State by Public Prosecutor v. Govindasami — 1997 DIGILAW 991 (MAD)

Judgment : Y. Venkatachalam, J. This criminal appeal is preferred by the State of Tamil Nadu, represented by learned Additional Public Prosecutor against the order of acquittal of the accused in Sessions Case No.104 of 1985 on the file of learned Additional Sessions Judge Erode. 2. The brief facts of the case are as follows: On 30.5.1984 at about 11.00 p.m., the accused is alleged to have committed the murder of five persons with a deadly weapon one after another on account of a property dispute. The report about the incident was given by a milk vendor at the early hours of the next day, which is a very vital document. The occurrence is alleged to have taken place in front of the house of the deceased Nagamalai Gounder at Kondayankadu in Kondayampalayam village on the fateful day. The accused is the elder brothers son of the deceased Nagamalai Gounder. The deceased Poonathal alias Ramathal is the wife of the deceased Nagamalai Gounder. The deceased Balasubramaniam and Murthi alias Ramakrishnan are the sons of the deceased Nagamalai Gounder and the deceased Selvi alias Anbu Selvi is the daughter of the deceased Nagamalai Gounder. A charge sheet was filed before the Second Class Magistrate, Gobichettipalayam. The case was taken on file as P.R.C.No.22 of 1985 and the same was committed to Sessions. The accused person and the deceased persons were living within the jurisdiction of Puliampatti Police Station. The deceased persons were all living in the outskirts of the village. There arose a property dispute between the accused and the deceased Nagamalai Gounder with reference to the property in Survey No.26. On the other hand, it was alleged by the accused person-Govindasamy that Nagamalai Gounder and his two sons Balasubramanian and Moorthy (now deceased) obtained his signature in a stamped blank bond paper at the point of knife just on the evening hours prior to the night of the occurrence presumably to be utilised by the deceased against the accused. 3. Learned Additional Sessions Judge, Erode after following the procedure laid down under the relevant provisions of law examined P.Ws.1 to 28. On behalf of the accused no defence witness was examined. The accused person himself has not chosen to examine himself as the defence witness. 4. 3. Learned Additional Sessions Judge, Erode after following the procedure laid down under the relevant provisions of law examined P.Ws.1 to 28. On behalf of the accused no defence witness was examined. The accused person himself has not chosen to examine himself as the defence witness. 4. Considering all the material both oral and documentary, learned Additional Sessions Judge came to the conclusion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Therefore, the accused was acquitted. Aggrieved by the said finding of learned Additional Sessions Judge the State has preferred the present appeal. 5. Before us, both the Additional Public Prosecuto representing the State and learned counsel for the respondent/accused have argued in detail with reference to their respective contentions. We have also considered the rival submissions made by the counsel appearing on either side. 6. The point that arises for consideration in this appeal is whether the findings given by learned Additional Sessions Judge suffer from any patent error of law, perversity of approach and illegality. 7. Before we proceed further with regard to the legal aspects involved in the matter, we would like to examine whether there was any motive on the part of the accused/respondent with regard to the commission of the crime beyond all reasonable doubt. The law is very clear that conviction can be based on the clinching evidence of a direct eye witness. Here there is one direct witness to the occurrence. The law is also clear that in cases where dying declarations had been recorded by a Judicial Magistrate on the basis of the acceptable evidence, conviction may be imposed on the accused persons by the Sessions Judge. In the instant case, the prosecution relied upon the circumstantial evidence to prove the guilt of the accused. Admittedly, the accused person is alleged to have committed the murder of five members in one family purely on account of a property dispute with the help of a deadly weapon within a span of half an hour. The deceased persons were all residing in a farm house separately and there were no family members or residents or permanent inhabitants in and around the place of the occurrence. As observed earlier, the prosecution relied upon the circumstantial evidence. 8. The deceased persons were all residing in a farm house separately and there were no family members or residents or permanent inhabitants in and around the place of the occurrence. As observed earlier, the prosecution relied upon the circumstantial evidence. 8. Now, we would like to examine the legality and propriety of the evidence of the witnesses with regard to the commission of the offence in seriatim. P.W.1, the resident of Kondayampalayam is aware of the dispute between the accused party and the deceased parties with regard to a division of property. He was duly informed by P.W.3 about the murder of the deceased persons. P.W.1 in fact saw the dead body of one of the sons of the deceased Nagamalai Gounder with injuries and similarly the daughter, viz., Selvis deadbody also with injuries was seen by the first witness viz., P.W.1. It is his specific evidence that he saw the accused person going in a cycle with a deadly weapon in his hand on the date of occurrence. Therefore, his evidence cannot be disbelieved and rejected. Likewise, both P.Ws.2 and 3 wife and husband also saw the dead bodies. P.W.4 another resident of Kondayampalayam made an attempt to settle the dispute between both the accused and the deceased parties. But it was not successful. Similarly, P.Ws.5 and 6 were also aware of the partition dispute between the accused and the deceased parties. P.W.7, the Village Administrative Officer of Varapalayam registered Ex.P-1 complaint on the basis of the complaint given by P.W.1 with regard to the commission of the offence. He forwarded the complaint along with a report to the Sub Inspector of Police attached to Puliampatti, who came and inspected the scene of occurrence and prepared an observation mahazar, in which P.W.7 and one Arumugham have signed. The observation mahazar is marked as Ex.P-5. Thereafter, the material objects, viz., M.Os. 1 to 17 were seized and recovered. All other witnesses have also spoken .to the dispute with regard to the division of property between the accused and the deceased party and the murder of the family members of one family, viz., Nagamalai Gounder. It is pertinent to note that P.W. 17 Doctor attached to the Government Hospital at Sathyamangalam also examined the dead body of Poonathal on the basis of Ex.P-3 requisition and found neck injuries on her. It is pertinent to note that P.W. 17 Doctor attached to the Government Hospital at Sathyamangalam also examined the dead body of Poonathal on the basis of Ex.P-3 requisition and found neck injuries on her. Likewise, P.W.18, Doctor Marimuthu also noted several injuries on the body of the deceased Nagamalai Gounder in pursuance of Ex.P-17 requisition received by him in that regard. The Police Officials and other authorities have also registered cases with regard to the occurrence. It is the further case of the prosecution that there is every connecting link between the accused and the commission of the offence till the recovery of the deadly weapon used by the accused for the commission of the offence. It is also not a case, where the accused person was not afforded with an opportunity to cross-examine the witnesses. The accused admittedly used an aruval for the commission of the offence. As rightly pointed out by the prosecution, since there were no residential houses in and around