JUDGMENT 1. 1. This murder reference arises out of the Sessions Case No. 15/96 in the court of the Additional Sessions Judge No. 3, Jodhpur. Criminal Appeals have been filed by the accused who has been sentenced to death by the learned Judge, challenging both sentence as also the conviction under Section 302, I.P.C. With the insistence of the learned counsel for the defence and the learned counsel for the prosecution we have carefully scrutinised the entire record and have re-appreciated the evidence both documentary and oral as is on the record. 2. The prosecution story, stated briefly, is that on 25 September, 1994 when the milk vendor knocked the door of the house of the accused Heera Lal and got no response. He informed the fact to the adjoining premises owner Prem Jangid that no body opened the house of Heera Lal for receiving milk. Therefore, Prem Jangid went to the house of Heera Lal where he saw several persons gathered around the house of Heera Lal. He saw that Heera Lal was standing on the roof of his house brandishing a nacked sword stained with blood. He threatened to kill any person who dared to approach him. Therefore, Prem Jangid went to the Police Station, Udaimandir and lodged the first information report, on receipt of which the police arrived on the scene of offence for investigation. When the police reached the place of occurrence it was found by them that the accused was standing on the roof of his house armed with a nacked sword and he addressed the police and people assembled there that he would kill any body who would try to approach him. The investigating officer having failed to obtain surrender from the accused, broke opened the door of the house and entered into it and overpowered the accused and seized the sword by seizure memo duly executed at the site. The sword was found stained with blood. Thereafter several documents were executed by the police. The seizure memo of the dead bodies of Sukha Devi, Tara Devi and Mahaveer lying on the floor were also prepared. The dead bodies apparently disclosed multiple injuries probably caused by sword. Photographs of the dead bodies and the scene of occurrence were also taken. The accused was arrested. The matter was further investigated and on completion of investigation challan was filed. The dead bodies apparently disclosed multiple injuries probably caused by sword. Photographs of the dead bodies and the scene of occurrence were also taken. The accused was arrested. The matter was further investigated and on completion of investigation challan was filed. The learned Judge had examined earlier 26 witnesses as produced by the prosecution to prove the prosecution case and after recording the statement of the accused under Section 313, Cr.P.C. proceeded to holding the accused guilty of the offence under Section 302, I.P.C. and sentenced him to suffer death, as a result of which the reference as aforesaid is made. The accused has sent appeal from jail and another through his Advocate challenging his conviction and also sentence of death. 3. The matter was taken up by this Court for hearing earlier and it was found that the report of the Forensic Science Laboratory, Jaipur in relation to the weapon of offence and clothes seized by the investigating officer was not received. Therefore the record was sent back to the learned Sessions Judge with a directions to call for the report of the Forensic Science Laboratory, Jaipur in respect of the weapon of offence and the clothes seized by the investigating officer. Accordingly the report was received and the additional statements of the accused under Section 313, Cr.P.C. was recorded and the entire additional evidence was then transmitted to this Court. 4. The matter was again taken up for further hearing on July 2, 1997 and Division Bench of this Court orders that substantial injury was caused to the accused by not permitting him to lead his case remitted to the Trial Court for recording evidence as may be done by the defence. The case was then entrusted to the Additional Sessions Judge, Jodhpur who recorded the evidence of defence witnesses eight in number, and again sent the record to this Court, thus completing the recording of evidence as per directions of this Court and removing every possibility of injustice being caused to the accused. It was after complete record as per directions of this Court was received that the