The State of West Bengal vs Debabrata Das

Indrajit Chatterjee, J.—1. We are hearing the death reference and appeal together arising out of Contai P.S Case No. 33 of 2014 dated 25.01.2014 which culminated into G.R Case No. 107 of 2014 of the Additional Chief Judicial Magistrate, Contai. Ultimately, the said G.R case became S.T No. 2 (8) of 2014 which was disposed of by the learned Additional Sessions Judge, Contai, within the district of Purba Medinipur in that Sessions Trial and the learned Court convicted the present accused in respect of the charge under Section 302 of the IPC and sentenced him to death. The accused has preferred an appeal being CRA No. 520 of 2015 and the proceedings of that Sessions trial was also submitted by the Trial Court for confirmation of the death reference.

The case which went for trial can be stated in brief thus. One FIR was lodged by Maheswar Mondal, a member of Mukundapur Gram Panchayat situate within Dulalpur Gram Panchayat and PW 3 was the Upa-Pradhan of that gram panchayat and PW 2 was the ''Kormadhyaka'' of that panchayat samity. Village Mukundapur was within the electoral jurisdiction of PW 2. The complaint gave rise to Contai P.S case No. 33 dated 25.01.2014 and the case was registered under Section 302 of the IPC.

In the FIR it was alleged that on 25.01.2014 at about 2.30-3.00 pm a heinous crime took place in front of the house of Anukul Das and the de facto complainant came to know about such brutal incident from the local people and thereafter he went to the place of occurrence that is the house of Anukul Das where four dead bodies were found lying on the ground with bleeding injuries and covered by one polythene sheet. It was further stated in the FIR that the accused Debabrata Das who is the brother of that Anukul Das had committed such crime with a sharp cutting weapon and by repeated strokes had killed his mother Urmila Das, his full-brother Anukul Das, wife of Anukul Das i.e. Moushoumi Das and the daughter of Anukul Das i.e. Moushree Das and thereafter fled away riding on the motor cycle belonging to Anukul Das, the deceased. Apart from this FIR, four UD cases of the said police were started being UD Case No. 15/14 dated 25.01.2014, 16/14 dated 25.01.2014, 17/14 dated 25.01.2014 and 18/14 dated 25.01.2014 were started. Inquest examinations were done on the dead bodies of the four victims by ASI Raghabendu Ghosh (PW-10) and he forwarded those four dead bodies to be taken to the Contai S.D. Hospital for post-mortem examination through constable Bharat Chalak (PW-11). Postmortem examination was conducted by Dr. Bidhan Chandra Sarkar (PW-12) of the said hospital.

After registration of the specific case at 21.15 hours on 25.01.2014 the investigation was taken up by S.I. Subhojit Sarkar (PW-15). The DIG, the SDPO and the Inspector of Police along with the Investigating Officer visited the spot, that is, "Urmila Bhawan" a residential house and found four dead bodies were lying in the courtyard and a plastic cover was already put on those dead bodies. On removing that plastic sheet (Material Ext. VII) the police officers found huge blood and injuries over the said dead bodies. During the course of investigation the IO of this case prepared rough sketch map with index marked as Exts.19 and 19/1 before the learned Trial Court and recorded the statements of the witnesses. On the same day he seized some articles like the earth stained with blood, paddy and earth stained with blood, controlled earth and that plastic sheet.

On the same date, the investigating officer got information from Marisda Police Station that the accused Debabrata Das had gone to his sister''s (PW-7) house at village-Kharipukuria and on receipt of that information the IO went there and found the accused in front of the gate of the house of PW-6 and PW-7 who are respectively brother-in-law (jamaibabu) and sister of the accused and the accused was arrested. The investigating officer found stains of blood on the wearing apparel of the accused Debabrata and those were duly seized as per seizure list (Ext. 21), motor cycle was also seized (marked as Material Ext. III). The accused Debabrata Das was arrested from village Kharipukuria at about 23.05 hours and the accused was forwarded to the court.

The I.O of this case prayed for recording of statements of two witnesses under Section 164 of the Cr.P.C and such statements were recorded by the Judicial Magistrate, Durga Shankar Rana, that is, PW 13. During the course of investigation the I.O of this case seized the weapon of offence as shown by the accused from the stack of bricks in ''Urmila Bhawan'' and the accused was asked to demonstrate how he murdered those four victims. Such demonstration was recorded in a Compact Disk.

When the accused was produced before the Additional Chief Judicial Magistrate, Contai, a prayer was made by the I.O for police remand of the accused and that was allowed for five days. When the accused was produced again from police custody a prayer was submitted by the investigating officer for recording his confessional statement under Section 164 of the Cr.P.C but the accused declined to make such a statement after he was made aware regarding the consequences of such statements, if made. The I.O of this case also seized as per seizure lists dated 25.01.2014, the controlled earth, paddy smeared with blood, that plastic sheet, torn yellow T-Shirt stained with blood which was on the body of the present appellant, one old green trousers which was also smeared with blood from the accused and one Yahama Motor Cycle bearing Registration No. WB 30J 0521 which was used by the present accused for fleeing away. The I.O collected the post-mortem report and collected the copies of inquest reports.

After completion of investigation, the I.O of this case submitted charge-sheet against the accused under Section 302 of the I.P.C. The case was committed to the Court of Sessions and ultimately it was transferred to the Trial Court being the Additional Sessions Judge, 3rd Court at Tamluk within the district of Purba Medinipur and after recording the evidence of 15 prosecution witnesses, examination of the accused under Section 313 of the Cr.P.C convicted the present accused in respect of the charge punishable under Section 302 of the I.P.C. We have already noted the punishment awarded by the Trial Court.

The Defence did not adduce any oral evidence but on behalf of the defence some documents were marked as exhibits that is the seizure list dated 26.01.2014 in U.D case No. 15 of 2014, seizure list dated 26.01.2014 in UD case No. 16 of 2014, Seizure list dated 26.01.2014 in UD case No. 17 of 2014 and seizure list dated 26.01.2014 in UD case No. 18 of 2014, respectively marked as Exhibits A, A/1, A/2 and A/3. The defence also marked signature of PW 11 on the four seizure lists dated 26.01.2014 which were marked as Exhibit A4 series.

