GUDDA @ DWARIKENDRAversusSTATE OF MADHYA PRADESH

                    [2013] 11 S.C.R. 293


                GUDDA @ DWARIKENDRA                              A
                              v.
             STATE OF MADHYA PRADESH
        (Criminal Appeal Nos. 1566-1567 of 2013)
                  SEPTEMBER 30, 2013
                                                                 B
  [H.L. DATTU, SUDHANSU JYOTI MUKHOPADHAYA
               AND M.Y. EQBAL, JJ.]

      Penal Code, 1860 - s. 302 - Murder - Three victims -
'S', and his wife and minor son - Accused-appellant allegedly C
assaulted the deceased persons with a knife after having
invited them at his house for lunch - Motive-of appellant in
brutally assaulting 'S' with a knife allegedly stemmed from his
abhorrence for his wife's relationship with 'S' - Conviction of
appellant u/s.302 /PC - Justification - He.Id: Justified - D
Evidence of the two eye-witnesses, PW-5 and PW-7, found
credible and trustworthy - Defense version that the incident
occurred when 'S' attempted to rape the wife of appellant and
on her resistance threatened to assault her with the knife,
apparently unnatural and improbable - Plea of right to private E
defence and non-orchestrated nature of the offence vitiated
by evidence of PW-9 - Prosecution case well supported and
established by the evidence of PWs 5, 7, 9 and 18 coupled
with the evidence of doctors, the post-mortem report and
medical evidence - No room for any doubt as to the guilt of F
the appellant.

    Sentence I Sentencing - Murder case - Three victims -
Conviction of accused-appellant uls. 302 /PC - Death
sentence awarded to appellant - Challenge to - Held:
Awarding of life sentence is the rule, death is an exception -   G
Application of "the rarest of the rare case" principle is
dependent upon and differs from case to case - Reasonable
proportion has to be maintained between brutality of the crime

                             293                                 H
    294      SUPREME COURT REPORTS                [2013] 11 S.C.R.


A   and the punishment - In the case at hand, the factum of the
    crime being pre-ordained and the motive of the appellant in
    brutally assaulting the deceased-'$' with a knife after having
    invited him at his house for lunch stemmed from his suspicion
    on his wife's fidelity and his abhorrence for her relationship
B   with the deceased- 'S' - However, the same motive to murder
    the wife of 'S' and their only child does not find favor with the
    facts of the case - The other two murders seem to have
    translated due to the sudden realization of appellant and his
    extreme fear of being caught for the murder of 'S' and a/so,
c   to save himself from being shunned by the society - Further,
    appellant is a young man of about 35 years and not having
    any criminal antecedents - Future possibilities of his reform
    a/so not ruled out - In the contextual facts, the brutality as
    evinced by the appellant would not fall within the ambit of the
    "rarest of the rare" cases so as to exercise the discretion of
0
    imposing capital punishment - Therefore, conviction of
    appellant uls. 302 affirmed, however, the sentence of death
    imposed on him commuted to imprisonment for life.

        Three persons, namely, 'S', his pregnant wife and 5
E   year old minor son were murdered in the rented house
    of appellant. The prosecution case was that the appellant
    thoroughly detested the association of his wife, A2 with
    the deceased '5' and did not like him visiting his house
    to meet A2 in spite of his strong opposition and therefore,
F   hatched a conspiracy with A2 to murder the deceased
    persons on the pretext of inviting and hosting them for a
    lunch. PW-5 is the owner of the house where appellant
    and A2 resided as tenants. PW-7 is another tenant in the
    house of PW-5. PW-9 was known to the deceased
G   persons and at the relevant time was in the
    neighborhood. PW-18 had accompanied PW-9 on the
    fateful day. PWs- 16 and 14 are the doctors who
    conducted post-mortem of the deceased persons.

          In the statements recorded under Section 313 CrPC,
H
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 295
               PRADESH

the appellant stated that on the fateful day on returning       A
from the market, he saw 'S' attempting to commit rape on
A2 and was attacking her with the knife; and on his
intervention, 'S' attempted to hit him and a fight ensued
whereafter he snatched the knife from 'S' and hit him in
order to protect his wife's modesty and their lives. It was     B
further stated by the appellant that since the wife and
child of 'S' intervened, they too suffered serioµs injuries
leading to their death.

     The Trial Court rejected the defence version and
finding the evidence insufficient to establish the guilt of C
A2 beyond reasonable doubt held that appellant alone
was guilty of murder of the deceased family and hence,
convicted him under "Section 302 IPC while acquitting A2
of the charge under Section 302 read with Section 120-8
IPC. The Trial Court further found the case fit to be in the D
category of "rarest of the rare" and therefore, sentenced
the appellant to death.
    Aggrieved, the State preferred appeal against the
acquittal of A2 while the appellant questioned his              E
conviction and sentence. The High Court held that the trial
court had not committed any error in acquitting A2 and
in convicting the appellant under Section 302 of the IPC,
and further confirmed the death sentence of the appellant.

