The judgment of the court was delivered by

D.P Singh, J.:— The convict Ajay Kumar Pat has been sentenced to be hanged till death for causing death of five persons under Section 302 IPC by the Judgment of conviction and Order of sentence dated, 5th April, 2007 and 9th April, 2007 respectively by 7th Additional Judicial Commissioner cum Special Judge, CBI, under Sections 302/326/436/201 IPC. The reference for confirmation of sentence and conviction made by the Trial Court under Section 366 Cr. PC has been received by the Registry on 12th April, 2007. the convict has further filed an appeal under Section 374(2) Cr.PC from the jail, which has been registered as Cr. Appeal No. 403/2007. Since, both the matters arise out of the same Order of conviction and Judgment dated, 5th April, 2007 and 9th April, 2007, both have been taken up together and are being disposed of by this common Judgment.

2. The factual matrix leading to the reference and appeal are that in the morning of 2nd June, 2003 the residents of Gandhi Vihar situated behind Sai Hospital, Bariyatu road Ranchi, woke up to find that the house of Sri Dhirendra Kumar, a serving Indian Forest Officer, was under fire and smokes coming out. Neighbours Including P.W 1, 2, 3, 7, 8 and 9 rushed to the house to find that the outer gate locked. Two of the Mohalla people jumped over the compound wall and broke open the lock of the gate. Thereafter, they rushed to find out how the fire has broken. In the meantime someone informed the fire brigade and to the informant Sanjiv Kumar, P.W 10, brother in-law of said Dhirendra Kumar on telephone. The Informant, residing at Ratu Road Ranchi, rushed to the house alongwith his parents to find that Mohaila people were trying to extinguish the fire with the help of fire brigade after breaking the glasses of front door etc. In the meantime Mohalla people went behind the house (in search of) to fetch water from the well situated, in the campus and found the convict Ajay Pal hiding himself inside the well. The convict was taken out of the well and sent for medical examination at Sai hospital. The informant along with others entered inside the house to find five dead bodies burnt severely. According to them the dead body of Amita Sinha @ Rubi, Ankita @ Anmol and Ayan @ Golu, daughter and son of sister of Amita Sinha was lying in the bed room. They further found the dead body of Harshit, son of P.W 11 and one Kauleshwar @ Kittu servant of the house with injuries on their persons outside the bed room in the dining hall. All of the five bodies had ante mortem injuries caused by hard and blunt substance on them. Then Police arrived at the PO after receiving information at about 7 AM and recorded the statement of P.W 10, Sanjiv Kumar. According to P.W 10, on receiving telephonic message he rushed to the PO to find the deadly and ghastly scene at the house where he found his sister Amita along with her son Harshit and two issues of another sister, Anmol and Golu along with servant Kitu dead. He learnt regarding the incident from others present from before on the spot. He further stated that the convict Ajay Pal was taken out from the well by the neighbours and sent to Sai hospital for his medical care. He expressed serious doubts that the incident has been effected by the convict who was the only adult male present in the house. Later on Ajay Pal was handed over to the Police, who recorded the statement of the convict in which he allegedly confessed his involvement in the crime. The Police started investigation after registering Bariatu P.S Case No. 86/2003 under Sections 302/201/436/34 IPC. P.W 11 informed on telephone, rushed back from Bangalore to arrive at Ranchi on 3rd June, 2003. He was also examined along with other witnesses by the Police. The Police further seized burnt objects from the house and campus on the basis of statement of the convict on 3rd and 8th June, 2003. The key bunch and the locks used to close the grill connecting the servant's quarter with the main house were recovered from the well as pointed out by the convict. The house was inspected by the forensic experts from Calcutta to ascertain the cause of fire and inflammable used in causing the fire. The Police further seized food items preserved in the fridge and from dining table and sent them for forensic examination. During course of investigation the Police found that the food items sent for forensic examination, contained some pesticide namely Themed which causes unconsciousness and even death. Thereafter, Police, on the basis of investigation and other circumstances, submitted chargesheet against the convict. The learned CJM took cognizance in the case and committed it to the Court of sessions for trial. When the case was pending for trial the State government requested the CBI for further investigation, which was accepted and notified vide Notification No. 228/101/2003 DS CE dated, 21st January, 2004. The CBI took up the investigation, examined witnesses and sent the convict for narco analysis, brain electrical activation test and finger print examinations at the National. Institute of Medical and Neuro Science, Gandhi Nagar, Gujrat. Appellant Ajay was put to such tests between 23rd to 26th April, 2004. According to CBI the test conducted by independent body supported the prosecution case that Ajay Pal has committed the crime and caused death of five persons. Accordingly the CBI also submitted chargesheet against the Appellant

