Supreme Court of India

SHIV RAM AND ANR. ETC.versusSTATE OF UTTAR PRADESH

Citation: 1997 INSC 699
Decided: 21 October 1997
Disposal: Dismissed
Bench: M M PUNCHHI

Holding

The Court held that the accused formed an unlawful assembly with a common object to commit mass murders, the case qualifies as "rarest of rare", and therefore upheld death sentences for six accused while commuting A‑6's death sentence to life imprisonment.

Summary

The case involved a mass murder in which 24 persons were accused of killing five members of a family, including the brutal decapitation of three victims and the burning alive of a ten‑year‑old boy, allegedly as revenge for the earlier murder of A‑1's brother. The prosecution relied on two eye‑witnesses who were close relatives of the deceased, forensic evidence, and recovered weapons. The key issues were whether the accused formed an unlawful assembly with a common object to commit the murders under Section 149 IPC, and whether the extreme brutality warranted the death penalty under the "rarest of rare" doctrine. The Supreme Court affirmed that the assembly had a common object of mass murder and that the crime fell within the "rarest of rare" category, upholding death sentences for six accused. However, it commuted the death sentence of A‑6 to life imprisonment due to lack of conclusive evidence that he caused the fatal injury to the child. All other convictions and sentences were upheld.

Issues considered

The existence of a common object of unlawful assembly under Section 149 IPC to commit the mass murders.
Whether the facts constitute a "rarest of rare" case justifying the death penalty.
Whether procedural irregularities (delay in forwarding FIR, omission in inquest report) invalidate the prosecution case.
Whether conviction of the life‑imprisoned appellants can be sustained without specific proof of the common object.
The appropriateness of the death sentence for A‑6 in view of insufficient forensic proof of his direct participation.

Legislation cited

Arms Acts. 25
Code of Criminal Procedure, 1973s. 154, s. 157, s. 366
Indian Penal Code, 1860s. 148, s. 149, s. 25, s. 302, s. 307, s. 404, s. 436, s. 452

Subjects

Unlawful assemblySection 149 IPCDeath penaltyRarest of rare doctrineMass murderBrutalityEvidence of eye‑witnessesProcedural irregularitiesCommutation

Judgment

SHIV RAM AND ANR. ETC. A
v.
STATE OF UTTAR PRADESH

OCTOBER 21, 1997

[M.M. PUNCHHI AND S.P. KURDUKAR, JJ.] B

Penal Code, 1860 :

Section 149-Common object-Determination of-Brutal murder ofA-1 's
brother whose head was severed prior to the mass murder in the instant C
case-Manner of assault and the mode of brutality in the present crime
indicates that common object of the unlawful assembly was not only to
commit murder of those who were suspected to have committed murder of A-
l's brother but also to commit mass murder to take revenge against their
family members-Jn these circumstances the plea of some of the accused D
persons that they had nothing to do with the murders of A-l's brother not
sustainable-Unlawful assembly could develop a common object on the spur
of the moment to commit massacre.

Criminal Procedure Code. 1973:
E
Sections 154 and I 57-FIR-Delay in sending a copy to Magistrate-
Held, would not demolish the other positive and credible evidence on record--
Would only show carelessness on the part of the police.

Ante-timed FIR-FIR lodged at 9.05 p.m. with the police station located
at a distance of I 5 kms from the place of occurrence and the inquest report F
prepared on the following day-Non-mention of title of crime in the inquest
report-Police reaching the place of occurrence at I lp.m.-Held, such minor
omission is nothing but a bona fide error or casual approach on the part
of investigating agency which does not affect the substratum of the
prosecution story.
G
Criminal Trial :

Death Sentence--When justified -Accused persons forming unlawful
assembly to take revenge for the murder of A-1 's brother whose head was
severed-Mass murders offive committed in an extremely brutal, grotesque,
531 If
532 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A diabolical, revolting and dastardly manner-Three heads were severed and
an innocent boy of 10 years roasted alive-Accused persons first immobilized
three victims by firing on non-vital part and then severing their heads-
Accused taking out victory procession with three heads by raising slogans-
Held, the case squarely falls within the ambit of rarest of rare cases and
B hence death penalty justified in respect of A-1 and five other co-assused-
Penal Code, 1860-Sections 3021149-Sentence-Rarest of rare case-Death
penalty.

Death Sentence-Commutation of-Mass murder-A-6, member of the
unlawful assembly having common object to commit mass murders-
C Prosecution alleged that A-6 fired from his gun which hit a boy of 10 years
who fell down-Other accused threw him into the fire-No other role
attributed to A-6-Dead body of the boy totally charred-No injury found on
his body-No pellet recovered from the dead body or from the ashes-Held,
there being no conclusive evidence that A-6 caused firearm injury to the
deceased boy, the High court was not justified in awarding him extreme
D penalty of death-Sentence commuted to imprisonment for life-Penal Code,
1860-Sections 3021149.

Witnesses-Related witness-Only close relatives of the deceased giving
evidence-No independent witnesses examined-Held, such evidence cannot
E be discarded on ground of their relationship with deceased-llowever, the
Court must scrutinize their evidence with care and caution--ln view of
common tendency of outsiders not to get themselves involved in a criminal
case, it would be quite natural that no independent witness would come
forward to assist the prosecution in a case of brutal mass murders-Penal
Code, 1860-Sections 3021149.
F
The brother of A-1 (Ck) was suspected to have been murdered by two
brothers of D-1. In revenge the present crime has been committed by 24
accused persons in which five persons were murdered including a child of 10
years who was roasted alive. The accused persons formed an unlawful
G assembly whose common object was not only to commit the murders of SP
and RG but also to commit the mass murders of family of D-2 as they ')Vere
under the belief that SP and RG were hiding and taking shelter in the house
of D-2. The accused persons first fired at D-1, injured him and thereafter
opened the door and searched for RG and SP. D-1 was immobilized by causing
a gun shot injury. D-2 came out of his room. He was fired at on a non-vital
H part, immobilized and thereafter the accused persons assaulted him with
SHIV RAM v. STATE OF U.P. 533
Banka, A-2, A-4 and A-13 held him facilitating A-1 severe his head. The A
accused did not stop there but thereafter they fired at D-4 and assaulted him
with Bankas A-2, A-4 and A-13 caught hold of him and A-1 severed his head.
D-3 a young boy of 10 when came out of the room which was then set on fire,
was bodily lifted and A-5 and A-8 threw him into the smoldering fire. He was
roasted alive. D-5 who was returning from the market was fired at and was B
given the same cruel treatment by severing his head. This only shows that
they were thirsty to severe the heads from the alive but injured bodies in order
to take revenge of the murder of Ck. All the three heads were put together in
a piece of cloth and a victory procession was taken out by accused. PW-1 along
with injured D-1 (since deceased) went to the Police station located at a
distance of 15 kms and filed the FIR After investigation charge sheet was C
filed against 24 accused persons. Out of 24 accused, Trial Court convicted
15 under Section 302 read with Section 149 Penal Code. Trial Court awarded
life imprisonment to A-3, A-6, A-7, A-8, A-11, A-12, A-20, A-21, A-22, A-23,
and A-24 and death sentence to A-1, A-2, A-4, and A-13. On appr.al, High
Court enhanced the sentence of life imprisonment to death sentence in respect D
of A-5, A-6 and A-8. Order of acquittal in !"espect of A-14, A-15, A-16, A-17,
A-18 and A-19 were reversed by the High Court and they were convicted under
Sections 148, 436, 449, 201, 302/149 IPC and awarded life imprisonment.
Hence these appeals.