The defence made out a positive case at the time of trial through the cross-examination of the PWs that he is innocent and the murders were committed by some other persons. In the 313 Cr.P.C examination he made out a further positive case that he shifted his family to his in-laws house before three days of the incident and on the date of the incident at about 11.30 to 12 noon a quarrel took place between his elder brother and four strangers, for which, few village people assembled there but at that time the accused left the house on the motor cycle of his nephew (bhagne) and after taking lunch there and depositing the motor cycle there he went to his sister''s house that is the house of Krishna Paria (PW 7) at village Kharipukuria by bus and then police arrested him. The accused has denied in his answer to question under Section 313 Cr.P.C that there was any quarrel between him and his elder brother Anukul.

At the time of hearing of argument it was submitted by the learned counsel appearing on behalf of the defence that through the evidence of prosecution witnesses and the documents relied upon by the prosecution, it has miserably failed to bring home the charge under Section 302 of the Indian Penal Code and there was no reason to convict the accused in respect of the said charge as held by the learned Trial Court. The argument of the defence may be stated point wise thus:--

"1. That in the dead body of the four victims there were sixteen injuries and it was not possible by a single man to inflict so many injuries and that such murders were committed by some outsider miscreants and as such the claim of the defence that the victim Anukul was a man of loose character has been supported.

It is impossible to believe that when each of the victims was being assaulted the other victims would not cry for help.

It is impossible to believe that the surrounding people and the neighbours were not attracted when the crime took place or when the crime was going on.

Extra judicial confession on which the learned Trial Court relied upon cannot be accepted as evidence because it was made to the police officer.

That the theory of last seen together is not attracted in view of positive assertion made by the accused when he was examined under Section 313 Cr.P.C as it is the positive case of the defence that he left his house with the motor cycle of his nephew when four persons were quarrelling inside their house with the victim Anukul.

That the recovery of weapon of offence cannot be admissible in evidence because of non-recording of statement of the accused under Section 27 of the Evidence Act.

That as it is a case based on circumstantial evidence the chain must be complete and if the chain is broken the accused is entitled to be acquitted.

That when two views are possible, one leading to conviction and other leading to acquittal of the accused, the court must acquit the accused and as such benefit of doubt be given to the accused.

That the learned Trial Court erred in accepting the 164 Cr.P.C statement made by the witnesses even though the witnesses did not depose on that line before the Trial Court. The 164 Cr.P.C statement may be used either for contradiction or for corroboration as it is not a piece of substantive evidence, and,

That even if, this court is of the opinion that the accused had committed the murder of those victims even then such a case cannot be treated as ''rarest of the rare cases'' to get a death sentence as there was no criminal antecedent of the present accused."

The learned defence counsel relied upon following decisions of the Apex Court:--

"1. , AIR 2012 (SC) 2435 (Sahadevan and Anr v. State of Tamil Nadu) wherein the Apex Court held that a case based on circumstantial evidence has to be considered with great care and in the case before the floor of the Apex Court considering the facts and circumstances of that case the Hon''ble Apex Court was pleased to held that extra judicial confession cannot be relied upon to held the appellant guilty.

, AIR 2013 SC. 2422 (Rumi Bora Dutta v. State of Assam) wherein the Apex Court has laid down a principle to assess a case based on circumstantial evidence. It was held by the Apex Court "that the facts and circumstances which lead towards guilt of the accused must be fully established and the evidence must be led to a singular conclusion that the accused was guilty".

, AIR 1956 SC. 116 (Willie (Willium) Slaney v. State of M.P) wherein the Apex Court held as regards prejudice caused to the accused in the absence of a charge and the effect thereof ''but unfortunately this decision cannot apply in the present case before the floor of this Court as in this case the charge was duly framed and explained to the accused and there is nothing on record to show that the accused was prejudiced due to framing of charge''.

, AIR 2011 SC. 2296 (State of U.P v. Mohd. Iqram and Anr.) wherein the Apex Court held that the court is under legal obligation to put incriminating circumstances before the accused and solicit his response and this provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding rights to accused. We have gone through the 313 Cr.P.C statement made by the accused and we can safely say that the accused duly understood the questions put to him in 313 Cr.P.C and he duly answered those questions. We are satisfied that no prejudice was caused to the accused while those questions were put and the accused gave answers.

, 2014 Cr.L.J 1824 (Subhasish Mondal @ Bijoy v. State of West Bengal) wherein the Apex Court held that when questions are put to the accused persons to explain something and if the accused fails to give answers or to offer appropriate explanation or gives false answer, the same can be counted as providing missing link for building the chain of circumstances.

In this case the other decision of the Apex Court as reported in , (2013) 7 SCC 45 (Hari Vardhan Babubhai Patel v. State of Gujrat) was relied upon.

, 2010 Cr.L.J (SC) 2032 (Jiten Besra v. State of West Bengal) wherein the Apex Court gave benefit of doubt to the accused who was involved in the murder of his in laws but the evidence of his wife and other witnesses however showed that despite strained relationship the accused was on visiting terms and that it was not proved that the accused was alone in that house. The Apex Court was pleased to acquit the accused even though blood on clothes of accused was not proved to be that of the deceased.

, AIR 2014 SC 3756 (Sangili @ Sanganathan v. Sate of Tamil Nadu) wherein the Apex Court held that suspicion however strong cannot be a substitute for proof and as such acquitted the accused in that case before the floor of the Apex Court.

, 2014 Cr.L.J (SC) 3788 (Santosh Kumar Singh v. State of Madhya Pradesh) wherein the accused was 26 years old and one educated person at the time of offence and he was not involved in any other case and there was no case of the prosecution that appellant cannot be reformed or that he is social menace, there is not criminal antecedent of the appellant and in that case the Apex Court was pleased to convert the death penalty to that of life imprisonment even though the accused committed heinous offence. The Apex Court further illustrated by saying that it cannot be held on facts and circumstances of that case with certainty that the case can be termed as in "rarest of the rare category".

, AIR (2012) SC 913 (Jity Patnaik v. Sanatan Mohakud & Ors.) this decision is on Representation of the People Act and naturally this decision cannot help us anyway in deciding this appeal."

We are accepting the argument of the defence that the recovery of that chopper cannot involve the present accused as because his statement was not recorded under Section 27 of the Evidence Act and further that some of the witnesses to the said seizure list did not depose in favour of the prosecution to give the prosecution story of recovery, strength.

