Judgment : LAKSHMAN URAON, J. ( 1 ) DEATH Reference No. 3 of 2000 and the other five Criminal Appeals arise out of the common judgment and order of conviction and sentence dated 1-3-2000 and 3-3-2000 respectively, passed by Sri Mungeshwar Sahoo, learned lst Additional Sessions Judge, Gooda, in Sessions Case No. 46 of 1998/390 of 1998, whereby and whereunder, Pappu Yadav and Sanjay Yadav, both appellants in Cr. Appeal No. 139 of 2000, Ranjeet Yadav alias Sandeep Yadav alias Pagla, appellant in Cr. Appeal No. 142 of 2000, Fagu Yadav and Munilal Yadav, both appellants in Cr. Appeal No. 107 of 2000, Naresh Yadav, appellant in Cr. Appeal No. 135 of 2000, and Nijling Yadav, Lallu Yadav, Jaikant Yadav and Rajendra Yadav, appellants in Cr. Appeal No. 106 of 2000, have been convicted under Section 302/149 of the Indian Penal Code whereas others, namely, Hem Prakash Yadav, Kapildeo Yadav, Banke Bihari Yadav and Brindaban Yadav, have been acquitted. The learned Court below after hearing the convicts on the point of sentence found appellants Sanjay Yadav, Pappu Yadav and Naresh Yadav guilty for committing murder of Upendra Yadav, elder brother of Parmanand Yadav and subsequently while on bail, committing murder of Parmanand Yadav and hence all the three convicts were awarded capital punishment and the learned 1st Additional Sessions Judge, Gooda, has referred the same vide his letter No. 67 dated 13-3-2000 under Section 366, Cr. P. C. for confirmation, whereas the other appellants in other Criminal Appeals have been sentenced to undergo life imprisonment. ( 2 ) ALL the Criminal Appeals having heard together are being disposed of by this single order of this Court and the Death Reference will be considered later on. ( 3 ) THE prosecution case is based on the Fardbeyan of the informant Rabindra Prasad Yadav (PW 6), recorded on 14-10-1997 at 16. 30 hours by S. I. R. B. Nanhe (PW 9), Officer-in-Charge of Mahagama Police Station at Nunajore More in which the informant has alleged that he along with Devi Lal Yadav (PW 3) reached Nunajore More at 2. 15 p. m. from Patthargama Market after purchasing some articles and went to take tea in the tea stall of Gafoor Mian. 30 hours by S. I. R. B. Nanhe (PW 9), Officer-in-Charge of Mahagama Police Station at Nunajore More in which the informant has alleged that he along with Devi Lal Yadav (PW 3) reached Nunajore More at 2. 15 p. m. from Patthargama Market after purchasing some articles and went to take tea in the tea stall of Gafoor Mian. After half an hour, Parmanand Yadav alias Lalua (deceased) came on a bus from Gooda and at Nunajore More, he got down from the bus and went to take tea in the tea stall of Rabindra Sikdar. All of a sudden Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Pagla, armed with pistols, entered into that shop. Outside the tea stall of Rabindra Sikdar, appellants Fagu Yadav, Munilal Yadav, Naresh Yadav, Nijling Yadav, Lallu Yadav, Jaikant Yadav and Rajendra Yadav were standing for the purposes of guarding. They instigated to murder Parmanand Yadav as they would not allow him to flee away. On their instigation, appellants Pappu Yadav, Sanjay Yadav and Ranjeet Yadav from a point blank distance fired with their respective pistols causing injuries to Parmanand Yadav, who fell down and died instantaneously. Prior to causing murder of Parmanand Yadav, all the accused, besides Hem Prakash Yadav, Kapildeo Yadav and Banke Bihari Yadav, were sitting in the shop of Brindaban Yadav and were conspiring to cause murder of Parmanand Yadav and were waiting for his arrival from Gooda, only due to previous enmity. ( 4 ) AFTER investigation the Investigating Officer submitted charge-sheet under Sections 302/149 and 120b of the Indian Penal Code. ( 5 ) THE prosecution to substantiate the charges, has examined altogether nine witnesses. Out of them PW 3 Devilal Yadav, PW 4 Nandeshwar Yadav and the informant (PW 6) claimed themselves to be the eye witnesses. PW 1 Manoj Yadav is the witness on inquest report on which he has signed (Ext. l ). PW 5 Bindeshwar Yadav is also a witness on the inquest report on which he has signed (Ext. 1/1) and is also a witness on the seizure list, prepared in respect of two wades and blood stained soil on which he has signed (Ext. 2/1 ). PW 2 Birendra Yadav is also seizure list witness on which he has signed (Ext. 2 ). PW 7 Dr. Ashok Kumar has conducted autopsy on the dead body of Parmanand Yadav. Ext. 2/1 ). PW 2 Birendra Yadav is also seizure list witness on which he has signed (Ext. 2 ). PW 7 Dr. Ashok Kumar has conducted autopsy on the dead body of Parmanand Yadav. Ext. 5 is the Post Mortem report. PW 8 Ramjee Singh, Constable, has produced the material exhibits in sealed packet with respect to empty cartridges (Material Ext. I), one fired bullet (Material Ext. II) and Glass Vial (Material Ext. III ). PW 9 R. B. Nanhe is the I. O. of this case. The learned lst Additional Sessions Judge, Godda, relied the evidence of eye witnesses and having found that their ocular evidence was corroborated by the evidence of Dr. Ashok Kumar (PW 7) and also the seized Material Exhibits and the seizure list prepared by the I. O. , convicted these appellants under Section 302/149 of the Indian Penal Code and sentenced them, as mentioned above, while acquitting the others, namely, Kapil Yadav alias Kapildeo Yadav, Birendra Yadav, Hem Prakash Yadav and Banke Bihari Yadav. ( 6 ) THE learned counsel for the appellants has assailed the judgment and order of conviction and sentence, passed by the learned Court below on the ground that due to enmity these appellants have been convicted and sentenced out of whom three have been awarded capital punishment. The eye witnesses have alleged that Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandeep Yadav alias Pagla entered into the tea stall of Rabindra Sikdar where Parmanand Yadav was taking tea. They are alleged to have fired once each with their respective pistols from a blank point distance, causing injury to Parmanand Yadav resulting his death. The other appellants who had got their shops at Nunajore More have been alleged that they were standing outside the tea stall of Rabindra Sikdar, instigating the above three