Range Gowda, J.-These twenty-three appellants and two others namely, Doreswamy and Ningegowda. Who were accused Nos. 1 to 25 and who will hereinafter be referred to as A-1 to A-25, were tried on various charges by the Sessions Judge, Mandya, in Sessions Case No. 5 of 1974. The charges common to all the 25 accused persons were under sections 148, 302 read with 149, 326 read with 149, and 324 read with 149, of the Indian Penal Code, and the allegation under those charges were that on 2oth August, 1973 between 6-30 and 7 a.m., on the foot-path leading from MandyaMadachakanahalli road towards the house of Nethegowda (P.W.44), in Gandhal village, Mandya Taluk, they formed themselves into an unlawful assembly armed with deadly weapons such as clubs, spears, axes, etc., with the common object of committing the murders of Kariyappa alias Karigowda, son of Chikkamarigowda and Chikkabomme gowda son of Hirichikki Basavegowda and causing grievous hurt to Manchegowda P.W.35, G.K. Nagaraj P.W.31 and Gooti Sannaiah P.W.40 and simple hurt to Kemparaju P.W.22 and Bommiah P.W.32, and committed rioting and the murders of the said Karigowda and Chikkabommegowda and caused grievous hurt to P.Ws. 35, 31 and 40 and simple hurt to P.Ws. 22 and 32 by assaulting them with clubs, spears and other dangerous weapons in prosecution of the said common object. A-1 G. S. Basavegowda, A-2 G.S. Channegowda, A-3 G.S. Puttaswamy, A-5 Patel Javaregowda and A 6 Siddappa were also tried in the alternative for committing the murder of Karigowda in furtherance of their common intention punishable under section 302 read with section 34 of the Indian Penal Code, and similarly, A-4 G.S.Basavaraj, A-5 Patel Javaregowda, A-9 Kullaiah, A-10 Jakka, A-12 Channappa, A-13 G.P Bommaish alias Meese Bommaiah, A-15 Ningegowda and A-17 Basappa were also tried in the alternative for committing the murder of Chikkabommegowda in furtherance of their common intention punishable under section 3O2 read with section 34 of the Indian Penal Code. 2. The learned Sessions Judge, by his judgment dated 28th Augst, 1974 found A-7 Doreswamy and A-15 Ningegowda not guilty of the offences with which they were charged and consequently acquitted them and directed them to be set at liberty forthwith, and we are informed that the State has not preferred any appeal against the said judgment of acquittal. 2. The learned Sessions Judge, by his judgment dated 28th Augst, 1974 found A-7 Doreswamy and A-15 Ningegowda not guilty of the offences with which they were charged and consequently acquitted them and directed them to be set at liberty forthwith, and we are informed that the State has not preferred any appeal against the said judgment of acquittal. The learned Sessions Judge found the Test of the accused persons guilty of the offence under section 148, Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for two years. He also found A-1, A-2, A-3 and A-5 guilty of the offence under section 302 read with section 34, Indian Penal Code for committing the murder of Karigowda and A-9, A-10, A-12 and A-13 guilty of the offence under section 3O2 read with section 31, Indian Penal Code for committing the murder of Chikkabommegowda and consequently convicted them all and sentenced A-1, A-2, A-3, A-5, A-9, A-10, and A-13 to death and A-12 to undergo imprisonment for life. He further found A-4, A-6, A-8, A-11, A 14, A.-16, A-17, A-18, A-19, A-20, A-21, A-22, A-23, A-24 and A-25 guilty of the offence under section 3O2 read with section 140, Indian Penal Code for committing the murders of Karigowda and Chikkabommegowda and convicted and sentenced each of them to undergo imprisonment for life. He also found A-2, A-6, A-22, A-23, A-20 and A-21 guilty of the offence under section 326 read with section 34, Indian Penal Code and convicted and sentenced each of them to undergo rigorous imprisonment for one year, and A-12, A-13 and A-19 guilty of the offence under section 324 read with section 34, Indian Penal Code and convicted and sentenced each of them to undergo rigorous imprisonment for six months. He also found A-1, A-3, A-4, A-5, A-8, A-9, A 10, A-11, A-14, A-16, A-17, A-18, A-24 and A-25 guilty of the offences under section 326 read with section 149 Indian Penal Code and section 324 read with section 149, Indian Penal Code for -causing grievous hurt to P.Ws. 35, 31 and "0 and simple hurt to P.Ws. 22 and 32, and convicted and sentenced each of them to undergo rigorous imprisonment for one year and six months respectively on each count, and directed all the sentences to run concurrently. 35, 31 and "0 and simple hurt to P.Ws. 22 and 32, and convicted and sentenced each of them to undergo rigorous imprisonment for one year and six months respectively on each count, and directed all the sentences to run concurrently. He found A-4, A 5, A-6 and A-17 who were alternatively charged tinder section 302 read with section 34, Indian Penal Code not guilty of the same and acquitted them of that charge, and we are told that the said finding is not challenged by the State. In this appeal, the appellants-accused have challenged the legality and the correctness of their convictions and sentences. Criminal Referred Case No.53 of 1974 is the reference made under section 37 of Criminal Procedure Code (old) by the learned Sessions Judge for confirmation of the death sentences passed on the aforementioned seven accused persons. 3. The Advocate-General and B.K. Ramachandra Rao appeared for the State; A.H. Bhagawan appeared for A-1; G.R. Ethirajulu Naidu appeared for A-4; and A.Shamanna appeared for the rest of the accused. 