Per Virender Singh, J. 1. Appellant- Vijay Kumar S/o Sh. Prithi Ram R/o Village Doiyan at present Prangla, Tehsil Akhnoor, (hereinafter to be referred to as `accused') has been sentenced to death after being convicted under Section 302 RPC vide impugned judgment dated 14/16.11.2009 of 2nd Additional Sessions Judge, Jammu. He is also sentenced to undergo rigorous imprisonment for ten years and fine of Rs.10,000/- for the offence punishable under Section 307 RPC, in default of payment of fine, to further undergo six months' simple imprisonment; rigorous imprisonment for five years and fine of Rs.500/- under Section 326 RPC, in default of payment of fine, to undergo simple imprisonment for three months; rigorous imprisonment for one year for the offence punishable under Section 324 RPC and simple imprisonment of one year for the offence punishable under Section 448 RPC. However, all the sentences have been ordered to run concurrently. 2. Aggrieved of the impugned judgment of conviction and sentence, accused has filed Criminal Appeal No.05/2010. The sentence imposed by the trial Court is subject to the confirmation of this Court in terms of Section 374 Cr.P.C. (State Code), hence Confirmation No.23/2009. 3. Three minor children namely Arjun (aged 6/7 years), Rakesh (aged 4 years) and Santosh Kumari (aged 7/8 years) are the deceased in this case; whereas PWs Jia Lal, Kamlesh Kumari and another minor child Gulshan (aged 2/3 years) are the injured. Prosecution case in brief: 4. On 20.09.2000 at 02.15 hours, PW Kaka Ram complainant herein, along with one PW Suraj Parkash lodged a verbal report with Police Station Akhnoor that about 1.15 a.m. during wee hours of 20.09.2000, he (Kaka Ram) heard cries of Mst. Kamlesh Kumari saying save, save, killed, killed, whereupon he ran towards the house of Kamlesh Kumari and saw that some people had already assembled there and Kamlesh Kumari was saying that her brother-in-law (real sister's husband), the accused herein, armed with a Dharati (sharp edged weapon) had committed murderous assault on her husband and minor children and after murdering her family escaped from the scene of occurrence. Three children namely Arjun, Rakesh and Santosh Kumari were seen lying in the pool of blood on their bed and Jia Lal, Kamlesh Kumari and Gulshan (the other minor child), in a seriously injured condition. Alongside the beds, a nylon chapel having mark `V.K.' was lying on the floor. Three children namely Arjun, Rakesh and Santosh Kumari were seen lying in the pool of blood on their bed and Jia Lal, Kamlesh Kumari and Gulshan (the other minor child), in a seriously injured condition. Alongside the beds, a nylon chapel having mark `V.K.' was lying on the floor. On this, case FIR No.35/2000 came to be registered against the accused under Sections 302/307/448 RPC in Police Station Akhnoor. 5. It surfaced during the investigation that accused was staying with PW Jia Lal only as he is related to Jia Lal from parental side. Kamlesh Kumari had arranged marriage of the accused with her real sister-Sudesh Kumari, but the accused used to beat his wife oftenly, who started going to her parents house very frequently. However, Kamlesh Kumari and her husband Jia Lal managed to bring Sudesh Kumari back to the house of the accused on 2/3 occasions, but few days before the present occurrence when Sudesh Kumari had gone to her parents house after she was beaten by the accused, her parents had refused to send her back, upon which, Kamlesh Kumari and Jia Lal were asked by the accused to intervene who flatly refused and told the accused that he himself should go and bring his wife back to her matrimonial home which was not liked by the accused and he nourished grudge on this count and attacked Jia Lal and his entire family on the night intervening 19/20.09.2000 when they were sleeping in the room. 6. SI Chander Mohan PW, the investigating officer of the case, visited the place of occurrence, took dead bodies of three deceased children in his possession and sent them for postmortem. The injured namely Kamlesh Kumari, Jia Lal and minor child Gulshan were also sent for medical treatment to Khour Hospital. As they had received serious injuries, they were referred to Government Medical College Jammu for their further treatment. Scene of crime was also photographed, simple and blood stained soil were seized underneath the bodies of deceased and injured. One blood stained chapel and two blood stained bed sheets were also sealed and taken into possession. From the dead bodies of the deceased children, blood samples were also taken, which were seized and sealed. Nishandehi of the scene of occurrence was also got conducted by Patwari Halqa. One blood stained chapel and two blood stained bed sheets were also sealed and taken into possession. From the dead bodies of the deceased children, blood samples were also taken, which were seized and sealed. Nishandehi of the scene of occurrence was also got conducted by Patwari Halqa. Statements of witnesses were recorded under Section 161 Cr.P.C. Seized articles were re-sealed by Naib Tehsildar and sent to Forensic Science Laboratory (FSL) for chemical analysis. After obtaining the medical opinion from the doctor vis-a-vis the injured, Sections 324, 325, 326 and 307 RPC were also added. Accused was arrested and weapon of offence also recovered. After completion of the investigation, charge-sheet was filed against the accused in terms of Section 173 Cr.P.C. for the offences punishable under Section 302/307/326/324/448 RPC, for which, he was charged and tried and now stands convicted and sentenced as indicated hereinabove. Evidence led by prosecution: 7. In support of its case, prosecution has examined as many as twenty seven witnesses. Those are:- "Kaka Ram, Suraj Parkash, Jia Lal, Kamlesh Kumari, Vidya Devi, Gili Ram, Sudesh Kumari, Punu Devi, Garu Ram, Punu Ram, Chain Lal, Vishwa Nath, Prem Chand, Basu Ram, Kamal Dass, Sudhan Lal, Bishan Singh, Jaswant Singh, Krishan Lal, Kuldeep Raj, Suresh Kumar, Sat Pal, Des Raj, Sanjna, Dr. D. J. Raina, K. K. Raina & Chander Mohan." 8. Following are the seizure memos prepared by the investigating officer during the investigation:- a. EXPW-SP-I is the seizure memo regarding seizure of blood stained clay which was seized in presence of PWs Suraj Parkash and Kaka Ram taken underneath the cot of Jia Lal. b. EXPW-SP-II is the seizure memo regarding seizure of plain clay which was seized in presence of PWs Suraj Parkash and Kaka Ram underneath the cot of Jia Lal. c. EXPW-SP-III is the seizure memo of blood stained clay seized by the Investigating Officer in presence of PWs Suraj Parkash and Kaka Ram which was taken underneath the cot where deceased Santosh Kumari was lying and EXPW-SP-IV is the seizure memo regarding plain clay. d. EXPW-SP-V, EXPW-SP-VI & EXPW-SP-VII are also the seizure memos regarding seizure of blood stained clay and plain clay prepared in the presence of PWs Suraj Parkash and Kaka Ram. e. EXPW-SP-IX is the seizure memo regarding nylon chapel which was seized from the spot having mark `V.K.' in the presence of PWs Suraj Parkash and Kaka Ram. d. EXPW-SP-V, EXPW-SP-VI & EXPW-SP-VII are also the seizure memos regarding seizure of blood stained clay and plain clay prepared in the presence of PWs Suraj Parkash and Kaka Ram. e. EXPW-SP-IX is the seizure memo regarding nylon chapel which was seized from the spot having mark `V.K.' in the presence of PWs Suraj Parkash and Kaka Ram. f. EXPW-SP-X & EXPW-SP-XI are the memos of blood stained bedding which was seized in the presence of PWs Suraj Parkash and Kaka Ram. g. EXPW-SP-XII is the seizure memo of cot, EXPW-SP-XIII of Parandha, EXPW-SP-XIV of