appellants to cause murder of Parmanand Yadav, as they would not allow him to escape. It was submitted that there is no evidence on record that the other appellant, except Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandeep Yadav alias Pagla, were the members of unlawful assembly and had entered into the criminal conspiracy to cause murder of Parmanand Yadav. PW 4 Nandeshwar Yadav, an eye witness, has not deposed that appellant Jaikant Yadav and Rajendra Yadav were in the shop with Manoj Yadav (PW 1 ). PW 4 Nandeshwar Yadav, an eye witness, has not deposed that appellant Jaikant Yadav and Rajendra Yadav were in the shop with Manoj Yadav (PW 1 ). PW 1 Manoj Yadav has not deposed that he was in the tea stall along with PW 4 Nandeshwar Yadav. PW 1 Manoj Yadav, PW 2 Birendra Kumar Yadav, PW 4 Nandeshwar Yadav and PW 6 Rabindra Prasad Yadav are closely related as cousin brothers of the deceased. PW 6 Rabindra Prasad Yadav, informant, has claimed that he was taking tea along with Devilal Yadav in the tea stall of Gafoor Mian. The distance in between the tea stall of Gafoor Mian and to that of Rabindra Sikdar is intervened by the shop of one Arbind Sao and there is Bhaga Bandh Road and a wide Nala on the northern side of the P. O. shop of Rabindra Sikdar. The distance in between the shops of Ravindra Sikdar and Gafoor Mian is about 25 to 30 feet. Under such circumstance while taking tea at the shop of Gafoor Mian, PW 3 Devilal Yadav and the informant Rabindra Prasad Yadav could not have heard the accused, who were standing outside the shop of Ravindra Sikdar, to have instigated Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandeep Yadav alias Pagla to commit murder of Parmanand Yadav. The assembly of other appellant was only because they are the residents of Nunajore having their shops at Nunajore More. PW 3 Devilal Yadav did not hear the sound of instigation, given by any of the appellants to the alleged main accused, who had revolvers in their hands. PW 4 Nandeshwar Yadav has not named Naresh Prasad Yadav amongst the persons, assembled outside the tea stall of Rabindra Sikdar. It was submitted that there is vital contradictions in the evidence of the eye witnesses i. e. PW 3 Devilal Yadav, PW 4 Nandeshwar Yadav and the informant Rabindra Prasad Yadav (PW 6 ). The alleged occurrence took place at Nunajore More where the buses stop. There are a number of shops and is a busy place. Even then not a single independent witness of the locality has been examined to establish the prosecution case. The Manager of the tea stall, namely, Mantu Sikdar, who was present, has not been examined. Only the interested witnesses have claimed themselves to be the eye witnesses. There are a number of shops and is a busy place. Even then not a single independent witness of the locality has been examined to establish the prosecution case. The Manager of the tea stall, namely, Mantu Sikdar, who was present, has not been examined. Only the interested witnesses have claimed themselves to be the eye witnesses. The I. O. (PW 9) in course of investigation recorded the statements of Arbind Sah, Gafoor Mian, Ram Nandan Thakur, Jaikant Sah, Gopal Sikdar and Mantoo Sikdar under Section 161, Cr. P. C. but they did not support the prosecution case and hence they have not been made charge-sheeted witnesses in this case, which has caused prejudice to the appellants, as the truth of the alleged murder of Parmanand Yadav was not brought on record. PW 3 and PW 6 are only chance witnesses, who are residents of Village-Dharmodih, which is situated at a distance ofabout 3 Kms. from Nunajore More. They are actually not the eye witnesses rather they came to the place of occurrence after the murder took place. The learned Court below did not consider the admitted fact of enmity in between the parties, resulting false implication of these appellants in a heinous crime of murder. ( 7 ) REFUTING the argument, advanced on behalf of the appellants, learned A. P. P. has submitted that deceased Parmanand Yadav was informant in a murder case of his brother in which the appellants had threatened to cause his (informant of the said case) murder and also of the other witnesses. That case ended in conviction of the appellants, namely, Pappu Yadav, Sanjay Yadav and Naresh Yadav. While in custody, they conspired to commit murder of Parmanand Yadav and in a pre-planned way, along with other appellants of other Criminal Appeals entered into a conspiracy at the shop of the appellants, situated nearby Nunajore More and were waiting for arrival of Parmanand Yadav in a bus. Their assembly was unlawful as convict Naresh Yadav was along with them to implement their plan and being the members of unlawful assembly at the time of the alleged occurrence, they went near the shop of Rabindra Sikdar where Parmanand Yadav had gone to take tea. Their assembly was unlawful as convict Naresh Yadav was along with them to implement their plan and being the members of unlawful assembly at the time of the alleged occurrence, they went near the shop of Rabindra Sikdar where Parmanand Yadav had gone to take tea. The other appellants Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandip alias Pagla having pistols in their hands, entered into the shop of Rabindra Sikdar and at a point blank distance fired at him, who succumbed to the fire arm injuries at the spot. Thereafter all the three assailants fled away. The other appellants, who were standing outside the shop, were exhorting the main assailants to commit murder of Parmanand Yadav, as they would not allow him to flee away. PW 3 Devilal Yadav was taking tea along with the informant Rabindra Prasad Yadav (PW 6) in the tea-stall of Gafoor Mian. They are the eye witnesses of the alleged occurrence, who have supported the prosecution case, stating that Pappu Yadav, Sanjay Yadav and Ranjeet Yadav entered into the hotel of Rabindra Sikdar, who were instigated by other appellants, namely, Fagu Yadav, Munilal Yadav, Naresh Yadav, Nijling Yadav, Lalu Yadav, Jaykant Yadav and Rajendra Yadav, standing outside, in front of the hotel. They claimed to have seen them sitting near the shop of Hem Prakash, planning to commit murder of Parmanand