Yerraguntla Nagaiah and anr. Vs. State, A.P. Hyderabad - Court Judgment

Excerpt:
criminal - murder - section 302 of indian penal code, 1860 and sections 209 (a), 313 and 366 of code of criminal procedure, 1973 - accused committed murder of his wife, son and daughter - convicted by sessions judge under section 302 - appeal against conviction - appellant was not habitual criminal - he committed second murder during his release on parole - this cannot be sole consideration for sentence of death - high court modified death sentence to imprisonment for life. - - 2 and 3. the trial court also failed to take into consideration that the accused was not at all in the village for more than two years. the accused failed to convince us how he is not responsible for causing the death of all the deceased. 2 by axing down two persons on the spot and thereafter killing 3 and injuring five others that by itself cannot be said to be an exceptional case!ordern.y. hanumanthappa 1. the accused in sessions case no.8 of 1997, which was pending on the file of the learned sessions judge, prakasam division at ongole, was tried for an offence punishable under section 302 of the indian penal code on the allegation that the accused had committed murder of yerragunlla vijaya, yerraguntla chaifanya and yerraguntla jhansi, who are no other than his wife, son and daughter respectively. 2. on evidence, the learned judge found the accused guilty of the charge punishable under section 302 of the indian penal code and, therefore, he was convicted and sentenced to suffer hanging till death subject to the confirmation by the high court. 3. aggrieved by the aforesaid order of conviction and sentence, the accused has preferred criminal appeal no.1424 of 1997. the learned sessions judge, prakasam has sent the referred proceedings of s.c. no.8 of 1997 for confirmation of death sentence imposed upon the appellant and, therefore, referred trial was numbered as rt.no. 2 of 1997. 4. since both the matters arise out of the order of conviction and sentence passed in sessions case no.8 of 1997 on the file of the district & sessions judge's court, prakasam division at ongole, with the consent of both the parties, they are being disposed of by the common judgment. 5. a few facts, which are necessary to dispose of these two cases arc as follows: the accused had married one yerraguntla vijay (the 1st deceased) and that he had two children, by name, chaitanya and jhans'i aged about 7 and 3 years respectively (2nd and 3rd deceased). the accused was in the habit of harassing the 1st deceased demanding her to get rs.20,000/- or one acre of land from her parents. the accused is also suspecting her fedility after the birth of the 2nd child and then the 1st deceased went to her parents house and informed about the ill-treatment. mediation took place at the instance of one abburi venkateswarlu (pw13) and parents of the 1st deceased and others. however, the accused did not change the attitude. the accused had not only suspected her fedility but he was waiting for a chance to kill her. on 25-6-1996 at mid-night, while the deceased were sleeping, the accused, with an intent to kill them, took an iron rod and beat all the deceased who were sleeping. due to multiple injuries and bleeding, the wife of the accused and the two children (i.e., deceased nos.1 to 3) died and before the 2nd deceased died, he raised alarm and the neighbours rushed to the spot and found the accused beating the 2nd deceased with iron rod and also found the dead bodies of first and third deceased. the neighbours also witnessed the accused while running away from the scene of offence. kilari pedda ahbai (pw11) and one gitndavarapu subba rao (lw. 14), found the accused running away from the scene of offence, and the accused made an extra judicial confession before them and requested them to give a lift. vankayalapati venkataswamy and vankayalapati ramanamma (parents of the deceased no.1) (pws.2 and lw3) came to know about the incident through mallela subba rao (pw12) and they immediately rushed to the village. pw1-m. pardhasaradhi rao, vao, santhanuthalapadu, on learning about the incident, went to the police station and gave a report which was registered as crime no.51 of 1996 and the concerned police took up further investigation and held inquest over the dead bodies and sent them for post-mortem examination. while the investigation was in progress, the accused was arrested on 30-6-1996 in the presence of pavuluri chiranjeevi and vamuri subba rao (pw14 and lw19 respectively) under a cover of mahazar and on his confession, the police recovered the iron rod. later, the dead bodies were sent for post-mortem examination and pws.8, 9 and 10 held post-mortem over the dead bodies of the deceased. after completion of the investigation, pw19 - inspector of police, ongole rural p.s. laid charge-sheet before the 111 additional munsif magistrate, ongole. the iii additional munsif magistrate numbered the charge-sheet as p.r.c.no.35 of 1996 and after going through the papers found the offences alleged are exclusively to be tried by the sessions court and, therefore, the iii additional munsif magistrate committed the case to the court of sessions under section 209 (a) of the criminal procedure code. on receipt of p.r.c. 35 of 1996 from the hi additional munsif magistrate, ongole, the learned sessions judge, ongole numbered the case as s.c.no.8 of 1997 on his file. after going through the record, the learned sessions judge framed the following charges: 'firstly; that on 25-6-1996 