JUDGMENT 1. -These 4 criminal appeals and a murder reference arise out of the judgment of the learned Additional Sessions Judge No. 1, Hanumangarh dated 27.9.1997, whereby the 11 accused appellants were convicted and sentenced by the learned Additional Sessions Judge as under:- 1. Under Section 302, 302/149 & 120- B IPC Death sentence & to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo 1 year R.I., 2. Under Sections 307, 307/149 & 120-B IPC To life imprisonment and to pay a fineof Rs. 2,000/- and in default further 3, months R.I. 3. Under Section 450 IPC To 7 years R.I. and a fine of Rs. 2,000/- in default to further undergo 3 months R.I. 4. Under Section 148 IPC To 3 years R.I. & a fine of Rs. 2,000 & in default to further R.I. of 3 months 5. Under Section 27 Arms Act To 6 months R.I. & a fine of Rs. 1,000/- & in default further R.I. of of one month 2. Along with the accused appellants one more person was also tried namely Om Prakash. He has been acquitted of the charges levelled against him. 3. In the present 4 appeals filed by the different accused persons, they have challenged the conviction and sentences passed against them and in the murder reference the question before the. Court is whether the sentence of death awarded to the accused appellants is liable to be confirmed or not. 4. The case of the prosecution against the accused appellants was that on the night of 22.8.1992 while PW 2 Subhash Chandra, PW 3 Raj Kumari and deceased Bhagwana Ram, Sunder and Chando Devi were keeping inside their house at that time 8 accused persons, namely, Krishan, Vishnu, Banwari, Prithvi. Brij Lal, Dhokal, Bhagirath and Het Ram came inside the house firing gun shots. Krishan exhorted, kill all of them and don't leave. One of the fires made from pistol by Krishan hit Subhash, the first informant. When he tried to escape and get inside the Kotha, he was once again hit by a bullet. In the occurrence his grand mother, father and brother were killed and he himself and his cousin sister Raj Kumari were hurt. The accused fired numerous gun shots. They were addressing each other at the time of occurrence. When he tried to escape and get inside the Kotha, he was once again hit by a bullet. In the occurrence his grand mother, father and brother were killed and he himself and his cousin sister Raj Kumari were hurt. The accused fired numerous gun shots. They were addressing each other at the time of occurrence. After having fired a number of gun shots, Krishan said that let us go as the work has been accomplished. When the accused left Subhash who had taken shelter in the Kotha came out and saw that the injured were very serious. His brother and father had died. He brought on a torch during the occurrence and identified the accused. There was a previously existing enmity between the parties. The accused Krishan was earlier involved in the murder of brother of Subhash. Om Prakash in which the case was still pending. After the incident injured Subhash and Raj Kumari went to the house of Mani Ram Bishnoi who is the father in-law of Subhash and his son Manohar Lal. They arranged a jeep and took them to the Pilibanga hospital for treatment. His statement was recorded by the police in the hospital, which was sent for registering the case. After the police recorded the statement Ex. P/11, the statement of Subhash Chandra the Police proceeded with the investigation. During the investigation the Police came to the conclusion that accused Vishnu, Banwari, Prithvi, Brijlal, Dhokal, Bhagirath and Hetram were not present at the scene of occurrence at the time of the incident but instead the accused Beeker Singh, Mangu Singh and Major Singh were the assailants along with Krishan and a challan was presented against Krishan, Becker Singh, Mangu Singh, Major Singh and Om Prakash. teamed Magistrate took cognizance against 2 accused who were left out by the police and committed all the 12 accused persons to the Court of Sessions for trial and the matter was transferred to the Court of Additional Sessions Judge No.1, Hanumangarh for trial. 5. At the trial the accused were tried for offences under sections 148. 450, 302, 307, 302 r/w Sections 149. 120-B, 307 r/w Section 149, 120-B IPC and Section 27 of the Arms Act. The accused denied the charges. The prosecuting produced 12 witnesses and tendered around 80 documents in evidence. The accused led evidence in defence and examined as many as 10 witnesses. 450, 302, 307, 302 r/w Sections 149. 120-B, 307 r/w Section 149, 120-B IPC and Section 27 of the Arms Act. The accused denied the charges. The prosecuting produced 12 witnesses and tendered around 80 documents in evidence. The accused led evidence in defence and examined as many as 10 witnesses. The thrust of the statement of the defence witnesses was that a few of the accused persons were not present at the time of occurrence because they were present elsewhere and plea of alibi was set up by the accused persons by producing the defence witnesses. 