Judgment P.B. SAWANT, J.:---This is a little unusual case being an offshoot of the companion case. The present accused Nos. 1 and 2 are accused Nos. 8 and 7 respectively in the companion case. The theatre of the offences is the same village Ambe of District Solapur. The present offences are a sequel to and were committed within about three months of those which are a subject matter of the companion case and were the result of the enmity between the same two families of the said village. 2. One Ganpat Shinde of the said village had six sons, Bhagwan, Gajendra (murdered in the companion case), Mahada, Shiva (injured in the companion case), Bhiwa (murdered in the present case) and Balkrishan, (injured in the present case) and all of them were residing separately in their respective houses, in the same village. These brothers belonged to the Janata Party. One Baban Gaikwad, the deceased in the present case, was a leader of the Congress Party and the accused were his supporters. There was political rivalry between the two groups which was also responsible for criminal cases being filed by one of the said brothers Shiva against the deceased Baban and members of his group. The deceased Baban was the Village Sarpanch for about 10 years prior to the date of the incident. On 10-9-1979, on account of an attack made by the deceased Baban, the present accused and six others, the hands and legs of one of the said brothers Shiva were chopped off while another brother Gajendra was murdered. In that connection, the Pandharpur Taluka Police Station registered a crime against the said accused for offences under sections 120-B, 147, 148, 307 read with 149 and 302 read with section 149 of the Indian Penal Code. However, the present accused and the deceased Baban who were the principal culprits in that offence, were absconding. The villagers and particularly the witnesses in the said case were terrorised by the absconding accused and a near-panic situation prevailed in the village ever since the said incident. However, the present accused and the deceased Baban who were the principal culprits in that offence, were absconding. The villagers and particularly the witnesses in the said case were terrorised by the absconding accused and a near-panic situation prevailed in the village ever since the said incident. Hence, a police party headed by H.C. Bhanudas Godse (P.W. 11) and two Constables attached to the said Police Station as well as an Armed Police party consisting of one Head Constable and three Constables from Solapur Headquarters came to be posted in the village from the next day i.e. 11-9-1979, for giving protection to the witnesses and the family members of the victims. Despite a diligent search made by the Investigating Officer in the case, the absconding accused were not traced. Hence a proclamation for their appearance and attachment of their immovable properties was issued by the Judicial Magistrate, Pandharpur. Shiv, the injured brother in the case was discharged from Solapur Hospital on 21-11-1979 and continued to stay at Pandharpur for treatment till he was brought to the village on 11-12-1979 and kept in the house of his deceased brother Gajendra for considerations of security. This precaution to lodge Shiva in the said house was necessitated by the fact that the absconding accused were threatening the villagers that they would destroy the evidence by killing Shiva who was obviously a material witness in the said case. After Shiva was thus lodged in Gajendras house, the police party which was already in the village as well as the relatives of Shiva became more alert and in order to ensure proper security to Shiva, they kept a watch on the house, from the Mosque known as "Barabhai Masjid" which was almost opposite the house of Gajendra and was separated from it only by a distance of about 25 feet. Krishna Pawar (P.W. 23) is a social worker and hails from another village called Mrawade and is also the maternal nephew or Ganpat Shinde the father of the targeted brothers. He used to visit village Ambe and stay there often after the said incident of 10-9-1979. Since Shiva was brought to the village, Krishna Pawar was halting there. Krishna Pawar (P.W. 23) is a social worker and hails from another village called Mrawade and is also the maternal nephew or Ganpat Shinde the father of the targeted brothers. He used to visit village Ambe and stay there often after the said incident of 10-9-1979. Since Shiva was brought to the village, Krishna Pawar was halting there. On 12-12-1979, Krishna Pawar not the Additional Superintendent of Police, Solapur and apprised him of the danger to Shivas life as well as to the entire progeny of Ganpat Shinde, on account of the constant threats received from the accused, and requested him to secure the arrest of the absconding accused. He was one of the persons who used to sit in the said mosque along with others viz., Head Constable Godse (P.W. 110, Dariba (P.W. 13) i.e. a son of the deceased Gajendra, Shatrughna (P.W. 14), Ganpat (P.W. 18), Balkrishan (P.W. 20), Mahadeo Sagar and the deceased Bhiva to keep a security watch on the house of the deceased Gajendra where Shiva was lodged. 3. At about 1.30 p.m. on 13-12-1979, the aforesaid persons were sitting as usual chitchatting with each other. An armed Constable Hole was in the Grampanchayat office. One of the members of the police party had gone out of the village without permission and the other Constables had gone on sick leave. Balkrishna fell asleep and was lying on the ground. All of a sudden, the deceased Baban and both the present accused appeared on the scene. Baban and accused No. 1 Manohar being armed with swords and accused No. 2 Atmaram with an axe. No sooner they arrived, Baban gave a blow of his sword on the legs of Balkrishan who was sleeping. The others sitting there were bewildered by this sudden attack and got up. Shatrughna (P.W. 14) and Dariba (P.W. 13) got frightened and ran towards the house of Gajendra. Mahadeo Sagar also ran away. Thereafter, Baban gave a blow by the sword to Krishna Pawar (P.W. 23) who swiftly moved behind and avoided the blow. Baban again tried to hit Krishan Pawar caught hold of his hand and grappled with him from behind. Head Constable Godse (P.W. 11) jumped and caught hold of accused No. 2 Atmaram and tried to remove the axe from his hand. Baban again tried to hit Krishan Pawar caught hold of his hand and grappled with him from behind. Head Constable Godse (P.W. 11) jumped and caught hold of accused No. 2 Atmaram and tried to remove the axe from his hand. There was a scuffle between the two and ultimately Godse succeeded in snatching away the axe from the hands of accused No. 2. In the process, he received an injury on his right hand. As soon as he was disarmed, accused No. 2 Atmaram ran away from the spot. Accused No. 1 Manohar then gave blows by his sword on the right thigh and forehead of Balkrishan who was already injured on his leg by Baban. While Baban was still in the grip of Krishna Pawar, Baban shouted to accused No. 1 Manohar, to come to his help and release him. Accused No. 1 rushed and hit his sword on the hands of Krishna Pawar and chopped off his right palm from the wrist. Accused No. 1 then gave a second below on the right leg of Krishna Pawar. However, the pointed sword touched the floor and the below lost its force causing only a light injury to the right leg of Krishna Pawar. When the grip of Krishna Pawar, on account of the injuries received by him, became loose, Badan released himself, and Krishna Pawar ran towards the Gram Panchayat office to summon the Police Constable stationed there. Baban, on becoming free, rushed with the raised sword in his hand, towards Bhiwa. Head Constable Godse managed to catch hold of Baban and there ensured a scuffle between the two. During the course of the scuffle, Bhiwa managed to snatch away the sword from the hands of Baban while Head Constable Godse held Baban. Baban then gave a forceful jerk to Godse as a result of which Godse tumbled away, dashed against an electric pole, felt down and reeled under the impact. Baban who thus became free moved toward Bhiwa but the latter who had now Babans sword in his hand, gave him blows on his legs by the sword as a result of which Baban fell down. Bhiwa however continued his assault and gave two to three further blows to him. Godse who had in the meanwhile recovered from the momentary giddiness, told Bhiwa not to assault Baban any more. Bhiwa however continued his assault and gave two to three further blows to him. Godse who had in the meanwhile recovered from the momentary giddiness, told Bhiwa not to assault Baban any more. While the attention of Bhiwa was thus attracted to wards Godse, accused No. 1 came from behind and gave a blow by the sword on the head of Bhiwa. Bhiwa fell down. Accused No. 1 however persisted in inflicting blows and gave two to three more blows and then ran away towards the side of Maruti Temple, carrying the sword with him. This incident was witnesses by Dariba (P.W. 13) and Shatrughna (P.W. 14) from the house of Gajendra and by Ganpat (P.W. 18) who was nearby 4. As soon as accused No. 1 quit the scence, the witnesses assembled on the spot and found Baban dead and Bhiwa breathing his last. After a few minutes, Bhiwa also succumbed to the injuries. They also found Balkrishna and Head Constable Godse lying in an injured condition. Anna Shinde (P.W. 9) and one Vilas Shinde had also arrived on the scence. Godse told them about the incident, expressed his inability to go to the Police Station and requested them to go to Pandharpur Taluka Police Station to lodge a complaint. Accordingly these two persons went to Pandharpur, and there Anna Shinde lodged the complaint (Ex. 31) at 4 P.M. on the basis of which P.S.I. Thite (P.W. 21) registered an offence against the accused. Balkrishna and Krishna Pawar the two injured witnesses, were sent in a truck to the Municipal Dispensary, Pandharpur. Head Constable Godse then kept the armed Constable Hole and another Constable Abdul Farid to guard the scene of offence and after some time he also went to Pandharpur in a State Transport Bus and got himself admitted there for treatment. P.S.I. Thite arrived in the village at about 7 P.M. and commenced his investigation. On the next morning, he drew up the inquest panchanamas of the two dead bodies, (Ex. 27 in respect of Bhiwa and Ex. 28 in respect of Baban). P.S.I. Kurhade (P.W. 26) then took over the investigation from P.S.I. Thite. He drew up the panchanama of the scence of offence (Ex. 29) and seized various articles including the sword and the axe lying at the scene of offence. 