JUDGMENT 1. - This reference has been made to this court under Section 366 of the Code of Criminal Procedure by the Additional Sessions Judge, Shahpura, District Jaipur, for confirmation of the death sentence awarded by that court vide its judgment and order dated 30.04.2011 in Sessions Case No.25/2007 to accused Rohitash Son of Kaluram, Resident of Village Antela, Police Station Shahpura, District Jaipur, for offence under Sections 302 and 201 of the Indian Penal Code. Accused Rohitash has also filed Criminal (Jail) Appeal No.451/2011 against aforesaid judgment and order dated 30.04.2011, through the Superintendent of Central Jail, Jaipur. 2. Since both the matters arise out of common judgment, therefore they were heard together. 3. This court, by its order order dated 12.05.2011, requested Shri Suresh Sahni, learned Advocate, to assist the court as amicus curiae in this death reference and he acceded to our request. We at the outset record our appreciation for his able assistance. 4. Factual matrix of case is that one Ashok Kumar (PW-3) submitted a written report (Exhibit P-4)at Police Station Shahpura on 01.04.2007 stating therein that he had two sisters, namely, Lila Devi and Kripa Devi; both of whom were married in village Antela. His first sister Lila Devi was married to Rohitash. Out of that wedlock, they had six daughters and two sons. His second sister Kripa Devi was married to Shriram (Rohitash's brother). On 01.04.2007 one Om Prakash S/o Kana Ram, informed him on phone that his sister Lila Devi has been murdered and her dead body was lying in jungle behind 'bawdi' (water reservoir) and that they were going to the spot. Om Prakash requested him to reach there immediately. Thereupon, the author of the report reached village Antela at 12.00 hrs. in the noon and thereafter he reached the spot where the dead body was lying. He immediately identified the dead body to be of her elder sister Lila Devi. After sometime, dead bodies of his two nephews (sister's sons), Ajit and Lalchand, aged 7 and 3 years, respectively, lying at some distant place, were also discovered. Dead bodies of his nephews were found buried in burnt condition. It was done in order to cause the proof of offence to disappear. After sometime, dead bodies of his two nephews (sister's sons), Ajit and Lalchand, aged 7 and 3 years, respectively, lying at some distant place, were also discovered. Dead bodies of his nephews were found buried in burnt condition. It was done in order to cause the proof of offence to disappear. It was further stated by the author of the report that he enquired from his another brother-in-law Shriram and sister Kripa about the incident and only thereafter he came to know that accused Rohitash and deceased Lila Devi with their deceased sons Ajit and Lalchand had left the house about 7-8 days ago saying that they were going to place of Paramdas Maharaj but thereafter they did not return the home. On 31.03.2007 his younger sister Smt. Kripa Devi went to jungle near the bawdi, to collect dry wood for fuel purposes where she met accused Rohitash, who was alone. In view of the fact that dead bodies of deceased Lila Devi and her two sons were found lying near the same place coupled with the fact that one day before Rohitash met Kripa Devi at that place in jungle, he is sure that his sister Lila Devi and her two sons have been murdered by accused Rohitash and their (sons) dead bodies were burnt and buried by him to destroy the evidence. 5. On receipt of aforesaid report, the police chalked out a regular first information report for offence under Sections 302 and 201 of the Indian Penal Code, and commenced the investigation. During investigation, accused Rohitash was arrested. 6. On completion of investigation, the police filed challan against accused Rohitash for the afore-noted offences before Additional Chief Judicial Magistrate, Shahpura on 30.04.2007 . After committal of the matter to the court of Sessions, case was made over to the court of Additional Sessions Judge for trial. That court, vide its order dated 02.04.2008, framed separate charges under Sections 302 and 201 of the Indian Penal Code against accused Rohitash. The accused denied the charges and claimed to be tried. 7. Prosecution, in support of its case, examined as many as 21 witnesses and got 34 documents exhibited from Exhibit P-1 to Exhibit P-34. In the statement under Section 313 Criminal Procedure Code the accused was confronted with circumstances emerging against him. The accused denied the charges and claimed to be tried. 7. Prosecution, in support of its case, examined as many as 21 witnesses and got 34 documents exhibited from Exhibit P-1 to Exhibit P-34. In the statement under Section 313 Criminal Procedure Code the accused was confronted with circumstances emerging against him. He, however, denied the same and stated that he is innocent and that he has been falsely implicated. Although no oral evidence was produced by the defence but the statement of Kumari Jyoti (daughter of accused) recorded under Section 161 Criminal Procedure Code, was produced in evidence as Exhibit D-1. 