Judgment N. N. MATHUR, J. ( 1 ) IT was by a midnight blitz that two sleeping sons of principal witness P. W. 6 Mst. Jhamku in her dwelling house were axed to death allegedly by the appellant Neema Ram, the third and the youngest son. The learned additional Sessions Judge (Fast Track)No. 2, Jodhpur by impugned judgment dated 25. 1. 2006 having found the charge under Section 302 I. P. C. proved and considering the rarest of rare cases has made instant reference for confirmation of the death sentence. He has also inflicted fine of Rs. 2000/- and in default of payment to further undergo one month simple imprisonment. ( 2 ) THE picture which has been projected from the deposition of principal witness P. W. 6 Mst. Jhamku is to the effect that in the intervening night of 24th and 25th July, 2005 at about 3:00 A. M. she woke up sensing something wrong and rushed towards the "bada". She found appellant Neema Ram standing with the "kunt" (a sharp edged weapon) in hand. The wife of Bhaga Ram namely P. W. 8 Mst. Dhanki was weeping. Her husband Bhaga ram was lying injured. He had sustained injuries on the head and other parts of body. The other son Pappa Ram who was sleeping in the compound was also done to death by the appellant Neema Ram. There were bleeding injuries on various parts of his body. The appellant ran away from the house immediately. Their hue and cry attracted the villagers. On receiving a telephonic information police arrived on the spot in the morning. A written information report Ex. P1-2 was given to the- police on the spot by P. W. 4 Gokal ram stating inter alia that in village mortuka, P. W. 6 Mst. Jhamku a widow of budha Ram lived with her married son bhaga Ram and another son Pappa Ram. The. third son Neema Ram was in a private job at Goa. He had arrived in the village about 15 days prior to the date of incident. Thus, at the time of incident all the three brothers stayed in their house along with their mother P. W. 6 Mst jhamku. On the fateful day at about 3:30 a. M. , P. W. 11 Bija Ram and P. W. 7 Narayan visited his house and took him to the house of Bhaga Ram. Thus, at the time of incident all the three brothers stayed in their house along with their mother P. W. 6 Mst jhamku. On the fateful day at about 3:30 a. M. , P. W. 11 Bija Ram and P. W. 7 Narayan visited his house and took him to the house of Bhaga Ram. He found the dead body of Pappa Ram lying on the cot. There were injuries of sharp-edged weapon 6n various parts of his body. Bhaga Ram was lying injured. He was taken to the hospital for treatment. On inquiry it was disclosed by Mst. Jhamku that her son appellant Neema Ram killed Pappa Ram by causing "kunt" injuries. He also inflicted injuries to Bhaga Ram. The appellant fled away from the place of incident. On this information, a case was registered for offence under Sections 307 and 302 I. P. C. at Police Station Luni, District, Jodhpur. The police prepared inquest report and the site plan. The appellant was arrested on the same day at 3:30 P. M. vide Ex. P40. In pursuance of the information given by him a blood-stained "kunt" was recovered on the next day i. e. on 25th July, 2005. Bhaga Ram died in the hospital on 2. 8. 2005. The autopsy of the dead body of pappa Ram was conducted by P. W. 10 Dr. Jagdish Jugtawat. He noted the following injuries on the body of Pappa Ram vide ex. P20:- (1) Incised wound 11 cm x 1 cm x bone deep on Lt. side of forehead with fracture of forehead bone. (2) Incised wound 8 cm x 2 cm x muscle deep on Lt. side efface and pinna. (3) Incised wound 3 cm x 1 cm x muscle deep on Lt. cheek. (4) Incised wound 4 cm x 1 cm on lt side of neck 1/3 laterally with cutting the muscles and vessels (Jugular vessels ). (5) Incised wound 4 cm x 1 cm x muscle deep on Lt. side neck 1/3 Lat. With cutting the jugular vessels. (6) Incised wound 11 cm x 1 cm x muscle deep on chest below clavicle. In his opinion the cause of death was shock and haemorrhage due to multiple injuries. ( 3 ) P. W. 13 Dr. V. K. Malhotra conducted the autopsy of the dead body of bhaga Ram and noticed the following injuries vide Ex. (6) Incised wound 11 cm x 1 cm x muscle deep on chest below clavicle. In his opinion the cause of death was shock and haemorrhage due to multiple injuries. ( 3 ) P. W. 13 Dr. V. K. Malhotra conducted the autopsy of the dead body of bhaga Ram and noticed the following injuries vide Ex. P. 21:- (1) Stitched wound 12 cm long on rt. front to parietal region. (2) Stitched wound 13. 