Judgment N.Pandey, J. 1. These eight appellants are aggrieved by the judgment dated 14th February, 1997, of the Vth Additional District Sessions Judge, Nalanda, in Sessions Trial No. 065 of 1980 Appellants Surendra Singh and Rajendra Singh have been convicted under Section 302 I.P.C. and sentenced to death. They have also been convicted under Section 27 of the Arms Act but no separate sentence was awarded. Appellant Binda Mahto has been convicted under Section 302 I.P.C. but sentenced to under rigorous imprisonment for life whereas other appellants have been found guilty under Sections 302/149 I.P.C. and sentenced for life imprisonment. 2. The prosecution story, as narrated by Muneshwar Jamadar (P.W. 2) in his village Bangachchi on 19.11.1978 at 4 p.m. before the Assistant Sub-Inspector of Police, Harnaut in short, is that his brother dafadar Suresh Beldar, Chaukidar Ramautar Paswan and constable Krishnandan Choudhary (P.W. 9) having received information at about 2.30 p.m. that the dead body of Deosaran Mahton of village Jeevanpur was lying bismeared with blood in Sunhari Khanda, started for that place P.W. Muneshwar Jamadar also followed them no. Sooner did they reach towards the north of the dead body, all these accused persons, who were standing there armed with gun, raised hulla Maro Salo Ko. It is alleged, appellant Rajendra Singh fired at Chaukidar Ramautar Paswan, who having received injuries fall down and died at the spot. On the instigation of appellant Rama Nand Singh, appellant Surendra Mahton also fired at dafadar Suresh Beldar who also succumbed to the injuries at the spot. Thereafter, constable Krishnandan Choudhary (P.W. 9) and others fled away from the spot. It has been claimed that P.W. 3 Nandu Beldar and P.W. 5 Ram Prit Paswan and P.W. 7 Naresh Jamadar also saw the occurrence. 3. The A.S.I. (P.W. 15) on the basis of the aforesaid statement, recorded a fardbeyan (Exhibit 5) and proceeded to village Sunhari Khanda, where the unfortunate incident had taken place and the dead bodies of Suresh Beldar and Ramautar Paswan were lying. He also found the dead body of Deosaran Mahton at a certain distance from the dead bodies of the above mentioned two persons. He prepared inquest reports and sent the dead bodies for post-mortem examination. He also seized different materials like clothes, blood stained earth, used cartridges etc. from the place of occurrence. He also found the dead body of Deosaran Mahton at a certain distance from the dead bodies of the above mentioned two persons. He prepared inquest reports and sent the dead bodies for post-mortem examination. He also seized different materials like clothes, blood stained earth, used cartridges etc. from the place of occurrence. He also recorded statement of Ram Prit Paswan, Nandu Beldar, Naresh Beldar, Parmeshwari Devi and Ram Pravesh Prasad at the place of occurrence. Ultimately, after due observance of other necessary formalities, the Investigating Officer closed investigation and submitted charge-sheet. Thereafter, the Chief Judicial Magistrate after necessary compliance of all the statutory requirements, took cognizance of the case and committed the appellants to the Court of Session to explain charges for the murders of Suresh Beldar and Ramautar Paswan. 4. The defence of the appellants, as would appear from their statement under Section 313 of the Code of Criminal Procedure and trend of cross-examination of the prosecution witnesses, appears total denial of the allegation, which were levelled against them. It was suggested, however, that in fact the son of deceased Ramautar Paswan had killed Deo Saran Mahto of village Jeevanpur and, therefore, the Chaukidar and dafadar were making attempt to remove his dead body and dispose of the same, in order to protect the main accused. 5. The prosecution, in order to support its case; has examined altogether 16 witnesses. Out of them, P.W. 1 Md. Kalimuddin, P.W. 10 Indra Deo Prasad, P.W. 11 Vishundeo Singh, P.W. 13 Devendar Paswan and P.W. 14 Rameshwar Singh are the formal witnesses who have proved the fardbeyan and the First Information Report etc. P.W. 16 Damodar Sharma had registered the case with regard to the murder of Deosaran Mahto, P.W. 8 Dr. S.C. Mishra had conducted the post-mortem examination on 20.11.1978 of the dead body of Suresh Beldar and found the following injuries : (i) Lacerated injury with inverted margin 1 /4" x 1/2" x chest cavity deep on the right side chest between 4th and 5th ribs. (ii) Lacerated injury with inverted margin 1.1/2" x 1/2" x chest cavity deep from the left side of the chest between 