8. Learned Additional Sessions Judge, after hearing arguments of learned counsel appearing on behalf of accused as well as learned Public Prosecutor, vide its judgment and order dated 30.04.2011 finally convicted the accused for offence punishable under Section 302 of the Indian Penal Code and awarded him death sentence. In his view, the accused misused his dominant position in that, though he was husband to deceased Lila Devi and father to deceased two sons, namely, Ajit and Lalchand, in whose protection they felt most secured, but he put them to death in most brutal manner. His this cruel act has shocked the collective conscious of the society. He has thus proved himself to be a menace to the society. This, according to learned trial court, was a 'rarest of rare cases' where, looking to gravity of the offence, penalty of life imprisonment would be wholly insufficient and therefore it awarded death sentence to the accused. Additionally, the learned trial court also awarded sentence of rigorous imprisonment of five years to accused Rohitash for offence under Section 201 of the Indian Penal Code with fine of Rs. 100/-, in default of payment of fine, he was to further undergo rigorous imprisonment of three months. However, the trial court ordered both the sentences to run concurrently. Hence the reference and the appeal. 9. We have heard Shri Suresh Sahni, learned amicus curiae, Shri Rajendra Yadav and Shri J.R. Bijrania, learned Public Prosecutors, and carefully studied the judgment and the order of reference and examined the material on record. 10. Shri Suresh Sahni, learned amicus curiae, has argued that entire prosecution case rests on circumstantial evidence there being no direct evidence. 9. We have heard Shri Suresh Sahni, learned amicus curiae, Shri Rajendra Yadav and Shri J.R. Bijrania, learned Public Prosecutors, and carefully studied the judgment and the order of reference and examined the material on record. 10. Shri Suresh Sahni, learned amicus curiae, has argued that entire prosecution case rests on circumstantial evidence there being no direct evidence. Chain of circumstances in this case is not so complete as to rule out every single hypothesis compatible with the innocence of the accused. There are, in this case, several missing links which make the accused entitled to benefit of doubt and consequential acquittal. He argued that prosecution in this case has heavily relied on the statement of Kumari Jyoti, aged 15 years, who is daughter of accused Rohitash, and has been examined as PW-14. She has, in her examination-in-chief, stated that accused Rohitash, her mother and two younger brothers, had left the house at about 10.00 in the morning saying that they would go to the place of Paramdas Maharaj to seek his blessings. Her father told that they would either come in the evening or after 9-10 days. PW-14 Jyoti also stated that her father had become mad and therefore he had gone to seek blessings of Paramdas Maharaj. In the cross-examination, however, this witness stated that she did not see her father, mother and brothers going from the home because at that time she was not even present at the home. She also stated that accused Rohitash had no differences with his wife (deceased Lila Devi) and that she had never seen accused Rohitash beating deceased Lila Devi. Lastly, she stated that she does not have any doubt on her father. This kind of statement cannot be read and relied on to sustain the conviction of the accused in a case which entirely rests on circumstantial evidence. Her statement cannot therefore be considered to be a safe evidence of last seen because she contradicts herself. Being a 15 years old girl, she cannot be considered to be a small child so as not to understand the implication of her statement. 11. Shri Suresh Sahni, learned amicus curiae also referred to statement of PW-10 Kripa Devi (sister of deceased Lila Devi), who saw accused Rohitash in jungle a day before around the same place wherefrom dead bodies were recovered. 11. Shri Suresh Sahni, learned amicus curiae also referred to statement of PW-10 Kripa Devi (sister of deceased Lila Devi), who saw accused Rohitash in jungle a day before around the same place wherefrom dead bodies were recovered. All that this witness stated is that she saw accused Rohitash in the jungle when she went there to collect wooden fuel, but she has not stated to have seen any dead body. In her statement, PW-10 Kripa Devi has stated that she and deceased Lila used to live separately. Deceased Lila and accused Rohitash happily lived together and were having good relations. There were no differences between them. PW-11 Saroj and PW-15 Santosh, who accompanied Kripa Devi to jungle for collecting dry woods for fuel, though stated that they also saw Rohitash in the jungle behind the 'bawdi', yet they did not see the dead bodies there nor felt any smell, whereas on the very next date when dead bodies were recovered at about the same place, it was stinking all around. These witnesses, in their cross-examination, also stated that accused Rohitash and Lila Devi had no differences and, in fact, they used to reside together happily. Learned amicus curiae in this connection also referred to the statement of PW- 19 Shri Khayali Ram and PW-20 Shri Jagdish, who were the first to see the dead bodies and inform the villagers. 