JUDGMENT : R.K. Patra, J. - The Appellant (vide Jail Criminal Appeal No. 45 of 2001) has been convicted by the learned Sessions Judge, Phulbani for committing murder by intentionally causing the death of Santosh Pradhan and Sanita Nayak and sentenced to death. He has also been convicted under Sections 376/511, I.P.C. for attempting to commit rape on the deceased-Sanita and sentenced to rigorous imprisonment for two years. For attempting to commit murder of Aswini Nayak, he has been further convicted u/s 307, I.P.C. and sentenced to undergo rigorous imprisonment for ten years. The Appellant has submitted the aforesaid appeal through jail. 2. The prosecution story as narrated in the F.I.R. lodged by Pradeep (P.W. 1) runs as follows: On 7.2.1999 (Sunday) at about noon, his deceased son Santosh (aged about ten years), deceased-Sanita (aged about 20 years) along with Babula-P.W. 2 (aged about ten years) and the injured-Aswini, P.W. 8 (aged about twelve years) had gone to a gorge lying in between 'Dingumaha' hills for collection of broomsticks. The gorge is locally known as 'KUTI'. At about 2 p.m. Babula (P.W. 2) came running to the village and informed the villagers that while they were collecting broomsticks in the 'KUTI', an unknown tall person of fair complexion wearing a lungi and having an axe in his hand dragged the deceased-San ta. Hearing her hue and cry when the deceased-Santosh and injured-Aswini (P.W. 8) went to save her, that person attacked all three of them by means of the axe. Seeing this incident from a distance, he got scared and ran away to the village. Hearing this news, the informant (P.W. 1), grand mother of the deceased-Sanita, Gouranga Pradhan (not examined), Pitabash nayak (not examined), Appellant and others ran to the place of occurrence and found Santosh and Sanita were lying dead on the river bed with head injuries on them and injured-Aswini was lying unconscious with injuries on his person. The wearing blouse of deceased Santa was found opened from the front side. The injured Aswini was removed from the place of occurrence and was sent to Raikia hospital for treatment. On the basis of the said F.I.R., investigation was taken up by P.W. 10. The Appellant was arrested on 9.2.1992 and after completion of investigation charge-sheet was filed leading to his conviction and sentences as aforesaid. 3. The plea of the Appellant one of denial. On the basis of the said F.I.R., investigation was taken up by P.W. 10. The Appellant was arrested on 9.2.1992 and after completion of investigation charge-sheet was filed leading to his conviction and sentences as aforesaid. 3. The plea of the Appellant one of denial. According to him, he was falsely implicated on his refusal to contribute rice and cash of Rs. 500/- to the villagers for celebration of 'Ludumria festival' in the village. 4. Prosecution examined ten witnesses to bring home the charge. Out of then, P.W. 2 (Babula) and P.W. 8 (Aswini) are the eye witnesses to the occurrence. P.W. 1 is the father of deceased Santosh. He is the informant. P.W. 3 is a post-occurrence witness. P.W.4 is an inquest and seizure witness. P.W. 5 is a seizure witness of the axe (M.O.I.) P. Ws. 6 and 7 are two doctors who conducted joint post-mortem examination over the dead-bodies. P.W. 7 also examined the injured-Aswini. P.W.9 the police constable is a formal witness. P.W. 10 is the Investigating Officer. 5. It is not rightly disputed before us that deceased-Santosh and Santa had homicidal death. Ext. 7 is the post-mortem report of deceased-Santosh who was aged about ten years. P. Ws. 6 and 7, the doctors who conducted joint autopsy over his dead-body deposed that he had two abrasions on the chest, ecchymossis over the chin, lacerated semi-circular wound of 4" x 1" bone depth of left temporal region coupled with depressed fracture of that region, a 'T' shaped fracture on right side of the franto-parietal region, intra-cerebral haemorrhage in posterior part or cerebrum and collection of blood in the middle fossa of skull. According to the doctors, all those injuries were ante-mortem in nature and the cause of death was due to multiple head injuries, i.e., skull fracture and haemorrhage from brain. Ext. 8 is the post-mortem report of the deceased-San ta who was aged about 18 years. She had lacerated wounds of 312" x 31," x bone deep on the top of head longitudinally placed, incised wound of 1/2" x 1/2" x bone deep crossing the first injury and two incised semi-Iumar wounds on right temporal region coupled with a linear fracture on that part and fracture of middle cranial fossa and subdural hatematoma on right