3. Thereafter, the Appellant was charged by the Trial Court under Sections 302/326/436/201 IPC on 21st April, 2005. The Appellant pleaded not guilty and claimed total ignorance regarding the occurrence. He further pleaded that the so-called confessional statement made to the Police were forged and obtained under threat. According to him he could not say what has happened and how he was found by neighbours inside the well in the morning of 2nd June, 2003. During his statement under Section 313 Cr.PC he admitted only two things that in the night of 1/2 June, 2003 the deceased persons were inside the house while P.W 11 has gone to Bangalore. He further admitted that when the neighbours tried to fetch water from the well he was found there hanging with the help of a pipe. He specifically denied that he has accepted his guilt during narco analysis, brain electrical activation test and finger print examination at Gandhi Nagar, Gujrat. According to him, when he was threatened and beaten by the Police he confessed before the Police, which stood now denied.

4. The learned Trial Court, after examining of witnesses held the convict guilty for the offences charged and sentenced the convict Ajay Pal to be hanged till death holding it as rarest of rare cases. Therefore, the present Death Reference No. 3/2007 is before us.

5. The convict Ajay Pal has preferred separately an appeal from jail and questioned the conviction as well as the sentence. According to the petition filed by this Appellant, the conviction was not proper and in accordance with evidence on record. In the death reference this Court appointed Sri Mahabir Prasad Sinha as amicus curiae and in the Criminal Appeal Sri B.M Tripathy, Senior Advocate as amicus curiae to assist the Court to answer the Death Reference and Cr. Appeal on merit. Senior Counsel Sri Tripathy as well as Mr. Sinha have assisted the Court to the best of their ability in arriving at the conclusion.

6. Before we go in details of the evidence on behalf of the prosecution and defence version, certain facts on record deserve to be mentioned. It is undisputed fact on record that convict Ajay Pal was serving in the house of Dhirendra Kumar for more than 10 years before this occurrence. It is also admitted fact on record that on the fateful night of 11th June, 2003 P.W, 11 along with his eldest son had gone to Bangalore for his admission. There is no dispute that on that night deceased Amita @ Rubi, her second son Harshit along with two guests Golu and Anmol had taken food at about 9 PM and went to sleep. It is also admitted fact that the other servant Kaleshwar @ Kitu was sleeping inside the house whereas the convict had gone to the servant's quarter situated behind the house after locking the back grill. The fact that neigbours found smokes coming out from the house in the morning at about 5 AM and rushed there to find that outer gate was locked from inside which was broken by mohalla people, who rushed to the house to find that front grill with glass door was locked. The front door glasses were broken after which smoke started earning out. In the meantime fire brigade arrived there. There is no dispute that mohalla people went behind the house to fetch water where the convict was found hanging inside the well with the help of pipe. The prosecution case is that the convict has used the back grill to enter into the house and the said lock along with bunch of keys were recovered from the well on his disclosure made to the Police on 8th June, 2003. These facts are admitted by the convict from his examination under Section 313 Cr.PC There is no dispute that when Police arrived in presence of mohalla people and the informant P.W 10, all the dead bodies were recovered from the house out of which three bodies belonging to Amita, Anmol and Golu were charred beyond recognition. House hold Articles including bed, clothes were also found burnt. The dead bodies of Harshit and Kitu were found outside the main bed room in the dining hall having various ante mortem injuries on their bodies. The Police also found large amount of blood on the bed of Harshit and school bags lying near the bed. The post mortem report has mentioned that death of three charred bodies was caused due to ante mortem injuries and burning whereas death of Harshit and Kitu was caused because of ante mortem injuries caused by hard and blunt substance. As such we find that at the PO five dead bodies with various injuries and three charred due to burning, were recovered by the Police from the house. This house was admittedly found locked from front side along with locked front gate of the campus. However, the back grill was found unlocked and the keys as well as the lock were later on recovered by the Police from the well on disclosure made by this convict, it is also admitted fact on record that there is no direct eye witness of the occurrence. However the deceased were beaten to death and fire was caused inside the bed room resulting in charring of three dead bodies. The Police has further seized food items, which were found laced with pesticide “themed”. This pesticide causes unconsciousness and even death if consumed in large quantity. Themed is used as pesticide for plants. As such we will have to find out whether the circumstances available on record have been rightly evaluated by the Trial Court before holding the convict Ajay pal guilty of the charges and then whether sentence passed against him is sustainable.

