N. C. Jain, J.— All these Criminal Appeal Nos 35 of 2000, 36 of 2000, 37 of 2000 and 43 of 2000 are being disposed of together as they have arisen out of one Sessions trial culminating into the judgment of the learned Sessions Judge convicting all the appellants under section 302/148/149/458/149, 326/149, 325/149,325/324, 328/149, 325/149, 395 and 427 of the Indian Penal Code. Accused Dhaneswar Haloi has been sentenced to death whereas the other accused have been sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code. They have also been sentenced to undergo other terms of imprisonment under various other sections to which we need not make any reference as they are detailed in the judgment of the learned Sessions Judge. 2. The prosecution story as has been unfolded in the First Information Report, Ext 1 in short is that at 9 PM on 23rd of September, 1989 when the informant, who has appeared as PW 1, along with other members of the family were about to go to sleep after dinner, seven named accused persons Sri Dhaneswar Haloi Al; Sri Niron Haloi A2; Sri Dinesh Baishya (dead) A3; Sri Rup Kanta Haloi A3, Sri Ramen Haloi A10; Sri Ratneswar Haloi and Sri Harkanta Haloi A4 along with others armed with deadly sharp weapons as daggers, spears, daos etc trespassed into the complainant's residence and entered their dwelling houses by breaking open their doors and windows. It is further alleged in the First Information Report that the accused persons at the first instance inflicted grievous injuries upon the informant Monomoti Haloi, PW 1 and upon her father, Sri Moniram Haloi, Sri Swargaram Haloi, Smti Dhaneswari Haloi, Siriti Purnima Haloi and Sri Manju Haloi by staffing them with daggers and by hacking with daos. It is further alleged that they looted away the cash, articles and staffed her elder brother. Tarun Haloi to death with dagger, dao etc, before leaving their homes. 3. In order to sustain the allegations made in the First Information Report, the prosecution has produced as many as 17 witnesses out of whom four witnesses i.e. PW 1, PW 2, PW 4 and PW 5 are the eye witnesses regarding the occurrence .which took place inside the room where Tarun Haloi has been murdered. 3. In order to sustain the allegations made in the First Information Report, the prosecution has produced as many as 17 witnesses out of whom four witnesses i.e. PW 1, PW 2, PW 4 and PW 5 are the eye witnesses regarding the occurrence .which took place inside the room where Tarun Haloi has been murdered. It would not be out of place to mention at this stage that the father of the informant was killed outside in the verandah whereas Tarun Haloi was killed inside the room where the aforementioned eye witnesses were present. In short, the evidence of PW 1 is that there was a dispute between the complainant party and the accused Dhaneswar culminating into filing of a criminal complaint and out of grudge Dhaneswar along with his brother Niranjan and others entered the house at 9 PM. Elder sister Purnima, PW 2 saw two men standing behind their newly built house and she called out to her mother that she should come and see as to who were the men standing. Swargaram Haloi, the elder brother of Moniram came in response to the call of Purnima and went towards the road. At that time the accused persons came with daggers and spears and shouted by saying that they would see as to who would save Tarun on that day. They attempted to break the walls of the dwelling house, but having failed to make their entry into through the walls, four rods affixed with the window were broken and through this passage they entered the house. It has further come in the evidence of PW 1 that Purnima and the eye witnesses were there in that room where Dhaneswar, Niranjan, Rup Kanta and Dinesh (who has died during the investigation) entered. Dhaneswar and the other three persons were recognised by the eye witnesses as a lantern and a lamp were burning inside the room. It has further come in the evidence that having entered the house, the accused persons asked for Tarun who had hide himself in a 'Gash Pera' (a very heavy wooden box for keeping valuables). Since the accused persons did not find Tarun, they put the mosquito net on fire. They further told the four eye witnesses that they would not do any harm to them if Tarun was brought out. Upon this, the four eye witnesses replied that Tarun was not there. Since the accused persons did not find Tarun, they put the mosquito net on fire. They further told the four eye witnesses that they would not do any harm to them if Tarun was brought out. Upon this, the four eye witnesses replied that Tarun was not there. At that moment PW 1 was hit by Dhaneswar in the face with a rod making her bled from the forehead. Dhaneswar is alleged to have hit the elder sister and mother