side of head. The injuries were.ante mortem in nature and cause of her death was due to the head injuries, i.e., multiple fracture of skull and subdural hematoma. The doctor (P.W. 7) examined the injured-Aswini (P.W. 8) on 7.2.1999 at Raikia P.H.C. By the time he was brought to the hospital, he was unconscious having convulsion, left pupil dilated, right pupil slightly constricted'. The doctor found one penetrating would with suspected fracture of skull 2" x 31/2," x bone deep on the left front top of the head. 6. The next crucial question is, whether the Appellant was the author who inflicted the injuries on the deceased-Santosh and Sanita and Aswini (P.W. 8). The prosecution pressed into service the evidence of Babula (P.W. 8) and Aswini (P.W. 8) as ocular witnesses. The learned Sessions Judge has accepted their evidence. And basing on it held the Appellant guilty of the offences. Let us now proceed to consider their evidence. Babula (P.W. 2) was aged about ten years at the time of occurrence. The learned Sessions Judge after preliminarily examining him and on being satisfied that he was giving rationale answers and was awares of the duty of speaking the truth and nature and meaning of oath, administered oath to him. He stated that the Appellant is known to him as he is his co-villager. He deposed that on the date of occurrence he along with deceased-Santosh, San ta and injured-Aswini (P.W. 8) went to the KUTI to collect broomsticks. On their way, they saw the Appellant, Pitabash (not examined) and some others were returning to the village. The Appellant asked San ta as to where they were going and she replied that they were going to KUTI to collect broomsticks. He stated that in the KUTI while they were collecting broomsticks, he found the Appellant was dragging the deceased-Santita and the deceased Santosh and injured-Aswini were physically trying to separate them. Then Appellant assaulted them by means of an axe. Seeing this incident, out of fear, he ran away to the village and informed about it to all the villagers. He stated that in the KUTI while they were collecting broomsticks, he found the Appellant was dragging the deceased-Santita and the deceased Santosh and injured-Aswini were physically trying to separate them. Then Appellant assaulted them by means of an axe. Seeing this incident, out of fear, he ran away to the village and informed about it to all the villagers. It may be noted here that on the version of Babula (P.W. 2), F.I.R. was lodged by P.W. I. It is in the evidence of P.W. 1 that Babula (P.W. 2) reported to him sand other villagers that an unknown tall man of white complexion was dragging San ta in the KUTI and when the deceased-Santosh and Aswini (P.W. 8) tried to intervene, he assaulted them. In fact, in the F.I.R.P.W. 1 narrated the assailant to be an unknown tall man of white complexion. In the cross-examination of P.W. 2 it was brought out that the Appellant was their immediate neighbour. Even to the Investigating officer (P.W. 10) he did not name the Appellant as the culprit. The Investigating Officer (P.W. 10) in the cross-examination admitted that Babula (P.W. 2)did not specifically state before him that it was this Appellant who dragged San ta and assaulted both the deceased and Aswini, but sated that a person dragged San ta and assaulted both the deceased and Aswini. The Investigating Officer further deposed that during his examination, Babula-(P.W. 2) stated that he had seen the culprit from a distance and was terribly afraid of and he could not think that the said person could be the Appellant. On close and careful reading of the evidence of P.W. 2 it would appear that his evidence suffers from serious infirmity. Admittedly, the Appellant was his neighbor. Therefore, there was no difficulty in identifying and naming him as the culprit at the earliest stage. On the contrary, he narrated the assailant to be an "unknown tall person of white complexion". If he had actually seen the Appellant, there is no valid reason as to why he should withhold his identity. It is in the evidence of Nirmala (P.W. 3) that after coming to know about the occurrence, she along with other villagers including Babula (P.W. 2) went to the KUTI. If he had actually seen the Appellant, there is no valid reason as to why he should withhold his identity. It is in the evidence of Nirmala (P.W. 3) that after coming to know about the occurrence, she along with other villagers including Babula (P.W. 2) went to the KUTI. She stated that on the way when Babula (P.W. 2) saw the Appellant, he told her that the culprit was exactly like his (appellant's) height, complexion, hair style, etc. Besides this, from the surroundings in and around the KUTI it appears that even from a short distance one may not be able to see another person. P.W. 1 in his evidence stated that the KUTI where the occurrence took place was about 2 to 3 kilometers from their village-Mandasaru. The KUTI is full of trees and bushes like forest and from the upper portion of the KUTI the inner portion would not be easily visible. The KUTI forest is so dense that even from a distance of 100 cubits, one would not be.able to see another person. This being the topography of the KUTI, Babula (P.W. 2) might not have identified the culprit and that is why he narrated him to be an unknown tall person with white. complexion. In these circumstances, no reliance can be placed on his evidence. The next witness is Aswini (P.W. 8) who had sustained injuries on his person. He was aged about 12 years at the time of occurrence. It is in the evidence of P.W. 1 that on reaching the KUTI they found that Santosh and San ta were lying dead with bleeding injuries on their persons and Aswini (P.W. 8) was lying unconscious with serious bleeding injuries on his person. P.W. 1 deposed that he was brought to the village and them taken to Raikia hospital for treatment. P.W. 7, the doctor, examined him at the hospital and referred him to M.K.C.G. Medical College Hospital, Berhampur for further investigation and treatment. The Investigating Officer (P.W. 10) stated that after getting information about the murder of two persons at the KUTI on 7.8.1999 he made spot visit on the same day at 6.15 p.m. and returned to the village at 7.30 p.m. He went to Raikia hospital at about 9 p.m. and issued injury requisition for Aswini who had already been admitted in the hospital. After discussing with the Medical Officer he made arrangements for his shifting to M.K.C.G. Medical College Hospital, Borhampur for further and better treatment. He also issued instructions to the Officer in-charge of Phulbani Sadar P.S. to proceed to Berhampur and make arrangement for his admission and for giving requisition for recording his dying declaration. He further deposed that later Aswini (P.W. 8) was shifted to Neuro Surgery Department of S.C.B. Medical College and Hospital, Cuttack for further and better treatment. Oh 29.4.1999 he sent a letter of requisition to the Professor and Head of the Department of House Surgery for furnishing opinion regarding the injury of Aswini (P.W. 8). The Professor submitted his opinion (Ext. 25/1) to the effect that the injury was grievous in nature. In his cross examination the Investigating Officer stated that on 1.5.1999 Aswini (P.W. 8) was discharged from S.C.B. Medical College and Hospital. He has further stated in his cross-examination that after his discharge from the hospital, he did not go to the villageMandasaru for recording his statement as he was unable to talk. He deposed that on 30.4.1999 when he visited the S.C.B. Medical College and Hospital and tried to examine him, he found that he was unable to talk and on consultation with the specialist of the Neuro Surgery Department, he learnt that he would not be able to talk though he had regained consciousness. Thus, from the evidence of the Investigating Officer it is evident that he had not recorded his statement at all. It was suggested to him in the crossexamination that he recorded his statement in Berhampur hospital and Cuttack hospital and because he did not implicate anyone, he suppressed those statements. The Investigating Officer denied this suggestion. The fact however remains that Aswini (P.W. 8) had sustained injury on his person. He is thus the most competent witness to depose about the occurrence. As already indicated, this witness was also aged about 12 years at the time, of occurrence and thus a child witness. The learned Sessions Judge before recording his statement noted that he was unable to speak and after putting some general questions he was satisfied that he understood the same and gave answers by signs and when signs were not intelligible, he gave the answers in writing by his left hand as his right hand was deformed. The learned Sessions Judge also administered oath to him. The learned Sessions Judge also administered oath to him. In his evidence Aswini stated (by writing) that on the date of occurrence he along with deceased-Santosh, Sanita and Babula (P.W. 2) went to the KUTI at about 1 p.m. to collect broomsticks. The Appellant first assaulted Sanita then Santosh and thereafter him by axe. This witness indicated by sign that the Appellant assaulted him on his head by the axe. He