JUDGMENT : - Palok Basu and B. K. Ray, JJ. 1. AGGRIEVED by the judgment and order dated 7.5.1993 passed by II Additional Sessions Judge, Hamirpur in S. T. No. 97 of 1989, the five appellants have preferred this appeal against their convictions under Sections 302/149, I.P.C. and sentences of death thereunder to each one of them and some allied sections of the I.P.C., for confirmation of the death sentences awarded to the five appellants, the trial Judge has made the aforesaid reference. Both the matters were heard together. 2. SRI Vishnu Saran Singh, learned counsel for the appellants have been heard at length in support of this appeal. SRI S. P. Tewari, learned A. G. A. has espoused the cause of the State while SRI G. S. Chaturvedi has been heard on behalf of the informant. The entire record has been perused. The charge against the appellants was that on 14.3.89 at about 6.30 p.m. they formed an unlawful assembly and collected in front of the filed of Chhedi Singh in village Neuria, P. S. Benwar, district Hamirpur, Chandra appellant being armed with Ballam, Laxmi Narain with pharsa, Kamlesh with country made pistol, Dhani Ram with Ballam and Sri Krishna with Pharsa and then committed the murder of Ghasita by causing injuries to him with the respective weapons and when Natthu tried to Intervene he was also chased in the nearby field and beaten to death. Therefore, the appellants were charged under Section 302/149, I.P.C. and Section 148, I.P.C. also. Being satisfied with the evidence produced the learned trial court has convicted and sentenced the appellants under Section 302/149, I.P.C. to death and Section 148, I.P.C. to three years rigorous imprisonment each. 3. IN order to prove the prosecution case two eye-witnesses have been examined and they are P.W. 1 Ram Prakash and P.W. 2 Binda. Five formal witnesses have also been examined. P.W. 3 Dr. B. K. Srivastava conducted the post-mortem examination on the dead-body of Ghasita on 17.3.89 at about 11.00 a.m. and found the following injuries- Injuries 1. Incised wound 22 cm. x 5 cm. on the right side of skull starting from 3 cm. Lateral to right eye extending posteriorly above the right ear upto the joint (plorn) above (paper torn) occiput underneath base is cut, brain matter is coming out 2 Incised wound 7 cm. x 2 cm. Incised wound 22 cm. x 5 cm. on the right side of skull starting from 3 cm. Lateral to right eye extending posteriorly above the right ear upto the joint (plorn) above (paper torn) occiput underneath base is cut, brain matter is coming out 2 Incised wound 7 cm. x 2 cm. on left side of skull, bone deep, underneath bone is cut 2.5 cm. above left ear. 3. Incised wound 18 cm. x 3 cm. starting from back of neck from behind Rt. ear on to the left side of neck and face upto the 5 cm. lateral to left eye. Bone deep C2 Vertebra is cut underneath vessels including carotid ortery of left side is cut underneath mandible and muscle on left side is cut. 4 Firearm wound of entry 1 cm. x 1 cm. Circular in shape margin inverted, blackening of margins present, just below the chin, 5 Fire-arm wound of exit 1.5 cm. x 1.5 cm. on left side of face just above the chin 3 cm. below left lateral angle of mouth margins are averted and irregular. 6. Fire-arm wound of entry in area of 8 cm. x 4 cm. in front Rt. shoulder 4 cm. above Rt. auxiliary fold, 5 in number each of size 1 cm. x 1 cm. margins inverted and blackened. 7. Fire-arm wound of entry 1 cm. x 1 cm. on Rt side of front of chest 1 cm. lateral to Rt nipple margins is inverted and blackening is present. 8. Fire-arm wound of exit. 1.5. cm. x 1.5 cm. on left side of chest 2 cm. below medial and of left clavicle, margins are averted and irregular. 9. Fire-arm wound of exit 1.5 cm. x 1.5 cm. on left side of chest 3 cm. medial to left nipple margins are averted and irregular. 10. Fire-arm wound of exit 2 cm. x 1.5 cm. on left side of chest 6 cm. above left nipple a margins are averted and irregular. 11. Incised wound 9 cm. x 2 cm. on top of Rt shoulder placed horizontally, bone deep. 12. Incised wound 3 cm. x 1.5 cm. on front of Rt side of chest 2.5 cm. below medial end of Rt. clavicle, muscle deep. 13. Incised wound 1.5 cm. x 5 cm. on front of Rt side of chest 1.5 cm. below the Rt. nipple, muscle deep. 14. Abrasion 9 cm. 12. Incised wound 3 cm. x 1.5 cm. on front of Rt side of chest 2.5 cm. below medial end of Rt. clavicle, muscle deep. 13. Incised wound 1.5 cm. x 5 cm. on front of Rt side of chest 1.5 cm. below the Rt. nipple, muscle deep. 14. Abrasion 9 cm. x 2 cm. on top of left shoulder placed horizontally. 