5th and 6th ribs. (iii) Lacerated injury 1.1/2" x 1/2" x muscle deep on inner side of the left arm. (iv) Lacerated injury 1.1/2" x 1/4" x muscle deep on the outer aspect of the left arm. (ii) Lacerated injury with inverted margin 1.1/2" x 1/2" x chest cavity deep from the left side of the chest between 5th and 6th ribs. (iii) Lacerated injury 1.1/2" x 1/2" x muscle deep on inner side of the left arm. (iv) Lacerated injury 1.1/2" x 1/4" x muscle deep on the outer aspect of the left arm. On the same day, he also conducted the post-mortem examination of Ramautar Paswan and found the following injuries : (i) Multiple lacerated injury in a diameter of one inch with inverted margin on his right side of his chest with fracture of 2nd to 5th rib of right side of right lung torn and lacerated. (ii) Multiple lacerated injuries with inverted margin on his back of his right forearm and wrist. (iii) Lacerated injury 1.1/4" x 1/4" x thoracic cavity deep with inverted margin on the front of his chest in middle leading to heart. (iv) Lacerated injury x" x1" communicating to injury No. 3 on his back side right to 7th vertebra. Fracture of 4th, 5th, 6th and 7th thorasic vertebra. Injury No. 3 is the would of entry and injury No. 4 is would of exit. In the opinion of the doctor, death of the abovementioned persons had place due to firearm injuries. 6 P.W. 2 Muneshwar lamadar, P.W. 3 Nandu Beldar, P.W. 5 Ram Prit Paswan, P.W. 7 Naresh Jamadar, and P.W. 9 Krishnandan Chaudhary are the material witnesses on the point of occurrence. P.W. 2 informant and P.W. 7 are the brothers of deceased Chaukidar Ramautar Paswan. As would appear from the evidence of these witnesses, they have fully corroborated the prosecution story, which was narrated before the Police at the time of recording the fardbeyan. The trial Court also on detail discussion of the evidence on record, found P.Ws. 2, 3, 5 and 7 and 9 consistent to the case of the prosecution that on account of firing made by appellant Rajendra Singh and Suresh Singh, both the deceased succumbed to the injuries at the place of occurrence. The trial Court also on detail discussion of the evidence on record, found P.Ws. 2, 3, 5 and 7 and 9 consistent to the case of the prosecution that on account of firing made by appellant Rajendra Singh and Suresh Singh, both the deceased succumbed to the injuries at the place of occurrence. Though in the fardbeyan, there is no allegation that appellant Binda Singh also fired ar the time of occurrence but all the eye-witnesses either in their statements before the Police or at the time of their evidence in Court, have alleged that when Ramautar fell down after receiving gun shot injuries, appellant Binda also fired his gun at him and fled away. The evidence of doctor (P.W. 8) and injury found by him also corroborate the statement of eye-witnesses. 7. Mr. P.N. Pandey, Senior counsel, appearing for the appellants, firstly, contended mat a bare narration of the statement of the informant in his fardbeyan and the evidence of the witnesses, including that of the Investigating Officer would show that informant was either not present at the place of occurrence or he has not come forward with true version. Because the fardbeyan indicates that it was recorded in the village of the informant at Bangachchi itself and thereafter, the Investigation Officer (P.W. 15) proceeded to Sunhari Khanda in village Jeevanpur, where the occurrence had taken place. But the informant or P.Ws. 3, 5, 7 and 9 have said in their evidence that the fardbeyan in this case was recorded by the I.O. near the dead bodies of Ramautar Paswan and Suresh Beldar at the place of occurrence itself. In support of his contention, Mr. Pandey also drew our attention to the signature of the informant either made by him on the First Information Report or at the stage of recording evidence in Court. He contended that a bare comparison of both the signatures would indicate that the signature which was made on the fardbeyan was of a different person. But since the Chaukidar and Dafadar were killed, the Investigation Officer in collusion with the informant in order to suppress the relevant facts, registered a case on the basis of concocted materials. 8. There is no doubt that the fardbeyan would show that it was recorded by the Investigating Officer in village Bangachchi itself. But since the Chaukidar and Dafadar were killed, the Investigation Officer in collusion with the informant in order to suppress the relevant facts, registered a case on the basis of concocted materials. 