We are also accepting the defence version that the reconstruction as made by the accused before the police which is contained in a compact disk cannot have any value considering the fact that it was taken in the presence of the police. The argument of the defence that such murder was the handiwork of several persons is not convincing to us, if, the entire scene is visualised by any person. Had those four strangers entered into the house ''Urmila Bhawan'' then they would not have wiped out the entire family of Anukul. Considering the fact that the entire family of Anukul was wiped out and considering the number of injuries inflicted each of the victims that it was the handiwork of one person who is very close to the victims and the said accused bore a grudge against Anukul and others. We admit that this is not a case of last seen together but this is a case whether the accused was last seen in that ''Urmila Bhawan'' before the incident occurred. We also admit the claim of the defence that when a parallel story comes out which creates a doubt in the mind of the court, the defence case may be considered in case of circumstantial evidence.

It is difficult for this court to believe that the leaders of a particular party held a meeting on 29th of January, 2014 and in that meeting one PW put his signature on the seizure list. If this is verified with the other witnesses then we can say that the said seizure list was not signed in that meeting in which some police officers were present. May be some police officers were present at that time in that village but we must not forget that in this case four persons were murdered and naturally this case cannot be equated with other murder cases and the visit of the police party on 29th of January, 2014 at night cannot be held to be one important issue in this appeal.

It was argued by the defence that this accused was not arrested at about 11 PM on the date of the incident. We are also of the view that if PWs 6 & 7 are to be believed (who are the star witness of the prosecution), then the arrest must have been made on or before 6 PM on that date, 25.01.2014. To calculate the time of arrest of the accused one may not go to see what is there in the memo of arrest which is a document created by police. The PWs referred to above has fixed the time of the incident to be in between 2:00 to 3:30 PM and police was informed at about 4 p.m. The police came to the spot at about 4:25 PM and as per evidence on record the police got the information as regards the accused after they arrived at the place of the incident. Thus, it is more matching with the evidence that accused was arrested before 6 PM on that date and for the reasons best known to the IO he filled up the memo of arrest to show that the arrest was made at about 11 PM on the date of the incident. As the FIR was lodged after 9.15 PM on that date, naturally the IO had no other option but to show that the accused was arrested after the FIR was lodged and that they had to go to Marishda from village Mukundpur, which is 45 minutes journey by motor cycle. The defence has not disputed regarding the arrest of the accused but the time was disputed and we fix the time to be in between 4:30 to 6 PM. It may be that it is not matching with the FIR but evidence of the PWs suggests this.

In counter to all these it was argued on behalf of the prosecution why those an outsider will kill a small child, who was then just three and half years old or the old mother or the wife of Anukul and as such the story of the defence that the offence was committed by some other persons cannot be relied upon by this court. Regarding the plea of ''alibi'' taken by the accused it was argued by the prosecution that the accused had miserably failed to prove the ''alibi'' by adducing cogent evidence and that proves the fact that at the time of the incident he was present at the place of the incident. He could have examined his in laws or that nephew (bhagne) or any villager of his village or any villager of the village Kharipukuria or from the village of his in laws. It was further argued that when the accused was arrested he did not produce any ticket of the bus to prove his claim that from his in-laws house he went to the house of PWs 6 and 7 by bus.

He further submitted that the claim of the accused that he was not on inimical terms with his elder brother is contrary to the evidence on record, learned prosecutor took us to different portions of the evidence of the PWs to establish his contention that it was the accused and none else who committed the murder of four persons and thereby wiped out the entire family of Anukul.

Regarding the plea of the defence that the accused was not of good character, it was submitted by the learned Public Prosecutor that this fact only came up through the evidence of PW 1 and that too in the cross-examination but no other witness deposed on that line. Regarding the claim of the defence through the evidence of PW 1 that since after the incident those alleged miscreants are not coming to that house it was submitted by the learned prosecutor that after the death of the four victims and the present appellant being in jail custody, this ''Urmila Bhawan'' has become a haunted house and naturally no person whoever he may be, will come to visit the house.

Learned prosecutor frankly submitted that 164 Cr.P.C statement can be used by the prosecution only for contradiction or for corroboration and it is not a piece of substantive evidence. Regarding the extra judicial confession it was submitted by the learned prosecutor that as per evidence of PW-6 such extra judicial confession was made by the appellant to the police which is not admissible in evidence because of the bar under Section 25 of the Evidence Act. Regarding the evidence of PW-7 that when she returned back from market at about 6 pm she heard from her husband (PW 6) that the accused told him regarding the incident of murder by him of his mother, brother etc. can be used as res gestae.

He further submitted that the neighbouring people as per the sketch map have been examined as PWs and as such it cannot be said that the neighbours were not made witnesses by the prosecution. He submitted that PW-4 is the son of Bisnupada who is PW-5. It was further argued by the learned prosecutor that the accused took a false plea in his examination under Section 313 Cr.P.C when he stated in answer to question Nos. 42, 53 and 60 that there was no dispute between the two brothers whereas it is the consistent version of the PWs that both the brothers were in inimical terms.

Regarding the conduct of the accused it was argued that even after seeing his elder brother, Anukul was quarrelling with four persons as claimed by the accused in his examination under Section 313 Cr.P.C., the fact that the accused left that house even after seeing that incident will speak volume against him and it will prove that the two brothers were in inimical terms.

Learned Public Prosecutor submitted that the accused had taken one ''alibi'' that at the time of the incident he was not in house but he was in the house of his in laws and as such the burden of proof was on him to discharge. It was further submitted that the accused could have examined his wife, his nephew or his in-laws as defence witnesses to prove the ''alibi'' that he went to his in-laws house riding on a motor cycle of his nephew (Bhagne) on that date and that he deposited the said motor cycle at the house of his in-laws and thereafter went to his sister''s house (house of PW-6 and PW-7).

This was certainly within the knowledge of the present accused as claimed by him in his 313 Cr.P.C. examination. Learned prosecutor submitted that the defence of ''alibi'' must be proved by the accused and if that is not proved the accused will be and incriminating circumstance.

It is also claimed by the prosecution that the incident as per PW-2 took place at about 2-2:30 PM and he informed the police over phone. It has also been claimed by the learned Public Prosecutor that the place of occurrence is nine kilometres from Contai P.S. It is the claim of the prosecution that the inquest examination on the dead bodies of the victims started from 4:55PM and continued up to 7:15 PM, that the accused was arrested at 23:05 hours, as per arrest memo, which was marked as Exbt.22. On our asking the learned prosecutor had to admit that as per the evidence of PW-6 and PW-7 the accused was in the clutches of the police, who was arrested from village Marisda at least before 6 PM on the date of the incident.