Yadav, after entering into criminal conspiracy. Three of the appellants, namely, Pappu Yadav, Sanjay Yadav and Naresh Yadav, were the convicts in a murder case of Upendra Yadav, brother of the deceased Parmanand Yadav, who was informant and witness in that case. Deceased Parmanand Yadav had received threatening letters (Ext. 4 series), given by the main assailants. They have given their planning into picture. The learned Court below has considered all the evidences carefully and has convicted the appellants, out of whom three have been sentenced to death. On these grounds, it was urged that unlawful assembly, conspiracy and active participation of all the appellants in causing murder of Parmanand Yadav has been proved by the prosecution, which has rightly been appreciated by the learned Court below, while convicting and sentencing the appellants. ( 8 ) IN the present case, enmity is admitted. None of the independent witnesses has supported the prosecution case. ( 8 ) IN the present case, enmity is admitted. None of the independent witnesses has supported the prosecution case. PW 3 Devilal, PW 4 Nandeshwar Yadav and the informant Rabindra Prasad Yadav (PW 6) are the eye witnesses of the alleged occurrence. Nandeshwar Yadav (PW 4) was at the saloon of Ramanand Thakur along with PW 1 Manoj Yadav. PW 3 and PW 6 were in the tea-stall of Gafoor Mian. PW 9 R. B. Nanhe is the Investigating Officer of this case. To appreciate the evidence of PWs 3, 4 and 6, the place of occurrence and presence of these witnesses at the saloon of Ramanand Thakur and the tea-stall of Gafoor Mian is the main factor as to whether these three witnesses have actually seen the alleged occurrence. PW 9 R. B. Nanhe has found the place of occurrence to be the tea-stall of Rabindra Sikdar. The dead body of Parmanand Yadav alias Ladua was lying in a pool of blood. The shop of Rabindra Sikdar at Nunajore Chowk is facing towards west. However, once he has deposed that it was facing east, which he subsequently corrected. It is open in the front and closed in three sides i. e. north, south and east by Tatia. In front of the shop at a distance of 20 ft. west Godda-Mahagama main road runs from south to north. In front of the P. O. shop there is a readymade shop of appellant Nijling Yadav and cement shop of appellant Lalu Yadav. In the eastof the road on the back of the P. O. shop there is grocery shop of Jaikant Yadav. After the road, there is a canal and in the north there is a sweetmeat shop of Arbind Sah. By the side of the shop of Arbind Sah, in the north after a little distance in the east, there is a shop of Gafoor Mian. In the south of P. O. shop there is Gumti of Anil Yadav and Bharat Yadav. After 40 yards in the east of the P. O. shop, there is the house of Lobin Hembram, M. L. A. The shop of Ramanand Thakur is just west of Godda-Mahgama main road at Nunajore Chowk, which is situated at north-west of the P. O. shop of Rabindra Sikdar. After 40 yards in the east of the P. O. shop, there is the house of Lobin Hembram, M. L. A. The shop of Ramanand Thakur is just west of Godda-Mahgama main road at Nunajore Chowk, which is situated at north-west of the P. O. shop of Rabindra Sikdar. ( 9 ) PW 6 (informant) claims that he was taking tea in the tea-stall of Gafoor Mian along with Devilal Yadav (PW 3) at about 3. 00 p. m. They saw Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Pagla entering into the shop of Rabindra Sikdar where Parmanand Yadav, after getting from the bus, had gone to take tea. Both these witnesses i. e. PW 3 and PW 6 have deposed that in front of the shop of Rabindra Sikdar, the other appellants, namely, Fagu Yadav, Munilal Yadav, Naresh Yadav, Nijling Yadav, Lalu Prasad Yadav, Jaykant Yadav and Rajendra Yadav were standing, instigating to kill Parmanand Yadav, as they would not allow him to flee away. Both these witnesses have deposed that Pappu Yadav, Sanjay Yadav and Ranjeet Yadav fired at Parmanand Yadav once each, resulting death of Parmanand Yadav at the spot. Thereafter, all the three assailants fled away from the place of occurrence. Both these witnesses claim to have seen other appellants and accused, namely, Hem Prakash Yadav, Kapildeo Yadav, Banke Bihari Yadav and Brindaban Yadav sitting near the shop of Hem Prakash and making plan to commit murder of Parmanand Yadav and were waiting for Parmanand Yadav. The shop of Hem Prakash is on the west of Godda-Pirpainty road, after the shop of Bharat Lal Yadav, on the south of Basant Roy Road and the shop of Gafoor Mian is towards north of the Nunajore Chowk on the eastern side of the road. The road itself is 20 ft. wide. The shop of Gafoor Mian is intervened by the shop of Arbind Sah and on the south of the shop of Arbind Sah there is drain and after that Bhagaband village road is 15 ft. wide. Thereafter in the south of that Bhagabandh road, the P. O. shop of Rabindra Sikdar is situated, surrounded by Tatia from three sides i. e. north, south and east. It is open towards west, facing the main road. wide. Thereafter in the south of that Bhagabandh road, the P. O. shop of Rabindra Sikdar is situated, surrounded by Tatia from three sides i. e. north, south and east. It is open towards west, facing the main road. From that far reaching distance, the evidence of PW 3 and PW 6 is that they heard instigating and conspiring the other appellants sitting in the shop of Hem Prakash Yadav, is quite improbable. Their claim to have seen the appellants, who were standing outside the shop of Rabindra Sikdar, is possible if they came out of the shop of Gafoor Mian but they would not be able to hear the exhortation of the appellants to shoot at Parmanand Yadav. The persons, who were standing outside the shop of Rabindra Sikdar had not come along with Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandip Yadav alias Pagla, who having revolvers in their hands, entered into the shop of Rabindra Sikdar. It is only against them that they fired once each at Parmanand Yadav, who succumbed to his injuries in the tea-stall itself. PW 4 Nandeshwar Yadav, another eye witness, was sitting outside the saloon of Ramanand Thakur and saw Kapildeo Yadav, Pappu Yadav, Sanjay Yadav, Ranjeet Yadav alias