Judgment :- K.M. NATARAJAN, J.: 1. R.T.No.1 of 1993 has come up before us on a reference made by the learned Sessions Judge of Nilgiris, Ootacamund, for confirmation of the death sentence awarded to the accused 1, 2 and 4 under Sec.366(1) of the Code of Criminal Procedure in S.C.No.23 of 1988 on his file. Criminal Appeal No.380 of 1993 has been preferred by the accused 1 to 10 and 14 challenging the legality and correctness of the conviction and sentence awarded to them in the abovesaid case. The accused were convicted and sentenced by the learned Sessions Judge as under: A-1 A-2 A-3 A-4 A-5 And A-6 A-7 A-8 and A-9 A-10 and A-14 Accused 11 died during the trial and hence the charges framed against him were abated. The substantial sentences awarded to all the accused in respect of all the offences were directed to run concurrently. The accused 1 to 10,12,13,14,15 were tried for the offences under Sec.120-B read with 148, I.P.C., 326 read with 149, I.P.C., 302 (two counts); 302 read with 149, I.P.C. (two counts) and 201 read with 149 on the allegation that the accused who were all the members of unlawful assembly met in pursuance of a criminal conspiracy to murder the deceased Nallamayan and Ochappan on 26.2.1988 at about 10.30 a.m. near the junction of Ooty-Sooloor road all the accused who were armed with stick, aruval and iron pipe attacked one Murugan on his right arm, Accused 8 and 9 beat him on his head and leg with the help of a stick and caused grievous injuries. Accused 1 cut Nallamayan, hereinafter called as D-1 on the forehead front chin with an aruval. Accused 2 stabbed him on his knees indiscrimately. Accused 7, 8 and 9 beat him with sticks on the chin and legs, as a result of which he died. A-14 beat D-1 on the right shoulder with iron pipe Accused 1 cut Ochap-pan hereinafter called as D-2 with an aruval on the hand left elbow. A-14 beat D-2 with iron pipe on the hand of left shoulder. Accused 7, 8 and 9 beat him on his hands and caused injuries as a result of which he died and in order to screen the offence of murder they carried the dead bodies of D-1 and D-2 into the Solai and throw them out there. A-14 beat D-2 with iron pipe on the hand of left shoulder. Accused 7, 8 and 9 beat him on his hands and caused injuries as a result of which he died and in order to screen the offence of murder they carried the dead bodies of D-1 and D-2 into the Solai and throw them out there. In respect of all the above charges, the prosecution examined P.Ws.l to 20, filed Exs.P-1 to P-33 and marked M.Os.1 to 37. 2. The case of the prosecution as disclosed from the oral and documentary evidence can be succintly stated as follows: A-2 and A-3 are sons of A-1. A-4 is the aunts son of P.W.2. The rest of the accused are the associates of A-1 to A-4. All the accused are illicit distillers and thereby they are closely associated to each other.P.W.1, P.W.2, D-1 Nallamayan and D-2 are also illicit distillers. Hence they were also associated with each other. P.W.1, P.W.2, D-1 and D-2 are residents of Thummanathi at Ootacummund. P.W.1, is the son of the P.W.2. They were carrying on illicit business in the village since the arrack business was not flourishing in that village, D-1 Nallamayan decided to shift the illicit arrack business to Sholur and inspected the said place for trade. But A-1 and A-4, who were carrying on the illicit arrack business in that area by manufacturing the same came to beat D-1. D-1 requested them to permit him to distill illicit arrack at Sholur for which A-1 and A-4 refused and they threat ened the deceased Nallamayan D-1 to run away from the Village. Thereupon P.W.1, D-1, D-2 and one Pandit met A-1 Ammasi and requested him to allot a separate place for them to sell I.D. arrack. But A-1 immediately came to beat them. Enraged by this, P.W.1, D-1, D-2, Pandi and others went to Sholur village and requested P.W.3 Sundarrajan to show the place where A-1 Ammasi and A-4 Thangaraj were carrying on the manufacture of illicit arrack. Accordingly P.W.3 took them to the place where they were distilling arrack. P.W.1., D-1, D-2 and Pandi and others destroyed the entire apparatus used for distilling I.D. arrack and the molasses available on the spot. On 23.2.1988. A-1 sent word to P.W.1., P.W.2, D-1 and D-2 through the messenger that they were entering into a compromise. Accordingly P.W.3 took them to the place where they were distilling arrack. P.W.1., D-1, D-2 and Pandi and others destroyed the entire apparatus used for distilling I.D. arrack and the molasses available on the spot. On 23.2.1988. A-1 sent word to P.W.1., P.W.2, D-1 and D-2 through the messenger that they were entering into a compromise. Accordingly on 25.2.1988, P.W.1., P.W.2, D-1 and D-2 went to A-4 Thangaraj to have a settlement talk in his house at Ootaccummund. P.W.2 was standing outside. At about 9.30 a.m. when they went to the house of A-4, A-5 and A-6 were already there. A-4 convinced P.W.1., P.W.2, D-1 and D-2 that there should not be any fight between them and their disputes can be settled by meeting A-1 Ammasi, who was at Sholur. At that time A-5 and A-6 were frequently going outside the house of A-4 and coming back into his house. A-4 Thangaraj requested A-5 Muniyandi to bring a taxi and accordingly A-5 brought a taxi bearing registration No.6664. P.W.1, was the taxi driver. P.W.1, P.W.2, D-1 and D-2, A-5, A-6 and A-4 got into the taxi and the taxi proceeded towards Sholur. While the taxi was near the junction of Sholur, A-4 told to P.W.1. Murugan, P.W.2 Mayandi, D-1 and D-2 that ‘how dare your people have destroyed my apparatus for distilling and also the molasses. Immediately A-5 and A-6 shouted that these people must be taught a suitable lesson. The taxi went away by 1 km. for Sholur junction. A-1 to A-3, A-8 to A-10, A-14 and others came running and waylaid the taxi. A-4 got down from the taxi first and instigated the accused by saying that all of them should be pulled down and killed. On hearing the same, P.W.2 got down and ran away. A-1 cut D-1 on his head and forehead with aruval which he has having in his hand. When D-1 attempted to run away, A-2 cut him with an aruval on the leel of D-1 which he was having in his hand. When D-1 attempted to wrest and ran A-14 beat him with iron pipe on the right shoulder. D-1 fell down. The rest of the accused also beat D-1. 3. A-1 cut D-2 with M.O.1 aruval on his right shoulder twice. A-14 beat him on the head with iron pipe and also on the left shoulder. When D-1 attempted to wrest and ran A-14 beat him with iron pipe on the right shoulder. D-1 fell down. The rest of the accused also beat D-1. 3. A-1 cut D-2 with M.O.1 aruval on his right shoulder twice. A-14 beat him on the head with iron pipe and also on the left shoulder. The rest of the accused beat D-2 with stick and surrounded him. 4. A-3 cut P.W.1 on his head, A-9 beat P.W.1 with a stick on his head. A-3 cut P.W.1 with M.O.3 aruval on his head. The accused dragged P.W.1., D-1 and D-2 into the solai(Garden)and throw them there and thereupon left the place. About 10 minutes after the accused left the scene place P.W.1 got up and noticed D-2 was lying unconscious and D-1 was lying dead. According to him, the occurence took place at about 10.30 a.m. Thereupon he rushed to the Government Hospital, Ooty by bus. At about 5 p.m. The Sub-Inspector of Police came to the hospital and enquired him and he gave a statement. Since he was not able to affix the signature he affixed his thumb-impression. The wound on the hand was bandaged as it was bleeding. P.W.16 Head Constable attached to the Ootacamund Police station received an anonymus telephonic information at about 12.45 p.m. on 25.8.1988 that there was a quarrel on the way to Sholur and on receipt of the information he made entry in the General Diary and informed the same to the Sub-Inspector over phone. P.W.19, the Sub-Inspector of Police attached to the town police station at Ooty. On receipt of that telephonic message reached the police station and sent the Head Constable and two other constables to the scene place near Sholur immediately. Thereupon, he went to the Government hospital on learning that one of the injured had gone to the Government hospital. On reaching the hospital P.W.19 was informed that P.W.1 was taken to the operation theatre and he waited till the operation was over and at about 5.30 p.m. he met P.W.1 after the operation was over and recorded the complaint, Ex.P-1. On