SK. Ayyub & Ors. Vs. State of Maharashtra
EmailAppeal: Criminal Appeal Nos. 181-183 of 1994
(From the Judgment and Order dated 10, 13, 14 and 15.12.93 of the Bombay High Court in Confirmation Case No.1/93, Crl. A. No.2 & 89 of 1993)
(From the Judgment and Order dated 10, 13, 14 and 15.12.93 of the Bombay High Court in Confirmation Case No.1/93, Crl. A. No.2 & 89 of 1993)
Petitioner: SK. Ayyub & Ors.
Respondent: State of Maharashtra
Apeal: Criminal Appeal Nos. 181-183 of 1994
(From the Judgment and Order dated 10, 13, 14 and 15.12.93 of the Bombay High Court in Confirmation Case No.1/93, Crl. A. No.2 & 89 of 1993)
(From the Judgment and Order dated 10, 13, 14 and 15.12.93 of the Bombay High Court in Confirmation Case No.1/93, Crl. A. No.2 & 89 of 1993)
Judges: K. JAYACHANDRA REDDY & YOGESHWAR DAYAL, JJ.
Date of Judgment: Nov 05, 1994
Appearances:
Mr. R. Daga, Mr. N.A. Badar, Mr. K.G. Bhangde and Mr. T.S. Arora, Advocates for the Appellants.
Mr. B.A. Masodkar, Senior Advocate Mr. S.M. Jadhav, for Mr. A.S. Bhasme, Advocates with him for the Respondent.
Head Note:
CRIMINAL LAW
Indian Penal Code
Sections 302, 149, 147 Murder of Police Officers – Sudden affair and not a result of pre-meditation – Death sentence reduced to life imprisonment.
Held:
Held that Ayyub was subjected to humiliation, made to sit or rather dumped in the narrow gap between passenger seat and driver seat in Auto Rikshaw and sincerely felt that he was being illegally arrested. However the whole thing happened in a sudden manner and Ayyub snatched the revolver in a confused manner from the deceased and he acted in unsteady way. It is not pre-mediated or cold blooded murder. Even though the accused acted in a high handed manner but that was only on a sudden impulse. The state of mind of the assailant has to be taken into account. No doubt the deceased was discharging his official duty but there are mitigating circumstances which strongly indicate that this is not one of the rarest of rare cases. We think that ends of justice will be met if the death sentence imposed against Ayyub is reduced to sentence of imprisonment for life. (Paras 9, 10)
Further held that the object of the unlawful assembly was to deter the police from discharging their duties, namely to arrest Ayyub- To that extent the Assembly was unlawful. None of the accused however shared the common object along with Ayyub to kill the deceased persons. In the split second when Ayyub suddenly snatched the revolver and started fixing, in the split second the other accused could not have developed an object which is common to that of Ayyub, namely to kill the two deceased persons. As a matter of fact in the F I R it is not stated that they caught hold of deceased No. 1. They cannot be held guilty under Sections 302/149 IPC. However they committed an offence punishable under sections 353/149 IPC and therefore their sentence was reduced from life imprisonment to R.I. for two years and fine of Rs. 10000/- and the total fine will be paid equally to the legal heirs of the deceased. (Para 7)
We do agree with the learned counsel for the State that such offences committed against the public servants while discharging their duties should be seriously viewed. We are very much conscious that the public servants should not be deterred or obstructed in an unlawful manner in discharging their official duties and anybody who commits an offence while causing such obstruction should, no doubt, severely be punished. But when it comes to the question of awarding sentence, there are many other circumstances which have to be taken into consideration before awarding death sentence. (Paras 8 & 9)
Cases Reffered:
1. Anguswamy and another v. State of Tamil Nadu, JT 1989 (2) SC 184 = 1989 (3) SCC 33. (Para 9)
2. Bachan Singh etc. v. State of Punjab etc., 1980 (2) SCC 684. (Para 8)
2. Bachan Singh etc. v. State of Punjab etc., 1980 (2) SCC 684. (Para 8)
JUDGEMENT:
K. JAYACHANDRA REDDY, J.:
1. Original accused nos. 1 to 4, 6, 12 to 14 and 23 are the appellants. They alongwith 14 others were tried for offences punishable under Sections 147, 148, 342/149, 225/149, 224, 302 2and 302 read with 34, 109 and 149 I.P.C. The trial court acquitted 14 others and convicted A-1, SK. Ayyub under Section 302 I.P.C. and sentenced him to death and convicted other appellants under Section 302/149 I.P.C. and sentenced them to imprisonment for life and to pay a fine of Rs. 200/- each in default of payment of which to undergo R.I. for three months. They were also convicted under Section 147 I.P.C. and sentenced to undergo R.I. for two years and to pay a fine of Rs. 200/- each in default of payment of which to undergo R.I. for three months. The appeals preferred by them were dismissed by the High Court. Hence the present appeals.
