JUDGMENT : Per Dr. Pushpendra Singh Bhati, J: 1. The accused-appellant in this appeal, through Jail, has been convicted and sentenced as below vide judgment of conviction and order of sentence dated 19.01.2023 (in Sessions Case No. 128/2018 - CIS Reg. No. 128/2018 - State of Rajasthan v. Rupa), passed by the learned Additional Sessions Judge, Banswara. Offence Sentence Section 302, Indian Penal Code 1860 Death Sentence 1.1. As indicated above, the accused-appellant had been convicted under the aforementioned provision, and while doing so, the learned Trial Court, being the Court of Sessions, had passed the death sentence against the accused-appellant vide the impugned judgment of conviction and order of sentence. Therefore, in accordance with Section 366 of the Code of Criminal Procedure 1973, the matter has been submitted before this Hon’ble High Court for confirmation of such sentence, by way of Murder Reference No. 01/2023. 1.2. We also have noticed that on behalf of the accused-appellant, an appeal being the above-numbered D.B. Criminal Appeal (Db) No. 77/2023 has been preferred against the impugned judgment of conviction and order of sentence. Accordingly, both the murder reference and the criminal appeal are being decided together by this common judgment. 2. Brief facts of the case are that the prosecution was set in motion by a written report (Ex.P. 1) dated 15.06.2018 submitted by the one Heera (PW-1) in Mahatma Gandhi Hospital, Banswara to the then present Head Constable Omprakash No. 567, Police Thana, Danpur, district Banswara. It stated that, on 15.06.2018 at around 02:00 am when he was sleeping outside his house, Reshma (daughter of the accused-appellant) came running and screamed that her father Rupa, is assaulting her mother (Iteri) and her brother (Dilip). Upon hearing the same, he ran towards the place of incident and in the light of torch, saw Rupa hitting his wife and son on their heads with lathi, with an intention to cause their death. After seeing PW-1 at the place of incident, the accused-appellant fled away from the spot. Thereafter, Heera (PW-1) called Bada, Prabhu Lal, Tulsi Ram on the spot of offence in question, wherein they saw Ittari and Dilip lying on the ground and they were having head injuries and blood was flowing out of their heads. Ittari died on her way to the hospital and Dilip was admitted to Mahatma Gandhi Hospital, Banswara for treatment. 3. Thereafter, Heera (PW-1) called Bada, Prabhu Lal, Tulsi Ram on the spot of offence in question, wherein they saw Ittari and Dilip lying on the ground and they were having head injuries and blood was flowing out of their heads. Ittari died on her way to the hospital and Dilip was admitted to Mahatma Gandhi Hospital, Banswara for treatment. 3. On the basis of the aforementioned report, the police registered a First Information Report bearing No. 92/2018 against the present accused-appellant for the offences under Sections 307 and 302 of the Indian Penal Code, 1860, and the investigation commenced accordingly. 3.1. During the course of the investigation, the police arrested the accused-appellant on 17.06.2018. Later on, after the death of Dilip during the course of his treatment, and after completion of the investigation, a charge-sheet under Section 302, IPC was filed by the concerned investigating authority. The accused-appellant was furnished the copy of the charge-sheet as required under Section 207 CrPC and accordingly, the Sessions Case bearing No. 128/2018 was registered against the accused-appellant. 4. Thereafter, the charges were read over to the accused-appellant, and since he denied the same and claimed trial, the trial of the case commenced accordingly before the learned Trial Court. 5. During the course of Trial, on behalf of prosecution, 19 witnesses were produced for examination, 37 documents were exhibited and 2 articles were produced. 6. After recording of the evidence of the prosecution witnesses, during trial, the statement of the accused-appellant was recorded under Section 313 CrPC, during course whereof, he stood by the denial of the charges and the contents of the statements of the prosecution witnesses in toto, however, he did not adduce any evidence in defence. Thus, since the accused-appellant pleaded ‘not guilty’ and claimed to be innocent while challenging the veracity of the prosecution’s case and alleging its evidence to be unworthy of credit, he was made to stand the trial, and the trial proceeded accordingly. 7. The learned Trial Court, to reiterate, after due scrutiny of the evidence available on record and after duly analyzing the rival contentions, passed the impugned judgment of conviction and order of sentence, as above. Thereafter, upon his failure to secure acquittal order before the learned Trial Court, the accused-appellant challenged the said judgment convicting and sentencing him. 7. The learned Trial Court, to reiterate, after due scrutiny of the evidence available on record and after duly analyzing the rival contentions, passed the impugned judgment of conviction and order of sentence, as above. Thereafter, upon his failure to secure acquittal order before the learned Trial Court, the accused-appellant challenged the said judgment convicting and sentencing him. At this stage, it is noted that the prosecution story was developed on the strength of testimonies of the eye witnesses given by PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8 and it was supported by the recovery of weapon of the offence and clothes of the deceased at the instance of the accused. 8. We have heard Mr. Vineet Jain, learned Senior Counsel assisted by Mr. Kuldeep Sharma, Pro-Bono Counsel and Mr. Vijay Kumar appearing on behalf of petitioner and Mr. Deepak Choudhary, learned GA-cum-AAG appearing on behalf of the State, as well as perused the record of the case. 9. Before adverting to the evidence adduced, it would be expedient to notice the defence plea for a purposeful appreciation thereof. 10. Learned Senior Counsel for the petitioner (accused) has drawn attention of this Court to the fact that in the instant case, the accused Rupa stands accused of causing death of his own wife and son, however, the prosecution is absolutely silent on the motive for the said incident. Not a whisper has been alleged as to why the accused, who otherwise was having admittedly no quarrel or matrimonial or domestic disturbance, would take the extreme step of murdering his wife and son. 10.1. Learned Senior Counsel further submitted that the prosecution may argue that in cases of eye-witnesses, motive is not of much relevance, however, when the nature of offence as alleged, is the case of uxoricide (murder of wife) and filicide (murder of son), the reason behind the said act cannot be brushed away lightly, because it is against the human nature when a person takes resort to murder his own kith and kin, particularly when there is absolutely no allegation, whisper or evidence that there was any reason for him to take this extreme step. Under such circumstances, when the prosecution is absolutely silent on the motive, it becomes essential that the evidence of the eyewitnesses is scrutinized with greater circumspection and is corroborated material particulars before it is relied upon. 10.2. Under such circumstances, when the prosecution is absolutely silent on the motive, it becomes essential that the evidence of the eyewitnesses is scrutinized with greater circumspection and is corroborated material particulars before it is relied upon. 10.2. Learned Senior Counsel also submitted that the prosecution in this case has examined as many as 5 eyewitnesses i.e. PW-1 to PW-5, however, in the FIR which has been lodged by Heera (PW-1), he only mentions the name of one Reshma, on whose cries, he rushed to the place of occurrence. As far as the other witnesses are concerned, namely Jeeva (PW-3) and Bedi (PW-4), their names do not find mention in the FIR as the persons, who reached on the spot and saw the alleged actual assault being committed by the accused. 