JUDGMENT Bhawani Singh, J.—This murder reference has been submitted by the trial Judge for the confirmation of death sentence to which the accused has been sentenced in this case. Besides, the accused has also preferred separate appeal seeking his acquittal. Since both the matters arise out of the same judgment, they are being decided by a common judgment. The accused prayed for the appointment of a Lawyer to defend him in this case, so, looking to the seriousness of the case, Shri T. R. Chandel, a top criminal Lawyer of this Court, was requested to appear for the accused in his defence Shri T, R. Chandel has rendered valuable assistance and pleaded the case for the accused with industry and vehemence We record our appreciation for the assistance rendered by him in this case. 2. The prosecution case, briefly is that the accused was engaged as servant by Devi Dass (PW 1) ac his house in village Khanotu in Tehsil Rampur of District Shimia to attend to the house-hold and agricultural operations On 18-10-1989, only three children were in the house while he had left the house in the morning to catch a bus for Rampur Bushahr and his daughter Meena was working in the fields behind the kitchen of his house, thus, leaving Narvada (PW 2), Satya Prakash (deceased) and Jai Devi (deceased) in the house Narvada was serving meals to the deceased when the accused came there with axe concealed behind his back. He had muffled his face with handkerchief and he was in such a state of anger that he took out his watch (Ex. P-2) and hammered it with axe (Ex. P-O. Narvada sensed the approaching danger. Though frightened terribly, she succeeded in jumping out through the kitchen window. She saw the accused inflicting blows with kulhari (Ex. P-l) on Satya Prakash, who died instantaneously like hip sifter Jai Devi (15 years), who sustained fatal blows on her head with the same axe (Ex. P-l). 3 Loud shrieks raised by Narvada (PW 2) attracted Atma Ram and Devi Dass to the scene of occurrence but by this time, the accused had made good his escape. The children were found in a pool of blood that had oozed out of their bodies as a result of fatal axe injuries. 4. P-l). 3 Loud shrieks raised by Narvada (PW 2) attracted Atma Ram and Devi Dass to the scene of occurrence but by this time, the accused had made good his escape. The children were found in a pool of blood that had oozed out of their bodies as a result of fatal axe injuries. 4. Motive, according to the prosecution, was the non-payment of wages by Devi Dass (PW1) towards the work that may have been done by the accused The accused had also grumbled of being fed half-baked chapatis and then saying of Narvada that he would be given meals after the deceased children bad finished their meals since they were going to the school. 5. Devi Dass (PW 1) had got into the has when his sister Thakur Dassi (PW 3) shouted that the accused had killed Satya Parkash and Jai Devi Consequently, he left the bus and came back to his house where he found the bodies of Satya Prakash and Jai Devi inside his house. The kulhari (Ex P-l) and wrist watch (Ex. P-2) were lying on the spot. The incident was conveyed to the police, police station Rampur, by Sushma Devi (PW 4) when Atma Ram (PW 5; who came to her house, wanted it to be conveyed through her telephone. On the other hand, Devi Dass, Dwarka Dass and Darshan Dass proceeded to the police station for lodging the report. On the way, they met the S. H. O, who recorded his statement (Ex. PA). The police started the investigation aad took into possession the weapon of offence, vide memo (Ex. PE), kulhari (Ex. P-I) and wrist-watch ^Ex. P-2). It also collected blood from the scene of occurrence, one jacket of Satya Parkash, shirt, shalwar, coat and Dhatu of Jai Devi. The pair of chapal (Ex. P-9 , belonging to the accused, was also collected. It also prepared inquest proceedings (Ex. PH and Ex PS). After completing the investigation and collecting the necessary evidence, the accused was challenged for having killed Satya Parkash and Jai Devi, the two children of Devi Dass (PW 1), in the morning of 18-10-1989. 6. The accused has denied the commission of this offence. He complains of false implication. No specific plea in defence has been taken nor any witness examined in defence. The trial Judge has found the accused responsible for murdering these children with axe (Ex. 6. The accused has denied the commission of this offence. He complains of false implication. No specific plea in defence has been taken nor any witness examined in defence. The trial Judge has found the accused responsible for murdering these children with axe (Ex. P-l) and looking to the seriousness of the crime and the manner of its commission against two innocent undefended children in the absence of their father, case for awarding death penalty has been suggested for confirmation. 7. During the course of arguments before us, the learned Counsel for the State strenuously argued for the confirmation of death sentence imposed upon the accused and with this end in view, exhaustive reference was made to the evidence on the record and certain pronouncements wherein this kind of punishment was awarded. On the other hand, Shri T, R. Chandel made serious efforts to assail the judgment and sought the acquittal of the accused and, in the alternative, an argument was also raised mat in the event of the conviction being up-held, the facts and circumstances of the case do not justify the confirmation of death sentence and at the most the accused can be awarded the sentence of imprisonment for life. 8. In order to examine the aforesaid rival submissions of the learned Counsel for the parties, it is necessary to examine, assess and analyse the material aspects of the prosecution evidence in this case to decide whether the conviction and the sentence in this case deserve to be maintained or call for any change. 