SHIVA KIRTI SINGH & SHAILESH KUMAR SINHA, JJ.:- The death reference under consideration and the 8 analogous Criminal Appeals arise out of same judgment dated 5th June, 2003 passed by learned 1st Additional Sessions Judge, Gaya in Sessions Trial No. 25/02/206 of 1989 arising out of Kako P.S. Case No. 74 of 1988 whereby 14 accused persons were tried and 8 accused namely; (1) Lal Singh @ Yodha Sharma, (2) Ram Babu Mahto, (3) Jang Bahadur Yadav, (4) Bipin Sharma @ Bipin Bihari Sharma, (5) Ramashish Yadav, (6) Deena Yadav @ Deenanath Prasad Yadav, (7) Yadu Yadav, and (8) Raj Ballabh Yadav were awarded death sentence and the rest six accused namely; (1) Ram Prit Yadav, (2) Mohan Yadav, (3) Sidheshwar Yadav, (4) Krit Yadav @ Ram Krit Yadav (5) Rajendra '?adav, (6) Prabhu Yadav were awarded life imprisonment. Out of them accused Raj Ballabh Yadav is reported to have fled away after recording of his statement under section 313 of the Code of Criminal Procedure. Closed Prabhu Yadav has preferred a separate criminal appeal which has abated on account of his death during the pendency of his appeal. The appeals of remaining 12 convicted persons are under consideration alongwith the death reference in respect of 8 convicts including Raj Ballabh Yadav who has absconded. 2. All the eight convicts have been awarded death penalty for the offences under section 302 read with Section 34 as well as Section 149 of the Indian Penal Code (for short I.P.C.) whereas for the same offence the remaining six accused have been awarded life imprisonment. Further all the convicts have been convicted and sentenced for the offence under section 307/149 of the I.P.C. to R.I for 5 years, under section 148 of the I.P.C. for 3 years, under section 458 of the I.P.C. for 5 years and under section 27 of the Arms Act for 5 years. All the sentences of all the accused/convicts have been ordered to run concurrently. 3. From the judgment under appeal it appears that besides holding all the accused persons guilty for the under sections 148, 307/149, 302/149, 458 of the I.P.C. and Section 27 of the Arms Act, separate charges against different accused persons have also been found proved. All the sentences of all the accused/convicts have been ordered to run concurrently. 3. From the judgment under appeal it appears that besides holding all the accused persons guilty for the under sections 148, 307/149, 302/149, 458 of the I.P.C. and Section 27 of the Arms Act, separate charges against different accused persons have also been found proved. Accused Sidheshwar Yadav, Jang Bahadur Yadav, Ramashish Yadav, Deena Yadav, Lal Singh @ Yodha and Yadu Yadav have been found guilty under sections 458, 302/34, 148, 307, 302/149 of the I.P.C. and Section 27 of the Arms Act. Further accused Lal Singh has been found guilty under sections 458 and 302/34 of the I.P.C. for murder of Deocharan Mochi. Accused Ram Krit @ Krit Yadav has been found guilty for similar offence for the murder of Saheb Mochi, Tunna @ Girjesh Mochi, Chhote Mochi and Ganga Mochi. Accused Ram Krit @ Krit Yadav, Yadu Yadav, Ram Babu Mahto and Deena Yadav have been found guilty for the similar offence for the murder of Sugamber Mochi. Accused Bali Ram Yadav, Mohan Yadav, Ramashish Yadav, Deena Yadav, Rajendra Yadav, Ram Prit Yadav, Sidheshwar Yadav and Jang Bahadur Yadav have been found guilty for the similar offence for murder of Bachchu Mochi and Ravindra Das. They have been found guilty also for the offence under section 302/34 of the I.P.C. for murder of Ravindra Das. They have been found guilty also under sections 458 and 307/34 of the I.P.C. Accused Bipin Bihari Sharma and Lal Singh @ Yodha have been found guilty under section 302/ 34 of the I.P.C. for murder of Laldeo Paswan and Section 302/109 of the I.P.C. for murder of Umesh Paswan and Pinki Kumari. They have also been found guilty under section 307/34 of the I.P.C. 4. According to the prosecution case the alleged occurrence took place in the night between 16-17th June, 1988 when large number of persons, assessed by some as 15-20 and by some others as 20 to 25, attacked the houses of victims situated in village Nonahi Tola Bhagalpur and in the adjacent village of Nagma, under Kako police station, District Jehanabad and caused death of altogether 19 persons and injuries to some others. The F.I.R. was lodged on 17.6.1988 at 5.30 hours based upon fardbeyan of Malti Devi (P.W.18) recorded on the same date at 4.00 hours in her village Nonhi Tola Bhagalpur by Sub-Inspector