27 in respect of Bhiwa and Ex. 28 in respect of Baban). P.S.I. Kurhade (P.W. 26) then took over the investigation from P.S.I. Thite. He drew up the panchanama of the scence of offence (Ex. 29) and seized various articles including the sword and the axe lying at the scene of offence. On the next day, i.e. on 14-12-1979, Sonabai, the mother of the deceased Baban lodged a complaint with P.S.I. Kurhade in respect of the murder of her son, against Mahada, Dariba, Ganpat, Vilas Shinde and Anna Shinde. On the basis of the said complaint, P.S.I. Kurhade registered a crime against the said five persons for the offence under section 302 of the Indian Penal Code, and took up the investigation of that case also. However, after making due inquiry, he found that the said complaint was without substance and hence the said persons, who were earlier arrested, were released under section 169 of the Criminal Procedure Code by the Judicial Magistrate, Pandharpur. 5. The dead bodies of Bhiwa and Baban were examined by Dr. Khiste (P.W. 17) attached to the Pandharpur Municipal Hospital, and he prepared his post-mortem notes in that respect. The post-mortem report of the dead body of Bhiwa is Ex. 48 on record while that of the dead body of Baban is Ex. 49 on record. Dr. Hingamire of the Pandharpur Municipal Dispensary examined the injuries on witnesses Krishna Pawar, Balkrishna and Head Constable Godse and issued his certificates which are Exs. 37, 38 and 39 respectively. Krishna Pawar and Balkrishna were also further examined by Dr. Karande (P.W. 19) of the Solapur Civil Hospital. 6. On 19-12-1979, P.S.I. Kurhade succeeded in arresting the abcending accused at another village Kasegaon, They were arrested with blood stained clothes. On 20-12-1979, accused No. 1 made a statement (Ex. 33) which led to the discovery of the sword (Article 35) from one field on Ranjani Chale Road and Panchanama (Ex. 34) to that effect was drawn up. In the meantime, P.S.I. Kurhade had requested the Sadar Bazar Police Station, Solapur, to record the dying declarations of injured Balkrishna (P.W. 20) and Pawar (P.W. 23), and accordingly the same were recorded by the Special Executive Magistrate, Ekbote (P.W. 24). The accused were got medically examined and their blood samples were collected. After the receipt of the Chemical Analysars reports (Exs. The accused were got medically examined and their blood samples were collected. After the receipt of the Chemical Analysars reports (Exs. 72 and 73), the accused were charge-sheeted before the Judicial Magistrate, Pandharpur, who committed them for trial to the Court of Sessions at Solapur, for the charges under section 302 read with 34, 307 read with 34 and 326 read with 34 of the Indian Penal Code. The charged under section 302 read with section 34 of the Indian Penal Code was for the offence of committing the murder of Bhiwa. The charge under section 307 read with section 34 of the Indian Penal Code was for attempting to commit the murder of Balkrishna. The charge under section 326 read with section 34 of the Indian Penal Code was for voluntarily causing grievous hurt by means of dangerous weapons to witness Krishna Pawar. 7. At the trial, both the accused pleaded not guilty. According to them, deceased Baban was the arch-enemy of witnesses Balkrishna, deceased Bhiwa and their brothers, They themselves had no role to play except that of supporting the deceased Baban in the Grampanchayat Elections. According to them, on the day in question, the deceased Baban had come to the Mosque to surrender himself before Head Constable Godse. At that time, the deceased Bhiwa, witnesses Balkrishna, Krishna Pawar, Dariba, Shatrughna, Ganpat and others were armed with swords, axes and sticks and waiting there with the intention of Killing Baban in case he came to surrender. According to them, when Baban went to surrender, the aforesaid persons attacked him, and then Baban killed Bhiva and caused injuries to Balkrishna and Krishna Pawar, and in that incident, Baban was also murdered by the said persons. They also submitted that they were not absconding from 10-9-1979 and that they voluntarily surrendered before the police on 19-12-1979. According to them, they were falsely implicated not only in this case but also in the companion case, because they were Babans supporters. 8. In support of their case, the prosecution examined, among others, the following witnesses : Head Constable Bhanudas Godse (P.W. 11), Dariba Shinde (P.W. 13), Shatrughna Shinde (P.W. 14), Ganpat (P.W. 18), Balkrishna (P.W. 20), Krishna Pawar (P.W. 23) and Muktabai (P.W. 22). Out of the said witnesses, Head Constable Godse, Balkrishna and Krishna Pawar were admittedly injured in the incident and their presence was not and could not be disputed. Out of the said witnesses, Head Constable Godse, Balkrishna and Krishna Pawar were admittedly injured in the incident and their presence was not and could not be disputed. Witnesses Dariba, Shatrughna and Ganpat, even according to the defence taken by the accused, were present on the spot when the incident commenced. All these witnesses deposed to all the relevant material details of the incident. Witness Muktabai was examined by the prosecution to show that she had seen the deceased Baban and accused Nos. 1 and 2, the first two with swords and the latter with an exe, in the village just prior to the incident. The prosecution also examined Anna Shinde (P.W. 9) Who had lodged the complaint being the First Information Report (P.W. 31) at the Pandharpur Police Station at the instance of Head Constable Godse. The prosecution further relied upon the medical evidence of (i) Dr. Hingamire (P.W. 12) of Pandharpur Municipal Dispensary who had examined the injuries on the persons of witnesses Krishna Pawar, Balkrishna and Head Constable Godse; (ii) Dr. Karande (P.W. 19) of Solapur Civil Hospital, who had also examined witnesses Krishna Pawar and Balkrishna and (iii) Dr. Khiste (P.W. 17) of Pandharpur Municipal Hospital, who had performed the post-mortem examination of the deceased Bhiwa and of the deceased Baban. Among the police witnesses examined by the prosecution, were P.S.I. Thite (P.W. 21) who had recorded the First Information Report and who had also drawn up the inquest Panchanamas and P.S.I. Kurhade (P.W. 26) who had carried out major portion of the investigation, drawn up the scene of offence Panchanama recorded the statements of various witnesses and arrested the accused. Banrang Pujari (P.W. 8) was a panch witness for the inquest Panchanamas (Exs. 27 and 28 and the scene of offence Panchanama (P.W. 29). Panch Kadam (P.W. 10) was a witness to the memorandum of the statement (Ex. 33) made by accused No. 1 which led to the discovery of the sword (Article 35) and in respect of which Panchanama (Ex. 34) was made. The Special Executive Magistrate Ekbote (P.W. 24) was examined to prove the dying declarations of witnesses Krishna Pawar and Balkrishna (Exs. 66-A and 68 respectively). 9. 33) made by accused No. 1 which led to the discovery of the sword (Article 35) and in respect of which Panchanama (Ex. 34) was made. The Special Executive Magistrate Ekbote (P.W. 24) was examined to prove the dying declarations of witnesses Krishna Pawar and Balkrishna (Exs. 66-A and 68 respectively). 9. After appreciating the prosecution evidence on record and taking into consideration the defence of the accused, the learned trial Judge came to the conclusion that the prosecution had established beyond reasonable doubt the guilt of the accused in respect of all the said three offences and convicted them of the said offences. For the offence under section 302 read with 34 of the Indian Penal Code he sentenced them to death subject to confirmation by this Court. They were sentenced to imprisonment for life for the offence under section 307 read with 34 of the Indian Penal Code and to rigorous imprisonment for five years for the offence under section 326 read with 34 of the Indian Penal Code. The sentences were directed to run concurrently. It is aggrieved by this order of their conviction and sentence that the accused have preferred Criminal Appeal No. 708 of 1980 which is being heard along with Confirmation Case No. 3 of 1980. 