Per Virender Singh, J. 1. The case of the prosecution depicts a macabre event that occurred in village Walkul, Lolab falling in Police Station Lalpora (District Kupwara) Kashmir, on the night of 16.03.1997, which led to the death of five persons from two families namely Mohd. Yousuf Ganai S/o Gulzar Ganai, Mst. Guljani W/o Mohd. Yousuf Ganai, their two children namely Mohd. Hanief Ganai & Naseer Ahmad Ganai and one Mohd. Ishaq Bhat S/o Abdul Gani Bhat. In this regard, FIR No. 49/1997 under Sections 302, 449, 34 RPC came to be registered in Police Station Lalpora, in which, the appellant herein along with his four co-accused namely Majid Ganai S/o Lala Ganai R/o Walkul (died during investigation); Constable Gurmeet Singh BSF 118 Bn; Inspector-Gulzar Singh BSF 118 Bn; and Constable Raj Kumar BSF 118 Bn were booked. During investigation, Inspector-Gulzar Singh and Constable-Raj Kumar were discharged under Section 169 Cr.P.C., whereas case of Constable-Gurmeet Singh was sent to BSF Court C/o 56 APO, in which, he stood convicted and awarded sentence of 10 years' imprisonment. According to Mr. Qureshi, learned counsel for the appellant, the said sentence has been further reduced to 6 years, reference thereto is also made by the learned trial Court while hearing the appellant on quantum of sentence after holding him guilty. 2. Appellant was charged for the offence punishable under Section 302, 449 & 109 RPC. He, however stands convicted for the offence under Sections 302/34 RPC and Section 449 RPC and sentenced to death under Section 302/34 RPC and life imprisonment for the offence under Section 449 RPC vide impugned judgment/order dated 04.08.2009/02.09.2009 of learned Principal Sessions Judge, Kupwara, which is assailed by the appellant through Cr. Appeal No. 18/2009. Since sentence of death is kept subject to confirmation, in terms of Section 374 Cr.P.C. (Code of Criminal Procedure Svt., 1989) all the proceedings are submitted to this Court for consideration. Hence, Cr. Ref. No. 16/2009. 3. Another fact, which needs to be mentioned herein is that the appellant and aforesaid Majid Ganai (since dead), his co-accused, were surrendered militants and working for BSF 118 BN Camp Wanidurusa under Inspector Gulzar Singh-Unit Incharge and Constable-Gurmeet Singh at the time of alleged occurrence. They were also given arms and ammunition by BSF. Hence, Cr. Ref. No. 16/2009. 3. Another fact, which needs to be mentioned herein is that the appellant and aforesaid Majid Ganai (since dead), his co-accused, were surrendered militants and working for BSF 118 BN Camp Wanidurusa under Inspector Gulzar Singh-Unit Incharge and Constable-Gurmeet Singh at the time of alleged occurrence. They were also given arms and ammunition by BSF. The allegation is that aforesaid BSF personnel had also assisted the appellant and his co-accused in eliminating the aforesaid five persons of two families. 4. Filtering the unnecessary details, the necessitous facts of the prosecution case are as under: 5. An information was received from reliable source in Police Station Lalpora on 16.03.1997 at about 8 p.m. that the accused and his associate-Majid Ganai (dead), who were surrendered militants and working with BSF 118 Bn Camp Wanidurusa, entered the house of one Mohd. Yousuf Ganai S/o Gulzar Ganai R/o Walkul. Majid Ganai (dead) with AK 47 fired upon Mohd. Yousuf Ganai, who died on the spot. Information further revealed that Constable-Gurmeet Singh also showered bullets upon Mst. Guljani W/o Mohd. Yousuf Ganai and his two sons namely Mohd. Hanief Ganai and Naseer Ahmad Ganai. It is then alleged that thereafter the appellant entered the house of one Abdul Gani Bhat S/o Gh. Ahmad Bhat R/o Walkul armed with AK-47 and fired upon Mohd. Ishaq-Constable Armed Police and killed him on the spot. Upon this information, formal FIR No. 49/1997 came to be registered under Section 302, 449 & 109 RPC and the investigation ensued. The concerned police reached the spot, prepared the Site Plan, took all the five dead bodies in its custody for post mortem. Other investigational steps were also taken by the police including recording of the statements of the witnesses under Section 161 Cr.P.C. After the culmination of investigation, it is the appellant only who was put to trial, whereas Constable-Gurmeet Singh was tried separately by BSF Court. Appellant was initially charged for the commission of the offences under Sections 302, 449 and 109 RPC and subsequently for the offence punishable under Section 7/27 of Arms Act also, which charge is not proved by the prosecution as observed by the learned trial Court in the concluding para of the judgment. 