Allahabad HC commutes three death sentences because the trial judge drew no balance sheet
A Division Bench upheld the murder convictions for the 2012 attack with bamboo sticks in a Varanasi graveyard, but held that the Sessions Judge never weighed aggravating against mitigating circumstances and sent the three men to life imprisonment. The life sentence of the wife stands.
Four people were beaten to death in a graveyard in Varanasi on the evening of 16 June 2012, with green bamboo sticks lying on the ground. On 5 November 2026 the Allahabad High Court held that the convictions were safe, and then took three of the death sentences apart.
The Sessions Judge had pointed only to the injuries and the number of dead. He had drawn up no balance sheet of aggravating and mitigating circumstances, the High Court found, and the record had no evidence that the men were habitual criminals or a menace to society.
A Division Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi commuted the death sentences of Amzad, Ramzan and Arshad to life imprisonment. Justice Dwivedi delivered the judgment. The bench dismissed the appeal of Amzad’s wife, Shakeela, who was serving life.
Eight thirty, a graveyard and bamboo sticks
The informant, Md. Saeed alias Kaju, said he, two brothers and two nephews were walking from their house towards the mazar at about 8:30 p.m. when Amzad and members of his family, including his wife, attacked them with bamboo sticks. The attack was in the compound of Baba Rahim Shah Mazar in Beniabagh, which holds a graveyard.
Md. Shafeeq alias Raju, the informant’s elder brother and head of the mazar, died. So did a brother, Md. Shakeel alias Jau, and Kamil, who cleaned the mazar and ran to help. A nephew, Chand alias Raju, died on 20 June 2012 at a Varanasi hospital.
Another nephew, Md. Saif alias Shalu, lived but lost the sight of his left eye. The first information report was registered at Police Station Chowk at about 11:55 p.m. the same night.
Charges under Sections 147, 148, 302, 307, 323, 504 and 506 of the Indian Penal Code, read with Sections 34 and 149, were framed against five accused. The Sessions Judge acquitted one of them, Iqbal Rain, after finding his presence at the spot doubtful, and sentenced the other four on 14 October 2022.
A quarrel over graveyard land
According to the informant’s testimony, as the court summarised it, Amzad dug graves at the mazar and there was a dispute with the informant’s side over the graveyard land. He said Amzad and his sons had come to the house and abused the women of the family in vulgar language.
When the men confronted Amzad, he grew angry and threatened to kill them all. The accused then picked up green bamboo sticks that lay in the graveyard and are used when bodies are lowered into graves. The court recorded that they stopped only when the victims had fallen unconscious.
The accused denied everything in their statements under Section 313 of the Code of Criminal Procedure and said enmity lay behind the case. Iqbal Rain filed a written statement naming an advocate, Nasir Jamal, as a rival who had lodged two earlier cases against him in 2010 and pushed this FIR at the police station. No defence witness was examined.
The prosecution examined 13 witnesses, three of them eyewitnesses: the informant, Md. Saif and Najma. The rest were doctors and police officers, and the trial court marked 48 exhibits.
What each side argued
Mr Gaurav Kakkar, Senior Counsel, appeared for the appellants. He said the appellants were falsely implicated and that the informant’s side had gone to Amzad’s house, where a scuffle began and escalated in the heat of passion without premeditation. The bamboo sticks, he said, were already lying there.
The witnesses had also spoken of an axe and a spade, he said, yet no incised wound was found on any body. At most, he argued, the injuries to Md. Saif would amount to an offence under Section 325.
He pointed out that Iqbal Rain had been acquitted on the same evidence. Chand had lived for four days, yet no dying declaration was recorded. A third eyewitness, Najma, was not named in the FIR, he said, and the trial court itself had doubted her.
The State, through Mr Thakur Azad Singh, AGA, said the FIR named every appellant and all the injuries were on the head, which showed intent and a common object. It said four unarmed people were killed over the land of the graveyard.
Why the eyewitnesses were believed
The court found no inordinate delay in the FIR. One victim came from another family, and the informant’s family had first rushed their injured to hospital, which the bench called natural human conduct.
On lighting, it relied on the site plan, which showed petromax lamps burning at more than one place, and on its view that electric poles and bulbs would naturally be installed in the compound. The accused lived close by and were known to the informant’s family, so they could be recognised even in dim light.
The informant’s cross-examination ran over 13 dates between 10 July 2013 and 7 September 2016. The court held that the minor contradictions came from that long and repetitive questioning and from a man in shock after losing three relatives.