7 documents were also produced as defence documents. The learned Additional Sessions Judge framed various point for his determination and proceeded to decide the points raised by him. The learned trial Court believed the testimony of PW 2 Subhash Chandra and PW 3 Raj Kumari being the injured eye-witnesses. The trial Court has also believed that the implication of accused persons Beekar Singh, Mangu Singh and Major Singh is proved by Ex. P/34 a letter recovered from the pocket of accused Krishan and convicted all the accused appellants as aforesaid. As regards accused Om Prakash, the trial Court did not find the prosecution version as trust worthy. All the accused appellants were sentenced to death. Hence these appeals. 6. In this case, the most material part of the evidence is the testimony of PW 2 Subhash Chandra and PW 3 Raj Kumari. PW 2 Subhash Chandra in his statement has said that on the date of occurrence at 1.00 a.m. while he, PW 3 Raj Kumari his father Bhagwana Ram, brother Sunder Ram and grand mother Chando were sleeping he heard gun shot reports and woke up others also woke up and saw that the accused persons, Krishan, Vishnu, Prithvi, Banwari, Dhokal, Brij Lal, Het Ram and Bhagirath were entering into the house, firing shots. Krishan made a fire which hit him. Krishan also exhorted that no one will be permitted to escape. When this witnesses tried to escape one fire hit on his hand. When he entered into the Kotha. After him Raj Kumari also entered into the Kotha. She also sustained fire arm wounds at 2-3 places. After some time thereafter this witness states that he took the torch and came out of the room and in the torch light he saw that the accused were making fires. When he entered into the Kotha. After him Raj Kumari also entered into the Kotha. She also sustained fire arm wounds at 2-3 places. After some time thereafter this witness states that he took the torch and came out of the room and in the torch light he saw that the accused were making fires. He was fired at again when he lit the torch. Thereafter, he entered into the room. Some time thereafter the accused said that the work has been accomplished. The accused were addressing each other. They left after some time and thereafter he came out of the room and saw that his father Bhagwana Ram and brother Sunder Ram have died due to gun shot wounds and his grand mother Chando was struggling. 7. He and Raj Kumari went to the house of Mani Ram and Manohar Lal. After reaching Lakhasar Mani Ram and Manohar Lal were informed about the incident. The injured were put in a jeep and taken to the Pilibanga Hospital and there the police arrived and statement of Subhash was recorded. Witness PW 2 further informs that four years before this incident accused Krishan and other had killed his-brother Om Prakash and case in this relation is still undergoing in that case, Subhash Chandra, his brother Sunder Ram and father Bhagwana Ram were witnesses against the accused Krishan and others. Krishan was on bail in that case. He has produced the charge-sheet and FIR of the earlier case as Ex.P/12. 8. This witness was cross-examined and in the cross-examination this witness has admitted that in the earlier case the accused persons Brij Lal, Krishan , Vishnu, Banwari, Prithvi, Hetram and Dhokal were the accused. He has denied the allegation that since the accused persons were accused in the earlier case, therefore, they were falsely implicated in this case. He was also asked that except Krishan the other accused persons named by him were not challaned by the police and instead Beekar Singh, Mangu Singh and Major Singh were challaned by the police. The cross-examination was also directed whether he could identify the accused while the fires were made. Questitms were also asked about the distance from which the fires were made and about his bringing torch and indemnifying the accused persons. 9. The other eye witness is PW 3 Raj Kumari. The cross-examination was also directed whether he could identify the accused while the fires were made. Questitms were also asked about the distance from which the fires were made and about his bringing torch and indemnifying the accused persons. 