HARI & ANR. versus THE STATE OF UTTAR PRADESH

[2021] 10 S.C.R. 1022

[2021] 10 S.C.R.

HARI & ANR.

THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 186 of 2018)

BNOVEMBER 26, 2021

[L. NAGESWARA RAO, SANJIV KHANNAAND B. R. GAVAI, JJ]

Penal Code, 1860:

ss. 147, 302/149, 323/149, 324/149 and 201/149 – ScheduledCCastes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989– s. 3(3)(10) – Matter pertaining to honour killing – Jat girl wantedto marry Jatav boy which infuriated the Jat community – Jat girland Jatav boy along with another Jatav boy who accompanied them,physically assaulted for 12 hours and killed by accused for violatingDcaste-ridden societal norms – 54 persons charged – Trial courtconvicted 35 persons for the commission of offences u/ss. 147, 302/149, 323/149, 324/149 and 201/149 and s. 3(3)(10) of the SC/STAct and imposed death sentence on eight of them – However, theHigh Court commuted the death sentence to life imprisonment – Onappeal, held: From the evidence of four eye-witnesses, the medicalEand scientific evidence, and documentary evidence it is proved thatthe youngsters were tortured, then killed by hanging and thereafter,their bodies were cremated – Testimonies of the four eye-witnessesare credible – Inconsistencies and contradictions in their evidenceare trivial – Eye-witnesses’ account stating about the involvementFof the accused and ascribed specific overt acts to some of them,believed by the courts below – As regards those, not assigned anyactive role or overt act, there is no doubt that they shared the commonobject to punish the victims and kill them – Their presence in thePanchayat continuously for nearly 12 hours without any protestlends support to the prosecution version – Relevant portion of theGtestimony of the hostile witness rightly relied upon by the High Court– Informant not able to mention all the names of those involved dueto the trauma of witnessing an egregious crime, is accepted –Recovery of clothes of deceased, recovery of half burnt body remainssupport the prosecution’s version about the burning of the bodiesHof the victim – Thus, the murder established beyond doubt – Courts

below committed no error in convicting the accused u/s. 302 withthe aid of s. 149 – Entire incident squarely falls under the head ofanti-social and abhorrent nature of the crime – Thus, order passedby the High Court is upheld, except for three who are acquitted inview of the ambiguity in their identity – Evidence – Witnesses.

s. 149 – Unlawful assembly – Vicarious liability u/s. 149 –Held: s. 149 is declaratory of the vicarious liability of the membersof an unlawful assembly for acts done in prosecution of the commonobject of that assembly or for such offences which the membersknew would be committed in prosecution of that object – Prosecutionneed not prove each of the members’ involvement especiallyregarding which or what act – While overt act and activeparticipation may indicate common intention of the personperpetrating the crime, the mere presence in the unlawful assemblymay fasten vicariously criminal liability u/s. 149.

s. 149 – Unlawful assembly – Common object of an assembly– Held: Common object is different from common intention as itdoes not require prior concert and common meeting of mindsbefore the attack – It is enough if each has the same object in viewand their number is five or more and that they act as an assembly toachieve that object – Common object of an assembly is to beascertained from the acts and language of the members composingit, from the surrounding circumstances and the course of conductadopted by the members.

Witnesses:

Hostile witness – Evidentiary value – Held: Part of theevidence of the hostile witness which is creditworthy, can be actedupon – Criminal trial.

Protection of – Implementation of Witness Protection Scheme– Need to formulate scheme/guidelines/programmes to safeguardrights of the witnesses.

Constitution of India:

Art. 136 – Interference by this Court in criminal appeal bya Special Leave – Governing principles – Stated.

Art. 19(1)(a) and Art. 21 – Right to life – Right to lifeguaranteed to the people also includes in its fold the right to live in

Aa society which is free from crime and fear, and the right of witnessesto testify in courts in free and fair manner without fear or pressure– If one is unable to testify in courts due to threats or other pressures,it is clear violation of Art. 19(1)(a) and Art. 21 – One of the mainreasons for witnesses to turn hostile is that they are not accordedappropriate protection by the State – State to ensure the safety ofBthe witnesses irrespective of case, creed, religion, such that theycould safely depose the truth in the court at least in sensitive casesinvolving those in power, political patronage.

Honour killings: Preventive steps, remedial and punitivemeasures to combat honour crimes – Suggestion of, in Shakti Vahini’sCcase – Stated.

Casteism: Commission of atrocities in the name of castes –Ghastly murders of three youngsters, by physically assaulting themfor nearly 12 hours for violating caste-ridden societal norms – Held:Episodes of honour killing demonstrate that the casteism has notDbeen annihilated even after 75 years of independence – Bigotryperpetuated by such caste-based practices impedes the objectiveof the Constitution of equality for all its citizens – High time for thecivil society to react and respond with strong disapproval about theghastly crimes committed in the name of caste.

Administration of justice: Administration of criminal justice– Racial and religiously motivated crimes, if to be treated asaggravating factors for enhanced punishment – Foreign laws-UnitedKingdom, Canada, United States vis-a-vis Indian laws – Discussed.

Disposing of the appeals, the CourtF

HELD: 1.1 Right to testify in courts in free and fair mannerwithout any pressure and threat whatsoever is under seriousattack today. If one is unable to testify in courts due to threats orother pressures, then it is clear violation of Art. 19 (1) (a) andArt. 21 of the Constitution. Right to life guaranteed to the peopleGof this country also includes in its fold the right to live in societywhich is free from crime and fear and the right of witnesses totestify in courts without fear or pressure. It needs to beemphasised that one of the main reasons for witnesses to turnhostile is that they are not accorded appropriate protection bythe State. It is harsh reality, particularly, in those cases whereH

the accused persons/criminals are tried for heinous offences, orwhere the accused persons are influential persons or in adominating position that they make attempts to terrorise orintimidate the witnesses because of which these witnesses eitheravoid coming to courts or refrain from deposing truthfully. Thisunfortunate situation prevails because of the reason that the Statehas not undertaken any protective measures to ensure the safetyof these witnesses, commonly known as “witness protection”.[Para 28][1046-B-E]1.2 The State has definite role to play in protecting thewitnesses, to start with, at least in sensitive cases involving thosein power, who have political patronage and could wield muscleand money power, to avert trial getting tainted and derailed andtruth becoming casualty. As protector of its citizens, it has toensure that during trial in the court the witness could safelydepose the truth without any fear of being haunted by those againstwhom the witness had deposed. Every State has constitutionalobligation and duty to protect the life and liberty of its citizens.That is the fundamental requirement for observance of the ruleof law. There cannot be any deviation from this requirementbecause of any extraneous factors like caste, creed, religion,political belief or ideology. [Para 29][1046-F-H]

1.3 The instant case squarely falls under the situationscontemplated by this Court while necessitating the formulationof scheme/guidelines/programmes for protection of witnesses.Implementation of the Witness Protection Scheme at the timewhen the witnesses were deposing in the present case, wouldhave prevented the prosecution witnesses from turning hostile.If the material witnesses were relocated from the village andescorted to the courtroom, they would have deposed freely incourt. [Para 31][1047-C]

Mahender Chawla & Ors. v. Union of India & Ors.(2019) 14 SCC 615 : [2018] 14 SCR 627; ZahiraHabibullah Sheikh and Anr. v. State of Gujarat & Ors.(2006) 3 SCC 374 : [2006] 2 SCR 1081; Ashwin KumarUpadhyay v. Union of India and Anr. (2020) SCCOnLine SC 1228 – referred to.

[2021] 10 S.C.R.

A2.1 Section 149 IPC is declaratory of the vicarious liabilityof the members of an unlawful assembly for acts done inprosecution of the common object of that assembly or for suchoffences as the members of the unlawful assembly knew wouldbe committed in prosecution of that object. If an unlawful assemblyis formed with the common object of committing an offence, andBif that offence is committed in prosecution of the object by anymember of the unlawful assembly, all the members of the assemblywill be vicariously liable for that offence even if one or more, butnot all committed the offence. Again, if an offence is committedby member of an unlawful assembly and that offence is one whichCthe members of the unlawful assembly knew to be likely to becommitted in prosecution of the common object, every memberwho had that knowledge will be guilty of the offence so committed.It is not necessary for the prosecution to prove each of themembers’ involvement especially regarding which or what act.While overt act and active participation may indicate commonDintention of the person perpetrating the crime, the mere presencein the unlawful assembly may fasten vicariously criminal liabilityunder Section 149. [Para 35][1048-C-F]

Masalti v. State of UP [1964] 8 SCR 133; ShambhuNath Singh v. State of Bihar AIR 1960 SC 725; Lalji v.EState of U.P. (1989) 1 SCC 437 : [1989] 1 SCR 130 –referred to.

