L. C. BHADOO, J. ( 1 ) ACCUSED/appellant-SHYAMLAL was tried by learned Sessions judge, Jagdalpur, in Sessions Trial No. 38/ 2006 for committing the murders of his fa-ther-Raghu Singh, mother Sapdai and sister Suvidha in the intervening night of 22nd/ 23rd September, 2005. After conclusion of the trial, learned Sessions Judge convicted the accused/appellant for each murder separately under Section 302 of the I. P. C. and sentenced him with extreme penalty of death sentence. ( 2 ) LEARNED Sessions Judge has submitted the proceedings for confirmation of death sentence under Section 366 of the Cr. P. C. and the same has been registered in this court as Death Reference No. 1/2006. At the same time, accused Shyamlal has also preferred an appeal under Section 374 (2) of the Cr. P. C. , through the Superintendent, central Jail, Jagdalpur, questioning the legality and correctness of the judgment of conviction and order of sentence. Same has been registered as Criminal Appeal No. 626/ 2006. Therefore, the criminal appeal as well as death reference are being disposed of by this common judgment. ( 3 ) WE have heard Dr. N. K. Shukla, learned Sr. Advocate with Ku. Reetu Mishra, counsel for the accused/appellant in Criminal Appeal No. 626/2006 and Mr. G. D. Vaswani, learned Additional Public Prosecutor with Shri Akhil Mishra, Panel Lawyer for the State. ( 4 ) THE case of the prosecution, in brief, was that in the intervening night of 22nd/ 23rd September, 2005 after taking their meals, deceased Raghu Singh, his wife sapdai, daughter Suvidha and the accused, who is also son of Raghu Singh, were sleeping at one place, whereas PW/2 Sanmati, who is the wife of accused along with her children was sleeping in the same house at other place. At about 12. 00 in the mid-night sanmati heard the sound on which she woke up, as the door of the house was closed, she peeped through a hole where her in-laws and accused were sleeping and saw that her husband i. e. present accused/appellant shyamlal was attacking his father, mother and sister with a pestle. When she raised screams, accused ran after her, somehow she escaped and reached the adjacent house of Hirajan and Thadguram. She informed them that her husband was attacking her father-in-law, mother-in-law and sister-in-law with a pestle. When she raised screams, accused ran after her, somehow she escaped and reached the adjacent house of Hirajan and Thadguram. She informed them that her husband was attacking her father-in-law, mother-in-law and sister-in-law with a pestle. On hearing this, they immediately came to the house of accused and saw that accused was standing in front of the house holding pestle in his hand. Pestle was snatched by PW-3 Hirajan. The accused made extra-judicial confession before hirajan that he has murdered his father, mother and sister and thereafter accused ran away. They immediately informed the villagers, even village Kotwar Azan Das and doctor were also called and they found that raghu Singh and Ku. Suvidha were already dead, however, Sapdai was breathing, therefore, some treatment was given to her. In the morning, she was taken to the Primary health Centre, Makdi where she breathe last. Merg intimations (Ex. P/35, P/36 and P/ 37) regarding death of Raghu Singh, Ku. Suvidha and Smt. Sapdai were given by thadguram to Police Out-post Makdi and in turn merg intimations were given to Police Station, Kondagaon where first Information Report (Ex. P/34) was registered by pw/11 Shri A. K. Dewangan, Station House officer, Police Station, Kondagaon, who after giving notices (Ex. P/1 and P/2) to the panchas, prepared the inquest report (Ex. P/4) of the body of Raghu Singh and of the body of Ku. Suvidha Ex. P/5. He seized the pestle under Ex. P/3 on being produced by hirajan and on the one corner of pestle there was iron loop. He also took into possession the plain soil and bloodstained soil from the places of occurrence where Raghu Singh, suvidha and Sapdai were attacked. One plastic mat green and pink in colour, two beddings stained with blood were also seized from the place of occurrence under Ex. P/ 6. Under seizure memo (Ex. P/7) one chimney was taken into possession. Lungi of the accused stained with blood was seized under Ex. P/8. Panchnama Ex. P/10 regarding seizure of lungi of the accused was also prepared. Bodies of Raghu Singh and Ku. Suvidha were sent for post-mortem examination to the Primary Health Centre, anantpur (Makdi) where Dr. Ravindra Netarn (PW/7) conducted the post-mortem and prepared the post-mortem report (Ex. P/15) in respect of deceased Raghu Singh and report (Ex. P/16) in respect of Ku. Suvidha. P/10 regarding seizure of lungi of the accused was also prepared. Bodies of Raghu Singh and Ku. Suvidha were sent for post-mortem examination to the Primary Health Centre, anantpur (Makdi) where Dr. Ravindra Netarn (PW/7) conducted the post-mortem and prepared the post-mortem report (Ex. P/15) in respect of deceased Raghu Singh and report (Ex. P/16) in respect of Ku. Suvidha. Postmortem on the body of Sapdai was also conducted by Dr. Ravindra Netam (PW/7), who prepared the post-mortem