JUDGMENT

Tulzapurkar, J. - The only point raised by counsel for the appellant m this appeal relates to the question of sentence. The appellant, on conviction under section 303 Indian Penal Code has been sentenced to death. Counsel has contended that in view of this Court's decision in Mithu etc. etc. v. State of Punjab etc, etc.1 section 303 Indian Penal Code has been held to be unconstitutional and the appellant's case in so far as the sentence is concerned will have to be regarded as any other case falling under section 302 Indian Penal Code. Secondly, counsel has urged that the instant case does not fall within the category of rarest of the rare cases so as to attract extreme penalty of death. Thirdly, counsel has brought to our notice that Brahmi, a co-accused along with the appellant, both of whom were involved in the incident in which 32 injuries came to be inflicted to the deceased Ashok Kumar alias Shoki, has been awarded life imprisonment and as regards the circumstances concerning the assault on Ashok Kumar, the case of the appellant is not distinguishable from that of Brahmi and, therefore, the appellant deserves to be awarded lesser punishment, namely, imprisonment for