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2013 DIGILAW 229 (CHH)

Office Reference v. Dhal Singh Dewangan

2013-08-08

PRITINKER DIWAKER, YATINDRA SINGH

body2013
JUDGMENT As per Hon'ble Shri Pritinker Diwaker, J. 1. This is a reference under section 366 of the Code of Criminal Procedure for confirmation of death sentence as the Sessions Judge, Durg in S.T.No.96/12 convicting the accused/appellant under Section 302 of IPC (for committing murder of six persons) has awarded him death sentence with fine of Rs. 1,000/- on each count plus default stipulations. 2. Apart from the reference, accused has also preferred an appeal against the judgment impugned convicting him under Section 302 IPC and imposing death sentence on him for committing the murder of his wife and five tender aged children. 3. This judgment shall thus govern the disposal of both i.e. criminal reference No.4 of 2013 and criminal appeal No. 563 of 2013; 4. In the present case, there are six deceased persons namely Thaneshwari (wife of the accused/appellant, aged about 32 years), Nisha, Laxmi, Sati, Nandini and Sandhya, the daughters of the accused/appellant, aged about 15, 14, 13, 8 and 5 years respectively at the relevant time. It is alleged that on or before 19.2.2012, the accused/appellant and the deceased returned from Nagpur after attending wedding of some of his relatives and on the same day at about 12 pm, the accused/appellant committed murder of his wife Thaneshwari and five minor daughters by causing number of injuries on their vital parts with chopper/knife used by him for cutting hen. On 20.2.2012 merg intimations (Exs. P/19 to P/24) were recorded at the instance of Kejabai (PW-6), mother of the accused/appellant. Thereafter, Dehati Nalishi (Ex.P/l8) was recorded on 20.2.2012 at the instance of Kejabai (PW-6). Numbered merg intimations (Exs. P/38 to P/43) were also recorded on 20.2.2012. On the basis of Dehati Nalishi, FIR (Ex.P/51) was registered against the accused/appellant for the offence punishable under Section 302 of IPC. Inquests were conducted over the bodies of deceased Thaneshwari, Laxmi, Sati, Nisha, Sandhya and Nandini vide Exs. P/4, P/6, P/8, P/10, P/12 and P/14 respectively. The accused/appellant was arrested on 20.2.2012 vide Ex.P/62. Thereafter, memorandum of the accused/appellant was recorded vide Ex.P/15 and pursuant thereto, bloodstained clothes worn by him at the time of incident were seized vide Ex.P/16. Inquests were conducted over the bodies of deceased Thaneshwari, Laxmi, Sati, Nisha, Sandhya and Nandini vide Exs. P/4, P/6, P/8, P/10, P/12 and P/14 respectively. The accused/appellant was arrested on 20.2.2012 vide Ex.P/62. Thereafter, memorandum of the accused/appellant was recorded vide Ex.P/15 and pursuant thereto, bloodstained clothes worn by him at the time of incident were seized vide Ex.P/16. Vide Ex.P/1, two bloodstained pillow covers, plain and bloodstained soil and chopper/knife used in commission of offence, which was lying next to the accused/appellant, who, according to the prosecution, was also lying at the place of incident after committing murder of his wife and children, were seized from the place of occurrence. Postmortem on the bodies of deceased Sati, Nisha and Sandhya was conducted by Dr. Ajaypal Chandrakar (PW-7) vide Exs.P/27, P/28 and P/29 respectively, whereas postmortem on the bodies of deceased Thaneshwari, Laxmi and Nandini was conducted by Dr. Chandrabhan Prasad (PW-14) vide Exs.P/64, P/65 & P/66 respectively. The doctors opined that all the injuries sustained by the deceased were antemortem in nature caused by sharp edged weapon and that cause of death was cardio respiratory arrest due to excessive bleeding on account of the said injuries and the death was homicidal in nature. Vide Ex.P/61 the seized knife was sent to Dr. Chandrabhan Prasad (PW-14) seeking his opinion with regard to presence of blood thereon, possibility of injuries being caused by the seized weapon to the deceased persons and further, possibility of death due to injuries caused by the said weapon. After due examination, he (PW-14) had confirmed presence of blood on the seized knife, however, for ascertaining whether the blood was human blood or not, he advised for chemical examination. He further opined that the injuries leading to death of six persons could be caused by the weapon so seized. As per FSL report (Ex.P/69), blood was found on the Article F & G i.e. clothes of the accused/ appellant and knife seized from the place of occurrence respectively. Further, serological report (Ex.P/72) also confirmed presence of human blood on Article F & G. 5. After completing investigation, charge sheet (Ex.P/74) was filed on 27.4.2012 against the accused/appellant for the offence punishable under Section 302 of IPC followed by charge being framed accordingly. 6. In order to hold the accused/appellant guilty, the prosecution examined altogether 14 witnesses. Further, serological report (Ex.P/72) also confirmed presence of human blood on Article F & G. 5. After completing investigation, charge sheet (Ex.P/74) was filed on 27.4.2012 against the accused/appellant for the offence punishable under Section 302 of IPC followed by charge being framed accordingly. 6. In order to hold the accused/appellant guilty, the prosecution examined altogether 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he pleaded innocence and false implication. 7. Learned trial Court, after hearing counsel for the respective parties and considering the material available on record, convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. 8. Contention of Shri Ravish Verma, learned counsel appearing for the accused/appellant is that the accused/appellant has been convicted solely on the basis of circumstantial evidence, which is not reliable as the chain of circumstances is not complete and therefore, by extending the benefit of doubt, he deserves to be acquitted of the charge. He submitted that from the spot or the weapon used in commission of offence, no finger prints were obtained by the prosecution and thus it cannot be held conclusively that it is the accused/appellant alone who committed murder of his wife and five children. According to learned counsel for the appellant, the appellant was also found lying unconscious in the same room where dead bodies were lying and subsequently shifted to hospital, though the prosecution has not filed any document with respect to the same. Learned counsel has also argued that the appellant has been convicted on the basis of hearsay evidence, which is not at all admissible. Learned counsel has further argued that Jeevan Dewangan,Gangaram and some other villagers to whom Kejabai is alleged to have informed about the incident, were also at the place of incident, but they have not been examined by the prosecution. According to counsel for the accused/appellant how the dead bodies of some of the children sleeping with Kejabai have been found