STATE OF U.P.versusOM PRAKASH

                    [2015] 1 S.C.R. 667

                       STATE OF U.P.                               A
                              V.
                       OM PRAKASH
            (Criminal Appeal No. 1187 of 2006)
                     JANUARY 13, 2015
                                                                   B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
                N.V. RAMANA, JJ.]

      Penal Code, 1860: ss. 3021149 - Brutal murder of 5
persons and grievous injury by sharp edged weapons/lathis          C
to 7 persons - All the accused related to each other heavily
armed with deadly weapons attacked the victims to retaliate
their defeat in the village elections - When the victims tried
to save themselves by taking shelter in a hut, it was set on
fire - Victims who tried to run away were also assaulted -         D
Incident occurred at 5 P.M. in sufficient light - Evidence of
injured eye witnesses was corroborated by independent
witness and medical evidence - Presence of witnesses and
identification of accused by victims not disputed - The nature
of injuries and the recovery of weapons from the accused           E
showed that it was a massive untoward incident and the
accused actively participated in the crime - Prosecution
proved guilt of accused beyond reasonable doubt -
Conviction upheld - As regards sentence, the accused were
on a rampage and running berserk with the only sense
                                                                   F
triggered by the thrust of avenge - The brutality of the murder
must be seen along with all mitigating factors - Though the
incriminating circumstances proved by the prosecution
unerringly led to the guilt of the appellant but after balancing
all the mitigating and aggravating circumstances of the case,      G
the case does not fall under the category of the rarest of the
rare cases - There is hope for their reformation and
rehabilitation - Also, the repetition of such criminal acts at
their hands making the society further vulnerable is also not
                              667                                  H
    668      SUPREME COURT REPORTS              [2015] 1 S.C.R.


A   apparent - Considering the nature of offence, the High Cowt
    was right in modifying the death sentence awarded by the trial
    coutt to that of imprisonment for life - Sentence/Sentencing.

        Dismissing the appeals of the State and the accused,
    the Court
8
         HELD: 1. The criminal intention of the accused was
    proved beyond reasonable doubt. When wife of accused
    No. 7 fought the election of Gram Pradhan in which she
    lost, the group of accused persons alleged that no voting
C   has been made by the victim side in favour of wife of
    accused No. 7 and threatened the victim side with dire
    consequences. Accordingly, to take revenge of that
    failure in elections, the accused party felt it a suitable
    occasion to attack the complainant party on the day of
o   Hali, in which process five innocent persons were done
    to death mercilessly besides injuring several others. The
    depositions of prosecution witnesses showed accused
    No. 7 was throughout instigating the accused party to
    assault the victim party, other accused participated in the
E   crime. When the helpless victims took shelter in a Kothari
    (small room), the accused, in pursuit of their avenge, tried
    to cut the doors of Kothari and having failed to do so,
    they poured kerosene oil on the chappar and burnt the
    Kothari leading to the burnt injuries and death of victims.
    The nature of injuries and the recovery of weapons from
F
    the accused make it clear that it was a massive untoward
    incident and the accused had actively participated in the
    crime. All the accused were related to each other forming
    a strong group heavily armed with deadly weapons and
G   attacked the victims to retaliate their defeat in the village
    elections. The plea taken by the accused that it is difficult
    to identify the accused at the spot when there was
    participation of about 35 persons in the crime as alleged,
    cannot be accepted for the reason that admittedly the
    incident occurred at 5.00 p.m. in the month of March in
H   sufficient light and undisputedly, the accused and the
          STATE OF U.P. v. OM PRAKASH                 669

victims knew each other very well. PW1, PW2, PW4 were         A
injured eyewitnesses whose depositions were
corroborated with the evidence of PW3, another
independent eyewitness. These witnesses in clear and
categorical terms explained the way in which the accused
persons committed the crime. Thus the presence of             8
witnesses at the time of occurrence and identification of
accused by the victims cannot be disputed. The recovery
of deadly weapons from the possession of the accused
strongly affirmed the role played by each of them in the
deadly act. Therefore, the prosecution proved the guilt of    C
the accused beyond all reasonable doubts. [Paras 10, 19,
21, 221, [676-C-E; 682-D-E; 683-8-E, F-H]

     Machhi Singh v. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Bachan Singh v. State of Punjab (1980)
2 SCC 684; Ram Pal v. State of UP. (2003) 7 SCC 141 -         D
relied on.

     2. Before opting for the death penalty, the
circumstances of the offender require to be taken into
consideration along with the circumstances of the crime       E
for the reason that life imprisonment is the rule and death
sentence is an exception. The penalty of death sentence
may be warranted only in a case where the court comes
to the conclusion that imposition of life imprisonment is
totally inadequate having regard to the relevant
                                                              F
circumstances of the .crime. The balance sheet of
aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and a just balance
has to be struck between the aggravating and mitigating       G
circumstances before the option is exercised. The
prosecution has alleged that to take revenge on the
villagers for not casting their votes in favour of the wife
of accused No. 7 Vllho had lost the election, the accused
party attacked the victims. The elections to the post of
                                                              H
    670      SUPREME COURT REPORTS          [2015] 1 S.C.R.

