JUDGMENT : S. K. KULSHRESTHA, J. Appellant-Narayan Singh has filed this appeal against the judgment dated 9-5-2007 of the learned II Additional Sessions Judge, Ujjain, in Sessions Trial No. 25/2005, by which the appellant has been convicted under section 302 on three counts and sentenced to death, subject to confirmation by this Court under section 366(1) of the Code of Criminal Procedure; under section 307 for attempting at the life of Shashank Shah (PW 1); under section 307 for attempting at the life of Nandini Shah (PW 9), for which the accused has been awarded imprisonment for life under each count; under section 364 of the Indian Penal Code for abduction of Shashank Shah (PW 1) and Nandini Shah (PW 9) for which sentence awarded is imprisonment for life; under section 404 of the Indian Penal Code, to three years rigorous imprisonment and fine of Rs. 1,000/-; and, under section 201 for screening the above offences and sentence of five years rigorous imprisonment and fine of Rs. 1,000/- thereunder. 2. Since sentence of death has been awarded, Death Reference No. 1/2007 has been received from the trial Court under the provisions of section 366(1) of the Criminal Procedure Code for confirmation of the death sentence. Both, the appeal and the Death Reference, arise out of the same judgment, thus, they are being disposed of by this common judgment. 3. According to the case of the prosecution, deceased K. K. Shah and his wife, along with three minor children namely; Shashank, Vaibhav Laxmi and Nandini, was living in the house situate at Sl. No. 3, Laxmi Nagar, Ujjain, and was an Advocate by profession. The accused, with a view to provide him Gold at a nominal rate, used to visit the house of K. K. Shah. On the date of the incident, i.e., 25-9-2004, at about 1.00 in the afternoon, Shashank (PW 1) returned from School and he was informed by his father that he had been called by the accused and, therefore, he was going to Bhopal for bringing the Gold and that he shall return the next day. While leaving, the deceased K. K. Shah had taken with him 20 notes of the denomination of Rs. 1,000/- each and Shashank had escorted him upto Maksi Road. While leaving, the deceased K. K. Shah had taken with him 20 notes of the denomination of Rs. 1,000/- each and Shashank had escorted him upto Maksi Road. On 26-9-2004, at about 8.30 or 9.00 a.m., the accused Narayan came to the house of K. K. Shah and told his wife deceased Renuka that she has been called by the accused to Dewas. Without suspecting the bona fide of the accused, she left for Dewas along with her younger daughter Vaibhav Laxmi. The accused returned to their house and told Shashank and Vaibhav Laxmi (deceased) that their parents had called them to Dewas, and he took them upto the road triangular bifurcation and asked Shashank to wait. Co-accused Sumit was noticed at the square with his motorcycle and he took away Vaibhav Laxmi and came back after a shortwhile. Thereafter he took Shashank on his motorcycle and both the accused then went upto the bye-pass. On way, on the ground that they wanted to pass urine, they parked the motorcycle and accused Narayan caught hold of the hands of Shashank and the co-accused Sumit put a ligature of the rope in his neck and thereafter strangulated him, stating that his parents and sisters had already been done to death. After giving fist blows and kicks, he was thrown into a ditch but on regaining consciousness, he found that he was having only an underwear on his body. He, therefore, went upto Ashram and approached Vijayganj Mandi, Police Station, after getting lift in a Truck. He lodged the report at P.S. Vijayganj Mandi, on the basis whereof an FIR was registered at P.S. Madhav Nagar. On inspection of the house of K. K. Shah, on a paper, the address of Narayan Singh, became available and on that basis, Narayan Singh was arrested and on the basis of the information furnished by him, accused Sumit (Juvenile) was also arrested. During investigation, it was learnt that accused first stayed in a Dharamshala, in Bhopal, on 25-9-2004 and called Kishore Shah, on the same night and stayed in Shruti Lodge. In the lodge both the accused committed the murder of K. K. Shah by strangulating him by means of a rope and thereafter put his head in the solution of Acid so as to destroy his identity. 4. In the lodge both the accused committed the murder of K. K. Shah by strangulating him by means of a rope and thereafter put his head in the solution of Acid so as to destroy his identity. 