also indicated by sign that after being assaulted he lost sense and could not know what happened thereafter. Learned Counsel for the Appellant contended that Aswini had not seen the actual assault on the deceased-Santosh and San ta. This comment was made because the learned Sessions Judge has recorded his evidence as follows: I had not seen the actual assault on Sanita and Santosh (by sign). The aforesaid statement was obviously a confused one. The learned Sessions Judge ought to have further clarified since the witness was not in a position to talk. Be that as it may, we are not inclined to accept the submission of the counsel for the Appellant that this witness had not seen the actual assault on Santosh and San ta. He is emphatic that it was Appellant who assaulted him. But prior to his assault, Sanita and Santosh were first assaulted. There is no reason as to why this witness would falsely implicate the Appellant in the crime. In the cross-examination he admitted that he was not examined by the police. Suggestion was made to him that he was posing to have become dumb although he was able to speak as before. He denied this suggestion. This suggestion thrown at the witness has no bearing on his testimony. We have not been able to appreciate as to how the prosecution would be benefited in examining him as a dumb witness. By taking into consideration his entire evidence, we have no hesitation to hold that it was the Appellant who assaulted Santosh and Sanita to death and caused grievous hurt to Aswini (P.W. 8). 7. We have not been able to appreciate as to how the prosecution would be benefited in examining him as a dumb witness. By taking into consideration his entire evidence, we have no hesitation to hold that it was the Appellant who assaulted Santosh and Sanita to death and caused grievous hurt to Aswini (P.W. 8). 7. The learned Counsel submitted that the conduct of the Appellant would show that he was not the culpirt in view of the fact that he along with others brought the injured-Aswini (P.W. 8) from he KUTI to the village and thereafter took him to Raikia hospital in a vehicle as stated by P.W. I The conduct of the Appellant accompanying the injured-Aswini (P.W. 8) to the hospital may tend to show his innocence or his wickedness to cover up his guilt and to mislead the investigating agency. It is always not possible for a Court to fathom the mind of a person. Therefore, no inference of guilt or innocence can be drawn from the fact that he accompanied the injured to hospital. 8. The prosecution tried to establish that the axe (M.O.I) was produced by the Appellant, but the evidence on record shows otherwise. P.W. 5 deposed that on 10.2.1999 one Karunakar Nayak (not examined) of their village produced an axe before the police officer saying that the Appellant had given it to him. The police seized that axe as per the seizure list (Ext. 6). This evidence does not, help the prosecution in any way. Firstly, there is nothing on record to show that the said axe was the weapon of offence. Secondly, it was not the Appellant, but Karunakar Nayak who produced the axe. It is not known when did the Appellant hand over the axe to Karunakar Nayak. 9. The Appellant has been convicted under Sections 376/511 I.P.C. for attempting to commit rape on the deceased-San ta. There is absolutely no evidence in support of this finding of guilt. Relying on the evidence of Babula (P.W. 2) and the fact that the front portion of her blouse was found open by tearing its hook, the learned Sessions Judge held the Appellant guilty of this offence. We have already discarded the evidence of Babula (P.W. 2). The injured-Aswini (P.W. 8) in his evidence does not breathe a word if the Appellant did anything to outrage the modesty of deceased Santa. We have already discarded the evidence of Babula (P.W. 2). The injured-Aswini (P.W. 8) in his evidence does not breathe a word if the Appellant did anything to outrage the modesty of deceased Santa. Therefore, the Appellant cannot be held guilty for an offence under Sections 376/511, I.P.C. merely because the wearing blouse of deceased-Santita was found open. 10. The next question is with regard to the validity of the conviction of the Appellant u/s 307, I.P.C. for attempting to commit murder of Aswini (P.W. 8) by assaulting on his head by means of an axe. Aswini (P.W. 8) had sustained head injury due to assault by an axe. As per the injury report (Ext. 2611), the injury was bifrontal burst with fracture of left fron-to temporal region and bifrontal contusion. It was grievous in nature. Aswini (P.W. 8) stated in his evidence that after