# SHAMSHUL KANWAR v. ' STATE OF U.P. MAY4, 1995

- **Citation:** [1995] 3 S.C.R. 1197
- **Court:** Supreme Court of India
- **Decided:** 1995
- **Case number:** Criminal Appeal No. 887 of 1994
- **Bench:** M.M. Punchhi, K. Jayachandra Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shamshul-kanwar-v-state-of-u-p-may4-1995-12940
- **Pages:** 38

## Headnote

B
Indian Penal Code 1860: S.302 read with S.149--Faction fighting with
1
deadly weapons resulting in death of ten persons-All deceased belonging to
-'
prosecution party who had come to village for a burial-Held, accused party
were the aggressors; shared common object of unlawful assembly to kill mem- c
bers of the prosecuting party.
Code of Criminal Procedure: Ss.235(2), 366-l>eath sentence-Faction
fight invqlving atiack with rifles and deadly weapons resulting in death of ten
persons-High Cowt confirming death sen:ence awarded to leader of accused
D
p011y-Held: accused did not act in diabolical manner to bring the case within
the meaning of 'rarest of rare' cases ; sentence commuted to life imprisonment.
I
Code of Criminal Procedure 1973 : S.177r-f'olice officer witnessing
rioting making notes in general diary about movements but not names of E
accused and witnesses-Whether absence of such details makes presence of
Police Officer and his version doubtful-Held, general diary was not case
diary within the meaning of S.172 and no details other than movements need
be mentioned; evidence of Police Officer corroborates evidence of other eye
witnesseHndian Evidence Act 1872, Ss.145, 161.
,,
F
Village Sakhni, District Bulandshahr was faction ridden. Accused
SK led one faction and MH led the other. In the year 1981 one MB
belonging to the party of SK was murdered. In that case 12 persons
Including MH were tried and convicted. When they were out of jail they
were threatened by SK and his family.
G
MH's mother-in-law died in Delhi ten days prior to the occurrence of
February 1, 1989. In accordance with her last wish that she should be burled
in. her family graveyard, MH and others carried the dead body i11 a truck
to Sakbnl. The S.H.O. Jabanglrabad sent an escort comprising of an A.S.I.
and two armed constables. After reaching Sakhni, the 'janaza' (funeral) H
1197
1198
SUPREME COURT REPORTS
(1995]3 S.C.R.
A
was performed and they proceeded to the graveyard. Noticing that there
was tension in the village, the ASI talked to SK who told him that his
brother was killed by the other party and that he could not do anything. As
~
the body was being buried and the last earth poured, SK came there with
20 to 22 men armed with rifles, runs, farsas, knives, ballams and churies
etc. Seeing an additional police party approaching, SK, his younger brother
B RZ and their followers fired indiscriminately and assaulted the persons
gathered with their ballams and farsas. Ten persons were killed.
The trial court sentenced SK and RZ, and four associates to death.
It sentenced eleven others to imprisonment for life. The High Court while
C maintaining the death sentence awarded to SK, reduced the sentence
awarded to RZ and the four associates to life imprisonment. Two of the
accused were acquitted. The remaining accused and the State appealed.
The accused, inter alia, contended that the general diary maintained
by the ASI, the key prosecution witness, and produced in court as an
D exhibit, did not contain the names of the accused or witnesses and that
accordingly the presence of the ASI at the occurrence was itself doubtful.
Alternatively it was contended that the version of the eye witnesses was of
interested persons and should be rejected.
Partly allowing SK's appeal and dismissing the other appeals, this
E Court
HELD : 1.1. The ten persons who were killed admittedly belong to the
prosecution party participating in the funeral and many of them were from
Delhi. The accused party were the aggressors and indulged in indis·
criminate firing causing the death of so many people of the opposite party.
F There cannot be any doubt that they were the members of the unlawful
assembly and such of those whose presence as members of the unlawful
assembly is established cannot but be held guilty. (1222-B·E]
1..2 In an occurrence of this magnitude where several persons have
G participated it would not be possible for the witnesses to specify the part
played by each of the

## Text

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(
SHAMSHUL KANWAR
A
v.
'
STATE OF U.P.
MAY4, 1995
[M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.]
B
Indian Penal Code 1860: S.302 read with S.149--Faction fighting with
1
deadly weapons resulting in death of ten persons-All deceased belonging to
-'
prosecution party who had come to village for a burial-Held, accused party
were the aggressors; shared common object of unlawful assembly to kill mem- c
bers of the prosecuting party.
Code of Criminal Procedure: Ss.235(2), 366-l>eath sentence-Faction
fight invqlving atiack with rifles and deadly weapons resulting in death of ten
persons-High Cowt confirming death sen:ence awarded to leader of accused
D
p011y-Held: accused did not act in diabolical manner to bring the case within
the meaning of 'rarest of rare' cases ; sentence commuted to life imprisonment.
