Rape and murder. while doing rape , murder happen due to gagging her mouth with her saree, taking in to consideration of the age of the accused who are not habitual offenders, and chances of reform themselves, death penalty converted in to life for 21 years as it is not a rarest of rare case.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.166-167 OF 2010 Ramnaresh & Ors. ... Appellants Versus State of Chhattisgarh ... Respondent J U D G M E N T Swatanter Kumar, J. 1. The present appeals are directed against the concurrent judgments of conviction and award of capital punishment. The Additional Sessions Judge, Pendra Road, District Bilaspur, convicted the four accused (the appellants herein), for offences under Sections 499, 376(2)(g) and 302 read with Section 34 of the Indian Penal Code, 1860 (for short `IPC') and sentenced them vide judgment and order of sentence dated 20th November, 2007 as follows: Offences Punishment/Sentence 1 302/34 IPC Award of capital sentence and ordered that they be hanged till death. 376(2)(g) IPC Life Imprisonment and fine of Rs.200/- each. In case of default in the payment of fine, each accused to further undergo an additional rigorous imprisonment of one month each. 449 IPC Ten years rigorous imprisonment with fine of Rs.200/- and in default to undergo additional rigorous imprisonment for one month. 2. The Division Bench of the High Court vide its judgment dated 24th July, 2009 confirmed the judgment and order of sentence passed by the learned Additional Sessions Judge giving rise to the present appeal. 3. Learned counsel appearing for the appellant, inter alia, but primarily, has raised the following challenges to the judgments under appeal: (1) That the prosecution has failed to prove its case beyond any reasonable doubt. 2 (2) That the sole witness, PW6, Dhaniram is not a credible witness and, in fact, he himself falls within the realm of suspicion as being an accused. Number of other witnesses including, PW2, Sunita, PW5, Bela Bai, and PW10, Kamlesh, turned hostile in the court. This clearly is indicative of false implication of the accused. (3) That there are variations and serious contradictions in the statements of the witnesses, which have been relied upon by the courts, while convicting the accused. (4) Furthermore, there is an inordinate and unexplained delay in lodging the FIR. Therefore, the conviction of the accused is unsustainable. The contention is that the linking evidence is missing in the present case. The incriminating evidence produced by the prosecution does not connect the appellants with the commission of crime. (5) The High Court has erred in law in relying upon the statement of the witnesses which are not reliable. The courts are expected to examine statements of such witnesses and/or sole witness cautiously. The learned Trial Court as well as the 3 High Court has failed to apply these settled principles correctly to the facts of the present case. (6) FSL report does not clearly state or link the appellants with the commission of the crime. For these reasons and grounds, the appellant claims acquittal. 4. Before we proceed to discuss the merits or otherwise of the above contentions, it will be necessary for us to state the case of the prosecution and the evidence on record. Rajkumari (the deceased) was residing at Village Gullidand, Police Station Marwahi, with her husband Indrajeet and two infant children. On 8th August, 2006, her husband had gone to the house of his father at Rajnagar. Rajkumari was at her residence with her children. On 9th August, 2006, Rajkumari had called Dhaniram, their domestic servant, to sleep in their house in the night. It was the day of Raksha Bandhan. Anita (PW3), Savita (PW2) and Bela Bai (PW5), neighbours of Rajkumari, visited her house to view television in the night. At about 9 o'clock, they went back to their houses after viewing television. Ranjeet Kewat, is the brother of Indrajeet and brother-in-law of Rajkumari. He had a house near the house of 4 Indrajeet. Vishwanath, Amar Singh, Kamlesh and Ramnaresh, who used to reside at the house of Ranjeet came to his house, sat there for some time and then went away. At about 11.30 p.m., they are stated to have again come to the house of Ranjeet and consumed alcohol. Thereafter, at about 12 o'clock in the night, when Rajkumari had gone to sleep in her room and the servant, Dhaniram, was watching television in the verandah, the accused persons, Ranjeet, Vishwanath, Amar Singh and Ramnaresh came into the house of Rajkumari and told Dhaniram that they would have illicit relations with Rajkumari and if he disclosed anything to anybody, he would be eliminated. Ramnaresh and Amar Singh sat down along with Dhaniram while Ranjeet and Vishwanath went into the room of Rajkumari and committed rape on her. After committing the offence, they came out and took Dhaniram into the courtyard. Then Ramnaresh and Amar Singh entered the room of Rajkumari. They also committed rape on her and came out after some time. Then, the accused asked Dhaniram to go away to which he objected. Upon his objection, he was threatened of elimination. Thereafter, Dhaniram went to the room of Rajkumari and saw that she was breathing heavily, was not able to speak and blood was 5 oozing from her mouth and nose. Dhaniram came out of the room and was again threatened by all the accused. Ranjeet asked him to go to the house of his aunt (bua), mother of Rajkumari and tell her that Rajkumari is not waking up. Before leaving, they extended the threat again and told him to act as per their directions. Dhaniram went to the house of Sugaribai, mother of Rajkumari, PW12 and narrated the incident as he was directed by the accused. Sugaribai asked him to stay at her house while she went to the house of Rajkumari. There she noticed that Rajkumari was lying dead. She called the neighbours and thereafter, the information was given to Indrajeet, husband of the deceased, who came in the morning. Indrajeet visited the Police Station Marwahi and informed about the death of Rajkumari vide Ex.P1. The police visited the spot and took the body of the deceased vide Ex.P3 and also collected other materials from the place of occurrence. Dr. Sheela Saha and Dr. Mahesh Raj conducted the postmortem of the dead body and submitted the postmortem report, Ex.P12, wherein it was opined that death of Rajkumari had taken place due to blockage of breathing on account of strangulation and the act of commission of rape on her was also established. The police registered a case 6 under Section 376/302 IPC vide Ex.P16 and started its investigation. Statements of as many as 14 witnesses were recorded by the police. Various items like blood stained underwear and piece of yellow-coloured saree on which blood spots were visible at various places were also seized from the place of occurrence and were exhibited as Ex.P10. Slide of semen of the accused from the hospital was seized vide seizure memo Ex.P13. Thereafter, the accused were arrested. During further investigation, clothes, shirts and underwear of the other accused persons and the petticot and saree of the deceased were also seized. After the medical examination of the accused, report of the FSL and recording of statements of the witnesses, the police filed the report before the court of competent jurisdiction. The accused were committed to the Court of Sessions and tried in accordance with law, which resulted in their conviction, as afore-noticed. As per Ex.P12, there were following injuries upon the person of the deceased:- "External Injury in the neck- (A) Abrasion with scratch mark by nail present. Abrasion in number, below the angle of right mandible and sternocleidomastoideus muscles present size measuring 0.5 x 0.5 cm (B) Scratch mark - length 1" present above mentioned area. 7 Abrasion on the left side of Neck below the angle of mandible to mastoid process abrasion scratch mark 2 =" present. (C) Abrasion in the thigh 1" x 0.5" and 1" x 1". 1" x 1" contusion on private part on medial side of the Rt. Present on both medial aspect of thigh. ON P/V EXAMINAL Laceration plus abrasion 3 to 4" in no. over perineum. Blood mix discharge present. P/V Ex-Uterus Anteverted normal size." 5. PW1, husband of the deceased had stated in his statement under Section 161 of the Code of Criminal Procedure (Cr.P.C.) that PW6 had not told him as to how Rajkumari had died. In his statement, he had also stated that he had not married Rajkumari and she was staying with him as his mistress. He had been married earlier to a girl from village Pyari. However, he did not remember the name of the girl, as it was more than 16 years ago. He further stated that the deceased Rajkumari was married to one Bhupendra, who was from the village of her father, i.e. village Khongapani. He admitted that he had two children from Rajkumari and also that his relationship with Bhupendra were bitter on account of retaining Rajkumari as his mistress. He also stated that 8 he had suspected Bhupendra of committing the said crime. According to this witness, he was informed by one Mr. Ashok of the incident. He stated that Dhaniram had been serving as a servant with them for the past three years and he used to have his meals and sleep in the verandah of the house. The broken pieces of bangles of Rajkumari were kept by Dhaniram when he cleaned the room. 6. The other witnesses, i.e. PW2, PW5 and PW10, who had seen Ranjeet and the other accused assembling outside the house of Rajkumari had been declared hostile during their examination before the court by the prosecutor. These witnesses, however, had admitted that they had acquaintance with the accused persons as well as with the deceased Rajkumari. PW5, Bela Bai stated that she had gone to watch television in the house of Rajkumari along with Anita and Savita and nobody else was there. It was at that stage that the witness was declared hostile and she denied the suggestion that she had seen the accused persons. This witness and all other witnesses live in and around the house of Rajkumari. 