Ram Manohar, Vs. State - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]b.c. kandpal, j.1. since all the above four appeals arise out of the same judgment and order and similar question of fact of law is involved, they are being decided by this common judgment.2. all the appeals arise out against the common judgment and order 13.5.2004 passed by additional sessions judge/f.t.c.vi dehradun, in sessions trial no. 33 of 2003 state v. ramesh and ors. whereby the learned sessions judge convicted accused/appellants ramesh, ram manohar and jai chandra under sections 396, 412, 201 i.p.c. the sessions judge while convicting the said accused/appellants under section 396 i.p.c. sentenced them to undergo life imprisonment and fine of rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. the sessions judge while convicting the said accused/appellants under section 412 i.p.c. sentenced them to undergo rigorous imprisonment for ten years and fine of rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. the sessions judge while convicting the said accused/appellants under section 201 i.p.c. sentenced them to undergo rigorous imprisonment for three years and fine of rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. all the sentences were directed to be run concurrently.3. accused/appellants ram manohar and jai chandra have preferred criminal jail appeal no. 248/2004 and criminal jail appeal no. 316/2004 respectively through jail, accused/appellant ramesh has preferred criminal appeal no. 70/2005, while state has preferred government appeal no. 117/2005 for enhancement of sentence.4. prosecution story in brief is that on 25.11.2002 complainant saroj bala lodged a report at p.s. kotwali to this effect that on 25.11.2002 at 1.00 p.m. when she reached to the house of her brother mukesh kumar resident of 26, arhat bazar, she came to know that shop of his brother was closed since previous friday. the complainant asked surendra about the whereabouts of mukesh, he told that he had seen her brother along with his family going in a marriage ceremony on sunday at 8.00 p.m. the complainant also enquired from other persons and accompanied her brothers raj kumar and anil kumar from her aunt's house. then she took the key of shop from porter ashapal and after opening the lock they entered into the shop where bad smell was coming out. on search, dead bodies of her brother mukesh kumar, brother's wife nilam and their two children siddarth and yash were found lying in decomposed condition in the backside room and household items were found scattering. on enquiry it came to know that two porters whose names were phoolchand s/o dujjan and viddan s/o unknown residents of seervai p.s. hussainganj, district fatehpur, were also missing for the same day and it is sure that they along with others committed robbery in the house and committed murder of her brother, bhabhi and children. the f.i.r. of the said incident was lodged on 25.11.2002 at 3.20 p.m. under section 302/394 at police station, which was registered as case crime no. 752/2002. the autopsy on the dead body of the deceased persons was conducted on 26.11.2002 at district hospital, dehradun. during investigation accused ramesh, ram manohar and jai chandra were arrested and looted cash and jewellary were recovered from their possession. from the possession of accused ramesh, six silver coins, out of them five coins were having impression of laxmi ganesh at one side and one coin was having impression of adverd vii at one side; two golden rings, on of them was having 2.6 gms. weight and costing to rs. 1200/-, while another ring was having 3.0 gms. weight and costing to rs. 1500/-, were recovered and recovery memo was prepared vide ext.ka.29. further, from the possession of the accused ram manohar, four golden bangles weighing 13 gms each, three golden bangles weighing 11 gms and costing to rs. 45000/- for all the seven bangles, two silver rings weighing 3.3 gms each and costing to rs. 200/- each, six silver coins costing to rs. 600/- each, rs. 14,000/- in cash having 11 five-hundred currency notes and 85 one-hundred currency note, were recovered and its recovery memo was prepared vide ext.ka.30. further, from the possession of accused jai chandra, rs. 14500/- in cash having 28 five-hundred currency notes, 1 one-hundred currency note, 7 twenty-rupee currency notes, 26 ten-rupee currency notes, one golden ring, one artificial ring, one mangalsutra costing to rs. 17000/-, were recovered and its recovery memo was prepared vide ext.ka.31. the police also took in his possession four glass and half bottle containing liquor, the finger impression over these articles were got examined by finger print laboratory, crime investigation department, lucknow, u.p. accused ramesh, ram manohar and jai chandra were arrested, but rest of two accused phoolchand and viddan could not be arrested by the police. after completing all the requisite formalities of the investigation, charge sheets were submitted