JUDGMENT : Mohammad Rafiq, J. This judgment will answer the reference received from the Court of Special Judge, Scheduled Castes/Scheduled Tribes (Prevention of Atrocities Cases), Kota (Rajasthan) (hereinafter referred to as 'the trial court') under Section 366 of the Code of Criminal Procedure (for short 'Cr.P.C.') for confirmation of death sentence awarded by the trial court vide it's judgment and order dated 07.11.2017 to accused Kapil @ Anna; Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali consequent upon their conviction for offence under Section 302 read with Section 34 of Indian Penal Code (for short 'IPC'). Besides, accused-appellants Kapil @ Anna; Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali were also convicted for various offences and sentenced in the manner indicated below:- Name of Accused-appellant Section Sentence Kapil @ Anna 302 r/w 34 IPC Death sentence. 376 (2) (g) IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 397 IPC Seven years' rigorous imprisonment. 460 IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 3/25 Arms Act Three years' simple imprisonment with fine of Rs. 10,000/-, in default of payment of fine, two months' additional imprisonment. Imran @ Delhi Wala 302 r/w 34 IPC Death sentence. 376 (2) (g) IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 397 IPC Seven years' rigorous imprisonment. 460 IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 3/25 Arms Act Three years' simple imprisonment with fine of Rs. 10,000/-, in default of payment of fine, two months' additional imprisonment. 3(1)(xii) SC/ST (POA) Act Three years' simple imprisonment with fine of Rs. 5,000/-, in default of payment of fine, one month's additional imprisonment. 3 (2) (v) SC/ST (POA) Act Life imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. Teepu @ Teepu Sultan @ Abid Ali 302 r/w 34 IPC Death sentence. 376 (2) (g) IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 397 IPC Seven years' rigorous imprisonment. 460 IPC Ten years' rigorous imprisonment with fine of Rs. Teepu @ Teepu Sultan @ Abid Ali 302 r/w 34 IPC Death sentence. 376 (2) (g) IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 397 IPC Seven years' rigorous imprisonment. 460 IPC Ten years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 3/25 Arms Act Three years' simple imprisonment with fine of Rs. 10,000/-, in default of payment of fine, two months' additional imprisonment. 3(1)(xii) SC/ST (POA) Act Three years' simple imprisonment with fine of Rs. 5,000/-, in default of payment of fine, one month's additional imprisonment. 3 (2) (v) SC/ST (POA) Act Life imprisonment with fine of Rs. 20,000/-, in default of payment of fine, three months' additional imprisonment. 2. Abovenamed accused Kapil @ Anna; Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali have also filed Criminal Appeal Nos. 2257/2017 and 2256/2017 respectively challenging their conviction and sentences indicated above. State of Rajasthan has also filed Criminal Appeal No. 13/2018 against that part of the impugned judgment whereby the trial court while awarding death sentence has not imposed any fine and sentence in default thereof, upon the accused-appellants. 3. The facts essential for answering the reference and deciding above appeals are that a telephonic information was received from one Sunil Koli in the Police Station Udyog Nagar, Kota City at 3.25 P.M. on 06.12.2012 that a woman and a boy have been murdered in a house of Shiva Colony, Bajrang Nagar, Near Daknia Stand. Thereupon, S.H.O. of that Police Station reached the place of occurrence where he met Mukesh Kumar Koli, who submitted a written report to him that he was residing with his family near cremation ground at Vigyan Nagar. When he came to house of Guddi Bai around 3.15 P.M. on that day and knocked the door of her house, no response was received from inside. When he pushed the door, it was opened. On entering the house, he found that the room was open and all the household items were spread here and there. Guddi Bai was lying dead. Dead body of her son Rohit, whose hands and legs were tied with rope, was also lying on the nearby box. He immediately informed the neighbours. Sunil Koli telephonically informed the police about this. On entering the house, he found that the room was open and all the household items were spread here and there. Guddi Bai was lying dead. Dead body of her son Rohit, whose hands and legs were tied with rope, was also lying on the nearby box. He immediately informed the neighbours. Sunil Koli telephonically informed the police about this. It was alleged that Guddi Bai once or twice told him that Kapil and Teepu were having enmity with her husband Shiva and had threatened to murder him. It is quite possible that they murdered Guddi Bai and Rohit. The incident appears to have taken place in the night of 05.12.2012. 4. That the police on the basis of aforesaid written report chalked out FIR No. 1274/2012 (Exhibit P-17) for offences under Sections 460, 302 IPC and Section 3/25 Arms Act and commenced investigation. Charge sheet was filed against accused-appellant Imran @ Delhi Wala and Teepu @ Teepu Sultan for offences under Sections 302/34, 450, 460, 397, 376(g)/34, 120B IPC, Section 3(2)(v) and 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act of 1989') and Section 3/25 Arms Act and against Kapil @ Anna for offences under Sections 302, 450, 460, 397, 376(g)/34, 120B IPC and Section 3/25 Arms Act before the competent court, which committed the case to the Court of Sessions wherefrom it was made over to the Court of Special Judge, SC/ST (Prevention of Atrocities), Kota for trail. The trial court framed charges against accused-appellants for the aforementioned offences, which they denied and claimed to be tried. The prosecution examined 35 witnesses and exhibited 130 documents. Thereafter, the accused- appellants were examined under Section 313 Cr.P.C. wherein they stated that they were falsely implicated. Though no witness was produced in defence, but three documents were exhibited. Upon completion of trial, the trial court vide it's judgment and order dated 07.11.2017, convicted and sentenced the accused- appellants in the manner indicated above. 5. Mr. O.P. Jhajharia, learned counsel for the accused- appellants argued that the trial court has erred in law in mechanically convicting the accused-appellants for the alleged offences whereas the evidence on record does not measure up to the required standard of proof beyond reasonable doubt. Findings of the learned trial court are based on conjectures and surmises. 