{"id":53051,"date":"1995-03-10T00:00:00","date_gmt":"1995-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheikh-ishaque-and-ors-vs-state-of-bihar-on-10-march-1995"},"modified":"2015-06-15T01:36:21","modified_gmt":"2015-06-14T20:06:21","slug":"sheikh-ishaque-and-ors-vs-state-of-bihar-on-10-march-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheikh-ishaque-and-ors-vs-state-of-bihar-on-10-march-1995","title":{"rendered":"Sheikh Ishaque And Ors vs State Of Bihar on 10 March, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sheikh Ishaque And Ors vs State Of Bihar on 10 March, 1995<\/div>\n
Bench: Dr. A.S. Paripoornan<\/div>\n
           CASE NO.:\nAppeal (crl.)  600-601 of 1994\n\nPETITIONER:\nSHEIKH ISHAQUE AND ORS.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT: 10\/03\/1995\n\nBENCH:\nDR. A.S. ANAND AND K.S. PARIPOORNAN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1995 (2) SCR 692<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
DR. ANAND, J. On the night intervening 14th and 15th of July 1990, the
\ncomplainant was sleeping on the roof of his house and his two sons Ram
\nSunder Bhagat and Pankaj @ Kapil Dev Bhagat were sleeping in the shop-house
\nalongwith Durga Bhagat, the elder brother of the complainant. On hearing
\nthe noise of a bomb explosion, the complainant woke up and went towards his
\nshop- house. Chowkidar Gulabi Paswan who was present there was raising
\nalarm. Some members of the complainant’s family also came out and rushed
\ntowards the scene of occurrence and when they reached near the house of
\nBanarsi Shah, they heard the exhortation of the accused party that the
\nfamily members of Ram Sunder Bhagat would be finished on that day. The
\ncomplainant could identify Sheikh Ilyas Ansari and Sheikh Ishaque Ansari by
\ntheir voice. On reaching near the shop, the complainant saw four-five
\npersons standing in the lane and shouting that nobody should be left alive
\nand that all of them should be burnt to death. In the meanwhile, the
\ncomplainant saw smoke coming out of the shop-house. Instantly, two bombs
\nwere exploded and some gun shots were also fired. The villagers rushed to
\nthe place of occurrence and indulged in brick batting to scare away the
\nassailants, who then fled away. The assailants, included the four
\nappellants herein. After the assailants ran away, the complainant entered
\nhis house which had by then got engulfed in smoke. His son Jitender Kumar
\nBhagat PW3 after breaking a window, entered the shop-house and found Durga
\nBhagat, Ram Sunder Bhagat and Pankaj Bhagat having been burned to death.
\nGulabi Paswan was sent to inform the police at the police station. On
\nlearning about the occurrence, the police arrived at the scene of
\noccurrence. On the statement of the complainant Baldev Bhagat PW10, Ex,2
\nFirst Information Report was recorded and further investigation was taken
\nin hand.\n<\/p>\n
Eleven accused were sent to face their trial for various offences including
\nthe offence of murders of Durga Bhagat, Ram Sunder Bhagat and Pankaj
\nBhagat.\n<\/p>\n
The motive for the commission of the crime according to the prosecution is
\nthat the appellants had earlier committed dacoity and the son of the
\ncomplainant had identified them at the trial in that case and on that
\naccount they bore a grudge against the complainant party. After being
\nreleased form jail they (appellant herein) had threatened that the entire
\nfamily of the complainant would be done to death for implicating them in
\nthe earlier dacoity case.\n<\/p>\n
The prosecution examined 13 witnesses in support of its case to connect the
\nappellants and seven others with the crime. The trial court alter analysing
\nthe evidence came to the conclusion that the case against the appellants
\nand seven others stood proved beyond a reasonable doubt and convicted at
\nthe eleven of them for offences under Section 302\/34 IPC and Section 436\/34
\nIPC. While the four appellants, namely, Sheikh Ishaque, Sheikh Ilyas,
\nSheikh Shamim and Sheikh Rustam were sentenced to death, the remaining
\nseven accused were sentenced to undergo imprisonment for life. No separate
\nsentence was passed against either of the accused for the offence under
\nSection 436\/34 IPC. The convicts filed two appeals in the High Court. The
\nlearned trial court also made a reference to the High Court for
\nconfirmation of the sentence of death imposed upon the four appellants.
