JUDGMENT : Vinit Kumar Mathur, J. “Life and death are divine act and this divine authority has been delegated to the Courts by law in exceptional circumstances. The authority delegated is very difficult and requires all cautions in its exercise. The first and foremost effort of a Court should be to continue the life till its arrival at natural end and the delegated divine authority should be exercised only after arriving at a conclusion about non-existence of any other option except awarding judicial death. The non-availability of other option than to award death should be shown by "special reasons for death sentence" as required under sub-section (3) of section 354 of Code of Criminal Procedure, 1973." 2. A Division Bench of this Court in State of Rajasthan v. Kalu Khan; D.B. Criminal Murder Reference No. 02/2013 with D.B. Criminal Jail Appeal No. 293/2013 observed as-above. With full faith in almighty we have examined facts of the present case to discharge our pious duty with all cautions. 3. The present death reference and the appeal arise out of the Judgment dated 01.03.2017 passed by learned Additional Sessions Judge, Parbatsar, District Nagaur in Sessions Case No. 47/2014 and are being disposed of by this common order since, they arise out of the same order. 4. Learned trial Court by the judgment aforesaid convicted the appellant Dwarka Prasad for the offence under Section 302 IPC and sentenced with the capital punishment. Besides the aforesaid conviction, learned trial Court also convicted the accused/appellant Dwraka Prasad for the offences under Sections 201 & 364 IPC. By the Criminal death reference filed by the State, the same is before us for confirmation. 5. Briefly stated, the facts of the case are that on 24.07.2014, complainant Pukhraj at Government Hospital Bajwas submitted a written report to SHO, Police Station Peelwa that on 24.07.2014 he along with his elder brother Chandmal went to nearby 'Dhanis' (dwelling houses in village) for some business purpose. At his home he left his wife Basanti, Son Jeev Raj, daughter Madhu (aged about 17 months) and his mother Sita Devi. At around 8:30 A.M. his cousin Hansraj telephonically informed Chandmal to reach home at the earliest. On reaching home, the complainant and Chandmal saw that his mother, his wife and other family members were weeping. At his home he left his wife Basanti, Son Jeev Raj, daughter Madhu (aged about 17 months) and his mother Sita Devi. At around 8:30 A.M. his cousin Hansraj telephonically informed Chandmal to reach home at the earliest. On reaching home, the complainant and Chandmal saw that his mother, his wife and other family members were weeping. Having been asked, his Bhabhi Mandsaur told him that Dwarka Prasad (Bassiwala) (of the same caste i.e. Khatik) who was working in the house of Chand Mal and was engaged in the work of finishing and polishing of Marble floor, after having a cup of tea with Sita Devi, took away baby Madhu from the lap of Sita Devi and ran towards the field. While taking away Madhu with him, the accused Dwarka Prasad also took iron axe with wooden stick. Having seen this, Mandsaur, Bhabhi of the complainant Pukhraj along with his mother Sita Devi and his sister-in-law(Devrani) Shivla ran before accused Dwarka Prasad and on reaching top of Nala adjoining to fields they all saw that Dwarka Prasad by blow of iron axe separated the head of baby Madhu from her body. When they shouted he ran before all of them by threatening to attack them also. While they were shouting, Hansraj who was present at home, reached the spot, in the mean time, the accused collected dried leaves and twigs from nearby field and after putting them on dead body of Madhu ignite fire to burn the dead body of Madhu (which got burnt) to destroy the evidence. In these circumstances, a First Information Report being No. 162/2014 for the offences under Sections 363, 302 & 201 IPC at P.S. Peelwa was registered and the investigation commenced. 6. After completion of investigation, a charge-sheet for the offences under Sections 302, 364 & 201 IPC was filed against the accused Dwarka Prasad. The charges were framed for the offences under Sections 302, 364 & 201 IPC. The accused having not pleaded guilty preferred trial. 7. To substantiate the charge, the prosecution examined as many as 17 witnesses and produced 22 documents during the trial. The accused was given opportunity to produce defence witnesses in his support but no witness was produced. Although, eight documents in defence were produced before learned trial Court. Thereafter statement of accused under Section 313 Cr.P.C., 1973 was recorded. 