9. Devi Dass (PW I) is the father of the deceased, Satya Parkash and Jai Devi. He states that on 18-10-1989, when he was going to Rampur through a bus from Ladanala, his sister Thakur Dassi (PW 3) came running and shouted that the accused had killed Satya Parkash and Jai Devi. He came home alongwith her and saw the bodies of his son and daughter inside his house and weapon of offence (kulhara) and a wrist-watch of the accused lying at the spot. The accused, who was his servant, had run away by that time. He was a small contractor in the Public Works Department and in order to execute the contracted works, he had engaged accused Dhan Bahadur, Prem Singh, Pan Bahadur, Lal Singh etc. The labourers were paid their wages through Prem Singh. The accused, who was his servant, had run away by that time. He was a small contractor in the Public Works Department and in order to execute the contracted works, he had engaged accused Dhan Bahadur, Prem Singh, Pan Bahadur, Lal Singh etc. The labourers were paid their wages through Prem Singh. A dispute arose between these labourers and the accused claimed that he had not been paid wages out of the amount which he had handed over to Prem Singh. He told the accused that the payment of his wages would be secured to him on the arrival of Prem Singh. He demanded the money about eight days before the commission of the offence. 10. On his arrival in his house, Narvada told him that the accused had muffled his face with handkerchief and had concealed the axe behind his back while holding it with his hands. He was also told that the accused took out his wrist-watch and started hammering it with the axe he was holding. Upon this, Narvada got frightened and she leaped out from the kitchen window but Satya Parkash and Jai Devi remained inside the kitchen. They were taking their meals before leaving for the school but they were done to death by the accused Narvada shouted and raised hue and cry that the accused had hatcheted her brother and sister to death in the kitchen whereafter Atma Ram and Devi Dass came to the spot. He found that Satya Parkash had axe injuries as a result of which he died instantaneously like Jai Devi He went to report the matter to the police alongwith Dwarka Dass and lshwar Dass His statement (Ex. PA) was recorded by SHO, who met him on the way. The police came to the spot for investigation and took into possession the weapon of offence, the wrist-watch, jacket, shirt, shalnar, coat, Dhatu, some quantity of blood lifted from the scene of occurrence and a pair of chapal of the accused. The police also prepared inquest reports (Ex. PH and Ex. PJ). The accused committed the crime under the hallucination that the witness had eaten away his wages and had not paid his dues and as such he cultivated a motive to commit this heinous crime. The police also prepared inquest reports (Ex. PH and Ex. PJ). The accused committed the crime under the hallucination that the witness had eaten away his wages and had not paid his dues and as such he cultivated a motive to commit this heinous crime. The wages of all the gorkhas, including the accused, were paid by him to their head Prem Singh who was to distribute the same amongst them and the accused was present when his wages were paid through Prem Singh but admits that this fact was not staled to the police when his statement was recorded under section 16i of the Code of Criminal Procedure, but his statement that the wages were paid to the accused through Prem Singh is correct. The accused had worked for about 15 days in the construction of Taklesh-Kumsu Kuhal. 11. From out of the 12/13 houses in his village, the houses of Atma Rain, Devi Dass and Sivi Ram are adjacent to his house like that of Kundan Lal, while the house of Dwarka Dass is at a distance of about 800 metres from his house. It hardly takes 15/20 seconds to reach his kitchen from the houses of Atma Ram and Devi Dass. The agricultural operations were carried out by the members of his family and the servant and at the relevant time, the servant was the accused. When required, he used to deploy his labourers, meant for the construction work of Public Works Department, to complete the agricultural operations. Prem Singhs labour was engaged by him ever since August of the year of occurrence, though at the relevant time Prem Singh and Mohan Singh were deployed at the work at Rampur, 16 kilometres away from his house He was told by Laiq Ram (PW 10) that the accused was seen running down towards the nallah. He denies that the accused has been involved falsely and on suspicion. He has identified all the aforesaid articles recovered by the police 12. Narvada (PW 2) is the most important witness in the prosecution case. She is the only eye-witness to the occurrence. She states that on the day of occurrence, she was serving meals to the deceased who were to go to their school. Her father had left for Rampur at about 6a.m while her sister Meena had gone to the fields. Narvada (PW 2) is the most important witness in the prosecution case. She is the only eye-witness to the occurrence. She states that on the day of occurrence, she was serving meals to the deceased who were to go to their school. Her father had left for Rampur at about 6a.m while her sister Meena had gone to the fields. Her aged grand-mother (95) was sleeping in her room The accused was doing manual work in their house as servant He demanded food from her She told him that he would be served as soon as the school-going children had taken their meals. The accused went out, fetched Kulhari, concealed it just behind his back, he muffled his face with the handkerchief, came near her in the kitchen, took out his wrist-watch and started hammering it with the Kulhari, He brandished the Kulhari at her, whereafter she got frightened and jumped out of the window. She peeped through the window and noticed the accused inflicting the Kulhari blows on her brother and sister. They received numerous injuries and died instantaneously. She raised loud shrieks, Chachu-Chachu Gorkhe Ne Mere Bhai Ko Maar Dia Hai whereupon her uncles Devi Dass and Atma Ram