15. Fire-arm wound of entry on Rt side of abdomen 1 cm. x 5 cm., 8 cm. lateral to umblicus margins are inverted and blackening present. 16. Fire-arm wound of exit 2 cm. x 1 cm. in the abdomen 5 cm. below the umblicus margins are everted and irregular. 17. Lacerated wound 2 cm. x 0.4 cm. on left side of abdomen 8.5 cm. lateral and below to umblicus muscle deep. 18. Incised wound 7 cm. x 1 cm. on posterior side of left fore-arm 6 cm. below the elbow, muscle deep placed horizontally. 19. Incised wound 2 cm. x 0.5 cm. on the left palm at the base of left thumb, muscle deep. 20. Lacerated wound 1 cm. x 0.5 cm. on dorsum of left Hand on outer side 5 cm. below left wrist joint, muscle deep. 21. Incised wound 2 cm. x 5 cm. on the inner surface of Rt. upper arm muscle deep 12 cm. above Rt. elbowjoint. 22. Incised wound 1.5 cm. x 0.5 cm. on the inner surface of Rt. upper arm muscle deep 10 cm. above, Rt. elbow. 23. Incised wound 5 cm. x 1cm. on back of neck at T-1 level in mid line placed horizontally, muscle deep. 24. Fire-arm wound of Entry 1.5 cm. x 1 cm. on Rt side of back 2 cm. below lower end of Rt. Scapula and 3 cm. lateral to mid-line margins averted and blackening present. 25. Fire-arm wound of entry 5 cm. x 5 cm. on Rt side of back 7 cm. below lower end of Rt. scapula margins inverted, no blackening or tattooing present. 26. Fire-arm wound of entry 0.5 cm. x 05 cm. on Lt. side of back 1 cm. lateral to midline and 9.5 cm. below lower end of Rt. Scapula margin are inverted, no blackening or tattooing present. 27. Lacerated wound 1.5 cm. x 1 cm. on Rt. side of gluted region 5 cm. lateral to end apertens, muscle deep. 28. Fire-arm wound of entry 1 cm. x 1 cm. on Lt. side of back 1 cm. lateral to midline and 9.5 cm. below lower end of Rt. Scapula margin are inverted, no blackening or tattooing present. 27. Lacerated wound 1.5 cm. x 1 cm. on Rt. side of gluted region 5 cm. lateral to end apertens, muscle deep. 28. Fire-arm wound of entry 1 cm. x 1 cm. on left gulted region 15 cm. below iliac crest margins are inverted and blackening is present on the margins. 29. Fire-arm wound of exit 2 cm. x 1 cm. on left gulted region 6 cm. below iliac crest margins are averted and irregular and lacerated. 30. Incised wound 4 cm. x 1.5 cm. on front of left thigh, muscle deep 14 cm. above left knee joint, placed horizontally. 31. Incised wound 12 cm. x 4 cm. on outer surface of left thigh 11 cm. above left knee joint underneath bone is cut, placed horizontally. 32. Abrasion 28 cm. x 2 cm. in down upward direction on outer surface of left leg 5 cm. below left knee joint. 33. Incised wound 8 cm. x 4 cm. on front and outer surface of left leg 3 cm. above left lateral malledus, underneath the injury. 4. P.W. 7 Dr. M. R. Gautam conducted the post-mortem examination on the dead body of Natthu on 16.7.89 at 4.30 p.m. and found the following injuries- Ante-mortem Injuries 1. Rt. forearm transversely cut 15 cm. below the elbow. 2. Incised wounds in the area of 27 cm. x 8 cm. x 13 cm. deep on the back of neck, Rt. side of neck reaching upto Rt. eye cutting cervical 1st; vertebrae and spinal cord Rt. Zygematic bone. 3. Incised wound of 13 cm. x 2 cm. x muscle deep on the Rt. side of lateral part of neck. 7 cm. above the Rt. collar bone. 4 Incised wound of 12 cm. x 5 cm. x bone deep on the Rt. scapula region direction transverse under lying one cut. 5 Incised wound 13 cm. x 4 cm. x 5 cm. deep on the Rt. side of lower part of abdomen. Iliac bone cut direction transverse. 6. Incised wound of 10 cm. x 4 cm. x bone deep on the back of lower part of Rt. leg 25 cm. below the Rt. knee direction transverse. 7. Incised wound 7 cm. x 3 cm. x 4 cm. x 5 cm. deep on the Rt. side of lower part of abdomen. Iliac bone cut direction transverse. 6. Incised wound of 10 cm. x 4 cm. x bone deep on the back of lower part of Rt. leg 25 cm. below the Rt. knee direction transverse. 7. Incised wound 7 cm. x 3 cm. x bone deep on the lower part of lateral side of Rt. leg 6 cm. below the injury No. 6. 