from the room of the accused, has not been proved by the prosecution and that being so the possibility of someone else entering his house and committing murder of his wife and children cannot be ruled out. According to counsel for the accused/appellant how the dead bodies of some of the children sleeping with Kejabai have been found from the room of the accused, has not been proved by the prosecution and that being so the possibility of someone else entering his house and committing murder of his wife and children cannot be ruled out. It is also argued that the prosecution has failed to prove any motive behind commission of such a heinous offence and therefore, in the absence of any legally admissible evidence in this respect, the accused/appellant cannot be held guilty. Lastly, it has been argued that even if conviction of the accused/appellant under Section 302 of IPC is maintained, present is not a case falling in the category of rarest of rare ones, therefore, the death sentence awarded to him may be commuted to life imprisonment. In support of his contention, learned counsel for the accused/appellant has placed reliance on the judgments rendered in the matters of Ramnaresh and others Vs. State of C.G. (2012) 4 SCC 257 ., Sandesh @ Sainath Kailash, Abhang Vs. State of Maharashtra, (2013) 2 SCC 479 , Sangeet and another Vs. State of Haryana, (2013) 2 SCC 452 , and State of Maharashtra Vs. Goraksha Ambaji Adsul, (2011) 7 SCC 437 . 9. On the other hand, Shri Praveen Das, learned counsel for the State supporting the impugned judgment has argued that immediately after witnessing the gruesome incident, Kejabai (PW-6) rushed out of the house, cried for help and narrated the entire incident to the villagers namely PW-1 Ishwar, PW-2 Santosh Kumar, PW-3 Neelkanth, PW-4 Anjor Singh and PW-5 Dan Singh Dewangan. He has further submitted that the police personnel also reached the place of occurrence immediately and Kejabai narrated the entire incident to them also. He has submitted that the PW-1, PW-2, PW-3 and PW-5 reached the spot immediately after the incident and at that time Kejabai (PW-6) had informed them that the accused/appellant had killed his wife and five daughters. The evidence of these witnesses (PW-1, PW-2, PW-3 and PW-5) regarding statement made by Kejabai immediately after the incident is relevant as well as admissible in evidence under Section 6 of the Evidence Act. Section 6 of the Evidence Act is an exception to the general rule that hearsay evidence is inadmissible. The evidence of these witnesses (PW-1, PW-2, PW-3 and PW-5) regarding statement made by Kejabai immediately after the incident is relevant as well as admissible in evidence under Section 6 of the Evidence Act. Section 6 of the Evidence Act is an exception to the general rule that hearsay evidence is inadmissible. Under this section, the evidence of other witnesses about the statement made by the bystanders immediately after the incident is relevant and admissible. Kejabai (PW-6) - mother of the accused/appellant - herself has stated immediately after the incident that she was also inside the house where the incident took place and that the accused/appellant had killed his wife and daughters. There appears to be no other motive or reason for her to say so and therefore, her statement, in the facts and circumstances, is trustworthy, which further stands corroborated by the statements of PW-1, PW-2, PW-3 and PW-5. 10. It is further argued that on the basis of memorandum of accused/appellant (Ex.P/15), vide seizure memo (Ex.P/16) bloodstained clothes of the accused/appellant were seized and as per seizure memo (Ex.P/1), bloodstained chopper/knife was also seized from the place of occurrence which was lying next to the accused/appellant, on which as per FSL report (Ex.P/69), blood was found, which was further confirmed as human blood as per serological report (Ex.P/72). 11. Learned counsel has further argued that as per evidence of Kejabai (PW-6), the accused/appellant was the only male inmate in the house and the entire family was sleeping after bolting the door from inside, therefore, the question of someone else entering the house does not arise. While referring to the statement of Kejabai made in para-8 of her examination-in-chief, it has been argued that on the fateful night, apart from the family members, there was no other person in the house. Once the brutal murder of six persons has taken place inside the house, it is for the accused/appellant to explain as to how such incident had taken place, but no explanation has been offered by him in his statement under Section 313 of Cr.P.C. He has further submitted that the postmortem reports of the deceased persons reveal that more than 27 incised wounds were caused on the vital organs of the deceased persons resulting in their instantaneous death. Neither any defence has been taken by the accused/appellant, nor is there any evidence that on the date of incident any dacoity was committed in his house. On the contrary, Santosh Kumar Mahar (PW-2) in para- 18 of his evidence has stated that it is incorrect to say that dacoits had come in their village and committed murder of appellant's wife and daughters. Thus, considering the brutal act of the accused/appellant, the trial Court has rightly awarded death sentence to him as the case squarely falls within the ambit of rarest of rare cases. Reliance has been placed on the judgments in the matters of Samar Vijay Singh 'Tomar and another Vs. State of C.G. and other connected appeals, 2006 (1) CGLJ 353, Neel Kumar @ Anil Kumar Vs. State of Haryana, 2012 (3) CGLJ 312 (SC) and Manmohan Vs. State of M.P. (Now C.G.) 2012 (4) CGLJ 384 (DB). 12. Heard learned counsel for the parties, perused the material available on record, including the impugned judgment. 13. Ishwar Pradhan (PW-1) has stated that he was Sarpanch of Gram Panchayat-Mohandipat where he resided, that he knew accused/appellant Dhal Singh as he too was resident of the same village. He also knew accused/appellant's mother Kejabai as well as his wife and five daughters, who have been killed. He has stated that on the date of incident at about 10.30 pm, when he was in his house, Santosh Kumar (PW-2 Kotwar of the village) came to him and informed that the accused/appellant had killed his wife and five children. He has further stated that on receiving the said information, he immediately went to Gandhi Chowk on his motorcycle where he met Neelkanth Sahu, Dan Singh Dewangan, Kejabai and Jhaggar. According to him, Kejabai, mother of the accused/appellant, informed him that the accused/appellant killed his wife and children. Thereupon, he reached the house of the accused/appellant, where he saw blood near the door of accused/appellant's room. Thereafter, they bolted the door from outside leaving the accused/appellant inside the house. Subsequently, the matter was reported to the police and after arrival of the police, Kejabai further informed them as to the manner in which the accused/appellant killed his wife and children. Thereafter the accused/appellant was sent to hospital in semi-conscious condition, whereas bodies of the deceased persons were sent for postmortem. Subsequently, the matter was reported to the police and after arrival of the police, Kejabai further informed them as to the manner in which the accused/appellant killed his wife and children. Thereafter the accused/appellant was sent to hospital in semi-conscious condition, whereas bodies of the deceased persons were sent for postmortem. Upon being questioned by the Court, he had confirmed names of all the six deceased persons. In his cross-examination, this witness (PW1) remained very firm and reiterated as to the manner in which the entire incident was disclosed to him by Kejabai and other persons. 