Chapel seized near the well. h. EXPW-CL, EXPW-CL-I, EXPW-PR & EXPW-PR-I are the seizure memos of blood stained clothes. i. EXPW-PR-II and EXPW-PR-III are the seizure memos of blood samples. j. EXPW-BS is the seizure memo of taking of weapon of offence after the arrest of the accused and EXPW-BS-II is the seizure memo of taking into possession while coloured mare which was used by the accused for running from the place of occurrence. k. EXPW-BN is the seizure memo of taking into possession the shirt of infant Gulshan Kumar in the presence of PWs Kamlesh Kumari and Bishwa Nath. l. EXPW-BN-I is the seizure memo with regard to blood stained shirt and dupata, which, were produced by Kamlesh Kumari. m. EXPW-GR is the seizure memo vide which one ring mark-'A', which was used for sealing and kept on supardaginama of one Garu Ram; another ring mark-'M' which was used for sealing was taken into possession vide EXPW-BS-III and kept on supardaginama of Suran Lal; and another ring with mark-'D' was kept on supardaginama of Kaka Ram vide EXPW-KR. White coloured mare was kept on supardaginama of Prem Chand vide EXPW-PC. Dead bodies were handed over to Pannu Ram vide receipt EXTP-9/1. n. EXTP-25/4, EXTP-25/5 and EXTP-25/6 are the injuries reports of injured Kamlesh Kumari, infant Gulshan Kumar and Jia Lal. EXTP-26 is the report of FSL. EXPTP-27/1 is the Site Plan of the place of occurrence prepared by Patwari Halqa showing the place where the dead bodies of three children were lying on the cots and the place where the other three injured were sleeping. 9. This is all about the prosecution case as placed before the trial Court. 10. The accused when examined in terms of Section 342 Cr.P.C has denied all the allegations against him. 9. This is all about the prosecution case as placed before the trial Court. 10. The accused when examined in terms of Section 342 Cr.P.C has denied all the allegations against him. However, no explanation has been furnished by him in his defence. 11. Although the prosecution has examined as many as twenty seven witnesses, but some of the witnesses happen to be witnesses to the recovery as is evident from the seizure memos, reference thereto also made in the preceding paras, and that the case of the prosecution is primarily hinging upon the evidence of Jia Lal and Kamlesh Kumari, the injured witnesses of the occurrence, we instead of reproducing the evidence of all the twenty seven witnesses so as to make our judgment weighty unnecessary, would refer to the statements of Jia Lal and Kamlesh Kumari in extenso and material part only from the evidence of some other witnesses also. 12. Jia Lal has stated that he arranged the marriage of the accused with his sister-in-law and after the marriage, accused used to beat his wife, on which, she started going to her parental house. Accused requested him (Jia Lal) 2/3 times to bring his wife back and he brought her back also from her parental home to the matrimonial house, but the accused did not mend his behaviour and again started beating her, upon which, she again left for her parental house. He then stated that accused came to them and requested him to bring his wife back, upon which, they told him that they would not bring her back and he should go himself and then he went to his in-laws' house, but they refused to send her daughter back and asked him to mend himself first of all. 13. He then stated that accused came to them and requested him to bring his wife back, upon which, they told him that they would not bring her back and he should go himself and then he went to his in-laws' house, but they refused to send her daughter back and asked him to mend himself first of all. 13. With regard to the present occurrence, he stated that on the night of 19/20.09.2000, when he along with his wife and other family members was sleeping in the compound of the house, his daughter Santosh and son Arjun were sleeping with him on the cot, whereas the other children were sleeping with his wife (Kamlesh Kumari), when in the midnight something struck on his head, due to which he got up and saw the accused standing there having Parthi (Dharati) in his hand, upon which, he asked him `what happened' and the accused started inflicting injuries on his three children with Parthi, due to which, they died on spot. He further stated that the accused also injured his one year old minor child, due to which, his left ear was not working. He categorically stated that accused inflicted two strokes on his head with `Dhrat' and he became unconscious. In cross examination, this witness has stated that he was working as labourer and his expenditure was more than income. He denied the suggestion put to him that his financial position was weak, therefore, he killed his family members and then tried to kill himself also and when his wife asked him not to do so, during this process, his wife and child Gulshan also suffered injuries at his hands. He also denied the suggestion that his wife went out and started crying in order to save him. With regard to the sequence of assault, he stated that accused first of all attacked him and then others. He was confronted on this aspect from his previous statement recorded under Section 161 Cr.P.C. This witness has further stated that he gained consciousness in the hospital and thereafter only his statement was recorded by the investigating officer after 14-15 days. He has however admitted that his wife told him about the injuries, suffered by his children. 14. Kamlesh Kumari is wife of Jia Lal and also an injured witness. He has however admitted that his wife told him about the injuries, suffered by his children. 14. Kamlesh Kumari is wife of Jia Lal and also an injured witness. She stated that accused is her brother-in-law, who had married to her sister 5-6 years prior to the occurrence. She also narrates as to how the accused was beating her sister, who went to her parental house and thereafter accused wanted to bring her back, but her parents refused as he was not mending himself. 15. With regard to the present occurrence, she almost toes the lines of her husband Jia Lal and stated that when they were sleeping in their house along with their children, the accused came all of a sudden, assaulted them with Parthi (Dharati). She also stated that her husband was injured by accused and accused came towards her and attacked her with Parthi and then attacked her son- Rakesh on his head. She then stated that the accused again tried to attack her, but she fled away and thereafter he attacked her children and her three children died on the spot. She also talks of Gulshan, her minor son receiving injury. She further stated that she raised cries, on which, people assembled there. She also talks of her husband being hospitalized for 10-20 days. She is categoric in saying that on her cries, Vidya and Lamberdar Kaka Ram came there and enquired about the occurrence from her, upon which, she narrated the whole occurrence to them. She calls Vidya Devi by her nick name. In her cross examination, Kamlesh Kumari admitted that her husband was doing labour work and serving the family with great hardship. She, however, denied the suggestion that on account of expenses, there used to be fight between her and her husband and because of the meager income, her husband killed her children and attacked her also. She also denied that her husband and accused were consuming liquor together. She also denied that she and accused having relations. So far as sequences of occurrence is concerned, she gave little bit different version from her husband. She has been confronted from her previous statement under Section 161 Cr.P.C. with regard to the fact