Honble SHARMA, J.–Five persons of Elephant-riders family were battered to death on October 27, 2006 in the historic Amer area of Pink City Jaipur. Sahib Hussain, appellant herein, was charged and tried before the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City who convicted the appellant for the offence under Section 302 IPC and having regard to the peculiar facts and circumstances of the case found it to be rarest of rare cases imposed death penalty on him. (2). The learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur made a reference (bearing Death Reference No. 1/2007) under Section 366 CrPC for confirmation of death sentence. The appellant also preferred appeals challenging his conviction and sentence as aforesaid. FACTS: (3). The brief facts as unraveled by the prosecution at the trial are as follows:- On October 28, 2006 at 12.30 AM, the informant Jafar @ Lotiya handed over a written report (Ex. P. 1) to the SHO Police Station Amer at the place of incident. It was inter alia stated in the report that all the riders of elephants belonging to Ballu Bhai resided in the Elephants Than of Ballu Bhai at Bharti Colony Kunda. The elephant riders included informant, Munua and Munna Mawali. Around 10.30 PM while informant was passing through Kunda Highway after taking food from Shere Punjab Hotel, he saw Satish and Sahib Hussain (appellant) talking. Sahib Hussain was telling Satish that he had dispatched Seema Bhabhi to the destination and also killed Munna Mawali, who came to save her. He also told about killing of three children residing with them. Sahib Hussain, who was wearing check shirt of clay colour and blue pant proceeded to Than of Salim Durrani, Satish told informant that Sahib Hussain had a quarrel on the day of Eid festival and it continued. The informant then went towards his Than and found Munna Mawali lying in a pool of blood on the Chabutra out side his room and inside the room lying his nephew Kalu dead. In the other room Seema, Isha, son of Lalu Chacha, and Sonu, son of Munnas uncle, were lying dead in a pool of blood. The informant narrated the incident on telephone to Ballu Bhai. Soon thereafter Satish told informant that Sahib had changed his clothes and rushed towards Highway. After some time Police, Ballu Bhai and Munna arrived. In the other room Seema, Isha, son of Lalu Chacha, and Sonu, son of Munnas uncle, were lying dead in a pool of blood. The informant narrated the incident on telephone to Ballu Bhai. Soon thereafter Satish told informant that Sahib had changed his clothes and rushed towards Highway. After some time Police, Ballu Bhai and Munna arrived. Munna Mawali was removed to the Hospital but he died on the way. On that report a case under Section 302 IPC was registered and investigation commenced. Postmortem on the dead bodies was performed. Necessary memos were drawn, statement of witnesses were recorded, the accused was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur City Jaipur. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions disposed of the case as indicated herein above. (4). It is well settled proposition that the graver the offence, the greater should be the care taken to see that neither an innocent person is convicted nor a guilty allowed to escape. Bearing this principle in mind we straightway proceed in accordance with sections 366 and 368 CrPC to examine the entire evidence independently. SUBMISSIONS ON BEHALF OF THE APPELLANT: (5). There is no ocular version of the incident and the prosecution entirely founded its case on circumstantial evidence. Learned counsel for the appellant vociferously canvassed before us that the circumstances relied upon by the prosecution have not been satisfactorily established and that in any event the circumstances said to establish against the appellant do not provide a complete chain to bring home the guilt against the appellant. The submission of learned counsel may be summarized thus:- (i) The whole case of the prosecution is based on the FIR Ex. P.1, which is itself a very doubtful document. It is pertinent to mention here that neither the complainant has disclosed any mens-rea/motive for the said offence against the appellant and it is illusive on the part of the aforesaid complainant that he has based his FIR on the basis of hearsay only. P.1, which is itself a very doubtful document. It is pertinent to mention here that neither the complainant has disclosed any mens-rea/motive for the said offence against the appellant and it is illusive on the part of the aforesaid complainant that he has based his FIR on the basis of hearsay only. The prosecution has tried to induce the factum of scuffle between the accused and his deceased sister-in-law on the festival of Eid on the question of character of deceased Seema as a motive behind murder having been committed of the deceased Seema and others, but neither it has been proved nor it can be said from any corner of view to be a sufficient reason out of which accused might have put Seema and other persons to death. Even the Investigating Officer PW.18 Raghuraj Singh in his Court statement had denied of such evidence having been found by him during investigation and even PW.1 Zafar has rebutted the fact of any scuffle between accused and deceased Seema. The prosecution has concluded in their charge sheet that the other deceased came to rescue of deceased Seema, hence, they were also attacked by accused, injured them and done to death. But the prosecution has never cared