, Rakesh Luthra, Irshad Ahmad,
Vinayak D. Phadke, Mrs. Bimla Sinha and Gopal Singh for the
Appellants. B

"°" A. Sharan, D. Goburdhan, D.N. Goburdhan and B.B. Singh for
the Respondent.

The Judgment of the Court was delivered by

AHMADI, J, The appellants in these two appeals by special
c
/ ··leave are the six accused persons who were arraigned before .the
learned Third Additional Sessions Judge, Siwan, for trial. Criminal
Appeal No. 343 of 1988 is by original accused Nos. 1, 2, 3 and 5
(Allauddin Mian, Keyamuddin Mian, Saheb Hussain and Afzal Miao)
and Criminal Appeal No. 466 of 1988.is by original accused Nos. 4 and D
6 (Sarif Mian and Mainuddin Mian). For the·sake of convenience we
will refer to them by their original positions in the Trial Court.

Accused Nos. 1 and 2 were charged with the commission of
offences punishable under Sections 302, 452 and 148, l.P.C. The pro-
secution case was that accused Nos. 1 and 2 along with accused Nos. 3 E.
to 6 constituted an unlawful assembly, the common object of which
was to kill PW 6 Baharan Mian and in pursuance of the said object
accused No. 1 caJ.1Sed the death of Sahana Khatoon aged about seven
years and acC<1Sed No. 2 caused the· death of Chand Tara aged about
seven months. Accused Nos. 1 and 2 were substantively charged under
Section 302, I.P.C., whereas accused Nos. 3 to 6 were sought td•be F
held vicariously liable under Section 302/149, I.P:C. Accused Nos. 3
and 4 were further charged under Sections 447 and 148, I.P.C!, and
accused Nos: 5 and 6 were charged under Sections 447 and 147, I.P:C.
The Trial Court convicted accused Nos. 1 and 2 on all the three counts
and awarded the sentence of death to both of them for the commission
of ilie offence 'punishable under. Se.ction 302, 1.P.C. Each of them was G
also sentenced to suffer rigorous imprisonment for one year on each
count under Sections 148 and•452, 1.P.C. The substantive sentences
were directed to run concurrently. Accused Nos. 3 and 4 were con-
victed under Sections 302/149, ·447 and 148, IPC and for the offence
under Section 302/149 each of them was directed to suffer imprison-
ment for life. For the offences under Sections 148 and 447, I.P.C., th7y H
504 SUPREME COURT REPORTS [1989] 2 S.C.R.
I\
),
A were directed to suffer rigorous imprisonments for one year and three
months, respectively. The. substantive sentences were ordered to run
concurrently. Accussed Nos. 5 and 6 were convicted under Sections
302/149, 447 and 147, l.P.C. For the offence under Section 302/149,
LP .C., they were sentenced to undergo imprisonment for life whereas
for the offences punishable under Sections 447 and 147, l.P.C., they
B were directed to suffer rigorous imprisonments for three months and
~-
six months, respectively. The substantive sentences were ordered to
run concurrently. Since accused Nos. 1 and 2 were awarded the death
penalty a reference was made to the High Court which came to be
~
.
J_ -
~v
numbered as Reference No. 3 of 1987. Accused Nos. 1, 2, 3 and 5 ,.."
preferred an appeal, Criminal Appeal No. 140 of 1987, challengin.g t
their convictions and sentences awarded to them by the Trial Court.
c Accused Nos. 4 and 6 preferred a separate appeal, Criminal Appeal
No. 136 of 1987, against their convictions and sentences. by the Trial (
Court. The said reference and both the appeals were disposed of by ~
the High Court by a common judgment. The High Court dismissed the
appeal insofar as accused Nos. 1 and 2 are concerned and, while
D accepting the reference, confirmed the sentence of death awarded to
them for the murder of two the infant girls. The conviction of the
remaining four accused under Section 302/149 was, however, altered
to Section 326/149 and the sentence of imprisonment for life given to
each of them was substituted by a sentence of rigorous imprisonment :"
for seven years. Their convictions and sentences on the other counts
E were, however, maintained. Feeling aggrieved by the convictions and
sentences awarded to them on different counts all the six accused
persons have preferred the present two appeals by special leave. .. c

