A. M. KAPADIA, J, J. ( 1 ) CRIMINAL Confirmation Case No. 2 of 2005 arises pursuant to submission of the proceedings of Sessions Case No. 71 of 2003 made under Section 366 (1) of the Code of criminal Procedure (the Code for short) by the learned Additional, Sessions Judge, 4th fast Track Court, Surat, who by his judgment and order dated 15. 2. 2005, has sentenced respondent - Bhagavan Handu behara (the accused for short) to death for commission of offence punishable under section 302 of the Indian Penal Code (IPC for short) whereas Criminal Appeal No. 421 of 2005 filed under Section 374 (2) of the code by the accused from the jail is also directed against the judgment and order dated 15 2. 2005 rendered by the learned additional Sessions Judge, 4th Fast Track court, Surat in Sessions Case No. 71 of 2003 by which the appellant/accused is convicted for the offence punishable under Section 302 of the IPC and sentenced to death. ( 2 ) AS Criminal Confirmation Case and Criminal Appeal arise out of the judgment and order dated 15. 2. 2006 rendered in Sessions Case No. 71 of 2003 by the learned Additional Sessions Judge, 4th fast Track Court, Surat, this Court proposes to hear the reference for confirmation of sentence of death and the appeal preferred by the accused together and to deal with the merits of the case against the accused in the light of all the material questions of law as well as facts, and to adjudicate upon the guilt of the accused and appropriateness of sentence of death by this common judgment. ( 3 ) THE facts emerging from the record of the case, more particularly, as disclosed in FIR and unfolded during trial are as under:"1. As per the averments made in the complaint lodged by Manglu Handu behara, a resident of Surat City, he was residing in Surat City since 16 years prior to the incident. He was staying with his father Handu Behara, wife Shashiben, daughter Leelandri and son Rohit and eked out running a tea-larry near his house for the last ten days prior to the happening of the incident. His real brother, the accused, was also staying with him. But as he was not in good terms with them, he was driven out of the house. His real brother, the accused, was also staying with him. But as he was not in good terms with them, he was driven out of the house. Therefore, the accused had gone to stay with his distant maternal uncle praful Khaliya Behara in Surat City. ""2. As per the averments made in the complaint, the reason of dissonance between his deceased wife Shashiben and the accused was that his son Rohit had pneumonia prior to one month from the date of the incident and as he became serious he was admitted in New Civil Hospital, Surat for treatment for about 10 to 12 days and at that time saline dripping was necessitated to be administered to Rohit and hence wife of the complainant asked the accused that he should take proper care of Rohit and hold his hand steadily for smooth administering of saline. At that time the accused became angry and gave 2/3 slaps to her. In this regard, the complainant scolded the accused. Thereafter, Rohit, son of the complainant, was discharged from the hospital and the complainant took him back to his house. As per further,case of the prosecution, prior to 5 to 6 days of the incident, when father of the complainant, his wife and accused all were in the house, the accused told the complainant that he shall take his wife and go to his native place. The complainant, therefore, asked the accused why should he go to his native place. Wife of the complainant also asked the accused who was he to tell her to go to native place and was he her husband? On Shashiben saying so, the accused got excited and enraged and lifted kerosene can and rushed to the wife of the complainant stating that if she keeps nagging him, he will sprinkle kerosene on her and set her ablaze. The complainant and his father snatched away the kerosene can from the hand of the accused and on the same day the complainant had driven him out of his house. ""3. As per further case of the prosecution, on the fateful day, because of ganesh festival, the complainant closed the tea-larry at about 10 0 clock and along with the residents of his area he went in a truck to Rajkumar Talkies for bringing idol of ganapati. ""3. As per further case of the prosecution, on the fateful day, because of ganesh festival, the complainant closed the tea-larry at about 10 0 clock and along with the residents of his area he went in a truck to Rajkumar Talkies for bringing idol of ganapati. At that time, father of the complainant along with Rohit, the son of the complainant, came to the road to see ganapati. The accused at the relevant time was sitting near the stage prepared on the road for idol Ganapati but he did not go to bring ganapati. At about 11. 30-11. 45 A. M. , when the complainant and others reached near rajkumar Talkies and the complainant was in the ruck, somebody yelled by his name and told him that the accused burnt his wife and son On hearing this, the complainant immediately caught a rickshaw and reached his house He found so many persons of his area gathered near his house and in his house, his son and wife, both were found in a wholly burnt condition. He, therefore, immediately took them in a rickshaw, with a person who hails from the village of his wife, to New Civil Hospital, Surat. The doctor examined and declared his son dead whereas his wife who was alive at that time was admitted in the hospital for treatment. Thereafter he came to know that Bavri sanyasi Gonda who was residing adjacent to his house, while trying to rescue his wife and son suffered serious burn injuries and he was also admitted in the hospital for treatment. ""4. As per further case of the prosecution, as the accused was quarreling with the wife of the complainant and was also beating her, the complainant had driven the accused away from his house and the accused, keeping grudge against Shashiben, sprinkled kerosene on the wife and son of the complainant and set them ablaze at about 11. 30 in the morning. Because of the gruesome act of the accused, son of the complainant died and his wife sustained serious burn injuries on whole of her body and one Bavri Sanyasi Gonda who tried to rescue them also received burn injuries. ""5. 30 in the morning. Because of the gruesome act of the accused, son of the complainant died and his wife sustained serious burn injuries on whole of her body and one Bavri Sanyasi Gonda who tried to rescue them also received burn injuries. ""5. The aforesaid incident was reported to P. W. 17, Babulal Veljibhai ramani, P. I. of Umra Police Police Station, surat, by P. W. 12, Sirajuddin Saiyed, ASI of umra Police Station, Surat, and, therefore, p. W. 17, Babulal Veljibhai Ramani, went to new Civil Hospital, Surat and recorded the complaint of P. W. 5, Manglu Handu Behara ("the complainant" for short), as narrated by him. The said complaint is on record at ex. 42. The complainant was explained the contents of the complaint in Hindi Language as he originally belongs to Orissa and his signature was also obtained beneath the same. He thereafter sent the complaint to pso for registration. ""6. Pursuant to the registration of the complaint, crime was registered against the accused for commission of the offence punishable under Section 302 of the IPC. Thereafter P. W. 17, Babulal Veljibhai ramani, held inquest on the dead body of rohit and sent for autopsy examination. He also made necessary arrangement for recording dying declaration of injured shashiben and Bavri Sanyasi Gonda by sending requisition to Executive Magistrate. After that he went to the scene of the offence and drawn up Panchnama of the scene of offence in presence of panch witnesses. He also called the officers from the FSL and fromt the scene of offence he recovered a kerosene can and half burnt mattresses. Since there was incriminating evidence against the accused, he arrested the accused and drew the panchnama of his person. He thereafter recorded statement of the witnesses of the immediate vicinity of the scene of the offence. ""7. On 11. 9. 2002, while he was at his residence, he received a telephone call from the PSO informing him that the accused tried to commit suicide. Therefore the accused was sent to hospital and necessary arrangement for recording his dying declaration was made by sending requisition to Executive Magistrate. ""8. During the course of the investigation, Shashiben and Bavri Sanyasi gonda succumbed to the injuries sustained by them. He held inquest on the dead body of Shashiben and Bavri Sanyasi Gonda and thereafter their dead bodies were sent for autopsy examination. ""8. During the course of the investigation, Shashiben and Bavri Sanyasi gonda succumbed to the injuries sustained by them. He held inquest on the dead body of Shashiben and Bavri Sanyasi Gonda and thereafter their dead bodies were sent for autopsy examination. He also sent the muddamal to FSL for analysis and report. ""9. On completion of the investigation, as sufficient incriminating evidence was found against the accused, he filed charge-sheet against the accused in the court of learned Chief Judicial Magistrate, surat, for commission of the offence punishable under Section 302 of the IPC. ""10. As the offence punishable under Section 302 of the IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Surat where it was numbered as Sessions Case no. 71 of 2003. ""11. The learned Additional sessions Judge, 4th Fast Track Court, Surat to whom the case was made over for trial, framed necessary charge against the accused at Ex. 6. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried and, therefore, he was put to trial and tried by the learned trial judge in Sessions Case No. 71 of 2003. ""12. To prove the culpability of the accused, the prosecution examined as many as 17 witnesses and relied upon their oral testimony, the details of which have been given in para 5 of the impugned judgment and order, as under: (i) P. W. I, Dr. Shailesh Hasmukhbhai zaveri, Medical Officer, New Civil Hospital, surat, who performed autopsy of deceased rohit, Shashiben and Bavri Sanyasi Gonda, ex. 10, page No. 40. (ii) P. W. 2, Revabhai Machabhai chaudhari, Executive Magistrate who recorded dying declaration of deceased shashiben, Ex. 22, page No. 71. (iii) P. W. 3, Gopalbhai Virubhai behara, Panch witness for the place of offence (hostile) Ex. 26, page No. 77. (iv) P. W. 4, Bhagvanbhai Khanabhai, executive Magistrate, who recorded dying I declaration of deceased Bavri Sanyasi I gonda, Ex. 37, page No. 94. (v) P. W. 5, Mangal Behara Handu behara, complainant, Ex. 41, page No. 98. (vi) P. W. 6, Thakorbhai Chunilal patel, Executive Magistrate who recorded dying declaration of accused Bhagvan handu Behara, Ex. 43, page No. 102. (vii) P. W. 7, Prabhavatiben Guruddin gupta, landlord of the rented one room to complainant Manglu Behara, Ex. 46, page no. 107. (v) P. W. 5, Mangal Behara Handu behara, complainant, Ex. 41, page No. 98. (vi) P. W. 6, Thakorbhai Chunilal patel, Executive Magistrate who recorded dying declaration of accused Bhagvan handu Behara, Ex. 43, page No. 102. (vii) P. W. 7, Prabhavatiben Guruddin gupta, landlord of the rented one room to complainant Manglu Behara, Ex. 46, page no. 107. (viii) P. W. 8, Subhash Laxman behara, running grocery shop in Tulsinagar, ex. 47, page No. 109. (ix) P. W. 9, Anuben Heena Dathia behara, neighbour and eye witness, Ex. 48, page 111. (x.) P. W. 10, Santram Madhuri, neighbour of deceased Shashiben (hostile), ex. 49, page No. 113. (xi) P. W. ll, Handu Bhura Behara, father of the accused (hostile) Ex. 50, page no. 115. (xii)P. W. 12, Sirajuddin Ismail, p. S. O. Umra Police Station, Ex. 51, page no. 117. (xiii)P. W. 13, Mohanbhai Jivabhai rathod, Scientific Officer, FSL, Ex. 53, page 120. (xiv) P. W. 14, Prakash Shriram, PSO, umra Police Station who registered the offence, Ex. 56, page No. 123. (xv) P. W. 15, Dr. Ravishankar sureshchandra, Medical Officer, New Civil hospital, who gave medical treatment to victim Shashiben and Bavri Sanyasi Gonda and made endorsement on the yadi for calling the Executive Magistrate, Ex. 59, page no 130. (xvi) P. W. 16, Lalitbhai Devrajbhai, neighbour (hostile) Ex. 62, page No. 165, (xvii) P. W. 17, Babulal Veljibhai ramani, Police Inspector, Umra Police station, investigation Officer, Ex. 64, page no. 168. ""13. To prove the charge levelled against the accused, the prosecution also produced as many as 36 documents and relied upon the contents of the same, the details of which are also enumerated in paragraph 5 of the impugned judgment and order, as under: (i) Original yadi deceased Rohit manglu Behara, Ex. 11. (ii) P. M. Note of deceased Rohit, ex. 12. (iii) Certificate showing cause of death of Rohit Manglu, Ex. 13. (iv) Original yadi - Shashiben manglu Behara, Ex. 14. I (v) P. M. Note of deceased Shashiben behara, Ex. 15. (vi) Certificate showing cause of death of Shashiben Manglu, Ex. 16. (vii) Original yadi - Bavri Sanyasi gonda, Ex. 17 (viii) P. M. Note of Bavri Sanyasi gonda, Ex. 18. (ix) Certificate showing cause of death of Bavri Sanyasi Gonda, Ex. 19. (x) Original yadi - for recording dying declaration, Ex. 24. (xi) Dying Declaration Ex. 25. 15. (vi) Certificate showing cause of death of Shashiben Manglu, Ex. 16. (vii) Original yadi - Bavri Sanyasi gonda, Ex. 17 (viii) P. M. Note of Bavri Sanyasi gonda, Ex. 18. (ix) Certificate showing cause of death of Bavri Sanyasi Gonda, Ex. 19. (x) Original yadi - for recording dying declaration, Ex. 24. (xi) Dying Declaration Ex. 25. (xii) Panchnama of scene of offence Ex. 27 (xiii) Chit with muddamal article Ex. 28. (xiv) Chit bearing signature with muddamal article - Mattresses - Ex. 29. (xv) Arrest panchnama of accused, ex. 30. (xvi) Inquest panchnama - deceased rohit Manglu Behara, Ex. 31. (xvii) Inquest Panchnama - deceased shashiben Manglu Behara, Ex. 32. (xviii)Inquest Panchnama - deceased bavri Sanyasi Gonda, Ex. 33. (xix)Yadi received for making map of the scene of offence, Ex. 35. (xx) Map of scene of offence, Ex. 36 (xxi) Original yadi for recording dying declaration - deceased Bavri Sanyasi gonda, Ex. 3 8. (xxii) Copy of Dying Declaration - bavri Sanyasi Gonda, Ex. 3 9. (xxiii) Original complaint, Ex. 42. (xxiv) Yadi written by In charge PSI of Umra Police Station, Surat to Additional executive Magistrate for recording Dying declaration - in respect of attempt to commit suicide by hanging by accused, Ex. 44. (xxv) Dying Declaration of Bhagvan handu Behara, Ex. 45. (xxvi)True copy of original station diary, Ex. 52. (xxvii) Original yadi from PI, Umra police station, Surat City to Dy. Director of fsl, Faslavadi, Surat, Ex. 54. (xxviii) True copy of station diary dated 10. 9. 2002, Ex. 57. (xxix)Original papers of death slip of deceased Shashiben, page nos. 1 to 8 Ex. 60. (xxx) Original papers of death slip of deceased Bavri, page Nos. 1 to 13, Ex. 61. (xxxi) Index Ex. 65. (xxxii)Dying Declaration of deceased shashiben, Ex. 66. (xxxiii) Dying Declaration of deceased Bavri Ex. 67. (xxxiv) Carbon copy of dispatch note, ex. 68. (xxxv) FSL receipt, Ex. 69, (xxxvi) FSL report Ex. 70. ""14. After recording of the evidence of the prosecution witnesses was over, the learned trial Judge explained to the accused the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement, he denied the case of the prosecution in toto by saying that he was falsely implicated in the case because of enmity. In his further statement, he denied the case of the prosecution in toto by saying that he was falsely implicated in the case because of enmity. He has stated that prior to the alleged incident, when Shashiben was admitted in the hospital, she became mad and she tore her sari and came down from the first floor. Therefore he lifted her and took her again to the first floor of the hospital. He further stated that deceased shashiben had illicit relation with her neighbour, Panchanan. He also stated that prior to this incident also she tried to commit suicide by sprinkling kerosene on her body. Thereafter for the second time also she tore her sari and came out of the house. At that time also he took her to the house by lifting her. He raised objection to the illicit relation she had with her neighbour, panchanan, and because of this reason he has been falsely implicated in the murder case. He is innocent. However, he did not lead any evidence nor examined any witness in support of his defence. ""15. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the learned trial judge held that deceased Rohit, Shashiben and Bavri Sanyasi Gonda all died a homicidal death. The learned trial Judge also held that on 10. 9. 2003 at 11. 30 AM. the accused sprinkled kerosene on Shashiben and her son Rohit and set them on fire and he also sprinkled kerosene on Bavri Sanyasi gonda, who came to rescue Shashiben and rohit and ablaze him also and as a result of the burn injuries, all of them succumbed to the same, and therefore, it was proved that the accused has committed offence punishable under section 302 of the IPC. ""16. For coming to the said conclusion, the learned trial Judge relied upon the dying declarations made by deceased Shashiben as well as deceased bavri Sanyasi Gonda before the Executive magistrate as well as Police Inspector, which, according to the learned trial Judge, were reliable, trustworthy and beyond the shade of doubt. In this connection, according to the learned trial Judge, the evidence of the Executive Magistrate and Police inspector is clinching and from their evidence, dying declarations made by shashiben and Bavri Sanyasi Gonda, have been proved. In this connection, according to the learned trial Judge, the evidence of the Executive Magistrate and Police inspector is clinching and from their evidence, dying declarations made by shashiben and Bavri Sanyasi Gonda, have been proved. The learned trial Judge also considered the oral dying declaration made by deceased before P. W. 8, Subhash Laxman behara, who has been examined at Ex. 47, winch is also proved from his evidence. In the said dying declaration also deceased shashiben had narrated correct account about the complicity of the accused for setting all of them ablaze. Besides this, the learned trial Judge also considered the evidence of two eye witnesses - P. W. 7, prahhavatiben Guruddin Gupta, Ex. 46 and p. W. 9. Anuben Heena Dathia Behara, Ex. 48, whose presence at the scene of the offence was natural as they were residing adjacent to the house of deceased Shashiben. In view of the above referred to conclusions, the learned trial Judge held that the charge evelled against the accused for commission of the offence punishable under section 302 of IPC was fully and satisfactorily established by the prosecution. ""17. The learned trial Judge hereafter heard the accused on the question of sentence. According to him, the accused had committed brutal and diabolic murder of three persons, i. e. , Rohit, Shashiben and bavri Sanyasi Gonda and as he had committed the heinous crime of triple murder in a shocking manner, imposition of death sentence was warranted. For justifying imposition of death penalty on the accused, the learned trial Judge sought support from the decision of the Supreme Court in the case MACHHI SINGH V/s. STATE OF punnab AIR 1983 SC 957 AS WELL AS state OF GUJARAT V/s. SURENDRAPAL shivabalakpal, 2004 (3) GLR 2468 . ""18. In view of these conclusions, the learned trial Judge has imposed death sentence on the accused for commission of murder of Rohit, Shashiben and Bavri sanyasi Gonda vide judgment and order dated 15. 2. 2005 rendered in Sessions Case no. 71 of 2003, giving rise to above-numbered two proceedings. " ( 4 ) IT may be stated that the accused being poor had filed appeal through jail and prayed to make him available free legal aid at the cost of Government by appointing an advocate practising in this Court. Accordingly, Ms. 2. 2005 rendered in Sessions Case no. 71 of 2003, giving rise to above-numbered two proceedings. " ( 4 ) IT may be stated that the accused being poor had filed appeal through jail and prayed to make him available free legal aid at the cost of Government by appointing an advocate practising in this Court. Accordingly, Ms. Banna Dutta, learned advocate practising in this Court is appointed to render free legal assistance to the accused. The appeal filed by the accused is numbered as Criminal Appeal No. 421 of 2005 and admitted vide order dated 19. 4. 2005 with a direction to hear it with confirmation Case No. 2 of 2005. ( 5 ) MS. Banna Dutta, learned advocate of the accused, has contended that there is discrepancy on material aspects of the dying declarations of Shashiben and bavri Sanyasi Gonda recorded by the executive Magistrates as well as the Police officer. So far as the oral dying declaration made by deceased Shashiben before P. W. 8, subhash Laxman Behara, Ex. 47, is concerned, according to her, his evidence does not inspire confidence. So far as the evidence of P. W. 7, Prabhavatiben Guruddin gupta, Ex. 47 and P. W. 9, Anuben Heena dathia Behara, Ex. 48 is concerned, according to her, they are not ocular witnesses to the incident as according to their version, door of the house of deceased Shashiben was closed and they saw the deceased coming out of the house blazing along with the accused. Therefore, as stated by the accused in his further statement under Section 313 of the code, there is reason to believe that deceased Shashiben committed suicide by sprinkling kerosene on her body and igniting herself as prior to the alleged incident also she had tried to commit suicide. Ms. Dutta has further contended that Bavri Sanyasi gonda, who went to rescue Shashiben also received burn injuries and, therefore, it is a case of suicidal death and not homicidal death She has also pointed out that so far as the evidence of P. W. 11, Handu Bhura behara, Ex. 50, who is father of the complainant and accused as well as father- in-law of deceased Shashiben is concerned, he has not supported the prosecution case. 50, who is father of the complainant and accused as well as father- in-law of deceased Shashiben is concerned, he has not supported the