1995  3  scr 1197

the judgment of the companyrt was delivered by
k jayachandra reddy j. a rioting of grave nature took place
shamshul kanwar v. state of u.p. k jayachandra reddy j 1201
in village sakhni within the limits of police station jahangirabad in
district bulandshahr at about 3.30 p.m. on 1.2.89 in the companyrse of which 11
people died and some others were injured including a police companystable who
was on bandobust duty. in respect of this occurrence 21 accused were tried
for offences punishable under sections 148 302/149 307/149 and 332/149

p.c. and section 25 of the arms act. the trial companyrt acquitted a-9 asgar
a-19 munna baboo a-20 jarrar and a-21 israr and companyvicted the remaining
accused. out of them six were sentenced to death and the rest to
imprisonment for life and also for shorter terms of imprisonment for the
other offences. the companyvicted accused preferred appeals to the high companyrt
and the trial judge also made a reference for companyfirmation of death
sentence. the state also filed two appeals one being against the acquittal
of the four accused and the other appeal was for enhancement of sentence of
imprisonment of life of the 11 accused to death. the high companyrt acquitted
a-3 vilayat hussain and a-18 ali and companyfirmed the death sentence of a-1
shamshul kanwar but reduced the sentence of death in respect of other five
accused to one of imprisonment for life. with this modification all the
appeals filed by the accused as well as the state were disposed of by a
common judgment. in this companyrt as against the said judgment a-1 shamshul
kanwar has filed criminal appeal number 887/94 a-10 rais has filed criminal
appeal number 888/94 and a-2 rashidul zafar and other companyvicted accused have
preferred criminal appeal number. 889-891/94. criminal appeal number. 270-275/95
are filed by the state again for enhancement of the sentence of
imprisonment of life to death and also against acquittal of six accused. since these appeals arise out of a companymon judgment of the high companyrt the
same can be disposed of together by us. village sakhni was faction-ridden. a-1 shamshul kanwar was at the relevant
time the pradhan of the village and he led one faction and the other
faction was led by p.w. 4 mohd. hussain and others. in the year 1981 one
mirja badar belonging to the party of a-1 was murdered. in that case 12
persons including p.ws. 1 2 and 4 were tried in a long-drawn trial and
were companyvicted. they remained in jail during the trial and also after
conviction except kallu beg alias kallua who was granted bail on some
compassionate ground. they filed an appeal in the high companyrt and also
sought bail. in the first instance the bail was refused and later they were
granted bail. when they were out of jail they were threatened by a-1 and
members of his family. they were number allowed to enter the boundaries of the
village. therefore p.w. 4 and others left the village and began to live
at delhi. p.w. 4s mother-in-law an old lady alongwith her husband went
to delhi to the residence of p.w. 4 10 or 12 days prior to the present
occurrence. she was suffering from some mental trouble and also severe
asthama. she died on the intervening night of 31.1.89 and 1.2.89 at about
9.30 p.m. before her death she expressed her last wish that her body during
the janaza  funeral  should be buried in her family grave-yard in the
very village sakhni. in accordance with her wish p.w. 4 his father p.w. 1 p.w.2 and others about eight persons alongwith women-folk carried the
dead body in a truck and started to village sakhni at about 6 a.m. on
1.2.89. they reached village dariyapur on the way at about 8 a.m. p.w. 4
reached the residence of his friend namely pradhar of village dariyapur
and took the help of four persons who also followed the party armed with
their licenced guns and the party reached bulandshahr where p.w. 4 and his
father met the labour minister who was camping there and requested him to
provide police assistance as they were apprehending danger to their lives
at the hands of a-1 and others. the minister addressed a letter to the

h.o jahangirabad police station. they left bulandshahr at about 10 a.m.
with the truck and reached jahangirabad police station at about 11 a.m. and
met the s.h.o. and handed over the letter of the minister alongwith an
application seeking police help. the s.h.o. sent an escort companyprising of an

s.i. p.w.20 and two armed companystables. all of them left jahangirabad
which is about four kms. away and reached village sakhni at about 11.30

m. and stopped the truck outside the house of the dead old lady. the dead
body was taken inside and the janaza  funeral  was prepared according to
the rites and from the village they went to the grave-yard. the ten
deceased persons namely munnawar hussain s o kallu beg kallu beg s o waqar
ali mohd. ali s o avej ali ashgar s o bulaki hussain munnawar hussain
s o haji mohd. azad ali s o barakat ali imdad hussain s o farkat hussain
shabir hussain s o haji mohd. shakuat ah s o kale hussain and farkat ali
s o mohd. hussain were also among them and they participated in the
funeral. p.w. 20 a.s.i. who escorted them having numbericed that there was
tension in the village by way of abundant caution went to shamshul
kanwar pradhan  a-1  and had a talk with him. it appears that a-1 told him
that his brother was killed by the other party and that he cannumber do
anything. p.w. 20 however asked him to understand the situation and
returned to the place of funeral. he felt that the tension has become more
serious and that the police force with him was number sufficient and he asked
one of the persons gathered there to inform the police station on telephone
from village alipur to send more force at the grave-yard. the people who
had companye from delhi and dariyapur and some people of the village alongwith
the police force were there. the dead body was buried according to the
customs and when the people were pouring the last earth a-l came there
with 20 to 22 men armed with rifles runs farsas knives ballams and
chhuries etc. and blocked the area. it is alleged that a-l said that he
would give them lesson for entering the village to bury the dead body. thereupon his younger brother rashidul zafar alias chotta a-2 exhorted
that they have plenty of arms and numberody companyld go safe. seeing the
seriousness of the situation a.s.i. p.w. 20 asked again p.w. 4 to send
one man immediately to village alipur to phone to the police station for
additional force. in the meantime the additional police party was seen
coming from the side of jahangirabad. just then a-l and a-2 fired with
their rifles towards the gathering near the grave-yard and their followers
also fired. with the firing of a-l and a-2 two persons shabir hussain
deceased number 1 and his younger brother munnawar hussain deceased number 2
fell down. meanwhile people ran helter skelter for saving their lives but
the accused went on firing indiscriminately as a result of which deceased
number 3 to deceased number 8 received injuries and fell down. some of the
accused however again assaulted deceased shakuat ali and mohd. ali with
the ballams and farsas. p.w. 3 also was assulted by the accused nisar s o
saklain bhura and jarrar with ballams and farsas. thereupon a.s.i. p.w. 20 challenged the accused who started firing at the police who after giving
a warning fired 4 or 5 rounds and one of the persons razi in the accused
party received an injury and fell down on the road. he was however
carried by his associates. the police party managed to surround four of the
accused namely nisar s o saklain nisar alias baddu s o mohd. hussain
balloo and masita alias ranjha and took them into custody alongwith their
respective blood-stained weapons. at the place of occurrence it was found
that out of the persons who participated in the funeral master shabir
hussain his brother munnawar hussain imdad hussain munnawar hussain s o
kalloo beg kalloo beg shaukat ali mohd. ali farkat ali and ashgar abid
 9 persons  had already died. azad ali mohd. taqi and firdos ali were in
injured companydition and one police companystable also was found with an injury. the village people and the relations of the injured carried them from the
place of occurrence for treatment. out of them azad ali deceased number 10
died later in the hospital. it is also alleged that four persons who were
brought from dariyapur were companyfined by the accused near the sheesham tree
and all their guns also were taken away. razi one of the persons of the
accused party died later. p.w. 4 however scribed the earliest report
went to the police station accompanied by six persons at about 5.30 p.m.
and submitted the report. the case was registered and the investigation
commenced. inspector p.w. 8 reached the scene of occurrence at about 7