7. To substantiate the charge, the prosecution examined as many as 17 witnesses and produced 22 documents during the trial. The accused was given opportunity to produce defence witnesses in his support but no witness was produced. Although, eight documents in defence were produced before learned trial Court. Thereafter statement of accused under Section 313 Cr.P.C., 1973 was recorded. In his statement, the accused pleaded not guilty and stated that all the prosecution witnesses are false and stated that he has been falsely implicated in this case. 8. Heard learned counsel for the parties and also examined the record of the case. Pukhraj (PW-1) deposed that he and his brother Chandmal went for purchasing goats from nearby 'Dhanis' on motorcycle and Chandmal received a phone call from Hansraj to return home at the earliest. On reaching home, they were told that accused Dwarka Prasad after having a cup of tea with Sita Devi took away Madhu from the lap of Sita Devi alongwith an axe towards the field and after going into the Nala (a dried water channel for passing the rain water), he gave a blow with the axe on the neck of Madhu separating her head from the body instantaneously killing Madhu on the spot and thereafter tried to burn dead body of Madhu by dried leaves and twigs collected from nearby place. He further stated that the police reached on the spot and after preparing site plan and collecting evidence from the spot necessary legal formalities were completed. The dead body was handed over for the purpose of cremation after usual formalities. He also stated that there was no enmity with the accused Dwarka Prasad and Rs. 2,500/- were paid by his brother for the finishing and polishing work of Marble at his home. Sikander Khan (PW-2) is also the resident of the same vicinity deposed that on hearing hue and cry of the ladies in the nearby vicinity and on having been pointing out towards Nala he went towards Nala and saw that accused Durga Prasad was holding a lathi in one hand and an axe in another hand and the body of Madhu was lying in the Nala with the head separated from body and Dwarka Prasad was burning the dead body. He has further stated that Hemraj took away the lathi and axe from Dwarka Prasad and the body of Madhu was taken away from the fire. He was informed on reaching the spot that Dwarka Prasad has given an axe blow to Madhu which has separated her head from the body. Hemraj (PW-3) who is a resident of Gram Peeh stated that he knew accused Dwarka Prasad Khatik as he was doing the work of finishing and polishing of Marble in the house of his brother Chandmal. He narrated the incident on the same lines as was narrated in the statement of PW-2 Sikander. Hansraj (PW-4) deposed that on 24.07.2014 when he was at his residence at around 8.00-8.15 A.M. he heard noise of Sita Devi and Shivla and when he reached the spot Shivla told him that Madhu was being taken away by Dwarka Prasad along with an axe. When he along with Shivla Devi, Mandsaur, Kanhu and Sita Devi while following Dwarka Prasad reached the top of Nala they saw that Dwarka Prasad had separated the head from the body of Madhu. This incident was seen by Kanhu, Shivla, Sita Devi and Mandsaur along with this witness. He further submitted that Dwarka Prasad threatened them to go away otherwise they will also be cut down. He further submitted that on reaching home he called Hemraj and went towards the Nala again and saw that Dwarka Prasad was burning the body of Madhu with the dried leaves and twigs collected from nearby area. Hemraj took out the body of Madhu from fire and then Hemraj snatched the lathi and the axe from Dwarka Prasad. Sualal (PW-5) submitted that having heard hue and cry around 8:00-8:30 A.M. he went to the Nala nearby his field and saw that Dwarka Prasad was holding a lathi in his one hand and an axe in another hand and dead body of Madhu in a beheaded condition was being burnt by Dwarka Prasad. Sivla (PW-6) the wife of Chandmal who is the eye-witness to the incident submitted that at around 8:00 A.M. at her house when Dwarka Prasad was doing the work of finishing and polishing the Marble her mother Sita Devi came along with Madhu. At that time her Sister-in-law Mandsaur also came and she prepared tea for them. Sivla (PW-6) the wife of Chandmal who is the eye-witness to the incident submitted that at around 8:00 A.M. at her house when Dwarka Prasad was doing the work of finishing and polishing the Marble her mother Sita Devi came along with Madhu. At that time her Sister-in-law Mandsaur also came and she prepared tea for them. After consuming tea Dwarka Prasad took away Madhu from the lap of Smt. Sita Devi and went towards the fields. While going towards the fields Dwarka Prasad also took away an axe with wooden stick. While following Dwarka Prasad towards Nala, all of them reached on top of Nala. Dwarka Prasad was on the bottom of Nala with the axe in his hand and he gave axe blow to Madhu which separated her head from the body and all of them started shouting. Dwarka Prasad in the meantime was collecting dried leaves and twigs and then burnt the body of Madhu. She further submitted that Dwarka Prasad was doing the finishing and polishing work at their house by the machine and there was no enmity with any body in their family and there was no quarrel on any count with Dwarka Prasad. She submitted that the labour of Dwarka Prasad was paid a day before. She further submitted that police reached the spot within 15-20 minutes of the incident. She deposed that Dwarka Prasad is not suffering from any mental disorder/attack. Mandsaur (PW-7) (wife of Hem Raj), Ganpat (PW-8) and Basanti