14. Santosh Kumar Mahar (PW-2), who was Kotwar of the village, has stated that he knew the accused/appellant, who was in the business of selling hen after chopping the same. He has stated that on 19.2.2012 at about 11 pm, neighbour of the accused/appellant Jeevan Dewangan came to him and informed that the accused/appellant had killed his wife and children with chopper (knife used by him for cutting hen). Thereafter, he went to the house of the accused/ appellant and saw the accused/appellant lying unconscious in his room, where his four children were also lying dead. According to him, one knife/chopper was also lying in the said room whereas dead body of one child was lying in the room of Kejabai. There were incised wounds over hands, legs and neck of the deceased persons and blood was spread all over the room and verandah. He has stated that thereafter, the matter was reported to the police. Smt. Kejabai (PW-6) was questioned by the police, whereupon she informed that it is the accused/appellant who had committed murder of his wife and five children. He is also a witness to the seizure memo Ex.P/1, by which weapon of offence knife/chopper, bottle of liquor, bloodstained pillow covers, plain and bloodstained soil were seized from the place of incident. He is also a witness to the seizure memo Ex.P/2 whereby plain and bloodstained soil were seized from the place of occurrence. He has also proved spot map Ex.P/4, inquest reports (Exs.P/6, P/8, P/10, P/12, P/14) of the deceased persons namely Laxmi, Sati, Nisha, Sandhya and Nandini respectively. He is also a witness to the memorandum statement of Ex.P/15 given by the accused/appellant. He has also proved seizure memo Ex.P/16 by which bloodstained clothes of the accused/appellant worn by him at the time of incident were seized. He is also a witness to the memorandum statement of Ex.P/15 given by the accused/appellant. He has also proved seizure memo Ex.P/16 by which bloodstained clothes of the accused/appellant worn by him at the time of incident were seized. In his cross-examination, he has denied the suggestion that the wife and the children of the accused/appellant were killed by dacoits. 15. Neelkanth Sahu (PW-3) is a villager, who also came to know about the incident just after it happened. He has stated that he was informed by Gangaram Sahu and Chaitram that the accused/appellant has killed his wife and five daughters. He has stated that Kejabai, mother of the accused/appellant, gave this information to Gangaram Sahu and Chaitram. On receiving this information, he proceeded towards the place of occurrence, however, on the way near Gandhi Chowk he met Village Kotwar Santosh (PW-2), Sarpanch Ishwar (PW-1), Dan Singh Dewangan, Jhaggar Sahu, Vijay Sahu, Gangaram Sahu, Chiatram Yadav and Kejabai. At that time, Kejabai was crying and informed him that it is the accused/appellant, who had killed his wife and five children. He has stated that all of them had gone to the house of the accused/ appellant alongwith Kejabai and seen blood spots in the veranda. Thereafter, door of the accused/appellant's house was bolted from outside and the police was informed about the incident. He is also a witness to seizure memo Ex.P/1 and P/2 whereby bloodstained knife, pillow covers as well as plain and bloodstained soil were seized from the place of occurrence. He is also a witness to the memorandum statement Ex.P/15 of the accused/appellant as well as seizure of the articles seized under seizure memo Ex.P/16. In his cross-examination, this witness also remained very firm. 16. Anjor Singh Dewangan (PW-4), who is father-in-law of deceased Thaneshwari, while supporting the prosecution case, has stated that his daughter Thaneshwari (since deceased) was married to the accused/appellant about 17-18 years back and out of their wedlock, they had five daughters. He has further stated that on 20.2.2012, he had returned from Nagpur after attending one wedding and was informed by the villagers that his daughter was not well. When he alongwith his wife Gomtibai reached Village-Mohandipat, he found Kejabai (PW-6) weeping there and she informed him that all his grand-daughters had been killed. However, at that time, she (Kejabai) did not inform him as to who had killed them. When he alongwith his wife Gomtibai reached Village-Mohandipat, he found Kejabai (PW-6) weeping there and she informed him that all his grand-daughters had been killed. However, at that time, she (Kejabai) did not inform him as to who had killed them. Thereafter, he went to the house of the accused/appellant and saw blood in the rooms. Subsequently, he came to know that it is the accused/appellant who had committed murder of his wife and five daughters by chopper/knife used for cutting hen. He has further stated that the accused/appellant and his wife Thaneshwari (since deceased) had also 'attended the wedding at Nagpur where on 16.2.2012, his daughter Thaneshwari had informed him about the family dispute and that the accused/appellant used to beat her by saying that he had a big family and having daughters only. According to this witness, at Nagpur also there was some quarrel between accused/appellant and the deceased namely Thaneshwari and after attending the wedding, the accused/appellant returned to his house alongwith his family members. 