5 cm long on Rt. fronto parietal and temporal region. (3) Stitched wound 8. 5 cm long on lt fronto parietal region. (4) Abrasion 0. 5 cm x 0. 3 cm on rt. side of forehead. (5) Tracheartomy present over neck. (6) Stitched wound 3 cm long at back of Lt. ring and little finger dorsally. (7) Abrasion 1. /5 cm x 0. 5 cm on rt. leg 1/3 ant. (8) Abrasion 0. 5 cm x 0. 5 cm on Lt middle toe dorsally. (9) Abrasion 2 cm x 1 cm on back of Rt. side of chest 1/3. (10) Abrasion 1. 5 cm x 1 cm on Rt. elbow post. (11) Abrasion 1 cm x 1 cm near injury No. 10. In his opinion the cause of death was head injury. ( 4 ) AFTER usual investigation police laid charge-sheet against the appellant for offence under Section 302 I. P. C. The appellant denied the charges levelled against him and claimed trial. The prosecution adduced oral and documentary evidence to bring home its case. The appellant denied the correctness of the prosecution evidence appearing against him. In his statement under Section 313 of the Code of Criminal Procedure he pleaded innocent. He stated that there was a land dispute with his uncle Khima ram. He has been falsely implicated by misleading his mother. The trial court discarded the evidence of recovery but relying on the testimony of P. W. 6 Mst. Jhamku and P. W. 8 Mst. Dhanki corroborated by the medical and other evidence found the prosecution case proved and as such convicted and sentenced the appellant in the manner stated above. ( 5 ) WE have heard Mr. Kalu Ram bhati, learned Amicus Curiae for the appellant and the learned Public Prosecutor and carefully scrutinized the evidence on record. Jhamku and P. W. 8 Mst. Dhanki corroborated by the medical and other evidence found the prosecution case proved and as such convicted and sentenced the appellant in the manner stated above. ( 5 ) WE have heard Mr. Kalu Ram bhati, learned Amicus Curiae for the appellant and the learned Public Prosecutor and carefully scrutinized the evidence on record. ( 6 ) CHALLENGING the conviction of the appellant, it is submitted by the learned counsel that a bare reading of the statements of P. W. 6 Mst. Jhamku and p. W. 8 Mst. Dhanki shows that they are not the witness of the occurrence. On their own saying, they did not witness the incident. The evidence of recovery has been discarded by the trial court, as such there is no evidence worth the name to connect the appellant with the alleged crime. On the other hand it is submitted by the learned Public Prosecutor that both the witnesses are most natural and their testimony positively indicates the implication of the appellant in the crime. The learned Public Prosecutor has also challenged the finding of the trial court with respect to the incriminating evidence of recovery of weapon of offence. It is submitted that the trial court has wrongly discarded the evidence or recovery of weapon of offence i. e. kunt. ( 7 ) THE testimony of P. W. 6 Mst. Jhamku and P. W. 8 Mst. Dhanki being crucial, we have carefully scrutinized and tested their testimony. P. W. 6 Mst. Jhamku is the mother of both the deceased and the appellant. It is unfortunate that she lost her husband sometime back of the incident and out of the three surviving sons, two were done to death and the third sentenced to death. What a curse for her. Be that as it may, she deposed that the appellant Neema Ram was employed in a private job at Goa. He visited the village about 15 days back from the date of the incident. All the three sons after taking food went to bed on the fateful day. She was sleeping inside the house along with the appellant Neema ram. Pappa Ram was sleeping in the compound of the house. Bhaga Ram was sleeping with. his wife in the courtyard. He visited the village about 15 days back from the date of the incident. All the three sons after taking food went to bed on the fateful day. She was sleeping inside the house along with the appellant Neema ram. Pappa Ram was sleeping in the compound of the house. Bhaga Ram was sleeping with. his wife in the courtyard. At about 3:00 A. M. she woke up sensing something wrong and rushed towards the