      Two issues arose for consideration before this Court:     F
firstly, the conviction of the appellant and secondly, if the
same be upheld his sentence.

    Disposing of the appeals, the Court
                                                                G
    HELD:

Issue one: Conviction

    1.1. PW-5 in her evidence has testified in respect of
the appellant assaulting the deceased persons with a            H
    296     SUPREME COURT REPORTS              [2013] 11 S.C.R.

A   knife, refusing to stop even on intervention and thereafter,
    ru!lning away on his motorbike. PW-S's evidence is
    amply supported on all aspects by the evidence of PW-
    7, who has categorically stated that the appellant
    assaulted the deceased persons and continued to do so
B · in spite of PW-S's intervention and thereafter, fled away
    on his motorcycle. The said evidence of the two eye-
    witnesses garners further support from the testimonies
    of PW-9 and 18 who saw PW·S carrying the victim child
    out of the house and thereafter, the appellant running out
c with a knife in his hand and escaping on his motorcycle
    after extending threats to them. Further, the evidence of
    the eye-witnesses draws strength from the evidence of
    PWs-16 and 14 who conducted the post-mortem of the
    deceased persons testifying that the injuries were
0 caused by a knife like weapon. The same has been
    further corroborated by the evidence of PW-19 (the
    Investigating Officer), in respect of recovery of the knife
    from a pit of sand at the instance of the appellant. The
    testimony of the two eye-witnesses is natural, convincing
E and well corroborated by the evidence of PWs 4, 8, 9 and
    18 and the medical evidence. The two do not seem to
    have any animus against the appellant. Additionally, no
    such close alliance of the witnesses with the deceased
    persons has surfaced so as to prove their bias towards
    the appellant. Thus, the evidence of the two eye-
F witnesses. is credible and trustworthy. [Paras 21, 22, 23]
    [308-8-H]

       1.2. The defense version appears to be unnatural and
  improbable for the reason that when the appellant
G suspected the deceased person's illicit relationship with
  A2, the deceased would not have dared to enter the
  house of appellant, with his wife and child and attempted
  to rape A2 and on her resistance threatened to assault
  her with the knife. Further, the statement of appellant that
H when A2 was shouting for help, the wife of the deceased
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 297
               PRADESH
and the child continued to sit outside on the terrace while      A
the appellant intervened to protect A2 and the deceased
assaulted the appellant and on the intervention in the
scuffle the wife and the child received the fatal injuries.
The plea of right to private defence and non-orchestrated
nature of the offence stand vitiated by the evidence of          B
PW-9 who has testified that A2, immediately after the
fateful incident has narrated the version of the genesis
of the incident absolutely contrary to the version stated
by the appellant. [Para 24] [309-B-E]
     1.3. The prosecution case stands well supported and         C
established by the evidence of PWs 5, 7, 9 and 18 coupled
with the evidence of Doctors, the post-mortem report and
medical evidence and does not leave any.room for doubt
as to the guilt of the appellant. Therefore, the Courts below
have not committed any error in convicting the appellant         D
for the murder of the three persons under Section 302 of
the IPC and the conviction of the appellant requires to be
upheld. [Para 25] [309-F-G]
Issue two: Sentencing                                            E
     2.1. It is well settled that awarding of life sentence is
the rule, death is an exception. A deliberately planned
crime, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in a ghastly manner,
touching the conscience of everyone and thereby                  F
disturbing the moral fiber of society would call for
imposition of capital punishment in order to ensure that
it a~ts as a deterrent. However, the application of "the
rarest of the rare case" principle is dependent upon and
differs from case to case. The number of deaths or the           G
factum of whole family being wiped off cannot be the sole
criteria for determining whether the case falls into the
category of "rarest of rare". Further, one cannot loose
sight of the fact that brutality also cannot be the only
criterion for determining whether a case falls under the         H
    298     SUPREME COURT REPORTS              [2013] 11 S.C.R.


