JUDGMENT 1. - Appellants Moola Ram, Kishna Ram, Rekha Ram, Sohan Lal, Purkha Ram along with one Kesha Ram (since acquitted by the trial Court) were tried for the offences under ss. 147, 148, 302 read with 149,323, read with 149,342 read with 149 & 364 read with 149 Indian Penal Code by the Sessions Judge, Churu. By the judgment dated March 6, 1981 the five appellants were convicted for the offence under sections 302 read with 149 Indian Penal Code and sentenced to death. They were also convicted for the offences under section 364 read with 149, 342 read with 149 and 147 Indian Penal Code and sentenced to rigorous imprisonment for four months on the first count, three months simple imprisonment on the second count and six months rigorous imprisonment on the third count. Appellant Moola Ram was also held guilty for the offence under section 323 Indian Penal Code and sentenced to one year rigorous imprisonment for that offence. 2. As the appellants were sentenced to death, the learned Sessions Judge has submitted the proceedings to this Court for confirmation of death sentence. The five appellants have filed separate Jail Appeals. D.B. Criminal Appeal No. 214/81 is the represented appeal filed by all the five appellants. As the D.B. Criminal Murder Reference No. 1/81, the Jail Appeals filed by the appellants and their represented appeal arise out of same judgment, we propose to dispose them of by one single judgment. 3. Briefly stated the facts of the case giving rise to the trial of the appellants, the reference and the appeals are as under : Mangu Ram, husband of Smt. Pinchu (PW 3) father of Jiwan (PW 6) and the brother of appellant Moola Ram had died about ten years back Deceased Mohan Ram used to visit the house of Smt. Pinchu, Moola Ram had suspicion about the relations between Smt. Pinchu and Mohan Ram deceased and did not relish Mohan Ram going to the house of Smt. Pinchu or having any relation with her. Mohan Ram had arranged the marriage of Jiwan (PW 6) in the village in which his own son was married. This also enraged Moola Ram and his sons and they did not attend the marriage. On 28-11-1979, at about 8.00 p.m. Mohan Ram had gone out ease himself. Mohan Ram had arranged the marriage of Jiwan (PW 6) in the village in which his own son was married. This also enraged Moola Ram and his sons and they did not attend the marriage. On 28-11-1979, at about 8.00 p.m. Mohan Ram had gone out ease himself. While returning he went to the house of Jiwan and asked him to accompany him to work at the grass cutting machine if he so desired. Mohan Ram then went away towards his house. At about 9.00 or 9.30 p.m. Bhagu Ram (PW 1) son of the deceased and Smt. Gayani (PW 2) his mother were inside the house Smt. Gayani (PW 2) was telling story to her grand children. The door of the house was closed but the window was open. When Mohan Ram was entering the house through the window, Moola Ram appellant caught hold of his bushirt and pulled him out. Moola Ram gave a lathi blow on the head of Mohan. The lathi got broken. Then the remaining appellants and Kesha Ram gave lathi blows to Mohan Ram. He raised a cry. Bhagu Rani (PW 1) and Smt. Gayani (PW 2) came out of the house and tried to intervene but Moola Ram warned them of dire consequences if they would not run away from there. On hearing the cries, Jiwa (PW 6) also reached there and asked the appellants as to why they were committing such an in human act. On that, Sohanlal and Kishna Ram appellants ran after Jiwan and Moola Ram gave a lathi blow on his hand. Bhagu Ram, Smt Gayani (PW 2) and Jiwan raised a cry which attracted Bhanwar (PW 11) and Mala Ram (PW 10) neighbour and they reached the site. The assailants took the injured Mohanram to the house of Moola Ram and tied him there with a string to a nail and gave lathi blows and kicks to him, Mala Ram (PW 10) and Bhanwar (PW 11) also reached there. Bhanwar and Mala Ram wanted to enter the house but Moola Ram warned them of the same fate if they would not go away from there. Jiwan (PW 6) and Smt. Pinchu (PW 3) also asked the appellants not to give a beating to Mohan Ram but they also were warned of dire consequences if they interfered. Bhagu Ram called Jassu Jat and Dalam Chand Sunar. Jiwan (PW 6) and Smt. Pinchu (PW 3) also asked the appellants not to give a beating to Mohan Ram but they also were warned of dire consequences if they interfered. Bhagu Ram called Jassu Jat and Dalam Chand Sunar. They went to the house of Moola Ram and found Mohan Ram unconscious. Bhagu Ram along with Bhanwarlal went in a tractor to Police Station, Chhaper and lodged a written report Ex. P 1 before the Station House Officer, Police Station, Chhapar, PW 15 Chiranji Lal. On the basis of that report First Information Report Ex. P. 2 was chalked out. The Station House Officer along with A S.I. Ramu Singh (PW 8) and other staff went to village Chadwas at the house of Moola Ram. He found Mohan Ram tied with a nail in unconscious condition. He was bleeding from his head injury. In the presence of motbirs, the Station House Officer untied the rope and prepared the memo Ex. P. 15. The blood stained strap of wrist watch of Mohan Ram and the blood stained string with which he was found tied, were also taken in possession by the Station House Officer. He also prepared the site inspection plan and site inspection memos of the two places of occurrence, i.e. out side the house of the deceased and inside the house of Moola Ram. From the site out side the house of Mohan Ram one piece of lathi was taken in possession. Mohan Ram was sent for medical examination and treatment of Chawas Dispensary. Jiwan had also sustained injury in the incident. He was also sent to Chawas Dispensary for medical examination. Dr. B.K. Napula, on November 29, 1979, examined Jiwan Ram and noted one lacerated wound rounded, 1.5 cm. in depth on the left are elbow joint. The injury was simple and caused by blunt object. The duration was twelve hours. The injury report of Jiwan is Ex. P. 7 Dr. B.K. Narula on the same day examined Mohan Ram and prepared the injury report Ex. P, 14. The Doctor noted following 19 injuries on the person of Mohan Ram. 1. Lacerated wound 8 cm x 2 cm bone deep on the scalp left side 6 cm above the ear. 2. Lacerated wound 5 cm x 3 cm bone deep right side of the scalp 8 cm above ear. 3. P, 14. The Doctor noted following 19 injuries on the person of Mohan Ram. 1. Lacerated wound 8 cm x 2 cm bone deep on the scalp left side 6 cm above the ear. 2. Lacerated wound 5 cm x 3 cm bone deep right side of the scalp 8 cm above ear. 3. Lacerated wound 3 cm x 2 cm bone deep left side of the scalp 3 cm above the ear. 4. Bruise 8 cm x 4 cm outer side of the left chest. 5. Bruise 8 cm x 2 cm outer side of the left chest. 6. Bruise 7.2 cm near the injury no. 5. 7. Bruise 9 cm x 2 cm just below the injury no. 5. 8. Bruise 8 cm x 2 cm just near injury no. 6. 9. A bruise 7 cm x 2 cm x 1.75 cm on the back 8 cm below of left scapula. 10. Bruise 8 cm x cm on the back below 10 cm on the angle of left scapula. 11. Abrasion rounded 1/4 cm left side of the nose. 12. Bruise 12 cm x 1 cm vertically placed on the outer side of the left thigh. 13. Bruise 10 cm x 2 cm near injury no. 12. 14. Bruise 10 cm x 2 cm on the left buttock. 15. Abrasion 2.5 cm x 2 cm on the the left iliac creast. 16. A lacerated 3.5 cm x 1.5 cm bone deep front of the leg below 5 cm from left knee. 17. A lacerated 3 cm x 1/4 cm front of the leg above 15 cm from the ankle joint. 