JUDGMENT S.C. Das, J. The death sentence reference and criminal appeal, mentioned hereinabove, have arisen out of the judgment and order of conviction and sentence, dated 19.11.2012 and 20.11.2012 respectively, passed by learned Sessions Judge, South Tripura, Udaipur in Sessions Trial Case No. S.T.68(ST/S)/2010, whereby the accused appellant Arjun Biswas has been found guilty of committing offence punishable under Section 302 of IPC and sentenced him to death. The reference for confirmation of sentence of death has been made by the learned Sessions Judge under Section 366(1) of Cr.P.C. and the appeal has been preferred by the convict-accused from jail against the judgment and order of conviction and sentence under Section 374 of Cr.P.C. A human being may be even worse than that of beasts--this is what the fact of this case discloses. The relation between the parents and children is considered a most pious relation, especially the relation between the mother and son, so far our mythology is concerned, is regarded as sacred most. The parents after the birth of the children, grow them up, protect them from all odds and, perhaps, all parents try to give the best earthly teaching to their children. At the old age, parents similarly expect protection, nursing, care from their children. A mother sacrifices what not for the well being of her children and similarly, the children also admire and respect the mother as the highest living God on the earth. This case is an instance of extreme human brutality since it is alleged that the accused, a middle aged man of 42 years, has brutally and mercilessly killed his parents in their own house. 1.1. Another sacred earthly relation is the relation between the husband and wife. A husband is expected to protect his wife from all earthly odds. Not only of providing fooding, clothing and shelter to the wife, but also it is the duty of the husband to provide a decent life of a human being to her. But in this case the fact is just reverse, as alleged, the accused not only subjected his wife to torture and tormentation but also brutally killed her in presence of their 4/5 years old child. 1.2. But in this case the fact is just reverse, as alleged, the accused not only subjected his wife to torture and tormentation but also brutally killed her in presence of their 4/5 years old child. 1.2. It is, therefore, said that human beings may be at their worst and sometimes become more brutal than the beasts and in such cases what should be the duty of the human justice system is the crux to be decided in this death reference and criminal appeal. 2. The accused-appellant Arjun Biswas (aged about 42 years) with his wife Kana Biswas(aged about 25 years) and their son Sagar alias Piyal(PW26)(aged about 4/5 years) and the parents of Arjun, namely Niranjan Biswas, the father(aged about 70 cars) and Sova Rani Biswas, the mother (aged about 60 years), used to reside at village- Sukanta Pally, Srinagar, under PS-Manubazar, South Tripura, in the same house premises. The parents, i.e. Niranjan and Sova used to stay in the eastern viti residential hut and the accused appellant with his wife and their son used to reside in the western viti hut, having same courtyard. A village road was passing in front of their house running towards north to south and their house gate was situated by the side of the residential hut of Niranjan and Sova. The most terrible, unfortunate incident of killing of Niranjan Biswas, Sova Rani Biswas and Kana Biswas occurred at evening time in the night of 12.11.2009 (night between 12.11.2009 and 13.11.2009). At that relevant point of time the accused, his wife, their minor son and his parents were the only inhabitants of their house and none else. 2.1. Prosecution case is that the accused used to work somewhere in the State of Haryana and his wife and minor son used to stay with his parents at Sukanta Pally. A few months before the date of occurrence the accused returned home leaving his job and started living with his wife and son in a separate hut in the same house premises. It is the case of the prosecution that the accused, as a matter of routine, used to treat his wife with all cruelty and also used to assault her every now and then and that was almost a routine affair in their house. It is the case of the prosecution that the accused, as a matter of routine, used to treat his wife with all cruelty and also used to assault her every now and then and that was almost a routine affair in their house. The accused also used to pick up quarrel with his parents on demand of money and share in the landed property, etc. and the atmosphere of their house was so odd and unhealthy that the neighbours used to avoid them. After returning home from Haryana the accused was sitting idle and was not engaged in any work. 2.2. In the evening of 12.11.2009, the close door neighbours heard the sound of beating and the cries of Kana Biswas, wife of the accused and they also heard the voice of the accused threatening his wife to keep quite. Since it was a routine affair of quarrel and torture and tormentation on Kana Biswas by the accused, the neighbours did not enquire about as to what had happened and they thought that it was a normal affair. 2.3. On that very night at about 12.30/1.00 am, the accused appeared in the house of PWs 11 and 14, namely Ratna Bal and Laxman Bal respectively, relatives of the accused, of village-South Srinagar, about 3/4 KMs away from his house, and called them to which Ratna Bal woke up and opened the door. The accused wanted some water for washing his hands and feet and Ratna noticed bloodstain on his feet. The accused slept in the same bed with Laxman at night. On the following morning, the accused was offered breakfast Ratna and Laxman found him worried and he could not take his breakfast well. The accused made a confession before Laxman and Ratna that he killed his parents and wife. He also handed over a key to Laxman with a request to go to his house and to bring a sum of Rs. 3,000/- (rupees three thousand) from the drawer of his table but Laxman did not attach any importance in his statement and left for his work. The accused was, thereafter, staying in the house of Laxman and Ratna. 2.4. PWs 6, 7 and 8, 'Nani Gopal Majumder, Ripu Majumder and Nepal Majumder, are the next door neighbours of the accused and his parents having common boundary with bamboo made boundary fencing. The accused was, thereafter, staying in the house of Laxman and Ratna. 2.4. PWs 6, 7 and 8, 'Nani Gopal Majumder, Ripu Majumder and Nepal Majumder, are the next door neighbours of the accused and his parents having common boundary with bamboo made boundary fencing. They could notice Sova Biswas lying dead with bleeding injury in the north-western side of the courtyard of their house and since they had no visiting term in the house of the accused, they called Kali Sankar Datta (PW3) to see as to what happened in the house of the accused and through the gaps of bamboo fencing Kali Sankar found Sova Rani lying in the corner of the courtyard with bleeding in-jury and at once he rushed to the house of Rabindra Kumar Biswas (PW1), cousin brother of the accused, to inform. The neighboured could not notice any response of any inhabitant from the house of the accused. Rabindra at once rushed to Srinagar Outpost and along with one ASI, Mr. Paul and the village Pradhan and Upa-Pradhan, namely Bela Debnath and Goutam Debnath respectively, rushed to the house of the accused and by that time many other villagers, neighbours and relatives also gathered there and they found Sova Rani already dead having with bleeding injury on her throat and Kana Biswas lying in the door of the hut of Arjun Biswas and she was groaning having no sense. The five year old son of Arjun, namely Sagar alias Piyal was only in the hut by the side of his groaning mother. The police officer at once shifted Kana Biswas to Srinagar hospital with the police vehicle from where, since her condition was critical she was shifted to District Hospital at Udaipur and Kana Biswas succumbed to her injuries on the same day. Arjun Biswas and Niranjan Biswas were not found in the house. Police and the neighbours noticed bloodstains on the foot track towards the side of the pond and, accordingly, being curious the neighbours went on a search in the pond of Niranjan Biswas and on search they found the dead body of Niranjan Biwas in the pond and brought it out from the water which was kept under a log in the water and the witnesses found stab injuries on the throat and head of Niranjan Biswas. 2.5. 2.5. On the spot Rabindra Kumar Biswas, the cousin brother of the accused lodged an FIR in writing scribed by Gopal Sarkar (PW21) and submitted it to the police officer. The local people made a search for Arjun Biswas but he was found nowhere in the house. Sagar alias Piyal, the minor son of Arjun, who was only found in the house could speak nothing and was found greatly shocked. Police officer of Srinagar Outpost, who rushed to the spot informed the Officer In-charge of Manubazar PS over telephone about the occurrence and, accordingly, SI Ashis Kr. Deb (PW34), the O/C of the PS entered the fact in the GD Book of Manubazar PS vide G.D. Entry No. 582 dated 13.11.2009 and at once arrived at the place of occurrence, i.e. in the house of the accused. 2.6. A dagger with bloodstain and a wooden hammer also with bloodstain were found in the courtyard and those were seized by the police officer, SI Ashis Kr. Deb. Since he found a cognizable offence he forwarded the FIR which was lodged by Rabindra Kumar Biswas (PW1) to Manubazar PS for formal registration of the case. 2.7. Laxman Bai (PW14) at about 10.00/11.00 am, while was working in the field got an information from the villagers that Sova Rani Biswas and Kana Biswas were murdered, and so he rushed to the house and kept Arjun confined in his house bolting the door from outside. In the meantime, police was informed and in the afternoon police arrived in the house of Laxman and Ratna and arrested the accused from their house. 2.8. It is the case of the prosecution that in police custody the accused made a confessional statement of killing his parents and wife, and accordingly he was forwarded to the court for recording his statement but the accused, ultimately, declined to make any confession. 2.9. PW 34 SI Ashis Kr. Deb conducted the investigation till 22.02.2010 and recorded statements of numerous witnesses including that of the brothers and sisters of the accused and their other relatives. 2.10. It is also the case of the prosecution that I.O. Ashis Kr. Deb made an attempt to examine the infant boy but since the boy was under shock he did not take a serious effort to record his statement. PW36, Bijoy Kr. 2.10. It is also the case of the prosecution that I.O. Ashis Kr. Deb made an attempt to examine the infant boy but since the boy was under shock he did not take a serious effort to record his statement. PW36, Bijoy Kr. Ghosh, the second I.O. examined Sagar alias Piyal (PW26), the minor son of the accused on 29.04.2010 and then forwarded him to the Court of Sub-Divisional Judicial Magistrate, Sabroom, who recorded the statement of the minor boy on 17.05.2010. 2.11. Bloodstains were seized from the hut of accused Arjun where deceased Kana was lying and from the spot where Sova Rani was lying dead. Certain bloodstained clothes, 'katha' (a kind of quilt), pillow, etc. were also seized form the house of accused Arjun. Postmortem examination of Niranjan and Sova Rani was done at Srinagar PHC and postmortem examination over the dead body of Kana was done at T.S. District Hospital at Udaipur. Postmortem reports were collected from the hospitals and a SCD also collected from R.K. Pur PS in respect of the inquest report, etc. of Kana Biswas. 2.12. On completion of investigation PW36 submitted charge sheet against the accused for commission of offence punishable under Section 302 of IPC. 3. Cognizance was taken on the basis of the police report and in due course the case was committed to the Court of Sessions at Udaipur for trial. 3.1. Learned Sessions Judge in course of trial framed separate charges against the accused for murder of Niranj an Biswas, Sova Rani Biswas and Kana Biswas to which the accused pleaded not guilty and claimed to be tried. 3.2. In course of trial, prosecution examination 38(thirty eight) witnesses and exhibited several documents and materials including that of the alleged weapons of offence, i.e. the dagger and wooden hammer. 3.3. After closure of the prosecution evidence accused was examined under Section 313 of Cr.P.C. and in his turn accused declined to adduce any defence evidence. Defence case is nothing but a bare denial of the prosecution case. 3.4. In course of cross-examination of the prosecution witnesses defence suggested that the Bangladeshi dacoits used to commit dacoity frequently in the houses inside the Indian Territory and that Bangladeshi dacoits might have committed dacoity in the house of Niranjan Biswas and killed Niranjan, Sova Rani and Kana. Defence case is nothing but a bare denial of the prosecution case. 3.4. In course of cross-examination of the prosecution witnesses defence suggested that the Bangladeshi dacoits used to commit dacoity frequently in the houses inside the Indian Territory and that Bangladeshi dacoits might have committed dacoity in the house of Niranjan Biswas and killed Niranjan, Sova Rani and Kana. In course of cross-examination of some of the prosecution witnesses defence also put suggestion that the accused was suffering from insanity. Except suggestions, which are denied by the prosecution witnesses, no evidence adduced in support of the defence suggestions. 3.5. Learned Sessions Judge found the accused appellant guilty of committing murder of his wife and parents and sentenced him to death. 3.6. Hence, the present reference and appeal. 4. Heard learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. S. Lodh for the convict-appellant and learned Advocate General, Mr. B.C. Das, assisted by learned P.P., Mr. A. Ghosh for the State respondent. 5. Homicidal death of Niranjan Biswas, Sova Rani Biswas and Kana Biswas has not been disputed. The accused only pleaded his innocence. Let us first have a glimpse to the evidence of the autopsy surgeons who conducted postmortem examination over the dead bodies. 