report (Ex. P/17 ). After giving notice (Ex. P/22) to the Panchas, inquest report (Ex. P/23) of the body of sapdai was prepared. Site plan (Ex. P/27)of the place of occurrence was prepared. Clothes of the deceased were seized under ex. P/30. Banshidhar Dehari, Patwari had also prepared the site plan (Ex. P/32) of the place of occurrence. ( 5 ) AFTER completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Kondagaon, who in turn committed the case to the Sessions judge, Jagdalpur for trial. ( 6 ) THE prosecution in order to establish the charges against accused examined seventeen witnesses. Statement of the accused was recorded under Section 313 of the Cr. P. C. by learned Sessions Judge in which the accused either denied the material appearing against him or pleaded innocence and stated that witnesses are liars and he has been falsely implicated in the crime. ( 7 ) LEARNED Sessions Judge after hearing the arguments of learned counsel for the accused, who was appointed by the District legal Aid Committee, and Public Prosecutor, convicted the accused for each of the murder and sentenced him with extreme penalty of death. ( 8 ) LEARNED counsel for the appellant has not disputed the fact of homicidal death of raghu Singh, Sapdai and Ku. Suvidha. Apart from that, PW/2 Sanmati, wife of the accused, who was sleeping along with her children in the same house in the fateful night, has stated that at about 12. 00 in the mid-night she heard the sound and woke up, she saw that the accused was attacking his father, mother and sister with a pestle. When she raised screams, accused ran after her, somehow she escaped and reached to the house of Hirajan and Thadguram and informed them about the incident on which they came on the spot. 00 in the mid-night she heard the sound and woke up, she saw that the accused was attacking his father, mother and sister with a pestle. When she raised screams, accused ran after her, somehow she escaped and reached to the house of Hirajan and Thadguram and informed them about the incident on which they came on the spot. Hirajan snatched the weapon of offence, pestle from the accused before whom accused made extra-judicial confession, thereafter, the accused ran away from the place of occurrence. ( 9 ) DR. Ravindra Netam (PW/7) has stated that on 23-9-2005 when he was working as assistant Surgeon in the Primary Health centre, Anantpur (Madki) on the request of station House Officer, Shri A. K. Dewangan (PW/11), Police Station, Kondagaon, he conducted post-mortem on the body of Raghu singh. He noticed that skull bone was fractured and depressed, blood was present on the brain, which was visible out of the skull, right temporal maxilla mandible bones were fractured, frontal bone was also fractured and there was profuse bleeding from the head, clotted blood was also present, four ribs were also fractured. On opening of the head, he saw that brain was depressed, the lungs were full of blood, there was blood in the trachea, there was injury on the liver and cause of death was head injury and haemorrhage as also on account of piercing of ribs into lungs. Death was homicidal in nature. His report is Ex. P/15. He has further stated that on the same day he conducted post-mortem on the body of Ku. Suvidha and noticed that there was an injury on the occipital and frontal bones in the size of 5 x 7 c. m. , there was profuse bleeding from the injury, there was bleeding from nose and ears, occipital and skull bones were fractured, mandible bone was also fractured from both angles, on opening of the head, he saw a subdural haematoma, occipital bone was fractured. In his opinion, cause of death was head injury and nature of death was homicidal. He has further stated that on 24-9-2005 he conducted post-mortem on the body of Sapdai and noticed that there was a lacerated wound on the occipital region, there was bleeding in the mouth and ear, mandible bone was fractured, skull was depressed, contusion on the brain, there was a subdural Haematoma on the left parietal region. He has further stated that on 24-9-2005 he conducted post-mortem on the body of Sapdai and noticed that there was a lacerated wound on the occipital region, there was bleeding in the mouth and ear, mandible bone was fractured, skull was depressed, contusion on the brain, there was a subdural Haematoma on the left parietal region. In his opinion, cause of death was injuries to the skull, parietal region and also mandible and death was homicidal in nature. Therefore, in view of the above medical and ocular evidence, it is established that deaths of Raghu Singh, suvidha and Sapdai were homicidal in nature. ( 10 ) AS far as involvement of the accused/ appellant in commssion of the crime is concerned, PW/2 Sanmati, who is the main material witness, wife of the accused and daughter-in-law of deceased Raghu Singh and Sapdai, has stated that in the fateful night after taking their meals deceased persons and accused were sleeping at one place whereas she along with her children was sleeping in the same house at some other place. At about 12. 