Lala Ram vs State of Rajasthan

A.M. Kapadia, J.—D.B. Criminal Murder Reference No. 2 of 2007 pursuant to submission of the proceedings made u/s 366(1) of the Code of Criminal Procedure (''the Code'' for short) alongwith two companion appeals being DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 filed u/s 374(2) of the Code; one through authority and another through Advocate by appellant Lalaram (''Al'' for short) arise out of judgment and order dated 07.09.2007 rendered in Sessions Case No. 56 of 2006 by the learned Additional Sessions Judge (Fast Track) No. 21, Pali, by which Al is convicted for offence of murder of five persons u/s 302 of the Indian Penal Code (''IPC for short) as well as u/s 201 and 380 IPC and sentenced to death and fine of Rs. 100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence u/s 302 IPC with a direction that Al should be hanged by neck till his death subject to confirmation by this Court; rigorous imprisonment for 7 years and fine of Rs. 100 in default of payment of fine further undergo rigorous imprisonment for one year for the offence u/s 201 IPC, and rigorous imprisonment for 7 years and fine of Rs. 100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence u/s 380 IPC, further directing that all the sentences were ordered to run concurrently. S.B. Criminal Appeal No. 772 of 2007 has been filed u/s 374(2) of the Code against the same judgment and order by appellant No. 1 Bhana Ram and appellant No. 2 Budha Ram (A2 & A3 for short), who have been convicted for the offence u/s 411 IPC and both of them have been sentenced to simple imprisonment for three years and fine of Rs. 500, in default of payment of fine further undergo rigorous imprisonment for six months for the said offence.

As the Criminal Murder Reference No. 2 of 2007, the two companion appeals DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 as well as SB Criminal Appeal No. 772 of 2007 arise out of the same judgment and order, this court, proposes to hear the reference for confirmation of sentence of death and the appeals preferred by all the accused together and to deal with the merit of the case against the accused in light of all the material questions of law as well as facts, and to adjudicate upon the guilt of the accused and appropriateness of sentence of death awarded to Al as well as three years simple imprisonment awarded to A2 and A3 by this common judgment.

The facts emerging from the record of the case, more particularly, as disclosed in FIR and unfolded during trial are as under:

3.1 PW3 Mangu Khan Khokhar, Assistant Sub-Inspector, SHO Rohit, made a report stating therein inter alia that on 13.08.2006 at 7.00 P.M. one Dalpat Singh PW1 informed him telephonically about one dead body floating in the Bhanwari Gavai pond (talab) of village Rohat and on receiving the said telephonic massage,, he reached at Bhankari Talab and found a the dead body floating with mattresses and blanket. He, therefore, with the help of Dalla Ram and Bhima Ram got the dead body brought out of water, whose both the legs were tightened by rope and he was wearing Bushirt with strips on it, Sando Baniyan and Black pant. The clothes were stained with blood and the deceased was wearing ''Madaliya'' in neck, earrings, five rings in fingers and from the pocket of his pant in a plastic bag Rs. 2300 along with identity cards of Bhimnath and his wife on which address of Pali was mentioned, visiting cards of an Advocate and others, and four slips of one mobile number etc. were found. There were injuries on his neck, mouth etc. The message was sent to SHO Kotwali Pali at 9.30 A.M. and then he himself reached at Bangur Hospital, Pali at 12.30 carrying with him dead body where he received message on wireless from the SHO, Pali that the house of Bhimnath was found at Plot No. 23-24, Shastri Nagar, Karnal Colony, Pali and blood was seen in the courtyard of house. Then he making necessary arrangement at the hospital alongwith others reached at the house of Bhimnath and on checking found body of Bhanwarial at the staircase. On breaking the lock of right side first room, dead bodies of Smt. Chhoti Devi, her sons Kalu and Shiva with injuries on their persons found which were got photographed. At the spot one tractor and a motorcycle were found missing. It was suspected that some unknown person has murdered all the five and to temper with the evidence the dead body of Bhimnath was thrown in Bhakari Gavai Talab.

3.2. On this report CRNo.357 of 2006 was registered at police station Kotwali, Pali for commission of offence u/s 302,201,380/404 IPC and investigation commenced.

3.3. During the course of investigation, inquest on all the five dead bodies was held in presence of panchas and thereafter bodies were sent for autopsy. Muddamal motorcycle, tractor, kulhari, pant, shirt, key and other articles recovered were sent to FSL for chemical analysis. Statements of panch witness as well as other witnesses were recorded and A1 was arrested on 14.08.2006 vide Ex.P92. During the course of further investigation, it was divulged that A1 gave Kandora to Bhana Ram (A2) and Tanka and Nakaliya to Bhudha Ram (A3) which belonged to Chhota Devi, therefore, both the accused A2 & A3 were arrested on 20.08.2000 vide Ex.P58 and P57 respectively and on the information supplied by them those articles were recovered from them. Those articles were identified by PW33 Smt. Kamla Devi, cousin sister of deceased Bhimnath, therefore, both accused were also booked for the offence u/s 411 IPC.

