JUDGMENT Hon’ble Om Prakash-VII, J.—Present reference under Section 366 Cr.P.C. and Capital Case (Appeal) under Section 374 (2) Cr.P.C. have arisen assailing judgment and order dated 18.5.2018 passed by Additional Sessions Judge/Special Judge, E.C. Act, Jaunpur in Session Trial No. 384 of 2012 (State of U.P. v. Manoj Kumar), under Section 302 I.P.C., Police Station Baksha, District Jaunpur convicting and sentencing accused appellant for the offence under Section 302 IPC with death punishment and with a fine of Rs. 20,000/- and in the event of non payment of fine he has to go undergo two years’ rigorous imprisonment. 2. Prosecution story in nutshell, as mentioned in the written report (Ext. Ka-1), are as follows: 3. On 3.10.2012, written report (Ext. Ka-1), was moved before the Superintendent of Police, Jaunpur by P.W.-1 Samarjeet, brother of deceased, mentioning therein that his sister Sushma Devi, deceased, aged about 26 years, was married on 10.5.2002 with accused appellant Manoj Kumar, resident of village Sarauli, Police Station Baksha, district Jaunpur. Manoj Kumar used to harass deceased and always asked for Motor Cycle in dowry. He also demanded additional dowry from deceased and used to beat her. Deceased, constantly complained this fact to the Informant and other family members but they persuaded her to stay there. Out of the aforesaid wedlock two daughters namely Madhu, aged about six years and Sandhya, aged about three years were also born. Accused appellant was habitual offender. He used to sell illegal arms and was convicted for that act for six months imprisonment. It is also mentioned that he was released before two months of the said incident. Deceased also advised accused appellant to leave illegal activities and earn livelihood by doing some job but accused appellant was causing cruelty to the deceased repeatedly. 4. In the intervening night of 26/27.9.2012 accused appellant Manoj Kumar, husband of deceased, after pouring kerosene over her body set ablaze her. When deceased came out from the room in burning condition her daughters Madhu and Sandhya also witnessed the incident. Mother of accused appellant and other family members blowout the fire. In the morning they informed the First Informant that his sister has got burnt and is on her death bed. Informant informed other relatives and reached the place of occurrence. Deceased was found in injured condition and she narrated all the facts to Informant. Mother of accused appellant and other family members blowout the fire. In the morning they informed the First Informant that his sister has got burnt and is on her death bed. Informant informed other relatives and reached the place of occurrence. Deceased was found in injured condition and she narrated all the facts to Informant. Thereafter she was taken to Police Outpost Dhania Mau and then to Primary Health Centre, Baksha. Information was also given to Police Station Baksha. On the advise of Doctor concerned Sushma Devi was taken to District Hospital, Jaunpur where she was admitted for treatment. It is also mentioned that no action was taken by police concerned and deceased was under treatment in precarious condition till lodging of First Information Report (FIR). Thus prayer was made to take legal action after lodging FIR against accused appellant. 5. On the basis of written report chik FIR (Ext. Ka-2) No. 105 of 2012 at crime No. 784 of 2012, under Section 498-A/326 IPC, Police Station Baksha, district Jaunpur was registered on 4.10.2012 at 14.20 hrs. on the basis of order passed by Superintendent of Police, Jaunpur against the accused appellant. G.D. entry was also made on the same day mentioning all details, as has been disclosed in Ext. Ka-2, which is on record. 6. Prosecution case is that when deceased was admitted for treatment on 27.9.2012 at 10.10 a.m. Doctor concerned medically examined her and prepared injury report (photo copy is on record) and endorsed following facts therein : “1.There are burn injuries. Ist to IIIrd degree over anterior neck, below chin of mendible. Chest B/L. Abdomen, both lower limbs, both upper limbs except head, posterior neck, B/L foot and sole. G.C. poor. Pulse 110/minute. B/P 100/70. Line of redness, blister, shringing of hair. Burn is about 90%. Opinion - All burn injuries caused by fire flame burn. Pt. is KUO & hospitalized. Duration is fresh. Police is informed. Magistrate is also informed.” 7. Dying declaration after giving the certificate by the doctor concerned about her mental and physical condition was recorded in the matter on 27.9.2012 which is Ext. Ka-15 on record. Burn is about 90%. Opinion - All burn injuries caused by fire flame burn. Pt. is KUO & hospitalized. Duration is fresh. Police is informed. Magistrate is also informed.” 7. Dying declaration after giving the certificate by the doctor concerned about her mental and physical condition was recorded in the matter on 27.9.2012 which is Ext. Ka-15 on record. The exact version of dying declaration in Hindi is quoted below as under: e`R;q iwoZ c;ku gsrq fpfdRlh; Áek.k i= ;g Áekf.kr fd;k tkrk gS fd Jherh lq"kek nsoh mez yxHkx 25 o"kZ iRuh eukst fuoklh xzke llSuh Fkkuk&cDlk ftyk&tkSuiqj tks ouZ okMZ esa csM uEcj&3 ij tyh gqbZ voLFkk esa HkrhZ gSA og iwjh gks'k ,oa gokl esa gS vkSj c;ku nsus ;ksX; gSA ^^c;ku Jherh lq"kek iRuh eukst dqekj fuoklh ljkSyh] Fkkuk cD'kk] mez yxHkx 25 o"kZ] is'kk x`g.kh] tkSuiqj us c;ku fd;k dh dy fnukad 26-9-2012 dks jkf= yxHkx 9 cts esjs ifr eukst dqekj 'kjkc ihdj vk;s vkSj eq>ls ekjihV djus yxsA vDlj 'kjkc ihdj eq>ls ekjihV o xkyh xykSt djrs gSaA tc 'kjkc ugha ih;s jgrs gSa rc Hkh eq>ls ekjihV djrs gSaA vkt fnukad 27-9-2012 dks Ákr% 4 cts mBdj iqu% esjs ifr eq>ls yM+us yxs rFkk fMCcs esa j[ks feV~Vh dk rsy esjs Åij fNM+d dj ekfpl rhyh ls vkx yxk fn,A eSa tyrh gqbZ fpYykdj ckgj Hkkxh rFkk dFkjh ls fyiV dj fdlh rjg vkx cq>kbZA vkx yxkdj esjk ifr rqjar ekSds ls ckgj Hkkx x;kA gYyk lqudj esjs lkl&llqj o tsB tsBku rFkk xzke ds yksx ekSds ij vk x,A esjk ifr vkx yxkus ds ckn vkx cq>kus ugha vk;kA c;ku lqudj rLnhd fd;kA** mijksDr c;ku ejht }kjk vius iwjs gks'k ,oa gokl esa esjs mifLFkfr esa fn;k x;kA ejht c;ku nsrs oDr iwjs gks'k ,ao gokl esa FkhA fu'kku & vaxwBk lq"kek gŒ viBuh; 27-9-2012 2-16 ihŒ,eŒ lhy & vkdfLed fpfdRlk vf/kdkjh oŒ 'kŒ mŒukŒ flag ftyk fpfdRlky; tkSuiqj gŒ viBuh; rglhy lnj] tkSuiqj ¼jes'k panz ;kno½ 27-9-2012 le; 2-15 ihŒ,eŒ “Medical Certificate with respect to Dying Declaration It is certified that Smt. Sushma Devi, aged around 37, W/o Manoj, R/o Sasaini village, PS Baksha, District Jaunpur, who is admitted in Burn Ward on bed No. 3 in burnt condition, is in full consciousness and able to give her statement. “Statement of Smt. Sushma, W/o Manoj Kumar, R/o Sarauli, PS Baksha, aged around 37, housewife, Jaunpur stated: Yesterday i.e. 26.9.2012 at around 9 pm, my husband came home drunk and started thrashing me. After consuming alcohol, he often thrashes me and uses filthy language. He thrashes me even when he is not drunk. On this 27.9.2012 at 4 am, after getting up, he again started fighting with me. He then sprinkled kerosene oil on me, which was in the can, and set me on fire with a matchstick. I, in burning state, rushed outdoors while raising alarm and somehow doused the fire by wrapping myself in Kathri. After setting me on fire, he immediately fled from the spot. On hearing the alarm, my father-in-law, mother-in-law, husband’s elder brother (Jeth) and other persons from the village came to the spot. After setting me on fire, my husband did not come to douse it. Statement heard and verified. The aforesaid statement was given in my presence by the patient in full consciousness. The patient was fully conscious while giving her statement. Thumb Impression Sd/- (Illegible) 27.09.2012 2:16 p.m. Seal: Emergency Medical Officer Va. Sha. U. Na. Singh District Hospital Jaunpur Sd/- (Illegible) Tahsil Sadar, Jaunpur (Ramesh Chandra Yadav) 27.01.2012 Time: 2:15 pm” (English translation by Court) 8. Deceased died during treatment on 6.10.2012. Information through Ext. Ka-4 was given to local police by doctor concerned and on the basis of order passed by S.D.M. concerned, P.W.-9 Ram Kailash Saroj, the then Tehsildar Shahganj, district Jaunpur was entrusted to conduct inquest proceedings. P.W.