CASE NO.: Appeal (crl.) 600-601 of 1994 PETITIONER: SHEIKH ISHAQUE AND ORS. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 10/03/1995 BENCH: DR. A.S. ANAND AND K.S. PARIPOORNAN JUDGMENT:
JUDGMENT
1995 (2) SCR 692
The Judgment of the Court was delivered by
DR. ANAND, J. On the night intervening 14th and 15th of July 1990, the
complainant was sleeping on the roof of his house and his two sons Ram
Sunder Bhagat and Pankaj @ Kapil Dev Bhagat were sleeping in the shop-house
alongwith Durga Bhagat, the elder brother of the complainant. On hearing
the noise of a bomb explosion, the complainant woke up and went towards his
shop- house. Chowkidar Gulabi Paswan who was present there was raising
alarm. Some members of the complainant’s family also came out and rushed
towards the scene of occurrence and when they reached near the house of
Banarsi Shah, they heard the exhortation of the accused party that the
family members of Ram Sunder Bhagat would be finished on that day. The
complainant could identify Sheikh Ilyas Ansari and Sheikh Ishaque Ansari by
their voice. On reaching near the shop, the complainant saw four-five
persons standing in the lane and shouting that nobody should be left alive
and that all of them should be burnt to death. In the meanwhile, the
complainant saw smoke coming out of the shop-house. Instantly, two bombs
were exploded and some gun shots were also fired. The villagers rushed to
the place of occurrence and indulged in brick batting to scare away the
assailants, who then fled away. The assailants, included the four
appellants herein. After the assailants ran away, the complainant entered
his house which had by then got engulfed in smoke. His son Jitender Kumar
Bhagat PW3 after breaking a window, entered the shop-house and found Durga
Bhagat, Ram Sunder Bhagat and Pankaj Bhagat having been burned to death.
Gulabi Paswan was sent to inform the police at the police station. On
learning about the occurrence, the police arrived at the scene of
occurrence. On the statement of the complainant Baldev Bhagat PW10, Ex,2
First Information Report was recorded and further investigation was taken
in hand.
Eleven accused were sent to face their trial for various offences including
the offence of murders of Durga Bhagat, Ram Sunder Bhagat and Pankaj
Bhagat.
The motive for the commission of the crime according to the prosecution is
that the appellants had earlier committed dacoity and the son of the
complainant had identified them at the trial in that case and on that
account they bore a grudge against the complainant party. After being
released form jail they (appellant herein) had threatened that the entire
family of the complainant would be done to death for implicating them in
the earlier dacoity case.
The prosecution examined 13 witnesses in support of its case to connect the
appellants and seven others with the crime. The trial court alter analysing
the evidence came to the conclusion that the case against the appellants
and seven others stood proved beyond a reasonable doubt and convicted at
the eleven of them for offences under Section 302/34 IPC and Section 436/34
IPC. While the four appellants, namely, Sheikh Ishaque, Sheikh Ilyas,
Sheikh Shamim and Sheikh Rustam were sentenced to death, the remaining
seven accused were sentenced to undergo imprisonment for life. No separate
sentence was passed against either of the accused for the offence under
Section 436/34 IPC. The convicts filed two appeals in the High Court. The
learned trial court also made a reference to the High Court for
confirmation of the sentence of death imposed upon the four appellants.
Vide its judgment, dated 18.8.84, the High Court acquitted the seven co-
accused of the appellants by giving them the benefit of doubt but the
appeal filed by the appellants was dismissed and their conviction under
Section 302/34 IPC and the sentence of death imposed upon each of them was
maintained. The reference made by the trial court was accepted. Through
this appeal by special leave, the appellants have challenged their
conviction and sentence.
With the assistance of learned counsel for the parties, we have gone
through the relevant evidence and the judgments of the courts below.