2. The prosecution case is as under:
Most of the accused are the residents of Village Naigaon, Taluka Babhulgaon, District Yavatmal and some of them are from the neighbouring villages. On 6.6.1990 Chandabai Kambale, P.W. 4, near the house of A-1. A-1 fully drunk came to her house and tried to molest her. He started abusing her in filthy language. P.W.4 rescued herself and came in open court-yard of her house and A-1 went away abusing her loudly. Subhash Kambale, the husband of P.W. 4 came a little later and she narrated the incident to him and he asked her to go and give a report to the police. P.W. 4 accordingly went and narrated the incident to the police and gave a report Ex. P.148 recorded by P.W.18, a Head Constable. Shri Deshmukh, Police Sub-Inspector, deceased no. 1 alongwith two Head Constables P.Ws, 3 and 7 and one Police Constable Shri Ramchandra Ingole, deceased no. 2, left the Police Station and reached Village Naigaon in an auto-rikshaw driven by P.W.5 and got down near the school. On seeing A-1, Shri Deshmukh, deceased no. 1 told him to accompany him as he was charged under Section 151 Cr.P.C. on the report of P.W. 4. A-1 was reluctant to accompany the policemen. However, they caught A-1 and made him sit on the passenger seat in the auto-rikshaw. At that time A-22, Afasanabi, the wife of A-1, came in front of the auto-rikshaw and asked Shri Deshmukh as to why her husband was being taken away. At that time there was a marriage in the house of A-17 and a number of persons had gathered in the marriage. A-22 told the persons gathered there that her husband was being taken away by police without any reason on the basis of a report given by a prostitute. A-2, A-17 and A-23 started running behind the auto-rikshaw pelting stones. A-11 was coming in the opposite direction and was driving his harrow. Seeing the mob behind the auto-rikshaw, he put the harrow on the road as an obstacle and the auto-rikshaw was stopped near the tamarind tree. Deceased no. 1 P.S.I., Shri Deshmukh and deceased no. 2, Police Constable Shri Ramchandra Ingole got down from the auto-rikshaw. A-1 was taken away from the auto-rikshaw by the accused persons. The two Head Constables were caught by four accused. A-2 went near deceased no. 1 and told him not to take his brother A-1 and the deceased no. 1 told that A-1 is arrested under Section 151 Cr.P.C. and that he would be released on bail from the Tehsil Office, Babhulgaon. All of a sudden, A-3 caught the waist of deceased no. 1 from back side and A-23 caught his right hand. A-1 who was taken away from the auto-rikshaw immediately rushed towards deceased no. 1 and asked him why he was being taken away on the report of a prostitute. A-1 snatched the revolver from the holster of deceased no. 1. At that time deceased no. 2 came near deceased no. 1 in order to rescue him. It is alleged that A-1 fired one shot which hit deceased no. 2 and he fell down and A-1 fired a second shot against deceased no. 1 and he missed and it hit A-23. A-1 fired a third shot which hit on the head of deceased no. 1. He also fell down. Thereafter releasing the two Head Constables, P.Ws. 3 and 7 the accused ran away towards Village Naigaon. P.W. 7 asked P.W.3 to go to the Police Station to lodge a report and accordingly a report was given. A-23 who was hurt alongwith his relatives also reached the Police Station. The Doctor, who examined deceased no. 1, declared him to be dead. P.W. 21, the Circle Police Inspector received a wireless message at about 4 P.M. and took over the investigation. He held the inquest over the dead bodies and sent the same for post-mortem. He examined P.Ws. 3,7 and other witnesses and arrested some of
the accused. He also seized some empty cartridges and after completion of the investigation, the charge-sheet was laid.
3. The prosecution examined P.Ws, 3,5,6 and 7 as eye-witnesses. The accused denied the offence and pleaded that in order to control the unruly mob, deceased no. 1 fired bullets and one of them hit A-23 and another hit deceased no. 2, the police constable and being afraid deceased no. 1 committed suicide by shooting himself in the head. The trial court convicted A-1 under section 302 I.P.C. holding that he caused the death of the two deceased persons and convicted the remaining appellants on the ground that they held the deceased and facilitated the commission of the offence by A-1 and thus they were liable under Sections 302/149 I.P.C. On the question of sentence, the trial court held that the case of A-1 comes under the category of rarest of rare cases and accordingly sentenced him to death and sentenced other accused to imprisonment for life as already mentioned. The sentence of death awarded against A-1 was referred for confirmation by the High Court and the State also filed an appeal for enhancement of sentence of accused nos. 2,3,14 and 23 and the convicted accused preferred separate appeal. The High Court confirmed the death sentence and dismissed other appeals by a common judgment.
