Full Judgment Text
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CASE NO.:
Appeal (crl.) 1302 of 2006
PETITIONER:
Bablu @ Mubarik Hussain \005Appellant
RESPONDENT:
State of Rajasthan \005Respondent
DATE OF JUDGMENT: 12/12/2006
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 4765 of 2006)
Dr. ARIJIT PASAYAT, J
Leave granted.
Challenge in this appeal is to the judgment rendered by a
Division Bench of the Rajasthan High Court at Jodhpur
confirming the death sentence awarded to the appellant for
commission of offence punishable under Section 302 of the
Indian Penal Code, 1860 (in short the ’IPC’). The trial Court
had imposed a death sentence and, therefore, made a
reference for confirmation of death sentence by the High Court
in terms of Section 366 of the Code of Criminal Procedure,
1973 (in short the ’Code’).
Appellant also filed an appeal and both the case under
reference and the appeal were taken up together and disposed
of by a common judgment.
According to the prosecution accused killed his wife-
Anisha, three daughters namely, Gulfsha, Nisha and Anta @
Munni aged 9 years, 6 years and 4 years respectively and son
Babu aged 2 = years. The Additional Sessions Judge (Fast
Track), Nagaur had found the charge for commission of offence
under Section 302 IPC to have been proved and imposed the
death sentence.
Prosecution version in a nutshell is as follows:
On 10.12.2005 at about 6 A.M. Alladeen (PW-1)
submitted a written report at Police Station, Nagaur stating
inter alia that In the evening of 9.12.2005 the appellant Bablu
gave beating to his wife and children. But they were rescued
on his intervention. He described Bablu as a person of
notorious character. It was further averred that in the morning
at about 5 a.m. his brother appellant Bablu came out of the
house shouting and making declaration that he has killed all
the five bastards by strangulation one by one. He killed his
wife Anisha, daughters Gulfsha, Nisha, Anta @ Munni and son
Babu. The dead bodies were found placed on the mattresses
tying the thumbs of each leg of the dead bodies by thread. On
this information police registered a case for offence punishable
under Section 302 I.P.C. and proceeded with investigation. All
the dead bodies were sent for postmortem. A Medical Board
consisting of three doctors conducted the postmortem of all
the five dead bodies. The appellant was arrested. After usual
investigation police laid charge-sheet against the appellant for
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offence punishable under Section 302 I.P.C. On being
committed the appellant was tried of the charge of offence
punishable under Section 302 I.P.C. by the court of Additional
Sessions Judge (Fast Track), Nagaur. The trial court on
consideration of the evidence led by the prosecution found the
appellant guilty of offence under Section 302 I.P.C.
The trial Court relied upon the following circumstances
to find the accused guilty.
(1) Extra judicial confession made by the
appellant before Murad Khan (PW-1), Bablu
Kalva (PW-2), Mohd Sharif (PW-3) and
Alladeen (PW-4).
(2) The presence of the appellant in the house
wherein the alleged incident took place.
(3) Recovery of ear ring of the wife from the
possession of the appellant.
At the time of hearing the reference and the appeal the
primary stand taken by the accused appellant was that the
extra judicial confession relied upon by the prosecution is not
correct. It was submitted that the alleged confession publicly
standing on a platform is highly improbable. The High Court
found that the evidence of Murad Khan (PW-1) and Bablu (PW-
2) was cogent and credible. PW-1 was a neighbour and PW-2 is
the brother of the accused-appellant. There is no reason as to
why they would falsely implicate the accused-appellant by
making an untruthful statement. Added to that, evidence of
PW-1 about the behaviour of the appellant was relevant. The
third circumstance was the recovery of ornament from the
possession of the appellant. The circumstances highlighted by
the prosecution according to the High Court presented a
complete chain of circumstances. Though it was submitted by
the accused-appellant that even if the prosecution case was
accepted in its totality, there was no special reason to impose
the death sentence. The High Court considered this plea in the
background of what has been stated by this Court in Machhi
Singh and Ors. v. State of Punjab (1983 (3) SCC 470) and
Bachan Singh v. State of Punjab (1980 (2) SCC 684). Reference
was also made to the decision in State of Rajasthan v. Kheraj
Ram (2003 (8) SCC 224). The High Court was of the view that
the appellant had acted in a most cruel and diabolic manner.
He deliberately planned and meticulously executed the same.
There was not even any remorse for such gruesome acts. On
the contrary, he was satisfied with what he had done. He
made a declaration of his act of abusing his wife and children.
Accordingly, the death sentence was confirmed.
The stand taken by the accused-appellant before the
High Court was re-iterated in this appeal. Additionally, it was
stated that the accused was in a state of drunkenness and did
not know the consequences of what he did and, therefore,
death sentence should not have been awarded.