6. The charge is in vernacular (Urdu), when translated into English, it reads:- `that you entered the house of Mohd. 6. The charge is in vernacular (Urdu), when translated into English, it reads:- `that you entered the house of Mohd. Ishaq-Constable Armed Police at 8 p.m. with intention to kill him. You fired with AK 47 and by showering of bullet, the aforesaid person died on the spot. Before this, with your assistance and with aid & assistance of your other accused- Majid Ganai (dead) and Gurmeet Singh, killed Mohd. Yousuf Ganai, Mst. Guljani, Mohd. Hanief Ganai and Naseer Ahmad Ganai.' 7. The prosecution, in order to substantiate the charge, has produced the following witnesses: - 1) Abdul Aziz Ganai S/o Qadir Ganai 2) Mohd. Younis S/o Abdul Gafar 3) Mst. Shameema W/o Abdul Aziz Ganai 4) Mst. Hajra W/o Hassan Sheikh 5) Mst. Fareeda W/o Abdul Rashid Sheikh 6) Mst. Gazala Tabasum D/o Mohd. Yousuf Ganai (deceased) aged 13 years 7) Mst. Saida W/o Abdul Gani Bhat 8) Mst. Ameena W/o Gh. Mohd. Mir 9) Mst. Shahmali @ Shaheen D/o Abdul Gani Bhat. 10) Mst. Rafiqa W/o Mohd. Ishaq 11) Haji Ghulam Ahmad Bhat S/o Abdul Samad Bhat 12) Abdul Gani Bhat S/o Haji Ghulam Ahmad Bhat 13) Mohd. Anwar Mir 14) Shaban Rather 15) Molvi Mohd. Yousuf 16) Head Constable-Abdul Gani 17) Constable-Bashir Ahmed 18) Dr. Mushtaq Ahmed Zargar-BMO 19) Ghulam Hassan-Head Constable 8. The prosecution case is based on twin motive viz: one in the bosom of Majid Ganai (dead) and other with the appellant. Majid Ganai used to visit the house of deceased-Mohd. Yousuf Ganai very frequently as he developed illicit relations with Mst. Guljani W/o Mohd. Yousuf Ganai, upon which, Mohd. Yousuf Ganai used to remain angry with her. Mst. Guljani used to meet Majid Ganai in BSF 118 Bn Camp Wanidurusa very frequently and because of the estranged relation with her husband, she, at one stage, left his company and went to her parents house for a month or so. Ultimately, Mohd. Yousuf Ganai divorced her. However, with the intervention of village fraternity, fresh marriage came into existence between both of them, which Majid Ganai did not like and on this count he started nursing grudge against them. 9. Ultimately, Mohd. Yousuf Ganai divorced her. However, with the intervention of village fraternity, fresh marriage came into existence between both of them, which Majid Ganai did not like and on this count he started nursing grudge against them. 9. The other motive projected qua the appellant is that he wanted to marry Shahmali D/o Abdul Gani Bhat S/o Ghulam Ahmad Bhat, to which, Ghulam Ahmad Bhat was not agreeing as no relation could be established between them as one and the same woman had suckled the appellant and the girl under reference (D/o Abdul Gani Bhat). The girl had taken breast feeding from her grand mother, who was grand mother of the appellant also. Bhat family had also approached PW-Mohd. Yousuf Khan to have Fatwa (Ruling) according to `Shariat' but he opined that he could not give any Fatwa with regard to the said marriage proposal as the issue was doubtful for the reason that the grand mother of the girl stated that she had not suckled the girl (daughter of Abdul Gani Bhat) whereas two persons Shaban Rather and Mohd. Anwar stated that the grand mother admitted in their presence that she had suckled the boy. In this regard, there is evidence of PW-Shaban Rather S/o Mohd. Siddiqui Rather, who stated that some questions of foster relation cropped up between the accused and Bhat family but when he was consulted about this foster sister relation of the appellant, he suggested that marriage should not be performed. This witness has further stated that at one stage when he was sitting at the Rice Husking Machine owned by deceased-Gani Bhat, accused Majid Ganai came to the site and asked him as to why he was challenging the relation, to which, he responded that the relation was beyond the limits of `Shariat' that is why he was opposing it. This witness further stated that even Qazi was also approached in this behalf and he was also of the view that because of the foster relation, marital relation between appellant and Shahmali would not take place. 10. Learned trial Court has accepted the prosecution version as put forth during trial by believing the eye version account and the motive, consequently convicted and sentenced the appellant vide impugned judgment. 11. Heard Mr. Qureshi, learned counsel appearing for the appellant and Mr. Lone, learned Dy.A.G. appearing for the State. 