to investigate or to proved those circumstances as a reason of murder of other deceased. (ii) The whole prosecution story is a concocted one. It does not link the accused appellant with the crime at all. Even the investigating officer PW.18 Raghuraj Singh has admitted in his cross examination that nothing could be found or obtained from the spot which could have connected the accused with incident. When there is a missing connecting link of the accused with the incident, it is quite unsafe to convict the accused for the alleged offence. (iii) The informant has on one hand stated that the report Ex.P.1 was written by police at the spot. He has explained that first he has phoned to Ballu who brought the police to the spot where the report Ex.P.1 was written by police. On the other hand he has stated that he went to Shahjahanpur thereafter with police and brought the accused to the police station Amer, where the report was lodged at the Police Station Amer. He has explained that first he has phoned to Ballu who brought the police to the spot where the report Ex.P.1 was written by police. On the other hand he has stated that he went to Shahjahanpur thereafter with police and brought the accused to the police station Amer, where the report was lodged at the Police Station Amer. If it is so the second report which was lodged at the Police Station Amar has not been filed by the prosecution and it will be inferred that if that second report lodged at PS Amer would have been filed by the prosecution that would have been in favour of defence. Furthermore, PW. 18 Raghu Raj Singh investigating officer has disclosed in his statements that first of all he was informed of the incident by Umardeen on phone at 11.10 PM on 27.10.06. In that case the information given by Umardeen had been the information first in time which might have been a FIR in Police Station, Amer. But it has not been taken as such, nor Umardeen has been examined as a witness. Thus there is absence of an FIR. Fourthly, according to Zafar he has first informed by phone to Ballu who brought police to spot but information recorded on the telephonic report of Ballu has not been filed or proved. Fifthly according to PW.2 Ballu the report Ex. P.1 was written at police station, Amer and not at the spot. In that case recording of FIR becomes doubtful and the prosecution has failed even to prove as to which the FIR being first in time and the case becomes based on investigation without an FIR as the original FIR. As the original FIR has been suppressed the prosecution case becomes suspicious. The prosecution has not even made it clear as to why they have not enlisted Umardeen as a prosecution witness who could have been an important witness to give first version of the case. (iv) There are so many infirmities in the prosecution story which are full of contradictions the story cannot be believed upon. As per the prosecution story the accused was handed over by police station Shahajahnpur to ASI Vikram Singh of Police Station Amer at 5.15 AM. On 28.10.06 but according to the investigating officer the accused was presented before him at 9.00 am. As per the prosecution story the accused was handed over by police station Shahajahnpur to ASI Vikram Singh of Police Station Amer at 5.15 AM. On 28.10.06 but according to the investigating officer the accused was presented before him at 9.00 am. So the question unanswered remains that where the accused was kept by ASI Vikram Singh from 5.15 am to 9.00 am for four hours and it cannot be ruled out that there might have been planting of connecting evidence for concoction being bringing home to the guilt of the accused. Even Vikram Singh, ASI has not been examined to prove the circumstance of the late production of the accused to the investigating officer. There is no any confirmatory or conclusive evidence to bring home conviction to the accused. (v) There are contradictions with regard to the place where the accused has first of all disclosed about the incident to Satish. In the FIR, the informant Zafar has stated that the accused has stated about the incident at the highways after returning from dinner whereas in the Court statements PW.1 Zafar has stated that the same was disclosed at his (Zafar) house. But PW.4 Satish has inducted a third place, that Zafar came to his house i.e. Satishs house where the accused was also present telling about the incident and heard the same. Thereafter Zafar has come again and asked him as to what the accused was telling to him. It means there are three different places where the accused is said to have stated about the incident. The prosecution has miserably failed to establish the actual place, where the so called extra judicial confession was made and to whom made. (vi) From the statements of witnesses and evidence produced by prosecution the place where Munna Mawali was found lying injured is also ascertained. In his FIR Zafar has stated that Munna Mawali was found to have been lying on the Chabutra in front of his room. While in his Court statements he says that Munna Mawali was lying inside his room. (vii) The prosecution story about recovery of the accused is also doubtful. Informant Zafar PW.1 has, on one hand says that when the accused was caught by police he (Zafar) did not go to Shahjahanpur with police in the night. At that time he was at Kunda at his residence whole the night. (vii) The prosecution story about recovery of the accused is also doubtful. Informant Zafar PW.1 has, on one hand