Sandip Yadav alias Pagla, LaluPrasad Yadav and Nijling Yadav talking together. All these named accused have their shops near the Nunajore Chowk and hence it is not surprising that they were talking together. This witness (PW 4) saw Parmanand Yadav getting down from the bus at Nunajore More, who went to the shop of Rabindra Sikdar to take tea. In the meantime, he saw Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Pagla entering into the shop of Rabindra Sikdar, having pistols in their hands, who shot once each at Parmanand Yadav. He has specifically stated that Pappu Yadav gave first shot, which injured at the chest of Parmanand Yadav, the 2nd bullet of Sanjay Yadav injured at his back whereas the 3rd bullet of Ranjeet Yadav injured right shoulder. Parmanad Yadav fell down and died at the spot having sustained three bullet injuries on his person. The other appellants, namely, Lalu Yadav, Nijling Yadav and Kapildeo Yadav, were also present, as they have also got their respective shops nearby the Nunajore Chowk. Parmanad Yadav fell down and died at the spot having sustained three bullet injuries on his person. The other appellants, namely, Lalu Yadav, Nijling Yadav and Kapildeo Yadav, were also present, as they have also got their respective shops nearby the Nunajore Chowk. ( 10 ) PW 4 has deposed that along with him at the saloon of Ramanand Thakur, PW 1 Manoj Yadav was also sitting. PW 1 Manoj Yadav has deposed that the saloon of Ramanand Thakur is 15 hands away from the shop of Rabindra Sikdar at Nunajore More. There are shops of Kapildeo Yadav, Banke Bihari Yadav and Nijling Yadav at Nunajore More. The tea- stall of Gafoor Mian is 20 yards away towards north of the shop of Rabindra Sikdar. The shop of Rabindra Sikdar is open in west and is closed in other three directions. This witness claims that he was there when the others also assembled there. At that time police came and prepared inquest report of the dead body in carbon process, on which he signed along with Bindeshwari Yadav (PW 5) (Exts. 1 and 1/1 ). Thus, the presence of this witness at the saloon of Ramanand Thakur is reliable, who has seen the dead body having sustained injuries of fire arm. PW 3 Devilal claims that in the shop of Gafoor Mian, there were many persons whereas PW 6 informant Rabindra Prasad Yadav has deposed that he and Devilal (PW 3) only were taking tea where Gafoor Mian was not present rather his wife was serving the tea. It is just possible that Nunajore Chowk is surrounded by the shops. The buses stop there and the passengers get down and use to take tea. Some passengers might have gone to the shop of Gafoor Mian, which is not fatal to the prosecution case, as he has deposed in paragraph No. 57 that he and Rabindra Prasad Yadav (PW 6) reached at Nunajore More at 2. 15 p. m. and went in the shop of Gafoor Mian where they sat and took tea by remaining there for 15 to 20 minutes. Both PW 3 and PW 6 were in the shop of Gafoor Mian. After firing there was commotion and the assembled persons fled away hither and thither. 15 p. m. and went in the shop of Gafoor Mian where they sat and took tea by remaining there for 15 to 20 minutes. Both PW 3 and PW 6 were in the shop of Gafoor Mian. After firing there was commotion and the assembled persons fled away hither and thither. Both these witnesses saw the entire occurrence by coming out of the shop of Gafoor Mian, which is quite visible to the P. O. hotel, which is open on its western side, facing the main road. ( 11 ) THE informant (PW 6) along with PW 3 Devilal Yadav went together and saw three bullet injuries on the person of Parmanand Yadav. Subsequently, Manoj Yadav (PW 1) and Nandeshwar Yadav (PW 4) also went there. The informant claims that all the other assailants, who were standing outside the tea-stall in one voice ordered to kill Parmanand Yadav, which he heard from a distance of 5 to 7 hands from the shop of Rabindra Yadav. PW informant has claimed that first bullet was fired by Pappu Yadav, which injured on the chest of Parmanand Yadav. The 2nd bullet was fired by appellant Sanjay Yadav, which injured on the right side of back and the 3rd bullet was fired by RanjeetYadav, which injured the left shoulder. These witnesses i. e. PW 3, PW 4 and PW 6 have claimed that on being injured by three bullet firings, when Parmanad Yadav fell down and died, all the three assailants fled away towards south of the road. The informant admits that the police has not sent up Munilal Yadav, Naresh Yadav and Rajendra Yadav for trial. He has further deposed that seven accused persons, who were standing outside the shop of Rabindra Sikdar along with Hem Prakash, Kapildeo, Banke Bihari and Brindaban, were waiting in the shop of Hem Prakash. The informant had no talk with them but after the occurrence he understood that they were waiting for Parmanand Yadav and making conspiracy. Before that occurrence, the informant had not anticipated that they were conspiring to kill Parmanand Yadav. ( 12 ) IN the present case, the Investigating Officer (PW 9) went to the place of occurrence, saw the dead body of Parmanand Yadav, recorded the Fard-beyan (Ext. 7) of the informant, prepared inquest report (Ext. 8) and recorded the statements of the witnesses. ( 12 ) IN the present case, the Investigating Officer (PW 9) went to the place of occurrence, saw the dead body of Parmanand Yadav, recorded the Fard-beyan (Ext. 7) of the informant, prepared inquest report (Ext. 8) and recorded the statements of the witnesses. The independent witnesses i. e. Arbind Sah, Gafoor Mian, both tea-stall owners, Ramanand Thakur, Saloon owner, Jaykant Sah, Gopal Sikdar and Mantoo Sikdar, having their shops nearby the Nunajore Chowk, have not been made charge-sheeted witnesses, because they have not supported the prosecution case. PW 4 Nandeshwar Yadav has improved the prosecution case in his deposition as he has not stated before the Investigating Officer (PW 9) that Sanjay Yadav, Pagla Yadav, Pappu Yadav, Nijling Yadav and Lalu Yadav were talking with Kapildeo Yadav in the shop of Hem Prakash Yadav. He has also not given statement under Section 161, Cr. P. C. that Pappu Yadav, Ranjeet Yadav and Sanjay Yadav came in the shop of Rabindra Sikdar and fired one bullet each, causing injuries to Parmanand Yadav. He has also developed his statement by saying that Pappu Yadav first fired, causing injury on the chest, the second firing was opened by Sanjay Yadav, which injured on the back and the third firing opened by Ranjeet Yadav alias Pagla injured the right shoulder of Parmanand Yadav. However, the evidence of PW-3 and PW-6 is consistent as the three appellants, namely, Pappu Yadav, Sanjay Yadav and Naresh Yadav had pistols in their hands, who fired once each, causing injuries to Parmanand Yadav, who died due to those injuries. ( 13 ) DR. Ashok Kumar (PW-7), who conducted the autopsy on the dead body of Parmanand Yadav alias Ladua on 15-10-1997 at 10. 