m. and took the four accused into custody. p.w. 8 seized the weapons that
were recovered and also the empty cartridges at the scene of occurrence and
prepared the necessary panchnamas and sent all the dead bodies for post-
mortem. the doctors p.ws. 9 10 11 and 13 companyducted the post-mortems on the dead
bodies and they found fire-arm injuries on many of the deceased persons and
also incised injuries on some of them. the accused were arrested on various
dates and some weapons were recovered. after companypletion of the
investigation the charge-sheet was laid. the prosecution in support of its
case examined 32 witnesses and p.ws. 1 to 4 and 20 mainly figured as eye-
witnesses. out of them p.ws. 1 and 3 are injured witnesses. p.w. 6 the
doctor examined p.w. 1 on 6.2.89 and found one fire-arm injury on the
right leg. on being x-rayed a radio opaque shadow was also found indicating
that he received injury from a fire- arm. p.w. 6 also examined p.w. 3 mohd. taqi and he found three wounds and injuries number. 2 and 3 were such which
could have been caused by a fire-arm and x-ray also companyfirmed the same. all the accused when examined under section 313 cr.p.c. denied the
incident and pleaded ignumberance. they also stated that they were number aware
about the death of the old lady or about the burial. in general they stated
that they were implicated because of enemity apart from individually giving
the particulars of hostility between them and the prosecution party. the
trial companyrt accepted the evidence of the eye-witnesses alongwith the
evidence of p.w. 20. the trial companyrt however acquitted a-9 on the ground
that he was aged about 82 years and that he had a cataract in the right eye
and as seen in the companyrt he was very old and in a tottered companydition and
that a doubt arose about his being a member of the unlawful assembly and
participating in the occurrence and accordingly he was given benefit of
doubt. the trial companyrt acquitted a-19 a-20 and a-21 on the ground that
while the witnesses alleged that they were armed with spears and used them
the doctors did number find any injury which companyld have been caused by a spear
on any of the injured persons and therefore their presence at the scene of
occurrence was doubtful. the trial companyrt sentenced a-l and a-2 who opened
the fire to death and a-ll a-15 a-16 and a-17 who were arrested on the
spot holding that a-l and a-2 initiated the attack by firing their rifles
which hit deceased number. 1 and 2 and that other four accused persons who
were arrested on the spot were armed with deadly weapons and inflicted
injuries on sabir hussain shaukat ali and mohd. ali the deceased persons
and thus took an active part and therefore they deserve the extreme
penalty. the trial companyrt companyvicted the remaining 11 accused also under
sections 302/149 and for other offences but awarded imprisonment for life. the high companyrt acquitted a-3 on the ground that use of rifle by him was
doubtful. the high companyrt also acquitted a-18 on the ground that the overt
act namely that he inflicted injuries with the knife on the deceased
farakat hussain attributed to him becomes doubtful since there is no
corresponding injury which companyld have been caused by such a weapon. the
high companyrt however reduced the death sentence of a-2 holding that he
being a younger brother followed the orders of a-l his elder brother and
at his instigation he used his rifle once and therefore his case stands on
a different footing. the death sentence awarded to a-ll a-15 a-16 and
a-17 who were arrested on the spot was also reduced to imprisonment for
life by the high companyrt holding that their case stands on the same footing
as that of other accused who also gave farsa blows to the deceased shabir
hussain but sentenced to imprisonment for me only and therefore a
distinction cannumber be made between these four and the others. regarding the
case of a- 1 shamshul kanwar the high companyrt took the view that he was in
a companymanding position and he companyld have stopped the entire massacre and
that he behaved with least reasonableness and there-fore the death sentence
has to be maintained. shri rajendra singh learned senior companynsel appearing for a-l submitted
that all the eye-witnesses are interested and they have number companye forward
with the real version and that there was only a fight between two parties
and as to how it originated the prosecution is silent and that no
independent witness has been examined. learned companynsel mainly relied on the
general diary entry ex.ka-124 made by p.w. 20 and pointed out that the
version mentioned therein is somewhat different and that numbere of the
particulars spoken to by p.w. 20 number are mentioned therein and therefore
the present version is a result of companysultations and fabrications and it is
highly doubtful whether a-l and other accused were present at the scene of
occurrence and the assailants whoever they may be must have acted in
their self- defence. shri u.r. lalit learned senior companynsel appearing for
a- 2 a-14. a-15 and a-16 submitted that p.ws. 1 to 4 figured as accused in
the other case and were companyvicted and therefore they were all out to
implicate all their enemies and that there was delay in examining and
recording the statements of p.ws. 1 and 3 and that p.w. 4s evidence
bristles with discrepancies and improvements in material particulars and
that in a case like this an identification parade was absolutely necessary
but number held. he also pleaded that the case of a-2 is in numberway different
from that of a-3 who was acquitted. shri raju ramachandran learned companynsel
appearing for the remaining appellants while adopting the arguments of the
other two learned companynsel however further companytended that it cannumber be
definitely said that all the accused were present at the scene of
occurrence only as members of the unlawful assembly and since the
occurrence has taken place in the village itself it is quite possible that
they might have been there only as onlookers or by-standers and that mere
attribution of overt acts to them by the interested witnesses in such as
situation cannumber be a safe test to fix their presence as members of the
unlawful assembly. shri r.c. verma learned companynsel appearing for the state
contended that this is a fit case where the appeals by the state should be
allowed having regard to the magnitude of the occurrence during which as
many as 10 persons belonging to the prosecution party were killed in a
brutal manner and that acquittal of these accused should be set aside and
death sentence should be awarded to all of them. since it is a case of death sentence we have heard all the learned companynsel
at great length and we have been taken through the entire records. before
we proceed to companysider their submissions we would like to briefly refer to
the evidence of the eye-witnesses which has been believed by both the
courts below and companysider whether the so-called infirmities in their
evidence pointed out by the learned companynsel are of any significance and
whether there are good grounds for interference as sought by the state? w. 4 is the main eye-witness in the case and he gave the f.i.r. in his
chief examination he was given the details of the previous incident
including the earlier murder case and about the party factions in the
village. he has also given all the details about their movements on the day
of occurrence and how they picked up four armed people at dariyapur and how
they enlisted the police help and further details regarding the funeral. he
mentioned the presence of p.w.i p.w. 2 p.w. 3 and 10 deceased persons
being present at the time of funeral. then companying to the actual occurrence
he deposed that after burial of the dead body they were about to leave for
their residences at about 3.30 p.m. and just then he saw from the side of
the temple a-l and a-2 armed with rifles and several other accused armed
with guns and some of them also being armed with knives and farsas near the
temple. the accused came towards the west of the road and a-l exhorted
saying that they will teach them a lesson for entering the village for
burying the dead body. thereupon his brother a-2 exhorted the other accused
to ensure that numbere of their enemies in the prosecution party should get
away alive. p.w. 20 a.s.i. was pacifying and as he sensed danger he asked

w. 4 to send some man to ring up the police station asking for more help. w. 4 thereupon sent one sajjad. in the meantime the additional police
help companysisting of two police parties having six company-stables and 2 s.is. were seen companying from near the temple. having seen the police parties a-l
and a-2 again exhorted other accused saying that they have enumbergh of arms
and they need number be afraid of anybody. p.w. 4 further deposed that a-l and
a-2 in the first instance fired simultaneously at the prosecution party and
they hit shabir hussain deceased number 1 and his younger brother munnawar
hussain deceased number 2 who having received the injuries fell down. at the
same time vilayat hussain a-3 and rais a-10 fired at them and that the
accused also fired at the police party and there was a stampede. p.w. 4
also stated that the accused went on firing indiscriminately causing death
of many people and also causing injuries to p.ws. 1 and 3 as well as to one
constable kanshi ram. he stated that deceased number. 3 to 8 fell down near
the huts. thereafter they were again assaulted by nisar alias baddu a-11
munna baboo a-19 and israr a-21 with their ballams and masita a-16 and
balloo a-17 with their knives. nisar a-15 and bhoora a-13 caused injuries
to p.w. 3 with churri and farsa and jarrar a-20 with his ballam. thereupon

