Holding

The Supreme Court upheld the convictions, altered the death sentence of Shiv Prakash Pandey to life imprisonment, and affirmed the death sentence of Shobhit Chamar as a rarest of rare case.

Summary

The appellants, Shiv Prakash Pandey (A‑1) and Shobhit Chamar (A‑2), were convicted under IPC Sections 302, 149, 380 and 460 and under Section 27 of the Arms Act for the murder of six male members of a family, including two children, during a dacoity in Rohtas district, Bihar. They challenged the convictions on the ground of non‑compliance of Section 313 CrPC (recording of statements) and Section 235(2) CrPC (hearing on sentence), alleging prejudice. The Supreme Court held that the eye‑witness testimony was reliable, the procedural lapses did not cause prejudice, and therefore the convictions stand. It further examined the "rarest of rare" doctrine, concluding that A‑2’s conduct warranted death, while A‑1’s lesser degree of brutality merited life imprisonment. Consequently, the death sentence for A‑2 was affirmed, the death sentence for A‑1 was commuted to life imprisonment, and the appeals were dismissed.

Issues considered

The adequacy of compliance with Section 313 CrPC in recording the accused's statements and whether any prejudice resulted.
The compliance with Section 235(2) CrPC regarding hearing the accused on the question of sentence.
Whether the death penalty is justified for both appellants under the "rarest of rare" doctrine.
The appropriate quantum of punishment for each appellant based on degree of complicity and brutality.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 235(2), s. 313, s. 366
Indian Penal Code, 1860s. 149, s. 302, s. 380, s. 460

Subjects

murderdacoitydeath penaltyrarest of rareSection 302 IPCSection 149 IPCSection 313 CrPCSection 235 CrPClife imprisonmentprocedural irregularities

Judgment

- - - - - --···- - -

SHOBHIT CHAMAR AND ANR. A
v. \
STATE OF BIHAR

MARCH 4,1998

[G.T NANAVATI AND S.P. KURDUKAR, JJ.) B

Indian Penal Code.~ 1860-Section 302-Muder-Rarest of rare case-
Conviction of appellants (A-2 and A-1) under Sections 3021149, 380 and
460 for committing dacoity and murder ofall the six male members ofa family
including two minor childem of 8 years and JO.years-A-I was awarded C
death sentence on the basis ofgeneral 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 ofA-2 only will
fall in the category of rarest of rare case-Death sentence aWarded by the
courts below, upheld-Sentence ofA-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
G
opportunity ofbeing heard on the question ofsentence-After convicting, the
accused was remanded to judicial custody for a week and after that giving
them full opportunity ofbeing heard and also after folly hearing the Advocate
for the accused, passed the death sentence-Held, no prejudice was caused
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 of
Section 313 Cr PC first time in this appeal cannot be entertained unless the
appellants demonstrate that prejudice has been caused to them. In the present
case, the prosecution strongly relied upon the ocular ·evidence of the eye
witnesses and relevant question with reference to this evidence were put to
the appellants. If the evidence of these witnesses is found acceptable, the
H conviction can be sustained unless it is shown by the appellants that a
\c
SHOBHIT CHAMAR v. STATE OF BIHAR 119

prejudice has been caused by them. No such prejudice was demonstrated. A
[129-G-H; 130-A]
~ Rama Shanker Singh v. State of West Bengal, AIR (1962) SC; (1962)
2 Crl LJ 296; Suresh Chandra Bahri v. State of Bihar, 11995] Supp. 1 SCC
80 and Bijoy Chandra Patra v. State of West of Bengal, 11952] SCR 202,
relied on. B
Tara Singh v. State, (1951 I SCR 729; Ajmer Singh v. State of Punjab,
[1953] SCR ·418; State of Maharashtra v. Sukhdav Singh, (1992] 3 SCC 700
and Bha/inder Singh v. State of Punjab, [1~94] 1 SCC 726, distinguished.
2. In this case the triid court after pronouncing the judgment of
conviction, remanded both the appellants· to judicial custody for a week and C
they were given full opportunity of being heard on the question of sentence.
The Advocate. for the appellants was also heard fully on the question of
sentence. (125-E-G]
Santa Singh v. State of Punjab, (1976] 4 SCC 190 and Allaudin Mian
v. State. of Bihar, (1989] 3 sec 5, .distinguished. D
_,,__ 3.1. In the face of the evidence, a distinction based on the degree of
complicity and brutality will have to be drawn which has got a yital impact
in awarding the sentence. It is well settled that while awarding the sentence,
the court has to bear in mind the crime and the criminal. (134-H; 135-A)
3;2. A-2 was the principal offender/miscreant who fired from his
E
firearm on all the six persons including the two innocent children. He had
a deep-rooted desire for revenge based upon suspicion about the muders of
his brother and nephew by one of the family members of the deceased
persons which prompted him to take revenge against the deceased and had
gone to the extent of killing the six deceased in a most brutal, heinous and F
barbaric manner. Nothing was suggested to the eyewitnesses on behalf of A-
·2 that any of these deceased persons had" played any role in ·committing the
murders of his brother and nephew and at any rate havi1,1g regard to the ages
of two minor children (10 years and 8 year) it could not even be remotely
suspected that they could be the assailants. A-2 wanted not only to teach a G
lesson to the. family members of the person against whom he had grudge but
also to create terror in the minds of the family members to satisfy his ego
and muscle power. A-2 exhibited most inhuman conduct while rejoicing in
his victory after commission of the crime. In this background the trial court
as :well as the High Court have committed no error in awarding death
sentence to him. [135-D-Gl H
120 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 3.3. A-1 who was not related to A-2 might not be suffering from the
same degree of revenge and brutality as A-2 had. With this distinction, the
case of A-1 will not fall in the category of rarest of rare cases. Therefore,
death sentence awarded to him was not justified having regard to the facts
and circumstances of the case. The death sentence awarded to him the courts
B below is altered to one of life imprisonment. [135-B-DJ

Shiv Ram v. State of UP., )1998) 1 SCC 149, relied on.

