A. M. KAPADIA, J. ( 1 ) INSTANT Criminal Confirmation Case, pursuant to submission of the proceedings made under Section 366 (1) of the Code of criminal Procedure ( the Code for short), along with companion appeal filed under section 374 (2) of the Code by the appellant ( the accused for short), arise out of the judgment and order dated 31. 12. 2005 rendered in Sessions Case No. 34 of 2004 by the learned Presiding Officer, Fast Track court No. 9, Bharuch, by which the accused is convicted for commission of the offence of murder of his five daughters, who were of tender age, by throwing them into the waters of the Narmada River from the sardar Bridge, under Section 302 of the indian Penal Code (IPC for short) and sentenced to death with a direction that the accused should be hanged by the neck till his death, subject to confirmation by this court. ( 2 ) AS the Criminal Confirmation Case and the companion appeal arise out of same judgment and order, this Court proposes to hear the reference for confirmation of sentence to death and the appeal preferred by the accused together and to deal with the merits of the case against the accused in light of all the material questions of law as well as facts and to adjudicate upon the guilt of the accused and the appropriateness of the sentence to death, by this common judgment. ( 3 ) THE facts emerging from the record of the case, more particularly as disclosed from the janva Jog entry and FIR and unfolded during the trial, are as under: 3. 1. Prosecution Witness No. 4, shantaben Jethabhai, on 5. 2. 2004 at about 4. 10 p. m. had returned to her hut after dropping both her granddaughters at neelkanth temple. At that time, when she had looked towards the Sardar Bridge, she saw a person throwing something into the waters of Narmada River from the middle of the bridge which appeared to her to be around five children. She, therefore, started shouting but as there was no one nearby, nobody had come in response to her shouting. She thereafter went over the bridge and saw the person running towards jadeshwar Chowky. He was wearing white : clothes. She, therefore, started shouting but as there was no one nearby, nobody had come in response to her shouting. She thereafter went over the bridge and saw the person running towards jadeshwar Chowky. He was wearing white : clothes. At that time she had asked a man as to what time it was and she was told that it was 04. 10 p. m. She looked into the river from the bridge but could not see any child in the river. The incident had taken place at a considerable distance from her hut. She had searched for the said person but he could not be found and hence she went to jadeshwar Police Out Post and met P. W. 10, maheshbhai Kanjibhai and P. W. 11, thakorbhai Ranchhodbhai, both police constables, who were on duty at the relevant time, and informed them about the said incident. They immediately took P. W. 4, shantaben in a rickshaw and proceeded towards the bridge where the alleged incident occurred as per the narration of shantaben but could not see anything notable and, therefore, they advised shantaben to go to Bharuch Rural Police station and make a declaration. Shantaben thereafter proceeded to Bharuch Rural police Station in an auto-rickshaw and made declaration before P. W. 18, Vrajlal joitaram Patel, Ex. 58, about the said incident. The said declaration made by p. W. 4, Shantaben, is reduced in writing which is registered as Janva Jog Entry No. 5/ 04 which is at Ex. 57. Pursuant to the registration of the Janva Jog entry, investigation was put into motion by p. W. 18, Vrajlal Joitaram Patel. and he went to the place of the alleged incident as declared by Shantaben and prepared panchnama of the scene of offence. In connection with this case, statements of p. W. 3, Roshanben, wife of the accused and other witnesses were recorded. Thereafter on 7. 2. 2004 on finding the dead body of suhana, one of the daughters of the accused, on the bank of Narmada River, he held inquest on the dead body and also prepared panchnama in presence of panchas and sent the dead body of Suhana to Civil hospital, Bharuch for post-mortem examination. Thereafter on 7. 2. 2004 on finding the dead body of suhana, one of the daughters of the accused, on the bank of Narmada River, he held inquest on the dead body and also prepared panchnama in presence of panchas and sent the dead body of Suhana to Civil hospital, Bharuch for post-mortem examination. Thereafter on finding the dead body of Yasmin, another daughter of the accused, on the bank of Narmada River, he held inquest on the dead body and also drew up a panchnama in presence of panchas and sent the dead body of Yasmin for post-mortem examination to Civil hospital, Bharuch. 3. 2. On 5. 2. 2004, in the evening at about 4. 30, P. W. 3, Roshanben Salim ghulamhussain Shaikh, who lodged the complaint on 7. 2. 2004, had a telephone call from her husband, at the place of her neighbour Ghulamali and hence she had gone to talk to him on phone. Her husband informed her on telephone that all the five girls have been seated in a train and she should take them down from the train. As for him, he would be severed under the train. Saying so. he put the telephone down and did not say anything further. Thereafter she had told her father about the talk she had with her husband on telephone and she, along with her father, had gone to Bharuch railway Station and searched for her children but they could not be found and hence they had returned to Varedia. Her neighbours as well as people from the village had also gone in search of her husband and five daughters, but they could not be found. 3. 3. On the next day i. e. , 6. 2. 2004, she had learnt from the village people that on 5. 2. 2004 in the evening some person had thrown five children into the waters of narmada River from Sardar Bridge. As soon as she heard the said news, she along with her brother, Siddiquebhai and neighbours, Hamidaben and Fatmaben, went to Jadeshwar Police Chowky. There she came to know that one Shantaben Patel who lived below the bridge, had, on 5. 2. 2004 at about 4. 10 p. m. , seen a man wearing white clothes throwing five children in the river. After coming to know about the happening of such an incident, she had returned home afternoon. 3. 4. There she came to know that one Shantaben Patel who lived below the bridge, had, on 5. 2. 2004 at about 4. 10 p. m. , seen a man wearing white clothes throwing five children in the river. After coming to know about the happening of such an incident, she had returned home afternoon. 3. 4. On the same day, at 2 o clock in the afternoon, she had received a phone call from her brother Siddique who informed her that the dead body of her youngest daughter, Suhana, had been found on the bank of Narmada River, hence, she along with her parents should come to Jadeshwar police Chowky. Therefore, she, accompanied by her neighbours - Ghulam ali Munshi, Hamidaben and Fatmaben, had gone to Jadeshwar Police Chowky. From there they had gone with Siddiquebhai to the place where the dead body of Suhana was lying, which was at a distance of about one kilometre from the Golden Bridge towards the bank of Narmada River and found her dead body, which she had identified as that of her daughter Suhana. Till that time, the dead bodies of her other four daughters were not found and nothing was known about the whereabouts of her husband also. 3. 5. In the backdrop of the aforesaid allegations, P. W. 3, Roshanben, wife of the accused, filed a complaint on 7. 2. 2004, i. e. , on the third day of the incident, at jadeshwar Police Station, wherein, she has, inter alia, stated that she was married to the accused Salim alias Pravin Ghulam Hussain shaikh in the year 1993. Out of the said wedlock they had five daughters and one son. The eldest daughter was Shagufta aged 9 years. The younger daughters were rukshana aged 8 years, Yasmin aged 5 years. Samreen aged 4 years and Suhana aged 3 years. Their youngest child was a son named Mahamad Sabir aged 10 months. 3. 6. On 5. 2. 2004 at about 12:30 in the afternoon, her husband had told her that he was going to the Dargah with their five daughters and had gone out of the house and she had stayed at home to attend to the household work. 3. 7. 3. 6. On 5. 2. 2004 at about 12:30 in the afternoon, her husband had told her that he was going to the Dargah with their five daughters and had gone out of the house and she had stayed at home to attend to the household work. 3. 7. It was further alleged in the complaint that as her husband along with his daughters did not return till late at night, she was worried and went in search of them at the Dargah, with her father, but they could not find them there. The people at the dargah told them that her husband had gone towards the highway along with the girls. Therefore, she, along with her father, went in search of her husband and children but could not find them and hence they had returned home. 3. 8. It was also alleged in the complaint that in the evening at 4. 30, there was a phone call from her husband at her neighbour Ghulam Ali s place and hence she had gone there to talk to him on the phone. At that time her husband had told her that the girls had been seated in a train and she should take them down and as for him, he would be severed under the train. Saying so, he put down the phone and did not say anything else further. Thereafter, she had told her father about the talk she had with her husband on telephone and she along with her father had gone to Bharuch railway Station and searched for the girls there, but they could not find them and hence they had returned to Varedia. Her neighbours as well as people from the village had also gone in search of her husband and daughters, but they could not be found. 3. 9. It was further alleged by the complainant in her complaint that on 6. 2. 2004, in the morning, she had learnt from the village people that on 5. 2. 2004, in the evening, some person had thrown five children into the waters of Narmada River from Sardar Bridge As soon as she heard the aforesaid news, she, along with her brother, Siddiquebhai and neighbours, hamidaben and Fatmaben, went to jadeshwar Police Chowky. There she came to know that one Shantaben Patel who lived below the bridge, had, on 5. 2. 2004 at 4. There she came to know that one Shantaben Patel who lived below the bridge, had, on 5. 2. 2004 at 4. 10 in the evening, seen a man wearing white clothes throwing five children in the river. After coming to know about the happening of such an incident, she had returned home afternoon. 3. 10. In the complaint, the complainant had further alleged that on that day when she was at home, at 2 o clock in the afternoon, she had received a phone call from her brother Siddique who informed her that the dead body of her youngest daughter Suhana had been found on the bank of Narmada River and hence she, along with her parents, should come to jadeshwar Police Chowky. Therefore, she, accompanied by her neighbours Ghulam ali Munshi, Hamidaben and Fatmaben, had gone to Jadeshwar Police Chowky. From there they had gone with Siddiquebhai to the place where the dead body of Suhana was lying, which was at a distance of about one kilometre from the Sardar Golden bridge towards the bank of Narmada River and found that the dead body was that of her youngest daughter Suhana, which she had identified. Till that time, the dead bodies of her other four daughters were not found and nothing was known about the whereabouts of her husband also. 3. 11. It was further alleged in the complaint by the complainant that her husband was indebted to the extent of rs. 6,000/- in the village and he owed other debts at Surat also and hence he was under tension. For that reason, her husband had thrown her five daughters into the waters of narmada River from Sardar Bridge at jadeshwar and thereby caused their death and had absconded. 3. 