9. The other eye witness is PW 3 Raj Kumari. Witness Raj Kumari has stated in her statement that while she, along with the others, was sleeping at 1.00 a.m. she woke up after hearing gun fire report. At that time the accused persons Krishan, Vishnu, Banwari and Prithvi entered into their house making fires. Krishan said that no one should remain alive. Krishan had a pistol. Krishan fired a shot which hit subhash at his abdomen. On getting hit Subhash entered into the room. She also sustained 2 gun shot wounds. After entering into the room Subhash took a torch and came out of the room. The accused were addressing each other. After remaining some time in the room they came out of the room and saw that Bhagwana Ram, Sunder Ram had died and Chandrakori was in serious conditions. She and Subhash went to the house of Mani Ram at Lakhasar, where she did not inform but Subhash informed them about the incident. She and Subhash Chandra were escorted by Mani Ram and Manohar Lal to the Pilibanga Hospital. The four accused Krishan, Banwari, Prithvi and Vishnu were identified by this witness. She was cross-examined. The cross-examination was directed regarding the identity of the accused persons. She has stated that though she had no occasion to talk to the accused persons before the incident but since they are neighbours, therefore, she indemnifies them. When the accused were addressing each other during the incident, therefore, also she identifies them. 10. The post-mortem report of the deceased persons were admitted by the accused. therefore, they were admitted into evidence. It is not disputed that the three deceased died of the injuries received by them. 11. The other piece of evidence which was considered relevant against the accused persons is the recovery of fire arms at the instance of Krishan and another accused Beekar Singh. One more recovery has been pressed into service by the learned trial Judge against the accused persons i.e. the letter Ex. P/34 recovered from the pocket of accused Krishan which is alleged to have been written by Major Singh to Beekar Singh and Mangu Singh. 12. One more recovery has been pressed into service by the learned trial Judge against the accused persons i.e. the letter Ex. P/34 recovered from the pocket of accused Krishan which is alleged to have been written by Major Singh to Beekar Singh and Mangu Singh. 12. Learned counsel appearing the-accused Beekar Singh, Mangu Singh and Major Singh had stressed that none of the eye-witnesses have named these three accused persons, their names also do not find mention in the FIR. No part whatsoever has been assigned to any one of these accused persons. The reason given for their conviction is the letter Ex. P/34 which has been found from the pocket of accused Krishan allegedly written by Major Singh to Beekar Singh and Mangu Singh. This letter has not been established by any cogent evidence to have been written by Major Singh and unless it is established that it is written by Major Singh it cannot by itself connect the accused with the letter. Further this letter by its contents does not prove anything against the accused persons. There is not a whisper that this letter relates to the incident at all and, therefore, the learned trial Court has erred in relying upon the letter Ex.P/34 for convicting these three accused persons. Apart from this there is only one circumstantial piece of evidence against one of the accused person Mangu Singh. It is alleged that a weapon has been recovered at the instance of accused Mangu Singh. The recovered weapon was found connected with one of the empties found at the scene of occurrence. Firstly, mere recovery of an empty being connected with a weapon by itself does not connect the accused persons with the crime. From this it cannot he said that there is any connection of this person with the crime. Further, the implication of all the accused persons has been excluded by the eye-witnesses. Therefore, they cannot he implicated by such a circumstantial piece of evidence when the positive evidence excludes them from the crime. In this back-ground the argument of the Learned counsel for these three appellants is that they merit acquittal. 13. Learned counsel for the State and counsel for the complainant has not been able to point out from the prosecution case that there is any substantive piece of evidence available on record to connect these accused persons by recovery of a letter. 13. Learned counsel for the State and counsel for the complainant has not been able to point out from the prosecution case that there is any substantive piece of evidence available on record to connect these accused persons by recovery of a letter. Learned counsel for the complainant and State has not been able to establish anything against any one of these three accused persons. The alleged recovery of the letter by itself has been alleged to be the only circumstance available on record against these accused persons. Against Beekar Singh is the recovery of a fire arm. 14. We have given our thoughtful consideration to the case of the prosecution qua these three accused persons. In the face of omission from the evidence of the eye-witnesses and non-availability of any cogent evidence against these accused persons it is not safe to convict them. The letter Ex.P/34 which has been