Judgment Braj Nandan Prasad Singh, J. 1. Facts of the case are to short for elaboration. As assembly elections in the year 2000 was to be held, polling booths had been established at Circle Officer, Dumra. Pramod Kumar, brother of deceased Sujit Kumar alias Pappu, who was appointed as Polling agent, visiter polling booth in the company of his brother Sudhir Kumar at 10.30 a.m. on 22nd February, 2000 and took his younger brother Sujit Kumar alias Pappu for having breakfast in the nearby hotel. Allegedly all of them took breakfast in Bombay Hotel which situates in Station Road, Sitamarhi, and shortly after they left the premises and had reached near Bajrang Petrol Pump, he noticed Mithilesh Thakur, Binod Prasad and Dinesh Prasad alongwith two unknown persons, when on exhortation made by Binod Prasad, Mithilesh Thakur pumped bullet on the person of Pappu who instantaneously dropped on the ground. Though assailants and his companion were given good chase, but they managed good their escape. 2. The injured was carried to HMT hospital. Sitamarhi where after primary treatment. Dr. Ramakant Singh, considering seriousness of injuries, advised them to carry the injured to Muzaffarpur for better treatment. Acting on the advice of the doctor, it is alleged that while the injured was being taken to Muzaffarpur, and hardly they had reached a little distance from Runisaidpur, the injured succumbed to injuries. However, before the injured succumbed to the injuries, while fighting losing battle for his life, he disclosed complicity of the assailants and his associates to his neighbour Shibu Khan and Shankar Prasad. Motive that allegedly mobilised the assailants and their associates to execute killing of the deceased was past animosity. The fardbeyan of the brother of the deceased with these accusations was recorded by S.I. K.K. Singh, Officer Incharge of Mehsaul Chowk at the residence of the deceased at 16.30 hours on 22.2.2000, pursuant to which first information report was drawn up and investigation commenced, and in the process of investigation. Investigating Officer recorded statement of witnesses under Sec. 161 of the Code of Criminal Procedure prepared inquest report over the dead body of the deceased sent the dead body to mortuary for post-mortem examination and on receipt of post-mortem report, laid charge-sheet before the Court. 3. Investigating Officer recorded statement of witnesses under Sec. 161 of the Code of Criminal Procedure prepared inquest report over the dead body of the deceased sent the dead body to mortuary for post-mortem examination and on receipt of post-mortem report, laid charge-sheet before the Court. 3. The Court in seisin of the proceeding of the case, took cognizance of the offence and after committal, appellants were charged for offences punishable under Sec. 302/34 of the Indian Penal Code (IPC) alongwith Sec. 27 of the Arms Act. The appellants pleaded not guilty and denied charges and also claimed trial. In the eventual trial, the prosecution examined altogether ten witnesses including the doctor who held autopsy over the dead body of the deceased, family members of the deceased and also those who claimed some sort of familiarity with the incident. Defence too examined two witnesses to counter the allegations attributed to the appellants negativing presence of the two brothers of the deceased at the material time of incident at the place of occurrence. The appellants denied attributions made to them in their examination under Sec. 313 of the Code of Criminal Procedure. The trial Court, however, on meticulous appre-ciation of evidences placed on the record and also regard being had to the contentions raised on behalf of the appellants, while negativing contentions raised on behalf of the appellants, recorded verdict of guilt finding the appellant guilty under Sec. 302/34, IPC and while sentencing Binod Prasad and Mithilesh Thakur to death sentenced Dinesh Prasad to undergo rigorous imprisonment for life and also to pay a fine of Rs. 10,000.00 in default of which he was to undergo rigorous imprisonment for a period of two years. Though Mithilesh Thakur suffered conviction also under Sec. 27 of the Arms Act, no separate sentence was recorded on this count. Reference of this case has been made to this Court under Sec. 366 of the Code of Criminal Procedure against sentence of death passed by the trial Court in Sessions trial No. 196 of 2000/49 of 2001 rendered by First Additional District & Sessions Judge, Sitamarhi on 7th day of December, 2001. The appellants too aggrieved with the findings recorded by the Court below, preferred the instant appeals, as mentioned above and the trial Court has also made a reference, as noticed earlier, of the case for confirmation of death sentence awarded to two appellants. 4. The appellants too aggrieved with the findings recorded by the Court below, preferred the instant appeals, as mentioned above and the trial Court has also made a reference, as noticed earlier, of the case for confirmation of death sentence awarded to two appellants. 