9 7. PW6 who is the main witness of the prosecution, was about 16 years old at the time of recording of his statement in the Court. He fully supported the case of the prosecution and was subjected to a lengthy cross-examination. According to him, he was watching television when Ranjeet along with other accused had come to the house of Rajkumari. He also stated that he did not raise hue and cry as he was under constant threat by the other co-accused, who were surrounding him. He also stated that he was confused and was unable to point out anything at that point of time. In his cross-examination, he was posed the following question, which adds to the veracity of his statement: "Question: - When Raj Kumari was restless due to pain, did you go to call up Ranjeet? Ans:- Why I should have gone to call up Ranjeet when he, in person, was involved in this incident." 8. As already noticed, this witness was subjected to a detailed cross-examination. He also admitted in his cross-examination "it is correct to say that I was afraid whether the police would not make me the accused." 10 9. PW12, Sugaribai, is the mother of the deceased and she had also supported the case of the prosecution and corroborated the statement of PW6. She stated that when she visited the house of Rajkumari, Ranjeet was holding the younger infant of Rajkumari in his lap and she had sent Ranjeet to call the people but instead he called Rewa Lohar, a witch doctor. 10. PW1, PW6 and PW12 had substantially supported the case of the prosecution and we are unable to notice any substantial conflict or contradiction in their statements. The semen, blood and blood- stained clothes, which had been seized during the investigation, had been sent for examination. The report of the FSL had been placed on record as Ex.P23. Such evidence would be admissible in terms of Section 293 Cr.P.C. The merit or otherwise of this report was examined by the High Court as follows:- "(8) During trial, report of the Forensic Science Laboratory, Raipur Ex.P-23 dated 31-7-2007 was produced and admitted in evidence under Section 293 of the Code by which presence of blood on Articles A, B, C, D, E, F1, F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 was confirmed. Seminal stains and human spermatozoa was not found on Articles A and B. The seminal stains on 11 Articles C, D, E, F1 and F2 were not sufficient for serological examination. The Slides Articles G2, H2, I2, J2 and K2 were preserved if D.N.A. Test was felt necessary. The prosecution examined as many as 16 witnesses. The appellants/accused examined Samelal D.W.-1 and Kamla D.W.-2 wife of Ranjeet to establish that the appellants/accused had slept in their respective houses between 9 to 10 P.M. on 9-8- 2006." 11. As is evident from the above findings, the report of the FSL was inconclusive but not negative, which would provide the accused with any material benefit. 12. We have examined this case in light of the above ocular and documentary evidence. One very important aspect of the present case is that the accused were not declared accused instantaneously. Dhaniram had been kept in the Police Station for two days thereafter apparently for the purposes of verifying and investigating what he informed the police. The needle of suspicion pointed towards Dhaniram and Bhupendra for the reason that Bhupendra was earlier married to Rajkumari and Dhaniram with reference to the circumstances in existence at the spot and he being the only person available. It was argued that Dhaniram could have 12 committed the crime as he was the only person present in the house when all the persons watching the television had left the house. Thus, the Investigating Agency had to conduct a proper investigation before it could identify the real suspects and the accused in the case, which in our opinion, the police did. 13. The fact that at a given point of time, some person other than the accused were suspected to have committed the offence would lose its relevance once the investigation is completed, report under Section 173 Cr.P.C. is filed before the Court of competent jurisdiction, of course, unless the Court, upon presentation of the report finds that some other person is also liable to be summoned as an accused or directs further investigation. In the present case, the possibility of PW6, Dhaniram, having committed the crime is ruled out in view of the evidence collected during the investigation. It is nobody's case before us that there is even an iota of evidence which points towards Bhupendra for commission of such an offence. 14. Now, we may deal with the first contention raised on behalf of the appellants with reference to the credibility of the testimony of 13 PW6. The learned counsel appearing for the appellants, contended that PW6, the sole eye-witness, cannot be relied upon to convict the accused for the reason that the witness, being a suspect himself, is not credible and has not spoken the truth before the Court. It is also contended that the Court should deal with the statement of a sole eye-witness cautiously and it may not be very safe to rely upon the testimony of such a witness. In support of his contention, he derives strength from the judgments of this Court in the cases of Joseph v. State of Kerala [(2003) 1 SCC 465] and State of Haryana v. Inder Singh & Ors. [(2002) 9 SCC 537]. In the case of Joseph, this Court has stated the principle that where there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of evidence tendered by other witnesses or the material evidences placed on record. This Court further stated that Section 134 of the Indian Evidence Act does not provide for any particular number of witnesses and it would be permissible for the Court to record and sustain a conviction on the evidence of a solitary eye-witness. But, at the same time, such a course can be adopted only if evidence tendered by such a witness is credible, reliable, in tune with the case of the 14 prosecution and inspires implicit confidence. In the case of Inder Singh (supra), the Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. 15. The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eye- witness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime. 16. In light of this principle, now we may examine the facts of the present case. PW6, at the time of occurrence and even at the time of recording of the statement, was a young boy of 16 years. He had been serving in the house of Indrajeet, PW1, for a number of years 15 prior to the date of incident. It was his regular feature to have his meals as well as sleep in the verandah of the house of PW1. There existed no motive for him to commit the crime. He was kept under continuous threat to his life right from the time Ranjeet and others entered the house of the deceased Rajkumari till the accused were taken in police custody after recording evidence of various persons, more importantly, PW1 (Indrajeet), PW12 (Sugaribai), PW6 (Dhaniram) and PW7 (Dr. Shila Saha). His statement clearly narrates how the offence was committed by the accused and there is nothing abnormal and inconsistent in his testimony. Furthermore, his statement is fully corroborated by medical evidence of PW7, Dr. Shila Saha and the testimony of PW12, Sugaribai. The confirmation of blood on the piece of saree used for gagging the mouth of Rajmukari and the confirmation of presence of semen and human spermatozoa on the vaginal slides of Rajkumari and the findings during autopsy duly proved by PW7, Dr. Shila Saha and the corroboration of other witnesses including that of the Investigating Officer leave no room for any doubt that the appellants had committed house trespass in the house of Rajkumari and committed the offence with which they are charged. 16 A very significant piece of evidence in the present case is the medical evidence and the injuries inflicted upon the body of the deceased. Both, the external and internal injuries that the deceased suffered as a consequence of rape and the strangulation clearly indicate that the crime could not have been committed by a single person. Once that possibility is ruled out, it would attach greater reliability to the testimony of PW6. Thus, the statement of PW6, despite he being the sole eye-witness, need not be doubted by this Court. It fully satisfies the tests of law enunciated in the above judgments of this Court. Resultantly, we find no merit in this submission of the learned counsel appearing for the appellants. 