JUDGMENT : A.Y. KOGJE, J. 1. The Criminal Confirmation case as well as the two Criminal Appeals arise from a selfsame judgment and order of conviction and sentence passed by the 2nd Additional Sessions Judge, Dhrangadhra, Surendranagar dated 31.03.2021 in Sessions Case No. 28 of 2018, all these are heard analogously and are being disposed of by this common judgment and order. 2. Criminal Appeal No. 712 of 2021 is at the instance of a convict accused, viz. Umangbhai Lalitbhai Thakkar (original accused No. 1), whereas Criminal Appeal No. 1524 of 2021 is at the instance of a convict accused, viz. Kankuben W/o Khodabhai Morubhai Panvecha (original accused No. 2). 3. Both the appeals are directed against the order of conviction and death sentence dated 31.03.2021 passed by 2nd Additional Sessions Judge, Dhrangadhra, Surendranagar dated 31.03.2021 in Sessions Case No. 28 of 2018, by which the Sessions Judge found the appellants guilty of the offence punishable under Sections 302 and 114 of the Indian Penal Code, and consequently, sentenced them to capital punishment. THE CASE OF THE PROSECUTION: 4. In this case, complainant Vishnubhai Morubhai Panvecha filed complaint on 11.07.2018 stating that he is real brother-in-law of accused Kankuben and has been residing at Dhama village of Patadi Taluka and is doing agricultural work. He has three brothers, of whom the eldest is Khodabhai whose marriage has been solemnized and he has been residing separately. Khodabhai happens to be father of deceased Sonalben alias Kinjalben and husband of accused Kankuben. His remaining two brother, viz. Ajitbhai and Vishnubhai are not married and both are residing with their father; that when the complainant was at his home at about 3 O’clock of the noon on 11.07.2018, he came to know from hearsay that dead body of Sonal alias Kinjal daughter of his elder brother Khodabhai is lying in blood stained condition in the house of Umangbhai Lalitbhai Thakkar-original accused No. 1. Therefore, he and Bachubhai Mahadevbhai and Jesangbhai Gandabhai etc. Therefore, he and Bachubhai Mahadevbhai and Jesangbhai Gandabhai etc. visited the house of accused Umangbhai; that on reaching Umangbhai’s house, he found that his niece Sonal was lying on settee in blood stained condition in the house of accused Umangbhai and at this time, many people of his village had gathered, wherein complainant’s elder brother Khodabhai, Prahladbhai Nathabhai, Geetaben Prahladbhai, complainant’s aunt Dhudiben Jerambhai and complainant’s sister-in-law i.e. his elder brother Khodabhai’s wife i.e. present accused Kankuben (deceased Sonalben’s mother) were present there; they saw that she was stabbed in the stomach with a sharp knife-like weapon and her throat was cut; that when complainant Vishnubhai saw in the house of the accused Umangbhai, he was not seen. Therefore, complainant asked mother of the accused Umangbhai, where has Umangbhai gone? Upon asking, Umang’s mother stated that when she was cleansing utensils in the morning, her son Umang was there at house about 10-10:30 am. At this time, Sonal and her mother Kankuben came to her house. Thereafter, at about 11 O’clock when she went into the house, she found that Sonal’s dead body was lying on the settee in blood stained condition in her house and her son Umang and deceased Sonal’s mother Kankuben-original accused No. 2 were not found in the house. They had left house; that as there was illicit relation between his sister-in-law and Umangbhai-accused for a long time and his niece Sonal was obstructing, the accused got together, having decided earlier and killed his niece Sonal. The complainant has lodged complaint in this regard. POLICE INVESTIGATION AND CASE COMMITTAL PROCEDURE: 5. After filing of the complaint, the Investigating Officer has drawn Inquest Panchnama of the dead body of deceased Sonalben in the presence of Panchas, panchnama of the place of offence in the presence of Panchas. A blood stained dupatta (apron) was recovered from the place of offence and the same was seized in the presence of Panchas. Moreover, a white cover of a bed was found in blood stained condition. The cover of the bed and the handkerchief were recovered from the place of offence and blood stains were found on that cover and handkerchief. Moreover, a blood stained handkerchief was found near the dupatta and father of accused-Umang had stated that the said handkerchief belonged to the accused Umang. The cover of the bed and the handkerchief were recovered from the place of offence and blood stains were found on that cover and handkerchief. Moreover, a blood stained handkerchief was found near the dupatta and father of accused-Umang had stated that the said handkerchief belonged to the accused Umang. As the father of accused Umang had stated the handkerchief to be belonging to Umang, the said handkerchief was seized in the presence of Panchas. In addition to it, a sharp edged knife was seen below the bed, which was stained with blood. A long black hair was seen on the said knife. The said hair was of a woman. All the aforesaid things were seized by the Investigating Officer from the place of offence in the presence of Panchas. Moreover, the Investigating Officer has drawn Inquest Panchnama of the dead body of the deceased, wherein the age of the deceased Sonalben was found to be around 17 years. She had worn a red coloured pyjama and kurta with red mango design, which was found stained in blood. A cut of 5. c.m. is seen on the front part of the Kurta. An injury with five stabs inflicted with a sharp weapon like a knife on the stomach part of deceased Sonalben is seen. All those five stabs were seen at the distance of two inches. Furthermore, the neck part of deceased Sonalben was separated by two inches from the body due to slitting of the neck with a sharp weapon like a knife. The neck has been slit by around six inches from the body and a handkerchief was stained with blood at the neck part. Thus, the above fact has been found in the Inquest Panchnama drawn in the presence of Panchas. The Investigating Officer has drawn Arrest Panchnama. At that time, the accused Umang had told that he has kept the blood stained clothes, which he worn at the time of incident, in the house of her aunt Gitaben Mahesbhai at Morbi. In fact, the accused has stated this wrong fact before the Investigating Officer. But, actually, the accused had hidden the clothes, which he worn at the time of incident, at his house only. Therefore, Umang’s clothes were seized from the place showed by the accused Umang in his house and Panchnama to this effect was drawn separately. In fact, the accused has stated this wrong fact before the Investigating Officer. But, actually, the accused had hidden the clothes, which he worn at the time of incident, at his house only. Therefore, Umang’s clothes were seized from the place showed by the accused Umang in his house and Panchnama to this effect was drawn separately. Moreover, the Saree worn by accused Kankuben at the time of incident was seized from Kankuben and blouse as well as petticoat were also recovered. Further, a mobile phone of Gomexy company of China was also recovered. As the accused Umang wished to show the clothes he worn at the place where he had hidden them, the Investigating Officer had drawn discovery panchnama of Part-1 in the presence of Panchas. Thereafter, while going on the way shown by the accused Umang, he had got the motor stopped at his house. As per the information given by the accused and as he shown the shirt and pant he worn at the time of incident, the said Shirt and Pant were seized, on which the blood like red stains were seen on it. A Panchnama of seizure of clothes of the deceased Sonalben has been drawn by the Investigating Officer in the presence of Panchas, wherein top (kurta), bra, leggings and nicker belonging to the deceased were seized. The said clothes were stained with blood and the top was slit with a sharp weapon. The IO recorded the statements of connected witnesses and filed a charge sheet under Section 173, Cr.P.C. for offences under Sections 302 and 120B of the Indian Penal Code and Section 135 of the Gujarat Police Act. 6. As the case was exclusively sessions triable, the same was committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure, 1973. The Sessions Court framed the charge Exh.7 against the accused appellants and the statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried. 7. The prosecution adduced the following oral evidence in respect of its case: S. No. Description Exhibit 1 Navghanbhai Prabhubhai Bhalgamiya-Panch witness 10 2 Hirabhai Bhupatbhai Thakore-Panch witness 15 3 Dr. Both the accused did not admit the charge and claimed to be tried. 7. The prosecution adduced the following oral evidence in respect of its case: S. No. Description Exhibit 1 Navghanbhai Prabhubhai Bhalgamiya-Panch witness 10 2 Hirabhai Bhupatbhai Thakore-Panch witness 15 3 Dr. Rajkumar Kiritbhai Mashru 17 4 Vishnubhai Morubhai Panvecha-complainant 20 5 Prahladbhai Nathabhai Panvecha-witness 22 6 Gitaben Prahladbhai Panvecha-witness 23 7 Khodabhai Mulubhai Panvecha-witness 24 8 Dharaben Bhalabha Panvecha-Panch witness 25 9 Monghiben Rasikbhai Thakore-Panch witness 27 10 Govindbhai Bhagubhai Bhalgamiya-Panch witness 30 11 Chodabhai Shivabhai Pagi-Panch witness 33 12 Chirag Dashrathbhai Patel-Scientific Officer 36 13 Kalyanbhai Dalabhai Parmar-witness 38 14 Karshanbhai Rajshibhai Visavadiya-witness 39 15 Vasabhai Pabhabhai Thakore-witness 40 16 Taraben Vasabhai Pagi-witness 41 17 Jesingbhai Gandabhai Panvecha-witness 44 18 Sagarbhai Maheshbhai Kariya-witness 46 19 Hussain Iqbalbhai Bhatti-Panch witness 47 20 Mustakbhai Akbarbhai Jam-Panch witness 49 21 Gitaben Maheshbhai Kariya-witness 51 22 Bachubhai Mahadevbhai Tharesha-witness 52 23 Prakashgiri Babugiri Goswami-witness 53 24 Meghrajsinh Dhirubha Jadeja-IO 55 25 Jitendrasinh Dilubha Zala-PSI 73 26 Rajesh Raidhanbhai Boricha-PSO 76 8. The following pieces of documentary evidence were adduced by the prosecution: S. No. Description Exhibit 1 Receipt containing signagures of pachas of recovery of muddamal knife 11 2 Receipt containing signagures of pachas of recovery of muddamal cover and handkerchief 12 3 Receipt containing signagures of pachas of recovery of muddamal “dupatta” and handkerchief 13 4 Panchnama of scene of offence 14 5 Panchnama of recovery of muddmal cover and handkerchief 16 6 Police yadi for postmortem of deceased Sonalben 18 7 Postmortem report of decesed Sonalben 19 8 Original complaint 21 9 Inquest panchnama 26 10 Receipt containing signagures of pachas of recovery of muddamal “sari” blous and “chaniya” 28 11 Arrest