00 in the mid-night, on hearing the noise she woke up and saw that the accused/appellant was attacking the deceased persons with pestle and on seeing this she raised scream on which the accused/appellant after opening the door ran after her, however, she escaped and went to the house of Hirajan and Thadguram and informed them about the incident on which they came on the spot and saw the accused/ appellant holding pestle stained with blood. As per the evidence of PW/3 Hirajan, the pestle was snatched by him from the accused and the accused made extra-judicial confession before him that he has murdered his father, mother and sister and thereafter accused ran away from the scene of occurrence. The evidence of these two witnesses has aiso been corroborated by the evidence of PW/1 Thadguram who has stated that pw/2 Sanrnati carne to his house and informed him about the incident on which he and Hirajan went to the house of the accused where they saw the bodies of Raghu singh, Ku. Suvidha and Sapdai in injured condition. They also saw that Raghu Singh and Suvidha were already dead whereas sapdal was breathing and thereafter Doctor was called, in the morning she was taken to hospital where she breathe last. Suvidha and Sapdai in injured condition. They also saw that Raghu Singh and Suvidha were already dead whereas sapdal was breathing and thereafter Doctor was called, in the morning she was taken to hospital where she breathe last. Thadguram and Hirajan are real brothers, who are the cousin brothers of the accused/ appellant. In the cross-examination of these three witnesses, defence has not been able to elicit any circumstance which makes the evidence of these witnesses unreliable or untrustworthy. ( 11 ) PW/2 Sanmati is the wife of the accused and she has narrated the incident and there was no reason before her to implicate her husband in a false case. Moreover, accused made extra-judicial confession before his cousin brother Hirajan. Even the pestle, weapon of offence by which the accused assaulted the deceased persons was snatched by Hirajan and the same was handed over by him to Police under seizure memo vide Ex. P/3 and as per the seizure memo there was an iron loop on the one corner of the pestle, therefore, the evidence of PW/2 Sanmati, PW/3 Hirajan and PW/1 thadguram is convincing and the same inspires the confidence of the Court, PW/2 sanmati had witnessed the crime whereas thadguram and Hirajan reached on the spot immediately where they saw the accused holding the pestle in his hand, weapon of offence. Therefore, to this extent, we do not find any illegality or infirmity in the finding of the trial Court, convicting the accused under Section 302 for committing murder of Raghu Singh, Suvidha and Sapdai. ( 12 ) NOW coming to the question of extreme penalty of death imposed on the accused/appellant, learned Sessions Judge has observed in para 30 of his judgment that after considering all the facts, circumstances and material placed on record and the manner in which the accused attacked his father, mother and sister brutally with pestle, the act of the accused comes under the category of rarest of rare cases. The act of the accused shows the extreme cruelty with which the accused committed the murder of his own father, mother and sister, therefore, the act of the accused deserves to be punished with extreme penalty of death. ( 13 ) DR. N. K. Shukla, learned Sr. Advocate argued that the act of the accused does not corne within the category of rarest of the rare cases. ( 13 ) DR. N. K. Shukla, learned Sr. Advocate argued that the act of the accused does not corne within the category of rarest of the rare cases. There was no motive behind the commission of the crime and from perusal of record, it shows that the accused/appellant was in the habit of consuming liquor and he was not working and his parents as well as his wife used to scold him and they were asking him not to indulge in alcoholic habit and out of frustration accused committed heinous crime. Accused is not a habitual criminal and he has not committed the crime for gain, therefore, it is in the fitness of things that the death penalty be converted into life imprisonment. ( 14 ) ON the other hand, learned Additional Public Prosecutor for the state supported the judgment of the trial Court and argued that the manner in which the accused/appellant committed heinous crime without any rhyme or reason, therefore, looking to the brutality with which the accused committed the crime, he has been rightly punished with extreme penalty. ( 15 ) HAVING heard learned counsel for the parties, we have perused the record as also the relevant case law on the point. Section 354 (3) of the Code of Criminal Procedure prescribes that "when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. " This section has been interpreted by the Hon'ble Apex Court time and again in many cases and the general rule which has been laid down by the Hon'ble Apex Court is that "life imprisonment" is rule and "death penalty" is an exception i. e. , the death penatly can be awarded in the exceptional cases only. " This section has been interpreted by the Hon'ble Apex Court time and again in many cases and the general rule which has been laid down by the Hon'ble Apex Court is that "life imprisonment" is rule and "death penalty" is an exception i. e. , the death penatly can be awarded in the exceptional cases only. The landmark judgment on this point is Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 : (1980 Cri LJ 636) in which Hon'ble Apex Court after considering all the aspects and constitutional validity of this provision laid down that " (i)the extreme penalty of death should not be inflicted except in the gravest cases of ex-treme 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. 