JUDGMENT 1. - An abortive attempt to commit suicide after dreadful drowning of his own four innocent children to death,is the gravamen of the charge accused Gokul is facing in this reference which has been made over to this court by learned Addl. Sessions Judge, Neem Ka Thana, (Sikar), vide his order of reference dated 25.10.1990 with his recommendation to confirm the penalty of death sentence to Gokul. 2. The pathetic story starts with trivial dispute between husband and wife which took place on 24.7.89 when the husband Gokul demanded money from his wife Soni for purchasing liquor to which she refused as she herself was in need of money for purchasing an injection for her ailing child. Accused Gokul feeling annoyed gave beating to her and she was rescued by her uncle-in-law. The wife Mst. Soni (PW.10) there upon went to her aunt-in-law's house leaving the children at her residence. At about 3.00 P.M. when she returned home did not find Gokul and children at home. She came to know that in afternoon her husband along with the children left for some unknown place. Her bling mother - in - law also stated that the children have gone with Gokul possibly to Bhojpur where he was living earlier. Mst. Soni asked Sheopal, her brother-in-law to go in search of the children and her husband. Sheopal along with his cousin Nanga started for making a search at Bhojpur in the evening at about 7.00 P.M. but because it started raining at 8.00 P.M. they came back from half way from where they had gone i.e. towards the village Bhojpur. In the morning they went again for search but this time towards Balala Ki Dhani where they found some men and women drawing water at a hand-pump. Sheopal asked them as to whether they had seen one man with four children to which they replied in affirmative and stated that a man with four children had gone after drinking water.There after Sheopal met one Noranga who stated that a man with four children had been seen by him going towards Mehron Ki Dhani, i.e., his own house. Thereafter they met one Sua Ahir of Khandela. He stated that one person was shouting from inside the Modiyonwala well. Sheopal and Nanga alongwith Sua therefore arrived at Modiyonwala well and looked into the well. Thereafter they met one Sua Ahir of Khandela. He stated that one person was shouting from inside the Modiyonwala well. Sheopal and Nanga alongwith Sua therefore arrived at Modiyonwala well and looked into the well. They then called,name of Gokul to which he responded and stated that he should be pulled out from inside the well. When Sheopal asked about the children Gokul replied that he himself had jumped into the well with them and the children are dead but he was alive. He wanted to come out on which Sheopal and Nanga returned to the village without making efforts to bring him out and told this story to the villagers. Sheopal thereafter went to police station Khandela District Sikar for lodging the report where he gave a written report Ex. p.10 whereupon a case for offence under S. 302 IPC and 309 IPC was registered and investigation commenced. The investigating officer Shivpal Singh (PW. 16) immediately started for the spot. He arranged for a charas and Lav. They brought out Gokul from the well with the assistance of one Noranga Swami. When Gokul was brought out he was trembling and his skin had corrugated because of his prolonged stay in water. Thereafter the dead bodies of the three children were brought out and they were identified as Gadduram, Premchand and Bidatali, aged 8 years, 3 Years and 5 Years respectively. The dead body of the fourth child Shankari aged 10 years could not be brought out at that point of time. Her dead body was brought out on the next day because possibly it had stuck up in the foundation of a water-pump which had been fixed inside the well and it floated next day. After necessary investigation a charge sheet was submitted in the court of Munsiff and Judicial Magistrate, Srimadhopur against accused Gokul who was committed to the court of Sessions and the learned Addl. Sessions Judge, Neem Ka Thana tried the accused. Charges for offences under Sections 302 and 309 IPC were read over to him to which he denied and claimed to be tried. At trial prosecution examined 16 witnesses in support of its case. Accused denied the occurrence as alleged by prosecution. He stated that his wife Mst. Soni is living in adultery with Sheopal and both of them have conspired to falsely implicate him into this crime. At trial prosecution examined 16 witnesses in support of its case. Accused denied the occurrence as alleged by prosecution. He stated that his wife Mst. Soni is living in adultery with Sheopal and both of them have conspired to falsely implicate him into this crime. He stated that in fact the crime has been committed by Sheopai and he was wrongly arrested by the police and was subjected to third degree method, as a result of which he sustained injuries. 3. The learned trial court after discussing the entire evidence came to the conclusion that it was a cruel and brutal murder of the four innocent children whom Gokul had thrown inside the well and then he attempted to commit suicide. Thus, he found both the charges proved and proposed the penalty of death sentence. He has thus referred this case to this court for confirmation of the death sentence. Accused has also sent an appeal through Jail challenging his conviction and sentence proposed.Both,the reference as well as the appeal are disposed off by this single judgment. 4. At the outset we may mention that the accused was not in a position to engage a lawyer to defend himself hence the court appointed Shri Paras Kuhad as an amicus curiae as he had volunteered to argue the case on behalf of accused Gokul. 