5.1. PW31, Dr. Debashis Roy along with three other doctors, namely Dr. Sumana Ghosh, Dr. Narayan Das and Dr. Debasish Paul conducted postmortem examination over the dead body of Kana Biswas at T.S. District Hospital, Udaipur. In his deposition PW31 stated that on examination of the dead body they found-- ...The body was stout, lying on the floor of the morgue. Rigormotis formed. Post mortem staining was seen and fixed. There were evidence of deep bum and scald over left knee, 2 Nos. measuring 3 cm x 2 cm x 8 cm × 4 cm. There were other evidence of dry burn with scald over right knee. 2 Nos. measuring 3 cm x 2 cm x 5 cm x 4 cm. Multiple bruises with small abrasion were seen in both side of lateral aspect of thigh. An abrasion measuring 2 cm x 2 cm was found in left elbow, lateral aspect. A bruise measuring 5 cm × 3 cm was found over left cheek. Another bruise measuring 3 cm x 2 cm was found over chin. Multiple scratches abrasion with semi circular abrasion were seen in left side of the neck. An abrasion measuring 2 cm x 2 cm was found in left elbow, lateral aspect. A bruise measuring 5 cm × 3 cm was found over left cheek. Another bruise measuring 3 cm x 2 cm was found over chin. Multiple scratches abrasion with semi circular abrasion were seen in left side of the neck. Frothing were found in both nostrils. Congestion and edematous of larynx found both the lungs were edematous and congested. All the other body organs and bonny structure were healthy and intact. Age of death 12 to 18 hrs. from the time of holding p.m. examination. In their opinion, the cause of death was asphyxia, which was ante mortem and homicidal in nature. 5.2. PW35, Dr. Abhijit Dey conducted postmortem examination over the dead body of Niranjan. In his deposition he stated that on postmortem examination of the dead body he found-- ...I found the body intact and rigor mortis develop. There was a lacerated wound on mid-parietal scalp, 5 cm x 4 cm x 2 cm with clotted blood and another lacerated wound on right occipital scalp with blood clots. It was 4 cm x 1 cm x 2 cm. Laceration of mid-parietal scalp obliquely with scalp eruption and clotted blood 5 cm x 4 cm x 2 cm. Skull and membrane lacerated. Another laceration of right occipital scalp 4 cm x 1 cm x 2 cm with inclusion of membrane and skull cutted. Membrane ruptured on parietal and occipital region. On craniotomy a huge haematoma 4 cm in diameter, on occipital region of brain. Un-digested food particles were found in stomach. A lacerated wound on mid-parietal skull 5 cm x 4 cm x 2 cm in size with involvement of skull and formation of blood clots. The skull on that area cracked and haematoma involving the brain. Another lacerated wound on right occipital skull 4 cm x 1 cm x 2 cm with inclusion of bone and brain haematoma. Both injury were caused by blunt object. In his opinion, cause of death was due to lacerated wound on mid-parietal and right occipital skulls causing brain haematoma by blunt object. Time since death was about 15 to 20 hours at the time of postmortem examination. 5.3. PW38 Dr. Sanjoy Kr. Both injury were caused by blunt object. In his opinion, cause of death was due to lacerated wound on mid-parietal and right occipital skulls causing brain haematoma by blunt object. Time since death was about 15 to 20 hours at the time of postmortem examination. 5.3. PW38 Dr. Sanjoy Kr. Saha conducted postmortem examination over the dead body of Sova Rani Biswas and in his deposition he stated that on examination he found the following: ...There was a large incised wound on middle third of anterior neck 6 cm x 5 cm with out on vital structure of neck i.e., skin, carotid vessels of both sides, larynx, sternocleidomastoid muscle, hyoid bone, thyroid cartilage, esophagus with blood clots. An incised wound on right supra-orbital region 5 cm x 3 cm x 2 cm with blood clots. In his opinion it was an instantaneous death due to loss of vital structure of neck which falls in respiration and blood supply in brain. The injury was caused by sharp object. 5.4. There is no material in the cross-examination of the autopsy surgeons, i.e. PWs 31,35 and 38 to raise doubt in any form in respect of their opinions regarding the cause of death and the injuries found by them in the dead bodies. 5.5. Prosecution also proved the inquest reports prepared over the dead bodies of Niranj an, Sova Rani and Kana and those are not challenged in any manner. 5.6. It is, therefore, overwhelmingly established that Niranjan Biswas, Sova Rani Biswas and Kana Biswas died a homicidal death because of the injuries sustained by them on the night of 12.11.2009. 6. Let us now have a glimpse to the EVIDENCE ON RECORD: 6.1. According to the prosecution, PW26 is the minor son of the accused and deceased Kana and is the sole eyewitness of the occurrence. It is not at all in dispute that Sagar alias Piyal, PW26, a minor boy, aged about 4 1/2/5 years only escaped death on that night. His deposition was recorded by the trial Judge on 05.01.2011, i.e. after about a year of the date of occurrence and his age has been mentioned as 5 years at that time. It is not at all in dispute that Sagar alias Piyal, PW26, a minor boy, aged about 4 1/2/5 years only escaped death on that night. His deposition was recorded by the trial Judge on 05.01.2011, i.e. after about a year of the date of occurrence and his age has been mentioned as 5 years at that time. Learned Sessions Judge put several questions to the witness to test the capacity of the child witness as to whether he was able to give rational answers to the questions and recorded his satisfaction that the witness can understand the simple questions and give rational answers. In his deposition the child witness stated that accused Arjun Biswas, present in the dock, is his father. In one night he saw his father assaulting his mother. He took shelter under the cot. He found his grandmother was lying in the courtyard. Though he saw his father assaulting his mother he did not raise alarm. He has been living with his paternal aunts at that relevant time of giving deposition. On the following morning police officers and villagers came to their house. Dead body of his grandfather was recovered from their pond. His mother was brought from their living hut and grandmother was brought from the courtyard. In fact, his mother was sent to hospital. When his mother was brought home she was dead. His father assaulted his mother by a wooden hammer. He identified the wooden hammer which is marked as Exbt. MO.3. In cross-examination, he stated that the family members of his grandmother told him to give statement before the court that his father killed his mother and his grandparents. Usually, he goes to sleep in the evening after taking dinner. He denied the suggestion that he did not see his father assaulting his mother with the wooden hammer. 6.2. There is no other eyewitness of the case. Rest of the prosecution witnesses may be classified in different groups. In fact, learned Sessions Judge also classified the witnesses in different groups but what the particular group of witnesses stated has not been clearly spelt out at the time of appreciation of the evidence. 6.3. This case has an exceptional feature and is unlike other ordinary cases of murder. Here, the allegation is that the accused being the son murdered his parents and being the husband murdered his wife. 6.3. This case has an exceptional feature and is unlike other ordinary cases of murder. Here, the allegation is that the accused being the son murdered his parents and being the husband murdered his wife. Except the official witnesses, others are neighbours and close/distant relatives of the accused as well as the deceased persons. There is no sort of animosity between the accused and any of the witnesses. Even there is no suggestion that the witnesses because of any ill relation came before the court to depose against the accused. The only suggestion what was put to the material witnesses is that at the instance of the I.O. they made statements. Such a suggestion has got no basis and foundation at all. Let us first examine the evidence of the witnesses of the neighborhood. 6.4. PWs 6, 7 and 8 are the close next door neighbours of the accused having a common bamboo made boundary fencing but the relationship between the two neighbours was strained having no visiting term. Being the next door neighbours, PWs 6,7 and 8 at first noticed Sova Rani Biswas lying dead in the courtyard and PW1 Rabindra Kumar Biswas was informed by them. Since none of those witnesses are eyewitnesses to the occurrence, we consider it meaningless to reproduce their statements made before the court except the material part necessary for decision of the case. PW6 stated that Niranjan Biswas was the adjacent neighbour and his family consists of his wife, his son Arjun (accused), the wife of Arjun and the minor son of Arjun. He had no visiting term with the family of Niranjan because there was chaos in the family of Niranjan. Niranjan and his son Arjun most often used to quarrel with each other. About a year ago in one morning at about 8/8.30 am he noticed the dead body of the wife of Niranjan lying inside their house and he called PW3 Kali Sankar Datta and both of them saw the dead body of Sova Rani from the road and Kali Sankar Datta informed the relative of Niranjan. Rabindra Biswas, a relative of Niranjan was informed and he came with the local police. Thereafter, he entered in the house of Niranjan and found wife of Niranjan sustained injury on throat and was lying dead. The wife of Arjun was lying with injury and groaning. Rabindra Biswas, a relative of Niranjan was informed and he came with the local police. Thereafter, he entered in the house of Niranjan and found wife of Niranjan sustained injury on throat and was lying dead. The wife of Arjun was lying with injury and groaning. Dead body of Niranjan was recovered thereafter from their pond. Arjun was not available in the house. In cross-examination he stated that the house of Niranjan was situated at an audible distance from his house. Niranjan used to consume alcohol and would most often enter into quarrel with his wife over trifling issues. 6.5. PWs 7 and 8 also stated almost in the same tune. PW7 stated that Arjun would most often assault his wife and if local people tried to intervene Arjun used to misbehave with the local people. About one year one month ago at about 8.30 pm she heard a sound in the house of Niranjan Biswas and also heard Arjun was uttering "keep quite". After that she heard somebody closed the door and the wife of Arjun had been crying. On the following morning at about 8.30 am her brother-in-law Nani Gopal Majumder (PW6) found the dead body of mother of Arjun lying in the courtyard. He thereafter informed the neighbours. Kali Sankar Datta (PW3) informed Rabindra Biswas, a relative of Niranjan and Rabindra arrived there with police. Wife of Arjun was shifted to hospital. Dead body of Sova was also shifted to hospital. Arjun and Niranjan were not available in the house. Dead body of Niranjan was recovered from the pond kept under the pressure of a log inside the water. The wife of Arjun succumbed to the injuries at hospital. In cross-examination, she stated that she informed Kali Sankar Datta what she heard in the previous evening. Her attention was drawn to her previous statement that she stated to the I.O. that Niranjan Biswas most often used to enter into quarrel with the family members under the state of drunkenness to which she stated that she had forgotten whether she made such a statement and that portion of her statement marked as Exbt A which is proved by the I.O. 6.6. PW8 stated that at about 8.30 pm while he was returning from market he heard a beating sound in the house of Niranjan Biswas. Immediately he heard the cries of the wife of Arjun. PW8 stated that at about 8.30 pm while he was returning from market he heard a beating sound in the house of Niranjan Biswas. Immediately he heard the cries of the wife of Arjun. At that time another neighbour, namely Bhajan Datta of their locality was also there. He had a chat with Sukla Datta, wife of Bhajan Datta over the issue of crying of the wife of Arjun. Thereafter, he left for his house. The statements of PWs 7 and 8 that they heard the sound of beating in the house of the accused and that PW7 heard the sound of accused uttering his wife to keep quite have not been shaken in cross-examination. 6.7. PW10, Pradip Datta is another important neighbouring witness of the occurrence. In his deposition he stated that on 13.11.2009 at around 10.30/11.00 am he came to know that Niranjan Biswas and his wife were killed and the wife of Arjun was shifted to hospital. In the morning when he went to the house of Niranjan, at that time, Niranjan and Arjun were not available. In the afternoon on return from his school he again went to the house of Niranjan and saw the dead body of Niranjan being taken away by a vehicle. Arjun was not present in the house. In the previous evening at around 6.30/7.00 pm, he met Arjun while he had been returning from Srinagar market. His house is situated at a distance of 30/40 meters from the house of Arjun. Any noise in the house of Arjun was audible from his house. Arjun used to enter into quarrel with his wife and father almost regularly. In the night of 12.11.2009 he heard Arjun quarrelling with his family members but he (witness) took it casually since Arjun was riotous in nature and used to consume alcohol, cannabis at random. In cross-examination, on being questioned by learned defence counsel the witness stated that he told the I.O. that before leaving for the State of Haryana Arjun was a riotous boy and used to do so many mischief by setting different houses ablaze. Arjun used to mix poison in the ponds of the villagers and used to kill the cows and goats in the forest and also used to commit theft. He denied the suggestion that Arjun was suffering from insanity. Arjun used to mix poison in the ponds of the villagers and used to kill the cows and goats in the forest and also used to commit theft. He denied the suggestion that Arjun was suffering from insanity. He also denied the suggestion that because of me insanity Arjun used to commit the mischief. He stated that he had no knowledge whether the family members of Arjun was suffering from any insanity. The incriminating evidence of PW10, a responsible witness of the neighborhood remained unshaken in cross-examination and there is nothing to disbelieve the witness that Arjun was a man of riotous nature and used to consume alcohol and cannabis at random. 