LexSHOBHIT CHAMAR AND ANR. versus STATE OF BIHAR
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----- - - SHOBHIT CHAMAR AND ANR. v. \ STATE OF BIHAR MARCH 4,1998 [G.T NANAVATI AND S.P. KURDUKAR, JJ.) Indian Penal Code.~ 1860-Section 302-Muder-Rarest of rare case- Conviction of appellants (A-2 and A-1) under Sections 3021149, 380 and A B 460 for committing dacoity and murder of all the six male members of a family including two minor childem of 8 years and JO.years-A-I was awarded C death sentence on the basis of general statement made by all the eyewitnesses that the miscreants had gunned down six persons ·during the incident- Evidence showing that A-1 had also exhorted that no male member of the family of the deceased' should be kept alive-One· of the eye:witnesses admitting that A-1 was not having any firearm in his hand at the time of the D incident-But all the eye-witnesses consistently deposed that A-2 had fired from firearm on all the six persons who died instantaneously-A-2 had miStaken belief that one of the deceased was responsible for the murder of his brother and nepheW-A2 and A-1 not related-The case of A-2 only will fall in the category of rarest of rare case-Death sentence aWarded by the courts below, upheld-Sentence of A-1 altered to life imprisonment-Criminal E Trial-Sentence-Death Sentence-Criminal Procedure Code. Section 354(3). Criminal Procedure Code, 1973 : . Section 313-Allegaton of non.-comp/iance of procedure regarding recording of statement of acused under Sectionn 313-Allegation brought F first time before Supre e Court-Held, unless material p~ejudice is shown to have caused to the aceused, challenge to conviction cannot be entertained-- No such prejudice demonstrated-Held, triai cannot be said to have been vitiated-Criminal Trial-Penal Code, 1860, Sections 3021149,380 and 460. Section 235(2rTrial. Court-Mandatory duty to give the accused opportunity of being heard on the question of sentence-After convicting, the accused was remanded to judicial custody for a week and after that giving them full opportunity of being heard and also after folly hearing the Advocate for the accused, passed the death sentence-Held, no prejudice was caused G to the accused an the ground of non-compliance of Section 235(2). H 117 118 SUPREME COURT REPORTS [1998] 2 S.C.R. A Penology-Sentence-Court has lo bear in mind the crime and the criminal while awarding sentence-More then one person involved in the crime-Distinction in awarding the sentence can be drawn between the accused on the basis of degree of complicity and brutality in the offence. Appellant (A-2) had animosity against the family members of the B decased for he belived that one of the deceased was responsible for causing murder of his brother and nephew. To take revenge, A-2 along with other accused persons along with 15 to 20 miscreants, armed with rifles and other firearms, entered the house of the decased and looted the ornaments and other belongings and then murdered 6 male members of the deceased family C including two minor children of 8 to 10 years with a veiw that these minor should not take revenge for the murder when they became major. After investigation appellant along with three other accused persons were tried for offences committed under Section 302/149, 380 and 460 of the Indian Penal Code and Section 27 of the Arms Act. Before the trial, D evidence showing that A-1 had exhorted that no male member of the family should be kept alive. One of the eyewitnesses admitting that A-1 was not having any firearm in his hand at the time of the "incident. But all the eyewitnesses deposed that A-2 had fired from the firearm on all the six persons who died instantaneously. The trial court after careful scrutiny of the oral and documentary evidence on record held the appellants (A-2 and E A-1) guilty of offences punishable under Section 302/149, 380 and 460 IPC and also under Section 27 of the Arms Act. The trial Court had acquitted two.other accused. After h1~aring the appellants and their counsel, the trial court awarded death sentence to both the appellants and made a reference to the High Court under Section 366 Cr. PC. The High Court on reappraisal p · of the entire evidence accepted the reference and confirmed the death sentence awarded to both the appellants and dismissed the cirminal appeals filed by the appellant and the State. Hence this appeal by the appellants. Dismissing the appeal, this·Court G HELD : 1. The challenge to the conviction based on non-compliance
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