A Gram Pradhan were held about ten months before the
  date of incident. Considering the long time gap between
  the time of elections and the date of incident, it cannot
  be said that the accused attacked the victims with the
  clear motive of taking revenge for not voting in their
8 fayour in the elections. The clash between two groups of
  a village cannot be ascribed as enormous in proportion.
  Though the incriminating circumstances proved by the
  prosecution unerringly lead to the guilt of the appellant/
  accused, but after balancing all the mitigating and
C aggrav_ating circumstances of the case, this case does not
  fall under the category of the rarest of the rare cases.
  There is a ray of hope for their reformation and
  rehabilitation. The High Court was right in modifying the
  death sentence awarded by the trial judge to that of
  imprisonment for life. [Paras 28, 33 to 35] [685-D-F; 687-
D B-D; 688-B-E]

      Neel Kumar v. State of Haryana (2012) 5 SCC 766:
  2012 (5) SCR 696; Harish Mohandas Rajput v. State of
  Maharashtra 2011 (12) SCC 56: 2011 (14) SCR 921; R.
E Rajagopal v. State of Tamilnadu AIR 1995 SC 264: 1994 (4)
  Suppl. SCR 353; Santosh Kumar Singh v. State (2010) 9
  sec 747: 2010 (13) SCR 901 - relied on.
                     Case Law Reference :
F         1983 (3) SCR 413      Relied on         Para 12
          (1980) 2 sec 684      Relied on         Para 18
          (2003) 1 sec 141      Relied on         Para 18
          2012 (5) SCR 696      Relied on         Para 28
G
          1983 (3) SCR 413      Relied on         Para 28
          (1980) 2 sec 684      Relied on         Para 28
          2011 (14) SCR 921     Relied on         Para 29
H
           STATE OF U.P. v. OM PRAKASH                      671

    1994 (4) Suppl. SCR 353 Relied on                Para 30        A
    2010 (13) SCR 901            Relied on           Para 31

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1187 of 2006.
                                                                    B
    From the Judgment and Order dated 23.09.2005 of the
High Court of Judicature at Allahabad in Criminal Appeal
No.713 of 2004.

                             WITH
                                                                    c
Crl. A. Nos. 1186 of 2006 and 773 of 2007

    Raj Singh Rana, Anurag Singh, Anil .Kumar Mishra,
Narendra Singh Yadav, K. L. Janjani, Harbans Lal Bajaj for the
Appellant.                                                          o
    Gaurav Bhatia, AAG, Ameet Singh, Alka Sinha, U.
Jaiswal, Anuvrat Sharma for the Respondent.

    The Judgment of the Court was delivered by
                                                                    E
     N.V. RAMANA, J. 1. These appeals arise out of a
common impugned judgment dated 23rd September, 2005 of
the Division Bench of High Court of Judicature at Allahabad in
various criminal appeals arising from the judgment and order
dated 23rd January, 2004 passed by the Additional District &        F
Sessions Judge (Special Judge, SC/ST Act), District Pilibhit,
Uttar Pradesh.

      2. An FIR was lodged by the Complainant Lalta Prasad
at the PS Bukhera, District Pilibhit, U.P. on 10th March, 2001
alleging that while he along with Hem Raj, Moti Ram Kundan,         G
Shiv Charan Lal S/O Hai Shankar and his father Devi Ram were
sitting at his crusher and celebrating the festival of Holi along
with relatives and friends, the accused No. 7 Ram Swaroop S/
0 Hori Lal appeared the~e with the company of other accused
carrying different types of arms and attacked them. The motive      H
    672       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   behind their attack was that about ten months prior to the
    incident, lmarati Devi, wife of accused No. 7 (Ram Swaroop)
    had contested and lost the election for the post of Gram
    Pradhan and Ram Swaroop (accused No. 7) had threatened
    the villagers to bear the brunt for not getting his wife elected to
B   the post. He, therefore, wanted to take revenge on the villagers.
    Other accused who accompanied Ram Swaroop were Jagan
    Lal (accused No. 2) armed with a gun, Ram Bharosey (accused
    No. 32) carrying Pauniya, Ashok Kumar (accused No. 31),
    Kunwar Sen (accused no.26), Lala Ram (accused no.22) and
C   Ram Swaroop s/o Dal Chand (accused no.2) all armed with
    Country made pistols. Pati Ram (accused no.12), Hori lal
    (accused no.28), Om Prakash (accused no.1 ), Ram Chandra
    (accused no.11 ), Bhagwan Swaroop (accused no.13) , Lalta
    Prasad (accused no.8}, Bhagirathi (accused no.3}, Budhsen
D   (accused no.9), Baljeet (accused no.10) and Nan hey Lal
    (accused no.14) were armed with banka. Other accomplices
    were Dal Chand (accused no.29) armed with Suja, Shree
    Krishna (accused no.18), Mahesh (accused no.17),
    Dharamveer (juvenile), Lalman (accused no.15), Chetram
E   (accused no.24), Kalicharan (accused no. 23), Gaya Deen
    (juvenile, died during trial), Nanhoo Lal (accused no. 21),
    Kanhai Lal (accused no.27), Nokhey Lal S/O Ram Dayal
    (accused no.19) and Om Prakash (accused No. 16) who were
    carrying lathis in their hands.

