JUDGMENT : Vinod Prasad, J. Insatiable nagging rapacious desire to accumulate property tormented the appellant Gania @ Ganeshwar Mahanta so irresistibly that he committed most scurrilous act of annihilating two of his close relatives in broad day light, for which crime he has been convicted and sentenced to death by the learned Sessions Judge, Jajpur in C.T.No. 232 of 2011, State of Orissa versus Ganeshwar Mahanta, by impugned judgment and order dated 13.1 2015.For confirmation of the death sentence, learned trial Judge has made a reference u/s 366(1) Cr.P.C., in short code, to this court and has submitted the essential record for the said purpose. Contrarily, to avert going to gallows and intense feeling of self preservation compelled the convict accused appellant to prefer Criminal Appeal no. 13 of 2015, Gania @ Ganeshwar Mahanta versus State Orissa, challenging his aforesaid conviction and sentence u/s 374(2) of the Code. Since both, the Reference and Criminal Appeal, arises out of self same judgment and both the lis are intertwined, they are being decided by this common judgment. 2. As is gathered from the oral and documentary evidences trotted out during the trial, the incident in question had its genesis in an agrarian property dispute amongst the two deceased and the appellant from the rival sides. A priory, it is discernible that one Hatiram Mahanta of village Rangita Nagar(also known as Madhapur) under police station Sukinda district Jajpur, had a son Dukhbandhu Mahanta(the first deceased in the concerned incident and herein after referred to as D1), who was the father of the informant Jaidev Mahanta/ PW3, Smt. Kanchan @ Tarini Mahanta (Second deceased in the incident in question and herein after referred to as D2), Prem Lata Mahanta/ PW7, Kajri Mahanta(not examined). Smt. Diptimayee Mahanta/PW1 is the maternal niece being daughter of sister of the informant. D2 was married to one Muralidhar Mahanta of village Natisahi (also known as Bandhagaon), P.S. Sukinda, district Jajpur whose brother is Laxman Mahanta. Appellant accused is the son of Laxman Mahanta and hence stands in relationship as nephew of D2. Prior to the incident in question Murlidhar Mahanta, husband of D2, had expired and hence D2, a widow, was left with her daughters including Saraswati Mahanta/PW9 to foster. Chintamani Mahanta/PW 8 is the brother –in-law of D2, being husband of her younger sister. Appellant accused is the son of Laxman Mahanta and hence stands in relationship as nephew of D2. Prior to the incident in question Murlidhar Mahanta, husband of D2, had expired and hence D2, a widow, was left with her daughters including Saraswati Mahanta/PW9 to foster. Chintamani Mahanta/PW 8 is the brother –in-law of D2, being husband of her younger sister. It is further discernible from the evidences that because of avarice and sinister intent to grab the entire real estate of the deceased D2, acrimony and hostile feelings existed between the families of D2 and that of the appellant and because of that, albeit, appellant had separated from rest of the family, but he, intermittently, hurled life threats to the entire family of D2 including her son-in-law. 3. 13.3.2011 was the day on which one of the daughters of D2 was to solemnise her nuptial knot for which her near relatives had conglomerated at D2’s house in village Natisahi including her father Dukhabandhu Mahanta/D1, and other relative witnesses examined during the trial. It is alleged that following day of the marriage i.e., 14.3.2011, Dukhabandhu Mahanta/D1 started return journey on his Atlas cycle at 10 a.m. and when he reached near the pond called Sologadia tank, in front of the house of one Indramani Mahanta, all of a sudden the appellant, armed with a Bhujali (a sharp cutting weapon) appeared at that spot and assaulted D1 on his back and neck with Bhujali. While he was recovering Bhujali from the neck, its handle came out and fell down on the ground. Sustaining fatal injury, which had substantially dissected his neck, D1, fell down on his cycle. In the process to ward off the blows D1 had also sustained injuries on his hand. Appellant, thereafter, tramped towards Natisahi with blood stained Bhujali. Quarter to an hour later (15 minutes) appellant came to the second spot, near a Mahua tree, where D2 was standing and assaulted her with Bhujali on her neck, face, forehead, and other parts of her body. Onlooker witnesses, including D2’s family members PWs 1, 2, 6, 7, 8, & 9, were accosted and threatened by the appellant that whosoever will endeavor to rescue D2 will also be murdered kept the witnesses at bay and desisted them from taking any life saving endeavour. Onlooker witnesses, including D2’s family members PWs 1, 2, 6, 7, 8, & 9, were accosted and threatened by the appellant that whosoever will endeavor to rescue D2 will also be murdered kept the witnesses at bay and desisted them from taking any life saving endeavour. Sustaining injuries D2 fell down on the ground supinely and succumbed instantaneously to the fatal injuries inflicted on her. Sarswati Mahanta/PW9 daughter of D2 along with one Sarita tried to help her mother but they were chased by the appellant to be annihilated, however they sprinted and took shelter in a house. Appellant thereafter retreated from the incident scene towards canal Bandha road along with Bhujali. PW9 and Sarita thereafter poured some water into D2’s mouth. 4. Gruesome murders of father and the sister was reported to the informant/PW3 by his niece Smt. Diptimayee Mahanta@ Sunei Mahanta/PW1 on phone. Arriving at the incident village, informant inspected both the dead bodies and spotted the injuries and then on his dictation FIR Ext.1 was scribed by Budhadev Behra/PW19 and after confirming the contents of the written script, that the informant signed on it and then alongwith PW2 came to the police station Sukinda at a distance of 8 KMs and lodged his report same day at 11.35 a.m. as P.S. Case no. 22 of 2011 u/s 302 I.P.C. arraigning the appellant as the sole perpetrator of double murders. 5. Baidya Narayan Bhoi Inspector –in-charge, police station Sukinda/PW22, registered the crime and prepared formal FIR Ext.13 and immediately initiated investigation into the offence, during course of which he interrogated the informant and witnesses, visited the spot, conducted inquest over both the cadavers and inked inquest memos Ext.2/3 and Ext. 1/3. Dead bodies Chalan of the corpses are Exts. 14 and 15.Wearing attires of both the deceased and some of the ornaments belonging to D2, exhibited as M.O.VI to M.O.XI, produced by the constables after their return from the hospital, were also seized vide seizure list Ext 10. PW22/I.O. also seized one Atlas cycle, half bag potatoes, one bag mudhi, an empty cup, a pair of plastic chappal, and other articles vide seizure list Ext. 11/2. Following day of the murder I.O. also seized sample and blood stained earth, collected by S.O.DSFL, Cuttack, (M.O.I to M.O.IV) vide Ext.16. PW22/I.O. also seized one Atlas cycle, half bag potatoes, one bag mudhi, an empty cup, a pair of plastic chappal, and other articles vide seizure list Ext. 11/2. Following day of the murder I.O. also seized sample and blood stained earth, collected by S.O.DSFL, Cuttack, (M.O.I to M.O.IV) vide Ext.16. On 28.3.2011 investigating Officer/ PW 22 received information that the appellant had surrendered in the court of J.M.F.C., Jajpur and hence I.O. took him on remand and during his interrogation, while making confessional statements, Ext.17,appellant made a disclosure statement that he had concealed Bhujali, the weapon of assault, near farm Bandha and thereafter led the police party and the witnesses to the concealing spot and gave recovery of Bhujali, M.O.XIV which was seized vide seizure list Ext. 8. Apparels of the accused appellant, M.O. XV to M.O.XVII, were also seized on 29.3.2011, vide seizure list Ext. 18. Accused appellant was medically examined on 30.3.2011 and same day he was produced before the Magistrate. One Hercules cycle of the appellant, M.O.XVIII, was seized the same day vide seizure list Ext. 19. Informant was given custody of seized articles vide Ext. 11/2 on 2.4.2011 vide Zimanama Ext.5. Post Mortem examination reports were received by the I.O./PW22 on 3.4.2011. A query was made by the I.O. from Dr. Preeti Nayak/PW5 on 5.4.2011 concerning seized weapon of assault as the crime weapon. For forensic science examinations and report, investigating Officer dispatched 17 items to SFSL Rasulgarh, BBSR through court. Spot map/ site plan prepared by the I.O. is Ext. 20. Marriage register of Ghatagaon Tarini temple was seized on 23.6.2011 vide seizure list 12/2 which was later on given in custody of Kulamani Mahakuda vide zimanama Ext. 21. Investigation was wrapped up on 21.7.2011, on which date the appellant was charge sheeted. 6. Autopsy examination on both the cadavers were performed by Dr. Preety Nayak/ PW5, M.O. Danagadi C.H.C. Jajpur, on 14.3.2011 at 5 p.m. On the corpse of deceased Kanchan/D2 doctor found following ante mortem injuries:- (i) of size 10 cm x 4 cm x 4 cm cut wound extending for(from) front of neck with laceration of muscles and profuse bleeding from vital neck vessels; (ii) of size 5 cm. x 1 cm x 1 cm. cut wound on upper part of mid Chin. (iii) 5 cm. x 1 cm. x 1 cm. cut wound on back of Rt. Pelvies (iv) 5 cm. x 1 cm x 1 cm. cut wound on upper part of mid Chin. (iii) 5 cm. x 1 cm. x 1 cm. cut wound on back of Rt. Pelvies (iv) 5 cm. x 1 cm. x 1 cm. cut wound on Rt. Maxilla with laceration on and around muscles. On the dead body of Dukhabandhu Mahanta/D1 doctor PW5 detected following ante mortem injuries:- (i) Incised cut wound of size 10 cm. x 5 cm. x 5 cm. on front of neck extending whole neck with injuries of surrounding nerves, vessels and laceration of surrounding muscles. (ii) Rt. Thumb and index fingers were cut and were totally detached from the Rt. hand. (iii) An incised cut wound of size 5 cm. x 1 cm x 1 cm. on the left parietal reason of mid scalp with laceration of scalp muscles. Cause of death of both the deceased was haemorrhagic shock from homicidal attack by sharp cutting weapon causing multiple bleeding injuries, which were inflicted some 12 hours ago. The injuries were sufficient to cause death in ordinary course of nature and specifically injury no.1 independently suffered by both the deceased by it-self were sufficient to cause death in ordinary course of nature. Ext. 6 & 7 are the post mortem examination reports of Kanchan Mahanta/D2 and Dukhabandhu Mahanta/D1. Attour doctor had opined that injury no. 2 must have been sustained by D1 while warding off the blows. Significantly doctor had also stated unambiguously that injuries on the neck of both the deceased were “so grievous and vital in nature which could not / would not have saved the person are (had) there been proper treatment given to the injured persons soon after the injuries are/were caused.” 