reaching the hospital P.W.19 was informed that P.W.1 was taken to the operation theatre and he waited till the operation was over and at about 5.30 p.m. he met P.W.1 after the operation was over and recorded the complaint, Ex.P-1. Thereupon he returned to the police station and about 5.30 p.m., registered a case in Cr.No.30/88 and prepared the express report and copies and sent them to the court and the higher officials P.W.20, the Inspector of Police received the first information report on 25.2.1988 at about 6 p.m. and took up investigation, with the help of the petromax light he went to the scene place along with the Sub-Inspector, P.W.19 and the police party in a jeep. The Inspector then prepared the rough sketch, Ex.P-30. He came to know from P.W.16 that one of the injured was lying at the scene place and it was he who sent him to the Government hospital. About 10 feet from that place a dead body was lying. He held in question D-1 and during inquest he examined P.Ws.2 to 3. Ex.P-31 is the inquest report prepared by him. Thereupon he sent the dead body with a requisition to the Medical Officer to conduct autopsy, through police constables. He seized M.Os.24 to 28 from the place where the dead body was lying under cover of a mahazar arrested by witnesses and thereupon he went straight to the Government Hospital, examined of P.W.1. and got his statement and also recorded the statement of P.Ws.2 to 4. He held inquest at the hospital over the dead body of D-2. Ex.P-32 is the inquest report prepared by him. P.W.5 the Assistant Surgeon attached to the Government Hospital, Ootacamund. In pursuance of the requisition Ex.P-2 received from P. W.20, conducted autopsy over the dead body of D-1 at about 11 a.m. and he found the following injuries: [After setting out the injuries His Lordship proceeded:] Ex.P-3 is the post-mortem certificate issued by him. According to him, the deceased would appear to have died of shock due to injury to vital organs. He was of the opinion that the cut as well as the tab injuries could have been caused due to the attack with a weapon like M.Os.1 to 3. According to him, the deceased would appear to have died of shock due to injury to vital organs. He was of the opinion that the cut as well as the tab injuries could have been caused due to the attack with a weapon like M.Os.1 to 3. The fractures and also injuries containing blood clot could have been caused by beating with a stick and the deceased could have died about 18 hours after the post-mortem examination. P.W.6, the Medical Officer attached to the Government Hospital, Ooty conducted the autospy over the dead body of D-2 (Ochappan) on 26.2.1988 at 10.05 p.m. In pursuance of the requisition received from P.W.20 he found on him the following injuries: Details of injuries omitted. He was of the opinion that the deceased would appear to have died of extensive injuries to vital organs viz., laceration in left lobes of the brain. Ex.P-5, is the post-mortem certificate issued by him. He was of the further opinion that the stab injuries could have been caused due to the stab by a weapon like M.O.1. The fracture of the bone on the brain could have been caused by beating with the sticks. On account of the fracture of the bones the possibility of the blood clots also was there. P.W.7, is the police photographer attached to Nilgiris police station. On requisition from the Inspector of Police, P.W.20, he took photos of the scene place on 25.2.1988 at 6.30 p.m. M.Os.11 to 15 are the photos and M.Os.16 to 20 are the negatives. M.O.21 is the negative of the photo of D-2. P.W.10 is the Medical Officer attached to the Government Hospital, Ooty. It is his evidence that at about 1 p.m. P.W.1. reported to him that he was attacked by twenty persons by sticks, knief and aruvals on the same day at about 10.30 A.M. near sheep farm. He examined P.W.1. and found on him the following injuries: [Details of injuries omitted-Ed.] 4. When the accused were examined under Sec.313, Crl.P.C., with regard to the incriminating circumstances appearing against them in the prosecution evidence they denied the prosecution case as false. 5. He examined P.W.1. and found on him the following injuries: [Details of injuries omitted-Ed.] 4. When the accused were examined under Sec.313, Crl.P.C., with regard to the incriminating circumstances appearing against them in the prosecution evidence they denied the prosecution case as false. 5. The learned trial Judge, after taking into consideration the oral and documentary evidence, for the reasons stated in his judgment, came to the conclusion that the prosecution has proved the guilt of these appellants and consequently convicted and sentenced them as stated in the opening paragraph of this judgement, while acquitting the rest of the accused. Hence the reference as well as the appeal by the convicted accused. [After setting out the contentions of the learned counsel for the appellants and that of the learned Public Prosecutor, His Lordship proceeded - Ed.] 6. The points that arise for consideration in these appeals are; 1. Whether the prosecution has proved the guilt of the appellants beyond all reasonable doubt and if so what is the nature of the offence committed by the accused. 2. Whether the death sentence awarded to the appellants is sustainable and what are the proper sentence to be awarded in case the accused are found guilty. 7. We have elaborately dealt the facts of the case in the narration part of the judgment and also the respective contentions. Now, we have to consider the respective contentions raised in this appeal in seriatim. 8. As regards the motive aspect is concerned, it is the case of the prosecution that P.Ws.1 and 2, the deceased and the accused are distilling arrack and are doing business in illicit arrack. The accused were doing the said business within the limits of Sholur and the adjoining area while P.Ws.1 and 2 and the deceased were carrying on the said business in a different area viz., Timmanathu. Since they were not able to carry on the business in a profitable manner and the business was not thriving, they began to start the business adjoining Sholur area. The accused, who were carrying on the business solely. They (P.Ws) did not agree. When they asked for permission, the accused and their people quarrelled with the deceased and P.W.1 beat him and drove them away. The accused, who were carrying on the business solely. They (P.Ws) did not agree. When they asked for permission, the accused and their people quarrelled with the deceased and P.W.1 beat him and drove them away. On account of the same, about four days prior to the occurrence, the deceased 1 and 2, P.W.1, Pandy and others went to the place where the accused were carrying on the manufacture of the illicit arrack and on being shown by P.W.4 they demolished the oven put up for the manufacture of arrack and also destroyed the fermented wash. Thereupon A-1 sent word to the deceased and P.Ws.1 and 2 that there need not be any quarrel between them and the matter can be settled between them by negotiation and asked them to meet A-1. Accordingly, P.Ws.1 and 2 and D-1 and D-2 went to the house of A-4 at Ootacamund and it is stated that from there they were taken by a taxi which was brought at the distance of A-4 and driven by P.W.4 to the scene place and where the other accused joined and obstructed and attacked the deceased and it is stated before ever the car was stopped, A-1, on pointing out D-1, D-2, P.W.1 and P.W.2 said as to how they were so dare enough to demolish their utensils and the oven for the manufacture of the arrack and also destroyed the wash while A-5 and A-6 shouted that the accused should be taught a lesson. It was only a little later the car was stopped and the other accused joined and all of them surrounded and attacked. This is said to be motive for the occurrence. This has been spoken to by P.Ws.1 and 2 and also P.W.4 and it is also established by Ex.D-1 which was filed by the accused wherein A-1 preferred a complaint to the effect that he was associated by P.W.1., D-1 and D-2, and others beat with a stick and caused the bleeding injuries on the head, hands and cheek on 20.2.1988 morning and a case has been registered in Cr.No.26/ 88 under Secs.147 and 324, I.P.C and that A-1 was sent for treatment and certificate etc., wherein also it is stated that while A-1 was beaten the accused therein were uttering words to the effect that