says that when the accused was caught by police he (Zafar) did not go to Shahjahanpur with police in the night. At that time he was at Kunda at his residence whole the night. He was informed by Ballu in the next morning that the accused was caught by police at Shahjahanpur. He went to police only in the morning at 6.00 am while on the other hand, he in the same court statements, has stated that he actually went to Shahjahanpur with the police where the accused was caught at 30 or 40 kms. Away from Jaipur. (viii) There are so many infirmities in the statements of the witnesses such as PW. 16 Murari has stated that the accused was caught by Police Station, Shahjahanpur at 2.20 am but according to the same witness the bus in which accused was traveling was stopped at 3.20 am and such as PW.1 Zafar has stated that he did not tell anything about incident to Ballu, if it is so how police came at the spot with Ballu, where he is reported to have handed over the first information report Ex.P.1 to the investigating officer. (ix) The prosecution story suffers from improbabilities such as on one hand PW.1 Zafar said that after seeing the spot he reached to Satish after 10 or 20 minutes, then he went to phone Ballu. In such circumstances, how it could have been possible that after disclosure of the incident by accused to Satish, the police came only within 15 or 20 minutes as per statements of PW.1 Zafar. It is quite improbable. (x) There is a clear cut concoction with regard to weapon of offence as well as its recovery. PW. 2 Ballu and PW.17 Murari Lal have seen the weapon axe, at the place of incident at the first sight after the incident, in the night itself, when they first visited the place of occurrence, they why the investigation has committed a drama of obtaining information under Section 27 of the Evidence Act from the accused and seizure of the weapon at his instance afterwards at 3.30 pm. On 28.10.2006. In presence of PW.3, Abdul Majeed the seizure memo Ex. On 28.10.2006. In presence of PW.3, Abdul Majeed the seizure memo Ex. P.10 is said to have been prepared, while in the cross examination the same witness says he has not seen the house of accused nor he has even gone to the house of accused from where the weapon is said to have been seized. When the IO has found the weapon of offence, then and there, at the spot at 00.15 am it is not clear as to why he has not examined it immediately for the presence of blood stains etc. why it was not seized at the spot immediately, which evidence could have led to actual culprit. Why it was seized on the next day after 17 hours from storage of fodder and also it is not clear as to where the weapon remained for such a longer period and who brought the weapon to the storage. The place from where the axe is said to have been recovered is stated to be an open place to the access of anybody and no body was stopped from going there, hence, it can not be said that the recovered axe was the same weapon which was used for crime. It could have been planted by anybody else. This makes the prosecution story quite false as regards the weapon which was used, its recovery and presence of any stains etc. and does not link the weapon or clothes with the crime or with accused. (xi) Recovery of chappals of the accused alleged to have made in the police station Amer also does not repose confidence in prosecution story. It is stated that the chappals were seized from the possession of accused at 10.30 am. On the next day while he was arrested at Police Station, Amer after 12 hours of the incident. First of all it is improbable in the circumstances that the accused would change the dress but would not change his chappals. Second it is impossible that even after traveling 80 km on foot, in bus and Police Jeeps and remaining in Jails at Shahjahanpur Police Station and at Amer Police Station, blood stains would remain over and below the chappals. Second it is impossible that even after traveling 80 km on foot, in bus and Police Jeeps and remaining in Jails at Shahjahanpur Police Station and at Amer Police Station, blood stains would remain over and below the chappals. The accused remain with police station Shahajahnpur from 2.20 am to 5.15 am on 28.10.06 and it is not clear, why the chappals of accused were not seized by Police, Station Amar immediately at 5.15 am if there were blood stains on chappals of accused. When there were no bloodstains on chappals at police station Shahjahanpur at about 3.20 am how could police station Amer found the same in the above circumstances at 10.30 am on next day. Certainly, it was a planted, plotted and concocted evidence on behalf of prosecution as was in case of axe, which was planted in fodder storage. Even if found blood stained, such sort of evidence cannot link the accused with the crime. (xii) There are infirmities with regard to the hearing by Zafar of the disclosure statement made by accused to Satish. PW.1 Zafar says in the FIR that he has overheard disclosing accused the incident to Satish at the highways whereas PW.4 Satish says that as soon as Zafar came to his house, accused went to his room and set to highways after changing his clothes and afterwards Zafar asked him what was said by the accused to him it means the prosecution story is doubtful about hearing of statements by Zafar. Had the informant overheard the matter at the highways why he would gone to Satishs house and asked him what the accused said to him. Hence the story about extra judicial confession