F         3. According to the complainant, Ram Swarup (accused
    No. 7) exhorted other accused to kill the complainant party. Out
    of fear, the complainant with his family and friends ran helter
    skelter to save their lives. The accused party chased them
    assaulted them indiscriminately and opened fire. When some
G   of the members of the complainant party entered into a kothari
    (a small room in the field) to save themselves from the ruthless
    firing of accused party, the women accused Maya Devi
    (accused No. 4), Amriti Devi (accused No. 5) and Sunita Devi
    (accused No. 6) carrying kerosene oil with them, poured the
H   same on the khaprail of the Kothari and Ram Swaroop
 STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 673


(accused no. 7) set it ablaze from the front side and Uma          A
Shankar (accused No. 34) set the fire from back side. Moti
Ram, a victim, tried to jump from the roof of the Kothari but he
was shot by Ram Swaroop (accused No. 7) resultantly he fell
in the fire. Similarly, other victims Hem Raj, Chunni Lal and
Mahendra Pal tried to come out of the Kothari, but they too were   8
shot. When the accused left the place, the complainant found
Mahendra Pal lyind dead in a drain, Moti Ram was lying in the
Kothari in a burnt condition. The dead bodies of Hem Raj and
Chunni Lal were found in the fields.

     4. Having registered the case, SHO P.K. Sharma (PW· 14)
                                                                   c
rushed to the place of occurrence, recorded statements and
prepared site plan. The police then recovered 3 empty
cartridges, prepared recovery memo (Ext. Ka. 109), prepared
inquest reports of the deceased, collected blood stained and
plain earth and sent the bodies for postmortem. He then            D
arrested the accused Dharamveer Quvenile), Maya Devi and
Mahesh. Seven other accused Jangan Lal, Narain, Ram
Bharose, Budhsen, Bhagirath, Baljeet and Nanhey Lal were
also arrested immediately and weapons were recovered from
their possession. On 17th March, 2001 police arrested seven        E
more accused persons, namely, Lalman, Kali Charan, Gaya
Deen, Nanhoo Lal, Kanhai Lal, Nokhey Lal and Rambhadur
and lathis and ballams were recovered from them. On the next
day, ten more accused including accused No. 7 (Ram Swaroop)
were arrested and a 12 bore No. 4236 (gun) with three live         F
cartridges were recovered from his possession. One 12 bore
country made Pauniya and one live cartridge were reovered
from Uma Shankar. A country made pistol and one live
cartridge were recovered from the possession of Ashok Kumar.
From the possession of Pati Ram, Ram Chandra, Bhagwat              G
Swaroop and Lalta Prasad bankas were recovered. Lathis
were recovered from Chet Ram, Om Prakash S/O Hira Lal.
While accused Lala Ram was arrested on 20th March, 2001,
Ram Swaroop S/O Dal Chand, Kunwar Sen, Shree Krishna and
Om Prakash S/O Mansha Ram surrendered in Court. Some               H
    674      SUPREME COURT REPORTS                (2015] 1 S.C.R.


A   more weapons were recovered at the instance of Ram
    Swaroop S/O Dalchand, Kunwar Sen and Shree Krishna.
    Charge-sheet (Ext. Ka. 120) was submitted after investigation
    and the case was committed to the Court of sessions.

       5. One juvenile accused, namely, Gayadin was stated to
8
  be dead and other accused Dharamvir was being tried by the
  Juvenile Court as he was also found to be Juvenile on the date
  of incident. The other accused were tried under Sections 302/
  149 IPC, Sections 148, 436/149 IPC, 307/149 IPC, 506 IPC,
  Sectivil 7 of the Criminal Law Amendment Act and Section 4
C read with Section 25 of the Arms Act. In order to prove its case,
  the prosecution examined 15 witnesses out of whom Lalta
  Prasad (PW 1), Leelawati (PW 2), Ved Prakash (PW 3) and
  Hari Shankar (PW 4) are ocular witnesses.

D        6. Learned Trial Judge after full-fledged trial came to the
    conclusion that accused Ram Swarup, Jaganlal, Ram Bharose,
    Uma Shankar, Tulsi, Narayan, Ashok Kumar, Kunwarsen,
    Lalaram, Ram Swarup, Pati Ram, Hori Lal, Om Prakash S/O
    Mansharam, Ram Chandra, Bhagwat Swarup, Lalta Prasad,
E   Bhagirath, Budh Sen, Baljit, Nanhe Lal, Dalchand, Sri Krishna,
    Mahesh, Dharamvir, Lalman, Chetram; Kalicharan, Gayadin,
    Nanhulal, Kanhailal, Nokhelal, Ram Bhadur, Om Prakash, Ram
    Swarup S/O Kanhai Lal, Smt. Maya Devi, Smt. lmrati Devi and
    Smt. Sunita Devi are guilty for the offences under Sections 147,
F   148, 436/149, 302/149, 307/149 and Section 506, IPC,
    Section 7 of the Criminal Law Amendment Act and Section 4
    read with Section 25 of the Arms Act. They were accordingly
    sentenced with 2 years R.I. for the offence under Section 148
    IPC, 10 years R.I. under Section 436/149 IPC, 10 years R.I.
G   under Section 307/149 IPC, 2 years R.I. for the offence under
    Section 506 IPC, 6 months R.I. and one year R.I. for the offences
    punishable under Sections 7 of the Criminal Law Amendment
    Act and Section 4/25 of the Arms Act, respectively. Accused
    Ram Swarup S/O Horilal, Jagan, Pati Ram, Om Prakash S/O
    Mansha Ram, Ram Chandra, Bhagwat Swarup, Lalta Prasad,
H   Bhagirath, Budhsen, Baljit, Nanhey Lal, Ram Swarup S/O
 STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 675