of moonlit night and hearing the sound of someone walking, which made her awake. She also denied that she and accused having relations. So far as sequences of occurrence is concerned, she gave little bit different version from her husband. She has been confronted from her previous statement under Section 161 Cr.P.C. with regard to the fact of moonlit night and hearing the sound of someone walking, which made her awake. She is also confronted from another fact from her previous statement recorded under Section 161 Cr.P.C., where it is mentioned that when her husband was attacked, she was giving milk to her son Gulshan and when she heard the growse of her husband, she saw accused assaulting him and raised cries when the accused was proceedings towards her, upon which, Sarpanch, Naib Sarpanch and one lady namely Gosha @ Vidya Devi came on the spot and saw the accused running away. She is, however, categoric in saying that her husband became unconscious after the receipt of injuries. She also talks of one chapel of the accused, which remained at the spot. 16. We have another set of four witnesses namely PWs Kaka Ram, Suraj Parkash, Vidya Devi & Gili Ram. PW Kaka Ram is the First Informant as on his information the FIR came to be lodged in Police Station Khour. He stated that he was sleeping in his house when he heard cries of Kamlesh Kumari and he ran towards the spot and saw her three children dead and fourth son in an injured condition. He also noticed injuries on the person of Jia Lal and Kamlesh Kumari. He is also witness to certain seizure memos. PW Suraj Parkash had accompanied Kaka Ram to the Police Station. He is also witness to certain recovery memos. PW Vidya Devi had also reached the spot immediately after the occurrence on hearing the cries of Kamlesh Kumari saying Vijay killed them and asking for help. Her husband was also with her and they saw the accused running away while climbing the wall. PW Gili Ram's statement is also to the effect that he heard the cries of Kamlesh Kumari that accused had killed them and after hearing her cries, he went to the spot and saw that three children were killed and fourth was injured. He also stated that Jia Lal was lying unconscious and Kamlesh Kumari was saying that accused had killed her children and inflicted injuries on her husband. He also stated that Jia Lal was lying unconscious and Kamlesh Kumari was saying that accused had killed her children and inflicted injuries on her husband. He also stated that Vidya Devi had also reached the spot and she told him that she (Vidya Devi) had seen the accused running away as it was moonlit night. 17. Another set of evidence is from the family of in laws of the accused namely PWs Sudesh Kumari wife of the accused, Bishnu Devi, Gharu Ram brother-in-law of Sudesh Kumari. Sudesh Kumari depicts her woeful tale as to how the accused started harassing and beating her within few months of the marriage on demand of dowry to which she resisted saying that her parents could not arrange. She also stated that all what had happened with her at the hands of the accused forced her to go to her parental house at two/three occasions and she was brought back because of intervention of Jia Lal and her sister Kamlesh Kumari, still the accused did not mend his ways and kept on harassing her and then she again went to her parental house three days prior to the occurrence and thereafter her parents did not agree to send her back with the accused. She further talks of the information received by them to the effect that the accused had killed whole of the family of Kamlesh Kumari. 18. We have felt the necessity of reproducing the medical evidence also. The following injuries were found in the postmortem of deceased-Santosh Kumari:- i) an incised wound with clear cut edges over left external ear starting 1" posterior to fragus extending obliquely upwards & backwards, cutting the external ear and underlying hair & bone partially the dimension being 1 1/2" x (1" above and below). ii) An incised crescent sharped wound with clear cut edges cover with clotted & liquefied blood & tapering at the (sick) of the dimensions of 10" x 1 1/2 " (in center) starting from posterior aspect of neck in the midline at 4" `s from its junction with the trunk extending interiorly on the left side over occipital region to reach interiorly on left side 1" above the left ear and 1" above the eyebrow to reach the parietal region, 2" `s from midline. The bone and the brain substance underneath are cut and the brain substance is protruding through the wound. The bone and the brain substance underneath are cut and the brain substance is protruding through the wound. As per the opinion, death has occurred due to shock resulting from massive external hemorrhage and internal hemorrhage into the brain substance and fracture of skull bones with some sharp edged weapon. Duration of death since within three hours to three days of post mortem examination. The following injuries were found in the postmortem of deceased-Arjun:- i) An incised wound with clear cut edges covered with clot of liquefied blood extending form 1" lateral to the midline oil right side of the forehead laterally and horizontally to the right side above 21/2" above right eye brow cutting through soft firms & partially the bone. The wound is 2-1/2"X 1/2"X " in dimension and the ends are tapering. ii) An incised crescent sharped wound, with clear cut edges cover with clotted & liquefied blood starting from a point 1" above and 1" in front of the root of left ear and crossing the left eyebrow at its lateral end and continuing obliquely upwards to the right side crossing the midline about 1 1/2" above the root of nose and extending posterior and obliquely outwards towards the occipital region. The dimensions of the wound are 9"x l" cutting through bore and brain matter. The ends of the wound are tampering and the brain matter is protruding through it. iii) An incised wound with clear cut edges covered with clotted and liquefied blood l"x 1/4 "x " in size extending over the root of nose equally on both sides. As per the opinion, deceased has died due to massive hemorrhage both external & internal into the brain substance and due to the injury to the brain substance, leading to shock and death. The injuries are caused by some sharp edged weapon. The following injuries were found in the postmortem of deceased-Rakesh Kumar:- i) An incised wound with clear cut edges covered with clotted & liquefied blood, 9"xl" in size cutting through bone & brain matter extending lateral end of left side of chin upwards through face & lateral side of forehead towards middle of the scale near midline. The wound is crescent shaped tapering towards ends and brain matter is protruding through it. The wound is crescent shaped tapering towards ends and brain matter is protruding through it. ii) An incised wound 3"x 1" extending from middle of the nose horizontally joining the first wound 2" `s from below cutting through the nose & bone and soft tissues underneath. The wound is covered with clotted and liquefied blood & has got clear cut edges. iii) An incised wound with clear cut edges, 8"x 1" covered with clotted and liquefied blood & tapering towards ends starting from a point 2" `s to the right of the nose extending towards left cutting through the nose and then continuing obliquely upwards joining the first wound 3" `s from above and then extending laterally to the parietal region ending 3 1/2" `s above left inner bone and brain matter underneath is cut and brain matter is protruding out. The wound is crescent shaped tapering towards ends. As per the opinion, deceased had died due to massive