Judgment C.K.PRASAD and REKHA KUMARI JJ. 1. Kamleshwari Yadav alias Kamo Yadav, Ram Das Yadav, Ramanand Yadav and Murari Yadav were put on trial for committing the murder of Rajniti Yadav alias Lilo Yadav as also Balo Yadav in furtherance of their common intention, punishable under Sec. 302/34 of the Indian Penal Code. They were also charged for illegal possession of firearms for illegal purpose of committing the murders of the aforesaid persons, punishable under Sec. 27 of the Arms Act. 4th Additional Sessions Judge, Begusarai by judgment and order dated 3rd of March, 2003 and 5th of March, 2003 held them guilty on both the counts and inflicted the sentence of death to each of the appellants unde Section 302/34 of the Indian Penal Code but no separate sentence was awarded under Sec. 27 of the Arms Act. The learned Judge has submitted the proceeding to this court under Sec. 366 of the Code of Criminal Procedure for confirmation of the death sentence which had led to registration of Death Reference Case No. 4 of 2003. Convicts (hereinafter referred to as the appellants) aggrieved by the aforesaid judgment of conviction and sentence have also preferred appeal which has been registered as Criminal Appeal No. 115 of 2003. 2. Both the death reference and appeal were heard together and are being disposed of by this common judgment. 3. Prosecution started on the basis of oral statement given by P.W. 5 Mridul Yadav before the Officer-lncharge of Sahebpur Kamal Police Station on 17.5.2000 at 3 A.M. at village Sahebpur Kamal Nabtolia. According to the informant, he alongwith his father Balo Yadav were sleeping at the roof of his uncles house nearby. At about 1 A.M. both of them woke up at the alarm of his brother Rajniti Yadav alias Lilo Yadav to save him from inside the room situated at the ground floor of their house. Informant flashed the torch light and in that saw the four appellants herein besides four other accused standing in the courtyard. According to him, appellant Murari Yadav was armed with rifle and the remaining accused persons were armed with pistol. His father came down from the roof and rushed towards the room to save his brother Rajniti Yadav @ Lilo Yadav, from where she was raising the alarm. According to him, appellant Murari Yadav was armed with rifle and the remaining accused persons were armed with pistol. His father came down from the roof and rushed towards the room to save his brother Rajniti Yadav @ Lilo Yadav, from where she was raising the alarm. Informant heard the sound of hearing and saw his brother Rajniti Yadav @ Lilo Yadav fleeing away towards north. Out of the eight accused persons which included the appellants herein, five persons were standing at a distance of about 10 feet south of the road resorted to indiscriminate firing which caused injury to his brother and he fell down. According to the first information report, appellant Kamleshwari Yadav, accused Lalan Yadav and Asmani Yadav, who were armed with rifles, came out of the room where the sound of firing was heard. They threatened that in case anybody comes near them, they shall be shot dead. After committing the crime according to the prosecution, all the accused persons fled away towards north-east direction. After departure of the accused persons, when the informant went inside the room saw his father lying dead having gun shot injuries on the head and several parts of his body. He also went to his brother Rajniti Yadav @ Lilo Yadav, but found him dead with gun shot injuries on his person. After the incident, the villagers collected. 4. According to the first information report the motive for the occurrence was that a case was lodged against appellant no.1 Kamleshwari Yadav @ Kamo Yadav and his associates in which they were awarded punishment and ten days prior to the incident they were enlarged on bail and on account of that enmity the accused persons have committed the crime. 5. According to the informant, his family members had seen the occurrence. 6. On the basis of the aforesaid information Sahebpur Kamal P.S. Case No. 76 of 2000 was registered under Sec. 302/34 of the Indian Penal Code and 27 of the Arms Act against eight accused persons including the appellants herein. Police after usual investigation submitted charge-sheet against all the accused persons but four accused persons, namely, Sheojee Yadav, Arun Yadav, Lalan Yadav and Asmani Yadav were not apprehended and they were charge-sheeted showing them to be absconder. Police after usual investigation submitted charge-sheet against all the accused persons but four accused persons, namely, Sheojee Yadav, Arun Yadav, Lalan Yadav and Asmani Yadav were not apprehended and they were charge-sheeted showing them to be absconder. Appellants were ultimately committed to the Court of Sessions to face the trial, where they were charged for murder of Rajniti Yadav and Balo Yadav in furtherance of their common intention punishable under Sec. 302/34 of the Indian Penal Code as also possessing firearm for unlawful purposes punishable under Section 27 of the Arms Act. 7. Appellants pleaded not guilty and claimed to be tried. 