paper books were updated and the matter was taken up for hearing by us. 5. With the assistance of the learned counsel for the accused and the learned Public Prosecutor we have carefully scrutinised the evidence on record. It was after complete record as per directions of this Court was received that the paper books were updated and the matter was taken up for hearing by us. 5. With the assistance of the learned counsel for the accused and the learned Public Prosecutor we have carefully scrutinised the evidence on record. We have re-appreciated both oral and documentary evidence and noted the contentions raised by the counsel in support of his case for acquittal. 6. As has been rightly pointed out by the learned counsel for the defence the entire case is dependent on circumstantial evidence as led by the prosecution and requires re-appreciation of evidence on record. 7. We have also scrutinised the judgment impugned in the appeals and we find that the learned Judge has used the chain of following circumstances to come to the conclusion of guilt of the accused. (i) On 25.9.94 P.W. 4 Manohar Lal milkman received no response to his repeated knocking on the door of Heera Lal where he had gone to deliver milk as usual. (ii) P.W. 4 Manohar lal informed the matter to P.W. 6 Prem Jangid who lodged the FIR which he has proved as Ex.P/34. (iii) On receipt of this information and recording of the FIR the police investigating team arrived at the scene of offence. (iv) The police officials in the team saw the accused on the roof of the house with a nacked bloody sword in his hands and requested him to surrender. (v) The request for surrender was refused by the accused. (vi) The police broke opened the door, overpowered the accused, seized the sword and took the accused in custody. (vii) The testimony of other neighbouring witnesses and police officials who saw the accused brandishing the bloody sword and proclaiming that he would kill any one who seeks to apprehend him. (viii) The documents like seizure memo of the sword, report of the Forensic Science Laboratory stating that the sword had human blood on it. (ix) Report of the Forensic Science Laboratory that the cloths of the accused had also human blood on it. 8. (viii) The documents like seizure memo of the sword, report of the Forensic Science Laboratory stating that the sword had human blood on it. (ix) Report of the Forensic Science Laboratory that the cloths of the accused had also human blood on it. 8. It was on appreciation of these circumstantial chain that the learned Judge came to the conclusion of guilt, as according to him these circumstances which have no missing link do prove beyond reasonable doubt that it was accused who was responsible for the homicidal death of his own mother, wife and son. The learned Judge therefore, chose to convict the accused accordingly and sentenced him to suffer death. The correctness of this judgment of conviction and sentence is challenged herein. 9. We have to re-examine now as to whether the learned Judge was correct in his conclusions on re-appreciation of evidence and whether the circumstances as held proved by the learned Sessions Judge were rightly held proved and had reached the right conclusion. 10. P.W. 1 Heera Lal is the witness to the arrest of the accused as also preparation of several documents by the police during the course of investigation. He has been witness to the following exhibits, namely, Ex.P/1 arrest memo, Ex.P/2 seizure memo of sword, Ex.P/3 memo of breaking open the door, Ex.P/4 and Ex.P/5 spot maps, Ex.P/6 inspection memo, Ex.P/7 seizure of bloddy soil, Ex.P/8 broken pieces of blood stained floor, Ex.P/9 Blood sample of Mahaveer, Ex.P/10 seizure memo of broken took of deceased Tara Devi, Ex.P/11 inspection report of dead body of Sukhi Devi, Ex.P/12 inspection report of dead body of Tara Devi, Ex.P/13 inspection report of the dead body of Mahaveer, Ex.P/14 seizure memo of cover sheet, Ex.P/15 to P/17 panchnamas of dead bodies, Ex.P/18 seizure memo of underwear and Ex.P/19 seizure memo of pamphlets. This witness has thus proved all the important documents. He has proved that the accused was seen brandishing the bloody sword and was overpowered and arrested by the police after breaking open the door of his house. He also proved the recovery of dead bodies. 