JUDGMENT : OM PRAKASH, J. Abbreviations used First Information Report - (FIR) Indian Penal Code - (IPC) Criminal Procedure Code (Cr.P.C.) Recovery Memo (R.M.) 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 10.11.2016 passed by Additional Sessions Judge/Special Judge, E.C. Act, Mirzapur in Session Trial No. 126 of 2011 (State Vs. Sangam Pasi and others); Session Trial No. 129 of 2011 (State Vs. Sangam) and Session Trial No. 130 of 2011 (State Vs. Khunni @ Ram Prasad) convicting and sentencing accused appellants namely Sangam, Puddi Pasi, Sanjay Dubey @ Panda for the offence under Section 302/34 IPC with death punishment and fine of Rs. 25,000/- each and the same will be paid to the informant Smt. Sheela Devi as compensation and in the event of non payment of fine appellants have to go undergo two years' simple imprisonment. 2. Vide impugned judgment and order dated 10.11.2016 passed by Additional Sessions Judge/Special Judge, E.C. Act, Mirzapur in S.T. No. 126 of 2011 (State of U. P. Vs. Sangam Pasi and others), S.T. No. 129 of 2011 (State of U.p. Vs. Sangam) and S.T. No. 130 of 2011 (State of U.P. Vs. Khunni alias Ram Prasad) accused Khunni Yadav and Haleem were acquitted of charges under Sections 302/34 IPC and 302 IPC read with Section 120-B IPC and accused appellants Sanjai Dubey @ Panda, Puddi Pasi, Sangam Pasi, Khunni @ Ram Prasad were also acquitted of the charges under Section 3/25/27 Arms Act. Against their acquittal, an appeal on behalf of State, being Government Appeal No. 808 of 2017, has been preferred, which is connected with this Capital Case. 3. Prosecution story in nutshell, as unfolded in the written report (Ext. Ka-1), are as follows: 4. Informant Smt. Sheela Devi, P.W.-1 wife of Brij Lal Maurya, resident of Amrawati, Police Station Vindhyachal, district Mirzapur moved written report dated 25.4.2011 mentioning therein that in the intervening night of 24/25.4.2011 at about 12.30 hrs. villagers Sangam, Puddi Pasi with whom she had old enmity along with co-accused Sanjay Dubey @ Panda and some unknown person committed murder of Chulbul and Nagendra, father-in-law and son respectively of informant causing fire arm injury. Written report (Ext. Ka-1) further shows that accused Sangam opened fire upon the husband of informant and accused Puddi Pasi opened fire upon father-in-law of informant. Written report (Ext. Ka-1) further shows that accused Sangam opened fire upon the husband of informant and accused Puddi Pasi opened fire upon father-in-law of informant. Deceased Nagendra was done to death by accused appellant Sanjay Dubey @ Panda. It is also mentioned that accused persons were continuously making fire and by extending threat asked about Ram Bali, brother-in-law (Devar) of informant, then she told that Ram Bali is not present in the house. On hearing fire, hue and cry made by informant, Ram Bali, brother-in-law of informant, who was sleeping inside the house came out then all the accused persons fled away towards the northern side of the field. It is also disclosed in the written report (Ext. Ka-1) that informant identified the assailants in the electric light. Informant's husband was sleeping in "khaprail" house. Chulbul and Nagendra were sleeping on the platform and "thelia". Leaving dead bodies of deceased persons at the place of occurrence informant reached at the Police Station concerned and moved Ext. Ka-1 with the request to take action against assailants. It is also mentioned that incident was witnessed by neighbours also. People were frightened. Written report (Ext. Ka-1) was scribed by one Dilip Kumar Maurya. 5. On the basis of written report (Ext. Ka-1) on 25.4.2011 at about 1 A.M. chik FIR no. 53 of 2011 at crime no. 202 of 2011 under Section 302 IPC and Section 7 Criminal Law Amendment Act was registered at Police Station concerned against the accused appellants Sangam, Puddi Pasi, Sanjay Dubey @ Panda and one unknown person. G.D. Entry (Ext. Ka-6) was also made on the same day on the basis of chik FIR (Ext. Ka-5). 6. Investigation commenced. Ram Naresh Yadav, Investigating Officer (P.W.-6) after receiving information through R.T. set reached at the place of occurrence where all the relevant documents were provided to him by other police personnel of the Police Station concerned. One S. I. Subhash Chand along with other police personnel also reached there. Investigating Officer copied chik FIR in the case diary. Since it was night hour inquest proceeding could not be done but Investigating Officer tried to search the accused persons. He had also given information to the higher authorities and interrogated the informant, copied her statement in the case diary. Inquest report of deceased Brij Lal Maurya Ext. Investigating Officer copied chik FIR in the case diary. Since it was night hour inquest proceeding could not be done but Investigating Officer tried to search the accused persons. He had also given information to the higher authorities and interrogated the informant, copied her statement in the case diary. Inquest report of deceased Brij Lal Maurya Ext. Ka-9 along with other relevant documents Ext.Ka-10 to Ka-15, inquest report of deceased Chulbul Ext. Ka-16 along with other relevant documents Ext. Ka-17 to Ka-22, inquest report of deceased Nagendra Ext.Ka-23 along with other relevant documents Ext. Ka.-24 to Ka-29 were prepared by the S.I. Subhash Chand. All the dead bodies were kept in sealed cloths preparing sample seals and were dispatched for post mortem. 7. Investigating Officer has also prepared site plan (Ext. Ka-30) after inspecting the place of occurrence on pointing out of the informant. He has also recovered blood stained and plain earth and two used cartridges of 12 bore near the dead body of Chulbul and keeping them separately in sealed boxes and also preparing the sample seal recovery memo Ext. Ka-31 and Ka-32 were prepared. Blood stained and plain earth near the dead body of deceased Nagendra was also taken into custody by Investigating Officer concerned and keeping them in sealed boxes and preparing sample seal recovery memo Ext. Ka-33 was prepared. Blood stained cloth near the body of deceased Nagendra was also taken into custody by Investigating Officer and keeping it in sealed bundle, sample seal and memo were also prepared. One used cartridge of 12 bore was also recovered near the dead body of Nagendra and keeping it in sealed box sample seal and recovery memo (Ext. Ka-34) were prepared. Blood stained and plain earth and two empty cartridges of 12 bore were also recovered before the witnesses near the dead body of Brij Lal Maurya and keeping them in sealed bundle sample seal and recovery memo (Ext. Ka-35 and Ka-36) were prepared. 8. Post mortem on the dead body of Chulbul was conducted on 25.4.2011 at 4.15 P.M.. On general examination deceased was found to be aged about 70 years. Probable time since death was half day old and he was average body built. Rigor mortis was present. Eyes were closed. On internal examination of the body following anti mortem injuries were found : 1. On general examination deceased was found to be aged about 70 years. Probable time since death was half day old and he was average body built. Rigor mortis was present. Eyes were closed. On internal examination of the body following anti mortem injuries were found : 1. Entry wound of 4 cm x 3 cm on right cheek 4 cm away from right ear and burn injury (sign) of 9 cm x 5 cm on right cheek. 2. Entry wound 5 cm x 3 cm on right scapula In the small intestine pasty material and gases and in the large intestine fecal material and gases were found. In the opinion of Doctor cause of death was shock and hemorrhage due to anti mortem injuries. Post mortem report was prepared by Dr. Santosh Kumar Singh as Ext. Ka-2. 