Devi (PW-10) (wife of Pukhraj) in their respective statements have categorically submitted the whole incident almost on the same lines as has been narrated by PW-6 Smt. Shivla. Chandmal (PW-9) who is brother of complainant Pukhraj, deposed that Dwarka Prasad was doing the work of polishing the marble at his house and he has paid Rs. 2500/- to him for the purpose of finishing and polishing the marble. Having called by Hansraj when they went home the entire incident was narrated to them. He deposed on the same lines as has been narrated by Pukhraj (PW-1). Dr. Ramchandra (PW-11), the Chairman of the Medical Board which conducted the postmortem on the dead body of Madhu has deposed that on 24.07.2014 at around 11:30 A.M. Madhu was brought with the head separated from the body. The dead body was in burnt condition and the head was separated before burning the body. Dr. Ramchandra (PW-11), the Chairman of the Medical Board which conducted the postmortem on the dead body of Madhu has deposed that on 24.07.2014 at around 11:30 A.M. Madhu was brought with the head separated from the body. The dead body was in burnt condition and the head was separated before burning the body. He further deposed that the cause of death was injury caused by sharp edged weapon. Sita Devi (PW-12), the mother of PW-1 Pukhraj and grand mother of the deceased Madhu, in her statement before the Court, repeated the incident without any deviation as has been stated by Shivla (PW-6). Suresh Chandra (PW-13) attested the sample who carried the same to FSL, Jodhpur. Gulzar (PW-14) is the attesting witness to the site plan has stated that he has stated the site plan prepared by the police on the spot of incident. Parasmal (PW-15) is also a witness who has attested the site plan and put his signatures on Site Plan (Ex.-P2), Sample Memo (Ex.-P4) and Arrest Memo (Ex.P-10). Jagdish Prasad (PW-16) is Malkhana In-charge has collected the samples and attested the memo. Prem Singh (PW-17) SHO, P.S. Uniara reached the spot after getting information and after having come to know the entire information has informed the higher officers and thereafter has conducted the investigation including collection of samples etc. 9. The accused while explaining the adverse evidence as per Section 313 Cr.P.C., 1973 denied the whole incident and deposed that he has been falsely implicated in this case. He further stated that Chandmal, Shivla, Pukhraj, Mandsaur, Sita Devi, Hansraj and Hemraj were trying to attack on him, therefore, he used Madhu as a shield due to which Madhu suffered fatal injuries and he also sustained injuries near his head. 10. The learned trial Court after evaluating the evidence on record found that there is ample evidence which clearly and categorically goes beyond doubt holding the accused-appellant guilty and the chain of events only suggest that capital punishment is the only appropriate punishment in the present case and hence has convicted the appellant with the capital punishment vide its judgment and order of sentence dated 01.03.2017. 11. Learned counsel for the accused-appellant submitted that there are contradictions in the statements of so called eyewitnesses. 11. Learned counsel for the accused-appellant submitted that there are contradictions in the statements of so called eyewitnesses. The actual incident as narrated in the Prosecution story had never happened and because the accused Dwarka Prasad was attacked, in order to save himself he took the shield of Madhu and in the scuffle, the axe blow beheaded Madhu. During the incident, accused Dwarka Prasad has also sustained injuries near his head, therefore, the entire prosecution story is based on a false and concocted version. All the eye-witnesses are near relatives of complainant and the deceased so they are interested witnesses, therefore, the entire incident is fake and fabricated story woven by the prosecution witnesses falsely implicating the accused Dwarka Prasad in this case. Nothing has come on record which show or suggest that there was any motive or animosity between the accused and the complainant. He further submits that present is the case which cannot come in the definition of "rarest of rare case". Therefore, learned trial Court grossly erred while awarding the capital punishment in the matter. Learned counsel further submits that possibility of deceased Madhu having sustained fatal injuries cannot be ruled out as Dwarka Prasad was being attacked by Hansraj, Chandmal, Shivla, Pukhraj, Mandsaur, Sita Devi and Hemraj. Therefore, in order to save himself has ended in Madhu receiving the fatal injuries. The present case is not the one in which the capital punishment should have been awarded as the appellant is not a hardcore criminal or there is any history or antecedent which show or suggest that he was involved in the criminal activities in the past. Learned counsel further submitted that the appellant is a married person having a wife and two children and possibilities of his reformation cannot be ruled out. Further there will be no adverse effect or impact on the society if the capital punishment is not awarded to the appellant. 