18. Abrasion 3 cm x 1.5 cm on the inner side of the right knee. 19. Abrasion 1 cm x 1/4 cm on the left side of the upper lip. 4. Injury Nos. 11 to 19 were found to be simple in nature. The opinion regarding the injuries nos. 1 to 10 was reserved till the x-ray examination. The Doctor advised x-ray of chest and the skull. The Station House Officer Chhaper vide letter Ex. P. 1 sought the opinion of the Doctor regarding the rib injury. The Doctor vide Ex. P. 9 opined that injuries nos. 4 to 10 were grievous in nature and 1 to 3 were simple in nature. The Doctor advised x-ray of chest and the skull. The Station House Officer Chhaper vide letter Ex. P. 1 sought the opinion of the Doctor regarding the rib injury. The Doctor vide Ex. P. 9 opined that injuries nos. 4 to 10 were grievous in nature and 1 to 3 were simple in nature. After seeing the x-ray, the Doctor opined that there were fractures of 6, 7, 8 ribs but there was no fracture of skull bone. As the condition of the injured was serious, Doctor Narula sent him for better treatment at Sujangarh hospital. At Sujangarh, A.S.I. Ramu Singh (P.W. 8) being informed by Doctor Madhu Sudhan Sharma (P. W. 7) that injured was in a fit state to give statement recorded his dying declaration Ex. P. 21. At Sujangarh hospital Mohan Ram expired at 9.15 p. m. On November 29, 1979 his post-martem examination was conducted by Dr. Madhu Sudhan Sharma (PW 8) who prepared the postmortem examination report Ex. P. 10 and noted following external injuries on the body : 1. Lacerated wound 1 cm x 2 cm bone deep left side of scalp 6 cm above ear. 2. Lacerated wound 5 cm x 3 cm bone deep right side of scalp 1 cm ear. 3. Lacerated wound 3 cm x 2 cm bone deep left side of scalp 8 cm above ear. 4. Lacerated wound 3.5 cm x 1.5 cm bone deep front of left leg 5 cm below knee. 5. Incised wound 1 cm x ⅓ cm x 1/2 cm on inner side of right angle (for bone section). 6. Lacerated wound: 3 cm x 1 cm x 1/4 cm left leg 8 cm below knee. All these wounds were found stiched. 7. Bruise 10 cm x 3 cm outer side of left chest. 8. Bruise 7 cm x 2 cm outer side of left chest. 9. Bruise 9 cm x 2 cm ) 10. Bruise 8 cm x 2 cm ) 11. Bruise 8 cm x 2 cm ) near injury no. 2 12. Bruise 7 cm x 2 cm on back left side. 13. Bruise 8 cm x 3 cm back below injury No. 6. 14. Bruise 1/4 cm in diameter left side of nose. 15. Bruise 13 cm x 1.5 cm outer side of left thigh and buttock. 16. Bruise 10 cm x2 cm ) 17. 2 12. Bruise 7 cm x 2 cm on back left side. 13. Bruise 8 cm x 3 cm back below injury No. 6. 14. Bruise 1/4 cm in diameter left side of nose. 15. Bruise 13 cm x 1.5 cm outer side of left thigh and buttock. 16. Bruise 10 cm x2 cm ) 17. Bruise 10 cm x 2 cm ) near injury no. 9. 5. On dissection of the dead body the Doctor noted following internal injuries : 1. On right parietal bone 5" long lenial fracture. 2. Fracture of skull along front parietal joint extending up to left ear. 3. Brain membranes were con jested. 4. Blood present In left side of cavity out side brain clotted and liquid both. 6. The Doctor noted fracture of skull along front parietal joint extending up to front of left ear. He also noted fracture of 6, 7, 8, 9 ribs left on lateral side 6, 7, 8 left sides on back side. In the opinion of the Doctor Mohan Ram died due to shock of head injury leading to hamato-ma in skull left side and lung injury left side leading to collapse of lung and bleeding in chest cavity. The blood stained clothes of the deceased were taken in possession by the police after postmortem examination. 7. Efforts were made to trace out the accused. On December 2,1979 Station House Officer Chiranji Lal (P. W. 15) arrested the accused and prepared their arrest memos. Moola Ram had injuries on his person at the time of his arrest and was therefore, sent for medical examination. Dr. H.K. Rajvanshi (P.W. 9) Medical Officer, Incharge Dispensary Chhapar examined the injuries of Moola Ram on December 2, 1979 and prepared the injury report Ex. P. 23. The Doctor noted following injuries on his person: 1. Abrasion withcrust formation On right foreamposterio medical aspect 2"x5" in middle. 2. Abrasion Left forearmposterio medical aspect 1" x l"-3" above theelbow, hard crusted form. 3. Abrasion On the foreheadright side. 5"x 1" hard crusted form. 4. Abrasion Below left eyelower eyelid. 2". 1" hard crusted form. According to the Doctor all the injuries were simple in nature and could have been caused by friction against hard substance. Duration of the injuries was above three days. 3. Abrasion On the foreheadright side. 5"x 1" hard crusted form. 4. Abrasion Below left eyelower eyelid. 2". 1" hard crusted form. According to the Doctor all the injuries were simple in nature and could have been caused by friction against hard substance. Duration of the injuries was above three days. While in police custody the accused furnished information for getting recovered blood stained clothes and lathies and recoveries were made in pursuance of those information's. Blood stained articles taken in possession during the course of investigation were sent for chemical examination. The report of the Forensic Science Expert is Ex. P. 52 and that of the Serologist & Chemical Examiner is Ex.P. 53. 8. Upon completion of necessary investigation, chargesheet against the appellants and co-accused Kesha Ram was filed in the Court of Munsif & Judicial Magistrate First Class, Ratangarh. The learned Magistrate finding a primafacie case exclusively triable by the Court of Sessions committed them to the Sessions Judge, Churu to stand their trial. The learned Sessions Judge,Churu chargesheeted the accused for the aforesaid offences and recorded their pleas. All of them denied the indictments and claimed to be tried. In order to substantiate its case prosecution examined 15 witnesses in all. 9. All the accused in their statements under section 313 of the Code of Criminal Procedure denied the allegations levelled against them. Moola Ram stated that his house and that of Smt. Pinchu was the same. Mohan Ram used to visit the house of Smt. Pinchu. He was asking Mohan Ram not to go there but he was adament for visiting the house of Smt. Pinchu for the last three years. That, Jiwan Ram also used to tell Mohan Ram not to go to Smt. Pinchu but Mohan Ram insisting upon the visits. That, he (accused) on the day of occurrence asked Jiwan Ram and Mohan Ram not to quarrel, at which Mohan Ram told him as to what he can do if he would continue the visits. That, at that time Mohan Ram jumped the small wall in between his (accused) house and that of Smt. Pinchu and Jiwan Ram had scuffled with him. That, in that scuffle there was exchange of slaps and fist blows and Mohan Ram fell down on the nail (khunta) used for tying the cattle. That, at that time Mohan Ram jumped the small wall in between his (accused) house and that of Smt. Pinchu and Jiwan Ram had scuffled with him. That, in that scuffle there was exchange of slaps and fist blows and Mohan Ram fell down on the nail (khunta) used for tying the cattle. That, he (accused) also gave a fist blow and asked for a string Jiwan tied Mohan with the rope. That, he asked Jiwan to lodge the report at the Police Station but Jiwan refused to go there because of fear in the night. Then he asked Jiwan to keep watch of Mohan Ram and himself proceeded for the Police Station to lodge the report. That, he went to the Police Station but was informed by the constable that the Station House Officer was not there and junior Sub-inspector Ram Singh was there. That, he narrated the story to Ramusingh. Ramu Singh asked him whether he had brought any evidence. On his denial for the same, Ram Singh refused to record his report and he returned back. That, prior to his reaching the house other persons went in the tractor and brought the police in the village. That, the police then took him with it. Sohan Ram has stated that Ramusingh Sub-Inspector came to his village and arrested him while he was sitting on the road, telling him that he has also been named. Kishna Ram also stated that he had been given in adoption to his uncle and was living with him. 10. Two defence witnesses were examined to substantiate the contention of Moola Ram that Mohan Ram used to visit the house of Smt. Pinchu and was insisting upon having relations with her despite Moola Ram's objecting to it. One witness has been examined to negative the prosecution case the quarrel or beating had taken place out side the house of the deceased. The learned Sessions Judge did not believe the prosecution case regarding the presence of Kesha Ram and acquitted him of the charges. Regarding the five other appellants the prosecution evidence was believed and they were convicted and sentenced as stated earlier. 