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PETITIONER: BRIJLALA PD. SINHA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       13/07/1998

BENCH: M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH         CRL. APPEAL Nos. 218/98, 279/98 & 280-282/98                           JUDGMENT PATTANAIK,J.      These five  appeals are  directed against  the judgment dated 28.11.1997, of the Patna High Court passed in Criminal Appeal No.  459 of  1996 and  Death Reference No. 5 of 1996. All the accused appellants are police officials. All of them were convicted under Section 302/34 IPC and were directed to be hanged  till they  are dead  by  the  learned  Additional Session Judge,  Gaya. Accused  appellant Dudh  Nath Ram,  in addition,  was  convicted  under  Section  201  IPC  but  no separate sentence  was awarded.  The High  Court, on appeal, being preferred  by the  accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal  Procedure Code  affirmed the conviction of all the accused  appellants under  Section 302/34,  but  on  the question of sentence while the High Court affirmed the death sentence awarded  against Dudh  Nath Ram - appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha - appellant in Cr,. Appeal  NO. 149 of 1998, and Victor Fedeles - appellant in Crl.  Appeal No. 279 of 1998, commuted the death sentence as against  accused Dinesh  Singh, Deo  Narain Ram, Jaikaran Yadav and  sentenced them  to undergo imprisonment for life, who are  the appellants  in Criminal  Appeal Nos.  280-82 of 1998. The  main ground  for giving  sentence of imprisonment for life  as against  the aforesaid three appellants is that they were  merely the  constable and  obeyed the commands of their superior  officers and,  as such, their case would not come within  the test laid down by this Court to bring it as a rarest of rare case.      Broadly  stated  the  prosecution  case  sought  to  be established through different witnesses is that accused Dudh Nath Ram  was the Station House Officer of Barachatti Police Station in  the State  of Bihar. On the early morning of 5th of December  1993 while  Dudh Nath  was taking  tea Jaikaran informed that  a  Maruti  Van  has  been  speeding  up  with criminals and  there has been indiscriminate firing from the said Maruti vehicle. On getting this information the accused Police Officials  immediately left  the  Police  Station  to

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chase the Maruti Van. The Maruti Van, however, was forced to stop on  account  of  a  traffic  jam.  The  chasing  police officials came near the Maruti Van and started firing at the Van indiscriminately  in consequence of which 3 persons from amongst the  occupants of  the Maruti  Van were  killed  and their dead  bodies were  then removed  in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating  therein that  as the  occupants of the Maruti Van started  firing at  the  police  personnel,  the  police personnel resorted to firing and in course of the occurrence 3 persons  were found  dead. It  may be stated at this stage that prosecution  tried to establish a case that the accused police officers after chasing the Maruti Van and finding the van to  be immobile on account of traffic jam surrounded the said van  and dragged Rajesh and Khedan from the vehicle and demanded a  sum of  Rs. 1  lakh, but  when Rajesh  could not accede to the request then he and Khedan were shot dead from the close  range and  the driver  who  was  sitting  on  the driving  seat  was  also  gunned  down.  This  part  of  the prosecution case,  however, could not be established as none of the  prosecution witnesses  unfolded  this  part  of  the prosecution case.  It may  be further  stated that a written report was  submitted to  the Superintendent of Police, Gaya on 9.12.1993,  alleging therein  that the  police  officials have committed  * murder of three persons as their demand of one lakh  of rupees  could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the  investigation of  the said case was taken up by the C.I.D. Patna  under Government Order and it is on completion of the  investigation  of  the  said  case  chage-sheet  was submitted against the accused persons and on being committed to the  Court of  Sessions the  accused persons  stood their trial. The  accused persons pleaded not guilty and according to them  a false  case has  been  foisted.  The  prosecution examined as  many as  65 witnesses  and  exhibited  a  large number of  documents. The  prosecution  witnesses  who  were supposed to  unfold the  manner in  which the  incident took place  at   71  Mile   Post  on   G.T.  Road,   namely,  PWs 2,4,5,9,10,11,12,17,18,20,22035,40,52,53,54,56,57,60 and  61 all  became   hostile  and   were  cross-examined   by   the prosecution. Similarly,  PWs  13,15,16,21,30,46,47,  and  49 were also  tendered by  the prosecution  cross examined  and consequently  their  evidence  could  not  be  pressed  into service in  establishing the  charges  against  the  accused persons. PWs  6,7,8,9,14,19,33,34,38,39,50,51,58,59,62,  and 64 are  the police  personnel examined  in this case. PWs 24 and 55  are the  formal witnesses  to  the  seizure  on  the seizure list.  There is  no dispute  that  on  the  date  of occurrence of 5.12.1993 at 71 Mile Post at about 7.30 a.m. 3 persons   were killed.  But in  the absence  of  any  direct testimony as  to the  manner in  which they  were killed the prosecution case  hinges upon  the circumstantial  evidence. The learned  Session Judge  relying upon the evidence of PWs 63 and 65 came to hold that deceased Rajesh Dhawan alongwith Khedan Yadav and Vinay Kumar Mishra proceeded from Ranchi to Varanasi in  the night  of 3.12.1993.  On the  basis of  the evidence of  PWs 23,41,42,44,45,  and 48 the learned Session Judge came  to hold that Rajesh Dhawan had made purchases at Varanasi on  4.12.1993. The  witnesses also further revealed that two  other persons had accompanied Rajesh Dhawan. PW 65 established the fact that she had a telephonic talk with her husband from Varanasi on 4.12.1993 at 7.00 p.m. On the basis of the  evidence of  PWs 26,27,28,29,31  and 32  to  learned Session Judge  came  to  hold  that  the  vehicle  in  which deceased Rajesh  Dhawan was  travelling with  other  persons