4. The prosecution case, briefly stated, is as follows: Since a long time there were two rival parties in Gandhal village, one headed by A I G.S. Basavegowda and the other headed by P.W.44 Nathegowda, and the enmity between them went on increasing day by day till the date of the occurrence. Number of criminal cases were filed against members of both the parties. Security proceedings under section 197, Criminal Procedure Code, were also instituted against both the groups. There were also some proceedings between them in the Revenue Courts in respect of some disputes. The deceased Chikkabommegowda owned a vacant land in Gandhal village adjacent to the society building and he got it alienated in his favour for the purpose of constructing a building. Then the directors of the society belonging to the party of A-1 passed a resolution for acquiring the said land for the use of the society and in the meantime Chikkabommegowda started constructing a building on the land. Thereupon, P.W.8 Rajagopal, the Secretary of the society, instituted proceedings in the Court of the Assistant Commissioner, Mandya, and secured an order of stay on 23rd August, 1973. Thereupon, P.W.8 Rajagopal, the Secretary of the society, instituted proceedings in the Court of the Assistant Commissioner, Mandya, and secured an order of stay on 23rd August, 1973. Similarly, some months prior to the occurrence, P.W.44 Nathegowda, started constructing a compound wall in front of his sugar cane crushing house at Gandhal, and proceedings were also instituted and on a petition given by A-3 to the Block Development Officer P.W.1, Gangappa, objecting to the same he (P.W.44) was directed not to proceed with the construction. Then P.W. 20, Biliyappa, the nephew of P.W. 44, sent an application as per Exhibit P-1 on 7th August, 1973 to the Assistant Commissioner, Mandya, alleging that A-3 and sixteen others were constructing pent houses in the portion of ‘Gramatana’ without obtaining licences and requesting him to take appropriate action against them. The Assistant Commissioner forwarded that application to P.W. 1 with a direction to look into the matter. Then on 20th August, 1973, P.W.20 sent another application (Exh. P-2) by registered post to P.W. 1 alleging that A-8 was proposing to construct a shed in the Gramatana and requesting him not to grant the licence. Then he sent another application as per Exh. P-3 to P.W. 1 by registered post which P.W. 1 received on 24th August, 1973, in which it was alleged that A-8 was unauthorisedly constructing a shed in the Gramatana. In the meantime, on 23rd August, 1973 itself P.W. 1 visited the spot along with the Panchayat Extension Officer of the Block (P.W. 7) and the concerned Junior Engineer, and issued a notice as per Exh. P-8 to A-8 directing him to demolish the shed unauthorisedly constructed by him. But, A-1 and his brothers and A-5 who were all along supporting A-8 in constructing the shed dissuaded him from demolishing it, and on account of all these disputes, the feelings between P.W. 44 Nathegowda and his followers on the one hand and A-1 and the other accused on the other were extremely strained. But, A-1 and his brothers and A-5 who were all along supporting A-8 in constructing the shed dissuaded him from demolishing it, and on account of all these disputes, the feelings between P.W. 44 Nathegowda and his followers on the one hand and A-1 and the other accused on the other were extremely strained. On the date of the occurrence, i.e., 26th August, 1973, the deceased Karigowda was proceeding from his house towards his sugarcane crushing house quite ahead of his brother P.W.44, Nathegowda who was following him, and A-1 to A-8 and some others who had assembled near the shed of A-8 armed with spears, axes and clubs suddenly rushed and surrounded Karigowda who was going near the manure pit and killed him by assaulting him with axes and spears. On seeing the accused assaulting Karigowda, the deceased Chikkabommegowda who was then in his sugarcane crushing house rushed in that direction with a club in his hand for rescuing him. Then A-9 to A-25 and one Mantradabommaiah rushed towards him from the eastern direction with spears, choppers and clubs and surrounded and killed Chikkabommegowda, and Mantradabommaiah too sustained an injury on his head as a result of a blow given by Chikkabommegowda then with the club he had, and later died. P.W.10 Manchegowda who had seen some of the accused persons being present there before the actual assault commenced on Karigowda and Chikkabommegowda, being afraid and apprehending that some calamity would take place, left for Mandya on a cycle to inform the Police, and on his way at Holalu he met Siddegowda P.W.9 and requested him to contact the Police of Mandya on phone and to inform them about the situation at Gandhal. Accordingly, P.W.9 Siddegowda, went to the society building there and on phone informed the Head Constable P.W.43 Kempaiah and the Sub-Inspector of Police P.W.36, Shantappa, at about 8-30 a.m. that there was rioting at Gandhal village. The Sub-Inspector P.W.36 entered the said information in the Station-House Diary, informed the Circle Inspector of Police P.W.45 Kemparaj Urs and the Deputy Superintendent of Police P.W.46 A.N Gopal about it, and left Mandya at about 8-45 a.m. with his staff to go to Gandhal village, and on his way at Holalu P.W.10 who was still there accompanied him to Gandhal, and at 9-15 a.m., Nathegowda P.W.44 lodged a complaint, Exh.P-39, before him. He (P.S.I.) then sent Exhibit. He (P.S.I.) then sent Exhibit. P-39 through the Police Constable P.W. 28 Rama. Swamy to the rural Police station at Mandya for being delivered to P.W.43 who was the station house Officer then, with directions to register the case and to submit the first information report to Court and express reports to his superiors, and arranged to keep watch over the dead bodies of Karigowda and Chikkabommegowda which were kept on the dial of P.W.44 Nathegowda’s house. On receipt of Exhibit P-39 at 10-30 a.m., P.W.43 registered a case in Crime No. 135 of 1973 under sections 143, 147, 148, 149, 324, 307 and 302 Indian Penal Code and submitted the first information report Exhibit P.52 to the Court and sent a copy of it to the Sub-Inspector of Police who was at Gandhal itself then. The Police Sub-Inspector P.W.36 having found P.W.22 Kemparaju P.W.31 G.K. Nagaraj, P.W.32 Bommaiah and one Thammanna injured, sent them to the General Hospital at Mandya for examination and treatment and at about 11 a.m., the Circle Inspector of Police