5. Shri Paras Kuhad, learned counsel for the accused, submitted that the entire case is based on circumstantial evidence and the chain of the circumstances is not complete.His submission is that the entire case is based on the statement of Mst. Soni and Sheopal both of whom are interested to liquidate accused as he is an obstacle in love and even if the circumstances are analysed then too there is nothing to infer that ghastly crime, if any, has,been committed. His submission is that even assuming that the statement of Mst. Soni is correct even then she has not seen the accused carrying away the children at any time. The mother of the accused who had been examined in the case as PW. 14, Badami, is blind and she is not even in a position to state as to whether the accused had left along with the four children. Soni is correct even then she has not seen the accused carrying away the children at any time. The mother of the accused who had been examined in the case as PW. 14, Badami, is blind and she is not even in a position to state as to whether the accused had left along with the four children. It is then submitted that the conduct of Sheopal and Nanga is highly suspicious inasmuch as both of these persons are alleged to have left the house in the evening in search of the children and accused Gokul and they started for village Bhojpur, but they did not go to village Bhojpur and returned home from half the way on the pretext that it started raining. The submission is that they had gone more than half distance and they could have very well gone on to Bhojpur for searching him out as otherwise also they had to return in rains. For reasons known to them they returned in the night, and according to the prosecution story they went again in the morning, but this time surprisingly they did not go to village Bhojpur and instead went directly towards a place where the dead bodies of the children were found. It is very strange as to how they knew that the accused, as well as the children, would be found in the direction of Modiwala well when the Balala Ki Dhani and Modiwala well are in diametrically opposite directions. There is no evidence to suggest that anybody had informed them in the night or early in the morning that the accused had not gone towards the village Bhojpur, but had in fact gone towards Bilala Ki Dhani.The story of their being told by the men and women who were taking out water from the hand pump is a patent lie. His submission is that none out of the ladies or persons present at the pump has been examined in the case to substantiate the story. It is further submitted that thereafter the story of the police is about the involvement of Noranga, who was instrumental in bringing out the dead bodies and the accused Gokul from inside the well. His submission is that none out of the ladies or persons present at the pump has been examined in the case to substantiate the story. It is further submitted that thereafter the story of the police is about the involvement of Noranga, who was instrumental in bringing out the dead bodies and the accused Gokul from inside the well. He too has not been examined for reasons best known.It is submitted that the non-examination of any of the witness present at the well or that of Noranga, is fatal to the prosecution as they were an important link in the prosecution story, more particularly when it is a case of abandonment of search at Bhojpur as stated above. It is then submitted that the story given by Sua is totally false. It is borne out from his statement that he was at the distance of 50 pawdas which approximately comes to 250 ft. minimum and the well is 60 feet deep. It is not possible to hear the voice of some body coming from within the well, which could be heard at such a long distance. It is submitted that if it was true then the natural anxiety of the person would be first to go and find out if at the well there any persouis there but he did not say for a moment that he looked into the well and found that some person was inside. He only stated that he had heard some sort of sound coming from the well but he did not go near it. It is then submitted that one of the prosecution witness PW. 5 Prahlad has categorically stated that along with Noranga Swami and one Mangla had also gone down to bring out the dead bodies as well as Gokul. But he too has not been examined in the case. It is also submitted that the conduct of Sua and Sheopal, who had found Gokul in the well, and Gokul requested them to bring him out, yet they ignored him and went away, is highly suspicious. No effort was made to bring him out. Their leaving the place without informing anybody nearby is a conduct which is under stand able. It is submitted that the accused is a victim of circumstances from his early childhood. He was given in adoption to Jagannath. No effort was made to bring him out. Their leaving the place without informing anybody nearby is a conduct which is under stand able. It is submitted that the accused is a victim of circumstances from his early childhood. He was given in adoption to Jagannath. He has not been loved by the members of his family. On the contrary he has been meted out with such a behaviour which constantly shows that everybody was prejudiced with him. He was earlier involved in a murder case wherein he was acquitted by this court but all the witnesses have stated that he had been convicted in the earlier case and they had denied even the fact of his being acquitted. It is submitted that he had been deprived of his adoption as Jagannath had extinguished his right in his property. While he was in jail his wife gave birth to Mst. Prom and therefore after his being acquitted by this court when he came he thought it proper to leave the house for Bhojpur for earning his livelihood along with his wife. He lived for a period of ten years at Bhojpur where his wife gave birth to four children (since dead). Misfortune however persisted and after be getting four children from Mst. Soni he met an accident with a truck and was incapacitated to work.His wife therefore, suggested that they should come back to Mehron Ki Dhani where his mother and Sheopal were living. It was once again that the association of Mst. Soni became thick with Sheopal and it is but for this reason that it appears that the whole incident had taken place. It is submitted that the conduct of Mst. Soni as well as that of Sheopal is so strange that they did not even go to the well even when they learnt that the four children have been brought out and their dead bodies were lying there. It is very unusual that the mother having heard that her husband has been found out from the well and her children had also died would not care to go. Her conduct has not been above suspicion. It is submitted that the investigating officer has not fairly investigated the case. He was determined from the very beginning to make out a case against the accused. Her conduct has not been above suspicion. It is submitted that the investigating officer has not fairly investigated the case. He was determined from the very beginning to make out a case against the accused. It is submitted that he had been working at the behest of Shivpal and it is for this reason that even no senior officer of police called for carrying out investigation though there had been four murders and only an A.S.I. took up the whole investigation. He submitted that the investigating officer did not call any witness from the neighbourhood