3.4. On completion at the investigation, as sufficient incriminating evidence was found against Al for committing murder of five persons, screening the offence as well theft for the offence of receiving stolen property knowing it to be stolen, punishable u/s 411 IPC, they were charge-sheeted in the court of learned CJM, Pali.

3.5. As the offence punishable u/s 302 of the IPC is exclusively triable by a Court of Sessions, the learned CJM, Pali committed the case to the Court of Sessions, Pali.

3.6. The learned Additional Sessions Judge (Fast Track) No. 21 Pali (''trial Court'' for short), to whom the case was made over for trial, framed charge against Al for commission of the offences punishable u/s 302, 201 and 380/404 IPC and against accused A2 & A3 for the offence punishable u/s 411 IPC and charges were read over and explained to be tried, they were put to trial and tried by the learned Additional Judge (Fast Track) No. 2, Pali.

3.7. In order to bring home the charge levelled against the accused, the prosecution examined as many as 39 witnesses and rolled upon their oral testimony, they are as under:

(1) PW1, Dalpat Singh - Informant, panch witness of the place of incident.

(2) PW2, Sher Singh - Panch witness of the place of incident and recovery

(3) PW3. Mangu Khan - Scribe of FIR.

(4) PW4, Sukhiya - Deceased''s neighbours

(5) PW5, Chunni Lal - Neighbor, panch witness. (8) PW6. Nana Ram - Petrol pump employee.

(7) PW7, Ramesh - Owner of grocery shop.

(8) P W8, Sanwal Ram - Panch witness of tractor recovery.

(9) PW9, Chunni Lai - Panch witness of seizure of motorcycle.

(10) PW10, Daya Ram - Saw the accused at petrol pump.

(11) PW11, Bhaga Ram - Witnessed accused coming to repair shop for getting the motorcycle repaired.

(12) PW12,Jabbar Singh - Panch witness of seizure of tractor.

(13) PW 13, Sukhnath - Panch witness of the dead body.

(14) PW14, Prahlad Sharma - Sales Manager, TATA India.

(15) PW15, Bhanwaroo Khan (Constable) - Panch witness of arrest.

(16) P W16, Peera Ram - Panch witness of the seizure of the kulhari, mobile etc,

(17) PW17, Bakal Das-Pujari.

(18) PW18, Amreak Singh - Mechanic doing work of scooter and motorcycle repairing

(19) PW19. Parvat Singh - Panch witness of lock and key.

(20) PW20, Vela Ram - Panch witness of the spot of dead body of deceased Bhimnath.

(21) P W21, Babulal witness in respect of accused asking for mortgaging ornament.

(22) PW22, Dr. G.N. Arora- Medical jurist.

(23) PW23, Ashok Kumar - Seller of motorcycle

(24) PW24, Dr. H.C. Jain - Medical Jurist.

(25) PW25, Uda Ram - Seller of mobile to Bhimnath

(26) PW26, Karan Pal Singh - Constable photographer

(27) PW27, Rajesh - Constable Photographer,

(28) PW28, Puka Ram - Constable who brought article to FSL Jodhpur.

(29) PW29, Yogendra Singh - Sand Contractor.

(30) PW30, Sajjan Singh - Incharge Malkhana.

(31) PW31, Kishan Lai HLC, S.P. Office

(32) PW32, Shanti - Sister of Bhimnath.

(33) PW 33, Kamla Devi - Cousin sister of Bhimnath.

(34) PW34, Sanwar Mai Bairwa - Talking with deceased Bhimnath on his mobile phone.

(35) PW35, Pita Ram Parihar - Advocates

(36) PW36, Mohan Singh - Incharge Police Station Kotwali, Pali.

(37) PW37, Alka Gupta - Magistrate

(38) PW38,Sanjay Gupta-Dy. S.P.

(39) PW39, Kushal Singh - Dy. S.P.

3.8. To prove the culpability of the accused, the prosecution has also produced number of documents, like First Information Report, autopsy reports of five dead bodies, FSL Report, panchnama of recovery, discovery as well as scene of offence, and relied upon the contents of the same.

3.9. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required u/s 313 of the Code. In their further statements the accused denied the case of the prosecution by saying that they were falsely implicated in the case. However, they did not lead any evidence nor did they examine any witness in support of their defence.