4. Learned counsel for the appellants submitted that the two deceased persons and other members of the police party behaved in a high-handed manner and took A-1 in custody and wanted to take him away when he and several others had gathered in the house of A-17 to attend the marriage and that A-22 pleaded that her husband is being arrested and taken away for no fault of his and even assuming that the evidence of the eye-witnesses is to be accepted, the accused cannot be held liable for the offence of murder. He also submitted that in the circumstances of the case, the death sentence imposed against A-1 is not warranted and that remaining accused cannot be convicted under Sections 302/149 I.P.C. inasmuch as they have not caused hurt to anybody and that shooting by A-1 was his individual act which was sudden and therefore there is no question of the remaining accused sharing the common object to commit the murders of deceased nos. 1 and 2.
5. There cannot be any doubt about the report Ex.p. 148 given by P.W.4 against A-1 alleging that he tried to molest her. It was only because of the said report that deceased nos. 1 and 2 alongwith P.Ws. 3 and 7 came to Village Naigaon where this unfortunate incident happened. The plea of the accused that deceased no. 1 fired at the mob and in that process A-23 and deceased no. 2 received injuries and that A-1 committed suicide is highly artificial and has been rightly rejected. Learned counsel for the appellants also could not seriously assail the evidence of the eye-witnesses. We have gone through the evidence of these witnesses and they are not shaken in any way in the cross-examination and their evidence has rightly been accepted by both the courts below.
6. First we will consider whether the conviction of accused nos. 2 to 4, 6, 12 to 14 and 23 under Sections 302/149 I.P.C. can be sustained? P.W. 3 gave the earliest report about the occurrence. In that he stated that he himself, P.W. 7 and deceased nos. 1 and 2 went to the Village in an auto-rikshaw and that they wanted to arrested Ayyub, A-1. He avoided the arrest and committed an attack on them accompanied by 10 to 12 persons and that A-1 snatched away the loaded revolver from deceased no. 1 and opened fire as a result of which deceased nos. 1 and 2 received bullet
injuries. He has not stated that any one of the other accused caught hold of deceased no. 1. Now coming to his present deposition he has given a number of details. He deposed that when they were taking Ayyub, A-1 in an auto-rikshaw after arrest, a number of people ran behind the auto-rikshaw and ultimately they succeeded in stopping the auto-rikshaw and that A-3 all of a sudden caught hold of waist of the deceased from the back side and A-23 caught the right hand of deceased no. 1 and that A-12 and A-13 pulled deceased no. 1 from the auto-rikshaw and two other persons caught hold of P.W. 7 and that A-12 and A-13 dragged P.W. 3 near the tamarind tree. He further deposed that A-1 became angry and rushed towards deceased no. 1 and asked him as to why he was taking him on the report of a prostitute and he snatched the revolver from the holster of deceased no. 1 and fired and caused injuries to deceased nos. 1 and 2 and also to A-23, as already mentioned.
7. It can thus be seen that part attributed to accused nos. 2 to 4, 6, 12 to 14 and 23 that some of them caught hold of the deceased, is a development which is not mentioned in the earliest report. The evidence of other witnesses also is to the same effect. Even taking this evidence to be true, it is difficult to hold that the common object of the unlawful assembly was to commit the murders and that the other appellants shared the same alongwith A-1. The facts mentioned above are clearly to the effect that it was a sudden act on the part of A-1 who snatched the revolver and shot at the police party. No other accused participated in any manner in the attack on deceased nos. 1 and 2 nor they have caused any injury to P. W. 7 and other constables. It is therefore clear that the object of the unlawful assembly was to deter the police from discharging their duties namely to arrest A-1. The High Court, as a matter of fact, observed that the behaviour of the mob shows that they wanted anyhow to release A-1 from the custody of the police and that initially the common object of the unlawful assembly was to get him released and to that extent it was unlawful. While considering whether the common object of the unlawful assembly was to commit murders also, the High Court observed that though the accused were knowing that A-1 had fired the first bullet, yet they did not set free deceased no. 1 and the two Head Constables and thereby they helped A-1 to achieve his target and consequently they must be held to have shared the common object alongwith A-1 to kill the deceased persons. We think that this reasoning is not correct. As mentioned above, A-1 suddenly snatched the revolver and started firing at deceased nos. 1 and 2 and in that split second the other accused could not have developed an object which is common to that of A-1 namely to kill the two deceased persons. As a matter of fact in the F.I.R. it is not stated that they caughthold of deceased no. 1. Under these circumstances they cannot be held guilty under Sections 302/149 I.P.C. The common object was only to get A-1 released from the police custody and thereby they committed an offence punishable under Sections 353/149 I.P.C.