6.8. PW12 Sefali Datta is also a neighbour of the accused and the deceased victims. In her deposition she stated that on 13.11.2009 in the morning she met the son of Arjun in their house gate and she enquired about his mother to which the son of Arjun told that his mother was assaulted by his father. She took it as a routine affair in their house and she returned to her house. After sometimes she noticed that the police personnel arrived in the house of Arjun and the village people also gathered there. She rushed to the house of Arjun and found that the dead body of Sova Rani lying in the courtyard and Niranjan and Arjun were not present in the house. Kana Biswas was lying unconscious. Local people shifted Kana to hospital. She further stated that on the previous evening at about 8.00 pm she heard the cries of the wife of Arjun. Arjun was threatening his wife. She discussed the matter with Sukla Datta, the wife of her brother-in-law and she did not take the matter seriously as Arjun was regular in entering into quarrel with his parents and wife. She further stated that the dead body of Niranjan was recovered from the pond. Kana Biswas succumbed to the injuries in the hospital. In cross-examination, she stated that she did not state to I.O. that she met the son of Arjun in the gate of their house in the morning. She further stated that she had forgotten whether she stated to I.O. that the son of Arjun stated to her that his father assaulted his mother. Her attention was drawn to her previous statement recorded by I.O. and no such statement was found. She further stated that she had forgotten whether she stated to I.O. that the son of Arjun stated to her that his father assaulted his mother. Her attention was drawn to her previous statement recorded by I.O. and no such statement was found. She denied the suggestion that the son of Arjun did not tell her that his father assaulted his mother. The statement of this witness on the fact that on the previous evening at about 8.00 pm she heard the cries of the wife of Arjun and Arjun was threatening his wife has remained unshaken. 6.9. PW1 simply lodged the FIR which was scribed by PW21. PW1 is the cousin brother of the accused and PW16 is the son of PW1. In his deposition PW1 stated that his house is located about half kilometers away from the house of his uncle Niranjan Biswas. He was informed by Kali Sankar Datta (PW3) at about 10 am that his aunt Sova Biswas was lying with bleeding injuries, and henceforth he informed the police of Srinagar Outpost and along with the police officer as well as the village Pradhan and Up-pradhan rushed to the house of his uncle Niranjan Biswas and found Sova Rani Biswas lying dead with stab injury on her throat and Kana was lying at the door of the hut of Arjun Biswas and was groaning. She was immediately shifted to hospital by a police vehicle. The five year old son of Arjun was inside the hut but he could not tell anything. Niranjan and Arjun were not present in the house. Noticing bloodstains on the foot track running towards the pond, Kanti Choudhury (PW4) and 3 other villagers made a search in the pond and recovered the dead body of Niranjan Biswas kept in the water under a log and the dead body was brought in the courtyard and it was found that Niranjan Biswas was having with severe bleeding injuries. A knife with bloodstain and a wooden hammer were found in the courtyard and those were seized by the police officer. Bloodstained earth, bloodstained pillow, bloodstained 'katha' (a kind of quilt), a few broken pieces of conchs and one 'saree' were seized by the I.O. He identified his signature in the seizure list, put by him as a witness. He also identified his signature in the FIR lodged by him. Bloodstained earth, bloodstained pillow, bloodstained 'katha' (a kind of quilt), a few broken pieces of conchs and one 'saree' were seized by the I.O. He identified his signature in the seizure list, put by him as a witness. He also identified his signature in the FIR lodged by him. He also proved the seized materials which were marked as Exbt. MO. 1 series. Arjun was not present in the house and he was arrested by police at about 3.00 pm. He stated that Arjun was at a loggerhead with his parents. There is nothing in his cross-examination. 6.10. PW3. Kali Sankar Datta stated in his deposition that he was informed by PW6 Nani Gopal Majumder that Sova Rani was found lying with bleeding injury in the courtyard and from the road he found it over the bamboo fencing. At once he went to inform PW1, Rabindra Kr. Biswas, the nephew of Niranjan about the incident and Rabindra assured him to come to the place of occurrence with police. After a while he also came to the house of Niranjan. He was present when the local people recovered the dead body of Niranjan from his pond. Arjun Biswas was not available in the house and in the locality. He was a witness to the seizure of bloodstained knife, hammer, earth, etc. marked as Exbt. MO.1 series. He stated that Arjun was very idle and used to enter into quarrel with his parents on demand of money. This evidence of PW3 has not been challenged in cross-examination. 6.11. PW9 and PW32 are also the neighbours of the accused and the deceased victims and they along with PW8 returned home together from the market on the alleged night of occurrence. PW9 stated that while they were returning from Srinagar market and reached adjacent to the house of Niranjan, they heard somebody closed the door of Niranjan and they heard the wife of Niranjan was crying. Since quarrelling was a regular affair in the house of Niranjan, they did not enquire about it. He also stated that people also did not mix with them because of their family hiccups. On the next day at about 3.30/4.00 pm he returned home and could learn that Niranjan and his wife were killed and the wife of Arjun was also severely injured and died at hospital. He also stated that people also did not mix with them because of their family hiccups. On the next day at about 3.30/4.00 pm he returned home and could learn that Niranjan and his wife were killed and the wife of Arjun was also severely injured and died at hospital. He clearly stated that on that night while the wife of Arjun was crying he heard the voice of Arjun and he could identify the voice that since Arjun was his co-villager and he was acquainted with the voice of Arjun. In cross-examination he stated that Arjun returned from Haryana 6/7 months before the incident. Arjun used to pass his days idly without any work. He had no speaking term with Arjun. He denied the suggestion that he did not heard the voice of Arjun. The evidence of this witness remained unshaken. 6.12. PW32 in his deposition stated that he along with Nepal Majumder (PW8) and Tamal Laskar (PW9) while were returning home from market and reached in front of the house of Niranjan, heard the sound of beating. They also heard the sound of Arjun Biswas telling to somebody 'stop stop' to keep-quite. Arjun was known to him since his childhood. At that time they discussed the matter with the wife of Bhajan Datta. an adjacent neighbour of Niranjan Biswas. Thereafter, they left for their respective houses. On the following day he found a gathering near the house of Niranjan and also found the dead body of Sova Rani lying near the northern side of western viti hut and Kana was lying in front of the door of her hut. The minor son of Kana was standing there. The bodies were lying in a pool of blood. Thereafter, he left the house of Niranjan. In cross-examination he stated that he told 'darogababu' that he heard that Arjun was uttering, 'keep mum' 'keep mum'. There is nothing more in the cross-examination to shatter the evidence of PW32. 6.13. PW21 also visited the house of Niranjan on hearing about the occurrence and he scribed the FIR lodged by PW1. WITNESSES WHO ARE CLOSE RELATIVES 6.14. PW2 Anju Biswas and PW17 Sanju Baidya are the full-blood sisters of the accused, i.e. the daughters of Niranjan and Sova Rani. PW4 Kanti Chowdhury is the husband of PW2 Anju and PW18 Pintu Baidya is the husband of PW17. WITNESSES WHO ARE CLOSE RELATIVES 6.14. PW2 Anju Biswas and PW17 Sanju Baidya are the full-blood sisters of the accused, i.e. the daughters of Niranjan and Sova Rani. PW4 Kanti Chowdhury is the husband of PW2 Anju and PW18 Pintu Baidya is the husband of PW17. PW2 Anju is a resident of the same village and same locality of her parents and PW17 Sanju is a resident of Madhabnagar, about ten kilometers away form the house of the accused. PW2 Anju Biswas stated that her house was situated about 150 meters away from her paternal house. She used to visit her paternal house almost regularly. Her parents and sister-in-law, i.e. the wife of Arjun were killed. At about 11.00 am some villagers shouted that something happened in her paternal house and police arrived there. She rushed to her paternal house and found wife of Arjun lying at the door of her hut and she was groaning. The son of Arjun, aged about 5 years came to her but could not tell her anything. She found her elder brother (cousin), Rabindra Kumar Biswas(PW1), Panchayat Pradhan, Bela Debnath and the police personnel. She immediately shifted the wife of Arjun to hospital with a police vehicle. She again came back to her paternal house and found the dead body of her mother lying in the northern corner of the house with a stab injury on her throat. Her father and elder brother Arjun were not available in the house. Some bloodstains were noticed towards the pond and asked the local people to search on the pond. On extensive search the dead body of her father Niranjan was recovered from the pond. It was kept under the log. She got nervous. In the evening she heard from the local people that her brother Arjun was arrested from South Srinagar. She signed the inquest report prepared on the dead body of her father. She stated that 'darogababu' seized the wooden hammer and bloodstained knife and other articles. She stated that Arjun often used that knife which she found often on his table. The wooden hammer was used by her mother. Arjun used to work in a factory in the State of Haryana but he kept his wife and son under the custody of her parents. He came from Haryana about 2/3 months prior to the incident. She stated that Arjun often used that knife which she found often on his table. The wooden hammer was used by her mother. Arjun used to work in a factory in the State of Haryana but he kept his wife and son under the custody of her parents. He came from Haryana about 2/3 months prior to the incident. In her paternal family there were her parents, her elder brother Arjun, his wife and son. She identified the wooden hammer and the knife. In cross-examination she stated that another brother of her, namely Tapash Biswas, committed suicide around 9/10 years ago. He had been suffering from insanity. Arjun most often used to keep mum. For that, her father consulted doctors. She voluntarily stated that there was no sign of insanity in Arjun. She denied the suggestion that the Bangladeshi nationals committed dacoity and killed her parents and wife of Arjun. 6.15. PW4 Kanti Chowdhury, the husband of PW2 stated that he used to regularly visit the house of his father-in-law Niranjan Biswas. On the previous day of the incident he visited the house and at that time his father-in-law, mother-in-law, accused Arjun, elder brother of his wife, wife of Arjun and the minor son of Arjun were present in the house. He visited the house in the evening. He stated that Arjun used to enter into quarrel with his parents over his demand of money. Arjun used to reside in a separate mess with his wife and child. He used to work in the State of Gujarat and returned home about 4/5 months prior to the incident. He (witness) first got information on the following morning at about 10/10.30 am from his neighbour Amal Biswas about the incident that his mother-in-law was lying dead and wife of Arjun was lying senseless with injuries. He rushed to the spot and found a huge gathering there. He along with others searched the pond and recovered the dead body of his father-in-law kept under a log in the water. Arjun was not available in the house. Later on he heard that Arjun was wondering at South Srinagar. In cross-examination, he denied the suggestion that Arjun was invited to the house of one Mallabari of South Srinagar and from Srinagar market he went to Mallabari to attend the invitation. Arjun was not available in the house. Later on he heard that Arjun was wondering at South Srinagar. In cross-examination, he denied the suggestion that Arjun was invited to the house of one Mallabari of South Srinagar and from Srinagar market he went to Mallabari to attend the invitation. He denied the suggestion that Arjun did not enter into quarrel with his parents over the issue of money. He admitted that sometimes Arjun would show the sign of insanity and for that his father-in-law consulted medical practitioners. 6.16. PW17, another sister of the accused stated that on hearing about the incident she rushed to the house of her parents and found her mother lying dead with cut throat. She also heard that her sister-in-law Kana shifted to hospital and her father and elder brother Arjun were missing. After sometimes, local people recovered the dead body of her father from the pond but Arjun was missing. Minor son of Arjun was standing and was crying. On her query, son of Arjun, right at that moment, could not say anything how the mischief had happened. Her another brother, Subhas was working at Haryana and after marriage of Arjun and after the birth of their son he also went to Haryana and came back from Haryana after three years. The mischief occurred after six/seven months of his return from Haryana. Arjun used to quarrel with his parents on his demand of money and for the share in the landed property. He did not take care of his wife also. She was a regular visitor of her paternal home. During her visit she often found Arjun quarrelling with her parents over his demand of money and share in the landed property. Her younger brother Subhas returned from Haryana after receiving the information of killings. The minor son of Arjun was residing under her care and custody and he told her after 7/8 days of the incident that his father killed his mother. Arjun was arrested from the house of one Mr. Bal of South Srinagar. During her visit to her paternal house her mother used to tell her that Arjun used to quarrel with them over his demand of money and landed property. In cross-examination, she denied the suggestion that the Bangladeshi dacoits committed dacoity in her paternal house and killed her parents and the wife of Arjun. Bal of South Srinagar. During her visit to her paternal house her mother used to tell her that Arjun used to quarrel with them over his demand of money and landed property. In cross-examination, she denied the suggestion that the Bangladeshi dacoits committed dacoity in her paternal house and killed her parents and the wife of Arjun. She also stated that they want proper punishment of Arjun, otherwise, he might cause similar incident again. She denied the suggestion that Arjun was suffering from insanity. She also denied the suggestion that Arjun being a vagabond and also being mad went to the house of Mr. Bal, purposelessly. After the occurrence minor son of Arjun was taken by the mother of Kana and, 2/3 days thereafter he was handed over to the custody of her younger sister. After one month he was again taken to her custody. She denied the suggestion that the son of Arjun did not tell her anything about the killings. 