P. S. BRAHME, J.:- These two matters present a dismal story of ill-fated man Manohar Matkari (victim) and his wife Meenabai (victim), who, with their son Akhilesh (also a victim), suffered homicidal death at the hands of appellant Sham @ Kishor Bhaskarrao Matkari, the real brother of victim Manohar Matkari, who was residing under his shelter. That is why, it is well said that the ways of providence are inscrutable and, therefore, even for the God, it is very difficult to fathom out. 2. These two appeals arise out of one and the same incident and also subject matter of challenge is the judgment and order passed by the learned 1st Ad hoc Additional Sessions Judge in Sessions Trial No.I60/200I dated 5th March, 2003, whereunder the appellant original accused Sham @ Kishor came to be convicted for the offences under sections 302 and 307 of the Indian Penal Code, having committed murders ofManohar, his wife Meena and son Akhilesh and attempted to commit murder of their daughter Monica and another son Vishwesh. In Criminal Appeal No.I83/ 2004, the order of conviction and sentence is under challenge, while in Criminal Appeal No.391/2003, preferred by the State, there is prayer ~)r enhancement of sentence and as such a prayer for awarding sentence of death for offence under section 302 of the Indian Penal Code. Therefore, both these appeals are disposed of by this common judgment. 3. The prosecution case, in brief, may be stated as follows: The accused/appellant Sham @ Kishor Matkari, being the real brother of victim Manohar, was residing with him in rented premises owned by one Pandurang Patil (P.W.3). Victim Manohar and his wife Meena were having three children, namely Akhilesh (one of the victims), Monica (P.W.7) - injured and Vishwesh (injured). The incident in question took place in the night intervening 28th and 29th June, 2001. Admittedly, the accused, who was residing with Manohar in the same house, was in the house at the time when the incident took place at night. Witness Dipak Thakur (P.W.1) is admittedly residing in the neighbourhood of victim Manohar in one of the premises owned by the witness Pandurang Daulat Patil, as a tenant at the relevant time. On the night of incident, at about 9.00 to 9.15 p.m., this witness Dipak Thakur. Witness Dipak Thakur (P.W.1) is admittedly residing in the neighbourhood of victim Manohar in one of the premises owned by the witness Pandurang Daulat Patil, as a tenant at the relevant time. On the night of incident, at about 9.00 to 9.15 p.m., this witness Dipak Thakur. when he came out of his house for collecting the clothes which were kept for drying, noticed that some quarrel was going on between the accused and his brother Manohar in their house. He heard the accused saying to his brother Manohar to beat him that day and thereafter he would see them. Since it was the dispute over the household matter, witness Dipak neglected it and as such as he remained in his house. 4. In the midnight at about 3.00 to 3.30 a.m., witness Dipak Thakur heard some hue and cry from the house of Manohar. He heard the cries of wife of Manohar. He heard a noise of beating and groaning of small child from the house of Manohar. He also noticed leakage of gas from the house of Manohar and he also had small of something burning in the house. He, therefore, went to call his landlord witness Pandurang Patil. When he went to the house of his landlord and knocked the door. Pandurang Patil came out of his house and then he told him that he heard shouts from the house of Manohar and that some quarrel was going on in the house. He also woke up one Choudhary, who was his next door neighbour and one Pitambar Choudhary, who was residing on the upper floor. He then along with his landlord proceeded towards the house of Manohar. That time, they saw the accused coming out of the house and when inquired, the accused told that three thieves had entered their house and· assaulted his brother, his wife and their children. This witness noticed that the hands and clothes of the accused were stained with blood. When they approached near the house of Manohar, they noticed smoke coming out of the house. Witness Pandurang Patil immediately phoned to the police. These persons did not see either the thieves or unknown persons at that time either in the house of Manohar of leaving the premises at the time. However, within ten minutes, the police arrived and took the accused to the hospital as he had sustained injury. Witness Pandurang Patil immediately phoned to the police. These persons did not see either the thieves or unknown persons at that time either in the house of Manohar of leaving the premises at the time. However, within ten minutes, the police arrived and took the accused to the hospital as he had sustained injury. The police also took all the three children of Manohar in police jeep to the hospital. In the morning when this witness entered the house, along with the Police Officers arrived there, they noticed that Manohar and his wife Meena were lying dead. Meenabai was burnt to some extent. They also noticed a square sized stone weighing about 25 kgs., so also a gas cylinder lying near the dead body of Meena. He narrated the incident to the police which was reduced into writing and treating that as First Information Report, vide Exhibit - 22, the offence was registered vide Cr. No.41/2001. 5. The Police Inspector Dilip Shankarwar (P.W.14), on receipt of telephonic message, immediately rushed to the place of occurrence. He saw the accused sitting by the side of water tank and having suffered bleeding injury on his head. When inquired, the accused disclosed that some 3 to 4 persons, during right, entered their house and assaulted him, his brother, his brother's wife and tried to bum her and after taking away household articles, they went away. Police Inspector Dilip Shankarwar, then sent the accused to the hospital for treatment. When he entered the house, he noticed that on the cot a boy aged about 8 to 9 years was lying in injured condition and as blood was oozing from his head, his clothes were stained with blood. He also noticed that on the floor of the house, brother of the accused, brother's wife and one boy and girl were lying in injured condition and in that, brother's wife was seen burnt partially while a stone of big size was found lying near her as also a gas cylinder. He then sent the injured boys and girl to Municipal Hospital Bhusaval. As he noticed that Manohar and his wife Meena were lying dead having injuries on their person, he conducted inquest of the dead bodies and sent them with Police Constable for post-mortem. He then sent the injured boys and girl to Municipal Hospital Bhusaval. As he noticed that Manohar and his wife Meena were lying dead having injuries on their person, he conducted inquest of the dead bodies and sent them with Police Constable for post-mortem. At the same time, he drew spot panchanama Exhibit-24 and thereunder seized the articles found lying including wooden rafter having stains of blood, so also big square sized stone lying by the side of dead body of victim Meena. 6. On 29-6-2001, P.I. Dilip Shankarwar recorded statements of witnesses Pandurang Patil and others. He also seized clothes of deceased Manohar and Meena vide seizure memo Exhibit- 36. The accused was admitted in Civil Hospital, Jalgaon. His nail clippings and blood sample were collected. The injured boy Akhilesh, who was shifted to Civil Hospital, Jalgaon, from Municipal Hospital, Bhusaval expired on 29th June, 200 I. So, during the course of investigation, his inquest was conducted and the dead body was sent to the Medical Officer for carrying out autospy on his dead body. On 1st July, 2001, the Investigating Officer seized clothes of deceased Akhilesh, injured Monica and Vishwesh under Panchanama Exhibit- 39. Injured Monica and Vishwesh were shifted to Civil Hospital, Jalgaon. Later on, both were shifted to a private hospital. The Investigating Officer got recorded their statements through the Executive Magistrate and thereafter both the injured were shifted to Ghati Hospital at Aurangabad. 7. The witness Murlidhar Sapkale, who was then Executive Magistrate, recorded statement of the accused vide Exhibit- 73. The same was relied upon by the prosecution as extra judicial confession. On 26th July, 2001, the Investigating Officer forwarded the property seized during the course of investigation to chemical analyser, Aurangabad for analysis with his forwarding letter. After receiving the report and on completing investigation, the chargesheet came to be filed in the Court of Judicial Magistrate, First Class, Bhusaval, who committed the case to the Court of Sessions. 