3.10. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial Court held that deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal died a homicidal death on receiving injuries inflicted by axe (kulhari). Trial Court also held that on the basis of circumstantial evidence pitted by the prosecution, the prosecution has proved the complicity of A1 for committing murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal. The trial Court has enumerated various circumstances appearing against the accused to prove his complicity in the murder of five persons. Trial Court has also held that the accused has caused disappearance of the evidence after committing the offence as well as committed theft of ornaments. In view of the above referred to conclusions, the trial Court held that the charge levelled against the Al for commission of offence u/s 302,201 and 380 IPC were fully established and as a result thereof the accused was to held liable for those offences.

3.11. The trial Court thereafter heard A1 on the question of sentence. According to the trial Court, the accused had committed brutal and diabolic murder of five persons and as he had committed heinous, gruesome and diabolic multiple murders in a shocking manner, awarding of extreme penalty of death was imperative and on the basis of the above conclusions arrived at by the trial court. The trial court imposed death sentence on Al for commission of murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal vide his judgment and order dated 07.08.2007 rendered in Sessions Case No. 56 of 2007 which has given rise to DB Criminal Murder Reference No. 2 of 2007 as well as DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 filed by A1.

3.12. In the said judgment, the trial Court has also held that after committing the murder and theft of ornaments, the stolen articles were sold to A2 and A3, who received the articles knowing them to be stolen articles, therefore, A2 and A3 also committed offence u/s 411 of the IPC and holding them guilty for the offence u/s 411 IPC each of them has been sentenced to simple imprisonment for three years and fine of Rs. 500, in default of payment of fine further undergo imprisonment for six months for the said offence which has given rise to S.B. Criminal Appeal No. 772 of 2007.

Mr. Suresh Kumbhat, learned counsel for the Al, submitted that there is no eyewitness to the incident of murder of five persons by A1, and, therefore, the prosecution case entirely rests on the circumstantial evidence. According to him, the circumstances pitted by the prosecution against Al are not forming full chain and there are gaps and hence they cannot be made basis for conviction. It is also emphasized by him that the evidence tendered by the prosecution is not sufficient to prove unerringly that A1 was responsible for the alleged offences. So far as the circumstance that A1 was serving with deceased Bhimnath is concerned, learned counsel contended that there is no clinching evidence on record to show that the accused was lastly serving with the deceased. It is also emphasized by him that the clothes put on by the accused were bloodstained have also not been proved by the prosecution and so far recovery of the articles are concerned as prosecution has not proved recovery of those articles beyond reasonable doubt:

4.1. On the aforesaid premises, according to him, a doubt is raised in the prosecution case and hence conviction of the accused for the offence punishable u/s 302, 201 and 380 of the IPC for murdering Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal as well as disappearance of evidence and theft is not well-founded and the same deserves to be set aside. He has also pointed out that the trial court has failed to appreciate the evidence in its true perspective and spirit which has resulted in reaching to a wrong conclusion.

4.2 In the alternative, he has submitted that the trial Court was not justified in relying upon the judgments of Supreme Court for the purpose of imposing death sentence on the accused inasmuch as facts of those cases were quite different from the facts obtaining in instant case. After placing reliance on the decision of the Supreme Court in Panchhi and others Vs. State of UP, , he has contended that brutality of the manner in which a murder is perpetrated may be a ground, but not the sole criterion for judging whether the case is one of the ''rarest of rare cases'' as indicated in Bachan Singh Vs. State of Punjab, and as the trial court has taken into consideration only brutality of the manner in which the murder at Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal was committed, but, has failed to take into consideration mitigating features surrounding murder of the deceased persons, the death sentence imposed on the accused deserves to be commuted to life imprisonment.

4.3. Mr. Kumbhat has also pointed out that when the Court records conviction on the basis of the circumstantial evidence, it should be slow in imposing death sentence on the accused.

4.4. On the aforesaid premise, it is prayed that Criminal Confirmation Case No. 2 of 2007 should be dismissed and the criminal Appeal No. 772 of 2007 filed by Al may be allowed and Al may be acquitted of the offences with which he was charged.

