JUDGMENT : Raghubir Dash, J. 1. Both the matters, i.e., the Death Sentence Reference and the Jail Criminal Appeal, arise out of the judgment dated 3.8.2015 passed by the learned Sessions Judge, Jajpur in C.T. No. 101 of 2010 arising out of G.R. Case No. 136 of 2010 in the file of J.M.F.C., Jajpur Road. The sole convict in the said C.T. Case has been found guilty of kidnapping the deceased (a minor) and killing him for the sake of giving human sacrifice, besides causing disappearance of evidence of commission of the offence of murder. He has been sentenced to death for the offence under Section 302 I.P.C. No separate sentence is passed for other offences. Learned Sessions Judge has submitted the case record for confirmation of the Death Sentence. On the other hand, the accused/convict, being aggrieved, has preferred the Jail Criminal Appeal challenging the order of conviction and sentence. 2. The F.I.R. story is that on 11.2.2010 night at about 2.00 A.M. the informant's eight year old son, namely, Srikanta Bage (the deceased) went missing from a place near Matha Chhak where one Opera show was in progress. To that effect a report was made in Sukinda Police Station. The informant was in search of his son but did not get any clue to trace him out. On 17.2.2010 at about 3.00 P.M. one Lingaraj Munda of village Ichhapur met the informant in Mangalpur Hat and told that he could show the informant his missing son. Thereafter, both of them proceeded to one 'Nala' near village Ichhapur. Near that 'Nala' there was a heap of earth which was pointed out by said Lingaraj telling the informant that his son would be available under the heap of earth. The informant dug out earth and at last found one bag buried under the earth. The headless dead body of informant's son, with his hands and feet tied, was found in the bag. Thereafter, the informant lodged F.I.R. in Sukinda Police Station. In course of investigation, the prosecution could unearth more facts which are narrated hereunder: "On 11.2.2010 one Opera was being staged near Matha Chhaka. The informant, his wife and their deceased son went to see the Opera. At about midnight the deceased went missing. The convict, a Tantrik, who was loitering near the place of Opera happened to locate the deceased. The informant, his wife and their deceased son went to see the Opera. At about midnight the deceased went missing. The convict, a Tantrik, who was loitering near the place of Opera happened to locate the deceased. Offering him chocolate, the convict took the deceased to his Matha at village Ichhapur. After performing rituals before the deity the convict made the child lie on the ground in front of his deity and sat on the child's chest. At that time the child cried loudly. Hearing the cry of a child at such odd hour, three persons, namely, Jitan (P.W. 4), Jaga @ Jagannath (P.W. 8) and Jatia (not examined as a witness) rushed to the Matha. They saw that the convict, who was sitting on the chest of the child, had gagged the child with the help of his left palm and slit the child's neck by means of a knife. Another person, namely, Suru Pruty (not examined as a witness), who was sleeping in her house which is very close to the Matha, heard the cry of a child and out of curiosity came out and happened to see the child being sacrificed. The convict happened to see the eye witnesses and asked them not to disclose before others what they saw in the Matha. Jatia and Jiten could escape but Jaga, being overawed by the convict, was obliged to follow certain instructions given by the convict. Jaga followed the convict upto the latter's dwelling house wherefrom they came back to the Matha with one crowbar and a spade. The convict dug a hole inside the Matha. He kept the severed head of the child inside an earthen pot and, putting it in the hole, covered it up. Thereafter, keeping the headless body in a polythene bag, the convict carried it upto a 'Nala' being accompanied by Jaga and at the 'Nala' the headless dead body was buried under the earth. Later on, Jatia divulged to his mother everything that had taken place at the Matha in that fateful night. His mother disclosed that fact to one Sabitri who, in turn, informed her husband Lingaraj. From Lingaraj the informant could come to know about the burial place of the headless dead body near the 'Nala'. Thereafter, F.I.R. was lodged." 3. In course of investigation, witnesses were examined. The headless body was recovered from under the ground near the 'Nala'. His mother disclosed that fact to one Sabitri who, in turn, informed her husband Lingaraj. From Lingaraj the informant could come to know about the burial place of the headless dead body near the 'Nala'. Thereafter, F.I.R. was lodged." 3. In course of investigation, witnesses were examined. The headless body was recovered from under the ground near the 'Nala'. Thereafter, with the help of a sniffer dog the severed head of the child was disinterred from inside the Matha. After the arrest of the convict and basing on his disclosure statement the weapon of offence, the wearing apparels of the convict and the implements used for digging earth were recovered from the place of concealment, i.e., convict's cattle shed. Post mortem of the dead body was conducted. The seized articles were sent for chemical examination. On completion of investigation, charge-sheet was submitted on 28.3.2010 under Sections 364/302/201 of I.P.C. The case was committed to the Court of Sessions on 13.4.2010. Since the convict was not in a position to engage his own counsel, the Sessions Court engaged a State Defence Counsel. Charges were framed on 12.9.2011. In course of trial, prosecution examined as many as 22 witnesses but the defence declined to adduce any evidence. 