17. The next contention is that there was inordinate delay in lodging the FIR which gave an opportunity to the police to falsely implicate the accused. Thus, the entire prosecution story being founded on the said FIR, needs to be disbelieved by the Court and the appellants be entitled to acquittal. In this regard, reliance has been placed upon the judgment of this Court in the case of State of Gujarat v. Patel Mohan Mulji [AIR 1994 SC 250]. At the very outset, we may notice that the facts of the case in Patel Mohan Mulji (supra) 17 are significantly different from the facts of the case in hand. There, the Court had acquitted the accused not only for the sole reason of delay in recording the FIR but also for the reason that there was close relationship of witnesses with the deceased and the accused. There were discrepancies in the inquest report and clear conflict between the medical evidence and the oral evidence. The evidence of the prosecution was also found to be suffering from serious infirmities. In the present case, none of these exists. There are four or five prosecution witnesses, including PW2, PW3, PW4, PW5 and PW10, who had been declared hostile during the course of hearing of the trial. These witnesses were not the witnesses to the scene of crime. They were witnesses only to support the fact that the accused persons were seen together near the house of the deceased Rajkumari, after all others had gone to their respective houses, after watching television at the house of the deceased. This fact is not the determinative factor and does not demolish the case of the prosecution in its entirety or otherwise. The presence of Ranjeet Kewat at the house of the deceased, Rajkumari, immediately after the occurrence and trying to keep a watch on PW6 clearly shows that the most likely and truthful witness in the 18 case of the prosecution is PW6. PW6, as already noticed, had withstood the long cross-examination despite his young age, the threat extended to him by the accused and being the sole eye- witness of such a heinous crime. It goes to the credit of this witness that despite the fact that other five witnesses had turned hostile being the person of the village, he nevertheless stood to his testimony. 18. As far as the delay is concerned, we are not in agreement with the learned counsel appearing for the appellants that the delay does not stand explained in the present case. The occurrence took place at about 11 p.m. at night in a village area where normally by this time, people go to their respective houses and stay inside thereafter. After committing the rape on the deceased and her subsequent death which itself took a considerable time, the accused persons remained in the house for some time. Thereafter, they made it sure that PW6 goes to the house of PW12 and tells her incorrectly and without disclosing the true facts that the deceased was not waking up despite efforts, which he did and this fact is fully established by the statement of PW12. In the meanwhile, the news had spread 19 and one Ashok had rung up PW1 who came to the spot of occurrence. After seeing his wife in that horrible condition and doubting that Bhupendra might have committed the crime since by that time PW6 had not told him the correct story, he went to the Police Station and lodged the FIR at about 10.50 a.m. on 10th August, 2006. Police registered the FIR under Sections 376 and 302 IPC vide Exhibit P16. Thus, there is plausible explanation available on record of the case file which explains the delay in lodging the FIR. We also cannot lose sight of the statement of PW4, father of PW6, who stated that when he went to the Police Station, he found his son there who informed him that he was in the Police Station since the past two days. His son had challenged all the four accused persons in his presence and later he was informed by the Police that his son was a witness in the case. This witness knew the accused persons as well as the deceased Rajkumari. He was a party to the seizure memo, Exhibit P/7 to P/10 though in the Court he stated that nothing was seized in his presence and, at this stage, he was declared hostile. The statement of PW6 does not suffer from any legal or factual infirmity and appears to be the true and correct version of what actually happened at the scene of occurrence. The 20 delay, if any, in lodging the FIR, thus, stands explained and is, in no way, fatal to the case of the prosecution. 19. Now, we would deal with the contention that the recoveries effected during the period of investigation are improper and inadmissible. The report submitted by the FSL, as per Exhibit P/23, does not indicate or connect the accused with the commission of the crime and, therefore, the case of the prosecution should essentially fail. This argument, again, is without any merit. Firstly, Exhibit P/23 and the effect of the FSL Report have been appropriately discussed by the High Court in its judgment. The articles seized, the human blood noticed on Articles A, B, C, D, E, F1 and F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 confirmed. Seminal stains and human spermatozoa were not found on Articles A and B. The seminal stains on Articles C, D, E, F1 and F2 were not sufficient for serological examination. This was so recorded in Exhibit P23. This document further stated that Articles G2, H2, I2, J2 and K2 were not examined by the FSL, Raipur. It was further recorded that in case of necessity, the DNA test could be performed 21 at Hyderabad. The report also stated that the articles with regard to the blood group and serum had been sent to Kolkata Laboratory for futher investigation. Indefinite conclusion of the expert to this extent, cannot be treated as a report entirely in favour of the accused which ipso facto would entitle them for an order of acquittal. This expert report, has to be examined in conjunction with the oral evidence and particularly the medical evidence. Exhibit P/12 is the post mortem report which has depicted various external and internal injuries on the body of the deceased as afore- noticed. It is also clear that the cause of death of Rajkumari was asphyxia due to throttling. It is further clear from the findings in the post mortem report that petechial hemorrhage of lungs was present, the right side of heart was filled with blood while the left chamber was empty and bloody froth was oozing from nostrils and mouth of the deceased. There has to be a very strong and compelling reason for the Court to disbelieve an eye-witness. Statement of PW6 does not suffer from any contradictions nor is at variance with the case of the prosecution. He was being kept under a constant watch inasmuch as he was the servant of PW1, whose brother Ranjeet was one of the accused. Accused was even present 22 near the dead body of Rajkumari till she was taken for post mortem. We have already noticed that the expert evidence clearly demonstrates, particularly in view of the injuries caused to the deceased during the heinous crime, that it could not have been done by a single person and, therefore, involvement of two or more persons is most probable and in line with the story of the prosecution. The cumulative effect of the oral/documentary and expert evidence is that the prosecution has been able to prove its case beyond any reasonable doubt. 20. It is a case where not only the entire incriminating material evidence was put to the accused while they were being examined under Section 313 Cr.P.C. but also that the accused examined two witnesses DW1, Samelal Kewat and DW2, Kamla, wife of Ranjeet Singh. In their statements under Section 313 Cr.P.C., they have taken the stand that they were not present at the place of occurrence but, in fact, they were present in their respective houses and as such they have been falsely implicated. The two witnesses were examined in support of this fact. DW1 has stated that he lives nearby the house of Rajkumari and he did not hear any noise or 23 cries on the fateful night. He also stated that Ramnaresh came to his house at about 10:00 o'clock when he was going to attend the Ramayana. He further stated that Ramnaresh was in his house and, thus, he could not have committed the crime. DW2 is the wife of Ranjeet. She stated that his husband was sleeping in the house only and on the said date Ramnaresh, Vishwanath and Amar Singh had not visited their house. The cross examination of these two witnesses has clearly created a doubt in regard to the authenticity of their statements. Firstly, as per the version of the prosecution and as is even clear from the medical evidence, the mouth of deceased Rajkumari had been gagged. Therefore, the question of hearing any noise or screaming would not arise and, secondly, DW2 is the wife of the accused and is bound to speak in his favour as an interested witness. Furthermore, both these witnesses had not informed the Police during the course of investigation and even when the accused were arrested that they had been present at their respective houses and not at the place of occurrence. In fact, this has not even been the suggestion of the defence while cross- examining the prosecution witnesses. 24 21. In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh [(2011) 8 SCC 300]. 25 22. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law. 23. In the present case, the accused have denied their presence on the spot, at the time of occurrence. Thus, it was for them to prove that they were not present at the place of occurrence and were entitled to plea of alibi. In our considered opinion, they have miserably failed to establish this fact. On the contrary, the behaviour explained by the defence witnesses appears to be somewhat unnatural in the social set up in which the accused, the 26 deceased and even some of the prosecution witnesses were living. They knew each other very well and the normal course of life in a village is that they are quite concerned with and actively participate in each other's affairs, particularly sad occasions. Ranjeet was present at the place of occurrence and was holding one of the minor children of PW1. This supports the statement of PW6 that he was constantly under threat and watch from either of the accused. The version put forward by the accused in their statement under Section 313 Cr.P.C. is unbelievable and unacceptable. There is no cogent evidence on record to support their plea. 24. For the reasons afore-recorded, we have no hesitation in holding that the prosecution has been able to prove its case beyond reasonable doubt. The accused are guilty of committing the offence under Sections 499, 376(2)(g) and 302 IPC. We hold them guilty of committing these offences. The death sentence and principles governing its conversion to life imprisonment 25. Despite the transformation of approach and radical changes in principles of sentencing across the world, it has not been possible 27 to put to rest the conflicting views on sentencing policy. The sentencing policy being a significant and inseparable facet of criminal jurisprudence, has been inviting the attention of the Courts for providing certainty and greater clarity to it. Capital punishment has been a subject matter of great social and judicial discussion and castacism. From whatever point of view it is examined, one undisputable statement of law follows that it is neither possible nor prudent to state any universal formula which would be applicable to all the cases of criminology where capital punishment has been prescribed. It shall always depend upon the facts and circumstances of a given case. This Court has stated various legal principles which would be precepts on exercise of judicial discretion in cases where the issue is whether the capital punishment should or should not be awarded. 