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developed certain  defect and  misfiring was noticed at 7.00 a.m. on 5.12.1993. On the basis of the evidence of pWs 7 and 8, who  are the  two constables present at Barachatti Police Station the learned Session Judge came to hold that early in the morning  accused Jaikaran  came and  informed while Dudh Nath Ram  and others  were taking tea at the Police Station, that some  dacoits are speeding up in a Maruti Van and while speeding up  they are  also firing from their revolver. Thus the aforesaid  prosecution evidence  clearly establishes the fact that  five accused  appellants excepting  accused  Brij Lala Prasad  Sinha moved in a Police Jeep chasing the Maruti Van on being informed that the miscreants are speeding up in a Maruti  Van and  while so  speeding up  are  indulging  in firing from   their  weapons. The  said PWs  7,8 and  9 also stated in  the Court  that on 5.12.1993, the accused persons returned to Barachatti Police Station with three dead bodies and the  damaged Maruti Van No. BR-14b/7407 and this fact is also corroborated  by the  by the evidence of PWs 58, 59 and PWs 27,28,29,31  and 32.  Accused  Dudh  Nath  Ram  was  the Officer  in-charge   of  Barachatti   Police   Station.   He immediately after  arriving at the Police Station got a case registered-Barachatti P.S.  Case No.  146/93 stating therein that after  chasing the Maruti Van near 71 Mile Post on G.T. Road  when   they  found  the  van  to  be  stationary  they challenged the  occupants of  the Maruti  Van and  when  the occupants of  the said  Van  started  using  at  the  Police personnel, the  Police personnel retaliated by firing and in course of  such firing  3 occupants  of the  Maruti Van were killed. This part of the case which could have been accepted as a  defence version  has not at all been established in as much as  there is  no iota  of material to indicate that the occupants of  the Maruti  Van had at any point of time fired at the  Police officers  nor there  had  been  any  mark  of violence on  the Police  Van which  unhesitatingly point out that false  defence plea  had  been  taken  by  the  accused persons more particularly, accused Dudh Nath Ram who was the Officer  in-charge  of  Barachatti  Police  Station  on  the relevant date  of occurrence.  It is  significant to  notice that though  the Officer  in-charge accused Dudh Nath Ram is supposed to have made a written report indicating the manner in which the 3 occupants of the Maruti Van were killed in an police encounter,  but such  written  statement  or  the  so called FIR  did not  reach the higher officers of the Police Department and  in fact  from the  evidence of PWs 58 and 64 the learned  Sessions Judge  came to hold that until arrival of the  higher officers  of the  State no  FIR was lodged by accused Dudh  Nath Ram. On examining different seizure lists made by Dudh Nath Ram on the relevant date of occurrence and the inherent  inconsistencies in  those  seizure  lists  the learned Session  Judge came  to the conclusion that in order to suppress  the truth and to cover up the truth the seizure list was  prepared  later  on  as  an  after  thought  which indicates the  guilty mind  of the  accused persons.  In the aforesaid seizure list two country made pistols and two live cartridges were  alleged to have been seized from the Maruti Van and those arms and ammunitions had been sent to Forensic Science Laboratory,  Patna, for examination. The evidence of PW 34  and his reports Exhibit 16 and 16/1 clearly indicates that the  cartridges found  near  the  dead  bodies  of  the deceased persons  could not  be fired  from the country made pistols seized  near the  dead bodies and those pistols were defective. The  report also  further revealed  that the said pistols had  never been used. The aforesaid evidence clearly belies the  defence theory  that the occupants of the Maruti Van were  speeding up  by firing  from  their  arms  on  the

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relevant date.  The dead  bodies of  the 3  occupants of the Maruti Van  were sent  to the  Gaya Hospital for post mortem examination and  doctor PW  1 conducted  the autopsy  on the dead bodies  of the  said 3 persons. The post mortem reports are Exhibits  1, 1/1  and 1/2.  The evidence of PW 1 clearly establishes the  fact that  the appearance  * blackening  of margins on  the wounds on the bodies of the deceased persons is suggestive  of the  fact that  the fire arm has been used approximately within  18 inch.  The learned  Session  Judge, therefore, came  to the conclusion that the deceased persons had been  shot at  from a  very  close  range.  The  learned Session Judge  also relied  upon Exhibits  13/22, 13/23  and 13/24 which  happened to  be the photographs of the deceased persons and  on that  basis read with the evidence of doctor PW 1  came to  hold that  it cannot  be  the  result  of  an encounter in which case there should have been some distance between both  the parties  but  in  the  case  in  hand  the distance between the parties was very close. The evidence of PWs 58  and 59  who had  visited the  place of occurrence on 6.12.1933  alongwith   Dudh  Nath  Ram,  Victor  Fedles  and Brijlala Pradsad establishes the fact that they did not find any mark  of violence  at a  distance of  25 meters from the G.T. Road  in the  north side  where it was alleged one dead body was  found in the bush. They also did not find any mark of blood  or mark  of violence.  The learned  Session  Judge analysed the  evidence of  PWs 58,  59 and  62 and then held that the  story of encounter as alleged by the defence could not be believed. Exhibit 17/1 is the Register indicating the supply of  fire arms  to the  accused persons Dudh Nath Ram, Brijlala Prasad  Sinha and  Victor Fedles. PW 38 examined by the prosecution indicated in his evidence that the rounds of cartridges which  he had  supplied to  the aforesaid accused police  officers.   Even  the  Register  Exhibit  18  series corroborates the  aforesaid factum  of supply of cartridges. Later on the accused persons have surrendered their arms and ammunitions together  with empty  cartridges from  which the learned Sessions Judge came to hold that the accused persons must be  held to  have utilised  those cartridges in killing the 3  persons who  were the  occupants of Maruti Van on the relevant date  occurrence. The  photograph of Maruti Van BR- 14B/7407 in  which  the  deceased  persons  were  travelling clearly demonstrated  the fact  that the glasses of the said Van were  broken and  there were marks of firing on the Van. On the  other hand,  there was  not an iota of damage to the vehicle in  which the  police officers  were chasing and the learned Sessions  Judge, therefore,  came to  the conclusion that the firing was made only by the accused persons and not from the  side of  the deceased persons. The learned Session Judge relying  upon the  evidence  of  PW  58  came  to  the conclusion that  even though  the Supdt. Of Police, Gaya had ordered that  PW 58 would investigate into the case but Dudh Nath Ram  never handed  over the  charge of investigation to him for quite some time. His evidence further indicated that when he  searched for  the Station  Diary and asked about it from  Munshi   Shabir  Ahmad,  the  Station  Diary  was  not available at  the Police  Station and  he was told that Dudh Nath Ram had taken away the same. Even the Station Diary was not available  on 8.12.1993  when PW 58 wanted the same. Non availability of  the Station Diary at the Police Station and the reply  of Munshi Shabir Ahmad to PW 58 that the same has been taken away by the accused Dudh Nath Ram was relied upon by the  learned Session  Judge as  an additional link in the chain  of   circumstances  to   establish  the  case  beyond reasonable doubt  and in  completing the  chain. The learned Session Judge  also relied upon the evasive answer which the