10. Shri Mistry, the learned Counsel appearing for the accused took us through the entire evidence on record. In fairness to the learned Counsel, it must be stated that he did not seriously challenge either the incident or the manner in which it occured as narrated by the eye-witnesses. He also did not challenge the convictions of the accused. However he vehemently disputed the sentence of death imposed by the learned Judge. According to him, the circumstances and the manner in which the assault on Bhiwa had taken place did not warrant the ultimate penalty. He submitted that in awarding the maximum sentence the learned Judge was carried away by the facts of the earlier case as well as extraneous considerations such as the necessity to maintain the purity of political life. The learned Judge, according to him had failed to take into account the requisite features of the attacks and counter attacks that ensured in the incident which alone ought to have guided his discretion to award the sentence. The learned Judge, according to him had failed to take into account the requisite features of the attacks and counter attacks that ensured in the incident which alone ought to have guided his discretion to award the sentence. It is for this reason that the learned Counsel focussed our attention on the details of the incident as they had come on record and tried to show that the ultimate murder of Bhiwa for which the maximum punishment was awarded was not a brutal act as is pointed in the judgment of the trial Judge but was the result of retaliatory action motivated by the attacks by Bhiwa and Baban who ultimately met with death in the incident although in the process accused No. 1 Manohar had exceeded the right of private defence. We must state that on account of the line of argument adopted by the learned Counsel our task has become easier since it is not necessary to discuss threadbare the entire evidence on record. Nevertheless, we consider it necessary to discuss briefly the salient features of the evidence on record. 11. While narrating the facts in paragraph 3 above, we have given the particulars of the incident as it occurred and the manner and the sequence in which it took place. It is not disputed that is the faithful version of the incident as it occurred from the beginning till the end on the fateful day. Out of the eye-witnesses examined by the prosecution, witnesses Bhanudas Godse, Dariba and Shatrughna have given an unshaken and consistent testimony to every detail of the said version. Hence the learned Counsel for the accused rightly did not challenge the same except for pointing out that both Dariba and Shatrughna were not present during the incident but had run away from the spot and were alleged to have seen the incident from the house of Gajendra. It was also pointed out by the learned Counsel that both Dariba and Shatrughna were interested witnesses inasmuch as Dariba was the nephew of the deceased Bhiwa whereas Shatrughna belonged to the party of Bhiwa. Before we deal with that aspect of the testimony of these witnesses, it will be convenient to point out that in any case, Bhanudas Godse, the Head Constable does not suffer from any such disadvantages. Before we deal with that aspect of the testimony of these witnesses, it will be convenient to point out that in any case, Bhanudas Godse, the Head Constable does not suffer from any such disadvantages. Admittedly, Godse was a member of the police party which was posted in the village to give protection to Shinde brothers and the prosecution witnesses in the companion case, right from 10-9-1979. He is the most independent and disinterested witness, and is also injured in the incident in question, in trying to disarm accused No. 2 by snatching his axe and while grappling with Baban to prevent him from attacking others. He was present from the very beginning of the incident and has described the incident in all its details and sequences. Except for the momentary dizziness which he felt because of his dash against the electric pole, he was very much alert to all that happened around him during the incident. The prosecution version of the incident given in paragraph 3 above has been supported by this witness in all its particulars. It must further be remembered that this witness has corroborated the fact that the other eye-witnesses viz. Ganpat, Balkrishna, Dariba, Krishna Pawar and Shatrughana were sitting in the mosque when the incident commenced. He has also stated that after accused No. 1 Manohar ran away, other persons including eye-witness Shatrughna came near him when he was lying in an injured condition. Therefore, through the testimony of this witness not only the details of the incident have been proved but the presence of the other eye-witnesses have also been established. Hence although as soon as the incident commenced, Dariba and Shatrughna ran away to Gajendras house, which was as stated earlier, at a distance of only 25 feet from and opposite the mosque, there is no reason to disbelieve the said two witnesses when they say that they had seen the incident as it occurred. In the first instance, Gajendras house to which the two witnesses resorted, was only across the place of the incident, and in fact the spot of the main incident was the open space between the Masjid and the said house. Secondly, both Dariba and Shatrughna ran away after Baban had given a blow by the sword to Balkrishna who was sleeping. Therefore, they had witnessed the assault on Balkrishna while they were very much amidst the incident. Secondly, both Dariba and Shatrughna ran away after Baban had given a blow by the sword to Balkrishna who was sleeping. Therefore, they had witnessed the assault on Balkrishna while they were very much amidst the incident. Thirdly, according to Dariba, after going to the house, remained in the door of the house, and it is not disputed that he could see all the details of the incident from the said door. So also Shatrughna, when he ran to the house, took resort to its staircase and it is from the staircase that he witnessed the entire incident. It is also not disputed that he could do so from the said staircase. Lastly, the account of the incident given by these two witnesses is graphic and unshaken and corroborates the account given by Head Constable Godse in all particulars. It is not, therefore, possible to believe that these witnesses had not seen the incident or that they were giving an account of the incident merely because they were interested witnesses. We are, therefore, more than satisfied that the testimony of these three witnesses is truthful and reliable with regard to all particulars. So also the testimony of Balkrishna (P.W. 20) and Krishna Pawar (P.W. 23). Both these witnesses are injured and there is no inconsistency or discrepancy whatsoever between their statements before the police and their depositions in the Court, although it is true that the police recorded their statements on 23-12-1979 when they recovered from their injuries and were in a position to give their statements. However, their evidence was attacked on the ground that compared to their deposition in the Court, their dying declarations were very much at variance. There is no doubt that the record of the version of the incident as found in their dying declarations is at a considerable variance to what they and the other eye-witnesses have testified in the Court. Balkrishan in his dying declaration (Ex. 68) has stated that not only accused Nos. 1 and 2 and the deceased Baban came with weapons, but Keshav and Trimbak who are the father and brother respectively of accused No. 2 as well as one Pandit Kashinath, the brother of accused No. 1 also came on the scene with arms in their hands. 68) has stated that not only accused Nos. 1 and 2 and the deceased Baban came with weapons, but Keshav and Trimbak who are the father and brother respectively of accused No. 2 as well as one Pandit Kashinath, the brother of accused No. 1 also came on the scene with arms in their hands. He had also stated there that all of them started beating him, and it was Keshav, the father of Atmaram accused No. 2 who gave a blow on his right leg. He has further stated there, that accused Nos. 1 and 2 had swords and it was the deceased Baban who had an axe whereas all other evidence on record shows that accused No. 2 Atmaram had an axe and accused No. 1 and Baban had swords. What is more, in the dying declarations, it is also stated by him that deceased Baban got a blow from Atmaram and Manohar, and Bhiwa also got a blow of the above two persons and Keshav through mistake. So also Krishna Pawar in his dying declaration (Ex. 66-A) has stated that Balkrishna seeing the two accused and the deceased Baban started running in open land and then Baban gave a blow on his left leg. He has also stated that Atmaram had a sword in his hand and it was Manohar who had an axe and it was Atmaram who gave a blow of sword on his right hand and others came running and beat him. He has further stated that when he became injured, Baban escaped from his hands and proceeded to the electric pole and stood there. He has also stated that as Baban got blows, he could not run and then he proceeded further and caught hold of Baban again and he snatched the sword which was in Babans hand and then taking the sword which he snatched from the hands of Atmaram he went to the Gram Panchayat Office and gave information to Godse Hawaldar. These versions given by these witnesses in their dying declarations are certainly at conspicuous divergence with the eye-witness account given by Godse, Dariba and Shatrughna as well as the account of these two witnesses in the Court which is stated in paragraph 3 above. These versions given by these witnesses in their dying declarations are certainly at conspicuous divergence with the eye-witness account given by Godse, Dariba and Shatrughna as well as the account of these two witnesses in the Court which is stated in paragraph 3 above. However, it must not be forgotten that the dying declarations of these two witnesses were recorded by the Special Executive Magistrate, Ekbote (P.W. 24) between 23-45 hours of 13-12-1979 and 00-30 hours of 14-12-1979. Looking to the injuries on their person it is doubtful whether they were at all in as mental and physical condition to give a sensible account of the incident. The medical evidence on record as per the medical certificate (Ex. 38) issued by Dr. Hingamire, of the Municipal Dispensary, Pandharpur, shows that Balkrishna had as many as nine injuries and they were as follows : " 1. 10 x 2 cms. bone deep oblique incised wound on left frontal emminence. 2. 14 x 5 cms. oblique incise wound on left leg 10 cms. above ankle anteriorly cutting both bones of leg and leaving little muscles and skin intact on posterior side. Cutting all blood-vessels and nerves of leg. 3. 