Allahabad High Court
Raj Kumar And Ors. vs State Of U.P. on 1 March, 2002
Equivalent citations: 2002CRILJ2918
Author: J.C. Gupta
Bench: J.C. Gupta, Imtiyaz Murtaza
JUDGMENT J.C. Gupta, J.
1. All the four above named appellants have been sentenced to death under Section 302 read with Section 149 I.P.C. for committing the murder of Surendra Singh son of Rajvir Singh aged about 26 years. Appellant Rakesh has further been sentenced to two years R.I. and fine of Rs.2000/- for causing injuries to Smt. Krishna Devi, P.W.2, the mother of deceased Surendra Singh.
2. As per the prosecution case incident occurred on 13-6-1992 at about 8 p.m. near the house of Amilal in village Mithli within the area of police station Baghpat, which was then in District Meerut. Appellants Ram Kumar, Jai Prakash and Devesh Kumar were said to be armed with country made pistols while appellant Rakesh and co-accused Parvendra with PHARSA and SPEAR respectively. It is alleged that all the accused persons caused as many as 19 injuries to Surendra Singh from their respective weapons. Shrieks and cries of Surendra Singh attracted his mother Smt. Krishna Devi, P.W.2 and brother Udai Singh to the scene of occurrence from their 'Gher' which was placed at a distance of about 50 paces from the place of occurrence. Accused persons made an attempt on Udai Singh also but he ran to his house and saved his life by bolting the house from inside. Smt. Krishna Devi, P.W.2 showed courage and came forward to the rescue of her son whereupon she was assaulted with PHARSA and SPEAR. Accused persons then set Surendra Singh on fire with kerosene. In the meantime pressure of witnesses mounted whereupon accused ran away. They were identified by the witnesses in moon light as it was a night of full moon.
3. The motive behind this murder is said to be enmity. It is said that deceased and his family members had built a new house by the side of Raj Kumar appellant. About one week before the occurrence in question, plastering work was being done on the back and side walls of the complainant's house to which accused party objected and exclaimed that they would not allow the plastering. They also threatened to close the door which the complainant party had opened in their house. Deceased Surendra Singh was serving in armed forces and was posted in Assam. He had come to his village on leave a few days before the occurrence. Some first information reports had been lodged in the past by Surendra Singh against the accused party.
4. Regarding the present incident written first information report Ex.Ka-1 was lodged at police station Baghpat. by P.W. 1 Udai Singh in the same night at 21.45. Smt. Krishna Devi was medically examined at 11.10 p.m. on the same day by Dr. B.L.S. Khushwaha, P.W.6. He found following injuries on her person:
1. Incised wound 5 cm. x 3 cm. x bone deep on the left forearm 5 cm. above the left arm joint, margins clean cut, bleeding present. X-ray of left forearm advised.
2. Incised wound 3 cm. x 0.5 cm. x muscle deep, on the right ring finger palmer aspect, margin clean cut, bleeding present.
3. Incised wound 2.5 cm. x 1 cm. x muscle deep, on the right middle finger, margin clean cut, bleeding present.
4. Abrasion 25 cm. x 5 cm. on the left side of chest back, 12 em. below the top of left shoulder, oozing present.
5. Contusion 12 cm. x 3 cm. on the right side of chest back, 9 cm. below top of shoulder.
5. Autopsy on the dead body of deceased Surendra Singh was conducted by Dr. Naresh Kumar, P.W. 5. Following ante mortem injuries were found on the dead body of deceased Surendra Singh:-
