Iqbal Ahmed Ansari, J. 1. The appellant herein is alleged to have assaulted his wife and his three children including two sons by means of dao, while they were innocently sleeping, and, then, caused self-inflicted injuries on his own person. Of the five persons so allegedly assaulted by the appellant, two of his children, a son and only daughter, died and though his wife and one of the two sons survived, both of them had sustained grievous hurt. Can the case at hand be regarded as one of the rarest of rare cases and whether the sentence of death, passed against the appellant, by the learned trial Court, deserve to be confirmed? These are, in substance, the two vital questions, which we are required to answer. 2. By judgment and order, dated 23.04.2013, passed, in Sessions Case No. 124(DH)/2011, by the learned Sessions Judge, Dhemaji, the accused-appellant stands convicted under Sections 302 and 326 IPC and sentenced, for commission of the offence of murder, to death and to undergo, for his conviction under Section 326 IPC, rigorous imprisonment for seven years and pay fine of Rs. 10,000/-, and, in default of payment of fine, suffer rigorous imprisonment for a further period of six months. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused Prabhat Gogoi, a cultivator, used to live with his wife, Pratima Gogoi, two sons, Pawan Gogoi and Nita Gogoi, and one daughter, Bandana Gogoi. Accused Prabhat Gogoi's wife, Pratima, suddenly, woke up, at about 4 am, 14.07.2009, on hearing her elder son, Pawan, crying out saying, "Father, do not kill me; father, do not kill me. I am dying" and noticed that her husband, accused Prabhat Gogoi, who had slept near her (Pratima), was no longer there, whereupon Pratima (PW 2) went running to the place, where her two sons, Pawan and Nila @ Bhaskar, were sleeping together on the same bed. As Pratima reached near the bed, where her sons used to sleep, accused assaulted her (PW 2) by means of a dao on her right ear and also on her back making her loose her senses. As Pratima reached near the bed, where her sons used to sleep, accused assaulted her (PW 2) by means of a dao on her right ear and also on her back making her loose her senses. When Pratima regained her senses in the hospital, she came to know that their daughter, Bandana, and her elder son, Pawan, had succumbed to their injuries, but their younger son, Bhaskar (PW 6), had survived with injuries in various parts of his body. (ii) On hulla being raised, neighbours of the accused, including Amal Gogoi, President, Village Defence Party (PW 1), came rushing to the house of the accused, saw the ghastly scene of Bandana lying dead on the floor with cut injuries on her body. Inside the room, the neighbours of the accused also found Pawan, Pratima and Nila lying on the floor with injuries on their persons and Pawan, too, succumbed to his injuries, almost instantaneously, at the very place of the occurrence. (iii) PW 1, then, lodged a written Ejahar (Ext. 1), at Silapathar Police Station. Before, however, the Ejahar was lodged, the accused had been found lying on the bank of river Simen in naked condition with injuries on his neck and other parts of his body. Based on the Ejahar, so lodged, and treating the same as First Information Report, Silapathar Police Station Case No. 187/2010, under Sections 302/326 IPC, was registered against the accused. (iv) During investigation, police held inquest over the said two dead bodies and also sent all the three injured, including the accused, to hospital, where they were treated. The dead bodies were also subjected to post mortem examinations. The investigation, which was carried out by the police, also revealed that about a year prior to the incident, the accused, unable to maintain his family, had threatened to kill his children by administering poison to them. However, on completion of investigation, a charge-sheet was laid, under Sections 302/326 IPC, against the accused. 4. At the trial, charges, under Sections 302/326 IPC, were framed against the accused. To the charges, so framed, the accused pleaded not guilty. 5. In support of their case, prosecution examined altogether 14 witnesses. However, on completion of investigation, a charge-sheet was laid, under Sections 302/326 IPC, against the accused. 4. At the trial, charges, under Sections 302/326 IPC, were framed against the accused. To the charges, so framed, the accused pleaded not guilty. 