8. Next coming to the case of A-1, the prosecution has established beyond all reasonable doubt that he fired at deceased nos. 1 and 2 as a result of which they unfortunately died. The question is whether his case comes under the category of rarest of rare case for awarding death sentence. This Court in Bachan Singh etc. v. State of Punjab etc. (1980) 2 SCC 684 has considered this aspect and has given certain guidelines for awarding death sentence and has also indicated certain mitigating circumstances which are to be taken into account. Some of them read as under:
“Mitigating Circumstances – In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:-
(1) That the offence was committed under the influence of ex treme mental or emotional disturbance.
xx xx xxxx
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
(4) The probability that the accused can be reformed and reha bilitated.
The Constitution Bench in the above case further stated thus:
“In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”
The Constitution Bench also indicated certain aggravating circumstances which are to be taken into account and the same reads as under:
“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requiring his assis tance under Section 37 and section 129 of the said Code.”
However, it is cautioned that:
“Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”
The trial court has referred to some of these aggravating circumstances which can be taken into account in awarding death sentence. No doubt, deceased no. 1 was discharging his official duty but there are mitigating circumstances which strongly indicate that this is not one of the rarest of rare cases.
9. In the instant case, a marriage was taking place in the Village where A-1 and several other accused gathered to attend the same. This unfortunate incident took place because of a trivial but unpleasant incident. A-1 is neighbour of P.W. 4 whose husband Subhash Kambale was distilling illicit liquor and on that day A-1 in somewhat drunken condition went to the house of P.W. 4 and asked her to serve some more liquor. P.W. 4 stated that she does not know where her husband has gone and that there was no liquor in the house. A quarrel ensued and A-1 is alleged to have abused P.W. 4 and then caught hold of her right hand in that drunken condition. P.W.4 jerked off his hand and came out. In the meanwhile, her husband came and she narrated the incident to him and both of them went to the police station and the police came to arrest A-1 and tried to take him to the police station in that manner, as mentioned above. In the cross-examination, P.W. 4 admitted that she was not married to Subhash Kambale but she was living with him as his wife. A-22, the wife of A-1, as a matter of fact protested that her husband was being arrested and taken away in a high-handed manner on a report given by a prostitute. Then, as mentioned above, the whole thing happened in a sudden manner. In such a situation, the state of mind of the assailant has also to be taken into account. As a matter of fact, before the courts below, the learned counsel for the defence has referred to certain aspects in the evidence of the eye-witnesses namely that A-1 was subjected to humiliation. The evidence of P.W.5, the auto-rikshaw driver, shows that A-1 was made to sit or rather dumped in the narrow gap between passenger seat and driver seat. Apart from that A-1 sincerely felt that he was being illegally arrested. Even, according to the prosecution case, the police came to arrest the accused only under Section 151 Cr. P.C. No doubt the police have ample power under Section 151 Cr.P.C. to arrest and there is nothing illegal about it. But we are only referring to this aspect to assess the state of mind of A-1 at the time of occurrence coupled with the surrounding circumstances. Further it is rather important to note that it was a sudden affair and not a result of pre-meditation. As a matter of fact, even the trial court held thus:
“There is no evidence on record to show that the accused persons had premeditated plan to commit the murder of Shri Deshmukh and Ingole nor there was a meeting of mind. On the contrary, it has come on record that the common object of unlawfully assembly formed at the spur of moment and thereby the accused Ayyub (A-1) succeeded in killing Shri Deshmukh and Ingole by revolver firing. Under such circumstances, it could not be said that the accused persons had common intention.
It must also be noted that A-1 appears to have used the weapon in a confused manner after snatching the same from deceased no. 1. The fact that one of the shots hit A-23 itself shows the unsteady way in which A-1 must have acted. It is not pre-meditated or cold-blooded murders and it is clear that A-1 has acted in a high-handed manner but that was only on a sudden impulse in the circumstances mentioned above. In Anguswamy and another v. State of Tamil Nadu, (1989 (3) SCC 33, a police constable was murdered but according to the facts of the case, the deceased acted over-zealously in chasing and attempting to apprehend the appellants who inflicted fatal injuries on the deceased police constable in a sudden desire to release themselves from the grip and not in a pre-planned manner. Considering whether the death sentence was warranted in the circumstances, this Court observed as under:
“No report was made against the appellants for their provocative behaviour and no case was registered against them for the commission of any cognizable offence. The deceased acted over- zealously and attempted to apprehend the appellants. As the earlier incident had passed off, the appellants were perhaps unable to fathom the reason for their attempted arrest and therefore tried to wriggle out from the clutches of the deceased by the use of force. Since the appellants felt that they were being unjustly treated by the deceased, they in order to free themselves attacked the deceased and caused the injuries. It cannot be said the attack was a pre-planned one. It was rather sudden and actuated by a desire to free themselves. It therefore, follows that the murder cannot be said to belong to the rarest of rate category warranting the sentence of death.”