2.2 Common object is different from common intention asit does not require prior concert and common meeting ofminds before the attack. It is enough if each has the same objectFin view and their number is five or more and that they act as anassembly to achieve that object. The common object of anassembly is to be ascertained from the acts and language of themembers composing it, and from consideration of all thesurrounding circumstances. It may be gathered from the courseGof conduct adopted by the members of the assembly.[Para 36][1048-G; 1049-A]

Charan Singh v. State of U.P. (2004) 4 SCC 205 : [2004]2 SCR 925; Kattukulangara Madhavan (dead) throughLRs. v. Majeed and Ors. (2017) 5 SCC 568 : [2017] 4SCR 658 – referred to.H

3.1 The High Court found that the contradictions andinconsistencies indicated in the statements of the four eye-witnesses were trivial in nature. The High Court ignored thecontradictions and inconsistencies which did not affect thesubstratum of the prosecution’s case. The High Courtdisapproved the approach of the Trial Court in discarding theformula of at least two witnesses deposing the presence/overtact of the accused in case where large numbers of accused areinvolved. The High Court gave benefit of doubt to two personswhose presence/involvement was spoken by only one witness.Concurrent findings of fact pertaining to the commission of thecrime and involvement of the appellant cannot be subjected tofurther scrutiny by this Court, according to the well-establishedlaw laid down by this Court. It is not necessary to undertakefresh appraisal of the evidence as there is no inclination totake view different from the concurrent findings since theappreciation of evidence by the Courts below is not erroneous.[Para 20][1041-G-H; 1042-A-D]

State of MP v. Ramesh (2011) 4 SCC 786 : [2011] 5SCR 1; Masalti v. State of UP [1964] 8 SCR 133; KaurSain v. State of Punjab (1974) 3 SCC 649 : [1974] 2SCR 393 – referred to.

3.2 From the evidence of PW-1, PW-13, PW-14 and PW-15who are eye-witnesses, the medical and scientific evidence, anddocumentary evidence it is proved that RK, V and R were torturedand then were killed by hanging. Thereafter, their bodies werecremated. The testimonies of the eye-witnesses are credible andhave been rightly accepted by the courts below. The recovery ofclothes of deceased RK, recovery of clothes of V, recovery ofhalf burnt pieces of bones, ribs, spinal cord, parts of intestineand burnt pieces of flesh support the prosecution’s version aboutthe burning of the bodies of the deceased. The murder of R, Vand RK is established beyond doubt. The eye-witnesses’ accountof PW-1, PW-13, PW-14 and PW-15 was believed by the courtsbelow. They have stated about the involvement of the appellantsand ascribed specific overt acts to some of them. The roleassigned to each of the appellants by the witnesses is stated inthe chart. [Para 22][1044-E-G]

A3.3 The High Court was of the opinion that the evidence ofPW1 cannot be eschewed from consideration only on the groundthat they turned hostile. The relevant portion of their testimonywas rightly relied upon by the High Court after recording thecompelling reasons prompting the 12 prosecution witnesses,including PW1, to turn hostile. [Para 23][1045-A-B]B

3.4 The evidence of prosecution witnesses cannot berejected in toto merely because the prosecution chose to treatthem as hostile and cross- examined them. The evidence of suchwitnesses cannot be treated as effaced or washed off the recordaltogether but the same can be accepted to the extent that theirCversion is found to be dependable on careful scrutiny thereof.It is for the judge of fact to consider in each case whether as aresult of such cross-examination and contradiction, the witnessstands thoroughly discredited or can still be believed in regardto part of his testimony. If the judge finds that in the process,Dthe credit of the witness has not been completely shaken, hemay, after reading and considering the evidence of the witness,as whole, with due caution and care, accept, in the light of theother evidence on the record, that part of testimony which hefinds to be creditworthy and act upon it. Even if the witnesseshave turned hostile, their evidence can be accepted, if they areEnatural and independent witnesses and have no reason to falselyimplicate the accused. [Paras 25, 26][1045-D-G]

Radha Mohan Singh v. State of UP (2006) 2 SCC 450 :[2006] 1 SCR 519; Syad Akbar v. State of KarnatakaAIR 1979 SC 1848 : [1980] 1 SCR 95; Mrinal DasFand Others v. State of Tripura (2011) 9 SCC 479 : [2011]14 SCR 411 – referred to.

3.5 In the instant case, the evidence of PW1 finds completecorroboration from the evidence of PW13, PW14, and PW15 whoare also the reliable eye-witnesses of the incident. The testimonyGof PW1 is unshaken and it was only after long period of stay oftrail for 6 years, that she turned hostile. The courts below wereright in placing reliance on the testimony of PW 1, who is also areliable witness, for the conviction of the accused persons evenafter she was declared hostile. [Para 27][1046-A-B]H

4.1 The explanation given by the informant that he was notin proper frame of mind when he gave the complaint and that hewas in the hospital for the next ten days, attending to his familymembers who were physically assaulted and only after that hecould give the names of the rest of the accused, was rightlyaccepted by the courts below. PW-15-informant managed to escapethe well-guarded boundaries of the village after witnessing aprolonged torture of the deceased persons for nearly 12 hoursthroughout the night and reached the police station to lodge thecomplaint. He would not have been able to mention all the namesof those involved due to the trauma of witnessing an egregiouscrime which resulted in the murder of his nephew and two otherpersons. [Para 32][1047-E-G]

4.2 On examination of the evidence of PW-1, PW-13, PW-14 and PW-15 the holding by the Courts below that the all fourwitnesses are reliable and the inconsistencies and contradictionsin their evidence are trivial is accepted. The ghastly crime wascommitted at four different places for prolonged period of morethan 12 hours. Inconsistencies in the version of the witnessesare natural, especially when large number of persons areinvolved. [Para 33][1047-G-H; 1048-A-B]

4.3 The harrowing torture of the three deceased whichcommenced at 9 pm at night and continued till 9 am on the nextday with the participation of the appellant in the Panchayat, wasproved by the testimony of the eye-witnesses. Specific overt actshave been ascribed to some of the appellants - B, G, CS, P, M, J,BC, K, RS, R for dragging the deceased from their houses to thepanchayat of M; appellants KS, RS for physically assaulting thedeceased and their family members; appellants BC, K, R, M forforcing the parents of the deceased to hang them; appellants N,G, P, M, N, BT, J, BC, K, RS, SC for being involved in the hangingof the deceased; appellants BT, J, for dragging the bodies of thedeceased to the cremation ground and appellants BT, J, BC, KS,S for lighting the fire to the bodies of the deceased at the cremationground. The courts below committed no error in convicting theappellants under Section 302 with the aid of Section 149 IPC.Even in respect of those who are not assigned any active role orovert act, there is no doubt that they shared the common object

Ato punish the deceased and kill them. Their presence in thePanchayat continuously for nearly 12 hours without any protestor any attempt made by them to stop the violence would lendsupport to the prosecution version that all the appellants sharedthe common object of murdering the deceased. [Para 38][1050-A-E]B

5.1 Two young men and woman were physically assaultedfor nearly 12 hours and killed by the accused for violating caste-ridden societal norms. These episodes of caste-motivatedviolence in the country demonstrate the fact that casteism hasnot been annihilated even after 75 years of independence.CAccording to Dr. B. R. Ambedkar, inter-caste marriage is oneremedy to get rid of casteism in order to achieve equality. Hisvision for ensuring justice and equality to all sections of thesociety, especially to the repressed segments, is well enshrinedin the preamble of the Constitution. The bigotry perpetuated byDsuch caste-based practices which are prevalent even today,impedes this objective of the Constitution of equality for all itscitizens. Proposal of marriage by R who belongs to Jat community,with V who is Jatav, has resulted in their deaths. Though thenumber is tad less, honour killings have not stopped in thiscountry and it is high time that the civil society reacts andEresponds with strong disapproval about the ghastly crimescommitted in the name of caste. This Court issued severaldirections to the administrative authorities and police officials totake strong measures to prevent honour killings. Honour killingspursuant to the decree of Khap Panchayats have been stronglyFcriticized by this Court. Harsh punishment was recommended tothose brutal and feudal minded persons who commit atrocities inthe name of castes. The Law Commission of India in its 242[nd]Report suggested the legal framework on Prevention ofInterference with the Freedom of Matrimonial Alliances in the

name of Honour and Tradition. The Law Commission was of theGopinion that there must be threshold bar against congregationor assembly for the purpose of objecting to and condemning theconduct of young persons of marriageable age marrying accordingto their choice, the ground of objection being that they belong tothe same gotra or to different castes or communities. TheHPanchayatdars or caste elders have no right to interfere with the

life and liberty of such young couples whose marriages arepermitted by law and they cannot create situation whereby suchcouples are placed in hostile environment in the village/localityconcerned and exposed to the risk of safety. The Law Commissionfurther recommended that the very assembly for an unlawfulpurpose viz. disapproving the marriage which is otherwise withinthe bounds of law and taking consequential action should betreated as an offence as it has the potential to endanger thelives and liberties of individuals concerned. [Para 39][1050-F-H;1051-A-E]

Shakti Vahini v. Union of India and Ors. (2018) 7 SCC192 : [2018] 3 SCR 770 - relied on.

Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC405 : [2011] 5 SCR 488; – referred to.

5.2 The ghastly murders of three youngsters which arehonour killings squarely falls under the head of anti-social andabhorrent nature of the crime. [Para 46][1059-B]

Machhi Singh v. State of Punjab (1983) 3 SCC 470 :[1983] 3 SCR 413 – referred to.

6.1 Appellants TS, K, S, BC, RS, R and K were sentencedto death by the trial court for committing the gruesome murdersof three youngsters in barbaric manner. However, the HighCourt converted the death sentence of the appellants to that oflife imprisonment till their last breath. The reasons given by theHigh Court for converting the death sentence of the appellantsto life imprisonment are the advance age of some of the appellants,the passage of long time after the commission of crime and mentalsufferings that they have undergone. Keeping in view the factsand circumstances of this case, the judgment of the High Courtinsofar as the conversion of death sentence to life imprisonmentin respect of accused is upheld. [Para 47][1059-C-E]

6.2 The judgment of the High Court is upheld and affirmthe conviction and sentence imposed on the accused namely DH,NT, SR, TJ, BC, KM, RM, RN, SR, MH, CH, PT, BT, JV, KR,MN, GN, DH, BL, DR, MN, KS, DM. Accused namely H, LS andG are acquitted in view of the ambiguity in their identity.[Para 50][1060-D-F]

ADalbir Kaur v. State of Punjab (1976) 4 SCC 158:[1977]1 SCR 280; Ramaniklal Gokaldas v. State of Gujarat(1976) 1 SCC 6; Duli Chand v. Delhi Admn. (1975) 4SCC 649; Bachan Singh v. State of Punjab (1980) 2SCC 684; Masalti v. State of UP 1964 (8) SCR 133 –referred to.BWisconsin v. Mitchell [508 US 476 (1993)] – referredto.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.186 of 2018.

From the Judgment and Order dated 31.05.2016 of the High Courtof Judicature at Allahabad in Criminal Case No.7039 of 2011.

With

Criminal Appeal Nos.190-192, 188, 1553-1556, 189, 187 of 2018And Criminal Appeal Nos. 1503 and 420 of 2021.

Mrs. Amita Gupta, Sanjay Kumar Tyagi, P. V. Yogeswaran, AshishKumar Upadhyay, Vivek Tripathi, Y. Lokesh, Ms. V. Keerthana, PankajAgarwal, C. S. N. Mohan Rao, Advs. for the Appellants.

Ms. Garima Prashad, AAG, Vishnu Shankar Jain, Ms. MarbiangN. Khongwir, Parth Yadav, Advs. for the Respondent.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. Leave granted.

2. By judgment dated 14.11.2011, the Trial Court held thefollowing persons guilty of the offences under Sections 147, 302 readwith 149, 323 read with 149, 324 read with Section 149 and 201 readwith Section 149 of Indian Penal Code (“IPC”) and Section 3(3)(10) ofthe Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 (“SC/ST Act”): -

Dhanni son of Ratan Singh, Tej Singh son of Kerori, Dharamveerson of Kanhayalal, Shivcharan son of Maniram, Singh Ram son of ManiRam, Mahender son of Mangtu, Balli son of Kishanlal, Dharam son ofKallu, Nirto son of Bhavar Singh, Bacchu son of Nabli, Gopi son ofHariom, Tulsi Ram son of Bhanwar Singh, Kamal son of Kanhaya, RamSingh son of Dayaram, Jeevan son of Bhaggo, Girraj son of Kamar,Kashi son of Bhavar Singh, Chattar Singh son of Lal Singh, Karan sonof Dayaram, Naval Singh son of Narayan, Daya Ram son of Inder,Harchand son of Leela, Mangtu son of Sunder Lal, Dayaram son ofBhavar Singh, Dharam son of Harchandi, Sirro son of Manni, Baato sonof Bhaggo, Pritam son of Naval, Shrichand son of Deepchand, Deepialias Deepchand son of Nathi, Harchandi son of Maharaj Singh, Hariramson of Yadram, Gangaram son of Hiralal, Hari son of Govinda, andLalsingh son of Khushiram.

A3. Appellants-Accused namely Dhanni son of Ratan Singh,Dharamveer son of Kanhaya, Shivcharan son of Maniram, Singhramson of Maniram, Balli son of Kishanlal, Mahendra son of Mangtu, Dharamson of Kallu, Nirto son of Bhavarsingh, Gopi son of Hariom, Girraj sonof Govinda, Manni son of Natthi, Girraj son of Kamar, Kashi son ofBhavar Singh, Chattar Singh son of Leele, Harchand son of Leele,BDharam son of Harchandi, Pritam son of Naval, Gangaram son of Hiralal,Hari son of Govinda, Lalsinghson of Khushiram, Mangtu son of Sunderlal,Naval son of Narayan, Dayaram son of Bhavarsingh, Baato son ofBhaggo, Shrichand son of Deepchand, Deepi alias Deepchand son ofNathi, Jeevan son of Bhaggo were sentenced to life imprisonment underCSection 302/149 of IPC, rigorous imprisonment for one year under Section323/149 of IPC, 3 years under Section 324/149 of IPC, 7 years underSection 201/149 of IPC and 3 years under Section 3 (3) 10 of the SC/STAct.

4. Appellants-accused namely Tej Singh son of Kirori, BacchuDson of Nabali, Tulsi Ram son of Bhavar Singh, Kamal son of Kanhaya,Ram Singh son of Dayaram, Raman son of Roopi, Karan son of Dayaram,Sirro son of Bhajni were sentenced to death under Section 302/149 ofIPC.

5. Criminal appeals were filed by the above-named convictedEpersons in which the conviction was upheld by the High Court. However,the death sentence imposed on Tej Singh and 7 others was altered toimprisonment for life. Aggrieved by their conviction and sentence, theappellants have approached this Court by filing the above criminalappeals.F6. Criminal Appeal Nos. 1553-1556 of 2018 have been filed bythe State of Uttar Pradesh against the commutation of death sentenceof Tej Singh son of Kirori, Bacchu son of Nabali, Tulsi ram son of BhavarSingh, Kamal son of Kanhaya, Ram Singh son of Dayaram, Raman sonof Roopi, Karan son of Dayaram, Sirro son of Bhajni to life imprisonment.During the pendency of the appeals, Tulsi Ram son of Bhavar SinghGpassed away.

7. At 11.40 am on 27.03.1991, FIR was registered on the statementmade by Amichand (PW-15) at Police Station, Barsana. It was stated inthe complaint that Roshni daughter of Ganga Ram eloped with Vijendrason of Shyama Jatav on 21.03.1991 and they were accompanied byH

Ram Kishan son of Maharam. They returned back to the village on24.03.1991. At 9.00 pm on 26.03.1991, Mangtu S/o Sunder Lal, PritamS/o Nawal Singh, Chatar S/o Lal Singh, Girraj S/o Kanwar Singh Bageraforcibly took Ram Kishan and Vijendra along with their family membersto attend the Panchayat. Roshni was Jat and Vijendra and Ram Kishanwere Jatavs. Roshni stated that she wanted to marry Vijendra and livewith him, which infuriated persons belonging to the Jat community.

8. Nawal S/o Narain, Purna S/o Chandan Singh, Deep Chand S/o Sunder Lal, Dayaram S/o Sunderlal, Mangtu S/o Sunder Lal, RamanS/o Roopi, Kamal S/o Kanehiya, Amar Singh S/o Daya Ram, Ram SinghS/o Daya Ram, Dhanni S/o Rattan Singh, Hari S/o Yadu, Battari S/oNand Ram, Bal Kishan S/o Maan Singh, Deepi S/o Nathi, Bairam S/oDeep Chand, Bacchu S/o Nabali, Tej Singh S/o Karori, Ganga S/o HeeraLal, Papu S/o Ganga Ram, Baato S/o Bhaggo, Jeevan S/o Bhaggo, LalSingh S/o Yadram, Ram Singh S/o Handoo, Dharamveer S/o Kanahiya,Lala S/o Ramji Lal, Parmi S/o Ajinal, Daya Ram S/o Bhanwar Singh,Harchand S/o Lal Singh, Pitam S/o Nawal, Girraj S/o Kunwar Singh,Harchandi S/o Maharaj Singh, Tulsi S/o Bhawar Singh, Bhawar SinghS/o Lehri, Nirto S/o Bhanwar Singh, Chatar S/o Lal Singh, Gultia S/oNand Ram, etc. of Jat caste were present during the Panchayat. Mangtu,Raman, Kamal, Bacchu, Baato, Gutia, and others physically assaultedVijendra and Ram Kishan during the Panchayat which was convenedon 26.03.1991 at 9 pm and continued till 5 am next day. Vijendra andRam Kishan were hung upside down and their private parts were burnt.Mangtu, Nawal, Harchandi, Tulsi and other members of the Panchayatannounced the unanimous view of the Panchayat that Vijendra and RamKishan should be hanged to death. Vijendra, Ram Kishan and Roshniwere taken to ‘Banyan tree’ near the house of Radhey Shyam Jogi andthe parents of the three youngsters were compelled to tighten the noosearound the neck of their children. Parents of Vijendra and Ram Kishanwere physically assaulted when they refused to hang their children andwere ultimately made to hang them forcefully by putting their hands onthe ropes and pulling it. The dead bodies of Vijendra, Ram Kishan andRoshni were then taken to the cremation ground and were crematedbetween 8 am to 9 am on 27.03.1991. During the course of Panchayatfrom 9 pm on 26.03.1991 to the next day morning on 27.03.1991 till thecremation was concluded, nobody was allowed to leave the village.Somehow, Amichand escaped from the village after the cremation andreached the police station at Barsana to lodge the complaint. Upon lodging

Aof the complaint, PW-20, SI Kripal Singh Rathi, Police Station Barsana,rushed to the place of occurrence and doused the pyre at the cremationground. He collected the remaining pieces of flesh and bones andrecovered Loongi and watch of deceased Vijendra from the place ofcremation. On the basis of statement of PW 14 Hukam Singh, 15 accusedincluding Daya Ram and others were arrested and the injured familyBmembers of the deceased Vijendra and Ram Kishan were sent formedical examination.