A   "rarest of rare" categories. [Para 27) [310-C-D, F-G]

         2.2. In the instant case, the genesis of crime and the
    manner of occurrence inside the house of the appellant
    remains clouded while the guilt has been clearly
B   established with the aid of available evidence. The factum
    of the crime being pre-ordained and the motive of the
    appellant in brutally assaulting the deceased-'$' with a
    knife after having invited him at his house for lunch stems
    from his suspicion on his wife's fidelity and his abhorrence
    for her relationship with the deceased-'$'. However, the
C   same motive to murder the wife of deceased-'$' and their
    only child does not find favor with the facts of the case.
    The farthest possibility and the maximum motivation
    which may be attributed could be the instant urge of the
    appellant to silence the two deceased persons who were
D   not only present in his house during the commission of
    crime but also witnesses to it, magnifying the undeniable
    probabilities of them testifying against the appellant
    leading to the discovery of his crime and thus, the
    immediate translai:ion of such fear by slaughtering them
E   and obliterating their evidence against him. [Para 30) [311-
    B-E]
       · 2.3. Indeed victims of the crime include an innocent
    child of 5 years and a pregnant lady who were assaulted
    by the appellant who was then in a position of trust
F
    having invited them to his house for lunch. But this alone
    would not be sufficient to place the crime in category of
    "rarest of the rare" as the proportion of culpability of the
  ··appellant could be separated for the three victims into
G two parts: the deceased 'S' and the pregnant lady and
    the young child. [Para 31) [311-F-G]

        2.4. On one hand the crime is pre-mediated in
    respect of the deceased 'S', while on the other, no motive
    or pre-orchestration could be culled out for the other two
H   deceased persons. The two murders seem to have
      j
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 299
               PRADESH
translated due to his sudden realization and extreme fear       A
of being caught for the murder of 'S' and also, to save
himself from being shunned by the society. The brutality
envisaged in the pre-mediated murder of 'S' alone, in the
light of present facts, does not inspire confidence so as
to place it in the category of "rarest of the rare". Further,   B
the appellant is a young man of about 35 years and
neither does he have any criminal antecedents nor is it
stated that he is or has been an anti-social element. The
future possibilities of his reform also cannot be ruled out.
[Para 32) [311-H; 312-A-C]                                      C

      2.5. In a civilized society - a tooth for a tooth and
an eye for an eye ought not to be the criterion to clothe a
case with "rarest of the rare" jacket and the Courts must
not be propelled by such notions in a haste resorting to
capital punishment. Our criminal jurisprudence cautions         D
the courts of law to act with utmost responsibility by
analyzing the finest strands of the matter and it is in that
perspective a reasonable proportion has to be maintained
between the brutality of the crime and the punishment. It
falls squarely upon the Court to award the sentence             E
having due regard to the nature of offence such that
neither is the punishment disproportionately severe nor
is it manifestly inadequate, as either case would not sub-
serve the cause of justice to the society. In jurisprudential
terms, an individual's right of not to be subjected to cruel,   F
arbitrary or excessive punishment cannot be outweighed
by the utilitarian value of that punishmer1t. [Para 33) [312-
C-F]

    2.6. In the contextual facts, the brutality as evinced
by the appellant would not fall within the ambit of the         G
"rarest of the rare" cases so as to exercise the discretion
of imposing capital punishment. Therefore, while
recording its concurrence with the findings and
conclusions of the Courts below as regards the guilt of
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    300      SUPREME COURT REPORTS           [2013] 11 S.C.R.


A   the accused under Section 302, this Court is of the
    considered opinion that the sentence of death imposed
    on the appellant be commuted to imprisonment for life.
    [Para 35] [313-A-C]

       Bachan Singh vs State Of Punjab, 1983 1 SCR 145;
B
  Machhi Singh v. State of Punjab, 1983 SCR (3) 413;
  Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257: 2012
  (3) SCR 630; Swamy Shraddananda (2) v. State of Kamataka
  (2008) 13 SCC 767: 2008 (11) SCR 93; Santosh Kumar
  Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC
c 498,: 2009 (9) SCR 90; Mohd. Farooq Abdul Gafur v. State
  of Maharashtra (2010) 14 SCC 641: 2009 (12) SCR 1093;
  Haresh Mohandas Rajput v. State of Maharashtra (2011) 12
  SCC 56 : 2011 (14) SCR 921; State of Maharashtra v.
  Goraksha Ambaji Adsul (2011) 7 SCC 437: 2011 (9)
D SCR 41; Aqeel Ahmad v. State of U.P. (2008) 16 SCC 372
  : 2008 (17) SCR 1330; Ram Pal v. State of U.P. (2003) 7
  sec 141 and Panchhi v. State of U.P, (1998) 7 sec 177
  and Dagdu and Ors. v. State of Maharashtra (1977) 3 SCC
  68: 1977 (3) SCR 636 - referred to.
E
                     Case Law Reference:
          1983 1 SCR 145       referred to         Para 26
          1983 SCR (3) 413     referred to         Para 26
F         2012 (3) SCR 630     referred to         Para 26
          2008 (11) SCR 93     referred to         Para 27
          2009 (9) SCR 90      referred to         Para 27

G         2009 (12) SCR 1093   referred to         Para 27
          2011 (14) SCR 921    referred to         Para 27
          2011 (9) SCR 41      referred to         Para 27
          2008 (17) SCR 1330   referred to         Para 28
H
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 301
               PRADESH
    (2003) 1 sec 141          referred to          Para 28       A
    (1998) 1 sec 111          referred to          Para 29
    1977 (3) SCR 636          referred to          Para 34

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal            B
Nos. 1566-1567 of 2013.