8. Before the Additional Sessions Judge, Jalgaon, when the accused appeared, charge, vide Exhibit- 10 was explained to him and he pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial. 8. Before the Additional Sessions Judge, Jalgaon, when the accused appeared, charge, vide Exhibit- 10 was explained to him and he pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial. As has been rightly observed by the trial Court, from the cross-examination of some of the witnesses by the defence and initial statement made by the accused when he was inquired by witnesses Dipak Thakur and Pandurang Patil, it is disclosed that three unknown persons had entered their house and assaulted him, his brother, his brother's wife and children. At the trial, the prosecution examined in all 16 witnesses including complainant Dipak Thakur (P.W.1), Pandurang Patil (P.W.3), Dr. Sandip Ingale (P.W.6) who conducted autospy on the dead bodies of Meena and Manohar in Municipal Hospital, Bhusava!, injured Monica (P.W.7), Dr. Sangram Narwade (P.W.II), who examined injured Monica and Vishwesh in Municipal Hospital, Bhusaval, Dr. Atul Chaudhari (P.W.12), who carried out autospy on the dead body of Akhilesh, Police Inspector Dilip Shankarwar (P.W.14) and Murlidhar Sapkale (P.W.16), the Executive Magistrate, who recorded statement of the accused vide Exhibit- 73. 9. Accepting the medical evidence, the trial Court came to the conclusion that the victims Manohar, his wife Meenabai and son Akhilesh died homicidal death and that witness Monica and her brother Vishwesh suffered injuries, which were noted on their person, as a result of assault on them by the accused, as alleged by the prosecution. As regards involvement of the appellant/accused in commission of murder and causing injuries to injured persons, the trial Court accepted statement Exhibit-73 recorded by the Executive Magistrate treating it as extra judicial confession, so also accepting the evidence of witnesses Pandurang Patil and Dipak Thakur, to whom immediate disclosure was made by the accused when he was inquired with. The trial Court has discarded the contention of the accused that on that night, some unknown persons have entered the house and killed the inmates of the house and caused injuries to accused and witness Monica and her brother Vishwesh. The trial Court has discarded the contention of the accused that on that night, some unknown persons have entered the house and killed the inmates of the house and caused injuries to accused and witness Monica and her brother Vishwesh. So, on appreciation of evidence, the trial Court, by the impugned judgment and order dated 5th March, 2003, convicted the accused/ appellant for offence punishable under section 302 of I.P.C. and sentenced him to imprisonment for life and to pay fine of Rs.25,000/- and in default of payment of fine, to suffer further R.I. for two years; and he was also convicted for the offence punishable under section 307 of I.P.C. and sentenced to suffer R.I. for seven years and to pay fine of Rs.10,000/-, in default of payment of fine to undergo further R.I. for three months. Hence, by filing Criminal Appeal No. 183/2004, the appellant accused has challenged the judgment and order of conviction and sentence. The State has also preferred an appeal, as stated earlier, for enhancement of sentence, seeking awarding punishment of death for the offence of murder punishable under section 302 of I.P.C. 10. Before adverting to the submissions of the learned Counsel for the appellant and learned A.P.P., it would be convenient to state few facts regarding which there is no dispute and at the same time, the same are borne out and so to say, established on the evidence on record. On the night when the incident took place, besides the victims and injured, the appellant/accused was in the house. Initially, as has been deposed by witness Dipak Thakur, around 9.00 p.m., on that night, there was some quarrel between victim Manohar and the accused. We are not much concerned about the cause of quarrel, but the fact remains, as has been stated by witness Monica, that at the time of that incident, when quarrel ensued between victim Manohar and accused, it was accused, who was at receiving end, that time expressed that he would receive the beating or assault from victim Manohar and by way of giving threat, he retorted saying that he would see all of them, meaning thereby, he would see that all of them are assaulted by him. In the morning, when Police Inspector visited the place of occurrence, on receiving phone message from witness Pandurang Patil, he noticed that Manohar and his wife Meena were lying dead and three children Monica, Akhilesh and Vishwesh were lying injured and, therefore, those injured were also sent to the hospital for treatment. It is not disputed that the third victim Akhilesh, while undergoing treatment, died in the hospital. So far as victim Manohar is concerned, Dr. S. D. Ingale carried out autopsy on his dead body and as per the post-mortem report Exhibit - 32, he suffered external injuries as described in Column No.17, so also internal injuries as mentioned in Column No.19 of the post-mortem report and in his opinion, the cause of death was 'coma due to head injury'. Dr. Ingale (P.W.6) also carried out autospy on the dead body of victim Meena and as per the post-mortem report Exhibit - 30, he noticed external injuries, as given in detail in Column No.17, so also internal damage corresponding, as given in detail in Column No.19 of the post-mortem notes. He also noticed that besides these injuries, the victim has suffered burn injuries and as stated by him in his evidence, the percentage of burns was 50% all over her body. He has opined that the burn injuries were post-mortem while rest of the injuries, internal as well as external, were ante mortem and in his opinion, the injuries sustained by Meenabai were sufficient in ordinary course of nature to cause death. He also gave opinion that the head injury, as caused to deceased, may be due to stone, iron rod, or wooden log and in his opinion, the death of victim Meenabai was caused due to head injury. So far as the third victim Akhilesh is concerned, Dr. Atul Chaudhari, (P.W.12) carried out autospy on the dead body of victim Akhilesh and he noticed external injuries, as noted in Column No.17, so also internal injuries, as noted in Column No.19, of the post-mortem report Exhibit - 51. He opined that the injuries, which he noted, can be possible by muddemal article iron rod and square sized wooden log and in his opinion, death of the deceased was caused due to haemorrhagic shock due to intracranial haemorrhage and injuries mentioned in Column Nos.17 and 19 of the post-mortem report. He opined that the injuries, which he noted, can be possible by muddemal article iron rod and square sized wooden log and in his opinion, death of the deceased was caused due to haemorrhagic shock due to intracranial haemorrhage and injuries mentioned in Column Nos.17 and 19 of the post-mortem report. The fact that these victims suffered injuries, as noted by the medical officers, and that they died of those injuries, as opined by the medical officers, is not disputed by the defence. In other words, it is not disputed by the accused that victims Manohar, Meena and their son Akhilesh suffered injuries at the time and place when the incident took place and that they died homicidal death because of the injuries they suffered. Similar is the position as regards injuries suffered by witness Monica. She was examined by Dr. Sangram Narvade (P.W.11) and as stated by him in his evidence, he issued injury certificate vide Exhibit - 48 in respect of the injuries suffered by her. He also opined that injuries Nos.1 and 2 can be possible by the square shaped wooden log and in his opinion, injuries Nos.3 and 4 may be caused by fire. He examined injured Monica on 29-6-2001 and in his opinion all the injuries were caused within twelve hours. He also examined injured Vishwesh Matkari, another son of Manohar and Meena on 29-6-2001 and the injury on his person, as noted by him, has been described in certificate Exhibit - 47, issued by him and as could be seen from Exhibit - 47, the only injury he suffered was that of multiple contused lacerated wound over the scalp penetrating upto bone with profuse bleeding on both parietal regions and other occipital region. He opined further that the injury must have been caused by a sharp and hard object within twelve hours. This evidence of Medical. Officer as to the factum of injuries, so also the nature of the same, vis-a-vis witness Monica and her brother Vishwesh has not been disputed by the defence. Therefore, it is established on the evidence on record and also not disputed by the defence that witness Monica and her brother Vishwesh, at the time and place of incident, suffered injuries. 11. Therefore, it is established on the evidence on record and also not disputed by the defence that witness Monica and her brother Vishwesh, at the time and place of incident, suffered injuries. 