12. Learned amicus curiae argued that even if conduct of an accused after the incident is found to be unnatural and creates strong suspicion against him, that by itself is not sufficient to convict him, especially when no strong motive to put an end to the life of deceased is made out. In the present case, no motive has been assigned as to why the accused Rohitash would kill his own wife and sons. 13. Shri Suresh Sahni, learned amicus curiae, argued that although learned trial court has linked the burn injuries no.2 to 5 sustained by accused Rohitash to burnt bodies of two children, and used the same as an important piece of evidence to connect him with the crime but that could not be done because the injuryreport (Exhibit P-26) of the accused could not be read in evidence as neither Dr. Mahak Singhal, who medically examined him, was produced in evidence nor Shyam Lal, Assistant Sub Inspector of Police, Shahpura, who took the accused to the said medical officer, was examined by the prosecution. In their absence, the injury report could not be read in evidence against accused. The learned amicus curiae argued that this circumstance about the burn injuries on the body of the accused, was not even put to the accused in his statement recorded under Section 313 of the Criminal Procedure Code, and therefore also it could not be read against him. 14. Shri Suresh Sahni, learned amicus curiae, further argued that Surendra Singh (PW-9), who arrested the accused and prepared his arrest memo has also not stated in his court statement that he had seen burn injuries on his body and therefore the accused cannot be connected with the burn marks found on the dead bodies of his sons. The clothes of the accused having burn marks were seized vide Exhibit P-21, with regard to which also it is claimed by the prosecution that they connect the accused Rohitash with the murder of his sons, whose body parts were found burnt. Even this circumstance was also not put to him in his statement under Section 313 of the Criminal Procedure Code In this connection, learned counsel relied on celebrated judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra - (1984) 4 SCC 116 , wherein their Lordships held that every circumstance that is sought to be used against accused, must be put to him in his statement under Section 313 of the Criminal Procedure Code To support this argument, learned amicus curiae, has also relied on a judgment of the Supreme Court in Mohd. Ramzani v. State of Delhi, (1980) Supp. SCC 215. 15. One Ravi, who was witness to seizure of handle of axe (Exhibit P-16), which was allegedly used for committing offence and recovered from a well, has also not been produced in evidence. According to learned amicus curiae, there is another significant aspect which raises a serious doubt about fairness of investigation, is that on one single day four different information memos under Section 27 of the Evidence Act were prepared and all informations were said to be given by accused Rohitash on 03.04.2007 only. This, according to learned counsel, could be the result of police padding. This, according to learned counsel, could be the result of police padding. Learned amicus curiae argued that in cross-examination PW-10 Kripa Devi was put one suggestion as to dispute between two brothers, namely, her husband and accused Rohitash, with regard to a piece of land, and she denied this suggestion. Nevertheless that should be a factor in favour of the accused because there is no clinching evidence and there are so many missing links in the chain of circumstances against him. 16. Lastly but not alternatively, learned amicus curiae has argued that all prosecution witnesses including PW-14 Jyoti (daughter of accused), PW-10 Kripa Devi (sister-in-law of accused and younger sister of deceased Lila Devi), PW-11 Saroj Devi and PW-15 Santosh (who accompanied Kripa Devi to jungle) and PW-4 Shriram (brother of the accused), in their statements have consistently maintained that relationship between accused Rohitash and deceased Lila Devi always remained cordial and there were no differences between the two. The accused had lot of love for his children as also deceased wife Lila Devi. He has six daughters to look after. Out of them only three are married and three are unmarried. The motive also could not be established by the prosecution as to why while having relationship of this nature the husband would kill his wife and children. In view of these mitigating circumstances, this court ought not to confirm the sentence of death and may rather in the facts of case consider life imprisonment as sufficient penalty. Learned amicus curiae in this connection relied on the judgment of Supreme Court in Rameshbhai Chandubhai Rathod Vs. State of Gujarat - (2011) 2 SCC 764 , Mulla & Anr. v. State of Uttar Pradesh (2010) 3 SCC 508 , and argued that although on the parameters laid down in those judgments, the present case does not qualify the test of being 'rarest of rare cases' so as to justify the death sentence. 