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accused persons had given in their examination under Section 313 Cr.  P.C. and  ultimately came to hold that these police officials have  brutally fired  at the stationary vehicle on account of  which 3  occupants of  the vehicle  were killed. After noticing  the law  on the  question of  circumstantial evidence and on the circumstances established in the case by the prosecution witnesses the learned Sessions Judge came to hold that  there is  no hesitation  in mind that the accused persons committed  brutal murder  of 3  innocent persons who had no  criminal antecedents  and rather they were civilised persons  of   the  society.   The  learned   Session  Judge, therefore, held  the accused  persons guilty  under  Section 302/34 IPC.  Though  accused  persons  stood  charged  under Section 379/149  but the learned Sessions Judge came to hold that the  said allegations  of theft of Rs. 20,000/- had not been satisfactorily proved by the prosecution and as such he acquitted the  accused persons of the said charge. So far as the charge  under Section  120B IPC is concerned the learned Sessions Judge  came to hold that the prosecution had failed to  prove  said  charge  beyond  any  reasonable  doubt  and acquitted them  of this  charge. So  far as the charge under Section  201   IPC  is  concerned  on  an  analysis  of  the prosecution evidence the learned Sessions Judge came to hold that the  accused Dudh  Nath Ram alone is guilty of the said offence and  other accused  persons cannot be held guilty of those charges  and as  such they  were acquitted of the said charges. Coming  to the  question of  sentence  the  learned Sessions Judge  was of the opinion that 3 innocent civilians having been  killed brutally  in the  hands of  the  accused persons who  are police  personnel and on whose shoulder the safety of  the civilians  lies and  who are deemed to be the protector  of  the  society  and  they  have  killed  the  3 civilians without  any provocation  and resistance  the case should be  held to  be one  of the  rarest of  rare cases in which the  accused persons  deserve capital  punishment  and accordingly directed that each of them should be hanged till they are dead.      On appeal by the accused persons and a reference having been made for confirming the sentence of death under Section 366 of the Code of Criminal Procedure, the High Court by the impugned  judgment   came  to   the  conclusion   that   the prosecution in  this case  has been  handicapped in adducing the evidence  regarding the  actual manner of occurrence and also regarding  the participation  of individual  accused in the commission  of  the  crime  for  which  they  have  been charged,  tried   and  convicted.   But  on  re-appreciating evidence establishing  the  circumstances,  the  High  Court agreed with  the conclusion  of the learned trial Judge that the prosecution  has been able to establish that the accused persons brutally  murdered three occupants of the Maruti Van by resorting  to fire  from a  close range.  The High  Court further came  to the  conclusion that  it appears  to be the absurd proposition and it indicates that there has been good deal of  fabrication and  manipulation  for  distorting  and destroying the evidence in this case from the very beginning and it  further appears  that the  police personnel  in this case were  very much  conscious of  this fact  that innocent persons have  been killed  and in  order to save their neck, they started  making preparation  of their  defence at  that very stage.  On re-appreciation  of the  evidence  the  High Court agreeing with the learned Sessions Judge held that the stand of  the defence  that the  occupants of Maruti Van BR- 14B/7407 had  opened fire  at the police party necessitating opening of  fire by  the police  party at  the Maruti Van is wholly falsified.  The further  plea that  two  country-made

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pistols were recovered near the dead body of the deceased is also falsified  from the  report Ex.  16/1. Ultimately,  the High Court came to the conclusion that the victims have been killed by  the police  in a  show of  fake encounter  and it appears that  the circumstances  leading to  this occurrence are most  unfortunate for a civilized society and the police force is  meant for protecting the law abiding citizens from anti-social elements  and to  come  to  the  rescue  of  the citizens  of  onslaught  from  the  mighty  and  influential persons but  the role of police in this case appears to have been reversed.  On a  scrutiny of  evidence, the  High Court also came  to the conclusion that it appears to be true that actually the  killing had taken place in a deliberate manner because the deceased failed to fulfil their demand of money. The High  Court ultimately  came to  the conclusion:  "it is thus clear  that all  the six  appellants in  this case have participated in  the commission of this ghastly and gruesome murder which  was committed  in a most indecent manner which was likely  to shake the confidence of people in the law and order machinery  of the State." Having come to the aforesaid conclusion and  going to  the question  of sentence the High Court was  of the  view that  the sentence  of death awarded against three accused, namely, Dudh Nath Ram, Brijala Prasad Sinha and  Victor Fideles  does not require any interference but so  far as  the sentence  of death  awarded against  the other three  accused, namely,  Dinesh Singh, Deo Narayan Ram and Jaikaran  Yadav are  concerned, they  being  subordinate policemen and  were acting  under the order and direction of their superiors,  the  extreme  penalty  of  death  sentence cannot be  awardee to them, and therefore, it commuted their sentence to life imprisonment. Thus by the impugned judgment of the  High Court  in case  of 3  of the  accused  persons, namely, Dudh  Nath Ram,  Brijlal  Prasad  Sinha  and  Victor Fideles the  sentence of  death was confirmed and in case of other three  accused  persons  the  sentence  of  death  was commuted to life imprisonment.      Mr. Rajinder  Singh, learned  senior counsel  appearing for appellant  Dudh Nath Ram, Mr. U.R. Lalit, learned senior counsel appearing  for appellant Brij Lala Prasad Sinha, Mr. V.A. Mohta,  learned senior  counsel appearing for appellant Victor Fideles,  assailed the conviction of their respective clients, inter alia on the ground that in the absence of any direct evidence as to the occurrence at 71 Mile Post and the prosecution having  relied on  the circumstantial  evidence, the circumstances  proved cannot  be held to be a conclusive nature so  as to  exclude every hypothesis but that of guilt and as  such, the  conviction under Section 302/34 is wholly unwarranted. It  was further  contended that  the  ballistic expert’s report  being to  the effect  that the revolvers of these police  officers had not been used and the post mortem report of the three deceased persons having established that death occurred  on account  of injuries  caused  by  pellets which are  from the  rifles  used  by  the  constables,  the learned Session  Judge and  the High Court committed serious error  in  convicting  the  police  officers  under  Section 302/34. On  the question  of sentence it was contended, that even if  a conviction  under Section  302/34 can  at all  be sustained but the case cannot be held to be a rarest of rare case warranting  extreme penalty  of death. According to the learned senior counsel the High Court as well as the learned Session Judge  have been  swayed away  by the  fact that the case is  a sensational  one in  the State  of Bihar as three innocent citizens have been killed from the gun shots of the police officers.  It the sensation and emotion of the Courts are taken  out from  the purview  of consideration,  of  the