    From the Judgment & Order dated 16.01.2012 of the High
Court of Madhya Pradesh, Principal Seat at Jabalpur in
Criminal Reference No.3 of 2010 and C.riminal Appeal No.
2246 of 2010.                                                    C

   Vijay Kumar, Gopi Chand, Preeti Bhardwaj (for Sangeeta
Kumar), for the Appellant.

    Vibha Datta Makhija, Vanshja Shukla, Mishra Saurabh for      D
the Respondent.

    The Judgment of the Court was delivered by

    H. L. DATIU, J. 1. Leave granted.

     2. These appeals are directed against the judgment and      E
order passed by the High Court of Madhya Pradesh at Jabalpur
in Criminal Reference No. 03 of 2010 and Criminal Appeal
No.2246 of 2010, dated 16.01.2012. By the common
impugned judgment and order, the High Court has confirmed
the judgment and order passed by the Additional Sessions         F
Ju~ge, Satna, in Sessions Trial No.257'·of 2007, dated
07.09.2010, whereby and whereunder the learned Sessions
Judge has convicted the appellant for offence punishable under
Section 302 of Indian Penal Code, 1860 (for short, 'the IPC')
and sentenced him to death.                                      G

Facts:

    3. The Prosecution case: On 28.05.2007, at around 12:20
p.m., Dehati Nalishi (Ex. P-10) was recorded by the
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    302      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   Investigating Officer (PW-19) on the basis of information
    received from the complainant-Ramesh Prasad Gupta (PW-4)
    regarding murder of his nephew Sunil Gupta, his daughter-in-
    law Pushpa Gupta and grandson Gaurav, aged 5 years by the
    appellant in his rented house. Thereafter, an FIR was registered
B   for the offence punishable under Section 302 of the IPC,
    inquest proceedings were conducted and the dead bodies
    were sent for post-mortem examination. On further investigation,
    blood-stained pieces of wall, cement floor, etc. along with a
    mobile phone, a Katar (sharp edged weapon) and the
C   Motorcycle of the deceased were seized from the appellant's
    house. On 31.05.2007, the appellant was arrested and at his
    instance an iron knife was recovered and sent for forensic
    examination.

         4. On further investigation it surfaced that the appellant
D   thoroughly detested the association of his wife, Smt. Geeta (A2)
    with the deceased-Sunil Gupta. It has come on record that the
    appellant did not like the deceased-Sunil Gupta visiting his
    house to meet A2 in spite of his strong opposition and therefore,
    hatched a conspiracy with A2 to murder the deceased persons
E   on the pretext of inviting and hosting them for a lunch. On the
    basis of the same, the charge-sheet was filed against the
    appellant and A2 for offences punishable under Sections 302/
    34 and 120-B of the IPC and the case was committed to trial
    by order dated 10.09.2001.
F
         5. In the statements recorded under Section 313 of the
    Code of Criminal Procedure, 1973 (for short 'the Code') the
    appellant has stated that on 27.05.2007, when the school was
    closed during holidays, the deceased had come to his house
    in his absence and asked his wife to come to school in the
G   morning insisting upon completion of some pending work. The
    day next, around 9.00 A.M. the deceased had sent message
    for A2 again. Then, the appellant had called the deceased and
    categorically told him that A2 would only go to the school when
    the school reopens. He has also stated that the same day on
H
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 303
         PRADESH [H.L. DATTU, J.]
returning from the market at 11 :30 AM, he heard the cries of        A
A2 for help and noticed the wife of the deceased and the child
sitting on the terrace of his house. He has further stated that
when he went inside, he saw the deceased attempting to
commit rape and was attacking A2 with the knife. On his
intervention, the deceased attempted to hit him and a fight          B
ensued where he snatched the knife from the deceased and
hit him in order to protect his wife's modesty and their lives. It
is also stated that wife of the deceased and the child intervened
between them and therefore suffered serious injuries leading
to their death. A2 has supported the said defence in her             c
statement.