5. Mr. O.P. Jhajharia, learned counsel for the accused- appellants argued that the trial court has erred in law in mechanically convicting the accused-appellants for the alleged offences whereas the evidence on record does not measure up to the required standard of proof beyond reasonable doubt. Findings of the learned trial court are based on conjectures and surmises. Evidence of prosecution witnesses is marred by number of contradictions/inconsistencies and discrepancies inasmuch as prosecution witnesses have made marked improvement over their original versions given to the police in their statements under Section 161 Cr.P.C. Testimony of such witnesses cannot be treated as credible and reliable for sustaining conviction of accused-appellants for the alleged offences. The appellants have been falsely implicated in the present case. There is no evidence to prove that accused-appellants ever visited house of the deceased Guddi Bai. Use of pistol is completely ruled out from the fact that no neighbour has come forward to depose that they ever heard the sound of pistol being fired. There is no evidence of the accused being lastly seen in the company of the deceased or around the house of the deceased or even in the colony. Recovery of pistol, mobile handset, a shirt, an underwear and vest (baniyan) at the instance of Teepu @ Teepu Sultan vide memos Exhibit P-46 and Exhibit P-22 respectively; recovery of pistol, mobile handset of Nokia make, shirt, underwear, vest (baniyan) at the instance of Imran @ Delhi Wala vide memos Exhibit P-45 and Exhibit P-23 respectively and recovery of pistol, mobile handset of Nokia make, an underwear and a vest (baniyan) vide memos Exhibit P-44 and Exhibit P-24 at the instance of Kapil @ Anna is nothing but result of fabrication and police padding. Recovery of motor cycle at the instance of Kapil @ Anna vide Exhibit P-25 is a neutral circumstance as it was his own motor cycle. Case of the prosecution being entirely founded on circumstantial evidence, there ought to be multiple clinching and convincing incriminating circumstances to form a chain in such a way as to rule out every single hypothesis that may be compatible with the innocence of the accused. 6. Case of the prosecution being entirely founded on circumstantial evidence, there ought to be multiple clinching and convincing incriminating circumstances to form a chain in such a way as to rule out every single hypothesis that may be compatible with the innocence of the accused. 6. It is argued that Doli Koli (P.W.10), daughter of the deceased, has been made to falsely say that accused Teepu and Kapil came to the place of her maternal grandmother Kamla Bai (P.W.12) where she used to reside, enquiring about her father Shiva and uttering that they have already committed murder of 15-20 persons and that they threatened to kill her and her parents and brother. If that was so, there was no reason why any complaint was not given to the police. Similarly, statement of Kamla Bai (P.W.12), mother of the deceased also cannot be relied, who stated that her daughter Guddi Bai used to tell her that she had danger to her life from accused Kapil and Teepu, as their relations with her husband Shiva were inimical. Kamla Bai (P.W.12) further stated that these accused came to her house 810 days ago and enquired about Shiva, which is factually false. Learned counsel argued that learned trial court has mechanically convicted accused-appellant for the offence of gang rape under Section 376 (2)(g) IPC. Reference in this connection has been made to statement of Dr. Nidhi Jain (P.W.13) and post mortem report of Guddi Bai (Exhibit P-4). Dr. Nidhi Jain (P.W.13) has clearly stated that labia majora and labia minora of the deceased Guddi Bai were found healthy and as per her opinion, there was no evidence of rape having been committed with the deceased. Learned counsel argued that the trial court has mechanically convicted accused-appellants for the offence of gang rape relying on memo of site plan and verification from the place of incident at the instance of the accused-appellants wherein the investigating officer has made detailed description of the manner in which the incident took place. Narration of the entire incident was recorded allegedly on the basis of the interrogation of the accused by the investigating officer as if it was an eye witness count. Narration of the entire incident was recorded allegedly on the basis of the interrogation of the accused by the investigating officer as if it was an eye witness count. Memo of site plan and verification of place of incident (Exhibit P-42) and also the alleged confession made by the accused-appellants therein was hit by Section 25 and 26 of the Evidence Act and could not be relied by the learned trial court to convict the accused-appellants for the offence of murder and rape. As per prosecution, alleged motive of murder of the deceased Guddi Bai and her son and rape with Guddi Bai was that her husband Shiva and the accused had jointly committed theft and robbery at certain places and Shiva did not give share of the accused- appellants in the booty. 7. Learned counsel argued that even otherwise, FSL report of the clothes of the accused as also of the deceased did not prove presence of semen. Even DNA analysis of their blood samples did not prove presence of semen of anyone of them in the vaginal swab of the deceased. Therefore, conviction of the accused-appellants for the offence of rape was absolutely without any basis. Allegation of the prosecution also had been that accused entered the house of the deceased by breaking upon the wall whereas photographs available on record show that the bricks of the broken wall were lying outside. Had the accused broken the wall from outside to enter into the house of the deceased, the bricks would have been found inside, rather than being found outside. This contradiction cannot be reconciled and therefore the offence of lurking house-trespass or house breaking by night where death or grievous hurt caused by one of the accused punishable under Section 460 IPC is not made out against the accused-appellants. It is argued that alleged offence under Section 397 IPC also cannot be held proved. 8. Learned counsel for the appellants alternatively submitted that learned trial court, while awarding penalty of death sentence, had taken into consideration gravity of offence of murder as also offence of rape together. It is argued that alleged offence under Section 397 IPC also cannot be held proved. 8. Learned counsel for the appellants alternatively submitted that learned trial court, while awarding penalty of death sentence, had taken into consideration gravity of offence of murder as also offence of rape together. There being no evidence of rape, imposition of penalty of death sentence only for the offence of murder could not be justified as in that event, present case cannot be termed as rarest of the rare case, as per the law laid down by the Supreme Court in its number of judgments, which have been recapitulated in its judgment in Ramnaresh & Others vs. State of Chhattisgarh, 2012 (1) WLC (SC) Cri. 572. In the aforesaid case, the Apex Court has converted sentence of death to that of life imprisonment. In the present case also, alternative submission is that if the conviction of the accused-appellant is sustained for other offences, sentence of death penalty should be commuted to that of life imprisonment. 