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evidence adduced,  no aggravating  circumstances  have  been established so  as to  inflict the  extreme penalty of death sentence. It  was also  urged by  the learned senior counsel that the  Courts below  committed error  in  coming  to  the conclusion that  the police  officials must  have used their revolvers from  the mere  fact that  certain cartridges have been supplied to them but the number of cartridges deposited is less than the number of cartridges supplied. According to the learned  senior counsel there is not an iota of material to establish  any prior  planning or  meeting of mind of the accused police officers and the prosecution evidence clearly establishes that since Jaikaran stated That some dacoits are fleeing away  in a  Maruti Van  the police  officials chased them and  then came  back with  the  dead  bodies  of  three persons and,  therefore, there  is no  material evidence  to attract Section  34 even if a common intention could develop at the  spur of  the moment.  Mr. U.R. Lalit, learned senior counsel appearing  for appellant  Brij Lal  Prasad Sinha, in addition, to the aforesaid arguments also contended that ASI Brij Lala  did not go with accused Dudh Nath Ram as has been indicated by  PWs 7  and 8.  He went in a private jeep which had been  kept at  the Police Station and the prosecution is guilty of suppressing the evidence of the said driver of the jeep. There  is no evidence of any ballistic expert that the revolver of Brij Lala was used on the date of occurrence and merely for  non-explanation of  9 rounds  of  cartridges  no conclusion  can  be  arrived  at  that  those  9  rounds  of cartridges  had   in  fact   been  used  at  71  Mile  Post, particularly  when   there  has  been  no  seizure  of  such cartridges from  the place  of occurrence.  According to Mr. Lalit,  learned   senior  counsel   it  has  no  doubt  been established that  the dead  bodies  of  three  persons  were brought to the Police Station in the jeep in which Brij Lala had gone  but that  by itself  cannot bring  home the charge under Section  302/34 as  against accused  Brij Lala Prasad. Mr. Lalit,  learned senior  counsel also  contended that the examination of  accused Brij Lala under Section 313 Cr. P.C. has  been   perfunctory  and   the  relevant   incriminating materials  have  not  been  put  which  has  caused  serious prejudice and,  therefore, the  conviction of  accused  Brij Lala Prasad under Section 302/34 is vitiated.      Mr. Mohta,  learned senior counsel appearing for Victor Fideles  in  addition  to  the  arguments  advanced  by  Mr. Rajinder Singh,  learned senior  counsel contended  that the plea of  alibi raised  by accused  Victor ought to have been accepted, since  admittedly, he  had been  transferred since July 1993  to Gaya  and the  Courts below committed error in rejecting the  pleas of  alibi. He  also contended  that the cartridges have been  issued to Victor on 19.11.1992 and the cartridges deposited  in Malkhana  was on 30.12.1993 and any shortage of  cartridges during  this period  of more  than a year would  not lead  to the  conclusion that the cartridges were used on the date of occurrence. According to Mr. Mohta, learned senior  counsel, positive  evidence of the ballistic expert being  the revolver  of Victor  had not been used the Courts below committed error in convicting him under Section 302/34 even  if it  is established  that he  had accompanied Dudh Nath  Ram from the Police Station in chasing the Maruti Van, and  at any rate the award of extreme penalty of death, according to  Mr. Mohta,  learned senior  counsel, is wholly unjustified.      Mr. Sibbal,  learned senior  counsel appearing  for the three constables  attacked the judgment of the High Court on the ground  that it  proceeds on mere conjectures and not on legal evidence adduced in the case. According to Mr. Sibbal,

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the learned  senior counsel  the  circumstances  established through prosecution evidence do not unhesitatingly point out towards the guilt of the accused persons and, therefore, the conviction of  the accused appellant under Section 302/34 is unsustainable in law.      Mr. Sinha,  learned senior  counsel appearing  for  the State of  Bihar, on the other hand, contended that no doubt, there is  no direct evidence as to the manner in which three occupants of  Maruti Van were killed and all the prosecution witnesses who  were to establish the same turned hostile and does not  support the prosecution case. But according to Mr. Sinha, learned  senior counsel the circumstances established in the  case in  hand are  sufficient to  prove  the  charge beyond  reasonable   doubt   and   the   entire   chain   of circumstances is  complete, and therefore, no error has been committed  in  finding  the  accused  appellants  guilty  of offence  under  Section  302/34.  According  to  Mr.  Sinha, learned senior counsel, the chain of evidence as against the accused persons  is so  complete that  it does not leave any reasonable ground for a conclusion consistent with innocence of the  accused and  on the  other hand,  it only points out that within  all human probability it is the accused persons who are  the perpetrators  of the  crime who have killed the three innocent  persons who were occupants of the Maruti Van on the  fateful day.  According to  Mr. Sinha  when the dead bodies of  three innocent persons were brought to the Police Station which  has been  established beyond reasonable doubt by the  evidence of  PWs 7 and 8 and the explanation offered by accused  persons that  there was  an encounter  in  which these persons  have been  killed has not been established at all and  no other  explanation is forthcoming in such a case an  additional   link  is   established  in   the  chain  of circumstances to complete the chain and, therefore, the High Court was  wholly justified  in recording a conviction under Section 302/34  IPC. Mr.  Sinha, learned senior counsel also urged  that  looking  at  the  brutality  with  which  three innocent persons  were murdered from a close range by firing at them  by police  officers the High Court was justified in affirming  the  death  sentence  as  against  three  accused persons and  this Court  should not  interfere with the said sentence of  death. According  to Mr.  Sinha, learned senior counsel, the evidence of PWs 7 and 8 clearly establishes the fact that  Jaikaran came  and narrated  that Some miscreants are speeding  on a  Maruti Van and are simultaneously firing from the  said vehicle  and on  hearing  the  same  all  the accused  persons  except  accused  Brij  Lala  Prasad  moved together being  fully armed  with their respective revolvers and rifles.  The prosecution evidence also is categorical to the fact  that the speeding Maruti Van was forced to stop at 71, Mile Post on account of traffic jam. The evidence of PWs 7 and  8 further  indicates that  the police party headed by Dudh Nath  Ram returned  back with  three dead bodies on the private jeep  in which Brij Lala Prasad had proceeded to the place of occurrence after Dudh Nath Ram and others had left. The prosecution  evidence also  further establishes the fact that the  Maruti Van was found to be having marks of bullets which establishes  the fact  that the police party had fired at the  Maruti Van. The Inquest Report prepared by Dudh Nath Ram at  8.00 a.m.  at the Police Station Exhibits 3, 3/1 and 3/2 indicates  that Dudh  Nath Ram  knew the  names  of  the victims and,  therefore, it is not a case of unknown persons fleeing away  on a  Maruti Van  as deposed  to PWs  7 and 8. Though the  prosecution evidence  indicates  that  from  the scene of   offence  some arms and ammunitions were recovered but the report of the Forensic Science Laboratory Exhibit 16

