Honble MATHUR, J.–The learned Addl. Sessions Judge, Ratangarh, District Churu, by judgment and order dated 18.12.1998, in accordance with the provisions of Section 366 of the Code of Criminal Procedure, has submitted the proceedings of Sessions Case No. 11/94 for confirmation of death sentence awarded to the accused Sri Bhagwan on having found the charge proved that he in the intervening night of 14th and 15.12.1993 made entry in the house of PW 17 Shiv Pratap and committed the murder of his old father and mother namely Jora Ram aged 70 years and Smt. Ram Sukhi aged 60 years and three daughters Sangeeta aged 17 years, Saroj aged 15 years and Rena aged 11 years and looted their ornaments and other valuables. The accused Sri Bhagwan has also challenged by way of appeal his conviction and sentence under Sections 302, 392 r/w 397 IPC. For offence u/S. 302 IPC, he has been sentenced to death and to pay a fine of Rs. 200/-. For the offence u/Secs. 392 and 397 IPC, he has been sentenced to seven years rigorous imprisonment and to pay a fine of Rs. 200/-and in default of payment to further undergo one months simple imprisonment on each count. The sentences u/Secs. 392 and 397 IPC have been ordered to run concurrently. (2). The case set out by the prosecution is as follows: PW 17 Shiv Pratap is a goldsmith by occupation in village Bidasar. His family consisted of his old mother and father, wife, one son and three daughters. The son carries-on the occupation of goldsmith in Bikaner. Accused Sri Bhagwan was enga-ged as an apprentice by Shir Pratap about an year back from the date of incident. Once he was found committing theft of a piece of gold wire. He was reprimanded. However, he continued to indulge in such activities and, therefore, he was turned out. It is alleged that while leaving the shop, accused Sri Bhagwan threatened PW 17 Shiv Pratap that he will settle with him. The marriage of eldest daughter Sangeeta was fixed on 20.2.94 and, as such, for purchasing marriage articles. PW 17 Shiv Pratap and his wife PW 1 Smt. Bhanwari left for Jaipur on 14th Dec., 1993. They returned on 17th evening and on entry in the house, they found the dead bodies of father, mother and three daughters. The marriage of eldest daughter Sangeeta was fixed on 20.2.94 and, as such, for purchasing marriage articles. PW 17 Shiv Pratap and his wife PW 1 Smt. Bhanwari left for Jaipur on 14th Dec., 1993. They returned on 17th evening and on entry in the house, they found the dead bodies of father, mother and three daughters. Immediately, PW 17 Shiv Pratap at about 9.45 PM submitted a written FIR addressed to SHO, PS Chhapar stating inter alia that he alongwith his wife Smt. Bhanwari had gone to Jaipur on tuesday for purchase of certain articles in connection with his daughters marriage, scheduled on 20.2.1994. He returned by Bus to Bidasar at about 9 PM. When he reached to his house, he found that main gate open and the lights on. The inner gate of the house was close. His wife knocked the door but there was no response. He, therefore, climbed the wall and jumped in the compound of the house and opened the door. There was a lock on their bed room. However, the back door was open. He opened the drawing room. There is a room inside the room. In the said room, he found the dead bodies of his mother and father, lying smeared with blood. He then broke open the lock of the room, where he found the dead bodies of all the three daugh-ters, smeared with blood. The valuables were missing. He called Kishna Ram Jat and some other respectable persons and proceeded to the police Outpost. The report was submitted to PW 23 Ganesh Nath. SHO. PS, Chhapar, who was incidentally at that time at Police Outpost Bidasar, Ganesh Nath sent Head Constable P.W. 6 Inder Singh to Police Station, Chhapar. The said report Ex. P.8 was subsequently registered as FIR Ex. P.9 at Police Station, Chhapar, District Churu. A case was registered for the offences under Sections 460 and 380 IPC. He immediately proceeded to the place of incident. As it was night, the Panchnamas of the site could not be prepared but he recorded the statements of Shiv Pratap, Smt. Bhanwari and Murlidhar. In the morning, the inquest was prepared. The Chief Medical & Health Officer constituted three medical boards for post mortem of the dead bodies. The post mortem was performed by different medical boards. The apparels of all the deceased persons were seized and sealed. Necessary memos were prepared. In the morning, the inquest was prepared. The Chief Medical & Health Officer constituted three medical boards for post mortem of the dead bodies. The post mortem was performed by different medical boards. The apparels of all the deceased persons were seized and sealed. Necessary memos were prepared. The spot was sealed and security guards were posted. In the night of 18.12.93, accused Sri Bhagwan was arrested vide arrest memo Ex.P.89. The investigation was entrusted to Circle Officer, Sujan Garh. On 19.12.93, PW 24 Omprakash, Circle Officer Sujan Garh reached on the spot at 3 AM. The S.H.O., Chhapar, apprised him of the incident and investigation conducted by him. A special team consisting of the senior scientists of the Forensic Science Laboratory, Jaipur, also reached on the spot. During the site inspection, they found, near the dead bodies of Smt. Ram Sukhi and Jora Ram, two blood stained wooden pieces which were seized and sealed vide Ex. P.66. The police also seized human hair vide Ex. P.67. The blood stained bed sheets, pillow covers were seized and sealed vide Ex.P.69. Inside the house, there is a water tank where a tumbler and rope were lying. The rope was blood stained. which was seized and sealed vide Ex. P. 70. In another room in the same house, the dead bodies of Sangeeta, Saroj and Renu were lying. The police found an iron `Kunta and broken lock, respectively. On the interior side of the frame of the wooden gate, there were blood stained threads and ribbons, which were seized and sealed vide Ex. P.72. On the mattress, a golden earring was lying, which was seized vide Ex. P. 74, which belonged to one of three deceased girls. The earring was blood stained. A blood stained wooden hammer was lying near the wall, which was seized and sealed vide Ex. P. 75. Near the mattress, blood stained scissors was lying, which was seized vide Ex. P.76. There was blood scattered in the entire room. A sample of the clotted blood was taken vide memo Ex.P.77. One bed sheet and two pillow covers stained with human blood were seized vide Ex.P.78. Outside the room in the gallery, a mattress was lying with a pillow. There were hair on the pillow. The human hair from the pillow were seized vide Ex. P.79. A sample of the clotted blood was taken vide memo Ex.P.77. One bed sheet and two pillow covers stained with human blood were seized vide Ex.P.78. Outside the room in the gallery, a mattress was lying with a pillow. There were hair on the pillow. The human hair from the pillow were seized vide Ex. P.79. All these articles were seized and deposited in the Malkhana of the Police Station. The accused Sri Bhagwan while in police custody after making disclosure statement Ex.P.90 dated 19.12.93, led the police and got the blood stained `Kulhari recovered from the water tank inside the house of the victim vide Ex.P.80. The handle of the `Kulhari was broken and it contained blood stains on the handle as well as on its edges. On 20.12.93, the accused while in police custody after making disclosure statement Ex.P. 92 led the police to the house of his brother-in-law Ramu Ram in Sardar Sha-har. He entered in the room of the house where a bag of wheat was lying. He took out a box from the bag and produced before the police. The box contained certain blood stained ornaments, which were separately wrapped in a newspaper. The ornaments included one golden ring on which the alphabet `S in English language was engraved, a broken ring, a golden ear ring, golden `kanta (nose-pins) five in number and golden `lung (ear-pin). All the ornaments were blood stained. In addition, there were large number of other articles like pieces of gold wire, gold rings, some pieces of gold broken rings etc., which are ordinarily found with a person engaged in the occupation of a goldsmith. In the box, one wedding envelope containing gold power was lying. It was addressed in the name of PW 17 Shiv Pratap, sent by Shri M.C. Soni. On the newspaper, there were certain figures, written in the handwriting of Shiv Pratap. The blood stained articles were separately sealed vide memo Ex.P. 83. On the same day i.e. 20.12.93, a blood stained shirt of the accused was recovered in pursuance to his information. On 28.12.93, the accused gave another information. In pursuance