the place of occurrence, no alarm or noise was raised during the time of commission of the offence by the accused person. It was only on the next day the murder of the deceased parties were made known by a milk vendor and P.W.1, who gave a report about the occurrence involving the lives of five members of one family on account of a property dispute. In that report, the names and other particulars of the accused person was given in detail. The weapon used by the accused party was also recovered with blood stains. The person before whom the recovery of the weapon was made is an independent witness and not an interested witness of the prosecution. That witness has also spoken to about the seizure of the weapon and other material objects from the scene of occurrence. It is another significant aspect to note that the seized weapon, viz., the knife contained the human blood as identified correctly by the Serologist in his report. It is also represented before us that P.W.13 is none other than the motor of the accused. It is another significant aspect to note that the seized weapon, viz., the knife contained the human blood as identified correctly by the Serologist in his report. It is also represented before us that P.W.13 is none other than the motor of the accused. It is also interesting to note that when she was examined with reference to the incriminating circumstances as per the provisions of Sec.164 of the Code of Criminal Procedure she gave a statement before the Magistrate that the accused is none other than her own son and that it was he who killed the deceased party, as informed by him. The depositions of P.W. 13 were also recorded by the Judicial Magistrate concerned. Even before the learned Sessions Judge, who tried the case, P.W.13 reiterated her earlier stand and learned Additional Public Prosecutor treated her as hostile witness. According to Public Prosecutor even though before the court. P.W.13 stated that she is the mother of the accused, subsequently she turned hostile and her depositions cannot be ignored with regard to the commission of the offence even though she turned hostile. According to learned Additional Public Prosecutor the accused should have been found guilty for the commission of the offence punishable under Sec.302, I.P.C. 9. Now, we would like to discuss the circumstantial evidence placed by the prosecution before the court. The law is well-settled that in a case where there are eye-witnesses to the occurrence, the motive will not play important role. But when the prosecution rests their case on circumstantial evidence, the prosecution has to establish motive for the offence. In this case, P.W.1 who is related to both the deceased and accused, has stated in his evidence that the deceased Nagamalai and the father of the accused owned lands and that there were disputes between them with regard to boundary. It is also in the evidence of P.W. 1 that he and other Panchayatdars attempted to settle and dispute between the deceased family and the accused family. In cross-examination also, he has stated that the disputed 30 cents of land were comprised in bits and that those lands were divided and that stones were also installed. P.W. 1 had also stated that he owns land near the disputed land. As already stated, the accused is none other than the brothers son of deceased Nagamalai. In cross-examination also, he has stated that the disputed 30 cents of land were comprised in bits and that those lands were divided and that stones were also installed. P.W. 1 had also stated that he owns land near the disputed land. As already stated, the accused is none other than the brothers son of deceased Nagamalai. It is no doubt true that P.W.1 had admitted in cross examination that there would be dispute between him and the accused occasionally regarding grazing of cattle. But, it cannot be said that P.W.1 has got motive to implicate the accused due to above petty quarrel. If really, P.W.1 wanted to implicate the accused with the offence, he would have stated that he saw the occurrence with his own eyes. But that is not the evidence of P.W.1. Therefore, the evidence of P.W.1 with regard to motive cannot be brushed aside on the ground that there were some petty quarrel between P.W.1 and accused. 10. P.W.4 has stated that about 1 1/2 years age, the mother of the accused complained to him about the boundary dispute and grazing of cattle of the accused and that he and others mediated the matter and settled the dispute and that about 6 months before the date of occurrence, he and other Panchayatdars mediated the dispute between the deceased family and the accused. P.W.4 has no motive to dispose falsehood against the accused. P. W.5 has also stated that he and P.W.4 and others settled the dispute by effecting partition. P.W.7 the Village Administrative Officer has stated that the mother of the accused owned 3 acres of land and that the deceased Nagamalai owned 5 acres and that both parties are having joint patta in R.S.26/6 and R.S.26/8. P.W.8 is the son of the deceased Nagamalai. He has stated that there were disputes between his family and the accused family with regard to lands. Thus, the evidence referred to above will show that there were disputes between the accused family and deceased family with regard to boundary. 11. P.W.8 is the son of the deceased Nagamalai. He has stated that there were disputes between his family and the accused family with regard to lands. Thus, the evidence referred to above will show that there were disputes between the accused family and deceased family with regard to boundary. 11. The trial court has observed that there are contradictions between the evidence of P.W.4 and P.W.5 and that P.W.7 has stated that the lands are in joint patta and that on perusal of Exs.P-2 and P-3, it will show that the lands are comprised in joint patta and that there was partition between the parties long ago and that therefore, there would not be any boundary dispute between the parties. Even assuming that the lands were divided long ago, it cannot be said that there would not be any dispute at all between the sharers regarding the boundary. Further, we cannot expect the witness to give arithmetical data with regard to disputes between the parties, especially when the witnesses have come to court to give evidence three years after the date of occurrence. Thereafter, the reasons given by the trial court for disbelieving the evidence of P.Ws.1, 4 and 5 cannot be accepted. 12. The prosecution also relies upon the recovery of promissory note from the accused, after the date of occurrence, M.O.20 is the said promissory note. 13. P.W.6, who is the native Doctor of Poonampalayam, has stated in his evidence that shortly two days before the date of occurrence, he saw Nagamalai Gounder and accused quarrelling with each other and that at that time, the accused told him that his signature was obtained in a blank promissory note and that with the aid of the said promissory note, he was harassed by the deceased Nagamalai. Nothing worth-mentioning is elicited from his cross-examination to discredit his testimony. On careful reading of the entire evidence of P.W.6, it is clear that P.W.6 has no motive to implicate the accused. It is significant to note that the above promissory note was recovered from the accused by Investigating Officer, P.W.9, who is employed in Erode Collectors Office, has stated that on 4.6.1984 when he went to Puliyamapatty bus stand, the accused was enquired by the Investigating Officer and the accused also handed over the promissory note and a lungi and that the same were recovered under mahazar Ex.P-8. It is seen that the Revenue Stamp is affixed in the above promissory note. The evidence of P.W.9 is also corroborated by the evidence of Investigating Officer. The above promissory note and the admitted signature of the accused were sent for expert opinion. But the handwriting expert did not express any opinion in his report Ex.P-31. The trial court has observed that it is stated in Ex.P-31, that it is not possible to express any opinion regarding the authorship of the signature. The trial court has observed that in the promissory note, the signature is written as R.Govindasamy. The fathers name of the accused is ‘Ramasamy. Therefore, it is probable that the name R.Govindasamy’ is written in that promissory note. The recovery of the promissory note from the custody of the accused as spoken to by P.W.9 and investigating officer cannot be disbelieved. Since the evidence of P. W.6 will clearly show that the accused told him two days prior to the date of occurrence that his signature was obtained in a blank promissory note by deceased Nagamalai. If the evidence of P.W.6 is considered along with the evidence of P.W.9, it will clearly show that the deceased Nagamalai obtained a promissory note from the accused and that is why the promissory not was recovered from the custody of the accused, after the date of occurrence. 