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2008 DIGILAW 817 (ORI)

STATE OF ORISSA v. KHAGESWAR ` SANTOSH BEHERA

2008-09-10

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. Learned Sessions Judge, Keonjhar found the accused Appellant guilty of the offence under Sections 302 and 201, I.P.C. on the ground that he caused homicidal death of his wife Kuni and three children namely Hanati, Ramesh and Bubu. Finding the accused guilty of such offences, learned Sessions Judge awarded death penalty against the accused and in view of the provision in Section 366 of the Criminal Procedure Code, 1973 (in short 'the Code'), referred the matter to the High Court for confirmation of the death sentence. Accordingly, Death Sentence Reference No. 1 of 2006 has been registered in this Court. Challenging to that order of conviction and sentence, accused has preferred an appeal from jail and that has been registered as Jail Criminal Appeal No. 27 of 2006. On service of notice of Death Sentence Reference, accused through counsel did not file any written submission but opted to argue as against that sentence. Thus, the Death Sentence Reference and the Jail Criminal Appeal having been heard analogously are disposed of by this Judgment, which shall abide the result of both the cases. 2. According to the case of the prosecution, accused Khageswar ' Santosh Behera after being released on bail from the allegation of committing rape and murder of another woman, came to the village of the deceased Kuni and married her. Through their wedlock the above-named three children were born. It is the allegation of the prosecution that accused has the temperament and tendency of being attracted towards other women, whether married or otherwise, and for that more than once he had to face opposition. About a fortnight before the date of occurrence he showed indecent behaviour to Sanju Perei (P.W. 4), a married woman, and prior to that incident he had also expressed his mind before her to marry her after killing his wife and children. 3. According to the further case of the prosecution, on 13.06.2002 the accused came to the village and stayed in the house of his mother-in-law and there he expressed his desire to take his wife and children with him. The mother-in-law Jaitri Rout (P.W.1) and the deceased Kuni agreed to that. 3. According to the further case of the prosecution, on 13.06.2002 the accused came to the village and stayed in the house of his mother-in-law and there he expressed his desire to take his wife and children with him. The mother-in-law Jaitri Rout (P.W.1) and the deceased Kuni agreed to that. Then accused went away and on the following day, on the request of P.W.1, Niranjan Majhi (P.W.3) accompanied and escorted the deceased persons and, as agreed upon earlier, left them in the custody of the accused at Panikoili Chhak (square). On 17.06.2002 dead body of Kuni was found in a Nala near Suanpada weekly market and on the next day the dead bodies of three children were discovered. The dead bodies of the elder two children were found in a well, whereas the dead body of the youngest child was found in a 'Nala'. On discovery of the dead bodies of the deceased Kuni though an U.D. Case was registered, but subsequently on the F.I.R. (Ext.3) relying to the cognizable case of homicidal death, P.S. Case No. 74 of 2002 was registered in Ramchandrapur Police Station corresponding to G.R. Case No. 249 of 2002 of the Court of S.D.J.M., Anandpur. According to the further case of the prosecution, by the date of occurrence accused was serving as a labourer under one Khageswar Senapati (P.W.5) and after committing the alleged crime he came and stayed in the house of P.W.5 till the date he was arrested by the Investigating Officer. 4. In course of the investigation the Investigating Officer followed routine manner of investigation relating to inquest, dead body challan, obtaining opinion report, post mortem report, visit to the spots, seizure of incriminating materials, search and arrest of the accused and requisition for his medical examination, forwarding of incriminating materials to the State Forensic Science & Laboratory for specialized opinion, etc. and on completion of the investigation submitted charge sheet against the accused. After submission of the charge sheet and commitment of the case to the Court of Sessions, a full fledged trial was taken up, which concluded with the Judgment delivered on 01.02.2005. Learned Sessions Judge recorded the conviction for committing murder of all the deceased persons and awarded death sentence to the accused. When the matter came up before this Court in the shape of Death Sentence Reference No. 2 of 2005 and Jail Crl. Learned Sessions Judge recorded the conviction for committing murder of all the deceased persons and awarded death sentence to the accused. When the matter came up before this Court in the shape of Death Sentence Reference No. 2 of 2005 and Jail Crl. Appeal No. 21 of 2005, this Court found defect in framing of the charge in as much as charge was framed only with the allegation of murder of deceased Kuni, but the conviction was recorded for death of the mother and three children and accordingly death sentence was awarded. On 13.01.2006 this Court, therefore, set aside that order of conviction and remanded the case for framing of charge afresh and for conducting de novo trial. 