A. M. KAPADIA, J. ( 1 ) CRIMINAL Confirmation Case No. 3 of 2005 arises pursuant to submission of the proceedings of atrocity Criminal Case No. 3 of 2003 made under section 366 (1) of the Code of Criminal Procedure (the Code for short) by the learned Special Judge, court No. 10, Special City Sessions Court, Ahmedabad, who, by his judgment and order dated 16. 5. 2005, has sentenced respondent " Satish alias Kalu alias hathoda (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. 1176 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 16. 5. 2005 rendered by the learned Special Judge, court No. 10, Special City Sessions Court, Ahmedabad, in Atrocity Criminal Case No. 3 of 2003 by which the appellant/accused is convicted for commission of the offence punishable under Sections 302, 201 and 404 of the IPC and sentenced to death whereas he was acquitted of the offence punishable under Section 3 (2) (v) of the Scheduled Castes and the Scheduled tribes (Prevention of Atrocities) Act, 1989 (the atrocities Act for short ). ( 2 ) AS Criminal Confirmation Case and Criminal Appeal arise out of the judgment and order dated 16. 5. 2005 rendered in Atrocity Criminal Case No. 3 of 2003 by the learned Special Judge, 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 Avinash Shantilal Rajguru, he is running a pathology Laboratory at Anand Shopping Centre, near isanpur Bus Stand, in the name and style of Rajguru pathology Laboratory, which is of his ownership, since 12 years prior to the incident in question. In his Laboratory, Mittal Khatri and Pavitra alias pintu Solanki were working as Assistants on a monthly salary of Rs. 3,000/ -. His laboratory was working for 24 hours for attending emergency. Accused - Satish Bhikhabhai Patel, a resident of isanpur village and Balinta village was working as a peon on a monthly salary of Rs. 900/- Hiren, another accused, juvenile at the time of alleged incident and brother of the accused Satish, was also working as Peon in the said laboratory for last two months prior to the incident. All these four persons used to sleep in the laboratory during night hours. (2) On 18. 7. 2002, at about 9. 30 P. M. , when the complainant - Avinash left his laboratory for going to his house, Pavitra alias Pintu was present in the laboratory whereas other three persons had gone to take their meals. After reaching home, the complainant slept in his house. (3) On 19. 7. 2002, between 6. 30 and 6. 45 in the morning, the telephone in the house of the complainant rang and it was attended by the wife of the complainant. The caller told her to give the telephone to the complainant. Thereafter the complainant talked to the caller on telephone. The caller introduced himself as Satish and informed the complainant that on the last night there was some quarrel with Pintu and Mittal and he killed both of them. The complainant inquired as to what was the problem but nothing was told in reply thereto. According to the complainant, it was Satish with whom he had talked on phone as he could recognize the voice of the accused Satish on telephone. On the phone the accused told the complainant that if he thought that the information given to him was not correct, then he may go to the laboratory and ascertain. After saying so the caller cut short the telephonic conversion and disconnected the line. (4) On receiving this telephonic message, the complainant went to the laboratory, but it was locked from outside, he returned home, collected the spare key of the laboratory and again went to the laboratory, with his wife. After saying so the caller cut short the telephonic conversion and disconnected the line. (4) On receiving this telephonic message, the complainant went to the laboratory, but it was locked from outside, he returned home, collected the spare key of the laboratory and again went to the laboratory, with his wife. On the way to the laboratory, the complainant informed his wife regarding the talk he had with the caller of the telephone i. e. , about the murder of two young persons serving in his laboratory and he also had gone to the house of Mittal Khatri to inquire as to whether he was available in his house or not and as mittal Khatri was not there in his house, he immediately went to the Police chowki to take police with him to the laboratory. (5) As per the case of the prosecution, in presence of the police, lock of the laboratory was opened and in the laboratory, the complainant, his wife and the police saw the dead-bodies of Mittal and Pintu in a pool of blood. The complainant thereafter narrated the story which Satish had told him on telephone, that he killed the two persons, Mittal and Pintu, and the information given by Satish on telephone turned out to be true. (6) The accused had fled from the scene of offence after murdering Mittal and Pintu. As per case of the prosecution, the murder of Mittal and Pintu took place in the night between 18. 7. 2002 and 19. 7. 2002 after 9. 30 P. M. It was also the case of the prosecution that the accused had taken away the CBZ motor Cycle bearing registration No. GJ-1-CN-6224 belonged to Pintu and thereafter he telephoned the complainant in the early morning on 19. 7. 2002. (7) A complaint in respect of the aforesaid incident was lodged at Vatva Police Station which came to be registered vide CR No. 241 of 2002 by p. W. 31, Rameshchandra Shankerrav Jagtap, Senior police Inspector, Vatva Police Station, for commission of the offence punishable under Section 302, 201 and 404 of the IPC. Thereafter P. W. 31, rameshchandra Shankerrav Jagtap went to the scene of offence, held inquest on the dead-bodies of deceased mittal and Pintu and sent the dead-bodies to Civil hospital for autopsy. Thereafter P. W. 31, rameshchandra Shankerrav Jagtap went to the scene of offence, held inquest on the dead-bodies of deceased mittal and Pintu and sent the dead-bodies to Civil hospital for autopsy. He thereafter drew up a panchnama of the scene of offence and recovered the articles lying there as muddamal. He thereafter recorded statements of the witnesses. Since the accused fled from the scene of offence, he constituted a team of Police Sub-Inspector and Head constable to trace out and arrest the accused. He arrested Hiren Bhikhabhai Patel, a juvenile accused, and sent him to custody. During the course of investigation, it was revealed that deceased Pintu belonged to Valmiki, a Scheduled Caste, and a certificate to that effect was produced by the father of deceased Pintu, and therefore, P. W. 31, rameshchandra Jagtap, sent a report to the higher officers and thereafter handed over the investigation to P. W. 32, Ramdayal D. Odedara, ACP "d" Division, Ahmedabad City. P. W. 32, Ramdayal D. Odedara, ACP, recovered the motor cycle belonged to deceased Pintu and sent yadi to RTO and thereafter sent the said motor cycle for analysis to FSL. P. W. 32, Ramdayal Odedara, ACP, arrested the accused satish Bhikhabhai Patel by way of transfer warrant as he was in the court custody in connection with an offence registered with Sarkhej Police Station. (8) On completion of the investigation, as sufficient incriminating evidence was found against the accused, P. W. 32, Ramdayal D. Odedara, ACP filed charge-sheet against the accused - Satish Bhikhabhai patel - in the Court of learned Metropolitan magistrate, Court No. 19, Ahmedabad City. (9) As the offence punishable under Section 302 of the IPC as well as the offence under the provisions of the Atrocities Act are exclusively triable by a court of Sessions, the learned Metropolitan magistrate committed the case to the City Sessions court, Ahmedabad. (10) The learned Special Judge of the City Sessions court, Ahmedabad, to whom the case was made over for trial, framed charge against the accused at Ex. 4 for commission of the offences punishable under Sections 302, 201 and 404 of the IPC and section 3 (2) (v) of the Atrocities Act which was read over and explained to him. (10) The learned Special Judge of the City Sessions court, Ahmedabad, to whom the case was made over for trial, framed charge against the accused at Ex. 4 for commission of the offences punishable under Sections 302, 201 and 404 of the IPC and section 3 (2) (v) of the Atrocities Act which was read over and explained to him. As the accused pleaded not guilty to the charge and claimed to be tried, he was put to trial and tried by the learned Special Judge in Atrocity criminal Case No. 3 of 2003. (11) In order to bring home the charge levelled against the accused, the prosecution examined as many as 32 witnesses and relied upon their oral testimony, the details of which have been given in paragraph 4 of the impugned judgment and order, as under: (1) P. W. 1, Avinash Shantilal Rajguru " owner of laboratory " Ex. 17. (2) P. W. 2, Monaben Avinash Rajguru " wife of complainant " Ex. 34. (3) P. W. 3, Harish Ramanlal Soni " inquest panch witness " Ex. 35. (4) P. W. 4, Udaykumar P. Solanki " father of deceased pintu " Ex. 37. (5) P. W. 5, Bharatkumar Dahyabhai Khatri " father of deceased Mittal " Ex. 38. (6) P. W. 6, Dr. Parul Vaghela " Medical Officer " ex. 39. (7) P. W. 7, Jigarbhai Ashokbhai Pandya " eye witness of bike " Ex. 49. (8) P. W. 8, Rajendrabhai Ghanshyambhai Patel " Panch witness of seizure of CDs " Ex. 50. (9) P. W. 9, Nilangbhai Surendrabhai Shah " panch witness of seizure of CDS " Ex. 51. (10) P. W. 10, Sapnaben Jagneshkumar Dave " serving in the laboratory " Ex. 52. (11) P. W. 11, Vaishaliben Jitendrabhai Dalal " religion sister of complainant " Ex. 53. (12) P. W. 12, Kanaiyalal Kishorlal Prnami " panch witness of seizure of clothes of the accused " ex. 54. (13) P. W. 13, Jigisha Nareshbhai Patel " serving in the laboratory " Ex. 57. (14) P. W. 14, Salimbhai Yunusbhai Vora " panch witness of the seizure of clothes of the accused " ex. 58. (15) P. W. 15, Nareshkumar Ravjibhai Patel " panch witness of seizure of abandoned vehicle " Ex. 60. ] (16) P. W. 16, Ramansinh Mohansinh Solanki- ASI " panch witness of the seizure of the motor cycle " ex. 62. (17) P,. 