6.17. PW18, the husband of PW17 stated that he also rushed to the house of her father-in-law and narrated what he found. He stated that he used to visit his father-in-law's house now and then. During his visit he often found Arjun quarrelling with his wife and, in fact, he used to assault his wife. He also used to assault his parents over his demand of money and his share on the landed property. Police seized the knife and one wooden hammer from the courtyard of the house of Arjun and he identified those as Exbt. MO. 1 series. He further stated that his father-in-law and mother-in-law, on a number of occasions informed him that Arjun was creating nuisance in that house over the demand of landed property and he used to demand money also. Except suggestions, there is nothing in his cross-examination. WITNESS OF EXTRA-JUDICIAL CONFESSIONS 6.18. Now let us note the evidence of PWs 11 and 14, who are found to be very important witnesses of the case. They are wife and husband respectively, residing in village-South Srinagar. They are relative of accused Arjun. PW11 stated that about one year ago, one day at about 3.00 pm police officer arrested Arjun from their house, situated at South Srinagar. On the night of 12.11.2009, at about 1.00 am, Arjun came to their house and she opened the door of her hut. They are relative of accused Arjun. PW11 stated that about one year ago, one day at about 3.00 pm police officer arrested Arjun from their house, situated at South Srinagar. On the night of 12.11.2009, at about 1.00 am, Arjun came to their house and she opened the door of her hut. Arjun wanted some water to wash his hands and feet. She noticed bloodstains on the feet of Arjun. She enquired but Arjun did not give proper reply. Her husband was then sleeping. Arjun also went to sleep. On the following morning Arjun told in soliloquy that he had killed his parents and wife. They did not take it seriously rather thought that he might have entered into quarrel with them. After sometimes, she offered lunch to Arjun but he refused. At noon, from local people she came to know that Arjun killed them(his parents and wife). Her husband asked her to confine Arjun. Immediately, she bolted the door from outside. Police officer came at about 2.30/3.00 pm and arrested Arjun. In her cross-examination, she denied the suggestion that Arjun did not tell her and her husband in the morning that he had killed his parents and wife. She stated that she did not state to the I.O. that in that night her husband informed her that in the morning Arjun confessed to her husband that he had killed his parents and wife. Her attention was drawn to the statement recorded by I.O. wherein that statement was available and that was marked as Exbt. B. She also stated that she told the I.O. that in the morning Arjun told her that he killed his wife and parents. Her attention was drawn to the statement recorded by I.O. wherein such statement was not found. She denied the suggestion that Arjun in presence of her husband did not tell her that he killed his parents and wife. She denied the suggestion that Arjun went to her house with her husband on the previous evening and took dinner in her house and that no bloodstain was noticed on the feet of Arjun. 6.19. PW14, Laxman Bal stated that Arjun is the brother-in-law of his cousin sister. House of Arjun situated about three kilometers away from his house. In the morning when he woke up from asleep, he found Arjun sleeping beside him. 6.19. PW14, Laxman Bal stated that Arjun is the brother-in-law of his cousin sister. House of Arjun situated about three kilometers away from his house. In the morning when he woke up from asleep, he found Arjun sleeping beside him. His wife informed him that in the previous night at around 12.30 am Arjun came to their house and thereafter he asked Arjun to take breakfast. He found Arjun visibly worried and as such could not take his breakfast properly. Arjun told him that he killed his parents and gave him a key and requested him (witness) to bring a sum of Rs. 3,000/- (rupees three thousand), which he (Arjun) kept in the drawer of his table. He (witness) took the matter casually and went away to his place of work situated at a distance of one and half furlong from his house. At around 10.00 am his wife came with his lunch. He asked his wife about Arjun and she informed him that Arjun was sleeping. After that one lady, who was returning from the local hospital informed him that Niranjan Biswas died. Hearing it, he became perturbed and arrived at his house and informed his wife and son what Arjun had done. He asked them not to allow Arjun to go out and went to a neighbour's house to inform the police. But before that police was informed by somebody else and at about 1.30/2.00 pm police arrested Arjun. On 15.11.2009 he handed over the key of Arjun to the I.O. Police officer seized the key from him by preparing a seizure list and he signed the seizure list. He proved his signature in the seizure list. There is nothing material in the cross-examination of the witness to discard the incriminating part of statement of the witness in respect of extra-judicial confession made before him by the accused. 7. He proved his signature in the seizure list. There is nothing material in the cross-examination of the witness to discard the incriminating part of statement of the witness in respect of extra-judicial confession made before him by the accused. 7. Besides the oral evidence of the child witness(PW26), the following facts and circumstances emerged with all credibility from the statement of the prosecution witnesses:-- (i) The accused appellant Arjun Biwas used to reside with his wife, the deceased Kana and their minor son, PW26, Sagar alias Piyal in his parental house at village Sukanta Pally, Srinagar in the western viti hut and his parents Niarnjan Biswas and Sova Rani Biswas used to reside in the eastern viti hut in the same house complex having same courtyard and they were the only inhabitants of the house at the relevant point of time. (ii) The accused returned home from his workplace at Haryana about 5/6 months before the date of occurrence and started residing in the parental house. (iii) While he went to Haryana for his job he left his wife and minor child with his parents and his parents looked after them. (iv) On 12.11.2009 in the evening at about 6.30/7.00 pm the accused returned home from Srinagar market. (v) In the evening at 7.30/8.30 pm the neighbours heard the sound of beating in the house of the accused and the cries of Kana Biswas, wife of the accused. (vi) The neighbours also heard the voice of the accused, threatening his wife to keep quite and to keep mum. (vii) The neighbours took it casually since it was a regular affair of quarrel and beating in the house of the accused. (viii) The accused was of idle habit and not doing any work after returning from Haryana. (ix) The accused used to consume alcohol and cannabis at random and would quarrel with his parents. (x) He was riotous in nature and used to commit mischief in different manner with neighbours. (xi) He used to ill treat his wife and also used to assault her physically every now and then. (xii) The accused was in loggerhead with his parents. He used to quarrel with his parents on demand of money and also on demand of share in the landed property. (xi) He used to ill treat his wife and also used to assault her physically every now and then. (xii) The accused was in loggerhead with his parents. He used to quarrel with his parents on demand of money and also on demand of share in the landed property. (xiii) On the intervening night of 12.11.2009 and 13.11.2009, at about 12.30/1.00 am the accused arrived in the house of PWs 11 and 14 and on his call PW11 opened the door and the accused wanted water to wash his hands and legs and PW11 noticed bloodstain on his feet. (xiv) PW11 enquired with the accused but he did not give any proper reply. (xv) The accused slept beside PW14 in their house. (xvi) On 13.11.2009 PW14, on being woke up found the accused lying asleep beside him and the accused was found visibly worried. (xvii) The accused made a confession before PWs 11 and 14 that he killed his parents and his wife but PWs 11 and 14 did not take it seriously. Rather they thought that might be there was a quarrel in the house between the accused and his wife and parents. (xviii) The accused gave a key to PW14 and requested him to bring Rs. 3,000/- (rupees three thousand) which he kept in the drawer of his table and PW14 kept the key with him which he subsequently handed over to the I.O. on 15.11.2009 and the I.O. seized the key by preparing seizure list which has been proved before the Court. (xix) In the morning of 13.11.2009, at first, the close door neighbours, i.e. PWs 6, 7 and 8 noticed Sova Rani lying with bleeding injuries in the courtyard and they informed PW3 who, at once went to PW1 and PW1 with local police, village Pradhan, Upa-Pradhan and others rushed to the house of the accused and found the mother of the accused Sova Rani lying dead in the corner of the courtyard by the side of the hut of the accused and the wife of the accused Kana lying in front of the door of her hut with bleeding injury and she was groaning. They also found the minor son of the accused by the side of his mother Kana in the hut. (xx) The accused and his father Niranjan were not found in the house. They also found the minor son of the accused by the side of his mother Kana in the hut. (xx) The accused and his father Niranjan were not found in the house. (xxi) The local people noticed bloodstains leading towards the foot-track of the pond and following it the people made a search in the pond and brought out the dead body of Niranjan Biswas which was kept under the log in the water and Niranjan Biswas was also having with injuries. (xxii) Sisters of accused and their husbands and other relatives also rushed to the house but the accused was found nowhere. (xxiii) Kana was shifted to Srinagar PHC and from there to T.S. District Hospital, Udaipur and she succumbed to the injuries at T.S. District Hospital. (xxiv) Inquest report was prepared over the dead body of Niranjan and Sova Rani and thereafter postmortem examination was done over the dead bodies at Srinagar PHC. Postmortem examination was done over the dead body of Kana at T.S. District Hospital at Udaipur. (xxv) The autopsy surgeons opined that all the three deceased died homicidal death. (xxvi) The accused was arrested from the house of PWs 11 and 14. 8. In his examination under Section 313 of Cr.P.C. the accused in response to question Nos. 9 and 10 admitted that he went to the house of PWs 11 and 14 on the night at about 1.00 am and he sought water for washing his hands and feet to PW11 but he denied the fact that PW 11 noticed bloodstain in his feet. He admitted that he took sleep in the house of PWs 11 and 14. He also admitted in response to question No. 11 that PW11 heard from local people that he killed his parents and wife and, thereafter he was kept confined in the hut by bolting the door from outside and around 2.30/3.00 pm police officer arrested him from their house. He further admitted that he requested PW14, giving him a key to bring Rs. 3,000/- from the drawer of his table. In response to question No. 21 he admitted that his younger brother(PW25) was at Haryana and he came home hearing about the occurrence. 9. Learned senior counsel, Mr. He further admitted that he requested PW14, giving him a key to bring Rs. 3,000/- from the drawer of his table. In response to question No. 21 he admitted that his younger brother(PW25) was at Haryana and he came home hearing about the occurrence. 9. Learned senior counsel, Mr. Deb has argued that the trial Judge committed serious mistake relying on the evidence of PW26, the child witness and accepting the evidence of the child witness, who is not at all reliable the trial Judge came to the finding of guilt of the accused which is not tenable in law. There is no other cogent evidence to arrive at a finding of guilt of the accused. It is contended by Mr. Deb, learned senior counsel that the statement of PW26, the child witness was recorded after about six months and there was every possibility of tutoring the child witness to make a statement as desired by PWs 2, 17 and 25, the sisters and brother of the accused to somehow involve the accused in the commission of crime. It is also contended by Mr. Deb that it is dangerous to depend on the evidence of a child witness to record conviction unless the evidence of such witness is corroborated by other cogent evidence on record. Learned senior counsel argued that in this case the child witness made a clear statement in his cross-examination that he was told by the members of the family of his grandfather to make statement before the court that his father killed his mother and his grandparents, and under such circumstances the trial court committed serious mistake in recording conviction relying the evidence of the child witness. 9.1. Learned Advocate General, Mr. Das, countering the submission of learned senior counsel, Mr. Deb has contended that the fact of this case is quite different and distinguishable than that of ordinary other cases of child witness. Here, the child witness gave evidence against his father. The child is in the custody of the sister of the accused and the accused has no animosity with his sisters. What is the interest of the sisters of the accused in tutoring the son of the accused to make a false statement against the accused? Here, the child witness gave evidence against his father. The child is in the custody of the sister of the accused and the accused has no animosity with his sisters. What is the interest of the sisters of the accused in tutoring the son of the accused to make a false statement against the accused? No doubt, the statement of the child witness was recorded after about six months by the I.O. and, thereafter it was recorded by learned SDJM (PW37) but the child witness made a consistent statement. It is not disputed by the defence that the child was present at the time of occurrence and he is the only survived member who escaped death from the hand of the accused. He was present by the side of his mother when the people of the locality arrived in the house. Possibly, the child could not sleep for the whole night since his mother was found groaning with injuries and there was no other adult member in the house. What a horrible condition the child witness had to face for the whole night and so it was natural for the child to keep mum on the following day. In the given facts and circumstances of the case, learned Advocate General has submitted that the child witness made a consistent and inspiring statement. There is nothing to draw an inference that he made a false statement as tutored by his aunts. He did not make any statement about the killing of his grandparents since he did not see the killing of his grandparents but he made the statement what he had seen that his father killed his mother in the house. He simply stated that he found his grandmother lying in the courtyard and nothing more. So, in the circumstances of the case, though the statement of the child witness was recorded after about six months the trial court committed nothing wrong in relying the evidence of the child witness. APPRECIATION OF THE EVIDENCE OF CHILD WITNESS 10. There is no dispute that the child witness was present in the house who survived the killing massacre. 