4. Next day, the accused went to the house of K. K. Shah and brought Renuka and Nandini to Dewas. Renuka was left at Dewas, but Nandini was taken 22 Kilometres away towards Bhopal, where they attempted to cause her death and thinking that she had died, they had left her there. However, she was noticed by a shepherd (Siddhu Singh -PW/7) who removed the ligature from her neck and took her to Police Station, Sonkatch. 5. According to the case of the prosecution, both the accused then took Renuka to Simrol and in the jungle they put a ligature on her neck, after removing her ornaments. Daughter of Kishore Shah, Vaibhav Laxmi, was also taken on a motorcycle towards Vijayganj Mandi and in the Sabukhedi jungle, she was killed by strangulation and the same treatment was given to Shashank (PW 1) who, however, survived. 6. The prosecution alleges that the family members of K. K. Shah had come to know that accused Narayan Singh and accused Sumit, by alluring K. K. Shah, were taking undue advantage and in order to evade any adverse consequence, they killed all the members of the family, one by one and attempted at the life of Shashank (PW 1) and Nandini (PW 9). They stayed in Dharamshala under wrong name, from where their finger prints were lifted and sent for comparison to the Finger Prints Expert. On the basis of the information furnished, the watch belonging to Kishore Shah as also cash, and, frock, belonging to Nandini, and ornaments, belonging to Renuka Shah, were recovered. The blood stained clothes of the deceased as also a lock of hair clinched in the fist of Renuka, were seized and compared with the hair taken from the head of the accused. Nail clippings were also taken and the seized articles were sent to the Forensic Science Laboratory for analysis and report. 7. Since accused Sumit was a lad below 18 years, he was sent for trial to the Juvenile Court. 8. On charges being read out to the accused, he denied having committed any offence and stated that he was innocent. Nail clippings were also taken and the seized articles were sent to the Forensic Science Laboratory for analysis and report. 7. Since accused Sumit was a lad below 18 years, he was sent for trial to the Juvenile Court. 8. On charges being read out to the accused, he denied having committed any offence and stated that he was innocent. However, on trial, the Court found him guilty, as hereinabove stated, and sent the case to this Court, under section 366(1) of the Criminal Procedure Code, for confirmation of the death sentence awarded on three counts : death of K. K. Shah, Renuka Shah and Vaibhav Laxmi. It is in this background that the accused has filed appeal against the conviction and sentence while Reference has been received from the trial Court for confirmation of the death sentence in respect of the triple murder. 9. We have heard learned counsel for the parties and perused the record. 10. Before us, it has not been disputed that K. K. Shah, Renuka Shah and Vaibhav Laxmi have died and that their death was homicidal. With regard to the injuries sustained by Shashank (PW 1) and Nandini (PW 9), there is medical evidence on record to substantiate the same. Notwithstanding that, this aspect has not been disputed, we shall refer to it at the appropriate place hereafter, while discussing evidence in respect of the murder of K. K. Shah, Renuka Shah and Vaibhav Laxmi and attempted murder of Shashank Shah and Nandini Shah. 11. Before analysis of the prosecution evidence in respect of each murder and attempted murder, we deem it proper to refer to the testimony of Shashank (PW 1) and Nandini (PW 9) to give an aerial view of the prosecution case. Shashank (PW 1) is a lad aged 14 years. With a view to elicit whether he was capable of intelligibly answer the questions, a few questions were put by the learned Judge and satisfying with the answer thereto, he was administered oath. In his testimony, Shashank has stated that he knew Narayan Singh who was on visiting terms. He further stated that about 9 or 10 months prior to his testimony, on 25-9-2004, at about 1.00 p.m., while he had returned from his School, his father had told him that he was leaving for Bhopal, as Narayan Singh had called him over the telephone. He further stated that about 9 or 10 months prior to his testimony, on 25-9-2004, at about 1.00 p.m., while he had returned from his School, his father had told him that he was leaving for Bhopal, as Narayan Singh had called him over the telephone. He had also stated that some purchase of Gold would materialise there and he would come the next day. At that time, his father had a sum of Rs. 20,000/- in the notes of the denomination of Rs. 1,000/-. He had counted the notes and given them back to his father. Thereafter he had taken his father on his bicycle to the Bus Stand and returned after dropping him there. The family members had also talked to him at about 9.00 or 10.00 p.m., over the telephone. 