JUDGMENT 1. - The Additional Sessions Judge, Karauli has made a reference, being D.B. Criminal Death Reference No.2/2014, for confirming the death sentence awarded to the accused, Raju, by judgment dated 11.12.2014. By the said judgment the learned Judge has convicted the appellant, Raju, for offences under Sections 302, 307 and 323 IPC. By an order of even date, the learned Judge has sentenced him as under:- U/s. 302 IPC: Death sentence, imposed with a fine of Rs. 1 Lac, and directed to further undergo simple imprisonment of two months, in default thereof. U/s. 307 IPC: Ten years of rigorous imprisonment, imposed with a fine of Rs. 50,000/-, and directed to further undergo simple imprisonment of one month, in default thereof. U/s. 323 IPC: One year of rigorous imprisonment. 2. By the same judgment dated 11.12.2014, the learned Judge has also convicted another co-accused, namely Naval Kishore, for offences under Sections 302/34, 307/34 and 323/34 IPC, and sentenced him as under:- U/s. 302/34 IPC: Life imprisonment, imposed with a fine of Rs. 1 Lac, and directed to further undergo simple imprisonment of two months, in default thereof. U/s. 307/34 IPC: Ten years of rigorous imprisonment, imposed with a fine of Rs. 50,000/-, and directed to further undergo simple imprisonment of one month, in default thereof. U/s. 323/34 IPC: One year of rigorous imprisonment. 3. Aggrieved by the aforesaid judgment dated 11.12.2014, Raju has filed a regular appeal, namely D.B. Criminal Appeal No.23/2015, and a Jail appeal, namely D.B. Criminal (Jail) Appeal No.63/2015, before this court. Similarly, aggrieved by the same judgment, Naval Kishore has preferred an appeal, namely D.B. Criminal Appeal No.22/2015, before this court. Since the Criminal Death Reference, and the three criminal appeals filed by the accused persons challenge the same impugned judgment, therefore, they are being decided by this common judgment. 4. Briefly, the case of the prosecution is that on 5.10.2011, Jitesh (P.W. 4) submitted a written report (Ex.P. 3) before the Police Station Kotwali, Karauli which when translated into English reads as under:- To, The SHO, Police Station Karauli Kotwali, District Karauli. Sir, It is humbly submitted that on 4.10.2011 around 7:20 PM, I, my elder brother, Rahul, aged 22 years, both my sisters, Shalu, 14 years, and Madhuri, 16 years, and my grand-father, Manohar Singh, boarded a train from Agra Fort for the purpose of paying our homage to Kaila Devi. Sir, It is humbly submitted that on 4.10.2011 around 7:20 PM, I, my elder brother, Rahul, aged 22 years, both my sisters, Shalu, 14 years, and Madhuri, 16 years, and my grand-father, Manohar Singh, boarded a train from Agra Fort for the purpose of paying our homage to Kaila Devi. Around 1:30 AM, at night, we got down at the Hindon Station. There a person was soliciting passengers for taking them by bus to the temple of Kaila Devi. I asked him about the ticket fare. He told me that for the devotees of Kaila Devi, the service is free. He not only asked us, but also asked a lot of other persons from Agra to sit in the bus. We sat in a bus bearing registration No. RJ14-PB-9020. There were about 70-80 passengers in the bus. The bus driver started the bus. On Dholpur Road, before reaching Karauli, the bus driver stopped the bus in a jungle and asked all of us to pay the passenger fare. He took Rs. 40/- from each one of us. We also asked him as to why he is robbing us like this. There was no conductor in the bus. He brought the bus to Karauli and at Hathi Ghata Petrol Pump he told all of us to get down from the bus. One of the passengers slapped the driver as the bus driver refused to take us any further. But subsequently, we got down from the bus and started to walk. We were divided in small groups and were walking on the side of the road. With an intention to kill us, the bus driver hit us with the bus. Whomever he could find, he hit the persons with the bus. This incident had occurred at 4:00 O'clock in the morning. In this incident, my brother, Rahul, Sindhi S/o. Sheetal, r/o. Barah Khamba, Agra, and four other persons died on the spot. Moreover, Bantu S/o. Vijay, Malna W/o. Vijay, r/o. Asat Gali, Tajganj, Agra, Narendra S/o. Man Singh Eta Wale, r/o. Near Bus Stand, Bijli Ghar, Agra, Lakhan S/o. Uttam Singh, r/o. Aji Nagar, Barah Khamba, Agra, Kamla W/o. Chandra Shekhar, Brajesh W/o. Gajendra, r/o. Pooja Vihar Colony, Dhanauli, Agra, and Sonia D/o. Mukesh, r/o. Basai Khurd, Agra, a total of six dead and eleven injured were there. At that time, Shekhar S/o. Maharaj Singh Jatav, r/o. Karamveer Nagar Colony, Dhanwali Khali, P.S. Malpura, Agra, and Chandu S/o. Hari Babu Jatav, r/o. Barah Khamba, Transformer Gali, Shahganj, Agra, and Vimla W/o. Mukesh Jatav, r/o. Taj Ganj, Basai Naiya Bagh, Taj Ganj, Agra, were also with me. The bus driver, with an intention to kill, has mowed down the passengers who were walking. I am submitting this report so that legal proceedings can be initiated. Signed Jitesh S/o. Jagdish, by caste Jatav, r/o. Loha Mandi, Nobasta, Thana Loha Mandi, Agra (U.P.) Dated 5/10/11. 