-9 alongwith S.I. Rakesh Kumar Singh reached Mortuaruy concerned alongwith relevant documents and prepared inquest report (Ext. Ka.-9) and other documents viz. Photo Nash, sample seal, challan nash, letter to C.M.O. and letter to R.I. Ext. Ka-10 to Ext. Ka-14. Dead body was handed over to Constable Vimlesh Pandey alongwith relevant documents to produce the same to Post-mortem House in sealed condition. Post-mortem on the body of deceased was conducted on 6.10.2012 at 4 p.m. 9. In general examination she was found to be aged about 26 years. She died on 6.10.2012 at 5.30 a.m. and was average body built. Rigor mortis was present all over the body. Eyes were closed. Membranes and brain were found congested. 10. Following ante-mortem injuries were found on the body of deceased : “Burn injuries all over body except face and sole. She died on 6.10.2012 at 5.30 a.m. and was average body built. Rigor mortis was present all over the body. Eyes were closed. Membranes and brain were found congested. 10. Following ante-mortem injuries were found on the body of deceased : “Burn injuries all over body except face and sole. Degree of burn injuries was 85% to 90%. Burn injuries which were treated in hospital was in healing process. Escher was present and green colour pus found on the injuries.” 11. In the internal examination membrane, brain and pleura were congested. Bronchial tube congested. Both the lungs were pale and on cut pneumonic was found. Right heart was half full and left was empty. Fecal matter and gases were found present in small and large intestine. Liquid material was also found in the stomach. Pancreas, spleen and kidney were also pale. Bladder was full. In the opinion of Doctor, cause of death was due to septicaemia and shock as a result of ante-mortem burn injuries. 12. Post-mortem report prepared by the Doctor concerned (Ext. Ka-5) was returned to police concerned alongwith relevant documents. 13. It also appears that case was converted into offence under Section 302 IPC and investigation was completed after recording statement of witnesses under Section 161 Cr.P.C. by P.W.-8. Investigating Officer has also prepared site plan Ext. Ka-8 visiting the place of occurrence. Charge-sheet was submitted in the matter after concluding investigation as Ext.Ka-7. 14. Cognizance was taken. Case being exclusively triable by Sessions Court was committed to the Court of Sessions. 15. Accused appeared before Court and prosecution opened its case describing entire evidence collected during investigation and proposed to be adduced against accused appellant during trial. Charge-sheet was submitted in the matter after concluding investigation as Ext.Ka-7. 14. Cognizance was taken. Case being exclusively triable by Sessions Court was committed to the Court of Sessions. 15. Accused appeared before Court and prosecution opened its case describing entire evidence collected during investigation and proposed to be adduced against accused appellant during trial. Learned Additional District & Sessions Judge framed charge on 7.1.2013 against accused appellant for the offence under Section 498-A, 302 IPC and Section 3/4 D. P. Act, which reads in Hindi as under: ^^eSa chŒdsŒ ikaMs;] vij l= U;k;kèkh'k@fo'ks"k U;k;k/kh'k ¼bŒlhŒ ,DV½ tkSuiqjA vki eukst dqekj dks fuEu vkjksiksa ls vkjksfir djrk gwa %& ÁFke & ;g dh fnukad 26@27-09-2012 dks le; vkne rgjhj 11 rFkk mlds iwoZ fofHkUu le; ij cgn LFkku xzke ljkSyh cgn xzke /kfu;k eÅ varxZr Fkkuk cD'kk ftyk tkSuiqj esa vki us oknh eqdnek lejthr dh cgu lq"kek nsoh dks ngst ds fy, Øwjrk iw.kZ O;ogkj djrs gq, 'kkjhfjd ,oa ekufld :i ls ÁrkfM+r fd;kA rn}kjk vki us ,slk vijk/k dkfjr fd;k tks HkkŒnŒlaŒ dh /kkjk 498&, ds v/khu naMuh; gS ,oa U;k;ky; ds ÁlaKku esa gSA f}rh; & ;g fd mijksDr fnukad] le; o LFkku ij vkius oknh eqdnek fd cgu lq"kek nsoh dks vius lkekU; vk'k; fd iwfrZ esa feV~Vh dk rsy fNM+d dj e`R;qdkfjr djds gR;k fd;k] tks HkkŒnŒlaŒ fd /kkjk 302 ds varxZr naMuh; gS rFkk bu U;k;ky; ds ÁlaKku esa gSA r`rh; & ;g fd mijksDr fnukad rFkk blds iwoZ fofHkUu frfFk ,oa le; ij vki yksxksa us oknh eqdnek fd lq"kek nsoh ls ngst esa vfrfjDr :i;k ,oa ,d eksVj lkbfdy fd ekax fd;sA rn~}kjk vki us ,slk vijk/k dkfjr fd;k tks ngst Áfr"ksèk vf/kfu;e fd /kkjk 3@4 ds v/khu naMuh; gS ,oa bl U;k;ky; ds ÁlaKku esa gSA ,rn~}kjk eSa funsZ'k nsrk gwa fd] vki yksxkas dk mijksDr vkjksiksa ds fy, bl U;k;ky; }kjk ijh{k.k fd;k tk;sxkA vkjksi vfHk;qDr dks i<+dj lquk;k o le>k;k x;kA vfHk;qDr us vkjksi ls badkj fd;k rFkk ijh{k.k fd ekax fd;kA** “I B.K. Pandey, Addl Sessions Judge/Special Judge (E.C. Act), Jaunpur charge you with the following charges- First- That on 26/27.9.2012 at 11 (as mentioned in complaint) and at several times prior thereto, you, within the limits of Village Sarauli, Dhaniya Mau under P.S. Baksha, District Jaunpur, physically and mentally harassed complainant Samarjeet’s sister Sushma Devi, for dowry, while subjecting her to cruelty, thereby committing an offence which is punishable under Section 498 A IPC and in the cognizance of the Court. Second- That on the aforesaid date, time and place you, in furtherance of common intention, committed murder o complainant’s sister Sushma Devi by sprinkling kerosene oil over her, which is cognizable under Section 302 IPC and in the cognizance of this Court. Third- That on the aforesaid date as also different dates prior thereto and at several times, you people made demands for additional money and a motorcycle, thereby committing an offence which is punishable under Section 3/4 of the Dowry Prohibition Act and is in cognizance of this Court. I hereby direct you people to be tried for the aforesaid charges by this Court. The charges were read over and explained to the accused. He pleaded not guilty and prayed for trial.” (English translation by Court) 16. Charges were read over to the accused appellant to which he pleaded not guilty and claimed to be tried for the charges. 17. In order to prove its case, prosecution examined ten witnesses in support of its case. Out of them P.W.-1 Samarjeet, brother of deceased, who has informed Superintendent of Police concerned about incident through Ext. Ka-1 and was also witness of inquest; P.W.-2 Savitri Devi, mother of deceased; P.W.-3 Amarjeet, brother of deceased; P.W.-4 Raj Kumari, sister of deceased; P.W.-5 Km. Madhu, daughter of deceased, who claimed herself to be an eye account witness of the incident; P.W.-6 Constable Pancha Ram, Chik Writer; P.W.-7 Dr. Prabhat Kumar, who was one of the Doctor conducting post-mortem on the dead body of the deceased and has proved the post-mortem report (Ext. Ka-5) and letter sent by doctor concerned to the police (Ext. Ka-6); P.W.-8 Sikandar Singh Yadav, Station Officer concerned, who has investigated the matter and has recorded the statement of witnesses under Section 161 Cr.P.C. and has also proved charge-sheet and site plan (Ext. Ka-7) and Ext. Ka-8; P.W.-9 Ram Kailash Saroj, Tehsildar, who has prepared the inquest report (Ext. Ka-9) and other police papers (Ext. Ka-10 to Ext. Ka-14) and P.W.-10 Ramesh Chandra Yadav, S.D.M., Farrukhabad, who was posted at the time of incident in district Jaunpur as Tehsildar and has recorded dying declaration of deceased as Ext. Ka.-15. 18. Ka-7) and Ext. Ka-8; P.W.-9 Ram Kailash Saroj, Tehsildar, who has prepared the inquest report (Ext. Ka-9) and other police papers (Ext. Ka-10 to Ext. Ka-14) and P.W.-10 Ramesh Chandra Yadav, S.D.M., Farrukhabad, who was posted at the time of incident in district Jaunpur as Tehsildar and has recorded dying declaration of deceased as Ext. Ka.-15. 18. It appears that after closure of prosecution evidence statement of accused appellant under Section 313 Cr.P.C. was recorded by Trial Court in which he has admitted the factum of marriage and two female child born out from their wedlock but has denied the oral and documentary evidence adduced by prosecution. It was specifically stated that dying declaration was made by deceased on tutoring of her brother in law (Bahnoi). He was falsely implicated in this matter. Deceased committed suicide herself, he tried to set off the fire therefore, he also received burn injuries on both palms. It was also stated that he himself has admitted the deceased in the hospital. Charge-sheet was submitted on insufficient evidence. Witnesses have made false statement before Court on the instigation of Ramesh Chandra, brother-in-law of deceased. It was next stated that Doctor concerned in connivance with the police did not record injuries sustained by accused appellant. 