10.3. Learned Senior Counsel further submitted that as far as the PW-2 (Beda) is concerned, the FIR narrates that after the accused ran away, Heera called out and summoned Beda along with Prabhulal and Tulsi Ram, upon which, they came on the spot, which makes it apparent that Beda too did not witness the assault and reached the place of occurrence subsequently along with Tulsi Ram (PW-6) and Prabhulal (PW-8). Both these witnesses PW-6 and PW-8 in their evidence categorically mention that they reached the place of occurrence after the accused had run away, which makes it apparent that Beda himself is not an eyewitness. This leaves the prosecution with the two so-called eyewitnesses as far as the act of the accused is concerned i.e. PW-1 Heera and PW-5 Reshma, the daughter of the deceased and the accused. 10.4. Learned Senior Counsel also submitted that the statement of Heera (PW-1) upon examination would reveal that he claims in his chief that he along with his daughter-in-law Jeeva, Beda and Bedi, all four reached the house of the accused on hearing the screams of Reshma and saw the accused hitting both the deceased. He further claims that he saw the accused in the light of torch which he carried and on seeing them, the accused ran away. He further claims that he saw the accused in the light of torch which he carried and on seeing them, the accused ran away. The evidence of this witness clearly reveals that in his examination-in-chief, he has made a material improvement which are contrary to his own FIR, wherein he has made three other persons as eyewitnesses and the same is admittedly an embellished and improved version, as it is absolutely missing from the FIR of which, the said witness is the author. 10.4.1. Learned Counsel in continuation submitted that Heera (PW-1) claims to have seen the accused assaulting the deceased in the light of the torch. The same is also rendered suspicious, because as per the FIR (Ex.P.-1), PW-1 alleges that Reshma (PW- 5) screamed out of fear and said that her father Rupa was assaulting her mother and brother. If the aforementioned version set out in the FIR itself is correct, then the identity of the accused was nowhere in doubt and there was no need for this witness to go and confirm the same by using a torch to see by throwing light on the person assaulted. Again, at the cost of repetition, learned senior counsel submitted that there is absolutely no motive for the alleged act of the accused. 10.4.2. Learned Counsel further submitted that admittedly, during the investigation, the investigating officer has not seized the said torch, which was used by this witness. However, according to the version of the witness, the incident allegedly took place at 02.00 A.M. in the midnight and use of battery makes it apparent that the place of occurrence did not have any source of light to identify the person carrying out the said act. Therefore, the counsel submitted that in light of the circumstances above and in the absence of recovery of the concerned weapon of offence, the veracity of the testimony of the eye-witnesses does not remain untainted. 10.5. Therefore, the counsel submitted that in light of the circumstances above and in the absence of recovery of the concerned weapon of offence, the veracity of the testimony of the eye-witnesses does not remain untainted. 10.5. Learned Senior Counsel also submitted that this witness has further in his cross-examination specifically stated that when he reached the place of occurrence, he saw both the deceased lying on the floor and the accused ran away on seeing them implying that the initial version as well as the version in the examination-in-chief that this witness saw the accused causing injuries to the deceased is suspicious because as per his own admission when he reached the place of occurrence, the accused ran away, which also makes it plausible that this witness never saw the alleged act of assault, as he claims in his examination-in- chief. 10.6. Learned Senior Counsel also submitted that as far as evidence of PW-5 (Reshma) is concerned, it suffices to state that she is a child witness, and the evidence of a child witness must be carefully examined and materially corroborated by other circumstances before it can be relied upon. A bare perusal of PW-5's statement reveals that she cannot be considered a witness of sterling quality. Her evidence is wavering in nature, as she first claims that she is not a witness to any incident, but subsequently states that she saw the accused assaulting her mother and brother with a lathi. 10.6.1. Learned counsel further submitted that, PW-5 (Reshma) testified that upon raising alarm, Heera along with Tulsi, Badiya, Bedi, and Jeevni rushed to her house, whereupon the accused fled. However, this version is entirely at variance with the testimony given by PW-1 Heera and other prosecution witnesses. In cross-examination, PW-5 claims that she went to sleep between 8:00 and 9:00 PM and only woke up in the morning, thereby casting serious doubt on the prosecution's version that it was she who raised an alarm and summoned PW-1 to the place of occurrence. Under these circumstances, it cannot be concluded that PW-1 and PW-5 are witnesses of sterling worth, nor can their testimony be deemed creditworthy enough to base a conviction upon. 10.6.2. Under these circumstances, it cannot be concluded that PW-1 and PW-5 are witnesses of sterling worth, nor can their testimony be deemed creditworthy enough to base a conviction upon. 10.6.2. Learned counsel also submitted that this witness has been examined more than one year after the alleged occurrence and claims that she is presently also studying in the school, however, there is no material available on record to show as to who is taking care of the said witness. The possibility that the said witness has been tutored, cannot be ruled out, because admittedly after the accused has been sent to custody, all the agricultural land in possession of the accused became open for being possessed and cultivated by others and they would definitely take advantage of the current situation and tender age of this child witness to ensure that they continue to enjoy the agricultural land of the accused. 10.7. Learned counsel further submitted that as far as other eyewitnesses are concerned, admittedly their names were not mentioned in the FIR, as the persons who went along with Heera to see the accused causing the injuries. Further, PW-2 (Beda) claims that he saw the accused running away from a distance of 100 meters, he claims that he saw Heera standing near the bodies; PW-3 (Jeeva) claims that she reached the place of occurrence after Heera and this witness has categorically admitted that the deceased Iteri and the accused Rupa had a cordial marital life, however, all these witnesses in one breath claim that the accused was quarrelsome with the other neighbors and used to quarrel with them on regular basis. 10.7.1. Learned counsel also submitted that similarly, PW-4 Bedi also claims that when she reached the place of occurrence, the deceased were lying down on the floor and Jeeva and Heera were standing there, which makes all the witnesses, who are not mentioned in the FIR, at a variance with the version set out by the PW-1 and the same discredits witnesses, which is also apparent from the fact that they are all relatives of PW-1 Heera. 