having arrived there took up further investigation from him. The Circle Inspector of Police P.W.45 conducted the inquest proceedings over the dead body of Karigowda between 11-35a.m. and 2-15 p.m. (vide Inquest Panchanama Exhibit P-34, and the inquest proceedings over the dead body of Chikkabommegowda between 2-20 p.m. and 5-00 p.m. (vide Inquest Panchanama Exhibit P-35), and during the inquest proceedings he recorded the statements of P.W.44 Nathegowda and P.W.39 Manchamma wife of the deceased Chikkabommegowda. Then at 5-10 p.m. he visited the scene of occurrence along with P.W.44 and drew up a Mahazar and seized the blood-stained stones (M.Os.) 21 and 22, blood-stained hay (M.O.23), blood-stained stone with hair (M.O. 22) and bloodstained grass (M.O.25). He sent P.Ws. 35 and 40 who were injured to the hospital for treatment, and thereafter recorded the statements of P.W.21 Basavaraju, P.Ws. 41 Shivalingaiah and P.W.22 Jayamma. Having found A-6, A-9, A-12, A-17, A-24 and A 25 also injured, he sent them to the hospital for treatment on the same day, and searched for the other accused and found them absconding, Then on 27th August, 1973, he (P.W.45) visited the General Hospital at Mandya and attached the blood-stained clothes of P.Ws. 31, 32, 35, 40 and Thammanna under mahazars and then recorded their statements and the statement of P.W.22. 31, 32, 35, 40 and Thammanna under mahazars and then recorded their statements and the statement of P.W.22. On 28th August, 1973 at about 8-3O p.m. he arrested A-8, A-9 and A-12 and attached the blood-stained shirt and dhoti (M.Os. 13 and 19) which A-12 was wearing then and the blood-stained shirt (M.O. 20) which A-9 was wearing then under Exhibit P-58. On 9th September, 1973 he arrested A-I9 and A-20 and on the information furnished by A I9 he recovered a spear (M.O. 1) and a club (M.O. 2) and on the information furnished by A-20 he recovered a club M.O.3 and seized them under the mahazars Exhibit P-37 and P-38 respectively. On 11th September, 1973, the Deputy Superintendent of Police P.W.46 A.N. Gopal took up further investigation and on the following day he recorded the statements of P.Ws. 9, 10 and 12, and after completing the investigation on 22nd October, 1973, he filed a charge-sheet in the Court of the First Class Magistrate at Mandya against A-1 to A-3 and A-5 to A-25 showing A-4 as ‘not sent up for trial’, which was registered as Criminal Case No. 3056 of 1973. Then on an application filed by P.W.44 Nathegowda complaining against the non inclusion of A-4 in the charge-sheet, the learned Magistrate made an order on 19th November, 1973 in the same case directing issue of warrant for his arrest for being proceeded with along with the other accused persons. That order A-4 challenged before this Court in Criminal Revision Petition No. 635 of 1973, and the Criminal Revision Petition was dismissed on 27th November, 1973 at the stage of admission itself. Then the learned Magistrate having followed the procedure prescribed in Chapter XVIII of the Code of Criminal Procedure ! 898, committed all the accused persons for trial before the Court of Sessions at Mandya for offences under sections 148, 324, 326 and 302 read with 149 of the Indian Penal Code. However, the learned Session Judge framed charges as aforementioned against the accused, who claimed to be tried. 5. The plea of A-4 was one of alibi’ and in his statement under section 342’ Criminal Procedure Code. (The statement is In Kannda-omitted). * * * In support of the above, he examined three witnesses, viz., A.C. Madegowda (D.W. 1), Smt. Leelamma Shivannajappa (D.W. 2) and P.N. Javarappagowda (D.W. 3). 5. The plea of A-4 was one of alibi’ and in his statement under section 342’ Criminal Procedure Code. (The statement is In Kannda-omitted). * * * In support of the above, he examined three witnesses, viz., A.C. Madegowda (D.W. 1), Smt. Leelamma Shivannajappa (D.W. 2) and P.N. Javarappagowda (D.W. 3). Then A-6, A-9, A-12, A-13, A-17, A-24, and 25 while denying their complicity in the crime put forward their own version which we find in the complaint (Exhibit D-24) dated 26th August, 1973, said to have been given by A-24 to the Circle Inspector of Police P.W.45 at about 11-25 a.m. at Gandhal. (The complaint is in Kannada-omitted). * * * * The defence version was further amplified and we find it in the suggestions put to P.W.21 and the following answers elicited in his cross-examination: ‘It is false that on the date of the incident C.W. 1 Nathegowda (P.W.44), my father, myself and the other accused in S.C.N0. 2 of 1974 had formed ourselves into an unlawful assembly out of ill-will and that we were all armed with choppers, axes, clubs, etc., with the common object of committing the murder of Mantradabommaiah. It is not true that in furtherance of that common object A-1, A-2, A-3, A-4, in S.C. No. 2 of 1974 chased Mantradabommaiah and his brother Channappa (A-12 in S.C. No. 5 of 1974) being armed with axes, choppers and spears and at that time C.W. 1 Nathegowda and other-accused in S.C. No. 2 of 1974 including myself joined them from the other side and that C.W. 1 Nathegowda caused the death of Mantradabommaiah by striking on his forehead with an axe. It is false that at that time we assaulted and caused hurt to A-6, A-9, A-12, A-17, and 24. It is not true that when we were assaulting Mantradabommaiah, A-6, A-9, A-12, A-17 and A-24 raised an alarm and on hearing their cries Bommaiah, son of Kenchegowda, Siddarama, son of Lingegowda, Mahalinga son of Channegowda, Channegowda son of Yamme Lingegowda, Kariya son of Kudure Basava and Basavaraju, son of Marigowdana Dollegowdana Channegowda, Basavaraju son of Chikkanna (the seven persons referred to above) came there to the rescue of these persons. It is false that these seven persons assaulted the deceased Kariyappa and Chikkabommegowda to rescue the life of deceased Mantradabommaiah and A-6 A-9, A-12, A-1 7, and A-24. It is false that these seven persons assaulted the deceased Kariyappa and Chikkabommegowda to rescue the life of deceased Mantradabommaiah and A-6 A-9, A-12, A-1 7, and A-24. It is not true that the members of my group assaulted those seven person! Who came to the rescue and they in turn assaulted some of the members of our group……". The plea of the other accused was denial simpticiter. It can thus be seen that in respect of the same occurrence two conflicting versions were put forward, one by the prosecution and the other by the accused. 