Bachan Singh v. State of Punjab, [1980) 2 ·sec
684; Machhi Singh
v. State of Punjab, [1983) 3 SCC 470 and Dhananjoy Chatterjee v. State of
C West Bengal, [1994) 2 SCC 220, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I OS4 of 1997 Etc.

From the Judgment and Order dated 26.9.97 of the Patna High Court in
D Crl A.No. 186 of 1996.

R.K. Jain, Ajay Bhalla and Ms. Abba R. Sharma for the Appellant.

Ranjit Kumar and B.B. Singh for the Respondent.

E The Judgment of the Court was delivered by

S.P.. KURDUKAR. J. The two condemned prisoners/appellants, namely?
Shiv Prakash Pandey (A-1) and Shobhit Chamar (A-2) had initially sent a
petition through jail to this Court which was registered as Special Leave
F Petition (Crl.) No. 3576 of 1997 wherein leave was granted and a Criminal
Appeal No. I 084 of 1997 came to be registered. In the meantime, the condemned
prisoners filed Special Leave Petition (Crl.) Nos. 3729-30of1997 through their
Advocate against the very same judgment and order of conviction passed by
the High Court of Patna, hence Leave is granted herein as well. Since both
these Criminal Appeals are filed by the condemned prisoners challenging the
G legality and correctness of the judgment of the High Court wherein the death
sentence of both the appellants for committing six murders is confirmed, they
are being disposed of by this common judgment.

2. The prosecution story unfolded at the trial is as under:-

H Jagamath Pandey (since deceased) was the resident of village Tirojpur
\
'l.
SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J.] 121
under police station Durgawati, district Rohtas. He owned a house and an A
agricultural land having a bore well and a chamber room. The occurrence in
the present case took place in his residential house during the night intervening
between January l and 2, 1989 at about 1.00 a.m. Haridwar Pandey is the son
of Jagamath Pandey. On the date of incident, Jagarnath Pandey and his son
Ram Iqbal Pandey (both deceased) went to the chamber (room) for sleeping
during that night. Besides Haridwar Pandey and Ram Iqbal Pandey, the family B
of Jagarnath Pandey was consisted of Taranath Pandey, a cousin (since
deceased), Mahendra Pandey, nephew (since deceased), Anil Pandey 10 years
old and Sunil Pandey, 8 years old, grand sons (since deceased) and other
female members.

They were in the house. After evening meals, all these persons went C
to sleep in their respective rooms. At about mid night, Bhajurama Devi (PW
2) who was sleeping in her room heard the knock on the door and a call from
Ram Iqbal Pandey requesting her to open the door as he was feeling thirsty.
Bhajurama Devi (PW2) then opened the door in good faith but to her surprise,
she saw 15 to 20 miscreants who forcibly entered into the house. All these D
miscreants then started knocking the door of a room where Lalmuni Devi (PW
6), infonpant, was sleeping. By then she realised that some dacoits had
entered into the house. They continued to knock the door and also started
abusing the inmates. When she opened the door, 4 to 5 dacoits entered into
her room. Lalmuni Devi (PW 6) apprehending danger came out of the room
and saw 15 to 20 dacoits armed with rifles had entered into her house and E
thereafter started collecting the valuables from rooms and putting them into
bundles. She then spotted her father-in-law Jagamath Pandey and Ram Iqbal
Pandey in the courtyard with their hands tied from behind. Lalmuni Devi (PW
6) immediately took her children and other family members inside another
room called Dumuha. Some of the dacoits then started asking the inmates of F
the house to disclose where the gun and the ornaments were kept otherwise
their children would be killed. Lalmuni Devi (PW 6) told that she did not know
about the gun and she requested the dacoits not to cause harm to any of the
family members. She identified Shiv Prakash Pandey (A-1), Shobhit Chamar
(A-2) and Ram Dular who was said to have been killed in encounter during
the pendency of trial. G
3. It is alleged by the prosecution that A-2 then started snatching the
two children, namely, Anil Pandey and Sunil Pandey from Lalmuni Devi (PW
6) and when she resisted, A-2 assaulted her with baton of the rifle and
snatched the children forcibly from her and brought them into the courtyard.
Shiv Prakash Pandey (A-I) and Shobhit Chamar (A-2) then fired from their H
122 SUPREME COURT REPORTS [1998) 2 S.C.R.

A guns killing Jagarnath Pandey and Ram Iqbal Pandey who collapsed due to
fire ann injuries on the ground and died on the spot. A-2 along with two or
three dacoits then went outside the house and after some time, came back
along with Taranath Pandey and Mahendra Pandey who were also gun down
in the courtyard. The two minor children were terribly scared and when they
started weeping, some of the dacoits said that they be spared. When they
B were let off, they went to Lalmuni Devi (PW 6) and sat on her lap. One of
the dacoits then said that these children should not be spared because when
they would grow, they might take the revenge and, therefore, they should also
be finished. A-2 then forcibly brought the children from Lalmuni Devi (PW
6) in the courtyard and thereafter miscreants fired at them. Both the children
C succumbed to the fire arm injuries ·and died on the spot. A-2 was then
enquiring about Haridwar, husband of Lalmuni Devi (PW 6) and asked her to
call him so that he would also be killed. A-2 then stated thafall male members
of the family of Haridwar should be finished so that he would be satisfied of
taking revenge of murders of his brother and a nephew. During this occurrence,
according to the prosecution, the dacoits also assaulted Bindu Devi (PW 4)
D wife of Ram Jqbal Pandey. After committing the six murders and assaulting
the female members of Jagarnath Pandey, the dacoits left the house with
valuables worth Rs. I 2.000 raising slogans 'Jai Durga Maa'.