10.8. Learned counsel further submitted that, with regard to the medical evidence, the prosecution in this case has examined PW-14 Dr. Ravi Upadhyay and presented Ex.P.-29 (Post-mortem Report of Smt. Iteri) and Ex.P.-31 (Post-mortem Report of Dilip). 10.8. Learned counsel further submitted that, with regard to the medical evidence, the prosecution in this case has examined PW-14 Dr. Ravi Upadhyay and presented Ex.P.-29 (Post-mortem Report of Smt. Iteri) and Ex.P.-31 (Post-mortem Report of Dilip). As per the evidence of the said witness, both the deceased had only one fatal injury on head, both lacerated wounds, which were subsequently found to be the cause of death. This witness in his cross- examination has admitted that the injury which is referred to could be a result of fall as well. 10.9. Learned counsel also submitted that with regard to the evidence of recovery, the prosecution has relied upon the circumstance of recovery of weapon of offence i.e., the lathi as well as apparel of accused i.e., dhoti with an assertion that these articles were having bloodstains which on analysis were found to be of B-group, which was also the group found at the place of occurrence. Counsel also stated that it is suffice to say that the accused in this case was arrested on 17.06.2018 at about 02.37 P.M., by Ex.P.-26 and the recovery of lathi was made at 06.00 P.M. on the same day from an open place at some distance from the house of the accused. 10.9.1. Learned counsel further submitted that similarly, the dhoti was found and seized at 02:45 ?.?. subsequent to his arrest. It is humbly submitted that recovery of the lathi is absolutely suspicious in view of the fact that it is made after a lapse of two days, that too from an open place, for which, there is no explanation as to why the accused would allegedly throw the lathi at a place nearby his own house when he had already escaped from the place. 10.9.2. The recovery has been witnesses by two motbirs PW-11 and PW-12. 10.9.2. The recovery has been witnesses by two motbirs PW-11 and PW-12. PW-11 (Shankar) in his evidence claims that recovery was effected at about 10-11 A.M., three days after the incident, which makes it apparent that the recovery is nothing but a planted recovery because it has been affected on 17.06.2018 and three days had not elapsed, further as per the recovery memo (Ex.P.-22), the recovery was effected on 17.06.2018 at 06.00 P.M. whereas according to this witness, the recovery had already taken place between 10:00-11:00 A.M. This witness has further destroyed the case of the prosecution when he in his cross-examination admits that he was made to sign the memos at the police station and the articles were also sealed at the police station. 10.9.2. Learned counsel also submitted that, similarly, PW-12 Bahadur has stated in his evidence that the recovery was made at about 4:00 or 5:00 P.M. and he asserts that they signed the memos at the place of recovery and not at police station. The witness has absolutely contradicted PW-11 and therefore, both of the witnesses lose their credibility when it comes to the circumstance of recovery. 10.10. Learned counsel further submitted that the prosecution has connected the said recovery with the offence on the strength of FSL report Ex.P.-36 as per which, the dhoti and the Lathi recovered at the instance of the accused were found to be carrying stains of B-blood group. Learned counsel submitted that when viewed in light of the motbir witnesses, the recovery as well as sealing of the articles becomes highly suspicious and the possibility of tempering cannot be ruled out. This also gains importance in view of the statements of PW-15 (Mahendra Pal), Constable, who allegedly carried the articles for comparison and deposited it with the FSL. This witness claims that he was handed over the articles from malkhana at about 11.00 A.M. on 27.06.2018 and he again deposited the same in the Malkhana in the evening of 27.06.2018, because the requisite paper work in the office consumed the whole day and therefore, he took the same again in the morning of 28.06.2018 and deposited it for FSL. 10.10.1. 10.10.1. Learned counsel submitted that when the aforementioned evidence is viewed with the malkhana register produced by the prosecution (Ex.P.-27-A), would reveal that the articles were submitted on 27.06.2018 and the receipt was handed over to PW-15 (Mahendrapal), which was presented on 28.06.2018. The receipt Ex.P.-34 does not bear the seal of the FSL, which fact has also been admitted by PW-15. 10.10.2. Learned counsel further submitted that, the prosecution in this case has not examined the malkhana in-charge and the evidence of PW-15 (Mahendrapal) regarding re-deposition of articles on 27.06.2018 and re-handing over on 28.06.2018 is absolutely contradicted by Ex.P.-27-A, which bears no such entries. Therefore, it cannot be said that the prosecution has proved that it was the accused, who has committed the said murders beyond all shadow of doubt so as to warrant his conviction. 10.11. In support of the aforementioned submissions, the learned counsel for the respondent (accused) has relied upon the judgments rendered in the following cases: 1. Shahabudeen and ors. v. State of Rajasthan (D.B. Appeal No. 966/16, Para 66) 2. Trappa Siddappa Murgannavar v. State of Karnataka (Cri. Appeal 1473-74/2017, Para 23) 3. Pappu v. State of Uttar Pradesh (Cri. Appeal No. 1097-98/2018, Para 42) 11. Mr. Deepak Choudhary, learned GA cum AAG has opposed the aforesaid submissions made on behalf of the accused-appellant. 12. We have gone through the impugned judgment and order of the learned Trial Court and analysed all the evidence brought on record through the depositions by the witnesses as well as the FSL report which are on record along with other exhibits, and the case laws cited at the Bar. 13. At this stage, this Court deems it appropriate to deal with the evidence of the prosecution witnesses to the extent necessary for the present adjudication. 14. This Court observes that Heera (PW1) has very clearly in this examination-in-chief as testified that upon hearing the cries of his brother’s daughter (Reshma) he along with his daughter-in-law Jeeva, Bada and his wife Badi ran towards the place of incident, whereupon in the light of torch they saw Rupa causing injuries to his wife (Iteri) and son (Dilip) on their heads with lathi and upon seeing them all, Rupa ran away from the spot, whereafter Iteri died on the spot and Dilip died after 2 days while undergoing the treatment. This witness only got the complaint (Ex.P. 1) registered, testified the veracity of Naksha Mauka (Ex.P. 2) and also witnessed the seizure of the blood-stained clothes of both the victims and the attested the seizure memo of blouse and petticoat (Ex.P. 5) and seizure memo of pant and shirt (Ex.P. 8). He also attested the Ex.P. 6 i.e., the seizure memo and soil sample. Furthermore, no inconsistencies have been found in the aforementioned during his cross-examination so as to vitiate the testimony given during examination-in-chief. 15. This Court further observes that the testimony of PW1 is further corroborated by the testimony of PW 2 (Bada), who was said to have accompanied PW1 to the place of incident when the accused was committing the crime in question. PW 2 has testified in his examination-in-chief that he along with his wife (Badi) and Heera upon hearing the cries of Reshma, went to the place of offence and reiterated the complete story as is narrated by PW1 in his testimony. No such fact is found in the testimony of PW 2 which can shake its veracity. 16. This Court also observes that testimonies of PW 3 (Jeeva) and PW 4 (Badi) also are in tandem with and duly corroborate the story narrated by the PW 1 and PW 2. Further, there is no such fact found in their cross-examination which questions the credibility of their statements given in examination-in-chief. 