58. (15) P. W. 15, Nareshkumar Ravjibhai Patel " panch witness of seizure of abandoned vehicle " Ex. 60. ] (16) P. W. 16, Ramansinh Mohansinh Solanki- ASI " panch witness of the seizure of the motor cycle " ex. 62. (17) P,. W. 17, Kiritbhai Dahyabhai Patel " Fire brigade Officer " Ex. 63. (18) P. W. 18, Kirtikumar Ratilal Patel " driver of fire Brigade, Baroda " Ex. 64. (19) P. W. 19, Harisinh Nadsinh Raj " Fire Brigade " ex. 65. (20) P. W. 20, Saiyad Mohammad Mahedihusen Saiyad " driver " panch witness of seizure of sexy CDs " ex. 66. (21) P. W. 21, Kirenben Umeshkumar Vaghela " sister of deceased Pintu " Ex. 68. (22) P. W. 22, Rakshaben Bharatbhai Khatri " motor of deceased Pintu " Ex. 69. (23) P. W. 23, Natubhai Hirabhai Solanki " RTO Clerk " ex. 74. (24) P. W. 24, Komalben Bharatbhai Khatri " sister of deceased Mittal " Ex. 75. (25) P. W. 25, Chakarkhan Fetehkhan Baloch " Police sub-Inspector, Vatva Police Station, Ex. 77. (26) P. W. 26, Rambhai Kalubhai Khumbharvadiya " police Sub-Inspector, Isanpur Police Chowki, who noted the complaint " Ex. 80. (27) P. W. 27, Jashubhai Mangalbhai Padhiyar " Head constable " Chhani (regarding telephone Vardhi) " ex. 88. (28) P. W. 28, Jitubhai Somabhai Patel " owner of hotel Panetar Palace, Odhav " Ex. 90. (29) P. W. 29, Murlidhar Bansiram Rizwani " Social welfare Officer " Ex. 94. (30) P. W. 30, Mohammadaheshan Gulamrasul Pathan (message of Vatva one vehicle) " Ex. 96. (31) P. W. 31, Rameshchandra Shankerrav Jagtap " senior Police Inspector " Vatva Police Station (who made panchnama) " Ex. 98. (32) P. W. 32, Ramdayal D. Odedara " ACP "d" Division " Investigating Officer who filed charge-sheet " ex. 101. (12) To prove the culpability of the accused, the prosecution has also produced as many as 31 documents and relied upon the contents of the same, details of which are enumerated in paragraph 3 of the impugned judgment and order, as under: (1) Complaint of Avinash Rajguru dated 19. 7. 2002 " ex. 18. (2) Inquest Panchnama dated 19. 7. 2002 " Ex. 36. (3) Postmortem report of deceased Pavitra alias pintu dated 19. 7. 2002 " Ex. 41. (4) Call form prepared by PI Vatva " Ex. 42. (5) Visit report of FSL " Ex. 43. 7. 2002 " ex. 18. (2) Inquest Panchnama dated 19. 7. 2002 " Ex. 36. (3) Postmortem report of deceased Pavitra alias pintu dated 19. 7. 2002 " Ex. 41. (4) Call form prepared by PI Vatva " Ex. 42. (5) Visit report of FSL " Ex. 43. (6) Vardhi of Vatva Police Station dated 21. 7. 2002 " ex. 44. (7) FSL despatch note " Ex. 45. (8) Receipt of muddamal dated 16. 8. 2002 " Ex. 46. (9) Despatch note of FSL dated 24. 9. 2002 " Ex. 47. (10) Receipt of FSL of four packets dated 24. 9. 2002 " Ex. 48. (11) Panchnama of the seizure of clothes worn by the accused dated 30. 8. 2002 " Ex. 55. (12) Panchnama of the seizure of the clothes of the deceased Mittal Khatri " Ex. 59. (13) Panchnama of the seizure of owner less motor cycle dated 27. 8. 2002 " Ex. 61. (14) Panchnama of the seizure of the VCDs " Ex. 66. (15) Form of RTO (Form No. 23) " Ex. 73. (16) Panchnama of the clothes of accused " Ex. 78. (17) Report under Section 157 of the Cr. P. C. Dated 19. 7. 2002 " Ex. 81. (18) Letter of FSL to PI Vatva with assessment report dated 13. 11. 2002 " Ex. 82. (19) Serological report dated 8. 11. 2002 " Ex. 83. (20) FSL report with serological assessment " Ex. 84. (21) Results of serological assessment " Ex. 85. (22) Letter written by Chhani police station to RTO for the name of the owner of the motorcycle " Ex. 87. (23) Vardhi of Chhani police chowki dated 27. 7. 2002 " Ex. 89. (24) An extract of the register of the Hotel Panetar palace dated 24. 7. 2002 " Ex. 91. (25) An extract of the register of the Hotel Panetar palace " Ex. 92. (26) Caste certificate of Solanki Udayshankar " ex. 95. (27) Vatva one vehicle operator vardhi " Ex. 97. (28) Panchnama of the scene of offence dated 19. 7. 2002 " Ex. 99. (29) Panchnama of the Laboratory site shown by the complainant dated 20. 7. 2002 " Ex. 100. (30) Letter written by the police to RTO regarding motor cycle No. GJ-1-CN-6224 " Ex. 102. (31) Closing pursis given by Ld. APP " Ex. 103. 97. (28) Panchnama of the scene of offence dated 19. 7. 2002 " Ex. 99. (29) Panchnama of the Laboratory site shown by the complainant dated 20. 7. 2002 " Ex. 100. (30) Letter written by the police to RTO regarding motor cycle No. GJ-1-CN-6224 " Ex. 102. (31) Closing pursis given by Ld. APP " Ex. 103. (13) After recording of the evidence of the prosecution witnesses was over, the learned Special judge explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement the accused denied the case of the prosecution by saying that he was falsely implicated in the case. However, he did not lead any evidence nor did he examine any witness in support of his defence. (14) On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the learned Special Judge held that deceased Mittal and Pintu died a homicidal death. He also held that the prosecution has proved the evidence of extra- judicial confession made by the accused on telephone to P. W. 1, Avinash Shantilal Rajguru, the complainant, about committing murder of Mittal and pintu. He further held that the prosecution has established the case against the accused on the basis of the circumstantial evidence. The learned special Judge enumerated six circumstances appearing against the accused to prove his complicity in the murder of Mittal and Pintu. He also held that the accused has caused disappearance of the evidence after committing the offence. The learned Special judge also held that the prosecution has failed to prove the charge under Section 3 (2) (v) of the atrocities Act. In view of the above referred to conclusions, the learned Special Judge held that the charge levelled against the accused for commission of offence under Section 302 of the IPC was fully established and as a result thereof the accused was held liable for committing offence punishable under section 302 of the IPC for committing double murder. (15) The learned Special Judge thereafter heard the accused on the question of sentence. (15) The learned Special Judge thereafter heard the accused on the question of sentence. According to the learned Special Judge, the accused had committed brutal and diabolic murder of two persons who were aged about 19 and 20 years respectively and as he had committed heinous, gruesome and diabolic double murder in a shocking manner, according to the learned Special Judge, in view of the following judgments of the Supreme Court which are also referred to in the judgment of the learned Special judge, awarding of extreme penalty of death was imperative: (i) Bachan Singh v. State of Punjab, AIR 1980 SC 898 ; (ii) Machhi Singh v. State of Punjab, AIR 1983 SC 957 ; (iii) Dhananjoy Chatterjee alias Dhana v. State of w. B. (1994) 2 SCC 220 . (iv) Jai Kumar v. State of MP, AIR 1999 SC 1860 ; (v) Sushil Murmu v. State of Jharkhand, AIR 2004 SC 394 . (16) In view of the law laid down by the Supreme court in the above referred to judgments and on the basis of the above conclusions arrived at by the learned Special Judge, he imposed death sentence on the accused for commission of murder of Mittal and pintu vide his judgment and order date 16. 5. 2005 rendered in Atrocity Criminal Case No. 3 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, Mr. Nirav K. Majmudar, 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. 1176 of 2005 and admitted vide order dated 28. 6. 2005 with a direction to hear it with Criminal Confirmation case No. 3 of 2005. ( 5 ) MR. Nirav K. Majmudar, learned advocate of the accused, has contended that there is no eye witness to the incident and, therefore, the prosecution case entirely rests on the circumstantial evidence. 6. 