against accused ramesh, ram manohar and jai chandra under sections 396/412 and 201 i.p.c. and charge sheets were submitted against accused phoolchand and viddan on their absconding under the same sections.5. after submission of the charge sheet the appellants were committed to the court of sessions and learned sessions judge framed the charge under sections 396,412 and 201 i.p.c. against accused jai chandra, ramesh and ram manohar. the charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.6. the prosecution in support of its case got examined as many as eighteen witnesses, namely, pw-1 saroj bala, pw-2 dr. n.s. tomar, pw-3 s.i. anand lal, pw-4 constable heera lal, pw-5 raj kumar gupta, pw-6 mahesh chandra, pw-7 raj kishore gupta, pw-8 bishan singh bisht, pw-9 constable sher singh, pw-10 surendra yadav, pw-11 constable gulab singh, pw-12 constable virendra singh, pw-13 s.i. vinod kumar sharma, pw-14 ravindra kumar bisht, pw-15 virendra kumar sharma, pw-16 yogesh chandra, pw-17 i.o. arun kumar pandey and pw-18 constable bal krishna.7. the accused persons in their statements under section 313 cr.p.c. denied the prosecution case and alleged that they have been falsely implicated in the case. accused ramesh took plea of alibi and alleged that on the date of incident he was admitted in kanpur hospital and he has been falsely implicated. accused ram manohar alleged that he was working in the house of radhey shyam and he used to keep his wife with him and after finishing his work he used to return to his house in the evening at 5.00 p.m. and thereafter he did not go anywhere. he further alleged that he has been falsely implicated. in defence, accused jai chandra got examined shivanand gupta as dw-1 and accused ramesh got examined himself as dw-2 under section 315 cr.p.c.8. the trial court having considered the entire evidence on record and hearing learned counsel for the parties found guilty accused ramesh, ram manohar, jai chandra of charges of offence punishable under sections 396, 412, 201 i.p.c. and convicted and sentenced them as mentioned above, vide impugned judgment and order dated 13.5.2004.9. feeling aggrieved, accused/appellants ram manohar and jai chandra have preferred criminal jail appeal no. 248/2004 and criminal jail appeal no. 316/2004 respectively through jail, accused/appellant ramesh has preferred criminal appeal no. 70/2005, while state has preferred government appeal no. 117/2005 for enhancement of sentence, which have been placed before us for disposal.10. we have heard sri ajay singh bisht, learned amicus curiae for appellants-ram manohar and jai chandra in crja no. 248/2004 and 316/2004, sri sandeep tandon, advocate for appellant-ramesh in crla no. 70/2005, sri nandan arya, a.g.a. for the state and perused the record.11. before further discussion, it is pertinent to mention here that post mortem examination on the dead body of all the deceased namely master yash gupta, mukesh gupta, neelam gupta and siddartha gupta was conducted on 26.11.2002 by dr. n.s. tomar (pw-2). this witness while conducting autopsy on the dead body of deceased found whole body and face bloated, eyes bulging, tongue protruding out side from mouth. he further found that abdomen distended and greenish colour present all over the body and loosing of hairs and nails. this witness also opined that there was fracture on thyroid cartilage and hyoid bone on the dead body of the deceased. this witness (pw-2), at the end of post-mortem examination, opined that cause of death is asphyxia due to ante mortem strangulation. he further opined that death of the deceased could have been taken place in the intervening night of 21/22.11.2002 at about 11.00 a.m.12. the statement of pw-2 dr. n.s. tomar, read with autopsy reports (ext.ka.7 to ext.ka.10), clearly establishes on record that death of all the four deceased was caused due to strangulation. it also establishes on record that dead body of the deceased remained lying in bag for 4-5 days which started decomposing.13. it is pertinent to mention here that it is a case of circumstantial evidence as no eyewitness of occurrence is there in the present case. now, it is to be seen whether the prosecution has established the chain of circumstances leading to only one conclusion that the accused/appellants committed robbery and thereafter committed murder of all the four deceased and concealed their dead body.14. the first circumstance is the last seen evidence of accused in the company of the deceased on the date of incident. on this point, the prosecution has examined pw-5 raj kumar gupta, who has stated in his evidence that on the date of incident he had gone to the shop of mukesh. when he left the place by turning in the street, he saw electric light running in outside and inside of the shop of mukesh. this witness has also stated that porters phool chandra, viddan, ramesh, ram manohar and jai chandra were sitting in the shop. accused phoolchandra, viddan and ramesh permanently used to