Hon'ble MATHUR, J.—By judgment dated 20.01.2012, the Additional Sessions Judge (Fast Track), Dungarpur recorded conviction of accused Devilal son of Shankar for an offence punishable under Section 302 Indian Penal Code and awarded death sentence. The proceedings are submitted to this Court as per provisions of Section 366(1) Code of Criminal Procedure. To challenge the conviction recorded and sentence awarded the accused has preferred two appeals, one through counsel and second from Jail. 2. The facts of the case as detailed under the judgment impugned are that on 14.5.2003 at about 02:00 AM, Smt. Pushpa (PW-20) submitted a written report to the Station House Officer of Police Station Ganeshpur at her own residence. As per the report, Smt. Pushpa entered into a wedlock with Devilal about 6-7 years earlier. She also gave birth to a girl child in the matrimony. Devilal was not happy with birth of girl child, therefore, he started harassing her by several means and also by keeping one another woman viz. “Sajudi” by solemnizing “nata”. Since last Deepawali Pushpa was living with her parents and she also lodged a case against Devilal alleging her harassment and torture. On 13.5.2003, her father Kanji, mother Dauli and brother Pappu after having dinner slept in court yard of the house. Smt. Pushpa and her daughter were sleeping in a closed room. In night at about 11:00 PM Pushpa heard some noise, thus, she looked out from slit available on the door and found that her husband Devilal was giving sword blows to Kanji, Dauli and Pappu resulting into their death. A loud cry was made by Pushpa and hearing that her uncle Bharata rushed towards the spot of occurrence. Pushpa too came out to the court yard where three dead bodies were lying. Accused Devilal fled from the spot. Bharata also saw Devilal escaping from the spot of occurrence with sword. 3. On basis of the information given, a case was lodged and investigation commenced. During the course of investigation the persons of Shri Kanji, Smt. Dauli and Shri Pappu were subjected to autopsy. Statements of Smt. Pushpa and Bharata as per provisions of Section 161 Cr.P.C. were drawn. Accused Devilal was arrested and on basis of the information given by him as per provisions of Section 27 of the Indian Evidence Act, a sword and its cover “myan” were recovered. 4. Statements of Smt. Pushpa and Bharata as per provisions of Section 161 Cr.P.C. were drawn. Accused Devilal was arrested and on basis of the information given by him as per provisions of Section 27 of the Indian Evidence Act, a sword and its cover “myan” were recovered. 4. After completing necessary investigation, a police report was filed before the competent court and the case was committed to the court of Sessions. The court of Sessions framed a charge for commission of an offence punishable under Section 302 Indian Penal Code against the accused and on denial of the same trial commenced, as desired. 5. During the course of trial, statements of 19 witnesses PW-1 to PW-19 were recorded and documents P/1 to P/65 were exhibited. An opportunity was given to the accused to explain the circumstances adverse to him available in prosecution evidence. While availing the same, he stated that due to vengeance he was implicated in the case concerned. No evidence in defence was adduced. 6. The trial court by the judgment dated 12.7.2004, after hearing learned Public Prosecutor and counsel for the accused appellant and also by taking into consideration the written arguments submitted by counsel for the appellant, recorded conviction and awarded sentence for life term imprisonment with a fine of Rs.5000/- and further to undergo one year's simple imprisonment in event of failure to pay the fine. Being aggrieved by the judgment and order dated 12.7.2004, accused appellant preferred an appeal (DB Criminal Appeal No.941/2004) before this Court that came to be disposed of vide judgment dated 17.2.2011. Suffice to mention that the trial court while adjudicating the case did not examine testimony of Smt. Pushpa, the author of first information report and eye witness of the incident as she failed to appear before the court despite calling. The statements of Investigating Officer Shri Shantilal were also not recorded as he died during pendency of the trial. Looking to these facts, the matter was remanded to the trial court with following observations and directions:- “23. The statements of Investigating Officer Shri Shantilal were also not recorded as he died during pendency of the trial. Looking to these facts, the matter was remanded to the trial court with following observations and directions:- “23. In sum and substance, because of the reasons mentioned above, the trial in the instant case can not be said to be a trial in accordance with law, where in spite of availability of evidence collected during the investigation on record, those evidence have not been proved, because of the lapse on the part of the prosecution and where the court failed to secure attendance of the principal witness. In view of the above reasons, the impugned judgment of the trial court is set aside and the matter is remanded to the trial court, for making more efforts for securing the attendance of witness Smt. Pushpa and for recording her statement and further opportunity be granted to the prosecution for proving the documents – arrest memo and the FSL report, by recalling the witness Duli Chand, because of the reason that the Investigating Officer Shanti Lal has died and therefore, his statement was recorded. 