Partly allowing the appeal, this Court E
HELD : I. Taking the prosecution case as it is, if the object of the
unlawful assembly was to take revenge upon RG and SP and after coming to
know that they were not available at the house of D-5 and D-4, there was no
reason for the accused persons to fire on the victims indiscriminately; to catch
hold of the four victims one by one; severe the heads of three persons and F
keep them together in a piece of cloth; and threw D-3 into the smoldering
fire. D-3 was totally innocent and was hardly of an age to understand the
rivalry between the parties to take side of one or the other. He was thrown
into the fire and roasted alive. Injuries sustained by the deceased persons
unmistakably indicated that it could not be the job of handful of persons. It G
was preplanned and well thought of design to commit genocide. It is in this
context if one reads the evidence of P. W. 1 and P. W. 2, there is no manner of
doubt that the accused persons formed an unlawful assembly and the object of
that assembly was not only to take revenge against RG and SP but also to
take revenge upon the family members ofD-5 as RG and SP were related to
D-5 and the accused persons were under the belief that the victims were giving H
534 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A shelter to them. All the appellants formed an unlawful assembly with an object
to take revenge against RG and SP and also to commit mass murders in that
process to prove the supremacy and create a terror in the minds of the family
members of D-5. The occurrence in question was full of revenge which was
deep-rooted i.n the minds and action of the accused persons and they were
B determined to take revenge in the same manner in which Ck was murdered.
There is no difficulty in holding that the unlawful assembly could develop a
commC>n object on the spur of the moment to commit the massacre of the
family ofD-5. There is no reason whatsoever to differ from the findings of
the Court below that the common object of the unlawful assembly was to
commit the mass murders of the family members ofD-5. There is also another
C angle to judge the common object of the unlawful assembly in the present
crime and that is the mode of brutality. Ck was alleged to have been murdered
by RG and SP, the trial of which is pending. The manner in which Ck was
done to death and his head was severed, the accused wanted to take revenge
in the same manner and for this reason the modus operendi adopted by them
was to cause firearm injuries to these three persons on non-vital parts of the
D bodies so that they would be immobilized and then cause 'Banka' injuries
and at the end to severe their heads. Only one gun shot would have been
sufficient to cause the death of four victims as the assailants were standing
at a close range but that could not have satisfied the ego and vengeance because
they wanted to severe the heads of these three victims when they were lying
E !mmobiiized due to injuries. [551-A-G; 552-A-B]

Shambhu Nath Singh v. State of Bihar, AIR (1960) SC 725; Bhudeo
Manda/ v. State of Bihar, [1981) 2 SCC 755 and Raghubir Singh v. State of
Punjab, [1996) 9 SCC 233, distinguished.

F 2.1. The police reached the place of occurrence within a short time and
in fact the evidence of PW-14 (SI) would show that the wheels of investigating
machinery started moving the same night. The statements of some of the
persons were recorded during the same night. The inquest on the dead bodies
was carried out early in the morning. There is nothing in the evidence of
G PW-14 (SI) to indicate that he had ante dated all these documents to suit to
the complainant's version. There was no earthly reason for PW-14 (SI) to
implicate and spreacl the net so wide as contended for the accused to arraign
24 accused persons in the present crime. It is true that the complainant at
the relevant time was posted at a far off place but he testified that he had come
to village Bon two days' leave as he had not come till then to his village after
H he joined the service. The explanations given by the witness were right in
SHIVRAMv. STATEOFU.P. 535
accepting his presence at the time of occurrence. It is also true that there A
was delay in forwarding the copy of the FIR to the Ilaqa Magistrate but that
circumstance would not demolish the other positive and credible evidence on
record. This would only show how in such a serious crime the investigating
agency was not careful and prompt as it ought to be. [548-G-H; 549-A-C]

2.2. If really the complaint was not lodged at 9.05 P.M. the police could B
not have reached the place of occurrence at 11.00 P.M. Such minor omission
is nothing but a bona fide error or casual approach on the part of the
investigating agency which does not affect the substratum of the prosecution
story. (549-E)

2.3. D-1 was not traced for the whole night and only on the following C
day he appeared and was admitted in the hospital where he died after 17 days
due to septicemia. The contention that neither D-1 nor the complainant ever
went to the police station to lodge a complaint at 9.05 P.M. and this complaint
was manufactured at a later stage with the connivance of polic.:, has some
substance because of the fact remains that D-1 was injured. (549-F-G] D
3.1. The accused persons formed an unlawful assembly and its common
object was not only to commit the murders of SP and RG but also to commit
the mass murders of family of D-2 as they were under the belief that SP and
RG were hiding and taking shelter in the house ofD-2. The accused persons
first fired at D-1, injured him and thereafter opened the door and searched E
for RG and SP. D-1 was immobilized by causing a gun shot injury. D-2 came
out of his room. He was fired at on a non-vital part by immobilizing him and
thereafter the accused persons assaulted him with Banka; A-2, A-4 and A-13
held him facilitating A-1 severe his head. The accused did not stop there but
thereafter they fired at D-4 and assaulted him with Bankas. A-2, A-4 and A-
13 caught hold of him and A-1 severed his head. D-3 a young boy of 10 years F
when came out of the room which was then set on fire, was bodily lifted by and
A-5 and A-8 who threw him into the smoldering fire. He was roasted alive. D-
5 who was returning from the market was fired at and was given the same
cruel treatment by severing his head. This only sho~s that they were thirsty
to severe the heads from the alive but injured bodies in order to take revenge G
of the murder of Ck. All the three heads were put together in a piece of cloth
and a victory procession was taken out by the accused. A simple question
which requires to be considered is as to whether the conscience of a society
was not shocked to see such ghastly and brutal murders. On drawing a final
balance sheet of the aggravating and mitigating circumstances after giving
due consideration to the rival contentions put forth by the six condemned H
536 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A prisoners (A-1, A-2, A-4, A-5, A-8 and A-13), justification clearly leans in
favour of death sentence to each of these six condemned prisoners. Sentence
of life imprisonment to these six accused persons would be totally inadequate
in the facts and circumstances of this case. The proved facts of this case
unmistakably indicate that the present case squarely falls within the ambit of
B "rarest of rare case". (557-B-F; H; 558-A]

Bachan Singh v. State of Punjab, [1980] 2 SCC 684; Machhi Singh_v.
State ofPunjab, [1983] 3 SCC 470 and Allaudin Mian v. State ofBihar, [1989]
3 sec 5, relied on.

3.2. In the instant case, after giving due consideration to the rival
C contentions as regards the six condemned prisoners, this Court is of the
considered view that justification clearly leans in favour of death sentence to
each of the condemned prisoners. Totality of circumstances outweigh the
mitigating circumstances. Sentence of life imprisonment would be totally
inadequate in the facts and circumstances of this case. The proved facts of
D this case unmistakably indicate that the present case squarely falls within
the ambit of "rarest of rare" case. Five murders were committed in an
extremely brutal, grosteque, diabolic, revolting and dastardly manner which
would arou~e intense and extreme indignation of the community. Award of
lesser punishment to these six accused persons would disintegrate the rule
of law upon which the edific of our civilized society stand.[557-H; 558-A-BJ

4. A-6 was awarded iife imprisonment by the Triai Court whereas on
appeal by the State the High Court enhanced the sentence of life imprisonment
to death. The reason given by the High Court is that some of the accused
persons who have been awarded death sentence formed one group which must
include A-6 who had played an identical role and, therefore, there was no
F justification to award him lesser sentence. The role attributed to A-6 as stated
by both the eye witnesses was that he fired from his gun which hit D-3 (a boy
of IO years of age) whereupon he fell down. Thereafter A-8 and A-5 threw
him into the smoldering fire. No other role was attributed to A-6 as far as D-
3 is concerned. Doctor :who conducted the autopsy on the dead ·body of D-3
G could not find any pellet in his body. The prosecution also could not collect
the evidence to show that any pellet was recovered from the ashes. The dead
body ofD-3 was ttJtally charred and, therefore, doctor could not find any injury
·on his dead body. It is in these circumstances that A-6 could not be bracketed
with the other accused person who have been awarded death sentence. A-6 is
entitled to a different treatment for want of conclusive evidence that he has
H caused firearm injuries to D-3. This finding by itself would not absolve A-6
SHIV RAM v. STATE OF U.P. 537
from his culpability in the present crime with the aid of Section 149 IPC as A
regards other murders. His presence was proved beyond every reasonable
doubt at the time of occurrence. He was a member of the unlawful assembly
having a common object to commit the murders in question and in prosecution
thereof used his firearm along with the other accused who were armed with
fire arms. In view of these proved facts the death sentence awarded to A-6 is B
not proper and instead he must fall in the group comprising of accused/
appellants who used the fire arms and have been awarded life imprisonment.
This Court accordingly converts the death sentence awarded to A-6 to life
imprisonment without upsetting his conviction and sentence on other counts.
[554-D-F; 555-A]

5.1. Nowadays there is a common tendency that no outsider would like
c
to get involved into criminal case much less in the crime of present magnitude
and, therefore, it was quite natural that no independent witness would come
forward to assist the prosecution. It is well settled that the evidence of witnesses
cannot be discredited only on the ground that they are close relatives of the
deceased persons. All that is required in such a situation is that the Court D
must scrutinize the evidence of such witnesses with utmost care and caution.
The magnanimity of the present crime and nature of prosecution evidence
had put this Court on guard to appreciate the evidence of these two eye
witnesses with utmost care and caution. The evidence of these two witnesses
is absolutely straightforward, unblemished and without any infirmity. The FIR E
which was lodged within four hours, naming all the accused also lends
.
' assurance to the conviction that the evidence of these two witnesses is
trustworthy and cannot be discarded. (547-H; 548-A-C)
5.2. The evidence of PW-I finds corroboration from the Fm which was
lodged at 9.05 p.m. (within four hours of the occurrence). The complaint was
written after the incident was over. The Fm came to be registered against 24 F
accused persons. It needs to be noted that PW-I in his complaint had named
persons with the weapons which they were carrying and the manner in which
they assaulted five persons who lost their lives in the present crime. The FIR
fully corroborates the evidence of PW-I. The evidence of PW-I does not suffer
from any infirmity. This Court also scrutinized the evidence of PW-2 and it G
corroborated in all material particulars the evidence of PW-I. The trial Court
as well as the High Court had scrutinized their evidence very carefully and
accepted the same as truthful. This Court concurs with Courts below as
regards appreciation of the evidence of those two witnesses. 1547-C-E)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 715- H
538 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A I6ofl997.