work as porter in the shop of mukesh, while ram manohar and jai chandra used to come on some occasion. this witness also identified accused ramesh, jai chandra and ram monohar in the court and stated that all the three accused were present at the place of incident at the same time.15. the above testimony of pw-5 raj kumar gupta is also corroborated from the evidence of pw-6 mahesh chandra. this witness has specifically stated that on 21.11.2002 he got information about the illness of his mother-in-law, who was residing with his sister-in-law saroj bala at rajpur road, dehradun, hence he started from delhi on his own car in the night to the place of her mother-in-law. at 11.00 p.m. when was passing through the shop of mukesh, then he saw that phoolchand and viddan were sitting near the shop. they told him that that mukesh along with his family had gone to gurgaon to attend the marriage ceremony of his cousin and they were watching the shop. this witness has further stated that a porter was in drunken state and he was crying. his companion was making to understand him. at that time accused jai chandra, ram manohar and ramesh were also present over there. this witness has further stated that as his mother-in-law was seriously ill, he did not go to the house of mukesh. in this way, the witnesses i.e. pw-5 and pw-6 had seen the accused persons at the spot in the night of the incident. therefore, the prosecution has been successful in establishing the circumstance of last seen of the accused persons at the spot.16. the next circumstance which has been relied by the prosecution is the recovery of looted articles from the possession of the accused persons. the prosecution case is that from the possession of accused ramesh, six silver coins, out of them five coins were having impression of laxmi ganesh at one side and one coin was having impression of adverd vii at one side; two golden rings, on of them was having 2.6 gms. weight and costing to rs. 1200/-, while another ring was having 3.0 gms. weight and costing to rs. 1500/-, were recovered and recovery memo was prepared vide ext.ka.29. further, from the possession of the accused ram manohar, four golden bangles weighing 13 gms each, three golden bangles weighing 11 gms and costing to rs. 45000/- for all the seven bangles, two silver rings weighing 3.3 gms each and costing to rs. 200/- each, six silver coins costing to rs. 600/- each, rs. 14,000/- in cash having 11 five-hundred currency notes and 85 one-hundred currency note, were recovered and its recovery memo was prepared vide ext.ka.30. further, from the possession of accused jai chandra, rs. 14500/- in cash having 28 five-hundred currency notes, 1 one-hundred currency note, 7 twenty-rupee currency notes, 26 ten-rupee currency notes, one golden ring, one artificial ring, one mangalsutra costing to rs. 17000/-, were recovered and its recovery memo was prepared vide ext.ka.31. on this point, the prosecution has examined pw-6 mahesh chand. this witness has stated that on 1.12.2002 accused/appellants were arrested by the police from saharanpur chowk in qualis vehicle. he has further stated that accused persons confessed their guilt in his presence and the police got recovered the looted articles at the instance of the accused persons. this witness has identified his signature on the recovery memos (ext.ka.29 to ext.ka.31). the looted articles were also identified by pw-1 saroj bala when the same was put to her by the police. therefore, from the evidence of pw-6 coupled with the evidence of pw-13 s.s.i. vinod kumar sharma and recovery memos (ext.ka.29 to ext.ka.31), it is amply proved that the looted articles have been recovered from the possession of the accused persons on their pointing out. hence, this circumstance stands proved by the prosecution beyond any reasonable doubt.17. another circumstance against the accused persons which connect them to the commission of the crime is the comparison of their finger prints by the finger print expert, who has submitted his report (ext.ka.45 and ext.ka.46). the director, finger print laboratory, lucknow, has reported vide ext.ka.46 that finger prints examined by him on the articles sent by the prosecution for comparison were found to be same from the sample finger prints sent to him. the prosecution case is that items containing four glasses, half bottle of wine were sent to the finger print expert. these articles were recovered from the place where the accused/appellants were seen by pw-6 mahesh chand sitting in the night of incident. in the report of finger print expert, disputed finger prints are shown as ext.224 to ext.227, while sample finger prints are shown as number 2944 to 2973. the finger print expert examined these finger prints with the help of scientific instruments and all the disputed finger prints have been found similar to sample finger prints.18. therefore, the above chain of circumstances, brought on record, clearly establishes charges of offence punishable