7. Pertaining to the court proceedings, charge sheeting of the appellant resulted in registration of G.R. Case No. 178 of 2011 State versus Gania@ Ganeshwar Mahanta before committal court of J.M.F.C., Jajpur, who after observing due legal formalities contemplated u/s 207 of the Code, committed appellant’s case to the Sessions court and sent the appellant for trial before it on 4.8.11, where it was registered as C.T.(Sessions) No. 232 of 2011, State versus Gania @ Ganeshwar Mahanta. 8. 8. Sessions Judge/trial Judge charged the appellant with offences u/s 302/201 I.P.C. on 26.7.2012, and since the appellant abjured both the charges and claimed to be tried that Sessions trial procedure was resorted to for prosecuting him to establish framed charges. 9. In the trial, prosecution examined in all twenty two witnesses and relied upon equal number of documentary exhibits with eighteen material Exhibits. Diptiranjan Behra/PW2, Ugrasen Mahanta@ Fagu/PW4, are the two eye witnesses of murder of D1, whereas Smt. Diptimayee Mahanta/PW1, Diptiranjan Behera/PW2, Smt. Laxmi Mahanta/PW6, Premlata Mahanta/PW7, Chintamani Mahanta/PW8, Saraswati Mahanta/PW9, and Smt. Bhama Mohanta/ PW14 (who during trial turned hostile), are the eye witnesses of murder of D2. Jayadev Mahanta/PW3 is the informant and witness of inquests over both the cadavers and also witness of some recoveries. Dr. Preety Nayak/ PW5 is the autopsy doctor. Ananga Ch. Munda/PW10 and Somyaranjan Behura/ PW20 are the recovery witnesses of Bhujali, Where as Kartika Mahanta/ PW15, and Chaitanya Mahanta/ PW16 are the recovery witnesses of Cycle, potato , rice etc. Ujalamani Lenka/ PW 11 is the police constable who had carried both the corpses to the hospital and thereafter had deposited the cloths of both the deceased with the I.O. Duryodhan Mahanta/PW12, Jatia Nayak/ PW13, Amina Mahanta/ PW17, Biranchi Mahanta/ PW18, turned hostile and did not support the prosecution version, Budhadev Behra/ PW19 is the scribe of the FIR, and Bidya Narayan Bhoi/ PW22 Inspector-in-charge, P.S. Sukinda is the I.O. 10. Defence plea of the accused appellant is of denial and false implication because of property dispute but he had not examined any defence witness nor had tendered any documentary evidence. 11. Learned trial Judge/Sessions Judge, Jajpur, believed the prosecution story and held prosecution witnesses to be trustworthy, reliable and their depositions infallible and confidence inspiring, found the guilt of the appellant anointed to the hilt and hence convicted him for both the murders and sentenced him to death which judgment and order is now in question before us. 12. In above conspectus, when the appeal by the appellant and Reference came before us we found that the appellant has requested us to provide him with services of an advocate to contest his appeal. 12. In above conspectus, when the appeal by the appellant and Reference came before us we found that the appellant has requested us to provide him with services of an advocate to contest his appeal. Before appointing an amicus curie for him, we thought it fit to know from the appellant as to whether he would like to be provided with the services of an advocate of his choice and therefore directed, vide our order dated 16.2.2015, to produce the appellant before us. Since appellant had no choice we appointed Mrs. Saswat Pattnaik as her counsel, as amicus curie and have heard her at a great length in support of appellant’s appeal and against the death Reference. We have also heard Sri J. Katakia, learned Additional Government Advocate (AGA) in support of the Reference and against the appeal by the appellant. Besides, that we ourselves have attentively vetted through the entire trial court record and have scanned the evidences minutely. 13. Learned amicus curie launching scathing attack on the impugned judgment of conviction harangued that the prosecution has failed to establish immediate motive or causa causans for committing the crime by the appellant. Nothing has been deposed as to why the appellant will commit murders following day of the marriage when many of the relatives of both the deceased had gathered at the residence of D2. Nothing has been stated for such a weird conduct of the appellant and hence it is difficult to believe that the appellant is the culprit. Only close relations of both the deceased have come forward to lend credence to the prosecution story and all of them are interested, partisan, related and inimical witnesses and therefore, in absence of independent corroboration, prosecution version should not be believed to be true description regarding the murders. Weapon of assault has been changed and the same has been withheld from being exhibited during trial, which creates a doubt about the use of that weapon which lapse makes a serious inroad into the authenticity of the prosecution version, especially when cloths of the appellant were not teemed with blood as per expert report Ext.22. Another motive attributed to the appellant evidenced through PW7, another sister of D2 and daughter of D1, is an embellishment and after thought and must be discarded. Another motive attributed to the appellant evidenced through PW7, another sister of D2 and daughter of D1, is an embellishment and after thought and must be discarded. Otherwise also, after the marriage was over, there was no occasion for the appellant to commit double murders for the reason that he was not consulted in fixing up already solemnized marriage. No medical aid was made available to both the deceased indicating thereby that in all likelihood nobody had witnessed the incident. Weapon of assault being ordinary agricultural tool and found in every village house should not be taken to prove that the appellant had come prepared at the spot with murderous inclination and psyche to annihilate both the deceased. No family member had come forward to depose assault on D1 and both the witnesses qua murder of Dukhabandhu Mahanta/D1 are chance witnesses and their depositions do not inspire any confidence and whatever they have spelt out is too much of a coincidence to be attached with any credence. Investigation into the crime is perfunctory and incipient and cannot be trusted. Much of what was desired either was deliberately shunned or was investigated with a total remiss. It was further urged that according to Diptiranjan Behra/ PW2, the first incident of murder was preceded by “ exchanging hot words” and hence in any view of the matter both the murders will fall only within the ambit of section 304(I) I.P.C., as the possibility of D1 acting precipitously rankled by verbal duel, which had given rise to grave and sudden provocation to the appellant, cannot be ruled out completely and it is quite likely that the appellant, because of that provocation, had acted in haste losing self control and since the provocation lasted till D2 was assaulted, consequently conviction u/s 302 and sentence of life imprisonment both are unsustainable and should be set aside. Winding up her submissions, learned amicus curie incisively implored that the appellant’s appeal be allowed and he be acquitted of the charge and be set at liberty. Alternatively, it was submitted that in case the appeal is not allowed in toto, crime of the appellant be mollified and he be convicted only u/s 304 (I) I.P.C. and be suitably punished with normal sentence for that crime which is ten years RI with some fine. 14. Alternatively, it was submitted that in case the appeal is not allowed in toto, crime of the appellant be mollified and he be convicted only u/s 304 (I) I.P.C. and be suitably punished with normal sentence for that crime which is ten years RI with some fine. 14. As against the Reference dispatched by the learned trial court for confirmation of death sentence it was contested for the reason that on the own showing of the prosecution, the appellant had not acted in a gruesome and diabolical manner so as to shake one’s conscience and since the crime, though double murders, does not fall in the category of rarest of rare case, imposition of capital punishment was uncalled for. That learned trial Judge was predetermined to award death sentence is clear from the judgment itself wherein he has failed to record any sustainable reason for awarding maximum sentence and hence the Reference be rejected. 