7. The prosecution has examined altogether 20 witnesses, out of which Pws 10 and 11 are brother and husband of deceased Amita Sinha. Pws 1, 2, 3, 7; 8 and 9 are witnesses, who arrived at the PO after finding the house set on fire and being informed by the informant. They have given the details how they went inside the campus, broke open the front grill and tried to douse the fire. According to them, they found the Appellant inside the well when they went to fetch water from the well. They are also seizure list witnesses of the Articles seized by the Police from the PO on 2nd, 3rd and 8th June, 2003. They have further supported the prosecution case that when the Police examined the Appellant he was wearing a full pant, lower part of which was found partly burnt. They have also supported the prosecution version that the convict has confessed before them that he has committed this crime and killed alt the deceased persons during the night after entering the house from backdoor grill because deceased Amita has abused him in the night for preparing bad food. According to them the Appellant confessed before them that he was being abused by Amita and her son regularly and refused to advance money for treatment of his sister's son which has enraged him to commit this crime. We have no hesitation to hold that any confessional statement made before the Police is inadmissible except regarding recovery of Articles on his disclosure. However, extra judicial confession made before the witnesses have to be considered in accordance with law, if other circumstances supported their statement to the extent of confession made by the convict.

8. P.W 12 Dr. Shambhu Sharan has conducted the post mortem examination on the five dead bodies, marked as Exh. 9 series. He has found the dead bodies of Anmol aged about 11 years, Ayan aged about seven years, Kitu aged about 16 years, Harshit aged about 15 years and Rubi aged about 40 years in burnt condition. Three bodies of Ayan, Annaol and Amita were badly burnt and converted into charcoal and ashes. According to him Kitu and Harshit have got certain other injuries such as fracture of middle thigh, right hand finger and broken ribs. They also got burns over whole body surface. It shows that three bodies of Amita, Anmol and Ayan were burnt to death while two bodies of Kitu and Harshit were firstly subjected to assault and then burnt. The fact remains that five dead bodies found inside the locked house with back grill unlocked and the Appellant supposed to be sleeping inside the servant's quarter situated behind the house.

9. RW. 13 Gopal Jee has examined all the five viscera preserved for forensic examination and found ‘themed’ present usually used in cultivation work. According to him, the pesticide mixed in tea, coffee or prepared food in large quantity would cause death and in small quantity senseless. Therefore, the learned Trial Court found and held, that the deceased consumed themed with prepared food just before the occurrence. RW. 15 Partho Sinha has visited the PO on 6th June, 2003 to ascertain the reasons for fire and submitted his report, vide Exh. 10. According to him, the place was set on fire to burn specific objects where struggle has taken place.

10. P.W 17 Dr. Shivratna Lalit Viaya has conducted the narco analysis on the convict at Gandhi Nagar, Gujrat on 23rd and 26th April, 2004 and opined that during test the convict indicated his involvement in the present crime. In the examination in chief he gave the details how the test was conducted with the consent of the convict and the responses could be analyzed to indicate that the convict was involved the alleged offence. She has proved the reports as Exhs. 16 and 17 for the prosecution. She further proved the CD of the narco test in two parts as material Exhs. 24 and 24/1. The video graphy of the said narco test was recorded in the CD which has been produced as material Exh. 24/2. During cross-examination she has asserted that this test was without errors and be accepted as true.

11. RW. 16 was the officer-in-charge of Bariatu Police Station on 2nd June, 2003. He has recorded the statement of P.W 10 and investigated the case. He proved the fard beyan recorded by him as Exh. 8 and endorsement upon the fard beyan as Exh. 4/4, 4/5 etc. He got the PO videographed and photographed. He has described the PO in details during examination in chief showing the places where dead bodies were lying inside the bed room and dining room as well as the pet dog found inside the bathroom in unconscious condition. The photographs are material Exhs. VII, VIII and IX series proved by P.W 4 and 5. He has given the details of the house hold articles lying in the room with blood clots as well as in burnt condition to show that the articles of the house were burnt. All these things have been photographed and brought on record as material Exhs. IX series. He has prepared the inquest report of dead bodies and proved it as Exh. 1-3 series. He further sent those dead bodies for post mortem examination. He further seized the food Articles from dining table and fridge as well as blood clots from the place of occurrence and sent them for forensic examination as required for proper investigation in presence of P.Ws 8 and 9. He got the PO sealed after photography and placed one Constable to keep the PO intact. Next day he examined the informant and Sri Dhirendra Kumar, P.Ws 10 and 11 and came to know from them that the convict has confessed before them. Therefore, he brought the convict to Police Station where the convict further confessed before him regarding his involvement in this offence because of the scoldings made by deceased Amita Sinha in the night of Ist June, 2003. Without going into the details of this confessional statement before the Police, we find that on his statement a wooden rod of mosquito-net was recovered by the Police on 3rd June, 2003 near the well. This witness has further asserted that on the basis of this confessional statement the full pant worn by the convict with lower portion burnt was seized from him. He forwarded convict Ajay Pal to judicial custody in the morning of 4th June, 2003. According to him P.Ws 10, 11 and 14, Sanjay Kumar have stated before him that the convict had confessed his guilt before them without any pressure or threats. This witness has further stated that during his detention in judicial custody the convict again admitted on 8th June, 2003 that he has committed the offence and the manner in which he caused the death of deceased persons. According to him, on his statement the sabal was also recovered from the bed room as well as the key and lock from the well after getting it dried. This witness has been cross examined at length in which he admitted that he arrested Appellant Ajay Pal on 3rd June, 2003. P.W 18 has proved the seizure list prepared by P.W 16 as Ext. 5 series and handing over them to P.W 19, Inspector CBI on 18th February, 2004 and 13th August, 2004 respectively.