19. Accused appellant has examined Sabhajeet Yadav as D.W.-1. He did not adduce any documentary evidence. 20. Trial Court after hearing the parties and appreciating prosecution evidence vide impugned judgment and order acquitted accused appellant for the offence under Section 498-A IPC and Section 3/4 D. P. Act but convicted him for the offence under Section 302 IPC and finding it a case in the category of “rarest of rare” cases awarded death punishment and fine of Rs. 20,000/- was also imposed upon him and in the event of non payment of fine he has to undergo two years’ rigorous imprisonment. Feeling aggrieved with the conviction and sentence under Section 302 IPC present appeal has been filed by the accused appellant through Jail Superintendent beyond the limitation period. Delay was condoned by this Court on 7.8.2018 and appeal was admitted. Trial Court has also submitted reference for confirmation of death punishment under Section 366 Cr.P.C. which was registered as reference No. 4 of 2018. 21. We have heard Sri Dharmendra Singhal, learned Amicus Curiae appointed by Court and Sri Syed Ali Murtaza, learned A.G.A. for the State. 22. Delay was condoned by this Court on 7.8.2018 and appeal was admitted. Trial Court has also submitted reference for confirmation of death punishment under Section 366 Cr.P.C. which was registered as reference No. 4 of 2018. 21. We have heard Sri Dharmendra Singhal, learned Amicus Curiae appointed by Court and Sri Syed Ali Murtaza, learned A.G.A. for the State. 22. Learned Amicus Curiae appearing for the appellant submitted that FIR is lodged belatedly but no plausible explanation is given in the matter. Incident is said to have taken place in the intervening night of 26/27.9.2012. Written report is moved for the first time on 3.10.2012 before Superintendent of Police, Jaunpur. Prosecution witnesses examined in the matter claimed themselves to remain present in the hospital throughout the treatment, dying declaration said to have been recorded in the matter on 27.9.2012 was recorded in their influence which is a suspicious document as a result of tutoring by brother in law of the deceased. Facts mentioned in FIR on the point of information given at earlier stage to Police concerned was denied by witnesses examined in the matter. They have also made false statements before Court. Deceased was taken to hospital by appellant himself as would be clear from the injury report and the statement of P.W.-7 Dr. Prabhat Kumar. Statement of Km. Madhu is also based on tutoring. She has made self contradictory statement on material points. Trial Court itself has acquitted accused appellant for the offence under Section 498-A IPC and Section ¾ D. P. Act and same has not been challenged by informant or State. Thus finding recorded by Trial Court regarding guilt of accused appellant for the offence under Section 302 IPC is based on wrong appreciation of fact and evidence. There is improvement and contradiction in the statement of P.W.-1 to P.W.-4 on material points. Trial Court has not considered entire evidence adduced by prosecution in the right perspective and has not formulated mitigating and aggravating circumstances to strike balance between them. It is not a “rarest of rare” case. Finding of Trial Court about imposition of death punishment is also against settled principle of law. Accused appellant himself has informed local police and deceased herself has committed suicide by pouring kerosene over her body. At this juncture to substantiate his argument learned Amicus Curiae appearing for appellant referred to the statement of P.W.-5 Km. Finding of Trial Court about imposition of death punishment is also against settled principle of law. Accused appellant himself has informed local police and deceased herself has committed suicide by pouring kerosene over her body. At this juncture to substantiate his argument learned Amicus Curiae appearing for appellant referred to the statement of P.W.-5 Km. Madhu and P.W.-7 Dr. Prabhat Kumar and argued that finding recorded by Trial Court in the impugned judgment and order are perverse, illegal and against the settled principle of law. In fact prosecution was not able to prove its case beyond reasonable doubt. 23. Per contra, learned A.G.A. argued that deceased died during treatment due to burn injuries sustained by her in the incident. Although P.W.-1 to P.W.-4 are not eye account witnesses but P.W.-5 Km. Madhu, daughter of deceased was present on the spot. She has made categorical statement and has supported entire prosecution case. She is not a tutored witness. Dying declaration in the present matter was recorded by a Magistrate following the guidelines laid down by the Court time and again. Deceased has disclosed cause of death in the dying declaration which finds support from the statement of P.W.-5. Medical evidence fully support the prosecution version. If the statement of P.W.-1 to P.W.-4 are not taken into consideration then also prosecution was able to prove guilt of accused appellant under Section 302 IPC. Since a woman was burnt by accused appellant, who was her husband/custodian, thus observations recorded by Trial Court for imposing death penalty against accused appellant are based on correct appreciation of facts, evidence and law. Present matter clearly comes under the purview of “rarest of rare” cases. There is no illegality, infirmity or perversity in the impugned order. No interference is required by this Court and the death sentence imposed upon the accused appellant is liable to be confirmed accepting the reference. 24. We have considered rival submissions and have also gone through entire record carefully. 25. What transpired from record and evidence adduced by the parties is that incident is said to have taken place in the intervening night of 26/27.9.2012 in the house of accused appellant. FIR is lodged on the basis of written report on 3.10.2012 moved before Superintendent of Police concerned on 4.10.2012. P.W.-1 to P.W.-4 received information in the morning about the incident. FIR is lodged on the basis of written report on 3.10.2012 moved before Superintendent of Police concerned on 4.10.2012. P.W.-1 to P.W.-4 received information in the morning about the incident. When they reached the place of occurrence, deceased was found there in burn condition but conscious. She stated all the facts to these witnesses with regard to the incident. As per P.W.-1 to P.W.-3, they took deceased initially to Police Out Post, Dhania Mau. Deceased was thereafter taken to P.H.C., Baksha and Police Station Baksha. Prosecution case is also that P.W.-1 informed about the incident at initial stage on the day of taking of deceased to Police Out Post and Police Station concerned itself but no action was taken by police concerned. Then on 3.10.2012 informant, P.W.-1 moved written report (Ext. Ka-1). A perusal of record also reveals that when deceased was admitted in the District Hospital, Jaunpur she was medically examined and injury report was prepared on 27.9.2012 itself at 10.10 a.m. This document shows that deceased was brought by her husband (accused appellant) on 27.9.2012 itself. Dying declaration of the deceased was recorded by P.W.-10 Ramesh Chandra Yadav, the then Tehsildar Sadar, district Jaunpur through Ext. Ka-15 after certifying by Doctor concerned about the condition of deceased. It also appears that after recording dying declaration again certificate has been issued by Doctor concerned about the condition of the deceased. In the opinion of Doctor, she was fully conscious and capable to give statement. He has also certified that during recording of dying declaration she remained conscious and made dying declaration voluntarily. It also appears that during treatment on 6.10.2012 Sushma Devi died. Information was given by Hospital concerned through Ext. Ka-6 to the police concerned. Inquest report and other police papers were prepared. Post-mortem was also conducted. Prosecution has also examined P.W.-5 Km. Madhu, daughter of deceased, who claimed herself to remain present at the time and place of incident. P.W.-1 to P.W.