Judgment N.K. JAIN, J.: 1. The learned First Additional District Judge and Chief Judicial Magistrate, Krishnagiri found the accused guilty of the offences under Sec.302 (3 counts), 307 (3 counts) and 324, I.P.C. by judgment made in Sessions Case No.49 of 1997 on 1.10.1997 and sentenced to death under Sec.302, I.P.C., 7 years rigorous imprisonment for each offence under Sec.307, I.P.C. and to undergo rigorous imprisonment for 3 years under Sec.324, I.P.C. The sentence imposed under Secs.307 and 324, I.P.C. to run concurrently. 2. A reference has been made by the Court of Sessions under Sec.366 of the Code of Criminal Procedure for confirmation. It is numbered as R.T.No.8 of 1997. The appellant herein has also preferred Criminal Appeal No.821 of 1997, against the conviction and sentence imposed thereunder. Thus, both the reference and the criminal appeal are before us for bearing. 3. The facts which are necessary for disposal, as per the prosecution, are briefly stated as follows: (i) Appellant/accused Munusamy is a resident of Kondapalli Kattukottagai. Appellant and P.W.2 Sarasu got married 15 years ago. The marriage was broken out within two years as alleged in the panchayat and they got separated from each other. The accused thereafter married one Lakshmi and through her, he got two children, one boy and one girl. It is alleged that prior to the occurrence about 6 months earlier, accused and P.W.2 married again. It is alleged that there used to be frequent quarrel in their family. P.W.2 sent message to her mother Mookammal that her husband had beaten up and she had not taken food for the past three days. (ii) On 17.8.1992, P.W.1 Muniammal alias Nadupappa, a resident of Kondapalli, her mother Mookammal, her younger sister P.W.8 Susila, Bairappan alias Chinnapaiyan grand-son of Mookammal, her elder brother Bairappan had gone to the residence of the accused at 7.00 p.m. to find out the reason why P.W.2 Sarasu was not taking food for the past three days. They saw a wordy quarrel occurred between the mother of the accused (P.W.10) and P.W.2 Sarasu. They saw them both fighting with each other pulling each other by their tuft of heir. At that time, the accused went inside the house and brought a soori knife and stabbed on the stomach of P.W.1s mother Mookammal. Bairappan alias Chinnapaiyan pervented the stabbing. They saw them both fighting with each other pulling each other by their tuft of heir. At that time, the accused went inside the house and brought a soori knife and stabbed on the stomach of P.W.1s mother Mookammal. Bairappan alias Chinnapaiyan pervented the stabbing. Accused stabbed him also, on his back and the knife pierced his back and came in the front. P.W.1 ‘s elder brother Bairappan and P.W.3 Susila caught held of the accused. He stabbed them also. The accused stabbed Bairappan on the left side of his body with the same knife. The accused then stabbed on Susilas left shoulder and on right upper arm. While P.Ws.1 and 2 tried to prevent the same, the accused stabbed on P.W.1s right chest and on P.W.2 Sarasus chest. P.W.4 Muniappan snatched the soori knife from the accused and, during the said action, he got injured in his hand. The accused ran away with the soori knife. Mookammal and her grand-son Chinna Paiyan alias Bairappan, who sustained injuries died on the spot. (iii) On hearing about the occurrence, P.W.7 Periasamy went to the scene of occurrence, saw both Mookammal and Chinna Paiyan alias Bairappan dead. He sent the injured persons to hospital. (iv) P.W.5 Muniappan, while returning to Kumman-or in a bullock cart on that day at 8.00 p.m. saw the accused who told him that he stabbed Mookammal, Bairappan Chinnapaiyan, Bairappan, Susila, Nadupappa and Sarasu with a soori Knife. (v) On 17.8.1992 at 8.45 p.m. the accused appeared before Krishnagiri taluk police station and gave the statement Ex.P-24. On that basis, the Sub-Inspector of Police of that police station, registered the case in Crime No.447/92 under Secs.302 and 324, I.P.C. and he seized M.0.11 Soori Knife, produced by the accused, in the presence of P.W.7 and another witness, under Mahazar. (vi) P.W.19 Subbannan, Inspector of Police of Krishnagiri Town received the F.I.R. at 9.00 p.m., on 17.8.1992 and went to the police station at 10.00 p.m. P.W.6 Village Administrative Officer also came there. After collecting the materials, P.W.9 visited the place of occurrence, and prepared Ex.P-1 observation mahazar in the presence of Village Administrative Officer. He also prepared Ex.P-26 rough sketch. After collecting the materials, P.W.9 visited the place of occurrence, and prepared Ex.P-1 observation mahazar in the presence of Village Administrative Officer. He