12. P.W 19 Raj Singh, inspector CBI has conducted the investigation after the case was handed over to CBI. He has recorded the statement of the informant Dhirendra Kumar and Sanjiv Kumar in February, 2004, who confirmed their earlier statements made before the Police. The CBI took custody of the convict from 26th March, 2004 in which it is said that the Appellant has confessed his guilt. He got the convict examined on 23rd and 26th April, 2004 at Gandhi Nagar for narco analysis, brain electrification test and finger print examination as well as polygraphy. The tests were conducted on him with the permission of the Court. He has further brought on record the post mortem report and toxology report etc. vide Exh. 10 series. He handed over the charge of investigation on his transfer to Sri L.K jaiswal, P.W 20, who has submitted the chargesheet. The investigation conducted by CBI confirmed the Police investigation, on the basis of which the convict was sent for trial before the Court of sessions. During cross-examination this witness has admitted that Anup Kumar Sinha has phoned the Police. He has named P.W 7 Lotan Khan Choudhary as witness, who has also supported the prosecution case as well as the confession made by the Appellant in his presence to PWs. 10, 11 and 14, P.W 20 has recorded the statement of certain witnesses, who have been examined before the Trial Court. He got the report of the forensic science laboratory exhibited. The viscera of dead persons, according to this report, contained organ-phosphorus known as “themed” capable Jo cause death or unconsciousness after being consumed by human beings. However during cross-examination he admitted that on perusal of evidence already collected by P.W 19 he found the case true and submitted the chargesheet.

13. When we went through the statement of P.Ws 10 and 11, we find that the Appellant Ajay Pal along with the deceased persons was present in the house in the night of 1st June, 2003. In usual course of duty Appellant Ajay pal used to prepare food for the family with the help of another servant Kitu. P.W 11 Dhirendra Kumar has specifically stated that the Appellant having served the family for last ten years was relied upon by the whole farr???y ‘or daily routine work. It has come on record that on the fateful night all the deceased persons took food and went for sleep as usual. The forensic report of viscera mentions presence of themed in their stomach. The same themed was also found present in the food left over and Kept in the fridge same night, Presence of themed in the viscera of deceased Kitu, another servant, indicates that Kitu did not know about the presence of themed lie in the food. The food was prepared by the Appellant, who apparently had not taken the food ???iaced with themed and nowhere it has come that he was also affected with the presence of themed in his stomach. In such circumstances, the food prepared by Appellant Ajay Pal contained themed as proved with F.S.L report, question arises why he had not consumed the food containing themed. In such circumstances the only probable conclusion would be that he had not taker the food laced with themed knowing fully that it contained Themed. This particular circumstance has not been explained by the Appellant

14. P.Ws 7. 10, 1??? and 14 along with other independent witnesses have asserted that convict Ajay Pal confessed before them in the evening of 3rd June, 2003 giving them the details how the deceased persons were assaulted, killed and then burnt. The recovery of mosquito rod and sabal was made on his disclosure from the PO as well as ???cks and banch of keys from the well, it snows that Ajay Paul has the Knowledge ana information where these articles would be located. So far as the question of reliance upon the such extra, ???d;dal confessional statements concerned, settled aw is that in such circumstances the confession to the extent of recovery of the articles used in the commission of the offence can be accepted. Therefore, we accept the contention of the defence that irrespective of the confessional statement mentioned above, the guit of the Appellant cannot be presumed and assumed. The recovery of jock and Key from the well is ordinarily possible by a person, who has got personal knowledge where t may be found. It has come on record and admitted by the Appellant also that he was hanging inside the well when mohalla people arrived at the PO. He was taken out from the well and lock and keys having been found from the same well after a week shows that those Articles were recovered on his specific confession made oefore the witnesses and it has to be accepted as true. All the independent witnesses as well as the Police Officers nave consistently claimed that on the basis of confessional statement of the Appellant these items were recovered after drying of the well. Therefore, we find and hold that the recovery of bunch of keys and locks was ???mde from the well on his disclosure and so to that extent his confession has mighty been accepted by the Trial Court.