11. We heard Mr. B.R. Purohit, learned counsel for the appellants and Mr. D.S. Shishodia, learned public prosecutor for the State and carefully examined the record of the case. 12. Mr. Regarding the five other appellants the prosecution evidence was believed and they were convicted and sentenced as stated earlier. 11. We heard Mr. B.R. Purohit, learned counsel for the appellants and Mr. D.S. Shishodia, learned public prosecutor for the State and carefully examined the record of the case. 12. Mr. B.R. Purohit, has assailed the findings of the learned trial Judge on a number of grounds. According to him, the witnesses to the alleged occurrence out side the house of Mohan Ram are either his relatives or interested in him and therefore there testimony should not have been believed. Regarding the occurrence inside the house of Moola Ram, the contention of the learned counsel is that the prosecution evidence on that count is not specific and therefore, the defence story coming forth from the statement of Moola Ram should have been believed. It has been emphatically stressed by the learned counsel that the failure of the prosecution to explain the injuries on the person of Moola Ram strengthens his defence plea. Learned counsel has vehemently attacked the veracity of dying declaration on the ground that the deceased could not be in a fit state of mind to state anything. It has also been urged that the failure to examine neighbours, raises suspicion about the truthfulness of the prosecution case. 13. The learned Public Prosecutor, controverting these contentions, submitted that there is convincing evidence of the eye witnesses about the incident taking place out side the house of the deceased as well as inside the house of Moola Ram. That the medical evidence has supported the prosecution case. That, there is no reason to doubt the veracity of the dying declaration. The learned Public Prosecutor submitted that the injuries on the person of Moola Ram are not of the type that failure to explain the same may create any reasonable doubt on the fairness of the investigation. 14. There is no dispute about the relations between Moola Ram appellant and deceased Mohan Ram being strained for some years. According to the prosecution Mohan Ram had managed the marriages of Jiwan and his sister which caused annoyance to Moola Ram and he, despite being the uncle of Jiwan, did not attend these marriages. It has also come on the record from the prosecution witnesses that Mool Ram was not happy in Mohan Ram visiting the house of Jiwan and Smt. Pinchu. It has also come on the record from the prosecution witnesses that Mool Ram was not happy in Mohan Ram visiting the house of Jiwan and Smt. Pinchu. On the other hand the defence version coming forth in the statement of Khama Ram (DW 4) and Malu Ram (DW 6) is that Mohan Ram used to visit the house of Smt. Pinchu and the illegal relations between the two caused annoyance to Moola Ram. According to these defence witnesses, Moola Ram had asked them to tell Mohan Ram not to visit the house of Smt. Pinchu. Suggestion to that effect was made to the prosecution witnesses also but all of them denied it. Be it as it may, this fact is duly proved that the relations between Mohan Ram and Moola Ram were strained and Moola Ram did not relish Mohan Ram's going to the house of Smt. Pinchu. The contention of the learned counsel for the appellants is that on such a trivial matter the relations could not be so strained so as to lead Mohan Ram and his companions to commit such a heinous crime. The intention of the culprits in giving beating to Mohan Ram resulting in his death can be known by the manner of beating and the seriousness of the injuries. Suffice it to say for the present, that, this circumstance of the relation between the deceased and Moola Ram not being cordial is an important factor. 15. It is alleged by the prosecution that the beating had taken place after Mohan Ram had come out the house of Jiwan Ram and Smt. Pinchu. The prosecution has led circumstantial as well as direct evidence to substantiate the case against the appellants. 16. This is a case in which there are two places of incident. At first the beating was given outside the house of Mohan Ram and thereafter in the Court-yeard of Moola Ram appellant where the deceased was tied with a nail and was found unconscious when PW 15 Chiranji Lal Station House Officer reached there on receiving information from Bhagu Ram and Bhanwara. The witnesses to the incident out side the house of the deceased are his son Bhagu Ram, his mother Smt. Gyani and Jiwan. The witnesses to the incident out side the house of the deceased are his son Bhagu Ram, his mother Smt. Gyani and Jiwan. While stating the facts of the case it has been stated in detail as to how the attention of these three witnesses was attracted and they went to the site where Mohan Ram was given a beating by six persons including the appellants. The presence of Smt. Gyani and Bhagu Ram at the house of Mohan Ram is not disputed. The argument of the learned counsel for the appellants is that they could not be in a position to see the origin of the quarrel because they, being inside the house in late hours of the night could have come out only on hearing the cry of Mohan Ram. This argument was also raised at the trial and the learned trial Judge has expressed the opinion that there may be force in the defence argument that these two witnesses might not have been Mohan Ram actually being pulled out of the window and it might be on hearing his cry that Bhagu Ram and Smt. Gyani and it might have come out and seen the occurrence. Even if it was so, the evidence of the two witnesses regarding the assailants inflicting lathi blows to the deceased cannot be discarded. Their statements have been corroborated by Jiwan Ram. Prsence of Jiwan Ram at the site cannot be doubted because,apart from his house being nearby, he had also had sustained injury at the elbow with a lathi alleged to have been inflicted by Moola Ram when he wanted to rescue Mohan Ram Jiwan Ram also stated about Kishna Ram and Sohan Lal appellants chasing him up to about one hundred feet when he, on sustaining the lathi blow, had taken to heels. 