Baldev Bhagat PW10, the first informant, on whose statement the formal FIR
was registered has given a cogent and consistent version of the occurrence,
as has been noticed in the earlier part of this judgment. Though he was
subjected to lengthy cross-examination but nothing has been elicited from
his testimony which may in any way affect his credibility. Both the trial
court and the High Court carefully appreciated his evidence and came to the
conclusion that his testimony inspired confidence and had received
corroboration in all material and broader or aspects from his fard bayan,
Ex.2 and other materials on the record. We agree with the trial court and
the High Court that though PW10 is related to the three deceased persons
rather closely and therefore can be said to have an interest in the
prosecution but his evidence has stood close judicial scrutiny and his
testimony inspires confidence. Of course, at the trial he had also named
some of the acquitted co-accused as being present at the time of occurrence
but since benefit of the doubt has been given to them by the High Court and
the Stale has not filed any appeal against their acquittal, we are of the
opinion that on account of mere acquittal of some of the accused nominated
by him as being present alongwith the appellants at the time of occurrence
is not enough to discredit his evidence. That apart, the evidence of PW10
has received ample corroboration from the evidence of PW3 Jitender Bhagat,
son of the first informant and his other co- villagers, PW1, PW2, PW11 AND
PW12. All these four co-villagers are not related in any to PW10 or the
deceased and a critical analysis of their evidence shows that their
evidence does not suffer from any taint. Even though, PW1 did not claim to
have identified any of the assailants but his evidence goes to show that
there was an occurrence on the night intervening 14th and 15th July 1990
and that some of the assailants had entered into the shop-house and had
stayed there for some time before coming out and that the said shop-house
had been set on fire. He also deposed that on bricks being thrown by the
villagers, the assailants had taken to their heels. He also testified about
the raising of an alarm by the chowkidar and the explosion of the bombs and
about the firing from the side of the accused party. Likewise, PW2
testified that there was an occurrence in which bombs and crackers were
exploded by the assailants and three persons had been burnt to death in the
shop which had been sot on fire. PW11 and PW12 have generally supported the
prosecution version. PWs 4 and 5 are the sons of Durga Bhagat deceased and
their version of the occurrence is similar to the one given by first
informant PW10 Baldev Bhagat and PWS Jatinder Bhagat. Though, in an appeal
by special leave under Article 136 of the Constitution, this Court does not
normally reappraise the evidence, which has been appreciated by two courts
below, but looking to the gravity of the offence we have made an
independent appraisal of the evidence on the record in the light of the
submissions made at the bar. We find that the appreciation of evidence by
the trial court and High Court is sound and proper. The evidence of PW3
Jitender Bhagat which has fully corroborated the evidence of PW10 was
rightly relied upon by both the courts below and nothing has been pointed
out before us from which any doubt may be cast on the reliability of the
testimony of either of these two witnesses. From a close scrutiny of the
evidence we find that whereas the identity and complicity of the appellants
in the crime stands fully established by the prosecution witnesses, the
same cannot be said with certainty about the acquitted co-accused. Besides,
all the four appellants were named in the FIR. The prosecution witnesses
have testified to the identification of Sheikh Ilyas and Sheikh Shamim by
voice also. The High Court, therefore, rightly erred on safer side to
acquit the seven co-accused of the appellants while upholding the
conviction of the appellants for committing three murders on the fateful
night of 14/15 July 1990, We are also not impressed by the argument of the
learned counsel that on account of the acquittal of seven co-accused by the
High Court, the case against the four appellants has also been rendered
doubtful. There is no basis for such an argument. In recording the order of
acquittal of the co-accused, it appear that the High Court was mainly
influenced by the fact that in the earliest statement of the first
informant, Ex,2, the names of the seven co-accused had not been mentioned.
No role had been ascribed to any one of them while the appellants had been
named and specific roles assigned to them. The High Court, therefore, as a
matter of abundant caution gave the benefit of the doubt to the seven co-
accused. Their acquittal does not in any way militate against the
conviction of the four appellants whose complicity in the crime has been
amply established by the prosecution evidence.
Learned counsel for the appellants then urged that the omission of the
prosecution to examine Chowkidar Gulabi Paswan, who had been sent to the
police station at the request of the first Informant, first in point of
time discredits the prosecution case. It is submitted that the statement
given by Gulabi Paswan at the police station would be the FIR and the fard
bayan of PW10, Ex.2, on which reliance has been placed would be
inadmissible in evidence, being a statement recorded during the course of
investigation. Learned counsel argued that since the prosecution had with-
hold the statement of the chowkidar, the prosecution case was materially
detracted. We cannot agree. A similar argument was raised before the High
Court and it was rightly found that the non-examination of Gulabi Paswan
was of no consequence. According to the statement of the Investigating
Officer, Gulabi Paswan had given some cryptic information at the police
station to the effect that there was commotion in the village as firing and
brick batting was going on. This information was recorded in the police
diary. It did not strictly speaking even disclose the commission of a
cognizable offence, let alone disclosing as to who were the assailants or
the victims. The cryptic statement of Gulabi Paswan therefore cannot be
treated to be a FIR within the meaning of Section 154 Cr.P.C. Under these
circumstances, the Fard Bayan of PW10,Ex.2 which forms the basis of the
formal FIR cannot be said to be a statement recorded during the
investigation. It is not hit by Section 162 Cr. P,C. Both the courts below
have rightly relied upon the said Fard Bayan as FIR and a piece of
corroborative evidence.
