Holding

The Supreme Court reduced the death sentence of Shamshul Kanwar to life imprisonment, holding that the incident, though grave, does not fall within the "rarest of rare" category, and affirmed the conviction of the accused under Sections 302/149 IPC.

Summary

In Village Sakhni, Uttar Pradesh, a factional clash erupted during a funeral procession, resulting in the death of ten members of the prosecution party. The accused, led by Shamshul Kanwar, were found to have entered the scene armed and fired indiscriminately, constituting an unlawful assembly under Sections 302 and 149 of the IPC. The trial court sentenced six of the accused, including Kanwar, to death; the High Court reduced five of those death sentences to life imprisonment but upheld Kanwar's death sentence. On appeal, the Supreme Court held that the accused were indeed members of an unlawful assembly, but the case did not satisfy the "rarest of rare" criteria for death penalty, reducing Kanwar's sentence to life imprisonment while dismissing other appeals. The Court also clarified the limited evidentiary value of police general diary entries under Section 172 CrPC, rejecting the contention that their omission of names invalidated the police officer's testimony.

Issues considered

The applicability of Sections 302 and 149 IPC to the accused as members of an unlawful assembly.
Whether the death sentences imposed constitute the "rarest of rare" cases under the Bachan Singh guidelines.
The evidentiary status of police general diary entries under Section 172 CrPC and their impact on the credibility of the police officer's testimony.
Whether the lack of names of accused and witnesses in the general diary raises doubt about the officer's presence at the incident.
The appropriateness of reducing death sentences of the other accused.

Legislation cited

Arms Acts. 25
Code of Criminal Procedure, 1973s. 145, s. 161, s. 167(2a), s. 172, s. 235(2)
Indian Evidence Act, 1872s. 145, s. 161
Indian Penal Code, 1860s. 141, s. 142, s. 148, s. 149, s. 302, s. 307, s. 332

Subjects

unlawful assemblysection 149 IPCdeath penaltyrarest of rare doctrinepolice diarysection 172 CrPCfactional violencemurdersentencingevidence

Judgment

(

SHAMSHUL KANWAR A
v.

' STATE OF U.P.

MAY4, 1995

[M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.] B

Indian Penal Code 1860: S.302 read with S.149--Faction fighting with
1 deadly weapons resulting in death of ten persons-All deceased belonging to
-' prosecution party who had come to village for a burial-Held, accused party
were the aggressors; shared common object of unlawful assembly to kill mem- c
bers of the prosecuting party.

Code of Criminal Procedure: Ss.235(2), 366-l>eath sentence-Faction
fight invqlving atiack with rifles and deadly weapons resulting in death of ten
persons-High Cowt confirming death sen:ence awarded to leader of accused
p011y-Held: accused did not act in diabolical manner to bring the case within D
the meaning of 'rarest of rare' cases ; sentence commuted to life imprison-
ment.
I

Code of Criminal Procedure 1973 : S.177r-f'olice officer witnessing
rioting making notes in general diary about movements but not names of E
accused and witnesses-Whether absence of such details makes presence of
Police Officer and his version doubtful-Held, general diary was not case
diary within the meaning of S.172 and no details other than movements need
be mentioned; evidence of Police Officer corroborates evidence of other eye
witnesseHndian Evidence Act 1872, Ss.145, 161.
,, F
Village Sakhni, District Bulandshahr was faction ridden. Accused
SK led one faction and MH led the other. In the year 1981 one MB
belonging to the party of SK was murdered. In that case 12 persons
Including MH were tried and convicted. When they were out of jail they
were threatened by SK and his family.
G
MH's mother-in-law died in Delhi ten days prior to the occurrence of
February 1, 1989. In accordance with her last wish that she should be burled
in. her family graveyard, MH and others carried the dead body i11 a truck
to Sakbnl. The S.H.O. Jabanglrabad sent an escort comprising of an A.S.I.
and two armed constables. After reaching Sakhni, the 'janaza' (funeral) H
1197
1198 SUPREME COURT REPORTS (1995]3 S.C.R.

A was performed and they proceeded to the graveyard. Noticing that there
was tension in the village, the ASI talked to SK who told him that his
brother was killed by the other party and that he could not do anything. As ~
the body was being buried and the last earth poured, SK came there with
20 to 22 men armed with rifles, runs, farsas, knives, ballams and churies
etc. Seeing an additional police party approaching, SK, his younger brother
B RZ and their followers fired indiscriminately and assaulted the persons
gathered with their ballams and farsas. Ten persons were killed.

The trial court sentenced SK and RZ, and four associates to death.
It sentenced eleven others to imprisonment for life. The High Court while
C maintaining the death sentence awarded to SK, reduced the sentence
awarded to RZ and the four associates to life imprisonment. Two of the
accused were acquitted. The remaining accused and the State appealed.

The accused, inter alia, contended that the general diary maintained
by the ASI, the key prosecution witness, and produced in court as an
D exhibit, did not contain the names of the accused or witnesses and that
accordingly the presence of the ASI at the occurrence was itself doubtful.
Alternatively it was contended that the version of the eye witnesses was of
interested persons and should be rejected.

Partly allowing SK's appeal and dismissing the other appeals, this
E Court
HELD : 1.1. The ten persons who were killed admittedly belong to the
prosecution party participating in the funeral and many of them were from
Delhi. The accused party were the aggressors and indulged in indis·
criminate firing causing the death of so many people of the opposite party.
F There cannot be any doubt that they were the members of the unlawful
assembly and such of those whose presence as members of the unlawful
assembly is established cannot but be held guilty. (1222-B·E]

1..2 In an occurrence of this magnitude where several persons have
G participated it would not be possible for the witnesses to specify the part
played by each of them. It is clear from the facts and circumstances and
from the evidence t!>at snch of those accnsed who came to the scene of
occurrence armed with lethal weapons in a group and proceeded to par·
ticipate in the attack, shared the common object of the unlawful assembly
namely to attack and kill the members of the opposite party. Consequently
H they would be liable under Sections 302/149 I.P.C. (1222-H, 1223-A)
SHAMSHULKANWAR v. STATEOFU.P. 1199

Masalti and Ors. v. The State of Uttar Pradesh AIR (1965) SC 202 and A
Lalji and Others v. State of U.P., AIR (1989) SC 754, referred to.

2.1. The death sentence awarded to SK should be reduced to im-
prisonment for life. It is not established that the rifle shot tired SK alone
was responsible for causing the death of one of the deceased. SK did not
act in a cruel and diabolical manner so as to bring bis case within the B
meaning of 'rare.st of rare cases". The large number of deaths on one side
cannot ipso facto be a ground to bring the case into the category of 'rarest
of rare cases'. [1234-C, 1233-G-H, 1229-F]

2.2. The contention by the State that death sentence should be C
awarded to all the accused bas to be rejected. In the background of bitter
enmity infuriation was common to every member of the accused party who
were closely related to each other. Therefore they could have become
uncontrollable. Considering the facts and circnmstances of the case death
sentence s.hould not be awarded to these live accused at this distance of
time. [1230-H, 1234-B, 1232-E] D

, Bachan Singh v. State of Punjab, [1980] 2 SCC 684;Machhi Singh v.
State of Punjab, [1983] 3 SCC 470;Allaudin Mian v. State of Bihar, [1989]
3 SCC 5;Dennis Councle Mcgautha v. State of California, 402 US 183, 28 L
Ed 2d 111;Francis alias Ponnan v. State ofKerala, AIR (1974) SC 2281 and E
Bhoor Singh v. State of Punjab, AIR (1974) SC 1256, referred to.

3.1. The evidence of the ASI amply corroborates the evidence of the
other eye-witnesses whose presence at the scene of occurrence cannot be
doubted. [1221-G]
F
3.2. The general diary cannot be said to be an entry in case diary
within tl/e meaning of S.172 Cr.P.C. nor it is a statement recorded under
S.161 Cr.P.C. The ASI as an officer on duty made the entries in the diary
kept in the station which is also called general diary and different from
"case diary". [1221-F]
G
3.3. The diary contemplated under Section 172 Cr.P.C. can be of two
-• parts; the lirst one relating to the steps taken during the course of
investigation by the police officer with particular reference to time at which
the police received the information and the further steps taken during the
investigation like visiting the places etc. and the second part contains H
(' .
1200 SUPREME COURT REPORTS [1995] 3 S.C.R.

A statement of the circumstances ascertained during the investigation which
obviously relate to the statements recorded by the officer in terms of S.161
Cr.P.C. and other relevant materials gathered during the investigation.
The copies of the second part which mainly contains the statements of the
witnesses as a matter of course are. supplied to the accused persons. The
B diary referred to in s.172 and which the court may call for and which can
be used to the limited extent mentioned therein obviously refers to the first
part. [1218-C-D, 1219-D]

3.4. The entries in a police diary are neither substantive nor cor-
roborating evidence and they ~annot be used by or against any other
C witness than the police officer and can only be used to the limited extent
indicated above. Legislative change is necessary providing for framing of
appropriate and uniform regulations regarding the maintenance of the
diaries by the police for the purpose contemplated by S.172 Cr.P.C.
[1213-B, 1220-D]
D Queen Empress v. Mannu, ILR Allahabad Vol. XIX 390; Dal Singh v.
King Emperor, AIR (1917) P.C. 25; Pulukuri Kottaya v. King Emperor, AIR
(1947) PC 61;Niranjan Singh v. State of Uttar Pradesh, AIR (1957) SC 142;
Habeeb Mohammad v. The State of Hyderabad, [1954] SCR 475; Khatri and
Others (IV) v. State of Bihar and Others, [1981] 2 SCC 493; Mukund Lal v. '
Union of India, AIR (1989) SC 144 and State of Bihar v. P.P. Shanna, [1992]
E Supp. lSCC 222, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
887 of 1994 Etc.

From the Judgment and Order dated 20.8.1994 of the Allahabad
F High Court in Cd.A.No. 1492 of 1992.
Rajendra Singh, U.R. Lalit, S.B. Sanyal, Govind Mukhoty, Dr. N.M.
Gbtate, Ms. Lata Krishnamurthy, Dhirendra, S.U. Lalit, M.C. Dbingra,
Raju Ramachandran, Ejaz Maqbool, Mankad D. Adbkar, Pramod Swarup,
G AS. Pundir, R.C. Verma, Ashok Mathur, K.C.M. Khan, Shiv Pujan Singh,
N.K. Upadbyay, Rao Ranjit, R.D. Upadbyay, Ms. Abba R. Sharma, V.P.S.
Fauzdar, Spl. Prosecutor for the appearing parties.