during the mid-night at 12-00 at his house in chandrapalem village did commit murder by intentionally causing the death of yerragttntla vijaya by beating her with an iron rod indiscriminately and thereby committed an offence punishable under section 302 of the indian penal code and within my cognizance. secondly: that on the same day at the same time, same place, did commit murder by intentionally causing the death of his son-yerraguntla chaitanya by beating her with an iron rod indiscriminately and that thereby committed an offence punishable under section 302 of the indian penal code and within my cognizance. thirdly: that on the same day, at the same time and same place did commit murder by intentionally causing the death of his daughter yermgwtla jhansi by beating her with an iron rod indiscriminately and that thereby committed an offence punishable under section 302 - of the indian penal code and within my cognizance.' when the same were read over and explained to the accused, the accused pleaded guilty. then, the trial court called upon the prosecution to adduce its evidence. 6. on prosecution side, 19 witnesses were examined as pws.l to 19 and exs. pi to 28 and mos.1 to 21 were marked. on defence side, no evidence was adduced. 7. when the accused was examined under section 313 of the criminal procedure code, he pleaded not guilty. 8. the trial court heard both sides. upon perusing the evidence, the trial court found that the prosecution proved its case and also came to the conclusion that the accused alone is responsible for causing the death of the deceased nos. 1 to 3. while convicting the accused for the offence under section 302 of the ipc, the trial court called upon the accused to make his statement with regard to the sentence to be imposed upon him. taking into consideration the gravity of the offence and the submission of the accused with regard to the sentence to be imposed on him, the learned trial judge held that it is a fit case where death sentence has to be imposed. 9. the accused was also heard as to why death sentence shall not be imposed on him. it was argued before the trial court that no special circumstances have been made out to impose death sentence on the accused and it is not a rarest of the rare cases where death sentence can be imposed even if the trial court came to the conclusion that the accused alone is responsible for causing the death of the deceased. however, the trial court after hearing both sides came to the conclusion that it is a rarest of the rare cases and ordered death sentence against the accused. 10. heard mr. r.k.suri for the appellant and mrs. suseela devi, the learned public prosecutor 11. the learned counsel for the appellant attacked the judgment of the court below both on sentence and on conviction. according to him, there arc no eye witnesses to the incident. the trial court relying on the evidence of interested witnesses, came to the conclusion that the prosecution proved the guilt of the accused. if the intention of the accused is to finish of the 1st deceased i.e., wife of the accused, he would have finished her only but not deceased nos.2 and 3. the trial court also failed to take into consideration that the accused was not at all in the village for more than two years. the learned counsel also submits that the evidence of prosecution witnesses is full of contradictions and inconsistencies. for the foregoing reasons, the learned counsel submits that the appeal be allowed and conviction ordered by the trial court be set aside, so also the death sentence ordered by the learned trial judge in s.c.no.8 of 1997 dated 7-10-1997 be set aside. 12. as an answer to these contentions, the learned public prosecutor submits that if the accused had not participated in the offence, there is no necessity for him to run away from the scene of offence and the trial court had rightly came to the conclusion that the accused alone is responsible for killing the 1st deceased and also his children i.e., 2nd and 3rd deceased, who are all innocent. she also pointed out that the confessional statement also goes against him. for the foregoing reasons, she submits that the trial court is justified in convicting the accused for the offence under section 302 of the indian penal code and the imposition of death sentence is quite just and proper. 13. we have gone through the judgment of the court below and also the entire evidence. pw1 is manchikalapati pardhasamdhi rao-the village administrative officer of santhanuthalapadu group of villages. on receipt of information about the offence, he passed the said information to the police in the form of ex.pl report. ex.p2 is the observation report of the scene of offence. pw.2 is one vankayalapati venkataswamy, before whom the accused made a confession that he murdered his wife and his children and later the accused ran away from the saidplace. pws.8 to 10 are the medical officers who conducted autopsy over the deceased 1, 3 and 2 respectively. the relevant documents are ex. p1-report of pw.1 to the station house officer, santhanuthalapadu police station; exs.p? to p9, the post-mortem certificates of deceased 1, 3 and 2 respectively, 14. we have perused the evidence and also the judgment of the court below. the accused failed to convince us how he is not responsible for causing the death of all the deceased. though, there are no actual direct witnesses to the incident, but the fact remains that the accused was coming out from his house with an iron rod in his hand. according to the prosecution, this can be connected to the accused and a conclusion can be reached that the accused alone is responsible but none else. even if we ignore the confessional statement, but in view of the injuries found on the dead bodies of the deceased corresponding to the injuries as shown in the post mortem reports, we have to hold that the accused alone is responsible for causing the death of all the deceased. the theory of demanding a further sum of rs.20,000/- or one acre of land from the parents of the 1st deceased, though alleged, not proved. 