9. 54 accused persons were charged under Sections 302/149 ofIPC. During the course of the trial, applications were filed forconsolidation of the cases in which the High Court stayed the trial inC1992 which subsisted till 1998. 20 witnesses were examined by theprosecution and 4 witnesses were produced by the defence. When thetrial resumed in 1998, 12 out of the 20 prosecution witnesses turnedhostile.

10. PW-1 Shanti, mother of Ram Kishan, was initially examinedDon 09.04.1992. She stated that at 9 pm on 26.03.1991 Naval Singh, Pritam,Girraj, Bhagantu, Dayaram, Ram Singh, Raman, Bacchu, Hari Ram,Gutiya, Batesh, Lal, Ram Singh son of Handu, Daya Ram S/o Susse,Billi, Chatar, Harchand, Rajendra, Harchandi, Bagle, Kamal came toher house and forcibly took Ram Kishan. Her husband Maharam andEher son Vijay Singh followed them. She also rushed to the room of Mangtuwhere Daya Ram gave her lathi blow due to which two of her teethbroke. She deposed that Ram Kishan was hung upside down in theroom. Vijay Singh was also given two/three lathi blows due to which hetried to run away but was caught and confined in the room of Mangtu.Unable to see the torture of her children, PW-1 went back to her house.FNext day morning, the son of her sister informed that the accused personswere hanging Ram Kishan. She reached the Banyan tree where shesaw Pritam, Naval Singh, Mangtu, Daya Ram, Deep Chand, Amar Singh,Ram Singh, Raman, Kamal, Dhani, Hari Ram, Gutiya, Bacchu, Jeevan,Deepi, Ram Singh, S/o Handu, Daya Ram, Billi Chattar, Harchand,GDharam Chand, Parbhi. Mangtu and Naval Singh tightened rope aroundthe neck of Ram Kishan which was pulled by Bato, Raman, Nirto,Bacchu, Kamal and Amar. Vijendra and Roshni were also hanged todeath. Thereafter, Ram Kishan, Vijendra and Roshni were cremated.She identified Mangtu, Deep Chand, Daya Ram S/o Amar Singh, RamSingh, Gudda, Bacchu, Nirto, Raman, Tulsi Ram, Hari Ram, Pappu, GangaH

Ram, Naval Singh, Pritam and Harchandi. After the interim order ofstay granted by the High Court was vacated, her evidence was recordedon 21.02.1998 during which she turned hostile.

11. PW-13, Vishram is the brother of Vijendra. He corroboratedthe statement made by PW-1 Shanti relating to Ram Kishan and Vijendrabeing taken to the Panchayat forcibly. He deposed that Roshni was alsosummoned to the Panchayat. He also mentioned the names of personsand the active role played by Naval Singh, Poorna, Deep Chand, Mangtu,Daya Ram, Kamal,Raman, Amar Singh, Ram Singh, Nathi,Gothari,Harkishan, Deepu, Bairam, Bacchu, Ganga Ram, Pappu, Batu, Jeevan,Ram Ji Lal, Ram Singh, Dharamveer, Duli, Daya Ram, Harchand, Pritam,Girraj, Harchandi, Tulsi, Chatar, Bhanwar Singh, Neto, Gutiya, Shayam,Dharam, Kashi, S/o Manni, Hari S/o Kallu, Kanni S/o Natthi, Bharti,Shreechand, Mahesh, Gopi, Balli, Lal Singh during the Panchayat. Hestated that Ram Kishan, Vijendra and Roshni were hung to death andthey were cremated later. He further stated that Vijendra did not die dueto hanging and was burnt alive. He deposed in the Court that he wasalso beaten up and categorically mentioned the names of Naval Singh,Mangtu, Daya Ram, Harchandi, Baato, Gutiya, Ram Singh, Karan, Deepi,Shreechand etc. who executed the hanging and Gutiya, Baato, Tej Singh,Bacchu, Karan, Jeevan and Sirro for their active role in cremating thebodies of Ram Kishan, Vijendra and Roshni. He stated that he wasmade to sit through the incident for 12 hours and was not allowed tomove even single inch. During the course of recording of his evidencePW-13 turned hostile. However, on being cross-examined again by thedefence, he deposed against the accused persons.12. PW-14, Hukum is the son of Shyama and brother of deceasedVijendra. He described the incident from 9 pm on 26.03.1991 till thenext day morning and stated in detail about the hanging and cremation ofRam Kishan, Vijendra and Roshni. He corroborated the evidence ofPW-1. He deposed before the Court about him being beaten up at hishome and at the panchayat and about the boundaries of the village beingguarded by the people belonging to the Jat caste who did not allowanybody to leave the village during the course of the incident.

13. PW-15, Amichand is the uncle of Ram Kishan and was thefirst informant who gave vivid description of the crime. He stated thathe came to village Mahrana to attend the Theravi Bhoj of Mangtu’smother. He gave the names of 35 persons in his complaint on 27.03.1991

Aand later, names of 19 other persons were furnished by him on 04.04.1991.In his evidence, PW 15 corroborated the evidence of PW-1 as well.

14. 54 persons were charged for offence under Sections 147,302/149, 323/149, 324/149 and 201/149 of IPC and Section 3(3)(10) ofSC/ST Act. Some of them died and some accused were juveniles. 39Baccused were tried by the Trial Court. Out of the 39 accused, three ofthem namely, Dayaram son of Inder, Harchandi son of Maharaj Singhand Hari son of Yadram died after their statements were recorded underSection 313 Cr.P.C. Except Balkishan son of Mansingh, and the 3 accusedwho died, remaining 35 accused were convicted by the Trial Court.

C15. Appeals were filed by these 35 convicts before the High Court.Out of the 35 convicts, the High Court acquitted two – namely Shivcharanson of Maniram and Singhram son of Maniram. The conviction of theremaining convicts was upheld by the High Court. However, the deathsentence awarded to the 8 accused was commuted to life imprisonmenttill the end of natural life.D

16. Against this judgement of the High Court, the following personshave filed Criminal Appeals before this Court:

In Criminal Appeal No. 186 of 2018

1. Hari son of Govinda

2. Lal Singh son of Khushi Singh

In Criminal Appeal No. 187 of 2018

3. Karan Singh son of Daya Ram

In Criminal Appeal No. 188 of 2018

4. Chattar Singh son of Lal Singh

5. Daya Ram son of Bhanwar Singh

6. Pritam son of Naval

7. Baato son of Bhambhu

8. Jeewan son of Bhaggo

9. Deepi alias Deep Chand son of Natthi

In Criminal Appeal No. 189 of 2018

10. Dharmvir son of Kanhaiya

HARI & ANR. v. THE STATE OF UTTAR PRADESH

[L. NAGESWARA RAO, J.]

11. Balli son of Kishan

12. Dharm son of Kallu

13. Gopi son of Hair

14. Girraj son of Govinda

15. Manni son of Natthi

16. Kashi son of Bhanwar Singh

17. Dharm son of Harchand

In Criminal Appeal Nos. 190-192 of 2018

18. Dhanni son of Ratan Singh

19. Nirto son of Bhanwar Singh

20. Girraj son of Kamar

21. Shrichand son of Deepchand

22. Tej Singh son of Karodi

23. Bachchu son of Nabali

24. Kamal son of Kanhaiya

25. Ram Singh son of Dayaram

26. Raman son of Roopi

27. Sirro son of Bhajini

28. Mahender son of Mantu

In SLP (Crl.) No. 1975 of 2018

29. Mangtu son of Sunder Lal

In Criminal Appeal No. 420 of 2021

30. Ganga Ram son of Heera Lal

In addition to the above Criminal Appeals, Criminal AppealNos.1553-1556 of 2018 have been filed by the State against thecommutation of death sentence awarded to eight accused to lifeimprisonment.