14. It is contended by the learned counsel for the accused that if really the accused removed the promissory note from the house of the deceased, he would not have kept it in his pocket for about four days and that on the other hand, he would have destroyed the above promissory note. It cannot be disputed that the culprits at some time would leave some clue to connect him with the offence. After removing the promissory note from the house of the deceased Nagamalai, the accused had kept the same in his pocket for the reasons known to him only. At any rate, it cannot be said that keeping the promissory note for about four days after the date of occurrence is an unusual circumstance. 15. M.O.1 is the HMT. Watch. P.W.16, the Inspector has stated in his evidence that on 30.5.1984 at about 1.30 P.M. he went to the spot and recovered M.O.1 and other materials under Mahazar Ex.P- 6. 15. M.O.1 is the HMT. Watch. P.W.16, the Inspector has stated in his evidence that on 30.5.1984 at about 1.30 P.M. he went to the spot and recovered M.O.1 and other materials under Mahazar Ex.P- 6. P.W.7, former Village Administrative Officer of Varapalayam has stated in his evidence that the above watch M.O.1 was recovered in his presence under mahazar. P.W.8, the son of the deceased Nagamalai has stated that M.O.1, watch did not belong to his family. The evidence of P.W.7 and Investigating Officer will show that M.O.1 watch was recovered at the scene of occurrence. 16. P.W.8 has stated that the torch light recovered by the Investigating Officer belongs to his family. But he would assert that the watch M.O.1 did not belong to his family. P.W.11, who is the conductor in Jeeva Transport Corporation has stated that his uncle purchased the watch for him and that the word ‘Cheran’ is written on the watch and that he sold the said watch to the accused for Rs.240 two years prior to the date of occurrence. In cross-examination, he has stated that there are no special marks to show that he sold the said watch to the accused and that he did not see the accused, after he sold the watch to him. However, he has admitted that he saw the accused wearing the above watch or 15 days before the date of occurrence. P.W.11 is also the resident of Kondaiyampalayam. He is employed in a Transport Corporation. It is admitted that the deceased was residing at Kondaiyampalayam Village. He has no motive to depose against the interest of the accused. The evidence of P.W.1 that he sold M.O.1 watch to the accused, cannot be rejected. P.W.11 is able to identify the said watch in the court. Of course, except the numbers and the name ‘Cheran’, there are no indications to show that the watch recovered at the scene of occurrence belonged to the accused. But, P.W.11 has clearly stated that he saw the accused wearing the above watch 10 or 15 days prior to the date of occurrence. It is significant to note that it is not even suggested to P. W.8 in the cross examination that the watch M.O.1 belonged to their family and not the accused. But, P.W.11 has clearly stated that he saw the accused wearing the above watch 10 or 15 days prior to the date of occurrence. It is significant to note that it is not even suggested to P. W.8 in the cross examination that the watch M.O.1 belonged to their family and not the accused. The defence counsel was careful enough to suggest to P.W.8 that M.Os.11 to 16 and 18 did not belong to the family of P.W.8. But there is no suggestion with regard to M.O.1. Therefore, the evidence of P.W.8 coupled with the evidence of P.W.l, will prove the case of the prosecution that M.O.1 watch recovered from the scene of occurrence belonged to the accused. 17. The trial court has observed that a watch like M.O.1 would be given to the conductors employed in Cheran Transport Corporation and that P.W.11 is unable to give specific mark to identify the above watch and that he did not produce any receipt to prove that he sold the watch to the accused. The fact that P.W.11 is unable to produce receipt for selling the watch to the accused is not a ground to reject his testimony. Therefore, the reasons given by the trial court for disbelieving the evidence of P.W.11 cannot be accepted as already stated, P.W.11 has no motive to depose falsehood against the accused. Therefore, we accept the evidence of P.W.11 and hold that he sold M.O.1 to the accused and that M.O.1 was recovered from the scene of occurrence. 18. It is the case of the prosecution that they also recovered M.Os.11 to 14, Chappels at the scene of occurrence. P.W.8 has stated that his parents and sisters were wearing the above chapals. Whether or not the above chapals belong to the deceased, will not assume much importance. However, it is clear that the some of the chapals recovered from the scene of occurrence contain human blood group ‘B’, which is evidence from the Serologists report. Recovery of the above chapals was relied upon by the prosecution to show that no other person would have entered the deceaseds house. As already stated, the recovery of the chapals at the scene of the occurrence will not be a circumstantial evidence to connect the accused with the offence. 19. Prosecution relies upon another clinching circumstances to prove the charge levelled against the accused. As already stated, the recovery of the chapals at the scene of the occurrence will not be a circumstantial evidence to connect the accused with the offence. 19. Prosecution relies upon another clinching circumstances to prove the charge levelled against the accused. It is the case of the prosecution that the weapon M.O.22 was recovered at the instance of the accused, P.W.9, Assistant working in Erode Collectors Office, has stated in his evidence that the accused gave a statement, the admissible portion of which is marked as Ex.P-7 and that on the basis of the above statement, the accused took the to the house of P.W.14, the Astrologer and that the accused took a gunni bag from the front room of the house of P.W.14 and the accused took the cycle along with gunni bag. The above properties were recovered by the Inspector under mahazar, Ex.P-9. The evidence of P.W.9 is also corroborated by the evidence of P.W.14. P.W.14 has stated in his evidence that on 31.5.1984 at about 7.00 a.m., the accused came to his house with a cycle and that he also gave Rs.2 for getting astrologers opinion and that the accused parked the cycle in his house stating that he would take back the cycle in the evening and that when he asked the accused as to the contents of the gunny bag, he told him that there are coins in the bag and that subsequently, the accused did not return and that after four days, the police and the accused came to his house and that they entered into the house and the accused took the cycle form his house and that M.O.21 is the cycle and M.O.22 is the weapon and M.O.18 is the torch light. The evidence of