8. Prosecution in support of its case had altogether examination nine witnesses, out of whom P.W. 1 Jito Devi and P.W. 5 Mridul Yadav claim to be the eye-witnesses to the occurrence, P.W. 2 Raj Mani Devi, P.W. 3 Setho Yadav and P.W. 4 Angad Yadav do not claim to be the eye-witnesses to the occurrence but have been examined to corroborate the case of the prosecution. P.W. 6 Sanjeet Kumar Yadav and P.W. 7 Lalan Yadav are formal witnesses. P.W. 8 Dr. Pramod Kumar Singh had conducted post mortem examination of the dead bodies of the two deceased, whereas P.W. 9 Purushottam Kumar Singh is the Investigating Officer of the case. 9. Defence of the appellants is of false implication. From the trend of cross-examination their defence further appear to be that the deceased were veteran criminals and killed by unknown criminals and on account of previous enmity, appellants have been implicated in the case. However no defence witness has been examined. 10. The court below on appraisal of evidence, oral and documentary, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellants as above. 11. Evidence of the witnesses have been setout in detail by the trial court and we do not consider it expedient to incorporate the same, excepting those part of the evidences which have direct bearing on the case. 12. P.W.1 Jito Devi is an eye-witness to the occurrence and happens to be the widow of deceased Rajniti Yadav @ Lilo Yadav. According to her evidence, she was lying on a cot in the veranda out side her room when appellant no. 4 Murari Yadav, appellant no.1 Kamleshwari Yadav, appellant no. 3 Ramanand Yadav and appellant no. 12. P.W.1 Jito Devi is an eye-witness to the occurrence and happens to be the widow of deceased Rajniti Yadav @ Lilo Yadav. According to her evidence, she was lying on a cot in the veranda out side her room when appellant no. 4 Murari Yadav, appellant no.1 Kamleshwari Yadav, appellant no. 3 Ramanand Yadav and appellant no. 2 Ram Das Yadav besides two other accused persons came there. Appellant Kamo Yadav as also accused Lalan Yadav were armed with rifle whereas others were armed with countrymade pistol. Appellants Kamo Yadav, Murari Yadav and Ramanand Yadav entered into the room and started assaulting her husband Rajniti Yadav. She tried to save her husband but she was pushed away. She raised alarm addressed to her father-in-law to save them. Her father-in-law Balo Yadav came and went into the room to save her husband but he was shot at by rifle. Her husband fled away from the room but was chased by appellants Kamleshwari Yadav @ Kamo Yadav, Murari Yadav, Ramanand Yadav and other accused persons and fired at. Sustaining fire- arm injuries, her husband fell down and died. Motive for the occurrence according to this witness is that appellant Murari Yadav and two other accused persons had assaulted her father-in- law ten years ago and in that case appellant Murari Yadav besides others were convicted and sentenced. A fortnight ago they were released on bail and because of that they had committed the occurrence. She had identified the four appellants during trial but had stated that she did not identify the remaining four accused persons who were not present. 13. In the cross-examination she had stated that there was no dispute with her husband. According to her, the house of appellant Kamo Yadav was situated on a land over which her father-in-law had constructed a house. In paragraph 46 of the cross-examination she had stated that her brother-in-laws (Bhaisur and Devar) were not present at the time of occurrence and in fact there was no male member in the house at that time and on her alarm male members had come. She had also denied the suggestion that her father-in-law and husband were persons of criminal antecedent and killed by unknown criminals. 14. P.W. 5 Mridul Yadav is the informant of the case and claims to be an eye-witness to the occurrence. She had also denied the suggestion that her father-in-law and husband were persons of criminal antecedent and killed by unknown criminals. 14. P.W. 5 Mridul Yadav is the informant of the case and claims to be an eye-witness to the occurrence. According to him, in the night of the occurrence he was sleeping alongwith his father at the roof of his uncle Ram Bahadur Yadav. At about 1 Oclock he heard the scream of his brother Rajniti Yadav to save him. He woke up and in the torch light and the moonlit night, saw accused persons in the courtyard and five accused persons standing outside. Out of whom appellants Murari Yadav, Ramanand Yadav and Ram Das Yadav were standing in the courtyard, Murari Yadav was armed with rifle, whereas the other accused persons were armed with countrymade pistol. His father Balo Yadav got down from the roof, went into the room of his brother Rajniti Yadav to save him. In the said room three accused persons including appellant Kamleshwari Yadav @ Kamo Yadav were present armed with rifle. They fired at his father, whereupon his father asked his brother Rajniti Yadav to flee away from there. The aforesaid three accused persons chased him and the five