-4, as per their statement, reached on the spot after receiving information in the morning. Thus there is two version regarding treatment of deceased. Firstly, as per statement of P.W.-1 to P.W.-3 they themselves have admitted deceased in the hospital for treatment. Documentary evidence (photo copy) available on record in the form of injury report prepared on 27.9.2012 revealed that deceased was admitted in the hospital by accused appellant. Thus there is two version regarding treatment of deceased. Firstly, as per statement of P.W.-1 to P.W.-3 they themselves have admitted deceased in the hospital for treatment. Documentary evidence (photo copy) available on record in the form of injury report prepared on 27.9.2012 revealed that deceased was admitted in the hospital by accused appellant. This fact was also supported by P.W.-7 Dr. Prabhat Kumar. Thus on the basis of above factual background, findings of Trial Court as well as submissions raised by learned counsel for the parties have to be scrutinized in the present matter. 26. Trial Court while passing the impugned judgment and order has broadly recorded its findings as under : “1. Post-mortem report establishes that deceased died on 6.10.2012 due to burn injuries (85% to 90%) sustained by her in the intervening night of 26/27.9.2012. 2. Dying declaration recorded on 27.9.2012 through Ext. Ka-15 was made by the deceased in a fit medical condition and the same is recorded following settled principles of law and can be relied on as a piece of evidence against the accused appellant. 3. Prosecution was not able to prove the charge under Section 498-A IPC and Section 3/4 D. P. Act against the accused appellant beyond reasonable doubt. 4. P.W.-5 Km. Madhu was present on the spot at the time of incident. She is not a tutored witness. She was tested before her examination and she has given rational answer of the questions put to her. 5. Facts about cause of death disclosed by deceased in the dying declaration finds support with the statement of P.W.-5 Km. Madhu. 6. Medical evidence fully support oral version. There is no conflict at all in oral and medical evidence. 7. Trial Court has found charge under Section 302 IPC framed against accused appellant proved by prosecution evidence beyond reasonable doubt. 8. Trial Court has also considered the question of sentence although has not strike the balance between mitigating and aggravating circumstances in the matter but relying on the provisions of Section 105 and 106 of the Indian Evidence Act and also finding the present matter in the category of “rarest of rare” cases has imposed death penalty to the accused appellant.” 27. In the case in hand although no specific finding has been recorded by Trial Court on the point of F.I.R. yet we have minutely analysed prosecution evidence to ascertain the fact whether any information on the day of admission of the deceased in the hospital had been given by Informant to the local police or not. P.W.-1, who is Informant in the matter, has clearly stated that when he reached the spot, deceased was lying there. She (deceased) stated all episode to him. Thereafter she was taken to Police Out Post on Auto Rickshaw and to P.H.C., Baksha and there-from she was referred to District Hospital, Jaunpur. Statement of P.W.-1 is also that he informed local police at that time itself. Same fact was stated by P.W.-2 and P.W.-3. P.W.-4 who is sister of deceased, was not present on the spot in the morning alongwith P.W.-1 to P.W.-3 but reached later on after receiving information. Statement of P.W.-4 about lodging of FIR and admitting deceased in the hospital for treatment has no relevance because it is based on hearsay evidence. On close scrutiny of statements of P.W.-1 to P.W.-3, it also emerges that there are major contradiction in their statements on the point that when they reached the place of occurrence in the morning of 27.9.2012, accused appellant Manoj Kumar was present there or not. P.W.-2 in her cross-examination has clearly stated that accused appellant was present there. Although P.W.-1 to P.W.-4 at another point of time in their examination have tried to falsify this fact but we have compared it with the medical examination report prepared at initial stage on 27.9.2012 at District Hospital which clearly reveals that deceased was admitted in hospital by her husband (accused appellant). This fact was suppressed by prosecution and material evidence on this point was not produced. 28. In the present matter FIR was lodged on the application moved on 3.10.2012 by P.W.-1 to Superintendent of Police concerned on 4.10.2012. Meaning thereby no complaint was made till 3.10.2012 although dying declaration is said to have been recorded on 27.9.2012 itself which clearly reveals involvement of accused appellant in the present matter. 28. In the present matter FIR was lodged on the application moved on 3.10.2012 by P.W.-1 to Superintendent of Police concerned on 4.10.2012. Meaning thereby no complaint was made till 3.10.2012 although dying declaration is said to have been recorded on 27.9.2012 itself which clearly reveals involvement of accused appellant in the present matter. It may be mentioned here that lodging of FIR on 3.10.2012 itself will not be sufficient to disbelieve prosecution evidence because dying declaration said to have been made by deceased has been considered by Trial Court in the impugned judgment and order to form an opinion about the guilt of accused appellant under Section 302 IPC. It may also be mentioned here that statement of P.W.-1 to P.W.-4 may be wrong about taking of deceased to hospital and information said to have been given by P.W.-1 to local police on 27.9.2012 itself, but the facts that deceased sustained burn injuries in the house of accused appellant in the intervening night of 26/27.9.2012; dying declaration was recorded on 27.9.2012 while she was under treatment; P.W.-5 was present in the house at the time of incident cannot be disbelieved only on the ground of delay in lodging of FIR. Certainly FIR came into existence in the matter on 4.10.2012 and there is delay in lodging FIR but the same is not fatal to prosecution case. There may be so many reasons about non lodging of FIR at initial stage itself which generally happens in such type of incident, especially when there were two children born out from the wedlock of deceased. Thus, delay in lodging of FIR in the present matter cannot be a ground to disown or discard prosecution evidence. Since there is dying declaration and statement of eye account witness, therefore, other evidence has to be scrutinized/re-appreciated to ascertain correctness of findings of Trial Court. 29. As has been mentioned herein above, P.W.-1 to P.W.-4 are not eye account witnesses. They reached at the place of occurrence on the basis of information received by them in the morning of 27.9.2012. Therefore, we have to see the nature of injuries sustained by the deceased and medical evidence. 30. It is admitted fact by the prosecution and defence that deceased died on 6.10.2012 during treatment due to burn injuries sustained by her on 27.9.2012. Therefore, we have to see the nature of injuries sustained by the deceased and medical evidence. 30. It is admitted fact by the prosecution and defence that deceased died on 6.10.2012 during treatment due to burn injuries sustained by her on 27.9.2012. Plea of accused appellant is that deceased committed suicide herself and he also received injuries in his palms while saving her. Prosecution case is that accused appellant pouring kerosene oil over the body of deceased set ablaze her and she received burn injuries. Medical evidence as disclosed in the injury report dated 27.9.2012 prepared at initial stage at District Hospital, Jaunpur, post-mortem report and statement made by Doctor clearly reveal that face and sole of deceased were not burnt. There was 85% to 90% burn injuries. She remain conscious during treatment. If statements recorded under Section 313 Cr.P.C. of the accused appellant are taken into consideration, accused appellant has shown ignorance about preparation of post-mortem report (Ext. Ka-5) but the statement of D.W.