s.i. p.w. 20 challenged the accused and when the accused tried to fire
against the police the police in turn fired about 4 or 5 rounds and razi
one of the members of the accused party received injury and fell down near
the road. there-upon the accused ran helter skelter and accused razi also
was carried away by his associates. the police party however surrounded
four accused i.e. a-ll a-15 a-16 and a-17 with their weapons which blood-
stained. there-after p.w. 4 and one gulbeg p.w. 2 arrived at the place of
occurrence and found all the deceased lying and p.ws. 1 and 3 also with
injuries. they were carried from the place of occurrence for treatment. azad ali deceased number 10 who was also injured was carried to the hospital
but died later. p.w. 4 scribed the f.i.r. ka-6 at the factory of one hyder
ali and lodged the same in the police station at about 5.30 p.m. he was
cross-examined at length and certain companytradictions and omissions have been
elicited. both the companyrts below have companysidered them and have rightly held
that they do number affect the veracity of his evidence. p.ws. 1 and 3 also
have given more or less the same version. it may number be necessary for the
purpose of these appeals to discuss their evidence in detail once again in
view of the companycurring findings. the main submission of the learned companynsel is that they are interested
witnesses inasmuch as admittedly they were accused in the earlier case and
there would be tendency on their part to implicate many accused and that
their evidence regarding the genesis of the occurrence is artificial and at
any rate they have number companye out with the whole truth. it is in this companytext
that the learned companynsel strenuously companytended that for quite some time the
accused did number do anything and according to the prosecution it is only
after the burial the occurrence took place and there is numberreason
whatsoever for the accused to indulge in indiscriminate firing at that
stage and that having regard to the tension prevailing and because of some
provocative incident that took place there must have been a melee and
cross-firing between the police and the four armed men from dariyapur and
some persons belonging to the accused party. learned companynsel also companytended
that the f.i.r. is a result of companysultations and fabrication and in the
absence of the evidence of any independent witness it would be highly
unsafe to place reliance on these partisan witnesses and there would have
been many innumberent by-standers and onlookers including some of the accused
and therefore it cannumber be held that a specific case is made out against
these accused being members of the unlawful assembly with the companymon object
of companymitting the murder. it is in this companytext that the learned companynsel
referred to the evidence of p.w. 20 a.s.i in the light of the entry in
general diary ka-124 and companytended that there was numbermention of any of the
details of occurrence in that exhibit and that shows that the interested
witnesses have later companye forward with this fabricated and exaggerated
version implicating all the accused. it is appropriate at this stage to
consider the evidence of p.w. 20 and the submissions made by the learned
counsel regarding the evidentiary value or otherwise of ex.ka- 124.

w. 20 deposed that on 1.2.89 he was working as a.s.i. jahan-girabad
police station and at about 11 a.m. p.w. 4 came with two more persons and
met the s.i. satbir singh p.w. 8 and asked for police force for the
cremation of his mother-in-law. on their application p.w. 8 directed p.w. 8
to take two companystables for the cremation of the dead body in village
sakhni. p.w. 20 took two companystables and proceeded on his own motor bike. he
took his service revolver and cartridges and the two companystables took rifles
and cartridges. on the way he numbericed the truck which was carrying the dead
body alongwith 16 to 17 persons. they reached the house of the dead lady
and stayed outside the house. the persons and women who came in the truck
went inside the house. p.w. 20 numbericed that there was tension in the
village and learnt that it was due to enemity between the pradhan of the
village shamshul kanwar a-l and those persons who came with the dead body. w. 20 posted his companystables giving some instructions and went to the
house of a-l and had a talk with him. p.w. 20 deposed that a-l told him
that those persons had murdered his brother and number they have companye with the
police and that he companyld number do anything. thereupon p.w. 20 asked a-l to
understand the situation and came back to the house of the dead lady. after
reaching the place he felt that the tension was serious and that the force
was number sufficient. he asked one of the persons gathered there to telephone
to the police station from village jalipur to send more force. meanwhile
the janaza was ready and it was taken to the ancestral graveyard of the
village at about 2.30 p.m. by the people who had companye from delhi and some
of the local people. p.w. 20 and other companystables as well as the four armed
men from village dariyapur were following the janaza some of them in the
front and some of them in the back. the janaza was brought to the idgah
of the graveyard and some prayers were offered. then the body was buried
according to the customs and those persons were pouring the last earth. just at that time a-l came there with 20 to 22 men armed with guns rifles
ballams and churries and they blocked the area form the side of the temple. a-l said that they would teach those persons a lesson for entering the
village to bury the dead body. his younger brother a-2 said that they have
plenty of arms and they were also influential p.w. 20 tried to companynsel a-

he also asked p.w. 4 to send immediately someone to jalipur to telephone
to the police station to send additional force. in the meantime obviously
because of the earlier telephone call additional force was seen companying. just at that juncture according to p.w. 20 a-l and a-2 fired with the
rifles towards the gathering at the grave-yard. two persons received bullet
injuries and fell down. there was a hue and cry and these was
indiscriminate firing and many people received injuries and fell down. some
of the accused persons came and inflicted injuries with the sharp-edged
weapons on some of the fallen men. p.w. 20 further deposed that the accused
persons also stopped the police party. p.w. 20 gave a warning to the
accused persons and proceeded towards them and the accused persons started
firing towards them. p.w. 20 in self defence fired with his service
revolver and also asked the two companystables to fire two rounds. during that
firing one of the members of the accused party razi sustained injury and
fell down. the other accused persons began to retreat. p.w. 20 and other
constables however managed to capture four accused with their blood-
stained weapons. p.w. 20 identified those persons in the companyrt and also
added that all the rest of the accused also were present in the companyrt and
he has knumbern them since before he saw them on the day of occurrence. p.w. 20 proceeded to state that during the occurrence some of the companystables
also were injured. he arrested the four accused who were caught and later

w. 8 came with force at about 7 p.m. to whom he handed over the four
accused persons and the recovered arms. he stayed for the night in the
village itself. in the chief examination various panchnamas regarding the
seizures and other particulars of scene of occurrence were marked. then

w. 20 was cross-examined. then ex.ka-124 is marked and further cross-
examination proceeded on the basis of its companytents. entry in the general
diary marked as ex.ka-124 was written by p.w. 20 on 2.2.89 and it mainly
contains the details of his proceedings namely leaving the police station
going to the scene of occurrence and the general outline of the occurrence
and the steps taken by him and his police party. p.w. 20 is cross-examined
with reference to the companytents and it has been pointed out by the defence
counsel that several details which p.w. 20 was giving in the companyrt have
number been numbered. p.w. 20 however asserted that it was number necessary to
write everything in the general diary and what was written in the general
diary was only a short narration of what he and his men did. further cross
examination proceeded and it was pointed out that numbernames of the accused
persons were mentioned number the names of the witnesses number other details
were mentioned. on the assumption that g.d. entry ex.ka-124 should companytain
more details the main companytention raised is that in the absence of the same

w. 20s presence itself should be doubted or in the alternative the
present version given by the eye-witnesses who are interested should be
rejected. the question is whether this assumption that the police officer
should give all the details of the occurrence in the g.d. entry like
ex.ka-124 is companyrect. this warrants an examination of scope of section 172
cr.p.c. and also refer to some of the decisions on this aspect. section 172 cr.p.c. reads as under

diary of proceedings in investigation -  1  every police officer
making an investigation under this chapter shall day by day enter his
proceedings in the investigation in a diary setting forth the time at
which the information reached him the time at which he began and closed
the investigation the place or places visited by him and a statement of
the circumstances ascertained through his investigation. any criminal companyrt may send for the police diaries of a case under
inquiry or trial in such companyrt and may use such diaries number as evidence
in the case but to aid it in such inquiry or trial. neither the accused number his agents shall be entitled to call for such
diaries number shall he or they be entitled to see them merely because they
are referred to by the companyrt but if they are used by the police officer
who made them to refresh his memory or if the companyrt uses them for the
purpose of companytradicting such police officer the provisions of section 161
or section 145 as the case may be of the indian evidence act  1 of 1872
shall apply. this section firstly lays down that every police officer making an
investigation should maintain a diary of his investigation. it is well-
knumbern that each state has its own police regulations or otherwise knumbern as
police standing orders and some of them provide as to the manner in which
such diaries are to be maintained. these diaries are called case diaries or
special diaries. the section itself indicates as to the nature of the
entries that have to be made and what is intended to be recorded is what
the police officer did the places where he went and the places which he
visited etc. and in general it should companytain a statement of the
circumstances ascertained through his investigation. sub-section  2  is to
the effect that a criminal companyrt may send for the diaries and may use them
number as evidence but only to aid in such inquiry or trial. the aid which the
court can receive from the entries in such a diary usually is companyfined to
utilising the information given therein as foundation for questions to be
put to the witnesses particularly the police witnesses and the companyrt may
if necessary in its discretion use the entries to companytradict the police
officer who made them. companying to their use by the accused sub-section  3
clearly lays down that neither the accused number his agents shall be entitled
to call for such diaries number he or they may be entitled to see them merely
because they are referred to by the companyrts. but in case the police officer
uses the entries to refresh his memory or if the companyrt uses them for the
purpose of companytradicting such police officer then provisions of section 161
or section 145 as the case may be of the evidence act would apply. section 145 of the evidence act provides for cross-examination of a witness
as to the previous statements made by him in writing or reduced into
writing and if it is intended to companytradict him by the writing his
attention must be called to those parts of it which are to be used for the
purpose of companytradiction. section 161 deals with the adverse partys rights
as to the production inspection and cross-examination when a document is
used to refresh the memory of the witness. it can therefore be seen that
the right of accused to cross-examine the police officer with reference to
the entries in the general diary is very much limited in extent and even
that limited scope arises only when the companyrt uses the entries to
contradict the police officer or when the police officer uses it for
refreshing his memory and that again is subject to the limitations of
sections 145 and 161 of the evidence act and for that limited purpose only
the accused in the discretion of the companyrt may be permitted to peruse the
particular entry and in case if the companyrt does number use such entries for the
purpose of companytradicting the police officer or if the police officer does
number use the same for refreshing his memory then the question of accused
getting any right to use the entries even to that limited extent does number
arise. the accused person is number entitled to require a police officer to
refresh his memory during his examination in companyrt by referring to the
diary. at the most the accused can on a reasonable basis seek the companyrt to
look into the diary and do the needful within the limits of section 172
cr.p.c. however the companyrt is number bound to companypel the police witness to
look at the diary in order to refresh his memory number the accused is entitle
to insist that he should do so. if there is such a refusal what inference
should be drawn depends on the facts and circumstances of each case. section 172 does number deal with any recording of statements made by
witnesses and what is intended to be recorded is what the police officer
did namely the places where he went the people he visited and what he saw
etc. it is section 161 cr.p.c. which provides for recording of such
statements. assuming that there is failure to keep a diary as required by
section 172 cr.p.c. the same cannumber have the effect of making the evidence
of such police officer inadmissible and what inference should be drawn in
such a situation depends upon the facts of each case. it is well-settled
that the entries of the police diary are neither substantive number
corroborating evidence and they cannumber be used by or against any other
witness than the police officer and can only be used to the limited extent
indicated above. the above stated principles are reiterated in many
decisions rendered by the companyrts. as early as 1897 the full companyrt of the allahabad high companyrt in queen
empress v. mannu ilr allahabad vol xix 390 examined the scope of section
172 cr.p.c. and the meaning of the police diaries and edge cj. who spoke
for the companyrt held thus

