JUDGMENT 1. :- The learned Addl. Sessions Judge (Fast Track), Sri Ganganagar through his letter dated 23.6.2003 has submitted a reference under section 366(1) Criminal Procedure Code for confirmation of death sentence passed by him against the accused Lalchand . Laliya @ Laliya Doom (hereinafter referred to as accused Laliya Doom) and Shivlal @ Shivla @ Shiva (hereinafter referred to as the accused Shivlal) for the offence under section 302 Indian Penal Code through order of sentence dated 21.6.2003 in Sessions Case No. 28/2003. The said reference was registered as D. B.Criminal Murder Reference No.01/2003 and through order dated 7.7.2003 Shri N.K. Bohra, Advocate was appointed as Amicus Curiae for the accused respondents. 2. Against the judgment dated 18.6.2003 and order of sentence dated 21.6.2003 passed by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar, both the accused persons, namely, Laliya Doom and Shivlal submitted appeal from jail and the same was registered as D.B. Criminal Jail Appeal No. 698/2003 and Shri N.K. Bohra, Advocate appeared as Amicus Curiae for the accused appellants. 3. Thereafter, the accused Shivlal also filed a regular appeal being D.B. Criminal Appeal No.744/2003 through Shri R.K. Singhal, Advocate. 4. The third appeal being D.B. Criminal Appeal No.1000/2003 has been filed by the accused Lilu Ram @ Gallu, who was awarded imprisonment for life for the offence under section 302/149 Indian Penal Code, through Shri D.S. Shekhawat, Advocate. 5. The above mentioned three appeals and the murder reference are being decided by this common judgment as in all of them common questions of facts and law are involved and all of them arise out of the same judgment dated 18.6.2003 and order of sentence dated 21.6.2003 passed by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar in Sessions Case No. 28/2003. 6. For convenience, it may be stated here that the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar through impugned judgment and order of sentence has convicted and sentenced the accused appellants in the following manner: Name of accused appellants convicted under section sentence awarded to each appellant. 1. Laliya Doom 302 Indian Penal Code Death sentence 2. Shivlal 148 Indian Penal Code Three years RI and to pay fine of Rs. 500/- in default of payment of fine to further undergo SI for three months. 460 Indian Penal Code Ten years RI and to pay fine of Rs. 1. Laliya Doom 302 Indian Penal Code Death sentence 2. Shivlal 148 Indian Penal Code Three years RI and to pay fine of Rs. 500/- in default of payment of fine to further undergo SI for three months. 460 Indian Penal Code Ten years RI and to pay fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. 376(2)(g) Indian Penal Code Ten years RI and to pay fine of Rs.1000/- in default of payment of fine to further undergo SI for six months. 395 Indian Penal Code Ten years RI and to pay fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. 3. Liluram @ Gallu 302/149 Indian Penal Code Imprisonment for life and to pay a fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. 148 Indian Penal Code Three years RI and to pay fine of Rs. 500/- in default of payment of fine to further undergo SI for three months. 460 Indian Penal Code Ten years RI and to pay fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. 376(2)(g) Indian Penal Code Ten years RI and to pay fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. 395 Indian Penal Code Ten years RI and to pay fine of Rs. 1000/- in default of payment of fine to further undergo SI for six months. All the above substantive sentences were ordered to run concurrently. It may further be stated here that the learned Addl. Sessions Judge (Fast Track) has not awarded sentence to the accused appellants separately for the offence under section 120B Indian Penal Code as they had already been sentenced for the offence committed in pursuance of criminal conspiracy. It may further be stated here that in that Sessions Case, Lalchand @ Laliya S/o Budhram was one of the accused and he sought pardon and he was granted pardon by the learned Chief Judicial Magistrate, Sri Ganganagar through order dated 12.4.1999 and he was produced as approver PW1 (hereinafter referred to as approver PW1 Lalchand) and thus, he was ordered to be released by the impugned judgment and order. It may further be stated hete that in that sessions case, co-accused Vedia @ Ved Prakash (hereinafter referred to as accused Vedia) is absconding from the very beginning and standing warrant had already been issued against him. 7. The prosecution story may be summarised in the following manner:- On 10.1.1999 at about 6.30 PM in the Police Station Kotwali, Sri Ganganagar, one Premchand Midha gave a cryptic message on telephone to the effect that in the Bhanbhu Colony on the main road, there is shop and house of his bhanja Naveen Kumar (hereinafter referred to as deceased Naveen) and the dead body of deceased Naveen Kumar was seen in the house and he asked the police to immediately reach on the spot and that information was reduced into writing by PW13 Samun Ali Khan, SI in Rojnamcha Ex.P/64A and thereafter, he alongwith other police officials proceeded towards the spot and reached on the spot at about 6.50 PM where crowd was already there and Prem Chand Midha introduced himself before PW13 Samun Ali as Mama of the deceased Naveen and PW13 Samun Ali found that outside the house of deceased Naveen, there were two gates, one was Shutter, which was found closed and locked and the other gate was closed from inside. Thereafter, PW13 Samun Ali asked PW3 Safi Mohammed, F.C. to carefully reach on the roof and then enter in the house and open the door and thereafter, PW3 Safi Mohammed entered in the house of deceased Naveen through roof and switched on light and opened the door and thereafter, PW13 Samun Ali, Prem Chand Midha and Kishanlal Sidana (PW5) entered in the house and in the bedroom, dead body of woman was found on double bed and PW5 Kishanlal Sidana identified that dead body to be of his daughter-in-law Smt. Lakki (hereinafter referred to as deceased Lakki) and near the bed, dead body of one child was also found and PW5 Kishanlal Sidana identified that dead body to be of Sippu (hereinafter referred to as the deceased Sippu) son of deceased Naveen and near the bed on the floor, a dead body of man was also found and PW5 Kishanlal Sidana identified that dead body of his son deceased Naveen. Thereafter, PW13 Samun Ali informed the SP about the alleged incident and Dy. SP Tribhuvan Singh (PW14) also reached on the spot. Thereafter, PW13 Samun Ali informed the SP about the alleged incident and Dy. SP Tribhuvan Singh (PW14) also reached on the spot. The further case of the prosecution is that at that time at about 7.10 PM on 10.1.1999, PW5 Kishanlal Sidana gave a parcha bayan Ex.P/25 to PW13 Samun Ali stating inter-alia that his son deceased Naveen, aged about 30 years, his daughter-in-law deceased Lakki, aged about 25 years and his grand-son deceased Sippu aged about 5 years were living separately for last three years in the colony known as "Bhanbhu Colony", Sri Ganganagar and in front of his house, deceased Naveen opened a parchun shop. PW5 Kishanlal Sidana has further stated in his parcha bayan Ex.P/25 that in the morning at about 8.00 AM on 10.1.1999, two boys of that locality, the name of one of them was Shyam, came to his house and first asked about the health of his wife and then they informed that the shop and house of the deceased Naveen were found closed and therefore, they enquired from PW5 Kishanlal whether deceased Naveen had gone outside or not and upon this, PW5 Kishanlal told them that deceased Naveen did not inform him where he was going and he might have gone any where. It was further stated by PW5 Kishanlal in his parcha bayan Ex.P/25 that thereafter he went to the house of deceased Naveen and found the shop closed and thinking that deceased Naveen would have gone to his in-laws' house, he returned back. Thereafter, his son Ajay Kumar @ Sonu had also visited the house of deceased Naveen and he also informed the same thing that the house and shop of deceased Naveen were found closed. Thereafter, his son Ajay Kumar @ Sonu enquired on telephone from the house of in-laws' of deceased Naveen and it was informed that deceased Naveen had not come there. Thereafter, his son Ajay Kumar @ Sonu enquired on telephone from the house of in-laws' of deceased Naveen and it was informed that deceased Naveen had not come there. It was further stated by PW5 Kishanlal in his parcha bayan Ex.P/25 that thereafter his son Sonu and brother's son Praveen reached on the roof of the house of deceased Naveen and they saw the dead body lying on the bed in the room and thereafter, his brother-in-law Premchand Midha informed the police on telephone to reach on the spot and thereafter, police reached on the spot and the police official entered the house through roof and opened the door and in the house, dead body of deceased Naveen was found on the floor and the dead bodies of deceased Lakki and deceased Sippu were found on the double bed and hands of deceased Naveen and deceased Lakki were found tied and the mouth of deceased Lakki was found gaged by cloth and her neck was tied by wire and nada of her salwar was found near her leg. The froth was coming out from the mouth and nose of deceased Sippu and injuries were also found on his neck. The blood was also found on the floor near the head and mouth of deceased Naveen and his throat was tied by string. The almirah was found opened and all the goods were found in dispersing state.On this parcha bayan Ex.P/25, police registered the case and chalked out regular FIR Ex.P/65 and started investigation and the investigation was handed over to PW14 Tribhuvan Singh, Dy.SP.The further case of the prosecution is that PW14 Tribhuvan Singh inspected the site and site plan Ex.P/27 and description memo EX.P/27A showing the details of place of occurrence were got prepared by him.At the time of proceedings of Panchayat Nama and inspection of dead body of deceased Lakki, PW14 Tribhuvan Singh found that her both hands were tied with dark red colour jumphar and her mouth was gagged by sandow baniyan and her throat was tied by electric wire and through fard Ex.P/34 in presence of PW7 Prem Lal and Shyamlal, PW14 Tribhuvan Singh seized following articles found on her dead body: 1. Jumphar Article no.11 2. Sandow Baniyan Article no. 12 3. Electric wire Article no. Jumphar Article no.11 2. Sandow Baniyan Article no. 12 3. Electric wire Article no. 13 At the time of proceedings of Panchayat Nama and inspection of dead body of deceased Naveen, PW14 Tribhuvan Singh found that his both hands were tied with red colour salwar and his throat was tied with double string of jute and his mouth was gagged by mufflar and through fard Ex.P/35 in presence of PW7 Prem Lal and Shyamlal, PW14 Tribhuvan Singh seized following articles found on his dead body: 1. Salwar Article no.14 2. Two jute strings Article no.15 3. Mufflar Article no.16 The above articles were found stained with blood.Through fard Ex.P/36, one nada (article 17) was also seized by PW14 Tribhuvan Singh in presence of PW7 Prem Lai and Shyamlal and it also appeared to PW14 Tribhuvan Singh that the said nadarwas got cut by a sharp edged weapon.PW14 Tribhuvan Singh also seized a piece of cotton stained with blood through fard Ex.P/37 in presence of PW7 Prem Lai and Shyamlal.The further case of the prosecution is that during investigation, photos d the place of occurrence and dead bodies of deceased were got taken through PW2 Indralal and the same are Ex.P/4 to Ex.P/24 and Ex.D/1.The further case of the prosecution is that on 11.1.1999, the post-mortem of the dead bodies of deceased Naveen, deceased Lakki and deceased Sippu was got conducted and the post mortem reports of deceased Lakki, deceased Naveen and deceased Sippu are Ex.P/55, Ex.P/56 and Ex.P/57 respectively.The further case of the prosecution is that on 11.1.1999 after post-mortem of the dead bodies of the deceased Naveen, deceased Lakki and deceased Sippu was completed, PW14 Tribhuvan Singh seized the following articles belonging to deceased Lakki through fard Ex.P/38 in presence of PW7 Prem Lal and Shyamlal: 1. Jumphar Article 18 2. Salwar (without nada) Article 19 3. Coat Article 20 Through fard Ex.P/39, the following articles belonging to the deceased Naveen were seized by PW14 Tribhuvan Singh in presence of PW7 Prem Lal and Shyamlal: 1. One Shirt Article 21 2. One Pant Article 22 3. One Sandow Baniyan Article 23 4. Under-wear Article 24 Through fard Ex.P/40, the following articles belonging to the deceased Sippu were seized by PW14 Tribhuvan Singh in presence of PW7 Prem Lal and Shyamlal : 1. T-shirt Article 25 2. Pant Article 26 3. One Sandow Baniyan Article 27 4. One Shirt Article 21 2. One Pant Article 22 3. One Sandow Baniyan Article 23 4. Under-wear Article 24 Through fard Ex.P/40, the following articles belonging to the deceased Sippu were seized by PW14 Tribhuvan Singh in presence of PW7 Prem Lal and Shyamlal : 1. T-shirt Article 25 2. Pant Article 26 3. One Sandow Baniyan Article 27 4. Jersey (sweater) Article 28 During the course of investigation, PW5 Kishanlal submitted a list of articles, which were stolen and the same is marked as Ex.P/26.The further case of the prosecution is that during investigation on 13.1.1999, PW14 Tribhuvan Singh recorded the statement of PW16 Mahesh Chandra in which he has stated that on the night of 9.1.1999 at about 10.00 PM when he was going through Bhanbhu Colony towards Gurudwara, he saw Shivlal (accused appellant), accused Vedia (absconder), Laliya Doom (accused appellant), approver PW1 Lalchand and Liluram @ Gallu (accused appellant) and they all were talking about the beauty of the deceased Lakki and were uttering vulgar words for her.The further case of the prosecution is that during investigation PW15 Chetan Das also offered himself as witness of the alleged incident and gave statement Ex.D/3 on 14.1.1999 before PW14 Tribhuvan Singh and in that statement, he has stated that near to his house, in the house of Jangir Singh, Smt. Kiran and Shanti used to live as tenant and on 9.1.1999 in the night at about 3.00 when he came out from the house for passing urine, he found the gate of the house of Kiran opened and also found the light on and also found the accused appellant Shivlal, accused Vedia (absconder) and the accused appellant Laliya Doom sitting in the room and they were saying that two had been finished and the third lady would have died by now.Thereafter, on the above statements, it was found that all the five accused persons, namely, Laliya Doom (accused appellant), Shivlal (accused appellant), accused Vedia (absconder), approver PW1 Lalchand and Lilu Ram @ Gallu (accused appellant) were involved in the crime and these accused persons were round absconding from their houses and they all were vagabond. Accused appellant Liluram @ Gallu The further case of the prosecution is that on 17.1.1999 at about 7.00 PM, the accused appellant Liluram @ Gallu was arrested through arrest memo Ex.P/56 and on 26.1.1999, he gave information Ex.P/66 to PW14 Tribhuvan Singh to the effect that out of the articles, which were stolen on the fateful day from the house of deceased Naveen he received one silver paijeb, one chain, one mangal-sutra and one tikka, which he could get recovered and in pursuance of that information Ex.P/66, the accused appellant Liluram @ Gallu got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/51 in presence of Ramesh Kumar and Govind Ram Bhatiya (PW11): 1. One silver paijeb article-1 2. One silver chain article-2 3. One Mangal-sutra article-3 4. One Tikka article-4 Accused appellant Laliya DoomThe further case of the prosecution is that on 17.1.1999 at about 8.10 PM, the accused appellant Laliya Doom was arrested through arrest memo Ex.P/68 and on 26.1.1999, he gave information Ex.P/67 to PW14 Tribhuvan Singh to the effect that he could get recovered one ring and knife which was used in the crime, which he had kept in the house of his brother-in-law Kailash and in pursuance of that information Ex.P/67, the accused appellant Laliya Doom