8. There is no doubt that the fardbeyan would show that it was recorded by the Investigating Officer in village Bangachchi itself. The I.O. has also said in his evidence that while he was present in village Jagatpur in connection with investigation of a different case, he heard a rumour that the dafadar and chowkidar were killed in Awabandhi Khanda of village Sunhari. On receiving such information, he went to village Bangachchi at about 4 Oclock and recorded the fardbeyan of Muneshwar Jamdar (P.W. 2). Thereafter, he proceeded to village Sunhari where dead bodies were lying and recorded statement of the witnesses. 9. But in my view, having regard to the consistent evidence of P.Ws. 2, 3, 5, 7, 9 and 15, there cannot be any dispute that Suresh Beldar and Ramautar Paswan were killed in village Sunhen Khanda on account of firing made by appellants Surendra Singh, Rajendra Singh and Binda Mahto. The Investigating Officer also fund dead bodies of the above mentioned persons at the place of occurrence and prepared the inquest reports, seized several materials which will show that both the deceased were done to death at the place as pointed out by the prosecution. Likewise, the post-mortem reports as well as evidence of P.W. 8 Dr. S.C. Mishra would also show that death of both the deceased had taken place on account of firearm injuries. Therefore, simply on such inconsistency whether the fardbeyan was recorded in village Bangachchi or near the dead bodies of Suresh and Ramautar, it would not be safe to disbelieve the entire prosecution story. 10. Though Mr. Pandey also placed before us the evidence of P.Ws. 2, 3, 5, 7, 9 and 15 but he could not show any inconsistency so far the allegations of firings by appellants Surendra Singh, Rajendra Singh and Binda Mahto at the two deceased. 10. Though Mr. Pandey also placed before us the evidence of P.Ws. 2, 3, 5, 7, 9 and 15 but he could not show any inconsistency so far the allegations of firings by appellants Surendra Singh, Rajendra Singh and Binda Mahto at the two deceased. True it is, in the fardbeyan there is no allegation that Binda Mahto had also fired but in view of the evidence of as many as five eye-witnesses, either before the Police or in Court, that when Ramautar fell down after receiving gun shot injuries, appellant Binda Mahto also fired at him and fled away, the Court will have no option but to hold him guilty as well for the murder. 11. Mr. Pandey, while submitting on behalf of appellants Dwarika Mahton, Hari Mahton, Rama Nand Singh, Alakhdeo Singh alias Alakhdeo Mahton, and Basudeo Mahton alias Basudeo Singh, pointed out different paragraphs from the evidence of P.Ws. 2,5, 7 and 9 to show that save and except their presence at this place of occurrence, there is no evidence that these appellants also made attempt to cause any harm to the deceased persons or the prosecution witnesses or the Constable. All the eye-witnesses have accepted that these appellants neither fired their guns nor chased the members of the prosecution party. 12. In the background of the submission made above, a question may arise whether mere presence of the appellants who had assembled at the place of occurrence to protect the dead body ot Deosaran Mahton can hold them liable for the offence under Section 302 read with Section 149 I.P.C. Admittedly, as would appear from the case of prosecution that at the time when the informant and deceased Suresh Beldar and Ramautar Paswan, including constable Krishnadan Choudhary (P.W. 9) arrived at this place of occurrence all the appellants were found present near the dead body of Deosaran Mahton. This has also been admitted that the son of deceased Chaukidar Ramautar Paswan was found to be the main accused for the murder of Deosaran Mahto. Admittedly, Deosaran Mahton and appellant Surender, Rajendra, Binda, Dwarika and Hari Mahto and Rama Nand Singh were resident of Jeevanpur whereas appellant Alakhdeo Singh and Basudeo Singh oi village Bejpatti. The informant and both the deceased were resident of Bagachchi. Admittedly, Deosaran Mahton and appellant Surender, Rajendra, Binda, Dwarika and Hari Mahto and Rama Nand Singh were resident of Jeevanpur whereas appellant Alakhdeo Singh and Basudeo Singh oi village Bejpatti. The informant and both the deceased were resident of Bagachchi. On behalf of the appellants it has been urged that having heard that son of the Chaukidar Ramautar Paswan had killed Deosaran Mahto, these appellants had gone to protect the dead body. That apait, this not the case of prosecution or there is any evidence that either deceased Suresh Beldar or Ramautar Paswan or any other member of the prosecution party were present at the spot when accused persons arrived. Therefore, it cannot be presumed that accused persons had assembled at the place of occurrence to commit the murder of Suresh Beldar and Ramautar Paswan. 