minal Appeals Nos
30 34 of 1964
Appeals by special leave from the judgment and order dated October 22 1963 of the Allahabad High Court in Criminal Appeals Nos 77 and 78 of 1963
M section K Sastri for the appellant in Cr A No 30 of 1964
I M Lall and Ganpat Rai for the appellants in Cr A No 31 of 1964
V Y Sawhney for the appellants in Cr A Nos
32 3464
0 P Rana Atiqur Pehman and C P Lal for the res pondents May 4
The Judgment of the Court delivered by GAJENDRAGADKAR C J Forty person were charged with having committed several offences the principal one of which was under section 302 read with section 149 of the Indian Penal Code
The case against these persons was tried by the first Additional Sessions judge at Jhansi
The other charges framed against them were under section 307  149 201 149  SI 1 395 396 149  449 1
The learned trial Judge held that none of the char es had been proved against five of the accused persons He also found that the charges under sections 395  396 were not proved against any of them
In regard to the remaining charges
he found that 35 out of 40 accused persons were guilty
For the major offence charged under section 302149 he sentenced 10 accused persons to death and 25 others to imprisonment for life
He also directed that the said accused persons should undergo different terms of imprisonment for the remaining offences but for the purpose of the present appeals it is unnecessary to refer to them
136 After the learned trial Judge pronounced his judgment on the 31st December 1962 the 35 accused persons who had been convicted by him preferred three appeals between them before the Allababad High Court whereas the sentences of death imposed on 10 accused persons by the learned trial Judge were submitted to the said High Court for confirmation
The High Court has held that 7 out of the 35 appellants before it were not proved to have committed any of the offences and so they were ordered to be acquitted
In regard to the remaining 28 appellants the High Court has confirmed the orders of conviction and sentence imposed on them by the trial Court
In the result the reference made to the High Court for confirmation of the sentences of death imposed on the 10 accused persons by the trial Court was allowed
It is against this decision of the High Court that the present five appeals have been brought to this Court by special leave and the number of accused persons who have brought these appeals before us is 16
Before dealing with the points raised in these appeals it is necessary to set out very briefly the relevant facts on which the prosecution case against the appellants and their co accused substantially rests
The incident which has given rise to the present criminal proceedings took place on the 29th November 1961 in village Bilati Khet in the district of Jhansi at about 8 am It is clear that this village is cursed with keen rivalry and enmity between two factionsOne group was led by Gayadin who and four other members of his family were murdered on the said date
All these murders were committed according to the prosecution by the members of the rival faction amongst whom are included the present appellants before us
Criminal proceedings have continued between the parties for several years almost without interruption
The rival group was led by Laxmi Prasad alias Laxmi Narain who is one of the appellants in this Court
In the last election of the village Panchayat Laxmi Prasad succeeded as Pradhan of the village and defeated the candidate set up by Gayadin
On the 28th November 1961 a boundary dispute led to an incident between the members of the two groups
This dispute related to two fields one of which belonged to Gayadin and 137 the other to Laxmi Prasad
Attempts were made to settle this dispute by arbitration but they failed
It appears that Laxmi Prasad and the members of his group did not agree to submit to any arbitration and they left the meeting called for the purpose threatening that they would see that the matter in dispute between them was settled the next day
It is on this grim note that the incident of the 28th November ended
On the 29th November in the early morning Bahoran one of the sons of Gayadin had gone out to ease himself
He was then carrying a pharsa
In the field he met Laxmi Prasad who attacked him with a lathi
Bahoran retaliated this attack with his own pharsa and in the scuffle the nose of Laxmi Prasad was injured and it began to bleed in fact a part of the nose was actually cut
Infuriated by this injury Laxmi Prasad went to his house and collected the whole crowd belonging to his faction
Bahoran eased himself and returned to his house
Soon there after he washed his hands and went to the north where his father brothers and other relations were warming themselves by fire
At that stage Ram Prasad and Dayaram rushed to the scene and informed them that Laxmi Prasad and his companions were all armed with guns spears swords gandasas and lathis and were proceeding to the house of Gayadin determined to kill all the members of Gayadin s family
On receiving this alarming information Gavadin and his friends and relatives thought of proceeding towards the house of Gayadin
About that time Laxmi Prasad and his companions reached near the house of Gayadin whereon Laxmi Prasad fired a gun
Bhagwati was carrying a large quantity of cartridges in the folds of his dhoti and was instigating Laxmi Prasad to fire at everyone sitting near the fire to the north of the house and to exterminate the family of Gayadin
On hearing this everyone of the group sitting near the fire rushed into the house and closed the doors
The assailants then broke open the doors of the house and entered the sehan of Gayadin
Inside the house the assailants pursued Gayadin on the upper storey and killed him there
Brindaban Radha Saran and Dayaram were hiding in different rooms of the house the doors of these rooms 138 were broken open and all the three of them were shot dead
