LexALLAUDDIN MIAN & ORS. SHARIF MIAN & ANR. versus STATE OF BIHAR
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• M " :t ' I .~ i t i, i B ALLAUDDIN MIAN & ORS. SHARIF MIAN & ANR. v. STATE OF BIHAR APRIL 13, 1989 [S. NATARAJAN AND A.M. AHMADI, JJ.] Criminal Procedure Code, 1973: Section 235 and section 354(3)-Sentence-Decision-Sentencing court to approach questiou seriously-Endeavour to see that all relevant facts and circumstances bearing on sentence brought on record-Sentence of severity imposed- Jmperative for Judge to indicate basis-'Special reason clause' in death sentence cases indicates obligation to explain choice of sentence. Indian Penal Code, 1860: Sections 34, 141, 149--Unlawful assembly-Fastening of vicarious responsibility on a member-Pro- secution to prove act was done in prosecution of common object of .D assembly. E F G l-I Accused Nos. I to 6, constituting an unlawful a,,.embly the com- mon intention of which was to kill Baharan Mian, came to his house armed with deadly weapons. Baharan Mian, apprehending trouble, ran _,. inside fo arm himself but his wife prevented him from coming out again. At that time, Baharan Mian's two infant daughters, Sahana Kbatoon aged about seven years and Chand Tara aged about seven months, were playing in .the 'dalan' of his house. Failing in their object to kill ~ Baharan Mi~n, accused No. 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon causing serious injuries, and accused No. 2 gave one farsa blow on the head of infant Chand Tara. As a result of these injuries, Sahana Khatoon died the same day while Chand Tara died after 28 days. Accused Nos. 1 and 2 were charged under sections 302, 452 and , ---..... 148 I.P.C., whereas accused Nos. 3 to 6 were sought to be held vica- riously liable under section 302/149 I.P.C. Accused Nos. 3 and 4 were further charged under sections 447 and 148, I.P.C. and accused Nos. 5 & 6 were charged under sections 447 and 147, I.P.C. The Trial Court ,,._ convicted accused Nos. l and 2 on all the three counts and awarded the sentence of death to both of them for the commission of the offence punishable under section 302, I.P.C. Accused Nos. 3 and 4 were con- victed under sections 302/149, 447 and 148, I.P.C. and for the offence under section 302/149, each of'them was directed to suffer imprison- 498 v ALLA UDDIN v. STATE OF BIHAR 499 •ment for life. Accused Nos. 5 and 6 were convicted under sections 302/149, 447 and 147, I.P.C. For the offence under sections 302/149, I.P.C., they were sentenced to undergo imprisonment for life. A The High Court dismissed the appeal of accused Nos. 1 and 2 and, while accepting the reference,. confirmed the sentence of death a· .. uded to them for the murder of the two infant girls. The conviction of the ~ remaining four accused under section 302/149 was, however, altered to· r sections 326/149 and the sentence of imprisonment for life given to each .,of them was substituted by a sentence of rigorous imprisonment for seven years. Their co11victions and sentences on the other counts were, however, maintained.,· B ·- Before this Court it was contended on behalf of the appellants that (1) the evidence adduced by the prosecution was not reliable; (2) Even on the facts found proved by the courts below, accused Nos. 1 to 6 could not be held guilty of murder with the aid of section 149, I.P.C. as the killings of the. two girls was outside the common object of the unlawful assembly; (3) the facts of the case did not warrant a death penalty in the case of accused Nos. 1 and 2, more so because the procedural require- ment of section 235(2) of the Cr. P .C. was not followed in letter and spirit; and (4) section 302, I.P.C., and section 354(3), Cr.P.C., insofar as they permit the imposition of the death penalty were violative of Articles 14, 19 and 21 of the Constitution oflndia. While partly allowing the appeals by converting the sentence of c D E - death in the case of accused nos. l and 2 to imprisonment for life under section 302, I.P.C., and setting aside the conviction of accused nos. 3 to 6 under section 326/149 I.P.C., the Court, HELD: (l) There is no substance in the contention that the pro- F secution evidence is unreliable and .should not be acted upon for .. con- firming the conviction of the accused persons. [508B-C] (2) If the prosecution did n~t examine some persons who were admittedly present at .the . scene of occurrence, on . learning that they were won over, it cannot be said that the prosecution was un
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