4. To begin with the findings recorded by Dr. Ramakant Singh (PW 8), who had given primary treatment to the injured the doctor had noticed that the patient was in shock and his condition was serious. The doctor in view of seriousness of the injuries had referred the injured to Muzaffarpur for better treatment. Dr. Yogesh (PW 10), who held autopsy over the dead body of the deceased, had noticed two firearm wounds on the abdominal region, which were wounds of entry and also exit. The doctor noticed fracture of lumber vertebra, and in opinion of the doctor, cause of death was haemorrhage and shock as a result of injuries caused by firearms. The doctor was firm in his opinion that the moment lumber vertebra gets fractured, sensation to the brain is affected, if spinal cord too is affected. 5. Since it was a polling day, Kameshwar Prasad Singh, (PW 9) who was incharge of Mehsaul O.P. was on patrolling duty on 22.2.2000 at about 11.05 a.m., on receipt of information about one Pappu, son of Satya Narain Prasad having been shot at near Bajrang Petrol Pump, Sitamarhi, rushed to the Petrol pump where he reached at about 11.15 a.m. He noticed blood there and also came to know that the injured had been rushed to HMT hospital. He lost no time and visited HMT hospital where he made interrogations with Dr. Ramakant Singh and also management of HMT hospital. As Pappu had succumbed to the injuries, his dead body had been brought to his residence. He visited his house where he recorded fardbeyan of Pramod Kumar, brother of the deceased and forwarded it to Sitamarhi Police Station where first information report was drawn up. The Police Officer states to have held inquest over the dead body of the deceased and forwarded the same to the hospital. He inspected the place of occurrence which was part of the road north to Bajrang Petrol Pump. He collected blood stained earth and also prepared seizure memo, recorded statement of the witnesses and eventually laid chargesheet before the Court on conclusion of investigation. 6. He inspected the place of occurrence which was part of the road north to Bajrang Petrol Pump. He collected blood stained earth and also prepared seizure memo, recorded statement of the witnesses and eventually laid chargesheet before the Court on conclusion of investigation. 6. Though Birendra Prasad (PW 1) was stated to be familiar with deceased Pappu, he turned volte face to the state about the incident. Pankaj Hisaria (PW 2) states that shortly on hearing the sound of firing, he pulled down shutter of shop and rushed to the place of occurrence, where he noticed Pappu dropped on the ground sustaining gun shot injuries on his person. Blood was oozing out from the wound, and apart from his two brothers, namely, Pramod Kumar and Sudhir Kumar, he also noticed Shankar Prasad, Binod Prasad and Mithilesh Thakur there. He noticed Bijay Prakash the owner of Bombay hotel and also other persons present. Pappu was carried to HMT hospital on a jeep where he was treated by Dr. Ramakant Singh who advised to take the injured to Muzaffarpur for better treatment. Pappu, however, succumbed to injuries in the midway and almost similar narrations were made also by Vijay Prakash Mishra (PW 5) who stated to have rushed to the place of occurrence, on hearing some sound. He noticed Pappu dropped on the ground, and his brother and also other persons had been present there. Pappu, the injured was taken to HMT hospital. He also claimed to be a witness to the seizure of blood sustained earth from the place of occurrence. Shankar Prasad (PW 6) too states to have rushed to the place of occurrence from polling booth at about 11.15 a.m. on hearing some sound where he noticed Pappu being boarded on a jeep, who had injuries in the abdomen. This witness too had turned volte face to the State. 7. Now I advert to the evidence of those who happen to be family members of the deceased and two of them claimed to be ocular witness to the killing of Pappu, Satya Narain Prasad (PW 3), father of the deceased Pappu, heard alarms about his son having suffered gun shot injuries, and when he came out, he noticed Pappu being taken to HMT hospital on a four-wheeler. He rushed to HMT hospital on a two wheeler and questioned the injured son about his assailant, who stated that on exhortation made by Binod Prasad, Mithlesh Thakur had fired shots on him, and about other appellant Dinesh Prasad, he stated that he too was in their company. Dr. Ramakant Singh, who treated the injured, advised them to take the injured to Muzaffarpur and while the injured was being taken to Muzaffarpur, in the mid way he succumbed to injuries. As for motive behind the gruesome killing of his son, father states that the incident was a fall out of previous animosity. 