got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/53 in presence of Ramesh Kumar and Govind Ram Bhatiya (PW11): 1. One ring of gold article-5 2. One knife article-38 Approver PW1 LalchandThe further case of the prosecution is that on 18.1.1999 at about 4.00 PM, the approver PW1 Lalchand was arrested through arrest memo Ex.P/1 and on 27.1.1999, he gave information Ex.P/2 to PW14 Tribhuvan Singh to the effect that out of the articles, which were stolen on the fateful day from the house of deceased Naveen, he received one silver paijeb, one necklace, one kanta and one chain, which he could get recovered and in pursuance of that information Ex.P/2, the approver PW1 Lalchand got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/3 in presence of Ajayab Singh and Ashok Kumar (PW8): 1. One silver paijeb article-7 2. One chain article-8 3. One necklace article-9 4. One silver paijeb article-7 2. One chain article-8 3. One necklace article-9 4. One Kanta article-10 Accused appellant ShivlalThe further case of the prosecution is that on 21.1.1999 at about 3.40 PM, the accused appellant Shivlal was arrested through arrest memo Ex.P/69 and on 27.1.1999, he gave information Ex.P/70 to PW14 Tribhuvan Singh to the effect that he could get recovered one ring of gold and some torn currency notes which had been kept by him in the pent stained with blood and he could also get recovered one dagger and black loi, which were used in the crime and in pursuance of that information Ex.P/70, the accused appellant Shivlal got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex. P/42 in presence of Ajayab Singh and Ashok Kumar, PW8: 1. One dagger article-29 2. One Pant article-30 3. One black loi article-31 4. One gold ring article-6 5. Torn currency notes article-33 The further case of the prosecution is that all the seized articles were sealed and kept in malkhana and all the articles were got identified before the Magistrate by PW5 Kishanlal, who identified that all the articles belonged to the deceased Naveen and the identification fard is Ex.P/31 and the same was admitted by the learned counsel appearing for the accused persons during trial.During the course of investigation, blood of accused appellant Liluram, accused appellant Laliya Doom, approver PW1 Lalchand and the accused appellant Shivial was taken for the purpose of ascertaining blood group and the blood group examination report is Ex.P/45, which reveals the blood group of accused persons in the following manner: Name of accused persons Blood group 1. Lilu Ram (accused appellant) B+Rh positive 2. Laliya Doom (accused appellant) A+Rh positive 3. Lalchand (approver PW1) A+(Rh positive) 4. Shivlal (accused appellant) A+Rh positive The further case of the prosecution is that during investigation, the approver PW1 Lalchand and the accused appellants Laliya Doom, Lilu Ram and Shivlal were got medically examined and their reports are respectively Ex.P/58, Ex.P/59, Ex.P/60 and Ex.P/61 and these reports show that they were capable to perform sexual intercourse and all these reports were admitted by the learned counsel appearing for the accused persons during trial.The further case of the prosecution is that the articles recovered were sent to FSL for examination and the FSL reports are Ex.P/73, Ex.P/74 and Ex.P/75. The further case of the prosecution is that during investigation, approver PW1 Lalchand made an application for pardon before the learned Chief Judicial Magistrate, Sri Ganganagar and on that application, the learned Chief Judicial Magistrate, Sri Ganganagar through order dated 12.4.1999 granted pardon and he was made approver on the condition that he would disclose all the true facts pertaining to the alleged incident.Thereafter, the statement of the approver PW1 Lalchand was recorded by the learned Chief Judicial Magistrate on 15.4.1999 and the same is Ex.D/2 and in that statement Ex.D/2, he has narrated the whole story of the alleged incident and the gist of his statement Ex.D/2 is summarised in the following manner: (i) That accused appellants Shivlal, Laliya Doom and Liluram @ Gallu and accused Vedia (absconder) were his friends and therefore, he himself and all these accused persons used to sit in the chowk and they used to say that the money earned through labour was not sufficient to make the livelihood and therefore they decided that theft, etc. be committed. (ii) That he knew deceased Naveen Seth as his shop was in the Bhanbhu Colony and in the shop of deceased Naveen apart from him, his wife deceased Lakki also used to sit. (iii) That he and all the accused persons used to visit the shop of the deceased Naveen for purchasing bidi, cigarette etc. (iv) That the wife of the deceased Naveen, namely, deceased Lakki used to talk freely with the customers and she was a young and beautiful lady and whenever they used to visit the shop of deceased Naveen, deceased Lakki used to talk with them also freely. (v) That on fateful day i.e. on 9.1.1999 he reached the chowk near Gurudwara where accused appellant Liluram @ Gallu had already reached there. Thereafter accused appellants Shivlal and Laliya Doom and accused Vedia (absconder), who were in a state of intoxication also came there. Thereafter, the accused appellant Shivlal stated that since his wife had delivered a child, therefore, he could not have intercourse with her, but he had an acute desire for that and at the same time, accused Vedia (absconder) and accused appellant Laliya Doom also told that since deceased Lakki used to talk with them freely and since she was a young lady, therefore, after entering into her house, they might satisfy their desire. Thereafter, he and accused appellant Liluram @ Gallu stated that seeing all of us, deceased Lakki would be frightened and her husband deceased Naveen would also not speak. (vi) That the accused appellant Shivial and accused Vedia (absconder) were armed with dagger and the accused appellant Laliya Doom was armed with knife. (vii) That it, was decided by all the accused persons that one by one they would commit rape with the deceased Lakki and thereafter, jewellery and money would also be taken from her house. (viii) That he and the accused appellant Liluram @ Gallu told that they had apprehension that in case deceased Naveen and his wife deceased Lakki would not agree and they started crying, the possibility of being arrested could not be ruled out and upon this, the accused appellant Shivlal and Laliya Doom and accused Vedia (absconder) told that since they had weapons in their hands and if deceased Lakki and deceased Naveen did not agree, they would be killed and upon this, he and accused appellant Liluram @ Gallu also agreed to the proposal. (ix) That thereafter, he and all accused persons reached the house of deceased Naveen and since the wall of the nohra adjacent to the house of deceased Naveen was at low height, first accused appellant Shivlal, then accused appellant Laliya Doom, then accused Vedia (absconder), then accused appellant Liluram @ Gallu and at last he himself climbed over the wall and then reached on the roof of the house of deceased Naveen and from the roof, they saw the bed room of the deceased Naveen as the light was on in the room and door of the room was also open. (x) That deceased Naveen, deceased Lakki and deceased child Sippu were sleeping on the bed and they sat for about 10-15 minutes on the roof. (x) That deceased Naveen, deceased Lakki and deceased child Sippu were sleeping on the bed and they sat for about 10-15 minutes on the roof. (xi) That thereafter, the accused appellant Shivlal asked him and accused appellant Liluram @ Gallu to remain on the roof for the purpose of watching and then, accused appellant Shivlal, accused Vedia (absconder) and accused appellant Laliya Doom came down from the roof and reached in the house of deceased Naveen and as there was some noise, therefore, deceased Naveen and his wife deceased Lakki awoke and thereupon, accused appellant Shivlal put dagger on the neck of the deceased Naveen, as a result of which, he became frightened and the accused Vedia (absconder) put dagger on the neck of deceased Lakki. L (xii) That thereafter, deceased Lakki told accused appellant Shivlal that money would be given to them in the morning and thereafter, accused appellant Laliya Doom first cut the string of the cot and thereafter, he tied the hands of deceased Naveen with that string and the accused appellant Shivlal tied his mouth. (xiii) That because of that, deceased Lakki also became frightened and she stated that money would be given to them in the morning and whatever they wanted to do they could do so, but leave them alone and thereafter, the accused Vedia (absconder) cut the nada of the salwar of deceased Lakki by knife and after that, nada was pulled from the salwar by the accused Laliya Doom and then, the accused Vedia (absconder) committed rape with the deceased Lakki. (xiv) That when the accused Vedia (absconder) was committing rape with the deceased Lakki, his leg struck against the child deceased Sippu, as a result of which, deceased Sippu also awoke and started weeping and thereupon, accused Vedia (absconder) gave dagger blow on his neck, as a result of which, his neck was cut and 2-3 blows were further given by accused Vedia (absconder) on the person of that child deceased Sippu and accused Vedia (absconder) put a quilt over the body of deceased Sippu. (xv) That when the accused Vedia (absconder) completed rape with the deceased Lakki, then accused appellant Laliya Doom committed rape with the deceased Lakki and thereafter, the accused appellant Shivlal committed rape with her. (xv) That when the accused Vedia (absconder) completed rape with the deceased Lakki, then accused appellant Laliya Doom committed rape with the deceased Lakki and thereafter, the accused appellant Shivlal committed rape with her. (xvi) That after commission of rape with the deceased Lakki by the accused appellants Shivlal, Laliya Doom and accused Vedia (absconder), the hands and mouth of deceased Lakki were tied. (xvii) That after that, the accused appellant Shivlal called him and accused appellant Liluram @ Gallu from the roof and thereupon, he and accused appellant Liluram @ Gallu entered in the room and thereafter, when accused Vedia (absconder) lifted the quilt from the body of the deceased Sippu he was found dead and at that time, deceased Lakki was in semi unconscious condition and deceased Naveen was also tied with string. (xviii) That accused appellant Shivlal told that fan be put off from the hook and then, deceased Naveen be hanged on the hook and deceased Lakki be also killed so that the police might think that the deceased Naveen had killed his wife deceased Lakki and child deceased Sippu and after that, he himself had committed suicide. (xix) That thereafter, fan was taken off from the hook and three accused persons tried to hang the deceased Naveen, but since they were in drunken condition, it was not possible to hang the deceased Naveen and he fell down on the earth. (xx) That the accused Vedia (absconder) and the accused appellant Laliya Doom opened the almirah and took some jewellery and money from it. (xxi) That since they could not hang the deceased Naveen on the hook, they became frightened and upon this, accused appellant Shivlal told that since child deceased Sippu had died and deceased Naveen and deceased Lakki knew them, therefore, they should also be killed and thereupon, the accused appellant Laliya Doom gave knife blows on the body of the deceased Lakki, but she did not die and started fluttering and upon this, accused appellant Laliya Doom brought electric wire of the press and after putting it in the throat, he pulled it, as a result of which, deceased Lakki died. (xxii) That thereafter, accused appellant Shivlal gave 5-6 knife blows on the body of the deceased Naveen, as a result of which, he also died. (xxii) That thereafter, accused appellant Shivlal gave 5-6 knife blows on the body of the deceased Naveen, as a result of which, he also died. (xxiii) That the salwar, which was put off from the person of the deceased Lakki, was put again on her leg. (xxiv) That thereafter, accused Vedia (absconder) went in the shop of deceased Naveen and he took some money from the shop. (xxv) That he and accused appellant Liluram @ Gallu became frightened and thereafter, they went to their houses. (xxvi) That on the next day, he and all the accused persons, namely, accused appellants Shivlal, Laliya Doom, Liluram @ Gallu and accused Vedia (absconder) met in the chowk and thereafter, they all went in the field, where the accused appellant Shivlal gave him Rs. 230/- in cash, one silver paijeb, one silver chain, one necklace of gold and one kanta sona and the accused Vedia (absconder) told that he had put the lock in his house. (xxvii) That the jewellery, which he got, were concealed by him in the house and the same were recovered by the police. Thereafter, after usual investigation, the police filed challan in the Court of Chief Judicial Magistrate, Sri Ganganagar against the accused appellants Liluram, Gallu, Laliya Doom and Shivial for the offence under sections 302, 395, 376, 460, 147, 148 and 120B Indian Penal Code and against accused Vedia (absconder) under section 299 Criminal Procedure Code for the offence under sections 302, 395, 376, 460, 147, 148 and 120B Indian Penal Code and PW1 Lalchand was mentioned as approver and thereafter, the case was committed to the Court of Session and thereafter, it was transferred to the Court of Addl. Sessions Judge (Fast Track), Sri Ganganagar. On 4.11.1999, the learned Special Addl. Sessions Judge (Women Atrocities), Sri Ganganagar framed the charges against the accused appellants for the offence under sections 120B, 148, 460, 376(2)G, 302 and alternatively 302/149 and 395 Indian Penal Code. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial. During the course of trial, as many as 16 witnesses were examined by the prosecution and many documents were got exhibited. Thereafter, statements of the accused appellants under section 313 Criminal Procedure Code were recorded. After conclusion of trial, the learned Addl. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial. During the course of trial, as many as 16 witnesses were examined by the prosecution and many documents were got exhibited. Thereafter, statements of the accused appellants under section 313 Criminal Procedure Code were recorded. