Judgment Chandramauli Kr.Pd. and J.N.Singh JJ. 1. Judgment and order dated 15th December, 2003 passed by the 6th Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 583 of 1998, inflicting the sentence of death to accused Prajeet Kumar Singh, upon his conviction under Sec.302 of the Indian Penal Code has necessitated this reference under Sec.366 of the Code of Criminal Procedure. Said Prajeet Kumar Singh has also pre ferred an appeal from the said judgment and order of his conviction and sentence which has been registered as Criminal Appeal No. 4 of 2004. Besides, the said Prajeet Kumar Singh has also been convicted under Sec.307 of the Indian Penal Code for which no separate sentence has been awarded to him. Both the cases, arising out of the same judgment and order, have been heard together and are being disposed of by this common judgment. Referring the said Prajeet Kumar Singh hereinafter as appellant, we may mention that by the same judgment one Ram Badai Singh, father of the appellant, has been acquitted of the charges framed against him. 2. As per the fardbeyan of one Pawan Kumar Thakur (RW. 3), recorded at 4.00 A.M. on 19.4.1998 at M.J.K. Hospital, Bettiah, the prosecution case, in short, is that the appellant, a friend of his son Prakash Kumar (P.W.1) was living in his house at Supriya Road in Mirja Toli of Bettiah town since last 4 years and also used to take his daily meal for which he used to give Rs. 500.00 per month. However, since last several months he had not paid the amount and the appellant owed Rs. 4000.00 altogether as rent for house and food to the informant for which the informant regularly made demands. Four-five days ago, when the informant made the demand, the appellant said that he was going home to bring money. After the appellant went home, one Sala of his brother, namely, Chandra Bhushan Pandey, came to informants house in search of appellant. The informant did not allow him to enter the house as he appeared to be of criminal nature. The day before i.e. on 18.4.1998, the appellant came back at 3.00 P.M. After having dinner when the informant asked for his dues, the appellant told him that he should accompany him to his home where he would be paid his money. The informant did not allow him to enter the house as he appeared to be of criminal nature. The day before i.e. on 18.4.1998, the appellant came back at 3.00 P.M. After having dinner when the informant asked for his dues, the appellant told him that he should accompany him to his home where he would be paid his money. Thereafter, the informant and his wife went to sleep in their room on the third floor of the house and the appellant also went to sleep in an adjoining room. All the children were sleeping on the second floor below. All of a sudden at 2.30 in the night the informant and his wife heard the scream of their son and they woke up suspecting that both the children were quarrelling among themselves. However, when the informant came down to second floor with his wife, he saw that appellant had assaulted his younger son Deepak Kumar with a big dab (dagger like weapon) due to which he had died. As soon as the appellant saw them, he also assaulted the informant, his wife (RW. 2), his elder son Prakash Kumar (RW. 1), his daughter Kiran Kumari (deceased), his niece Pooja Kumari (deceased) with the dab and caused grievous injuries to them. All of them were brought to M.J.K. Hospital where the statement of the informant was recorded by the Investigating Officer (P.W.12). It may be stated here that all the injured were referred to P.M.C.H., Patna for treatment. However, Kiran Kumari and Pooja Kumari succumbed to their injuries later on. 3. On the basis of fardbeyan, Bettiah Town P.S. Case No. 193/1998 was registered under Sections 302 and 307 of the Indian Penal Code against the appellant and investigation was started by the Investigating Officer (RW.12). During investigation the witnesses further stated that three named persons, namely, Ram Badai Singh, father of the appellant, Ajit Singh, brother of the appellant and Chandra Bhushan Pandey and a few others were waiting at the gate of the house of the informant at the time of occurrence and the appellant fled with them after jumping from the third floor. As such, after completion of the investigation, charge-sheet was submitted by the police against all the four accused persons. Thereafter, cognizance was taken against all the four accused persons. As such, after completion of the investigation, charge-sheet was submitted by the police against all the four accused persons. Thereafter, cognizance was taken against all the four accused persons. Charges were framed under Sections 302, 307, 302/34 and 307/34 of the Indian Penal Code and the charged accused were put on trial. However, during trial, accused Ajit Singh and Chandra Bhushan Pandey absconded and hence by order dated 4.1.2003 their case was separated and the trial proceeded against the appellant and the said Ram Badai Singh, his father. 