From the Judgment and Order dated 28.1.97 of the Allahabad High Court
in Cr!. A. No. 523-24 of 1995.

WITH
B Criminal Appeal No. 593/97.

A.K. Ganguli (A.C.), Sushi! Kumar, Dr. N.M. Ghatate, V. Krishnamurthy,
Mrs. Rekha Pandey, P.R. Kovilan, S.M. Rai, B.M. Sharma, T.N. Singh, Mrs.
Sushila Shukla (A.C.), Mukesh K. Giri, Shakil Ahmed Syed, C.D. Singh and
A.S. Pundir for the appearing parties.
c The Judgment of the Court was delivered by
S.P. KURDUKAR, J. A primitive theory of punishment, "limb for limb;
eye for eye; ear for ear; etc., etc.," prevalent in the uncivilized society was
put into action in letter and spirit in the present time. The magnitude of the
present crime needs no elaboration. In the present crime five deaths were
D involved in which a boy of ten years had been assaulted and thrown into the
fire and roasted alive; heads of three human bodies were severed and the 5th
who sustained firearm injuries died in the hospital after about 17 days due
to septicaemia. Such is the gravity of the crime. 24 persons were arraigned
at the trial as accused and at the conclusion of the trial, the trial Court
E awarded death sentence to four accused, life imprisonment to twelve accused
and acquitted seven accused. The trial Court made a reference under Section
366 Cr. P.C. ; the convicted accused filed the appeals including those who had
been awarded capital punishment; the State of U .P. also filed two appeals; one
against the order of acquittal of seven accused and another for enhancement
of sentence in respect of other accused. The batch of criminal appeals was
F heard together by the High Court of Allahabad. The High Court confirmed
the death sentences awarded to four accused and in addition thereto while
allowing the State appeal for enhancement, awarded the death sentence to
three accused. The State appeal filed against the order of acquittal had been
allowed and they were convicted for various offences including substantive
G offence under Section 302 with the aid of Section 149 !PC and sentenced each
one of them to suffer life imprisonment. The particulars of the accused, the
weapons used during the assault and details of the deceased will be referred
to shortly. These criminal appeals have been filed in this Court by the
accused/appellants challenging the judgment and order of conviction and
sentence passed by the High Court on 28.1.1997. All these appeals were heard
H together. Since they arise out of a common judgment, they are, therefore,
SHIV RAM v. STATE OF U.P. (S.P. KUR[)UKAR, J.] 539
being disposed of by this judgment. A
(2) Before we advert to the prosecution case we may set out the
particulars of the accused/appellants since most of them come from the same
family and some are close relatives. The accused/appellants will be referred
to in these appeals by their original description as in the trial Court :
B

Jodhey Raghubar (A-9)

Chandrika Shyam Sheo Ram Lalla Pattu
Passi (died) Manohar (A-2) (A-3) (A-7)
(A-1) c
,,
,, ,,
,, ,,

Harish Rajender Ravindra Suresh Prakash
D
(A-4) (A-6) (A-5) (A-13) (A-8)

Dhakan (A-18) is nephew of A-1, Nandlal (A-20) is uncle of A-1,
Srikrishna (A-19) is son ofNandlal (A-20). Sriram (A-14) and Rajaram (A-15)
are brothers and sons ofBhawan Passi. Rampa] (A-16) and ltwari (A-17) are
brothers and sons ofBharosey. Rakesh (A-11) and Rajesh (A-12) are brothers E
and sons of Prem Giri (A-10) who is now dead. Sankatta (A-22) and Mathura
(A-21) are brothers. Dorey (A-23) is related to A-22; Rampa! Verma is A-24.
(3) The deceased persons were also closely related to the complainant
Mahendra Kumar (P.W. I) as shown below :
Bhuwaneshwari (deceased)
F

Sukhdarshan
(deceased)

Mahendra Kumar San deep G
(P.W.l) (deceased)
(4) In addition to the above list of deceased. persons from one family,
Surendra (since deceased) was cousin of P.W. !., Kamlesh (since deceased)
was a relative of P.W. I. Sheo Pal and Ram Gulam are the relatives of
Sukhdarshan (since deceased). H
540 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.

A (5) The moiive of the present crime was sought to be traced by the
prosecution from the murder of Chandrika Passi, who was a brother of A-1
and resident of village Bajarakha. This murder took place two and a half
months prior to the present occurrence that took place on 23.6.1990. The
murder of Chandrika was alleged to be brutal one as his head was severed.
The family members of Chandrika were suspecting that Sheo Pal and Ram
B Gulam, the relatives of Sukhdarshan had committed the said murder and,
therefore, the criminal case against both of them for an offence of murder is
stated to be pending. The accused laboured under a belief that Sheo Pal, Ram
Gu lam and his relatives were responsible for the murder of Chandrika and it
was this belief which gave cause to nurture enmity against the family members
C of Bhuwaneshwari, Sheo Pal and Ram Gulam. The Second reason for enmity
sought to be alleged by the prosecution was that Prem Giri (A- I 0) (since
deceased) who was residing in an adjacent house to Bhuwaneshwari, had an
axe to grind against the family of latter as a civil dispute in regard to the
property belonging to "Thakurji Trust" was pending between them.
Bhuwaneshwari obtained the decree against Prem Giri in the trial court but we
D are told that the appeal filed by Prem Giri is pending in the higher court.

(6) The occurrence in question took place on 23.6.90 at about 5.00 p.m.,
Mahendra Kumar (P.W.1) lodged the FIR at about 9.05 p.m. at Mitauli Police
Station situated at a distance of 15 km. from the place of incident. In his
E complaint Mahendra Kumar (P.W.1) had disclosed all the 24 named accused
along with 8 to 10 unidentified persons who had come to the house of
Bhuwaneshwari. He then stated that at that time he and Surendra (deceased)
were sitting near the couldron and his father Sukhdarshan (deceased) was
sitting near the Kolhoo. All the accused persons, armed with deadly weapons,
reached near the Kolhoo. A-1, A-2, A-4 and A-13 were armed with Bankas,
F A-10 was carrying a DBBL licensed gun, A-3 and A-16 were armed with SBBL
•
guns, A-20 was carrying country made SBBL gun and the remaining accused
were armed with country made pistols and guns. The accused persons when
reached near the Kolhoo, started abusing Sukhdarshan and Bhuwaneshwari
(both since deceased) and were also giving bad words on other members of
G their family. Then all the accused demanded that Ram Gulam and Sheo Pal be
called and they would show how both could remain alive. Saying so all the
accused persons chased Sukhdarshan who out of fear entered into the house
of Shambhudayal and raised an alarm. Kamlesh (since deceased) s/o
Shambhudayal and Shakuntla after allowing Sukhdarshan inside the house
tried to shut the door but the accused inserted the barrel of the gun through
H the door and fired which hit Kamlesh who fell down.
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.) 541