17. Dan Singh Dewangan (PW-5), who appears to be step-father of the accused/appellant, has stated that he has two wives, first is Kuntibai and second Kejabai. He was residing with his first wife Kuntibai, his daughter-in-law and grand-children in the same village at a different place, whereas his second wife Kejabai was residing with the accused/appellant and his family. He has stated that he also attended the wedding at Nagpur on or about 15/16th February, 2012, where the accused/appellant, his wife Thaneshwari and two daughters (Sandhya & Nandini) had also come. He has stated that at Nagpur, he came to know that there was some quarrel between the accused/appellant and his wife Thaneshwari and thereafter he had returned to his village. On the date of incident at about 12 in the night, Village Kotwar Santosh Kumar, Chaitram, Gangaram and Village Sarpanch called him and thereafter alongwith these persons, he had gone to Kejabai, who informed them as to the manner in which the accused/appellant killed his wife and five daughters. Thereafter, he saw the place of occurrence and then the matter was reported to the police by Kotwar, Village Sarpach and Chaitram. He has also described the injuries sustained by the deceased persons. He is also a witness to inquests Exs.P/10, P/4, P/6, P/14, P/12 & P/8 conducted over the bodies of deceased Nisha, Thaneshwari Bai, Laxmi, Nandini, Sandhya and Sati respectively. He has also described the injuries sustained by the deceased persons. He is also a witness to inquests Exs.P/10, P/4, P/6, P/14, P/12 & P/8 conducted over the bodies of deceased Nisha, Thaneshwari Bai, Laxmi, Nandini, Sandhya and Sati respectively. He has also proved the spot map Ex.P/17 prepared by the Patwari. 18. PW-6 Kejabai - mother of the accused/appellant - though has been declared hostile, she has proved the fact that his daughter-in-law Thaneshwari and five grand-daughters were killed on the date of incident. She has stated that she was sleeping in her room alongwith four daughters whereas the accused/appellant was sleeping in his room with his wife and youngest daughter Sandhya. She has stated that in the night, when she woke up for having water, she saw her grand-daughter Sandhya lying in unconscious condition in front of room of the accused/appellant and thereafter, she came out of the house screaming. She has further stated that she is not aware as to what she was shouting at that time as she was not in her proper senses and was screaming like mad. She has stated that she is not aware as to what she had disclosed to the villagers. Though this witness has denied lodging of merg intimations Ex.P/19 to P/24, she has admitted her signatures on all these documents. She has further admitted her signatures on the spot map (Ex.P/25) prepared by the police as well as spot map (Ex.P/17) prepared by Patwari. In para - 7, she has stated that after seeing deceased Sandhya, she came out of the house after opening the door, which was bolted from inside. However, in para-8, she has stated that on the date of incident, only her family members were there in the house and no outsider had come there. She has further admitted the fact that her statement under Section 164 of Cr.P.C. was recorded vide Ex.P/67, however, there are some discrepancies in the said statement as certain portion of it was not made by her. 19. Dr. She has further admitted the fact that her statement under Section 164 of Cr.P.C. was recorded vide Ex.P/67, however, there are some discrepancies in the said statement as certain portion of it was not made by her. 19. Dr. Ajay Pal Chandrakar (PW-7) had conducted postmortem on the body of deceased Sati and as per postmortem report Ex.P/27 had noticed following injuries: (i) One deep incised wound at the back side of joint of skull and neck in the size of 6" x 3", (ii) One incised wound over right hand at the base of middle finger and index finger to wrist joint, of size 5" x 2.5". Both the injuries were caused by sharp edged weapon. In his opinion, cause of death was cardio respiratory arrest due to excessive bleeding on account of the said injuries. All the injuries were antemortem and the death was homicidal in nature. He (PW -7) had also conducted postmortem on the body of deceased Nisha and vide postmortem report Ex.P/28 had found the following injuries: (i) one deep incised wound at the joint of skull and neck region of size 7" x 4", (ii) one incised wound at the joint of right hand wrist of size 4" x 3"; (iii) one incised wound below the right hand elbow joint of size 3" x 1"; (iv) one incised wound over right arm of size 2" x 2"; All the injuries were antemortem and caused by sharp edged weapon. Cause of death was opined as cardio respiratory arrest due to excessive bleeding on account of the said injuries and the death was homicidal in nature. This witness (PW -7) had also conducted postmortem over the body of deceased Sandhya and as per postmortem report Ex.P/29, he had found that there was one incised wound on the back of neck of the deceased at the joint of skull in the size of 6" x 2", from left to right side of neck region and all blood vessels were cut. He opined that the cause of death was excessive bleeding on account of above injury and shock due to cardio respiratory arrest. All the injuries were antemortem, caused by sharp edged weapon and death was homicidal in nature. 20. Dr. He opined that the cause of death was excessive bleeding on account of above injury and shock due to cardio respiratory arrest. All the injuries were antemortem, caused by sharp edged weapon and death was homicidal in nature. 20. Dr. Chandrabhan Prasad (PW-14) had conducted postmortem on the body of deceased Theneshwari and vide Ex.P/64 had noticed the following injuries: (i) deep incised wound below left lower costal region of size 1" x ¼”, intestines visible through wound; (ii) deep incised wound below right costal region of size 2" x 1" horizontal, intestines visible; (iii) deep incised wound over left lower costal region horizontal, of size 2" x ½"; (iv) deep incised wound over left dorsal hand of size 3" x 2" horizontal; (v) deep incised wound over left axillary fossa of size 1" x ½"; (vi) deep incised wound over right dorsal hand of size 3" x ½" horizontal; (vii) deep incised wound over left temporal region of skull of size 2" x ½"; (viii) deep incised wound over right dorsal and palm hand of size 5" x 4", carpal bone cut; (xi) deep incised wound over left side of nose; (x) deep incised wound over left eyebrow obliquely placed upto nose of size 4" x 2" The cause of death was acute hemorrhagic shock due to multiple injuries, all the injuries were antemortem and death was homicidal in nature. He also conducted autopsy over the dead body of Laxmi vide postmortem report Ex.P/65, wherein he noticed the following injuries: (i) deep incised wound over right dorsal hand of size 2" x ½" x ½", whole face and hand blood stained; (ii) deep incised wound over left buttock of size 2" x ½"; (iii) deep incised wound over left cheek of size 1" x ½"; (iv) deep incised wound over right nose upto ear; (v) deep incised wound over right wrist of size 1" x ½"; (vi) nape of neck 50% cut; (vii) deep incised wound over right face of size 2" x ½"; (viii) deep incised wound over right shoulder of size 1" x ½". The cause of death was acute hemorrhagic shock due to multiple injuries, all the injuries were antemortem and death was homicidal in nature. The cause of death was acute hemorrhagic shock due to multiple injuries, all the injuries were antemortem and death was homicidal in nature. He had also conducted postmortem over the dead body of Nandini vide Ex.P/66, wherein he had found that there was one deep incised wound over occipital region of size 5" x ½” x ¼”The cause of death was acute hemorrhagic shock due to head injury which was antemortem and the death was homicidal in nature. He (PW-7) had also given certain query reports regarding presence of blood on the clothes of the deceased persons as well as the accused/appellant, which were sent to him. However, for confirmation as to whether the blood present on the seized clothes was human blood or not, he had advised for chemical examination of the bloodstained articles. 