We do agree with the learned counsel for the State that such offences committed against the public servants while discharging their duties should be seriously viewed. We are very much conscious that the public servants should not be deterred or obstructed in an unlawful manner in discharging their official duties and anybody who commits an offence while causing such obstruction should, no doubt, severely be punished. But when it comes to the question of awarding sentence, there are many other circumstances which have to be taken into consideration before awarding death sentence.
10. Having given our earnest consideration, we think that the ends of justice will be met if the death sentence imposed against A-1 is reduced to sentence of imprisonment for life. In the result the conviction of A-1, Ayyub under Section 302 I.P.C. is confirmed but sentence of death is reduced to one of imprisonment for life. In addition he shall pay a fine of Rs. 20,000/-. The conviction of the remaining accused nos. 2 to 4, 6, 12 to 14 and 23 under Sections 302/149 I.P.C. and sentence of imprisonment for life awarded thereunder are set aside. Instead each of them is convicted under Section 353/149 I.P.C. and sentenced to undergo R.I. for two years and each of them is further sentenced to pay a fine of Rs. 10,000/- each. However, their conviction under Section 147 I.P.C. and sentence of two years R.I. and the fine alongwith default clause are confirmed. Thus the total fine comes to Rs. 1,01,600/-. The same shall be paid equally to the legal heirs of deceased nos. 1 and 2 and if the appellants fail to pay the amount of fine within three months from today, the same shall be recovered as provided under Section 357 read with Section 431 Cr.P.C. In the result the appeals are partly allowed.
1. Original accused nos. 1 to 4, 6, 12 to 14 and 23 are the appellants. They alongwith 14 others were tried for offences punishable under Sections 147, 148, 342/149, 225/149, 224, 302 2and 302 read with 34, 109 and 149 I.P.C. The trial court acquitted 14 others and convicted A-1, SK. Ayyub under Section 302 I.P.C. and sentenced him to death and convicted other appellants under Section 302/149 I.P.C. and sentenced them to imprisonment for life and to pay a fine of Rs. 200/- each in default of payment of which to undergo R.I. for three months. They were also convicted under Section 147 I.P.C. and sentenced to undergo R.I. for two years and to pay a fine of Rs. 200/- each in default of payment of which to undergo R.I. for three months. The appeals preferred by them were dismissed by the High Court. Hence the present appeals.
2. The prosecution case is as under:
Most of the accused are the residents of Village Naigaon, Taluka Babhulgaon, District Yavatmal and some of them are from the neighbouring villages. On 6.6.1990 Chandabai Kambale, P.W. 4, near the house of A-1. A-1 fully drunk came to her house and tried to molest her. He started abusing her in filthy language. P.W.4 rescued herself and came in open court-yard of her house and A-1 went away abusing her loudly. Subhash Kambale, the husband of P.W. 4 came a little later and she narrated the incident to him and he asked her to go and give a report to the police. P.W. 4 accordingly went and narrated the incident to the police and gave a report Ex. P.148 recorded by P.W.18, a Head Constable. Shri Deshmukh, Police Sub-Inspector, deceased no. 1 alongwith two Head Constables P.Ws, 3 and 7 and one Police Constable Shri Ramchandra Ingole, deceased no. 2, left the Police Station and reached Village Naigaon in an auto-rikshaw driven by P.W.5 and got down near the school. On seeing A-1, Shri Deshmukh, deceased no. 1 told him to accompany him as he was charged under Section 151 Cr.P.C. on the report of P.W. 4. A-1 was reluctant to accompany the policemen. However, they caught A-1 and made him sit on the passenger seat in the auto-rikshaw. At that time A-22, Afasanabi, the wife of A-1, came in front of the auto-rikshaw and asked Shri Deshmukh as to why her husband was being taken away. At that time there was a marriage in the house of A-17 and a number of persons had gathered in the marriage. A-22 told the persons gathered there that her husband was being taken away by police without any reason on the basis of a report given by a prostitute. A-2, A-17 and A-23 started running behind the auto-rikshaw pelting stones. A-11 was coming in the opposite direction and was driving his harrow. Seeing the mob behind the auto-rikshaw, he put the harrow on the road as an obstacle and the auto-rikshaw was stopped near the tamarind tree. Deceased no. 1 P.S.I., Shri Deshmukh and deceased no. 2, Police Constable Shri