Mr. J.P.S. Choudhary, learned PP for the State, has vehemently opposed the contentions advanced by Mr. Suresh Kumbhat, learned counsel for the accused. According to him, it is true that there is no eyewitness to the incident and, therefore, the case against Al is proved on circumstances pitted by the prosecution against him. In this connection, the prosecution has adduced oral as well as documentary evidence by which the circumstances pitted by the prosecution have been amply proved and there is no iota of doubt in the prosecution case. It also emphasized by him that the circumstances pitted against Al by the prosecution to prove complicity of the accused id commission of the offence are cogently and firmly established by the prosecution and the circumstances established by the evidence of witnesses are of sterling quality and unerringly point towards guilt of Al and if all the circumstances taken cumulatively they are forming a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by Al and none else. Mr. Choudhary has further contended that by adducing and producing evidence of sterling quality, the whole inexplicable tangle of the case has been completely untangled before the Court and the trial Court has correctly appreciated the evidence on record and reached to the most appropriate conclusions. According to him, the impugned judgment and order convicting and sentencing Al for the offence punishable u/s 302 of the IPC dose not call for interference of this Court in exercise of powers u/s 374(2) of the Code.

5.1. In respect of imposition of death sentence upon A1, Mr. Choudhary, learned PP, has submitted that the way in which the ghastly, diabolic and dastardly murder of five innocent persons has been committed by Al, no sympathy can be shown to him and this can be called a rarest of rare cases.

5.2. Mr. Choudhary while dealing with the alternative plea raised by Mr. Kumbhat, learned counsel for the accused, that death sentence should be commuted to life imprisonment as brutality of the manner in which the murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal was committed is not the sole criterion forejudging whether the case falls within the category of rarest of rare cases, has submitted that the accused has committed ghastly and gruesome murder of five hapless and helpless persons without any rhyme or reason and, therefore, death sentence imposed on A on basis of the principle laid down in the decisions which are discussed by the trial Court may be upheld by this Court. According to him, the mitigating and/or aggravating features surrounding murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal have been taken into consideration by the trial Court and having regard to the manner in which the five persons were murdered, death sentence imposed on him should be confirmed by this Court.

5.3. In the alternative. Mr. Choudhary has further submitted that if this court comes to the conclusion that this is not a rarest of rare case and accused shall not be entitled to any commutation or premature release under the Code, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions, and shall spend his entire life in the prison, in view of demoniacal manner in which murder of five innocent persons was committed by Al.

5.4 Lastly it is submitted by Mr. Choudhary, learned PP that no case is made out by the accused for commutation of death sentence to life imprisonment and, therefore, the appeal should be dismissed and the Confirmation Case should be allowed.

Mr. Shambhoo Singh, learned counsel for accused A2 & A3 submitted that both the accused are convicted for the offence u/s 411 IPC and have been sentenced to suffer simple imprisonment for three years and fine of Rs. 500, in default of payment of fine further undergo rigorous imprisonment for six months for the said offence. He does not challenge the order of conviction on merits, however, he submitted that so far as sentences of three years is concerned, the same is harsh and disproportionate to the guilt of both the accused. According to him the articles which were recovered from them were not much valuable and in fact they were not knowing that those articles were stolen by A1. Therefore, so far as imposition of sentence is concerned, leniency may be shown upon to both of them by imposing the sentence undergone by them, which is more than 3 months. He, therefore, urged to allow the appeal of accused A2 and A3 qua sentence by reducing the sentence to the period undergone by them. He therefore, urged to pass appropriate order in this regard.

In reply to the submission made by Mr. Shambhoo Singh, Mr. JPS Choudhary, learned PP contended that both the accused A2 and A3 have committed offence u/s 411 IPC by receiving stolen property knowing them to be stolen which was looted by Al after committing diabolic murder of five persons, therefore, no leniency may be shown upon A2 and A3 so far as imposition of sentence is concerned. He, therefore, urged to dismiss SB Criminal Appeal No. 772 of 2007 filed by A2 and A3.

This court has considered the submissions advanced by Mr. Suresh Kumbhat, learned counsel for Al as well as learned counsel Mr. Shambhoo Singh for accused A2 and A3 and Mr. JPS Choudhary, learned PP for the State at length and in great detail. This court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with confirmation cases, this court has examined the entire evidence on record for itself independently of trial Court and examined arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether it was Al and none else who has committed the murder of five persons. We have also carefully considered the judgments cited at the bar by the learned advocates for the parties.

So far as homicidal death of deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal is concerned, no dispute is raised by the learned counsel for the accused before this Court. However, since this is a case of multiple murders and A1 is sentenced to death, we have independently examined the evidence on record with regard to the homicidal death of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal.

To prove that the deceased persons have died a homicidal death, the prosecution has examined and relied upon the oral testimony of PW22 Dr. G.N. Arora, who has performed the post-mortem on four bodies and also upon the oral testimony of PW24 Dr. H.C. Jain who has performed autopsy on the dead body of Chhoti Devi. After examination, they issued post-mortem reports, which is on record of the case as Exs.P71 to P74. On conjoint reading of oral testimony of both the doctors and the postmortem reports Exs.P71 to P74, there is no manner of doubt that the deceased persons after receiving injuries on account of profuse bleeding ultimately died. Therefore, homicidal death of five persons has been duly proved by the prosecution beyond doubt.

