Judgment :- (Prayer: This appeal has been filed against the judgment dated 21.4.2006 passed in S.C.No.43/2006 on the file of the Additional District and Sessions Court (FTC.No.II), Ranipet.) A.C. Arumugaperumal Adityan, J The appellants are facing death sentence in view of the Judgement in S.C.No.43/2006 on the file of the Additional District Sessions Court (FTC.No.II), Ranipet, Vellore District. 2. The short facts which are relevant for the purpose of deciding this referred trial are as follows: On 6.6.1995 at about 10.00 p.m., P.W.1 along with his sister and two others while sleeping in the terrace of the house bearing Door No.371, Second Rail Road, Tamil Nadu Housing Board colony, Walajapet. On 6/7.6.1995 at about 1.00 am, on hearing the noise of barking of dog, the sister of P.W.1 instructed P.W.1 to tie the dog. P.W.1 came out of the house and saw a person standing near the gate and on seeing him, P.W.1 enquired that person, why he is standing there? Immediately, the said person(A2) attacked P.W.1 with Iron rod-M.O.1 on his(P.W.1) forehead. P.W.1, who had sustained injury locked the door and shouted for help, along with his sister and his wife. A-2 ran away with other persons and at that time, the neighbors came out of their houses after hearing the commotion. The police man, who is residing near the house of P.W.1 also came out and along with one Mahendran-P.W.9 went around in search of the accused, but the accused could not be secured. P.W.9 and other neighbors noticing no response from the deceased house peeped through the widow and found the deceased and P.W.2, P.W.5 and P.W.6 were lying in the hall. P.W.9 scaled the wall and found the grill gate broke opened. P.W.10, an auto driver, along with one Raja after returning from the service at about 2.30 am found nine to ten persons armed with iron rods and knifes took to their heals near the house of the deceased. P.W.1 noticed one person(A-1) among the said group of persons . Thereafter, P.W.10 went into the house of the deceased and found the injured witnesses, by the time the police also came to the place of occurrence. In the incident, Dr.Mohan Kumar (Veterinarian) was murdered and P.W.2, P.W.5 and P.W.6 were lying in the hall with injuries. P.W.1 noticed one person(A-1) among the said group of persons . Thereafter, P.W.10 went into the house of the deceased and found the injured witnesses, by the time the police also came to the place of occurrence. In the incident, Dr.Mohan Kumar (Veterinarian) was murdered and P.W.2, P.W.5 and P.W.6 were lying in the hall with injuries. P.W.7 on information from the police constable-Gandhi reached the place of occurrence and had sent all the injured to the hospital. P.W.7 had recorded the statement from one Patric Varghese and registered the First Information Report. Ex.P.6 is the statement of one Patric Varghese. Ex.P.7 is the First Information Report. First Information Report was registered on 7.6.1995 at 5.30 am. Piece of cable card wire was found near the deceased and the jewels owned by the wife of the deceased namely P.W.2 was found missing. P.W.1, the injured in the occurrence, was treated at Walajah Government Hospital at 2.50 am by P.W.4, the Doctor, who had issued Ex.P.4-Accident Register for the injuries sustained by P.W.1. P.W.5/Sudhagar was admitted in the said Hospital at 3.50 am on 7.6.1995. The Doctor/P.W.4, who treated P.W.5/Sudhagar and P.W.6/Sakthivel, issued Ex.P.2 and Ex.P.5 wound certificates respectively. On the basis of Ex.P.7-FIR, P.W.14-the Inspector of Police took up the investigation, visited the place of occurrence and prepared observation mahazar-Ex.P.9 and rough sketch-Ex.P.16 and conducted inquest. The autopsy was conducted by P.W.3 at Walajah Government Hospital and Ex.P.1 is the Postmortem Certificate. The Doctor has opined that the death of the deceased was due to strangulation with a rope. P.W.14 after observing the formalities recovered material objects from the scene of occurrence and after his transfer in the year 1997, his successor P.W.15 took up the investigation on 26.2.2005 and he took A-2 on police custody and on his confession statement M.O.1 was recovered under Mahazar -Ex.P.14 and he has also interrogated A-1 and placed him for test identification parade on 20.10.2005. After completing the investigation, he has filed the charge sheet. The case was taken on file by the learned Judicial Magistrate-II, Ranipet. After copies were given to the accused under Section 207 of Cr.P.C., the learned Judicial Magistrate has committed the case to the Court of Sessions under Section 209 of Cr.P.C. 3. Before the learned Sessions Judge, P.W.1 to P.W.15 were examined and Ex.P.1 to Ex.P.25 and M.O.1 and M.O.2 were marked. After copies were given to the accused under Section 207 of Cr.P.C., the learned Judicial Magistrate has committed the case to the Court of Sessions under Section 209 of Cr.P.C. 3. Before the learned Sessions Judge, P.W.1 to P.W.15 were examined and Ex.P.1 to Ex.P.25 and M.O.1 and M.O.2 were marked. When incriminating circumstances were put to the accused both of them denied their complicity in the crime. 