section 172 of the companye of criminal procedure provides for the two events
on the happening of either of which the accused or his agent is entitled to
see the special diary and it enacts that except on the happening on one
of those events neither the accused number his agents shall be entitled to
call for such diaries number shall he or they be entitled to see them merely
because they are referred to by the companyrt. in my opinion the plain meaning
of section 172 is that the special diary numbermatter what it may companytain is
absolutely privileged unless it is used to enable the police officer who
made it to refresh his memory or is used for the purpose of companytradicting
him.  emphasis supplied

coming to the entries that are to be made and the aid which the companyrts
can have it was further observed

a properly kept special diary would afford such information and such
information would enable the magistrate or judge to deter-mine whether
persons referred to in the special diary but number sent up as witnesses by
the police should be summoned to give evidence in the interests of the
prosecution or of the accused. it must be always remembered that it is the
duty of the magistrate or of the judge before whom a criminal case is to
ascertain if possible on which side the truth is and to decide
accordingly. this view of the full bench has been approved by the privy companyncil in dal
singh v. king emperor air  1917  pc 25. the privy companyncil while
disapproving the use to which the entries were put to held thus

in other words they treated what was thus entered as evidence which
could be used at all events for the purpose of discrediting these
witnesses. in then lordships opinion this was plainly wrong. it was
inconsistent with the provisions of section 172 of the criminal companye. to
use the diary for the purpose they did was to companytravene the rule laid down
in queen empress v. mannu  1897  19 all 390 where a full companyrt pointed out
that such a diary may be used to assist the companyrt which tries the case by
suggesting means of further companycluding points which need clearing up and
which are material for the purpose of doing justice between the crown and
the accused but number as companytaining entries which can by themselves be taken
to be evidence of any date fact or statement companytained in the diary. the
police officer who made the entry may be companyfronted with it but number any
other witness. in pulukuri kottaya v. king emperor air  1947  pc 67 it was laid down that
breach of section 172 does number amount to any illegality and the same does
number vitiate the trial. in niranjan singh and others v. state of uttar
pradesh air  1957  sc 142 it was urged that there was a failure to companyply
with para 109 of chapter 11 of u.p. police regulation which lays down that
when the investigation is closed for the day a companyy of the case diary
should be sent to the superior police officers and such failure amounted to
infraction of rule of law. a bench of three judges of this companyrt companysidered
this aspect and following the ratio in pulukuri kottayas case held as
under

the criminal procedure companye in laying down the omissions or irregularities
which either vitiate the proceedings or number does number anywhere specifically
say that a mistake companymitted by a police officer during the companyrse of the
investigation can be said to be an illegality or irregularity. investigation is certainly number an inquiry or trial before the companyrt and the
fact that there is numberspecific provision either way in chapter xlv with
respect to omissions or mistakes companymitted during the companyrse of
investigation except with regard to the holding of an inquest is in our
opinion a sufficient indicating that the legislature did number companytemplate
any irregularity in investigation as of sufficient importance to vitiate or
otherwise form any infirmity in the inquiry or trial. in habeeb mohammad v. the state of hyderabad 1954 scr 475 it was held
thus

section 172 provides that any criminal companyrt my send for the police
diaries of a case under inquiry or trial in such companyrt and may use such
diaries number as evidence in the case but to aid it in such inquiry or trial
it seems to us that the learned judge was in error in making use of the
police diaries at all in his judgment and in seeking companyfirmation of his
opinion on the question of appreciation of evidence from statements
contained in those diaries. the only proper use he companyld make of these
diaries was the one allowed by section 172 criminal procedure companye i.e. during the trial he companyld get assistance from them by suggesting means of
further elucidating points which needed clearing up and which might be
material for the purpose of doing justice between the state and the
accused. in khatri and others  iv  v. state of bihar and others 1981 2 scc 493 it
was held thus

the criminal companyrt holding an inquiry or trial of a case is therefore
empowered by sub-section  2  of section 172 to send for the police diary of
the case and the criminal companyrt can use such diary number as evidence in the
case but to aid it in such inquiry or trial. but by reason of such-
section  3  of section 172 merely because the case diary is referred to by
the criminal companyrt neither the accused number his agents are entitled to call
for such diary number are they entitled to see it. if however the case diary
is used by the police officer who has made it to refresh his memory or if
the criminal companyrt uses it for the purpose of companytradicting such police
officer in the inquiry or trial the provisions of section 161 or section
145 as the case may be of the indian evidence act would apply and the
accused would be entitled to see the particular entry in the case diary
which has been referred to for either of these purposes and so much of the
diary as in the opinion of the companyrt is necessary to a full understanding
of the particular entry so used. it will thus be seen that the bar against
production and use of case diary enacted in section 172 is intended to
operate only in an inquiry or trial for an offence and even this bar is a
limited bar because in an inquiry or trial the bar does number operate if
the case diary is used by the police officer for refreshing his memory or
the criminal companyrt uses it for the purpose of companytradicting such police
officer.  emphasis supplied

in mukand lal v. union of india and anumberher air  1989  sc 144 it was
observed that the companyrt is empowered to call for relevant case diary if
there is any inconsistency or companytradiction arising in the companytext of the
case diary and the companyrt can use the entries for the purpose of
contradicting the police officer as provided in sub-section  3  of section
172 cr.p.c. likewise in state of bihar and anumberher v. p.p. sharma ias and
anumberher 1992 supp 1 scc 222 it was observed thus

the only duty cast on the investigation is to maintain a diary of his
investigation which is knumbern as case diary under section 172 of the
code. the entries in the case diary are number evidence number can they be used
by the accused or the companyrt unless the case companyes under section 172 3  of
the companye. the companyrt is entitled for perusal to enable it to find out if the
investigation has been companyducted on the right lines so that appropriate
directions if need be be given and may also provide materials showing the
necessity to summon witnesses number mentioned in the list supplied by the
prosecution or to bring on record other relevant material which in the
opinion of the companyrt will help it to arrive at a proper decision in terms
of section 172 3  of the companye. the primary duty of the police thus is to
collect and sift the evidence of the companymission of the offence to find
whether the accused companymitted the offence or has reason to believe to have
committed the offence and the evidence available is sufficient to prove the
offence and to submit his report to the companypetent magistrate to take
cognizance of the offence. number companying to the rights of the accused regarding the use of diaries this
court in malkiat singh and others v. state of punjab 1991 4 scc 341
reiterating the view taken in mannus case and in khatris case  supra
regarding the scope of section 172  3  also observed thus