      6. The Prosecution has examined 19 witnesses in support
of its case including three eye-witnesses PWs-5, 1·and 8. We
would only notice the evidence of witnesses relevant for the
disposal of this appeal, viz., PWs-4, 5, 7, 9 and 18 along with      D
the evidence of Doctors.

     7. PW-4 is the informant and has testified that on the
fateful day at 12.00 P.M. he overheard a mob in the market that
the appellant had committed murder of three persons in his           E
rented house. Upon proceeding towards the said house of
Subhadra Jaiswal (PW-5), he found dead bodies of the
deceased persons lying in the passage of the house. On
enquiry, PW-5 had informed him that about 45 minutes ago,
the appellant slaughtered them by a Katar and fled away and          F
that A2 had also received injuries on her leg.

     8. PW-5 is the owner of the house where the appellant and
A2 resided as tenants. She has stated that she was acquainted
with the deceased persons as they used to visit the appellant's
house. She has testified that on the fateful day at 11.00 AM,        G
she heard the shrieks from the staircase of her house and upon
reaching the spot, she witnessed the deceased followed by the
appellant with a knife in his hands running down the stairs.
Thereafter, the appellant started assaulting the deceased with
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    304     SUPREME COURT REPORTS               [2013] 11 S.C.R.


A the knife and despite her intervention he proceeded to assault
  the deceased family. She ran out after grabbing the child and
  immediately rushed to the house of A2's mother who resided
  in the neighborhood and informed about the incident. On
  returning, she found that the deceased persons had succumbed
B to their injuries and the appellant had fled.

       9. PW-7, Smt. Munni, is another tenant in the house of PW-
  5. In her evidence she has stated to have heard the sound of
  something falling from the stairs and cries at 12.00 PM on the
  fateful day, whereafter she went towards door of her house and
C witnessed the appellant assaulting the deceased persons with
  a knife. She has further stated that though PW-5 attempted to
  intervene, the appellant continued to assault the deceased
  persons.

D       10. PW-9, Lale @ Lal Singh was known to the deceased
  persons and at the relevant time was in the neighborhood. He
  has stated that at 11 :45 AM, he heard PW-5 screaming and
  coming out of the appellant's house with the child-Gaurav. When
  he went near the child, he noticed the stab injuries to which he
E had succumbed. In the meanwhile, the appellant came out of
  the house with a knife and threatened others not to stop him
  and fled away on his motorcycle. Further, PW-9 has stated that
  on proceeding towards the passage of the house, he found the
  deceased-couple lying in a pool of blood and A2 sitting on the
F stairs. Upon enquiry from A2, she stated that the appellant
  detested her relationships with the deceased-Sunil Gupta and
  that the deceased family was ii1vited for lunch at her house,
  where the quarrel broke out and resulted in murder of the three
  deceased persons by the appellant.

G        11. PW-18, Dinesh Singh, had accompanied PW-9 on the
    fateful day and thus, is a witness to the incident and has
    corroborated the testimony of PW-9.

      12. PWs- 16 and 14 are the Doctors who conducted post-
H mortem of Pushpa Gupta, Sunil Gupta and the child-Gaurav
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA                       305
         PRADESH [H.L. DATTU, J.]
respectively and have deposed in respect of the 26 week              A
pregnancy of the deceased-Pushpa Gupta, the injuries
sustained by them, weapon of crime as sharp edged knife and
the cause of death to be excessive hemorrhage due to ante-
mortem injuries.
                                                                     8
      13. The Trial Court has relied on primarily the evidence of
eye-witnesses PWs-5 and 7, whose evidence is corroborated
by the evidence of PWs-4, 8, 9 and 18 and the medical
evidence of PWs-16 and 14 and the post-mortem report of the
deceased persons and the medical report of A2 to reject the
defense version and record a finding that the appellant had          C
invited the deceased family for lunch and upon a quarrel
thereat, attacked Sunil Gupta with a knife 'and thereafter,
assaulted Sunil Gupta, his wife and his child to death. The
motive of the appellant is recorded as the suspicion of the
appellant on the fidelity of A2 and her continuous engagement        D
with Sunil Gupta even after his warnings. On the basis of the
aforesaid, the Trial Court has found the evidence insufficient to
establish the guilt of A2 beyond reasonable doubt and reached
the conclusion that the appellant alone is guilty of murder of the
deceased family and hence, convicted him under Section 302           E
of the IPC while acquitting A2 of the charge under Section 302
read with Section 120-B of the IPC. The Trial Court has
considered the following factors and found the present case fit
into the category of "rarest of the rare" and therefore, sentenced
the appellant to death for the following reasons :                   F

     a. The appellant had apparently no reason to commit the
     murder of three persons especially the murder of a
     pregnant woman and an innocent child,

     b. He was under no duress or provocation by any visible         G
     circumstances,

    c. His conduct in stabbing the deceased persons was "so
    brutal, cruel, grotesque and diabolical"
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    306      SUPREME COURT REPORTS                  (2013] 11 S.C.R.