17. We are informed by the learned counsel for the Appellant thatduring the pendency of these appeals, 4 Appellants namely, Dayaram

Ason of Bhanwar Singh (Appellant 2 in Crl. A. 188 of 2018), Deepi aliasDeep Chand son of Natthi (Appellant 6 in Crl. A. 188 of 2018), Gopi sonof Hari Om (Appellant 4 in Crl. A. 189 of 2018) and Girraj son of Kamar(Appellant 3 in Crl. A. 190-192 of 2018) died. At present, we areconcerned with 26 Appellants.B18. The principles governing the interference by this Court in acriminal appeal by special leave have been laid down by this Court inDalbir Kaur v. State of Punjab[1] which are as follows: -

8. Thus the principles governing interference by this Courtin criminal appeal by special leave may be summarized asCfollows:

“(1) that this Court would not interfere with the concurrentfinding of fact based on pure appreciation of evidence evenif it were to take different view on the evidence;

(2) that the Court will not normally enter into reappraisementDor review of the evidence, unless the assessment of the HighCourt is vitiated by an error of law or procedure or is basedon error of record, misreading of evidence or is inconsistentwith the evidence, for instance, where the ocular evidence istotally inconsistent with the medical evidence and so on;

E(3) that the Court would not enter into credibility of theevidence with view to substitute its own opinion for that ofthe High Court;

(4) that the Court would interfere where the High Court hasarrived at finding of fact in disregard of judicial process,Fprinciples of natural justice or fair hearing or has acted inviolation of mandatory provision of law or procedureresulting in serious prejudice or injustice to the accused;

(5) this Court might also interfere where on the proved factswrong inferences of law have been drawn or where theGconclusions of the High Court are manifestly perverse andbased on no evidence.”

It is very difficult to lay down rule of universal application,but the principles mentioned above and those adumbrated inthe authorities of this Court cited supra provide sufficientH1 (1976) 4 SCC 158

guidelines for this Court to decide criminal appeals by specialleave. Thus, in criminal appeal by special leave, this Courtat the hearing examines the evidence and the judgment of theHigh Court with the limited purpose of determining whetheror not the High Court has followed the principles enunciatedabove. Where the Court finds that the High Court hascommitted no violation of the various principles laid down bythis Court and has made correct approach and has notignored or overlooked striking features in the evidence whichdemolish the prosecution case, the findings of fact arrived atby the High Court on an appreciation of the evidence in thecircumstances of the case would not be disturbed.

19. In the said judgment, this Court observed that the evidenceand the judgment of the High Court is examined for the limited purposefor determining whether or not the High Court has followed theaforementioned principles. If the High Court has committed no error orviolation of the said principles and has not ignored or overlooked strikingfeatures of the evidence which demolish the prosecution case, the findingsof fact arrived at by the High Court on an appreciation of the evidencein the circumstances of the case would not be disturbed. Article 136 ofthe Constitution of India is an extraordinary jurisdiction which this Courtexercises when it entertains an appeal by special leave and this jurisdiction,by its very nature, is exercisable only when this Court is satisfied that itis necessary to interfere in order to prevent grave or serious miscarriageof justice. Mere errors in appreciation of the evidence are not enough toattract this invigilatory jurisdiction[2]. It is not the practice of this Court toreappreciate the evidence for the purpose of examining whether thefinding of fact concurrently arrived at by the High Court and thesubordinate courts is correct or not. It is only in rare and exceptionalcases where there is some manifest illegality or grave and seriousmiscarriage of justice that this Court would interfere with such findingof fact[3].20. Regarding the argument on behalf of the accused personswith respect the contradictions and inconsistencies in the evidence ofthe eye-witnesses, the High Court found that the contradictions andinconsistencies indicated in the statements of the four eye-witnesses

2 Ramaniklal Gokaldas v. State of Gujarat, (1976) 1 SCC 6

3 Duli Chand v. Delhi Admn., (1975) 4 SCC 649

Awere trivial in nature. Following the law laid down by this Court in Stateof MP v. Ramesh[4], the High Court ignored the contradictions andinconsistencies which did not affect the substratum of the prosecution’scase. The High Court disapproved the approach of the Trial Court indiscarding the formula of at least two witnesses deposing the presence/overt act of the accused in case where large numbers of accused areBinvolved. The High Court followed the rule laid down by this Court inMasalti v. State of UP[5], that in cases of mob violence, it would be safeto examine that at least two persons depose about the presence of anaccused. The High Court gave benefit of doubt to Shiv Charan andSingh Ram whose presence/involvement was spoken by only one witness.CConcurrent findings of fact pertaining to the commission of the crimeand involvement of the appellant cannot be subjected to further scrutinyby this Court, according to the well-established law laid down by thisCourt. It is not necessary to undertake fresh appraisal of the evidenceas we are not inclined to take view different from the concurrentfindings since the appreciation of evidence by the Courts below is notDerroneous[6].21. The evidence of the four eye-witnesses was summarised bythe High Court by chart which forms part of its judgment and isreproduced as follows: -

“…Before giving the chart we would like to clarify that weEhave compartmentalized the events comprising the occurrenceinto five parts, these read as under:

1. Calling of the deceased Ram Kishan and Vijender fromtheir houses, briefly referred as ‘to call’ in the table.

2. Participation in the Panchayat briefly referred to asFpanchayat

3. Hanging by the tree, briefly indicated as place of executionand supplement by their specific acts.

4. Dragging the dead bodies to the marethan and brieflyindicated by word ‘dragged’.G

5. Burning the dead bodies after putting them on pyre, briefly-referred by word ‘fire’.

4 (2011) 4 SCC 786

5 1964 (8) SCR 133

6 Kaur Sain v. State of Punjab, (1974) 3 SCC 649

1043ABCDEFGH

ABCD

22. From the evidence of PW-1, PW-13, PW-14 and PW-15 whoare eye-witnesses, the medical and scientific evidence, and documentaryevidence it is proved that Ram Kishan, Vijendra and Roshni were torturedEand then were killed by hanging. Thereafter, their bodies were cremated.We are of the opinion that the testimonies of the eye-witnesses arecredible and have been rightly accepted by the Courts below. Therecovery of white Tahmad and clothes of deceased Ram Kishan, recoveryof clothes of Vijendra, recovery of half burnt pieces of bones, ribs, spinalcord, parts of intestine and burnt pieces of flesh support the prosecution’sFversion about the burning of the bodies of the deceased. The murder ofRoshni, Vijendra and Ram Kishan is established beyond doubt. Thequestion that falls for our consideration is the culpability of the Appellants.The eye-witnesses’ account of PW-1 Shanti, PW-13, PW-14 and PW-15 was believed by the Courts below. They have stated about theGinvolvement of the appellants and ascribed specific overt acts to someof them. The role assigned to each of the appellants by the witnesses isfound in the chart referred to above.

23. No reliance can be placed on the evidence of the eye-witnessPW-1 Shanti who has turned hostile, according to the Appellants.

Rejecting this contention, the High Court was of the opinion that theevidence of PW1 cannot be eschewed from consideration only on theground that they turned hostile. The relevant portion of their testimonywas rightly relied upon by the High Court after recording the compellingreasons prompting the 12 prosecution witnesses, including PW1, to turnhostile.

24. The evidence of PW-1 was initially recorded on 09.04.1992.She has narrated the sequence of events and the involvement of theaccused in the crime. Thereafter, due to an interim order passed by theHigh Court, the trial was stayed for period of six years. When she wasrecalled to depose in Court on 21.02.1998, she turned hostile. The reasonsfor PW-1 turning hostile are understandable as she comes from lower-strata of the society, living in village dominated by the caste to whichthe accused persons belong. She deposed about the incident and theinvolvement of the Appellants in detail and was later declared hostilealong with 11 other prosecution witnesses.

25. It is well settled that the evidence of prosecution witnessescannot be rejected in toto merely because the prosecution chose to treatthem as hostile and cross-examined them. The evidence of such witnessescannot be treated as effaced or washed off the record altogether but thesame can be accepted to the extent that their version is found to bedependable on careful scrutiny thereof[7]. It is for the Judge of fact toconsider in each case whether as result of such cross-examinationand contradiction, the witness stands thoroughly discredited or can stillbe believed in regard to part of his testimony. If the Judge finds that inthe process, the credit of the witness has not been completely shaken,he may, after reading and considering the evidence of the witness, as awhole, with due caution and care, accept, in the light of the other evidenceon the record, that part of testimony which he finds to be creditworthyand act upon it[8].

26. Even if the witnesses have turned hostile, their evidence canbe accepted, if they are natural and independent witnesses and have noreason to falsely implicate the accused. In Mrinal Das and Others v.State of Tripura[9 ]this Court observed that credible evidence even of ahostile witnesses can form the basis for conviction in criminal trial.

