Masalti vs State of U.P.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 30-34 of 1964

Decision Date: 04/05/1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, Raghubar Dayal

In the matter titled Masalti versus State of Uttar Pradesh, the Supreme Court issued its judgment on the fourth day of May, 1964. The judgment was authored by Justice P B Gajendragadkar, who sat as Chief Justice, and was accompanied by Justices K N Wanchoo, K C Das Gupta and Raghubar Dayal. The official citation for the decision appears as 1965 AIR 202 and 1964 SCR (8) 133, with subsequent references recorded in various law reports. The case was an appeal by special leave under Article 136 of the Constitution, arising from murders committed by a village faction that formed an unlawful assembly, and it raised questions concerning the imposition of the death penalty, the appraisal of evidence, and the validity of prosecution procedures, including the examination of witnesses cited by the prosecution. The headnote records that forty individuals belonging to a village faction, which was deemed an unlawful assembly, were tried before an Additional Sessions Judge for the murder of five members of a rival faction using firearms, pursuant to sections 302 read with 149 of the Indian Penal Code and other relevant provisions. The trial court found thirty‑five of the accused guilty; ten of those who were in possession of firearms received the death sentence, while the remaining convicted persons were sentenced to life imprisonment. Three of the convicted individuals appealed to the High Court, seeking confirmation of the death sentences under section 374 of the Code of Criminal Procedure. The High Court acquitted seven appellants, upheld the trial court’s findings against the others, and confirmed the death sentences imposed on the ten accused who had borne arms. Subsequently, the ten sentenced individuals, together with six additional persons, petitioned this Court by way of special leave. The Court held that in criminal appeals involving death sentences, it would be improper to refuse consideration of relevant factual or legal pleas merely because they had not been raised before the High Court; when such a point had been expressly urged and ignored by the High Court, the appellant was entitled, as a matter of right, to obtain a decision from this Court, and no strict rule could prohibit raising such pleas in these appeals. The Court further observed that it would be unsound to impose a general rule requiring the prosecution to examine every witness it cited, especially when the witness’s evidence was immaterial or the witness was known to have been coerced or influenced. Finally, the Court emphasized that the evidence of a witness could not be dismissed solely on the basis that the witness was partisan or had a personal interest, particularly in cases involving murders by a village faction, because such a mechanical rejection would inevitably result in a miscarriage of justice.

In this case the Court observed that a criminal court faced with a large number of offenders and victims could rightly apply a test requiring that a conviction of any particular accused be sustained only when a specified number of witnesses presented a consistent account against that accused; although such a test was mechanical, the Court held it was not unreasonable. The Court further explained that the punishment prescribed by section 149 of the Indian Penal Code operated in a vicarious manner and did not obligate that every member of an unlawful assembly actually commit the offence; consequently, the observations made in Baladin v. State of U.P. had to be read in the factual context of that decision and could not be treated as an absolute rule of law, as clarified by the citation to Baladin v. State of Uttar Pradesh, AIR 1958 SC 181. The Court rejected the proposition that a person convicted of murder under section 302 read with section 149 could not be sentenced to death unless it was proved that he himself had carried out the killing, distinguishing the earlier authority of Dalip Singh v. State of Punjab, 1954 SCR 145. The Court also found no error in the discretionary exercise of the lower courts, which had distinguished between the ten accused who possessed firearms and were sentenced to death and the remaining accused who did not possess firearms and were sentenced to life imprisonment, all under the common charge of sections 302 and 149. Finally, taking into account the specific circumstances of the present case, the Court concluded that justice would be better served by modifying the death sentences imposed on three accused persons aged eighteen, twenty‑three and twenty‑four, who had joined the unlawful assembly under the pressure of their elders, to life imprisonment. The judgment concerned criminal appeals numbered 30‑34 of 1964, filed by special leave against the order of the Allahabad High Court dated 22 October 1963 in criminal appeals 77 and 78 of 1963. Counsel for the appellant in appeal 30 of 1964 was identified, as were counsel for the appellants in appeals 31, 32‑34 of 1964, and counsel for the respondents. The judgment was delivered by Chief Justice Gajendragadkar. Forty persons had been charged with several offences, the principal one being under section 302 read with section 149 of the Indian Penal Code. The trial was conducted by the first Additional Sessions Judge at Jhansi, who also framed other charges under sections 307/149, 201/149, 307, 395, 396, 149, 449 and the Prevention of Corruption Act. The learned trial judge held that the charges were not proved against five of the accused and also found that the charges under sections 395 and 396 were not proved against any of them. The remaining thirty‑five accused were found guilty, with ten sentenced to death and twenty‑five to life imprisonment for the principal offence, and were ordered to undergo separate terms of imprisonment for the other offences, although those details were not essential to the present appeals.