8. Abrasion of 3 cm. x 2 cm. size on the Rt. glutial region. 9. Incised wound of 2 cm. x 1 cm. on the left side lower part of abdomen on the lateral side. 10. Abrasion of 15 cm. x 2 cm. size on the left side of waist just above the Iliac crest. 11. Fire-arm wound of entry five in number on the left side of upper part of lateral side of chest. Size of each wound is 1/2 cm. x 1/2 cm. within the area of 10 cm. x 6 cm. 12. Blackening and tattooing present. P.W. 4 Sikander Singh was a Sub-Inspector posted at P. S. Benwar who arrested all the five appellants on 17.3.89 at 5.30 p.m. It is said that Sikander Singh along with constables was going on a jeep from village Sayar to Kamhariya when one of the constables told him that the five persons sitting on the culvert where the accused involved in the case about which the search for the accused was being made. The appellants tried to run away but after giving a chase, all of them were arrested. It is stated that from the possession of Kamlesh a country made pistol and some cartridges were recovered, from the possession of appellants Dhani Ram and Sri Krishna two cloth pieces (Sari) were recovered who were apparently having blood stains. Nothing was recovered from the appellants Chandra and Laxmi Narayan. However, all the appellants said that they would tell the police party as to where they have concealed their weapons of assaults and on having made that statement they took the police party to a well from within which two pharsas and two ballams like spears were recovered. Necessary memorandum regarding the arrest and recovery were prepared. 5. P.W. 5 Sujan Singh Tomar, head constable, had prepared the chick FIR registered the case. Necessary memorandum regarding the arrest and recovery were prepared. 5. P.W. 5 Sujan Singh Tomar, head constable, had prepared the chick FIR registered the case. P.W. 6 Sujan Singh (other than P.W. 5) was the Station Officer Incharge on 14.3.89 in whose presence the FIR was lodged and who had taken up the investigation immediately thereafter. He, after completing the investigation, filed a charge-sheet against the appellants. 6. ACCORDING to the prosecution case on 14.3.89 at about 6.30 p.m. Ghasita, one of the deceased accompanied by his son Natthu, another deceased, and some other relatives had gone to the field to cut the linseed crop. This field belonged to P.W. 2 Binda and, had been taken on batai (crop-share) by Ghasita. On the fateful day at 5.30 p.m. all the five appellants were hiding in the nearby wheat field and when the deceased, after cutting the crop was coming on the bullock-cart which had been taken by P.W. 1 Ram Prakash to the field, all the five appellants attacked. Natthu wanted to Intervene and he was also assaulted. Both the father and son died as a result of injuries sustained at the hands of the appellants. The eye-witness account furnished by P.W. 1 Ram Prakash indicates that he went to the house soon after the incident and got a first information report lodged which was written by friend villager namely Shiv Nandan. Thereafter with the said document he went to the police station and lodged the F.I.R at Police Station Benwar at 10 p.m. 7. P.W. 2 Binda who was the owner of the field in which the deceased had gone to cut the crop had also joined the deceased to cut the linseed crop. He has stated the entire incident as was deposed to by P.W. 1 Ram Prakash. 8. THE learned counsel for the appellants tried to challenge testimony of the two eye-witnesses on some suggested ground but it may be stated at the outset that there is absolutely no reason why P.W. 2 Binda who was owner of the field would have deposed falsely against any of the appellants. He had no axe to grind against the accused. He had no enmity. He was not a man belonging to any party of the deceased or the informant. He had no axe to grind against the accused. He had no enmity. He was not a man belonging to any party of the deceased or the informant. He stands out as an absolutely independent person whose testimony can be singularly relied upon for the purposes of placing reliance on the prosecution case. Simultaneously, the statement of P.W. 1 Ram Prakash also indicates that he had every reason to be present at the place of occurrence. He had said, as was