external & internal hemorrhage into substance of the brain, multiple skull bone fractures and injuries to the brain matter leading to shock and death. The injuries are caused by some sharp edged weapon. The following injuries were found on examination of injured-Kamlesh Kumari:- i) An abrasion 2mm x 1" on the front of the left forearm in the center. ii) An incised wound 1" x 2mm over left thumb from the root of the distal phalanx extending from external to medial and obliquely towards the puly of the thumb. Edges are clear. As per the opinion, the first injury is caused by some pointed thing and the 2nd injury with a sharp edged weapon. Both the injuries are found to be simple in nature. The following injuries were found on examination of injured-Gulshan Kumar:- i) A small incised wound extending from the root of the left ear vertically upwards. The edges are clear-cut. The size of the wound 1"(length) x 1"(depth) x 1/3"(breadth). ii) In continuity with the Ist injury are two linear bruises parallel to each other with clear space in between extending from the upper end of the Ist injury. Size of the injury: 4" x 1/6". iii) A hemorrhage (smelling) 2" x 2" in front of the left ear with no external mark of violence. No bony injury seen in X-ray. Size of the injury: 4" x 1/6". iii) A hemorrhage (smelling) 2" x 2" in front of the left ear with no external mark of violence. No bony injury seen in X-ray. As per the opinion, the injuries are caused by the same weapon simultaneously, the first injury caused by the sharp end of the weapon and the 2nd injury caused by the blunt portion of the weapon and the 3rd injury by the extraversion of the blood beneath the skin due to the same wound. All the injuries are simple in nature. The following injuries were found on examination of injured-Jia Lal:- i) An linear incised wound with clear cut edges about 4 inches above left eyebrow extending from above the lateral end of eyebrow over the forehead upwards & medially to the right side, of the sale beyond midline. Size of the injury: 10" x1" x1". The wound is far deep cutting the bone up to 1/3". No active bleeding from the site. The wound is tapering towards the ends. As per X-ray report (1) Depressed fracture seen in parietal bone, (2) Linear fracture seen in front of parietal bone. As per the opinion, the wound is caused by some sharp edged weapon leading to the fracture of the skull bones and subsequently declared grievous. 19. Weapon of offence was shown to PW Dr. D. J. Raina for seeking his opinion, who opined that all the injuries found on the deceased as well as injured could be caused by the weapon (Darati) shown to him. 20. As stated above, PW Chander Mohan has conducted the investigation of present case, who at the time of occurrence was posted as SHO Police Station, Khour. He stated that after registration of the FIR EXPW-C, he went to the place of occurrence where Jia Lal, his wife and their family members were injured by the accused. Jia Lal was lying in an injured condition. He further stated that vide separate seizure memos, dead bodies were taken into custody and injured were sent to hospital at Khour from there they were referred to Govt. Medical College Jammu. He stated that Kamlesh Kumari wife of Jia Lal was saying on the spot that accused had killed his family. Jia Lal was lying in an injured condition. He further stated that vide separate seizure memos, dead bodies were taken into custody and injured were sent to hospital at Khour from there they were referred to Govt. Medical College Jammu. He stated that Kamlesh Kumari wife of Jia Lal was saying on the spot that accused had killed his family. His further statement is with regard to preparation of Site Plan, lifting of blood stained earth, blood stained bedding, two cots, one nylon chapel having mark `V.K.' and one Parandha vide different seizure memos. He then talks of the postmortem conducted on the dead bodies and taking of the samples of the blood from the dead bodies through different seizure memos. He then stated about the recording of statement of certain witnesses. He further stated that injured Jia Lal, minor child Gulshan and Kamlesh Kumari remained in the hospital till 01.10.2000 and on 02.10.2000 he went to the house of Jia Lal and recorded his statement and recorded the statement of Kamlesh Kumari also. He also talks of taking into possession the clothes of Gulshan and Kamlesh Kumari through seizure memos. He talks of the motive as surfaced during investigation where he found that after marriage, the accused used to make demand of dowry, which he `could not get and started harassing his wife due to which she left her matrimonial house number of times and Jia Lal and Kamlesh Kumari had brought her back, still the accused used to beat her and she left her matrimonial house and ultimately Jia Lal and Kamlesh Kumari refused to intervene and this was the motive for committing this crime. He also stated that when accused had gone to bring his wife back and her parents refused to send her with him, the accused was beaten by his-in-laws. In his cross-examination, this witness is categoric in saying that he did not record the statement of Kamlesh Kumari on 02.09.2000, but recorded her statement on 02.10.2000 only. A suggestion was put to him that intentionally he had not recorded the statement of Kamlesh Kumari on the date of occurrence as the killer was Jia Lal who killed his children because of poverty and subsequently falsely implicated the accused. A suggestion was put to him that intentionally he had not recorded the statement of Kamlesh Kumari on the date of occurrence as the killer was Jia Lal who killed his children because of poverty and subsequently falsely implicated the accused. With regard to the confrontation occurred in the statements of the PWs, a particular question was put to this witness so as to give evidentiary value to the confronted piece of evidence. With regard to the distance between the cots and kitchen as shown in the Site Plan, certain questions were put to the Investigating Officer, but in our considered view, those are of no relevance, therefore, we do not feel the necessity of referring to them. 21. Referring to remaining evidence, in our view would not be relevant for the purposes of discussion. 22. Heard Mrs. Kour, learned Sr. Advocate assisted by Mr. Gorka, Advocate. It is really said state of affairs that the State goes unrepresented in this case. Perused the trial Court record also. Submissions on behalf of the accused on the merits of the case: 23. Although the entire stress laid by Mrs. Kour, learned Sr. Advocate, is for commuting the `Death Sentence' to `Life Imprisonment' but for dislodging the case of the prosecution, she has also made an attempt. Learned counsel submitted that the motive in this case to eliminate the entire family of Jia Lal is very weak as the accused could not possibly have any motive to kill the children as the grievance if at all was there in the bosom of the accused, it was qua Jia Lal and Kamlesh Kumari, who had refused to bring his wife back from her parents house despite his asking and the minor children figured no-where. According to the learned counsel, if the accused had to take any revenge, then he should have rather gone to the house of his-in-laws as they had not only refused to send his wife back, even beaten him also as surfaced during the investigation and stated by the Investigating Officer. According to Mrs. Kour, the case set up by the accused that Jia Lal, in fact, has killed his children because of the financial crunch appears to be more probable in this case and that the accused has been falsely implicated. 