P.W.14, coupled with the evidence of P.W.9 will show that the weapon M.O.22 was recovered from the house of P.W.14 at the instance of the accused. In cross-examination, P.W.14 has stated that he saw the accused on the day when he parked the cycle and that thereafter, he saw the accused in the court. It is no doubt true that number of persons would visit the house of P.W.14. As he happened to be an astrologer, he could not remember all the persons, who came to his house. But P.W.14 has also stated that the accused came to his house for getting astrological opinion. It is no doubt true that number of persons would visit the house of P.W.14. As he happened to be an astrologer, he could not remember all the persons, who came to his house. But P.W.14 has also stated that the accused came to his house for getting astrological opinion. Hence, he is able to identify the accused. It is only suggested to P.W.14 that he has come forward to give evidence at the instigation of the police. P.W.14 is an astrologer by profession. We cannot expect an astrologer to implicate an innocent person with the offence. On going through the entire evidence of P.W.14, we are satisfied that his evidence is true, convincing and acceptable. The trial court has observed that P.W.14 in the first instance, has stated that M.O.21 was not the cycle kept in his house by the accused and that after sometime, he has stated that M.O.21 is the cycle. It is seen from the evidence of P.W.14 that when the above cycle was shown to him in court, he has stated that M.O.21 is not the cycle kept in his house and that after the same was show to him under the light, he identified M.O.21, P.W.9 has stated that in the cycle, the name ‘K.R.Govindasamy’ is written. It cannot be denied that the letter ‘K’ is the first letter of the village Kondampalayam. The letter ‘R’ is the first letter of the name of the father of the accused, that is, Ramasamy. Therefore, it cannot be contended that the above material objects would not have been recovered from the house of P.W.14, P. W.27, the Inspector has stated that the accused produced the above objects from the room situated in the front portion of the house. But, P.W. 14 has stated that the police and the accused entered into the house and that the accused took the cycle from his house. The above contradiction appears to be a minor one, which would not affect the evidence. But, in other aspects, the evidence of P.Ws.9 and 14 is corroborated by the evidence of P.Ws.27 and 14 is corroborated by the evidence of P.W.27. At this stage, it would be relevant to note other clinching circumstance to prove that M.O.22 was the weapon used in the commission of the offence. 20. But, in other aspects, the evidence of P.Ws.9 and 14 is corroborated by the evidence of P.Ws.27 and 14 is corroborated by the evidence of P.W.27. At this stage, it would be relevant to note other clinching circumstance to prove that M.O.22 was the weapon used in the commission of the offence. 20. P.W.1 has stated that on the previous day of the date of occurrence at about 10.30 or 11.00 p.m. he saw the accused with a knife going towards Nagamalai Thottam. The above weapon that is bill hook was sent to Chemical Examiner and in the Serologists report, Ex.P-24 it is stated that the above weapon contained human blood group ‘B’. In the above report, it is also stated that the skirt and earth contained human blood group ‘B’ The above Serologists report, if considered along with the evidence of P.W.1, who saw the accused going towards the deceaseds land with a weapon, coupled with the fact that the above weapon was recovered in the house of P.W.14 at the instance of the accused, will lead to the irresistible conclusion that only the accused has committed the offence and that M.O.22 was used in the commission of the offence. 21. It is no doubt true that lungi, that is M.O.19, recovered from the accused, does not contain human blood group ‘B’. But, it is stated in the Chemical Examiners report that the lungi also contained human blood. The trial court has observed that P.W.1 has stated that he saw the accused on 29.5.1984 at 10.30 P.M. with the weapon and that he did not state that he saw the specific weapon, that is, M.O.22. We cannot expect the witness to give precise description of the weapon, When the accused was going with a weapon towards the land, P.W.1 would not have suspected that the accused was carrying weapon with some mala fide intention. The fact that P.W.1 is unable to say that the accused was carrying M.O.22, cannot be a valid reason to reject his testimony. As already stated, the blood group found in the weapon tallies with other material objects. It is clearly established that the above weapon was recovered from the house of P.W.14, at the instance of the accused. The fact that P.W.1 is unable to say that the accused was carrying M.O.22, cannot be a valid reason to reject his testimony. As already stated, the blood group found in the weapon tallies with other material objects. It is clearly established that the above weapon was recovered from the house of P.W.14, at the instance of the accused. If all the above circumstances are considered cumulatively, we have no hesitation in holding that it is M.O.22 which was used in the commission of the offence. 22. The prosecution has adduced evidence to show that the accused purchased the weapon from P.W.10. P.W. 10 has stated that at about 3 1/2 years ago, he sold billhook to the accused for Rs.20 and that the weapon is M.O.22. It may not be possible for a manufacturer of weapon to say that particular knife was sold to a particular person. The trial court rejected the evidence of P.W.10. It is not doubt true that the evidence of P.W.10 appears to be artificial. But, other evidence which are narrated above, will clearly show that M.O.22 was utilised in the Commission of the offence and that the same was recovered art the instance of the accused. The fact that M.O.22 contains blood group ‘B’ will prove the case of the prosecution that the accused committed offence with M.O.22. 23. The trial court has observed that there is no evidence to show that M.Os.19 and 20 were owned by the accused and that it is artificial to state that the accused was wearing blood stained lungi for about 12 days and with regard to M.O.20, the promissory note, the trial court has observed that the above promissory note would have been taken from the house of the deceased and that if there is any truth M.O.20 was in the house of the deceased, there would have been blood stains on the promissory note. It is the case of the prosecutor that after the commission of the offence, the accused was absconding. Therefore, the fact that the accused was wearing lungi for four days will not show that the evidence adduced by the prosecution is artificial. The fact that M.O.20 does not contain any blood stain will not show that the above promissory note would not have been taken from the house of the deceased. Therefore, the fact that the accused was wearing lungi for four days will not show that the evidence adduced by the prosecution is artificial. The fact that M.O.20 does not contain any blood stain will not show that the above promissory note would not have been taken from the house of the deceased. As already stated, the evidence of P. W.6 will clearly show that two days prior to the date of occurrence, the accused and deceased Nagamalai were quarreling with each other and that the accused told the witness that his signature was obtained in a blank promissory note by the deceased Nagaraj. It is thus clear that the promissory note M.O.20 was ‘removed by the accused from the house of the deceased. 