\nVide its judgment, dated 18.8.84, the High Court acquitted the seven co-
\naccused of the appellants by giving them the benefit of doubt but the
\nappeal filed by the appellants was dismissed and their conviction under
\nSection 302\/34 IPC and the sentence of death imposed upon each of them was
\nmaintained. The reference made by the trial court was accepted. Through
\nthis appeal by special leave, the appellants have challenged their
\nconviction and sentence.\n<\/p>\n
With the assistance of learned counsel for the parties, we have gone
\nthrough the relevant evidence and the judgments of the courts below.\n<\/p>\n
Baldev Bhagat PW10, the first informant, on whose statement the formal FIR
\nwas registered has given a cogent and consistent version of the occurrence,
\nas has been noticed in the earlier part of this judgment. Though he was
\nsubjected to lengthy cross-examination but nothing has been elicited from
\nhis testimony which may in any way affect his credibility. Both the trial
\ncourt and the High Court carefully appreciated his evidence and came to the
\nconclusion that his testimony inspired confidence and had received
\ncorroboration in all material and broader or aspects from his fard bayan,
\nEx.2 and other materials on the record. We agree with the trial court and
\nthe High Court that though PW10 is related to the three deceased persons
\nrather closely and therefore can be said to have an interest in the
\nprosecution but his evidence has stood close judicial scrutiny and his
\ntestimony inspires confidence. Of course, at the trial he had also named
\nsome of the acquitted co-accused as being present at the time of occurrence
\nbut since benefit of the doubt has been given to them by the High Court and
\nthe Stale has not filed any appeal against their acquittal, we are of the
\nopinion that on account of mere acquittal of some of the accused nominated
\nby him as being present alongwith the appellants at the time of occurrence
\nis not enough to discredit his evidence. That apart, the evidence of PW10
\nhas received ample corroboration from the evidence of PW3 Jitender Bhagat,
\nson of the first informant and his other co- villagers, PW1, PW2, PW11 AND
\nPW12. All these four co-villagers are not related in any to PW10 or the
\ndeceased and a critical analysis of their evidence shows that their
\nevidence does not suffer from any taint. Even though, PW1 did not claim to
\nhave identified any of the assailants but his evidence goes to show that
\nthere was an occurrence on the night intervening 14th and 15th July 1990
\nand that some of the assailants had entered into the shop-house and had
\nstayed there for some time before coming out and that the said shop-house
\nhad been set on fire. He also deposed that on bricks being thrown by the
\nvillagers, the assailants had taken to their heels. He also testified about
\nthe raising of an alarm by the chowkidar and the explosion of the bombs and
\nabout the firing from the side of the accused party. Likewise, PW2
\ntestified that there was an occurrence in which bombs and crackers were
\nexploded by the assailants and three persons had been burnt to death in the
\nshop which had been sot on fire. PW11 and PW12 have generally supported the
\nprosecution version. PWs 4 and 5 are the sons of Durga Bhagat deceased and
\ntheir version of the occurrence is similar to the one given by first
\ninformant PW10 Baldev Bhagat and PWS Jatinder Bhagat. Though, in an appeal
\nby special leave under Article 136 of the Constitution, this Court does not
\nnormally reappraise the evidence, which has been appreciated by two courts
\nbelow, but looking to the gravity of the offence we have made an
\nindependent appraisal of the evidence on the record in the light of the
\nsubmissions made at the bar. We find that the appreciation of evidence by
\nthe trial court and High Court is sound and proper. The evidence of PW3
\nJitender Bhagat which has fully corroborated the evidence of PW10 was
\nrightly relied upon by both the courts below and nothing has been pointed
\nout before us from which any doubt may be cast on the reliability of the
\ntestimony of either of these two witnesses. From a close scrutiny of the
\nevidence we find that whereas the identity and complicity of the appellants
\nin the crime stands fully established by the prosecution witnesses, the
\nsame cannot be said with certainty about the acquitted co-accused. Besides,
\nall the four appellants were named in the FIR. The prosecution witnesses
\nhave testified to the identification of Sheikh Ilyas and Sheikh Shamim by
\nvoice also. The High Court, therefore, rightly erred on safer side to
\nacquit the seven co-accused of the appellants while upholding the
\nconviction of the appellants for committing three murders on the fateful
\nnight of 14\/15 July 1990, We are also not impressed by the argument of the
\nlearned counsel that on account of the acquittal of seven co-accused by the
\nHigh Court, the case against the four appellants has also been rendered
\ndoubtful. There is no basis for such an argument. In recording the order of
\nacquittal of the co-accused, it appear that the High Court was mainly
\ninfluenced by the fact that in the earliest statement of the first
\ninformant, Ex,2, the names of the seven co-accused had not been mentioned.