4. During the trial prosecution examined altogether 18 witnesses. Out of them RWs. 1, 2 and 3 are injured eye witnesses and amongst them RW. 3 is the informant and father; RW. 2 is the mother and P.W.1 is the elder brother of deceased Deepak Kumar; RW. 4 and RW. 8 are witnesses to seizure of Khukhari (the weapon) and bed sheet; RW. 5 is the doctor of M.J.K. Hospital, who held postmortem examination of the bodies of Kiran Kumri and Pooja Kumari on the sme day; RW. 7 is the doctor of the same hospital who examined the three injured, found multiple incised wounds on their person and gave his report; RW. 9 and RW. 10 are witnesses to the inquest of dead body of Deepak Kumar and RW. 11 is witness to inquest of dead bodies of Kiran Kumari and Pooja Kumari; RW. 12 is the Investigating Officer; RW 13 and RW. 14 are witnesses on the point of keeping one lac of rupees with the informant on 18th for safe custody and father, brother and a friend of appellant having come to the house of informant on the day and these witnesses having come to know about the incident in the morning; P.W.15 is a witness of jumping of appellant from the roof and his fleeing away with 4-5 persons whom he names; RW. 16 is the Judicial Magistrate who recorded the statements of RWs. 13, 14 and 15 and one another under Sec.164 Cr.P.C. and RWs. 17 and 18 are doctors of P.M.C.H., Patna who deposed on the point of injured witnesses having been admitted and having received treatment there. 5. P.W.1 Prakash Kumar Thakur is the son of the informant and has sustained injury on his head. 13, 14 and 15 and one another under Sec.164 Cr.P.C. and RWs. 17 and 18 are doctors of P.M.C.H., Patna who deposed on the point of injured witnesses having been admitted and having received treatment there. 5. P.W.1 Prakash Kumar Thakur is the son of the informant and has sustained injury on his head. He has stated in his evidence that he used to study alongwith the appellant in Saraswati Shishu Mandir and living in the hostel and during this period friendship developed amongst them. After completion of the house at Supriya Road, where occurrence had taken place, he stopped living in the hostel. Still appellant used to visit him frequently and cultivated good relationship with the members of his family. Appellant made request to stay at their residence and attend the school with a promise that he would pay Rs. 500.00 towards food and lodging. The appellant started living with the family of this witness since 3 to 4 years prior to the occurrence. According to him 5 to 6 months prior to the occurrence appellant stopped paying the charges and avoid his father whenever he put demand for the payment. On pressure being put by his father to pay the outstanding dues appellant went to his village for bringing the money. 5. On the day of incident according to this witness he went to sleep in a room in the second floor of the house, whereas his younger sisters Kiran Kumari, Puja Kumari and his younger brother Deepak Kumar went to sleep in another room adjoining his room. On hearing the sound of crying he woke up and saw appellant assaulting his younger brother Deepak Kumar with dabiya and due to the injuries he fell down. According to this witness when he tried to prevent appellant from assaulting, he gave dabiya blow on his head causing cut injury on the left portion of the head extending below the left eye. This witness saw his sisters Kiran Kumari and Puja Kumari weeping in injured condition and when his father Pawan Kumar Thakur (P.W. 3) and mother Geeta Devi (P.W. 2) came down from the third floor to the second floor on hearing, the sound of weeping and wailing and tried to prevent the appellant from assaulting the children, he assaulted his parents by Dabiya and fled towards the third floor of the house. According to this witness, his brother Deepak Kumar succumbed to the injuries at the place of occurrence and his sisters Kiran Kumari and Puja Kuari died in way while being taken to Patna Medical College & Hospital. 