JUDGMENT
N. Dhinakar, J.
1. Crl.A.No.1335 of 2002 is by the fourth accused (A4) and Crl.A.No.1431 of 2002 is by accused 1 to 3 (A1 to A3) in Sessions Case No.79 of 1999 on the file of the learned Additional Sessions Judge, Tiruvannamalai District, and Referred Trial No.4 of 2002 is by way of a reference of the learned Sessions Judge for the confirmation of the death sentence imposed upon the appellants. The two appeals filed by A1 to A4 and the Referred Trial are being disposed of by the following common judgment.
2. In this judgment, for the sake of convenience, the appellants in Crl.A.No.1431 of 2002 and the appellant in Crl.A.No.1335 of 2002 will hereinafter be referred to as accused 1 to 4 (A1 to A4) respectively. The acquitted accused, A5 to A7, who were tried along with the appellants, will be referred to in the order they were arrayed before the learned Sessions Judge. Rayappan and Philips @ Philips Raj, who, according to the prosecution, participated in the incident and who died before the framing of charges, will be referred to as deceased-accused 1 and 2 (DA1 and DA2) respectively. The four deceased in this case, Mani, Pitchaikaran, Kannan and Poongavanam, will be referred to as deceased 1 to 4 (D1 to D4) respectively.
3. The learned Sessions Judge framed a charge under Section 148 against A1 to A6 and under Charge No.2, A7 was charged under Section 147 IPC. Charge No.3 was framed against A1 to A7 under Section 302 r/w 149 IPC under four counts. Under Charge No.4, A1 to A7 were charged under Section 307 r/w 149 IPC under two counts and Charge No.5 was framed against A1 to A7 under Section 201 r/w 149 IPC. The learned Sessions Judge, on the evidence adduced, while acquitting A5 to A7 of the charges with which they were charged, convicted A1 to A4 and sentenced each of them to suffer rigorous imprisonment for one year under Charge No.1. A1 to A4 were also convicted and sentenced to death under Section 302 r/w 149 IPC (four counts). Similarly, the learned Sessions Judge found A1 to A4 guilty under Section 307 r/w 149 IPC (two counts) and sentenced each of them to suffer rigorous imprisonment for a period of four years. For the offence under Section 201 r/w 149 IPC, A1 to A4 were convicted and each of them was sentenced to undergo rigorous imprisonment for two years. Aggrieved by the said order of conviction and sentence, the appeals are preferred and the reference is made by the learned Sessions Judge for the confirmation of the death sentence.
4. The case of the prosecution, as could be seen from the oral and documentary evidence, is as follows:- D3 is the father of D1, D2 and D4. DA1 is the father of DA2. A1, A2, A3, A5 and A6 are the sons of DA1. A7 is the wife of DA1. A4 is the brother of A7. P.W.1 is the wife of D3. P.W.2 is the wife of D2 and P.W.3 is the wife of D4. P.W.6 is the brother of D3. P.Ws.4 and 5 are the neighbouring land- owners of D1 to D4. The prosecution witnesses and the deceased were residing at Kalnattu village and the accused were the residents of Sagayapuram in the adjacent village, which was divided by a land in between. There was a poromboke land in between the house of the deceased and that of the accused. One Chinnayan in the village obtained patta from the Government for the said poromboke land; but, the prosecution witnesses prevented Chinnayan from enjoying the land, claiming that they are in possession of the said land. D3 and P.W.6 took efforts to cancel the patta granted in favour of Chinnayan and succeeded. DA1 and A4 later purchased the land from Venugopal, the son of the said Chinnayan, as a result of which, a quarrel ensued between the deceased party and the accused party. A panchayat was convened and at the panchayat, the prosecution witnesses and the deceased informed the panchayatdars that since the land is in their possession, they should not be disturbed; but, the panchayatdars did not agree. DA1, thereafter, filed a civil suit against D3 and P.W.6.
5. Two years prior to the date of incident, DA1 raised sugarcane crop in the land and after harvesting the crop, attempted to take the sugarcane through the lands of the prosecution witnesses, to which the deceased-persons objected. A village elder intervened and requested the deceased party to permit the accused to remove the sugarcane through their lands and therefore, the deceased party permitted them. A7, the wife of DA1, used abusive language and therefore, the prosecution witnesses refused permission to the accused for removing the sugarcane crops through their fields. A7 threatened the prosecution witnesses and the deceased-persons, saying that she will not rest at peace without cutting them. She also instigated her husband and her children to cut the witnesses. DA1 also instigated his children to cut them. This is said to be the motive for the incident, which took place at 8.15 a.m. on 15.9.1997.