the case set up in the FIR that he had come from the college where he had gone to appear as a private student for class-X examination and as asked by the father Ghasita, he left at about 3.30 p.m. for the field where the crop cutting was going on. This was so arranged because the linseed oil seed had to be removed to the Khalihan. The learned counsel for the appellants wanted to criticize the statement of Ram Prakash on the ground that even on the subsequent day there was a paper as emerges from the statement of P.W. 1 and, therefore, it was unlikely that he should have come back all the ten miles only to go there again the next day. The argument proceeded that since it was a fact that Ram Prakash was a student and had appeared in the examination on 14.3.89 and was to appear on 15.3.89, he should have stayed back in the village where the college was situated. The learned counsel could not answer the argument raised by the prosecution that infact Ram Prakash was not regular student but was appearing only as a private examinee and if that was so, covering a distance of about 9 kms., not 10 miles, by a young lad for appearing in the examination appears natural. In the circumstances it was probable that he would have come back after having finished the paper on 14.3.89 to his residence. 9. IN the cross-examination of P.W. 1 Ram Prakash it has come that all other family members had already gone to cut the crop along with P.W. 2 Binda who was the owner who too had joined in cutting the crop, consequently there was nobody who could have taken the bullock cart for carrying the cart load of cut crops. 9. IN the cross-examination of P.W. 1 Ram Prakash it has come that all other family members had already gone to cut the crop along with P.W. 2 Binda who was the owner who too had joined in cutting the crop, consequently there was nobody who could have taken the bullock cart for carrying the cart load of cut crops. There is nothing in the cross examination of P.W. 1 Ram Prakash which may indicate that he is implicating falsely or that his testimony does not inspire confidence. 10. SIMULTANEOUSLY it has to be noted that from the statement of P.W. 5 Sujan Singh as well as P.W. 6 Sujan Singh Tomar, Investigation Officer it is more than clear that the FIR had already been lodged by Ram Prakash at 10 p.m. which was a written FIR. It has been proved on the record as Exh. Ka. 1 and the chick report has also been duly proved. In this connection it was sought to be emphasized that in the examination-in-chief P.W. 6 Sujan Singh has stated that he had reached the place of occurrence at 8 p.m. in the night. On the strength of this statement it was argued that the prosecution case that the FIR was lodged at 10 a.m., falls to the ground. On critically examining the statement and the record thoroughly it is established that this figure 8 p.m. appears to have been inadvertently written by the trial Judge. In the cross-examination a direct question has been put to this Investigating Officer P.W. 6 Sujan Singh in reply to which he had categorically stated that he had reached the place of occurrence at 11.30 p.m. the same night and since there was paucity of light which could not be arranged quickly, the inquest report and other necessary formalities about preparation of the site plan were postponed till the dawn. When P.W. 6 Sujan Singh was available in the witness box, no attempt was made for the appellants to get it clarified from the said witnesses as to how he had said that he had reached the spot at 8 p.m. There is thus absolutely no doubt that what should have been written as 11.30 has been inadvertently written at 8.00 p.m. in the examination in chief of this witness and consequently nothing turns on this clerical error and omission. It was emphasized that there is a disparity in the post-mortem examination reports of the two deceased and the eye witnesses account furnished by P.W. 1 Ram Prakash and P.W. 2 Binda. It was sought to be argued that gun shot injuries of P.W. 4 have been noted by the doctor as having blackening. It was thus argued that the eye-witness account being that accused Kamlesh had fired from some distance when the deceased Ghasita was on the cart would rule out the possibility of the deceased Ghasita, sustaining injuries