A-1 was giving trouble often for their carrying on business. The prosecution, relying on the said statement, submitted that the business referred to therein was only arrack business and Ex.D-1 probabilises the version of the prosecution witnesses that on account of the rivalry in carrying on the arrack business and in view of the fact that the deceased and P.Ws.1 and 2 attacked A-1 four days prior to the occurrences and they also demolished the utensils for manufacturing arrack and destroyed the wash under the pretext of compromise the deceased and P.W.1 were taken and they were attacked and that there is sufficient motive for the accused for the commission of the offences and it is a deliberate and planned attack in view of the enmity. This has been established by the very defence exhibit as well as the evidence of P.Ws.1 to 4. Learned counsel for the appellant vehemently argued that A-10, the forest coupe contractor and A-4 is also having a jewellery shop and it is highly improbable that they are doing illicit arrack business. On account of the same there was enmity between the two parties. The mere fact that they were having business, it does not mean that they are also doing illicit arrack business as it is stated that A-1 and A-4 are baron in that area and they were doing arrack business in a large scale A-2 and A-3 are sons of A-1. There is absolutely nothing to disbelieve the evidence of P.Ws. in this regard. Learned counsel would submit that there is no documentary evidence to establish that they were carrying on distillation in arrack. We cannot accept any documentary evidence as it is stated that they are influential persons and they have got all influences with the local police officials and in the circumstances, the absence of any documents in the form of F.I.R. and the case records would not in any way affect the case of the prosecution or the evidence of P.Ws. in support of the same. Hence we have no hesitation in holding that the prosecution has succeeded in establishing the motive for the crime on the part of these accused A-1 to A-4 while he other accused are their close associates and friends and relations. 9. in support of the same. Hence we have no hesitation in holding that the prosecution has succeeded in establishing the motive for the crime on the part of these accused A-1 to A-4 while he other accused are their close associates and friends and relations. 9. Next it was vehemently argued by learned counsel for the appellants that in this case Ex.P-1 is not the F.I.R. but only Ex.P-33, G.D. entry made on the basis of a phone message received by the Head-Constable P.W.16. It is the evidence of P.W.16 that on 25.2.1988 at about 12.45 p.m. he got a telephone message that on the way leading to Sholur fight is going on. He entered the same in the G.D. thereupon informed the same through phone to the Sub Inspector of Police and the Sub Inspector returned at 1.15 p.m. to the station and he sent two constables along with a Headconstable to the scene place to find out as to what happened. Since the person who gave the message through phone refused to divulge his name and also the particulars of the assailants, he went to the scene place and he found a person viz., D-2 lying with cut injuries in a dying condition and he sent him to the hospital along with the constable, and at about 6 p.m. he noticed the dead body of another person and in the meantime at about 6.15 p.m. The Inspector came up with a petromax light and he took up investigation. P.Ws.2 and 3 identified the dead person as Nallamayan. In the meantime the Sub Inspector P.W.19, after deputing the Headconstable and constables to go to the scene place, went to the Government Hospital, the learnt that the injured P.W.1 was taken for operation and he waited there from 1.30 p.m. to 4.25 p.m. After the operation was over, P.W.1 was brought outside and thereupon he examined P.W.1 and recorded his statement Ex.D-1 and he returned to the Police Station at 5.30 p.m. and registered a case in Cr.No.30/88. After informing the Inspector, he, on learning that one of the injured person was also taken to the Hospital, went to the Government Hospital and took up investigation. After informing the Inspector, he, on learning that one of the injured person was also taken to the Hospital, went to the Government Hospital and took up investigation. In this connection, it is submitted that though the telephonic message was received in respect of some fight between the two groups by some unknown persons whose identity was not revealed, the Headconstable only entered the same in the G.D., which is marked as Ex.P-33 and subsequently after the Sub Inspector came to the station he deputed the Headconstable and two constables to go to the place where the alleged fighting was going on and he went to the hospital where the injured P.W.1 has gone in order to examine him and record his statement and since he was taken for operation he waited and recorded his statement which contained all the details of the occurrence including the assailants and all particulars and that is the F.I.R. in this case as on the basis of Ex.P-1 a case has been registered. The question to be considered is, whether Ex.P-33 is the F.I.R. According to learned counsel for the appellants, Ex.P-33 wherein it is stated that the fight has been going on between the two groups, and that itself is suffiocient for constituting a first information report under Sec.154, Crl.P.C., per contra, learned Additional Public Prosecutor submits that when the identity of the persons who gave the information is not known when the assailants particulars are not given and when the details of the incident are not given, the mere fact that some unknown persons informed through phone that some fight is going on between two groups, that cannot be treated as a first information report and the subsequent report, which has been taken from the eyewitness which contained all the details alone would constitute a first information report. In this connection, our attention was drewn to the various decisions of the Apex Court and this Court. They are: (1) Tapinder Singh v. State of Punjab Tapinder Singh v. State of Punjab, A.I.R. 1970 S.C. 1566whereinit is observed as follows: “The telephone message was received by Hari Singh, A.S.I., Police station, City Kotwali at 5.35 p.m. on September 8,1969. In this connection, our attention was drewn to the various decisions of the Apex Court and this Court. They are: (1) Tapinder Singh v. State of Punjab Tapinder Singh v. State of Punjab, A.I.R. 1970 S.C. 1566whereinit is observed as follows: “The telephone message was received by Hari Singh, A.S.I., Police station, City Kotwali at 5.35 p.m. on September 8,1969. The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This was, of course, recorded in the daily diary of the police station by the Police Officer responding to the telephone call. But prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this information was the first in point of time does not itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant facts and circumstances of each case”. (2) Soma Bai v. State of Gujarat Soma Bai v. State of Gujarat, A.I.R. 1975 S.C. 1453: 1975 S.C.C. (Crl.) 515: 1975 Crl.L.J. 1201 wherein it is held as follows: “It is true that under Sec.154 of the Code of Criminal Procedure the first information is the earliest report made to the police officer with a viewto his taking action in the matter. In the instant case, the complaint had made the report regarding the occurrence having iSken place to the P.S.I. Patel, who however, before reducing it into writing, by way of abundant caution, tried to seek further instructions from the main police station at Surat and that is why he had booked a call to Surat. The message given to the Surat police station was too cryptic to constitute a First Information Report within the meaning of Sec.154 of the Code and was meant to be only for the purpose of getting further instructions. Further more, the facts narrated to the P.S.I. Patel which were reduced into writing a few minutes later undoubtedly constituted the First Information Report in point of time made to the police in which necessary facts were given. Further more, the facts narrated to the P.S.I. Patel which were reduced into writing a few minutes later undoubtedly constituted the First Information Report in point of time made to the police in which necessary