Briefly stated the prosecution case is that on the afternoon of
25th July, 1985 around 4.30 p.m. when PW 6 Baharan Mian was sitting
F at the entrance of his house, the aforesaid six accused persons came
from the west armed with deadly weapons; accused Nos. 1 and 2 were
carrying 'farsas', accused Nos. 3 and 4 were armed with spears (bhalas)
and accused Nos. 5 and 6 were armed with sticks (Lathis). On seeing
them PW 6 got up and went to the 'osra' (verandah) of his house.
Accused No. 3 began to untie the buffalo tethered in front of the house
G while the other accused persons showered abuses on PW 6, to which
the latter objeCted. Thereupon, accused Nos. 4 and 6 shouted 'Sale ko
jan se mar do'. Immediately thereafter, accused Nos. 1 and 2 moved
menacingly towards PW 6. The two ·infants Sahana Khatoon and
Chand Tara were then playing in the 'dalan' outside the western room.
On seeing accused Nos. 1 and 2 approaching him duly armed with
iH farsas PW 6 apprehended tronhle and ran into the adjoining room to
ALLAUDDIN.v. STATE OF BIHAR [AHMADI, J.] 505

'( arm himself with a spear. His wife, PW 5 LailaKhatun, who was in the
A
room, however, prevented him from going out for fear that he may be
done to death by the accused persons. Realising that PW 6 has entered
the inner room and was prevented by his wife from coming out,
accused No. 1 gave farsa blows on the head, abdomen ancj left thumb
of Sahana Khatoon causing serious injuries. Accused No. 2 gave·one
~ farsa blow on the head of infant Chand Tara. The neighbours PW 2 Fu! B
' ; Mohammad Mian, PW 3 Ali Asgar, PW 4 Vidya Giri and others,
~ namely, Jalaluddin Ahmad, _Sadik Mian, Ram Chandra Prasad,
Bhikhari Mian, etc. intervened, pacified the assailants and sent them
away. After the assailants had left the scene of occurrence the two
injured girls were removed to the city dispensary where the First Infor-
mation Report of PW 6 was recorded at about 6.45 p.m. Unfor-
·tunately, Sahana Khatoon died shortly after she was admitted to the c
T dispensary. Her younger sister Chand Tara succumbed to her injuries
on 23rd August, 1985. Immediately after the .two injured were
removed to 'the dispensary for treatment, PW 7 Dr. Haliwant Singh
· who examined Sahana Khatoon noted that. she ha~ a sharp cutting
injury on the anterior half of the head causing a fracture of cranial D
bone with the brain substance protruding out, a sharp cutting injury on
the left illiao fossa and a sharp cutting injury on the left thumb and left
index finger. PW 1 Dr. Anil Kumar Verma, the Senior Assistant Sur-
~ geon in Siwan Sadar Hospital, performed the autopsy on the dead
body of Sahana Khatoon on the afternoon of 26th July, 1985. Since the
fact that Sahana Khatoon died a homicidal death is not in dispute, we E
need not set out the findings recorded by PW 1 in his postmortem
report. Suffice it to say that in the opinion of PW 1 death was due to
shock and haemorrhage resulting from the injuries caused to the vic-
tim with the farsa .
.J
The injured Chand Tara was examined on the same day by PW 7. F
He had noticed. a sharp cutting injury on the anterior half of the head
slightly to the right of the mid-line with the brain matter coming out
~from the posterior half. She was admitted as an indoor patient but was
discharged on 13th August, 1985. A few days later she died on 23rd
August, 1985. PW 10 Dr. Ahmad performed the autopsy on the dead
body of Chand Tara and he found that she had an infected ulcer 3" x G
·~ 1-1/4" by cranial cavity deep communicated with brain on .the anterio-
frontal portion of the head, On dissection the meninges and the brain
matter were found to be congested. In his view, the meningitis and
encephalitis which had resulted due to infection resulting from the
in jury caused by a sharp cutting weapon like a farsa were the cause of
death. It is evident from the above evidence that Chand Tara also died H
a homicidal death.
506 SUPREME COURT REPORTS [1989] 2 S.C.R.
~·
The finding that both the girls died a homicidal death is unassail-
A
able in view of the clear evidence of the aforesaid three medicalmen,
I namely, PW 1, PW 7, and PW 10. The question then is whether the
appellants are responsible for their deaths and if so, to what extent?
To bring home the guilt against the six accused persons, the prosecu-
tion examined five eye witnesses to the occurrence, namely, PWs 2 to
6. These five eye witnesses have unfolded the prosecution case that the ~-·
six accused persons had formed an unlawful assembly the common .
object whereof was to kill PW 6 Baharan Mian. In pursuance of that ""