accused persons standing outside the house shot dead his brother. After committing the crime, all the accused persons fled away towards north. According to him, prior to the occurrence a case was filed against appellants Kamleshwari Yadav and Murari Yadav besides other accused persons for commission of the offence of attempt to murder his father, in which they were convicted and released on bail ten days before the occurrence. Another motive for commission of the crime, according to this witness, was the purchase of the land in the name of his mother from the niece of appellant Kamleshwari Yadav. According to his evidence, Kamleshwari Yadav sold the land over which his house earlier existed to his niece Usha Devi who in turn sold the same to his mother, over which his father had constructed a house. 15. In the cross-examination he had stated that the dead body of his brother Rajniti Yadav was at his veranda one pole south to the road. According to him, villagers did not reach at the place of occurrence due to indiscriminate firing by the accused persons. 15. In the cross-examination he had stated that the dead body of his brother Rajniti Yadav was at his veranda one pole south to the road. According to him, villagers did not reach at the place of occurrence due to indiscriminate firing by the accused persons. He had asserted that he did not send any person to the Police Station nor he himself had gone there. He feigned ignorance to the suggestion of the accused persons in the cross-examination that his father and brother were accused in many cases. He had further denied suggestion that the deceased were members of a criminal gang and killed in gang rivalry. 16. P.W. 2 Raj Manti Devi happens to be the widow of Balo Yadav and does not claim to be an eye-witness to the occurrence. Similarly P.W. 3 Setho Yadav and P.W. 4 Angad Yadav, sons of the deceased Balo Yadav and brother of deceased Rajniti Yadav do not claim to be the eye-witnesses to the occurrence. According to them, they were at a cattle shed near the house and on the alarm came to the house and saw the appellants and other accused persons fleeing away from the place of occurrence variously armed. 17. P.W. 4 Angad Yadav had stated in his cross-examination that after he came to the house his sister-in-law (Bhaujai) told him about the occurrence. Thereafter he went to inform the Sub-Inspector of Police and on information that murder had been committed at his house the Sub-Inspector of Police came. He also stated that he had divulged the names of the assailants to the Sub-Inspector of Police at the Police Station but he did not record at the Police Station but recorded it at his Darwaja. He had also stated that he disclosed the names of the assailants at the Darwaja but had not put signature of affixed thumb impression. He had also stated that after the accused persons fled away, large number of villagers including the neighbours collected. 18. P.W. 6 Sanjeet Kumar Yadav and P.W. 7 Lalan Yadav are witnesses to the Inquest reports and have proved their signatures thereon. They are also witnesses to the seizure of four empty cartridges from near the dead body of Rajniti Yadav and one empty cartridge and bullet from near the dead body of Balo Yadav inside the house. 19. 18. P.W. 6 Sanjeet Kumar Yadav and P.W. 7 Lalan Yadav are witnesses to the Inquest reports and have proved their signatures thereon. They are also witnesses to the seizure of four empty cartridges from near the dead body of Rajniti Yadav and one empty cartridge and bullet from near the dead body of Balo Yadav inside the house. 19. P.W. 8 Pramod Kumar Singh, at the relevant time was posted as Civil Assistant Surgeon at Sadar Hospital, Begusarai. According to him, on 17th of May, 2000 he performed post mortem examination on the dead body of Balo Yadav and found following ante mortem injuries on his person: (i) There was 5 c.m. x 4 c.m. wound with charred margins in left upper neck which communicated to an exist wound on the lateral right aspect of neck. (ii) One firearm wound with charring over left arm with exit in apex of axilla about 5 c.m. x 4 c.m. (iii) One firearm entry wound in left cheek about 6 cm. x 5 cm. with communication to inside skull, the path way filled with blood and clot including brain material. The bullet was extracted from right parietal region. 20. In the opinion of the doctor, Balo Yadav died on account of neurogenic as well as haemorrhagic shock due to the injuries caused by firearm. The doctor also extracted bullet from the dead body of the deceased Balo Yadav. In his opinion time elapsed since death was 6 to 24 hours. He had proved the post mortem report (Ext.-4). 