21. Ramprasad Gajbihe (PW-8), who is a Head Constable, is a witness to seizure memo (Ex.P/33), by which clothes of the deceased were seized. Avan Sahu, Constable, (PW-9) had sent copy of the first information report to the Court of JMFC, Gunderdehi. Manish Dehre, Patwari, (PW-10), who had prepared the spot map (Ex.P/17) after receiving memo from the police vide Ex.P/35, has duly proved and supported the prosecution case. Hemant Kumar Dewangan (PW-11) is a witness of inquest notices Exs.P/3, P/5, P/7, P/9, P/11 & P/13. He is also a witness to the site plans Exs.P/10, P/4, P/6, P/14, P/12 & P/8. Bahur Singh Yadav, Constable (PW-12) handed over the dead bodies to the relatives after postmortem. Sub Inspector - Krishna Murari Mishra (PW-13) is the investigating officer, who has duly supported and proved the prosecution case. 22. It is a well settled principle of law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. 23. Minute examination of the evidence, oral and documentary available on record, makes it clear that that on 19.2.2012 the accused/appellant had killed his wife and five daughters by causing them number of injuries on their vital parts by chopper/knife used for cutting hen. 24. 23. Minute examination of the evidence, oral and documentary available on record, makes it clear that that on 19.2.2012 the accused/appellant had killed his wife and five daughters by causing them number of injuries on their vital parts by chopper/knife used for cutting hen. 24. As per deposition of Kejabai (PW-6), on the fateful night, the accused/ appellant was the only male member in his house and he was sleeping alongwith his wife Thaneshwari and youngest daughter Sandhya, whereas Kejabai was sleeping with his four daughters in a separate room and door of the house was bolted from inside. Thus the possibility of entry by some stranger in the house of the accused/appellant is not there. Since the accused/appellant was the only inmate of the house, it is for him to explain as to how six dead bodies have been found there. However, no such explanation has been offered by him in his statement under Section 313 of Cr.P.C. As per Section 106 of the Evidence Act, it is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 of Cr.P.C. Keeping silent and not furnishing any explanation is an additional link in the chain of circumstances to sustain the charges against him. Furthermore, as per FSL report Ex.P/69, blood was found on the clothes of the accused/appellant and the weapon of offence chopper/knife and as per serological report Ex.P/72, the blood present on the clothes and the knife was found to be human blood. 25. The evidence of Kejabai (PW-6) also makes it clear that upon seeing the dead body of Sandhya, she came out of the house screaming. This witness has expressed her ignorance as to the things disclosed by her to the villagers. However, from the statements of PW-l, PW-2, PW-3 and PW-5, it is apparent that immediately after the incident, Kejabai informed them that it is the accused/appellant who killed his wife and five daughters. These witnesses have categorically stated that immediately after the incident they came to know about the commission of murder by the accused/appellant and they also remained firm in their cross-examination. 26. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. These witnesses have categorically stated that immediately after the incident they came to know about the commission of murder by the accused/appellant and they also remained firm in their cross-examination. 26. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res jestae is that the statement should be spontaneous and should form part of the same transaction, ruling out any possibility of concoction. In Gentela Vijayawardhan Rao Vs. State of Andhra Pradesh AIR 1996 SC 2791 , it was held thus: "Section 6 of the Evidence Act and some of the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to "hearsay" rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it." 27. After minute examination of the evidence of PW-1, PW-2, PW-3 and PW-5, we are of considered view that the same is admissible under Section 6 of the Evidence Act as resjestae. For these witnesses, there was no occasion for concoction or improvement by any means at that juncture. The fact that immediately after seeing the dead body Kejabai came out of the house and narrated the incident to the villagers has been duly proved by these witnesses. 28. We find no force in the argument of learned counsel for the appellant that there are major contradictions and omissions in the statements of PW-1, PW-2, PW-3 and PW-5. The fact that immediately after seeing the dead body Kejabai came out of the house and narrated the incident to the villagers has been duly proved by these witnesses. 28. We find no force in the argument of learned counsel for the appellant that there are major contradictions and omissions in the statements of PW-1, PW-2, PW-3 and PW-5. These witnesses are rustic villagers, their court statements were recorded more than after six months of the incident and therefore, the contradictions and omissions present in their statements being minor in nature can safely be ignored. 29. Further, we find no force in the argument of counsel for the appellant that finger prints of the appellant were not taken by the police, therefore, he cannot be convicted for commission of murder. When there is other clinching evidence available against the appellant which directly go to show that it is the appellant who committed murder, than not taking his fingerprints is not fatal to the case of the prosecution. Most importantly, the offence took place in the village where normally experts are not available to take finger prints. 30. We also find no force in the argument of counsel for the appellant that the police has not produced medical report of the appellant clarifying his position as to how he fell unconscious when bodies of the deceased persons were recovered from his house and what treatment was given to him in hospital. It appears that during killing of six persons and after seeing their blood, the accused/appellant might have tired or lost his mental balance. In such a situation, even if the appellant was lying unconscious near the dead bodies, it hardly makes any difference for proving his involvement in commission of the offence. It is not the case of the defence that some third person had entered the house, assaulted the appellant and then committed murder of six persons. Thus taking into consideration cumulative effect of the entire evidence, this Court has no hesitation in holding the accused/appellant guilty of committing murder of his wife and five daughters. Thus conviction under Section 302 of IPC recorded by the trial Court suffers from no illegality or infirmity and the same deserves to be affirmed. 