1. Incised wound 7 cm. x 1/2 cm. x bone deep on right side head, 4 cm. from right ear and 6 cm. from right eye.
2. Incised wound 10 cm. x 2 cm. x bone deep on left side head side to side, 9 cm. from left eye.
3. Incised wound 4 cm. x 1/2 cm. x scalp deep on left side head, 2 cm. away from injury No. 2.
4. Incised wound 5 cm. x 1 cm. on left ear pinna cutting pinna through and through.
5. Incised wound 11 cm. x 4 cm. x bone deep on the face and nose, 3 cm. above upper lip and parallel to it.
6. Incised wound 8 cm. x 1 cm. x bone deep, little above the injury No.5 and parallel to it.
7. Incised wound 2 cm. x 1 cm. x muscle deep on outer aspect of right forearm, 24 cm. below right shoulder.
8. Incised wound 1 1/2 cm. x 1 cm. muscle deep on back of forearm, just below elbow joint.
9. Incised wound 4 cm. x 1 1/2 cm. x muscle deep on the back of right forearm, 2 cm. above the wrist joint.
10. Incised wound 5 1/2 cm. x 1 1/2 cm. on the front of right forearm, 2 cm. above right wrist joint.
11. Incised wound 3 cm. x 1 cm. x bone deep at the dorsum and root of right little and ring finger.
12. Incised wound 2.5 cm. x 1 cm. x muscle deep on the right nipple.
13. Incised wound 2.5 cm. x 1 cm. x muscle deep on the back of left elbow joint, 13 cm. below left elbow joint.
14. Incised wound 4.5 cm. x 1 cm. x bone deep on the dorsum and above left thumb and index finger.
15. Incised wound 5 cm. x 5 cm. x (Sic)
16. Incised wound 3 cm. x 1 cm. x bone deep on right side left, 8 cm. above ankle joint.
17. Incised wound 2 1/2 cm. 1 cm. x bone deep on right side leg, 22 cm. below knee joint.
18. Incised wound 5 cm. x 1 cm. x muscle deep on right side of abdomen, just above iliac crest.
19. Gun shot wound of entry 2 cm. x 2 cm. x chest cavity deep on left side chest, 7 cm. below scapula, 9 cm. from mid line.
6. In the opinion of the doctor there were burns showing ante mortem character at parts of neck, chest and abdomen. Post mortem burns on the head, face, chest and forearms were also found at places.
7. In the internal examination, skull bones were found cut. Left and right lungs were also found cut. Intestines were ruptured. Cause of death was shock and haemorrhage as a result of ante mortem injuries. In his deposition before the Court Dr. Naresh Kumar categorically deposed that ante mortem injury No. 19 could be caused by a country made pistol and rest of the injuries could be possible by PHARSA and SPEAR. The injuries were sufficient to cause death in ordinary course of nature. Death of deceased on account of ante mortem injuries was possible at about 8 p.m. on 13-6-1992. Post mortem report has been proved as Ex.Ka-5.
8. After registration of case at the police station P.W. 7 Inspector Sevak Ram Yadav conducted investigation. He recorded statements of witnesses including injured Smt. Krishna Devi on the night itself and then sent her for medical examination. In the morning he held inquest and sent dead body of Surendra Singh for post mortem examination with necessary papers. He also made inspection of the place of occurrence, prepared site plan Ex.Ka-12 and collected samples of blood stained and plain earth, empty cartridges, shoes, chappal, can of kerosene, Biri, match box etc. from the place of occurrence through memo Ex.Ka-13. On completion of investigation he submitted charge sheet Ex.Ka-14 against all the five nominated accused persons, who were duly tried by the learned Addl. Sessions Judge. It may be relevant to point out here that trial of Parvendra accused was separated by the order dated 21-2-2000 when the case was fixed for arguments as in the opinion of the trial Court the said accused was a juvenile on the date of commission of the offence.
9. Before the trial Court prosecution produced 8 witnesses, namely, P.W.I Udai Singh, P.W.2 Smt. Krishna Devi, P.W.3 Bachchan Singh, P.W.4 Budh Prakash, P.W.5 Dr. Naresh Kumar, P.W.6 Dr. B.L.S. Kushwaha, P.W. 7 Sevak Ram Yadav, the investigating officer and P.W. 8 Om Pal Singh; of whom only P.W. 1 and P.W. 2 were witnesses of fact.
10. The case of accused persons was of total denial and they stated of their false implication due to enmity. They produced no witness in defence.
11. On evaluation of evidence the learned Sessions Judge has found all the appellants guilty under Section 302 read with Section 149 I.P.C. and has awarded extreme penalty of death treating the case to be an exceptional one.