Learned prosecutor also produced the Case Diary under Section 172 (2) of the Code of Criminal Procedure to substantiate the claim of the prosecution that the accused was arrested only after registration of this case roughly after 9 p.m. on that date. To establish the contention of the prosecution that the murders were committed in cold blood, it was submitted by the learned prosecutor that from the evidence on record and 313 examination it will be clear that the accused shifted his family consisting of his wife and son prior to three days of such ghastly murder. He further submitted that in ''Urmila Bhavan'' all the four victims and the present accused used to reside and as such as per Section 106 of the Evidence Act the accused would have explain how four inmates of that house were murdered on 25.01.2014 and the accused ought to have explained this.

Regarding the claim of the defence that the victims were murdered by some outsiders it was claimed by the prosecutor that if the injuries sustained by the victims are taken into consideration then it must be said that it was the handiwork of a particular person and the said person must be such a person who had grudge over those persons. He took us to the inquest report to show that each and every victim got resisting wounds except that small child. He further reiterated that the victims were the mother, elder brother, sister-in-law (Boudi) and a small child of the elder brother and as such even if the other victims saw the act of the accused while murdering the first victim then the other victims could not go away from the courtyard of that house knowing fully well that what would be the fate of the other victims if he or she goes out of the place. It must be the tendency of a near relation to help the relation in such a state of affairs.

We are apprised of the fact that the answers given by the accused under Section 313 Cr.P.C are not enough to convict the said accused relying on such examination. There must be some corroborative evidence. In the instance case before us if the 313 examination of the accused is taken into consideration then one can safely say that the accused from day one of the recording such statements misdirected the court by taking false pleas and that is one additional evidence against the said accused. We are already told of the circumstances which we have taken note of against this accused. The argument of the defence that the accused was prejudiced as some important questions were not put to the accused in his examination 313 Cr.P.C is not tenable as on scrutiny of the 313 examination we are satisfied that the learned Trial Court duly recorded the statement of the accused under Section 313 Cr.P.C and the accused was not prejudiced in anyway by such examination.

It was further submitted by the learned advocate appearing on behalf of the prosecution by taking us to the evidence on record to show that PW-4 deposed that he saw the present accused go out of that house (the place of occurrence) riding on the motor cycle, that PW-6 also deposed that they saw the accused to come to their house riding the motor cycle which was the motor cycle of the elder brother of the accused. He frankly submitted that the extra judicial confession relied upon by the learned Trial Court ought not to have been relied upon as such extra judicial confession was made to a police officer which is clear from the evidence of PW-6. He submitted that the seizure of ''genji'' and the motor cycle were duly proved through the evidence of PWs 6 &7 but he did not agree with the evidence of PW-6 that the accused was arrested from in front of the house of that witness and preferred to go with the arrest memo (Exbt.22) wherefrom it will be clear that this accused was arrested at 11.05 PM on that date.

The learned public prosecutor mainly relied upon on the evidence of PWs-4, 6 and 7, also the evidence of the Autopsy Surgeon (PW-12), the Investigating Officer (PW-15) and also PW-10 that is the ASI who conducted the inquest examination on the dead bodies of the victims.

It was further submitted by the Ld. Prosecutor that if the injuries of the inquest reports are believed then that little girl, who is a victim would not have received so many injuries. If such injuries were caused by some other non-related person then such injuries would not have been inflicted. If the assault was by some outsiders then they would have hit the blows on the back side of the parietal region and such assailants could not have murdered that little girl who at that point of time was not in a position to say what happened on that date. The injuries were also noticed on the vital parts of the body of that small child and she did not sustain any resisting wound but all the other victims sustained resisting wounds.

He further submitted that if there is any contradiction between the inquest report and the medical report then the post-mortem report will prevail. He frankly submitted that all the injuries sustained by all the four victims were similar in nature and on the vital parts from which it is clear that the only intention of the accused was to wipe out Anukul and his family and that he was so revengeful to cause so many injuries to ensure the deaths. Regarding the recovery of weapon of offence he submitted that there is no clear cut evidence that such recovery was made pursuant to the statement of the accused to make such statement admissible under Section 27 of the Evidence Act. In the same breathe he submitted that the chopper was forwarded for chemical examination and blood was found on it but the blood group could not be ascertained because of disintegration. He submitted that it is nobody''s case that such blood was of a cow or buffalo.

He submitted the following decisions on the principle decided by the Apex Court in respect of Section 106 of the Evidence Act.

"1) (State of Rajasthan v. Thakur Singh) as reported in , 2014(12) SCC 211 : , 2014(4) AICLR 121 in that case the Apex Court held while discussing Section 106 of the Evidence Act and relying on the judgment of Shambhu Nath Mehra v. State of Ajmer (, 1956 SCR 199), Trimukh Maroti Kirkan v. State of Maharashtra , (2006) 10 SCC 681 and Ganeshlal v. State of Maharashtra , (1992) 3 SCC 106, held in paragraph 22 of the judgment that, "the law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts." It further observed that Thakur Singh was obliged to prove his innocence or that he had not committed any offence. The Apex Court further observed that all that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room.

2) On this point he also cited the decision of the Apex Court as reported in , 1956 AIR (SC) 404 (Shambhu Nath Mehra v. State of Ajmer) wherein the Hon''ble Apex Court decided that Section 106 is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience and further that word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge.

3) In , 2006 (10) SCC 681 : 2006 AIR (SCW) 5300 (Trimukh Maroti Kirkan v. State of Maharashtra) it was held in Paragraphs-12 and 14 that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.

4) (State of West Bengal v. Mir Mohd. Omar) , (2000) 8 SCC 382 wherein the Apex Court observed in Paragraph-31 of the judgment that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

5) , 1992(3) SCC 106 (Ganeshlal v. State of Maharashtra) in Paragraph-10 therein on the facts and circumstances of that case the Apex Court held that when the death had occurred in their custody false plea of suicide is yet another relevant fact. When the death had occurred in their custody the appellant is under an obligation in Section 313 Criminal Procedure Code statement at least to give a plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. All these are completely inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder.

6) , 2009 (6) Page 61 (Narendra v. Karnataka) in which the Apex Court held that when plea of ''alibi'' has been taken before the court and has been proved to be false will lead to the inference that the accused was the culprit."