4. Out of the prosecution witnesses examined, P.Ws. 4 and 8 are eye-witnesses to the killing of the child; P.Ws. 9 and 16 are the deceased's parents; P.W. 3 is the person who first took the deceased's father to the 'Nala' side to show the place where the dead body was kept buried; P.W. 10 is the scribe of the F.I.R.; P.W. 21 is the Doctor who conducted post mortem and P.W. 22 is the investigating officer. P.Ws. 1 and 2 have adduced hearsay evidence. P.W. 5 is the then Tahasildar, Sukinda in whose presence the headless body of the deceased was disinterred from the side of the 'Nala' and the severed head from inside the Matha premises. P.Ws. 6, 7, 11, 12, 13, 14, 15, 19 and 20 are persons who were present at the time the head and/or body of the deceased child was disinterred. P.W. 18 is a Doctor who examined the convict medically. 5. Learned Sessions Judge found all the prosecution witnesses reliable. P.Ws. 6, 7, 11, 12, 13, 14, 15, 19 and 20 are persons who were present at the time the head and/or body of the deceased child was disinterred. P.W. 18 is a Doctor who examined the convict medically. 5. Learned Sessions Judge found all the prosecution witnesses reliable. Being of the opinion that whatever lacunae or infirmity that surfaced from the evidence adduced by the prosecution was inconsequential and insufficient to discard such testimony, learned Sessions Judge held the prosecution to have successfully proved its case, recorded order of conviction as aforestated, condemned him to death and then made a reference to this Court under Section 366(1) of Cr.P.C. 6. Being aggrieved, the convict, while remaining in Circle Jail, Cuttack, at Choudwar, has made the prisoner's petition basing on which Jail Criminal Appeal No. 57 of 2015 has been registered. Since the convict did not engage any counsel, Mrs. Saswat Patanaik has been appointed as amicus curiae. The Death Reference and the Jail Criminal Appeal have been heard analogously to be disposed of by a common judgment. 7. Learned Additional Government Advocate has advanced argument justifying the findings recorded by the learned Sessions Court as well as the order of conviction and sentence contending that the act of child-sacrifice executed by the convict in the manner described by the eye-witnesses comes within the category of "the rarest of rare" cases. Learned amicus curiae on the other hand advanced her argument supporting her contention that the so called eye-witnesses are not at all reliable or trustworthy and the convict is, therefore, entitled to an order of acquittal. As regards the Death Sentence she contends that the case does not come within the category of "rarest of rare" cases. At the outset it be mentioned that there is no dispute to the prosecution claim that the severed head and the trunk recovered in this case and sent for autopsy are that of informant's missing son and that the child met with a homicidal death. 8. Out of four eye witnesses to the killing of the child two have been examined as P.Ws. 4 and 8 who have supported the prosecution case, sticking to what they had stated before the Police in course of investigation. 8. Out of four eye witnesses to the killing of the child two have been examined as P.Ws. 4 and 8 who have supported the prosecution case, sticking to what they had stated before the Police in course of investigation. It appears, at the relevant time P.W. 4 was aged about 15 and P.W. 8 was aged about 13 (In the charge-sheet he is described as aged about 9). Though the trial Court has estimated his age at 13 he had opined that P.W. 8 is a child witness. Both of them are of tender age. One of them corroborates the other. They are not shown to have got any enmity or ill-feeling towards the convict. No contradiction could be brought out during their cross-examination. Therefore, the learned Additional Government Advocate submits that there is no reason as to why the two eye-witnesses should be disbelieved. Their testimony needs a very careful scrutiny. 9. Jitan (P.W. 4) and Jaga (P.W. 8) have stated that while both of them, along with their friend Jatia (not examined), were proceeding towards the place of Opera, on the way they heard the cry of a child coming from the convict's Matha and being curious they went to the Matha. P.W. 4 further says that when he reached at the Matha he saw that the convict was sitting on a child whose neck was slit. He has further stated that the convict had put one of his hands on the child's mouth and was holding a knife in the other hand. He has further stated that a Deepa (Lamp) was burning in front of the God inside the Matha. He has further stated that the convict, noticing their presence in the Matha, asked them to go to his house to bring a plastic gunny bag. He has further stated that he and his friends, in fact, went to the convict's house being accompanied by the convict himself. He has further stated that Jaga (P.W. 8) continued to give company to the convict but he and his friend Jatia went away. He further adds that in the next morning the convict, being in the company of Jaga (P.W. 8), met him and threatened him not to disclose to others what they had seen in the Matha. P.W. 8 has deposed to the effect that the occurrence took place in between 11.00 P.M. and 12.00 Midnight. He further adds that in the next morning the convict, being in the company of Jaga (P.W. 8), met him and threatened him not to disclose to others what they had seen in the Matha. P.W. 8 has deposed to the effect that the occurrence took place in between 11.00 P.M. and 12.00 Midnight. At the relevant time he, along with Jatia and Jitan (P.W. 4), was going to witness Opera and on their way they heard the cry of a child coming from inside the convict's Matha. Hearing such cry they all went to the Matha. Inside the Matha they found one lamp glowing and the convict then sitting on the chest of a child was cutting the neck of the child by means of a knife holding the same in his right hand and gagging the child's mouth with his left hand. The witness further says that finding them in the Matha, the convict told them