24. We may make it clear that, for any reason, if said Duli Cahnd (PW17) is not found then the State may be permitted to produce a witness, who can prove the documents/signature of the I.O. Shanti Chand, who prepared other documents as well as the prosecution may be given sufficient opportunity to prove the FSL report. 25. The trial court is, therefore, directed to comply with the above directions expeditiously and may proceed in accordance with law and pass fresh judgment & order in the matter. The accused-appellant shall remain present before the trial court on 14th March, 2011.” 7. In view of the directions given by this Court, statements of Smt. Pushpa were recorded on 17.8.2011 as PW-20 and testimony of Duli Chand (PW-17) was reexamined. An opportunity was again given to the accused to explain the incriminating material available in the prosecution evidence, including the evidence adduced by PW-17 Duli Chand and PW-20 Smt. Pushpa. Counsel for the accused also submitted written arguments. The trial court after considering the evidence adduced by the prosecution recorded conviction of the accused for an offence punishable under Section 302 Indian Penal Code and awarded capital sentence. 8. Counsel for the accused also submitted written arguments. The trial court after considering the evidence adduced by the prosecution recorded conviction of the accused for an offence punishable under Section 302 Indian Penal Code and awarded capital sentence. 8. In appeal, the argument advanced by counsel for the appellant is that the testimony of Smt. Pushpa is not at all reliable. It is asserted that in night at about 11:00 pm nothing could have been seen by her from a closed room, specially looking to the fact that in the site plan prepared by the investigating agency, no slit with the door of the room is shown. Learned counsel much emphasised on the issue that the instant one is not a crime that may be termed as “rarest of rare”, therefore, awarding of capital punishment is highly unjust. 9. Per contra, learned Public Prosecutor stated that PW-20 Smt. Pushpa being wife of accused Devilal and in view of the fact that in the night of incident sufficient moon light was available, was in position to witness the entire incident and recognise the accused. It is stated that as per site plan, door is shown with a room and i.e. having a slit being wooden. While defending sentence awarded and also pressing the death reference made by the trial court, it is submitted that the accused killed three innocent persons due to personal enmity, therefore, he deserves severest punishment. 10. Heard counsel for the appellant as well as Public Prosecutor. 11. As per the medical evidence available on record, persons of deceased Kanji, Dauli and Pappu were having following injuries:- 1. Kanji - 1. Amputation of left hand at wrist joint with sharp weapon. 2. Amputation of right hand at wrist joint with sharp weapon. 3. Incised wound on lower part of left forearm with open fracture of radius and ulna. 4. Incised wound from right forehead above eye to mid of scalp with fracture of frontal and right parietal bone. 5. Incised wound from left to left eye to behind left ear making flap of scalp and skin. 6. Incised wound 20 cm x 10 cm on left side of abdomen and back of left side of back of chest wall – a stomach & partly intestine is coming out. 7. Incised wound just below the neck on back of chest wall 5 cm x 3 cm x 1.5 cm. 6. Incised wound 20 cm x 10 cm on left side of abdomen and back of left side of back of chest wall – a stomach & partly intestine is coming out. 7. Incised wound just below the neck on back of chest wall 5 cm x 3 cm x 1.5 cm. 2. Dauli - 1. Fracture of upper jaw present and separated from lower jaw. 2. Incised wound from right maxillary (cheek) bone to left angle of upper lip. 3. Sharp cut on mid of tongue. 3.Pappu - 1. Scalp – Incised wound left of forehead to just above right ear. 2. Fracture – Fracture of left and right parietal bone and fracture of frontal bone. 12. As per the medical evidence, cause of death of Shri Kanji is blood loss and antemortem injury to brain, the cause of death of Smt. Dauli is blood loss mainly by the antemortem neck injury and the cause of death of Pappu, a boy of 13 years, is an antemortem brain injury. The medical evidence available on record is sufficient to accept that the death of all the three persons was homicidal. 13. The participation of the accused with the crime in question is sought to be established by the prosecution with the aid of the evidence adduced by eye witness PW-20 Smt. Pushpa; PW-1 Shri Veermal (who reduced in writing the entire incident narrated to him by Smt. Pushpa while submitting written report to the Station House Officer of Police Station Ganeshpur) and PW-7 Bharata, uncle of Smt. Pushpa. Beside the above, other circumstantial and incidental evidence adduced by the prosecution were also taken into consi-deration including the recovery of sword and clothes of deceased persons as well as of the accused. The sword and the clothes were sent for their serological examination to the Forensic Science Laboratory, Udaipur region, Udaipur and as per its report dated 4.7.2003 the clothes of deceased persons and the clothes of accused were stained with “A” group of human blood. No blood stains were found on the sword. Suffice to mention here that as per recovery memo Ex.P/23 the sword was recovered from a well, full of water. 14. PW-20 Smt. Pushpa in most unambiguous terms stated that on the fateful day at about 11:00 PM she saw from a slit available on door that her husband Devilal was killing her father, mother and brother. Suffice to mention here that as per recovery memo Ex.P/23 the sword was recovered from a well, full of water. 