15. hence, the conviction ordered by the court below for the offence under section 302 of the indian penal code is just and proper one and no interference is required with regard to the conviction. 16. since the learned sessions judge passed death sentence on the accused, the learned sessions judge submitted the entire case record to the high court for confirmation of death sentence, as per section 366 of the criminal procedure code. on receipt of the entire record for confirmation of the death sentence, the high court mumbered the same as r.t.no. 2 of 1997. on receipt of such reference, the high court has got the jurisdiction either to order for re-trial or to dispense with the trial and make use of the evidence available. we do not find any ground to order for re-trial and hence we dispense with the trial. 17. now, the point for consideration is whether death sentence can be awarded against the accused in the facts and circumstances of the present case. 18. so far as the sentence is concerned, considering the above facts and circumstances, it is to be noted that there is no pre-mediation to commit the offence. there is no evidence showing that the incident is brutal and heinous in nature. 19. the supreme court of india, in shidagouda v. state of karnataka, 1981 crl. l.j. 324 while making reference to its earlier decision in bachan singh v. state of punjab, 1980 s.c. 898. held that the normal sentence for the offence of murder is life imprissonment and should be observed both in letter and in spirit. we had, therefore, to emphasise in that case that the death sentence should be imposed in very extreme cases.'' 20. while imposing the death sentence, the court shall take into consideration the conduct of the accused and his previous crime history etc. but, in the case on hand, the prosecution did not produce any evidence to show that the accused has committed any offences in the past, particularly, committing murders etc. i.e. the accused being a professional killer of desparate and dangerous character, living a life of crime by indulging in such maniac murders. the same view has been taken by a division bench of gujarat high court in rataniya bhima bhil v. state of gujarat, l997 crl. l.j. 891 wherein it is held, 'now in order to pass an order of capital punishment, mr. pardiwala is right that this court must reach a definite conculsion that the case at hand is one of the categories of that of the 'rarest of the rare case' as repeatedly emphasized by the supreme court. now it is indeed true that merely because five persons were done to death on the spot as a result of the action intitiated by the accused no.2 by axing down two persons on the spot and thereafter killing 3 and injuring five others that by itself cannot be said to be an exceptional case!! further, there is indeed nothing on the record to show that the accused no.2 had in any way any criminal antecedents of being professional killer, in other words, there is nothing on the record to show that he was a person of desperate and dangerous character, living on a life of crime by indulging in such maniac murders. no doubt, the accused no.2 has committed two murders setting the ball of vendetta rolling further on the spot, but that by itself, as stated above, does not bring the case within a special category of the 'rarest of the rare case' more particularly in view of the fact that the incident of five muders flared up unexpectedly. there was certainly no premeditation to commit five murders or injure others. in fact had indeed deceased party not gone to the house of accused in respect of the previous day incident, incident in question certainly would not have taken place at all. this indeed is one of the most important and saviour ground to save accused no.2 from gallows of death. further, the supreme court in its decision rendered in the case of machhisingh v. state of punjab, reported in : 1983crilj1457 has laid down guidelines in para nos.33 and 34 placing reliance upon its earlier decision in the case of bacchaming. bearing in mind these guidelines, in our opinion, no case for the enhancement of sentence is made out, and hence the suo main notice for the enhancement of the sentence against accused no.2 deserves to be dismissed.' the supreme court in krishna v. slate of haryana, : 1997crilj3180 , held as follows: 'undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration'. 21. now, coming to the sentence we find that the principle reason which weighed with the courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on parole. undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposing of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. taking an over all view of the attending facts and circumstances of the instant case, we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. 22. we, therefore, commute the sentence of death imposed upon the appellant for his conviction under section 302 ipc to imprisonment for life. 23. the appeal and the reffered trial arc accordingly disposed of.