12. The complaint, as narrated by p. W. 3, Roshanben, against the accused, for commission of the offence punishable under section 302 IPC, was reduced in writing and was registered vide CR No. I-18/04 at bharuch Rural Police Station, which is on record at Ex. 18. P. W. 3, Roshanben has put her signature beneath her complaint. 3. 13. Thereafter P. W. 18, Vrajlal Patel, recorded statements of P. W. 10, Maheshbhai and P. W. 11, Thakorbhai, two police constables and other witnesses. He arrested the accused and panchnama of the person of the accused was prepared. 18. P. W. 3, Roshanben has put her signature beneath her complaint. 3. 13. Thereafter P. W. 18, Vrajlal Patel, recorded statements of P. W. 10, Maheshbhai and P. W. 11, Thakorbhai, two police constables and other witnesses. He arrested the accused and panchnama of the person of the accused was prepared. As the accused had shown his willingness to show the scene of the offence in the presence of panchas. a preliminary panchnama was drawn and they went to Sardar Bridge where the accused pointed out to them the spot wherefrom he threw the girls into the waters of Narmada River and accordingly the second part of the panchnama was also prepared in presence of panchas. He has also recorded further statements of P. W. 3, roshanben - complainant and other witnesses. He thereafter sent a yadi to the executive Magistrate, Bharuch for arranging a test identification parade of the accused. 3. 14. The accused was presented before the Dy. Executive Magistrate who carried out the T. I. parade and in the T. I. Parade p. W. 4, Shantaben, has identified the accused as the person who had thrown five girls in the waters of Narmada River from sardar Bridge. Thereafter he has also got prepared the map of the scene of offence. On receipt of the autopsy report of Suhana and Yasmin and as sufficient incriminating evidence was found against the accused, he filed charge-sheet against the accused for commission of offence punishable under section 302 IPC. in the Court of learned jmfc, Bharuch. 3. 15. As the offence punishable under section 302 is exclusively triable by a Court of Sessions, the learned JMFC, Bharuch referred the case to the Sessions Court, bharuch where it was numbered as Sessions case No. 34 of 2004. 3. 16. The learned Presiding Officer to whom the case was made over for trial framed charge against the accused that of 5. 2. 2004 at 4. 10 p. m. he, with the intention of causing their death, had thrown his five minor and tender-aged daughters named shagufta aged 9 years, Rukshana aged about 8 years, Yasmin aged 5 years. Samreen aged 4 years and Suhana aged years into the waters of Narmada River from Sardar Bridge constructed over narmada River and thereby committed the offence of culpable homicide amounting to murder and thus committed the offence punishable under Section 302 IPC. Samreen aged 4 years and Suhana aged years into the waters of Narmada River from Sardar Bridge constructed over narmada River and thereby committed the offence of culpable homicide amounting to murder and thus committed the offence punishable under Section 302 IPC. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon he was put to trial and tried by the learned Presiding Officer, Fast Track court No. 9, Bharuch in Sessions Case no. 34 of 2004. PW 3. 17. To prove the culpability of the accused, the prosecution has examined as many as 18 witnesses and relied upon their oral testimonies, the details of which have been given in paragraph 3 of the impugned judgment and order: Name status Ex. Page No No 1. Salim alias Imtiyas Ibrahim Pathan Panch witness 14 24-25 2. Sureshbhai Bhikhabhai Parmar Panch witness 16 28-29 3. Roshanben Salim Ghulamhussain Shaikh Complain-ant 17 30-37 4. Shantaben Jethabhai Eye witness 19 40-45 5. Faridaben Yunus Suleman Raja Witness 20 46-47 6. Dhanjibhai Kalidas Witness 21 48-49 7. Dhansukhbhai Ratansinh Panch witness 23 52-53 No 8. Ayubbhai Ahmedbhai Patel Panch witness of TI Parade 9. Siddiquebhai Umarji Mahmad Patel Panch witness of inquest 28 65-66 10. Maheshbhai Kanjibhai panchnama Police witness 11. Thakorbhai Ranchhodbhai Police witness 31 73-76 12. Mahendrabhai Babubhai Police witness 32 77-78 13. Naginbhai Dahyabhai 40 Police witness 33 79-81 14. Zinabhai Lakkadiyabhai Police witness 34 82-84 15. Mohanbhai Umedbhai Vasava Circle Officer 35 85-86 16. Bharatbhai Kantibhai Patel 45 Deputy Executive Magistrate who conducted TI Parade 17. Dr. Jyotiben Ashokkumar Gupta Medical Officer 44 95-96 18. Vrajlal Joitaram Patel Investigating Officer 58 129-133 26 56-60 38 89-94 30 69-72 Sr. No. Particulars Ex. No. 1. Panchnama of the scene of offence 15 26-27 2 Original complaint 18 38-39 3. Inquest Panchnama of the dead body of Suhana 22 50-51 4. Panchnama of the place from where the accused has thrown the girls in the river 5. Panchnama of TI Parade 27 61-64 6. Inquest panchnama of dead body of Yasmin 29 67-68 7. Yadi sent for preparing sketch of scene of offence 36 87 8. Sketch of scene of offence 37 88 9. Police yadi 45 97 10. P. M. Report 46 98-104 11. Yadi sent for conducting post-mortem examination on the dead body of Yasminben ???????????????????????? Inquest panchnama of dead body of Yasmin 29 67-68 7. Yadi sent for preparing sketch of scene of offence 36 87 8. Sketch of scene of offence 37 88 9. Police yadi 45 97 10. P. M. Report 46 98-104 11. Yadi sent for conducting post-mortem examination on the dead body of Yasminben ???????????????????????? ? 47 105 12. PM report of Yasminben 48 106-112 13. Declaration made by Shantaben 57 128 14. Panchnama of physical condition of the accused 59 134-135 15. Closing pursis 60 136 17. Judgment reported in 2000 GLR 364 ? 71 177-192 Page No. 3. 18. To prove the charge levelled against the accused, the prosecution has also produced as many as 17 documents and relied upon the contents of the same, the details of which are enumerated in paragraph 4 of the impugned judgment and order, which are as under: 24 54-55 3. 19. After recording of the evidence of the prosecution witnesses was over, the learned Trial Judge explained to the accused the circumstances appearing against him in the evidence of 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 in toto by saying that he has been falsely implicated in the case and he is innocent. However, he did not lead any evidence nor did he examine any witness in support of his defence. 3. 20. On appreciation, evaluation, analysis and scrutiny of the evidence adduced and produced by the prosecution, the learned Trial Judge has held that the evidence of the eye-witness, P. W. 4, shantaben, who had seen the accused throwing his five daughters into the waters of Narmada River from Sardar Bridge, is trustworthy and reliable. The learned Trial judge has also held that the evidence of p. W. 3, Roshanben - complainant and evidence of P. W. 5, Faridaben, who is the sister of the complainant, is also consistent with regard to the fact that the accused had taken his five daughters with him on the fateful day and thereafter they were not traceable. The learned Trial Judge, therefore, held that the five daughters of the accused were with him when the accused had last left his house saying that he along with his five daughters were going to dargah and thereafter his five daughters have never returned home. The learned Trial Judge, therefore, held that the five daughters of the accused were with him when the accused had last left his house saying that he along with his five daughters were going to dargah and thereafter his five daughters have never returned home. Therefore, the evidence of P. W. 4, Shantaben gets corroboration from the evidence of P. W. 3. Roshanben - complainant and P. W. 5, faridaben - sister of the complainant. Besides this, dead bodies of two daughters of the accused, Suhana and Yasmin, were found on the bank of Narmada River and, therefore, the prosecution has established the complicity of the accused beyond reasonable doubt. On the basis of the said findings, the learned Trial Judge has convicted the accused for commission of the offence punishable under Section 302 ipc. 3. 21. The learned Trial Judge thereafter heard the accused on the question of sentence. According to him, the accused has committed brutal, diabolic, ghastly and heinous crime of murdering his own five innocent children, who were of tender-age, in a shocking manner and, therefore, he deserves the extreme penalty of death sentence. 3. 22. For justifying the imposition of death penalty on the accused, the learned trial Judge has sought support from the decisions of the Supreme Court in Machhi singh v. State of Punjab, AIR 1983 SC 957 as well as Amrutlal Someshwar Joshi v. State of Maharashtra, 1995 Cri. L. J. 400. 3. 23. In view of the above conclusion, the learned Trial Judge has imposed death sentence on the accused for murdering his own five daughters, vide judgment and order dated 31. 12. 2005, rendered in sessions Case No. 34 of 2004, which has given rise to the above numbered two proceedings. ( 4 ) IT may be stated that the accused being poor, has filed appeal through jail and prayed to make free legal aid available to him at the cost of the Government by appointing an advocate practising in this court. Accordingly, Ms. Banna Dutta, learned advocate practising in this Court, is appointed to render free legal assistance to the accused. The appeal filed by the accused is numbered as Criminal Appeal no. 1. 13 of 2006 which has been admitted by this Court with a direction that it be heard along with Criminal Confirmation case No. 1 of 2006. ( 5 ) MS. The appeal filed by the accused is numbered as Criminal Appeal no. 1. 13 of 2006 which has been admitted by this Court with a direction that it be heard along with Criminal Confirmation case No. 1 of 2006. ( 5 ) MS. Banna Dutta, learned advocate appointed by the Legal Aid Committee for the accused, has challenged the judgment and order passed by the learned Trial Judge contending that there are discrepancies on material aspects in the evidence of the prosecution witnesses. According to her, so far as the evidence of P. W. 4, Shantaben jethabhai, who allegedly saw the incident, is concerned, she was standing under the bridge and, therefore, it was impossible for her to see the face of the accused as, according to her, the accused thereafter ran away towards Jadeshwar Chowky. In spite of this fact, the learned Trial Judge has wrongly considered her as an eye-witness and placed heavy reliance on her evidence which he could not have done. It is also emphatically submitted by her that evidence of TI Parade is a mockery as, prior to TI parade, P. W. 4, Shantaben, had an opportunity to see the accused while he was being brought to the office of the Executive magistrate. Ms. Dutta has also pointed out that the dead body of only two daughters are found from the bank of Narmada River whereas the whereabouts of the other three daughters are not brought on record as neither their dead bodies are found nor they are traced out till now. So far as the prosecution case that the accused had taken his five daughters with him on 5. 2. 2004 is concerned, it has been pointed out by her that it is true that in their evidence P. W. 3, roshanben and P. W. 5, Faridaben, have stated the said aspect in their examination-in-chief. However, they have resiled from the said version during the cross-examination and have not supported the prosecution case in this regard. Therefore, the prosecution has failed to establish that the accused had taken his five daughters with him on 5. 2. 2004 and hence the prosecution case that the five daughters of the accused were last seen with him is not established. Therefore, the prosecution has failed to establish that the accused had taken his five daughters with him on 5. 2. 