31. Now the next point for consideration is the quantum of sentence. 32. The Court below has awarded death sentence to the accused/appellant. Thus conviction under Section 302 of IPC recorded by the trial Court suffers from no illegality or infirmity and the same deserves to be affirmed. 31. Now the next point for consideration is the quantum of sentence. 32. The Court below has awarded death sentence to the accused/appellant. Now, we have to examine as to whether the trial Court was justified in awarding death sentence to the accused/appellant. Section 354(3) of Cr. P.C. postulates for assigning special reasons for awarding death sentence. 33. While dealing with the quantification of the sentence in the cases of like nature, the Supreme Court has observed in the matter of Ramnaresh and others Vs. State of Chhattisgarh, that it is neither possible nor prudent to state any universal formula which would be applicable to all the cases of criminology where capital punishment has been prescribed. It shall always depend upon the facts and circumstances of a given case. The Supreme Court has, stated various legal principles which would be precepts on exercise of judicial discretion in cases where the issue is whether the capital punishment should or should not be awarded. The law requires the court to record special reasons for awarding such sentence. The court, therefore, has to consider matters like nature of the offence, how and under what circumstances it was committed, the extent of brutality with which the offence was committed, the motive for the offence, any provocative or aggravating circumstances at the time of commission of the crime, the possibility of the convict being reformed or rehabilitated, adequacy of the sentence of life imprisonment and other attendant circumstances. These factors cannot be similar or identical in any two given cases. It has further been observed by the Apex Court that it is imperative for the court to examine each case on its own facts, in light of the enunciated principles. It is only upon application of these principles to the facts of a given case that the court can arrive at a final conclusion whether the case in hand is one of the "rarest of rare" cases and imposition of death penalty alone would serve the ends of justice. Further, the court would also keep in mind that if such a punishment alone would serve the purpose of the judgment, in its being sufficiently punitive and purposefully preventive. 34. Further, the court would also keep in mind that if such a punishment alone would serve the purpose of the judgment, in its being sufficiently punitive and purposefully preventive. 34. In order to ascertain whether the imposition of death sentence in the case in hand would be justified or not, it would be apposite to refer to some of the judicial pronouncements of the Supreme Court, which are adumbrated as under: 35. In State of Maharashtra Vs. Goraksha Ambaji Adsul, the Supreme Court from paras 30 to 41 observed thus: "30. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab (1980 SCC (Cri) 580). Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The court is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in the case and the impact of awarding punishment. These are the nuances which need to be examined by the court with discernment and in depth. 31. The legislative intent behind enacting Section 354(3) Cr.PC clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law's instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the court would also take into consideration the mitigating circumstances and their resultant effects. 32. The language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, 'in the case of sentence of death, the special reasons for such sentence' unambiguously demonstrate the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception. Even the exception must satisfy the prerequisites contemplated under Section 354(3) CrPC in light of the dictum of the Court in Bachan Singh. 33. The Constitution Bench judgment of this Court in Bachan Singh has been summarised in para 38 in Machhi Singh v. State of Punjab [ (1983) 3 SCC 470 ] and the following guidelines have been stated while considering the possibility of awarding sentence of death: (Machhi Singh case, SCC p. 489) '(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 requires to be taken into consideration along with the circumstances of the "crime". (iii) Life imprisonment is the rule and death sentence is an exception. ... 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.' 34. The judgment in Bachan Singh, did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the Court while determining such serious issues and they are as follows: (-SCC p. 750, para 206) "206. ... "Mitigating circumstances.- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. ... "Mitigating circumstances.- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) 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." 35. Now, we may examine certain illustrations arising from the judicial pronouncements of this Court. 36. In D.K. Basu v. State of W.B. [ (1997) 1 SCC 416 ], this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case. 37. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [ (2009) 6 SCC 498 ] this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was no evidence to show that the criminals were incapable of reforming themselves, that it was not a rarest of the rare case, and therefore; declined to award death sentence to the accused. 38. The Court felt that there was no evidence to show that the criminals were incapable of reforming themselves, that it was not a rarest of the rare case, and therefore; declined to award death sentence to the accused. 38. Interpersonal circumstances prevailing between the deceased and the accused, was also held to be a relevant consideration in Vashram Narshibhai Rajpara v. State of Gujarat [ (2002) 9 SCC 168 ] where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this Court in different cases. 39. This Court in Satishbhushan Bariyar [ (2009) 6 SCC 498 ] also considered various doctrines, principles and factors which would be considered by the courts while dealing with such cases. The Court discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weight age to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver. 40. Basing its reasoning on the application of doctrine of prudence and the version put forward by the accused, the Court, while declining to award death penalty and only awarding life imprisonment, held as under: (Satishbhushan Bariyar case, SCC pp. 551 & 559-60, paras 135, 168-69 & 171-73) ‘135. 