5. In course of the de novo trial prosecution relied on the same set of oral and documentary evidence. Similarly, same set of documentary evidences were marked Exts. 1 to 26. The material objects were however reduced to four and that includes the wearing apparels of deceased Kuni - M.Os, I and II, a bag - M.O.-III and 'Lungi' of the accused - M.O. IV. Accused examined himself as D.W.1 in support of his plea of denial and innocence. He did not adduce any documentary evidence. 6. Referring to the evidence of Dr. Parsuram Sahu (P.W.9) and the post mortem reports, Ext.23 (relating to deceased Kuni Behera), Ext.24 (relating to deceased Ramesh Behera), Ext.25 (relating to deceased Hanati Behera) and Ext.26 (relating to deceased Babu Behera) besides the Inquest Reports, Exts. 1, 4, 5 and 6, learned Sessions Judge held that prosecution has been able to prove that all the persons suffered homicidal death. Being conscious of absence of eye-witnesses to the occurrence and the circumstantial evidence which was put forward by the prosecution in proof of the charge against the accused, learned Sessions Judge took note of several citations, viz., Dhananjay Chatterjee alias Dhana Vs. State of W.B. Gade Lakshmi Mangraju @ Ramesh Vs. State of Andhra Pradesh Hanumant Govinda v. State of Madhya Pradesh AIR 1953 (SC) 343 and State of U.P. v. Satish 2005 (1) Crimes (SC) 146. Learned Sessions Judge formulated principle that prosecution is required to prove the motive of the accused, the theory of last seen, abnormal conduct of the accused and false answer given by him as the relevant circumstantial evidence to complete the chain of circumstances unfailingly proving guilty of the accused. Learned Sessions Judge formulated principle that prosecution is required to prove the motive of the accused, the theory of last seen, abnormal conduct of the accused and false answer given by him as the relevant circumstantial evidence to complete the chain of circumstances unfailingly proving guilty of the accused. Accordingly he assessed the evidence of P.W.1 (mother of deceased Kuni), who stated about the accused approaching her to take away his wife and children and in that respect Niranjan (P.W.3) being called to escort them on the following day and she also identified the wearing apparels of the deceased and the bag (M.O.-III) taken by the accused and the Lungi (M.O.-IV) being belonging to the accused. She also stated about the bad character and antecedents thereof of the accused. Deceased Kuni was the sister of P.W.2 Suni Rout and P.W.2 also stated about the bad character of the accused and about his attempt to commit rape on the wife of P.W.2 and in another incident committing similar indecent act with P.W.4 Sanju Perei. He also stated about his presence at the time of inquest and seizure. P.W.3 Niranjan Majhi is the brother-in-law of the accused in as much as that witness has married to the sister of the accused. He speaks about the request of the accused and P.W.1 to escort Kuni and the children to be left in the custody of the accused at Panikoili Chhak and accordingly on 14.06.2002 he left the deceased persons in the custody of the accused at Panikoili Chhak. P.W.4 is the other lady who stated that accused had given out to her that he wanted to marry her and for that he intended to kill his wife and children and that a fortnight before the date of occurrence he had also made an attempt of rape on her, but the villagers came and rescued her. 7. P.W.5 belongs to village Nahurani Posi, i.e., other than the village of the deceased persons. He stated in his evidence that the accused obtained his employment and disclosed his identity as Santosh Behera and once the accused had come with his wife and daughter. On the first day of 'Raja' festival accused took money from him (P.W.5) and took leave to bring his family and two days after 'Raja' festival, i.e., on 17.06.2002 accused returned to his house alone and exhibited abnormal conduct of remaining quiet. On the first day of 'Raja' festival accused took money from him (P.W.5) and took leave to bring his family and two days after 'Raja' festival, i.e., on 17.06.2002 accused returned to his house alone and exhibited abnormal conduct of remaining quiet. On the information from his wife, P.W.5 provided some food accused took some food thereof and threw the rest of the rice. According to P.W.5, "The accused behaved abnormally for seven days and used to sit on lonely place. When asked the accused as to why he had not brought his family, the accused told that his wife had come with him, but went away from the way after quarrelling with him." 8. P.W.6, the Investigating Officer narrated about the manner in which he conducted the investigation starting from discovery of the dead body one after the other till the time of submission of charge-sheet. He also proved a part of the investigation, which was conducted by A.S.I. Umakanta Pradhan in the U.D. Case No. 3 of 2002. That case was registered immediately after discovery of the dead body of deceased Kuni. 9. Referring to all such evidence vis-?