prosecution case. According to her, he was the best person who could have thrown light on the alleged incident Therefore, according to her, a doubt is raised in the prosecution case and hence conviction of the accused under Section 302 of the IPC for murder of Rohit, Shashiben and Bavri Sanyasi Gonda is not well-founded and the same deserves to be set aside. She has also emphasised that the learned trial judge has failed to appreciate the evidence on record in its true perspective and spirit and therefore the appeal filed by the accused should be allowed. " (1)In the alternative, she has argued that the learned trial Judge was not justified in relying upon two reported decisions, one of the Supreme Court and another of this Court referred to in the operative part of the impugned judgment, for the purpose of imposition of death sentence on the accused inasmuch as facts of those cases were quite different from those obtaining in instant case. After placing eliance on the decision of the Supreme court in PANCHHI AND OTHERS V/s. STATE OF UP (1998) 7 SCC 177 , she has contended that brutality of the manner in which a murder is perpetrated may be a ground, but not the sole criterion for judging whether the case is one of the rarest of rare cases as indicated in BACHAN SINGH V/s. STATE OF PUNJAB. (1980) 2 SCC 684 and as the learned trial Judge has taken into consideration only brutality of the manner in which the murder of Rohit, Shashiben and bavri Sanyasi Gonda was committed, but, has failed to take into consideration mitigating features surrounding murder of the deceased persons, the death sentence imposed on the accused deserves to be commuted to life imprisonment. Ms. Dutta has also pointed out to us that the evidence of the complainant, if accepted, would show that unrest was prevailing in the mind of the accused as he was driven out of the house by the complainant, and hence imposition of death sentience is not warranted at all. Ms. Dutta has also pointed out to us that the evidence of the complainant, if accepted, would show that unrest was prevailing in the mind of the accused as he was driven out of the house by the complainant, and hence imposition of death sentience is not warranted at all. She has prayed that in the facts and circumstances of the case, death sentence imposed on the accused should not be confirmed by this Court and Criminal confirmation Case No. 2 of 2005 should be dismissed. " ( 6 ) MR. KP Raval, learned APP for the state of Gujarat, has vehemently and forcefully contended that there are two consistent, reliable and trustworthy dying declarations made by deceased Shashiben and deceased Bavri Sanyasi Gonda, one before the Executive Magistrate and another before the Police Officer. They are so consistent in nature that not an iota of doubt can be raised upon the same. There is also a dying declaration by deceased Shashiben before P. W. 8, Subhash Laxman Behara, whose oral testimony has been recorded at ex. 47 and from his evidence, oral dying declaration made by deceased Shashiben before him has been proved. The sequence of events is also in such a way that there is no scope of false implication of the accused in a triple murder case. The complainant is the brother of the accused as well as the husband of deceased Shashiben and father of Rohit and he had no enmity with the accused to falsely implicate him in a triple murder case. The accused was insisting the complainant to leave Surat with his wife and to go to his native place at Orissa. Prior to this incident also the accused had beaten shashiben. Therefore, at the instance of shashiben, the complainant had driven the accused out of his house. The accused, therefore, was mindful to take revenge on shashiben and to achieve the said object, on the fateful day, by taking advantage of the situation as none was present in the house except Shashiben and Rohit, he went to the house of the complainant, bolted the door from inside, sprinkled kerosene on the body of Shashiben and her son Rohit, an innocent child who was sleeping, and set them on fire. Shashiben raised screams. Shashiben raised screams. Thereupon, Bavri sanyasi Gonda, who was her neighbour came there, broke open the door which was latched from inside and tried to rescue her. At that time the accused became furious and sprinkled kerosene on Bavri Sanyasi Gonda also who had no concern with the quarrel between the accused and deceased shashiben, and set him also on fire. Therefore, according to Mr. Raval, learned app, the accused has taken life of three innocent persons and the prosecution has successfully proved the case against the accused by cogent, convincing, trustworthy and reliable evidence and set all the doubts at rest Besides this, there is evidence of eye witnesses, P. W. 7, Prabhavatiben Guruddin gupta, Ex. 46 and P. W. 10, Anuben Heena dathia Behara, Ex. 48. He has emphasized that the evidence led by the persecution is of such a nature that no doubt can be raised upon the same. Therefore the prosecution has successfully proved the guilt of the accused beyond reasonable doubt and the complicity of the accused in the commission of murder of Rohit, Shashiben and Bavri sanyasi Gonda is clearly established. According to him, the impugned judgment convicting the accused for commission of the offence under Section 302 of the IPC does not call for interference of this court in exercise of powers under section 374 (2) of the code. " (1) So far as the imposition of death sentence on the accused is concerned, according to Mr. Raval, learned APP, the way in which the ghastly, diabolic and dastardly murder of three innocent persons has been committed by the accused, no sympathy can be shown to him and this can be called a "rarest of the rare cases". " (2) Dealing with the alternative plea raised by Ms. Raval, learned APP, the way in which the ghastly, diabolic and dastardly murder of three innocent persons has been committed by the accused, no sympathy can be shown to him and this can be called a "rarest of the rare cases". " (2) Dealing with the alternative plea raised by Ms. Banna Dutta, learned advocate of the accused, that death sentence should be commuted to life imprisonment as brutality of the manner in which the murder of Rohit, Shashiben and Bavri Sanyasi gonda was committed is not the sole criterion for judging whether the case falls within the category of "rarest of rare cases", he has argued that the accused has committed ghastly and gruesome murder of three hapless and helpless persons without any rhyme or reason and, therefore, death sentence imposed on the accused on the basis of the principle laid down in the decisions which are discussed by the learned trial Judge should be upheld by this Court. According to him, the mitigating and/or aggravating features surrounding murder of rohit, Shashiben and Bavri Sanyasi Gonda have been taken into consideration by the learned trial Judge and having regard to the manner in which the three persons were murdered, death sentence imposed on him should be confirmed by this Court. "" (3) In the alternative he has further argued that if this Court comes to the conclusion that this is not a "rarest of rare" case and, therefore, death sentence imposed on the accused deserves to be commuted to life imprisonment, the directions given by the Supreme Court in SUBASH CHANDER v/s. KRISHAN LAL AND OTHERS, (2001) 4 SCC 458 should be followed and a direction should be given that the accused shall not be entitled to any commutation or premature release under the Code, Prisoners act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions, and shall spend his entire life in the prison, in view of demoniacal manner in which murder of three innocent persons was committed by the accused. "" (4) Lastly, it is submitted that no case is made out by the accused for commutation of death sentence to life imprisonment and, therefore, the appeal should be dismissed and the Confirmation case should be allowed. " ( 7 ) THIS Court has considered the submissions advanced by Ms. "" (4) Lastly, it is submitted that no case is made out by the accused for commutation of death sentence to life imprisonment and, therefore, the appeal should be dismissed and the Confirmation case should be allowed. " ( 7 ) THIS Court has considered the submissions advanced by Ms. Banna Dutta, learned advocate of the accused and Mr. K. P. Raval, learned APP for the State of Gujarat at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and reread by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with confirmation cases, this Court has examined the entire evidence on record for itself independently of Sessions Court and examined arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether it was the accused and none else who has committed the murder of three persons. ( 8 ) SO far as unnatural death of deceased Rohit, Shashiben and Bavri Sanyasi gonda is concerned, there is clinching evidence on record to come to the conclusion that all these persons died unnatural death because of the burn injuries received by them. In this connection, we have independently examined the evidence on record. " (1) In order to prove that all these three persons died unnatural death, the prosecution has relied upon evidence of p. W. 1, Dr. Shailesh Hasmukhbhai Zaveri, ex. 10, which is at page 40 of the compilation, who performed autopsy on the dead body of the three persons i. e. , Rohit, shashiben and Bavri Sanyasi Gonda. He has, inter alia, testified that on 10. 9. 2002 he was on duty as Tutor of Forensic Medicines and toxicology Department in New Civil Hospital, surat. He has performed autopsy on the dead body of Rohit, Shashiben and Bavri Sanyasi gonda and issued autopsy reports which are at Exhs. 12, 15 and 18 of Rohit, Shashiben and Bavri Sanyasi Gonda respectively. A perusal of his oral testimony at Ex. 10 and the autopsy reports at Exhs. 12, 15 and 18, clearly establishes that deceased Rohit, shashiben and Bavri Sanyasi Gonda had received deep bum injuries over whole of their body. 12, 15 and 18 of Rohit, Shashiben and Bavri Sanyasi Gonda respectively. A perusal of his oral testimony at Ex. 10 and the autopsy reports at Exhs. 12, 15 and 18, clearly establishes that deceased Rohit, shashiben and Bavri Sanyasi Gonda had received deep bum injuries over whole of their body. Ex. 12, autopsy report in respect of deceased Rohit clearly shows that superficial to deep burns were present over the whole body. Total surface area was burnt to 100%. Burnt areas at places show redness. Whole body was covered with black soot and the cause of death was shock due to burns. Ex. 15, autopsy report in respect of deceased Shashiben, clearly shows that dermo epidermal burn was present all over the body except back of abdomen and sole. Base of the burnt area was red in colour. Cuticle peeled off at places, unpeeled area showed blackening. All body hairs including left temporal occipital and top of head, eye brows, eye lashes, maxilla, pubic hairs were burnt. Kerosene and like smell perceived. Approximate area of burn was 85-90% and the cause of death was shock due to burns caused by fire. Ex. 18, autopsy report in respect of deceased Bavri Sanyasi Gonda, clearly shows that (1) there were epidermal bums over right cheek in an area of 2x3cm and both lips (2) dermo epidermal burn was present over both hands, forearm and arms, both legs from lower third of thigh to ankle, left side of front of chest, front of lower chest and front of abdomen, right lateral side of chest and abdomen and the cause of death was septicemia due to burns. "" (2) In view of the aforesaid evidence of P. W. 1, Dr. Shailesh Hasmukhbhai Zaveri, ex. 10, which is at page 40 of the compilation, and the autopsy reports at Ex. 12, 15 and 18, there is no manner of doubt that all the deceased persons had received burn injuries and they died unnatural death and, therefore, the prosecution has clearly established that rohit, Shashiben and Bavri Sanyasi Gonda have died unnatural death due to burn injuries. 