c
common object they, duly armed with weapons such as farsas, bhalas
and lathis, entered the residential premises of PW 6 on the evening of
25th July, 1985 and committed the acts set out earlier. The courts
below found that the presence of PWs 5 and 6 in the house at that point
of time could not be doubted. In fact these accused persons had come ".
-
to the house to kill PW 6. PWs 2, 3 and 4 who can be said to be 1
dependable witnesses have also supported the prosecution case as nar-
rated by PWs 5 and 6. The evidence of these prosecution witnesses
stands further corroborated by the evidence of PW 7 who had seen the
D wounds on the two injured soon after the incident. PWs 1 and 10 who
performed the pqst-mortem examination on the dead bodies also lend
corroboration to the testimony of the eye witnesses. The courts below,
therefore, recorded the convictions relying on the evidence of the
aforesaid witnesses as set out earlier. In the backdrop of these facts, , .
the learned counsel for the accused made the following submissions:

-
E
1. The evidence adduced by the prosecution to brillg home the
guilt against the accused, particularly the evidence of PWs 2 to 6,
is not reliable and should not be acted upon.

2. Even on the facts found proved by the courts below, the four
F accused persons, namely, accused Nos. 3 to 6 cannot be held
guilty of murder with the, aid of Section 149, LP .C. as the killings
of the two girls was outside the common object of the unlawful
assembly ---- _
....

3. Even if the conviction of accused Nos. 1 and 2 for the murder
G of the two girls is confirmed, the facts of the case do not warrant
a death penalty, more so because the procedural requirement of
Section 235(2) of the Cr. P.C. was not followed in letter and
spirit, and

4. Section 302, I.P.C., and Section 354(3), Cr. P.C., insofar as
H they permit the imposition of the death penalty are violative of
ALLAUDDIN v. STATE OF BIHAR [AHMADI, J.) 507

Articles 14, 19 and 21 of the Constitution oflndia.

We will immediately proceed to deal with these contentions.
,
: ·, ..

The learned counsel Shri Garg took us through the evidence of
the five eye witnesses with a view to satisfying us that their version
~ regarding the incident was not free from blemish and it would be B
J. highly unsafe to place implicit reliance on their evidence. We have
carefully scrutinised the evidence of the aforesaid five eye witnesses
·and we are inclined to think that their evidence was correctly
appreciated by both the Courts below. The presence of PWs 5 and 6,
the parents of the two victim girls, in the house at that point of time
cannot be disputed. In fact, the accused persons had constituted an
unlawful assembly with a view to killing PW 6, the father of the two
c
girls. With that avowed object they went, duly armed with lethal
weapons, to launch an attack on PW 6. After accused No. 3 had untied
the bufallo notwithstanding the protest from PW 6, accused Nos. 4 and
6 gave the call to kill PW 6. Encouraged by this call accused Nos. 1 and
2 moved menacingly towards PW 6 who was then standing in 'osra'. D
Realising that accused nos. 1 and 2 were out to kill him, PW 6 went
inside the room to fetch a bhala to defend himself. His wife PW 5 who
was in the room sensing danger to his life stood in his way and did not
pem'lit him to go out and face accused Nos. 1 and 2: PWs 2, 3 and 4
who were neighbours saw the incident from close quarters when
accused Nos. 1and2 dealt fatal blows with their farsas to the two girls E
who were playing in the 'dalan'. PW 2 who;, the brother of PW 6 was
in the field to the east of the house and was, therefore, in a position to
see the incident. PW 3 was returning from the bazar when he saw the
accused persons at the door of PW 6. He heard the accused persons
uttering abuses and the call given by accused Nos. 4 and 6 to kill PW 6.
He also saw the accused persons entering the house and going towards
the room which PW. 6 had entered to fetch a bhala. In the end he saw
accused Nos. 1 and 2 inflicting farsa•blows on the two girls. He was
~ cross-examined at length but except for minor contradictions here and
. there which are only to be1expected when a witness gives evidence
after a lapse of time, noth\ng substantial shaking the substrat11m·of the
prosecution case has surfaced to discredit him. PW 4 was at"the saw G
mill of Ram Chandra Prasad when he saw the aceused persons coming
from the west and proceeding towards the east.•lie saw these persons
going to the house of PW 6 and heard them showering abuses. In his
cross-examination an attempt was made to show that he could not be
_present at Ram Chandra Prasad's'saw mill at that hours since he was a
Government Servant and admittedly' his normal duty hours were from H
508 SUPREME COURT REPORTS [1989] 2 S.C.R.