I
Code of Criminal Procedure 1973 : S.177r-f'olice officer witnessing
rioting making notes in general diary about movements but not names of E
accused and witnesses-Whether absence of such details makes presence of
Police Officer and his version doubtful-Held, general diary was not case
diary within the meaning of S.172 and no details other than movements need
be mentioned; evidence of Police Officer corroborates evidence of other eye
witnesseHndian Evidence Act 1872, Ss.145, 161.
,,
F
Village Sakhni, District Bulandshahr was faction ridden. Accused
SK led one faction and MH led the other. In the year 1981 one MB
belonging to the party of SK was murdered. In that case 12 persons
Including MH were tried and convicted. When they were out of jail they
were threatened by SK and his family.
G
MH's mother-in-law died in Delhi ten days prior to the occurrence of
February 1, 1989. In accordance with her last wish that she should be burled
in. her family graveyard, MH and others carried the dead body i11 a truck
to Sakbnl. The S.H.O. Jabanglrabad sent an escort comprising of an A.S.I.
and two armed constables. After reaching Sakhni, the 'janaza' (funeral) H
1197
1198
SUPREME COURT REPORTS
(1995]3 S.C.R.
A
was performed and they proceeded to the graveyard. Noticing that there
was tension in the village, the ASI talked to SK who told him that his
brother was killed by the other party and that he could not do anything. As
~
the body was being buried and the last earth poured, SK came there with
20 to 22 men armed with rifles, runs, farsas, knives, ballams and churies
etc. Seeing an additional police party approaching, SK, his younger brother
B RZ and their followers fired indiscriminately and assaulted the persons
gathered with their ballams and farsas. Ten persons were killed.
The trial court sentenced SK and RZ, and four associates to death.
It sentenced eleven others to imprisonment for life. The High Court while
C maintaining the death sentence awarded to SK, reduced the sentence
awarded to RZ and the four associates to life imprisonment. Two of the
accused were acquitted. The remaining accused and the State appealed.
The accused, inter alia, contended that the general diary maintained
by the ASI, the key prosecution witness, and produced in court as an
D exhibit, did not contain the names of the accused or witnesses and that
accordingly the presence of the ASI at the occurrence was itself doubtful.
Alternatively it was contended that the version of the eye witnesses was of
interested persons and should be rejected.
Partly allowing SK's appeal and dismissing the other appeals, this
E Court
HELD : 1.1. The ten persons who were killed admittedly belong to the
prosecution party participating in the funeral and many of them were from
Delhi. The accused party were the aggressors and indulged in indis·
criminate firing causing the death of so many people of the opposite party.
F There cannot be any doubt that they were the members of the unlawful
assembly and such of those whose presence as members of the unlawful
assembly is established cannot but be held guilty. (1222-B·E]
1..2 In an occurrence of this magnitude where several persons have
G participated it would not be possible for the witnesses to specify the part
played by each of them. It is clear from the facts and circumstances and
from the evidence t!>at snch of those accnsed who came to the scene of
occurrence armed with lethal weapons in a group and proceeded to par·
ticipate in the attack, shared the common object of the unlawful assembly
namely to attack and kill the members of the opposite party. Consequently
H they would be liable under Sections 302/149 I.P.C. (1222-H, 1223-A)
,
SHAMSHULKANWAR v. STATEOFU.P.
1199
Masalti and Ors. v. The State of Uttar Pradesh AIR (1965) SC 202 and A
Lalji and Others v. State of U.P., AIR (1989) SC 754, referred to.
2.1. The death sentence awarded to SK should be reduced to imprisonment for life. It is not established that the rifle shot tired SK alone
was responsible for causing the death of one of the deceased. SK did not
act in a cruel and diabolical manner so as to bring bis case within the B
meaning of 'rare.st of rare cases". The large number of deaths on one side
cannot ipso facto be a ground to bring the case into the category of 'rarest
of rare cases'. [1234-C, 1233-G-H, 1229-F]
2.2. The contention by the State that death sentence should be C
awarded to all the accused bas to be rejected. In the background of bitter
enmity infuriation was common to every member of the accused party who
were closely related to each other. Therefore they could have become
uncontrollable. Considering the facts and circnmstances of the case death
sentence s.hould not be awarded to these live accused at this distance of
time. [1230-H, 1234-B, 1232-E]
D
Bachan Singh v. State of Punjab, [1980] 2 SCC 684;Machhi Singh v.
State of Punjab, [1983] 3 SCC 470;Allaudin Mian v. State of Bihar, [1989]
3 SCC 5;Dennis Councle Mcgautha v. State of California, 402 US 183, 28 L
Ed 2d 111;Francis alias Ponnan v. State ofKerala, AIR (1974) SC 2281 and E
Bhoor Singh v. State of Punjab, AIR (1974) SC 1256, referred to.
3.1. The evidence of the ASI amply corroborates the evidence of the
other eye-witnesses whose presence at the scene of occurrence cannot be
doubted. [1221-G]
3.2. The general diary cannot be said to be an entry in case diary
within tl/e meaning of S.172 Cr.P.C. nor it is a statement recorded under
S.161 Cr.P.C. The ASI as an officer on duty made the entries in the diary
kept in the station which is also called general diary and different from
"case diary". [1221-F]
3.3. The diary contemplated under Section 172 Cr.P.C. can be of two
F
G
-•
parts; the lirst one relating to the steps taken during the course of
investigation by the police officer with particular reference to time at which
the police received the information and the further steps taken during the
investigation like visiting the places etc. and the second part contains H
('
.