of Police, T.N. Ojha (P.W. 33). The informant Malti Devi is widow of deceased Laldas Paswan and mother of other two deceased, Umesh aged about 7 years and a girl child, Pinky Kumari. According to her, in the last night she was sleeping in her house with her husband, deceased Laldas, daughter Kaili Devi (P.w.16), Daulti Kumari (P.W.17), her two deceased children Umesh and Pinki, her another son Ratanama and mother Bhuneshwari Devi. In the mid-night there was sound of firing on the road from outside. The door was forcibly got opened 5-6 persons carrying big gun and flashing torch light entered into the house and enquired about her husband. She replied that her husband was not present. Upon this her son Umesh was taken by one of the accused in the courtyard and was shot dead. When the accused persons went out her husband came out of hiding but the accused persons returned to the courtyard and they hurled abuses and fired at her husband. Firing was made upon the informant while she was holding deceased Pinki in her lap. As a result Pinki died and informant sustained injuries in her chest and right thigh. The accused persons went out of house. In the light of torch of accused persons, she claimed to recognize one Nawal Sharma (absconder) by face and appellants Bipin and Yodha Singh by voice. They were, armed with gun and were instigating 3 others who were also with gun. The shorts fired by accused persons also caused injuries to her daughters Kaili and Daulti Kumari. She claimed that she could identify the remaining three accused on seeing them. The accused persons fired many shots leading to up-roar in the village. The accused left the village after about 20 to 25 minutes. Thereafter she heard the sound of gun from the direction of village Nagwan. She alleged that accused persons had also shot dead (1) Baldeo Paswan, (2) Chandradeo Paswan, (3) Karu Mochi, (4) Shibu Mochi, (5) Raghu Mochi, (6) Sugambar Mochi, (7) Faguni Mochi, (8) Nagendra Mochi, (9) Saheb Mochi, (10) Girjesh Mochi, (11) Chhote Mochi, and (12) Ganga Mochi, all her co-villagers. She alleged that accused persons had also shot dead (1) Baldeo Paswan, (2) Chandradeo Paswan, (3) Karu Mochi, (4) Shibu Mochi, (5) Raghu Mochi, (6) Sugambar Mochi, (7) Faguni Mochi, (8) Nagendra Mochi, (9) Saheb Mochi, (10) Girjesh Mochi, (11) Chhote Mochi, and (12) Ganga Mochi, all her co-villagers. From a co-villager, Shyam Bali (P.W. 2) the informant came to know that amongst the miscreants he had identified appellant Ram Babu Mahto of Nonhi Mathia, Yadu Yadav and Ram Prit Yadav of village Karwanwa Bigha. She also came to know that the accused persons had killed a person of village Nagwa and injured some others in that village and the people of Nagwa had also identified the accused persons. According to the informant the occurrence had taken place because her husband had refused to plough the land of co-villager Raj Nandan Singh and for that one Raj Nandan Singh had issued threats also. 5. According to further case of the prosecution, although in the F.I.R. only 16 persons were reported to be dead but later on the number of the deceased swelled on account of death of injured persons and altogether 19 persons died in the cocurrence. The names of four other deceased which is not mentioned in the F.I.R. are (1) Buchu Mochi, (2) Ravindra Mochi, and (3) Deo Charan Mochi, all of village Nagwan and (4) Karu Mochi son of Dhan Raj Mochi of village Nonhi. After preparing inquest reports the dead bodies were sent for postmortem examination. The investigation was taken over from Triloki Nath Ojha (P.W. 33) Sub-Inspector of Police by Sub-Inspector of Police, Shambhu Nath Singh (P.W. 37) on 17.6.1988 at 11 A.M. on the orders of the Superintendent of Police, Jehanabad. After inspecting the place of occurrence, preparing seizure-lists, collecting postmortem reports and recording the statements of witnesses, charge-sheet was submitted in this case against the 14 accused persons who were put on trial and also against accused Nawal Sharma and seven others showing them absconders. The cases of absconding accused persons were separated and cognizance was taken against the rest of the accused persons on 11.7.1988. On 22.12.1988 the case was committed to the court of sessions. Charges could be framed against the accused persons on 14.6.1991. The cases of absconding accused persons were separated and cognizance was taken against the rest of the accused persons on 11.7.1988. On 22.12.1988 the case was committed to the court of sessions. Charges could be framed against the accused persons on 14.6.1991. The accused persons pleaded not guilty to the charges and accordingly they were put on trial and have been convicted and sentenced by the judgment and order under appeal. 