9. Mrs. Sonia Shandilya, learned Public Prosecutor, on the other hand, argued that the motive for the accused-appellants for committing murder of the deceased Guddi and Rohit was fully proved as the accused were frantically searching for Shiva, husband of Guddi Bai because they were demanding their share in the looted/stolen articles from him and when they could not find him, they trespassed into her house by breaking open the wall by night. They could get only small amount of Rs. 10,000/- and looted gold and silver articles and jewellery and rapped Guddi Bai and then murdered her and her teenager son Rohit. Thus, their guilt is proved beyond reasonable doubt. Dalchand (P.W.1); Mukesh (P.W.2); Premchand (P.W.8); Vikas (P.W.9), Doli Koli (P.W. 10); Kamla Bai (P.W.12) have stated that Guddi during her lifetime told them that accused had threatened to kill her husband. In fact, Doli Koli (P.W. 10), daugther of Guddi Bai aged 16 years, who used to live with her maternal grandmother Kamla Bai (P.W.12) since her childhood, stated that Teepu and Kapil had come to her grandmother's place at Bhilwara. Teepu pointed pistol at her and told that he had already committed 15-20 murders and he would kill her and her entire family. This witness had identified Teepu in the Court as the one, who pointed gun at her. Teepu pointed pistol at her and told that he had already committed 15-20 murders and he would kill her and her entire family. This witness had identified Teepu in the Court as the one, who pointed gun at her. She also identified Kapil and stated that both of them came to her grandmother's place at Bhilwara and threatened her. Kamla Bai (P.W.12), mother of the deceased stated that her daughter told her about enmity between her husband Shiva and the accused and the accused came to her house in search of Shiva 8 days before the incident. She also identified Kapil and Teepu in the Court. 10. It is argued that four buttons of the shirt of unknown accused were recovered vide Exhibit P-14 on 06.12.2014, two of which were having white round circle with word "Fashion" inscribed on them and their colour was black whereas two of the buttons were of cream colour with pointed circle and thread. 11. Attesting witnesses of this recovery were Dalchand (P.W.1) and Mukesh (P.W.2). FSL Report (Exhibit P-127) dated 26.08.2014 proved that black buttons were missing from the shirt of Imran recovered vide Memo Exhibit P-23 and light brown (cream) colour buttons were found similar to those of the shirt recovered at the instance of accused Teepu @ Teepu Sultan vide Exhibit P-22. FSL Report (Exhibit P-122) has proved that nine cartridges of the bullets recovered from the place of occurrence were fired from the pistols recovered at the instance of the accused-appellants and also two bullets found from the dead body of Rohit @ Chapdu as per post mortem report (Exhibit P-5) and one bullet extracted from dead body of Guddi Bai as per post mortem report (Exhibit P-4) were also fired from the pistols recovered at the instance of Kapil @ Anna and Teepu @ Teepu Sultan. Gruesome, diabolic, barbaric and dastardly manner, in which the mother was raped in the sight of her teenager son and then both were murdered which brings this case in the category of rarest of rare cases fully justifying the award of death penalty. Learned Public Prosecutor, therefore, prayed that conviction and sentence of the death awarded to the accused-appellants and their conviction and sentence awarded on different counts deserves to be upheld. Learned Public Prosecutor relied upon the judgments of the Supreme Court in Ediga Anamma Vs. Learned Public Prosecutor, therefore, prayed that conviction and sentence of the death awarded to the accused-appellants and their conviction and sentence awarded on different counts deserves to be upheld. Learned Public Prosecutor relied upon the judgments of the Supreme Court in Ediga Anamma Vs. State of Andhra Pradesh (1974) 4 SCC 443 ; Machi Singh & Others Vs. State of Punjab, (1983) 3 SCC 470 ; Devendra Pal Singh Vs. State of NCT of Delhi & Another (2002) 5 SCC 234 ; Mohan Anna Chavan Vs. State of Maharashtra, (2008) 7 SCC 561 ; Prajeet Kumar Singh Vs. State of Bihar (2008) 4 SCC 434 ; State of Maharashtra Vs. Suresh, (2000) 1 SCC 471 ; Swamy Shraddananda (2) Alias Murali Manohar Mishra Vs. State of Karnataka, (2008) 13 SCC 767 ; Shivaji alias Dadya Shankar Alhat Vs. State of Maharashtra, (2008) 15 SCC 269 ; Ganesh Lai Vs. State of Rajasthan, (2002) 1 SCC 731 and Shri Bhagwan Vs. State of Rajasthan, (2001) 6 SCC 296 . 12. Arguing the appeal filed by the State, learned Public Prosecutor submitted that Section 302 IPC mandatorily requires the learned trial court to impose fine and sentence in default thereof, while awarding penalty of death sentence to the accused. Learned trial court has erred in only awarding death penalty and not fine. Learned Public Prosecutor in support of her argument relied upon the judgment of the Delhi High Court in Hari Kishore Vs. State, 1996 IAD Delhi 981. It is argued that use of words "shall also be liable to fine" would mandatorily mean that fine should be imposed in the case of death penalty. Reliance has been placed upon judgment of the Supreme Court in Zunjarrao Bhhikaji Nagarkar Vs. U.O.I. & Others decided on 06.08.1999. We have bestowed our anxious consideration to rival submissions and carefully examined the record of the case as also impugned judgment passed by the learned trial court. 13. Reliance has been placed upon judgment of the Supreme Court in Zunjarrao Bhhikaji Nagarkar Vs. U.O.I. & Others decided on 06.08.1999. We have bestowed our anxious consideration to rival submissions and carefully examined the record of the case as also impugned judgment passed by the learned trial court. 13. In so far as offence of murder under Section 302 read with Section 34 IPC; offence of robbery or dacoity with attempt to cause death or grievous hurt under Section 397 IPC and offence of lurking house trespass or house breaking by night punishable where death or grievous hurt was caused by one of them under Section 460 IPC are concerned, we find that there is ample evidence on record to prove the same which we shall discuss little later. However, we hardly find any evidence to uphold conviction of all the three accused-appellants for offence of gang rape under Section 376 (2)(g) IPC and offence under Sections 3(2)(v) and 3(l)(xii) of the Act of 1989. Only because deceased in the present case happened to be a member of Scheduled Caste community, aforesaid two accused cannot be convicted for offence punishable under the Act of 1989. We may in this connection, refer to the judgment of the Apex Court in the case of Ramdas v. State of Maharashtra, 2007 (49) AIC 418 (SC) : (2007) 2 SCC 170 for the proposition of law that to attract the harsher provisions of the Act of 1989, it must be established by the prosecution that the offence was committed on a member of S.T. community because of the fact she was a member of such community. In that case, The Supreme Court did not find any evidence on record that the deceased was murdered because he was a member of S.C. Community. Hence, applying the law declared by the Apex Court in this regard, their Lordships were of the opinion that the essential ingredients of the offence punishable under section 3(2)(v) of the Act of 1989 cannot be said to have been proved. Mere perpetration of a crime on a member of S.C. or S.T. community is not sufficient to attract aforesaid penal provision of the Act of 1989. It must also be shown that such an offence had been committed upon the deceased since he was a member of such community. Mere perpetration of a crime on a member of S.C. or S.T. community is not sufficient to attract aforesaid penal provision of the Act of 1989. It must also be shown that such an offence had been committed upon the deceased since he was a member of such community. In absence of proof of such fact, the Supreme Court was constrained to hold that the offence punishable under section 3(2)(v) of the Act of 1989 had not been established. 