6. Here it may be mentioned that on the complaint (Exhibit D-24) lodged by A-24, a case was also registered in Crime No. 136 of 1973 and as many as 19 persons including P.Ws. 21, 22, 31, 35, 40 and 44 and the deceased Karigowda and Chikkabommegowda were charge sheeted on the allegations that they had formed themselves into an unlawful assembly with the common object of committing the murder of Mantradabommaiah and caused grievous and simple hurt to others. The learned Magistrate who held the preliminary proceedings ultimately committed all except the deceased to the Court of Sessions to take their trial for those offences, which was registered as S.C. No. 2 of 1974 and tried and disposed of along with S;C. No. 5 of 1974 by the same judge on one and the same day by separate judgments. There cannot be any doubt that in the alleged occurrence Karigowda, Chikkabommegowda and Mantradabommaiah sustained injuries and the last succumbed to the injuries a little later while he was being taken to the Hospital at Mandya and the former too succumbed to the injuries on the spot itself. The injuries found on the dead body of Karigowda at the time of post mortem examination conducted by Sri. Ramesha Rao (P.W.6) on 27th August, 1973 between 7 and 8-30 A.M. have been described thus: External injuries’. 1 A vertical incised wound 5“X 1½” X 1-8“size over the low back region and centrally situated. 2. A penetrating wound of 3” X 1½“X 3” in size directed obliquely downwards and medially on the right side of the neck and 4“above the medial side of the right clavicle. 3. A lacerated irregular wound of 1 X ½ x ½ of an inch size over the left temporal region and 4” above the left ear. 4. 2. A penetrating wound of 3” X 1½“X 3” in size directed obliquely downwards and medially on the right side of the neck and 4“above the medial side of the right clavicle. 3. A lacerated irregular wound of 1 X ½ x ½ of an inch size over the left temporal region and 4” above the left ear. 4. An incised wound 4 x 1½ X skull deep size on the left temper-occipital region and vertically situated. Internal injuries: 1. The first, 2nd and 3rd rings of the trachea were lacerated and cut open on the right side. The lumen of the trachea was full of blood clots. 2. Both the lungs were congested and blood oozed out on squeezing the cut surfaces. He P.W.(6) has stated in his evidence that the injuries were ante-mortem, external injuries 1, 2 and 4 might have been caused by sharp cutting instruments like spears and injury No. 3 by a club or by a fall and they were sufficient to cause death in the ordinary course of nature, and that death was due to asphyxia and haemorrhage as a result of injury to trachea. He has denied the suggestion in cross-examination that injuries 1 and 4 could not have been caused by a spear. Exhibit P-16 is the post-mortem certificate in which the description of the injuries as also his opinion as to the cause of death are mentioned. The evidence given by him in that regard is not shaken in his cross-examination. The post-mortem examination over the dead body of Chikkabommegowda was conducted by Dr. K.P. Puttaswamy (P.W.5) on 27th August, 1973 between 8-30 a.m. and 10 a.m. and he has described the injuries found on the dead body thus: External injuries: 1. Fracture of both the bones of the left leg at their upper third. 2. An incised wound measuring 5 can. And situated on the medial side of the right leg 7 cms. Below the right knee joint. 3. An incised wound 5 cms. In length and longitudinally situated 20 cms. Below the left knee. 4. A penetrating wound measuring 3.5 cms. X 4 cms. X 1 cm. over the right cheek. 5. A penetrating wound 1-5 cm. x 3 cm. x 24 cms. Over the right auxilliary regions 17 cms. Below the right axilla. 6. A penetrating wound of 4 x 1-5 X 16 cms. Below the left knee. 4. A penetrating wound measuring 3.5 cms. X 4 cms. X 1 cm. over the right cheek. 5. A penetrating wound 1-5 cm. x 3 cm. x 24 cms. Over the right auxilliary regions 17 cms. Below the right axilla. 6. A penetrating wound of 4 x 1-5 X 16 cms. Over the medial aspect of the right eye-brow. 7. A penetrating wound of 6 X 2 X 10 cms. Over the left eye-brow. 8. The left ear lobe was torn out. Internal injuries: 1. Fracture of the left frontal bone in the front. 2. Fracture of the orbital of the left frontal bone. 3. The membranes of the brain were ruptured at the penetrating wounds. 4. There was lacerated of both frontal and the cerebral hemispheres at the penetrating site. 5. The eighth rib on the left side was fractured. 6. The pleural membrane was pierced at the site of the wound. 7. The right lung was pierced at its middle point. 8. The pericardium was pierced to the size of the 3 cms. 9. A penetrating wound, of the size of 3 cms. At the middle of the right ventricle and transversely situated. 10. Fracture of the four figures at the proximal phalanx of 2 to 4 figures. 11. Fracture of the left frontal bone and the left orbital plate. He (P.W.5) stated in his evidence that the external injuries were ante-mortem, that injury No. 1 might have been caused by clubs like M.Os. 2 and 3, injuries 2 and 3 by sharp-cutting instruments, injuries 4 to 7 by spears and injury N0.8 while pulling the ear-ring with violence, that the injuries were about 24 to 36 hours old at the time of post-mortem examination and they were sufficient to cause death in the ordinary course of nature, and that death was due to injuries to vital organs such as heart, brain and legs. Exhibit P-13 is the Post-mortem certificate in which the injuries as also his opinion as to cause of death are mentioned, and the evidence given by him is not challenged in his cross-examination. 