5. On the basis of the said report (Ex. P. 3), the police chalked out a formal FIR (Ex.P.40), FIR No.460/11, at P.S. Karauli, for offence under Section 304 IPC and started the investigation. After completing the investigation, the police submitted a charge-sheet against Raju for offences under Sections 323, 307, 302/34 IPC and under Section 3(2)(5), SC/ST (Prevention of Atrocities) Act, 1989. It submitted the charge-sheet against Naval Kishore for offences under Sections 323, 307, 302/34 IPC. It submitted the charge-sheet keeping the investigation pending against one more accused person, namely Jal Singh, under Section 173 (8) Cr.P.C. The chargesheets were submitted before the Chief Judicial Magistrate, Karauli. Since the case could be tried only by the Special Judge, SC/ST (Prevention of Atrocities) Cases, the case was committed from the Chief Judicial Magistrate, Karauli, to that court. However, Raju was discharged for offence under Section 3(2)(5) SC/ST Act and was charged for offences under Sections 323, 302 and 307 IPC. Further, Naval Kishore was charged for offences under Sections 323/34, 302/34 and 307/34 IPC. Since the charge for offence under Section 3(2)(5) of the SC/ST Act was dropped, and Raju was discharged for the same, the case was transferred to the court of Additional Sessions Judge, Karauli. 6. In order to support its case, the prosecution examined forty-five witnesses, and submitted eighty-three documents. In their defense, the accused persons did not examine any witness, but did submit four documents. After going through the oral and documentary evidence, the learned Judge has convicted and sentenced the accused persons, as aforementioned. Therefore, the Criminal Death Reference, and the three appeals filed by the two accused persons before this court. 7. For the sake of clarity, this court will first deal with the Death Reference and the two appeals filed by Raju. After going through the oral and documentary evidence, the learned Judge has convicted and sentenced the accused persons, as aforementioned. Therefore, the Criminal Death Reference, and the three appeals filed by the two accused persons before this court. 7. For the sake of clarity, this court will first deal with the Death Reference and the two appeals filed by Raju. Subsequently, this court will deal separately with the appeal filed by Naval Kishore as the evidence vis-a-vis him is different from the evidence for the accused Raju.D.B. Death Reference No. 2/2014; D.B. Criminal Appeal No. 23/2015; D.B. Criminal (Jail) Appeal No. 63/2015. 8. Mr. N.S. Dhakar, the learned Public Prosecutor has vehemently contended that it is a rarest of the rare case where the capital punishment should be confirmed by this court. According to him, six innocent persons have lost their lives and eleven persons have been injured. 9. Secondly, slight provocation could not result in killing of six persons and in injuring eleven persons. Therefore, it is a case of premeditated cold blooded murder. A large number of people have been killed and injured clearly proves the cruelty of the accused-appellant, Raju. Moreover, the diabolical manner in which he has mowed down the innocent passengers shocks the conscience of a civilised society. Such diabolic acts clearly show that Raju is beyond reform and redemption. Therefore, the learned Public Prosecutor, while arguing the Criminal Death Reference, has forcefully submitted that the capital punishment should be maintained by this court. 