S.R. Bannurmath, J.

This reference and the criminal appeal are placed before me under Section 392 Cr.P.C. It is to be noted that both the learned Judges have found the accused guilty of the offence punishable under Sections 376, 392 and 302 IPC. Though both the Hon'ble Judges held that, the case falls clearly under the category of "Rarest of Rare Cases", there is a difference of opinion between the Hon'ble Mr. Justice V.G. Sabhahit and the Hon'ble Mr. Justice R.B. Naik as to whether the accused should be given capital punishable or not. As such, the present reference under Section 392 Cr.P.C. is before me.

In order to appreciate the evidence and the arguments on both the sides, it is necessary to look into the essential facts of the case as put forward by the prosecution.

According to the prosecution, the deceased Smt. Jayashri – mother of P.W.2 – Suresh and sister of P.W.22 – Manjula, was the widow of later Dr. Maradi Subbaiah, who died in the year 1996 due to cancer. After his death, the deceased along with her son – Suresh was staying in a house belonging to one Smt. Lalitha at Dasarahalli, Bangalore as a tenant.

During the relevant period that is in the year 1998, Sures