8. Sudhir Kumar (PW 4) states to have taken breakfast in Bombay hotel at about 11 a.m. alongwith his elder brother Pramod Kumar and also younger brother Pappu and shortly after they had come out of the hotel with the breakfast, five persons came running from south direction towards Pappu and on exhortation made by Binod Prasad to eliminate Pappu. Mithilesh Thakur fired shots on him who sustaining injuries instantaneously dropped on the ground. The witness also claimed to have noticed Dinesh Prasad in their company, and all of them shortly made good their escape. They were given good chase for their apprehension but they managed good their escape. The witness states that while Pappu had been taken to HMT Hospital, Sitamarhi, his father too reached there. Though Pappu had been referred to Muzaffarpur by Dr. Rama Kant Singh for better treatment, the former in the midway succumbed to the injuries. 9. Reiterating his earliest version, which he rendered before the Police, Ram Pramod Kumar (PW 7) made narrations in similar vein and terms about Mithilesh Thakur having pumped bullet on the person of Pappu on exhortation made by Binod Prasad, shortly after he alongwith Pappu and Sudhir Kumar had come out from Bombay hotel after taking breakfast near Bajrang Petrol Pump. Narration made by this witness also echos treatment of Pappu by Dr. Ramakant Singh in HMT hospital and also injured having succumbed to the injuries in the midway while he was being taken to Muzaffarpur. This is all the evidence that has been adduced on behalf of the State. 10. As I have noticed, defence too had chosen to examine two witnesses and without any reservation. Sunil Kumar (DW 1) states to have noticed Pappu lying injured with blood wounds. This is all the evidence that has been adduced on behalf of the State. 10. As I have noticed, defence too had chosen to examine two witnesses and without any reservation. Sunil Kumar (DW 1) states to have noticed Pappu lying injured with blood wounds. About 20-25 persons had collected there after his arrival who took Pappu on a four wheeler towards west. Similar narrations were made by Rajdeo Rai (DW 2) who states about arrival of Pramod and Sudhir five minutes after his arrival at the place of occurrence. 11. Though lot of criticisms were sought to be made by the learned counsel for the appellants to assail the finding of guilt recorded by the trial Court. I notice that the findings recorded by the Court below recording verdict of guilt are quite meritorious which had considered all dimensions of the case of the prosecution and also that of the appellants. However. I may notice some of the lucid submissions made at Bar. Contentions were raised that even though presence of Satya Narain Prasad, father of the deceased either at the place of occurrence or in HMT hospital, Sitamarhi, was conspicuously wanting in the fardbeyan of Pramod Kumar, brother of the deceased the State in order to modulate the prosecution version has sought to introduce his presence which is contrary to the weight of mass of evidence of other witnesses. Though father states also about dying declaration having been made by his son in HMT hospital on interrogations made by him, disclosing complicity of the appellants, fardbeyan of the brother of the deceased did not bear these details too, and it was most unlikely that the son would have missed to mention the name of his father had he been there. 12. I have given our due consideration on this score and I find that though that the prosecution version about deceased having made some sort of dying declaration was not a myth, which has been expressly mentioned in the fardbeyan, there are yet good reason to undermine significance of this aspect of the prosecution version, as apart from the fact that Shibu Khan, one of the two persons in whose presence dying declaration was allegedly made by the deceased, has been withheld by the State, even Shankar Prasad (PW 6) had turned volteface to the State. He did not make any narration about deceased having made dying declaration in his presence. Yet, there are other good reasons which reinforces my views. None of those persons including Sudhir Kumar, brother of the deceased, who had shown their presence at the place of occurrence, stated a word about such dying declaration having been made by the deceased. Rightly, as has been urged at Bar, presence of father during disclosure allegedly made by the deceased, had not been expressly stated in the fardbeyan too which was the sheet anchor of the prosecution case. Though Sudhir Kumar (PW 4) the brother of the deceased states about presence of his father in the HMT hospital. pursuant to which primary treatment of the injured was given by Dr. Rama Kant Singh, he too does not state about such dying declaration having been made by deceased and that too in his presence. Failure of the informant to state presence of his father in HMT hospital before whom the deceased allegedly made dying declaration disclosing complicity of the appellants and also no such narrations having been made by Sudhir Kumar (PW 4) too in his evidence was in our opinion, a vital omission which belies the prosecution theory about deceased having made dying declaration disclosing complicity of the appellants in presence of his father. 