-vis the denial plea in the deposition of D.W.1, learned Sessions Judge recorded findings that prosecution has been able to prove the last seen theory and even if the prosecution has not been able to fix the exact time of death of each of the deceased, then also the conduct of the accused in not explaining the whereabouts of the deceased persons and behaving in the above indicated manner, as stated by P.W.5, it is made out on record that accused committed murder of his wife and children. In that respect also he took note of the evidence of P.W.6 - Chaturbhuja Mahakud and P.W. 7 - Biswanath Mishra, each of whom stated that they had seen the accused moving with the deceased persons. Recording such findings learned Sessions Judge also held that statement of P.W.4 indicates the motive. Accordingly he held the accused guilty of the offence u/s 302 read with Section 201, I.P.C., because the dead bodies had been thrown away to screen himself from punishment. 10. While arguing to accept the Death Sentence Reference, Mr. A.K. Mishra, learned Standing Counsel argues to approve the same in view of overwhelming circumstantial evidence available on record to prove the heinous crime committed in a gruesome manner by the accused. 10. While arguing to accept the Death Sentence Reference, Mr. A.K. Mishra, learned Standing Counsel argues to approve the same in view of overwhelming circumstantial evidence available on record to prove the heinous crime committed in a gruesome manner by the accused. He also replies to the argument of the accused-Appellant and distinguishes the citations relied on by the accused. 11. Learned Counsel for the accused-Appellant on the other hand argues that Ext.3 cannot be regarded as F.I.R. when on the basis of the information of P.W.2, U.D. Case was started after finding the dead body of the deceased Kuni and, therefore, learned Sessions Judge had gone wrong in accepting Ext.3 as the FIR. He also argues that the evidence of P.Ws.1, 3, 7 and 8 are not sufficient to prove the last seen theory, in as much as, according to the Post mortem Report, Exts.23 to 26, the time of death were between 48 to 72 hours by the time the respective post mortem examinations, and therefore when the post mortem was conducted on 17,06.2002 of the dead body of deceased Kuni and on 18.06.2002 the dead bodies of the three children, therefore, the last seen theory is a myth in this case. He argues that if that part of the prosecution evidence is held to be not acceptable, then there is no evidence on record to connect the accused with the crime so as to warrant a conviction. The other evidence available on record at best may give rise to strong suspicion and accused cannot be convicted on the basis of mere suspicion. He argues that accused as D.W.1 has explained that the deceased persons were not with him at any point of time, as narrated by the prosecution witnesses, and therefore the last seen theory is not applicable as against him. Alternatively the accused-Appellant argues that if the order of conviction is maintained, then in view of the ratio in the case of Bachan Singh Vs. State of Punjab this is not a fit case to award death sentence. Accordingly he argues to discharge the Death Sentence Reference and to allow the Jail Criminal Appeal. 12. Alternatively the accused-Appellant argues that if the order of conviction is maintained, then in view of the ratio in the case of Bachan Singh Vs. State of Punjab this is not a fit case to award death sentence. Accordingly he argues to discharge the Death Sentence Reference and to allow the Jail Criminal Appeal. 12. Though the accused-Appellant has not challenged to the findings recorded by the Trial Court on homicidal death of each of the deceased, but we have addressed ourselves in that respect and in course of hearing asked the counsels to read the relevant evidence so also the relevant findings of the trial Court. Ext.1 is the Inquest Report, which indicates that the dead body of the deceased Kuni was found on the field ('Padia') near a 'Nala'. Then some injuries were noticed on the left side neck and cheek. Though the cause of death was not opined therein, but it was opined that some unknown persons might have killed her. The inquest was held at 11.30 a.m. on 17.06.2002. Post mortem examination was conducted at 4.15 p.m. on the selfsame day. P.W.9 stated that there are two abrasions, one over left side of upper part neck and the other over left cheek and that all internal organs were congested. According to the doctor, the most probable cause of death was asphyxia following smothering and the time of death was about twelve hours before with a margin of error of six hours. So, if the time element is applied here, the death was about 16 to 18 hours before 4.15 p.m. of 17.06.2002, i.e., in the night between 16th and 17th June, 2002. 