A 10 a.m. to 5 p.m. Further effort was to show that he was connected
with a case between Bhikhari Dass and Sita Ram Prasad pending
under Section 145, Cr. P.C. in respect of possession of some land. He
has also disowned knowledge of any dispute between Bhikhari Dass
and Mainuddin Mian in respect of another parcel o( land. He was
cross-examined at length to prove that he was an interested and a
B biased witness. Even if the evidence of this witness is ignored, there is
sufficient evidence on record to support the findings recorded by both
the courts below. We are, therefore, of the opinion that there is no -~
substance in the contention of the learned counsel for the accused that
the prosecution evidence is not reliable and should not be acted upon
for confirming the conviction of the accused persons.
c It was. next submitted by learned counsel for the accused that
some of the prosecution witnesses, namely, Jallaluddin, Bhikhari
Mian and Ram Chandra Prasad who were admittedly present at the
scene of occurrence according to the prosecution and had witnessed
the entire incident were deliberately dropped with a view to suppres-
D sing the truth. We cannot accept this contention for the simple reason
that apart from both PW 5 and PW 6 having deposed that they were
pressurised by the defence the High Court has found in paragraph 36
of its judgment that efforts were made by the defence to scare away the
witnessess from giving evidence. There is ample material on record to
conclude that considerable pressure was exerted on the prosecution
E witnesses to stay away from the witness box. Some succumbed to the
threats and pressure while some others did not and displayed oourage
to give evidence and state the truth. In this backdrop, if the prosecu- •
. tion did not examine Jallaluddin, Ram Chandra Prasad and Bhikhari
Mian on learning that they were won over it cannot be said that the
prosecution was unfair to the accused persons. Mr. Garg submitted
F that there was nothing to show that the accused persons were in any
way guilty of pressurising or threatening the witnesses. That is besides
the point. What is relevant is the fact it so happened. Therefore, the
non-examination of the aforesaid witnesses cannot affect the probative
value of the evidence of other prosecution witnesses. ·

G We now proceed to consider whether accused Nos. 3 to 6 have
been rightly convicted with the aid of Section 149 for the acts of
accused Nos. 1and2. Section 141, I.P.C., defines an unlawful assem-
bly as an assembly of five or more persons whose common object is to
commit any one of the five acts enumerated therein. The explanation
to .that section makes it clear that an assembly which was not unlawful
H when it assembled, may subsequently become an unlawful assembly.
/ ALLAUDDIN -v;1STA1E OF BIHAR !AHMADI, J.) 509

Section. 142 .states: whoever, being aware of facts which render any
A
assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a inember of an unlawful assembly. Section
143 sets out the punishment for being a member of an unlawful assem-
bly. Section .144 prescribes the punishment for joining an unlawful
·assembly armed with deadly weapons. Section 145 prescribes the
punishment for joining or continuing in an unlawful assembly which .B
has been commanded to disperse. Section 146 defines rioting. It says
-k· that whenever force or violence is used by an unlawful assembly, or by
any memb_er thereof, in prosecution of the common object of such
assembly, every member of such assembly is guilty of the offence of
rioting. Section 147 then prescribes the punishment for rioting .. Section
148 prescribes the punishment for rioting by members of an unlawfully
assembly armed with deadly weapons. Then comes Section 149 which c
reads as under: ·

"If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to D
be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of that
offence."

Therefore, in order to fasten vicarious resp"l'sibility on any memb~r E
of an unlawful assembly the prosecution must prove that the act con-
stituting an offence was done in prosecution of the common object of
that assembly or the act done is such as the members of that assembly
knew to be likely to be committed in prosecution of the common
i object of that assembly. Under this section, therefore, every member ,·
of an unlawful assembly renders himself liable for the criminal act or F I
1
acts of any other member or members of that assembly provided the
same is/are done in prosecution of the common object or is/are such as
every member of that ·assembly knew to be "likely to be committed.
This section creates a specific offence and makes every member of the
unlawful assembly liable for the offence or offences committed in the
course of the occurrence provided the same was/were committed in G
prosecution of the common object or was/were such as the members of
that assembly knew to be likely to be committed. Since this section
imposes a constructive penal liability, it must be strictly construed as it
seeks to punish members of an unlawful assembly for the offence or
offences committed by their associate or associates in carrying out the
common object of the assembly. What is important in each case is to H
,·.