\nNo role had been ascribed to any one of them while the appellants had been
\nnamed and specific roles assigned to them. The High Court, therefore, as a
\nmatter of abundant caution gave the benefit of the doubt to the seven co-
\naccused. Their acquittal does not in any way militate against the
\nconviction of the four appellants whose complicity in the crime has been
\namply established by the prosecution evidence.\n<\/p>\n
Learned counsel for the appellants then urged that the omission of the
\nprosecution to examine Chowkidar Gulabi Paswan, who had been sent to the
\npolice station at the request of the first Informant, first in point of
\ntime discredits the prosecution case. It is submitted that the statement
\ngiven by Gulabi Paswan at the police station would be the FIR and the fard
\nbayan of PW10, Ex.2, on which reliance has been placed would be
\ninadmissible in evidence, being a statement recorded during the course of
\ninvestigation. Learned counsel argued that since the prosecution had with-
\nhold the statement of the chowkidar, the prosecution case was materially
\ndetracted. We cannot agree. A similar argument was raised before the High
\nCourt and it was rightly found that the non-examination of Gulabi Paswan
\nwas of no consequence. According to the statement of the Investigating
\nOfficer, Gulabi Paswan had given some cryptic information at the police
\nstation to the effect that there was commotion in the village as firing and
\nbrick batting was going on. This information was recorded in the police
\ndiary. It did not strictly speaking even disclose the commission of a
\ncognizable offence, let alone disclosing as to who were the assailants or
\nthe victims. The cryptic statement of Gulabi Paswan therefore cannot be
\ntreated to be a FIR within the meaning of Section 154 Cr.P.C. Under these
\ncircumstances, the Fard Bayan of PW10,Ex.2 which forms the basis of the
\nformal FIR cannot be said to be a statement recorded during the
\ninvestigation. It is not hit by Section 162 Cr. P,C. Both the courts below
\nhave rightly relied upon the said Fard Bayan as FIR and a piece of
\ncorroborative evidence.\n<\/p>\n
Faced with this over-whelming and unimpeachable prosecution evidence
\nconnecting all the four appellant with the crime, learned counsel for the
\nappellant submitted that the courts below had erred in awarding the
\nsentence of death to them ignoring the cautions administered by this Court
\nrepeatedly regarding the imposition of the sentence of death only in the
\n“rarest of the rare cases,” We find force in this submission.\n<\/p>\n
The High Court in para 40 of the judgment observed:\n<\/p>\n
“Applying the principle laid down therein, I am of the definite opinion
\nthat this case in the facts and circumstances which have been established
\nby the evidence lead to only one conclusion that the four appellants,
\nnamely, Sheikh Ishaque, Sheikh Ilyas, Sheikh Shamim and Sheikh Rustom of
\nCriminal Appeal No. 215 of 1992 along with some other had caused the death
\nof the three victims by burning them with the help of kerosene oil and
\nsetting fire inside the room through its southern window.”\n<\/p>\n
After recording the above finding, the High Court addressed itself to the
\nquestion of sentence and opined:\n<\/p>\n
“Learned Addl. P.P. has contended that the facts and circumstances
\ndefinitely and clearly show that the three persons had been killed by
\nburning in a very cold blooded manner and the three members of a family
\nwere killed only because they had instituted a case of dacoity against the
\nappellants in the preceding year. According to him, the sentence of death
\nawarded by the trial court in the facts and circumstances of the case is
\nproper and justified. He has cited two decisions of the Supreme Curt
\nreported in AIR (1983) SC 1368; Kailash Kumar v. State of Punjab and has
\nurged that even the Supreme Court has felt that in case of cruel method of
\nkilling by burning with the help of kerosene oil or when several persons
\nwere killed in pre-planned manner, death sentence should be awarded. No
\nargument was made by the learned counsel for the appellants with regard to
\nthe sentence. I am inclined to agree with the contention of the learned
\nAddl, P.P. that only death sentence can meet the ends of justice in the
\nfacts and circumstances of the case which discloses diabolical manner in
\nwhich the death had been caused to three persons in cold blood and the
\nmotive behind killing being institution of case of decoity. It appears to