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar through his impugned judgment dated 18.6.2003 and order of sentence dated 21.6.2003 convicted and sentenced the accused appellants in the manner as indicated inter alias (i) That the case of the prosecution rests on the statement of approver PW1 Lalchand as well as on circumstantial evidence and the statement of approver Lalchand was believed by the trial Judge. (ii) That the statement of the approver PW 1 Lalchand was corroborated from the statements of PW15 Chetan Das and PW16 Mahesh Chandra and the statements of PW15 Chetan Das and PW16 Mahesh Chand were also believed by the learned trial Judge. (iii) That it was also found believable that the approver PW 1 Lalchand could see the bed room of the deceased Naveen from the roof. (iv) That the recovery of dagger (article 29) at the instance of accused appellant Shivlal and knife (article 38) at the instance of accused appellant Laliya Doom further corroborated the statement of the approver PW1 Lalchand and furthermore, as per FSL report Ex. P/75, on both dagger as well as knife, human blood of B positive group was found and the blood group of all the deceased was also B positive. (v) That the recovery of other stolen articles at the instance of the accused appellants also corroborated the statement of the approver PW1 Lalchand. (vi) That an the pent (article 30) of accused appellant Shivlal, human blood of B positive group was also found and this also corroborates the statement of the approver PW1 Lalchand. (vii) That no doubt semen was not found on the vaginal swab of deceased Lakki, as is evident from the FSL report Ex.P/73, but semen was found on the clothes, which were worn by the deceased Lakki at the relevant time i.e. Salwar (article 19) and jumphar (article 18) and furthermore, to prove the charge of rape, it is not necessary that semen would always be found in the vagina. (viii) That the accused appellants Laliya Doom, Shivlal and Liluram @ Gallu and accused Vedia (absconder) and approver PW1 Lalchand formed unlawful assembly and common object of which was to commit rape with deceased Lakki and further, to commit theft in the house of deceased Naveen and in pursuance of that common object, all the accused persons entered in the house of deceased Naveen and the accused appellant Laliya Doom caused murder of deceased Lakki and the accused appellant Shivlal caused murder of deceased Naveen and the accused Vedia (absconder) caused the murder of deceased Sippu and the approver PW1 Lalchand and accused appellant Liluram @ Gallu gave support in causing above murders. (ix) That accused appellants Laliya Doom and Shivial and accused Vedia (absconder) committed rape with the deceased Lakki and since the approver PW1 Lalchand and accused appellant Liluram @ Gallu were also there, therefore, the accused appellant Liluram @ Gallu would also be liable to be convicted in gang rape though actually rape was not committed by him. (x) That though four contradictions were found in the statement of the approver PW1 Lalchand with his earlier statement Ex.D/2, but since they were minor contradictions, therefore, full reliance was placed on the statement of the approver PW1 Lalchand by the learned trial Judge. (x) That though four contradictions were found in the statement of the approver PW1 Lalchand with his earlier statement Ex.D/2, but since they were minor contradictions, therefore, full reliance was placed on the statement of the approver PW1 Lalchand by the learned trial Judge. (xi) That all the accused persons entered in the house of deceased Naveen with an intention to commit rape with deceased Lakki and further to commit dacoity after hiding themselves and thereafter, the accused appellant Shivlal terrified deceased Naveen by putting dagger on his neck and the accused Vedia (absconder) put dagger on the neck of deceased Lakki and thus, they terrified them and thereafter, the accused Vedia (absconder) cut the nada of salwar of deceased Lakki and then committed rape with her and that incident was committed by the accused persons though the deceased had said to them that whatever they wanted to do they could do so, but they be not killed and they would give money to them tomorrow, but in spite of that, even five years old child, namely, deceased Sippu, son of deceased Naveen was also murdered and after committing the rape, accused appellant Laliya Doom caused injuries to deceased Lakki and when she was fluttering, accused appellant Laliya Doom pressed her neck by putting a electric wire on her neck and thereafter, accused appellant Shivlal murdered deceased Naveen with dagger and therefore, the acts of the accused appellants Laliya Doom and Shivial fall within the rarest of rarest cases and therefore, they were awarded death sentence by the learned trial Judge. (xii) That since the accused appellant Liluram @ Gallu cooperated the other accused persons in hanging the deceased Naveen on the roof and since he did not commit rape with deceased Lakki in actual sense and he did not cause any injury to deceased Naveen, deceased Lakki and deceased Sippu, therefore, his case was treated separately from two other accused appellants, namely, Laliya Doom and Shilvial and he was convicted under section 302 Indian Penal Code with the aid of Section 149 Indian Penal Code and awarded imprisonment for life in place of death sentence. Aggrieved from the said judgment dated 18.6.2003 and order of sentence dated 21.6.2003 passed by the learned Additional Sessions Judge (Fast Track), Sri Ganganagar, the above mentioned three appeals have been filed by the accused appellants. 8. Aggrieved from the said judgment dated 18.6.2003 and order of sentence dated 21.6.2003 passed by the learned Additional Sessions Judge (Fast Track), Sri Ganganagar, the above mentioned three appeals have been filed by the accused appellants. 8. In the above mentioned three appeals, the following submissions have been made by the learned counsel for the accused appellants:On behalf of accused appellant Shivlal (i) That from the site plan Ex.P/27 and description memo Ex.P/27A, it cannot be inferred that the approver PW1 Lalchand while sitting on roof alongwith accused appellant Liluram @ Gallu could have seen the occurrence, which took place in the bed room of deceased Naveen as there was verandah before the room and, therefore, he cannot be regarded as eye witness of the alleged incident and his statement that he was seeing all the things, which were happening in the bed room, from the roof is false one and thus, no reliance should have been placed on his statement. (ii) That the statement of the approver PW1 Lalchand should not have been believed because he has not implicated himself in the manner as the approver must implicate and he has separated himself from committing the murder in actual sense of three persons and he has also separated himself from committing rape with the deceased Lakki. Apart from this, the evidence of an accomplice cannot be acted upon unless it is corroborated and found correct in material particulars. In this case, the evidence of the approver PW1 Lalchand, which itself is a weak evidence, does not get any corroboration from other evidence available on record and thus, no reliance should have been placed on his statement by the learned trial Judge. (iii) That the statement of the approver PW1 Lalchand itself gets contradicted with his previous statement Ex.D/2 in material particulars and therefore, from this point of view also, no reliance should have been placed on his testimony by the learned trial Judge. (iv) That PW15 Chetan Das and PW16 Mahesh Chand are chance witnesses and therefore, their statements have been wrongly believed by the learned trial Judge and their statements should have been discarded. (iv) That PW15 Chetan Das and PW16 Mahesh Chand are chance witnesses and therefore, their statements have been wrongly believed by the learned trial Judge and their statements should have been discarded. (v) That on point of sentence, it was submitted that the present case cannot be termed as rarest of rare case where death sentence could be awarded and thus, awarding of death sentence to the accused appellant Shivlal is contrary to well established principles of law laid down by the Hon'ble Supreme Court from time to time. On behalf of accused appellant Laliya Doom (i) That the theory of rape by the accused appellant Laliya Doom and his associates with the deceased Lakki cannot be said to have been established beyond reasonable doubt as semen was not found on the vaginal smear of the deceased Lakki. (ii) That had the accused appellant Laliya Dooms and his associates would have intention for looting the goods of deceased Naveen, they could have done so, but in the present case, money, goods, jewellery and currency notes were found intact, therefore, in these circumstances, it cannot be inferred that the accused appellant and his associates had any intention either to commit rape with the deceased Lakki or to commit decoity in the house of deceased Naveen. Apart from this, the things, which were got recovered at the instance of accused appellant and his associate, are of trivial nature and much less value articles and for that, the incident in the manner it had taken place would have not been committed by the accused appellant and his associate. (iii) That in the statement of the approver PW1 Lalchand, it was stated that the accused appellant Laliya Doom committed murder by dagger, while in the fard of recovery made at the instance of accused appellant Laliya Doom, knife (article 38) was mentioned and therefore, the so-called recovery of knife (article 38) is of little significance. (iv) That since after the alleged incident, there was hue and cry against the administration, therefore, to satisfy the anger of people at large, a false case has been got prepared against the accused appellant and his associates. (iv) That since after the alleged incident, there was hue and cry against the administration, therefore, to satisfy the anger of people at large, a false case has been got prepared against the accused appellant and his associates. (v) That the statement of the approver PW1 Lalchand suffers from basic infirmities and since there is no corroboration to his statement, therefore, placing of reliance on his statement by the learned trial Judge was against the well settled principle of law. (vi) That since PW5 Kishanlal has admitted in his cross-examination that all the articles were identified by him before the Magistrate and prior to that, all the articles were shown to him and therefore, the identification of articles was nothing but a mere formality and thus, no reliance should have been placed on it. (vii) That on point of sentence, it was submitted that the present case cannot be termed as rarest of rare case where death sentence could be awarded find thus, awarding of death sentence to the accused appellant Laliya Doom is contrary to well established principles of law laid down by the Hon'ble Supreme Court from time to time. On behalf of accused appellant Lilu Ram @ Gallu The learned counsel for the accused appellant Lilu Ram @ Gallu has adopted all the arguments which were made on behalf of the accused appellants Shivial and Laliya Doom. Apart from this, he has further submitted that since the accused appellant. Liluram @ Gallu did not commit rape with deceased Lakki in actual sense, therefore, he could not be convicted under section 376(2)(g) Indian Penal Code. 9. On the other hand, the learned Public Prosecutor and the learned counsel appearing for the complainant have supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar. 10. We have heard the learned counsel for the accused appellants. learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. 11. Before proceeding further, we would like to discuss first the medical evidence which is found in the statement of PW12 Dr. B.M. Sharma. Post Mortem Report of the deceased Lakki 12. PW12 Dr. learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. 11. Before proceeding further, we would like to discuss first the medical evidence which is found in the statement of PW12 Dr. B.M. Sharma. Post Mortem Report of the deceased Lakki 12. PW12 Dr. B.M. Sharma in his statement recorded in Court has stated that on 11.1.1999 he was Medical Jurist in the Government Hospital, Sri Ganganagar and on that day, post mortem of the dead body of the deceased Lakki was conducted by the Medical Board and he was one of the members of that Medical Board and the following injuries were found on her body: (i) Incised wound 3/4" x ⅕" trachea deep on centre of neck. (ii) Incised wound 1/2" x ⅙" muscle deep 1/2" below injury no. 1. (iii) Incised wound 1/2" x ⅕" muscle deep on left side neck below chin near mild line. (iv) Contusion 1/2" x 1/4" below chin left side. (v) Contusion 3/4" x 1/4" on neck. (vi) Incised wound 3/4" x ⅓" heart deep on sternum 1" below nipple line underlying bone cut. (vii) Incised wound 1" x 1/2" heart deep on sternum 1" below injury no.6. (viii) Incised wound 1/4" x ⅓"x cavity deep on epigastric region. (ix) Incised wound 1/4" x ⅓" cavity deep 1 1/2" lateral & below injury no.8 left side chest. (x) Incised wound 1/4" x 1/2" cavity deep 1" below injury no.9. (xi) Incised wound 1/2" x 1/4" muscle deep on left lower most part of chest. (xii) Contusion 2, 3/4" x ⅓" on left neck. The cause of death of deceased Lakki has been opined in the following manner: "From the above mentioned observation and finding in the opinion of Medical Board cause of death is shock and haemorrhage due to injury to heart and liver." He has further stated that there was pregnancy of about 12 to 14 weeks. He has proved the post-mortem report Ex.P/55. 13. Thus, from the statement of PW12 Dr. B.M. Sharma, it is clear that the deceased Lakki received 12 injuries on her body of which 9 were incised wounds on vital parts of body and the cause of her death was shock and haemorrhage due to injury to heart and liver and furthermore, she was pregnant. 14. 13. Thus, from the statement of PW12 Dr. B.M. Sharma, it is clear that the deceased Lakki received 12 injuries on her body of which 9 were incised wounds on vital parts of body and the cause of her death was shock and haemorrhage due to injury to heart and liver and furthermore, she was pregnant. 14. Hence, the death of the deceased Lakki was not natural one, but it was homicidal and the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed one. Post Mortem Report of deceased Naveen 15. PW12 Dr. B.M. Sharma has further stated in his statement recorded in Court that on 11.1.1999 at about 9.20 AM, the post mortem of the dead body of the deceased Naveen was also conducted and the following injuries were found on his body: (i) Incised wound 3, 3/4" x ⅓" cartilage deep, thyroid . (ii) Incised wound 3/4" x ⅓" muscle deep on left side neck. (iii) Incised wound 1 1/4" x 1/2" bone deep on lower part of sternum. (iv) Incised wound 2, 1" x ⅓" cavity deep 11-'2" above umbilicus. (v) Incised wound 1 1/2" x ⅕" muscle deep below left rib on abdomen. (vi) Incised wound 3/4" x 1/4" muscle deep lateral to umbilicus left abdomen. (vii) Abrasion 1" x 1/4" on left lateral maleolus. (viii) Abrasion 1 1/2" x ⅕" Rt. shoulder top. (ix) Abrasion 2" x 1/4" left leg lower 1/2. The cause of death was opined in the following manner: "From the above mentioned observation and finding in the opinion of Medical Board cause of death is hemorrhage and shock due to injury to liver and omentum." He has proved the post mortem report Ex.P/56. 16. Thus, from the statement of PW12 Dr. B. M. Sharma, it is clear that the deceased Naveen received 9 injuries of which six were incised wounds on vital parts of his body and the cause of his death was haemorrhage and shock due to injury to liver and omentum. 17. Hence, the death of the deceased Naveen was not natural one, but it was homicidal and the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed one. Post-Mortem Report of deceased Sippu 18. PW12 Dr. 17. Hence, the death of the deceased Naveen was not natural one, but it was homicidal and the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed one. Post-Mortem Report of deceased Sippu 18. PW12 Dr. B.M. Sharma has further stated in his statement recorded in Court that on 11.1.1999 at about 10.20 AM, the post mortem of the dead body of the deceased Sippu was also conducted and the following injuries were found on his body: (i) Incised wound 1 1/4" x 1/2 on neck 3/4" below left ear. v(ii) Incised wound 1" x 1/2" on neck 1" below Rt. ear. Both wound communicate with each other. (iii) Abrasion 2, 1/4" x 1/4" thyroid cartilage. He has further stated that there was a cut on both sides of neck vessels and cartilage tissues. The cause of death was opined in the following manner:- "From the above mentioned observation and finding in the opinion of Medical Board, cause of death is haemorrhage and shock due to injury to neck vessels. " He has proved the post-mortem report Ex.P/57. 19. Thus, from the statement of PW12 Dr. B.M. Sharma, it is clear that the deceased Sippu received 3 injuries and there was a cut on both sides of neck vessels and cartilage tissues and the cause of his death was haemorrhage and shock due to injury to neck vessels. 20. Hence, the death of the deceased Sippu was not natural one, but it was homicidal and the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed one. 21. Before proceeding further, some light has to be thrown on the site plan (Ex.P/27) and description memo (Ex.P/27A). Site plan Ex.P/27 & description memo Ex.P/27A 22. The map of the house of deceased Naveen has been shown in the site p]an Ex.P/27 which was got prepared by PW14 Tribhuvan Singh and the same has been proved by him. 23. 