14. PW-20 Smt. Pushpa in most unambiguous terms stated that on the fateful day at about 11:00 PM she saw from a slit available on door that her husband Devilal was killing her father, mother and brother. On making cry, his uncle and aunt came to the spot and opened the door. She further stated that her husband Devilal was keeping vengeance due to filing of a case relating to her harassment and torture. This witness was subjected to a detailed cross examination wherein she maintained her version and did not utter anything contradictory to the stand taken by her in chief. It is also relevant to note that the statement of this witness as per Section 161 Cr.P.C. were drawn by the investigating agency immediately after the occurrence of the incident and whatever stated by her at that time under Ex.P/67, is in consonance with her testimony examined by the trial court. The statements of this witness as per provisions of Section 164 Cr.P.C. were also recorded by Additional Chief Judicial Magistrate, Sagwara District Dungarpur on 24.7.2003, wherein too she narrated the same factual position. 15. PW-1 Veermal stated that he wrote the contents of Ex.P/1 as narrated by Smt. Pushpa. The narration reduced in writing is quite straight and in line of the prosecution case. 16. PW-7 Bharata, uncle of Pushpa, stated that on 13.5.2003 at about 11:00 PM, when he was sleeping at his house with his wife Tulsi and children, he heard some noise from the house of his cousin brother, thus, he rushed towards that direction. He saw Devilal running with a sword from the place of occurrence. At the house of his elder brother, he found three bodies lying, those were of Kanji, Dauli and Pappu. He found Smt. Pushpa in a room, who narrated details about killing of three persons by Devilal. This witness also stated that Devilal was keeping vengeance with his in-laws for several reasons and he was keeping “Sajudi” with him. 17. The recovery of blood stained clothes of accused Devilal at his instance has also been adequately established by the prosecution. No explanation is extended by the accused as to how his clothes were having blood stains matching with the blood group of deceased Smt. Dauli. 17. The recovery of blood stained clothes of accused Devilal at his instance has also been adequately established by the prosecution. No explanation is extended by the accused as to how his clothes were having blood stains matching with the blood group of deceased Smt. Dauli. The recovery of sword at the instance of accused has also been adequately established by the prosecution, however, the sword was not having blood stains and i.e. obvious in view of the fact that the same was recovered from a well full of water. The accused was arrested in the morning at about 07:00 AM of 14.5.2003 and recoveries were also made immediately thereafter, as such, by taking into consideration all these facts, involvement of accused with the crime is apparent. It is also pertinent to mention that as per site inspection report (Ex.P/5) the door of the room in which Smt. Pushpa (PW-20) was sleeping, was having a slit. Sufficient evidence is also available to prove the availability of adequate moon light at the time of incident. As such, visibility of the entire incident therefrom is quite reliable. Having considered the entire evidence, we do not find any wrong with the finding arrived by the trial court about involvement of the appellant in the crime in question. As such, his conviction for an offence punishable under Section 302 Indian Penal Code does not suffer from any wrong. 18. The important question now requires to be examined is whether the offence committed by the accused appellant falls in the category of “rarest of rare” case warranting capital punishment? 19. As per sub-section(3) of Section 354 Code of Criminal Procedure, the courts are having obligation to have special reasons for awarding death sentence, thus, the capital sentence is an exceptional form of punishment. In Bachan Singh vs. State of Punjab ( AIR 1980 SC 898 ), Hon'ble Supreme Court concluded that the real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 20. In Machhi Singh & Ors. vs. State of Punjab ( (1983) 3 SCC 470 ), Hon'ble Apex Court provided five categories of murder, within which the rarest of rare doctrine was to be practically applied. 20. In Machhi Singh & Ors. vs. State of Punjab ( (1983) 3 SCC 470 ), Hon'ble Apex Court provided five categories of murder, within which the rarest of rare doctrine was to be practically applied. These five contingencies include the motive, the manner of commission of crime, the magnitude, the anti-social or abhorrent nature of the crime and the personality of the victim. 21. The issue again came up before Hon'ble Apex Court in Ramnaresh & Ors. vs. State of Chhattisgarh ( AIR 2012 SC 1357 ), wherein the Court pointed out 13 aggravating and 7 mitigating circumstances required to be taken into consideration while applying the doctrine of “rarest of rare” case. 22. In Brajendrasingh vs. State of Madhya Pradesh ( AIR 2012 SC 1552 ), the Apex Court while reiterating the principles set out in Ramnaresh's case (supra) added that the Court while examining “rarest of rare” case is required to see that whether any other sentence except death penalty would be inadequate in the circumstances existing. 23. The aggravating and mitigating circumstances required to be taken into consideration while applying the doctrine of “rarest of rare” crime in the cases of Ramnaresh (supra) and Brajendrasingh (supra) are as follows:- Aggravating Circumstances : 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, etc. by the accused with a prior record of conviction for capital felony. 