9. On 25.4.2011 at 3.45 P.M. post mortem on the dead body of Nagendra was also conducted. On general examination he was found to be aged about 15 years. Probable time since death was half day. He was average body built. Rigor mortis was present in both limbs. Eyes were closed. Membrance and brain were congested. On internal examination following anti mortem injuries were found: 1. Entry wound of 2 cm x 2 cm on left cheek 2.5 cm below left ear burn sign of 8 cm around injury. 2. Exit wound of 4 cm x 3 cm on right side of neck 7 cm below right ear. 10. In the small intestine pasty material and gases and in the large intestine fecal material and gases were found. In the opinion of Doctor cause of death was shock and hemorrhage due to anti mortem injuries. Post mortem report was prepared by Dr. Santosh Kumar Singh as Ext. Ka-3. 11. On 25.4.2011 itself post mortem on the dead body of Brij Lal Maurya was conducted at 4.35 P.M. On general examination he was 45 years old. Probable time of death was half day. He was average body built. Rigor mortis was present in both limbs. Eyes were closed. Membrance was congested. In the internal examination following anti mortem injuries were found: 1. Entry wound of 8 cm. x 3 cm on right cheek 5 cm below right ear. 2. Burn sight of 6 cm x 5 cm around mouth. 3. He was average body built. Rigor mortis was present in both limbs. Eyes were closed. Membrance was congested. In the internal examination following anti mortem injuries were found: 1. Entry wound of 8 cm. x 3 cm on right cheek 5 cm below right ear. 2. Burn sight of 6 cm x 5 cm around mouth. 3. Multiple wound of entry on right lateral chest 12 cm x 13 cm, 12 cm away from right nipple. 4. Entry wound of 6 cm x 3 cm, 3 cm away from left nipple. 5. Lacerated wound of 9 cm x 9 cm on the joint of left elbow. 6. Entry and exit wound on middle finger and ring finger of right hand. In the small intestine pasty material and gases and in the large intestine fecal material and gases were found. In the opinion of Doctor cause of death was shock and hemorrhage due to anti mortem injuries. Post mortem report was prepared by Dr. Santosh Kumar Singh as Ext. Ka-4. 12. On 26.4.2011 Investigating Officer has made search of the accused persons and recorded statement of witnesses Prem Chand Bind and Ram Bali Maurya under Section 161 Cr.P.C. On 27.4.2011 Investigating Officer has recorded statement of Head Moharrir Lallan Singh and on the information of informer arrested accused appellant Sanjay Dubey @ Panda who on query confessed his guilt admitting that he along with co-accused have committed present offence in the intervening night of 24/25.4.2011. He also disclosed that he can get the weapon recovered said to have been used by him in commission of crime. Investigating Officer has also recovered one country made pistol 12 bore and one cartridge on pointing out of accused Sanjay Dubey @ Panda from his hut. Keeping the recovered weapon in sealed bundle preparing sample seal R.M. (Ext. Ka-37) was prepared. On the basis of aforesaid recovery offence under Section 3/25 of Indian Arms Act was also added. Investigating Officer has also interrogated the witnesses of recovery and prepared site plan of place of recovery. Other witnesses were also interrogated by Investigating Officer. On 2.5.2011 on the information of informer accused appellant Sangam Pasi, Khunni @ Ram Prasad and Halim were arrested near Vijay Pura Pahari. One country made pistol of 12 bore and one live cartridge were recovered from the possession of the accused Sangam Pasi. Other witnesses were also interrogated by Investigating Officer. On 2.5.2011 on the information of informer accused appellant Sangam Pasi, Khunni @ Ram Prasad and Halim were arrested near Vijay Pura Pahari. One country made pistol of 12 bore and one live cartridge were recovered from the possession of the accused Sangam Pasi. One country made pistol of 12 bore along with two live cartridges were also recovered from the possession of accused Khunni @ Ram Prasad. Investigating Officer has also recovered some currency notes from the possession of co-accused Halim. All the weapons, cartridges and currency notes said to have been recovered from the possession of the accused were kept in sealed cloths and preparing sample seals recovery memo (Ext. Ka-39) was prepared. Accused were also taken into custody through Ext. Ka-40. It also appears that on the basis of recovery memo separate crime no. 225 of 2011 under Section 3/25 Arms Act, crime no. 226 of 2011 under Section 3/25 Arms Act against co-accused Sangam Pasi and Khunni @ Ram Prasad were also registered at Police Station concerned and the said FIR is Ext. Ka-7. G.D. entry was also made as (Ext. Ka-8). Investigating Officer has also copied the post mortem report and recorded statement of Doctor concerned who conducted the post mortem on the dead body of the deceased. Since accused Puddi Pasi surrendered before the Court concerned, Investigating Officer recorded his statement in District Jail on 11.5.2011. Investigating Officer has also obtained sanction from concerned District Magistrate to prosecute accused Sangam Pasi, Sanjay Dubey @ Panda and Khunni @ Ram Prasad as Ext. Ka-48, Ext. Ka-49 and Ext. Ka-50. He has also recorded statement of witnesses of recovery and arrest and also sent the recovered blood stained earth, plain earth, weapons and clothes on the basis of order passed by the concerned Magistrate for forensic examination through Ext. Ka-41. Site plan prepared in the matter are Ext. Ka 30, 38 and 41. It also appears that after fulfilling entire formalities charge sheets against accused Sangam Pasi, Puddi Pasi, Khunni @ Ram Prasad, Sanjay Dubey @ Panda were submitted separately by the Investigating Officer as Ext. Ka-42, Ka-46 and Ka-47. 13. Cognizance was taken on all the charge sheet by the concerned Magistrate. Since charge sheets submitted for the offence under Section 3/25/27 Arms Act were also related to accused of charge sheet (Ext. Ka-42) of crime no. Ka-42, Ka-46 and Ka-47. 13. Cognizance was taken on all the charge sheet by the concerned Magistrate. Since charge sheets submitted for the offence under Section 3/25/27 Arms Act were also related to accused of charge sheet (Ext. Ka-42) of crime no. 202 of 2011 hence all the cases were committed to the Court of Sessions for trial. It is also clarified that Sessions Court tried all the cases together being related to same accused persons and part of the same transaction consolidating all the Sessions Trial along with S.T. No. 126 of 2011. 14. Accused persons appeared. Prosecution opened its case describing all the evidence collected by Investigating Officer during investigation and the evidence proposed to be adduced against the accused persons during trial. Trial Court also heard accused side and on 11.11.2011 framed charge for the offence under Section 302 read with Section 34 IPC and Section 7 Criminal Law Amendment Act against accused persons Sangam Pasi, Puddi Pasi, Sanjay Dubey @ Panda, Khunni @ Ram Prasad and against accused Halim charge for the offence under Section 302 read with Section 120-B IPC. On the same day charge for the offence under Section 3/27 Arms Act against accused Puddi Pasi, Sanjay Dubey @ Panda and Khunni @ Ram Prasad were also framed separately. All the charges were read over to accused persons to which they denied and pleading not guilty claimed their trial. It also appears that on 24.5.2012 by passing specific order charges already framed in the matter were modified as under Section 302 read with Section 149 IPC in place of offence under Section 302 read with Section 34 IPC and Section 3/25/27 Arms Act in place of Section 3/27 Arms Act. Modified charges were also read over to the accused persons to which they denied and pleading not guilty again claimed their trial. 