Judgment:
ORDER

N.Y. Hanumanthappa

1. The accused in Sessions Case No.8 of 1997, which was pending on the file of the learned Sessions Judge, Prakasam Division at Ongole, was tried for an offence punishable under Section 302 of the Indian Penal Code on the allegation that the accused had committed murder of Yerragunlla Vijaya, Yerraguntla Chaifanya and Yerraguntla Jhansi, who are no other than his wife, son and daughter respectively.

2. On evidence, the learned Judge found the accused guilty of the charge punishable under Section 302 of the Indian Penal Code and, therefore, he was convicted and sentenced to suffer hanging till death subject to the confirmation by the High Court.

3. Aggrieved by the aforesaid order of conviction and sentence, the accused has preferred Criminal Appeal No.1424 of 1997. The learned Sessions Judge, Prakasam has sent the referred proceedings of S.C. No.8 of 1997 for confirmation of death sentence imposed upon the appellant and, therefore, referred trial was numbered as RT.No. 2 of 1997.

4. Since both the matters arise out of the order of conviction and sentence passed in Sessions Case No.8 of 1997 on the file of the District & Sessions Judge's Court, Prakasam Division at Ongole, with the consent of both the parties, they are being disposed of by the common judgment.

5. A few facts, which are necessary to dispose of these two cases arc as follows:

The accused had married one Yerraguntla Vijay (the 1st deceased) and that he had two children, by name, Chaitanya and Jhans'i aged about 7 and 3 years respectively (2nd and 3rd deceased). The accused was in the habit of harassing the 1st deceased demanding her to get Rs.20,000/- or one acre of land from her parents. The accused is also suspecting her fedility after the birth of the 2nd child and then the 1st deceased went to her parents house and informed about the ill-treatment. Mediation took place at the instance of one Abburi Venkateswarlu (PW13) and parents of the 1st deceased and others. However, the accused did not change the attitude. The accused had not only suspected her fedility but he was waiting for a chance to kill her. On 25-6-1996 at mid-night, while the deceased were sleeping, the accused, with an intent to kill them, took an iron rod and beat all the deceased who were sleeping. Due to multiple injuries and bleeding, the wife of the accused and the two children (i.e., deceased Nos.1 to 3) died and before the 2nd deceased died, he raised alarm and the neighbours rushed to the spot and found the accused beating the 2nd deceased with iron rod and also found the dead bodies of first and third deceased. The neighbours also witnessed the accused while running away from the scene of offence. Kilari Pedda Ahbai (PW11) and one Gitndavarapu Subba Rao (LW. 14), found the accused running away from the scene of offence, and the accused made an extra judicial confession before them and requested them to give a lift. Vankayalapati Venkataswamy and Vankayalapati Ramanamma (parents of the deceased No.1) (PWs.2 and LW3) came to know about the incident through Mallela Subba Rao (PW12) and they immediately rushed to the village. PW1-M. Pardhasaradhi Rao, VAO, Santhanuthalapadu, on learning about the incident, went to the police station and gave a report which was registered as Crime No.51 of 1996 and the concerned police took up further investigation and held inquest over the dead bodies and sent them for post-mortem examination. While the investigation was in progress, the accused was arrested on 30-6-1996 in the presence of Pavuluri Chiranjeevi and Vamuri Subba Rao (PW14 and LW19 respectively) under a cover of mahazar and on his confession, the police recovered the iron rod. Later, the dead bodies were sent for post-mortem examination and PWs.8, 9 and 10 held post-mortem over the dead bodies of the deceased. After completion of the investigation, PW19 - Inspector of Police, Ongole Rural P.S. laid charge-sheet before the 111 Additional Munsif Magistrate, Ongole. The III Additional Munsif Magistrate numbered the charge-sheet as P.R.C.No.35 of 1996 and after going through the papers found the offences alleged are exclusively to be tried by the Sessions Court and, therefore, the III Additional Munsif Magistrate committed the case to the Court of Sessions under Section 209 (a) of the Criminal Procedure Code. On receipt of P.R.C. 35 of 1996 from the HI Additional Munsif Magistrate, Ongole, the learned Sessions Judge, Ongole numbered the case as S.C.No.8 of 1997 on his file. After going through the record, the learned Sessions Judge framed the following charges:

'Firstly;

That on 25-6-1996 during the mid-night at 12-00 at his house in Chandrapalem Village did commit murder by intentionally causing the death of Yerragttntla Vijaya by beating her with an iron rod indiscriminately and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.