7. Then the external injuries found on the dead body of Mantradabommaiah, one of which with its corresponding internal injury is said to have resulted in his death, are described thus: 1. A depressed wound measuring 4 X 5 cms. On the central forehead fractured frontal bone. 7. Then the external injuries found on the dead body of Mantradabommaiah, one of which with its corresponding internal injury is said to have resulted in his death, are described thus: 1. A depressed wound measuring 4 X 5 cms. On the central forehead fractured frontal bone. 2. A lacerated wound measuring 1 cm. X ½ cm. over the bridge of the nose and the nose was deformed. Depressed fracture of the nasal bone was detected. And we shall refer to the injuries sustained by some of the accused and the prosecution witnesses later. 8. The prosecution case mainly rests on the evidence of P.W.10 Manchegowda, P.W.21 G,B. Basavaraju, P.W.22 Kemparaju, P.W.31 G.K. Nagaraj, P.W.32 Bommaiah, P.W.35 Manchegowda, P.W.40 Gooti Sannaiah, P.W.41 Shivalingaiah, P.W.42 Jayamma, and P.W.44 Nathegowda, and we shall refer to the material portions of their evidence, before proceeding to consider the contentions and the arguments advanced by the counsel appearing for the accused and for the State. * * * (The learned Judge then set out the evidence of P.Ws. Including the medical certificates relating to injuries sustained by some of the accused in Paras. 9 to 18 inclusive and proceeded) 19. It was contended by Sri Shamanna who appeared for most of the accused persons that the prosecution witnesses have given only a distorted version and not a true version of the occurrence and that is apparent from the injuries sustained by A-6, A-9, A-12,A-13, A-17, A-24, A 25, Mantradabommaiah, Bommaiah son of Kenohegowda, Siddarama son of Lingegowda, Mahalinga son of Channegowda, Channegowda son of Yemme Lingegowda, Kariya son of Kudre Basava, Basavaraju son of Marigowdana Dollegowdana Chennegowda and Basavaraju son of Chikkanna which they have not properly explained. Elaborating the contention what he submitted was that having regard to the injuries sustained by them in the course of the same occurrence there cannot be any doubt in the version of put forward by the defence and the version some of the prosecution witnesses that Mantradabommaiah attempted to thrust the spear into the body of Chikkabommegowda and it was at that time Chikkabommegowda dealt a blow on the head of Mantradabommaiah with a club to save himself which is to be found neither in Exhibit P-39 nor in the statements of the said witnesses made before the Investigating Officers is nothing but an afterthought, and that if that was how Mantradabommaiah sustained that injury there is no explanation why that fact was not disclosed till the evidence was given in Court. It was, therefore, urged that the failure to explain satisfactorily the injuries on the said accused, Mantradabommaiah and others mentioned above while supporting the defence version renders the evidence given by the said witnesses not worthy of belief. 20. It is no doubt true that in Mohan Rai v. State of Bihar1 relied upon by Shamanna, the Supreme Court, while considering the failure on the part of the prosecution to explain the injuries on the accused sustained in the same occurrence, said thus at page 1284: "The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohan Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohan Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highty probabilised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bhishun Prasad Sinha (P.W.18) clearly shows that these injuries could not have been self-inflicted and further according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants“ and in the other case also, viz., Sebastian David v. Sirkar Prosecutor1 relied upon by him, the prosecution evidence was rejected on the same ground. But, there is no warrant for the view that in every case the failure on the part of the prosecution to explain the injuries sustained by the accused should lead to the same conclusion or result. The Supreme Court on the facts of that case came to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the accused went to show that the prosecution witnesses were not telling the truth and the possibility of the accused acting in self-defence cannot be ruled out; but it does not follow from what is said in that case that in every case where the injuries on accused are not explained the prosecution evidence should be rejected. The question really is one of appraisal of total evidence and its effect, and it is now well settled that the entire prosecution case cannot be thrown out solely on the ground that the witnesses lor the prosecution have not explained the injuries on the accused though such failure is a relevant factor to be taken into consideration in judging their veracity. The effect of such non-explanation depends upon the circumstances of each case, and indeed in Onkarnath v. State of Uttar Pradesh2 while considering the effect of non-explanation of the injury on the accused, this is what the Supreme Court said at page 1557: ”34.-The question is, what is the effect of this non-explanation of the injuries of Parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused Bankey Lal v. State of U.P.3 and Bhagwan Tana Patil v. State of Maharashtra.4 35.-Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the Core and falsify the substratum of its story while in others it may have little or no adverse effect on the prosecution case. It may also, in a. given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received, injuries in the same transaction in which the complainant party was assaulted the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises." Therefore, the rejection of the evidence solely on the ground that the prosecution has not explained the injuries on the accused in this case, is neither prudent nor sound, and such rejection which may be characterised as mechanical, is not warranted. * * * The learned Judge discussed the evidence in Para. 21 to 23 and proceeded. 