15. In order to prove its case prosecution in total examined eight witnesses. Out of them P.W.-1 Smt. Sheela Devi, informant who claimed herself to be an eye witness of the incident and is the wife of deceased Brij Lal Maurya; P.W.-2 Nisha who also claimed herself to be an eye account witness is the wife of brother of deceased Brij Lal Maurya. P.W.-3 Dr. Santosh Kumar Singh, who has conducted Post Mortem on the dead bodies of the deceased and have proved post mortem report as Ext. P.W.-3 Dr. Santosh Kumar Singh, who has conducted Post Mortem on the dead bodies of the deceased and have proved post mortem report as Ext. Ka-2 to Ka-4; P.W.-4 chik writer Lallan Singh; P.W.-5 Dileep Kumar Maurya, who has prepared written report Ext. Ka-1; P.W.-6 Ram Naresh Yadav, Investigating Officer; P.W.-7 S.I. Rama Kant Tripathi, who has investigated the offence under Section 3/25 Arms Act; P.W.-8 Pradeep Kumar Srivastava, who has proved the sanction order given by the concerned District Magistrate for prosecution under Section 3/25/27 Arms Act. 16. Material collected during investigation had been sent to the Forensic Science Laboratory for chemical examination. Reports submitted by the Laboratory were also proved by the prosecution which were marked as Ext. Ka-43, Ka-44 and Ka-51. 17. It also appears that after closer of prosecution evidence statement of accused persons under Section 313 Cr.P.C. were recorded in which they denied entire prosecution story including the recovery said to have been made in the matter from their possession or on their pointing out. It was specifically stated by them that facts mentioned in the written report are incorrect. Charge sheets were submitted falsely. As per their statement P.W.-1 was not present at the place of occurrence at the time of incident. She has made false statement before the Court as well as to the Investigating Officer. None of the witnesses examined as eye witness account on behalf of the prosecution were present on the spot nor they have seen the accused persons committing the present offence. Accused persons also showed ignorance about the manner of lodging of FIR; preparation of written report; inspection of the place of occurrence made by the police and previous enmity between the parties. Incident of dacoity said to have taken place at the residence of informant was also denied. They specifically stated that scribe of written report was not present in the village concerned. He was called for from his village in the morning. Thereafter, FIR was lodged. FIR was not in existence at the time mentioned therein. They showed ignorance about the post mortem reports, inquest reports and other documents. As per their statement P.W.-5 Dileep Kumar Maurya has made false statement. They also showed ignorance about the investigation made by the Investigating Officer and stated that nothing was recovered from their possession. Recovery is false and planted. They showed ignorance about the post mortem reports, inquest reports and other documents. As per their statement P.W.-5 Dileep Kumar Maurya has made false statement. They also showed ignorance about the investigation made by the Investigating Officer and stated that nothing was recovered from their possession. Recovery is false and planted. Ignorance was also shown about the investigation made by P.W.-7 Rama Kant Tripathi and statement made by P.W.-8 Pradeep Kumar Srivastava. They further showed ignorance about the police papers proved by the prosecution during trial as well as regarding the material exhibit. It was also stated that accused were falsely implicated in this case. Enmity exists between the accused Sangam Pasi, Sanjay Dubey @ Panda, and also between Sangam Pasi and Puddi, thus there was no occasion to accompany them to commit the present offence. Some sort of enmity between deceased Chulbul and accused persons was also shown and stated that present prosecution was started against accused Sangam Pasi due to that enmity. 18. Accused persons in their defence have examined D.W.-1 Banwari Verma, Pharmacist, District Jail, Mirzapur and D.W.-2 Dileep Kumar Kushwaha. 19. On closer of entire evidence Trial Court after hearing both the parties vide impugned judgment and order convicted the accused appellants Sanjay Dubey @ Panda, Puddi Pasi and Sangam Pasi for the offence under Section 302 read with Section 34 IPC and acquitted Halim and Khunni @ Ram Prasad from all the charges levelled against them. Accused Sanjay Dubey @ Panda, Puddi Pasi and Sangam Pasi were also acquitted for the offence under Section 3/25/27 Arms Act. Trial Court has imposed death penalty against the accused appellants finding the present case in the category of "rarest of rare" cases and a reference under Section 366 Cr.P.C. for confirmation of the death sentence was also submitted to this Court. Accused appellants have also preferred Criminal Appeal against their conviction and sentence. State has also preferred appeal against acquittal. 20. Since both the appeals were heard together, therefore, they are being decided by common judgment. 21. We have heard Sri V. P. Srivastava, learned Sr. Advocate assisted by Sri S. M. Abdy, learned Advocate and Sri Rishi Chaddha, learned A.G.A. in support of the Criminal Appeal. State has also preferred appeal against acquittal. 20. Since both the appeals were heard together, therefore, they are being decided by common judgment. 21. We have heard Sri V. P. Srivastava, learned Sr. Advocate assisted by Sri S. M. Abdy, learned Advocate and Sri Rishi Chaddha, learned A.G.A. in support of the Criminal Appeal. We have also heard Sri Rishi Chaddha, learned A.G.A. appeared on behalf of the State in Government Appeal and Sri Abhishek Tiwari, learned Advocate appeared on behalf of the opposite parties in Government Appeal and have also gone through the entire record carefully and cautiously. 22. First and foremost question raised on behalf of appellants is regarding timing of lodging of FIR and presence of P.W.-5 at the time of preparing of written report (Ext. Ka-1). 23. Sri Srivastava, learned Sr. Advocate argued that offence is said to have been committed in the intervening night of 24/25.4.2011 at 12.30 hrs. FIR was lodged in the matter on 25.4.2011 in the night itself at 1 A.M. Distance between the place of occurrence and the police station concerned was 5 kms. Scribe P.W.-5 Dileep Kumar is the resident of village Bhiskuri which is about 17-18 kms. away from the place of occurrence. It appears improbable and unbelievable that he would have reached at the place of occurrence within few minutes and prepared written report and thereafter it was presented before the Police Station concerned at the time mentioned in the chik. Learned counsel for the appellants has also referred to the statements of Smt. Sheela Devi, P.W.-1; Lallan Singh, P.W.-4, Chik Writer; Dileep Kumar Maurya, Scribe, P.W.-5 and Investigating Officer Ram Naresh Yadav, P.W.-6. 24. Learned A.G.A. has argued that P.W.-5 and one Santosh Kumar had already come on 24.04.2011 in the day hours itself and they were present in the village concerned at the house of their another relative Raj Mani at the time of incident. Thus their presence at the place of occurrence immediately after the incident is not improbable and FIR was in existence at the time mentioned therein. 25. Trial Court after analysing entire evidence available on record was of the view that FIR lodged in the matter is not ante timed document. P.W.