17. Per contra, learned Public prosecutor argued that chain of circumstances against the accused is so complete which rules out every possible hypothesis that may be compatible with his innocence and therefore learned Additional Sessions Judge was justified in convicting him for offence under Sections 302 and 201 of the Indian Penal Code. 17. Per contra, learned Public prosecutor argued that chain of circumstances against the accused is so complete which rules out every possible hypothesis that may be compatible with his innocence and therefore learned Additional Sessions Judge was justified in convicting him for offence under Sections 302 and 201 of the Indian Penal Code. The accused not only committed brutal murder of his own wife and two minor sons, aged 7 and 3 years, but mutilated their bodies and then burnt and buried them with intention to cause the proof thereof to disappear. Learned Public Prosecutor argued that PW-14 Kumari Jyoti was the witness of last seen. She has categorically stated that her father, mother and two younger brothers left the house at 10.00 in the morning. Her father told that either they would come back in evening of that very day or after 9-10 days and thereafter they did not return back. There is no significance of her statement made to the effect that her father had gone mad and therefore went to seek blessings of Paramdas Maharaj. Even if in answer to some of leading questions, she stated that she did not have any doubt on his father (that he would have killed her mother and brothers), that should be appreciated in the light of fact that this witness who is barely fifteen years old, was own daughter of the accused. Apart from the evidence of last seen, the unnatural conduct of the accused was a very strong circumstance against him. This is reflected from the statement of PW- 10 Kripa Devi that she met the accused when she went to jungle accompanied with other two ladies, namely, Saroj (PW-11) and Santosh (PW- 15) to collect fuel. She saw accused Rohitash near jungle behind the bawdi and asked him as to what he was doing there. Accused Rohitash ran towards her madly. She told him that he should bring the children back to home. On being asked as to where the children are, he merely stated that they are there only. PW-11 Saroj and PW-15 Santosh have also given same statement about unnatural behaviour of accused Rohitash. They stated that when PW-10 Kripa Devi called accused Rohitash, he thrice stated 'go away' and ran towards the jungle. He carried with him a 'doli' (food container) and cotton sheet. PW-11 Saroj and PW-15 Santosh have also given same statement about unnatural behaviour of accused Rohitash. They stated that when PW-10 Kripa Devi called accused Rohitash, he thrice stated 'go away' and ran towards the jungle. He carried with him a 'doli' (food container) and cotton sheet. Conduct of accused after the incident was such which connects him with the crime. 18. Learned Public prosecutor submitted that Exhibit P-26, medico-legal report of the accused, shows that he had as many as five burn injuries i.e. no.2 to 5 on his right shoulder, middle finger of right hand, posterior surface of left hand and on the face near beard etc. His clothes, that were seized vide Exhibit P-21, were also having burn marks, whereas dead bodies of his children indicated burn marks on arms and legs. In this connection he also referred to inquest report (Exhibit P-3) and recovery of pieces of human skull of his children (Exhibit P-8), recovery of ash (Exhibit P-10) made from the place of incidence where those dead bodies were found and recovery memo was prepared as Exhibit P-10. Reference was also made to statements of Suresh Kumar Jindolia (PW-6), Babu Lal (PW-5), who are the witnesses of recovery. 19. Learned Public prosecutor has argued that mere non-examination of Dr. Mahak Singhal, who medically examined the accused and prepared the injury-report (Exhibit P-26), may not be fatal to the prosecution case. Learned Public Prosecutor, in this connection, relied on statement of PW-9 Surendra Singh, who has proved the arrest-memo (Exhibit P-21) of the accused, wherein it is clearly stated that accused had burn marks on different parts of his body and his clothes were also burnt having blood stains. It is therefore argued that burn marks were independently proved and besides that the injury report has been produced on record and got exhibited. 