510 SUPREME COURT REPORTS [1989] 2 S.C.R.
'y
A find out if the offence was committed to accomplish the common ob-
ject of the assembly or was one which .the members knew to be-likely
to be committed. There must be a nexus between the common object
and the offence committed and if it is found that the same was commit-
ted to accomplish the common object every member of the assembly
will become liable for the same. Therefore. any offence committed by
B a member of an unlawful assembly in prosecution of anyone or more of
the five objects mentioned in Section 141 will render his companies
constituting the unlawful assembly liable (or that offence with the aid -i<-
of Section 149, I.P.C. In the present case, the common object of the
unlawful assembly as alleged in the charge was to kill PW 6 Baharan
Mian. To accomplish that objective accused Nos. 1 and 2 went after
PW 6. Sensing danger PW .6 ran into the adjoining room to fetch a
C spear to defend himself. His wife PW 5, however, blocked his way and
did not permit him to go out. When accused Nos. 1 and 2 realised that '(
PW 6 was beyond their reach, they, frustated at their failure to accom-
plish their mission, wielded their weapons on the innocent girls who·
were playing in the Dalan. The common object having thus been
D frustrated, accused Nos. 1 and 2 took out their wrath on the innocent
girls which was no part of the common object of the unlawful assem-
bly. It was not necessary to kill these girls to accomplish their object of
killing PW 6 as these two girls had not prevented them from reaching
PW 6. The learned counsel for the accused, therefore, rightly submit- -/
ted that while accused Nos. 1and2 can be punished for their individual
E acts committed after the common object stood frustrated and
abandoned on PW 6 placing himself beyond their reach, the other
members of the unlawful assembly could not be punished for the acts
of accused Nos. 1 and 2 as the killing of the girls was no part of the
common object of the assembly. Once PW 6-"ias beyond the reach of
his two tormenters, the common object to kill him stood frustrated and
p whatever the individual members did thereafter could not be said to
have been done in prosecution of the common object of the assembly.
It is not the intention of the legislature in enacting Section 149 to
render every member of an unlawful assembly liable to punishment for
every offence committed by one or more .of its members. In order to
invoke Section 149 it must be shown that the incriminating act was
G done to accomplish the common object. of the unlawful assembly.
Even if an act incidental to the common 'object is committed to accom- "t-
plish the common object of the unlawful assembly it must be within the
knowledge of other members as one likely to be committed in prosecu-
tion of the common object. If the members of the assembly knew or
were aware of the likelihood of a particular offence being committed
H in prosecution of the common object they would be liable for the same
ALLAUDDIN v. STATE OF BIHAR [AHMADI, J.I 511

under Section 149, I.l'.C. In the instant case, however, the members A
constituting the unlawful assembly had gone to the house of PW 6 to
kill him. That was the common object of the unlawful assembly. For
accomplishing that common object it was not necessary to kill the two
girls who were not an hinderance to accused Nos. 1 and 2 accomplish-
' ing their common object. We are, therefore, of the opinion that
--1 accused Nos. 3 to 6 cannot be convicted for the injuries caused to the B
...(-two minor girls by accused Nos. 1 and 2 with the aid of Section 1'19,
' I.P.C. We, therefore, set aside the conviction under Section 326/149,
I.P.C., and also the sentence imposed on accused Nos. 3 to 6 on that
count. We, however, hold accused Nos. 3 and 4 guilty under Sections
447 and 148, l.P.C., and confirm the sentences awarded to them on
those counts. So also we hold accused Nos. 5 and 6 guilty under Sec-
[ lions 447 and 147, IPC and confirm their sentences for the said
c
offences.

Having come to the conclusion that Allauddin Mian and
Keyambuddin Mian are guilty of murder, the next question is what
punishment should be awarded to them, namely, whether e.i;tinction of D
life or incarceration for life. Section 302, IPC casts a heavy duty on the
Court to choose between death and imprisonment for life. When the
Court is called upon to choose between the convicts cry 'I want to live'
and the prosecutor's demand 'he deserves to die' it goes without saying
that the Court must show a high degree of concern and sensitiveness in
the choice of sentence. In our justice delivery system several difficult E
decisions are left to the presiding officers, sometimes without provid-
ing the scales or the weights for the same. In cases of murder, how-
ever, since the choice is between capital punishment and life imprison-
ment the legislature has provided a guideline in the form of Sub-
_J.. section (3) of Section 354 of the Code of Criminal Procedure, 1973
("the Code") which reads as under: ·' F

"When the conviction for an offence is punishable with
--, death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
I
sentence of death, the special reasons for such sentence." G I
This provision makes it obligatory in cases of conviction for an offence
punishable with death or with imprisonment for life or for a term of
years to assign reasons in support of the sentence awarded to the
convict and further ordains that in case the Judge awards .the death
penalty, "special i:easons" for such sentence shall be stated in the H

/.
··Iii
512 SUPREME COURT REPORTS [1989] 2 S.C.R.