45 a. m. , found the following ante-mortem injuries on his person : (I) Lacerated wound in the intra-external notch on the front of the chest in its upper mid portion with blackening in a round margin - 1" x 1" x 4". (ii) Lacerated wound in the mid chest at the level of 3rd inter-coastal space with blackening and charring in a wide spread area of the wound - 4" x 1" x 6". (ii) Lacerated wound in the mid chest at the level of 3rd inter-coastal space with blackening and charring in a wide spread area of the wound - 4" x 1" x 6". (iii) Small lacerated wound on the back in the left extra-scapular area at the level of L1 and L2 vertebra - " x 1/3" x 6" (iv) A dark brownish haemergic area on the back in the right scapular area above the spine of scapula - 1" x " with a very hard feel. After putting a probe again in injury No. (i) it goes near the injury No. (iv ). Injury Nos. (i) and (ii) seem to be wounds of entry of fire arm injury whereas injury No. (iii) seems to be the wound of exit. The doctor extracted from injury No. (iv) the pillet, which he sealed in a vial and handed over to the Constable Bisheshwar Yadav. The death was within 24 hours from the time of post-mortem examination due to shock and haemorrhage from the above injuries caused by fire arms. The Post-Mortem Report is Ext. 5 in his pen and signature. ( 14 ) PW-8 Ramjee Singh produced the sealed packet, containing empty cartridge of one fired bullet in sealed glass vial (Material Exts. I, II and III respectively ). ( 15 ) LEARNED counsel for the appellants in Cr. Appeal Nos. 106 of 2000, 107 of 2000 and 135 of 2000 has submitted that they were not the members of the unlawful assembly, as they were simply standing at Nunajore Chowk where they have got their respective shops. Amongst them, appellant Naresh Yadav was also there, who had no prior meeting with the appellants of Cr. Appeal No. 139 of 2000, namely, Pappu Yadav, Sanjay Yadav and the appellant of Cr. Appeal No. 142 of 2000, namely, Ranjeet Yadav alias Sandip Yadav alias Pagla, who had come and went inside the tea-stall of Rabindra Sikdar. They were unarmed without taking any active participation in causing murder of Parmanand Yadav. The only allegation against them is that PW-3 and PW-6 claimed to have heard these appellants instigating to kill Parmanand Yadav as they would not allow him to flee away by standing outside the shop of Rabindra Sikdar. They were unarmed without taking any active participation in causing murder of Parmanand Yadav. The only allegation against them is that PW-3 and PW-6 claimed to have heard these appellants instigating to kill Parmanand Yadav as they would not allow him to flee away by standing outside the shop of Rabindra Sikdar. Their utterance in a single voice, exhorting to kill Parmanand Yadav, could not have been heard from the tea-stall of Gafoor Mian and has relied a case reported in AIR 1999 SC 3857 : (2000 Cri LJ 19) (Ramji Rai v. State of Bihar ). I have already discussed the evidence of the eye witnesses i. e. PW-3, PW-4 and PW-6, who have claimed to have heard the instigation by remaining at the tea-stall of Gafoor Mian and saloon shop of Ramanand Thakur respectively. These appellants, seven in number, were seen standing outside the shop of Rabindra Sikdar. PW-6 has deposed that he could not hear the talks of these appellants while sitting in the shop of Hem Prakash Yadav. Hence there is no specific evidence as to who gave a Lalkar to kill Parmanand Yadav and hence they could not be fastened with that liability but were convicted with the aid of Section 149 of the Indian Penal Code and has relied the cases, reported in AIR 1995 SC 2411 (Teja Singh v. Mukhtar Singh), (2004) 1 JLJR 124 : (2004 AIR - Jhar HCR 313) (SC) (Bikau Pandey v. State of Bihar) and (2003) 1 SCC 268 : (2003 AIR - Jhar HCR 140 : 2003 Cri LJ 465) (Lalan Rai v. State of Bihar ). ( 16 ) IN the case in hand I have considered the evidence of the eye-witnesses i. e. PW-3, PW-4 and PW-6, who have not heard the talks of the appellants, who had assembled in the shop of Hem Prakash Yadav. The main assailants, three in number, namely, Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandip Yadav alias Pagla, who are appellants in Cr. Appeal Nos. 139 of 2000 and 142 of 2000, only had pistols in their hands, who entered into the tea-stall of Rabindra Sikdar without having any talk with the seven other appellants. The action of the main assailants does not inspire confidence in my mind that there was common object to attract constructive liability of Section 149 of the Indian Penal Code. 139 of 2000 and 142 of 2000, only had pistols in their hands, who entered into the tea-stall of Rabindra Sikdar without having any talk with the seven other appellants. The action of the main assailants does not inspire confidence in my mind that there was common object to attract constructive liability of Section 149 of the Indian Penal Code. Mere presence outside tea shop of Rabindra Sikdar, who had, their respective shops nearby the Nunajore Chowk, cannot render them liable to be the members of unlawful assembly in absence of any proof that they had common object and they actuated their common object of taking active part or committing any overt act in committing murder of Parmanand Yadav. After commission of the crime, the three assailants, namely, Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandip Yadav alias Pagla, fled away towards south of the main Godda-Mahgama Road. There is