1200
SUPREME COURT REPORTS
[1995] 3 S.C.R.
A statement of the circumstances ascertained during the investigation which
obviously relate to the statements recorded by the officer in terms of S.161
Cr.P.C. and other relevant materials gathered during the investigation.
The copies of the second part which mainly contains the statements of the
witnesses as a matter of course are. supplied to the accused persons. The
B diary referred to in s.172 and which the court may call for and which can
be used to the limited extent mentioned therein obviously refers to the first
part. [1218-C-D, 1219-D]
3.4. The entries in a police diary are neither substantive nor corroborating evidence and they ~annot be used by or against any other
C witness than the police officer and can only be used to the limited extent
indicated above. Legislative change is necessary providing for framing of
appropriate and uniform regulations regarding the maintenance of the
diaries by the police for the purpose contemplated by S.172 Cr.P.C.
[1213-B, 1220-D]
D
Queen Empress v. Mannu, ILR Allahabad Vol. XIX 390; Dal Singh v.
King Emperor, AIR (1917) P.C. 25; Pulukuri Kottaya v. King Emperor, AIR
(1947) PC 61;Niranjan Singh v. State of Uttar Pradesh, AIR (1957) SC 142;
Habeeb Mohammad v. The State of Hyderabad, [1954] SCR 475; Khatri and
Others (IV) v. State of Bihar and Others, [1981] 2 SCC 493; Mukund Lal v.
Union of India, AIR (1989) SC 144 and State of Bihar v. P.P. Shanna, [1992]
E Supp. lSCC 222, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
887 of 1994 Etc.
From the Judgment and Order dated 20.8.1994 of the Allahabad
F
High Court in Cd.A.No. 1492 of 1992.
Rajendra Singh, U.R. Lalit, S.B. Sanyal, Govind Mukhoty, Dr. N.M.
Gbtate, Ms. Lata Krishnamurthy, Dhirendra, S.U. Lalit, M.C. Dbingra,
Raju Ramachandran, Ejaz Maqbool, Mankad D. Adbkar, Pramod Swarup,
G AS. Pundir, R.C. Verma, Ashok Mathur, K.C.M. Khan, Shiv Pujan Singh,
N.K. Upadbyay, Rao Ranjit, R.D. Upadbyay, Ms. Abba R. Sharma, V.P.S.
Fauzdar, Spl. Prosecutor for the appearing parties.
The Judgment of the Court was delivered by
H
K. JAYACHANDRA REDDY, J, A rioting of grave nature took place
'
(
SHAMSHULKANWARv. SI'ATEOFU.P. [K JAYACHANDRA REDDY,J.] 1201
in Village Sakhni within the limits of Police StationJahangir~bad in District A
Bulandshahr at about 3.30 P.M. on 1.2.89 in the course of which 11 people
died and some others were .injured including a police constable who was
on bandobust duty. In respect of this occurrence 21 _accused were tried for
offences punishable under Sections 148, 302/149, 307/149 and 332/149
I.P.C. and Section 25 of the Arms Act. The trial court acquitted A-9 Asgar, B
A-19 Munna Baboo, A-20 Jarrar and A-21 Israr and convicted the remaining accused. Out of them six were sente1iced to death and the rest to
imprisonment for life and also· for shorter terms of imprisonment for the
other offences. The convicted accused preferred appeals to the High Court
and the trial Judge also made a reference for confirmation of death
sentence. The State also filed two appeals one being against the. acquittal c
of the four accused and the other appeal was for enhancemept of sentence
of imprisonment of life of the 11 accused to death. The· High Court
acquitted A-3 Vilayat Hussain and A-18 Ali and confirmed the death
sentence of A-1 Shamshul Kanwar but reduced the sentence of death in
respect of other five accused to one of imprisonment. for life. With this D
modification all the appeals filed by the accused as well as the State were
I
disposed of by a common judgment. In this Court, as against the said
judgment, A-1 Shamshul Kanwar has filed Criminal Appeal No. 887/94,
A-JO Rais has filed Criminal Appeal No. 888/94 and A-2 Rashidul Zafar
and other convicted accused have preferred Criminal Appeal Nos. 889891/94. Criminal Appeal Nos. 270-275/95 are filed by the State again for E
enhancement of the sentence of imprisonment of life to death and also
against acquittal of six accused. Since these appeals arise out of a common
judgment of the High Court, the same can be disposed of together by us.