not to disclose anything about the incident to anybody and then took them to his house. After they had reached at convict's house Jatia and Jitan went away but he stayed there. On being asked by the convict he came back to convict's Matha, holding a crowbar and a spade, where the convict dug earth and keeping the severed head of the child in an earthen pot buried the same under the ground. He has further stated that the convict then put the torso of the child inside a gunny bag and thereafter putting the bag containing the torso into another gunny bag shifted the same upto one canal embankment. He has further stated that as per the convict's instruction he went with the convict upto the canal embankment carrying a crowbar. There the convict buried the headless body by digging earth. The witness further states that after the dead body was concealed under the ground the convict called him to his house to stay there for the night. Both slept in convict's house for the rest part of the night. On the following morning, the convict applied thick cow-dung paste over the floor of the Matha to efface mark of blood patches. Then both of them went to meet Jatia and Jitan and having met them the convict told them not to disclose anything about the incident to anybody. The convict also offered Rs. On the following morning, the convict applied thick cow-dung paste over the floor of the Matha to efface mark of blood patches. Then both of them went to meet Jatia and Jitan and having met them the convict told them not to disclose anything about the incident to anybody. The convict also offered Rs. 150/- to them with instruction that they all should go to Bhubaneswar, which they did not accept. However, all the three assured that they would not disclose anything about the incident. But, on the request of Jatia and Jatin this witness narrated to them everything that had happened in the night after the letters had left the former's company. 10. Though P.W. 4 claims to be an eye witness, learned defence counsel does not appear to have taken any pain to subject the witness to a grilling cross-examination. As a result, his testimony goes almost unchallenged. Any infirmities or material omissions do not appear in his deposition. The only contradiction is that while deposing in Court he has stated that at the time of the incident one Deepa (Lamp) was burning at the spot but in his Section 161 Cr.P.C. statement he has not made such a statement. P.W. 8 has made some prevaricating statements at different stages on a material point which must be taken note of. As already stated, while adducing evidence in Court he has claimed to have seen the convict cutting the child's neck. But in his statements, recorded under Sections 161 and 164 Cr.P.C., he has not claimed to have seen the actual cutting of the neck. In his Section 161 Cr.P.C. statement he has stated that on his arrival at the spot he saw that the convict, having severed the head of a child was sitting on the chest of the child holding a knife in his right hand. In his Section 164 Cr.P.C. statement, he has stated the same thing in a slightly different manner, further adding that having seen the arrival of the eye-witnesses the convict confessed to have sacrificed the child. This confessional part is not there in his statement before the police or in his deposition made in the Court. Be that as it may, these contradictions/inconsistencies were not duly brought on record. 11. Another aspect of the prosecution case is that the occurrence night was a dark night. This confessional part is not there in his statement before the police or in his deposition made in the Court. Be that as it may, these contradictions/inconsistencies were not duly brought on record. 11. Another aspect of the prosecution case is that the occurrence night was a dark night. The eye-witnesses claim that the source of light available at the spot was one Deepa (Lamp). It is not brought on record if the light coming from the Deepa (Lamp) was sufficiently illuminating the spot, so as to enable the eyewitnesses to have a clear vision of whatever they have claimed to have seen. Since there is no cross-examination to that effect it may be presumed that the eye-witnesses were able to see all the facts about which they have stated in the Court. Another point in the prosecution case that needs attention is the distance between the road and the Matha. The eye witnesses claim that the Matha is about 10 to 12 cubits away from the road but the I.O. says that the distance is 50 meters. The Investigating Officer is supposed to have taken measurement of the distance while conducting investigation and, therefore, his unchallenged testimony with regard to the distance may be taken to be correct. If the distance is 50 meters then by all probabilities the eye-witnesses had taken some time to reach at the spot after they had heard the cry of a child coming from inside the Matha. They do not clarify as to whether the child was crying continuously or intermittently till they reached at the spot. What appears from their evidence is that they might have heard the cry only once. These are the highlighted soft points in the testimony of the eye witnesses. All these may be able to raise a doubt as to whether P.W. 4 or P.W. 8 had actually seen the cutting of the child's neck. But, if their presence at the spot, even soon thereafter, is believed, then all these discrepancies and deficiencies would not be able to make any difference. If the eye-witnesses are believed to have seen the convict in the Matha with the child's dead body lying there, then it would suffice to give rise to a presumption that it was the convict who had killed the child. 12. Therefore, the reliability and trustworthiness of P.Ws. If the eye-witnesses are believed to have seen the convict in the Matha with the child's dead body lying there, then it would suffice to give rise to a presumption that it was the convict who had killed the child. 