15. Refuting appellant’s contentions and arguing conversely, learned AGA submitted that the appellant has murdered two innocent persons-a widow and an aged person, when both of them were defenseless on a day when their families were rejoicing marriage of a maternal granddaughter and daughter. Without any provocation appellant chopped off neck of D1. Being close relative and the incident time being day time, identity of the appellant could not be questioned and it is because of this reason that defence has not challenged date, time, place of the incident and identity of the appellant. Consistent and corroborative medical report, eyewitnesses account and graphic description about both the murders coupled with established motive, all factors intertwined leaves no manner of doubt that the appellant is the sole perpetrator of the murders. Defence had failed to get elicited from any fact witness any damaging testimony which even remotely dents the prosecution version and creates suspicion in its veracity. Appellant’s guilt has been convincingly established and since he had committed murders of two hapless persons without any immediate motive, therefore, his crime falls in the category of rarest of rare cases and he has been rightly sentenced to death. If allowed to remain alive and permitted to come out of jail after 14 years period, the lives of surviving daughters of D2 will be in danger. If allowed to remain alive and permitted to come out of jail after 14 years period, the lives of surviving daughters of D2 will be in danger. Appellant had criminal proclivity and to curb his activity and avarice to grab immovable property falling in the share of the daughters of D2, it is essential to allow the Reference and approve the death penalty, urged learned AGA. Concluding it was submitted that the appellant’s appeal be dismissed and Reference by the learned trial Judge/ Sessions Judge be accepted and confirmed. 16. We have pondered over rival contentions in the light of material evidences on the record. For a clear and comprehensive analysis, while examining various facets of prosecution evidences, simultaneously we propose to deal with cross submissions and we proceed to follow that course. 17. From vetting and revisiting of prosecution evidences, it unambiguously evinces that prosecution side as well as the appellant stood in close relationships with each other. Appellant is the son of elder brother of demised husband of D2 and hence was the nephew of D2 and cousin brother of PW9. Both the sides resided in the same village and hence were co–villagers. Thus present is not an incident involving unknown assailant and consequently it could not be a case of mistaken identity. It is because of this reason that in no manner defence has challenged relationships and identity of the appellant. The inescapable forgone conclusion is that the appellant was very well known to the prosecution witnesses. Further it is apparent that witnesses, if present, had sufficient opportunity and light to identify the assailant as no challenge has been thrown to the date, time and place of the two incidents which occurred for enough time to facilitate identification of the culprit. Natural corollary of such admitted facts are that the veracity of eye witnesses cannot be questioned because of lack of opportunity to identify the accused especially when the incident, in two parts, occurred for sufficiently long time. Consequently the only core issue remains to be decided is as to whether it was the appellant who had committed double murders or he has been arraigned as accused because of enmity. 18. Prosecution to pin point the appellant as the singular culprit of double murders has tendered three sets of witnesses to the entire episode besides relying upon expert, investigatory and documentary evidences. 18. Prosecution to pin point the appellant as the singular culprit of double murders has tendered three sets of witnesses to the entire episode besides relying upon expert, investigatory and documentary evidences. First set consists of Jayadev Mahanta/informant/PW3 and Saraswati Mahanta/PW9, who both, besides describing other facts are the witnesses of motive harboured by the appellant which prompted him to commit double murders. Second set of witnesses have testified about the murder of D1 and they include Diptiranjan Behra/PW2 and Ugrasen Mahanta @ Fagu/ PW4, where as the third set consists of those witnesses who have divulged about the killing of D2 and they consists of Diptiranjan Behra/PW2, Smt. Laxmi Mahanta/PW6, Premlata Mahanta/PW7, Chintamani Mahanta/PW8 and Saraswati Mahanta/PW9. Smt. Bhama Mohanta/PW14 turned hostile and did not support the prosecution story of she being an eye witness to the murder of D2, albeit in her 161 Cr.P.C. statement she had narrated witnessing her murder. Expert evidence consists of doctor/PW5, who has proved both the post mortem reports qua both the deceased and lastly various steps of investigation have been detailed by the I.O./PW22. 19. Side stepping repetition, when eye witness accounts are revisited concerning motive, it becomes apparent that both the witnesses PW3 & PW9, who could be the best witnesses concerning motive to commit murders, being son/brother and daughter of the deceased D2, have categorically stated, without any inherent contradiction in their depositions or otherwise statement, that there existed landed property dispute between the families of the D2 and the accused appellant since prior to the incident. Informant/PW3 had evidenced that “Due to previous enmity, the accused murdered my father and sister”. Subsequently in para 8 he deposed that “There was landed dispute between my sister and the accused. The accused wanted to grab the landed property of my sister to which my father and sister protested for which the accused bore grudge against them and at last murdered them.” To the same effect is the statement of PW9, daughter of D2 when she evidenced that “Previously the accused used to quarrel and harass my mother. First Dukhabandhu, my maternal grandfather went ahead. Thereafter my mother went. I followed my mother because prior to that day the accused had given threatening to her and apprehending any mishalf (should be mishap) I went behind my mother. First Dukhabandhu, my maternal grandfather went ahead. Thereafter my mother went. I followed my mother because prior to that day the accused had given threatening to her and apprehending any mishalf (should be mishap) I went behind my mother. Prior to the date of incident, the accused had threatened the villagers not to interfere in his work and on that day when I went to interfere in the assault of the accused to my mother, the accused also threatened me.” To fill up the lacuna left by the prosecution the defence, to its detriment, during cross examination got it elicited that the dispute was concerning landed property. In her cross examination PW9 has stated that “The accused is my elder father’s son. He is separate from my family. There was previous enmity between our family and the family of accused for land dispute.” Making things further difficult for him the accused appellant, very surprisingly, informant/PW3 was not at all questioned regarding his testimony concerning existence of land dispute between both the factions and his such an evidence goes un-rebutted and unquestioned. Corroborated with the depositions of PW9, a child witness who lost her mother and who was never suggested that she is a tutored witness and that she had not witnessed the incident or that she was not present at the spot, it will be unwise to reject and discard the prosecution version of existence of land dispute between the widow and her father on one side and appellant and his family on the other with avaricious intent to grab widows immovable estate. This provided sufficiently strong motive for the appellant to commit murders as wealth is one of three recognized vices since time immemorial. Thus convincingly the motive attributed to the appellant to commit double murders seems to be genuine and real and has been clearly proved without admitting any other hypothesis. There is yet another aspect of the matter. It is too well settled trite law that motive is embedded in the mind of accused and it is difficult, if not impossible, to perceive it tangibly. Therefore, in case of eye witness account about the incident, motive relegates into background and it’s importance dissipates into insignificance. On this score we can benefittingly refer to some of the views expressed by the Hon’ble Apex Court. Therefore, in case of eye witness account about the incident, motive relegates into background and it’s importance dissipates into insignificance. On this score we can benefittingly refer to some of the views expressed by the Hon’ble Apex Court. In the case of Habib v. State of U.P.WITH Manuwa v. State of U.P., AIR 2013 SC 1764 it has been observed by the apex court as under:- “It is settled legal position that if there is direct trustworthy evidence of witnesses as to the commission of offence, motive part loses its significance. Therefore, if the genesis of the occurrence is proved, the ocular testimony of the witnesses could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. This legal position has been settled by this Court in its Judgment in Sheo Shankar Singh v. State of Jharkhand (2011) 3 SCC 654 , ( AIR 2011 SC 1403 ) and Bipin Kumar Mondal v. State of West Bengal (2010) 12 SCC 91 , ( AIR 2010 SC 3638 ).” In yet another decision Lokesh Shivakumar v. State of Karnataka, AIR 2012 SC 956 it has been held by the apex court as under:- “8. As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it. The submission, therefore, that the appellant had no motive for the commission of offence is not of any significance.” 20. At this juncture, when we advert to the criticism by learned amicus curie that no immediate causa causans has been disclosed by the prosecution and since the marriage was already solemnized there was no occasion for the appellant to indulge into double murder, we find the criticism trivial and unconvincing. At this juncture, when we advert to the criticism by learned amicus curie that no immediate causa causans has been disclosed by the prosecution and since the marriage was already solemnized there was no occasion for the appellant to indulge into double murder, we find the criticism trivial and unconvincing. It seems that probably because in the relationship of marital tie both the deceased garnered support of yet another family and a male person to stand by them, that this must have wrecked havoc with the ill intent of the appellant, which is clear from the fact that he was opposed to the marriage as he was not consulted, that he thought it fit to do away with both the deceased as they were his real stumbling block in achieving his temptation. It is recollected that D2 was a widow and, besides the bride, she had an infant daughter to foster and therefore for her support, her son-in-law would have been of immense help. Father D1, who was protector of D2, was made the first victim and thereafter D2 was annihilated. Yet another snipping that the second motive attributed through PW7 is an embellishment, after thought and facetious, we are of the view that the submission does not go down well in view of our above analysis. In any view since there are eye witnesses account of convincing nature well corroborated with medical evidence, we cannot discard the entire prosecution version on the question only of motive not being established or immediate motive could not be divulged. Our critical examination of evidences and other surrounding circumstances impels us to opine that appellant had sufficient motive to commit double murders and therefore we here by repel amicus curie’s castigation of prosecution case on this score. 