17. It has been argued by the learned counsel for the appellant that Smt. Gyani and Bhagu Ram being the family members of Mohan Ram were interested in him. The evidence of Jiwan Ram has been criticticised on the ground that he having intimate relations with Mohan Ram was interested in him. 17. It has been argued by the learned counsel for the appellant that Smt. Gyani and Bhagu Ram being the family members of Mohan Ram were interested in him. The evidence of Jiwan Ram has been criticticised on the ground that he having intimate relations with Mohan Ram was interested in him. This argument is inconsistent with the defence plea taken by Moola Ram that Jiwan Ram was also not happy about Mohan Ram going to his house and on that day it was Jiwan Ram who had tied Mohan Ram with a nail in the court-yard when he(Mohan Ram) was giving a beating to Moola Ram there. 18. The learned counsel for the appellants has criticised the evidence of these three eye witnesses by drawing our attention to certain inconsistencies in their statements at the trial and those recorded by the police. It may be observed that those contradictions are on such immaterial points that the witnesses cannot be said to have improved their version at the trial. For example in the police statement Ex. D. 1 witnesses Bhagu Ram has not stated about his father going to ease himself rather had only stated about his going from the house after taking food. Mr. Purohit has laid great emphasis on the omission of details in Ex. D. 1 such as Mohan Ram placing his foot in the window and then being dragged out and at that time Moola Ram inflicting lathi blow on his Head. As we have observed above, the witness might not have actually seen his father being pulled out but for that reason the fact of his immediately reaching where his father was being given a beating cannot be disbelieved. Similarly, the omission in the statement of Smt. Gyani that prior to going to ease himself Mohan Ram had brought oil from the house of Dalu Sunar is of no held to the defence because that is not an important fact connecting the accused with the commission of the crime. There is of course an important contradiction in the statement of Smt. Gyani in her statement before the police Ex. D. 2 and the one at the trial. There is of course an important contradiction in the statement of Smt. Gyani in her statement before the police Ex. D. 2 and the one at the trial. In her police statement she had stated about Mala Ram and Bhanwara Ram reaching the site when she was narrating what had happened there, while in the Court she had stated about those two persons reaching outside her house when the beating was going on. As we will discuss later on Mala Ram and Bhanwara Ram had not seen the beating outside the house of Mohan Ram. On reaching there they were informed of what had happened and then they immediately rushed to the house of Moola Ram and witnesses all that had happened there. If Smt. Gyani, an old lady of 60-70 years had made a mistake on one point in her statement in the court recorded after about eight months of the date of occurrence, that in itself would not affect the credibility of her statement which otherwise inspires confidence. 19. From the statement of Bhagu Ram and Jiwan it has come out that Mala Ram and Bhanwara Ram had reached the place of the first incident just after Mohan Ram was taken away by the assailants to the house of Moola Ram. Bhanwar (PW 11) attracted by the shrieks coming from towards the house of Mohan Ram, went to the house of Mala Ram, his uncle, had informed him that quarrel has taken place outside the house of Mohan Ram. Then both of them went there. They met Bhagu Ram and Smt. Gyani and were told Moola Ram his son along with five of six other persons had given a beating to Mohan Ram and dragged him towards the house of Moola Ram. They asked these witnesses to go there for Mohan Ram's rescue. Then both these persons went to the house of Moola Ram. Thus there is the evidence of at least two independent witnesses to the effect that immediately after the first incident they were informed by Bhagu Ram and Smt. Gyani about Moola Ram and his son and five or six others giving a beating to Mohan Ram and thereafter dragging him away from there. Thus there is the evidence of at least two independent witnesses to the effect that immediately after the first incident they were informed by Bhagu Ram and Smt. Gyani about Moola Ram and his son and five or six others giving a beating to Mohan Ram and thereafter dragging him away from there. In this view of the matter, the prosecution case regarding the first incident stands proved Similarly, the fact that the five appellants were there amongst the assailants has been duly established by Bhagu Ram, Jiwan Ram and Smt. Gyani. 20. Regarding the incident inside the court-yard of Moola Ram the evidence of Smt. Gyani and Bhagu Ram is that they while standing in the street had seen Mohan Ram being beaten inside and tied to nail. Smt. Pinchu is an important witness in that concern. Her house happens to be adjacent to the house of Moola Ram. There is only a small boundary wall in between the two houses. It has come on record that a person standing in the house of Smt. Pinchu could easily see what was happening in the court-yard of Moola Ram. Smt. Pinchu had stated about the six assailants dragging Mohan Ram in the court-yard of Moola Ram and inflicting lathi blows on him. The witness also stated that when she asked them not to do so, they threatened to kill her also. That, they tied Mohan Ram to the nail and continued giving him beating with the lathis. Jiwan had also reached his house after sustaining injuries at the incident outside the house of Mohan Ram and has stated about the six persons giving beating to Mohan Ram and tying him with a string to the nail. Bhanwara (PW 11) has stated the persence of the five appellants there in the court-yard and Kishna Ram, Moola Ram, Rekha Ram and Purkha Ram giving a beating with lathis to Mohan Ram and Sohan Lal standing nearby. He had seen Mohan Ram being tied with the nail. Similar is the statement of Mala Ram. Even assuming for the sake of arguments that Smt. Pinchu and Jiwan were not having cordial relations with Moola Ram etc. and Bhagu Ram and Smt. Gyani happened to be the family members of the deceased, still there is nothing to disbelieve the testimony of two independent witnesses viz. Similar is the statement of Mala Ram. Even assuming for the sake of arguments that Smt. Pinchu and Jiwan were not having cordial relations with Moola Ram etc. and Bhagu Ram and Smt. Gyani happened to be the family members of the deceased, still there is nothing to disbelieve the testimony of two independent witnesses viz. Bhanwara and Mala Ram so far as the incident inside the house is concerned. 21. Another important piece of evidence to substantiate the prosecution case is the dying declaration Ex. P. 21, recorded by Ramu Singh, A.S.l. (PW 8) in the presence of Doctor Madhu Sudhan Sharma (PW 7). According to Ramu Singh when Dr. B.K. Narula (PW 5), after examining Mohan Ram, directed that he be taken to the Sujangarh for x-ray and treatment, he took him to Sujangarh hospital. That, he was directed by Chiranjilal (PW 15) to record the statement of the injured on his regaining consciousness. According to Ramu Singh he requested Dr. Madhu Sudhan Sharma, in whose observations Mohan Ram was, to inform him if Mohan Ram had regained consciousness and was in a fit state of mind to give statement. That, on being told by Dr. Madhu Sudhan Sharma that the patient had regained consciousness & was fit to give statement, he in the presence of the Doctor, recorded the statement Ex. P. 21. The witness stated that he had written exactly what Mohan Ram had told.Dr. Madhu Sudhan Sharma had corroborated this version. According to Dr. Madhau Sudhan Sharma (PW7) he had made an endorsement on Ex. P. 22 `tehrir' by the police on November 29, 1979 at 11.30 a.m. to the effect that patient was fit to give evidence and was in full senses. The Doctor further stated that the statement Ex. P. 21 of the injured was recorded by A.S.l. Ramu Singh in his presence and was read over to the injured who admitting it to be correct affixed his thumb impression on it. The witness was specific on the point that Mohan Ram at that time was fit to give statement and was properly replying the questions put to him. Dr. Sharma has proved his signatures at the bottom of that statement Ex. P. 21. 