24. According to Mrs. Kour, the case set up by the accused that Jia Lal, in fact, has killed his children because of the financial crunch appears to be more probable in this case and that the accused has been falsely implicated. 24. According to the learned counsel, Kaka Ram and Vidya Devi are not the eye witnesses to the occurrence and they have stated only that part of the prosecution story which was disclosed to them by Kamlesh Kumari and she has made an attempt to save Jia Lal. 25. Mrs. Kour has also pointed out certain discrepancies in the statement of PWs Jia Lal and Kamlesh Kumari, the injured witnesses to the occurrence. The main discrepancy pointed out by her is that Jia Lal when stepped into the witness box, stated that after accused had inflicted injury on his head, he asked him as to what had happened to him and thereafter the accused inflicted injuries on his three children with Dharati, due to which, they died on the spot and thereafter another minor child was also injured by the accused and he does not talk of receiving any injury by Kamlesh Kumari; whereas Kamlesh Kumari when stepped into the witness box, stated that after her husband (Jia Lal) was attacked by accused on his head, she awoke and then accused came towards her to attack her with Dharati and then tried to attack her son Rakesh and thereafter once again tried to attack her but she fled away and then he attacked his three children. According to learned counsel, these contradictions create lot of doubts about the actual involvement of the accused in the crime. 26. Another flaw, which learned counsel wanted to point out, is that in her cross examination, Kamlesh Kumari has stated that when her husband was attacked, she was giving milk to her son Gulshan Kumar and when she heard the growse of her husband, she saw that accused was assaulting him and thereafter she started raising cries seeing that accused was proceeding towards her and her cries attracted Sarpanch, Naib Sarpanch, Rattan Lal and one lady Vidya Devi. Learned counsel submitted that this was never the case of PW Jia Lal when he stepped into the witness box and this all goes to show that these two star witnesses to the occurrence may be injured are trying to mislead the Court by projecting a story of an assault upon them, whereas the circumstances on the other hand are probablising the case put forth by the accused that Jia Lal after committing the murder of his three children and attacking his wife, made an attempt to commit suicide by injuring himself. 27. Primarily on the strength of aforesaid flaws as pointed out by Mrs. Kour, she prays for acquittal of the accused for all the charges. Submissions on sentence part: 28. On the question of sentence, learned Sr. Counsel submitted that the present case on its individual facts does not fall under the head `rarest of the rare cases' for awarding `death sentence' and it deserves to be commuted to `life imprisonment' in the event of the conviction being maintained as already recorded by the learned Trial Court. 29. In order to strengthen her submissions, Mrs. Kour submitted that there are many circumstances justifying the passing of the lighter sentence and if the Court locates `aggravating and mitigating circumstances' of the `present case for striking the right balance, the maximum weightage will be given to the `mitigating circumstances' which speak in favour of the accused. Learned counsel submitted that from the facts of the present case, it appears that the accused, perhaps, lost his mental equilibrium for a short spell of time when his co-brother Jia Lal and Kamlesh Kumari, real sister of his wife, refused to involve themselves in his matrimonial affairs which he was not expecting at all and this disturbed phase drove him to take this drastic step, otherwise, there could not be any reason for him to cause any injury at least to any of the children of Jia Lal. Learned counsel submitted that the accused must be repenting upon his act while suffering incarceration in the jail where he is confined for the last more than 13 years. Learned counsel submitted that the accused must be repenting upon his act while suffering incarceration in the jail where he is confined for the last more than 13 years. Learned counsel then submitted that the accused has no criminal history; he is not a professional killer and even the State has also not led any evidence to establish that the accused would constitute continuing threat to the society, therefore, the principle that the life is the rule and death sentence is an exception must be applied to the present case. 30. In support of her submissions, Mrs. Kour has relied upon the following judgments of Hon'ble Supreme Court:- i) Sushil Sharma v. The State of N.C.T. of Delhi reported in 2013 (6) Supreme 610 ; ii) Kanhaiya Lal & Ors. v. State of Rajasthan (with connected matters) reported in 2013 AIR SCW 2892; iii) Gudda @ Dwarikendra v. State of Madhya Pradesh reported in 2013 (7) Supreme 107 ; and iv) Sanaullah Khan v. State of Bihar reported in 2013 (2) RCR (Criminal) 135. 31. As stated above, no one has appeared before us on behalf of the State to render assistance to the Court. Discussion on merits of the case: 32. No doubt, the motive on the face of it does appear to be that strong with the accused to eliminate the entire family of Jia Lal as he and his wife had refused to extend any helping hand to the accused for bringing his wife back after she was beaten by the accused and left for her parental house, but it is unsound to suggest that no criminal act can be done even with a weak motive. In the case on hand, for accused it might have turned to be a very strong motive as he could not hear `no' from his co-brother and Kamlesh Kumari, his sister-in-law as they were the persons who were instrumental in arranging the marital ties of the accused. It depends upon individual psyche of a person and motive is psychological phenomenon. In the case on hand, one fact has surfaced on record from the statement of investigating officer that when accused had gone to his in-laws house to bring his wife back, he was beaten by his in-laws. It depends upon individual psyche of a person and motive is psychological phenomenon. In the case on hand, one fact has surfaced on record from the statement of investigating officer that when accused had gone to his in-laws house to bring his wife back, he was beaten by his in-laws. It is quite possible that accused might have taken ill of it thinking that had Jia Lal and Kamlesh Kumari shown their indulgence and accompanied him to bring his wife back, the situation of beating him at the hands of his in-laws would not have arisen. Under the normal circumstances, the accused should have assaulted the family members of in-laws instead of attacking Jia Lal and Kamlesh Kumari & their children, but as stated above, it depends upon an individual's reaction and individual psyche. Therefore, it cannot be said in the present case that accused had no motive at all to take revenge from Jia Lal. We are conscious of the fact that this has also come in the evidence that Jia Lal is related to the accused and both were staying together, but that fact would not make any difference so far as motive is concerned. Even for a weakest motive, crime can be committed and it can turn out to be very brutal in nature. 