The Judgment of the Court was delivered by

H K. JAYACHANDRA REDDY, J, A rioting of grave nature took place
(

SHAMSHULKANWARv. SI'ATEOFU.P. [K JAYACHANDRA REDDY,J.] 1201

in Village Sakhni within the limits of Police StationJahangir~bad in District A
Bulandshahr at about 3.30 P.M. on 1.2.89 in the course of which 11 people
died and some others were .injured including a police constable who was
on bandobust duty. In respect of this occurrence 21 _accused were tried for
offences punishable under Sections 148, 302/149, 307/149 and 332/149
I.P.C. and Section 25 of the Arms Act. The trial court acquitted A-9 Asgar,
B
A-19 Munna Baboo, A-20 Jarrar and A-21 Israr and convicted the remain-
ing accused. Out of them six were sente1iced to death and the rest to
imprisonment for life and also· for shorter terms of imprisonment for the
other offences. The convicted accused preferred appeals to the High Court
and the trial Judge also made a reference for confirmation of death
sentence. The State also filed two appeals one being against the. acquittal c
of the four accused and the other appeal was for enhancemept of sentence
of imprisonment of life of the 11 accused to death. The· High Court
acquitted A-3 Vilayat Hussain and A-18 Ali and confirmed the death
sentence of A-1 Shamshul Kanwar but reduced the sentence of death in
respect of other five accused to one of imprisonment. for life. With this
D
modification all the appeals filed by the accused as well as the State were
I disposed of by a common judgment. In this Court, as against the said
judgment, A-1 Shamshul Kanwar has filed Criminal Appeal No. 887/94,
A-JO Rais has filed Criminal Appeal No. 888/94 and A-2 Rashidul Zafar
and other convicted accused have preferred Criminal Appeal Nos. 889-
891/94. Criminal Appeal Nos. 270-275/95 are filed by the State again for E
enhancement of the sentence of imprisonment of life to death and also
against acquittal of six accused. Since these appeals arise out of a common
judgment of the High Court, the same can be disposed of together by us.

Village Sakhni was faction-ridden. A-1 Shamshul Kanwar was, at the F
relevant time, the Pradhan of the Village and he led one.faction and the
other faction was led by P.W. 4 Mohd. Hussain and others. In the year
1981 one Mirja Badar belonging to the party of A-1 was murdered. In that
case 12 persons including P.Ws. 1, 2 and 4 were tried in -a long-drawn trial
and were convicted. They remained in jail during the trial and also after
.• ... conviction except Kalin Beg alias Kalina who was granted bail on some G
compassionate ground. They filed an appeal in the High Court and also
1
sought bail. In the first instance the bail was refused and later they were
.granted bail. When they were out of jail they were"threatened by A-1 and
members of his family. They were not allowed to enter the boundaries of
the Village. Therefore P.W. 4 and others left the Village and began to live H
1202 SUPREME COURT REPORTS [1995) 3 S.C.R.

A at Delhi. P.W. 4's mother-in-law, an old lady, alongwith her husband went
to Delhi to the residence of P.W. 4, 10 or 12 days prior to the present
occurrence. She was suffering from some mental trouble and also severe
asthama. She died on the intervening night of 31.1.89 and 1.2.89 at about
9.30 P.M. Before her death she expressed her last wish that her body during
B the 'janaza' (funeral) should be buried in her family grave-yard in the very
Village Sakhni. In accordance with her wish P.W. 4, his father, P.W. 1,
P.W.2 and others about eight persons alongwith women-folk carried the
dead body in a truck and started to Village Sakhni at about 6 A.M. on
1.2.89. They reached Village Dariyapur on the way at about 8 A.M. P.W.
4 reached the residence of his friend namely Pradhar. of Village Dariyapur
C and took the help of four persons who also followed the party armed with
their licenced guns and the party reached Bulandshahr where P.W. 4 and
his father met the Labour Minister who was camping there and requested
him to provide police assistance as they were apprehending danger to their
lives at the hands of A-1 and others. The Minister addressed a letter to the
D S.H.O, Jahangirabad Police Station. They left Bulandshahr at about 10
A.M. with the truck and reached Jahangirabad Police Station at about 11
A.M. and met the S.H.O. and handed over the letter of the Minister
alongwith an application seeking police help. The S.H.O. sent an escort
comprising of an A.SJ., P.W.20 and two armed constables. All of them left
E Jahangirabad which is about four kms. away and reached Village Sakhni
at about 11.30 A.M. and stopped the truck outside the house of the dead
old lady. The dead body was taken inside and the 'janaza' (funeral) was
prepared according to the rites and from the Village they went to the
grave-yard. The ten deceased persons namely Munnawar Hussain s/o Kallu
F Beg, Kallu Beg s/o Waqar Ali, Mohd. Ali s/o Avej Ali, Ashgar s/o Bulaki
Hussain, Munnawar Hussain s/o Haji Mohd., Azad Ali s/o Barakat Ali,
Jmdad Hussain s/o Farkat Hussain, Shabir Hussain s/o Haji Mohd.,
Shakuat Ali s/o Kale hussain and Farkat Ali s/o Mohd. Hussain were also
among them and they participated in the funeral. P.W. 20, A.SJ. who
escorted them having noticed that there was tension in the Village, by way
G of abundant caution, went to Shamshul Kanwar, Pradhan (A-1) and had a
talk with him. It appears that A-1 told him that his brother was killed by
the other party and that he cannot do anything. P.W. 20, however, asked
him to understand the situation and returned to the place of funeral. He /Iii.,
felt that the tension has become more serious and that the police force with
H him was not sufficient and he asked one of the persons gathered there to
(

SHAMSHULKANWARv. STATEOFU.P. (K.JAYACHANDRA REDDY,J.( 1203

inform the Police Station on telephone from Village Alipur to send more A
·1 force at the grave-yard. The people who had come from Delhi and
Dariyapur and some people of the Village alongwith the police force were
.there. The dead body was buried according to the customs and when the
people were pouring the last earth, A-1 came there with 20 to 22 men
armed with rifles, runs, farsas, knives, ballams and chhuries etc. and
B
blocked the area. It is alleged thatA-1 said that he would give them lesson
for entering the Village to bury the dead body. Thereupon his younger
brother Rashidul Zafar alias Chotta, A-2 exhorted that they have plenty of
arms and nobody could go safe. Seeing the seriousness of the situation,
AS.I., P.W. 20 asked again P.W. 4 to send one man immediately to Village
Alipur to phone to the Police Station for addition.al force. In the meantime c
the additional police party was seen coming from the side of Jahangirabad.
Just then A-1 and A-2 fired with their rifles towards the gathering near the
grave-yard and their followers also fired. With the firing of A-1 and A-2
two persons, Shabir Hussain, deceased no. 1 and his younger brother
Munnawar Hussain, deceased no. 2, fell down. Meanwhile people ran D
helter skelter for saving their lives but the accused went on firing indis-
I
criminately as a result of which deceased no. 3 to deceased no. 8 received
injuries and fell down. Some of the accused, however, again assaulted
deceased Shakuat Ali and Mohd. Ali with the ballams and farsas. P.W. 3
also was assulted by the accused Nisar s/o Saklain, Bhura and Jarrar with E
ballams and farsas. Thereupon AS.I., P.W. 20 challenged the accused who
started firing at the police who after giving a warning fired 4 or 5 rounds
and one of the persons Razi in the ac"\lsed party received an injury and
fell down on the road. He was, however, carried by his associates. The
police party managed to surround four of the accused namely Nisar s/o
. Saklain, Nisar alias Baddu s/o Mohd. Hussain, Balloo and Masita alias F
Ranjha and took them into custody alongwith their respective blood-
stained weapons. At the place of occurren~e it was found that out of the
persons who participated in the funera~ Master Shabir Hussain, his brother
Munnawar Hussain, Imdad Hussain, Munnawar Hussain s/o Kalloo Beg,
Kalloo Beg, Shaukat Ali, Mohd. Ali, Farkat Ali and Ashgar Abid (9 G
persons) had already died. Azad Ali, Mohd. Taqi and Firdos Ali were in
injured condition and one police constable also was found with an injury.

' The Village people and the relations of the injured carried them from the
place of occurrence for treatment. Out of them Azad Ali, deceased no. 10,
died later in the hospital. It is also alleged that four persons who were H

•
1204 SUPREME COURT REPORTS [1995) 3 S.C.R.
A brought from Dariyapur were confined by the accused near the Sheesham
tree and all their guns also were taken away. Razi, one of the persons of
the accused party died later. P.W. 4, however, scribed the earliest report,
went to the Police Station accompanied by six persons at about 5.30 P.M.
and submitted the report. The case was registered and the investigation
commenced. Inspector, P.W. 8, reached the scene of occurrence at about
B 7 P.M. and took the four accused into custody. P.W. 8 seized the weapons
that were recovered and also the empty cartridges at the scene of occur-
rence and prep.ared the necessary panchnamas and sent all the dead bodies
for post-mortem.

C The Doctors, P.Ws. 9, 10, 11 and 13 conducted the post-mortems on
the dead bodies and they found fire-arm injuries on many of the deceased
persons and also incised injuries on some of them. The accused were
arrested on various dates and some weapons were recovered. After com-
pletion of the investigation the charge-sheet was laid. The prosecution in
D support of its case examined 32 witnesses and P.Ws. 1 to 4 -and 20 mainly
figured as eye- witnesses. Out of them P.Ws. 1 and 3 are injured witnesses.
P.W. 6, the Doctor, examined P.W. 1 on 6.2.89 and found one fire-arm
injury on the right leg. On being x-rayed a radio opaque shadow was also
found indicating that he received injury from a fire- arm. P.W. 6 also
examined P.W. 3 Mohd. Taqi and he found three wounds and injuries nos.
E . 2 and 3 were such which could have been caused by a fire-arm and x-ray
also confirmed the same.