6 x 2 cms. muscle deep oblique incised wound on right thigh immediately above knee anteriorly. 4. 7 cms. oblique superficial skin deep incised wound on right thigh 5 cms. above injury No. 3. 5. 7 x 0.5 cms, oblique muscle deep incised wound of right leg on tibia deeper below and tapering and shallow above. Wound starts little medial to tibia. 6. 7 x 0.5 cms. verticle muscle deep incised wound on medial aspect of left knee. Deeper below tapering and shallow above. 7. 7 x 0.5 cms. shaped superficial skin deep incised wound on left thing 8 cms. above patella. 8. 5 x 0.5 cms. shaped superficial skin deep incised wound on left thigh 1 cm. below injury No. 7. 9. 6 x 6 cms. abrasion on dorsal aspect of right forearm 3 cms. below olecrenon." So also, Krishna Pawar, as per the certificate (Ex. 37) issued by the same Medical Officer, had give injuries and they were as follows : "1. Complete cut of right forearm at wrist cutting all bones, vessels, nerves, muscles skin leaving only a tag of skin. Ends cannot to differentiated. 2. 4 x 1.5 cms. below olecrenon." So also, Krishna Pawar, as per the certificate (Ex. 37) issued by the same Medical Officer, had give injuries and they were as follows : "1. Complete cut of right forearm at wrist cutting all bones, vessels, nerves, muscles skin leaving only a tag of skin. Ends cannot to differentiated. 2. 4 x 1.5 cms. bone deep oblique incised wound on dorsum of left hand in between heads of 3rd and 4th metacarpal. Cut bone seen in wound. Cut of 4th metacarpal head. Ends cannot be differentiated. 3. 4 x 2 cms oblique bone deep incised wound on left middle finger on dorsal aspect on middle phalynx, complete bone cut and leaving only a little skin intact. Blood vessels, nerves muscles cut. Ends cannot be differentiated. 4. 5 x 2cms. skin deep incised wound on anterior aspect of right leg at mid region little lateral to tibia. Ends cannot be differentiated. 5. 10 x10 cms. abrasion on right temporal region 2 cm. posterior to frontal emminence." 12. Dr. Hingamire has further stated that in view of the critical condition of these witnesses they were transferred from his dispensary to the Solapur Civil Hospital where the declarations were recorded. In view of this evidence on record it is not possible for us to accept that these witnesses were in a fit physical and mental condition to narrate the incident in question at that hour. This is so inspite of the fact that Ekbote (P.W. 24 the Special Executive Magistrate, has stated in his deposition that on his inquiry with the Medical Officer at Solapur he was informed that they were conscious and in a position to give statements. We have no doubt whatsoever in our mind that the said dying declarations were obviously the result of feverish brains and mental aberrations through which the witnesses must have been going at the relevant time . We are strengthened in this impression firstly because the version given by them in the Court is corroborated in all material particulars by the other eye-witnesses Godse, Dariba and Shatrughna. Secondly, there is no discrepancy or inconsistency shown between their police statements and their deposition in the Court in any particular whatsoever, Thirdly, the medical evidence also supports their version given in Court . In fact, the distortions which have crept in their dying declarations are not supported by any evidence on record. Secondly, there is no discrepancy or inconsistency shown between their police statements and their deposition in the Court in any particular whatsoever, Thirdly, the medical evidence also supports their version given in Court . In fact, the distortions which have crept in their dying declarations are not supported by any evidence on record. Moreover, the versions recorded in the two dying declarations differ with each other on vital points. Apart from the fact that these statements cannot be treated as dying declarations there is no contemporaneous record that they were read over to these witnesses and that they had accepted them as true. The witnesses have of course denied that they had given any such version to the Executive Magistrate. Considering all the circumstances, we are satisfied that these dying declarations will have to be discarded and that they should in no way come in the way of accepting the testimony in Court of these two witnesses as well as the other witnesses with regard to the incident. 13. As regards the other eye-witness Ganpat (P.W. 18) his presence has been deposed to by Head Constable Godse himself. However, it does appear from the inconsistencies pointed out between his police statement and his deposition in the Court that soon after the commencement of the incident, this witness had run away from the scene and had not noticed the progress of the incident. We have, therefore, no hesitation in discarding his testimony as an eye-witness account of the incident. However, his evidence reinforces our impression that the investigating agency had done its work objectively and impartially. The statements of the eye-witnesses recorded by them do not appear to be stereotyped or tailored. Were it not so, then we would not have found the discrepancies in the version given by Ganpat. In the statement before the police and the version given by him in the Court particularly when his statement was recorded on the same day as that of the other eye-witnesses Godse, Dariba and Shatrughna. 14. So far as the other eye-witness Muktabai (P.W. 22) is concerned, the only thing that has been established by the prosecution through this witness is that she had seen Baban and the two accused at the relevant time proceeding towards the Mosque with weapons assigned to them by the other eye-witnesses. 14. So far as the other eye-witness Muktabai (P.W. 22) is concerned, the only thing that has been established by the prosecution through this witness is that she had seen Baban and the two accused at the relevant time proceeding towards the Mosque with weapons assigned to them by the other eye-witnesses. As stated earlier, the learned Counsel for the accused has not seriously challenged the prosecution version with regard to the occurrence of incident and therefore it is not necessary to discuss further the eye-witness account of the incident for testing its veracity. The only infirmities which were pointed out by the learned Counsel in the deposition of Ganpat, Balkrishna and Krishna Pawar have been dealt with by us and we have pointed out as to how inspite of the so-called discrepancies between their dying declarations and testimony, the evidence of Balkrishna and Krishan Pawar deserves to be accepted. We have also given our reasons as to why the testimony of Ganpat does not inspire confidence. Yet, the rejection of his testimony does not do any damage to the prosecution case. 15. It is however also necessary to examine the medical evidence on record, before we address ourselves to the question of sentence which is the only point seriously stressed before us by the learned Counsel for the accused. As regards the injuries on the person of Krishna Pawar, Balkrishna and Godse, we have the testimony of Dr. Hingamire (P.W. 12) of the Pandharpur Municipal Dispensary who had examined these three injured witnesses immediately after the incident and issued his certificates in that behalf. We have already pointed out the injuries on witnesses Krishna Pawar and Balkrishna as recorded in the medical certificates Exhibits 37 and 38 respectively. These two witnesses were further examined by Dr. Karande (P.W. 19) at the Solapur Civil Hospital. According to Dr. Hingamire the injuries Nos. 1 to 4 on Krishna Pawar were by a sharp cutting instrument and the probable cause of injury No. 5 was a hard and rough object. So also injuries Nos. 1 to 8 on Balkrishna were by a sharp cutting instrument while injury No. 9 was by some hard and rough object. He has further stated that in view of the critical condition of the two witnesses they were transferred on the same day to the Civil Hospital, Solapur for further treatment. So also injuries Nos. 1 to 8 on Balkrishna were by a sharp cutting instrument while injury No. 9 was by some hard and rough object. He has further stated that in view of the critical condition of the two witnesses they were transferred on the same day to the Civil Hospital, Solapur for further treatment. He has also deposed that injuries No. 1 to 4 on Krishna Pawar and injuries Nos. 1 to 8 on Balkrishna were possible by swords Articles 30 and 35. It is also his case that the injuries on Balkrishna as well as Krishna Pawar were grave and if immediate treatment was not given to Balkrishna, he might not have survived since they were dangerous to life. Dr. Karande has also deposed to the fact that the X-ray of the skull of Balkrishna revealed a fracture of the frontal bone of left side and X-ray of his left leg revealed a fracture of the lower ends of tibia and fibula of left side. According to him, the X-ray of the left hand of Krishna Pawar revealed a fracture of head of proximal phalanx as well as base of the middle phalanx of the left middle finger and also a fracture and dislocation of the proximal phalanx of the left ring finger. The X-ray of his right writst revealed traumatic amputation of the right hand beyond the proximal row of the carpal bones. He has also deposed to the fact that the grievous injuries on both Balkrishan and Krishna Pawar could be caused by sharp cutting instruments like the swords on record. As regards the injuries on Godse, Dr. Hingamire has stated that he had received an oblique incised wound on the right writst admeasuring 1.5 x 0.5 cms. and three other injuries, two of which were superficial wounds and the third a contusion. One of the superficial wounds was 6 x 0.5 cms. skin deep on the dorsal aspect on left forearm and the other was 6 cms. skin deep on left lateral side of chest on costal margin. As regards the injuries on the deceased Bhiwa, Dr. Khiste (P.W. 17) who performed the post-mortem examination and who has produced his notes (Ex. 48) in that behalf, has deposed that on external examination he found the following injuries on the dead body of Bhiwa :--- "1. Vertical incised wound 21 x 3 x 11 cms. As regards the injuries on the deceased Bhiwa, Dr. Khiste (P.W. 17) who performed the post-mortem examination and who has produced his notes (Ex. 48) in that behalf, has deposed that on external examination he found the following injuries on the dead body of Bhiwa :--- "1. Vertical incised wound 21 x 3 x 11 cms. on right side of centre of vertex, starting from right eyebrow to right side of occipital region, bone deep, pieces of brain coming out. 2. Incised wound bone deep 14 x 7 x 7 cms. on centre and posterior of left thigh, left femur cut into two pieces. 