also prepared Ex.P-26 rough sketch. On 18.8.1992, he recovered the blood stained earth found under the bodies of Mookammal and Chinnapaiyan under Exs.P-l5 and P-17 and sample earth under Exs.P-16 and P18, He also recovered the shirt of the accused M.0.12, which was handed over by P.W.4, under mahazar Ex.P-2. He conducted inquest from 10.30 a.m. to 7.00 a.m. and prepared Exs.P-27 and P28 inquest reports. At 7.30 a.m., he recovered M.Os.9 and 10 from the house of the accused under Ex.P-3. (vii) On 17.8.1992, Dr.Venkatesan, P.W.13 examined P.Ws.3,2, and 1 gave wound certificates Exs.P-10 to P-12 respectively. (viii) Only 17.8.1992, Dr.Theerthagiri, P.W.14, examined P.Ws.10 and 9 and gave wound certificate Exs.P-13 and P-14 respectively. On the same day, the same Doctor examined the accused and gave wound certificate Ex.P-15 and also examined P.W.4 and gave wound certificate Ex.P-16. (ix) P.W.18 Dr.Sergie Mathews, while serving at St.Johnson Hospital, Bangalore on 18.8.1992 at 3.45 p.m. examinedan injured, Bairappan and gave medical treatment. Ex.P-19 was the out-patient record and Ex.P-20 was the x-rays taken by him. The said Bairappayan died at 7.50 p.m. on that day. Ex.P-21 is the opinion of Dr.Madhusoodhanan in which he opined that the injured might have died due to shock caused by the bleeding in the thracic cavity. Ex.P-22 is the admission certificate. Ex.P-23 is the death certificate regarding Bairappans death. (x) P.W.11 Dr.Sanas Begum attached to Government Hospital conducted the post mortem on the dead body of deceased Mookammal at 2.00 p.m. on 18.8.1992 as per requisition Ex.P-4 obtained from P.W.16 and issued Ex.P-5 post mortem report. She opined that the injury caused in the left lung had caused the death. She also conducted the post mortem on the dead body of Bairappan and Chinnapaiyan as per requisition Ex.P-6, obtained from P.W.17 and issued Ex.P-7 post mortem certificate, she opined that the death would have occurred within 24 hours prior to the post mortem due to hemorrhage and shock caused by the injury in the left lung. (xi) P.W.12 Dr. Kalaivani, Government Doctor at Krishnagiri Government Hospital, on 19.8.1992 at 4.50 p.m. conducted the post mortem on the dead body of Bairappan, as per the requisition Ex.P-8 from P.W.15, and issued Ex.P-9 post mortem report. (xi) P.W.12 Dr. Kalaivani, Government Doctor at Krishnagiri Government Hospital, on 19.8.1992 at 4.50 p.m. conducted the post mortem on the dead body of Bairappan, as per the requisition Ex.P-8 from P.W.15, and issued Ex.P-9 post mortem report. He opined that the person would have died between 22 and 24 hours due to shock and internal haemmorahage and due to the injury caused in the liver. (xii) Sub Inspector of Police Vincent George held the inquest on the body on 19.8.1992, from 12.30 p.m. to 2.30 p.m. and issued Ex.P-29 inquest report. After the post mortem, P.W.16 seized M.Os.19 to 25. P.W.17 seized M.Os.26 to 28 and produced them before the Inspector who seized them under form 95. (xiii) On 22.8.1992, P.W.19 examined P.Ws.1 to 3 and seized M.Os.l to 8 under Mahazar Ex.P-30. (xiv) On 27.1.1993, P.W.19 submitted an application before the Judicial Magistrates Court for chemical examination of objects. Ex.P-33 was the chemical examination report and Ex.P-34 was the serologist report received by court. He investigated the case till 25.6.1993. (xv) P.W.20 Inspector Perumal took up this case for investigation on 8.11.1995. After completion of the formalities, he filed a charge sheet against the accused, under Secs.302,307 and 324, I.P.C. 4. The learned Judicial Magistrate, took up the matter on file and after giving necessary documents and exhibits relied on by the prosecution to the accused and after due formalities, committed the matter to the Sessions Court. 5. The learned District and Sessions Judge, Dharmapuri sent the file to the court of First Additional District Judge and Chief Judicial Magistrate, Krishnagiri for trial. 6. In the trial court, the prosecution examined as many as 20 witnesses and marked as many as 34 exhibits and 38 material objects. On the defence side, one exhibit was marked and no witness was examined. 7. When the accused was questioned under Sec.313, Crl.P.C. against the circumstances appearing against him, as found in the evidence of the prosecution witnesses, he denied the same. He has submitted a written statement stating that a false case has been made against him. 8. On the defence side, one exhibit was marked and no witness was examined. 