IMPORTANT POINT
The mere fact that infants are killed, without remorse, is not sufficient to bring the case within the category of 'the rarest of rare' cases.

JUDGMENT

Ahmadi, J. - The appellants in these two appeals by special leave are the six accused persons who were arraigned before the learned Third Additional Sessions Judge, Siwan, for trial. Criminal Appeal No. 343 of 1988 is by original accused Nos. 1, 2, 3 and 5 (Allauddin Mian, Keyamuddin Mian, Saheb Hussain and Afzal Mian) and Criminal Appeal No. 466 of 1988 is by original accused Nos. 4 and 6 (Sarif Mian and Mainuddin Mian). For the sake of convenience we will refer to them by their original positions in the Trial Court.

2. Accused Nos. 1 and 2 were charged with the commission of offences punishable under sections 302, 452 and 148, I.P.C. The prosecution case was that accused Nos. 1 and 2 along with accused Nos. 3 to 6 constituted an unlawful assembly, the common object of which was to kill P.W. 6 Baharan Mian and in pursuance of the said object accused No.1 caused the death of Sahana Khatoon aged about seven years and accused No.2 caused the death of Chand Tara aged about seven months. Accused Nos. 1 and 2 were substantively charged under section 302, I.P.C., whereas accused Nos. 3 to 6 were sought to be held vicariously liable under sections 302/149, I.P.C. Accused Nos. 3 and 4 were further charged under sections 447 and 148, I.P.C., and accused Nos. 5 and 6 were charged under sections 447 and 147, I.P.C. The trial court convicted accused Nos. 1 and 2 on all the three counts and awarded the sentence of death to both of them for the commission of the offence punishable under section 302, Indian Penal Code. Each of them was also sentenced to suffer rigorous imprisonment for one year on each count under sections 148 and 452, I.P.C. The substantive sentences were directed to run concurrently. Accused Nos. 3 and 4 were convicted under sections 302/149, 447 and 148, I.P.C. and for the offence under sections 302/149 each of them was directed to suffer imprisonment for life. For the offences under sections 148 and 447, I.P.C., they were directed to suffer rigorous imprisonments for one year and three months, respectively. The substantive sentences were ordered to run concurrently. Accused Nos. 5 and 6 were convicted under sections 302/149,447 and 147, I.P.C. For the offence under sections 302/149, I.P.C., they were sentenced to undergo imprisonment for life whereas for the offences punishable under sections 447 and 147, I.P.C., they were directed to suffer rigorous imprisonments for three months and six months, respectively. The substantive sentences were ordered to run concurrently. Since accused Nos. 1 and 2 were awarded the death penalty a reference was made to the High Court which came to be numbered as Reference No.3 of 1987. Accused Nos. 1, 2, 3 and 5 preferred an appeal, Criminal Appeal No. 140 of 1987, challenging their convictions and sentences awarded to them by the trial court. Accused Nos. 4 and 6 preferred a separate appeal, Criminal Appeal No. 136 of 1987, against their convictions and sentences by the trial court. The said reference and both the appeals were disposed of by the High Court by a common judgment. The High Court dismissed the appeal insofar as accused Nos. 1 and 2 are concerned and, while accepting the reference, confirmed the sentence of death awarded to them for the murder of the two infant girls. The conviction of the remaining four accused under sections 302/149 was, however, altered to sections 326/149 and the sentence of imprisonment for life given to each of them was substituted by a sentence of rigorous imprisonment for seven years. Their convictions and sentences on the other counts were, however, maintained. Feeling aggrieved by the convictions and sentences awarded to them on different counts all the six accused persons have preferred the present two appeals by special leave.

3. Briefly stated the prosecution case is that on the afternoon of 25th July, 1985 around 4.30 p.m. when P.W. 6 Baharan Mian was sitting at the entrance of his house, the aforesaid six accused persons came from the