2005 with a direction to hear it with Criminal Confirmation case No. 3 of 2005. ( 5 ) MR. Nirav K. Majmudar, learned advocate of the accused, has contended that there is no eye witness to the incident and, therefore, the prosecution case entirely rests on the circumstantial evidence. As far as evidence of extra-judicial confession allegedly made by the accused on telephone to P. W. 1, avinash Shantilal Rajguru, the complainant, is concerned, according to him, evidence of extra- judicial confession made by the accused is a very weak piece of evidence as settled by catena of decisions of the Supreme Court and, therefore, no conviction can be recorded merely on the basis of the said piece of evidence. (1) Mr. Majmudar submitted that the six circumstances pitted by the prosecution against the accused are not forming full chain and there are gaps and hence they cannot be made basis for conviction. According to Mr. Majmudar, the circumstances narrated by the prosecution are very weak and many links in the chain are missing and, therefore, it cannot be said that the prosecution has been able to establish the case beyond reasonable doubt on the basis of the circumstantial evidence and on the basis of the said incomplete evidence, the accused cannot be held guilty of the charge of double murder. It is also emphasised by mr. Majmudar that evidence tendered by the prosecution is not sufficient to prove unerringly that the accused was responsible for the alleged offence. (2) So far as the circumstance that the accused and the deceased were last seen together pitted by the prosecution is concerned, Mr. Majmudar has contended that there is no evidence on record to show that they were last seen together. It is also emphasised by him that the allegation that clothes put on by the accused at the time of commission of the offence were having blood stains is also not proved by the prosecution as the investigating officer has not recovered the clothes of the accused by drawing panchnama under Section 27 of the evidence Act. What is produced on record is merely a recovery panchnama and, therefore, no reliance can be placed upon the said piece of evidence to connect the accused with the alleged offence. What is produced on record is merely a recovery panchnama and, therefore, no reliance can be placed upon the said piece of evidence to connect the accused with the alleged offence. (3) One of the circumstances pitted against the accused by the prosecution is that he was absconding after committing the alleged offence. Mr. Majmudar, learned advocate of the accused, has contended that this circumstance by itself is not sufficient to prove the complicity of the accused in committing double murder. (4) On the aforesaid premises, according to him, a doubt is raised in the prosecution case and hence conviction of the accused for the offence punishable under Section 302 of the IPC for murdering Mittal and Pintu is not well-founded and the same deserves to be set aside. He has also pointed out that the learned Special Judge has failed to appreciate the evidence in its true perspective and spirit which has resulted in reaching to a wrong conclusion. (5) In the alternative, he has submitted that the learned Special Judge was not justified in relying upon the above referred to five reported decisions of the Supreme Court for the purpose of imposing death sentence on the accused inasmuch as facts of those cases were quite different from the facts obtaining in instant case. After placing reliance on the decision of the Supreme Court in Panchhi and others, v. State of UP (1998) 7 SCC 177 , he 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 singhs case (supra) and as the learned Special judge has taken into consideration only brutality of the manner in which the murder of Mittal and Pintu 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. (6) Mr. Majmudar has also pointed out that when the court records conviction on the basis of the circumstantial evidence, it should be slow in imposing death sentence on the accused. (7) He has further contended that the prosecution has failed to establish the motive behind the commission of the alleged offence. (6) Mr. Majmudar has also pointed out that when the court records conviction on the basis of the circumstantial evidence, it should be slow in imposing death sentence on the accused. (7) He has further contended that the prosecution has failed to establish the motive behind the commission of the alleged offence. According to him, motive is an important and vital aspect to be established in a case where the prosecution case rests on the circumstantial evidence. He has, therefore, contended that when the prosecution has failed to establish the motive behind the commission of the alleged offence, death sentence imposed on the accused may not be confirmed by this Court. (8) He has, therefore, prayed that Criminal confirmation Case No. 3 of 2005 should be dismissed and the Criminal Appeal No. 1176 of 2005 filed by the accused may be allowed and the accused may be acquitted of the offence with which he was charged. ( 6 ) MR. ND Gohil, learned APP for the State of gujarat, has vehemently opposed the contentions advanced by Mr. NK Majmudar, learned advocate for the accused. According to him, it is true that there is no eye witness to the incident and, therefore, the case against the accused is proved on extra- judicial confession made by the accused on telephone to P. W. 1, Avinash Shantilal Rajguru, the complainant, as well as six circumstances which are pitted by the prosecution against the accused. In this connection, the prosecution has adduced oral as well as documentary evidence by which the six circumstances pitted by the prosecution has been amply proved and there is no iota of doubt in the prosecution case. It is also emphasised by him that the circumstances pitted against the accused by the prosecution to prove complicity of the accused in commission of the offence are cogently and firmly established by the prosecution and the circumstances established by the evidence of witnesses of sterling quality unerringly point towards guilt of the accused and if all the circumstances taken cumulatively they are forming a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Mr. Mr. Gohil has further contended that by adducing and producing evidence of sterling quality, the whole inexplicable tangle of the case have been completely untangled before the court and the learned Special Judge has correctly appreciated the evidence on record and reached to the most appropriate conclusions. According to him, the impugned judgment and order convicting the accused for the offence punishable 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) In support of the aforesaid contentions, Mr. Gohil, learned APP has relied upon the decision of the Supreme Court in the case of State of Guru Singh v. State of Rajasthan, (2001) 2 SCC 205 that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the offence alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to lie and to whom it is made in the circumstances which tend to support the statement. (2) In respect of the imposition of death sentence upon the accused, Mr. Gohil, learned APP, has submitted that the way in which the the ghastly, diabolic and dastardly murder of two innocent persons has been committed by the accused, no sympathy can be shown to him and this can be called a "rarest of rare cases". (3) Mr. Gohil while dealing with the alternative plea raised by Mr. Majmudar, learned advocate of the accused, that death sentence should be commuted to life imprisonment as brutality of the manner in which the murder of Mittal and Pintu was committed is not the sole criterion for judging whether the case falls within the category of "rarest of rare cases", has submitted that the accused has committed ghastly and gruesome murder of two 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 Special judge may be upheld by this Court. According to him, the mitigating and/or aggravating features surrounding murder of Mittal and Pintu have been taken into consideration by the learned Special judge and having regard to the manner in which the two persons were murdered, death sentence imposed on him should be confirmed by this Court. (4) In the alternative, Mr. Gohil has further submitted 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, then the directions given by the Supreme Court in Subash chander v. Krishan Lal and others, (2001) 4 SCC 458 may be followed and a direction may be issued 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 two innocent persons was committed by the accused. (5) Lastly, it is submitted by Mr. Gohil, learned app 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 Criminal Confirmation Case should be allowed. ( 7 ) AT the outset, be it stated that as per the prosecution case, on the day of the alleged incident, in the Laboratory of P. W. 1, Avinash shantilal Rajguru, four persons were sleeping during night hours. Out of these four persons, two persons i. e. , Mittal and Pintu were murdered by the other two persons