10. Learned trial Court has accepted the prosecution version as put forth during trial by believing the eye version account and the motive, consequently convicted and sentenced the appellant vide impugned judgment. 11. Heard Mr. Qureshi, learned counsel appearing for the appellant and Mr. Lone, learned Dy.A.G. appearing for the State. Trial Court record has also been perused by us. 12. The foremost argument put forth by Mr. Qureshi with regard to the first occurrence where four persons- Mohd. Yousuf Ganai, Mst. Guljani, Mohd. Hanief Ganai and Naseer Ahmad Ganai (members of one family) are killed is that the appellant has no direct involvement in it as he has been charged for conspiracy only, for which, there is absolutely no evidence on record and the learned trial Court has now convicted him with the aid of Section 34 RPC which was not the charge read over to him. 13. So far as the main charge of Section 302/34 RPC against the appellant is concerned, Mr. Qureshi submitted that the prosecution evidence is stumbling badly, inasmuch as, all the prosecution witnesses have contradicted each other vis-a-vis his participation. Learned counsel contended that with regard to first incident, no overt act has been attributed to the appellant except that he is allegedly seen in the company of his other co-accused, not only that even no motive can be attributed to him as it was Majid Ganai (dead), his co-accused, who was nursing grudge against Mohd. Yousuf Ganai and Mst. Guljani, who was earlier carrying illicit relation with him and got remarried to Mohd. Yousuf Ganai after obtaining divorce. Learned counsel submitted that participation of the appellant in the first occurrence turns out to be doubtful and at the most, he can be saddled for the second part of the occurrence wherein only Mohd. Ishaq was allegedly killed (although not admitted) as on that aspect also, the evidence put forth by the prosecution does not prove the complicity of the accused qua the charge to the hilt. This at the most turns out to be a case of single death. 14. Mr. Ishaq was allegedly killed (although not admitted) as on that aspect also, the evidence put forth by the prosecution does not prove the complicity of the accused qua the charge to the hilt. This at the most turns out to be a case of single death. 14. Mr. Qureshi then submitted that the Investigating Officer of the present case has not been examined by the prosecution and his non-examination is also fatal to the prosecution; not only that even the shells of the bullet allegedly recovered from the place of occurrence were also not sent to the Ballistic expert in order to confirm that the Fire Arm (AK-47) allegedly used in the commission of offence was the same from which the bullets were fired. Learned counsel contended that the Officers of the Border Security Forces were also not examined to confirm as to what kind of weapon(s) was given to two accused after they had joined BSF Camp on their surrendering. He submitted that the only evidence available with the prosecution is in the nature of eye version account, that too of a very weak character, which deserves to be rejected. 15. Learned counsel then submitted that the learned trial Court has relied upon the evidence of PW-8 (Mst. Ameena), who was not even cross-examined by the defence counsel, therefore, her statement cannot be read into evidence. 16. While making an attempt to dislodge the prosecution case in its entirety on the strength of the aforesaid submissions and seeking acquittal of the appellant, Mr. Qureshi, in the alternative, submitted that the death sentence awarded to the appellant by the learned Trial Court for the offence punishable under Section 302 read with 34 RPC is also not sustainable as the present case is not `a rarest of rare cases', in which, the death sentence could have been awarded in the facts of the present case, when one of the co-accused namely Gurmeet Singh, whose case has been tried by Border Security Force Court has been awarded imprisonment for 10 years, which has further been reduced to six years. According to the learned counsel, it is Constable-Gurmeet Singh, who has played the major role in killing the victims and the evidence available on record which directly connects the appellant with the commission of committing murder is with regard to the death of Mohd. According to the learned counsel, it is Constable-Gurmeet Singh, who has played the major role in killing the victims and the evidence available on record which directly connects the appellant with the commission of committing murder is with regard to the death of Mohd. Ishaq only whereas with regard to the other four deaths, his involvement is not directly projected or proved. These facts, according to Mr. Qureshi, are very relevant factors for diluting the sentence. 