facts were given. In these circumstances therefore, we are clearly of the opinion that the telephonic message to the police station at Surat cannot constitute the first information report and the High Court was in error in treating the first information report lodged in the present case as inadmissible in evidence”. (3) Siddappa v. State of Karnataka Siddappa v. State of Karnataka , 1980 MLJ. (Crl.) 553 in which the above decision viz., Soma Bai v. State of Gujarat viz., Soma Bai v. State of Gujarat, A.I.R. 1975 S.C. 1453: 1975 S.C.C. (Crl.) 515: 1975 Crl.L.J. 1201 has been followed and observed on the same lines. (4) State of U.P. v. P.A.Madhu State of U.P. v. P.A.Madhu, A.I.R. 1984 S.C. 1523: 1984 Crl.L.J. 1438: (1984)4 S.C.C. 83 , which is to the same effect as observed in Tapinder Singh v. State of Punjab Tapinder Singh v. State of Punjab, A.I.R. 1970 S.C. 1566 referred to above at pages 38to 40 of this judgement. (5) Marudha Pandiyan v. State Marudha Pandiyan v. State, 1993 Crl.L.J. 1594 wherein it is observed thus: “As we have already observed, though the said phone message referred to in the General Diary relates to the one conveyed by Dhanapal and transpired through phone by a third person, since it was found cryptic and it required further verification, it would not attract Sec.154 of the Crl.P.C. Even otherwise assuming for arguments sake that it attracts Sec.154, Crl.P.C. we are not inclined to accept the entry made by the police constable of the particular police station, within one hour from the occurrence amounting to an F.I.R. and Ex.P-1 comes under the purview of Sec.154 of the Crl.P.C. Since the subsequent documents relied on by the prosecution render full corroboration to the prosecution case in establishing the guilt and complicity of the appellant herein and that therefore without subscribing our view to the arguments advanced by the learned Senior counsel we have to hold that the said argument is unsustainable”. (6) Raj Mandal Thakur v. State of Bihar Raj Mandal Thakur v. State of Bihar, 1993 Crl.L.J. 1090 wherein it is observed as under: “Mere information without description cannot be treated to be a first information report because F.I.R. at least should suggest come description to treat it as such. In the instant case an information was given that a murder had taken place in the village in question but in that report neither any indication was given as to who was murdered, nor any other fact/circumstances leading to that murder was given. Therefore, it was just an information and as such, it cannot be treated as F.I.R”. Applying the ratio laid down in the above decisions rendered by the Apex Court, this Court and other courts, we have no hesitation in holding that the entry made in the General Diary in Ex.P-33 on the basis of the information furnished by a person whose identity was not disclosed and the said information is cryptic and it does not contain any particulars with regard to the actual occurrence as well as the assailants and especially in view of the fact that Ex.P-1 was obtained subsequently from P.W.1, who is an injured witness which contains all the details and on the basis of which the case has been registered and investigated, certainly Ex.P-1 alone can be treated as the F.I.R. and Ex.P-33 cannot be treated as the F.I.R. and this contention fails. 10. Next it was contended by learned counsel for the appellants that there is a delay of merely seven hours in launching the F.I.R. and that delay is fatal. According to learned counsel the occurrences took place at about 10.30 a.m. and that Ex.P-1 was given at 4.25 p.m. and a case was registered at 5.30 p.m. and the Magistrate received the same at 9.30 p.m. and the delay is inordinate and unexplained and as such it is fatal to the case of the prosecution. But, it is seen fromEx.P-1 that P.W.1. himself has stated that after he was assaulted he fell down unconscious and he came by walk upto Sholur junction and thereupon he got a bus and came to the Government Hospital. But, it is seen fromEx.P-1 that P.W.1. himself has stated that after he was assaulted he fell down unconscious and he came by walk upto Sholur junction and thereupon he got a bus and came to the Government Hospital. In evidence also he would state that after the accused left the scene place after ten minutes when he raised and saw D-2 lying unconscious and D-1 died and he got down from a bus and came to the Government Hospital, Ootacamund at 12.30 p.m. and at 1.45 p.m. the Sub Inspector examined him. P.W.19 Sub Inspector would state that he left B-1 police station to Ootaccamund police station and he was at the hospital from 1.30 to 4.25 p.m. since P.W.1 was taken for operation and he could not see him. After the operation was over only he came out, and he examined him and obtained a statement. P.W.10, is the Medical Officer attached to the Government Hospital and it is his evidence that he examined P.W.1 at about 1 p.m. for certain injuries said to have been caused at about 10.30 a.m. On the same day due to attack with a stick and a knife by about 20 persons and he found on P.W.1 about ten injuries and he issued the wound certificates, Exs.P-16 and P-17 and he gave intimation Ex.P-18 to the police. It is the further evidence that P.W.5 operated P.W.1. This clearly shows that though P.W.19 went to the hospital to record the statement he could not record the same till about 4.25 p.m. since P.W.1 was taken to the operation theatre and on his being brought back from the operation theatre he was examined and a statement was recorded and he (P.W.19) returned to the police station and registered a case at 5.30 p.m. To this effect P.W.19 in his evidence also has stated. Learned counsel for the appellants contended that on the was to the hospital P.W.1 could have reported the matter to the police station since the police station is located on the way. Learned counsel for the appellants contended that on the was to the hospital P.W.1 could have reported the matter to the police station since the police station is located on the way. In this connection it has been brought to the notice of this Court by learned Additional Public Prosecutor that P.W.1 sustained grievous injuries and he got into the bus to go to the hospital in order to take treatment to the injuries and in the circumstances it is too much to expect from his to go and report to the police station and then to give a report and in any way the failure to give a report before ever going to the hospital would not affect his testimony and further that cannot be a ground to hold that the failure to report would affect the case of the prosecution. Learned counsel for the appellants relying on the one answer elicited in cross-examination of P.W.10 wherein it was elicited that from 1.30 to 4.30 p.m. he was in general ward and he does not know as to who else came and saw him. Therefore, the version of P.W.1 that he was taken to the operation theatre and could not be examined by P.W.19 cannot be correct. We do not find any merit in the said contention. The mere fact that P.W.1. was admitted in the general ward does not mean that he was not operated. That he was taken for operation for surgery has been clearly spoken to by P.W.10 and he had stated that it was P.W.5, who has conducted the operation on that day and that has not been challenged in the cross-examination of P.W.10 as well as that of P.W.19. Thus, it cannot be said that the delay in this case is inordinate and has not been explained and on the other hand, there is no delay at all and the delay has occurred in the normal course of events and that has been properly explained. Even otherwise learned Additional Public Prosecutor drew our attention to the various decisions and submitted that the delay in launching the F.I.R. itself will not affect the case of the prosecution, and the evidence adduced is satisfactory and acceptable. Even otherwise learned Additional Public Prosecutor drew our attention to the various decisions and submitted that the delay in launching the F.I.R. itself will not affect the case of the prosecution, and the evidence adduced is satisfactory and acceptable. In this connection, our attention was drawn to the following decisions: (1) Sakthu v. State of U.P. Sakthu v. State of U.P., A.I.R. 1973 S.C. 760: 1973 Crl.L.J. 599: (1973)1 S.C.C. 202 : 1973 S .C.C. (Crl.) 367wherein it is held as follows: “It was urged by the learned counsel that