22. The learned counsel for the appellants has assailed the veracity of this dying declaration on a number of grounds. Dr. Sharma has proved his signatures at the bottom of that statement Ex. P. 21. 22. The learned counsel for the appellants has assailed the veracity of this dying declaration on a number of grounds. According to him, if Mohan Ram was in such a serious condition that treatment was not possible at Chadwas Dispensary and he was admitted at Sujangarh hospital in an unconscious state, how could it be possible for him to give statement and that too in such a detailed form. Yet another argument advanced by the learned counsel for the appellants is that the injured was from the initial stage surrounded by relatives and friends and therefore, possibility of those persons telling him about the incident and he narrating the same at their instance cannot be ruled out. The learned counsel further argued that the eye witnesses are not believable and therefore, the dying declaration remains uncorroborated and for that reason should not have been made the basis of conviction. The credibility of the dying declaration has also been challenged on the ground that it was recorded by the Police Officer and efforts were not made to avail the service of a Magistrate. Another argument advanced is that if Mohan Ram was conscious why he affixed his thumb impression instead of singing it. The learned Public Prosecutor on the other hand placed reliance on the statement of Ramu Singh and Doctor Mdhau Sudhan sharma and submitted that the deceased might have been in a conscious state only for a little while and the safer course for the police was to record the statement instead of utilising that time for proce-during the service of the Magistrate. According to the learned Public Prosecutor there was no occasion for the relatives and friends to have a talk with the injured before he gave statement to Ramu Sing. 23. A number of authorities have been cited from both the sides on this point which we would just discuss. 24. In the case of State of Haryana v. Harpal Singh and others, AIR 1978 SC 1530 the point for determination before their Lordships was,whether the deceased was in a position to make the dying declaration. 23. A number of authorities have been cited from both the sides on this point which we would just discuss. 24. In the case of State of Haryana v. Harpal Singh and others, AIR 1978 SC 1530 the point for determination before their Lordships was,whether the deceased was in a position to make the dying declaration. In that case their Lordships were of the opinion that the fact that the pulse was not palpable and blood pressure un-recordable and the patient was in a gasping condition, would not necessarily show that the patient's condition was such that no dying declaration could be recorded. 25. In the case of Tehal Singh and others v. State of Panjab & Others, AIR 1979 SC 1347 , their Lordships were pleased to observe that, it may be in certain situation that the very wealth of details in a statement attributed to a dying man may arouse suspicion. Their lordships at the same time were pleased to further hold that, on the other hand circumstance that a statement contains a wealth of details cannot necessarily lead to the inference that the statement is a fabricated one. The dying declaration in that case was recorded by Head Constable just as in the case in hand. The Police Officer recording the statement in that case had stated that he had put questions and recorded the answer of the deceased. The Head Constable stated that he had recorded what the deceased stated, in his own way. Despite, that, their Lordships were of the opinion that it did not mean that the Plead Constable recorded some thing other than what the deceased had stated, rather what it meant was, that the language was his but the substance was that of the deceased. No infirmity was attached to the dying declaration on that account. 26. With regard to the argument that no value can be attached to the dying declaration because of the friends and relatives being with the deceased from the place of occurrence up to Sujangarh Hospital, the learned counsel for the appellants referred to the case of Balak Ram and another v. State of U.P., AIR 1974 SC 2165 . In that case it was not considered prudent 'to base conviction on the dying declaration made to the investigating officer particularly when it was not signed by declarant or the witnesses. In that case it was not considered prudent 'to base conviction on the dying declaration made to the investigating officer particularly when it was not signed by declarant or the witnesses. Evidentiary value of the dying declaration was also discarded on the ground that the declarant was in the midst of friends and admirers right since the time of the incident until the dying declaration was recorded by the S. D. M. 27. In the case of Habib Usman v. The State of Gujarat, AIR 1979 SC 1181 . their Lordships were pleased to attach great weight to the dying declaration recorded very shortly after the occurrence and did not consider it worth being thrown away as tottered because of the fact that some friends and relatives happened to be with the deceased before the statement was recorded. 28. Keeping in mind the principles enunciated in the above referred cases when we turn to the case on hand we do not find that the dying declaration suffers from any infirmity so as to attach no weight to it. 29. Eye witnesses to the occurrence have stated that Mohan Ram had become unconscious when tied to the nail in the court-yard of the appellant Moola Ram. According to the Investigating Officer Chirajilal (PW 15) and Ramu Singh (PW 8) also the injured was unconscious when they had reached there and he was taken to the hospital Chadwas in that condition Dr. B.K. Narula (PW 5) of the Chadwas Dispensary has stated that Mohan Ram, when brought to the hospital, was in the state of semi-consciousness. The doctor further stated that he tried to interrogate Mohan Ram but could not succeed because he was not answering properly. This is not a casein which there is no witness to the dying declaration. Dr Madhusudhan Sharma (PW 7) who had certified on Ex. P. 22, that injured was in a fit state to give the statement, has professed to be there at the time of recording of the dying declaration Ex. P. 21 by A.S.l. Ramu Singh. The doctor has also put his signatures at the bottom of the statement. Dr. Madhusudhan Sharma has admitted that as the condition of Mohan Ram was precarious he was brought from Chandwas to Sujangarh hospital for treatment and he could not say whether after reaching that hospital his condition had improved or deteriorated. P. 21 by A.S.l. Ramu Singh. The doctor has also put his signatures at the bottom of the statement. Dr. Madhusudhan Sharma has admitted that as the condition of Mohan Ram was precarious he was brought from Chandwas to Sujangarh hospital for treatment and he could not say whether after reaching that hospital his condition had improved or deteriorated. But so far as the time at which the dying declaration was