with blackening of margins. It may be stated here that there are several injuries on both the deceased indicating that they were fire-arms injuries caused from a distance. It has further come in the statement of both the eye-witnesses that all the accused had used their weapons after the deceased Ghasita had fallen down. The number of gun shot injuries clearly indicate that repeated firing were resorted to and there is every likelihood of one or two shots having been fired from nearby distance resulting in blackening of the margins. Consequently, there is absolutely no discrepancy between the eye witness account and the postmortem examination reports. It was then argued by the learned counsel for the appellants that the prosecution had not explained as to why the post-mortem examination of Natthu was done on 16.3.89 at 4.30 p.m. while that of the other deceased Ghasita was done on 17.3.1989 at 11.00 a.m. The argument proceeded further that because of the difference in timings of the post-mortem examination of the two deceased it should be presumed that the police papers were not ready and were subsequently prepared by the Investigating Officer in collusion with the informant. It is hard if not impossible to accept this argument. If P.W. 7 Dr. M. R. Gautam could perform the post-mortem examination report of Natthu on 16.3.89 at 4.30 p.m. and had received all police papers, how anyone can say that the FIR had not been lodged prior to that time. As stated above, the statement of Ram Prakash as well as the contents of the FIR indicate the death of Natthu and Ghasita simultaneously. Therefore, the question of preparation of Police papers subsequently is wholly ruled out. It was rightly argued by the learned counsel for the State and the informant that in fact the Chief Medical Officer had deputed P.W. 7 Dr. Therefore, the question of preparation of Police papers subsequently is wholly ruled out. It was rightly argued by the learned counsel for the State and the informant that in fact the Chief Medical Officer had deputed P.W. 7 Dr. M. R. Gautam for conducting the post-mortem report on the dead body of Natthu and it was he who had deputed P.W. 3 Dr. B. K. Srivastava to conduct the post-mortem examination on the dead-body of Ghasita. It is apparent that since. Dr. B. K. Srivastava was not available in the evening of 16.3.89 he conducted the post-mortem on 17.3.89 at 11 a.m. It is to be mentioned here to remove all doubts that in both post-mortem examination reports it is mentioned that two constables of P. S. Benwar had accompanied the dead bodies along with the Police papers. The actual letter of request for post-mortem examination also mentions the receiving of the police papers in time. These documents have been proved by the testimony of P.W. 3 Dr. B. K. Srivastava and P.W. 7 Dr. M. R Gautam. Under the circumstances the delay in the post-mortem examination of Ghasita was not for any ulterior motive or purpose rather it became inevitable due to the non-availability of P.W. 3 Dr. B. K. Srivastava in the evening of 16.3.89. Therefore, there is no force in this argument also. 11. THE learned counsel utterly failed to challenge the arrest of the five appellants on 17.3.89 at 5.30 p.m. THE testimony of P.W. 4 Sikander Singh who was a Sub-Inspector and who has deposed about the manner of arrest of the five appellants leaves no room for doubt that all of them were in fact apprehended at 5.30 p.m. on 17.3.89 when they were sitting on a culvert between the village Sayar and Kamhariya. No argument was advanced about the discovery of the weapons at the pointing out of the appellants Chandra, Laxmi Narayan, Sri Krishna and Dhani Ram. Similarly nothing could be pointed out to challenge the recovery of the two Safi from the possession of Sri Krishna and Dhani Ram, the appellants. However, nothing much turns on the recovery or discovery of these weapons and clothes because it is not established from serologist report that these had blood marks belonging to either of the deceased. Similarly nothing could be pointed out to challenge the recovery of the two Safi from the possession of Sri Krishna and Dhani Ram, the appellants. However, nothing much turns on the recovery or discovery of these weapons and clothes because it is not established