14. We are surprised to find that the learned trial court has extensively relied on the narration of events made by the investigating officer in Exhibit P-42 and verification of the place of incident at the instance of all the three accused. Therein, the investigating officer has made detailed narration of the manner in which the incident took place. Therein he has recorded that when the accused entered the room of the house of Shiva, they enquired from Guddi about Shiva whereupon she replied that Shiva was not there. Thereafter, they enquired about the stolen articles, whereupon she gave key of the room A-2 and told that a sum of Rs. 10,000/- was lying in the box. Imran pointed gun at Guddi Bai and her son and asked them to remain silent. Kapil and Teepu took out money from the box and then came back to Imran in Room A-3. Then they enquired about gold and jewellery articles, for which she denied. The accused then at the gun point took the gold and silver jewellery which the deceased Guddi was wearing. Then accused Imran tried to forcibly commit rape with Guddi. When Guddi objected to this, Teepu caught hold of her hands and shut her mouth by covering it with a blanket. Kapil took her son Rohit out of the room. Imran then committed rape with Guddi. Thereafter, Teepu committed rape with Guddi while Imran kept her hands caught and mouth shut. Thereafter, Imran and Teepu invited Kapil, who was standing outside, to also have sex with her. Kapil refused to do so on the pretext that he had pocks on his skin. Thereafter, Imran again forcibly committed rape with Guddi while Teepu caught hold of her hands and kept her face covered with blanket. They then tied her hands and legs by sari, while she lay on the cot. Kapil refused to do so on the pretext that he had pocks on his skin. Thereafter, Imran again forcibly committed rape with Guddi while Teepu caught hold of her hands and kept her face covered with blanket. They then tied her hands and legs by sari, while she lay on the cot. They also tied hands and legs of Rohit by another sari while he lay on iron box. When they were about to leave house of the deceased, accused Imran reminded them of a conviction in a recent murder case committed by Shankar Johar, which took place in the same colony and told his fellow accused that we should not repeat same mistake, which he did and now that Guddi and Rohit have identified them, if they remained alive, they could give evidence against them leading to their conviction and it would be better if both of them were murdered. Teepu then opened fire from place T at Guddi which hit on her shoulder. Then, Kapil caught Guddi by her hairs and opened fire on her head from place K. Guddi fell on the bed. Then Imran opened fire on Rohit from place I. He also fell on the box. Thereafter, Teepu also opened fire at Rohit from place T which hit his left shoulder from behind. Thereafter, Kapil also opened fire from place K-2 at head of Rohit. Lastly, Imran opened fire from place I-2 on the left side of cheek of Rohit @ Chapdu. Then they lifted his body and threw the same inside the box and then silently came out of the room and went away. 15. The trial court has indeed committed a serious illegality in law in relying upon the alleged confession of the accused, which would be hit by Sections 25 and 26 of the Indian Evidence Act, 1872. Section 25 of the Indian Evidence Act categorically provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 of the Indian Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. Section 26 of the Indian Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. The aforesaid confession by the accused- appellants has been made basis for their conviction for not only other offences but primarily for the offence of rape and if this confession is eschewed from consideration, there is absolutely no evidence on record to prove the offence of rape. Statement of Dr. Nidhi Jain (P.W.13), who conducted post mortem of the deceased Guddi Bai is quite significant. She stated that labia majora and labia minora of the deceased Guddi Bai was found to be healthy and as per her opinion, there was no evidence of rape having been committed with the deceased. In fact, Maxi of the deceased, which she was wearing at the time of incident and her vaginal swab along with blood sample of each of the accused were sent to State Forensic Science Laboratory and report thereof (Exhibit P- 123) merely proves that female DNA profile is present on Exhibit No. 2, i.e. Maxi of the deceased and Exhibit No. 4, her vaginal swab. Though, male DNA profile obtained from Exhibit No. 1, i.e. hair recovered from hand of the deceased matched with DNA profile of Exhibit No. 5, i.e. blood sample of Imran @ Delhi Wala and male DNA profile obtained from Exhibit No. 3, i.e. hair recovered from Maxi of the deceased matched with DNA profile of Exhibit No. 5, i.e. blood sample of Imran @ Delhi Wala and Exhibit No. 6, i.e. blood sample of Teepu @ Teepu Sultan. But it only proves that hair recovered from the hand of the deceased (Exhibit No. 1) belonged to Imran @ Delhi Wala and hair recovered from Maxi of the deceased (Exhibit No. 7) belonged to Imran @ Delhi Wala and Teepu @ Teepu Sultan. But there was no semen detected, either male or female, on Maxi or in the vaginal swab of the deceased. 16. But there was no semen detected, either male or female, on Maxi or in the vaginal swab of the deceased. 