panchnama of the accused 29 12 Receipt containing signagures of pachas of recovery of cloths of accused Umangbhai 31 13 Discovery panchnama of recovery of cloths of accused Umangbhai 32 14 Receipt containing signagures of pachas of recovery of cloths of deceased Sonalben 34 15 Panchnama of recovery of cloths of deceased Sonalben 35 16 FSL analysis report of scene of offence 37 17 Arrest panchnama of accused Umangbhai with motorcycle 48 18 Police report to the Medical Officer at the time of sending dead body of deceased Sonalben for postmortem 56 19 Prevention of Arms Notification 57 20 Letter written to Maliya Police for making entry in station diary 58 21 Letter written to Maliya Police informing arrest of accused Umang 59 22 Letter written to Mamlatdar, Patdi for preparing map of scene of offence 60 23 Letter written to Medical Officer, CHC, Patdi 61 24 Certificate of jurisdiction 62 25 Police yadi for conducting postmortem of deceased Sonalben 63 26 Police yadi for receiving PM note 64 27 Police yadi to FSL for doing analysis of muddamal 65 28 Letter written by police to FSL containing details of muddamal 66 29 Receipt of muddamal being received by the FSL 67 30 Letter of FSL regarding muddamal analysis 68 31 Muddamal analysis report of FSL 69 32 Serological report of FSL 70 33 Xerox copy of statio diary entry No. 12/18 of Maliya Police Station 77 9. After completion of the oral as well `as the documentary evidence of the prosecution, the statements of the accused persons under Section 313 of the Cr.P.C. were recorded, in which both the accused stated that the complaint was a false one and they were innocent. 10. After completion of the oral as well `as the documentary evidence of the prosecution, the statements of the accused persons under Section 313 of the Cr.P.C. were recorded, in which both the accused stated that the complaint was a false one and they were innocent. 10. At the conclusion of the trial, the Trial Judge convicted both the accused appellants for the offences enumerated above and sentenced them to death. However, charge of Section-120B was not proved. 11. As the Trial Court thought fit to impose death penalty, the matter came to be referred to this Court for confirmation of the death penalty, which has been registered as the Criminal Confirmation Case No. 1 of 2021. 12. Being dissatisfied, the accused appellants have come up with their respective appeals. 13. Learned Additional Advocate General on behalf of the State has opened the arguments for the confirmation case and submitted that the offence has resulted in brutal death of a young lady without her fault, but only because she had objected to the illicit relationship between the accused No. 1 and her mother accused No. 2. According to him, the assault by the knife was on vital and sensitive part of the body. The postmortem note and the evidence of medical officer clearly established a homicidal death. The cross-examination for defense is not establishing defense case regarding the article used in offense or on the issue of homicidal death. 13.1 It is submitted that panchnama of the scene of offense proved by the prosecution establishes the presence of dead body with clear injury by the knife recovered from the scene as well as other muddamal articles like clothes of the deceased established the place where offense took place. 13.2 It is submitted that the motive behind the offense is also established from the beginning as it appeared through the complainant/informant, who in its FIR, has referred to the cause of committing murder. 13.3 Learned Additional Advocate General drew attention to evidence of relative of deceased and accused No. 2, who confirmed existence of illicit relations. He has specifically referred to PW-5 and PW-6 in this regard and further submitted that the cross of defense on the line that the deceased herself never conveyed to this witness about illicit relationship will not damage the case of prosecution regarding motive. He has specifically referred to PW-5 and PW-6 in this regard and further submitted that the cross of defense on the line that the deceased herself never conveyed to this witness about illicit relationship will not damage the case of prosecution regarding motive. 13.4 Learned Additional Advocate General has referred to FSL evidence as a strong circumstance. The presence of blood stains on the clothes of accused No. 1 establishes his involvement in offense. 13.5 Invoking Section 6 of Evidence Act has argued that the dead body of the deceased found inside the house itself is a strong circumstance of which special knowledge be attributed to accused No. 1. Only and thereafter the unnatural conduct of both the accused of not taking legal recourse of giving complaint also hint of this complacency. 13.6 He has argued that so far as accused No. 1 is concerned, he has made an extra judicial confession though before the police this witness has established the voluntary nature of such disclosure referring to Sections 24 and 25 of the Evidence Act. 13.7 He has thereafter submitted that both the accused in their statement under Section 313 of the Code of Criminal Procedure have stated that the deceased was murdered by some one else with whom the deceased was having an affair. Mere statement thus made cannot falsify the entire prosecution evidence, but it was for defense to provide credible evidence to doubt the prosecution case. 13.8 According to learned Additional Advocate General, the prosecution has established each circumstance beyond reasonable doubt and each circumstance is establishing the link to hold the accused as guilty. 13.9 Learned Additional Advocate General has however argued that the case of the prosecution will not fall in the category of the ‘Rarest of the Rare’ case to justify capital punishment. He has also submitted that the exercise of the Sessions Court to take into consideration the aggravating and mitigating circumstances is also not undertaken. 13.10 Therefore, while arguing for upholding the conviction of both the accused he has prayed to pass necessary order for sentence. 14. Learned Advocate for accused No. 1 submitted that the capital punishment awarded to the accused No. 1 is absolutely unjust and illegal, that too when the prosecution has not even established the case beyond shadows of all reasonable doubt. 14. Learned Advocate for accused No. 1 submitted that the capital punishment awarded to the accused No. 1 is absolutely unjust and illegal, that too when the prosecution has not even established the case beyond shadows of all reasonable doubt. It is submitted that even at the end of trial, the case of the prosecution remains on the basis of assumption. 14.1 It is submitted that the entire case of the prosecution is based on circumstantial evidence and there is no chain of circumstances, that would connect the present appellant with the alleged crime. The entire case of the prosecution was depended on the alleged affair between the accused persons, however, except hearsay statements made by the witnesses having known to such fact, no other reliable material is brought on record. It is submitted that there is not a single evidence which would prove an affair between the accused persons. 14.2 It is submitted that the Sessions Judge has failed to appreciate that there was absolutely no motive on the part of the accused No. 1 for commission of alleged offence. It is submitted that the entire case of the prosecution is based on the footing that the mother of the accused No. 1 was present and she had informed about the conduct of the accused persons. Despite the fact that the statement of said witness was recorded by the police and she was also available for deposing before the Hon’ble Court, she was never examined by the prosecution. 14.3 It is submitted that in absence of examination of crucial and important witness, and without even affording an opportunity to test the witnesses by cross-examination, the same cannot be used against the accused. It is submitted that it is the case of the prosecution itself that the accused persons immediately after the incident had left the place. However, for the reasons best known to the investigating agency, the cloths of the present appellants were found from the place of incident at much later stage from the very house, despite the fact that the investigating agency had already collected evidence from the place of incident on multiple occasions, when the cloths of the appellants were not found. It is submitted that the said fact itself is sufficient to show the biasness. 14.4 It is submitted that the Trial Court has referred to the so-called extra judicial confession. It is submitted that the said fact itself is sufficient to show the biasness. 14.4 It is submitted that the Trial Court has referred to the so-called extra judicial confession. Even the case of the prosecution, in so far as, extra judicial confession is considered to be proved then also the same would clearly point out that there was no prior preparation, conspiracy or attempt by the accused persons and it was only in the spur of the moment the incident has occurred and therefore, the same cannot be said to be an offence that qualifies the requirement as contemplated under Section 300 of the Code. 14.5 It is submitted that the Trial Court has proceeded with the matter with prejudice against the accused persons. It is submitted the Trial Court, as observed in the impugned judgment, in of considered view that in cases of murder, death penalty has to be awarded for a deterrent effect. The trial court has proceeded with a prejudice in the matter against accused persons and with a preset mind to award death penalty, ignoring the principal of “Rarest of Rare Case.” 14.6 It is submitted that the Trial Court while awarding the sentence has acted in such a casual manner with a premeditated mind. The Trial Court has not considered the mitigating circumstances involved in the present case. 15. Learned Advocate for accused No. 2 submitted that the case of the prosecution is that both the accused had an illicit relationship and the deceased was an obstacle in that relationship, and hence both the accused conspired together and killed the daughter of the present appellant-accused. And this motive was given by the complainant in the FIR itself. Though no evidence of any kind is given to prove that the appellant had any relations with the accused no. 1. 