All the accused;when examined under Section 313 Cr.P.C., denied
the incident and pleaded ignorance. They also stated that they were not
F aware about the death of the old lady or about the burial. In general they
stated that they were implicated because of enemity apart from individually
giving the particulars of hostility between them and the prosecution party.
The trial court accepted the evidence of the eye-witnesses alongwith the
evidence of P.W. 20. The trial court, however, acquitted A-9 on the ground
that he was aged about 82 years and that he had a cataract in the right eye
G and as seen in the court, he was very old and in a tottered condition and
that a doubt arose about his being a member of the unlawful assembly and
participating in the occurrence and accordingly he was given benefit of
doubt. The trial court acquitted A-19, A-20 and A-21 on the ground that
,.
. ~

while the witnesses alleged that they were armed with spears and used
H them, the Doctors did not find any injury which could have been caused
SHAMSHULKANWAR,.STAlEOFU.P.(KJAYACHANDRAREDDY,l.J 1205

by a spear on any of the injured persons and therefore their presence at A
the scene of occurrence was doubtful. The trial court sentenced A-1 and
A-2, who opened the fire, to death and A-11, A-15, A-16 and A-17 who
were arrested on the spot holding that A-1 and A-2 initiated the attack by
firing their rifles which hit deceased nos. 1 and 2 and that other fou~
accused persons who were arrested on the spot were armed with deadly B
weapons and inflicted injuries on Sabir Hussain, Shaukat.Ali and Mohd.
Ali, the deceased persons and thus took an active part and therefore they
deserve the extreme penalty. The trial court convicted the remaining 11
accused also under Sections 302/149 and for other offences but awarded
imprisonment for life. The High Court acquitted A-3 on the ground that
use of rifle by him was doubtful. The High Court also acquitted A-18 on C
· the ground that the overt act namely that he inflicted injuries with the knife
on the deceased Farakat Hussain, attributed to him becomes doubtful since
there is no corresponding injury which could have been caused by such a
weapon. The High Court, however, reduced the death sentence of A-2
holding that he being a younger brother followed the orders of A-1, his D
elder brother and at his instigation he used his rifle once and therefoie his
case stands on a different footing. The death sentence awarded to A-11, •
A-15, A-16 and A-17 who were arrested on the spot was also reduced to
imprisonment for life by the High Court holding that their case stands on
the same footing as that of other accused who also gave farsa blows to the
deceased Shabir Hussain but sentenced to imprisonment for life only and E
therefore a distinction cannot be made between these four and the others.
Regarding the case of A- 1, Shamshul Kanwar, the High Court took the
view that he was in a commanding position and he could have stopped the
entire massacre and that he behaved with least reasonableness and there-
fore the death sentence has to be maintained.
F
Shri Rajendra Singh, learned senior counsel appearing for A-1 sub-
mitted that all the eye-witnesses are interested and they have not come
forward with the real version and that there was only a fight between two
parties and as· to how it originated, the prosecution is silent and that no
independent witness has been examined. Learned counsel mainly relied on G
the general diary entry Ex.Ka-124 made by P.W. 20 and pointed.out that
the version mentioned therein is somewhat different and that none of the
particulars spoken to by P.W. 20 now are mentioned therein and therefore
the present version is a result of consultations and fabrications and it is
highly doubtful whether A-1 and other accused were present at the scene H
1206 SUPREME COURT REPORTS [1995) 3 S.C.R.

A of occurrence and the assailants, whoever they may be, must have acted in
their self- defence. Shri U .R. Lalit, learned senior counsel appearing for
A- 2, A-14, A-15 and A-16 submitted that P.Ws. 1 to 4 figured as accused
in the other case and were convicted and therefore they were all out to
implicate all their enemies and that there was delay in examining and
recording the statements of P.Ws. 1 and 3 and that P.W. 4's evidence
B bristles with discrepancies and improvements in material particulars and
that in a case like this an identification parade was absolutely necessary
but not held. He also pleaded that the case of A-2 is in no way different
from that of A-3 who was acquitted. Shri Raju Rarnachandran, learned
counsel appearing for the remaining appellants while adopting the argu-
e ments of the other two learned counsel, however, further contended that
it cannot be definitely said that all the accused were present at the scene
of occurrence only as members of the unlawful assembly and since the
occurrence has taken place in the Village itself it is quite possible that they
might have been there only as onlookers or by-standers and that mere
D attribution of overt acts to .them by the interested witnesses, in such as
sitnation, cannot be a safe test to fix their presence as members of the
unlawful assembly. Shri R.C. Verma, learned counsel appearing for the
State contended that this is a fit case where the appeals by the State should
be allowed having regard to the magnitude of the occurrence during which
as many as 10 persons belonging to the prosecution party were killed in a
E brutal manner and that acquittal of these accused should be set aside and
death sentence should be awarded to all of them.

Since it is a case of death sentence, we have heard all the learned
counsel at great length and we have been taken through the entire records.
Before we proceed to consider their submissions, we would like to briefly
F
refer to the evidence of the eye-witnesses which has been believed by both
the courts below and consider whether the so-called infirmities in their
evidence pointed out by the learned counsel are of any significance and
whether there are good grounds for interference as sought by the State?

G P.W. 4 is th.e main eye-witness in the case and he gave the F.I.R. In
his chief examination he was given the details of tile previous incident
including the earlier murder case and about the party factions in the
Village. He has also given all the details about their movements on the day
of occurrence and how they picked up four armed people at Dariyapur
H and how they enlisted the police help and further details regarding the
SHAMSHULKANWARv. STAIB OFU.P. [KJAYACHANDRAREDDY,J.] 1207

funeral. He mentioned the presence of P.W.l, P.W. 2, P.W. 3 and 10 A
f deceased persons being present at the time of funeral. Then coming to the
actual occurrence he deposed that after burial of the dead body they were
about to leave for their residences at about 3.30 P.M. and just then he saw
from the side of the temple A-1 and A-2 armed with rifles and several other
accused armed with guns and some of them also being armed with knives
B
and farsas near the temple. The accused came towards the west of the road
and A-1 exhorted saying that they will teach them a lesson for entering the
Village for burying the dead body. Thereupon his brother A-2 exhorted the
• other accused to ensure that none of their enemies in the prosecution party
should get away alive. P.W. 20, AS.I. was pacifying and as he sensed
danger he asked P.W. 4 to send some man to ring up the Police Station c
asking for more help. P.W. 4 thereupon sent one Sajjad. In the meantime
the additional police help consisting of two police parties having six con-
stables and 2 S.Is. were seen coming from near the temple. Having seen
the police parties, A-1 and A-2 again exhorted other accused saying that
they have enough of arms and they need not be afraid of anybody. P.W. 4 D
further deposed that A-1 and A-2 in the first instance fired simultaneously
at the prosecution party and they hit Shabir hussain, deceased no. 1 and
his younger brother Munnawar Hussain, deceased no. 2, who having
received the injuries fell down. At the same time Vilayat Hussain, A-3 and
Rais, A-10 fired at them and that_ the accuse_d also fired at the police party E
and there was a stampede. P.W. 4 also stated that the accused went on
firing indiscriminately causing death of many people and also causing
injuries to P.Ws. 1 and 3 as well as to one constable Kaushi Ram. He stated
that deceased nos. 3 to 8 fell down near the huts. Thereafter they were
again assaulted by Nisar alias Baddu, A-11, Munna Baboo A-19 and Israr,
F
A-21 with their ballams and Masita A-16 and Balloo A-17 with their knives.
Nisar A-15 and Bhoora A-13 caused injuries to P.W. 3 with Churri and
farsa and Jarrar A-20 with his ballam. Thereupon AS.I., P.W. 20 cha!-
lenged the accused and when the accused tried to fire against the police,
the police in turn fired about 4 or 5 rounds and Razi, one of the members
of the accused party, received injury and fell down near the road. There- G
upon the accused ran helter skelter and accused Razi also was carried away
by his associates. The police party however surrounded four accused i.e.

' A-11, A-15, A-16 and A-17 with theif weapons which blood-stained. There-
after P.W. 4 and one Gulbeg, P.W. 2 arrived at the place of occurrence
and found all the deceased lying and P .Ws. 1 and 3 also with injuries. They H
1208 SUPREME COURT REPORTS (1995] 3 S.C.R.

A were carried from the place of occurrence for treatment. Azad Ali,
deceased no. 10 whci was also injured was carried to the hospital but died
later. P.W. 4 scribed the F.I.R., Ka-6 at the factory of one Hyder Ali and
lodged the same in the Police Station at about 5.30 P.M. He was cross-ex-
amined at length and certain contradictions and omissions have been
B elicited. Both the courts below have considered them and have rightly held
that t!iey do not affect the veracity of his evidence. P.Ws. 1 and 3 also have
given more or less the same version. It may not be necessary for the
purpose of these appeals to discuss their evidence in detail once again in
view of the concurring findings.

C The main submission of the learned counsel is that they are inter-
ested witnesses inasmuch as admittedly they were accused in the earlier
case and there would be tendency on their part to implicate many accused
and that their evidence regarding the genesis of the occurrence is artificial
and at any rate they have not come out with the whole truth. It is in this
D context that the learned counsel strenuously contended that for quite some
time the accused did not do anything and according to the prosecution it
is only after the burial, the occurrence took place and there is no reason
whatsoever for the accused to indulge in indiscriminate firing at that stage
and that having regard to the tension prevailing and because of some
E provocative incident that took place there must have been a melee and
cross-firing between the police and the four armed men from Dariyapur
and some persons belonging to the accused party. Learned counsel also
contended that the F.I.R. is a result of consultations and fabrication and
in the absence of the evidence of any independent witness it would be
highly unsafe to place reliance on these partisan witnesses and there would
F have been many innocent by-standers and onlookers including some of the
accused and therefore it cannot be held that a specific case is made out
against these accused being members of the unlawful assembly with the
common object of committing the murder. It is in this context that the
learned counsel referred to the evidence of P.W. 20, A.S.L in the light of
G the entry in general diary Ka-124 and contended that there was no mention
of any of the details of occurrence in that exhibit and that shows that the
interested witnesses have later come forward with this fabricated and
exaggerated version implicating all the accused. It is appropriate at this
stage to consider the evidence of P.W. 20 and the submissions made by the
H learned counsel regarding the evidentiary value or otherwise of Ex.Ka- 124.
r
SHAMSHULKANWARv. SfATE OFU.P. (K.JAYACHANDRA REDDY,J.] 1209