pressed into service by the learned trial Court is hardly a piece of evidence which can merit consideration to base conviction of theseaccused persons. The mere recovery of letter of Major Singh to Mangu Singh and Beekar Singh is not sufficient to hold that Mangu Singh and Beekar Singh were involved in the incident. In the face of the evidence of eye-witnesses the recovery of fire arm from Beekar Singh also looses importance. Having chosen to given eye-witnesses account of the incident to the exclusion of these accused, the prosecution has diminished any chance of their implication. Consequently, we are left to accept the appeal of these accused persons. Their conviction and sentences are set aside and they are acquitted of the charges levelled against them. 15. This leaves us with the case of the 8 accused persons. Learned counsel for the accused appellants Krishan, Vishnu, Banwari, Prithvi, Dhokal, Brij Lal, Hetram and Bhagirath has urged that the prosecution of these accused persons hinges on the testimony of two eye-witnesses, namely, PW 2 Subhash Chandra and PW 3 Raj Kumari. These two witnesses claimed that they have identified the accused in the night while gun shots were being fired, the distance between these witnesses and the accused could be from 37 to 50 feet. These two witnesses claimed that they have identified the accused in the night while gun shots were being fired, the distance between these witnesses and the accused could be from 37 to 50 feet. At the time when the accused entered they were at a distance of about 200 feet and in these circumstances it is impossible in the dead of night and in such frightening circumstances to recognise the accused persons when indiscriminate firing was going on. Learned counsel urged that there is not possibility of any identification being made by these witnesses. 16. Learned counsel for the appellant has further stressed that PW 2 who had suddenly aroused from the sleep could have been frightened and then naturally had a greater concern *for his own life and safety. Since he received fire arms injuries caused to him by Krishan he immediately rushed to the Kotha. His conduct establishes that he had hardly any chance to notice the accused persons and he could not have identified the accused persons in any manner. 17. The torch has been introduced fakely to establish that this witness had a source and-aid of torch to identify the accused persons. 18. Learned counsel for the appellants has further stated that this witness has not been corroborated by PW 3 Raj Kumari qua Brij Lal, Bhagirath, Dhokal, and Het Ram, i.e. four accused persons and he has only been corroborated qua Krishan, Vishnu, Banwari and Prithvi. His statement remained uncorroborated in respect of accused Dhokal, Bhagirath, Brij Lal and Het Ram. She has not stated as to how she has received the injuries and from whose gun shots. She has also not deposed that PW 2 Subhas Chandra received injuries from the fire made by Krishan. It seems that they have name the accused only by guess work. It was the result of previous enmity between the parties. 19. The evidence of these witnesses have also been impeached by the learned counsel for the appellants that the deceased have also received another injuries by blunt and sharp edged weapons, but they have not spoken any word about these injuries. Had they been present at the scene of occurrence they would have definitely beena position to say as to who were the authors of these blunt and sharp edged weapon injuries. 20. Had they been present at the scene of occurrence they would have definitely beena position to say as to who were the authors of these blunt and sharp edged weapon injuries. 20. Learned counsel has further stressed that the deceased Bhagwana Ram was found near the main gate of the house. His shifting from the cot to the main gate is not clear. Both the witnesses have not spoken anything about this. This creates doubt that they have not seen the occurrence. Learned counsel for the appellants further stressed that the investigating agency has not thought it proper to challan accused Vishnu, Banwari, Dhokal. Prithvi. Het Ram, Bhagirath and Brijlal as they have been found innocent by the investigating agency and this fact also shows that they have been falsely implicated. 21. Replying to the arguments of the learned counsel for the appellants the learned Public Prosecutor assisted by the counsel for the complainant stated that the accused persons were known to the witnesses from before, there was deep rooted enmity between the parties. The real brother of Subhash Chandra has been murdered by Kirshan and other accused persons in another case and, therefore, the parties were earlier engaged in a criminal litigation and had a deep rooted enmity between the parties and, therefore, the question of identification cannot be left to suspicion because it is more than the friends that the enemies are easily identified. 