thereof, valuable articles of the house of Shiv Pratap were recovered from the house of Ramu Ram, which included tape recorder, cassettes, a `lungi, a bag, few pants and iron box used for keeping gold ornaments. On 28.12.93, the accused gave another information. In pursuance thereof, valuable articles of the house of Shiv Pratap were recovered from the house of Ramu Ram, which included tape recorder, cassettes, a `lungi, a bag, few pants and iron box used for keeping gold ornaments. He also got recovered his own pant, which was blood stained. He pro-duced a blood stained bag from the mattress vide recovery memo Ex. P.94. It also contained currency notes of Rs. 525/-. The various memos were prepared as Ex.P. 94,84,85&85-A. Proceedings for identification of property was arranged in presence of PW 9 Shri Devendra Sharma, learned Judicial Magistrate, Ratangarh. The articles were identified by PW 17 Shiv Pratap. The ornaments sent to Chemical Analyst were reported to be stained with human blood by Serologist. The police completed the investigation and laid the charge sheet against the accused appellant for the offences u/Secs. 302, 397 and 201 IPC in the court of MJM, I Class, Sujan Garh. (3). The accused denied the charge and claimed trial. The prosecution in support of his case examined as many as twenty four witnesses and produced number of documents. The accused in his statement under Sec. 313 Cr. P.C. stated that he has been falsely implicated. He stated that his sister Leela was married to a person, who was insane. The marriage was dissolved by divorce. One Malji took her sister to Sandwa with a view to sell her. Malji and Shiv Pratap were friends. He objected to the sale of his sister as he was interested for her re-marriage. Thus, Shiv Pratap at the instance of Malji has falsely implicated him in a false case. The learned trial Judge found the prosecution case proved and, as such, held the appellant guilty of the offences under Secs. 302, 392 and 397 IPC. In the opinion of the trial court, it was a cold blooded murder with robbery in a most cruel manner taking away the lives of five innocent persons falling in the category of rarest of rare cases. The learned Judge accordingly, awarded the death sentence and has made reference to this court for confirmation. (4). We have heard Mr. I.S. Pareek, learned Additional Public Prosecutor, Mr. D.S. Shishodia Senior Advocate for the complainant and Mr. K.L. Thakur, learned counsel for the accused Sri Bhagwan. The learned Judge accordingly, awarded the death sentence and has made reference to this court for confirmation. (4). We have heard Mr. I.S. Pareek, learned Additional Public Prosecutor, Mr. D.S. Shishodia Senior Advocate for the complainant and Mr. K.L. Thakur, learned counsel for the accused Sri Bhagwan. In order to re-appreciate the evidence, we have scanned thoroughly the entire material on record. (5). PW 1 Smt. Bhanwari is the wife of PW 17 Shiv Pratap and mother of three deceased girls. She had gone with her husband on 14.12.1993 for purchase of certain articles in connection with the marriage of her daughter Sangeeta and on return, she found her father-in-law, mother-in-law and three daughters killed. She has given all details of the scene of occurrence. Nothing has been elicited in the cross examination to discredit the testimony of this witness. (6). PW 2 Murlidhar is the cousin brother of PW 17 Shiv Pratap. Deceased Jora Ram was his uncle. He is also a goldsmith and runs a shop near the shop of PW 17 Shiv Pratap. His house is also adjacent to the house of Shiv Pratap. He stated that on Tuesday (the day on which Shiv Pratap left for Jaipur i.e. 14.12.93), his uncle de-ceased Jora Ram was on the shop. In the evening, he was seen going alongwith Sri Bhagwan. Both of them entered in the house of Shiv Pratap. On the next day i.e. 15.12.93, the shop was not opened by his uncle Jora Ram. He thought that uncle Jora Ram might have gone to village Chhapar. He is an important witness of last seen. We shall deal with the criticism against this witness while dealing with the incriminating circumstance of ``last seen. (7). PW 3 Vijay Singh and PW 4 Bhagirath Lal are the panch witness of the dead bodies. PW 6 Indra Singh is the Constable, who brought the written report Ex. P.8 from Bidasar to Police Station, Chhapar. PW 7 Abdul Mazid is the Carrier of the sealed packets to F.S.L., Jaipur. PW 13 Surendra Singh is the Head Mohrir of Police Station, Chhapar, who registered the F.I.R. Ex. P.9. PW 20 Nath Mal is the photographer. He has proved photographs Ex. P.88 to Ex. P.93. PW 19 Moti Lal and PW 21 Jugal Kishore are the witnesses of recovery of articles. PW 11 Bhagwan Sahay, PW 12 R.K. Chaturvedi and PW 14 Dr. P.9. PW 20 Nath Mal is the photographer. He has proved photographs Ex. P.88 to Ex. P.93. PW 19 Moti Lal and PW 21 Jugal Kishore are the witnesses of recovery of articles. PW 11 Bhagwan Sahay, PW 12 R.K. Chaturvedi and PW 14 Dr. Girish Kumar Mathur are the members of the team from F.S.L. Jaipur. Dr. Girish Kumar has proved F.S.L. report Ex. P. 46. PW 12 R.K. Chaturvedi has proved Ex. P. 24. PW 16 Om Prakash is the witness of site plan Ex. P.50. PW 18 Jafar Hussain is a tailor. He identified the blood stained shirt belonging to the accused. He proved entries in Register Ex. P.48. PW 15 Panna Lal is the witness regarding the seizure of Register of tailor. PW 9 devendra Sharma is the Judicial Magistrate, who conducted the identification proceedings vide Ex.P.17 and Ex. P. 18. PW 10 Manak Chand has proved the wedding invitation card of 10th Dec., 1993. PW 5 Dr. Rajendra Kumar and PW 8 Dr. D.D. Chanana are the witnesses, who performed the post mortem of the five dead bodies. They have proved the post mortem reports as well as the injury report of the accused. PW 23 Ganesh Nath and PW 24 Om Prakash are the investigating officers. They have proved various memos prepared during investigation. Certain suggestions have been put to them regarding the lapses in the investigation which we shall deal with at the appropriate stage. (8). PW 17 Shiv Pratap is the unfortunate person, whose father, mother and three children died in the incident. He lodged the F.I.R. He is the witness of prepa-ration of site plan and recovery of various incriminating articles. Inspite of lengthy cross examination, nothing has been elicited on the basis of which the testimony of this witness can be discredited. (9). The homicidal death of Jora Ram, Smt. Ram Sukhi, Sangeeta, Saroj and Renu has been proved by oral and medical evidence. All the post mortem reports have been admitted by the defence. P.W. 5 Dr. Rajendra Kumar stated that C.M. & H.O., Ratangarh, constituted a medical board to perform the post mortem of the dead body of Smt. Ram Sukhi aged 60 years and Sangeeta aged 17 years. The Medical Board found the following injuries on the person of deceased Smt. Ram Sukhi vide Ex. P. 6 as follows: ``1. P.W. 5 Dr. Rajendra Kumar stated that C.M. & H.O., Ratangarh, constituted a medical board to perform the post mortem of the dead body of Smt. Ram Sukhi aged 60 years and Sangeeta aged 17 years. The Medical Board found the following injuries on the person of deceased Smt. Ram Sukhi vide Ex. P. 6 as follows: ``1. Incised wound on left side of face-5" x 6" x bone deep with complete removal of skin, facia, muscle, blood vessels, lt, eye, It, external ear & left part of upper lip & a part of It, part of frontal & It, maxillary bone with clean & sharply cut margins. 2. Incised wound 6" x 2" x bone deep on It, side of nape of neck, obliquely placed with tail of would on anterior side with sharp margin. 3. Incised wound 1 1/2" x 1/2" x bone deep, 1" above the medial side of Right eye brow with sharp margin. 4. Incised wound completely cutting the left little finger at proximal phalynx, which is hanging with skin tag. 5. Incised wound completely cutting It, Ring finger at proximal phalynx with sharp margin. 