recorded is concerned, he had tried to find out the condition of the patient on receiving tehrir Ex. P. 22 and found him fit for giving the statement. The Doctor has clearly stated that Mohan Ram was answering the questions put to him after understanding them. In this view of the matter, we are not impressed by the argument that the injured was not possessing proper senses to give the statement. So far as affixing of the thumb impression on the dying declaration instead of putting the signatures is concerned, we may observe that there is no evidence to suggest that Mohan Ram was literate and knew how to sign. 30. Learned counsel for the appellants has laboured much to emphasise that the statement recorded by the police officer should not be attached any weight. While discussing the authorities above we have noted that the statement recorded by the police officer has not always been discarded. It depends upon the facts and circumstances of each case as to what weight is to be attached to the statement recorded by the police. In the present case the injured was unconscious or semi-conscious till some time before the statement was recorded and A.S.l. Ramu Singh was constantly awaiting for his regaining consciousness. If he, instead of recording the statement himself would have made efforts to bring the Magistrate to record the dying declaration there was no certainty that by that time the patient would have continued to be in senses. In such circumstances, if the A.S.l, Ramu Singh recorded the statement himself in the presence of Dr. Madhu Sudhan Sharma, it cannot be said to be an infirm dying declaration. So far as the question of the relatives and friends being with the deceased is concerned, suffice it to say that his condition till the time of recording the statement was not such so as to give any person opportunity to tutor him. Madhu Sudhan Sharma, it cannot be said to be an infirm dying declaration. So far as the question of the relatives and friends being with the deceased is concerned, suffice it to say that his condition till the time of recording the statement was not such so as to give any person opportunity to tutor him. Taking all these facts into consideration we are of the opinion that the dying declaration does not suffer from any infirmity. 31. The next question emerging for determination is whether any corroboration is required to the dying declaration, and if so whether in the present case the dying declaration has been corroborated by other evidence on record. 32. In the case of Harbans Singh and another v. The State of Punjab, AIR 1962 SC 439 their Lordships were pleased to hold that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. After laying down certain guide lines for ascertaining whether the dying declaration can be pressed into service, their Lordships were pleased to opine that the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities as may be disclosed in evidence in the case. 33. In the case of Bana Naiko and others v. State of Orissa, AIR 1976 SC 2013 , the dying declaration having not been proved by reliable evidence, the accused was held entitled to benefit of doubt. The dying declaration could not be corroborated by the statement of those who had been examined as eye witnesses. The evidence of the eye witnesses was no reconcilable with the medical evidence for the reason that Doctor had stated that because of the congestion of the brain of the deceased due to the head injuries, he having lost consciousness might not have regained it. In the case on hand the contents of the dying declaration have been corroborated by the eye witnesses to the incident as discussed by us earlier. So far as the weapon used and the injuries sustained, as given in the dying declaration are concerned, the medical evidence has also supported the same. In the case on hand the contents of the dying declaration have been corroborated by the eye witnesses to the incident as discussed by us earlier. So far as the weapon used and the injuries sustained, as given in the dying declaration are concerned, the medical evidence has also supported the same. The argument of the learned counsel for the appellants that Kesha Ram was named as an assailant in the dying declaration but has been acquitted by the court which shows that the deceased was not stating true facts, and was trying to implicate a number of persons is not appealing for the reason that the learned trial Judge has not found the prosecution case duly established against Kesha Ram in view of the statement of Bhanwara Ram and Mala Ram. Hence for that reason alone the dying declaration, which otherwise inspires confidence, recorded in proper manner in the presence of the doctor and corroborated by the testimony of the eye witnesses has rightly been relied upon by the learned trial Judge. 34. Another evidence led by the prosecution against the appellant is the recovery of lathis and blood stained clothes in pursuance of the information furnished by them. The prosecution case, as evident from the dying declaration, is that when Moola Ram inflicted lathi blows to Mohan Ram his lathi was broken. The Investigating Officer has recovered a piece of lathi from the site i.e. outside the house of Mohan Ram. At the instance of Moola Ram lathi was recovered and the learned trial Judge after seeing the two has observed that the piece of lathi recovered at the site was of the lathi said to have been recovered at the instance of accused Moola Ram in pursuance of the information furnished by him. The serologist has detected human blood on lathi and the shirt and the dhoti recovered at the instance of Moola Ram in pursuance of the information furnished by him. The shirt and dhoti recovered at the instance of Purkha Ram in pursuance of the information furnished by him, the shirt recovered at the instance of Rekha Ram in pursuance of the information furnished by him and the bushirt recovered at the instance of Kishna Ram in pursuance of the information furnished by him, was also found to have been stained with human blood, as per report of the serologist Ex. P. 35. P. 35. The learned trial Judge in our view committed no error in taking this recovery as a piece of corroborative evidence against the appellants. 35. Now we would consider the argument of the learned counsel for the appellants regarding the defence version. 36. The statements of all the appellants except Moola Ram are of total denial. Moola Ram's version we have stated above. It is pertinent to note that not a single question has been put to Jeewan Ram that it was he who had tied Mohan Ram to the nail in the court yard of Moola Ram because of Moola Ram and the witness objecting to Mohan Ram going to the house of Smt. Pinchu. Otherwise also, the plea is not attractive because from the prosecution evidence it has been duly proved that the relations between Jiwan and Moola Ram were strained. The learned counsel for the appellants has tried to strengthen the defence plea by drawing our attention to the in juries sustained by Moola Ram. It has been strongly contended that the prosecution has not explained those injuries and therefore, adverse inference should be drawn against it. The case of the learned counsel for the appellants is that Moola Ram alone might be the person involved in the affair and his son, relatives and friends have been unnecessarily implicated by the prosecution. 