21. Before proceeding further, some light has to be thrown on the site plan (Ex.P/27) and description memo (Ex.P/27A). Site plan Ex.P/27 & description memo Ex.P/27A 22. The map of the house of deceased Naveen has been shown in the site p]an Ex.P/27 which was got prepared by PW14 Tribhuvan Singh and the same has been proved by him. 23. The details of the site are given in the description memo Ex.P/27A and in that description memo Ex.P/27A, the bed room where the alleged incident took place was shown at place A-12 to A-15 and in that bed room, bed of the size 6x6 feet was also shown and at place A/16, the dead body of the deceased Lakki was shown and at place A/17, the dead body of the deceased Sippu was shown and at place A/19, nada (article 17) was shown and that nada itself reveals that it was cut by sharp edged weapon and near the double bed, beneath the cushion, ladies purse was found containing Rs. 3998/-, which was shown at place A-20 and at place 21, the dead body of the deceased Naveen between double bed and almirah was shown. At place A-5, two bags of Areal Super Fine Salt were shown and photo of these bags is Ex.P/10. At place A- 10, the bed room was shown, which is near about of size 12x12 feet and in that bed room, there was double bed of the size 6x6 feet and at place A-11, the gate of the bed room was shown and it was found open. The size of the house of the deceased was shown to be 12x50 at place DEFG and further details of that house were shown in the site plan Ex.P/27. 24. Before proceeding further, recovery made at the instance of the each accused appellant and the approver PW1 Lalchand has to be seen and before that, some thing should be said on legal aspect of the recovery and information given by them under section 27 of the Indian Evidence Act. Recovery of articles 25. For applicability of Section 27, two conditions are pre-requisite; (i) information must be such as caused discovery of the fact; (ii) the information must relate distinctly to the fact discovered so much of such information, whether it amounts to a confession or relate distinctly thereby discovery may be proved. 26. Recovery of articles 25. For applicability of Section 27, two conditions are pre-requisite; (i) information must be such as caused discovery of the fact; (ii) the information must relate distinctly to the fact discovered so much of such information, whether it amounts to a confession or relate distinctly thereby discovery may be proved. 26. Section 27 of the Indian Evidence Act is an exception to the general rule that a statement made before police is not admissible in evidence. 27. The following are the requirements or conditions for application of Section 27 of the Indian Evidence Act: 1. The fact must have been discovered in consequence of the information received from the accused. 2. The person giving the information must be accused of an offence. 3. He must be in custody of a police officer. 4. Only that portion of the information which relates strictly to discovery can be proved. The rest is irrelevant. 5. The discovery of fact must relate to the commission of some crime. 6. Before the statement is proved somebody must depose that some article was discovered in consequence of the information received from the accused. 28. Keeping the above principles in mind, the recovery in the present case is being discussed. Recovery at the instance of accused appellant Liluram @ Gallu. 29. On 17.1.1999 at about 7.00 PM, the accused appellant Liluram @ Gallu was arrested through arrest memo Ex.P/56 and on 26.1.1999, he gave information Ex.P/66 to PW14 Tribhuvan Singh to the effect that out of the articles, which were stolen on the fateful day from the house of deceased Naveen, he received one silver paijeb, one chain, one mangle-sutra and one tikka, which he could get recovered and in pursuance of that information Ex.P/66, the accused appellant Liluram @ Gallu got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/51 in presence of Ramesh Kumar and Govind Ram Bhatiya (PW11):- 1. One silver paijeb article-1 2. One silver chain article-2 3. One Mangal-sutra article-3 4. One Tikka article-4 30. So far as the fact that the accused appellant Liluram @ Gallu was arrested on 17.1.1999 through arrest memo Ex.P/56 is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali. 31. One silver paijeb article-1 2. One silver chain article-2 3. One Mangal-sutra article-3 4. One Tikka article-4 30. So far as the fact that the accused appellant Liluram @ Gallu was arrested on 17.1.1999 through arrest memo Ex.P/56 is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali. 31. So far as the recovery of above four articles at the instance of accused appellant Liluram @ Gallu is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali and furthermore, their statements about recovery are corroborated from the statement of the approver PW1 Lalchand and also from independent witness PW11 Govind Ram Bhatia. 32. Thus, the fact that at the instance of accused appellant Liluram @ Gallu, the above mentioned articles were recovered stands proved by the prosecution. Recovery at the instance of accused appellant Laliy# Doom 33. On 17.1.1999 at about 8.10 PM, the accused appellant Laliya Doom was arrested through arrest memo Ex.P/68 and on 26.1.1999, he gave information Ex.P/67 to PW14 Tribhuvan Singh the effect that he could get recovered one ring and knife which was used in the crime, which he had kept in the house of his brother-in-law Kai]ash and in pursuance of that information Ex.P/67, the accused appellant Laliya Doom got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/53 in presence of Ramesh Kumar and Govind Ram Bhatiya (PW11): 1. One ring of gold article-5 2. One knife article-38 34. So far as the fact that the accused appellant Laliya was arrested on 17.1.1999 through arrest memo Ex.P/68 is concerned, the same stands proved the statements of PW14 Tribhuvan Singh and PW13 Samun Ali. 35. So far as the recovery of above two articles at the instance of accused appellant Laliya Doom is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali and furthermore, their statements about recovery are corroborated from the statement of the approver PW1 Lalchand and also independent witness PW11 Govind Ram Bhatia. 36. Thus, the fact that at the instance of accused appellant Laliya Doom, the above mentioned two articles were recovered stands proved by the prosecution. Recovery at the instance of approver PW1 Lalchand 37. 36. Thus, the fact that at the instance of accused appellant Laliya Doom, the above mentioned two articles were recovered stands proved by the prosecution. Recovery at the instance of approver PW1 Lalchand 37. On 18.1.1999 at about 4.00 PM, the approver PW1 Lalchand was arrested through arrest memo Ex.P/1 and on 27.1.1999, he gave information Ex.P/2 to PW14 Tribhuvan Singh to the effect that out of the articles, which were stolen on the fateful day from the house of deceased Naveen, he received one silver paijeb, one necklace, one kanta and one chain, which he could get recovered and in pursuance of that information Ex.P/2, the approver PW1 Lalchand got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through fard Ex.P/3 in presence of Ajayab Singh and Ashok Kumar (PW8):- ' 1. One silver paijeb article-7 2. One chain article-8 3. One necklace article-9 4. One Kanta article-10 38. So far as the fact that the approver PW1 Lalchand was arrested on 18.1.1999 through arrest memo Ex.P/1 is concerned, the same stands proved from the statement of PW14 Tribhuvan Singh and PW13 Samun Ali. 39. So far as the recovery of above four articles at the instance of the approver PW1 Lalchand is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali and furthermore, their statements about recovery are corroborated from the independent witness PW8 Ashok Kumar, who has not been declared hostile and he has fully supported the case of the prosecution. 40. Thus, the fact that at the instance of the approver PW1 Lalchand, the above mentioned four articles were recovered stands proved by the prosecution. Recovery at the instance of accused appellant Shivlal 41. 40. Thus, the fact that at the instance of the approver PW1 Lalchand, the above mentioned four articles were recovered stands proved by the prosecution. Recovery at the instance of accused appellant Shivlal 41. On 21.1.1999 act about 3.40 PM, the accused appellant Shivlal was arrested through arrest memo Ex.P/69 and on 27.1.1999, he gave information Ex.P/70 to PW14 Tribhuvan Singh to the effect that he could get recovered one ring of gold and some torn currency notes which had been kept by him in the pent stained with blood and he could also get recovered, one dagger and black loi, which were used in the crime and in pursuance of that information Ex.P/70, the accused appellant Shivlal got recovered the following articles and the same were seized by PW14 Tribhuvan Singh through lard Ex.P/42 in presence of Ajayab Singh and Ashok Kumar, PW8: 1. One dagger article-29 2. One Pant article-30 3. One black loi article-31 4. One gold ring article-6 5. Torn currency notes article-33 42. So far as the fact that the accused appellant Shivlal was arrested on 21.1.1999 through arrest memo Ex.P/69 is concerned, the same stands proved from the statement of PW14 Tribhuvan Singh and PW13 Samun Ali. 43. So far as the recovery of above five articles at the instance of accused appellant Shivlal is concerned, the same stands proved from the statements of PW14 Tribhuvan Singh and PW13 Samun Ali and furthermore, their statements about recovery are corroborated from the statement of the approver PWI Lalchand and also from independent witness PW8 Ashok Kumar, who has not been declared hostile and he has fully supported the prosecution case. 44. Thus, the fact that at the instance of accused appellant Shivlal, the above mentioned five articles were recovered stands proved by the prosecution. 45. In view of the above, the recovery made at the instance of the accused appellants, namely, Laliya Doom, Shivlal and Liluram @ Gallu and the approver PW1 Lalchand stands proved by the statements of police officials, namely, PW13 Samun Ali and PW14 Tribhuvan Singh as well as by the evidence of the approver PW1 Lalchand and also from the evidence of independent witnesses, namely, PW11 Govind Ram and PW8 Ashok Kumar. 46. 46. No doubt PW5 Kishanlal has admitted in his cross-examination that all the articles, which were identified by him before the Magistrate, were shown to him earlier and from this point of view, his statement has become weak, but as already stated above, the fact that all these articles were recovered at the instance of the accused appellants and the approver PW 1 Lalchand is well proved by the prosecution. 47. Therefore, the fact that the articles, which were identified by PW5 Kishanlal before the Magistrate, were shown to him earlier would not affect the case of the prosecution on point of recovery. 48. Before proceeding further, it may be stated here that the powers of the High Court in dealing with confirmation cases under section 368 Criminal Procedure Code are not affected by the provisions of Section 386 Criminal Procedure Code The fact that an appeal has been preferred by the accused cannot affect the exercise of those powers. It would make no difference even if the appeal preferred by the accused is technically heard before the final orders are passed in the confirmation case. Where both the confirmation case and the appeal arise from the same order of conviction, the uniform practice of the High Court has been to hear both the confirmation case and the appeal preferred by the accused together and to deal with the merits of the case on the basis that all material questions of fact and law can be agitated by the accused. This practice is fully justified by the provisions of the Criminal Procedure Code, 1973. 49. It is well settled that in a reference for confirming death sentence, the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused and it should not be disposed of in a casual manner. For that the decision of the Hon'ble Supreme Court in Subbaiah Ambalam v. State of Tamil Nadu ( AIR 1977 SC 2046 ) may be referred to. 50. Thus, taking into account all the facts and circumstances, just mentioned above, from the point of view of reference and from the point of view of submissions made by the learned counsel appearing for the accused appellants, the findings of conviction recorded against the accused appellants by the learned Addl. 50. Thus, taking into account all the facts and circumstances, just mentioned above, from the point of view of reference and from the point of view of submissions made by the learned counsel appearing for the accused appellants, the findings of conviction recorded against the accused appellants by the learned Addl. Sessions Judge (Fast Track) through impugned judgment dated 18.6.2003 and awarding of death sentence to the accused appellants Shivlal and Laliya Doom and life imprisonment to the accused appellant Liluram @ Gallu by the learned Addl. Sessions Judge (Fast Track) through impugned order of sentence dated 21.6.2003 and the evidence of the approver PW1 Lalchand are to be examined critically, minutely and analytically. 51. In this case, approver PW1 Lalchand was one of the accused persons and after his arrest and during investigation, he made an application before the learned Chief Judicial Magistrate, Sri Ganganagar seeking pardon and the learned Chief Judicial Magistrate, Sri Ganganagar through order dated 12.4.1999 granted pardon to PW1 Lalchand on the condition that he would disclose true facts pertaining to alleged incident and he was made approver and thereafter, his statement was recorded by the learned Chief Judicial Magistrate, Sri Ganganagar on 15.4.1999 and the same is Ex.D/2 and he has been examined as PW 1 on behalf of the prosecution. 52. Before examining the evidence of the approver PW1 Lalchand, legal position in respect of approver and his evidence may be seen. Legal position in respect of approver and his evidence 53. Section 306 Criminal Procedure Code deals with tender of pardon to accomplice and for convenience, Section 306(1) Criminal Procedure Code, is quoted here: "Section 306(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof." 54. Thus, under section 306(1) Cr.P. C., a pardon can be granted to a person, who is supposed to have been directly or indirectly concerned with the commission of crime, on the condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. 55. Section 306(1) Criminal Procedure Code does not contemplate that the permission to tender pardon must only relate to a person who is an accomplice or has implicated himself in the offence. What the section requires is to obtain statement of any person who is supposed to be directly or indirectly concerned in or privy to the offence and such a person can be granted pardon on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence. 56. The very basis of the Section 306(1) Criminal Procedure Code is that a person, who applies for pardon under the provisions of this section can be assumed to be directly or indirectly concerned in the offence similarly he may be assumed to be privy to the offence. Thus, the person applying may not be actual culprit. If he is not actual culprit, there does not arise any question of exculpating one's own self. Participation in crime, that is, inculpation is not the requirement of that section. 57. An accomplice is different from a "spy". An accomplice is a person who concurs fully in the criminal designs of his co-conspirators for a time and joins in the execution, of those designs; while a spy or informer does not concur in those designs but enters into the conspiracy as agent for the prosecution for the sole purpose of detecting and disclosing it and of bringing the offenders to justice. 58. Thus, the approver must make a full and true disclosure before the committing Magistrate as well as before the Sessions Court of all facts within his knowledge with regard to the offence. 59. It may be stated here that the word "accomplice" has not been defined in the Evidence Act and, therefore, an accomplice can be defined as a person who participates in the commission of the actual crime charged against an accused. He is to be a participles criminis. 60. 59. It may be stated here that the word "accomplice" has not been defined in the Evidence Act and, therefore, an accomplice can be defined as a person who participates in the commission of the actual crime charged against an accused. He is to be a participles criminis. 