12, 15 and 18, there is no manner of doubt that all the deceased persons had received burn injuries and they died unnatural death and, therefore, the prosecution has clearly established that rohit, Shashiben and Bavri Sanyasi Gonda have died unnatural death due to burn injuries. " ( 9 ) HAVING held that Rohit, Shashiben and Bavri Sanyasi Gonda died unnatural death due to burn injuries, following two questions fall for determination of this Court:" (i) Whether the prosecution has established that Rohit, Shashiben and Bavri sanyasi Gonda had died a homicidal death due to burn injuries?"" (ii) If the answer to question (i) is in the affirmative, whether the prosecution has established that the accused was the author of the said burn injuries sustained by the three deceased persons?" ( 10 ) SO far as homicidal death of the deceased persons is concerned, it is not seriously assailed by the learned advocate of the accused who appeared before the trial court. However, Ms. Banna Dutta, learned advocate of the accused, has argued that deceased Shashiben was mentally retarded and in past also she had tried to commit suicide by setting herself ablaze and, therefore, possibility that this time she must have succeeded in committing suicide along with her minor child Rohit and Bavri Sanyasi gonda who came to rescue them has also received burn injuries and died, cannot be ruled out. ( 11 ) AS per the prosecution case, deceased Rohit, Shashiben and Bavri Sanyasi gonda died homicidal death on receiving burn injuries and the accused is the author of the said burn injuries as he set them on fire after sprinkling kerosene upon them. ( 12 ) TO prove the complicity of the accused, the prosecution has mainly relied upon two dying declarations of two deceased persons i. e. , Shashiben and Bavri Sanyasi gonda, recorded by the Executive Magistrate and by the Police Officer and also the oral dying declaration of deceased Shashiben before P. W. 8, Subhash Laxman Behara, who has been examined at Ex. 47 as well as the account of the eye witnesses to the incident in question. ( 13 ) BEFORE delving to the evidence in the form of dying declarations made by the deceased, we may first deal with the oral evidence of P. W. 5, Manglu Handu Behara, the complainant, whose oral testimony is recorded at Ex. 47 as well as the account of the eye witnesses to the incident in question. ( 13 ) BEFORE delving to the evidence in the form of dying declarations made by the deceased, we may first deal with the oral evidence of P. W. 5, Manglu Handu Behara, the complainant, whose oral testimony is recorded at Ex. 41, at page 98 of the compilation. He has, inter alia, testified that he along with his wife Shashiben, daughter leelandri, son Rohit and father Handu behara, was staying in a hut at Tulsinagar, surat. On the day of the incident, it was a festival of Lord Ganesh. Prior to three months of the incident, the accused tried to develop illicit relation with his wife shashiben and on Shashiben informing him about this incident, he asked the accused about this and at that time the accused apologized to him and Shashiben for the said incident. The accused had beaten Shashiben and, therefore, he was removed from his house. On the day of the incident, when he went to bring idol of Lord Ganesh, a person informed him that the accused had set his wife and son on fire and, therefore, he rushed to his house where he saw both of them in a burnt condition. His wife was alive but his son had died. He, thereafter took both of them to hospital. In the hospital he came to know that one person had tried to rescue his wife and at that time the accused sprinkled kerosene on him and ablaze him also and subsequently during treatment that person had also died. He has further testified that prior to this incident, his son Rohit was admitted to hospital as he had some respiratory problem and during that period his wife had become mad-like because of hunger. At that time also the accused had beaten her. He has filed the complaint in respect of the incident before Umra Police Station, Surat against the accused for commission of offence punishable under Section 302 of the IPC. He has identified the accused sitting in the court. In his cross-examination he has testified that he knows Hindi language as well as Oria Language. He has further stated that prior to the incident, accused had tried to outrage the modesty of his wife shashiben and the accused had also beaten her on 2-3 occasions. He has identified the accused sitting in the court. In his cross-examination he has testified that he knows Hindi language as well as Oria Language. He has further stated that prior to the incident, accused had tried to outrage the modesty of his wife shashiben and the accused had also beaten her on 2-3 occasions. His complaint was recorded in the hospital. He has denied the suggestion made by the defence with regard to the allegation of illicit relations his wife had with his neighbour, Panchanan. ( 14 ) ON careful reappreciation of the evidence of P. W. 5, Mangal Handu Behara and his complaint at Ex. 42, it becomes evident that accused had an evil eye on deceased shashiben, the wife of the complainant, and he had also tried to outrage her modesty prior to the incident in question and had also beaten her. It may be noted that the complainant is the brother of the accused and he has no reason to falsely implicate his brother, the accused, in a ghastly crime. It is true that the complainant is not an eye witness to the incident. However, the clinching evidence in the form of his oral testimony and the complaint cannot be thrown overboard merely on the ground that he was not an eye witness to the incident. Therefore, according to us, the evidence of p. w. 5 is trustworthy, reliable and free from doubt and reliance can safely be placed upon his oral testimony to prove the complicity of the accused for committing murder of rohit, Shashiben and Bavri Sanyasi Gonda. ( 15 ) HAVING noticed the evidence of the complainant, we propose to re-examine the dying declarations made by both the deceased persons i. e. , Shashiben and Bavri sanyasi Gonda before the Executive magistrate as well as the Police Officer. ( 16 ) BUT, before adverting to the actual evidence on record in the form of dying declaration made by the two deceased persons before the Executive Magistrate as well as the Police Inspector, it is required to be appreciate as to what is the law on appreciation of evidence of dying declaration. The law on this point is now well settled by catena of decisions of the Supreme Court. 16 (A ). The Supreme Court in the case of SMT. The law on this point is now well settled by catena of decisions of the Supreme Court. 16 (A ). The Supreme Court in the case of SMT. PANIBEN V/s. STATE OF gujarat, REPORTED IN AIR 1992 SC 1817 has laid down the principles governing dying declarations by referring to several previous judgments which can be summed up as under:" (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (MANNU raja V/s. STATE OF U. P. , (1976) 2 SCR 764 = AIR 1976 SC 2199 ). "" (ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration (STATE OF U. P. , V/s. RAM sacrar YADAV, AIR 1985 SC 416 ; ramavati Devi V/s. State of Bihar. AIR 1983 sc 164 ). "" (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration (RAM CHANDRA reddy VS. PUBLIC PROSECUTOR. AIR 1976 SC 1994 ). "" (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence (RASHEED beg V/s. STATE OF MADHYA PRADESH (1974) 4 SCC 264 = AIR 1974 SC 332 ). "" (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected (KAKE SINGH V/s. STATE of M. P. , AIR 1982 SC 1021 ). "" (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (RAM MANORATH V/s. STATE OF U. P. . 1981 SCC (CRI.) 581 ). "" (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected (STATE OF MAHARASHTRA V/s. KRISHNAMURTHI LAXMIPATI NAIDU, air 1981 SC 617 . "" (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (SURAJDEO OZA v/s. STATE OF BIHAR, AIR 1979 SC 1505 ). "" (ix) Normally, the Court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. On the contrary, the shortness of the statement itself guarantees truth (SURAJDEO OZA v/s. STATE OF BIHAR, AIR 1979 SC 1505 ). "" (ix) Normally, the Court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make dying declaration, the medical opinion cannot prevail (NANAHAU RAM V/s. STATE, AIR 1988 SC 912 ). "" (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (STATE OF U. P. , V/s. MADAN mohan. AIR 1989 SC 1519 ). ""16 (B ). The Supreme Court in its later decisions in the case of STATE OF karnataka V/s. SHARIFF, (2003) 2 SCC 473 , has held that dying declaration need not necessarily be recorded by a Magistrate. Statement of deceased recorded by police personnel in hospital, though a Magistrate could have been called to record the same is not sufficient to discard the dying declaration if the same is found to be otherwise trustworthy. ""16 (C ). In the case of LAXMAN V/s. STATE OF MAHARASHTRA. (2002) 6 SCC 710 , the Supreme Court has held that where the medical certificate indicated that the declarant was conscious, it was indeed a hyper-technical view to say that there was no certification as to fitness of state of mind of the declarant, more so, when the fitness of the declarants state of mind was proved by the testimony of the Magistrate who had recorded the dying declaration. ""16 (D ). Lastly, in the case of GAFFAR badshaha PATHAN V/s. STATE OF maharashtra, 2005 AIR SCW 3264, the supreme Court has ruled that dying declaration could not be rejected on the ground that it does not contain endorsement of doctor of fitness of lady to make statement as certificate of doctor only shows that she was in conscious state. ""16 (E ). ""16 (E ). Keeping in forefront the law laid down by the Supreme Court in the above referred to judgments more particularly in the case of Smt. Paniben (supra) wherein previous judgments of the supreme Court have been quoted and other three judgments of the Supreme Court referred to in sub-paras 16 (B), 16 (C) and 16 (D) herein above deciding the law of appreciation of evidence of dying declaration, now we may advert to the actual evidence on record in the form of dying declarations made by the two deceased persons before two authorities i. e. , the Executive Magistrate and the Police Inspector to find out the guilt of the accused. " ( 17 ) IN this connection, the prosecution has examined P. W. 2, Revabhai machabhai Chaudhari, Executive Magistrate who recorded dying declaration of deceased shashiben. His oral testimony is recorded at Ex. 22 and it is on page 71 of the compilation. He has testified that on 10. 