-1 examined on behalf of defence, if taken into consideration, this witness has admitted that deceased received burn injuries in the intervening night of 26/27.9.2012 and when he heard about incident he reached the spot. Thus, if entire evidence adduced by the parties on this issue are considered in entirety in respect of the time of death and injuries sustained by deceased, it is clear that deceased received burn injuries in the intervening night of 26/27.9.2012 and she died during treatment in hospital. Doctor has clearly opined that deceased died due to burn injuries sustained by her. Thus in the present matter, medical evidence fully supports oral version about cause of death of the deceased. Finding recorded by Trial Court on this point is based on correct appreciation of evidence. It may be mentioned here that findings of Trial Court cannot be turned down on the ground that head, face and sole of deceased were not burnt. No hard and fast rule of universal application about the manner and mode of burn injuries can be applied because it depends upon the fact that on which part of body combustible substance was poured and what was reaction of deceased. In the statement of P.W.-5 it has come that deceased came out in burning condition from the room. No hard and fast rule of universal application about the manner and mode of burn injuries can be applied because it depends upon the fact that on which part of body combustible substance was poured and what was reaction of deceased. In the statement of P.W.-5 it has come that deceased came out in burning condition from the room. It has also come in the statement of prosecution witnesses that deceased’s mother-in-law and other family members tried to save her. If such was the position and she was saved by other family members then non finding of burn injuries on the face, head and sole itself is not sufficient to turn down the findings of Trial Court recorded on the point of medical evidence. Submissions raised by learned Amicus Curiae that medical evidence is contradictory to the oral evidence is not acceptable. 31. Coming to the next question about presence of P.W.-5 at the place of occurrence and admissibility of her statement we have minutely analysed evidence in the light of settled exposition of law. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 , Court has held that testimony of a child witness can be relied on in absence of oath if it is found credible in the facts and circumstances of the case. Only requirement under Section 118 of the Evidence Act is that such witness must be tested to ascertain her competency regarding understanding the question and giving rational answer thereto. The evidence of a child witness and credibility there of would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing evidence of a child witness is that witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. 32. Ratio laid down in Dattu Ramrao (Supra) has been followed in following cases also : (I) Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 (II) Ratansingh Dalsukhbhai Nayak v. State of Gujrat, (2004) 1 SCC 64 (III) Nivrutti Pandurang Kokate and others v. State of Maharashtra, (2008) 12 SCC 565 . 33. It is also well-settled that evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is practical wisdom than of law. 33. It is also well-settled that evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is practical wisdom than of law. (See - Prakash and another v. State of M.P., (1992) 4 SCC 225 ; Raja Ram Yadav and others v. State of Bihar, (1996) 9 SCC 287 ; State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70 and Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 ). 34. It is also settled position of law that testimony of a child witness cannot be rejected merely on the ground of being minor, if it is found reliable. The law is also that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him/her and thus a child witness is an easy prey to tutoring. [Vide Panchhi and others v. State of U.P., (1998) 7 SCC 177 ] 35. True import of aforesaid decisions is that a child witness is always competent to testify under Section 118 of Indian Evidence Act if he/she is capable to understand the question and give rational answer thereto. Tender age of such witness cannot be a ground to reject his/her evidence. Even if oath is not administered to such witness, testimony of that witness cannot be thrown out and no generalization can be made that each and every minor witness is always deemed to be a tutored witness. Testimony of such witness has to be scrutinized in the light of settled legal proposition of law carefully and cautiously. 36. In the instant matter P.W.-5 Km. Madhu was tested by Court putting questions before recording her statement. Although what sort of questions were put to her to test her competency have not been disclosed and only this fact is mentioned that on putting essential questions to her she was found competent to give rational answer. If for the sake of argument this fact is not taken into consideration then also from the lengthy cross-examination made to this witness it is clear that she was enough competent to understand questions put to her and to give rational answers. Tutoring may be in examination in chief but there is less chance of tutoring in cross-examination. If for the sake of argument this fact is not taken into consideration then also from the lengthy cross-examination made to this witness it is clear that she was enough competent to understand questions put to her and to give rational answers. Tutoring may be in examination in chief but there is less chance of tutoring in cross-examination. Thus findings recorded by Trial Court about competency and credibility of P.W.-5 and her presence at the time and place of occurrence cannot be termed illegal. Since P.W.-1 to P.W.-4 are not eye account witness, their statement made on cruelty and beating to deceased have been found false by Trial Court itself even then findings of Trial Court about reliability of statement of P.W.-5 cannot be termed to be illegal. A fact may be proved by solitary statement of a witness. There is no requirement of law to prove a fact by a number of witnesses. At this juncture it will be useful to take note of the provision of Section 134 of Indian Evidence Act. Incident took place in the intervening night of 26/27.9.2012 and P.W.-5 was the solitary witness present there. Other child was not matured to follow and understand activities happened at the time of incident. Family members reached there after hearing hue and cry. P.W.-5 is also a witness of altercation which took place between deceased and the accused. She has categorically stated that accused appellant was sleeping in the night in the verandah out side the room concerned where deceased was sleeping. P.W.-5 and her sister were also sleeping there in the night concerned. Accused appellant went inside the room and thereafter present incident took place. Deceased came out in burning condition from the room. Statement of P.W.-5 Km. Madhu also finds support from medical evidence. She is not a tutored witness nor she can be termed in the category of unreliable witness. Thus Trial Court has rightly placed reliance on the statement of P.W.-5. 37. So far as dying declaration said to have been recorded in the present matter is concerned P.W.-10 Ramesh Chand Yadav, the then Tehsildar, Sadar, district Jaunpur on the information of Investigating Officer concerned reached the hospital concerned and after obtaining certificate from Doctor concerned at 2.03 p.m. recorded dying declaration of deceased at 2.05 p.m. Statement (declaration) recorded by P.W.-10 has also been proved as Ext. Ka-15. Ka-15. Since no particular form of recording of dying declaration has been prescribed and Hon’ble Apex Court in the case of Lakshman v. State of Maharashtra, (2002) 6 SCC 710 , has also approved that a dying declaration can be made verbally or in writing or by any method of communication like signs, words or otherwise which provide a definite indication. 