11. It is the case of the prosecution that the victims, who have died and the injured witness Monica and her brother Vishwesh suffered injuries as a result of assault by the accused on the, night of the incident that took place. As against that, the defence has come out and as has been stated by the accused, that on that night, some 3/4 unknown persons, after having entered the house, assaulted victims and injured and then ran away. So with this plea, the accused has tried to exonerate himself of the charge and allegation that the victims and injured were assaulted by him. In this context, it is pertinent to note that the accused has not disputed the fact that whatever injury he suffered on his head was because of beating done to him by his brother deceased Manohar. But, at the same time, the accused has ventured to say, while putting forth the story, that 3/4 unknown persons entered the house on that night, he was assaulted and in that assault, he sustained injuries on his head. 12. After having gone through the entire evidence with the assistance of the learned Counsel for the parties and having regard to the facts about which there is no dispute, as has been stated in earlier part of the judgment, we are of the considered view that the material and relevant evidence in this case is that of witness Dipak Thakur (P.W.1), Pandurang Patil (P.W.3), Chandrashekhar Balaji (P.W.5), Monica (P.W.7), Dilip Shankarwar (P.W.14) - the Investigating Officer and Murlidhar Sapkale (P.W.16). In that, to some extent, we get the vivid picture as to what exactly happened at the time and place of the incident through the evidence of witness Dipak Thakur, Pandurang Patil and Monica. In the first place, their evidence is acceptable for the reason that the presence of these witnesses is not disputed. Even presence of the accused person, at the time of occurrence on that night, in the house, is not disputed. Though the accused, in his statement recorded under section 313, Cri.P.C., in answer to some of the questions, has an audacity to say that he did not know. Even presence of the accused person, at the time of occurrence on that night, in the house, is not disputed. Though the accused, in his statement recorded under section 313, Cri.P.C., in answer to some of the questions, has an audacity to say that he did not know. To illustrate this, to a question that, on that night victim Manohar, his wife Meena and child Akhilesh were found lying dead in the house, so also witness Monica and her brother Vishwesh were lying severely injured, the accused/appellant feigned ignorance saying that he did not know. This was palpable false when the accused himself came up with a story that on that night some 3/4 unknown persons entered the house where he was also there along with his brother and family and after having assaulted all of them, including the appellant, and removing the household articles those persons went away. In saying so, in c1ea words he admitted that in that assault, he sustained injuries on his head, his brother Manohar, Meena wife of Manohar and children sustained injuries and his brother Manohar and his wife Meena or their dead bodies were lying in the house and witness Monica and her brothers were lying injured in the house. It is, in this background, we have no hesitation in saying that in spite of inconsistent replies given by the accused, the fact remains that he admitted his presence in the house at the time when the occurrence took place. Even as regards the incident, which occurred a bit earlier around 9.00 p.m., what was described by witness Dipak Thakur, in his evidence, that there was verbal quarrel between the accused and victim Manohar and in that, as has been confessed by the accused to these witnesses Dipak Thakur and Pandurang Patil that while he was receiving the beating at the hands of his brother, he kept laughing and retorted to his brother saying that, let him be beaten by his brother, but later on he would see that his brother and the members of the family would be beaten. In our considered view, the incident, that later on took place in the house at midnight, was the sequel of ~hat has been expressed by the accused to his brother Manohar at the time when the accused was first beaten by his brother Manohar. 13. The learned Counsel for the appellant Mr. In our considered view, the incident, that later on took place in the house at midnight, was the sequel of ~hat has been expressed by the accused to his brother Manohar at the time when the accused was first beaten by his brother Manohar. 13. The learned Counsel for the appellant Mr. A. M. Gaikwad has, no doubt, pointed out the discrepancy as regards the motive for the quarrel and assault. The prosecution at one stage, placing reliance on the evidence of brother of victim Meena, namely Chandrakant Balaji (P.W.5), tried to point out that some dispute over property between the two brothers was the cause of quarrel. But, at the same time, to some extent contrary to that, through the evidence of witness Monica, it has come that her father was suspecting that the accused had illicit relations with her mother, In that context, she has stated in her evidence that e some days prior to the incident, she had noticed her mother and accused proceeding towards and entered the latrine together, Witness Monica was a child witness. So, as it appears to us, playing on her own imagination, she has felt that such closeness on the part of her mother and accused in remaining closeted, was showing illicit relationship between them. But, having assessed the evidence carefully, we are of the view that what was the cause of quarrel is not that material having regard to the facts and circumstances of the case and more particularly the happening of the incident of assault in the background of the fact that the accused was very much in the house at the time and place when the incident took place. That is also, of course, to be viewed and assessed in the background of repeated false disclosures made by the accused as to what actually took place at the time of occurrence. 14. Witness Dipak Thakur, (P.W.1) who happens to be the next door neighbour was the person who learnt about the earlier incident that took place at about 9.00 p.m. As stated earlier, that incident related only to the quarrel in which victim Manohar beat the accused. His evidence, in that regard, gains corroboration from the evidence of witness Monica, who was very much there in the house. His evidence, in that regard, gains corroboration from the evidence of witness Monica, who was very much there in the house. As we appreciated her evidence, we have no hesitation in saying that as regards that earlier incident, her observation and narrating about that incident is as vivid as that could be and that lends assurance to what has been stated by witness Dipak Thakur. It is true that the learned Counsel for the appellant has strongly criticised the evidence of witness Monica on the ground that, (i) she is an interested witness, being closely related to the victims and (ii) she being the child witness, it was likely that whatever she disposed before the Court was the result of tutoring. We do not agree with the submissions of the learned Counsel for the appellant in that regard. We have carefully considered her evidence and the manner in which evidence of Monica is recorded by the trial Court, who had an opportunity to observe the demeanour of the witness. We are satisfied that the witness stood to the test and her evidence inspires confidence. From the replies she has given to the question put by the trial Court as preliminary questions to ascertain whether she has a power of understanding, it is crystal clear that she is a witness of truth. What makes us to accept her evidence is the fact that she is also one of the sufferer and as could be seen from the medical evidence in respect of the injuries, she has suffered, including the burn injuries, that by itself is sufficient to accept her testimony as truthful and inspiring confidence. Taking overall view of the situation that prevailed at the place of occurrence, it is very difficult to say that the witness was tutored and, therefore, we do not agree with the submission of the learned Counsel for the appellant that her evidence is to be discarded. 15. The picture that has been depicted through the evidence of witness Monica, which can be described as after effects of the assault has been thoroughly corroborated through the evidence of witness Dipak Thakur, Pandurang Patil and P.I. Dilip Shankarwar, who admittedly, on receiving phone message, visited the place of occurrence within a short span of time. 15. The picture that has been depicted through the evidence of witness Monica, which can be described as after effects of the assault has been thoroughly corroborated through the evidence of witness Dipak Thakur, Pandurang Patil and P.I. Dilip Shankarwar, who admittedly, on receiving phone message, visited the place of occurrence within a short span of time. Not only that, but the spot panchanama Exhibit - 24, which is long drawn and when has not been disputed and further which has been duly proved through the evidence of pancha witness Prabhakar Dharmadhikari (P.W.2) and P.I. Shankarwar, depicts the picture which is totally consistent with what has been stated, in the evidence, by witness Monica. In that, we give emphasis that the dead bodies of Manohar and his wife were found lying in the house and three children Monica, Akhilesh and Vishwesh were lying there injured. In that also, as the medical evidence shows, victim Meena has suffered burn injuries, so also witness Monica. Witness Dipak Thakur, in his evidence, stated that he noticed smoke coming out of the house and he also smelt something burning in the house. What is surprising is that these facts are not disputed by the accused. In that regard, what is contended by the accused was that the entire thing was done by unknown persons who entered the house. The fact remains that what has been stated by witness Monica and witness Dipak