On the contrary, learned counsel for the State submitted
that the cruel and diabolic acts of the accused show that he
does not deserve any leniency so far as the sentence is
concerned. Drunkenness cannot be an excuse for such cruel
and inhuman acts.
It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
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incompatible with the innocence of the accused or the guilt of
any other person. (See Hukam Singh v. State of Rajasthan
(AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad
(AIR 1956 SC 316); Earabhadrappa v. State of Karnataka
(AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR
1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987
SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989
SC 1890). The circumstances from which an inference as to
the guilt of the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from
those circumstances. In Bhagat Ram v. State of Punjab (AIR
1954 SC 621), it was laid down that where the case depends
upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring the offences
home beyond any reasonable doubt.
We may also make a reference to a decision of this Court
in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC
193, wherein it has been observed thus:
"In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion of
guilt is drawn should be fully proved and
such circumstances must be conclusive in
nature. Moreover, all the circumstances
should be complete and there should be no
gap left in the chain of evidence. Further the
proved circumstances must be consistent
only with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence....".
In Padala Veera Reddy v. State of A.P. and Ors. (AIR
1990 SC 79), it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests:
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.
In State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC
840), it was pointed out that great care must be taken in
evaluating circumstantial evidence and if the evidence relied
on is reasonably capable of two inferences, the one in favour of
the accused must be accepted. It was also pointed out that
the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so
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established must be consistent only with the hypothesis of
guilt.
Sir Alfred Wills in his admirable book "Wills’
Circumstantial Evidence" (Chapter VI) lays down the following
rules specially to be observed in the case of circumstantial
evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt
connected with the factum probandum; (2) the burden of proof
is always on the party who asserts the existence of any fact,
which infers legal accountability; (3) in all cases, whether of
direct or circumstantial evidence the best evidence must be
adduced which the nature of the case admits; (4) in order to
justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable
of explanation, upon any other reasonable hypothesis than
that of his guilt, (5) if there be any reasonable doubt of the
guilt of the accused, he is entitled as of right to be acquitted".
There is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested by the touch-
stone of law relating to circumstantial evidence laid down by
the this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of
Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed
thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should be in the first
instance be fully established and all the facts
so established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every hypothesis
but the one proposed to be proved. In other
words, there must be a chain of evidence so
far complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and it must be such
as to show that within all human probability
the act must have been done by the accused."
A reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC
1622). Therein, while dealing with circumstantial evidence, it
has been held that onus was on the prosecution to prove that
the chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or plea. The
conditions precedent in the words of this Court, before
conviction could be based on circumstantial evidence, must be
fully established. They are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may
be established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;
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(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so compete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
The only other thing which needs consideration is
whether death sentence as awarded by trial Court is proper.
Section 302 IPC prescribes death or life imprisonment as
the penalty for murder. While doing so, the Code instructs the
court as to its application. The changes which the Code has
undergone in the last three decades clearly indicate that
Parliament is taking note of contemporary criminological
thought and movement. It is not difficult to discern that in the
Code, there is a definite swing towards life imprisonment.
Death sentence is ordinarily ruled out and can only be
imposed for "special reasons", as provided in Section 354(3).
There is another provision in the Code which also uses the
significant expression "special reason". It is Section 361.
Section 360 of the 1973 Code re-enacts, in substance, Section
562 of the Criminal Procedure Code, 1898 (in short "the old
Code"). Section 361 which is a new provision in the Code
makes it mandatory for the court to record "special reasons"
for not applying the provisions of Section 360. Section 361
thus casts a duty upon the court to apply the provisions of
Section 360 wherever it is possible to do so and to state
"special reasons" if it does not do so. In the context of Section
360, the "special reasons" contemplated by Section 361 must
be such as to compel the court to hold that it is impossible to
reform and rehabilitate the offender after examining the matter
with due regard to the age, character and antecedents of the
offender and the circumstances in which the offence was
committed. This is some indication by the legislature that
reformation and rehabilitation of offenders and not mere
deterrence, are now among the foremost objects of the
administration of criminal justice in our country. Section 361
and Section 354(3) have both entered the statute-book at the
same time and they are part of the emerging picture of
acceptance by the legislature of the new trends in criminology.
It would not, therefore, be wrong to assume that the
personality of the offender as revealed by his age, character,
antecedents and other circumstances and the tractability of
the offender to reform must necessarily play the most
prominent role in determining the sentence to be awarded.
Special reasons must have some relation to these factors,
Criminal justice deals with complex human problems and
diverse human beings. A Judge has to balance the personality
of the offender with the circumstances, situations and the
reactions and choose the appropriate sentence to be imposed.