12. On the other hand learned Public Prosecution vehemently opposed the arguments advanced by the learned counsel for the appellant. While supporting the judgment impugned he argued that the order passed by learned trial Court is perfectly justified in awarding the capital punishment as the evidence available on the record conclusively establish the guilt of the accused Dwarka Prasad. The chain of circumstances is perfectly linked. The factum of recovery is beyond the shadow of doubt. While supporting the judgment impugned he argued that the order passed by learned trial Court is perfectly justified in awarding the capital punishment as the evidence available on the record conclusively establish the guilt of the accused Dwarka Prasad. The chain of circumstances is perfectly linked. The factum of recovery is beyond the shadow of doubt. The arrest of accused Dwarka Prasad from the spot of incident and further the manner in which a 17 month old innocent girl having been butchered mercilessly is a cold blooded murder. The evidence, the statements and the chain of circumstances conclusively connect the appellant with the homicidal death of baby Madhu by the accused in pre-planned manner. The incident has left a shocking adverse impact in the minds of people living in the near vicinity of the place of incident and those who have witnessed the incident on 24.07.2014. Therefore, learned Public Prosecutor submits that the present case comes within the definition of rarest of rare case and, therefore, the only adequate punishment in the present case is capital punishment. 13. We have considered the arguments of learned counsel for the appellant, learned Public Prosecutor and have gone through the judgment as well as the record of the case very minutely. 14. So far as the appeal of the accused is concerned, while taking into consideration the statements recorded and the chain of the events, we are of the view that the contentions raised by the appellant has no force. More particularly when there is no material contradiction in the statements of eye-witnesses, the recovery effected from the place of occurrence and arrest of accused from the spot, conclusively goes to show that the conviction of the appellant in the present case is beyond shadow of doubt. 15. Learned counsel for the appellant, vehemently contended that the fatal injuries were received by Madhu while the accused Dwarka Prasad was trying to protect himself from the beatings given by Hansraj, Chandmal, Shivla, Pukhraj and others but the evidence on record shows and suggests that accused Dwarka Prasad took away Madhu and by stroke of axe separated her head from the body and was trying to burn the body in front of those eye-witnesses. Chain of Circumstances and the recovery categorically proves beyond any doubt that the accused Dwarka Prasad was rightly found to have committed offence under Section 302 IPC. Chain of Circumstances and the recovery categorically proves beyond any doubt that the accused Dwarka Prasad was rightly found to have committed offence under Section 302 IPC. Thus, in our considered opinion, the appeal preferred by the appellant has no merit and, therefore, the same is liable to be dismissed. 16. In the case of Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ), Hon'ble Supreme Court concluded that the real and abiding concern for the dignity of human life postulates resistance to take a life through law's instrumentality and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 17. In Machhi Singh & Ors. v. State of Punjab ( (1983) 3 SCC 470 ) : ( AIR 1983 SC 957 ), Hon'ble Apex Court provided five categories of murder within which the rarest of rare doctrine was to be practically applied. These five contingencies include the motive, the manner of commission of crime, the magnitude, the anti-social or abhorrent nature of the crime and the personality of the victim. 18. In Brajendrasingh v. State of Madhya Pradesh ( AIR 2012 SC 1552 ), the Apex Court while reiterating, the principles set out in Bachan Singh's ( AIR 1980 SC 898 ) and Ramnaresh's cases ( AIR 2012 SC 1357 ) (supra) added that the Court while examining "rarest of rare" case is required to see that whether any other sentence except death penalty would be inadequate in the circumstances existing. The circumstances so noticed are as under:- Aggravating Circumstances: 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, etc. by the accused with a prior record of conviction for capital felony. 2. The offence was committed while the offender was committing 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. 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 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., 1973 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. 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 prosecution has brought home the guilt of the accused. 8. As per the law laid down in the case of Brajendrasingh (supra) an important factor i.e. required to be taken into consideration is that whether any other circumstance except death penalty would be inadequate looking to the facts of the case concerned. 