6. The case of the defence is simple denial of their involvement in the occurrence and that they have been falsely implicated at the instance of their enemies. The trial court has also noticed that in this case the defence has not denied the manner of occurrence and the place of occurrence. From the arguments advanced before this court also it is clear that the death of the deceased in the alleged occurrence as well as the manner and place of occurrence are not under dispute. The issue is whether the prosecution has successfully proved the identification of the appellants as members of the unlawful assembly which committed the occurrence. 7. The prosecution in order to prove its case has examined altogether 41 witnesses. Out of them there are six doctors:- Dr. Shailesh Prasad Singh (P.W. 4), Dr. Shree Nath Prasad (P.W. 14), Dr. Sanjay Jaiswal (P.W. 15), Dr. Kameshwar Sharma (P.W. 29), Dr. Satyendra Prasad Gupta (P.W. 31) and Dr. Ravindra Prasad Singh (P.W. 40). These doctors have either conducted post-mortem examination or issued injury reports in respect of injuries to injureds such as P.Ws. 16, 17, 18, 19, 21, 22, 23 and 28. They have also proved 19 post-mortem reports as Exhibits 3 and 3 series. The injury reports are Exhibits 2 and 2 series. 8. Besides those doctors there are seven police officers who have been examined as P.Ws. 32 to 37 and 39. P.W. 32, Ram Chandra Prasad is formal in nature and has proved inquest reports as Exts. 4 to 4/18. P.W. 33 Sub-Inspector of Police, Triloki Nath Ojha recorded fardbeyan of informant Malti Devi which has been proved as Ext. 5. The formal F.I.R. has been proved as Ext. 6 and seizure lists have been proved as Exhibits 7 to 7/17. P.W. 32, Ram Chandra Prasad is formal in nature and has proved inquest reports as Exts. 4 to 4/18. P.W. 33 Sub-Inspector of Police, Triloki Nath Ojha recorded fardbeyan of informant Malti Devi which has been proved as Ext. 5. The formal F.I.R. has been proved as Ext. 6 and seizure lists have been proved as Exhibits 7 to 7/17. P.W. 34, Sudhir Kumar Ray is a Junior Sub-Inspector of Police who is not associated with investigation of the case and has simply deposed that on 17.6.1988 while on night patrolling duty he heard sound of gun firing and went to the P.O. village to enquire. P.W. 35, constable Ram Chandra Rai had taken some of the injureds to hospital on 17.6.1988. P.W. 36, Ramta Prasad Singh is a Sub-Inspector of police. He is a formal witness who has proved his signature on inquest reports. P.W. 37, Shambhu Nath Singh was, at the relevant time, Inspector in Jehanabad Circle and he took up investigation of this case from Shri Triloki Nath Ojha as per order of the Superintendent of Police, Jehanabad. He is the investigating officer who conducted material part of investigation such as inspection of the place of occurrence, seizure of articles and recording of statements of witnesses. On completing investigation he submitted charge-sheet. P.W. 39, Bimlendu Kumar Verma is a Sub-Inspector of Police who had prepared dead-body challans and com mans which have been proved as Exhibits 10, 10/1 and Exhibits 11 and 11/1. Besides seven police officials one. Judicial Magistrate, Kumar Deodutt has been examined as P.W. 38 to bring on, record the statements recorded by him under section 164 Cr. P.C. of Shyambali (P.W. 2), Malti Devi (PW.18) and Raj Nandan Mahto (P.W. 23) as Exhibits 9 series. 9. P.W. 1 Deo Nandan Mochi and P.W. 41 Md. Muslim are formal witnesses. P.W. 1 has proved signature of some witnesses on the seizure-list and P.W. 41 has proved a letter sent by the Superintendent of Police to Forensic Science Laboratory as Ext. 12 and the forwarding letter as Ext.13. P.W. 22, Hari Kishun Mochi is one of the injureds but has been simply tendered for cross-examination. 10. Out of remaining material witnesses 9 have been declared hostile. 12 and the forwarding letter as Ext.13. P.W. 22, Hari Kishun Mochi is one of the injureds but has been simply tendered for cross-examination. 