2004 and hence the prosecution case that the five daughters of the accused were last seen with him is not established. Therefore, according to her, a serious doubt is raised in the prosecution case and hence the accused is entitled to the benefit of doubt and the conviction of the accused for commission of offence punishable under Section 302 IPC for murdering his own five innocent girls of tender-age is not well founded and the same deserves to be quashed and set aside and the accused deserves to be acquitted of the offence with which he was charged by allowing the appeal. 5. 1. In the alternative, she has argued that the learned Trial Judge was not justified in relying upon the two reported decisions of the Supreme Court referred to in the operative part of the judgment rendered by the Trial Judge for the purpose of imposition of death sentence on the accused inasmuch as facts of those cases were quite different from those obtaining in instant case. After placing reliance on the decision of the Supreme Court in the case of Panchhi and others v. State of UP (1998) 7 SCC 177 , she has contended that brutality of the manner in which a murder is perpetrated may be a ground, but not the sole criterion for judging whether the case is one of the rarest of rare cases as indicated in Bachan Singh v. State of punjab, (1980) 2 SCC 684 and as the learned Trial Judge has taken into consideration only brutality of the manner in which the murder of his five daughters was committed by the accused, but, has failed to take into consideration mitigating features surrounding the murder of the five daughters, the death sentence imposed on the accused deserves to be commuted to imprisonment for life. Ms. Dutta has also pointed out to us that the evidence of p. W. 3, Roshanben, the complainant, if accepted, would show that unrest was prevailing in the mind of the accused as the accused was indebted to the extent of rs. 6,000/- in the village and he owed other debts at Surat also and, therefore, he was under tremendous tension. Dutta has also pointed out to us that the evidence of p. W. 3, Roshanben, the complainant, if accepted, would show that unrest was prevailing in the mind of the accused as the accused was indebted to the extent of rs. 6,000/- in the village and he owed other debts at Surat also and, therefore, he was under tremendous tension. It is further pointed out by her that as per the evidence of P. W. 3, Roshanben, the accused had telephoned to her and told her that he had seated his daughters in the train and she should take them down and as for him, he would be severed under the train. This fact itself shows that unrest was prevailing in the mind of the accused and at one point of time he must have thought of putting an end to his life after throwing his five daughters into the waters of Narmada River from Sardar Bridge. In these circumstances, according to her, imposition of death sentence on the accused is not warranted in instant case. She has, therefore, prayed that on the facts and in the circumstances of the case, death sentence imposed on the accused may not be confirmed by this court and the death sentence may be commuted to imprisonment for life and accordingly Criminal Confirmation Case no. 1 of 2006 may be dismissed and criminal Appeal No. 113 of 2006 filed by the accused may be partly allowed qua sentence. ( 6 ) MR. A. J. Desai, learned APP for the state of Gujarat, has vehemently and forcefully contended that there is evidence of P. W. 4, Shantaben, an eye-witness to the incident, which, unerringly establishes the complicity of the accused in the commission of the offence alleged against him. The accused was unknown to her and there was no reason for her to falsely implicate the accused in a murder case and, therefore, her evidence is reliable and trustworthy. Shantaben has immediately informed about the happening of the said incident to P. W. 10, Maheshbhai and p. W. 11 Thakorbhai, two police constables who were working at the Jadeshwar Police out Post at the relevant time. Shantaben has immediately informed about the happening of the said incident to P. W. 10, Maheshbhai and p. W. 11 Thakorbhai, two police constables who were working at the Jadeshwar Police out Post at the relevant time. They took shantaben in an auto rickshaw to the place of incident and since nothing notable could be found there, they advised Shantaben to go to Bharuch Rural Police Station and thereafter she went to Bharuch Rural Police station and made declaration about the said incident and on the basis of the said declaration, Janva Jog entry No. 5/04, which is at Ex. 57, has been registered at Bharuch rural Police Station. She has identified the accused in the TI parade. There is evidence of P. W. 3, Roshanben and P. W. 5, faridaberi, to the effect that the accused had taken his five daughters with him saying that he was taking them to Dargah and after that dead bodies of two of his daughters were found on the bank of Narmada River. All the five daughters were with the accused when they left the house. According to him, the evidence of the eye-witness Shantaben and the evidence of P. W. 3, Roshanben, therefore, corroborate each other. It is also emphasized by him that the accused telephoned to his wife and gave a wrong message that his five daughters were seated in a train and she should go to Bharuch railway Station and fetch them and as for him, he would be severed under the train, meaning thereby, he informed that the five girls were with him and he had seated them in a train and she should go to the railway station and fetch them and he was going to commit suicide. This shows the "mens rea" of the accused. Therefore, according to him, the accused has killed his five innocent daughters by throwing them in the waters of Narmada River from the Sardar Bridge and hence the prosecution has established the guilt of the accused by cogent and convincing evidence which sets all the doubts at rest. This shows the "mens rea" of the accused. Therefore, according to him, the accused has killed his five innocent daughters by throwing them in the waters of Narmada River from the Sardar Bridge and hence the prosecution has established the guilt of the accused by cogent and convincing evidence which sets all the doubts at rest. Therefore, the prosecution has successfully proved the complicity of the accused in the commission of murder of his five daughters and hence the impugned judgment and order convicting the accused for commission of offence punishable under section 302 IPC does not call for any interference of this Court in exercise of powers under Section 374 (2) of the Code. 6. 1. So far as the imposition of death sentence on the accused is concerned, according to Mr. Desai, learned APP, considering the way in which the ghastly and diabolic murder of five innocent girls has been committed by the accused, no sympathy can be shown to him and this can be called a "rarest of the rare cases". 6. 2. Dealing with the alternative plea raised by Ms. Dutta, learned advocate of the accused, that death sentence may be commuted to imprisonment for life as brutality of the manner in which the murder of five daughters was committed by the accused is not the sole criterion for judging whether the case falls within the category of "rarest of rare cases", he has argued that the accused has committed ghastly and gruesome murder of his five innocent, hapless and helpless daughters of tender age, who had full faith in him being their father and natural guardian, by throwing them into the waters of Narmada River from Sardar Bridge and that too without any rhyme or reason and, therefore, death sentence imposed on the accused, on the basis of the principles laid down by the supreme Court in the decisions which are discussed by the learned Trial Judge in his judgment, should be upheld by this Court. According to him, the mitigating and/or aggravating features surrounding murder of the five girls have been taken into consideration by the learned Trial Judge and having regard to the manner in which the five girls were murdered, death sentence imposed on the accused may be confirmed by this Court. 6. 3. According to him, the mitigating and/or aggravating features surrounding murder of the five girls have been taken into consideration by the learned Trial Judge and having regard to the manner in which the five girls were murdered, death sentence imposed on the accused may be confirmed by this Court. 6. 3. In the alternative, he has further argued that if this Court comes to the conclusion that this is not a "rarest of rare case" and, therefore, death sentence imposed on the accused deserves to be commuted to imprisonment for life, the directions given by the Supreme Court in the case of Subash Chander v. Krishan Lal and others, (2001) 4 SCC 458 may be followed and a direction may be given that the accused shall not be entitled to any commutation or premature release under the code, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of granting of commutation and remissions, and shall spend his entire life in the prison, in view of the demoniacal manner in which the murder of five innocent daughters was committed by the accused. 6. 4. Lastly it is submitted by him that no case is made out by the accused for commutation of death sentence to imprisonment for life and, therefore, the appeal may be dismissed and the Criminal confirmation Case may be allowed. ( 7 ) THIS Court has considered the submissions advanced by Mr. A. J. Desai, learned APP for the State of Gujarat and ms. Banna Dutta, learned advocate for the accused, at length and in great detail. This court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and reread by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with confirmation cases, this court has examined the entire evidence on record for itself independently of the sessions Court and examined the arguments advanced on behalf of the accused and infirmities pressed, scrupulously, with view to find out as to whether it was the accused and none-else who has committed the murder of his five daughters. ( 8 ) AS per the prosecution case, on the fateful day, the accused had taken his five daughters with him saying that he was taking them to the Dargah and thereafter he took them to Sardar Bridge over Narmada river and threw them, one by one, into the waters of Narmada River. As per further case of prosecution, dead bodies of two daughters viz. , Suhana and Yasmin, could be found out from the bank of Narmada river and still the dead bodies of other three daughters are not traced. The gruesome act of the accused was witnessed by P. W. 4, Shantaben. There is no dispute to the fact that dead bodies of two daughters of the accused, viz. , Suhana and Yasmin, were found on the bank of Narmada River. On the dead bodies inquest was held and panchnama was also drawn accordingly in presence of panchas. ( 9 ) TO prove this fact, the prosecution has examined and relied upon the evidence of p. W. 6, Dhanjibhai Kalidas, Ex. 21. He is a panch witness in respect of the panchnama prepared after finding the dead body of suhana on the bank of Narmada River and the panchnama is produced at Ex. 22. Similarly, the dead body of another girl, yasmin, aged about 5 years, was also found from the bank of Narmada River. To prove this fact, the prosecution has examined and relied upon the evidence of P. W. 9, siddiquebhai Umarji Mahmad Patel, Ex. 28, who is a panch witness of inquest panchnama. The inquest panchnama is produced at Ex. 29. On a conjoint reading of the oral testimonies of P. W. 6, Dhanjibhai kalidas and P. W. 9, Siddiquebhai and the panchnama at Ex. 22 and Ex. 29, it is clear that the dead bodies of Suhana and Yasmin were found from the bank of Narmada river at Kasia village. In view of the aforesaid evidence, it is clearly established that the dead bodies of two daughters of the accused, viz. , Suhana and Yasmin, were found from the bank of Narmada River. ( 10 ) IN light of the aforesaid fact situation, the point that is to be considered by this court is as to whether was it the accused who had thrown his five daughters into the waters of Narmada River from Sardar bridge. , Suhana and Yasmin, were found from the bank of Narmada River. ( 10 ) IN light of the aforesaid fact situation, the point that is to be considered by this court is as to whether was it the accused who had thrown his five daughters into the waters of Narmada River from Sardar bridge. ( 11 ) IN this connection, the prosecution has mainly relied upon the evidence of p. W. 4, Shantaben Jethabhai, Ex. 19. She has, inter alia, testified that on the day of the incident, at about 4. 