12. We have heard learned counsel for the appellant and the learned A.G.A. for the State.
13. It was submitted by learned counsel for the appellants that from the evidence on record conviction of appellants is not sustainable because both the witnesses have in clear words admitted that before they reached the scene of occurrence incident was over. It was further argued that as far as injured P.W.2 Smt. Krishna Devi is concerned, she has given a vacillating statement with regard to the manner of her sustaining injuries that indicates that on account of paucity of light she was not able to identify her assailants. Presence of moon light was a development, made at the trial. It was also argued that material witnesses have not been produced and, therefore, an adverse inference should be drawn against the prosecution. It was lastly argued that all the appellants could not be held vicariously liable with the aid of Section 149 I.P.C. as according to the witnesses they had not seen who out of the three fired at the deceased and it was also highly doubtful that any injury was caused by Spear. On the contrary learned A.G.A. argued that all the accused persons and deceased were of one family and, therefore, there was no chance of false implication. All the accused, persons were named in the F.I.R. with the weapons specified and the same was lodged with all promptness. P.W.2 Smt. Krishna Devi herself sustained injuries in the same incident and, therefore, her presence at the scene of occurrence cannot be doubted. She has named all the accused persons as assailants of the deceased who sustained as many as 19 injuries. It was submitted that since the deceased sustained a large number of injuries it was quite natural that he must have cried for help as a result of this alarm witnesses were attracted to the scene of occurrence from the 'Gher' situated nearby. It was further argued that it was a full moon light and as the accused persons were of same family, the witnesses could not be having any difficulty in identifying them and they being brother and mother of the deceased would be the last persons to falsely nominate them leaving out the real assailants. It was further pointed that other witnesses who were named in the F.I.R. had to be discharged as they had been won over by the accused persons. It was also submitted that the appellants cannot escape vicarious liability as in the facts and circumstances of the case constitution of unlawful assembly has been fully established and it has also been established beyond doubt that Surendra Singh was murdered in prosecution of the common object of that unlawful assembly.
14. Before we proceed to consider the various submissions made by counsel for the rival parties, it is just and appropriate to reproduce the pedigree for showing the inter-se relationship of the appellants with the deceased and other witnesses. This family tree is not disputed.
GRANSRYAM
I I
I I
I I
Jabar Singh Bhanwar
Singh
I I
I I
I Jai Prakash (accused)
I I
I I
I I I
Rajbir Singh Raj Kumar Krishnavir
Wife Smt. Krishna (accused) Singh
Devi, P.W.2 I
I I
I I
I
Surinder Udai Singh Devesh Rakesh
Singh (P.W.I) (accused) (accused)
(deceased)
15. The factum of death of deceased Surendra Singh on account of ante mortem injuries found on his dead body during post mortem examination has neither been disputed nor assailed before us by the learned counsel for the appellants. From the statements of eye witnesses and R. Naresh Kumar, P.W.5 who conducted autopsy there can be no doubt that deceased Surendra Singh died a homicidal death and as many as 18 incised injuries and one gun shot injury were caused to him as a result of which he died an instant death in the evening on 13-6-1992. In addition to these injuries the doctor also found a few burn marks of ante mortem character at some places of neck, chest and abdomen of the deceased while some post mortem burns were found on the head, face, chest and forearm of the deceased.
16. The prosecution case further is that in the same incident Smt. Krishna Devi, P.W.2 was also assaulted. Her injuries were medically examined at 11.10 p.m. on the same day by Dr. B.D.S. Kushwaha, P.W.6 who found three incised injuries on her person besides one abrasion and one contusion.
17. The question that arises for consideration is whether prosecution has succeeded in establishing that it were the appellants and co-accused Parvendra who committed the murder of Surendra Singh and caused injuries to Smt. Krishna Devi in the manner as alleged by the prosecution?