The learned public prosecutor took us to the evidence of P.Ws 6 and 7 to establish the fact that the ''genji'' which the accused was wearing contained blood. He further submitted by taking us to Exhibit 21 that is the seizure list as regards the blood stained ''genji'' and trousers which was on the body of the accused/appellant and regarding the seizure of that Yahama Motor Cycle bearing Registration No. WB 30J 0521. Both PWs 6 and 7 who are the witnesses to the seizure lists regarding the seizure of blood stained ''genji'', green colour trousers and Yahama Motor Cycle have categorically deposed regarding such seizure and proved that the genji and trousers which the accused/appellant was wearing at that point of time was stained with blood. The report of the chemical examiner marked as Exhibit 15 will prove that blood was detected on the controlled earth, paddy, plastic sheet, the genji, the chopper and also the earth with dried grass. The learned Prosecutor submitted that it is true that the group of the blood could not be determined as either it was not sufficient for testing or had disintegrated. Thus, it was submitted by the learned prosecutor that the evidence of reconstruction of the incident by the accused/appellant made before the police officer is inadmissible in evidence.

The learned prosecutor submitted that in the instant case the material witnesses were declared hostile being the co-villager or relations of the victim and as such this case is to be judged keeping in mind the aforesaid position of this case.

In reply it was submitted by the learned Lawyer appearing on behalf of the defence that motive is not the factor in such a case but the presence of the accused is no doubt a factor to be reckoned with, on this point he cited the decision of the Apex Court as reported in , 2012 (4) SCC Page 124 (Sampath Kumar v. Inspector of Police) thus he submitted that simple motive is nothing in a case under Section 302 of the IPC. He further submitted that PW 4 did not say that the accused was wearing any yellow colour ''genji'' with stains of blood and as such the evidence of PWs 6 and 7 that the accused was wearing the blood stained genji and one green colour trousers as deposed by PWs 6 and 7 must be viewed with suspicion.

On the point of sentence, it was submitted by the learned Prosecutor that even though the victim murdered the entire family and the murders were gruesome but at the same time the court must keep in mind that the case is based on circumstantial evidence.

We do not agree with the Trial Court that the extrajudicial confession made to police is admissible in evidence which was made in presence of PW-6. We also do not sponsor the view of the Trial Court that the entire 164 Cr.P.C statements made by PWs 6 and 7 are admissible in evidence. It is needless to mention that 164 Cr.P.C statement may be used only for the purpose of corroboration or contradiction and as such what those witnesses deposed before the Trial Court can be treated as substantive evidence and what they stated to the judicial Magistrate (PW 13) will not automatically go into evidence.

The present appellant stated in his examination under Section 313 of the Cr.P.C that there was no ill feeling between the two brothers that is the appellant and the victim Anukul. Unfortunately for the defence all the public witnesses deposed that there was no good relationship between these two brothers. We can safely say that these two brothers were at loggerhead. It is clear from the evidence on record that their father allowed the victim Anukul to join the government service after he took voluntary retirement, that the victim Anukul was obstructing the present appellant from cultivating even the small quantity of land measuring two and half bighas and that the relationship between the two brothers became strained after the wife of the victim Anukul stepped into that house.

We are not unmindful of the decision of the Apex Court as reported in , 2012 (4) SCC Page 124 (Sampath Kumar v. Inspector of Police), wherein the Apex Court held that Motive alone can hardly be a ground for conviction and in absence of any other circumstantial evidence, motive would not be sufficient to convict the accused. On the materials on record there may arise some suspicion against the appellant/accused, but suspicion, howsoever, strong cannot take the place of proof. We shall take up the matter in detail when we will discuss the evidence on record to establish the main facets of this case that whether the accused was actually present at the place of occurrence or not.

We have gone through the evidence on record. PW 1 is the de facto complainant of this case who is a resident of Mukundapur, that is the village of the victims and the present appellant but he did not see the incident but he fixed the time of the incident between 2 to 2.30 P.M. He also admitted the fact that Anukul Das and the accused were on inimical terms since the last three or four years and that in that house Abanti Kumar (father) did not reside instead he resided in the house of his daughters as per turn.

PW 2 is Pradip Gayen, who was the Member of a Panchayat Samity, at the relevant point of time. He is a resident of Majna. He also did not see the incident but heard of the incident. The residence of this witness is 5 or 6 KMs from that ill-fated house. In his cross-examination he deposed that after the police came to the PO the police persons for the first time touched the said dead bodies. Thus, there is nothing important in his evidence.

PW 3, Anshuman Pradhan, was the Upa-Pradhan of 3 No. Dulalpur Gram Panchayat within which Mukundapur village was located. This witness deposed that the chopper with stains of blood was seized from the garbage which was in front of the stack of bricks and that article was recovered by the police from there.

PW 4, Sanjoy Das Adhikari, is the neighbour of the said house called ''Urmila Bhawan''. The substantive evidence of this man as deposed before the Trial Court is that "the incident happened on 25.1.2014. I was taking my lunch in said noon and at that time I heard a hue and cry from that house of Anukul and Debabrata. I rush to the house of the said brothers and while I reached to that house I saw that the accused Debabrata by riding motor cycle leaving his house. Seeing that I came back to my house (sic)". This witness was declared hostile by the prosecution as he did not support the further case of the prosecution. The other portion of his evidence is either inadmissible or not important to discuss.

PW 5, Bishnu Pada Das Adhikari, is a villager of Mukundapur. This witness reached the place of occurrence at about 3 to 3.30 P.M and as such he cannot be a material witness but this witness deposed that Anukul and Debabrata were brothers and they used to quarrel always and there was dispute between them regarding property matters.

PW 6, Srimanta Paria, is the brother-in-law of the present accused/appellant and his wife is PW 7 that is the sister of the present appellant. PW 6 deposed that there were differences between Anukul and the present appellant regarding property. This witness further deposed that the incident took place on 25.01.2014 and at about 4.30 to 5 P.M. This appellant came to his house by riding a motor cycle which belonged to Anukul Das and after a short while police came there and arrested the present appellant Debabrata. The accused/appellant made a confession to the police and also before the villagers. Such confession is barred under Section 25 of the Evidence Act. It is clear from the evidence of this witness that after one year of the marriage of Anukul, the relation between the two brothers became bitter. This witness also identified the torn genji/T-shirt and further deposed that the present appellant was wearing this genji or T-shirt. He also identified the motor cycle and further deposed that the accused came to his house by riding that motor cycle in the said afternoon. This witness was declared hostile. But the portion of evidence stated above is very much admissible in evidence. This witness is also one witness to the seizure list regarding the seizure of that Genji, motor cycle and one trousers of the accused. His signature was marked as Exhibit 5/4. It is also clear from his evidence that the victim Anukul even used to obstruct and protest regarding the cultivation made by Debabrata on the land of their father and the present appellant was prevented from supplying water to the said field or to cultivate the same. It is also clear from his evidence that there was difference in between the two brothers and even though this witness and others tried to settle the dispute but they failed.