\nbe a case of such extreme culpability and cruelty as only death sentence
\ncan meet the ends of justice. I, accordingly, confirm the death sentence
\npassed against the four appellants, namely, Sheikh Ishaque, Sheikh Ilyas,
\nSheikh Rustam and Sheikh Shamim (of Criminal Appeal No. 215 of 1992).”\n<\/p>\n
While dealing with the question of sentence, the trial court has observed:\n<\/p>\n
“In this way, it is clear that accused persons Sheikh Ishaque, Sheikh
\nShamim and Sheikh Rustam have not only ruthlessly committed brutal murder
\nof the three deceased persons Ram Sunder Bhagat, Pankaj Bhagat and Durga
\nBhagat but also injured the existence and propriety of the whole law and
\norder, in which every person has got right to get the persons committing
\noffence with his\/her body and property punished and to give evidence
\nagainst them, therefore, in my opinion, the reasons, and rite manner in
\nwhich these four accused persons have committed murder of three per-sons
\npossessing right for taking help and protection of the law and order of the
\ncountry. Comes in the grade of exceptional case, and these four accused
\npersons are liable to get maximum punishment prescribed for committing the
\noffence of murder. Death sentence.”\n<\/p>\n
After giving our thoughtful consideration to the reasons given by both the
\ntrial court and the High Court, we find that both the courts below have
\nfailed to assign proper reasons which may bear judicial scrutiny in support
\nof the sentence of death awarded to the appellants. Both the courts below
\nappear to have overlooked the provisions of Section 354(3) of Cr.P.C. 1973,
\nas amended, which makes it obligatory in cases of conviction for offences
\npunishable with death or with imprisonment for life to assign reasons in
\nsupport of the sentence awarded to the convict and further ordains that in
\ncase the Judge awards the death penalty ‘special reasons’ for such sentence
\nShall be stated in the judgment. In Jashubha Bkaratssinh Cohil v. State of
\nGujarat, [1994] 4 SCC 353, this Court after taking note of the law laid
\ndown in Buchan Singh v. State of Punjab, [1980] 2 SCC 684, and noticing the
\nchange of the legislative intent observed:\n<\/p>\n
“Section 354(3) of the Code of Criminal Procedure, 1973, as amended, makes
\nit obligatory in cases of conviction for offences punishable with death or
\nwith imprisonment for life to assign reasons in support of the sentence
\nawarded to the convict and further ordains that in case the Judge awards
\ndeath penalty, ‘special reasons’ for such sentence shall be stated in the
\njudgment. Thus, the Judge is under a legal obligation to explain his choice
\nof the sentence. The legislature in its supreme wisdom thought that in some
\n‘rare cases’ for ‘special reasons’ to be recorded it will be necessary to
\nimpose the extreme penalty of death to deter others and to protect the
\nsociety and in a given case even the sovereignty and security of the State
\nor country. It, however, left the choice of sentence to the judiciary with
\nthe rider that the court may impose the extreme punishment of death for
\n‘special reasons’. The sentencing court has, therefore, to approach the
\nquestion seriously and make an endeavour to see that all the relevant facts
\nand circumstances bearing on the question of sentence are brought on
\nrecord. It is only after giving due weight to the mitigating as well as the
\naggravating circumstances, that it must proceed to impose the appropriate
\nsentence.” (Emphasis ours)<\/p>\n
Again, in Anshad v. State of Karnataka,<\/a> [1994] 4 SCC 381, it was observed :\n<\/p>\n
“Courts are expected to exhibit sensitivenes in the matter of award of
\nsentence particularly, the sentence of death because life once lost cannot
\nbe brought back. This Court has in cases more than one emphasised that for
\ndetermining the proper sentence in a case like this while the court should
\ntake into account the aggravating circumstances it should not overlook or
\nignore the mitigating circumstances. The manner in which the crime was
\ncommitted, the weapons used and the brutality or the lack of it are some of
\nthe considerations which must be present to the mind of the court<\/p>\n
………The courts must be alive to the legislative changes introduced in
\n1973 through Section 354(3) Cr.P.C. Death sentence, being an exception to
\nthe general rule, should he awarded in the ‘rarest of the rare cases’ for
\n‘special reasons’ to he recorded after balancing the aggravating and the
\nmitigating circumstances, in the facts and circumstances of a given case.