10 p. m. she had returned home after dropping both her s granddaughters at the Neelkanth temple. At that time the accused had first thrown two girls into the waters of Narmada River on the eastern side of the bridge. She has further testified that thereafter the accused had an argument with a trucker. After the trucker had left, the accused had thrown other two girls into the river from the western side of the bridge. She has further deposed that she had started coming up towards the bridge, when subsequently the accused had thrown a small girl into the waters of Narmada River. She has deposed that she had seen the accused from a near distance. He was wearing a white shirt and a black pant. She had tried to look for the girls in the water but as soon as they fell into the river, they had drowned. She has further testified that at that time the accused had started running towards Jadeshwar and she also had gone after him in that direction. She saw the accused till the Toll tax and thereafter she could not see him. She has further stated in her testimony that thereafter she had gone to Jadeshwar Police chowky and had told the police personnel maheshbhai and Thakorbhai about the incident. At the Chowky she was told to inform the higher police station. Thereafter both the policemen took her in an autorickshaw to the place where the girls had been thrown. She has further deposed that the higher officer Patel Saheb had also come there and she had shown them the spot. Thereafter dead bodies of two of the girls were found on the next day but the remaining three girls were not found. She has further deposed that the higher officer Patel Saheb had also come there and she had shown them the spot. Thereafter dead bodies of two of the girls were found on the next day but the remaining three girls were not found. She has further deposed that thereafter roshanben, wife of the accused, had met her on the bridge and she had told her about the incident. The dead bodies found on the bank of Narmada River were of roshanben s daughters. The police had questioned her in this regard and had recorded her statement. She has further testified that subsequently after about 10-12 days she was asked to go to the mamlatdar s office where she had identified the accused. She has also deposed that approximately ten people were made to stand in a line from whom she had identified the accused in the presence of the mamlatdar and the panchas. 11. 1. It may be noted that this witness was cross-examined by the accused himself. She has identified the accused from the witness box. She has also stated that the accused was wearing black pant and white bush shirt. She saw the accused at a distance of 60-70 ft. away. She has also identified the accused in the Mamlatdar s office, during T. I. Parade. 11. 2. It is required to be mentioned at this stage that this witness was again cross-examined by the learned advocate of the accused by reopening the cross-examination as per the order recorded below application ex. 49. Lot many suggestions were put to her with regard to the topography of the scene of the incident, minor contradictions in her evidence were pointed out and a suggestion was made that it was impossible for her to see the accused as she was standing below the bridge. She has repelled all these suggestions and successfully withstood the test of cross-examination. She has reiterated in the cross-examination that from the middle of the bridge one person had thrown five girls into the waters of narmada River. On seeing the incident, she raised shouts but nobody came there. She, therefore, immediately went up to the bridge and at that time the accused was running away towards Jadeshwar Chowky Cross road and he was wearing white clothes. On seeing the incident, she raised shouts but nobody came there. She, therefore, immediately went up to the bridge and at that time the accused was running away towards Jadeshwar Chowky Cross road and he was wearing white clothes. ( 12 ) ON reappraisal of the evidence of this witness, according to us, her presence at the scene of offence, was natural as she was working as a labourer on the Sardar Bridge. She is residing on the northern end of sardar Bridge on the bank of Narmada river, Jadeshwar, Bharuch. There was no reason for her to implicate the accused falsely in this heinous crime. On witnessing the horrifying incident, immediately she went to Jadeshwar Police Out Post and informed P. W. 10, Maheshbhai and P. W. 11, thakorbhai, who were on duty at that time at the Police Out Post, about the said incident. They immediately accompanied p. W. 4, Shantaben, in an auto rickshaw to the place of incident as shown by shantaben but as nothing worth noticing could be found there, they directed that she may make a declaration at Bharuch Rural police Station about the said incident and accordingly Shantaben went to Bharuch rural Police Station in an auto rickshaw and met P. W. 18, Vrajlal Patel, PSI, and made a declaration which was reduced in writing and registered as Janva Jog Entry no. 5/2004 and thereafter investigation was put into motion. ( 13 ) ON a conjoint reading of the evidence of P. W. 4, Shantaben and Janva Jog Entry no. 5/2004, Ex. 57, according to this Court, there is no discrepancy or contradiction in her oral testimony as well as Janva Jog entry. She has reiterated in her oral testimony the same facts which she has declared before the PSI of Bharuch Rural police Station which has been reduced in writing and registered as Janva Jog Entry no. 5/2004. Therefore, according to us, her oral testimony as well as the Janva Jog entry, inspire confidence and from the above, it is clearly proved that the accused had thrown his five daughters from the sardar Bridge into the waters of Narmada river. 5/2004. Therefore, according to us, her oral testimony as well as the Janva Jog entry, inspire confidence and from the above, it is clearly proved that the accused had thrown his five daughters from the sardar Bridge into the waters of Narmada river. ( 14 ) IT may be pointed out at this stage that in the Janva Jog entry, which is in the form of a declaration, P. W. 4, Shantaben had stated that the person who had thrown the girls in the waters of Narmada River was wearing white clothes whereas in her oral testimony she has stated that he was wearing black pant and white shirt. 14. 1. According to this Court, this cannot be said to be a contradiction which would adversely affect the credibility of her oral testimony. It is an admitted fact that P. W. 4, shantaben, witnessed the gruesome act of the accused from a stone s throw distance, when she was under the bridge. On seeing the appalling incident, she raised shouts but nobody came in response to her shouts, may be, none was there within the ear-shot. Thereafter she climbed over the bridge and went towards the place from where the accused had thrown her five daughters into the waters of Narmada River. Therefore, one thing is certain that she was standing below the bridge at the time when the person was throwing the girls into the waters of Narmada River but she could see the person throwing the girls into the river. In this fact situation, if we appreciate the evidence of P. W. 4, Shantaben, in its proper perspective, it would be clear that she could have seen the person who had thrown five girls into the waters of Narmada River only upto his waist portion because naturally below that portion would be hidden by the parapet of the bridge. It has come in evidence that the accused was wearing a white shirt at the relevant time. Without knowing the effect that minor contradictions would have at the time of trial and the intricacies of law, the proletariat village woman would have stated in the Janva Jog entry that the person who had thrown the children in the river was wearing white clothes. Without knowing the effect that minor contradictions would have at the time of trial and the intricacies of law, the proletariat village woman would have stated in the Janva Jog entry that the person who had thrown the children in the river was wearing white clothes. It is also required to be appreciated that the Janva Jog Entry contained only a few lines, and it is an abridged form of the whole incident which she had witnessed. It is also required to be appreciated that the janva Jog Entry was made by her in a hot haste and it can also be understood that at that time she could not have recovered from the effect of shock that she must have felt on witnessing the heinous and brutal incident. In fact, Shantaben acted as her conscience directed her and she wanted to get herself relieved from the tension that she had carried on seeing the gruesome incident, by giving the information to the police and in such circumstances no one can expect that the Janva Jog Entry would be in prolix and each and every aspect would be perfect and on careful scrutiny no contradiction could be found out later on. According to this Court. Shantaben has deposed in the Court what she had witnessed and it is also clear that she has not deposed after being tutored. Moreover, her evidence assumes more weightage because the accused was not known to her and she had no axe to grind against him nor had she kept any grudge against him so as to falsely implicate him in such a serious crime. Therefore, according to this Court, minor contradictions here and there would not adversely affect the credibility and reliability of her evidence as, such contradictions are not capable of going into the root of her deposition and shake the base of her testimony. ( 15 ) IT may be noted that as per the prosecution case, in the TI Parade which was arranged in the office of the Executive magistrate, by the Deputy Executive magistrate, P. W. 4, Shantaben has identified the accused in presence of the panchas. To prove this fact, the prosecution has examined and relied upon the evidence of p. W. 8, Ayubbhai Ahmedbhai Patel, who is a panch witness of TI Parade, Ex. 26 and p. W. 16, Bharat Kantibhai Patel, Deputy executive Magistrate, Bharuch, Ex. To prove this fact, the prosecution has examined and relied upon the evidence of p. W. 8, Ayubbhai Ahmedbhai Patel, who is a panch witness of TI Parade, Ex. 26 and p. W. 16, Bharat Kantibhai Patel, Deputy executive Magistrate, Bharuch, Ex. 38, who had conducted the TI Parade. ( 16 ) P. W. 8, Ayubbhai Patel, Ex. 26, has deposed that on 25. 2. 