on the right hand. It is further stated in the statement of PW 1 that the back of the mother was trampled with-shoes by Dhaneswar upon which she with her hands folded in supplication requested Dhaneswar, but he kicked her in the mouth dislocating two other teeth. Dhaneswar is alleged to have beaten the younger sister as well. It was thereafter that the accused persons started pushing at the false ceiling of the house thinking that Tarun was hiding there making the ceiling collapse. Ultimately, they found Tarun in the 'Gash Pera' and on finding him there Dhaneswar said, 'Bastard' you are hiding here. He is alleged to have given a blow with the dagger when Tarun was still inside the Pera. Thereafter he was brought out from the Gash Pera and all the four accused persons gave him beating with rods, daos and daggers. It has further come in the statement of PW 1 that Dhaneswar in the end dismembered the penis of Tarun with a sickle which he was carrying in his waist. 4. So far the incident in the room is concerned, the aforementioned story which has come in the statement of PW 1 and has by and large been corroborated by other eye witnesses PW 2, PW 4 and PW 5 as well. As regards the killing of Moniram Haloi, the old man in the verandah, no eye witness out of the afore mentioned four eye witnesses to the occurrence has stated a word that they had seen the occurrence. 5. After going through the entire evidence Mr. As regards the killing of Moniram Haloi, the old man in the verandah, no eye witness out of the afore mentioned four eye witnesses to the occurrence has stated a word that they had seen the occurrence. 5. After going through the entire evidence Mr. JM Choudhury, learned senior counsel, appearing for the appellants in Criminal Appeal Nos 35 of 2000, 36 of 2000 and 37 of 2000 has with his usual fairness and frankness submitted that while the learned Sessions Judge has committed an error in holding the accused guilty of the commission of murder of Moniram Haloi, conceded at the same time that the four accused persons Dhaneswar Haloi, Niranjan Haloi, Rup Kanta Haloi and Dinesh (since dead) were guilty of the commission of murder of Tarun Haloi. At the same time Mr. Choudhury, has vehemently submitted that the present case in absence of aggravating circumstances cannot be said to be one of the rarest of the rare cases in which capital punishment is called for. The learned counsel for the appellants while pleading for commutation of death sentence to life imprisonment has cited certain judgments. The counsel for the State, Mrs K. Deka with equal vehemence argued that the present in one of the rarest of a rare case calling for imposition of maximum penalty. 6. Both the counsel for the parties, in support or against imposition of death sentence have relied upon the following judgments: 1. (1974) 4 SCC 443 , Ediga Anamma vs. State of Andhra Pradesh; 2. (1979) 3 SCC 646 , Rajendra Prasad vs. State of UP; 3. (1979) 3 SCC 714 , Bishnu Deo Shaw vs. State of WB; 4. (1979) 3 SCC 727 , Bachan Singh vs. State of Punjab; 5. AIR 1980 SC 898 , Bachan Singh vs. Union of India & others; 6. (1981) 3 SCC 574 , Ummilal Singh & others vs. State of Punjab; 7. AIR 1983 SC 957 , Machhi Singh & others vs. State of Punjab, 8. (1985) 1 SCC 505 , State of UP vs. MK Anthony; 9. AIR 1988 SC 1883 , Kehar Singh & others vs. The State (Delhi Adm); 10. (1996) 6 SCC 250 , Kamta Tiwari vs. State of MP; 11. 1999 Crl LJ 1836, Nirmal Singh & another vs. State of Haryana; 12.1999 Crl LJ 3124, State of Tamil Nadu vs. Nalini & others; 13. AIR 1988 SC 1883 , Kehar Singh & others vs. The State (Delhi Adm); 10. (1996) 6 SCC 250 , Kamta Tiwari vs. State of MP; 11. 1999 Crl LJ 1836, Nirmal Singh & another vs. State of Haryana; 12.1999 Crl LJ 3124, State of Tamil Nadu vs. Nalini & others; 13. AIR 1999 SC 1926 , Mahendra Nath Das @ Gobinda Das vs. State of Assam; 14. AIR 1999 SC 1860 , Jai Kumar vs. State of MP. 7. 1999 Crl LJ 1836, Nirmal Singh & another vs. State of Haryana; 12.1999 Crl LJ 3124, State of Tamil Nadu vs. Nalini & others; 13. AIR 1999 SC 1926 , Mahendra Nath Das @ Gobinda Das vs. State of Assam; 14. AIR 1999 SC 1860 , Jai Kumar vs. State of MP. 7. A Division Bench of this Court in Criminal Appeal No.120 (J) of 1996 Shri Dina Bawri vs. State of Assam decided on 8.5.2000 after discussing the aforementioned judgments re-enunciated the following principles : (i) According to the changed legislative policy as is patent on the face of section 354 (3) of the Criminal Procedure Code normal punishment for murder is imprisonment for life; whereas death penalty is an exception; (ii) The Court is mandatory required to give special reasons while imposing extreme penalty of law i.e. death; ' (iii) The Court must hear the accused on the question of sentence; (iv) Although section 235 (2) of