-5 Dileep Kumar Maurya was present in the village concerned at the time of occurrence and had prepared written report (Ext. Ka-1). 25. Trial Court after analysing entire evidence available on record was of the view that FIR lodged in the matter is not ante timed document. P.W.-5 Dileep Kumar Maurya was present in the village concerned at the time of occurrence and had prepared written report (Ext. Ka-1). Thereafter informant P.W.-1 along with one Santosh Kumar went to the Police Station concerned immediately to lodge the FIR. If the findings recorded by the Trial Court on this issue are compared with the submissions raised by the learned counsel appearing for the parties as well as evidence available on record it clearly emerges that incident took place in the intervening night of 24/25.4.2011 in the house of the informant at about 12.30 hrs.. All the family members were sleeping by that time. House where P.W.-5 was sleeping is only few meters away from the place of occurrence. A clear stand has been taken by the prosecution in the written report Ext. Ka-1 that P.W.-5 and one Santosh Kumar had come to the village concerned one day before and after meeting with P.W.-1 they went to stay in the night in the house of another relative namely Raj Mani. Defence has tried to establish that P.W.-5 and Santosh Kumar both were not present by putting questions from prosecution witnesses but nothing has come out to disbelieve this fact. P.W.-1 and P.W.-5 both clearly and consistently have stated that Dilip Kumar Maurya and Santosh Kumar were present in the village concerned at the time of occurrence. It is not denied to the parties that P.W.-1 is cousin sister of P.W.-5. Thus going of P.W.-5 and Santosh Kumar from village Bhiskhuri to village Amrawati where the incident took place is not unnatural or improbable. It is noteworthy here that incident is said to have taken place at about 12.30 hrs. in the night concerned. Written report (Ext. Ka-1) was prepared by P.W.-5 on the paper provided by P.W.-1 herself. There is thumb impression of P.W.-1 on the written report. Learned counsel for the appellants also urged that keeping of paper and ink pad in the house is improbable and this fact itself shows that FIR was lodged in the morning after calling P.W.-5 from his village. It may be mentioned here that place of incident is near to the city area. Keeping of blank papers and ink pad in the house is not improbable fact. It may be mentioned here that place of incident is near to the city area. Keeping of blank papers and ink pad in the house is not improbable fact. People used to keep the papers in their houses even in village area also. Informant's family was doing business of purchase and sale of flowers and preparing of garland, thus, in the facts and circumstances of the case, submissions raised by the learned counsel for the appellants could not be accepted. Written report is of only one page document. Preparing of this document within few minutes especially when P.W.-5 was B. Tech. Engineer is not improbable and unbelievable. It has also come in the evidence that after preparation of written report (Ext. Ka-1) P.W.-1 along with one Santosh Kumar went to the Police Station concerned immediately. Distance between the place of occurrence and Police Station is only 5 kms. If the entire facts and circumstances of the case along with the statement of P.W.-1, P.W.-4 and P.W.-5 are taken into consideration cumulatively, existence of the FIR at about 1 A.M. on 25.4.2011 is not improbable or unbelievable. Existence of FIR can also not be doubted only on this ground that inquest reports and relevant documents were prepared in the morning particularly when P.W.-4, P.W.-6 and P.W.-7 examined on behalf of the prosecution have clearly and categorically explained this fact before the Court. Non-disclosing of name of other accused who were acquitted vide impugned judgment and order is also not sufficient to doubt the genuineness of the FIR and its existence at the time mentioned therein. 26. It is noteworthy that what facts were narrated by P.W.-1 to the P.W.-5 he reduced the same in writing immediately. Thereafter P.W.-1 moved to the Police Station concerned. It may also be mentioned here that FIR is not an encyclopedia. Facts necessary to set the law in motion have been mentioned in the FIR. Thus enmity, motive and other facts stated later on during investigation or before the Court during trial if not mentioned in written report (Ext. Ka-1), genuineness and the existence of the FIR cannot be doubted. Facts necessary to set the law in motion have been mentioned in the FIR. Thus enmity, motive and other facts stated later on during investigation or before the Court during trial if not mentioned in written report (Ext. Ka-1), genuineness and the existence of the FIR cannot be doubted. Specific question has been put by the defence to P.W.-4 about existence of FIR at the time mentioned therein and this witness has clarified that although no other FIR had been lodged just before registering the case yet FIR was lodged in the present matter on the basis of written report (Ext. Ka-1) at the time mentioned therein. Thus in our considered view FIR in the present matter is not ante timed document nor it was registered after consultation or thought. It is also important to note that prosecution case cannot be discarded on the ground of delay in lodging FIR, particularly, when there are eye account witnesses. In the present matter P.W.-1 and P.W.-2 both are inmates where the incident took place. Thus other evidence adduced by the prosecution has to be analysed. Finding of the Trial Court on the issue of existence of FIR need no interference and is based on correct appreciation of facts and evidence. 27. Next question raised on behalf of learned counsel for appellants is regarding motive and enmity. 28. Submission has been raised that nothing was disclosed in the written report (Ext. Ka-1) attributing motive against the accused appellants to commit present offence. It was also stated that facts stated by P.W.-1 and P.W.-2 before the Court during examination comes under the purview of improvement. Thus prosecution failed to establish the motive part against accused appellants to commit the present offence. 29. Learned A.G.A. has urged that three persons were done to death in the family. P.W.-1 got the written report prepared with the help of P.W.-5 immediately within few minutes. Certainly she would have lost control and, therefore, if the facts stated during trial on the point of motive were not mentioned in the written report (Ext. Ka-1), statement of prosecution witnesses on point of motive cannot be disbelieved. 30. Trial Court was of the view that prosecution was able to prove motive. 31. We have analysed the entire evidence on this issue. As on earlier occasion dacoity took place two times in the house of informant. Ka-1), statement of prosecution witnesses on point of motive cannot be disbelieved. 30. Trial Court was of the view that prosecution was able to prove motive. 31. We have analysed the entire evidence on this issue. As on earlier occasion dacoity took place two times in the house of informant. Criminal case was also started against some of the accused but compromise took place between them, therefore, prosecution ended in acquittal. It is pertinent to mention here that motive is an essential ingredients to commit the offence but where there are occular evidence motive looses its significance. If the aforesaid settled legal position are taken into consideration in the light of entire evidence, finding recorded by the Trial Court on point of motive cannot be termed to be illegal. Trial Court after discussing entire evidence has rightly concluded that motive attributed against the accused appellant to commit the present offence was proved by the prosecution from its evidence beyond reasonable doubt. Contradiction on this point in the prosecution evidence is also not fatal to the prosecution case. Enmity between some of the accused and informant's family have been admitted by P.W.