10.1. Section 118 of the Evidence Act prescribes that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, etc. etc. 10.1. Section 118 of the Evidence Act prescribes that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, etc. etc. According to law. a child of tender age can be allowed to testify if the child has intellectual capacity to understand the questions and to give rational answers thereto. As we find on record, PW26 was first examined by the second I.O. i.e. PW36 for the first time on 29.04.2010. The first I.O., i.e. PW34 in his deposition stated that he tried to examine the minor son of Arjun but considering the tender age and mental condition he did not take the full-fledged attempt to examine him. The child was produced before the learned SDJM (PW37) on 17.05.2010 and his statement in verbatim was recorded by learned Magistrate which is proved as Exbt. 19. It is stated by PW3 7 in her deposition that the boy-was of tender age and no oath was administered and she put several questions to the minor boy and was satisfied that the boy was capable of giving rational answers and what the boy stated in verbatim she recorded it. 10.2. There is consistence between the statement recorded under Section 164 of Cr.P.C. and the evidence of the witness before the court. The trial Judge while recording the statement of the child put several questions and recorded his satisfaction that the child was capable of giving rational answers. 10.3. The legislature has underlined the basic requirement of a person's understanding of the obligation to speak the truth and to give an accurate impression and possession of the mental capacity at the time of the occurrence concerning which he has to testify and to receive an accurate impression of it. This would be more so in case the witness is a child of tender years. The evaluation of the testimony of a child witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy prey to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. The evidence of a child witness requires close scrutiny. The evaluation of the testimony of a child witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy prey to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. The evidence of a child witness requires close scrutiny. As a matter of prudence corroboration is sought for but in a given circumstance, a child witness can be relied on without corroboration if such evidence of a child witness inspires confidence in the judicious mind of a court and the court records sufficient reasons for relying on such uncorroborated testimony of a child witness as corroboration in always a question of fact, not a question of law. Corroboration is not a rule of evidence. Rather, it is a rule of prudence. 10.4. The Supreme Court in the case of Alagupandi @ Alagupandian v. State of Tamil Nadu reported in (2012) 10 SCC 451 has held that a child witness can be a competent witness provided statement of such witness is reliable and truthful. The court has also held that while assessing evidence of a child witness, court must carefully observe his/her demeanour to eliminate likelihood of tutoring. Conviction can be allowed to stand without any corroboration, but as a rule of prudence it is always desirable to seek corroboration of such evidence from other reliable evidence on record. 10.5. In the case of K. Venkateshwarlu v. State of Andhra Pradesh reported in (2012) 8 SCC 73 , the Supreme Court has observed that the testimony of a child witness can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers and that the child is not tutored and his evidence has a ring of truth. 10.6. In the case at hand, indisputably, the child was present in the scene of occurrence. He gave statement against his father. Defence raised vulnerability and susceptibility of the child witness on the ground that he may be tutored by his aunts to depose against his father. The aunts have no animosity with the father of the child to make a false charge. The child was in the care of his paternal aunt, PW17. He gave statement against his father. Defence raised vulnerability and susceptibility of the child witness on the ground that he may be tutored by his aunts to depose against his father. The aunts have no animosity with the father of the child to make a false charge. The child was in the care of his paternal aunt, PW17. Asking the child to state before the court what he had seen cannot be termed to be tutoring. If the child was asked to narrate the fact, what he has seen, by PW17 or by PW2, as alleged, in our considered opinion, cannot be termed as a tutoring to make a false statement. No doubt, a witness under an oath is expected to make a true statement but where a child witness who is not administered an oath, may make any statement and the court of law while accepting his statement is, therefore, required to remain very sensitive and cautious. In the given facts and circumstances of this case if the child witness disclosed the fact within a few days to PW2 and PW17 or to PW25, the I.O. might examine the child at the earliest opportunity and record his statement. However, in the given facts and circumstances of the case, where the child is making the statement against his father and he is under the custody of his paternal aunts, who has no animosity with his father, we find it difficult to discard of the evidence of the child witness at the threshold only on the ground that his statement was recorded after six months for the first time by the I.O. or the SDJM under Section 164 of Cr.P.C. However, as a rule of prudence we may look for the other evidence on record. Since in the facts and circumstances of this case, the other evidence on record, which has already been discussed, the incriminating circumstance, reproduced hereinbefore, is supporting the prosecution case, as narrated, we may fairly accept the evidence of the child witness as a corroborating evidence of the other evidence on record. We, therefore, find no substance at all to accept the argument of learned counsel, Mr. Deb, on this score. MOTIVE. PREPARATON AND PREVIOUS OR SUBSEQUENT CONDUCT. 11. Learned senior counsel, Mr. We, therefore, find no substance at all to accept the argument of learned counsel, Mr. Deb, on this score. MOTIVE. PREPARATON AND PREVIOUS OR SUBSEQUENT CONDUCT. 11. Learned senior counsel, Mr. Deb has argued that the prosecution has failed to discharge its initial burden of proving the fact that the accused was present in his house on the alleged night of occurrence. The neighboured were highly inimical to the accused and his family as a whole. So, they might exaggerate or add facts. There are lot of inconsistencies and discrepancies in the evidence of the neighbours, who alleged to have heard the voice of the accused and cries of his wife in the previous evening at around 7.00/8.00 pm. While the statements of the witnesses suffer from inconsistencies and discrepancies here and there, a cumulative effect of the minor discrepancies created a dent in the entire prosecution story. Since the prosecution failed to discharge its initial burden of proving the fact that the accused was present on the night of occurrence in his house, no inference can be drawn under Section 106 of the Evidence Act. 11.1. Countering the submission of learned senior counsel, Mr. Deb, learned Advocate General, Mr. Das has argued that minor discrepancies are guarantee of truth. The neighbours were not inimical to the accused or his family. In their statements, the witnesses stated about the quarrelling, beating, etc. in the house of the accused, which were routine affairs and, therefore they used to avoid the family. Though they heard the cries of Kana but they did not enquire about the cries since it was a regular affair. Minor discrepancy what is pointed out by learned counsel, Mr. Deb, according to learned Advocate General, are rather a guarantee of truth. Referring to the previous and subsequent conducts of the accused learned Advocate General has submitted that all the witnesses including that of the younger brother and sisters of the accused and other witnesses, who happened to be the relatives of the accused and the victims of the occurrence, categorically stated that the accused used to quarrel with his parents on demand of money and share of landed property every now and then and he used to assault his wife physically and he never looked after his wife as a responsible husband. The discrepancies should be ignored and the material fact should be accepted for fair ends of justice. 11.2. Learned senior counsel, Mr. Deb put reliance on the following case laws: (i) State of W.B. v. Mir Mohammad Omar & Ors. reported in (2000) 8 SCC 382 , (ii) Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 68 7, (iii) Miller v. Minister of Pensions reported in [1947] 2 All ER 372. 11.3. Learned Advocate General, Mr. Das referred the case laws of State of Rajasthan v. Kashi Ram reported in AIR SCW 5768 and Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 , which is also referred by learned counsel of the appellant. 11.4. Section 8 of the Evidence Act prescribes that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 11.5. Section 106 of the Evidence Act prescribes that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 11.6. The Supreme Court in the case of Krishna Mochi & Ors. v. State of Bihar reported in AIR 2002 SC 1965 : (2002) 6 SCC 81 , has held that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. 11.7. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. 11.7. Regarding contradictions, inconsistencies, exaggerations or embellishments in the appreciation of evidence in a criminal trial, His Lordship Hon'ble Justice B.N. Agrawal of the Supreme Court in Krishna Mochi (supra) has observed-- It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, and/or close to powers and musclemen or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune form decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune form decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. Thus, in a criminal trial a prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbled, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. 11.8. In the case at hand, the neighbouring witnesses unequivocally made statements that the accused was in his house. They could identify his voice, threatening his wife to keep quite and not to raise her voice. They heard the sound of beating. They also heard the cries of Kana in the house of the accused. The witnesses had no animosity with the accused. Rather they used to avoid the family of the accused because the accused was indulged in assaulting his wife frequently and would enter into quarrel with his parents every now and then. The presence of the accused in the night of occurrence in his house has been overwhelmingly established in the evidence of the neighbouring witnesses, who heard his voice threatening his wife. At night he went to the house of PWs 11 and 14, about three kilometers away from his house and took sleep in that house which he categorically admitted in course of his examination under Section 313 of Cr.P.C. This conduct of the accused has created a serious incriminating network of fact against him. 11.9. At night he went to the house of PWs 11 and 14, about three kilometers away from his house and took sleep in that house which he categorically admitted in course of his examination under Section 313 of Cr.P.C. This conduct of the accused has created a serious incriminating network of fact against him. 11.9. Normally in criminal cases, the burden of proof is on the prosecution to prove the ingredients of the offence. But in a case where the accused is found shrouded with suspicion and is enmeshed in an incriminatory network of facts, it becomes his duty to explain the circumstances yielding to an adverse inference against him and if he omits to do so or fails in creating a dent in the prosecution story, his omission assumes a sinister significance. 11.10. In the case of Mir Mohammad Omar (supra), the Supreme Court in paragraphs 31, 33 and 37 of the judgment has observed:-- 31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 37. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 11.11. In the case of Trimukh Maroti Kirkan (supra), the Supreme Court in paragraphs 12, 15, 20 and 21 of the judgment has observed:-- 12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there wilt be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there wilt be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 20. In Ram Gulam Chaudhary v. Sate of Bihar : (2001) 8 SCC 311 : 2001 SCC (Cri) 1546 the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran: (1999) 8 SCC 679 : 2000 SCC (Cri) 40 (SCC para 6); State of U.P. v. Dr. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran: (1999) 8 SCC 679 : 2000 SCC (Cri) 40 (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal: (1992) 3 SCC 300 : 1992 SCC(Cri) 642 : AIR 1992 SC 2045 (SCC para 39 : AIR para 40); State of Maharashtra v. Suresh : (2000)1 SCC 471 : 2000 SCC (Cri) 263 (SCC para 27); Ganesh Lal v. State of Rajasthan; (2002) 1 SCC 731 : 2002 SCC (Cri) 247 (SCC para 15) and Gulab Chand v. State of M.P.: (1995) 3 SCC 574 : 1995 SCC (Cri) 552 (SCC para 4]. 11.12. Referring to Miller v. Minister of Pensions (supra) the Supreme Court in the case of Iqbal Moosa Patel v. State of Gujarat reported in (2011) 2 SCC 198 in paragraphs 23 and 24 of the judgment has observed-- 23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 372: ...That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt....' 88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. 24. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. 24. Reference may also be made to the decision of this Court in Sucha Singh v. State of Punjab:: (2003) 7 SCC 643 : 2003 SCC (Cri) 1697 where this Court has reiterated the principle in the following words: 20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh : AIR 1990 SC 209 ). The prosecution is not required to meet any and every hypothesis put forward by the accused.... A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. 11.13. In the case of Kashi Ram (supra) the Supreme Court in a case of murder of the wife and daughter of the accused has held that the respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. In that reported case the accused was not in cordial term with his wife. On the evening of February 3, 1998 he was seen in his house with his wife (deceased). Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. In that reported case the accused was not in cordial term with his wife. On the evening of February 3, 1998 he was seen in his house with his wife (deceased). The house of the respondent was found locked on the 4th, 5th and 6th February, 1998. On February 6, 1998 when his house was opened the dead bodies of his wife and daughters were found, and the medical evidence established that they had been strangulated to death, the cause of death being asphyxia. Since the respondent was not traceable the mother of the deceased became anxious to know about their whereabouts and requested prosecution witnesses to search for them. In the course of investigation the respondent never appeared at any stage, and for the first time he appeared on the scene when he was arrested on February 17, 1998. Even after his arrest he did not offer any exculpatory explanation to discharge the burden under Section 106 of the Evidence Act. These above said incriminating circumstances form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence. The High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore the order of acquittal of accused passed by the High Court would be liable to be set aside. 11.14. In the present case, the accused was in his house with his parents, wife and child. His presence in his house in the evening has been proved with clinching evidence. At midnight he took shelter in the house of PWs 11 and 14. He admitted that he took shelter in that house on that night and he was arrested by police from that house. This incriminating network of fact established the prosecution case against the accused and the accused failed to come out with an explanation as to how his parents and wife killed in his house and what had happened in his house. This incriminating network of fact established the prosecution case against the accused and the accused failed to come out with an explanation as to how his parents and wife killed in his house and what had happened in his house. His complete silence in this regard has rather strengthened the prosecution case and a presumption is to be drawn that the accused and none else has committed the murder of his wife and parents. 11.15. The motive behind the commission of crime is best known to the accused. Prosecution led evidence that the accused was idle in nature. After returning from Haryana he was not engaged in any work. He used to quarrel with his parents demanding money and share in the landed property. The quarrel between the accused and his parents was a regular affair as stated by the witnesses, especially by the sisters of the accused and their husbands. The accused was not at all dutiful to his wife. He rather used to torture his wife physically every now and then. It is evident in the evidence on record. He used to take alcohol and cannabis and remained intoxicated. As it appears, he was really a sheer burden to his family, his wife and parents. He, definitely, set up his mind to eliminate his parents and wife for the reason best known to him and therefore he might have committed the crime. This is a case based on the evidence of eyewitness as well as the attending circumstances. In the case of circumstantial evidence, motive, no doubt, bears an important significance. It is a settled law that motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that motive has not been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. CIRCUMSTANTIAL EVIDENCE-APPRECIATION 12. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that motive has not been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. CIRCUMSTANTIAL EVIDENCE-APPRECIATION 12. The principal fact or factum probandum may be proved by direct evidence or indirectly by means of certain inferences drawn from factum probans, that is the evidentiary facts. It is a settled law that the circumstances from which the conclusion of guilt is drawn should be fully proved. The circumstance should be conclusive in nature and all the facts so established should be consistent only with the hypothesis of guilt and consistent with the innocence. The circumstances should, to a moral certainty exclude the possibility of guilt of any person other than that of the accused. 12.1. In the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 the Supreme Court has laid down five principles for a proof of guilt on the basis of circumstantial evidence as follows: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (iii) the circumstances should be of a conclusive nature and tendency. (iv) they should exclude every possible hypothesis except the one to be proved. and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 12.2. In the case at hand, the accused with his wife and child was residing in a separate mess in his parental house in the western viti hut. His old aged parents were residing in the eastern viti hut. He was present in the house in the evening, assaulting his wife and the cry of his wife was heard by the neighbours. He was threatening his wife to keep quite. Thereafter, what happened in his house? His old aged parents were residing in the eastern viti hut. He was present in the house in the evening, assaulting his wife and the cry of his wife was heard by the neighbours. He was threatening his wife to keep quite. Thereafter, what happened in his house? He was only present to explain since except his infant son (PW26) all other were killed. What prompted him to take shelter in the house of PWs 11 and 14 at midnight, he failed to explain. This incriminating circumstance has established an unbroken chain and the evidence of PW26, the child witness, has strengthened the circumstantial evidence and vice versa. There is no circumstance brought on record that anybody else except the accused committed the gruesome murder. From whatever angle the incident is looked, in the given facts of the case, would appear that the accused has committed the crime and none else. PLEA OF INSANITY 13. During cross-examination of PWs 2, 4, 17, 18 and 25, the plea of insanity has been taken on behalf of the accused. But none of the witnesses supported the plea. Except suggestion there is no evidence that the accused was suffering from insanity. 13.1. Section 84 of IPC prescribes that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. 13.2. Section 105 of the Evidence Act prescribes that the burden of proving that case of accused comes within exceptions is on him. The trial Court, we find, has carefully considered the plea of insanity and arrived at a reasonable finding. 13.3. Learned senior counsel, Mr. Deb has argued that since a plea was taken on behalf of the accused it was necessary to take a medical opinion. Learned Advocate General, Mr. Das, on the contrary, has submitted that a mere plea by putting suggestion is of no consequence and there is no need for the court to attach any importance on such suggestion. Deb has argued that since a plea was taken on behalf of the accused it was necessary to take a medical opinion. Learned Advocate General, Mr. Das, on the contrary, has submitted that a mere plea by putting suggestion is of no consequence and there is no need for the court to attach any importance on such suggestion. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84, can only be established from the circumstances which preceded, attended and followed the crime. 13.4. In the present case, there is no evidence that the accused was suffering from any sort of insanity/unsoundness of mind at the time of commission of the alleged crime. Rather it is on record that the accused used to take liquor and also cannabis and sometimes used to keep mum and his father had consulted doctors for the purpose. Except suggestion there is no evidence that he was suffering from legal insanity at the time of alleged occurrence. 13.5. The word, 'suggestion', as in common parlance, as found in regular court's procedure is to suggest a fact to a witness either inviting his admission or denial specific on that fact during his cross examination. Though nowhere the matter of 'suggestion' is found place in any statute especially in the law of evidence, It is, however, a time honoured practice of court that the lawyers or the party himself, while cross examining a witness, either in the form of offering a denial to the facts deposed by that witness or to place a new fact to the mouth of a witness to test whether he admits the same or not, facts in the form of suggestion are put to the witness. This old practice has been evolved from the concept of law of admission as has been dealt with in Chapter II of Indian Evidence Act, 1872. This old practice has been evolved from the concept of law of admission as has been dealt with in Chapter II of Indian Evidence Act, 1872. While giving denial to the facts deposed by way of suggestion, it indicates that these facts are not admitted by the party. In case no denial is given by way of suggestion, does not necessarily mean that these facts have been admitted by the party cross-examining. In a criminal trial, the accused may keep himself silent as to the facts deposed by a witness against him, as the burden lies with prosecution to prove the relevant facts constituting offence alleged beyond reasonable doubt any fact put to the evidence in the form of suggestion, if denied by the witness, cannot he regarded as an evidence in respect of what suggested so far. We may gainfully refer here an observation made by the Division Bench of the Gauhati High Court in the case of State v. Md. Misir Ali & Ors. reported in AIR 1963 Ass 151 : 1963 CriLJ 255. In paragraph 9 of the judgment it was observed- ...Mere suggestions not supported by any specific statements made by the accused persons and not supported by any defence evidence would have no evidentiary value. No importance could be attached to the above suggestions made during the cross-examination of P.Ws.1 and 3 in this case.... The Division Bench of Patna High Court, in the case of Sitaram Pandey & Ors. v. State of Bihar reported in : 1976 CRILJ 800 also observed the same view. 13.6. In the case of T.N. Lakshmaiah v. State of Karnataka reported in AIR 2001 SC 3828 , the Supreme Court in para 14 of the judgment has observed: 14. It is admitted that the appellant in this case, has not led any evidence in proof of the plea of insanity. There is nothing on the record to infer that the accused was of unsound mind at or about the time of occurrence. His behaviour at the time and subsequent to the commission of the crime clearly indicates that he knew and was capable of knowing the nature of the act done by him. Being annoyed with the attitude of the deceased, he appears to have taken a conscious decision of taking them away from the house and committed the crime at a secluded place. Being annoyed with the attitude of the deceased, he appears to have taken a conscious decision of taking them away from the house and committed the crime at a secluded place. He had all faculties to safely reach home and sleep for the night. At no point of time his behaviour is shown to be abnormal. The plea, though not strictly but by implication, appears to have been taken by the accused for the first time when his statement was recorded under Section313 of the Code of Criminal Procedure. We have found no record allegedly showing the appellant to be suffering from any mental disease when he is stated to have applied for bail. The plea raised, on the face of it, is afterthought and bereft of any substance. The opinion of the doctor obtained after about 8 years also does not indicate any history of medical disorder of the appellant. Even at the time of examination in the year 1999, he was diagnosed of suffering from "moderate depression" which is likely to be there is the circumstances where such person is confined in prison on the charge of the murder of his wife and son. We are satisfied that the appellant was sane and understood the implications of the act done by him and in no case was having unsound mind within the meaning of Section 84 of the Indian Penal Code, at the relevant time. 13.7. The trial court has referred the case of Surendera Mishra v. State of Jharkhand reported in (2011) 11 SCC 495 wherein in para 11 of the judgment the Supreme Court observed: 11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. Expression "unsoundness of mind" has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code. 13.8. We are, therefore, of the considered opinion that the trial court was absolutely right in holding that the accused was not suffering from any sort of insanity and, therefore, the convict-appellant is not entitled to get the benefit of Section 84 of IPC. EXTRA-JUDICIAL CONFESSION 14. This is an admitted fact that the accused took shelter in the house of PWs 11 and 14 on the night of occurrence. It is obvious to presume that the accused reposed his confidence on PWs 11 and 14, and therefore took shelter in the house of PWs 11 and 14 and he handed over the key of his drawer to PW14 to bring the money he left in his house, perhaps with a view to escape from the village. PWs 11 and 14 found him visibly worried and perturbed. He confessed before them that he committed murder of his wife and parents. PWs 11 and 14 are the relatives of the accused, which is not disputed. Certainly, there was no reason for those witnesses to make a false statement against the accused. They were examined by the I.O. immediately after the occurrence. While those witnesses were the persons of confidence of the accused and while the accused made such a confession before them, we find no reason at all to disbelieve PWs 11 and 14 in respect of the confession made by the accused. They were examined by the I.O. immediately after the occurrence. While those witnesses were the persons of confidence of the accused and while the accused made such a confession before them, we find no reason at all to disbelieve PWs 11 and 14 in respect of the confession made by the accused. The extrajudicial confession is, no doubt, a weak piece of evidence but in a given case where the extrajudicial confession is made to a person of confidence voluntarily and the witness has no animosity with the accused or has nothing to have an illegal gain, in such a case an extrajudicial confession alone can be the basis of conviction. Here, in this case, the accused not only took shelter in the house of PWs 11 and 14 but also took PW14 at his confidence for bringing the money from his house and, therefore, handed over the key of his drawer to PW14, and such cogent evidence of the prosecution has been ignored by the trial court. In our considered opinion, the trial court was not right in ignoring such evidence. We cannot agree with the submission of learned senior counsel, Mr. Deb that the extrajudicial confession was rightly discarded by the trial court. Rather we are agreeable with the submission of learned Advocate General that PWs 11 and 14, if closely read and considered, they are liable to be believed in respect of the confession made by the accused, which is not shaken in any other manner. 