13. It would also appear from paragraph 43 of the evidence of P.W.2 that none of the appellants except Surendra Singh, Rajendra Singh, and Binda Mahton, either pointed out their guns towards the prosecution party or made any attempt to kill them. Similarly, P.W. 5 has also accepted in paragraph 16 and P.W. 7 in paragraph 22 of their deposition that none of these appellants made attempt to assault or to cause any harm to the members of the prosecution party including the deceased persons and constable. It would further appear from paragraph 16 of the evidence of P.W. 5 that on seeing the accused persons present near the dead body of Deosaran Mahto, he thought that they had assembled to protect the dead body. 14. Therefore, on a close scrutiny of the evidence of the prosecution witnesses, one can safely conclude that these appellants had not assembled near the dead body of Deosaran Mahto with intention to kill Ramautar Paswan or Suresh Beldar nor they had any intention to cause harm to the constable or the members of these prosecution party. 15. Learned counsel for the State, however contended that in view of the law laid down by the Supreme Court in several cases like in the case of Masalti V/s. State of Uttar Pradesh, AIR 1965 SC 202 , and this case of Ranbir Yadav V/s. State of Bihar, 1995 (4) SCC 392 : 1996 (1) East CrC 277 (SC), in order to convict an accused under Section 149 I.P.C. proof of the specific overtact may not be necessary. The prosecution is only obliged to proved that the accused persons had shared the common object of the unlawful assembly and in furtherance of that common object, some of the members of the assembly committed offence. Thus, mere presence of other appellants with appellants Rajendra Singh and Suresh Singh and Binda Singh being armed with guns, at the place of occurrence would be enough to establish their guilt under Section 149 I.P.C. 16. In my view, there cannot be any dispute with regard to the preposition formulated by the State counsel. But he should appreciate that in such cases it would be the duty of the prosecution to establish that all the members of unlawful assembly, knew it from before regarding the offence to the committed in prosecution of the common object of that assembly, in the case before me, there is no allegation that appellants had formed unlawful assembly with their common object to commit murders of the two deceased. Simple case of the prosecution is when they arrived near the appellants, two of them, namely, Surendra Singh and Rajendra Singh fired their guns and when Ramautar Paswan fell down, appellant Binda Mahto also fired. There is no allegation whatsoever against other appellants. Therefore, to convict the remaining appellants, the prosecution will have to establish that they had also shared the common object of the main accused to commit the murders. Reference in this regard can usefully be made to some of the decisions of the Apex Court in the case of Musa Khan and others V/s. State of Maharashtra, AIR 1976 SC 2566 , Devilal and another V/s. State of Rajasthan, AIR 1971 SC 1444 , Muthu Naicker and others V/s. State of Tamil Nadu, AIR 1978 SC 1647 and Sk. Ayyub and others V/s. State of Maharashtra, 1994 SCC Cri 1222. 17. From the facts of the case, it is clear that it was a sudden act of appellants Surendra Singh and Rajendra Singh and Binda to shoot at Suresh Balder and Ramautar Paswan. None of the other appellants have either participated in any manner or shared the intention of the above three appellants to commit such murders. 17. From the facts of the case, it is clear that it was a sudden act of appellants Surendra Singh and Rajendra Singh and Binda to shoot at Suresh Balder and Ramautar Paswan. None of the other appellants have either participated in any manner or shared the intention of the above three appellants to commit such murders. Therefore, appellants Dwarika Mahton, Hari Mahton, Rama Nand Singh, Alakhdeo Singh alias Alakhdeo Mahton and Basudeo Mahton alias Basudeo Singh cannot be held guilty for the offence under Section 302 read with 149 I.P.C. In support of such a finding, I can usefully quote the views expressed by the Apex Court in the case of Sk. Ayyub and others V/s. State of Maharashtra, (supra), facts of which are more or less identical to the present one. "7. **** ****** ***** The facts mentioned above are clearly to the effect that it was a sudden act on the part of A-1 who snatched the revolver and shot at the police party. No other accused participated in any manner in the attack on deceased 1 and 2 nor they have caused any injury to P.W. 7 and other constables. It is therefore, clear that the object of the unlawful assembly was to deter the police from discharging their duties namely to arrest A-1." 