20. Learned Public Prosecutor argued that merely because some circumstances were not put to the accused in his statement under Section 313 Criminal Procedure Code, not by itself would be fatal to the prosecution case because all other circumstances proved in evidence were put to him except the circumstance of his burn marks. That one factor alone cannot be a reason to discard all other prosecution evidence. In this connection, learned Public Prosecutor relied on judgment of the Supreme Court in Mannu Sao Vs. That one factor alone cannot be a reason to discard all other prosecution evidence. In this connection, learned Public Prosecutor relied on judgment of the Supreme Court in Mannu Sao Vs. State of Bihar - (2010) 12 SCC 310 , and argued that the Supreme Court in this case has explained the essential features and purpose of statement recorded under Section 313 of the Criminal Procedure Code that such statement can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. Learned Public Prosecutor also placed reliance on the judgment of the Supreme Court in Shobhit Chamar and another v. State of Bihar - AIR 1998 Supreme Court 1693 , and argued that if relevant facts are put to the accused under Section 313 of the Criminal Procedure Code, minor omissions would not make any difference. In this case the death penalty awarded to the accused for murder of his brother and nephew, was upheld by the Supreme Court. Although another co-accused not related to accused and deceased, was awarded only life imprisonment. 21. Learned Public Prosecutor further argued that the motive by itself cannot be the only important aspect to tilt balance in favour of accused if there is other strong circumstantial evidence against him that points towards his guilt and to no one else. Learned Public Prosecutor cited the judgment of the Supreme Court in Behari Prasad v. State of Bihar, AIR 1996 Supreme Court 2905 , and argued that even though that was a murder case where the investigating officer could not be examined even then it was held by the Supreme Court that mere non examination of investigating officer by itself does not per se vitiate a criminal trial if the other evidence was sufficient to prove the offence of the accused. 22. On the question of sentence, learned Public Prosecutor argued that learned Additional Sessions Judge was justified in holding that this was a 'rarest of rare cases' and death penalty was rightly awarded to the accused. Accused Rohitash was in a dominating position in the capacity of husband and father, and he, instead of being saver to them, committed their cold blooded murder. This shocked the collective conscious of the society. Penalty of death was fully justified. Accused Rohitash was in a dominating position in the capacity of husband and father, and he, instead of being saver to them, committed their cold blooded murder. This shocked the collective conscious of the society. Penalty of death was fully justified. Alternatively, learned Public Prosecutor argued that if this court is persuaded to reduce it to life imprisonment, such reduction should be with the rider and condition as given by the Supreme Court in Shri Bhagwan v. State of Rajasthan - AIR 2001 Supreme Court 2342 , that accused must not be released before twenty years of imprisonment. In that case too, the death sentence was reduced to that of life imprisonment. 23. We have given our thoughtful consideration to rival submissions and perused the material on record. 24. This court has to examine each of the incriminating evidence so as to find out if each one of circumstantial evidence if proved individually and whether collectively, forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond any shadow of reasonable doubt. We shall presently state the reasons of our satisfaction that chain of circumstances against the accused is indeed so complete as to rule out every possible hypothesis that may be compatible with his innocence and does point towards the guilt of accused Rohitash and none else. 25. Notwithstanding minor deviations made in her cross-examination, PW-14 Kumari Jyoti D/o accused Rohitash and deceased Lila Devi, has to be treated as the witness of last seen because she has categorically stated that she was in the house when her father, mother and two brothers, left to visit the place of Paramdas Maharaj to seek his blessings. Her father told that they would either come back in the evening of that very day or after 9-10 days but none of them came back for about ten days. Contention of learned amicus curiae, that she has contradicted herself in the cross-examination by stating that she had not seen her father, mother and brothers going from home, cannot be accepted because this is not the statement that she gave. In fact, what she stated is that she did not see them all going outside together, and this implies that they may have left one after another. In fact, what she stated is that she did not see them all going outside together, and this implies that they may have left one after another. Moreover, these were leading questions put to a girl, who was barely 15 years old and who had just lost her mother and two brothers and was seeing her father face trial. 