10. On the other hand, at the very outset, Mr. Mohar Pal Meena, the learned counsel for Raju, has frankly conceded that as far as the merits of the case is concerned, he has nothing substantial to submit. However, he has vehemently contended that even if the prosecution case were accepted, even then the case does not fall within the category of "rarest of rare case". According to him, before imposing a capital punishment, the court has to balance the mitigating and the aggravating circumstances; the court has to consider the circumstances of 'the criminal' and of 'the crime'. Life imprisonment is a rule and death sentence is an exception. The court has to consider the position whether there is something uncommon about the crime which renders the sentence of imprisonment for life inadequate, and calls for a death sentence. Life imprisonment is a rule and death sentence is an exception. The court has to consider the position whether there is something uncommon about the crime which renders the sentence of imprisonment for life inadequate, and calls for a death sentence. The court has to consider the question whether the circumstances of the crime are such that there is no other alternative but to impose death sentence even after according to maximum weightage to the mitigating circumstances which speak in favour of the offender. In order to buttress this plea, the learned counsel has relied on the case of Bachan Singh v. State of Punjab [ (1980) 2 SCC 684 ] and on the case of Machhi Singh & Ors. v. State of Punjab [ (1983) 3 SCC 470 ] , and on the case of Santosh Kumar Singh v. State of Madhya Pradesh [2014(2) WLC (SC) Cri. 412] . According to him, the aggravating conditions are not such as to warrant imposition of the death penalty. 11. Secondly, it is not a case committed by a habitual offender. In fact, it is the first offence committed by Raju, a young man aged just 27 years. 12. Thirdly, the offence was not committed in order to create a fear psychosis in the public at large, nor was committed in a public place by a weapon, or device which clearly could be hazardous to the life of more than one person, nor committed for receiving money, or monetary benefits. It is not even a hired killing. It is not a case where members of a particular community are targeted. It is also not a case where there is evidence of depravity of the accused. In fact, there is evidence that there was an altercation between Raju and the passengers; a passenger had hit him. Therefore, it is not a case of cold blooded murder without provocation. In fact, it is a case of sudden flair up, of sudden quarrel, of sudden heat at the moment. 13. Lastly, at the relevant time, Raju was a young man of hardly twenty-seven years old. Thus, he was not even mature enough to understand the grave consequences of his act. In fact, it is a case of sudden flair up, of sudden quarrel, of sudden heat at the moment. 13. Lastly, at the relevant time, Raju was a young man of hardly twenty-seven years old. Thus, he was not even mature enough to understand the grave consequences of his act. Considering his young age, considering that this was the first crime committed by him, there is a great possibility that he can be reformed and rehabilitated so as to become a contributory member of the community, and a law abiding citizen. Therefore, the learned counsel has pleaded that the capital punishment should be reduced to life imprisonment. 14. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. 15. In order to understand the case of the prosecution, the testimony of Jitesh (P.W.4) is sufficient. In his examination-in-chief he states that "we sat from Hindon for Kaila Devi. This incident is only two years old. I remember the date as 3rd or 4th. But I do not remember either the month, or the year. From the railway station to Kaila Devi, we travelled in Bus No.9020. At the time of leaving Hindon, Naval was driving the bus. He was the person who has a mustache. Besides me, in the bus there were my two sisters, Madhuri and Shalu, my grandfather Manohar Lal, and my elder brother, Rahul. In the bus there were about 65-70 passengers. After leaving the place, the bus came to a lonely place. At that place, we were asked to pay Rs. 40/- per person. We paid Rs. 40/- each. After this when the bus reached near the H.P. Petrol Pump, the bus stopped at the petrol pump for taking petrol. At that place, we were asked to pay Rs. 20/- more by way of fare. We were told that unless we pay Rs. 20/-, the bus would not move onward. We got down from the bus, and started walking. Then from the back, the bus came with speed. The bus was driven by Raju. In the court the witness identified Raju as the driver of the bus. Then driver hit the devotees. Due to this collision, six passengers died on the spot. Amongst those who had died was my brother, Rahul. I do not know the other passengers. They died due to being crushed. The bus was driven by Raju. In the court the witness identified Raju as the driver of the bus. Then driver hit the devotees. Due to this collision, six passengers died on the spot. Amongst those who had died was my brother, Rahul. I do not know the other passengers. They died due to being crushed. There were about 11-12 persons who were injured. The report is Exhibit-P.3 which has my signatures at 'A to B'. I do not remember today the women who were injured. What was the motive of the driver for bringing the bus from the back, I do not know. I have seen the entire incident with my own eyes. We took the injured to the hospital. Shortly, the police officers reached the place of incident. The driver was drunk at that time. The driver had an argument with the women". 