24. The trial court disbelieved the evidence of witness with regard to confession statement recorded under Sec.27 of the Evidence Act. The trial court has observed that even before the arrival of P.W.9, the accused would have been examined. But P.W.9 has stated that only after he went to the spot, confession statement was recorded and that when he went there, the Inspector and another witness Arumugham were already there. P.W.27 has also stated that he arrested the accused at the bus stand and that at that time, P.W.9 and Arumugham were present. As already stated, when the evidence is recorded in court after 3 or 4 years, from the date of occurrence, there would be contradictions with regard to certain matters. Therefore, the above contradictions pointed out by the trial court will not render the evidence of P.W.9 unbelievable. 25. It is further contended on behalf of the accused that thought the material objects were recovered from the house of P.W. 14, his signature was not obtained in the mahazar. As already stated, P.W.9 has attested the mahazar. The omission to obtain the signature of P.W.14 cannot be said to be fatal to the case of the prosecution. 26. The evidence of Doctor, who conducted postmortem will show that the deceased sustained brutal injuries on vital parts of the body. The trial court has observed that single person would not have murdered five persons at the same time and that it is highly five persons at the same time and that it is highly unbelievable that a single person would have attacked without sustaining any injuries on his body. The trial court has observed that single person would not have murdered five persons at the same time and that it is highly five persons at the same time and that it is highly unbelievable that a single person would have attacked without sustaining any injuries on his body. The occurrence took place after 11.00 p.m. when the inmates of the house were sleeping. It cannot be said that it would be impossible for a single person to attack five persons in one and the same transaction. Therefore, the finding given by the trial court that a single person would not have murdered five persons cannot be accepted. As already stated, there are not other residential houses around the house of the deceased. Therefore, even if the victims raise any noise, no one would have noticed the noise and entered the house. In the above circumstances, the reasons given by the trial court for disbelieving the evidence is not sustainable. 27. It is pointed out on behalf of the accused that in Ex.P-1, the report, it is stated that Govindasamy, that is the accused, and his brother would have committed the murder along with some other persons. The trial court placed reliance upon the above sentence for holding that the evidence adduced by the prosecution could not be true. The person, that is P.W.1, who gave Ex.P-1 is not an eye witness. He has only mentioned the names of the accused and others on suspicion and during investigation, it is established that the accused had committed the offence. Therefore, form the above facts, it cannot be inferred that some other persons would have participated in the commission of the offence. 28. In the course of cross-examination, P.W.28 has stated that he came to know from his investigation that P.W.8 was projected as an eye witness during the first investigation. Relying upon the above evidence, the trial court has observed that the prosecution created evidence from the inception. But the trial court failed to read the evidence of P.W.26 and P.W.10. P.W.26 has clearly stated that he did not make any steps to project P.W.8 as an eye witness. It is not clear on what basis P.W.28 has come forward to say that P.W.8 was project as an eye witness during first investigation. 29. But the trial court failed to read the evidence of P.W.26 and P.W.10. P.W.26 has clearly stated that he did not make any steps to project P.W.8 as an eye witness. It is not clear on what basis P.W.28 has come forward to say that P.W.8 was project as an eye witness during first investigation. 29. From the facts discussed above, it is proved that the accused has got motive to murder the deceased. It is also proved that the accused was carrying weapon shortly before the date of the occurrence, it is also proved that the weapon M.O.22 contained human blood group ‘B’ which tallies with other material objects and that the material object was recovered at the instance of the accused. It is also proved that M.O.I watch recovered at the scene of occurrence . belonged to the accused and that the promissory note was also recovered from the accused. It is not even suggested to P.W.8 that the deceased had other enemies in the village. Therefore, if all the above circumstances are taken into consideration cumulatively, it would lead to the one and only conclusion that it is the accused, who murdered five persons. 30. It is also contended on behalf of the appellant that the mother of the accused, P.W.13 has turned hostile. It is stated that P.W.13 has stated before the Magistrate that her son, the accused, told her that he had finished five persons. But she has not corroborated the same in the evidence before Court. As P.W.13 is the mother of the accused, we cannot expect her to depose against her own son. Therefore, the evidence of P.W.13 will not advance the case of either of the parties. 31. The contents of Ex.P-1 would go to show that the dead bodies of the deceased persons were found available in the scene of occurrence. Names of the accused, deceased persons and other particulars of the occurrence are also furnished. With regard to the recovery of the weapon, as discussed already, the testimony of P.W.14 is acceptable and reliable. 32. 31. The contents of Ex.P-1 would go to show that the dead bodies of the deceased persons were found available in the scene of occurrence. Names of the accused, deceased persons and other particulars of the occurrence are also furnished. With regard to the recovery of the weapon, as discussed already, the testimony of P.W.14 is acceptable and reliable. 32. Coming to the arguments advanced by learned counsel for the accused/respondent, we see that the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved, must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Our elaborate discussion as above would go to show that the prosecution has brought home the guilt to the accused beyond all reasonable doubt. 33. Though the learned Additional Public Prosecutor relied upon various decisions in support of his contentions, we would like to refer to the most important decision reported in State of A.P. v. S.Chandraiah State of A.P. v. S.Chandraiah , A.I.R. 1986 S.C. 1899:1986 Crl.LJ. 1503: (1986)3 S.C.C. 637 : (1986)3 Crimes 367: (1986)3 Supreme 483 were in an appeal preferred against the acquittal, came up for consideration before the Andhra Pradesh High Court. Learned Additional Public Prosecutor in all fairness contended that where direct evidence is available, motive aspect is immaterial and while dealing with an appeal against acquittal, the court naturally keep in mind that presumption of innocence in favour of the accused reinforced, as may be by judgment of acquittal. 34. Coming to the arguments advanced by learned counsel for the respondent/accused, we would like to refer the following decisions cited by the learned counsel for the respondent/accused. In re. , (1950)1 MLJ. 663 : A.I.R. 1950 Mad. 714, State by Public Prosecutor v. Samikannu State by Public Prosecutor v. Samikannu , 1996 MLJ. (Crl.) 262 and the decisions of the Apex Court in Raja Khima v. State of Saurashtra Raja Khima v. State of Saurashtra , (1956)1 MLJ. (S.C.) 135: A.I.R. 1956 S.C. 217:1956 S.C.J. 243 and Akhilesh Hajam v. State of Bihar Akhilesh Hajam v. State of Bihar , 1995 MLJ. (Crl.) 262 and the decisions of the Apex Court in Raja Khima v. State of Saurashtra Raja Khima v. State of Saurashtra , (1956)1 MLJ. (S.C.) 135: A.I.R. 1956 S.C. 217:1956 S.C.J. 243 and Akhilesh Hajam v. State of Bihar Akhilesh Hajam v. State of Bihar , 1995 MLJ. (Crl.) 544 and on going through the same we find that they are not relevant on the facts and in the circumstances of the case on hand. 35. As already stated, the circumstantial evidence adduced by the prosecution will show that the accused murdered Nagamalai and four others in his family. On going through the entire evidence, we are satisfied that except few minor contradictions, the evidence is satisfactory and convincing. For the above reasons, we hold that the finding of the trial court that the charges framed against the accused have not been proved, cannot be accepted. The trial court failed to consider the above clinching circumstantial evidence. Hence, we hold that the judgment rendered by the trial court has to be set aside. 