the Criminal Procedure Code does not contain any specific provision for recording evidence and it only provides for hearing of the accused regarding sentence, yet it is implicit in this provision that in case a request is made either by the prosecution or the accused or by both, the Court should provide the party or parties concerned an opportunity of producing evidence on the point of sentence; (v) While providing an opportunity to the parties to lead evidence regarding sentence, the Court will have to take care that hearing on the question of sentence is not turned into an instrument for unduly protracting the proceedings and that the claim of proper hearing should be harmonized with the requirement of expeditious disposal of the case; (vi) The present legislative policy discernible from section 235 (2) read with section 354 (3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under section 302 Penal Code, the Court should not confine its circumstances 'principally' or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal; (vii) While ascertaining the existence of absence of 'special reasons' the Court must pay due regard to both the crime and the criminal; (viii) What is the relevant weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case; (ix) Judges should never be blood thirsty. Hanging of murderers has never been too good for them; (x) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (xi) Before opting for death penalty the circumstances for the 'offender' also require to be taken into consideration along with the circumstances of the crime; (xii) The Court must draw a balance sheet of aggravating and mitigating circumstances and while doing so the mitigating circumstances must be accorded full weightage and a just balance sheet has to be struck between the aggravating and mitigating circumstances before exercising the option between death penalty and life imprisonment; (xiii) While exercising the option between the death sentence and life impri­sonment the Court shall keep in mind the mitigating circumstances as suggested by Dr. Chitaley which have been noticed in Bachan Singh's case (supra); (xiv) The Court should award death sentence only in rarest of rare case. 8. It is in the light of the aforementioned principles that this Court has to decide whether the present case is one of the rarest of a rare case or not. All the accused persons are alleged to have given blows to the deceased Tarun. The only additional blow attributed to Dhaneswar is that he had given a dagger blow when he was inside the 'Gash Pera'. This, in our considered view, would be no aggravating circumstance making his case distinguishable with the cases of the other accused persons. The fact that he was leading others in committing the crime can also be not said to be such an aggravating circumstance that he deserves extreme punishment of death. As has. been seen above while deducing the guidelines as laid down by the Apex Court, there has to be something uncommon in the commission of the crime before awarding death sentence. The manner in which the crime has been committed in the instant case is common in so many murder cases. Had it been proved by the prosecution that penis of Tarun Haloi was chopped off, it could have been said to be an aggravating circumstance. However, in the. instant case it has not been proved by the prosecution that the private part of the deceased was chopped off. The learned Sessions Judge has also found that eye witnesses have exaggerated on this point. The investigating Officer did not find the private part missing at the time of holding the inquest. However, in the. instant case it has not been proved by the prosecution that the private part of the deceased was chopped off. The learned Sessions Judge has also found that eye witnesses have exaggerated on this point. The investigating Officer did not find the private part missing at the time of holding the inquest. The doctor performing the post mortem examinations also has not noticed any such injury. As has been observed above, Dhaneswar could have been held to have acted in a brutal manner if he had been found guilty of chopping the private part of the deceased. In view thereof, we do not find the present case to be one of the rarest of a rare case. It can also not be held on first principle that the sentence of life imprisonment on the facts of the present case would be quite inadequate. This is what is the mandate of law as has been laid down by the Apex Court. 