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establishes the fact that those arms had only been implanted as those  were not  in a  condition to be used. According to Mr. Sinha,  learned senior counsel, the prosecution evidence indicating replacement of Exhibit 7 by its copy to office of CID suggests  the guilty  mind of accused Dudh Nath Ram. The learned senior counsel also urged that the evidence of PW 58 clearly indicates  that pieces of bones and blood marks were found from the Maruti Van. Then against the Kurta and Pyjama of deceased  Rajiv on  being examined was found to have been shot at  with copper  and lead  bullet as  per exhibit 16/2. According to  the learned  senior counsel  PW 38 establishes the fact  that revolvers  and rifles  were entrusted  to the accused persons  and these  accused persons  also  deposited their revolvers and rifles as well ass the cartridges and no explanation was  offered for the shortage of cartridges. Mr. Sinha, learned  counsel also  submitted that the post mortem report exhibit  1 series  as well  as the  evidence of  PW 1 clearly establishes the fact that firing at the deceased had taken place  from a  very close  ranges. Dudh  Nath Ram,  in addition, made  an extra  judicial confession  to PW 25. Mr. Sinha also  submitted that  Statement recorded  by Dudh Nath Ram contains  an admission  on his part that as there was an encounter the  police party  fired at  the  Maruti  Van  and ultimately three  people  were  killed  but  the  so  called encounter is  falsified by the fact that the police jeep did not have  a single  mark of violence. On these circumstances established by  the prosecution evidence the only conclusion that  can   be  arrived  at  is  that  the  accused  persons mercilessly fired  at the Maruti Van in consequence of which three innocent  persons were  killed, and  therefore, all of them could  be held  liable under Section 302/34 IPC. On the question of  sentence Mr.,  Sinha,  learned  senior  counsel submitted that  three officers have been rightly awarded the death sentence  and the  High Court perhaps was justified in commuting the  sentence of death to imprisonment for life in case of three subordinate police officers who had obeyed the commands of their superiors.      Before  we   examine  the   correctness  of  the  rival submissions  in  the  light  of  evidence  adduced  and  the circumstances established, it would be appropriate to notice one feature  in this  case, namely,  the examination  of the accused persons  under Section  313 Cr.P.C.  has been highly perfunctory. In  course of hearing, therefore, we had called upon the  counsel  appearing  for  the  accused  persons  to indicate whether they would prefer the matter being remitted to the  Sessions Judge for proper examination of the accused under Section  313 Cr.P.C.  by bringing  to their notice all the relevant  incriminating material  against them which the prosecution  seeks   to  rely  upon.  But  all  the  counsel appearing for  different accused  persons unanimously  state that they  would not like the matter to be remanded again in view of  protraction of  the litigation since they feel that no prejudice  can be said to have been caused to the accused persons for  such a  perfunctory examination  of the accused under Section 313 Cr. P.C. In view of the aforesaid State of affairs we  proceed to  examine the correctness of the rival submissions at the Bar.      As has  been stated  earlier there  is no  evidence  to indicate the manner in which the three persons in the Maruti Van were  killed. Conclusion  on the same, therefore, has to be arrived at from the circumstantial evidence. In a case of circumstantial  evidence   the  prosecution   is  bound   to establish the  circumstances from  which the  conclusion  is drawn must  be fully  proved; the  circumstances  should  be conclusive  in  nature;  all  the  circumstances  should  be

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conclusive in  nature all  the circumstances  so established should be  consistent only  with the hypothesis of guilt and inconsistent   with    the   innocence;   and   lastly   the circumstances  should  to  a  great  certainty  exclude  the possibility of  guilt of  any person  other than the accused [See (1992)  2 SCC  300]. The law relating to circumstantial evidence no  longer remains res integra and it has been held by catena  of decision  of this court that the circumstances proved should  lead to no other inference except that of the guilt of  the accused, so that, the accused can be convicted of the  offences charged.  It may  be stated  as a  rule  of caution that  before the  court records  conviction  on  the basis of  circumstantial evidence  it must  satisfy that the circumstances from  which inference  of guilt could be drawn have been  established by  unimpeachable  evidence  and  the circumstances unerringly  point to  the guilt of the accused and  further   all  the  circumstances  taken  together  are incapable of  any explanation  on any  reasonable hypothesis save the  guilt of the accused. It is not necessary to delve into any  further, on  the law  on the subject which has now been  crystallised  by  several  decisions  of  this  Court. Bearing in  mind the aforesaid principles let us examine the circumstances said to have been proved by the prosecution by unimpeachable evidence.  Since three  of the appellants have been sentenced  to death  by the  learned Sessions Judge and said sentence had been affirmed by High Court, we thought it appropriate to  examine the  reliability of  the prosecution evidence and the circumstances so proved by such evidence to find out  whether all the links in the chain are complete or not. PWs 7 and 8 are the two Constables, who had been posted at  Barachatti  police  station  on  the  relevant  date  of occurrence. These  two witnesses  have been  believed by the learned Sessions  Judge as  well as  by the  High Court  and nothing has  been pointed out to us in this Court to discard their testimony,  in fact  no argument  has been advanced on that score.  According to  PW7 on  the early  morning of 5th December, 1993,  while Dudh  Nath Ram and Victor were at the police Station,  Jaikaran Yadav  came there  and  said  that criminals  are  moving  ahead  firing  shots.  Getting  this information the Officer In-charge, Dudh Nath Ram, Victor and two Constables  and a Havildar went on a Maruti Van and Brij Lala later on went by a private jeep which used to remain at the police  station. Further  evidence of  PW7 is  that when these officers  returned back to the police station they had brought three dead bodies in the jeep with them and they had also brought  one Maruti Van by toeing. This evidence of PW7 has been  fully corroborated  by PW8  who was also posted at the police  station on  the date.  On the  evidence  of  the aforesaid two  witnesses it  can be  safely  held  that  the prosecution has established beyond reasonable doubt that all the police  officers excluding  Brij Lala  Prasad on getting information from Jaikaran went together in a Maruti Van with their arms and ammunitions chasing the alleged criminals and then returned back with three dead bodies as well as another Maruti Van. The evidence of PW7 further establishes the fact that the  Maruti Van  which had  been brought  by toeing was found to  be damaged  and blood  marks were also seen on the said vehicle. He further stated that the dead bodies brought by the  police people  had  bullet  injuries  on  them.  The prosecution evidence  clearly establishes  the fact that the speeding vehicle had to stop at 71 Mile Post on account of a traffic jam  and the  police personnel could easily approach the said vehicle, which was immobile. It is also established beyond reasonable  doubt  that  the  vehicle  in  which  the deceased persons were moving had several bullet marks at its