Village Sakhni was faction-ridden. A-1 Shamshul Kanwar was, at the F
relevant time, the Pradhan of the Village and he led one.faction and the
other faction was led by P.W. 4 Mohd. Hussain and others. In the year
1981 one Mirja Badar belonging to the party of A-1 was murdered. In that
case 12 persons including P.Ws. 1, 2 and 4 were tried in -a long-drawn trial
and were convicted. They remained in jail during the trial and also after G
•
conviction except Kalin Beg alias Kalina who was granted bail on some
. ...
compassionate ground. They filed an appeal in the High Court and also
1
sought bail. In the first instance the bail was refused and later they were
.granted bail. When they were out of jail they were"threatened by A-1 and
members of his family. They were not allowed to enter the boundaries of
the Village. Therefore P.W. 4 and others left the Village and began to live H
1202
SUPREME COURT REPORTS
[1995) 3 S.C.R.
A at Delhi. P.W. 4's mother-in-law, an old lady, alongwith her husband went
to Delhi to the residence of P.W. 4, 10 or 12 days prior to the present
occurrence. She was suffering from some mental trouble and also severe
asthama. She died on the intervening night of 31.1.89 and 1.2.89 at about
9.30 P.M. Before her death she expressed her last wish that her body during
B the 'janaza' (funeral) should be buried in her family grave-yard in the very
Village Sakhni. In accordance with her wish P.W. 4, his father, P.W. 1,
P.W.2 and others about eight persons alongwith women-folk carried the
dead body in a truck and started to Village Sakhni at about 6 A.M. on
1.2.89. They reached Village Dariyapur on the way at about 8 A.M. P.W.
4 reached the residence of his friend namely Pradhar. of Village Dariyapur
C and took the help of four persons who also followed the party armed with
their licenced guns and the party reached Bulandshahr where P.W. 4 and
his father met the Labour Minister who was camping there and requested
him to provide police assistance as they were apprehending danger to their
lives at the hands of A-1 and others. The Minister addressed a letter to the
D S.H.O, Jahangirabad Police Station. They left Bulandshahr at about 10
A.M. with the truck and reached Jahangirabad Police Station at about 11
A.M. and met the S.H.O. and handed over the letter of the Minister
alongwith an application seeking police help. The S.H.O. sent an escort
comprising of an A.SJ., P.W.20 and two armed constables. All of them left
E Jahangirabad which is about four kms. away and reached Village Sakhni
at about 11.30 A.M. and stopped the truck outside the house of the dead
old lady. The dead body was taken inside and the 'janaza' (funeral) was
prepared according to the rites and from the Village they went to the
grave-yard. The ten deceased persons namely Munnawar Hussain s/o Kallu
F Beg, Kallu Beg s/o Waqar Ali, Mohd. Ali s/o Avej Ali, Ashgar s/o Bulaki
Hussain, Munnawar Hussain s/o Haji Mohd., Azad Ali s/o Barakat Ali,
Jmdad Hussain s/o Farkat Hussain, Shabir Hussain s/o Haji Mohd.,
Shakuat Ali s/o Kale hussain and Farkat Ali s/o Mohd. Hussain were also
among them and they participated in the funeral. P.W. 20, A.SJ. who
escorted them having noticed that there was tension in the Village, by way
G of abundant caution, went to Shamshul Kanwar, Pradhan (A-1) and had a
talk with him. It appears that A-1 told him that his brother was killed by
the other party and that he cannot do anything. P.W. 20, however, asked
him to understand the situation and returned to the place of funeral. He
/Iii.
felt that the tension has become more serious and that the police force with
H him was not sufficient and he asked one of the persons gathered there to
(
SHAMSHULKANWARv. STATEOFU.P. (K.JAYACHANDRA REDDY,J.( 1203
inform the Police Station on telephone from Village Alipur to send more A
·1
force at the grave-yard. The people who had come from Delhi and
Dariyapur and some people of the Village alongwith the police force were
. there. The dead body was buried according to the customs and when the
people were pouring the last earth, A-1 came there with 20 to 22 men
armed with rifles, runs, farsas, knives, ballams and chhuries etc. and B
blocked the area. It is alleged thatA-1 said that he would give them lesson
for entering the Village to bury the dead body. Thereupon his younger
brother Rashidul Zafar alias Chotta, A-2 exhorted that they have plenty of
arms and nobody could go safe. Seeing the seriousness of the situation,
AS.I., P.W. 20 asked again P.W. 4 to send one man immediately to Village c
Alipur to phone to the Police Station for addition.al force. In the meantime
the additional police party was seen coming from the side of Jahangirabad.