16. In his cross-examination, the witness has claimed that "even prior to this incident, I have come to Karauli for covering the distance (to the temple) by walking. I do not know Karauli to Dholpur Road, or the Hathi Ghata Road. Whatever had transpired in the incident, I had told it to the person who wrote the FIR. The FIR was written, around 10.00-11.00 AM, on the day of the incident. At the time of writing of the FIR, Narendra Singh, Lakhan, Malla were not present; I was all alone. At the time when the FIR was written, I knew that the police had seized the bus. When the accident had taken place, I had seen the bus number in the light of a lamppost. When we got down at the station at night, 60-65 passengers had already boarded the bus. In the bus, I sat with my relatives in the front seat. Before us, about two to four passengers were standing. When I sat in the bus, I did not know the bus number. We had seen the driver when we sat in the bus. Before sitting in the bus, there was no discussion, or conversation in the bus. The driver stopped the bus near Masalpur Chungi. There all passengers had given the travel fare. After stopping at the petrol pump, we had walked about half a kilometer. Some passengers were walking in front of me, and some were walking behind me. Before sitting in the bus, there was no discussion, or conversation in the bus. The driver stopped the bus near Masalpur Chungi. There all passengers had given the travel fare. After stopping at the petrol pump, we had walked about half a kilometer. Some passengers were walking in front of me, and some were walking behind me. At the time of incident, the road was empty; no other vehicle was plying on the road. The bus came about ten minutes after we started walking. There was no light either from the front of bus, or inside the bus. They were all switched off. It was around 4.00 O'clock in the morning. At that time who was the driver, I could not see. Later on we learnt the name of the driver that is why in Exhibit-P.3 I did not reveal his name. The police had recorded my statement. It is true that at the time of recording of Exhibit-D.3, I did not know the driver's name. Therefore, I did not mention it. It is true that at the time of recording of Exhibit-D.3, my mental condition was bad. That is why we did not tell the police whether from railway station to the petrol pump, it is Naval Kishore who had driven the bus. It is also not mentioned in Exhibit-D.3, nor is it mentioned that Raju Sharma had hit the passengers. It is true that prior to the incident, I did not know the accused persons. It is true that the police did not conduct a test identification parade. At the time when the bus left from Hindon, there was only a single driver. Nobody else was with the driver. In the FIR (Exhibit-P.3), from the portion marked as 'C to D', the names of the injured, I came to know after my statement had been recorded".The other injured witnesses, such as Smt. Kamla (P.W.2), Brijesh Devi (P.W.3), Lakhan (P.W.5), Narendra (P.W.10) and Shekhar (P.W.26) have given similar statement as that of Jitesh (P.W.4). Hence, they are not being reproduced in this judgment.Since the case has not been argued by the learned counsel on merits, the critical question before this court is the quantum of punishment that should be meted out to Raju. Whether it is a rarest of the rare case, therefore his death sentence should be confirmed? Hence, they are not being reproduced in this judgment.Since the case has not been argued by the learned counsel on merits, the critical question before this court is the quantum of punishment that should be meted out to Raju. Whether it is a rarest of the rare case, therefore his death sentence should be confirmed? Or whether there is sufficient mitigating circumstances and the sentence should be reduced from capital punishment to life imprisonment or not?Imposition of death penalty has taxed the judicial mind. Recently, in the