60. According to Section 133 of the Evidence Act, an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. For convenience, Section 133 of the Evidence Act is quoted here: "Section 133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." 61. Section 133 of the Evidence Act is the only absolute rule of law as regards the evidence of an accomplice. But illustration (b) to Section 114 of the Evidence Act is a rule of guidance to which also the Court should have regard. It is however, not a hard and fast presumption incapable of rebuttal, a presumption juris et de jure. 62. For convenience, illustration (b) of Section 114 of the Evidence Act may be quoted here which permits the court to raise a presumption: "(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars." This is not mandatory to draw such presumption, if otherwise testimony of accomplice is considered creditworthy on its own. Harmoniously read Section 133 declared an accomplice to be a competent witness, independently on whose evidence, if found to be reliable, conviction can rest. Illustration (b) of Section 114 on the other hand provides a rule of caution in evaluating the evidence of an accomplice. 63. Thus, a combined reading of Sections 133 and illustration (b) of Section 114 of the Evidence Act reveals that according to Section 133, which is a rule of law, an accomplice is a competent witness to give evidence and according to illustration (b) of Section 114, which is a rule of practice, it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. In this respect, the decisions of the Hon'ble Supreme Court in Bhiva Doulu Patil v. State of Maharashtra ( AIR 1963 SC 599 ) and Abdul Sattar v. Union Territory of Chandigarh ( AIR 1986 SC 1438 ) may be referred to. 64. It may be stated here that the evidence of an accomplice ought to be regarded with suspicion. The degree of suspicion which will attach to it must vary according to the extent and nature of the complicity. There should be such corroboration of the accomplice's evidence as will satisfy a prudent person that the approver can be regarded as a truthful person. The corroboration may even by circumstantial evidence. The nature of the corroboration will depend on and vary with the circumstances of each case. It is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice or the complaint is true and that it is reasonably safe to act upon it and the corroboration need not be by direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. For that, the decision of the Hon'ble Supreme Court in State of Karnataka v. M. Devendrappa and anr. ( (2002) 3 SCC 89 ) may be referred to. 65. After going through various authorities of the Hon'ble Supreme Court including the authorities in Lachi Ram v. State of Punjab ( AIR 1967 SC 792 ) , S aravanabhavan v. State of Madras ( AIR 1966 SC 1273 ) and Maghar Singh v. State of Punjab ( AIR 1975 SC 1320 ) , we are of the opinion that an approver's evidence to be accepted must satisfy the following tests: (i) That the first test to be applied is that his evidence must show that he is a reliable witness and that is a test which is common to all witnesses. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver and that there is no finding that the approver has given false evidence. (ii) That the second test which thereafter still remains to be applied in the case of an approver and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient corroboration. This is not to say that the evidence of an approver has to be considered in two water tight compartments; it must be considered as a whole alongwith other evidence. Circumstantial evidence may constitute substantial and sufficient corroboration of an approver's statement in material particulars. (iii) That circumstantial or other corroborative evidence need not be sufficient to sustain the conviction of an accused on its own. In such event, there is no need to secure the evidence of an accomplice. 66. In the light of the above legal position, the evidence of the approver PW1 Lalchand is being examined. 67. PW1 Lalchand in his statement recorded in Court as approver has given almost the same version which was given by him before the learned Chief Judicial Magistrate through his statement Ex.D/2, which has already been discussed above in detail and from his statement recorded in Court as PW1, it clearly appears that he has described the whole incident in a very minute manner specifying the role of each and every accused including himself in the alleged occurrence. He has given vivid picture of the occurrence right from the very beginning disclosing the particular act done by each and every accused person including himself. He has given vivid picture of the occurrence right from the very beginning disclosing the particular act done by each and every accused person including himself. He has also categorically described as to how he and other accused persons first reached on the roof of the house of the deceased-Naveen and then in the bed room of the deceased Naveen and he has specifically stated the manner in which the accused Vedia (absconder), accused appellants Laliya Doom and Shivlal committed rape with the deceased Lakki and how the accused Vedia (absconder) caused murder of deceased Sippu with dagger, how the accused appellant Laliya Doom caused the murder of deceased Lakki and how the accused appellant Shilial caused murder of deceased Naveen with knife and he has also described how he and accused appellant Liluram @ Gallu gave support to other accused in the above acts and he has also described the manner in which decoity was made in the house of the deceased Naveen.68. The approver PW1 Lalchand was cross-examined at length, but nothing has come out which shatters or affects his testimony on material points. However, the following four contradictions or omissions have been found in the statement recorded in Court as PW1 and statement Ex.D/2 recorded under section 164 Criminal Procedure Code by the Chief Judicial Magistrate: (i) That in the statement Ex.D/2 recorded under section 164 Criminal Procedure Code by the Chief Judicial Magistrate, he has stated that all the accused persons remained on the roof of the house of the deceased Naveen for 10-15 minutes while in his statement recorded in Court as PW1 he has stated that all the accused persons sat on the roof for near about one and half hours. (ii) That in the statement Ex.D/2 recorded under section 164 Criminal Procedure Code, he has stated that when the accused Vedia (absconder) was committing rape with the deceased Lakki, her child deceased Sippu awoke and he gave dagger blow on his neck, as a result of which, his neck was cut and accused Vedia (absconder) further gave 2-3 knife blows on the body of deceased Sippu, while in his statement recorded in Court, he has stated that after one blow on the neck of deceased Sippu, his neck was cut. (iii) That in the statement recorded under section 164 Criminal Procedure Code, he has stated that since he and other accused persons were in drunken state, therefore, they could not hang the deceased Naveen on hook of the roof, while in his statement recorded in Court, he has stated that he has not taken wine and he had taken two tablets of Dyjapam. (iv) That in the statement recorded under section 164 Criminal Procedure Code, he has stated that after incident, he and accused appellant Liluram first came and later on, three accused persons followed them, while in his statement recorded in Court, he has stated that all the accused persons came out from the house of deceased Naveen after opening the kunta from in-side and then, they put lock outside. 69. All the above four contradictions or omissions have been considered by the learned Addl. Sessions Judge (Fast Track) in his impugned judgment and after consideration, he found that all the contradictions or omissions are not of serious nature, but are of minor nature and therefore, he came to the conclusion that the testimony of the approver PW1 Lalchand is not affected at all in any manner by the above contradictions or omissions.70. Shri D.S. Shekhawat, learned counsel for accused appellant Liluram strenuously urged that yet another serious discrepancy in the statement of approver PW1 Lalchand, makes his statement uncreditworthy. It was pointed out that as per statement of approver PW1 Lalchand, accused appellant Shivlal was having with him dagger (khanjar) and accused appellant Laliya Doom was having with him knife. But, no such weapon as attributed to these two accused appellants has been recovered from either of them as stated by approver PW1 Lalchand. However, at Shivlal's instance a knife was recovered and at Laliya Doom's instance, a khanjar (dagger) was recovered.71. The question for consideration is whether the testimony, reliability and credibility of the evidence of the approver PW1 Lalchand, because of the above contradictions/omissions/discrepancies is affected in any manner or not or whether the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed or not.72. Before proceeding further, legal position with respect to contradictions/omissions/discrepancies as observed by the Hon'ble Supreme Court from time to time has to be seen. On contradictions and discrepancies73. Sessions Judge (Fast Track) in this respect are liable to be confirmed or not.72. Before proceeding further, legal position with respect to contradictions/omissions/discrepancies as observed by the Hon'ble Supreme Court from time to time has to be seen. On contradictions and discrepancies73. In N.D. Dhayaqude v. State of Maharashtra ( AIR 1977 SC 381 ) , the Hon'ble Supreme Court observed that when evidence before court substantially differs from the statement before the police, no reliance can be placed on such evidence.74. In State of Karnataka v. Lakshmanaiah ( AIR 1993 SC 100 ) , the Hon'ble Supreme Court held that contradiction on a non-material point in the prosecution case is no ground to reject the whole of the testimony of the witnesses.75. In Suraj Mal v. Delhi Administration ( AIR 1979 SC 1408 ) , the Hon'ble Supreme Court observed that when witness makes two inconsistent statements in his evidence, he is unworthy of credit and without special circumstances no conviction on his evidence can be based.76. In Bharat Singh v. State of UP ( AIR 1972 SC 2478 ) , the Hon'ble Supreme Court held that contradictory evidence as to weapons in possession of the accused persons does not discredit the evidence of such witnesses.77. It is settled law that some improvements here and some exaggerations there or some minor discrepancies in the evidence do not hurt the prosecution case, as held by the Hon'ble Supreme Court in Meharban v. State of MP (AIR 1996 SC 1528) .78. In Bhoginbhai v. State of Gujarat ( AIR 1983 SC 759 ) , the Hon'ble Supreme Court while explaining reasons as to why natural discrepancy should be overlooked states that by and large a witness cannot be expected to possess memory. It was further observed by the Hon'ble Supreme Court in that case that ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in short time span. It was further observed in that case that discrepancies which do not go to root of the matter and shake the basis version of the witnesses therefore cannot be annexed with undue importance.79. It was further observed in that case that discrepancies which do not go to root of the matter and shake the basis version of the witnesses therefore cannot be annexed with undue importance.79. In the matter of appreciating evidence if petty details and minor contradictions in the evidence come, they are bound to come as they are inevitable if a story of a grave crime is narrated under the stress and therefore, such petty minor contradictions ought not to be permitted to tilt the scales of justice as delivering of justice is the primary object of the court and in other words, such petty minor contradictions have to be over-looked by the court. For that the decision of the Hon'ble Supreme Court in State of UP v. Ram Saggar Yadav ( AIR 1985 SC 416 ) may be referred to.80. In criminal trial slight discrepancies even in the evidence of eye witnesses is not material, as held by the Hon'ble Court in Jagadish v. State of MP ( AIR 1981 SC 1167 ) .81. In the case of Bhognibhai (supra), it was observed by the Hon'ble Supreme Court that on minor discrepancies overmuch importance cannot be attached.82. In Faquira v. State of UP ( AIR 1976 SC 915 ) , the Hon'ble Supreme Court observed that minor discrepancy guarantees that the witnesses are not tutored.83. In Sohrab v. State of HP ( AIR 1972 SC 2020 ) , the Hon'ble Supreme Court observed that some differences and discrepancies in details are generally found in the case of honest witnesses and unless they are material, they need not necessarily be disbelieved and it is also open for the court to accept a part of the evidence rejecting the rest.84. In State of Rajasthan v. Kalki ( AIR 1981 SC 1390 ) , the Hon'ble Supreme Court while explaining discrepancies observed that material discrepancies are those which are not normal and not expected of a normal person.85. Taking into consideration the above legal position, the contradictions/omissions/discrepancies, which have been pointed out above, in our considered opinion, are of minor nature and the same cannot be regarded as material one. These discrepancies do not go to the root of the matter and do not shake the basis of the statement of the approver PW1 Lalchand. Taking into consideration the above legal position, the contradictions/omissions/discrepancies, which have been pointed out above, in our considered opinion, are of minor nature and the same cannot be regarded as material one. These discrepancies do not go to the root of the matter and do not shake the basis of the statement of the approver PW1 Lalchand. The discrepancy whether the approver PW1 Lalchand sat on the roof for 10-15 minutes or for one and half hours is of very little importance. Similarly, the discrepancy whether accused Vedia (absconder) gave one blow on the neck of the deceased Sippu or 2-3 knife blows is also of very little importance. As per post mortem report Ex.P/57, deceased Sippu received 2 sharp edged injuries. That discrepancy can be treated as very minor because of the simple reason that the material point is whether accused Vedia (absconder) gave knife blow on the neck of deceased Sippu and that fact is very well proved from the medical evidence.86. Similarly, the discrepancy in the statement of the approver PW1 Lalchand where he has stated at one place that he also took wine, but in his statement recorded in Court he has stated that he had not taken wine, but he took two tablets of Dyjapam is also of no value as by both modes he was in intoxication.87. Similarly, the discrepancy in the statement of the approver PW Lalchand on point of following is also of no value as after the incident, all the accused persons came down from the roof and ran away.88. So far as the discrepancy in the statement of the approver PW1 Lalchand on point of recovery of weapons in concerned, to us it appears to be wholly insignificant looking to imperfect human memory and other evidence which renders this discrepancy wholly irrelevant.89. The recovery of two weapons of crime attributed to have been used by the two accused appellants Shivlal and Laliya Doom has been made at the instance of the two accused albeit in converse order than spoken by approver PW1 Lalchand. Both the weapons were found to be stained with human blood of B positive group which was the blood group of all the three deceased. In these circumstances, substraction in the statement of approver to the extent he attributes the weapons used in commission of crime has been proved beyond reasonable doubt. Both the weapons were found to be stained with human blood of B positive group which was the blood group of all the three deceased. In these circumstances, substraction in the statement of approver to the extent he attributes the weapons used in commission of crime has been proved beyond reasonable doubt. The two weapons have been recovered