38. In the present matter dying declaration can be relied upon taking recourse to Section 32 of Indian Evidence Act. Ext. Ka-15 also reveals that deceased was conscious during the period of recording of dying declaration. She was mentally fit. It will also be useful to note here that head and face of deceased was safe. No burn injury was found on the above portion of the body. If such was the position, opinion given by Doctor concerned before and after recording of the dying declaration cannot be said to be suspicious/doubtful. Prosecution was able to prove dying declaration recorded in the matter, as has been reproduced herein above and has been rightly relied upon by Trial Court in impugned judgment and order. 39. As far as motive is concerned, if the statement of P.W.-1 to P.W.-4 are not taken into consideration then also in the dying declaration (Ext. Ka-15) and in the statement of P.W.-5 Km. Madhu, daughter of deceased, this fact has come that appellant used to come to the house in drunken condition and always quarrel with the deceased and beat her. P.W.-5 in the cross-examination has also admitted that deceased did not obey the accused appellant and used to go out of her matrimonial house on her own freewill. But this fact alone is not sufficient to disbelieve the prosecution case on point of motive. On the day of incident accused appellant had come after taking liquor and a quarrel took place between deceased and accused appellant in the night itself. It may also be mentioned here that motive always plays double role. In the instant matter present offence was committed by accused appellant due to motive proved by prosecution. Nature of motive stated by the prosecution witnesses to commit the present offence under Section 302 IPC if compared with the findings of Trial Court, we do not find any error in the Trial Court finding and no interference is required by this Court on this issue. 40. Nature of motive stated by the prosecution witnesses to commit the present offence under Section 302 IPC if compared with the findings of Trial Court, we do not find any error in the Trial Court finding and no interference is required by this Court on this issue. 40. As far as variation and discrepancies occurred in prosecution evidence is concerned, the settled legal position of law on the subject is that as a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to accused-appellant. (See Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 ). Simultaneously, it is also well-settled that if prosecution case is established by evidence adduced, any failure or omission on the part of Investigating Officer cannot render the case of prosecution doubtful. (See Amar Singh v. Balwinder Singh, AIR 2003 SC 1164 and Sambhu Das v. State of Assam, AIR 2010 SC 3300 ) : (2010) 10 SCC 374 . 41. If in the light of the settled legal proposition laid down by Hon’ble Apex Court, in the aforesaid cases, the factual circumstances of present case is taken into consideration, prosecution case about the admissibility and reliability of dying declaration, truthfulness of statement of P.W.-5 and the medical evidence cannot be disowned. Findings of Trial Court on these point are based on correct appreciation of fact, evidence and law. 42. Thus what has been discussed herein above by us, it clearly emerges that prosecution was able to prove the guilt of the accused appellant for the offence under Section 302 IPC. Deceased has clearly stated cause of her death in the dying declaration (Ext. Ka-15) recorded on 27.9.2012 itself by a competent Magistrate; prosecution case also finds support from statement of P.W.-5, who was present on the spot and has seen entire incident happened in the matter. Oral prosecution version also finds support with the medical evidence. Deceased died during treatment on 6.10.2012 in the hospital due to burn injuries sustained by her in the incident. Thus finding recorded by Trial Court about guilt of accused appellant for the offence under Section 302 IPC taking recourse to the provisions of Section 106 of Evidence Act is based on correct appreciation of fact, evidence and law. Deceased died during treatment on 6.10.2012 in the hospital due to burn injuries sustained by her in the incident. Thus finding recorded by Trial Court about guilt of accused appellant for the offence under Section 302 IPC taking recourse to the provisions of Section 106 of Evidence Act is based on correct appreciation of fact, evidence and law. No interference is required by this Court in the findings of the Trial Court on these points. 43. So far as applicability of provision of Section 86 of IPC is concerned, although prosecution (in dying declaration) has admitted that at the time of incident, accused-appellant had consumed liquor, but the facts and circumstances of case, manner in which present incident was committed, it cannot be held that accused-appellant was deprived of his thinking power. Particular knowledge/intention required to constitute present offence can easily be gathered from acts done by accused-appellant during the course of incident. Conduct of accused-appellant during the course of commission of offence also shows that inspite of consumption of liquor, accused-appellant had intention to commit such an act which was forbidden by law. Burn injuries have been found upon the body of deceased, thus, accused-appellant cannot seek any help of Section 86 IPC. Plea taken by accused-appellant is not acceptable. Provision of Section 86 IPC cannot be applied in the present matter. Act of accused-appellant clearly demonstrates that he was fully conscious and aware about the act done by him. When all incriminating facts adduced before Court by prosecution, were put to the accused under Section 313 Cr.P.C., no plausible explanation about commission of present offence, has been given by him. The only explanation given by him is that he has been falsely implicated in this case on the instigation of brother-in-law of deceased. No evidence was adduced by accused-appellant to create doubt about truthfulness of prosecution evidence and dying declaration or to support the plea taken by him. It is also settled legal position that voluntary drunkenness cannot excuse the commission of an offence. If the person had not gone so deep in drinking and from the facts it could be found that he knew what he was about, Court will apply the rule that a man is presumed to intend the natural consequences of his act. It is also settled legal position that voluntary drunkenness cannot excuse the commission of an offence. If the person had not gone so deep in drinking and from the facts it could be found that he knew what he was about, Court will apply the rule that a man is presumed to intend the natural consequences of his act. Merely establishing that person’s mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. Thus, we are also of the view that accused appellant cannot be extended with the benefit of Section 86 IPC. 44. Coming to the sentence imposed upon accused appellant, we find from record that Trial Court has not formulated any mitigating and aggravating circumstances to strike the balance between the same to compare the weight of the circumstances but has held that present matter comes under the purview of “rarest of rare” cases. 45. On the scrutiny of evidence, mitigating and aggravating circumstances emerged in the present matter are summarised as under : “MITIGATING CIRCUMSTANCES 1. Accused appellant has disclosed in the statement under Section 313 Cr.P.C. his age as 42 years on 22.9.2017 meaning thereby on the day of incident he was aged about 37 years. 2. Information to the parents of the deceased has been given by in-laws of the deceased who tried to save her. 3. Accused appellant himself has admitted deceased in the hospital for treatment as would be clear from the injury report prepared on27.9.2012 and the statement made by P.W.-7. 4. Accused appellant was also present in his house in the next morning when P.W.-1 to P.W.-3 reached at the place of occurrence. 5. FIR is lodged after a gap of about seven days although P.W.-1 to P.W.-4 were present in the Hospital since 27.9.2012. 6. P.W.-5 herself has admitted that accused appellant had admitted the children in the school for their education and they (accused appellant and deceased) used to quarrel for the money. 7. Deceased did not obey the accused and used to go at her own freewill at any time anywhere as per P.W.-5. 8. P.W.-5 has also admitted that deceased came out in burning condition from the room and making hue and cry went to the cot of accused appellant. 9. 