The trial judge concluded that the evidence did not establish the offences under sections 396 against any of the accused, and therefore those charges were dismissed. He then examined the remaining allegations and determined that thirty‑five of the forty individuals charged had been proved guilty of at least one offence. Regarding the principal charge of murder committed in furtherance of a common intention under section 302 read with section 149, the judge imposed the death penalty on ten of the accused and sentenced the other twenty‑five to imprisonment for life. In addition, he ordered that each of those ten and twenty‑five persons should serve appropriate terms of imprisonment for the other offences with which they were convicted, although he noted that detailing those additional sentences was unnecessary for the present appeals.

The trial judge delivered his judgment on 31 December 1962, after which the thirty‑five convicted persons filed three separate appeals collectively before the Allahabad High Court. Simultaneously, the ten death sentences were referred to the same High Court for confirmation as required by law. The High Court examined the appeals and held that seven of the thirty‑five appellants could not be linked to any of the offences, consequently directing their acquittal. For the remaining twenty‑eight appellants, the High Court affirmed both the convictions and the sentences originally imposed by the trial court. Accordingly, the High Court also confirmed the death sentences of the ten individuals, thereby authorising the execution of those punishments.

Against the High Court’s decision, fifteen petitions were filed before this Court seeking special leave to appeal; however, only sixteen distinct accused actually presented appeals before this Court. Prior to addressing the substantive questions raised in these appeals, the Court found it necessary to briefly recite the factual background upon which the prosecution’s case largely rests. The criminal episode that initiated the present proceedings occurred on 29 November 1961 at approximately eight o’clock in the morning in the village of Bilati Khet, situated in Jhansi district. The village was characterised by a long‑standing rivalry and hostility between two factions, each headed by a different leader.

One faction was led by a man named Gayadin, whose family suffered the murder of Gayadin himself together with four of his relatives on the said date. According to the prosecution, the killings were carried out by members of the opposing faction, a group that includes the present appellants before this Court. Hostilities between the two groups had persisted for many years with only intermittent periods of calm. The rival faction was commanded by Laxmi Prasad, also known as Laxmi Narain, who is among the appellants presently before the Court. In the most recent village panchayat election, Laxmi Prasad was elected as Pradhan, defeating the candidate supported by Gayadin, thereby intensifying the animosity.

On 28 November 1961, a dispute over the boundary between two fields—one owned by Gayadin and the other by Laxmi Prasad—escalated into an altercation between members of the two factions. Attempts were made to resolve the disagreement through arbitration, but those efforts proved unsuccessful. The narrative indicates that Laxmi Prasad and his associates refused to submit to the arbitration process, setting the stage for the violent events that unfolded the following day.

The members of Laxmi Prasad’s faction refused to accept any arbitration and consequently left the meeting that had been convened for that purpose. They departed while threatening that they would resolve the disputed matter on the following day. That threat marked the grim conclusion of the incident that had occurred on 28 November. In the early hours of 29 November, Bahoran, one of Gayadin’s sons, stepped outside his home in order to relieve himself. At that moment he was carrying a pharsa, a type of wooden club. While he was in the field he encountered Laxmi Prasad, who immediately assaulted him with a lathi. Bahoran defended himself by striking Laxmi Prasad with his own pharsa. During the ensuing struggle Laxmi Prasad’s nose was cut and began to bleed. Angered by the injury, Laxmi Prasad returned to his house and summoned the entire crowd that belonged to his faction. After the altercation, Bahoran finished his relief, washed his hands and walked northward to the place where his father, brothers and other relatives were gathered around a fire for warmth. At that moment Ram Prasad and Dayaram hurried to the scene and informed Bahoran and his family that Laxmi Prasad and his companions were heavily armed with guns, spears, swords, gandasas and lathis, and were advancing toward Gayadin’s house with the intention of killing every member of Gayadin’s family. Upon receiving this alarming report, Gayadin, together with his friends and relatives, contemplated moving toward their own house to meet the threat.