15.1 It is submitted that bare perusal of the complaint itself shows that the present appellant was named just on hearsay rumours that she had an affair with the accused No. 1, suggesting an absolute false case made so as to implicate. It is submitted that the illicit relation of the accused was all of a sudden public knowledge as soon as the incident took place. It is submitted that the illicit relation of the accused was all of a sudden public knowledge as soon as the incident took place. Even though the motive claimed by the prosecution is that they wanted to keep their relationship hidden and the deceased was proving to be hurdle in that and hence, she was murdered. This seems counterproductive when everyone including the complainant was already aware of the affair. 15.2 It is submitted that the trial Judge has erred in considering vague hearsay statements as evidence with the prosecution providing any evidence proving the relations between the two accused. 15.3 It is submitted that the only statement that the prosecution relied upon is the statement of the mother of the accused No. 1, Prabhaben, but Prabhaben is not examined by the prosecution in this case. And hence, the only alleged witness who could prove the presence of the present appellant at the scene of the offense was not examined. 15.4 It is submitted that as per the examination of Khodabhai at Exhibit No. 24, he states that when he went to his house at around 12, his wife, the present appellant was home making food in the kitchen. And only after they had their lunch, they came to know about what had happened to their daughter and after this they went to the house of Umangbhai. This shows that the present-appellant was at her house when the alleged incident took place. 15.5 It is submitted that there are no eye-witness or direct evidence in this case to even prove the presence of the present appellant at the scene of the offense or even to prove any nexus between the two accused, hence making this case completely circumstantial in nature. That when the forensic evidence is taken into consideration, there is no blood found on the clothes of the present-appellant. That, no prints found of the knife that was found at the crime scene. There is absolutely no forensic evidence linking the present-appellant to this case. 15.6 It is submitted that the Judge has erred in not appreciating that the present appellant was a grieving mother who was present to mourn her daughter but was falsely implicated in this offense because of baseless rumours, lacking any proof or evidence to sustain the order of conviction. 15.6 It is submitted that the Judge has erred in not appreciating that the present appellant was a grieving mother who was present to mourn her daughter but was falsely implicated in this offense because of baseless rumours, lacking any proof or evidence to sustain the order of conviction. 15.7 It is submitted that the trial Court has erred in relying heavily on the statements of the accused given to the Police as can be seen in Para No. 41 of the judgment, but under Section 25 of the Evidence Act any statement made to the police would be inadmissible as evidence. That the trial Court has erred in its judgment on Page No. 79 in Para No. 84 in without any bases or evidence making a presumption that it was the present appellant that was holding the deceased as accused no. 1 stabbed her, as there was no blood found On the present-appellant Or her clothes and that there is no witness testimony or statement that even mildly hints towards the present-appellant being involved in the offence. 15.8 It is submitted that the learned Judge has erred in considering this case as ‘Rarest of the Rare’. The lower court, as can be seen through the order passed, is adamantly sticking to the idea that the present-appellant is a mother who has brutally murdered her own daughter for an affair with the accused no. 1. And that this offence is so heinous and against the very foundation of societal norms that it has to be considered ‘rarest of rare’. But the court has erred in taking into consideration the evidence provided in the case and that the present appellant is an innocent grieving mother who is not an accused but a victim of brutal crime. 16. Having heard learned Advocates for the parties and having perused documents on record, it appears that Charge Exh.7 dated 05.02.2019 came to be framed, wherein it was stated that accused No. 1-Umangbhai Lalitbhai Thakkar was unmarried and accused No. 2-Kankuben W/o Khodabhai Thakor was married. Both had love affair/illicit relationship with each other and the deceaseddaughter of Kankuben, Kinjal alias Sonal knew about the same. Both had love affair/illicit relationship with each other and the deceaseddaughter of Kankuben, Kinjal alias Sonal knew about the same. She did not like the immoral relationship between them and as deceased-Sonal was obstruction in their relationship, both of the accused met first at Sami or Dhama village 10 days before the incident and came to an agreement to murder Sonal and hatched a criminal conspiracy to murder Sonal. By doing so, both the accused committed an offfence under section 120B of Indian Penal Code, 1860. Furthermore, on 11.07.2018, in the house of Prakashgiri Babugiri, which is taken on rent by accused Umang’s father, Lalitbhai Thakkar, at around 10 to 11 o’clock in the morning, as a part of criminal conspiracy to murder deceased-Sonal, both accused, in collusion with each other, with the knowledge that it would result in her death, intentionally inflicted five fatal blows of knife to Sonal in vital part of her stomach and by slitting her throat and causing fatal injuries in stomach and throat, caused her death by murder. By doing so, both the accused have committed an offence under section 302, 114 of Indian Penal Code, 1860. Further, though the notification of the Additional District Magistrate, Surendranagar regarding prohibition to keep arms was in force on the aforementioned date, time and place, the accused kept arms and thereby committed an offence punishable under section 135 of Gujarat Police Act, 1951 within the jurisdiction of this Court. 17. These case arose out of the reference made for confirmation as well as conviction appeals, which arose from the FIR registered for an incident dated 11.07.2018 at Zinzuwada Police Station, Surendranagar. 18. After the complaint being registered, the investigation was carried by the Investigation Officer. During the investigation, both the accused were arrested and produced before J.M.F.C. Patdi and Court remanded in judicial custody. The investigation was carried out and I.O. found sufficient evidence for charge-sheet. Thus, the police filed the charge- sheet against Umangbhai Lalitbhai Thakkar and Kankuben Khodabhai Panvecha for the offence punishable under section 302, 120(B) of Indian Penal Code and Section 135 of Gujarat Police Act. The charge-sheet was produced before the learned J.M.F.C. Patdi, which was registered as a criminal case no. Thus, the police filed the charge- sheet against Umangbhai Lalitbhai Thakkar and Kankuben Khodabhai Panvecha for the offence punishable under section 302, 120(B) of Indian Penal Code and Section 135 of Gujarat Police Act. The charge-sheet was produced before the learned J.M.F.C. Patdi, which was registered as a criminal case no. 665/2018 and as the offence was traible by the Sessions Court and learned J.M.F.C. Patdi having no power to try the same, hence, pursuing the section 209 of Cr.P.C. the said matter was committed before this 2nd Additional District Court, Dhrangadhra on 07/12/2018 and the same was registered as Sessions Case No. 28/2018. 19. Both the accused appeared before this Sessions Court. Thereafter, charge was framed against both the accused vide Exh.7 on 05/02/2019 and their pleas were recorded vide Exh.8 and 9, wherein, both the accused pleaded not guilty and therefore, the case was proceeded further. 20. The prosecution produced oral as well as documentary evidence to prove the present case. In the said matter, prosecution has examined 26 witnesses and produced 33 documentary evidences. Learned Add. P.P. filed the closing pursis on 23/12/2019 after producing all the evidences for the prosecution. 21. After completion of evidence on behalf of the prosecution and pursuing the evidences, Further Statements of both the accused under section 313 of Cr.P.C. were recorded on 06/01/2020 by this court. Wherein, both the accused denied all the allegations and offences as alleged against them and stated that they were wrongly implicated in the offences because the deceased was working in the house of accused Umang and her dead body was found from the house of accused Umang. The deceased Sonal had an affair and that person came from the second door in the house and forced the deceased to elope with him, but the deceased Sonal denied to elope with him and therefore, her unknown lover had murdered her. They further stated that they were innocent and they had not committed any crime. 22. PW-1-Navghanbhai Prabhubhai Bhalgamiya, Exh.10 is the panch witness to the panchnama of scene of offense. He has supported the case of the prosecution. This witness confirms the place of incident to be the residence of one Pankajgiri Bawaji and the articles like Duptta (apron), Hanky, Bed-sheet (cover of mattress), all of which were stained by blood and a knife. 22. PW-1-Navghanbhai Prabhubhai Bhalgamiya, Exh.10 is the panch witness to the panchnama of scene of offense. He has supported the case of the prosecution. This witness confirms the place of incident to be the residence of one Pankajgiri Bawaji and the articles like Duptta (apron), Hanky, Bed-sheet (cover of mattress), all of which were stained by blood and a knife. These clothes and articles were identified by this witness during his deposition. Through this witness the panchanama of the scene of offense is proved vide Exh.14. 23. PW-2-Hirabhai Thakore is examined vide Exh.15. He is the panch witness of the panchnama which was drawn on 12.07.2018 and articles connected to the offence were seized under such panchnama in presence of FSL officer. This witness has supported the case of prosecution and also has referred to the place where such panchnama was executed. The panchnama which is exhibited vide Exh.16, where place of offence is referred to as residential premises of Prakashgiri Babugiri Goswami, who had given the residential premises on rent to Lalitkumar Thakkar. From the panchnama, it is established that the FSL officer had arrived at the scene of offence and has examined setty in the bedroom of the house with mattresses and the blood stains on the cover of the mattresses, which was thereafter seized and during the course of deposition, identified by this witness. 