Thakur is squarely truthful in that regard. Therefore, it is, in this background, that though the learned Counsel for the appellant pointed out some omissions in the evidence of witness Monica, as has been rightly said by the trial Court, in the facts and situations that prevailed, these omissions are explainable. It is a matter of record that witness Monica was also admitted in the hospital and she has also undergone treatment for some days and thereafter her statement was recorded. So, in such situation, it is likely that the witness, who was a minor child about 11 years, is likely not to state these details when her statement was recorded. So, we accept her evidence as regards the incident which she noticed when she woke up at midnight. She saw, at the initial stage, accused assaulting her father. So, in such situation, it is likely that the witness, who was a minor child about 11 years, is likely not to state these details when her statement was recorded. So, we accept her evidence as regards the incident which she noticed when she woke up at midnight. She saw, at the initial stage, accused assaulting her father. She did state that apprehending that the assault would be on her father, she gave a wooden rafter to her father, as a result of which, her father assaulted the accused. Then she noticed that the accused assaulted her father. She also noticed that her mother was lying injured and by her side, a big square sized stone having stains of blood was lying. Her mother was groaning in pain. She has further stated that the accused assaulted her, as a result of which she suffered injuries and then c01lapsed and became unconscious. The reason for assaulting witness Monica, was obvious, as stated by her that the accused noticed that Monica saw him assaulting her father and mother. In addition to this, the fact remains that her brothers Akhilesh and Vishwesh were found lying injured. This was the picture which was noticed by witness Dipak Thakur, Pandurang Patil, and P.I. Shankarwar, in the morning. P.I. Shankarwar has candidly stated in his evidence that first he noticed, when he arrived on receiving phone message, that the accused was standing having sustained injuries on his head. He, therefore, immediately managed to send him to the hospital for treatment. When he entered in the house, he saw the dead bodies of Manohar and Meena lying with wooden rafter, iron rod and big stone stained with blood in the house. These articles have been seized when the spot panchanama was prepared. He immediately sent all these injured persons to the hospital for treatment. So, his evidence, coupled with the evidence of witnesses Dipak Thakur and Pandurang Patil, coupled with circumstances attending the case, certainly lend assurance to the evidence of witness Monica. Therefore, that is the reason why we are inclined to accept her evidence as truthful. 16. Now we have to see what would be the effect of accepting her evidence about the incident. Therefore, that is the reason why we are inclined to accept her evidence as truthful. 16. Now we have to see what would be the effect of accepting her evidence about the incident. In the first place, accepting her evidence, it is clinching that her father, mother and two brothers came to be assaulted by the accused and accused alone in the house on that night. We have already referred to the disclosure made by the accused to witnesses Dipak Thakur, Pandurang Patil and P.I. Shankarwar. In that, he has given inconsistent versions. All that he has said is that the entire blame for the catastrophe, that has occurred, was the intrusion of unknown persons in the house on that night for committing theft. In our opinion, once the evidence of Monica is accepted and as has been stated in earlier part, that her evidence gains corroboration by the evidence of other witnesses and circumstances attending, it has to be said that what has been disclosed by the accused putting forth the story of unknown persons or thieves having entered the house and assaulted all the members of the family, including accused himself, is totally false. This was, at the most, could be said to be an attempt on the part of the accused to mislead the persons to ward off himself of the accountability of death of Manohar, Meena and Akhilesh, so also injuries sustained by witness Monica and her brother Vishwesh. Witness Monica, in the nature of things, had no reason to tell lies before the Court and that too against the accused, who is her uncle. That is the reason why we accept her evidence as truthful and inspiring confidence. 17. As regards the injuries, which the accused has suffered, he claimed that he also received injuries as a result of assault by the unknown persons in the house on that night. But when we accept the evidence of Monica, it is very difficult to accept the contention of the accused that he was also assaulted by unknown persons having entered the house on that night. If it was true that unknown persons entered the house and they assaulted these persons, including the accused the conduct exhibited by the accused, then would have been otherwise. He remained in the house till the entire episode of assault was over. If it was true that unknown persons entered the house and they assaulted these persons, including the accused the conduct exhibited by the accused, then would have been otherwise. He remained in the house till the entire episode of assault was over. Not only that, but in early morning, he came out of the house in a casual manner and when he was accosted, he disclosed, pretending to be very innocent, that the thieves have come and they have assaulted the inmates of the house including himself. In our considered opinion, had it been a fact that the assault was by the thieves or unknown persons, the reaction of the accused would have been different, in the sense, that he was the person, who was atleast alive and conscious and. therefore, it was but natural on his part to raise shouts and cause alarm to the persons in the vicinity. It is in this context, we refer to the evidence of witness Dipak Thakur, who happened to be there at that at odd hours outside the house on hearing the shouts and groaning of a child and also having smelt something burning in the house. It did not happen that accused came outside the house immediately. It did not happen that the accused raised alarm. If really the story put forth by the accused of thieves or unknown persons having entered the house was true, then the accused having exhibited natural course of conduct, further injuries or assault on the victims would have been averted. So, the fact remains that the accused remained there in the house acting passively belies his claim so also the story that is put forth by him. On the other hand, what was expressed by the accused at the time of incident that took place earlier, which, though was trifle, makes us to believe that the accused and the accused was the perpetrator of the crime. Therefore, considering the evidence of witness Monica, in the background of attending circumstances and the evidence of witnesses Dipak Thakur and Pandurang Patil, we have no hesitation in coming to the conclusion that the accused, on that night, assaulted the inmates of the house including the children and he alone is responsible for causing death of Manohar, Meenabai and Akhilesh and also for assault on Monica and Vishwesh. We have no hesitation in saying that the act done by the accused was fully premeditated taking advantage of the fact that all the victims were fast asleep at midnight and they had no opportunity to defend themselves when they were attacked by the accused. The injuries suffered by these victims and burn injuries suffered by victim Meena and witness Monica, that itself, shows that to what extent the brutality on the part of the accused was. After having assaulted Manohar and Meena and done to death, he assaulted the children. He did not hesitate even slightestly in effecting murderous assault on the children, who were no one else but the children of his real brother Manohar. So, this much evidence, in our opinion, is sufficient to hold the accused guilty of the offences committed by him. We, therefore, fully agree with the finding recorded by the trial Court. 18. Now after having come to the conclusion, we consider the evidence as regards the alleged extrajudicial confession Exhibit 73 recorded by witness Murlidhar Sapkale (P.W.16). The trial Court has accepted that part of the evidence and found that this was a corroborative piece of evidence to lend assurance to other evidence to establish the guilt of the accused. However, Mr. Gaikwad, learned Counsel appearing for the appellant/accused, has strongly criticised the acceptance of this evidence on the point of extra judicial confession on various grounds. In the first place, according to the learned Counsel, this evidence cannot be accepted and conviction cannot be based solely on this evidence because the accused has retracted the confession when his statement under section 313. Cri.P.C. recorded. In that regard the learned Counsel placed reliance of the decision of the Apex Court in the case of Kashmira Singh Vs. State of Madhya Pradesh, repot1ed in A.I.R. 1952 S.C. 159. In fact, in this case, that was before the Apex Court, there was confessional statement of the co-accused and the question that arose for consideration is how far and in what way the confession of the accused person can be used against the co-accused. The incidental question, which was also considered, was what is the evidentiary value of such a confession of co-accused and whether the same could be made the foundation of conviction. The incidental question, which was also considered, was what is the evidentiary value of such a confession of co-accused and whether the same could be made the foundation of conviction. The Apex Court observed thus: "The confession of an accused person is not evidence in the ordinary sense of the term as defined in section 8 of the Evidence Act. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course, it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. " So, in our considered opinion, having gone through the observations of the Apex Court, even on facts, when we have found that evidence of witness Monica and other evidence is sufficient to hold the accused guilty, the question of considering the evidence of confession does not arise. It is not necessary to see whether this type of evidence lends support to the other evidence. 19. But, as has been submitted by the learned Counsel for the parties elaborately, on this event of recording confession of the accused, we are expressing our view, having regard to the facts and circumstances of the case in which the said confession has been recorded. It is a matter of record that the accused was immediately sent to the hospital by P.I. Shankarwar when he noticed that the accused had sustained injuries on his head. So, the fact remains that the accused remained in the hospital undergoing treatment. The investigation in the matter proceeded on the complaint lodged by witness Dipak Thakur. It appears that considering the injuries sustained by the accused, his condition was not serious. So, the fact remains that the accused remained in the hospital undergoing treatment. The investigation in the matter proceeded on the complaint lodged by witness Dipak Thakur. It appears that considering the injuries sustained by the accused, his condition was not serious. But what was thought by the Investigating Officer was that the accused may not survive as he was undergoing the treatment. It was on 30-6-2001, the Police Station Officer of Zilla Peth Police Station, Jalgaon, by letter Exhibit-72, sent a requisition to witness Murlidhar Sapkale (P.W.16), who was admittedly the Executive Magistrate, working as Treasury Awal Karkoon in Treasury Office at Jalgaon, making a request to record the statement of injured Sham Bhaskarrao Matkari - the present appellant/original accused. In view of this requisition, witness Murlidhar Sapkale visited the Civil Hospital, Jalgaon and after having enquired with the accused/injured and when the doctor told him to record his statement, he recorded the statement Exhibit-73. So, these preliminary facts and the date and time when the statement was recorded, all were under the notion that the statement will be a dying declaration as contemplated under section 32 of the Indian Evidence Act. But then the factual position being otherwise, the appellant being arrested later on and faced the trial, the said statement remained to be simplicitor statement under section 8 of the Evidence Act. 20. That apart, the maker of the statement i.e. present appellant Sham Matkari that time was not the accused. This was because the First Information Report was lodged by witness Dipak Thakur, which was taken down by P.I. Shankarwar in which it is disclosed that unknown persons have assaulted the victims. It was obviously for the reason that at that juncture, when immediately P.I. Shankarwar arrived on the spot in response to the phone message received, it was the accused who disclosed that unknown persons have come in the house at mid night and they assaulted the inmates of the house, including himself. In earlier part of the judgment, we have already observed that what was disclosed by the accused to P.I. Shankarwar and also to other witnesses Dipak Thakur and Pandurang Patil was deliberately false to get himself exonerated of the commission of the offence. It is also to be noted that accused Sham Matkari came to be arrested subsequent to recording of this statement Exhibit-73. It is also to be noted that accused Sham Matkari came to be arrested subsequent to recording of this statement Exhibit-73. Therefore, it was, in that sense, that the statement Exhibit - 73, when it was recorded, it can not be said to be a confessional statement in the strict sense nor it can be termed as dying declaration as the maker of the statement was very much alive when the trial proceeded. 21. It is, in this situation, that we have to consider the statement Exhibit-73 recorded by Executive Magistrate Murlidhar Sapkale. The learned Counsel for the appellant has strongly objected to accept this statement on the ground that it was not voluntary and that when the statement was recorded, the appellant was brought by the police from the hospital for recording his statement. It is further submitted that the Executive Magistrate is not empowered to record the statement. It is further submitted that the appellant has retracted the said statement when his statement under section 313, Cri.P.C. was recorded. 22. When we read the entire statement Exhibit-73, it is revealed that it contains confession on the part of the appellant about his involvement in commission of the crime. It is equally true that the appellant has retracted the said confession by making his statement, when he was examined under section 313, Cri.P.C. and at the same time, cross-examination of witness Murlidhar Sapkale, by defence, thus suggests that recording of the confession, so also the confessional part in the statement, has been seriously controverted. But then, in the background of the situation that prevailed, when the statement was recorded, we do not think that the appellant gave statement, including the confessional part therein, under pressure, threat and influence by the police. We have already pointed out that when the statement was recorded, that time, the appellant was not accused. He was admitted in the hospital as he had sustained injury. In the First Information Report, which has been lodged by witness Dipak Thakur, nothing has been attributed to the appellant and all that has been said was that 3/4 unknown persons entered his house and committed murders and also assaulted the victims. This was most probable because of the said disclosure made by the appellant himself when he was enquired by P.I. Shankarwar and witness Dipak Thakur and Pandurang Patil. This was most probable because of the said disclosure made by the appellant himself when he was enquired by P.I. Shankarwar and witness Dipak Thakur and Pandurang Patil. After scrutinising the evidence of all these three persons and having regard to what witness Monica has stated on oath, before the Court, in her evidence, we have found that what was disclosed by the appellant was found to be false and misleading. It is further to be noted that after this statement was recorded, the appellant came - to be arrested as accused. Therefore, in our considered view, though witness Murlidhar was the Executive Magistrate, when he recorded the statement of appellant, he was certainly empowered to record such statement. Even if because of the fact that later on appellant has been impleaded as accused, this statement, being containing confessional part, has to be recorded by witness Murlidhar Sapkale, in view of section 8 of the Indian Evidence Act. In that situation, it is crystal clear that the appellant, at the time when his statement was recorded, was no way under the influence or surveillance of the police. If we pursue the statement Exhibit - 73 carefully, it is revealed that the appellant was quite conscious physically and mentally when his statement was recorded. He was aware of the fact that when his statement was recorded, he was not the accused. Therefore, criticism made by the learned Counsel for the appellant, as to acceptance of the statement, carries no substance at all. We have carefully considered the evidence of witness Murlidhar Sapkale, who has been cross-examined thoroughly by the Counsel for the appellant. Though suggestions have been given, nothing has been brought or solicited in his evidence to spell out even that the appellant was forced, threatened or influenced to give the statement. Therefore, we have no hesitation in accepting the statement Exhibit- 73. We are of the considered view that the appellant voluntarily given the statement, as recorded by witness Murlidhar. 23. Though suggestions have been given, nothing has been brought or solicited in his evidence to spell out even that the appellant was forced, threatened or influenced to give the statement. Therefore, we have no hesitation in accepting the statement Exhibit- 73. We are of the considered view that the appellant voluntarily given the statement, as recorded by witness Murlidhar. 