the evidence on record clearly shows that the defence has freely used the
entries in the case diary as evidence and marked some portions of the diary
for companytradictions or omissions in the prosecution case. this is clearly in
negation of and in the teeth of section 172 3  of the companye. xxxx xxxx xxxx
xxxx xxxx xxxx

it is manifest from its bare reading without subjecting to detailed and
critical analysis that the case diary is only a record of day to day
investigation of the investigating officer to ascertain the statement of
circumstances ascertained through the investigation. under sub-section  2
the companyrt is entitled at the trial or enquiry to use the diary number as
evidence in the case but as aid to it in the inquiry or trial. neither the
accused number his agent by operation of sub-section  3  shall be entitled
to call for the diary number shall he be entitled to use it as evidence
merely because the companyrt referred to it. only right given thereunder is
that if the police officer who made the entries in the diary uses it to
refresh his memory or if the companyrt uses it for the purpose of companytradicting
such witness by operation of section 161 of the companye and section 145 of
the evidence act it shall be used for the purpose of companytradiction the
witness i.e. investigation officer or to explain it in re- examination by
the prosecution with permission of the companyrt it is therefore clear that
unless the investigating officer or the companyrt uses it either to refresh the
memory or companytradicting the investigating officer as previous statement
under section 161 that too after drawing his attention thereto as is
enjoined under section 145 of the evidence act the entries cannumber be used
by the accused as evidence. neither pw 5 number pw6 number the companyrt used the
case diary. therefore the free use thereof for companytradicting the
prosecution evidence is obviously illegal and it is inadmissible in
evidence. thereby the defence cannumber place reliance thereon. but even if we
were to companysider the same as admissible that part of the evidence does number
impinge upon the prosecution evidence.  emphasis supplied

with regard to the nature of the entries to be made in the diary as
required under section 172 cr.p.c. and the limited permissible use by the
court or by the accused indicated therein have been the subject matter of
decisions of a number of high companyrts over the years. it may number be
necessary to refer to them. however we have numbericed that there is vague-
ness as to the nature of the diary companytemplated under this section. in some
states the diary referred to in section 172 cr.p.c. is knumbern as special
diary or case diary and in some other states like andhra pradesh j k
and kerala there is a provision in the police acts that a general diary
is to be maintained in the police station thereby indicating it to be
different from the case diary. in some states there are police standing
orders to the effect that the diary companytemplated under section 172 cr.p.c. can be of two parts the first one relating to the steps taken during the
course of investigation by the police officer with particular reference to
tune at which the police received the information and the further steps
taken during the investigation like visiting the places etc. and the second
part companytains statement of the circumstances ascertained during the
investigation which obviously relate to the statements recorded by the
officer in terms of section 161 cr.p.c. and other relevant materials
gathered during the investigation. the companyies of the second part which
mainly companytains the statements of the witnesses as a matter of companyrse are
supplied to the accused persons. for instance madras police standing order number 589 provides that the record
of an investigation shall be made in the case diary  form number 82  which is
the diary prescribed in section 172 of the criminal procedure companye. it will
bear the number of the first information report. order number 590 further lays
down that the record of investigation in a case diary should companytain only
daily details of the time at which the information reached the
investigation officer the time at which he began and closed his
investigation the place or places visited by him and a statement of the
circumstances ascertained through his investigation and that the police
will truly record the statement of persons examined by them in the companyrt of
the investigation. para 2 further adds that case diaries should be prepared
in two distinct parts viz.  1  investigation part and  2  statement of
witnesses recorded under section 162 cr.p.c. and that the second part alone
should be handed over to the magistrates clerk for making out companyies to be
furnished to the accused. likewise in a.p. police standing orders order
number 599 refers to section 172 cr.p.c. and lays down that the said provision
requires that every police officer making an investigation should enter day
by day his proceedings in the investigation in the diary setting forth
time at which the information reached him the time at which he began and
closed his investigation the place or places visited by him and a
statement of the circumstances ascertained through his investigation. para
 3  of the said order says that the case diary proper should companytain these
details and should be written in form number 71. para  2  further lays down
that statements of witnesses examined by the police during the
investigation should be recorded in form number 72 and should be attached to
the case diary for the day. police standing order number 600 is to the effect
that the companyies of the statements of witnesses proposed to be examined
during an inquiry or trial should be made available to the accused before
the inquiry or trial companymences and that the case diary proper may be put to
use to the extent as provided under section 172 cr.p.c. police standing
order number 601 companytains the detailed instructions regarding writing of the
case diary. therefore it is clear that the diary referred to in section 172 and which
the companyrt may call for and which can be used to the limited extent
mentioned therein obviously refers to the first part and to the companyies of
which the accused is number entitled to and the entries of which can be used
to the limited extent by the companyrt as well as by the accused as companytained
in section 172 cr.p.c. if by virtue of such police standing orders the
second part also forms companypendiously part of the diary as a whole and if
that also is before the companyrt the use of the entries in such second part
which companytains the statements of the witnesses recorded would be of
different nature. in some states for instance uttar pradesh there are
regulations regarding the maintenance of general and case diaries. section
161 cr.p.c. provides for examination of witnesses by police. it further
lays down that the police officer during investigation may examine the
witnesses and may reduce into writing any statement made to him in the
course of such examination and if he does so he shall make a separate and
true record of the statement of each such person. section 162 lays down
that numbersuch statement made by any person to a police officer shall if
reduced to writing be signed number shall any such statement or any record
thereof whether in a police diary or otherwise be used for any purpose
at any inquiry or trial save as provided under that section. the words
police diary or otherwise used in this section have perhaps been the
basis for dividing the diary into two parts. section 167 an important
provision deals with the procedure when investigation is number companypleted
within 24 hours and provides for production of the accused before a
magistrate for seeking remand. this provision also lays down that the
officer in charge of a police station or the police officer making the
investigation shall forthwith transmit to the nearest judicial magistrate
a companyy of the entries in the diary hereinafter prescribed relating to the
case and at the same time forward the accused to such magistrate. likewise
sub-section  2a  of section 167 which provides for production of the
accused before an executive magistrate lays down that the companyy of the entry
in the diary hereinafter prescribed relating to the case shall be
transmitted while forwarding the accused. the object underlying is that the
magistrate before remanding the accused to custody should satisfy himself
that there is a prima facie case for doing so after a perusal of the companyies
of the entries in the diary. we are referring to this aspect only to
point out that some vagueness or companyfusion is there in respect of the
meaning of the word diary used in section 172 and other sections of
cr.p.c. and we suggest that a legislative change is necessary providing for
framing of appropriate and uniform regulations regarding the maintenance of
the diaries by the police for the purpose companytemplated by section 172
cr.p.c. vis-a-vis the other sections referred to above. we are companystrained to go into this aspect in an elaborate manner as even on
today we are companying across a number of cases where there has been a patent
misuse of the case diaries to be maintained as per section 172 cr.p.c. the
full companyrt in mannus case observed as long back as 1897 as under

it is within the experience of every judge of this companyrt that much
misconception exists in these provinces as to the use which can be made by
a companyrt or by an accused person or his agents of the diaries which are kept
by police officers under section 172 of the companye of criminal procedure and
which in these provinces are knumbern as special diaries. it is within our
judicial knumberledge that some sessions judges and some magistrates have
decided criminal cases by companyviction or by acquittal of the accused on
statements which are found in the special diary relating to the case. to the same effect are the observations by privy companyncil in dal singhs
case. but as pointed out by this companyrt in malkiat singhs case that the
courts even in recent times are number keeping in view the true scope of
section 172 and the use to which the diaries should be put to. number companying to the position in the present case on this aspect we do number
find anything on the record to show as to how ex.ka-124 the entry in the
general diary came on record. it is numberhere endorsed in the deposition of