the first information report was lodged after some delay and therefore there was opportunity for manipulation. We are not disposed to agree that there was any delay in lodging the F.I.R. The police station where the complaint was lodged is six miles away from the scene of occurrence. The occurrence took place at about 1 a.m. on the 26th and the complaint was lodged at about 10 a.m. Jwala Prasad bore no illwill or enmity to the appellants and therefore there was no question of his delaying deliberately the filing of the F.I.R. so as to involve the appellants falsely”. (2) Sarafat Ali v. State of Assam Sarafat Ali v. State of Assam, 1993 Crl.L.J. 1943 where it is observed thus: “It is thus clear that the fact that there was a delay in recording the first information or preparing the first information report, that the earliest version is not before the court are, by themselves, not sufficient to reject prosecution evidence of throw out the prosecution case. The court must take due note of this infirmity bearing in mind that the recorded first information might therefore contain an exaggeration or concoction and look for explanation which may be offered by the prosecution. These features put the court on its guard to look for the possible motive and explanation and consider its effect on the trustworthiness or otherwise of the prosecution version”. We have already found that there is no delay at all in his case. Further ratio laid down in the above decisions also supports the case of the prosecution. These features put the court on its guard to look for the possible motive and explanation and consider its effect on the trustworthiness or otherwise of the prosecution version”. We have already found that there is no delay at all in his case. Further ratio laid down in the above decisions also supports the case of the prosecution. Learned counsel for the appellant relied on the decision of the Apex Court in Dharam Singh v. State of Punjab Dharam Singh v. State of Punjab, A.I.R. 1993 S.C. 319wherein it is observed thus: “Penal Code (45 of 1860), Sec.300 - Murder -Concocted F.I.R. giving inminute details, attributing each and every injury to several accused -Prior enmity of accused with deceased and witnesses, duly established - Identical contradictions and omissions in deposition of witnesses - Presence of accused at place of incident highly doubtful -False implication adversely affecting veracity of interested witness - Several improbabilities in prosecution version - Accused acquitted.” This decision is not helpful to this case as that is not in respect of a delay in launching the F.I.R. but that is in respect of a concocted F.I.R. giving in minute details, attributing each and every injury to several accused and further it was established that the prior enmity of accused, deceased and witnesses were duly established, and on facts it was found that the presence of the accused was highly doubtful and false implication adversely affecting veracity of interested witness. Besides, there were several improbabilities in the version of the prosecution. It was only on that ground held that it is not safe to place reliance on the evidence of witnesses. Prima facie we do not find any justification to reject Ex.P-1 on any of those grounds. However, this question can be considered while appreciating the evidence adduced in this case, but, it is not relevant so far as the delay is concerned. Hence, on a careful consideration of the above materials we are of the view that the said contention also fails. 11. Next we have to consider the evidence adduced with regard to the actual circumstances on behalf of the prosecution. The prosecution relied on the evidence of P.Ws.1 to 4 and medical testimony of the doctors, who examined the injured witnesses, deceased and also who conducted autopsy viz., P.Ws.5, 6 and 10: After discussing the evidence His Lordship proceeded. 11. Next we have to consider the evidence adduced with regard to the actual circumstances on behalf of the prosecution. The prosecution relied on the evidence of P.Ws.1 to 4 and medical testimony of the doctors, who examined the injured witnesses, deceased and also who conducted autopsy viz., P.Ws.5, 6 and 10: After discussing the evidence His Lordship proceeded. [After discussing the evidence His Lordship proceeded-Ed.] In this case, even eschewing the evidence of recovery, yet, we have got the other acceptable evidence on the side of the prosecution with regard to the actual occurrence and the weapon of offence which has both oral and the medical testimony and the absence of blood would not in any way affect the case of the prosecution and as rightly pointed out by him, it can be even relied on under Sec.8 of the Evidence Act. 12. Next we have to see how far the various convictions awarded to these appellants can be sustained. First we have to consider the offence of the charge of criminal conspiracy. 13. Admittedly there is no direct evidence with regard to the alleged criminal conspiracy with regard to the offences in question. The prosecution relied on certain circumstances in this case to prove the charge of conpiracy. It is stated that D-1 and D-2, and P.W.2 were asked to come to the house of A4 for setting their disputes and effecting a compromise and while they were in the house of A-4, A-5 and A-6 were already there. A-4 would state that they would go to Sholur to the house of A-4 and that he would tell A-1 that there should not be any quarrel between them. At that time A-5 and A-6 used to go out and come back into the house often. Thereupon a taxi has brought at the instance of A-4 in which they all boarded. P.W.2 did not get into the house but he was standing out side the house and he did not know as to what transpired inside the house but he would state that A-4 to A-6 came to the house of A-4 and at that time P.W.4s taxi came in which they boarded. Therefore, his evidence is not of any avail for the conspiracy. Therefore, his evidence is not of any avail for the conspiracy. Even in respect of the evidence of P.W.1., the mere fact that A-4 and A-6 went outside the house and then came back, that itself would not establish that there was a criminal conspiracy to do away with these appellant or to commit any offence as alleged. Even the learned trial judge also had rightly observed to that effect. Next the circumstance relied on by the prosecution was the evidence of P.W.3. According to P.W.3, he is a resident of Sholur and his house is about a furlong away from the houses of A-1 to A-4, A8 to A-10, A-13 and A-14 and wherein they are running their arrack shop and on the day of the occurrence he went to the tea shop which is about two furlongs from his house to take tea. At that time he saw the taxi coming and stopping at the bus stand, from which A-7 to A-9 got down.A-9 told A-7 that A-1 and his men have to be taken to the place mentioned by A-4 and asked him to come quickly. He came to his house thinking that they are going to create trouble with his uncle. At that time he noticed A-1 and A-3 armed with an aruval, A-14 with an iron pipe along with A-7 to A-10 and four or five others, who were armed with sticks, were proceedings and he followed them and they were hiding in a bush and he also hid himself about 150 feet behind the bush and at that time a taxi came from Ooty and they obstructed the taxi. A-4 got down from the taxi and shouted to pull down the persons inside the taxi and kill them and thereafter the attack on them took place. When he was confronted in the cross-examination that he was unable to give the particulars of the car or the driver of the car and he would also fairly admit that for every hour a route bus used to ply in that route. He did not go and inform the police even though he thought that A-9 and A-7 were going to attack his uncle. He fairly admitted that he did not tell in his statement that except the accused the others were having in their cycles the knife and sticks. He did not go and inform the police even though he thought that A-9 and A-7 were going to attack his uncle. He fairly admitted that he did not tell in his statement that except the accused the others were having in their cycles the knife and sticks. He fairly admitted that he and his uncle and the deceased were doing arrack business and he was inimically disposed towards A-1 for about six months prior to the occurrence. From the various answers elicited in cross-examination