at the instance of two accused respectively who are alleged to have used the said weapons. In these circumstances, attributing the possession and use of respective weapon in vice verse order can only be attributed to imperfect human memory which is truthful in substance, but falters in detail.90. Furthermore, in the case of Bharat Singh (supra), the Hon'ble Supreme Court observed that contradictory evidence as to weapons in possession of the accused persons does not discredit the evidence of such witnesses and in view of this, the discrepancy in the statement of the approver PW1 Lalchand on point of recovery and possession of weapons does not materially affect his testimony.91. Thus, from every point of view, it can easily be concluded that the contradictions/omissions/discrepancies found in the statement of the approver PW1 by and large are to be over looked as they are not material and they do not affect his testimony in any manner whatsoever. Therefore, the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed as such contradictions or omissions or discrepancies are bound to occur and they may be regarded as natural one in such a long statement. The contradictions or omissions or discrepancies are of minor nature and they do not affect the testimony of the approver PW1 Lalchand in any manner.92. Therefore, the argument that the statement of the approver PW1 Lalchand suffers from basic infirmities because of the above discrepancies or omissions or contradictions, stands rejected.93. The next argument assailing the testimony of the approver PW1 Lalchand is that his version that from the roof, he was seeing the occurrence, which took place in the bed room of the deceased Naveen, is false one as before the bed room of the deceased Naveen, there was verandah and therefore, it was not possible for him to see the occurrence happening in the bed room and thus, he cannot be regarded as an eye witness of the alleged occurrence.94. In this respect, it may be stated here that the approver PW1 Lalchand in his statement recorded in Court has stated that adjacent to the house of the deceased Naveen, there was a vacant nohra and wall of that nohra was small one and after climbing over the wall of that nohra, he and other accused persons reached on the roof of the house of the deceased Naveen and from that place, bed room was very much visible and they saw that deceased Naveen, deceased Lakki and deceased Sippu were sleeping on the double bed and light in the room was on. He has further stated that the door of the bed room was open one and they sat on the roof for near about one and half hours and thereafter, the accused appellant Shivial asked him and accused appellant Liluram to remain on the roof and the remaining three accused persons, namely, accused appellants Shivlal, Laliya Doom and accused Vedia (absconder) came down in the chowk of the house of deceased Naveen and in coming down, they took the support of the bags of salt, but even then there was a sound, as a result of which, deceased Naveen and deceased Lakki awoke, but all the three accused persons terrorised deceased Naveen and deceased Lakki with the weapons i.e. dagger and knife and thereafter, all the three accused persons tied the deceased Naveen and deceased Lakki and then, they committed rape with the deceased Lakki and they caused the murder of deceased Naveen, deceased Lakki and deceased Sippu and he and accused appellant Liluram also came down and reached in the bed room and also supported the other accused persons in the above acts.95. In our considered opinion, a bare perusal of the site plan Ex. P/27 and description memo Ex. P/27A and the statement of the approver PW1 Lalchand clearly reveals that after reaching on the roof of the house of the deceased Naveen, all the accused persons including the approver PW1 Lalchand sat there and there was light in the bed room and projection outside the room was not low at door level but was at the roof level. There was open chowk in front of verandah and over-looking that verandah is the roof. There was open chowk in front of verandah and over-looking that verandah is the roof. From photographs Ex.P/4 to Ex.P/24 which were taken on site on 10.1.1999, it is apparent that bed was just in front of open door and if light is on in the room the person sitting on roof over-looking the open chowk is in a position to look which is going on bed. Therefore, to say that there was no possibility to see the happening in the bed room from the roof by the approver PW1 Lalchand, cannot be accepted.96. Apart from this, since the approver PW1 Lalchand has given a vivid picture and description of the whole incident, which took place in the bed room of the deceased Naveen and he has specifically assigned the role played by each and every accused including himself in the alleged occurrence, for example, his statement tallies with the position as shown in the site plan Ex.P/27 and description memo Ex. P/27A and furthermore, the photographs Ex. P/4 to Ex.P/24 also reflect that whatever he has uttered, the same exists at the place of occurrence and further, he has stated that first three accused persons, namely, Vedia (absconder), Shivial and Laliya Doom (present accused appellants) came down from the roof and while coming down from the roof, they took the support of salt bags and because of that, sound was there, as a result of which, deceased Naveen and deceased Lakki were awakened and the presence of these salt bags at the place of occurrence is very much shown in the description memo Ex.P/27A and the photo. In these circumstances, his presence alongwith other accused persons at the place of occurrence cannot be doubted in any manner.97. Therefore, when the presence of the approver PW1 Lalchand alongwith other four accused persons at the place of occurrence cannot be doubted in any manner and that fact stands established, to say that since the approver PW1 Lalchand was on roof, he could not see the occurrence does not appear to be plausible and correct as after sometime sitting on the roof, he and accused appellant Liluram also followed other three accused persons, who had already reached in the bed room earlier to them. There may be a difference of time between them, but the fact is that later on all the five persons were inside the room.98. There may be a difference of time between them, but the fact is that later on all the five persons were inside the room.98. Thus, from every point of view, it can easily be concluded that the approver PW1 Lalchand saw the occurrence which took place in the bed room of the deceased Naveen and the argument that he could not see the occurrence from the roof and he cannot be regarded as eye witness stands rejected.99. The next argument assailing the testimony of the approver PW1 Lalchand is that since he has not implicated himself in the manner as the approver must implicate and he has separated himself from committing the murders in actual sense of three persons, namely, deceased Naveen, deceased Lakki and deceased Sippu and also separated himself from committing the rape with the deceased Lakki in actual sense, therefore, his statement should not have been believed by the learned trial Judge.100. In our considered opinion, the above argument cannot be accepted because of the following observations made by the Hon'ble Supreme Court in Suresh Chandra Bahri v. State of Bihar (1995 SCC (1) Suppl.80) : "Since many a times the crime is committed in a manner for which no clue or any trace is available for its detection and therefore, pardon is granted for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence which otherwise is unobtainable. The dominant object is that the offenders of the heinous and grave offences do not go unpunished, the legislature in its wisdom considered it necessary to introduce this section and confine its operation to cases mentioned in Section 406 of the Code. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the test. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence." 101. From perusing the above observations of the Hon'ble Supreme Court, it becomes clear that it is not necessary that implication of the approver should be at par with other accused in all respect because all that Section 306 Criminal Procedure Code requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.102. When the case of the present approver PW1 Lalchand is being examined, no doubt so far as his participation in actual sense in murdering the deceased Naveen, deceased Lakki and deceased Sippu as well as in committing rape with the deceased Lakki is not found, but his participation in the alleged occurrence right from the very beginning up to the end is found and therefore, his statement cannot be discarded on the above ground.103. It may be stated here that Section 149 Indian Penal Code makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus, this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathies and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. This section makes a member of the unlawful assembly responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. Thus, once the .Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in furtherance of the common object of that assembly, or such as the members or the assembly knew to be likely to be committed in furtherance of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.104. In the present case, all the accused persons including the approver PW1 Lalchand formed an unlawful assembly and made a conspiracy to commit rape with the deceased Lakki and decoity in the house of the deceased Naveen and were prepared to take care of any resistance offered and in pursuance of that, the accused appellants Shivlal and Laliya Doom and accused Vedia (absconder) committed rape with the deceased Lakki and they caused the murders of deceased Naveen, deceased Lakki and deceased Sippu and though approver PW1 Lalchand and the accused appellant Liluram did not physically commit rape with deceased Lakki and they also did not cause murders of three persons in actual sense, but they would equally be liable for the acts done by the other accused persons and from this point of view also, the statement of the approver PW1 Lalchand cannot be discarded merely on the ground that he absolved himself from physical acts of committing murders and rape. His statement, in the absence of pardon, fully inculpates in the offence by admitting himself to be a member of unlawful assembly with common object of committing rape and decoity and actually helping in committing murder of deceased Naveen.105. Thus, the argument that since the approver PW1 Lalchand did not implicate himself with the physical commission of crime and excluded himself from committing three murders and rape in actual sense, therefore, his statement should not have been believed, stands rejected.106. Similarly, the argument that since the accused appellant Liluram @ Gallu did not commit rape with the deceased Lakki in actual sense, therefore, he could not be convicted under section 376(2)(g) Indian Penal Code cannot be accepted. 107. For convenience, Section. 376(2) (g) Indian Penal Code is quoted here: "376. Punishment for rape.- (1) .......... (2) Whoever.- (a) to (f) .......... (g) commits gang rape ......... Explanation-l.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section. 108. Thus, clause (g) of sub-section (2) of Section 376 Indian Penal Code deals with cases of gang rape. Explanation-1 applies to gang rape. By a deeming provision it enacts that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape and all of them shall be liable to be punished under sub-section (2) of Section 376 Indian Penal Code.109. The object in enacting this Explanation has been explained by the Hon'ble Supreme Court in Promod Mahto v. State of Bihar ( AIR 1989 SC 1475 ) thus : "This Explanation has been introduced by the legislature with a view to effectively deal with the growing menance of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under section 376 Indian Penal Code."110. Thus, the above observations of the Hon'ble Supreme Court and Explanation-1 to clause (g) of sub-section (2) of Section 376 Indian Penal Code clearly reveal that once it is established that accused persons had acted in concert and one or more of them raped the prosecutrix then all of them would be guilty under section 376 in terms of Explanation-1 to clause (g) of sub-section (2) of Section 376 Indian Penal Code, irrespective or whether she had not been raped by all.111. In the present case, all the five accused persons including the approver PW1 Lalchand formed an unlawful assembly and made a conspiracy to commit rape with the deceased Lakki and in pursuance thereof, the accused appellants Shivlal and Laliya Doom and accused Vedia (absconder) committed rape with the deceased Lakki and the accused appellant Liluram @ Gallu was present at the place of occurrence, but he did not commit rape with her in actual sense, but he would equally be liable for the acts done by the other accused persons and thus, he was rightly convicted under section 376(2)(g) Indian Penal Code by the learned trial Judge.112. Hence, the argument that since accused appellant Liluram @ Gallu did not commit rape with the deceased Lakki in real sense, therefore, he could not be convicted under-section 376(2)(g) Indian Penal Code stands rejected. Evidenciary value of statements of PW15 Chetan Das and PW16 Mahesh Chandra113. These two witnesses have been relied upon by the learned Addl. Sessions Judge (Fast Track), but it has been submitted by the learned counsel for the accused appellants that they are chance witnesses, therefore, their evidence should have been rejected and thus, no corroboration can be sought from their evidence to the statement of the approver PW1 Lalchand.114. If by chance or coincidence, a person happens to be at a place of occurrence at the time it takes place, he is called a chance witness. But, that fact by itself however, would not be enough to discredit his testimony, as held by the Hon'ble Supreme Court in Bahal Singh v. State of Haryana ( AIR 1976 SC 2032 ) . Evidence of PW15 Chetan Das115. But, that fact by itself however, would not be enough to discredit his testimony, as held by the Hon'ble Supreme Court in Bahal Singh v. State of Haryana ( AIR 1976 SC 2032 ) . Evidence of PW15 Chetan Das115. PW15 Chetan Das in his statement recorded in Court has stated that on the intervening night 9-10.1.1999 when he came out from his house for passing urine, he saw the room of Jangir Singh open and light was on and in that room of Jangir Singh, Kiran used to live as tenant and at that time, he saw the accused appellant Shivlal, accused Vedia (absconder) and the accused appellant Laliya Doom sitting in the room and they were saying that two had been finished and the third lady would have died by now.116. In our considered opinion, so far as the statement of PW15 Chetan Das is concerned, reliance cannot be placed on his testimony as it does not inspire confidence in the mind of the Court. In the month of January in Sri Ganganagar Distt., nights are generally very cold and therefore, to say that a person would go outside the house for passing urine in the street at 3.00 in the night when as per his own statement a toilet exists in his own house, does not appear to be plausible and correct one. Therefore, the learned Addl. Sessions Judge (Fast Track) has wrongly placed reliance on his statement and his findings in this respect are liable to be set aside. Other corroborative evidence to the statement of the approver PW1 Lalchand (1) Evidence of PW16 Mahesh Chandra117. PW16 Mahesh Chandra in his statement recorded in Court has stated that he knew accused persons before the alleged incident. Sessions Judge (Fast Track) has wrongly placed reliance on his statement and his findings in this respect are liable to be set aside. Other corroborative evidence to the statement of the approver PW1 Lalchand (1) Evidence of PW16 Mahesh Chandra117. PW16 Mahesh Chandra in his statement recorded in Court has stated that he knew accused persons before the alleged incident. He has further stated that on 9.1.1999 he visited the Government