-2. Even in the statement recorded under Section 313 Cr.P.C. appellants have not specifically denied this fact. Thus, in our considered view accused appellants have not been implicated in this matter on the basis of enmity. Finding of Trial Court need no interference. 32. As far as the place of occurrence is concerned, learned counsel for the appellants referring to the statement of prosecution witnesses examined before the Court on oath has urged that there is major contradiction in their statement about place of sleeping of the deceased persons as well as presence of prosecution witnesses. Learned counsel has also referred to the site plans and urged that nothing is shown in the site plan about the place where P.W.-1 and P.W.-2 were sleeping. If the submissions raised by the learned counsel for the appellants are analysed in the light of the evidence available on record there is no material inconsistency in their statement about places where the deceased Chulbul, Nagendra and Brij Lal Maurya were sleeping. If the Investigating Officer has not shown the places in the site plan specifically where deceased Brij Lal Maurya, P.W.-1 and P.W.-2 were sleeping, same cannot be a ground to disbelieve the statement of P.W.-1 and P.W.-2. If the Investigating Officer has not shown the places in the site plan specifically where deceased Brij Lal Maurya, P.W.-1 and P.W.-2 were sleeping, same cannot be a ground to disbelieve the statement of P.W.-1 and P.W.-2. It is also evident from the record that inquest reports were prepared at the places mentioned in the written report (Ext.Ka.-1) in the morning of 25.4.2011. Investigating Officer has also taken blood stained and plain earth from the place of occurrence where the dead bodies of the deceased were found. On chemical examination, blood was found in the soil which was taken where dead bodies of Chulbul and Nagendra were lying. Although blood found on the soil taken from near the dead body of the deceased Brij Lal Maurya was disintegrated but this fact alone is not sufficient to doubt the place of occurrence described in written report (Ext. Ka-1) as also in the site plan (Ext. Ka-30). Used/empty cartridges were also recovered by the Investigating Officer near the dead body of the deceased persons and this fact has been proved by the prosecution from its evidence beyond reasonable doubt. If the places where deceased were sleeping and witnesses were present as shown in the site plan are compared with the statement of P.W.-1 and P.W.-2 there is no consistency in their statement on the point that incident took place at the places shown in the site plan. If there is contradiction about exact distance between the places where deceased were sleeping or existence of light i.e. electric bulb, prosecution evidence regarding happening of occurrence at the place shown in the site plan cannot be doubted. Site plan Ext. Ka-30 also reveals that after committing the present offence accused ran away towards northern side. It has also come in the evidence that there is open field where the accused ran away. Place of occurrence can also not be doubted only on the basis that no person of locality had come at the place of occurrence at the time of incident to save the deceased persons. It is worth mentioning here that incident took place at about 12.30 hrs. in the night and people of the locality were sleeping. They reached after the incident. Non-disclosing of names of the local persons in the written report, facts regarding commission of present offense stated by the prosecution witnesses cannot be doubted. It is worth mentioning here that incident took place at about 12.30 hrs. in the night and people of the locality were sleeping. They reached after the incident. Non-disclosing of names of the local persons in the written report, facts regarding commission of present offense stated by the prosecution witnesses cannot be doubted. Findings of the Trial Court about the place of occurrence is based on correct evidence and need no interference by this Court. 33. Now we proceed to deal with the medical evidence. 34. Learned counsel for the appellants has drawn the attention of Court towards the facts that deceased persons had taken meal at about 9 P.M., post mortem report reveals that stomach of all the deceased were found empty. Referring to this fact it has been urged that incident took place at some other place at a different time, prosecution on the basis of enmity falsely implicated the accused appellants in the present matter. In-fact medical evidence is contrary to the oral version. 35. Learned A.G.A. has opposed the submissions and argued that on the basis of contents of stomach time of death cannot be fixed. 36. Trial Court after analyzing the entire evidence on this issue was of the view that prosecution was able to prove time of death of deceased persons. Trial Court has also observed that on the basis of contents of stomach and intestine time of death could not be ascertained. It will not be safe to form an opinion on this basis. 37. It is settled that if stomach of deceased were found empty, same will not be conclusive in itself for determining time of death. The state of contents of stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation. Further, presence of faecal matter in intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about time of occurrence by presence of faecal matter in the intestines. No such generalization is possible. It depends upon habit of individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. No such generalization is possible. It depends upon habit of individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, (1971) AIR SC 1794, State of Uttar Pradesh v. Shanker, (1981) AIR SC 897, Lachman Singh versus State, (1952) AIR SC 167, Nihal Singh versus State, (1965) AIR SC 26and Shivaji versus State, (1973) AIR SC 2622]. 38. Certainly in the present matter stomach of all the deceased were found empty although fecal matter and gases were found in the small and large intestine. Prosecution case is that deceased had taken their meal at 9 P.M., incident took place at about 12.30 hrs. Nothing has come in the prosecution evidence or in the cross examination of the prosecution witnesses to show the nature and quantity of food taken by the deceased persons. If such was the position then only on this basis that stomach of deceased persons were found empty, date and time of death of the deceased persons cannot be doubted. Digestive process remain continue even after death for some time. Thus in view of the above, we are also of the considered view that Trial Court's finding about the time of death of deceased persons is based on correct appreciation of fact and evidence. Thus, finding recorded by Trial Court on this issue, in our considered view, is not interferable and submissions raised by learned counsel for the appellants are not acceptable. 39. So far as preparation of inquest reports and some short comings occurred in the prosecution evidence on this point is concerned, dead bodies of the deceased were lying at the place of occurrence and after lodging of FIR police reached there in the night itself but inquest proceeding was started in the morning. 