4. After going through the oral and documentary evidence, the learned Sessions Judge has held that the charges under Sections 395, 396 and 397 IPC against A-1 and A-2 are proved beyond any reasonable doubt and awarded death sentence under Section 396 IPC and life sentence under Section 395 IPC and seven years rigorous imprisonment under Section 397 IPC and he has further directed that the death sentence should be carried out by hanging under Section 354(5) of Cr.P.C. For confirmation of the death sentence, the learned Sessions Judge has submitted the entire records. Hence, the referred trial has been taken on file by this Court. 5. The point for determination in this referred trial is whether the facts of the case will come under the ambit of "Rarest of rare cases" to warrant conviction and sentence of capital punishment. 6. The Point: There is no eye witness to the crime. Ex.P.6 is the complaint preferred by one V.Patrick Varghese, who was not examined. On the basis of the said complaint P.W.7-Sub-Inspector of Police has registered a case under Cr.No.403/95 under Sections 395, 396 and 397 on 7.6.1995 at 5.30 am. P.W.1 is the neighbour, who at the night of the occurrence, after hearing the barking of dogs came out from his house, was attacked by A2 with iron rod. P.W.1 has identified in the court that the person, who attacked with an iron rod-M.O.1, is A2. P.W.9 is an another neighbour of the deceased who saw the deceased, P.W.2, P.W.5 and P.W.6 lying in the hall of the house of the deceased. Since there was no clue to locate the assailants by the local police, a special team was formed under the head of Mr.S.R.Jangid, IG of Police, North Metropolitan Region, Chennai, who along with his team visited to neighboring states like Karnataka, Andra Pradesh, Madya Predesh, Rajathan, Hariyana etc., in connection with many undetected grave crimes. Since there was no clue to locate the assailants by the local police, a special team was formed under the head of Mr.S.R.Jangid, IG of Police, North Metropolitan Region, Chennai, who along with his team visited to neighboring states like Karnataka, Andra Pradesh, Madya Predesh, Rajathan, Hariyana etc., in connection with many undetected grave crimes. Finally, the Special Team was able to identify the accused that only under the leadership of A1, A2 and A11(absconding accused) a gang have committed the series crime in and around Vellore District. A1 was arrested on 21.9.2005 by the Special Team in another case in connection with Cr.No.352/2004 of Sriperumbatoor Police Station. Under PT warrant, he was produced in this Case and identification parade was conducted on 20.10.2005 and in the identification parade, P.W.10-auto driver, who saw ten person running away form the scene of occurrence at 2.30 am on 7.6.1995, had identified A1 at the Vellore Central prison. A2 was arrested on 26.2.2005 in connection with Cr.No.59/1996 and it was found that his finger print tally with the finger print lifted from the place of occurrence in that case. On PT warrant A2 was brought and produced in this case and on his confession M.O.1-iron rod was recovered under Ex.P.14/mahazar by P.W.15. 7. The learned counsel appearing for the accused/appellants would contend that P.W.10, who had identified A1 in the test identification parade conducted on 20.10.2005 was not examined by P.W.14 at the time of the inquest and that P.W.10 would say that he saw A1 some two years prior to the identification parade at about 2.00 am only at V.C. Mettur, Walajapet and that he identified A1 on 20.10.2005 at Vellore Central Prison before the Judicial Magistrate. According to the counsel for the accused/appellants, P.W.10 had seen A1 at the time of occurrence in front of the house of the deceased, and in the cross-examination P.W.10 has stated that he has seen the accused some two years back near V.C.Mettur. So, the learned counsel for the accused/appellants would contend that the evidence of P.W.10 is not trust worthy. The learned counsel relied on 1983 SCC (Crl) 49(I) (Soni Vs. State of Uttar Pradesh) and contended that A1 was taken under police custody on 21.9.2005 itself, but identification parade was held only on 20.10.2005 in this case. So, the learned counsel for the accused/appellants would contend that the evidence of P.W.10 is not trust worthy. The learned counsel relied on 1983 SCC (Crl) 49(I) (Soni Vs. State of Uttar Pradesh) and contended that A1 was taken under police custody on 21.9.2005 itself, but identification