6. P.W. 2 Geeta Devi is the wife of the informant, who had also sustained injuries in the occurrence. According to her, on the date of occurrence appellant came in the night and on being asked to take meal he replied that he had already taken meal and would not eat anything. Informant at that time demanded the dues from him and the appellant asked the informant to come to his house to receive the money. Thereafter appellant went to his room and this witness alongwith her husband after taking meal went to sleep in a room in the third floor of the house. According to this witness, at 2.30 clock in the midnight of 18/19.4.1998 they woke up at the sudden screaming of the children and assumed that they are quarrelling among themselves, she alongwith her husband P.W.3 came to the second floor and saw appellant assaulting their younger son Deepak Kumar with Dab, as a result thereof he had fallen on the floor and died. According to this witness, appellant also caused injury to her daughter Kiran Kumari, son Prakash Kumar and daughter of her brother-in-law, namely, Puja Kumari and they were bleeding profusely in pain and running in the room to save themselves. When she and her husband tried to intervene, appellant assaulted on her head and right shoulder with the Dab, as a result thereof she sustained serious injuries and fell down on the floor. According to this witness, appellant further assaulted her husband with Dab as a result of which he sustained deep cut injury on the right side of his face extending from the eye to the lower portion of the cheek and another deep cut injury in the left side of his neck. According to this witness, her husband tried to contain the appellant using the cricket-bat and thereafter appellant fled to the third floor and jumped down from there and fled away. She was taken for treatment to the Patna Medical College & Hospital and when he regained consciousness she was told by her husband that Kiran Kumari and the daughter of her brother-in-law Puja Kumari had died. 7. She was taken for treatment to the Patna Medical College & Hospital and when he regained consciousness she was told by her husband that Kiran Kumari and the daughter of her brother-in-law Puja Kumari had died. 7. P.W. 3 Pawan Kumar Thakur is the informant of the case and he had also sustained injuries in the occurrence at the hands of the appellant. Like other witnesses, on the night of occurrence he heard the sound of screaming and presuming that the children are quarrelling among themselves came down to the second floor of the house from the third floor of the house alongwith wife and found that the appellant had killed his son Deepak Kumar and had seriously injured his another son Prakash Kumar (P.W.1), daughter Kiran Kumari (deceased) and niece Puja Kumari (deceased) with Dab. According to this witness, when he and his wife tried to save the children, appellant asaulted his wife with Dabiya thrice and further inflicted a blow on his face, as a result of which his right cheek protruted due to cut injury. He had further stated that when the appellant was attacking indiscriminately with Dabiya he defended him with a cricket-bat and thereafter appellant fled on the upper floor, he followed him and ultimately he jumped to the terrace of the second floor and jumped down and fled away. 8. P.W.7 Dr. Ganga Narayan Singh had examined the aforesaid injured witnesses, namely, P.W.1 Prakash Kumar, P.W. 2 Geeta Devi and P.W. 3 Pawan Kumar Thakur on 19.4.1998 in the emergencey ward of M.J.K. Hospital and found the following injuries on the person of Pawan Kumar Thakur. (i) Incised wound on right cheek extending from right angle of mouth to right temporal region 10" x 1" x muscle deep. (ii) Incised wound on left side of neck 1" x 1/2" x muscle deep. He also found the following injuries on the person of Geeta Devi: (i) Incised wound on scalp right side-1 1/2 x 1/2" x scalp deep. (ii) Incised wound on right shoulder rigion 1" x 1" x muscle deep. (iii) Incised wound on left elbow and forearm 1" x 1" x muscle deep. This witness had also examined Prakash Kumar (P.W.1) and had found incised wound on left side of skull 1" x 1/2"x scalp deep on injured Prakash Kumar. (ii) Incised wound on right shoulder rigion 1" x 1" x muscle deep. (iii) Incised wound on left elbow and forearm 1" x 1" x muscle deep. This witness had also examined Prakash Kumar (P.W.1) and had found incised wound on left side of skull 1" x 1/2"x scalp deep on injured Prakash Kumar. 9 In the opinion of the doctor, these injuries were caused by sharp cutting weapon and in his opinion injury no. (i) sustained by informant Pawan Kumar Thakur was dangerous to life. As regards the injuries on Geeta Devi, he had opined that had timely and proper treatment not provided she would had died. 10. P.W. 5 Dr. Mahashray Singh at the relevant time was posted as Civil Assistant Surgeon at M.J.K. Hospital and conducted post mortem examination on the dead body of Deepak Kumar and found following antemortem injuries on his person: (i) Incised wound over the right cheek 2" x 1" x muscle deep. (ii) Incised wound over the occipital region of the head 4" x 1" x bone deep. (iii) Incised wound over the back of the neck transversally 4" x 1" x bone deep. (iv) Incised wound over the right scapular region 4" x 2" x bone deep. (v) Incised wound from shoulder to the mid of upra 8" x 3" x bone deep. (vi) One incised wound transversally over the shoulder joint 3" x 1" humeral head transversally. (vii) Incised wound over the right elbow 