and from the evidence of this witness, it cannot be said that there was any criminal conspiracy to commit the alleged offence between the accused and further no reliance could be placed on the evidence of P.W.3, who is interested and who is inimically disposed towards A-1, admittedly and who was also dealing with the illicit arrack business. The other evidence relied on by the prosecution was the taxi driver, P.W.4, who would state that while they were travelling in the taxi A-4 questioned D-2 as to how dare he was to demolish their oven as well as the boiler. At that time A-5 and A-6 were telling that they are going to teach them a lesson. The taxi proceeded to a certain distance. Thereafter the taxi was obstructed by 10 or 15 persons and A-4 got down and shouted to ask these persons to get down from the taxi and kill them. His evidence will not in any way prove the conspiracy to commit the alleged offence among A-1 to A-14. It is in evidence that A-1, A-2 and A-4 are the partners of the arrack shop and they are the main persons and A-1 was the person aggrieved by the demolition of the event as well as the fermentad wash etc., and also that in respect of the incident in which he was attacked by D-1, D-2 and P.W.1 and in respect of which he gave complaint (marked as Ex.D-1) which is not disputed even by the accused but, it is only A-4 who asked them to come to his house and it is only at the instance of A-4 the taxi was brought and they were taken to the house of A-1 and only oh the way the occurrence took place. From that it can be inferred that it would have been happened only in pursuance of the conspiracy among the accused, when these are no circumstances, either direct or indirect evidence to substantiate the same. Even for the occurrence also there is no acceptable evidence that all the accused participated except some of them viz., A-1 to A-4, A-9 and A-14, which we will deal with later. In this connection, the decisions relied on by learned Additional Public Prosecutor are not at all helpful to the case of the prosecution in this case. In R.K.Dalmia v. Delhi Administration R.K.Dalmia v. Delhi Administration, A.I.R. 1962 S.C. 1821it is observed that it is not necessary that each number of the conspiracy must know all the details of the conspiracy. It was observed thus: “Gurha, among the accused, must have been chosen for the purpose of the conspiracy because he had connection both with the Union agencies and with Asia Udyog Ltd. He had been in the company of a Dalmia concern from long before. He was the Accountant of the Dalmia Cement and Paper Marketing Company from 1948 till its liquidation in 1953. Gurha, as Director of the Union Agencies, knew that it had suffered losses as a result of share-speculation business in 1954-55 and that the Delhi Office was short of liquid funds to meet those losses. He must have known how the funds to meet the losses were being secured from the funds of the Insurance Company through Bhagwai Trading Company. He must have also known that this was wrong. It is only with such knowledge that he could have been a party to the making of false advices and vouchers. There could be no other reason. It could not have been possible for the prosecution to lead direct evidence about Gurhas knowledge with respect to the full working of the scheme to provide for the losses of the Union Agencies from the funds of the Insurance Company. It is further not necessary that each member of a conspiracy must know all the details of the conspiracy”. It could not have been possible for the prosecution to lead direct evidence about Gurhas knowledge with respect to the full working of the scheme to provide for the losses of the Union Agencies from the funds of the Insurance Company. It is further not necessary that each member of a conspiracy must know all the details of the conspiracy”. In state of H.P. v. Krishan Lal state of H.P. v. Krishan Lal, A.I.R.1987 S.C.773 itis held as follows: “The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences” First to all, it must be established that there must be a meeting of minds for agreeing to do the illegal act and only if the agreement is established then only the question of participation or non-participation arises. But, in this case there is absolutely no evidence with regard to the alleged entering into the agreement to do the illegal act by these accused/Hence that decision also is not helpful to the present case. It is to be noted that the gist of the offence of criminal conspiracy is an agreement to commit the offence. Then only the question of criminal conspiracy under Sec.l20-B, I.P.C arises. But, in the instant case, absolutely there is nothing to infer that there was any meeting of mind of the accused. Hence on a careful consideration of the entire materials this Court is of the view that the prosecution has not established the alleged criminal conspiracy to murder D-1 and D-2 on the ground that the property of A-1 and A-4 were damaged by them and in pursuance of the Criminal Conspiracy they formed themselves into an unlawful assembly and armed with deadly weapons, at about 10-30 a.m. at the scene place, and their conviction under this charge is not sustainable. 14. 14. Now, as regards the actual occurrence, it is seen from the evidence of P.Ws.1 to 3 that it was only A-4, who asked D-1, D-2, P.W.1 and P.W.2 to come to the house under the pretext of settling their dispute and thereafter he sent for the taxi of P.W.4 and in which the deceased 1 and 2 and P.Ws.1 and 2 and A-5 and A-6 were also taken and on the way just before reaching the place of occurrence questioned the deceased as to how dare they are to demolish their oven and utensils which were kept for manufacturing arrack and damage them and it is said that A-5 and A-6 also joined with him and a lesson has to be taught to them. Beyond them A-5 and A-6 did not do anything. When they reached the junction near the scene place at the road but it is stated that the car stopped and in the crowd A-1, his son A-2, A-3 and others viz., A-7 to A-9 and A-14 and others were there and according to the evidence of these witness it is uniformly stated that A-1 cut D-1 on the head with an aruval, Mo 1 and again on the forehead. A-2 cut D-1 on heels of both the legs. A-14 beat him with an iron pipe on the right shoulder. It is generally stated that the rest of the accused beat D-1. P.W.3 would state that A-4 and two or three persons beat with sticks and D-1 fell down and before stopping, all the witnesses, P.Ws.1 to 3 uniformly stated that A-4 instigated the accused to pull them from the car and kill them. It is only thereafter they began to attack and he too joined. As regards D-2, A-1 cut him on the head, A-14 beat on the head and the left shoulder with iron pipe. P.Ws.1 and 2 would state that the rest beat with sticks while P.W.3 alone would state that A-7 and A-10 beat with sticks. But, there is only one injury on the hip of the deceased. P.W.1 was attacked by A-1 who cut him on the right hand and again on the head and again A-9 beat P.W.1. with a stick on the head. Thereafter, it is generally stated that P.W.1., D-1 and D-2 were dragged and thrown into the forest, P.Ws. But, there is only one injury on the hip of the deceased. P.W.1 was attacked by A-1 who cut him on the right hand and again on the head and again A-9 beat P.W.1. with a stick on the head. Thereafter, it is generally stated that P.W.1., D-1 and D-2 were dragged and thrown into the forest, P.Ws. 4 to 6 after turning the taxi got into the taxi along with A-1 went to Ooty side in the taxi. The rest of the accused also ran away. From the medical evidence and oral evidence in this case it is clearly established that the inhuries inflicted by A-1 and the weapon used by him clearly establish that he has inflicted the fatal injuries to both the deceased and as such he is liable for the offence under Sec.302, I.P.C. Hence his conviction under Sec.302 (two counts) in respect of the two deceased are confirmed. As regards A-2, he inflicted the fatal injuries so far as D-1 is concerned. He is liable for convinction under Sec.302, I.P.C. and in respect of murder of D-2 since he shared the common intention to murder D-2 along with other accused, he is liable for conviction under Sec.302 read with Sec.149, I.P.C. As such his conviction is confirmed under Sec.302 read with Sec.149, I.P.C. in respect of D-2. Now, as regards A-3, he cut P.W.1 