3. Incised wound 6 x 1 cms. on right gluteal region muscle deep. 4. Superficial incised wound 9 x 0.5 x 0.5 cms. on front of right thigh. 5. Abrasion 4 x 2 cms. on right posterior of thigh on centre. 6. Abrasion 2 x 2 cms. on right leg at centre and outer aspect. 7. Abrasion 3 x 2 cms. on right leg on outer aspect below injury No. 6." On internal examination he noticed the followed injuries :--- To quote him--- "On internal examination, I found haematoma all over on vertex, corresponding to external injury No. 1. There was vertical fracture of vertex, 21 cms. in length from right eye brow to right side of occipito parietal region, covered with reddish clotted blood and corresponding to external injury No. 1. There was laceration of brain of cerebrum into multiple piece corresponding to external injury No. 1." He has also further deposed to the fact that in the external examination he noticed a fracture of left femur and skull According to him, the probable cause of death was shock and hacmorrage due to fracture of skull, laceration of brain and fracture of left femur. 16. The aforesaid medical evidence shows that Bhiwa had received one injury on his head which had almost cleft-his head and the said injury was received by a sword. He had also received two more serious incised wounds, one on the right and the other on the left thigh. The injury on the left thigh had cut the thigh-bone into two pieces. In view of the eye-witness account on record, there is no difficulty in holding that these three injuries at least were effected by accused No. 1 Manohar by the sword in his hand. The injury on the left thigh had cut the thigh-bone into two pieces. In view of the eye-witness account on record, there is no difficulty in holding that these three injuries at least were effected by accused No. 1 Manohar by the sword in his hand. The evidence also further shows that the injury on the head was effected by accused No. 1 while Bhiwa was standing an assaulting Baban. Whether the said blow on Bhiwa was given by accused No. 1 from behind of from the front side is not material in this respect because the unanimous version of all the eye-witnesses is that immediately the said blow was given Bhiwa fell down as indeed it could not have been otherwise, because the blow was so severe that it had cleft Bhiwa's head into two parts and the brain had come out. However, it appears to us that this blow must have been given from behind because the evidence also shows that at that stage Head Constable Godse, who had recovered from his dash against the pole in the meanwhile, was shouting to him to give up and not to assault Baban further and at that time accused Manohar must have been a little away. Otherwise Bhiwa could not have successively assaulted Baban. Secondly, if accused No. 1 had come face to face with Bhiwa, then there is reason to believe that a battle of swords between the two adversaries would have ensued since both were armed with swords at the relevant time. Even assuming that the blow was given from the front side, it is certain that it was given when Bhiwa was unaware of the coming blow. This discussion has become necessary because Dr. Khiste has opined that the blow must have been given from the front side although we are unable to appreciate as to how the medical officer could depose to this fact in view of the evidence that it had vertically cleft the head and both the swords on record have straight blades of uniform dimnsions throughout. Whatever may be the controversy on the point, what requires to be noted is that accused No. 1 continued to assault Bhiwa after Bhiwa fell down as a result of the said fatal blow. The further injuries which he effected particularly the injury not he left thigh shows the ferocity with which the proceeded with his attack. Whatever may be the controversy on the point, what requires to be noted is that accused No. 1 continued to assault Bhiwa after Bhiwa fell down as a result of the said fatal blow. The further injuries which he effected particularly the injury not he left thigh shows the ferocity with which the proceeded with his attack. This shows that accused No. 1 while trying to safe the life of his leader Baban, had manifested more then a more desire to save his life. It is also necessary to note in this connection that Bhiwa himself had subjected the deceased Baban to a similar treatment with the result that even Head Constable Godse had to shout and ask him not to assault further the fallen Baban. The injuries on the dead body of Baban as found by Dr. Khiste himself as per the post-mortem report Ex. 49 are as follows : "1. Incised wound 10 cms. above right knee joint, 15 x 5 x 6 cms. on right thigh, bone deep with fracture of right femure at the shaft; 2. Incised wound 10 cms. above No. 1, 11 x 5 x 5 cms. on front of right thigh, muscle deep; 3. Incised wound bone deep, 6 x 8 x 8 cms. on right forearm on medical aspect with all muscles, vessels, bones cut. The right hand was cut from the forearm. 4. Incised wound on left thigh on inner aspect, muscle deep 9 x 6 x 5. 5. Incised wound 14 x 8 x 7 cms. on left superficial illiac crest on left side of pelvis, fracture of left illiac crest; 6. Incised wound superficial 11 x 2 x 1 cms. muscle deep on front and centre of left thigh; 7. Incised wound 2 x 1 x 1 cms. on centre and inner side of left thigh, muscle deep; 8. Incised wound 12 x 6 x 5 cms. bone deep on prosterior of left elbow joint; 9. Incised wound 4 x 4 x 1 cms. muscle deep on posterior and upper 1/2 of left forearm; 10. Incised wound on left dorsum of thumb 6 x 2 x 1 cms. with fracture of left thumb; 11. Incised wound on left side face, below left eye 12 x 3 x 2 cms. bone deep transverse fracture of outer laver of face. 12. Transverse incised wound 22 x 6 x 12 cms. Incised wound on left dorsum of thumb 6 x 2 x 1 cms. with fracture of left thumb; 11. Incised wound on left side face, below left eye 12 x 3 x 2 cms. bone deep transverse fracture of outer laver of face. 12. Transverse incised wound 22 x 6 x 12 cms. on right side of vertex, bone deep 3 inches above eye brow (right eye), laceration of brain, pieces of brain coming out; All above injuries were covered with reddish clotted blood and edges were clean cur everted; 13. Contused lacerated wound 2 x 1 cms. on right ear lobul, covered with reddish clotted blood;" In respect of these injuries Dr. Khiste has stated in his deposition that injuries Nos. 1 to 12 were caused by a sharp cutting instrument. He has also further deposed to the fact that in the internal examination, he had found fractures of the skull, right forearm, right femur, left pelvis and left elbow joint. The doctor has also opined that the probable cause of death was shock and haemorrage due to the fracture of skull, laceration of brain, fracture of right forearm, right femur, left pelvis and the left elbow joint. There is no doubt that these injuries on Baban coupled with the evidence that Godse had shouted at Bhiwa to stop assaulting further the fallen Baban, show that Bhiwa was at the relevant time possessed by the demon of revenge and he had attached Baban with all the fierceness at his command. 17. The aforesaid medical evidence with regard to the injuries on Balkrishna, Krishna Pawar, Godse, Bhiwa and Baban corroborate the eye-witness account with regard to the attacks made and the weapons used. The inquest panchanamas Exs. 27 and 28 on the dead bodies of Bhiwa and Baban respectively also strengthen the prosecution case in that behalf. The panchanama of the scene of offence (Ex. 29) show that a sword and an exe Articles 30 and 31 on record were used by the assailants. So also document Ex. 34, the panchanama of the discovery of sword (Article 35) on record at the instance of accused No. 1 (memorandum of his statement Ex. 33 on record) shows the use of the other sword. 29) show that a sword and an exe Articles 30 and 31 on record were used by the assailants. So also document Ex. 34, the panchanama of the discovery of sword (Article 35) on record at the instance of accused No. 1 (memorandum of his statement Ex. 33 on record) shows the use of the other sword. These panchanamas proved through the panch witnesses Bajrang (P.W. 8) and Kadam (P.W. 10) and the nature of the weapons on record reinforce both the eye-witness account and the medical evidence. 18. The defence suggestion that the deceased Baban had gone to surrender himself to the witness Head Constable Godse and there the persons assembled with arms attacked him is improbable and completely inconsistent with the evidence on record. In the first instance, it does not account for the presence of the present accused. Secondly, it does not explain injuries on Balkrishna, Krishna Pawar, Godse and the murder of Bhiwa. It is also contrary to the First Information Report Ex. 31 on record which corroborates the prosection case. It is also unbelievable that with Godse on the scene, he would not accept Baban's surrender and would allow others to indulge in an attack on Baban. The defence story is also contrary to the prosecution version proved by the evidence on record that the whole object of the people assembling in the mosque was to guard Shiva from the attack by the absconding Baban and the present accused. 