This brings the Court to establish charge levelled against A1 for commission of offence u/s 302,201 and 380 IPC.

At the outset, be it stated that there is no eyewitness to the incident. The case of the prosecution against the accused depends on the circumstances pitted by the prosecution.

Before we proceed to examine the circumstances pitted by the prosecution to prove the case of murder of five persons against the accused, we shall deal with the law laid down by the Apex Court in catena of decisions as to the manner in which the circumstantial evidence can be appreciated and relied upon.

13.1. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The above principles are laid down by the Supreme Court in the case of Hukam Singh Vs. State of Rajasthan, , Eradu and Others Vs. State of Hyderabad, ; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446; State of U.P. Vs. Sukhbasi and Others, ; Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., .

13.2. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the case of Bhagat Ram Vs. State of Punjab, , it was laid down by the Supreme Court that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt.

13.3. We may also make a reference to a decision of the Supreme Court in the case of C. Chenga Reddy and Others Vs. State of Andhra Pradesh, wherein in paragraph 21 at page 207, the Apex Court has observed as under:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should page 338 be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

13.4. In Padala Veera Reddy Vs. State of Andhra Pradesh and others, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

13.5. In the case of State of U.P. Vs. Ashok Kumar Srivastava, , it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found of all the facts so established must be consistent only with the hypothesis of guilt.

13.6. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Supreme Court as far back as in 1952. In the case of Hanumant Vs. The State of Madhya Pradesh, , it was observed by the Supreme Court as under:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other page 339 words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the .act must have been done by the accused.

13.7. A reference may be made to a later decision of the Supreme Court in the case of Shard Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1822. In the said case while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the main is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of the Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are narrated (in para 153 at page 185) as under:

(a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(b) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(c) the circumstances should be of a conclusive nature and tendency.

(d) they should exclude every possible hypothesis except the one to be proved; and

(e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Keeping in forefront the clear principle elucidated by the Supreme Court with regard to the appreciation of circumstantial evidence, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused.

To prove the case against the accused, the prosecution has pitted against the accused various circumstances which we will now examine one by one.

The first circumstance pitted by the prosecution against Al is that he was serving with deceased Bhimnath prior to the incident and he was removed from service. To prove this fact, the prosecution has examined and relied upon witnesses PW35 Pitha Ram, PW34 Sanwarmal and PW29 Yogendra Singh. On re-appraisal of their evidence, according to us the prosecution has successfully established that prior to incident and at the time of incident accused Lalaram was serving with deceased Bhimnath, therefore, first circumstance pitted against A1 with regarding to his serving with deceased Bhimnath is completely established and proved. In this regard, Yogendra Singh PW29, who is contractor of Bajri, has said that accused Lalaram being driver on Bhimnath''s tractor, used to take Bajri from Mandi Choraha. He has proved signature of accused appellant Lalaram on receipts Ex.P63 and P64 issued by his employee. Sanwarmal PW34, who is brother-in-law of deceased Bhimnath has also said that Bhimnath was having a tractor bearing registration No. RJ 194046 and Hero Honda motorcycle No. RJ22 M-4800. In the cross examination he has said that accused Lalaram was working with Bhimnath three months prior to the incident and he saw Lalaram driving tractor of Bhimnath. Pitha Ram, Advocate PW35 has also said that accused Lalaram was driver on tractor RJ-18 R-4640, which Bhimnath sold him for a sum of Rs. 800 to 1000 per month as rent of the tractor, the RC was kept in the name of the Bhimnath. By depositing form No. 29 and 30 he made the registration in his name.

Now the second circumstances is of recovery of tractor trolley motorcycle of deceased and other articles. To prove this fact, the prosecution has relied upon the testimony of PW8 Sawal Ram Bairwa, son of the son-in-law of accused, who inter alia testified that Al brought the tractor with trolley at his house and left there saying that fuel in the tractor had finished, police took the blood from tractor in the presence of Ota Ram and Jabar Singh PW12. To prove the fact that motorcycle was left by the decease on the shop of PW11 Bhagaram, who has testified that Lalaram and Bhanaram had brought the motorcycle to him for repair, which was recovered by police vide Ex.P45.