13. That apart, Dr. Rama Kant Singh, who gave primary treatment to the injured has found the patient in shock and his condition to be serious. Though no explicit question was put before the doctor who held autopsy over the dead body of the deceased, the doctor has recorded positive finding in course of postmortem examination of the deceased, that there was fracture of lumber vertebra and the moment the lumber vertebra gets fractured. sensation to the brain is affected, if spinal cord too is under impact. Taking observations made by the two doctors, there appears to be no likelihood about injured having made any speech, pursuant to receipt of such injury on his person, and that too belies the prosecution theory about deceased making dying declaration declaring complicity of the appellants. 14. Presence of father at the HMT hospital is also negatived for the reason that on his own showing, the father did not accompany his injured son while he was being taken to Muzaffarpur on being referred to Dr. Ramakant Singh. 14. Presence of father at the HMT hospital is also negatived for the reason that on his own showing, the father did not accompany his injured son while he was being taken to Muzaffarpur on being referred to Dr. Ramakant Singh. The conduct of the father on this score too reinforces my view about absence of father in HMT hospital. 15. Having analysed evidences of two eye-witnesses, who happen to be brothers of the deceased, we find that even if the prosecution version about dying declaration having been made by the deceased is excluded from consideration, their evidences would merit considera-tion to bring home charges against the appellants. 16. Now let us consider other submissions made on behalf of the appellants. Learned counsel would urge that though Investigating Officer states to have recorded statement of Bijay Prakash Mishra (PW 5) at 11.25 a.m., shortly on visiting the place of occurrence, it was quite unlikely that the complicity of the assailant and his associates would not have been disclosed to him by the witnesses. Dilating on this issue, it is submitted at Bar that even though first hand information had been received from said Bijay Prakash Mishra, no Police case was registered by the Investigating Officer on strength of his statement rendered to him, and on these premises it was urged that till 11.15 a.m. the name of the assailant or his associate was not in the air. In quick succession, with all stress, it is urged that even though the Police Station was at an insignificant distance and the persons carrying injured to Muzaffarpur had crossed through Runisaidpur Police Station and Mehsaul O.P., they had not taken recourse to public authority to inform the Police about the incident. 17. Delayed receipt of the first information report in the office of the Chief Judicial Magistrate was also taken to be a ground to highlight the infirmity in the prosecution version and in the backdrop of these circumstances, it is contended that the first information report was a spurious document which was collusive and was fabricated at belated stage to modulate the prosecution version. 18. Though these arguments appear to be quite alluring and attractive, they are devoid of merit. 18. Though these arguments appear to be quite alluring and attractive, they are devoid of merit. Since Bijay Prakash Mishra was not an ocular witness to the killing of the deceased, it was not expected of him that he would disclose the complicity of the assailant or his associates to the Police Officer. The only assertion made by this witness was that shortly after he came out hearing sounds, he noticed. Pappu lying injured on the road, and his brother Pramod and others taking him to HMT hospital. No where, assertions made by witness gives any impression that he had conversion or talk with the two brothers of the deceased who were eye-witnesses to the incident, about killing of the deceased or identity of the assailant. In this backdrop, it has to be reiterated that eye-witnesses to the killing of Pappu were only this two brothers who too were not interrogated by any witness or any passers by about complicity of the appellants, and it was not expected from these two brothers that they would openly announce complicity of the assailant of their brother. Their brother was in precarious condition and it was quite likely that without losing any moment, shortly after the incident, they carried him to HMT hospital. Since no one either questioned or interrogated two brothers, it cannot be legitimately argued that the name of the assailant till 11.15 was not in the air and argument on this score obviously has to be rejected. Cases are not to be decided on mere probabilities divorced of all the facts and circumstances of the case. 19. Disclosure of names or identity of offenders, if unknown by a person who figures as an eye-witness, is one of the most material facts and such a fact cannot be countenanced for the simple reason that eye-witnesses before they were interrogated by Police, have not disclosed identity of offender to others. Equally meritless is the argument that