2" x 1"x bone deep. (viii) Incised wound on the right forearm 3" x 1"x bone deep. (ix) Incised wound over the right hand 3" x 1/2" x bone deep. (x) Incised wound over the right fore-arm from the base of the middle finger to the lower part of the forearm 6" x 2" x bone deep. (xi) Incised wound on left hand 2" x 1" x bone deep. (xii) Incised wound over the left palm. All the thinner muscle upto carpel bone were cut. (xiii) Incised wound over the left temporal region of the head 2 1/2" x 2" up to bone. 11. In his opinion all the injuries were caused by sharp cutting substance and death had taken place due to haemorrhage and shock on account of the injuries sustained by the deceased, which were sufficient in ordinary course of nature to cause death. 12. RW. 6 Dr. 11. In his opinion all the injuries were caused by sharp cutting substance and death had taken place due to haemorrhage and shock on account of the injuries sustained by the deceased, which were sufficient in ordinary course of nature to cause death. 12. RW. 6 Dr. Madhusudan Shukla at the relevant time was posted as Civil Assistant Surgeon in M.J.K. Hospital and conducted the post mortem examination on the dead body of Kiran Kumari and found one stitched wound on front and left side of the neck and after removing the stitches he found the wound to be of the size of 4" x 1/2" x 1" deep and the trachea as also muscles and jugular vessels on the left side of the neck cut. 13. In his opinion, the death had taken place on account of the injuries sustained by her which in his opinion was sufficient in ordinary course of nature to cause death. 14. This witness had also conducted the post mortem examination on the dead body of Puja Kumari and found the following injuries on her person: (i) Stitched wound on right side of face. After opening the stitches it was an incised wound of 5" x 3/4" x bone and brain cavity deep. The wound extends from right ear to the skull. The parietal bone of the right side was found cut and brain matters were found peeping out from the cut portion of the bone. (ii) Stitched wound on upper portion of right arm. After opening the stitches the wound was an incised wound of 3" x 1" x bone deep. The head of humerous was found cut through and through. (iii) Stitched wound on right wrist on its dorsum. After opening the stitches, the wound was incised wound of 2 1/2" x 1" x bone deep. The bone beneath the wounds were found cut. (iv) Stitched wound on the dorsum of the left hand. After opening the stitches, it was incised wound 1 1/2" x 1/2" x 3/4" deep. The vessels and bones beneath the wounds were found cut. 15. In the opinion of the doctor, these injuries were ante-mortem in nature and caused by sharp cutting substance and the death had occurred due to shock and haemorrhage as a result of the above injuries. 16. The vessels and bones beneath the wounds were found cut. 15. In the opinion of the doctor, these injuries were ante-mortem in nature and caused by sharp cutting substance and the death had occurred due to shock and haemorrhage as a result of the above injuries. 16. The trial Court considered the evidence of injured eye witnesses as well as objective and material evidence and evidence of other supporting witnesses and found the prosecution case proved. The trial court further found the case a rarest of rare case and as such while convicting the appellant under Sections 302 and 307 of the Indian Penal Code, sentenced him to death as said earlier. 17. Learned Counsel for the appellant has assailed judgment and order of the trial court on different counts. He has submitted that appellant had not come to the house on the day of occurrence and he has been falsely implicated in the case at the instance of the brother-in-law of the informant who has enmity with the father of the appellant. He further submitted that no motive has been established in the case for the commission of the alleged occurrence by the appellant. He has further submitted that prosecution story with regard to jumping of the appellant from the third floor of the house is improbable as it was impossible to jump from such a height and flee away. He further submitted that, in fact, some dacoity had been committed in the night in the house of the informant in which injuries were sustained by the inmates. He lastly submitted that this was not a case of rarest of the rare kind and therefore the trial court ought not to have inflicted punishment of death to the appellant. 18. Learned Counsel for the State, on the other hand, submitted that the evidence of the prosecution witnesses are consistent and they have proved the case of the prosecution to the hilt. He further submitted that the submission of the learned Counsel for the appellant are not supported by any evidence on record. He further submitted that the act alleged to the appellant is rarest of rare kind as he attempted to do away the life of all the members of the family of the informant and therefore he deserves the extreme punishment of death. 