PW 7, Krishna Paria, is the wife of PW 6. As per her evidence she went to market to sell her finished products and that she came to know after her return at 6 p.m. from her husband that the present accused/appellant had committed the murder of her mother, elder brother Anukul, boudi (Anukul''s wife), and niece (Anukul''s daughter) and the accused was handed over to the police. This witness made a statement before the Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C, but the said statement was practically not supported by this witness who was keen to protect her sole living brother. Thus, what we get from the evidence of PW 6 and PW 7 is that when PW 7 returned from the market she heard from her husband about which we have already stated. This portion of her evidence is hearsay in nature as PW 6 did not depose that he relayed the matter to his wife when she came. We are told by the learned Prosecutor that such statement is admissible in evidence as res gestae under Section 6 of the Evidence Act. But we do not subscribe to this view. That portion of her evidence cannot be said as res gestae as it is not matching with the illustration ''a'' given to Section 6 of the said Act. This statement cannot be said to have been made to form a part of the same transaction.

PW-8, Barun Kumar Mondal, is another villager of the victim Anukul Das and the present appellant. He practically did not depose anything worth discussion. This witness was declared hostile.

PW-9, Gopal Das Adhikary, is another villager and he was not at the place of occurrence at the material point of time. When he returned to his house he found a gathering in front of the house of Anukul and he saw the dead bodies of Anukul Das, his mother, his wife and his daughter. Thus, there is nothing worth discussion excepting the fact that on the last two to three days he did not see the wife and son of the accused appellant. This witness was also declared hostile.

PW-10, Raghabendu Ghosh, is the ASI of police who conducted the inquest on the four dead bodies in connection with Contai P.S UD case Nos. 15/14, 16/14, 17/14, 18/14 and he noted the injuries as he saw in the inquest reports. One thing is important in his evidence that such UD case was started at about 16:24 hours. On scrutiny of the inquest report and the evidence of this witness it appears that all the major victims got resisting wounds and all the victims were hit on the vital parts of their bodies and that too several times to be sure as to their death. On scrutiny of the inquest report and the post-mortem report it will appear that the three adult victims got resisting wounds and all of them received fatal injuries. The tiny girl also received such injuries which caused her instant death. It may be noted that before this first appellate court the murder is not in dispute and the defence counsel fairly submitted that such murders were ghastly.

PW-11, Bharat Chalak, is one constable who took the dead bodies to the hospital for post-mortem examination.

PW-12, Bidhan Chandra Sarkar, is the autopsy surgeon who has proved the four post-mortem reports. On scrutiny of his evidence it is clear that the said doctor gave emphasis on the vital wounds and naturally there was some omission while noting the injuries by this doctor vis-�-vis the inquest reports. It may be noted that the inquest report was done soon after the incident and that was done by PW-10 in open courtyard starting from 4:25 PM and the said ASI had better opportunities to see all the dead bodies more carefully. Be that as it may we are satisfied that all the victims received fatal injuries mainly on their parietal regions and that all the three major victims received resisting wounds.

PW-13, Durga Sankar Rana, is a Judicial Magistrate who recorded the statements of two witnesses that is PW-6 and PW-7 and naturally such witness is formal in nature.

PW-14, Tapas Kumar Das, is one SI of police who was posted at Contai Police Station and it is he who recorded the formal FIR.

PW-15, Subhojit Sarkar, is the investigating officer of this case. The main facet of his evidence is that he contradicted the PWs who were declared hostile by the prosecution. It is very unfortunate that in such a case where four persons received fatal injuries and that the accused was taken on police remand but this IO did not record the statement of the accused under Section 27 of the Evidence Act to make recovery of that chopper admissible in evidence.

On scrutiny of the evidence of the IO vis-�-vis the statements of PWs 6 & 7 this Court is satisfied that the accused was arrested at least before 6 PM and the arrest memo prepared by the IO is not matching with the time as supplied by those witnesses.

On perusal of the evidence on record and the circumstance we are satisfied that this case is based on circumstantial evidence and as such to prove the charge of murder the prosecution must prove a chain of circumstance and if the said chain is broken then the accused is entitled to an order of acquittal and if the chain remains intact then the accused will be roped in. Let us now consider what are the circumstances the prosecution has been able to prove as against the accused/appellant in respect of the charge of murdering four persons.

"1) That the victims were close relatives of the accused being the mother, elder brother, wife of the elder brother and their little daughter aged about three and half year.

2) That in that house named as "Urmila Bhawan" this accused used to reside with all the victims.

3) That the accused and his elder brother were on inimical terms as the victim Anukul got the service of his father after he retired voluntarily but even after that Anukul used to object to the cultivation of the agricultural land by the accused, which is a joint family property.

4) That after the marriage of the victim Anukul, the relationship became further strained.

5) That the appellant used to reside in that "Urmila Bhawan" as claimed by him in his 313 Cr.P.C and as per the evidence of PW 4 he saw the accused/appellant to go out of that house on 25.01.2014 by riding a motor cycle and at that time this PW 4 was taking his lunch and he heard hue and cry. We can take judicial notice of the fact that in villages lunch is taken at noon. The dictionary meaning of noon is midday. The argument of the defence that the victims did not raise any alarm at the time of this incident can safely be covered by the evidence of PW-4. The evidence of the other witnesses also reflect that the incident took place before 3 to 3.30 p.m. (vide PWs 2 & 5) or before 2 to 2.30 (Vide PW 1).

6) That the appellant was found in front of the house of PWs 6 and 7 between 4.30 and 5 p.m and we can fix the time at least one hour before that to be the time of the incident. That the distance between the village Mukundupur and Kharipukuria is 45 minutes run by motor cycle. From the evidence of PW-6 it is clear that the accused was seen riding the motor cycle of Anukul. Though this witness was declared hostile but we can accept his evidence to the extent he has supported the prosecution story.

7) That PW 6 duly identified the yellow ''genji'' or T-shirt and deposed that the appellant used to wear that ''genji'', which was marked as (Material Exhibit II). The said genji was forwarded to the F.S.L and as per report (Ext. 15) blood could be detected in that ''genji'' which was marked as "D" at the time of examination by the said department. The said report was however not challenged by the defence.