7. Deceased did not obey the accused and used to go at her own freewill at any time anywhere as per P.W.-5. 8. P.W.-5 has also admitted that deceased came out in burning condition from the room and making hue and cry went to the cot of accused appellant. 9. Nothing is on record to support the fact that accused appellant is convicted person. Facts mentioned in this respect in Ext. Ka-1 was not established by the prosecution.” 46. Following aggravating circumstances are emerging in the present matter : “1. Deceased has made dying declaration that accused appellant pouring kerosene oil set her ablaze and caused burn injuries. 2. Incident took place in the house of accused appellant and cause of death of deceased is burn injuries (85% to 90%). 3. Offence was committed against an woman who was helpless in the house of accused appellant and she was not taken to the Hospital by accused appellant immediately after incident.” 47. Apart to the above circumstances, Trial Court has taken into consideration this fact that accused was pressurizing the deceased to give statement in his favour. Record reveals that this circumstance has not been proved by prosecution beyond reasonable doubt. 48. Thus Trial Court following the dictum laid down in Devendra Pal Singh v. State of N.C.T. of Delhi, (2002) 5 SCC 234 , found it a case in the category of “rarest of rare” cases and imposed death punishment. 49. Now the question before us is whether death penalty in the present case is justified. Before looking to the facts of present case on the question of sentence, it would be appropriate to advert to judicial authorities on the matter throwing light and laying down principles for imposing penalty, in a case, particularly death penalty. 50. One of the earliest case, in the matter is Bachan Singh v. State of Punjab, (1980) 2 SCC 684 . In para 164, Court said that normal rule is that for the offence of murder, accused shall be punished with the sentence of life imprisonment. Court can depart from that rule and impose sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing death sentence. In para 164, Court said that normal rule is that for the offence of murder, accused shall be punished with the sentence of life imprisonment. Court can depart from that rule and impose sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing death sentence. While considering question of sentence to be imposed for the offence of murder under Section 302 IPC, Court must have regard to every relevant circumstance relating to crime as well as criminal. If Court finds 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, Court may impose death sentence. 51. Relying on the authority in Furman v. Georgia, (1972) SCC OnLine US SC 171, Court noted the suggestion given by learned counsel about aggravating and mitigating circumstances in para 202 of the judgement in Bachan Singh (supra) which read as under : “202. ... ‘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.” 52. Thereafter in para 203, Court said that broadly there can be no objection to the acceptance of these indicators noted above but Court would not fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other. Thereafter in para 206 of judgment in Bachan Singh (supra), Court also suggested certain mitigating circumstances as under : “206. ... ‘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. 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 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.’” 53. Again in para 207 in Bachan Singh (supra), Court further said that mitigating circumstances referred in para 206 are relevant and must be given great weight in determination of sentence. Thereafter referring to the words caution and care, in Bachan Singh (Supra) Court observed that it is imperative to voice the concern that Courts, aided by the broad illustrative guidelines, will discharge onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz.., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 54. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 54. Then in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 , stress was laid on certain aspects namely, manner of commission of murder, motive thereof, antisocial or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. Court culled out certain propositions emerging from Bachan Singh (supra), in para 38 and said as under : “The following propositions emerge from Bachan 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 alongwith 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.” 55. The three-Judges Bench in Machhi Singh (supra) further said that following questions must be answered in order to apply the guidelines : “(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?” (Emphasis added) 56. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 , after referring to Bachan Singh (supra) and Machhi Singh (supra), Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh (supra) to cases where the “collective conscience” of community is so shocked that it will expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. Court, however, underlined that full weightage must be accorded to the mitigating circumstances of the case and a just balance had to be struck between the aggravating and the mitigating circumstances. 57. In para 20 of the judgment in Haresh Mohandas Rajput (supra), Court observed that the rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur of the momentary provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society, death sentence should be awarded. 58. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 , Court opined that imposition of appropriate punishment is the manner in which Courts respond to the society’s cry for justice against the criminals. 58. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 , Court opined that imposition of appropriate punishment is the manner in which Courts respond to the society’s cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that Courts reflect public abhorrence of the crime. Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 59. After referring to earlier authorities including Bachan Singh (supra) and Machhi Singh (supra), Supreme Court in Ramnaresh and others v. State of Chhattisgarh, (2012) 4 SCC 257 , tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances and in para 76 said as under : “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 of the Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 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. (9) When murder is committed for a motive which evidences total depravity and meanness. (10) When there is a cold-blooded murder without provocation. (11) 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.” (Emphasis added) 60. (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.” (Emphasis added) 60. The principles laid down in Bachan Singh (supra) and Machhi Singh (supra) were sought to be followed and applied subsequently for deciding as to what sentence should be awarded but later on it was felt that the principles laid down in the above authorities are not being correctly applied and have led to inconsistency in sentencing process in India. It was also observed that the list of categories of murder crafted in Machhi Singh (supra) in which death sentence ought to be awarded are not exhaustive and needs to be given even more expansive adherence owing to changed legal scenario. 61. A three-Judge Bench in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767 , in para 43 of the judgment, said : “43. In Machhi Singh the Court crafted the categories of murder in which `the Community’ should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh was rendered on 20-7-1983, nearly twenty-five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for ransom and gang rape and murders committed in the course of those offences were yet to become a menace for the society compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country’s Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge Government contracts purely by muscle power. There were no reports of killings of social activists and `whistle blowers’. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. There were no reports of killings of social activists and `whistle blowers’. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. Relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself.” (Emphasis added) 62. In a recent judgment in Mukesh and another v. State (NCT of Delhi) and others, (2017) 6 SCC 1 , a three-Judges Bench has confirmed death sentence in two concurring judgments rendered by Hon’ble Dipak Misra,J. (for himself and Hon’ble Ashok Bhusan,J.) and by Hon’ble R. Banumathi,J. 63. After referring to catena of decisions, earlier rendered on the question of sentence, it is observed that Court would consider cumulative effect of both factors i.e. aggravating and mitigating circumstances and has to strike a balance between the two and see towards which side the scale/balance of justice, tilts. 64. Hon’ble R. Banumathi, J. observed that factors like poverty, young age, dependants, absence of criminal antecedents, post crime remedies and good conduct in imprisonment cannot be taken as mitigating circumstances to take out the case in the category of rarest of rare case. In para 516 of concurring judgment, Hon’ble R. Banumathi,J. Court said : “Society’s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. As held in Om Prakash v. State of Haryana, (1999) 3 SCC 19 , the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime.” (Emphasis added) 65. The true import of aforesaid settled propositions of law is that awarding of life imprisonment for offence under Section 302 IPC is the rule and death sentence is an exception. Death sentence should only be awarded in cases which come under the purview of “rarest of rare” cases. The true import of aforesaid settled propositions of law is that awarding of life imprisonment for offence under Section 302 IPC is the rule and death sentence is an exception. Death sentence should only be awarded in cases which come under the purview of “rarest of rare” cases. Hon’ble Supreme Court, time and again has ruled that for awarding death sentence, Courts should specify the aggravating and mitigating circumstances of the case. What are the aggravating and mitigating circumstances would depends upon the facts of each case. 66. Mitigating circumstances are categorized as the manner and circumstances in and under which offence was committed; the age of the accused; the chances of the accused in not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated; if 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 and 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. Mitigating circumstances may also be that if upon appreciation of evidence Court is of the view that crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime. Court has to see, if it is ‘rarest of rare’ case for awarding death sentence and in the opinion of Court any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice then only extreme punishment would be awarded. Moreover, aggravating circumstances are in relation to crime and victim while mitigating circumstances are broadly in relation to criminal. Balance between the two has to be ascertained by Court while determining “Rarest of rare” case. Circumstances discussed in aforesaid decisions are example but not exhaustive. No fixed formula has been set to formulate aggravating and mitigating circumstances and the discretion is left with Court which has to evaluate, depending on the facts and circumstances of each case. 67. Applying the exposition of law as discussed above, in the facts of the present case, we have examined the available aggravating and mitigating circumstances in the case in hand. 68. 67. Applying the exposition of law as discussed above, in the facts of the present case, we have examined the available aggravating and mitigating circumstances in the case in hand. 68. In the present matter it was incumbent upon the Trial Court to strike balance between aggravating and mitigating circumstances but Trial Court failed to do so and has not evaluated the facts whether there is chance for reformation of the accused appellant or not. It is also evident from the impugned judgment that although in the FIR, First Informant has stated that accused is a convicted person but nothing is on record to substantiate this fact. If the facts and circumstances of the case are considered in the light of settled proposition of law the present offence was not committed by accused appellant in a preordained manner. Trial Court has also not considered as to why imposition of imprisonment of life in the present matter against accused appellant would be inadequate. It is settled proposition of law that for offence under Section 302 I.P.C. imposition of imprisonment for life, is a rule but imposition of death sentence is an exception. If the mitigating and aggravating circumstances emerged in the matter are evaluated cumulatively, the magnitude of the crime said to have been committed by the accused appellant is not of such nature which warrant only and only death sentence. Appellant is not menace and threat to the harmonious and peaceful co-existence of society. Age of the accused at the time of commission of present offence was only 37 years. It can also not be ruled out that there is chance of reform of the accused appellant. Conduct of the accused appellant prior to, at the time of and subsequent to the commission of crime as emerged in the prosecution evidence is not of such nature which compels the Court to impose only death punishment upon the accused. It is also noteworthy that as a result of the commission of the crime, the appellant himself is the greatest sufferer. It was also not a planned crime. It is also clarified at this stage that accused is neither dangerous person nor would endanger the community if he is spared or only sentence of imprisonment of life is imposed upon him. 69. It was also not a planned crime. It is also clarified at this stage that accused is neither dangerous person nor would endanger the community if he is spared or only sentence of imprisonment of life is imposed upon him. 69. Considering the above aspect, in our considered view, present matter does not come under the category/purview of “rarest of rare” cases where imposition of death sentence is imperative. It is also not a case where imposing any other sentence would not served the ends of justice or would be entirely inadequate. 70. Thus in the present matter, when we draw the balance sheet of aggravating and mitigating circumstances and examine them in the light of the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that this is not a case where this Court ought to confirm the extreme penalty of death upon accused. Thus, in our considered view, appeal filed on behalf of accused appellant is liable to be partly allowed and death sentence awarded to the accused appellant is liable to be modified/commuted to the sentence of imprisonment for life and also fine imposed upon him by Trial Court. Hence reference submitted by Trial Court for confirmation of death sentence is not liable to be allowed/confirmed/accepted. 71. On the basis of foregoing discussions, Reference No. 4 of 2018 submitted by Trial Court for confirmation of the death punishment awarded to the accused appellant Manoj Kumar is hereby rejected and present criminal appeal having some merit, is partly allowed. 72. The finding of conviction recorded by Trial Court under Section 302 IPC in Sessions Trial No. 384 of 2012 (State of U.P. v. Manoj Kumar) regarding conviction of the accused appellant Manoj Kumar is confirmed. 73. The sentence of death awarded to accused appellant Manoj Kumar is commuted into that of sentence of imprisonment of life but fine imposed by Trial Court is maintained. 74. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. Copy of the judgment be also sent to accused appellant through Superintendent Jail concerned for his information. Compliance report be also submitted to this Court. 75. Sri Dharmendra Singhal, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel’s fee as Rs. Copy of the judgment be also sent to accused appellant through Superintendent Jail concerned for his information. Compliance report be also submitted to this Court. 75. Sri Dharmendra Singhal, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel’s fee as Rs. 25,000/- State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Dharmendra Singhal, Amicus Curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.