4. Durgawati police station is situated at a distance of JO kilometers from
E the village Tirojpur . Lalmuni Devi (PW 6) went to the police station at about
6.30 a.m. on 2nd January, 1989 and loaded the FIR (Ex.5). The FIR sets out
all the details naming Shiv Prakash Pandey (A-1 ), Shobhit Chamar (A-2), Ram
Dular (A-3) and other unidentified dacoits. It is then· stated therein that
Shobhit Chamar (A-2) had nursed a grudge against her family as he suspected
that Haridwar was responsible for causing the murders of his brother and
F nephew.

5. After registering the Crime, Arun Shukla (PW 1I) who was incharge
of Durgawati police station left for the village and after reaching there,
commenced the investigation. After carrying out the inquest panchanama on
the six dead bodies, he sent them to Bhabhua Hospital for post mortem
G examination. The investigating officer thereafter carried out the necessary
investigation and also recorded the statements of various witnesses. After
completing the investigation, the appellants along with two other acquitted
accused, namely, Khobhru Chamar and Narad Chamar were sent up for trial
for offences punishable under Sections 302/149, 380 and 460 of the Indian
H Penal Code and 27 of the Anns Act.
SHOBHIT CHAMAR v. STA TE OF BIHAR [S.P. KURDUKAR, J.] 123

6. The appellants denied the allegations levelled against them and A
pleaded that they were innocent and did not know anything about the incident.
They also pleaded that they have been falsely implicated in the present crime
due to animosity. They also brought on record the copy of the complaint
lodged by Gohni Kaur, the wife of elder brother of A-2 filed against Haridwar,
Ram Iqbal Pandey and others in connection with the murder of her husband. B
Certain other documents were also brought on record to show the enmity
between the family of Haridwar and the accused.

7. At the trial, the prosecution examined as many as 13 witnesses, of
whom, Bhajurama Devi (PW 2), Bindu Devi (PW 4), Lalmuni Devi (PW 6) and
Lachhi Devi (PW 7) were the eye witnesses. Sumitra Devi (PW 1) was examined C
to prove that decoits had forcibly taken away Mahendra Pandey and Taranath
Pandey from her house and soon thereafter she found that they were killed.
She disclosed the name of A-1, A-2 and Ram Dular Chamar who had whisked
away them. Dr. Jai Shanker Mishra (PW 9) was examined to prove the post
mortem examination reports and cause of death of six deceased persons.
D
8. The trial court after careful scrutiny of oral and documentary evidence
on record vide its judgment and order dated February 16, 1996 held the
appellants guilty of offences punishable under Sections 302, 302/149, 380 and
460 of the Indian Penal Code as also under Section 27 of the Arms Act. The
trial court, however, found that the prosecution had failed to establish beyond E
reasonable doubt any of the charges against Khobhru Chamar (A-3) and
Narad Chamar (A-4) and consequently they were acquitted. After hearing the
appellants and their counsel on the question of sentence, the trial court
awarded death sentence to both the appellants and made a Reference to the
High Court under Section 366 of the Code of Criminal Procedure.
F
9. This Reference came to be numbered as Death Reference No. I of
199.6 which was heard along with Criminal Appeal Nos. 118 and 136 of 1996
filed by the State of Bihar and the appellants respectively. The High Court
on re-appraisal of the entire evidence on record by its judgment and order
dated September 26, 1997 accepted the Reference and confirmed the death G
sentence awarded to both the appellants and dismissed the criminal appeals
filed by the appellants and the State of Bihar. It is against thisjudgment and
order of conviction and sentence passed by the High Court, appellants have
filed these appeals challenging the legality and correctness thereof.

10. Mr. R.K. Jain, Learned Senior Advocate appearing in support of H
124 SUPREME COURT REPORTS [1998) 2 S.C.R.

A these appeals urged that there was total non compliance of Section 235(2) of
the Cr.P.C. The trial court did not hear the appellants on the question of
{_
sentence inasmuch as they were not told that they had a right to lead
evidence on the question of sentence. It was the duty of the court to appraise
the appellants in that behalf and having not done so, a serious prejudice has
B been caused to the appellants and, therefore, the sentence awarded to them
is unsustainable.

11. Admittedly, at the trial, the appellants were represented by an
Advocate of their choice. The trial court pronounced the judgment of
conviction on 16th February, 1996 in the open court and then adjourned the
C matter to 23rd February, 1996 for hearing learned Counsel for the parties and
the appellants on the question of sentence. Relevant portion of the judgment
reads thus:-"

"Since both the accused have faced the trial from behind bar, hence
both are remanded to judicial custody to be produced on 23rd February,
D 1996 when the case will be put up for hearing on the point of sentence."