no evidence that the remaining seven appellants also fled away with them rather it is the evidence of the prosecution that they remained at Nunajore Chowk, although there was commotion and personsassembled there dispersed hither and thither. Their assembly at Nunajore Chowk was merely because they have got their respective shops where the buses also stop and passengers use to take tea in the nearby tea-stalls. I find that there was no prior concert and a common meeting of mind of these appellants before the main assailants entered into the shop of Rabindra Sikdar and opened fire once each, causing injuries to Parmanand Yadav, who died at the spot. As these seven appellants were unarmed and there is no evidence of any overt act against them, hence their assembly can not be said to be unlawful and having no common object to commit murder prior to the alleged murder of Parmanand Yadav, it does not attract Section 149 I. P. C. to convict these appellants. ( 17 ) ON the other hand, there is specific allegation only against Pappu Yadav, Sanjay Yadav (both appellants in Cr. Appeal No. 139 of 2000) and Ranjeet Yadav alias Sandip Yadav alias Pagla (appellant in Cr. Appeal No. 142 of 2000) to have entered into tea shop of Rabindra Sikdar, armed with pistols, without meeting or talking with the other seven appellants. They are alleged to have fired each causing injuries to Parmanand Yadav, who died at the spot. Dr. Appeal No. 139 of 2000) and Ranjeet Yadav alias Sandip Yadav alias Pagla (appellant in Cr. Appeal No. 142 of 2000) to have entered into tea shop of Rabindra Sikdar, armed with pistols, without meeting or talking with the other seven appellants. They are alleged to have fired each causing injuries to Parmanand Yadav, who died at the spot. Dr. Ashok Kumar (PW-7), who conducted autopsy on the dead body of Parmanand Yadav, found blackening and charring, caused due to fire arms, which supports that at a very close range inside the shop these three appellants of Cr. Appeal Nos. 139 of 2000 and 142 of 2000 opened fire at Parmanand Yadav. The ocular evidence of PW-3, PW-4 and PW-6 gets supported by the medical evidence of Dr. Ashok Kumar (PW-7 ). ( 18 ) WHEN considered the evidence of PW-3, PW-4 and PW-6, I find that their evidence is only in respect of appellants Pappu Yadav, Sanjay Yadav (both in Cr. Appeal No. 139 of 2000) and Ranjeet Yadav alias Pagla (Cr. Appeal No. 142 of 2000), causing injuries by firing once each with their respective pistols. They have given the details regarding the manner of the alleged firing, causing injuries to Parmanand Yadav, who fell down and died at the spot. Their evidence is corroborated by the medical evidence of Dr. Ashok Kumar (PW-7 ). Hence their conviction under Section 302/34, I. P. C. by the learned Court below does not require any interference. With regard to other appellants, who were unarmed, having no allegation of any overt act, except giving a joint Lalkar to kill Parmanand Yadav, their conviction under Section 302/149 of the Indian Penal Code is not cogent in absence of any proof that they were the members of unlawful assembly and had their prior meeting of minds to implement their common object to cause murder of Parmanand Yadav. It is simply because Pappu Yadav, Sanjay Yadav and Ranjeet Yadav directly went and entered into the shop of Rabindra Sikdar, where Parmanand Yadav was taking tea. They had no talk or meeting with these seven appellants of Cr. Appeal Nos. 106, 107 and 135 of 2000. It is simply because Pappu Yadav, Sanjay Yadav and Ranjeet Yadav directly went and entered into the shop of Rabindra Sikdar, where Parmanand Yadav was taking tea. They had no talk or meeting with these seven appellants of Cr. Appeal Nos. 106, 107 and 135 of 2000. The learned Court below has not considered the evidence of the witnesses i. e. PW-3, PW-4 and PW-6, who are closely related with the deceased whose evidence is also not in consonance with the prosecution case that they were the members of an unlawful assembly and had assembled there with a common object to cause murder of Parmanand Yadav. Hence the conviction and sentence, passed by the learned Court below against these appellants under Section 302/149 of the Indian Penal Code cannot be sustained and they deserve acquittal. ( 19 ) SO far the conviction of appellants Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Sandip Yadav alias Pagla is concerned, they are the main assailants against whom there is reliable evidence of the interested witnesses, without any contradiction, to have fired once each causing injuries to parmanand Yadav, who died at the spot. Hence their conviction under Sections 302/149 of the Indian Penal Code cannot be interfered with, as the learned Court below having considered all the evidence, oral and documentary, found substance to convict them under Sections 302/149 of the Indian Penal Code. ( 20 ) WHEN considered the evidence of the interested witnesses i. e. PW-3, PW-4 and PW-6 and the evidence of Dr. Ashok Kumar (PW-7), I am of the view that there is no evidence against Naresh Yadav in Cr. Appeal No. 135 of 2000 that he was also armed and had entered into the shop of Rabindra Sikdar to cause murder of Parmanand Yadav rather he was one of the appellants, who were standing outside the shop of Rabindra Sikdar. He had no talk or meeting with Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Pagla prior to their entry into the shop of Rabindra Sikdar. Taking into consideration all these evidence appearing against Naresh Yadav, who has been convicted under Section 302/149 of the Indian Penal Code, benefit of doubt is given to him, holding that he deserves acquittal. He had no talk or meeting with Pappu Yadav, Sanjay Yadav and Ranjeet Yadav alias Pagla prior to their entry into the shop of Rabindra Sikdar. Taking into consideration all these evidence appearing against Naresh Yadav, who has been convicted under Section 302/149 of the Indian Penal Code, benefit of doubt is given to him, holding that he deserves acquittal. In view of these finding the Death Reference against him along with other co-convicts, namely, Pappu Yadav and Sanjay Yadav, seems to be only because once he was convicted in the