reached the spot. The accused fled away after the commission of the crime, Other villagers also gathered there The accused had also grumbled about the half-baked chap at is, that may have been served to him His grouse was that her father did not pay him his wages Her father returned aiongwith Thakur Dassi at about is 8 a. m. She identified the axe, belonging to them, with which her brother and sister had been killed. She identified the clothes of the deceased as well as the watch, owned by the accused, and the chapal (Ex R-9) She narrated the whole occurrence to Atma Ram and Devi Dass. The accused also used to work in the construction work that was being carried on by her father in the Public Works Department, The accused had demanded money from her father but he was told that the entire matter would be settled in case he brought another Gorkha who had taken money from her father. This kind of talk had taken place between her father and the accused on 17-iO-lv89. She has denied the suggestion that the deceased were not axed by the accused. This kind of talk had taken place between her father and the accused on 17-iO-lv89. She has denied the suggestion that the deceased were not axed by the accused. According to her, the accused took hardly a few seconds to finish the deceased. 13. Thakur Dassi (PW3) in her statement says that she heard her daughter Shaota Devis shouting that Satya Parkash and Jai Devi had been killed as a result of which she stopped her brother Devi Dass, who was going to Rampur by bus. As a result of it, he got out of the bus and rushed to the house where they found the dead-bodies of the deceased lying in a pool of blood and the Kulhari was also there near the dead-bodies. The accused was working as a servant with Devi Dass. 14. Sushma Devi (PW 4) was contacted by Atma Ram (PW 5) at 8 a. m. on 18-10-1989 to inform the police at Rampur through her telephone about the commission of the crime. 15. Atma Ram (PW 5) heard the cries of Narvada that Satya Parkash and Jai Devi were being hatchet by the accused. He rushed to the spot alongwith Devi Dass and found the deceased lying dead in a pool of blood. The accused had run away, Kulhari was lying near the dead-bodies. He rushed to the house of Dwarka Dass from where he sent a telephonic message through Sushma (PW 4) to the police at Rampur. He identified the Kulhari (Ex. P-l) that was lying near the dead-bodies- The accused was employed as a servant by Devi Dass, though he used to work at the house intermittently. He did not notice any other object except Kulhari (Ex. P.-l) at the scene of occurrence since he was stunned on account of the dead-bodies lying there. He denies the suggestion that Narvada did not name the accused responsible for the crime. 16. A. S. I. Prabhu Dass (PW 7) partly investigated the case. He got the verification of guarantee card in relation to the wrist-watch (Ex P-2) which the accused had purchased from Bhopal Singh at Vikashnagar (U. P.), whose shop was pointed out by the accused and Bhopal Singh also identified him to be the purchaser of the watch. 17. 16. A. S. I. Prabhu Dass (PW 7) partly investigated the case. He got the verification of guarantee card in relation to the wrist-watch (Ex P-2) which the accused had purchased from Bhopal Singh at Vikashnagar (U. P.), whose shop was pointed out by the accused and Bhopal Singh also identified him to be the purchaser of the watch. 17. Smt. Shanti Devi (PW 9) states that she heard the cries that the accused had killed the children of Devi Dass These cries were heard after she noticed the accused running away towards the khad at a distance of about 25 feet from her. Consequently, she called her mother Thakur Dassi (PW 3) and requested her not to go to Rampur and deliver the message to Devi Dass. On being questioned by her why he was running, the accused did not respond Atma Ram and Devi Dass also chased the accused but he could not be apprehended. 18. Laiq Ram (PW 10) also noticed the accused running down at a point 15/20 feet away from him. He crossed the khad and entered the jungle. The accused while crossing the khad got his pyjama drenched, so, he abandoned it on the other side of the hill. In the meantime, he also heard a noise from the house of Devi Dass, The villagers chased the accused but he could not be nabbed The chapals of the accused (Ex P-9) were taken into possession by the police vide recovery memo. (Ex. PG). 19. Darshan Dass (PW 12) was also associated by the police in the investigation of this case and he has proved number of recoveries made by the police like Thisu Ram (PW 13). Thisu Ram (PW 13) and K. C. Chauhan (PW 15) are also witnesses to the apprehension of the accused at Gaura, and his arrest by the police. Thisu Rain (PW 13) is also a witness to the recovery of blanket (Ex. P-11), owned by Birja Nand Negi (PW 20), which had been stolen by the accused. 20. S. I. Hukam Singh (PW 19) also investigated this case. He received the telephonic message about the occurrence from Sushma (PW 4) at 7 50 a. m. that the accused had committed murder in village Khanotu He recorded rapat roznamcha (PW 19/A) regarding this occurrence and proceeded to the spot where he met Devi Dass. He recorded his statement (Ex. S. I. Hukam Singh (PW 19) also investigated this case. He received the telephonic message about the occurrence from Sushma (PW 4) at 7 50 a. m. that the accused had committed murder in village Khanotu He recorded rapat roznamcha (PW 19/A) regarding this occurrence and proceeded to the spot where he met Devi Dass. He recorded his statement (Ex. PA) under section 154 of the Code of Criminal Procedure and got it signed by him. Thereafter it was sect to the police station through Constable Mohi Ram for the registration of First Information Report (Ex PW 16/A) He went to the spot where he noticed two bodies of the children lying on the floor of that apartment. They had sustained injuries to the head and neck with the axe that was lying nearby. One broken watch was also lying there. He took into possession the axe, the watch, coat, one Dhatu and some blood through recovery memos in the presence of Dwarka Dass and Darshan Dass. He took certain other articles from the spot. He also prepared inquest reports (Ex PH and Ex. PJ) Spot map (Ex. PW 19/B) was also prepared by him and photographs (Ex. P.