19. He further submitted that the act alleged to the appellant is rarest of rare kind as he attempted to do away the life of all the members of the family of the informant and therefore he deserves the extreme punishment of death. 19. We have considered the submissions of the learned Counsel for the parties and the deposition of the witnesses. As said earlier, RWs. 1, 2 and 3 are eye witnesses and injured. They have consistently stated that the appellant had gone home four to five days back, but had returned on the day of occurrence. They have witnessed the assault by the appellant on the younger members of the family who all succumbed to the injuries. They are natural eye-witnesses to the occurrence. They have sustained serious injuries on their persons and hence their presence at the time of occurrence cannot be doubted. They are parents and brother of the two deceased and closely related to third deceased and it is unlikely that they will leave the culprits and implicate innocent person. The fardbeyan was recorded soon after the occurrence in M.J.K. Hospital at 4.00 A.M. Learned Counsel for the appellant could not point out anything from the record to suggest that the appellant was at his village home and had not come back on the day of occurrence. Although suggestions have been advanced to the witnesses but there is nothing on record to infer that the appellant was falsely implicated in the case due to enmity between the brother-in-law of the informant and the father of the appellant. 20. So far as motive is concerned, it has come in evidence that appellant had not paid rent to. the informant since last eight months, for which the informant had made repeated demands. The appellant had gone home 4-5 days back for bringing the money, but had returned on the day of occurrence without the money. On the day of occurrence also informant had demanded the rent from the appellant. Learned Counsel for the appellant submitted that this was too trifle a matter for the incident. However, it is settled law that when direct evidence is consistent on the manner of occurrence at the hands of the appellant, motive takes a back stage. What transpired in the mind of the appellant is not possible to assess. Human behaviour is a mystery to human kind. However, it is settled law that when direct evidence is consistent on the manner of occurrence at the hands of the appellant, motive takes a back stage. What transpired in the mind of the appellant is not possible to assess. Human behaviour is a mystery to human kind. What exactly predominated in the mind of the appellant to commit such a ghastly crime is not possible to presume. However, this cannot render the prosecution case doubtful when the evidences are otherwise consistent and trustworthy. 21. So far as submissions of learned Counsel for the appellant that it was not possible for the appellant to jump from third floor of the house is concerned, we find that RW. 3 in his evidence has said that he saw the appellant creeping through the terrace of the third floor to the terrace of the second floor and then he jumped down. The other eye-witnesses are also consistent about appellant having jumped and fled away. It has come in the evidence of the witnesses that the height of the building is 35 ft. and it is not always impossible to jump from that height. Moreover, it is quite possible that, as stated by RW. 3, the appellant may have jumped from terrace and then fled away. 22. So far as story of dacoity propounded by learned Counsel for the appellant is concerned, we do not find any support to it from any material on record. There is no evidence on record to suggest that any article or cash was looted away from the house or any attempt to break open the outer door of the house or the shop of the informant was made in the night. The Investigating Officer in his inspection of the place of occurrence has not found anything which could suggest that a burglary or any attempt of burglary was made in the house in the night. Thus, I do not find substance in the submissions of the learned Counsel for the appellant. 23. As stated earlier, P.Ws. 1, 2 and 3 are injured eye witnesses, P.W.1 being the elder brother, P.W. 2 being the mother and P.W.3 being the father of the deceased Deepak Kumar. Thus, I do not find substance in the submissions of the learned Counsel for the appellant. 