Shortly thereafter, Laxmi Prasad and his followers arrived near Gayadin’s residence. Laxmi Prasad discharged a firearm. Bhagwati, who had a large bundle of cartridges concealed in the folds of his dhoti, encouraged Laxmi Prasad to fire at all the persons seated near the fire to the north of the house, urging him to exterminate the entire Gayadin family. Hearing this exhortation, the people gathered by the fire hurried inside the house and shut the doors. The armed assailants then broke open the doors and entered the interior of Gayadin’s dwelling. Inside, they pursued Gayadin onto the upper storey and shot him dead. In other parts of the house, Brindaban, Radha Saran and Dayaram were hiding in separate rooms; the intruders forced open those rooms and shot each of them, killing them. Bahoran and his brother Shiroman Singh managed to escape through the tiled roof and fled to the cattleshed of Harbans, which lay to the south‑east of Gayadin’s house. Shiroman concealed himself in a godown while Bahoran hid in an upper‑storey room where chaff was stored. After killing Gayadin, Brindaban, Radha Saran and Dayaram, the attackers brutally dragged the bodies out of the house and began searching for Bahoran and any other male occupants. While the dead bodies were being pulled, Gori Dulaiya, Gayadin’s wife, chased after the assailants and begged them not to remove the corpses. One of the assailants....

In this case, the Court described that after a woman was struck with a stick, she was forced to turn back. The assailants then dragged the dead bodies eastward from the house. Upon reaching Harbans’s cattle shed, they forced open the outer door and entered. Inside, they wounded Harbans and located Shiroman Singh, whom they killed immediately. The five corpses were then transported to the field of Bhagwati. In that field the perpetrators prepared two large piles of cow‑dung cakes. On the first pile they placed the bodies of Gayadin, Brindaban, Radha Saran and Davaram; on the second pile they placed the body of Shiroman Singh. They poured Kerosine oil over the bodies and set them alight. The Court summarized that this horrific series of murders gave rise to the present proceedings. After the assailants left Gayadin’s house carrying the bodies, Rahoran emerged from his hiding place, hurried to the Krichh Police Station and filed a First Information Report at about eleven o’clock. In that report he provided all material details concerning the commission of the offence and identified thirty‑five persons as the assailants. The first committal order, dated 31 March 1962, likewise referred to thirty‑five accused. Subsequently, on 14 May 1962, five additional persons were added to the list by another committal order. When the police received the First Information Report, a police party arrived at the scene on bicycles, extinguished the fire, and retrieved the partially burned bodies of the five victims. Those bodies were identified and sent for post‑mortem examination. The injured individuals—Harbans, Ram Prasad, Mansa Ram and Smt Gori Dulaiya—were sent for medical treatment. A post‑mortem examination was conducted on the dead and statements of witnesses were recorded during the investigation. The investigation resulted in several charges being framed against forty persons, leading to their trial before the First Additional Sessions Judge at Jhansi. The prosecution’s case relied on the testimony of twelve eyewitnesses. All of the accused denied any involvement in the offences and contended that the case against them was false, alleging that the prosecution relied on hostile witnesses lacking credibility. The trial judge, in substance, rejected these defence pleas and accepted the prosecution evidence, except with respect to five of the accused. On appeal, the appellants raised numerous contentions, which were dismissed, and the trial court’s findings against the appellants were upheld. However, the High Court reversed the trial court’s conclusions concerning seven accused, whose cases are not before this Court. The twelve

The Court listed the persons who gave direct testimony against the appellants and their co‑accused as follows: Bahoran (P.W. 1), Basanti Lal (P.W. 2), Rameshwar Dayal (P.W. 3), Prabhu Dayal (P.W. 5), Pancham (P.W. 6), Swarup Singh (P.W. 14), Kasturi (P.W. 15), Thakur Das (P.W. 16), Shyamlal (P.W. 17), Harbans (P.W. 18), Dropadi (P.W. 19), and Kishori Lal (P.W. 20). The High Court examined the evidence of each of these witnesses with close scrutiny. In doing so, it concluded that the testimony of Bahoran and Prabhu Dayal could be disregarded because the Court found material infirmities in those statements. By contrast, the High Court accepted the remaining ten witnesses’ accounts as substantially true and correct.