21. Further on the said day, this doctor performed post mortem examination on the dead body of deceased Rajniti Yadav and found following ante mortem injuries on his person: (i) One through and through firearm injury with charring on the interior surface creating about 6 c.m. x 5 c.m. hole. (ii) One charred firearm injury 5 c.m. x 5 c.m. in interior axillary fold and traversing through to posterior medial scalpular region from where a bullet "was recovered. (iii) One 5 c.m. x 4 c.m. wound with onwards margin in left post anricular region traversing through the posterior part of brain, bullet trapped in right side of skull behind petrous part of temporal bone. Brain material was full of blood and clot. Bones adjacent to trapped bullet was fractured and there was bleeding from right anditory meatus. (iv) One 6 cm. x 3 cm. Brain material was full of blood and clot. Bones adjacent to trapped bullet was fractured and there was bleeding from right anditory meatus. (iv) One 6 cm. x 3 cm. scalp deep wound postero-superior to injury no. iii with confused lacerated margins were found. (v) Left side lung with pleura were at lateral aspect due to injury no. ii and there was blood and clot in the left thoracic case. 22. In the opinion of the doctor, Rajniti Yadav died due to shock, neurogenic as well as haemorrhagic caused by firearm. According to him, injury no. iv was caused by hard and blunt substance. He had also extracted two bullets from the body of the deceased Rajniti Yadav. In his opinion, time elapsed since death was between 5 to 24 hours. He had proved his post mortem report (Ext.-4/1). 23. P.W. 9 Purushottam Kumar Singh, at the relevant day, was posted as the Officer-lncharge of Sahebpur Kamal Police Station and happens to be the Investigating Officer of the case. According to him, on 17.5.2000 at 1.30 A.M. he received information that two persons have been killed in Sahebpur Kamal Nabtolia and after entering the said information in the Station diary, proceeded for the village alongwith armed forces and officers. He recorded the fardbeyan of informant Mridul Yadav at the village, who put his thumb impression over the same. He inspected the place of occurrence and found the dead body of deceased Balo Yadav in a room. Blood in huge quantity was also found there. He also found empty cartridge and brass bullet from near his dead body. The house of Ram Bahadur Yadav where the informant and the deceased Balo Yadav were sleeping was found to be at a distance of about 40 feet east to the houswhere the incident had taken place. He saw the dead body of deceased Rajniti Yadav in the Sahan land 60 feet north to the house where blood in huge quantity was also found. He also found four empty cartridges near his body. He seized the empty cartridges and the bullet recovered from near the dead bodies of Rajniti Yadav and Balo Yadav and prepared the seizure list in presence of the witnesses. He had also proved the seizure list (Ext.-7). He had also made inquest reports of the two deceased in presence of the witnesses and proved the same (Ext.-8 and 8/1). He seized the empty cartridges and the bullet recovered from near the dead bodies of Rajniti Yadav and Balo Yadav and prepared the seizure list in presence of the witnesses. He had also proved the seizure list (Ext.-7). He had also made inquest reports of the two deceased in presence of the witnesses and proved the same (Ext.-8 and 8/1). He had asserted that P.W. 4 Angad Yadav had told him about the incident at the place of occurrence but had not gone to the Police Station. 24. Mr. Akhileshwar Prasad Singh, appearing on behalf of the appellants draws our attention to the evidence of P.W. 4 in his cross-examination wherein he had stated that he went to the Police Station and informed of the murders having been committed in his house and also divulged the names of the assailants to the SubInspector of Police at the Police Station. He points out that the aforesaid information disclosed commission of a cognizable offence which must have been recorded at the Police Station but this earliest information given to the police in regard to the incident has been deliberately withheld, soas to conceal the real truth. This failure on part of the prosecution, according to Mr. Singh creates grave doubt and, as such, the appellants are entitled to be given the benefit thereof. 25. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State, however, submits that no such information was recorded at the Police Station and hence the question of withholding the said information by the prosecution does not arise at all. 26. Having considered the rival submission, we find substance in the submission of Mr. Prasad. True it is that P.W. 4 Angad Yadav had stated in his cross-examination that he was told about the occurrence by his sister-in-law and he went to the Police Station and narrated about the murder and divulged the names of the assailants but at the same time he had stated that the Sub-Inspector of Police did not record his statement at the Police Station but recorded at his Darwaja. Thus it seems that in fact his statement was not recorded at the Police Station and under stress of cross-examination the aforesaid statement was made. In the cross-examination he had also stated that neither he had put his signature nor affixed his thumb impression. Thus it seems that in fact his statement was not recorded at the Police Station and under stress of cross-examination the aforesaid statement was made. In the cross-examination he had also stated that neither he had put his signature nor affixed his thumb impression. Had his statement recorded at the Police Station by the Sub-Inspector of Police, he ought to have put his signature or the L.T.I, thereon. From the evidence of the Investigating Officer P.W. 9 Purushottam Kumar Singh in paragraph 36 of his cross-examination, it is also evident that P.W. 4 Angad Yadav did not give any such statement at the Police Station. In the said paragraph this witness has stated that Angad Yadav had told him about the occurrence at the place of occurrence itself and not by going to the Police Station. 