23. As stated earlier, P.Ws. 1, 2 and 3 are injured eye witnesses, P.W.1 being the elder brother, P.W. 2 being the mother and P.W.3 being the father of the deceased Deepak Kumar. P.W. 3 is the informant whose fardbeyan was recorded soon after the occurrence at 4.00 A.M. in M.J.K. Hospital at Bettiah, where they were taken by the patrolling party which had arrived at the place of occurrence after receiving the information. Presence of the aforesaid RWs. 1, 2 and 3 at the place of occurrence and having witnessed the occurrence cannot be ruled out. They are close and direct relations of the deceased children and therefore implicating a false person,,., leaving out the actual culprit is highly improbable and unacceptable. Their evidences were placed in court in extenso and we do not find any flaw in their evidence to disbelieve them. They have supported the prosecution case in all material particulars. P.W. 3 has further brought on record letters written by appellant, exhibited as Ext.-13 and 13/1 in which the appellant has claimed himself to have become a member of ULFA and has threatened the informant with dire consequences for troubling his father. P.W. 7, a doctor of M.J.K. Hospital, Bettiah found incised injuries on their person and has proved his injury report. In his opinion, injuries on the person of these three witnesses were caused by a sharp cutting weapon and were grievous in nature. Thereafter, the three witnesses were referred to and treated at P.M.C.H., Patna, which is proved by the evidence of P.W. 17 and P.W. 18. 24. Post-mortem examination on the dead bodies of the three deceased children were held in M.J.K. Hospital, Bettiah by P.W. 5 and P.W. 6, who have proved their reports. According to them, the deceased had received multiple incised wounds by sharp edged weapon. The dab (the weapon of assault) was seized from near the outer door of the house on the ground floor in presence of P.W. 4 and P.W. 5, who have proved their signature on the seizure list. 25. .Thus, on the analysis of material evidence on record, we find that the prosecution has been able to establish its case beyond all reasonable doubt and there is no infirmity in the order of conviction. 25. .Thus, on the analysis of material evidence on record, we find that the prosecution has been able to establish its case beyond all reasonable doubt and there is no infirmity in the order of conviction. Accordingly, the order of conviction of the appellant by the trial court is upheld. 26. Now we enter the most difficult area in the criminal justice system i.e. penology. The law is settled that the death sentence deserves to be awarded in case of rare of the rarest cases but its application is not very simple. Mr. Sinha contends that the case in hand does not fall in the category of rarest of rare cases and, as such, extreme penalty of death is not called for. He points out that number of persons killed is not relevant to determine the sentence. Reliance has been placed on a decision of the Supreme Court in the case of A. Devendran and Ors. ors. State of Tamil Nadu [ AIR 1998 SC 2821 ] and our attention has been drawn to the following passage from paragraph 24 of the judgment which reads as follows: "24. xxx The learned Sessions Judge awarded death sentence to the accused Devendran on the ground that as soon as the driver Nagarajan entered into the house the said Devendran shot the gun which hit Nagarajan and he died. This itself cannot be held to be sufficient to hold that it is an act of a depraved mind. The number of persons who died in the incident is not the determinative factor for " deciding whether the extreme penalty of death could be awarded or not. On the evidence of RW. 2 as well as the evidence of RW. 5 it is difficult to hold that the deaths of the persons were either diabolical, ghastly or gruesome." (Underlining ours) 27. It has also been pointed out that there is nothing on record to suggest that the appellant shall be a menace to the society and incapable of rehabilitation or reformation after he comes out of incarceration and shall be a continuing threat to the society. It has also been pointed out that there is nothing on record to suggest that the appellant shall be a menace to the society and incapable of rehabilitation or reformation after he comes out of incarceration and shall be a continuing threat to the society. It is highlighted that the crime committed is heinous and brutal and a large number of persons have been killed but this itself shall not justify the extreme penalty of death, unless or until there is material to show that after the appellant comes out of incarceration shall be a menace and continuing threat to the society, incapable of rehabilitation or reformation. To buttress the submission learned Counsel has place reliance on a decision of the Supreme Court in the case of Bachhitar Singh and Another vs. State of Punjab [ AIR 2002 SC 3473 ] and our pointed attention has been drawn to the following passages from paragraphs 22 and 23 which read as follows: "22. This takes us to consider the death penalty awarded by the trial Court and confirmed by the High Court. It