on the right hand with an aruval and caused fracture as is evidenced by the Medical Officer, P.W.10 and hence he is liable for conviction under Sec.326, I.P.C, and his conviction under Sec.326, I.P.C. is confirmed. So far as A-4 is concerned, it is in evidence that A-1 and A-4 are partners in the arrack shop and D-1, D-2and P.Ws.1 and 2 demolished their oven and other utensils about a few days prior to the occurrence and also attacked A-1 and a complaint was given and in respect of the same case has been launched against them as is evidenced by Ex. D.1 and it is only under the pretext of settling the dispute he asked D-2 and P.Ws.1 and 2 to come to his house at Ooty from there he took them in a taxi driven by P.W.4 brought by him and on the way he questioned the deceased as to how dare they were to demolish their oven and utensils and other materials are caused damaged and further when the car was stopped by A-1 and A-4 he immediately asked the other accused to pull down and got down and kill them. He also joined in the attack of these D-1 and D-2 and P.W.1 it is the evidence of P.W.3 that he and two others beat D-1 with a stick and it is only thereafter D-1 fell down. In the circumstances, after the occurrence he along with A-1 and two other accused went in the same taxi to Ooty. This circumstance would clearly establish that is only that he is responsible for the death of both the deceased as rightly pointed out by learned trial judge and it is clearly established that he has shared the common intention to murder both the deceased by actively participating and as such his conviction under Sec.302 read with Sec.149, I.P.C. (two counts) in respect of both the deceased are confirmed. 15. Next comes A-9 who was found guilty for having beaten P.W.1. with a stick on the head and caused simple injury as is evidenced by the doctor P.W.10 and he is liable for conviction under Sec.324, I.P.C. Accordingly, he is convicted. Lastly, so far as A-14 is concerned, he joined with A-1, A-2 and A-4 in attacking D-1 and D-2 and he beat D-1 with an iron pipe on the right shoulder and after D-1 fell down he again attacked D-2 and beat him on the injuries and it is the medical evidence that the injuries inflicted by the accused are also responsible for the death of both the deceased. In the circumstances and in view of the evidence of P.Ws.1 to 3, who are the eye-witnesses, he is liable for the offence under Sec.302 read with Sec.149, I.P.C. in respect of this offence viz.,Sec.302 read with Sec.149, I.P.C. are confirmed. 16. In the circumstances and in view of the evidence of P.Ws.1 to 3, who are the eye-witnesses, he is liable for the offence under Sec.302 read with Sec.149, I.P.C. in respect of this offence viz.,Sec.302 read with Sec.149, I.P.C. are confirmed. 16. Now, as regards the other accused and as well as other charges, this Court finds that there is no acceptable evidence to prove the charges against them beyond all reasonable doubt. The mere fact that some of the accused viz., A-5 and A-6 came in the taxi and said that the deceased should be taught a lesson but subsequently there is no evidence that they also took part and attacked the deceased or P.Ws.1 and 2, they cannot be liable for any of the offences. Similarly, except the above accused, which we have already found guilty, it is generally stated that as regards D-1, the rest of the accused beat him with sticks. But, we do not find any corresponding injuries, it is to be noted that in respect of D-2, P.W.3 has stated that A-3 to A-10 beat D-2 on the back. But, we find only one injury on the back and it cannot be said that single injury had been caused by all the three. That is not the evidence of the Medical Officer and that has not also been spoken to by the eye witnesses P.Ws.1 and 2.P.W.1 categorically stated that he knew only some accused but does not know the names or fathers name or address of the rest of the accused no identification parade was held. As such, there is no evidence with regard to the acts attributed to any of the accused or their presence. There is absolutely nothing to show that they have got a common intention or that they shared the intention with the other accused to murder D-1 and D-2. We have found that the motive to commit the murder is only for A-1 to A-4 and not for others and they are not in any way connected with the deceased or P.Ws.1 and 2. Even though it is stated that P.W.1., D-1 and D-2 were dragged and thrown into the forest, it is not even stated that any of these accused were dragged and thrown into the forest. Even though it is stated that P.W.1., D-1 and D-2 were dragged and thrown into the forest, it is not even stated that any of these accused were dragged and thrown into the forest. Significantly P.W.3 simply stated that four persons were dragged and thrown, but, he not even mentioned the names of persons any of the accused though he mentioned the names of who attacked P.W.1. as well as D-1 and D-2. We have already found that there is no criminal conspiracy to commit the murder of D-1 and D-2. We have also found that there is no specific overt act to attribute to any of the other accused except them and who were found guilty and there is no acceptable evidence with regard to the persons who were dragged and thrown into the forest and further the medical evidence also does not support that a number of the accused attacked and caused injuries to any of the deceased and P.W.1. In the absence of any material that there is a common intention or that other accused 5 to 8 and 10 also shared the common intention with the council accused to cause the death of D-1 and D-2 and attack P.Ws.1 and 2 and in the absence of any acceptable, evidence for their participation in the crime in question the accused 5 to 8 and 10 cannot be held to be liable for any of the offences for which they were convicted by the learned trial judge and hence they are liable to be acquitted. 17. Now we have to consider whether the extreme penalty awarded to A-1, A-2 and A-4 is warranted in the circumstances of the case. It is seen from the judgment of the trial Judge as regards A-1 is concerned, the only reason is that A-1 was the leader of the group and he murdered D-1 and D-2 in the cruel way. As such he deserves the death sentence. So far as A-2 is concerned, it is stated that when A-1 tried to escape after he was beaten he cut him with a dangerous weapon on the heels of both the legs and thereby causing death sentence. As regards A-4, the only reason alleged by the learned trial judge was that he was responsible for the root-cause for the murder of D-1 and D-2 and hence he deserves to be hanged. 18. As regards A-4, the only reason alleged by the learned trial judge was that he was responsible for the root-cause for the murder of D-1 and D-2 and hence he deserves to be hanged. 18. Now the question to be considered is, whether these are all sufficient grounds for awarding the extreme penalty. In this connection, the attention of this Court was drawn to the various decisions on behalf of both sides: In Bachan Singh v. State of Punjab Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 the Constitution Bench of the Supreme Court consisting of five Judges has observed as follows; “There are numerous other circumstances justifying the passing of the lighter sentence;as there are counterveiling circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Sec.354(3). Judges should never be blood -thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of this sentencing discreation in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous Care and human concern, directed along the highroad of legislative policy outlined in Sec. 