17. This Court further observes that broadly the testimonies of all the aforementioned eye-witnesses are in line with each other and therefore, any minor contradictions in their statements are naturally plausible to occur over a period of time and thus, are insufficient to disbelieve their testimonies. 18. This Court also observes that, as far as testimony of PW-5, Reshma is concerned, it has been contended by the learned counsel on behalf of the accused that she is child witness and her statement has been recorded after a gap of one year and therefore should be considered with caution. However, it is noteworthy that, even though she is a child, her statement was recorded only after subjecting her to the questions testing her ability to understand the questions posed to her and her ability to answer those questions using her intellect. 18.1. However, it is noteworthy that, even though she is a child, her statement was recorded only after subjecting her to the questions testing her ability to understand the questions posed to her and her ability to answer those questions using her intellect. 18.1. Reshma in her testimony clearly stated that she saw her father hitting her mother and brother with lathi, whereafter she started screaming and upon hearing her screams Heera along with Tulsi, Badiya, Bedi, and Jeevni rushed to her house, whereupon the accused fled. 19. This Court further observes that, in a similar manner PW-6 (Tulsiram) has also supported the testimony of other witnesses. He states to have heard the screams of Reshma and to have run towards the place of incident. He also states that to have seen the victims lying on the ground and blood coming out of their heads. He further supports rest of the prosecution story as is narrated by the other witnesses. Even if this court considers that contention of the learned counsel on behalf of the accused that this witness was not present exactly at the time when the incident took place and he was present only after the offense in question was committed, then also the facts narrated by him which are said to have occurred before and after the commission of the main act constituting offense is also relevant under the Section 6, Indian Evidence Act as forming part of the same transaction. 20. This Court also observes that, similarly PW-8 (Prabhulal) also in his testimony has testified that he was present at the spot of crime after the accused fled away from the place and saw the victims lying on the floor, which again becomes relevant as forming part of same transaction under Section 6, Indian Evidence Act. 21. This court further observes that PW-7 (Nagla) and PW-10 (Rakulal) testifies to have attested the Ex.P.-2 (Naksha Mauka) and Ex.P. 5 and 6 (Seizure Memo of the blood stained clothes of the victims and the soil sample) 22. This Court also observes that as far as the recovery of the weapon of offense is concerned, the prosecution has produced two witnesses from its side in his regard i.e., PW-11 (Shankar) and PW-12 (Bahadur). This Court also observes that as far as the recovery of the weapon of offense is concerned, the prosecution has produced two witnesses from its side in his regard i.e., PW-11 (Shankar) and PW-12 (Bahadur). Both these prosecution witnesses testified in their examination-in-chief to have witnessed the recovery of lathi in between stones on one ‘Matasulla Hill’ upon information given by the accused. They have also attested the recovery memo (Ex.P.-22) and have testified the presence of blood on the lathi. They also state to have witnessed the preparation of Ex.P.-23 (Naksha Mauka) in their presence and to have attested both the memos. 22.1 This Court also observes that even though the aforementioned witnesses state to have witnessed recovery of the weapon of offence from an open place; they also in their cross-examination deny the fact that the place from where the said lathi was recovered had similar lathis over there. Further, no such fact has been brought to the light which can discredit the veracity of these witnesses. 23. This Court further observes that PW-13 (Basulal) testifies the deposition of 7 seized articles by the investigating officer in the Malkhana and thereafter giving the same to PW-15 (Mahendra Pal) for their deposition in the FSL Branch, Udaipur and thereafter presented its receipt on 28.06.2018. The aforementioned is corroborated by Ex.P. 27A (Copy of Malkhana Register) and the statements of PW-15, wherein he has also referred to Ex.P. 32 (Forwarding Letter of his thana) and Ex.P. 33 (Forwarding Letter from the Superintendent of Police) to show that the seized items were in same condition from malkhana to FSL, Udaipur. Therefore, the factum of investigating officer sealing and depositing the seized items in the malkhana and thereafter, safely depositing it in the FSL, Udaipur is duly proved. 24. This Court also observes that PW-14 (Dr. Ravi Upadhyay) was produced before the learned trial court as an expert witness by the prosecution to show that the death of the victims was caused due to injuries in their head, which is ante-mortem in nature. His signatures have also been shown to have been present on the Post-mortem report (Ex.P. 29) and Ex.P. 31, in order to prove their genuineness. 25. This Court further observes that the investigating officer while duly certifying the whole of the investigation has proved all the discoveries and seizures. His signatures have also been shown to have been present on the Post-mortem report (Ex.P. 29) and Ex.P. 31, in order to prove their genuineness. 25. This Court further observes that the investigating officer while duly certifying the whole of the investigation has proved all the discoveries and seizures. On the point of recovery, the investigating officer even though as agreed to the factum of discovery being made from an open space, has also clarified in his testimony that the said weapon was recovered underneath the stones, on the basis of the information provided by the accused. The information vis-a-vis the presence of the weapon of offence is specific and exclusive to the knowledge of the accused; further no such information has been found during the cross-examination of investigating officer i.e., PW-17 (Sajjan Singh) which could render the investigation so done unreliable. 26. This Court also observes that, it is noteworthy that the accused admits to have committed the act of hitting his wife and son their heads; however, he takes the defense of unsoundness of mind at the time of committing the crime in question. 27. This Court therefore observes that upon the basis of the aforementioned analysis and appreciation of oral and documentary evidence available on record, it is duly proved that the prosecution has proved its case beyond reasonable doubts, that at around 2:00 am in the night of 15-06-2018, the accused assaulted his wife and son with lathi, with an intention of causing their death. In such a situation, the burden lies upon the accused-appellant to prove unsoundness of mind in order to bring his case within the purview of general exceptions under IPC. 28. This Court further observes that, on the point of the defense regarding unsoundness of mind, learned counsel on behalf of the accused contended that the accused was unsound at the time of commission of offence and therefore was incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. However, the medical examination of the accused available on record and reproduced below shows that the he was not suffering from mental condition and therefore could not be termed as one having unsound mind: “Mental Status Examination:- On mental status examination he is conscious, cooperative and oriented to time, place and person. He is fairly ciad and kempt. However, the medical examination of the accused available on record and reproduced below shows that the he was not suffering from mental condition and therefore could not be termed as one having unsound mind: “Mental Status Examination:- On mental status examination he is conscious, cooperative and oriented to time, place and person. He is fairly ciad and kempt. Eye to eye contact present. Psychomotor activity with normal limits. Speech and language relevant with normal tone, volume and pressure. Reaction time is normal. Mood/affect euthymic. No abnormalities found in though and perception. Higher mental function is intact. No active psychopathology found at present. Conclusion: On the basis of the detailed behavioural observation, Mental Status and physical examination, members of medical board are of opinion that patient rupa is not suffering from any psychiatric illness at present.” 