6. At about 8.00 a.m. on 15.9.1997, D1 Mani went to the house of P.W.1, and D2 Pitchaikaran and D4 Poongavanam were ploughing their fields. Raman, an agricultural coolie, was cutting the ridge. D1 asked Raman to make arrangements to get agricultural labourers for agricultural operation. P.W.3 informed D1 that the accused party is cutting the branches of the trees and asked him as to why he should not question the accused party for that conduct. D1, looking at DA1, questioned him as to why he is cutting the leaves and branches of trees. DA1, DA2 and the accused were present. A7 was not there at that time. DA1 questioned D1 as to how he, having come to their place, can take them to task and so saying, he held the tuft of D1. A2 caught hold of D1. DA2 cut D1 on his neck with a koduval, which he had in his hand. DA1 also cut him on the chest and head. D1 fell down. D2 was cut by A1 on the head twice and on receiving the cuts, D2 fell down. The son of D2, Govindasamy, aged about 7 years, went there. A5 and A6 waylaid him. P.W.4 took away Govindasamy. D3 went to the rescue of his son and DA1 held him from behind. A3 cut him on the head and DA2 cut him on the neck. D3 fell down. On seeing D4, who rushed there, P.W.3, his wife, intervened; but, D4 was cut by A4 and A5 and on receiving the cuts, he fell down. P.W.3 was cut by A2 four times, as a result of which, P.W.3 suffered injuries on the face and also on her left eye. A6 cut P.W.3 on the head. P.W.3 fell down. P.W.5, the neighbour, who was present, came and intervened and DA1 threatened him that if he intervenes, he will also be cut. P.W.2, the wife of D2, when intervened, was cut by DA1 and as a result of the said cut injury, the left thumb of P.W.2 was almost severed and it was hanging by the tag of skin. D1 to D4 died at the spot. DA1 asked A3 to bring kerosene and a match box and the bodies of D1 to D3 were placed on the poromboke land and kerosene was poured over the bodies. Thereafter, the dried cudgen leaves were placed on the bodies and the accused also attempted to burn D4 and his wife P.W.3, thinking that P.W.3 was also dead. In the meantime, the villagers ran to the scene and on seeing this, the accused party set fire to the bodies of D1 to D3 with a match stick and ran away from the place taking along with them, the kerosene tin as well as the aruvals. This was at 8.30 a.m.
7. On receipt of the information, P.W.8, the Village Administrative Officer, reached the scene of occurrence, to whom, the incident was narrated by P.W.1 and the statement was reduced into writing. The said statement is Ex.P-1. P.W.8 prepared his report and sent Ex.P-1 with his report to Thanipadi Police Station, and they were received by P.W.22, the Sub-Inspector of Police, at 10.30 a.m. P.W.22, on receiving Ex.P-1, registered a case in Crime No.439 of 1997 under Sections 147, 148, 302, 307, 326 and 201 r/w 149 IPC, by preparing express reports. Ex.P-36 is a copy of the printed first information report. Investigation was taken up by P.W.29, the Circle Inspector of Police, Thanipadi Circle.
8. P.W.29, on taking up investigation, reached the police station, from where, after obtaining a copy of the printed first information report, he proceeded to the scene of occurrence. At the scene of occurrence, on coming to know that caste elements were setting fire to the churches and in order to prevent the communal clash, went to visit those places and later, returned to the scene of occurrence at 11.00 a.m., where he prepared an observation mahazar, Ex.P-7. He also drew a rough sketch, Ex.P-40. The partly burnt bodies of D1 to D3 and the body of D4 were identified by the witnesses. The dead bodies and the scene of occurrence were caused to be photographed. On receipt of the information about the murders, the Superintendent of Police, the District Collector, the Tahsildar and other higher officials reached the scene of occurrence. He seized blood-stained and sample earth and other material objects, M.Os.15 to 30, under a mahazar Ex.P-8, at about 11.45 a.m. He conducted inquest over the dead body of D1 between noon and 1.00 p.m. in the presence of panchayatdars and Ex.P-41 is the inquest report. After the inquest was over, the dead body of D1 was handed over to a police constable along with a requisition, Ex.P-19, to the doctor for conducting autopsy. Thereafter, he conducted inquest over the body of D2 between 1.00 p.m. and 2.00 p.m. by preparing Ex.P-43, the inquest report and thereafter, a requisition, Ex.P-13, was issued to the doctor for conducting autopsy. In the meantime, P.W.22, the Sub-Inspector of Police, conducted inquest over the body of D3 between noon and 1.00 p.m. and the inquest report prepared by him is Ex.P-44. After the inquest, the body of D3 was sent to the hospital along with a requisition, Ex.P-17, for conducting autopsy. Inquest over the body of D4 was conducted between 2.00 p.m. and 3.00 p.m. and Ex.P-45 is the inquest report and after the inquest was over, the dead body was sent to the doctor along with a requisition, Ex.P-15, for conducting autopsy.