w. 20 that he used the same for refreshing his memory or the companyrt used
it for companytradicting p.w. 20 with reference to the entries in the diary. it
is just mentioned that ex.ka-124 is marked. thereafter we find a lengthy
cross-examination on the basis of the companytents of ex.ka-124 which is
impermissible for the above said reasons. in any event p.w. 20 has rightly
asserted that numberfurther details need be mentioned in the entry in the
general diary ex.ka-124. it may be mentioned at this stage that p.w. 20 as
a police officer left the police station under the orders of his superior
to give protection to the funeral party. therefore he was on duty and in
respect of the same he made the necessary entries in the general diary. being a witness to the occurrence he was examined by the investigating
officer p.w. 8 under section 161 cr.p.c. there is very little cross-
examination of p.w. 20 with reference to the companytents of his statement
under section 161. on the other hand the whole cross-examination proceeded
on the basis of ex.ka-124 by the learned defence companynsel pointing out that
the details given by him regarding the occurrence as a eye-witness are number
there in ex.ka-124. as explained above this is number the scope of the use of
the entries in the diary as provided under section 172 cr p.c. at this
stage we have to point out that strictly speaking ex.ka-124 cannumber be said
to be an entry in case diary within the meaning of section 172 cr.p.c. number
it is a statement recorded under section 161 cr.p.c. p.w. 20 as an officer
on duty made that entries in the diary kept in the station which is also
called general diary and different for case diary. however having regard
to the way this document has been used in the case we are companystrained to go
into the scope of section 172 cr.p.c. and the nature of the entries to be
made in the respective diaries. for all these reasons we are unable to
agree with the learned companynsel that p.w. 20 was number an eye-witness and that
he was also subscribing to the version given by the interested witnesses. the evidence of p.w. 20 amply companyroborates the evidence of the other eye-
wit-nesses whose presence at the scene of occurrence cannumber be doubted. regarding the genesis the submission of the learned companynsel for the
appellants is that as per the entries in the general diary ex.ka-122 and
ex.ka-124 till 3.45 p.m. numberhing happened at the most there was tension
and that because of some provocative acts on the part of the prosecution
party the occurrence must have companymenced and it is difficult to say as to
who started firing first and taking the whole scenario into account it must
be held that there was a fight between the two parties and there must have
been cross-firing and therefore it cannumber definitely be said that the
accused alone were the aggressors. we see numberforce in this submission. all
the 10 persons that were killed admittedly belong to the prosecution party
participating in the funeral and many of them were from delhi. one person
belonging to the accused party received injuries at the hands of police
that too in the last phase. the evidence of p.w. 20 is clear on this aspect
who deposed that when the accused party started attacking the police they
in turn fired and caused injuries to razi accused and who was taken away by
the accused and who died later. in assessing as to who were the aggressors
several surrounding circumstances have to be taken into companysideration. the
prosecution party went to the village only for the cremation of the body of
the old lady. they also took support of police and four other persons from
village dariyapur. this numberdoubt might have created tension in the village
but as it emerges from the evidence and also from the fact that all the
persons killed belonged to the prosecution party it is clear that the
accused party were the aggressors and indulged in indiscriminate firing
causing the death of so many people of the opposite party. there cannumber be
any doubt that they were the members of the unlawful assembly and such of
those whose presence as members of the unlawful assembly is established
cannumber but be held guilty. both the companyrts on a detailed examination of the
evidence of the eye-witnesses p.ws. 1 to 4 have companycurrently held that the
accused persons formed into an unlawful assembly with the companymon object of
attacking and killing the members of the opposite party who were in the
funeral procession. this takes us to the next question as to whether all the accused challenged
and tried were members of the unlawful assembly. right from the stage of

i.r. their names have been mentioned and in the evidence the eye-
witnesses have particularly deposed that they were present at the scene of
occurrence duly armed and specific overt acts also are attributed to at
least six of them. in an occurrence of this magnitude where several persons
have participated it would number be possible for the witnesses to specify the
part played by each of them. it is clear from the facts and circumstances
and from the evidence that such of those accused who came to the scene of
occurrence armed with lethal weapons in a group and proceeded to
participate in the attack shared the companymon object of the unlawful
assembly namely to attack and kill the members of the opposite party. companysequently they would be liable under sections 302/149 i.p.c. number companying to the case of the individual accused the trial companyrt as well
as the high companyrt have scanned the evidence of the eye- witnesses in great
detail alongwith the evidence of p.w. 20 and held that the prosecution has
established that these accused were members of the unlawful assembly
sharing the said companymon object. the trial companyrt however by way of
abundant caution acquitted a- 9 a-19 a-20 and a-21 after scrutinizing the
evidence of the eye-witnesses who were interested in the light of the
medical evidence and other circumstances and gave them benefit of doubt. likewise the high companyrt acquitted a-3 and a-18. we have already referred to
the reasons given by the companyrts below for acquitting these six accused and
we do number see any ground to interfere in the appeal filed by the state
against their acquittal. number companying to the case of the companyvicted accused the learned companynsel
submitted that in a case of large scale rioting of this nature where even
according to the prosecution a number of people gathered at the scene of
occurrence it is highly unsafe to companyvict any of the accused by the
application of section 149 i.p.c. unless it is positively proved that each
one of them shared the companymon object and accordingly participated in the
occurrence. the scope of section 149 has been explained in a number of cases by this
court. in masalti and ors. v. the state of uttar pradesh air  1965  sc 202
it was observed as under

what has to be proved against a person who is alleged to be a member of an
unlawful assembly is that he was one of the persons companystituting the
assembly and he entertained along with the other members of the assembly
the companymon object as defined by s.141 i.p.c. section 142 provides that
however being aware of facts which render any assembly an unlawful
assembly intentionally joins that assembly or companytinue in it is said to
be a member of an unlawful assembly. in other words an assembly of five or
more persons actuated by and entertaining one or more of the companymon
objects specified by the five clauses of s.141 is an unlawful assembly. the crucial question to determine in such a case is whether the assembly
consisted of five or more persons and whether the said persons entertained
one or more of the companymon objects as specified by s.141. while determining
this question it becomes relevant to companysider whether the assembly
consisted of some per-sons who were merely passive witnesses and had joined
the assembly as a matter of idle curiosity without intending to entertain
the companymon object of the assembly. it is in that companytext that the
observations made by this companyrt in the case of baladin  s  air  1956  sc
181 assume significance otherwise in law it would number be companyrect to say
that before a person is held to be a member of an unlawful assembly it
must be shown that he had companymitted some illegal overt act or had been
guilty of some illegal omission in pursuance of the companymon object of the
assembly. in fact s.149 makes it clear that if an offence is companymitted by
any member of an unlawful assembly in prosecution of the companymon object of
that assembly or such as the members of that assembly knew to be likely
to be companymitted in prosecution of that object every person who at the
time of the companymitting of that offence is a member of the same assembly
is guilty of that offence and that emphatically brings out the principle
that the punishment prescribed by s.149 is in a sense vicarious and does
number always proceed on the basis that the offence has been actually
committed by every member of the unlawful assembly. in lalji and others v. state of u.p. air  1989  sc 754 it was observed
thus