17. Mr. Qureshi then submitted that the appellant is not a menace to the society or incapable of rehabilitation or reformation as it is the case of the prosecution itself that he was a surrendered militant, who was accepted by Border Security Force and working for them in 118 Bn. Camp Wanidurusa. He submitted that the past track of the appellant indicates that he had thought of reforming himself by surrendering and realizing that the track of militancy adopted by him was not correct. Therefore, all these aspects coupled with the fact that the appellant is languishing in the jail for the last 16 years, according to the learned counsel, are the mitigating circumstances favouring the accused for awarding lesser punishment by commuting death penalty to imprisonment for life so that he is afforded yet another opportunity to reform himself. 18. On the other hand Mr. Lone, learned Deputy Advocate General, vehemently contended that the appellant was privy to a pre-planned attack upon two families, that too, on a very insignificant motive. According to learned State counsel, even if there is no direct evidence available on record with regard to overt act attributed to the appellant with regard to causing death of the family members of Mohd. Yousuf Ganai, yet sufficient evidence available on record is that he was seen along with his all other co-accused at the scene of crime and this fact would not absolve him of the basic charge of section 302 read with Section 34 RPC, for which, he now stands convicted. He then submitted that not using the firm arm in the first , occurrence by him would not be a ground to conclude that he had not shared common intention with rest of his group members, who were also duly armed with fire arms. He then submitted that not using the firm arm in the first , occurrence by him would not be a ground to conclude that he had not shared common intention with rest of his group members, who were also duly armed with fire arms. Learned State counsel would submit that it is the entire sequence in which two families were attacked by all these accused requires is to be appreciated on the basis of evidence available on record. Learned State counsel, thus, submitted that not only the conviction of the appellant as already recorded by the learned Trial Court, deserves to be upheld, the sentence of death penalty slapped upon him for the charge of Section 302 RPC also deserves to remain intact keeping in consideration the weapon used by him; the victims which include the persons with tender age and the woman caught in a helpless situation. He thus, prayed for dismissal of appeal on all the counts. 19. No doubt, in the case at hand, the investigation conducted appears to be somewhat slipshod on certain aspects coupled with the fact that the Investigating Officer has also not stepped into the witness box, upon which, Mr. Qureshi has tried to bank upon very heavily, but keeping in view the totality of facts and circumstances of the case appearing on record on the basis of the evidence adduced by the prosecution, that too, mostly in the shape of eye version account, we are of the considered view that the prosecution has been able to prove the charge against the appellant beyond any shadow of reasonable doubt. We shall now be entering into a detailed discussion with regard to all the material aspects of the prosecution case, of course, taking note of the arguments advanced by Mr. Qureshi, learned counsel for the appellant. 20. We do not feel the necessity of reproducing the entire evidence which is in vernacular (Urdu) by translating the same into English version so as to make our judgment weighty and sketchy unnecessarily but at the same time, we would not escape noticing the gist of eye version account as the case of the prosecution is primarily resting upon that only. 21. It is worth noticing that despite the family members, the neighbours of deceased Mohd. Yousuf Ganai have also stepped into the witness box. 21. It is worth noticing that despite the family members, the neighbours of deceased Mohd. Yousuf Ganai have also stepped into the witness box. No doubt that they are not the direct eye witnesses to the occurrence as the main incident had occurred in the house and the witnesses staying in neighbourhood reached the spot immediately after hearing sound of weeping or fire shots and saw accused-Majid Ganai (since dead), the appellant