39. So far as preparation of inquest reports and some short comings occurred in the prosecution evidence on this point is concerned, dead bodies of the deceased were lying at the place of occurrence and after lodging of FIR police reached there in the night itself but inquest proceeding was started in the morning. If there is any discrepancy in the injuries shown in the inquest reports and in the post mortem reports, only on this ground medical evidence cannot be disbelieved. Inquest reports were prepared by the police personnel. They are not expert person. Injuries were shown in inquest reports on the basis of general inspection. If some injuries were left over to be shown in the inquest reports it will not be sufficient to disbelieve the prosecution case. Inquest report is prepared only to ensure that death is natural or otherwise. In the present matter inquest reports of the deceased were prepared on the direction of P.W.-6. If he has not taken the opinion of eye account witnesses in the inquest report except Ram Bali it will also not be sufficient to disbelieve the entire prosecution case. It may be mentioned here that on the ground of laches on part of Investigating Officer statement of eye account witnesses which find support from medical evidence cannot be disbelieved. 40. As far as source of light at the place of occurrence is concerned incident took place in the night hour. Written report (Ext. Ka-1) itself reveals that at the time of incident there was sufficient electric light. Although in the site plan specific places of electric bulb have not been shown by the Investigating Officer but this fact alone is not sufficient to disbelieve the statement of prosecution witnesses on the point of source of light. It is also clarified at this stage that place of occurrence is near to the city area. Nothing has come out in the cross examination of the prosecution witnesses to disbelieve the facts about the existence of electric bulb. Thus finding recorded by Trial Court on the point of source of light at the time of incident is not against the facts and evidence. 41. Question as to the presence of witnesses at the place of occurrence is concerned, three persons were done to death in the matter. Thus finding recorded by Trial Court on the point of source of light at the time of incident is not against the facts and evidence. 41. Question as to the presence of witnesses at the place of occurrence is concerned, three persons were done to death in the matter. P.W.-1 the informant of the case is the wife of one of the deceased Brij Lal Maurya. She claimed herself to be present in the room at the time of incident where her husband Brij Lal Maurya was sleeping. It has also come in the evidence that after preparing garlands (Mala) in the night and taking dinner they went to bed. Learned counsel appearing for the appellants has urged that P.W.-1 claimed herself to be present inside the room at the time of occurrence thus she cannot see what incident took place outside the room. She is not witness of the murder of Chulbul and Nagendra. Her statement about the manner of incident said to have been occurred in regard to murder of Narendra and Chulbul are immaterial. It is also argued that P.W.-2 Nisha was also not an eye witness. Investigating Officer has not shown the place where she claimed herself to be present at the time of occurrence in the site plan. Referring to the statement of P.W.-2 it is also argued that she could not see the incident from the place where she stated herself to be present. 42. Learned A.G.A. has argued that both the witnesses P.W.-1 and P.W.-2 are eye account witness. They are inmates. They were present in their rooms. Incident could easily be seen by them from the place where they were present. Laches on the part of Investigating Officer do not render these prosecution witnesses unbelievable. 43. If the submissions raised by learned counsel on this point are minutely analysed in the light of the facts and evidence available on record it emerges that after preparing the garlands (Mala) entire family members took dinner and thereafter they went to bed. Deceased Nagendra and Chulbul both were sleeping outside the house on the platform and thelia. Deceased Brij Lal Maurya was sleeping inside the room on the first floor along with P.W.-1. P.W.-2 Nisha claimed herself to be present in the room along with her husband Ram Bali. Deceased Nagendra and Chulbul both were sleeping outside the house on the platform and thelia. Deceased Brij Lal Maurya was sleeping inside the room on the first floor along with P.W.-1. P.W.-2 Nisha claimed herself to be present in the room along with her husband Ram Bali. It has also come in the evidence that accused persons were asking about Ram Bali, P.W-1 told them that he is not present in the house. Accused persons committed murder of Chulbul, Nagendra and Brij Lal Maurya and left the place of occurrence. It has been established by the prosecution from its evidence beyond reasonable doubt that there was sufficient electric bulb light at the place of occurrence. Although incident took place in the night hour but at that time some murmuring would have taken place. In that situation statement made by P.W.-1 and P.W.-2 about the manner of incident cannot be doubted. If the places where P.W.-1 and P.W.-2 claimed themselves to be present are tallied/compared/checked with the place of occurrence it is evident that both the witnesses could easily see the accused persons while they were committing murder of Nagendra and Chulbul. Although P.W.-2 could not see the incident occurred in the room where deceased Brij Lal Maurya was present but statement of P.W.-1 Smt. Sheela Devi who was present in that room is fully consistent and clear on the point that accused appellant Sangam opened fire upon her husband. Accused Puddi Pasi committed murder of accused Chulbul and deceased Nagendra was done to death by accused Sanjay Dubey @ Panda. There is no contradiction in the statement of the P.W.-1 on this point. Statement of P.W.-1 also finds support with the statement of P.W.-2 as she saw all the accused while they were leaving the place of occurrence after committing present offence. If neighbour did not reach at the place of occurrence at the time of incident immediately it will not be sufficient to disbelieve the version proved by the prosecution. Prosecution has proved motive against the accused persons to commit the present offence. Presence of P.W.-1 and P.W.-2 at the place of occurrence is not doubtful. Entire incident took place before them. Prosecution has proved motive against the accused persons to commit the present offence. Presence of P.W.-1 and P.W.-2 at the place of occurrence is not doubtful. Entire incident took place before them. All the accused appellants left the place of occurrence before these witnesses, therefore, findings recorded by Trial Court about presence of P.W.-1 and P.W.-2 at the place of occurrence, in our considered view is also in accordance with the facts and evidence. No interference is required by this Court. It is also clarified at this stage that P.W.-1 and P.W.-2 have identified accused appellants at the time of incident itself. Mere non mentioning of name of some accused in the FIR who were added during investigation, is not sufficient to disbelieve the statement of P.W.-1 and P.W.-2 regarding involvement of accused appellants in the present matter nor presence of P.W.-1 and P.W.-2 at the place of occurrence is doubtful. It is also pertinent to mention that acquittal of co-accused itself will not be a ground for acquittal of the present appellants if prosecution case is fully believable regarding the involvement of the appellants in commission of the present offence. 44. P.W.-1 and P.W.