Faced with this over-whelming and unimpeachable prosecution evidence
connecting all the four appellant with the crime, learned counsel for the
appellant submitted that the courts below had erred in awarding the
sentence of death to them ignoring the cautions administered by this Court
repeatedly regarding the imposition of the sentence of death only in the
“rarest of the rare cases,” We find force in this submission.
The High Court in para 40 of the judgment observed:
“Applying the principle laid down therein, I am of the definite opinion
that this case in the facts and circumstances which have been established
by the evidence lead to only one conclusion that the four appellants,
namely, Sheikh Ishaque, Sheikh Ilyas, Sheikh Shamim and Sheikh Rustom of
Criminal Appeal No. 215 of 1992 along with some other had caused the death
of the three victims by burning them with the help of kerosene oil and
setting fire inside the room through its southern window.”
After recording the above finding, the High Court addressed itself to the
question of sentence and opined:
“Learned Addl. P.P. has contended that the facts and circumstances
definitely and clearly show that the three persons had been killed by
burning in a very cold blooded manner and the three members of a family
were killed only because they had instituted a case of dacoity against the
appellants in the preceding year. According to him, the sentence of death
awarded by the trial court in the facts and circumstances of the case is
proper and justified. He has cited two decisions of the Supreme Curt
reported in AIR (1983) SC 1368; Kailash Kumar v. State of Punjab and has
urged that even the Supreme Court has felt that in case of cruel method of
killing by burning with the help of kerosene oil or when several persons
were killed in pre-planned manner, death sentence should be awarded. No
argument was made by the learned counsel for the appellants with regard to
the sentence. I am inclined to agree with the contention of the learned
Addl, P.P. that only death sentence can meet the ends of justice in the
facts and circumstances of the case which discloses diabolical manner in
which the death had been caused to three persons in cold blood and the
motive behind killing being institution of case of decoity. It appears to
be a case of such extreme culpability and cruelty as only death sentence
can meet the ends of justice. I, accordingly, confirm the death sentence
passed against the four appellants, namely, Sheikh Ishaque, Sheikh Ilyas,
Sheikh Rustam and Sheikh Shamim (of Criminal Appeal No. 215 of 1992).”
While dealing with the question of sentence, the trial court has observed:
“In this way, it is clear that accused persons Sheikh Ishaque, Sheikh
Shamim and Sheikh Rustam have not only ruthlessly committed brutal murder
of the three deceased persons Ram Sunder Bhagat, Pankaj Bhagat and Durga
Bhagat but also injured the existence and propriety of the whole law and
order, in which every person has got right to get the persons committing
offence with his/her body and property punished and to give evidence
against them, therefore, in my opinion, the reasons, and rite manner in
which these four accused persons have committed murder of three per-sons
possessing right for taking help and protection of the law and order of the
country. Comes in the grade of exceptional case, and these four accused
persons are liable to get maximum punishment prescribed for committing the
offence of murder. Death sentence.”
After giving our thoughtful consideration to the reasons given by both the
trial court and the High Court, we find that both the courts below have
failed to assign proper reasons which may bear judicial scrutiny in support
of the sentence of death awarded to the appellants. Both the courts below
appear to have overlooked the provisions of Section 354(3) of Cr.P.C. 1973,
as amended, which makes it obligatory in cases of conviction for offences
punishable with death or with imprisonment for life to assign reasons in
support of the sentence awarded to the convict and further ordains that in
case the Judge awards the death penalty ‘special reasons’ for such sentence
Shall be stated in the judgment. In Jashubha Bkaratssinh Cohil v. State of
Gujarat, [1994] 4 SCC 353, this Court after taking note of the law laid
down in Buchan Singh v. State of Punjab, [1980] 2 SCC 684, and noticing the
change of the legislative intent observed:
“Section 354(3) of the Code of Criminal Procedure, 1973, as amended, makes
it obligatory in cases of conviction for offences punishable with death or
with imprisonment for life to assign reasons in support of the sentence
awarded to the convict and further ordains that in case the Judge awards
death penalty, ‘special reasons’ for such sentence shall be stated in the
judgment. Thus, the Judge is under a legal obligation to explain his choice
of the sentence. The legislature in its supreme wisdom thought that in some
‘rare cases’ for ‘special reasons’ to be recorded it will be necessary to
impose the extreme penalty of death to deter others and to protect the
society and in a given case even the sovereignty and security of the State
or country. It, however, left the choice of sentence to the judiciary with
the rider that the court may impose the extreme punishment of death for
‘special reasons’. The sentencing court has, therefore, to approach the
question seriously and make an endeavour to see that all the relevant facts
and circumstances bearing on the question of sentence are brought on
record. It is only after giving due weight to the mitigating as well as the
aggravating circumstances, that it must proceed to impose the appropriate
sentence.” (Emphasis ours)
Again, in Anshad v. State of Karnataka, [1994] 4 SCC 381, it was observed :
“Courts are expected to exhibit sensitivenes in the matter of award of
sentence particularly, the sentence of death because life once lost cannot
be brought back. This Court has in cases more than one emphasised that for
determining the proper sentence in a case like this while the court should
take into account the aggravating circumstances it should not overlook or
ignore the mitigating circumstances. The manner in which the crime was
committed, the weapons used and the brutality or the lack of it are some of
the considerations which must be present to the mind of the court
………The courts must be alive to the legislative changes introduced in
1973 through Section 354(3) Cr.P.C. Death sentence, being an exception to
the general rule, should he awarded in the ‘rarest of the rare cases’ for
‘special reasons’ to he recorded after balancing the aggravating and the
mitigating circumstances, in the facts and circumstances of a given case.