and one Sardar belonging to BSF (indication is towards Gurmeet Singh-accused) coming out from the house armed with guns. One of the PWs namely Abdul Aziz Gani stated on oath that when he and others picked up Guljani w/o Mohd. Yousuf Ganai from the `Verandha', she was alive and told us to make arrangement for a vehicle so that she could be taken to hospital and at that time he and others who had collected at the spot enquired from her as to what had happened, upon which, she disclosed to them that accused Majid Ganai, the appellant and one Sardar had knocked the door of their house, whereupon Mohd. Yousuf Ganai (since dead) had come to open the door and as soon as he opened the door, Majid Ganai fired shot upon him and he died on spot. Guljani also disclosed that Sardar, who was working in BSF, had showered bullets upon her and her two children. 22. Mohd. Younis Ganai is the real brother of deceased-Mohd. Yousuf Ganai. He is also not a direct eye witness to the occurrence as he was staying in a separate house near the house of his real brother and saw two BSF personnel, Majid Ganai and the appellant passing through the compound of the house of the deceased, armed with gun. He talks about the presence of his cousin PW-Abdul Rashid also. He subsequently entered the house and found Guljani lying in injured condition and other three persons dead. He then talks about as to what was disclosed to him by Guljani-injured wherein she depicted the main incident. 23. Mst. Shameema is daughter of deceased-Mohd. Yousuf Ganai. She is born from the first wife of Mohd. Yousuf Ganai and she happened to be in her in-laws house on the date of occurrence and narrates the same version as stated by PW-Mohd. Younis. With regard to the same set of evidence, prosecution has also produced Mst. Hajra and Mst. Fareeda. Mst. Shameema is daughter of deceased-Mohd. Yousuf Ganai. She is born from the first wife of Mohd. Yousuf Ganai and she happened to be in her in-laws house on the date of occurrence and narrates the same version as stated by PW-Mohd. Younis. With regard to the same set of evidence, prosecution has also produced Mst. Hajra and Mst. Fareeda. We do find certain contradictions in their statements when compared with the evidence of other witnesses, but these discrepancies would be of no relevance because these four witnesses, in fact, are not the eye witnesses to the occurrence and reached the spot after hearing the noise of shot and then they could see all the accused including the appellant coming out from the house of Mohd. Yousuf Ganai, armed with weapons. 24. Mst. Gajala Tabasum is daughter of the deceased-Mohd. Yousuf Ganai. She is aged 13 years and was present at the time of occurrence. Because of her tender age, before recording her statement, the learned Trial Judge felt it necessary to satisfy himself, whether she was possessed of reason and in a position to give the statement or not, therefore, certain questions were put to her and after having been fully satisfied that the witness is in a position to tender her statement, recorded her statement on oath in which she described the complete occurrence which she saw. She was in a position to even disclose to the Court about the relations her mother (Mst. Guljani) was carrying on with Majid Ganai (since dead), to which, her father was objecting. She also identified the present appellant stating that he too was present at the time of occurrence along with accused Majid Ganai and one Sardar as all three were present at the outer door of the house. She is categoric in saying that the appellant was armed with a gun. 25. The aforementioned evidence is very material piece of evidence with regard to the first occurrence where Mohd. Yousuf Ganai and his three family members have been done to death. She is categoric in saying that the appellant was armed with a gun. 25. The aforementioned evidence is very material piece of evidence with regard to the first occurrence where Mohd. Yousuf Ganai and his three family members have been done to death. Assuming for the sake of arguments, even if we ignore all the other piece of evidence although we find the same to be convincing and take into consideration the statement of PW-Gajala Tabasum (aged-13 years) only, whose presence cannot be doubted at all, her statement alone is sufficient to hold the appellant guilty with regard to his active involvement in the first occurrence. No doubt, he has not used his fire arm at this stage, nevertheless that by itself would not absolve him of his liability of sharing the common intention with his co-accused in his pre-planned attack. Therefore, his conviction with the aid of Section 34 RPC is well founded. Dropping of the charge of Section 109 RPC, instead convicting him under Section 34 RPC, in our view, would cause no prejudice to him in any manner. We are conscious of the fact that as far as the first occurrence is concerned, there was no motive in the bosom of appellant as it is Majid Ganai (dead), who wanted to settle the score with Mohd. Yousuf Ganai and Mst. Guljani but he, undoubtedly, joined hands with his co-accused to accomplish the object, in which, Gurmeet Singh, BSF personnel, also actively participated. Therefore, the appellant has no escape. 