9. 2002 he was on duty as Deputy mamlatdar and Executive Magistrate, Surat city. At about 8. 45 P. M. , he received a yadi from Umra Police Station for recording dying declaration of Shashiben, wife of Manglu handu. He signed on the yadi which is on record at Ex. 24. On receipt of the yadi, he immediately went to the hospital and met the patient Shashiben who was conscious. At 9. 15 P. M. , he obtained endorsement of the doctor who was on duty, on the said yadi, in this regard. Thereafter he went to the ward where Shashiben was admitted for recording her dying declaration. He removed all the relatives of Shashiben and thereafter introduced himself to her as the Executive magistrate and subsequently asked her to narrate about the incident. He had talked to Shashiben in Hindi Language. Since shashiben was speaking in Oria Language which he could not understand, he kept Ram behara Balram Behara as interpreter. He has informed Ram Behara Balram Behara that the reply given by Shashiben in Oria language shall be translated into Hindi so that he can record her statement in Gujarati language. When he asked her name through interpreter, she told that her name is Shashi. She had also stated that name of her husband is Mangal. Her age was 27 years and she was doing household work. When he asked her name through interpreter, she told that her name is Shashi. She had also stated that name of her husband is Mangal. Her age was 27 years and she was doing household work. On being asked she had further replied that she was in hospital. On being inquired about the incident, she had replied that her younger brother-in-law Bhagvan sprinkled kerosene on her and set her on fire. On being inquired why the accused sprinkled kerosene on her, she had replied that accused came from outside and bolted the door from inside and thereafter sprinkled kerosene on her and set her on fire. Revabhai Chaudhari has further testified that he has started recording dying declaration at 9. 18 P. M. , and completed it at 9. 35 P. M. , and has obtained the impression of the toe of the right foot of injured Shashiben as both her hands were totally burnt and skin was peeled off. He has produced the original dying declaration of Shashiben at Ex. 2 5. " (1) It may be noted that this witness is Cross-examined by the learned advocate of the accused at length. During the cross-examination, nothing substantial has been brought out which impeaches the credibility of his testimony. Therefore, there is no reason to disbelieve the oral testimony of P. W. 2, Revabhai Machabhai Chaudhari, executive Magistrate and the dying declaration of deceased Shashiben, recorded by him, at Ex. 25. " ( 18 ) IT is also the case of the prosecution that during the course of investigation, P. W. 17, Babulaj Veljibhai ramani, Police Inspector, Umra Police station, whose oral testimony is recorded at ex. 64, which is at page 168 of the compilation, has recorded statement of deceased Shashiben which has become her dying declaration as Shashiben has died subsequent to giving her statement before the Police Inspector. " (1) In this connection, adverting to the evidence of P. W. 17, Babulal Veljibhai ramani, which is recorded at Ex. 64, it is seen that he has, inter alia, testified that he has recorded statement of Shashiben as narrated by her. She has stated before him that she was residing with her husband and two children, father-in-law and younger brother-in-law, who is the accused. 64, it is seen that he has, inter alia, testified that he has recorded statement of Shashiben as narrated by her. She has stated before him that she was residing with her husband and two children, father-in-law and younger brother-in-law, who is the accused. She has further stated before him that since her marriage, the accused was not keeping good relations with her and quarreling with her on trifling issues. However, at the persuasion of her husband and her father-in-law she was not meddling into the routine affairs of the accused. Prior to one month of the incident, her son Rohit had pneumonia fever and therefore he was admitted in Civil Hospital, surat where he remained as indoor patient for 10-12 days. At that time as saline dripping was required to be administered to the child, the accused was asked to keep a watch over the child so as to smoothen the process of dripping of saline. On hearing this, the accused got excited and gave 2-3 slaps to her. Her husband was present at that time and he saved her from further beating. Prior to four days of the incident, the accused told her husband to go to his native place with her. At that time she asked the accused "was he her husband to tell her to go to native place". At this point of time also the accused tried to sprinkle kerosene on her but her husband and her father-in-law intervened and snatched away the kerosene can away from him and thereafter the accused was removed from the house. She had further stated before P. W. 17 that on the day of the incident it was a festival of Lord ganesh and her husband along with residents of Tulsinagar went to bring idol of Lord ganesh. The accused at that time came in the house and bolted the door from inside and beaten her. At that time some lady raised shouts from outside. Thereupon the accused sprinkled kerosene on her and her son and set them on fire. People who gathered outside the house broke open the door and one person entered the house. The accused at that time came in the house and bolted the door from inside and beaten her. At that time some lady raised shouts from outside. Thereupon the accused sprinkled kerosene on her and her son and set them on fire. People who gathered outside the house broke open the door and one person entered the house. It was also stated by her before P. W. 17, Babulal veljibhai Ramani, that the said person who entered the house was Bavri Sanyasi Gonda and he was working as a cook in a mess and he tried to save her as well as her child and at that time the accused sprinkled kerosene on him also and set him on fire. The said statement in the form of dying declaration is produced at Ex. 66. There is no manner of doubt that the statement of the deceased recorded by the Police Inspector during the course of investigation is also a dying declaration within the meaning of section 32 of the Evidence Act. 18. 2. A conjoint reading of oral testimony of P. W. 17, Babulal Veljibhai ramani, Police Inspector, at Ex. 64 and Ex. 66, statement of deceased Shashiben which has become her dying declaration, there is no reason to discard the same as they are trustworthy, reliable and inspire confidence. " ( 19 ) THERE are two dying declarations of deceased Shashiben, one recorded by p. W. 2, Revabhai, Executive Magistrate, which is on record at Ex. 25 and another dying declaration recorded by P. W. 17, babulal Veljibhai Ramani, P. I. , which is on record at Ex. 66. A conjoint reading of the oral testimony of P. W. 2, Revabhai Machabhai chaudhari, Executive Magistrate, at Ex. 22 and the dying declaration of deceased shashiben recorded by him which is on record at Ex. 25 as well as the oral testimony of P. W. 17, Babulal Veljibhai Ramani, Police inspector, Umra Police Station and investigating officer, at Ex. 64 and the dying declaration of Shashiben recorded by him which is on record at Ex. 66, according to this Court, there is no discrepancy at all in both the said dying declarations. The oral testimony of both the witnesses as well as two dying declarations recorded by them corroborate each other. 64 and the dying declaration of Shashiben recorded by him which is on record at Ex. 66, according to this Court, there is no discrepancy at all in both the said dying declarations. The oral testimony of both the witnesses as well as two dying declarations recorded by them corroborate each other. Therefore, there is no reason to disbelieve the said piece of evidence as it is of sterling quality and reliance can safely be placed upon the same to come to the conclusion that the deceased shashiben as well as Rohit died a homicidal death due to burn injuries and the accused is the author of the said burn injuries sustained by both of them as he had sprinkled kerosene on both of them and set them on fire. ( 20 ) SO far as the dying declaration of deceased Bavri Sanyasi Gonda, who died of the burn injuries is concerned, his statement was also recorded by the Executive magistrate. In this connection, prosecution has examined P. W. 4, Bhagvanbhai khanabhai, Executive Magistrate, whose oral testimony is on record at Ex. 37, which is at page 94 of the compilation. He has testified that on 10. 9. 2002 he was working as Circle officer and was holding additional charge of executive Magistrate. He received a yadi from Umra Police Station for recording dying declaration of Bavri Sanyasi Gonda. He has produced the said yadi at Ex. 38. He went to g-1 ward at New Civil Hospital, Surat and contacted the concerned doctor and informed him that he has come for recording the dying declaration of Bavri Sanyasi Gonda. The doctor took him to the patient. He asserted from the concerned doctor about the conscious condition of the patient and also asserted from the patient about his conscious condition and after satisfying that the patient was in a conscious state he started recording his dying declaration at 2. 25 hours. He informed the patient about his status and he also verified that the patient was knowing hindi Language. He, therefore, asked all the questions in Hindi Language to which answers were also given by the patient in hindi Language. The questions and answers were recorded translating the same into gujarati Language. On being asked his name he has given answer that his name is Bavri Sanyasi gonda. His age was told to be 55 years. He, therefore, asked all the questions in Hindi Language to which answers were also given by the patient in hindi Language. The questions and answers were recorded translating the same into gujarati Language. On being asked his name he has given answer that his name is Bavri Sanyasi gonda. His age was told to be 55 years. He was working as cook in a mess. He was residing in a hut in Tulsinagar area, Surat. He stated that he was burnt. On further inquiry he stated that there was quarrel between the accused and the wife of Manglu handu Behara, who was residing adjacent to his house. The door was bolted from inside and therefore he broke open the door and entered in the house. He saw the accused beating the wife of Manglu Handu behara. She was set on fire by the accused and while attempting to save her, he also received burn injuries. The witness has also obtained the right thumb impression of Bavri sanyasi Gonda and completed recording of the dying declaration at 2. 