-15 to Ex. P.-24) were got through Ram Singh, Photographer. The bodies were sent to civil hospital, Rampur, for postmortem examination. The statements of certain witnesses were recorded. The pyjama of the accused was also found from the bank-side of the khad that was crossed by the accused. He has given account of all steps taken by him during the course of investigation of the case and then SHO ., Devindar Singh {PW 21) has also proved his part of the investigation and nothing adverse has come out from their statements during the course of their cross-examination by the Counsel for the accused. 21. Bhopal Singh (PW 11) has proved the issuance of guarantee card (Ex. PW 11 /A) to the accused when the watch (Ex. P-2) was purchased. 22. Finally, we may refer to the medical evidence in this case Dr. B. K Bhardwaj (PW 8) conducted the postmortem examination of the deceased on October 19, 1989. He found the following injuries on the body of Satya Parkash :— "Injury No. 1: There was an incised wound on the temporal region, 6 cm. above left Tragus of ear (9 cm. B. K Bhardwaj (PW 8) conducted the postmortem examination of the deceased on October 19, 1989. He found the following injuries on the body of Satya Parkash :— "Injury No. 1: There was an incised wound on the temporal region, 6 cm. above left Tragus of ear (9 cm. x 3—2 cm,) with underlying line bones badly fragmented bone chip 3 cm X 2 cm. lying loose, underlying brain tissue leaking out of the wound which is badly lacerated. The whole area filled with clotted blood. Injury No. 2 : Outting across the middle of the left ear from front to back is an incised wound 6 cm. X2 cm, bone deep. Crushing and tearing off the underlying bone and great vessels of the neck, clotted blood present. 3. 3 cm. below the injury No. 2 is a wound which has incised wound at both ends and a brown thin bruish between, it is 7 cm. long (AB+C) b is 2 cm. X0.5 cm. skin deep. A is 3 cm.X 1 cm. at the base and half cm. at the apex. The incised wound is bone deep. Mendible is fractured. Injuries to the scalp and the skull bones have been described already. Membrance and underlying brain tissue badly lacerated in the area below the injury No. 1. Haemorrhage present. Except for the three injuries detailed above, there was no injury on his bands, upper limbs, front and back of chest, abdomen and both lower limbs. There was no mark of ligature, The stomach contain undigested food and the chambers of the heart were empty." 23. In the opinion of the doctor, the deceased (Satya Parkash) had died due to brutal external and internal injury to skull, brain, Deck-vessels, leading to shock and death. The death was instantaneous and the duration between the death and postmortem was within 24 to 36 hours. Injuries No. 1 to 3, above, could be caused with a weapon like an axe (Ex. R-l). 24. Dr, B. K. Bhardwaj (PW 8) found the following injuries on the body of Jai Devi :— "1. 13 cm. from the external occipital protuberance extended from midline towards left. There is an incised wound in the scalp 4 cm. x i£ cm. into bone deep/clotted blood present. Wound is narrow at its margin but broad in the centre comparatively. Wound No. 2. 13 cm. from the external occipital protuberance extended from midline towards left. There is an incised wound in the scalp 4 cm. x i£ cm. into bone deep/clotted blood present. Wound is narrow at its margin but broad in the centre comparatively. Wound No. 2. 2 cm above external occipital protuberance is an incised wound in the midline 6 cm. x 1 cm. into deep upto brain tissue which is also cut. The force of the impact of the weapon was so severe that the underlying occipital bone has broken down into small pieces (Note : occipital bone is the strongest of all the skull bones). Clotted blood was present. Wound No. 3 There is an incised wound over the external occipital protuberance extending from mid line towards right. 7 cm. x 2 cm, x brain tissue can be seen at the occipital bone as described in wound No. 2 has been pulvarised. Clotted blood present. Wound No. 4 2 cm. below E. (X P. from midline to left is an incised wound 2.5 cm. x 1 cm. bone deep. There were no injury marks on the hands, upper limbs, front and back of chest, abdomen and lower limbs No marks of ligature. Parietal bone on left side fractured, occipital bones as described earlier, underlying membrance of brain and brain tissue punctured and torn at places Evidence of haemorrhage is there. The chambers of heart were empty. The stomach contain undigested food. The injuries above could be caused by an axe like (Ex. P-1) The injuries described in Ex. PW 8/A were caused by 3 separate and distinct blows inflicted on the victim." 25. In the opinion of the doctor, the deceased had died due to wound delivered by sharp edged weapon leading to haemorrhage and death. The duration between the Injury and death was mi thin minutes and the duration between death and postmortem was within 24 to 36 hours. 26. AH other witnesses of the prosecution are of formal nature. 