27. Mr. Singh, then submits that according to the prosecution itself the occurrence had taken place on account of previous enmity. He points out that accused persons were eight in number and armed with deadly weapon and had come in proximity with the witnesses and in such circumstance it shall be unnatural on their part to leave them, so that they become witnesses to the crime at a later stage. This according to Mr. Singh is absolutely improbable and, as such, the prosecution story deserves to be rejected. 28. We do not find any substance in the submission of the learned Counsel. Human behaviour has always been a mystery to human being. What weighed with the appellant for not causing the murder of other witnesses cannot be explained by the prosecution. P.W.1 Jito Devi and P.W. 5 Mridui Yadav are eye-witnesses to the occurrence and they have supported the case of the prosecution. This has been corroborated by the evidence of other witnesses. In our opinion their testimony is not fit to be rejected only on the ground that they themselves have not been killed by the accused persons. 29. Mr. Singh, then submits that according to the prosecution, the accused persons had resorted to indiscriminate firing which must have drawn the attention of the villagers but none of the villagers living nearby have been examined to support the case of the prosecution. 30. Mr. 29. Mr. Singh, then submits that according to the prosecution, the accused persons had resorted to indiscriminate firing which must have drawn the attention of the villagers but none of the villagers living nearby have been examined to support the case of the prosecution. 30. Mr. Prasad points out that the case of the prosecution shall depend upon the evidence on record and in case it is trust-worthy the case of the prosecution shall not fail, if other witnesses have not been examined. 31. We find substance in the submission of Mr. Prasad. In our opinion, the truthfulness or otherwise of the case of the prosecution is depended upon the veracity of the evidence on record. We cannot lose sight of the fact about the change of value in daily life and the co-villagers reluctance to depose in the case. 32. Mr. Singh submits that according to the prosecution, motive of the occurrence is alleged purchase of property of appellant Kamleshwari Yadav in the name of the wife of deceased Balo Yadav and construction of house thereon by the deceased Balo Yadav. He further submits that another motive for commission of the crime is the alleged conviction of Kamleshwari Yadav and Murari Yadav in a case of attempted murder of Balo Yadav but same have not been proved. According to him, when the prosecution had alleged motive of the occurrence, it was obligatory on it to prove the same. 33. Mr. Prasad, submits that motive is always lodged in the heart of the accused and case of the prosecution shall not fail in case the motive is not proved and the court finds the evidence of the witnesses worthy of reliance. He points out that the submission made on behalf of the appellants that motive has not been proved is erroneous. 34. We find substance in the submission of Mr. Prasad. Witnesses examined in the case have clearly stated that appellant Kamleshwari Yadav and Murari Yadav were convicted in a case of attempted murder alongwith other accused persons and they were released on bail a fortnight ago and thereafter committed the murder. They have also stated that appellant Kamleshwari Yadav sold his homestead land to his niece, who in turn executed a sale deed in the name of the wife of the deceased Balo Yadav. They have also stated that deceased Balo Yadav had constructed a house thereon. They have also stated that appellant Kamleshwari Yadav sold his homestead land to his niece, who in turn executed a sale deed in the name of the wife of the deceased Balo Yadav. They have also stated that deceased Balo Yadav had constructed a house thereon. There is nothing in their cross-examination to discredit their evidence on these points. Merely the fact that judgment convicting them or the sale deed have not been produced itself shall not erase their evidence. 