had the appellants been offenders, it was most unlikely that no one, who flocked to the place of occurrence could not have taken recourse to public authority about complicity of the assailant. Equally meritless is the argument that had the appellants been offenders, it was most unlikely that no one, who flocked to the place of occurrence could not have taken recourse to public authority about complicity of the assailant. I must say with stress that apathy of law abiding citizen in reporting any outrage to which they were witnesses, is too notorious to merit consideration, and merely because that the witnesses had not reported the matter to the Police, it would not follow that they were not telling the truth and I am of firm view that no fault can be found with the prosecution version on this ground which appears to be too feeble to merit consideration. 20. Feeble arguments were also sought to be made that since there was no evidence that the assailant was opposite to the deceased when the former fired shot there was no possibility of the deceased sustaining gun shot injury in the abdominal region, but only to modulate the finding of the doctor, the witnesses stated at trial that shortly on exhortation made by Binod Kumar, Pappu had turned out back. 21. In my view possibility of sustaining gun shot injury in front part of the deceased was most likely when the deceased turned back on hearing exhortation made by Binod Prasad and that apart no hair-splitting criticism can be made on this ground as though some variations in the testimony of witnesses (though such infirmity has not crept in the instant case) with regard to postures and situation in which the deceased sustained gun shot injuries in the backdrop of panic that generated from the horrendous act of the appellants, may occur, when they are speaking of details, unless such variations are of material dimensions and warrant rejection of the evidence in entirety corroboration of evidence with mathematical precision of nicety cannot be expected in a criminal case as it is almost well nigh impossibility that even true and ocular witnesses while rendering ocular account of the incident would not make discrepant statement when they are speaking of details. Equally in meritless is the argument about omission of name of the assailant in the inquest report even when the police case had been instituted preceding preparation of the inquest report. 22. Now I may switch over to the other limb of argument made on behalf of the appellants. Equally in meritless is the argument about omission of name of the assailant in the inquest report even when the police case had been instituted preceding preparation of the inquest report. 22. Now I may switch over to the other limb of argument made on behalf of the appellants. Submission is that even though occurrence took place at about 11 a.m. on 22.2.2000, it was not before 16.30 hours on that day that fardbeyan of Pramod Kumar was recorded by the Police Officer of Mehsaul O.P. and that apart, from endorsement made on the body of the first information report, it would appear that the first information report had been received in the office of the Chief Judicial Magistrate on 24th February, 2000. It is on these premises that counsel would urge that the first information report was spurious document which was also collusive. Such argument has to be negatived for the simple reason that Investigating Officer was the best person to answer these questions but the defence has not chosen to put question before the I.O. while he was in the dock of the Court and now the Court is left to gauge as to whether there had been delay in launching the prosecution to suspect bona fide of the prosecution version, and on this score too we find that argument was untenable. This fact cannot be lost sight of that fardbeyan of Pramod Kumar was recorded by S.I. K.K. Singh. Officer Incharge of Mehsaul O.P. at the residence of the later at 16.30 hours on 22.2.2000 and shortly after recording fardbeyan, the Police Officer had forwarded the same to the Officer Incharge, Sitamarhi Police Station for instituting a case, as Mehsaul O.P. was not a full fledged Police Station where FIR could have been drawn up. I can take judicial notice of the fact that the first information report too was drawn up at Sitamarhi Police Station on the same day. The investigation had already been taken by S.I. K.K. Singh, Officer Incharge, Mehsaul O.P. who had jurisdiction in the matter. I can take judicial notice of the fact that the first information report too was drawn up at Sitamarhi Police Station on the same day. The investigation had already been taken by S.I. K.K. Singh, Officer Incharge, Mehsaul O.P. who had jurisdiction in the matter. Though reliance was sought to be placed by the learned counsel for the appellants on a decision of Apex Court reported in Arjun Marik and others V/s. State of Bihar, it may, however, be noticed that it has been reiterated in catena of decisions of the Court that mere delayed receipt of the first information