Ramchandra Ingole got down from the auto-rikshaw. A-1 was taken away from the auto-rikshaw by the accused persons. The two Head Constables were caught by four accused. A-2 went near deceased no. 1 and told him not to take his brother A-1 and the deceased no. 1 told that A-1 is arrested under Section 151 Cr.P.C. and that he would be released on bail from the Tehsil Office, Babhulgaon. All of a sudden, A-3 caught the waist of deceased no. 1 from back side and A-23 caught his right hand. A-1 who was taken away from the auto-rikshaw immediately rushed towards deceased no. 1 and asked him why he was being taken away on the report of a prostitute. A-1 snatched the revolver from the holster of deceased no. 1. At that time deceased no. 2 came near deceased no. 1 in order to rescue him. It is alleged that A-1 fired one shot which hit deceased no. 2 and he fell down and A-1 fired a second shot against deceased no. 1 and he missed and it hit A-23. A-1 fired a third shot which hit on the head of deceased no. 1. He also fell down. Thereafter releasing the two Head Constables, P.Ws. 3 and 7 the accused ran away towards Village Naigaon. P.W. 7 asked P.W.3 to go to the Police Station to lodge a report and accordingly a report was given. A-23 who was hurt alongwith his relatives also reached the Police Station. The Doctor, who examined deceased no. 1, declared him to be dead. P.W. 21, the Circle Police Inspector received a wireless message at about 4 P.M. and took over the investigation. He held the inquest over the dead bodies and sent the same for post-mortem. He examined P.Ws. 3,7 and other witnesses and arrested some of
the accused. He also seized some empty cartridges and after completion of the investigation, the charge-sheet was laid.
3. The prosecution examined P.Ws, 3,5,6 and 7 as eye-witnesses. The accused denied the offence and pleaded that in order to control the unruly mob, deceased no. 1 fired bullets and one of them hit A-23 and another hit deceased no. 2, the police constable and being afraid deceased no. 1 committed suicide by shooting himself in the head. The trial court convicted A-1 under section 302 I.P.C. holding that he caused the death of the two deceased persons and convicted the remaining appellants on the ground that they held the deceased and facilitated the commission of the offence by A-1 and thus they were liable under Sections 302/149 I.P.C. On the question of sentence, the trial court held that the case of A-1 comes under the category of rarest of rare cases and accordingly sentenced him to death and sentenced other accused to imprisonment for life as already mentioned. The sentence of death awarded against A-1 was referred for confirmation by the High Court and the State also filed an appeal for enhancement of sentence of accused nos. 2,3,14 and 23 and the convicted accused preferred separate appeal. The High Court confirmed the death sentence and dismissed other appeals by a common judgment.
4. Learned counsel for the appellants submitted that the two deceased persons and other members of the police party behaved in a high-handed manner and took A-1 in custody and wanted to take him away when he and several others had gathered in the house of A-17 to attend the marriage and that A-22 pleaded that her husband is being arrested and taken away for no fault of his and even assuming that the evidence of the eye-witnesses is to be accepted, the accused cannot be held liable for the offence of murder. He also submitted that in the circumstances of the case, the death sentence imposed against A-1 is not warranted and that remaining accused cannot be convicted under Sections 302/149 I.P.C. inasmuch as they have not caused hurt to anybody and that shooting by A-1 was his individual act which was sudden and therefore there is no question of the remaining accused sharing the common object to commit the murders of deceased nos. 1 and 2.
5. There cannot be any doubt about the report Ex.p. 148 given by P.W.4 against A-1 alleging that he tried to molest her. It was only because of the said report that deceased nos. 1 and 2 alongwith P.Ws. 3 and 7 came to Village Naigaon where this unfortunate incident happened. The plea of the accused that deceased no. 1 fired at the mob and in that process A-23 and deceased no. 2 received injuries and that A-1 committed suicide is highly artificial and has been rightly rejected. Learned counsel for the appellants also could not seriously assail the evidence of the eye-witnesses. We have gone through the evidence of these witnesses and they are not shaken in any way in the cross-examination and their evidence has rightly been accepted by both the courts below.