35. P.W. 1 Jito Devi and P.W. 5 Mridui Yadav are eye-witnesses to the occurrence. P.W. 2 Raj Mani Devi, P.W. 3 Setho Yadav and P.W. 4 Angad Yadav had come to the place of occurrence immediately after the incident and have seen the appellants fleeing away from there variously armed. According to the eye witnesses, the two deceased were done to death by firearms. P.W. 8 Dr. Pramod Kumar Singh, who had conducted the postmortem examination, had found several fire arm injuries on the persons of the deceased. Thus the evidence of the eyewitnesses have been corroborated by the other witnesses as also the medical evidence. Further it is corroborated by the evidence of the Investigating Officer P.W. 9 Pursushottam Kumar Singh, who had found copious blood where the deceased were murdered. Presence of empty cartridges near the place of occurrence also lends support to the case of the prosecution. Prompt reporting of the first information report is also a relevant consideration and this also lends support to the case of the prosecution. 36. Accordingly, we are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubts. 37. Mr. Singh, lastly submits that the case in hand does not fall with the category of rarest of a rare case so as to call for extreme penalty of death. 38. Mr. Prasad, however, contends that appellant Kamleshwari Yadav @ Kamo Yadav and Murari Yadav, while on bail, have committed the offence and, as such, the court below did not err in inflicting the punishment of death. 39. The court below while considering the question of sentence found absence of any immediate reason for committing the murder of two persons. According to the learned Judge, it was committed to show a sheer criminal mentality. 39. The court below while considering the question of sentence found absence of any immediate reason for committing the murder of two persons. According to the learned Judge, it was committed to show a sheer criminal mentality. In its opinion it was an organised crime and the death of the two deceased had rendered two ladies as widows. Accordingly the learned Judge came to the conclusion that the case falls in the category of rarest of the rare case. 40. We had occasion to consider this question in the case of The State of Bihar Vs. Sanjeet Rai & Anr. [2006(4) PLJR 479] and on consideration of a large number of authorities of the Supreme Court and this court, we came to the following conclusion: "58. Having considered the rival submission, I do not have the slightest hesitation in accepting the broad proposition that the death sentence is called for only in rarest of the rare cases and so long it is provided in the Statute, it has to be assumed that death sentence is permissible to be imposed. 59. True it is that the crime has been committed in a heinous and brutal manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incarceration. There is no reason to believe that they cannot be reformed and they are likely to continue with the criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare cases, calling for extreme penalty of death." 41. A Division Bench of this Court had occasion to consider this question also in the case of The State of Bihar Vs. Prajeet Kr. Singh [ 2007(2) PLJR 656 ] and in the said case it has been held as follows: "32. The authorities on the question lead us to conclude that death sentence can be inflicted in rarest of the rare case and the number of persons killed is not decisive. Crime being brutal and heinous itself do not turn the scale towards death sentence. The authorities on the question lead us to conclude that death sentence can be inflicted in rarest of the rare case and the number of persons killed is not decisive. Crime being brutal and heinous itself do not turn the scale towards death sentence. If these factors are present the Court has to see as to whether the accused is a menace to the society and continue to be so, threatening the peaceful and harmonious coexistence of society. The Court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balancesheet is to be prepared while considering the imposition of extreme penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, the holders of judicial power will not stammer, de hors their personal opinion and inflict death penalty." 42. Bearing in mind the aforesaid principle, when we proceed to consider the facts of the present case, we are of the opinion that the same does not come within the purview of rarest of the rare cases. True it is that two persons had been killed, but there is nothing on record to show that the appellants shall be menace to the society threatening its peaceful existence. There is also nothing on record to show that they shall be continuous threat to the society, if come out of incarceration. We do not find any reason to believe that they cannot be reformed and shall continue with criminal activities. Appellant No. 2 Ram Das Yadav and appellant No. 3 Ramanand Yadav are aged about 75 and 65 years respectively. Having given our most anxious consideration, we do not find the case in hand to be falling within the category of rarest of the rare case. Once it is found so the death sentence inflicted on the appellants cannot be allowed to stand. 43. In the result, we decline to confirm the death sentence and reject the reference. Appeal preferred by the appellants is partly allowed, their conviction under Sec. 302/34 of the Indian Penal Code is maintained but the death sentence is commuted to that of imprisonment for life.