26. Record reveals that an attempt was made by the accused to defile the dead bodies and conceal the evidence. The dead bodies of the children were mutilated and then they were put to fire, which ultimately could be recovered in different body parts. Even if we ignore the injury report (Exhibit P-26), for the aforesaid reasons, the burn injuries on the body and clothes of the accused even otherwise can be accepted in evidence, which have been proved by arrest and personal search memo (Exhibit P-20) dated 02.04.2007 in which details abut his burn injuries between the middle of two fingers of right hand and on his right shoulder near the neck have been noted. His clothes were seized vide Exhibit P-21 which also had the burn marks, which fact was mentioned in this seizure-memo. Recovery of clothes from the place of occurrence was made vide Exhibit P-10. All these have been proved by the investigating officer PW-9 Surendra Singh. The fact that four different recovery-memos were prepared on 03.04.2007 would not make any difference to the fairness of investigation because eventually those informations that the accused gave, have been found to be relevant, consequential recoveries having been made. And it is the factum of recovered articles that would relevant piece of evidence. 27. Argument that since the medical officer, who examined the accused Rohitash, has not been produced in evidence, therefore those injuries and injury-report could not be taken into consideration, cannot be accepted because that by itself was not the only circumstance adverse to the accused. There are several other circumstances which even otherwise connect the burn injuries of the accused with burnt body parts of his two sons. Reason for our this view is that the injuries especially the burns found on the body of accused Rohitash and on his clothes, have even otherwise been proved by the arrest/seizure memo (Exhibits P-20 and P-21) and those documents have been produced in record and got exhibited by Surendra Singh PW-9, the investigating officer. Reason for our this view is that the injuries especially the burns found on the body of accused Rohitash and on his clothes, have even otherwise been proved by the arrest/seizure memo (Exhibits P-20 and P-21) and those documents have been produced in record and got exhibited by Surendra Singh PW-9, the investigating officer. We may in this connection usefully refer to the judgment of the Supreme Court in Mukul Mahto & Ors. Vs. State of Jharkhand & Another - (2008) 15 SCC 648 , wherein also the doctor who examined the deceased and prepared injury report, was not produced. The supreme Court therein held that non-examination of doctor would not be fatal because death was homicidal was not disputed. 28. Post-incident-conduct of the accused is a strong circumstance against him in terms of Section 8 of the Evidence Act as to why he maintained stoic and stony silence for all these ten days and why he kept roaming around in jungle and did not came back to his house to take care of his children, who were eagerly waiting for his return and return of their mother and brothers. 29. If the statement of the witness of last seen, namely, PW-14 Kumari Jyoti, is examined in conjunction with statements of PW-11 Saroj, PW- 15 Santosh and PW-10 Kripa Devi, who all had gone together to jungle for collecting dry woods, it would be evident that though accused Rohitash had left the house and the village about 8-10 days ago, but did not turn back to see and take care of his other children. PW-10 Kripa Devi saw the accused Rohitash from a distance and called him as to what he was doing there, he madly ran towards her; whereupon Kripa Devi told him that let him go wherever he wants to go but he should send the children back home and when she enquired as to where the children are, accused Rohitash told that they are there only and ran back towards the jungle. When Kripa Devi on return back home, informed her family members of this incident, nobody believed her saying why accused Rohitash would be roaming like this in the jungle and presumed that she must have seen some other persons. When Kripa Devi on return back home, informed her family members of this incident, nobody believed her saying why accused Rohitash would be roaming like this in the jungle and presumed that she must have seen some other persons. PW-11 Saroj also corroborated this that Kripa Devi on seeing Rohitash called her and when they reached there, accused Rohitash thrice asked them to 'go away' and then he ran towards the jungle. PW-15 Santosh has also corroborated these two statements. She also reiterated the conduct of accused Rohitash and the fact that he disappeared from the house/village for 8-9 days and was thereafter seen for the first time by these three witnesses in jungle and on the next day the dead bodies of Lila Devi and her two minor sons were found in the jungle at