for making the recovery memos and has made all the witnesses to lie and himself lied about the past conduct of accused Gokul, in as much as the investigating officer was also unfair to the court or even when the court repeatedly asked him to show as to what had happened in the earlier case he in turn submitted only the copy of the judgement of conviction which was recorded by the trial court but did not inform the court that he had been acquitted ultimately by the High Court and thus suppressed the truth.It it at the fag end of the trial that the trial court itself found out as to what happened in the earlier case directly from the court. The investigating officer as well as all the witnesses have categorically denied about the acquittal of the accused in the earlier case, when it was a fact known to all and sundry. It is further submitted that the investigating officer has not examined any of the ladies or the persons who were present at the hand pump or the persons who had met him in the evening who had seen the accused going along with the four children. It is also submitted that though the evidence was that the accused had gone towards the village Bhojpur but no evidence has been collected to show that he had gone. in that direction, more particularly when the evidence was indicative of the fact that the witnesses have abandoned their wishes of going to Bhojpur for searching out the accused and instead went in the opposite direction. It is then submitted that there is no motive in the case to connect the accused with the crime. in that direction, more particularly when the evidence was indicative of the fact that the witnesses have abandoned their wishes of going to Bhojpur for searching out the accused and instead went in the opposite direction. It is then submitted that there is no motive in the case to connect the accused with the crime. It is submitted that refusal to give money for the purpose of purchasing wine could not give a provocation of such a gravity that man would kill his own four children and then would attempt to commit suicide. Real motive of the crime must have been very provoking and disgusting. Lastly it is submitted that the period which is intervening between the time the offence is alleged to have been committed and the time when the body of the four children were brought out from the well, is not in consonance with the Modi's Medical Jurisprudence as well as the jurisprudence by Pareek. Coming to the question of sentence learned counsel submitted that in case the court comes to the conclusion that the offence is proved against the accused then too it is not a case where the death sentence should be confirmed. In circumstances of the case it calls for lesser punishment. The submission of the learned counsel is that in absence of motive to commit crime it is difficult to conceive that father will kill four children unless the circumstances were volcanic and he has been compelled to take an extreme action of committing such a serious but cowardly crime. It is submitted that his own attempt to put an end to his own life and kill his own four innocent children clearly go to show that it was more of an act of desperation and frustration from life that after putting an end to all the four children he attempted suicide. It may be possible that Gokul was not happy that four children who were born out of his own loins were not being properly treated in the house of Sheopal and he too had become secondary for his wife, and this might have lead the accused to have taken this extreme step which is further confirmed from the fact of not taking Prem with him and taking only these four children. It is submitted that the accused a psychopathic personality and in a case like the one where the accused had been victim of circumstances from his childhood, if commits a crime it cannot be called to be a deliberate crime rather it was an insane and impulsive act on the part of the accused that he committed the crime. It is submitted that the extreme penalty of death sentence should be given only in rarest of the rare cases where it is borne out from the record that the commission of crime is heinous and brutal. It is submitted that before confirming the extreme penalty of death sentence the court must pose a question to itself as to why the accused has committed murder and the answer would be that his action was an act of desperation and an act of frustration because of infidelity of his wife who during his absence in jail as well as subsequently got involved in sexual relations with his own brother. He was a condemned man in his own house, he was neither liked by the mother, nor liked by the wife nor by the brothers nor by the adoptive father and placed in such a situation that he desperately thought to put an end to his life and killing his own four children who were not getting good treatment either at the hands of Sheopal and Sheopal obviously did not like them because they were not born out of his loins. Sheopal however was giving extra ordinary good treatment to Prem who had been born during the absence of the accused when he was in jail. Then another question which this Hon'ble Court should consider is it is submitted would the death penalty in a case like the one have a deterrent effect on those who commit crime to settle the deep rooted grudges in the village or in the surrounding area. 6. Mr. Garg appearing on behalf of the State supported the reference and submitted that this is one of those crimes where the accused has not even thought that he was taking away life of four innocent children with whom he could have no grudge or with whom he could have no enmity at all. 6. Mr. Garg appearing on behalf of the State supported the reference and submitted that this is one of those crimes where the accused has not even thought that he was taking away life of four innocent children with whom he could have no grudge or with whom he could have no enmity at all. He has nipped them in bud these four innocent future citizens and the action of doing this all is such which must be awarded with the maximum penalty. It is submitted that the prosecution case is fully proved in as much as Mst. Soni had given the back ground in which the offence had been committed. She has categorically stated that in the morning the accused wanted money for purchasing liquor and when she refused he gave her beating and immediately after left the house with all the four children. It is submitted that even while leaving the house he knew that he is going to kill the children and he had taken them with the, aforesaid intention only. It is submitted