Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1187 OF 2006
STATE OF U.P. … APPELLANT
VERSUS
OM PRAKASH … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1186 OF 2006
RAM SWAROOP & ORS. … APPELLANTS
VERSUS
STATE OF U.P. … RESPONDENT
CRIMINAL APPEAL NO. 773 OF 2007
OM PRAKASH & ORS. … APPELLANTS
VERSUS
STATE OF U.P. … RESPONDENT
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2015.01.15
12:43:04 IST
Reason:
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JUDGMENT
N.V. RAMANA, J.
These appeals arise out of a common impugned judgment
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dated 23 September, 2005 of the Division Bench of High Court of
Judicature at Allahabad in various criminal appeals arising from the
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judgment and order dated 23 January, 2004 passed by the
Additional District & Sessions Judge (Special Judge, SC/ST Act),
District Pilibhit, Uttar Pradesh.
2. An FIR was lodged by the Complainant Lalta Prasad at the PS
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Bukhera, District Pilibhit, U.P. on 10 March, 2001 alleging that while
he along with Hem Raj, Moti Ram Kundan, 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/O Hori Lal appeared there with the
company of other accused carrying different types of arms and
attacked them. The motive behind their attack was that about ten
months prior to the incident, Imarati Devi, wife of accused No. 7 (Ram
Swaroop) had contested and lost the election for the post of Gram
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Pradhan and Ram Swaroop (accused No. 7) had threatened the
villagers to bear the brunt for not getting his wife elected to 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 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 (accused no.9), Baljeet (accused no.10) and Nanhey 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 (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.
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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 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 same on the khaprail of the Kothari and Ram Swaroop (accused
no. 7) set it ablaze from the front side and Uma 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 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.
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4. Having registered the case, SHO P.K. Sharma (PW 14) 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 arrested the accused Dharamveer
(juvenile), 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
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their possession. On 17 March, 2001 police arrested seven 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 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
Swaroop and Lalta Prasad bankas were recovered. Lathis were
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recovered from Chet Ram, Om Prakash S/O Hira Lal. While accused
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Lala Ram was arrested on 20 March, 2001, Ram Swaroop S/O Dal
Chand, Kunwar Sen, Shree Krishna and Om Prakash S/O Mansha
Ram surrendered in Court. Some 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 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, Section 7 of the Criminal Law
Amendment Act and Section 4 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.
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
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Chandra, Bhagwat Swarup, Lalta Prasad, 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. Imrati Devi and Smt. Sunita Devi are guilty for the offences
under Sections 147, 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. 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, Bhagirath, Budhsen, Baljit, Nanhey Lal, Ram
Swarup S/O Kanhai Lal were held guilty of the offence under Section
302/149, 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.
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7. Against their conviction and sentence, the accused 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, 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
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 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 to take into
consideration the magnitude of the offence committed by the accused
and without justification commuted the death sentence correctly
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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 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 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’ inviting death penalty to the offenders. But, the High
Court acted in complete disregard to the law settled by this Court and
shown lenience in the matter of sentence which will give rise and
foster a feeling of private revenge among the people leading to
destabilization of the society.
10. The criminal intention of the accused was proved beyond
reasonable doubt. When Imarti Devi, wife of accused No. 7 Ram
Swaroop fought the election of Gram Pradhan against Som Wati in
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which wife of accused No. 7 lost, the group of accused persons
alleged that no voting 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 festival of Holi, in which process five
innocent persons were 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.
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 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 public life was disturbed. It is thus an exceptional case, an
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offence against the society where the collective conscience of the
community was shattered by the diabolical acts of the accused
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 SCC 470, learned counsel 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 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
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
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were done to death and their body parts were cut down mercilessly.
Therefore, imposition of a sentence 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 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 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 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 grounds
so as to implicate political rivals by cooking up a false case against
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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 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 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 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 ½ kilometers from the place of
occurrence. Hence the prosecution story is totally unbelievable.