Kanhai Lal were held guilty of the offence under Section 302/   A
149, IPC. The trial Court thus imposed death penalty against
those 12 accused. All the sentences awarded to the accused
were however directed to run concurrently.

      7. Against their conviction and sentence, the accused 8
approached the High Court in various Criminal Appeals while
the State preferred Criminal Reference for confirmation of death
sentence. The Division Bench of the High Court affirmed the
conviction of the accused and upheld the sentence awarded by
the Trial Court against all the accused except accused Nos. 1, C
2, 3, 7, 8, 9, 10, 11, 12, 13, 14 and 20. The High Court modified
the sentence of death to these accused (12 in number) to the
imprisonment for life opining that the offence committed by them
does not fall under the category of rarest of rare cases. Not
satisfied with the judgment of the High Court, the State as well
as accused filed appeals before this Court. While the State D
preferred its appeal for confirmation of death sentence against
those 12 accused, the accused filed appeals against their
conviction.

     8. We have heard Mr. Gaurav Bhatia, learned Additional     E
Advocate General for the State of U.P. and Mr. Anurag Singh,
learned counsel for the accused.

     9. Learned Additional Advocate General appearing for the
State strongly contended that the High Court has utterly failed F
to take into consideration the magnitude of the offence
committed by the accused and without justification commuted
the death sentence correctly imposed by the Trial Judge into
imprisonment for life. He submitted that the learned Trial Judge
awarded death sentence to the accused after hearing the
counsel for both sides elaborately and after assessing the facts G
and circumstances of the case in a proper perspective upon.
reaching to the conclusion that the prosecution has proved the
case beyond all reasonable doubts. The High Court could not
assess the nature and gravity of the crime in its true magnitude
and erred in modifying the death sentence into life H
    676       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   imprisonment. In the light of the law well settled by this Court,
    giving regard to the magnitude, gruesome and heinous nature
    of the offence and the manner in which the perpetrators
    committed the crime, it can be said without any hindrance of
    doubt that the crime falls in the category of 'rarest of rare'
B   inviting death penalty to the offenders. But, the High Court acted
    in complete disregard to the law settled by this Court and shown
    l~nience in the matter of sentence which will give rise and foster
    a fee!ing of private revenge among the people leading to
    destabilization of the society.                        ·
c        10. The criminal intention of the accused was proved
    beyond reasonable doubt. When lmarti Devi, wife of accused
    No. 7 Ram Swaroop fought the election of Gram Pradhan
    against Som Wati in which wife of accused No. 7 lost, the group
    of accused persons alleged that no voting has been made by
D   the victim side in favour of wife of accused No. 7 and threatened
    the victim side with dire consequences. Accordingly, to take
    revenge of that failure in elections, the accused party felt it a
    suitable occasion to attack the complainant party on the day
    of festival of Holi, in which·process five innocent persons were
E   done to death mercilessly besides injuring several others. The
    inhuman behavior adopted by the accused by creating
    mayhem in the village and then chasing each of the victims and
    targeting them to death cannot be pardonable and no less
    punishment than death is warranted.
F
          11. Learned AAG further contended that the incident did
    not occur suddenly or at a spur of moment. Instead, it has been
    established before both the Courts below that respondents
    committed the offence in a planned manner. When the innocent
    victims were running to save their lives, the accused chased
G   them by assaulting and firing indiscriminately. The accused
    threatened the villagers that if any one came to the rescue of
    the victims, he too will face the same consequences. On
    account of fear, the villagers had shut their doors and the publi~
    life was disturbed. It is thus an exceptional case, an offence
H   against the society where the collective conscience of the
 STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 677

community was shattered by the diabolical acts of the accused         A
exhibiting extreme brutality. It is the duty of the Court to impose
ultimate punishment of death sentence in such grave cases.

      12. Placing reliance on this Court's Judgment in Machhi
Singh Vs. State of Punjab (1983) 3 sec 470, learned counsel           B
submitted that the case on hand fulfills the decisive factors
specified by this Court viz., (i) motive for commission of murder
(ii) anti-social or socially abhorrent nature of the crime (iii)
magnitude of crime and (iv) personality of victim of murder.
Learned counsel submitted that the existence of rule of law and
the fear of imposing capital punishment operates as a deterrent
                                                                      c
for those who have no scruples in killing others if it suits their
ends and insisted that the imposition of death sentence is the
only remedy when the acts of the accused are a challenge to
the society and the circumstances of the case reveal that it was
a cold-blooded murder and the victims were helpless and               D
undefended. In the present case the accused committed the
crime in an extremely brutal, gruesome, diabolical and dastardly
manner and the acts of perpetrators were extreme indignation
of the community. The medical evidence clearly indicates that
how brutally the victims were done to death and their body parts      E
were cut dowri mercilessly. Therefore, imposition of a ~entence
 less than death upon the accused will be a mockery of justice.
 Learned Additional Advocate General finally submitted that the
 High Court committed an error in modifying the death sentence
into life imprisonment and the same needs to be interfered by         F
 this Court so as to restore death penalty on the accused.