12. Therefore, the reliability and trustworthiness of P.Ws. 4 and 8 is to be tested by way of a critical analysis of the evidence on record. On behalf of the convict it is argued that the post occurrence conduct of the eye witnesses does not appear to be quite natural and, therefore, they should not be relied on. It is true that a criminal Court should not expect a set of reaction from any eye witnesses on seeing an incident like murder. But, if the reaction demonstrated by such witnesses appears to be improbable or inconceivable, then such conduct must be taken into consideration while testing their reliability. It is claimed that P.Ws. 4 and 8 and one Jatia, all were going together to see one Opera and on their way they heard the cry of a child. P.W. 4 and his friend Jatia were within the age group of 14-15 years and P.W. 8 was still younger to them. They claim that all of them together went to the Matha and saw the ghastly crime. Though all of them are of tender age they did not show any reaction when they saw the convict sacrifice a child in the dead hour of the pitch dark night. On the other hand, the eye-witnesses seem to have ungrudgingly obliged to the command of the convict to do something to help him. They say that on being asked by the convict they all followed him up to his house for the purpose of getting one gunny bag. P.W. 8 even goes to the extent of helping the convict in concealing the head and the trunk at two different places and then unhesitatingly spent the rest part of the night sleeping with the convict in the latter's house. It is not claimed that the convict was a hardened criminal or that the villagers, for some reason or other, were considering him to be a dangerously awesome person. There is also no clear cut evidence from the eye witnesses that the convict, in any manner, compelled them to act according to his instruction. It is not claimed that the convict was a hardened criminal or that the villagers, for some reason or other, were considering him to be a dangerously awesome person. There is also no clear cut evidence from the eye witnesses that the convict, in any manner, compelled them to act according to his instruction. So, there is no reason as to why the eye witnesses should have behaved in that way. None of the witnesses, projected as eye witnesses, made any disclosure to anybody about the killing of the child for about 4 to 5 days. P.W. 8 has stated that the convict had merely asked them not to disclose anything about the incident to anybody. Nowhere in his deposition he has stated that the convict had threatened them of any dire consequences in case the incident would be disclosed by them. P.W. 4, of course, has stated in his deposition that on the day following the occurrence night the convict had given them threatening asking them not to disclose the incident before others but such threatening does not appear to have had any impact on them. Because, it is stated by P.W. 4 that some time after such a threatening was administered by the convict, P.W. 8 narrated before him and Jatia everything that had happened in that night after the letters had left the company of P.W. 8. It is also claimed that Jatia divulged everything to his mother. Under such circumstances, it is difficult to comprehend as to why the incident was not disclosed either to the police or to the victim's parents even though it is on record that on the following day the police, so also victim's parents, had came to their village. Under such circumstances, the delayed disclosure made by the eye witnesses makes their status as eye witnesses quite dubious. 13. P.W. 4 in his cross-examination has stated that after seeing the child-killing at the Matha he and his friend Jatia went to see the Opera. He has further stated that neither he nor Jatia had any discussion with any one about the incident while they were present at the place of Opera. As already stated, there is no evidence that in the occurrence night the eye witnesses were either frightened or threatened so that they had any compulsion not to disclose before others anything about the incident. As already stated, there is no evidence that in the occurrence night the eye witnesses were either frightened or threatened so that they had any compulsion not to disclose before others anything about the incident. Since it is on record that while the Opera was going on there was frequent announcement with the help of loudspeaker that a child had gone missing, the silence maintained by P.W. 4 and Jatia at the place of Opera appears to be quite unnatural. It is also a highly unnatural conduct on their part to go to the Opera show after having seen the ghastly murder of a child, besides their maintaining flawless equilibrium. Such unnatural conduct on their part gives rise to a suspicion as to whether they had either actually seen the commission of such a crime or soon after the commission of the crime they had reached at the post to see the convict with dead body of the victim with the head severed from the trunk. 14. The Investigating Officer got the statement of P.W. 8 recorded under Section 164Cr.P.C. P.W. 8 has stated in his cross-examination that the police had instructed him as to what he was to state before the Magistrate. This gives an impression that the Investigating Officer was trying to build up the prosecution case in a particular way. As regards the reliability of P.W. 8, the testimony of such a witness may not be relied upon without independent corroboration. 