While assessing this oral evidence, the High Court noted that most of the witnesses belonged to the faction of Gayadin and therefore were likely to be partisan. The Court also observed a common characteristic of the testimonies: the witnesses described the incident in largely similar terms and did not specifically attribute overt acts to any particular assailant except to Laxmi Prasad, who was identified as accused number 1. This analytical approach led the High Court to confirm the convictions of those accused against whom four or more witnesses gave consistent accounts. Applying that test, the High Court acquitted seven accused persons, while upholding the convictions of the others.

Regarding sentencing, the High Court recognized that ten individuals had been sentenced to death. It observed that, apart from Laxmi Prasad, there was no proof that the remaining nine had actually discharged a firearm or caused the death of any of the five victims. Nevertheless, the Court held that because all of them were members of an unlawful assembly whose common object was to exterminate the male members of Gayadin’s family, each was equally guilty of murder under sections 302 and 149 of the Indian Penal Code. Consequently, the Court found it reasonable to impose the death penalty on those assailants who were shown to have been armed on the occasion.

Thus, the High Court upheld the convictions of twenty‑eight appellants who had filed appeals and confirmed the death sentences imposed on ten of them. In the present appeals, counsel for the appellants, Mr Sawhney, argued that the High Court had failed to discharge its duty properly when it confirmed the death sentences of the ten accused. He relied on the Supreme Court’s decision in Jumman & Ors. v. State of Punjab, citing the Court’s emphasis on the mandatory requirements prescribed by section 374 of the Code of Criminal Procedure.

In this case, the Court observed that the provisions of the Code of Criminal Procedure require the High Court, when it is called upon to consider a reference for confirmation of a death sentence imposed by a Sessions Judge, to examine the whole case afresh before deciding whether to confirm the death sentence. Section 374 of the Code stipulates that a death sentence cannot be carried out unless the High Court confirms it. Consequently, a death sentence handed down by the Sessions Court does not become effective until the High Court gives its confirmation. Only after such confirmation can the sentence be executed. For this reason, the Supreme Court emphasized the solemn nature of the proceedings that are initiated under section 374, and also noted that section 375 empowers the High Court to admit additional evidence if it deems such admission necessary. The proceedings before the High Court therefore grant the condemned prisoner a right to be heard on the merits of the case and obligate the High Court to consider the matter independently, without being bound by the findings of the Sessions Court. The High Court’s conclusions on the merits must be formed independently, which obliges the High Court to go through the entire evidential record, to weigh the arguments for and against the prosecution’s case, and to be satisfied that the offence charged under section 302 of the Indian Penal Code has been proved beyond reasonable doubt and that the death sentence it is asked to confirm is fully justified. Counsel for the appellants, Mr. Sawhney, argued that the High Court had failed to fulfil this essential requirement of section 374 in the present appeals. He further asserted that because ten persons had been sentenced to death, the Supreme Court should examine the evidence itself rather than accept the findings of fact recorded by the lower court. The Court was not persuaded by this line of argument. It observed that, in a murder trial where an accused is charged with an offence punishable under section 302, the risk of facing the maximum penalty under the Indian Penal Code necessarily demands a cautious, circumspect and careful judicial approach. Accordingly, when dealing with appeals or reference proceedings that involve the confirmation of a death sentence, the High Court must also proceed with great care, scrutinising all relevant and material circumstances before upholding the conviction and confirming the death sentence. The Court stressed that every argument raised by the appellants and every material infirmity pointed out on their behalf must be examined scrupulously before a final decision is rendered.