27. It is established from the statement of Narvada (PW 2) that the accused was the assailant and the deceased had died on account of numerous blows given to them by the accused through axe (Ex. P-l). Her statement is quite dependable since she has given a straightforward and truthful account of the whole incident as an eye-witness to the occurrence. It is established from the statement of Narvada (PW 2) that the accused was the assailant and the deceased had died on account of numerous blows given to them by the accused through axe (Ex. P-l). Her statement is quite dependable since she has given a straightforward and truthful account of the whole incident as an eye-witness to the occurrence. She has also identified the weapon of offence, the watch and chapals owned by the accused and other articles like wearing apparels of the deceased already referred to in the preceding para of this judgment. On her raising hue and cry, Atma Ram (PW 5) and Devi Dass (other than her father PW 1) rushed to their house where they were told by Narvada that the accused had killed her brother and sister They tried to chase the accused, but he made good his escape. Thereafter, the incident comes to the notice of Thakur Dassi (PW 3) through Smt. Shanti Devi (PW 9) as a result of which Devi Dass (PW 1) and Thakur Dassi (PW 3) came to the bouse and came to know the whole occurrence from Narvada (PW 2). Side by side, Atma Ram (PW 5) sent this information to the police station through Sushma Devi (PW4). In addition to the chase given by Atma Ram and Devi Dass, there is evidence that the accused was noticed by Laia Ram (PW 0) and Shanti Devi (PW 9) when he happened to run downwards towards the khad from a short distance. The accused had to cross the river and while doing so, his pyjama (Ex P-10) had drenched, which he left at a place nearby, which was recovered vide recovery memo.. (Ex. PW 10/A) There is no doubt that the accused was one of the labourers with Devi Dass (PW l). Similarly, there is no doubt that he was engaged to do domestic work as well as agricultural operations at the house. Thus, his identification by Smt, Narvada (PW 2) cannot be doubted nor there is any reason why she should have involved the accused in case he was not the actual assailant nor there is any reason to doubt the veracity of other witnesses holding him responsible for this crime, After committing the crime, the accused fled away and the statements of the prosecution witnesses who noticed him while running towards the Jkhad, cannot be doubted. His running away from the scene, soonafter the commission of the crime, displays his conduct and then concealing himself till his apprehension and arrest by the police from a distant place is also one of the important facets of the prosecution evidence in this case Additionally, he is connected through his chapals, watch and blanket, which he had stolen from the house of Birja Nand Negi (PW 20). 28. Recoveries made in this case have also been proved satisfactorily by the prosecution The motive for the commission of the offence, has been stated by Devi Dass (PW i) and Narvada (PW 2}. Howsoever insignificant it may be, but it is there and has been taken into consideration by the trial Judge. 29. The only conclusion which emerges from our examination of the matter is that the prosecution has successfully established the charge against the accused. We confirm the conviction of the accused recorded by the trial Judge. 30. The second equally important aspect of the case relates to the sentence to which the accused is liable to be punished in this case. For awarding death sentence, the trial Judge has recorded reasons in para 42 of his judgment. According to him, the conduct of the accused causing the death of two innocent children by inflicting repeated blows with dangerous weapon like axe on vital parts of the body in a most merciless manner with calculation and deliberation at their young age on a trivial issue of payment of wages, render him dangerous to society, so, deserved the extreme penalty of death instead of imprisonment for life for which there are no mitigating circumstances. 31. Counsel for the parties placed reliance on certain pronouncements to sustain their submissions for and against the sentence part of the case. We refer to some of these decisions now. 32. In AR 1979 SC 916, Rajendra Prasad v. The State of Uttar Pradesh, Krishna Iyer, J, speaking for the majority, took the view that the retributive theory had its day and was no longer valid. Social justice, projected by Article 38, colours the concept of reasonableness in Article 19 and non-arbitrariness in Article 14. These provisions validate death penalty in a limited class of cases, may be, train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit-killing in an intentional and organised way, the learned Judge said. Social justice, projected by Article 38, colours the concept of reasonableness in Article 19 and non-arbitrariness in Article 14. These provisions validate death penalty in a limited class of cases, may be, train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit-killing in an intentional and organised way, the learned Judge said. Without being exhaustive as to various other factors, one consideration in given circumstances, may be the planned motivation to commit the crime and in India, largely deaths are caused not by a cool, calculated, professionally cold blooded planning but something that happened at the spur of the moment and in a faction-ridden society, the groups come to grip on a minor provocation resulting in gruesome tragedy. A family feud, an altercation, a sudden passion, although attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence, call for considering the case for lesser sentence. Then, in para 82 (at p. 939, special reasons for awarding death sentence have been analysed as follows : "9. Special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal e. g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise a hardened murderer or dacoit or armed robber who kills and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependant on the totality of circumstances." 33. In para 86 of the judgment, the following para of an earlier decision of the Court in Ediga Annamma, AIR 1974 SC 799 at p. 806 has also been quoted with approval. It states : "Where the murderer is too young or too old, the clemency of penal justice helps him. In para 86 of the judgment, the following para of an earlier decision of the Court in Ediga Annamma, AIR 1974 SC 799 at p. 806 has also been quoted with approval. It states : "Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socioeconomic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extra-ordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under section 302 read with section 149, or again the accused had acted suddenly under anothers instigation, without premeditation, perhaps the Court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim and the like, steel the hear of the law for a sterner sentence." 