15. Besides P.Ws. 4, 8 and their friend Jatia, the prosecution claims that one Suru Pruty had also seen the incident. She is not examined as a witness. But her daughter has appeared as P.W. 1 who claims that after she returned home from the Opera she was told by her mother that the convict having sacrificed Srikanta Bage (the deceased) had come to her with a pot of human blood and asked her to drink the blood. In the absence of Suru Pruty, the evidence of P.W. 1 becomes hear-say in nature. Had Suru Pruty been examined as a witness, P.Ws. 4 and 8 could have got some corroboration. In the absence of Suru Pruty, the evidence of P.W. 1 becomes hear-say in nature. Had Suru Pruty been examined as a witness, P.Ws. 4 and 8 could have got some corroboration. But evidence of Suru Pruty would have also suffered from delayed disclosure inasmuch as neither she nor her daughter (P.W. 1) did make any disclosure to any one, not even to the deceased's parents who, on the day following the incident, had came to P.W. 1's village in search of the child. That the child's parents had come to their village to enquire about their missing child is admitted by P.W. 1 in her deposition. On her own saying, her mother, Suru Pruty, knew the child who was sacrificed by the convict. There is no evidence that either P.W. 1 or her mother was threatened by the convict. So, their complete silence for a long period is quite unnatural. 16. Though the prosecution claims that the wearing apparels of the convict, which he had allegedly put on at the time of the incident, were seized and sent for serological test, those were not found to be stained with blood. Since it is the prosecution case that sitting on the chest of the child the convict slit the child's neck with a sharp cutting weapon, the convict's wearing apparels were very likely to have got stained with blood. According to the prosecution, soon after the incident the convict put out his wearing apparels and kept them concealed in his cow-shed, thereby suggesting an inference that the convict had no occasion to wash his wearing apparels before those were seized by the police. Under such circumstances, absence of blood stain on his wearing apparels fails the prosecution to get corroboration to the testimony of the eye witnesses. No doubt, the witnesses are rustic villagers. They are not expected to give the exact time of different happenings that have close nexus with the kidnapping and killing of the child. On the other hand, neither the prosecution nor the defence did make sincere effort to elicit from the witnesses the time of such different happenings. Yet, it is considered necessary for the purpose of better analysis of the evidence on record to take into consideration the time factor that has appeared in the testimony of some of the material witnesses. On the other hand, neither the prosecution nor the defence did make sincere effort to elicit from the witnesses the time of such different happenings. Yet, it is considered necessary for the purpose of better analysis of the evidence on record to take into consideration the time factor that has appeared in the testimony of some of the material witnesses. P.W. 8 in his deposition has stated that the incident happened in between 11.00 P.M. and 12 midnight. But, in his Section 161 Cr.P.C. statement P.W. 8 has stated that at about 2.30 A.M. while he and his two friends were near the convict's Matha they heard the cry of a child. This contradictory statement was not confronted to the witness. P.W. 9, the mother of the deceased has deposed to the effect that her son was with her at the Opera till midnight. If the child went missing at about midnight then it is quite impossible that in between 11.00 P.M. and 12 midnight P.Ws. 4 and 8 saw the incident taking place in the Matha which is about 2 kilometers away from the place where the Opera show was going on. P.W. 3 has stated that the Matha is around 1 1/2 to 2 kilometers away from the place where the Yatra was going on. If the child parted with the company of his parents at about midnight and was kidnapped thereafter, it must have taken about one hour to reach at the Matha. Therefore, it cannot be believed that the child-sacrifice took place in between 11.00 P.M. and 12 midnight. On the other hand, if it is presumed that the child-sacrifice took place at least one hour after the kidnapping of the child then the probable time of the child-sacrifice was 1.00 A.M. or thereafter. It is quite doubtful that P.Ws. 4, 8 and their friend Jatia left their village in between 1.00 A.M. and 2.00 A.M. to see the Opera show which started at 10.00 P.M. (P.W. 9) or 11.00 P.M. (P.W. 4). The Matha is in village Ichhapur, the village of P.Ws. 4 and 8, which is 2 kilometers from the place of Opera. They would have taken about one hour to reach the place of Opera. Therefore, in the absence of any explanation from P.Ws. The Matha is in village Ichhapur, the village of P.Ws. 4 and 8, which is 2 kilometers from the place of Opera. They would have taken about one hour to reach the place of Opera. Therefore, in the absence of any explanation from P.Ws. 4 and 8 as to why they started for the Opera place at 1.00 A.M. or thereafter, it does not inspire confidence to believe that the eye witnesses were on their way to Opera when they heard the cry of the child. This is definitely a strong circumstance to view the testimony of the eye witnesses with suspicion. It is not in evidence as to how the child was kidnapped, how many persons were involved in the kidnapping of the child, what route was taken by the kidnappers to avoid possible detection of such kidnapping, whether the kidnapped child fully cooperated with the kidnappers or he was rendered incapable of putting up any resistance, and the like. Since in the fateful night the Opera show was underway, it is but natural to presume that all the roads/pathways leading to the place of Opera from different nearby villages were expected to be frequented by the people of the locality even at the most odd hour of the night. So, for the kidnappers it would not have been a cakewalk to take the child to the place of sacrifice covering a distance of about 2 kilometers without being noticed by any one. Since no one could know as to how the child was kidnapped it is quite natural to presume that the child was rendered either senseless or speechless. Under such circumstances, the prosecution story that the child's cry invited attention of the eye witnesses who were going to see Opera at about 2.00 A.M. is difficult to believe, particularly when there is no supporting evidence. 