23. In this statement, the appellant has given detailed account of the relations with the victims, dispute between him and his brother Manohar, about the incident of quarrel that took place at night around 8.30 p.m., and then about the incident that in fact took place at midnight around 2.30 to 3.00 a.m. and as to what he did and the acts done by him for assaulting the victims Manohar, Meenabai and Akhilesh, so also, assaulting witness Monica and her brother Vishwesh. He also gave a detailed account of the fact as to how he attempted to burn the victims by bringing the gas cylinder from the kitchen. The last part of his statement, which, in our opinion, is very material, is reproduced as under: 24. Thus, acceptance of the statement Exhibit-73 clinchingly makes the position clear as regards the involvement of the appellant in the commission of crime. The last para of the statement, which has been reproduced in para 23 of this judgment, further makes it clear that whatever the appellant disclosed initially to P.I. Shankarwar and witnesses Thakur and Pandurang Patil was false, with a view to mislead them. Therefore, this statement Exhibit73, with all force, lends assurance to what has been stated by witness Monica, Dipak Thakur and Pandurang Patil. This also corroborates to the version of witness Chandrashekhar Balaji, who has stated, in his evidence, about the dispute between victim Manohar and the appellant. Accepting this statement coupled with the evidence, which is already discussed, clinches the issue as to involvement of the appellant in commission of three murders, so also murderous assault on two children namely Monica and Vishwesh. It is pertinent to note, in this context, that witness Dipak Thakur and Pandurang Patil are the persons, who are residing in the neighbourhood and their relations with the accused were cordial. Atleast nothing has been shown or brought in their evidence to indicate even that they were in any way inimical with the accused. Therefore, their evidence inspires confidence. It is pertinent to note, in this context, that witness Dipak Thakur and Pandurang Patil are the persons, who are residing in the neighbourhood and their relations with the accused were cordial. Atleast nothing has been shown or brought in their evidence to indicate even that they were in any way inimical with the accused. Therefore, their evidence inspires confidence. Their presence at the place of occurrence has not been disputed. Therefore, their evidence is as natural as it could be and as such, it inspires confidence. So, ultimately, on the basis of the analysis of the evidence, we have no hesitation in holding that the appellant is the perpetrator of the crime. It must be said that after the earlier incident that took place at about 8.30 p.m., the appellant, after having returned home, remained in the house and also slept with the family members including the victims to make it appear that he was as innocuous as one could be. Therefore, nobody must have doubted about what was passing in the mind of the appellant. But the picture that is depicted about the incident, that took place at midnight, would show that the appellant acted dubiously and the victims laboured under false belief that the incident which took place earlier ended then and there only. But the appellant carried in mind the vengeance and the later part of the incident, that took place at night, was certainly the outcome of the vengeance in the mind of the appellant, which drove him to commit murders so also murderous assault on his own dear and near ones. He was carried so much by that vengeance in his mind that he lost complete control over him and committed cold-blooded murder. He was deprived of his senses to such an extent that he did not feel ashamed nor he was deterred while committing murderous assault on the children when they were fast asleep and were as helpless and defenceless as it could be. Therefore, we fully agree with the finding recorded by the trial Court holding the appellant guilty for the offence committed by him. In this view of the matter, we do not find any substance and merit in the appeal preferred by the appellant and as such, the same deserves to be dismissed. 25. Therefore, we fully agree with the finding recorded by the trial Court holding the appellant guilty for the offence committed by him. In this view of the matter, we do not find any substance and merit in the appeal preferred by the appellant and as such, the same deserves to be dismissed. 25. This takes us to consider the appeal preferred by the State wherein, as stated earlier, it is vehemently submitted by the learned A.P. P. that in the facts and circumstances of the case and more particularly, the fact that three persons have lost their life and two children have been severely injured because of the murderous assault by the appellant/accused, and that the accused attacked the victims with premeditation and the attack by the accused having exhibited in totality the brutality, extreme penalty of death is called for. He, therefore, submitted that this is a rarest of rare case which calls for death penalty. 26. We have heard Mr. Gaikwad, learned Advocate, representing the respondent accused. He submitted that even admitting that, it was a case of multiple murders and also murderous assault on two small children and even to some extent, exhibited the brutality, it cannot be said to be a rarest of rare case calling for penalty of death. 27. Considering the imposition of extreme penalty of death, the State has filed an appeal under Section 377(1) of the Criminal Procedure Code against the sentence on the ground of its inadequacy. The respondent (original accused), in this appeal, is represented by his Advocate. As pointed out earlier, we have heard learned A.P.P., so also learned Advocate representing the respondent (original accused). But having regard to the provisions contained in sub-section (3) of section 377 of the Criminal Procedure Code, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of shoving cause against such enhancement. This provision makes it imperative on the Appellate Court to hear the accused on the point of sentence and particularly when the grievance of the appellant State is that for an offence, for which penalty of death is provided the Court, convicting the respondent (original accused), has awarded sentence of imprisonment for life. This provision makes it imperative on the Appellate Court to hear the accused on the point of sentence and particularly when the grievance of the appellant State is that for an offence, for which penalty of death is provided the Court, convicting the respondent (original accused), has awarded sentence of imprisonment for life. In this context, we may also refer to the provision contained in sub-section (3) of section 354 of the Criminal Procedure Code, wherein it is stated with emphasis 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 reason for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. So, having regard to these provisions, in order to afford an opportunity to the respondent (original accused) to show cause, we thought it fit to issue notice to the respondent (original accused). In pursuance of the notice issued, the respondent was brought before the Court and accordingly his statement came to be recorded by us. In his statement, he stated that he has two sisters. There is nobody to look after them. He further stated that both his sisters are married. He himself is unmarried. He stated that at the time, when the incident took place, he was residing with his brother at Bhusaval. As there is nobody to look after his sisters, he prayed for leniency and state that the sentence awarded should not be enhanced. 28. So, after having heard the learned Counsel for the parties, so also the respondent (original accused), the moot question that falls for our consideration is whether the present case, involving multiple murders, can be said to be a rarest of the rare case calling for extreme penalty of death. The Apex Court, in the case of Mach hi Singh and others - appellants Vs. The State of Punjab - respondent, reported in A.I.R. 1983 S.C. 957, while referring to its earlier decision in the case of Bach an Singh Vs. State of Punjab, reported in A.I.R. 1980 S.C. 898, observed : 'The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. The State of Punjab - respondent, reported in A.I.R. 1983 S.C. 957, while referring to its earlier decision in the case of Bach an Singh Vs. State of Punjab, reported in A.I.R. 1980 S.C. 898, observed : 'The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. 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'. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." "In order to apply these guidelines, inter alia, the following questions may be asked and answered; (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" "If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so." 29. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by killing a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so, in every case. But the community will not do so, in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that 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 community may entertain such a. sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for, instance: "When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance: (i) When the victim is subjected to inhuman acts of torture' or cruelty in order to bring about his or her death. (ii) When the victim is set aflame, as in the case before hand when victim Meenabai, after having done to death, was partially burnt by the respondent-accused. In the result that, as could be seen from the medical evidence and more particularly the finding recorded in the post-mortem report, she had sustained burn injuries and also in case of Monica, besides injuries as a result of murderous assault on her, she also suffered burn injuries. This was because of the leaking of the gas from the gas cylinder an attempt was made to burn her by setting her on fire. II. Motive for commission of murder:' When the murder is committed for a motive which evinces total depravity and meanness. A cold blood murder is committed with deliberate design in order to inherit property or to gain control over property. III. Magnitude of crime: When the crime is enormous" in proportion. For instance; when multiple murders, say of all or almost all the members of a family. IV. Personality of victims of murder: When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder; (b) a man, woman and their children when helpless and defenceless, as in the instant case, the victims and injured were fast asleep at midnight when the accused vanished one after another taking advantage of the fact that they were all defenceless." 30. These factors and guidelines based upon them, as indicated by the Apex Court in Bachan Singh's case (supra) are to be borne in mind while considering, in a given case, whether extreme penalty of death is called for. The imposition, as could be seen, is on the fact that the Court has to draw a striking balance having regard to the mitigating circumstances and aggravating circumstances in the case. The Apex Court in the case of (Asharfi Lal Vs. State or U.P.) reported in 1987(3) S.C.C. 224 , has Observed as under: "The accused-appellant being guilty of a heinous crime out of greed and personal vengeance, deserved the extreme penalty as a measure of social necessity and also as a means of deterring other potential offenders. This case falls within the test 'rarest of the rare cases' as laid down by the Court in Bachan Singh and elaborated in Machhi Singh. The punishment must fit the Crime. These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. Failure to impose a death sentence in such grave cases where it is a crime against the society - particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by section 302 of the Indian Penal Code. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment." 31. Considering the question as to the circumstances in which capital punishment can be imposed, the Apex Court took note of the decisions in Machhi Singh Vs. State of Punjab (supra), in which, the guidelines given by the Apex Court in the case of Bacchan Singh Vs. State of Punjab (supra) have been followed. The law is well settled by reason of the decisions of the Apex Court as to the circumstances in which capital punishment can be imposed. It is held therein that the capital punishment can be imposed in the rarest of the rare cases and if there are any aggravating circumstances, such as accused having any criminal record in the past, manner of committing crime, delay in imposing the sentence and so on. 32. It is held therein that the capital punishment can be imposed in the rarest of the rare cases and if there are any aggravating circumstances, such as accused having any criminal record in the past, manner of committing crime, delay in imposing the sentence and so on. 32. In the case at hand, on the evidence on record, following facts stand proved, which are required to be taken into consideration while deciding, whether in this case, extreme penalty of death should be imposed or not. (i) The date and place of incident not disputed. (ii) In the incident, that occurred, admittedly victim Manohar, his wife Meenabai and son Akhilesh lost their lives and as has been established on medical evidence, undoubtedly, these three victims died homicidal death. In that, victim Manohar and his wife Meenabai died on the spot having suffered head injuries; and in addition to that, so far as Meenabai is concerned, she suffered' bum injuries, indicating that the assailant i.e. the respondent (original accused) before the Court, caused bums by setting her on fire by leaking the gas from the Gas Cylinder. (iii) The assault on victims by the respondent was aimed at midnight when the victims were fast asleep and as such they were defenceless, showing that the respondent acted dastardly and was completely depraved. The nature of the injuries, which were inflicted on the child, more particularly the injuries on his head itself show that how the respondent acted brutally showing extreme depravity and ruthlessness. (iv) The respondent was alone in the house during the time the occurrence took place at midnight. This is, in the sense, that there was no third person in the house, much less, having entered the house. (v) As against this, the respondent put forth a false story that 3 to 4 unknown persons entered the house and committed murders and murderous assault on the victims. This plea of the respondent (original accused) was found to be false and misguiding the investigating machinery. (vi) The respondent (original accused), in his statement Exhibit - 73, has clinchingly stated that the victims were done to death by him, so also the injured children at the time and place of incident. (vii) In the early morning, witnesses Dipak Thakur and Pandurang Patil noticed the respondent coming out of his house having his hands and clothes on his person stained with blood. (vii) In the early morning, witnesses Dipak Thakur and Pandurang Patil noticed the respondent coming out of his house having his hands and clothes on his person stained with blood. (viii) Though the respondent came up with the case that unknown persons assaulted the victims in the house, he remained silent in the house, though, in his presence, the victims were done to death and two small children suffered serious injuries. (ix) The respondent did not raise hue and cry, though according to him, in his presence, unknown persons entered the house and assaulted the victims. He did not cause alarm to the persons in the vicinity, thereby exhibiting most queer and unnatural conduct. (x) The witnesses, particularly witness Dipak Thakur, in the midnight, heard cries of a woman groaning in pain; and early in the morning saw the respondent coming out of the house with blood on his clothes and hands. (xi) Both these witnesses Dipak Thakur and Pandurang Patil stated in their evidence that on that night, no third person from outside came to the premises, much less, entered in the house of the victims. (xii) The respondent, in his statement Exhibit73, which is accepted and found to be truthful, candidly admitted to have assaulted the victims acting in a brutal manner out of vengeance arising out of the dispute over the property. (xiii) The respondent did not deter, much less felt ashamed even while assaulting small children of his real brother when they were caught helpless, as they were sleeping when one of them was done to death and other two were injured. (xiv) Admittedly, the earlier incident took place at about 8.30 p.m., which ended after quarrel and some beating by victim Manohar to the respondent. The later incident occurred at mid right when the victims were fast asleep. The respondent assaulted them one by one and what is shocking is that victim Monica had seen the respondent committing assault after assault of her father, mother and her brothers Akhilesh and Vishwesh. (xv) It is seen that the murders have been committed and persons were done to death in ruthlessness, showing that the respondent was totally depraved of and acted most beastly. (xv) It is seen that the murders have been committed and persons were done to death in ruthlessness, showing that the respondent was totally depraved of and acted most beastly. (xvi) Since the earlier incident took place at 8.30 p.m. and the accused, after taking meals at night, remained in the house and then at midnight, surreptitiously killed one by one and also caused murderous assault on the victims showing extreme brutality. This shows that the attack by the accused was predetermined, so also premeditated. Therefore, it is a case of cold-blooded murders. All these above several factors show aggravated circumstances with which the respondent (original accused) perpetrated the heinous and diabolical crime. 33. The learned Counsel appearing for the respondent-original accused submitted that in view of the mitigating circumstances in this case, the extreme penalty of death cannot be imposed, having regard to the guidelines issued by the Apex Court in the case of Bacchan Singh Vs. State of Punjab, reported in A.I.R. 1980 S.C. 898 (supra). According to him, the accused is 32 years old and as such this fact itself is a circumstance mitigating in nature and more particularly because of the fact that his antecedents are unblemished. The learned Counsel submitted with emphasis that the accused is not a person of criminal tendency and as such, there could be no apprehension even of danger to the society and as such, extreme penalty of death is not called for. The question of rehabilitation of the accused, in such circumstances, has to be taken into consideration by the Court while considering whether it is a rarest of rare case calling for extreme penalty of death. 