15. In the present facts it is clear that in the night of 1st June, 2003 only six persons were available in that ??? and all five persons except the Appellant was found dead and ???. It has also come on record that Appellant used to lock the house after food, secure it with locks and then retire in his room behind the house. The witnesses exam ??? before the Trial Court nave consistently stated that the gate of the boundary ??? as well as the front door was locked from inside and had to be broken before witnesses could enter the campus and the ???. However, it was found that the back ??? connecting the out houses with the main house was found unlocked. According to witnesses P.Ws 10 and 11. the said back gr??? was normally locked but ??? the fateful morning it was found without lock and the said lock and bunch of keys were recovered from the well after a week. We have already discussed the evidence available on record how and in what manner these locks and bunch of keys were recovered by the Police on being informed by the Appellant. The Appellant has got no injury on his person except that his full pant, which he was wearing was burnt, on lower side. It has been admitted by the Appellant in his statement under Section 313 Cr.PC that the Appellant was wearing this pant in the night of 1st June, 2003. Therefore, his presence at the time of fire inside the house is proved. There is no sign of themed on him. As such it is apparent that he has not taken the food laced with themed. When he was taken out of the well after 5 AM all the house inmates were already dead with marks of violence on them. The post mortem report mentions that Amita Sinha, Harshit and Kitu were assaulted before their bodies were burnt. The neighbours could not hear any alarm or noise made by these five persons, which is normal if they were in senses. As such it is apparent that when they were assaulted, they were either unconscious or already dead with the effect of themed in their bodies. The condition in which the dead bodies were found burnt, almost charred to ashes shows that they were helpless and not in a position to react while assaulted and being put on fire. The entire bed room and its articles were found burnt. The presence of two dead bodies in the dining room with blood and violence marks on their bodies, burnt partly shows that they were also put to fire after having been assaulted and making them unconscious. Kittu, second servants, was treated along with the house inmates in the same manner.

16. The Appellant has not tried to explain any of these circumstances discussed above. He could not explain when he was present in the out house what prevented him to find out what was happening Inside the house. An adult person aged about 30 years, who used to look after the family for last ten years, must have concern and anxiety what happened inside the house causing death of five persons. The neighbours were attracted due to fire and smoke coming out of the house but the Appellant occupying the room just behind the house, did not react rather got hidden himself in the well. Therefore, it was for him to explain why he preferred to hide himself inside the well than to raise alarm calling the neighbours and try to extinguish the fire. The condition of the dead bodies and the house shows that the fire was set on knowingly by someone before the neighbours could notice the smoke coming out from the house. Alt these circumstances indicate that the Appellant had knowledge of the offence much prior to the neighbours came to notice the fire. It was for him to explain in what circumstances he could not notice the fire or tried to rescue the house inmates when the back door was open. Normally in such circumstances the first reaction by the Appellant would have, was to rush inside the house and try to help the victim but instead of that he hid himself inside the well.

17. All these circumstances and the facts on record prove beyond doubts that the deceased persons took food laced with themed prepared by him indicates strong circumstances against him. The circumstance in which the dead bodies were found burnt badly along with marked violence, shows that they were subjected to assault afterthey became unconscious. Learned Amicus Curiae suggested that the Appellant could not commit the murder of five persons singly handed. In the facts where the deceased persons were already unconscious or dead, he may have assaulted them at will, as they were unable to resist. It has further-come on record that Harshit and Kitu tried to resist for which they had to suffer much, as Harshit was found having a number of ribs broken while Kitu was having fracture on skull, nose and face. A lot of blood was also found inside the room and upon the bed of Harshit. All these circumstances shows that these two persons were assaulted mercilessly before they were brunt to death. No one other than Appellant have a chance to enter into the house, commit the crime and then get back through the back grill The entry of any other person with other ulterior motives also stand ruled out with the presence of burnt bundle of currency notes of Rs. 500 denomination and other valuables, ornaments etc. left untouched inside the house.

18. Therefore, we find and hold that the circumstances directly indicate that the Appellant was involved in this crime. In that context from the statement of witnesses R.Ws 7, 10, 11 and 14, it becomes clear that convict Ajay Pal made extra judicial confessional statement before them regarding his involvement in this crime. All these witnesses have consistently stated that in their presence without any threat or inducement Appellant Ajay Pal has admitted that he has committed the crime signal handed out of disgust and reaction in the night of 1st June, 2003. The admitted part of this confessional statement has resulted in recovery of weapons like sabal from the PO and the lock and bunch of keys from the well, which was possible only on his specific and clear statement. In (2003) 9 SCC 277 (Golakonda Venkateswara Rao v. State Of A.P), their Lordships have been pleased to hold that in such circumstances disclosures leading to recovery of the crime articles from concealed places, like well, on being pointed out by the Appellant, be treated voluntary and true. It was further held “it is well-settled principle of law that in cases where the evidence is purely circumstantial in nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution.”