6. Incised wound 1" x 1/4" x bone deep with clean margin on Lt. middle finger at the middle phalynx." In the opinion of the Board, the cause of death was shock and haemorrhage due to multiple injuries. All the injuries were ante mortem in nature. (10). The same Board also performed the post mortem of dead body of deceased Sangeeta vide Ex. P.7. The Board found the following injuries on her person; ``1. Incised wound 4" x 1" x bone deep over Rt. fronto parietal region 1" lateral and parallel to median line. Margins are sharply cut. 2. Incised wound 1 1/2" x 1/2" x bone deep on Rt. side of forehead 2" above the lateral margin of Rt. eye brow with fracture of underlying bone. 3. Incised wound 2 1/2" x 1/2" x bone deep over Rt. parietal region 4" above the Rt. external ear. 4. Incised wound 2 1/2" x 1 1/2" x 1 1/2" anteriorly over thyroid cartilage cutting the thyroid cartilage and underlying muscles and blood vessels of neck. Margins are sharply cut." In the opinion of the Board, the cause of death was shock and haemorrhage due to multiple injuries. All the injuries were found to be ante mortem in nature. (11). Incised wound 2 1/2" x 1 1/2" x 1 1/2" anteriorly over thyroid cartilage cutting the thyroid cartilage and underlying muscles and blood vessels of neck. Margins are sharply cut." In the opinion of the Board, the cause of death was shock and haemorrhage due to multiple injuries. All the injuries were found to be ante mortem in nature. (11). The post mortem of the dead body of deceased Jora Ram aged 70 years was performed by PW 8 Dr. D.D. Chanana and Dr. S.B. Pandey vide Ex. P. 12. Following external injuries were found on the person of Jora Ram: ``1. Incised wound 2" x 1/4" x scalp deep on left side of the forehead with clean cut eges obliquely with clotted blood. 2. Incised wound 3" x 1" x bone deep with missing of the whole cartilage with cutting the nasal bone & cartilage with blood clots. 3. Incised wound 4" x 2" x muscle deep on left side of neck cutting the blood vessels of the neck with clotted blood. The would is gaping in the centre with cut edges obliquely. 4. Incised wound 5" x 1" x bone deep extending from the lower part of the chin to the root of the left ear lower side with exposure of the left mandible with cut edges & blood clots obliquely. 5. Incised wound 3" x 3/4" x scalp deep on the left occipital region obliquely with blood clots. 6. Incised wound 2" x 1/2" x skin deep on the Rt. side of the cheek with clean cut edges & blood clots. 7. Incised wound 2" x 3/4" x bone deep ib the Rt. hand at the root of the thumb & index finger at dorsal side with clotted blood. 8. Incised wound 1" x 1/4" x bone deep on right thumb ventral aspect with clotted blood. 9. Abrasion 1/2" x 1/2" on the terminal phalanyx of the Rt. middle finger dorsal aspect. 10. Incised wound 2" x 1/2" x skin deep on right side of the neck with blood clots. 11. Multiple incised wound of varying sizes on the right side of the occipital region with the blood clots, spindle shape. 12. Lacerated wound involving the whole of the left thumb with multiple fractures with exposure of the bones on the dorsal aspect of left thumb. 13. 11. Multiple incised wound of varying sizes on the right side of the occipital region with the blood clots, spindle shape. 12. Lacerated wound involving the whole of the left thumb with multiple fractures with exposure of the bones on the dorsal aspect of left thumb. 13. Incised wound 2" x 1" x whole of the left index finger is missing with exposure of the bone with blood clots. 14. Incised wound 1 1/2" x 1/4" x skin deep on left hand dorsal side outer aspect with clean cut edges. 15. Incised wound 2" x 1/4" x spine deep in middle 1/3rd of back obli-quely with blood clots. 16. Multiple small incised would of varying sizes on the left side of the back and middle 1/3 rd, 2" lateral to the injury No. 15." In the opinion of the doctor, Jora Ram died of shock due to haemorrhage caused by multiple injuries. All the injuries were ante mortem. (12). The post mortem of dead body of Renu aged 11 years was performed by Dr. D.D. Chanana and Dr. S.B. Pandey vide Ex. P.13. Following injuries were found on her person: ``1. Incised wound 2 1/2" x 1" x 2" cutting the trachea & esophagus gaping in the centre with the clean cut edges & making the tail towar-ds the left side cutting the muscles, blood vessels of the neck with the clotted blood in the anterior part of the neck. The thyroid gland, cartilage are cut, blood stained & blood clots present. 2. Incised wound 1" x 1/4" x skin deep with clean cut margins obliquely towards the Rt. side of neck 1" lateral & above to injury No.1. 3. Incised wound 1" x 1/4" x skin deep 1/2" above & lateral to injury No.1 on left side obliquely with blood clots. 4. Bruise 2" x 2" on the left hand radial side on the root of the thumb. 5. Bruise 5" x 5" with depression of the skull on the Rt. side on the frontal part of the forehead & parietal region. 6. Blood clots present per ear Rt. She died due to shock caused by haemorrhage and head injury. The injuries were ante mortem. (13). The post mortem of dead body of Saroj aged 15 years was performed by Dr. G.D. Sharma and Mana Ram Mamdar vide Ex.P.14. Following injuries were found on the person of Saroj: ``1. 6. Blood clots present per ear Rt. She died due to shock caused by haemorrhage and head injury. The injuries were ante mortem. (13). The post mortem of dead body of Saroj aged 15 years was performed by Dr. G.D. Sharma and Mana Ram Mamdar vide Ex.P.14. Following injuries were found on the person of Saroj: ``1. Lacerated wound 3" x 2" x 1" over Right occipital region of scalp, 3" away from pinna. 2. Lacerated wound 5" x 3" x 2" over left occipito parietal region underline bone is fractured, fracture is linear in nature of both parietal and occipital bone. 3. Incised wound front neck 4" x 1" reaching upto trachea and cutting it. In the opinion of the doctors, the cause of death was due to shock because of multiple injuries. All the injuries were ante mortem. (14). Thus, from the medical evidence referred-to above and the statements of the various prosecution witnesses viz; PW 1 Smt. Bhanwari, PW 17 Shiv Pratap, and PW 2 Murlidhar, it is established that Jora Ram, Smt. Ram Sukhi, Sangeeta, Saroj and Renu died of homicidal death. (15). It is contended by Mr. K.L. Thakur learned counsel for the appellant that the circumstance relied-on by the prosecution before the trial court have not been firmly established and that in any case, they are not enough to bring home the offen-ce of the accused. He has also pointed out various infirmities in the investigation. He also contended that in the facts and circumstances of the case, the learned Jud-ge has committed error in awarding death sentence as the case does not fall in the category of rarest of rare cases. On the other hand, learned Public Prosecutor and learned counsel for the complainant have supported the judgment of the trial court. (16). Various pieces of circumstances relied upon by the prosecution can be briefly stated as follows: (i) that one of the deceased Jora Ram was last seen in the company of the accused Sri Bhagwan; (ii) recovery of blood stained `kulhari from the possession of the acc-used in pursuance of the information given by him; (iii) recovery of blood stained gold articles from the possession of the accused; (iv) recovery of blood stained shirt of the accused in pursuance of his information; (v) Unexplained injuries on the person of the accused at the time of arrest. (17). (17). The circumstantial evidence means a combination of facts creating a network through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. It is, thus, often said that a person can lie but the circumstances can not. It is now well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accu-sed. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis, save that of the accuseds guilt. Thus, there must be a chain of evidence so far complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Bearing the aforesaid principle in mind, we proceed to examine each piece of circumstances. (18). That one of the deceased Jora Ram was last seen in the company of the accused Sri Bhagwan: PW 2 Murlidhar stated that he knew accused Sri Bhagwan as he had worked on the shop of PW 17 Shiv Pratap for 8 to 10 months. Shiv Pratap alongwith his wife had gone to Jaipur for purchase of articles in connection with the marriage of his daughter on 14.12.93, the day on which Pratap left for Jaipur, his uncle Jora Ram had opened the shop. In the evening when he was closing the shop, accused Sri Bhagwan was with him. He also closed the shop and proceeded towards his house, which is adjacent to the house of Shiv Pratap. His uncle Jora Ram and accused were ahead of him. He saw his uncle Jora Ram and accused Sri Bhagwan entering in the house. Jora Ram was not seen alive thereafter. On the next day i.e. on Wednesday, the shop was not open. He did not see his uncle Jora Ram. His uncle Jora Ram and accused were ahead of him. He saw his uncle Jora Ram and accused Sri Bhagwan entering in the house. Jora Ram was not seen alive thereafter. On the next day i.e. on Wednesday, the shop was not open. He did not see his uncle Jora Ram. On 17th, when his brother Shiv Pratap and Bhabhi returned on hearing their cries, he came to know about the killing of his uncle Jora Ram, aunty and three girls. In the cross examination, he stated that deceased Jora Ram opened the shop on Tuesday and thereafter the shop was closed on Wednesday, Thursday and Friday. He also