40. Basing its reasoning on the application of doctrine of prudence and the version put forward by the accused, the Court, while declining to award death penalty and only awarding life imprisonment, held as under: (Satishbhushan Bariyar case, SCC pp. 551 & 559-60, paras 135, 168-69 & 171-73) ‘135. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realise the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist. * * * 168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or is dependent upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible; the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view the evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-a-vis the role played by the accused, on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine. 169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. 169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. Further, if age of the accused was a relevant factor for the High Court for not imposing death penalty on Accused 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto. * * * 171. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character of death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality. 172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analysed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the "rarest of the rare" case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category. 173. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of the appellant (A-1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed.' 41. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the courts within the parameters spelt out under Section 354(3) CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty." 36. In Ramnaresh and others (supra) the Apex Court taking support from its earlier decisions running in paragraphs 61 to 67 and 72 to 74 rendered in the cases of similitude has held as under: "61. In Machhi Singh v. State of Punjab [ (1983) 3 SCC 470 ] this Court stated certain relevant considerations like the manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and the personality of the victim of murder. These considerations further demonstrate that the matter has to be examined with reference to a particular case, for instance, murder of an innocent child who could not have or has not provided even an excuse, much less a provocation for murder. These considerations further demonstrate that the matter has to be examined with reference to a particular case, for instance, murder of an innocent child who could not have or has not provided even an excuse, much less a provocation for murder. Similarly, murder of a helpless woman who might be relying on a person because of her age or infirmity, if murdered by that person, would be an indicator of breach of relationship or trust as the case may be. It would neither be proper nor probably permissible that the judicial approach of the court in such matters treat one of the stated considerations or factors as determinative. The court should examine all or majority of the relevant considerations to spell comprehensively the special reasons to be recorded in the order, as contemplated under Section 354(3) CrPC. 62. In Dhananjoy Chatterjee v. State of W.B. [ (1994) 2 SCC 220 ] while affirming the award of death sentence by the High Court, this Court noticed that: (SCC p. 239, para 14) "14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern." The Court reiterated the principle that it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of the crime, as also the society, has the satisfaction that justice has been done to it. 63. The Court held as follows: (Dhananjoy Chatterjee case, SCC p. 239, para 15) "15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 64. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 64. In Dhananjoy Chatterjee case, the Court was concerned with the case of a security guard who had been transferred at the complaint of a lady living in the flats with regard to teasing of her young girl child. The security guard went up to the flat of the lady, committed rape on her daughter and then murdered her brutally. The Court found it to be a fit case for imposition of capital punishment. 65. Again, in Surja Ram v. State of Rajasthan [(l996) 6 SCC 271] this Court affirmed the death sentence awarded by the High Court primarily taking into consideration that there was no provocation and the manner in which the crime was committed was brutal. Noticing that the Court has to award a punishment which is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also to the rights of the victims of the crime to have the assailant appropriately punished and the society's reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. 66. The Court further held as under: (Surja Ram case, SCC p. 279, para 18) "18. After giving our anxious consideration to the facts and circumstances of the case, it appears to us that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Mc Gautha v. California [(28 L Ed 2d 711 : 402 US 183 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. It has been very aptly indicated in Mc Gautha v. California [(28 L Ed 2d 711 : 402 US 183 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished." 67. This Court in Prajeet Kumar Singh v. State of Bihar [ (2008) 4 SCC 434 ], B.A. Umesh v. High Court of Karnataka [ (2011) 3 SCC 85 ], State of Rajasthan v. Kashi Ram [ (2006) 12 SCC 254 ] and Atbir v. Govt. of NCT of Delhi [ (2010) 9 SCC 1 ] had confirmed the death sentence awarded by the High Courts for different reasons after applying the principles enunciated in one or more aforereferred judgments. 72. The above judgments provide us with the dicta of this Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances. 73. Most of the heinous crimes under IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death alone should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while "death" would be the exception. The term "rarest of rare" case which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. 74. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression "special" has to be given a definite meaning and connotation. "Special reasons" in contradistinction to "reasons" simpliciter conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. 37. The law contemplates recording of special reasons and, therefore, the expression "special" has to be given a definite meaning and connotation. "Special reasons" in contradistinction to "reasons" simpliciter conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. 