19. It may further be quoted usefully:

The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently, the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the Articles of crime then cannot be false. (See Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 at P. 2448 : 1995 Supp (1) SCC 80,

20. As already noticed, we have found that the material Exhs.. key bunch and locks used to lock the back grill was recovered from the well on 8th June, 2003 after getting it dried on disclosures made by the Appellant by the Police. It has been found from the places where ordinarily public have no free access, situated within the compound and near the servant quarters. As such, we find and hold that these material Exhs, could not be ptanted just to rope the Appellant falsely in this case. In such view of the facts, this part of the confessional statement, on the basis of which these material Exhs. Were recovered from the well, were rightly and properly found and held to be correct and used against the Appellant.

21. It is well-settled principle of law that in such cases where no direct evidence is available, the involvement of the offender could be ascertained on the circumstantial evidence appertaining to the facts of the particular case. We have already noticed earlier that on the fateful night 1/2nd June, 2003, house belonging to P.W 11 was occupied by six persons out of which, except the Appellant, all five were found brutally killed and burnt later on. The Appellant, who was only alive person, has not explained what happened during the night and in what circumstances those five innocent persons, who took the dinner with him, were found dead in burnt condition in the early morning at about 5 AM by the neighbours. It has also been established beyond doubt with the evidence on record that the house in question was locked from the front side and the gate opening in the compound was also locked. The materials on record further make it clear that the house in question was set on fire after killing the inmates, five in all including the land lady, three children and one servant. The food consumed by five persons contained themed, which has been proved by P.W 13, Gopal Jee, the forensic expert, who examined their viscera and opined that themed was present. This themed is known to cause senselessness and even death, if consumed in adequate quantity. The food was prepared by the Appellant, which contained themed. In such circumstances the Appellant having no symptom of consumption of themed on him, itself indicates that the Appellant has not taken the food, which contained themed. It has not come on record, if anyone else than the Appellant has any opportunity to mix themed in the food. The fact remains that the Appellant has confessed before P.Ws 7, 10, 11 and 14 that he killed those persons because he was harassed and abused by deceased Amita and Harshit for preparing bad food. In the circumstances, discussed above, the mixing of themed in the food could not have been done by anyone else except the Appellant.

22. Further the post mortem report, vide Exh. 9 series, shows that the deceased Harshit and Kittu were firstly subjected to assault and then burnt. The dead bodies of other three deceased, Amita; Anmol and Golu were burnt to the extent of their becoming charcoal. The injuries found upon Harshit and Kittu were caused by hard and blunt substance. The recovery of iron Sabal from the room on being pointed out by the Appellant to the Police on 8th June, 2003 in this context is relevant. The injuries on these two persons having fractured thigh, fingers and scalp goes to indicate that these injuries were caused by Sabal, a hard and blunt weapon. The extra judicial confessional statement of Appellant in this context indicates that he has used this sabal for committing this crime. Our opinion get strength from the facts that if the Appellant was not the author of these assaults, admittedly sleeping outside the house in the servant quarters, must have the chance of hearing the cries expected from Harshit and Kittu where they were being assaulted severely by someone else than the Appellant. We further find that when the fire was set on those five persons, they must be dead because if any person is put on fire and is able to protest or raise alarm before being put on fire to be charred, must have raised cries drawing the attention of the Appellant and also the mohalla people ordinarily. The night between 1/2 June, 2003 could not have passed peacefully in the event the deceased persons have got any chance to protest or raise alarm. Therefore, we find that in the circumstances where the house was locked from outside, the Appellant having the access from back grill, firstly served themed laced food to five persons, then assaulted and finally burnt them to death.

23. There is absolutely no explanation from the side of Appellant during cross-examination of R.Ws at trial stage and even when his statement was recorded under Section 313 Cr.PC In this background, the extra judicial confessional statement of the accused made before the witnesses, P.Ws 7, 10, 11 and 14, deserves to be accepted particularly in view of the corroborative evidence available on record like presence of themed In the viscera, assault found on Harsh it and Kittu and the burnt condition of the house along with dead bodies. The moment when mohalla people could find smoke coming out of the house, rushed to the place of occurrence but the Appellant was missing from the house and he was found hiding himself inside the well. He has sufficient opportunity to explain under what circumstances instead of helping the victims he was hiding himself inside the well. The recovery of bunch of keys and locks from the well after one week on his disclosure further provides the circumstances, on which we have to hold that the material exhibits were recovered on his disclosure, which was only within his knowledge. Having discussed the aforesaid facts and circumstances, we find that the prosecution case has rightly been accepted by the Trial Court on the basis of circumstances, in absence of any direct evidence on record.