15. In view of the discussions made above, we have no hesitation to arrive at a conclusion that the accused committed the murder of his wife and parents. It is obvious that the accused deliberately planned the murders and meticulously executed it. How brutally he killed his wife is evident in the evidence of PW31. There were multiple injuries on the person of his wife including dry bum injuries. The accused mercilessly tortured his wife and when she raised cry he threatened her to keep mum which was heard by the close neighboured. The voice of the accused was also heard by the neighbours who were passing through the road running by the side of the house of accused on that night, and we find no reason to disbelieve this fact which is corroborated by other evidence on record. The voice of the accused was also heard by the neighbours who were passing through the road running by the side of the house of accused on that night, and we find no reason to disbelieve this fact which is corroborated by other evidence on record. The accused brutally killed his wife which is witnessed by his minor son PW26. It is evident that he has killed his parents also brutally and thereafter at midnight he left for the house of PWs 11 and 14 and took shelter there in that house wherefrom he was arrested by police. Under what circumstances he killed his wife and parents, he did not disclose. But the nature of injuries and the other circumstances, such as putting his father's body in the water of the pond, speaks of extreme brutality and it was so cruel and diabolic that it is to be presumed that the accused lost all human instinct. His mother's dead body was lying by the side of the hut in a pool of blood. As already stated he did not come out with any explanation. He killed his father, dragged the dead body to the pond and put it under a log in the water. A log in the water is to be presumed to have lighter in water and thereby it was possible for the accused alone to put his father's body under the log and, thereby the accused tried to cause disappearance of evidence, but unfortunately, there was no charge under Section 201 of IPC. The accused, in our considered opinion, acted in the most cruel and inhuman manner and murdered his wife and parents in an extreme brutality, grotesque and diabolic, revolting and dastardly manner. The old parents and the helpless wife could not resist the accused, a young man of 42 and the accused eliminated all of them. The charge of murders framed against the accused, therefore, established with all certainty. WHETHER DEATH SENTENCE APPROPRIATE 16. Learned senior counsel, Mr. Deb has submitted that the accused was jobless. If it is not believed that the accused was suffering from insanity, at least, it is on record that the accused was under extreme mental and emotional distress, and under such circumstances, it would not be proper for the court in holding the extreme penalty of death sentence. Learned senior counsel, Mr. Deb has submitted that the accused was jobless. If it is not believed that the accused was suffering from insanity, at least, it is on record that the accused was under extreme mental and emotional distress, and under such circumstances, it would not be proper for the court in holding the extreme penalty of death sentence. In support of his contention, learned senior counsel has referred the following case laws: (i) Sangeet & Anr. v. State of Haryana reported in : (2013) 2 SCC 452 , (ii) Sanaullah Khan v. State of Bihar reported in (2013) 3 SCC 52 and (iii) Mohinder Singh v. State of Punjab reported in (2013) 2 SCC 452 . 16.1. Learned Advocate General, countering the submission of learned senior counsel, Mr. Deb, relying on the same decisions has submitted that the accused planned and executed the murders of his wife and parents and, so, the case is to be decided with robust common sense and judicious mind. The court should not hesitate to award death sentence in such a case where the crime test and criminal test as well as the test of rarest of rare case have been clearly established. 16.2. In the case of Balwant Singh v. State of Punjab reported in : AIR 1976 SC 230 , the Supreme Court observed that under Section 354(3) the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now under the new Code and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case. But to indicate just a few, such as, the crime has been committed by a professional or a hardened criminal, or it has been committed in a very brutal manner or on a helpless child or a woman or the likes. 16.3. But to indicate just a few, such as, the crime has been committed by a professional or a hardened criminal, or it has been committed in a very brutal manner or on a helpless child or a woman or the likes. 16.3. In the case of Joseph Peter v. State reported in : AIR 1977 SC 1812 the Supreme Court held-- Section 354(3) of the new code gives the convicting judge on a murder charge, a discretion to choose between capital sentence and life term. It is true in the present code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence, an exception, to be resorted to for reasons to be stated. The judge is to draw his inspiration from consecrated principles. He is not to yield a spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy disciplined by system, and subordinated to the primordial necessity of order in the social life. The guide lines laid down by the Supreme Court, in its precedents are that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied, by brutal dealing with the cadaver, the court can hardly help in the present state of law, avoiding infliction of the death penalty. When discretion has been exercised by the trial court and it is difficult to fault that court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demolish the discretionary exercise of power by the inferior Court. (Emphasis supplied) 16.4. The Division Bench of the Gauhati High Court in Mithu Kalita @ Mitu Kalita reported in 2006 (1) GLT 393 while dealing with a death reference and a connected appeal preferred by the convict considered the law where a sentence of death is appropriate. In that reported case a minor girl aged about 5/6 years was sexually molested and, thereafter, she was murdered in a barbaric manner most ghastly and beastly and the dead body was thrown in the pond. In that reported case a minor girl aged about 5/6 years was sexually molested and, thereafter, she was murdered in a barbaric manner most ghastly and beastly and the dead body was thrown in the pond. The court, taking into consideration the law laid down by the Apex Court in the case of Bachan Singh v. State of Punjab reported in AIR 1980 SC 898 : (1980) 2 SCC 684 , Machhi Singh v. State of Punjab reported in AIR 1983 SC 957 : (1983) 3 SCC 4709, Raja Ram Yadav & Ors. v. State of Bihar reported in 1996 CRILJ 2307, in paragraphs 64 to 67 observed thus- 64. While considering the question of death sentence, what a court has to understand is as to whether there is any judicial limitation to the imposition of death penalty and, if so, what is the extent of such limitation? The answer to this momentous question is not very far to seek. Made it clear, the Constitution Bench, in Bachan Singh (supra), that the court would not venture to formulate rigid standards as regard the cases, which demand capital punishment. Further clarified the Supreme Court, in Bachchan Singh (supra), that it is neither practicable nor desirable that the criteria of applying discretion by the courts to sentence a guilty person to death be laid down exhaustively and in rigid standards. However, the broad criteria guiding the courts in respect of imposition of death penalty were given shape in Bachan Singh (supra) by making it clear that the extreme penalty of death can be inflicted only in gravest cases of extreme culpability. Thus, the rule limiting the death penalty to "the murder most foul" is, now, christened 'in the rarest of rare cases'. In other words, the Supreme Court made it clear in Bachan Singh (supra) that awarding of sentence of life imprisonment is the general rule now and that only special facts and circumstance of a given case may warrant the awarding of capital punishment. It was held in Bachan Singh (supra) that normal rule is that the offender shall be sentenced to imprisonment for life, but the court may, when the circumstances of a given case so justify, depart from this normal rule and impose capital punishment. The court, however, must justify the imposition of the harshest punishment of death by assigning 'special reasons'. It was held in Bachan Singh (supra) that normal rule is that the offender shall be sentenced to imprisonment for life, but the court may, when the circumstances of a given case so justify, depart from this normal rule and impose capital punishment. The court, however, must justify the imposition of the harshest punishment of death by assigning 'special reasons'. It may not be out of place to reiterate here that 'special reasons' cannot remain confined to either crime or criminal; rather, the 'special reasons' may relate to the crime or to the criminal and, in many cases, the 'special reasons' may relate to the 'crime' as well as the 'criminal'. However, what was made clear and authoritatively pronounced in Bachan Singh (supra) is that the death penalty cannot be imposed except 'in the rarest of rare cases', when alternative option is 'unquestionably foreclosed' inasmuch as the Apex Court in Bachan Singh (supra) observed thus, "A real and abiding concern for the dignity of human postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases, when the alternatively option is unquestionably foreclosed.' 65. In Machhi Singh v. State of Punjab reported in (1980) 2 SCC 684 , the guidelines, emerging from Bachan Singh's case (supra), have been culled out as follows: (i) The extreme penalty of death need not be inflicted except to gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. 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 likes to be drawn up and in doing so the mitigating circumstances has 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. 66. (iv) A balance sheet of aggravating and mitigating circumstances likes to be drawn up and in doing so the mitigating circumstances has 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. 66. In order to apply the guidelines aforementioned, following questions, observed the Supreme Court, in Machhi Singh (supra), may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 67. Further pointed out the Supreme Court in Machhi Singh's case (supra) that in rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the upholders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The Apex Court, however, clarified, in Machhi Singh (supra), that the community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness, e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in a cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed. (5) When the victim of murder in an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murder is in a dominating position, or a public figure generally loved and respected by the community. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. 16.5. In the case of Sevaka Perumal v. State of Tamil Nadu reported in (1991) 3 SCC 471 , the Apex Court observed thus: 9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of order should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep seated personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P.: (1987) 3 SCC 80 : 1987 SCC (Cri) 379 : (1987) 2 SCR 710 this Court while refusing to reduce the death sentence observed thus: (SCC p.82 para 6) It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. 10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 16.6. In the case of Dhananjoy Chatterjee @ Dhan v. State of West Bengal reported in : (1994) 2 SCC 220 , the Apex Court observed thus: 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. 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. 16.7. In the case of Mithu Kalita (supra) the Gauhati High Court observed thus-- 72. The manner in which the innocent and helpless child was put to repeated attempt of rape and, ultimately, killed were, as already indicated hereinabove, most inhuman, barbaric and dastardly. The accused, as pointed out hereinabove, exhibited complete absence of human feelings and sensitivity during the course of commission of the offence and for fairly long time thereafter. The dastardly act of the accused becomes all the more inhuman, barbaric and beastly, when we find that the child, in question, had in no way sexually excited the accused and she became a victim of revenge not because of her own fault but because of the fact that her father used to call the accused a thief. In view of the fact that the accused had remained in jail on several occasions for being allegedly involving in offences of theft, the fact that he had become a terror in his village are not in dispute. What also cannot be ignored is that the accused did not surfer from any instinctive remorse; rather, he tried to abscond and behave that he is wholly ignorant of what have happened to the child. In fact, he behaved like a person that no wrong had been done by him and that he was completely ignorant so much so that even when he was apprehended, he tried to bluff his weigh out by telling the people that he had sold the child to someone from Amchoi. Coupled with the above, these un-ignorable circumstances, the Court have also to bear in mind the reaction of the society to which both the victim and the accused belonged. The Supreme Court has made it clear in Machhi Singh (supra) that when a murder is committed in an extreme revolting manner, the community would be justified in expressing its extreme indignation to such act of the accused. The Supreme Court has made it clear in Machhi Singh (supra) that when a murder is committed in an extreme revolting manner, the community would be justified in expressing its extreme indignation to such act of the accused. In the case at hand, the accused did not merely throttle the child to death, what he, in fact, did was to put the head of the child inside the water and lifted her legs up and in this position made the helpless child suffocated to death. The manner of killing the child was, to say the least, ghastly, grotesque and beastly. A perpetrator of such offence, as the accused has committed, and the barbaric manner in which the offences have been committed, leave no room for doubt in the mind of this Court that the present one is such a case, which falls within the category of rarest of rare cases and the alternative option of letting the accused off with imprisonment for life is 'unquestionably foreclose. 