18. Therefore, mere presence of these appellants being armed with gun near the dead body of Deosaran Mahton, cannot make liable for any offence. It will also be necessary to notice whenever in any rural society, something unusual happens, particularly when local community was faction ridden and occasion fight occur amongst such factions, mere presence of certain persons armed with guns would not make them liable for an offence, which was committed by others. 19. I have noticed from the findings of the trial Court and submissions made on behalf of the appellants that Deosaran Mahto and appellants belong to one community whereas members of the prosecution party another. It has also come to light that both the communities were faction ridden and serious clashes between such groups were always noticed. Therefore, in my view, were presence of other appellants with the main accused persons will not make them guilty of the offence under Section 302 read with 149 I.P.C. 20. It has also come to light that both the communities were faction ridden and serious clashes between such groups were always noticed. Therefore, in my view, were presence of other appellants with the main accused persons will not make them guilty of the offence under Section 302 read with 149 I.P.C. 20. Next coming to the case of appellants Surendra Singh, Rajendra Singh and Binda, though I have found them guilty for the murder of Suresh Beldar and Ramautar Paswan, but a question may be relevant for consideration whether this case comes under the category of rarest of the rare cases for awarding death sentence. 21. Learned counsel contended that the trial Court has completely failed to notice any mitigating circumstances so as to come to a conclusion that this was one of those rarest of rare cases where death sentence was warranted. He contended that by the time Courts have in several case more than once, emphasised that for determining the proper sentence in case like present one, one should take into account all the aggravating and mitigating circumstances. In support of his contention, Mr. Pandey placed reliance on a decision of the Apex Court in the case of Anshad and others V/s. State of Karnataka, 1994 (4) SCC 301 : 1995 (1) East CrC 14. Relevant passage of the aforesaid report can be usefully noticed hereunder : "18 *** *** *** This Court has in cases more than one emphasised that for determining the proper sentence in a case like this while the Court should take into account the aggravating circumstances it should not overlook or ignore the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations which must be present to the mind of the Court of course, the High Court has the-power and jurisdiction to exercise in "rarest of the rare cases" for special reasons to be recorded. The Courts must be alive to the legislative changes introduced in 1973 through Section 354 (3) Cr. The Courts must be alive to the legislative changes introduced in 1973 through Section 354 (3) Cr. P.C. Death sentence, being on exception to the general rule, should be awarded in the "rarest of the rare cases" for special reasons to be recorded after balancing the aggravation and the mitigating circumstances, in the facts and circumstances of a given case, The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case fails in the category of "rarest of the rare cases." 22. Yet reliance was placed to another decision of the Apex Court in the case of Sk. Ayyub and others v. State of Maharashtra, (supra). It would appear that in the case of Sk. Ayyub and others two constables were killed as a result of firing made by appellant No. 1. But in course of hearing of the case, it was found that it was sudden act of appellant No. 1 who snatched the revolver and shot at the Police party. There was no evidence that the prosecution party had any premeditated plan to commit the murder of the constables. No doubt, the Court agreed with the submission of the State counsel that offence committed against public servants while discharging their duties, should be seriously viewed. But while coming to the question of sentence, the Court held that there are many other circumstances which one should take into consideration before awarding death sentence. Accordingly, death penalty of appellant No. 1 was reduced to the sentence of imprisonment for life. The view expressed by the Apex Court in the above mentioned case was more or less identical to that expressed in the case of Machhi Singh and others V/s. The State of Punjab, AIR 1983 SC 957 . 