26. The law requires the Court to record special reasons for awarding such sentence. The Court, therefore, has to consider matters like nature of the offence, how and under what circumstances it was committed, the extent of brutality with which the offence was committed, the motive for the offence, any 28 provocative or aggravating circumstances at the time of commission of the crime, the possibility of the convict being reformed or rehabilitated, adequacy of the sentence of life imprisonment and other attendant circumstances. These factors cannot be similar or identical in any two given cases. Thus, it is imperative for the Court to examine each case on its own facts, in light of the enunciated principles. It is only upon application of these principles to the facts of a given case that the Court can arrive at a final conclusion whether the case in hand is one of the `rarest of rare' cases and imposition of death penalty alone shall serve the ends of justice. Further, the Court would also keep in mind that if such a punishment alone would serve the purpose of the judgment, in its being sufficiently punitive and purposefully preventive. 27. In order to examine this aspect in some greater depth and with objectivity, it is necessary for us to reiterate the various guiding factors. Suffices it to make reference to a recent judgment of this Court in the case of State of Maharashtra v. Goraksha Ambaji Adsul [(2011) 7 SCC 437], wherein this Court discussed the law in some detail and enunciated the principles as follows : 29 "30. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The court is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in the case and the impact of awarding punishment. These are the nuances which need to be examined by the court with discernment and in depth. 31. The legislative intent behind enacting Section 354(3) CrPC clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law's instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the court would also take into consideration the mitigating circumstances and their resultant effects. 32. The language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, "in the case of sentence of death, the special reasons for such sentence" unambiguously demonstrate 30 the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception. Even the exception must satisfy the prerequisites contemplated under Section 354(3) CrPC in light of the dictum of the Court in Bachan Singh. 33. The Constitution Bench judgment of this Court in Bachan Singh has been summarised in para 38 in Machhi Singh v. State of Punjab and the following guidelines have been stated while considering the possibility of awarding sentence of death: (Machhi Singh case, SCC p. 489) "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the `offender' also requires to be taken into consideration along with the circumstances of the `crime'. (iii) Life imprisonment is the rule and death sentence is an exception. ... death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment 31 having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." (emphasis supplied) 34. The judgment in Bachan Singh, did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the Court while determining such serious issues and they are as follows: (SCC p. 750, para 206) "206. ... `Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. 32 (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." 35. Now, we may examine certain illustrations arising from the judicial pronouncements of this Court. 36. In D.K. Basu v. State of W.B. this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support 33 of such decision, the Court awarded death penalty in that case. 37. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was no evidence to show that the criminals were incapable of reforming themselves, that it was not a rarest of the rare case, and therefore, declined to award death sentence to the accused. 38. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant consideration in Vashram Narshibhai Rajpara v. State of Gujarat where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this Court in different cases. 39. This Court in Satishbhushan Bariyar also considered various doctrines, principles and factors which would be considered by the 34 Courts while dealing with such cases. The Court discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver. 40. Basing its reasoning on the application of doctrine of prudence and the version put forward by the accused, the Court, while declining to award death penalty and only awarding life imprisonment, held as under: (Satishbhushan Bariyar case, SCC pp. 551 & 559-60, paras 135, 168-69 & 171-73) "135. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. 35 Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realise the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist. * * * 168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or is dependant upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view the evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-`-vis the role played by the accused, on the 36 one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine. 169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. Further, if age of the accused was a relevant factor for the High Court for not imposing death penalty on Accused 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto. * * * 171. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any 37 special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character of death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality. 172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analysed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the `rarest of the rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the `rarest of rare' category. 173. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. 38 Subject to the modification in the sentence of the appellant (A-1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed." (emphasis in original) 41. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the courts within the parameters spelt out under Section 354(3) CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty." 28. In Machhi Singh & Ors. v. State of Rajasthan [(1983) 3 SCC 470], this Court stated certain relevant considerations like the manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and the personality of the victim of murder. These 39 considerations further demonstrate that the matter has to be examined with reference to a particular case, for instance, murder of an innocent child who could not have or has not provided even an excuse, much less a provocation for murder. Similarly, murder of a helpless woman who might be relying on a person because of her age or infirmity, if murdered by that person, would be an indicator of breach of relationship or trust as the case may be. It would neither be proper nor probably permissible that the judicial approach of the court in such matters treat one of the stated considerations or factors as determinative. The court should examine all or majority of the relevant considerations to spell comprehensively the special reasons to be recorded in the order, as contemplated under Section 354(3) of the Cr.P.C. 29. In the case of Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2 SCC 220] while affirming the award of death sentence by the High Court, this Court noticed that `in recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern'. The Court reiterated the principle that it is not possible to lay down 40 any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime, as also the society, has the satisfaction that justice has been done to it. The Court held as follows:- "15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 30. In this case, the Court was concerned with the case of a security guard who had been transferred at the complaint of a lady living in the flats with regard to teasing of her young girl child. The security guard went up to the flat of the lady, committed rape on her daughter and then murdered her brutally. The Court found it to be a fit case for imposition of capital punishment. 41 31. Again, in the case of Surja Ram v. State of Rajasthan [(1996) 6 SCC 271], this Court affirmed the death sentence awarded by the High Court primarily taking into consideration that there was no provocation and the manner in which the crime was committed was brutal. Noticing that the Court has to award a punishment which is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also to the rights of the victims of the crime to have the assailant appropriately punished and the society's reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. The Court further held as under:- "18. After giving our anxious consideration to the facts and circumstances of the case, it appears to us that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California that no formula of a foolproof nature is possible that would provide 42 a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished." 