5. In support of their case, prosecution examined altogether 14 witnesses. The accused was, then, examined under Section 313(1)(b)Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, his case being that while he was asleep after dinner, along with the other members of his family, a person entered into their house, caught hold of him and assaulted him and having been injured, he (accused) ran, but fell down by the side of the river and he had no knowledge as to how the remaining members of his family were injured and two of them, in course of time, died. The defence also adduced evidence by examining one witness. 6. Having, however, found the accused guilty of the offences, which he stood charged with, learned trial Court convicted him accordingly and passed sentences against him as mentioned above. 7. Aggrieved by his conviction and the sentences passed against him, the accused has preferred an appeal. At the same time, as the accused has been sentenced to death, the learned trial Court, too, has submitted, in terms of the provisions of Section 366 Cr.P.C., the proceedings of the trial to this Court for confirmation of death sentence. 8. By this common judgment and order, we propose to dispose of the death reference as well as the appeal inasmuch as the appeal as well as the death reference are inextricably linked with each other and have arisen out of the one and the same judgment and have, therefore, been heard together. 9. We have heard Mr. Z. Kamar, learned Public Prosecutor, Assam, and Mr. A.M. Bora, learned counsel, who has appeared as amicus curiae in the appeal, we have also heard Mr. T.J. Mahanta, learned counsel, who has appeared as amicus curiae, in the death reference. 10. Considering the fact that prosecution has examined PW 2 (Pratima Gogoi), wife of the accused, and PW 6 (Nila Gogoi), son of the accused, as eye witnesses to the occurrence, we deem it apposite to, first, examine the evidence of these two witnesses. 11. T.J. Mahanta, learned counsel, who has appeared as amicus curiae, in the death reference. 10. Considering the fact that prosecution has examined PW 2 (Pratima Gogoi), wife of the accused, and PW 6 (Nila Gogoi), son of the accused, as eye witnesses to the occurrence, we deem it apposite to, first, examine the evidence of these two witnesses. 11. So far as PW 2, wife of the accused, is concerned, her evidence is that on the day of the occurrence, at about 4 am, she woke up on hearing her son, Pawan (since deceased), crying out, "Father, do not kill me; father, do not kill me. I am dying" and noticed that her husband, i.e., the accused-appellant, who had been sleeping near her, was no longer present there. It is in the evidence of PW 2 that she rushed to the place, where her sons, Pawan (since deceased), and Nila @ Bhaskar, used to sleep on the same bed. It is also in the evidence of PW 2 that no sooner she reached the bed, where her sons used to sleep, her husband, i.e., the accused-appellant, inflicted cut injuries on her right ear and also on her back by means of a dao and she became senseless. PW 2 has also deposed that she regained her senses at the hospital and came to learn that her daughter, Bandana, and her elder son, Pawan, had already succumbed to their respective injuries and that, Bhaskar had sustained injuries on various parts of his body. PW 2 has further deposed that she had been under treatment for about 20 days. 12. Close on the heels of the evidence of his mother, Bhaskar (PW 6) has deposed that on the day of the occurrence, he was sleeping, along with his brother, Pawan (since deceased), and his sister, Bandana (since deceased), and while they were so asleep, accused came and assaulted all of them including their mother and, on being so assaulted, Bandana and Pawan died at the very place of the occurrence and, he and his mother were carried to, and admitted at, Civil Hospital, Dhemaji, for treatment, where he remained, under treatment, for about 20 days. 13. Though PW 2 and PW 6 have been cross-examined by the defence, nothing at all could be elicited from their cross-examination to show that their evidence is untrue, unsafe or unreliable. 13. Though PW 2 and PW 6 have been cross-examined by the defence, nothing at all could be elicited from their cross-examination to show that their evidence is untrue, unsafe or unreliable. In fact, PW 6 had been left almost untouched on the material aspects of his evidence, while he was being cross-examined by the defence, and, as far as PW 2 is concerned, she has made it clear that though there was darkness, she had recognized her husband. Her evidence, too, despite cross-examination by defence, remained wholly unshaken on every material aspect. 