19. By keeping in mind The aggravating and mitigating circumstances noticed by Hon'ble Supreme Court in the case of Ramnaresh, AIR 2012 SC 1357 (supra) and Brajendrasingh, AIR 2012 SC 1552 (supra), this Court in State of Rajasthan v. Devilal (DB Criminal Murder Reference No. 01/2012), decided on 30th January, 2013, observed as under:- ''The aggravating and mitigating circumstances noticed above may be much more in different circumstances and whatever circumstances noticed by Hon'ble Supreme Court as above are inclusive. No straight jacket formula can be prescribed for application of the doctrine "rarest of rare" situation. The contingencies for application of the doctrine aforesaid may differ circumstances to circumstances and time to time, but in any event the court while considering the case for awarding severest punishment, which as a matter of fact akin to divine authority, is required to be extremely cautious with absolute vigilance about the factual circumstances, objective conditions and other relevant factors applicable to the society wherein the crime is committed. The court while considering the case for awarding capital punishment must understand that an exceptional authority must be exercised in most exceptional case, with utmost care, caution and only after arriving at the conclusion that no other punishment in any circumstance shall serve and satisfy the injury caused to the social order. The Indian society is a multilayer, multi dimensional, multi class, multi caste and multi cultural society with several virtues and several ills of every variant. An individual living in such society carries these virtues and ills with him. The courts cannot ignore all these factors while making necessary consideration for settling a severest sentence.'' 20. The Indian society is a multilayer, multi dimensional, multi class, multi caste and multi cultural society with several virtues and several ills of every variant. An individual living in such society carries these virtues and ills with him. The courts cannot ignore all these factors while making necessary consideration for settling a severest sentence.'' 20. Hon'ble Supreme Court in the case of Santosh Kumar Singh v. State through C.B.I.; 2011 (1) (SC) 108 held in the following terms. "38. we have considered the arguments of the learned Counsel and have also gone through the judgments relied upon by them in support of their respective cases. We think that the answer on the question of the sentence can be found in the judgment of the High Court itself. We quote from paragraph 3 of the sentencing part of the judgment delivered on 30th October, 2006: We have heard learned Counsel for the parties and have given our consideration to what has been placed before us. We need hardly say that sentencing is the most difficult part of a judgment and this indeed has been a case here. There is absolutely no doubt in our mind that what was required of Santosh Singh was exemplary behaviour being a son of a police officer and also a lawyer himself yet with a premeditated approach he continued to harass the victim for nearly two years and ultimately in spite of repeated warnings by the police and his undertakings to them went about committing a most ghastly act. The act itself sent ripples in the society and showed how insecure a citizen can get against this kind of a person. In the various judgments which have been referred to by counsel from both sides we find the principles laid down to the considered while deciding the question of sentence are best reported in Bachan Singh v. State of Punjab AIR 1980 SC 898 and Machhi Singh v. State of Punjab 1983 SC 211. These cases sum up the law on the subject of death penalty which we have kept in mind. Evaluating the circumstances in favour and against the convict which have already been enumerated above, we find that the aggravating circumstances referred to by the Additional Solicitor General for outweigh the circumstances which according to the counsel to the convict are mitigating circumstances, although we do not consider them to be so. Evaluating the circumstances in favour and against the convict which have already been enumerated above, we find that the aggravating circumstances referred to by the Additional Solicitor General for outweigh the circumstances which according to the counsel to the convict are mitigating circumstances, although we do not consider them to be so. We are thus of the opinion that for a crime of this sort which has been committed with premeditation and in a brutal manner the convict deserves no other sentence but death. The underlined words themselves give a hint as to the sentence that should be awarded in this case. Undoubtedly the sentencing part is a difficult one and often exercises the mind of the Court but where the option is between a life sentence and a death sentence, the options are indeed extremely limited and if the Court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded. This is the underlying philosophy behind 'the rarest of rare principle'. Furthermore, we see that the mitigating circumstances need to be taken into account, more