Accordingly, the appellants were produced in the court on the said
adjourned date. The trial court heard the learned Counsel for the parties and
thereafter pronounced the order of sentence. From the above facts, it is thus
E clear that the appellants were given sufficient opportunity of being heard on
the question of sentence. No grievance whatsoever in this behalf was made
either before the trial court or before the High Court. The arguments as
regards non compliance of Section 235(2) Cr. P.C. was first time sought to be
raised before us. Learned counsel for the appellants in support of his contention
drew otir attention to the judgment of this Court in Santa Singh v. State of
F Punjab, [1976] 4 SCC.190, While dealing with the true scope of Section 235
(2) Cr. P.C., this Court observed:-

"This provision is clear and explicit and does not admit of any doubt.
It requires that in every trial before a court of sessions, there must
first be a decision as to the guilt of the accused. The court must, in
G the first instance, deliver a judgment convicting or acquitting the
accused. If the accused is acquitted, no further question arises. But
if he is convicted, then the court has to "hear the accused on the
question of sentence and then pass sentence on him according to
law". When a judgment is rendered convicting the accused, he is, at
H that stage, to be given an opportunity to be heard in regard to the
SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J.l 125
sentence and it is only after hearing him that the court can proceed A
to pass the sentence."

The court emphasised that Section 235(2) Cr.P.C. is mandatory and it
must be complied with in true spirit. Non compliance thereof would not be
a mere irregularity which could be cured under Section 465 Cr. P.C. It was a B
case where the accused was charged for double murder and was represented
by a lawyer throughout the trial. On the day judgment was pronounced, the
accused was not so represented. The Sessions Judge pronounced the judgment
convicting him under Section 302 !PC and sentenced him to death without
giving any opportunity to him to be heard on the question of sentence. It is
on these facts, the court found that non compliance of Section 235(2) Cr.P.C. C
would make the death sentence unsustainable. The same view has been
reiterated by this Court in Allauddin Mian and others Sharif Mian and
another v. State of Bihar, [1989] 3 SCC.

5. It is true that in paragraph 10, this Court observed:-
D
"Since the provision is intended to give the accused an opportunity
to place before the court all the relevant material having a bearing on
the question of sentence there can be no doubt that the provision is
salutary and must be strictly followed. It is clearly mandatory and
should not be treated as a mere formality."
E
What had happened in this case was that the trial court recorded the
finding of guilt on March 31, 1987 and on the very same day,. they were asked
if they had anything to say on the question of sentence and immediately
thereafter the order of death sentence was pronounced. It appears that
grievance as regards non compliance of Section 235(2) Cr.P.C. was made in F
.,/ the courts below and it is in these circumstances, the court held that the
accused were not given sufficient opportunity to be heard on the question
of sentence and, therefore, there was non compliance of Section 235(2) Cr.P.C.
The facts of the case before us are entirely different and in fact after
pronouncing.the judgment of conviction on February 16, 1996, both the
appellants were remanded to judicial custody till 23rd February, 1996 and were G
given full opportunity of being heard on the question of sentence. The
Advocate for the appellants was also heard fully on the question of sentence.
It is in these circumstances, we find that the ratio of the above referred two
decisions of this Court will have no application. The argument relating to
prejudice thus would not survive. H
126 SUPREME COURT REPORTS. (1998] 2 S.C.R.

A 12. Learned Counsel for the appellants then urged that the procedure
followed in recording the statements of the appellants. under Section. 313
Cr.P.C. was totally irregular inasmuch as the material evidence and the
circumstances which were relied upon by the prosecution were not put to
them and resultantly they were denied an opportunity to explain the same. It .
B was, therefore, contended that non compliance of Section 313 Cr. P.C. has
vitiated the trial and the appellants could not be convicted for any offence.,
...
·13, The statement of Shobhit Chamar (A-2) recorded under Section 313 ...
Cr.P.C of which a free translation in English was furnished by his Advocate
reads thus:-
c Q: Have you heard the evidence of witness. It is the allegation of
witnesses that on the night of 112 January, 1989 Shiv Prakash
Pandey, Shobhit Chamar, Khobhare Chamar, Ram Pratap Chamar
and Narad. Chamar and other associates armed with rifle and gun
looted ornaments, clothes, cash from the house of the Informant
D Lalmuni Devi, situated in village Tirozpur, P.S. Durgawati, Distt.
Rohtas, at present in district Bhabhua. Have you got to say
anything?

A: No Sir.

E Q: It is also alleged by the witnesses that at that time, place and
date accused Ram Dular, Shobhit and Shiv Prakash killed
Jagarnath Pandey, Ram Iqbal Pandey, Mahendra Pandey, Taranath
Pandey, besides two children, namely, Anil Pandey and Sunil
Pandey who were sons of Haridwar Pandey (all of them) by
firing shots. Have you got anything to say?
F
A: No Sir.

Q: It is also alleged by the witnesses that at the time of occurrence,
electric bulb was illuminating in the court yard of the house of
informant, in the light of which (they) recognised you all. Have
G you got anything to say?

A: No Sir.

Q: Do you want to say something in your defence?

H A: On the day of occurrence, I was in the village (Illegible). Because
SHOBHIT CHAMAR v. ST ATE OF BIHAR [S.P. KURDUKAR, J.] 127
Haridwar Pandey had killed three persons like Ram_ Kewal etc.. A
Due to fear of this, I had left the village.

The statement of Shiv Prakash Pandey (A-1) is almost similar
except the "last question to which he had given answer "No Sir".