15. In the first information report, it was alleged that the dead body
of Moti Ram was lying in burnt condition inside the Kothari. Later on
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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 accused persons, but according to the
postmortem reports of Moti Ram and Hem Raj, there was only one
firearm injury on 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 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. 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
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allegation cannot 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 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 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 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.
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 35 accused persons armed with deadly weapons
played a bloody and gory holi with the complainant party
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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
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
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.
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 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
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 the doors and when they failed to break the doors,
the 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 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
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injuries on their persons. It was their sheer luck that they
saved 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 rifles and bankas and grievous injuries were
inflicted upon them. Therefore, in my opinion, accused
Ram Swarup S/O 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 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 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 U.P. (2003) 7 SCC 141 came
to the conclusion thus:
“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.
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 appellants would meet the ends of justice”.
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19. We have heard learned counsel for the parties. In the light of
submissions made by the counsel on either side, the point that arises
for consideration in the present appeal is 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
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 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.
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
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(PW 6) who had conducted postmortem on the dead bodies of other
victims. Dr. R.S. Sone, Medical Officer, Incharge, 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
untoward incident and the accused had actively participated in 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 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
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.
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These witnesses in clear and 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 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 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 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 accordingly, the issue is
answered.
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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 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 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 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 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 its imposition is
22
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 the 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 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
doctrine of proportionality of sentence vis-à-vis the crime, the victims
and the offender has been the greatest concern of the Courts.
26. This Court in Bachan Singh’s case has formulated certain
guidelines while stating that they are only instructive and not
exhaustive. This Court 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 desirability or
otherwise of retaining death penalty.
27. This Court in several cases reiterated 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 of the rare
cases.
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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 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 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 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
Maharashtra 2011 (12) SCC 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
24
be heinous or brutal but may not be in the category of ‘the rarest of
the rare case’. There must be no reason to 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 and harmonious
coexistence. The 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 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 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.
25
31. In Santosh 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 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.
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 advanced by the prosecution
witnesses, there is no doubt that the accused had tried to kill the
victims. When the victims tried 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 for not
casting their votes in favour of the wife of accused No. 7 who had lost
26
the election, the accused party attacked the victims. It has come on
th
record that the incident took place on 10 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 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 in their favour in the elections.
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 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 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
27
that the case falls within the category of “the rarest of the rare cases”,
warranting imposition of death 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 gruesome nature. At
the same, it is to be borne in mind that the accused were on a
rampage and running berserk with the only sense triggered by the
thrust 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 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 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
28
the case 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 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.
…..………………………………………...J.
(SUDHANSU JYOTI MUKHOPADHAYA)
.…...….....………………………………J.
(N.V. RAMANA)
NEW DELHI
JANUARY 13, 2015
29
ITEM NO.1A COURT NO.4 SECTION II
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO. 1187/2006
STATE OF U.P. .....APPELLANT
VERSUS
OM PRAKASH …..RESPONDENT
WITH
CRIMINAL APPEAL NO. 1186/2006
WITH
CRIMINAL APPEAL NO. 773/2007
Date : 13/01/2015 These appeals were called on for pronouncement
of judgment today.
For Appellant(s) Mr. Raj Singh Rana,Adv.
Mr. Anurag Singh, Adv.
Mr. K.L. Janjani, Adv.
Mr. Harbans Lal Bajaj, Adv.(A.C.)
For Respondent(s) Mr. Gaurav Bhati, AAG
Mr. Ameet Singh, Adv.
Mr. Anuvrat Sharma, Adv.
Hon'ble Mr. Justice N.V.Ramana pronounced the
reportable Judgment of the Bench comprising Hon'ble Mr.
Justice Sudhansu Jyoti Mukhopadhaya and His Lordship.
The appeals are dismissed in terms of the signed
reportable Judgment.
(Rajni Mukhi) (Suman Jain)
Sr. P.A. Court Master
(Signed reportable Judgment is placed on the file)