7. When the accused was questioned under Sec.313, Crl.P.C. against the circumstances appearing against him, as found in the evidence of the prosecution witnesses, he denied the same. He has submitted a written statement stating that a false case has been made against him. 8. Learned trial Judge, after considering the materials available on record and on hearing the learned counsel appearing on either side, came to the conclusion that the prosecution has proved its case beyond reasonable doubt, convicted the accused for the offences under Sec.302 (3 counts), 307 (3 counts) and 324, I.P.C. and sentenced thereunder, as mentioned above. 9. Learned counsel for the appellant submits that no evidence of re-marriage has come on record, that the story of not taking food also is not correct and that therefore the question of all the witnesses going to the residence of the accused will not arise and in such circumstances, he contended that the accused has been falsely implicated in the crime. It is also argued that there is evidence to show that there was a fighting going on, that some persons were there and they joined together and inflicted injuries in the dark hours, due to mistaken identity and that the accused has been wrongly implicated in the crime and that this aspect has not been considered by the trial court in the right perspective. Learned counsel for the appellant further argued that the accused has exercise his right of private defence and that this aspect was not considered properly. 10. Learned Additional Public Prosecutor submitted that the trial court has appreciated the entire evidence of the prosecution in the correct perspective and that there is no perversity of approach so as to have a different view. So far as the argument that there is no evidence of remarriage is concerned, learned Additional Public Prosecutor submitted that the appellant has not put any evidence to support his argument, nor any cross-examination has been let in suggesting to the same effect, and that apart, merely no evidence of re-marriage will have no effect, when there is evidence on record, that the appellant was present at the scene of occurrence, proved by injured witnesses. 11. We have heard the learned counsel appearing for the appellant/accused and also the Additional Public Prosecutor. 11. We have heard the learned counsel appearing for the appellant/accused and also the Additional Public Prosecutor. Our attention had been drawn to the evidence of the witnesses and to the materials available on record, and also the case laws, on the point. 12. Being a murder reference, we consider it necessary to go in detail into the evidence of the prosecution independently. As culled out, it is seen that there is frequent quarrel between the accused and P.W.2 Sarasu, his wife. On hearing the news that P.W.2 Sarasu was beaten up by the accused and was not taking food for the past two days, on 17.8.1992 at about 7.00 p.m. deceased Mookammal, deceased Chinnapaiyan alias Bairappan, P.W.I Nadupappa and P.W3 Susila, Bairappan had gone to the residence of the accused. Admittedly, all the above witnesses are the relatives of P.W.2 Sarasu. As per the prosecution case, when they reached the residence of the accused, they saw a wordy quarrel between P.W.2 Sarasu and her mother-in-law, P.W.10. There was a tussle between them, and each of them holding the tuft of the hair, beating each of them. P.W.10 shouted and called her son-the accused, who returned from his work. Deceased Mookammal asked, “for how long this condition will go”. Accused went inside, brought M.0.11 soori knife and stabbed Mookammal on her stomach. Deceased Chinnapaiyan alias Bairappan tried to prevent his grand-mother from the stabbing, but the accused stabbed him on his back. According to the prosecution witnesses, the said Soori knife pierced from the back to the front side of him. On seeing this Bairappan and P.W.3 Susila caught hold of the accused and beat him by hands. They tore the shirt of the accused. The accused stabbed the said Bairappan over his left side ribs. The accused stabbed over the chest of P.W.1 Nadupappa and also over the chest of P.W.2 Sarasu. Thereafter, P.W.4 Muniappan, attempted to snatch the knife from the hands of the accused. In that attempt, he got injuries on his right hand. On the way to police station, the accused gave an extra judicial confession to P.W.5 Muniappan, to the effect that he stabbed Mookammal, Chinnapaiyan alias Bairappan, Bairappan and also his sister-in-law. Thereafter, P.W.4 Muniappan, attempted to snatch the knife from the hands of the accused. In that attempt, he got injuries on his right hand. On the way to police station, the accused gave an extra judicial confession to P.W.5 Muniappan, to the effect that he stabbed Mookammal, Chinnapaiyan alias Bairappan, Bairappan and also his sister-in-law. The accused thereafter, surrendered at the Krishnagiri taluk police station at 8.4S p.m. on 17.8.1992, and gave a statement Ex.P-24 to the Sub-Inspector of Police, Vincent George, who sent the information to his superior by way of express F.I.R. P.W.19 Subbannan, Inspector of police received the express F.I.R. and made further investigation. 