32. This Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4 SCC 434], B.A. Umesh v. Registrar General, High Court of Karnataka [(2011) 3 SCC 85], State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254] and Atbir v. Government of NCT of Delhi [(2010) 9 SCC 1] had confirmed the death sentence awarded by the High Courts for different reasons after applying the principles enunciated in one or more afore-referred judgments. 33. Now, we may notice the cases which were relied upon by the learned counsel appearing for the appellants and wherein this Court had declined to confirm the imposition of capital punishment treating them not to be the rarest of rare cases. 34. In Ronny @ Ronald James Alwaris Etc. v. State of Maharashtra [(1998) 3 SCC 625], the Court while relying upon the judgment of 43 this Court in the case of Allauddin Mian & Ors. v. State of Bihar [(1989) 3 SCC 5], held that the choice of the death sentence has to be made only in the `rarest of rare' cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society. The Court also noticed the above-stated principle that the Court should ordinarily impose a lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only. The Court, while considering the cumulative effect of all the factors such as the offences not committed under the influence of extreme mental or emotional disturbance and the fact that the accused were young and the possibility of their reformation and rehabilitation could not be ruled out, converted death sentence into life imprisonment. 35. Similarly, in the case of Bantu @ Naresh Giri v. State of M.P. [(2001) 9 SCC 615] while dealing with the case of rape and murder of a six year old girl, this Court found that the case was not one of the `rarest of rare' cases. The Court noticed that, accused was less than 22 years at the time of commission of the offence, there were 44 no injuries on the body of the deceased and the death probably occurred as a result of gagging of the nostril by the accused. Thus, the Court while noticing that the crime was heinous, commuted the sentence of death to one of life imprisonment. 36. The above judgments provide us with the dicta of the Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances. 37. Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death alone should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while `death' would be the exception. The term `rarest of rare' case which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law 45 contemplates recording of special reasons and, therefore, the expression `special' has to be given a definite meaning and connotation. `Special reasons' in contra-distinction to `reasons' simplicitor conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. 38. Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan Singh (supra) and Machhi Singh (supra), it will be useful to re-state the stated principles while also bringing them in consonance, with the recent judgments. 39. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the `aggravating circumstances' while the other being the `mitigating circumstances'. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for 46 the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Cr.P.C. 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. 47 (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 Cr.P.C. 48 (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. Mitigating Circumstances : (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or 49 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 behavior 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 behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 50 (6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained 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. 40. While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. 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. 51 (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 considerations. (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. 41. Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to 52 state it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties. 42. The Court then would draw a balance-sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of `just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the `doctrine of proportionality' has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large. 53 43. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death. 44. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of `rarest of rare' cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the `rarest of rare' cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence. 45. Guided by the above principles, now, we shall proceed to deal with the contentions raised on behalf of the appellants that the present case is not one of the `rarest of rare' cases where the Court should find that imposition of life imprisonment would be entirely inadequate, even if the accused are held guilty of the offences charged. 54 46. We have already held that all the accused in the present appeals are guilty of the offences under Sections 376(2)(g) and 302 read with Section 34 IPC. On the question of quantum of sentence, the argument raised on behalf of the appellants is that all the accused were of young age at the time of commission of the crime, i.e. 21 to 31 years of age. They had no intention to kill the deceased and it was co-accidental that the death of the deceased occurred. Even if the accused are held guilty for the offences under Sections 376(2)(g) and 302 IPC, still it is not the `rarest of rare' case which would justify imposition of capital punishment, particularly in the facts and circumstances of the case. 47. To the contra, the learned counsel for the State has contended that the crime has been committed brutally. Accused-Ranjeet, being the brother-in-law of the deceased owed a duty to protect rather than expose her to such sexual assault and death, along with his friends. The manner in which the crime has been committed and the attendant circumstances fully justify imposition of death sentence upon the accused. The crime is heinous and has been committed brutally, without caring for the future of the two 55 infants of the deceased, who were sleeping by her side at the time of the crime. There cannot be two opinions that the offence committed by the appellants is very heinous and all of them have taken advantage of the helplessness of a mother of two infants at that odd hour of the night and in the absence of her husband. 48. There are certain circumstances, which if taken collectively, would indicate that it is not a case where the Court would inevitably arrive at only one conclusion, and no other, that imposition of death penalty is the only punishment that would serve the ends of justice. Firstly, the age of all the appellants is one of the relevant considerations before the Court. Secondly, according to PW1, Indrajeet, the deceased Rajkumari was his mistress and he had not married her, though he had two children with her. According to him, she was earlier married to one Bhupendra and he was not maintaining good relations with the said Bhupendra on account of his living with the deceased. This may have been a matter of some concern for the family, including Ranjeet, the brother of PW1. Thirdly, it has come in evidence that during investigation, the Investigating Officer recovered a piece of saree from the place of 56 occurrence, which was blood-stained. According to the statement of the PW7, Dr. Shila Saha, there were external injuries on the body of the deceased. Petechial hemorrhage was present in the left and right lungs. Blood mixed with froth was flowing out from the mouth of the deceased which was indicative of the possibility of the accused persons having gagged her mouth with the piece of the saree while committing rape upon her. Thus, the possibility of death of the deceased occurring co-accidentally as a result of this act committed on her by the accused cannot be ruled out. In similar circumstances, in the case of Bantu @ Naresh Giri (supra) (supra), this Court took the view that it was not a death caused intentionally, despite the fact that it was a case of rape being committed on a minor girl. Lastly, there is no attempt made by the prosecution to prove on record that these accused are criminals or are incapable of being reformed even if given a chance to improve themselves. While relying upon the judgment of this Court in the case of Goraksha Ambaji Adsul (supra), the contention raised on behalf of the accused is that, it is not a case where no other alternative is available with the Court except to award death sentence to the accused and that they are likely to prove a menace 57 to the society. It is further stated that the statement of the sole witness is not credible as he himself fell within the range of suspicion and a number of other witnesses had turned hostile. There are contradictions and discrepancies in the statements of the witnesses. The accused are neither previous convicts nor involved in any other crime. Thus, given a chance, they are capable of being reformed and be law-abiding citizens. 49. Having dealt with these contentions at some length in the earlier part of the judgment, we do not consider it necessary to again deliberate on these questions. Suffices it to note that the accused are guilty of the offences for which they were charged. It is correct that the possibility of their being reformed cannot be ruled out. The Court has to consider various parameters afore-stated and balance the mitigating circumstances against the need for imposition of capital punishment. The factors to be considered could be different than the mitigating circumstances. While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring 58 accidently and the possibility of the accused reforming themselves, they cannot be termed as `social menace'. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust, but it cannot be held with certainty that this case falls in the `rarest of rare' cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate. 50. Accordingly, while commuting the sentence of death to that for life imprisonment (21 years), we partially allow their appeals only with regard to the quantum of sentence. ..................................,J. [A.K. Patnaik] ..................................,J. [Swatanter Kumar] New Delhi; February 28, 2012. 59