14. Situated thus, we see no reason to disbelieve PW 2 and/or PW 6; more so, when no sustainable allegation has been made against PW 2 and PW 6 that they have falsely implicated the accused. This apart, PW 2 and PW 6, being the wife and son respectively of the accused-appellant, have no reason to falsely implicate the accused-appellant. 15. In fact, the evidence of PW 1, who is President of the local VDP, lends great credence to the evidence of PW 2 and PW 6 inasmuch as PW 1 has deposed that on 14.07.2009, at about 4.30 am, while he was present at his house, he heard hulla being raised from the house of the accused and when he went there, he found, inside the house of the accused, Bandana lying dead on the floor with cut injuries on her body and, inside the room, Pawan, Pratima and Nila were lying injured on the floor and Pawan died instantaneously. 16. It is in the evidence of PW 1 that he lodged the Ejahar (Ext. 1) with the police, police came and shifted the two injured and also took away the dead bodies of Pawan and Bandana after having held inquest over their dead bodies, Ext. 2 being the inquest report of the inquest conducted on the dead body of Bandana and Ext. 3 being inquest report of the inquest conducted on the dead body of Pawan. 17. It is also in the evidence of PW 1 that the accused was not found and when a search was conducted for him, they found him near the river Simen. 18. Even from the cross-examination of PW 1, defence could elicit nothing to show that any part or portion of his evidence is false, untrue or unbelievable. 17. It is also in the evidence of PW 1 that the accused was not found and when a search was conducted for him, they found him near the river Simen. 18. Even from the cross-examination of PW 1, defence could elicit nothing to show that any part or portion of his evidence is false, untrue or unbelievable. No enmity is also alleged to have ever existed between the accused-appellant, on the one hand, and PW 1, on the other. There is, therefore, no reason for PW 1 to falsely implicate the accused-appellant 19. In the light of the evidence of PW 2 and PW 6, when read, in the light of evidence of PW 1, there can be no escape from the conclusion that it was the accused-appellant, who had put to death his son, Pawan, and his daughter, Bandana, and also seriously injured his wife, Pratima (PW 2), and his son, Bhaskar (PW 6). 20. Broadly in tune with the evidence of PW 1, PW 3 has deposed that on the day of the occurrence, at about 4.30 am, he, on hearing hue and cry, went to the house of the accused and found Pratima, Nila @ Bhaskar, Pawan and Bandana lying smeared in blood inside their house and Nila had told that their father had hacked them, whereupon police was informed, police came and, after having conducted inquest over the said two dead bodies, police took away the two injured and also the two dead bodies. 21. It is in the evidence of PW 3 that as they did not find the accused in the house, they searched for him and found him lying, in a naked state, on the sands of river Simen, with injuries on his person. Police apprehended the accused and took him away too. In his cross-examination, PW 3 has clarified that he had seen cut injuries on the neck and abdomen of the accused and that the accused was unable to speak. Even the evidence of PW 3 could not be shaken by the defence in any manner whatsoever. 22. Police apprehended the accused and took him away too. In his cross-examination, PW 3 has clarified that he had seen cut injuries on the neck and abdomen of the accused and that the accused was unable to speak. Even the evidence of PW 3 could not be shaken by the defence in any manner whatsoever. 22. Corroborating the evidence of PW 1 and PW 3, PW 4, a co-villager of the accused-appellant, has deposed that on hearing hulla raised from the house of the accused, he went there and found wife of the accused, his two sons and daughter lying injured and that the daughter and one of the sons of the accused died. 23. From the cross-examination of PW 2, too, nothing has been elicited, which can make this Court reject or not to give credence to his evidence, which his evidence, having remained unshaken, on every material aspect, deserves. 