P.W. 20 deposed that on 1.2.89 he was working as A.S.I., Jahan- A
girabad Police Station and at about 11 A.M., P.W. 4 came with two more
y persons and. met the S.I. Satbir Singh, P.W. 8 and asked for police force
for the cremation of his mother-in-law. On their .application P.W. 8
directed P.W. 8 to take two constables for the cremation""Of the dead body
in Village Sakhni. P.W. 20 took two constables and proceeded on his own
B
motor bike. He took his service revolver and cartridges and the two
constables took rifles and cartri_dges. On the way he noticed the truck
which was carrying the dead body alongwith 16 to 17 persons. They reached
the house of the dead lady and stayed outside the house. The persons and
'·• , women who came in the truck went inside the house. P.W. 20 noticed that
there was tension in the Village and learnt that it was due to enemity c
between the Pradhan of the Village Sharnshul Kanwar, A-1 and those
persons who came with the dead body. P.W. 20 posted his constables giving
some instructions and went to the house of A-1 and had a talk with him.
P.W. 20 deposed that A-1 told him that those persons had murdered his
brother and now they have come with the police and that he could no! do D
anything. Thereupon P.W. 20 asked A-1 to understand the situation and
came back to the house of the dead lady. After reaching the place he felt
that the tension was serious and that the force was not sufficient. He asked
one of the persons gathered there to telephone to the Police Station from
Village J alipur to send more force. Meanwhile the 'janaza' was ready and E
it.• was taken to the ancestral graveyard _of the Village at about 2.30 P.M.
by the people who had come from Delhi and some of the local people.
P.W. 20 and other constables as well as the four armed men from Village
Dariyapur were following the 'janaza', some of them in the front and some
of them in the back. The 'janaza' was brought to the ldgah of the graveyard
and some prayers were offered. Then the body was buried according to the
F
customs and those persons were pouring the last earth. Just at that time
A-1 came there with 20 to 22 men armed with guns, rifles, ballarns and
churries and they blocked the area form the side of the temple. A-1 said
that they would teach those persons a lesson for entering the Village to
bury the dead body. His younger brother A-2 said that they have plenty of G
arms and they were also inflqential. P.W. 20 tried to counselA-1. He also
asked P.W. 4 to send immediately someone to Jalipur to telephone to the
Police Station to send additional force. In the meantime obviously because
~ of the earlier telephone call additional force was seen coming. Just at that
juncture, according to P.W. 20, A-1 and A-2 fired with the rifles towards H
1210 SUPREME COURT REPORTS (1995] 3 S.C.R.

A the gathering at the grave-yard. Two persons received bullet injuries and
fell down. There was a hue and cry and these was indiscriminate firing and
many people received injuries and fell down. Some of the accused persons
came and inflicted injuries with the sharp-edged weapons on some of the
fallen men. P.W. 20 further deposed that the accused persons also stopped
B the police party. P.W. 20 gave a warning to the accused persons and
proceeded towards them and the accused persons started firing towards
them. P.W. 20 in self defence fired with his service revolver and also asked
the two constables to fire two rounds. During that firing one of the
members of the accused party Razi sustained injury and fell down. The
other accused persons began to retreat. P.W. 20 and other constables,
C however, managed to capture four accused with their blood-stained
weapons. P.W. 20 identified those persons in the court and also added that
all the rest of the accused also were present in the court and he has known
them since before he saw them on the day of occurrence. P.W. 20
proceeded to state that during the occurrence some of the constables also
D were injured. He arrested the four accused who were caught and later P.W.
8 came with force at about 7. P.M. to whom he handed over the four
accused persons and the recovered arms. He stayed for the night in the
Village itself. In the chief examination various panchnamas regarding the
seizures and other particulars of scene of occurrence were marked. Then
E P.W. 20 was cross-examined. Then Ex.Ka-124 is marked and further cross-
examination proceeded on the basis of its contents. Entry in the General
Diary marked as Ex.Ka-124 was written by P.W. 20 on 2.2.89 and it mainly
contains the details of his proceedings namely leaving the police station,
going to the scene of occurrence and the general outline of the occurrence
and the steps taken by him and his police party. P.W. 20 is cross-examined
F with reference to the contents and it has been pointed out by the defence
counsel that several details which P .W. 20 was giving in the court, have not
been noted. P.W. 20, however, asserted that it was not necessary to write
everything in the General Diary and what was written in the General Diary
was only a short narration of what he and his men did. Further cross
G examination proceeded and it was pointed out that no names of the
accused persons were mentioned nor the names of the witnesses nor other
details were mentioned. On the assumption that G.D. Entry Ex.Ka-124
should contain more 'details the main contention raised is that in the
absence of the same P.W. 20's presence itself should be doubted or in the
H alternative the present version given by the eye-witnesses who are inter-
SHAMSHULKANWARv. STATEOFU.P. IKJAYACHANDRA REDDY.J.) 1211

ested should be rejected. The question is whether this assumption' that the A
police officer should give all the details of the occurrence in the G.D. entry
like Ex.Ka-124 is correct. This warrants an examination of scope of Section
172 Cr.P.C. and also refer to some of the decisions on this aspect.

Section 172 Cr.P.C. reads as under:
B
"172. Diary of proceedings in investigation - (1) Every police officer
making an investigation Ujlder this chapter shall day by day enter
his proceedings in the investigation in a diary, setting forth the time
at which the information reached him, the time at which he began
' and cJosed the investigation, the place or places visited by him,
and a statement of the circumstances ascertained through his
c
investigation.

(2) Any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries, not
as evidence in the case, but to aid it in such inquiry or trial. D

~j) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the Court; but, if they are used by
the police officer who made them to refresh his memory, or if the
Court uses them for the purpose of contradicting such police E
officer, the provisions of sectio':' 161 or section 145, as the case
may be, of the Indian Evidence Act (1 of 1872) shall apply."

This Section firstly lays down that every police officer making an investiga-
tion should maintain a diary of his investigation. It is well-known that each F
State has its own police regulations or otherwise known as police standing
orders and some of them provide as to the manner in which such diaries
are to be maintained. These diaries are called case diaries or special
diaries. The Section itself indicates as to the nature of the entries that have
to be made and what is intended to be recorded is what the police officer
did, the places where he went and the places which he visited etc. and in G
general it should contain a statement of the circumstances ascertained
through his investigation. Sub-section (2) is to the effect that a criminal
- "' court may send for the diaries and may use them not as evidence but only
to aid in such inquiry or trial. The aid which the court can receive from
<
the entries in snch a diary usually is confined to utilising the information H
1212 SUPREME COURT REPORTS [1995] 3 S.C.R.

A given therein as foundation for questions to be put to the witnesses par-
ticularly the police witnesses and the court may, if necesSary, in its discre-
tion use the entries to contradict the police officer who made them. Coming
to their use by the accused, sub-section (3) clearly lays down that neither
the accused nor his agents shall be entitled to call for such diaries nor he
B or they may be entitled to see them merely because they are referred to by
the courts. But in case the police officer uses the entries to refresh his
memory or if the court uses them for the purpose of contradicting such
police officer then provisions of Section 161 or Section 145, as the case
may be, of the Evidence Act would apply. Section 145 of the Evidence Act
provides for cross-examination of a witness as to the previous statements •
C made by him in writmg or reduced into writing and if it is intended to
contradict him by the writing, his attention must be called to those parts
of it which are to be used for the purpose of contradiction. Section 161
deals with the adverse party's rights as to the production, inspection and
cross-examination when a document is used to refresh the memory of the
D witness. It can therefore be seen that the right of accused to cross-examine
the police officer with reference to the entries in the General Diary is very
much limited in extent and even that limited scope arises only when the
court uses the entries to contradict the police officer or when the police
officer uses it for refreshing his memory and that again is subject to the
E limitations of Sections 145 and 161 of the Evidence Act and for that limited
purpose only the accused in the discretion of the court may be permitted
· to peruse the particular entry and in case if the court does not use such
entries for the purpose of contradicting the police officer or if the police
officer does not use th~ same for refreshing his memory, then the question
of accused getting any right to use the entries even to that limited extent
F does not arise. The accused person is not entitled to require a police officer
to refresh his memory during his examination in court by referring to the
diary. At the most the accused can on a reasonable basis seek the court to
look into the diary and do the needful within the limits of Section 172
Cr.P.C. However, the court is not bound to compel the police witness to
G look at the diary in order to refresh his memory nor the accused is entitle
to insist that he should do so. If there is such a refusal what inference
should be drawn depends on the facts and circumstances of each case.
Section 172 does not deal with any recording of statements made by
witnesses and what is intended to be recorded is what the police officer
H did namely the places where he went, the people he visited and what he
(

SHAMSHUL KANWARv. STATE OFU.P. [K.JAYACHANDRAREDDY,J.] 1213

saw etc. It is Section 161 Cr.P .C. which provides for recording of such A
y
statements. Assuming that t_here is failure to keep a diary as reqnired by
Section 172 Cr.P.C., the same cannot have the effect of making the
evidence of such polic~ officer inadmissible and what inference should be
drawn in such a situation depends upon the facts of each case. It is
well-settled that the entries of the police diary are neither substantive nor
corroborating evidence and they cannot be used by or against any.other B
witness than the police officer and can only be used to the limited extent
indicated above. The above stated principles are reiterated in many
decisions rendered by the courts.

As early as 1897 the Full Court of the Allahabad High Court in c
Queen Empress v. Mannu, !LR Allahabad Vol. XIX 390 examined the
scope of Section 172 Cr.P.C. and the meaning of the police diaries and
Edge, CJ. who spoke for the Court held thus:

'Section 172 of the Code of Criminal Procedure provides for the
two events, on the happening of either of which the accused or his D
agent is entitled to see the special diaiy: and it enacts that, except
on the happening on one of those events, "neither the accused nor
his agents, shall be entitled to call for such diaries, nor shall he or
they be entitled to see them merely because they are referred to
by the Court." In my opinion the plain meaning of section 172 is E
that the special diary, no matter what it may contain, is absolntely
privileged, unless it.is used to enable the Police officer who made.
it to refresh his memory or is used for the purpose of contradicting
h'tm. '

(emphasis snpplied) F

Coming to the entries that are to be made and the "aid" which the courts
can have, it was further observed :

'A properly kept special diary would afford snch information, and
such information wonld enable the Magistrate or Judge to deter- G
. ,\ mine ',Vhether persons referred to in the special diary, but ,not sent
up as •.vitnesses by the Police, should be summoned to give
evidence in the interests of the prosecution or of the accused. It
must be always remembered that it is the duty of the Magistrate
or of the Judge before whom a criminal case is, to ascertain if H
1

1214 SUPREME COURT REPORTS [1995] 3 S.C.R.

A possible on which side the truth is, and to decide accordingly."