It should be borne in mind that before the amendment of
Section 367(5) of the old Code, by the Criminal Procedure
Code (Amendment) Act, 1955 (26 of 1955) which came into
force on 1.1.1956, on a conviction for an offence punishable
with death, if the court sentenced the accused to any
punishment other than death, the reason why sentence of
death was not passed had to be stated in the judgment. After
the amendment of Section 367(5) of the old Code by Act 26 of
1955, it is not correct to hold that the normal penalty of
imprisonment for life cannot be awarded in the absence of
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extenuating circumstances which reduce the gravity of the
offence. The matter is left, after the amendment, to the
discretion of the court. The court must, however, take into
account all the circumstances, and state its reasons for
whichever of the two sentences it imposes in its discretion.
Therefore, the former rule that the normal punishment for
murder is death is no longer operative and it is now within the
discretion of the court to pass either of the two sentences
prescribed in this section; but whichever of the two sentences
he passes, the Judge must give his reasons for imposing a
particular sentence. The amendment of Section 367(5) of the
old Code does not affect the law regulating punishment under
IPC. This amendment relates to procedure and now courts are
no longer required to elaborate the reasons for not awarding
the death penalty; but they cannot depart from sound judicial
considerations preferring the lesser punishment.
Section 354(3) of the Code marks a significant shift in the
legislative policy underlying the old Code as in force
immediately before 1.4.1974, according to which both the
alternative sentences of death or imprisonment for life
provided for murder were normal sentences. Now, under
Section 354(3) of the Code the normal punishment for murder
is imprisonment for life and death penalty is an exception.
The court is required to state the reasons for the sentence
awarded and in the case of death sentence "special reasons"
are required to be stated, that is to say, only special facts and
circumstances will warrant the passing of the death sentence.
It is in the light of these successive legislative changes in the
Code that the judicial decisions prior to the amendment made
by Act 26 of 1955 and again Act 2 of 1974 have to be
understood.
This Court in Ediga Anamma v. State of A.P. (1974 (4)
SCC 443) has observed : (SCC pp. 453-54, para 26)
"26. Let us crystallize the positive
indicators against death sentence under
Indian law currently. Where the murderer is
too young or too old, the clemency or penal
justice helps him. Where the offender suffers
from socio-economic, psychic or penal
compulsions insufficient to attract a legal
exception or to downgrade the crime into a
lesser one, judicial commutation is
permissible. Other general social pressures,
warranting judicial notice, with an
extenuating impact may, in special cases,
induce the lesser penalty. Extraordinary
features in the judicial process, such as that
the death sentence has hung over the head of
the culprit excruciatingly long, may persuade
the court to be compassionate. Likewise, if
others involved in the crime and similarly
situated have received the benefit of life
imprisonment or if the offence is only
constructive, being under Section 302, read
with Section 149, or again the accused has
acted suddenly under another’s instigation,
without premeditation, perhaps the court may
humanely opt for life, even like where a just
cause or real suspicion of wifely infidelity
pushed the criminal into the crime. On the
other hand, the weapons used and the
manner of their use, the horrendous features
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of the crime and hapless, helpless state of the
victim, and the like, steel the heart of the law
for a sterner sentence. We cannot obviously
feed into a judicial computer all such
situations since they are astrological
imponderables in an imperfect and
undulating society. A legal policy on life or
death cannot be left for ad hoc mood or
individual predilection and so we have sought
to objectify to the extent possible, abandoning
retributive ruthlessness, amending the
deterrent creed and accenting the trend
against the extreme and irrevocable penalty of
putting out of life."
In Bachan Singh’s case (supra) it has been observed
that: (SCC p. 751, para 209)
"A real and abiding concern for the
dignity of human life postulates resistance to
taking a life through law’s instrumentality.
That ought not to be done save in the rarest
of rare cases when the alternative option is
unquestionably foreclosed."
A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is
exercised. In order to apply these guidelines, inter alia, the
following questions may be asked and answered, (a) is there
something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a
death sentence?; and (b) are the circumstances of the crime
such that there is no alternative but to impose death sentence
even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
Another decision which illuminatingly deals with the
question of death sentence is Machhi Singh’s case (supra).
In Machhi Singh (supra) and Bachan Singh (supra) cases
the guidelines which are to be kept in view when considering
the question whether the case belongs to the rarest of the rare
category were indicated.
In Machhi Singh case (supra) it was observed: (SCC p.
489, para 39)
The following questions may be asked and answered as a
test to determine the ’rarest of the rare’ case in which death
sentence can be inflicted:-
(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that
there is no alternative but to impose death sentence even
after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
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The following guidelines which emerge from Bachan
Singh’s case (supra) will have to be applied to the facts of each
individual case where the question of imposition of death
sentence arises: (SCC p. 489, para 38):-
(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstances of the ‘offender’ also require to be
taken into consideration along with the
circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death
sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard
to the relevant circumstances of the crime, and
provided, and only provided, the option to impose
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.
