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Rajasthan High Court · body

2001 DIGILAW 970 (RAJ)

State of Rajasthan v. Kanwar Lal and 10 Others

2001-05-30

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–The appellants were the accused on the file of the learned Additional Sessions Judge Aklera (Distt. Jhalawar) bearing Sessions Case No. 16 of 1996. They were found guilty, convicted and sentence as under- Name of the accused appellant Convicted under Section Sentenced awarded 1. Kanwar Lal S/o Mohan Lal 302/149 IPC Death sentence and fine of Rs. 5000/- (in default to undergo one year RI) 2. Mangilal S/o Mohan Lal ^ 3. Harak Chand @ Harchand s/o Kanwar Lal ^ 4. Pyarji S/o Kanwar Lal 148 IPC One year RI and fine of Rs. 1000/- (in default to further undergo one months RI) 5. Gangaram S/o Ram Ratan 6. Hari Singh S/o Ram Ratan 7. Sheo Singh S/o Ram Ratan 8. Chhitar S/o Hari Kishan Three months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 9. Nenu Lal S/o Issar 10. Chhitar S/o Mangi Lal 11. Shyam Lal S/o Amar Singh 325/149 IPC Five years RI and fine of Rs. 1000/- (in default to further undergo one month RI) 323/149 IPC Six months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 12. Har Kishan S/o Shyam Lal 302/149 IPC Life imprisonment & fine of Rs. 5000/- (in default to undergo one year RI) 13. Chhitar S/o Mangi Lal Dabri ^ 14. Gulab Chand S/o Kanwar Lal 148 IPC One year RI and fine of Rs. 1000 (in default to further undergo one month RI) 15. Sunder Lal S/o Issar 16. Nathu Lal S/o Dhuli Lal 17. Nenu Lal S/o Dhuli Lal 342 IPC Three months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 18. Bhura S/o Babru 19. Phool Chand S/o Babru 20. Babu Lal s/o Babru 325/149 IPC Five years RI and fine of Rs. 1000/- (in default to further undergo one month RI) 21. Daula s/o Babru 22. Kanwar Lal s/o Prabhulal 23. Phool Chand @ Phool Singh s/o Mangilal 323/149 IPC Six months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 24. Nathu s/o Amarji All the sentence were directed to run concurrently. (2). 1000/- (in default to further undergo one month RI) 21. Daula s/o Babru 22. Kanwar Lal s/o Prabhulal 23. Phool Chand @ Phool Singh s/o Mangilal 323/149 IPC Six months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 24. Nathu s/o Amarji All the sentence were directed to run concurrently. (2). Learned Additional Sessions Judge Aklera made reference (bearing Death Reference No. 2/1999) under Section 366 Cr.P.C. for confirmation of death sentence awarded to accused appellants Kanwar Lal s/o Mohan Lal, Mangi Lal s/o Mohan Lal, Harak Chand @ Harchand s/o Kanwar Lal, Pyarji s/o Kanwar Lal, Gangaram s/o Ram Ratan, Hari Singh s/o Ram Ratan, Sheo Ram s/o Mangilal, Chhitar s/o Hari Kishan, Nenu Lal s/o Issar, Chhitar s/o Mangi Lal Chauhan and Shyam Lal s/o Amar Singh, who also assailed the findings of the learned trial Judge alongwith thirteen others, by preferring two appeals under section 374(2) Cr.P.C. bearing Nos. D.B. Cr. (Jail) Appeal No. 749/1999 and D.B. Criminal Appeal No. 761/1999. During the pendency of these appeals, another appeal by all the twenty four appellants was filed which was treated as defective and entered as D.B. Criminal Appeal (Defect) No. 508/1999). We ordered to tag it with the other appeals. (3). In view of provisions contained in sections 366 and 368 Cr.P.C. we straight away proceed to analyse the entire material on record. It will be apposite to note at the outset the salient features of the prosecution case laid against the appellants. Written report (Ex.P.21) came to be lodged by informant Badri Lal S/o Shyam Lal (PW.18) with the Police Station Javar at 7.30 p.m. on October 22, 1992 with the averments that as many as 24 persons (named in the report) who belonged to village Parthipura armed with weapons like lathi, Kalsi, Ballam and sword, started beating them and killed Daula s/o Shyam Lal, Ram Ratan s/o Shyam Lal, Phool Singh s/o Shyam Lal and Hari Singh s/o Shyam Lal. Informant Badri Lal and Kalu sustained injuries. Witnesses Amar Singh, Mangi Lal and Amar Singh Gujar of village Parthipura