12. According to the testimony of Shashank, at about 8.00 or 8.30 in the morning, accused Narayan Singh came to their house and told his mother Renuka Shah that she was called by her husband. His younger sister Nandini also got ready for accompanying her. After they left, at about 6.00 in the evening, Narayan Singh came back and told him that both, brother and sister, he himself and his sister Vaibhav Laxmi, have been called to Bhopal, with the result they locked the house and left for Bhopal. Narayan Singh met them at the square along with his friend. Sumit, Juvenile Accused, was waiting on a Hero Honda Motorcycle. Narayan Singh and Sumit made his sister sit between them and stating that they were going to Dewas, they had left. Narayan Singh had told him that he should come to the Tower where they would drop Vaibhav Laxmi. Shashank (PW 1) went to the Tower but when till 7.00 O'clock in the evening none came, he came back home. After a while, Narayan Singh came back and asked him to accompany him. He found Sumit along with Hero Honda at the square. He was taken on that motorcycle. 13. While they were proceeding on the motorcycle towards Dewas, accused had stopped the bike to make a phone call and thereafter when they proceeded further, Narayan Singh told accused Sumit that the place was not suitable and thereafter he was taken to Dewas by Car where Narayan Singh represented that he wanted to pass urine. 13. While they were proceeding on the motorcycle towards Dewas, accused had stopped the bike to make a phone call and thereafter when they proceeded further, Narayan Singh told accused Sumit that the place was not suitable and thereafter he was taken to Dewas by Car where Narayan Singh represented that he wanted to pass urine. When the motorcycle was stopped and he also started urinating, Narayan Singh caught hold of his hands, while Sumit put a ligature of rope in his neck and though he tried to shout for help, Narayan Singh muffled his mouth and started administering fist blows and kicks. After he gained back consciousness, he went to Radha Swami Satsang, where he knocked the door and a person came out from whom he asked for water and informed him about the incident. He saw a Truck and he asked for lift. The Truck dropped him at Vijayganj Mandi and on noticing a Police -Out-Post, he lodged report Ex.P/1. 14. The testimony of Nandini Shah (PW 9), aged 6 years, is more or less on the same lines. She has stated that her mother's name was Renuka Shah, while Vaibhav Laxmi was her sister. At the relevant time, they were residing in Laxmi Nagar, Ujjain. Accused Narayan Singh used to frequently visit their house. He had taken her mother on the pretext that her father had gone to Bhopal and had called her. They, therefore, proceeded towards Dewas in a Bus. The accused had stated that he was taking her to her Daddy (father). However, Narayan Singh took her on a motorcycle towards the jungle along with a friend and gave her a few slaps. Thereafter he put a ligature in her neck and threw her in the jungle. One shepherd arrived and on noticing that she was alive, he gave her water and biscuits. 15. She had gone to Jail for identification of the accused and she had duly identified accused Narayan Singh, of which Memo Ex.P/2 was prepared, which bears her signature. 16. After the above outline of the prosecution story, we now proceed to consider the evidence of the prosecution, as regards each murder and attempted murder. The first casualty in the series was that of K. K. Shah. We have already referred to the evidence of Shashank (PW 1). 16. After the above outline of the prosecution story, we now proceed to consider the evidence of the prosecution, as regards each murder and attempted murder. The first casualty in the series was that of K. K. Shah. We have already referred to the evidence of Shashank (PW 1). He has stated that his father, K. K. Shah, left for Bhopal, carrying with him Rs. 20,000/- in notes of Re. 1,000/- denomination. Fulsingh (PW 11) was working as a Waiter in Shruti Lodge, Chhola Road, Bhopal, and his duty hours were from morning 5.00 to evening 5.00 or 6.00. He has identified the accused in dock and has stated that about a year ago from the date of his examination, while he was standing at the counter of the Lodge, two persons had come, out of whom one was the accused and the other, a