courtyard and found the appellant in front of her carrying a kunt in his hand and the wife of Bhaga Ram namely Mst dhanki was weeping. Bhaga Ram was lying injured and flittering. There were number of injuries on his body. The other son Pappa Ram who was sleeping in the compound was lying dead. There were injuries on his body. The mattresses were stained with blood. The appellant ran away from the house immediately. Her cries attracted the villagers. An information of the incident was given to the police. Bhaga Ram was taken to the hospital. In the cross-examination she admitted that Bhaga Ram was sleeping in the courtyard along with his wife. She also admitted that there is no straight route from the house to the courtyard. For going to the courtyard one is required to come out of the house and take a round. She also stated that Pappa Ram was sleeping at a distance of about 10 ft. She further stated that Pappa Ram was killed first and subsequently Bhaga Ram. She also admitted that the wife of Bhaga ram did not disclose to her the name of the assailant. ( 8 ) P. W. 8 Mst. Dhanki is the wife of deceased Bha. ga Ram. She stated that the appellant, who was in a private job at goa had arrived in the village about 15 days back. All the three brothers stayed together. On the fateful day she was sleeping with her deceased husband bhaga Ram in the courtyard on the common cot. Her mother-in-law P. W. 6 Mst. Jhamku, the appellant Neema Ram and deceased Pappa Ram were sleeping in the compound of the house. In the night at about 3:00 A. M. her husband abruptly slumped down of the cot. The appellant was carrying a kunt in his hand. He ran away with kunt in hand. Her husband had sustained injuries on his body. Jhamku, the appellant Neema Ram and deceased Pappa Ram were sleeping in the compound of the house. In the night at about 3:00 A. M. her husband abruptly slumped down of the cot. The appellant was carrying a kunt in his hand. He ran away with kunt in hand. Her husband had sustained injuries on his body. There was profused bleeding from the injuries. She raised cries which attracted her mother-in-law and others. Her mother-in-law tried to chase the accused Neema ram. She also found the brother-in-law pappa Ram lying dead in the compound. There were injuries on various parts of his body. Her husband was taken to the hospital. She stated that Bhaga Ram and pappa Ram were killed by appellant neema Ram. In the cross-examination she admitted that she was sleeping with her husband on the cot. Her blood-stained clothes were seized by the police. She also admitted that her mother-in-law had inquired the direction in which appellant neema Ram had gone. She denied the suggestion that at the time of incident, she was sleeping with her mother-in-law. ( 9 ) ON reading of statements of both the witnesses it appears that the incident had taken place in the compound and the courtyard of the house. Nobody had seen how the deceased were killed and in what manner and fashion. But from the statements of P. W. 6 Mst. Jhamku and P. W. 8 Mst. Dhanki it emerges that just after the incident the appellant was seen on the spot with the weapon of offence namely kunt. The statements of both the witnesses are natural. P. W. 6 Mst. Jhamku is the mother of the appellant and there is no reason for her to falsely implicate him and screen the actual assailant. We are. therefore, clearly of the view that the testimony of both the witnesses i. e. P. W. 6 mst. Jhamku and P. W. S Mst. Dhanki is quite natural and trustworthy. However. to lend assurance that the ghastly crime was committed by the appellant, we may look to the other corroborative evidence. P. W. 4 Gokal Ram is the uncle of the appellant. He stated that hearing about the unfortunate incident from P. W. 7 Narayan he rushed to the place of incident. He found Pappa Ram dead and Bhaga Ram injured. Neema Ram had ran away. P. W. 4 Gokal Ram is the uncle of the appellant. He stated that hearing about the unfortunate incident from P. W. 7 Narayan he rushed to the place of incident. He found Pappa Ram dead and Bhaga Ram injured. Neema Ram had ran away. He gave information of the incident to the police vide Ex. P12. P. W. 7 Narayan is a neighbour. He stated that he was attracted by the cries of Mst. Jhamku and others. He