24. The evidence of PW 5 is not very different from the evidence of PW 1, PW 3 and PW 4 inasmuch as this witness (PW 5) has deposed that the accused is his co-villager and, on the day of the occurrence, when he saw people running towards the house of the accused, he also went there and saw the wife of the accused, his two sons and one daughter lying injured inside the house of the accused and the daughter and one of the sons of the accused died. It is in the evidence of PW 5 that police came and took away the injured persons and also the two dead bodies. It is also in the evidence of PW 5 that accused was, later on, found lying on the sands of river Simen with injury on his neck. 25. Turning to the evidence of PW 11 (Dr. Tikendrajit Taid), we notice that according to his evidence, he conducted, on 14.07.2009, post mortem examination on the dead body of Bandana Gogoi and found as follows: "1. External appearance dead body of a female child of average built without emaciation and decomposition. Injuries: 2. One incised wound seen over the neck in the right side placed horizontally measuring 6 c.m. x 2 c.m. in size resecting the sternoclaido mastoid muscle and external jugular vain. 3. Another wound (incised) resecting the thumb index finger and middle finger over the right hand. Other organ are found healthy." 26. Injuries: 2. One incised wound seen over the neck in the right side placed horizontally measuring 6 c.m. x 2 c.m. in size resecting the sternoclaido mastoid muscle and external jugular vain. 3. Another wound (incised) resecting the thumb index finger and middle finger over the right hand. Other organ are found healthy." 26. In the opinion of the doctor, death was caused due to shock and hemorrhage from the injuries sustained on the neck. 27. PW 11 has also, admittedly, conducted post mortem examination on the dead body of Pawan Gogoi and his findings are as follows: "A dead body of a young healthy male without emaciation and decomposition. Injuries: 1. Two incised wound over scalp in tempore parietal region measuring 5 c.m. in length. 2. One horizontal incised wound over the neck in anterior aspect resecting the trachea and esophagus up to vertebra. 3. Two incised wound over the shoulders about 6 c.m. length. 4. Two incised wound over both the wrist joints measuring 4 c.m. long horizontally placed in anterior aspect. 5.Two incised wound over both the calves placed vertically about 7 c.m. long. 6. One incised wound over left leg dorsum about 5 c.m. placed transversely." 28. PW 11 has opined that the cause of death of Pawan Gogoi was shock and hemorrhage as well as neurogenic failure from the injuries sustained on his spinal cord and great vessels at the level of the neck. 29. Apart from the fact that defence declined to cross-examine the doctor (PW 11), we do not notice anything inherently incorrect or improbable in the evidence of PW 11. 30. Thus, the medical evidence on record clearly reveals that both Bandana and Pawan sustained more than one incised wounds on their persons and that the shock and hemorrhage, which resulted from the said injuries, became the causes of their death. The nature of injuries also gives a clear indication that these injuries were intended to cause death of the person concerned and that these injuries could have been caused by sharp cutting weapon. 31. Coming to the evidence of PW 12, who is a doctor and who examined and treated Nila @ Bhaskar, we find that he has deposed that on 14.07.2009, he examined Bhaskar and found as follows: "1. Sharp cut injury over right parieto occipital region with outer table cut (size 10 x 1 x 1 c.m.). 2. 31. Coming to the evidence of PW 12, who is a doctor and who examined and treated Nila @ Bhaskar, we find that he has deposed that on 14.07.2009, he examined Bhaskar and found as follows: "1. Sharp cut injury over right parieto occipital region with outer table cut (size 10 x 1 x 1 c.m.). 2. Sharp cut injury over right at the level of neck posteriorly size 5 c.m. x 1 x 2 c.m. 3. Sharp cut injury over forehead size 3 x 1 x lcm. 4. Sharp cut injury over right arm and forearm in number sizes 2 x 1 x 1 c.m., 5 x 1 x 1 c.m., 2 x 1 x 1 c.m., 3 x 1 x 1 c.m. and left arm and forearm found sharp cut injuries 3 in numbers sizes 4 x 1 x 1 c.m., 2 x 1 x 1 c.m., 1 x 1 x 1 c.m. 5. Sharp cut injury over left side of upper lip. All the injuries were recent 1 to 12 hours." 32. All the injuries, according to PW 12, were grievous in nature. 33. Similarly, PW 13, yet another doctor, has deposed that on 14.07.2009, on examining Pratima Gogoi, he found as follows: "1. Clean cut injury mark over occipital region of the head, size 6 x 3 c.m. 2. Clean cut injury mark over right ear size 1 x 1 c.m." 34. On the same day, i.e., on 14.07.2009, PW 13 also examined the accused and found the following injuries on his person: "(1) Deep clean cut injury over left side of his neck size 10 c.m. x 3 c.m. (2) Clean cut injury mark over right ear size 3 x 2 c.m." 35. It is in the evidence of PW 13 that in-jury Nos. 1 and 2, which were found on the person of the accused, were grievous in nature and that these injuries could have been self-inflicted. 