This view of the Full Bench has been approved by the Privy Council in Dal
Singh v. King Emperor, AIR (1917) PC 25. The Privy Council while disap-
proving the use to which the entries were put to, held thus :

B "In other words, they treated what was thus entered, as evidence
which could be used at all events for the purpose of discrediting
these witnesses. In their Lordships' opinion, this was plainly wrong.
It was inconsistent with the provisions of section 172 of the
Criminal Code. To use the diary for the purpose they did was to
c contravene the rule laid down in Queen Empress v. Mannu, (1897)
19 All 390 where a full court pointed out that such a diary may be
used to assist the Court which tries the case by suggesting means
of further concluding points which need clearing up, and which
are material for the purpose of doing justice between the Crown
and the Accused, but not as containing entries which can by
D themselves be taken to be evidence of any date, fact or statement
contained in the diary. The police officer who made the entry may
be confronted with it but not any other witness."

In Pulukuri Kottaya v. King Emperor, AIR (1947) PC 67 it was laid down
E that breach of Section 172 does not amount to any illegality and the same
does not vitiate the trial. In Niranjan Singh and Others v. State of Uttar
Pradesh, AIR (1957) SC 142 it was urged that there was a failure to comply
with para 109 of Chapter 11 of U.P. Police Regulation which lays down
that when the investigation is closed for the day a copy of the case diary
should be sent to the superior police officers and such failure amounted
F to infraction of rule of law. A Bench of three Judges of this Court
considered this aspect and following the ratio in Pulukuri Kottaya's case
held as under:

'The Criminal Procedure Code in laying down the omissions or
irregularities which either vitiate the proceeding,s or not does not
G a
anywhere specifically say that mistake committed by a police
officer during the course of the investigation can be said to be an
illegality or irregularity. Investigation is certainly not an inquiry or
trial before the court and the fact that there is no specific provision
either way in Chapter XLV with respect to omissions or mistakes
H committed during the course of investigation except with regard
SHAMSHULKANWARv.SfATEOFU.P.[K.JAYACHANDRAREDDY,J.] 1215

to the holding of an inquest is, in our opinion, a sufficient indicating A
that the legislature did not contemplate any irregularity in inves-
tigation as of sufficient importance to vitiate or otherwise form any
infirmity in the inquiry or trial." ·

In Habeeb Mohammad v. The State of Hyderabad, [1954] SCR 475 it was
held thus: B

"Section 172 provides that any criminal court my send for the police
diaries of a case under inquiry or trial in such court and may use
such diaries, not as evidence in the case but to aid it in such inquiry
or trial. It seems to us that the learned Judge was in error in making C
use of the police diaries at all in his judgment and in seeking
confirmation of his opinion on the question of appreciation of
evidence from statements contained in those diaries. The only
proper use he could make of these diaries was the one allowed by
section 172, Criminal Procedure Code., i.e., during the trial he
could get assistance from them by suggesting ineans of further D
elucidating points which needed clearing up and which might be
maierial for the purpose of doing justice between the State and
the accused.'

In Khatri and Others (W) v. State of Bihar and Others, [1981] 2 SCC 493 it
was held thus: E

'The criminal court holding an inquiry or trial of a case is therefore
empowered by sub-section (2) of Section 172 to send for the police
diary of the case and the criminal court can use such diary, not as
evidence in the case, but to aid it in such inquiry or trial. But, by
reason of such-section (3) of Section 172, merely because the case F
diary is referred to by the criminal court, neither the accused nor
his agents are entitled to call for such diary nor are they entitled
to see it. If however the case diary is used by the police officer
who has made it to refresh his memory or if the criminal court uses
it for the purpose of contradicting such police officer in the inquiry G
or trial, the provisions of Section 161 or Section 145, as the case may
be, of the Indian Evidence Act would apply and the accused would
be entitled to see the particular entry in the case diary which has been
referred to for either of these purposes and so much of the diary as
in the opinion of the court is necessary to a full understanding of
the particular entry so used. It will thus be seen that the bar against H
1

1216 SUPREME COURT REPORTS (1995)3 S.C.R.

A production and use of case diary enacted in Section 172 is intended
to operate .only in an inquiry or trial for an offence and even this
bar is a limited bar, because in an inquiry or trial, the bar does
not operate if the case diary is used by the police officer for
refreshing his memory or the criminal court uses it for the purpose
of contradicting such police officer."
B
(emphasis supplied)

In Mukand Lal v. Union of India and Another, AIR (1989) SC 144 it was
observed that the court is empowered to call for relevant case diary if there
is any inconsistency or contradiction arising in the context of the case diary
C and the court can use the entries for the purpose of contradicting the police
officer as provided in Sub-section (3) of Section 172 Cr.P.C. Likewise in
State of Bihar and Another v. P.P. Shanna, !AS and Another, (1992) Supp
1 sec 222 it was observed thus:

D ''The only duty cast on the investigation is to maintain a diary of
his investigation, which is known as "Case Diary' under Section
172 of the Code. The entries in the case diary are not evidence
nor can they be used by the accused or the Court unless the case
comes under Section 172{3) of the Code. The court is entitled for
perusal to enable it to find ont if the investigation has been
E conducted on the right lines so that appropriate directi<!ns, if need
be, be given and may also provide materials showing the necessity
to summon witnesses not mentioned in the list supplied by the
prosecution or to bring on record other relevant material which in
the opinion of the court will help it to arrive at a proper decision
F in terms of Section 172(3) of the Code. The primary duty of the
police, thus is to collect and sift the evidence of the commission
of the offence to find whether the accused committed the offence
or has reason to believe to have comrritted the offence and the
evidence available is sufficient to prove the offence and to submit
his report to the competent Magistrate to take cognizance of the
G offence. 11

Now coming to the rights of the accused regarding the use of diaries, this
Court in Ma/kia! Singh and Others v. State of Punjab, (1991) 4 SCC 341
reiterating the view taken in Mannu's case and in Khatri's case (supra)
H regarding the scope of section 172 (3) also observed thus:
SHAMSHULKANWARv. SfATE OFU.P. [K.JAYACHANDRAREDDY,J.] 1217

"The evidence on record clearly shows that the defence has freely A
used the entries in the case diary as evidence and marked some
i
portions of the diary for cpntradictions or omissions in the prosecu-
tion case. This is clearly in negation of and in the teeth of Section
172(3) of the Code.

xxxx xxxx xxxx B

xxxX xxxx xxxx

It is manifest from its bare reading without subjecting to detailed
and critical analysis that the case diary is only a record of day to c
day investigation of the investigating officer to ascertain the state-
ment of circumstances ascertained through the investigation.
Under sub-section (2) the court is entitled at the trial or enquiry
to use the diary not as evidence in t~e case, but as aid to it in the
inquiry or trial. Neither the accused, nor his agent; by operation D
of sub-section (3), shall be entitled to call for the diary, nor shall
he be entitled to use it as evidence merely because the court
-i referred to it. Only right given thereunder is that if the police
officer who made the entries in the diary uses it to refresh his
memory or if the court uses it for the purpose of contradicting
such witness, by operation of Section 161 of the Code and Section E
145 of the Evidence Act, it shall be used for the purpose of
contradiction the witness, i.e. Investigation Officer or to explain it
in re- examination by the prosecution, with permission of the court.
It is, therefore, clear that unless the investigating officer or the
court uses it either to refresh the memory or· contradicting the F
investigating officer as previous statement under Section 161 that
too after drawing his attention thereto as is enjoined under Section
145 of the Evidence Act, the entries cannot be used by the accused
as evidence. Neither PW 5 nor PW6, nor the court ll$Cd the case
diary. Therefore, the free use thereoffor contradicting the prosecution
evidence is obviously illegal and it is inadmissible in evidence. G
Thereby the defence cannot place reliance thereon. But even if we
-- ... were to consider the same as admissible that part of the evidence
does not impinge upon the prosecution evid.ence.

(emphasis supplied) H
\

1218 SUPREME COURT REPORTS [1995) 3 S.C.R.

A With regard to the nature of the entries to be made in the diary as
required under Section 172 Cr.P.C. and the limited permissible use by the
court or by the accused indicated therein have been the subject matter of
decisions of a number of High Courts over the years. It may not be
necessary to refer to them. However, we have noticed that there is vague-
ness as to the nature of the diary contemplated under this Section. In some
B States the diary referred to in Section 172 Cr.P.C. is known as "special
diary" or "case diary" and in some other States like Andhra Pradesh, J &
K and Kerala there is a provision in the Police Acts that a 'general diary'
is to be maintained in the police station thereby indicating it to be differ.,nt
from the case diary. In some States there are police standing orders to the
C effect that the diary contemplated under Section 172 Cr.P.C. can be of two
parts; the first one relating to the steps taken during the course of inves-
tigation by the police officer with particular reference to time at which the
police received the information and the further steps taken during the
investigation like visiting the places etc. and the second part contains
D statement of the circumstances ascertained during the investigation which
obviously relate to the statements recorded by the officer in terms of
Section 161 Cr.P.C. and other relevant materials gathered during the
investigation. The copies of the second part which mainly contains the
statements of the witnesses as a matter of course are supplied to the
a<:eused persons.
E
For instance Madras Police Standing Order No. 589 provides that
the record of an investigation shall be made in the case diary (Form no.
82) which is the diary prescribed in section 172 of the Criminal Procedure
Code. It will bear the number of the First Information Report. Order No.
F 590 further lays down that the record of investigation in a case diary should
contain only daily details of the time at which the information reached the
Investigation Officer, the time at which he began and closed his investiga-
tion, the place or places visited by him and a statement of the circumstan-
ces ascertained through his investigation and that the Police will truly
record the statement of persons examined by them in the court of the
G investigation. Para 2 further adds that case diaries should be prepared in
two distinct parts, viz., (1) Investigation Part and (2) Statement of witnesses
recorded under Section 162 Cr.P.C. and that the second part alone should
j..-
be handed over to the Magistrate's clerk for making out copies to be
furnished to the accused. Likewise in AP. Police Standing Orders, Order
H No. 599 refers to Section 172 Cr.P.C. and lays down that the said provision
>'l!AMSHULKANWARv. STATE OFU.P. [K. JAYACHANDRA REDDY, J.J 1219

requires that every police officer making an investigauon should enter day A
by day his proceedings in the investigation in the diary, setting forth time
i at which the information reached him, the time at which he began and
closed his investigation, the place or places visited by him and a statement
of the circumstances ascertained through his investigation. Para (3) of the
said order says that the case diary proper should contain these details and B
should be written in Form No. 71. Para (2) further lays down that state-
ments of witnesses examined by the police during the investigation should
be recorded in Form No. 72 and should be attached to the case diary for
the day. Police Standing Order No. 600 is to the effect that the copies of
the statements of witnesses proposed to be examined during an inquiry or
trial should be made available to the accused before the inquiry or trial C
commences and !bat the case diary proper may be put to use to the extent
as provided under Section 172 Cr.P.C. Police Stal)ding Order No. 601
contains the detailed instructions regarding writing of the case diary.

