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1. The Death Reference No. 2/97 (R) and the Criminal Appeal No. 103/97 (R) we taken up together as both relate to a judgment of conviction both recorded by Sri Pradeep Kumar, Addl. Sessions Judge, Gumla, in Sessions Trial No. 177 of 1995 and thereby and thereunder Sunil Tirkey and Benjamin Minj were found guilty under Section 302/34 of the Indian Penal Code and as against them a death sentence was awarded and similarly these two appellants were found guilty also under Sections 396, 120-B and 201, IPC, but no separate sentences were, awarded under these counts. Appellant Prakash @ Kahto Oraon, Julius Bara and Sunil Minj were found guilty under Section 302/34 and also under Section 396, IPC and they were sentenced to undergo imprisonment for life under both the counts separately, but no separate sentence was recorded under Section 201, IPC and it was ordered that both the sentences will run concurrently. For the reason that aforesaid two appellants were awarded death sentence, so a reference was made by the trial Court for confirmation of their death sentence by this Court. This common order will dispose of this death sentence reference and also the appeal preferred by these five appellants.

29. At the very outset, it can be said that evidence as discussed above clearly prove that all the appellants participated in this crime, that is, of dacoity and in course of dacoity murder of three priests were committed. Though admittedly there is no direct evidence, but from ample circumstantial evidence including recovery of weapon and stolen articles, it can be said that murder of three priests were committed in the same transaction and also dacoity was committed and some articles were looted away. In such situation, if murder and dacoity were committed simultaneously and the participation of more than five persons, then in that view of the matter, Section 396, IPC is attracted and, thus, conviction and sentence of the appellants under Section 302, IPC in any view of the matter appears to be surpluses because if murder is committed in course of dacoity, then Section 396, IPC is applicable and punishment under Section 396, IPC and that of Section 302, IPC is the same. The Supreme Court in a case reported in 1997 Vol. 2 Eastern criminal Cases 166 (Mukchund @ Kunda Mishra and Anr. v. State of M.P.) clearly held that if the prosecution can successfully prove that the offence of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, then, the Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In the instant case, the dacoity and murder were committed in the same transaction and immediately after the occurrence, weapons used in this occurrence and stolen properties were recovered from the possession of the appellants, as discussed above. In that view of the matter, all the appellants are guilty under Section 396, IPC and recording of conviction and sentence separately under Section 302/34, IPC is definitely unwarranted and surpluses and as such it is hereby set aside. But the conviction of all the appellants under Section 396, IPC is hereby confirmed and maintained, as recorded by the trial Court.

31. So far the conviction of the appellant Prakash @ Kahto Oraon, Julius Bara and Sunil Minj are concerned, the trial Court sentenced them to undergo rigorous imprisonment for life under Section 396, IPC and no separate sentence was awarded under Section 201, IPC. So the sentence as against these three appellants does not require any interference and as such it is hereby confirmed and maintained. Consequently the appeal preferred by them is hereby dismissed.

32. Regarding the appellant Sunil Tirkey and Benjamin Minj who were awarded death sentence and for that a Reference has been made for confirmation, this much can be said that after coming into force of the Cr PC of 1973, that too, provision of Section 354(3), now the trial Court has to assign a special reason and to make out a case for awarding death sentence and prior to that where that death sentence was prescribed for any offense along with life imprisonment, than the situation was wholly otherwise and awarding of the death sentence was the rule and life sentence was the exception. But now in view of the legislative change, the duty is cast upon a Court to make out a case for awarding this extreme punishment of death. The Apex Court has considered the question of sentence, more particularly, the death sentence on various occasions and it was held that provision of death penalty is an alternative punishment in Penal Code is not unconstituted and it is in the public interest and it was held that in a sense to kill is to be cruel and all murder, and cruel, but such cruelty may vary in its degree and culpability and it is only when the culpability assumes the proportion of extreme deprivation, that special reason can legitimately be said to exist. Their Lordships after taking into consideration various factors including the age, mitigating circumstances, manner in which the offence was committed, came to the conclusion and laid down certain principles that only in rarest of rare case death sentence can be awarded.

37. Considering all these facts including the tender age of these two appellants, I am of the opinion that this case does not come within the purview of rarest of rare cases and does not deserve death sentence. In that view of the matter, the death reference made under Section 366, Cr PC by the trial Court as against the appellants Sunil Tirkey and Benjamin Minj is hereby rejected and these appellants are found guilty under Section 396, IPC as recorded by the trial Court and their death sentence is hereby commuted to that of rigorous imprisonment for life. Similarly, these two appellants are also found guilty under Section 201, IPC but no separate sentence is awarded as held by the trial Court. For the reasons mentioned above, the other three appellants, namely, Prakash @ Kahto Oraon Julius Bara @ Madan and Sunil Minj are also found guilty under Section 396, IPC and sentenced to rigorous imprisonment for life as awarded by the trial Court, is hereby confirmed and maintained. These appellants are also found guilty under Section 201, IPC as found by the trial Court, but no separate sentence is awarded.