17. Another important aspect appearing in the testimony of P.W. 8 is that in the morning following the incident night police came to his house and took him to the police station where he was detained up to 1.00 P.M. The witness has further stated that during his stay at the police station he had seen the deceased's father at the police station. It is not clarified as to why he was taken to the police station on the day following the incident. It is not clarified as to why he was taken to the police station on the day following the incident. It is not elicited from him as to whether he was interrogated either on the missing of the child or his knowledge about or participation in the killing of the child. A valid presumption can be raised to the effect that on the day following the incident he was interrogated by the police and during such interrogation he had either disclosed something about the incident or suppressed everything that he knew about the incident. Either way, the prosecution case becomes murkier. If on the day following the incident he made disclosure to the police then the prosecution story that the facts about the killing of the child did not come to the notice of the police till F.I.R. was lodged on 17.02.2010 is a concoction. P.W. 8 in his cross-examination has stated that he had never disclosed anything about the incident to anybody including his friends, father, teachers and neighbours. According to him, first he stated the incident to the police. As per the Case Diary, P.W. 8 was interrogated by the police on 18.02.2010, about seven days after the incident. If he is to be believed, then he made the first disclosure about seven days after the incident. This delayed disclosure affects the reliability of the witness. His statement under Section 164 Cr.P.C. was recorded on 22.02.2010. Since the witness has stated in his cross-examination that the police had instructed him what he had to tell before the Magistrate, it makes highly doubtful as to whether the facts stated by him before the Magistrate is a true narration of all that had really taken place in that night. Since the police had taken P.W. 8 to the police station on the day following the incident it becomes quite probable that his participation in the commission of the crime or his association with the perpetrator of the crime was under police scanner. Under such circumstances, the evidence of P.W. 8 is not safe to be relied on. Once P.W. 8 is found to be unreliable, P.W. 4 is also to be treated as a witness of doubtful veracity. Upon consideration of all the facts and circumstances narrated above we do not find it safe to rely on P.Ws. 4 and 8. 18. Under such circumstances, the evidence of P.W. 8 is not safe to be relied on. Once P.W. 8 is found to be unreliable, P.W. 4 is also to be treated as a witness of doubtful veracity. Upon consideration of all the facts and circumstances narrated above we do not find it safe to rely on P.Ws. 4 and 8. 18. The post-occurrence conduct of P.W. 8 has already been narrated. Such conduct is quite astonishing. Having seen the convict killing a child the witness could not have ventured to go and sleep with the convict for the rest part of the night. Similarly, P.W. 4 having seen the murder of a child was not expected to go to enjoy the Opera show. Both of them are chance witness. That apart, P.W. 8, on his own saying stands on the footing of an accomplice. He assisted the convict in concealing the dead body and effacing marks of blood on the floor of the Matha. It is well settled that evidence of an accomplice needs corroboration for conviction. Evidence of such a witness is unworthy of credence unless it is found to have been corroborated in material particulars. Hereinafter, we shall examine whether P.Ws. 4 and 8 get such corroboration. Even though there are some other incriminating circumstances appearing against the convict those are not sufficient to raise a complete chain of circumstances to connect the crime with the convict. For example, one knife has been recovered at the instance of the convict. It is said to be the weapon of offence. When the knife was subjected to serological test it was found to be stained with human blood. The grouping of the blood found on the knife could not be ascertained. The convict, no doubt, failed to explain as to how the knife, recovered at his instance, was stained with human blood. However, the mere presence of human blood on a knife would not be sufficient to raise a presumption that the knife so recovered was the weapon of offence and the human blood stain found thereon was that of the deceased. Another incriminating circumstance is the exhumation of the child's severed head from the Matha. However, the mere presence of human blood on a knife would not be sufficient to raise a presumption that the knife so recovered was the weapon of offence and the human blood stain found thereon was that of the deceased. Another incriminating circumstance is the exhumation of the child's severed head from the Matha. But, mere recovery of the child's head from within the Matha compound, even if it is taken for granted that the convict was in control over the Matha premises, cannot raise a valid presumption that the convict had killed the child and buried the severed head inside the Matha. According to P.W. 8 and some other witnesses the Matha is accessible to all. Thus P.Ws. 4 and 8 do not get any corroboration. Having analyzed the evidence on record we find that P.Ws. 4 and 8, projected as eye witnesses are found to be unreliable. Their presence at the place of occurrence is not adequately explained. Their conduct subsequent to the incident is very much suspicious. They do not find independent corroboration. Therefore, it is not at all safe to place reliance on their testimony. The entire prosecution case stands on the strength of the evidence of P.Ws. 4 and 8. Since we have found these two witnesses to be not reliable, the order of conviction recorded by the learned Sessions Court is rendered unsustainable. 