that the back-ground in which the accused has been living is also such which shows he is a very bad character who has not even spared his mother and beat her, she had to lodge a report at the police station. He had earlier been also involved in a murder case where he was convicted by the trial court. It is further submitted that the accused who had gone to village Bhojpur returned to this village for the purpose that he had no means of earning his livelihood after he had met the accident and therefore, he was having ill will towards member of family. Learned counsel submits that is very strong circumstance of the accused murdering the four children. It is submitted that all the five i.e. accused and four children had been brought out with the assistance of other persons from the well which is a circumstance which fully supports the prosecution story. It is then submitted that the accused deserves the extreme penalty of death sentence because of the fact he is responsible for putting an end of four innocent children none of whom had attained the age of majority. There was no fault of the children for which they have been killed. He therefore, prayed that the Reference deserves to be accepted and death sentence confirmed. 7. There was no fault of the children for which they have been killed. He therefore, prayed that the Reference deserves to be accepted and death sentence confirmed. 7. We have given our thoughtful consideration to the rival contentions and have perused the entire record. 8. It may be observed at the outset that there is no direct evidence connecting the accused with the commission of the crime. The entire prosecution case is based on circumstantial evidence and the prosecution has relied on the following circumstances: 1 . Previous past conduct of the accused and the immediate past incident which had taken place, before the accused left the house in the company of the four children, 2. Witnesses Sheopal and Nanga when went in search of the accused and the children, they were informed that the accused was last seen together with the four children. 3. Extra-judicial confession of the accused before Sheopal, Sua and Nanga when they saw him alive inside the well. Recovery of the dead bodies from the same well from where the accused had been brought out, the medical evidence which corroborates the fact that four children had died of drowning and the accused had also remained in water -for a long period before which he was brought out. 9. On the first point the prosecution evidence is that of Mst. Soni (PW 10), wife of the accused. She in her statement has stated that the accused is her husband. She has two brothers-in-law who are younger to her husband. One is Harphool and another Sheopal. She had given birth to five children. Her eldest daughter is Prem aged 12 years, second daughter is Shankri aged 10 years, her son Guddu aged 8 years, daughter Santosh aged 6 years and son Prem aged 3 years. Out of them eldest daughter Prem is alive and rest four are dead. According to her, her husband had been imprisoned in the past and then she had gone to her father's place, but later on her parents-in-law brought her to their place. When her husband was released from jail she along with him started living in Bhojpur. There Gokul sustained injuries in an accident from Truck and had remained under plaster and hence her brother-in-law brought him to Malaria Ki Dhani. About 5-6 months earlier at 9.00 in the morning Gokul accused demanded money from her for purchasing liquor. When her husband was released from jail she along with him started living in Bhojpur. There Gokul sustained injuries in an accident from Truck and had remained under plaster and hence her brother-in-law brought him to Malaria Ki Dhani. About 5-6 months earlier at 9.00 in the morning Gokul accused demanded money from her for purchasing liquor. She had stated that Prem is sick and she has to purchase an injection for her on which Gokul got annoyed and started beating her. Her uncle-in-law Murli came and separated them. She went to her own in-laws, leaving her husband Gokul and children at home. Gokul at about 3.00 P.M. left house with four children. When she returned home at 4.00 P.M., she did not find the children and Gokul, hence she asked her blind mother-in-law who told her that Gokul had taken the children to Bhojpur. She admitted in her cross examination on this point that her husband had remained in jail for 20 years before, then said for how much period she cannot say. She denied the suggestion that she lived in the absence of the accused as the wife of Sheopal brother of the accused and that she delivered any child when the accused was in jail and further that Prem elder daughter is an illegitimate child. She also denied the suggestion that they went to Bhojpur only for the reason that her husband did not like her to stay with Sheopal. She has stated that she had not lodged any report of the accused beating her though she had sustained injuries. She admitted that she had not seen Gokul taking away the children. She also admitted that she did not go in search of the children but had sent her brother-in-law. She has stated that on enquiry from Dhanni she was told that Gokul had gone to Bhojpur. She denied the suggestion that she and Sheopal had drowned the children in the well. She stated that she is ignorant as to where Gokul used to drink everyday. She also stated that she cannot say how children died. 10. Harphool (PW. 12) has stated that Soni is his elder brother's wife who delivered five children, namely, Prem, Shankri, Bidkali, Guddu and Premchand. His brother's wife and Sheopal, told him few months back that Gokul and Soni had taken away the children and they should be searched. She also stated that she cannot say how children died. 10. Harphool (PW. 12) has stated that Soni is his elder brother's wife who delivered five children, namely, Prem, Shankri, Bidkali, Guddu and Premchand. His brother's wife and Sheopal, told him few months back that Gokul and Soni had taken away the children and they should be searched. He in his cross examination has stated that Gokul used to ask for money from Soni for liquor and meat and often used to quarrel. He denied the suggestion that he and Sheopal might have thrown the children into the well. 11. Badami (PW. 14) is the blind mother of the accused who has stated that Gokul had committed the murder of Kalu Goojar and he was convicted in that case. After he went to jail his wife Soni stayed with her. He returned from jail after 11-12 years. He did nothing after return from jail and used to beat his wife