10. Out of remaining material witnesses 9 have been declared hostile. They are :(1) P.W. 2, Shyambali Mochi, who had allegedly disclosed names of some of the miscreants to the informant, (2) P.W. 3, Fulwa Devi, (3) PW.5, Jagdish Paswan, (4) P.W. 6, Birju Mochi son of deceased Sugamber Mochi, (5) P.W. 7, Surendra Paswan grand-son of deceased Baldeo Paswan, (6) P.W. 8, Bhimal Paswan, son of deceased Baldeo Paswan, (7) PW. 9, Minta Devi wife of P.W. 7, Surendra Paswan, (8) P.W.10, Chanda Devi wife of deceased Chandradeo Paswan, and (9) P.W.11, Karanti Kumari daughter of deceased Chandradeo Paswan. 11. The remaining material witnesses on the point of occurrence and identification are:_ P.W.12, Jathi Devi, P.W.13, Bal Keshwari Devi, P.W.16, Kaili Devi, P.W.17, Daulti Devi, P.W.18, Malti Devi, P.W.19, Shri Krishna Mochi, P.W.20, Savitri Devi, P.W.21 Girja Paswan, P.W.23, Raj Nandan Mahto, P.W.24, Biteshwar Mochi, P.W.25, Chandra Deo Mochi, P.W.26, Munarik Mochi, P.W.27, Sonbatia Devi, P.W.28, Anil Kumar and P.W.30 Balmati Devi. Out of them P.Ws. 16 to 23 and P.W. 28 are witnesses who have sustained injuries in course of the alleged occurrence. 12. P.Ws. 23 to 28 are from village Nagwan and have deposed in respect of killing and occurrence which took place in that village whereas the other P.Ws. are from village Nonhi. 13. On a careful perusal of evidence of material witnesses noticed above and from the trend of cross-examination it is, found that the prosecution has successfully established the time and place of the occurrence as well as death of the deceased persons on account of injuries sustained by them in the occurrence. It has also succeeded in proving that the miscreants attacked different residential houses of the deceased, made forceful entries in such houses and caused injuries to the deceased and also to some of the injureds. Learned counsel for the appellants went through the specific charges levelled against different persons and submitted that the witnesses who have deposed in respect of specific charges against different accused persons have failed to support the specific charges on account of contradictions or on account of certain admissions in cross-examinations. Learned counsel for the appellants went through the specific charges levelled against different persons and submitted that the witnesses who have deposed in respect of specific charges against different accused persons have failed to support the specific charges on account of contradictions or on account of certain admissions in cross-examinations. It was also submitted that the manner of occurrence in respect of specific charges is not trustworthy and hence the trial court should not have convicted the appellants of charges under section 302 read with Section 34 of the I.P.C. or under section 458 or under section 307/34 of the I.P.C. For this purpose learned counsel for the appellants had classified the prosecution witnesses into different groups and categories to highlight that the nature of the evidence on such minute classification is not sufficient to sustain such specific charges. 14. On careful consideration of aforesaid submissions it is found that the occurrence was a carnage which had taken place in dark hours of night when the victim families were suddenly subjected to riot like situation. Large number of persons went into different houses and completed their task of killing the deceased persons or causing injuries by firearms and retreated without wasting much time. In such state of shock and confusion the witnesses may not be able to give consistent and minute details of the manner of occurrence but on this account the accused persons cannot get any advantage unless on scrutiny of the relevant evidence and materials it can be found that their identification as members of the unlawful assembly which committed such heinous offence is not fully established or not established beyond reasonable doubts. Only on such findings the individual accused persons can get benefit of doubt otherwise their conviction for charges under section 302/34/149 of the I.P.C. cannot be disturbed. 