explained that he did not enquire about non opening of shop by Jora Ram, as he thought that he might have gone to Chhapar, where his elder son Ram Pratap resi-des. It is evident that on 14th, the day on which Shiv Pratap left, was Tuesday, Murlidhar had seen Jora Ram on the shop on that day, on Wednesday, Thursday and Friday i.e. 15th, 16th and 17th respectively, the shop remained closed. On 17.12.93, all came to know of the incident when Shiv Pratap opened the house on return from Jaipur at 9 PM. Thus, in all probability, the murder must have taken pla-ce during the intervening night of 14th and 15.12.1993. Thus deceased Jora Ram was seen last in the company of accused Sri Bhagwan in the evening of 14th December entering in the house, where the murders of five persons took place, just within couple of house. A criticism has been made against the statement of PW 2 Murlidhar that this fact does not find place in the F.I.R. Murlidhar was one of the persons who reached on the spot at the earliest and if the fact is true, he must have disclosed to Shiv Pratap, arousing immediate suspicion on accused Sri Bhagwan, Shiv Pratap has not expressed doubt on any body in the F.I.R. In our view, there is no substance in the criticism. The statement of Murlidhar has been recorded on the same day just after filing of the F.I.R. and in the said statement, the fact with respect to the last seen finds place. The statement of Murlidhar has been recorded on the same day just after filing of the F.I.R. and in the said statement, the fact with respect to the last seen finds place. PW 17 Shiv Pratap in the cross examination has stated that though PW 2 Murlidhar stated that fact about the visit of Sri Bhagwan to his father Jora Ram but he was in such a mental state that he could not immediately suspect and incorporate the said fact in the F.I.R. In our view, the explanation appears to be correct. It is quite natural that one may not im-mediately suspect before taking stock of the entire situation. Thus, in our view, the first evidentiary circumstance of ``last seen has been firmly established by cogent evidence. (19). Recovery of blood stained `kulhari from the possession of the accused in pursuance of the information given by him; On 19.12.93, accused Sri Bhagwan while in police custody after making a disclosure statement before PW 24 Omprakash, the Investigating Officer, vide Ex.P.90, led the police party and got recovered blood stained Kulhari vide Ex. P.80 from the water tank inside the house of PW 17 Shiv Pratap. The wooden handle of the kulhari was found broken. There was blood on the handle as well as edges of the blade of the kulhari. PW 16 Omprakash and PW 17 Shiv Pratap are the witnesses of recovery. Incriminating articles including kulhari and the wooden pieces found on the scene of occurrence were sent to the Forensic Science Laboratory for chemical examination. Prosecution has led evidence to show that the articles were kept sealed and intact and they were delivered in same condition in the Forensic Science Laboratory. PW 13 Surendra Singh has stated that on 19.12.93, Shri Om Prakash, Dy. S.P., handed over sixteen sealed packets to him. He made entries of the said packets in the Malkhana Register as item No. 79. P.W. 7 Abdul Majid, Head Constable at Police Station Chhapar, has stated that on 9.2.94, Head Mohrir Suren-dra Singh of S.P. Office, Churu vide letter Ex. P. 10 entrusted him twenty sealed packets for delivery in Forensic Science Laboratory at Jaipur. He also stated that he delivered those articles in the laboratory and obtained receipt Ex. P. 11. It appears from the F.S.L. report Ex. P. 96 that twenty packets under letter dt. P. 10 entrusted him twenty sealed packets for delivery in Forensic Science Laboratory at Jaipur. He also stated that he delivered those articles in the laboratory and obtained receipt Ex. P. 11. It appears from the F.S.L. report Ex. P. 96 that twenty packets under letter dt. 5.2.94 of the S.P., Churu, were received on 9.2.94 from Shri Abdul Majid. The packets were properly sealed bearing impressions which tallied with the specimen seal impressions. The parsal packet No. `T was marked by the Assistant Director, Serology as Exhibit No. 29. The said item is a `kulhari. On examination, Serologist opined that the `kulhari was stained with human blood. Similarly, two pieces of wood in packet No. F were marked as Exhibits No. 16/1 and 16/2. They were also found stai-ned with human blood. Further vide Ex. P. 97, Serologist opined that pieces of wood exhibited 16/1 and 16/2 belong to the broken wooden handle of the axe, Ex. 29. Thus, the prosecution has established the recovery of blood stained kulhari at the instance of the accused and the blood stained wooden pieces found on the scene of occurrence belonging to broken handle of the recovered kulhari. (20). It is contended by Mr. K.L. Thakur, learned counsel for the appellant that where the fact is already known by the police, that cannot be a discovery again of that fact as a result of the statement made by the accused subsequent to the original discovery. It is submitted that on 19.12.93 before the accused gave information vide Ex. P. 90, the site memo was prepared by the Investigating Officer vide Ex. P. 50 in which the water Tank has been shown. Thus, the water tank was seen by the Investigating Officer and other witnesses. It is further submitted that when the Water Tank was seen, they must have located the `kulhari at that time. Thus, the existence of the `kulhari in the Water Tank was known to the police before the accused alleged to have given information vide Ex. P.90. In this regard, PW 24 Om-prakash in the cross examination has stated that the Tank was full of water and the `kulhari was not visible and, as such, they had no knowledge about the existence of `kulhari in the Water Tank. It appears from Ex. P.50 and also the photographs of the Tank that it is not an open Tank. In this regard, PW 24 Om-prakash in the cross examination has stated that the Tank was full of water and the `kulhari was not visible and, as such, they had no knowledge about the existence of `kulhari in the Water Tank. It appears from Ex. P.50 and also the photographs of the Tank that it is not an open Tank. There is a small opening of the Tank. Thus, the explanation given by the Investigating Officer PW 24 Omprakash appears to be co-rrect that `kulhari was not visible, when they inspected the Water Tank at the time of the inspection of the site. Thus, in our view, there is no substance in the contention raised by the learned counsel. (21). It is also contended that there could not be any blood on the `kulhari as even if there was any blood on the `kulhari, when it was thrown in the Water Tank, the blood must have been washed out. In our view, there is no substance in the contention as once the blood is clotted, it cannot be washed out simply because the `kulhari remained in the Water Tank. Once the blood is clotted, unless efforts are made to remove the blood spots, it does not disintegrate and disappear just by coming into contact with the water. Thus, there is no substance in second limb of contention as well and the same is, accordingly, rejected. (22). Thus, recovery of blood stained `kulhari at the instance of the accused being proved, the unexplained possession and concealment of the weapon, coupled with the fact of recovery of other pieces of the handle from the scene of occurrence, is a strong incriminating circumstance pointing to the guilt of the accused Sri Bhagwan. (23). Recovery of blood stained gold articles from the possession of the accused: The Investigating Officer PW 24 Omprakash stated that on 20.12.93 at 7.00 AM, the accused Sri Bhagwan while in police custody voluntarily disclosed that the bag containing gold articles which he had stolen from the house of Shiv Pratap and a box containing the ornaments taken from the dead bodies of Smt. Ram Sukhi, Sangeeta, Saroj and Renu are concealed in a bag of wheat lying in the residential house of his brother-in-law Ramu Ram in the city of Sardar Shahar, which he can get recovered. He recorded the said information vide Ex. P. 92. He recorded the said information vide Ex. P. 92. He further stated that accused Sri Bhagwan led the police party to the house of Ramu Ram. He entered in the house, reached to the place where bag of wheat was lying, opened the same and took out a concealed box of ornaments. A gold ring on which ``S in English alphabet was engraved, a broken gold ring, gold ear ring, a nose pin were wrapped in a newspaper. There were small stains of blood on some of the articles. Some more articles were taken out from a small box of ``Baba Jafrani tobacco. We shall first deal with articles found