Just then A-1 and A-2 fired with their rifles towards the gathering near the
grave-yard and their followers also fired. With the firing of A-1 and A-2
two persons, Shabir Hussain, deceased no. 1 and his younger brother
Munnawar Hussain, deceased no. 2, fell down. Meanwhile people ran D
helter skelter for saving their lives but the accused went on firing indisI
criminately as a result of which deceased no. 3 to deceased no. 8 received
injuries and fell down. Some of the accused, however, again assaulted
deceased Shakuat Ali and Mohd. Ali with the ballams and farsas. P.W. 3
also was assulted by the accused Nisar s/o Saklain, Bhura and Jarrar with E
ballams and farsas. Thereupon AS.I., P.W. 20 challenged the accused who
started firing at the police who after giving a warning fired 4 or 5 rounds
and one of the persons Razi in the ac"\lsed party received an injury and
fell down on the road. He was, however, carried by his associates. The
police party managed to surround four of the accused namely Nisar s/o F
. Saklain, Nisar alias Baddu s/o Mohd. Hussain, Balloo and Masita alias
Ranjha and took them into custody alongwith their respective bloodstained weapons. At the place of occurren~e it was found that out of the
persons who participated in the funera~ Master Shabir Hussain, his brother
Munnawar Hussain, Imdad Hussain, Munnawar Hussain s/o Kalloo Beg,
Kalloo Beg, Shaukat Ali, Mohd. Ali, Farkat Ali and Ashgar Abid (9 G
persons) had already died. Azad Ali, Mohd. Taqi and Firdos Ali were in
'
injured condition and one police constable also was found with an injury.
The Village people and the relations of the injured carried them from the
place of occurrence for treatment. Out of them Azad Ali, deceased no. 10,
died later in the hospital. It is also alleged that four persons who were H
•
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SUPREME COURT REPORTS
[1995) 3 S.C.R.
A brought from Dariyapur were confined by the accused near the Sheesham
tree and all their guns also were taken away. Razi, one of the persons of
the accused party died later. P.W. 4, however, scribed the earliest report,
went to the Police Station accompanied by six persons at about 5.30 P.M.
and submitted the report. The case was registered and the investigation
B
commenced. Inspector, P.W. 8, reached the scene of occurrence at about
7 P.M. and took the four accused into custody. P.W. 8 seized the weapons
that were recovered and also the empty cartridges at the scene of occurrence and prep.ared the necessary panchnamas and sent all the dead bodies
for post-mortem.
C
The Doctors, P.Ws. 9, 10, 11 and 13 conducted the post-mortems on
the dead bodies and they found fire-arm injuries on many of the deceased
persons and also incised injuries on some of them. The accused were
arrested on various dates and some weapons were recovered. After completion of the investigation the charge-sheet was laid. The prosecution in
D support of its case examined 32 witnesses and P.Ws. 1 to 4 -and 20 mainly
figured as eye- witnesses. Out of them P.Ws. 1 and 3 are injured witnesses.
P.W. 6, the Doctor, examined P.W. 1 on 6.2.89 and found one fire-arm
injury on the right leg. On being x-rayed a radio opaque shadow was also
found indicating that he received injury from a fire- arm. P.W. 6 also
examined P.W. 3 Mohd. Taqi and he found three wounds and injuries nos.
E . 2 and 3 were such which could have been caused by a fire-arm and x-ray
also confirmed the same.
All the accused;when examined under Section 313 Cr.P.C., denied
the incident and pleaded ignorance. They also stated that they were not
F
aware about the death of the old lady or about the burial. In general they
stated that they were implicated because of enemity apart from individually
giving the particulars of hostility between them and the prosecution party.
The trial court accepted the evidence of the eye-witnesses alongwith the
evidence of P.W. 20. The trial court, however, acquitted A-9 on the ground
that he was aged about 82 years and that he had a cataract in the right eye
G
and as seen in the court, he was very old and in a tottered condition and
that a doubt arose about his being a member of the unlawful assembly and
participating in the occurrence and accordingly he was given benefit of
doubt. The trial court acquitted A-19, A-20 and A-21 on the ground that
while the witnesses alleged that they were armed with spears and used
H
them, the Doctors did not find any injury which could have been caused
,.. ~
SHAMSHULKANWAR,.STAlEOFU.P.(KJAYACHANDRAREDDY,l.J 1205
by a spear on any of the injured persons and therefore their presence at A
the scene of occurrence was doubtful. The trial court sentenced A-1 and
A-2, who opened the fire, to death and A-11, A-15, A-16 and A-17 who
were arrested on the spot holding that A-1 and A-2 initiated the attack by
firing their rifles which hit deceased nos. 1 and 2 and that other fou~
accused persons who were arrested on the spot were armed with deadly B
weapons and inflicted injuries on Sabir Hussain, Shaukat.Ali and Mohd.
Ali, the deceased persons and thus took an active part and therefore they
deserve the extreme penalty. The trial court convicted the remaining 11
accused also under Sections 302/149 and for other offences but awarded
imprisonment for life. The High Court acquitted A-3 on the ground that
use of rifle by him was doubtful. The High Court also acquitted A-18 on C
· the ground that the overt act namely that he inflicted injuries with the knife
on the deceased Farakat Hussain, attributed to him becomes doubtful since
there is no corresponding injury which could have been caused by such a
weapon. The High Court, however, reduced the death sentence of A-2
holding that he being a younger brother followed the orders of A-1, his D
elder brother and at his instigation he used his rifle once and therefoie his
case stands on a different footing. The death sentence awarded to A-11,
A-15, A-16 and A-17 who were arrested on the spot was also reduced to
imprisonment for life by the High Court holding that their case stands on
•
the same footing as that of other accused who also gave farsa blows to the
deceased Shabir Hussain but sentenced to imprisonment for life only and E
therefore a distinction cannot be made between these four and the others.