37. Dr. Hamender Kumar Rajvanshi (PW 9) has examined the in juries of Moola Ram on December 2, 1979 and has noted four abrasions on his person. It has not been suggested to any of the prosecution witnesses that there was any scuffle between Mohan Ram and Moola Ram, rather it was suggested to Bhanwara that he and Mala Ram had thrown accused Moola Ram on the ground and gave a beating to him. The witness denied that suggestion. Unless there is specific evidence that the injuries on the person of the accused were sustained at the time of the occurrence, it is not obligatory on the prosecution to explain those injuries. Moolaram was arrested on the fifth day of the occurrence. Dr. Hemender Kumar Rajvanshi (PW 9) has stated the duration of the injuries to be above three days but it is not sufficient to lead to the conclusion that the abrasions of Moola Ram were sustained at the time of the incident itself. Moolaram was arrested on the fifth day of the occurrence. Dr. Hemender Kumar Rajvanshi (PW 9) has stated the duration of the injuries to be above three days but it is not sufficient to lead to the conclusion that the abrasions of Moola Ram were sustained at the time of the incident itself. Failure of the prosecution to explain superfluous injuries on the person of the accused is not in every case fatal to its case. 38. The learned counsel for the appellants next argued that the prosecution case regarding the unlawful assembly is not established and therefore, conviction of the appellants for the various offences with the help of Section 149 of the Code of Criminal Procedure is not sustainable. 39. Mr. Purohit vehemently pressed that the evidence against Sohan Lal was almost the same as that against Kesha Ram who has been acquitted and therefore, his presence at the site and participation in the crime has been wrongly held to established. The learned counsel referred to the statements of Bhanwara Ram and Mala Ram who have stated that at the time when the assailants were giving a beating to Mohan Ram in the Court-yard of Moola Ram, Sohan Ram was standing at a distance and they had not seen anything in his hands at that time. Smt. Pinchu has specifically stated about all the appellants giving a beating to Mohan Ram, in the Court-yard of Moola Ram. Bhanwara and Mala Ram being independent witnesses the learned trial Judge has placed much reliance on them and we also agree with his opinion. Even if much weight may not be attached to the statement of Smt. Pinchu because of her strained relations with Mohan Ram, still two witnesses, Bhanwara Ram and Mala Ram, established the presence of Sohan Ram in the court-yard of Moola Ram at the relevant time. The learned counsel for the appellants referred to the case of Muskan & others v. State of Maharashtra, AIR 1977 SC 45 . where their Lordships were pleased to observe as under : "A mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly." 40. where their Lordships were pleased to observe as under : "A mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly." 40. Had there been no other evidence connecting Sohan Ram with the commission of the crime, we, in the light of the statements of Bhanwara Ram and Mala Ram would have considered him merely a bystander. But there is sufficient evidence to establish his participation in the commission of the crime. We have believed the testimony of Smt. Gyani, Bhagu Ram and Jiwan Ram so far as the incident outside the house of Mohan Ram is concerned. All of them have named Sohan Ram and have also stated about his giving a beating to Mohan Ram with a lathi. In the dying declaration also name of Sohan Ram and his giving lathi blows to Mohan Ram finds place . It is also to be noted that Bhanwara Ram were not there while the injured was taken by the assailants in the court-yard inside the house of Moola Ram, rather they had reached there subsequently and found him by the side of nail tied to it In such circumstances Sohan Ram, even if he was standing at some distance from Mohan Ram having nothing in his hand in the last phase of the incident, it cannot be said that his presence was only that of a spectator. The case of Kesha Ram was quite distinguishable. Bhanwara and Mala Ram have not even shown his presence inside the house and for that reason his case was rightly considered not be proved beyond reasonable doubt. 41. In this view of the matter, the learned trial Judge has committed no error in holding that the assailants had formed an unlawful assembly of five or more persons and for that reason there appears to be no illegality in pressing into service u/s. 149 of the Code of Criminal Procedure for convicting the appellants for the various offences. 42. In this view of the matter, the learned trial Judge has committed no error in holding that the assailants had formed an unlawful assembly of five or more persons and for that reason there appears to be no illegality in pressing into service u/s. 149 of the Code of Criminal Procedure for convicting the appellants for the various offences. 42. Learned counsel for the appellants next argued that even if the prosecution case is taken be true, still the object of the assailants cannot be said to commit the murder of Mohan Ram and therefore, the conviction for the offences under section 302 read with 149 of the Indian Penal Code is not maintainable. According to the learned counsel, weapon of injuries being lathis and most of the injuries being simple in nature, the case at the most may fall within the preview of Section 304 Part II of the Indian Penal Code. The argument is not appalling. Five or six persons armed with lathis, pulling the victim out of the window of his house while he was entering inside and causing as many as nineteen injuries to him without any lawful excuse and then forcibly removing him to the court-yard and then tying him to the nail after giving him further beating cannot be said to have no intention of killing him. The intention and object of the assailants are not write on their faces rather have to be gathered from the facts and circumstances of the case. Dr. B. K. Narula has noted nineteen injuries on the person of the appellant, detailed description of which we have given earlier. 43. In view of the medical evidence on record there is no substance in the argument of the learned counsel for the appellants that the injuries caused were of minor nature and vital part of the body were not involved. We have therefore, no hesitation to hold that the intention of the assailants was of causing serious bodily injuries to Mohan Ram and the bodily injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. 44. We have therefore, no hesitation to hold that the intention of the assailants was of causing serious bodily injuries to Mohan Ram and the bodily injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. 