13. From the above, it is seen that P.Ws. 1 to 4 are eye witnesses to the occurrence. They have also sustained injuries in that occurrence. P.Ws. 1. to 3 are sisters. P.W.4 is the intervenor, who snatched the soori knife from the accused. 14. P.Ws.l to 3, in their deposition, have categorically mentioned about the injuries sustained by the deceased Mookammal, deceased Chinnapaiyan alias Bairappan and also the deceased Bairappan. The said Mookammal and Chinnapaiyan alias Bairappan died instantaneously whereas Bairappan after taking some treatment, died at a hospital in Bangalore on 18.8.1992 at about 7.50 p.m. P.W.,11 Dr.Sanas Begum, while working as Assistant Doctor at Government Hospital, Krishnagiri, who conducted the post mortem over the body of Mookammal, found two stab injuries one on her stomach and another below the left collar bone. She also conducted the post-mortem over the body of Chinnapaiyan alias Bairappan and found a stab wound measuring 3.1.5-5 cm. below the left shoulder bone starting from the lower side of the 6th rib penetrated internally through the 8th rib and reached till the chest. P.W.12 Dr.Kalaivani while working as Assistant Doctor at Krishnagiri Government Hospital on 19.8.1992 conducted the post-mortem over the dead body of Bairappan and found three external injuries P.W.13 Dr.V.Vekatesan examined P.W.3 Suseela and found 3 injuries, then examined P.W.2 Sarasu and found two injuries and also examined P.W.1 Muniammal and found one injury. From the above, it is seen that the prosecution witnesses P.Ws.1 to 3 spoke about the occurrence, corroborating with the medical evidence mentioned above. The presence of the accused is shown in clear terms by the prosecution witnesses. They are not only eye witnesses, but also injured witnesses. From the above, it is seen that the prosecution witnesses P.Ws.1 to 3 spoke about the occurrence, corroborating with the medical evidence mentioned above. The presence of the accused is shown in clear terms by the prosecution witnesses. They are not only eye witnesses, but also injured witnesses. Though the injury against Chinnapaiyan alias Bairappan, as alleged if not pierced, but it is so deep according to Doctor and caused the death on him. So the evidence of eye witnesses cannot be held to be not trustworthy. Learned counsel for the appellant has not been able to show any material which would be fatal to the case of the prosecution, except minor contradiction, which are not material. 15. Our attention has been drawn to the deposition of other witnesses. It is seen that M.O.11 soori knife, used by the accused for the commission of crime, was seized by the sub Inspector of Police in Form 95, in the presence of the witnesses. P.W.6 Village Administrative Officer is a mahazar witness. He speaks about the seizure of blood stained earth. P.W.8 another mahazar witness speaks about the seizure of chimneys M.Os.9 and 10. P.W.14 Teerthagiri, while working at Government Hospital, Krishnagiri examined Munusamy, the accused and his parents and gave wound certificates mentioning the wounds were simple in nature. As per the explanation of the accused under Sec.313, Crl.P.C, it is seen that he has stated that the prosecution witnesses P.Ws.l to 3 and few others beat his parents and they were all intoxicated and they had stabbed each other in the dark, on being unable to identify each other. When we peruse this statement with the available materials on record, it is seen that the alleged injuries sustained by the accused and his parents are simple in nature. P.Ws. 1 to 3 in their depositions categorically stated that P.W.2 beat her mother-in-law P.W.10, which commences the entire occurrence. The accused was also beaten by P.W.3 and Bairappan by arms. So, the simple injuries sustained by them were proved. Though conviction upon the evidence of hostile witness is not barred, court can value the cross-examination of such evidence. The parents of the accused sustained simple injuries, they turned hostile. They deposed that they were attacked by the deceased party, which had not been substantiated by evidence, both oral and by the wound certificates. Though conviction upon the evidence of hostile witness is not barred, court can value the cross-examination of such evidence. The parents of the accused sustained simple injuries, they turned hostile. They deposed that they were attacked by the deceased party, which had not been substantiated by evidence, both oral and by the wound certificates. So, the presence of the accused and his parents was established by the defence side itself. In the absence of any materials to substantiate their case, the evidence of hostile witnesses cannot disprove the prosecution case. That apart, alcohol was not found in any or Viscera of the deceased persons. So the case of accused is not acceptable. In such circumstances, we see no reason to believe the case of the defence on this aspect. 