report in the office of the Chief Judicial Magistrate does not ipso facto warrant conclusion about first information report to be a tainted document and we may refer to a decision of the Apex Court reported in Jinnat Mia @ Jinu Mian and others V/s. State of Assam. Similar views were reiterated by the Apex Court in another decision reported in State of Karnataka V/s. Moin Patel and others, and I may also refer to recent decision of the Apex Court reported in Munshi Prasad and others V/s. State of Bihar. In the case of State of Karnataka V/s. Moin Patel, observations were made by the Apex Court that in case first information report was lodged promptly and investigation started on that basis, matter has to be judged in context of these facts. Mere delay in despatch of first information report and delayed receipt thereof by the Magistrate, would not by itself make the prosecution case suspect. In the case reported in Pala Singh and another V/s. State of Punjab, while reiterating on this issue, observations were made by the Apex Court that if it is a fact that first information report was recorded without delay and investigation had commenced, then whatever impropriety of delayed receipt of report by the Magistrate may be, it cannot by itself justify conclusion that the document was tainted and prosecution version was insupportable. In the instant case, the incident happened at about 11 hours on 22.2.2000. The deceased, it would appear from the findings recorded by Dr. In the instant case, the incident happened at about 11 hours on 22.2.2000. The deceased, it would appear from the findings recorded by Dr. Rama Kant Singh had sustained serious injuries on his person and in this backdrop, anxiety of the worried family members must be to take the injured to a nearby hospital for treatment and if the brother of the deceased instead of taking recourse to public authority had given priority to take the injured to doctor to save his life, that would not counter the human instinct. As has been the evidence on the record, Dr. Rama Kant Singh on examining the injured had referred him for Muzaffarpur and it is how the brothers of the deceased instead of reporting the matter to the Police, lost no time to take their injured brother to Muzaffarpur who eventually breathed his last in midway. If neither brother of the deceased nor any public had taken recourse to public authority, even if Police Station lies in the mid way, in my considered opinion, no fault can be found with the prosecution case on this count. 23. As has been acknowledged by the I.O., he did not institute a case even on recording statement of Bijay Prakash Mishra, but on that count too, the first information report cannot be rejected, that being not the earliest version of the prosecution. It is no longer res integra crystallized through catena of decisions of Court that first hand information received by the Police Officer without necessary details either about assailant or material particulars of the case did not assume character of the first information report and again we may reiterate that all vague informations which are cryptic in nature cannot be equated with the character of the first information report and on this score too argument appears to be fallacious. warranting its rejection. 24. Some ancillary arguments can also be noticed to judge their merit. warranting its rejection. 24. Some ancillary arguments can also be noticed to judge their merit. True it is that though the Police Officer acknowledges to have collected blood stained earth from the place of occurrence, there has not been finding of the Chemical Examiner about blood to be human blood and on this score we may negative the argument, as failure of the Investigating Officer to send blood stained articles to Forensic Science Laboratory for chemical examination or to produce the report the Court at trial was not a matter of such vital consequence which can militate against entire version of the State, and that apart, it is well settled that for lapse on the part of the Investigating Officer, prosecution was not to be a casualty. 25. As for the motive, submission is that taking the documents placed on the record by the State, that would suggest that had Binod Kumar any grudge that was against Pramod Kumar and it was not likely that he would choose Pappu to be the target and on this score too we are inclined to say that even if motive suggested by the prosecution is fragile, that is not the ground to reject the prosecution version, as the mere fact that the motive alleged by the prosecution is not strong enough to develop such a degree of guilt that would not mean that the assailant had no serious reasons to do this, and that apart, motive for committing criminal act is generally a difficult area for prosecution to explain, and hence I hold that inadequacy of motive is of little importance. 