8) That the appellant tried to mislead the court in his examination under Section 313 Cr.P.C. by saying that he was not in his house at the time of the incident and at that time he was in his in-laws house but this accused had failed to prove this ''alibi'' as not a single witness came forward to say that the accused was not in his house but at the in-laws house at the time of the incident.

9) That the other ''alibi'' taken by the appellant that he left his house riding the motor cycle of his "bhagne". The said bhagne was neither named by the appellant nor he was produced before the court to be examined. The accused also did not face the dock after taking necessary permission under Section 315 of the Cr.P.C to say before the court as to the number of the said motor cycle and the name of the bhagne. Rather, the claim of the appellant has been negated by his brother-in-law (PW 6) who claimed that he (accused) used the motor cycle of Anukul to come to the house of PW 6.

10) That the conduct of the appellant is also to be considered. He claimed that he left his house even after he saw four strangers were quarrelling with his elder brother.

11) That the claim of the appellant that the murders were committed by those four strangers cannot be believed at all. Those miscreants may have some disputes with Anukul but why they will kill his wife, his mother or their little daughter. Except PW 1 none deposed about the bad character of the victim Anukul. We are not at all convinced with the case of the defence as to this.

12) That the appellant had the motive to kill the victims and his presence in that "Urmila Bhawan" at the material point of time is well established through the evidence of PW-1. It is true that motive is not everything in a murder trial and the presence of the accused at the place of the incident must also be proved.

13) That the victims raised hue and cry which attracted PW-1, a neighbour. We cannot say in the same tone with the defence that even though the accused was attacking the victim party but the victim did not raise any alarm.

14) That considering the relations of the victims it was not possible for them to come out of that house. We may illustrate it by saying that when the victim Anukul was attacked neither his wife nor his mother could leave the house. They wanted to save Anukul. Same was the picture when the wife of Anukul was assaulted. We can safely infer that the incident took place suddenly for which the appellant was aware but the victims were not. The victims had nothing in their hands to resist the appellant and they became easy prey in his hand.

15) That the appellant as per his claim shifted his family to his in-laws house three days before the incident. The motive behind this was two fold (a) that his wife may not come to resist him (b) that they may be out of the scene of the crime.

16) That at the time of the incident there was none in the house except those victims and this appellant and naturally under Section 106 of the Evidence Act the appellant ought to have disclosed how those four victims received so many injuries leading to their death.

17) That the claim of the accused that he came to Kharipukuria, that is the house of his elder sister and brother-in-law by bus, cannot be accepted as the accused did not produce any bus ticket and such bus ticket was not found in the pocket of his trousers or T-shirt. The accused was arrested in front of their house and the genji and trousers were both seized there."

That the accused appellant tried to mislead the court by taking the plea of ''alibi'' which he did not prove. This is an additional link in the chain of circumstance.

This court is satisfied as we have already told that this case is based on circumstantial evidence. In the instant case, Section 106 of the Evidence Act will certainly apply as it was only known to the accused how all these four persons were murdered in their house. The trial judge also relied upon Section 106 of the Evidence Act. The discussion so long made will certainly prove that this accused was very much there in ''Urmila Bhavan'' at the time of the incident and thereafter he fled away in the motor cycle of Anukul and naturally after committing such a crime as nothing has been proved positively by the defence that there was anyone in the house apart from the present appellant. We have already stated that the story that four persons came to that house only gets support from the 313 examination only. Except PW-1, (we repeat) none deposed regarding the ill character of the victim Anukul. It came out from the mouth of PW-1 only and that too in the cross-examination. It is true that the public witnesses including the sister and brother-in-law have not supported the prosecution story. The public witnesses have no axe to grind as against the accused/appellant as their family members were not attacked. The brother-in-law and the sister that is PWs 6 and 7 respectively fumbled as to whether they will support the prosecution story or go with the defence case when they were examined before the Trial Court. Thus, the court is to collect the grain from the chaff. What happened in that house was ''especially'' within the knowledge of the appellant and which he could have proved without difficulty or inconvenience. The fact which is pre-eminently or exceptionally within the knowledge of the accused/appellant ought to have been proved by the accused/appellant.

He took the plea of ''alibi'' at the stage when he was examined under Section 313 Cr.P.C that he was not at the place of occurrence at the time of the incident and that he left that house at about 11 to 11.30 a.m. We have already stated that in this case no DW was adduced by the appellant to establish the ''alibi'' that he was not in his house but he was at his in-laws house, where he went to deposit the motor cycle of his Bhagne at the time of the incident. Thus, the accused actually mislead the court. This is not a hypothetical illustration.

There is no iota of evidence that any other person came to that ''Urmila Bhawan'' on that date and time and committed the murder of so many persons. The inquest report and the post-mortem report of the victims will suggest that the accused was very much known to the victims otherwise the victim Anukul could have protested by some other weapons like Lathi etc. but the assailant took the victims by surprise and gave no opportunity to the victims to retaliate with weapons in self-defence, more so when the accused was armed with a sharp cutting weapon. This is not one hypothesis but a conclusion arrived by this court on scrutiny of the injuries noted in the PM reports and the inquest reports as because all the victims sustained sharp cut injuries which can be caused by a sharp cutting weapon only.

Thus, in view of the discussion so long made only one irresistible conclusion follows that it was this accused who committed the murders thereby finishing the entire family of Anukul. Now, the question is whether we will uphold the judgment of the learned Trial Court who has sentenced the accused to death or he deserves life sentence. We can rely upon the decision of the Apex Court as reported in , (2015) 6 SCC 652 (Purushottam Dasharath Borata and Anr. v. State of Maharashtra) a three judge bench decision of the Apex Court wherein the Hon''ble Apex Court held that death sentence is to be imposed in ''rarest of the rare cases'' that is when the accused would be menace or threat society or incapable of residing in harmony in society.

Here in the present case before us the accused is not a hard core criminal and the incident happened in spur of a moment and in the evidence it has come out that the accused was deprived of the Government service which his father gave to his elder brother, the victim Anukul, on his voluntary retirement and that he was also not allowed to cultivate the joint family property. Naturally this accused appellant was enraged with all these which were taking place every day. We are not supporting the act of the accused appellant but according to us it is very difficult to say that the incident which has been proved before the Trial Court cannot be said to be a ''rarest of rare cases''. This case is purely based on circumstantial evidence. It is true that all the chains of the circumstances have been duly proved. This court is satisfied that it was this accused who had the motive and chance to finish the family of Anukul and also to murder his mother. The appellant during his stay in the Correctional Home will think every day what he did on the date of the incident and that will be the real punishment for such an accused. Thus, we prefer to reduce the death sentence to that of imprisonment for life.