35 hours. This witness has produced the original dying declaration of Bavri Sanyasi Gonda at Ex. 39. It may be noted that this witness was cross-examined at length by the learned advocate of the accused and he withstood the test of cross-examination and nothing substantial could be brought out from his cross-examination which could be of any help to the defence. ( 21 ) IT is also the case of the prosecution that when the investigation was afoot, P. W. 17, Babulal Veljibhai Ramani, police Inspector, whose testimony is recorded at Ex. 64, which is at page 168 of the compilation, has also recorded the statement of deceased Bavri Sanyasi Gonda which has become his dying declaration as he has died subsequent to giving his statement before the Police Inspector. " (1) In this connection, now once again adverting to the evidence of P. W. 17, babulal Veljibhai Ramani, Police Inspector, ex. 64, it is seen that he has, inter alia, testified that he has recorded statement of bavri Sanyasi Gonda on 10. 9. 2002 as narrated by him. He stated that on the day of the incident, it was a festival of Lord ganesh and he was present near the stage erected on the road in Tulsinagar area for installation of idol of Lord Ganesh. 9. 2002 as narrated by him. He stated that on the day of the incident, it was a festival of Lord ganesh and he was present near the stage erected on the road in Tulsinagar area for installation of idol of Lord Ganesh. At that time, P. W. 7, Prabhavatiben Guriddin Gupta, ex. 46, raised shouts and he inquired with her as to what had happened. On inquiry he was told that the accused was beating his sister-in-law, deceased Shashiben in her house after bolting the door from inside. He therefore went to the house of Manglu. At that time, Prabhavatiben and neighbours were present. He saw through the gap of the doors that the accused was sprinkling kerosene on his sister-in-law and nephew and setting them on fire. On seeing it, by force he broke open the door and went inside to save them. The accused sprinkled kerosene upon him and set him also on fire. Thereafter the neighbours took him to hospital. "" (2) This witness also testified that he had explained to Bavri Sanyasi Gonda in hindi Language and the answers were given in Hindi Language and the questions and answers were translated into Gujarati language and recorded. This witness has produced the statement of Bavri Sanyasi gonda recorded by him at Ex. 67. "" (3) This witness was also cross-examined by the learned advocate of the defence at length but nothing substantial could be brought out from the oral testimony which would impeach its credibility. "" (4) It may be appreciated that statement recored by police personnel during the course of investigation is admissible in evidence under Section 32 of the Evidence Act. " ( 22 ) A conjoint reading of oral testimony of P. W. 4, Bhagwanbhai khanabhai, Executive Magistrate, whose oral testimony is recorded at Ex. 37, which is at page 94 of the compilation, who recorded the dying declaration of deceased Bavri Sanyasi gonda, the dying declaration of deceased bavri Sanyasi Gonda which is on record at ex. 39 at page 97 of the compilation, oral testimony of P. W. 17, Babulal Veljibhai ramani, Police Inspector, Umra Police station, at Ex. 64 which is at page 168 of the compilation and the statement of Bavri sanyasi Gonda recorded by him which is on record at Ex. 39 at page 97 of the compilation, oral testimony of P. W. 17, Babulal Veljibhai ramani, Police Inspector, Umra Police station, at Ex. 64 which is at page 168 of the compilation and the statement of Bavri sanyasi Gonda recorded by him which is on record at Ex. 67, according to this court, there is no discrepancy on material aspects of both the dying declarations recorded by them as well as the oral testimony of both these witnesses. They give corroboration to each other except on one aspect. In the dying declaration of deceased Bavri Sanyasi gonda recorded by the Executive Magistrate, deceased Bavri Sanyasi Gonda had not stated that he was burnt by the accused. He had stated that he received burn injuries while trying to save deceased Shashiben whereas in the dying declaration recorded by the police Inspector he has in unequivocal terms stated that the accused set him on fire by sprinkling kerosene on him. However, the facts remain that both the dying declarations are of sterling quality and, therefore, there is no reason to disbelieve the said piece of evidence and reliance can safely be placed upon the same to come to the conclusion that deceased Bavri Sanyasi Gonda died homicidal death due to burn injuries and the accused was the author of the said burn injuries as the accused had sprinkled kerosene on him and set him on fire. ( 23 ) THIS is the sum and substance of the evidence of the dying declarations of two deceased persons i. e. , Shashiben and bavri Sanyasi Gonda recorded before two independent authorities i. e. , Executive magistrate and Police Inspector. They are of sterling quality and, therefore, in view of the discussion made in the foregoing paragraphs, they are reliable and trustworthy and from the said evidence complicity of the accused for commission of murder of three persons is amply proved and established. ( 24 ) AT this stage, it is also required to be appreciated that there is also an oral dying declaration made by deceased shashiben before P. W. 8, Subhash Laxman behara, who was running grocery shop in tulsinagar, whose oral testimony is recorded at Ex. 47, which is at page 109 of the compilation. ( 24 ) AT this stage, it is also required to be appreciated that there is also an oral dying declaration made by deceased shashiben before P. W. 8, Subhash Laxman behara, who was running grocery shop in tulsinagar, whose oral testimony is recorded at Ex. 47, which is at page 109 of the compilation. He has, inter alia, testified that on the day of the incident when he was in his shop he came to know that the accused after sprinkling kerosene on Shashiben, her son Rohit and Bavri Sanyasi Gonda set them on fire. Therefore, he and one Lalit took deceased Shashiben to hospital in an auto rickshaw and at that time she was alive. He asked her about the incident and she replied that when she was in the house the accused came in the house and set her and her child on fire after sprinkling kerosene on them. He also came to know that Bavri Sanyasi gonda tried to save her but the accused had sprinkled kerosene on him and set him also on fire. He has further testified that the minor child immediately succumbed to the burn injuries. Injured Shashiben succumbed to the burn injuries on the next day whereas injured Bavri Sanyasi Gonda died after 3-4 days. " (1)This witness has also successfully withstood the test of cross-examination and nothing helpful to the defence could be brought out. "" (2)According to the provisions of section 32 of the Evidence Act, oral dying declaration made by the deceased is also admissible in evidence. Therefore, reliance can be placed on the evidence of this witness also to come to the conclusion that all the three deceased persons died because of the burn injuries caused to them as a result of the act of the accused of sprinkling kerosene on them and setting them on fire. " ( 25 ) IT is also the prosecution case that the alleged incident was witnessed by two persons. Therefore, now let us notice the account of the eye witnesses about the incident in question. ( 26 ) IN this connection, the prosecution has examined P. W. 7, prabhayatiben Guriddin Gupta, whose testimony is recorded at Ex. 47 which is at page 107 of the compilation. She has, inter alia, testified that she is residing int a hut which is a rented premises, in Tulsinagar area. ( 26 ) IN this connection, the prosecution has examined P. W. 7, prabhayatiben Guriddin Gupta, whose testimony is recorded at Ex. 47 which is at page 107 of the compilation. She has, inter alia, testified that she is residing int a hut which is a rented premises, in Tulsinagar area. Manglubhai, his wife, children, father and accused were residing adjacent to her house. The incident had taken place prior to two years. On that day it was Ganesh festival. Her husband and Mangal went to bring Idol of Ganesh and she was preparing food in her house. At that time as she heard scream of the wife of Manglu, she went towards her house. She found that the door of her house was closed. On knocking at the door it was opened by the accused who was inside. One person came from one side whose name is not known to her. At that time one lady came outside the house in burnt condition but she did not make any inquiry with her. Thereafter her husband came and took her to the hospital and the said lady succumbed to the injuries on the next day. She also further testified that the person who came to save deceased Shashiben also died because of the burn injuries. Son of Manglu who was sleeping with her mother also died on sustained burn injuries. This witness also was subjected cross-examination of the defence but she withstood the test of cross-examination successfully and the learned advocate of the accused in the trial court could not bring out anything substantial from his testimony in support of the defence. ( 27 ) THEREAFTER the prosecution examined P. W. 9, Anuben Heena Dathia behara, at Ex. 48 which is at page 111 of the compilation. She has inter alia testified that she is residing in Tulsinagar area at the house of Bansiram Kahar. She knows manglu and his wife Shashiben. Shashiben died prior to two years, on the day of ganapati festival. This witness deposed that when she was sitting on the lane, Shashiben was sleeping in her house. The accused awakened her and beaten her and thereupon shashiben raised shouts and this witness who was present at an earshot went to the house of Shashiben and knocked at the door as the door was closed. At that time another woman also came there. The accused awakened her and beaten her and thereupon shashiben raised shouts and this witness who was present at an earshot went to the house of Shashiben and knocked at the door as the door was closed. At that time another woman also came there. One Bavri Khandva who was a cook came there and broke open the door. At that time the accused set shashiben and her son on fire by sprinkling kerosene on them. While Bavri was trying to save Shashiben and her son, the accused also sprinkled kerosene on him and set him also on fire. After the incident all the three have died. This witness was also cross-examined by the learned advocate of the defence at length but nothing substantial could be brought out on record. ( 28 ) IT may be appreciated that in the evidence of P. W. 7, Prabhavatiben guriddin Gupta, Ex. 46 and P. W. 9, Anuben heena Dathia Behara, Ex. 48, there are minor discrepancies but that fact itself cannot be sufficient to discard their testimony as a whole. The fact remains that they are eye witnesses to the