also stated that number of villagers had assembled at the spot. He went to P. W. 4 Gokal Rarn. This witness did not support the prosecution case. As such he was declared hostile. P. W. 11 Bija Ram is the cousin brother of the deceased and the appellant. He stated that hearing the cries at. about 3:00 A. M. he rushed to the spot. Narayan had also arrived. He found pappa Ram dead. Bhaga Ram had sustained injuries arid he was taken to the hospital. He was told that Neema Ram after killing Pappa Ram by kunt ran away. Thereafter, Narayan went to inform gokal Ram about the incident. Thus, the testimony of two witnesses namely P. W. 6 mst. Jhamku and P. W. 8 Mst. Dhanki finds corroboration from the statements of p. W. 4 Gokal Ram and P. W. 11 Bija Ram and the prompt F. I. R. ( 10 ) COMING to the evidence of recovery, the appellant was arrested vide ex. P14 on 25th July, 2005. While in custody a blood-stained "kunt" was recovered vide Ex. P3 from his possession in pursuance of the information given by him vide ex. P15 in presence of motbirs P. W. 1 brijraj Singh and P. W. 3 Bhera Ram. The kunt was seized and sealed on the spot and packed in packet marked C. P. W. 9 ann Raj Singh is the Investigating Officer. He has stated that the appellant neema Ram got the blood-stained "kunt" recovered concealed in a bush in the western side of his field. He prepared the site plan of the place of recovery Ex. P4. Both the motbirs have not supported the prosecution case and as such they have been declared hostile. He has stated that the appellant neema Ram got the blood-stained "kunt" recovered concealed in a bush in the western side of his field. He prepared the site plan of the place of recovery Ex. P4. Both the motbirs have not supported the prosecution case and as such they have been declared hostile. P. W. 12 Hari Singh, incharge of the Malkhana of Police Station, Luni deposed that the sealed packet containing articles in F. I. R. Case No. 81/ 2005, which included "kunt" were deposited by the Incharge of the Police Station p. W. 9 Ann Raj Singh. He made an entry of the said articles in the Malkhana Register at S. No. 152. The packets were deposited on 25. 8. 2005. It may be stated that in the Malkhana Register at S. No. 152 the date of entry of the articles at Column No. 6 has been shown as 24. 7. 2005. The trial court rejected the evidence of recovery having found that while the kunt was recovered on 25th July, 2005 vide Ex. P3, it was shown to have been received in the Malkhana on 24th July i. e. a day before. ( 11 ) WE have carefully scrutinized the evidence of P. W. 12 Hari Singh, P. W. 9 ann Raj Singh and the copy of the relevant extract of Malkhana Register Ex. D1. P. W. 12 Hari Singh had admitted in the cross-examination that inadvertently he did not indicate any remark in Column no. 6. He had wrongly made entry of receipt of kunt/ on 24th July. 2005. It appears that there is inadvertent mistake by P. W. 12 Hari Singh with respect to date of entry of the kunt in the Malkhana register. The articles were given to P. W. 2 girdhari Singh for delivery in the Forensic Science Laboratory after obtaining the requisite certificates from the Office of the Superintendent of Police, Jodhpur. P. W. 2 Girdhari Singh has stated that on 25. 8. 2005 he received the articles from hari Singh in sealed condition for delivery in the Forensic Science Laboratory at Jodhpur. On the same day he visited the Office of Superintendent of Police, jodhpur and after obtaining the requisite letter Ex. PS from P. W. 5 Bhawani Singh he deposited the articles in the Office of forensic Science Laboratory at: Jodhpur and obtained the receipt Ex. P9. On the same day he visited the Office of Superintendent of Police, jodhpur and after obtaining the requisite letter Ex. PS from P. W. 5 Bhawani Singh he deposited the articles in the Office of forensic Science Laboratory at: Jodhpur and obtained the receipt Ex. P9. He also stated that the articles remained sealed and intact during his possession. The fsl report Ex. P22 shows that five packets were received in sealed condition, which tallied with the specimen seal impression forwarded. As per the FSL report the kuntwas stained with human blood. We are of the view that the trial court committed error in discarding the evidence of