6. First we will consider whether the conviction of accused nos. 2 to 4, 6, 12 to 14 and 23 under Sections 302/149 I.P.C. can be sustained? P.W. 3 gave the earliest report about the occurrence. In that he stated that he himself, P.W. 7 and deceased nos. 1 and 2 went to the Village in an auto-rikshaw and that they wanted to arrested Ayyub, A-1. He avoided the arrest and committed an attack on them accompanied by 10 to 12 persons and that A-1 snatched away the loaded revolver from deceased no. 1 and opened fire as a result of which deceased nos. 1 and 2 received bullet
injuries. He has not stated that any one of the other accused caught hold of deceased no. 1. Now coming to his present deposition he has given a number of details. He deposed that when they were taking Ayyub, A-1 in an auto-rikshaw after arrest, a number of people ran behind the auto-rikshaw and ultimately they succeeded in stopping the auto-rikshaw and that A-3 all of a sudden caught hold of waist of the deceased from the back side and A-23 caught the right hand of deceased no. 1 and that A-12 and A-13 pulled deceased no. 1 from the auto-rikshaw and two other persons caught hold of P.W. 7 and that A-12 and A-13 dragged P.W. 3 near the tamarind tree. He further deposed that A-1 became angry and rushed towards deceased no. 1 and asked him as to why he was taking him on the report of a prostitute and he snatched the revolver from the holster of deceased no. 1 and fired and caused injuries to deceased nos. 1 and 2 and also to A-23, as already mentioned.
7. It can thus be seen that part attributed to accused nos. 2 to 4, 6, 12 to 14 and 23 that some of them caught hold of the deceased, is a development which is not mentioned in the earliest report. The evidence of other witnesses also is to the same effect. Even taking this evidence to be true, it is difficult to hold that the common object of the unlawful assembly was to commit the murders and that the other appellants shared the same alongwith A-1. The facts mentioned above are clearly to the effect that it was a sudden act on the part of A-1 who snatched the revolver and shot at the police party. No other accused participated in any manner in the attack on deceased nos. 1 and 2 nor they have caused any injury to P. W. 7 and other constables. It is therefore clear that the object of the unlawful assembly was to deter the police from discharging their duties namely to arrest A-1. The High Court, as a matter of fact, observed that the behaviour of the mob shows that they wanted anyhow to release A-1 from the custody of the police and that initially the common object of the unlawful assembly was to get him released and to that extent it was unlawful. While considering whether the common object of the unlawful assembly was to commit murders also, the High Court observed that though the accused were knowing that A-1 had fired the first bullet, yet they did not set free deceased no. 1 and the two Head Constables and thereby they helped A-1 to achieve his target and consequently they must be held to have shared the common object alongwith A-1 to kill the deceased persons. We think that this reasoning is not correct. As mentioned above, A-1 suddenly snatched the revolver and started firing at deceased nos. 1 and 2 and in that split second the other accused could not have developed an object which is common to that of A-1 namely to kill the two deceased persons. As a matter of fact in the F.I.R. it is not stated that they caughthold of deceased no. 1. Under these circumstances they cannot be held guilty under Sections 302/149 I.P.C. The common object was only to get A-1 released from the police custody and thereby they committed an offence punishable under Sections 353/149 I.P.C.
8. Next coming to the case of A-1, the prosecution has established beyond all reasonable doubt that he fired at deceased nos. 1 and 2 as a result of which they unfortunately died. The question is whether his case comes under the category of rarest of rare case for awarding death sentence. This Court in Bachan Singh etc. v. State of Punjab etc. (1980) 2 SCC 684 has considered this aspect and has given certain guidelines for awarding death sentence and has also indicated certain mitigating circumstances which are to be taken into account. Some of them read as under:
“Mitigating Circumstances – In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:-
(1) That the offence was committed under the influence of ex treme mental or emotional disturbance.
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(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
(4) The probability that the accused can be reformed and reha bilitated.
The Constitution Bench in the above case further stated thus:
“In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”
The Constitution Bench also indicated certain aggravating circumstances which are to be taken into account and the same reads as under:
“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requiring his assis tance under Section 37 and section 129 of the said Code.”
However, it is cautioned that:
“Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”
The trial court has referred to some of these aggravating circumstances which can be taken into account in awarding death sentence. No doubt, deceased no. 1 was discharging his official duty but there are mitigating circumstances which strongly indicate that this is not one of the rarest of rare cases.