22. The accused by their efforts misdirected the investigation and, there fore. they were left out. The conclusion of the investigating agency have not found favour with the learned trial Court and, therefore, they cannot be blown out of proportion. Subhash Chandra has sustained tattooing along with gun shot. Tattooing is caused when the gun shot is fired from a near distance. The accused travelled much closure to the victims. Therefore, apart from their being close acquaintance between the witnesses and the assailants, there was sufficient opportunity for identification. Regarding availability of light, the story of torch is consistent right from the beginning i.e. from FIR to the Court. Therefore, there was enough light to identify the accused persons. 23. Both the eye-witnesses are injured eye-witnesses. The injuries are serious one and, therefore, presence is established. When the injured eye-witnesses implicate the accused persons then it cannot he said that they have falsely implicated the accused_persons. Therefore, there was enough light to identify the accused persons. 23. Both the eye-witnesses are injured eye-witnesses. The injuries are serious one and, therefore, presence is established. When the injured eye-witnesses implicate the accused persons then it cannot he said that they have falsely implicated the accused_persons. Itthis light of the matter what is required is that the accused persons should be held guilty of the charges levelled against them. 24. We have heard the learned counsel for the parties and have perused the record. 25. Learned counsel for the appellants has placed reliance on Babu Ram v. State of "Raj., 1996 (1) RCD 210 (Raj.) wherein the theory of torch light was developed at the trial which was not found in the FIR and in the police statements and, therefore. it was not believed. In the instant case, the torch has not been introduced for the first time in the Court. It finds mention in the FIR and the police statements of the witnesses. Therefore, this case has no application in the facts and circumstances of the case. 26. Learned counsel for the appellants has also relied upon Ram Narain Singh v. State of Punjab, 1975 SCC (Cri.) 571 and has submitted that when there is conflict between the medical evidence and the eye-witness account, then they should be discarded. In the instant case, there is no inconsistency between the medical evidence and eye witness account. Therefore, this case has no application in the facts and circumstances of the present case. 27. Another case relied upon by the learned counsel for the appellants is Mohinder Singh v. State of Punjab, AIR 1955 SC 762 . In this case, the prosecution was based on the evidence of a witness whose eyesight was too weak to identify the accused in the dark night. In the instant case, the.witnesses were young and previously known to the accused persons. The incident had taken place for sufficiently long time. Therefore. it cannot be said that they had no capacity to identify the accused persons. In this back-ground. this case is also of no consequence to the accused. 28. The defence has stressed that it was a pitch-dark night. Right from the inception the accused are alleged to have started firing shots. Therefore. it cannot be said that they had no capacity to identify the accused persons. In this back-ground. this case is also of no consequence to the accused. 28. The defence has stressed that it was a pitch-dark night. Right from the inception the accused are alleged to have started firing shots. The distance between the assailants and the witnesses was according to the defence around 37 to 50 feet and there was no possibility of identification of the assailants. The identification of the assailants has to be judged from the back-ground that the accused persons were known to the prosecution witnesses as there was deep rooted enmity between the parties and there has been a previous litigation involving the murder of brother of the witness i.e. Om Prakash. If previously known persons entered into the house during the night then the possibility of identification is not as remote as to the unknown persons. Witness PW 2 has stated that he could identify the assailants from the beginning of the firing. The first reason given by this witness is his own perception and the second reason given by this witness for identification is the naming of the accused persons by addressing each other and the third reason is the torch light which this witnesses states that he brought it from inside after having been hurt. A number of shots were fired, the occurrence had taken place for considerably long spell of time. Witness Subhash has sustained gun shot wound with tattooing. This puts the