24. PW-3 Dr. Rajkumar Kiritbhai Mashru is examined vide Exh.17. This witness is the Medical Officer, who had performed postmortem of the deceased, whom he has identified as female aged appropriately 17 years. During the deposition, he has exhibited postmortem report while he was in Forensic Medicine Department, PDU, Government Medical Collge, Rajkot. He has described the injuries sustained on the body of the deceases as under: “Injury No. 1 was one horizontal stab wound measuring 4 x 0.5 c.m. on the left side of front chest, which was 22 c.m. below sternal notch and was on the 1 c.m. left from the center line. The inner end of the injury was sharp and outer end was relatively blunt. The edge of the injury was sharply cut. Conducting the internal examination of the injury, the wound incised muscles of the seventh rib and inter coastal space and there was a horizontal wound measuring 3 x 0.5 c.m. on the left side of the liver. The inner end of the injury was sharp and outer end was relatively blunt. The edge of the injury was sharply cut. Conducting the internal examination of the injury, the wound incised muscles of the seventh rib and inter coastal space and there was a horizontal wound measuring 3 x 0.5 c.m. on the left side of the liver. The direction of the wound was on the below side and back side. Injury No. (2) was one horizontal stab wound measuring 3 x 0.5 c.m. on the right side of the front part of the abdomen, which was 26 c.m. below sternal notch and was on the 1 c.m. right from the center line. The inner end of the injury was sharp and outer end was relatively blunt. The edge of the injury was sharply cut. Conducting the internal examination of the injury, the wound was reaching cavity of the abdomen by incising the muscles of the abdomen wall and peritoneum, which was forming a horizontal wound measuring 3 x 0.5 c.m. on the right part of the liver. The direction of the wound was on the below side and back side therein. Injury No. (3) was one horizontal stab wound measuring 4 x 0.5 c.m. on the right side of the front part of the abdomen, which was 26 c.m. below sternal notch and was on the 1 c.m. right from the center line. Its inner end was going on uPW-ard side and the same was immediate below the upper injury. Its inner end was sharp and the outer end as relatively blunt. The edge of the injury was sharply cut. Conducting the internal examination of the injury, the wound was reaching cavity of the abdomen by incising the muscles of the abdomen wall and peritoneum and which was passing through the abdomen and incised the front wall of the main artery of the abdomen. The direction of the injury was on the back side, upper side and right side therein. Injury No. (4) was one horizontal stab wound measuring 5 x 0.5 c.m. on the left side of the front part of the abdomen, which was 26 c.m. below sternal notch and was on the 1 c.m. right from the center line, from where the small intestine was coming out. Its outer end was sharp and the inner end was relatively blunt. Its outer end was sharp and the inner end was relatively blunt. The edge of the injury was sharply cut. Conducting the internal examination of the injury, the wound was reaching cavity of the abdomen by incising the muscles of the abdomen wall and peritoneum and incised the small intestine. The direction of the injury was on the below side and back side therein. Injury No. (5) was one horizontal stab wound measuring 3.5 x 0.5 c.m. on the left side of the front part of the abdomen, which was 34.5 c.m. below sternal notch and was on the immediate left from the center line. Its inner end was sharp and the outer end was relatively blunt. The edge of the injury was sharply cut, from where small intestine was coming out. Conducting the internal examination of the injury, the wound was reaching cavity of the abdomen by incising the muscles of the left side of the abdomen and peritoneum and incised the small intestine below thereof. The direction of the injury was on the back side and below side therein. Injury No. (6) was one horizontal incised stab wound measuring 13 x 5 c.m. on the front side of the neck, which was 5 c.m. below from the left on the center line. The edge of the injury was sharply cut and soft tissues, muscles, wind pipe, food pipe and veins carrying blood were sharply cut. The wound was reaching through to spine.” 25. This witness has opined as under: “After completing P.M. following opinion was given regarding the death. As per my opinion, the death has occurred due to profuse bleeding following injury and due to shock. These injuries were inflicted by a sharp and edged weapon.” 26. This witness was shown knife article Mark-B, to this witness has given opinion that injuries sustained on the body of the deceased can be inflicted with use of this article. He has also identified cloths of the deceased, which were sealed after postmortem report. In the cross-examination of this witness, defence has questioned him with regard to probable time of sustaining of injuries and probable time of death. He has also opined that the probable time of death was between 12:00 to 24:00 hours before carrying out of the postmortem. He has also identified cloths of the deceased, which were sealed after postmortem report. In the cross-examination of this witness, defence has questioned him with regard to probable time of sustaining of injuries and probable time of death. He has also opined that the probable time of death was between 12:00 to 24:00 hours before carrying out of the postmortem. Though questions were put to this witness regarding shape of knife and the edge specifically with regard to sharpness and pointedness of the knife, but this witness has confirmed the case of prosecution by denying the questions posed in this regard. The postmortem note exhibited vide Exh.19 gives opinion of this witness as “died due to shock and hemorrhage on account of multiple injuries present over the body produced by sharp edged penetrating object.” 27. PW-4-Vishnubhai Morubhai Panvecha is examined vide Exh.20. He is the informant and brother-in-law of accused No. 2 and uncle of the deceased. In his deposition, he has deposed that on 11.07.2018, in the afternoon, when he was at his residence, he received information, on the basis of which he proceeded to the residence of one Umang (accused) and when he reached at his residence, he found dead body of his niece lying on the setty inside his house. In his deposition, he has also deposed that there was illicit relationship between Umang and his sister-in-law Kanku and as they were planning to elope, which was not agreed upon by the deceased, the incident has taken place. This witness has therefore attributed the motive to illicit relations between the accused. In cross-examination, suggestions were put by the defence Counsel with regard to assailant being lover of the deceased, who was pressurizing accused No. 2 to elope with him and upon her refusal to do so, has committed the murder. However, such suggestions were denied by this witness. Through this witness, FIR given on 11.07.2018 was exhibited, wherein version given by him with regard to place of incident and other details are consistent. 28. PW-5/Prahladbhai Nathabhai Panvecha is examined vide Exh.22. However, such suggestions were denied by this witness. Through this witness, FIR given on 11.07.2018 was exhibited, wherein version given by him with regard to place of incident and other details are consistent. 28. PW-5/Prahladbhai Nathabhai Panvecha is examined vide Exh.22. He is the distant relative of accused No. 2, who also came to know about the incident at around 03:00 pm on 11.07.2018 when he was at his residence and therefore, he proceeded to the house of Umangbhai (accused), where, upon reaching, he found that deceased-Sonal was lying in blood pool inside the house and thereafter, she was removed to Rajkot Government Hospital for the purpose of postmortem and after postmortem, dead body was handed over for rituals. This witness has also attributed motive as long time illicit relations between Umang and Kanku. In the cross-examination, he has stood by the case of prosecution. However, in answer to one question regarding knowledge of illicit relations, he has deposed that deceased Sonal had never communicated about the illicit relations at any time prior to incident. 29. Similarly, PW-6/Gitaben Prahladbhai Panvecha is examined vide Exh.23. She is aunt of the deceased and wife of PW-5. She has deposed quite identically to PW-5 regarding knowledge of incident through public. This witness also refers to presence of one Prabhaben, mother of Umang (accused). This witness has deposed that it was Prabhaben who had arrived to their residence along with her daughter Sonal and at that time, Umang was also present in the house. The emphasis of the prosecution is that the witness has supported the case of prosecution against Kankuben that she was last scene together with her daughter at the scene of offence. It was argued that Section 6 of the Evidence Act be invoked as a strong circumstance, where accused and the deceased were seen together as a part of continuing conspiracy and it was Kanku (accused), who took her daughter to the residence of Umang, where incident took place. 29.1 This argument of the State may not be accepted, particularly when this witness is merely a hearsay witness with regard to presence of Kanku (accused) along with her daughter as was conveyed to this witness by Prabhaben. It is pertinent to observe that Prabhaben, who is mother of Umang and a natural witness in her own house, has not been examined as a witness. It is pertinent to observe that Prabhaben, who is mother of Umang and a natural witness in her own house, has not been examined as a witness. Therefore, in absence of direct evidence in the form of eyewitness, the case of prosecution for last seen together cannot be accepted. 29.2 Moreover, invocation of Section 6 is only available when circumstance which is sought to be established by the prosecution is directly connected with the ongoing offence as the requirement of Section 6 is to establish a fact which is so connected with a fact in issue so as to form part of the same transaction. In this case, even if the Court believes that Kanku brought deceased Sonal to the house of accused Umang, still the prosecution has not established the case beyond reasonable doubt that there was previous meeting of mind between the two accused and as a part of conspiracy, has brought deceased Sonal to the house of Umang. Therefore, the Sessions Court has not recorded conviction under Section 120B, though the same was part of charge. This Court also does not find any evidence from the depositions of the aforesaid three witness to indicate meeting of mind to sustain charge of Section 120B of IPC. 30. PW-7/Khodabhai Mulubhai Panvecha, Exh.24 is the husband of accused Kanku and father of the deceased. This witness has not supported the case of prosecution and has therefore been declared hostile. This witness, being the husband of accused Kanku, is the most relevant witness when it pertains to the motive of illicit relations between Umang and Kanku. However, with regard to motive, though he has been cross-examined by the Public Prosecutor, but has denied to the fact that he heard from villagers that his wife is having illicit relations with accused Umang, because of which his daughter Sonal was facing depression. 