36. Notwithstanding the cross-examination, which PW 12 and PW 13 were put to, their evidence have remained wholly unshaken. It is in the evidence of PW 13 that in-jury Nos. 1 and 2, which were found on the person of the accused, were grievous in nature and that these injuries could have been self-inflicted. 36. Notwithstanding the cross-examination, which PW 12 and PW 13 were put to, their evidence have remained wholly unshaken. We, therefore, see no reason to disbelieve the evidence of PW 12 and PW 13 and the evidence of these two witnesses clearly show that both, Pratima (PW 2) and Bhaskar (PW 6), sustained grievous hurt inasmuch as they not only sustained injuries, which had disfigured them, but they had also remained, under treatment, in the hospital, for a period of 20 days each. 37. What emerges from the unshaken evidence of the two eye witnesses, namely, PW 2 and PW 6 is that it was the accused-appellant, who had injured these two witnesses and had also put to death his elder son, Pawan Gogoi, and his only daughter, Bandana. PW 2 and PW 6 being injured and there being no reason for them to falsely implicate the accused-appellant, their evidence has been rightly relied upon by the learned trial Court; more particularly, when their evidence has been substantially corroborated by the remaining evidence. 38. Situated thus, there can be no escape from the conclusion that it was the accused-appellant, who had intentionally caused the deaths of his said son and said daughter and had also caused grievous hurt to his wife, Pratima Gogoi (PW 2), we well as his younger son, Nila Gogoi @ Bhaskar (PW 6). 39. For what have been pointed out above, we find no error or infirmity, factual or legal, in the conclusion of guilt, which the learned trial Court has reached against the accused-appellant. 40. We, therefore, hold that the accused-appellant has been correctly and legally convicted under Sections 302 and 326 IPC. 41. The question, now, is: Whether the offences of murder, which the accused-appellant has committed, warranted, as opined by the learned trial Court, sentence of death? 42. 40. We, therefore, hold that the accused-appellant has been correctly and legally convicted under Sections 302 and 326 IPC. 41. The question, now, is: Whether the offences of murder, which the accused-appellant has committed, warranted, as opined by the learned trial Court, sentence of death? 42. With regard to the above, it is of utmost importance to note that it is in the evidence of Pratima (PW 2), wife of the accused, that about a year before the incident had taken place, her husband (i.e., the accused-appellant) had said that he would kill all of them by feeding them poison as he could not sustain them any more. This shows an element of helplessness, on the part of the accused-appellant, for his inability to maintain his family consisting of his wife, two sons and one daughter. The fact that the accused-appellant had made such a statement to his family coupled with the fact that he inflicted, according to the evidence on record, injuries to his own person, too, leave us with no doubt that the accused-appellant had been struggling to sustain his family and, having come to the conclusion that he would not be able to sustain them any longer, assaulted all the members of his family with intent to kill them and also, thereafter, punished himself by inflicting injuries on his neck and abdomen. Of the persons, who were assaulted by the accused, his elder son, Pawan, and his only daughter, Bandana, died; but very fortunately, his wife, Pratima (PW 2), and his younger son, Bhaskar (PW 6), survived, though with grievous hurt having been caused to them. 43. In the backdrop of facts, which we have indicated above, we are to take note of the aggravating circumstances appearing against the accused-appellant vis-a-vis the mitigating circumstances, which appear from the evidence on record. We, therefore, enlist hereinbelow the aggravating and mitigating circumstances: Aggravating circumstances (Crime Test): 1) The act of killing was premeditated. 2) The accused assaulted with a dao on his wife and 3 children, and out of which two children died on the spot. 3) The deceased were innocent and they were in helpless condition as they were fast asleep at the time of assault. 4) The crime is enormous in proportion as he attempted to kill the entire family. 5) The accused killed them with the intention of killing. 