murder case of Upendra Yadav, brother of Parmanand Yadav, along with other two convicts, namely, Pappu Yadav and Sanjay Yadav and hence the learned Court below has passed the capital punishment against him also, which cannot be sustained. In view of my above finding, he deserves acquittal, giving him benefit of doubt for the offence, punishable under Section 302/149 of the Indian Penal Code. ( 21 ) AFTER considering the facts, evidence, oral and documentary, and the circumstances, I have come to the conclusion that the learned Court below has rightly convicted appellants Pappu Yadav and Sanjay Yadav under Section 302/149 of the Indian Penal Code, hence on the quantum of sentence, as both of them i. e. appellants Pappu Yadav and Sanjay Yadav in Cr. Appeal No. 139 of 2000 have been awarded capital punishment, I have to consider as to whether their cases come under the "rarest of the rare cases. " ( 22 ) LEARNED counsel for the appellants on this point as relied upon the cases, reported in AIR 1999 SC 3857 : (2000 Cri LJ 19) (Ramji Ram v. State of Bihar), AIR 1997 SC 2598 (Krishan v. State of Haryana), AIR 1995 SC 2411 (Teja Singh v. Mukhtar Singh) AIR 1999 SC 1221 (Nirmal Singh v. State of Haryana - Pr. 6), (2002) 4 SCC 679 : (2002 Cri LJ 2631) (Dharmendra Singh alias Man Singh Ratan Singh v. State of Gujarat-Pl. 6), (2002) 4 SCC 679 : (2002 Cri LJ 2631) (Dharmendra Singh alias Man Singh Ratan Singh v. State of Gujarat-Pl. F), (1980) 2 SCC 684 (Bachan Singh v. State of Punjab), (2002) 6 SCC 663 : (2002 Cri LJ 3741) (State of Punjab v. Gurmej Singh), (2003) 7 SCC 258 : (2003 Cri LJ 3764) (Gurder Singh v. State of Punjab), (2003) 2 SCC 501 : (2003 Cri LJ 918) (Devender Pal Singh v. State, NCT of Delhi), AIR 1983 SC 957 (Machhi Singh v. State of Punjab) and AIR 1983 SC 473 (Mithu v. State of Punjab ). ( 23 ) LEARNED A. P. P. has also placed his reliance on the authorities, relied by the learned counsel for the appellants. The learned Court has also considered the ratio, decided in Machhi Singhs case (supra) and has also considered the evidence, available on record that although provisions contained under Section 303 of the Indian Penal Code has already been struck down by a decision, reported in AIR 1983 SC 957 (supra), he has opined that it is a fit case in which the convicts should be sentenced to death. The learned A. P. P. has placed reliance on the judgment and order of conviction (Ext. 11) wherein Pappu Yadav, Sanjay Yadav and Naresh Yadav were convicted for the murder of Upendra Yadav and were sentenced to undergo life imprisonment. In the said case, Parmanand Yadav was the informant, who was always threatened and Exts. 10 and 10/1 are the letters of threatening, to cause his murder as he was the informant in that case and had deposed against the convicts, resulting their conviction and sentence to undergo imprisonment for life. After being released in that case, the convicts Pappu Yadav, Sanjay Yadav and Naresh Yadav were found to have formed unlawful assembly to commit murder of Parmanand Yadav and committed his murder in the tea-stall of Rabindra Sikdar. The learned 1st Additional Sessions Judge, Gooda, has found that once the convicts have been sentenced to undergo life imprisonment, he chose alternative punishment of hanging. The learned A. P. P. has relied the case reported in AIR 1999 SC 1221 (supra) (Pl. The learned 1st Additional Sessions Judge, Gooda, has found that once the convicts have been sentenced to undergo life imprisonment, he chose alternative punishment of hanging. The learned A. P. P. has relied the case reported in AIR 1999 SC 1221 (supra) (Pl. B), wherein, it has been held that accused having been convicted earlier for rape and subsequently attacked the family members of the victim and caused death of all the five persons by giving brutal and merciless axe blows - His act is an act of depraved mind and is of most brutal and heinous in nature - Cannot but be held to be rarest of rare cases for awarding extreme penalty of death sentence. Learned A. P. P. has also relied a case, report in (2003) 7 SCC 258 : (2003 Cri LJ 3764) (supra) in which it has been held that the appellants, who were awarded death sentence by the Courts below, there were many mitigating circumstances to award lesser sentence, which the Sessions Court and the High Court had not taken into consideration. It was contended that the appellants were young at the time of commission of crime and no motive whatsoever was proved against them. The appellants had no criminal antecedent and there was nothing on record to show that they would be a menace of the society or that they were beyond the pale of any reformation. ( 24 ) IN the present case, the fact in hand is that both these appellants had criminal history as they were sentenced to undergo life imprisonment for committing murder of Upendra Yadav. While on bail in that case, they committed murder of Parmanand Yadav, who was the younger brother of Upendra Yadav. This was only to taken revenge that they were convicted and sentenced only on the information, lodged by Parmanand Yadav and who also took active role in proving the prosecution case. That act was confined only amongst two groups, who were in inimical terms and that is not a menace to the society, as the neighbours or villagers were not being threatened to be killed. There is only one murder in each case. That act was confined only amongst two groups, who were in inimical terms and that is not a menace to the society, as the neighbours or villagers were not being threatened to be killed. There is only one murder in each case. The facts of the case, as relied by the learned A. P. P. , is that there was murder of innocentpersons also and the aggravating circumstances against the appellants was that while a feast was going on, they started firing, causing murder of 13 persons and causing injuries to 8 others seriously. The age of some of the victims ranged between 15 to 17 years against whom there was no grievances or enmity. In view of the facts and circumstances of that case, the death sentence of the appellants was confirmed. In the present case, as I have considered that only due to enmity and conviction in