Md. Saif, the court said, was an injured eyewitness whose presence could not be doubted. His evidence and the informant’s corroborated each other, and the post-mortem reports and injury records supported both.
Because this was a case of direct evidence, the court said, motive lost its significance. It also noted that the appellants’ own memo of appeal described the incident as happening in the heat of the moment, which admitted their presence at the spot.
Exception 4 and the missing sharp wounds
The appellants asked for Exception 4 to Section 300, which reduces murder to culpable homicide for a sudden fight in the heat of passion, without undue advantage and without cruelty. The court said the post-mortem reports defeated that plea.
Every injury on the four dead was on the head, face, neck, shoulder or eye. The reports recorded fractures of the frontal, temporal, parietal and jaw bones, and in one body a crushed eye. Such continuous blows aimed only at heads, the bench held, meant the appellants took undue advantage and acted cruelly.
The post-mortem on Md. Shafeeq found the right eye crushed and fractures of the frontal, temporal, parietal and occipital bones. Md. Shakeel alias Jau had six injuries, all on the head and face, with a fractured lower jaw and a fractured skull.
It concluded that they shared a common object to kill the informant’s side and that the number and site of the injuries showed intention to kill. Private defence also failed, because the victims were unarmed and the appellants produced no injury report of their own.
The defence relied on Sunny alias Santosh Dharmu Bhosale v. State of Maharashtra and Jugat Ram v. State of Chhattisgarh, where the Supreme Court had altered a Section 302 conviction to Section 304. The bench distinguished both: one person had been hit with a lathi in each, whereas here four died and a fifth was gravely hurt.
On the missing incised wounds, it held that their absence did not wipe out the eyewitness account. For intention it relied on Virsa Singh v. State of Punjab, and for injured witnesses on Suresh Sitaram Surve v. State of Maharashtra.
One acquittal does not free the rest
The trial court had acquitted Iqbal Rain only because it doubted he was present. The High Court said that did not make the same two eyewitnesses unreliable against the others.
It cited two three-judge Bench rulings of the Supreme Court, Gurcharan Singh v. State of Punjab and Nisar Ali v. State of Uttar Pradesh. The maxim that a false witness is false in everything is a rule of caution, the court said, and not a mandatory rule of evidence.
Where a witness is reliable against some accused and not against others, the bench held, the reliable part can be accepted. Every member of an unlawful assembly is liable under Section 149 for the common object, even without an overt act, which is how Shakeela’s conviction was upheld.
The sentencing question
The court framed the sentencing point as whether the capital punishment awarded by the trial judge
“is based on evidence and in accordance with the settled principles enunciated by the Hon’ble Supreme Court from time to time, and whether this case falls within the category of the rarest of rare cases” (para 75)
It went through Jagmohan Singh, Bachan Singh, Machhi Singh, Swami Shraddananda and Santosh Kumar Satibhushan Bariyar, along with Chhannu Lal Verma, Mohd. Firoz and Byluru Thippaiah, which the appellants cited.
From these, the bench drew a settled rule. Death is awarded only in the rarest of rare cases, and
“life imprisonment is the rule and the death sentence is an exception” (para 78)
Before awarding death, it said, a court must weigh and draw up a balance sheet or chart of aggravating and mitigating circumstances.
Where the death sentence fell short
The Sessions Judge, the court found, prepared no such chart. He had referred to the injuries in the post-mortem reports and to the fact that four people were killed, and then called the case rarest of rare.
The bench noted that only four green bamboo sticks, about two hands long and lying in the graveyard, were used. The appellants had no firearm or sharp weapon such as a sword or axe.
It also found no evidence of any nature that the appellants were habitual or hard-core criminals or a menace to society at large. The prosecution produced no document on any criminal history.
On that footing the court held that the Sessions Judge had wrongly treated the case as rarest of rare. Life imprisonment would, it said, serve the ends of justice better than the extreme penalty.
Order
The reference for confirmation of the death sentences, Reference No. 15 of 2022, was rejected. The death sentences of Amzad, Ramzan and Arshad under Section 302 were commuted to imprisonment for life. All other findings and convictions of the trial court were affirmed.
Capital Cases No. 20 of 2022 was partly allowed. Criminal Appeal No. 8766 of 2022, by Shakeela, was dismissed, and her conviction and life sentence were upheld in full. The court ordered a copy of the judgment to go to the trial court with the record.