Therefore it is clear that the diary referred to in Section 172 and .D
which the court may call for and which can be used to the limited extent
mentioned therein obviously refers to the first part and to the copies of
which the accused is not entitled to and the entries of which can be used
to the limited extent by the court as well as by the accused as contained in
Section 172 Cr.P.C. If by virtue of such police standing orders, the second
part also forms compendiously part of the diary as a whole and if that also E
is before the court, the use of the entries in such second part which
contains the statements of the witnesses recorded, would be of different
nature. In some States for instance Uttar Pradesh there are regulations
regarding the maintenance of general and case diaries. Section 161 Cr.P.C.
provides for examination of witnesses by police. It further lays down that F
the police officer during investigation may examine the witnesses and may
reduce into writing any statement made to him in the course of such
examination and if he does so he shall "make a separate and true record"
of the statement of each such person. Section 162 lays down that no such
statement m~de by any person to a police officer shall if reduced to writing G
be signed "nor shall any such statement or any record thereof whether in
a "police diary" or otherwise" be used for any purpose at any inquiry or
trial save as provided under that Section. The words "police diary or
otherwise" used in this Section have perhaps been the basis for dividing the
diary into two parts. Section 167, an important provision, deals with the
procedure when investigation is not completed within 24 hours and H
1220 SUPREMECOURTREPORTS (1995) 3 S.C.R.

A provides for production of the accused before a magistrate for seeking
remand. This provision also lays down that the officer incharge of a police
station or the police officer making the investigation "shall forthwith trans- '
mit to the nearest judicial magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case" and at the same time forward
B the accused to such magistrate. Likewise sub-section (2a) of Section 167
which provides for production of the accused before an executive
magistrate lays down that the copy of the entry in the diary "hereinafter"
prescribed relating to the case shall be transmitted while forwarding the
accused. The object underlying is that the magistrate before remanding the
accused to custody should satisfy himself that there is a p'ima facie case
C for doing so after a perusal of the copies of the entries "in the diary'. We
'
are referring to this aspect only to point out that some vagueness or
confusion is there in respect of the meaning of the word "diary" used in
Section 172 and other Sections of Cr.P.C. and we suggest that a legislative
change is necessary providing for framing of appropriate and uniform
D regulations regarding the maintenance of the diaries by the police for the
purpose contemplated by Section 172 CrP.C. vis-a-vis the other sections
referred to above.

We are constrained to go into this aspect in an elaborate manner as
even on today we are coming across a number of cases where there has
E been a patent misuse of the case diaries to be maintained as per Section
172 Cr.P.C. The Full Court in Mannu's case observed, as long back as 1897,
as under:

"It is within the experience of every Judge of this Court that much
misconception exists in these Provinces as to the use which can be
F
made by a Court or by an accused person or his agents of the
diaries which are kept by Police officers under section 172 of the
Code of Criminal Procedure, and which in these Provinces are
known as special diaries. It is within our judicial knowledge that
some Sessions Judges and some Magistrates have decided criminal
G cases by conviction or by acquittal of the accused on statements
which are found in the special diary relating to the case."

To the same effect are the observations by Privy Council in Dal Singh's
case. But as pointed out by this Court in Malkiat Singh 's case that the courts
H even in recent times are not keeping in view the true scope of Section 172
·SHAMSHULKANWARv. STATE OFU.P. [K.JAYACHANDRAREDDY,J.) 1221

and the use to which the diaries should be put to. A
Now coming to the positipn in the present case on this aspect we do
not find anything on the record to show as to how Ex.Ka-124 the entry in
the general diary came on record. It is nowhere endorsed in the deposition
of P.W. 20 that he used the same for refreshing his memory or the court B
used it for contradicting P.W. 20 with reference to the entries in the diary.
It is just mentioned that Ex.Ka-124 is matked. Thereafter we find a lengthy
cross-exainination on the basis of the contents of Ex.Ka-124 which is
impermissible for the above said reasons. In any event P.W. 20 has rightly
asserted that no further details need be mentioned in the entry in the
general diary, Ex.Ka-124. It may be mentioned at this stage that P.W. 20 C
as a police officer left the police station under the orders of his superior
to give protection to the funeral party. Therefore he was on duty .and in
respect of the same he made the necessary entries in the general diary.
Being a witness to the occurrence he was examined by the investigating
officer, P.W. 8 under Section 161 Cr.P.C. There is very little cross-ex- D
arnination of P.W. 20 with reference to the contents of his statement utlder
Section 161. On the other hand, the whole cross-examination proceeded
on the basis of Ex.Ka-124 by the learned defence counsel pointing out that
the details given by him regarding the occurrence as a eye-witness are not
there in Ex.Ka-124. As explained above this is not the scope of the use of
the entries in the diary as provided under Section 172 Cr.P.C.'At this stage E
we have to point out that strictly speaking Ex.Ka-124 cannot be said to be
an entry in case. diary within the meaning of Section 172 Cr.P.C. nor it is
a statement recorded under Section 161 Cr.P.C. P.W. 20 as an officer on
duty made that entries in the diary kept in the Station which is also called
general diary and different for "case diary". However,' having regard to the F
way this document has been used in the case we are constrained to go into
the scope of Section 172 Cr.i'.C. and the nature of the entries to be made
' in the respective diaries. For all these reasons we are unable to agree with
the learned counsel that P.W. 20 was not an eye-witness ~d that he was
also subscribing to the version given by. the interested witnesses. The
evidence of P.W. 20 amply corroborates the evidence of the other eye-wit- G
nesses whose presence at the scene of occurrence cannot be doubted.

Regarding the genesis, the submission of the learned counsel for the
appellants is that as per the entries in the general diary Ex.Ka-122 and
Eic.Ka-124 till 3.45 P.M. nothing happened; at the most there was tension H
1222 SUPREME COURT REPORTS (1995] 3 S.C.R.

A and that because of some provocative acts on the part of the prosecution
party the occurrence must have commenced and it is difficult to say as to
who started firing first and taking the whole secenario into account it must
be held that there was a fight between the two parties and there must have
been cross-firing and therefore it cannot definitely be said that the accused
B alone were the aggressors. We s"e no force in this submission. All the 10
pasons that were killed admittedly belong to the prosecution party par-
ticipating in the funeral and many of them were from Delhi. One person

C
belonging to the accused party received injuries at the hands of police that
too in the last phase. The evidence of P.W. 20 is clear on this aspect who
deposed that when the accused party started attacking the police they in
turn fired and caused injuries to Razi accused and who was taken away by
the accused and who died later. In assessing as to who were the aggressors
' -
several surrounding circumstances have to be taken into consideration. The
prosecution party went to the village only for the cremation of the body of
the old lady. They also took support of police and four other persons from
D Village Dariyapur. This no doubt might have created tension in the Village
but as it emerges from the evidence and also from the fact that all the
persons killed belonged to the prosecution party it is clear that the accused
party were the aggressors and indulged in indiscriminate firing causing the
death of so many people of the opposite party. There cannot be any doubt
E that they were the members of the unlawful assembly and such of those
whose presence as members of the unlawful assembly is established cannot
but be held guilty. Both the courts on a detailed examination of the
evidence of the eye-witnesses P.Ws. 1 to 4 have concurrently held that the
accused persons formed into an unlawful assembly with the common object
F of attacking and killing the members of the opposite party who were in the
funeral procession.

This takes us to the next question as to whether all the accused
challenged and tried were members of the unlawful assembly. Right from
the stage of F.I.R. their names have been mentioned and in the evidence
G the eye-witnesses have particularly deposed that they were present at the
scene of occurrence duly armed and specific overt acts also are attributed
to atleast six of them. In an occurrence of this magnitude where several
persons have participated it would not be possible for the witnesses to
specify the part played by each of them. It is clear from the facts and
H circumstances and from the evidence that such of those accused who came
SHAMSHULKANWARv. STATE OFU.P. (K.JAYACHANDRA REDDY,J.J 1223

to the scene of occurrence armed with lethal weapons in a group and A
proceeded to participate in the attack, shared the common object of the
unlawful assembly namely to attack and kill the members of the opposite
party. Consequently they would be liable under Sections 302/149 I.P.C.

Now coming to the case of the individual accused, the trial court as
well as the High Court have scanned the evidence of the eye- witnesses in B
great detail alongwith the evidence of P.W. 20 and held that the prosecu-
tion has established that these accused were members of the unlawful
assembly sbaring the said common object. The trial court, however, by way
of abundant caution acquitted A- 9, A-19, A-20 and A-21 after scrutinising
' ' the evidence of the eye-witnesses who were interested in the light of the C
medical evidence and other circumstances and gave them benefit of doubt.
Likewise the High Court acquitted A-3 and A-18. We have already
referred to the reasons given by the courts below for acquitting these six
accused and we do not see any ground to interfere in the appeal filed by
the State against their acquittal.
D
Now coming to the case of the convicted accused, the learned
counsel submitted that in a case of large scale rioting of this nature where
even according to the prosecution a number of people gathered at the
scene of occurrence, it is highly unsafe to convict any of the accused by the
application of Section 149 I.P.C. unless it is positively proved that each one E
of them shared the common object and accordingly participated in the
occurrence.

The scope of Section' 149 has been explained in a number of cases
by this Court. lnMasalti and Ors. v. The State of Uttar Pradesh, AIR (1965)
SC 202 it was observed as under : F
"What has to be proved against a person who is alleged to be a
member of an unlawful assembly is that he was one of the persons
constituting the assembly and he entertained along with the other
members of the assembly the common object as defined by s.141
I.P.C. Section 142 provides that however, being aware of facts G
which render any assembly an unlawful assembly, intentionally
joins that assembly or continue in it, is said to be a member of an
unlawful assembly. In other words, an assembly of five or more
persons actuated by, and entertaining one or more of the common
objects specified by the five clauses of S..141, is an unlawful as- H
.1224 SUPREME COURT REPORTS (1995] 3 S.C.R.