24. The Hon'ble Apex Court in the case of Shard Birdhichand Sarda v. State of Maharshtra, (1984) 4 SCC 116 has laid down the guidelines to accept the circumstantial evidence as sole basis for conviction of an offender, where direct evidence is not available. Their Lordships held as follows:

153. (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 919 where the observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and ‘must be’ is long and divides vague conjectures from sure conclusions.

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

(3) The circumstances should be of conclusive nature and tendency,

(4) They should exclude every possible hypothesis except the one to be proved, and

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

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

25. Recently their Lordships in the case of Shivu v. The Registrar General, High Court of Karnataka, had occasion to consider these aspects at length, reported in (2007) 4 SCC 713 upholding the Judgment of conviction and confirming the death sentence, their Lordships held as follows:

12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

their Lordships further made reference to C. Chenga Reddy v. State of A.P, (1996) 10 SCC 193, in which it has been held as follows:

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

26. While approving the principles laid down in Hanumant, Son Of Govind Nargundkar v. State Of Madhya Pradesh, AIR 1952 SC 343, it was observed thus:

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

27. Reference was made to (1984) 4 SCC 116, as already discussed in para 25 of this Judgment.

28. Their Lordships further observed as follows:

16. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the used, he is entitled as of right to be acquitted.

29. As already discussed above, we find that in the facts of the present case prosecution case depends solely on the circumstantial evidence. It is well-settled principle that witnesses may lie but not the circumstances, The Trial Court has discussed all the circumstances available on record at length indicating the guilt of the convict. We have gone through the facts on record and the reasoning given by the Trial Court in an elaborate Judgment to ensure ourselves that the circumstances have beer properly evaluated before arriving at the conclusion. We may ??? briefly the admitted facts on record here that the house was locked from front side but the back grill was nor found locked The convict Ajay Pal has admitted his presence in the house in the night of 12 June, 2003. In the morning of 2nd June 2003 remaining five persons were found dead inside the house after consurrng food laced with themed, The house was set on fire causing severe burns on the body of three persons found inside the bed room and two persons found inside the dining hall. These two bodies further had ante mortem injuries caused by hard and bunt substance. The Appellant supposed to be sleeping n the servant's room just behind the back side grill of ‘he house was wearing full pant, partly burnt on the ower portion, However, he has not asserted that he ??? to put off the fire nor he explained under what circumstances he could not be aware of the occurrence inside the ??? and failed to put off the lire which was noticed by mohalla people at about 5 AM, It is also established beyond doubt that convict Ajay Pal used to retire after house inmates went to bed, lockirq the front gate, back gate etc The convict was not available to open the gates whan mohs..a people entered the compound and utimately found inside the well hanging with iron rod. The key bunch, and the lock used to lock the back grill was recovered by police after one week from the same well after getting the we;i dry on his disclosure. The seizure of sabal from the bed room was made by the Police on ??? disclosure. All these facts have been proved beyond doubt by ??? witnesses and the Informant. These witnesses are independent, who have withstood the rest of cross-examination at length. The recovery of five dead bodies with burns and ante mortem injuries has been proved by all thee witnesses and RW. 16, the 10 of this case, t has also come on record that the food was prepared by the convict on the fatefui night which was not consumed by him. Therefore, the fact remains that the convict Ajay pa had prepared the food consumed by the five persons who were ??? on found dead with ante mortem injuries and burn Injuries inside the house locked from the outside. These circumstances indicate directly that the convict was involved m the offence. The possibility of any outsider in committing the crime after poisoning the food tor causing death and further ante mortem injures on two of the deceased is ruled out because such case the intruder had every occasion to be noticed by this Appellant sleeping In the servant's room adjacent to be back grill. This back grill was found in locked and the lock and key bunch recovered from the well on being pointed out by this Appellant on 8th June, 2003. Any outsider committing the come is, therefore, totally ruled out as the valuatres of the nouse including the bundle ??? Rs. 500 lutes were found ??? and untouched. The convict has not explained any of the circumstances even during his statement under Sector 313 Cr PC. which were put to him by the Trial Court,