31. PW-8/Dharaben Bhalabhai Dabhi, Exh.25 is a panch witness to the inquest panchnama on 11.07.2018. This witness has supported the case of prosecution and has deposed that during the course of panchnama, she has examined the body of the deceased and has found injuries on her stomach and neck and blood was still oozing out from the neck where handkerchief was placed. The panchnama was exhibited vide Exh.26. The deposition and the panchnama are consistent to each other. The panchnama was exhibited vide Exh.26. The deposition and the panchnama are consistent to each other. In defence, questions were asked with regard to timing of the panchnama to set up a defence that the panchnama was executed in her absence and she has simple signed the document. With regard to timing of execution of panchnama between 17:00 hours to 17:45 hours, suggestion was made that during this time, dead body was at Dasada or Patdi Hospital, which suggestion is denied by this witness. 32. PW-9/Monghiben Thakore, Exh.27 is the witness to arrest panchnama of the accused persons. She has confirmed the contents of the panchnama and through this witness, arrest panchnama Exh.29 was exhibited, which included seizure of cloths worn by the accused persons. In cross-examination, she is consistent with her deposition. In evidence in chief, she has identified all the articles which were seized at the time of execution of the panchnama on 12.07.2018 33. PW-10/Govindbhai Bhagubhai Bhalgamiya, Exh.30 is an important witness being the panch witness of discovery panchnama during which cloths worn by accused No. 1 at the time of incident were discovered. Through this witness, discovery panchnama was exhibited vide Exh.32. This witness has supported the case of prosecution in toto. 34. Exh.32 is a document executed in two parts, first part being executed at Zinzuwada Police Station where this witness and co-panch witness were summoned and were made to understand about the proceedings of execution of panchnama. In presence of this witness, accused Umang expressed his willingness to show place within his residential premises where he has hidden cloths worn by him at the time of committing the offence. After indicating the procedure, the police party proceeded to the place marked by accused as per the directions given by accused Umang. The vehicle was taken to the place as directed by him and thereafter inside the house, upon entering the room on the road side of the house, where there was a steel cupboard. Accused Umang asked for moving of the steel cupboard, behind which cloths were discovered, which carried bloodstains. Under this panchnama, cloths were sealed. These cloths were identified by the witness during his deposition. In the cross-examination, he has denied the suggestion that he was not present at the time of execution of panchnama and accused Umang had removed the cloths from the hidden place. 35. Under this panchnama, cloths were sealed. These cloths were identified by the witness during his deposition. In the cross-examination, he has denied the suggestion that he was not present at the time of execution of panchnama and accused Umang had removed the cloths from the hidden place. 35. PW-11/Chodabhai Shivabhai Pagi, Exh.33 is the panch witness of seizure of cloths of the deceased. This witness has signed panchnama Exh.35 of the cloths which were removed for the purpose of postmortem and handed over to investigation. This witness has also supported the case of prosecution. In cross-examination, he has denied the suggestion that he has only seen colour of the cloths. He has also denied that he has merely signed on the ready panchnama. 36. PW-12/Chirag Dashrathbhai Patel, Exh.36 was the Scientific Officer, who was performing duty of Mobile In-way Van of FSL at Surendranagar. This witness was summoned on the scene of offence. In his deposition, he has deposed regarding his visit to the scene of offence as he has given description of the layout of the room with furniture establishing the wooden setty, where there was mattress, which was having extensive bloodstain and also napkin lying there with bloodstain. The scientific articles were collected and sealed under the panchnama in presence of respective panch witness. In the cross-examination, defence has not put any question which would affect the case of prosecution. Through witness, Exh.37 is proved, which is report of spot inspection. The examination of the spot inspection report and the deposition of the FSL officer and the panchnama finds consistency with regard to scene of offence and recovery of articles. 37. PW-13/Kalyanbhai Dalabhai Parmar, Exh.38 is the Police Head Constable, who was performing duty at Zinzuwada Police Station and in the course of his duty, accompanied with ‘yadi’ taken dead body for postmortem at the Rajkot Civil Hospital and the cloths removed for the purpose of postmortem from the dead body were handed over to the PSO. He has identified muddamal article Nos. 6 to 9 as the cloths which he had handed over to the Police Station after receiving the same from the Doctor. He has identified muddamal article Nos. 6 to 9 as the cloths which he had handed over to the Police Station after receiving the same from the Doctor. Through witness, invoking Section 165 of the Evidence Act, questions were put by the Court pertaining to the statement of this witness recorded on 12.07.2018 by one Shri M.D. Jadeja of Zinzuwada Police Station in connection with CR No. 23 of 2018, to which this witness has replied that no such statement has been recorded. Yet another question was also put by the Court regarding handing over of the cloths of the deceased to PSI M.D. Jadeja, which was also denied. To another question asked by the Court regarding statement dated 12.07.2018 recorded by the Investigation Officer, this witness has answered that statement dated 12.07.2018 was his statement and at the relevant time, during examination in chief, by the Public Prosecutor, handing over of the cloths of the deceased to M.D. Jadeja in presence of panchas instead of handing over to PSO, this witness has answered that variation arose as he has not read his own statement prior to recording of his evidence. In the opinion of the Court, handing over of the cloths to any police officer after the postmortem of the deceased is an important circumstance. However, such fact will have no bearing on the case of the prosecution or the defence in view of exhibiting of the panchnama as well as supported by the evidence of an independent panch witness. 38. PW-14/Karsanbhai Rajshibhai Visavadia, Exh.39 is the neighbour of accused Umang and resided just behind the house of accused Umang when the incident took place. On the date of incident, when he returned home, he saw crowd near the house of accused Umang and upon inquiry, came to know about the accident, where deceased Sonal was lying dead in a pool of blood in setty in the room of house of accused Umang. To this witness, defence had put questions pertaining to time of his arrival from his work to suggest that there is discrepancy in the timing when the offence was disclosed to the people and the presence of Prabhaben, mother of accused Umang at the place when he arrived. 39. The other two witnesses, PW-15/Vasabhai Pabhabhai Thakore, Exh.40 and PW-16/Taraben Vasabhai Pagi, Exh.41 are also neighbours of accused Umang, but have not supported the case of prosecution. 39. The other two witnesses, PW-15/Vasabhai Pabhabhai Thakore, Exh.40 and PW-16/Taraben Vasabhai Pagi, Exh.41 are also neighbours of accused Umang, but have not supported the case of prosecution. 40. PW-17/Jesingbhai Gandabhai Panvecha, Exh.44 is a witness to the fact that when he was at his residence, he was informed about the incident and he immediately proceeded there and found deceased Sonal lying on setty inside the house of accused Umang and thereafter, dead body of deceased Sonal being removed from the house to be taken to Patdi Government Hospital for postmortem. However, thereafter body was taken to Rajkot Civil Hospital for the purpose of postmortem. In cross-examination, this witness has denied the suggestion put by the defence with regard to the fact that he has not seen the dead body of the deceased and when he arrived at the place of offence, the dead body was already removed for postmortem. 41. PW-18/Sagarbhai Maheshbhai Karia, Exh.46 is the cousin brother of accused Umang. This witness has not supported the case of prosecution. The prosecution has examined this witness to whom accused Umang had made extra judicial confession made by accused Umang to his mother about committing of offence. As this witness has referred to such confession being made to Gitaben, this witness cannot be termed to be a witness, who supported case of prosecution. 42. PW-19/Hussain Iqbalbhai Bhatti, Exh.47 is the panch witness of recovery of Hero Honda Motorcycle, but this witness is also declared hostile as he has not supported case of prosecution regarding recovery of motorcycle. His co-panch witness PW-20/Mustakbhai Akbarbhai Bhatti, Exh.49 has also not supported case of prosecution regarding recovery of motorcycle from accused No. 1. However, the recovery of motorcycle has no connection with offence except the fact that this motorcycle was intercepted by Police. 43. PW-21/Gitaben Maheshbhai Karia, Exh.51 is maternal aunt of accused Umang. She is examined by the prosecution as a witness of extra judicial confession made by accused No. 1. However, this witness has not supported case of prosecution. 44. PW-22/Bachubhai Mahadevbhai Tharesa, Exh.52 in his deposition has indicated that on the date of incident, when he came to know about the incident, he had proceeded to the place where he saw daughter of Khodabhai lying in pool of blood in her neck as well as stomach. However, this witness has not supported case of prosecution. 