33. The present case, in fact, is hinging upon the statements of two injured witnesses namely Jia Lal and his wife Kamlesh Kumari as it is their family only, which has been targeted by the accused. So evidence of these two witnesses need to be appreciated. The occurrence is in the wee hours of 20.09.2000 and Jia Lal could not even think in his wildest dream that accused would take this drastic step. It is not a case of blind murder, where the question would arise as to who actually had killed the children of Jia Lal and assaulted the remaining three members including one minor son of hardly one year. The defence projected by the accused is that it is Jia Lal, the father of the three children who was facing financial crunch in the family has gone to the extent of killing his three children, and assaulted his wife also and thereafter made an attempt to kill himself. This does not appear to be probable at all, if one looks at the medical evidence reproduced hereinabove. This does not appear to be probable at all, if one looks at the medical evidence reproduced hereinabove. Not only three minor children have been butchered, the injury which is received by Jia Lal cannot be said to be self suffered or self inflicted injury at all. It is on the vital part of the body i.e. head resulting into depressed fracture of the Parietal bone. This shows that Jia Lal has been assaulted by someone when he was sleeping or awake on the cot. This all demolishes the defence tried to be built by the accused. 34. Much has been said by Mrs. Kour, learned Sr. Advocate, while pointing out discrepancies in the manner of assault as to whether Jia Lal and Kamlesh Kumari had received injury first of all or the children, but in our considered view all these discrepancies would pale into insignificance when presence of accused in the compound of Jia Lal is not held to be doubtful. There appears to be no reason with the Court to disbelieve these two star witnesses with regard to the presence of the accused at the site as both had no motive to falsely implicate the accused in this case. It is also not believable that Kamlesh Kumari in order to save her husband would falsely implicate the accused because he was harassing her real sister. When the present case is tested on its individual facts, where complicity of the accused in the commission of the offence is not at all doubtful, discrepancies crept in the statements of Jia Lal and Kamlesh Kumari with regard to the exact sequence in which the occurrence had actually taken place would be an insignificant issue for discussion. In this case, the complainant side was taken by surprise when accused all of a sudden entered the compound of Jia Lal and opened the assault with the weapon (Dharati) he was carrying in his hand. We are very much conscious of the fact that these two injured witnesses have been confronted from their previous statements recorded by the police under Section 161 Cr.P.C. on certain aspects with regard to the manner in which they were assaulted, but in our considered view, the accused will not be able to derive any benefit from all those confronted portion of the evidence so as to dislodge the prosecution case in its totality. Even the most truthful witnesses are bound to differ on certain aspects when they step into the witness box. It is but natural. Therefore what is to be noticed by the Court is, whether the discrepancies occurred shatter the basic substratum of the case or not. In the present case on hand, Jia Lal and Kamlesh Kumari, who otherwise are true witnesses to the occurrence, can be held to untrustworthy because they were confronted from their previous statement oncertain aspects. 35. We are also conscious of the fact that certain discrepancies have crept in the statement of Pws-Kaka Ram and Vidya Devi, who had reached the spot after hearing the cries of Kamlesh Kumari, as Kaka Ram did not state that he saw the accused running away from the scene of occurrence; whereas Vidya Devi stated that when she heard the cries of Kamlesh Kumari, she immediately reached the spot and saw the accused climbing the wall and then running away from the scene of occurrence and thereafter she entered the compound. There is also a discrepancy with regard another fact as to whether Kaka Ram had reached the spot first of all or Vidya Devi, but all these discrepancies, in our view, would again not cause any damage to the prosecution for the reason that these two witnesses have not actually seen the occurrence as Kamlesh Kumari, had narrated the entire occurrence to them after they reached the spot. Had the accused not been named in the F.I.R. lodged immediately after the occurrence, the complexion of the case could be otherwise. The evidence available on record is that Kamlesh Kumari and Jia Lal were shifted to hospital for treatment and Kaka Ram along with PW Suraj Parkash had gone to the Police Station to lodge the report. PW Kamlesh Kumari, who has incidentally received simple injuries on her person could very well narrate the occurrence to the person gathered at the spot as only her husband after the receipt of injury on his head had fallen unconscious and she was able to speak. 36. PW Kamlesh Kumari, who has incidentally received simple injuries on her person could very well narrate the occurrence to the person gathered at the spot as only her husband after the receipt of injury on his head had fallen unconscious and she was able to speak. 36. We are also conscious of the fact that there appears to be somewhat lapse on the part of the investigating officer, although not pointed out by learned counsel for the accused as the statement of Kamlesh Kumari is recorded on 02.10.2000 when statement of Jia Lal was recorded; whereas Kamlesh Kumari was fit to make a statement much before that and her husband remained unfit because of the injury on his head, but this lapse too would not dent the case of the prosecution as name of the accused was already disclosed by the first informant. 37. We find another circumstance, which supports the case of the prosecution. The weapon of offence (Dharati), which was seized vide EXPW-BS was stained with blood regarding which opinion with respect to injury on deceased and injured were obtained by Dr. D. J. Raina, who after examining the same, opined that the injury suffered by the deceased and the injured could be caused by the said weapon. The blood stained soil, plain soil seized from the site of dead bodies as well as injured, blood stained bedding, clothes of the deceased and injured, blood stained clothes of the accused, blood stained weapon (Dharati) and blood samples of the deceased were sent to FSL for examination and the opinion was sought on the following points:- i) Whether blood in exhibits marked as A, C, E, G, J, K, L, M, N, Y, Z, `AR', `RK' & `SK' is human? If so, intimate group in each exhibit. ii) Whether soil in exhibits "A" &"B"; "C" & "D"; "E" and "F" is of one place. ii) Whether the blood is exhibit `C' is of same person as in Exhibit `SK'. iii) Whether the blood in exhibit `E' is same as in `RK' and is of the same person. iv) Whether the blood in exhibit `G' is same as in `AR' & is of same person." 38. ii) Whether the blood is exhibit `C' is of same person as in Exhibit `SK'. iii) Whether the blood in exhibit `E' is same as in `RK' and is of the same person. iv) Whether the blood in exhibit `G' is same as in `AR' & is of same person." 