wrapped in the newspaper. On chemical examination, the Serologist expressed that there was not sufficient blood on the ornaments for test. However, vide Ex.P.97, he opined that gold ear ring recovered from the possession, marked as Ex. P. 30 and another gold ear ring found at the place of incident and marked as N-1 are similar in respect of the design, size, surface and fabrication characteristics, lustre, metalic contents and other physical characteristics. Thus, the two gold ear rings is a pair belonging to one person. As ear ring Exhibit N-1 was found on a blood stained mattress from the room where the dead bodies of three girls were lying, a reasonable inference can be drawn that it belongs to the family of PW 17 Shiv Pratap. The recent unexplained possession of gold ear ring Ex. P.30 being similar to gold ear ring recovered from the spot, leads to the conclusion that it forms a pair of golden ear ring belonging to the deceased. A criticism has been made that the recovery of the said ornaments is of no use as these articles, though identified by PW 17 during trial but it is not preceded by identification proceedings. Section 9 of the Evidence Act deals with the relevancy of facts necessary to explain. The evidence of identification is a relevant piece of evidence under Sec. 9 where the evidence consists of identification of anything at the trial, the statement of witness made in the court with respect to the identifica-tion of a thing is the substantive evidence but from its very nature, it is inherently of a weak character. The evidence of identification in test identification proceedings is not a substantive evidence but is only corroborative evidence. The evidence of identification in test identification proceedings is not a substantive evidence but is only corroborative evidence. If a witness identifies a thing in the court first time after a long time, the probative value of such uncorroborative evidence becomes minimal. But unexplained possession of stolen articles soon after the crime and if such articles are similar to the article found on the scene of the occurrence belonging to victim, even in absence of corroborative evidence by way of test identification proceedings, provides a strong probative link, in the chain of circumstances in a murder case. In the instant case, a gold ear ring found on 18.12.1993 in the room in which the murder of three girls alleged to have taken place, is similar to the ear ring found in possession of the accused. As per the opinion of the Serologist, the ear ring recovered vide Ex.P. 30 and the ear ring found on the spot Ex.N-1 are similar. This fact provides corroboration to the statement of PW 17 Shiv Pratap when he identified these ornaments in the court as belonging to his deceased daughters. (24). The second set of ornaments, which have been recovered vide memo Ex.P.83 in pursuance of the information Ex.P. 94 are the articles, which are normally found with a person engaged in the occupation of a goldsmith. PW 17 Shiv Pratap is a goldsmith by occupation and runs a shop at Bidasai. He has stated that he used to keep a bag for carrying gold or silver articles finished or unfinished etc. from home to shop and shop to home. He also stated that he had hanged the bag on wall as usual while leaving for Jaipur. The accused, who had worked with PW 17 Shiv Pratap for 8 to 10 months knew this fact. He also stated that on return from Jaipur, he did not find the bag in which he used to keep the ornaments. He also found that the box in the room was lying open. It is of-course true that the accused is also a goldsmith but he does not have his own shop. After leaving the shop of PW 17 Shiv Pratap about three months back, he was not carrying-on the occupation anywhere else. He has not claimed the articles. Thus, the possession of the said articles with the accused is unexplained. It is of-course true that the accused is also a goldsmith but he does not have his own shop. After leaving the shop of PW 17 Shiv Pratap about three months back, he was not carrying-on the occupation anywhere else. He has not claimed the articles. Thus, the possession of the said articles with the accused is unexplained. All these articles have been identified by PW 17 Shiv Pratap during identification proceedings. The identification proceedings Ex.P.18 has been proved by PW 18 Devendra Sharma, Civil Judge (J.D.) cum Judicial Magistrate, Ratangarh. Learned counsel has failed to point out any serious infirmity in the identification proceedings. The most incriminating recovery is of an envelope containing gold powder addressed in the name of PW 17 Shiv Pratap. The envelope was from P.W. 10 Manak Chand. Shiv Pratap P.W. 17 has stated that he received a wedding invitation on 10.12.93 i.e. four days prior to the date of incident from Manak Chand. He had collected `burada (gold powder) in the said envelope and kept the same in the bag alongwith other articles. His statement finds corroboration from the statement of P.W. 10 Manak Chand, when he stated that he had sent the wed-ding invitation to Shiv Pratap. Accused has not given any reason as to how the said envelope came in his possession. The prosecution has succeeded in establishing the second piece of incriminating circumstance. Thus, a presumption under illustration (a) of Sec. 114 of the Evidence Act may be drawn that the accused Sri Bhagwan from whose possession the stolen articles including the envelope refer-red to above, has been recovered and remained unexplained, committed theft in the house of Shiv Pratap. This leads to the inference that robbery of the aforesaid articles and murders were the part of same transaction. (25). Recovery of blood stained shirt of the accused in pursuance of his information: The investigation officer PW 24 Omprakash has stated that on 20.12.93 At 2 P.M., the accused while in police custody voluntarily gave information that the shirt which he was wearing at the time of the incident, was thrown by him while travelling in the bus from Sujangarh to Chhapar. The information was recorded as Ex.P.93. In pursuance of the said information, a blood stained shirt was recovered at the instance of the accused lying in a shrub. The police prepared recovery memo Ex.P.82. The information was recorded as Ex.P.93. In pursuance of the said information, a blood stained shirt was recovered at the instance of the accused lying in a shrub. The police prepared recovery memo Ex.P.82. The recovery is supported by the motbirs, PW 17 Shiv Pratap and PW 16 Omprakash. A criticism has been made by Mr. Thakur, learned counsel for the appellant that the recovery is of no consequence as it is from open and sundry place. The evidence shows that on the road from Sujangarh to Chhapar, ahead of village Mangalia, there is milestone of 3 km. On the site, there is a wire fencing. Inside the wire fencing, there are shrubs. The shirt was found in one of the shrubs. Thus, it cannot be said that the shirt was recovered from an open and sundry place. The shirt was seized and sealed alongwith the other articles. It was sent for chemical examination in packet `E. The Serologist marked the shirt as Ex. P.15, which was found stained with human blood. The shirt bears the sticker of the tailor on the collar as J.K. Tailors. PW 18 Jafar Hussain identified the shirt saying that it was stitched by him. He also stated that for the persons visiting his shop, he enters their names and the measurements necessary for the purpose of stitching the cloths. Seeing the register, Art. `17, it was pointed out by him that at item No. 427, the name of Sri Bhagwan is entered. He also stated that as per the Register, the shirt was delivered to Sri Bhagwan on 10.12.93. i.e. only four days prior to the date of incident. He also identified Sri Bhagwan. (26). We ourselves have seen the Register and also the shirt. In the margin of the cuff, numerical 427 is written. This tallies with the number at which the name of Sri Bhagwan appears in the Register, article `17. Thus, it can safely be concluded that the recovered shirt is of none other than the accused appellant himself. The shirt is stained with human blood. The accused has not given any explanation with respect to the presence of the human blood on the shirt. The proved circumstance is of incriminating character providing link, pointing to the guilt of the accused. (27). The shirt is stained with human blood. The accused has not given any explanation with respect to the presence of the human blood on the shirt. The proved circumstance is of incriminating character providing link, pointing to the guilt of the accused. (27). Unexplained injuries on the person of the accused at the time of arrest: The accused was arrested on 18.12.93 vide