who were present there, intervened in between. Police Station Javar registered a case bearing No. 85/92 under Sections 147, 148, 149, 341, 323 and 302 IPC and investigation commenced. FIR (Ex.P.22) was sent to Judicial Magistrate Aklera. Informant Badri Lal and Kalu sustained injuries. Witnesses Amar Singh, Mangi Lal and Amar Singh Gujar of village Parthipura who were present there, intervened in between. Police Station Javar registered a case bearing No. 85/92 under Sections 147, 148, 149, 341, 323 and 302 IPC and investigation commenced. FIR (Ex.P.22) was sent to Judicial Magistrate Aklera. Panchanama of the dead bodies of all the four deceased were drawn and autopsy of the dead bodies was conducted. Site was inspected and memo was sketched. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Accused were arrested and at their instance weapons of offence were recovered and sealed. Blood stained soil and clothes were also seized and sealed and all the packets were sent to FSL, Report of FSL (Ex.P.88) was received. On conclusion of investigation charge sheet was filed against 24 accused appellants. (4). In due course the case came up for trial before the learned Additional Sessions Judge Aklera. The trial court framed charges under Secs. 148, 302 or 302/149, 325 or 325/149, 323 or 323/149 IPC against the accused appellants who denied charges and claimed trial. The prosecution examined as many as 21 witnesses thereafter the explanation of the accused appellants under Section 313 Cr.P.C. was recorded. The accused denied the allegations and pleaded innocence. No evidence in defence was led. Learned trial judge after hearing the final submissions convicted accused appellants as indicated hereinabove. (5). At the outset it may be noticed that superstructure of the prosecution case is built on the central evidence of four eye witnesses namely Amar Singh (PW.1), Mangilal (PW. 2), Sunder Lal (PW.17) and Badri Lal (PW.18). This evidence is sought to be corroborated by the testimony of Om Prakash (PW.19) and Buddha Ram (PW.21) who investigated the case and recovered the weapons of offence at the instance of accused persons. (6). Let us analyse the evidence led by the prosecution. Coming to the testimony of informant Badri Lal (PW. 18) it is to be noticed that he is the real brother of all the four deceased Daula, Ram Ratan, Phool Singh and Hari Singh. Injury report of Badi Lal is Ex.P.10 according to which he sustained as many as two simple injuries thus- (i) Lacerated wound 1 x 1/4 x 1/4 over upper 1/3 of left arm. (ii) Abrasion 1 x 1-1/2 over upper 1/3 of the forearm. Injury report of Badi Lal is Ex.P.10 according to which he sustained as many as two simple injuries thus- (i) Lacerated wound 1 x 1/4 x 1/4 over upper 1/3 of left arm. (ii) Abrasion 1 x 1-1/2 over upper 1/3 of the forearm. In his deposition Badri Lal stated that on hearing from Karan Singh (the brother in law of Jamna) that Jamna was beaten, he alongwith Daula, Ram Ratan Phool Singh. Hari Singh (since deceased) and Sunder lal proceeded towards Dhabdeh. Jamna met them at village Parthipura near the house of Ram Ratan. On being asked Jamna informed them that he was being manhandled. When they were returning back with Jamna, the accused appellants armed with lethal weapons like Farsi, Sword, Ballam and lathi obstructed their way and started inflicting blows on their persons that resulted into instant death of Daula, Ram Ratan, Phool Singh and Hari Singh. He (Badri Lal) and Sunder Lal sustained injuries. In his cross-examination Badri Lal deposed that- ``KIS KIS MULJIM NE MRITKON KE KAHAN KAHAN MARI NAHIN BATA SAKTA LEKIN GYARHA AADMIYON NE MAR PIT KI THI BAD MAIN BAKI MULJIMAN BHI AA GAYA THE English Translation- (I cannot say as to which accused caused injury to which deceased but it is correct to say that at the outset eleven persons were involved in the marpit and thereafter other accused joined them.) In regard to injuries sustained by him Badri Lal stated that Kanwar Lal inflicted blow with Ballam on his person. (7). Sunder Lal (PW.17) is also an injured eye