Hospital, Sri Ganganagar to enquire about the health of the wife of Jang Singh and at about 10 PM since she was having excessive bleeding, he was told by the doctor to arrange blood and thereupon, he left the hospital for the purpose of taking the blood from a person of village and when he was going towards the house of Daljit Singh, who was living in Bhanbhu Colony near Gurudwara, he saw five accused persons sitting near the house of deceased Naveen and out of five persons, three accused persons, who were present in Court, were recognised by him and the remaining two accused persons were accused Vedia (absconder) and the approver PW1 Lalchand. He has further stated that at that time, all the five accused persons were talking about the wife of the deceased Naveen and they were saying that they would satisfy their lust with her. He has further stated that when he was returning back from the house of Daljit Singh, he also found all the five accused persons sitting at the same place and they were making vulgar talks. Thereafter, he went to Jaipur and when he returned back to Sri Ganganagar on 13.1.1999, he came to know that deceased Naveen, his wife deceased Lakki and his son deceased Sippu had been murdered, he thought that since all the five accused persons were making vulgar talks about the wife of the deceased Naveen, therefore, the possibility that the alleged incident would have been committed by these five accused persons, cannot be ruled out and therefore, he informed the police about this on 13.1.1999.118. In our considered opinion, the statement of PW16 Mahesh Chandra cannot be discarded treating him to be a chance witness. In fact, only after his statement dated 13.1.1999, police machinery targeted towards the accused persons and later on, the accused persons were got arrested. In our considered opinion, the statement of PW16 Mahesh Chandra cannot be discarded treating him to be a chance witness. In fact, only after his statement dated 13.1.1999, police machinery targeted towards the accused persons and later on, the accused persons were got arrested. Had the names of the accused persons would have not been disclosed by PW16 Mahesh Chand on 13.1.1999 to the police, the said incident would have remained a blind incident and it would not have been unfolded. His statement appears to be worth reliable and the learned Addl. Sessions Judge (Fast Track) was right in placing reliance on his statement.119. Thus, the argument that the statement of PW16 Mahesh Chandra should be rejected on the ground that he is a chance witness, stands rejected and, it is held that his statement is reliable and corroborates the statement of the approver PW1 Lalchand and from his statement, whole prosecution story was unfolded.(2) Site plan Ex.P/27, description memo Ex.P/27A and photographs Ex.P/4 to Ex.P/24 and Ex.D/1120. As already stated above, in the site plan Ex.P/27, map of the house and shop of the deceased Naveen has been shown. The description memo Ex. P/27A contains the details of the site and place of occurrence and in that description memo Ex.P/27, the bed room where the alleged incident took place was shown and the size of the bed room and the double bed found in the bed room was also shown and the places where the dead bodies of deceased Naveen, deceased Lakki and deceased Sippu were found were also shown. It was further mentioned in the description memo Ex.P/27A that one nada (Article 17) was also found at the place of occurrence and that nada (Article 17) itself reveals that it was cut by sharp edged weapon. It was further mentioned in the description memo Ex.P/27A that two bags of Areal Super Fine Salt were found at the place of occurrence and the gate of the bed room was found open.121. The photographs of the articles found at the place of occurrence and the photographs of the deceased Naveen, deceased Lakki and deceased Sippu are Ex.P/4 to Ex. P/24 and these photos clearly depict that deceased Naveen was tied with string, the hands of deceased Lakki were tied and her mouth was also gaged by clothe and her neck was tied with electric wire. P/24 and these photos clearly depict that deceased Naveen was tied with string, the hands of deceased Lakki were tied and her mouth was also gaged by clothe and her neck was tied with electric wire. These photographs further depict that bags of salt were found at the place of occurrence.122. The above things mentioned in the site plan Ex.P/27 and description memo Ex.P/27A and photographs Ex.P/4 to Ex.P/24 clearly corroborate the statement of the approver PW1 Lalchand as the vivid picture of things and articles disclosed by him through his statement recorded in Court fully tallies with the place of occurrence and photographs. (3) FSL Report (Ex.P/73)123. A bare perusal of FSL report Ex.P/73 clearly reveals that on Salwar (Article 19) and Jumpher (Article 18) belonging to deceased Lakki, human semen was detected. This fact further strengthens the case of the prosecution and the statement of the approver PW1 Lalchand that the three accused persons, namely, accused Vedia (absconder) and the accused appellants Shivlal and Laliya Doom committed rape with the deceased Lakki.124. The argument that since human semen was not found on vaginal smear of the deceased Lakki, therefore, it cannot be said that rape was committed with her, cannot be accepted because of the simple reason that there is no finding in the report Ex.P/73 to the effect that on the vaginal smear of deceased Lakki, human semen was not found, but no finding was given because vaginal smear had been consumed during the examination. Therefore, if there was no human semen on vaginal smear, it was because it was consumed before examination. From this point of view, it cannot be said that it was a negative report.(4) FSL Report Ex.P/74125. A bare perusal of FSL report Ex.P/74 clearly reveals that on Salwar (Article 19), Jumpher (Article 18) and Coat (Article 20) belonging to the deceased Lakki, human blood was found. This fact also corroborates the statement of the approver PW1 Lalchand on the point how her murder took place.(5) FSL Report EX.P/75126. A bare perusal of FSL report Ex. A bare perusal of FSL report Ex.P/74 clearly reveals that on Salwar (Article 19), Jumpher (Article 18) and Coat (Article 20) belonging to the deceased Lakki, human blood was found. This fact also corroborates the statement of the approver PW1 Lalchand on the point how her murder took place.(5) FSL Report EX.P/75126. A bare perusal of FSL report Ex. P/75 clearly reveals that on the articles mentioned in it, human blood of B group was found and it also reveals that the blood group of the deceased Naveen, deceased Lakki and deceased Sippu was B group and thus, blood group found on the following recovered articles and the blood group of the deceased Naveen, deceased Lakki and deceased Sippu was the same: Articles Blood Group 1. Electric wire B 2. Jampher B 3. Baniyan B 4. Salwar B 5. Muflar B 6. Pieces of Rassi (Two only) B 7. Blood swab B 8. Pant B 9. Shirt B 10. Baniyan B 11. Underwear B 12. T-Shirt B 13. Baniyan B 14. Sweater - 15. Chaku B 16. Khanjar B 17. Pant B 18. Loi - 19. Blood sample of Luccky B 20. Blood sample of Naveen B 21. Blood sample of Sippu B 127. Thus, since the blood group found on the above articles recovered from the place of occurrence and at the instance of accused appellants tallies with the blood group of the deceased Naveen, deceased Lakki and deceased Sippu, as per FSL report Ex. P/75, which was admitted by the counsel for accused during trial, therefore, this fact shows the presence of the accused appellants at the place of occurrence and also corroborates the statement of the approver PW1 Lalchand and leads to the conclusion that in the incident as narrated by the approver PW1 Lalchand, all articles found and recovered were stained with human blood of deceased Naveen, deceased Lakki and deceased Sippu.128. Significantly these articles include articles Chaku and Khanjar, the two weapons of crime recovered at the instance of accused assailants Laliya Doom and Shivlal respectively both of which carry human blood of the group B positive which is also blood group of the three victims.(6) Recovery of articles at the instance of accused appellants including approver PW1 Lalchand129. As already stated above, the recovery of following articles was made at instance of the accused appellants, namely, Laliya Doom. As already stated above, the recovery of following articles was made at instance of the accused appellants, namely, Laliya Doom. Shivlal and Liluram @ Gallu and the approver PWI Lalchand and the same stands proved by the statements of police officials, namely, PW13 Samun Ali and PW14 Tribhuvan Singh as well as by the evidence of the approver PW1 Lalchand and also from the evidence of independent witnesses, namely, PW11 Govind Ram and PW8 Ashok Kumar: Name of accused persons Recovered articles (1) Liluram @ Gallu One silver paijeb article-1 (accused appellant) One silver chain article-2 One Mangle-sutra article-3 One Tikka article-4 (2) Laliya Doom One ring of gold article-5 (accused appellant) One knife article-38 (3) PW1 Lalchand One silver paijeb article-7 (approver) One chain article-8 One necklace article-9 One Kanta article-10 (4)Shivlal One dagger article-29 (accused appellant) One Pent article-30 One black loyee article-31 One gold ring article-6 Torn currency notes article-33 130. The so-called recovery of the above articles made at the instance of the accused appellants connects them with the commission of crime and the so called recovery can be treated as incriminating circumstance against the accused appellants and it further strengthens the statement of the approver PW1 Lalchand.(7) Corroboration from medical evidence131. The statement of the approver PW1 Lalchand further gets corroboration from the medical evidence, which is found in the statement of PW12 Dr.B.M. Sharma, who has conducted the post-mortem of the three deceased lakki, Naveen and Sippu, in respect of nature of injuries, place of injuries, weapon used and manner and mode of injuries received by the three deceased.132. The statement of the approver PW1 Lalchand further gets corroboration from the medical evidence, which is found in the statement of PW12 Dr.B.M. Sharma, who has conducted the post-mortem of the three deceased lakki, Naveen and Sippu, in respect of nature of injuries, place of injuries, weapon used and manner and mode of injuries received by the three deceased.132. Thus, since there is sufficient evidence of corroboration to the statement of the accomplice approver PW1 Lalchand, which could satisfy a prudent person that he was a truthful witness and since he has given a vivid and true picture of the whole incident and he has assigned the role played by each and every accused persons including himself right from the beginning till end and further, his statement is corroborated by circumstantial evidence, just mentioned above i.e. place of occurrence site plan Ex.P/27, description memo Ex.P/27A, photographs Ex.P/4 to Ex.P/24, FSL reports Ex.P/73 to Ex.P/75 and recovery made at the instance of accused persons including himself and also from the statement of independent witness, namely, PW16 Mahesh Chand, therefore, in these circumstances, it can easily be concluded that the approver PW1 Lalchand is a reliable, truthful and trustworthy witness and his statement has a ring of truth and his testimony inspires confidence and thus, learned Addl.Sessions Judge (Fast Track) was right in placing reliance on the testimony of the approver PW1 Lalchand.133. So far as the argument that since a ladies purse was round at the place of occurrence, therefore, had the accused appellants would have any intention for looting, they would also have taken that purse also is concerned, in our considered opinion, the same is wholly untenable as when three persons were murdered by them, it was possible that they would have lost mental balance and thus, after that, if they have left the ladies purse there, it does not mean that they did not commit any crime. Apart from this, the ladies purse was found beneath the cushion.134. The argument that since there was publicity/agitation against the administration as well as police, therefore, the accused appellants were falsely implicated in the alleged incident is concerned, the same cannot be accepted in view of the discussion just made above.135. Apart from this, the ladies purse was found beneath the cushion.134. The argument that since there was publicity/agitation against the administration as well as police, therefore, the accused appellants were falsely implicated in the alleged incident is concerned, the same cannot be accepted in view of the discussion just made above.135. Thus, the conclusion of the above discussion is that the following facts stands proved by the prosecution: (i) That all the five accused persons, namely, Shivlal, Laliya Doom, Liluram Gallu (present accused appellants), Vedia (absconder) and approver PW1 Lalchand formed an unlawful assembly and made a conspiracy to commit rape with the deceased Lakki and to commit decoity in the house of the deceased Naveen. (ii) That in pursuance of that unlawful assembly, all the five accused persons, named above, reached the house of the deceased Naveen and thereafter, after climbing over the wall of the house of the deceased Naveen they all reached on the roof and from where they saw that the deceased Naveen, deceased Lakki and deceased Sippu were sleeping on the double bed in the bed room. (iii) That all the above mentioned five accused persons sat on the roof of the house of the-deceased Naveen for some time and thereafter, first three accused persons, namely, Vedia (absconder), Shivlal and Laliya Doom (accused appellant) came down from the roof and entered in the bed room where deceased Naveen, deceased Lakki and deceased Sippu were sleeping on the double bed. (iv) That thereafter, the accused Vedia (absconder) and accused appellants Shivlal and Laliya Doom committed rape one by one with the deceased Lakki at dagger point. (v) That the accused Vedia (absconder) caused the murder of the deceased Sippu. (vi) That the accused appellant Laliya Doom caused the murder of the deceased Lakki. (vii) That the accused appellant Shivlal caused the murder of the deceased Naveen. (viii) That the approver PW1 Lalchand and the accused appellant Liluram @ Gallu first saw all the happening which took place in the bed room of the deceased Naveen from the roof and then they also came down from the roof and entered in the bed room of the deceased Naveen and they also helped the accused Vedia (absconder) and accused appellants Shivlal and Laliya Doom in causing the above murders. (ix) That the five accused persons, named above, were involved in the above crime and after committing the offence, they all ran away. 136. In view of the above, the findings recorded by the learned Addl.Sessions Judge (Fast Track) placing reliance on the testimony of the approver PW1 Lalchand that all the five accused persons, namely, Vedia (absconder), Shivlal, Laliya Doom, Liluram @ Gallu (present accused appellants) and the approver PW1 Lalchand made an unlawful assembly for committing rape with the deceased Lakki and with the motive of decoity and in pursuance thereof, they first entered in the house of the deceased Naveen where three accused persons, namely, Vedia (absconder), Shivlal and Laliya Doom (present accused appellants) committed rape one by one with the deceased Lakki and made decoity and the accused Vedia (absconder) caused the murder of child deceased Sippu, the accused appellant Laliya Doom caused the murder of deceased Lakki and the accused appellant Shivlal caused the murder of deceased Naveen and the approver PW1 Lalchand and the accused appellant Liluram @ Gallu first saw the occurrence taking place in the bed room of the deceased Naveen from the room and then, they came down from the roof and entered in the bed room of the deceased Naveen and they also supported the accused Vedia (absconder), Laliya Doom and Shivlal (accused appellants) in causing the above murders, decoity etc., are liable to be confirmed. These findings cannot be said to be perverse or erroneous. It