B
14. Relying upon the above statements of the appellants, it was
contended by Mr. R.K. Jain, Learned Senior Advocate that the court had
"
~ failed to formulate the question properly inasmuch as the material circumstances
appearing in the evidence of the prosecution were not put to the appellants.
Mr. Jain drew our attention to the decision of this Court in Tara Singh v. The
State, [1951] SCR 729 and in particular the observations at page 733. It was c
a case where statement of the accused was recorded under Section 342
Cr.P.C., 1898. The questions put to the accused were reproduced in the
judgment which according to this Court were not sufficient compliance of
Section 342 Cr.P.C. It is interesting to note that the Sessions Court repeated
the same questions and answers put to the accused at the committal stage D
by the Magistrate. It was, therefore, a case where the Sessions Court did not
~
..... record the statements of the accused under Section 342 of the Cr. P.C. after
recording the evidence of the prosecution at trial and, therefore, in these
circumstances, the court held that there was breach of provisioRs of Section
342 Cr:P.C. and consequently the conviction and sentence inflicted upon the
accused was set aside and the case was sent back to the trial court for de E
nova trial. In the case before us, the prosecution case mainly rested upon the
ocular evidence of eye witnesses. On conclusion of the prosecution evidence,
the trial court did put the necessary questions relating to the evidence of eye
witnesses to both the appellants and thereafter recorded the answers given
by them. It is, therefore, clear that the decision rendered by this Court in Tara F
Singh v. The State (supra) is clearly distinguishable.

15. In Rama·Shankar Singh and others v. State of West Bengal. AIR
(1962) SC 1239, a similar question arose for consideration before this Court
under the old Code,. 1898 and this court observed as uncier:-
G
"The examination by the Sessions Judge of the appellants was
"' perfunctory, but as observed in Ajmer Singh's case, [1953] SCR 418,
AIR (1953) SC 76 every error or omission in complying with S. 342
does not vitiate the trial. "Errors of this type fall within the category
of curable irregularities and the question whether the trial has been H
128 SUPREME COURT REPORTS [1998] 2 S.C.R.

A vitiated depends in each case upon the degree of error and upon
whether prejudice has been or is likely to have been caused to the
accused."

The Court then observed:-

B "Failure to comply with the provisions of the S.342 is an irregularity;
and unless injustice is shown to have resulted therefrom a mere
irregularity is by itself not sufficient to justify an order of retrial. The
appellate court must always consider whether by reason of failure to
comply with a procedural provisions, which does not affect the
c jurisdiction of the court, the accused have been materially prejudiced."

16. In State of Maharashtra v. Sukhdev Singh and another, [1992] 3
SCC 700, this Court had an occasion to consider a similar question. It was
a case which mainly depended upon the identification of the accused, various
other circumstances forming a chain of circumstantial evidence and the
D confessional statement. It is in this context, this Court ruled that the court was
,_
duty bound to solicit accused's explanation in respect of every incriminating ....
material used by the prosecution against him irrespective of how weak or
scanty the prosecution evidence was in this respect. This appeal was filed
by the State of Maharashtra challenging the order ·of acquittal passed by the
E trial court against some of the accused and on examining the records, the
Court found that there was non compliance of Section 313 Cr.P.C. and, therefore,
. the order of acquittal did not call for any interference.

17. In Bhalinder Singh @ Raju v. State of Punjab, [1994] I SCC 726,
this Court held that the circumstances not put to the accused while recording
F
his statement under Section 313 Cr.P.C., cannot be used against him. This was
a case where prosecution solely relied upon the circumstantial evidence. This
Court, therefore, came to the conclusion that the circumstances which were
not put to the accused cannot be used by the prosecution for holding him
guilty in a case of circumstantial evidence. This decision again does not help
G the appellants on the peculiar facts of this case.

k.
18. Mr. B.B.Singh, learned counsel for the respondent drew our attention
to the judgment of this Court in Suresh Chandra Bahri v .. State of Bihar,
[1995] Suppl. 1 SCC 80 and other connected appeals. This Court while dealing
H with the scope of Section 313 Cr.P.C. held as under:-
'I;(:..

SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J.) 129
"The provisions in Section 313, therefore, make it obligatory on the A
court to question the ace.used on the evidence and circumstance
appearing against him so as to apprise him the exact case which he
is required to meet. But it would not be enough for the accused to
show that he has not been questioned or examined on a particular
circumstance but he must also show that such non-examination has B
actually and materially prejudiced him and has resulted in failure of
justice. In other words in the event of any inadvertent omission on
the part of the court to question the accused on any incriminating
circumstance appearing against him the same cannot ipso facto vitiate
the trial unless it is shown that some prejudice was caused to him."

In the final analysis, the Court observed:
c
"In the facts and circumstances discussed above it cannot be said
that any prejudice was caused to the appellant. The contention of the
learned counsel for the appellants in tpis behalf therefore has no
merit." D
19. In Bijjoy Chand Potra v. The State, [1952] SCR 202, a similar
question arose before this Court as regards the scope of Section 342 of Code
of Criminal Procedure, 1898. In this reported decision, only three questions
were put to the accused on the conclusion of the prosecution evidence,
namely, (1) what his defence was as to the evidence adduced against him, (2) E
whether he had inflicted injuries on Kumad Patra and (3) whether he would
adduce any evidence, While considering the challenge to the conviction on
behalf of the accused on the ground that relevant prosecution evidence and
other materials relied upon by the prosecution were not put to him under
Section 342 Cr.P.C. 1898 the Court observed:-"
F
To s~stain such an argument as his been put forward, it is not sufficient
for the accused merely to show that he has not been fully examined as
required by Section 342 of the Criminal Procedure Code, but he must also
show that such examination has materially prejudiced him."