18. To substantiate the case against the appellants the prosecution produced before the trial Court only two witnesses, namely Udai Singh P.W.I and Smt. Krishna Devi P.W.2. Undoubtedly both were closely related to the deceased as P.W. 1 Udai Singh is the brother of deceased while Smt. Krishna Devi is his mother. Old enmity is said to be the reason behind this murder. We shall now deal with the evidence of these two witnesses in brief.
19. P.W.I Udai Singh in his statement before the trial Court stated of the motive. According to him all the accused persons are closely related to him and the deceased as is apparent from the family tree which we have already reproduced in the earlier part of this judgment. This pedigree is admitted to the appellants. According to this witness deceased Surendra Singh was serving in army and he was posted in Assam. During the days of incident he had come to village on leave. It has also been stated by this witness that Surendra Singh had lodged some first information reports against accused persons in the past, whose carbon copies he filed before the trial Court. He has further stated that the deceased and his family members had built a new house by the side of the house of Raj Kumar appellant. About a week before the present occurrence, plastering work was being undertaken on the back and side walls of the complainant's house. Accused party objected to it and declared that they would not allow the plastering over the said walls. They also extended threats that they would close the door which the complainant party had opened in their house. From the perusal of the copies of the previous F.I.Rs. and looking to the fact that the relations between accused persons and the deceased had become strained it cannot be said that accused persons had no motive to commit the murder of deceased. They were certainly having ire and ill will towards the deceased. Since the present case is based upon direct evidence of eye witnesses the inadequacy or insufficiency of motive is of no consequence. If the evidence of two eye witnesses on close examination is found reliable and trustworthy the question of adequacy of motive will be only academic.
20. Regarding the occurrence P.W. 1 Udai Singh has deposed that on the day of incident he was sitting in the Gher of Amilal. Time was about 8 p.m. There was light of full moon. All the five accused persons came there. Raj Kumar, Jai Prakash and Devesh were armed with country made pistols, Rakesh was having PHARSA while parvendra had a BALLAM (Spear) with him. First of all they fired upon Surendra Singh and thereafter he was assaulted with PHARSA and SPEAR. When the mother Smt. Krishna Devi P.W.2 went there to save Surendra Singh she was also assaulted with PHARSA and SPEAR. The witness further added that when the himself went to the rescue of his brother, all the accused persons rushed towards him but he saved his life by running to his house. Thereafter all the accused persons poured kerosene on Surendra Singh and set him on fire. Surendra Singh died on the spot. He further stated that after the incident, he wrote down the report in his own handwriting and lodged the same at the police station in the same night at 21.45 hours. He proved the F.I.R. as Ex.Ka-1. In the cross examination he has stated that Amilal's Gher was adjacent to his house. He has further stated that when on hearing the sound of fire shots he came out of the house and reached the place of occurrence. He saw that his brother Surendra Singh was lying on the ground and his mother had also been injured. Blood was oozing from her hand. By that time Surendra Singh was not set on fire. He himself saw accused persons setting Surendra Singh on fire. Rakesh appellant had sprinkled kerosene on Surendra Singh.
21. P.W.2 Smt. Krishna Devi is an injured witness. She has stated the entire facts relating to the occurrence in question. According to her, incident had occurred at about 8 p.m. At that time her son Surendra Singh was sitting in the Gher of Amilal. All, the accused persons came there. Raj Kumar, Jai Prakash and Devesh were having country made pistol while Parvendra and Rakesh were holding SPEAR and PHARSA respectively. Firing was made upon Surendra Singh and thereafter he was assaulted with SPEAR and PHARSA. When she came forward with a view to save her son, she was also assaulted. She categorically stated that as a result of assault, her hand was cut and bone fractured. She has also stated that, after causing injuries to her, the accused persons set Surendra Singh on fire after sprinkling kerosene. She has further stated that her injuries were medically examined in Primary Health Centre, Baghpat. In cross-examination she has stated that at the time of occurrence she was present in her house. Her son Surendra Singh was called by the accused persons through Amilal's son. On hearing cries' of her son she rushed to the scene of occurrence and saw Surendra Singh lying on the ground. She identified the accused persons in moon light. She further stated that when she reached there all the accused persons were standing near her son Surendra Singh with their respective weapons. It has also been stated by her that she was assaulted by Rakesh and Parvendra.