7 Radha Mohan Singh v. State of UP, (2006) 2 SCC 450

8 Syad Akbar v. State of Karnataka, AIR 1979 SC 1848

9 (2011) 9 SCC 479

A27. In the present case, the evidence of PW1 finds completecorroboration from the evidence of PW13, PW14, and PW15 who arealso the reliable eye-witnesses of the incident. The testimony of PW1 isunshaken and it was only after long period of stay of trail for 6 years,that she turned hostile. The Courts below were right in placing relianceon the testimony of PW 1, who is also reliable witness, for the convictionBof the accused persons even after she was declared hostile.

28. Right to testify in Courts in free and fair manner without anypressure and threat whatsoever is under serious attack today. If one isunable to testify in Courts due to threats or other pressures, then it is aclear violation of Article 19 (1) (a) and Article 21 of the Constitution.CRight to life guaranteed to the people of this country also includes in itsfold the right to live in society which is free from crime and fear andthe right of witnesses to testify in Courts without fear or pressure. Itneeds to be emphasised that one of the main reasons for witnesses toturn hostile is that they are not accorded appropriate protection by theDState. It is harsh reality, particularly, in those cases where the accusedpersons/criminals are tried for heinous offences, or where the accusedpersons are influential persons or in dominating position that they makeattempts to terrorise or intimidate the witnesses because of which thesewitnesses either avoid coming to Courts or refrain from deposingtruthfully. This unfortunate situation prevails because of the reason thatEthe State has not undertaken any protective measures to ensure thesafety of these witnesses, commonly known as “witness protection”[10].

29. The State has definite role to play in protecting the witnesses,to start with, at least in sensitive cases involving those in power, whohave political patronage and could wield muscle and money power, toFavert trial getting tainted and derailed and truth becoming casualty. Asa protector of its citizens, it has to ensure that during trial in the courtthe witness could safely depose the truth without any fear of being hauntedby those against whom the witness had deposed. Every State has aconstitutional obligation and duty to protect the life and liberty of itsGcitizens. That is the fundamental requirement for observance of the ruleof law. There cannot be any deviation from this requirement because ofany extraneous factors like caste, creed, religion, political belief orideology.[11]

10 Mahender Chawla & Ors. v. Union of India & Ors. (2019) 14 SCC 615

H11 Zahira Habibullah Sheikh and Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374

30. While taking note of these exigencies with respect tosafeguarding the rights of the witnesses deposing before court, theWitness Protection Scheme, 2018 which was drafted by the Ministry ofHome Affairs was approved by this Court in Mahender Chawla &Ors. v. Union of India & Ors. (supra). Thereafter, in Ashwin KumarUpadhyay v. Union of India and Anr.,[12] direction was given by thisCourt to the Union of India and the State Governments to strictly enforcethe Witness Protection Scheme, 2018.

31. The present case squarely falls under the situationscontemplated by this Court while necessitating the formulation of scheme/guidelines/programmes for protection of witnesses. Implementation ofthe Witness Protection Scheme at the time when the witnesses weredeposing in the present case, would have prevented the prosecutionwitnesses from turning hostile. If the material witnesses were relocatedfrom the village and escorted to the courtroom, they would have deposedfreely in court.

32. The next contention on behalf of the appellants is that theinformant Amichand initially mentioned the names of only 35 persons on29.03.1991. 10 days thereafter, he implicated 19 other persons. TheAppellants contended that 19 persons who were made accused 10 daysafter the registration of the FIR are falsely implicated after deliberations.The explanation given by the informant Amichand that he was not in aproper frame of mind when he gave the complaint on 27.03.1991 andthat he was in the hospital for the next ten days, attending to his familymembers who were physically assaulted and only after that he couldgive the names of the rest of the accused on 04.04.1992, was rightlyaccepted by the Courts below. PW-15 Amichand managed to escapethe well-guarded boundaries of the village after witnessing prolongedtorture of the deceased persons for nearly 12 hours throughout the nightand reached the police station to lodge the complaint. He would nothave been able to mention all the names of those involved due to thetrauma of witnessing an egregious crime which resulted in the murderof his nephew and two other persons.

33. The Appellants submitted that the testimonies of the eye-witnesses suffer from contradictions and inconsistencies and deserve tobe rejected. We have carefully examined the evidence of PW-1, PW-13, PW-14 and PW-15 and we are in agreement with the Courts below

Athat the all four witnesses are reliable and the inconsistencies andcontradictions in their evidence are trivial. The ghastly crime wascommitted at four different places for prolonged period of more than12 hours. Inconsistencies in the version of the witnesses are natural,especially when large number of persons are involved.

B34. Ms. Amita Gupta, learned counsel for the Appellants arguedthat some of the Appellants have not been assigned any active role inthe commission of the offence and their conviction for being membersof the unlawful assembly is unsustainable. She stated that they are mereonlookers or by standers and they cannot be stated to be members of anunlawful assembly.C

35. Section 149 of the Indian Penal Code is declaratory of thevicarious liability of the members of an unlawful assembly for acts donein prosecution of the common object of that assembly or for such offencesas the members of the unlawful assembly knew would be committed inprosecution of that object. If an unlawful assembly is formed with theDcommon object of committing an offence, and if that offence is committedin prosecution of the object by any member of the unlawful assembly, allthe members of the assembly will be vicariously liable for that offenceeven if one or more, but not all committed the offence. Again, if anoffence is committed by member of an unlawful assembly and thatEoffence is one which the members of the unlawful assembly knew to belikely to be committed in prosecution of the common object, everymember who had that knowledge will be guilty of the offence socommitted[13]. It is not necessary for the prosecution to prove each of themembers’ involvement especially regarding which or what act (Masaltisupra). While overt act and active participation may indicate commonFintention of the person perpetrating the crime, the mere presence in theunlawful assembly may fasten vicariously criminal liability under Section149[14].36. Common object is different from common intention as it doesnot require prior concert and common meeting of minds before theGattack. It is enough if each has the same object in view and their numberis five or more and that they act as an assembly to achieve that object.The common object of an assembly is to be ascertained from the actsand language of the members composing it, and from consideration of

13 Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725H14 Lalji v. State of U.P. (1989) 1 SCC 437

all the surrounding circumstances. It may be gathered from the courseof conduct adopted by the members of the assembly[15].

37. In Kattukulangara Madhavan (dead) through LRs. v.Majeed and Ors.[16], this Court held as follows: -

“23. In the first place, the presence of an accused as part ofan unlawful assembly, when not as curious onlooker or abystander, suggests his participation in the object of theassembly. When the prosecution establishes such presence,then it is the conduct of the accused that would determinewhether he continued to participate in the unlawful assemblywith the intention to fulfil the object of the assembly, or not. Itcould well be that an accused had no intention to participatein the object of the assembly. For example, if the object of theassembly is to murder someone, it is possible that the accusedas particular member of the assembly had no knowledge ofthe intention of the other members whose object was to murder,unless of course the evidence to the contrary shows suchknowledge. But having participated and gone along with theothers, an inference whether inculpatory or exculpatory canbe drawn from the conduct of such an accused. The followingquestions arise with regard to the conduct of such an accused:

1. What was the point of time at which he discovered that theassembly intended to kill the victim?

2. Having discovered that, did he make any attempt to stopthe assembly from pursuing the object?

3. If he did, and failed, did he dissociate himself from theassembly by getting away?

The answer to these questions would determine whether anaccused shared the common object in the assembly. Withoutevidence that the accused had no knowledge of the unlawfulobject of the assembly or without evidence that after havinggained knowledge, he attempted to prevent the assembly fromaccomplishing the unlawful object, and without evidence thatafter having failed to do so, the accused disassociated himselffrom the assembly, the mere participation of an accused insuch an assembly would be inculpatory.

15 Charan Singh v. State of U.P., (2004) 4 SCC 205

16 (2017) 5 SCC 568

A38. The harrowing torture of the three deceased which commencedat 9 pm on 26.03.1991 and continued till 9 am on the next day i.e.,27.03.1991 with the participation of the Appellants in the Panchayat,was proved by the testimony of the eye-witnesses. Specific overt actshave been ascribed to some of the appellants - Balli, Girraj, Chatar Singh,Preetam, Mangtu, Jeevan, Bachchu, Kamal, Ram Singh, Raman forBdragging the deceased from their houses to the panchayat of Mangtu;appellants Karan Singh, Ram Singh for physically assaulting the deceasedand their family members; appellants Bacchu, Kamal, Raman, Mangtufor forcing the parents of the deceased to hang them; appellants Nirto,Girraj, Preetam, Mangtu, Naval, Baato, Jeevan, Bachchu, Kamal, RamCSingh, Srichand for being involved in the hanging of the deceased;appellants Baato, Jeevan, for dragging the bodies of the deceased to thecremation ground and appellants Baato, Jeevan, Bachchu, Karan Singh,Sirro for lighting the fire to the bodies of the deceased at the cremationground. Following the well settled principles laid down by this Court, weare satisfied that the Courts below committed no error in convicting theDappellants under Section 302 with the aid of Section 149 IPC. Even inrespect of those who are not assigned any active role or overt act, thereis no doubt that they shared the common object to punish the deceasedand kill them. Their presence in the Panchayat continuously for nearly12 hours without any protest or any attempt made by them to stop theEviolence would lend support to the prosecution version that all theappellants shared the common object of murdering the deceased.