13. P.W.9 stated that on 18.06.2002 at about 5.00 p.m. he conducted post mortem examination on the dead body of deceased Ramesh, a five years old child. He found the trachea and lungs containing fine white froth and absence of any ligature mark or external injury. P.W.9 opined that the most probable cause of death was due to drowning and the time of death was between 48 to 72 hours. It appears from the Inquest Report, Ext.5 that the dead body of the deceased was found floating inside a well by the side of the road. 14. P.W.9 opined that the most probable cause of death was due to drowning and the time of death was between 48 to 72 hours. It appears from the Inquest Report, Ext.5 that the dead body of the deceased was found floating inside a well by the side of the road. 14. It appears from the Inquest Report, Ext.4 that the dead body of deceased Hanati Behera, aged about 8 years, was also found floating in the same well and the doctor, in his evidence, stated that white fine tenacious froth was coming from the nostril and the most probable cause of death was due to drowning. About the time of death he gave similar opinion as above. 15. In respect of deceased Babu Behera, aged about four months, as per the Inquest Report, Ext.6, the dead body was found in a ditch filled with water of 'Kaliapani Nala'. The face of the dead body was in downward condition. According to P.W.9, he conducted the post mortem examination of the dead body at 5.00 p.m. on 18.06.2002 and found that fine white tenacious froth was filled throughout the respiration tract from nostril to alveoli and the most probable cause of death was due to drowning. He also fixed the time of death to be between 48 to 72 hours from the time of post mortem examination. 16. In the case of Ramjee Rai and Ors. v. State of Bihar (2007) 36 OCR (SC) 112, considering the contention relating to time of death in a case of homicide, the Hon'ble Apex Court have held that Medical science has not achieved such perfection so as to enable a medical, practitioner to categorically state in regard to the exact time of death. In a case of the nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death. (Paragraphs 37 and 38 of the cited Judgment) 17. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death. (Paragraphs 37 and 38 of the cited Judgment) 17. On a careful reading of the evidence on record, the Inquest Reports and the Post mortem Reports besides the evidence of P.W.9, we find that when the prosecution case is of the children being in the custody of the parents, their death in the above indicated manner cannot be construed to be a case of suicide or any other kind of unnatural death. Obviously, two children being thrown into the well and another child thrown to the 'Nala', they suffered the death involuntarily and that amounts to homicidal death. Therefore, we concur with the conclusion of learned Sessions Judge on the homicidal death of the deceased persons. At the same time, we observe that a Court of Sessions dealing with such type of cases has to properly make analysis of evidence, reflect that in the Judgment in furtherance of the findings so that the logic followed by the trial Court can be properly appreciated by the superior authority. We say so, because in this case notwithstanding recording the findings on homicidal death the trial Court has not made analysis of the evidence in the above indicated manner. 18. So far as the circumstantial evidence is concerned, prosecution relies on the conduct of the accused before and after the aforesaid occurrence, be that for motive and/or otherwise, and in addition to that the last seen theory. We may note here that the evidence of P.Ws.1, 3, 7 and 8 relating to the last seen theory has remained unshaken. There is nothing on record, i.e., the deposition of those witnesses so as to grant a discredit to their version when P.W.1 stated that accused came on 13.06.2002 and wanted to take his wife and children with him, that P.W.1 wanted to involve P.W.3 in that matter, that P.W.3 came to the house of P.W.1 where both accused and P.W.1 requested him to accompany the deceased persons to Panikoili Chhak, and that at Panikoili Chhak P.W. No. 3 left the deceased persons in the, custody of the accused. Because the witnesses have described the occurrence by referring to the 