36. In the result, the appeal is allowed. As we have found that the respondent/accused is guilty for the offence punishable under Sec.302, I.P.C. (5 counts), as required under Sec.248(2), Crl.P.C, it is the duty of the court to hear the accused about the nature of the punishment that is going to be imposed on him. 37. Accordingly, the appeal is posted at 10.30 a.m. on 27.8.1997 for the appearance of the accused before this court for hearing him with regard to the nature of the punishment. The appeal will be taken up on 27.8.1997 at 10.30 a.m. for that purpose. The bail bonds of the accused stands cancelled with immediate effect. We direct the Registry to issue N.B.W. against the accused/respondent to execute the same through police with a direction to produce the accused/respondent before this Bench at 10.30 a.m. on 27.8.1997. 38. The learned Advocate for the accused/respondent at this stage requested the Bench to post this matter other than 27th August, 1997 as he is otherwise engaged for three days from 27th August, 1997. 39. In the said circumstances we direct the Registry to post this matter on 2nd September, 1997. The same date i.e., 2nd September, 1997 equally applies to production of the Accused/respondent at 10.30 a.m. before us. 40. Appeal against the acquittal allowed. 41. 39. In the said circumstances we direct the Registry to post this matter on 2nd September, 1997. The same date i.e., 2nd September, 1997 equally applies to production of the Accused/respondent at 10.30 a.m. before us. 40. Appeal against the acquittal allowed. 41. On 21.8.1997 orders were pronounced on the appeal preferred by the State as against the acquittal of the accused/respondent by the Additional Sessions Judge, Erode in Sessions Case No.104 of 1985. By virtue of that order N.B.W. was issued to produce the accused/respondent before this Court on 2.9.1997. 42. Today i.e., on 2.9.1997, the police concerned produced the respondent/accused before this Division Bench. As required under law under Sec.235(2), Crl.RC. the finding of the Bench to gather with previous circumstances have been explained to the respondent accused and we informed the Accused as to whether he is going to say anything with regard to the quantum and nature of the punishment we are going to impose on him. 43. As the appeal preferred by the State as against the acquittal of the accused/respondent and as this Bench found the accused/respondent guilty for the offence punishable under Sec.302 of the Indian Penal Code for killing five human beings one after another as required under law under Sec.235(2) of the Code of Criminal Procedure, we have to hear the respondent/accused with regard to the quantum of punishment that we are going to impose on him. 44. The facts and circumstances under which the accused was produced before us today by the police concerned and also the fact to the effect that he was found not guilty by the Additional Sessions Judge at Erode, but by virtue of the appeal preferred by the State as against his acquittal, having heard the arguments on behalf of the respondent/accused and the Additional Public Prosecutor, the court came to the conclusion that the accused found guilty for the offence punishable under Sec.302 of the Indian Penal Code. The above contents have been made known to the accused in Tamil language, the language which is known to the accused and his answer was recorded to that extent. Question: What do you say with regard to the quantum of punishment. This quantum is put to the Rept. Accused as required under law under Sec.235(2), Crl.P.C. Answer: “Tamil” 45. The accused was questioned with regard to the offence and the punishment to be imposed on him. Question: What do you say with regard to the quantum of punishment. This quantum is put to the Rept. Accused as required under law under Sec.235(2), Crl.P.C. Answer: “Tamil” 45. The accused was questioned with regard to the offence and the punishment to be imposed on him. He has stated that; “I am innocent. I am married. I am having son aged about 2 years and a female child was born 10 days before and therefore I may be shown mercy.” (The Tamil version was translated by Hon’ble Justice V.Bakthavatsuiu, J.) 46. After hearing the arguments of the learned Additional Public Prosecutor who argued the matter on behalf of the State and preferred this appeal and after hearing the arguments of the learned Advocate for the respondent/accused, this Court gave finding to the effect that the appeal is allowed. Thereafter by virtue of the order, of this Court, dated 21.8.1997, the orders were pronounced allowing the appeal preferred by the State. Thereafter after pronouncing the order, a direction was given to the registry to receive N.B.W. in order to secure the presence of the respondent/accused and to produce him before this Court today i.e., 2.9.1997 at 10.30 a.m. Accordingly after execution of the warrant, the respondent/accused was produced before the Division bench at 10.30 a.m. Thereafter as required under Sec.235(2), Crl.P.C, the facts and circumstances under which he was brought before the Court by the Police narrating the history of the case to the effect that the respondent/accused having faced the trial for the murder of 5 deceased was found by the trial Judge not guilty of the offence charged with the against that, the State preferred an appeal by virtue of allowing that appeal he was produced before this Court. Thereafter after explaining each and every circumstances that led him to place before the court by the police in the language known to him and a question was put to him as to whether he is going to say anything with regard to the quantum of punishment that is going to be imposed on him. The appellant/accused answered that he is innocent. He is a married man and on today he is aged about 37 years and he was already blessed with a child and 10 days before from today, a female child was born. That answer has been recorded. The appellant/accused answered that he is innocent. He is a married man and on today he is aged about 37 years and he was already blessed with a child and 10 days before from today, a female child was born. That answer has been recorded. Thereafter as required under law, the arguments of the learned advocate for the respondent/accused was elaborately heard. For giving finding, we direct the registry to post this matter on 9.9.1997 as 5th, 6th and 7th are public holidays and on 8th, we are not sitting in this Division Bench. Therefore, a gap of 8 days is given for pronouncing the order. We direct the registry to post this matter on 9.9.1997 at 10.30 a.m. the Registry is directed to remand the accused and direct the jail authorities to produce the accused at 10.30 a.m. on 9.9.1997. 47. Learned counsel appearing for the respondent/accused relied on the following citations in support of his submission not to award the capital punishment of death, but to award only imprisonment for life: 1. Bachan Singh v. State of Punjab Bachan Singh v. State of Punjab , A.I.R. 1980 S.C. 898 at 902; 2. BachanSingh 3. Sevaka Perumal v. State of Tamil Nadu Sevaka Perumal v. State of Tamil Nadu , (1991)3 S.C.C. 471 ; 4. Shamhul Kanwar v. State of U.P. Shamhul Kanwar v. State of U.P. A.I.R 1995 S.C. 1748. 5. Chellappan v. State Chellappan v. State (1997)2 L. W. (Crl.) 490. 