(7) The miscreants then opened the door and after entering into the A
house fired at Sukhdarshan, who fell down in the courtyard. A-2, A-4 and A-
13 thereafter caught hold of the hands and feet of Sukhdarshan whereupon
A- I assaulted him with Banka and severed his head and kept it in a piece
of cloth. The assailants then surrounded the house of Mahendra Kumar
(P.W.l) the complainant, opened the door, demolished the walls and entered B
into his house. Family members ofMahendra Kumar (P.W. 1), namely, Goura
the grand mother of Surendra, and his wife Manorama, were inside the house,
they requested them not to assault any of the family members. Surendra
(since deceased) had a licensed gun. He immediately closed and bolted the
door of his room from inside. Since the door could not be opened, A-1 told
his associates to sprinkle the diesel on the house and set it on fire. The C
miscreants then took out the diesel from the drum and sprinkled it on the
Chappar (root) and also poured it into the room through a hole where
Surendra was hiding and then lit the fire to chappar and asked Surendra to
come out otherwise all his family members would be done to death. Sandeep
(since deceased) a boy aged about I 0 years, was the younger brother of the D
complainant, .came out and started abusing the accused persons. A-6 then
< fired from his gun on Sandeep causing injuries to him and thereafter A-6 and
A-8 lifted Sandeep and threw him into the fire. Sandeep was burnt alive and
died in the said fire. This was the second casualty in the course of the attack
levelled by the accused on the family members of the complainant. Surendra
(since deceased) then came out of the room and tried to run away as by that E
time the fire had engulfed his house. When Surendra was running away he
was fired at and because of the fire arm injuries he fell down in the kitchen.
Thereafter A-2, A-4 and A-13 caught hold of the hands and legs ofSurendra,
facilitating A-I to assaalt him with Banka. A-I then severed the head of
Surendra and kept it in the same piece of cloth where the head of Sukhdarshan
was kept. It was then stated that in the meantime Bhuwaneshwari, the grand F
father of Mahendra Kumar (P. W. l) who was returning from Bajarkha market,
-(
on seeing the accused in action, tried to rush towards his house but he was
also not spared and caused him fire arm injuries. A-2, A-4 and A-13 then
caught hold of the hands and feet of. Bhuwaneshwari and thereafter A-1
assaulted him with Banka and severed his head and kept it in the same piece G
of cloth where two heads already kept.· The accused persons thereafter went
in search of Sheo Pal but he was not found in the house. The accused
persons then stated that Sheo Pal was the person who had committed' the
murder of Chandrika Passi and, therefore, he must be traced. Seeing the
ghastly murders of four persons and gun shot injuries on Kamlesh, the family
members ofMahendra Kumar (P.W.l) requested the accused persons to spare H
542 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A other family members whereupon A-1 told his associates that let the remaining
members of the family be spared to mourn the deaths of their dear ones. A·
7 then took away the licensed gun of Sukhdarshan. ·,

(8) It was then stated in the complaint that due to fire the house of
Surendra and articles therein were completely burnt and reduced to ashes.
B Such a ghastly attack continued for a period of one and a half hour. Although
it was a weekly market day of village Bajarkha and so many persons had
gathered in the market but nobody dared to come to the rescue. The brutality
committed by the accused persons, according to the complainant did not rest
at that but the accused persons then took out a victory procession and raised
C the slogans 'Shyam Manohar Zindabad', 'Nandlal and Prem Giri Zindabad';
Lakpal Bhaiya Zindabad'' and thereafter went towards the house of Chandrika
Passi (since deceased).

(9) Mahendra Kumar (P.W. I) then immediately prepared a complaint
D containing aforesaid facts and took injured Kamlesh in a tractor to the police
station which was at a distance of 1S kms. They handed over the complaint
to SI Surendra Kumar Pandey who registered the FIR Ex. Ka·l at about 9.05
p.m. on the same evening. After registering the crime SI proceeded to the
place of occurrence but by that time it was too late in the night and, therefore,
he could not hold the inquest on the dead bodies but, however recorded the ·
E statements of various persons during late night hours. On the next day in the
early morning he held the inquest on the dead bodies of Sukhdarshan (Ex.
Ka-15), Bhuwaneshwari (Ex. Ka-22), Sandeep (Ex. Ka-26) and Surendra (Ex.
Ka-29). The dead bodies were then sent for post-mortem examination. Other
formal panchnamas etc., were carried out on 24.6.90. Kamlesh, who had
sustained the gun shot injuries was admitted in the hospital on 24.6.1990 at
F about 8:00 a.m., who later on succumbed to the injuries on 10.7.90. The
inquest report is at Ex. Ka-23. Eight empty cartridges, empty drum of diesel
and the ladder were seized from the place of occurrence. During investigation
the accused persons came to be arrested and while in custody A-4 made a
voluntary disclosure statement under Section 27 of the Evidence Act which
G came to be recorded and it led to the recovery of two severed heads of
Sukhdarhan and Bhuwaneshwari. A-1 after his arrest also made a statement
which led to the recovery of a gun from the well. After completing the
necessary investigation a charge-sheet came to be filed against 24 accused
persons for offences punishable under Sections 302, 147, 148, 307,436,452,404
read with Section 149 !PC. Shyam Manohar was separately charge-sheeted
H and tried under Section 25 of the Arms Act.
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.] 543

(10) The accused persons denied the charges levelled against them. A
They pleaded that they have been falsely implicated in the present crime due
to enmity with the witnesses as well as the police. A-1 further pleaded that
he was leaving separate from Chandrika who had a quarrel with him. He was
not doing any pairvi in the murder case of Chandrika. According to him
Lakpati and Sripal were leading the gange of decoits and the present crime B
might have been the handy work of this gange. A-11 pleaded that he had no
grudge against the family members of the complainant on account of civil
dispute. Bhuwandeshwari had obtained a decree against his father Prem Giri
but the appeal against the said judgment and decree is still pending in the
High Court. He has no concern with this dispute. He and his brother A-12
were living at Gola where their children were studying and they were not C
present at the time when the incident took place. A-1 in his defence examined
Sher Ali (D. W. I). The other three defence witnesses were examined on behalf
of A-11 and A-12. The appellants pleaded that they were innocent and t.1.ey
be acquitted. The charge-sheet was submitted against 24 accused persons
but however Prem Giri (A-10) died during the pendency of trial and, therefore, D
trial abated against him.

11. In order to bring home the guilt, the prosecution mainly relied upon
the evidence of two star witnesses who claimed to have seen the entire
occurrences. The eye witnesses were Mahendra Kumar s/o Sukhdarhan (P. W.
I) and Lallu Ram (P.W. 2) who was residing in the adjacent house ofShambhu E
Dayal, brother ofKamlesh (since deceased). Dr. S.K. Shukla (P.W. 3) conducted
the post mortem examination on the headless dead body of Surendra and also
on his severed head (Ex. K-3). Dr. A.K. Gupta (P.W. 8) held the autopsy on
the skulls of deceased Bhuwaneshwari and Sukhdarshan (Ex. K-6 and K-7
respectively) .. Dr. S.K. Tiwari (P. W. 9) conducted the autopsy on the dead
bodies of Sandeep, Bhuwaneswari and Sukhdarshan. Post Mortem reports are F
Exs. 8., 9, and 10 respectively. Dr. A.K. Srivastava conducted the autopsy on
the dead body ofKamlesh. Dr. A.K. Patni (P.W. 10) examined Kamlesh when
he was brought in an injured condition on 24.6.90 at 8.45 p.m. SI Surendra
Kumar Pandy (P.W. 14), the Investigating Officer with the assistance of two
other Sis completed the entire investigation. In addition to the above ocular G
evidence the prosecution also relied upon the evidence relating to the recovery
of various incriminating articles including the recoveries of three heads of
Bhuwaneshwari, Sukhdarshan and Surendra. As already indicated above the
defence also examined four witnesses.

(12) The First Additional Sessions Judge, Kheri on careful scrutiny of H
544 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A oral and documentary evidence on record convicted A-1, A-2, A-3, A-4, A-
5, A-6, A-7, A-8, A-11, A-12, A-13, A-20, A-21, A-22, A-23, and A-24 for the
offences punishable under Sections 302, 302/149, 404, 148, 436, 449 and 201
!PC. A-I was also convicted under Section 25 of the Arms Act. After hearing
the parties and their respective counsel the trial court considered the complicity
and culpability of A-I, A-2, A-4 and A-13 and the common object shared by
B them under Section 14 !PC. Shyam Manohar (A-1) was held responsible for
committing the murders of Surendra, Sukhdarshan, Bhuwaneshwari and for
murders ofKamlesh and Sandeep with the aid of Section 149 !PC. Suresh (A-
13), Shivram (A-2) and Harish (A-4) were held liable for committing murders
of Surendra, Sukhdrashan, Bhuwaneshwari and Sandeep under Section 302/
C 149 !PC, and accordingly each one of them was awarded the extreme penalty
of death sentence. For other offences they were awarded various terms of
sentences. As regards A-3, A-5, A-6, A-7, A-8, A-11, A-12, A-20, A-21, A-
22, A-23, and A-24 the trial court inflicted sentence of life imprisonment on
each of these accused under Section 3021149 !PC and also various terms of
sentences on other counts. Substantive sentences were ordered to run
D concurrently. The Additional Sessions Judge accordingly made a reference
under Section 366 Cr. P.C. to the High Court for confirmation of the death
sentences. The trial court however acquitted A-9, A-14, A-15, A-16, A-17, A-
18, and A-19 of all the charges. The convicts including the condemned
prisoners preferred appeals to the High Court. The State Government also
E preferred appeals to the High Court for enhancement of sentences as also
against the order of acquittal in respect of seven accused persons. All these
appeals were heard together by the High Court of Allahabad Bench at Lucknow
and vide its impugned judgment dated 28.1.1997 dismissed the appeals filed
by the convicts and the condemned prisoners and partly allowed the appeal
filed by the State and enhanced the sentence of life imprisonment to death
F sentence in respect of Prakash (A-8), Rajendra (A-6) and Ravinder (A-5); the
order of acquittal in respect of A-14, A-15, A-16, A-17, A-18 and A-19 was
reversed and they were convicted under Sections 148, 436, 449, 20 I, 302/149
!PC and each of them has been sentenced to life imprisonment and various
other terms of sentences on other counts. The order of acquittal of Raghubar
G (A-9) has been upheld. The net result, therefore, is out of 24 charge sheeted
accused Prem Giri died, Raghubar (A-9) stood acquitted, 7 accused have been
awarded extreme penalty of death and remaining 15 accused have been awarded
life imprisonment for committing five murders. The sentences awarded to
other accused persons were upheld by the High Court vide its judgment and
order dated 28 .1.1997. 1t is against this judgment and order passed by the
H High Court, the appellants have preferred these criminal appeals to this Court.
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.) 545
Since 7 accused person have been awarded death sentence and they have A
filed the appeals through jail, we thought it fit in the interest of justice to
appoint a Senior counsel to assist the court. Accordingly Mr. A.K. Ganguli,
Sr. Counsel was appointed as an amicus curiae to represent the condemned
prisoners. The other Criminal Appeal Nos. 721-24/97 and 726/97 have been
preferred by some of the accused persons, who were represented by Shri
Sushi! Kumar, Learned Sr. Counsel Shri Shakil Ahmed Syed, Learned Counsel B
also filed Criminal Appeal No. 593/97 on behalf of some of the accused/
appellants other than the condemned prisoners. The State was represented
by Dr. N.M. Ghatate, Learned Senior Counsel. All these appeals were heard
together, since they arise out of a common judgment.
c
( 13) At the outself it needs to be stated that counsel for the parties were