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body and pieces of bones and blood marks has also been found in the said vehicle as stated by PW - 58.      So fat  as accused  Dudh Nath  Ram is concerned, he was the officer  in-charge of  Barachatti Police  Station and he made several  fabrications and  manipulations which the High Court itself  has found  and  his  own  statement  which  is Exhibit 25/1  clearly indicates  that the  police  personnel resorted to  firing when the occupants of Maruti Van started firing at  them. The  statement that occupants of Maruti Van started firing at the police personnel has been falsified by the fact  that the police vehicle did not have a single mark of bullet  on its  body. Then  again the  two  country  made pistols which  were supposed  to have  been seized  from the Maruti Van by Dudh Nath Ram under Exhibit 17/1 had been sent to the  ballistic expert  for examination  and the report of the expert  Exhibit 19/2  was that  it was not at all in fit condition  to   be  used.   It  is  further  established  on examination  of  the  cartridges  which  had  been  sent  to Forensic Science  Laboratory supposed to have been used from the country  made pistols by the occupants of the Maruti Van that those  cartridges have  not been fired from the country made pistols  which clearly  falsifies the statement of Dudh Nath Ram that occupants of Maruti Van had opened fire at the Police party  which necessitated  the opening of fire by the police party itself. That part of the statement of Dudh Nath thus having  been falsified  the further  admission of  Dudh Nath that  police party  fired at the Maruti Van remains and can be utilised as against Dudh Nath as an admission, though the other  accused persons  will not  be bound  by any  such admission of Dudh Nath. Cloths seized from the Maruti Van as well as  the cloths  of the  deceased from  their person had been sen  to Forensic  Science Laboratory for being examined and the report Exhibit 16/2 indicates user of copper bullets and lead  bullets which  corroborates the  statement of Dudh Nath that  police party  had resorted  to fire at the Maruti Van. When  the police personnel left the Police Station with arms in  their hands and returned to the Police Station with three dead  bodies, it  was for  them to  explain under what exact circumstances  three people  were  killed.  The  exact Circumstances pleaded  in defence  by Dudh  Nath Ram  to the fact that when occupants of Maruti Van started firing at the police party  the police  party also  fired at them has been belied, as already discussed. Non-explanation of the members of the police party indicating the circumstances under which three people  were killed is an additional link in the chain of circumstances completing the chain to indicate that three people were killed on account of firing by the police party. In this  connection it  would be  appropriate to notice that the post  mortem examination  held by  PW 1 through the post mortem reports Exhibit 1 series as well as the oral evidence of PW  1 and  his findings  unequivocally indicates that the police party  resorted  to  firing  at  the  three  deceased persons from  a very  close range. This also runs counter to the defence case that it is an encounter in which the police personnel resorted  to firing  when  the  occupants  of  the Maruti Van  started  firing  at  the  police  personnel.  In addition to  all these  circumstances unerringly pointing to the fact  that three people were killed on account of firing from the police part, the conduct and behaviour of Dudh Nath Ram in  taking away  the Station  Diary Book from the Police Station, which  was made  available only on 9.12.1993, which is also  established from  the evidence  of PW  58  and  the conclusion of the High Court that there has been a good deal of fabrication and manipulation in distorting and destroying the evidence  from the  very beginning  goes a  long way  to

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establish the culpability of accused Dudh Nath Ram.      It  is  true  that  on  the  circumstances  proved  the conclusion is  irresistible that  three occupants  of Maruti Van were  killed at  71 Mile  Post on account of firing from the police personnel, but when the police personnel left the Police Station on being informed by jaikaran that miscreants are speeding  up in  a Maruti  Van they  had no intention of killing those  persons. At  least there  is nothing  in  the evidence of PW 7 and 8 to indicate that the police personnel left the  Police Station  with the  intention of killing the miscreants. The  question, therefore, arises whether all the police personnel  can be  held guilty  by taking recourse to Section 34  of the  Indian Penal  Code in the killing of the three occupants  of the  Maruti Van or only some of them can be held   responsible?  The liability  of one  person for an offence committed by another in the course of a criminal act perpetrated by  several persons  will arise under Section 34 of the  Indian Penal  Code only  where such  criminal act is done in furtherance of a common intention of the persons who join  in  committing  the  crime.  Direct  proof  of  common intention will,  of course  be difficult  to  get  and  such intention can  only be  inferred from the circumstances. But the existence  of a  common intention  must be  a  necessary inference from  the circumstances  established  in  a  given case. A  common intention can only be inferred from the acts of the  parties. Unless a common intention is established as a  matter   of   necessary   inference   from   the   proved circumstances the  accused persons  will be liable for their individual act and not for the act done by any other person. For an  inference of  common intention  to be  drawn for the purposes of  Section 34,  the evidence and the circumstances of the  case should  establish, without  any room  for doubt that a  meeting of  minds and  a fusion  of ideas  had taken place amongst  difference accused  and in  prosecution of it the overt  acts of  the accused  persons flowed out as if in obedience to  the command  of  a  single  mind.  If  on  the evidence  there   is  doubt  as  to  the  involvement  of  a particular accused  in the  common intention, the benefit of the doubt  should be given to the said accused person. There is no  dispute with  the proposition that a common intention can develop  at the  spur of  the moment  and in the case in hand in  view of  the evidence of PWs 7 and 8 there being no intention to  kill the  occupants of  Maruti  Van  when  the police personnel  left the  Police Station on being informed that miscreants  are speeding  up in  a Maruti  Van, such  a common intention  could have  developed at  71 Mile Post but the question  for consideration  is what  is the evidence in the present  case to  indicate  that  in  fact  such  common intention had developed at 71 Mile Post and further what are the overt  acts committed  by some of the accused persons to rope in all the police officers, as has been stated earlier. All the  accused persons  excepting Brij  Lala  Prasad  left together in  a vehicle  with their  arms and  ammunitions on being informed  that some  miscreants are  speeding up  in a Maruti Van.  Dudh Nath  Ram was the Station House Officer of Barachatti  Police   Station.  The  three  police  officers, namely, Dudh  Nath Ram,  Victor Fedels  and Brij Lala Prasad were armed  with revolvers  which has  been established from the  entries   in  the  Register  of  Arms  and  ammunitions maintained in the office and Exhibited as Exhibit 18 series. The other  3 constables  had been  supplied with  rifles and after the  incident those  rifles had been seized. Report of the Director  of Forensic  Science Laboratory  Exhibit  16/6 indicated that  the 303  calibre rifles  bearing nos. 35893, AA-0511 and  28896, which  had been  supplied to  the  three