A judgment. When the law casts a duty on the Judge to state reasons it
follows that he is under a legal obligation to explain his choice of the
sentence. It may seem trite to say so, but the existence of the 'special
reasons clause' in the above provision implies that the Court can in fit
cases impose the extreme penalty of death which negatives the conten-
tion that there never can be a valid reason to visit an offender twith the
B death penalty, no matter how cruel, gruesome or shocking the crime
may be. Basing his submission on what is described as the humani-~')...
tarian ideology or the rehabilitarian philosophy, Mr. Garg submitted
that any law which permits the supreme right to life being sacrificed for
the failure of the State to establish a social order in which such crimes
are not committed must be struck down as offending Articles 14, 19
and 21 of the Constitution. While rejecting the demand of the pro-
c tagonist of the reformatory theory for the abolition of the death pen-
alty the legislature in its wisdom thought that the 'special reasons
clause' should be a sufficient safeguard against arbitrary imposition of
the extreme penalty. Where a sentence of severity is imposed, it is
imperative that the Judge should indicate the basis upon which he
D considers a sentence of that magnitude justified. Unless there are
special reasons, special to the facts of the particular case, which can be
catalogued as justifying a severe punishment the Judge would not
award the death sentence. It may be stated that if a Judge finds that he
is unable to explain with reasonable accuracy the basis for selecting the
higher of the two sentences his choice should fall on the lower sen-

-
E tence. In all such cases the law casts an obligation on the Judge to
make his choice after carefolly examining the pros and cons of each
case. It must at once be conceded that offenders of some particularly
grossly brutal crimes which send tremors in the community have to be
firmly dealt with to protect the community from the perpetrators of
such crimes. Where the incidence of a certain crime is rapidly growing
F and is assuming menacing proportions, for example, acid pouring or
bridge burning, it may be necessary for the Courts to award exemplary
punishments to protect the community and to deter others from com-
mitting such crimes. Since the legislature in its wisdom thought that in '
some rare cases it may still be necessary to impose the extreme punish-
ment of death to deter others and to protect the society and in a given
G case the country, it left the choice of sentence to the judiciary with the
rider that the Judge may visit the convict with the extreme punishment
provided there exist special reasons for so doing. In the face of this
statutory provision which is consistent with Article 21 of the Constitu-
tion which enjoins that the personal liberty or life of an individual shall
not be taken except according to the procedure established by law, we
H are unable to countenance counsel's extreme submission of death in no
ALLAUDDIN v. STATE OF BIHAR [AHMADI, J.] 513
'\( case. The submission that the death penalty violates Articles 14, 19
and 21 of the Constitution was negatived by this Court in Bachan Singh A
v. State of Punjab, [1980] 2 SCC 684. Mr. Garg, however, submitted
that the said decision needs re-consideration as the learned Judges
constituting the majority did not have the benefit of the views of
Bhagwati, J. who ruled to the contrary. We are not impressed by this
. ~ submission for the simple reason that the reasons which prevailed with B
- Bhagwati, J., could not have been unknown to the learned Judges
. .+rnnstituting the majoirty.

- Even a casual glance at the provisions of the Penal Code will
show that the punishments have been carefully graded corresponding
with the gravity of offences; in grave wrongs the punishments pre-
scribed are strict whereas for minor offences leniency is shown. Here C
again there is considerable room for manoeuvre because the choice of
the punishment is left to the discretion of the Judge with only the outer
limits stated. There are only afew cases where a minimum punishment
is prescribed. The question then is what procedure does the Judge
follow for determining the punishment to be imposed in each case to fit D
the crime? The choice has to be n1ade after followiilg the procedure set
out in sub-section (2) of Section 235 of the Code. That sub-section
reads as under:

''If the accused is convicted, the Judge shall, unless he
pi'oceeds in accordance with the provisions of Section 360, E
hear the accused on the question of sentence, and then pass
-• sentence on him according to law."