In this case the Court observed that the trial Judge’s order of death for ten individuals necessarily imposed a heavier and more demanding duty upon the High Court when it considered the present appeals. The Court stated that it had examined the judgment issued by the High Court with great care and was convinced that the criticism advanced by Mr. Sawhney, who alleged that the High Court had failed to give proper care and attention to the matters raised, was not justified. According to the judgment, the High Court had meticulously reviewed the arguments presented on behalf of the appellants, had accurately summarized the testimony of each witness, and had closely scrutinized any weaknesses apparent in that testimony. The High Court also gave due consideration to the contention that there existed an admitted hostility between the two village factions, and it did not overlook the common characteristics found in the evidence tendered by the various witnesses. After weighing all the points urged before it, the High Court adopted what it considered a safe test for relying on direct evidence, holding that unless at least four witnesses provided a consistent account against any of the accused, the prosecution could not be said to have proved the case beyond reasonable doubt. Having noted the manner in which the High Court dealt with the appeals, the Supreme Court affirmed that it could not accept the general criticism made by Mr. Sawhney against the High Court’s judgment. In this connection Mr. Sawhney had strongly relied on the assertion that the High Court had omitted consideration of a crucial point favorable to the defence, namely the failure of the prosecution to call three material witnesses whose names appeared in the witness‑list contained in the calendar sent by the committing Magistrate to the trial Judge. Those witnesses were identified as Ram Prasad, Mansa Ram and Rani Dulhan. The record shows that the defence raised this issue before the trial Court, but the trial Court rejected it. The prosecution’s counsel had applied to the trial Court, explaining that it could not examine the three witnesses because Ram Prasad and Mansa Ram had been won over by the defence, and because Rani Dulhan, the widow of one of the victims, was suffering from such mental shock that she could not give a coherent deposition. The trial Judge accepted this application and did not insist that the prosecution examine the three witnesses. Subsequently, the defence filed three further applications—numbered 247B, 248B and 249B—seeking to have the three witnesses examined under section 540 of the Criminal Procedure Code. The trial Judge rejected each of those applications, and consequently the case concluded without the testimony of the three witnesses being taken before the trial Court. In rejecting the defence applications, the trial Judge had carefully considered the validity of the defence’s claim that the evidence of those witnesses before the committing Magistrate made them material, and that their absence would prejudice the defence. The trial Judge concluded that the evidence the three witnesses might have given was not essential for a just decision, and that it was unreasonable to infer any ulterior motive on the part of the prosecution for suppressing their testimony. The Court noted that this issue had not been raised before the High Court, and therefore it did not appear in the High Court’s judgment. Consequently the Supreme Court was not prepared to accept Mr. Sawhney’s argument that, even though the point was not raised before the High Court, the appellants were entitled to raise it at this stage.

The trial Judge reviewed carefully the defence claim that the statements recorded from the three witnesses before the Committing Magistrate established them as material witnesses, and that the defence argued their absence would prejudice its case. After this examination the Judge concluded that the testimony that these three witnesses could potentially provide was not essential for reaching a just determination of the matter, and he also found that it was unreasonable to allege that the prosecution was deliberately trying to suppress their evidence. This portion of the judgment demonstrates that the trial Judge considered every relevant facet of the issue before declining to invoke his authority under section 540 of the Code of Criminal Procedure. It is clear from the record that the defence did not raise this particular contention before the High Court, and consequently the High Court’s judgment contains no discussion of the point.

The Court declined to accept the argument advanced by counsel for the appellant that, even though the point was not raised before the High Court, the appellants should be permitted to invite this Court’s consideration because ten persons have been sentenced to death. The Court acknowledged that, in a situation where a factual question plainly emerges from the record, or where a legal question that is both relevant and material can be argued without calling for additional evidence, the appellant may, after the trial court’s rejection, be allowed to seek review of that issue in an appeal under article 136 of the Constitution. In capital cases, it may be inappropriate to refuse consideration of material factual or legal pleas merely because they were not pressed before the High Court. If a party can demonstrate that such pleas were indeed raised before the High Court and left unanswered, that party is unquestionably entitled to a decision on those pleas from this Court. Nonetheless, no rigid rule can be imposed that bars the raising of such pleas in article 136 applications. In the present matter, however, the Court is satisfied that the contention presented by counsel for the appellant lacks any substance. The Court noted that in serious offences involving numerous accused, it is common for attempts either to terrorise or to win over prosecution witnesses. When the prosecutor, in good faith, believes that certain witnesses have been compromised, it would be unreasonable to demand that those witnesses be produced before the Court. While the prosecution has a duty to place before the Court all material evidence necessary for presenting its case, it would be unsound to adopt a blanket rule requiring examination of every witness when his evidence is not material or when the witness has been persuaded or intimidated. The defence therefore retained the option of examining those witnesses as its own, and the Court could also have called them in the interest of justice under section 540 of the Code of Criminal Procedure, but it chose not to do so after due deliberation.

In this case, the Court observed that while the prosecution is obligated to present every material piece of evidence necessary for developing its case, it would be unsound to impose a universal rule requiring the examination of every witness, even when the witness’s testimony is immaterial or when it is known that the witness has been won over or terrorised. The Court explained that, in such circumstances, the defence remains free to call and cross‑examine those witnesses as its own, and the Court itself may also summon such witnesses under section 540 of the Criminal Procedure Code if the interests of justice demand it. The Court noted that the defence chose not to examine the witnesses in question, and after careful consideration the Court declined to exercise its power under section 540 of the Criminal Procedure Code. This decision constitutes one aspect that the Court had to bear in mind. The Court further stated that the trial Court had found that the testimony that those witnesses might have given was not essential for reaching a just decision in the case, and that the trial Court had evaluated the possible testimony against the earlier statements already recorded, treating that assessment as a factual finding. Since the appellants did not challenge this factual finding before the High Court, the Court saw no basis for them to now contend that the finding was erroneous.