Ex.P.89. The police found injuries on the palms and fingers of the accused. PW 8 Dr. D.D. Chanana has stated that he examined the accused on 19.12.93 and found the following injuries on his person vide Ex. P.15: ``1. Incised wound 1cm x 1/4cm x superficial skin deep with dry scab formation obliquely at the base of right index finger first metacarpoph joint on ventral aspect: 2. Multiple abrasion on the thumb, fingers, palm which are scattered and superficially on the ventral aspect; 3. Multiple small superficial scratches on the palm and fingers on ventral aspect. (28). The injury report Ex.P.15 is admitted by the accused. With respect to the said injuries in his statement under Sec. 313 Cr.PC, the accused has simply denied the existence of such injuries by saying that PW 8 Dr. D.D. Chanana was speaking lie. We have no reason to disbelieve the statement of Dr. Chanana. As per the say of PW 24 Omprakash, a blood stained scissors was found near the mattress in the room where the dead bodies of three girls were lying. In the facts of the case, we are inclined to take the view that one of the girls might have defended herself by picking up the scissors, which is ordinarily available in a family and while snatching the said scissors, accused must have sustained injuries on the palms and fingers. Be that as it may, in absence of explanation of the injuries, this piece of evidence is an important incriminating circumstance against the accused appellant. The pro-secution has succeeded in firmly establishing the said circumstance. (29). Before we examine the cumulative effect of the aforesaid incriminating circumstances to draw conclusion with respect to the guilt of the accused, we consider it appropriate to deal with the general criticism made by learned counsel for the accused Sri Bhagwan. (30). Firstly, it is contended that the prosecution has deliberately not produced material witness viz; Kishna Ram and as such as adverse inference should be drawn against the prosecution. (30). Firstly, it is contended that the prosecution has deliberately not produced material witness viz; Kishna Ram and as such as adverse inference should be drawn against the prosecution. It is submitted that PW 17 Shiv Pratap has stated in the FIR that Kishna Ram was one of the persons, who reached on the spot at the earliest. In our view, there is no substance in the contention. Kishna Ram is not an eye wit-ness of the incident. Even if he would have appeared, he would have described only the scene of the occurrence. Thus, in our view, Kishna Ram is not at all a material witness. PW 24 Omprakash has stated that as Kishna Ram was not inclined to give evidence, his name was not given in the list of witnesses. (31). It is next submitted that looking to the large number of injuries on the bodies of five deceased persons, it is improbable that this could be the act of accused Sri Bhagwan alone. It is further submitted that post mortem report shows that the injuries were of different nature caused by different weapons i.e. incised wounds and lacerated wounds. It is, thus, submitted that three different weapons have been used by more than one person. The contention deserves to be rejected for more than one reason. Firstly, if there is cogent and reliable evidence to connect the accused with the crime, prosecution case can not be rejected on surmises and conjectures. Secondly, all the ornaments and other articles stolen from the house of P.W. 17 Shiv Pratap have been recovered from the possession of the accused Sri Bhagwan alone. If there were more than one person, the booty would have been distributed among them. Thirdly, there is nothing unusual in using three weapons by one accused. It appears that accused left no chance of anybodys survival, lest they may figure as witness. The police in addition to recovery of `kulhari from the possession of the accused has also recovered a wooden hammer and scissors from the place of incident. In the facts of the case, we are inclined to take a view that accused must have used kulhari as a main weapon of offence, and used other articles whatever he could get at the moment in the course of commission of crime, like hammer and scissors. In the facts of the case, we are inclined to take a view that accused must have used kulhari as a main weapon of offence, and used other articles whatever he could get at the moment in the course of commission of crime, like hammer and scissors. Thus, use of different weapons by one person in the facts of the case is quite natural and probable. (32). It is also contended that Ramu Ram, from whose house, recoveries have been made, has not been examined by the prosecution. This contention also deserves to be rejected for the reason that Ramu Ram is none else than the brother-in-law of the accused. As such, even if he would have appeared, he would not have supported the prosecution case. The recovery has, otherwise been proved by other reliable and cogent evidence. (33). Learned counsel has pointed out certain infirmities in the investigation. It is submitted that as to why the finger prints from the various articles seized, were not taken and as to why the owners of the different articles which were with PW 17 Shiv Pratap for making ornaments, were not produced ? At the first instance, there is no infirmity in the investigation. Even if there is any infirmity, it is well settled that infirmities in investigation cannot be a ground for disbelieving the prosecution case, proved otherwise by cogent and reliable evidence. Accordingly, the contention is rejected. (34). It is also contended by the learned counsel that it is difficult to conceive that accused Sri Bhagwan would have committed ghastly murders, just to settle the score with Shiv Pratap on a minor issue that he was turned out from the apprenticeship. Per contra, learned Public Prosecutor submitted that the prosecution has not set out the motive for committing the ghastly crime by the accused. It appears that PW 17 Shiv Pratap has given the said reason as one of the suspected reasons for committing the crime by the accused Sri Bhagwan. It is not always necessary to search for the motive, if the evidence otherwise is available connecting the accused with the crime. It appears that accused had developed mentality to earn money by fouled means. P.W. 17 Shiv Pratap has stated that accused Sri Bhagwan was found committing theft of gold twice for which he was reprimanded. When inspite of warning he did not improve, he was turned out. It appears that accused had developed mentality to earn money by fouled means. P.W. 17 Shiv Pratap has stated that accused Sri Bhagwan was found committing theft of gold twice for which he was reprimanded. When inspite of warning he did not improve, he was turned out. The accused was aware of the plan of the house of victim. He knew the schedule and working of Shiv Pratap. It is probable that he was in search of the appropriate occasion and got it when Shiv Pratap and his wife had gone out for three to four days. The circumstances cl-early indicate that motive for the crime was financial gain. (35). In view of the aforesaid discussion, we conclude that the prosecution has succeeded in establishing the various links firmly pointing towards the guilt of the accused. The combined effect of these facts taken together leads to an irresistible conclusion that the crime of robbery and murder of five persons in the house of PW 17 Shiv Pratap was committed by the accused Sri Bhagwan and none else. Accordingly, the conviction of the accused Sri Bhagwan for the offence u/S. 302, 392 and 397 IPC is upheld. (36). Now, the question arises for consideration is ``Whether the Murder Reference should be accepted and death sentence be confirmed? (37). At the outset, it is contended by Mr. K.L. Thakur learned counsel for the appellant that the accused was not heard by the trial court on the point of sentence and, as such, there is violation of mandatory provisions on Sec. 235 (2) Cr.P.C. Reliance is placed on the decision of the Apex Court in Allaudin Mian vs. State of Bihar (1). The contention is not factually correct. The judgment of the trial court at page 331 of the paper book clearly speaks that the accused was heard on the point of sentence in accordance with the provisions of Sec. 235(2) Cr.P.C. A submission was made before the trial court that the accused is a person of young age. He has remained in jail for five years and, as such, he may be awarded the minimum sen-tence. The accused did not produce any evidence on the point of sentence. Learned counsel for the accused was heard at length on the point of sentence. He has remained in jail for five years and, as such, he may be awarded the minimum sen-tence. The