parade was held only on 20.10.2005 in this case. It has been held in the above said case that delay of 42 days in conducting the identification parade was held to be improper. For the same point the learned counsel relied on 2003(1) Crimes 244 (SC) (Nrimal Pasi & Anr. Vs. State of Bihar). In that case, the appellants surrendered on 5.10.1989 and test identification parade was held on 25.11.1989. In that case, the entire evidence of the case relied on identification. Under such circumstance, it was held in the said dictum by the Honourable Apex Court that unexplained delay of one month and twenty days by the prosecution in conducting identification parade is fatal to the prosecution case. In another case reported in 1994 SCC(Cri)144 (Chotey Lal vs. State of U.P), it has been held that test identification parade held 2 months and 20 days after the arrest of the appellant and there was no explanation for the delay given by the prosecution and identifying witnesses making only omnibus statements that they saw the appellant committing dacoity and not associating their memory with any overtact or weapon in the hands of the appellant. It was held that proceedings of identification parade also not inspiring confidence and the gross delay in holding the identification parade made the prosecution case doubtful. 8. Per contra, the learned Additional Public Prosecutor would contend that there was only one identifying witness and there is no fixed rule as regards the period within which test identification parade must be held or number of identifying witness and that it is for the court to decide on the facts and circumstances of the case and evidence on record whether to accept or reject the evidence of identification. When there was failure of the defence to impute any motive for the prosecution for delay in holding the test identification parade nor the defence alleged any irregularity in holding the parade, held on facts, delay of one month in holding the parade was not fatal to the prosecution case. When there was failure of the defence to impute any motive for the prosecution for delay in holding the test identification parade nor the defence alleged any irregularity in holding the parade, held on facts, delay of one month in holding the parade was not fatal to the prosecution case. In respect of this contention, the learned Additional Public Prosecutor relied on the ratio in 2005 SCC (Cri) 75 ( Prmod Mandal Vs. State of Bihar). The relevant observation is as follows: "In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the test identification parade, nor has the defence alleged that there was any irregularity in the holding of the test identification parade. The evidence of the Magistrates conducting the test identification parade as well as the investigating officer has gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the test identification parade, about one month after the occurrence, is not fatal to the case of the prosecution as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the test identification parade or that any irregularity was committed in holding that test identification parade." In the case on hand also there is no motive attributed by the defence against the prosecution for the delay in conducting the identification parade. Both the accused after committed the crime had fled away. A1 was arrested on 21.09.2005 at Agra in Cr.No.352/204 of Sriperumbatur Police Station and on PT warrant, he was brought to Walajahpet and produced before Judicial magistrate and identification parade was conducted on 21.10.2005. The case of the prosecution was not solely depend on the evidence of P.W.10 alone. Under such circumstance, the contention of the learned counsel appearing for A1 that the delay in conducting identification parade for A1 is fatal to the case of the prosecution is not sustainable. 9. The another objection like non-examination of the complainant, namely, brother of P.W.1, the police constable-Gandhi, who had informed the police will not in any way affect the case of the prosecution because injured eye witness have deposed against A1 and A2 after identifying them in the Court. 10. P.W.2 is the wife of the deceased/Dr.Mohan Kumar. 9. The another objection like non-examination of the complainant, namely, brother of P.W.1, the police constable-Gandhi, who had informed the police will not in any way affect the case of the prosecution because injured eye witness have deposed against A1 and A2 after identifying them in the Court. 