19. We are therefore, more than satisfied that the prosecution has established beyond reasonable doubt its case that it was the absconding Baban and the present accused who had attacked the guarding party stationed in the mosque on the date and at the time in question and had injured Balkrishna, Krishna Pawar and Godse and murdered Bhiwa by their brutal assaults. The learned trial Judge has therefore, rightly convicted the accused for all the offences with which they were charged, viz., the offence under section 302 read with 34 of the Indian Penal Code for murdering Bhiwa; the offence under section 307 read with 34 of the Indian Penal Code for attempting to murder Balkrishna and the offence under section 326 read with 34 of the Indian Penal Code for causing grievous hurt with deadly weapons to Krishna Pawar. 20. 20. In support of his plea for the modification of the sentence of death, the learned Counsel for the accused submitted that the object of Baban and the accused was not to kill any of the victims but only to maim and disable them. According to him, this is clear from the pattern of the injuries inflicted by the accused and Baban in the companion case on Shiva and Gajendra as well as in the present case on Balkrishna and Krishna Pawar. He submitted that were it not for the ferocious attack by Bhiwa on Baban, possibly Bhiwa also would have received no different injuries from those of Balkrishna and Krishna Pawar. He submitted that this aspect of the incident is worth considering because till that time Bhiwa had not received any injury at the hands of either Baban or any of the accused. This argument though looks plausible at first sight fails to take into account the fact that Baban as well as the accused had emerged on the spot abruptly at the relevant time armed with the deadly, unusual weapons like swords and a battle-axe. Baban and accused No. 1 had swords and accused No. 2 had the battle-axe. A look at the said three weapons convinces us that they were no ordinary weapons but were specially procured for committing the crime. The evidence on record, particularly of Godse and Krishna Pawar, not to speak of the other witnesses such as Dariba, Shatrughna and Ganpat further shows that ever since Baban and the two accused were absconding there was a tension prevailing in the village. All the villagers and particularly the relations of the deceased Gajendra and injured Shiva, and the prosecution witnesses in the companion case, were under an apprehension that their life was in danger. It also appears from the evidence that the said persons were receiving threats that these absconding accused would take every step to destroy evidence in that case which meant, among other things, danger to the life of Shiva as wall as the other witnesses. The evidence of Krishna Pawar further shows that threats were being administered also to wipe out Shiva and his other brothers including Bhiwa and Balkrishna. The evidence of Krishna Pawar further shows that threats were being administered also to wipe out Shiva and his other brothers including Bhiwa and Balkrishna. Although further, the mystery of the sudden disappearance of some members of the police party from the village in the nick of hour has not been satisfactorily accounted for, that according to us is one of the circumstances which will have to be taken into account for holding that Baban and the two accused were planning for some time for launching the attack in question. The whole manner in which the incident took place further leaves no doubt in our mind that the apprehension of the villagers and particularly of Shiva and his brothers was well-founded. The attack was made only-two days after Shiva was brought to the village and lodged in the house. Baban and the accused had thus made the brutal cold blooded attack with all preparations and planning the avowed object of which was to wipe out Shiva and for that purpose to cause fatal injuries to the members of the guarding party and in particular to Shiva's brothers. That is why as soon as the attacking party came, one of them viz., Baban straight away rushed at Balkrishna even when he was sleeping, and gave him sword blows on his leg. Accused No. 1 also contributed his mite and in spite of the fact that Balkrishna was already grievously hurt by the blows of Baban, gave him blows by his sword on his right thigh and forehead. Now, as it happens in such incidents, it was only by an adventitious circumstance that Head Constable Godse could, after a struggle, succeed in snatching away the axe-from the hands of accused No. 2 Atmaram which made him abodon the scene. However, if Godse had not succeeded in disarming atmaram, there is no knowing how many more persons would have been injured and even killed. If further the idea was only to disable Shiva's brothers, then it is very difficult to understand as to why after Baban gave a severe blow on the left leg of Balkrishna cutting the bones of the leg, accused No. 1 should have though it necessary to inflict a blow on the forehead and another on his right thigh by his sword. These further injuries inflincted by accused No. 1 on Balkrishna do not show that the intention was only to disable the victims. Further, as the prosecution version shows, after injuring Balkrishna, Baban rushed at Krishna Pawar and tried to hit him with the sword which was avoided by Krishna Pawar again by a fortuitous accident. Krishna Pawar then succeeded somehow in grapping with Baban. At this stage, Baban called accused No. 1 to release him from the grip of Krishna Pawar as a result of which accused No. 1 gave a blow by the sword on the right hand of Krishna Pawar and thus Baban got released. At his stage, Baban called accused No. 1 to release him from the grip of Krishna Pawar as a result of which accused No. 1 gave a blow by the sword on the right hand of Krishna Pawar and thus Baban got released. Although at this stage Krishna Pawar ran away from the scene, Baban rushed towards Bhiwa with the sword in his hand, and were it not for Godse who at that stage caught Baban from behind, Bhiwa might have been injured at the hands of Baban. Taking advantage of Godse's grip on Baban, Bhiwa managed to snatch away the sword from the hands of Baban. Baban, however, gave a forceful jerk to Godse with the result that Godse whirled and dashed against the electric pole. Without the weapon in his hand, Baban thus freed, rushed at Bhiwa and it is at this stage that Bhiwa gave a blow to Baban on his leg and Baban fell down. It must be remembered in this connection that the evidence on record shows that Baban was a very strongly built man and as described by the witnesses he was a match for ten men at a time. One can imagine what would have happened if Baban had a sword in his hand when he rushed at Bhiwa. The very fact that he rushed at Bhiwa armless and even when Bhiwa was armed with the sword shows the daredevil that the was. Had Bhiwa not given a blow on his leg, Bhiwa would certainly have been a victim at the hands of Baban himself. The very fact that he rushed at Bhiwa armless and even when Bhiwa was armed with the sword shows the daredevil that the was. Had Bhiwa not given a blow on his leg, Bhiwa would certainly have been a victim at the hands of Baban himself. It is after Baban fell down that Bhiwa went at Baban as fiercely as he could and gave blow after blow on his person which ultimately put an end to Baban's life. It is at this stage that Godse shouted and accused No. 1 gave a fatal blow cleaving the head of Bhiwa and then mercilessly continued to assault the fallen victim. This sequence of events makes it difficult for us to accept the learned Counsel's contention that the intention was only to dismember the victims and not to cause fatalities. It also further appears that the persons who were there including all the eye-witnesses had no arms, for nothing has come in evidence to show that there were any such arms or that Krishna Pawar, Head Constable Godse, Balkrishna or Bhiwa made use of any arms of their own. In fact, the only arm which was used for causing injuries to Baban (who was the only person to be attacked from the side of the assailing party) was the sword snatched away from his hands by Bhiwa. Godse who snatched away the axe from the hands of Atmaram, does not seem to have wielded it for any the axe from the hands of Atmaram, does not seem to have wielded it for any purpose. It also does not appear that any other witness made use of the said axe. Therefore, it is evident that this preplanned and calculated attack was directed against the un-armed assembly of persons, two of whom viz. Dariba and Shatrughna ran away from the scene. Were they armed at the time at least by stocks, there is every reason to believe that they or the other witnesses would have made some attempt to resist the attack by their arms. We are, therefore, more then satisfied that the present attack was not only a precalculated but a cold-blooded one, and it was directed against the unarmed gathering with the object of causing fatal injuries on the victims to cause the disappearance of the evidence in the companion case as well as to do away with all the brothers of Shiva. We are, therefore, more then satisfied that the present attack was not only a precalculated but a cold-blooded one, and it was directed against the unarmed gathering with the object of causing fatal injuries on the victims to cause the disappearance of the evidence in the companion case as well as to do away with all the brothers of Shiva. That they did not succeed fully in their plan was because of the unforeseen developments