11. P.W. 2 Chandrashekhar is the Photographer who took photographs of the dead bodies and the scene around and he proved the photographs Ex.P/20 to Ex.P/32 to be the photographs taken by him. 12. He also proved the recovery of dead bodies. 11. P.W. 2 Chandrashekhar is the Photographer who took photographs of the dead bodies and the scene around and he proved the photographs Ex.P/20 to Ex.P/32 to be the photographs taken by him. 12. P.W. 3 Virendra Singh is Police Constable No. 1176 who handed over 12 sealed packets for transmission to Forensic Science Laboratory, Jaipur to police constable Narain Ram who has also been examined. The witness deposes that the packets were with him in sealed condition and were handed over to Narain Ram for being delivered at the Forensic Science Laboratory, Jaipur. It is proved by the prosecution that the articles seized at the site of offence were in proper custody and were properly transmitted for their examination. P.W. 4 is Manohar Das who reported to RW. 6 the fact that the door of the house of the accused was not being opened by any of the members of his family on 25.9.94. P.W. 5 Luna Ram is another neighbour and relation of accused who saw the dead bodies and saw the accused on the tarrace tearing religious books and throwing pamphlets. He has proved Ex.P/33, the specimen of the pamphlet thrown by the accused. After the accused cross-examined the witness, the witness was declared hostile. However his hostility is inconsequential and the witness has proved the fact that he saw the dead bodies and saw the accused throwing pamphlets from the tarrace of his house. P.W. 6 Prem Jangid is also relation of the accused. On September 25, 1994 he was told by milkman Manohardas that nobody was responding the call for milk from the house of the accused. P.W. 5 Luna Ram and others spoke of accused standing on roof with a nacked sword in his hand. He therefore, went to the roof of his own house with P.W. 5 Luna Ram and saw the dead bodies of Sukhi Devi, Tara Devi and Mahavir lying on the floor of the roof of the house of the accused. He, therefore, went to the police station and lodged first information report which is proved as Ex.P/34. After the cross examination of this witness by the accused he was declared hostile. He, therefore, went to the police station and lodged first information report which is proved as Ex.P/34. After the cross examination of this witness by the accused he was declared hostile. Again, his hostility is inconsequential as he has proved the FIR and has duly corroborated P.W. 5 who in turn are duly corroborated atleast the witnesses who immediately arrived at the scene of offence, saw the accused on the roof of his house with a sword and the accused being arrested thereafter. This independent corroboration of the witnesses from the neighbourhood thus proves beyond reasonable doubt the facts alleged by these witnesses, it also proves that the accused was seen on the scene of offence immediately after the occurrence by several witnesses holding the bloody sword in his hand and telling people that any body who dares to apprehended him will be assaulted.P.W. 7 Hathi Ram and P.W. 8 Chhoga Ram neighbouring witnesses have been declared hostile. Their evidence is therefore, liable to be ignored. 13. P.W. 8 Kana Ram proves the seizure of cloths from the person of the deceased by proving Ex. P/37, P/38 and P/39. P.W. 10 Ganga Ram is again hostile. P.W. 11 Dalpat Singh is police constable and a witness to the arrest of the accused who saw the accused with sword and saw dead bodies. He thus corroborates the testimony of P.W. 5 and P.W. 6. P.W. 12 Achal Singh is other constable who fully corroborates with other witnesses i.e., P.W. 1, P.W. 5, P.W. 6 and P.W. 11. There is thus ample corroboration of the evidence on record by the witnesses who saw the accused on the scene of offence holding a nacked sword. P.W. 13 Chetan and P.W. 14 Nimba Ram are also relations of the accused who have been declared hostile and whose evidence will have to be ignored. P.W. 16 Desh Raj is yet another police constable who corroborates on material particulars the police officials who were examined as PW. 11 and P.W. 12. P.W. 15 Faglu Ram is Head Constable and incharge of Malkhana. He states of the custody of the articles seized by the police. He is witness to the extent that the articles seized in his custody were proper and not broken. P.W. 17 Narain Ram is police constable who carried 12 packets from Malkhana to the Forensic Science Laboratory, Jaipur. PW. He states of the custody of the articles seized by the police. He is witness to the extent that the articles seized in his custody were proper and not broken. P.W. 17 Narain Ram is police constable who carried 12 packets from Malkhana to the Forensic Science Laboratory, Jaipur. PW. 18 Puna Ram is yet another witness who has turned hostile. 