22. Both these witnesses stood firm during their cross- examination and nothing material could come out which may throw any doubt in the correctness of their version. Their evidence substantially tallies with the medical evidence. The fact that firing was also made is established from the gun shot injury found on the person of the deceased and was further corroborated by the recovery of three empty cartridges, which were found lying at the scene of occurrence when the investigating officer visited the place of occurrence.
23. It was vehemently argued by the learned counsel for the appellants that both the witnesses have admitted that they had not seen the actual assault upon the deceased and as three empty cartridges were found, the prosecution came with the case that all the three accused persons fired upon the deceased and this version is belied by the post mortem report as during post mortem examination only one gun shot injury was found. It was further submitted that there were large number of incised injuries but there was not even a single punctured wound and, therefore, the use of spear is wholly negatived. It is true that, the witnesses were attracted to the scene of occurrence on hearing sound of fire and by the time they could reach on the spot firing act was over. The mere fact that only one gun shot injury was sustained by the deceased would not make the prosecution case of firing of three shots doubtful as two shots might have missed the target. Dr. Naresh Kumar, P.W.5 had found as many as 18 incised injuries on the body of the deceased. It has not been asked from any witness as to what was the shape of the Spear and in what manner the same was used. We thus find no inconsistency between the ocular testimony and the medical evidence. Smt. Krishna Devi P.W.2 in clear words has stated that when she came forward to save her son she was also assaulted. This part of her statement gets full corroboration from the statement of Dr. B.D.S. Kushwaha, P.W.6 who had medically examined her on the same night at 11.10 p.m. In his deposition before the trial Court he has stated that injuries No. 1, 2 and 3 could be caused by sharp edged weapon while injury No. 4 could be the result of friction and injury No. 5 was caused by a blunt object. He has further opined that injuries Nos. 1, 2 and 3 could be the result of PHARSA and BALLAM blows while injury Nos. 4 and 5 could have been caused from the blunt side of these weapons. The injuries of Smt. Krishna Devi by no stretch of imagination could be self inflicted or self suffered. Since Smt. Krishna Devi P.W.2 had herself sustained injuries her presence at the scene of occurrence cannot be doubted. Further the nature, kind and seat of injuries fully support her claim that she sustained injuries on her person when she was trying to ward off the attack which was made upon her when she tried to intervene to save her son Surendra Singh. It could not be disputed from the appellants side that the night of incident was a full moon night. All the accused persons were thickly related to the witnesses being their own family members. Smt. Krishna Devi who herself sustained serious injuries at the hands of accused persons was naturally in their close proximity. In such a situation she would have easily seen the faces of the accused persons in the light of full moon. The fact that on the day of occurrence there was full moon, was checked and verified by the trial Judge from the 'Panchang' and the learned counsel for the appellants could not dispute before us that at the time of occurrence full moon light was available. P.W.I and P.W.2, therefore, could not be having any difficulty in identifying the accused persons, their own collaterals. Their statements that after making assault upon the deceased an attempt was made to burn him with the help of kerosene again gets support from the post mortem report wherein Dr. found burns at several places on the body of deceased. It cannot be expected that Smt. Krishna Devi P.W.2 being the mother of deceased would rope in wrong accused persons leaving out real killers of her own son. She would be the last person so as she must be interested in seeing that all those who killed her son and caused injuries to her are booked and convicted.
24. The F.I.R. of the case was lodged in the same night without any delay at 9.15 p.m. by P.W. 1 Udai Singh wherein all the accused persons were named with weapons and roles specified. There is nothing on record to doubt the authencity of the F.I.R. The F.I.R. of the present case thus has a great corroborative value.
25. It was next argued by the learned counsel for the appellants that as per the statements of two witnesses it was clear that the deceased was first called by the accused persons and by the time the witnesses reached at the scene of occurrence the incident of assault was over and the accused persons were only seen standing near Surendra Singh who was then lying on the ground. It was argued that in these circumstances all the accused persons could not be held vicariously liable for the murder of Surendra Singh with the aid of Section 149 I.P.C.