\nthe number of persons murdered is a consideration but that is not the only
\nconsideration for imposing death penalty unless the case falls in the
\ncategory of ‘rarest of the rare cases’. The courts must keep in view the
\nnature of the crime, the brutality with which it was executed, the
\nantecedents of the criminal, the weapons used etc. It is neither possible
\nnor desirable to catalogue all such factors and they depend upon case to
\ncase.” (Emphasis supplied).\n<\/p>\n
Both the trial court and the High Court have not bestowed proper
\nconsideration, as was expected of them, while awarding and confirming the
\ndeath sentence in so far as the appellants are concerned. It appear to us
\nfrom the observations of the two courts below, that both the courts were
\ninfluenced only by the number of persons who had lost their lives at the
\nhand of the assailants by burning and the motive for the commission of
\ncrime but then these are not the only considerations which have to be kept
\nin view for imposing death penalty. On the prosecution’s own showing it is
\nnot known as to which of the appellant had actually sprinkled the kerosene
\noil inside the shop. There is also no material on the record to show as to
\nwhich of the appellant, along with “some others” actually set the shop on
\nfire. After the High Court arrived at the conclusion that the appellants
\nalong with “some others” had set the shot on fire, it was not proper for it
\nto have ignored that factor, which is a mitigating circumstance, while
\nconsidering the question of sentence. Though the appellants, or at least
\nsome of them, were alleged to be armed with bombs and fire-arms, they had
\nnot used those weapons against their victims. This factor also deserved
\nnotice while considering whether the extreme penalty of death was called
\nfor in the case or not. That the appellants intended that the person inside
\nthe shop should be burnt alive is established beyond doubt but there is no
\nmaterial to show that the appellants know or had reason to believe that
\nthere were three persons inside the shop at the relevant time. There fore,
\nthe number of victims alone would not make the case, “rarest of the rare”,
\nWe notice with regret that the High Court below did not take into account
\nany of the mitigating circumstances, may be because, as observed by the
\nHigh Court “no argument was made by the learned counsel for the appellants
\nwith regard to the sentence”, but then the High Court over-looked that the
\nimposition of proper sentence is an obligation on the court and even if no
\nargument had been addressed OH behalf of the appellants, the court was
\nexpected to take note of the legislative intendment relating to the award
\nof capital punishment as manifest from the provisions of Section 354(3)
\nCr.P.C. and award an appropriate sentence, after taking into ac-count the
\naggravating as well as the mitigating circumstances. The sentencing court
\nhas to make an endeavour to see that all relevant factors and circumstances
\nbearing on the question of sentence, are taken note of and only after
\ngiving due weight to the same, it should proceed to impose the capital
\nsentence. That apparently has not been done in the instant case.\n<\/p>\n
In our opinion, some of the mitigating circumstances which we have noticed
\nabove make it imperative to say that the present case inspite of the fact
\nthat three persons lost their lives, is not one of the ‘rarest of the rare
\ncases’ in which four appellants deserved to be sentenced to death. An eye
\nfor eye approach is neither proper nor desirable. The mandate of Section
\n354(3) Cr.P.C. does not approve of it. The Courts must be conscious of the
\nchange brought about in the matter of award of capital punishment by the
\nlegislature by enacting Section 354(3) Cr.P.C, award the sentence of death
\nonly in the “rarest of the rare cases” and that too after recording
\n“special reasons” for awarding the same, keeping in views the guidelines
\ngiven by this Court in various judgments. Neither of the two courts below
\nhave given any special reasons forwarding the sentence of death. While, the
\nprosecution has established the case against the appellants beyond a
\nreasonable doubt and agreeing with the trial court and the High Court, we
\nuphold their conviction for the offence under Section 302\/34 IPC and 436\/34
\nIPC but we are of the opinion that the sentence of death imposed upon the
\nfour appellants is not warranted. The appropriate sentence, in the facts
\nand circumstances of the case would be imprisonment for life. We
\naccordingly, set aside the sentence of death imposed upon the appellants
\nand instead sentence each one of them to suffer life imprisonment for the
\noffence under Section 302\/34 IPC, No separate sentence was passed by High
\nCourt for the offence under Section 436\/34 IPC and we also do not propose
\nto pass any separate sentence for the said offence.\n<\/p>\n
As a result, except for the commutation of the sentence, the appeal fails
\nand is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sheikh Ishaque And Ors vs State Of Bihar on 10 March, 1995 Bench: Dr. A.S. Paripoornan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-53051","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSheikh Ishaque And Ors vs State Of Bihar on 10 March, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sheikh-ishaque-and-ors-vs-state-of-bihar-on-10-march-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheikh Ishaque And Ors vs State Of Bihar on 10 March, 1995 - 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