A         d. Manner of commission of crime being unsympathetic
          and "dastardly".

       14. Aggrieved by the aforesaid, the State had preferred
  an appeal against the acquittal of A2 and the appellant had
  questioned his conviction and sentence. The High Court has
8 disposed of the said appeals along with the reference for
  confirmation of death sentence of the appellant. The High Court
  has considered the evidence on record at length and the
  judgment and order of the Trial Court and after considering all
  aspects of the case in the light of the submissions made by
C the parties has reached the conclusion that the Trial Court has
  not committed any error whatsoever in acquitting A2 and
  convicting the appellant for the offence under Section 302 of
  the IPC. The High Court has dismissed the appeals filed by the
  State as well the appellant-herein and confirmed the sentence
D of death of the appellant.

         15. Aggrieved by the aforesaid dismissal of his appeal and
    confirmation of his conviction and sentence, the appellant is
    before us in this appeal.
E
         16. We have heard Shri Vijay Kumar, learned counsel
    appearing for the appellant-accused and Smt. Vibha Dutta
    Makhija, learned senior counsel appearing for the respondent-
    State at length. We have also carefully perused the evidence
    on record including the evidence of the eye-witnesses and the
F   statements of the appellant and A2 under Section 313 of the
    Code and the judgments and orders of the Courts below.

    Submissions

G        17. Shri Kumar would submit that Courts below have erred
    in placing heavy reliance on the evidence of eye-witnesses,
    PWs-5 and 7 and rejecting the defence version of the incident.
    He would further contend that the plea of right to private defence
    put forth by the accused persons is not properly appreciated
H   by the Trial Court and therefore, the conviction of the accused
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 307
         PRADESH [H.L. DATTU, J.]
persons deserves to be set aside. On the question of sentence, A
he would submit, that the incident occurred at the spur of the -
movement when the deceased-Sun ii Gupta injured the .appellant
when he tried to protect his wife, and further the appellant had
to use the knife to defend himself from the assault made by the
deceased-Sunil Gupta. He would further submit that the wife of 8
the deceased and child suffered injuries only when they tried
to intervene between the deceased-Sunil Gupta and the
appellant and therefore, the death sentence deserves to be
commuted. He would submit that neither the murder was pre-
planned nor did the appellant had any motive and that the             c
manner and time of occurrence must be considered in the
background of his mental condition and agony while weighing
the mitigating and aggravating factors towards determination
of his sentence.

     18. Smt. Makhija would support the judgment and order            D
of the Courts below and submit that the conviction of the
appellant is justified in the light of evidence of Prosecution
Witnesses and post-mortem reports. On the question of
sentence, she would submit that the appellant has committed
the murder of three innocent persons in a pre-ordained fashion        E
driven by the suspicion of fidelity of his wife (A2). Further, that
no provocation or duress could be gathered from the facts of
the case in respect of the wife or child who were brutally
slaughtered and therefore, the case falls into the category of
"rarest of rare" warranting the imposition of death sentence on       F
the appellant.

      19. The learned counsels have addressed this Court on
two issues: firstly, the conviction of the appellant and secondly,
if the same be upheld his sentence. We would discuss the two          G
issues sequentially.

Issue one: Conviction

    20. The submission of Shri Kumar in respect of the non-
credibility of the eye-witnesses relied upon by the Courts below      H
    308      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   to establish the guilt of the appellant and reject the statements
    of the appellant and A2 fails to convince us.

        21. As already noticed by us, PW-5 in her evidence has
  testified in respect of the appellant assaulting the deceased
  persons with a knife, refusing to stop even on intervention and
8
  thereafter, running away on his motorbike. PW-5's evidence is
  amply supported on all aspects by the evidence of PW-7, who
  has categorically stated that the appellant assaulted the
  deceased persons and continued to do so in spite of PW-S's
  intervention and thereafter, fled away on his motorcycle. The
C said evidence of the two eye-witnesses garners further support
  from the testimonies of PW-9 and 18 who saw PW-5 carrying
  the child out of the house and thereafter, the appellant running
  out with a knife in his hai:id and escaping on his motorcycle after
  extending threats to them. The cross-examination of the
D aforesaid witnesses has neither punctured their testimonies nor
  elicited sufficient material to reject the prosecution version.