15. In view of aforesaid discussions the prime task in this case is to notice the evidence on the point of identification of individual appellants and to consider the criticism advanced by learned counsel appearing for the appellants in respect of evidence of identification of the accused persons available on records. Paragraphs 127 to 137 of the judgment under appeal deal with cases of individual accused/appellants so far as their identification by witnesses is concerned. Paragraphs 127 to 137 of the judgment under appeal deal with cases of individual accused/appellants so far as their identification by witnesses is concerned. It is relevant to add here that in the aforesaid paragraphs of the impugned judgment the summary of identification against appellant Lal Singh @ Yodha is not mentioned although such evidence available on record has been dealt with at relevant places in the earlier part of the judgment. Hence, it will be useful to notice here that in court appellant Lal Singh @ Yodha has been identified by P.W.12, Jathi Devi, P,W.13, Balkeshar Devi, PW.18, Malti Devi and P.W.30 3almati Devi. 16. On the basis of evidence adduced before the court the trial court has found that five of the appellants namely Sidheshwar Yadav, Ram Babu Mahto, Yadu Yadav, Krit Yadav @ Ram Krit Yadav, Jang Bahadur Yadav and accused Prabhu Yadav (now dead) have been identified by only one witness. Out of remaining seven appellants, appellant Rajendra Yadav is said to have been identified by two witnesses in court namely P.W. 20, Savitri Devi and P.W. 23, Raj Nandan Mahto. Appellant Mohan Yadav has been found by the trial court to have been identified by three witnesses namely P.W. 23, Raj Nandan Mahto, P.W. 26, Monarik Mochi and P.W. 28 Anil Kumar. Appellant Krit Yadav @ Ram Krit Yadav, as per trial court has been identified by four witnesses namely P.W. 12, Jathi Devi, P.W. 13 Balkeshari Devi, P.W. 20, Savitri Devi and P.W. 30, Balmati Devi. Appellant Ramashish Yadav is also said to have been identified by four witnesses namely P.W. 20, Savitri Devi, P.W. 23, Raj Nandan Mahto, P.W. 24 Biteshwar Mochi and P.W. 26 Monarik Mochi. Appellant Lal Singh @ Yodha, as noticed in the preceding paragraph, has been identified by four witnesses i.e. P.Ws. 12, 13, 18 and 30. Appellant Bipin Sharma is said to have been identified by 5 witnesses namely P.W. 12, Jathi Devi, P.W. 13 Balkeshari Devi, P.W. 20 Savitri Devi, P.W. 30, Balmati Devi and the informant P.W. 18, Malti Devi. The remaining appellant Deena Yadav is said to have been identified by six witnesses namely P.W. 20, Savitri Devi, P.W. 23 Raj Nandan Mahto, P.W. 24 Biteshwar Mochi, P.W. 25 Chandra Deo Mochi, P.W. 26, Monarik Mochi and P.W. 30 Balmati Devi. 17. The remaining appellant Deena Yadav is said to have been identified by six witnesses namely P.W. 20, Savitri Devi, P.W. 23 Raj Nandan Mahto, P.W. 24 Biteshwar Mochi, P.W. 25 Chandra Deo Mochi, P.W. 26, Monarik Mochi and P.W. 30 Balmati Devi. 17. Learned counsel appearing for the aforesaid appellants have drawn our attention to the deposition of aforesaid identifying witnesses and to the specific paragraphs of their depositions in which some of them were cross-examined in respect of their earlier statements regarding identification of the accused persons as made before the I.O. under section 161 of the Code of Criminal Procedure. Our attention was also drawn to the relevant part of deposition of the Investigating Officer (P.W. 37), Shambhu Nath Singh to show that many of the identifying witnesses have made exaggerations and improvement in respect of their claim of having identified the accused persons. On going through the deposition of concerned witnesses in the light of aforesaid arguments and submissions on behalf of the appellants, it is found that appellants Ram Babu Mahto and Yadu Yadav are said to have been identified only by P.W. 30. That witness has claimed to identify these two witnesses only in court and according to the evidence available on record he had not made any claim of identifying these appellants before the Investigating Officer. Hence it is found that in respect of these two appellants the claim of identification by P.W. 30 alone is not reliable and worthy of acceptance. So far as the remaining appellants namely Sidheshwar Yadav, Ram Prit Yadav and Jang Bahadur Yadav, who are also said to have been identified only by P.W. 23 are concerned, it is to be seen whether their conviction on the basis of sole testimony of P.W. 23 regarding identification is sustainable or not. On behalf of appellants strong criticism was leveled against P.W. 23, Raj Nandan Mahto that although he is an injured witness, he could not have seen the miscreants and identified them in the torch light flashed by the miscreants themselves. From the materials on record it is apparent that P.W. 23 is not only injured but he is father of deceased Ravindra Mahto who was shot in the occurrence and died later on. There is no enmity or any other motive which could have influenced this witness to name 11 accused persons whom he identified in the occurrence. From the materials on record it is apparent that P.W. 23 is not only injured but he is father of deceased Ravindra Mahto who was shot in the occurrence and died later on. There is no enmity or any other motive which could have influenced this witness to name 11 accused persons whom he identified in the occurrence. Hence, on facts it is not possible to disbelieve the evidence of P.W. 23 in respect of his claim of identification. However, a larger issue arises whether it is safe, in the facts and circumstances of the case to sustain conviction of any of the accused persons on the basis of single identification. 