      13. Learned counsel for the accused advanced the plea
that the Trial Court as well as the High Court took a wrong note
of the incident and went on sentencing the accused believing          G
the statements of prosecution witnesses. The depositions of
prosecution witnesses are entirely tutored and they are not
witnesses of truth as it is highly unlikely that an unlawful
assembly of about 35 persons joining together carrying deadly
weapons and kerosene oil with the sole object of killing
                                                                      H
    678      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A members of one particular family, for the simple reason that they
  did not vote in favour of their candidate. Generally, when a
  concerted attack is made by a large number of persons, it is
  often difficult to determine the actual part played by each of the
  accused. The entire story of prosecution is based on flimsy
B grounds so as to implicate political rivals by cooking up a false
  case against them. Given the importance to the theory of
  'common object' in order to attract punishment under Section
  149, IPC the Courts below have committed an error in
  appreciating the fact that the prosecution has failed to establish
c the role that was actually played by each of the accused which
  is fatal to the case of the prosecution.

       14. Prosecution story is highly improbable for another
  reason that the 'motive' has not been established beyond doubt
  to justify the sentences awarded to the accused. It is a sound
D presumption that every criminal act is done with a motive. The
  entire incident had occurred on the spur of moment involving
  many villagers running helter skelter fanatically out of fear of
  gunshots in which process some of the villagers got injured. In
  such a situation, it is not possible for anyone to take note of
E what exactly had happened. Considering the chaotic situation
  in which the alleged incident was occurred, it is ludicrous and
  inconceivable that a detailed report could be filed with the police
  by 8.10 p.m. on the same day that too when the police station
  is situated at about 7 'h kilometers from the place of
F occurrence. Hence the prosecution story is totally
  unbelieavable.

       15. In the first information report, it was alleged that the
  dead body of Moti Ram was lying in burnt condition inside the
G Kothari. Later on the same was determined as the dead body
  of Kundan Lal and not that of Moti Ram. If the eyewitnesses
  were in a position to recognize the assailants, they would not
  have committed mistake in identifying the dead body of Kundan
  Lal. The act of indiscriminate firing was alleged against ten
H accused persons, but according to t~e postmortem reports of
STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.]                  679


Moti Ram and Hem Raj, there was only one firearm injury on             A
each of their bodies. Apart from these two deceased, no other'
person had received firearm injury. Similarly, the prosecution
has alleged that accused Shree Krishna and Gaya Deen had
carried Ballams, but there was no ballam injury on the bodies
of deceased or injured. Hence, the statements of eyewitnesses          B
are not trustworthy. Based on the statements of those
eyewitnesses who could not even identify the dead bodies
correctly, a large number of persons were falsely implicated.

      16. Another contention advanced by learned counsel for
the accused is that the participation of Maya Devi (accused No.        C
4), Amriti Devi (accused No. 5) and Sunita Devi (accused No.
6) in the crime is not proved beyond reasonable doubt. The
prosecution has alleged that these three accused carried
kerosene oil with them and poured it on the chappar of the
Kothari when other accused set it on fire. The allegation cannot       D
be accepted for the reason that when allegedly a number of
other accused were holding deadly weapons, carrying of
kerosene oil tin by these lady accused on a day of holi festival
is highly doubtful. Lalta Prasad (PW 1), prime witness, did not
state in his statement under Section 161, Cr.P.C. about these          E
women sprinkling kerosene oil on the chappar of the Kothari.
Moreover, some other accused namely Nanhoo Lal, Kanhai Lal,
Dal Chand, Hori Lal, Nokhey Lal and Ram Bahadur are very
old in age and their participation in such a crime is also doubtful.
Hence the learned counsel submitted that the Courts below              F
were wrong in sentencing the accused without extending them
the benefit of doubt.

     17. Before forming an opinion on the merits of these
appeals, it would be apposite to look into the main                    G
observations of the Courts below. The Trial Court has, while
awarding death penalty after hearing the accused passed the
following order:

     "Heard accused persons on the point of sentence.
                                                                       H
    680        SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         It has been argued by the learned counsel for the
          prosecution that in the instant case, five persons have
          been brutally and gruesomely murdered and burnt by the
          accused persons and seven persons have been grievously
          injured by sharp edged weapons and lathis. As many as
B         35 accused persons armed with deadly weapons played
          a bloody and gory holi with the complainant party to
          avenge defeat in the election of Pradhan in the village. So
          far as it is clear from the injuries on the persons of the
          deceased persons that parts of their bodies have been
c         mercilessly severed and when the victims tried to save
          themselves by hiding in a khaprail, the accused persons
          set fire to the said khaprail and when the helpless victims
          tried to run to save themselves, the accused persons
          indiscriminately fired upon them and cut them with the
          bankas. In this manner, the instant case comes in the
D
          category of rarest of rate cases and hence all the accused
          deserve capital punishment. In support of his contention,
          he has relied upon the judgments reported as 1999 Cr. L.J.
          Page 2873 and 201 Cr.L.J. Page 1462.