38. Sealed packets containing the aforesaid exhibits were received by F.S.L. and after their examination F.S.L. gave its opinion vide EXTP-26 to the effect that the blood was of human of Group-A. The blood on the blood stained clothes of the deceased, injured and that on the shirt of the accused was also human blood and the group was `A'. From this, it could be said that the group of the blood of the shirt of the accused and that of the deceased and injured was the same. This certainly is an additional circumstance, which goes against the accused, but primarily we are believing the statements of the star witnesses namely Jia Lal and Kamlesh Kumari, who, in fact, had seen the accused killing their children and assaulting them. 39. From all what is discussed hereinabove, it is established on record beyond any shadow of reasonable doubt that it is the accused only, who effected his entry in the house of Jia Lal on the night intervening 19/20.09.2000 and killed three children namely Arun, Rakesh and Santosh Kumari and injured Jia Lal, Kamlesh Kumari and Gulshan, another minor son. The defence put forth by the accused appears to be imaginary story, which does not fit in the present set of circumstances. Therefore, the conviction as already recorded by the learned trial Court for the offences punishable under Sections 302/307/326/324/448 RPC vide impugned judgment deserved to be upheld. Ordered accordingly. Discussion on sentence: 40. The next issue that emerges for our anxious 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 or to confirm the death penalty as already handed down by the learned Trial Judge. 41. Ordered accordingly. Discussion on sentence: 40. The next issue that emerges for our anxious 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 or to confirm the death penalty as already handed down by the learned Trial Judge. 41. Any discussion on the subject of death penalty actually commences with the Constitution Bench decision in `Bachan Singh v. State of Punjab' (1980) 2 SCC 684 where constitutional validity of death penalty was tested and 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." 42. 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. (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." 43. 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. 44. 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 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. 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." 45. To be fair to Mrs. Kour, let us now advert to the facts of each case relied upon by her in support of her submissions praying for life imprisonment. In Sushil Sharma's case (Supra), the appellant accused was the President of Delhi Youth Congress (I) and he got married secretly with the deceased who was also In-charge Youth Congress girls wing. The accused suspected her fidelity after marriage and ultimately she was done to death in a very brutal manner. While maintaining the conviction of the accused, the Hon'ble Supreme Court held that the murder was the outcome of strained personal relationship and it could not be said an offence against the Society. After noticing several mitigating circumstances in favour of the accused, the death sentence was commuted to life imprisonment. While maintaining the conviction of the accused, the Hon'ble Supreme Court held that the murder was the outcome of strained personal relationship and it could not be said an offence against the Society. After noticing several mitigating circumstances in favour of the accused, the death sentence was commuted to life imprisonment. In Kanhaiya Lal's case (supra), the incident had resulted into death of five persons and it was outcome of suspicion nurtured by the main convict that the deceased were responsible for his son's death, therefore, he with many other had constituted an unlawful assembly to commit the offence and some of the accused, who were similarly placed, were awarded life imprisonment. The case of the main convict was, thus, held not to be a case of imposing extreme penalty of death and under these circumstances, it was held that computation of death sentence to life imprisonment was justified. In Gudda @ Dwarikendra's case (supra), the appellant convict was having suspicion of illicit relation of his wife with the deceased and he invited deceased, his pregnant wife and child to lunch and then murdered the deceased, his wife and the child. While upholding the conviction and considering the case of the convict for death penalty or life imprisonment, the Hon'ble Supreme Court held that the crime was pre-mediated in respect of the deceased husband, while on the other, no motive could be culled out for the other two deceased persons as two murders seem to have been translated due to sudden realization of the accused and extreme fear of being caught for the murder of deceased husband. It is in this contextual fact, the Hon'ble Supreme Court held that the case did not inspire confidence so as to place it in the category of `rarest of the rare'. In Sanaullah Khan's case (supra), the accused had committed triple murder and the death sentence was awarded on the ground that as per postmortem, victims were killed in a barbaric manner. Death sentence was commuted to life imprisonment by the Hon'ble Supreme Court, inter alia, on the ground that there was no witness to the incident, thus, no evidence to show how the brutality took place. The prosecution case was resting upon circumstantial evidence. Death sentence was commuted to life imprisonment by the Hon'ble Supreme Court, inter alia, on the ground that there was no witness to the incident, thus, no evidence to show how the brutality took place. The prosecution case was resting upon circumstantial evidence. The Trial Court held in this case that the appellant had eliminated three deceased and if he was allowed to continue to live in the Society, he would be a great threat to his co-human being. The Hon'ble Supreme Court held that this reason is based on apprehension and may not be enough to impose an extreme penalty of death. 46. We may state here that the aforesaid four cases on which Mrs. Kour is relying, are distinguishable on facts. 47. It would, however, be profitable herein to reproduce observations made by Hon'ble Supreme Court in Sushil Sharma case (supra) after noticing several judgments considered by the Apex Court on the issue:- 79. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases. Extreme poverty and social status has also been taken into account amongst other circumstances for not awarding death sentence. In few cases, time spent by the accused in death cell has been taken into consideration along with other circumstances, to commute death sentence into life imprisonment. Where the accused had no criminal antecedents; where the State had not led any evidence to show that the accused is beyond reformation and rehabilitation or that he would revert to similar crimes in future, this Court has leaned in favour of life imprisonment. In such cases, doctrine of proportionality and the theory of deterrence have taken a back seat. The theory of reformation and rehabilitation has prevailed over the idea of retribution. 80. In such cases, doctrine of proportionality and the theory of deterrence have taken a back seat. The theory of reformation and rehabilitation has prevailed over the idea of retribution. 80. On the other hand, rape followed by a cold-blooded murder of a minor girl and further followed by disrespect to the body of the victim has been often held to be an offence attracting death penalty. At times, cases exhibiting premeditation and meticulous execution of the plan to murder by levelling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, hapless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where, it is established that the accused is a confirmed criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence. Many a time, in cases of brutal murder, exhibiting depravity and sick mind, this Court has acknowledged the need to send a deterrent message to those who may embark on such crimes in future. In some cases involving brutal murders, society's cry for justice has been taken note of by this court, amongst other relevant factors. But, one thing is certain that while deciding whether death penalty should be awarded or not, this Court has in each case realizing the irreversible nature of the sentence, pondered over the issue many times over. This Court has always kept in mind the caution sounded by the Constitution Bench in Bachan Singh that judges should never be bloodthirsty but has wherever necessary in the interest of society located the rarest of rare case and exercised the tougher option of death penalty. 