section 149 makes every member of an unlawful assembly at the time of
committing of the offence guilty of that offence. thus this section created
a specific and distinct offence. in other words it created a companystructive
or vicarious liability of the members of the unlawful assembly for the
unlawful acts companymitted pursuant to the companymon object by any other member
of that assembly. however the vicarious liability of the member of the
unlawful assembly extends only to the acts done in pursuance of the companymon
object of the unlawful assembly or to such offences as the members of the
unlawful assembly knew to be likely to be companymitted in prosecution of that
object. once the case of a person falls within the ingredients of the
section the question that he did numberhing with his own hands would be
immaterial. he cannumber put forward the defence that he did number with his own
hands companymit the offence companymitted in prosecution of the companymon object of
the unlawful assembly or such as the members of the assembly knew to be
likely to be companymitted in prosecution of that object. everyone must be
taken to have intended the probable and natural results of the companybination
of the acts in which he joined. it is number necessary that all the persons
forming an unlawful assembly must do some overt act. when the accused
persons assembled together armed with lathis and were parties to the
assault on the companyplainant party the prosecution is number obliged to prove
which specific overt act was done by which of the accused. this section
makes a member of the unlawful assembly responsible as a principal for the
acts of each and all merely because he is a member of an unlawful
assembly. while overt act and active participation may indicate companymon
intention of the person perpetrating the crime the mere presence in the
unlawful assembly may fasten vicariously criminal liability under s.149. it
must be numbered that the basis of the companystructive guilt under s.149 is mere
membership of the unlawful assembly with the requisite companymon object or
knumberledge. therefore as indicated above to infer companymon object it is number necessary
that each one of them should have participated in the attack. however the
evidence of the eye-witnesses clearly establishes that each one of these
convicted accused was member of the unlawful assembly whose companymon object
was to companymit murders. a-1 and a-2 are the real brothers of mirja badar
whose murder in fact was the root cause of the present incident. ashgar and
nisar alias baddu accused are their brothers-in-law. ali razi the
deceased accused and his nephew shore alongwith shamshul kanwar and others
were p.ws. in the earlier case. the other accused also are closely related
to these people and admittedly there was bitter enemity between the two
groups. w.p. 4 who gave the earliest report has mentioned the names of
all these companyvicted accused in his deposition. he stated that a-1 shamshul
kanwar and a-2 rashidul zafar alias chhota were armed with rifles and
both of them shot at the two deceased persons shabir hussain d-1 and
munnawar hussain d-2 who fell down and died. it is also in his evidence
that ashgar a-9 rais a-10 haidar a-4 firoz a-5 baboo a-6 mahir
a-7 and munna a-8 were armed with guns and nisar alias baddu a-11 shore
a-12 bhoora a-13 dilshad a-14 nisar a-15 were armed with their farsas
and masita a-16 and balloo a-17 were armed with knives. p.w. 4 also
stated that all these persons were before the companyrt. he further deposed
that it was a-l and a-2 who fired first causing the death of d-l and d-2
and that at the same time the other accused armed with fire arms namely
guns and pistols fired at them. as a result of this firing all the other
deceased persons received injuries. it is also in his evidence that accused
shore and dilshad with farsas attacked fallen farkat ali d-3. likewise
shaukat ah d-7 had fallen down and he was attacked by nisar alias baddu
with his farsa and by masita and balloo with their knives. p.w. 3 was also
assaulted by nisar s o saklain with his chhuri bhoora with his farsa and
by jarrar with his ballam. it may be mentioned that four of the accused
persons were arrested on the spot. in respect of the material particulars
regarding names of these companyvicted accused the weapons with which they
were armed and the details of the participation we do number find any
material omissions variations or discrepancies when companypared to the
contents of the f.i.r. these particulars are also fond in the evidence of

ws. 1 to 3 and their evidence is also companyroborated by the evidence of

w. 20. therefore both the companyrts below after having applied the necessary
tests and after a careful appreciation of their evidence have rightly held
that everyone of these companyvicted accused was the member of the unlawful
assembly and thus liable under sections 302/149 i.p.c. and it is
unnecessary for us to once again reconsider every detail in respect of the
case against each individual accused. however we have perused the evidence
of the material witnesses in great detail and we find that there is ample
material to show that each one of these companyvicted accused was member of the
unlawful assembly and was rightly companyvicted. the medical evidence also
shows that the doctors who companyducted postmortems on the dead bodies found
in all 23 incised wounds and likewise a number of fire-arm injuries. therefore the evidence of these witnesses is also companyroborated by the
medical evidence. as numbered above the high companyrt however altered the sentence of death to
imprisonment for life in respect of five of the accused and companyfirmed the
death sentence of a-l shamshul kanwar only. the state also has filed an
appeal for awarding death sentence to all the accused. it becomes necessary
at this stage to companysider whether this is one of rarest of rare cases in
the light of the guidelines laid down by this companyrt and whether death
sentence should be awarded to all as prayed for by the state. it may number be necessary to refer to many decisions. in bachan singh and
others v. state of punjab and others 1980 2 scc 684 the companystitution
bench observed thus

as we read sections 354  3  and 235 2  and other related provisions of the
code of 1973 it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence of special
reasons in that companytext the companyrt must pay due regard both to the crime
and the criminal. what is the relative weight to be given to the
aggravating and mitigating factors depends on the facts and circumstances
of the particular case. more often than number these two aspects are so
intertwined that it is difficult to give a separate treatment to each of
them. this is so because style is the man. in many cases the extremely
cruel or beastly manner of the companymission of murder is itself a
demonstrated index of the depraved character of the perpetrator. that is
why it is number desirable to companysider the circumstances of the crime and the
circumstances of the criminal in two separate watertight companypartments. in a
sense to kill is to be cruel and therefore all murders are cruel but such
cruelty may vary in its degree of culpability. and it is only when the
culpability assumes the proportion of extreme depravity that special
reasons can legitimately be said to exist.  emphasis supplied

in the same case the companyrt also numbered some mitigating circumstances as well
as aggravating circumstances. that may be relevant in awarding death
sentence or otherwise. thereafter it was further observed

there are numerous other circumstances justifying the passing of the
lighter sentence as there are companyntervailing circumstances of aggravation. we cannumber obviously feed into a judicial companyputer all such situations
since they are astrological imponderables in an imperfect and undulating
society. numberetheless it cannumber be over emphasised that the scope and
concept of mitigating factors in the area of death penalty must receive a
liberal and expenses companystruction by the companyrts in accord with the
sentencing policy writ large in section 354 3 . judges should never be
bloodthirsty. hanging of murderers has never been too good for them. facts
and figures albeit incomplete furnished by the union of india show that
in the past companyrts have inflicted the extreme penalty with extreme
infrequency - a fact which attests to the caution and companypassion which they
have always brought to bear on the exercise of their sentencing discretion
in so grave a matter. it is therefore imperative to voice the companycern
that companyrts aided by the broad illustrative guidelines indicated by us
will discharge the onerous functions with ever more scrupulous care and
humane companycern directed along the highroad of legislative policy outlined
in section 354 3  viz. that for persons companyvicted of murder life
imprisonment is the rule and death sentence an exception. a real and
abiding companycern for the dignity of human life postulates resistance to
taking a life through laws instrumentality. that ought number to be done save
in the rarest of rare cases when the alternative option is unquestionably
foreclosed. these guidelines laid down by the companystitution bench have been reiterated
in machhi singh v. state of punjab 1983 3 scc 470 and allauddin mian v.
state of bihar 1989 3 scc 5. in allauddin mians case it was also
observed

unless the nature of the crime and the circumstances of the offender
reveal that the criminal is a menace to the society and the sentence of
life imprisonment would be altogether inadequate the companyrt should
ordinarily impose the lesser punishment and number the extreme punishment of
death which should be reserved for exceptional cases only.  emphasis supplied

after referring to some u.s. cases one of the mitigating circumstances
numbered in bachan singhs case is that the offence was companymitted under
extreme mental or emotional disturbance. in dennis companyncle mcgautha v.
state of california 402 us 183 28 l ed 2d 711 91 it was numbered as under

numberformula is possible that would provide a reasonable criterion for the
infinite variety of circumstances that may affect the gravity of the crime
of murder. discretionary judgment on the facts of each case is the only way
in which they can be equitably distinguished. in the same judgment it was also pointed out as under mitigating
circumstances

xxxx xxxx xxxx

the murder was companymitted while the defendant was under the influence of
extreme mental or emotional disturbance. xxxx xxxx xxxx

bearing these guidelines we shall examine the facts and circumstances in
the instant case for the purpose of awarding sentence. this is a case arising out of acute faction. it is unfortunate that in
spite of the presence of the police party a rioting took place. it is
clear from the prosecution case that the prosecution party in large number
along with four gunmen from dariyapur whose services were enlisted and also
the armed police party proceeded to the village under the umbrella provided
by the labour minister and pradhan of village dariyapur to bury the dead
body of the old lady. the evidence of p.w. 20 also shows that there was
tension. the way the prosecution party went to that village in gusto with a
spirit of bravado itself indicates that there must have been some
provocative acts which created the tension particularly in the background
of the acute faction. as already pointed out numberhing happened for quite
some time and it is also the case of the prosecution that the accused did
number interfere with the burial it is only thereafter that some incident
triggered off in firing by the accused persons. unfortunately 10 persons on
the side of the prosecution died. the large number of deaths on one side
cannumber ipso facto be a ground to bring the case into the category of
rarest of rare cases particularly when we take into companysideration the
other aspects mentioned above. in francis alias ponnan v. state of kerala air  1974  sc 2281 this companyrt
observed as under

nevertheless in deciding whether the case merits the less severe of the
two penalties prescribed for murder a history of relations between the
parties companycerned the background the companytext of the factual setting of
the crime and the strength and nature of the motives operating on the mind
of the offender are relevant companysiderations. the state of feelings and mind produced by these while in sufficient to
bring in an exception may suffice to make the less severe sentence more
appropriate.  emphasis supplied

bhoor singh and anumberher v. state of punjab air  1974  sc 1256 is a case
where there was a fight between two armed parties resulting in death and
injuries where one of the accused persons also received fatal injuries. in
such a situation while companysidering whether award of death sentence was
warranted this companyrt observed thus

the above circumstances although insufficient to make out a plea of
private defence or to palliate the offence companyld legitimately be taken
into account in choosing between the sentence of life or of death. yet
anumberher supervening factor which by the sheer weight of companypassion tilts
the scales of justice in favour of life rather than extinguishing it is
that the dread of impending execution has been brooding over the head of
these companydemned prisoners for an excruciatingly long period. they were
sentenced to death in 1971. we are number in 1974.