21. Before adverting and delineating on the core issue regarding involvement of the appellant as the sole perpetrator of the crime we would like to register some other significant aspects which rarify appellant’s difficulties and have consequential bearing on the outcome of this appeal and the Reference dispatched to us. At the outset, carding of evidences and summation of the record does not reveal that any serious challenge was made by the accused to the genuineness of the FIR and its contents nor any material evidence was placed or any worthwhile submissions harangued to whittle down or stifle its corroborative value and doubt its genuineness. At the outset, carding of evidences and summation of the record does not reveal that any serious challenge was made by the accused to the genuineness of the FIR and its contents nor any material evidence was placed or any worthwhile submissions harangued to whittle down or stifle its corroborative value and doubt its genuineness. It will be ludicrous to opine that the FIR/Ext 3, is the outcome of fabrication and concoction in absence of any denunciatory submissions. Neither Jaydev Mahanta/PW3/informant nor Budhadev Behera/PW19, scribe of the FIR/ Ext.3, or the investigating officer were challenged on the said score. According to the informant he received a telephonic call from Diptimayee Mahanta/PW1, his maternal niece, at 11 a.m. and then he came to the murder scene and after inspecting two dead bodies that he got the FIR slated down through Budhadev Behra/PW19 and thereafter he came to the police station by 11.30 a.m. and lodged his FIR which was registered as P.S. case no. 22 of 2011, u/s 302 I.P.C. This time slot has not been questioned at all by the defence. Inevitably, legitimate inference that can be drawn, therefore, is that prosecution had not wasted any time in preparation of the FIR and lodging of the same and it had no time for consultation and deliberation to create a false story. No conceivable reason has been urged before us to discard the FIR or the narrations contained therein. Since defence remained unsuccessful in demolishing the evidence of the informant on this score, the only inescapable conclusion is that no false case was foisted against the appellant arraigning him as the sole culprit. Accused has nothing to offer on this important aspect and resultantly the FIR version is actual description of an irrefutable real incident. This certainly is a very cardinal favourable circumstance for the prosecution and catastrophic incriminating evidence against the appellant. At this stage dealing with amicus curiae’s submission that the weird conduct of the appellant remains unexplained we discard it for the reason that when a person labors under prehensile mental covetous agony, his cognitive faculties betray him to act eldritchly and his conduct is unimaginably unpredictable. 22. At this stage dealing with amicus curiae’s submission that the weird conduct of the appellant remains unexplained we discard it for the reason that when a person labors under prehensile mental covetous agony, his cognitive faculties betray him to act eldritchly and his conduct is unimaginably unpredictable. 22. Next exacerbating circumstance negating defence plea of innocence, which gives a definite fillip to the genuineness of the prosecution story, emanates from the defence, which, by not questioning, not even on preponderance of probability, date, time and place of the incident, has brought a ring of truth around the charges framed against the appellant. Coupled with unchallenged FIR version, not questioning these significant aspects, the defence allowed moments to ponder that there remains not even the slightest doubt on the veracity of the prosecution allegations which the defence has failed to dislodge. 23. Defence further aggravated its difficulties by not challenging trustworthiness of the various documentary evidences of vital importance such as site plan, inquest memos, recovery and various seizure memos including seizure of weapon of assault. Although a feeble attempt was made to challenge recovery of weapon at the instance of the appellant but that remains inchoate without any adverse ramification on the trustworthiness of the prosecution version. Without concrete cross examination, an adverse suggestion which has been refuted is a facetious plea to discard evidence relating to recovery of weapon at the instance of the accused at his disclosure statement which is admissible u/s 27 of The Evidence Act. 24. Now, embarking upon the case material to determine the complicity of the appellant in the crime, a meticulous examination of evidences and roving inquiry into this core aspect evinces that the appellant was named in the FIR as the sole perpetrator of the murders which was got registered at the police station without any delay soon after the incident. Complicity of the appellant was stated by the eye witnesses and it also surfaced immediately after the crime was committed, as on phone, informant was divulged appellant’s name as the miscreant who had committed double murders, by his maternal niece/PW1, who had no reason to falsely implicate the appellant and also had no time to cook up a story as by 11 a.m. she had already informed the informant. She being maternal grand-daughter of D1 and niece (Bhanji/sister’s daughter) of D2 would be the last person to spare the real assailant and foist a false case against the accused appellant. No suggestion regarding any enmity with the appellant was given to her. She had witnessed assault only on her aunt (mausi/mother’s sister) D2. She has corroborated date, time and place of the incident as 14.3.2011 at 10.30 a.m. at Nati sahi, near Mahua tree at a distance of 300 feet from her house. She has further stated:- “At the relevant time and place, I saw the accused Ganesh giving cut blows on Kanchan by means of Bhujali. The accused made Kanchan fall on the ground and gave blow on her back by means of Bhujali causing bleeding injury as a result of which Kanchan succumbed to the injury. I rushed to the spot hearing the screaming cry of Kanchan and saw the incident.” Cross examination of this witness is perfunctory and insidious having no deleterious effect on the truthfulness of her depositions. PW1 has stated that on hearing screaming of D2 she came out of her house and witnessed the incident from her courtyard. She could not muster courage to go near D2 because of being terrified. Other witness Indramani, who also saw the incident is also a resident of same vicinity. P.W.1 further clarified that no medical help was offered to D2 because, after infliction of murderous injuries, D2 had lost her life immediately. This witness has refuted defence suggestion that she was at her in-laws’ house and not at the spot and that she had not seen the incident. In our opinion because of marriage ceremony presence of PW1 in the village is very natural and therefore defense criticism is naff and inconsequential. In absence of any reason for her to nail–in the appellant, she cannot be adjudged as perjurer and from her convincing deposition complicity of appellant in the crime is anointed beyond doubt without any damaging and suspicious circumstances. Criticism by the appellant accused that prosecution has examined only related and partisan witnesses and therefore its story should be discarded, we find the assertion gibberish. It is too well settled trite law that deposition of a truthful and convincing witness cannot be thrown overboard merely because he is related. Criticism by the appellant accused that prosecution has examined only related and partisan witnesses and therefore its story should be discarded, we find the assertion gibberish. It is too well settled trite law that deposition of a truthful and convincing witness cannot be thrown overboard merely because he is related. Time and again this aspect has been succinctly laid down by the apex court and for a ready reference we refer some of those decisions. In Ranjit Singh and Ors. v. State of M. P., AIR 2011 SC 255 it has been held by the apex court as under:- “32.Undoubtedly, all the eye-witnesses including the injured witnesses are closely related to the deceased. Thus, in such a fact-situation, the law requires the court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime, and name somebody else because of enmity. The defence did not ask the injured witnesses as to how they received the injuries mentioned in the medical reports. (See: Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 , ( AIR 2008 SC 3259 ); Arjun Mahto v. State of Bihar, (2008) 15 SCC 604 , ( AIR 2008 SC 3270 ); and Akhtar and Ors. v. State of Uttaranchal, (2009) 13 SCC 722 , AIR 2009 SCC (Supp) 1676).” In Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280 it has been observed as under:- “21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh and Ors. v. State of Punjab, AIR 1953 SC 364 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Lehna v. State of Haryana, (2002) 3 SCC 76 ; and Rizan and Anr. (Vide: Dalip Singh and Ors. v. State of Punjab, AIR 1953 SC 364 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Lehna v. State of Haryana, (2002) 3 SCC 76 ; and Rizan and Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661 ) : ( AIR 2003 SC 976 ).” 