Bahoran and Shiroman Singh both sons of Gayadin escaped through the tiled roof into the cattleshed of Harbans which is situated towards the south east of Gayadin s house
Shiroman concealed himself in the godown while Bahoran concealed himself in the room in the upper storey where chaff had been stored
After killing Gayadin Brindaban Radha Saran and Dayaram the assailants mercilessly dragged the bodies of the victims out of the house of Gayadin and began their search for Bahoran and other male inmates of the house
When the dead bodies were thus being dragged Gori Dulaiya wife of Gayadin rushed after the assailants and implored them not to take the dead bodies away
One of the assailants however struck her with a stick and she was forced to retrace her steps
The dead bodies were then dragged towards the east of the house
On reaching the cattleshed of Harbans the assailants broke open the outer door of the house and entered into it
They then injured Harbans and managed to discover Shiroman Singh who was promptly killed
The five dead bodies were then taken into the field of Bhagwati
In the field two big piles of cowdung cakes were prepared
On one of the piles the bodies of Gayadin Brindaban Radha Saran and Davaram were placed and on the other Shiroman Singh s body was put
Kerosene oil was sprinkled on the bodies and fire was set to them
That in brief is the story of the gruesome murders which have given rise to the present proceedings
When the assailants had left the house of Gayadin dragging the dead bodies with them
Rahoran came out of hi hiding place and rushed to the Police Station Krichh and lodged the First Information Report at about 11 o clock
In this report he gave all the material details in regard to the commissionof the offence and named the 35 persons as the assailants In fact the first committal order passed on the 31st March 1962 in the present proceedings referred to 35 assailants
Later
five more persons were added to the list of assailants by the committal order made on the 14th May 1962
On receiving the first information report the police party rushed to the scene of occurrence on cycles and they put off the burning fire and took out the half burnt 139 bodies of the five murdered persons
These bodies were identified aid were sent for post mortem examination
The injured persons Harbans Ram Prasad Mansa Ram and Smt
Gori Dulaiya were sent for medical examination
Post mortem examination was then held on the dead bodies and statements of witnesses were recorded in the course of investigation
That led to the several charges framed against 40 persons and ultimately their trial in the Court of the First Additional Sessions Judge at Jhansi
The case for the prosecution is sought to be established by the testimony of 12 eye witnesses
All the accused persons denied that they had anything to do with the offences charged
Their main contention was that a false case had been made against them and it was attempted to be supported by evidence of witnesses who were hostile to them and who had no regard for cruth
The trial Judge in substance
rejected the defence plea and accepted the prosecution evi dence
except in the case of five accused persons
In appeal several contentions were raised on behalf of the appellants but they were rejected and in the result the findings of the trial Court against the appellants were confirmed
The High Court however reversed the conclusion of the trial Court in respect of 7 accused persons with whose cases we are not concerned in the present appeals
The 12 persons who gave direct evidence against the appellants and their co accused persons are Bahoran PW 1 Basanti Lal PW2 Rameshwar Dayal PW3 Prabhu Dayal PW5 Pancham PW6 Swarup Singh PW14 Kasturi PW15 Thakur Das PW16
Shyamlal PW17 Harbans PW18 Dropadi PW19 and Kishori Lal PW20
The High Court has critically examined the evidence given by these witnesses and has held that the evidence of Bahoran and Prabhu Dayal may be left out of account as it appeared to the High Court that the said evidence suffered from material infirmities
The evidence given by the remaining 10 witnesses has however been accepted by the High Court as substantially true and correct
Jr dealing with this oral evidence the High Court took into account the fact that most of these witnesses belonged to the faction of Gayadin and must therefore be regarded 140 as partisan
It also considered another feature which characterised the evidence of all the witnesses and that was that they gave their account of the incident substantially in similar terms and did not assign particular parts in respect of overt acts to any of the assailants except Laxmi Prasad accused No 1
The approach adopted by the High Court shows that it decided to confirm the conviction of the accused persons against whom four or more witnesses gave a consistent account and it is by the application of this test that 7 accused persons have been acquitted
As to the sentence the High Court realised that 10 persons had been ordered to be hanged and that it could not be said about all of them except Laxmi Prasad that they had actually fired a gun and caused the death of any of the five victims
Even so the High Court held that since they all formed members of the unlawful assembly the common object of which was to exterminate the male members of the family of Gayadin they were all equally guilty of murder under s302149 IPC and it would not therefore be unreasonable to impose the penalty of death on such of the assailants is were shown to have carried guns in their hands on that occasion
That is how the High Court upheld the orders of conviction passed against 28 persons who had brought their cases before it in appeal and confirmed the sentences of death imposed on I 0 of them
In these appeals Mr Sawhney who has addressed the principal argument before us on behalf of the appellants has urged that the High Court has failed in discharging its duty properly when it dealt with the appeals brought before it by the appellants and decided to confirm the sentences of death imposed on 10 of the accused persons