and children and had also broken her both the hands and the legs. He always used to demand money for drinking. Some times he used to demand ornaments and some times money. A year before he took away the four children from the house after quarrelling with his wife. She had sent Harphool, Nanga and Sheopal in search of Gokul and the children. She has stated in her cross examination that she had lodged a report against her son Cokul for beating her and for that he had to remain in jail for six months. She also stated that accused Gokul stayed in Bhojpur for 8-9 years. She denied the suggestion that it was she who had turned out Gokul and his wife from the house and, therefore, they might have shifted to Bhojpur. She also denied the suggestion that she is not the real mother of the accused. She however, stated that she does not know when the accused had taken away the children. She has stated that she was informed by the wife of the accused in this connection. She herself had not seen the children being taken away. 12. Next witness is Prem PW. 15, daughter of the accused. She has stated that her father used to demand money from her mother and when she would refuse he would give her beating. He also used to beat her grand-mother Badami. She has. She herself had not seen the children being taken away. 12. Next witness is Prem PW. 15, daughter of the accused. She has stated that her father used to demand money from her mother and when she would refuse he would give her beating. He also used to beat her grand-mother Badami. She has. stated that she had four more brothers and sisters, namely, Shankri, Guddu, Bidkali and Prem Chand whom her father had murdered by throwing them into Modiwala well. She stated that when she had returned in the evening her mother had informed her that her brothers and sisters had been taken away by their father to Bhojpur. Prosecution has also placed on record the judgment of learned Addl. Sessions Judge, Sikar, dated September 30, 1974, wherein the accused Gokul had been convicted for offence under S. 302 IPC and sentenced to imprisonment for life. This is the total evidence about his past conduct. 13. It may be pertinent to mention here that each witness including the investigating officer has denied the knowledge about ultimate result of the aforesaid case. However, the court had anxiety to find out about the same and it was learnt that the accused had been acquitted in that case on an appeal, from the High Court. Thus, the witnesses on this point have suppressed the evidence for reasons best known. It is however, borne out from the record that accused Gokul had remained in jail for about six years, i.e., from the year 1972 till his appeal was allowed by the High Court vide judgment, dated April 30, 1979 and he was released from jail on May 1, 1979. Thus, practically for seven years he remained in jail away from his wife when she was living with his brother-in-laws Sheopal and Harphool. Sheopal according to his own statement, had not married and it appears that accused suspected the fidelity of his wife and it is for this reason that he had left his village along with his wife for Bhojpur where they stayed for a long period of approximately ten years. The age of the children in this respect is very relevant. According to the statement of Mst. Soni, his wife and as per medical evidence eldest child among murdered was Shankri aged ten years who had been born after his migrating to Bhojpur, while Mst. The age of the children in this respect is very relevant. According to the statement of Mst. Soni, his wife and as per medical evidence eldest child among murdered was Shankri aged ten years who had been born after his migrating to Bhojpur, while Mst. Prem is eldest daughter whose age has been given out to be 12 years in the year 1989 i.e. period when the accused was apprehended in earlier case. Accused had remained out of jail from 1979 to 1989 and obviously Prem is only survivor out of the children, born prior to accused having been acquitted in the case of murder of Kalu Goojar, therefore, it appears that the accused suspected her to have been born out from the loins of his own brother and, therefore, it was for this reason that he left the village and went to Bhojpur where he stayed for a long period of ten years, till he sustained a fracture and could not earn his own livings and his wife again insisted on going there where she was again in the company of Sheopal. It may be that it was to the great disliking of the accused that he, under the circumstances placed, felt restless and used to pick up the quarrel with his wife Soni and on that day also he demanded money for purchasing liquor and on not having been given the money by his wife he left with the children for Bhojpur, though there is no direct evidence as mentioned above for seeing him taking the children. First circumstance thus do indicate that he must have left the house in the company of the four children whom he believed to be his own, i.e., having born from his own loin and left behind Mst. Prem whom he suspected was not his. Hence first circumstance does indicate that he was suspecting bad character of his wife-he was not having good relations with his own mother, brothers and wife so he left the home in the company of the four children, namely, Shankri, Badkali, Guddu and Premchand. 14. The second circumstance regarding their having been last seen together the prosecution evidence is of Sheopal, PW.7, the brother of accused Gokul. 14. The second circumstance regarding their having been last seen together the prosecution evidence is of Sheopal, PW.7, the brother of accused Gokul. He stated that when he returned in the evening at 5.00 P.M. Gokul's wife told him that Gokul has left the house with the children on which he replied 'where he will go, he must have gone to Bhojpur as earlier also he had gone there. He therefore, started for Bhojpur but returned soon after as it was raining on the way. They again left in the morning along with Nanga in search of Gokul and his children. When they reached near Balala Ki Dhani certain persons including ladies were drawing water from a Hand-pump with whom they enquired as to whether they had seen one man with four children, on which they stated that they had seen in the evening. At that time Nauranga had also arrived there who also stated that one man with four children was there till evening and that then they went towards Dhani. Similar is the statement of Nanga P.W. 11. This is the total evidence about the accused having been last seen in the company of the deceased children. This evidence led by the prosecution, in our opinion, is wholly insufficient, firstly because none of the persons who were drawing water from the well have been examined in this case, nor Nauranga has been examined who had seen them. Badami was blind who could not have seen Gokul taking away the four children and thus, there is no evidence direct or circumstantial in this respect as the evidence of Nanga and Sheopal in this respect is inadmissible in evidence being hearsay. Still in our opinion this evidence is not of much significance in this case because of the fact that dead bodies of the children had been brought out from the same well from where accused Gokul had been taken out. This aspect will be dealt with afterwards in this judgment. 