in the incident which compelled accused No. 2 to retreat and Baban to lose his life. It is for this reason that we cannot also lose sight of the fact that not a single member of the armed constabulary was present at the spot and excepting Godse, none from the police party was available to give protection to Shiva and his brothers at the relevant time. 21. Assuming however that the object of the assailants was only to maim the victims by cutting their arms and legs following the pattern of the injuries on Shiva and Gajendra in the companion case, the question is, does the gravity of the offence become less on that account? The assailants idea of maiming, as per this argument, consists of chopping of the hands and legs of the victims. That is what they did to Gajendra and Shiva earlier and to Balkrishna and Bhiwa in the present case. Does chopping of hands and legs, constitute less than fatal offence? The accused know that Gajendra had met instantaneous death on account of his robust Constitution. According to medical evidence in the present case, Balkrishna and Krishna Pawar were in a critical condition, the former on account of the injuries on his legs and forehead and the latter because his right palm was severed from the hand. The injuries, according to the medical opinion, were dangerous to life. Had they not received proper medical treatment in time, death was a certainty. The injuries on these two witnesses, not to speak of those on Bhiwa, were such as the accused knew were likely to result in death and they had inflicted the said injuries knowingly and deliberately even according to this argument. Had they not received proper medical treatment in time, death was a certainty. The injuries on these two witnesses, not to speak of those on Bhiwa, were such as the accused knew were likely to result in death and they had inflicted the said injuries knowingly and deliberately even according to this argument. We therefore, fail to appreciate the argument that merely because the injuries were effected on hand and legs, the accused had no knowledge that the same would not be fatal or that they had no intention to cause such injuries as would prove fatal. That the said injuries did not result in fatalities of the two witnesses, is not because of the intentions of the assailants, but because of the medical treatment. 22. Shri Mistry then submitted that Bhiwa would not have met his death had he not indulged in venegeful attacks on the fallen Baban. In this connection, he pointed out that accused No. 1 attacked Bhiwa only to save the life of Baban, although in the process he might have exceeded his right of private defence. Shri Mistry argued that till Bhiwa attacked Baban, Bhiwa had not received any injury. This argument ignores several factors. Firstly, as has been pointed out above, the object of the attack was also to kill Shiva and his brothers. Bhiwa and Balkrishna were admittedly Shiva's brothers. Secondly, Bhowa would have been assaulted even earlier had it not been for the purely accidental circumstances that first Atmaram and then Baban were disarmed. Thirdly, if the assailants did not spare even Balkrishna who was asleep, it must be only an accident did not spare even Balkrishna who was asleep, it must be only an accident that Bhiwa had not received injuries at the earlier stage of the incident. Fourthly, accused, No. 1 gave his first blow on the heard of Bhiwa and that too so severely as to break the skill into two parts vertically. This does not show that even the first assault was in exercise of the right of private defence. What is more, even after this blow, the accused continued to assault mercilessly the fallen Bhiwa, a conduct which speaks for something other then the exercise of such right. The argument further ignores the most basic fact that the assailants cannot claim a right of private defence. There is therefore, no mitigating circumstance in favour of the accused. What is more, even after this blow, the accused continued to assault mercilessly the fallen Bhiwa, a conduct which speaks for something other then the exercise of such right. The argument further ignores the most basic fact that the assailants cannot claim a right of private defence. There is therefore, no mitigating circumstance in favour of the accused. 23. That takes up to the question of proper sentence to be imposed on the accused. The sentences for the offences under section 307 read with section 34 of the Indian Penal Code and section 326 read with section 34 of the Indian Penal Code cannot in the circumstances be said to be either severe or improper. Nor did Shri Mistry make a grievance about them. Hence it is not necessary to reconsider them. However, since almost all the arguments advanced by the learned Counsel were directed against the ultimate penalty imposed on the accused for the offence under section 302 read with section 34 of the Indian Penal Code for causing the death of Bhiwa, we gave our anxious consideration to the same. The learned Judge in support of the ultimate penalty has given his reasons. According to him, the accused along with Baban who were charged for the offence of murder of Gajendra and for multimating Shiva, were absconding, at the relevant time. They were so absconding with the object of doing away with Shiva who was a material witness to the said incident. The object was also to kill or multiate as many brothers of Shiva as possible. The learned Judge has also taken further into consideration the fact that the victims of the case viz., Balkrishna and Krishna Pawar were unarmed and Bhiwa came to be armed only when he managed to snatch the sword from Baban for the protection of his own life. There was no provocation from the side of the victims and the witnesses, and on the other hand Baban and the accused had come armed with deadly weapons in broad daylight with the avowed object of injuring Shiva and his brothers. They were reckless and unmindful of any consequence and showed scant regard for law and life. They had also adopted in human and brutal methods of dismembering and killing the victims. They were reckless and unmindful of any consequence and showed scant regard for law and life. They had also adopted in human and brutal methods of dismembering and killing the victims. If Baban and Atmaram had not been disarmed and controlled, it would be any body's guess as to how many more persons would have lost their lives and or limbs. The whole conduct of the accused and Baban showed callousness and cruelty. Accordingly to the learned Judge further there was no room for morbid pity on account of the youth of the accused. He also felt that there was no redeeming feature in the case to show any leniency in the sentence. 24. We have no doubt in our mind that the present case is an unusual one and requires an exemplarily punishment. The unusual features of the case flow from the fact that these accused and the deceased Baban were required in a trial for the murder of Gajendra and for amputation of limps of Shiva in an earlier incident between the same parties. The said offences were committed almost in broad daylight and within the view of all and with the callousness and audacity which showed scant respect for law and life. After committing the said heinous crime, Baban and the two accused were absconding from 10-9-1979 till 13-12-1979 i.e. the day of the fateful incident in the present case. During this period instead of being repentant for what they had done, they were terrorising the brothers of the victims Gajendra and Shiva and also the prosecution witnesses for the said incident, the declared object wipe out the other brothers of Shiva and Gajendra. It is with this object and not other, that they appeared on the scene at an opportune hour when the members of the armed constablulary were away and the unarmed witnesses were doing their work of guarding Shiva's life. When this un-armed gathering was in its unguarded moment, the three culprits came on the scene armed with lethal weapons two swords with blades of 46 inches each and a battle axe. The time land the manner of attack shows that there was a good deal of scene, they commenced their attack shows that there was a good deal of cold-blooded planning and preparation beforehand. The time land the manner of attack shows that there was a good deal of scene, they commenced their attack shows that there was a good deal of cold-blooded planning and preparation beforehand. After descending on the scene, they commenced their attack all of a sudden with sword blows on a sleeping man and gave him near fatal blows on the leg, the right thigh, the left thigh and the forehead. Then they tried to rush at others equally ferociously. As stated earlier, were it not for some saving graces viz., the accidents such as that of Godse snatching the axe from the hands of Atmaram, Krishna Pawar and thereafter Godse holding Baban and Bhiwa snatching away the sword from Baban, there would have been more injured and dead. Further, the fact the accused No. 2 ran away after he was disarmed does not lessen the gravity of his offence a whit because he had avowedly come for the purpose of causing fatal injuries to the victims and others and would have true to what he had done in the past, also indulged in the same horrendous assaults in which indeed his other companions did indulge. We have also to bear in mind that the present offence of murder was committed by the accused while they were needed for the earlier offence of murder. Although technically they will not be covered by section 303 of the Indian Penal Code for which offence death is the only penalty, the substantial nature of the offence is the same. Not only, therefore, there is redeeming feature in the case but all the circumstances on record go to aggravate the nature of the offence pointing out that a sentence of mere life imprisonment will not meet the ends of justice. 