28.1. The aforementioned point regarding the absence of unsoundness of mind is also supported by the fact that the none of the witnesses in their statements mentioned about the unsoundness of the accused; at the most PW-2 and PW-3 among others made statements in their cross-examination regarding the fact of the accused entering into altercations with the other villagers and picking up fights with others due to his habit of alcoholism. But the same does not go on to prove the accused’s unsoundness of mind. 29. This Court therefore observes that the accused has failed to discharge his burden udner Section 105, Indian Evidence Act, 1872 to prove unsoundness of mind and thereby is not entitled to defense under Section 84 of the Indian Penal Code, 1860 and the prosecution has been able to prove the case against him beyond all reasonable doubts. 30. This Court, in light of the aforementioned factual matrix, witnesses produced, the documentary evidences adduced and the cases cited, finds that the prosecution in the instant case has been successful in proving the case against the accused (Rupa) beyond all reasonable doubts and therefore the learned trial court has rightly convicted him under Section 302 of the IPC. 31. Once this Court has arrived at a conclusion that the impugned judgment of conviction does not suffer from any infirmity and the appellant’s crime has been demonstrated by the prosecution with the help of the aforestated evidence no case for making any interference in the impugned judgment of conviction is made out. 32. 31. Once this Court has arrived at a conclusion that the impugned judgment of conviction does not suffer from any infirmity and the appellant’s crime has been demonstrated by the prosecution with the help of the aforestated evidence no case for making any interference in the impugned judgment of conviction is made out. 32. The second issue which now requires consideration of this Court is regarding the sentence and this Court is conscious of the fact that learned Senior Counsel for the appellant submitted that the capital sentence would require this Court to apply the test of rarest of rare cases, and also this Court shall have to look at the gravity and the mitigating circumstances which are applicable in the present case. 32.1. Learned counsel for the appellant submitted that the learned trial court, while considering the sentence, has held that upon weighing the aggravating and mitigating circumstances in the case at hand, the scales tip towards aggravating circumstances and only when the aggravating circumstances outweigh the mitigating circumstances, the appropriate sentence is a capital punishment. He submitted that the mitigating circumstances as delineated by Hon'ble Apex Court in the case of Ram Naresh & Ors. Vs. Chattisgarh, AIR 2012 SC 1357 , specifically provide for the mitigating circumstances which should be given weightage while considering the awarding of sentence. One of the circumstance, which should be considered and weighed as a mitigating circumstance are those conditions or circumstances in which, the said offence has been committed or in other words, whether at the time of commission of the said offence, the accused was either mentally or emotionally disturbed or was under provocation. Similarly, one of the circumstances is where the sole eyewitness was not creditworthy. In the case at hand, the accused was admittedly not having any criminal antecedent nor was he having any psychological tendencies, which would have made it apparent that the said accused would be a threat to society at large. 32.2. Learned counsel further submitted that, admittedly the accused was a family man, who was taking care of his family, which is apparent that he had a son 12 years of age, a daughter 8 years of age, and admittedly the accused never assaulted the said daughter nor was any evidence that he was regularly assaulting his wife. 32.2. Learned counsel further submitted that, admittedly the accused was a family man, who was taking care of his family, which is apparent that he had a son 12 years of age, a daughter 8 years of age, and admittedly the accused never assaulted the said daughter nor was any evidence that he was regularly assaulting his wife. Under such circumstances, considering these mitigating factors- particularly the absence of any acts that could be characterized as cruel or inhuman, so as to warrant the awarding of capital punishment, the said order of sentence is not sustainable. Though it is true that the allegation is of causing death of wife and son, however, the time of the occurrence, mitigating circumstances and the fact that only one injury was to each, makes it apparent that the case at hand does not fall in the category of rarest and rare cases, so as to justify awarding of capital punishment and therefore, the order of learned trial court deserves to be appropriately modified. 32.3. While taking into consideration the perspectives raised, this Court finds that the gravity of the circumstances including the gruesomeness and heinousness of the crime and condition in which it was committed are of extreme nature and do not call for any leniency. 32.4. This Court also observes that the principle of death penalty has been dealt with in various cases by the Hon’ble Apex Court from time to time and the principle was laid down to the effect of “Aggravating circumstances — (Crime test) and Mitigating circumstances — (Criminal test)”, to ascertain whether the case falls under the rarest of rare case or not. A proper evaluation was laid down by the Hon’ble Apex Court in a recent case of Manoj Pratap Singh Vs State of Rajasthan (Special Leave Petition (CRL.) Nos. 7899-7900/2015), decided on 24.06.2022), relevant portion of the said judgment is reproduced as hereunder:- “Death sentence: Evolution of principles and norms ..... 44. We may now usefully summarise the salient features of evolution of legal principles and norms for dealing with the question of sentencing in such matters where the sentence of death could also be awarded, particularly with reference to the leading cases and expositions therein. 44.1. 44. We may now usefully summarise the salient features of evolution of legal principles and norms for dealing with the question of sentencing in such matters where the sentence of death could also be awarded, particularly with reference to the leading cases and expositions therein. 