under sections 396, 412, 201 i.p.c. against accused/appellants ramesh, ram manohar and jai chandra that they committed robbery and thereafter committed murder of all the four deceased and concealed their dead body. therefore, we concur with the finding of the trial court that the prosecution has been successful in proving the charge against the accused/appellants ramesh, ram manohar and jai chandra beyond any reasonable doubt.19. for the reasons as discussed above, crja 248/2004, crla 70/2005 and 316/2004 filed by accused-appellants ram manohar, ramesh and jai chandra respectively, are devoid of any merit and are liable to be dismissed.20. as far as government appeal no. 117 of 2005 is concerned, the same has been filed by the state on the question of sentence. learned a.g.a. for the state has submitted that it is a case of brutal murder as the entire family of the deceased was murdered by the accused. he has further submitted that accused have created the panic in the society. under these circumstances, the sentenced of life imprisonment awarded by the trial court is inadequate and death sentence should be imposed upon the accused instead of life imprisonment.21. while considering the aforesaid submission raised by the learned a.g.a. for the state, we think that it would be just and proper to keep in mind the certain guidelines propounded by the hon'ble apex court by way of various judgments.22. the hon'ble apex court in the case of jagdish yadav v. state of bihar reported in : (1999) 9 scc 99 has observed as under:6. the only other circumstance that now remains to be considered is that he had killed dhaneshwar by firing a shot at him. we have gone through the evidence of pws 2, 3, 4 and 5 who have deposed about the same. they have stated that jagdish had fired the shot which killed dhaneshwar. the evidence as to why jagdish fired that shot and under which circumstances that shot was fired is not consistent. their versions differ. though it stands proved that the appellant killed dhaneshwar, it cannot be said that this case is a rarest of rare case. the facts and circumstances of the case do not justify such an inference. we, therefore, allow this appeal, set aside the sentence of death imposed upon the appellant and reduce the death sentence to imprisonment for life. the appeal is allowed to that extent only.23. further, the hon'ble apex court in the case of simon and ors. v. state of karnataka reported in : (2004) 2 scc 694 has observed as under:21. true, the grant of life imprisonment is the rule and death penalty an exception in the rarest of rare cases by stating 'special reasons' for awarding it but, at the same time, it is also true that the punishment awarded must be commensurate with the crime committed by the accused. it is also true that ordinarily the sentence is not enhanced by the appellate court unless it is such a gross case that nothing but maximum sentence stipulated in law deserves to be awarded.24. apart from the aforesaid case (supra), the hon'ble apex court in the case of machhi singh v. state of punjab reported in : (1983) 3 scc 470 has observed that 'one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. the community may entertain such a sentiment when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. further, when the crime is enormous in proportion. for instance, when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed. it was observed that in order to apply the guidelines, inter alia, the following questions may be asked and answered:(a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?(b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?the court further said:40. if upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.25. the hon'ble apex court in the case of swamy shraddananda v. state of karnataka reported in (2007) 12 scc 288 has observed as under:50. abolition of death penalty is not being and, in fact, cannot be advocated, but what requires serious consideration is as to whether the jurisdiction should not be invoked unless there exists an extraordinary situation to find that it comes within the purview of 'the rarest of rare' cases. the approach of the courts should not be to confine its thought process to the identification of a 'rare' case. the expression 'the rarest of the rare' case has been evolved by a constitution bench of this court and, thus, demands a meaningful application.26. further, the hon'ble apex court in the case of ramasubramanian v. state of kerala reported in (2007) 12 scc 801 has observed as under:12. the appellant was sentenced to death and the counsel for the state submitted that the crime was cruel in nature and the appellant killed the three innocent children along with their mother and he deserves the death penalty, whereas the counsel for the appellant submitted that the prosecution could not adduce the best evidence and even if he is found guilty, his sentence is liable to be commuted to life imprisonment.13. the counsel for the