IMPORTANT POINT
The Court while awarding the capital punishment must take into account the “aggravating as well as mitigating circumstances"

JUDGMENT

Dr. A.S. 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 shophouse. 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 PW 3 after breaking a window, entered the shop-house and found Durga Bhagat, Ram Sunder Bhagat and Pankaj Bhagat having been burnt 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 PW 10, Ex. 2 First Information Report was recorded and further investigation was taken in hand.

2. 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.

3. 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 from jail they (appellants herein) had threatened that the entire family of the complainant would be done to death for implicating them in the earlier dacoity case.

4. The prosecution examined 13 witnesses in support of its case to connect the appellants and seven others with the crime. The trial court after analysing the evidence came to the conclusion that the case against the appellants and seven others stood proved beyond a reasonable doubt rod convicted all the eleven of them for offences under Section 302/34 IPC and Section 436/34 IPC. While the four appellants, namely, Sheikh Ishaque, Sheikh IIyas, 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 18.8.1984, 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.

5. With the assistance of learned counsel for the parties, we have gone through the relevant evidence and the judgments of the courts below.

6. Bald