18. On the aforesaid issue, on behalf of appellants it was submitted that the occurrence took place in dark hours of night. The only means of identification was torch light being flashed by the miscreants and the occurrence took place over a large area covering different houses wherein a number of witnesses had the opportunity of looking at the miscreants and identifying them. On such facts, it has been submitted that a single identification by one witness needs corroboration in order to rule out chance of mistaken identification or the chance of false implication for reasons known only to the witness. It has further been submitted that in many cases decided; by the Apex Court, particularly where more than one witness could be available, it has been held that only on the basis of identification of two or more witnesses conviction may be sustained. In this regard reliance has been placed upon a judgment of the Hon'ble Supreme Court in the case of Masalti Vs. State of U.P. reported in A.I.R. 1965 S.C. 202. Paragraphs 15 and 16 of the said judgment support the aforesaid contention of the appellants. In that case five persons were killed and the offence was committed by a number of persons who were members of an unlawful assembly which committed the offence of murder in pursuance of common object of the unlawful assembly. Thus, in similar circumstances the Apex Court held that it is not possible for witnesses to describe accurately the part played by each one of the appellants as members of such an unlawful assembly. Thus, in similar circumstances the Apex Court held that it is not possible for witnesses to describe accurately the part played by each one of the appellants as members of such an unlawful assembly. It was further held in paragraph 16 that although under the Evidence Act, trustworthy evidence of a single witness may be enough to convict an accused person, but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, "it is useful to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give consistel1t account of the incident". The Apex Court made it clear that no doubt the normal rule is to look at the quality of the evidence and not the number of witnesses but went on to hold that sometimes it is useful to adopt a mechanical test. Similar view has been adopted in several other cases including in the case of Vinay Kumar Singh Vs. State of Bihar reported in 1997(1) PLJR 159 (S.C). In paragraph 31 of the said judgment the Apex Court has quoted with approval the relevant part of paragraph 16 of the judgment in the case of Masalti Vs. State of U.P. (supra). No useful purpose will be .served by adding to the list of such cases in which the same principle has been followed. Hence on application of the legal principle settled by the Supreme Court as noticed above, it is not found possible to sustain the conviction of the five appellants found by the trial court to have been identified by single witnesses. 19. So far as appellant Rajendra Yadav is concerned, although he is said to have been identified by two witnesses, P.W. 20, Savitri Devi and P.W. 23 Raj Nandan Mahto but on going through the evidence of P.W. 20 it is found that in court she named appellant Bipin and two others (Nawal Singh and Chhote) but she went near the dock and claimed to identify by face several accused persons namely Ramashish Yadav, Raj Ballabh Yadav, Deena Yadav, Rajendra Yadav, Ram Krit Yadav and Prabhu Yadav. This witness is from village Nonhi and most of the aforesaid accused persons also belong to the same village. This witness is from village Nonhi and most of the aforesaid accused persons also belong to the same village. Surprisingly, she has claimed to identify them only by face and not by name. Further her attention was drawn to her earlier statement before the I.O. in respect of identification and the Investigating Officer (P.W. 37) has replied in paragraphs 39 and 64 of his cross-examination that this witness had not named before him either appellant Bipin or any other person. In view of aforesaid discussions the testimony of P.W. 20 Savitri Devi in respect of her claim of identification of the accused persons is not found reliable. Hence against appellant Rajendra Yadav also there remains only a single reliable identifying witness i.e. P.W. 23. But in the light of discussions made earlier it is not found to safe to sustain his conviction only on the basis of single identification of P.W.23. 