9. On receipt of the requisition, P.W.10, the Civil Assistant Surgeon attached to Government Hospital, Thanipadi, conducted autopsy on the body of D2 and found the following ante-mortem injuries, which he noted in Ex.P-14, the post-mortem certificate:-
1.An incised (chop) wound left parietal frontal 10 cm x 3 cm x bone-deep exposed bone found to be linear fracture.
2.An incised wound of 10 cm x 3 cm x bone-deep – 4 cm by the left side of the first injury.
In the post-mortem certificate, the doctor gave his opinion that D2 died on account of shock and haemorrhage due to the injuries sustained by him about 6 to 8 hours prior to autopsy.
10. P.W.10 also conducted autopsy on the body of D4 and found two incised wounds, one over the right side head above earlobe measuring 3 cm x 2 cm, which was bone-deep, and the other over the head measuring 2 cm x 1 cm, which was skin-deep. P.W.10 issued Ex.P-16, the post-mortem certificate, with his opinion that D4 died on account of shock and haemorrhage due to the injuries sustained by him about 8 to 10 hours prior to post-mortem.
11. On receipt of the requisition, P.W.11, Senior Assistant Surgeon, Government Hospital, Tiruvannamalai, conducted autopsy on the body of D3 and found two incised wounds, one on the front of lower neck measuring 15 cm x 3 cm x 5 cm, which exposed out trachea, vessels and muscles, and the other on the right side of the parietal region of the scalp measuring 6 cm x 2 cm, which was bone-deep. The doctor issued Ex.P-18, the post-mortem certificate, with his opinion that D3 died on account of shock and haemorrhage due to the injuries sustained about 6 to 8 hours prior to post-mortem.
12. P.W.12, Medical Officer, Government Hospital, Tiruvannamalai, on receipt of the requisition, conducted autopsy on the body of D1 and found the following injuries:-
1.An incised (chop) would over upper front of neck, elliptical size 10 cm x 5 cm x 5 cm exposing cut Hyoid bone, larynx, blood vessels, muscles.
2.An incised (chop) wound 5 cm x 3 cm x 2 cm vertical over left pectoral area.
The doctor issued Ex.P-20, the post-mortem certificate, with his opinion that D1 died on account of shock and haemorrhage due to the injuries sustained 8 to 10 hours prior to autopsy.
13. In the meantime, P.W.2, who suffered injuries during the course of the same transaction, left the scene of occurrence and went to the house of D1 and informed the family members and thereafter, she was taken by P.W.7 in a moped to the Government Hospital at Thanipadi and as there was no doctor available at Thanipadi, she went to Government Hospital, Tiruvannamalai, and appeared before P.W.12 at 10.20 a.m., who, on examining her, found the following injuries, which he noted in the accident register, Ex.P-21:-
1.An incised wound over left side forehead just above the eyebrow 2 1/2 cm x 1 cm x 1 cm edges clean.
2.An incised wound over 1st web space from tip of thumb (left) to the bone of 1st metacarpal bone exposing, carpo metacarpal joint, muscles, blood vessels and nerves, thumb hanging with a tag of skin over the bone.
The doctor gave his opinion in the accident register that injury no.1 is simple and injury no.2 is grievous in nature.