16. Furthermore, a mobile handset, a shirt, an underwear, a vest (baniyan) were recovered at the instance of accused- appellant Teepu @ Teepu Sultan @ Abid Ali vide memo Exhibit P- 22, out of which, shirt was kept in a cloth bag and marked as "2" and underwear and vest (baniyan) were kept in a cloth bag and marked as "3". Similarly, a mobile hand set of Nokia make, a shirt, an underwear and a vest (baniyan) were recovered at the instance of accused-appellant Imran @ Delhi Wala vide memo Exhibit P-23, out of which shirt was kept in a cloth bag and marked as "5" and underwear and vest were kept in a cloth bag and marked as "6". Likewise, a mobile handset of Nokia make, underwear and vest (baniyan) were recovered at the instance of accused-appellant Kapil @ Anna vide memo Exhibit P-24 and underwear and vest were kept in cloth bag and marked as "8". Communication dated 15.02.2013 along with ten articles (Exhibit P-94) was sent to Regional FSL, Kota which was received by it vide receipt dated 15.02.2013 (Exhibit P-95). Communication dated 20.02.2013 along with nine articles (Exhibit P-96) was sent to State FSL, Jaipur which was received by it vide receipt dated 21.02.2013 (Exhibit P-97). Communication dated 18.12.2012 along with six articles (Exhibit P-51) was sent to State FSL, Jaipur which was received by it vide receipt dated 19.12.2012 (Exhibit P-52). None of the aforesaid communications indicate that investigating officer attempted to send underwear of any of the accused-appellants to Forensic Science Laboratory so as to ascertain the presence of semen on them, which could have been used as a corroboratory evidence to prove offence of rape. Even though, recovery memo of maxi of the deceased Guddi Bai (Exhibit P-20) stated that it had certain hairs and marks of semen but FSL Report (Exhibit P-123) did not find any semen on it, although hairs were certainly detected on it. It is quite possible that hairs of the accused were caught by the deceased while she was struggling to save her life and in that process, some of such hairs fell on maxi, which she was wearing. It is quite possible that hairs of the accused were caught by the deceased while she was struggling to save her life and in that process, some of such hairs fell on maxi, which she was wearing. Therefore, mere presence of hairs on maxi does not lead to the inference that the deceased Guddi Bai was gang raped by three accused-appellants. In view of critical analysis of the evidence, offence of rape against the accused-appellants cannot be held to have been proved and findings recorded by the learned trial court to that effect are liable to be set aside. 17. Coming now to charge of murder under Section 302 read with Section 34 IPC against the accused-appellants, the case of the prosecution being solely founded on circumstantial evidence, motive in the present case assumes significance. Prosecution witnesses namely Dalchand (P.W.1), maternal uncle of the deceased; Mukesh (P.W.2), cousin of the deceased, Prem Chand (P.W.8), maternal uncle of the deceased, Vikas (P.W.9) cousin of the deceased; Doli Koli (P.W. 10), daughter of the deceased and Kamla Bai (P.W.12), mother of the deceased, have all proved that the deceased in her life time told them that accused had threatened to kill her husband Shiva and in fact, they were in search of Shiva because he had not given them their share of the booty of loot/theft which they committed together. In fact, Doli Koli (P.W.10) stated that accused Teepu and Kapil came to the place of her grandmother Kamla Bai (P.W.12) where she used to reside, enquiring about her father Shiva and uttering that they have already committed murder of 15-20 persons and threatened to kill her and her parents and brother. Kamla Bai (P.W.12) stated that her daughter Guddi Bai used to tell her that she had danger to her life from accused Kapil and Teepu, as their relations with her husband Shiva were inimical. Kamla Bai (P.W.12) further stated that these accused came to her house 8-10 days before the incident and enquired about Shiva. All this evidence thus proved the motive of the accused, which although may not be substantive piece of evidence against the accused but nonetheless it certainly can lend corroboration to other incriminating evidence against the accused. 18. Dr. Ashok Mundra (P.W.11) and Dr. Nidhi Jain (P.W.13) were the members of medical board, which conducted post mortem of the deceased Guddi Bai and Rohit. 18. Dr. Ashok Mundra (P.W.11) and Dr. Nidhi Jain (P.W.13) were the members of medical board, which conducted post mortem of the deceased Guddi Bai and Rohit. As per post mortem Report of Guddi Bai (Exhibit P-4), injury no. 1 was fire arm entry wound IV2 x 1 cm x through and through on left temporal parietal region. This wound was passing forward, towards right hand parallel. There was exit wound 2x2 cm on right parieto temporal region. Injury no.2 was fire arm entry wound IV2 x 1 cm x through and through on left arm upper lately margins abraded with tattooing and blackening. There was exit wound on left arm size 1x1 cm. Then again there was entry wound 1x1 cm on left side of chest. This wound was passing downwards posterior and towards right side. There was through and through wound a left lung in wound track. The bullet passing back side of heart and vertebral column and bullet recovered under skin on right side of chest. As per medical board, cause of death of Guddi Bai was shock as a result of ante mortem head injury with left lung injury sufficient to cause death in ordinary course of nature. As per post mortem report of Rohit (Exhibit P-5), injury no. 1 was fire arm entry wound 11/2 x 1 cm x through and through on left parito temporal region margins abraded with blackening, tattooing and signing of hairs. Margins were inverted. This wound was passing towards right parallel and having fire arm exit wound on right side with size 2x2 cm margins averted with bleeding. Injury no. 2 fire arm entry wound 1/ x 1 cm x through and through on left cheek. This wound was passing downwards and bullet was present there. Injury no. 3 was fire arm entry wound with blackening tattooing present on back of chest of left side. Bullet was found therein. As per medical board, cause of death of Rohit was shock as a result of ante mortem head injury and left lung injury, which was sufficient to cause death in ordinary course of nature. While one bullet was recovered from the dead body of Guddi Bai, two bullets were recovered from the dead body of Rohit. 19. As per medical board, cause of death of Rohit was shock as a result of ante mortem head injury and left lung injury, which was sufficient to cause death in ordinary course of nature. While one bullet was recovered from the dead body of Guddi Bai, two bullets were recovered from the dead body of Rohit. 19. Six empty cartridges and two unused bullets were recovered from the place of occurrence vide memo Exhibit P-12 on 06.12.2012, which were kept in a bottle and sealed and marked as "G". One blood stained bullet was recovered from bronze bowl kept beneath the head of Rohit vide Exhibit P-9 on 06.12.2012, which was kept in plastic polythene and bottle and marked as "D". Blood was taken on cotton gauze from bronze bowl kept beneath the head of Rohit vide Exhibit P-10 and sealed in clothe and marked as "E". Blood of the deceased Guddi and blood of deceased Rohit was taken on two cotton gauzes vide Exhibit P-8, which were sealed and marked as "B" and "C" respectively. Two sarees that were used to tie hands and legs of the deceased were recovered vide memo Exhibit P-7 on 06.12.2012 and kept in a cloth bag and marked as "A". Blood stained orange colour petticoat was recovered vide memo Exhibit P-11 and kept in a cloth bag and marked as "F". Blood stained piece of floor and sample piece of floor were lifted from the place of occurrence vide memo Exhibit P-13 on 06.12.2012 and kept in separate cloth bags and marked as "H" and "I" respectively. Four buttons of the shirt of unknown accused were recovered, which were found at the place of incident and sealed in a cloth bag vide Exhibit P-14 on 06.12.2012 and marked as "J". Two buttons were of black colour on which round circle was made and word "Faishon" was inscribed. Two buttons were of cream colour having printed circle and thread. Four hairs were seized from the hands of the deceased Guddi vide memo Exhibit P-18 on 07.12.2012 and kept in bottle and marked as "P". Blood stained bedding of the deceased Guddi Bai was seized on 07.12.2012 vide memo Exhibit P-19 and marked as "Q". Two buttons were of cream colour having printed circle and thread. Four hairs were seized from the hands of the deceased Guddi vide memo Exhibit P-18 on 07.12.2012 and kept in bottle and marked as "P". Blood stained bedding of the deceased Guddi Bai was seized on 07.12.2012 vide memo Exhibit P-19 and marked as "Q". Blood stained orange brown colour maxi of the deceased Guddi Bai was sealed on 07.12.2012 vide memo Exhibit P-20 and kept in a cloth bag and marked as "R" and semen and hairs on it were marked as "D". Dal Chand (P.W.1) and Mukesh (P.W.2) are attesting witnesses of recovery memos Exhibit P-7 to Exhibit P-14 and Fakir Chand (P.W.6) and Ramesh Chand (P.W.17) are attesting witnesses of recovery memos Exhibit P-18 to Exhibit P-20 and they have supported aforesaid recoveries. 20. A mobile handset, a shirt, an underwear, a vest (baniyan) were recovered at the instance of accused-appellant Teepu @ Teepu Sultan vide memo Exhibit P-22 out of which shirt was kept in a cloth bag and marked as "2" and underwear and vest (baniyan) were kept in a cloth bag and marked as "3". Similarly, a mobile hand set of Nokia make, a shirt, an underwear and a vest (baniyan) were recovered at the instance of accused- appellant Imran @ Delhi Wala vide memo Exhibit P-23, out of which shirt was kept in a cloth bag and marked as "5" and underwear and vest were kept in a cloth bag and marked as "6". Likewise, a mobile handset of Nokia make, underwear and vest (baniyan) were recovered at the instance of accused-appellant Kapil @ Anna vide memo Exhibit P-24 and underwear and vest were kept in cloth bag and marked as "8" Ramesh Chand (P.W. 17) and Sunder Singh (P.W.33) are attesting witnesses of recovery memos Exhibit P-22 to Exhibit P-24 and they have supported aforesaid recoveries. A country made pistol as well as gold and silver jewellery were recovered at the instance of accused Kapil @ Anna on 13.12.2012 vide memo Exhibit P-44. While country made pistol was sealed and marked as "c", gold and silver jewellery were sealed and marked as "l". A country made pistol along with two live cartridges and gold and silver jewellery were recovered at the instance of accused Imran @ Delhi Wala on 13.12.2012 vide memo Exhibit P-45. While country made pistol was sealed and marked as "c", gold and silver jewellery were sealed and marked as "l". A country made pistol along with two live cartridges and gold and silver jewellery were recovered at the instance of accused Imran @ Delhi Wala on 13.12.2012 vide memo Exhibit P-45. While country made pistol and two live cartridges were sealed and marked as "n", gold and silver jewellery were sealed and marked as ";". A country made pistol and gold and silver jewellery and articles were recovered at the instance of accused Teepu @ Teepu Sultan @ Abid Ali on 14.12.2012 vide memo Exhibit P-46. While country made pistol was sealed and marked as "j", gold and silver jewellery and articles were sealed and marked as "y". Ramesh Chand (P.W.17) and Lokesh Kumar (P.W.20) are attesting witnesses of recovery memos Exhibit P-44 to Exhibit P-46 and they have supported aforesaid recoveries. 21. All the aforesaid articles were deposited in malkhana in sealed condition, which is evident from the entries made in malkhana register. Kesariya Singh (P.W.30) has stated that he was posted as malkhana incharge at Udyog Nagar Police Station on 06.12.2012 and all the aforesaid articles were received by him in sealed condition and entered in the malkhana register, copies of which were placed on record as Exhibit P-98A to Exhibit P-103A. Jagdish Prasad (P.W.29), Constable has proved that number of articles were deposited by him with Forensic Science Laboratory and their receipts were Exhibit P-95 and Exhibit P-97. Ram Kishore (P.W.21) has proved that number of articles were deposited by him with Forensic Science Laboratory, Jaipur and their receipt was Exhibit P-52. Bishan Chand (P.W.24) is the armourer, who examined three pistols, which were recovered from the accused-appellants and his report was Exhibit P-61, which proved that all the three psitols were in serviceable condition and fit to fire. Ram Kalyan (P.W.34), investigating officer has proved recovery memo of hairs of the accused from the fist of the deceased Guddi Bai vide memo Exhibit P-18 on 07.12.2012. Attesting witnesses thereto namely Fakir Chand (P.W.6) and Ramesh Chand (P.W.17) both have supported the same. 22. FSL Report (Exhibit P-122) dated 16.04.2013 proves that nine articles enclosed within cloth, plastic container and glass bottle were received in proper sealed condition bearing impressions which tallied with the specimen seal impression forwarded. Attesting witnesses thereto namely Fakir Chand (P.W.6) and Ramesh Chand (P.W.17) both have supported the same. 22. FSL Report (Exhibit P-122) dated 16.04.2013 proves that nine articles enclosed within cloth, plastic container and glass bottle were received in proper sealed condition bearing impressions which tallied with the specimen seal impression forwarded. It further proves that three 7.65 mm country made pistols from packets 'c', 'n' and 'j' were serviceable firearms and three 7.65 mm bullets recovered from the dead body of Guddi Bai and Rohit were fired from 7.65 mm country made pistol from packet V, which was recovered at the instance of Kapil @ Anna. The examination of barrels residues indicated that three firearms were fired but their definite time of their last fire could not be ascertained. Further, on comparison and microscopic examinations, it was opined that two 7.65 mm K.F. cartridges (C/1 and C/2) from packet G were fired from 7.65 mm country made pistol from packet 'j', which was received at the instance of Teepu @ Teepu Sultan @ Abid Ali. Two 7.65 mm cartridges cases from packet G were fried from 7.65 mm country made pistol from packet 'n', which was recovered at the instance of Imran @ Delhi Wala; Two 7.65 mm K.F. Cartridges cases from packet G were fired from 7.65 mm country made pistol from packet 'c', which was recovered at the instance of Kapil @ Anna. It was opined that three 7.65 mm bullets(B/1, B/2 and B/6) from packet D, G and B (Rohit) were fired from 7.65 mm country made pistol from packet 'j', which was recovered at the instance of Teepu @ Teepu Sultan @ Abid Ali and three 7.65 mm bullets (B/3, B/4 and B/5) from packets G, B (Smt. Guddi Bai) and A (Sh. Rohit) were fired from 7.65 mm country made pistol from packet 'c', which was recovered at the instance of Kapil @ Anna. The evidence, thus, categorically proves use of all the three firearms recovered from each one of the accused. 