25. We are however of the view that the ultimate penalty is not necessarily the only appropriate sentence in such cases. Gallows may avenge the dead. They may also permanently remove from the scene desperadoes such as the accused who indulge in crime out of vendetta or rivalry. However, they do not necessarily benefit the society in general in the long run. Rivalries are not suppressed, and vendetta perpetuate themselves from generation to generation. More often than not they are counter productive. Death sentences in such cases are also not known to have prove a strong deterrence for others. However, they do not necessarily benefit the society in general in the long run. Rivalries are not suppressed, and vendetta perpetuate themselves from generation to generation. More often than not they are counter productive. Death sentences in such cases are also not known to have prove a strong deterrence for others. It has at best a retributive value in the common sense. But as stated earlier, retribution is a never ending chain. 26. Death sentences do have their use when society in general requires protection, which protection cannot be afforded except by permanently removing the criminal from amidst it. Far from being counter productive, death sentence in such cases restores the normal even flow of the societal life by removing the temporary distortions, and eliminating the passing deformities and perversities. These cases are of blood thirsty, irreclaimable, hardened criminals and murder maniacs. To spare such generty from the gallows is to expose the society to an unknown number of murders of innocent lives. It is not to be humane but to be callous to allow such criminals to return to the society, for they are a certain and a constant menance to the society in general. 27. Things are however different with offenders such as the present ones. They are a menance to an individual or a family, and not to the society at large. They do not live on and for crimes. Their crimes are on account of a temporary possession of them by lust for women, wealth or power, or by animalism, vengenance or false notions of valour. They are not beyond reformation nor are they lost to the society permanently. The heinousness or gravity of their offence may show that they deserve a longer period of suffering, a longer period to meditate and repent, and a more than usual period to recant and reform. The passage of time, the growth in age with consequent physical, mental and moral change, and the reformatory and rehabilitatory methods in the prison whenever adopted, have their own salutary effect on such offenders. If, therefore, in such cases, a sufficiently long period of imprisonment is awarded, it serves a triple purpose. It gives a chance to the offender to reform himself and to return to his family and society as a useful member thereof. It serves as a deterrent to others. If, therefore, in such cases, a sufficiently long period of imprisonment is awarded, it serves a triple purpose. It gives a chance to the offender to reform himself and to return to his family and society as a useful member thereof. It serves as a deterrent to others. It also does justice to the victims, their relations and well wishers and to the society at large, and protects them from the accused since they are incarcerated in prison till they are rendered physically and mentally harmless to them. 28. We are, therefore, of the view that in the present case death sentence is unnecessary and, therefore, not a proper one. At the same time, usual life imprisonment which in practice means not more than 14 years, incarceration in prison will not be too inadequate and a travesty of justice. This is a case which lies in the murky area between the sentence of death and of the usual life imprisonment. The accused have betrayed a tendency to settle their score by violence. They have no compunctions in using inhuman methods to achieve their ends. Respect for law and life is alien to them. It will take sufficiently long time to reorient their outlook towards society and its affairs, to instill in them respect for law and life, and social discipline, and to make them repent for the reprehensible crimes perpetrated by them. It is also necessary that they are made to suffer for a sufficiently long time to bring home to them and others the unpleasant consequences of their brutal behaviour. At the same time, the relations and sympathisers of the victims and above all the members of the society must feel that justice has been done, that inhuman acts adequately punished and crimes however audacious and horrendous are not dealt with lightly. The sentence of imprisonment has therefore to be both deterrent and exemplary. It is also necessary to keep such accused away from society for a sufficiently long period so that when they rejoin it, the society does not feel insecure again by their presence amidst it. It is for this reasons that we are of the view that mere life imprisonment which does not last for more than 14 years in normal cases would not meet the ends of justice in the present case. It is for this reasons that we are of the view that mere life imprisonment which does not last for more than 14 years in normal cases would not meet the ends of justice in the present case. It is necessary that the accused should remain in jail for a sufficiently long period and according to us, that period should not be less than 25 years in any case. While determining this period we are guided by the fact that as stated earlier, under section 303 of the Indian Penal Code, an accused who is undergoing a sentence of imprisonment for life for the offence of murder has to go to gallows if he commits another murder while undergoing such a sentence. In the present case, the accused had committed the murder of Gajendra and had inflicted almost fatal injuries on Shiva and it is when they were absconding from the arms of law that they chose to commit the offences which are the subject matter of the present case, including the offence of murder of Bhiwa. In the said case they have already been convicted by us and sentenced to life imprisonment for the offence of murder of Gajendra and also for the offence under section 307 read with section 149 of the Indian Penal Code for mutilating Shiva. In that case also, the learned Judge had awarded a sentence of death which we have reduced to a sentence of imprisonment for life. It will therefore be both unrealistic and mechanical if in the present case also the accused are merely sentenced to life imprisonment. For the sentences of life imprisonment given in both the cases are bounded to run concurrently and hence inspite of the two sets of similar offences, the accused would come out of jail, like any other offender, only after 14 years. It is therefore necessary that we give a direction in the present case that although we are reducing the sentence from death to life imprisonment for the offence under section 302 read with section 34 of the Indian Penal Code, in no case the present accused should be allowed to come out of jail unless they put in a minimum of 25 years of imprisonment. With this direction, the reduction of the sentence from death to life imprisonment would serve the ends of justice in the present case. 29. With this direction, the reduction of the sentence from death to life imprisonment would serve the ends of justice in the present case. 29. We are were that the direction we are giving is unprecedented. But want of precedent need not prevent us from passing an order which is just and legal. There is nothing in law to bar such direction. The nature of the sentence of life imprisonment is incarceration until death. It is only by virtue of the provisions of section 432 of the Criminal Procedure Code read with those of section 55 of the Indian Penal Code that the prisoners sentenced to life imprisonment, are able to come out of the prison at all. Therefore, in a case such as the present one where the sentence is being given in lieu and instead of the sentence of death, a direction such as the present one is neither illegal nor unjust. 30. Accordingly we order as follows :-- The conviction of both the accused under section 307 read with section 34 of the Indian Penal Code for attempting to murder Balkrishna is confirmed. So also the sentence of life imprisonment imposed upon them for the said offence. We also confirm the conviction of both the accused for the offence under section 326 read with section 34 of the Indian Penal Code for causing grievous hurt with deadly weapons to Krishna Pawar as well as the sentence of rigorous imprisonment for five years given by the learned Judge on that account. We further confirm the conviction of both the accused under section 302 read with section 34 of the Indian Penal Code for committing the murder of Bhiwa. We however do not approve of the sentence of death and instead and in lieu of the ultimate penalty, award to each of the accused life imprisonment on the condition that none of the accused will be released from jail unless and until each of them serves a minimum period of 25 years' imprisonment. We make it clear that each of the accused will remain in jail at least for a period of 25 years notwithstanding the remissions and concessions, if any, granted to him under the relevant rules. 31. All sentences to run concurrently with each other as well as with the sentences in Confirmation Case No. 4 of 1980. 32. We make it clear that each of the accused will remain in jail at least for a period of 25 years notwithstanding the remissions and concessions, if any, granted to him under the relevant rules. 31. All sentences to run concurrently with each other as well as with the sentences in Confirmation Case No. 4 of 1980. 32. Order in Confirmation Case No. 3 of 1980 as well as in Appeal No. 708 of 1980 accordingly. Order accordingly. -----