44. PW-22/Bachubhai Mahadevbhai Tharesa, Exh.52 in his deposition has indicated that on the date of incident, when he came to know about the incident, he had proceeded to the place where he saw daughter of Khodabhai lying in pool of blood in her neck as well as stomach. At that time, Lalit and Umang were not at the residence, but wife of Lalit, viz. Prabhaben and Kanku were present. In the cross-examination, defence has put question with regard to motive of illicit relations, to which this witness has answered that prior to incident, he was not aware about such illicit relationship. 45. PW-23/Prakashgiri Babugiri Goswami, Exh.53 is a witness examined by the prosecution to establish occupation of residential house by accused No. 1 and his family. The defence has not put any relevant questions except for the time at which he got information about the incident. 46. PW-24/Meghrajsinh Dhirubhai Jadeja, Exh.55 is the Investigation Officer of this offence. In his deposition, he has deposed that while he was on his duty as a PSI, Zinzuwada Police Station, an information about murder of a girl was received between 12:00 to 13:00 pm at village Dhama, pursuant to which he proceeded to the residence of Umang, where he found Prabhaben, mother of Umang present, with whom he entered the house and found dead body of deceased and therefore, he primarily put questions to Prabhaben inquiring about the dead body. She identified her to be Sonal @ Kinjal and thereafter message was sent to the family of deceased and FIR was thereafter registered and CR No. 23 of 2018 was filed with Zinzuwada Police Station. In examination in chief, this witness has narrated about the formal procedure undertaken by him in his capacity as IO so also the statements recorded with regard to Police statement recorded with regard to witness who was declared hostile. 47. The prosecution has thereafter examined PW-25/Jitendrasinh Dilubha Zala, Exh.73 and has projected him as the main witness, to whom accused Umang made extra judicial confession regarding the incident. This witness has deposed that while he was on duty in the morning hours, under the directions of his superior PSI of Maliya Miyana Police Station, he intercepted one motorcycle and inquired about RC book. At that time, accused Umang was riding the motorcycle and was in extremely frightened condition. This witness has deposed that while he was on duty in the morning hours, under the directions of his superior PSI of Maliya Miyana Police Station, he intercepted one motorcycle and inquired about RC book. At that time, accused Umang was riding the motorcycle and was in extremely frightened condition. On his own, he disclosed to this witness that he has committed murder and has escaped from there. With such disclosure, the witness has immediately taken the accused to his Police Station for detailed inquiry, where he disclosed about his illicit relation with Kanku and the reason behind murder of daughter of Kanku. He has further deposed that when on 07.07.2018, Kanku met accused Umang at hospital, she told that Kinjal @ Sonal was not agreeable and therefore, she told Umang to either to convince her or to bring an end of her and accordingly, on 11.07.2018, when deceased Kinjal @ Sonal came to wash cloths at his house, in the fit of rage, he inflicted knife blows twice on her stomach and thereafter ran away from there and from there, he went to his aunt’s house at Maliya Miyana, where he made disclosure to his cousin and thereafter taking motorcycle, proceeded from Morbi to Kutch. In the cross-examination, this witness confirms about the interception of the motorcycle as answer to the questions with regard to cloths worn by accused Umang which contain blood stains and prior to his interception, had no connection with accused Umang. 48. The Court may first address the issue of confirmation of the death sentence awarded to both the convicts under the communication dated 06.04.2021 by the Principal District and Sessions Judge, Surendranagar under Section 366 of Cr.P.C. read with Clause 317 of Criminal Manual containing the communication dated 05.04.2021 addressed by the Second Additional Sessions Judge, Dhrangadhra alongwith the summary of the Sessions Case for the confirmation. 49. It would be appropriate to refer to certain decisions in this regard. This Court in case of Trikambhai @ Tiko Ravajibhai Thakor vs. State of Gujarat, 2001 (1) GLH 177 . In this judgment, principles were laid down to be applied to consider question whether the death sentence can be awarded which are as under: “29. It has always been a great predicament with the Judges in the Court as and when a choice is to be made between death sentence and life imprisonment. In this judgment, principles were laid down to be applied to consider question whether the death sentence can be awarded which are as under: “29. It has always been a great predicament with the Judges in the Court as and when a choice is to be made between death sentence and life imprisonment. A study of the case, as aforesaid, and the analysis of various considerations, which have been taken note of by the Courts in such cases, make out that the following principles are to be applied when it comes to the question of considering as to whether the death sentence is to be awarded or life imprisonment only: (i) Life imprisonment is the rule and death sentence is an exception. (ii) Except in grave cases of extreme culpability, the extreme penalty of death need not be inflicted. (iii) While considering the circumstances and the manner in which the crime has been committed, the circumstances of the offender should also be considered before opting for death sentence. (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 just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised. (v) Not only the rights of the criminal but also the rights of the victim of crime and the society at large have to be considered so that a punishment befitting to the crime is imposed so as to reflect public abhorrence of the crime. (vi) Aggravating factors cannot be ignored but at the same time mitigating circumstances are also to be taken into consideration. (a) Aggravating circumstances may include a case in which the crime has been committed after previous planning and involve extreme brutality and a case in which the crime involves exceptional depravity. (b) Mitigating circumstances to be taken into consideration may be as under: That the offence was committed under the influence of extreme mental or emotional disturbance. The age of the accused. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society. The probability that the accused may be reformed and rehabilitated. The accused believed that he was morally justified in committing the offence. That the accused acted under the duress and domination of another person. The age of the accused. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society. The probability that the accused may be reformed and rehabilitated. The accused believed that he was morally justified in committing the offence. That the accused acted under the duress and domination of another person. That the condition of the accused shows that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. That the accused is not a hardened criminal but the crime is a result of sudden impulsive act making him an insensible criminal. (vii) Unless the nature of the crime and the circumstances of the offender reflect that the criminal is a menace to the society a sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose lesser punishment and not extreme punishment of death, which should be reserved for exceptional cases only. (viii) The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of victim. (ix) Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against a criminal. Justice demands that courts would impose a punishment befitting a crime so that the Courts reflect public abhorrence of the crime. (x) The 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. (xi) Courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things. (xii) Death sentence is to be given only in ‘rarest of rare’ case. To determine as to whether a particular case is a ‘rarest of rare’ case or not, the answers to the following questions would be helpful: (a) Is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence. To determine as to whether a particular case is a ‘rarest of rare’ case or not, the answers to the following questions would be helpful: (a) Is there something uncommon about the crime which renders the 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 after according maximum weightage to the mitigating circumstances, which speak in favour of the offender.” 50. In Para-225 of the judgment the Sessions Judge has attributed reasonings to treat this case to be in the category of “Rarest of the Rare” as considering the modus operandi of the accused, the deceased Sonal was an obstruction for both the accused in enjoying their physical pleasure and when deceased Sonal, a minor was in helpless condition, they cut her esophagus, main respiratory tract and blood vessels with a knife like a wolf and a butcher and brutally murdered by stabbing five times in the vital part of abdomen and by slitting the throat, which makes their case “Rarest of the Rare” and accused Umang is absconding from the place of offence after committing the offence. Thus, the case against the accused falls under the category of the “Rarest of the Rare’ cases. 