The Court then turned to the specific matter of Rani Dulhan, holding that it would be unreasonable to demand that the prosecution first produce evidence showing she suffered such a mental shock that she could not give a coherent account before permitting the prosecutor to forgo her examination. The Court pointed out that the brutal killing of five male members of her family by the assailants clearly supported the prosecutor’s conclusion that she was mentally unbalanced. Regarding the allegation that Ram Prasad and Mansa Ram had been won over by the defence, the Court observed that the trial Court appeared satisfied with its assessment; otherwise the trial Court would have readily permitted the defence to invoke its powers under section 540 of the Criminal Procedure Code. The Court inferred that the appellants’ counsel did not raise this point because it seemed incontrovertible. Consequently, the Court declined to allow Mr Sawhney to re‑examine the evidence on the ground that an important defence contention had not been considered by the High Court. Finally, the Court noted that Mr Sawhney argued that witnesses belonging to the victims’ faction in a murder trial should be rejected because they might falsely implicate members of a rival faction out of enmity and partisan feeling.

The Court observed that when a criminal court was required to evaluate testimony offered by witnesses who were partisan or had a personal interest, the court had to exercise extreme caution in weighing such testimony. It noted that the court must consider, among other things, whether the testimony contained any inconsistencies, whether the testimony appeared to be genuine, and whether the narrative presented by the testimony was plausible. However, the Court stated that it would be unreasonable to discard testimony merely because the witnesses were partisan or interested. It further explained that in many villages, factions existed and murders sometimes resulted from enmity between those factions, so criminal courts frequently encountered partisan testimony. The Court warned that a mechanical rejection of such evidence on the sole ground of partisanship would inevitably lead to a miscarriage of justice. It added that no rigid rule could be prescribed as to how much of the evidence should be accepted, and that the judicial approach had to be cautious but could not accept the argument that partisan evidence must be rejected outright. The Court then addressed a submission that the witnesses’ statements followed a uniform pattern and that, because no specific role could be assigned to each assailant, the evidence should not have been admitted. It found this criticism unfounded. The Court explained that when a crowd of assailants, acting as an unlawful assembly, committed murder to further a common objective, it was often impossible for witnesses to describe precisely the part played by each individual. Moreover, in a large armed crowd, not every person needed to take an active part in the assault. In the present case, for example, several weapons were carried by different members of the unlawful assembly, yet it appeared that only the guns were actually used and that was sufficient to cause the deaths of five persons. Consequently, it would be unreasonable to reject the testimony concerning the other weapons merely because those weapons were not employed. The Court acknowledged that appreciating evidence in such a complex situation was undoubtedly difficult, but emphasized that criminal courts were obliged to make their best effort, to sift the evidence carefully, and to determine which portions were true and which were not. The Court further noted that the High Court had declined to rely on the evidence of Bahoran and Prabhu Dayal, finding that the testimony of those two witnesses suffered from serious infirmities. Finally, the Court recorded that counsel for the appellants argued that the test applied by the High Court in convicting the appellants was mechanical, and that counsel had advanced this argument in the proceedings.

The Court noted that, according to the Indian Evidence Act, testimony that is trustworthy and given by a single witness could be sufficient to secure a conviction of an accused person, whereas testimony that is not trustworthy, even if offered by six witnesses, would not be adequate to sustain a conviction. The Court acknowledged that this proposition is correct. However, the Court explained that when a criminal court is confronted with evidence relating to an offence that involves many offenders and many victims, it is customary to apply a test that requires the conviction to be supported by the accounts of two, three, or more witnesses who present a consistent description of the incident. The Court observed that this test might appear mechanical, but it could not be characterised as irrational or unreasonable. Consequently, the Court held that the appellants could not maintain a grievance against the use of this test.