The third circumstances is of Muddamal articles such a kulhari pant and shirt worn by accused, mobile phone of the deceased as well as the key of the room were recovered from the accused at his instance. To prove this fact, the prosecution has relied upon the oral testimony of PW16 Peera Ram. PW16 Peera Ram in his oral testimony has stated that in his presence Al got recovered from his house Kulhari, Mobile phone, pant and shirt so also a key which were in the beddings lying in his house vide Ex.P59. According to him, accused appellant Lalaram told to the police that key and mobile were of Bhimnath, He is also the witness of recovery of silver ornaments from Bhana Ram and Budha Ram vide Ex.P66 and P68 respectively.

In view of the aforesaid evidence, according to us, prosecution has established the complicity of Al for commission of offence of murdering five persons, on the basis of following circumstances:

(i) Tractor and motorcycle at the deceased was with A1 which he left at the house of P W8 Sanwala Ram and left the motorcycle at the shop of Bhagaram PW 11, therefore relation between the accused and deceased was established as accused was serving with the deceased.

(ii) After murder, mobile of deceased-Bhimnath alongwith key of his house were with Al which was recovered from the house of accused.

(iii) Bloodstained axe and other articles were recovered at the instance of A1.

(iv) Recovery of jewellery from A2& A3 to whom A1 had sold.

On re-appreciation, reevaluation, re-analysis and careful scrutiny of the entire evidence on record, this court is of the firm opinion that the complicity of A1 in murdering deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal is clearly established by the prosecution on the basis of the evidence which have been discussed in detail in foregoing paragraphs of this judgment. No ground is made out by the learned counsel for Al to convince us so as to interfere with the said finding of fact recorded by the trial court. Therefore, the finding recorded by the trial Court, according to us, is just and proper.

On overall view of the matter, we are satisfied and there is no illegality in infirmity in the reasons assigned by the trial Court for convicting A1 for commission of the offence punishable u/s 302 of the IPC for committing murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal as well as u/s 201 IPC for screening the offence and u/s 380 for committing theft. Mr. Suresh Kumbhat, learned counsel for A1, has not been able to persuade us to take a view contrary to the view taken by the trial court. Furthermore, the ultimate conclusion and the resultant order of conviction recorded by the trial court is found to be very imminently, just and proper and therefore, it has to be upheld as according to us no other view or conclusion is possible on the facts and circumstances emerging from the record of. the case except the view of conclusion reached by the trial Court.

In the aforesaid view of the matter, there is no doubt that both the five deceased persons died a homicidal death because of the injuries received by them and Al is the culprit who caused the injuries on vital parts of the deceased persons and killed them and therefore he is guilty of multiple murders punishable u/s 302 of the IPC.

This brings the Court to consider as to whether the death sentence imposed on Al deserves to be commuted to life imprisonment as pleaded by the learned counsel for the accused. As far as the quantum of sentence is concerned, this court has given careful consideration in light of the submissions made by the learned advocates of either side. As to what category a particular case would fall, depends invariably on varying facts of each case and no absolute rule for invariable application or yardsticks as a ready reckoner can be formulated.

23.1. In the case of Panchhi and others Vs. State of UP, , it has been held by the Supreme Court that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the rarest of rare cases as indicated in Bachan Singh Vs. State of Punjab, and that every murder being per see brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. As per the principles laid down in the said case, the intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation are also held to be relevant factors.

23.2. In Om Prakash Vs. State of Haryana, dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, the Supreme Court has observed that the particular and peculiar facts and circumstances of each case should be peculiar facts and circumstances of each case should be properly balanced Noticing the mentally depressed condition of the accused, it was held in the said case that the case was not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the far that the accused was guilty of committing a gruesome act of a pre-meditated and well thought out murder. While striking a contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for weal or woman (neither for money such as extortion, dacoity or robbery or even for lust and rape) or an anti social act involving kidnapping and trafficking in minor girls or of an antisocial element dealing in dangerous drugs which affects the entire moral fiber of the society and kills a number of persons nor was committed for power or political ambitions or as part of organized criminal activity.

23.3. In the case of Vashram Narshibhai Rajpara Vs. State of Gujarat, despite the appellants economic condition and earnest attempt to purchase a house for family after raising loans, wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant and though they were all living together, continuous harassment and constant nagging affected mental balance of the appellant and such sustained provocation reached a boiling point resulting in causing death of his wife and four daughters. The Sessions Court imposed punishment, of death. That was upheld by the High Court. It was noticed by the Supreme Court that the appellant though hailing from a poor family, had no criminal background and it was possible to get him rehabilitated because it could not be established that he was a menace to the society. Under the circumstances, the Supreme Court partly allowed the appeal and modified the sentence of death into one of RI for life.