16. On the contrary, the evidence of P.Ws.1 to 4 are cogent, clear and without any ambiguity. More so, the recovery of M.0.11 is very clear. There is clear version of the injured eye witnesses about the injuries they sustained which fact had been corroborated by medical evidence as stated earlier. 17. The argument of the learned counsel for the appellant is that there is no evidence of re-marriage and the question of witnesses going to the residence of the accused will not come is not sustainable, for the reason that the occurrence had taken place at the residence of the accused, from the commencement of a wordy quarrel between P.W.2 and her mother-in-law P.W.10. In the absence of any suggestion on the side of the defence the argument of the learned Additional Public Prosecutor that it is usual thing in villages that in panchayat, a marriage can be dissolved and after sometime they can marry once again, has some substance. In such circumstances, we find it difficult, to brush aside the entire prosecution case, on the basis that the remarriage between the accused and P.W.2 Sarasu, had not been proved to the full satisfaction. 18. It is no doubt true that if a material consideration, which has not been considered or finding is based on ‘no evidence’ or there is any perversity the conviction based on such evidence can be set aside. But, every error or omission irregularity does not vitiate the conviction unless it prejudices and injustice results in miscarriage of justice. 18. It is no doubt true that if a material consideration, which has not been considered or finding is based on ‘no evidence’ or there is any perversity the conviction based on such evidence can be set aside. But, every error or omission irregularity does not vitiate the conviction unless it prejudices and injustice results in miscarriage of justice. But, in the facts of the given case, learned counsel for the appellant has not been able to point out any material to take a different view to that arrived at by the trial court. However, he pointed out that there is a delay in sending a copy of the F.I.R. to the Magistrate wherein the Sub Inspector of Police received F.I.R. on 17.8.1992 at 8.45 p.m. and it was received by the Judicial Magistrate only on 18.8.1992 at 8.00 a.m. He also pointed out that no relevant materials regarding the treatment given to Bairappan at Bangalore was placed before the court and that the Sub Inspector of Police conducted the inquest instead of Inspector of Police. 19. On a perusal as per the evidence of P.W.19 it was found that the distance between the residence of the Judicial Magistrate and the police Station concerned, is about 11/2 kilometres. The accused appeared before the police station and lodged a complaint about the occurrence, which is inadmissible in Evidence Act. On the basis of the same investigation started and the Inspector of Police went to the scene of occurrence, examined the witnesses, and sent the injured to the hospital, in which time was taken. So only next day morning F.I.R. was sent to the Magistrate after verification. So far as the other argument that no records were placed before the court is concerned, it is seen that requisite records were called for from Bangalore Hospital, regarding the treatment given to the deceased Bairappan, and they came on record. Regarding the 3rd contention of the learned counsel for the accused, P.W.19 Inspector of Police had stated that he was busy in some other duty and so he asked the Sub Inspector of Police to conduct inquest. The trial court, considering the materials on record, came to the conclusion that these irregularities are not of such nature to vitiate the entire prosecution case. The trial court, considering the materials on record, came to the conclusion that these irregularities are not of such nature to vitiate the entire prosecution case. On consideration, we are also in full agreement with the trial Judge in these aspects and the learned counsel for the appellant cannot take advantage of these to set aside the conviction imposed on the accused. 