-2 both belong to same family. One family member Ram Bali who was surviving has also died during pendency of trial. Although he was not an injured witness yet in the facts and circumstances of the case if there are contradiction on some points in the statement of prosecution witnesses i.e presence of witnesses as also presence of police, distance between the place where deceased Nagendra and Chulbul were sleeping as also on topographical details of the place of occurrence, in our considered view these are not the root cause of the matter nor are sufficient to discard the statement of eye account witness, particularly, when the statement made by P.W.-1 and P.W.-2 fully find support with the medical evidence. Prosecution have also proved the place of occurrence beyond reasonable doubt in the present matter. It is settled legal position that if there is some sort of laches on part of the Investigating Officer or there are some minor contradiction on some points in prosecution evidence, truthfulness of the statement of the prosecution witnesses whose presence at the place of occurrence are natural, probable and believe bale, cannot be discarded or disowned. 45. It is settled legal position that if there is some sort of laches on part of the Investigating Officer or there are some minor contradiction on some points in prosecution evidence, truthfulness of the statement of the prosecution witnesses whose presence at the place of occurrence are natural, probable and believe bale, cannot be discarded or disowned. 45. So far as non-examination of independent witnesses is concerned, it is suffice to say that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding weight of testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. It is now well-settled principle of law that whom to cite as a witness and whom not to cite is within the domain of the prosecution. It is primarily for the prosecutor to decide which witness it should examine in order to unfold the prosecution story. (Vide State of UP v. Ganga Ram, (2005) 13 SCC 239 ). 46. Further, it is also settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by the prosecution. In this regard, a reference can be taken to a case law reported in Food Inspector v. G. Satyanarayana, (2004) AIR SC 1236, wherein Court has held that it is not the number of witnesses but it is quality of evidence which is required to be taken note of by the courts for ascertaining truth of allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. witnesses of fact produced on behalf of the prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. 47. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. witnesses of fact produced on behalf of the prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. 47. As regards the submission on point of discrepancies and contradictions pointed out by the learned counsel for the appellants in the statements of PW-1 and PW-2 and other witnesses are concerned, it is well settled proposition of law that inconsistency or discrepancy occurred in the investigation or laches on part of Investigating Officer does not affect the veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that collapsed the entire prosecution case. 48. Thus on the basis of aforesaid discussion, we are of the view that prosecution was able to prove the presence of P.W.-1 and P.W.-2 at the place of occurrence at the time of incident beyond reasonable doubt. They are the inmates and most natural and probable witness. Non examination of other independent witnesses itself is not sufficient to disbelieve their statement. Statement of P.W.-1 and P.W.-2 also finds support with medical evidence. Prosecution also proved motive against accused appellants; there was sufficient source of light at the place of occurrence at the time of incident; existence of FIR at the time mentioned therein is probable and believeable one; P.W.-5 was present in the village in the night concerned; he reached immediately at the place of occurrence after the incident; involvement of accused appellants have been clearly and consistently supported by P.W.-1 and P.W.-2; laches on part of Investigating Officer are not material as they do not go to the root of the case; contradiction, omission, exaggeration occurred in the statement of the prosecution witnesses are also not fatal to the prosecution case; P.W.-1 and P.W.-2 are rustic witnesses, thus, in our considered view, Trial Court has rightly held guilty to the accused appellants for commission of offence under Section 302 IPC read with Section 34 IPC. Finding of Trial Court regarding guilt of the accused appellants for the aforesaid offence is based on correct appreciation of facts and evidence and no interference is required by this Court. 49. Finding of Trial Court regarding guilt of the accused appellants for the aforesaid offence is based on correct appreciation of facts and evidence and no interference is required by this Court. 49. As far as acquittal of accused-appellants for the rest of charges framed against them is concerned, if entire prosecution evidence adduced by the prosecution are minutely analyzed it emerges that prosecution was not able to prove the recovery to constitute the offence under Section 3/25/27 Arms act beyond reasonable doubt against the accused-appellants. So far as acquittal of accused Halim and Khunni @ Ram Prasad is concerned, we have also analyzed the entire evidence in consonance with submission raised on behalf of the parties and it also emerges that both were not named in the FIR. They were implicated in this matter during investigation. Non disclosing of their names in the FIR itself indicate their involvement doubtful as FIR is lodged by eye account witness. Had they been involved in the matter and were present on the spot taking active participation, witnesses present on the spot would have recognized them. No active role is assigned to them. Thus, finding recorded by the Trial Court regarding acquittal of accused Halim and Khunni @ Ram Prasad need no interference. 50. Trial Court while imposing death penalty has considered the aggravating and mitigating circumstances as under: Aggravating Circumstances 1. It was a massacre and cold blooded murder. 2. All the deceased were belonging to same family and they were sleeping at the time of incident. 3. Nothing is on record to show that any sort of provocation was made on the part of deceased person. 4. Three generations were eliminated by the accused persons belonging to same family. 5. Grave impact of the crime on social order. Mitigating Circumstances 1. There is no criminal history of the accused appellants and age of the accused appellants namely Sangam Pasi was 36 years; Puddi Pasi was 45 years and Sanjay Dubey @ Panda was 49 years. 2. Appellants did not cause injury to the P.W.-1 although she was also present there and belongs to same family. 3. Accused-appellants have also not caused injury to the P.W.-2 and her husband. In the opinion of Trial Court aggravating circumstances outweigh the mitigating circumstances, which not only calls for rather cries for exemplary punishment." 51. 2. Appellants did not cause injury to the P.W.-1 although she was also present there and belongs to same family. 3. Accused-appellants have also not caused injury to the P.W.-2 and her husband. In the opinion of Trial Court aggravating circumstances outweigh the mitigating circumstances, which not only calls for rather cries for exemplary punishment." 51. 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. 52. 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. 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. 53. Relying on the authority in Furman v. Georgia,1972 SCCOnLineUS(SC) 171 Court noted the suggestion given by learned counsel about aggravating and mitigating circumstances in para 202 of the judgment in Bachan Singh (supra) which read as under :- "202. ... 