Judgment :-

P. Sathasivam, J.

1) These appeals are directed against the final judgment and order dated 05.03.2008 passed by the High Court of Judicature for Rajasthan at Jaipur in Criminal Death Reference No. 1 of 2007 and Criminal Appeal Nos. 91 and 92 of 2008 whereby the High Court disposed of the appeals filed by the appellant herein against the order of conviction and sentence dated 13.12.2007 passed by the Court of Additional Sessions Judge (Fast Track), Serial No. 1, Jaipur, District Jaipur (Rajasthan) by commuting the sentence of death to imprisonment for life.

2) Brief facts:

a) It is an unfortunate incident of killing of five persons who were residing at Bharti Colony, Kunda, Tehsil Aamer, District Jaipur, Rajasthan.

b) On 27.10.2006, at 10.30 p.m., one Zafar (PW-1)-the informant, who was also residing at the above said place, while on his way back home found the appellant herein talking to one Satish (PW-4) that he had finished Seema Bhabhi (sister-in-law) and also killed the three children and Munna Mawali. On hearing this, PW-1 went towards their house and found that Munna Mawali was lying in a pool of blood on the Chabutra outside his room and his nephew Kalu was lying dead inside the room and the bodies of Seema–the wife of Munna, Isha-son of Lalu Chacha and Sonu-son of Munna were lying in pool of blood in the other room. After seeing this, he ran towards Satish (PW-4) and asked him about the appellant herein. PW-4 informed him that he ran towards the Highway after changing the clothes. Thereafter, PW-1 informed the same to Ballu Bhai @ Ballu (PW-2) over telephone. After some time, a written report was handed over to the S.H.O., Police Station, Aamer by PW-1, at 12.30 a.m. Munna Mawali was removed to the hospital by the police but he died on the way.

c) On the basis of the said information, a case being Crime No. 466/2006 under Section 302 of the Indian Penal Code, 1860 (in short ‘the IPC) was registered against Sahib Hussain. Post mortem on the dead bodies was also performed. After investigation and filing of chargesheet, the case was committed to the Court of Additional Sessions Judge (Fast Track), Serial No. 1, Jaipur, District Jaipur (Rajasthan) and numbered as Session Case No. 90/2006. During trial, it came to the knowledge of the court that there was a scuffle between the appellant herein and Seema (since deceased) on the day of Eid which resulted in such a gruesome act. However, taking note of circumstantial evidence, the Additional Sessions Judge, by order dated 13.12.2007, convicted the appellant-accused for the offence punishable under Section 302 of IPC and sentenced him to death.

d) Aggrieved by the said order, the appellant-accused preferred appeals being Criminal Appeal Nos. 91 and 92 of 2008 before the High Court. Death Reference No. 1 of 2007 under Section 366 of the Code of Criminal Procedure, 1973 (in short ‘the Code) was also preferred by the trial court for confirmation of the death sentence. By impugned judgment dated 05.03.2008, the High Court disposed of the appeals filed by the appellant-accused by commuting the sentence of death to the imprisonment for life and also made a direction that he shall not be released from the prison unless he serve out at least 20 years of imprisonment including the period already undergone and also he shall not get the benefit of any remission either by the State or by the Government of India on any auspicious occasion.

e) Aggrieved by the said order, the appellant preferred these appeals from jail by way of special leave before this Court.

3) Heard Mr. Pijush K. Roy, learned amicus curiae for the appellant- accused and Ms. Archana Pathak Dave, learned counsel for the State of Rajasthan.

Contentions:

4) (a) Mr. Pijush K. Roy, learned amicus, after taking us through the entire materials, submitted that there is no direct eye witness to speak about the incident and the case of the prosecution entirely rests upon circumstantial evidence. According to him, the circumstance