9. In the instant case, a marriage was taking place in the Village where A-1 and several other accused gathered to attend the same. This unfortunate incident took place because of a trivial but unpleasant incident. A-1 is neighbour of P.W. 4 whose husband Subhash Kambale was distilling illicit liquor and on that day A-1 in somewhat drunken condition went to the house of P.W. 4 and asked her to serve some more liquor. P.W. 4 stated that she does not know where her husband has gone and that there was no liquor in the house. A quarrel ensued and A-1 is alleged to have abused P.W. 4 and then caught hold of her right hand in that drunken condition. P.W.4 jerked off his hand and came out. In the meanwhile, her husband came and she narrated the incident to him and both of them went to the police station and the police came to arrest A-1 and tried to take him to the police station in that manner, as mentioned above. In the cross-examination, P.W. 4 admitted that she was not married to Subhash Kambale but she was living with him as his wife. A-22, the wife of A-1, as a matter of fact protested that her husband was being arrested and taken away in a high-handed manner on a report given by a prostitute. Then, as mentioned above, the whole thing happened in a sudden manner. In such a situation, the state of mind of the assailant has also to be taken into account. As a matter of fact, before the courts below, the learned counsel for the defence has referred to certain aspects in the evidence of the eye-witnesses namely that A-1 was subjected to humiliation. The evidence of P.W.5, the auto-rikshaw driver, shows that A-1 was made to sit or rather dumped in the narrow gap between passenger seat and driver seat. Apart from that A-1 sincerely felt that he was being illegally arrested. Even, according to the prosecution case, the police came to arrest the accused only under Section 151 Cr. P.C. No doubt the police have ample power under Section 151 Cr.P.C. to arrest and there is nothing illegal about it. But we are only referring to this aspect to assess the state of mind of A-1 at the time of occurrence coupled with the surrounding circumstances. Further it is rather important to note that it was a sudden affair and not a result of pre-meditation. As a matter of fact, even the trial court held thus:
“There is no evidence on record to show that the accused persons had premeditated plan to commit the murder of Shri Deshmukh and Ingole nor there was a meeting of mind. On the contrary, it has come on record that the common object of unlawfully assembly formed at the spur of moment and thereby the accused Ayyub (A-1) succeeded in killing Shri Deshmukh and Ingole by revolver firing. Under such circumstances, it could not be said that the accused persons had common intention.
It must also be noted that A-1 appears to have used the weapon in a confused manner after snatching the same from deceased no. 1. The fact that one of the shots hit A-23 itself shows the unsteady way in which A-1 must have acted. It is not pre-meditated or cold-blooded murders and it is clear that A-1 has acted in a high-handed manner but that was only on a sudden impulse in the circumstances mentioned above. In Anguswamy and another v. State of Tamil Nadu, (1989 (3) SCC 33, a police constable was murdered but according to the facts of the case, the deceased acted over-zealously in chasing and attempting to apprehend the appellants who inflicted fatal injuries on the deceased police constable in a sudden desire to release themselves from the grip and not in a pre-planned manner. Considering whether the death sentence was warranted in the circumstances, this Court observed as under:
“No report was made against the appellants for their provocative behaviour and no case was registered against them for the commission of any cognizable offence. The deceased acted over- zealously and attempted to apprehend the appellants. As the earlier incident had passed off, the appellants were perhaps unable to fathom the reason for their attempted arrest and therefore tried to wriggle out from the clutches of the deceased by the use of force. Since the appellants felt that they were being unjustly treated by the deceased, they in order to free themselves attacked the deceased and caused the injuries. It cannot be said the attack was a pre-planned one. It was rather sudden and actuated by a desire to free themselves. It therefore, follows that the murder cannot be said to belong to the rarest of rate category warranting the sentence of death.”
We do agree with the learned counsel for the State that such offences committed against the public servants while discharging their duties should be seriously viewed. We are very much conscious that the public servants should not be deterred or obstructed in an unlawful manner in discharging their official duties and anybody who commits an offence while causing such obstruction should, no doubt, severely be punished. But when it comes to the question of awarding sentence, there are many other circumstances which have to be taken into consideration before awarding death sentence.
10. Having given our earnest consideration, we think that the ends of justice will be met if the death sentence imposed against A-1 is reduced to sentence of imprisonment for life. In the result the conviction of A-1, Ayyub under Section 302 I.P.C. is confirmed but sentence of death is reduced to one of imprisonment for life. In addition he shall pay a fine of Rs. 20,000/-. The conviction of the remaining accused nos. 2 to 4, 6, 12 to 14 and 23 under Sections 302/149 I.P.C. and sentence of imprisonment for life awarded thereunder are set aside. Instead each of them is convicted under Section 353/149 I.P.C. and sentenced to undergo R.I. for two years and each of them is further sentenced to pay a fine of Rs. 10,000/- each. However, their conviction under Section 147 I.P.C. and sentence of two years R.I. and the fine alongwith default clause are confirmed. Thus the total fine comes to Rs. 1,01,600/-. The same shall be paid equally to the legal heirs of deceased nos. 1 and 2 and if the appellants fail to pay the amount of fine within three months from today, the same shall be recovered as provided under Section 357 read with Section 431 Cr.P.C. In the result the appeals are partly allowed.