'Raja' festival day, therefore the date in that respect has to be fixed either as 14th or 15th June, 2002. Be that as it may, in this case since deceased Kuni died in the night between 16th and 17th of June, 2002, therefore, in view of the post mortem report fixing the approximate time of death of remaining three children, their time of death are also fixed to the same period with little variation here and there. Whether on 14.06.2002 the deceased persons were with the company of the accused and they were found dead on 17th and 18th of June, 2002, argument of the accused-Appellant is that the last seen theory is far fetched and in that respect he relies on the case of Jaharlal Das Vs. State of Orissa, In that case the Apex Court took note of the discrepant circumstance of omissions in the Inquest Report about the accused leading to the place of concealment and that the deceased was last seen with the company of the accused. Apart from that, evidences of the parents of the deceased child were found to be infested with interestedness because of the improvement made therein in comparison to their statements made before the police. The Apex Court, thus, ruled that the evidence on record may give rise to a strong suspicion about complicity of the accused with the crime, but in the absence of proof of last seen theory in appropriate manner conviction cannot be recorded on the basis of such strong suspicion. We note here that the facts and circumstances in this case are quite distinguishable, in as much as, there is no discrepancy or over-interestedness in the evidence of P.Ws.1 and 3 or for that matter in the evidence of P.Ws. 7 and 8 relating to the last seen theory. In the above context, in the case of Amit alias Ammu v. State of Maharashtra (2003) 26 OCR (SC) 294, their Lordships of the Supreme Court, taking a similar circumstance into consideration, held that Learned Counsel for the Appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman and Another Vs. State of Assam, for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the Appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the Appellant and deceased were last seen by P.W.1 and P.W.11. No explanation has been offered in statement by the Appellant recorded u/s 313, Code of Criminal Procedure. His defence is of complete denial. In our view, the conviction for offences under Sections 302 and 376 has been rightly recorded by Court of Session and affirmed by the High Court. (Paragraph - 9 of the cited Judgment) 19. Be that as it may, in a case of this nature the matter relating to last seen theory is to be considered on the basis of facts and circumstances available to each case, i.e., the case at hand and no straight-jacket formula or a fixed theory can be adopted in such a matter. In this case evidence of P.W.5 indicates that accused took leave of his master to come to the village to take his family, i.e. wife and children. That part of his evidence remains unchallenged. The evidence of P.W.1 is to the effect that accused came and wanted to take his wife and children. That evidence has remained unchallenged, though in his deposition accused as D.W.1 later on (after closure of the prosecution case) denied to that aspect. That part of his evidence remains unchallenged. The evidence of P.W.1 is to the effect that accused came and wanted to take his wife and children. That evidence has remained unchallenged, though in his deposition accused as D.W.1 later on (after closure of the prosecution case) denied to that aspect. Even if that denial is taken into consideration, then also the evidence of P.W.1 having remained unshaken and corroborated by the evidence of P.W.5 as well as P.W.3, is found to be credible. P.W.3 is no other person than the sister's husband of the accused. Therefore, he is more close in relationship with the accused than with the deceased persons. His unhesitating statement indicates that both P.W.1 and the accused wanted him to accompany and escort the deceased persons to Panikoili Chhak wherefrom accused wanted to take custody of them (the deceased persons) and, in fact, at that place P.W.3 left the deceased persons in the custody of the accused. Accused is no other person than the husband of deceased Kuni and father of the three children, and the purpose for which he had taken leave from his master was to bring his wife and children. So, if all the circumstances are considered together, then, even if the death occurred in the night of 16th June, 2002 (though accused got the custody of the deceased persons on 14th June, 2002), then also the theory of last seen is fulfilled, in as much as accused does not explain by any cogent evidence as to at what point of time and in which sequence there was severance of the company between him and the deceased persons. Mere giving a denial statement in such a case is not sufficient for the accused to get rid of a gruesome charge for