IMPORTANT POINT
When the occurrence took place almost 10 years ago and for the last more than 6 years the specter of death has been hanging over the head of the accused. The High Court should not have advanced the sentence from hfe imprisonment to death because for exercising its discretion in choosing the sentence the trial Court had given elaborate reasons.

Headnote:(i) Indian Penal Code, 1860 - Sections 302/ 149 - Conviction under - Appeal - All the deceased died as a result of the assault on them by firearms and other weapons. Complainant being an injured witness did not name A2, A3, A6 and A10 as members of the accused party in the First Information Report - None of the witnesses produced has been able to ascribe any particular role to A2, A3, A6 and A10 evidence to reveal that the prosecution has uI1ade a concerted effort to improve upon its case and implicate A1 A3, A6 and A10 along with the other accused persons later on - Prosecution failed to prove the case against these four accused beyond a reasonable doubt - They, therefore, deserve to be given the benefit of doubt and acquitted - Court not to deny benefit of judgment toA10 only because he has not filed any appeal against his conviction and sentence. (Paras 6 & 17)
       (ii) Indian Penal Code, 1860. Sections 302 and 302/149 Convictions under - Appeal Eye-witnesses - Recoveries made pursuant to disclosure statements not doubted - Conviction u/s. 302/149 sustainable - 10 murders in broad daylight - Assault made by the accused party led by all on unarmed and innocent persons. Previous enmity between parties - Question of sentence - In the peculiar facts and circumstances of the case, when the occurrence took place almost 10 years ago, High Court should not have enhanced the sentence of All from life imprisonment to death. [Cr. P.C. - Sec. 354 (3)]
       Held: In the instant case, the Trial Court dealt with the question of sentence elaborately from paragraphs 83 to 92 of the judgment and after referring to statutory provisions and taking note of the legislative change which has since been brought about by Section 354 (3) Cr. P.C. and some judicial pronouncements came to the conclusion that the sentence of imprisonment for life would meet the ends of justice. Therefore, the Trial Court did not merely, by a cursory order, impose the sentence of life imprisonment and used its discretion not to award the capital sentence of death for detailed reasons recorded by it. The reasons given by the Trial Court cannot be said to be wholly unsatisfactory or irrelevant much less perverse. The High Court differed with the reasoning of the Trial Court and almost 5 years after the Trial Court had pronounced the judgment proceeded to enhance the sentence of A 11 from life imprisonment to that of death sentence. The High Court also gave its own reasons in support of its view on the question of sentence. The High Court, however, did not opine that the reasons given by the Sessions Judge were perverse or so unreasonable as no Court could have advanced the same. It took a different view of the legislative policy as also of the law laid down by this Court and referred to some other judgments of this Court also in support of its "reasons" to impose the sentence of death. The view taken by the High Court, it can legitimately be said is also a possible view. (Para 14)
       Further held, that in the peculiar facts and circumstances of this case, when the occurrence took place almost 10 years ago and for the last more than 6 years the specter of death has been hanging over the head of A 11, Cachucha, the High Court should not have enhanced the sentence from life imprisonment to death because for exercising its discretion in choosing the sentence the trial court had given elaborate reasons which it cannot be said no judicial mind could advance. Only because the High Court looked at those reasons differently, in our opinion, it did not justify the enhancement of sentence to death sentence. (Para 16)
       (iii) Sentence - Power of enhancement of sentence available with the High. Court to be sparingly exercised - No hard and fast rule can be laid down as to in which case the High Court may enhance the sentence from life imprisonment to death - Each case depends 'am its own" facts and on a variety of factors – Sentencing process has to be stern where it should be. (Para 11)
       Result: Appeals of A2, A3 and A6 allowed. Appeal of A 11 accordingly allowed. Appeals of remaining accused A1, AS, A7, A8, A9 and A12 dismissed.