20. Before taking up the individual cases of other appellants said to have been identified by 3 or more witnesses it is useful and proper to take up the case of appellant Bipin Sharma. In F.I.R. P.W. 18 Malti Devi mentioned his name as one of the miscreants and admitted that she had identified him by his voice but in her deposition in court she has retracted from such claim and in cross-examination she has admitted clearly that she could not identify Bipin even by voice. P.W. 12 Jathi Devi has named him as one of the members of the unlawful assembly but from her cross-examination and the evidence of 1.0. (P.W. 37) it transpires that out of five persons named by her in court she had not named before the I.O. either Bipin Sharma or Lal Singh @ Yodha Sharma. Hence, her claim of identifying appellant Bipin is not found consistent and reliable. So far as P .W. 13 is concerned it is found that she has not named Bipin Sharma in her evidence and instead she has named one Deepan. It also appears from the record that on the day of her examination-in-chief Bipin was not present in the dock and therefore was not identified by face or by the name of Deepan. Hence her evidence cannot be treated to be against Bipin Sharma. It also appears from the record that on the day of her examination-in-chief Bipin was not present in the dock and therefore was not identified by face or by the name of Deepan. Hence her evidence cannot be treated to be against Bipin Sharma. P.W. 20, Savitri Devi as discussed earlier did not name any-one before the I.O. and is not reliable for the purpose of identification of any of the accused. The only remaining witness against Bipin, P.W. 30 Balmati Devi although named and identified him in the dock but from her cross-examination and evidence of the I.O. P.W. 37 it transpires that she had not named Bipin Sharma before the Investigating Officer. In view of aforesaid discussions it is found that although the trial court has indicated that five witnesses have identified appellant Bipin but none of them is found to be consistent and reliable for the purposes of identification. 21. As noticed earlier, in respect of appellant Lal Singh @ Yodha Sharma the trial court has not summarised -the evidence of identifying witnesses but at other places it has come out that ha has been identified by four witnesses namely P.W. 12, P.W. 13, P.W. 18 and P.W. 30. So far as claim of P.Ws. 12, 13 and 18 are concerned, the case of this appellant stands on same footing as that of appellant Bipin Sharma because P.W. 12 and P.W. 13 had not claimed to identify him before the I.O and P.W. 18 in her statement in court did not support her earlier claim in the Fardbeyan that she could identify this appellant and Bipin by voice. So far as P.W. 30 is concerned she had named this appellant before the I.O. and she also named and identified him in court. Hence on scrutiny of evidence of identifying witnesses available against appellant Lal Singh @ Yodha Sharma it is found that only the evidence of P.W. 30 Balmati Devi can stand scrutiny and hence he also must be treated to have been identified reliably and consistently only by a single witness P.W. 30. On that basis his conviction also cannot be sustained. 22. On that basis his conviction also cannot be sustained. 