where the husband killed his wife and children as the wife was having talks with one third person. out of rage, he killed all and he tried to kill himself by the same knife and went to commit suicide also. he gave himself an FIR. He is the great looser. Requires no death penalty as it is not rarest of rare case . Dealth penalty converted in to life imprisonment for 21 years by Apex court.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.113-114 OF 2010 Brajendrasingh ... Appellant Versus State of Madhya Pradesh ... Respondent J U D G M E N T Swatanter Kumar, J. 1. The present appeals are directed against the judgment of the High Court of Madhya Pradesh, Bench at Indore, confirming the judgment of conviction and order of sentence of imposition of extreme penalty of death by the Trial Court. 2. The disaster that can flow from unchastity of a woman and the suspicions of a man upon the character of his wife cannot be more pathetically stated than the facts emerging from the present case. 1 As per the case of the prosecution, a man suspecting his wife of having illicit relations with his neighbor, killed his three young children, namely, Varsha, Lokesh and Mayank, who were asleep, sprinkled kerosene oil on his wife and put her on fire. However, when called upon to make a statement under Section 313 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the accused rendered the following explanation : "There was illicit relationship between my wife, the deceased Aradhna and Liladhar, when on 27.02.2005 I came from the factory, at that time it was 11.00 - 11.30 O'clock at night, there was no fixed time coming and going from the factory. When I came to my house the door of the house was opened. My wife was not at the house and then I searched her here and there. I heard her voice in the house of Liladhar Tiwari, the voice of male was also coming. My children were sleeping in my house, when I shouted loudly and I hit the door of Liladhar Tiwari with foot, then the door opened then I saw that both were naked and then she came out then I threw her on the ground after catching her hair and then she started shouted and speaking cohabitedly and said that she would go with Tiwari Jee only and if I would stop her from meeting Tiwari Jee then she would kill the children and she would kill me also. Thus quarrel went on. After some time she came with knife from the kitchen and she inflicted injuries in the necks of the three children. I tried to snatch the knife from her and the in that process in my 2 neck also the knife inflicted injury and then after taking that very knife I inflicted injury on the neck of deceased because she had inflicted the injury in the necks of children, Aradhna fell down on the back after being hit by the knife. My mental balance was upset and I put the kerosene oil kept there at myself, that some of that kerosene oil fell on me and some on the deceased, I was standing nearby. I ignited the match stick and at first I burnt myself and the match stick fell on the deceased, due to which she was also burnt and then in the burning condition after extinguishing the fire taking the knife I went towards the Bye-pass. After some time, I saw that one truck was coming, I was going to commit suicide under that truck but in the meantime police came there and the police brought me to the police station. I got the report written but as I had said in the report it was not written like that. I have not killed the children." 3. From the above statement, it is clear that the accused neither disputes the attempt to murder, nor the consequent death of his three young children and wife, Aradhna. What this Court has to examine, with reference to the evidence on record, is as to which of the two versions is correct and stands established beyond reasonable doubt, i.e., whether the case of the prosecution is to be accepted as proved beyond reasonable probability or whether the defence of the appellant is to be accepted by the Court. 3 4. Before we dwell upon the issues before us, it will be appropriate to refer to the facts giving rise to the present appeal, as stated by the prosecution. The facts, as given, as well as the conduct of the appellant are somewhat strange in the present case as the appellant who is accused of this heinous crime, is himself the informant of the incident. Laconically, the factual matrix of the case that emerges from the record is that the appellant had lodged a report in respect of the commission of the crime at the Police Station, Industrial Area, District Dewas in the night intervening the 27/28th, February, 2005 at about 2.00 a.m. which was recorded by Sub-Inspector Mohan Singh Maurya, PW16. The appellant was serving in White Star Milk Product Factory, Dewas. Besides his wife and three young children, his brother-in-law was also residing with him who was serving in Sudarshan Factory. One Liladhar Tiwari was the neighbour of the appellant. In fact, both the appellant and Liladhar Tiwari stayed in two different rooms of the same flat, i.e., LIG Flat No.225, Vikas Nagar, Dewas which they had taken on rent from PW3, Smt. Kamal Kunwar. Smt. Aradhna, the deceased wife of the appellant, used to talk to Liladhar, to which the appellant had serious objections. He had forbidden her from doing 4 so. Again, on the fateful day, he had allegedly stopped her from talking to Liladhar Tiwari, but she retorted that she would die and poured kerosene oil on her person and then put herself on fire. The appellant claims to have made an effort to extinguish the fire. However, being under the impression that she was dying, he also caused injuries to his wife by a knife (chhuri) and killed her. The appellant also suffered burn injuries in his attempt to extinguish the fire. After killing his wife, he was concerned about what would be the fate of their children, who will now have to grow up without their mother. Thus, he killed them by the same process, i.e., inflicting injuries by knife to the throat of the children. After committing the murder of his own family members, he also tried to commit suicide by injuring his neck but could not succeed in his attempt. The incident is said to have occurred at 2330 hours on the night of 27th February, 2005. 5. PW4, Sri Ram Verma, Head Constable, was on patrolling duty and he, along with another constable, was patrolling by road by a Government vehicle bearing registration No. MP 03 - 5492 in the night between half past one and two O'clock. They saw a person on the bye-pass road. They stopped the said vehicle and interrogated 5 him. Then they came to know that he was Brajendrasingh, the appellant. The appellant narrated the entire incident to the Police and informed them that he wanted to commit suicide. The Police Officers stopped him from doing so and brought him to the Police Station, Industrial Area in the same Government vehicle. Upon reaching the Police Station, the appellant lodged the report at 2.00 a.m. narrating the above facts to the Police. 6. On the basis of the statement of the appellant, First Information Report, Exhibit P27, under Section 302 of the Indian Penal Code (IPC), was registered on 27/28th February, 2005 at about 2.00 a.m. PW16, Mohan Singh Maurya, prepared the inquest report Exhibits P2 to P5 and the bodies of the deceased persons were taken into custody. The dead bodies were taken to the hospital for post mortem which was performed by Dr. Shakir Ali, PW12 and the post mortem reports were recorded as Exhibits P12 to P15. The doctor opined that the injuries on the person of the deceased could have been caused by a knife. The appellant was also examined medically by Dr. Hari Singh Rana, PW14, who issued his medico-legal certificate report Exhibit P18. The clothes of the deceased persons were seized. The photographs of the spot were 6 taken and the CDs of photography were seized vide Exhibits P7 to I/9. Blood stained and controlled earth (P4) was taken into custody vide Exhibit P10, knife, shirt and pant of the appellant were seized vide Exhibit P13. Seized articles were sent to the Forensic Science Laboratory, Sagar for chemical examination from which the reports Exhibits P22, P24 and P26 were received. As per the post mortem report of deceased Aradhna, Exhibit P12, the medical expert found 36 per cent burn injuries on her chest and abdomen. The Investigating Officer recorded the statement of 16 prosecution witnesses and after completing the investigation in all respects, he submitted the charge sheet before the Court. The accused was committed to the Court of Sessions as the offences were exclusively triable by the Court of Sessions being an offence under Sections 302 and 309 IPC. The accused stood trial and made a statement under Section 313 Cr.P.C. giving his stand and explanation as afore-indicated. The learned Trial Court, vide its judgment dated 15th June, 2007, acquitted the accused for the offence under Section 309 IPC. However, while returning a finding of being guilty for the offence under Section 302 IPC, the Court held that it does not appear to be appropriate to award any sentence less than death 7 sentence to the appellant and, therefore, imposed upon him the extreme punishment of death under Section 302 IPC. This judgment of the Trial Court was challenged before the High Court which affirmed the judgment of conviction and order of sentence of death. Against these concurrent findings, the appellant has filed the present appeals. 