44.1. In the case of Jagmohan Singh v. The State of U.P.: (1973) 1 SCC 20 , the questions in their broader spectrum were raised about the constitutional impermissibility of death sentence with the submissions: (i) that the death sentence was unreasonable for it would put an end to all the rights guaranteed under clauses (a) to (g) of Article 19(1) of the Constitution of India; (ii) that the discretion vested in the Judges to impose capital punishment was not based on any standards or policy and hence, the provision suffered from the vice of excessive delegation of legislative function; (iii) that the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution of India; and (iv) that under Article 21 of the Constitution, no person shall be deprived of his life except according to the procedure established by law but, the provisions of law did not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital punishment and imprisonment for life. 44.2. Two major factors/events after the decision in Jagmohan (supra) led to another reference to the Constitution Bench of this Court in regard to the constitutional validity of death penalty for the offence of murder as also of the sentencing procedure. One had been the amendment of the law relating to criminal procedure with advent of the Code of the Criminal Procedure, 1973 in replacement of the old Code of 1898, which introduced, as regards sentencing procedure, the above-quoted subsection (2) of Section 235 and sub-section (3) of Section 354. Several persons convicted of murder and sentenced to death filed the petitions under Article 32 of the Constitution of India challenging the constitutional validity of death penalty provided in Section 302 IPC for the offence of murder and that of the sentencing procedure provided in sub-section (3) of Section 354 CrPC. Several persons convicted of murder and sentenced to death filed the petitions under Article 32 of the Constitution of India challenging the constitutional validity of death penalty provided in Section 302 IPC for the offence of murder and that of the sentencing procedure provided in sub-section (3) of Section 354 CrPC. The other one had been the majority opinion of a 3 Judge Bench of this Court in the case of Rajendra Prasad v. State of Uttar Pradesh: (1979) 3 SCC 646 , purportedly seeking to whittle down the ratio of Jagmohan (supra); and correctness of such an opinion having been doubted by another Bench of this Court. The reference so made to the Constitution Bench came to be answered in locus classicus Bachan Singh (1980) 2 SCC 684 with its ‘rarest of rare’ doctrine. The opinion of majority in Bachan Singh is the guiding light and foundational discipline for all the later developments and enunciations on the subject. ..... 44.3. In Bachan Singh (supra), the Constitution Bench of this Court examined two major questions, i.e., as to whether death penalty provided for the offence of murder under Section 302 IPC was unconstitutional; and if not, as to whether the sentencing procedure in Section 354(3) CrPC was unconstitutional on the ground that it invested the Court with unguided and untrammelled discretion. 44.3.1. After having examined a variety of features and factors pertaining to Articles 19(1) and 21 of the Constitution of India, the Court (per majority of the Constitution Bench) answered the first question in the negative, while observing and pointing out, inter alia, as under: - “132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware — as we shall presently show they were — of the existence of death penalty as punishment for murder, under the Penal Code, 1860, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for presentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19. .... ... 44.4. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19. .... ... 44.4. In fact, Bachan Singh (supra) judgment has been succinctly summarised and its principles explained by another Constitution Bench of this Court in the case of Mithu v. State of Punjab: (1983) 2 SCC 277 while dealing with the question of constitutional validity of Section 303 IPC, which provided for death sentence as the mandatory punishment for a person who, being under sentence of imprisonment for life, would commit murder. In the course of declaring the said provision contained in Section 303 IPC constitutionally invalid, the Constitution Bench dealt with a large number of arguments; and one of them had been that the validity of death sentence had already been upheld in Bachan Singh (supra) and, therefore, such questions should not be allowed to raise their head over again. While pointing out the fallacy of this argument, the Constitution Bench explained as to what exactly had been the ratio of Bachan Singh in the following words: - “7.….The majority did not lay down any abstract proposition in Bachan Singh that "death sentence is Constitutional", that is to say, that "It is permissible under the Constitution to provide for the sentence of death". To be exact, the question which arose for the consideration of the Court was not whether, under the Constitution, it is permissible to provide for the sentence of death. The precise question which arose in that case was whether Section 302 of the Penal Code which provides for the sentence of death as one of the two alternative sentences is valid. It may be recalled that Section 302 provides for the sentence of death as an alternative sentence which may be imposed. The normal sentence for murder is life imprisonment; and if the death sentence has to be imposed, the Court is under a legal obligation under Section 354(3) of the Criminal Procedure Code to state the special reasons for imposing that sentence. That explains why, in Bachan Singh, Sarkaria J., who spoke for the majority, underscored the words "alternative" and "may" in paragraph 19 of the judgment, whilst observing that prescribes death as an alternative punishment to which the offender may be sentenced in cases relating to seven kinds of offences. That explains why, in Bachan Singh, Sarkaria J., who spoke for the majority, underscored the words "alternative" and "may" in paragraph 19 of the judgment, whilst observing that prescribes death as an alternative punishment to which the offender may be sentenced in cases relating to seven kinds of offences. The majority concluded that of the Penal Code is valid for three main reasons: Firstly, that the death sentence provided for by Section 302 is an alternative to the sentence of life imprisonment, secondly, that special reasons have to be stated if the normal rule is departed from and the death sentence has to be imposed; and, thirdly, because the accused is entitled, under Section 235(2) of the Code of Criminal Procedure, to be heard on the question of sentence. The last of these three reasons becomes relevant, only because of the first of these reasons...... 44.5. Thereafter, in Machhi Singh (supra), a 3-Judge Bench of this Court, while considering a case where the appellant was convicted of orchestrating and executing a conspiracy, which resulted in the murder of as many as 17 people due to a family feud, explained the philosophy pertaining to the death sentence in the following words: - “32. …Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime.…” (emphasis supplied) 44.5.1. The Court also explained the relevant propositions of Bachan Singh (supra) and the pertinent queries for applying those propositions in the following terms: - “38. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime.…” (emphasis supplied) 44.5.1. The Court also explained the relevant propositions of Bachan Singh (supra) and the pertinent queries for applying those propositions in the following terms: - “38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan 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. 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. 39. In order to apply these guidelines inter alia the following questions may be asked and answered: (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? 