A sembly. The crucial question to determine in such a case is whether
the assembly consisted of five or more persons ~d whether the
said persons entertained one or more of the common objects as
opecified by s.141. While determin,ing this question, it becomes
relevant to consider whether the assembly consisted of some per-
sons who were merely passive witnesses and had joined the as-
B sembly as a matter of idle curiosity without intending to entertain
the common object of the assembly. It is in that context that the
observations made by this Court in the case of Baladio (S) AIR
(1956) SC 181 assume significance; otherwise, in law, it would not
, .
be correct to say that before a person is held to be a member of
c an unlawful assembly, it must be shown that he had committed
some illegal overt act or had been guilty of some illegal omission
in pursuance of the common object of the assembly. In fact, S.149
makes it clear that if an offence is committed by any member of
an unlawful assembly in prosecution of the common object of that
assembly, or such as the members of that assembly .knew to be
D likely to be committed in prosecution of that object, every person
who, at the time of the committing of that offence, is a member of
the same assembly, is guilty of that offence; and that emphatically
brings out the principle that the punishment prescribed by s.149 is
in a sense vicarious and does not always proceed on the basis that
E the offence has been actually committed by every member of the
unlawful assembly''.

Io Lalji and Others v. State of U.P., AIR (1989) SC 754 it was observed
thus:

F
"Section 149 makes every member of an unlawful assembly at the
time of committing of the offence guilty of that offence. Thus this
section created a specific and distinct offence. In other words, it
created a constructive or vicarios liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to the
G common object by any other member of that assembly. However,
the vicarius liability of the member of the unlawful assembly
extends only to the acts done in pursuance of the common object
of the unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
H prosecution of that object. Once the case of a person falls within
(
SHAMSHULKANWARv. SfATEOFU.P. (K.JAYACHANDRAREDDY,J.) 1225

the ingredients of the section the question that he did nothing with A
i his own hands would be immaterial. He cannot put forward th.e
defence that he did not with his own hands commit the offence
committed in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be likely
to be committed in prosecution of that object. Everyone must be B.
taken to have .intended the probable and natural results -0f the
combination of the acts in which he joined. It is not necessary that
all the persons forming an unlawful assembly must do some overt
• < act. When the accused persons assembled together, armed with
lathis, and were parties to the assault on the compiainant party,
the prosecution is not obliged to prove which specific overt act C
was done by which of the accused. This section makes a member
of the unlawful assembly responsible as a principal for the acts of
each, and all, merely because he is a member of an unlawful
assembly. While overt act and active participation may indicate
common intention of the person perpetrating the crime, the mere D
presence in the unlawful assembly may fasten vicaiously criminal
I
liability under S.149. It must be noted that the basis of the con-
structive guilt under S.149 is mere membership of the unlawful
assembly, with the requisite common object or knowledge.'

Therefore, as indicated above, to infer common object it is not necessary E
that each one of them should .have participated in the attack. However, the
evidence of the eye-witnesses clearly establishes that each one of these
convicted accused was member of the unlawful assembly whose common
object was to commit murders.· A-1 and A-2 are the ri:al brothers of Mirja
Badar, whose murder in fact was the root cause of the present incident. F
Ashgar and Nisar alias Baddu accused are their brothers-in-law. Ali, Razi,
the deceased accused, and his nephew Shore alo~gwiih Shamshul Kanwar
and others were P.Ws. in the earlier case. The other accused also are
closely related to these people and admittedly there was bitter enemity
between the two ·groups. W.P. 4, who gave the earliest report, has men-
tioned the names of all these convicted accused in his deposition. He stated G
that A-1, Sltam$hul Kanwar and A-2, Rashidul Zafar alias' Cbhot~ were
armed with' rifles and both of them shot at the two deceased persons S1'ahir
Hussain, D-1 and Munnawar Hussain, D-2 who fell donw and died. It is.
also in his evidence that Ashgar, A-9, Rais, A-10 Haidar, A-4, F'troz, A-5,
Baboo, A-6, Mahir, A-7 and Munna, A-8 were armed with guns and Nisar H·
1226 SUPREME COURT REPORTS [1995] 3 S.C.R.

A alias Baddu, A-11, Shore, A-12, Bhoora, A-13, Dilshad, A-14, Nisar, A-15
were armed with their farsas and Masita, A-16 and Balloo, A-17 were
armed with knives. P. W. 4 also stated that all these persons were before
the court. He further deposed that it was A-1 and A-2 who fired first
causing the death of D-1 and D-2 and that at the same time the other
B accused armed with fire arms namely guns and pistols fired at them. As a
result of this firing all the other deceased persons received injuries. It is
also in his evidence that accused Shore and Dilshad with farsas attacked
fallen Farkat Ali, D-3. Likewise Shaukat Ali, D-7 had fallen down and he
was attacked by Nisar Alias Baddu, with his farsa, and by Masita and ' .
Balloo with their knives. P.W. 3 was also assaulted by Nisar s/o Saklain with
C his chhuri, Bhoora with his farsa and by Jarrar with his ballam. It may be
mentioned that four of the accused persons were arrested on the spot. In
respect of the material particulars regarding names of these convicted
accused, the weapons with which they were armed and the details of the
participation, we do not find any material omissions, variations or dis-
D crepancies when compared to the contents of the F.I.R. These particulars
are also fond in the evidence of P.Ws. 1 to 3 and their evidence is also
corroborated by the evidence of P.W. 20. Therefore both the courts below
after having applied the necessary tests and after a careful appreciation of
their evidence have rightly held that everyone of these convicted accused
was the member of the unlawful assembly and thus liable under Sections
E 302/149 1.P.C. and it is unnecessary for us to once again reconsider every
detail in respect of the case against each individual accused. However, we
have perused the evidence of the material witnesses in great detail and we
find that there is ample material to show that each one of these convicted
accused was member of the unlawful assembly and was rightly convicted.
F The medical evidence also shows that the Doctors who conducted post-
mortems on the dead bodies found in all 23 incised wounds and likewise
a number of fire-arm injuries. Therefore the evidence of these witnesses is
also corroborated by the medical evidence.

As noted above, the High Court, however, altered the sentence of
G death to imprisonment for life in respect of five of the accused and
confirmed the death sentence of A-1, Shamshul Kanwar only. The State
also has filed an appeal for awarding death sentence to all the accused. It
becomes necessary at this stage to consider whether this is one of "rarest
of rare cases" in the light of the guidelines laid down by this Court and
H whether death sentence should be awarded to all as prayed for by the State.
(

SHAMSHULKANWARv. STATE OFU.P. [K.JAYACHANDRAREDDY.J.] 1227

It may not be necessary to refer to many decisions. In Bachan Singh A
and Others v. State of P1111jab and Others, [1980) 2 SCC 684 the Constitution
Bench observed thus:

"'As we read Sections 354 (3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for making
the choice of punishment or for ascertaining the existence or B
absence of 'special reasons' in that context, the court must pay due
regard both to the c1ime and the criminal. What is the relative weight
to be given to the aggravating and mitigating factors, depends on the
facts and circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to give a C
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 watertight compart- D
ments. 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." E
(emphasis supplied)

In the same case the Court also noted some mitigating circumstances as
well as aggravating circumstances. That may be relevant in awarding death
sentence or otherwise. Thereafter it was further observed : F
''There are numerous other circumstances justifying the passing of
the lighter sentence; as there are countervailing circumstances of
aggravation. ''We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an G
imperfect and undulating society." Nonetheless, it cannot be over
emphasised that the scope and concept of mitigating factors in the
area of death penalty must receive a liberal and expenses construc-
tion by the courts in accord with the sentencing policy writ large
in Section 354(3). Judges should never be bloodthirsty. Hanging
of murderers has never been too good for them. Facts and figures, H
l
1228 SUPREME COURT REPORTS (1995] 3 S.C.R.

A albeit incomplete, furnished by the Union of Inqia, show that in
the past, courts have inflicted the extreme penalty with extreme
infrequency - a fact which attests to the caution and compassion
which they have always brought to bear on the exercise of their
sentencing discretion in so grave a matter. It is, therefore, impera-
tive to voice the concern that courts, aided by the broad illustrative
B guidelines indicated by us, will discharge the onerous functions
with ever more scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section 354(3),
viz., thai for persons convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and abiding concern
c for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option is unques-
tionably foreclosed."

These guidelines laid down by the Constitution Bench have b~en reiterated
D in Machhi Singh v. State of Punjab, (1983] 3 SCC 470 and Allauddin Mian
v. State of Bihar, (1989] 3 SCC 5. In Al/auddin Mian's case it was also
observed:

"Unless the nature of the crime and the circumstances of the offender
E 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 lesser punishment and not the ex-
treme punishm~nt of death which should be reserved for excep-
tional cases only."
•
F (emphasis supplied)

After referring to some U.S. cases, one of the mitigating circumstances
noted in Bachan Singh 's case is that "the offence was committed under
extreme mental or emotional disturbance." In Dennis Councle Mcgautha v.
G State of California, 402 US 183, 28 L Ed 2d 711, 91 it was noted as under:

'No formula is possible that would provide a reasonable criterion
for the infinite variety of circumstances that may affect the gravity
of the crime of murder. Discretionary judgment on the facts of
each case is the only way in which they can be equitably distin-
H guished."
(

SHAMSHULKANWARv. STAIB OFU.P. [K.JAYACHANDRAREDDY,J.] 1229

In the same judgment it was also pointed out as under: A
I
"Mitigating Circumstances.

xxxx

(b) The murder was committed while the defendant was under the B
influence of extreme mental or emotional disturbance.

xxxx xxxx

Bearing these guidelines we shall examine the facts and circumstan-
ces in the instant case for the purpose of awarding sentence. C
This is a case arising out of acute faction. It is unfortunate that inspite
of the presence of the police party, a rioting took place. It is clear from
the prosecution case that the prosecution party in large number alongwith
four gunmen from Dariyapur whose services were enlisted and also the
armed police party proceeded to the village under the umbrella provided D
by the Labour Minister and Pradhan of Village Dariyapur to bury the dead
I body of the old lady. The evidence of P.W. 20 also shows that there was
tension. The way the prosecution party went to that Village in gusto with
a spirit of bravado itself indicates that there must have been some provoca-
tive acts which created the tension particularly in the background of the E
acute faction. As already pointed out nothing happened for quite some
time and it is also the case of the prosecution. that the accused did not.
interfere with the burial. It is only thereafter that some incident triggered
off in firmg by the accused persons. Unfortunately 10 persons on the side
of the prosecution died. The large number of deaths on one side cannot
ipso facto be a ground to bring the case into the category of 'rarest of rare F
cases'.' particularly when we take into consideration the other aspects
mentioned above.