7. We may notice here that against the acquittal of the appellant under Section 309 IPC, no appeal was preferred by the State, either before the High Court or before this Court. 8. The learned counsel appearing for the appellant has primarily raised the following two contentions : (i) The courts have failed to appreciate the evidence in its correct perspective. The accused had stated that his wife had murdered the three children and that he had only inflicted injuries on her body under a belief that she was not going to survive. He had no intention to kill her. Thus, the applicant cannot be punished for murder of the entire family. It is also the contention of the appellant that the prosecution has not been able to prove its case beyond reasonable doubt. 8 (ii) The imposition of extreme penalty of death was not called for in the facts and circumstances of the present case. The incident even if, as stated by the prosecution, assumed to be correct, still it was an offence committed on extreme provocation and at the spur of the moment without any intent to kill any person. 9. Neither the death of three children nor that of his wife Aradhna is disputed and/or practically admitted by the appellant in his statement under Section 313 Cr.P.C. He has also admitted that he had inflicted injuries on the person of the deceased Aradhna with a knife. Only a part of his statement under Section 313 Cr.P.C. does not corroborate the prosecution evidence. According to the case of the prosecution, the appellant had inflicted injuries resulting in the death of three minor children and then he had poured the kerosene oil upon the deceased Aradhna as well as inflicted injury on her throat, whereas according to the appellant, it was the deceased Aradhna who had inflicted injuries upon their three minor children and poured kerosene on herself and thereafter set herself on fire. 9 10. It is a settled principle of law that the statement of an accused under Section 313 Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313 Cr.P.C. simplicitor normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced. We may refer to a recent judgment of this Court in the case of Ramnaresh & Ors. v. State of Chhattisgarh, (being pronounced today) wherein this Court held as under : "In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these 10 protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh [(2011) 8 SCC 300]. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law." 11. Now, all that this Court is called upon to decide in the present case is that between the varying versions put forward by the prosecution and the accused which one is correct and has been proved in accordance with law. 11 12. As we have already noticed in the narration of facts above that the FIR was recorded by Sub-Inspector Mohan Singh Maurya, PW16 based on the statement of the appellant itself, made in the Police Station. This cannot be treated, in law and in fact, as a confessional statement made by the accused and it would certainly attain its admissibility in evidence as an FIR recorded by the competent officer in accordance with law. 13. There is no doubt that there is no eye witness in this case despite the fact that it occurred in an LIG flat and obviously some people must be living around that flat. However, to complete the chain of events and to prove the version given by the appellant in the FIR, it examined a number of witnesses. PW2 is the brother-in- law of the appellant and brother of the deceased Aradhna. He clearly stated that Brajendrasingh had been married to Aradhna 12-13 years before the date on which his statement was recorded and the couple had three children. He was staying with his sister and on 27th February, 2005, he had been in the house of the accused during the day and in the evening he left for the house of his brother Kamla Singh who was staying at Joshipura whereafter he went to Sudarshan Factory near Dewas to work. At about 2.30 12 a.m. in the night, while he was in the factory, he received a phone call from the Police Station informing him that his sister, nephews and niece had been murdered. He came back and went to the Police Station where he found Brajendrasingh, the accused was also present. 14. PW3, Smt. Kamal Kunwar was examined to prove that the appellant was the tenant at a monthly rent of Rs.650/- and two rooms had been given to him on rent. According to her, one Liladhar Tiwari had also been residing in one room in the same building on rent. 15. PW5, Shobhna is again the sister of the deceased Aradhna. Her statement was similar to that of PW2. According to her, somebody from Vikas Nagar had come and told her that an altercation had taken place between Aradhna and the accused. He asked her to go there. After she reached near the house of the accused, she met two boys who told her that somebody had killed Aradhna and her three children. Upon hearing this, she fell unconscious. This witness was declared hostile and was subjected to cross-examination by the prosecution. Witness PW7, Veerendra 13 Singh, who is the husband of PW5 and brother of the present appellant, also made a similar statement. PW10, Liladhar Tiwari, was also examined and he stated that he was residing in the same building in one room. When his children and wife used to go to village, he used to live alone in that room. According to him, the Police had come to his house at about 2.00 O'clock in the night, knocked at his door and informed him about the murder. He stated that wife of the accused used to inquire from him whenever he came late, "brother today you have come late" and I used to reply that because of heavy work I was late. PW12 is Dr. Shakir Ali who had performed post mortem examination upon the body of Aradhna and noticed various injuries on her body. According to him, both the lungs were having less blood and two portions of the heart were empty of blood. The upside down Carroty nerve was incised. The membrane of the intestines was healthy. The liver, spleen and kidney all were blood less and all the injuries were ante mortem and fatal. According to the doctor, the cause of death was shock which had resulted from excessive hemorrhage. Post mortem upon the other dead bodies was also performed by this witness and the cause of death was common. The incised wound of Lokesh was 1" x =" x 14 2" below the jaw which resulted in excessive bleeding and death. PW16 is the Sub-Inspector in the Police Station, Industrial Area, Dewas. He, as already noticed, had recorded his statement at the Police Station and had conducted the investigation. He had prepared the site plan and seized the knife Exhibit P12. It is with the help of these witnesses that the prosecution has attempted to prove its case but the foundation of this case was laid on the basis of the information given by the appellant-accused himself. The statements of these witnesses have to be examined in light of the FIR, Exhibit P27, as well as the statement of the accused made under Section 313 Cr.P.C. But for Exhibit P27, it would have been difficult for the prosecution to demonstrate as to who was responsible for committing the murder of the three young children. To this extent, it is a case purely of circumstantial evidence. 16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from 15 which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the 16 accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. [Ref. Dhananajoy Chatterjee vs. State of W.B. [JT 1994 (1) SC 33]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC 713]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra [(AIR 2009 SC 56]. 17. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility. 18. The circumstances in the present case, which have been proved, are that : (1) The couple used to quarrel on the issue of deceased Aradhna speaking to Liladhar Tiwari even after the appellant having restrained her from doing so; (2) The three children were sleeping at the time of occurrence; 17 (3) The injury on their necks just below the jaw was caused by a knife which was recovered and exhibited as article `L' in accordance with law. (4) It was mentioned in Doctor's report that there were number of burn injuries on the body of Aradhna and the injuries on the throats of all the deceased. The cause of death was common to all, i.e., excessive hemorrhage. 19. These circumstantial evidences read with the statements of the prosecution witnesses and the statement of the appellant himself prove one fact without doubt, i.e., the accused had certainly murdered his wife. His stand is that since he believed that his wife may not survive the burn injuries, therefore, he killed her by inflicting the injury with knife on her throat similar to the one inflicted upon the throats of the three young children. Thus, there is no escape for the appellant from conviction for the offence under Section 302 IPC vis-`-vis the murder of his wife Aradhna. 