81. In the nature of things, there can be no hard and fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. 81. In the nature of things, there can be no hard and fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case. 48. We have examined the present case following the ratio of aforesaid judgments and have prepared the balance sheet of aggravating and mitigating circumstances so as to strike just balance to arrive at a conclusion whether this case falls in the category of `rarest of the rare cases' or not. 49. The only mitigating circumstance in favour of the accused is that he is not a previous convict or professional killer but there are several aggravating circumstances borne out from the record which go against him. He, in fact, had entered the house of Jia Lal with premeditated mind to wipe out the entire family and virtually translated it to action also. Family of Jia Lal consisted of six souls; he, his wife-Kamlesh Kumari and four minor children. The accused left none of the family members unhurt, resultant thereto, three minor children of the age of 8, 7 and 4 years died in front of their parents. It is sheer luck of three persons which includes 4th minor child namely Gulshan who despite being assaulted badly could survive. If one notices the injuries on the person of Gulshan Kumar, he has received as many as three injures on his person and injury No.1 is an incised wound extended from the root of the left ear and going upwards. Even this injury on a small child could be sufficient to cause his death but God saved him. If one notices the injuries on the person of Gulshan Kumar, he has received as many as three injures on his person and injury No.1 is an incised wound extended from the root of the left ear and going upwards. Even this injury on a small child could be sufficient to cause his death but God saved him. It is sheer his luck. However, the injury on the person of Gulshan (minor) has resulted into nonfunctioning of his left ear as stated by his father-Jia Lal when he stepped into the witness box. He has been rendered permanently disabled because of this injury. 50. Injury suffered by Jia Lal is also very grievous in its nature and could prove fatal. It is on the forehead and has resulted into depressed fracture of the parietal bone. He was assaulted by the accused while sleeping on the cot and immediately got up, but subsequently fell unconscious and regained consciousness after several days in hospital. Accused had shown no sympathy towards him. It is only Kamlesh Kumari, who has received somewhat less serious injuries, although one of the injuries on her person is an incised wound and this so happened that after noticing the accused assaulting her husband, she made an attempt to leave the compound and in this process, the accused also made an attempt to assault her, but she could come out of the compound raising cries which attracted the residents staying nearby. From the entire sequence, it can comfortably be said that virtually the accused was bent upon eliminating the entire family. 51. The diabolic manner in which three tiny tots have been done to death is also apparent on record if one travels back to the injuries received by them and reproduced hereinabove in Para-15 of the judgment. In the case of hand, innocent minor children, unarmed person (Jia Lal) and helpless woman (Kamlesh Kumari) have been attacked in a brutal manner by the accused who was certainly in a dominating position when he entered the house of Jia Lal in wee hours of 20.05.2000 with a sharp edged cutting weapon (Dharati). The accused intentionally picked up this time so that nobody could notice them finishing the family of Jia Lal. This fact speaks volumes of the mind set of the accused and the amount of criminality traveling in his veins. 52. The accused intentionally picked up this time so that nobody could notice them finishing the family of Jia Lal. This fact speaks volumes of the mind set of the accused and the amount of criminality traveling in his veins. 52. Inhumane role of the accused is evident from the fact that he did not even spare the innocent children whose fault was nothing except having taken birth in the family of Jia Lal and that the accused being unhappy with the response of Jia Lal and Kamlesh Kumari for not involving themselves any more in the matrimonial affairs of the accused who could not keep his wife happy in his house took this drastic step of killing helpless children in a planned manner with a lethal weapon. The criminal intention was nothing more nothing less but it was to do away with the lives of the defence-less human beings and this un-wheels the brutality of the accused. The crime committed by him is horrendous and it would be too much to expect any amount of reformation on the part of the accused. Accurate punishment must depend upon inhuman role of the accused, the way crime is designed and the unprotected state of victims. This is how the Court should respond to the society's city for justice. 53. We are conscious of the fact that the accused is in custody for the last more than 13 years and even the appeal on hand has also taken reasonably good time in its disposal after being admitted in year 2010 but the aggravating circumstances discussed by us outweigh the mitigating circumstances tilting towards the accused. 54. As a sequel to the aforesaid discussion, we are of the considered view that the present case falls within the category of `rarest of rare cases' and the brutal act of the accused warrants nothing short of death sentence. We, thus, uphold the `death sentence' as already awarded by the learned Trial Court. 55. The sentence already awarded by the learned trial Court for the other charges is also upheld although it would be of no effect after death sentence being confirmed. 56. Resultantly, the appeal on hand stands dismissed on all counts. 57. Criminal Reference (Confirm. No.23/2009) sent to this Court in terms of Section 374 of the Code of Criminal Procedure Svt. 1989 (State Code) is confirmed and answered accordingly. 58. 56. Resultantly, the appeal on hand stands dismissed on all counts. 57. Criminal Reference (Confirm. No.23/2009) sent to this Court in terms of Section 374 of the Code of Criminal Procedure Svt. 1989 (State Code) is confirmed and answered accordingly. 58. Let the Trial Court which has recorded conviction and sentence of the accused be informed of the outcome of the present appeal/reference by Registrar Judicial of this wing of the High Court in terms of Section 425 of the Code of Criminal Procedure (State Code) so that the Court concerned may proceed further in terms of Section 381 of the Code of Criminal Procedure (State Code) for taking steps as may be necessary. 59. The Convict be also informed of the outcome of the instant Criminal Appeal/Criminal Reference through Jail Superintendent where he is presently lodged by providing him copy of the judgment without any delay. 60. Registrar Judicial of this wing to ensure compliance. 61. Before parting with the judgment, we place it on record that it is really a sad state of affairs that in a case of death reference, no assistance has been rendered to the Court from State's side. Learned Advocate General to take note of it.