40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.” (emphasis supplied) 44.6. 40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.” (emphasis supplied) 44.6. Another relevant decision to be noticed is that in the case of Swamy Shraddananda (2) v. State of Karnataka: (2008) 13 SCC 767 . The said decision was rendered by a 3- Judge Bench of this Court in the backdrop that though a 2-Judge Bench of this Court upheld the conviction of the appellant of offences under Sections 302 and 201 IPC but, one of the learned Judges felt that in the facts and circumstances of the case, punishment of imprisonment till the end of the natural life of the convict would serve the ends of justice, whereas the other learned Judge was of the view that the appellant was liable to the punishment of death. In keeping with the ever-progressing canons of penology, the 3-Judge Bench carved out a different course, being of not awarding death penalty but, of conditioning the sentence of imprisonment for life with a rider that the convict shall not be released from the prison for the rest of his life. The Court explained the logic of such sentencing, which overrides the availability of remission, in the following terms: - “92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all. 93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.” (emphasis supplied) 44.7. We need not elongate this discussion by assembling various other decisions rendered in variegated circumstances and factual matrices but deem it appropriate to refer to the decision in the case of Shankar Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546 , wherein this Court surveyed a large number of cases on either side that is, where death sentence was upheld/ awarded or where it was commuted; and pointed out the requirement of applying ‘crime test’, ‘criminal test’ and ‘rarest of rare test’. This Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows: - 49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. This Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows: - 49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. 47-48, para 33) “Aggravating circumstances — (Crime test) (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 51 of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating circumstances — (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.” This Court further said: - “52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society-centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.” (emphasis and extra emphasis supplied)” 32.5. This Court further observes that after evolution of the death penalty (capital punishment), there are two relevant factors, namely, Aggravating Circumstances — (Crime test) and Mitigating Circumstances — (Criminal test). The Aggravating Circumstances (Crime Test) is for awarding the death penalty, wherein the parameters to ascertain that the case is falling under the rarest of rare category are laid down. As regards the present case, the same leaves no room for doubt and this Court is satisfied that the case is not falling under the rarest of rare category and comes under the Mitigating Circumstances — (Criminal test). As regards the present case, the same leaves no room for doubt and this Court is satisfied that the case is not falling under the rarest of rare category and comes under the Mitigating Circumstances — (Criminal test). This Court further observes that the Mitigating Circumstances — (Criminal test) basically comes into play where there is a doubt and this Court is satisfied to avoid the death sentence (Capital Punishment) in the present case, as it was stated by the Hon’ble Apex Court, in a catena of judgments from time to time “To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused”.” 33. The Court has to respond to the cry of justice, against the accused, of the complainant family on one hand, and the society on the other hand while imposing the punishment befitting to the crime, but at the same time, has to balance the parameters of rarest of rare cases for awarding the capital punishment. 34. This Court also observes that as per the above-quoted Aggravating Circumstances — (Crime test) and Mitigating Circumstances — (Criminal test), as well as the possibility of reformation, family background of the accused, the manner in which he has lived with his family amicably, without any substantial evidence vis-a-vis any altercation or dispute between him and his wife, the accused not being a menace to the society, no previous criminal record, the award of capital punishment to the accused-appellant can be avoided as his case is considered under the Mitigation Circumstance (Criminal Test) for his re-integration in the society, after serving his sentence, as has been held by the Hon’ble Apex Court in the case of the State of Haryana Vs Anand Kindo & Anr. (Criminal Appeal Nos. 1797-1798/2010 along with other connected matters, decided on 08.09.2022)’ the relevant portion of the said judgment is reproduced as hereunder: - “12. On consideration of the matter, we consider appropriate to impose a fixed term sentence of 30 years. Even at that age, the convicts would be in their 50s and we hope and pray that they would have learned their lesson and joined the society as responsible members at that stage. 13. On consideration of the matter, we consider appropriate to impose a fixed term sentence of 30 years. Even at that age, the convicts would be in their 50s and we hope and pray that they would have learned their lesson and joined the society as responsible members at that stage. 13. In Shankar Kishanrao khade vs. State of Mahrashtra (2013) 5 SCC 546 , it was held that if there is any circumstance favouring the accused such as lack of intention to commit the crime, possibility of reformation, young age of the accused, accused not being a menance to the society, no previous criminal record etc., the accused may avoid capital punishment. The Court opined that the crime is important but so is the criminal and hence the Supreme Court in recent past has substituted death penalty with fixed term sentences exceeding 14 years. In appropriate cases such as the present case, imposing a fixed term sentence creates a possibility for the convict to re-integrate into society after serving his/her sentence. It strikes a delicate balance between the victims’ plea for justice and rehabilitative justice for the convicts.” 34.1. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered in Kashi Nath Singh alias Kallu Singh Vs. State of Jharkhand, (2023) 7 SCC 317 as hereunder: “6. The argument raised by the learned counsel for the appellant was that there is no reasoning given by the High Court that there are no chances of his reformation. As there is no criminal history of the appellant, there are chances of his reformation. Therefore, this Court may modify the sentence awarded to the appellant while granting him benefit of remission, to whatever he is entitled to. He has further submitted that if the benefit of remission cannot be granted, the sentence awarded to the appellant may be reduced to certain limited period instead of whole of his biological life. Reference was made to the decision of this Court in Shiva Kumar alias Shivamurthy v. State of Karnataka (2023) 9 SCC 817 . 7. On the other hand, learned counsel for the respondent submitted that it is a case of brutal rape and murder of a 14 year old girl. The appellant, after committing the rape, was in the process of killing her by hitting her head and body with stone. 