In support of this argument Mr Sawhney has relied upon the decision of this Court in the case of Jumman  Ors
vs The State of Punjab
1 In that case this Court has emphasised the fact that the mandatory requirement prescribed by s374 of the Code of Criminal Procedure shows that in dealing with reference for confirmation of death sentence imposed by the Sessions Judge the High Court has to consider the entire case for itself before deciding whether the sentence of death 1 ATR I957 SC 469 141 should be confirmed or not
Section 374 provides that the sentence of death shall not be executed unless it is confirmed by the High Court
In other words the sentence of death imposed by the Court of Sessions is not effective until and unless it is confirmed by the High Court
It is only when the High Court confirms the sentence of death that it is capable of execution
That is why this Court emphasised the solemnity of the Proceedings brought before the High Court under s374 and it pointed out that under s375 the High Court is given the power to admit additional evidence if it thinks necessary to do so
Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Sessions
The conclusions of the High Court on the merits in such proceedings must be independent
and so the High Court inevitably has to go into the whole of the evidence
consider all the pros and cons of the case and satisfy itself that the offence charged under section 302 IPC is established beyond reasonable doubt and the sentence of death submitted to it for its confirmation is fully justified
Mr Sawhney contends that this essential requirement of s374 has not been complied with by the High Court when it dealt with the appeals brought before it in the present proceedings
He also adds that since 10 persons have been ordered to be hanged that itself is a reason why this Court should examine the evidence for itself and not hold that the appellants are concluded by concurrent findings of fact recorded by the Court below
We are not impressed by this argument
It is perfectly true that in a murder trial when an accused person stands charged with the commission of an offence punishable under s302 he stands the risk of being subjected to the highest penalty prescribed by the Indian Penal Code and naturally judicial approach in dealing with such cases has to be cautious circumspect and careful
In dealing with such appeals or reference proceedings where the question of con firming a death sentence is involved the High Court has also 142 to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of death
All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered be fore a final decision is reached
The fact that 10 persons had been ordered to be hanged by the trial Judge necessarily imposed a more serious and onerous res ponsibility on the High Court in dealing with the present appeals
We have carefully considered the judgment delivered by the High Court in these appeals and we are satisfied that the criticism made by Mr Sawhney that the High Court did not bestow due care and attention on the points involved in the case cannot be regarded as well founded The judgment shows that the arguments which were urged on behalf of the appellants have been carefully examined the evidence given by the respective witnesses has been accurately summarised and the infirmities in the said evidence closely scrutinised
The relevance of the argument of the admitted enmity between the two factions of the village has been taken into account and the common features of the evidence tendered by the witnesses have not been overlooked
After taking into account all the points which were urged before the High Court the High Court adopted what it thought to be a safe test before acting on direct evidence
It has held that unless at least four witnesses are shown to have given a consistent account against any of the appellants
the case against them cannot be said to have been proved beyond reasonable doubt
Having regard to the manner in which the High Court has dealt with the appeals brought before it we are not prepared to hold that the general criticism made by Mr Sawhney against the judgment of the High Court can be accepted
In this connection Mr Sawhney strongly relied on the fact that the High Court has not considered one important point in favour of the defence and that is in to the failure of the prosecution to tender three material witnesses whose names had been shown in the witness list in the calendar sent by the committing Magistrate to the trial Judge
These witnesses are Ram Prasad Mansa Ram and 143 Rani Dulhan
It appears that this contention was raised by the defence before the Trial Court and had been rejected by it
The Government counsel appearing for the prosecution had made an application to the trial Court expressing his inability to examine the three witnesses for the reason that Ram Prasad and Mansa Ram had been won over by the defence and Rani Dulhan the widow of one of the victims was suffering from such mental shock that she was unable to depose coherently
After this application was made and granted the learned trial Judge did not insist upon the prosecution examining the three said witnesses
Then followed three other applications by the defence Nos 247B 248B and 249B in which it was urged that the said three witnesses should be examined under s540 Cr
The learned trial Judge rejected these applications and so the case concluded without the said three witnesses giving evidence before the trial Court
In rejecting the applica tions made by the defence the learned Judge has carefully examined the validity of the defence contention that the evidence given by the said witnesses before the Committing Magistrate showed that they were material witnesses and the plea raised by them that the absence of their evidence would cause prejudice to the defence and has held that the evidence which the said three witnesses may give was not essential for a just decision of the case and that it was unreasonable to suggest that the prosecution had an oblique moive in supressing their evidence