i. e. , the present accused Satish bhikhabhai Patel as well as his brother, co-accused, hiren Bhikhabhai Patel. However, at the time of commission of the crime, Hiren was juvenile and because of that reason, the case against him was transferred to Juvenile Court and charge-sheet against him was filed in Juvenile Court whereas charge-sheet against the present accused, Satish bhikhabhai Patel was filed in the Court of learned metropolitan Magistrate, Ahmedabad. It is reported by Mr. However, at the time of commission of the crime, Hiren was juvenile and because of that reason, the case against him was transferred to Juvenile Court and charge-sheet against him was filed in Juvenile Court whereas charge-sheet against the present accused, Satish bhikhabhai Patel was filed in the Court of learned metropolitan Magistrate, Ahmedabad. It is reported by Mr. ND Gohil, learned APP that so far as the charge-sheet filed against co-accused hiren Bhikhabhai Patel in Juvenile Court is concerned, since he has now crossed the age of 18 years, the charge-sheet was transferred from juvenile Court to the Court of learned Metropolitan magistrate, Ahmedabad who has committed the case against the accused Hiren to the City Sessions court, Ahmedabad which is awaiting trial. Be that as it may. At present, we are concerned with the accused Satish Bhikhabhai Patel, whose case is before us. ( 8 ) THIS Court has considered the submissions advanced by Mr. Nirav K. Majmudar, learned advocate of the accused and Mr. ND Gohil, learned APP for the state of Gujarat at length and in great detail. This court has 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 Special City 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 two persons. We have also carefully considered the judgments cited at the bar by the learned advocates for the parties. ( 9 ) SO far as homicidal death of deceased Mittal and pintu is concerned, no dispute is raised by the learned advocate of the accused before this Court. However, since this is a case of double murder and the accused is sentenced to death, we have independently examined the evidence on record with regard to the homicidal death of Mittal and Pintu. ( 10 ) TO prove that the deceased persons have died a homicidal death, the prosecution has examined P. W. 6, dr. However, since this is a case of double murder and the accused is sentenced to death, we have independently examined the evidence on record with regard to the homicidal death of Mittal and Pintu. ( 10 ) TO prove that the deceased persons have died a homicidal death, the prosecution has examined P. W. 6, dr. Parul Vaghela, Medical Officer, Ex. 39, at page 64 of the compilation. She has, inter- alia, testified that on 19. 7. 2002 she was on duty in post- mortem room. At that time, dead-body of Mittal bharatkumar Khatri was brought by the police of vatva Police Station with inquest report for autopsy. She performed the post-mortem examination with panel Dr. G. S. Makwana between 1. 00 PM and 3. 00 pm on the dead body of Mittal Bharatkumar Khatri. She noted the following external injuries on the dead-body: (1) 3x1. 5cm CLW on Rt. Forehead verticle 2 cm superior to End of rt. Eye brow lateral triangular in shape angle of triangle is inferiorly. (2) 4x1 cm size CLW verticle on rt. forehead 4 cm superior to middle of rt. Eye brow and 2 cm superomedial to injury No. 1. (3) 3x1 cm vertical bone deep CLW palpable on back of lt. ear 1. 5 cm posterior to upper end of lt. ear. (4) CLW 3 x 1. 5 cm transverse skin deep posterior to lower end of above injury No. 3. (5) 8 cm half circle shaped CLW on lt. temporal area convexity anteriorly 4 cm superior to lt. ear. Bone deep gaping. (6) CLW 3 x 1 cm bone deep on lt posterolateral of neck inferior to occipital. (7) Abrasion 5 x 3 cm on rt. shoulder. (8) 1 x 1 cm abrasion on middle of rt. jaw. (9) Abrasion 2 x 1 cm on medial of Foor of right mouth. (10) 1 x 5 cm abrasion on medical and inferior of lt. Chin. (11) Diffuse contusion of anterolateral right of neck near floor of mouth 6 x 4 cm transverse. (12) Abrasion 1. 5x1 cm on it side face near inferior to lt. Eye. 10 (A) So far as the internal injuries on the dead body of Mittal Bharatkumar Khatri are concerned, she has recorded the following injuries: --Contusion of under skin of adjoining area of in. (12) Abrasion 1. 5x1 cm on it side face near inferior to lt. Eye. 10 (A) So far as the internal injuries on the dead body of Mittal Bharatkumar Khatri are concerned, she has recorded the following injuries: --Contusion of under skin of adjoining area of in. No. 1,2,3, and 4,5 --contusion of under skin on right temporal 5x3 cm anterior to posterior with lacmatorra and irregular depressed # of right temporal bone 6 x 4 cm antr to poster "-Corresponding to inj No. 5 x 6 cm irregular round shaped depressed.--# in lt. temporoparietooceipital area separated # fragment found in situ.--Meningeal tear on lt temporoparietal lobe with contusion, laceration of temporoparietal occipital lobe with intraceretoral naemorrag.--SDH ON rt frantal, parietal, temporal and occipital lt,. temporal area, occipital area.--SAH on both hemisphere of brain. 10 (B ). According to her, the cause of death of mittal Bharatkumar Khatri was shock and hemorrhage due to injuries sustained on head and neck. 10 (C ). She has prepared the autopsy report which bears her signature as well as the signature of Dr. GS Makwana. The said autopsy report is produced on record at Ex. 40 which is at page 217 of the compilation. (1) She has performed autopsy examination on the dead-body of Pintu Solanki also on the same day with panel Dr. G. S. Makwana. She noted the following external injuries on the dead-body of Pintu, as mentioned in column 17 of the post-mortem report: (1) CLW 3 x 1 cm verticle on middle of posterior parietal. (2) CLW 3 x 1 cm verticle on Rt. posterior parietal 3 cm right to injury No. 1. (3) CLW 2 x 1 cm on middle superior to occipital protrberance transverse. (4) CLW 3 x 1 cm transverse inferior to middle of occipital protruberance. (5) CLW 2. 5 x 1 cm verticle bone deep on Rt. occipital 3 cm Rt. to midline and 8 cm posterior to rt. ear. (6) 3 x 2 cm transverse contusion on inferior of lt occipital. (7) I/w 2 x. cm transverse on lt chin inferiorly. (4) CLW 3 x 1 cm transverse inferior to middle of occipital protruberance. (5) CLW 2. 5 x 1 cm verticle bone deep on Rt. occipital 3 cm Rt. to midline and 8 cm posterior to rt. ear. (6) 3 x 2 cm transverse contusion on inferior of lt occipital. (7) I/w 2 x. cm transverse on lt chin inferiorly. (1) (a) She also found following internal injuries: --Contusion of under skin of adjoining area of injury No. 1 to 6.--5x3 cm under skin contusion on right fronts temporal area and anterior to posterior with lacmutoma.--10x6 cm transverse under skin contusion on middle of frontoparietal area with haematoma with depressed irregular transverse " 6x4 cm frontoparietal region.--4x4 cm round shaped under skin contusion with haematoma on lt parietotemporal with depressed " irregular it parietotemporal region 5 x 4 cm.--4x3 cm under skin contusion with haematoma on right parietal eminence with 7 cm linear of right parieto occipital downwards. Laterally.--4x4 cm meningeal tear on middle of both parietal with contusion laceration of both parietal lobe with intracerebral Lacmorrage.--SDH on both frontal, parietal, lt temporal and both occipital region.--SAH on both hemisphere and cerebellum. (1) (b) According to her, the case of death of Pintu was shock and hemorrhage due to head injury sustained by him. (1) (c) She has prepared the autopsy report which bears her signature as well as signature of Dr. G. S. Makwana, the penal doctor, Ex. 41, which is at page 225 of the compilation. ( 11 ) IT may be noted that this witness was cross- examined at length and she withstood the test of cross-examination. In her cross-examination she has successfully shown the co-relation between the external injuries and the internal injuries. She has also stated that rigor mortise was spread over both the dead bodies and therefore injuries must have been caused within last 48 hours. It is nobodys case that injuries were self-inflicted or accidental. Therefore, the learned Special Judge has rightly held that both the deceased persons died a homicidal death and according to this Court, the said finding is just and proper and the prosecution has been able to prove that both the deceased persons Mittal and Pintu have died a homicidal death. It is nobodys case that injuries were self-inflicted or accidental. Therefore, the learned Special Judge has rightly held that both the deceased persons died a homicidal death and according to this Court, the said finding is just and proper and the prosecution has been able to prove that both the deceased persons Mittal and Pintu have died a homicidal death. ( 12 ) THIS brings the Court to consider the evidence adduced by the prosecution to establish the charge levelled against the accused