state relied on the decisions of this court in praveen kumar v. state of karnataka; gurdev singh v. state of punjab and state of rajasthan v. kheraj ram in this connection. it is true that the crime committed by the appellant is cruel and dastardly in nature and the appellant deserves no mercy. however, it may be noted that it is not known how and under what circumstances the incident had taken place on 9-8-1999. the appellant was annoyed by the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. taking the overall facts into consideration, we do not find that this is one of the rarest of rare cases where death sentence could be the only punishment. therefore, the sentence of death imposed on the appellant is commuted to life imprisonment. to that extent, the appeal is allowed. however, his conviction and sentence as regards on all other counts are maintained.27. the hon'ble apex court in the case of bachittar singh v. state of punjab reported in : (2002) 8 scc 125 has observed as under:22. this takes us to consider the death penalty awarded by the trial court and confirmed by the high court. it is contended by the learned counsel for the appellants that the case does not fall within the category of 'rarest of rare' cases which would invite capital punishment. on a perusal of the evidence and materials on record, we find that apart from the solitary incident in question, there is no evidence on record either oral or documentary, which would suggest about the misconduct of the appellants in the past. there is also no evidence on record to suggest that the appellants would be a menace and threat to the harmonious and peaceful coexistence of the society. in a case, that appears to be similar with the present one, prakash dhawal khairnar (patil) v. state of maharashtra the accused had done to death his own brother, brother's wife and children out of a land dispute. this court held that no doubt the crime was heinous and brutal but at the same time it would be difficult to hold that it is rarest of rare case. the court was also of the view that it would be difficult to hold that the appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continued threat to the society. the same principle has been followed by this court in ram anup singh v. state of bihar. in the case in hand also, we are of the view that having regard to the absence of evidence to the contrary that the appellants are a menace to the society threatening the peaceful and harmonious coexistence of the society and they are likely to be a continuous threat to the society if once they come out of incarceration, no doubt the crime was committed in a heinous and brutal manner but viewed from the facts and circumstances, as noticed above, it would be difficult to hold that the case falls within the category of 'rarest of rare' cases. at the same time, there is no reason to believe that they cannot be reformed or rehabilitated. viewed from the aforesaid perspective, we are of the opinion that the appellants must be given a chance to repent that what they have done is neither approved by the law nor by the society and be reformed or rehabilitated and become good and law-abiding citizens.23. in the facts and circumstances of the case, as stated above, we would think that sentencing them to rigorous imprisonment for life would meet the ends of justice.28. in the light of the aforesaid observations made by the hon'ble apex court, we have considered the aspect of this case whether this case can be brought within the ambit of 'rarest of rare case' or not. while dealing with the instant case we are of the view that this case rests on circumstantial evidence. the important circumstances which lead to an inference pertaining to the guilt of the accused/appellants are the evidence of last seen; recovery of looted articles from the possession of accused/appellants; and finger print evidence. however, there is no evidence available on record that this case has shocked the collective conscience of the community which may suggest the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.29. in the instant case we do not find anything uncommon which may suggest that sentence of life imprisonment awarded by the trial court appears to be inadequate and this sentence calls for death sentence. the circumstances of this case also do not suggest that the crime is of such nature that there is no alternative but to impose death sentence. we are, therefore, of the view that the sentence awarded by the trial court appears to be justified and this case does not fall within the ambit of 'rarest of rare case'.30. for the reasons stated above, government appeal no. 117/2005 filed by the state for enhancement of sentence, fails and is liable to be dismissed.31. accordingly, all the four appeals are dismissed. the impugned judgment and order dated 13.5.2004 is hereby confirmed.32. let a copy of this judgment be placed in the files of crla no. 70/2005, ga no. 117/2005 and crja no. 316/2004.