case of Mofil Khan & Anr. v. State of Jharkhand [ (2015) 1 SCC 67 ] , the law with regard to imposition of death sentence has been summarised by the Hon'ble Supreme Court. The Apex Court observed as under:- "17. The awarding of death penalty has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof. In this regard the Constitution Bench decision of this Court in Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20 and Bachan Singh v. State of Punjab (1980) 2 SCC 684 , a three Judge Bench decision in Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 , are the leading cases wherein certain principles in the matter of sentencing has been evolved by this Court. The broad principles tailored by this Court in its judgments provide guidelines to ensure that the discretion vested in the Court is not unbridled. 18. This Court in the aforesaid decisions has evolved the doctrine of "rarest of the rare" case and put it to test via the medium of charting out the aggravating and mitigating circumstances in a case and then balancing the two in the facts and circumstances of the case. As a norm, the most significant aspect of sentencing policy is independent consideration of each case by the Court and extricating a sentence which is the most appropriate and proportional to the culpability of the accused. It may not be apposite for the Court to decide the quantum of sentence with reference to one of the classes under any one of the head while completely ignoring classes under other head. It may not be apposite for the Court to decide the quantum of sentence with reference to one of the classes under any one of the head while completely ignoring classes under other head. That is to say, what is required is not just the balancing of these circumstances by placing them in separate compartments, but their cumulative effect which the Court is required to keep in its mind so as to better administer the criminal justice system and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Code while sentencing." 17. In order to carrying out the balancing act, the Hon'ble Supreme Court has listed the following circumstances as aggravating circumstances:- "19. The following broad heads have been culled out by the successive judgments of this Court: 76. ...Aggravating Circumstances: 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. 2. The offence was committed while the offender was engaged in the commission of another serious offence. 3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. Hired killings. 6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. The offence was committed by a person while in lawful custody. 8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. When murder is committed for a motive which evidences total depravity and meanness. 12. When there is a cold blooded murder without provocation. 13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society." 18. Moreover, it has also delineated the mitigating circumstances as under:- "Mitigating Circumstances: 1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. 2. The age of the accused is a relevant consideration but not a determinative factor by itself. 3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. 4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. 5. The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused." 19. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused." 19. It has also prescribed the principles which should guide the discretion of the court while imposing the capital punishment as under: "Principles: 1. The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence. 2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. 3. Life imprisonment is the rule and death sentence is an exception. 4. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. 5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime." 20. While life imprisonment is a rule, the death sentence is an exception. Therefore, aggravating circumstances have to exist which would establish the depravity of the mind of the accused, which would shock the conscious of the society, which would warrant the imposition of the extreme penalty of death, and which would convince the court that the accused is beyond redemption and reform. 