for commission of offence punishable under Section 302 of the IPC. ( 13 ) AT the outset, be it stated that there is no eye witness to the incident. The case of the prosecution against the accused depends on the extra-judicial confession made by the accused on telephone to p. W. 1, Avinash Shantilal Rajguru, the complainant, as well as on six circumstances pitted by the prosecution against the accused. ( 14 ) IT may be noticed that the prosecution has examined in all 31 witnesses to bring home the charge levelled against the accused and on the basis of their evidence the conviction was based as admittedly there was no eye witness to the incident. Out of 31 witnesses, 30 witnesses have supported the case of the prosecution but only one witness i. e. , a panch witness turned hostile and he has not supported the panchnama of the scene of offence. ( 15 ) FIRST of all, we shall deal with the evidence adduced by the prosecution in connection with the extra-judicial confession made by the accused, satish Bhikhabhai Patel, before Avinash Shantilal rajguru, the complainant, who has been examined as p. W. 1, at Ex. 71, which is at page 49 of the compilation. (1) P. W. 1, Avinash Rajguru, the complainant, has, inter alia, testified that he is the owner of the pathology laboratory in the name and style of rajguru Pathology Laboratory, where the two deceased persons i. e. , Mittal and Pintu as well as the present accused Satish and his brother Hiren, another co-accused were serving and they all used to sleep in the laboratory during night hours. On 18. 7. 2002 he had gone to the laboratory. On that day all the aforesaid four persons had come to the laboratory on service. At about 9. On 18. 7. 2002 he had gone to the laboratory. On that day all the aforesaid four persons had come to the laboratory on service. At about 9. 30 P. M. , he started for going home from the laboratory and at that time Pintu was present in the laboratory whereas other three persons had gone to take their meals and thereafter all of them slept in the laboratory during the night hours. (2) He has further testified that on 19. 7. 2002 at about 6. 30 - 6. 45 in the morning somebody had made a phone call at his residence which was attended by his wife. The caller asked his wife to give the telephone to him. He, therefore, attended the telephone. The caller introduced himself on telephone that he was Satish. The caller told the complainant that he killed Mittal and Pintu. This witness has further testified that after receiving the telephone call, he went to the laboratory. But the laboratory was locked. He, therefore, returned home for collecting spare key of the laboratory. Thereafter again he went to the laboratory with his wife and police personnel. In the presence of the police personnel, lock of the laboratory was opened and they entered in the laboratory and found dead- bodies of Mittal and Pintu lying in a pool of blood. (3) During the cross-examination of this witness by the learned advocate of the accused, he denied the suggestion that he had no personal knowledge about the four persons sleeping in the laboratory on that day. (4) It may be noted that this witness withstood the test of cross-examination and nothing substantial could be brought out from his evidence which would impeach the credibility of his evidence on the point of extra-judicial confession made by the accused to him on telephone. ( 16 ) TO prove the evidence in the form of extra judicial confession made by the accused on telephone to P. W. 1, Avinash further more clear, the prosecution has examined P. W. 2, Monaben Avinash rajguru, wife of the complainant, at Ex. 34, which is at page 53 of the compilation. (1) In her oral testimony, P. W. 2, Monaben Rajguru, has testified that on 19. 7. 2002 at about 6. 30 A. M. , she received a telephone call. 34, which is at page 53 of the compilation. (1) In her oral testimony, P. W. 2, Monaben Rajguru, has testified that on 19. 7. 2002 at about 6. 30 A. M. , she received a telephone call. On her asking as to who was speaking, the caller asked her to give the telephone to her husband i. e. , P. W. 1, Avinash and, therefore, she gave the telephone to her husband p. W. 1, Avinash. She did not know what her husband had talked with the caller. However, she was informed by her husband that the phone call was made by Satish, who is the accused and informed him that he killed Mittal and Pintu. Thereafter her husband went to the laboratory but as the laboratory was locked, he came back home for collecting spare key and thereafter she and her husband with police personnel went to the laboratory. They opened the lock of the laboratory in presence of police personnel. When they entered in the laboratory they found dead bodies of Mittal and Pintu lying in a pool of blood. (2) It is also required to be appreciated that this witness was also cross-examined by the learned advocate of the accused at great length. However, nothing substantial which could be of any assistance to the accused or which would impeach the credibility of her evidence could be brought out. ( 17 ) ON re-appreciation of the evidence of P. W. 1 and p. W. 2, it is clear that the prosecution has proved that the accused made extra-judicial confession on telephone to P. W. 1, Avinash Rajguru. The accused was serving in the laboratory of P. W. 1. Therefore, he identified the voice of the accused on telephone and whatever information was supplied by the accused to him was proved to be correct and on the basis of the said information, when the complainant went to his laboratory with his wife and police personnel and opened the laboratory, they found the dead bodies of two persons i. e. , Mittal and Pintu in a pool of blood, in the laboratory. ( 18 ) IT is, no doubt, true in view of catena of decisions of the Supreme Court, that evidence in the form of extra judicial confession made by the accused is a very weak piece of evidence and no conviction can be based solely on the basis of the extra judicial confession unless it gets corroboration either from independent evidence i. e. , eye witness or circumstantial evidence. In instant case, on the basis of the extra judicial confession made by the accused on telephone to P. W. 1, Avinash, offence was detected and thereafter the prosecution started collecting the evidence and in the course of the investigation they assembled chain of six circumstances which have been pitted by the prosecution to prove the complicity of the accused for commission of murder of Mittal and Pintu. ( 19 ) THOUGH it is true that the evidence of extra- judicial confession is a very weak piece of evidence, an absolute proposition of law that no conviction can be based on the basis of the extra judicial confession cannot be laid down. It cannot be ignored when shown that such confession was made without any coercion or inducement or promise and made before a person who has no reason to lie. In this connection, it would be appropriate to refer to the judgment of the Supreme Court in the case of guru Singh v. State of Rajasthan, (2001) 2 SCC 205 . The Supreme Court, in paragraph 6 of the said reported decision, has observed as under:"it is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in rao Shiv Bhadur Singh v. State of Vindhya pradesh ( AIR 1954 SC 322 ) this Court again in maghar Singh v. State of Punjab ( (1975) 4 SCC 234 ) held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M. P. ( (1985) 4 SCC 26 ) this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witness who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H. P. ( (1991) 1 SCC 286 ) this Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana ( (1991) Supp (1) SCC 14 ). All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana ( (1991) Supp (1) SCC 14 ). After referring to the judgment in Piara Singh v. State of Punjab ( (1977) 4 SCC 452 ) this Court in Madan Gopal kakad v. Naval Dubey ( (1992) 3 SCC 204 ) held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. " ( 20 ) APPLYING the principles laid down by the Supreme court in the above referred to judgments to the facts of the present case, according to us, evidence of P. W. 1, Avinash Rajguru, not only inspires confidence but it is deposed in such a nature that it cannot be ignored because on the basis of the said confession made by the accused on telephone to p. W. 1, Avinash Rajguru, the offence was detected and the information supplied by the accused to P. W. 1 was found to be true. ( 21 ) BEFORE we proceed to examine the six circumstances pitted by the prosecution to prove the case of murder of two persons against the accused, we shall deal with the law laid down by the Apex court in catena of decisions as to the manner in which the circumstantial evidence can be appreciated and relied upon. (1) It has been consistently laid down by the supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (1) It has been consistently laid down by the supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The above principles are laid down by the Supreme Court in the case of (1) Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 , (2) Eradu v. State of Hyderabad, AIR 1956 SC 316 , (3) earabhadrappa v. State of Karnataka, AIR 1983 SC 446 , (4) State of UP v. Sukhbasi AIR 1985 SC 1224 , (5) Balwinder Singh v. State of Punjab, AIR 1987 SC 350 and (6) Ashok Kumar Chhatterjee v. State of M. P. AIR 1989 SC 1890 . (2) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the case of Bhagat Ram v. State of Punjab, AIR 1954 sc 621 , it was laid down by the Supreme Court that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt. (3) We may also make a reference to a decision of the Supreme Court in the case of C. Chenga Reddy v. State of A. P. (1996) 10 SCC 193 , wherein in paragraph 21 at page 207, the Apex Court has observed as under: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence". (4) In Padala Veera Reddy v. State of A. P. AIR 1990 sc 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "10. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence". (4) In Padala Veera Reddy v. State of A. P. AIR 1990 sc 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " (5) In the case of State of U. P. v. Ashok Kumar srivastava, (1992) 2 SCC 86 , it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. (6) There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Supreme court as far back as in 1952. In the case of hanumant Govind Nargundkar v. State of M. P. AIR 1952 sc 343 , it was observed by the Supreme Court as under: "it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " (7) A reference may be made to a later decision of the Supreme Court in the case of Shard Birdhichand sarda v. State of Maharashtra, AIR 1984 SC 1622 . In the said case, while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of the Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are narrated (in para 153 at page 185) as under: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( 22 ) KEEPING in forefront the clear principles elucidated by the Supreme Court with regard to the appreciation of circumstantial evidence, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused. ( 22 ) KEEPING in forefront the clear principles elucidated by the Supreme Court with regard to the appreciation of circumstantial evidence, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused. ( 23 ) TO prove the case against the accused, the prosecution has pitted against the accused six circumstances which we will now examine one by one. (1) The first circumstance pitted by the prosecution against the accused is that the accused satish Bhikhabhai Patel and co-accused Hiren bhikhabhai Patel were seen together with both the deceased persons. In this connection, again adverting to the evidence of P. W. 1, Avinash Rajguru, ex. 17, it may be noted that P. W. 1, Avinash Rajguru, has testified that accused Satish and his brother hiren and two deceased persons, Mittal and Pintu were serving in his laboratory and all the four persons were sleeping in the laboratory during night hours. He has further testified that on 18. 7. 2002 he went to his laboratory and returned home at about 9. 30 P. M. On that day all the four persons had come on duty in the laboratory. When he started leaving the laboratory for his house at about 9. 30 P. M. , pintu was present in the laboratory whereas other three persons had gone out for meals and all the four persons slept in the laboratory during night hours. He has further stated that he received telephone call in the morning on 19. 7. 2002 and the telephone call was made by accused Satish and on telephone he made extra judicial confession, meaning thereby, on 18. 7. 2002 when P. W. 1, Avinash Rajguru, proceeded to his house at night from the laboratory, deceased Pintu was in his laboratory whereas remaining three persons had gone out for their meals. (2) Mr. NK Majmudar, learned advocate of the accused, has submitted that there is no evidence that they were last seen together because as per the evidence of P. W. 1, Avinash, when he left the laboratory at 9. (2) Mr. NK Majmudar, learned advocate of the accused, has submitted that there is no evidence that they were last seen together because as per the evidence of P. W. 1, Avinash, when he left the laboratory at 9. 30 P. M. , only Pintu was present in the laboratory and other three persons i. e. , deceased Mittal, accused Satish and his brother, hiren who is another accused were not in the laboratory as they had gone out for taking meals and there is no evidence as to when they returned to the laboratory and as to whether they all were with pintu who was very much present in the laboratory at the time when P. W. 1, Avinash left his Laboratory, slept in the laboratory during night hours. Therefore the chain is broken and there is a gap and hence the prosecution case that both the deceased persons and the accused Satish and his brother Hiren were last seen together cannot be accepted. (3) We are not prepared to accept the submission made by Mr. Majmudar, learned advocate of the accused. P. W. 1, Avinash saw deceased Mittal and two accused persons going together for taking their meals and as uaual they must have come to the laboratory for sleeping there during night hours and therefore in absence of anything contrary there is a reason to believe that all the four persons, that is, two deceased persons, Mittal and Pintu, and the accused Satish and his brother Hiren were in the laboratory during night hours. This is the first circumstance which is established by the prosecution against the accused. ( 24 ) THE second circumstance propounded by the prosecution is that after the alleged incidence, the accused fled from the scene of offence on the motor cycle CBZ bearing registration No. GJ-1-CN-6224 belonged to deceased Pintu. In this connection, p. W. 7, Jigarbhai Ashokbhai Pandya, Ex. 49 whose testimony is at page 70 of the compilation, has, inter-alia, stated in his oral testimony before the court that when he was returning to his house at about 10 P. M. , he found the accused Satish going on cbz motor cycle GJ-1-CN 6224. In his cross- examination he admitted that he does not know as to where accused Satish was residing and he also does not know the family of accused Satish. In his cross- examination he admitted that he does not know as to where accused Satish was residing and he also does not know the family of accused Satish. It may be noted that from the evidence of P. W. 7, Jigarbhai pandya, factum of presence of accused outside the laboratory of P. W. 1 on the fateful night and after the incident he fled on the motor cycle is proved. So, according to us, the second circumstance of the accused fleeing on the motor cycle belonged to deceased Pintu has also been successfully proved by the prosecution. ( 25 ) COMING to the third circumstance, it is the case of the prosecution that after committing the crime, the accused stayed in Hotel Panetar Palace, situated in Odhav, Ahmedabad from 24. 7. 2002 to 29. 7. 2002. To prove the third circumstance the prosecution has examined P. W. 28, Jitubhai Somabhai Patel, owner of hotel Panetar Palace, Odhav, Ahmedabad, at Ex. 90, which is at page 105 of the compilation. He has, inter-alia, testified that he is doing hotel business in the name and style of Hotel Panetar at odhav Char Rasta and in his hotel there are 40 rooms. He maintains a register for making necessary entries therein with regard to name and address of the occupant, room number, the day on which the room was occupied, etc. According to the testimony of this witness, on 24. 7. 2002 at about 3 P. M. , one person in the name of Deepakbhai Ramanbhai Patel, aged about 36 years, residing near Chikali Bus Stand had come to his hotel and he was allotted room no. 244 at a daily rent of Rs. 100/- He had also received Rs. 200/- by way of deposit from him. He had put his thumb impression on the register. His name was registered at Sr. No. 514 in the register. This witness has further testified that when the police came in the hotel for interrogation alongwith the accused he came to know that the real name of the accused is Satish Bhikhabhai Patel and the name deepakbhai Ramanbhai Patel given by the accused and written in the register was a fictitious name. He has also produced extract of the registrar at Ex. 91, which is at page 279 of the compilation. He has also identified the accused in the open court. He has also produced extract of the registrar at Ex. 91, which is at page 279 of the compilation. He has also identified the accused in the open court. (1) This witness was also cross-examined at length by the learned advocate of the accused and he withstood the test of cross-examination and nothing substantial has been brought out from his evidence which would impeach the credibility of the evidence of this witness with regard to the circumstance that the accused stayed in his hotel from 24. 