26. Let us now advert to as to what happened immediately after the first occurrence when all the accused entered the house of Mohd. Ishaq. One of the prosecution witnesses in this regard is Mst. Ameena, who is not cross-examined by the defence counsel. We, therefore, do not attach any importance to her evidence and switch over to the statement of Mst. Saida, who along with Mohd. Ishaq-deceased was having evening meals in their house and heard the firing from outside when Mohd. Ishaq told them to put out their lamp saying that army had come, when in the meantime the appellant and Majid Ganai entered the compound. This witness identified the appellant entering the house and other remained outside the house on one corner. She is categoric in saying that the appellant gave kicks to the door and as soon as door was opened by Mohd. This witness identified the appellant entering the house and other remained outside the house on one corner. She is categoric in saying that the appellant gave kicks to the door and as soon as door was opened by Mohd. Ishaq, he fired at him on his head, consequently he fell down there only. She even names the second accused also as Majid Ganai. She further states that after committing the murder of Mohd. Ishaq, the accused fired several bullets in the air and thereafter, Sardar (BSF personnel) also came and he too fired bullets on Mohd. Ishaq, hitting his head and other parts of the body. She also talks about the motive stating that the appellant wanted to marry Shahmali, which proposal was not agreeable and he had terrorized and warned their family through army. The witness was cross-examined by the defence at length but, in our considered view, no vital weakness could be pointed out which would dent the prosecution case so as to dub her as an unreliable witness. 27. The other witness to the second occurrence is Mst. Shahmali @ Shaheen, to whom, the appellant wanted to marry and the deceased being her real brother was not agreeing to it. She has toed the version of Mst. Saida. We do notice certain discrepancies in her statement but those are of no adverse impact upon the prosecution case. 28. Mst. Rafiqa is the wife of deceased Mohd. Ishaq and she also happened to be the eye witness to the occurrence. She has given the complete version as to how her husband opened the door and then was knocked down by the appellant hitting his head with bullet. 29. In order to corroborate the eye version account, we have the evidence of PW-Haji Ghulam Ahmad on record. He after hearing the noise, came out and saw that the appellant with his companion-Abdul Majid Ganai and with other BSF forces were present. He states that the appellant asked Mohd. Ishaq to open the door and thereafter, he depicts the entire prosecution story. We do notice in his examination-in-chief that the story put forth by him is somewhat different from the statement of other witnesses so far as firing shot at the hands of the appellant is concerned, but it does not shatter the basic substratum of the prosecution case. We, therefore, do not attach any importance to that aspect. 30. We do notice in his examination-in-chief that the story put forth by him is somewhat different from the statement of other witnesses so far as firing shot at the hands of the appellant is concerned, but it does not shatter the basic substratum of the prosecution case. We, therefore, do not attach any importance to that aspect. 30. PW-Abdul Gani Bhat is the father of the deceased-Mohd. Ishaq Bhat and he was also present when the incident took place. He also gives the complete eye version account when stepped into the witness box. 31. We have another set of evidence available on record with regard to the seizure memas or even medical evidence but entering into minute discussion with that piece of evidence would serve no useful purpose. However, PW-Dr. Mushtaq Zargar (Block Medical Officer) has stated that the death of Mohd. Ishaq had occurred because of the bullet which had caused excessive blood loss and injury of organs and vessels. In his opinion, the injuries were sufficient to cause death in the ordinary course of nature. 