26. In the case of LALJI v. STATE OF U.P. (1989)1 SCC 437:(AIR 1989 SC 754) the Apex Court held that Section 149 creates a constructive or vicarious criminal liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. This Section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the persons perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149.
27. The Apex Court in the case of RAM JANAM PANDEY v. STATE OF BIHAR 1994 J.I.C. 1(SC) observed that common object can be inferred from various circumstances like the weapons with which the members were armed, their movement, the acts of violence committed by them and from the results thereof.
28. In short it is clear that the basis of the constructive guilt under Section 149 I.P.C. is mere membership of the unlawful assembly with the requisite common object or knowledge. If an offence has been committed by any member of unlawful assembly in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed each member is equally guilty though he may not be directly responsible for the death of deceased and in a case where Section 149 is applicable it is not obligatory upon the prosecution to prove as to what each accused actually did.
29. In the present case all the accused persons had already assembled with deadly weapons like fire arms, SPEAR and PHARSA and were waiting for the arrival of the deceased. They called him from their house through the son of Amilal and as soon as he arrived they assaulted him using fire arm, PHARSA and BALLAM. When Smt. Krishna Devi, mother of deceased came to his rescue, she was also not spared and was assaulted. The deceased was thereafter set on fire. After accomplishing their object, all the accused persons ran away together with their respective weapons. In these circumstances it could easily be inferred with certainty that all the accused persons were members of unlawful assembly whose common object was to commit the murder of deceased and in prosecution of the same death of deceased was caused. Therefore, Section 149 I.P.C. can be safely pressed into service to fasten vicarious criminal liability upon each appellant.
30. On a close scrutiny of the evidence of the two witnesses and the circumstances appearing in the case, we find that the prosecution case against the appellants has been established beyond any reasonable doubt. Accordingly their conviction under Section 302 read with Section 149 I.P.C. for committing the murder of Surendra Singh is upheld. Appellant Rakesh has further been found guilty under Section 324 I.P.C. by the trial Court for causing injuries to Smt. Krishna Devi, his conviction under that count is also upheld.
31. Now coming to the question of sentence, we find that the trial Court has awarded extreme penalty of death on all the appellants under Section 302 read with Section 149 I.P.C. treating the case to be 'rarest of rare cases'. The question that arises for consideration is whether the present case is one of those exceptional cases where the alternative option of lesser sentence of life imprisonment is unquestionably foreclosed ?
32. In the case of Bachan Singh v. State of Punjab A.I.R. 1980 SC 898 a Constitutional Bench of the Supreme Court after an exhaustive discussion of the relevant provisions like Sections 299, 300, 302 I.P.C; Section 235(2) and 354(3) of the Code of Criminal Procedure and Articles 13, 14, 19(2) to (6) and of the Constitution of India held, inter alia, that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law, that there are several other indications also in the constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and for certain other offences. While upholding the constitutional validity of the death penalty, the Apex Court further proceeded to consider the question of indicating the broad guidelines which should guide the Courts in the matter of sentencing a person under Section 302 I.P.C. It was also held that it cannot be over emphasised that the scope and concept of mitigating circumstances in the area of death penalty must receive a liberal and expansive construction by Courts in accord with the sentencing policy writ large in Section 354(3) Cr.P.C. Judges should never be blood thirsty. It clearly laid down that for the persons convicted of the offence of murder sentences of life imprisonment is the rule and death sentence is 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.
33. In a later decision in Machhi Singh v. State of Punjab A.I.R. 1983 SC 957 the Supreme Court made an in-depth examination of the principles laid down in Bachan Singh's case and formulated the following propositions for application to the facts of each case for determination of question.
i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
ii) 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';
iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
iv) A 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 the mitigating circumstances before the option is exercised.
34. After the introduction of Section 235(2) in the New Code of Criminal Procedure sentencing an accused has become a sensitive exercise of discretion and not a routine or mechanical prescription acting on hand. It is the duty of the Court to collect materials necessary to help award a just punishment in the circumstances of the case. The law makers with this end in view as enacted this new provision and compliance thereof as been made mandatory.