is contended by the learned counsel for the appellants that the case does not fall within the category of rarest of rare which would invite capital punishment. On a perusal of the evidence and materials on record, we find that apart from the solitary incident in question, there is no evidence on record either oral or documentary, which would suggest about the misconduct of the appellants in the past. There is also no evidence on record to suggest that the appellants would be a menace and threat to the harmonious and peaceful co-existence of the society. In a case, what appears to be similar with the present one, Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra (2002) 2 SCC 35 : the accused had done to death his own brother, brothers wife and children out of land dispute. This court held that no doubt the crime was heinous and brutal but at the same time it will be difficult to hold that it is rarest of rare case. This court held that no doubt the crime was heinous and brutal but at the same time it will be difficult to hold that it is rarest of rare case. The court was also of the view that it would be difficult to hold that the appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue the criminal acts of violence as would constitute a continued threat to the society. The same principle has been followed by this Court in Ram Anup Singh & Ors. vs. State of Bihar JT 2002(5) 621. In the case at hand also, we are of the view that having regard to the absence of evidence to the contrary that the appellants are a menace to the society threatening the peaceful and harmonious co-existence of the society and they are likely to be a continuous threat to the society if once they come out of incarceration, no doubt the crime was committed in a heinous and brutal manner but viewed from the facts and circumstances, as noticed above, it would be difficult to hold that the case falls within the category of rarest of rare. At the same time, there is no reason to believe that they cannot be reformed and rehabilitated. Viewed from the aforesaid perspective, we are of the opinion that the appellants must be given a chance to repent that what they have done is neither approved by the law or by the society and be reformed or rehabilitated and become good and law abiding citizen." "23. In the facts and circumstances of the case, as stated above, we would think that sentencing them to rigorous imprisonment for life would meet the ends of justice." 28. Another decision on which learned Counsel has placed reliance is the judgment of the Supreme Court in the case of Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra [ (2002)2 SCC 35 ] and our attention has been drawn to the following passage from paragraph 23 of the said judgment which reads as follows : "23. From the record, it is revealed that the accused Prakash Patil did not have any criminal tendency. He was working as Water Analyser (Sr. Scientific Assistant). From the record, it is revealed that the accused Prakash Patil did not have any criminal tendency. He was working as Water Analyser (Sr. Scientific Assistant). The facts and circumstances of the case reveal that he killed his brother, brothers wife and children because of frustration, as he was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also difficult to hold that appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society." 29. Our attention has also been drawn to a Division Bench Judgment of this Court in the case of State of Bihar vs. Sanjeet Rai [2006(4) P.L.J.R. 479] in which in paragraph 59 it has been held as follows : "59. True it is that the crime has been committed in a heinous manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incarceration. There is no reason to believe that they cannot be reformed and they are likely to continue criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare cases, calling for extreme penalty of death." 30. We had the occasion to consider this question in Death Reference No. 2 of 2004 (The State of Bihar vs. Umesh Choudhary & Ors.) and on consideration of earlier authorities we held as follows: "Having given my most anxious consideration to the rival submissions, I am of the opinion that the extreme penalty of death needs to be inflicted in gravest cases of extreme culpability and before opting for the death penalty, the manner of the crime is required to be taken into consideration and not the circumstances of the offender. In a case in which the collective conscience of the community is shocked that it will expect the holders of the judicial power to inflict death penalty. In a case in which the collective conscience of the community is shocked that it will expect the holders of the judicial power to inflict death penalty. To hang or not to hang, a balance of aggravating and mitigating circumstances has to be drawn up with due regard to the mitigating circumstances and a just balance has to be struck between the two before the option is exercised. So long the death sentence is provided under the statute, the holders of the judicial powers, de hors their personal opinion, has to inflict the death sentence, if the circumstances of the case so justify." 