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; (iv) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has 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". This judgment was again considered in the case of machhi Singh and others v. State of Punjab, reported in (1983) 3 SCC 470 : (1983 Cri LJ 1457) in which the principle of rarest of rare case was again reiterated and it was held that the death sentence can only be inflicted in case where the murder was cold-blooded, calculated and gruesome multiple murders as a reprisal in a family feud and in which the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded 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; when the murder is committed for a motive which evinces total depravity and meanness e. g. murder by hired assassin for money or reward, or coldblooded murder for gains for a person visa-vis whom the murderer is in a dominating position or in a position of trust or murder is committed in the course of betrayal of the motherland; 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 or in cases of bride burning or dowry deaths or when whose murder is committed is an innocent child or a helpless woman or old or infirm person. ( 16 ) AGAIN in the case of Allauddin Mian and others v. State of Bihar, reported in (1989) 3 SCC 5 : (1989 Cri LJ 1466) Hon'ble apex Court considered Section 354 (3) of the cr. P. C. and reiterated the principles laid down in earlier decisions and held that hold:-ing the reasons for award of death sentence are mandatory. Sub-section (3) of Section 354 cast a heavy duty on the Court to explain its choice why such sentence in being awarded. The special reasons clause is that sub-section is a sufficient safeguard against arbitrary imposition of the extreme penalty and if the Court reached to the conclusion that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment. The special reasons clause is that sub-section is a sufficient safeguard against arbitrary imposition of the extreme penalty and if the Court reached to the conclusion that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment. Only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community would it be permissible to award the death sentence. ( 17 ) THIS aspect was again considered by the Hon'ble Apex Court in the case of State through Superintendent of Police, CBI/sit v. Nalini and others, reported in 1999 (5)SCC 253 : (1999 Cri LJ 3124) and in the case of Om Prakash v. State of Haryana, reported in 1999 (3) SCC 19 : (1999 Cri LJ 2044 ). In that case a member of a Para-military force, who had killed seven members of the family, was not awarded extreme penalty for the reason that he had been labouring under the strain that he and his family members had been suffering due to injustice being rented out to them by the family of the deceased. It was considered to be mitigating circumstances in that case. In the case of State of Punjab v. Gurmej Singh (2002 Cri LJ 3741) (supra) Hon'ble Apex court held that before awarding the death penalty the Court has to consider the motive of the crime, manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, the circumstances and facts of the case as to whether the crime committed is for satisfying any kind of lust, greed or in pursuance of any organized anti-social activity or by way of organized crime, drug trafficking or the like or the chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future or commission of murder which may be shocking to the conscience. ( 18 ) THE position is again reiterated in devender Pal Singh v. State of NCT of Delhi, reported in 2002 SCC (Cri) 978 : (AIR 2002 sc 1661) : (2002 Cri LJ 2034) thus (para 30 of Crilj) : "para 58. ( 18 ) THE position is again reiterated in devender Pal Singh v. State of NCT of Delhi, reported in 2002 SCC (Cri) 978 : (AIR 2002 sc 1661) : (2002 Cri LJ 2034) thus (para 30 of Crilj) : "para 58. From Bachan Singh v. State of punjab (1980 Cri LJ 636) and Machhi v. State of Punjab (1983 Cri LJ 1457), the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed : the community may entertain such sentiment in the following circumstances : (1) 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; (2) When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) 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; or in cases of 'bride burning' or 'dowry death' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) 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. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so. " ( 19 ) THE principle, which has been enunciated by the Hon'ble Apex Court in the above decision, is that when the question comes up for decision as to whether extreme penalty of death is to be awarded, a balance has to be struck between the aggravating and mitigating circumstances. The sum and substance of the principles enunciated by the Hon'ble Apex Court extracted above, is that the death penalty can be awarded only in rarest of rare cases and in exceptional cases looking to the facts and circumstances of the particular case, where looking to the facts and circumstances of the case the awarding of the life imprisonment is inadequate. ( 20 ) THE trial Court while awarding the extreme penalty of death sentence' to the accused for commission of three murders, has observed that the accused committed the murder of his own father, mother and sister in a brutal manner, therefore, he deserves to be punished with death penalty. ( 21 ) FOR the sake of repetition, it may be mentioned that Section 354 (3) of the Cr. P. C. contemplates that in the event of sentence of death, the Court must state special reasons for such a sentence. ( 22 ) IF we look into the facts and circumstances of the case and background in which the accused committed three murders of his family members, it is not the case of the prosecution that accused is a person having criminal background or was continuously indulging in criminal activities or has committed murders for gain. It is not established that what was the motive of accused behind committing three murders. It is not established that what was the motive of accused behind committing three murders. As per the record of the case, in fact accused was in the habit of consuming liquor and with a very poor family background and when it was not possible for the family members to bear with the activities of the accused, the father, mother and other family members of the accused used to scold him and it seems that out of frustration accused had committed the crime. Therefore, we are of the considered opinion that the facts of the case do not fall within the category of special reasons of rarest of rare case and the statutory requirements of Section 354 (3) of the Cr. P. C. are not satisfied. Of course, the act of accused was brutal, every incidence of murder involves brutality. Brutality is one of the factor for imposing the extreme penalty on the accused while considering the case for imposition of sentence on the accused, but it cannot be a sole ground for imposing extreme penalty. The other factors have also to be taken into consideration i. e. aggravating and mitigating circumstances along with brutality i. e. act of the accused. The legislature has incorporated this provision of death penalty in order to impose appropriate punishment looking to the criminal act to respond the cry of society for justice against criminals. Punishment is always imposed not only to punish the criminal but also to ensure that criminal is punished in such a befitting manner commensurate with the crime committed by him that the society at large feels that looking to the conduct of the criminal it was imperative that he should be punished with extreme penalty. 01 course, at the time of consideration for punishment the Court is required to consider the act as well as right of victim of crime and the society at large. Manifestly, inadequate punishment having regard to the nature of crime of offence would not subserve the cause of justice to the society. 01 course, at the time of consideration for punishment the Court is required to consider the act as well as right of victim of crime and the society at large. Manifestly, inadequate punishment having regard to the nature of crime of offence would not subserve the cause of justice to the society. The court has to examine as to whether the murder has been committed for a motive, which evinces total depravity and meanness e. g. murder by hired assassin for money or reward or cold-blooded murder for gains o: a person vis-a-vis whom the murderer is in a dominating position or in a position of trust or when the Court reaches to the conclusion looking to the facts of the case that the accused is a menace to the society looking to his past criminal track record and nefarious activities. ( 23 ) THEREFORE, we are of the considered opinion that looking to the entirety of the circumstances and facts of the case, the act of the accused/appellant does not come within the category of the rarest of the rare cases, as such the extreme penalty of death imposed on the accused/appellant cannot be sustained. ( 24 ) IN the result, the appeal filed by the accused/appellant partly succeeds while maintaining the conviction under Section 302 of the IPC for committing murder of raghu Singh, Sapdai and Suvidha, the extreme death penalty imposed on the accused/appellant is set aside, instead thereof accused/appellant is sentenced to undergo imprisonment for life. The reference made by the trial Court for confirmation of death penalty is rejected. Order accordingly. --- *** --- .