1998 Supreme(SC) 313

1998(3) Supreme 112
Supreme Court of India
(From Patna High Court)
G.T. Nanavati and S.P. Kurdukar, JJ.
Shobhit Chamar & Anr. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1084 of 1997
With
Crl. Appeal Nos. 262-263/98 @ SLP (Crl.) Nos. 3729-30/97
Decided on 4-3-98
Counsel for the Parties :
For the Appellants : R.K. Jain, Sr. Advocate, Ajay Bhalla, Ms. Abha R. Sharma, Advocates.
For the Respondent : Ranjit Kumar and B.B. Singh, Advocates.

Important Point
Though both A1 and A2 members of unlawful assembly and were murderers of six persons but in the facts of evidence that A1 had no fire arm in his hands and was not related to A2 so he might not have same degree of revenge and brutality as that of A2, so death sentence of A1 is not justified and is altered to life impri­sonment. But death sentence of A2 is affirmed.

Headnote:(i) Criminal Procedure Code, 1973-Section 235(2)-Award of sentence after recording conviction -Compliance - Appellants given sufficient opportunity of being heard on question of sentence-No grievance in trial Court or in High Court-Non-compliance sought to be raised for first time in Su­preme Court on ground of prejudice-Whether sustainable? (No).

       Held : (In cases relied on) it appears that grievance as regards non-compliance of Section 235(2) Cr.P.C. was made in the courts below and it is in these circumstances, the court held that the accused were not given sufficient oppor­tunity to be heard on the question of sentence and, therefore, there was non compliance of Section 235(2) Cr.P.C. The facts of the case before us are entirely different and in fact after pronouncing the judgment of conviction on February 16, 1996, both the appellants were remanded to judicial custody till 23rd February, 1996 and were given full opportu­nity of being heard on the question of sentence. The Advocate for the appellants was also heard fully on the question of sentence. It is in these circumstances, we find that the ratio of the above referred two decisions of this Court will have no application. The argument relat­ing to prejudice thus would not survive. (Para 11)

       (ii) Criminal Procedure Code, 1973-Section 313-Procedure fol­lowed in recording statements of appellants under-Whether there is alleged non-compliance of Section 313 and whether it vitiated the trial? (No).

       Held : We have perused all these reported decisions relied upon by the learned Advocates for the parties and we see no hesitation in conclud­ing that the challenge to the conviction based on non compliance of Section 313 Cr.P.C. first time in this appeal cannot be entertained unless the appellants demonstrate that the prejudice has been caused to them. In the present case as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. If the evidence of these witnesses is found acceptable, the conviction can be sustained unless it is shown by the appellants that a prejudice has been caused to them. No such prejudice was demonstrated before us and, therefore, we are unable to accept the contention raised on behalf of the appellants. (Para 20)

       (iii) Indian Penal Code, 1860-Sections 302/149, 380 and 460-Section 27 of Arms Act-Six persons murdered by fire arms supported by Medical evidence-Death homicidal-Complicity of appellants proved by evidence of four eye witnesses-All females-Staying in house of deceased-One of them author of FIR-Naming appellants-Identi­fied appellants-Courts below believing their evidence-Do not suffer from any infirmity-Conten­tion that if common object was to take revenge, appellants would not have spared the ladies-Whether sustain­able? (No, in view of ocular evidence of the four eye witnesses) -Eye witnesses close relatives of deceased-Whether their evidence be accepted only on corroboration by independent evidence? (No). (Paras 21, 25 & 27)

       Held : The courts below have very carefully scrutinized the evidence of four eye witnesses and found it trustworthy. We are in agreement with the appreciation of evidence done by the courts below and therefore, we uphold the finding as regards the complicity of both the appellants in the present crime. (Para 28)

       (iv) Death Sentence-Trial Court as well High Court unanimous-Whether present case is one of the rarest of the rare cases whe­ther death sentence to both the appellants must be held to be the appropriate sentence? [of A1 (No) but of A2 (Yes)]-Order accordingly.