boy aged 18 or 19 years. They had hired a room in the said lodge. Thereafter he had seen that in the room which was occupied by the accused and the other person, a person was lying with a bucket covering his face. The matter was reported to the Police and photographs of the deceased were taken. He had also been called to the Jail for the identification of the accused. The accused had been mixed up with 7 or 8 persons and he had correctly identified him, of which memo Ex.P/20 was prepared. He has also confirmed the articles seized from the place, vide memo Ex.P/7. Ramesh Chand Mewada (PW 5) had also seen two persons who had booked Room No. 6, both of them appeared to be about 40 years old and one of them was the accused in the dock. It was noticed that Room No. 6 had been closed from outside and when the door was opened, a dead body was found inside. Ashok Kumar Chokse (PW 6) is the owner of the Lodge. He has confirmed that the accused in Dock and another person had come to hire a room in the lodge and they were given Room No. 6. He has also exhibited the entry to this effect in the Register of the Lodge. He was informed that there was dead body in the Room No. 6 and after verification, report was made. He is also a witness to the inquest memo Ex.P/10. He has also exhibited the entry to this effect in the Register of the Lodge. He was informed that there was dead body in the Room No. 6 and after verification, report was made. He is also a witness to the inquest memo Ex.P/10. S. K. Verma (PW 10), on 26/09/2004, was posted as Sub-Inspector at P.S. Hanumanganj, Bhopal. Ashok Chokse (PW 6) had lodged report (Ex.P/11) with regard to a dead body having been found in the Lodge. On the basis of the report, inquest was held and memo Ex.P/9 was prepared in the presence of the witnesses. Dharmendra Shah (PW 20) has identified the body of K.K.Shah while it was exhumed vide Ex.P/23 and identified as per memo Ex.P/24. 17. Premchand Gangrade (PW 38), brother of deceased Renu Shah, has also identified the body of deceased K. K. Shah. Rajendra Yadav (PW 42) had taken the dead body of K.K. Shah for post-mortem examination, from where he had brought his clothes in a sealed bundle and produced before the Police Station, where it was seized vide Ex.P/64. 18. After the body of the deceased K. K. Shah was received, Dr. C. S. Jain (PW 65), conducted the autopsy. Dr. C. S.Jain, was posted at Bhopal as a Specialist. On examination of the body, he had noticed that both the hands of K. K. Shah had been tied from behind and he had various injuries on his body. In his opinion, the death of K. K. Shah was asphyxial. He gave his report Ex.P/106. 19. Suresh Rai (PW 2), as already pointed out, is a witness who has identified the accused and stated that he was frequently visiting Jaiswal Dharamshala. Since he was a known customer, he did not make entry in the Register. Thereafter STD / PCO bills were recovered and seized vide Ex.P/60. He had also identified accused Narayan Singh in the test identification parade. Bhagwati Prasad Jaiswal (PW 3), Manager of the Lodge, had seen the finger prints of the accused on the window panes of the Lodge which were lifted later by the Police. He has also identified the accused. Jugal Kishore (PW 10), Chowkidar, deposed before the Court that the accused was noticed leaving the place hurriedly along with his bag. Purushottam (PW 19) had also identified the accused and Satish (PW 8) who was having STD / PCO, has likewise identified him. He has also identified the accused. Jugal Kishore (PW 10), Chowkidar, deposed before the Court that the accused was noticed leaving the place hurriedly along with his bag. Purushottam (PW 19) had also identified the accused and Satish (PW 8) who was having STD / PCO, has likewise identified him. Evidence of Purushottam (PW 19), Barber, is significant as accused had a small injury on his finger and he had approached him for alum. 20. The prosecution has also examined Rashid Siddiqui (PW 44), Finger Print Expert, who has referred to the Memo Ex.P/77, under which the finger prints were lifted and the report Ex.P/78, to the effect that the first eight finger prints referred for his examination, on comparison, were found to be of the accused Narayan Singh (right middle finger). 