Secondly:

That on the same day at the same time, same place, did commit murder by intentionally causing the death of his son-Yerraguntla Chaitanya by beating her with an iron rod indiscriminately and that thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.

Thirdly:

That on the same day, at the same time and same place did commit murder by intentionally causing the death of his daughter Yermgwtla Jhansi by beating her with an iron rod indiscriminately and that thereby committed an offence punishable under Section 302 - of the Indian Penal Code and within my cognizance.'

When the same were read over and explained to the accused, the accused pleaded guilty. Then, the trial Court called upon the prosecution to adduce its evidence.

6. On prosecution side, 19 witnesses were examined as PWs.l to 19 and Exs. PI to 28 and MOs.1 to 21 were marked. On defence side, no evidence was adduced.

7. When the accused was examined under Section 313 of the Criminal Procedure Code, he pleaded not guilty.

8. The trial Court heard both sides. Upon perusing the evidence, the trial Court found that the prosecution proved its case and also came to the conclusion that the accused alone is responsible for causing the death of the deceased Nos. 1 to 3. While convicting the accused for the offence under Section 302 of the IPC, the trial Court called upon the accused to make his statement with regard to the sentence to be imposed upon him. Taking into consideration the gravity of the offence and the submission of the accused with regard to the sentence to be imposed on him, the learned trial Judge held that it is a fit case where death sentence has to be imposed.

9. The accused was also heard as to why death sentence shall not be imposed on him. It was argued before the trial Court that no special circumstances have been made out to impose death sentence on the accused and it is not a rarest of the rare cases where death sentence can be imposed even if the trial Court came to the conclusion that the accused alone is responsible for causing the death of the deceased. However, the trial Court after hearing both sides came to the conclusion that it is a rarest of the rare cases and ordered death sentence against the accused.

10. Heard Mr. R.K.Suri for the appellant and Mrs. Suseela Devi, the learned Public Prosecutor

11. The learned Counsel for the appellant attacked the judgment of the Court below both on sentence and on conviction. According to him, there arc no eye witnesses to the incident. The trial Court relying on the evidence of interested witnesses, came to the conclusion that the prosecution proved the guilt of the accused. If the intention of the accused is to finish of the 1st deceased i.e., wife of the accused, he would have finished her only but not deceased Nos.2 and 3. The trial Court also failed to take into consideration that the accused was not at all in the village for more than two years. The learned Counsel also submits that the evidence of prosecution witnesses is full of contradictions and inconsistencies. For the foregoing reasons, the learned Counsel submits that the appeal be allowed and conviction ordered by the trial Court be set aside, so also the death sentence ordered by the learned trial Judge in S.C.No.8 of 1997 dated 7-10-1997 be set aside.

12. As an answer to these contentions, the learned public prosecutor submits that if the accused had not participated in the offence, there is no necessity for him to run away from the scene of offence and the trial court had rightly came to the conclusion that the accused alone is responsible for killing the 1st deceased and also his children i.e., 2nd and 3rd deceased, who are all innocent. She also pointed out that the confessional statement also goes against him. For the foregoing reasons, she submits that the trial Court is justified in convicting the accused for the offence under Section 302 of the Indian Penal Code and the imposition of death sentence is quite just and proper.

13. We have gone through the judgment of the Court below and also the entire evidence. PW1 is Manchikalapati Pardhasamdhi Rao-the Village Administrative Officer of Santhanuthalapadu group of villages. On receipt of information about the offence, he passed the said information to the police in the form of Ex.Pl report. Ex.P2 is the observation report of the scene of offence. PW.2 is one Vankayalapati Venkataswamy, before whom the accused made a confession that he murdered his wife and his children and later the accused ran away from the saidplace. PWs.8 to 10 are the Medical Officers who conducted autopsy over the deceased 1, 3 and 2 respectively. The relevant documents are Ex. P1-report of PW.1 to the Station House Officer, Santhanuthalapadu Police Station; Exs.P? to P9, the post-mortem certificates of Deceased 1, 3 and 2 respectively,

14. We have perused the evidence and also the judgment of the Court below. The accused failed to convince us how he is not responsible for causing the death of all the deceased. Though, there are no actual direct witnesses to the incident, but the fact remains that the accused was coming out from his house with an iron rod in his hand. According to the prosecution, this can be connected to the accused and a conclusion can be reached that the accused alone is responsible but none else. Even if we ignore the confessional statement, but in view of the injuries found on the dead bodies of the deceased corresponding to the injuries as shown in the post mortem reports, we have to hold that the accused alone is responsible for causing the death of all the deceased. The theory of demanding a further sum of Rs.20,000/- or one acre of land from the parents of the 1st deceased, though alleged, not proved.