witness. Injury report of Sunder Lal is Ex.P.11 according to which he sustained two abrasions measuring 3/4 on Index finger and Partial region and fracture over right palm vide X ray report (Ex.P.12). In his deposition Sunder Lal stated that on being informed by Karan Singh that Jamna was beaten, he alongwith Ramratan, Daula, Phool Singh and Hari Singh had gone in search of Jamna. On the way of village Parthipura the incident had taken place. In the beginning Chhitars, three in number, two were the sons of Mangilal and, fathers name of the third was Hari Kishan along with Hari Singh, Ganga Ram, Nannu, Harchand, Sheo Ram, Gulabchand, Pyara and Kanwar Lal came. Kanwar Lal was armed with Ballam and Sheo Ram was having sword and all other nine persons were armed with Farsis. They started inflicting the blows. Kanwar Lal was armed with Ballam and Sheo Ram was having sword and all other nine persons were armed with Farsis. They started inflicting the blows. Thereafter other accused joined them. He could not see the injuries on the persons of the deceased because of the crowd but Chhitar inflicted Farsi blow on his head. In his cross- examination Sunder lal stated that he did not know as to two caused injury to whom. He further deposed that Chhitar inflicted injury on his person from the sharp side of Farsi. The incident had occurred on the way. At the time of institution of report they did not know the names of assailants. (8). Amar Singh (PW.1) deposed that only Kanwar Lal, Mangilal, Harchand, Pyara, Gagoliya, Hari Singh, Sheoram, Chhitar, Nannu and Shyam quarreled with Daula, Hari Singh, Phool Singh, Ram Ratan, Badri and Sundra that resulted in to death of Daula, Ram Ratan Harisingh and Phool Chand. The witness was declared hostile. (9). Mangi Lal (PW.2) stated that people belonging to villages Dhanwas and Parthipura fought together. Daula, Ramratan, Badri Lal, Sundra, Jamna Lal, Hari Singh, Phool Singh and Ram Singh were from Dhanwas whereas Chhittar s/o Mangi Lal Dhabri, Kanwar Lal, Sheoram, Gulab, Pyara, Ganga Ram, Hari Singh, Nannu, Chhitar s/o Hari Kishan, Kanwar Lal s/o Prabhu Lal, Hari Kishan and Shyam Lal belonged to village Parthipura. People of Parthipura were armed with lathis and Gandasis and people of Dhanwas had lathies and Farsis. People of Dhanwas were going towards Parthipura. The incident and occurred after both the sides started pelting stones at each other near the huts of Shyam Lal and Bal Ram. 6. Dr. Ramesh Chand Dubey (PW.9) conducted post mortem of the deadbodies. As per post mortem report Ex.P.6 deceased Daula sustained as many as seven antimortem injuries thus- 1. Verticle Incised wound 3 x 2 x 2 over mid of the frontol bone of the Head. 2. Swelling 2 x 2 over right shoulder joint. 3. Abrasion 1 x 1/2 over pinna of Rt. ear. 4. Hematoma 2 x 2 over left partial bone. 5. Abrasions over back back of the neck. 6. Lacerated wound 1 x 1/4 x 1/4 over mastrid bone. 7. Verticle Incised wound 2 1/2 x 1/2 x 1/2 radius bone. The cause of death was coma as a result of head injury. 7. ear. 4. Hematoma 2 x 2 over left partial bone. 5. Abrasions over back back of the neck. 6. Lacerated wound 1 x 1/4 x 1/4 over mastrid bone. 7. Verticle Incised wound 2 1/2 x 1/2 x 1/2 radius bone. The cause of death was coma as a result of head injury. 7. Deceased Ramratan as per postmortem report Ex.P/7 sustained following antimortem injuries- (1) Transverse lacerated wound 2 x 1 1/2 x 1/2 over left parital bone. (2) Abrasion 1-1/2 x 1 over left clasicle. (3) Lacerated wound 2 x 1 x 1 over Rt. leg. (4) Abrasion 1 x 1 over Rt. Knee joint. The cause of death was coma as a result of head injury. 8. Deceased Hari Singh sustained six injuries as per post mortem report Ex.P.8. thus- (i) Clean cut verticle incised wound 5 x 1/2 x 1/2 over frontal bone. (ii) Abrasion 1 x 1/2 over left elbow. (iii) Oblique incised wound 44 x 1 x 2 over left thigh (iv) Abrasion 6 x 1 over upper 1/3 of left leg. (v) Abrasion 1 over lower 1/3 of right thing. (vi) Abrasion 1/2 x 2 over left leg. The cause of death was coma as a result of head injury. 