24. Number of authorities were cited before us by both sides to show how the evidence of partisan witnesses should be approached and what value should be attached to it in a case like this. * * * The learned Judge discussed the evidence in Para. 21 to 23 and proceeded. 24. Number of authorities were cited before us by both sides to show how the evidence of partisan witnesses should be approached and what value should be attached to it in a case like this. But, we do not feel inclined to refer to them all because the ultimate decision of this case like that of every other criminal case depends upon its own facts and the inrensic worth of the evidence adduced in it rather than what is said about the evidence of witnesses in other decided cases in the context of the facts of those cases, and in this connection the following observations of the Supreme Court in Charan Singh v. State of Punjab1 are apposite: "The question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a strait-jacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided cases can be of help if the question be about the applicability of some general rule of evidence, e.g., the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases hardly seems apposite when the question before the Court is whether the evidence of a particular witness should or should not be accepted." How the evidence tendered in a criminal’ case through witnesses who are out-and-out partisans should be approached is now well settled, and while dealing with the evidence of such witnesses in Masalt v. State of Uttar Pradesh2 Gajendragadkar, C.J., speaking for the Court said thus: "There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan. Would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." In Ranbir v. State of Punjab1, while further explaining as to how the evidence of partisan witnesses in a criminal case especially when it is found to be discrepant and exaggerated should be approached, this is what the Supreme Court said: “No doubt, in cases of party factions, there is generally speaking a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with the guilty ones, but normally where the general substratum of the occurrence cannot be held to arouse any reasonable doubt or suspicion about its having taken place, then the prosecution witnesses, provided they are held to have witnessed the occurrence and to be in a position to identify the assailants, are ordinarily not to be assumed to have left out the actual offenders or the guilty persons. Although the witnesses for the prosecution are in such circumstances prone to exaggerate the culpability of the actual assailants as also to extend the participation in the occurrence to some possible innocent members of the opposite party as well, the Court has to sift the evidence and after a close scrutiny with anxious care and caution to try to come to a judicial conclusion as to who out of the accused persons can be safely considered to have taken part in the assault. As pointed out in Deep Chand v. State of Haryana2 the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country and therefore it is the duty of the Court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the Court should uphold the prosecution case to the extent it is considered safe and trustworthy.” * * * * * 30. * * * * * It was pointed out by the learned Counsel for the accused that there are some discrepancies in the evidence given by P.W.s. 21, 41 and 44 regarding the number of blows dealt by A-1 and A-3 on. Karigowda and that those discrepancies are sufficient to generate suspicion in the truth of their version. It is no doubt true that P.W. 44 has stated that A-1 and A-3 both pierced the spear into the neck and back of Karigowda whereas what P.Ws. 21 and 41 have stated is that A-1 pierced the spear on. The back of Karigowda and A-3 pierced the spear on the neck of Karigowda. But, in our opinion, these discrepancies can hardly be regarded as sufficient to render their version suspicious or unworthy of acceptance. Such discrepancies occur even in the evidence of truthful witnesses and in this connection the following observation in S.T. Shinde v. State of Maharashtra3 are in point: “These discrepancies pertain to the precise number of blows given by the assailant, the standing or lying posture of the victim at the time of the assault etc. Such discrepancies in matter of detail always occur even in the evidence of truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorisation of details. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case.” It is true that in Exhibit P-39 particulars regarding the nature of weapon held and the injury or injuries caused by each of the above accused are not mentioned. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case.” It is true that in Exhibit P-39 particulars regarding the nature of weapon held and the injury or injuries caused by each of the above accused are not mentioned. It is also true that the Investigating Officer has stated in his evidence that those particulars were not mentioned to him either. But, on those grounds, the evidence given by the said witnesses in Court regarding the weapon carried and used and the injury or injuries; caused by each of the said accused, cannot be viewed with suspicion and rejected. It appears to us that P.W.4 must have got stunned because of the sudden occurrence in the course of which his own brother Karigowda and another a relation of his were killed and it might have taken some time for him to recover from that shock and to regain composure and naturally therefore be might not have mentioned all those details while giving the complaint. The omission to mention those details even before the Investigation Officer, even if true, cannot be regarded, in the circumstances of the case, as such a serious infirmity as to impair the credibility of the evidence given by them touching the complicity of the above accused. These are all matters of detail and the omission to mention them during the investigation in a case of this