32. The motive in this case is also proved to the hilt by cogent evidence. It is otherwise, well settled that even if the motive is weak, it looses its effect in the face of eye version account to the occurrence whereas in the present case, the appellant and his co-accused had motive in their bosom, for which, they even instigated BSF personnel to accomplish their task in the manner they wanted. 33. After rescanning the prosecution evidence in its entirety, we are of the considered view that the prosecution has been able to prove the charge of Sections 302 read with section 34 RPC and Section 449 RPC against the appellant beyond any shadow of reasonable doubt. His conviction, as such, deserves to be upheld. We order accordingly. 34. The next question that emerges for our consideration is, whether the present case calls for commuting the death sentence to that of life imprisonment keeping in view the totality of facts and circumstances of the present case. 35. Constitutional validity of `death penalty' was tested in `Bachan Singh v. State of Punjab' (1980) 2 SCC 684 and in that case, the Constitution Bench of Hon'ble Supreme Court, while upholding the Constitutional validity of death sentence, observed that the death penalty may be invoked in the `rarest of rare cases'. 35. Constitutional validity of `death penalty' was tested in `Bachan Singh v. State of Punjab' (1980) 2 SCC 684 and in that case, the Constitution Bench of Hon'ble Supreme Court, while upholding the Constitutional validity of death sentence, observed that the death penalty may be invoked in the `rarest of rare cases'. The Constitution Bench held as follows:- A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of the rare cases when the alternative option is unquestionably foreclosed." 36. Bachan Singh's principle of `rarest of rare cases' came up for consideration in elaboration in `Machhi Singh and others v. State of Punjab' (1983) 3 SCC 470 , in which, the Hon'ble Supreme Court, after stating the feeling of the community and its desire for self preservation, expressed that in every case, the community does not desire to withdraw the protection of self preservation by sanctioning the death penalty. It may do so in "rarest of rare cases" when its collective conscience is so shocked that it would expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty. After so stating, the three Judge Bench of Supreme Court culled out the propositions envisaged from Bachan Singh's case which are as follows:- "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 37. In `Ram Pal v. State of U.P.' (2003) 7 SCC 141 , Hon'ble Supreme Court took note of the fact that there has been termination of life of number of people and opined that the number of deaths cannot be the sole criterion for awarding the maximum punishment of death. It further ruled that while in a given case, death penalty may be the appropriate sentence even for a single murder, but it would not necessarily mean that in every case of multiple murders, death penalty has to be the normal rule. Hon'ble Supreme Court took note of the guidelines stated by the Constitution Bench in case of Bachin Singh (supra), the aggravating circumstances and the mitigating circumstances postulated therein. 38. In `Haresh Mohandas Rajput v. State of Maharashtra' (2011) 12 SCC 56 , the Hon'ble Supreme Court referred to principles in Bachan Singh's case (supra) & Machhi Singh's case (supra) and proceeded to state as follows:- The rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of "the rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the- moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Where an accused does not act on any spur-of-the- moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded." 39. We have examined the present case following the ratio of the aforesaid judgments and have prepared the balance-sheet of `aggravating' and `mitigating circumstances' so as to strike just balance to conclude, whether this case falls in the category of `rarest of rare cases' or not. Certain facts need to be borne in mind in this regard. I. It has come in evidence that deceased- Mst. Guljani had illicit relation with accused- Majid Ganai (since dead) and the marriage of Mst. Guljani had come to an end because of this illicit relation only and it is their reconciliation, which became the cause of killing the couple in