7. On the other hand, learned counsel for the respondent submitted that it is a case of brutal rape and murder of a 14 year old girl. The appellant, after committing the rape, was in the process of killing her by hitting her head and body with stone. He was trying to deface her face so that she could not be recognised. He was seen doing so by family members of the deceased when they went out for search. Keeping in view the mindset of the appellant, he does not deserve any further leniency in sentencing as the High Court had already commuted the death sentence to life imprisonment. 10. Though notice was issued only to consider whether the appellant could be extended the benefit of remission, however, considering the severity of the offence committed by the appellant, we do not find any merit in that submission. However, still considering the fact that the appellant was 26 years of age when the offence was committed and there may be chances of his reformation, but still undue leniency in sentencing shakes public confidence in the criminal justice system, the deterrent effect may not be there. The rights of the victim and his family members are also to be considered. 11. Keeping in view the totality of circumstances, the sentence of life imprisonment for the whole of the biological life of the appellant, without any benefit of remission deserves to be modified to the fixed term sentence for a period of 30 years without any benefit of remission so that prime period of his life is spent in jail. The appellant shall be released from jail only after undergoing full sentence of 30 years, excluding the period of imprisonment already undergone." 34.2. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of Navas @ Mulanavas Vs. State of Kerala (Criminal Appeal No.1215/2011, decided on 18.03.2024), as hereunder: “57. A journey through the cases set out hereinabove shows that the fundamental underpinning is the principle of proportionality. The aggravating and mitigating circumstances which the Court considers while deciding commutation of penalty from death to life imprisonment, have a large bearing in deciding the number of years of compulsory imprisonment without remission, too. A journey through the cases set out hereinabove shows that the fundamental underpinning is the principle of proportionality. The aggravating and mitigating circumstances which the Court considers while deciding commutation of penalty from death to life imprisonment, have a large bearing in deciding the number of years of compulsory imprisonment without remission, too. As a judicially trained mind pores and ponders over the aggravating and mitigating circumstances and in cases where they decide to commute the death penalty they would by then have a reasonable idea as to what would be the appropriate period of sentence to be imposed under the Swamy Shraddananda (supra) principle too. Matters are not cut and dried and nicely weighed here to formulate a uniform principle. That is where the experience of the judicially trained mind comes in as pointed out in V. Sriharan (supra). Illustratively in the process of arriving at the number of years as the most appropriate for the case at hand, which the convict will have to undergo before which the remission powers could be invoked, some of the relevant factors that the courts bear in mind are:- (a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3) the convict not being a professional killer; (4) the socioeconomic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse. These were some of the relevant factors that were kept in mind in the cases noticed above while weighing the pros and cons of the matter. These were some of the relevant factors that were kept in mind in the cases noticed above while weighing the pros and cons of the matter. The Court would be additionally justified in considering the conduct of the convict in jail; and the period already undergone to arrive at the number of years which the Court feels the convict should, serve as part of the sentence of life imprisonment and before which he cannot apply for remission. These are not meant to be exhaustive but illustrative and each case would depend on the facts and circumstances therein. Conclusion: 60. For the reasons stated above, we uphold the judgment of the High Court insofar as the conviction of the appellant under Sections 302, 449 and 309 IPC is concerned. We also do not interfere with the sentence imposed on the accused for the offence under Section 449 and Section 309 of IPC. We hold that the High Court was justified on the facts of the case in following Swamy Shraddananda (supra) principle while imposing sentence for the offence under Section 302 IPC. However, in view of the discussion made above, we are inclined to modify the sentence under Section 302 imposed by the High Court from a period of 30 years imprisonment without remission to that of a period of 25 years imprisonment without remission, including the period already undergone. In our view, this would serve the ends of justice.” 35. This Court while applying the above test finds that the present accused-appellant is not having any criminal antecedent nor is he having any psychological tendencies, which would make it apparent that the said accused would be a threat to society at large. The accused was a family man, who was taking care of his family, which is apparent that he had a son 12 years of age, a daughter 8 years of age, and admittedly the accused never assaulted the said daughter nor was any evidence that he was regularly assaulting his wife. Further, considering the mitigating factors viz., particularly the absence of any acts that could be characterized as cruel or inhuman, so as to warrant the awarding of capital punishment, the said order of sentence is not sustainable. Further, considering the mitigating factors viz., particularly the absence of any acts that could be characterized as cruel or inhuman, so as to warrant the awarding of capital punishment, the said order of sentence is not sustainable. Though it is true that the allegation is of causing death of wife and son, however, the time of the occurrence, mitigating circumstances and the fact that only one injury was to each caused, makes it apparent that the case at hand does not fall in the category of rarest and rare cases, so as to justify awarding of capital punishment. This Court also finds that the mitigating factors which have been settled in the precedent law settled by the Hon’ble Apex Court and also the Hon’ble Apex Court’s pronouncements making it clear that merely because a crime is heinous, it cannot become a sole ground for awarding capital punishment to the perpetrator without weighing the other factors. 36. This Court, while weighing the different parameters which has been observed as above, as well as the precedent laws cited above, is of the view that the fixed term of twenty years will serve the purpose of justice in the present case. 37. Thus, in view of the above the above-numbered murder reference for confirmation of death sentence is answered in negative. The appeal preferred by the accused-appellant to assail the impugned judgment is partly allowed. His conviction as recorded by the learned Trial Court for the offences mentioned above is affirmed. For the offence under Section 302 IPC, the death sentence awarded to the accused-appellant is commuted to 20 years imprisonment, without any possibility of parole or premature release. The above-numbed Murder Reference is disposed of accordingly. The record be returned to the learned Trial Court forthwith. 38. This Court is thankful to Mr. Vineet Jain, learned Senior Counsel assisted by Mr. Kuldeep Sharma, Pro-Bono Counsel for the assistance so provided by appearing for the accused-appellant, who have not only provided precedent laws and have taken this Court to each and every prosecution witness but also the exhibits to demonstrate the criminal jurisprudence applicable in the present case.