accused did not produce any evidence on the point of sentence. Learned counsel for the accused was heard at length on the point of sentence. The learned trial court was conscious that for awarding the death sentence as required by the provisions of Sec. 54 (3) of the Code of Criminal Procedure, the special reasons are required to be recorded. The trial court after bearing in mind the prin-ciples laid down by the Apex Court and this court considered the mitigating and aggravated factors for awarding the sentence. The trial court took into consideration that the accused gained the confidence of the aged person deceased Jora Ram and made entry in the house and executed the plan by committing robbery and murder. The accused wiped out the entire family for the financial gain. Thus, in the opinion of the trial court, it was a case falling in the exceptional category of rarest of rare cases. The learned Judge accordingly awarded the death sentence and submitted the record and proceedings of the case to this court for confirmation of the death sentence. Still to do complete justice as agreed by all the learned counsel for the accused and learned Public Prosecutor, by order dated 8.7.99, we directed to produce the accused appellant Sri Bhagwan before us for hearing on the point of sentence. On 15.7.99, the accused was produced before us. He was given full opportunity to talk to his counsel and instruct appropriately. We ourselves also heard the accused on the point of sentence. We also enquired about the family background of the accused Sri Bhagwan. He states that he studied upto fifth class. He is required to look after his mother and brother aged 8 years in the family. The accused pleaded that he is innocent and he has been falsely implicated. (38). Mr. K.L. Thakur, learned counsel for the appellant has pointed-out certain mitigating circumstances for not confirming death sentence awarded by the trial court. It is submitted that the accused was 20 years of age at the time of the incident and, as such, he is a youth. It is also submitted that the accused has remained in jail for more than six years. He has to look after his old mother and younger brother in the family. It is submitted that the accused was 20 years of age at the time of the incident and, as such, he is a youth. It is also submitted that the accused has remained in jail for more than six years. He has to look after his old mother and younger brother in the family. It is also submitted that the petitioner has no criminal back ground. Learned counsel has placed reliance on various decisions of the Apex Court and this court wherein such mitigating circumstances have been considered sufficient for not awarding the death sentence. (39). In Allauddin Mian vs. State of Bihar (supra) the court held that unless the nature of the crime and the circumstances of the offender reveal that a criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose lesser punishment and not the ex-treme punishment of death, which should be reserved for exceptional cases only. In the said case, two appellants before the Apex Court alongwith four other accused persons constituted an unlawful assembly with a common object to kill P.W. 6 Baharan Mian. In pursuance of the said object, the first appellant caused the death of Sahana Khatoon aged about 7 years and second appellant caused the death of Chand Tara aged about seven months. The Apex Court while setting aside the death sentence, observed that the motive for the crime was obscure and the killings were not for gain and the charge showed that the target was the father of the deceased and not the two infact daughters who were killed and the killing was not in the contemplation of any of the accused and the infants were the victims of the offen-ders ire resulting from frustration at the escape of their target i.e. father. Thus, in the opinion of the Apex Court, there was nothing so uncommon about the crime as to make the case an exceptional one and the mere fact that infants were killed, without motive, was not sufficient to bring the case within the category of `rarest of rare cases. (40). In Brij Mohan vs. State of Rajasthan (2), the appellant removed certain ornaments and other household articles and took the lives of four persons. (40). In Brij Mohan vs. State of Rajasthan (2), the appellant removed certain ornaments and other household articles and took the lives of four persons. Still the Apex Court took into consideration the mitigating circumstances that it was not just and appropriate to affirm the death sentence after a lapse of ten years. Another case relied upon by the appellant is Mukund alias Kundu Mishra vs. State of Madhya Pradesh (3). The Apex Court even after having found that the murders were ghastly, did not consider it to be a fit case falling under the category of `rarest of rare cases and, accordingly, set aside the death sentence by substituting the sentence of imprisonment for life. (41). In Suresh vs. State of U.P. (4), a young house wife was done to death by a trusted servant of the family. Her son aged 3 years was also murdered. The court considered that the accused had remained in jail for long ten years and reached to stage of release after taking into account the remissions admissible to him. In the facts of the case, the Apex Court set aside the death sentence and substituted the sentence of imprisonment for life. (42). In Raja Ram Yadav vs. State of Bihar (5) the court even having felt that the murders were committed in premeditated and calculated manner with extreme cruelty and brutality for which normally sentence of death would be wholly justified, the court in the special facts of the case did not consider it appropriate to award an extreme sentence of death to the appellants. The court, accordingly, com-muted the death sentence to the sentence of life. This case cannot be a precedent on the point as the court found that in the facts and circumstances of the case, the sentence of death would be wholly unjustified and in the special facts of the case, it was considered that the sentence of death was not appropriate. Those special facts have not been spelled-out in the judgment. Thus, the case has been decided on its own facts and does not provide any guidance. (43). Learned counsel has lastly placed reliance on a case in Om Prakash vs. State of Haryana (6). In the said case, a dispute over the small house in the village led to gruesome murders of seven persons. Thus, the case has been decided on its own facts and does not provide any guidance. (43). Learned counsel has lastly placed reliance on a case in Om Prakash vs. State of Haryana (6). In the said case, a dispute over the small house in the village led to gruesome murders of seven persons. The appellant was a member of the B.S.F. aged 22 to 24 years of age. In the judgment, various letters of the accused written to the authorities have been referred indicating the background in which the accused was under extreme mental disturbance, which led him to commit serious crime. The letters show that while the appellant was on duty, the family of the accused was being harassed and threat was mounted on them to hand over the possession of the plot in dispute. The persons of the victims family were influ-ential and rich and in those circumstances, the members of the appellants family were hesitant to come out of their house due to fear of the victims. He also quoted certain instances when the women folk of his family were harassed by the family of the victims. Inspite of his repeated requests to the Civil and Force Authorities, nothing was done. Considering these circumstances, the Apex Court observed that though the act of the accused was gruesome, yet it was a result of human mind going astray because of constant harassment of the members of the family of the appellant, which could be termed as a case of retribution. The court observed that though such act of retribution or revenge cannot be appreciated but such a case cannot be termed as falling in the category of `rarest of rare cases. The court also observed as follows: ``Further, this is not a crime committed because of lust for wealth or women, that is to say, murders are neither for money such as extortion, dacoity or robbery; nor even for lust and rape; it is not an act of anti social element, kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills number of persons. Thus, in the said case, the background in which the offence was committed, was considered to be a mitigating circumstance to keep out the case from the category of `rarest of rare cases. Thus, in the said case, the background in which the offence was committed, was considered to be a mitigating circumstance to keep out the case