25. Since we find all the fact witnesses creditworthy and their evidences not liable to be discarded and the same are unassailable, we find prosecution story to be truthful and convincing. Further we note that Diptiranjan Behera/PW2 and Ugrasen Mahanta @ Fagu/PW 4 both are independent witnesses who have supported the prosecution version convincingly. Argument by learned amicus curiae therefore is discarded. 26. PW1 is corroborated in all material and significant aspects regarding annihilation of D2 by Diptiranjan Behra/PW2, Smt. Laxmi Mahanta/PW6, Premlata Mahanta/PW7, Chintamani Mahanta/PW8 and Saraswati Mahanta/PW9. For convenience sake, jointly dealing with their evidences, it is discernible that all of them have stated same conformable evidences regarding date, time and place of the incident as that of PW1 without any apparent discrepancy. All of them have coalesced to testify that it was the appellant who had assaulted D2 with Bhujali causing her instantaneous death. At this juncture, dealing with submission of learned amicus curiae that D2 was not given any medical aid and how the witnesses themselves opined that she had expired and hence their presence at the spot is doubtful, we have no hesitation to repel the same outright. The submission is puerile and does not require any detailed examination. Perceived by senses one can immediately come to know as to whether there is life in a person or not? Secondly, it does not matter at all for establishing appellant’s crime as he has inflicted such injuries on D2 which, even with medical help, would not have saved her life as has been categorically opined by the doctor. Like PW1, rest of the witnesses, PWs 6 to 9, also had no reason to foist a false case against the appellant and no enmity has been suggested to them to arraign the appellant as the sole malefactor. Their evidences cannot be discarded merely because most of them are the relatives or known to D2. All the witnesses except PW2 were related to both the sides. Their evidences cannot be discarded merely because most of them are the relatives or known to D2. All the witnesses except PW2 were related to both the sides. Even during inquest examination on both the cadavers, informant, who is a witness of both the inquests, has stated that appellant had murdered his sister and father. Thus the complicity of the appellants came to light from the very inception of the incident and in absence of any challenge to all these confidence inspiring oral and documentary evidences, it will be puerile to hold otherwise. Convincingly established, therefore, is the fact that the incident of double murders did occur on 14.3.2011 at about 10.30 a.m. in village Natisahi near Sologadia tank and near a Mahua tree by the side of the village road with sharp edged weapon of which the appellant was sole real assailant. 27. Now, turning to the evidence of Diptiranjan Behura/PW 2, it surfaces that he is a witness to both the murders. After confirming the date, time and place of the incident regarding both the crimes, PW2 has deposed that his tractor was taking sand to village Raikia and he was following the tractor. Arriving at the place where D1 was murdered, this witness saw the appellant from a distance of 20 mtrs, armed with a Bhujali of size 1½ ft./2 ft. hurling hot words on an aged cyclist. Before that old man could utter a word, the accused (present appellant) dealt Bjhuali blows on the neck of the old man, which dissected his neck by half and the victim fell down on his cycle. While recollecting Bhujali, its handle came out and fell down on the ground. Thereafter the appellant left the place of the incident with blood stained Bhujali. Fifteen minutes thereafter while returning from the said road, PW2 also witnessed the assault on D2 by the appellant with the same blood stained Bhujali. Many male and female witnesses saw the assault and since the accused appellant was dissuading other villagers and hurling life threats, therefore, they could not muster enough courage to go nearby and rescue the lady. The victim D2 was crying for help, a girl aged about 10/12 years tried to give water and rescue the lady, but she was threatened and chased. The appellant thereafter, fled away from the spot towards Canal Bandh road with the Bhujali. The victim D2 was crying for help, a girl aged about 10/12 years tried to give water and rescue the lady, but she was threatened and chased. The appellant thereafter, fled away from the spot towards Canal Bandh road with the Bhujali. The girl thereafter came to the lady and poured water in her mouth and at that time the lady was lying on the ground supinely. PW 2 further deposed that he had accompanied the informant to the Police Station to lodge the FIR. This witness(Diptiranjan Behura/PW2) is also a signatory on the inquest memo. Cross-examination of this witness, in fact, has given a fillip to the prosecution version instead of castigating it as he has evidenced that the second spot of murder was at a distance of 400 mtrs. from the first sport. Subash Mahanta, a contractor, had placed the order for him to carry the sand which was required for the construction of a school and Sukadev Nayak was the driver of the tractor at the time of the incident. He further stated that he knew the accused prior to the incident, who was cutting and selling woods from the forest. This witness further stated that the incident had occurred by the side of the main road. He had stayed at the spot 10 to15 minutes and further confirming the prosecution version, he has deposed that the family members of D1 were not present when he was assaulted.PW2 has denied the defence suggestion that D1 and the informant were working under him as laborers. PW1 also deposed that both the incident had occurred at an interval of fifteen minutes. He further deposed that the informant had arrived within 20 minutes of the second murder. Police interrogated him on the following day of the incident. An insignificant discrepancy was got elicited from this witness that in the inquest memo instead of ‘Bhujali’ the word ‘Tangia’ was mentioned. He had witnessed the murder of D2 from a distance of 20 to 25 mtrs. PW2 flatly denied the defence suggestion that he had not witnessed the incident nor he was present at the spot and he has stated a mendacious version because D1 and the informant were working as laborers under him. 28. Turning to the evidence of Smt. Laxmi Mohanta/PW6 regarding murder of D2, she corroborated the earlier two witnesses in all material aspects of the matter. 28. Turning to the evidence of Smt. Laxmi Mohanta/PW6 regarding murder of D2, she corroborated the earlier two witnesses in all material aspects of the matter. She further stated that D2, in relation by courtesy was her ‘Mausi’ (mother’s sister). Hearing the screaming of D2 she came out of her house and had witnessed the appellant assaulting D2 with a Bhujali. She wanted to rescue D2, but because of the threat given by the appellant she could not venture for such a feat. Murdering D2 near a Mahua tree, by the side of an open field at a distance of 300 to 400 mtrs. from the house of D2, appellant had fled away from the incident spot. This witness failed to recollect number of blows given to D2 and by the time she had arrived near the victim, she was already dead. Nothing worthwhile besides the aforesaid facts has come out in her cross examination. 29. Turning to the evidence of Premlata Mohanta/PW 7, who had witnessed the incident from a distance of 100 mtrs. she has also corroborated the entire prosecution story as already mentioned. She is the daughter of D1 and sister of D2. Through her cross examination inter se relationship between the appellant and D2 and the motive for the crime was got proved. This witness has deposed that “prior to incident, relationship between accused and Kanchan was not good. On the date of the marriage of the daughter of Kanchan, accused was abusing Kanchan alleging that why Kanchan went for marriage without consulting the accused.” She has categorically stated that accused was giving cutting blows on D2 on her face, throat and middle back. The defence has miserably failed to dislodge the evidence of this witness as well. Chintamni Mohanta/PW 8 has stated the same very facts, which has already been mentioned by his predecessor witnesses regarding murder of D2. He has also deposed that the accused was sputtering threats to kill the daughter and son-in-law of D2 as well. After departure of the accused some water was administered in the mouth of D2. This witness has proved the relationship between D2 as she was the elder sister of his wife. Nothing adverse could be elicited from this witness so as to create any doubt in the authenticity of the prosecution version and culpability of the appellant in the crime. 30. This witness has proved the relationship between D2 as she was the elder sister of his wife. Nothing adverse could be elicited from this witness so as to create any doubt in the authenticity of the prosecution version and culpability of the appellant in the crime. 