distance between his assailant and him to a few feet and in this back-ground it cannot be held that there was no possibility of identification at all. It is something different that unknown persons come in the night but when previously known enemies come during the night under the covery of darkness then the identification is more easier if the accused are addressing each other by names then movement and gestures coupled with the identification of names can give a clear perception to a previously known person who had known the accused persons earlier thoroughly well having been witness against them in a criminal trial. Taking total conspectus of the facts it cannot be said that there was no possibility of identification of the accused persons. 29. The incident had occurred while the witnesses were aroused from sleep. The witnesses have sustained gun shot wounds. Taking total conspectus of the facts it cannot be said that there was no possibility of identification of the accused persons. 29. The incident had occurred while the witnesses were aroused from sleep. The witnesses have sustained gun shot wounds. The frightening sensation may be more at the inception but when the injured sustained gun shots then the shock of getting hurt was over. The worst has happened, the witnesses have recovered from the shock, PW 2 attempted to make a bid to rescue himself and then resorted to getting torch light. Curiosity to identify the assailants assumes importance and it cannot altogether be ruled out that the witness Subhash gathered enough courage to identify the accused in the light of the torch while he had known that whatever the accused can do they have attained their ultimate and in this back-ground the capacity of Subhash to go for identification cannot also be altogether eliminated. The story of the torch finds mention in the FIR and he throughout deposed about it. Therefore, it cannot be said that it is an after thought and it is an improvement in the prosecution case. PW 3 Raj Kumari too has convincingly told about the incident Thus, in the totality of circumstances, this is made out that the witnesses had the capacity and occasion to identify the assailants. 30. The testimony of the eye-witnesses that they sustained injuries from the gun shots, at the occurrence, cannot be disbelieved. The injuries sustained by these two eye-witnesses are gun shot injuries and by no stretch of imagination the wounds sustained by them can be said to be self sustained wounds. Therefore, the presence of these two eye-witnesses at the sence of occurrence cannot be doubted. 31. Once it is held that the witnesses were present and could identify the assailants then what remains to be seen is that how good is the identification made by the witnesses. 32. Once the presence of the eye-witnesses is established then comes the question as to whether the case should be believed against all the accused persons from the testimony of these witnesses or any of the accused persons deserves any consideration on any count. 33. PW 3 Raj Kumari has named four accused persons in her statement to be the assailants. She has given reasons to identify these accused persons being the neighbours. 33. PW 3 Raj Kumari has named four accused persons in her statement to be the assailants. She has given reasons to identify these accused persons being the neighbours. She is a girl of 15 years of age. In her cross-examination nothing has been brought by the defence so as to term her to be a witness, unworthy of credit. None of the statements made by her can be said to be tainted by any such infirmity so as to not to place implicit reliance on her testimony, she appears to be a witness of truth. She by her forth right statement had given convincing account of the occurrence and has identified the four accused appellants, namely, Krishan, Vishnu Banwari and Prithvi. 34. PW 2 Subhash Chandra another eye-witness has named 8 accused persons 4 in addition to what PW 3 has stated Dhokal. Brij Lal, Hetram, and Bhagirath are additional accused. There is a variance in the statements of the two eye-witnesses. PW 3 does not name the accused Dhokal, Brij Lal, Het Ram and Bhagirath. Conviction of these accused persons in absence of any other corroboration would not be safe to be maintained because there is previous enmity between the parties which is a double edged sword. 