23.4. In Vinayak Shivajirao Pol Vs. The State of Maharashtra, the accused suspecting fidelity of his wife killed her by strangulation. He cut off her head and thumbs. He threw the headless trunk and the head of two different wells and the thumbs at another place. Such a case was not held at rarest of rare case by the Supreme Court and, therefore, sentence of death awarded by the High Court was reduced to one of imprisonment for life.

23.5. The principles governing imposition of death sentence have been laid down by the Supreme Court in Lehna Vs. State of Haryana, ; Sardar Khan Vs. State of Karnataka, and Simon and Others Vs. State of Karnataka, . According to the Supreme Court imposition of death sentence would be justified if facts are such that to award any punishment less justified if facts are such that to award any punishment less than death sentence would shock the conscience of the court and would be a mockery of justice. What is ruled by the Supreme Court in the above mentioned decisions is that nature of the crime and the accused should be considered, and aggravating as well as mitigating circumstances should be weighed in the context of facts and circumstances of the case before imposing death sentence.

The contention that the accused was involved in criminal activities in past and it has come in the statement of PW6 Naina Ram that he had murdered one Kasai of Pali, therefore, Al is a hardened criminal who has killed five innocent persons and the way in which the murder was committed was ghastly, cruel, brutal, diabolic and dastardly in nature and there is no scope that he can be rehabilitated in future and restored to the society and, therefore, death sentence imposed on him should be confirmed by this court, has also no substance as there is noting on record about his previous conviction.

In this connection, it would be appropriate to refer to the decision of the Supreme Court in the case of Krishan Vs. State of Haryana, . In the said case, the accused was already serving sentence of life imprisonment. He was found guilty of committing another murder while he was released on parole. Felonious propensity of the offender was made sole basis for awarding death sentence. On review of the facts, the Supreme Court has held that felonious propensity of offence cannot be made sole basis for awarding death sentence, and as it was found that the said basis for awarding death sentence, and as it was found that the said case was not falling into category of rarest of rare cases, death sentence was committed to one of life imprisonment.

In the case of Ashok Laxman Sohoni and Another Vs. State of Maharashtra, the Supreme Court while dealing with a case based on circumstantial evidence and the quantum of sentence as to whether the sentence of death was proper or not, has, while commuting the sentence of death to the life imprisonment. In para 12 of the judgment, observed as under:

The other question that remains is whether the courts below were right in passing the sentence of death on appellant No. 1. We feel that as appellant No. 12 was labouring under a hallucination however, unfounded it may be, and as there is no corpus delicti in the instant case so that the courts may be in a position to know the nature and character of the injuries and to assess that the murder was of such a brutal or dastardly character that only a death sentence could be imposed on appellant No. l and in the absence of there being anything to show the exact circumstances in which the murder took place we would rather like to err on the side of leniency. We do not find any special reasons for awarding the extreme penalty of the death on the appellant No. 1. We, therefore, allow appeal of appellant No. 1 only to this extent and commute his sentence from one of death to imprisonment for life.

In the latest decision of the Supreme Court in the case of Rama Subramanian v. State of Kerala, 2006 (1) CCC 923 (S.C.) : AIR 2005 SCW 629, the accused whose services were earlier terminated by deceased had killed her and her three children. The Supreme Court in the said case observed that it is true that the crime committed by the accused was, no doubt, cruel and dastardly but since the circumstances under which the incident happened was not known and the accused deserves so mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 09.08.1999. The accused was annoyed upon the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. Taking over all facts into consideration, the Supreme Court did not think it proper to hold that it was one of the rarest of rare cases where death sentence could be the only punishment and hence the sentence of death imposed on the accused was commuted to life imprisonment.

In the latest decision, the Supreme Court in the case of Swamy Sharaddananda @ Murali Manohar Mishra Vs. State of Karnataka, Supreme Court was dealing with the offence of murder on the basis of circumstantial evidence. In the said case Hon''ble Mr. Justice SB Sinha has held that any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder whereas Hon''ble Justice Katju has held that in cases of circumstantial evidence ordinarily the death penalty should not be awarded, cannot be an absolute proposition of the law. It all depends on the facts of each case, there is no principle of law that only direct evidence is strong and reliable while circumstantial evidence is weak and unreliable. Circumstantial can be as strong and reliable as direct evidence, but the only requirement is that the prosecution must establish beyond reasonable doubt that there is a chain of links which connects the accused with the crime.

In view of the contrary view expressed by both the Hon''ble Judges of the Supreme Court, the matter was referred to the larger bench. The larger bench while dealing with the reference made to them has held that considering lack of uniformity in se Tightening system and absolute irrevocability of death penalty, sentencing accused to death would not be proper and substituted death sentence by life imprisonment for rest of life. (See Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, 2008 (4) CCC 164 (S.C.) : AIR 2008 SCW 5110).