earlier case, lodged on the information of Parma-nand Yadav, he was eliminated by the convicts Pappu Yadav and Sanjay Yadav. There is no menace to the society. In the case of Bachan Singh (supra) the suggestion of Dr. Chitale was quoted as which are "aggravating circumstances" which the Court may impose the penalty of death in its discretion : (A) If the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the Armed Forces of the Union or a member of any police force or of any public servant and was committed - (i) While such member or public servant was on duty; or (ii) in consequence of anything done or admitted to be done by such member or public servant in the lawful discharge of his duty as member of public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person, who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to Magistrate or a Police Officer, demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. ( 25 ) THE mitigating circumstances which can be exercised by the Court were also mentioned as : (I) That the offence was committed under the influence of extreme mental or emotional disturbance (ii) The age of the accused. If the accused is young or old, he shall not be sentenced to death (iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society (iv) The probability that the accused can be reformed and rehabilitated the State shall by evidence prove that the accused does not satisfy the conditions (iii) and (iv) above (v) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence (vi) That the accused acted under the duress or domination of another persons (vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. In the case of Machhi Singh (supra) the guidelines, indicated in Bachan Singhs case (supra) applied to the facts of each individual case where the question of imposing death sentence arises. The following propositions emerged from Bachan Singhs case (supra), as quoted in paragraph No. 33 in the case of Machhi Singh (1983 Cri LJ 1457) (supra ). Paras 33 and 34 (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability ; (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime; (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided, the option to impose sentence of imprisonment of life cannot be conscientiously exercised having regard to the natureand circumstances of the crime and all the relevant circumstances; (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances has to be accorded with full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. While applying these guidelines, inter alia, the following questions may be asked and answered : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender. ( 26 ) IN the present case, the aggravating circumstances against the convicts is that once they were convicted to undergo life imprisonment and while on bail, they have committed the second murder. They had threatened the informant of this case to cause his murder and the informant of this case is also apprehending danger of his life, which is only presumption as there is enmity in between the parties. The learned 1st Additional Sessions Judge has considered these aspects while awarding capital punishment. The mitigating circumstances against these convicts are that Pappu Yadav is aged about 25 years and Sanjay Yadav is aged about 23 years and are young boys. Outside the inimical circumference, there is no other activity that they are menace to the society. The murder of Parmanand Yadav is not brutal as only once they have fired without any repetition and fled away from the place of occurrence. When balanced the aggravating and mitigating circumstances against the convicts I find that the balance of mitigating circumstances carry much weightage than the aggravating circumstances as they are in the age group of 23 to 25 years and the murder of Parmanand Yadav was not brutal, as they have fired only once each. ( 27 ) BEARING in mind the above principles, I find that the trial Court has not applied its mind to the above principles and has proceeded more on philosophic than on realistic grounds. The reasons given by the trial Court which I have mentioned under what circumstances he awarded death sentence, in my opinion, do not conform to the guidelines, laid down in the cases of Machhi Singh (supra) and Bachan Singh (supra ). The murder in the society, in the facts and circumstances of the case, is not the rarest case which is rather prevalent in the society without creating any menace to the society. The murder in the society, in the facts and circumstances of the case, is not the rarest case which is rather prevalent in the society without creating any menace to the society. Murder, as its, is though heinous and liable for sentence befitting the crime, I do not think that the present case could be brought under the maxim "rarest of the rare cases" so as to award the extreme penalty of death on the appellants, when there is alternative punishment of life imprisonment. Accordingly, the capital sentence awarded against both these two appellants, namely, Pappu Yadav and Sanjay Yadav, in Cr. Appeal No. 139 of 2000 is altered into imprisonment for life. As such, the Death Reference No. 3 of 2000 against these two convicts/appellants is answered in the negative. ( 28 ) IN view of my above findings, so far appellants Rajendra Prasad Yadav, Jaykant Yadav, Lalu Yadav, Nijling Yadav (all in Cr. Appeal No. 106 of 2000), Fagu Yadav and Munilal Yadav (both in Cr. Appeal No. 107 of 2000), Naresh Yadav (appellant in Cr. Appeal No. 135 of 2000) are concerned, their appeals are allowed and they are hereby acquitted of the charges, giving them benefit of doubt. As they are in custody, they are ordered to be released forthwith from the custody, if not wanted in any other case. ( 29 ) ON the other hand, appellants Pappu Yadav and Sanjay Yadav (both in Cr. Appeal No. 139 of 2000) and Ranjeet Yadav alias Sandip Yadav alias Pagla (in Cr. Appeal No. 142 of 2000) are concerned, I find no merit in these appeals, which are hereby dismissed with the modification in their sentence in respect of appellants of Cr. Appeal No. 139 of 2000. ( 30 ) S. J. MUKHOPADHAYA, J. :- I agree. Order accordingly. --- *** --- .