30. Like all other witnesses, Saraswarti Mohanta/PW9, who is the daughter of D2, has corroborated and authenticated the prosecution version and establish complicity of the appellant as the sole killer of her mother. She was 13 years of age at the time when she testified in the court. In her examination-in-chief, she has confirmed date, time and place of the incident and has further evidenced that before murdering her mother, accused-appellant had killed her maternal grandfather D1 and from that place he had arrived at the second spot to annihilate her mother with blood stained Bhujali. Confirming motive she also lend credence to the prosecution story by divulging that prior to murder the appellant used to quarrel and harass her mother. She further deposed that firstly her maternal grandfather had gone and thereafter her mother D2 had proceeded and she followed her mother because of threats hurled by the appellant which also included dissuading villagers not to interfere in his matter. She was also threatened when she tried to sooth her mother during the incident. She has proved inter se relationships between the appellant and her as the appellant being son of her elder father, who had separated from her family because of previous land dispute animosity. She has supported earlier witnesses by stating that D2 was murder at a distance of 400 mtrs. from her house and prior to murdering D2 appellant had informed D2 that he had already killed her father and he will kill her as well because of fear psychosis that she may lodge an FIR against him and immediately thereafter appellant had inflicted 4 to 5 Bhujali blows on the chest, face, neck and back of the deceased. She has seen a motorcyclist (PW2) at the spot. The only omission which has been elicited from her cross examination is that she had not stated to the Investigating Officer that prior to the incident, accused had threatened to kill her mother. She has further proved the prosecution version by stating that she along with Sarita had gone to her mother to administer water. The only omission which has been elicited from her cross examination is that she had not stated to the Investigating Officer that prior to the incident, accused had threatened to kill her mother. She has further proved the prosecution version by stating that she along with Sarita had gone to her mother to administer water. Her vivid and graphic description regarding motive, relationship and actual incident leaves no manner of doubt that, in fact, she had actually seen the incident and her narration contains a ring of truth. From her entire testimony no lacuna has surfaced to reject her testimony as a perjurer or as a got up witness. 31. Coming to the evidence regarding murder of D1, as already stated, Diptiranjan Behura/PW2 and Ugresan Mohanta/PW 4 have corroborated the entire prosecution version qua assault on D1 by the appellant by Bhujali on the date and time of the incident. PW4 has stated that at the relevant time he was carrying a bundle of dry leaves on a cycle to use as fire wood along with his two years old son sitting on the cycle frame. Hearing the screaming of D1 from a distance of 15/20 feet his attention was attracted towards the spot only to witness that from the sharp edge side of a 1’ length iron blade of a Bhujali the appellant was giving cut blows on the neck and back of D1, who in an endeavor to ward off the blows had also sustained injuries on his hand. Subsequently this witness had heard that the appellant had also committed murder of D2. On being cross examined PW4 has stated that D1 is the “Samudi” of his elder brother Chaitanya Mohanta/PW16. This witness has further stated that the accused was wearing a Lungi and half shirt at the time of the incident whereas the deceased D1 was wearing a shirt. Incident was informed by him to the ward member Khageswar Mohanta, who had reported the matter at the P.S. over phone. Defence in utter carelessness, got patched up the point gained by it by getting it elicited from this witness that at the time of the incident he did not know relationship between the deceased-Dinabandhu Mohanta(D1) and his elder brother as “Samudi” of each other. Defence in utter carelessness, got patched up the point gained by it by getting it elicited from this witness that at the time of the incident he did not know relationship between the deceased-Dinabandhu Mohanta(D1) and his elder brother as “Samudi” of each other. He categorically stated that he had not seen the incident of murder of D2 and that he, after a fortnight, was interrogated by the police. 32. Thus, from the evidence of these fact witnesses defence has not been able to make any in road into the correctness of the prosecution version and it miserably failed to demolish its truthful veracity and trustworthiness. Cross examination of all the witnesses is not only perfunctory and insidious but it had not surfaced any worthwhile evidence to reject trustworthiness of prosecution witnesses who all seems to be truthful and corroborative of each other. Since the defence remained unsuccessful in creating a doubt in the veracity of the prosecution case the obvious conclusion is that the prosecution has established complicity of the appellant as assailant of both the murders convincingly without any doubt. 33. From the evidence of Dr.Preety Nayak/PW5, the defence has not been able to stifle the prosecution version. This doctor had conducted both the autopsy examinations on 14.03.2011 at 5.00 P.M. and had noted the injuries sustained by both the deceased, as already mentioned above. Again defence brought it on record that “particularly injuries on the neck of both the deceased persons were so grievous and vital in nature which could not/would not have saved the person are there been proper treatment given to the injured persons soon after the injures are/were caused.” There could not have been a more careless cross examination by a defence advocate in a serious case of double murder like the present one. The evidence of the doctor unerringly establishes that the charge against the appellant will be squarely covered within the purview of section 302, IPC and in no way the same can be ameliorated to a lesser crime. Instead of nullifying and extricating the appellant from the ambit of murder, defence got it established. 34. No serious argument regarding the investigation has been urged before us by learned amicus curiae and rightly so. Instead of nullifying and extricating the appellant from the ambit of murder, defence got it established. 34. No serious argument regarding the investigation has been urged before us by learned amicus curiae and rightly so. Our examination of the evidence of the I.O. Baidya Narayan Bhoi/PW 22 does not reveal any significant lapse although, we are of the opinion that with more rectitude it would have been much more confidence inspiring. Expert has mentioned the same words while describing blood on the attires of deceased as well as of the accused, therefore no capital can be made out of mole on the said aspect. Otherwise also since eyewitnesses are reliable and creditworthy, trivial lapse on the part of the I.O. is not going to damage the prosecution case. A witness is to be judged from the truthfulness of his depositions and not on the premium of trivialities and small insipient discrepancies and exaggeration. Prosecution case cannot be discarded or thrown overboard because of small omissions, contradictions and embellishments which do not affect the main substratum of the prosecution story. 35. At this stage we would like to advert to the defence submissions that since prosecution has not produced the Bhujali, the weapon of assault during the trial and that appellants attires were stained only with sprinkling of blood and that the two witnesses of murder of D1 are chance witnesses, the prosecution case is liable to be discarded. We find such moldy criticism to be of no avail for the reasons firstly that there was total absence of any reason for witnesses to spare the real assailant and foist a false case against the appellant, secondly that prosecution case in its totality is confidence inspiring and witnesses are truthful and reliable, and thirdly that recovery of Bhujali could not be disproved. The weapon contained human blood and no explanation on this score has been offered by the defence. Expert report, therefore, also lend credence to the prosecution case. Prosecution would have done well to get weapon exhibited but it’s failure to produce it in court is of no consequence in the wake of confidence inspiring evidences of its witnesses. Further while launching assaults , appellant must have taken care not to get his attires completely soaked in blood and hence sprinkling of blood will not make any difference in the genuineness of the prosecution story. Further while launching assaults , appellant must have taken care not to get his attires completely soaked in blood and hence sprinkling of blood will not make any difference in the genuineness of the prosecution story. Investigation cannot be held to be inept and clumsy to demolish the reliability of the prosecution witnesses. All the aforesaid criticism, consequently are discarded. 36. Embarking upon the assertion that the appellant can be held to be guilty only u/s 304 (I) I.P.C. and not u/s 302 I.P.C. we find that the reason for the submission is only one line statement by PW2 in his examination-in-chief that “At the first spot, I saw the accused being armed with a Bhujali of size 1½ ft/2ft exchanging hot words with an old cyclist. I was at a distance of 20 mtrs from that old man. Before that old man spoke anything to the accused, who is now in the dock, the accused dealt bhujali blows at the neck of that old man as a result of which the neck of that old man was half cut and he fell down on his cycle while the wooden handle of the bhujali came out from the body of bhujali and fell on the ground.” On the strength that there was altercation between the accused and D1 that it is suggested that probably due to triadic altercation ensued between the accused and D 1 that the incident occurred when the accused acted excruciatingly and precipitously loosing self control. The submission, though in a flush, seemed to have much substance but on deeper examination is found to be inconsequential. No where it is got elicited that D1 entered into any kind of dialogue with the appellant. Conversely the evidence is that before D1 could speak he was assaulted on his neck by the appellant dissecting it into half. There does not seem to be any grave and sudden provocation given by D1. Appellant cannot be allowed to commit murder in the garb of such a provocation when there was none. Further, defence itself got it explained from the doctor that injury to the neck was imminently fatal and this brings the crime of the appellant well within the second clause of section 300 I.P.C. “of intentionally causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused”. Further, defence itself got it explained from the doctor that injury to the neck was imminently fatal and this brings the crime of the appellant well within the second clause of section 300 I.P.C. “of intentionally causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused”. Another fact exacerbating the crime is that the appellant had sufficient time to calm down but after some fifteen minutes he again repeated the same crime without any contrition and hence what is proved against him is that he is a recidivist. There was no grave and sudden provocation by D2 and hence there does not exist any palliative reason to soften the rigors of the offence and obviate appellant’s difficulties. Contention of learned amicus curiae therefore is repelled. 