19. The learned Sessions Court was persuaded to believe the testimony of P.Ws. 4, 8 and 13 considering them to be child witnesses. P.Ws. 4 and 8 were above 12 years of age and P.W. 13 was aged about 23 years. So, they are not child witness. The eye witnesses are rather chance witnesses. Evidence of such witnesses requires a careful and cautious scrutiny. In Jarnail Singh and others v. State of Punjab reported in (2009) 9 SCC 719 the following settled principles on appreciation of the testimony of a chance witness have been reiterated. The evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence. If his presence at the place of incident is found to be doubtful his deposition has to be discarded. That apart, conduct of the chance witness, subsequent to the incident, may also be taken into consideration, particularly as to whether he informed anyone else about the incident. A chance witness must adequately explain his presence at the place of occurrence. If his presence at the place of incident is found to be doubtful his deposition has to be discarded. That apart, conduct of the chance witness, subsequent to the incident, may also be taken into consideration, particularly as to whether he informed anyone else about the incident. While appreciating the evidence of the chance witnesses, the learned Sessions Judge does not appear to have kept these basic principles in mind. He did not make any effort to make a sincere analysis of the evidence on record. He has started writing the judgment with a preconceived notion that the child sacrifice was made by the accused. Ultimately he convicted the accused and sentenced him to death. But, he did not make the minimum required home work to take stock of the entire facts appearing on record, along with the attending circumstances, to analyze the evidence. We would not have made such an observation if he had made sincere efforts in appreciating the evidence and then recorded the impugned order of conviction assigning his own reasons as to why the prosecution evidence he found to be reliable. What he did was a mere narration of the statements of P.Ws. 1 to 22 recorded during trial, thereby consuming 22 pages of his judgment and thereafter, reproducing some basic principles on appreciation of evidence here and there and then suddenly jumping to the conclusion that the prosecution evidence is quire reliable. Not only this. Learned Sessions Judge has exhibited gross irresponsibility and negligence while making appreciation of evidence. For example, he has treated P.W. 13 as an eye witness, perhaps for the reason that his name is Jatia. He failed to realise that Jatia, the eye witness, has not been brought to the witness box. P.W. 13 is Jatia Gagarai son of Biswanath Gagarai of village Mangalpur and he is aged about 23 years. He is a witness to the recovery of the dead body and a signatory to the inquest report. Nowhere in his deposition P.W. 13 has claimed to have seen the incident. Yet, the learned Sessions Judge has made observations at Paragraphs 31 and 33 of the impugned judgment treating P.W. 13 as an eye witness. Jatia, the eye witness who was in the company of P.Ws. Nowhere in his deposition P.W. 13 has claimed to have seen the incident. Yet, the learned Sessions Judge has made observations at Paragraphs 31 and 33 of the impugned judgment treating P.W. 13 as an eye witness. Jatia, the eye witness who was in the company of P.Ws. 4 and 8, is Jatia @ Mangal Goipai, son of Bira Goipai of village Ichhapur. His name appears at Sl. No. 16 of the charge-sheet and he has not been examined as a prosecution witness. In addition this, the Sessions Judge has made some other similar baseless observations in his judgment. In Para-33 of the judgment he has observed that recovery of the dead body of the child was made at the behest of the convict. It is not the case of the prosecution. Before the arrest of the convict the trunk of the deceased was disinterred from the place which was sufficiently indicated by the informant in his F.I.R. The severed head was also recovered before the arrest of the convict. The place of concealment of the severed head was ascertained with the help of a sniffer dog. Learned Sessions Judge ought to have remained alive to all these factual aspects over which there is no dispute. Furthermore, he has observed that the accused in a planned manner kidnapped the child from the Yatra by offering chocolate. There is no iota of evidence, either direct or circumstantial, showing that the convict himself had kidnapped the child by offering chocolate. Also in para-28 of his impugned judgment the learned Sessions Judge has misplaced reliance on the evidence of P.W. 1 and 2. P.W. 1 has stated that she heard from her mother that the accused, after sacrificing the deceased, came with a pot of human blood and forced her (P.W. 1's mother) to drink the same. Her mother is not examined in Court. In the absence of P.W. 1's mother's evidence, whatever P.W. 1 has stated is hear-say evidence and cannot be acted upon. If mother of P.W. 1 had deposed in the Court on facts which are in the evidence of P.W. 1, then the latter's evidence would have been used for the purpose of providing corroboration to the evidence of her mother to the extent that soon after the incident her mother had disclosed the matter to her. Thus evidence of P.W. 1 is quite useless. Thus evidence of P.W. 1 is quite useless. Similarly, most part of the evidence of P.W. 2, in the absence of the evidence of her son Jatia, is hear-say in nature. Her claim that she heard from her son that the convict sacrificed the child is hear-say in nature. The only admissible part of her evidence is that having heard about the incident from her son she had communicated it to one Sabitri. Learned Sessions Judge does not appear to have excluded the hear-say parts of the evidence of P.Ws. 1 and 2 while making appreciation of the evidence. 