39. Two young men and woman were physically assaulted fornearly 12 hours and killed by the accused for violating caste-ridden societalnorms. These episodes of caste-motivated violence in the countryFdemonstrate the fact that casteism has not been annihilated even after75 years of independence. According to Dr. B. R. Ambedkar, inter-caste marriage is one remedy to get rid of casteism in order to achieveequality. His vision for ensuring justice and equality to all sections of thesociety, especially to the repressed segments, is well enshrined in thepreamble of the Constitution. The bigotry perpetuated by such caste-Gbased practices which are prevalent even today, impedes this objectiveof the Constitution of equality for all its citizens. Proposal of marriage byRoshni who belongs to Jat community, with Vijendra who is Jatav, hasresulted in their deaths. Though the number is tad less, honour killingshave not stopped in this country and it is high time that the civil societyHreacts and responds with strong disapproval about the ghastly crimescommitted in the name of caste. This Court issued several directions tothe administrative authorities and police officials to take strong measuresto prevent honour killings. Honour killings pursuant to the decree of KhapPanchayats have been strongly criticized by this Court in ArumugamServai v. State of Tamil Nadu[17]. Harsh punishment was recommendedto those brutal and feudal minded persons who commit atrocities in thename of castes. The Law Commission of India in its 242[nd] Reportsuggested the legal framework on Prevention of Interference with theFreedom of Matrimonial Alliances in the name of Honour and Tradition.The Law Commission was of the opinion that there must be thresholdbar against congregation or assembly for the purpose of objecting to andcondemning the conduct of young persons of marriageable age marryingaccording to their choice, the ground of objection being that they belongto the same gotra or to different castes or communities. ThePanchayatdars or caste elders have no right to interfere with the life andliberty of such young couples whose marriages are permitted by lawand they cannot create situation whereby such couples are placed in ahostile environment in the village/locality concerned and exposed to therisk of safety. The Law Commission further recommended that the veryassembly for an unlawful purpose viz. disapproving the marriage whichis otherwise within the bounds of law and taking consequential actionshould be treated as an offence as it has the potential to endanger thelives and liberties of individuals concerned.

40. In Shakti Vahini v. Union of India and Ors.[18], this Courtdirected the Union of India and the State Governments to take preventivesteps to combat honour crimes, to submit National Plan of Action andState Plan of Action to curb crimes of the said nature. The StateGovernments were directed to constitute special cells in each districtwhich could be approached by the couples for their safety and well-being. This Court suggested preventive steps, remedial measures andpunitive measures as follows: -

“55.1. Preventive steps

55.1.1. The State Governments should forthwith identifydistricts, sub-divisions and/or villages where instances ofhonour killing or assembly of khap panchayats have beenreported in the recent past, e.g., in the last five years.

17 (2011) 6 SCC 40518 (2018) 7 SCC 192

55.1.2. The Secretary, Home Department of the Statesconcerned shall issue directives/advisories to theSuperintendent of Police of the districts concerned forensuring that the officer in charge of the police stations ofthe identified areas are extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction comesto their notice.

55.1.3. If information about any proposed gathering of akhap panchayat comes to the knowledge of any police officeror any officer of the District Administration, he shall forthwithinform his immediate superior officer and also simultaneouslyintimate the jurisdictional Deputy Superintendent of Policeand Superintendent of Police.

55.2 Remedial measures

55.2.1. Despite the preventive measures taken by the StatePolice, if it comes to the notice of the local police that thekhap panchayat has taken place and it has passed any diktatto take action against couple/family of an inter-caste orinter-religious marriage (or any other marriage which doesnot meet their acceptance), the jurisdictional police officialshall cause to immediately lodge an FIR under the appropriateprovisions of the Penal Code including Sections 141, 143,503 read with Section 506 IPC.

55.2.2. Upon registration of FIR, intimation shall besimultaneously given to the Superintendent of Police/DeputySuperintendent of Police who, in turn, shall ensure thatFeffective investigation of the crime is done and taken to itslogical end with promptitude.

55.2.3. Additionally, immediate steps should be taken toprovide security to the couple/family and, if necessary, toremove them to safe house within the same district orelsewhere keeping in mind their safety and threat perception.The State Government may consider of establishing safehouse at each District Headquarter for that purpose. Suchsafe houses can cater to accommodate:

(i) young bachelor-bachelorette couples whose relationshipis being opposed by their families/local community/khaps, and

(ii) young married couples (of an inter-caste or inter-religiousor any other marriage being opposed by their families/localcommunity/khaps).

Such safe houses may be placed under the supervision of thejurisdictional District Magistrate and Superintendent ofPolice.

55.2.4. The District Magistrate/Superintendent of Police mustdeal with the complaint regarding threat administered to suchcouple/family with utmost sensitivity. It should be firstascertained whether the bachelor-bachelorette are capableadults. Thereafter, if necessary, they may be provided logisticalsupport for solemnising their marriage and/or for being dulyregistered under police protection, if they so desire. After themarriage, if the couple so desire, they can be providedaccommodation on payment of nominal charges in the safehouse initially for period of one month to be extended onmonthly basis but not exceeding one year in aggregate,depending on their threat assessment on case-to-case basis.

55.2.5. The initial inquiry regarding the complaint receivedfrom the couple (bachelor-bachelorette or young marriedcouple) or upon receiving information from an independentsource that the relationship/marriage of such couple isopposed by their family members/local community/khaps shallbe entrusted by the District Magistrate/Superintendent ofPolice to an officer of the rank of Additional Superintendentof Police. He shall conduct preliminary inquiry and ascertainthe authenticity, nature and gravity of threat perception. Onbeing satisfied as to the authenticity of such threats, he shallimmediately submit report to the Superintendent of Policein not later than one week.

55.2.6. The District Superintendent of Police, upon receiptof such report, shall direct the Deputy Superintendent ofPolice in charge of the sub-division concerned to cause toregister an FIR against the persons threatening the couple(s)and, if necessary, invoke Section 151 CrPC Additionally, theDeputy Superintendent of Police shall personally supervisethe progress of investigation and ensure that the same is

completed and taken to its logical end with promptitude. Inthe course of investigation, the persons concerned shall bebooked without any exception including the members whohave participated in the assembly. If the involvement of themembers of khap panchayat comes to the fore, they shall alsobe charged for the offence of conspiracy or abetment, as thecase may be.

55.3 Punitive measures

55.3.1. Any failure by either the police or district officer/officials to comply with the aforesaid directions shall beconsidered as an act of deliberate negligence and/ormisconduct for which departmental action must be taken underthe service rules. The departmental action shall be initiatedand taken to its logical end, preferably not exceeding sixmonths, by the authority of the first instance.

55.3.2. In terms of the ruling of this Court in ArumugamServai [Arumugam Servai v. State of T.N., (2011) 6 SCC 405: (2011) 2 SCC (Cri) 993] , the States are directed to takedisciplinary action against the officials concerned if it isfound that:

(i) such official(s) did not prevent the incident, despite havingprior knowledge of it, or

(ii) where the incident had already occurred, such official(s)did not promptly apprehend and institute criminal proceedingsagainst the culprits.

55.3.3. The State Governments shall create Special Cells inevery district comprising of the Superintendent of Police, theDistrict Social Welfare Officer and District Adi-DravidarWelfare Officer to receive petitions/complaints of harassmentof and threat to couples of inter-caste marriage.

55.3.4. These Special Cells shall create 24-hour helpline toreceive and register such complaints and to provide necessaryassistance/advice and protection to the couple.

55.3.5. The criminal cases pertaining to honour killing orviolence to the couple(s) shall be tried before the designatedcourt/fast track court earmarked for that purpose. The trial

must proceed on day-to-day basis to be concluded preferablywithin six months from the date of taking cognizance of theoffence. We may hasten to add that this direction shall applyeven to pending cases. The District Judge concerned shallassign those cases, as far as possible, to one jurisdictionalcourt so as to ensure expeditious disposal thereof.”

41. In order to implement the recommendations of the LawCommission in its 242[nd] Report, the State of Rajasthan has enacted theRajasthan Prohibition of Interference with the Freedom of MatrimonialAlliances in the Name of Honour and Tradition Act, 2019 on the samelines. In the interest of liberty and dignity of young men and women inchoosing their life partners and in the interest of peace, tranquillity andequality in the society, it is imminently necessary that the directions issuedby this Court in Shakti Vahini v. Union of India and Ors. (supra)should also be carried out by the State Governments without any furtherdelay.