34. The Court also referred to AIR 1978 SC 274, Srirangan v. State of Tamil Nadu, wherein the sentence of death for three killings, caused without provocation, was commuted to life imprisonment keeping in view the young age of the criminal, principles underlying section 354 (3) of the Code of Criminal Procedure and the winds of penological reforms The same view was taken by the Court in Namu Ram v. State of Assam, AIR 1975 SC 762 and State of U. P. v. Lalla Singh and others, AIR 1978 SC 368, wherein the Court converted the death sentence to life imprisonment, though the accused had repeated the killings. 35. In AIR 1981 SC 1572, Kuljeet Singh alias Ranga v. Union of India and another, the Court confirmed the death sentence. 35. In AIR 1981 SC 1572, Kuljeet Singh alias Ranga v. Union of India and another, the Court confirmed the death sentence. In this case, the accused had committed the murder of two young children in pursuance of a plan that they would offer a lift in their car to some young children, try to extort ransom from their parents by kidnapping them and do the children to death in the event of any impediments arising in the execution of their plan. It was held to be a savage planning which bore a professional stamp, the murder was not committed on the spur of the moment as a result of some irresistible impulse that could be said to have overtaken the accused at the crucial moment. While confirming the death sentence, the accused were held professional murderers and deserved no sympathy even in terms of the evolving standards of decency of a maturing society. In para 9, the Court said : "9. The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society." 36. AIR 1981 SC 1122, Suresh v. State of U. P., is a case where the accused, a servant of the family of the deceased, murdered not only the young house-wife but also her three years old son, leaving only the five year old son seriously injured. Taking into consideration the fact that the accused was of 21 years of age and was probably taken away by a sudden impulse of sex or theft, thus turning him momentarily insensible, the sentence of death was set-aside and he was awarded imprisonment for life. 37. In AIR 1983 SC 585, Mimauar Harun Shah v. State of Maharashtra. commutation of death sentence to imprisonment for life was refused on account of the fact that the accused had committed a series of murders during January, 19?6 and March, 1977 and in each case, he had been sentenced to death by the trial Court and the High Court of Bombay had confirmed the same and the apex Court had rejected the Special Leave Petition. The argument that the accused had been in jail for number of years and that the sentence had not been executed, did not prevail and the case was regarding as falling within the rare of the rarest category. In para 4 of the judgment, the Court held: “....Having regard to the magnitude, the gruesome nature of the offences and the manner of perpetrating them this case in ail the facts and circumstances must b& regarded as falling within the rare of the rarest category and the extreme penalty of death is clearly called for. Any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilisation of the society......" 38. In AIR 1983 SC 957, Machht Singh and others v. State of Punjab, the apex Court confirmed the sentence of death to some of the accused after taking into consideration number and the manner of the killings against many of innocent; and defenceless victims, thereby exhibiting that the accused pursued a course of utter cruelty and atrocity by committing the crimes in a cold-blooded, calculated and gruesome fashion, thereby spreading horror of a killing spree. There was a family fued between the two families and in it, 17 were killed and three sustained injuries in the course of a series of five incidents occurred in a quick succession in five different villages, situated in the vicinity of each other. Before rejecting the appeals, M. K Thakkar, J , speaking for the three Judges Bench, examined the question of sentence that could be appropriately awarded. It is most relevant and instructive to quote extensively paragraphs 32, 33 and 34 of the judgment (at pp. 965 to 967) : "32. The reasons why the community as a whole does not endorse the humanistic approach reflected in *death sentence in no case doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the tear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community ownes a debt to the community for this protection. When ingratitude is shown instead of gratitude by killing a member of the community which protects the murder himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder. When the murder is committed for a motive which evinces total depravity and meanness For instance when (a) a hired assassin commits murder for the sake of money or reward ; (b) a coldblooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or visa-vis whom the murderer is in a dominating position or in a position of trust ; (c) a murder is committed in the course for betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, For instance, when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning9 and what are known as dowry-deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder. IV. Magnitude of crime. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age of infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. 