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constables were  in  working  order  and  can  be  used  for effective fire  arms. As a result of microscopic examination of fired  shells it  was concluded that the fired shells had been fired  from the  three rifles.  So  far  as  the  three revolvers which  had  been  supplied  to  the  three  police officers, namely,  Dudh  Nath  Ram,  Victor  and  Brij  Lala Prasad, the  report indicated that those also can be used as an effective  fire arm but the sign of the firing can not be detected as  barriers and  chambers had clearly been cleaned after firing. The said report also indicated that the firing had been  done at  least 8  rounds on the Maruti Van through 303 barrel weapons in downward Direction.      From the  post-mortem report it further transpires that from the dead bodies of three deceased persons missiles were recovered and  on  examination  of  those  missiles  in  the Forensic Science  Laboratory it is established that the same had been  fired form  303 rifles. This fact establishes that death of  three persons  occurred on  account of firing from 303 rifles  which had  been used by the three Constables but at the  same time  the vehicle  in which  the three deceased persons were  moving as well as the bundles of sarees inside the vehicle  on being  examined was found to have been fired at by 38 Revolvers which Revolvers had been given to accused Dudh Nath Ram and accused Victor, as per the statement of PW -  38.   From  the   aforesaid  circumstances   proved,  the conclusion becomes  irresistible that  at 71  Mile Post  the police party  resorted to  firing from  a close range on the Maruti Van  and its  occupants which  was immobile  and this firing had  been made  not only from the rifles possessed by the three  constables but  also from the revolvers possessed by the  police officials  though factually the three persons got killed  on receiving bullet shots from 303 rifles. It is also established  that the  cartridges supplied  to  accused Dudh Nath  Ram and  Victor and  cartridges received back did not tally  and there  was no explanation for the shortage of such  cartridges.  These  bundle  of  circumstances  clearly established the  fact that  all the  accused persons  except accused Brij  Lala  Prasad  who  went  together  with  their respective arms and ammunitions in the police vehicle though initially went to chase the miscreants who were told to have been speeding up in a Maruti Van but at 71 Mile Post finding the said  Maruti Van  stationary,  indiscriminately  started firing through  their respective  weapons  which  ultimately resulted in  the  killing  of  three  persons  and  as  such intention to  finish up  the occupants  of  the  Maruti  Van developed at  the very  place suddenly and therefore the two police  officers  would  be  equally  liable  as  the  three constables notwithstanding  the fact  that death occurred on account of receiving shots from 303 rifles used by the three Constables.  In   addition  to   the   aforesaid   clinching circumstances against  the five  police officials  excepting accused Brij  Lala Prasad,  so  far  as  Dudh  Nath  Ram  is concerned the additional links in the chain of circumstances have been  established from  the fact that he had taken away the  stationary  entry  from  the  police  station,  he  had prepared seizure  list which  contradicts each other, he had manipulated the  records and documents and he had introduced the story  of encounter which has not been established. Such manipulation of  the police  papers and  the  special  diary entries  made  by  Dudh  Nath  Ram  together  with  his  own statement that the police party fired at the Maruti Van make out a  full proof  case so  far as  accused Dudh Nath Ram is concerned. Dudh  Nath Ram was the leader of the police party being Station  House Officers, he took other police official team and  chased the  Maruti Van and then ultimately started

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firing at  the Maruti  Van from a close range as a result of which  these   three  people   killed.  From  the  aforesaid circumstances established  by the  prosecution, we  have  no hesitation in  affirming the  conviction of  all the accused persons excepting  accused Brij  Lala Prasad  under  Section 302/34 I.P.C.  It  would  be  appropriate  to  consider  the arguments of Mr. Mohta, the learned senior counsel appearing for accused Victor that the Courts below had committed error in rejecting  the plea of alibi. According to Mr. Mohta, the learned senior counsel Victor Fedles had been transferred to Gaya since  July 1993  and the  Station Diary  of the Police Station indicated that he was on duty from 8.00 a.m. to 2.00 p.m. and  it is,  therefore, apparent  that on  the date  of occurrence and at that relevant point of time he was present elsewhere in  the Civil Lines Police Station and, therefore, the prosecution  has failed  to establish  that  he  was  at Barachatti Police  Station  on  the  early  morning  of  5th December, 1993. When a plea of alibi is raised by an accused it is  for the  accused to  establish the  said by  positive evidence. Under  Section 11  of the  Evidence Act collateral facts having  no connection with the main fact except by way of disproving  any material  fact, proved or asserted can be admitted in  evidence. In  other words  the facts  proved as such  which  make  the  existence  of  the  fact  so  highly improbable  as  to  justify  the  inference  that  it  never existed, but  such fact  has to be established by the person who takes the plea. In other words if Victor by evidence has established that  he was  present elsewhere  at the relevant point of  time when  the occurrence  took place  then Victor cannot be  held guilty  of the  offence. But  in the present case the  presence of  accused Victor  at Barachatti  Police Station   on    5.12.1993   has    been   stated    by   PWs 7,8,17,19,28,58,59, and 64. Even PW 64 the then S.P. of Gaya also  stated   about  the  presence  of  accused  Victor  at Barachatti Police  Station on 5.12.1993. No attempt was made by Victor  to call  for and prove the Station Diary of Civil Lines Police  Station dated  5.12.1993 to  establish that he was present  at Civil  Lines Police  Station on the relevant date. Though the prayer was made in course of hearing of the argument to  call for  the Station  Diary  such  prayer  was rightly rejected  by the  learned Sessions  Judge. There  is thus  not  an  iota  of  material  available  on  record  to establish the plea of alibi of accused Victor and under such circumstances the  Courts below  had no other option than to reject such  a plea. We are, therefore, unable to accept the submission of  Mr. Mohta,  learned senior  counsel appearing for Victor  that  the  plea  of  alibi  has  been  illegally rejected. In  our considered  opinion, in the absence of any materials such  a plea  cannot be  sustained.  The  question whether award  of extreme  penalty of  death to accused Dudh Nath Ram  and Victor  is at all justified will be considered later.      But at  this stage  it will  be appropriate to consider the sustainability  of the  conviction of  accused Brij Lala Prasad under  Section 302/34 I.P.C. The two star prosecution witnesses PWs  7 and 8 unequivocally indicate that Brij Lala Prasad did  not accompany  Dudh Nath  Ram and  other  police officials in  chasing the  Maruti Van  but left  the  police station after about half an hour by a private jeep which had been stationed at the police station.      As has  been indicated  earlier when  the police  party left the  police station  they  had  no  intention  to  kill anybody much  less the three occupants of the Maruti Van and they had left for the purpose of arresting these persons who were alleged  to be miscreants/dacoits and who were state to