48. In the, A.I.R. 1980S.C 898 at 902, the Supreme Court has held as follows: “There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. It cannot be overemphasized 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 Sec.354(3). Judges should never blood-thirsty. Hanging or murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the union of India, in the instant case, show 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. Facts and figures, albeit incomplete, furnished by the union of India, in the instant case, show 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, will discharge the onerous function with evermore scrupulous case and humane concern, directed along the highroad of legislative policy outlined in Sec.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 laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” In the same decision, in para.202, it has been held by the Apex Court as follows: “In Rajendra Prasad, the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Art. 19(2) to (6)”. Out objection is only to the word “only”. While it may be conceded that murder which directly threatens or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible, we have discussed and held above that the impugned provisions in Sec.302, Penal Code, being reasonable and in the general public interests, do not offend Art.19, or its ‘ethos’, nor do they in any manner violate Arts.21 and 14. All the reasons given by us for upholding the validity of Sec.302, Penal Code, fully apply to the case of Sec.354(3), Code of Criminal procedure, also. All the reasons given by us for upholding the validity of Sec.302, Penal Code, fully apply to the case of Sec.354(3), Code of Criminal procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of West Bengal Bishnu Deo Shaw v. State of West Bengal , (1979)3 S.C.C. 714 which follows the dictum in Rajendra Prasad.” However, in the said decision itself, the Apex Court has held that the provisions of death penalty as an alternative punishment for murder in Sec.302, Penal Code is not unreasonable and it is in the public interest. Further, A court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; (b) if the murder involves exceptional depravity. Moreover, as per Secs.234(3), 235 (2) it is clear, (1) the extreme penalty can be inflicted only in gravest cases of extreme culpability and (2) in making choice of the sentence, in additional to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. In several cases, it was reiterated by the Apex Court that if a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R.Krishna Iyer, J., speaking for the Bench, in Edigsa Anamma, in these terms: “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 heart of the law for a sterner sentence.” In the above case, the Hon’ble Judges of the Apex Court differ in their view. However, by the majority view taken, it was held that the provisions of death penalty as an alternative punishment for murder in Sec.302, Penal Code is not unreasonable and it is in the public interest. Therefore, we are of the clear view that the above decision is not helpful to the respondent/ accused. 49. In the decision reported in Sevaka Perumal v. State of Tamil Nadu Sevaka Perumal v. State of Tamil Nadu , (1991)3 S.C.C. 471 the Apex Court has held, (para. Therefore, we are of the clear view that the above decision is not helpful to the respondent/ accused. 49. In the decision reported in Sevaka Perumal v. State of Tamil Nadu Sevaka Perumal v. State of Tamil Nadu , (1991)3 S.C.C. 471 the Apex Court has held, (para. 9) “For instance a murder committed due to deep seated personal rivalry may not call for penalty of death” But, in the same decision, the Supreme Court has also observed as follows; “But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.” Further, undue sympathy to impose inadequate sentence would demore harm to the justice system to undermine the public confidence in the efficacy of law, and society cannot long endure under serious threats. It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc., The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for the commission on the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. However, consequently, in the above case also on facts, the death sentence was justified by the Supreme Court. Therefore, the decision above cited also is not helpful to the respondent/ accused. 50. In the decision reported in Shamshul Kanwar v. State of UP. Shamshul Kanwar v. State of UP. A.I.R. 1995 S.C 1748 in para-25, it has been held as follows: “The large number of deaths on one side cannot ipso facto be a ground to bring the case into the category of “rarest of rare cases” particularly when we take into consideration the other aspects mentioned above.” In the above decision, there was a tension in the village with regard to the two rivalry groups and firing done by the accused and cross firing by police party causing death of one accused and about 10 persons of prosecution party dying in firing done by accused. But it is not so in the present case on hand. But it is not so in the present case on hand. It is significant to note that give persons who were sleeping in their field during midnight, who were unarmed, who have no provocation and having no knowledge about the commission of the offence, were done to, death one after another mercilessly with a heavy knife as a result of which they died on the spot. Therefore, the above decision is not applicable to the facts of the case on hand. 51. In the decision reported in Chellappan and 5 others v. State Chellappan and 5 others v. State (1997) 2 L.W. (Crl.) 490 a Division Bench of this Court has held as follows: “Coming to the question of sentence, who have to consider whether death sentence imposed upon A-1, A-2 and A-3 for the above offences is proper, in the light of the above facts of the case, in Shamshul Kanwar v. State of U.P. Shamshul Kanwar v. State of U.P. , A.I.R. 1995 S.C. 1748 the Supreme Court observed that “larger number of deaths on one side cannot ipso facto be a ground to bring the case into the category of “rarest of rare cases”. The following observation, as quoted in the above decision, which was ruled out from Francis Aleas Ponnan v. State of Kerala Francis Aleas Ponnan v. State of Kerala , A.I.R. 1974 S.C. 2281 is quite relevant in this case: “Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned the background, the context, of the factual setting of the crime and the strength and nature of the motives operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these, while in sufficient to being in an exception, may sufficie to make the less severe sentence more appropriate.” But, in that case when the workers after finishing their days work, taking their food sitting in a margoza tree, A-1 came and asked them to leave the village immediately, that D-1 objected to the shouting, by saying that they would dig the well in the way he directed, and he should go away minding his own business. Then wordy quarrel ensued. Thereafter, he attempted to stab D-1, D-1 snatched the weapon and threw away. Then wordy quarrel ensued. Thereafter, he attempted to stab D-1, D-1 snatched the weapon and threw away. Only then, A-2 went to the garden side and brought the other accused to the scene. Thereafter, all these accused attacked D-1, D-2, D-3 and P.W.1. As such, the occurrence was a product of sudden quarrel, as a result of the provocation, though not grave and sudden, which ultimately ended in causing the death of three persons. But, that is not so in the case on hand. Therefore, this decision will not in any way help the respondent/accused. 