23. Thus, in my view, combined reading of the judgments referred to above would conclude that extreme penalty of death need not be inflicted except in a grave or cases of extreme culpability. The Court is required to take notice of the manner, the nature of allegation and magnitude of the crime. If upon taking over all view of all the circumstances, in the light, the Court comes to a conclusion that it was not a grave case of extreme culpability naturally the death penalty will be unwarranted. 24. The Court is required to take notice of the manner, the nature of allegation and magnitude of the crime. If upon taking over all view of all the circumstances, in the light, the Court comes to a conclusion that it was not a grave case of extreme culpability naturally the death penalty will be unwarranted. 24. I have also noticed that appellants had arrived near the dead body of Deosaran Mahto in order to protect it. When the prosecution party arrived there, even one of the accused asked them to go back. It has also come in evidence that the main assailant of Deosaran Mahto was not else, but the son of deceased Ramautar Paswan. It has also been noticed that P.Ws. 2 and 7 are the brothers of the deceased Chaukidar Ramautar Paswan. Therefore, it was quite possible for the appellants to assume that all such persons were going to take the dead body of Deosaran Mahto in order to create defence. 25. Thus, having given earnest consideration of the facts and circumstances of this case, I think that ends of justice will meet if the death sentence imposed against appellants Rajendra Singh and Surendra Singh is reduced to sentence of imprisonment for life. As appellants Binda has already been awarded life imprisonment by the trial Court, therefore, no further interference is necessary. 26. However, the conviction and sentence passed against appellants Dwarika Mahton, Hari Mahton, Alakhdeo Singh alias Alakhdeo Mahton and Basudeo Mahton are set aside and they are acquitted of the charges and are discharged from the liability of the bail bonds. 27. Coming to the case of appellant Rama Nand Singh, the allegation against him is that on his instigation, appellant Surendra fired at the deceased dafadar. But having regard to the views which I have expressed about other appellants, it appears not probable that this appellant had a premeditation or he connived with the main accused to commit the murder. At best, if can be held that he wanted to resist the dafadar and constable to perform their official duty. On behalf of this appellant, however, it has been contended that Chaukidar, dafadar or constable had no command of the higher authority to go to take the dead body of Deosaran Singh. But undisputedly, the area in question was lying in the jurisdiction of dafadar and Chaukidar. On behalf of this appellant, however, it has been contended that Chaukidar, dafadar or constable had no command of the higher authority to go to take the dead body of Deosaran Singh. But undisputedly, the area in question was lying in the jurisdiction of dafadar and Chaukidar. Therefore, this appellant can safely be convicted for the offence under Section 353 I.P.C. instead of Section 109 read with 302 I.P.C. Accordingly, his conviction under Section 109/302 I.P.C. is set aside and he is sentenced to serve for two years rigorous imprisonment for conviction under Section 353, I.P.C. as was also done by the Apex Court in the case of Sk. Ayyub and others V/s. State of Maharashtra, 1994 SCC Cri 1222 : 1994 (2) East CrC 465. 28. In result, with the aforesaid modification in the order of conviction and sentences of appellants Rajendra Singh, Surendra Singh, Binda Mahto and Rama Nand Singh, this appeal is partly dismissed, Bail bounds of appellants Binda mahto and Rama Nand Singh are cancelled. Appellants Rajendra Singh, Surendra Singh, Binda Mahton and Rama Nand Singh are directed to serve the remaining sentences. The trial Court shall not take all such steps to take appellants Binda Mahton and Rama Nand Singh into custody. 29. But the appeal is allowed so far appellants Dwarika Mahton, Hari Mahton, Alakhdeo Singh alias Alakhdeo Mahton and Basudeo Mahton alias Basudeo Singh are concerned. 30. With the aforesaid findings and observations, the reference is answered accordingly.