2004, he along with another panch, Rajubhai Nathubhai Patel, had been called by the police to the office of the Mamlatdar at Bharuch. In their presence, after some time, Shantaben had been called. Thereafter, after some time, the accused was brought there and he was made to sit in another room. He has further deposed that with a view to ensure that shantaben and the accused could not see each other, both were made to sit in separate rooms. He has further deposed that when he went to the office of mamlatdar, about 5 to 6 persons were present there. The other panch, Rajubhai was also present with him. He has further deposed that thereafter he had gone to call salimbhai, the accused, whereas, the other panch, Rajubhai, had gone to call shantaben and both had been brought to the office of the Mamlatdar in this manner. Firstly, Salimbhai was brought to the office and the Mamlatdar had pointed out the five to six persons present there and asked him whether he would like to wear the clothes of any of those persons and Salimbhai had expressed his desire to wear the shirt of the person standing third in the row and he wore the T-shirt of the said person and the said person wore Salimbhai s shirt. Thereafter the other panch was told by the mamlatdar to call Shantamasi, whereupon shantamasi came to the office. After that the Mamlatdar asked her, her name and she had stated that her name was Shantaben. Thereafter the Mamlatdar told her that she had seen the person who threw the girls in the river, if could recognize him, she should identify him. Thereafter Shantaben had identified Salimbhai out of the six persons present there. Thereafter the officer had taken his signature on the panchnama and the other panch, Rajubhai, had also signed in his presence. He has identified his signature as well as that of the other panch on the panchnama, Ex. 27. Thereafter Shantaben had identified Salimbhai out of the six persons present there. Thereafter the officer had taken his signature on the panchnama and the other panch, Rajubhai, had also signed in his presence. He has identified his signature as well as that of the other panch on the panchnama, Ex. 27. He has further deposed that during the course of the proceedings of test identification parade, the only people present there were the two panchas, the other five persons who had been called there and the Mamlatdar and shantaben. No police personnel or any other employee was present at that time. He has further deposed that he had seen salimbhai on that day and he was present in the court and he has identified him in court. 16. 1. This witness was cross-examined elaborately by the learned advocate of the accused. A lot of suggestions were put to him to the effect that prior to TI Parade the accused was brought to the office of the mamlatdar and shown to Shantaben. However, he has repelled all these suggestions. This witness has withstood the test of cross-examination successfully and nothing substantial could be brought out from his cross-examination which would impeach the credibility of his evidence. 16. 2. A conjoint reading of the oral testimony of P. W. 8, panch of TI Parade, ex. 26 and the Panchnama Ex. 27, there is no dispute to the fact that this witness has deposed as per the contents of the panchnama. As per his oral testimony and panchnama, about 5 to 6 persons were called and in his presence P. W. 4, shantaben has identified the accused as the person who had thrown five girls into the waters of Narmada River from Sardar bridge. Therefore, there is no reason to doubt the legality and validity of the T. I. Parade arranged by the investigating officer and it cannot be said that TI Parade was a mockery and was not as per the settled norms of holding the TI Parade as enunciated by the Supreme Court in catena of decisions. ( 17 ) TO fortify the case of the prosecution that TI parade was held in accordance with rules and norms, the prosecution has examined and relied upon the evidence of p. W. 16, Bharatbhai Kantibhai Patel, deputy Executive Magistrate, Revenue department, Bharuch who conducted the TI parade, at Ex. 38. ( 17 ) TO fortify the case of the prosecution that TI parade was held in accordance with rules and norms, the prosecution has examined and relied upon the evidence of p. W. 16, Bharatbhai Kantibhai Patel, deputy Executive Magistrate, Revenue department, Bharuch who conducted the TI parade, at Ex. 38. He has, inter alia, testified that at the relevant time he was discharging duties as a Deputy Mamlatdar in the office of the Mamlatdar, Bharuch in the Revenue Department. On 25. 2. 2004, the then PSI, V. J. Patel had brought the accused for TI Parade in connection with c. R. No. I-18/04 of Bharuch Rural Police station. He has deposed that the accused was made to sit in the mid-day meal room of the office and Shantaben had been made to sit in the room of the Circle Officer of the office of the Deputy Mamlatdar. Two panchas had been called for the TI Parade. Of these panchas one was Ayubbhai ahmedbhai Patel and the other was rajubhai Nathubhai Patel. Both the panchas had verified that the accused and shantaben were made to sit in the respective rooms. The accused and shantaben were made to sit in the office in such a manner that they could not see each other and the said fact was also verified by the panchas. He has further deposed that five other dummy persons were called in the chamber of the Mamlatdar for the identification parade. Thereafter he had asked panch No. 1 to call the accused from the mid-day meal room and the accused was brought into the chamber by covering his face with a cloth. The accused was given a choice as to where he would like to stand in the line with the five persons. Thereafter the accused was informed that he could wear the clothes of any of the five dummy persons, whereupon he had worn the T-shirt of the dummy person who was standing third in the row. He has further testified that thereafter Shantaben was called to the chamber from the Mamlatdar s office through panch No. 2 and she was told to identify the person whom she knew to be the accused in the offence from amongst the persons standing there. Thereafter shantaben had identified the accused by pointing towards him. He has further testified that thereafter Shantaben was called to the chamber from the Mamlatdar s office through panch No. 2 and she was told to identify the person whom she knew to be the accused in the offence from amongst the persons standing there. Thereafter shantaben had identified the accused by pointing towards him. He has further deposed that during the course of the TI parade except for him, the two panchas and shantaben, no other employee or any police personnel were present. He has identified his signature on the panchnama, Ex. 27 and identified the accused in the Court. He has further deposed that his office had received a yadi from Bharuch Rural Police Station to prepare a map of the scene of the offence pursuant to which he had sent a yadi dated 12. 3. 2004 to the Nabipur Circle Officer to prepare a map of the scene of the offence. 17. 1. This witness has also been cross-examined at length and in great detail by the learned advocate of the accused. Many suggestions suggesting that prior to TI parade the accused was brought and shown to Shantaben, who has identified the accused. He has repelled all the suggestions and successfully withstood the test of cross-examination. Nothing substantial has been brought out from his cross-examination which could create any doubt in the credibility of his deposition. On the contrary, his evidence inspires confidence about the genuineness of the TI Parade. He has called two panchas. He has also made arrangement to see that prior to TI parade shantaben and the accused cannot see each other. He has also made known to both the panchas about the seating arrangements made for Shantaben and the accused. He has also called other dummy members for attending the TI Parade and thereafter he has called the accused through panch No. 1 by covering the face of the accused by putting a cloth on his face. He allowed the accused to stand in the row as per his wishes at any place and thereafter he was allowed to exchange his clothes with any other person standing in the row and the accused exchanged his cloth with the person who was standing third in the row. He allowed the accused to stand in the row as per his wishes at any place and thereafter he was allowed to exchange his clothes with any other person standing in the row and the accused exchanged his cloth with the person who was standing third in the row. After completing all these formalities, Shantaben was ushered by panch No. 2 into the room where the accused and other dummy persons and panch No. 1 and this witness were present and thereafter Shantaben has identified the accused as the person who had thrown five girls into the waters of narmada River from Sardar Bridge. 17. 2. The evidence of this witness makes it clear that he had arranged the TI Parade as per the norms enunciated by the Supreme court in catena of decisions and and his evidence inspires confidence. 17. 3. On overall appreciation of the evidence of P. W. 4, Shantaben, eye-witness to the incident, P. W. 8, Ayubbhai ahmedbhai Patel, panch No. 1 of the panchnama of TI Parade and P. W. 16, bharatbhai Kantibhai Patel, Deputy executive Magistrate, who arranged the TI parade, it has to be deduced that the TI parade was conducted and arranged genuinely as per the settled norms and in the TI Parade Shantaben has identified the accused as the person who had thrown five girls into the waters of Narmada River from Sardar Bridge. 17. 4. The contention that prior to TI parade, the accused was brought to the office of the Mamlatdar and shown to shantaben and that is why she could identify him cannot be accepted. It is to be appreciated that Shantaben had witnessed the incident from a short distance. It cannot be disputed that memory of certain incidents which produce horror, astonishment, surprise, etc. , may not peter out from the mind immediately. The appalling incident witnessed by the witness Shantaben had very much disturbed her and that is the reason why she rushed to the Jadeshwar police Out Post to give information about the said incident to the police. Thereafter she went to Bharuch Rural Police Station on the advice of Maheshbhai and thakorbhai and declared the said incident before the PSI in some words and as clearly as a labour-class woman could nan-ate. The declaration is only a brief narration of the entire incident that she had witnessed. Thereafter she went to Bharuch Rural Police Station on the advice of Maheshbhai and thakorbhai and declared the said incident before the PSI in some words and as clearly as a labour-class woman could nan-ate. The declaration is only a brief narration of the entire incident that she had witnessed. The demoniacal act of the accused and the horror that generated in her mind after witnessing the incident impelled her to go to jadeshwar Police Out Post and thereafter to bharuch Rural Police Station to register janva Jog Entry. The TI Parade was arranged within a fortnight after the incident and, therefore, the images of the whole incident were very much clear in her mind and before they could fade away, in the TI parade she could identify the accused as the person who had thrown the five girls into the waters of Narmada River from Sardar bridge as she could see the accused from a short distance. It is not the case that shantaben had witnessed the incident for a glimpse. The evidence on record shows that she could see the accused all the time. Therefore, the contention that prior to TI parade the accused was shown to shantaben and that is why she could identify the accused in the TI Parade and hence the TI Parade was a mockery, cannot be believed. It is quite natural that the accused was identified by Shantaben as his face was very much seen by her at the time of the beastly act committed by him and her evidence is very coherent. ( 18 ) NOW this takes us to examine the evidence of the accused taking his five daughters with him on the fateful day from his house on a fib that he was taking them to Dargah and all the five girls of the accused were found with him on the fateful day. ( 19 ) IN this connection, the prosecution has examined and relied upon the evidence of P. W. 3, Roshanben, the complainant, at ex. 17. She has, inter alia, testified that her marriage with the accused had taken place in 1993. She has further deposed that from the said marriage they had five daughters and one son. The eldest daughter was shagufta aged 9 years. The younger daughters were Rukshana aged 8 years, yasmin aged 5 years, Samreen aged 4 years and Suhana aged 3 years. She has further deposed that from the said marriage they had five daughters and one son. The eldest daughter was shagufta aged 9 years. The younger daughters were Rukshana aged 8 years, yasmin aged 5 years, Samreen aged 4 years and Suhana aged 3 years. The youngest was a son named Mahmad Sabir aged 10 months. (i) She has further testified that the incident took place approximately 9 months prior to the recording of her evidence. On that day she was having lunch at 12. 