14. P.W.3, who suffered injuries, was taken and produced before P.W.27, Civil Surgeon, Government Headquarters Hospital, Tiruvannamalai District, by a neighbouring land-owner, and the doctor, on examining her, found the following injuries:-
1. An incised wound measuring 9 cm x 3 cm x upto the bone-depth in left parietal bone. Edges sharp.
2. An incised would measuring 9 cm x 3 cm x upto the bone-depth right parietal bone, edges sharp.
3.An incised wound measuring 9 cm x 3 cm x upto the bone-depth just above the left eyebrow.
4. A lacerated injury measuring 5 cm x 2 cm x upto bone-depth, left cheek.
5. An incised injury ‘V’ shape 9 cm x 3 cm x upto bone-depth, centre of the head.
The doctor issued Ex.P-39, the accident register, and since P.W.3 had serious injuries, she was admitted in the hospital and later, she was referred to Christian Medical College Hospital, Vellore, and was examined by P.W.23, who issued Ex.P-37, the wound certificate, wherein, the following injuries are found noted with the opinion of the doctor that the injuries are grievous in nature:-
1.3 cm internal laceration over the left cheek 3 cm lateral to the outer canthus of eye.
2.2 cm vertical laceration on the left anterior part of face parallel to the nose.
3.6 cm laceration on the left parietal scalp (sutured).
4.’Y’ shaped laceration on the right fronto partietal scalp (sutured) with underlying haematoma.
Thereafter, P.W.3 was examined by P.W.24, the Opthalmologist, who issued Ex.P-38, the opthalmic report, opining that the injury to the eye is grievous, since the left eyeball movements have been restricted and has severe conjunctival chemosis and there is no possibility of suturing the eyeball to prevent sympathetic opthalmitis in the right eye.
15. In the meantime, P.W.29, continuing with his investigation, handed over the partly burnt bodies to the relatives of the deceased. He questioned the witnesses and recorded their statements. The clothes, which the deceased-persons were wearing at the time of incident, were also seized under a mahazar. He searched for the accused. Meanwhile, Judicial Magistrate No.2, Vellore, on the requisition issued by the medical authorities, went to Christian Medical College Hospital, and questioned P.W.3 and recorded a statement from her, which stands marked as Ex.P-2 in the case. P.W.29 questioned P.W.2 on 16.9.1997 and recorded her statement. On 17.9.1997, he questioned P.W.3 at Christian Medical College Hospital, Vellore, and recorded a statement from her. On 18.9.1997, P.W.29 arrested DA1, DA2, A1, A2, A3 and A4 and they were questioned in the presence of witnesses. A1 gave a statement and in pursuance of the admissible portion of the statement, Ex.P-9, A1 took the police party to the land of DA1 and from the western side, produced an empty kerosene tin, M.O.31, which was seized under a mahazar Ex.P-10. At about 4.15 p.m., M.Os.1 to 6, the aruvals, which were kept buried, were produced and the same were seized under a mahazar, Ex.P-11. The accused were later brought to the police station and locked up. The clothes worn by the accused were seized under Form 95, after they were asked to change their clothes. The material objects, seized in the case, were sent to court with a request to forward them for analysis. On 23.9.1997, he arrested A7, who was later sent to court for remand. After completing the investigation, the final report was filed against the accused on 15.12.1997. On 26.12.1997, A5 was arrested and was sent to court for remand. A6 surrendered before the court, later.
16. The accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them and all of them denied their complicity in the crime and they did not examine any witness on their side.
17. The case of the prosecution is that four persons were murdered and two persons were injured at about 8.15 a.m. on 15.9.1997 and that the murders were committed by the appellants, who are accused 1 to 4, and others. Two of the accused, who allegedly participated in the incident, died before framing of charges and the learned Sessions Judge acquitted three accused, who were arrayed as A5 to A7, and the State has not chosen to prefer any appeal against the acquittal of the said accused. This court, therefore, has to consider the appeals filed by A1 to A4, to find out whether, as alleged, they participated in the incident and committed the murder of four persons.
18. The prosecution, before the trial court, examined three doctors, who conducted autopsy on the bodies of D1 to D4 and they are P.Ws.10, 11 and 12. P.W.10 conducted autopsy on the bodies of D2 and D4, P.W.11 on the body of D3 and P.W.12 on the body of D1. Ex.P-20 issued by P.W.12, is the post-mortem certificate in respect of the post-mortem conducted on the body of D1. P.W.10 issued Exs.P-14 and 16 for the post-mortems conducted on the bodies of D2 and D4 respectively. Similarly, P.W.11 issued Ex.P-18, after conducting autopsy on the body of D3. The above three doctors have, in their evidence, stated that they found injuries on the dead bodies and those injuries could have been caused with sharp-edged weapons and the deceased-persons would have died on the account of the injuries sustained by them. On the medical evidence, we hold that all the four persons died on account of homicidal violence, which fact was not disputed by the defence either before the trial court or before this court.