incident and as per their evidence, accused sprinkled kerosene on all the three persons i. e. , Shashiben, her son rohit and Bavri Sanyasi Gonda and set them on fire and on account of the burn injuries received by them they succumbed to the same. ( 29 ) IT is the contention of the learned advocate of the accused that P. W. 3, Gopalbhai virubhai Behara, a panch witness in respect of the contents of the panchnama of the scene of offence, whose evidence is recorded at Ex. 26, which is at page 77 of the compilation has not supported the case of the prosecution with regard to the panchnama and has turned hostile and therefore the prosecution case cannot be relied upon has absolutely no merit and substance. It is well settled that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over-board as unreliable. It must be realized that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It is well settled that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over-board as unreliable. It must be realized that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasised that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of police officers, in theory, it would be giving a right of veto to the panchas so far as that question of culpability of an accused is concerned, which is not permissible in criminal jurisprudence. It is well settled that without good ground being pointed out, testimony of police officer, if otherwise found to be true and dependable, cannot be discarded by Court on the ground that he is a police officer. On the facts and in the circumstances of the case, this Court finds that testimony of P. W. 17, Babulal veljibhai Ramani, Ex. 64, is not only inspiring confidence, but, gets corroboration from the other evidence on record and from his evidence the panchnama is proved. Therefore, the said panchnama can be relied upon. Besides this also the contents of the panchnama of the scene of offence is hardly a relevant factor to decide the complicity of the accused in committing murder. According to this court, when there are consistent evidence in the form of dying declarations made by the deceased persons before the executive Magistrate as well as the Police officer and oral dying declaration before p. W. 8, Subhash Laxman Behara, Ex. 47, and evidence of two eye witnesses i. e. , P. W. 7, prabhavatiben Guriddin Gupta, Ex. 46 and p. W. 9, Anuben Heena Dathia Behara, Ex. 48, this contention pales into insignificance and meets with the logic end of rejection. ( 30 ) THE contention that P. W. 10, santram Madhuri, a neighbour of deceased shashiben whose oral testimony is recored at Ex. 49, which is at page 113 of the compilation as well as P. W. 11, Handu Bhura behara, father of the accused, whose oral testimony is recorded at Ex. ( 30 ) THE contention that P. W. 10, santram Madhuri, a neighbour of deceased shashiben whose oral testimony is recored at Ex. 49, which is at page 113 of the compilation as well as P. W. 11, Handu Bhura behara, father of the accused, whose oral testimony is recorded at Ex. 50, which is at page 115 of the compilation, have not supported the case of the prosecution and turned hostile and, therefore, the prosecution case cannot be believed, has also no substance. " (1) It is a common experience and the Court is also not unaware that when one of the family members commits a murder of another member of the same family, it would be very pathetic condition of the Karta of the family to depose against the family member who committed the crime. In the instant case P. W. 11, Handu bhura Behara is the father of the complainant as well as the accused. Besides this he is not an eye witness to the incident. He is a witness to the previous conduct of the accused which he has not supported while giving evidence. However, he has been confronted with his previous police statement which has been proved by the evidence of p. W. 17 Babulal Veljibhai Ramani, Police inspector, Umra Police Station and investigating officer, whose oral testimony was recorded at Ex. 64 which is at page 168 of the compilation. " ( 31 ) ON reappreciation, reanalysis, reevaluation and close scrutiny of the entire evidence on record, this Court finds that the complicity of the accused in murdering deceased Shashiben, Rohit and Bavri Sanyasi gonda is clearly established by the prosecution and no ground is made out by the learned advocate of the accused to interfere with the said finding of fact recorded by the learned trial Judge in para 34 of the impugned judgment. Therefore, the finding recorded by the learned trial Judge, according to this court, is just and proper. On over all appreciation of the evidence, we are satisfied that there is no infirmity or illegality in the reason assigned by the learned trial Judge in convicting the accused for commission of the triple murder. Therefore, the finding recorded by the learned trial Judge, according to this court, is just and proper. On over all appreciation of the evidence, we are satisfied that there is no infirmity or illegality in the reason assigned by the learned trial Judge in convicting the accused for commission of the triple murder. Suffice it to say that the learned trial Judge has given cogent and convincing reason for convicting the accused for commission of murder of Shashiben, her son Rohit and an innocent person who had no concern with the dispute between the accused and deceased Shashiben i. e. , Bavri sanyasi Gonda, and all of them died because of the burn injuries received by them on account of the beastly and brutal act of the accused, who had sprinkled kerosene on them and set them on fire. Ms. Banna Dutta, learned advocate for the accused, has not been able to convince us to take a view contrary to the view taken by the learned trial Judge. Further more, the ultimate conclusion and the resultant order of conviction recorded by the learned trial judge is found to be very imminent, just and proper and, therefore, it has to be upheld as according to us no other view or conclusion is possible on the facts and circumstances emerging from the record of the case except the view or conclusion reached by the learned trial Judge. ( 32 ) IN aforesaid view of the matter there is no doubt that all the deceased persons i. e. , Shashiben, her son Rohit and bavri Sanyasi Gonda died homicidal death because of the burn injuries received by them and the accused and the accused alone is the culprit who caused the burn injuries on them because he is the person who sprinkled kerosene on them and ignited them. ( 33 ) THIS brings the Court to consider as to whether the death sentence imposed on the accused deserves to be commuted to life imprisonment as pleaded by the learned advocate of the accused. As far as the quantum of sentence is concerned, this Court has given careful consideration in light of the submissions made by the learned advocates of either side. As far as the quantum of sentence is concerned, this Court has given careful consideration in light of the submissions made by the learned advocates of either side. As to what category a particular case would fall, depends invariably on varying facts of each case and no absolute rule for invariable application or yardsticks as a ready reckoner can be formulated. " (i) In the case of PANCHHI AND others V/s. STATE OF U. P. (1998) 7 SCC 177 , it has been held by the Supreme Court that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the rarest of rare cases as indicated in BACHAN SINGH V/s. STATE OF punjab (1980) 2 SCC 684 and that every murder being per-se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. As per the principles laid down in the said case, the intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation are also held to be relevant factors. "" (ii) In OM PRAKASH V/s. STATE of HARYANA, (1999) 3 SCC 19 , dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, the Supreme court has observed that the particular and peculiar facts and circumstances of each case should be properly balanced. Noticing the mentally depressed condition of the accused, it was held in the said case that the case was not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the fact that the accused was guilty of committing a gruesome act of a premeditated and well thought out murder. While striking a contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for wealth or women (neither for money such as extortion, decoity or robbery nor even for lust and rape) or an antisocial act involving kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills a number of persons nor was committed for power or political ambitions or as part of organized criminal activities. "" (iii) In the case of VASHRAM narshibhai RA-IAPARA V/s. STATE OF gujarat; AIR 2002 SC 2211 , despite the appellants economic condition and earnest attempt to purchase a house for family after raising loans, wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant and though they were all living together, continuous harassment and constant nagging affected mental balance of the appellant and such sustained provocation reached a boiling point resulting in causing death of his wife and four daughters. The Sessions Court imposed punishment of death. That was upheld by the High Court. It was noticed by the Supreme Court that the appellant though hailing from a poor family, had no criminal background and it was possible to get him rehabilitated because it could not be established that he was a menace to the society. Under the circumstances, the supreme Court partly allowed the appeal and modified the sentence of death into one of r. I. for life. "" (iv) In VINAYAK SHIVAJIRAO POL v/s. STATE OF MAHARASHTRA, (1998) 2 scc 233 , the accused suspecting fidelity of his wife killed her by strangulation. He cut off her head and thumbs. He threw the headless trunk and the head in two different wells and the thumbs at another place. Such a case was not held a rarest of rare case by the Supreme Court and, therefore, sentence of death awarded by the High Court was reduced to one of imprisonment for life. He cut off her head and thumbs. He threw the headless trunk and the head in two different wells and the thumbs at another place. Such a case was not held a rarest of rare case by the Supreme Court and, therefore, sentence of death awarded by the High Court was reduced to one of imprisonment for life. The principles governing imposition of death sentence have been laid down by the Supreme court in (A) LEHNA V/s. STATE OF haryana, (2002) 3 SCC 76 , (B) SARDAR khan V/s. STATE OF KARNATAKA, (2004) 2 SCC 442 AND (C) SIMON AND OTHERS v/s. STATE OF KARNATAKA, (2004) 2 SCC 694 . According to the Supreme Court, imposition of death sentence would be justified if facts are such that to award any punishment less than death sentence would shock the conscience of the Court and would be a mockery of justice. What is ruled by the Supreme Court in the above mentioned decisions is that nature of the crime and the accused should be considered, and aggravating as well as mitigating circumstances should be weighed in the context of facts