52. We are of the clear view that the case on hand is a very important, significant and rarest of the rare cases of the recent times in the State of Tamil Nadu. Because, in this case, with regard to the property dispute, the respondent/accused done to death five of his relatives while they were sleeping during midnight when they are unarmed, helpless and without any assistance, with a deadly weapon like a big knife cut the necks of five of his relatives mercilessly as if he cut five vegetables which created a sensation in the minds of the public of the State of Tamil Nadu. The another significant aspect here is with regard to the number of deaths, i.e., five deaths without any provocation and without any kind of exercising the right of private defence by the accused, the five persons were done to death. 53. We have examined the following decisions for their application in view of the importance of this case, in public interest. They are; 1. Arshad v. State of Karnataka Arshad v. State of Karnataka , (1994)4 S.C.C. 381 . 2. Jashubha Bhagat Singh Gohil 3. Umashankar Panda v. State of M.P. Umashankar Panda v. State of M.P. , (1996)8 S.C.C, 110. 4. Suresh Chand Bahri v. State of Bihar Suresh Chand Bahri v. State of Bihar , (1995)1 S.C.C. (Supp.) 80. 54. In Anshad v. State of Karnataka Anshad v. State of Karnataka , (1994)4 S.C.C. 381 the Apex Court has held as follows:(Para-18) “Courts are expected to exhibit sensitiveness in the matter of award of sentence particularly, the sentence of death because life once lost cannot be brought back. For determining the proper sentence while the court should take into account the aggravating circumstances, it should not over look or ignore the mitigating circumstances. For determining the proper sentence while the court should take into account the aggravating circumstances, it should not over look or ignore the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations which must be present to the mind of the court. Of course, the High Court has the power and jurisdiction to enhance the sentence of life imprisonment to death but that power has to be sparingly exercised, in “rarest of the rare cases” for Special reasons’ to be recorded. The courts must be alive to the legislative changes introduced in 1973 through Sec.354(3), Crl.P.C. Death sentence, being a exception to the general rule, should be awarded in the “rarest of the rare cases” for “special reasons” to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of a given case. The number of persons murdered is a consideration, but that is not the only consideration, for imposing death penalty unless the case falls in the category of “rare of the rare cases”. The court must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case.” 55. In the decision reported in Jashubha Bhagat Singh Gohil v. State of Gujarat Jashubha Bhagat Singh Gohil v. State of Gujarat , (1994)4 S.C.C. 353 the Supreme Court has held as follows: (para12) “There is undoubtedly power of enhancement available with the high Court which however, has to sparingly exercised. No hard and fast rule can be laid down as to in which case the High Court may enhance the sentence from life imprisonment to death. Each case depends on its own facts and on a variety of factors.” 56. In the decision reported in Umashankar Panda v. State of M.P. Umashankar Panda v. State of M.P. (1996)8 S.C.C. 110 the Supreme Court has observed as follows (Para-23): “There was no provocation and there is nothing to suggest that there was any quarrel between the accused and his wife or among any one of the family members. In the decision reported in Umashankar Panda v. State of M.P. Umashankar Panda v. State of M.P. (1996)8 S.C.C. 110 the Supreme Court has observed as follows (Para-23): “There was no provocation and there is nothing to suggest that there was any quarrel between the accused and his wife or among any one of the family members. The way in which the crime was executed clearly shows that it was a premediated one and not on account of sudden provocation or any “mental Derangement”. The motive suggested in the course of cross-examination of the prosecution witness is also not helpful to the accused in as much as he has pleaded alibi in his statement (under Sec.313, Crl.P.C.) and that has also been taken not of by the trial court as well by the High Court. The crime indulged by the accused is undoubtedly gruesome, cold-blooded, heinous, atrocious and cruel. On the facts established on the record, there appears to be no mitigating circumstances whatsoever, but only aggravating circumstances which justify the imposition of death sentence. Looking into the manner in which the crime was committed, the weapon used, the brutality of the crime, number of persons murdered and the helplessness of the victims there can be no any other conclusion except the one, the Sessions Judge and the High Court arrived at to award the capital sentence to the accused.” 57. In Sureshchandra Bahri v. State of Bihar Sureshchandra Bahri v. State of Bihar , (1995) 1 S.C.C. (Supp.) 80 the Supreme Court has observed that death sentence could be awarded in rarest of rare cases. In that case, the murder of wife was committed in an extremely brutal, gruesome, diabolical, revolting and dastardly manner and the victims body was truncated into two parts in a devilish style and the death of the two children were caused by inflicting severe injuries on neck and other parts of the body. In such circumstances, it was held in that case that the accused/husband falls within the category of “rarest of rare cases”. 58. Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on hand. In such circumstances, it was held in that case that the accused/husband falls within the category of “rarest of rare cases”. 58. Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on hand. Admittedly, as seen from the facts and circumstances of the case, the following are proved beyond doubt; (1) There is no provocation or any quarrel between the accused and the five deceased. All the five deceased were unarmed and sleeping during midnight and also they were helpless. There was no scope or chance for them to face the attack. (2) It is proved beyond doubt that it was premedidated one, but not on account of any sudden provocation. (3) There is no mental entrangement for the accused to kill 5 human beings in five strokes one after another and they were killed during the course of their sleep. (4) The nature and the manner in which the accused committed the five murders found to be gruesome, calculated, heinous, atrocious and coldblooded murder. Accordingly, in the above circumstances, it is proved beyond doubt that the said heinous and calculated offence committed by the respondent/accused in killing the 5 persons with five stroke one after the another is a rarest of the rare cases of the present age in this state as a whole. 59. We are of the clear view that the way in which he cut the neck of five individuals, while they were sleeping during mid-night, is really a premedidated, atrocious and calculated murder. As such we are of the clear opinion that if a human being of this nature viz., the respondent/accused is allowed to continue to live in the present society, there is great threat to the co-human beings, There is no safety or protection for the innocent, helpless, unarmed fellow human beings in the society. In view of the above special reason and the peculiar circumstances of the case on hand, we are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the respondent/ accused. 60. In view of the above special reason and the peculiar circumstances of the case on hand, we are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the respondent/ accused. 60. Therefore, for the foregoing special reasons and peculiar facts and circumstances of this case, the capital punishment of death is awarded to the respondent/ accused and he shall be hanged by neck until he is declared dead. Thirty days time is granted to the respondent/accused to go in appeal before the Supreme Court of India. As required under law, the certified copy of this order duly signed, is served on the respondent/accused now itself in open court.