-
given full opportunity to represent their respective cases since seven accused
persons have been awarded capital sentence and other 15 accused/appellants
have been awarded sentence oflife imprisonment. We have carefully scrutinized
the oral evidence and other materials placed on record with the assistance. of D
the learned counsel for the parties and have also gone through the judgments
of the courts below.

(14) The very narration of facts given in the preceding paragraphs
would indicate the magnitude of the crime in question. The two eye witnesses
to the occunence are the dose relatives of the deceased. The prosecution E
sought to prove the motive against the accused in committing the present
crime. It is on this background we are required to scrutinize and appreciate
the evidence of the eye witnesses with utmost care and caution.

(15) The prosecution case substantially rested on the evidence of two F
eye witnesses, namely, Mahendra Kumar (P.W. 1) and Lallu Ram (P.W. 2).
Mahendra Kumar (P.W. !) is the son of Sukhdarshan (since deceased) and
grand son of Bhuwaneshwari (since deceased). Sandeep (since deceased)
was his brother and Surendra, another deceased was his cousin, Kamlesh
(since deceased) was a close relative.
G
Coming to the evidence of actual occurrence which took place on June
23, 1990 at about 5.00 p.m. it needs to be stated that a complaint was lodged
on the very same evening at about 9.05 p.m. in the police station at Mitauli
at a distance of 15 kms. from Bajarkha village. Mahendra Kumar (P.W. 1) in
his evidence testified that at about 5.00 p.m. all the 24 accused along with 8 H
546 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A to I 0 unidentified persons crune in the direction of Krunlesh's house. At that
-
time Mahendra Kumar (P.W. 1) and Surendra were sitting near the couldron
and Sukhdarshan was sitting towards the north of the Kolhoo. A- I, A-2, A-
4, and A-13, were armed with bankas, Prem Giri (A-10) (now dead) was armed
with a DBBL gun, A-3 to A-16 were armed with SBBL guns, A-20 was armed
with a country made SBBL gun and the remaining accused persons were
B armed with country made pistols and guns. He then stated that the accused
persons demanded that Rain Gulam and Sheo Pal be called and they wanted
to see how they would remain alive. The accused persons then chased
Sukhdarshan who ran and entered into the house of Shambhu Dayal and
raised an alarm. Shambhu Dayal and Shukuntala Devi (complainant's mother)
C took Sukhdarshan inside the house and tried to shut the door but one of the
accused inserted the barrel of the gun through door and fired which hit
Kamlesh Kumar. The accused then opened the door and fired at Sukhdarshan
who fell down in the courtyard, A-2, A-4 and A- 13 then caught hold of the
legs and hands of Sukhdarshan and thereafter A-1 assaulted him with Banka
and severed his head which he kept in a piece of cloth. The accused persons
D then surrounded the house of P.W. 1 and started demolishing the walls. They
asked Surendra to come out as he bolted the door of his room from inside,
A- I asked his associates to sprinkle the diesel on the chappar and also pour
it into the room and set it on fire. Accordingly some of the accused took the
diesel from the drum and one of them climbed up the chapter, with the help
E of a ladder, sprinkled the diesel on the chappar and also poured the same into
the room and thereafter the house was set on fire. Sandeep, the brother of
the complainant, aged about I 0 years, came out and abused the accused
whereupon A-6 fired at him as a result of which he fell down. A-5 and A-8
then lifted Sandeep and threw him into the fire. Sandeep was roasted alive.
The witness further testified that the house, wherein Surindra was hiding,
F when caught fire, he came out of the said house and tried to run away but
he was gun down. He fell down in the kitchen. A-4, A-2 and A-13 then
overpowered him by catching hold of his arms, feet and thereafter A-1 assaulted
him with Banka and severed his head and kept it in the srune piece of cloth
with the other head. The witness then stated that Bhuwaneshwari (since
G deceased), his grand father, who was returning from the weekly market, when
saw the accused persons in action came near and requested them not to kill
the frunily members whereupon he was fired at and thereafter A-4, A-2 and
A-13 overpowered him. A-1 then assaulted Bhuwaneshwari with Banka and
severed his head and kept it in the same piece of cloth where two heads were
already kept. He then stated that the accused persons made a search for Sheo
H Pal who was alleged to have taken part in committing the murder of Chandrika,
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.] 547
the brother of A-1, by severing his head but Sheo Pal could not be traced. A
P. W. I further stated that the accused persons were using the firearms freely
and created a terror. The incident continued. for one and a half hour. The
accused persons then carried the three heads with them in a procession
celebrating their victory and were shouting slogans "Shyam Manohar
Zindabad, Nandlal and Prem Giri Zindabad and Lakhapat Zindabad". Then B
they went to the house of Chandrika. The witness was cross-examined at
great length but the defence could hardly bring on record ·any material which
would discredit his credibility. The evidence of P. W. 1 finds corroboration
from the First Information Report which was lodged at 9.05 p.m. (within four
hours of the occurrence) at Mitauli police station. The complaint was written
after the incident was over. Mahendra Kumar (P.W. 1), Lallu Ram (P.W. 2) and C
Kamlesh then went in a tractor to lodge the First Information Report. The FIR
came to be registered against 24 accused persons. It needs to be noted that
Mahendra Kumar (P.W. I) in his complaint had named the accused persons
with the weapons which they were carrying and the manner in which they
assaulted five persons who lost their lives in the present crime. The FIR fully D
corroborates the evidence of P. W. I. The evidence of Mahendra Kumar
(P.W. I) does not suffer from any infirmity. We have also scrutinized the
evidence of Lallu Ram (P. W. 2) and it corroborates in all material particulars
the evidence ofMahendra Kumar (P.W. !). The trial court as well as the High
Court had scrutinized their evidence very carefully and accepted the same as_
truthful. We concur with the courts below as regards appreciation of the E
evidence of these two witnesses.