21. Shivcharan Sharma (PW 52) had taken the photographs of the spot and of the finger print, Abdul Salim Khan (PW 61) had deposed to the seizure of the STD / PCO document, while Jamil Khan (PW 62), Tehsildar, is a witness to the exhumation of the body. 22. From the above discussion, it is luculent that the prosecution has succeeded in proving that on the pretext that the accused would enable the deceased K. K. Shah to buy Gold at lower rates, deceased K. K. Shah was called to Bhopal and Room No. 6 was hired by the accused persons in which deceased K.K.Shah and accused Narayan Singh were together. The said room was found bolted from outside and on opening the door, it was noticed that deceased K. K. Shah was lying dead with his head and face inside a bucket. The evidence of Dr. C. S. Jain (PW 65) clearly points to the homicidal death of K. K. Shah. Shashank (PW 1) had duly deposed that his father had told him that he was going to Bhopal as the accused had called him and thereafter, all members of the family were taken one after the other and meted the same fate. It clearly discloses that the death of K. K. Shah was caused by none else but the accused. 23. We now proceed to consider the case of the death of Renu Shah. It clearly discloses that the death of K. K. Shah was caused by none else but the accused. 23. We now proceed to consider the case of the death of Renu Shah. We have already referred to the testimony of Shashank (PW 1), that the next day at about 8.00 or 8.30, the accused again came to the house of K. K. Shah where his mother and two sisters were present. Accused informed his mother that the deceased K. K. Shah had called him and believing him, they had left with his younger sister Vaibhav Laxmi. Shivsharan Singh (PW 14), an Autorickshaw Driver, has stated that accused Narayan Singh and Renu Shah had travelled in his Rickshaw upto the Bus Stand along with a child aged about 10 or 12 years. He has also identified him in the test identification parade, vide Memo Ex.P/2. Haleem (PW 26) was having a puncture repair shop, who has also identified the accused in the test identification parade, vide Ex.P/2. Bharat Mandloi (PW 47) has identified the dead body and Shakil Khan (PW 48) saw the dead body and on his report Ex.P/85 was registered and inquest was held, vide Ex.P/89. Dr. Bharat Prakash (PW 60) examined the dead body of Renu. In his examination, he has pointed out that there was contusion 6 x 4 cm on the right wrist; abrasion 10 x 3 cm, near naval; about 10 small abrasions measuring "¼ x "¼ cm; a bruise 1 x 1 cm on the left leg; one abrasion 3 x 1 cm on left leg and an abrasion 8 x 5 cm on the lower side of the left arm. In his opinion, the deceased had died on account of strangulation and the death was homicidal. Indramani Patel, Sub-Inspector, (PW 63) has deposed that on 28-9-2004, he was posted at Simrol Police Station. He had registered an inquest under section 174 of the Criminal Procedure Code, in respect of the death of a woman. After holding inquest, on the basis of the information given by Shakil Khan, he had prepared spot map and noticed from the dead body that the ornaments had been taken away. 24. The above narration of facts leaves no manner of doubt that deceased Renu died a homicidal death and that she was seen by Haleem (PW 26) and Shivsharan Singh (PW 14) in the company of the accused. 24. The above narration of facts leaves no manner of doubt that deceased Renu died a homicidal death and that she was seen by Haleem (PW 26) and Shivsharan Singh (PW 14) in the company of the accused. There is direct evidence of Shashank (PW 1) to the effect that accused had taken her away along with child Vaibhav Laxmi. 25. Coming to the death of Vaibhav Laxmi, it is clear that she was seen last going with the accused, as deposed to by Shashank (PW 1). Gabbar Singh Yadav (PW 15) had identified the accused also in the test identification parade (Ex.P/2) and has deposed that the boy and a girl were seen with the accused. A.S.I., R. S. Chouhan, (PW 34), at the Out-Post Vijayganj Mandi, had registered a 'merg' Ex.P/52-C, on the basis of which, a case was registered at the Police Station, Bank Note Press, Dewas. He also held inquest on the dead body. Constable, Kamal Singh (PW 43), took body of Vaibhav Laxmi to Hospital for post-mortem examination and after post-mortem examination, brought her clothes back in a sealed bundle. Dr. N. M. Unda (PW 64) conducted autopsy and gave report Ex.P/105. According to the testimony of Dr. Unda, the deceased had several injuries and she had died on account of strangulation. The death was homicidal. He also opined that there were symptoms of sexual abuse in relation to the girl child. Vijay (PW 49) was a witness to the inquest and seizure vide Exs. P/59 and P/60 and he had identified the dead body. 26. From the evidence referred to above, it is clear that Renu and Vaibhav Laxmi were taken by the accused by practising fraud, stating that Renu's husband had called her and thereafter they were found dead. The dead body of Vaibhav Laxmi, after conducting inquest, was sent to the Hospital for post-mortem examination where Dr. N. M. Unda (PW 64) conducted the autopsy and gave opinion about the homicidal death, coupled with the indications of sexual abuse. Under these circumstances, it is manifest that Vaibhav Laxmi met homicidal death and the clinching circumstantial evidence establishes that her death has been caused by none else but the appellant - accused. 