also cannot be said that these findings suffer from basic infirmities and based on no material or evidence.137. For the reasons stated above, all contentions raised by the learned counsel for the accused appellants stand rejected and no interference is called for with the findings of conviction recorded by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar against the accused appellants through the impugned judgment dated 18.6.2003. On point of death sentence.138. It may be stated here that the learned Addl. Sessions Judge (Fast Track) through impugned order of sentence dated 21.6.2003 has awarded death sentence for the offence under section 302 Indian Penal Code to the following two accused appellants: (1) Laliya Doom (2) Shivlal 139. On point of death sentence.138. It may be stated here that the learned Addl. Sessions Judge (Fast Track) through impugned order of sentence dated 21.6.2003 has awarded death sentence for the offence under section 302 Indian Penal Code to the following two accused appellants: (1) Laliya Doom (2) Shivlal 139. The learned counsel appearing for both the accused appellants have argued that the present case cannot be regarded as rarest of rare case where death sentence can be imposed and therefore, looking to the age of the accused appellants and other mitigating circumstances, awarding of death sentence cannot be justified.140. To appreciate the above contention, law laid down by the Hon'ble Supreme Court from time to time on point of death sentence has to be kept in mind.141. In the leading case of Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ) , the Hon'ble Supreme Court was called upon to decide the constitutional validity of death sentence. The Constitution Bench, by a majority of 4:1 upheld the validity of capital sentence and held that only in exceptional and rarest of rare cases, death sentence can be imposed. The Hon'ble Supreme Court laid down certain guidelines for rarest of rare cases, where death sentence can be imposed. The Hon'ble Supreme Court laid down certain principles which were explained in a subsequent decision in the case of Machi Singh v. State of Punjab ( AIR 1983 SC 957 ) , which may be summarised as under : (i) That the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'; (iii) That life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv) That a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 142. The absence of any defined principles except a variorum of rulings may stultify sentencing law and denude it from decisional precision. To say that the discretion is guided by "well recognised" principles shifts the issue to what those recognised rules are. The need for well recognised principles to govern the discretion to award death sentence is so interlaced with fair procedure that unregulated power may even militate against Article 21 of the Constitution as expounded in Maneka Gandhi v. Union of India ( AIR 1978 SC 597 ) . Judicial absolutism or adhocism is anathema in our constitutional scheme.143. No hard and fast rule can be laid down as to when capital punishment would be awarded to the offender and when the offender should be viewed leniently and lesser sentence of imprisonment for life should be imposed. Various factors have to be considered by the court in exercising the power in the light of the facts and circumstances of the case.144. Before proceeding further, it may be stated here that the present case is not only of murder or murders, but a case coupled with gang rape. Cases where rape and murder was committed and death sentence was confirmed by the Hon'ble Supreme Court145. In Dhananjoy Chatterjee @ Dhana v. State of W.B. ( (1994) 2 SCC 220 ) where rape with a young girl of about 18 years of age was committed by a security guard of building and thereafter, she was murdered and the trial court awarded death sentence and on appeal, the same was confirmed by the High Court and on appeal, the Hon'ble Supreme Court upheld the death sentence holding that it was a case of "rarest of the rare".146. In Laxman Naik v. State of Orissa ( AIR 1995 SC 1387 ) , where the accused committed rape on his brother's daughter aged 7 and then killed her and it was held by the Hon'ble Supreme Court that it was a cold blooded and brutal crime and such act would fall in the category of rarest of the rare case attracting no punishment other than the capital punishment.147. In Kamta Tiwari v. State of M.P. ( AIR 1996 SC 2800 ) , where the accused committed rape on seven years old girl and thereafter strangulated her to death and in such circumstances, the Hon'ble Supreme Court came to the conclusion that the case falls within the category of rarest of rare cases and in that case, death sentence was confirmed.148. In Molai and anr. v. State of M.P. ( (1999) 9 SCC 581 ) , where gang rape and murder of 16 years old girl was committed and thereafter, she was strangulated and stabbed and her dead body was thrown in septic tank and it was held by the Hon'ble Supreme Court that in such circumstances death sentence was the only proper punishment.149. If the above four cases of the Hon'ble Supreme Court are viewed in broad perspective, the present case still stands on higher footing than the above mentioned cases. In the present case, three accused persons, namely, accused Vedia (absconder) and accused appellants Laliya Doom and Shivlal first committed rape with the deceased Lakki and then, they not only murdered her, but also murdered her husband deceased Naveen and child deceased Sippu in an extremely brutal grotesque, diabolical, revolting and dastardly manner. The offence committed by them was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by brutal, gruesome and merciless murders and affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case and apart from this, no resistance was offered by the deceased Lakki, deceased Naveen and deceased Sippu and all the same they were brutally murdered and such act would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment.150. There are no extenuating or mitigating circumstances whatsoever in the case and apart from this, no resistance was offered by the deceased Lakki, deceased Naveen and deceased Sippu and all the same they were brutally murdered and such act would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment.150. Apart from this, the latest judgment of the Hon'ble Supreme Court in ( State of Rajasthan v. Kheraj Ram (JT 2003 (7) SC 419) (decided on 22.8.2003) may be mentioned here as in that case State appeal filed by the State of Rajasthan against acquittal of accused made by this Court was allowed and the acquittal of the accused Kheraj Ram was set aside and the death sentence passed by the learned trial Judge on him was confirmed by the Hon'ble Supreme Court. In that case, accused Kheraj Ram killed his wife, his two small daughters and brother-in-law on 10.10.1992 and thus, Hon'ble Supreme Court came to the conclusion that case falls under the category of rarest of rare case where death sentence can be awarded. The present ease is more extreme than that case as the present case is a case of gang rape coupled with three murders. From this point of view also, the present case falls in the category of rarest of rare cases which calls for no punishment other than the capital punishment.151. The learned counsel for the accused appellants Laliya Doom and Shivlal have vehemently argued that since both these accused appellants against whom death sentence was awarded are of very young age and furthermore, they are not habitual offenders and they entered the house of the deceased Naveen with no intention to cause murder, therefore, in such circumstances, death sentence cannot be regarded as proper sentence.152. No doubt in the following cases, capital sentence upon a conviction under section 302 Indian Penal Code was not awarded: (i) The offender being under eighteen years of age. (ii) There having been no intention to commit murder, the offence falling under the fourth clause of section 300 Indian Penal Code. (iii) The murder, though intentional, having been committed without premeditation and in the heat of passion, without special brutality. (ii) There having been no intention to commit murder, the offence falling under the fourth clause of section 300 Indian Penal Code. (iii) The murder, though intentional, having been committed without premeditation and in the heat of passion, without special brutality. (iv) The murder having been committed upon grave provocation, the provocation need being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder. (v) Reasonable doubt as to the sanity of the offender at the time of committing murder, actual insanity not being proved. (vi) Where murder has been committed by more than one person and it appears that the offender acted under the instigation of another, and did not take a principal part in committing the murder. 153. Apart from that, there are other mitigating circumstances where in place of death sentence, life imprisonment could be awarded and the same reads as follows: (i) That the offence was committed under the influence of extreme mental or emotional disturbance; (ii) The age of accused. If the accused is young or old, he shall not be sentenced to death; (iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (iv) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (iii) and (iv) above; (v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; (vi) That the accused acted under the duress or domination of another person; (vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 154. In our considered opinion, the mitigating circumstances indicated above are undoubtedly relevant and important circumstances and must be given great weight in the determination of sentence and factors like extreme youth or very old and infirm age of the accused can be said to be germane and relevant considerations, but in the present case, the accused appellants Laliya Doom and Shivlal and accused absconder Vedia caused brutal and ghastly murder of deceased Lakki, after gang raping her, her child deceased Sippu about 5 year old and her husband deceased Naveen. Brutality of act of Laliya Doom and Shivlal in killing Lakki and Naveen can be gathered from number of incised wounds inflicted on the deceased with repeated severity at the vital parts of their bodies between neck and abdomen. Not satisfied with lust and assault, the deceased was sought to be strangulated by use of electric wire. Had so the extreme cruelty of mind is betrayed in attempt to wipe out evidence of their identity by the accused to conceal their crime of lesser severity. Not only this in the process entire family of husband wife and minor child of tender age was wiped out without any notice or enmity or provocation which could provide semblance of justification. Merely because the two accused viz Laliya Doom and Shivlal are of young age in their twenties is not enough to out- balance the above circumstances which bring the case into category of rarest of rare where death penalty is the only punishment justified. Such persons if let loose are likely to danger to society. The fact that Liluram the third accused has only been awarded life sentence also cannot be a factor that can be used in mitigating the case of Laliya Doom and Shivlal, Liluram has been found not to have either actually committed rape nor murder.155. Thus, after going through the balance sheet of aggravating and mitigating circumstances of the present case we are of the considered opinion that the cases of Laliya Doom and Shivlal is of extreme depravity and brutally gruesome nature to make it one of rarest of rare case and aggravating circumstances over-power the mitigating circumstances. Thus, after going through the balance sheet of aggravating and mitigating circumstances of the present case we are of the considered opinion that the cases of Laliya Doom and Shivlal is of extreme depravity and brutally gruesome nature to make it one of rarest of rare case and aggravating circumstances over-power the mitigating circumstances. Therefore, death sentence is the only appropriate punishment to be awarded to the accused appellants Shivlal and Laliya Doom.156.The argument that the accused appellants entered the house of the deceased Naveen with no intention to murder deceased Lakki, deceased Naveen and deceased Sippu would not be helpful to the accused appellants as when they entered the house of deceased Naveen, they were armed with weapons and when the accused Vedia (absconder) started committing rape with the deceased Lakki, her child deceased Sippu awoke and the accused Vedia (absconder) killed deceased Sippu by giving knife blows and after that, the remaining two deceased Lakki and Naveen were also killed by the accused appellants Laliya Doom and Shivlal and in such circumstances, to say that there was no intention on the part of the accused persons to commit murder cannot be accepted. This is also corroborated from the fact that they came armed with to meet any instance in furtherance of their object.157. The argument that one of the main accused, namely, accused Vedia (absconder) is absconding would not be helpful to the accused appellants Laliya Doom and Shivlal to convert the death sentence into life imprisonment as the act of these two accused appellants is in all respect similar with that of absconding accused Vedia. Therefore, it cannot be said that the absconding accused Vedia was the only main accused in the present case.158. Thus, for the reasons stated above, the learned Addl. Sessions Judge (Fast Track) has not committed any error or illegality in awarding death sentence to the accused appellants Shivlal and Laliya Doom through impugned order of sentence dated 21.6.2003 as the present case squarely falls in the category of one of the rarest of rare case which calls for no other punishment than the capital punishment and therefore, we accordingly, confirm the same.159. So far as the authorities relied upon by the learned counsel for the accused appellants in Ram Pal v. State of UP (2003 AIR SCW 3792) , Kumudi Lal v. State of UP (1999 AIR SCW 1325) , A. Devendran V. State of Tamil Nadu (1998 AIR SCW 285) and Om Prakash V/s State of Haryana (1999 Cr.L.J. (SC) 2044) are concerned, all relate to lay down the young age of accused is a relevant mitigating circumstance in awarding punishment.160. The facts of the present case stand distinguished from the facts of the above cases and therefore, simply because accused appellants Shivlal and Laliya Doom are of very-young age, therefore, death sentence should not have been awarded to them, cannot be accepted. No doubt young age of the accused can be. a mitigating circumstance, but is not a defence in absolute against award of death sentence. It depends on facts and circumstances of each case to be determined by balance sheet of mitigating and aggravating circumstances. Moreover, in the present case, the two accused recommended for death sentence cannot be said to be of very tender age. They are grown up adult youth. In the present case, mere young age of two accused cannot be regarded as mitigating circumstance to outweigh the weight of extreme depravity and brutality of crime in gang raping a pregnant woman with a foetus of 12 to 14 months, who even did not offer any resistance killing her husband and helpless child, who too did not at all resisted the accused in their distardly act of committing rape and decoity. In the result, the reference being D.B. Criminal Murder Reference No.1/2003 made by the learned Addl.Sessions Judge (Fast Track), Sri Ganganagar through his letter dated 23.6.2003 under section 366(1) Criminal Procedure Code is accepted and death sentence passed by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar through order of sentence dated 21.6.2003 against the following two accused for the offence under section 302 Indian Penal Code is confirmed:- (1) Lalchand @ Laliya @ Laliya Doom (2) Shivlal @ Shivla @ Shiva All the three appeals filed by the accused appellants are dismissed after confirming judgment dated 18.6.2003 and order of sentence dated 21.6.2003 passed by the learned Addl. Sessions Judge (Fast Track), Sri Ganganagar.Order accordingly. *******