       Held : The evidence on record discloses that A-1, A-2 and other miscreants came together along with Jagarnath Pandey and Ram Iqbal Pandey with their hands tied behind and forced Ram Iqbal Pandey to give a knock on the door under the pretext that he wanted to drink water. When the door was opened by Bhajurama Devi (P.W. 2), A-1 and his associates entered into the house. A-1 also exhorted that no male member of Haridwar family should be kept alive. Being a member of an unlawful assembly sharing a common object, he was rightly found guilty with the aid of Section 149 IPC for committing six murders. But, however, Bhajurama Devi (P.W. 2) in her evidence has admitted that A-1 was not having any fire arm in his hands at the time of entire epi­sode. Other three eye witnesses undoubtedly made a general statement that A-2 and other miscreants fired at the six persons who died on the spot. The evidence of all the four eye witnesses is consistent that Shobhit Chamar (A-2) had fired from his fire arm on all the six per­sons who died instantaneously. In the face of this evidence, a distinc­tion based on the degree of complicity and brutality will have to be drawn which has got a vital impact in awarding the sentence. It is well settled while awarding the sentence, the court has to bear in mind the crime and the criminal. Shobhit Chamar (A-2) had an axe to grind against Haridwar and his family members as he believed that Haridwar was responsible for causing murders of his brother and neph­ew. Shiv Prakash Pandey (A-1) as it appears from the record that he is not related to Shobhit Chamar (A-2) and, therefore, he might not be having the same degree of revenge and brutality as that of Shobhit Chamar (A-2) had. Keeping this distinction in mind, in our opinion, the case of Shiv Prakash Pandey (A-1) will not fall in the category of rarest of rare cases. This distinction was over looked by the courts below. We are, therefore, of the considered view that the death sen­tence awarded to Shiv Prakash Pandey (A-1) was not justified having regard to the facts and circumstances of the case. His case would not fall in the category of rarest of rare cases. We accordingly uphold the conviction of Shiv Prakash Pandey (A-1) under Section 302/149 IPC but however the death sentence awarded to him by the courts below is altered to one for life imprisonment. (Para 31)

       Coming to the case of Shobhit Chamar (A-2), the evidence on record proves beyond every reasonable doubt that he was the principal offend­er / miscreant who fired from his fire arm on all the six persons in­cluding the two innocent children. He had a deep routed revenge based upon suspicion about the murders of his brother and nephew by Haridwar Pandey which prompted him to take avenge against the family members of Haridwar and had gone to the extent of killing six persons belonging the family of Haridwar in a most brutal, heinous and barbaric manner. Nothing was suggested to the eye witnesses on behalf of A-2 that any of these deceased persons had played any role in committing the mur­ders of his brother and nephew and at any rate having regard to the ages of Anil Pandey and Sunil Pandey it could not be even remotely suspected that they could be the assailants. Shobhit Chamar (A-2) wanted not only to teach a lesson to the family members of Haridwar put also to create a terror in the minds of the family members of Haridwar to satisfy his ego and muscle power. A-2 exhibited most inhuman conduct while rejoicing his victory after commission of the crime. It is in this background, we are of the considered view that the trial Court as well as the High Court has committed no error in awarding death sentence to him. (Para 32)

       Mr. B.R. Singh, learned Counsel for the State of Bihar drew our attention to the recent judgment of this Court in Shiv Ram & Anr. v. State of U.P., with connected appeals 1988(1) SCC 149. This decision to a great extent is similar even on facts. (Para 33)

       Mr. Jain was unable to point out any mitigating circumstance which could pursuade us to alter the death of sentence of A-2. In our con­sidered view, the courts below were right in awarding the death sen­tence to Shobhit Chamar (A-2) as his case clearly falls within the ambit of rarest of rare cases. We accordingly confirm the death sen­tence of Shobhit Chamar (A-2). (Para 34)

       Held thus : The convictions of both the appellants on other counts i.e. under Sections 380 and 460 of the Indian Penal Code are also confirmed. Conviction and sentence of Shiv Prakash Pandey (A-1) under Section 27 of the Arms Act to stand set aside but, however, the conviction and sentence of Shobhit Chamar (A-2) under Section 27 of the Arms Act is confirmed. (Para 35)

       In the result, conviction and death sentence of Shobhit Chamar (A-2) passed by the trial Court and on Reference confirmed by the High Court is affirmed and his Criminal Appeal is dismissed. The judgment and order of conviction of Shiv Prakash Pandey (A-1) under Section 302/149 of the Indian Penal Code passed by the trial Court and on appeal confirmed by the High Court is upheld but however the death sentence awarded to him by the trial Court and on Reference confirmed by the High Court is altered to life imprisonment. (Para 36)