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postu-alates resistence to taking a life through laws instrumentality. A real and abiding concern for the dignity of human life postu-alates resistence to taking a life through laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore closed.” In Machchi Singh v. State of Punjab Machchi Singh v. State of Punjab, A.I.R. 1983 S.C. 957 the Apex Court, while considering the earlier Division Bench case in Bachan Singh v. State of Punjab Bachan Singh v. State of Punjab , A.I.R. 1980 S.C. 898 also set out the instances viz., manner of commissionof murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder and after setting out the same, observed as follows: “In this background the guidelines indicated in, A.I.R. 1980 S.C. 898, willhave to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following prosecutions emerge from Bachan Singhs case: “(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the ‘offender; also require to be taken into consideration along with the circumstances of the ‘crime”: (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regards to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercise. (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence. (b) Are the circumstances of the crime such that there is no alternative but to imposed death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence. (b) Are the circumstances of the crime such that there is no alternative but to imposed death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. In order to apply these guidelines inter alia the following questions may be asked and answered; If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answer to the questions posed herein above, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.” In the above quoted decision ‘Magnitude of Crime’ has been defined as follows: When the crime is enormous in proposition, for instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.” 19. Learned Additional Public Prosecutor drew the attention of this Court to certain decisions and submitted that in those cases death sentence has been awarded. In Henry Wes tmulier v. State of Assam Henry Westmulier v. State of Assam, A.I.R. 1985 S. C. 823 it is held thus: “The offence committed by the accused the originator of the idea of kidnapping children of rich people for extracting ransom, are very heinous and pre-planned. In the instant case, the accused had been attempting to extract money from the unfortunate bous father, even after the boy had been murdered by making the father to believe that they boy was alive and would be returned to him if he paid the ransom. This is one of the rarest of the rare cases in which the extreme penalty of death is called for the murder of the innocent young boy, in cold blood after he had been kidnapped with promise to be given sweets. Therefore, the sentence of death awarded by the High Court has to be confirmed, 1983 Crl.L.J. (NOC) 146, (Gau), affirmed.” That was a case of kidnapping. Therefore, the sentence of death awarded by the High Court has to be confirmed, 1983 Crl.L.J. (NOC) 146, (Gau), affirmed.” That was a case of kidnapping. The accused, who has been kidnapping children of rich people extracting ransom, which is considered a heinous and pre-planned crime and while doing so the unfortunate boy has been murdered, but, even after the boy was murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom and also the way in which the murder was committed, it was held as old blooded one and in the circumstances, it was held that the sentence of death awarded has to be confirmed. That decision was rendered on the facts of that case and it cannot help the present case. Similarly, the decision in Kuljeet Singh v. Union of India Kuljeet Singh v. Union of India, A.I.R. 1981 S.C. 1572: (1984)4 S.C.C. 703 was also relied on. It is a much published case of Billa and Ranga, who were themselves two dacoits, committed murder of two young people after hatching a plan that they would offer lift in their car to some young children., try to extort ransom from their parents by kidnapping them and do the children to death in the event of any impediments arising in the execution of their plan and likewise the murder was committed after a savage planning which bore a professional stamp. It was held that there was a planned motivation behind the crime and unfortunately the two children became the victims of the accused. Ultimately it was held that the accused were professional murderers and deserved no sympathy even in terms of the evolving standards of decency of a maturing society. Their inhumanity defied all belief and description. The death sentence imposed upon them was, therefore, upheld. The said case was also rendered on the facts involved in that case, but, that is not the case here, and the ratio laid down is in no way helpful for warranting the imposition of the extreme death penalty in the Instant case. Their inhumanity defied all belief and description. The death sentence imposed upon them was, therefore, upheld. The said case was also rendered on the facts involved in that case, but, that is not the case here, and the ratio laid down is in no way helpful for warranting the imposition of the extreme death penalty in the Instant case. The decision in Kehar Singh v. State (Delhi Administration) Kehar Singh v. State (Delhi Administration), A.I.R. 1983 S.C. 1883 is yet another case where the former Prime Minister, Smt. Indira Gandhi was murdered by Kehar Singh and others and as laid down in Machchi Singh v. State of Punjab Machchi Singh v. State of Punjab , A.I.R. 1983 S.C. 957 as well as Bachan Singh v. State of Punjab Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898if the victim is a public behavedgentlemen, loved and respected by the community for the services rendered by the victim, and a murder was committed for political or other reasons, only death sentence is warranted. In the above quoted case it was held: “It is a gruesome murder committed by the accused who was employed as a security guard to protect the Prime Minister Indira Gandhi. It is one of the rarest of rare cases in which extreme penalty of death is called for”. On a careful consideration of the entire materials involved in this case and in the circumstances in which the murder was committed, it cannot be said that this is one such case whether the rarest of rare case prescribed in, A.I.R. 1980 S.C. 898, is attracted and the sentence of death is called for. On the other hand, this Court feels that on account of the dispute in carrying on the illicit arrack business the accused attacked the deceased and caused injuries and as a result of the same one died on the spot and another died later when he was taken to the hospital and the reasons alleged by the learned trial judge, as already observed, would not warrant death sentence and that they would not constitute the rarest of rare cases so as to attract the extreme penalty of death sentence. Hence we are of the opinion that the proper sentence to be awarded to those appellants who are convicted for the charge of murder would be only the sentence of death awarded by the learned trial judge. 20. In the result, the reference is ordered accordingly. The appeal is partly allowed. The convictions awarded to A-1 under Sec.302, I.P.C. (two counts) are confirmed. But, the sentence of death awarded to him is set aside and instead he is sentenced to undergo imprisonment for life on each count and in addition he should pay a fine of Rs.10,000 under each count, in default to undergo rigorus imprisonment for three years. The convictions of A-2 under Secs.302 and 303 read with Sec.149, I.P.C. are confirmed but, the sentences of death awarded to him are set aside and instead he is sentenced to undergo imprisonment for life under each count and in addition he should pay a fine of Rs.10,000 under each count, in default to undergo rigorous imprisonment for three years. The conviction of A-4 under Sec.302 read with Sec.149, I.P.C., (two counts) is confirmed but, the sentence of death under each count awarded to him is set aside and instead he is sentenced to undergo imprisonment for life and in addition he should pay a fine of Rs.10,000 under each count, in default to undergo rigorous imprisonment for three years. The conviction of A-14 under Sec.302 read with the Sec.149, I.P.C., (two counts) and the sentence of imprisonment for life is confirmed. Conviction of A-3 under Sec.326, I.P.C., and sentence to undergo rigorous imprisonment for three years is confirmed. A-9 is convicted under Sec.324, I.P.C., and is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 3,000, in default to undergo rigorous imprisonment for one year. 21. However, the convictions and sentence awarded to A-1, A-2, A-3, A-4, A-9 and A-14 in respect of other offences are hereby set aside and they are acquitted in respect of those offences. 22. The convictions and sentences awarded to A-5 to A-8 and A-10 by the learned Sessions Judge are set aside and they are acquitted and they are set at liberty. 23. The appeal in other respects subject to the modification indicated above is dismissed.