This part of the judg ment clearly shows that all relevant aspects of the matter were examined by the trial Judge before he refused to exercise his powers under s540 Cr
It is obvious that this contention was not urged before the High Court and so we find no discussion of the point in the judgment of the High Court
We are not prepared to accept Mr Sawhney s argument that even if this point was not raised by the appellants before the High Court they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged
It may be conceded that if a point of fact which plainly arises on the record or a point of law which is relevant and material and can be argued with 144 out any further evidence being taken was urged before the trial Court and after it was rejected by it was not repeated before the High Court it may in a proper case be permis sible to the appellants to ask this Court to consider that point in an appeal under article 136 of the Constitution afterall in criminal proceedings of this character where sentences of death are imposed on the appellants it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court
If it is shown that the pleas were actually urged before the High Court and had not been considered by it then of course the party is entitled as a matter of right to obtain a decision on those pleas from this Court
But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under article 136
In the present case however we are satisfied that there is no substance in the contention which Mr Sawhney seeks to raise before us
It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried attempts are made either to terrorise or win over prosecution witnesses and if the prosecutor honestly and bonafide believes that some of his witnesses have been won over it would be unreasonable to insist that he must tender such witnesses before the Court
It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case but it would be unsound to lay down is a general rule that every witness must be exa mined even though his evidence may not be very material or even if it is known that he has been won over or terrorised
In such a case it is always open to the defence to examine such witnesses is their witnesses and the Court can also call such witnesses in the box in the interest of justice under s540 Cr
As we have already seen the defence did not examine these witnesses and the Court after due deliberation refused to exercise its power under s540 Cr
That is one aspect of the matter which we have to take into account
145 The other aspect of the matter is that the trial Court has found that the evidence which these witnesses would have given was not essential for a just decision of the case
What these witnesses might have said in the Sessions Court was judged by the trial Court in the light of their previous statements already recorded and that is a finding which is purely one of fact
If this finding was not challenged by the appellants before the High Court we do not see how they can claim to argue before us now that the said finding is erroneous
Besides so far as Rani Dulhan is concerned it seems to us utterly unreasonable to insist that before per mitting the prosecutor not to examine her evidence should have been led to show that she was suffering from such mental shock that she was unable to give a coherent account of the tragic events that happened on that fateful morning
One has merely to recall the fact that five male members of her family were butchered to death by the assailants to realise that the prosecutor s statement that she was mentally unbalanced must be true
Then as to Ram Prasad and Mansa Ram having been won over by the defence that again is a matter on which the trial Court appears to have been satisfied otherwise it would have readily acceded to the request of the defence to exercise its powers under section 540
We are inclined to think that it is because this part of the defence contention was felt to be inarguable that the Advocate for the appellants did not raise this point before the Court
Therefore we are not prepared to allow Mr Sawhney to take us through the evidence in the case on the ground that one important contention raised by the defence has not been examined by the High Court
Mr Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims their evidence should not be accepted because they are prone to involve falsely mem bers of the rival faction out of enmity and partisan feeling
There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested it has to be very careful in weighing such evidence
51 SC IO 146 Whether or not there are discrepancies in the evidence whether or not the evidence strikes the Court as genuine whether or not the story disclosed by the evidence is prob able are all matters which must be taken into account
But it would we think be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses
Often enough where factions prevail in villages and murders are committed as a result of enmity between such factions criminal Courts have to deal with evidence of a partisan type
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice
No hard and fast rule can be laid down as to how much evidence should be appreciated
Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct
Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants that evidence should not have been accepted
This criticism again is not well founded
Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly it is often not possible for witnesses to describe accurately the part played by each one of the assailants
Besides if a large crowd of persons armed with weapons assaults the intended victims it may not be necessary that all of them have to take part in the actual assault