15. Hence, the conviction ordered by the Court below for the offence under Section 302 of the Indian Penal Code is just and proper one and no interference is required with regard to the conviction.

16. Since the learned Sessions Judge passed death sentence on the accused, the learned Sessions Judge submitted the entire case record to the High Court for confirmation of death sentence, as per Section 366 of the Criminal Procedure Code. On receipt of the entire record for confirmation of the death sentence, the High Court mumbered the same as R.T.No. 2 of 1997. On receipt of such reference, the High Court has got the jurisdiction either to order for re-trial or to dispense with the trial and make use of the evidence available. We do not find any ground to order for re-trial and hence we dispense with the trial.

17. Now, the point for consideration is whether death sentence can be awarded against the accused in the facts and circumstances of the present case.

18. So far as the sentence is concerned, considering the above facts and circumstances, it is to be noted that there is no pre-mediation to commit the offence. There is no evidence showing that the incident is brutal and heinous in nature.

19. The Supreme Court of India, in Shidagouda v. State of Karnataka, 1981 Crl. L.J. 324 while making reference to its earlier decision in Bachan Singh v. State of Punjab, 1980 S.C. 898. held that the normal sentence for the offence of murder is life imprissonment and should be observed both in letter and in spirit. We had, therefore, to emphasise in that case that the death sentence should be imposed in very extreme cases.''

20. While imposing the death sentence, the Court shall take into consideration the conduct of the accused and his previous crime history etc. But, in the case on hand, the prosecution did not produce any evidence to show that the accused has committed any offences in the past, particularly, committing murders etc. i.e. the accused being a professional killer of desparate and dangerous character, living a life of crime by indulging in such maniac murders. The same view has been taken by a Division Bench of Gujarat High Court in Rataniya Bhima Bhil v. State of Gujarat, l997 Crl. L.J. 891 wherein it is held,

'Now in order to pass an order of capital punishment, Mr. Pardiwala is right that this Court must reach a definite conculsion that the case at hand is one of the categories of that of the 'rarest of the rare case' as repeatedly emphasized by the Supreme Court. Now it is indeed true that merely because five persons were done to death on the spot as a result of the action intitiated by the accused No.2 by axing down two persons on the spot and thereafter killing 3 and injuring five others that by itself cannot be said to be an exceptional case!! Further, there is indeed nothing on the record to show that the accused No.2 had in any way any criminal antecedents of being professional killer, in other words, there is nothing on the record to show that he was a person of desperate and dangerous character, living on a life of crime by indulging in such maniac murders. No doubt, the accused No.2 has committed two murders setting the ball of vendetta rolling further on the spot, but that by itself, as stated above, does not bring the case within a special category of the 'Rarest of the rare case' more particularly in view of the fact that the incident of five muders flared up unexpectedly. There was certainly no premeditation to commit five murders or injure others. In fact had indeed deceased party not gone to the house of accused in respect of the previous day incident, incident in question certainly would not have taken place at all. This indeed is one of the most important and saviour ground to save accused No.2 from gallows of death. Further, the Supreme Court in its decision rendered in the case of Machhisingh v. State of Punjab, reported in : 1983CriLJ1457 has laid down guidelines in para Nos.33 and 34 placing reliance upon its earlier decision in the case of Bacchaming. Bearing in mind these guidelines, in our opinion, no case for the enhancement of sentence is made out, and hence the suo main notice for the enhancement of the sentence against accused No.2 deserves to be dismissed.'

The Supreme Court in Krishna v. Slate of Haryana, : 1997CriLJ3180 , held as follows:

'Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration'.

21. Now, coming to the sentence we find that the principle reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on parole. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposing of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an over all view of the attending facts and circumstances of the instant case, we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death.

22. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under Section 302 IPC to imprisonment for life.

23. The Appeal and the Reffered Trial arc accordingly disposed of.