21. In the present case, according to the prosecution, at the time of incident, Raju was a young man aged twenty-seven years who was under the influence of liquor. Admittedly, he is neither a hardened criminal, nor a habitual one. In fact, this is the first offence committed by him. Moreover, according to the prosecution witnesses, there was an altercation between Raju and the passengers about the fare. Not only were there heated exchanges between Raju and the women passengers, but Raju had also been slapped by a passenger. Thus, the incident did not occur due to any premeditation or planning. In fact, it occurred at the spur of the moment, in the heat of the moment, and when the accused was under the influence of liquor. Hence, it seems that the accused had over-reacted to the heated exchange, and had committed the crime.23. Thus, the incident did not occur due to any premeditation or planning. In fact, it occurred at the spur of the moment, in the heat of the moment, and when the accused was under the influence of liquor. Hence, it seems that the accused had over-reacted to the heated exchange, and had committed the crime.23. It is not a case where the accused has tried to wipe off the entire family over a property dispute, or for lust for property; it is not a case where the offender was engaged for commission of a crime; it is not a case where murder has been committed for ransom, or for receiving money, or for other monetary benefits; it is not a case of hired killing; it is not a case of inhuman treatment, or a torture to the victim; it is not a case where the motive indicates depravity and meanness; it is not even a cold blooded murder without provocation. On the other hand, one cannot overlook the age of the accused. Although it may not be a determinative factor, but it is an essential factor to be considered in order to decide whether there is likelihood of reform and redemption. Moreover, it is not a case of committing a crime in pre-ordained manner. Furthermore, there is no evidence to show that the accused is likely to repeat the crime, or that he is beyond reformation or rehabilitation. Undoubtedly, it is unfortunate that six persons have lost their lives, and eleven persons have been injured. But the number of victims would not tip the scale in favour of death penalty. The overall evidence does not indicate that the crime was committed in a cruel or demoniacal manner. It does not project the accused as a menace, or a threat to a harmonious and peaceful coexistence of the society. Moreover, there is no evidence to show that the accused did not possess any basic humanity and lacks the psyche and mindset amenable to any reformation. The society should not readily concede its inability to reform an accused. The society must endeavour to reform an accused and to bring him back within its fold. A holistic appreciation of evidence does not convince this court that it is a rarest of the rare case which deserves confirmation of a death penalty. D.B. Cr. Appeal No. 22/2015, Naval Kishore v. State 24. The society must endeavour to reform an accused and to bring him back within its fold. A holistic appreciation of evidence does not convince this court that it is a rarest of the rare case which deserves confirmation of a death penalty. D.B. Cr. Appeal No. 22/2015, Naval Kishore v. State 24. As far as the appeal filed by Naval Kishore is concerned, Mr. Biri Singh Sinsinwar, the learned senior counsel assisted by Mr. Rajesh Choudhary, has pleaded firstly that there is no evidence to show that Naval Kishore shared common intention with Raju for committing the alleged crime.25. Secondly, the prosecution has submitted contradictory evidence with regard to Naval's presence at the bus. According to both Jitesh (P.W.4), and Narendra (P.W. 10) Naval Kishore was present in the bus and had driven the bus from Hindon to Karauli. However, other injured witnesses do not mention his presence in the bus. Thus, it is unclear whether Naval Kishore was actually in the bus or not.26. Thirdly, Naval Kishore was a total stranger to the witnesses as all of them had come from Agra to Karauli. However, Naval Kishore was never subjected to a test identification parade by the police.27. Fourthly, according to many of the witnesses the police told them the name of Naval Kishore at the hospital. Therefore, it is the police who is trying to falsely implicate him in the present case. Hence, the learned Judge is not justified in convicting him for offence under Section 302/34 IPC.28. Lastly, the learned Judge has convicted Naval Kishore of offence under Section 302/34 IPC solely on the ground that he did not stop Raju from hitting the injured and the deceased with the bus. However, such thinking is untenable.29. On the other hand, Mr. N.S. Dhakar, the learned Public Prosecutor, has submitted that according to Narendra (P.W. 