about the same place. The postmortem (Exhibit P-23) also gives the duration of death within last 7-10 days, which exactly is the duration of injuries received by accused Rohitash as is evident from the injury report (Exhibit P-26). Even if we ignore the injury-report for the reason of nonproduction of medical officer Dr. Mahak Singhal, who examined the accused Rohitash, the conduct of accused still stares at him. 30. We may at this stage refer to the judgment of the Supreme Court in Anant Lagu v. State of Bombay - AIR 1960 Supreme Court 500 . In that case, their Lordships, while dealing with a case, where conviction of the accused-appellant was solely based on circumstantial evidence, held that a criminal trial though is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged, but in that connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. 31. On conduct of the accused, reference may also be made to a judgment of the Supreme Court in Mangat Rai Vs. State of Punjab - AIR 1997 Supreme Court 2838 , wherein death of deceased was caused by accused administering to his wife poison and in order to falsify that, he made it look like suicide. Defence of accused was that she committed suicide. State of Punjab - AIR 1997 Supreme Court 2838 , wherein death of deceased was caused by accused administering to his wife poison and in order to falsify that, he made it look like suicide. Defence of accused was that she committed suicide. Accused was a medical practitioner having two clinics therefore he had every facility and opportunity coupled with the knowledge that the lethal dose of huge quantity of poison which by itself was very pungent was required to be diluted by mixing it up with alcohol before it could be administered to anyone. Subsequent conduct of accused in not immediately informing his in-laws and relatives of deceased and his absconding from the scene of offence for couple of days till he was ultimately arrested, which conduct though by itself might not be conclusive, becomes a clinching circumstance against him in the light of the aforesaid tell-tale pre-existing circumstances well established on record and which clearly point an accusing finger to the appellant and no one else. 32. The Supreme Court in State of Orissa Vs. Babaji Charan Mohanty and Another - (2003) 10 SCC 57 , was dealing with a case where conduct of accused soon after the incident of murder was highly suspicious. In Para 17 of the judgment, the court held as under:- "The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated by PW-1. Added to this, the conduct of PW-1 in implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability of PW-1's evidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony of PW-1, the High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony of PW-1, the High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son / brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of High Court is unsatisfactory in some respects." 33. In a case where circumstantial evidence is so strong with various other circumstances and the chain of circumstances against accused is so complete as to rule out any hypothesis compatible his innocence despite the motive having not proved, the absence of motive by itself would not be a reason to throw the prosecution case over board. The only consideration overriding consideration is that circumstantial evidence is such that should prove guilt of the accused and the offence beyond reasonable doubt. 34. We may, on the aspect, refer to the judgment of the Supreme Court in Manu Sao Vs. State of Bihar - (2010) 12 SCC 310 , held that in a case of circumstantial evidence, it is not absolutely essential to prove motive for securing conviction. Conviction can be recorded if the prosecution has been able to prove its case beyond reasonable doubt. In State through Central Bureau of Investigation Vs. Mahender Singh Dahiya - (2011) 3 SCC 109 , the Supreme Court held that although absence of motive assumes significance in a case of circumstantial evidence but that may not be relevant where there is sufficient evidence to prove offence beyond reasonable doubt. 35. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. 35. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. In what kind of cases sentence of death should be awarded has been subject matter of discussion in various judicial pronouncements so much so the guidelines that were laid down by the Supreme Court in Bachan Singh Vs. State of Punjab - (1980) 2 SCC 684 , while upholding the validity of Section 302 of the Indian Penal Code (which authorizes imposition of penalty of death sentence), while concurring with the view expressed by it in earlier judgment in Tdiga Annamma Vs. State of Andhra Pradesh - (1974) 4 SCC 443 , are adhered to till date, which are that (i) extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, and (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 36. Those principles that were laid down by the Supreme Court in Bachan Singh's case, supra, were best summarised in Machhi Singh v. State of Punjab - (1983) 3 SCC 470 , in Para 38 of the judgment therein, which we reproduce as under:- "38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case (supra): (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 37. The Supreme Court in Devender Pal Singh v. State of NCT of Delhi - (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles on this aspect by revisiting Bachan Singh's case, supra, and Machhi Singh's case, supra, observed in Para 58 as under:- "58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-'- vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community." 