9. Coming to the proof regarding the killing of Moniram Haloi, it would be sufficient to observe that nobody has admittedly seen the occurrence. The dying declaration which is alleged to have been made to the aforesaid eye witnesses cannot be relied upon even for a moment for inherent contradictions. PW 1 at one stage stated that her father told her that "small boys physically assaulted him" and that he could not tell their names. In the next breath she stated that 'father named Rup Kanta and Niranjan'. PW 2 in her statement stated that her father told them that Rameswar, Ratneswar and Har Kanta had attacked him. But at the same time she has stated that he was able to speak a little. PW 4 stated that her father named Ratna and Padma as two persons who had given him injuries. She also admitted that father's words were not clear and she could not make out anything. 10. It is clear from the statements of the aforesaid eye witnesses that only one name of Ratneswar is common in the statement of the two eye witnesses i.e. .PW 2 and PW 4. She also admitted that father's words were not clear and she could not make out anything. 10. It is clear from the statements of the aforesaid eye witnesses that only one name of Ratneswar is common in the statement of the two eye witnesses i.e. .PW 2 and PW 4. It appears to us that the father was not in a position to speak clearly and that the version as given by PW 1 in the first instance that small boys had killed him was the correct version and he did not name anyone at all. In any case this Court is not in a position to place any reliance upon the dying declaration. Even the learned Sessions Judge has not placed reliance upon the dying declaration or the statement of any eye witness. He has convicted Har Kanta Haloi, Santi Ram Das, Kailash Haloi, Padma Ram Talukdar, Harsha Haloi, Prasanna Haloi and Rameswar Haloi presuming that the old man was assaulted by some of the rioters of the same group. The observations of the learned Sessions Judge with which we disagree are reproduced below : “PW 1 says that when her father made a dying declaration, he named accused Niranjan, Rupkanta as his assailants. But according to PW 2 he further stated that accused Rameswar, Ratneswar and Harakanta had assaulted him. On the other hand, according to PW 3 her father only told her without naming anybody of the persons arraigned, that the 'young boys' of the group had assaulted him. Therefore, it is difficult to accept the alleged dying declaration of deceased Moniram Haloi identifying his assailants. However, the story of alleged dying declaration that he had been assaulted by the same group of offenders who had ransacked his house on that night can be accepted as true. Besides, deceased Moniram Haloi was injured in the same incident and thereafter it can safely be presumed that he was assaulted by some of the rioters of the same group.” Our basic reason of .disagreement with the learned Sessions Judge is that none of the eye witnesses had seen the act of assault upon Moniram Haloi and none could be recognised by them. That apart, in a criminal case, presumption can not be a substitute of proof. 11. For the reasons recorded above, the aforementioned appellants deserve to be acquitted by giving them benefit of doubt. 12. That apart, in a criminal case, presumption can not be a substitute of proof. 11. For the reasons recorded above, the aforementioned appellants deserve to be acquitted by giving them benefit of doubt. 12. Adverting to the guilt of the four accused persons out of whom one Dinesh had already died during investigation, we have already noticed in the earlier part of the judgment that Mr. JM Choudhury nas submitted before us that they were present in the room where the incident of killing had taken place. Apart from his concession, their guilt is otherwise proved by consistent version given by as many as four eye witnesses who were themselves injured. Discrepancy here and there would certainly not make them unworthy of credence. We, therefore, find them guilty of the charge under section 302 IPC. 13. For the reasons recorded above, we do not confirm the death reference No.l of 2000 and commute the sentence of Dhaneswar to life imprisonment (RI). Death reference would stand rejected. Criminal Appeal No.35 of 2000 is partly allowed and death sentence of Dhaneswar Haloi is commuted to one life imprisonment (RI) with a fine of Rs.5,000. In default of payment, he shall undergo further RI for a period of six months. The fine if realised be given to the family of Tarun Haloi. 14. Criminal Appeal No.36 of 2000 is also partly allowed. Accused Kara Kanta Haloi is acquitted where as the appeal of Rup Kanta Haloi and Niranjan haloi is rejected and their sentences imposed by the trial Court on various counts is affirmed. The Criminal Appeal No.37 of 2000 of Santi Ram Das, Kailash Haloi and Padma Ram Talukdar is allowed in toto and the accused persons are acquitted on benefit of doubt. 15. Criminal Appeal No.43 of 2000 is also allowed and the appellants Harsha Haloi, Prasanna Haloi and Rameswhar Haloi are also acquitted on benefit of doubt.