In the present case for instance several weapons were carried by different members of the unlawful assembly but it appears that the guns were used and that was enough to kill 5 per sons
In such a case it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used the story in regard to the said weapons itself should be rejected
Appreciation of evidence in such a complex case is no doubt a difficult task but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not
In the 147 present case the High Court has in fact refused to act upon the evidence of Bahoran and Prabhu Dayal because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities
Mr Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical
He argues that under the Indian Evidence Act trustworthy evidence given by a single witness would be enough to convict an accused person whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction
That no doubt is true but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident
In a sense the test may be described as mechanical but it is difficult to see how it can be treated as irrational or unreasonable
Therefore we do not think that any grievance can be made by the appellants against the adoption of this test
If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses and if the said test had not been applied they might as well have been convicted
It is no doubt the quality of the evidence that matters and not the number of witnesses who give such evidence
But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case
Mr Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin vs State of Uttar Pradesh 
In that case it was observed by Sinha J who spoke for the Court that it is well settled that mere presence in an assembly does not make a person who is present a number of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly or unless the case falls under s142 IPC The argument is 1 AIR 1956 SC 181 148 that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act and so the High Court was in error in holding that the appellants were members of an unlawful assembly
The observation of which Mr Sawhney relies prima facie does seem to support his contention but with respect we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly it cannot be said that he is a member of such an unlawful assembly
In appreciating the effect of the relevant observation on which Mr Sawhney has built his argument we must bear in mind the facts which were found in that case
It appears that in the case of Baladin1 the members of the family of the appellants and other residents of the village had assembled together some of them shared the common object of the unlawful assembly while others were merely passive wit nesses
Dealing with such an assembly this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an un lawful assembly
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 constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s141 IPC Section 142 provides that whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or continues 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 common objects specified by the five clauses of section 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 common objects as specified by section 141
While determining this question it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had 1 AIR 1956 SC 181 I49 joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly
It is in that context that the observations made by this Court in the case of Baladin1 assume significance otherwise in law it would not be correct to say that before a person is held to be a member of an unlawful assembly it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly
In fact s149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the committing 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 s149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly
Therefore we are satisfied that the observations made in the case of Baladinl must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr Sawhney suggests
In this case the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together armed with several weapons because they entertained a common object in pursuance of which the five murders were committed on that day
Therefore there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not sup ported by the principles of law enunciated by this Court in the case of Baladin1
It is thus clear that the general grounds of attack urged before us by Mr Sawhney in challenging the validity of the conclusions recorded by the High Court fail and so there 1 AIR
I956 SC 181 150 would be no occasion or justification for this Court to con sider the evidence for itself
That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons
Mr Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case the High Court has adopted a mechanical rule
The High Court has held that the 10 persons who carried fire arms should be ordered to be hanged whereas others who have also been convicted under section 302149 should be sentenced to imprisonment for life
It is true that except for Laxmi Prasad the charge under section 302149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawfui assembly of which they were members and the argument is that unless it is shown that a particular accused person has himself committed the murder of one or the other of the victims the sentence of death should not be imposed on him
In other words the contention is that if a person is found guilty of murder under section 302149 and it is not shown that he himself committed the murder in question he is not liable to be sentenced to death
In support of this argument Mr Sawhney has relied on certain observations made by Bose J who spoke for the Court in Dalip Singh vs State of Punjab 
In that case what this Court observed was that the power to enhance a sentence from transportation to death should very rarely be exercised and only for the stron gest reasons and it was added that it is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised
These observations have no relevance in the present case because we are not dealing With a case where the High Court has enhanced the sentence imposed by the trial Judge at all
In fact both the trial Court and the High Court are agreed that the sentences of death imposed on 10 persons are justi fied by the circumstances of the case and by the requirements 1 1954 SCR 145 151 of justice
As a mere proposition of law it should be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself
Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly is a matter which had to be decided on the facts and circumstances of each case
In the present case it is clear that the whole group of persons belonged to Laxmi Prasad s faction joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin 10 of these persons were armed with fire arms and the others with several other deadly weapons and evidence shows that five murders by shooting were committed by the members of this unlawful assesmbly
The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms
It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court
Therefore we see no reason to accept the argument urged by Mr Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable
There are however three cases in which we think we ought to interfere
These are the case of accused No 9 Ram Saran who is aged 18 accused No II Asha Ram who is aged 23 and accused No 16 Deo prasad who is aged 24 Ram Saran and Asha Ram are the sons of Bhagwati who is accused No 2
Both of them have been sentenced to death
Similarly Deo prasad has also been sentenced to death
Having regard to the circumstances under which the unlawful assembly came to be formed we are satisfied that these 152 young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families
The list of accused persons shows that the unlaw ful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages it would not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders and so we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment
Accordingly we confirm the orders of conviction and sentence passed against all the appellants except accused Nos 9 11 and 16 in whose cases the sentences are altered to those of imprisonment for life
In the result the appeals are dismissed subject to the said modification
Appeals dismissed


Summary:
Forty persons belonging to a village faction and constituting an unlawful assembly were put up on trial before the Additional Sessions Judge under section 302 read with section 149 of the Indian Penal Code and other sections thereof for murdering 5 persons of the other faction with guns
The trial Judge found 35 of them guilty and sentenced 10 of them who carried fire arms to death and the rest to imprisonment for life
Three appeals were preferred by the convicted persons to the High Court and the sentences of death came up for confirmation under section 374 of the 1 LR 59 IA 2o6
134 Code of Criminal Procedure
The High Court acquitted 7 of the appellants and concurring with the findings of the trial court dismissed the appeals of the rest
It confirmed the sentences of death passed on the 10 accused persons
The appeals to this Court were preferred by those 10 and 6 others by special leave
HELD i In criminal appeals under article 136 of the Constitution involving sentences of death it would be improper to refuse to consider relevant pleas of fact or law on the ground that they had not been taken before the High Court
when any such point had actually been urged and not considered by the High Court the party urging it was entitled as a matter of right to obtain a decision from this Court
Even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in such appeals
iiIt would be unsound to lay down as a general rule that every witness cited by the prosecution must be examined by it even though his evidence was not very material or he was known to have been won over or terrorised
iii Evidence of a witness could not be discarded only on the ground that he was a partisan or interested witness particularly in cases of murder committed by a village faction such mechanical rejection would invariably lead to failure of justice
ivIt was not improper for a criminal court having a large number of offenders and victims to deal with to adopt the test that the conviction of any particular accused could be sustained only if a particular number of witnesses gave a consistent account against him
Such a test even though mechanical was not unreasonable
Punishment prescribed by section 149 of the Indian Penal Code was in a sense vicarious and that section does not necessarily require that the offence must have been actually committed by every member of the unlawful assembly
The observations of this Court in Baladin vs State of UP had to be read in the context of that case and could not be treated as laying down an unqualified proposition of law
Baladin vs State of Uttar Pradesh AIR 1958 SC 181 explained
vi It was not correct to say that if a person was found guilty of murder under section 302149 of the Indian Penal Code and it was not shown that he himself had committed the murder no sentence of death could be inflicted on him
Dalip Singh vs State of Punjab 19541 SCR 145 distinguished
vii There was no error in the exercise of their discretion by the courts below in the present case in making a distinction between the ten persons who carried fire arms and were sentenced to death and the others who did not carry fire and were sentenced to imprisonment for life under a common charge under sections 302149
I35 viii
Regard being had to the circumstances of the present case the ends of justice would be properly served if the sentences of death passed on the three accused persons aged 18 23 and 24 who had joined the unlawful assembly under pressure of their elders were modified to life sentences