37. The legal position existing as on date right from Bachan Singh and thereafter, in Machhi Singh stands on two compartments - one being the "aggravating circumstances" while the other being the "mitigating circumstances" and that way the court would consider the cumulative effect of both these aspects. Normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise regarding the sentencing policy which would help to administer the criminal justice system in an effective and meaningful way as contemplated under Section 354(3) CrPC. What are the aggravating and mitigating circumstances to decide a particular case have been prescribed by the Apex Court as under: Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. - (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. 38. In Ramnaresh and others (supra) while determining the questions relatable to sentencing policy, the Apex Court has held that the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles (1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime. 39. In Dhananjoy Chatterjee Vs. State of W.B., (1994) 2 SCC 220 , the Supreme Court dealt with a case of rape and murder of a young girl of about 18 years. The Court opined that a real and abiding concern for the dignity of human life is required to be kept in mind by courts while considering the confirmation of the sentence of death but a cold-blooded and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment. Paras 14 and 15 of the judgment would indicate that the Supreme Court was more on crime test, not on criminal test, which are extracted below: "14. Paras 14 and 15 of the judgment would indicate that the Supreme Court was more on crime test, not on criminal test, which are extracted below: "14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 40. In Laxman Naik Vs. State of Orissa (1994) 3 SCC 381 , the Supreme Court again confirmed the death sentence on an accused for the offence of rape followed by murder of 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. In Laxman Naik Vs. State of Orissa (1994) 3 SCC 381 , the Supreme Court again confirmed the death sentence on an accused for the offence of rape followed by murder of 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, the accused with a view to screen the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting no punishment other than capital punishment. 41. In Molai and another Vs. State of M.P., (1999) 9 SCC 581 , the Supreme Court held as under: "36. We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various decisions of this Court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely falls in the category of one of the rarest of rare cases, and if this be so, the courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned Counsel for the accused (appellants) could not point any mitigating circumstances from the record of the case to justify the reduction of sentence of either of the accused. Learned Counsel for the accused (appellants) could not point any mitigating circumstances from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below." 42. In Bantu Vs. State of U.P., (2008) 11 SCC 113 , where a minor girl of five years was raped and murdered, the Supreme Court confirmed the death sentence following the principles laid down in Bachan Singh and pointed out that when the victim of the murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, it is a vital factor justifying award of capital punishment. 43. In Shivaji Vs. State of Maharashtra, (2008) 15 SCC 269 , where the accused, a married man having three children, was known to family of the deceased, committed murder of a girl of 9 years in a horrendous manner after ravishing her, he was awarded capital punishment after applying the "balancing test". 44. In the case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, (2012) 4 SCC 37 , the Supreme Court in para 37 & 38 observed thus: "37. When the Court draws a balance-sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. 38. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of 'trust-belief' and 'confidence', in which capacity he took the child from the house of PW2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness." 45. The accused was holding the child in a relationship of 'trust-belief' and 'confidence', in which capacity he took the child from the house of PW2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness." 45. Keeping in view the above legal position enunciated by the Supreme Court, it would be appropriate to consider and discuss the aggravating and mitigating circumstances of the case in hand to adjudicate as to whether the present case falls in the category of rarest of rare ones or not. 46. In the present case, the appellant committed murder of his five innocent children of tender age and wife when they were asleep, without there being any fault on their part. The act of the accused where he butchered his wife and five children like chicken speaks a lot about his perverted mentality which can simply be termed inhumane treatment and torture to the victims. Being a father and husband, it was the moral responsibility of the appellant to take care of his small children and wife, but instead he chose to end their life in a most brutal and diabolical manner. Five children and wife of the appellant were sleeping in the house with a complete sense of security without any danger lurking from outside, but all of a sudden they were subjected to atrocious brutality by the appellant, which is not at all worthy of forgiveness. Record does not make a single whisper as to any provocation to the accused/appellant to assume such an animalism killing his own kiths and kins. The mere fact that all the five children of the appellant were girls and were given birth by their mother i.e. wife of the appellant, cannot be termed as provocation for the appellant to commit their murder. Defence has not collected any material to show that on account of being driven by acute poverty or any financial crisis the accused took such a step replete with utmost brutality. Since at the relevant time it is only the accused, his mother and the deceased persons who were resting themselves in the house, it cannot be gathered that the offence was committed by a person other than the accused/appellant. Since at the relevant time it is only the accused, his mother and the deceased persons who were resting themselves in the house, it cannot be gathered that the offence was committed by a person other than the accused/appellant. Moreover, at the time of incident the accused/appellant was aged about 37 years and there is no evidence on record to show that he was suffering from any mental deformity. The act attributed to him where he cut to pieces his innocent wife and tender aged children does not entitle him to any lenient or sympathetic consideration in awarding the sentence. The circumstances if considered in a composite compass go to show that the chances of his reformation and rehabilitation are next to nothing, and a meaningless assumption in other words. 47. To conclude, the appeal fails, conviction and sentence awarded by the trial Court are affirmed. The office reference is hereby allowed whereas the appeal preferred by the accused stands dismissed. Reference Allowed.