7. 2002 to 29. 7. 2002 in a fictitious name. ( 26 ) WITH reference to the fourth circumstance pitted by the prosecution against the accused that he gave a fictitious name to the owner of Hotel Panetar for entering it in the register maintained by the hotel while checking in the hotel, P. W. 28, Jitubhai somabhai Patel, owner of the Hotel Panetar Palace, odhav, Ahmedabad, Ex. 90, has stated in his oral testimony that the accused had given his name as deepakbhai Ramanbhai Patel while checking in the hotel. He came to know his real name when the police came to his hotel with the accused for interrogation. The said act of the accused is nothing but cheating by personation. If at all he was innocent then there was no reason for him not to attend to his usual work in the laboratory of P. W. 1, avinash and to take shelter in a hotel in Ahmedabad for about six days and that too in a fictitious name when he is actually a resident of Ahmedabad itself. This act on the part of the accused shows his mens rea for commission of the murder of two persons, mittal and Pintu and he absconded from his house and from the place of service for such a long period. According to us, he remained absent from his normal place of work without any justifiable reason and stayed in a hotel in Ahmedabad itself on fictitious name when he has his house in Ahmedabad, is a strong circumstance against him which would establish his complicity with the commission of the crime. According to us, he remained absent from his normal place of work without any justifiable reason and stayed in a hotel in Ahmedabad itself on fictitious name when he has his house in Ahmedabad, is a strong circumstance against him which would establish his complicity with the commission of the crime. ( 27 ) THE fifth circumstance which is pitted against the accused by the prosecution is with regard to recovery panchnama of clothes put on by the accused at the time of commission of the offence, having blood stain which is of the same group of blood of both the deceased, which were recovered from a well in Chhani village. (1) To prove this circumstance, the prosecution has examined P. W. 17, Kiritbhai Dahyabhai Patel, Fire brigade Officer, Ex. 63, page 87 of the compilation, p. W. 18, Kiritkumar Ratilal Patel, driver of Fire brigade, Baroda, Ex. 64, page 88 of the compilation and P. W. 19, Harisinh Nadsinh Raj, Fire Brigade, ex. 65, which is at page 89 of the compilation. (2) P. W. 17, Kiritbhai Dahyabhai Patel, in his oral testimony at Ex. 63 has testified that he is serving as an Officer in the fire brigade in Vadodara. He received a message from the fire control office that near Chhaya Puri Nala, clothes were lying in a well and they were to be taken out from the well. Pursuant to this message, he went there and with the help of mechanical claw (bhiladi) took out the clothes from the well. Similar is the evidence of p. W. 18, Kiritkumar Ratilal Patel, a driver of Fire bridged, Vadodara, whose testimony is recorded at ex. 64 and P. W. 19, Harisinh Nadsinh Raj, who is also working in fire brigade in Vadodara, whose evidence is recorded at Ex. 65. They have identified the muddamal clothes. (3) As per the prosecution case, as blood stains were found on the clothes of the accused, they were sent to FSL for chemical analysis. ( 28 ) THE sixth and the last circumstance pitted against the accused by the prosecution to prove his complicity in the commission of double murder is the analysis reports received from the FSL. From the FSL reports it transpires that the clothes put on by the accused were stained with blood. As per the report of the FSL four samples were sent. From the FSL reports it transpires that the clothes put on by the accused were stained with blood. As per the report of the FSL four samples were sent. Sample No. 3 is pant of the accused and blood stain of the same group of blood of the deceased persons i. e. , Group "b" was found on the pant as per Ex. 83, which is at page 269 of the compilation. FSL reports are on record at Ex. 84 and 85. Sample No. 4 was blood collected from the pool of blood where the dead bodies of Mittal and Pintu were lying whereas sample no. 5 was the blood sample of deceased Mittal. (1) So far as the cloth put on by the accused at the time of commission of the offence is concerned, the report of FSL is produced on record. As per the report of the FSL, sample No. 3 was a black coloured pant which was stained with human blood of "b" group. The blood Group found on the cloth put on by the accused at the time of commission of the offence as well as the blood group of both the deceased persons is same, i. e. , "b" group. According to us, this is one of the most important circumstance which would connect the accused with the murder of two persons Mittal and Pintu. (2) As per FSL report, the accused was also having blood group "b". But it was not the case of the defence that the blood stain found on the cloth put on by the accused was stained by his own blood. Moreover, no injury was found on the body of the accused so as to establish that the cloth put on by him was stained with his own blood. Since it is not his own blood that stained his cloth, explanation as to when and how his cloth was stained with human blood of "b" group is not coming forward from the accused. This is the sum and substance of the circumstantial evidence pitted by the prosecution against the accused. ( 29 ) MR. NK Majmudar, learned advocate of the accused, has contended that motive for committing murder by the accused is not established. This is the sum and substance of the circumstantial evidence pitted by the prosecution against the accused. ( 29 ) MR. NK Majmudar, learned advocate of the accused, has contended that motive for committing murder by the accused is not established. As per the charge sheet, motive attributed to the accused is that while taking meals, altercations took place and thereafter the accused inflicted injuries on both the deceased persons which had resulted in their death. But this fact is not proved. If at all there was a quarrel at the time of taking meals then in the panchnama mention about the presence of utensils as well as remainder of food, etc. , ought to have been found but a perusal of the panchnama shows that mention about such things are absent and therefore it can be safely said that the prosecution has failed to prove the motive and hence the case against the accused is not proved beyond doubt. According to him, motive is an important factor in the case of circumstantial evidence. According to us, the aforesaid contention raised by Mr. NK majmudar, learned advocate of the accused, is found absolutely meritless. ( 30 ) IN the case of State of U. P. v. Babu Ram, AIR 2000 SC 1735 , the Supreme Court has observed as under:"we are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye- witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any persecution to bring on record what was in the mind of the respondent. However, it cannot be forgotten that it is generally a difficult area for any persecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. "in view of the clear elucidation of the Supreme court in the above referred to judgment, no doubt, motive behind a crime is a relevant factor. However, absence of motive in itself would not be fatal to the prosecution case, more particularly, in instant case, when the prosecution has succeeded in exhibiting the complicity of the accused with other circumstantial evidence adduced by it coupled with the extra judicial confession which leaves no room for any other conclusion except the only one that the accused was guilty of the offence of committing double murder. ( 31 ) IT is the contention of Mr. NK Majmudar, learned advocate of the accused that P. W. 3, Harish Ramanlal soni, a panch witness in respect of panchnama of the scene of offence, whose evidence was recorded at ex. 35, which is at page 56 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 believed, is absolutely feeble and has no merit and substance. ( 32 ) 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 to veto to the panchas so far as that question of culpability of an accused is concerned, which is not permissible in criminal jurisprudence. 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 to 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. 