by accused to Satish or heard by Zafar becomes unreliable. (xiii) The prosecution has miserably failed to prove beyond reasonable doubt that the accused has caused intentional death or causing death of anybody with knowledge and in absence of any evidence as regards motive for committing murder, it is quite unsafe to convict the appellant as above and punish him as such. The circumstantial evidence produced by prosecution does not suggest deliberate or intentional act of committing murder or even culpable homicide. (xiv) This case is said to have been based on the extra judicial confession made by accused to Satish PW.4 and the so called confession has been overheard by Zafar informant. The circumstantial evidence produced by prosecution does not suggest deliberate or intentional act of committing murder or even culpable homicide. (xiv) This case is said to have been based on the extra judicial confession made by accused to Satish PW.4 and the so called confession has been overheard by Zafar informant. Such as evidence, if believed, is a week type of evidence. Accused had no reason to go to PW.4 Satish and to confess guilt by reposing confidence in him. The learned trial Court before relying upon the so called extra judicial confession, has erred in not satisfying itself that there was no existence of strong corroborative circumstances nor any of such circumstances which necessitated the accused to disclose to Satish the facts of having committed the crime and that it would have been voluntary. The learned trial Court was legally required to see the probability as to whether the accused was in a position to make such statements and to look into the circumstances to find out whether such confession was not inspired by any improper or collateral consideration of circumvention of law, suggesting it may not be true. As a matter of caution the Court must have required some material corroboration to an extra judicial statement. If that other piece of evidence is reliable, it can be safely acted upon. The facts and circumstances of this case do not suggest that the so called confession could have been possible or true. There is no reason as to why the accused would make an extra judicial confession to Satish. Satish PW.4 was not related nor has affinity with the accused in any manner nor he was a person in authority or could render assistance to him. Hence his testimony is not believable. At the most if the accused felt it to disclose the incident, then he would have disclosed the same, its circumstances and reasons to his elder brother Munna but the prosecution has not cared to, nor thought it proper to examine Munna as a witness whose testimony would have been important being husband of deceased Seema and might have been proper in finding circumstances in which the incident took place. Therefore suppression of material evidence by prosecution makes the case more doubtful and the prosecution has not at all established evidence of extra judicial confession. Hence no reliance can be placed on whole of prosecution evidence. Therefore suppression of material evidence by prosecution makes the case more doubtful and the prosecution has not at all established evidence of extra judicial confession. Hence no reliance can be placed on whole of prosecution evidence. The learned trial court has erred in not considering above aspect of the case. (xv) There are so many discrepancies in the prosecution story which may confer as a benefit in favour of the present appellant as per scheduled principles of criminal jurisprudence as settled by Honble Apex Court and this Court also. (xvi) The place of incident is said to have been surrounded by many households as per investigating officer PW.16 Raghu Raj Singh. Under the circumstances it was quite improbable that no hue and cry has been made by anybody in the neighbouring and the prosecution has not enlisted nor examined any neighbouring witness, when it was a peak time of presence of neighbouring witnesses. The learned trial Court has seriously erred in not considering the circumstance and convicting the accused appellant despite no sufficient evidence or withholding of material evidence. (xvii) In the present circumstances of recovery of weapon axe and clothes and chappals etc. as discussed above, FSL reports and DNA report dated 8.10.07 do not repose confidence in the prosecution and cannot become a basis for conviction of accused. The recoveries failed to connect the so called samples, shown to have been collected from the articles of accused and got thereafter examined. Merely because of finding biological fluid of mix-origin on the weapon cannot connect the accused with the crime in the circumstances that the weapon was not seized from the spot even if found there just after incident and later on, it is planting cannot be ruled out. The present appellant has every right to get benefit of doubt on that score. (xviii) The learned trial Court has erred in not considering the facts and circumstances of the present case which are factually in favour of the appellant and has erroneously recorded conviction of the appellant on the basis of meager circumstantial evidence which could not be said to be in accordance with law. A suspicion however strong cannot take place of evidence. A suspicion however strong cannot take place of evidence. (xix) The findings arrived at by learned trial Court are vitiated as being based on misleading, mis-reading and non- considering of material evidence which is