30. in such admitted on record, we find and hold 5 that the circumstances, indicated above, stand ??? established 2) the above mentioned circumstances definitely indicate the ???nvcivement of the convict in the crime: ‘.3; ??? the circumstances, taken together, form the ??? so complete that only the convict Ajay Pal had the opportunity to comm ??? the crime after poisoning the five persons with themed; (4) any chance of an outsider coming inside the house to commit the crime is ruled out, as the house was found closed from outside and locked property-5) the nousa was normally crecked and locked by the convict every night as he was the only male adult member of the house serving there for last ten years; (6) the said bunch of keys and lack used to lock the doors and gate was concealed the well where this Appellant was hiding himself in the morning of 2nd June, 2003. Another factor indicating the guilt of the convict is that the extra judicial confession made by him in the evening of 2nd and June, 2003 and lastly on 8th June, 2003 before witnesses P.Ws 7, 10, 14 and 16 cannot be brushed aside just because he retracted the same before the Trial Court. We have considered the statement of these five witnesses at length. Though the confession made before the Police is not admissible but any extra judicial confession if made voluntary without any coercion and undue influence, deserves to be given due regards.

31. Court News, Volume II, Issue No. II of April - June, 2007, may be usefully quoted wherein on 6th June, 2007, a two Judges Bench in Ajay Singh v. State of Maharashtra (Criminal Appeal No. 829 of 2007) held, that “while dealing with a stand of extra judicial confession, Court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously.”

32. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law”, the Bench said.

33. The Bench further held, that “it is for the Court to Judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied confession was voluntary, basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous.

34. In the circumstances discussed above, we find and hold that the evidence available on record excludes every possible hypothesis except the one to be proved and that the chain of evidence is so complete as not to leave any reasonable ground for conclusion consisted with the innocence of the convict. It further shows that in all human probabilities the crime must have been committed by this convict alone. Evaluating the circumstances and the evidence on record, in the background of the principles highlighted by the Hon'ble Apex Court for more than half century, we arrive at the inevitable conclusion that the prosecution has established the charges against the convict beyond all reasonable doubts in the present facts. Accordingly, we find and hold that the conviction of the Appellant Ajay Pal deserves to be upheld.

35. Learned Amicus Curiae has submitted that the Appellant out of disgust and anguish may have committed the offence as he was being scolded regularly and refused the advance amount by the land lady. We do not find ourselves in agreement with the submission advanced. The Appellant was the only adults male member serving the family for last ten years. The occurrence could not have taken place at the spur of moment on being denied the advance, amount as well as on being scolded for preparing bad food in the night of 1st June, 2003. The Appellant planned and designed for committing the crime, laced the food prepared by him with themed and served all the five inmates the said poisoned food. He took all precaution that the deceased persons did not escape from the design of crime by making them senseless or dead before putting the house on fire. He further got the house locked from front side including the boundary gate when the crime was being committed. He further ensured that the deceased Harshit and Kittu do not get out in injured condition to disclose the offence to others as they were assaulted with the iron sabal resulting in fracture on various parts before they succumbed to the injuries. Their dead bodies were found in the dining hall while blood spread all over the bed of deceased Harshit shows that they were assaulted inside the bed room and then further outside the bed room in dining hall. All the five dead bodies were found having severe burn injuries, which were set on tire intentionally to burn specific object. All these activities must have taken sufficient time after they were killed. The house was found set on fire and filled up with smoke noticed by mohalla people. At that time the Appellant was hiding himself inside the well with lower portion of his full pant burnt partly. As such we have no hesitation in holding that the dastardly crime was committed after making full preparation. It further rules out any chance of having committed the crime in sudden feat of anger and passion for being scolded by the land lady. The Appellant may not have any grievance against the remaining three persons, two guests and one co-servant Kittu. Having considered the above mentioned facts and circumstances, we find that the present case stands squarely covered within the test of rarest of rare cases where death sentence should be confirmed. In this context we rely upon the principle laid down by the Apex Court in Bachan Singh's case and Machhi Singh's case reported in (1980) 2 SCC 684 and (1983) 3 SCC 470), wherein it has been held, that when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when crime is enormous in proportion, as found in the present facts, with multiple murder wiping out the whole family including the guests and children, the punishment prescribed under the law requires to be inflicted. Their Lordships in (2007) 4 SCC 713 (722) have laid down as follows:

26. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical conseauences.

27. Considering the view expressed by this Court, in Bachan Singh case and Machhi Singh case, we have no hesitation in holding that the case at hands falls in rarest of rare category and death sentence awarded by the Trial Court and confirmed by the High Court was appropriate.

36. Accordingly, we answer the death reference confirming the conviction and sentence passed by the learned Trial Court against the convict Ajay Pal in affirmative. In the result, Cr. Appeal No. 403/2007 preferred by the Appellant is answered in negative. In this manner, the reference stand confirmed and appeal dismissed. The records be remitted back to the Court concerned for needful at once.