15. The next evidence about the extra judicial confession is again that of Sheopal P.W. 7 and Nanga PW. 11 and one Sua PW. 9. This aspect will be dealt with afterwards in this judgment. 15. The next evidence about the extra judicial confession is again that of Sheopal P.W. 7 and Nanga PW. 11 and one Sua PW. 9. Sheopal in this connection stated that when-Nanga informed them that he (Gokul) was seen going towards Dhani they started for Dhani and on the way when they were near Modiyon-wala well they came across Sua Aheer from whom they enquired about Gokul and the children to which he replied that one man is crying from inside the well, go and see who it is, on which he went to the well and found his brother's Chappals, a stick and clothes of the children lying near the well. He peeped inside the well where he saw the dead bodies floating and he heard the voice of Gokul. There upon he called Gokul by name and asked where are the children on which he stated that, "he'had drowned the children in the well and he himself has fallen. The children are dead but he is alive and he should be brought out". He and Nanga thereafter left the place for informing the villagers. The witness in cross examination has stated that they had met Sua Aheer at 8 in the morning and they met none else. He however, did not go to the well again either to see the children who had been drowned nor his brother. He had however gone to the police station. He at no stage thereafter associated himself with the case. 16. Nanga,,PW. 11 also stated that when Sua Aheer informed them that a voice is coming from Modiwala well he and Sheopal went there and when they looked into the well they found the dead bodies floating and heard the voice of Gokul from inside the well who on being asked by Sheopal replied that he has thrown the children into the well and he himself fell down. The Children are dead and he should be brought out. To the same effect is the statement of Sua PW. 2 who has stated that when he, Nanga and Sheopal looked into the well they saw the children floating and when asked, Gokul replied from inside the well that he had thrown the children into the well and he should be brought out. It is thereafter that they were brought out from the well. 2 who has stated that when he, Nanga and Sheopal looked into the well they saw the children floating and when asked, Gokul replied from inside the well that he had thrown the children into the well and he should be brought out. It is thereafter that they were brought out from the well. Certain persons gathered at the well and one Nauranga Swami brought out the accused Gokul from inside the well, his skin had corrugated and he was shivering. He asked for smoke and then he was questioned. According to Bhagirath PW. I when asked he stated that he himself had jumped into the well and that he had thrown his children also into the well. Three children were brought out and when asked about the fourth he again said that fourth is also inside the well. The fourth child was searched but could not be traced out. However on the next day the body floated and it was brought out. 17. Having gone through the statements of the prosecution witnesses Bhagirath PW.1, Sua PW. 2, Sheopal PW.7 and Nanga PW. 11 we find that there is evidence regarding the accused making an extra judicial confession to the extent that he had thrown the children into the well and this evidence is worthy of reliance. We are however, conscious of the fact that the evidence of extra judicial confession is a weak evidence and requires corroboration. On scrutinising the evidence further we find that this extra judicial confession is fully corroborated by the evidence of Sarmaram PW. 3 who has stated that four dead children, three on the first day and fourth on the next day were brought out from the Modiwala well from where Gokul Goojar was also brought out alive. He is a witness who has proved Ex. P. 1 to Ex. P.4, the inquest reports. Another witness is Bhugla PW. 4 who too is a witness to the inquest reports of bringing out the three dead bodies of children from Modiwala well. Prabhat PW.5 also stated that Nauranga and Mangla Goojar had gone down into the well to bring out Gokul who was alive and the three children who had died from Modiwala well. One dead child was brought out next day. Madanlal PW. Prabhat PW.5 also stated that Nauranga and Mangla Goojar had gone down into the well to bring out Gokul who was alive and the three children who had died from Modiwala well. One dead child was brought out next day. Madanlal PW. 8 has also stated that in his presence Gokul was brought out alive from Modiwala well and thereafter 3 dead bodies of children. He is also a witness to Ex.P. 1 to Ex. P.3. According to him two of the children were male and one female. Rudaram Pw. 9 is yet another witness who is a signatory to inquest reports and the site-plan. According to him the dead bodies were brought out in his presence from the well and so also accused Gokul. Nanga PW. 11 and Harphool PW. 12 have also given a similar statement and in their presence dead bodies were brought out from the well. Sheopal PW. 16 is the investigating officer who reached the place of occurrence immediately after receiving the report. He recovered a towel, Chappals, stick and one odna and in his presence he got the dead bodies brought out of Guddu, Premchand and Bidkali on 25.7.89 and that of Shankri on 26.7.89. He also prepared the inquest reports and other necessary documents. It was in his presence and under his supervision that Gokul was also brought out alive from inside the well who was shivering and his skin had corrugated. This entire evidence leads to an irresistible conclusion that the accused as well as the dead bodies of four children, namely, Shankri, Gaddu, Bidkali and Premchand had been brought out from the same well and this circumstance thus fully corroborates