E         Contrary to above, the learned counsel for the defence has
          argued that all the accused persons belong to same caste
          and are poor cultivators. Out of the accused persons, Holi
          Lal, Dal Chand, Nanu Lal age 70 years, Kanhai Lal aged
          90 years, Nokhey Lal aged 80 years and Ram Bahadur
F         aged 65 years. Hence their cases should be considered
          sympathetically while awarding any sentence to them.

          It is correct that all the accused persons armed with deadly
          weapons like rifles, paunias, country made pistols,
          ballams, sooja and lathis had attacked helpless and
G
          innocent persons to avenge defeat in the elections of the
          village and had attacked them at the time when they were
          celebrating the holi festival and when the poor victims tried
          to save themselves and hid in a khaprail and shut the
          doors from inside, the accused persons first tried to break
H
STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 681


    the doors and when they failed to break the doors, the          A
    accused persons poured kerosene oil on the khaprail and
    set the same on fire. As a result whereof Kundan Lal was
    burnt to death and when other persons came out of the
    Khaprail and ran to save themselves, the accused persons
    cut them with bankas and as a result whereof Mahindra           B
    Pal, Moti Ram, Hem Raj and Chunni Lal were murdered
    and killed brutally. Not only this, Lalta Prasad, Hari
    Shankar, Lilawati, Ganga Ram, Devi Ram, Smt. Kishori
    Devi and Smt. Atar Kali also received grievous injuries on
    their persons. It was their sheer luck that they saved          c
    themselves, otherwise, the accused persons had left no
    stone unturned to kill them too. Hence I fully agree with the
    argument of the prosecution that the instant case comes
    in the category of rarest of rare cases. All the deceased
    as well as injured persons have been brutally attacked with     D
    rifles and bankas and grievous injuries were inflicted upon
    them. Therefore, in my opinion, accused Ram Swarup S/
     0 Hori Lal, Jagan Lal, Patiram S/O Mansha Ram, Ram
    Chandra, Bhagwat Swarup, Lalta Prasad, Bhagirath,
     Budhsen, Baljit, Nanhey Lal and Ram Swarup S/O Kanhai
                                                                    E
     Lal are entitled to be awarded death penalty. Out of these
     accused persons, Ram Swarup S/O Hori Lal and Jagan
    Lal possessed licensed rifles whereas the remaining
     accused persons possessed bankas with them."

     18. The Trial Court has accordingly awarded extreme            F
penalty of death to twelve accused. The High Court after
considering the judgments of this Court in Bachan Singh Vs.
State of Punjab (1980) 2 SCC 684 and Ram Pal Vs. State of
UP. (2003) 7 sec 141 came to the conclu~ion thus:
                                                                    G
    "Compassion in sentencing is also a key factor. It allows
    the scars to heal. Longevity of incarceration may make
    them see reason. Passage of time may make them
    ponder over the crime they had committed. This might
    arouse in them a feeling of remorse and repentance.
                                                                    H
    682        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A         Considering the overall circumstances of the case, this
          case does not fall within the category of rarest of rare cases
          and it cannot be said that imprisonment for lesser sentence
          of life term was altogether foreclosed and we are of the
          view that a sentence of imprisonment for life to the
B         appellants would meet the ends of justice".

        19. We have heard learned counsel for the parties. In the
  light of submissions made by the counsel on either side, the
  point that atises for consideration in the present appeal is
C whether the prosecution could establish the guilt of the accused
  beyond all reasonable doubt for the offences for which they
  were charged? And if so, whether the case falls in the category
  of "rarest of rare cases" inviting the capital punishment of death
  sentence. There is no dispute as to the fact that the brutal
  occurrence resulted in the death of five villagers besides
D several others getting grievously injured. From the depositions
  of prosecution witnesses it is forthcoming that Ram Swaroop
  (accused No. 7) was throughout instigating the accused party
  to assault the victim party, other accused participated in the
  crime. When the helpless victims took shelter in a Kothari, the
E accused, in pursuit of their avenge, tried to cut the doors of
  Kothari and having failed to. do so, they poured kerosene oil
  on the chappar and burnt the Kothari leading to the burnt injuries
  and death of victims.

F      20. Dr. A.P. Sharma (PW 5) who conducted postmortem
  examination on the dead body of deceased Moti Ram opined
  that the cause of death was shock, hemorrhage, asphyxia as
  a result of ante mortem injuries. Similar opinions were given
  by Dr. Vimal Srivastava (PW 6) who had conducted
G postmortem on the dead bodies of other victims. Dr. R.S.
  Sone, Medical Officer, lncharge, P.H.C. Barkhera, District
  Pilibhit (PW 7) who had medically examined the injured persons
  found incised wounds, multiple abrasions and contusions on the
  bodies of victims. The nature of injuries and the recovery of
  weapons from the accused make it clear that it was a massive
H
 STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 683


untoward incident and the accused had actively participated in         A
the crime.