35. Hearing on the question of sentence is an integral part of the trial. In the case of Santa Singh v. State of Punjab A.I.R. 1976 SC 2386 it was held that compliance of Section 235(2) is mandatory. Hearing as contemplated under the said provision is not confined merely to hearing of oral submission but extends to giving an opportunity to the accused to place before the Court facts and materials relating to the factors bearing on the question of sentence.
36. In another decision in Allaudin Mia v. State of Bihar 1989 W.C. 911:(AIR 1989 SC 1456) the Apex Court held that Section 235(2) Cr. P.C. satisfies a dual purpose, it satisfied the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at some time helps the Court to choose the sentence to be awarded. The provision is clearly mandatory and should not be treated as a mere formality. Opportunity must be real and effective i.e. opportunity to the accused to place his antecedents, social and economic background, mitigating and extenuating circumstances etc. before the Court. The sentencing Court must appreciate the question seriously and must endeavour to see that all the relevant facts and circumstances> bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, the Court must pronounce the sentence.
37. Compliance of the aforesaid mandatory provision becomes all the more necessary in a case where the Court awards extreme penalty of death.
38. In the present case the order of conviction was pronounced on 15-12-2000 by the learned trial Judge. On the same day the learned Judge immediately proceeded to hear oral submissions of the counsel for the accused on the question of sentence. Thereafter taking into consideration only the aggravating circumstances the learned Judge has awarded the extreme penalty of death. It is thus crystal clear that the learned Sessions Judge has not made compliance of the provisions of Section 235(2) Cr.P.C. as the learned Sessions Judge merely heard oral submissions of the defence counsel on the question of sentence without giving any opportunity as envisaged in Section 235(2) Cr.P.C, which in our opinion has greatly prejudiced the appellants as they were deprived of a valuable right conferred upon them in law. All the appellants have been found vicariously liable for the offence of murder with the aid of Section 149 I.P.C. Most of the incised injuries of the deceased were muscle deep. Bones of head were found cut under injury Nos. 1 and 2. Who caused those injuries is not clear from the evidence on record. There was only one gun shot injury which had caused extensive damage to the lungs but who out of three, who were armed with fire arm, was the author of the said injury is not clearly borne out from the evidence on record. From, the fact that the deceased was also set on fire with kerosene, it cannot be conclusively inferred that the accused persons had intended to burn him alive inasmuch as several post mortem burns were found on the dead body. This might have been done only with a view to cause disappearance of evidence of murder. Statement of accused Rakesh under Section 313 Cr.P.C. was recorded on 15-9-1998 i.e. after about 6 1/2 years of the incident wherein he disclosed his age as 25 years, meaning thereby that at the time of occurrence he was about 18 - 19 years of age. Accused Devesh Kumar was aged about 28 years while Jal Prakash was aged about 32 years. Devesh and Rakesh are real brothers being sons of Krishnavir Singh. Accused Jai Prakash and Raj Kumar are their uncles. They thus all belong to one family. Deceased also belonged to their own family. Taking all the facts and circumstances of the case, we are of the view that the present case does not fall within the purview of 'rarest of rare cases' nor can it be held to be an exceptional case where lesser sentence of life imprisonment is unquestionably.foreclosed. It could also not be said that the appellants are such dangerous persons that to spare their life will endanger the community at large. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offenders. In this view of the matter, we are unable to uphold the order of death sentence passed by the learned Sessions Judge and we accordingly convert the Same to the sentence of imprisonment for life.
39. For the reasons stated above though we uphold the conviction of the appellants under Section 302 read with Section 149 I.P.C. but their sentence of death is set aside and converted to life imprisonment. Conviction and sentence of appellant Rakesh under Section 324 I.P.C. are also upheld. His sentences shall run concurrently. All the appellants are in Jail. They shall be detained there to serve out their respective sentences as modified by this Court.
40. Appeal is accordingly disposed of.
41. Reference made by learned Sessions Judge for confirmation of death sentence is rejected.