the extra-judicial confession of the accused. This evidence is further corroborated by the evidence of Dr. Dinesh Singh PW. 6 who has stated that cause of death of the children was Asphyxia due to drowning and further that the accused had injuries on his person and his skin was corrugated. Injury report of Gokul which has been admitted by the learned counsel appearing for the accused clearly shows that the skin of the hand and feet was corrugated and whole body must have remained immersed in water for long time and the body was cool. Injury report of Gokul which has been admitted by the learned counsel appearing for the accused clearly shows that the skin of the hand and feet was corrugated and whole body must have remained immersed in water for long time and the body was cool. According to Modi's Medical Jurisprudence the skin is corrugated only when body is immersed in water for sufficient number of hours and a careful examination of the entire evidence shows that falling into the well of the children and accused Gokul was simultaneous. All the circumstances indicated above if taken together, lead to an irresistible conclusion that it was the accused who had drowned his four children in the well and then took a suicidal jump into the well. It is thereafter that there was a will to live further in his mind but finding himself in helpless position being under 60 feet below the surface level in a well was Unable to come out and cried for help. We are therefore, in agreement with the findings of the trial court that a case for offences under S. 302 IPC and S. 309 IPC is fully made out against the accused Gokul. 18. Having arrived at the conclusion that the offence under S. 302 IPC is made out, the question which remains to be decided is as to whether in the circumstances of the present case the death sentence as proposed by the trial court should be confirmed or not ? In this connection we would like first to deal with the case law cited above. 19. In support of his contentions learned counsel for the accused Gokul has relied on Carlose 2 John and Anr. v. State of Kerala, AIR 1974 SC 1115 , Bachan Singh v. State of Punjab etc. etc., AIR 1980 SC 898 : Amruta v. State of Maharashtra and State of Punjab v. 1990 SCC (Supp1.) 67 20. In Carlose John and Anr. v. State of Kerala, AIR 1974 SC 1115 their Lordships of the Supreme Court considered that while confirming the sentence of death circumstances which led to the occurrence must be considered and if the facts reveal that. the accused were in the grip of emotional stress when they committed the murder it calls for not the extreme penalty but the same should be commuted to imprisonment for life. the accused were in the grip of emotional stress when they committed the murder it calls for not the extreme penalty but the same should be commuted to imprisonment for life. It was held that, "where the accused were in the grip of emotional stress at the time of committing murder it was not a case where death sentence would be awarded. Sentence of imprisonment for life was held adequate." 21. In Bachan Singh v. Union of India and Ors., AIR 1980 SC 898 the Constitutional Bench of the Supreme Court considered the question as to whether death penalty is violative of Articles 19 and 22 of the Constitution of India. Number of criminal appeals were decided by a majority judgement, the validity was upheld. It was held that Supreme Court should not venture to formulate rigid standards in an area it "which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in S. 354(3) Cr. P.C. can be laid down. It is held as under: "In several countries which have retained death penalty, preplanned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of 'murder' or its further classification. Then in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive' enumeration of aggravating circumstance is-possible. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons' in S. 354 (3) circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree". Dr. Chitaley has suggested these mitigating factors: "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. (2) The age of the accused. Dr. Chitaley has suggested these mitigating factors: "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. (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 the 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". There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, so that in the past Courts have-inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines-indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3) viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines-indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3) viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality, That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." 22. In Amruta v. State of Maharashtra, AIR 1983 SC 629 their Lordships considered a case where murder was premeditated and there was no justification for the murder, yet back ground in which the murder was committed was that there was a frequent quarrel between the accused and his wife-and the accused suspected the chastity of his wife. The court said that though the court does not know that there was any reason or suspicion entertained by the accused regarding his wife's chastity but it knew that accused nurtured and was labouring under the sense of grievance and was often dejected and moody presumably because of hit suspicica. He was apparently inclined to brood over the wrong suspected by him to have been done to him. Their Lordships held that when none can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. After considering all the circumstances, the court was of the opinion that though there was a murder of wife and daughter yet it was not a case for death sentence. 