26. Having analysed the evidences from all dimensions, we find Sudhir Kumar (PW 4) and Ram Pramod Kumar (PW 7) credible eye- witnesses. They were working together with the deceased on the polling day and hence, their presence they being in the company of the deceased, preceding the incident, cannot be questioned. They happened to be most natural and probable witnesses to the killing of their brother. Evidence of other witnesses too, which are of ancillary nature, though are not on the factum of killing of the deceased are not a without significance, and for that we may refer to the evidence of Pankaj Hisaria (PW 2). Satya Narain Prasad (PW 3). Bijay Prakash Mishra (PW 5) and Shankar Prasad (PW 6). Evidence of other witnesses too, which are of ancillary nature, though are not on the factum of killing of the deceased are not a without significance, and for that we may refer to the evidence of Pankaj Hisaria (PW 2). Satya Narain Prasad (PW 3). Bijay Prakash Mishra (PW 5) and Shankar Prasad (PW 6). They had seen the injured with bleeding wounds who was being boarded on a four-wheeler for being taken to a doctor, and in view of ocular testimony of witnesses and also finding recorded by the two doctors and also Police Officer, it was no longer in dispute that Pappu died homicidal death for which Mithilesh Thakur was the assailant who pumped bullet on his person shortly on exhortation made by Binod Kumar. 27. The narrations made by two defence witnesses was only oath against oath. They were not the persons who were examined by the Police during investigation and that apart, they too stated about they having seen Pappu lying injured with bleeding injuries in his abdomen and in this backdrop we find that probability of false implication did not out weigh the probability of participation of the appellants. 28. Having bestowed our anxious and deepest consideration to the facts and circumstances of the case and also the evidences placed on the record, I uphold the finding of guilt and convict appellant Mithilesh Thakur, the sole assailant under Sec. 302, IPC simpliciter. I also convict appellant Binod Prasad under Sec. 302/109, IPC, he being the person who set the ball in motion and on exhortation made by him, the assailant had shot dead the deceased. As for Dinesh Prasad, neither there has been any evidence suggesting predetermination or concert nor there has been any evidence about lethal weapon, much less any weapon held by him except that he too was in the company of other two appellants. No explicit role either for instigation or sharing common intention was assigned to him. We accordingly set aside the finding of the Court below recorded against him and acquit him of the charges. He is also discharged from the liability of the bail bonds. 29. Learned counsel for the rest two appellants, however, submitted that since the occurrence took place in broad day light and it all happened on a polling day, the Court below appears to be obsessed in awarding death sentence to these appellants. He is also discharged from the liability of the bail bonds. 29. Learned counsel for the rest two appellants, however, submitted that since the occurrence took place in broad day light and it all happened on a polling day, the Court below appears to be obsessed in awarding death sentence to these appellants. In our view it was not a case of such nature which would shock collective conscious of the community falling within the rarest of the rare case with aggravated circumstances. 30. Now coming to the magnitude of the sentence imposed on Mithilesh Thakur and Binod Prasad by the trial Court, one cannot help feeling that Mithilesh Thakur took recourse to firing killing Pappu without any provocation and resistance. Sentence of death is awarded in a case in which act is very brutal and highly repugnant in moral. Question to be answered in these circumstances are as to whether there is any aggravating circumstance which impertinently call for extreme penalty and as to whether it was a rarest of the rare case. It is not necessary to delve into further, for law on the subject has been crystallized by catena of decisions of the Apex Court. Regard being had to the facts and circumstances of this case, it is difficult to hold that it is rarest of the rare case warranting capital sentence for putting out a human life. 31. I accordingly set aside the death sentence and direct that Mithilesh Thakur and Binod Prasad shall suffer imprisonment for life on the count they have suffered conviction by this Court. 32. In the result, Cr. Appeal No. 605 of 2001 filed by Dinesh Prasad is allowed and the appeal succeeds. Cr. Appeal No. 3 of 2002 and Cr. Appeal No. 14 of 2002 filed by Binod Prasad and Mithilesh Thakur, respectively are allowed to the aforesaid extent and reference made by the trial Court is answered accordingly in the abovementioned terms. 33. However, before parting with this judgment, I am an constrained to observe that some of the observations made by the Court below about law and order situation of the State would have been avoided, as the Court was not called upon to make running commentary on such issue while only determining the guilt of the appellants. Sachidanand Jha, J. 34 I agree.