The requirement of hearing the accused is intended to satisfy the rule
, of natural· justice. It is a fundamental requirement of fairplay that the
·~ accused who was hitherto concentrating on the prosecution evidence F
on the question of guilt should, on being found guilty, be asked if he
has anything to say or any evidence to tender on the question of
_.,.-- .,sentence: This is all the more necessary since the Courts are generally
required to make the choice from a wide range of discretion in the
matter of sentencing. To assist the Court in determining the correct
sentence to be imposed the legislature introduced sub-section (2) to G
-_,,I Section 235. The said provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by according to the accused an
opportunity of being heard on the question of sentence and at the same
time helps the Court to choose the sentence to be awarded. 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 H
514 SUPREME COURT REPORTS [1989] 2 S.C.R.

question of sentence there can be no doubt that the provision is salu- V
A
tary and must be strictly followed. It is clearly mandatory and should
not be treated as a mere formality. Mr. Garg was, therefore, justified
in making a grievance that the Trial Court actually treated it as a mere
formality as is evident from the fact that it recorded the finding of guilt
on 3 lst March, 1987, on the same day before the accused could absorb
B and overcome the shock of conviction they were asked if they had
anything to say on the question of sentence and immediately thereafter
the decision imposing the death penalty on the two accused was pro-4
nounced. In a case of life or death as stated earlier, the presiding ·
officer must show a high degree of concern for the statutory right of
the accused and should not treat it as a mere formality to be crossed •
before making the choice of sentence. If the choice is made, as in this
c case, without giving the accused an effective and real opportunity to
place his antecedents, social and economic background, mitigat .:g and ~
extenuating circumstances, etc., before the Court, the Court's decision
on the senten~~ would be vulnerable. We need hardly niention that.in
many cases a sentencing decision has far more serious consequences on
D the offender and his family members than in the case of a purely
administrative decision; a fortiori, therefore, the principle of fairplay
must apply with greater vigour in the case of the former than the latter.
An administrative decision having civil consequences, if taken without
giving a hearing is generally struck down as violative of the rule of ,_..
natural justice. Likewise a sentencing decision taken without following
E the requirements of sub-section (2) of Section 235 of the Code in letter

-
and spirit would also meet a similar fate and may have to be replaced
by an appropriate order. The sentencing court must approach the
question seriously and must endeavour to see that all the relevant facts
and circumstances bearing on the question of sentence are brought on
record. Only after giving due weight to the mitigating as well as the
F aggravating circumstances placed before it, it must pronounce the
sentence. We think as a general rule the Trial Courts should after
recording the oonviction adjourn the matter to a future date and call
upon both the prosecution as well as the defence to place the relevant• •. --"---
material bearing on the question of sentence before it and thereafter
pronounce the sentence to be imposed on the offender. In the present
G case, as pointed out earlier, we are afraid that the learned Trial Judge
did not attach sufficient importance to the mandatory requirement of ..,._
sub-section (2) of Section 235 of the Code. The High Court also had
before it only the scanty material placed before the learned Sessions
Judge when it confirmed the death penalty.

H Apart from what we have said earlier, we may now proceed to
ALLAUDDIN v, STATE OF BIHAR.,[AHMADI, J,] 515

y" consider whether the imposition of death, penalty on the two accused_, A
persons found guilty of murder is justified. The Trial Court has .dealt
with the question of sentence in paragraphs 42 to 44 of its judgment.
The reason which weighed with the Trial Court is: it is one of the
gravest cases of extreme culpability in which two innocent and helpless
babies were butchered in a barbarous manner. After taking note of the
· mitigating circumstances that both the offenders were married young B
~.*.--', j men with children, the Trial Court found that since the murders were
, ...., committed without provocation and in cold blood there was no room
for leniency as the crime was so abhorrent that it shocked the con-
science of the court. The High Court while maintaining the conviction
of the said two accused persons proceeded to deal with the question of
sentence thus:
c
"The conviction of Allauddin Mian and Keyamuddin Mian
having been, upheld the question is whether the reference
should be accepted and the sentence of death against them
be upheld. In my view Allauddin Mian and Keyamuddin
Mian have shown extreme mental depravity in causing D
serious fatal injuries to helpless girls of the age of 7/8 years
and 7 months. In my view, th~refore, this murder can be
characterised as rarest of the rare cases. the extreme men-
tal depravity exhibited by Allauddin Mian and Keyamud-
din Mian impels me to uphold the sentence imposed on
Allauddin Mian and Xeyamuddin Mian by the learned E

- Additional Sessions Judge."