In rarest of rare cases when collective conscience of the
community is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining death penalty, death sentence can be awarded. The
community may entertain such sentiment in the following
circumstances:
(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.
(2) When the murder is committed for a motive
which evinces total depravity and meanness; e.g.
murder by hired assassin for money or reward or a
cold-blooded murder for gains of a person vis-‘-vis
whom the murderer is in a dominating position or
in a position of trust, or murder is committed in the
course for betrayal of the motherland.
(3) When murder of a member of a Scheduled
Caste or minority community etc., is committed not
for personal reasons but in circumstances which
arouse social wrath, or in cases of ’bride burning’ or
‘dowry deaths’ or when murder is committed in
order to remarry for the sake of extracting dowry
once again or to marry another woman on account
of infatuation.
(4) When the crime is enormous in proportion.
For instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent
child, or a helpless woman or old or infirm person
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or a person vis-‘-vis whom the murderer is in a
dominating position or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the
circumstances in the light of the aforesaid propositions and
taking into account the answers to the questions posed by way
of the test for the rarest of rare cases, the circumstances of the
case are such that death sentence is warranted, the court
would proceed to do so.
A convict hovers between life and death when the
question of gravity of the offence and award of adequate
sentence comes up for consideration. Mankind has shifted
from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the
liberty of a citizen by convicting him and making him suffer a
sentence of imprisonment. Award of punishment following
conviction at a trial in a system wedded to the rule of law is
the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties, accusations are
brought against the accused, the prosecuted is given an
opportunity of meeting the accusations by establishing his
innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge
that leads to determination of the lis.
The principle of proportion between crime and
punishment is a principle of just desert that serves as the
foundation of every criminal sentence that is justifiable. As a
principle of criminal justice it is hardly less familiar or less
important than the principle that only the guilty ought to be
punished. Indeed, the requirement that punishment not be
disproportionately great, which is a corollary of just desert, is
dictated by the same principle that does not allow punishment
of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the Judge in arriving at a
sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised
by the special facts of each case. Judges in essence affirm
that punishment ought always to fit the crime; yet in practice
sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that
are offered to justify a sentence. Sometimes the desirability of
keeping him out of circulation, and sometimes even the traffic
results of his crime. Inevitably these considerations cause a
departure from just desert as the basis of punishment and
create cases of apparent injustice that are serious and
widespread.
Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it
remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal
severity is now unknown in civilized societies, but such a
radical departure from the principle of proportionality has
disappeared from the law only in recent times. Even now a
single grave infraction that is thought to call for uniformly
drastic measures. Anything less than a penalty of greatest
severity for any serious crime is thought then to be a measure
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of toleration that is unwarranted and unwise. But in fact quite
apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very
undesirable practical consequences.
Section 85 IPC deals with act of a person incapable of
judgment by reason of intoxication caused against his will. As
the heading of the provision itself shows, intoxication must
have been against his will and/or the thing which he
intoxicated was administered to him without his knowledge.
There is no specific plea taken in the present case about
intoxicant having administered without appellant’s knowledge.
The expression "without his knowledge" simply means an
ignorance of the fact that what is being administered to him is
or contains or is mixed with an intoxicant.
The defence of drunkenness can be availed of only when
intoxication produces such a condition as the accused loses
the requisite intention for the offence. The onus of proof about
reason of intoxication due to which the accused had become
incapable of having particular knowledge in forming the
particular intention is on the accused. Basically, three
propositions as regards the scope and ambit of Section 85 IPC
are as follows:
(i) The insanity whether produced by
drunkenness or otherwise is a defence to
the crime charged;
(ii) Evidence of drunkenness which renders
the accused incapable of forming the
specific intent essential to constitute the
crime should be taken into account with
the other facts proved in order to
determine whether or not he had this
intent; and
(iii) The evidence of drunkenness falling short
of a proved incapacity in the accused to
form the intent necessary to constitute
the crime and merely establishing that
his mind is affected by drink so that he
more readily give to some violent passion,
does not rebut the presumption that a
man intends the natural consequences of
his acts.
In the instant case, the plea of drunkenness can never be
an excuse for the brutal, diabolic acts of the accused. The trial
Court and the High Court have rightly treated the case to be
one falling in rarest of rare category thereby attracting the
death sentence.
The brutal acts done by the accused-appellant are
diabolic in conception and cruel in execution. The acts were
not only brutal but also inhuman with no remorse for the
same. Merely because he claims to be a drunk at the relevant
point of time, that does not in any way get diluted not because
of what is provided in Section 85 IPC but because one after
another five lives were taken and that too of four young
children. This case squarely falls under the rarest of rare
category to warrant death sentence.
The appeal deserves dismissal which we direct.