the number of persons murdered is a consideration but that is not the only
consideration for imposing death penalty unless the case falls in the
category of ‘rarest of the rare cases’. The courts must keep in view the
nature of the crime, the brutality with which it was executed, the
antecedents of the criminal, the weapons used etc. It is neither possible
nor desirable to catalogue all such factors and they depend upon case to
case.” (Emphasis supplied).
Both the trial court and the High Court have not bestowed proper
consideration, as was expected of them, while awarding and confirming the
death sentence in so far as the appellants are concerned. It appear to us
from the observations of the two courts below, that both the courts were
influenced only by the number of persons who had lost their lives at the
hand of the assailants by burning and the motive for the commission of
crime but then these are not the only considerations which have to be kept
in view for imposing death penalty. On the prosecution’s own showing it is
not known as to which of the appellant had actually sprinkled the kerosene
oil inside the shop. There is also no material on the record to show as to
which of the appellant, along with “some others” actually set the shop on
fire. After the High Court arrived at the conclusion that the appellants
along with “some others” had set the shot on fire, it was not proper for it
to have ignored that factor, which is a mitigating circumstance, while
considering the question of sentence. Though the appellants, or at least
some of them, were alleged to be armed with bombs and fire-arms, they had
not used those weapons against their victims. This factor also deserved
notice while considering whether the extreme penalty of death was called
for in the case or not. That the appellants intended that the person inside
the shop should be burnt alive is established beyond doubt but there is no
material to show that the appellants know or had reason to believe that
there were three persons inside the shop at the relevant time. There fore,
the number of victims alone would not make the case, “rarest of the rare”,
We notice with regret that the High Court below did not take into account
any of the mitigating circumstances, may be because, as observed by the
High Court “no argument was made by the learned counsel for the appellants
with regard to the sentence”, but then the High Court over-looked that the
imposition of proper sentence is an obligation on the court and even if no
argument had been addressed OH behalf of the appellants, the court was
expected to take note of the legislative intendment relating to the award
of capital punishment as manifest from the provisions of Section 354(3)
Cr.P.C. and award an appropriate sentence, after taking into ac-count the
aggravating as well as the mitigating circumstances. The sentencing court
has to make an endeavour to see that all relevant factors and circumstances
bearing on the question of sentence, are taken note of and only after
giving due weight to the same, it should proceed to impose the capital
sentence. That apparently has not been done in the instant case.
In our opinion, some of the mitigating circumstances which we have noticed
above make it imperative to say that the present case inspite of the fact
that three persons lost their lives, is not one of the ‘rarest of the rare
cases’ in which four appellants deserved to be sentenced to death. An eye
for eye approach is neither proper nor desirable. The mandate of Section
354(3) Cr.P.C. does not approve of it. The Courts must be conscious of the
change brought about in the matter of award of capital punishment by the
legislature by enacting Section 354(3) Cr.P.C, award the sentence of death
only in the “rarest of the rare cases” and that too after recording
“special reasons” for awarding the same, keeping in views the guidelines
given by this Court in various judgments. Neither of the two courts below
have given any special reasons forwarding the sentence of death. While, the
prosecution has established the case against the appellants beyond a
reasonable doubt and agreeing with the trial court and the High Court, we
uphold their conviction for the offence under Section 302/34 IPC and 436/34
IPC but we are of the opinion that the sentence of death imposed upon the
four appellants is not warranted. The appropriate sentence, in the facts
and circumstances of the case would be imprisonment for life. We
accordingly, set aside the sentence of death imposed upon the appellants
and instead sentence each one of them to suffer life imprisonment for the
offence under Section 302/34 IPC, No separate sentence was passed by High
Court for the offence under Section 436/34 IPC and we also do not propose
to pass any separate sentence for the said offence.
As a result, except for the commutation of the sentence, the appeal fails
and is dismissed.