in support of the appellant as well as the finding is based on conjectures and surmises. When the entire falsehood cannot be separated from truth in such a case conviction is unsafe to be recorded. STANDARD OF PROOF : (6). The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decision of the Apex Court. According to the standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. (7). Keeping these principles in mind we shall now examine the various circumstances said to be appearing against the appellant and at the same time consider the contentions advances by the learned counsel for the appellant referred to above. HOMICIDAL DEATH: (8). Death of Seema, Munna Mawali, Kalu, Isha and Sonu was undeniably homicidal in nature. As per post mortem report (Ex. P. 48) following ante mortem injuries were found on the dead body of Seems- (1) Incised would starting from left orbit, going down to mandible and then turning towards mouth, involving lower lip and reaching in right side of mouth. It is 3 cm. Wide and 5 cm. deep damaging left eye, it orbit left cheek, muscles of lt. Cheek, lower lip, lower jaw. Teeth of lower jaw part of upper jaw, some part of chin. Total length 20 cm. (2) Incised wound 7 cm. x 4 cm. 5 cm. On neck below lateral side of Rt. Side cutting Rt. It is 3 cm. Wide and 5 cm. deep damaging left eye, it orbit left cheek, muscles of lt. Cheek, lower lip, lower jaw. Teeth of lower jaw part of upper jaw, some part of chin. Total length 20 cm. (2) Incised wound 7 cm. x 4 cm. 5 cm. On neck below lateral side of Rt. Side cutting Rt. Carotid artery and its jugular vein. In the opinion of medical board the cause of death was hemorrhagic shock caused by extensive injuries to face and neck. As per Postmortem report of Munna Mawali (Ex. P. 47) following injuries were antermortem:- (1) Incised wound clotted blow 5 cm. 2 cm. x muscle deep on chin. (2) Incised wound with clotted blood 7 cm. x 2 cm. x bone deep left temporal region. (3) Incised wound on right cheek 10 cm. x 3 cm. x 5 cm. Bone deep. Entering right mandible and zygomatic bone (from corner of Rt. Eye to lobule of Rt. ear (4) Swelling of right upper arm and humerus. (5) Abrasion and clotted blood 2 cm. x 2 cm. Right upper arm. (6) Incised wound 4 cm. x 1 cm. x muscle deep - Right shoulder. (7) Incised wound 5 cm. x 2 cm. x muscle deep on left forearm from lat. side with clotted blood. In the opinion of medical board the cause of death was hemorrhagic shock caused by multiple injuries. As per Postmortem report of deceased Isha (Ex. P. 46) following injuries were found- (1) Incised- transverse wound 10 cm. x 3 cm./2 cm. On neck on right side left from angle of mandible to post. Mid line of neck. Clotted blood present. (2) Incised wound 6 cm. x 2 cm. x 3cm. Situated 2 cm. Below wound No. 1 cutting trachea and major blood vessels (carotid). Starting from mid line of neck front to post. Upto angle of mandible. Clotted blood present. (3) Incised would with clotted blood 6 cm. x 2 cm. x 3 cm. On right clavicular region. Upper and starts from neck reaching to shoulder. (4) Incised wound 7 cm. x 3 cm. x 2 cm. On left side of cheek. Clotted blood present. (5) Swelling present in right forearm upper 1/3rd closed fracture. In the opinion of medical board the cause of death was multiple injuries leading to severe hemorrhage leading to hemorrhagic shock. Upper and starts from neck reaching to shoulder. (4) Incised wound 7 cm. x 3 cm. x 2 cm. On left side of cheek. Clotted blood present. (5) Swelling present in right forearm upper 1/3rd closed fracture. In the opinion of medical board the cause of death was multiple injuries leading to severe hemorrhage leading to hemorrhagic shock. As per postmortem report of Kalu (Ex. P. 45) following antermortem injuries were found- (1) Incised wound with clotted blood 6 cm x 4 cm x brain deep fracturing right occipital bone and cutting muscle and reaching and cutting part of brain. (2) Incised wound clotted blood 4 cm x 1 cm x 3 cm 1 cm below injury No.1. (3) Incised wound 3 cm x 1 cm x 1 cm across the right ear, cutting pinna of right ear clotted blood. (4) Incised wound with clotted blood 5 cm x 2 cm x bone deep causing fracture of radius & ulna in middle of forearm of left side. (5) Incised wound with clotted blood 1-1/2 cm x 1/2 cm x 1/2 cm on first finger of right hand. (6) Incised wound with 1-1/2 cm x 1cm x 1/2 cm on base of thumb of Rt. hand. In the opinion of medical board the cause of death was injury to brain and hemorrhagic shock caused by multiple injuries. As per postmortem report of Sonu (Ex. P. 49) following antermortem injuries were found:- (1) Incised wound with clotted blood 4 cm x 3 cm x 3 cm on right side of neck. (2) Verticle Incised wound with clotted blood in right occipital region 5 cm x 3 cm x 4cm cutting right occipital bone membranes of brain part of brain underneath. (3) Incised wound in left fronto parietal region 10 cm x 3 cm afore mentioned deep. In thie opinion of medical board the cause of death was injury to brain and hemorrhagic shock as a result multiple injuries. PRESENCE OF APPELLANT NEAR ABOUT THE PLACE OF OCCURRENCE: (9). Jafar (PW. 1) in his deposition stated that he used to reside with Ballu Bhai in Bharti Colony Kunda, Amer. Ballu Bhai had many elephants and he used to drive one of the elephants as elephant rider Munna and Munna Mawali were also elephant riders. Around 10.30 PM while he was going to his home to sleep he had seen appellant talking with Satish. Ballu Bhai had many elephants and he