the offence of murder causing death of his wife and three innocent children. In addition to that, the evidence of P.Ws.7 and 8, who are no way connected with the accused or the deceased and are not interested for either of the parties, clearly reveals that from Panikoili Chhak accused moved towards the village of P.W.5 together with the deceased persons. Therefore, there are no loopholes or missing links to prove the last seen theory in this case. Therefore, there are no loopholes or missing links to prove the last seen theory in this case. Once that is established together with proved fact of homicidal death of the deceased persons, then comes the question of motive which is clearly stated by P.Ws. 1, 2 and 4 in relation to the repeated misconduct on the part of the accused in the matter of dealing with fair sex. Therefore, even if in an earlier, case the accused was acquitted from the charge u/s 376/302, I.P.C. and even if the prosecution cannot take any strength from such a charge because of the order of acquittal, then also the evidence of P.WA is good enough to constitute the motive for committing murder in the aforesaid manner. Thus, we also record our concurrence to the findings on proof of the last seen theory. 20. As noted earlier, in course of submission, argument was advanced not to accept Ext.3 as the F.I.R. A deliberation in that respect is unwarranted in as much as when the dead body of the deceased Kuni was found, information was given by P.W.2 who had no knowledge about the previous talking amongst P.Ws. 1, 3 and the accused regarding departure of the deceased persons. Nor he had the knowledge about the assurance given by accused to P.W. 4. Apart from that, in that information nothing was informed relating to a cognizable offence. Therefore, the information, on the basis of which an U.D. Case was registered, cannot be regarded as F.I.R. On the other hand, Ext.3 being lodged to intimate the investigating agency regarding a cognizable case, that was rightly accepted as F.I.R. In that respect law is well settled that a document like Ext.3 be regarded as F.I.R. See the case of Ramsizh Bavaji Jadeja v. State of Gujarat (1994) 7 OCR (SC) 610. 21. No other point having been urged challenging to the order of conviction, we find that the order of conviction is sustainable. At this stage comes for consideration as to whether the death sentence is to be confirmed or modified. The ratio which has been propounded in the case of Bachan Singh (supra) has been examined by the Apex Court in subsequent occasion and the pole-star principle propounded in the case of Bachan Singh (supra) has been followed all throughout. Quoting the mitigating circumstances from Dr. The ratio which has been propounded in the case of Bachan Singh (supra) has been examined by the Apex Court in subsequent occasion and the pole-star principle propounded in the case of Bachan Singh (supra) has been followed all throughout. Quoting the mitigating circumstances from Dr. Chittlay, their Lordships said that: There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz. that for persons conviction of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. (Paragraph-207 of the cited Judgment) 22. The trial Court held that the misdeed of the accused in taking away four precious lives was with a view to marry another married woman and earlier he was also involved in a case u/s 376/302, I.P.C. and, therefore, it can be termed that he committed the crime cold bloodedly to satisfy his lust and such an act being shocking to the human conscience, therefore he should be given the extreme penalty. Though the aforesaid circumstance exists, but at the same time the mental condition of the accused all throughout was failed to be noticed by the trial Court. The accused suffered from perversity all throughout and that was known to the deceased as well as P.W.1. By the date of occurrence accused was already 45 years old. By lapse of time he has crossed the age of fifty years. The advance age may be a contributing factor to take away the ill-directed mentality or perversity. Though the offence committed by him is shocking and highly disproportionate to his desire, but still it counts to be very grave case but falls short of the rarest of the rare category for death penalty, and for that imprisonment for life appears to be the appropriate punishment. 23. Accordingly, while maintaining the order of conviction of the accused for the offence u/s 302/201, I.P.C., we do not accept the proposal for death penalty, and in its place we impose punishment of imprisonment for life to the accused for the offence u/s 302, I.P.C. We also sentence the accused to undergo rigorous imprisonment for five years for the offence u/s 201, I.P.C. and direct that the sentences are to run concurrently. 24. Accordingly, the Death Sentence Reference is discharged and the Jail Criminal Appeal is allowed in part.