JUDGMENT

Dr. Anand, J. - Twelve persons namely, Bharatsinh Pathubha Gohil, Dhruvansinh Bharatsinh Gohil, Antruddhsinh Bharatsinh Gohil, Jodha KhodaRabari, Bhikhubha Shivubha Gohil, Bhupatsinh Bahadursinh Gohil, Kuvarsinh Ajitsinh Gohi! Nirubha, Ajitsinh, Baldevsingh Alias Babushka Aruba Ghoul, Jacobean Bharatslnh Gohil and Mohansinh alias Natasha Ranchhodbhai Thaker alias Selanki alias Parma were tried for offences punishable under Section 120-B read with Section 302, 307, 48 I.P.C. read with Section 149, Section 143 and in the alternative under Section 302, 307/34 I.P.C. and Section 25A of the Arms Act by the learned Sessions Judge, Bhavnagar. (For the sake of convenience and brevity we shall refer to the No of the accused Al to A12, in the same order in which their names appear in the Trial Court).

2. The Trial Court found that all the accused, as members of an unlawful assembly, under the leadership of accused No. 11 responsible for the death of deceased Diwaliben. It also held all the accused as members of unlawful assembly, responsible for the death of Jaram Bhagvan and Odhavji Bhagvan In the opinion of the Trial Court. Accused No. 11 was also responsible for the death of deceased Purshottam Jaga and Popat Lakha Further, accused Nos. 1, 5, 7, 8, 9, 10, 11 and 12 with active part played by accused Nos. 3, 10, 11 and 12 were held responsible for the death of Gurdhan Lakha. Accused Nos. 1, 2, 5, 7, 8, 9, 10, 11 and 12 with active part played by accused Nos. 5, 8, 11 and 12 were also held responsible for the death of deceased Babu Bacher. The learned Sessions Judge also held guilty all the members of unlawful assembly, with an active part played by Accused No. 11 for the death of Madhu Khoda and Nagji Khoda. With regard to injuries caused to craggy Mavji, all the accused were held guilty for an offence under Section 324 I.P.C. The Trial Court observed that with regard to the injury caused to Madhu Naran Of the accused were guilty of the offence under Section 307/149 I.E. and with regard to injury caused to Purshottam Mali all the accused were held responsible for the offence under Section 307/149 I.P.C. The learned Sessions Judge also found that Dhanji Bhagvan had been caused injuries by all the accused and therefore, they were guilty of an offence under Section 307/149 I.P.C. They were all sentenced to undergo life imprisonment for the offence under: action 302 I.P.C. and 302/149 we; P.C. No separate sentence was, however, imposed for the offence modern Section 120-B I.P.C. A1, A2, A5, A8, A9, 11 and A 12 were also sentenced to suffer rigorous imprisonment of 3 years and to pay a fine of Rs. 1,000/- each or in deafen further undergo 'rigorous imprisonment for six months for the offence under Section 25A of the Indian Arms Act. All the substantive sentences were directed to .un concurrently. The accused filed an appeal in The High Court and the State also filed an appeal Seeking enhancement of the sentence of life imprisonment to death sentence, since the accused had been found guilty of committing as many as 10 murders. The High Court acquitted A4. Accepting the State appeal in part, it awarded the sentence of death of All, Jashubha only. The High Court confirmed the conviction and sentence of life imprisonment on rest of the accused. Conviction and sentence for other offences was also maintained. The accused have, by special leave, filed this appeal challenging their convictions and sentences. There is, however, no appeal filed on behalf of A 10, who has since been absconding.

3. The prosecution case is as follows.

Village Mangadh and Chomaland are separated only by a boundary of earth embankment. In 1980 some Patels of village Mangadh committed the murder of 3 Darbars namely, Bhimdeysinh Ajitsinh, son of A9, Khengarbha Chandubha and Sajubha Patubha, brothers of A1. A9 Patels of village Mangadh were tried for the said offence but acquitted. Enmity and hostilities between the two factions continued on 20 of September, 984 th

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