20. The learned counsel for the appellant then argued that the accused has acted on sudden provocation. As culled out from the records, P.W.10 shouted at the accused, the accused went inside the house and brought M.0.11 Soori knife and stabbed Mookammal. While her grandson Chinnapaiyan alias Bairappan tried to prevent, the accused stabbed him also. It is also seen that the accused stabbed Bairappan and three witnesses also. Nothing has been suggested for such provocation. It is also seen on record that the accused has not uttered any word at the time of alleged quarrel by which it can be presumed that he was provoked to the extent of killing three persons. In such a fact situation, we find it difficult to accept that due to sudden provocation, the accused has acted. 21. Learned counsel next submitted that the act of the accused will not come under Sec.300, I.P.C. but will come only under Sec.304, Part I, I.P.C. Though there is no direct evidence, on gathering from the facts it will be seen that the injuries sustained on the deceased, which were so fatal would show that the injuries could not have been attributed incidentally, and the accused intended to cause those particular injuries knowing fully well with sufficient knowledge, that they are being inflicted on the vital parts and the injuries would likely cause death. Therefore, in our considered opinion the case of the accused does not fall in any one of the exceptions under Sec.300, I.P.C. 22. The learned counsel for the appellant then argued that the accused inflicted such injuries as right of private defence. There is no evidence to show that the appellant has apprehension of being killed or grievous hurt on the body or property. The learned counsel for the appellant then argued that the accused inflicted such injuries as right of private defence. There is no evidence to show that the appellant has apprehension of being killed or grievous hurt on the body or property. In the absence of any evidence to that effect, and the only plea under Sec.313, Crl.P.C. that along with the deceased party, there were few others, was not supported with any medical evidence, we are unable to accept the contention that the accused apprehended danger to his life. On seeing the medical evidence, it is seen that the mother of the accused got 2 stab injuries, that the father of the accused got a swelling and the accused has got three bruises, whereas the deceased and the injured persons sustained injuries, grievous in nature. Under such circumstances, we are unable to accept the plea of right of private defence, at this stage, in view of the facts and circumstances of the case, as stated. 23. So far as the argument that the accused has no intention to kill the deceased is concerned, it is seen that the accused carrying the dangerous weapon M.O.11, caused grievous injuries on Mookammal, Chinnapaiyan alias Bairappan and Bairappan which proved to be fatal. Admittedly, after stabbing Mookammal the accused repeated the same by stabbing on five other persons. Even assuming he had not intention at the first instance to commit murder, he acted in gruesome manner and so brutally, on the unarmed haplessold lady of 60 years, and a hapless boy of about 20 years. Not stopping with that, he stabbed Bairappan also. The accused further stabbed his sisters-in-law. The intervenor, P.W.4, who tried to snatch the knife also got injury: Under these circumstances, the appellant cannot take the plea that he had no intention. In view of this, as already stated, we are of the view, that the accused has full knowledge that it is so imminent danger in causing such injuries, which are fatal would certainly cause death. In such circumstances, it cannot be said that it is a homicidal not amounting to murder. In such compelling circumstances, and from the facts. We hold that with full knowledge and intention, the accused caused such fatal injuries on Mookammal, Chinnapaiyan alias Bairappan and Bairappan and as such, he is liable to be punished under Sec.302 (3 counts) I.P.C. 24. In such circumstances, it cannot be said that it is a homicidal not amounting to murder. In such compelling circumstances, and from the facts. We hold that with full knowledge and intention, the accused caused such fatal injuries on Mookammal, Chinnapaiyan alias Bairappan and Bairappan and as such, he is liable to be punished under Sec.302 (3 counts) I.P.C. 24. As stated earlier, by stabbing injuries, the accused, also attempted to murder P.Ws.l to 3 also. The conviction imposed on the accused under Sec.307 (3 counts) I.P.C. by the trial court stands confirrned,in view of our elaborate discussion, as stated above. 