27. This takes us to the question of offence under section 307 of the Indian Penal Code, in relation to Shashank (PW 1) as also Nandini (PW 9). Under these circumstances, it is manifest that Vaibhav Laxmi met homicidal death and the clinching circumstantial evidence establishes that her death has been caused by none else but the appellant - accused. 27. This takes us to the question of offence under section 307 of the Indian Penal Code, in relation to Shashank (PW 1) as also Nandini (PW 9). Shashank has himself testified to the manner in which the accused persons caught hold of him and tried to strangulate him and thinking that he had died, they had left him. However, both Shashank (PW 1) and Nandini (PW 9) had miraculously survived. Madanlal (PW 17) stated before the Court that while he was reading, a child came to him and asked him to take him inside his house. He was taken inside, made comfortable and offered water. The boy was 14 or 15 years of age. He had a rope tied around his neck and he was in his underwear and T-Shirt. He had noticed a number of injuries on his face. He was then asked to report to the Police. Gabbar Singh Yadav (PW 15) deposed before the Court that while he was sitting near the Ganpati Temple, he had seen that children of the Advocate, deceased K. K. Shah, were being taken on foot by the accused. Accused was joined by another person who was about 17 or 18 years of age. He had also identified the accused in the test identification parade, vide Memo Ex.P/2. With regard to the injuries of Shashank (PW 1), Dr. Mohit Tanwar (PW 37) has been examined who has given MLC Report (Ex.P/65) in respect of Shashank and Ex.P/66 in respect of Nandini. Dr. Mohit Tanwar has deposed that Shashank was brought to him for medical examination. He had a ligature mark on his neck and there was conjunctivitis in his eyes from which he was bleeding. He has affirmed that such an injury can be caused where rope is tied to neck and pulled. A.S.I., R. S. Chouhan (PW 34) has stated that he was posted at Out-Post, Vijayganj Mandi. On 27-9-2004, on the basis of the information received, an offence under sections 364, 307 r/w 34 of the Indian Penal Code was registered. He has also stated that Shashank had marks of ligature around his neck and has deposed to further investigation in this behalf. 28. On 27-9-2004, on the basis of the information received, an offence under sections 364, 307 r/w 34 of the Indian Penal Code was registered. He has also stated that Shashank had marks of ligature around his neck and has deposed to further investigation in this behalf. 28. Shashank himself has deposed about the manner in which the appellant acted and attempted to cause his death, from which he had a miraculous escape. The case of Nandini (PW 9), aged 6 years, is no different. Apart from the above testimony of Nandini (PW 9), Siddhu Singh (PW 7) has testified that he found that she was bleeding and he had also identified the accused in the test identification parade, of which memo Ex.P/2 was prepared. In her case, Chowkidar, Munshi (PW 12), had lodged report FIR (Ex.P/14) which was recorded by Mansingh (PW 57) at Police Station, Sonkatch. Shivnarayan (PW 18) had also stated that two persons had come and identified the appellant, vide Memo Ex.P/2. Dr. Mohit Tawar (PW 37) had examined the injuries of Nandini (PW 9) and given a definite opinion that the mark which she had sustained encircling her neck, was that of rope. 29. From the above testimony, there can be no manner of doubt that while K. K. Shah, his wife Renu and their daughter Vaibhav Laxmi, aged 6 years, were killed and the effort was made by the appellant to cause death of Shashank (PW 1) and Nandini (PW 9), who had been kidnapped by the accused, there is no convincing evidence with regard to the commission of an offence under section 404 of the Indian Penal Code. Under these circumstances, the conviction of the appellant under section 302 on three counts namely; murder of K. K. Shah, Renu Shah and Vaibhav Laxmi; conviction under section 307 on two counts; attempting at the life of Shashank Shah (PW 1) and Nandini (PW 9) and conviction of the appellant under section 364 for abduction of Shashank (PW 1) and Nandini (PW 9), by enticing them to accompany the accused, is fully sustainable. However, the evidence being deficient of the degree of proof required with regard to the commission of offence under section 404 and also under section 201 of the Indian Penal Code, the conviction under section 404 of the Indian Penal Code and the sentence awarded thereunder; and, under section 201 of the Indian Penal Code and the sentence awarded thereunder, are set aside. 