37. Thus on an overall analysis of all the pros and cons, we are of the opinion that the complicity of the appellant as the perpetrator of the crime has been too well anointed to absolve him of the crime committed by him and assoilzie his appeal favourably and, therefore, so far as conviction of the appellant is concerned, we have no doubt in our mind that the same is well merited and does not call for any interference by this Court. 38. Now coming to the sentence, the most serious aspect of the matter, as it is to be examined as to whether the death sentence awarded to the appellant should be confirmed and the Reference sent by the learned trial judge be allowed or it is to be concluded that the present is not a case falling in the category of ‘rarest of the rare’ cases and, therefore, the appellant should be conferred benefit of such a categorization by commuting his death sentence into life imprisonment. 39. In the past awarding of death sentence has been the subject matter of various judicial pronouncements mainly by the Apex Court which succinctly and lucidly brought forth aggravating and mitigating circumstances required to be seriously considered before awarding capital punishment. It will be worthwhile and but be appropriate to take stock of some of those decisions before we take up appellant’s submissions, as scrutiny of those will throw insight in the science of penology. 40. It will be worthwhile and but be appropriate to take stock of some of those decisions before we take up appellant’s submissions, as scrutiny of those will throw insight in the science of penology. 40. Delineating on the issue being discussed, in somewhat identical circumstances, it has been observed by a full bench of the apex court in Rajendra Prasad versus State of U.P.: AIR 1979 SC 916 , as under:- “109. Three deaths are regrettable, indeed, terrible. But it is no social solution to add one more life lost to the list. In this view, we are satisfied that the appellant has not received reasonable consideration on the question of the appropriate sentence. The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment. A family feud, an altercation, a sudden passion, although attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence.” The aforesaid decision came up for reconsideration before a larger bench in Bachan Singh versus State of Punjab, AIR 1980 SC 898 , and expressing the majority view, it has been observed by the apex court as under:- “200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and clauses 2(a), (b), (c), and (d) of the Indian penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and clauses 2(a), (b), (c), and (d) of the Indian penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances" : "Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :- (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed – (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. xx xx xx xx xx 204. Dr. Chitaley has suggested these mitigating factors : "Mitigating Circumstances:-In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:- (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. It the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." 41. The question of aggravating and mitigating circumstances and imposition of death penalty again attracted attention of the apex court in a subsequent decision in Machhi Singh versus State of Punjab, AIR 1983 SC 957 , wherein stamping with approval the guidelines enumerated in Banchan Singh (supra), a further caveat was added in the following terms:- “32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence in no case" doctrine are not far to seek. In the first place, The very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the antisocial or abhorrent nature of the crime, such as for instance :- I Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance. (i) When the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. for instance when – (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland. III Anti-social or socially abhorrent nature of the crime. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V Personality of victim of murder When the victim of murder is – (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity. (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.” Imposition of death penalty was again considered by the apex court in a recent decision Ram Naresh versus State of Chhatisgarh, AIR 2012 SC 1357 , wherein it has been laid down as under:- “39. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments -one being the 'aggravating circumstances' while the other being the 'mitigating circumstances'. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3), Cr. P.C. Aggravating Circumstances: (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43, Cr. P.C. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating Circumstances: (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. 40. While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles:- (1) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence. (2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.” Further in a much recent decision State of U.P. Versus Om Prakash, (2015) 4 SCC 467 the apex court approved the high court’s view of commuting death penalty into life sentence albeit the incident involved killing of four persons by gun fire as also by charring them to death. Thus numerology is no determinative criterion to spat death penalty. In case of Deepak Rai versus State of Bihar, (2013) 10 SCC 421 , it is held as follows:- “47. We are mindful of the principles laid down by this Court in Bachan Singh v. State, (1980) 2 SCC 684 , ( AIR 1980 SC 898 ) and affirmed in Macchi Singh v. State of Punjab, (1983) 3 SCC 470 , ( AIR 1983 SC 957 ) to be observed on the sentencing policy in determining the rarest of the rare crimes. In Bachan Singh case (supra) this Court has held as follows:- "While considering the question of sentence to be imposed for the offence of murder u/s. 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence." 48. In Machhi Singh case ( AIR 1983 SC 957 ) (supra), this Court has awarded death sentence to the accused who had methodically in a preplanned manner murdered seventeen persons of a village including men, women and children. In Machhi Singh case ( AIR 1983 SC 957 ) (supra), this Court has awarded death sentence to the accused who had methodically in a preplanned manner murdered seventeen persons of a village including men, women and children. Therein, this Court has besides outlining the five broad categories of rarest of rare cases held that in order to apply the guidelines of Bachan Singh case ( AIR 1980 SC 898 ) (supra) the following questions ought to be answered: "39. "(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" This Court has held that if the answer to the above is in affirmative, then death sentence is warranted. This Court has further observed that the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are few of the many factors which normally weigh in the mind of the Court while awarding death sentence in a case terming it as the "rarest of the rare" cases. While applying the test of rarest of the rare case, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes which shake the collective conscience of the society. 49. This Court in Rajesh Kumar v. State, (2011) 13 SCC 706 has noticed the observations and principles evolved in Bachan Singh case ( AIR 1980 SC 898 ) (supra) resonating through the international sentiments on death penalty, as follows:- "83. The ratio in Bachan Singh ( AIR 1980 SC 898 ) has received approval by the international legal community and has been very favourably referred to by David Pannick in Judicial Review of the Death Penalty: Duckworth (see pp. 104-05). Roger Hood and Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn. (Oxford) have also very much appreciated the Bachan Singh ratio (see p. 285). The concept of "rarest of rare" which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. 84. 104-05). Roger Hood and Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn. (Oxford) have also very much appreciated the Bachan Singh ratio (see p. 285). The concept of "rarest of rare" which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. 84. Reference in this connection may also be made to the right based approach in exercising discretion in death penalty as suggested by Edward Fitzgerald, the British Barrister. [Edward Fitzgerald: The Mitigating Exercise in Capital Cases in Death Penalty Conference (3-5 June), Barbados: Conference Papers and Recommendations.] It has been suggested therein that right approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty. It is argued that "the presence of any significant mitigating factor justifies exemption from the death penalty even in the most gruesome cases" and Fitzgerald argues: "Such a restrictive approach can be summarised as follows: The normal sentence should be life imprisonment. The death sentence should only be imposed instead of the life sentence in the 'rarest of rare' cases where the crime or crimes are of exceptional heinousness and the individual has no significant mitigation and is considered beyond reformation." (Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p. 285.) 