( 1 ) LOHRI is a famous festival of Hindus. It is celebrated every year on 13th january. Like many other Hindu festivals, it also has religious fervour and traces to hindu mythology. On 13th January, 1996, people in Delhi celebrated Lohri the traditional way by burning heaps of woods and putting flames. However, before these flames could even die down, it became pyre (symbolically) of innocent family of sharmas who were living in C-1/1396, Vasant Kunj, New Delhi. Same night, all four members of this family along with their servant were brutally murdered. The family consisted of Sh. S. P. Sharma, his wife Mrs. Shobha, two young children in their youth, namely, daughter Ms. Charu, aged 20 years and son Punit, aged about 15 years. The servant Dinesh was an adolescent boy aged about 9-10 years. In fact the family was having two servants. The name of other servant is Tika Ram. When the gruesome killings were discovered after breaking open the flat of Sharmas, Tika Ram was nowhere to be seen. The needle of suspicion, therefore, naturally, pointed towards tika Ram and the police started investigating the crime with this focus in mind. Ultimately, Tika Ram was apprehended; put to trial of having committed five murders and found guilty by the learned Additional Sessions Judge, New Delhi in Sessions case No. 330/96. Terming it as the rarest of rare cases, the learned Additional sessions Judge held the view that nothing less than death sentence would meet the ends of justice. Thus while convicting Tika Ram vide impugned judgment dated 21st november, 2002, of the charge under Section 302/394/411 of the Indian Penal Code (IPC), sentence dated 15th January, 2003 is pronounced by the trial court imposing death penalty under Section 302 IPC and directing that he be hanged by neck till he is dead.

( 2 ) SECTION 366 of the Code of Criminal Procedure, 1973 (Crl. P. C.) provides that where the the court of sessions passes a sentence of death, the proceedings are to be submitted to the High Court and the sentence is not to be executed, unless it is confirmed by the High Court. Having regard to this provision, present reference is sent to this court and in the meantime the accused is committed to Jail custody through warrant where he is cooling his heals waiting, anxiously and desperately, for the outcome of the present reference.

( 3 ) THE accused-Tika Ram is also not satisfied about his conviction by the learned Additional Sessions Judge. Therefore, he has filed appeal being crl. A. No. 146/2003 against the finding recorded in judgment dated 21st November, 2002 holding him guilty of murder of five persons as well as theft of property of the deceased persons and convicting him under Section 302 IPC reading Section 411 IPC. The challenge takes within its sweep, in the appeal filed by him, the order dated 15th january, 2003 as well, on the sentence passed by the learned Additional Sessions judge inflicting death penalty. This is how we are called upon to decide the legality, validity and propriety of the aforesaid conviction and sentence in the reference as well as in the appeal. Obviously, as the reference and the appeal are inter-connected, they were heard together.

( 4 ) MR. RAJESH Mahajan, Advocate argued for the convict-Tika Ram as amicus Curiae and was assisted by Mr. R. K. Sonkiya, another Amicus who was the defence counsel of the convict in the trial court as well. On behalf of the State, standing Counsel, Ms. Mukta Gupta made the submissions.

( 5 ) WITH this brief introductory, let us first embark on the prosecution story as unfolded during trial and the manner in which the convict was implicated. This may be traced in the findings of fact, as recorded by the learned Additional Sessions judge, in the following manner:

( 6 ) FAMILY of Sharmas, after celebrating Lohri returned to sleep with their servants Dinesh and Tika Ram, the convict. When the whole family was asleep, Tika ram got up and decided to wreck some personal venge