20. We have perused all these reported decisions relied upon by the G
Learned Advocates for the parties and we see no hesitation in concluding
that the challenge to the conviction based on non compliance of Section 313
Cr.P.C. first time in this appeal cannot be entertained unless the appellants
demonstrate that the prejudice has been caused to them. In the present case
as indicated earlier, the prosecution strongly relied upon the ocular evidence H
130 SUPREME COURT REPORTS (1998) 2 S.C.R.

A of the eye witnesses and relevant questions with reference to this evidence
were put to the appellants. If the evidence of these witnesses is found
acceptable, the conviction can be sustained unless it is shown by the <-
appellants that a prejudice has been caused to them. No such prejudice was
demonstrated before us and, therefore, we are unable to accept the contention
·s raised on behalf of the appellants.

2 J. Advertising to the merits of the case, at the outset, it needs to be
stated that there was no challenge to the fact that six persons were done to
death during the incident in question. The medical evidence in the form of
post mo.rtem examination reports which was duly proved by the medical expert
C Dr. Jai Shanker Misra (PW 9) unmistakably indicated that deceased persons
had sustained several gun shot injuries which caused their instantaneous
deaths. The courts below in our opinion have rightly held that six persons
died homicidal deaths during the incident in question. We accordantly uphold
the finding recorded by the courts below in this behalf.

D 22. In order to prove the complicity of the appellants, the prosecution
principally relied upon the evidence of four eye witnesses, namely, Bhajurama
Devi (PW 2), Bindu Devi (PW 4), Lalmuni Devi (PW 6) and Lachhi Devi (PW
7). All these witnesses were staying in the house of Jagarnath Pandey and
they had witnessed the entire incident in question. Lalmuni Devi (PW 6)
E lodged the First Information Report on 2nd January. 1989 at about 6.30 a.m.
naming the appellants and Ram Dular Chamar in addition to some unidentified
dacoits. All these eye witnesses identified the appellants. According to them,
the source of light was two electric bulbs which were on/burning in the court
yard. All these eye witnesses are illiterate ladies who have lost their male
family members. Lalmuni Devi (PW 6) in her evidence has given the
F photographic details as to how the incident took place. She stated that the
appellants along with other unidentified dacoits entered into the courtyard
and gunned down six persons two on each occasion. They died on the spot
due to fire arm injuries. She further stated that she identified three assailants
of whom two are appellants in the light of electric bulbs which were on/
G burning in the caurtyard. The First Information Report lodged by her fully
corroborates her evidence:
k.
23. Bhajurama Devi (PW 2) who is the mother of deceased Ram Iqbal
Pandey, has stated that when she was sleeping in her room, during the night,
her son Ram Iqbal Pandey (deceased) kriocked the door and asked her to
H open it as he was feeling thirsty. When she opened the door. 20 to 25 dacoits
SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J.] 131
entered into the house along with her son Ram Iqbal Pandey and Jagarnath A
Pandey (both since deceased) with their hands tied from behind. Shobhit
Chamar (A-2) and his associates inquired about Haridwar Pandey and the gun
and on her reply in the negative, they started looting the valuables and
assaulted Bindu Devi (PW 4). Suddenly, A-2 pumped out bullets from his gun
killing Ram Iqbal Pandey and Jagamath Pandey on the spot. Both the appellants B
then went out of the house and came back along with Taranath Pandey and
Mahendra Pandey who were made to stand in the courtyard and thereafter
shots were fired killing both of them on the spot. The female members in the
house were terribly scarred and they were praying not to ki.ll any of the family
members. Anil Pandey aged about 10 years and Sunil Pandey aged about 8
years both sons ofLalmuni Devi (PW 6) were snatched from her. Some of the C
miscreants then told their associates not to kill the children whereupon A-1
asked his associates not to leave the chi!,dren because when they would grow,
they will take the revenge. In the meantime, the children who had gone to the
mother were dragged back by the appellants and thereafter Shobhit Chamar
(A-2) fired at them as a result thereof, both the children fell down and died. D
The appellants and their associates then assaulted some of the inmates who
had sustained the injuries. All the six dead bodies were found lying in the
court yard. This witness was searchingly cross-examined on behalf of the
appellants but no material could be brought on record to disbelieve her
evidence. The evidence of this witness is absolutely free from any infirmity
and thus clearly establishes that the appellants and other associates entered E
into the house during the dead hours of !st and 2nd January, 1989, they were ·
armed with fire arms having a common object to eliminate male members of
the family of Haridwar and in pursuance thereof they killed six persons. The
evidence of Bin du Devi (PW 4) and Lachhi Devi (PW 7) is almost similar and
in their evidence they asserted that they identified the appellants in the light F
that was burning on in the courtyard. Their evidence in all material particulars
support the evidence of'Bhajurama Devi (PW 2) and Lalmuni Devi (PW 6).

24. The courts below have very carefully gone through the evidence of
these four eye witnesses. We have also undertaken the same exercise and in
our opinion the courts below have committed no error whatsoever in coming G
to the conclusion that during the night in question, the appellants along with
other dacoits entered into the house of Haridwar Pandey with deadly weapons
and formed an unlawful assembly sharing a common object to eliminate male
members of family of Haridwar. In prosecution of this common object, the
appellants killed six persons two in each lot by using the fire arms. The trial H
132 SUPREME COURT REPORTS [1998] 2 S.C.R.

A court for want of proper identification gave benefit of doubt to Khoohru
Chamar (A-3) and Narad Chamar (A-4) and acquitted them of all the charges.
As far as Ram Dular is concerned, it was stated that he was killed in police
encounter during the pendency of trial and hence trial abated against him.
Other miscreants who entered into the house during the said night could not
B be identified and as a result thereof, they could not be arraigned as accused.