3) The deceased were innocent and they were in helpless condition as they were fast asleep at the time of assault. 4) The crime is enormous in proportion as he attempted to kill the entire family. 5) The accused killed them with the intention of killing. 6) The act was gruesome as he hacked to death his own two children and injured his wife and another son. 7) The act of the accused was unprovoked. Mitigating Circumstances (Criminal Test) i) The mental condition of the accused shows that he was mentally disturbed because of the poor economic condition of the family. ii) The financial constraints did have a lasting impact on his mind for a considerable length of time as he alleged to have threatened to kill his children by poisoning one year prior to the occurrence because of poverty. iii) The accused tried to kill himself after the alleged incident, which shows his feeling of repentance and helplessness. iv) There is no antecedent against the accused. v) There is no likelihood of the accused repeating such acts in future and there is hope of his rehabilitation. 44. Having considered the aggravating circumstances vis-a-vis the mitigating circumstances appearing from the evidence on record, we are of the view that the case, at hand, does not fall into the category of those cases, which can be regarded as the rarest of rare cases for the following reasons: (1) Prosecution could not find out the motive behind the act of killing of his two children by the accused-appellant. The evidence on record, "rather, reveals that the accused-appellant was unable to sustain his family and, therefore, wanted to finish his family including, perhaps, himself, which, reflect helplessness of the accused and this circumstance needs to be considered in favour of the accused-appellant. (2) The state of mind of the accused-appellant is of paramount consideration, while awarding death penalty. In the present case, from the evidence on record, it is crystal clear that the accused-appellant was unable to maintain his family, because of his poor economic condition. It was painful for him to see his family die in starvation and that was why, he wanted to, perhaps, kill them and also tried to punish himself. For him, probably, to die in starvation was more painful than to die on being killed. It was painful for him to see his family die in starvation and that was why, he wanted to, perhaps, kill them and also tried to punish himself. For him, probably, to die in starvation was more painful than to die on being killed. The accused-appellant had no other reason for doing what he had done and, hence, considering the mental state of the accused-appellant, the death penalty is not the answer and is warranted by the facts of the present case; (3) From the evidence on record, it can be safely discerned that the accused-appellant tried to kill his entire family in order to overcome the pain of dying out of starvation. 45. In the case at hand, the accused-appellant is the worst sufferer. The accused-appellant is the greatest loser inasmuch as he killed his 2 (two) children and it was a crime, which was committed out of frustration and pain of being unable to bear the burden of livelihood of his family. 46. Because of what have been discussed and pointed out above, while we maintain the conviction of the accused-appellant under Section 302 IPC as well as Section 326 IPC, we are clearly of the view that the present one is not a case, which warranted death sentence. 47. We, therefore, alter the sentence of death into life imprisonment with fine of Rs. 5,000/- and, in default of payment of fine, to undergo rigorous imprisonment for one year. We further find that so far as the sentence, which has been passed against the accused-appellant, for commission of offence under Section 326 IPC, is concerned, the same does not call for any interference in appeal. 48. In the result and for the reasons discussed above, this appeal partly succeeds. While we decline to confirm the sentence of death, we hereby alter the sentence of death to life imprisonment with fine of Rs. 5,000/- and, in default of payment of fine, to suffer rigorous imprisonment for one year. We also sustain, as already indicated above, the sentence, which has been passed against the accused-appellant by the learned trial Court for commission of offence under Section 326 IPC. 49. With the above observations and directions, this appeal shall stand disposed of. 50. Let the Amicus Curiae be paid a sum of Rs. 5,000/- each for their valuable assistance rendered to this Court. Send back the LCR