23. FSL Report (Exhibit P-123) dated 07.06.2013 proves that six articles were received in proper sealed condition bearing impressions which tallied with the seal sample forwarded. It further proves that female DNA profile was present on exhibit No. 2 (maxi of the deceased Guddi Bai) and Exhibit No. 4 (vaginal swab of Guddi Bai). 23. FSL Report (Exhibit P-123) dated 07.06.2013 proves that six articles were received in proper sealed condition bearing impressions which tallied with the seal sample forwarded. It further proves that female DNA profile was present on exhibit No. 2 (maxi of the deceased Guddi Bai) and Exhibit No. 4 (vaginal swab of Guddi Bai). Male DNA profile obtained from Exhibit No. 1 (hair recovered from hand of deceased Guddi Bai) matched with DNA profile of Exhibit No. 5 (blood sample of Imran @ Delhi Wala). Further male DNA profile obtained from Exhibit No. 3 (hair recovered from maxi) matched with DNA profile of Exhibit No. 5 (blood sample of Imran @ Delhi Wala) and Exhibit No. 6 (Blood sample of Teepu @ Teepu Sultan). FSL Report (Exhibit P-124) dated 18.02.2014 proves that ten packets (B, C, E, F, H, I, J, Q, 2 and 5) were received in proper sealed condition bearing impressions which tallied with the specimen seal impression forwarded. However, Exhibit No. 5 (from H Packet); Exhibit No. 6 (from I Packet) and Packets J, 2 and 5 were forwarded to physics division in sealed condition for necessary examination. It further proves presence of human blood on swab in packet marked B and C; parat; petticoat, piece of blood stained floor and bedding (bistar). FSL Report (Exhibit P-127) proves that five packets were received in proper sealed condition bearing impressions which tallied with the specimen seal impression forwarded. It further proves that black colour buttons exhibit J/1 and J/2 were similar to the buttons exhibits 5/2 to 5/10 intact on the shirt, exhibit 5/1 in respect of colour, design, size and other physical properties, which was the shirt of accused-appellant Imran @ Delhi Wala recovered vide Exhibit P-23. Similarly, light brown colour buttons exhibits J/3 and J/4 were similar to buttons exhibits 2/2, 2/4 to 2/11 found intact on shirt exhibit 2 in respect of color, shade, design, size and other physical properties, which the shirt recovered at the instance of accused-appellant Teepu @ Teepu Sultan @ Abid Ali vide Exhibit P-22. Recoveries of gold and silver articles were made from each of the accused-appellants namely Kapil @ Anna, Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali vide Exhibits P-44 to Exhibit P-46 respectively, which have been proved by Ramesh Chand (P.W.17), Lokesh Kumar (P.W.20) and Sanjay Gupta (P.W.32). 24. Recoveries of gold and silver articles were made from each of the accused-appellants namely Kapil @ Anna, Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali vide Exhibits P-44 to Exhibit P-46 respectively, which have been proved by Ramesh Chand (P.W.17), Lokesh Kumar (P.W.20) and Sanjay Gupta (P.W.32). 24. The District Magistrate, R.K. Jaisawal (P.W.31) has proved issuance of sanction of prosecution in exercise of his powers under Section 39 of the Arms Act vide Exhibit P-62 against accused-appellant Kapil @ Anna, Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali on the basis of report of armourer (Exhibit P-61), which has been proved by Bishan Chand (P.W.23). Although, the trial court at page no. 84 of its judgment has recorded finding of conviction of each of the three accused- appellants for offence under Section 3/25 of Arms Act but it passed the final order of conviction with regard to aforesaid offence only against Kapil @ Anna and inadvertently, did not record any such finding against remaining two accused-appellants Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali, especially when the trail court has passed the order of sentence under Section 3/25 of Arms Act against all the three accused-appellants. Therefore, we also hold accused-appellant Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali guilty of offence punishable under Section 3/25 of Arms Act. 25. Aforesaid discussion clearly shows that charges for offences under Section 302 read with 34, 460, 397 or in alternative 397 read with Section 34 IPC and Section 3/25 Arms Act were proved against the accused-appellants beyond reasonable doubt. However, charges for offence under Section 376 (2) (g) IPC against all the three accused-appellants and Sections 3(1)(xii) and 3(2)(v) of the Act of 1989 against accused- appellants Imran @ Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali are not proved and they are acquitted of those charges. 26. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. 26. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. In what kind of cases sentence of death should be awarded has been subject matter of discussion in various judicial pronouncements so much so the guidelines that were laid down by the Supreme Court in Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 , while upholding the validity of Section 302 of the IPC (which authorizes imposition of penalty of death sentence), while concurring with the view expressed by it in earlier judgment in Ediga Annamma Vs. State of Andhra Pradesh, (1974) 4 SCC 443 , are adhered to till date, which are that (i) extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, and (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. 27. Those principles that were laid down by the Supreme Court in Bachan Singh's case, supra, were best summarized in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 , in Para 38 of the judgment therein, which we reproduce as under:- "38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singhs case (supra): (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 28. The Supreme Court in Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles on this aspect by revisiting Bachan Singhs case, supra, and Machhi Singhs case, supra, observed in Para 58 as under:- "58. From Bachan Singhs case (supra) and Machhi Singhs case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning1 or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community." 29. In Rameshbhai Chandubhai Rathod Vs. State of Gujarat, (2009) 5 SCC 740 , judgment of High Court confirming death sentence awarded to the appellant was challenged before the Supreme Court. The appellant in that case was convicted for offence under Sections 363, 366, 376, 397 and 302 of the IPC. The matter was laid before two-Judges bench of the Supreme Court. The Honble Judges though upheld conviction of the accused but differed on the question of sentence with only one of them concurring with the judgment of the High Court confirming death penalty, another Hon'ble Judge observing that instead of death sentence, sentence of rigorous imprisonment for life will meet the ends of justice. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat, (2011) 2 SCC 764 , answered the reference by favouring life imprisonment. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat, (2011) 2 SCC 764 , answered the reference by favouring life imprisonment. In doing so, their Lordships concurred with the view expressed in earlier two Supreme Court judgments, namely, Ramraj Vs. State of Chhattisgarh, (2010) 1 SCC 573 and Mulla and Another Vs. State of Uttar Pradesh, (2010) 3 SCC 508, and held that death sentence awarded to the accused shall stand commuted to life imprisonment which shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 30. The Supreme Court in Machhi Singh's case, supra, while following its earlier dictum in Bachan Singh's case, supra, held that life imprisonment is the rule and death sentence is an exception, to which guidelines we have already made reference hereinabove. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. We reproduce hereunder Para 33 and 34 of the judgment of Supreme Court in Machhi Singh, supra, in extenso:- "I. Manner of Commission of Murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland." 31. The Supreme Court in Swamy Shraddananda Vs. State of Karnataka, AIR 2008 SC 3040 , was dealing with a case of murder convict and stated that the Court may find that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence, but, at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment which, subject to remission, normally works out to a term of 14 years, would be grossly disproportionate and inadequate. The Supreme Court held that in such a case, a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years imprisonment and death. The Court, therefore, can substitute a death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. The Supreme Court, therefore, in that case, while commuting the death sentence, directed that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order. 32. Neel Kumar @ Anil Kumar Vs. State of Haryana, (2012) 5 SCC 766 , was a case where accused was convicted for rape and murder of his four year old daughter. 32. Neel Kumar @ Anil Kumar Vs. State of Haryana, (2012) 5 SCC 766 , was a case where accused was convicted for rape and murder of his four year old daughter. In the facts and circumstances of that case, the Supreme Court did not find the same to be a rarest of rare case. Considering, however, the nature of the offence, age and relationship of the victim with the convict and gravity of injuries caused to the victim, the Supreme Court also did not find that to be a fit case to award lenient punishment to the convict and he was sentenced for a term of 30 years without remission before consideration of his case for premature release. 33. In Shankar Kisanrao Khade Vs. State of Maharashtra, 2013 CrLJ 2595 , the death sentence was commuted to life imprisonment with a direction that he shall not be released for rest of his life. That was a case of repeated rape and sodomisation and then murder by strangulation of a minor girl of 11 years with intellectual disability by a men of 52 years. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and that special reasons are required to be recorded for awarding death sentence but no special reasons are required to be recorded for awarding life imprisonment. Death sentence awarded to the caused was commuted to life imprisonment with direction that he shall not be released for rest of his life. 34. We find that the circumstances of this case are not such where the act of the accused can be said to be a case of such extreme culpability where, having regard to the nature of those circumstances, the life imprisonment would be altogether inadequate punishment. When we draw a balance sheet of all the aggravating circumstances as against mitigating circumstances of this case, we rather feel more inclined to award the sentence of life imprisonment than to award death penalty. 35. The Supreme Court in Mohan Anna Chavan (supra) held that for deciding just and appropriate sentence to be awarded, balance sheet of aggravating and mitigating circumstances, in which crime has been committed, has to be drawn up on the basis of relevant circumstances. 35. The Supreme Court in Mohan Anna Chavan (supra) held that for deciding just and appropriate sentence to be awarded, balance sheet of aggravating and mitigating circumstances, in which crime has been committed, has to be drawn up on the basis of relevant circumstances. Learned trial court in the present case, while drawing up balance sheet of aggravating and mitigating circumstances, has taken into consideration the offence of gang rape along with offence of murder, lurking house-trespass or house breaking by night punishable where death or grievous hurt caused by one of the accused and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and on that basis has chosen the extreme penalty of death in the range of choice between life imprisonment and death penalty. Since in view of aforesaid discussion, we find that charge of gang rape against the accused-appellant has not been proved and on that charge, equilibrium of the balance sheet of aggravating and mitigating circumstances in the present case would stand disturbed inasmuch as charge of murder alone would not bring the case in the category of rarest of rare case for which death penalty has to be awarded. Had the trial court originally convicted appellants only for the offence of murder along with other offences, but not for the offence of gang rape, it would not have possibly preferred to award extreme penalty of death. Therefore, in our considered view, present case does not qualify the test of being "rarest of rare cases" and therefore, we commute the death sentence to that of life imprisonment. As regards appeal filed by the State of Rajasthan questioning the non-imposition of fine while awarding death penalty by the trial court, since we have decided to convert the death penalty to life imprisonment, we deem it appropriate to also impose fine on the accused- respondents. 36. While answering the reference accordingly, we partly allow Criminal Appeal Nos. 2256/2017 and 2257/2017 filed by the accused-appellants and death sentence awarded by the trial court to the accused-appellants Kapil @ Anna, Imran Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali under Section 302 read with Section 34 IPC vide judgment and order dated 07.11.2017 is commuted to that of life imprisonment. Additionally, each of the appellants shall be liable to fine of Rs. Additionally, each of the appellants shall be liable to fine of Rs. 5,000/-, in default of payment thereof, they shall further undergo sentence of rigorous imprisonment of one year each. Conviction and sentence of all the three accused-appellants Kapil @ Anna, Imran Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali for offence under Section 376(2) (g) IPC is set aside and they are acquitted of that charge. Conviction and sentence of the accused-appellants Imran Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali for offences under Sections 3(1)(xii) and 3(2)(v) of the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also set aside and they are acquitted of those charges. However, conviction and sentence awarded to the accused-appellants Kapil @ Anna, Imran Delhi Wala and Teepu @ Teepu Sultan @ Abid Ali under Sections 397 and 460 IPC as also Section 3/25 of Arms Act is maintained. Criminal Appeal No. 13/2018 filed by the State of Rajasthan is allowed in the term indicated above.