19. The prosecution, before the trial court, examined 5 witnesses to establish that the injuries, which caused the death of D1 to A4, were inflicted by the appellants/A1 to A4 and DA1 and DA2 and of the 5 witnesses, P.Ws.2 and 3 are the injured witnesses. It is the case of P.W.2 that during the course of the same transaction, not only the four deceased-persons suffered injuries; but also, she and P.W.3 suffered injuries. P.W.12, the doctor, who examined P.W.2 and who issued Ex.P-21, the accident register, has, in his evidence, stated that on examining her at about 10.20 a.m., he found the injuries, which he noted in the accident register, Ex.P-21, and that the said injuries could have been caused with a sharp-edged weapon. P.W.3 was examined by P.W.27, the doctor, who issued Ex.P-39, the accident register and later, she was treated by P.W.23, who issued Ex.P-37, the wound certificate, and P.W.24, the Opthalmologist, who examined P.W.3, issued Ex.P-38, the Opthalmic report, and they have, in their evidence, stated that one of the injuries suffered by P.W.3, is grievous in nature, since she has lost her left eye-sight. The injuries on P.Ws.2 and 3, therefore, indicate that they were also present at the time of incident and had the opportunity of witnessing the incident.
20. All the witnesses are related to D1 to D4 and similarly, the accused are also related to each other. It is the case of the prosecution as brought out through the eye-witness, P.W.1, as well as through the evidence of P.W.6 that there was a long-standing enmity between the two groups as regards the enjoyment of the poromboke land. The evidence clearly shows that the Government gave patta to the said poromboke land to one Chinnayan and later, the deceased party succeeded in getting it cancelled; but, in spite of the cancellation of the patta, the son of Chinnayan, Venugopal, sold the said land to the accused party and the deceased party was claiming that they are in possession of the land and was not allowing the other side to enjoy the said land. It can also be seen from the evidence that the deceased party was not permitting the accused party to transport sugarcane through the fields and a panchayat had to be convened and later, quarrels arose on account of that.
21. Even on the date of incident, when D1 visited P.W.1, D3, his father, told him that since the accused are cutting the branches and leaves of trees, he must question them and thereafter, D1 asked DA1 as to why they are creating problems by cutting the branches and leaves of the trees, which led to the attack. On going through the evidence of P.Ws.1 to 5, we do not find any infirmity for us to hold that they had come out with a false version. It is, of course, true that they are related to the deceased; but, that, by itself, cannot be a ground to reject their evidence and as we have already held, P.Ws.2 and 3 have also suffered injuries, during the course of the same transaction and they were examined by the doctors. The defence has no explanation for the injuries found on the two witnesses and in the absence of any explanation by the defence and in view of the categorical assertion of the witnesses on oath that they suffered injuries at the hands of the accused at the time of incident, we cannot but hold that they were present and witnessed the incident. The occurrence, according to the prosecution, took place at 8.15 a.m. and the complaint was given to the Village Administrative Officer at 9.00 a.m. when he reached the scene of occurrence, on getting information about the attack. The said complaint reached the hands of the police by 10.30 a.m. and P.W.22, the Sub-Inspector of Police, registered a crime at Thanipadi Police Station. In the said complaint, the names of the accused were found mentioned as persons, who participated in the incident. The evidence of the eye-witnesses is also supported by the doctors, who conducted autopsy on the dead bodies and we, therefore, hold that P.Ws.1 to 5 were present and witnessed the incident.
22. The learned counsel appearing for A2 strenuously contends that since in Ex.P-1, no specific overt act was attributed to A2, it cannot be said that, he shared the common object of the other accused. It is his further submission that in Ex.P-2, the statement given by P.W.3 to the Judicial Magistrate, the said witness has not whispered a word about A2 and therefore, A2 must get the benefit of doubt. The learned senior counsel appearing for A4, who is the appellant in Crl.A.No.1335 of 2002, submits that the prosecution did not have a consistent case as against A4 and that P.W.4 came out with a version that it was A5 who cut D4 and that the said evidence of P.W.4 was contradicted by P.W.5, who has, on oath, stated that D4 was cut by A5 and A6 and according to the senior counsel, since P.W.4 did not implicate A4 and in view of the evidence of P.W.5 that A5 and A6 inflicted the two cut injuries found on D4, it is not safe to convict A4.