20. Coming to the sentencing process, we find the procedure adopted by the learned Sessions Judge to be very deplorable. Learned Sessions Judge ought to have proceeded to decide the question as to whether the case in hand falls within the category of "rarest of rare" cases only after affording an opportunity to the learned defence counsel to be heard on the question of quantum of sentence. But, in this case, before entering into hearing on the question of quantum of sentence the learned Sessions Judge, after finding that the prosecution was able to bring whom the charges against the convict, proceeded to decide whether the case at hand is in "rarest of rare" category. On 3.8.2015 the Trial Judge recorded that finding. Then he adjourned the case to the next date for hearing on the quantum of punishment. The ordering portion of the impugned judgment on the sentencing part does not disclose as to what the learned defence counsel submitted on the quantum of sentence. Before awarding death penalty learned Sessions Judge has made the following observations: "Considering the monstrous conduct of the convict and the aggravating circumstances of the crime, it is felt proper that sentence of imprisonment for life shall not be adequate. Once a balance sheet is drawn under the attending premises, the facts as depicted have convinced the Court about the uncommonness of the crime, leaving no other alternative than imposition of sentence of death. Once a balance sheet is drawn under the attending premises, the facts as depicted have convinced the Court about the uncommonness of the crime, leaving no other alternative than imposition of sentence of death. The magnitude of the crime being considered in the light of the fiduciary relationship with which the convict stood with the victim, an innocent and helpless persons, leaves no other substitute except the one considered on an overall global view that sentence of death in a case of this nature shall be just, appropriate and adequate to meet the ends of justice. The same shall also act as an eye opener that the law of the land is firm enough to impose extreme penalty of death against barbarous commissions of sins." Here also the learned Sessions Judge has failed to acquit himself of the onerous responsibility cast on a Court of Sessions by a series of judicial pronouncements made by the Hon'ble Apex Curt insisting on as to what factors are to be taken into consideration before awarding death penalty. A few of the landmark judgments are:- Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 . The following propositions emerging from Bachan Singh case were reiterated in Machhi Singh case:- "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." In Mulla and another v. State of U.P., (2010) 3 SCC the Hon'ble Apex Court quoted following observations on factors showing mitigating circumstances made in Panchhi v. State of U.P., (1998) 7 SCC 177 "(1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If 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. (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." Learned Sessions Judge has failed to take into consideration the above mentioned requirements of the law laid down by the Hon'ble Apex Court. A balance sheet of aggravating and mitigating circumstances has not been drawn by the learned Sessions Judge. He has totally ignored to consider whether there are any mitigating circumstances in the case at hand. In Bachan Singh case it is insisted upon that the Court must take into account the probability that the convict can be reformed and rehabilitated and the State must adduce evidence that the accused can under no circumstances be reformed and rehabilitated. The learned Sessions Judge does not appear to have kept himself abreast with the law laid down by the Hon'ble apex Court on the matter of sentencing an accused to death penalty. A Sessions Judge who is empowered to impose death penalty is expected to know such law. It is open for the Court to grant a death penalty. The learned Sessions Judge does not appear to have kept himself abreast with the law laid down by the Hon'ble apex Court on the matter of sentencing an accused to death penalty. A Sessions Judge who is empowered to impose death penalty is expected to know such law. It is open for the Court to grant a death penalty. But it is made absolutely clear by a series of judicial pronouncement that death penalty can be given in an extremely narrow set of cases which is signified by the phrase "the rarest of the rare". This being the settled position of law the Court while considering as to whether death penalty should be awarded in a given case must make sincere effort to find out whether the death penalty, which is an exception in sentencing, is justified. Here, in this case, the learned Sessions Judge has not taken the least pain to do the entire exercise. 21. Since evidence of P.Ws. 4 and 8 is unsafe to be relied on and there is absence of other evidences sufficient to bring home the charges beyond all reasonable doubts, we extend benefit of the doubt to the convict. Accordingly, we decline to confirm the death sentence, allow the Jail Criminal Appeal, annul the conviction and acquit the accused of all the charges. The accused be set at liberty at once, if not required to be detained in any other case. The articles seized vide Ext. 4, except the items at Sl. Nos. 1, 11, 32, 34 and 35, be returned to the accused on his executing zimanama. Item Nos. 1, 11, 32, 34 and 35 of Ext. 4 be destroyed.