kind may at the most require their evidence to be scrutinised with greater care and circumspection. But, to hold that on that ground the substratum of the prosecution case is shaken and the evidence given by the said witnesses in Court is untrue, is to indulge in speculation. Having given our earnest consideration, it is not possible to think or hold that the evidence given by the said witnesses to the effect that A-1 to A-3 beat Karigowda with spears and A-5 beat him with a club and caused injuries which undoubtedly led to his death and to which we have already referred and that A-4 and A-6 too participated in the occurrence by being present on the spot along with them armed with weapons, is not true. Their evidence clearly shows that A-4 was present armed with a spear and he was instigating to kill Karigowda. Their evidence clearly shows that A-4 was present armed with a spear and he was instigating to kill Karigowda. True it is that the words uttered by him, according to each of the said witnesses, are slightly different. But those words convey the same meaning and substance, and therefore much cannot be made out of it, and in this connection the following observation in Sivaji v. State of Maharashtra1 are opposite: “When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.” It is common knowledge that sometimes even intelligent witnesses placed in similar circumstances will not be in a position to reproduce the very words uttered by a person. What we have to see is whether the evidence given by them substantially represents the truth. As mentioned earlier in Exhibit P-39 it is mentioned that A-4 was also present among the other accused and it has come in evidence that he was armed with a spear and was actively participating in the occurrence by instigating some of the other accused. * * * 36. Now the next question that arises for consideration is whether the sentence of death imposed on A-1, A-2, A-3, A-5, A-9, A-10 and A-13 is appropriate or deserved and while imposing the sentence of death on each of them this is what the learned Sessions Judge has said: ‘There was absolutely no provocation whatsoever during the incident. They have committed the murders only to wreak vengeance as Kariyappa was the brother of P.W.40 Nathegowda who is the ring-leader of one group and as Chikkabommegowda was his relation and as he intended to go to the rescue of Kariyappa (Karigowda). The weapons used and the injuries caused clearly go to show that the attack was dastardly and the murders are cold blooded. No leniency need be shown on the ground that the village is faction ridden and that there was enmity between the two rival groups. Therefore, this is undoubtedly a fit case for capital punishment. The weapons used and the injuries caused clearly go to show that the attack was dastardly and the murders are cold blooded. No leniency need be shown on the ground that the village is faction ridden and that there was enmity between the two rival groups. Therefore, this is undoubtedly a fit case for capital punishment. ‘ In dealing with this question which often comes up for consideration, it is relevant to note the change in the law on this subject has undergone from time to time. Before Criminal Amendment Act (XXVI of 1955), for the offence of murder, death sentence was the rule and transportation for life an exception and if the lesser penalty was to be awarded then sub-section (5) of section 367, Criminal Procedure Code, required reasons to be given. By Act XXVI of 1955, this subsection (5) was recast and the requirement of giving reasons for the lesser punishment was done away with thus giving the Court a discretion to award either of the two penalties prescribed under section 302 of Indian Penal Code. After the Code of Criminal Procedure, 1973, came into force, the position is the reverse of what it was before the Amendment of lg55, and it is now obligatory to give reasons if the death sentence is inflicted. Whether a case merits less severe of the two penalties prescribed for the murder; depends upon the circumstances of each case, and in deciding that question, as pointed out by the Supreme Court in Francis v. State of Kerala,1 the history of relations between the parties concerned, the background, the context or the factual setting of the crime, and the strength and the nature of motive operating in the mind of the offender are relevant considerations, and the state of feelings and mind produced by these, while insufficient to bring in an exception, may suffice to make the less severe sentence more appropriate. In that case, though it was found that the murder was pre-planned and deliberate, the Supreme Court commuted the sentence of death to one of imprisonment for life and in doing so, this is what it said. In that case, though it was found that the murder was pre-planned and deliberate, the Supreme Court commuted the sentence of death to one of imprisonment for life and in doing so, this is what it said. "In Ediga Anama v. State of Andhra Pradesh,2 this Court had dealt with a case of a premeditated and cleverly planned murder by a young man whose mind had become filled with frenzy and irrational jealousy because of rivalry between her and the murdered woman for the affections of an illicit lover or paramour. Her sentence for murder was reduced from death to life imprisonment. If that was done in that case, the motives of the appellant Francis before us who decided in his obviously alarmed and frenzied state of mind to do away with some one who appeared to him to be a standing menace to the lives and limbs of his near and dear ones could not be said to be more reprehensible. Nor could his inflamed feelings be less worthy of consideration in pronouncing upon the question of sentence. It is not enough, for deciding such a question to find that facts of the case indicated deliberation or premeditation before the offence although this is quite important. It is true that the attack upon the appellant’s brother-in-law had taken place on the previous night on 23rd December at about 10 p.m. whereas