particularly that the High Court has reversed a judgment of acquittal based on circumstantial evidence, the Appellant was a young man of 24 at the time of the incident and, after acquittal, had got married and was the father of a girl child. Undoubtedly, also the Appellant would have had time for reflection over the events of the last fifteen years, and to ponder over the predicament that he now faces, the reality that his father died a year after his conviction and the prospect of a dismal future for his young family. On the contrary, there is nothing to suggest that he would not be capable of reform. There are extremely aggravating circumstances as well in particular we notice the tendency of parents to be over indulgent to their progeny often resulting in the most horrendous of situations. These situations are exacerbated when an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two. The reality that such a class does exist is for all to see and is evidenced by regular and alarming incidents such as the present one. These situations are exacerbated when an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two. The reality that such a class does exist is for all to see and is evidenced by regular and alarming incidents such as the present one. Nevertheless, to our mind, the balance sheet tilts marginally in favour of the Appellant, and the ends of justice would be met if the sentence awarded to him is commuted from death to life imprisonment under Section 302 of the Indian Penal Code; the other part of the sentence being retained as it is with this modification in the sentence, the appeal is dismissed. 19. Hon'ble Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in JT 2008 (8) SC 27, while examining the question regarding imposition of sentence and option of capital sentence and life term sentence, held that extreme penalty should be imposed only in extreme cases. The death penalty ought not to be imposed save in rarest of rare cases when the alternative option is unquestionably foreclosed. A rarest of rare case or an exceptional case or an extreme case are required to be judged by the Court looking to the facts available. It is pertinent to note that in the case aforesaid Hon'ble Supreme Court also observed that question of death penalty is not free from subjective element and confirmation of death sentence or its commutation by the Court depends on a good deal of personal predilection of the judges constituting the Bench." 21. Taking into consideration the facts and circumstances of the present case in view of the law laid down by Hon'ble Supreme Court, we are of the considered opinion that interest of justice will be met if the capital punishment awarded by the learned trial Court vide Judgment dated 01.03.2017 be converted into imprisonment for life as in our considered opinion the present case does not fall in the category of rarest of rare case and it is also not the only punishment which can be awarded in the present case. 22. The facts available are sufficient to satisfy us that life imprisonment instead of death penalty would be adequate and sufficient in the present set of circumstances. 22. The facts available are sufficient to satisfy us that life imprisonment instead of death penalty would be adequate and sufficient in the present set of circumstances. The act of accused-appellant is no doubt very inhuman and gruesome but still in our opinion is not the one which is coming into the category of "rarest of rare case" warranting the punishment of the death sentence. 23. After going through the entire evidence, we are also of the view that present is not a case which falls within the aggravating circumstances mentioned in the case of Brajendra Singh v. State of Madhya Pradesh, rather it is a case in which mitigating circumstances too occurred and we find ourselves convinced that in the present case the mitigating circumstances are outweighing the aggravating circumstances to convert the capital punishment into sentence for life. 24. In entirety, we are of the view that there is no material available on record to suggest that the appellant is such a hardcore criminal that there are no chance of his reformation and if he is undergoing a sentence of imprisonment for life there will be adverse effect or impact on the society at large. The appellant-accused is a 28 years old man having a wife and two children and this being his first offence with no criminal background demands some leniency in awarding sentence, we are of the opinion that death sentence awarded by the trial Court shall be excessive and, therefore, that require appropriate modification. Thus, we are not inclined to confirm the death sentence awarded to the accused. 25. In view of whatever stated above, the death sentence of the accused as awarded by the trial Court under the judgment impugned is not confirmed. The appeal of the accused is dismissed to the extent that relates to conviction of the accused-appellant for the offence punishable under Section 302 IPC. However, the sentence imposed by the trial Court is modified and is substituted by the life term rigorous imprisonment.