25. The above findings recorded by the trial court and confirmed by the
High Court do not <uffer from any infirmity. On our careful consideration of
evidence on record, we share and confirm the same view. The fact that both
the appellants along with other dacoits came armed with deadly weapons
C during the dead hours would unmistakably show that they had come to the
house of Haridwar Pandey with th~ common object in the first instance to
finish Haridwar Pandey as he was suspected to be the killer of brother and
nephew of Shobhit Chamar (A-2). Finding that Haridwar was not available in
the house, the appellants and other members of the unlawful assembly
D committed the dacoity of the valuable property and thereafter Shobhit Chamar
(A-2) shot down the six male persons of the family of Haridwar Pandey
including two innocent children aged about l 0 and 8 years.

26.At this juncture, it would be very necessary to refer to the evidence
of Bhajuran.a Devi (PW 2) who during her cross-examinations on behalf of
E A-1 admitted that she did not see any fire arm in the hands of A-1. The
evidence of these four eye witnesses is consistent to prove that A-1 shared
the same common object with A-2 and other dacoits who had entered into the
house of Haridwar Pandey and were insisting that whereabouts of Haridwar
Pandey be disclosed to them and his gun be handed over. A-1 also actively
F participated in getting Jagarnath Pandey and Ram Iqbal Pandey with their
hands tied from behind into the courtyard and thereafter A-2 pupped out
bullets from his rifle. This evidence has got bearing when we consider the
sentence to be awarded to A-1. The eye witnesses then stated that the
appellants left the courtyard and within a short time came back along with
Taranath Pandey and Mahendra Pandey and forced them to stand in the
G courtyard and thereafter A-2 fired at them and gunned down in the presence
of the family members. Anil Pandey and Sunil Pandey who were sitting in the
Dumuha here brought dragging by A-2. Having regard to the ages of the
children, some of the dacoits asked A-2 to set them free and were accordingly
freed. In the meantime, A- I asked the miscreants not to spare the children
H because when they grow, they would take the revenge. A-2 and his associate
SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J.) 133
!
then brought the children forcibly from the lap of their mother Lalmuni Devi A
(PW 6) and thereafter A-2 and his associate gunned down them. A-2 then
claimed that they had finished all the male members of Haridwar Pandey and
now his heart is cooled down. They thereafter left the place of occurrence
rejoicing the victory and giving slogans of success in the name of God .
•
27. Mr. R.K.Jain, learned Senior Advocate appearing for the appellants, B
however, urged that the prosecution has failed to establish any common
object/intention on the pat of the appellants to commit the crime in question.
He further urged that if they had a common object/intention to take the
revenge, they would not have spared the ladies. This submission does not
impress us in view of the ocular evidence of the four eye witnesses. C
28. It was then contended for the appellants that the evidence of four
eye witnesses who are close relatives of the deceased persons be not accepted
as. sufficient in the absence of corroboration from independent evidence.· He
further urged that the relations between A-2 and Haridwar had become strained
and inimical because A-2 strongly believed that Haridwar Pandey was D
responsible for the murder of his brother and nephew. It is because of this
enmity, the eye witnesses falsely implicated the appellants at the behest of
Haridwar Pandey. This submission again is devoid of any merit. The courts
below have very carefully scrutinized the evidence of four eye witnesses and
found it trustworthy. We are in agreement with the appreciation of evidence E
done by the courts below and therefore, we uphold the finding as regards the
complicity of both the appellants in the present crime.

29. Coming to the question of sentence, the trial court as well as the
High court awarded death sentence to both the appellants having regard to
their complicity, the common object shared by them, the degree of brutality F
and revengeful conduct exhibited by them. The trial court as well as the High
Court had also referred to the law settled by this Court on the question of
death sentence. The High Court while confirming the death sentence of both
the appellants had referred to the decision of this Court in (I) Bachan Singh
v. State of Punjab, [1980] 2 SCC 684. (2) Machhi Singh v. State of Punjab.
(1983] 3 SCC 470 and (3) Dhananjoy Chatterjee@ Dhana v. State of West G
Bengal, [ 1994] 2 SCC 220. After considering the law laid down by this Court
in all these three reported decisions, the High Court held that the present case
is one of the rarest of rare cases where death sentence to both the appellants
must be held to be the appropriate sentence. The High Court also considered
the mitigating circumstances urged on behalf of the appellants against awarding H
134 SUPREME COURT REPORTS (1998] 2 S.C.R.

A the death sentence. In paragraphs 34. 35 and 36, the High Court has summarised
the conte_ntions raised on behalf of the Learned Counsel. for the parties and
concluded that the trial court had committed no mistake in awarding the death <..
sentence to both the appellants and accordingly accepted the Reference and
dismissed the criminal appeals filed by the appellants.