31, Rameshchandra Shankerrav jagtap, Senior Police Inspector, Vatva Police station, who made panchnama of the scene of offence and whose evidence is recorded at Ex. 98, which is at page 109 of the compilation, is not only inspiring confidence, but, gets corroboration from the other evidence on record and from his evidence the panchnama is proved and it is given Exhibit No. 99. Therefore, according to us, 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 extra judicial confession made by the accused on telephone to P. W. 1, Avinash Rajguru, and also other six circumstances pitted against him by the prosecution which we have discussed in this judgment, the inference of guilt of the accused is cogently and clearly established which unerringly pointing towards the guilt of the accused and the circumstances taken cumulatively form a chain so as to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and, therefore, the contention raised by Mr. Majumdar, pales into insignificance and meets with the logic end of rejection. Majumdar, pales into insignificance and meets with the logic end of rejection. ( 33 ) ON reappreciation, reevaluation, reanalysis and careful scrutiny of the entire evidence on record, this court is of the firm opinion that the complicity of the accused in murdering deceased mittal and Pintu is clearly established by the prosecution on the basis of the evidence in the form of extra judicial confessional and six circumstances which have been discussed in detail in foregoing paragraphs of this judgment. No ground is made out by the learned advocate of the accused to convince us so as to interfere with the said finding of fact recorded by the learned Special Judge. Therefore, the finding recorded by the learned Special Judge, according to this court, is just and proper. ( 34 ) ON overall appreciation of the evidence, we are satisfied and there is no illegality or infirmity in the reasons assigned by the learned Special Judge for convicting the accused for commission of the offence punishable under section 302 of the IPC for committing murder of Mittal and Pintu. Mr. NK majmudar, learned advocate of the accused, has not been able to persuade us to take a view contrary to the view taken by the learned Special Judge. Further more, the ultimate conclusion and the resultant order of conviction recorded by the learned Special judge is found to be very imminently, 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 Special Judge. ( 35 ) IN aforesaid view of the matter, there is no doubt that both the deceased persons i. e. , Mittal khatri and Pintu died a homicidal death because of the injuries received by them and the accused is the culprit who caused the injuries on vital part of both the deceased persons and killed them and therefore he is guilty of double murder punishable under section 302 of the IPC. ( 36 ) 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. ( 36 ) 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 to what category a particularly 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. State of u. P. (1998) 7 SCC 117, 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. 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. 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 anti-social 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 Rajapara v. 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. 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. State of Haryana, (2002) 3 SCC 76 , (b) Sardar Khan v. State of karnataka, (2004) 2 SCC 442 and ( c ) Simon and others v. 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. ( 37 ) THE contention that the accused had involved in a criminal activity in past and against him two FIRs came to be lodged out of which one FIR was for committing murder and, therefore, the accused is a hardened criminal and he has killed two innocent persons and the way in which the murder was committed was ghastly, cruel, brutal, diabolic and dastardly in nature and there is no scope that he can be rehabilitated in future and restored to the society and, therefore, death sentence imposed on him should be confirmed by this Court, has also no substance. ( 38 ) IN this connection, it would be appropriate to refer to the decision of the Supreme Court in the case of Krishan v. State of Haryana, AIR 1997 SC 2598 . In the said 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 the offender was made sole basis for awarding death sentence. In the said 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 the 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 the said case was not falling into category of rarest of rare cases, death sentence was commuted to one of life imprisonment. ( 39 ) IN the case of Ashok Laxman Sohani and another v. State of Maharashtra, (1977) 2 SCC 103 , the supreme Court while dealing with a case based on circumstantial evidence and the quantum of sentence as to whether the sentence of death was proper or not, has, while commuting the sentence of death to life imprisonment, in para 12 of the judgment, observed as under:"the other question that remains is whether the courts below were right in passing the sentence of death on appellant No. 1. We feel that as appellant No. 1 was labouring under a hallucination, however unfounded it may be, and as there is no corpus delicti in the instant case so that the courts may be in a position to know the nature and character of the injuries and to assess that the murder was of such a brutal or dastardly character that only a death sentence could be imposed on appellant No. 1 and in the absence of there being anything to show the exact circumstances in which the murder took place we would rather like to err on the side of leniency. We do not find any special reasons for awarding the extreme penalty of the death on the appellant No. 1. We, therefore, allow appeal of appellant No. 1 only to this extent and commute his sentence from one of death to imprisonment for life. " ( 40 ) 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. " ( 40 ) 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 so mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9. 8. 199. 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 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. ( 41 ) 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, we have already held the accused guilty of the offence of commission of double murder. However, motive for committing the crime pleaded by the prosecution has not been established at all. Therefore, the motive behind the commission of the crime has not been brought on the record of the case. During the fateful night what happened in the laboratory of P. W. 1, Avinash Rajguru, between the two deceased persons and the accused Satish and his brother Hiren is not known to the prosecution and what was the aggravating circumstance to the accused for committing the crime is also not known to the prosecution and has not been brought on the record of the case. The Court has convicted the accused on the basis of the extra judicial confession made by accused on telephone to P. W. 1, avinash Rajguru, as well as six circumstances which are capable of connecting the accused with the offence and there is no escape from the conclusion that within all human probability the crime was committed by the accused and in view of the fact that how and under what circumstances the incident had taken place in the laboratory of P. W. 1, Avinash rajguru, on the fateful night is not known and in the absence of there being anything to show the actual circumstances for committing the murder and the failure on the part of the prosecution to establish the motive for commission of the offence, we would like to err on the side of leniency. Therefore, we do not find any special reason for imposing extreme penalty of death on the accused, as according to us this is not a rarest of rare case to impose death penalty on the accused. ( 42 ) HAVING regard to the principles laid down by the supreme Court in several reported decisions and more particularly in view of the fact that we have recorded conviction on the basis of extra judicial confession and circumstantial evidence, this court is of the opinion that death sentence imposed on the accused deserves to be commuted to one of the life imprisonment. ( 43 ) THE contention raised Mr. Gohil, 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 eked out his livelihood by working in the laboratory of p. W. 1, Avinash Rajguru, has criminal background or felonious propensity and that it would not be reasonably possible to get him rehabilitated, or that he would be a menace to the society. ( 44 ) 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 double murder, it is also required to be held that this is not a rarest of rare case 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. ( 45 ) FOR the foregoing reasons, Criminal Confirmation case No. 3 of 2005 is dismissed whereas Criminal appeal No. 1176 of 2005 is partly allowed. Resultantly, conviction of the accused for commission of the offence punishable under Section 302 of the IPC for committing double murder is hereby confirmed and maintained. However, death sentence imposed on him for commission of murder of mittal and Pintu is hereby commuted and modified into RI for life. Accordingly, Criminal Confirmation Case No. 3 of 2005 and Criminal Appeal No. 1176 of 2005 stand disposed of. Muddamal to be disposed of in terms of the directions given by the learned Special Judge in the impugned judgment and order. .