50.1 Further reasoning given is that deceased Sonalben used to accompany her mother-accused Kankuben, to help her and therefore, deceased Sonalben came to know about the illicit relationship between both the accused. It is obvious that deceased Sonal would not liking her mother Kankuben’s illicit relationship with accused Umang. Therefore, both the accused brutally murdered Sonalben as she was an obstruction in their relationship. Accused Kankuben caught Sonal from behind and accused Umang inflicted five fatal blows of knife on the left and right sides of the stomach, cutting her esophagus and intestines. Further, like a butcher, accused Umang slit her throat and respiratory tract by inflicting a fatal blow of knife. At that time, when deceased Sonal tried to defend herself, she was inflicted with blows of knife on the left as well as right sides of the abdomen. Imagination of the scene itself causes shudder. As Sonal was an obstruction in fulfillment of her lust, accused Kankuben-real mother of the deceased Sonalben, brutally murdered her in collusion with accused Umang. At that time, when deceased Sonal tried to defend herself, she was inflicted with blows of knife on the left as well as right sides of the abdomen. Imagination of the scene itself causes shudder. As Sonal was an obstruction in fulfillment of her lust, accused Kankuben-real mother of the deceased Sonalben, brutally murdered her in collusion with accused Umang. In this way, a real mother Kankuben and accused Umang committed a very heinous crime, which is the gravest offence. The criminal act done by the accused is brutal and dreadful to such an extent that it cannot be described. For the offence of murder, there is provision for life imprisonment and death penalty. Normally, the punishment of life-imprisonment is awarded by the Courts for the offence of murder and despite that, number of offences of murder are increasing day-by-day and the value of human life seems to be worth a penny. As the number of incidents of such heinous offences are increasing day-by-day instead of decreasing despite the provision for life imprisonment in the law, in my opinion “there is no love without fear” and everybody fears death, therefore, it is the need of hour that only death penalty for such offences can prevent such grave offences, which can be given by Courts only. It is quite necessary for the Courts to change their attitude in order to save our society from such grave offences. In present times, women are considered equal to men. Nowadays, women are also involved in such grave offences in many cases. Therefore, in my opinion, while awarding punishment, the court should consider only the graveness of the offence without making discrimination on the basis of gender, whether male or female. In present times, anti-social elements commit grave offences keeping women and child as a cover. Therefore, if Kankuben is given a lesser punishment for being a woman, it would be an injustice to deceased Sonal and this can never be done by the Courts. In Hindu society and in India, women are considered equal to goddess. As per the verse “Yatra nariyastu pujyante, ramante tatra devta” which means that “God resides in those clan and family where the women are worshiped” i.e. treated with respect and honour. In Hindu society and in India, women are considered equal to goddess. As per the verse “Yatra nariyastu pujyante, ramante tatra devta” which means that “God resides in those clan and family where the women are worshiped” i.e. treated with respect and honour. In the present case, Kankuben is a woman, and she should be considered as a goddess, but she has lost her qualities of a goddess and ruthlessly killed her own daughter, a helpless minor child, in collusion with her lover considering her to be an obstacle in fulfillment of her lust. Therefore, as Kankuben has lost her godliness, she is not liable for any mercy. The offence committed by both the accused is so much brutal and heinous that life imprisonment is not sufficient for such offences. Further, the principles laid down by the Hon’ble Supreme Court for such brutal and animal-like criminal acts are directly applicable to this case. Thus, considering the principles of justice established by the Hon’ble Supreme Court in its landmark judgments, the accused cannot be dealt with a tender attitude and mercy. 51. In the opinion of the Court, it was incumbent upon Sessions Court to undertake the exercise of balancing the aggravating circumstance with mitigating circumstance to justify treating this case as “rarest of the rare” case. The Sessions Judge has only on the basis of the nature of injuries sustained on the body of the deceased has concluded that murder was brutal and this appears to have been treated as an aggravating circumstance. The Sessions Judge ought to have taken into consideration the fact that the entire case is based on circumstantial evidence and there was lack of any direct evidence. 52. That the investigation of the role of accused No. 1 began on the basis of his confession that too before a police officer, who intercepted the accused. 53. That the case of the prosecution that accused wanted to elope, but deceased objected to it and it is at that stage the incident took place. Meaning thereby, it is not the case of the prosecution that it was a well planned cold blooded murder. This is particularly so as the prosecution has failed to make out the charge under Section-120(b) of IPC. In absence of this, the incident appears to have taken place at the spur of the moment. 54. Meaning thereby, it is not the case of the prosecution that it was a well planned cold blooded murder. This is particularly so as the prosecution has failed to make out the charge under Section-120(b) of IPC. In absence of this, the incident appears to have taken place at the spur of the moment. 54. The Sessions Judge has also erred in not taking into consideration the mitigating circumstance like the accused No. 1; Umang being young man 24 years and unmarried and accused No. 2; Kankuben being mother of the deceased. 55. Though no role is coming on record about inflicting of injury to deceased by the accused No. 2; Kankuben, the Sessions Court has gone on to rely upon the statement of the accused themselves about her role in holding the deceased from back, while accused No. 1; Umang assaulted. 56. From entire evidence on record, there is nothing to suggest that they are having any antecedents and that they are such a menace to the society that they would again commit such an offence. 57. The facts and circumstances of the case, in the opinion of the Court would not attract ‘Rarest of Rare’ category. The Court therefore, holds that ‘death penalty’ awarded to both the accused cannot be upheld and therefore, the Court may very usefully refer to yet another decision of this Court with the fact of gruesome murder of a child aged between 4-5 years and with regard to death sentence, this Court in case of State of Gujarat vs. Patel Akshaykumar S/o Kaushikbhai Ishwarbhai, 2019 (0) AIJEL-HC 240121, in paras-133 to 138 has held as under: “133. The death penalty touches our deepest instincts. Fear; pain; abhorrence; revenge; insecurity; honour; indignation; hatred and a multitude of other emotions influence our opinions. When we hear of a particularly vicious crime, or live with daily insecurity that only seems to be increasing, or are close to the victim of a brutal act, we are overcome by intense reactions and may then feel the perpetrator should be put to death. But, this is exactly why it is so important to take the time to reflect rationally about this issue - to base our opinion upon informed considerations consistent with our other values and the ends we really hope to achieve. 134. Everyone thinks human life is valuable. But, this is exactly why it is so important to take the time to reflect rationally about this issue - to base our opinion upon informed considerations consistent with our other values and the ends we really hope to achieve. 134. Everyone thinks human life is valuable. Some of those against the capital punishment believe that human life is so valuable that even the worst murderers should not be deprived of the value of their lives. They believe that the value of the offender’s life cannot be destroyed by the offender’s bad conduct even if they have killed someone. Some abolitionists don’t go that far. They say that life should be preserved unless there is a very good reason not to, and that those who are in favour of capital punishment are the ones who have to justify their position. 135. The medieval philosopher and theologian Thomas Aquinas made this point very clearly: “Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good......Therefore to kill a man. who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful.” Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing). 136. In the words of late Justice V.R. Krishna Iyer “Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with the delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.” 137. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.” 137. We are of the view that although there is a good deal of opposition to death penalty, yet it should remain on the statute book. One of the chief ends of the law of crimes is to punish the evildoer so as to set an example to other like-minded persons and to deter them from committing the crime. Although the primary purpose of punishment is to deter, by fear, others who may be disposed to commit similar crimes, yet the secondary purpose is to prevent a repetition of the wrongdoing by disablement of the offender. The most effective mode of disablement is the death penalty which is confined to murder, rape and murder, high treason or other similar offences. There is a good deal of opposition to death penalty and it is now usually restricted to cases where the crime is of a heinous nature and has been committed with a good deal of premeditation in cold-blood in a manner shocking the conscience of people in general. But still some are of the view that death penalty should be wholly abolished. In our opinion, it should remain on the statute book. Its presence there can itself act as a deterrent to those who may be disposed to commit pre-planned brutal murders of a shocking nature either with some base motive or on hire or for reward. In the matter of punishment as has been said above, the interests of the offender have to be weighed along with the interests of the society. If a particular offender is a menace to the society there should absolutely be no objection to inflicting the death penalty on him. The retributive aspect of the punishment is meant to gratify the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. If a particular offender is a menace to the society there should absolutely be no objection to inflicting the death penalty on him. The retributive aspect of the punishment is meant to gratify the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. People will not be disposed to resort to private revenge if they can have the offender brought to book and adequately punished for his crime through a Court of Law. Punishment of the wrongdoer is the vengeance of the wronged, and this reinforces the faith of the people in the administration of justice. If people can get away after committing serious crimes by being awarded nominal punishments, it may induce the person wronged and his friends and sympathizers to resort to private vengeance which is not at all desinable for maintaining peace and order in society. 