B 30. Mr. R.K. Jain, learned Senior Advocate appearing for the appellants
·heavily relied upon the minority decision rendered by Bhagwati, J. in the case
of Bachan Singh (supra). Advocating the view expressed by Bhagwati, J., he
..
~
urged that the present trend in the world is against the death penalty. Moreover,
the present crime cannot be said to be the rearers of rare cases. He, therefore,
c urged that this is not a fit case where the appellants need to be awarded death
sentence. In the facts and circumstances of this case, sentence of life
imprisonment to both the appellants would meet the ends of justice. This
argument completely overlooks the majority judgment which has accepted the
constitutionality of the death sentence .in the raresi of rare cases.
D 31. Having regard to the evidence of the eye witnesses and the facts
proved in the present case, we may now deal with the question of sentence
in respect of both the appellants separately. We may first deal with the
question of sentence awarded to Shiv Prakash Pandey (A-1). It is no doubt
true that Shiv Prakash Pandey (A-1) has been awarded the death sentence
E with the aid of Section 149 IPC as also on the basis of a general statement
made by the four eye witnesses that the miscreants had gunned down the six
persons during the incident in question. The evidence on record discloses
that A-I, A-2 and other miscreants came together along with Jagarnath Pandey
and Ram Iqbal Pandey with their hands tied behind and forced Ram Iqbal
F Pandey to give a knock on the door under the pretext that he wanted to drink
water. When the door was opened by Bhajurama Devi (PW 2), A- I and his
associates entered into the house. A- I also exhorted that no male number of
Haridwar family should be kept alive. Being a member of an unlawful assembly
""
sharing a common object, he was rightly found guilty with the aid of Section
149 IPC for committing six murders. But, however, Bhajurama Devi (PW 2) in
.G her evidence has admitted that A- I was not having any fire arm in his hands
at the time of entire episode. Other three eye witnesses undoubtedly made )_I•
i
a general statement that A-2 and other miscreants fired at the six persons who
dii;:d on the spot. The evidence of all the four eye witnesses is consistent that
. " t_i.
,.
lie
Shdbhit Chamar (A-2) had fired from his fire arm on all the six persons who '
jlc
;ii::
H died instantaneously. In the face of this evidence, a distinction based on the 11

,l
SHOBHIT CHAMAR v. STATE OF BIHAR [S.P. KURDUKAR, J_J 135
degree of complicity and brutality will have to be drawn which has got a vital A
impact of awarding the sentence. It is wet! settled while awarding the sentence,
~ the court has to bear in mind the crime and the criminal. Shobhit Chamar (A-
2) had an axe to grind against Haridwar and his family members as he believed
that Haridwar was responsible for causing murders of his brother and nephew.
Shiv Prakash Pandey (A-1) as it appears from the record that he is not related
B
to Shobhit Chamar (A-2) and, therefore, he might not be having the same
degree of revenge and brutality as that of Shobhit Chamar (A-2) had, Keeping
..., Ihis distinction in mind, in our opinion, the case of Shiv Prakash Pandey (A-
1) will not fall in the category of rarest of rare cases. This distinction was over
looked by the courts below. We are, therefore, of the considered view that
the death sen1e11ce awarded to Shiv Prakash Pandey (A-1) was not justified c
having regard to the facts and circumstances of the case. His case would not
fall in the category of rarest of rare cases. We accordingly uphold the conviction
of Shiv Prakash Pandey (A-1) under Section 302/149 !PC but however the
death sentence awarded 10 him by the courts below is altered to one for life
, imprisonment. D
~ 32. Coming to the case ofShobhit C-hamar (A-2), the evidence on record
proves beyond every reasonable doubt that he was the principal offender/
miscreant who fired from his fire arm on alt the six persons including the two
innocent children. He had a deep routed revenge based upon suspicion about
the murders of his brother and nephew by Haridwar Pandey which prompted E
him to take avenge against the family members of Haridwar and had gone to
the extent of killing six persons belonging the family of Haridwar in a most
brutal, heinous and barbaric manner. Nothing was suggesied to the eye
witnesses on behalf of A-2 that any of these deceased persons had played
any role in committing the murders of his brother and nephew and at any rate
having regard to the ages of Anil Pandey and Sunil Pandey it could not be F
.f
even remotely suspected that they could be the a..~sailants. Shobhit Chamar
(A-2) wanted not only to teach a lesson to the family members of Haridwar
but also to create a terror in the minds of the family members of Haridwar to
satisfy his ego and muscle power. A-2 exhibited most inhuman conduct while
rejoicing his victory after commission of the crime. It is in this background, G
we are of the considered view that the trial court as well as the High Court
has committed no error in awarding death sentence to him.

33. Mr. B.B.Singh, Learned Counsel for the State of Bihar drew our
attention to the recent judgment of this Court in Shiv Ram and another v.
State of U.P., with connected appeals [1998] 1 SCC 149. This decision to a H
136 SUPREME COURT REPORTS [1998] 2 S.C.R.

A great extent is similar even on facts.

34. Mr. Jain was unable to point out any mitigating circumstance which "'-
could pursued us to alter the death sentence of A-2. In our considered view,
the courts below were right in awarding the death sentence to Shobhit
Chamar (A-2) as his case clearly falls within the ambit of rarest of rare cases.
B We accordingly confirm the death sentence of Shobhit Chamar (A-2).

35. The convictions of both the appellants on other counts i.e. under i.

Sections 380 and 460 of the Indian Penal Code are also confirmed. Conviction ..-
and sentence of Shiv Prakash Pandey (A-1) under Section 27 of the Arms Act
to stand set aside but, however, the conviction and sentence of Shobhit
C Chamar (A-2) under Section 27 of the Arms Act is confirmed.
36. In the result, conviction and death sentence of Shobhit Chamar (A-
2) passed by the trial court and on Reference confirmed by the High Court
is affirmed and his Criminal Appeal is dismissed. The judgment and order of
D conviction of Shiv Prakash Pandey (A- I) under Section 302/149 of the Indian
Penal Code passed by the trial court and an appeal confirmed by the High
Court is upheld but however the death sentence awarded to him by the trial
court and on Reference confirmed by the High Court is altered to life
imprisonment.

E R.K.S. Appeal dismissed.