the murder was committed at about 3-30 p.m. on 24th December. Nevertheless, even the period of time which had elapsed between the two incidents was not so lengthy as to enable us to say that the effect of the provocation given by the previous night’s occurrence, in the background of another similar occurrence, and the feelings of fear or alarm it must have engendered, so as to disturb the mind of a person in the position of the appellant, must have evaporated before the murder was committed. These may have become even intensified by brooding over or talking and thinking about the incidents. No doubt the appellant was about 30 years in age but that is not a guarantee against the disturbance of mind which could be produced by the kind of attacks which had previously taken place on his elder brother and his brother in-law. These may have become even intensified by brooding over or talking and thinking about the incidents. No doubt the appellant was about 30 years in age but that is not a guarantee against the disturbance of mind which could be produced by the kind of attacks which had previously taken place on his elder brother and his brother in-law. Although the previous incidents could not constitute sufficient provocation to reduce the crime of murder to one of culpable homicide not amounting to murder, yet we think that the context of the crime justified the imposition of a lesser penalty than that given in this case." In dealing with a similar question in E. Mamma v State of Andhra Pradesh2 this is what the Supreme Court said: "Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive being under section 302, read with section 149 or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the Court may humanly opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life." Now, we have to see whether circumstances exist in this case to commute the sentence of death imposed upon each of the said accused to one of imprisonment for life. It is undisputed that A-1 and A-2 are fairly advanced in age. A-1 has given his age as 74 years and A-2 has given his age as 70 years when they were examined by the learned Sessions Judge under section 342, Criminal Procedure Code, on 15th July, 1974, and there appears to be no dispute regarding their age. It appears to us that the order passed by the Chief Executive Officer directing the demolition of the shed constructed by A-8 in the Gramathana with the support of A-1, and his brothers had not only upset A-1, but also A-2, to A-5. It appears they were labouring under the impression that the deceased and others belonging to their group were responsible for the same and were smarting under the supposed wrong done to them. Similarly, it appears to us that there were also other reasons for being provoked and upset and indeed this is what P.W.12 has stated: "A-7 said that the other party members had become more powerful and that they were suffering in their own way and that I would not understand it." Therefore, it appears to us that they were in a state of mental imbalance or were in the grip of emotional stress at the time the offences are said to have been committed by them. Further, the evidence shows that the assault on Chikkabommegowda by A-9, A-10 and A-13 was done on the instigation of A-4 without any pre-meditation. Even A-2, A-3 and A-5 appear to have acted on the instigation of A-4 and A-1. Further, the evidence shows that the assault on Chikkabommegowda by A-9, A-10 and A-13 was done on the instigation of A-4 without any pre-meditation. Even A-2, A-3 and A-5 appear to have acted on the instigation of A-4 and A-1. But the learned Sessions Judge has given him the benefit of life imprisonment though he (A-4) has played a more prominent part than others. Therefore, taking into consideration the state of their minds immediately before and at the time of the commission of offence, the old age of A-1 and A-2, the fact that A-2, A-3, A-5, A-9, A-10 and A-13 have acted under the instigation of others, the fact that A-4 who was similarly involved in the crime has received the lesser of the two sentences prescribed for murder, and the offence is only constructive being under section 302, read with 34 or section 302, read with 149 of Indian Penal Code, we feel that it is is sufficient to meet the ends of justice to commute the sentence of death imposed upon each of the said accused (A-1, A-2, A-3, A-5, A-9, A-10 and A-13) to one of imprisonment for life. Consequently, the reference made by the learned Sessions Judge for confirmation of death sentences has to be rejected. 37. In the result, for the reasons state above, we allow this appeal in part; we confirm the convictions of A-1 G.S. Basavegowda, A-2 G.S. Channegowda, A-3. Consequently, the reference made by the learned Sessions Judge for confirmation of death sentences has to be rejected. 37. In the result, for the reasons state above, we allow this appeal in part; we confirm the convictions of A-1 G.S. Basavegowda, A-2 G.S. Channegowda, A-3. G.S. Puttaswamy, A-5 Patel Javaregowda, A-9 Kullaiah, A-10 Jakka and A-13 G.B. Bommaiah alias Meese Bommaiah under section 3O2, read with section 34 of Indian Penal Code, but we set aside the sentence of death imposed on each of them and instead we sentence each of them to suffer imprisonment for life and we also confirm the convictions and sentences pasted on them under section 148 of Indian Penal Code; we confirm the convictions and sentences passed on A-4 and A-6, under sections 148 of Indian Penal Code and 302, read with 140 of Indian Penal Code and we direct the sentences passed on them (A-1 to A-6, A-9, A-10 and A-1 3) to run concurrently; we set aside the convictions and sentences passed on A-1 to A-6, A-9, A-10 and A-13, under sections 326, read with 34, 326, read with 149, 324, read with 34 and 324, read with 149 of Indian Penal Code; and we set aside the convictions and sentences passed on A-8, A-11, A-12, A-14, A-16 to A-25 and acquit them of all the charges and direct them to be set at liberty forthwith. Criminal Referred Case No. 53 of 1974 is rejected.