2. The offence was committed while the offender was committing 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 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 u/s. 43 Cr.P.C. 9. 7. The offence was committed by a person while in lawful custody. 8. 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 u/s. 43 Cr.P.C. 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. 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 eye-witness though prosecution has brought home the guilt of the accused. 8. As per the law laid down in the case of Brajendrasingh (supra) an important factor i.e. required to be taken into consideration is that whether any other circumstance except death penalty would be inadequate looking to the facts of the case concerned. 24. The aggravating and mitigating circumstances noticed above may be much more in different circumstances and whatever circumstances noticed by Hon'ble Supreme Court as above are inclusive. No straight jacket formula can be prescribed for application of the doctrine “rarest of rare” situation. The contingencies for application of the doctrine aforesaid may differ circumstan-ces to circumstances and time to time, but in any event the court while considering the case for awarding severest punishment, which as a matter of fact akin to divine authority, is required to be extremely cautious with absolute vigilance about the factual circumstances, objective conditions and other relevant factors applicable to the society wherein the crime is committed. The court while considering the case for awarding capital punishment must under-stand that an exceptional authority must be exercised in most exceptional case, with utmost care, caution and only after arriving at the conclusion that no other punishment in any circumstance shall serve and satisfy the injury caused to the social order. The Indian society is a multilayer, multi dimensional, multi class, multi caste and multi cultural society with several virtues and several ills of every variant. An individual living in such society carries these virtues and ills with him. The courts cannot ignore all these factors while making necessary consideration for settling a severest sentence. 25. In the case in hand, learned trial court while awarding capital punishment held that the crime committed by the accused is brutal and barbaric. He killed three persons due to personal enmity with absolute planning. It is also noticed that the accused was not keeping cordial relations with his wife as she gave birth to a girl child. 25. In the case in hand, learned trial court while awarding capital punishment held that the crime committed by the accused is brutal and barbaric. He killed three persons due to personal enmity with absolute planning. It is also noticed that the accused was not keeping cordial relations with his wife as she gave birth to a girl child. The circumstances mentioned above are treated sufficient by the trial court to apply the crime in question as “rarest of rare”. 26. We have thoroughly examined the record. It is not in dispute that at the time of commission of offence the accused was of 23 years of age. He is coming from lowest social and economic strata of the society being a member of Scheduled Tribe. As per the record available, the accused was not indulged in any other criminal activity except the instant one. No analysis of the conduct and character of the accused is made by the trial court to arrive at the conclusion that no chances exist for his reformation and, therefore, the capital punishment is the only punishment adequate to meet the threat posed by him by indulging in the crime concerned. By taking into consideration the mitigating circumstances as laid down by Hon'ble Supreme Court in the cases of Ramnaresh (supra) and Brajendrasingh (supra), we are of the opinion that accused Devilal in the young age of 23 years committed a very heinous crime, however, merely on that count he cannot be subjected to death penalty. Certainly he was annoyed with his in-laws for several reasons including birth of girl child, but this is due to ill-values prevailing in our society. Such ills are required to be met by initiating socio economic reforms and not by legitimate killings. Looking to the present age of accused (about 33 years), we are having a ray of hope for his reformation and rehabilitation. The penalty of life term imprisonment with certain necessary conditions in our opinion may be an alternative adequate punishment to meet the gravity of the crime committed by accused Devilal. 27. Having considered the matter from all the aspects noticed above, we are not inclined to confirm the death sentence awarded by the trial court. The penalty of life term imprisonment with certain necessary conditions in our opinion may be an alternative adequate punishment to meet the gravity of the crime committed by accused Devilal. 27. Having considered the matter from all the aspects noticed above, we are not inclined to confirm the death sentence awarded by the trial court. Accordingly, the proceedings submitted to this Court for confirmation of death sentence are concluded by modifying the death penalty with life term imprisonment to accused Devilal with a condition that his case for permanent parole shall not be considered without actual serving of sentence for a period of 18 years. The fine imposed by the trial court is maintained. 28. The appeals preferred by the accused appellant are dismissed as the conviction has already been affirmed.