10), it is Naval Kishore who had asked the passengers to board the bus. Moreover, both according to Jitesh (P.W. 4) and Narendra (P.W. 10), Naval Kishore had driven the bus from Hindon to Karauli. Therefore, his presence in the bus is proven.30. Secondly, since Naval Kishore did not try to stop Raju, therefore, he shared the common intention with him for committing the crime. Therefore, the learned Public Prosecutor has supported the impugned judgment qua Naval Kishore.31. Heard the learned counsel for the parties.32. Therefore, his presence in the bus is proven.30. Secondly, since Naval Kishore did not try to stop Raju, therefore, he shared the common intention with him for committing the crime. Therefore, the learned Public Prosecutor has supported the impugned judgment qua Naval Kishore.31. Heard the learned counsel for the parties.32. The testimony with regard to presence of Naval is rather unclear. Firstly, Brijesh Devi (P.W.3), an injured passenger of the bus, does not reveal the presence of Naval in her testimony. According to her, it was Raju who had told the passengers to board the bus as the service was free. It was he who had driven the bus from Hindon to Karauli and onwards. Lakhan (P.W.5) claims that there was a second driver besides Raju, but cannot reveal the name of the second driver. Even in the court, he has identified only Raju and not Naval as being present in the bus.33. According to Smt. Kamla (P.W.2), Raju driver was standing next to his bus and asking the passengers to get into the bus as the ride was free. However, in her testimony she does not reveal the presence of Naval in the bus. The other injured witnesses, such as Malna Devi (P.W.1), Bharat Ram (P.W.6), Rekh Singh (P.W.7), Suresh (P.W.8), Dinesh (P.W.9), Jeetu (P.W.12), Sonia (P.W.13), Bantu (P.W.15) have turned hostile and have not supported the case of the prosecution.34. However, both Jitesh (P.W. 4) and Narendra (P.W.10) in their examination-in-chief claim that it was Naval who had driven the bus from Hindon to Karauli. But in their cross-examination, they stand shattered. As quoted above Jitesh (P.W. 4), in his cross-examination, admits that "There was no light either from the front of bus, or inside the bus. They were all switched off. It was around 4.00 O'clock in the morning. At that time who was the driver, I could not see. Later on we learnt the name of the driver that is why in Exhibit-P.3 I did not reveal his name. The police had recorded my statement. It is true that at the time of recording of Exhibit-D.3, I did not know the driver's name. Therefore, I did not mention it. It is true that at the time of recording of Exhibit-D.3, my mental condition was bad. The police had recorded my statement. It is true that at the time of recording of Exhibit-D.3, I did not know the driver's name. Therefore, I did not mention it. It is true that at the time of recording of Exhibit-D.3, my mental condition was bad. That is why we did not tell the police whether from railway station to the petrol pump, it is Naval Kishore who had driven the bus. It is also not mentioned in Exhibit-D.3, nor is it mentioned that Raju Sharma had hit the passengers. It is true that prior to the incident, I did not know the accused persons. It is true that the police did not conduct a test identification parade. At the time when the bus left from Hindon, there was only a single driver. Nobody else was with the driver." Jitesh (P.W. 4) thus gives a self-contradictory statement. Although in the examination-in-chief he would have the court believe that Naval Kishore had driven the bus from Hindon to Karauli, yet he claims that at the time of the incident, Raju was driving the bus. He also claims that there was a 'single' driver in the bus and none else. If so, then who has driven the bus, Raju or Naval Kishore. Jitesh also admits that he did not know the names of the driver Raju or Naval Kishore prior to the incident. The names were told by the police. He also admits that Naval Kishore was not subjected to test identification parade. Thus, it is unclear whether Naval was in the bus or not? And if he were, then what was his role?35. In his examination-in-chief Narendra (P.W. 10) also claims that Naval Kishore drove the bus from Hindon to karauli. Yet, in his cross-examination, he states that "when we got off at the station, there was a person who was calling out that the bus service is free and another man was sitting at the steering of the bus. The person who was saying that the bus service is free his name is Naval. The fact that