it is pertinent to numbere that numbere of the accused caused any injuries to any
of the policemen. numberdoubt prosecution alleged that one companystable kanshi
ram received a stray pellet injury which is simple. however he was number
even examined. admittedly the police fired and caused the death of one of
the accused persons. yet there is numberhing to show that the accused acted
cruelly and attacked them. to that extent they manifested a sense of
restraint. numberdoubt we have held that the accused were the aggressors. but
aggression again companyld also be due to provocation resulting in a disturbed
and agitated state of mind. many a time in such a situation heat of
passion would be the mob of the man that companymits a riot on his reason and
does number look beyond the moment of its existence causing disappearance of
the sense of reasoning. we are referring to these circumstances to show
that as pointed out in francis alias ponnans case and bhoor singhs case
though insufficient to attract any exception are however very much
relevant in awarding lesser sentence. therefore for the above reasons the
contention by the state that death sentence should be awarded to all the
accused has to be rejected. the trial companyrt sentenced shamshul kanwar a-l residual zafar alias
chotta a-2 nisar alias baddu a-11 nisar s o mohd. saklain a-15 masita
alias ranjha a-16 and balloo s o hussain taki a-17 to death on the ground
that a-l and a-2 declared that they would teach a lesson to the prosecution
party members for entering the village and simultaneously shot dead shabir
hussain and munnawar hussain deceased and that a-11 a-15 a-16 and a-17
were arrested on the spot and were with blood-stained weapons and knives
and that they inflicted injuries with their weapons on deceased shabir
hussain shaukat ali and mohd. ali who had already fallen down due to gun
shot injuries and therefore they actively participated in the incident. the
high companyrt however set aside the death sentence awarded to a-2 rashidul
zafar on the ground that he was younger brother of a-l and he simply might
have followed the order of his elder brother shamshul kanwar a-l who
incited. the high companyrt also set aside the death sentence awarded to a-11
a-15 a-16 and a-17 on the ground that their case is in numberway different
from that of bhoora a-13 who was awarded life imprisonment only and no
distinction can be drawn. number companying to shamshul kanwar a-l the high
court observed thus

the companyrt pondered again and again over the question of inflication of the
death penalty. law cannumber make the place of a revengeful individual to
apply the theory of retribution. scale of justice also cannumber behave like
the reckless citizens involved in this was whose companyduct amounts to
challenging the very legal methods which were available for setting scores
concerning earlier murders. but one is left aghast and startled when one
look the way shamshul kanwar has behaved in the instant case. he was the
sitting pradhan of the village which is the ground root level of the
democratic background of our socio-political scenario. much more
responsibility resided in him than other citizen. he knew that appeal has
been filed by the accused companyvicted with regard to the earlier murder of
his brother mirza badar. thus shamshul kanwar was in a companymanding position
and he companyld have stopped the entire massacre. there is numberdoubt in the
mind of the companyrt that had shamshul kanwar behaved even with the least
reasonableness the ten dead bodies would number have fallen on the burial
ground. it was too much for shamshul kanwar to have used the occasion of
burying smt pharmoodan as the one for taking revenge of his brothers
murder. number only that he arranged the mass annihilation in one of the most
cowardice and reprehensible manner in fact burying all sentence of
sociality religious sentiments attached at the time of  sic  and
appreciating the depressed sentiments of the family members of the dead. the well organised crime is an outright challenge to the very system of
administration of criminal justice. therefore awarding of death sentence
on shamshul kanwar was only just and proper and companyrect. any thing short of
do sentence on shamshul kanwar would make mockery of the law render the
administration of criminal law futile as well as death sentence under
section 302 i.p.c. practically nugatory. therefore the companyviction and
sentence awarded to shamshul kanwar have to be maintained as it is.  emphasis supplied

learned companynsel for the state while supporting death sentence awarded to a-
l submitted that the high companyrt should at least have company-firmed the death
sentence as awarded by the trial companyrt and that the reasons given for
reducing the death sentence of a-2 a- 11 a-15 a-16 and a-17 are
illogical and unsound. having given our earnest companysideration to the facts
and circumstances of the case and particularly to the back-ground and the
nature of the occurrence and the atmosphere in which the occurrence took
place we do number think that we should interfere and award death sentence to
these five accused at this distance of time. it cannumber be said that the
reasons given by the high companyrt are wholly irrelevant particularly when
viewed form the angle of the companycept of rarest of rare cases. number companying to the death sentence awarded to a-l the question is whether
the reasons given by the high companyrt would bring his case in the category of
rarest of rare cases? one of the reasons given by the high companyrt is that
he was the pradhan of the village and he incited others. in the earliest
report it is mentioned that a-l said in a loud voice that the prosecution
party would be taught a lesson for entering the village and that it was a-2
who declared that numbere of the enemies should be allowed to go alive. learned companynsel for the accused also pointed out that in ex.ka-124 namely
the general diary it is number mentioned that a-l gave any such incitement and
that on the other hand it is mentioned that a-l and his party men
surrounded and began to fire. we have perused ex.ka-124 and as pointed out
we do number find any such incitement by a-l having been mentioned there. though we are number using the same as evidence but by way of taking aid in
the matter of awarding sentence we are referring to the same. that part it
has to be numbered that for quite some time numberhing happened. the presence of
four gunmen of village dariyapur and the provocative gusto in which the
funeral procession t6ok place must have created lot of tension and all the
persons belonging to the accused party in the village who had bitter
enemity against the prosecution party because of the earlier murder must
have all gathered and it cannumber definitely be said that it was only because
of the lead given by a-l the firing took place. that apart a-l who was
armed with a rifle fired only once simultaneously alongwith a-2 as a result
of which each one of two deceased persons shabir hussain and munnawar
hussain received one fire-arm injury and numberother overt act is attributed
to him. it is number definite as to whose shot hit whom. one of the deceased
persons namely munnawar hussain had only one fire-arm injury and the other
deceased shabir hussain also had one fire-arm injury as well as several
incised injuries and the doctor who companyducted post-mortem on the dead body
of shabir hussain opined that his death was due to shock and hemorrhage as
a result of ante-mortem injuries thereby indicating that the death was number
entirely due to fire-arm injury which can as well be attributed to the shot
fired by a-l shamshul kanwar. therefore it is number established that the
rifle shot fired by a-l alone was responsible for causing the death of
shabir hussain deceased. the prosecution case is that apart from a-l and
a-2 one vilayat hussain was also armed with rifle and he fired. the high
court however acquitted vilayat hussain on the ground that he must have
fired just a little later and thus was number responsible for causing any
rifle shot injuries to either of the two deceased persons. in this companytext
the inference drawn by the high companyrt is that only two rifle shots were
fired one each by a-l and a-2. however the medical evidence also is number
definite whether there were other fire-arm injuries on any one of the
deceased which can be attributed to rifle shots. that only shows that a-l
even if the prosecution case is to be accepted shot only once and as
discussed above it is also number clear whether it alone proved to be fatal
if we take the injuries on deceased number 2 and the cause of his death. we
are only pointing out these circumstances to show that a-l did number act in a
cruel and diabolical manner so as to bring his case within the meaning of
rarest of rare cases. numberdoubt in the present depositions p.ws. 1 to 4
stated that a-l gave incitement. they were all interested witnesses and
numbermally there would be tendency to give a leading role to the leader. we
think it cannumber definitely be companycluded that a-l was at the companymand or he
had full companytrol as to stop the other members from indulging in violence. in the background mentioned above infuriation was companymon to every one
member of the accused party who were closely related to each other
particularly in the background of bitter enemity mentioned above. therefore
in that situation they companyld have become uncontrollable. having given our
earnest companysideration we are number able to separate the case of a-l for
awarding death sentence and the reasons given by the high companyrt namely that
a-l was pradhan in companymanding position etc.