     21. From the depositions of prosecution witnesses, it is
evident that all the accused are interrelated to each other
forming a strong group heavily armed with deadly weapons and
                                                                       B
attacked the victims to retaliate their defeat in the village
elections. The plea taken by the accused that it is difficult to
identify the accused at the spot when there was participation
of about 35 persons in the crime as alleged, cannot be
accepted for the reason that admittedly the incident occurred
at 5.00 p.m. in the month of March in sufficient light and
                                                                       c
undisputedly, the accused and the victims know each other very
well. Lalta Prasad (PW 1), Lilawati (PW 2), Hari Shankar (PW
4) are injured eyewitnesses whose depositions were
corroborated with the evidence of Ved Prakash (PW 3),
another independent eyewitness. These witnesses in clear and           D
categorical terms explained the way in which the accused
persons committed the murder of Mahender Pal, Hem Raj,
Chunni Lal, Moti Ram and Kundan Lal and caused injuries to
Ganga Ram, Devi Ram, Kishori Devi and Attar Kali. Thus the
presence of witnesses at the time of occurrence and                    E
identification of accused by the victims cannot be disputed.

     22. The statements of prosecution witnesses corroborated
by the medical evidence assessed with the facts and
circumstances of the case, we find no reason to disbelieve the         F
participation of the accused in the criminal offence of killing five
villagers besides causing injuries to several others. The
recovery of deadly weapons from the possession of the
accused strongly affirms the role played by each of them in the
deadly act. We, therefore, see no reason to interfere with the         G
judgments of the Courts below as far as the conviction of the
accused is concerned, and we are of the considered opinion
that the prosecution proved the guilt of the accused beyond all
reasonable doubts. In the result, the appeals preferred by the
accused against their conviction stand dismissed and
                                                                       H
    684       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   accordingly, the issue is answered.

         23. Now the point that falls for consideration is whether the
    offence committed by the accused falls within the rarest of the
    rare cases, which warrants imposition of death. penalty and
    whether there is any illegality in the judgment passed by the
8
    High Court in converting the sentence of death to that of life
    imprisonment.

       24. It is settled proposition of law that imposing sentence
  of death penalty is an exception and it should be awarded only
C in the rarest of the rare cases. Under the old Criminal
  Procedure Code, ample discretion was given to the Courts to
  pass death sentence as a general rule and the alternative
  sentence of life could be awarded only in exceptional
  circumstances and that too after recording special reasons for
D making the departure from the general rule. The Code of
  Criminal Procedure, 1973 has reversed the said rule. Sentence
  of imprisonment for life is now the rule and capital sentence is
  an exception. It has also made obligatory on the Courts to
  record special reasons, if ultimately, death sentence is to be
E awarded.

         25. The question as to whether death sentence has to be
  imposed has been a vexed question engaging the attention of
  the Courts considerably and consistently since a long time. No
  fixed yardstick or formula has been evolved for the same and
F its imposition is dependant upon the facts and circumstances
  of each case, vision and understanding of the Judge, has been
  found to be inseparable. The phrase "rarest of th·e rare cases"
  still remains to be defined while the concern for human life, the
  norms of a civilized society and the need to reform the criminal
G has engaged the attention of the Courts. It has equally been the
  view that sentence of death has to be based on the action of
  the criminal rather than the crime committed. The doctri.ne of
  proportionality of sentence vis-a-vis the crime, the victims and
  the offender has been the greatest concern of the Courts.
H
 STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 685


     26. This Court in Bachan Singh's case has formulated             A
certain guidelines while stating that they are only instructive and
not exhaustive. This Gpurt held that rarest of the rare case is
when the collective conscience of the community is so shocked
that it will expect the holders of judicial power to inflict death
penalty, irrespective of their personal opinion as regards            B
desirability or otherwise of retaining death penalty.

     27. This Court in several cases reiterat~d the guidelines
laid down in Bachan Singh's and Machhi Singh's cases and
dealt with extensively about the cases that fall under the rarest     C
of the· rare cases.

     28. This Court in Neel Kumar Vs. State of Haryana (2012)
5 SCC 766, Machhi Singh_Vs. State of Punjab (1983) 3 SCC
470 and Bachan Singh Vs. State of Punjab (1980) 2 SCC 684,
held that the extreme penalty of death need not be inflicted          D
except in gravest cases of extreme culpability. Before opting
for the death penalty the circumstances of the offender also
require to be taken into consideration along with the
circumstances of the crime for the reason that life imprisonment
is the rule and death sentence is an exception. The penalty of        E
death sentence may be warranted only in a case where the
court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The balance sheet of aggravating
and mitigating circumstances has to be drawn up and in doing          F
so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and mitigating circumstances before the option is
exercised.

      29. This Court in Harish Mohandas Rajput Vs. State of G
Maharashtra 2011 (12)    sec 56, held that 'the rarest of the rare
case' comes when a convict would be a menace and threat to
the harmonious and peaceful coexistence of the society. The
crime may be heinous or brutal but may not be in the category
of 'the rarest of the rare case'. There must be no reason to H
    686      SUPREME COURT REPORTS                  [2015] 1 S.C.R.