(16) Mr. A.K. Ganguli, Learned Senior Counsel appearing for the
condemned prisoners, Mr. Sushi! Kumar, Learned Senior Counsel and Mr.
Shakil Ahmed Syed, Learned Counsel appearing for the life convicts urged
that the conviction of the accused is based on the evidence of interested F
witnesses and the same be not accepted as truthful inasmuch as the presence
of these witnesses at the time of occurrence was extremely doubtful. It was
contended that 23.6.90 was a market day of Bajarkha village and these
witnesses also admitted that the market is at a distance of a furlong where
many villagers had come for purchases. The witnesses further admitted that G
many persons had gathered at the place of occurrence, if this be so it was
very much necessary for the prosecution to examine some independent
witnesses to lend assurance to the credibility of the evidence of these two
eye witnesses. These submissions do not impress us at all. Now a days it is
a common tendency that no outsider would like to get involved into criminal
case much less in the crime of present magnitude and, therefore, it was quite H
548 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A natural that no independent witness would come forward to assist the
prosecution. It is well settled that the evidence of witnesses cannot be
discredited only on the ground that they are close relatives of the deceased
persons. All that is required in such a situation is that the court must
scrutinize the evidence of such witnesses with utmost care and caution. The
magnanimity of the present crime and nature of prosecution evidence has put
B us on guard to appreciate the evidence of these two eye witnesses with
utmost care and caution. We have done this exercise and we are unable to
be persuaded to discard the evidence of these two witnesses on the grounds
urged before us. The evidence of both these witnesses in our considered
view is absolutely straightforward, unblemished and without any infirmity.
C The First Information Report which was lodged within four hours, naming all
the accused also lends assurance to our conviction that the evidence of these
two witnesses is trustworthy and cannot be discarded. The contentions of
the learned counsel for the accused, therefore, stand rejected.
/

(17) It was then contended by Mr. Sushi! Kumar that the claim of the
D complainant that he lodged the FIR at 9.05 p.m. is false. According to him if
the FIR was re~istered as alleged there was no reason whatsoever why the
copy thereof was not sent to the Illaqa Magistrate at the earliest opportunity.
As regards the contents of the FIR he urged that it was impossible for any
human being to write down the complaint with such details when four dead
E bodies were lying of which three were without heads in the house. The
contents of the complaint manifestiy suggest that it was an afterthought
exercise with the help of police or somebody to spread a wide net and involve
as many accused as possible to take revenge. He, therefore, urged that the
complaint lodged by Mahendra Kumar (P.W. 1) be treated a false document
and be not accepted for the purpose of seeking corroboration to the evidence
If of P.W. I. He also urged that the complainant at the relevant time was serving
at a different place and his claim that he had come on leave for two days was
totally a concocted plea. According to him the complainant was brought to
the village at a later point of time and the police had manipulated entire
prosecution story. We see no substance in any of these contentions for the
G simple reason that the police machinery reached the place of incident within
a short time i.e. at about 11 p.m. and in fact the evidence of SI Pandey (P.W.
14) would show that the wheels of investigating machinery started moving
during the same night. The statements of some of the persons were recorded
during the same night. The inquest on the dead bodies were carried out early
in the morning of June 24, 1990. There is nothing in the evidence of SI Pandey
H (P.W. 14) to indicate that he had ante dated all these documents to suit to
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.] 549
the complainant's version. There was no earthly reason.for SI Pandey (P.W. A
14) to implicate and spread the net so wide as contended for the accused to
arraign 24 accused persons in the present crime. To our mind it is only a
figment of imagination to contend that the investigation carried out by the
investigating machinery was ante dated at the instance of the complainant.
It is true that the compi~inant at the relevant time was posted at a far of place B
but he testified that he had come to the village Bajarkha on two days' leave
as he had not come till th~n to his village after he joined the service. This
explanation given by the witness is quite plausible and the courts below were
right in accepting his presence at the time of occurrence. It is also true that
there was a delay in forwarding the. copy of the FIR to the Jllaqa Magistrate
but that circumstance would not demolish the other positive and credible C
evidence on record. This would only show how in such a serious crime the
investigating agency was not careful and prompt as it ought to be.

( 18) It was then contended for the appellants that if really the incident
was reported at 9.05 p.m. then surely the inquest reports which were prepared D
on the following day must mention the title of the crime, But it was left blank
and, therefore, this omission was a serious infirmity and demolishes the very
substratum of the prosecution based on the First Information Report which
is a concocted document. At the first flush the argument appeared to us
attractive but on scrutiny and consideration of the materials on record we are
l!Habic to uccept !his '"-!brr1ission. If really the complaint was not lodged at E
9.05 p.m. then the police could not have reached at the place of occurrence
at I 1.00 p.m. Such minor omissi9ns is nothing but a bona fide error or casual
approach on the part of the investigating agency which does not affect the
substratum of the prosecution story. It was then urged that Kamlesh was
taken to the police station in an injured condition but he was not sent to the F
hospital for treatment. In fact Kamlesh was not traced for the whole night and
only on the following day he appeared and was admitted in the hospital where
he died after 17 days due to septicaemia. It was, therefore, urged that neither
Kamlesh nor the complainant ever went to the police station to lodge a
complaint at 9.05 p.m. and this complaint was manufactured at a later stage· G
with the connivance of police. We see no substance in this contention also
because the fact remains that Kamlesh was injured during the incident in
question. If he was not sent to the hospital for medical examination and
treatment by the investigating agency no fault could be found with the
complainant's evidence and the FIR (Ex. Ka- I). In these circumstances we see
no merit in all these contentions raised on behalf of the appellants. H
550 SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.

A (19) No serious arguments were advanced before us as regards the
cause of death of any of these five deceased persons. It was also not
seriously challenged that the finding of the courts below that Bhuwaneshwari,
Sukhdarshan, Surendra and Sandeep met with homicidal death during the
incident in question. Suffice it to mention that Bhuwaneshwari, Sukhdarshan
B and Surendra had sustained many incised injuries due to assault by Banka
on their vital parts in addition to the fire arm injuries. Sandeep according to
the prosecution was first fired at by A-6 and then he was thrown into the
smouldring fire. The injuries caused on his dead body either by fire arm or
by banka could not be detected in the post-mortem report for the obvious
reason that his body was completely charred. The autopsy report of San deep
C also did not indicate that any pellet was found embedded in the body or any
pellet could be recovered from the place where he was burnt to death. This
fact has got a relevance when we consider the death sentence awarded to
Rajendra (A-6). After going through the medical evidence on record we have
no manner of doubt that these four persons met with the homicidal deaths.
They were brutally murdered. As far Kamlesh (since deceased) was concerned
D it was proved beyond any pale of doubt that he was the first person to
sustain gun shot injuries and died in the hospital due to septicaemia which
was the result of injuries on his person during occurrence in question.

(20) Shri Sushil Kumar, Learned Senior Counsel appearing for the life
E convicts/appellants urged that they were roped-in in the present crime with
the aid of.Section 149 IPC. According to him the common object of the
unlawful assembly as alleged by the prosecution was to take revenge against
Ram Gulam and Sheo Pal who alleged to have committed the murder of
Chandrika by severing his head. If this was the common object of the unlawful
assembly it could not be said that these life convicts/appellants assuming to
F be the members of such an unlawful assembly shared the same common
object which the assailants of five victims had and in pursuance thereof
committed the murders in question. He urged that these convicts/appellants
had nothing to do with the murder of Chandrika and, therefore, theory of
revenge against any of the members of the complainant's family had no basis.
G In the absence of specific proof of common object of the unlawful assembly
to commit the murders in question he urged that life the convicts/appellants
cannot be convicted with the aid of Section 149 !PC. In support of this
contention he drew our attention to three decisions of this court: (i) Shambhu
Nath Singh and Others v. State of Bihar, AIR (1960) SC 725 (ii) Bhudeo
Manda! and Others v. State of Bihar, [ 1981) 2 SCC 755 and (iii) Raghubir
H Singh and Others v. State ofPunjab, [1996) 9 SCC 233. We have very carefully
SHIV'RAM v. STATE OF U.P. [S.P. KURDUKAR, J.)
.. 551 A
gone through these decisions and in our considered view in the facts and
circumstances of this case, the ratio laid down in any of these decisions will
have no application. Taking the prosecution case as it is if the object of the
unlawful assembly was to take revenge upon Ram Gulam and Sheo Pal and
after coming to know that they were not available at the house of
Bhuwaneshwari and Surendra (both since deceased), there was no reason for B
these accused persons to continue to fire on these victims indiscriminately;
to catch hold of the four victims one by one; severe the heads of three
persons and keep them together in a piece of cloth; and threw San deep into
the: smouldering fire. What sin the young boy of I 0 years, Sandeep had
committed so that he also could not have been spared from the assault? He
was totally innocent and was hardly of an age to understand the rivalry C
between the parties to take side of one or the other. He was thrown into the
firn and roasted alive. Injuries sustained by the deceased persons unmistakably
indicated that it could not be the job of handful of persons. It was pre-
planned and well thought of design to commit genocide. It is in this context
if we read the evidence of P.W. I and P.W. 2 we have no manner of doubt
tha:t the accused persons formed an unlawful assembly and the object of that D
assembly was not only to take revenge against Ram Gulam and Sheo Pal but
also to take revenge upon the family members of Bhuwaneshwari as Ram
Gulam and Sheo Pal were related to Sukhdarshan (since deceased) and the
acc:used persons were under the belief that the victims were giving shelter to
them. All the appellants in our considered view formed an unlawful assembly E
with an object to lake revenge against Ram Gulam and Sheo Pal and also to
commit mass murders in that process to prove the supremacy and create a
terror in the minds of the family members of Bhuwaneshwari. The occurrence
in question was full of revenge which was deep-rooted in the minds and
action of the accused persons and they were determined to take revenge in
the same manner in which Chandrika was murdered. Apart from this we see F
no difficulty in holding that the unlawful assembly could develop a common
object on the spur of moment to commit the massacre of the family members
ofBhuwaneshwari. We, therefore, see no reason whatsoever to differ from the
findings of the courts below that the common object of the unlawful assembly
was to commit the mass murders of the family members of Bhuwaneshwari. G
There is also another angle to judge the common object of the unlawful
assembly in the present crime and that is the mode of brutality. Chandrika was
alleged to have been murdered by Ram Gulam and Sheo Pal (trial of both is
pending). The manner in which Chandrika was done to death and his head
was severed the accused wanted to take revenge in the same manner and for
this reason the modus operandi adopted by them was to cause firearm injuries H
552 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.
,
A to these three persons on a non-vital part of the bodies so that they would
be immobilized and then cause Banka injuries and at the end to severe their
heads. Only one gun shot would have been sufficient to cause the death of
four victims as the assailants were standing at a close range but that could
not have satisfied the ego and vengeance because they wanted to severe the
B heads of these three victims when they were lying immobilized due to injuries.
It is for this reason we have started our judgment by saying that the accused
persons had in the letter and spirit followed the primitive theory of punishment.