23. We will now take up the contention raised by the counsel on behalf of A2. It is, of course, true that in Ex.P-1, A2 was not attributed with the overt act of holding the hands of D1 from behind. It is to be remembered that Ex.P-1 was given by P.W.1 within half-an-hour of the incident and it is not difficult to visualise the mental state, in which P.W.1 must have been placed, since she was an eye-witness to the murder of four persons and the accused not only murdered the deceased, but also attempted to set fire to the dead bodies. In that state of affairs, when P.W.1 gave a complaint, it is quite understandable that she did not give the minute details and had given only the details as regards the attack mounted on the deceased-persons by the respective accused. Since A2 did not specifically use the weapon and attack any of the deceased, she would have missed mentioning that A2 held the hands of D1 from behind. It is worthwhile to remember, at this stage, that after the investigation was taken up by P.W.29, the inquest was conducted between noon and 1.00 p.m. over the dead body of D1 and P.W.1, who was one of the witnesses, was examined at that time and she gave a statement and the inquest report, Ex.P-41, prepared by P.W.29 shows that A2 was attributed with the overt act of holding the hands of D1 from behind at the time of incident.
24. Similarly, we are unable to reject the prosecution version as against A2 on the ground that in Ex.P-2, P.W.3 did not mention the name of A2. The said statement was admittedly recorded by the Magistrate, when she was in the hospital and a perusal of Ex.P-2 shows that P.W.3 has implicated only DA1, DA2 and A1 and has generalised her statement by stating that 8 persons have cut her and her husband. In the said statement, she has not mentioned anything about the attack mounted on the other deceased or on D1. It is a general statement, wherein the names of DA1, DA2 and D1 alone are mentioned and from this, it cannot be said that A2 did not participate in the incident. The contention of the counsel that since the statement of P.Ws.2 and 3 reached the hands of the learned Magistrate on 17.12.1997, i.e. two months after their examination, the case of the prosecution is to be rejected as against A2, is to be stated only to be rejected, in view of the fact that the inquest reports prepared by the officer were received by the learned Magistrate on 17.9.1997 itself, wherein it is found noted that A2 not only participated along with others, but also held the the hands of D1 from behind. It is true that A2 did not cause any injury, but only held the hands of D1 from behind and he was charged under Section 149 IPC. But, from this, it cannot be said that he did not share the common object of the unlawful assembly.
25. In GANGADHAR BEHERA AND OTHERS v. STATE OF ORISSA , the Supreme Court held that the crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141 IPC and it cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The Supreme Court went on to hold that the only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC and the word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all and in other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. The Apex Court further observed that a common object may be formed by express agreement after mutual consultation, but that is, by no means, necessary and it may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it and once it is formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 IPC have to be strictly construed as equivalent to ‘in order to attain the common object’ and it must be immediately connected with the common object by virtue of the nature of the object and there must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object, may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this, the effect of Section 149 IPC may be different on different members of the same assembly. The Supreme Court held that ‘common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before the attack and it is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve the object and the ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances, it may be gathered from the course of conduct adopted by the members of the assembly.
26. When we apply the principles enunciated by the Supreme Court to the facts of this case, it can be seen that all the accused were armed with weapons and when questioned by D1, DA2 started the attack by cutting him, followed by DA1. At that time, A2, who was also present, held the hands of D1 from behind and it cannot be said that A2 did not know the nature of the attack mounted by DA1 and DA2. In fact, the attack by the other accused on the witnesses and the other deceased continued, resulting in the death of four persons and injuries to two others. We are, therefore, of the view that the contention of the learned counsel is to be rejected and it is, accordingly, rejected and in our view, the conviction of A2 is not bad in law.