53. Relying on the authority in Furman v. Georgia,1972 SCCOnLineUS(SC) 171 Court noted the suggestion given by learned counsel about aggravating and mitigating circumstances in para 202 of the judgment 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." 54. 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. (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.'" 55. 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. 56. 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 along with the circumstances of the ''crime'. (iii) Life imprisonment is the rule and death sentence is an exception. (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." 57. 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) 58. 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. 59. 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. 59. 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. 60. 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. 61. 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. 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. (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 eyewitness though the prosecution has brought home the guilt of the accused." (Emphasis added) 62. 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. 63. 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. 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 criminals. 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. 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) 64. 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, . 65. 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. 66. 65. 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. 66. 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) 67. In para 497 of the judgment in Mukesh and another v. State (NCT of Delhi) and others (supra), in concurring judgment by Hon'ble R.Banumathi, J. it is observed :- " ... Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolical manner, the accused should be shown no remorse and death penalty should be awarded." (Emphasis added) 68. 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 case". 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. 69. Death sentence should only be awarded in cases which come under the purview of "rarest of rare case". 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. 69. 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. 70. 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. 71. At the time of recording of statement under Section 313 Cr.P.C., accused-appellants were 36, 45 and 49 years of age, as is disclosed in their statement. They were never convicted in any criminal case prior to this incident. 71. At the time of recording of statement under Section 313 Cr.P.C., accused-appellants were 36, 45 and 49 years of age, as is disclosed in their statement. They were never convicted in any criminal case prior to this incident. Manner of incident and magnitude of crime also reveals that accused-appellants did not act in cruel manner nor inflicted injury upon P.W.-1 who was also present on the spot and was belonging to same family. Accused-appellants were less than 49 years at the time of recording of statement under Section 313 Cr.P.C. and chance of reformation and rehabilitation cannot be ruled out. This aspect of the matter has not been considered by the Trial Court while imposing death penalty. Trial Court's view for imposing death penalty to accused-appellants is also not befitting with the theory that imposition of imprisonment for life for the offence under Section 302 IPC is the general rule and death penalty is an exception. In the facts and circumstances of the case, it cannot be said that accused-appellants would be menace to the society and their existence would endanger to the society. 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 appellants or not. 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 appellants is not of such nature which warrant only and only death sentence. Appellants are not menace and threat to the harmonious and peaceful co-existence of society. Thus, keeping in view the entire facts and circumstances of the case in light of settled position of law regarding imposition of death penalty, we are of the view that present matter does not come under the category of 'rarest of rare cases'. Finding of Trial Court imposing death penalty to accused-appellants is not based on correct appreciation of facts, evidence and law. In our considered view, if accused-appellants are punished in the present matter with imprisonment for life for the offence under Section 302 IPC, the purpose of imposing adequate and proper sentence would sub serve, which will also be to the conscience of society and the court both. 72. In our considered view, if accused-appellants are punished in the present matter with imprisonment for life for the offence under Section 302 IPC, the purpose of imposing adequate and proper sentence would sub serve, which will also be to the conscience of society and the court both. 72. 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 persons. Thus, in our considered view, appeal filed on behalf of accused appellants is liable to be partly allowed and death sentence awarded to the accused appellants is liable to be modified/commuted to the sentence of imprisonment for life and also fine imposed upon them by Trial Court. Hence reference submitted by Trial Court for confirmation of death sentence is not liable to be allowed/confirmed/accepted. 73. On the basis of foregoing discussions, Reference No. 12 of 2016 submitted by Trial Court for confirmation of the death punishment awarded to the accused appellants Sangam Pasi, Puddi Pasi and Sanjay Dubey alias Panda is hereby rejected and present criminal appeal having some merit, is partly allowed. 74. The finding of conviction recorded by Trial Court under Section 302 IPC in Session Trial No. 126 of 2011 (State Vs. Sangam Pasi and others); Session Trial No. 129 of 2011 (State Vs. Sangam) and Session Trial No. 130 of 2011 (State Vs. Khunni @ Ram Prasad) regarding conviction of the accused appellants Sangam Pasi, Puddi Pasi and Sanjay Dubey alias Panda is confirmed. 75. The sentence of death awarded to accused appellants Sangam Pasi, Puddi Pasi and Sanjay Dubey alias Panda is commuted into that of sentence of imprisonment of life but fine imposed by Trial Court is maintained. 76. As regards Government Appeal filed by State of U.P. against impugned judgment and order whereby co-accused Khunni Yadav and Haleem have been acquitted as also the acquittal of accused appellants for the offence under Section 3/25/27 Arms Act, is concerned, finding of Trial Court for the reasons discussed here-in-above cannot be said to be illegal or perverse and no interference is warranted by this Court in the impugned judgment and order to the extent of acquittal. Thus, in view of settled position of law, as has been held in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 315 and Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 SCC 298 , connected Government Appeal is liable to be dismissed and is hereby dismissed. 77. Let a copy of this judgment along with Trial Court record be sent to Court concerned for compliance. Copies of judgment be also sent to accused appellants through Superintendent Jail concerned for their information. Compliance report be also submitted to this Court. 78. Let copy of this judgment be also placed on record of Government Appeal No. 808 of 2017 (State of U. P. Vs. Khunni Yadav @ Ram Prasad and another).