9. As per post mortem report Ex.P.9 deceased Phool Singh sustained only one injury on head as under- Clear cut, oblique incised wound 6 x 4 x 4 over left parital bone. The cause of death was coma as a result of head injury. Dr. Ramesh Chand Dubey in his cross-examination stated that he also examined the injuries sustained by Ganga Ram s/o Ram Ratan Gujar on the day when he conducted postmortem of the dead bodies. (10). In their depositions Om Prakash (PW. 19) and Buddha Ram (PW.21) gave details of the investigation and proved the documents. Buddha Ram however in his cross-examination stated that written report was produced before him by the informant at 7.30 p.m. but he could not record the time inadvertently over it. He did not inquire about the overwriting made in the report. Because of paucity of police force he could only manage to send the report before the Magistrate next day. Village Dhanwas was at a distance of around one and half furlong from the place of occurrence. (11). That brings us to the rival submissions. Mr. He did not inquire about the overwriting made in the report. Because of paucity of police force he could only manage to send the report before the Magistrate next day. Village Dhanwas was at a distance of around one and half furlong from the place of occurrence. (11). That brings us to the rival submissions. Mr. A.K. Gupta, learned counsel appearing for the appellants canvassed that there was an unexplained delay in lodging the FIR. The incident had taken place at about 10-11 a.m. the police station was 16km. away but the FIR was lodged at 7.30 p.m. The genesis and origin of the occurrence has been suppressed by the prosecution. Accused Ganga Ram sustained injury but opportunity to produce defence witness was not given to the appellants. Placing reliance on Arrest memo of accused Ganga Ram (Ex.P.23) it was contended by the learned counsel that Gangaram sustained head injury and the accused acted in their right of private defence. The presence of eye witnesses at the time of occurrence is highly unnatural. Their statements under Section 161 Cr.P.C. were recorded after a long delay. The eye witnesses are chance witnesses and their statements are full of contradictions and can not be believed. The manner in which the occurrence is alleged to have been taken place suggests the possibility of over implication of accused persons. In a case where the accused pleads the right of private defence, the accused can not be convicted with the aid of Section 149 or 34 IPC. The trial judge did not put all the material before the accused in their examination under Section 313 Cr.P.C. The case does not come within the purview of arrest of rare cases and awarding death sentence of the accused is bad in law. The case law cited by the learned counsel shall be considered in the later part of the judgment. (12). Per contra Mr. R.P. Meena, learned P.P. for the State contended that all the appellants took law in their own hands and eliminated four real brothers. They formed unlawful assembly and in furtherance to the common object killed four persons. Defence of private defence was feebly raised before the trial judge. No defence witness was examined. Even the injury report of accused Ganga Ram was not proved. Opportunity to produce defence witnesses was given to the appellants but they did not materialise it. They formed unlawful assembly and in furtherance to the common object killed four persons. Defence of private defence was feebly raised before the trial judge. No defence witness was examined. Even the injury report of accused Ganga Ram was not proved. Opportunity to produce defence witnesses was given to the appellants but they did not materialise it. The application to produce injury report was filed with the object to delay the trial and the same was rightly rejected by the trial judge, Authorities that were cited by the learned PP shall be dealt with at appropriate juncture. (13). It is well settled that direct testimony of witnesses, which is otherwise consistent should not ordinarily be rejected on the ground that they are