used to drive one of the elephants as elephant rider Munna and Munna Mawali were also elephant riders. Around 10.30 PM while he was going to his home to sleep he had seen appellant talking with Satish. When he reached to his house he saw Munna Mawali lying out side his room in a pool of blood. Inside the rooms Seema and children were lying dead. Satish (PW. 4) corroborated the testimony of Jafar and deposed that he used to drive the elephant of Munna Bhai as elephant rider and resided in the house of Munna Bhai. Rehmet Ali and the appellant also resided in that house. Seema, Bhabhi of appellant, resided at some distance in the house of Ballu Bhai. At about 10.30 PM appellant came to him (Satish) and had a talk about the incident. We see no reason to disbelieve the evidence of these witnesses. The prosecution is thus able to establish that the appellant was present near about the place where the incident occurred. EXTRA JUDICIAL CONFESSION: (10). Confession may be divided into `Judicial and `Extra Judicial. Judicial Confessions are those which are made before the Magistrate or in court, in the due course of legal proceedings and it is essential that they be made of the free will of the party and with full knowledge of the nature and consequences of the confession." Extra Judicial confessions are those which are made by the party elsewhere then before a Magistrate or in court. This term embracing not only express confessions of crime, but all those admissions and acts of the accused from which guilt may be implied. (11). Extra Judicial Confession may properly be made to any person or body of persons. It is not even necessary that the statement should have been addressed to any definite individual. It may have taken the form of a prayer. An extra judicial confession to be made to one who is not a person in authority and which is free from any suspicion as to its voluntary character and has also a ring of truth in it is admissible in evidence and deserves to be acted upon. Extra Judicial Confession made before stock witness who has casually knowing the accused is not admissible. (12). Extra Judicial Confession made before stock witness who has casually knowing the accused is not admissible. (12). In the United States, the prisoners confession, when the Corpus delicti is not otherwise proved has been held insufficient to warrant his conviction. (13). From the stand point of reason a confession may be subject to grave informative considerations, among others that it is extremely improbable that a person should accuse himself of a serious crime. It may have been made from some false hope of benefit or fear of injury and still be false. The mind of criminal may be excited or diseased or morbid. The general rule is, that each confession should be weighted by its own circumstance. The evidence of extra-judicial confession, though a weak type of evidence, can form the basis for conviction if the confession made by the accused is voluntary, true and trustworthy. It can be acted upon if the evidence of the person, before whom the extra judicial confession has been made by the accused, inspires confidence. (14). In the case on hand the evidence of Satish (PW. 4) appears to us reliable and trustworty. It inspires confidence. The evidence of Satish gets corroboration from the testimony of Jafar (PW. 1) Satish and the appellant were friendly with each other. Satish was also aware of the fact of quarrel of appellant with his Bhabhi. Confession made by the appellant appears to us as voluntary, true and trustworthy. Satish was the friend of appellant and the appellant resided with Satish in one Than. Testimony of Satish and Jafar could not be shattered in cross examination. Since evidence of Satish and Jafar inspire confidence, the confession made by the appellant can be acted upon as one of the chain of circumstantial evidence. RECOVERY OF INCRIMINATING ARTICLES: (15). The next incriminating circumstance relied upon by the prosecution against the appellant was recovery of incriminating articles at the instance of appellant. The appellant was arrested at 10.30 AM on October 28, 2006 vide arrest memo Ex. P. 22. On the basis of his disclosure statement (Ex. P. 56) axe got recovered vide recovery memo Ex. P. 10. A look at the said memo reveals that blade of axe was found stained with blood. At 3.45 PM on October 28, 2006 the appellant volunteered that clothes wore by him were concealed in a room. P. 22. On the basis of his disclosure statement (Ex. P. 56) axe got recovered vide recovery memo Ex. P. 10. A look at the said memo reveals that blade of axe was found stained with blood. At 3.45 PM on October 28, 2006 the appellant volunteered that clothes wore by him were concealed in a room. The information was recorded in the memo Ex. P. 57,. On the basis of disclosure statement pant and shirt stained with blood got recovered vide recovery memo Ex. P.11. The clothes were concealed in a chamber under the floor of a room. These articles were recovered in the presence of Mohd. Salim (PW. 2) and Abdul Majid (PW. 3). At the time of arrest the appellant was wearing Chappals that were stained with blood and dust. The chappals were seized vide recovery memo Ex. P.8 at 10.30 Am on October 28, 2006. (16). Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. (17). Section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby than the information was true and accordingly can be safely allowed to be given in evidence. It is not correct to presume that information given by the accused under Section 27 is compelled testimony, so as to attract Article 20(3) of the Constitution. (18). It is not correct to presume that information given by the accused under Section 27 is compelled testimony, so as to attract Article 20(3) of the Constitution. (18). In Prakash Chand vs. State (Delhi Admn.) ( AIR 1979 SC 400 ) the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27. (19). In Rammi vs. State of MP (1999) 8 SCC 649 , the Apex Court held thus:- (Paras 11 & 12) "Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons. "True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused." (20). In Himachal Pradesh Administration vs. Om Prakash (1972) 1 SCC 249 the Apex court interpreted Section 27 of Evidence Act thus:- "A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused." (21). In Ghanshyam Das vs. State of Assam (2005) 13 SCC 387 the Supreme Court held that evidence regarding pointing the place where weapon was thrown and its recovery can be looked into to throw light on the conduct of accused under Section 8. It was observed as under:- (Para 5) "Another incriminating which corroborates the case of the prosecution is that the appellant led the IO PW.12 to Kharbhanga riverside and pointed out the place where he had thrown away the Khukri. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a driver. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a driver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW.12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW.12 and PW.6 to the effect that the accused led them to the spot and pointed out the place where the Khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under Section 8 of the Evidence Act." (22). It is well settled that the action of Investigating Officer cannot be approached with initial distrust. The investigating Officer had no enmity with the appellant. In this case independent motbirs has supported the recovery. Even if independent person fails to support the recovery of incriminating articles at the instance of accused, it cannot be presumed that recovery is untrustworthy. The Supreme Court in State Govt. of NCT Delhi vs. Sunil (2001) 1 SCC 652 = (RLW 2001(1) SC 3) indicated in para 21 thus:- "It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions." (23). The Motbirs of recovery of incriminating articles viz. Mohd. Salim and Abdul Majid although related to the deceased, we see no reason to disbelieve them. ABSCONDING: (24). Although the act of absconding, even if proved, is normally considered somewhat as weak link in the chain of circumstances, utilised for establishing the guilt of appellant. The Motbirs of recovery of incriminating articles viz. Mohd. Salim and Abdul Majid although related to the deceased, we see no reason to disbelieve them. ABSCONDING: (24). Although the act of absconding, even if proved, is normally considered somewhat as weak link in the chain of circumstances, utilised for establishing the guilt of appellant. However in Jose vs. State of Kerala ( 1984 CrLJ 748 ) it was indicated that absconding from the scene would establish the guilt of the accused and rule out hypothesis of innocence. In the facts and circumstances of this case sudden absconding from the scene without any reason and the fact of concealing the identity, has established the guilt of the appellant and rule out hypothesis of innocence. Immediately after the incident the appellant boarded the bus and left village Kunda for Delhi. But he was nabbed at 2.20 AM on October 28, 2006 at Old Barrier Shahjahanpur. Murari Lal (PW. 16) deposed that on October 28, 2006 at 2 AM CO Behror informed him that one Sahib Hussain had absconded after committing murders of five persons. He recorded the information in Rojnamcha Ex. P. 51. Around 2.20 AM he got a bus stopped at Shahjahanpur Barrier. The bus was proceeding from Jaipur to Delhi on National Highway No. 8. The appellant was sitting in the bus. On being asked about his identity he wrongly gave his name as Zakir Hussain. On being interrogated he disclosed his correct name. He was handed over to Police Station Amer. MOTIVE: (25). The prosecution is also able to establish motive of appellant behind the crime. From the evidence of informant Jafar (PW.1) it is proved that the appellant had a quarrel with deceased seema on the day of Eid and the quarrel continued. Statement of Jafar gets corroboration from the evidence of Satish, who deposed that on the day of Eid appellant and deceased Seema had a quarrel. Therefore this possibility cannot be ruled out that while the appellant was inflicting blows with axe on the person of Seema, Munna Mawali, Kalu, Isha and Sonu arrived and they were also done to death. (26). Having analysed the evidence adduced at the trial we find no merit in the submissions of learned counsel for the appellant. Therefore this possibility cannot be ruled out that while the appellant was inflicting blows with axe on the person of Seema, Munna Mawali, Kalu, Isha and Sonu arrived and they were also done to death. (26). Having analysed the evidence adduced at the trial we find no merit in the submissions of learned counsel for the appellant. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances to established are consistent only with the guilt of appellant and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant. The infirmities pointed out by the learned counsel for the appellant in the prosecution evidence do not go to the root of the case and substratum of the prosecution case remain intact and it could not be uprooted. FSL reports and DNA report connect the blood group of deceased with the blood group found on Chappals, pant, shirt and axe. It cannot be said that FIR was deliberately withheld by the prosecution. Non examination of Munna, the husband of deceased Seema is not fatal to the prosecution case. If the appellant was produced at Police Station Amer at 5 AM and his arrest was shown at 10.30 AM it also does not affect the foundation of the case. Possibility that the arrest could not be made instantly because the appellant gave his fake name as Zakir Hussain, cannot be ruled out. Since the police had no enmity with the appellant, we do not see any merit in the contention that the appellant had been falsely implicated in the case. In the ultimate analysis we find that the appellant has been rightly convicted by the learned trial Judge. (27). That takes us to the question of sentence. Section 302 IPC beyond stating that the sentence for murder is either death or imprisonment for life, does not elaborate any further on what are the circumstances under which death sentence or lesser sentence could be imposed. Their Lordships of the Supreme Court in Bachan Singh vs. State of Punjab ( AIR 1980 SC 898 ) while being reluctant to categorise or list all aggravating circumstances, held that sentence of death must be imposed only in the rarest of rare case. Their Lordships of the Supreme Court in Bachan Singh vs. State of Punjab ( AIR 1980 SC 898 ) while being reluctant to categorise or list all aggravating circumstances, held that sentence of death must be imposed only in the rarest of rare case. It is now well settled that in exercising its discretion the court may take into consideration as mitigating, on the basis of which the lesser punishment of imprisonment for life may be imposed:- (i) That the offence was committed under the inference of extreme or emotional disturbance; (ii) If the accused is young or old, he shall not be sentenced to death; (iii) The probability that the accused would not commit communal acts of violence as would constitute a continuing threat to society; (iv) The probability that the accused can be reformed and rehabilitated; (v) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence; (vi) That the accused acted under the duress of domination of another persons. (vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. (28). In Shri Bhagwan vs. State of Rajasthan (2001 Cr.L.J. 2925) = (RLW 2001 (2) SC 273) five persons of a family were battered to death without mercy by a young culprit aged about 20 years. Their Lordships of the Supreme Court, commuted the death sentence imposed upon the accused into sentence of imprisonment of life and indicated that the accused shall not be released from the prison unless he has served out at least 20 years of imprisonment including the period already undergone by him. (29). In Reddy Sampath Kumar vs. State of AP (2005) 7 SCC 603 , a greedy son-in-law with the intention of grabbing the property of his father-in-law, committed the death of his father-in-law, mother-in-law and their three minor children. Honble Supreme Court directed that the ends of justice would warrant that the appellant should be in jail in terms of section 57 of the Penal Code and shall not get the benefit of any remission either granted by the state or by the Government of India on any auspicious occasion. (30). In the instant case as already noticed, the appellant caused death of his brother and bhabhi and three minor children. (31). (30). In the instant case as already noticed, the appellant caused death of his brother and bhabhi and three minor children. (31). This act of unparalleled evil and barbarity of appellant can not be looked with equanimity. The crime committed by him tends to destroy ones faith in all that is good in life. But looking to the young age of appellant we do not think that this case is to be one of the rarest of rare cases warranting death sentence. Hence, even though we commute the death penalty, yet we are of the view that the punishment should have deterrent effect as well as no further chance to the appellant for relapsing into the crime and becoming danger to the society. (32). In a similar situation in Shri Bhagwan vs. State of Rajasthan (2001 Cr.L.J. 2925) (supra) where five persons of a family were battered to death without mercy by a young culprit aged about 20 years. Their Lordships of the Supreme Court, commuted the death sentence imposed upon the accused into sentence of imprisonment of life and indicated that the accused shall not be released from the prison unless he has served out at least 20 years of imprisonment including the period already undergone by him. (33). Placing reliance on the ratio indicated in Shri Bhagwan vs. State of Rajasthan (supra) we uphold the conviction of appellant Sahib Hussain @ Sahib Jan under Section 302 IPC but commute the death sentence imposed upon him and direct that he shall undergo the sentence of imprisonment of life. We further direct that the appellant shall not be released from the prison unless he served out at least 20 (twenty) years of imprisonment including the period already undergone by him. He shall not get the benefit of any remission either granted by the State or by the Government of India on any auspicious occasion. (34). The reference is answered accordingly. The appeals filed by appellant Sahib Hussain @ Sahib Jan stand disposed of as indicated above.