It will be seen from the above, that the courts below were consid-
erably moved by the fact that the victims were innocent and helpless
infants who had not provided any provocation for the ruthless manner
in which they were killed. No one can deny the fact that the murders F
were ghastly. However, in order that the sentences may be properly
graded to fit the degree of gravity of each case, it is necessary that the
maximum sentence prescribed by law should, as observed in Bachan
Singh's case (supra), be reserved for 'the rarest of rare' cases which are
of an exceptional nature .. Sentences of severity are imposed to reflect
the seriousness of the crime, to promote respect for the law, to provide G
.. ..,; , just punishment for the offence, to afford ·adequate deterrent.to cri-
minal conduct and to protect the community from further similar
conduct. It serves a three-fold purpose (i) punitive (ii) deterrent, and
(iii) protective. That is why this Court in Bachan Singh's case observed.
that when the question of choice of sentence is .under consideration the
Court must not only look to the crime and the victim but also the H

}'C -
516 SUPREME COURT REPORTS [1989] 2 S.C.R.

ci;cumstances of the criminal and the impact of the crime on the . ·Y
A
community. Unless the nature of the crime and the circumstances of
the offender reveal that the criminal is a menace to the society and the
sentence of life imprisonment would be altogether inadequate, the
Court should ordinarily impose the lessor punishment and not the
extreme punishment of death which should be reserved for exceptional
B cases only. In the subsequent decision of Machhi Singh v. State of ~-
Punjab, [1983.] 3 SCC 470 this Court, after culling out the guidelines \. ~.·
laid down in Bachan Singh's case, observed that only in those excep· ..... I~,.
tional cases in which the crime is so brutal, diabolical and revolting as
to shock the collective conscience of the community, would it be
permissible to award the death sentence. In the present case, unfortu·
nately the material for choice of sentence is scanty. The motive for the
c crime is obscure, the one stated, namely, the quarrel between two
infants of both sides, does not seem to be correct. The killings were
not for gain. The charge shows that the target was PW 6, the father,
and not the two infants. The killing of the two infants was not in the
contemplation of any of the accused. Both the girls were the victims of
D the offenders' ire resulting from frustration at the escape of their
target. There is nothing so uncommon about the crime as to make the
case an exceptional one. The mere fact that infants are killed, without
more, is not sufficient to bring the case within the category of 'the
rarest of rare' cases.

E In Bachan Singh's case the question of laying down standards for·
categorising cases in which the death penalty could be imposed was
considered and it was felt that it would be desirable to indicate the
broad guidelines consistent with section 354(3) of the Code without
attempting to formulate rigid standards. That was because it was felt
-
that standardisation of the sentencing process would leave little room
F for ju<;licial discretion to take account of variations in culpability even
withim the same category of cases. After referring to the aggravating
circumstances (Para· 202) and the mitigating circumstances (Pfara 206)
pointed out by counsel, the Court observed that while 'these were
relevant factors it would not be desirable to fetter judicial discretion.
It pointed out that these factors were not exhaustive and cautioned:
G 'courts, aided by broad illustrative guidelines indicated by us, will
discharge the onerous function with evermore scrupulous care and
human concern' consistent with Section 354(3) of the Code. In the
subsequent decision in Machhi Singh's case, tbe Court tried to indicate
the type of cases which may fall within the exceptional class without
attempting to introduce rigidity. It would not be fair to read the deci·
H sion as an attempt to fetter judicial discretion. Even in cases of the
ALLAUDDIN v. STATE OF BlHAR (AHMADI, J.J 517

type indicated in that case, circumstances may vary, which would A
necessitate a different approach. For example, the circumstances of
this case show that the offenders had killed the two girls not because of
any hatred for them or to accomplish their objective but out of frustra-
tion and anger at having lost their target. Unfortunately as the trial
Judge did not give time to the convicts to reflect on the question of
B
sentence, the chance, however remote, of the true motive for the
crime surfacing was lost. The antecedents of the accused, their socio-
economic conditions, the impact of their crime on the community etc.,
have not come on record. The absence of these particulars makes the

- choice of punishment difficult. In view of what we have observed
earlier and having regard to the circumstances in which the murders
took place, we think the extreme punishment of death is not c
warranted.

In the result both the appeals are partly allowed. The conviction
of accused Nos. 1 and 2 under all the heads is confinned but their
sentence of death for killing Shahna Khatoon and Chand Tara, respec-
D
tively, is converted to imprisonment for life. So far as accused Nos. 3
to 6 are concerned, their conviction and sentence under Section 326/
149, I.P.C. is set aside; however, their conviction and sentence under
the other heads is maintained. Their bail bonds will stand cancelled if
.:. they have already served out their sentences; otherwise they will sur-
render to their bail and serve out the remaining sentence. The appeals
will stand disposed of accordingly. E

- R.S.S. Appeals allowed part! y.

...