Naval was calling out about the free service and the fact that Naval had driven the bus from Hindon, I told the police. In Exhibit-D.4 from 'A to B', I had told the police that it was Naval who was calling out for the free service. The fact that Naval was calling out about the free service and the fact that Naval had driven the bus from Hindon, I told the police. In Exhibit-D.4 from 'A to B', I had told the police that it was Naval who was calling out for the free service. I did not tell the police that it was Raju who was calling out. Coming from Hindon to Karauli, once the bus was stopped in the jungle in order to raise the fare. Second time the bus stopped at the petrol pump. Under the light which was there at petrol pump Hathi Ghata, we had recognised the bus driver. This fact I told the police. Why this fact is not mentioned in Exhibit-D. 4, I cannot say. At the petrol pump, we saw Naval getting down from the driver's seat. Naval turned off the bus and kept it standing there. That is where the dispute had arisen. All of us got down from the bus and started walking. It was 4:00 O'clock in the morning and it was dark when the accident took place. When he had walked far of, after 15 - 20 minutes the bus came. All the lights of the bus within and without were turned off. We could see only one person sitting at the driver seat. When the bus came, my back was towards the bus. Who was the person inside the bus, I could not recognize. Who was the driver, I do not know. We did not know Naval and Raju from before. When the police came to the hospital, then we were told that the driver were Raju and Naval. It is the police who told us both the names of Raju and Naval. By that time the police had seized the bus. It is the police who told the bus number to us. When we were told the name and number, at that time, Jitesh, Lakhan and Ghayal were present. After giving my statement to the police, I became unconscious. It is wrong to say that I am giving a false deposition."36. Thus, both Jitesh (P.W. 4) and Narendra (P.W.10) do mention about Naval's presence in the bus in their examination-in-chief. However, in their cross-examinations, both readily admit that they did not know as to who was driving the bus when the incident occurred. It is wrong to say that I am giving a false deposition."36. Thus, both Jitesh (P.W. 4) and Narendra (P.W.10) do mention about Naval's presence in the bus in their examination-in-chief. However, in their cross-examinations, both readily admit that they did not know as to who was driving the bus when the incident occurred. Moreover, they admit that Naval was a total stranger to them. Furthermore, they honestly admit that names of both the accused were revealed by the police in the hospital. Despite the fact that Naval was a stranger, he has not been subjected to a test identification parade. Thus, it is unclear whether Naval was present in the bus when the incident occurred or not.37. A bare perusal of the impugned judgment clearly reveals that the learned Judge has held Naval criminally liable ostensibly on the ground that Naval did not stop Raju from hitting the passengers with the bus. However, as Naval's presence is unclear, the question of his stopping Raju does not even arise. Therefore, the learned Judge is unjustified in convicting Naval of offence under Section 302 read with Section 34 IPC.38. For the reasons stated herein above, the death reference, in D.B. Criminal Death Reference No.2/2014, is declined.39. D.B. Criminal Appeal No.23/2015 and D.B. Criminal Appeal No. 63/2015 are clubbed. In both the appeals, conviction of the appellant Raju for offence under Sections 302, 307 and 323 IPC is upheld. However, the death sentence awarded to appellant Raju is converted to life imprisonment.40. With the modification in sentence, DB Criminal Appeal No. 23/2015 and 63/2015 stand disposed of.41. D.B. Criminal Appeal No.22/2015, Naval Kishore v. State of Rajasthan is allowed. The judgment dated 11th December, 2014 passed by the Additional Sessions Judge, Karauli in Sessions Case No.31/2013 qua accused appellant Naval Kishore is set aside.42. Accused appellant Naval Kishore is acquitted of the charges under Sections 302/34, 307/34 and 323/34 IPC. He shall be released forthwith, if not wanted in any other case.43. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Naval Kishore, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Naval Kishore, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment, or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court. *******