33. In this background the guidelines indicated in Bachan Singhs case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh’s case : (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 require to be taken into consideration alongwith the circumstances of the crime9; (iii) Life imprisonment is the rule and death sentence is an exception In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment 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 has 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. 34. In order to apply these guidelines inter alia the following questions may be asked and answered 2 (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ? 34. In order to apply these guidelines inter alia the following questions may be asked and answered 2 (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?" 39 In AIR 1985 SC 823, Henry Westmuller Roberts etc. v. State of Assam etc, the sentence of death was confirmed. The accused kidnapped children of rich people for extracting ransom after due planning. 40 AIR (985 SC 891, Lok Pal Singh v. State of M. P., is a case where plea for setting aside death sentence was rejected in view of as many as six killings in which the accused took a leading role, 41. In AIR 1988 SC 1883, Kehar Singh and others v. The State {Delhi Admn.)f the case related to the assassination of late Prime Minister Smt. Indira Gandhi. The killing was the result of criminal conspiracy and was executed by the security guards, entrusted with the security of late Prime Minister. In addition, the Court found that the accused attacked an unarmed lady with series of bullets, The killing was most foul and perpetrated by those on whom the confidence was reposed to give her protection. The motive for the crime was not personal- It had serious implications to the society and the nation. The act threw to winds ail values and ideals in life, all norms and obligations besides betrayal of a worst order. It was the most foul and senseless assassination which deserved to be punished with dread sentence permitted by law. These were the conclusions of the learned Judges of the apex Court 42. It was in (1980) 2 SCC 284, Bachhan Singh v. State of Punjab, that section 354 (3) Code of Criminal Procedure, which prescribes for awarding of death penalty in case there are special reasons, came up for consideration. The attack was founded on the plea that in the absence of guidelines, to hold the case fit for award of death sentence, is in violation of Articles 14. 19 and 21 of the Constitution of India. The attack was founded on the plea that in the absence of guidelines, to hold the case fit for award of death sentence, is in violation of Articles 14. 19 and 21 of the Constitution of India. Further, it was against the object and spirit of two other Articles, namely, Articles 19 and 21 of the Constitution of India. The Court upheld the validity of this provision after a detailed and exhaustive analysis of the legal, constitutional and other relevant considerations touching the question. It approved the view taken in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, though limited the scope of Rajinder Prasads case relating to cases where imposition of death penalty could only be awarded, leaving it open to the Court to decide the nature of sentence in the light of the facts and circumstances of each case. 43. In Jagmohans case, the Court had noticed that for certain types of murderers, death penalty alone is considered as adequate deterrent, when in para 13 it said: “......A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country, society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society." 44. In Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799, Krishna Iyer, J., had observed that "deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime" It was also said that i "horrendous features of the crime and hapless, helpless state of the victim and the lime, steel the heart of the law for a sterner sentence". Similarly, in Shiv Mohan Singh v State (Delhi Administration) and Charles Sobraj v. Superintendent, Central Jail, Tihar, New Delhi, (1978) 4 SCC 104, the same learned Judge (Krishna Iyer, J ,) reiterated the deterrent effect of death penalty. Similarly, in Shiv Mohan Singh v State (Delhi Administration) and Charles Sobraj v. Superintendent, Central Jail, Tihar, New Delhi, (1978) 4 SCC 104, the same learned Judge (Krishna Iyer, J ,) reiterated the deterrent effect of death penalty. This view had earlier been taken by the Supreme Court in AIR 1976 SC 230, Balwani Singh v. State of Punjab, wherein Untwalia, X, speaking for the Court, summed up the scope and implication of section 354 (3) of the Code of Criminal Procedure thus: "Under this provision the Court is required to State the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given .case, will warrant the passing of the death sentence It is unnecessary nor is it possible to make a catalogue of the special reasons which may Justify the passing of the death sentence in a case." Dealing with the question whether the Court should lay down standards or norms restricting the area of imposition of death penalty to a narrow category of murders, it was said in para 169 that: “If by "laying down standards", it is meant that murder should be categorised before hand according to the degrees of its culpability and all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion, the argument merits rejection." Again, in paras 170, 173 and 187, the Court observed : "170. As pointed out in Jagmohan, such "standardization” is well-nigh impossible. 173 Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial It tends to sacrifice justice at the altar of blind uniformity, indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty. 174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. 