25. In so far as the conviction underSec.324, I.P.C. is concerned, it is seen that there is no evidence to show that the accused inflicted injury on P.W.4. The intervenor, P.W.4 himself tried to snatch the knife from the hands of the accused and got sustained the injury. So it cannot be said that the accused inflicted injury on P.W.4 by M.O.11. In such circumstances, the conviction imposed on the accused under Sec.324, I.P.C. cannot be held proved and as such, the appellant/accused is entitled for acquittal on that charge. 26. Now the question remains is whether the accused is liable to be awarded the capital punishment or a lesser punishment. 27. Though death sentence can be awarded in view of Sec.354(3), Crl.P.C. by giving special reasons, at the same time, death is an exception to the general rule, so also, the killing of number of persons cannot be a sole ground to bring the accused in the case of rarest of rare cases, to award capital punishment. In other words, large number of deaths on the other side, ipso facto will not make the case as the rarest of rare case. In A Devendran v. State of Tamil Nadu A Devendran v. State of Tamil Nadu, (1997)2 S.C.C. 720whereincourse of commission of dacoity three murders were committed by the accused. Their Lordships, while considering the question of capital punishment, held the it would not come in the rarest of rare case category. It is to be seen whether there exists any mitigating circumstances for which there can be communtation of death sentence to life imprisonment or there exists aggravating circumstances to bring the case within the principle of one of the rarest of rare case so that the penalty of death awarded would depend. It is to be seen whether there exists any mitigating circumstances for which there can be communtation of death sentence to life imprisonment or there exists aggravating circumstances to bring the case within the principle of one of the rarest of rare case so that the penalty of death awarded would depend. So while considering the facts which make the case as one of the rarest of rare cases, mitigating and aggravating circumstances had to be taken into consideration. In the instant case, 3 persons were killed. The occurrence had taken place at the residence of the accused, P.W.2, and P.W.10 were fighting with each others. P.W.10 shouted at the accused. Deceased Mookammal asked, “for how long this is the condition,” In such circumstances the accused got anger. It is settled proposition that who control the anger will conquer the world and who lost the control would fall into penury. The accused, in anger, went inside the house, brought M.O.11 and stabbed Mookammal. It is to be treated M.O.11 and stabbed Mookammal. It is to be noticed that he did not utter any word. It shows as to what degree, he was under the control of anger. The chain of transactions also would go to show that he could not come out of his anger. It is not a kind of provocation. It is nothing but anger, which passes on man to man. He attacked with the deadly weapon, whoever came to prevent him from doing so. So, while considering the mitigating circumstances, it is certain that he had no pre-determination to kill, nor did he plan. As stated, and the fact that the accused surrendered before the police station along with the weapon can be held to be mitigating circumstances for not confirming death sentence against him not being a case of rarest of rare case. As such, we hold that the accused Munusamy does not deserve the extreme penalty of death In our view, ends of justice will be served, if we commute the death sentence to life imprisonment. We answer this point accordingly. 28. As discussed above, in the result, we hold as follows: 1. Theaccused is guilty of offences under Secs.302 and 307, I.P.C. (each on 3 counts). 2. The accused is not guilty of the offence under Sec.324, I.P.C. and he is acquitted thereunder and Criminal Appeal No.821 of 1997 is allowed to that extent. We answer this point accordingly. 28. As discussed above, in the result, we hold as follows: 1. Theaccused is guilty of offences under Secs.302 and 307, I.P.C. (each on 3 counts). 2. The accused is not guilty of the offence under Sec.324, I.P.C. and he is acquitted thereunder and Criminal Appeal No.821 of 1997 is allowed to that extent. 3. Death sentence imposed on the accused is commuted one of life imprisonment under Sec.302, I.P.C. on 3 counts. Sentence imposed, under Sec.307, I.P.C. on 3 counts by the trial court, shall stand confirmed, The sentence to run concurrently. 4. The accused is entitled to set-off under Sec.428, Crl.P.C. 5. Order of the trial court regarding disposal of material objects shall stand confirmed. 29. Both the R.T.No.8 of 1997 and Criminal Appeal No.821 of 1997 are disposed of accordingly.