A   believe that the accused cannot be reformed or rehabilitated
    and that he is likely to continue criminal acts of violence as
    would constitute a continuing threat to the society. The accused
    may be a menace to the society and would continue to be so,
    threatening its peaceful lnd harmonious coexistence. The
B   manner in which the crime is committed must be such that it
    may result in intense and extreme indignation of the community
    and shock the collective conscience of the society.

         30. In R. Rajagopal Vs. State of Tamilnadu, AIR 1995 SC
    264, this Court considered what is the rarest of rare cases and
C   when death sentence can be imposed and observed that the
    choice as to which of the punishment provided for murder is
    the proper one in a given case will depend upon the particular
    facts and circumstances of that case and the Courts have to
    exercise their discretion judicially on well recognized principles
D   after balancing all the mitigating and aggravating circumstances
    of the case. The Court should also see whether there is
    something unknown about the crime which renders the
    sentence of imprisonment of life inadequate and calls for
    imposition of death sentence.
E
         31. In Sant@sh Kumar Singh Vs. State (2010) 9 SCC 747,
    it was observed by this Court that undoubtedly, the sentencing
    part is a difficult one and often exercises the mind of the Court
    but where the option is between a life sentence and a death
F   sentence, the options are indeed extremely limited and if the
    Court itself feels some difficulty in awarding one or the other, it
    is only appropriate that the lesser sentence should be awarded.
    This is the underlying philosophy behind "the rarest of the rare"
    principle.

G        32. Coming to the facts of the present case, heavily relying
    on the parameters set out by this Court in Machhi Singh's case
    (supra) learned counsel for the State demanded for restoration
    of death sentence on the accused. Considering the facts and
    circumstances of these cases, weighed with the evidence
H   advanced by the prosecution witnesses, there is no doubt that
STATE OF U.P. v. OM PRAKASH [N.V. RAMANA, J.] 687


the accused had tried to kill the victims. When the victims tried   A
to save themselves by taking shelter in a Kothari, it was set on
fire and the victims who tried to run away were assaulted.

     33. As far as the motive of the accused is concerned, the
prosecution has alleged that to take revenge on the villagers
                                                                    B
for not casting their votes in favour of the wife of accused No.
7 who had lost the election, the accused party attacked the
victims. It has come on record that the incident took place on
10th March, 2001 and the _elections to the post of Gram
Pradhan were held much before the date of occurrence i.e.
about ten months before the date of incident. Considering the       C
long time gap between the time of elections and the date of
incident, it cannot conveniently be said that the accused
attacked the victims with the clear motive of taking revenge for
not voting ln their favour in the elections.
                                                                    D
      34. The question of magnitude of the offence raised by the
learned Additional Advocate General for affording death
penalty to the accused, it was a clash between two groups of
a village and cannot be ascribed it as enormous in proportion.
In a criminal trial when the prosecution seeks to make out a        E
case for imposition of death sentence, the prosecution
undoubtedly has to discharge a very onerous burden. The
prosecution must discharge this burden by demonstrating the
existence of aggravating circumstances and the consequential
absence of mitigating circumstances. In discharging such            F
burden, the prosecution has to not only establish its case
beyond all reasonable doubt, but also has to prove the
commission of the crime and the aggravating circumstances
leading to an inference that the case falls within the category
of "the rarest of the rare cases", warranting imposition of death
                                                                    G
penalty.

     35. However, so far as the sentence part is concerned, the
death penalty is now confined to the narrowest region in view
of the law referred to hereinabove. We have no hesitation to
say that the accused indulged themselves in acts of the most        H
    688        SUPREME COURT REPORTS               [2015] 1 S.C.R.


A gruesome ·nature. At the same, it is to be borne in mind that
  the accused were on a ramP!f3ge and running berserk with the
  only sense triggered by the thl\lst of avenge. The brutality of the
  murder must be seen along with all mitigating factors in order
  to come to the conclusion whether the case falls within the
B ambit of the rarest of the rare cases. Though the incriminating
  circumstances proved by the prosecution unmistakably and
  unerringly lead to the guilt of the appellant/accused, but having
  regard to the observation made by this Court in Machhi Singh's
  case, after balancing all the mitigating and aggravating
C circumstances of the case, we are of the view that this case
  does not fall under the category of the rarest of the rare cases.
  Further the repetition of such criminal acts at their hands
  making the society further vulnerable are also not apparent.
  There is a ray of hope for their reformation and rehabilitation.
  Hence, we find no fault in the impugned judgment that the case
0
  does not fall within the ratio of rarest of rare cases as envisaged
  by this Court. While considering the nature of offence we are
  of the considered opinion that the accused can be awarded a
  lesser punishment than death penalty. Therefore, in our view,
  the High Court was right in modifying the death sentence
E awarded by the Trial Judge to that of imprisonment for life.

         36. For the aforesaid reasons, we uphold the judgment
    passed by the Division Bench of the High Court. Resultantly,
    the appeals preferred by the State and the accused/appellants
    stand dismissed.

    Devika Gujral                                  Appeals dismissed.