138. In the overall view of the matter, more particularly, having regard to the aggravating factors vis-a-vis the mitigating circumstances, we are of the view that the case on hand does not warrant death penalty. At the same time, commuting death penalty to mere life sentence will also not be in the interest of justice: “Not all scars show Not all wounds heal Not all illness can be seen Not all pain is obvious Remember this before passing judgment” So said Avocado Wolfe. This quote applies not only while judging the accused, but also while judging the plight of the victim, if we take into account, the innocence, ignorance and in-expressiveness of the child. That is why it is said that though “silent” and “listen” are words spelled with the same letters, but for listening the silent cry of the child, justice would be an impossibility. The gruesome, brutal, and inhumane murder of the child, whose ambitions have been aborted and life aflame, calls for a very severe punishment though not of death penalty.” 58. The overall circumstances of the case and applying the principle of aforesaid judgment, the Court has come to the conclusion that the balance heavily tilts towards the mitigating circumstances. The nature of offence and the circumstances leading to committing of offence do not point out any aggravated factors to apply the principle of argument of the rare case to this fact. 59. The nature of offence and the circumstances leading to committing of offence do not point out any aggravated factors to apply the principle of argument of the rare case to this fact. 59. The Court may now examine the role of each accused; Umang as per the evidence adduced. The evidence of the witness PW-3, Exh.17, the Medical Officer, who performed the Postmortem Report establishes the injuries sustained by the deceased on vital part of the body and the use of sharp cutting weapon muddamal article knife Mark-B in inflicting such injuries. The witness has assigned the cause of death to such injuries and hence, the prosecution has proved beyond reasonable doubt the homicidal death. 60. The prosecution through PW-1, Exh.10 has proved the panchnama of scene of offense (Exh.14), the exact location of the offense. This place is the residential premises of the accused No. 1. 61. PW-23, Exh.53 was examined by the prosecution. This witness being the landlord of the premises has proved that this premises was in possession of the accused No. 1 and his family when the incident has taken place. 62. PW-2, Exh.15 has proved the seizure of articles from the scene of offense under the guidance of an FSL officer during spot inspection. This panchnama is Exh.16. 63. For the purpose of motive, the prosecution has examined the informant and the nearby relatives. PW-4, Exh.20, PW-5, Exh.22 and PW-6, Exh.33 have established the motive behind the offense to be the illicit relations between accused Umang and the mother of the deceased-Kankuben. 64. PW-10 was examined at Exh.30 who has proved the discovery panchnama Exh.32 by which the clothes of the accused which he had worn at the time of offense were discovered. The clothes were concealed by the accused-Umang after the offense and that the clothes did contain blood stains. 65. The FSL report vide Exh.69 and analysis report Exh.70 go on to establish the blood stain of the blood group of the deceased on the clothes of the accused-Umang. The blood group of the deceased is AB. This blood group was found on the clothes worn by the deceased at the time of her murder. Articles A/1, D/1 and D/3 are such clothes of the deceased with blood stains as AB blood group. 66. The clothes of the accused-Umang are Articles G/1, G/2 and G/3 and G/4. The blood group of the deceased is AB. This blood group was found on the clothes worn by the deceased at the time of her murder. Articles A/1, D/1 and D/3 are such clothes of the deceased with blood stains as AB blood group. 66. The clothes of the accused-Umang are Articles G/1, G/2 and G/3 and G/4. Out of this four articles, the blood stains were found on the clothes worn by accused on the upper part of the body. The analysis report shows the presence of Blood Group ‘AB’ on these cloths, which is the blood group of the deceased. 67. It may be pertinent to observe herein that Article-E/1, E/2 and E/3 are the cloths of the accused; Kankuben, which were as per the prosecution cloths worn by her at the time of offence, however, the Analysis Report does not show the presence of any blood stain on these cloths. 68. The aforesaid circumstances complete the chain of circumstance to establish the offence of homicidal death of Sonal against accused-Umang. In his house, the incident has taken place, the articles including knife is recovered, the cloths of Umang were discovered and it contained bloodstain of blood group of deceased and along with this, the strong motive of illicit affair. 69. Though two more circumstances, the prosecution has sought to rely the evidence of PW-25, Exh.73 for extra judicial confession, the close reading of his deposition as a Policeman on duty, where such disclosure took place will be clearly hit by Section-25 and Section-26 of the Evidence Act. Another aspect of his presence on the basis of version of Prabhaben, which has come on record through the deposition of the I.O. who recorded her statement. Prabhaben not being examined as a witness, her version through IO will not be relevant. 70. Against accused No. 2; Kankuben, the prosecution has sought to establish her presence at the time of scene of offence on the basis of evidence of PW-6, Exh.23. She has deposed that mother of Umang, Prabhaben had conveyed to her that Kankuben came to their house along with deceased; Sonal. The evidence of PW-6 is only a hear say evidence and cannot be relied upon. Prabhaben; mother of Umang though present and her statement was recorded has not been examined as a witness. She has deposed that mother of Umang, Prabhaben had conveyed to her that Kankuben came to their house along with deceased; Sonal. The evidence of PW-6 is only a hear say evidence and cannot be relied upon. Prabhaben; mother of Umang though present and her statement was recorded has not been examined as a witness. The cloths worn by Kankuben though seized under Panchnama did not carry any sign of blood stain, the FSL Analysis Report also does not find any blood-stain belonging to the blood-group of the deceased. 71. Attempt of learned Additional Advocate General to invoke Section-6 of Evidence Act to establish a circumstance as ‘last seen together’ can also not be accepted, firstly as the evidence as a hear say and secondly, the invoking principle of Res-gestae is for the purpose of any action in the continuing of the offence. In absence of any evidence to support any conspiracy under Section-120(b) of IPC, the Court does not deem it fit to invoke Section-6 of Evidence Act. 72. The role attributed to accused; Kankuben is of having held the deceased from behind, while accused; Umang inflicted knife blow on stomach and neck. The Sessions Court has committed an error in believing this theory by basing its findings on the statement of the accused themselves. In Para-228 of the Judgment, the Sessions Court has given findings of Kankuben having caught hold Sonalben from behind, however, no witness or circumstance is able to establish this fact. Apparently, the Sessions Court has given such findings only on the basis of statement of both the accused persons recorded during investigation. The Court has perused this statement from the record and proceedings. However, such a finding without any independent evidence is an erroneous finding of fact on which conviction cannot be based. 73. This leaves only motive of illicit relationship. Though the prosecution has established the illicit relationship as the motive, but the same is only qua the accused-Umang. From the overall reading of all the evidences, it cannot be said that Kankuben had motive to commit murder of her own daughter. Prosecution has failed to establish Section-120(b) of IPC, there is no evidence of her last seen together or her presence at the scene of offence. From the overall reading of all the evidences, it cannot be said that Kankuben had motive to commit murder of her own daughter. Prosecution has failed to establish Section-120(b) of IPC, there is no evidence of her last seen together or her presence at the scene of offence. 73.1 The Court has considered the further statement of the accused under Section-313 of Cr.P.C. wherein consistently both accused had taken stand that the lover of deceased came to the house of Umang and murdered. This version has no factual basis. Even in this statement, the identity of such person is not revealed nor any reason as to why such third person select the house of accused no. 1 to commit murder. Such a stand of accused does not inspire confidence of the Court and is made only for the sake. 74. The Prosecution has therefore, failed to bring on record any circumstantial evidence to establish the offence beyond reasonable doubt against accused-Kankuben. 75. With regard to conviction under Section-302 with Section-114 of IPC, the prosecution has not charged the accused for offence under Section-302 with Section-114 of IPC. There is no evidence by the prosecution of meeting of mind and any meeting between accused ten days prior to the incident. The Sessions Court has therefore, no recorded conviction for offence under Section-120B of IPC though charged. In so far as, Section-114 of IPC is concerned, this Court did not find any evidence of abatement or role of accused No. 2 as an abettor. In fact, this Court has held that the prosecution has not proved beyond reasonable doubt the presence of accused No. 2 at the place and time of offence. 76. In view of the aforesaid discussion, the Court confirms the conviction of accused-Umang for offense under Section 302 of IPC. However, the Court does not find case to fall in the category of “Rarest of the Rare.” Still considering the crime is of a very serious nature, involving murder of a young girl aged 17 years, this Court deems it fit to award rigorous imprisonment for life and sets aside the death sentence award. 77. The death reference is answered accordingly. 78. Criminal Appeal No. 712 of 2021 by accused Umang is rejected. 77. The death reference is answered accordingly. 78. Criminal Appeal No. 712 of 2021 by accused Umang is rejected. However, the judgment and order dated 31.03.2021 passed by 2nd Additional Sessions Judge, Dhranghdra, Surendranagar in Sessions Case No. 28 of 2018 is modified to the aforesaid extent. 79. Criminal Appeal No. 1524 of 2021 by accused Kankuben is allowed. The judgment and order dated 31.03.2021 passed by 2nd Additional Sessions Judge, Dhrangdhra, Surendranagar in Sessions Case No. 28 of 2018 is quashed and set aside. The appellant Kankuben is directed to be set at liberty, if not required in any other offense. 80. R&P be sent back to the concerned trial Court. 81. In view of the order passed in the main appeals, connected Criminal Misc. Applications do not survive. Disposed of accordingly.