10. P.W.2 is the wife of the deceased/Dr.Mohan Kumar. According to her, on 6.9.1995 at about 12.00 mid night some 4 or 5 persons broke open the door and entered into the room where she, her husband, and children were sleeping and they assaulted her in the chin and right hand with iron rod and she has identified A1 and A2 as assailants along with other accused(absconding). She has further deposed to the effect that her husband was lying dead with injuries and her two sons were also lying on the floor with injuries and her jewels and cash were also stolen away by the assailants. P.W.1 has identified A2 as the person, who had assaulted him with iron rod near his compound at the time of the occurrence which took place at the house of the deceased/Dr.Mohan Kumar. P.W.5 is one of the son of P.W.2, who had corroborated the evidence of P.W.2 and he has categorically deposed to the effect that at the time of the occurrence A1 and A2 had assaulted him with iron rod and he fell unconscious. P.W.10 has identified A1 in the identification parade. 11. The learned Additional Public Prosecutor relied on 2003 SCC (Cri) 147 (Malkhansingh and others Vs. State of M.P.) and contended that even in the absence of test identification parade, the identification of the accused persons by the witnesses in Court is an substantive piece of evidence. The relevant passage in the above said dictum is as follows: "It is well settled that the substantive evidence is the evidence of identification in the court and the test identification parade provide corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the Courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. in fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making about their identity. The occurrence took place on 4.3.1992 and she deposed in court on 27.8.1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record" In the case on hand also there is no motive attributed to the prosecution witnesses P.W.1, P.W2 and P.W5 to falsely implicate A1 and A2 in the crime. P.W.2 and P.W.5 are the injured witnesses at the hands of A1 and A2. P.W.1 had sustained injury at the hands of A2. The occurrence had taken place inside the house. So, P.W.2 and P.W.5 would have certainly seen the face of the assailants at the time of the occurrence because they have not masked their faces at the time of committing the crime. It is seen from Ex.P.16-rough sketch that there is an street light near the house of P.W.1. So, there is possibility for P.W.1 to identify A1 also at the time of assault. 12. The learned Additional Public Prosecutor would represent that there is a gang of dacoits from Hariyana and Rajasthan states, who have come down all the way to south and committed heinous crime like dacoity and murder for gain and after the arrest of these accused, several undetected cases have been detected and these accused have been convicted in some of the cases. So we are of the considered opinion that the trial court has come to a correct conclusion on the basis of the evidence on P.W.1, P.W.2, P.W.5 and P.W10 that A1 and A2 are guilty under Section 395, 396 & 397 IPC. 13. Now, the next point to be decided is whether the case will come under the clause "Rarest of rare cases" to warrant capital punishment. 14. The learned counsel appearing for the accused would contend that the test to determine whether the case come within the purview of "Rarest of rare cases" has been decided in 1983 SCC (Crl) 681 (Machhi Singh and others Vs. State of Punjab). The guidelines indicated to determine whether the case comes within the ambit of "Rarest of rare cases" in the above dictum are as follows: "When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, i) When the house of the victim is set aflame with the end in view to roast him alive in the house. ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. When the murder is committed for a motive which evinces total depravity and meanness. ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another women on account of infatuation. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c)when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Banchan Singh case: (i) 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 along with the circumstances of the 'crime'. (iii) 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) 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." 15. Under such circumstances, following the guidelines enumerated in the above said dictum of the Honourable Apex Court, we are of the considered view that this case will not come within the ambit of "Rarest of rare cases warranting death penalty" as the accused will not come within the extreme circumstances indicated above. We are of the view that the life imprisonment would meet the ends of Justice. 16. In the result, the appeal is partly allowed and conviction against the accused A1 and A2 under Section 395, 396 & 397 IPC are confirmed, but the sentence under Section 396 IPC alone is modified to that of life imprisonment instead of death sentence. In other respects the trail court judgment is confirmed.