from the category of `rarest of rare cases. However, the court excluded the case where the crime is committed for lust of wealth or woman or the case where the accused has become menace for the Society. (44). In Amrutlal Someshwar Joshi vs. State of Maharashtra (7) a domestic servant committed murder of three members of his masters family with intention to commit robbery. The Court found that the crime was heinous committed in a cruel and diabolical manner. The Court, accordingly, upheld the confirmation of the death sentence falling in the category of ``rarest of rare cases. While upholding the death sentence, the court expressed its concern in increase of number of cases of robbery and murder by the domestic servants. (45). In Gentela Vijayavardhan Rao vs. State of A.P. (8) the accused sneaked into a passenger bus with most inflammable liquid petrol and match box and then set it ablaze resulting into roasting of twenty three passengers. The trial court awarded the death sentence, which was subsequently affirmed by the High Court. It was argued before the Apex Court that the accused persons were young and their prime motive was not murder but property and they did not prevent atleast some of the passengers from escaping and, therefore, the case does not fall within the term ``rarest of rare cases. The court held that the circumstances advanced are too slender for treating them as mitigating circumstances. The court also held that even if the said circumstances are considered to be mitigating circumstances, they have totally eclipsed by the other billowing aggravative features looming large in the bizarre scenario of the crime unfurled in the evidence. The court also observed that the number of victims by itself may not be a yardstick to discern a case of the category as described by the Constitution Bench in Bachan Singhs case (9). Nonetheless number of victims is not altogether outside the scope of consideration and should not be marginalised in appropriate cases. The Apex Court up held the conformation of the death sentence having observed. Nonetheless number of victims is not altogether outside the scope of consideration and should not be marginalised in appropriate cases. The Apex Court up held the conformation of the death sentence having observed. ``When human mind was allowed to be transformed itself in such demonic form and the planned programme was executed with extreme depranty, we have no hesitation to agree with the courts below that this is one of the rarest of the rare cases in which alternative option is unquestionably foreclosed. (46). In Jai Kumar vs. State of M.P. (10), the accused was found guilty of murder of brothers wife and her two daughters. One of the girl was taken to jungle and killed by the accused. Her body was covered with sand and stones. The accu-sed took the body of sister-in-law and hung the head being tied on a branch with the hair. The High Court described the accused as a ``living danger. The Apex Court did not consider the fact of age of the accused of 22 years and the fact that there was no past criminal record, a sufficient mitigating circumstance to bring out the case from the term ``rarest of rare case. The court observed that justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. The court further observed that the law courts exist for the society and ought to rise up to the occasion to do the needful in the matter and, as such, ought to act in a manner to subserve the basic requirement of the society. Banerjee J. speaking for the court observed that the punishments are awarded not because of the fact that it has to be an eye for eye or a tooth for tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufference of the community at large. On the facts of the case, the murder was found to be cold blooded and brutal without any provocation, as such, falling in the category of ``rarest of rare cases. (47). In a recent case State of U.P. vs. Dharmendra Singh (11), the Supreme Court took stock of its earlier decisions on the question of death sentence. In the said case, six persons were convicted for the murder of five persons. (47). In a recent case State of U.P. vs. Dharmendra Singh (11), the Supreme Court took stock of its earlier decisions on the question of death sentence. In the said case, six persons were convicted for the murder of five persons. Two of them were perpetrators of crime and, as such, they were awarded death sentence. The High Court, however, did not confirm the death sentence considering the fact that the accused persons had remained in jail for more than three years and reduced the sentence to imprisonment for life. The State of U.P. approached to the Apex Court by way of Criminal Appeal against the order of non-confirmation of death sentence. A question was posed ``Can a period of delay, to make the sentence of death inexecutable, be considered as a sole mitigating circumstance?. The court observed that while it is true that the prolonged trial or the execution of the dealth sentence beyond all reasonable period may be a ground for commuting the death sentence in a given case but it will be highly erroneous to lay down as a principle in law or draw an inference on fact that awarding of death sentence is improper in a case where the accused persons are in custody for three years or more, even though the facts of the case otherwise call for a death sentence. The court further observed that if the view taken by the High Court in the case is to be accepted as a correct principle then practically in no murder case death sentence can be awarded, since in this country normally a murder trial and confirmation of death sentence takes more than 3 years. The court usefully noticed the observations of the Apex Court in its earlier decision in Smt. Triveni Ben vs. State of Gujarat (12), where in the court held -``No fixed period of delay could be held to make the sentence of death inexecutable... The Apex Court taking into consideration the brutality of attack, number of persons murdered, age and infirmity of the victims, their vulnerability and the diabolic motive, acts of perversion, set aside the judgment of the High Court and confirmed the death sentence. (48). The Apex Court taking into consideration the brutality of attack, number of persons murdered, age and infirmity of the victims, their vulnerability and the diabolic motive, acts of perversion, set aside the judgment of the High Court and confirmed the death sentence. (48). Applying the principles laid down, the age of the accused and the fact that he has remained in jail for six years, cannot be considered as a mitigating circumstance to outweigh aggravated factor that there is increase in the graph of the domestic servants past or present committing murder and robbery of the weak and infirm members of the families. The accused gained the confidence of the old man Jora Ram aged 70 years and made entry in the house and took lives of five infirm and innocent persons. It was a pre-planned cold blooded murder. The accused committed ghastly murders with a view to commit robbery. The prime ob-ject was the financial gain. The attack was brutal. The accused left no chance for anybodys survival, lest they may figure as a witness. Thus, in the facts and circumstances of the case, we are of the view that the crime of the accused appellant is brutal, diabolical and revolting falling in the category of ``rarest of rare cases for which the extreme penalty of death sentence is justified. (49). In view of the aforesaid discussion, we find no merit in the appeal of the accused appellant Sri Bhagwan and the same is, accordingly, dismissed. The Murder Reference being No. 3/1998 is accepted and the death sentence awarded by the Addl. Sessions Judge, Ratangarh, District Churu vide his judgment dated 18.12.1998 is hereby confirmed. The death sentence shall be executed in terms of sub Sec. 5 of Sec. 354 of the Code of Criminal Procedure i.e. he be hanged by neck till he is dead. The record and the proceedings of the case be sent down to the trial court forthwith in accordance with the provisions of Section 371 Cr.P.C. A copy of this judgment be sent to the accused forthwith. The Superintendent, Central Jail, Jaipur, where the accused is confined, be directed to supply a copy of the judgment and arrange legal aid if the accused intends to prefer an appeal to the Supreme Court. The Superintendent, Central Jail, Jaipur, where the accused is confined, be directed to supply a copy of the judgment and arrange legal aid if the accused intends to prefer an appeal to the Supreme Court. The death sentence shall not, be executed for a period of sixty days from the date of receipt of copy of the judgment by the accused Sri Bhagwan.