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have been  speeding up  in a  Maruti Van  by firing from the same Maruti  Van.  Neither  the  ballistic  report  nor  the forensic  Science   Laboratory  report   indicate  that  the revolver that  had been given to Brij Lala Prasad had at all been used  at 71  Mile Post.  It is of course true that when the police  party came  Brij Lala  Prasad also came together and the three dead bodies had been brought by them. The only evidence  which   possibly  can   be  said   to  have   been established,  so   far  as,  accused  Brij  Lala  Prasad  is concerned is  that there  was some  shortage  of  cartridges which had  been supplied  to him and no explanation had been offered by  him. But merely for such shortage of 9 rounds of cartridges, which  had been  supplied to Brij Lala Prasad, a year before  the date of occurrence, it is difficult to come to the conclusion that at 71 Mile Post, Brij Lala Prasad who left the police station half an hour after Dudh Nath Ram and others had  left, had at all used his revolver and therefore from the  circumstances established against Brij Lala Prasad it is  difficult to  hold that  he also  shared  the  common intention which  developed at  71 Mile  Post. Not  only  the prosecution evidence  established the  fact that he left the police station half an hour after the police party headed by Dudh Nath Ram had left chasing the Maruti van but also there is no iota of material so far as accused Brij Lala Prasad is concerned to establish any meeting of mind of said Brij Lala Prasad with the other police party who resorted to firing at 71 Mile  Post. Then  again the jeep with which the Brij Lala Prasad went  was being  driven by  a private  driver and  he would have  been the best person to indicate the role played by such  Brij Lala  Prasad but unfortunately the prosecution has not  examined the  said driver had not been examined. In the aforesaid circumstances, we entertain considerable doubt as to the involvement of accused Brij Lala Prasad in sharing the common  intention of killing three persons in the Maruti Van, and therefore, in our considered opinion he is entitled to the  benefit of  doubt.  We  accordingly  set  aside  the conviction and  sentence passed  against accused  Brij  Lala Prasad for  the offence  under  Section  302/34  I.P.C.  and direct that  he be  set at  liberty unless  required in  any other case.      Coming to  the question as whether for conviction under Section 302/34  I.P.C. the  courts below  are  justified  in awarding death sentence to accused Dudh Nath Ram and Victor, we find  that the learned Sessions Judge as well as the High Court have  not kept  in view  the principles  enunciated by this Court  in awarding  of death  sentence but on the other hand being  swayed away  by their own emotions on the ground that police  officials took  recourse to  firing to helpless citizens. As  has been  discussed the death of three persons occurred not  from the  firing from  revolvers held  by Dudh Nath Ram  and Victor  but on  account of firing from the 303 rifles held  by the  three Constables.  It is  true that the prosecution evidence  establishes the  fact that  firing has taken place from a very close range but that by itself would not make  out  the  case  to  be  a  rarest  of  rare  cased justifying the  extreme penalty  of  death.  No  aggravating circumstances have  been indicated  so far  as accused  Dudh Nath Ram  and accused  Victor are  concerned  to  award  the extreme penalty  of death sentence. The judgment of the High Court starts  with the  expression  that  the  case  may  be treated "  as one  of the  most sensational  trials  of  the recent years,  so far as the State of Bihar is concerned and according to  the High  Court the murder is a diabolical one because three  innocent persons  have  been  killed  by  the police officers  who were  supposed to  be the protectors of

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law abiding  citizens." We  are constrained  to observe that the High Court has not kept in view the several decisions of this Court  and has  not examined  the circumstances  proved while considering  the question of sentence but on the other hand have  been swayed  away with  the  fact that trial is a sensational  one,  and  therefore,  the  officials  must  be awarded the extreme penalty of death. We do not find that it is a  correct appreciation of the law on the subject dealing with award  of death  penalty, even  if a  conviction  under Section 302/34  I.P.C. is  sustained. The  learned  Sessions Judge also  came to  the conclusion  that the  case  can  be treated to  be a rarest of rare cases as police officials on whose shoulders the safety of citizens lie and are being the protectors of  the society  are accused for killing of three civilians without any provocation and resistance.      From the  facts narrated and discussed in this judgment and the  circumstances established  through the  prosecution evidence we  do not  find any  aggravating circumstances  as against Dudh  Nath Ram  and Victor  to award  death sentence against them  merely because  they happened to be the police officers and  the constables  at their  comands  might  have resorted to  fire from  303 rifles  at their  possession. In this view  of the  matter, while we uphold the conviction of accused Dudh  Nath  Ram  and  Victor  under  Section  302/34 I.P.C., we  set aside  the sentence of death awarded against them and commute the same to imprisonment for life.      In the  ultimate analyses, therefore, the conviction of appellant Brij  Lala Prasad  under Section  302/34 I.P.C. is set aside  and he  is acquitted  of the  said charge  and is directed to  be set  at liberty forthwith unless required in any  other   case.  Criminal  appeal  No.  149  of  1998  is accordingly allowed.  conviction of  appellant Dudh Nath Ram and appellant  Victor under  Section 302/34 I.P.C. is upheld but the  award of death sentence against them is commuted to imprisonment for  life. Criminal  Appeal No. 218 of 1998 and Criminal Appeal No. 279 of 1998 are disposed of accordingly. The conviction  of appellants - Dinesh Singh, Deo Narain Ram and Jaikaran  Yadav under  Section  302/34  I.P.C.  and  the sentence of  imprisonment for  life is  upheld and  Criminal Appeal Nos. 280-82 of 1998 stand dismissed.