14. P.W. 19 Bachhumal is nephew of the accused who has turned hostile and his evidence is also liable to be ignored. 15. Then two more constables P.W. 20 Sohan Lal and P.W. 21 Bhanwar Singh also disposes about seeing the accused with the sword on the tarrace immediately after the occurrence with the dead bodies and thus lend further corroboration of the testimony of other witnesses. 16. P.W. 22 Karan Singh is Police Sub inspector who arrested the accused after breaking open the door. He proves Ex.P/47 to Ex.P/84 photographs of the deceased. He thus proves the fact that after breaking open the door that the police entered the house and arrested the accused after overpowering him and seized the bloody sword from his hands. The seizure is also duly proved. 17. P.W. 23 Dunger Ram is a constable who handed over the dead bodies after post mortem to Loona Ram, a relation of the accused vide Ex.P/86 which he proves. RW. 24 is Dr. V.K. Malhotra who conducted the post mortem on the dead bodies and has proved the post mortem reports Ex. P/87, Ex.P/88 and Ex.P/89. The deposition of this doctor proves beyond reasonable doubt the fact that all the three persons met homicidal death. 18. P.W. 25 Devi Singh is yet another police constable who states that on receiving the information he immediately visited the scene of offence. P.W. 26 Hema Ram is another relation of the accused who has turned hostile. 19. The appreciation of this evidence as narrated above thus proves that the finding of the learned Sessions Judge in coming to the conclusion of guilt is proper. Each link in the chain of circumstances is duly proved, thus proving beyond reasonable doubt that the accused is responsible for homicidal death of three persons closely related to him. 19. The appreciation of this evidence as narrated above thus proves that the finding of the learned Sessions Judge in coming to the conclusion of guilt is proper. Each link in the chain of circumstances is duly proved, thus proving beyond reasonable doubt that the accused is responsible for homicidal death of three persons closely related to him. We, therefore, on re-appreciation of the material oral and documentary evidence on record reaffirm the finding of guilt as recorded by the learned Sessions Judge as there is no error committed by the learned Judge in arriving at this conclusion. 20. That takes us to the question of sentence. The learned Sessions Judge has, on appreciation of this evidence on record as led by the prosecution, came to the conclusion that the accused was guilty of having committed a heinous crime which is of such rare nature that he deserves death sentence. According to the learned Sessions Judge the accused is guilty of having committed murder of his own mother, wife and son. There cannot be a crime bloodier cruel and sister than the one committed by the accused but for certain circumstances which we will narrate hereinafter, we would have concurred with the learned Judge in awarding the death sentence, but we seriously doubt as to whether the learned Sessions Judge would have chosen to recommend death sentence had he recorded and appreciated defence evidence rendered thereafter under the directions of this Court. The accused has examined as many as eight witnesses stating that the accused was staying for all those years peacefully and happily with his family. Alt the witnesses unanimously declared the accused to be a person of good moral character, of a wilful religious mind and a God fearing citizen. We feel it unjust and improper to remit the matter to the learned Sessions Judge for appreciation of the defence evidence. We have, therefore, chosen to appreciate it ourselves and we are of the opinion that though the defence has proved the accused to be a person of good past conduct but there is no reason for disbelieving the prosecution evidence which overwhelmingly proves the guilt of the accused. It is true that the prosecution has failed to prove the motive for killing but it is apparent that