The Court further observed that, if the prosecution were to argue, it could say that seven accused individuals were acquitted because the evidence against them failed to satisfy the mechanical requirement of having four reliable witnesses, and that, had this requirement not been applied, those individuals might have been convicted. The Court stressed that the decisive factor is the quality of the evidence, not merely the number of witnesses who provide it. Nevertheless, the Court found it sometimes appropriate to employ a test such as the one adopted by the High Court in the present case.

Mr. Sawhney then attempted to contend that the High Court had failed to give effect to the principles laid down by this Court in the decision of Baladin v. State of Uttar Pradesh ('). The Court recalled that, in that precedent, Justice Sinha, speaking for the Court, had observed that mere presence in an assembly does not automatically render a person a member of an unlawful assembly unless it is shown that the person performed some act, omitted an act, or otherwise did something that would make him a member, or unless the situation falls within the provisions of section 142 of the Indian Penal Code.

The Court noted that Mr. Sawhney’s argument relied on the proposition that the evidence produced by the prosecution in the present case did not assign any specific overt act to most of the accused persons. Accordingly, Mr. Sawhney claimed that the High Court was in error in concluding that the appellants were members of an unlawful assembly. The Court recognised that the observation relied upon by Mr. Sawhney, at first glance, appeared to support his contention. However, with due respect, the Court added that the observation could not be interpreted as establishing a general rule of law that, in the absence of proof of an overt act, a person alleged to be a member of an unlawful assembly cannot be said to be a member of such an assembly. In evaluating the effect of the observation on which Mr. Sawhney based his argument, the Court emphasized that the factual findings in the case must be kept in mind.

In the case referred to as Baladin(1), the record showed that members of the appellants’ family together with other villagers gathered in one place. Some of those present shared the unlawful objective that defined the assembly, while others were only passive onlookers. The Court explained that merely being present in such a gathering does not automatically make a person a member of an unlawful assembly. To establish that an individual is a member, the prosecution must demonstrate that the person was one of the persons actually forming the assembly and that he, together with the others, entertained the common object defined in section 141 of the Indian Penal Code. Section 142 further states that anyone who, knowing that the facts render the gathering unlawful, intentionally joins it or continues to remain in it, becomes a member of an unlawful assembly. Accordingly, an assembly of five or more persons that is motivated by, and entertains, at least one of the common objects enumerated in the five clauses of section 141 is deemed unlawful. The essential issue, therefore, is to ascertain whether the gathering consisted of at least five persons and whether those persons entertained one or more of the specified common objects. While addressing this issue, the Court noted that it is necessary to examine whether some of the persons present were merely passive witnesses who had joined the assembly out of idle curiosity and without any intention to adopt the common object of the assembly.

The observations made by the Court in Baladin(1) acquire particular importance in this context. The Court warned that the law does not require proof that a person accused of being a member of an unlawful assembly must have performed an overt illegal act or committed an illegal omission in furtherance of the common object before that person can be held liable. Section 149 clarifies that if any member of an unlawful assembly commits an offence in prosecution of the common object, or if the members know that such an offence is likely to be committed, every person who is a member of the assembly at the time of the offence is guilty of that offence. This provision demonstrates a vicarious principle of liability, meaning that punishment under section 149 does not depend on each member actually carrying out the prohibited act. Consequently, the Court was satisfied that the statements in Baladin(1) must be understood in light of the particular facts of that case and cannot be taken as establishing a universal rule that every person present in a gathering must have performed an overt illegal act to be deemed a member of an unlawful assembly.

The Court observed that the legal proposition suggested by Mr. Sawhney does not apply in the present circumstances. The High Court had undertaken a careful examination of the evidence and concluded that the entire group of persons who formed the assembly were members of the faction led by Laxmi Prasad. According to the High Court’s findings, these individuals assembled together, were armed with several weapons, and shared a common object, the pursuit of which resulted in the commission of five murders on the day in question. Consequently, the argument that the High Court’s conclusion that the appellants are guilty of the offences charged lacks support from the principles of law articulated by this Court in the case of Baladin (1) A.I.R. 1956 S.C. 181 is without merit. The Court therefore held that there was no occasion or justification for this Court to reassess the evidence independently, and the general grounds of attack raised by Mr. Sawhney in challenging the validity of the High Court’s findings fail.