recovery. In statement under Section 313 of the Code of Criminal procedure the appellant has not given any Explanation as to the recovery of blood stained kuntfrom his possession. Thus, the evidence of recovery as against the appellant is of conclusive nature. Thus, taking into account the ocular version of p. W. 6 Mst. Jhamku and P. W. 8 Mst. Dhanki to the effect that the appellant was found standing carrying blood-stained kunt in his hand just at the moment when Bhaga Ram was found injured and pappa Ram dead is relevant fact of incriminatory character. In absence of a reasonable explanation, it leads to the inference that it was none else but the appellant, who committed murder of bhaga Ram and Pappa Ram. The conduct of appellant running away. from the place of incident instead of taking care of his brothers and he was apprehended only on the next day of the incident is of great significance. In view of above discussion, we are of the view that prosecution has succeeded in establishing its case beyond any manner of doubt holding the appellant guilty of murder of Bhaga Ram and pappa Ram. The trial court has rightly convicted the appellant on the charge of murder of Bhaga Ram and Pappa Ram and. convicted him of offence under Section 302 I. P. C.- ( 12 ) THIS take us to consider the death penalty awarded by the trial court. It is contended by the learned counsel for the appellant that the case does not fall within the category of rarest of rare cases, which would invite capital punishment. The learned counsel has placed reliance on various decisions of Apex court and this Court viz. Bachittar Singh andanr. It is contended by the learned counsel for the appellant that the case does not fall within the category of rarest of rare cases, which would invite capital punishment. The learned counsel has placed reliance on various decisions of Apex court and this Court viz. Bachittar Singh andanr. v. State of Punjab, Dharmendrasinh v. State of Gujarat, Vashram Narshibhai rajpara v. State of Gujarat, Prakash dhawal v. State of Maharashtra and State of Rajasthan v. Deva Ram. ( 13 ) ON a perusal of the evidence and materials on record, we find that apart from the solitary incident in question, there is no evidence on record either oral or documentary, which would suggest about the misconduct of the appellant in the past. There is also no evidence on record to suggest that the appellant would be a menace and threat to the harmonious and peace coexistence of the society. The instant case is very close decision of the Apex Court in prakash Dhawal Khairnar (supra), which has been referred to in another decision of the Apex Court in Bachittar Singh v. State of Punjab (supra ). In that case also the accused done to death his own brother, brothers wife and children out of a land dispute. In the instant case the prosecution has not been able to show any motive behind the murder of the two brothers by the appellant. On the contrary, the evidence is that the relations between the three brothers were cordial. Thus, no doubt the crime was heinous and brutal but at the same time it would be difficult to hold that it falls in the category of rarest of rare cases. Viewed from the aforesaid perspective we find that the appellant must be given a chance to repent for what he has done is neither approved by the law nor by the society and be reformed or rehabilitated and become good and law abiding citizen of the society. ( 14 ) CONSEQUENTLY, the death reference made by the trial court vide judgment dated 25/1/2006 is rejected. The jail appeal is partly allowed. While maintaining the conviction under Section 302 i. P. C. , the sentence of death awarded to appellant Neema Ram is commuted to imprisonment for life. The direction of payment of fine of Rs. 2000. 00 remains intact. The appellant is in Jail, he shall undergo the remaining part of the sentence. The jail appeal is partly allowed. While maintaining the conviction under Section 302 i. P. C. , the sentence of death awarded to appellant Neema Ram is commuted to imprisonment for life. The direction of payment of fine of Rs. 2000. 00 remains intact. The appellant is in Jail, he shall undergo the remaining part of the sentence. The copy of the order be sent to the appellant in Jail. Appeal partly allowed.