partisan or interested witnesses unless surrounding circumstances discredit their version. In State of Karnataka vs. K. Yarappa Reddy (1), their Lordships of the Supreme Court indicated thus- (Para 26) ``Criminal courts should not expect a set reaction from any eye witness on seeing an incident like murder. If five persons witnesses one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye witness can make. It is fallacious to suggest that PW.11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural. (14). Keeping the aforequoted principles in mind we now proceed to consider the submissions of learned counsel for the appellants. The first contention raised by Mr. A.K. Gupta learned counsel was that the FIR itself appears to have been lodged not at the time mentioned in it but much later and after due deliberations. Counsel derived support to this argument from the fact that though it was lodged at 7.30 p.m. on October 22, 1992 but was received by the Magistrate at 4.30 p.m. on October 23, 1992, The delay in despatch of the FIR to the Magistrate not having been satisfactorily explained, there is a manifest defect in the prosecution case which throws a great deal of suspicion on the truth of the prosecution version. We find this argument fallacious, while it is true that under Section 157 Cr.P.C. the FIR should be despatched forthwith but in the facts and circumstances of the case where four persons were murdered the investigating officer Buddha Ram (PW.21) categorically stated that because of paucity of police force he could only manage to send FIR before the Magistrate next day. We are satisfied that the prosecution has given a very cogent and reasonable explanation for the delay in despatch of the FIR. (15). In so far as contention in regard to right of private defence is concerned we find that accused appellants Ganga Ram also sustained injuries during the incident. This fact was admitted in the cross-examination by Dr. Ramesh Chand Dubey (PW. 9). A look at the arrest memo of Ganga Ram (Ex.P.23) also reveals that at the time of the arrest there was an injury on his head. Mr. A.K. Gupta, learned counsel urged that the accused appellants were the assailants and they intended to kill Gangaram and started inflicting injuries on his person, it was because of this attack that the accused appellants acted in their right of private defence. As the injuries on the person of accused Gangaram were not explained and the opportunity to produce the injury report was not afforded the accused appellants could not have been convicted with the aid of Section 149 IPC. Reliance was placed on State of Bihar vs. Nathu Pandey (2), wherein it was indicated in para 8 thus- ``In order to attract the provisions of Section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of common object of the assembly. Under the fourth clause of Section 141 an assembly of five or more persons is unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force to any person. Section 141 must be read with Section 96 to 106 dealing with the right of private defence. Under Section 96 nothing is an offence which is done in the exercise of right of private defence. The assertion of right of private defence within the limit prescribed by law cannot fall within the expression ``to enforce any right or supposed right in the fourth clause of Section 141. (16). Under Section 96 nothing is an offence which is done in the exercise of right of private defence. The assertion of right of private defence within the limit prescribed by law cannot fall within the expression ``to enforce any right or supposed right in the fourth clause of Section 141. (16). After analysing the entire material on record we find that in the instant case right of private defence was not available to the accused. The four real brothers Daula, Ramratan, Harisingh and Phool Singh lost their lives. Though each deceased sustained only one fatal injury on the head and other injuries were on the non-vital parts of the body, yet nature of the injuries demonstrates that the fatal blows were mercilessly inflicted