16.8. In the case of Shankar Kisanrao Khade v. State of Maharashtra reported in (2013) 5 SCC 546 , the Supreme Court has taken pain of discussing all its earlier judgments in respect of extreme penalty of death sentence. The case of Sanaullah Khan (supra) was decided on February 15, 2013. The case of Sangeet (supra) was decided on November 20, 2012 and the case of Mohinder Singh (supra) was decided on January 28, 2013. In the case of Shankar Kisanrao Khade the previous decisions in the cases of Sanaullah Khan, Sangeet and Mohinder Singh were discussed. So, we consider it not necessary to note the observation of the Apex Court in the cases of Sanaullah Khan, Sangeet and Mohinder Singh (supra) since we are taking note of the latest judgment of the Apex Court in the case of Shankar Kisanrao Khade (supra). In that reported case a minor girl with intellectual disability (moderate), aged about 11 years, was subjected to series of acts of rape, sodomy and murder by an accused aged about 52 years and the accused was held guilty of committing offence punishable under Sections 363, 366-A, 376, 302and 201 of IPC. He was sentenced to death for murder and also sentenced to imprisonment for life on other counts of the offence. He was sentenced to death for murder and also sentenced to imprisonment for life on other counts of the offence. The Apex Court referring to its all previous judgments has held that the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of the rare cases. In some cases capital punishment was awarded on the basis of 'crime test' even if the 'criminal test' was not satisfied. In some cases capital punishment was awarded both on 'crime test' and 'criminal test'. In some cases capital punishment was awarded both on 'crime test', 'criminal test' and 'rarest of rate case test' (R-R test). In some cases capital punishment was awarded by applying the balancing test i.e. by balancing the mitigating and aggravating circumstances. The Court held that in some cases death penalty was commuted because 'criminal test' was not fully satisfied, i.e. some mitigating circumstances were found in favour of the accused, like the accused had no previous criminal record or young age of the accused, or there was no premeditation for commission of the crime or there being the possibility of reformation of the accused, etc. The nature, motive, and impact of crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are some of the factors the court may take into consideration while dealing with such cases. 16.9. In paras 80 and 81 of the judgment in Shankar Kisanrao Khade (supra) the Apex Court observed that it is difficult to practically apply the "rarest of rare" principle since there is a lack of empirical data for making the twofold comparison between murder (not attracting death penalty) and murder (attracting death penalty). It is this inability to make a comparative evaluation and due to a lack of information and any detailed study that the application of the rarest of rare principle becomes extremely delicate thereby making the awarding of a death sentence subjective. 16.10. In para 52 of the judgment in Shankar Kisanrao Khade (supra) the Court held: 52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". In para 52 of the judgment in Shankar Kisanrao Khade (supra) the Court held: 52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc., the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society-centric" and not "Judgecentric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges. 16.11. While appreciating the fact of that reported case the court has observed that the victim was aged about 11 years on the date of incident, a school-going child totally innocent, defenseless and having moderate intellectual disability. A certificate issued by the Handicap Board disclosed that the girl was physically handicapped and was having moderate mental retardation. Evidence of PW10, PW 12 and PW 13 also corroborates the fact that she was a minor girl with moderate intellectual disability, an aggravating circumstance which goes against the accused. Vulnerability of the victim with moderate intellectual disability is an aggravating circumstance. The accused was a fatherly figure aged 52 years. Evidence of PW10, PW 12 and PW 13 also corroborates the fact that she was a minor girl with moderate intellectual disability, an aggravating circumstance which goes against the accused. Vulnerability of the victim with moderate intellectual disability is an aggravating circumstance. The accused was a fatherly figure aged 52 years. PW3, doctor, who conducted the postmortem, deposed and stated in the report the ghastly manner in which the crime was executed. Rape and sodomy were committed on more than one occasion and the manner in which rape as well as murder was executed had been elaborately discussed in the oral evidence as well as in report. The action of accused not only was inhuman but barbaric. Ruthless crime of repeated actions of rape (and sodomy) followed by murder of a young minor girl who was having moderate intellectual disability, shocks not only the judicial conscience, but the conscience of the society. The crime test has been satisfied fully against the accused. The Court has also observed that considering the age of the accused, middle-ager of 52 years, reformation or rehabilitation is practically ruled out The criminal test has been fully satisfied against the accused and there are no mitigating factors favouring the accused. The Court has observed that even though all the tests have been satisfied in the case, the extreme sentence of death penalty was not warranted since one of the factors which influenced the High Court to award death sentence was the previous track record of the accused. The Apex Court held that there were several criminal cases pending against the accused which were taken into consideration by the High Court while awarding death penalty and the apex Court has held that mere pendency of few criminal cases as such is not an aggravating circumstance to be taken note of while awarding death sentence unless the accused is found guilty and convicted in those cases. The Supreme Court, therefore, in the given facts of that case has awarded life sentence consecutively to suffer for the murder, rape, abduction and sodomy, etc. The Supreme Court, therefore, in the given facts of that case has awarded life sentence consecutively to suffer for the murder, rape, abduction and sodomy, etc. The court went on observing that the principle reasons for death penalty include: (1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime, (2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community, (3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society, (4) the victims were defenceless, (5) the crime was either unprovoked or that it was premeditated, and in three cases the antecedents or the prior history of the convict was taken into consideration. 17. Keeping in view, the law explained by the Apex Court, we have carefully and meticulously considered the facts and circumstances brought on record. The aggravating circumstances are:-- (i) The accused is a young man of 42 years. His parents (father and mother) were aged 70 years and 60 years respectively and his wife was aged 25 years. (ii) He went to Haryana for his works keeping his wife and child with his parents. A few months before the date of occurrence he returned home and was living with his wife and child in a separate hut in the same house of his old parents. (iii) He used to treat his wife with extreme cruelty and used to assault her physically every now and then. Assaulting wife and beating her was almost a routine affair (iv) He was passing time idle after return from Haryana and was not engaged with any work. (v) He used to pick up quarrel with his parents on demand of money and share to the property often. (vi) He made the atmosphere of the house most odd and unhealthy and the neighbours used to avoid them. (vii) He was riotous in nature and used to take alcohol, cannabis, at random. (viii) He was involved in various mischief before leaving for Haryana (cross-examination of PW10). (ix) He committed murder of his wife with brutal assault before his infant child inflicting multiple injuries and even did not allow her to cry for help. (vii) He was riotous in nature and used to take alcohol, cannabis, at random. (viii) He was involved in various mischief before leaving for Haryana (cross-examination of PW10). (ix) He committed murder of his wife with brutal assault before his infant child inflicting multiple injuries and even did not allow her to cry for help. (x) He diabolically and most brutally killed his old parents and dragged his father's dead body to the pond and kept the dead body in the pond under a log with a view to screen the evidence of murder. (xi) He left the house silently and quietly and took shelter in the house of PWs 11 and 14 and took sleep there. (xii) He even did not care for his 4/5 years old child and left him alone in his house after the murder massacre. (xiii) His wife was groaning when he left the house. (xiv) He came out with no explanation as to under what circumstances he committed the murders. (xv) The facts and circumstances ruled out the possibility of any other person committing the crime except the accused. (xvi) He took deliberate false plea in his defence at the time of cross-examination of prosecution witnesses. (xvii) He has been enmeshed in an in-criminating network of facts but he failed to explain the circumstance which has yielded an adverse inference against him. (xviii) Proved facts and circumstances made it abundantly clear that he executed the murders in a planned manner. (xix) There is no possibility of reformation being the accused aged 42 years at the time of commission of crime. (xx) There is no scrap of evidence to show that the accused had any repentance after killing of his wife and parents. (xxi) No evidence to show that he had any affection for his minor child. 18. The mitigating circumstances found in the evidence on record are:-- (i) That the accused was jobless after coming back from Haryana and might be he was suffering from some mental distress. (ii) P.W.2, full blood sister of the accused stated that the accused most often would keep mum and for that their father consulted doctors which gives a presumption that the accused might be suffering from some emotional distress. (iii) After the occurrence the accused took shelter in the house of P.Ws. 11 and 14 and made confession before them and did not try to abscond. 19. (iii) After the occurrence the accused took shelter in the house of P.Ws. 11 and 14 and made confession before them and did not try to abscond. 19. The crime test as propounded by the Apex Court is fully satisfied but in view of the mitigating circumstances, noted above, the criminal test as propounded by the Apex Court cannot be said to have satisfied and so it is very difficult to arrive at a conclusion that the case is a rarest of rare case of murder. The accused most desperately executed the triple murder. Even his neighbours could not notice anything. None of the victims could raise alarm attracting the neighbours. This fact is suggestive of the commission of murders in a planned manner. After committing the offence the accused dragged his father's body to the pond and put it in the water under a log. Thereafter, he left for the house of P.Ws. 11 and 14. Dead body of his mother was lying in the courtyard and the body of his wife in a state of complete coma lying in the door of his hut. Only presumption may be drawn that the accused dragged the dead body of his father and put it under the water, with a view to divert the attention of the neighbours, relatives and police about the murders. He took the plea in his defence that he went to Srinagar market in the evening and from market on the invitation of "Malla Bari" he went to the house of PWs 11 and 14 and stayed there for the night. That plea of the accused has come out completely false. It is, therefore, clear that the accused deliberately acted with a clear motive and after the murders, left his house putting the dead body of his father in the pond and the bodies of his mother and wife in the house. 20. What is most shocking in the case at hand is the relationship between the murderer and the murdered. The murderer is the husband of a helpless young woman and is the son of the old aged parents. The murdered are two helpless women, one is the wife and the other is none but the mother of the murderer and the rest is the old aged father of the murderer. The murderer is the husband of a helpless young woman and is the son of the old aged parents. The murdered are two helpless women, one is the wife and the other is none but the mother of the murderer and the rest is the old aged father of the murderer. This relationship, definitely, shocked the mind of every sensible man that a young husband and/or a son on whom the parents or the wife were supposed to depend for their safety or security and their livelihood, has committed the murder. The society is extremely shocked in the gruesome and barbaric murder. The intention, preparation and execution of the murder seem to be most diabolic and brutal. The accused has shown extreme depraved mentality in committing murder of the helpless and defenseless victims. All the crime tests are satisfied. But in view of the mitigating circumstances, noted above, the criminal test cannot be said to have satisfied. Further, there is no definite evidence as to what had happened in the house of the accused for which he has murdered his wife and parents. Therefore, we are of considered opinion that the case cannot be termed as one of the rarest of rare and hence, death penalty of the accused does not justify. 21. Taking into consideration the facts and circumstances of the case, the aggravating circumstances and the mitigating circumstances, the crime test and the criminal test as propounded by the Apex Court, we are of considered opinion that the accused should be sentenced to imprisonment for life and he should not be given the benefit of parole or remission and that he shall remain behind the Bars throughout his life. 22. Accordingly, the death reference is not approved. 23. The convict Arjun Biswas is sentenced to imprisonment for life. He should not be given the benefit of parole or remission. He shall remain behind the Bars throughout his lire. 24. The Criminal appeal stands dismissed subject to the modification of sentence. Send back the L.C. record along with a copy of the judgment.