27. We will now take up the case against A4. As we have stated earlier, A4 was attributed with the overt act of cutting D4. P.Ws.1 to 3 have implicated A4 and A5 as persons, who inflicted two cut injuries found on D4; but, P.W.4, the other eye-witness, did not mention about the attack on D4 by A4 and his evidence is contradicted by P.W.5. P.W.5 has, in his evidence, stated that D4 was attacked by A5 and A6 and the name of A4 is not mentioned by either P.W.4 or P.W.5. On the contrary, as we have stated earlier, according to P.W.5, it was A6, who joined A5, in attacking D4. The doctor found two cut injuries on D4, which means that the two cut injuries could have been caused by a single individual or by two persons and if it is the case of the prosecution that the two injuries were caused by two different individuals, then it must have a consistent case. But, on the contrary, we find inconsistency in the evidence of the eye-witnesses, since, though, according to P.W.3, A4 also participated along with A5 in inflicting one of the cut injuries on D4, P.W.4 did not implicate A4, whereas P.W.5 had come out with a version that it was A6, who joined A5, in inflicting one of the cut injuries on D4. In view of this vital contradiction between the witnesses, we find it unsafe to convict A4 and therefore, we give the benefit of doubt to him. Accordingly, A4 is acquitted of all the charges, with which he was charged. In the result, the conviction of A1, A2 and A3 are confirmed.
28. The last question, that is to be decided by us, is the nature of punishment to be awarded to the accused. In BACHAN SINGH v. STATE OF PUNJAB , the Supreme Court held that for making the choice of punishment or for ascertaining the existence or absence of ‘special reasons’ in that context, the court must pay due regard both to the crime and the criminal and what is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator and that is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore, all murders are cruel. But, such cruelty may vary in its degree of culpability and it is only when the culpability assumes the proportion of extreme depravity that ‘special reasons’ can legitimately be said to exist. The Supreme Court, in the said judgment, held that in the exercise of its discretion, the court shall take into account the following circumstances:-
1.That the offence was committed under the influence of extreme mental or emotional disturbance.
2.The age of the accused. If the accused is young or old, he shall not be sentenced to death.
3.The probability that the accused wound not commit criminal acts of violence as would constitute a continuing threat to society.
4.The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
5.That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
6.That the accused acted under the duress or domination of another person.
7.That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
29. In MACHHI SINGH AND OTHERS v. STATE OF PUNJAB [1983 SCC (Cri) 681], the Supreme Court held that before awarding death sentence, the following questions may be asked and answered as a test to determine the ‘rarest of rare’ case in which death sentence can be inflicted:-
1.Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
2.Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
The Supreme Court went on to hold that the guidelines which emerge from Bachan Singh case, will have to be applied to the facts of each individual case, where the question of imposition of death sentence arises. It was further held that in rarest of rare cases, when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power-centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:-
1.When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
2.When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
3.When murder of a member of a Scheduled Case or minority community, etc. is committed not for personal reasons, but in circumstances which arouse social wrath; or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4.When the crime is enormous in proportion. For instance, when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
5.When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
The Supreme Court is of the view that if upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare case, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
30. When we apply the tests as enunciated by the Supreme Court in the above judgments, we are unable to hold that the present case is a rarest of rare case, where the accused are to be sentenced to death.
31. In BACHITTAR SINGH AND ANOTHER v. STATE OF PUNJAB , the Supreme Court reduced the sentence of death to imprisonment for life, even though 8 persons were murdered on the ground that it was not a rarest of rare case.
32. In LEHNA v. STATE OF HARYANA (I (2002) SLT 502], the Supreme Court, after considering all the earlier judgments on the subject, held that it is not a rarest of rare case for a death sentence to be awarded and in the case before the Supreme Court, the murder was committed on account of a land dispute between the parties.
33. On considering the principles laid down by the Supreme Court and applying them to the facts of this case, we feel that the extreme penalty is not called for in this case. We, therefore, while acquitting A4 of the charges, with which he was charged, on account of the unsatisfactory evidence, confirm the conviction and sentence imposed upon A1 to A3 under Sections 307 r/w 149 IPC (two counts), 201 r/w 149 IPC, and 148 IPC and we confirm the conviction imposed upon A1 to A3 under Section 302 r/w 149 IPC (four counts); but, the sentence of death imposed upon them, is modified to one of imprisonment for life.
34. In the result, with the above modification in sentence, Crl.A.No.1431 of 2002 is dismissed and Crl.A.No.1335 of 2002 is allowed. The reference of the learned Sessions Judge is answered accordingly. It is reported that A4, the appellant in Crl.A.No.1335 of 2002, is in jail and hence, he is directed to be released forthwith, unless he is required in connection with any other case.