and circumstances of the case before imposing death sentence. " ( 34 ) THE contention that the accused had sprinkled kerosene on an innocent person named Bavri Sanyasi Gonda who was not at all concerned with the dispute between the accused and deceased Shashiben and set him on fire and this act of the accused evinces how cruel and brutal he was at the time of commission of the offence and therefore the death sentence imposed on him should be confirmed by this Court, has no substance. Similarly, another contention that husband of deceased Shashiben has at the instance of deceased Shashiben removed the accused from their house and, therefore, the accused was revengeful to do away with her and her son and accordingly he committed triple murder and the way in which the murder was committed was ghastly, cruel, brutal, diabolic and dastardly in nature and, therefore, death sentence imposed on him should be confirmed by this Court, has also no substance. In this connection, it would be appropriate to refer to the decision of the supreme Court in the case of KRISHAN v/s. STATE OF HARYANA. AIR 1997 SC 2598 . In that case, the accused was already serving sentence of life imprisonment. In this connection, it would be appropriate to refer to the decision of the supreme Court in the case of KRISHAN v/s. STATE OF HARYANA. AIR 1997 SC 2598 . In that case, the accused was already serving sentence of life imprisonment. He was found guilty of committing another murder while he was released on parole. Felonious propensity of offender was made sole basis for awarding death sentence. On review of the facts, the Supreme Court has held that felonious propensity of offender cannot be made sole basis for awarding death sentence, and as it was found that case was not falling into category of rarest of rare cases, death sentence was commuted to one of life imprisonment. ( 35 ) THE contention that the learned trial Judge while imposing the death sentence has referred to and relied upon a decision of a Division Bench of this Court in the case of STATE OF GUJARAT V/s. SURENDRAPAL SHIVABALKPAL, reported IN 2004 (3) GLR 2468 and this court also should follow the principles laid down by this Court in the said reported decision and accordingly the death sentence imposed on the accused should be confirmed, also has no substance. The Division Bench of this court has confirmed the death sentence imposed on Surendrapal shivabalakpal by the learned trial Judge. The said decision was challenged by the accused (Surendrapal Shivabalakpal) before the supreme Court by filing Criminal Appeal No. 259 of 2004 which came to be decided by the Supreme court on 16. 9. 2004 which has been reported in (2005) 3 SCC 127. The said decision was challenged by the accused (Surendrapal Shivabalakpal) before the supreme Court by filing Criminal Appeal No. 259 of 2004 which came to be decided by the Supreme court on 16. 9. 2004 which has been reported in (2005) 3 SCC 127. The supreme Court, while dealing with the death sentence observed that the accused, aged 36 years at the time of occurrence, impecunious, a migrant labourer and there being no evidence that he had been involved in any other criminal case previously, it could not be said that he would be a menace to society in future, and no material has been placed on record to draw such a conclusion and held that it is not a rarest of rare case and death sentence was not warranted and hence death sentence was commuted to life imprisonment and, therefore, according to us, decision of the division Bench of this Court in the case of state OF GUJARAT V/s. SURENDRAPAL-SHIVABALKPAL, 2004 (3) GLR 2468 (supra) relied upon by the learned trial Judge while confirming death sentence on the accused cannot be made applicable to the facts of instant case. ( 36 ) IN the latest decision of the supreme Court in the case of RAMA subramanian V. STATE OF KERALA, 2005 AIR SCW 6291, the accused whose services were earlier terminated by deceased had killed her and her three children. The supreme Court in the said case observed that it is true that the crime committed by the accused was, no doubt, cruel and dastardly but since the circumstances under which the incident happened was not known and the accused deserves no mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9. 8. 1999. The accused was annoyed upon the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. Taking over all facts into consideration, the Supreme court did not think it proper to hold that it was one of the rarest of the rare cases where death sentence could be the only punishment and hence the sentence of death imposed on the accused was commuted to life imprisonment. Taking over all facts into consideration, the Supreme court did not think it proper to hold that it was one of the rarest of the rare cases where death sentence could be the only punishment and hence the sentence of death imposed on the accused was commuted to life imprisonment. ( 37 ) APPLYING the principles laid down by the Supreme Court in the above referred to judgments to the facts of the present case, according to this Court, there is no manner of doubt that the power of a Judge to determine appropriate sentence is based on the principle of proportionality so that punishment fits with the crime. However, the mitigating circumstances cannot be overlooked by the Court. In instant case, the accused was driven out of the house by the complainant, brother of the accused, at the instance of his wife, deceased Shashiben and, therefore, the accused was annoyed and an idea came to his mind to take revenge on shashiben and to fulfill that idea he sprinkled kerosene on her and also on her minor child who was sleeping beside her and set them on fire and when Bavri Sanyasi gonda came to their rescue, he sprinkled kerosene on him and also set him on fire. It may be noted that Bavri Sanyasi Gonda was not at all his target but as he tried to save Shashiben, the accused became furious and sprinkled kerosene on him and set him also on fire. ( 38 ) AT this stage, it is also required to be noted that the accused, while in prison, tried to commit suicide and, therefore, he was sent to Civil Hospital for treatment and at that time his dying declaration was recorded by P. W. 6, Thakorebhai Chunilal patel, Executive Magistrate, whose testimony is recorded at Ex. 43, which is at page 102 of the compilation. The said dying declaration of the accused is produced on record at ex. 45, which is at page 105 of the compilation. Scrutiny of oral testimony of p. W. 6, Thakorbhai Chunilal Patel, Executive magistrate and the dying declaration of the accused which is at Ex. 45, shows that the accused has inter alia stated in the said dying declaration that on 10. 9. 45, which is at page 105 of the compilation. Scrutiny of oral testimony of p. W. 6, Thakorbhai Chunilal Patel, Executive magistrate and the dying declaration of the accused which is at Ex. 45, shows that the accused has inter alia stated in the said dying declaration that on 10. 9. 2002 he had set his sister-in-law, Shashiben and his nephew Monti on fire and he was arrested in connection with the said offence and put in police lock-up. On 11. 9. 2002 at 7. 45 PM, while going to attend natural call, he tried to commit suicide by hanging. He tried to commit suicide after removing his shirt and by putting noose by it in his neck and tying the other end of his shirt on the grill of the window. He was, therefore, sent to Civil hospital for treatment In the said statement he has also stated that he has no quarrel with anybody. ( 39 ) FROM the aforesaid statement made by the accused, there is reason to believe that he was repenting for the crime committed by him and, therefore, we are of the opinion that he can be reformed after releasing from the jail on completion of life imprisonment and can be restored to society and it cannot be said that he would be a menace to the society in future since no material is placed before us to draw such a conclusion. ( 40 ) HAVING regard to the principles laid down by the Supreme Court in several reported decisions and more particularly in view of the fact that the accused is repenting for his act and he has no quarrel with anybody, this Court is of the opinion that death sentence imposed on him deserves to be commuted to one of the life imprisonment. ( 41 ) THE contention raised by the learned APP that if this Court is inclined to commute death sentence imposed on the accused to R. I. for life, direction should be given that the accused shall not be entitled to any commutation or premature release under the provisions of the Code, Prisoners act, Jail Manual or any other statutes or rules made for the purpose of grant of commutation or remissions and that the accused should be directed to undergo imprisonment for whole of the remaining period of his natural life, need not be accepted, having regard to the facts and circumstances of the case which have been narrated by this Court in earlier paragraphs of this judgment As observed by the supreme Court every murder per-se is brutal and, therefore, direction as sought for by the learned APP need not be given in instant case, more particularly, when it is not pointed out to us on behalf of the State that the accused, who is hailing from a poor family, migrated from Orissa and ekes out his livelihood by doing labour work has criminal background and that it would not be reasonably possible to get him rehabilitated, or that he would be a menace to the society. ( 42 ) SEEN in the above context, according to us, while upholding the conviction of the accused for commission of the offence punishable under Section 302 of the IPC for triple murder, it is also required to be held that this is not a rarest of the rare cases wherein death sentence imposed upon the accused could be the only punishment which is required to be confirmed. On the contrary, according to us, this is a fit case wherein the death sentence deserves to be commuted and modified into r. I. for life. ( 43 ) FOR the foregoing reasons, criminal Confirmation Case No. 2 of 2005 is dismissed whereas Criminal Appeal No. 421 of 2005 is partly allowed. Resultantly, conviction of the accused for commission of the offence punishable under section 302 of the IPC for committing triple murder is hereby confirmed and maintained. However, death sentence imposed on him for commission of murder of Shashiben, her minor child Rohit and bavri Sanyasi Gonda, is hereby commuted and modified into RI for life. Resultantly, conviction of the accused for commission of the offence punishable under section 302 of the IPC for committing triple murder is hereby confirmed and maintained. However, death sentence imposed on him for commission of murder of Shashiben, her minor child Rohit and bavri Sanyasi Gonda, is hereby commuted and modified into RI for life. Accordingly, Criminal Confirmation case No. 2 of 2005 and Criminal Appeal No. 421 of 2005 stand disposed of. Muddamal to be disposed of in terms of the directions given by the learned trial judge in the impugned judgment and order. .