Regarding the case of A- 1, Shamshul Kanwar, the High Court took the
view that he was in a commanding position and he could have stopped the
entire massacre and that he behaved with least reasonableness and therefore the death sentence has to be maintained.
F
Shri Rajendra Singh, learned senior counsel appearing for A-1 submitted that all the eye-witnesses are interested and they have not come
forward with the real version and that there was only a fight between two
parties and as· to how it originated, the prosecution is silent and that no
independent witness has been examined. Learned counsel mainly relied on G
the general diary entry Ex.Ka-124 made by P.W. 20 and pointed.out that
the version mentioned therein is somewhat different and that none of the
particulars spoken to by P.W. 20 now are mentioned therein and therefore
the present version is a result of consultations and fabrications and it is
highly doubtful whether A-1 and other accused were present at the scene H
1206
SUPREME COURT REPORTS
[1995) 3 S.C.R.
A of occurrence and the assailants, whoever they may be, must have acted in
their self- defence. Shri U .R. Lalit, learned senior counsel appearing for
A- 2, A-14, A-15 and A-16 submitted that P.Ws. 1 to 4 figured as accused
in the other case and were convicted and therefore they were all out to
implicate all their enemies and that there was delay in examining and
recording the statements of P.Ws. 1 and 3 and that P.W. 4's evidence
B bristles with discrepancies and improvements in material particulars and
that in a case like this an identification parade was absolutely necessary
but not held. He also pleaded that the case of A-2 is in no way different
from that of A-3 who was acquitted. Shri Raju Rarnachandran, learned
counsel appearing for the remaining appellants while adopting the argue ments of the other two learned counsel, however, further contended that
it cannot be definitely said that all the accused were present at the scene
of occurrence only as members of the unlawful assembly and since the
occurrence has taken place in the Village itself it is quite possible that they
might have been there only as onlookers or by-standers and that mere
D attribution of overt acts to .them by the interested witnesses, in such as
sitnation, cannot be a safe test to fix their presence as members of the
unlawful assembly. Shri R.C. Verma, learned counsel appearing for the
State contended that this is a fit case where the appeals by the State should
be allowed having regard to the magnitude of the occurrence during which
as many as 10 persons belonging to the prosecution party were killed in a
E
brutal manner and that acquittal of these accused should be set aside and
death sentence should be awarded to all of them.
F
Since it is a case of death sentence, we have heard all the learned
counsel at great length and we have been taken through the entire records.
Before we proceed to consider their submissions, we would like to briefly
refer to the evidence of the eye-witnesses which has been believed by both
the courts below and consider whether the so-called infirmities in their
evidence pointed out by the learned counsel are of any significance and
whether there are good grounds for interference as sought by the State?
G
P.W. 4 is th.e main eye-witness in the case and he gave the F.I.R. In
his chief examination he was given the details of tile previous incident
including the earlier murder case and about the party factions in the
Village. He has also given all the details about their movements on the day
of occurrence and how they picked up four armed people at Dariyapur
H and how they enlisted the police help and further details regarding the
SHAMSHULKANWARv. STAIB OFU.P. [KJAYACHANDRAREDDY,J.] 1207
funeral. He mentioned the presence of P.W.l, P.W. 2, P.W. 3 and 10 A
f
deceased persons being present at the time of funeral. Then coming to the
actual occurrence he deposed that after burial of the dead body they were
about to leave for their residences at about 3.30 P.M. and just then he saw
from the side of the temple A-1 and A-2 armed with rifles and several other
accused armed with guns and some of them also being armed with knives B
and farsas near the temple. The accused came towards the west of the road
and A-1 exhorted saying that they will teach them a lesson for entering the
Village for burying the dead body. Thereupon his brother A-2 exhorted the
•
other accused to ensure that none of their enemies in the prosecution party
should get away alive. P.W. 20, AS.I. was pacifying and as he sensed c
danger he asked P.W. 4 to send some man to ring up the Police Station
asking for more help. P.W. 4 thereupon sent one Sajjad. In the meantime
the additional police help consisting of two police parties having six constables and 2 S.Is. were seen coming from near the temple. Having seen
the police parties, A-1 and A-2 again exhorted other accused saying that
they have enough of arms and they need not be afraid of anybody. P.W. 4 D
further deposed that A-1 and A-2 in the first instance fired simultaneously
at the prosecution party and they hit Shabir hussain, deceased no. 1 and
his younger brother Munnawar Hussain, deceased no. 2, who having
received the injuries fell down. At the same time Vilayat Hussain, A-3 and
Rais, A-10 fired at them and that_ the accuse_d also fired at the police party E
and there was a stampede. P.W. 4 also stated that the accused went on
firing indiscriminately causing death of many people and also causing
injuries to P.Ws. 1 and 3 as well as to one constable Kaushi Ram. He stated
that deceased nos. 3 to 8 fell down near the huts. Thereafter they were
again assaulted by Nisar alias Baddu, A-11, Munna Baboo A-19 and Israr, F
A-21 with their ballams and Masita A-16 and Balloo A-17 with their knives.