22. So far as appellants Mohan Yadav, Krit Yadav, Ramashish Yadav and Deena Yadav are concerned, it is found on close scrutiny that against appellant Mohan Yadav the evidence of identifying witnesses namely P.W. 23, Raj Nandan Mahto, P.W. 26, Monarik Mochi and P.W. 28 Anil Kumar are consistent and reliable. Appellant Krit Yadav is claimed to have been identified by P.W.12, Jathi Devi, P.W. 13 Balkeshri Devi, P.W. 20 Savitri Devi and P.W. 30 Balmati Devi. In view of their claim of identification not made before the I.O. (P.W. 37), the evidence of P.W. 20 and P.W. 30 in respect of Krit Yadav is not found reliable but still the evidence of P.Ws. 12 and 13 remains against him as these witnesses are found consistent and reliable in respect of their claim of having identified Krit Yadav as one of the members of the unlawful assembly. Appellant Ramashish Yadav is claimed to have been identified by P.W. 20, Savitri Devi, P.W. 23 Raj Nandan Mahto, P.W. 24 Biteshwar Mochi and P.W. 26 Monarik Mochi. Out of these four witnesses only the claim of P.W. 20 is found to be unreliable so far as identification of Ramashish Yadav is concerned. However, the identification, by the remaining three witnesses in respect of this appellant is found to be reliable. Appellant Deena Yadav is claimed to have been identified by P.Ws. 20, 23, 24, 25, 26 and 30. Out of these witnesses the claim of identification in respect of this appellant as made by P.Ws. 20, 25 and 30 are not found reliable because they had not made such claim before the I.O. Still the claim of remaining witnesses i.e. P.Ws. 23, 24 and 26 are found to be consistent and reliable in respect of this appellant. Hence the conviction of appellant Mohan Yadav, Krit Yadav @ Ram Krit Yadav, Ramashish Yadav and Deena Yadav is found fit to be confirmed as they have been identified by two or more reliable and consistent witnesses. Their conviction for the charges under sections 148/307/149/302/149 of the I.P.C. and Section 27 of the Arms Act is confirmed. But in view of discussion made earlier in respect of other appellants, the conviction of remaining appellants namely Ram Babu Mahto (Cr. Appeal No. 261 of 2003), Rajendra Yadav, Sidheshwar Yadav, Ram Prit Yadav (Cr. Their conviction for the charges under sections 148/307/149/302/149 of the I.P.C. and Section 27 of the Arms Act is confirmed. But in view of discussion made earlier in respect of other appellants, the conviction of remaining appellants namely Ram Babu Mahto (Cr. Appeal No. 261 of 2003), Rajendra Yadav, Sidheshwar Yadav, Ram Prit Yadav (Cr. Appeal No. 276/2003), Bipin Sharma @ Bipin Bihari Sharma (Criminal Appeal No. 279 of 2003), Yadu Yadav (Criminal Appeal No. 281 of 2003), Lal Singh @ Jodha Sharma (Criminal Appeal No. 289 of 2003) and Jang Bahadur Yadav (Criminal Appeal No. 291/2003) is set aside. The appeals in respect of these appellants shall stand allowed. 23. So far as the reference in respect of death sentence awarded to 8 persons including appellants Ramashish Yadav and Deena Yadav is concerned, we find that the trial court was carried away by the submissions advanced on behalf of the accused persons and adopted a wrong criteria of awarding death sentence in this case only to such convicts who are below the age of 55 years and thereby it has spared such sentence to other convicts including appellant Mohan Yadav and appellant Krit Yadav. Such principle adopted by the trial court was not proper either on facts or in law. On account of extreme old age cases of individual convicts could have been dealt with separately but it does not appeal to reason that an arbitrary cut-off mark of 55 years of age can be adopted to show leniency to those who had participated in such a heinous crime. However, the State has not preferred any appeal against the sentence of life imprisonment against others including appellants Mohan Yadav and Ram Krit Yadav and therefore, there is no question of converting the sentence of life imprisonment awarded to them into capital punishment. In view of such constraint it is not deemed just and proper to maintain the death sentence awarded to appellants Ramashish Yadav and Deena Yadav. Only in that view of the matter the death reference is answered in negative in respect of all the convicted accsused. The death sentence awarded to appellants Ramashish Yadav and Deena Yadav and even to non-appellants is commuted to life imprisonment. With such modification in the sentence the appeals of appellants Mohan Yadav, Krit Yadav @ Ram Krit Yadav, Ramashish Yadav and Deena Yadav are dismissed. The death sentence awarded to appellants Ramashish Yadav and Deena Yadav and even to non-appellants is commuted to life imprisonment. With such modification in the sentence the appeals of appellants Mohan Yadav, Krit Yadav @ Ram Krit Yadav, Ramashish Yadav and Deena Yadav are dismissed. The appeals of other appellants shall stand allowed. It has been submitted that all the appellants whose appeals have been allowed and acquitted are in jail custody. In view of such submissions they are directed to the released from custody forthwith if not required in any other case.