31. The authorities on the question leads us to conclude that death sentence can be inflicted in rarest of the rare case and the number of persons killed is not decisive. Crime being brutal and heinous itself do not turn the scale towards death sentence. If these factors are present the Court has to see as to whether the accused is a menace to the society and continue to be so, threatening the peaceful and harmonious co-existence of society. The Court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance-sheet is to be prepared while considering the imposition of extreme penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, the holders of judicial power will not stammer, de hors their personal opinion and inflict death penalty. 32. Bearing in mind the principle aforesaid, when we proceed to examine the facts of the case, we are of the opinion that the case falls within the category of rarest of the rare cases and as such the death penalty is called for. Deepak Kumar, aged about 16 years, Kiran Kumari and Puja Kumari, aged about 8 years, have been killed in the occurrence. They had furnished no cause to the appellant to murder them. Besides the appellant has caused injury to RW. 1 Prakash Kumar Thakur, RW. 2 Geeta Devi and RW. 3 Pawan Kumar Thakur. Deepak Kumar and Kiran Kumari had met the death only because they happen to be the children of informant Pawan Kumar Thakur and Puja Kumari, his niece. They had furnished no cause to the appellant to murder them. Besides the appellant has caused injury to RW. 1 Prakash Kumar Thakur, RW. 2 Geeta Devi and RW. 3 Pawan Kumar Thakur. Deepak Kumar and Kiran Kumari had met the death only because they happen to be the children of informant Pawan Kumar Thakur and Puja Kumari, his niece. Thirteen incised wounds have been found on the person of the deceased Deepak Kumar, neck of Kiran Kumari was cut and Puja Kumari sustained four injuries. The number, size and the places, where the injuries have been found on the person of the deceased, go to suggest that the crime has been committed with extreme brutality. Thus the appellant had caused the death of three innocent persons in a brutal manner and the only fault of the informant was that he demanded his dues. 33. There is ample material on the record to show that the appellant shall be a menace to the society and incapable of rehabilitation or reformation after he comes out of incarceration and shall be a continuing threat to the society. There are letters written by the appellant to the father of the informant and the grandfather of the deceased persons (Ext. 13) threatening to eliminate all his family members. In the said letter he wrote to him that he had joined the Ulfa extremist organisation and the priority is to commit 1500 murders. In the said letter the appellant asked the grandfather to help him and his family members, failing which bombs may be thrown in the house which shall destroy the entire house and he will die. 34. There is another threatening letter written by this appellant to Pawan Thakur in which he reiterated about his intention to kill 1500 persons to make record. In the said letter informant was directed to act in accordance with his direction, failing which he was threatened to be killed. The aforesaid letters show the mental state of the appellant, not only he is threatening the informant and the victims family to act on his dictates but also threatened to destroy their house and kill them. Further to kill 1500 persons and make a record go to show that he shall be a continuous threat to the society after he comes out from jail. Further to kill 1500 persons and make a record go to show that he shall be a continuous threat to the society after he comes out from jail. Causing the death of innocent children for no fault on their part only because their father and uncle demanded from the appellant the dues and further the threat given to them, I am of the opinion that same shocks the collective conscience of the community and it expects the holders of the judicial power to inflict the death penalty. So long the death sentence is provided under the statute, the holders of the judicial powers, de hors their personal opinion, has to inflict it and circumstances of the present case justify this. From, the facts narrated above, it is evident that it is one of rare of the rarest cases justifying death sentence. 35. Accordingly we accept the reference and confirm the death sentence. Resultantly the appeal fails and is dismissed.