from serologist report that these had blood marks belonging to either of the deceased. Therefore, from the evidence of P.W. 4 and the connected documents it is established that all the five appellants were arrested on 17.3.89 at 5.30 p.m. and nothing could be shown by the accused to challenge the aforesaid assertions of prosecution. THE last argument advanced on behalf of the appellants was serious enough to compel the court to ponder deep over the matter. It was stated that two of the appellants namely Chandra and Dhani Ram were said to have been armed with spears (ballam). Reference was made to the F.I.R. wherein it is not said that those ballam were used like lathies. It was emphasized that normally the spears should have been used in the normal manner. It was thus, argued that the absence of any pointed weapon injury such as punctured wound, piercing wound or penitrating wound makes doubtful the use of spear in the incident. It was emphasized that in the statement of P.W. 1 Ram Prakash it has come for the first time that the spears (ballam) were used like lathis. On the strength of this statement it was suggested that the prosecution wanted to improve its case and therefore it should be discarded. THE learned counsel for the state and the informant however emphatically argued that from the statement of doctor and the nature of injuries sustained it is more than apparent that several incised wounds with small dimension were direct result of ballam attack. In fact, one would have proceeded oneself to accept the argument of the State counsel, had the prosecution insisted only upon the type of description set out in first information report and had not made an attempt to give an additional colour to the said description. THE Hon'ble Supreme Court has in two reported cases said that the rule of "abundant-caution" may be applied on such facts and circumstances to these accused even while placing reliance on the testimony of the eye witnesses. THE Hon'ble Supreme Court has in two reported cases said that the rule of "abundant-caution" may be applied on such facts and circumstances to these accused even while placing reliance on the testimony of the eye witnesses. This case also deserves the applicability of the said rule and by way of abundant caution the two appellants holding spears are entitled to the benefit of doubt. This however, does not in any way diminish the value to be attached to the entire testimony furnished by P.W. 1 Ram Prakash and P.W. 2 Binda both of them were absolutely natural and probable witnesses. 12. THEN the learned counsel for the appellants argued that the appellants Chandra and Laxmi Narayan are young men of 28 years and 35 years respectively while Dhani Ram was a youth of about 27 years and appellant Sri Krishna is again a young man of 30 years and therefore, it was prayed that the sentence of death on the facts of the present case was not called for. This argument was opposed by the learned counsel for the State. However, considering all the facts and circumstances of the case the death sentence awarded by the learned trial Judge on the appellants can and should not stand and to that extent the appeals of even Laxmi Narayan, Kamlesh and Sri Krishna have to be allowed. In view of the aforesaid discussion this appeal is partly allowed. The conviction and sentence award to the appellants Chandra and Dhani Ram are set aside. They are in jail. They are acquitted for the charges framed against them by giving the benefit of doubt. They will be released forthwith unless wanted in any other case. 13. THE convictions of appellants Laxmi Narayan, Kamlesh and Sri Krishna are upheld. They have been rightly found guilty under Section 302, I.P.C. but Section 149, I.P.C. and Section 148, I.P.C. will not be attracted and instead Section 34, I.P.C. would have to be applied. However, the sentence of death awarded by the trial Judge to these three appellants is set aside and instead converted to imprisonment for life. THE three appellants Laxmi Narayan, Kamlesh and Sri Krishna are in jail who will undergo the sentence under Section 302/34, I.P.C. as modified by this court. THE reference made by the Sessions Judge for confirmation of the death sentence of all the accused is rejected. Appeal partly allowed.