85. Opposing mandatory death sentence, the United Nations in its interim report to the General Assembly in 2000 advanced the following opinion: "The proper application of human rights law-especially of its provision that 'no one shall be arbitrarily deprived of his life' and that 'no one shall be subjected to ... cruel, inhuman or degrading ... punishment'-requires weighing factors that will not be taken into account in the process of determining whether a defendant is guilty of committing a 'most serious crime'. As a result, these factors can only be taken into account in the context of individualised sentencing by the judiciary in death penalty cases .... The conclusion, in theory as well as in practice, was that respect for human rights can be reliably ensured in death penalty cases only if the judiciary engages in case-specific, individualised sentencing that accounts for all of the relevant factors.... The conclusion, in theory as well as in practice, was that respect for human rights can be reliably ensured in death penalty cases only if the judiciary engages in case-specific, individualised sentencing that accounts for all of the relevant factors.... It is clear, therefore, that in death penalty cases, individualised sentencing by the judiciary is required to prevent cruel, inhuman or degrading punishment and the arbitrary deprivation of life." (The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p. 281.) 50. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 : ( AIR 2012 SC 1357 ) : (2012 AIR SCW 1917), this Court has reflected upon the aforesaid decisions and culled out the principles as follows:- "76. The aforesaid judgments, primarily dissect these principles into two different compartments-one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) Cr.P.C. Aggravating circumstances- (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43, Cr.P.C. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though the prosecution has brought home the guilt of the accused. 77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles – (1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime." 42. There are many more decisions on the subject but, for the sake brevity, we desist from giving a graphic description of each one of it. However, we refer some of them as Mohd. Mannan versus State of Bihar: (2011) 5 SCC 317 ; Sandesh verssu State of Maharashtra: (2013) 2 SCC 479 , Sangeet versus State of Haryana: (2013) 2 SCC 452 . 43. Now examining the appeal at hand within the enunciated principles as above it is discernible that the appellant had acted under intense influence of rapacity for property in hot haste all of a sudden at the spur of the moment without any evidence as to any preplanning. The incident occurred without pre-meditation and pre planning. Appellant has no criminal background nor it is shown that he has such criminal proclivity as it has not been evidenced that he is involved in any other crime. The incident occurred without pre-meditation and pre planning. Appellant has no criminal background nor it is shown that he has such criminal proclivity as it has not been evidenced that he is involved in any other crime. He had not harmed to the daughter/PW9 when she had appeared during course of the incident. The incident was preceded by verbal utterance by the appellant and therefore it seems that initially he had no intention commit murder which developed immediately at the spur of the moment. Even though grievous injuries to both the deceased were caused but there is absence of convincing evidence that appellant acted cruelly and in a diabolical manner. The precursor of the incident was the hostility between both the families. Besides adjectives “extreme culpability”, “unprecedented crime scenario” “monstrous conduct” no other reason has been assigned by the learned trial court for slapping extreme penalty. In our society murders for avarice or greed for property with sharp weapons is not something which is uncommon and has many exemplers. Further only by counting numbers of the cadavers death penalty should not be awarded as in our view that is not a safe criterion to determine ‘rarest of rare case’ and probably is not a special reason contemplated u/s 354(3) Cr.P.C. The degree of gruesomeness depicted by the appellant is not of that intense degree which can jolt the conscience and revolt cognitive faculties. We have not been able to gather as to what was uncommon in the incident except that the date of execution was surreal. Are prolicides, fratricides, patricides, filicides uxoricides uncommon in society? “Magnitude of the crime considered in the light of feudatory relationship” and “assault on innocent, helpless persons”, albeit are gravely culpable and scurrilous act but not of the degree to imbibe it within the fold of “rarest of rare” cases. Moreover possibility of appellant’s reformation and penance in jail penitentiary and grief of contrition cannot be ruled out. No criminal activity as an under trial by the appellant or any un-damnumable conduct was brought before us to gad appellant’s life. It cannot be concluded that collective conscience of the society was shaken and that imprisonment of life sentence will not be just, proper and commensurate with appellant’s guilt and will be wholly insufficient. Cholerically appellant acted precipitously. During trial, prosecution has not elicited aggravating circumstances. Present was appellant’s first crime, though grave. It cannot be concluded that collective conscience of the society was shaken and that imprisonment of life sentence will not be just, proper and commensurate with appellant’s guilt and will be wholly insufficient. Cholerically appellant acted precipitously. During trial, prosecution has not elicited aggravating circumstances. Present was appellant’s first crime, though grave. He was in forties at the time of the incident. Learned trial court although heard the appellant on the question of sentence, but while dealing with that aspect has not recorded sufficient reasons to award death sentence. Double murders of close relatives by itself will not bring the crime within the ambit of “rarest of rare” case. Both the reasons that “defence plea that the appellant is innocent is not a mitigating circumstance at all” and “that this case is ‘rarest of the rare’ one indicating his extreme culpability in the unprecedented crime scenario” are not compelling reasons to take away appellant’s life. No doubt it is day light double murder incident where the appellant had committed murders of an old man and a lady on the following day on which the daughter of the lady D2 was got married. But while executing the crime, he has acted not in a diabolical and grotesque manner so as to bring his case within the category of rarest of the rare cases. To bring an incident within the ambit of the said category, the execution of the crime should be such, which must shake the conscience and the only conclusion from a prudent angle to emerge should be that but for death penalty, no other sentence will suffice to assuage the wounds of the victim. Unless such an opinion is arrived at death penalty should not be awarded. Appellant’s family had separated from the family of the deceased and it seems that the family pressure also acted as a stimuli for the appellant to commit such a heinous crime. Further, appellant can’t be considered as a hazardous person to the society. Property dispute since the days of Mohabharat had resulted in assault and counter assault. Desire to accumulate property is not unknown in the society and many a times, it robs the person of his humanism and saner thoughts, as has happened in the present case. Further, appellant can’t be considered as a hazardous person to the society. Property dispute since the days of Mohabharat had resulted in assault and counter assault. Desire to accumulate property is not unknown in the society and many a times, it robs the person of his humanism and saner thoughts, as has happened in the present case. It is the ghastliness of the crime and the manner of its diabolical execution which is the determinative factor to award death penalty to a convict and not to spare life. In our view, therefore, this is not a case where death penalty should be awarded to the appellant. At the same time we are of the view that the appellant should not be allowed to come out of prison on 14 years Rule because we are also conscious of the fact that there are daughters of D2, who had already lost their father earlier and who are still very young and their lives will be in jeopardy if on the 14 years Rule, the appellant is allowed to come out of jail. As has already been held by us, the learned trial judge has not given sufficient reason to award death penalty and therefore we hereby commute death sentence of the appellant to one of life imprisonment, but he should not be allowed to come out of jail prior to his completing 25 years of continuous incarceration within the jail boundary without parole and without benefit of set off. 44. Since by this judgment we are directing the appellant not to be released from jail prior to completion of 25 years of continuous incarceration inside jail premises without parole and benefit of set off, we consider it not necessary to pass a separate sentence u/s 201 I.P.C. 45. Thus, in view of our foregoing analysis, conviction of the appellant on both the charges u/s 302/201 I.P.C. are hereby confirmed and his appeal challenging his conviction stands dismissed but on the quantum of sentence it is allowed in part and his death sentence for the murder charge is commuted to life imprisonment with the rider that he shall not be released from jail prior to his completing 25 years of continuous incarceration in jail without parole and without benefit of set off. 46. Jail Criminal Appeal No. 13 of 2015, preferred by the appellant is partly allowed as above and DSREF NO. 46. Jail Criminal Appeal No. 13 of 2015, preferred by the appellant is partly allowed as above and DSREF NO. 1 of 2015 sent by the learned trial Judge is hereby rejected. 47. Let copy of the judgment be certified to the learned trial judge for its information. Raghubir Dash, J. : I agree. Ordered accordingly.