In Francis. alias Ponnan v. State of Kera/a, AIR (1974) SC 2281 this
Court observed as under :
G
'Nevertheless, in deciding whether the case merits· the les,s severe
\
of the two penalties prescribed for murder a history of re!ations
between the parties concerned the background, the context, of the
factual setting of the crime and the strength and nature of the motives
operating on the mind of the offender, are relevant considerations. H
)
1230 SUPREME COURT REPORTS [1995] 3 S.C.R.

A The state of feelings and mind produced by these, while in sufficient
to bring in an exception, may suffice to make the less severe
\
sentence more appropriate."

(emphasis supplied)

B lmoor Singh and Another v. State of Punjab, AIR (1974) SC 1256 is a case
where there was a fight between two armed parties resulting in death and
injuries where one of the accused persons also received fatal injuries. In
such a situation while considering whether award of death sentence was
warranted, this Court observed thus:
c
"The above circumstances, although insufficient to make out a plea
of private defence or to palliate the offence, could legitimately be
taken into account in choosing between the sentence of life or of
death. Yet another supervening factor which by the sheer weight
of compassion tilts the scales of justice in favour of life rather than
D
extinguishing it, is that the dread of impending execution has been
brooding over the head of these condemned prisoners for an
excruciatingly long period. They were sentenced to death in 1971.
We are now in 1974."

E It is pertinent to note that none of the accused caused any injuries to any
of the policemen. No doubt prosecution alleged that one Constable Kanshi
Ram received a stray pellet injury which is simple. However, he was not
even examined. Admittedly the police fired and caused the death of one
of the accused persons. Yet there is nothing to show that the accused
F acted cruelly and attacked them. To that extent they manifested a sense of
restraint. No doubt we have held that the accused were the aggressors. But
aggression again could also be due to provocation, resulting in a disturbed
and agitated state of mind. Many a time, in such a 3ituation, heat of passion
would be the mob of the man that co:nmits a riot on his reason and does
not look beyond the moment of its existence, causing disappearance of the
G sense of reasoning. We are reierring to these circumstances to show that
as pointed out in Francis alias Ponnan's case and Bhoor Singh's case,
though insufficient to attract any exception are, however, very much
relevant in awarding lesser sentence. Therefore, for the above reasons, the
contention by the State that death sentence should be awarded to all the
H accused has to be rejected.
(

SHAMSHULKANWARv.STAIBOFU.P.[KJAYACHANDRAREDDY,J.) 1231

The trial court sentenced Shamshul Kanwar, A-1, Residual Zafar A
i alias Chotta, A-2, Nisar alias Baddu, A-11, Nisar s/o Mohd. Saklain, A-15,
Masita alias Ranjha, A-16 and Balloo s/o Hussain Taki, A-17 to death on
the ground that A-1 and A-2 declared that they would teach a lesson to
the prosecution party members for enteriog the Village and simultaneously
shot deadShabir Hussaio and Munnawar hlissain, deceased and that A-11, B
A-15, A-16 and A-17 were arrested on the spot and were with blood-
stained weapons and knives and that they inflicted iojuries with their
weapons on deceased Sli.abir Hussain, Shaukat Ali and Mohd. Ali who had
already fallen down due to gun shot iajuries and therefore they actively
participated io the iocident. The High Court, however, set aside the death
sentence awarded to A-2 Rashidul Zafar on the ground that he was C
younger brother of A-1 and he simply might have followed the order of his
.elder brother Shamshul Kanwar, A-1 who iocited. The High Court also set
aside the death sentence awarded to A-11, A-15, A-16 and A-17 on the
ground that their case is io no way different from that of Bhoora, A-13 who
was awarded life imprisonment only and no distioction can be drawn. Now D
coming to Sharnshul Kanwar, A-1, the High Court observed thus:

"The court pondered again and· again over the question of inflica-
tion of the death penalty. Law cannot make the place of a reven-
geful iodividual to apply the theory of retribution. Scale of justice
also cannot behave like the reckless citizens iovolved io this was E
whose conduct amounts to challenging the very legal methods
which were available for settiog scores concerniog earlier murders.
But one is left aghast and startled when one look the way Shalrishul
, Kanwar has behaved io the iostant case. He was the sitting Pradhan
of the Village which is the ground root level of the democratic F
background of our socio-political scenario. Much more responsibility
resided in him than other citizen. He knew that appeal has been filed
by the accused convicted with regard to the earlier murder of his
brother Mirza Badar. Thus Sharnshul Kanwar was in a commanding
position and he could have stopped the entire massacre. There is no G
doubt in the mind of the coUlf that had Shamshul Kanwar behaved
even with the least reasonableness the ten dead bodies would not
· have fallen on the burial ground. It was too much for Shamshul
Kanwar to have used the occasion of burying Smt. Phannoodan as
the one for taking revenge of his brother's murder. Not only that, he
arranged the mass annihilation in one of the most cowarJice and H
l
1232 SUPREME COURT REPORTS (1995] 3 S.C.R.

A reprehensible manner, in fact, burying all sentence of sociality,
religious sentiments attached at the time of (sic) and appreciating
the depressed sentiments of the family members of the dead. The
well organised crime is an outright challenge to the very system of
administration of criminal justice. Therefore, awarding of death
sentence on Sharnshul Kanwar was only just and proper and
B correct. Any thing short of do sentence on Sharnshul Kanwar would
make mockery of the law, render the administration of criminal
law futile as well as death sentence under Section 302 I.P.C.
practically nugatory. Therefore, the conviction and sentence
awarded to Sharnshul Kanwar have to be maintained as it is."
c
(emphasis supplied)

Learned counsel for the State while supporting death sentence
awarded to A-1 submitted that the High Court should atleast have con-
D firmed the death sentence as awarded by the trial court and that the
reasons given for reducing the death sentence of A-2, A- 11, A-15, A-16
and A-17 are illogical <!Ild unsound. Having given our earnest consideration
to the facts and circumstances of the case and particularly to the back-
ground and the nature of the occurrence and the atmosphere in which the
occurrence took place, we do not think that we should interfere and award
E death sentence to these five accused at this distance of time. It cannot be
said that the reasons given by the High Court are wholly irrelevant par-
ticularly when viewed form the angle of the concept of "rarest of rare
cases".

F Now coming to the death sentence awarded to A-1, the question is
whether the reasons given by the High Court would bring his case in the
category of "rarest of rare cases"? One of the reasons given by the High
Court is that he was the Pradhan of the Village and he incited others. In
the earliest report it is mentioned that A-1 said in a loud voice that the
prosecution party would be taught a lesson for entering the Village and
G that it was A-2 who declared that none of the enemies should be allowed
to go alive. Learned counsel for the accused also pointed out that in Ex.Ka-
U4 namely the general diary it is not mentioned that A-1 gave any such
incitement and that on the other hand it is mentioned that A-1 and his
party men surrounded and began to fire. We have perused Ex.Ka-124 and
H as pointed out we do not find any such incitement by A-1 having been
i
SHAMSHULKANWARv. STATE OFU.P. [K.JAYACHANDRAREDDY,J.] 1233

mentioned there. Though we are not using the same as evidence but by A
I way of taking aid in the matter of awarding sentence, we are referring to
the· same. That part it has to. be noted that for quite some time nothing
happened. The presence of four gunmen of Village Dariyapur aod the
provocative gusto in which the funeral procession t6ok place must have
created lot of tension aod all the persons belonging to the accused party B
in the Village who had bitter enemity against the prosecution party because
of the earlier murder must have all gathered aod it cannot definitely be
said that" it was only because of the lead given by A-1 the firing took place.
That apart, A-1 who was armed with a rifle fired only once simultaneously
alongwith A-2 as a result of which each one of two deceased persons Shabir C
hussain and Munnawar Hussain received one fire-arm injury aod no other
overt act is attributed to him. It is not defmite as to whose shot hit whom.
One of the deceased persons namely Munnawar Hussain had only one
fire-arm injury aod the other deceased Shabir Hussain also had one
fire-arm injury as well as several incised injuries aod the Doctor who
conducted post-mortem on the dead body of Shabir Hussain opined that D
his death was due to shock aod hemorrhage as a result of aote-mortem
injuries thereby indicating that the death was not entirely due to fire-arm
injury which cao as well be attributed to the shot fired by A-1, Shamshul
Kanwar. Therefore it is not established that the rifle shot fired by A-1 alone
was responsible for causing the death of Shabir Hussain, deceased. The E
prosecution case is that apart from A-1 aod A-2, one Vilayat Hussain was
also armed with rifle aod he fired. The High Court, however, acquitted
Vilayat Hussain on the ground that he must have fired just a little later and
thus was not responsible for causing aoy rifle shot injuries to either of the
two deceased persons. In this context the inference drawo by the High F
Court is that only two rifle shots were fired one each by A-1 aod A-2.
However, the medical evidence also is not defmite whether there were
other fire-arm injuries on aoy one of the deceased which cao be attributed
to rifle shots. That only shows that A-1, even if the prosecution case is to
be accepted, shot only once aod as discussed above it .is also not clear
whether it alone proved to be fatal, if we take the injuries on deceased no. G
2 and the cause of his death. We are only "pointing out these circumstaoces
to show that A-1 did not act in a cruel and diabolical marmer so as to bring
his case within the meaning of "rarest of rare cases". No doubt in the
present depositions, P.Ws. 1 to 4 stated that A-1 gave incitement. They
were all interested witnesses and normally there would be tendency to give H
1

1234 SUPREME COURT REPORTS [1995] 3 S.C.R.

A a leading role to the leader. We think it cannot definitely be concluded that
A-1 was at the command or he had full control as to stop the other \
·members from indulging in violence. In the background mentioned above,
infuriation was common to every one member of the accused party who
were closely related to each other particularly in the background of bitter
enemity mentioned above. Therefore in that situation they could have
B become uncontrollable. Having given our earnest consideration we are not
able to separate the case of A-1 for awarding death sentence and the
reasons given by the High Court namely that A-1 was Pradhan in com-
manding position etc. do not aggravate the case against A-1.

c A-1, Shamshul
For all these reasons we think that the death sentence awarded to
Kanwar should also be reduced to imprisonment for life. In
the result Criminal Appeal No. 887/94 filed by A-1, Shamshul Kanwar is
partly allowed to the extent of reducing death sentence to imprisonment
for life. In other respects it is dismissed. All the other appeals filed by the
other convicted accused as well as the State are dismissed.
D
S.M. Appeal dismissed.

•