Nisar A-15 and Bhoora A-13 caused injuries to P.W. 3 with Churri and
farsa and Jarrar A-20 with his ballam. Thereupon AS.I., P.W. 20 cha!-
lenged the accused and when the accused tried to fire against the police,
the police in turn fired about 4 or 5 rounds and Razi, one of the members
G
of the accused party, received injury and fell down near the road. Thereupon the accused ran helter skelter and accused Razi also was carried away
'
by his associates. The police party however surrounded four accused i.e.
A-11, A-15, A-16 and A-17 with theif weapons which blood-stained. Thereafter P.W. 4 and one Gulbeg, P.W. 2 arrived at the place of occurrence
and found all the deceased lying and P .W s. 1 and 3 also with injuries. They H
1208
SUPREME COURT REPORTS
(1995] 3 S.C.R.
A were carried from the place of occurrence for treatment. Azad Ali,
deceased no. 10 whci was also injured was carried to the hospital but died
later. P.W. 4 scribed the F.I.R., Ka-6 at the factory of one Hyder Ali and
lodged the same in the Police Station at about 5.30 P.M. He was cross-examined at length and certain contradictions and omissions have been
B elicited. Both the courts below have considered them and have rightly held
that t!iey do not affect the veracity of his evidence. P.Ws. 1 and 3 also have
given more or less the same version. It may not be necessary for the
purpose of these appeals to discuss their evidence in detail once again in
view of the concurring findings.
C
The main submission of the learned counsel is that they are interested witnesses inasmuch as admittedly they were accused in the earlier
case and there would be tendency on their part to implicate many accused
and that their evidence regarding the genesis of the occurrence is artificial
and at any rate they have not come out with the whole truth. It is in this
D context that the learned counsel strenuously contended that for quite some
time the accused did not do anything and according to the prosecution it
is only after the burial, the occurrence took place and there is no reason
whatsoever for the accused to indulge in indiscriminate firing at that stage
and that having regard to the tension prevailing and because of some
E
provocative incident that took place there must have been a melee and
cross-firing between the police and the four armed men from Dariyapur
and some persons belonging to the accused party. Learned counsel also
contended that the F.I.R. is a result of consultations and fabrication and
in the absence of the evidence of any independent witness it would be
F
highly unsafe to place reliance on these partisan witnesses and there would
have been many innocent by-standers and onlookers including some of the
accused and therefore it cannot be held that a specific case is made out
against these accused being members of the unlawful assembly with the
common object of committing the murder. It is in this context that the
learned counsel referred to the evidence of P.W. 20, A.S.L in the light of
G
the entry in general diary Ka-124 and contended that there was no mention
of any of the details of occurrence in that exhibit and that shows that the
interested witnesses have later come forward with this fabricated and
exaggerated version implicating all the accused. It is appropriate at this
stage to consider the evidence of P.W. 20 and the submissions made by the
H learned counsel regarding the evidentiary value or otherwise of Ex.Ka- 124.
r
SHAMSHULKANWARv. SfATE OFU.P. (K.JAYACHANDRA REDDY,J.] 1209
P.W. 20 deposed that on 1.2.89 he was working as A.S.I., Jahan- A
girabad Police Station and at about 11 A.M., P.W. 4 came with two more
y
persons and. met the S.I. Satbir Singh, P.W. 8 and asked for police force
for the cremation of his mother-in-law. On their .application P.W. 8
directed P.W. 8 to take two constables for the cremation""Of the dead body
in Village Sakhni. P.W. 20 took two constables and proceeded on his own
motor bike. He took his service revolver and cartridges and the two B
constables took rifles and cartri_dges. On the way he noticed the truck
which was carrying the dead body alongwith 16 to 17 persons. They reached
the house of the dead lady and stayed outside the house. The persons and
'·• ,
women who came in the truck went inside the house. P.W. 20 noticed that
there was tension in the Village and learnt that it was due to enemity c
between the Pradhan of the Village Sharnshul Kanwar, A-1 and those
persons who came with the dead body. P.W. 20 posted his constables giving
some instructions and went to the house of A-1 and had a talk with him.
P.W. 20 deposed that A-1 told him that those persons had murdered his
brother and now they have come with the police and that he could no! do D
anything. Thereupon P.W. 20 asked A-1 to understand the situation and
came back to the house of the dead lady. After reaching the place he felt
that the tension was serious and that the force was not sufficient. He asked
one of the persons gathered there to telephone to the Police Station from
Village J alipur to send more force. Meanwhile the 'janaza' was ready and E
it .• was taken to the ancestral graveyard _of the Village at about 2.30 P.M.
by the people who had come from Delhi and some of the local people.