44. In the case of State of Andhra Pradesh v. Rayavarapua Pannayya and another, AIR 1977 SC 45 their Lordships were pleased to lay down the guidelines regarding the cases falling within the ambit of murder and culpable homicide not amounting to murder and were pleased to enunciate the principle that for the cases to fall within Clause (3) of Section 300 of the Indian Panel Code, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. In the case on hand, it is duly established that out of the number of injuries at least seven were grievous and the parietal region, scalp, ribs, pleura and lungs were involved. From the circumstances it is also evident that the injuries sustained were not accidental or unintentional, 45. Mr Purohit has emphasised that if the intention of the assailants was to commit the murder of Mohan Ram they could have fulfilled their aim while giving a beating outside and there was no reason for them to drag him inside the house and tying him with the nail. According to the learned counsel, it clearly shows that the assailants had intended to give a lesson to the deceased for his adamancy in visiting the house of Smt.Pinchu and having illicit relations with her. The argument has no force. The reason is that it has been duly established by the prosecution witnesses that most of the injuries, including that on the head, were inflicted in the incident outside the house of the deceased. There is no specific evidence that he was given a sevegas beating in the court-yard. This has also come on record from the statements of Bhanwara Ram and Mala Ram that Mohan Ram was in an unconscious condition when they saw him being tied at the nail. The case of State of Punjab v. Surjan Singh and another, AIR 1976 SC 1130 . relied on by the learned counsel for the appellants to substantiate this contention is of no help to him. The case of State of Punjab v. Surjan Singh and another, AIR 1976 SC 1130 . relied on by the learned counsel for the appellants to substantiate this contention is of no help to him. In that case the prosecution case was that the two accused had assaulted the deceased and then dragged him to the house and give him the fatal blow. This contention was negatived. The two eye witnesses had stated about the accused dragging the deceased to their house and then one of them striking the `Kasiya' blow to him. Their Lordships were pleased to observe that the High Court did not seem to have believed the story of dragging and had observed that the deceased went in front of the house of the accused persons. Their Lordships did not find any error of law in the findings of the High Court that the appellants were guilty for the offence under section 326/34 and not under section 302/34 of the Indian Penal Code. 46. Regarding reason for the deceased being tied to the nail inside the court-yard, there is not much to think over in view of the defence taken. We find full force in the argument of the learned Public Prosecutor that the assailants had taken the step of tying the injured to the nail for two reasons. Firstly, that he may not be at all in a position to move or to be taken out and secondly, the case may fit in within the probability of the defence version coming forth in the statement of Moola Ram that the deceased had jumped in his court-yard and Jiwan Ram at the instance of Moola Ram had tied him to the nail. We have not considered the defence version plausible. 47. In view of the above discussions, we are in perfect agreement with the findings of the learned trial Judge that prosecution has succeeded in establishing the guilt of the assailants for the offence under section 302 read with 149 of the Indian Penal Code. 48. We have not considered the defence version plausible. 47. In view of the above discussions, we are in perfect agreement with the findings of the learned trial Judge that prosecution has succeeded in establishing the guilt of the assailants for the offence under section 302 read with 149 of the Indian Penal Code. 48. From the evidence on record it has been clearly established that the appellants had formed an unlawful assembly and had forcefully taken Mohan Ram from the window of his house in order that he may be murdered or be so disposed of as to be put in danger of being murdered and after causing him severe injuries wrongfully confined him in the court-yard. 49. In such circumstances, the conviction of the appellants under sections 147, 364/149 and 342/149 of the Indian Penal Code also does not call for any interference. The conviction of Moola Ram for the offence under section 323 of the Indian Penal Code for the injury caused to Jiwan Ram is however not sustainable for the reason that he had been charge-sheeted for the offence under section 323/149 of the Indian Penal Code and not for under section 323 Indian Penal Code simplicitor. 50. We now come to the reference made by the learned Sessions Judge under section 366 of the Code of Criminal Procedure for confirmation of death sentence of all the five appellants. 51. The trend of legislation now is that punishment of death ought to be very sparingly imposed. This trend found its expression in the provisions of Section 354(2) of the Code of Criminal Procedure, 1973. 52. The term "special reason" appearing in the section had been the subject matter of discussion in a number of cases before the Supreme Court. In the case of Bachan Singh v. State of Punjab, AIR 1980 SC 898 . their Lordships have been pleased to enunciate the following principle : "Section 354(3) of the Code of Criminal Procedure 1973, marks a significant shift in the legislative policy underlying the Code of 1898 as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for certain other capital offences under the Penal Code, were normal sentences. Now according to this changed legislative policy which is patent on the face of Section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception". 53. Their Lordships had discussed in the above referred case, the principles enunciated in all the important cases decided by the Supreme Court on the point. Their Lordships were not pleased to approve the majority view (of 2.1) in the case of Rajendra Prasad v. State of U.P., AIR 1979 SC 916 . that the "special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal". But at the same time were of the opinion that it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. Their Lordships were pleased to opine that it is only when the culpability assumes the proportion of extreme depravity that "special reason" can legitimately be said to exist". Their Lordships were also pleased to note the aggravating circumstances which, in the absence of any mitigating circumstance, may be regarded as an indication for imposition of extreme penalty and held that preplanned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. 54. Keeping these guidelines in view, when we turn to the present case, we do not find that there exist "special reasons" which may warrant imposition of extreme penalty to the appellants. The weapons used by the appellants in the commission of the offences were lathis. The facts and circumstances of the case do not reveal that it was a cold blooded murder. In our opinion there are no sufficient reasons for awarding death penalty to the appellants. 55. Consequently the appeals filed by the appellants viz. Moola Ram, Kishna Ram, Rekha Ram, Sohan Lal and Purkha Ram are partly allowed. The conviction and sentences of the appellants for the offences under sections 364/149, 342/149 and 147 of the Indian Penal Code are maintained. The conviction and sentence of Moola Ram for the offence under section 323 of the Indian Penal Code are set aside. Moola Ram, Kishna Ram, Rekha Ram, Sohan Lal and Purkha Ram are partly allowed. The conviction and sentences of the appellants for the offences under sections 364/149, 342/149 and 147 of the Indian Penal Code are maintained. The conviction and sentence of Moola Ram for the offence under section 323 of the Indian Penal Code are set aside. The conviction of the appellants for the offence under section 302/149 is upheld but the sentence of extreme penalty of death awarded to Moola Ram, Kishna Ram, Purkha Ram, Sohan Lal and Rekha Ram for offence under section 302/149 of the Indian Penal Code is converted to the sentence of imprisonment for life. 56. In view of the above discussion regarding the death sentence, the reference for confirmation of death sentence of the appellants for the offence under section 302/149 of the Indian Penal Code is rejected.Reference is rejected. *******