Honble SHARMA, J.–Five persons of Elephant-riders family were battered to death on October 27, 2006 in the historic Amer area of Pink City Jaipur. Sahib Hussain, appellant herein, was charged and tried before the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City who convicted the appellant for the offence under Section 302 IPC and having regard to the peculiar facts and circumstances of the case found it to be rarest of rare cases imposed death penalty on him.

(2). The learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur made a reference (bearing Death Reference No. 1/2007) under Section 366 CrPC for confirmation of death sentence. The appellant also preferred appeals challenging his conviction and sentence as aforesaid.

FACTS:

(3). The brief facts as unraveled by the prosecution at the trial are as follows:-

On October 28, 2006 at 12.30 AM, the informant Jafar @ Lotiya handed over a written report (Ex. P. 1) to the SHO Police Station Amer at the place of incident. It was inter alia stated in the report that all the riders of elephants belonging to Ballu Bhai resided in the Elephants Than of Ballu Bhai at Bharti Colony Kunda. The elephant riders included informant, Munua and Munna Mawali. Around 10.30 PM while informant was passing through Kunda Highway after taking food from Shere Punjab Hotel, he saw Satish and Sahib Hussain (appellant) talking. Sahib Hussain was telling Satish that he had dispatched Seema Bhabhi to the destination and also killed Munna Mawali, who came to save her. He also told about killing of three children residing with them. Sahib Hussain, who was wearing check shirt of clay colour and blue pant proceeded to Than of Salim Durrani, Satish told informant that Sahib Hussain had a quarrel on the day of Eid festival and it continued. The informant then went towards his Than and found Munna Mawali lying in a pool of blood on the Chabutra out side his room and inside the room lying his nephew Kalu dead. In the other room Seema, Isha, son of Lalu Chacha, and Sonu, son of Munnas uncle, were lying dead in a pool of blood. The informant narrated the incident on telephone to Ballu Bhai. Soon thereafter Satish told informant that Sahib had changed his clothes and rushed towards Highway. After some time Police, Ballu Bhai and Munna arrived. Munna Mawali was removed to the Hospital but he died on the way. On that report a case under Section 302 IPC was registered and investigation commenced. Postmortem on the dead bodies was performed. Necessary memos were drawn, statement of witnesses were recorded, the accused was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur City Jaipur. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions disposed of the case as indicated herein above.

(4). It is well settled proposition that the graver the offence, the greater should be the care taken to see that neither an innocent person is convicted nor a guilty allowed to escape. Bearing this principle in mind we straightway proceed in accordance with sections 366 and 368 CrPC to examine the entire evidence independently.

SUBMISSIONS ON BEHALF OF THE APPELLANT:

(5). There is no ocular version of the incident and the prosecution entirely founded its case on circumstantial evidence. Learned counsel for the appellant vociferously canvassed before us that the circumstances relied upon by the prosecution have not been satisfactorily established and that in any event the circumstances said to establish against the appellant do not provide a complete chain to bring home the guilt against the appellant. The submiss

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