P.W. 20 and other constables as well as the four armed men from Village
Dariyapur were following the 'janaza', some of them in the front and some
of them in the back. The 'janaza' was brought to the ldgah of the graveyard F
and some prayers were offered. Then the body was buried according to the
customs and those persons were pouring the last earth. Just at that time
A-1 came there with 20 to 22 men armed with guns, rifles, ballarns and
churries and they blocked the area form the side of the temple. A-1 said
that they would teach those persons a lesson for entering the Village to
G
bury the dead body. His younger brother A-2 said that they have plenty of
arms and they were also inflqential. P.W. 20 tried to counselA-1. He also
asked P.W. 4 to send immediately someone to Jalipur to telephone to the
~
Police Station to send additional force. In the meantime obviously because
of the earlier telephone call additional force was seen coming. Just at that
juncture, according to P.W. 20, A-1 and A-2 fired with the rifles towards H
1210
SUPREME COURT REPORTS
(1995] 3 S.C.R.
A the gathering at the grave-yard. Two persons received bullet injuries and
fell down. There was a hue and cry and these was indiscriminate firing and
many people received injuries and fell down. Some of the accused persons
came and inflicted injuries with the sharp-edged weapons on some of the
fallen men. P.W. 20 further deposed that the accused persons also stopped
B the police party. P.W. 20 gave a warning to the accused persons and
proceeded towards them and the accused persons started firing towards
them. P.W. 20 in self defence fired with his service revolver and also asked
the two constables to fire two rounds. During that firing one of the
members of the accused party Razi sustained injury and fell down. The
other accused persons began to retreat. P.W. 20 and other constables,
C however, managed to capture four accused with their blood-stained
weapons. P.W. 20 identified those persons in the court and also added that
all the rest of the accused also were present in the court and he has known
them since before he saw them on the day of occurrence. P.W. 20
proceeded to state that during the occurrence some of the constables also
D were injured. He arrested the four accused who were caught and later P.W.
8 came with force at about 7. P.M. to whom he handed over the four
accused persons and the recovered arms. He stayed for the night in the
Village itself. In the chief examination various panchnamas regarding the
seizures and other particulars of scene of occurrence were marked. Then
E P.W. 20 was cross-examined. Then Ex.Ka-124 is marked and further crossexamination proceeded on the basis of its contents. Entry in the General
Diary marked as Ex.Ka-124 was written by P.W. 20 on 2.2.89 and it mainly
contains the details of his proceedings namely leaving the police station,
going to the scene of occurrence and the general outline of the occurrence
and the steps taken by him and his police party. P.W. 20 is cross-examined
F with reference to the contents and it has been pointed out by the defence
counsel that several details which P .W. 20 was giving in the court, have not
been noted. P.W. 20, however, asserted that it was not necessary to write
everything in the General Diary and what was written in the General Diary
was only a short narration of what he and his men did. Further cross
G examination proceeded and it was pointed out that no names of the
accused persons were mentioned nor the names of the witnesses nor other
details were mentioned. On the assumption that G.D. Entry Ex.Ka-124
should contain more 'details the main contention raised is that in the
absence of the same P.W. 20's presence itself should be doubted or in the
H alternative the present version given by the eye-witnesses who are inter-
SHAMSHULKANWARv. STATEOFU.P. IKJAYACHANDRA REDDY.J.) 1211
ested should be rejected. The question is whether this assumption' that the A
police officer should give all the details of the occurrence in the G.D. entry
like Ex.Ka-124 is correct. This warrants an examination of scope of Section
172 Cr.P.C. and also refer to some of the decisions on this aspect.
Section 172 Cr.P.C. reads as under:
B
"172. Diary of proceedings in investigation - (1) Every police officer
making an investigation Ujlder this chapter shall day by day enter
his proceedings in the investigation in a diary, setting forth the time
'
at which the information reached him, the time at which he began
and cJosed the investigation, the place or places visited by him,
and a statement of the circumstances ascertained through his c
investigation.
(2) Any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries, not
as evidence in the case, but to aid it in such inquiry or trial.
D
~j) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the Court; but, if they are used by
the police officer who made them to refresh his memory, or if the E
Court uses them for the purpose of contradicting such police
officer, the provisions of sectio':' 161 or section 145, as the case
may be, of the Indian Evidence Act (1 of 1872) shall apply."
This Section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. It is well-known that each F
State has its own police regulations or otherwise known as police standing
orders and some of them provide as to the manner in which such diaries
are to be maintained. These diaries are called case diaries or special
diaries. The Section itself indicates as to the nature of the entries that have
to be made and what is intended to be recorded is what the police officer G
did, the places where he went and the places which he visited etc. and in
general it should contain a statement of the circumstances ascertained
-"
through his investigation. Sub-section (2) is to the effect that a criminal
'
court may send for the diaries and may use them not as evidence but only
<
to aid in such inquiry or trial. The aid which the court can receive from
the entries in snch a diary usually is confined to utilising the information H
1212
SUPREME COURT REPORTS
[1995] 3 S.C.R.
A given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necesSary, in its discretion use the entries to contradict the police officer who made them. Coming
to their use by the accused, sub-section (3) clearly lays down that neither
the accused nor his agents shall be entitled to call for such diaries nor he
B or they may be entitled to see them merely because they are referred to by
the courts.