From the facts and circumstances of the case we find that the accused did not have reasonable apprehension that death or bodily injury could be caused to all of them or one of them. The accused were not justified in causing the death of four persons. Strangely accused appellant Gangaram did not plead the right of private defence in his statement recorded under Section 313 Cr.P.C. Gangaram deposed thus- (English Translation) ``I was guarding the crop. All the four deceased asked about Badrilal and Sunder Lal, when I declined, they started beating me. I raised hue and cry and people of M.P. (Madhya Pradesh) pushed the deceased by pelting stones. We fail to understand as to how the argument of right of private defence is of any help to the appellants in view of statement of Ganga Ram recorded under Section 313 Cr.P.C. It appears from the statement of accused Gangaram that the defence of the accused appellants before the trial court was that the deceased were murdered by unidentified persons belonging to Madhya Pradesh and not by the accused appellants. (17). Conjoint reading of the statements of informant Badri Lal (PW.18), Sunder Lal (PW.17) Amar Singh (PW.1) & Mangi Lal (PW.2) goes to show that in the beginning eleven persons took part in the marpit. Sunder Lal (PW.17) is an injured eye witness. We find his testimony honest and true. There is a consistency in the statements of all the four eye witnesses in so far as the initial participation of eleven accused are concerned. Testimony of Sunder Lal could not be shattered in the cross-examination. Sunder Lal (PW.17) is an injured eye witness. We find his testimony honest and true. There is a consistency in the statements of all the four eye witnesses in so far as the initial participation of eleven accused are concerned. Testimony of Sunder Lal could not be shattered in the cross-examination. Sunder Lal categorically named the following eleven persons who were the assailants- (1) Kanwar son of Mohan Lal, (2) Harchand (3) Pyarji (4) Gangaram (5) Hari Singh (6) Sheo Ram (7) Chhitar son of Hari Kishan (8) Nenu Lal son of Issar (9) Chhitar son of Mangi Lal Chauhan (10) Chhitar son of Mangi Lal Dhabri (11) Gulab Chand & Other 13 appellants came afterwards and they were also implicated as assailants by the prosecution. (18). In Musa Khan vs. State of Maharashtra (2), their Lordships of the Supreme Court indicated in para 5 thus- ``It is well settled that a mere innocent presence in an assembly of persons, as for example bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused share the common object of the assembly. Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assessably at the these stages. (19). We have closely scrutinised the evidence of the eye witnesses and we find that the prosecution has failed to prove that following 13 appellants were the members of the unlawful assembly and shared the common object of the assembly at all the crucial stages. Informant Badri Lal (PW. (19). We have closely scrutinised the evidence of the eye witnesses and we find that the prosecution has failed to prove that following 13 appellants were the members of the unlawful assembly and shared the common object of the assembly at all the crucial stages. Informant Badri Lal (PW. 18) though in his examination in chief named all the 24 appellants as assailants yet in his cross-examination he classified that initially eleven persons were involved in the marpit and other had joined them afterwards. Sunder Lal (PW. 17) also narrated the said version. Amar Singh (PW. 1) who was declared hostile also deposed that only ten persons had quarreled with the deceased. Mangilal (PW.2) introduced a theory of free fight between the villagers of two villages Dhanwas and Parthipura. As per the statement of injured eye witness Sunder Lal (PW.17) following 13 persons did not take part in the offence- (1) Mangi Lal (2) Shyam Lal (3) Har Kishan (4) Sunder Lal (5) Nathu Lal (6) Nenu Lal son of Dhulilal (7) Bhura (8) Phool Chand son of Babru (9) Babu Lal (10) Daula (11) Kanwar Lal son of Prabhulal (12) Phool Chand