30 in the afternoon when her husband told her that he was going to the dargah. Saying so he left the house with all the five girls, while she had stayed at home to attend the household work. On that day her husband did not return with the girls till late so she had gone to the dargah to look for them but neither he nor their daughters were found. There she had met the Munjhavar of the Dargah who told her that her husband had gone towards the highway with all the five girls. She has further testified that she, therefore, took her father along with her and went to the highway to look for her husband but he was not found. Therefore, she had returned home. At that time she had thought that perhaps her husband might have taken the girls and gone to Surat as in the morning he had mentioned about going to Surat. (ii) She has further testified that at about 4. 30 in the afternoon she had received a telephone call from her husband at their neighbour Ghulam Ali s place, hence she had gone to talk to him on phone. He informed her on telephone that all the five girls have been seated in a train and she should pick them up and he was going on the railway tracks. She had asked her husband as to from where he was talking and he had informed her that he was speaking from Bharuch. Therefore, she went with her father to Bharuch Railway station, but her husband was not found there and hence she returned to Varedia with her father. Her neighbours as well as the village people had also gone in search of her husband and children but they could not find them. Therefore, she went with her father to Bharuch Railway station, but her husband was not found there and hence she returned to Varedia with her father. Her neighbours as well as the village people had also gone in search of her husband and children but they could not find them. (iii) She has further testified that on the next day she had learnt that her husband had thrown her daughters from Sardar bridge into the waters of Narmada River. On the next day Siddiquebhai had also read the same in the newspaper. Thereafter, she and Fatmaben had gone to Jadeshwar Police chowky where the police had recorded her complaint and after that she had returned home. Thereafter they had taken Hamidaben and Fatmaben in a vehicle to the river bank where the dead body of her daughter suhana had been found. Subsequently, on the same day, the dead body of her another daughter, Yasmin, was found. The dead bodies of her other three daughters have not been found till date. She has identified her signature on the FIR. (iv) She has further testified that her husband had incurred debts and used to sit at home and hence she had told him that if he stayed at home and did not work, how would they manage. (v) She has further deposed that after recording her complaint, the police had recorded her statement. The police had recorded her statement twice. Her husband had incurred a debt of Rs. 6,000/- Her husband used to drive Illyasbhai s rickshaw and for the purpose of household expenses he used to give sometimes Rs. 75/-, sometimes Rs. 70/- and sometimes Rs. 50/-, therefore, she had difficulty in running the house and hence she used to have arguments with her husband. 19. 1. It may be noted that this witness was cross-examined by the accused himself. In her cross examination she was asked the question with regard to the amount of rs. 2,500/- borrowed from Mubarak, brother-in-law of Roshanben. It is also required to be mentioned at this stage that after the cross-examination of this witness was over, it was re-opened in pursuance of the order passed by the Court below application Ex. 49 and thereafter she was cross-examined at length and in great detail by the learned advocate of the accused. 2,500/- borrowed from Mubarak, brother-in-law of Roshanben. It is also required to be mentioned at this stage that after the cross-examination of this witness was over, it was re-opened in pursuance of the order passed by the Court below application Ex. 49 and thereafter she was cross-examined at length and in great detail by the learned advocate of the accused. She was asked certain questions with regard to the topography of the hut of P. W. 4, shantaben. She has tried to resile from her statement made in the examination-in-chief and has stated that her husband had not taken her five daughters with him. Therefore she was declared hostile and thereafter the learned APP has cross-examined her. She was again cross-examined by the learned advocate of the accused. 19. 2. The sum and substance of her evidence is that she has deposed in her examination-in-chief as per the contents of her complaint and the statement made by her before the police but during cross-examination she has resiled from the versions made in the complaint and statements made by her before the police. She has not supported the case of the prosecution in cross-examination. But she has supported the case of prosecution in her examination-in-chief. 19. 3. It is also required to be noted that she has been confronted with the complaint as well as the police statement which has been proved by the evidence of P. W. 18, vrajlal Joitaram Patel, investigating officer, ex. 58, whose evidence will be dealt with hereafter. ( 20 ) IN view of the aforesaid fact situation, according to us, the evidence of p. W. 3,roshanben is also consistent with regard to the fact that the accused had taken away his five daughters with him on the fateful day and they were thereafter thrown into the waters of Narmada River from Sardar Bridge by the accused. ( 21 ) TO corroborate the evidence of p. W. 3, Roshanben, the prosecution has also examined and relied upon the evidence of p. W. 5, Faridaben Yunus Suleman Raja, ex. 20. She has, inter alia, testified that roshanben is her younger sister. Her husband Yunusbhai was a driver working at Songadh S. T. Depot. On 3. 2. 2004, being the next day of Bakri Id, she had come to varedia at the house of her younger sister roshanben where she stayed for 2 days. 20. She has, inter alia, testified that roshanben is her younger sister. Her husband Yunusbhai was a driver working at Songadh S. T. Depot. On 3. 2. 2004, being the next day of Bakri Id, she had come to varedia at the house of her younger sister roshanben where she stayed for 2 days. She has further testified that her younger sister Roshanben had five daughters and one son. Son of her sister, Roshanben, was sleeping and her brother-in-law, i. e. , the accused had taken his five daughters with him and gone out of the house and thereafter she and her sister Roshanben had gone searching them. In the evening there was a telephone call for Roshanben. 21. 1. It may be noted that this witness was not cross-examined at the relevant time but thereafter she was permitted to be cross-examined as per the order passed by the court below application Ex. 49. It may be noted that during cross-examination she had tried to resile to a certain extent from her examination-in-chief by saying that no question was asked to her except her name and address. She has also stated that she came to know about the incident that somebody had thrown five girls into the waters of Narmada River. ( 22 ) IT is a common experience and the court is also not unaware that when one of the family members commits a murder of another member of the same family, it would be a very pathetic condition for the other members of the family to depose against the family member who committed the crime. In instant case, P. W. 3, roshanben, who is the complainant, is the wife of the accused. P. W. 5, Faridaben is the elder sister of Roshanben. Besides this, both of them are not eye-witnesses to the incident. Both of them are the witnesses of the previous conduct of the accused but they have not supported it while giving evidence in cross-examination. However, they have been confronted with their previous police statement which have been proved by the evidence of P. W. 18, Vrajlal patel, PSI, Bharuch Rural Police Station and investigating officer, whose oral testimony has been recorded at Ex. 58. However, they have been confronted with their previous police statement which have been proved by the evidence of P. W. 18, Vrajlal patel, PSI, Bharuch Rural Police Station and investigating officer, whose oral testimony has been recorded at Ex. 58. ( 23 ) ON overall appreciation of the evidence of P. W. 3, Roshanben and P. W. 5, faridaben, the former being the wife and the latter being the elder sister of roshanben, it is clear that they had tried to resile during their cross-examination from what they have stated in the police complaint and in the examination-in-chief and so far as P. W. 3, Roshanben is concerned, she has tried to resile also from the complaint filed by her. But they are consistent in the examination-in-chief that the accused had taken with him his five daughters on the fateful day at about 12. 30 in the afternoon, prior to the janva jog entry being made at Bharuch Rural Police Station at the instance of P. W. 4, Shantaben. ( 24 ) THE prosecution has thereafter examined and relied upon the oral testimony of P. W. 10. Maheshbhai kantibhai,ex. 30. He has, inter alia, testified that at the relevant time he was discharging duties as a constable at bharuch Rural Police Station. On 5. 2. 2004 his duty hours were from 14:00 to 20:00 hours at Jadeshwar Police Chowky. Another Police Constable, Thakorbhai ranchhodbhai, was also on duty with him. He has further deposed that at that time he was assigned duties in connection with traffic regulation. He had met the P. S. L. at bharuch Rural Police Station and had reported at Jadeshwar Police Chowky at 2. 00 p. m. , and he along with the other constable, Thakorbhai, was on traffic duty. He has deposed that Jadeshwar Police chowky is situated on Highway No. 8. (i) He has further deposed that in the meanwhile at about 4:30 in the afternoon while they were on duty on the road going towards Bharuch, one Shantaben, who resides below the Sardar Bridge, came there and informed them that some person had thrown five girls from the bridge into the waters of Narmada River. She had also said that he was strongly built and was wearing white clothes and that she had seen the said person. She had also said that he was strongly built and was wearing white clothes and that she had seen the said person. He has further deposed that thereafter he and the other constable had immediately taken Shantaben in a rickshaw and she had shown the place where the person had thrown five girls. He had looked into the water but could not see anything else. They had returned to Jadeshwar chowky with Shantaben and she told them that the said person had come towards jadeshwar Chowky. Thereafter they had sent Shantaben in a rickshaw to Bharuch rural Police Station. He, along with constable Thakorbhai, had searched for the person in the vicinity but he could not be found. After two days they came to know that the individual belonged to Varedia village whose name was Salim and he had thrown these five girls into the waters of narmada River. He has further deposed that the police had recorded his statement in this regard. ( 25 ) THE prosecution has thereafter examined and relied upon the evidence of p. W. 11, Thakorbhai Ranchhodbhai, Ex. 31. He has deposed that at the relevant time he was serving at Bharuch Rural Police Station as a constable. On 5. 2. 