20. Now, coming to the death of the children, according to the prosecution, they had been murdered by the appellant while according to the appellant, they had been murdered by his wife 18 Aradhna. One very abnormal conduct on the part of the appellant comes to light from the evidence on record that a father, seeing his wife killing his children, would certainly have prevented the death of at least two out of the three children. He could have overpowered his wife and could even have prevented the murder of all the three children. This abnormal conduct of the appellant renders his defence unbelievable and untrustworthy. Upon appreciation of the evidence on record, we are more inclined to accept the story of the prosecution though it is primarily based on circumstantial evidence and there is no witness to give optical happening of events. Once these circumstances have been proved and the irresistible conclusion points to the guilt of the accused, the accused has to be held guilty of the offences. Normally, the injuries like the ones inflicted in the present case would not lead to instantaneous death. The excessive bleeding leading to death would be possible over a short period. The injured would struggle before he succumbs to such injury. As alleged by the accused, if the wife caused death of all the three children, he could have certainly prevented death of at least two of them. When the deceased inflicted such severe injuries on the throat of the sleeping child, the child would have got up, 19 there would have been commotion and disturbance in the room which would have provided enough opportunity to the appellant to protect his other two children. According to the prosecution, at that stage, none had suffered any injury. This unnatural conduct of the accused in not making an effort to protect the children and exhibiting helplessness creates a serious doubt and renders the entire case put forward by the defence as unreliable and of no credence. This abnormal conduct of exhibiting helplessness on the part of the appellant creates a serious doubt and entire case put forward by the defence loses its credibility. 21. The cumulative effect of the prosecution evidence is that the accused persisted with commission of the crime despite availability of an opportunity to check himself from indulging in such heinous crime. May be there was some provocation initially but nothing can justify his conduct. Whatever be the extent of his anger, revenge and temper, he still could have been kind to his own children and spared their life. He is expected to have overcome his doubts about the conduct of his wife, for the larger benefit of his own children. Though the appellant had stated that he lost his mind and did not know what he was doing, this excuse is not worthy of credence. 20 Admittedly, he was not ailing from any mental disorder or frustration. He was a person who was earning his livelihood by working hard. 22. Having appreciated the evidence on record, we have no hesitation in holding that the appellant is guilty of an offence under Section 302 IPC for murdering his wife and three minor children. He deserves to be punished accordingly. 23. Now, coming to the question of quantum of sentence, it is always appropriate for this Court to remind itself of the need for recording of special reasons, as contemplated under Section 354(3) Cr.P.C., where the Court proposes to award the extreme penalty of death to an accused. This leads us to place on record the principles governing exercise of such discretion which have been stated in a very recent judgment of this Bench in the case of Ramnaresh (supra) wherein the Court, after considering the entire law on the subject, recapitulated and enunciated the aggravating and mitigating circumstances as well as the principles that should guide the judicial discretion of the Court in such cases. This Court held as under : 21 "The above judgments provide us with the dicta of the Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances. Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while `death' would be the exception. The term `rarest of rare case' which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression `special' has to be given a definite meaning and connotation. `Special reasons' in contra-distinction to `reasons' simplicitor conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan Singh (supra) and 22 Machhi Singh (supra), it will be useful to re- state the stated principles while also bringing them in consonance, with the recent judgments. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the `aggravating circumstances' while the other being the `mitigating circumstance'. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Cr.P.C. 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 23 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 Cr.P.C. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 24 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. 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. 25 5. The circumstances which, in normal course of life, would render such a behavior 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 behavior 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 pre-ordained 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. While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. 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 26 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. Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties. The Court then would draw a balance- sheet of aggravating and mitigating 27 circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of `just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the `doctrine of proportionality' has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of `rarest of rare' cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the `rarest of rare' cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence." 28 24. First and the foremost, this Court has not only to examine whether the instant case falls under the category of `rarest of rare' cases but also whether any other sentence, except death penalty, would be inadequate in the facts and circumstances of the present case. 25. We have already held the appellant guilty of an offence under Section 302, IPC for committing the murder of his three children and the wife. All this happened in the spur of moment, but, of course, the incident must have continued for a while, during which period the deceased Aradhna received burn injuries as well as the fatal injury on the throat. All the three children received injuries with a knife similar to that of the deceased Aradhna. But one circumstance which cannot be ignored by this Court is that the prosecution witnesses have clearly stated that there was a rift between the couple on account of her talking to Liladhar Tiwari, the neighbor, PW10. Even if some credence is given to the statement made by the accused under Section 313 Cr.P.C. wherein he stated that he had seen the deceased and PW10 in a compromising position in the house of PW10, it also supports the allegation of the prosecution that there was rift between the husband and wife on 29 account of PW10. It is also clearly exhibited in the FIR (P27) that the accused had forbidden his wife from talking to PW10, which despite such warning she persisted with and, therefore, he had committed the murder of her wife along with the children. It will be useful to refer to the conduct of the accused prior to, at the time of and subsequent to the commission of the crime. Prior to the commission of the crime, none of the prosecution witnesses, including the immediate blood relations of the deceased, made any complaint about his behaviour or character. On the contrary, it is admitted that he used to prohibit Aradhna from speaking to PW10 about which she really did not bother. His conduct, either way, at the time of commission of the crime is unnatural and to some extent even unexpected. However, subsequent to the commission of the crime, he was in such a mental state that he wanted to commit the suicide and even inflicted injuries to his own throat and also went to the bye-pass road with the intention of committing suicide, where he was stopped by PW4, Head Constable and taken to the Police Station wherein he lodged the FIR Exhibit P27. In other words, he felt great remorse and was sorry for his acts. He informed the Police correctly about what he had done. 30 26. Still another mitigating circumstance is that as a result of the commission of the crime, the appellant himself is the greatest sufferer. He has lost his children, whom he had brought up for years and also his wife. Besides that, it was not a planned crime and also lacked motive. It was a crime which had been committed out of suspicion and frustration. The circumstances examined cumulatively would, to some extent, suggest the existence of a mental imbalance in the accused at the moment of committing the crime. It cannot be conceived much less accepted by any stretch of imagination that the accused was justified in committing the crime as he claims to have believed at that moment. 27. Considering the above aspects, we are of the considered view that it is not a case which falls in the category of `rarest of rare' cases where imposition of death sentence is imperative. It is also not a case where imposing any other sentence would not serve the ends of justice or would be entirely inadequate. 31 28. Once we draw the balance-sheet of aggravating and mitigating circumstances and examine them in the light of the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that this is not a case where this Court ought to impose the extreme penalty of death upon the accused. Therefore, while partially accepting the appeals only with regard to quantum of sentence, we commute the death sentence awarded to the accused to one of life imprisonment (21 years). ..................................,J. [A.K. Patnaik] ..................................,J. [Swatanter Kumar] New Delhi; February 28, 2012 32