(21) Learned counsel appearing for the appellants then contended that
there is no material on record to hold that the accused persons had any
C enmity with the family of the deceased. The prosecution came forward with
two fold motive (i) civil litigation between Prem Giri and Bhuwaneshwari as
regards the "Thakurji's Trust" and its property; and (ii) the accused persons
belonged to the party of Shyam Manohar. The first part of motive, the civil
litigation between Prem Giri and Bhuwaneshwari ended in favour of
Bhuwaneshwari in the first court and the appeal of Prem Giri is pending before
D the Orissa High Court. In a village such disputes often assume importance
out of proportion. It is, therefore, not surprising that Prem Giri joined the party
of A-1 to settle his ego and score also. As far as the second limb of the
motive is concerned it is the case of the prosecution that the accused persons
belonged to the party of Shyam Manohar (A-I) who wanted to take revenge
E against the victims in a most hrutal and befitting manner for murder of his
brother Chandrikas. The t\vo suspects, namely, Ram Gulam and Sheo Pal
happened to be the close relations of Sukhdarshan. The appellants/accused
were under the belief that Sukhdarshan and his other family members were
giving protection to these two suspects and it was for that reason the
accused persons formed an unlawful assembly and marched towards the
F house of victims to teach a lesson in the same manner in which Chandrika
was done to death and commit mass murders. The issue of motive in our
considered view is well proved in the facts and circumstances of the case in
favour of the prosecution.

G (22) It was then contended for the accused/appellants that the evidence
of P. W. I was totally artificial and unbelievable. To support his contention our
attention was drawn to his evidence wherein he had stated that when accused
persons were assaulting Kamlesh, Sandeep, Surendra and Sukhdarshan he
was standing in front of them requesting them to spare his family members.
If the accused had gone with the common object of committing the mass
H murders and ifMahendra Kumar (P.W. I) was available so easily yet it was
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.] 553
surprising that not even a scratch was found on his person. It was almost A
· . easy for the accused persons to finish Mahendra Kumar (P.W. 1) as well as
(P.W. 2) but in fact they did not do so. Relying upon this circumstance it was
contended that though these witnesses claimed to be the eye witnesses but
their presence was extremely doubtful and police with the connivance of
Mahendra Kumar (P. W. 1) contrived a false story by spreading a wide net.
We are not impressed by this argument at all as the materials on record prove B
otherwise. It was then contended that almost all the accused persons except
A-10 (now dead), A-11 and A-12 are from the same family of Jodhey and
Raghubar and the list of accused was further inflated by adding relatives who
even did not stay in the village. In this context it was strenuously urged
before us that the investigating agency had widened the net at the instance C
of P.W. I to involve as many accused as possible. This argument again does
not detain us for any longer because the evidence of two eye witnesses was
found to be acceptable and trustworthy and we do not see any scope to give
even any benefit of doubt to any one of these accused persons for the
offences for which they have been convicted.
D
(23) At this stage we deem it necessary to refer to the defence evidence.
A-1 examined Sher Ali (D. W. 1) to support his plea of alibi. Sher Ali (D.W.
1) stated that A-1 used to stay in the orchard situated in between Mekhnapar
and Pimra which is away from the place of occurrence. This evidence in our
considered view does not on preporidrance of probability establish the plea E
of alibi. In this view of the matter this evidence was rightly not accepted by
the courts below. A-11 and A-12 also pleaded alibi and in support thereof
examined Maniram Verma (D.W. 2) and Surendra Pal (D.W. 3) who were then
working as clerks in Krishak College Gola. They testified that during 1987-88
children of both the accused were studying in the said college. A-11 and A-
12 in their statements recorded under Section 313 Cr. P.C. gave an explanation F
that at the time of occurrence they were residing at Village Gola where their
children were schooling. Sri Ram (D.W. 4) who was the teacher at village
Piperva stated that Bajarkha village is situated at a distance of one km. but
admitted that he was not teaching the children of A-11 and A-12. We have
gone through their evidence ·and we are satisfied that their evidence does not G
prove the plea of alibi set up by both the accused. It cannot be assumed that
merely because the children were studying at village Gola, the parents were
also residing at that village. Except this evidence to prove the plea of alibi
no other evidence was led on behalf of these accused persons. We are afraid
that this evidence even on test of probability can prove the plea of alibi set
up by A-1, A-11 and A-12. Both the courts below committed no error in H
554 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A rejecting the plea of alibi set up by A-I, A-11 and A-12.
-
(24) Coming to the question of sentence we have heard the learned
counsel for the parties at great length and considered the facts and
circumstances of the case very carefully; the manner in which the incident
took place; the role played by each of the accused and most importantly the
B extreme brutality with which the members of the unlawful assembly acted. The
question, therefore, is does the conscience of an ordinary human being not
shocked to see the extreme brutality and disregard to the human dignity? As
indicated earlier A-1, A-2, A-4, A-5, A-6, A-8 and A-13 have been awarded
death penalty by the High Court. Of these we will take the case of Rajendra
C (A-6) first. The trial court awarded him the life imprisonment whereas in an
appeal filed by the State the High Court enhanced the sentence of life
imprisonment to death. The reason given by the High Court is that some of
the accused persons who have been awarded death sentence formed one
group which must include A-6 who had.played an identical role and, therefore,
there was no justification to award this accused lesser sentence. With respect
D we are unable to agree with the reasoning of the High Court as regards the
death sentence awarded to A-6. The role attributed to Rajendra as stated by
both the eye witnesses was that he fired from his gun which hit Sandeep
whereupon he fell down. Thereafter Prakash (A-8) and Ravinder (A·S) threw
him into the smouldering fire. No other role was attributed to A-6 as far as
E Sandeep is concerned. Dr. S.K. Tewari (P. W. 9) who performed the autopsy
on the dead body of Sandeep could not find any pellet in his body. The
prosecution also could not collect the evidence to show that any pellet was
recovered from the ashes. The dead body of Sandeep was totally charred and,
therefore, doctor could not find any injury on his dead body. It is in these
circumstances A-6 could not be bracketed with accused persons who have
F been awarded death sentence. A-6, in our considered view is entitled to a
differential treatment for want of conclusive evidence that he had caused fire
arm injuries to Sandeep. We must make it clear that this finding by itself would
not absolve A-6 from his culpability in the present crime with the aid of
Section 149 !PC as regards other murders. His presence was proved beyond
G every reasonable doubt at the time of occurrence. He was a member of an
unlawful assembly having a common object to commit the murders in question
and in prosecution thereof used his fire arm along with other accused who
were armed with fire arms. In view of these proved facts we are of the
considered view that the death sentence awarded to Rajendra (A-6) was not
proper and instead he must fall in the group comprising of accused/appellants ·
H who used the fire arms and have been awarded life imprisonment. We
... SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.] 555
accordingly convert the death sentence awarded to Rajendra (A-6) to a life A
imprisonment without upsetting his convictions on this count as also
convictions and sentences on other counts.