        22. Apart from the aforesaid, the evidence of the eye-
  witnesses draws strength from the evidence of PWs-16 and 14
E who conducted the post-mortem of the deceased persons
  testifying that the injuries were caused by a knife like weapon.
  The same has been further corroborated by the evidence of
  PW-19, in respect of recovery of the knife from a pit of sand at
  the instance of the appellant.
F      23. The testimony of the two eye-witnesses is natural,
  convincing and well corroborated by the evidence of PWs 4,
  8, 9 and 18 and the medical evidence. The two do not seem
  to have any animus against the appellant. There is nothing on
  record to suggest any dispute between the two eye-witnesses
G and the appellant or hint towards bitterness in their relationships
  so as to suggest their false testimony against him. Additionally,
  no such close alliance of the witnesses with the deceased
  persons has surfaced so as to prove their bias towards the
  appellant. Thus, the evidence of the two eye-witnesses is
H credible and trustworthy.
GUDDA @ DWARIKENDRA v. STATE OF MADHYA                      309
        PRADESH [H.L. DATTU, J.]
     24. It is true that there is no evidence to establish the A
genesis of the incident. The incident has occurred within the
four walls of the appellant's house. In a scenario of this nature
the prosecution and the defense version has to be tested on
the touchstone of probabilities and truthfulness. In our
considered view the defense version appears to be unnatural B
and improbable. We say so for the reason that when the
appellant suspected the deceased person's illicit relationship
with A2, the deceased would not have dared to enter the house
of appellant, with his wife and child and attempted to rape A2
and on her resistance threatened to assault her with the knife.    c
Further, the statement of appellant that when A2 was shouting
for help, the wife of the deceased and the child continued to
sit outside on the terrace while the appellant intervened to
protect A2 and the deceased assaulted the appellant and on
the intervention in the scuffle the wife and the child received the D
fatal injuries. The plea of right to private defence and non-
orchestrated nature of the offence stand vitiated by the
evidence of PW-9 who has testified that A2, immediately after
the fateful incident has narrated the version of the genesis of
the incident absolutely contrary to the version stated by the E
appellant. On this aspect of the matter, we are in consonance
with the concurring observations of the Courts below.

     25. In the light of the aforesaid, we are of the considered
view that the prosecution case stands well supported and
established by the evidence of PWs 5, 7, 9 and 18 coupled F
with the evidence of Doctors, the post-mortem report and
medical evidence and does not leave any room for doubt as
to the guilt of the appellant. Therefore, in our considered
opinion, the Courts below have not committed any error in
convicting the appellant for the murder of the three persons G
under Section 302 of the IPC and the conviction of the appellant
requires to be upheld.

Issue two: Sentencing

    26. We are mindful of the concept of and the caution to        H
    310      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A be exercised in classifying "rarest of the rare" cases in the light
  of the dictum of this Court in Bachan Singh case and Macchi
  Singh case which elucidated upon the few of many aggravating
  and the mitigating factors which must be judicially weighed and
  balanced while deciding upon the sentence proportional to the
B crime committed. In Ramnaresh v. State of Chhattisgarh,
  (2012) 4 SCC 257 this Court has reflected upon the aforesaid
  decisions and collectively listed the principles laid down therein
  and the factors which must be borne in mind by the Court.

C       27. It is well settled that awarding of life sentence is the
  rule, death is an exception. The principles laid down earlier and
  restated in the various decisions of this Court can be broadly
  stated that a deliberately planned crime, executed meticulously
  in a diabolic manner, exhibiting inhuman conduct in a ghastly
  manner, touching the conscience of everyone and thereby
D disturbing the moral fiber of society would call for imposition
  of capital punishment in order to ensure that it acts as a
  deterrent. (See: Swamy Shraddananda (2) v. State of
  Karnataka, (2008) 13 SCC 767, Santosh Kumar
  Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC
E 498, Mohd. Farooq Abdul Gafur v. State of Maharashtra,
  (2010) 14 SCC 641, Haresh Mohandas Rajput v. State of
  Maharashtra, (2011} 12 SCC 56 and State of Maharashtra v.
  Goraksha Ambaji Adsul, (2011) 7 SCC 437). However, the
  application of "the rarest of the rare case" principle is dependent
F upon and differs from case to case.

         28. This Court has consistently held that the number of
    deaths or the factum of whole family being wiped off cannot be
    the sole criteria for determining whether the case falls into the
G   category of "rarest of rare". (See: Aqeel Ahmad v. State of
    U.P., (2008) 16 SCC .372, Ram Pal v. State of U.P., (2003) 7
    sec 141J
         29. Further, we cannot loose sight of the fact that brutality
    also cannot be the only criterion for determining whether a case
H
 GUDDA@ DWARIKENDRA v. STATE OF MADHYA                        311
        PRADESH [H.L. DATTU, J.)

falls under the "rarest of rare" categories. In Panchhi v. State     Ai
of U.P, this Court has reiterated the said principle and thereby
justified the commutation of sentence from death to life
imprisonment.

