LexSHAMSHUL KANWAR versus STATE OF U.P.
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( SHAMSHUL KANWAR A v. ' STATE OF U.P. MAY4, 1995 [M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.] B Indian Penal Code 1860: S.302 read with S.149--Faction fighting with 1 deadly weapons resulting in death of ten persons-All deceased belonging to -' prosecution party who had come to village for a burial-Held, accused party were the aggressors; shared common object of unlawful assembly to kill mem- c bers of the prosecuting party. Code of Criminal Procedure: Ss.235(2), 366-l>eath sentence-Faction fight invqlving atiack with rifles and deadly weapons resulting in death of ten persons-High Cowt confirming death sen:ence awarded to leader of accused D p011y-Held: accused did not act in diabolical manner to bring the case within the meaning of 'rarest of rare' cases ; sentence commuted to life imprison- ment. I Code of Criminal Procedure 1973 : S.177r-f'olice officer witnessing rioting making notes in general diary about movements but not names of E accused and witnesses-Whether absence of such details makes presence of Police Officer and his version doubtful-Held, general diary was not case diary within the meaning of S.172 and no details other than movements need be mentioned; evidence of Police Officer corroborates evidence of other eye witnesseHndian Evidence Act 1872, Ss.145, 161. ,, F Village Sakhni, District Bulandshahr was faction ridden. Accused SK led one faction and MH led the other. In the year 1981 one MB belonging to the party of SK was murdered. In that case 12 persons Including MH were tried and convicted. When they were out of jail they were threatened by SK and his family. G MH's mother-in-law died in Delhi ten days prior to the occurrence of February 1, 1989. In accordance with her last wish that she should be burled in. her family graveyard, MH and others carried the dead body i11 a truck to Sakbnl. The S.H.O. Jabanglrabad sent an escort comprising of an A.S.I. and two armed constables. After reaching Sakhni, the 'janaza' (funeral) H 1197 1198 SUPREME COURT REPORTS (1995]3 S.C.R. A was performed and they proceeded to the graveyard. Noticing that there was tension in the village, the ASI talked to SK who told him that his brother was killed by the other party and that he could not do anything. As ~ the body was being buried and the last earth poured, SK came there with 20 to 22 men armed with rifles, runs, farsas, knives, ballams and churies etc. Seeing an additional police party approaching, SK, his younger brother B RZ and their followers fired indiscriminately and assaulted the persons gathered with their ballams and farsas. Ten persons were killed. The trial court sentenced SK and RZ, and four associates to death. It sentenced eleven others to imprisonment for life. The High Court while C maintaining the death sentence awarded to SK, reduced the sentence awarded to RZ and the four associates to life imprisonment. Two of the accused were acquitted. The remaining accused and the State appealed. The accused, inter alia, contended that the general diary maintained by the ASI, the key prosecution witness, and produced in court as an D exhibit, did not contain the names of the accused or witnesses and that accordingly the presence of the ASI at the occurrence was itself doubtful. Alternatively it was contended that the version of the eye witnesses was of interested persons and should be rejected. Partly allowing SK's appeal and dismissing the other appeals, this E Court HELD : 1.1. The ten persons who were killed admittedly belong to the prosecution party participating in the funeral and many of them were from Delhi. The accused party were the aggressors and indulged in indis· criminate firing causing the death of so many people of the opposite party. F There cannot 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 cannot but be held guilty. (1222-B·E] 1..2 In an occurrence of this magnitude where several persons have G participated it would not 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 t!>at snch of those accnsed who came to the scene of occurrence armed with lethal weapons in a group and proceeded to par· ticipate in the attack, shared the common object of the unlawful assembly namely to attack and kill the members of the opposite p
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