2004 he was assigned traffic duties at Jadeshwar Police Chowky from 14:00 to 20:00 hours along with another constable, Maheshbhai Kanjibhai. On that day, at 4:30 in the evening, while they were discharging traffic duties and were standing on the road towards Bharuch where rickshaws used to halt, one shantaben who was residing in a hut below sardar Bridge over the Narmada River, had come there and informed them that one person had thrown five girls from Sardar bridge into the waters of Narmada River and that the said person who was strongly built and wearing white clothes, had gone walking towards Jadeshwar Chowky. He has further deposed that thereafter he and police constable Maheshbhai had taken shantaben along with them in a rickshaw and Shantaben had shown the place where the man had thrown the girls into the river. He has further deposed that they could not see anything in the water and hence they had returned to Jadeshwar Police Chowky and sent Shantaben to Bharuch Rural. Police Station in a rickshaw. Thereafter they had searched for the said person but could not find him. He has further deposed that they could not see anything in the water and hence they had returned to Jadeshwar Police Chowky and sent Shantaben to Bharuch Rural. Police Station in a rickshaw. Thereafter they had searched for the said person but could not find him. He has further deposed that out of the five girls, the dead bodies of two girls were found on the next day. ( 26 ) P. W. 10, Maheshbhai and P. W. 11, thakorbhai, both were cross-examined but nothing substantial could be brought out from their cross-examination which would impeach the creditability of their evidence. ( 27 ) ON overall reappreciation of the evidence of these two witnesses, it can be said that there is no manner of doubt that the testimonies of these witnesses corroborate the evidence of P. W. 4, shantaben. As per their say, P. W. 4, shantaben had immediately rushed to jadeshwar Police Out Post where P. W. 10, maheshbhai and P. W. 11, Thakorbhai were on duty. Immediately both of them along with Shantaben went in a rickshaw to the place of offence and Shantaben had shown the place where the accused had thrown the girls in the river. Thereafter, as nothing notable could be found there, they sent shantaben in a rickshaw to Bharuch Rural police Station. ( 28 ) THE prosecution has thereafter examined and relied upon the oral testimony of P. W. 18, Vrajlal Joitaram Patel, Ex. 58. He is the investigating officer. He has deposed that at the relevant time he was discharging duties as a Police Sub-Inspector at Bharuch Taluka Police Station. On 5. 2. 2004, Shantaben, widow of Jethabhai parshottambhai Patel, had made a declaration before him, and he had reduced the same in writing in accordance with what she had stated. Her thumb impression had been taken below the same and he had made an endorsement below it to the effect that the same was made in his presence, and signed the same. 2004, Shantaben, widow of Jethabhai parshottambhai Patel, had made a declaration before him, and he had reduced the same in writing in accordance with what she had stated. Her thumb impression had been taken below the same and he had made an endorsement below it to the effect that the same was made in his presence, and signed the same. He has further deposed that upon the said declaration being sent to mahmad Ayub, the Police Station Officer, for the purpose of registration, the same was registered as Janva Jog Entry No. 5/04 and thereafter he had taken charge of the investigation and in connection with the janva Jog entry he had drawn the panchnama of the scene of offence in the presence of panchas and had obtained their signatures on the same and he has also put his signature in their presence. He has further deposed that in connection with this case, the statement of Roshanben, wife of salim alias Pravin Ghulam as well as other concerned witnesses were recorded. He has further deposed that on 7. 2. 2004, out of the five girls thrown into the river by the accused, the dead body of Suhanaben was found on the bank of Narmada River and, therefore, an inquest was held in the presence of panchas and a panchnama was drawn accordingly, which is produced at ex. 22. The same had been signed by the panchas and he also had signed the same in their presence. He has further deposed that the Marnotar Form had been filled and a yadi was sent to the Medical Officer, Civil hospital, Bharuch for conducting post-mortem examination of the dead body and the dead body was sent to the Civil hospital. Thereafter, Roshanben, the mother of the deceased, lodged her complaint and the same was recorded in his presence. Her signature was taken below the complaint and he had also put his signature. The complaint was forwarded to p. S. O. Mahmad Ayub for registering the offence, and the same was registered as CR no. I-18/04 for the offence punishable under section 302 IPC after which he had taken charge of the investigation. Her signature was taken below the complaint and he had also put his signature. The complaint was forwarded to p. S. O. Mahmad Ayub for registering the offence, and the same was registered as CR no. I-18/04 for the offence punishable under section 302 IPC after which he had taken charge of the investigation. He has further deposed that in connection with this case, the dead body of another girl Yasminbanu was found on the bank of Narmada River, whereupon inquest was held and a panchnama had been drawn accordingly in the presence of panchas, who had signed the same and this witness had also put his signature in their presence which is produced at Ex. 29. The Marnotar Form had been filled up and a yadi was sent to the Medical Officer, Civil Hospital, bharuch for conducting the post-mortem examination and the dead body was sent to the Civil Hospital, Bharuch. Thereafter he had recorded the statements of Police constables Maheshbhai Kanjibhai and thakorbhai Ranchhodbhai, and other witnesses. Upon the accused Salim alias pravin Ghulam Hussain being found, panchnama of his physical condition was drawn in the presence of panchas, which is produced at Ex. 59. He has further deposed that the accused was arrested in connection with this case. At the Jadeshwar Police chowky, the accused had expressed his willingness to show the scene of offence in the presence of panchas, whereupon preliminary panchnama was drawn and they had proceeded from Jadeshwar chowky in a Government vehicle and come on the Sardar Bridge over Narmada River. The accused had pointed out the spot from where he had thrown the girls into the river and the second part of the panchnama was drawn accordingly in presence of panchas and the same is produced at Ex. 24. He has further testified that in this case the further statements of complainant and other witnesses have been recorded. In order to draw a panchnama regarding test identification parade of the accused, a yadi was sent to the Executive Magistrate, bharuch. For the purpose of Test identification Parade, the accused was presented before the Executive Magistrate, who had carried out the TI Parade and drawn a panchnama accordingly. A copy of the same was obtained and kept in the investigation file. A yadi was sent to prepare the map of the scene of offence. For the purpose of Test identification Parade, the accused was presented before the Executive Magistrate, who had carried out the TI Parade and drawn a panchnama accordingly. A copy of the same was obtained and kept in the investigation file. A yadi was sent to prepare the map of the scene of offence. Investigation was continued as the dead bodies of other three girls were not found. The post-mortem notes of Suhanaben and yasminben were obtained and as there was sufficient evidence against the accused, he was charge-sheeted. 28. 1. This witness was cross-examined at length and in great detail by the learned advocate of the accused. He has reiterated that he has recorded the complaint of p. W. 3, Roshanben, as narrated by her and beneath the same he obtained the signature of Roshanben and after recording her complaint it was sent to Bharuch Rural police Station for registration which has been produced at Ex. 18. He has denied the suggestion that prior to TI Parade he had a discussion with the Executive Magistrate. He has also denied the suggestion that on a ready-made panchnama signatures of the witnesses were obtained. He has also denied the suggestion that statements of the witnesses were recorded as per his whims. 28. 2. In sum and substance, this witnesses has successfully withstood the test of cross-examination. Nothing substantial, suggesting that the investigation made by him was dishonest or which would raise any doubt about the genuineness of the investigation, could be brought out from the cross-examination of this witness. ( 29 ) FROM the totality of the evidence on record, as discussed above, it is clear that the family of the accused was in penury and there was dissonance in the family as his wife was nagging him for not doing any job. With predetermination to commit murder, the accused took his five daughters with him on the fateful day. Those children, who had full faith in him, being their father and natural guardian, followed him, without knowing what destiny had reserved for them. The accused thereafter took the children over to Sardar Bridge and threw them into the waters of Narmadu River and murdered them. What an irony; the creator who should have been the protector has turned out to be the destroyer. The accused thereafter took the children over to Sardar Bridge and threw them into the waters of Narmadu River and murdered them. What an irony; the creator who should have been the protector has turned out to be the destroyer. The gruesome incident was witnessed by shantaben and the action aptly taken by her resulted into the registration of a janva Jog Entry at Bharuch Rural Police station. Roshanben and other family members were made to run from pillar-to-post as the accused and her five children were not returned home till late night. After committing murder of his five daughters, without knowing that a Janva jog Entry was made by Shantaben in bharuch Rural Police Station, under the belief that the dead bodies of his five daughters would be washed away by the currents of Narmada River and would not be found out, and in case found out, the blame may not fall on his shoulder, the accused telephoned to his wife Roslianben and told her that the five girls were seated in a train and she should get them down from Bharuch Railway Station and as for him. he was going to be cut under the train. 29. 1. On seeing the dastardly and gruesome incident, the soft-corners of her gender and being a grandmother of two daughters awoke and inspite of the fact that she belongs to a labour-class family and staying in a hut below the bridge on the bank of the river, P. W. 4, Shantaben acted conscientiously and nothing is there on record which would show that she is an interested witness and wanted to falsely implicate the accused. ( 30 ) ON overall reappreciation, reanalysis, reevaluation and threadbare scrutiny of the entire evidence on record, according to this court, the following points are culled out: (i) There is evidence of P. W. 4, shantaben. who had seen the accused throwing his five daughters from Sardar bridge to the waters of Narmada River. (ii) P. W. 4, Shantaben saw the accused running away towards Jadeshwar Chowky after throwing five girls into the waters of narmada River. (iii) P. W. 4, Shantaben has immediately reported the said incident to P. W. 10, maheshbhai and P. W. 11, Thakorbhai, both police constables, working at Jadeshwar police Out Post. (ii) P. W. 4, Shantaben saw the accused running away towards Jadeshwar Chowky after throwing five girls into the waters of narmada River. (iii) P. W. 4, Shantaben has immediately reported the said incident to P. W. 10, maheshbhai and P. W. 11, Thakorbhai, both police constables, working at Jadeshwar police Out Post. (iv) P. W. 10, Maheshbhai and P. W. 11, thakorbhai, immediately went to the scene of offence with P. W. 4, Shantaben, in a rickshaw and at the scene of offence as they could not see anything notable, they told shantaben to go to Bharuch Rural Police station and lodge Janva Jog Entry. (v) P. W. 4, Shantaben went to Bharuch rural Police Station in an auto rickshaw and informed P. W. 18, Vrajlal Joitaram patel, about the said incident, who registered the said information as Janva Jog entry No. 5/2004. (vi) During the T. I. Parade, P. W. 4, shantaben, identified the accused as the person who had thrown the five girls into the waters of Narmada River from the sardar Bridge. (vii) Validity and genuineness of the T. I. Parade is proved by the evidence of P. W. 8, ayubbhai Ahmedbhai Patel, a panch witness of T. I. Parade and P. W. 16, bharatbhai Kantibhai Patel, Deputy executive Magistrate, who conducted the t. I. Parade. Their evidence is consistent and lends support to the evidence of each other. Their evidence also corroborates the evidence that P. W. 4, Shantaben, has identified the accused during T. I. Parade. (viii) Dead body of two girls, Suhana and Yasmin, were found from the bank of narmada River and those dead bodies were identified by Roshanben as that of her two daughters. It is unfortunate that the dead bodies of other three girls are not found so far nor the whereabouts of those girls are known till today. Therefore, there is all reason to believe that those three girls must have also drowned and been washed away elsewhere or eaten by aquatic animals. (ix) Evidence of P. W. 3, Roshanben, wife of the accused, and P. W. 5, Faridaben, elder sister of P. W. 3, Roshanben, is consistent with regard to the fact that the accused had taken his five daughters on the fateful day and thereafter they were found going towards Jadeshwar. After that dead bodies of Suhana and Yasmin were found on the bank of Narmada River. After that dead bodies of Suhana and Yasmin were found on the bank of Narmada River. Therefore, the five girls were last found with the accused. (x) On the fateful day, i. e. , 5. 