the presence of their three children present at the spot, out of whom, the only one had a providential escape and turned out to be an eye witness in this case. Inhumane role of the accused has engraved the humanity as is evident from the fact that they did not even spare the innocent children whose fault was nothing except having taken birth. II. Common intention of the accused having been well founded on the evidence available on record, the present appellant cannot claim to be treated differently because he did not shot at four persons of Mohd. Yousuf Ganai's family. It needs to be noticed here that there is well corroborated evidence which reveals that he too was armed with lethal weapon and the purpose as per evidence was nothing more nothing less but it was to do away with the lives of the defenceless human beings. III. Yousuf Ganai's family. It needs to be noticed here that there is well corroborated evidence which reveals that he too was armed with lethal weapon and the purpose as per evidence was nothing more nothing less but it was to do away with the lives of the defenceless human beings. III. Not only that, there is something more on the record that unveils brutality of the present appellant and that is his violence/force on Shahmali's family because they had refused to succumb to his pressure to concede to the marriage of their daughter to him, for which, they had to pay a very heavy price of loosing Mohd. Ishaq, the real brother of PW Shahmali, on the gun shot of the accused. The acts of commission attributed to the appellant depict that he has turned an authoritarian over the years and is no more accustomed to hearing `No'. Anybody spurning his proposal or rejecting his overture invites his wrath, which he never abandoned. He could not adapt to societal norms of behaviour. The sick mentality of torturing, bruising, battering and subduing in the past impels him to say good bye to reason. IV. One more fact, which calls for a mention is that the appellant and his co-accused/Majid Ganai had participated in terrorist activities to disturb the peace and tranquility in the State of J&K and then enjoyed the shelter and courtesy of BSF on the ground of their desire to live and let other live peacefully, but their participation and involvement in this heinous crime makes it clear that their surrender was not because of their change of mind set. In fact, there is nothing to show their amenability to reformation as is evidenced by the fact that they had instigated BSF jawans also to wreck their vengeance. Therefore, we are of the considered opinion that they were obsessed with criminal tendency all through. They surrendered their guns, but not their ideology as their mind set was conditioned in that manner only. V. No doubt, Gurmeet Singh- BSF personnel has suffered very less sentence by BSF Court (56 APO), but it cannot have any impact on us in view of the facts and circumstances of the case. VI. They surrendered their guns, but not their ideology as their mind set was conditioned in that manner only. V. No doubt, Gurmeet Singh- BSF personnel has suffered very less sentence by BSF Court (56 APO), but it cannot have any impact on us in view of the facts and circumstances of the case. VI. We are also conscious of the fact that the appellant is languishing in jail for the last more than 16 years and this aspect, no doubt, can be considered as one of grounds favouring the appellant, but the `aggravating circumstances' discussed hereinabove outweigh the `mitigating circumstances' tilting towards him. It would be too much to expect any amount of reformation on the part of the appellant. 40. We, thus, are of the considered view that the present case falls within the category of `rarest of rare cases'. In short, the act of the appellant warrants nothing short of death sentence. We, thus, uphold the `death sentence' as already awarded by the learned trial Court. 41. Resultantly, the appeal at hand stands dismissed on all the counts. 42. Cr. Ref. No. 16/2009 sent to this Court in terms of Section 374 Cr.P.C. is confirmed and answered accordingly. Let the learned trial Court, which has recorded the conviction/sentence, be informed of the outcome of the present appeal/reference by Registrar Judicial of this Wing in terms of Section 425 Code of Criminal Procedure Svt. 1989 (State Code) for compliance. 43. The appellant be also informed of the outcome of the instant Criminal Appeal/Cr. Reference through Jail Superintendent by providing him the copy of the judgment without any delay. Registrar Judicial of this Wing to take note of it.