35. A critical examination of the testimony of two eye-witnesses PW 2 Subhash Chandra and PW 3 Raj Kumari shows that as regards the four accused persons, namely, Krishan, Vishnu, Banwari and Prithvi, there is no variance in the testimony of these two eye-witnesses. The testimony of PW 3 Raj Kumari has not been shaken in the cross examination and therefore, on the basis of the testimony of Raj Kumari corroborated by PW 2 Subhaschandra these 4 accused persons can be held to be present at the scene of the occurrence and it can be safely held that they have used gun shots as alleged by this witness & as corroborated by PW 2 Subhash Chandra. In relation to the other four accused persons, namely, Dhokal, Brij Lal, Het Ram and Bhagirath a doubt is created as to whether they were in fact present or not because had they been present Raj Kumari would have definitely named them. In relation to the other four accused persons, namely, Dhokal, Brij Lal, Het Ram and Bhagirath a doubt is created as to whether they were in fact present or not because had they been present Raj Kumari would have definitely named them. May be that they were present and Raj Kumari had missed their presence but it an injured witness misses to name the four accused persons then such absence goes in favour of the accused persons and, therefore, notwithstanding the testimony of PW 2 Subhash Chandra the presence of these four accused persons is held to be doubtful. May be that they were not present on the sence of the occurrence at the time of the incident. In this back-ground of doubt, it can be said that, the presence of the four accused Krishan, Vishnu, Banwari and Prithvi is held proved. Presence of four accused Dhokal, Brij Lal, Het Ram and Bhagirath is held doubtful. 36. The argument of the learned counsel for the defence that the deceased had injuries other than the gun shots cannot be blown out of proportion because for some part of the occurrence these witnesses were not viewing the scene of occurrence directly. They have taken shelter in the Kotha and during that interval the injuries might have been caused by blunt and sharp edged weapons. Therefore, non-deposition about these injuries by these witnesses cannot, therefore, mean that these witnesses have not seen the occurrence at all and on this score their testimony cannot be ignored. 37. In the result, the four accused not named by PW 3 Raj Kumari, namely, Dhokal, Brij Lal, Het Ram and Bhagirath are given benefit of doubt. Rest of the four accused Krishan, Vishnu, Banwari and Prithvi along with some other persons are held to be involved in this incident. The rest being excluded on account of the doubt. When the four accused persons Krishan, Vishnu, Banwari and Prithvi have participated in the crime and killed three persons by gun shots then their conviction for the charges levelled against them can be maintained. Presence of four accused with some unknown assailants is enough to make their conviction possible with the aid of Section 149 IPC also. 38. Having sustained the conviction of the accused persons, we now proceed to the question of sentences to be awarded to them. 39. Presence of four accused with some unknown assailants is enough to make their conviction possible with the aid of Section 149 IPC also. 38. Having sustained the conviction of the accused persons, we now proceed to the question of sentences to be awarded to them. 39. As regards the sentences under sections 307, 307/149, 120B, 450, 148 IPC and Section 27 of the Arms Act, none of them deserve to be interfered with and hence the same are maintained. 40. As regards the death sentence awarded to the accused persons under sections 302 & 302 r/w Section 149, 120-B IPC., the consideration has to be made because apart from awarding of the sentence on this count, the confirmation of the death sentence is also to be adjudged by us. 41. At the trial twelve persons were charged. Eight have been acquitted of the various charges levelled against them. If the prosecution's case has been whittled down to ⅓rd level then it assumes importance when eight originally charged persons were not convicted then to award death sentence to the remaining four accused persons appears to be little inappropriate and in this background it is not considered fit to award the extreme penalty of death to the convicted four accused persons and, therefore, their appeals on that count are accepted and the sentence of death is converted into life imprisonment. On this score the reference of the trial Court is rejected. The appeal of the four accused persons is accepted in part and the death sentence is converted into life sentence. Apart from this no alteration is required in the sentences awarded to the accused. 42. Consequently, the appeals filed by Beekar Singh, Mangu Singh, and Major Singh and Dhokal, Brij Lal, Het Ram and Bhagirath are allowed in their entirety. They be released forth with, if not required in any other case.The appeal of the accused Krishan, Vishnu, Banwari and Prithvi as regards challenge to conviction is rejected. Sentence of death awarded to them is converted to life imprisonment. Their appeal-against sentences in relation to other sentences is rejected.Appeal of appellant 'K', 'V', 'B', and 'P' dismissed, Appeal of other appellants allowed. *******