2. 2004, the accused gave a deceptive message on telephone to his wife, P. W. 3, Roshanben, that the girls had been seated in a train and she should go and get them down at bharuch Railway Station and as for him, he would be cut under the train. This shows the mens rea on the part of the accused and also the conduct that he was under tremendous tension and frustration after drowning all his five daughters in the waters of Narmada River. (xi) There is evidence to the effect that the accused was indebted to the tune of rs. 6,000/- and owed other debts at Surat also and, therefore, he was under tremendous tension because of financial crunches, which must have led him to take the extreme step of putting an end to the life of his five daughters so that he does not have to maintain them. ( 31 ) ON overall appreciation of the evidence on record, we are satisfied that there is no infirmity or illegality in the reasons assigned by the learned Trial Judge for holding the accused guilty of committing murder of his five daughters. Suffice it to say that the learned Trial judge has given cogent and convincing reasons for holding the accused guilty of commission of the offence of murder of his five daughters, who were innocent and had full faith in him, being their father and natural guardian, we have no hesitation in holding that the action of the accused was "beastly" and such an action is not at all pardonable either by the society in general and the family members in particular and also by the Court. ( 32 ) SEEN in the above context, according to us, the complicity of the accused in murdering his five daughters, named (i)Shagufta, aged 9 years, (ii) Rukshana, aged 8 years, (iii) Yasmin, aged 5 years, (iv)Samreen, aged 4 years and (v) Suhana, aged 3 years, is clearly established by the prosecution. No ground is made out by the learned advocate of the accused to interfere with the finding recorded by the learned trial Judge. No ground is made out by the learned advocate of the accused to interfere with the finding recorded by the learned trial Judge. Therefore, the conclusions arrived at and the findings recorded by the learned Trial Judge, according to us, are just and proper. ( 33 ) MS. Banna Dutta, learned advocate of the accused, has not been able to convince us to take a view contrary to the one taken by the learned Trial Judge. Further more, the ultimate conclusion and the resultant order of conviction recorded by the learned Trial Judge is found to be very imminent, just and proper and, therefore, it has to be upheld as, according to us, no other view or conclusion is possible on the facts and circumstances emerging from the record of the case except the view or conclusion reached by the learned Trial Judge. Hence, we hold the accused guilty of the commission of murder of his five innocent daughters, punishable under Section 302 IPC. ( 34 ) 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 in what category a particular case would fall, depends invariably on varying facts of each case and no absolute rule for invariable application or yardstick as a ready reckoner can be formulated. (i) In the case of Panchhi and others v. State of U. P. (1998) 7 SCC 177 , it has been held by the Supreme Court that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the rarest of rare cases as indicated in Bachan singh v. 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. 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 appellant s economic condition and earnest attempt to purchase a house for his family after raising loans, his 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 the 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. 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 Sliivajirao 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 to be 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 abovementioned 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. ( 35 ) 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 that case, the accused was already serving sentence of life imprisonment. He was found guilty of committing another murder while he was released on parole. Felonious propensity of the offender was made sole basis for awarding death sentence. AIR 1997 SC 2598 . In that case, the accused was already serving sentence of life imprisonment. He was found guilty of committing another murder while he was released on parole. Felonious propensity of the offender was made sole basis for awarding death sentence. On review of the facts, the Supreme Court has held that felonious propensity of an offender cannot be made the sole basis for awarding death sentence, and as it was found that the case was not falling in the category of rarest of rare cases , the death sentence was commuted to one of life imprisonment. ( 36 ) IN the latest decision of the Supreme court in the case of Kama Subramanian v. State of Kerala, 2005 AIR SCW 6291, the accused whose services were earlier terminated by the 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 cruel and dastardly in nature and the accused deserves no mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9. 8. 1999. The accused was annoyed by the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. Taking the overall facts into consideration, the Supreme Court did not think it proper to hold that it was one of the rarest of the rare cases where death sentence could be the only punishment and hence the sentence of death imposed on the accused was commuted to life imprisonment. ( 37 ) APPLYING the principles laid down by the Supreme Court in the abovereferred 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, there is evidence to the effect that the accused was indebted to the tune of rs. 6,000/- in the village and he also owed other debts at Surat and hence he was under tremendous tension. However, the mitigating circumstances cannot be overlooked by the Court. In instant case, there is evidence to the effect that the accused was indebted to the tune of rs. 6,000/- in the village and he also owed other debts at Surat and hence he was under tremendous tension. After committing the crime, he gave a deceptive message to his wife that he had seated his five daughters in a train and she should go to the railway station and fetch them and as for him, he would be severed under the train. This fact shows that after the incident, he was under tremendous tension and wanted to commit suicide. However, subsequently, for the reasons best known to him, he must have changed his mind regarding committing suicide. ( 38 ) FROM the aforesaid aspects, there is a reason to believe that the accused did the unpardonable crime of committing murder of his five daughters because he was under tremendous tension on account of indebtedness and unable to maintain his large family. After committing the crime, he also repented for the same and he wanted to commit suicide but for some reason he could not do that. Considering the overall evidence on record, we are of the opinion that the accused can be reformed and after releasing from the jail on completion of imprisonment for life he can be restored to society and it cannot be said that he would be a menace to the society in future since no material is placed before us to draw such a conclusion. ( 39 ) HAVING regard to the principles laid down by the Supreme Court in several reported decisions and more particularly in view of the fact that the accused is repenting for his act and he has no quarrel with anybody, this Court is of the opinion that death sentence imposed on him deserves to be commuted to one of the imprisonment for life. ( 40 ) THE contention raised by the learned app that if this Court is inclined to commute death sentence imposed on the accused to imprisonment for life, direction should be given that the accused shall not be entitled to any commutation or premature release under the provisions of the Code, Prisoners Act, Jail Manual or any other statutes or rules made for the purpose of grant of commutation or remissions and that the accused should be directed to undergo imprisonment for whole of the remaining period of his natural life, need not be accepted, having regard to the facts and circumstances of the case which have been narrated by this Court in earlier paragraphs of this judgment. As observed by the Supreme Court, every murder, per se, is brutal and, therefore, direction as sought for by the learned APP. need not be given in instant case, more particularly, when it is not pointed out to us on behalf of the State that the accused, who is hailing from a poor family and has no criminal background and that it would not be reasonably possible to get him rehabilitated, or that he would be a menace to the society. Moreover, this Court cannot be oblivious of the fact that he has one son, who has now to be looked after and taken care of by his wife, Roshanben, and after release from jail, the accused may be of some help to them in future. ( 41 ) 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 murder of his five daughters, it is also required to be held that this is not a rarest of the 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 imprisonment for life. ( 42 ) FOR the foregoing reasons. Criminal confirmation Case No. 1 of 2006 is dismissed whereas Criminal Appeal No. 113 of 2006 is partly allowed. On the contrary, according to us, this is a fit case wherein the death sentence deserves to be commuted and modified into imprisonment for life. ( 42 ) FOR the foregoing reasons. Criminal confirmation Case No. 1 of 2006 is dismissed whereas Criminal Appeal No. 113 of 2006 is partly allowed. (i) Resultantly, conviction of the accused for commission of the offence punishable under Section 302 of the IPC for committing murder of his five daughters (i) Shagufta aged 9 years, (ii) Rukshana aged 8 years, (iii) Yasmin aged 5 years, (iv) Samreen aged 4 years and (v) Suhana aged 3 years, is hereby confirmed and maintained. However, death sentence imposed on the accused for commission of murder of his five daughters, is hereby commuted and modified into imprisonment for life. (ii) Accordingly, Criminal Confirmation case No. 1 of 2006 and Criminal Appeal no. 113 of 2006 stand disposed of. Cases disposed of accordingly.