The remaining issue for consideration related to the death sentences imposed on ten persons. Mr. Sawhney contended that, in confirming the death sentences imposed by the trial Court on those ten accused, the High Court had applied a mechanical rule. Specifically, the High Court ordered that the ten persons who had carried firearms should be sentenced to death, while other convicted persons under sections 302 and 149 should receive imprisonment for life. The Court noted that, except for Laxmi Prasad, the charge under sections 302 and 149 against the other accused rested on the premise that five murders had been committed by some members of the unlawful assembly of which they were members. Mr. Sawhney argued that unless it could be shown that a particular accused personally committed one of the murders, a death sentence should not be imposed on him. In other words, the contention was that a person found guilty of murder under sections 302 and 149, without proof of personal participation in the homicide, should not be liable to the death penalty.

To support this argument, Mr. Sawhney relied on observations made by Justice Bose, speaking for the Court in Dalip Singh v. State of Punjab (1) (1954] S.C.R. 145. In that case, the Court had observed that the power to enhance a sentence from transportation to death should be exercised only in the rarest of circumstances and for the strongest reasons. The Court further added that it is insufficient for an appellate court merely to state or think that it would have imposed a higher penalty; the discretion to impose such a penalty belongs to the trial judge, and an appellate court may intervene only where that discretion has been exercised improperly. The present Court held that these observations were not relevant because the present matter did not involve a scenario in which the High Court had enhanced a sentence originally imposed by the trial judge. Both the trial Court and the High Court agreed that the death sentences imposed on the ten persons were justified by the circumstances of the case and the requirements of justice.

In the matter before the Court, the High Court had examined an appeal in which it had altered the punishment originally imposed by the trial judge. Both the trial Court and the High Court concurred that the death sentences awarded to ten accused persons were appropriate in view of the facts of the case and satisfied the requirements of justice as expressed in the authority cited as (1) (1954) S.C.R. 145. The Court observed that it would be unreasonable to accept a narrow legal proposition that a death penalty could be imposed only when the individual accused had personally carried out the act of murder. The question, therefore, was whether the statutory death punishment could also apply to persons who were found guilty because they participated in an unlawful assembly whose common object led to murder, even though they themselves did not actually kill the victim. The answer to that question, the Court held, depended on the particular facts and circumstances of each case. Turning to the facts of the present case, the Court found that the entire group of participants belonged to the faction headed by Laxmi Prasad. The group assembled together while armed with lethal weapons, and they were motivated by a shared purpose of eliminating the male members of the family of Gayadin. Ten of the participants were in possession of firearms, while the remaining individuals carried a variety of other deadly weapons. The evidence presented before the courts demonstrated that five of the murders were committed by shooting, and each of those shootings was carried out by members of the unlawful assembly.

The conduct of the members of the unlawful assembly, both before the killings and after they occurred, had been examined by the lower courts, and those courts concluded that, in order to curb such a grave and organized criminal conduct among villagers, it was necessary to impose the death penalty on the ten assembly members who had been armed with firearms. The Court found no basis to claim that either the trial judge or the High Court had exercised their discretionary power in an improper manner. Consequently, the Court saw no merit in the argument advanced by counsel that the High Court had applied a mechanical and unreasonable test in determining the appropriate sentence. Nonetheless, the Court identified three specific individuals for whom it felt intervention was warranted. The first was accused number nine, Ram Saran, who was eighteen years old; the second was accused number eleven, Asha Ram, who was twenty‑three years old; and the third was accused number sixteen, Deo Prasad, who was twenty‑four years old. Both Ram Saran and Asha Ram were sons of Bhagwati, who was accused number two, and each of them had been sentenced to death. Deo Prasad had also received a death sentence. Considering the circumstances under which the unlawful assembly had been formed, the Court was satisfied that these young men had likely been drawn into the assembly under the pressure and influence of senior members of their respective families. The list of accused demonstrated that the unlawful assembly was composed of individuals from several different families, reinforcing the view that the younger participants had not acted independently but had been compelled by family elders to take part in the criminal enterprise.

The Court considered that, in the villages concerned, the local factions typically behaved in a manner that made it reasonable to conclude that the three young men had been pressured by senior members of their families to join the unlawful assembly on that morning. Accordingly, the Court held that the interests of justice would be best served by changing the death sentences imposed on those individuals to sentences of life imprisonment. The Court then affirmed the convictions and sentences that had been ordered against all of the appellants, but it altered the punishments for accused numbers 9, 11 and 16, substituting life imprisonment for the death penalty in each of those cases. Consequently, the Court dismissed the appeals, subject to the modification of the sentences for the three accused, and entered an order dismissing the appeals.