Applying the principles laid down by the Supreme Court in the above referred to judgments to the fact of the present case, according to us, there is no manner of doubt that the power of a Judge to determine appropriate sentence is based on the principle of proportionality so that punishment fits with the crime. However, the mitigating circumstances cannot be overlooked by the court. In instant case, we have already held the accused guilty of the offence of commission of multiple murders of five persons. However, motive for committing the crime pleaded by the prosecution has not been established at all. Therefore, the motive behind the commission of the crime has not been brought on the record of the case to show the actual circumstances for committing the murders and the failure on the part of the prosecution to establish and the failure on the part of the prosecution to establish the motive for commission of the offence, we would like to err on the side of leniency. Therefore, we do not find any special reason for imposing extreme penalty of death on the accused as according to us this is not a rarest of rare case to impose death penalty on the accused, who has been found guilty on the basis of circumstantial evidence.

Having regard to the principle laid down by the Supreme Court in several reported decisions and more particularly in view of the fact that the trial court has recorded conviction on the basis of circumstantial evidence, this court is of the opinion that death sentence imposed on the accused deserves to be commuted to one of the life imprisonment.

In view of the aforesaid finding, now the next question is as to what would be the appropriate punishment?

Section 57, IPC provides that in calculating fractions of terms of punishment, imprisonment for life is to be reckoned as equivalent to the imprisonment for 20 years. In our views, considering the heinous barbaric offence committed by A1, in no set of circumstances Al should be released before completion of 20 years of imprisonment. The Supreme Court in the case of Dalbir Singh v. State of Punjab, 1979 (3) SGC 745, considering the question that in case where sentence of death is reduced to life imprisonment for how many years accused should be detained in prison. The Supreme Court in paragraph 14 held thus:

The sentence of death in the present appeal are made to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad Vs. State of Uttar Pradesh, . Taking the clue from the English legislation on abolition, we may suggest that life imprisonment for the whole of the man''s life, but in practice amounts to incarceration for a period between 10 and 14 years may at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the outlet may be some remote time repeat murder.

In case of Subhash Chander v. Krishna Lal, 2001 ACJ 665 (S.C.) : AIR 2001 SCW 1492, the aforesaid principle was followed by the Supreme Court and it was ordered that accused shall be incarcerated for the remainder of his life and that he shall not be let loose upon the society as he is a potential danger.

Seen in the above context, according to us. while upholding the conviction of Al for commission of the offence punishable u/s 302 of the IPC for five murders, it is also required to be held that this is not a rarest of rare case wherein death sentence imposed upon Al could be the only punishment. Therefore, we commute the sentence imposed upon Al and direct that the accused shall undergo imprisonment for life with the further direction that A1 shall not be released from jail unless he has served out atleast before 20 years of imprisonment including the period already undergone by him.

This brings us to examine the case of A2 ad A3, who have been held guilty for the offence u/s 411 IPC and sentenced for receiving stolen articles from Al knowing them to be stolen. Mr. Shambhoo Singh, learned counsel for accused A2 and A3 has not challenged the order on merit, however, he has prayed for mercy having regard to the facts and circumstances emerging from the record of the case and more particularly accused A2 and A3 receiving stolen articles from AI though knowing to be stolen which are not of much value and when the maximum punishment for offence u/s 411 is three years, we deem it proper to reduce the sentence by imposing the sentence of period undergone by them, which is more than three years.

For the foregoing reasons DB Criminal Murder Reference No. 2 of 2007 is dismissed whereas DB criminal jail appeal No. 835 of 2007 and DB criminal appeal No. 838 of 2007 both filed by Al are partly allowed. Resultantly, conviction of Al for commission of the offence punishable u/s 302 of the IPC for committing five murders is hereby confirmed and maintained. However, death sentence imposed on him for commission of murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal is hereby commuted and modified into imprisonment for life. We further direct that A1 shall not be released from prison unless he has served out atleast 20 years imprisonment including the period already undergone by him.

So far as criminal appeal No. 772 of 2007 filed by A2 and A3 is concerned, same is also partly allowed and while upholding the conviction recorded against them for the offence u/s 411 IPC, we modify their sentence and reduce it to the period already undergone which is more than three years. They are on bail, therefore, no further order is required to be passed.

Accordingly, DB Criminal Reference Case No. 2 of 2007, DB Criminal Jail Appeal No. 835 of 2007, DB Criminal Appeal No. 838 of 2007 and SB Criminal Appeal No. 772 of 2007 stand disposed of.

Muddamal to be disposed of in terms of the directions given by the trial court in the impugned judgment and order.