23. In.Moorthy v. State of Tamil Nadu, (1988) 3 SCC 207 their lordships of the Supreme Court held as under: "We have closely examined the circumstances in which the tragic event took place. The deceased Jayasambal at the time of murder was about 35 years old with a teen-aged daughter and a 12 year sold son, and the appellant was in his late 20s. She was united with the doctor through love marriage but the husband later took another wife and got 3 children from her. The appellant was employed in the hospital where the doctor Pw. She was united with the doctor through love marriage but the husband later took another wife and got 3 children from her. The appellant was employed in the hospital where the doctor Pw. 1 was posted. In this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s. The deceased was an elderly lady with two children who took a defiant attitude, defending her conduct when she was first confronted by her own daughter, which suggests that the unfortunate relationship had developed with her encouragement. When suddenly spurned by his partner, the appellant must have experienced the disappointment of a discarded lover. We do not suggest that the erring wife should not have corrected herself nor can the persistence of the appellant in the situation be appreciated, but we are trying to analyse' his psychology. His mental agitation was further fuelled by the movie showing murder after murder. The vicious effect of films picturing violence in detail on impressionable minds has been subject of serious concern for some time now, but unfortunately no effective step has been taken so far to curb the growing tendency of a section of the film industry to cash in on human weakness. And when this upsets a young man, already vulnerably disturbed, the society cannot be completely absolved from sharing the responsibility of the resulting tragedy. Proceeding further with the facts in the present case, we find that when commanded by PW.16, the appellant stopped immediately, as a result of which the life of Kavitha was saved, opened the door, came out of the room and did not attempt to escape. Considering the above circumstances appearing from the prosecution evidence, we are of the view that the sentence of death passed against the appellant under S. 302, Indian Penal Code, should be converted to imprisonment for life. Considering the above circumstances appearing from the prosecution evidence, we are of the view that the sentence of death passed against the appellant under S. 302, Indian Penal Code, should be converted to imprisonment for life. Let that be done and let all the sentences of imprisonment run concurrently." In State of Punjab v. Gurmail Singh, 1990 (supp.) SCC 67 their Lordships of the Supreme Court took a special note in cases where there are multiple murder in a family and in such cases what is generally motive, the Court held as under : "The Ghastly murders and the brutal manner in which six members of the family have been wiped out are suggestive of Vendetta against the family and not against individual members of the family" 24. In the light of the aforesaid cases if the facts of this case are examined in our opinion this is not the rarest of the rare case where the extreme penalty of sentence of death should be imposed on the accused Gokul. A perusal, of the record shows that accused had become a victim of the circumstances and his case is like that of a Neuropathetic (Sic : neuro psychotic). In the childhood he was given in adoption to one Jagannath and thus did not have the love of natural parents. At Jagannath's place he was got involved in a murder case and remained in jail for about 7 years before he was acquitted by this court. During this period he suspected that his wife stayed with his brother at his natural father's place and she gave birth to a child Prem, when he came out he was deprived of the property by his adoptive father who turned him out of the house. He thus, neither got love and affection of his natural father nor of adoptive father nor had the sincerity of his wife. Placed in that situation he left the village with his wife and started earning his own livelihood in another village Bhojpur where he lived for about a decade and his wife gave birth to four children (since murdered). Misfortune once again started in the life when he met an accident and became handicapped. Placed in that situation he left the village with his wife and started earning his own livelihood in another village Bhojpur where he lived for about a decade and his wife gave birth to four children (since murdered). Misfortune once again started in the life when he met an accident and became handicapped. His wife insisted that he should come to his natural parent's place hence he was brought to his mother's place who had refused to give the ornaments belonging to him when he had returned from jail on which there was an altercation and scuffle too. He once again suspected revival of illicit relations between Sheopal and his wife Soni and Soni's cold attitude towards him and his four children born in Bhojpur and one day after a quarrel, according to the prosecution, took place, on asking of money for the liquor he took away his four children and took a suicidal jump into the well along with four of them. The entire conduct of the accused shows that he was highly depressed and dejected before committing suicide he thought of putting an end to his four children leaving aside Prem whom he suspected to be Sheopal's daughter so that after him these four children may not be vagabonds. A foolish and stupid action but under extreme mental strain taken by him cannot be said to be a deliberate cruel act so as to call for extreme penalty of death. While considering this we are also pursuaded to take this view because of the subsequent conduct of his mother, wife and Sheopal at trial. All these three witnesses gave deliberately false statements about his conviction in the earlier case. None of them even went to the well from where he and his four children's bodies were brought out. The conduct of these three witnesses show their hatred or at least cold behaviour towards the accused and his four children and all these circumstances taken together convinces us that it is not a fit case for confirming the penalty of death sentence and the death sentence should be substituted by imprisonment for life. 25. Consequently the appeal filed by the accused Gokul is partly allowed and the reference made is partly rejected. 25. Consequently the appeal filed by the accused Gokul is partly allowed and the reference made is partly rejected. The conviction of the accused-appellant Gokul is upheld for offence under Sections 302 and 309 IPC but the sentence of death is substituted by imprisonment for life and a fine of Rs. 1000/-, in default of payment of which to further undergo 3 months' rigorous imprisonment. His conviction and sentence for offence under S. 309 IPC is maintained. Both the sentences shall run concurrently. 26. Before parting with this judgment we would like to convey our sincere thanks and place on record our appreciation for the counsel of the appellant, Shri Paras Kuhad, who despite, his having heavy engagements volunteered to offer himself to argue this appeal as an amicus curiae and argued this appeal at a great length with ability and did full justice to the brief he held.Reference Partly Rejected, Appeal Partly Allowed. *******