assaulting Santosh and Sanita, the Appellant assaulted him on his head by the axe. On being so assaulted, he lost his sense. Having regard to the nature of the injury which was on the vital part of the body; the weapon of offence used, the condition in which he was brought from the spot, the period during which he remained unconscious and the period of treatment, there can be no doubt that the Appellant had the requisite intention to cause his death and having such intention he dealt the blow on his head. For the aforesaid reason, the learned Sessions Judge has rightly convicted the Appellant u/s 307,I.P.C. 11. Our journey is now at the penultimate stage when we are required to consider the justification of the death sentence imposed on the Appellant. According to the learned Sessions Judge, the Appellant deserves capital punishment because it is the rarest of rare cases having regard to the situation, circumstance, background and the manner in which the dual murder was committed. Our journey is now at the penultimate stage when we are required to consider the justification of the death sentence imposed on the Appellant. According to the learned Sessions Judge, the Appellant deserves capital punishment because it is the rarest of rare cases having regard to the situation, circumstance, background and the manner in which the dual murder was committed. In paragraph 38 of the judgment he has observed as follows: From the facts and circumstances of the case it appears that the main object of the accused was to sexually assault San ta and he had also made attempt to commit that crime by dragging and forcibly opening the wearing blouse of Sanita, but when his attempt failed due to resistence by San ta and intervention by Santosh and Aswini he became extremely ferocious and blood thirsty like a man-eater or other wild animal and went on killing or attempting to kill one after the other who-soever prevented him from fulfilling the afore said evil desire. The injuries inflicted on both the deceased as" also on the injured on vital parts would go to show that at the relevant time the accused was behaving not like a human being but like a monster. The dual murder committed in this case is certainly brutal, gruesome and cold-blooded. 12. Under Sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973 the normal punishment for murder is imprisonment for life and death penalty is an exception. The Court is required to state special reasons in he case of death sentence. The question whether any standard or norm restricting the area of imposition of death penalty can be laid down came up for consideration before the Constitution Bench of the Supreme Court in Bachan Singh Vs. State of Punjab, Their Lordships observed that the Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in Section 354(3) can be laid down. State of Punjab, Their Lordships observed that the Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in Section 354(3) can be laid down. In paragraph 199 it was observed as follows: Is we read Sections 354 (3) and 235 (2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reason" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, there two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man'. In many cases, the externally cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpatibilty. and it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. Different circumstances suggested by the learned Counsel as "aggravated" and "mitigating" were taken note of in paragraphs 200 and 204 of the judgment and their lordships observed that broadly those indicators can be accepted, but they are not an exhaustive enumeration one way or the other. In paragraph 207, the Court further observed as follows: It is, therefore, imperative to voice the concern that courts aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. (Emphasis supplied) 13. We have given our anxious consideration to the question as to whether the imposition of the death sentence should be upheld. Having regard to the totality of the background, we are of the opinion that the murder was committed on the spur of the moment as a result of some compulsion which the Appellant could not withstand. It was not a case of pre-plan nor the Appellant had any personal motive to commit the murder. It is, therefore, not a rarest of rare cases. For the reasons aforementioned, we hereby commute the death sentence of life imprisonment. 14. In the result, the Jail Criminal Appeal is dismissed with modification of sentence and the reference made by the learned Sessions Judge is hereby discharged. Final Result : Dismissed