Thus, this court is satisfied that the murders of these four persons were committed by none else but by this accused as the entire chain about which we have stated is complete. Thus we have no hesitation in our mind that the accused appellant is guilty of the charge punishable under Section 302 of the IPC.

In a criminal trial sentencing is always a problem. The punishment must be commensurate to the crime of the appellant. The appellant is not a hard core criminal or a menace to society. Taking the risk of repetition we must consider how the appellant was passing his days in that house. The victim Anukul got the government service after his father took voluntary retirement and not only that the accused appellant was obstructing the cultivation being made by the appellant and naturally the appellant used to envy his elder brother. Considering the number of injuries which the victims sustained are enough to show how much anger was written the appellant towards the major victims and for which the appellant also did not spare the little child. It was sudden outburst of such anger. Endurance varies from person to person.

Considering all these we are hesitant in endorsing the death penalty as awarded by the Trial Court. The absolute irrevocability of the death penalty renders it completely incompatible to the slightest hesitation on the part of the court. The hangman''s noose is thus taken off the appellant''s neck.

We have not forgotten that in this case the life of four persons were lost due to the act of the accused and as such this act of the accused cannot be treated as a simple murder in which the convict is usually awarded a sentence of life imprisonment. In Bachan Singh v. State of Punjab , (1980) 2 SCC 684:1980 SCC (Cri) 580 the Apex Court recalled Paragraph 156 of the judgment as passed in Jagmohan Singh v. State of U.P. as reported in , (1973) 1 SCC Page 20 : 1973 SCC (Cri) 169 wherein the Apex Court relied the decision of the Jagmohan''s case while writing the judgment of Bachan Singh and in the judgment of Jagmohan the Apex Court observed, that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433A restricts the power of remission and commutation conferred on the appropriate government under Sections 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a maximum of 14 years.

A similar case like the present one before us went before the Apex Court (Prakash Dhawal Khairnar (Patil v. State of Maharashtra) as reported in , (2002) 2 SCC 35: 2002 SCC (Cri) 281 in that case the condemned appellant had committed the murder of his brother, their mother and four members of his brother''s family as because the deceased brother was not partitioning the property which the appellant claimed to be joint family property. In the totality of circumstances the Apex Court set aside the death sentence awarded to the appellant but directed that for the murders committed by the accused/convict, the accused/convict would suffer imprisonment for life and further that he would not be released from prison until he had serve out at least 20 years of imprisonment including the period already undergone by him. In this decision the Apex Court referred the decision of Sri Bhagwan v. State of Rajasthan , (2001) 6 SCC 296: 2001 SCC (Cri) 1095 and Dalbir Singh v. State of Punjab as reported in (2002) 6 SCC 606 :2002 SCC (Cri) 1466. In Bhagwan (supra) the Hon''ble Apex Court commuted the death sentence of the accused and awarded the sentence of imprisonment for life subject to the direction that he would not be released from the prison until he had served out at least 20 years of imprisonment including the period already undergone by him. In another case, that is, Ram Anup Singh v. State of Bihar , (2002) 6 SCC 686, the Apex Court also converted the death sentence of the accused in which he had committed murder of his father''s brother, the brother''s wife, his daughter and his son-in-law and converted the death sentence of the two sons of Ram Anup Singh that is Lallan Singh and Babban Singh (Appellant Nos. 2 and 3) and sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing the actual term of 20 years including the period of imprisonment already undergone by them.

We do not like to travel further to establish further this principle. Thus, considering every aspect and the legal position as enshrined in the cases referred above including Swamy Shraddananda (2) v. State of Karnataka as reported in , (2008) 13 SCC 767, we are of the opinion that the brutal and ghastly murders committed by the accused in which he finished the entire family of Anukul and their mother may be gruesome but the accused should not be sentenced to death.

The accused/appellant before this court must be awarded sentence of imprisonment for life with further condition that he would not be released from prison until he had served out at least 20 years of imprisonment including the period already undergone by him.

Thus, the death reference is answered in the negative and the judgment and finding of guilt by the learned Trial Court is accepted but the death sentence be reduced to rigorous imprisonment for life and further he would not be released from prison until he had served out at least 20 years of rigorous imprisonment including the period already undergone by him. The accused/convict will have to pay fine of Rs. 5000/- and in default the appellant will have to suffer further R.I for 3 months. Thus, the criminal appeal is answered in part in favour of the appellant.

There will be no order as to costs.

The seized articles be destroyed after the period of appeal is over.

The department is directed to transmit a copy of this judgment to the learned Trial Court forthwith along with the lower court records. The learned Trial Court will inform about the ordering portion to the Correctional Home Authority to rectify the jail warrant or he may issue fresh jail warrant.

Nadira Patherya, J.—75. I have gone through the judgment of Brother, Justice Chatterjee, I agree with the conclusion reached and also the reasons given by him, but would like to add the following -

"To confirm the death sentence would be the easiest thing for us to do but certain factors exist which warrant not confirming the death sentence. The first being that the deceased Anukul''s derogatory behaviour towards the appellant caused him to nurse feelings of frustration and anger towards the deceased and it is these pent up feelings which the accused gave vent to on the fated day. He is also not a menace or threat to society or incompatible with harmony in society or a person having any criminal tendency. The second is that the appellant has a family and in the event of him being sent to the gallows, his family members will be the worst sufferer. His father resides with his daughters. The third factor is that the appellant acted on provocation over a period of time and the offence committed cannot be described as carefully or meticulously pre-planned. Not sending him to the gallows is a greater punishment than sending him to the gallows."

The accused/appellant must be awarded sentence of imprisonment for life and further he would not be released from prison until he had served out at least 20 years of imprisonment under Section 302 of the I.P.C including the period already undergone by him. Apart from this substantive sentence the accused convict will have to pay fine of Rs. 5,000/- and in default the appellant will have to suffer further rigorous imprisonment for three months. It is hoped that the accused/appellant will make serious effort to reform himself during his stay in the Correctional Home by letting go feelings of hatred, jealousy, bitterness and enmity. If the accused/appellant leaves the Correctional Home with the virtues mentioned above, the order reducing the sentence by us will be justified.