the accused went to the killing spree because his mind was religiously unhinged. It is true that the prosecution has failed to prove the motive for killing but it is apparent that the accused went to the killing spree because his mind was religiously unhinged. In our opinion it is a case where murder is brutally committed on premeditation and does not require death sentence. We, therefore, reject the reference and refuse to confirm the death sentence as recommended by the learned Sessions Judge. We commute the death sentence to imprisonment for life. 21. We must record yet another reason for coming to this conclusion that the accused does not deserve death sentence. It is obvious that the accused is full of remorse after the death of his three close relations and he is seriously repenting the murders committed by him. In fact sentencing the accused to death would be releasing him from mental suffering that he is undergoing of remembering that he has killed his own mother, wife and son. The punishment of living and remembering this is more severe than that of death. It is also a serious example to those who may have such criminal tendencies. It will have the necessary deferent effect as the person will have to remain in jail for life remembering every day that he is there because he has killed his dearer ones. In our opinion it is case of sudden provocation. It is consistently observed by the Supreme Court that penalty of death sentence should be awarded only in rarest of rare cases. This is certainly not such a case. Hence this decision of commuting the sentence from that of death to imprisonment for life. 22. Learned counsel for the accused appellant has relied on several decisions of the Supreme Court and this Court which are as under- 1. Dalveer Singh v. State of Punjab, 1979 Cr.LR (SC) 105 ; 2. State of U.P. v. M.K. Anthony, 1985 Cr.LR (SC) 41 ; 3. Sevi & Anr. v. State of Tamil Nadu, 1971 Cr.LR (SC) 222 ; 4. Shankerlal Gyarsilal Dixit v. State of Maharashtra, 1981 Cr.LR (SC) 161 ; 5. Ram Das v. State of Matharashtra, 1977 Cr.LR (SC) 173 ; 6. Hukam Singh v. State of Rajasthan, 1977 Cr.LR (SC) 248 ; 7. Sadda Singh v. State of Rajasthan, 1990 Cr.R. (Raj.) 415 ; 8. Jagta v. State of Haryana, 1974 Cr.LJ 1010 ; 9. Shankerlal Gyarsilal Dixit v. State of Maharashtra, 1981 Cr.LR (SC) 161 ; 5. Ram Das v. State of Matharashtra, 1977 Cr.LR (SC) 173 ; 6. Hukam Singh v. State of Rajasthan, 1977 Cr.LR (SC) 248 ; 7. Sadda Singh v. State of Rajasthan, 1990 Cr.R. (Raj.) 415 ; 8. Jagta v. State of Haryana, 1974 Cr.LJ 1010 ; 9. Datar Singh v. State of Punjab, 1974 Cr.LJ 908 ; 10. Kali Ram v. State of Himachal Pradesh, 1974 Cr.LJ page 1 ; 11. Ramanuj v. State of Rajasthan, 1996 Cr.LR (Raj.) 376 ; 12. Muluwa v. State of Madhya Pradesh, 1975 Cr.LR (SC) 521 ; 13. Datar Singh v. State of Punjab, 1974 Cr.LR (SC) 104 ; 14. State of U.P. v. Hari Prasad, 1974 Cr.LR (SC) 68 ; 15. Selveraj v. State of Tamil Nadu, 1976 Cr.LR (SC) 344 ; 16. State (Delhi Administration) v. Gulzarilal Tandon, 1979 Cr.LR (SC) 448 and 17. State of Maharashtra v. Kondiba Tukaram Shirke, 1976 Cr.LR (SC) 242 . Most of the cases cited are relied upon for the purpose of not giving death sentence. We need not elaborate or deal with any of the judgments referred as we also are not confirming the death sentence and are commuting it to the imprisonment for life. Some of the cases referred also deal with the precaution to be taken while convicting the accused persons on circumstantial evidence, alone. The principles stated In these cases are undoubtedly correct. We are also aware of the guidelines given by the Supreme Court in relation to circumstantial evidence and Its appreciation. We have in fact summarised above the circumstances on which reliance is placed by the learned Sessions as also by us and we are firmly of the opinion that there is no circumstances which is not duly proved nor there is any circumstance which is missing. We have, therefore, committed no roor in convicting the accused on the circumstantial evidence, as it stands. We do not therefore, propose to dilate on individual citation and point out the distinction as this generally is the distinction. 23. In the result, the appeals against conviction fail and are dismissed. The murder reference is not accepted. Sentence of death to the accused is not confirmed and the same is committed to that of imprisonment for life. *******