34. As against this, the learned A.P.P pointed out various circumstances so also facts which go to show that there are number of aggravating circumstances and that in the absence of any mitigating circumstance concerning the accused and having regard to the magnitude of the offence and the fact that three persons have lost their lives and there has been a murderous assault on two children by the accused, it is a case which can be well described as 'rarest of rare' calling for extreme penalty of death. 35. It is no doubt true that the accused was 28 years old at the time when the offence was committed. 35. It is no doubt true that the accused was 28 years old at the time when the offence was committed. It is also true that the incident that has taken place, in which three persons have lost their lives and two children have been assaulted, was the result of dispute between the two brothers, namely victim Manohar and the accused and the antecedents of the accused are unblemished as nothing is shown by the prosecution that earlier, prior to this incident, he had indulged into criminal activities. But having regard to the circumstances attending the case, the manner in which the accused acted, and the aggravating circumstances if taken into, consideration, it is very difficult to hold that the age of the accused could be called as a mitigating circumstance. We have also taken into consideration the statement of the accused wherein, he has stated that he has two married sisters and that he is required to look after them. But the fact that sisters are married and they are residing in their matrimonial homes, it is very difficult to believe the say of the accused that his sisters are dependent upon him and that he is required to look after them. Therefore, that also cannot be a mitigating circumstance. 36. In para 32 of the judgment, we have stated in nutshell several facts established on record, which in our considered opinion, are the aggravating circumstances in the case at hand. At the outset, it must be stated that the consequence of three murders and murderous assault on two children by the accused is that the accused practically wiped out the family of his brother and that too for very trivial dispute over the property. The learned A.P.P has rightly pointed from the post-mortem report in respect of deceased Manohar and Meena that besides other injuries, these victims suffered burn injuries. It is a matter of record that the accused alone was in the house at midnight when this incident took place. The witness Monica, who woke up from sleep, in fact witnessed the incident of assault on her father, mother and her two brothers and as stated earlier, the accused having noticed that Monica' witnessed the assault, he assaulted her and she also suffered injuries, including burn injuries. The witness Monica, who woke up from sleep, in fact witnessed the incident of assault on her father, mother and her two brothers and as stated earlier, the accused having noticed that Monica' witnessed the assault, he assaulted her and she also suffered injuries, including burn injuries. In our considered view, the fact that victims suffered burn injuries even after they died as a result of assault by the accused, itself indicates as to how in total brutal manner the accused acted. 37. The severity of the assault, so far as victims are concerned, could be imagined by factum of injuries, several and severe as they are, the victims suffered. This also shows that the accused acted in cruel manner while assaulting the victims. We cannot ignore the circumstance that at the time when the incident took place, all the victims were fast asleep at midnight. The accused assaulted them one after another causing multiple injuries to them. This situation simply shows that the victims were quite unaware and in helpless and defenceless state when the accused decided to inflict murderous assault on them. Besides assault on Manohar and Meena, the accused assaulted three children and out of three, one of them, namely Akhilesh died because of the murderous assault on him by the accused. So, here is a case where the accused did not spare even the children when there was no fault on their part, rather they did not provoke even slightest the accused to assault them. In our considered opinion, this circumstance is again sufficient to show that the accused acted dastardly and murderous assault was as ruthless and heinous as it could be. It is a case of extreme brutality. 38. In earlier part of judgment, we have pointed out that the incident, that took place at midnight, was a sequel of earlier incident that took place at about 8.30 p.m. But that incident ended then and there only, in which, no doubt, it was the accused who received beating from his brother Manohar. But then the main incident that took place at midnight, in fact after about five hours. In the meantime, the accused, as the evidence stands, after initial incident went out of the house and after some time returned to the house and slept in the house with the victims. But then the main incident that took place at midnight, in fact after about five hours. In the meantime, the accused, as the evidence stands, after initial incident went out of the house and after some time returned to the house and slept in the house with the victims. Then, at midnight, whatever he did was surreptitiously taking advantage of the fact that all the victims, who fell prey to his assault, it was the accused, who took the disadvantage of that situation and more particularly knowing that the victims were defenceless. For a moment, we accept that because of the earlier incident that took place at 8.30 p.m., the accused must have been hurt and acted enraged because of the assault on him by his brother deceased Manohar. But, then having regard to the fact that the later incident has taken place after about five hours and accused having returned home and slept with the victims and then proceeded to assault one after another, it must be said that the assault was premeditated. The accused was determined to assault, in such situation, it cannot be said that at any cost, the assault by the accused was on the spur of the moment, without there, being any premeditation. In our opinion, this is certainly an aggravated circumstance which has to be taken into consideration to say that it is a 'rarest of rare' case. 39. In earlier part of the judgment, we have already expressed that after having done to death his brother and brother's wife, the accused gave murderous assault on their children. Having regard to the fact that the small children were fast asleep, the accused did not think even for a while, he did not feel ashamed in assaulting the children of his brother, nor he was deterred because of small age of the children of his brother. This shows that the accused was totally depraved, which shows that it is a case of extreme culpability and, therefore, in the absence of any mitigating circumstance, in our opinion, the sentence awarded by the trial Court of imprisonment of life inadequate. In our considered opinion, this is a fit case, which calls for extreme penalty of death. In our opinion, this is a rarest of rare case where extreme penalty of death is called for. In our considered opinion, this is a fit case, which calls for extreme penalty of death. In our opinion, this is a rarest of rare case where extreme penalty of death is called for. Therefore, the appeal preferred by the State for enhancement of sentence has to be allowed and instead of sentence of imprisonment of life, the extreme penalty of death by hanging is to be imposed. 40. Before parting with the judgment, we feel it appropriate to express our words of appreciation as regards the sincere and untiring efforts taken by learned A.P.P. Mr. U. K. Patil, so also Mr. A. M. Gaikwad, learned Counsel defending the accused. Both of them have tried to place before the Court their submissions with utmost ability at their command. 41. We, therefore, pass the following order: (i) Criminal Appeal No.183 of 2004 is dismissed. (ii) Criminal Appeal No.391 of2003 is allowed. (iii) While maintaining the conviction of the respondent-original accused for offence under section 302 of IPC, the extreme penalty of death is awarded. Accordingly, respondent-original accused Sham @ Kishor Bhaskarrao Matkari shall be hanged by neck till he is dead. (iv) It is needless to say that the sentence awarded is to be executed after the period of appeal to the Apex Court is over or if any appeal is preferred by the accused in the Apex Court, then after the decision of the Apex Court. (v) We quantify the honorarium to sum of Rs.8,000/- (Rs.Eight thousand) for Mr. A. M. Gaikwad, who has been appointed as Advocate for defending the respondent- (original accused). As such, the amount of honorarium be paid to the learned Counsel. (vi) The copy of the judgment and order is to be supplied to the accused free of cost, immediately. Order accordingly.