son of Mangi Lal (13) Nathu. (20). We are thus inclined to hold that the prosecution has failed to establish charges against these 13 appellants beyond reasonable doubt. In so far as other accused persons named in para 17 of the judgment are concerned we find that after seeing the deceased persons coming on the public way they formed unlawful assembly. The common object to eliminate Daula, Ramratan, Phool Singh and Hari Singh did develop co-instanti and injuries were inflicted with such a force that all the four persons died at the spot. These appellants shared the common object of unlawful assembly to eliminate all the four brothers at all the crucial stages of the occurrence. These appellants also shared common object in inflicting injuries on the persons of Badri lal and Sunder Lal and charges under Sections 302/149, 148, 342, 325/149 and 323/149 stand proved against them. (21). That takes us to the quantum of sentence. For deciding just and appropriate sentence to be awarded for an offence the aggravating and mitigating factors are to be delicately balanced in a dispassionate manner. (21). That takes us to the quantum of sentence. For deciding just and appropriate sentence to be awarded for an offence the aggravating and mitigating factors are to be delicately balanced in a dispassionate manner. Honble Supreme Court in Bachan Singh vs. State of Punjab (4), propounded that sentence of death should not be passed except the ``arrest of rare case. The learned trial judge awarded life imprisonment to appellants Gulab Chand and Chhitar son of Mangi lal Dhabri though there is no distinction in their case and the case of Kanwar Lal son of Mohan Lal, Harak Chand, Pyarji, Gangaram, Hari Singh, Sheoram, Chhitar s/o Harikishan, Nenu Ram son of Issar and Chhitar son of Mangilal Chauhan, More so there is no evidence against Mangi Lal son of Mohan Lal and Shyam Lal son so Amar Singh that they were amongst the eleven assailants yet they have been awarded death sentence. Taking the totality of circumstances of the case we are of the view that this case is not amongst the ``rarest of rare case. While confirming their conviction, we are constrained to commute the sentence of death passed on the appellants Kanwar Lal son of Mohan Lal, Harak Chand s/o Kanwar lal, Pyarji son of Kanwar Lal, Gangaram son of Ramratan, Hari Singh s/o Ram ratan, Sheoram s/o Mangilal, Chhitar s/o Hari Kishan, Nenu Lal son of Issar and Chhitar s/o Mangi lal Chauhan into one for imprisonment for life. Appellants Mangi Lal son entitled to benefit of doubt and we do not confirm their conviction. The death reference is answered accordingly. (22). In view of discussions made hereinabove we allow the appeals of Mangi Lal son of Mohan Lal, Shyam Lal s/o of Amar Singh, Har Kishan s/o Shyam Lal, Sunder Lal s/o Issar, Nathu Lal son of Dhulilal, Nenu Lal son of Dhuli Lal, Bhura s/o Babru, Babu Lal son of Babru, Daula son of Babru, Kanwar Lal son of Prabhu Lal, Phool Chand s/o Mangi Lal and Nathu s/o Amar Singh and set aside their conviction. They are exonerated from the charges under Sections 302/149, 148, 342, 325/149 and 323/149 IPC. They shall be set at liberty forthwith if not required in any other case. They are exonerated from the charges under Sections 302/149, 148, 342, 325/149 and 323/149 IPC. They shall be set at liberty forthwith if not required in any other case. Appeals of Chhitar son of Mangi Lal Dhabri and Gulab Chand son Kanwar Lal shall stand dismissed and their conviction under Sections 302/149, 148, 342, 325/149 and 323/149 IPC stands confirmed. The appeals of appellants Kanwar Lal son of Mohan Lal, Harak Chand s/o Kanwar Lal, Pyarji s/o Kanwar Lal, Gangaram s/o Ram Ratan, Hari Singh s/o Ram Ratan, Sheo Ram s/o Mangi Lal, Chhitar s/o Hari Kishan, Nenu Lal son of Issar and Chhitar son of Mangi Lal Chauhan are partly allowed as indicated hereinabove and death sentence awarded to them shall stand modified and instead they will have to undergo imprisonment for life. Their conviction under Sections 302/149, 148, 342, 325/149 and 323/149 IPC stands confirmed.