42. In United Kingdom and Canada, racial and religiously motivatedcrimes are treated as aggravating factors for enhanced punishment.Section 145 of the Criminal Justice Act, 2003 (UK) provides that theCourt must treat an offence which was racial or religiously incensed asan aggravating factor. In Canada, Courts are guided by the followingprinciples while imposing the sentence: -

“Other sentencing principles

718.2 court that imposes sentence shall also take intoconsideration the following principles:

(a) sentence should be increased or reduced to account forany relevant aggravating or mitigating circumstances relatingto the offence or the offender, and, without limiting thegenerality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudiceor hate based on race, national or ethnic origin, language,colour, religious, sex, age, mental or physical disability, sexualorientation, or gender identity or expression, or on any othersimilar factor,

(ii)…..(vi)

Shall be deemed to be aggravating circumstances;”

A43. Though racial/religiously motivated actions are not codified tobe an aggravating circumstance for enhancement of penalties for crime,the principle is well recognized by the Supreme Court of US as held inWisconsin v. Mitchell[19]. In that case, Mitchell was convicted foraggravated battery by the Circuit Court of Kenosha County, Wisconsinand sentenced to imprisonment for period of four years when theBmaximum sentence for the offense was two years. The enhancedsentence was based on the Hate Crimes Statues of Wisconsin whichprovided for longer maximum sentence. The enhanced sentence wasupheld by Wisconsin Court of Appeals which was reversed by theWisconsin Supreme Court. The Supreme Court of US set aside theCfindings of the Wisconsin Supreme Court and held that Mitchell’s FirstAmendment freedom of speech and association rights were not violatedby the application of the penalty-enhancement sentencing provision. TheSupreme Court referred to Blackstone who said, “it is but reasonablethat among crimes of different natures those should be most severelypunished, which are the most destructive of the public safety andDhappiness.”

44. In India, imposition of death sentence can be only after specialreasons are recorded as per Section 354 (3) of the Code of CriminalProcedure, 1973. In Bachan Singh v. State of Punjab[20], this Courtheld that while ascertaining the existence or absence of the specialEreasons, the Court must pay due regard both to the crime and criminal.Relative weightage has to be given to the aggravating and mitigatingfactors depending upon the facts and circumstances of each case.Accepting the suggestions of Dr. Chitale, this Court held the followingfactors as indicators of aggravating circumstances: -F

“202. Drawing upon the penal statutes of the States in U.S.A.framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) ofthe Penal Code, 1860 (Amendment) Bill passed in 1978 bythe Rajya Sabha, in particular, Dr. Chitale has suggested theseG“aggravating circumstances”:

“Aggravating circumstances: court may, however, in thefollowing cases impose the penalty of death in its discretion:

19 [508 US 476 (1993)]H20 (1980) 2 SCC 684

(a) if the murder has been committed after previous planningand involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of member of any of the armed forces ofthe Union or of member of any police force or of any publicservant and was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be doneby such member or public servant in the lawful discharge ofhis duty as such member or public servant whether at the timeof murder he was such member or public servant, as the casemay be, or had ceased to be such member or public servant;or

(d) if the murder is of person who had acted in the lawfuldischarge of his duty under Section 43 of the Code of CriminalProcedure, 1973, or who had rendered assistance to aMagistrate or police officer demanding his aid or requiringhis assistance under Section 37 and Section 129 of the saidCode.”

45. This Court made it clear that judicial discretion was not beingfettered by making an attempt to have an exhaustive enumeration. InMachhi Singh v. State of Punjab[21 ]this Court summed up the factorsthat may be taken into account by the Court for imposition of deathsentence: -

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal,grotesque, diabolical, revolting or dastardly manner so as toarouse intense and extreme indignation of the community. Forinstance,

(i) when the house of the victim is set aflame with the end inview to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture orcruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his bodyis dismembered in fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for motive which evincestotal depravity and meanness. For instance when (a) hiredassassin commits murder for the sake of money or reward (b)a cold-blooded murder is committed with deliberate designin order to inherit property or to gain control over propertyof ward or person under the control of the murderer orvis-a-vis whom the murderer is in dominating position or ina position of trust, or (c) murder is committed in the coursefor betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of member of Scheduled Caste orminority community etc., is committed not for personal reasonsbut in circumstances which arouse social wrath. For instancewhen such crime is committed in order to terrorize suchpersons and frighten them into fleeing from place or inorder to deprive them of, or make them surrender, lands orbenefits conferred on them with view to reverse past injusticesand in order to restore the social balance.

(b) In cases of “bride burning” and what are known as“dowry deaths” or when murder is committed in order toremarry for the sake of extracting dowry once again or tomarry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instancewhen multiple murders say of all or almost all the members ofa family or large number of persons of particular caste,community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child whocould not have or has not provided even an excuse, muchless provocation, for murder (b) helpless woman or aperson rendered helpless by old age or infirmity (c) when the

victim is person vis-a-vis whom the murderer is in positionof domination or trust (d) when the victim is public figuregenerally loved and respected by the community for theservices rendered by him and the murder is committed forpolitical or similar reasons other than personal reasons.

46. The ghastly murders of three youngsters which are honourkillings squarely falls under the head of anti-social and abhorrent natureof the crime as mentioned in Machhi Singh v. State of Punjab (supra).

47. Appellants Tej Singh s/o Karodi, Kamal s/o Kanyaiya, Sirros/o Bhanji, Bachchu s/o Nawali, Ram Singh s/o Dayaram, Raman s/oRoopi and Karan s/o Dayaram were sentenced to death by the TrialCourt for committing the gruesome murders of three youngsters in abarbaric manner. However, the High Court converted the death sentenceof the above Appellants to that of life imprisonment till their last breath.The reasons given by the High Court for converting the death sentenceof the above Appellants to life imprisonment are the advance age ofsome of the Appellants, the passage of long time after the commissionof crime and mental sufferings that they have undergone. Keeping inview the facts and circumstances of this case, we uphold the judgmentof the High Court insofar as the conversion of death sentence to lifeimprisonment in respect of accused Tej Singh s/o Karodi, Kamal s/oKanyaiya, Sirro s/o Bhanji, Bachchu s/o Nawali, Ram Singh s/o Dayaram,Raman s/o Roopi and Karan s/o Dayaram. The Criminal Appeal Nos.1553-1556 of 2018 filed by the State of Uttar Pradesh are, therefore,dismissed.

48. Insofar as the Appellant Hari son of Govinda is concerned, hisname was mentioned by PW-13 who deposed that he was present at thePanchayat. PW-1 and PW-15 referred to the name of Hari Ram, whoalso happens to be one of the accused with the name Hariram son ofYadram. The High Court followed the suggestion given by this Court inMasalti’s case and held that conviction with the aid of Section 149 IPCcan be only in case where at least two witnesses speak about theinvolvement of person. Regarding the presence of Hari son of Govindawhich was mentioned only by PW-13, we are of the considered viewthat he is entitled for acquittal. PW-13 also deposed that Lal Singh sonof Khushi was also present at the Panchayat. PW-1 testified in the Courtthat one Lal arrived at her door with lathi. PW-15 also mentioned thepresence of Lala in the Panchayat. In addition to Lal Singh, one Lala

Ason of Ramji Lal was also one of the accused. As only one witnessspoke about the presence of Lal Singh son of Khushi, he is also entitledfor acquittal.

49. There are two persons with the same name. One is theAppellant before this Court who is Girraj son of Govinda and the other isBGirraj son of Kamar who passed away during the pendency of theproceedings in this Court. The eye-witnesses mentioned the name ofGirraj without giving the name of his father. In such circumstances, it isnot clear whether Girraj son of Kamar or Girraj son of Govinda wasinvolved. In such circumstances, Appellant Girraj son of Govinda isentitled for the benefit of doubt in view of the confusion in his identityCand presence during the crime. For the aforesaid reasons, Hari son ofGovinda (Appellant No. 1 in Crl. A. No. 186 of 2018), Lal Singh son ofKhushi Singh (Appellant No. 2 in Crl. A. No. 186 of 2018) and Girrajson of Govinda (Appellant No. 5 in Crl. A. No. 189 of 2018) are acquitted.50. For the aforementioned reasons, we uphold the judgment ofDthe High Court and affirm the conviction and sentence imposed on theaccused namely Dhanni s/o Ratan Singh, Nitro s/o Bhanwar Singh,Srichand s/o Deep Chand, Tej Singh s/o Karodi, Bachchu s/o Nabali,Kamal s/o Kanhaiya, Ram Singh s/o Dayaram, Raman s/o Roopi, Sirros/o Bhajni, Mahender s/o Mangtu, Chattar Singh s/o Leelay, Pitam s/oENaval, Bato s/o Bhaggo, Jivan s/o Bhaggo, Karan Singh s/o Dayaram,Mangtu s/o Sunder Lal, Ganga Ram s/o Heeralal, Dharamvir s/oKanhaiya, Balli s/o Kishan Lal, Dharam s/o Kallu, Manni s/o Natthi,Kashi s/o Bhanwar Singh and Dharam s/o Harchand. Accused namelyHari s/o Govinda, Lal Singh s/o Khushi Ram and Giriraj s/o Govinda areacquitted in view of the ambiguity in their identity.F

51. In view of the above, the Criminal Appeals are disposed of.

Nidhi Jain

Appeals disposed of.