30. Accordingly, the appeal partly succeeds. In view of the fact that conviction of the appellant under section 302 of the Indian Penal Code on three counts; under section 307 of the Indian Penal Code on two counts; and, under section 364 of the Indian Penal Code on two counts, has been upheld, we proceed to consider whether the case calls for confirmation of death sentence under the provisions of section 366(1) of the Criminal Procedure Code. We may at once observe that though the murder of three persons is diabolic and macabre, we have to see whether on the basis of settled principles of 'the rarest of rare cases', the facts and circumstances of the case satisfy the requirement for awarding death sentence. Learned Additional Sessions Judge, has referred to the decision in Asharfi Lal and Sons vs. State of U. P., AIR 1987 SC 1721 in order to come to the conclusion that in the case of death of innocent girls being caused, death sentence can be awarded. The said case proceeds on the footing that the death of the girls was caused on account of enmity and in a diabolic manner. In the present case, though it is true that the accused practiced deception and succeeded in enticing the deceased one by one and caused their death and that his act was gruesome, nothing has been brought on record to show that after the death of K. K. Shah, the accused was still having a motive to cause death of his wife and child and also for attempting death of Shashank (PW 1) and Nandini (PW 9). 31. Learned Additional Sessions Judge has also observed that for a small amount the accused committed murder one after the other. We are unable to perceive why the intention to commit murder would persist after causing the death of K. K. Shah. 31. Learned Additional Sessions Judge has also observed that for a small amount the accused committed murder one after the other. We are unable to perceive why the intention to commit murder would persist after causing the death of K. K. Shah. It is not a case of the prosecution that Renu Shah, Vaibhav Laxmi, Shashank (PW 1) and Nandini (PW 9) had been enticed away for causing their death and to rob them of their valuables. The only allegation of the prosecution is that the deceased K. K. Shah had taken Rs. 20,000/- with him while leaving for Bhopal and even assuming that the intention of accused Narayan Singh was to rob deceased K. K. Shah of the said amount, the motive extinguished with the death of K. K. Shah and did not persist for causing death of Renu, Vaibhav Laxmi or for causing injuries to Shashank (PW 1) and Nandini (PW 9). Though we do agree with the learned Judge that the act of the accused is gruesome, yet, in view of the circumstantial evidence and the fact that no explanation has been brought on record for causing the death of the wife of K. K. Shah namely; Renu and her child, we find that it would be hazardous to confirm the death sentence awarded to the appellant for commission of the triple murder. We are, instead, of the view that sentence of life imprisonment under each count under section 302 would meet the ends of justice. 32. Ex-consequentia, the appeal filed by the appellant partly succeeds and while he is acquitted of the charge under sections 404 and 201 of the Indian Penal Code and the sentence awarded thereunder, is set aside, his conviction under section 302 on three counts is upheld and he is awarded imprisonment for life and fine of Rs. 5,000/- under each count. In default of payment of fine, the accused shall undergo one year rigorous imprisonment under each count. The conviction of the appellant under section 307 on two counts, is maintained and so also the imprisonment for life awarded to the appellant thereunder. The conviction of the appellant under section 364 for kidnapping of Shashank (PW 1) and Nandini (PW 9) is also maintained and so also the imprisonment for life awarded to him thereunder. All the sentences shall run concurrently. The appeal and the Death Reference are accordingly disposed of.