38. In a recent judgment in Rameshbhai Chandubhai Rathod Vs. State of Gujarat - (2009) 5 SCC 740 , judgment of High Court confirming death sentence awarded to the appellant was challenged before the Supreme Court. The appellant in that case was convicted for offence under Sections 363, 366, 376, 397 and 302 of the Indian Penal Code. The matter was laid before two- Judges bench of the Supreme Court. The Hon'ble Judges though upheld conviction of the accused but differed on the question of sentence with only one of them concurring with the judgment of the High Court confirming death penalty, another Hon'ble Judge observing that instead of death sentence, sentence of rigorous imprisonment for life will meet the ends of justice. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in Rameshbhai Chandubhai Rathod (2) Vs. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat - (2011) 2 SCC 764 , answered the reference by favouring life imprisonment. In doing so, their Lordships concurred with the view expressed in earlier two Supreme Court judgments, namely, Ramraj Vs. State of Chhattisgarh - (2010) 1 SCC 573 and Mulla and Another Vs. State of Uttar Pradesh - (2010) 3 SCC 508 , and held that death sentence awarded to the accused shall stand commuted to life imprisonment which shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 39. The Supreme Court in Machhi Singh's case, supra, while following its earlier dictum in Bachan Singh's case, supra, held that life imprisonment is the rule and death sentence is an exception, to which guidelines we have already made reference hereinabove. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. We reproduce hereunder Para 33 and 34 of the judgment of Supreme Court in Machhi Singh, supra, in extenso:- "I. Manner of Commission of Murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. (iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland." 40. We find that the circumstances of this case are not such where the act of the accused can be said to be a case of such extreme culpability where the life imprisonment would be altogether inadequate punishment, having regard to the nature of those circumstances. When we draw a balance sheet of all the aggravating circumstances as against mitigating circumstances of this case, we rather feel more inclined to award the sentence of life imprisonment than to award death penalty. Moreover motive in the present case is totally missing and it has not come to light as to what made the accused Rohitash commit murder of his own wife and two sons. Though it has not come on record that the accused had unstable state of mind because no such defence was taken by the accused nor as any evidence on that aspect has been led by either of the parties, but his daughter Jyoti (PW-14) has mentioned that he acted like a mad and therefore went to Paramdas Maharaj for his blessings. PW-10 Kripa Devi, PW- 11 Saroj and PW-15 Santosh have also deposed that when he met them in jungle a week after he left home his behaviour was on the verge of madness. All the aforesaid four witnesses as also PW-3 Ashok Kumar, brother of deceased Lila Devi, who lodged the FIR and PW-4 Shriram, brother of accused Rohitash, have consistently stated that the relationship between the accused Rohitash and his wife deceased Lila Devi was always cordial and that he used to love his wife as also the children. He has six daughters out of which three are married and three are unmarried. He has six daughters out of which three are married and three are unmarried. Then there is the fact that he also tried to kill himself, which, even though remotely, suggest realisation of remorse on his part. 41. Considering all these factors, in our view this case does not qualify the test of being "rarest of rare cases" and therefore, we commute the death sentence to that of life imprisonment, which shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 42. While answering the reference accordingly, we dismiss the appeal in so far as challenge to conviction under Sections 302 and 201 of the Indian Penal Code is concerned. Death sentence awarded to accused Rohitash vide judgment and order dated 30.04.2011, however, is commuted to that of life imprisonment, which shall extend to the full life of the accused but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. *******