174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in section 354 (3), the Court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do." Again, in para 176, the Court took notice of its earlier decision in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 and quoted with approval the following observations of this judgment: "Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and, therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up -unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L.C. said in Hyman v. Rose : I desire in the first instance to point out that the discretion given by the section is very wide. Now it seems tome that when the Act is so expressed to provide a wide discretion... While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L.C. said in Hyman v. Rose : I desire in the first instance to point out that the discretion given by the section is very wide. Now it seems tome that when the Act is so expressed to provide a wide discretion... it is not advisable to lay down any rigid rules for guiding that discretion I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which Judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand.” Finally, in para 171, the Court said : “171. Firstly, there is little agreement among penologists and jurists as to what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment for ft person convicted of a particular offence. According to Cessare Beccaria, who is supposed to be the intellectual progenitor of todays fixed sentencing movement, crimes are only to be measured by the injury done to society*. But the 20th Century sociologists do not wholly agree with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the hard done (or risked j by the act and degree of actors culpability". But how is the degree of that culpability to be measured Can any thermometer be devised to measure its degree? But the 20th Century sociologists do not wholly agree with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the hard done (or risked j by the act and degree of actors culpability". But how is the degree of that culpability to be measured Can any thermometer be devised to measure its degree? This is a very baffling difficult and intricate problem." 45. After taking into consideration factors pointing out aggravated and mitigating circumstances, the Court said that there are numerous other circumstances justifying the passing of lighter sentence and compelling passing of higher sentence but all of them cannot be enumerated for future regulation. 46. Shri T R. Chandel also referred to decisions like 1981 Cr LJ 726 Muniappan v State of Tamil Nadu, 1985 Cr LJ 493 ; State of U. P v. M. K. Anthony, AIR 1975 SC 1)8 ; Nachhittar Singh v State of Punjab, AIR 1975 SC 762 ; Namu Ram Bora v. The State of Assam and Nagaland, (I989) 2 Crimes 266 ; Allauddin Mian and others v. State of Bihar, AIR 1978 SC 274 ; Sriraman v. State of Tamil Nadu, 1981 SCC (Cri) 163 ; Shidagouda Ningappa Ghandavar v. State of Karnataka and 1981 SCC (Cri) 760 ; Ummilai v. State of Madhva Pradesh to submit that despite commission of double murders and triple murders, the Court did not categorise them rare of rarest cases or very extreme cases and converted the death sentence to the sentence of imprisonment for life. We refer to the facts of the last case in view of the seriousness of emphasis placed by Shri T. R. Chandel who submitted that the facts of this case are more or less similar to the case before us. 47. The accused, aged 22 years, was brother of Hari Prasad. On the morning of October 20, 1977, they had a guarrel with respect to the grazing of cattle by Hari Prasad. The accused was slapped during the course of this quarrel. He felt insulted by this treatment. He went home and committed the murder of his brothers wife and his son. He was convicted by the Additional Sessions Judge and sentenced to death. The sentence was confirmed by the High Court. The accused was slapped during the course of this quarrel. He felt insulted by this treatment. He went home and committed the murder of his brothers wife and his son. He was convicted by the Additional Sessions Judge and sentenced to death. The sentence was confirmed by the High Court. In the Special Leave Petition, the apex Court took into consideration the young age of the accused and the fact that he acted under a sudden impulse in a grave fit of rage and set-aside the sentence of death and imposed upon him and he was sentenced to imprisonment for life. 48. Taking into consideration the aforesaid decisions placed before us by the learned Counsel for the parties, we are of the considered opinion that the present case does not fall in the category of rare of rarest cases calling for the sentence of death. The accused is 21 years of age. He has no past Criminal history nor we think that he has propensity to repeat the offence and prove dangerous to the society. There is no evidence to suggest that he planned to kill the children for any economic gain. Rather, there was some dispute relating to the payment of his wages as appears from the statements of Devi Dass (PW 1) and Narvada (PW 2). Further, the additional fact on which he lost temper was the refusal on the part of Narvada (PW 2) to provide food on demand by him and also the fact that the family had been providing him half baked chapatis. The accused is a minial rustic from Nepal who has come to India to earn his livelihood by doing all sorts of jobs, but towards the payment of his wages, some kind of dispute is created and instead of settling the same, Devi Dass (PW 1) postponed the matter for getting it settled from one Prem Singh. As a matter of fact, he was a labourer like others and not in domestic service as the prosecution witnesses have tried to name him He is also repentent of his action when we see his appeal to the Court that he is a poor with aged mother to be looked after in Nepal. 49. As a matter of fact, he was a labourer like others and not in domestic service as the prosecution witnesses have tried to name him He is also repentent of his action when we see his appeal to the Court that he is a poor with aged mother to be looked after in Nepal. 49. The result of the aforesaid discussion is that the conviction of the accused under section 302 of the Indian Penal Code is confirmed but the sentence is converted from death to imprisonment for life. Order accordingly.