       30. We would now revert to the facts of the instant case.     B
The genesis of crime and the manner of occurrence inside the
house of the appellant remains clouded while the guilt has been
clearly established with the aid of available evidence. The
factum of the crime being pre-ordained and the motive of the
appellant in brutally assaulting the deceased-Sunil Gutpa with       C
a knife after having invited him at his house for lunch stems from
his suspicion on his wife's fidelity and his abhorrence for her
relationship with the deceased-Sunil Gupta. However, the
same motive to murder the wife of deceased-Sunil Gupta and
their only child does not find favor with the facts of the case.
The farthest possibility and the maximum motivation which may        D
be attributed could be the instant urge of the appellant to
silence the two deceased persons who were not only present
in his house during the commission of crime but also witnesses
to it, magnifying the undeniable probabilities of them testifying
against the appellant leading to the discovery of his crime and      E
thus, the immediate translation of such fear by slaughtering
them and obliterating their evidence against him.

     31. Indeed victims of the crime include an innocent child
of 5 years and a pregnant lady who were assaulted by the             F
appellant who was then in a position of trust having invited them
to his house for lunch. But this alone would not be sufficient to
place the crime in category of "rarest of the rare" as the
proportion of culpability of the appellant could be separated for
the three victims into two parts: the deceased and the pregnant      G
lady and the young child.

     32. As stated above, on one hand the crime is pre-
mediated in respect of the deceased husband, while on the
other, no motive or pre-orchestration could be culled out for the
other two deceased persons. The two murders seem to have             H
    312      SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A   translated due to his sudden realization and extreme fear of
    being caught for the murder of the Sun ii Gupta and also, to save
    himself from being shunned by the society. Having said so, the
    brutality envisaged in the pre-mediated murder of Sunil Gupta
    alone, in the light of present facts, does not inspire confidence
s   so as to place it in the category of "rarest of the rare". Further,
    the appellant is a young man of about 35 years and neither does
    he have any criminal antecedents nor is it stated that he is or
    has been an anti-social element. The future possibilities of his
    reform also cannot be ruled out.
c      33. In a civilized society - a tooth for a tooth and an eye
  for an eye ought not to be the criterion to clothe a case with
  "rarest of the rare" jacket and the Courts must not be propelled
  by such notions in a haste resorting to capital punishment. Our
  criminal jurisprudence cautions the courts of law to act with
D utmost responsibility by analyzing the finest strands of the matter
  and it is in that perspective a reasonable proportion has to be
  maintained between the brutality of the crime and the
  punishment. It falls squarely upon the Court to award the
  sentence having due regard to the nature of offence such that
E neither is the punishment disproportionately severe nor is it
  manifestly inadequate, as either case would not sub~serve the
  cause of justice to the society. In jurisprudential terms, an
  individual's right of not to be subjected to cruel, arbitrary or
  excessive punishment cannot be outweighed by the utilitarian
F value of that punishment.

        34. We reiterate the observations of this Court in Dagdu
  and Ors. v. State of Maharashtra, (1977) 3 SCC 68 and
  Subhash Ramkumar case (supra) that all murders are
G inhuman, some only more so than others. The degree of brutality
  has to be ascertained in contrast with other cases and the
  criteria and the tests laid down in Bachan Singh case (supra) .
  and further streamlined in Macchi Singh case (supra) writ large
  upon the Courts the caution which must be borne in mind while
  declaring a crime so revolting and diabolical that it warrants
H nothing less but capital punishment.
 GUDDA @ DWARIKENDRA v. STATE OF MADHYA 313
         PRADESH [H.L. DATIU, J.]
      35. In the contextual facts, we are of the considered view      A
that the brutality as evinced by the appellant herein would not
fall within the ambit of the "rarest of the rare" cases so as to
exercise the discretion of imposing capital punishment. In the
light of the aforesaid and having regard to the nature of the
offence and the methodology adopted by the appellant, the             B
facts at hand fail to convince us that the case falls into the
category of "rarest of the rare" to justify the imposition of death
penalty. Therefore, while recording our concurrence with the
findings and conclusions of the Courts below as regards the
guilt of the accused under Section 302, we are of the                 C
considered opinion that the sentence of death imposed on the
appellant be commuted to imprisonment for life.

    36. In view of the above, we set aside the judgment and
order passed by the High Court and commute the death
sentence imposed on the appellant into life sentence.                 D

     37. The appeals are disposed of in the aforesaid terms.

B.B.B.                                     Appeals disposed of.