(25) The next important question that needs our consideration is whether
the death sentence awarded to the six accused persons, namely, A-1, A-2, A· B
4, A-S, A-8, and A-13 is in accordance with law and the guidelines laid by
this court. The earliest decision rendered by the Constitutional Bench of this
Court is in Bachan Singh v. State of Punjab, (1980] 2 SCC 684 this Court
observed that in a case of death sentence the facts and circumstances must
indicate that it is a rarest of the rare case where extreme penalty is called for.
The court must pay due regard both to the crime and the criminals. What is C
the relevant weight to be given to the aggravating and mitigating factors
depends upon the facts and circumstances of the particular case. The Court
then observed: "More often than not, these two aspects are so intertwined
that it is difficult to give a separate treatment to each of them. This is so
because 's.tyle is the man'. In many cases, the extremely cruel or beastly D
manner of the commission of murder is itself a demonstrated index of the
depraved character of the perpetrator. That i~ why, it is not desirable to
consider the circumstances of the crime and the circumstances of the criminal
in two separate water-tight compartments. In a sense, to kill is to be cruel and,
therefore, all murders are cruel. But such cruelty may vary in its degree of
culpability. And it is only when the culpability assumes the proportion of E
extreme depravity that "special reasons" can legitimately be said to exist".
"Life imprisonment is the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates resistance to taking
a life through law's instrumentality. That ought not to be done save in the
rarest of rare cases when the alternative option is unquestionably foreclosed". F
This Court has culled out certain mitigating circumstances to be considered
at the time of exercising the discretion while awarding the extreme penalty.

(26) The next two decisions on the topic of death sentence are (i)
Machhi Singh and Others v. State ofPunjab, [1983] 3 SCC 470 (ii) Allauddin G
Mian and Others v. State "of Bihar, [1989] 3 SCCS. We have very carefully
gone through these decisions. In the light of these decisions we may now
advert to the question of sentence.

(27) Mr. A.K. Ganguli, Learned Senior Counsel contended that life
imprisonment is the rule and death sentence is an exception. There is no H
556 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R:

A reason to deviate from this rule. He relied upon the above decisions of this
--
Court on this topic. He urged that the High Court had committed a serious
error while accepting reference and confirming the death sentence awarded
to A-1, A-2, A-4 and A-13 and further enhancing the sentence of A-5, A-6
and A-8 from life imprisonment to death sentence to each one of them. He
B urged that there are several mitigating circumstances which militate against
the death sentence awarded to these accused and, therefore, it would be
appropriate to award life imprisonment to these accused persons. The Learned
counsel then pointed out the mitigating circumstances; (i) Chandrika, the
brother of A-1 was murdered by Sheo Pal and Ram Gulam who belonged to
the party of Sukhdarshan (since deceased); (ii) it was a brutal murder wherein
C Chandrika's head was severed (iii) no common object could be attributed to
the unlawful assembly to commit the murders in question; (iv) the decreased
persons and other family members failed to disclose the whereabouts of Sheo
Pal and Ram Gulam which caused grave and sudden provocation and by
reason of such provocation the incident in question might have happened;
(v) six accused persons belonging to one family have been sentenced to
D death; (vi) the sentence of death awarded to six accused persons would be
a serious calamity on the surviving members of the said family; (vii) all these
condemned prisoners belonged to the age group of 20 to 35 years except A-·
I, A-2 who were aged about 45 and 40 years respectively at the time of
occurrence; (viii) they do not belong to the type of hardened criminals and,
E therefore, they deserve an opportunity to reform themselves in their future
life. While supporting the death sentence of six above named accused persons,
learned counsel for the State urged that none of these circumstances could
be considered as mitigating circumstances to commute the death sentence to
life imprisonment in facts and circumstances of this case. He enumerated the
circumstances warranting an extreme penalty and they are (i) after finding that
F Ram Gulam and Sheo Pal were not hiding in the house of P.W. 1, the unlawful
assembly formed by the accused persons ought to have left the scene of
occurrence; (ii) in Chandrika's murder, none of the deceased was involved; (iii)
there was no provocation from the side.of deceased; (iv) the manner in which
four persons were done to death was most brutal, heneous, ghastly and in
G total disregard to the human dignity; (v) mas murders were pre-planned; (vi)
the modus operandi was well thought of in advance; (vii) of five four murders
were committed in a most barbric manner. Three heads were severed and an
innocent boy of ten years was roasted alive in the smouldring fire; (viii)
victory procession with three heads raising slogans "Shyam Manohar
Zindabad" etc. etc., and thereafter they went towards the house of Chandrika;
H (ix) impact of terror upo11 the minds of surviving members of the family of the
SHIV RAM v. ST ATE OF U.P. [S.P. KURDUKAR, J.] 557
deceased persons; (x) motive coupled with vengeance and revenge against A
innocent persons to satisfy the ago.

(28) We have already analysed the evidence of the prosecution as well
as the defence. Look at the modus operandi adopted by the accused persons
who formed an unlawful assembly and its common object was not only to
commit the murders of Sheo Pal and Ram Gulam but also to commit the mass B
murders of family members of Sukhdarshan (since deceased) as they were
under the belief that Sheo Pal and Ram Gulam were hiding and taking shelter
in the house of Sukhdarshan. The accused persons first fired at Kamlesh,
injured him and thereafter opened the door and searched for Ram Gulam and
Sheo Pal. Kamlesh was immobilised by causing a gun shot injury. Sukhdarshan C
(since deceased) came out of his room. He was fired at on a non-vital part
by immobilizing him and thereafter the accused persons assaulted him with
Banka; A-2, A-4 and A-13 held him facilitating A-1 to severe his head. The
accused did not stop there but thereafter they fired at Surendra and assaulted
him by Bankas. A-2, A-4 and A-13 caught hold of him and A-1 severed his
< head. Sandeep a young boy of 10 years when came out of the room which D
"., was then set on fire was bodily lifted by and A-5 and A-8 who threw him into
the smouldering fire. He was roasted alive. Bhuwaneshwari who was returning
from the market was fired at and was given the same cruel treatment by
severing his head. This only shows that they were thirsty to severe the heads
from the alive but injured bodies in order to take revenge of the murder of E
Chandrika. All the three heads were put together in a piece of cloth and a
victory procession was taken out by accused giving slogan "Shyam Manohar
Zindabad; Nandlal and Premgiri Zindabad etc., etc.", and then they went to
the house of Chandrika. A simple question which requires to be considered
is as to whether the conscience of a society was not shocked to see such
ghastly and brutal murders? The accused persons had shown scant regard F
for the human dignity. Upon taking overall view of the Circumstances in the
light of the ratio laid down by this Court in the aforesaid judgments and
taking into account the manner of commission of crime, motive for commission
of crime and criminals, magnitude of the crime and little regard for the human
dignity and in particular a young boy of 10 years. G

(29) Now let us draw a final balance sheet of the aggravating and
mitigating circumstances after'giving due consideration to the rival contentions
putforth before us as regards· six condemned prisoners. In our considered
view justification clearly leans in favour of death sentence to each of the six
condemned prisoners. Totality of circumstances outweighed the mitigating H
558 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A circumstances as pointed out by Mr. Ganguli. Sentence of life imprisonment
to these six accused persons would be totally inadequate in the facts and
circumstances of this case. The proved facts of this case unmistakably indicate
that the present case squarely falls within the ambit of "rarest of rare" case.
Five murders were committed in an extremely brutal, grosteque, diabolical,
revolting or dastardly manner which would arouse intense and extreme
B indignation of the community. Award oflesser punishment to these six accused
persons would disintegrate the rule of law upon which the edific of our ·'
civilized society stands.

(30) Having regard to the facts and circumstances of this case we are
C of the considered view that the High Court had committed no error whatsoever
in awarding the death sentence to A-1, A-2, A-4, A-5, A-8 and A-13. None
of the mitigating circumstances placed before us could persuade us to apply
the non:rial rule of life imprisonment in respect of these accused persons. It
is in these circumstances we are of the considered view that Criminal Appea!
Nos. 715-716of1997 filed by Sheo Ram (A-2) and Harish (A-4) as well as
D Criminal appeal Nos. 717-720of1997 filed by Shyam Manohar (A-1), Suresh
(A-13), Prakash (A-8) and Ravindra (A-5) are without any merit and they are
consequently dismissed. The death sentence awarded to each of these
accused/appellants is upheld. We, however, confirm the convictions of Rajendra
(A-6) under Section 302/149 IPC and also as regards other offences but we
E convert his death sentence to life imprisonment, subject to this modification
of sentence his appeal to stand dismissed. Criminal Appeal Nos. 721-24 of
1997 filed by Ram Pal Verma (A-24), Sankata (A-22), Nathura Prasad (A-21),
Dorey (A-23) and Lalla (A-3) are dismissed. Criminal Appeal No. 725of1997
filed by Rakesh Giri (A-11) and Rajesh Giri (A-12) to stand dismissed. Criminal
Appeal No. 593 of 1997 filed by Sriram (A-14), Rajaram (A-15), Rampa! (A-16),
F ltwari (A-17), Dhakan (A-18) and Srikrishna (A-19) to stand dismissed. If any
of the accused/appellants is on bail shall surrender to his bail bond forthwith
to serve out the remaining part of his sentence.

RKS. Appeals dismissed. -

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