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xii) That the trial court has also failed to consider the plea of alibi in terms of Section 11 of the Evidence Act. The defence witnesses produced by them deposed that on the date of occurrence they had seen the appellant No.2 working as carpenter upto 7 pm and, therefore, could not have been expected to be at the place of occurrence between 1 to 2 pm, as is the case of the prosecution.

xiii) That the sentence of death awarded by the trial Court to the appellants is highly excessive and harsh, particularly in view of the fact that the appellants have been convicted on the basis of circumstantial evidence and not on the basis of direct evidence. The possibility of human error in the case of circumstantial evidence cannot be completely ruled out and, therefore, it is not safe to send somebody to gallows on the basis of such evidence.

12. On the point of sentence, Mr. Ateeb Kanth learned counsel for the appellants would argue that indisputably there is no direct evidence against the appellants in the case and the appellants have been convicted on the basis of circumstantial evidence. Even if, one were to consider that the prosecution has proved some of the circumstances linking the appellants with the commission of the offences, yet on the basis of such evidence, it is not safe to deprive four human beings of their lives. In a case rested solely on the circumstantial evidence, the error of judgment by a human being cannot be ruled out. He would, therefore, submit that the sentence of death penalty imposed on the appellants is a sentence extremely harsh and excessive and in the event Court does not agree with the appellants seeking acquittal, he would pray for converting death penalty into life imprisonment.

iii) That after committing rape and with a view to eliminate evidence, the appellants committed her murder by slitting her neck by use of a knife.

iv) That the appellants are of young age having criminal record.

37.2. Mitigating circumstances, as projected by learned counsel for the appellants:-

i) That the entire case is built on circumstantial evidence.

Nobody has witnessed the commission of crime by the appellants. Human error in making the judgment, even on the basis of proved circumstances, cannot be completely ruled out.

Howsoever perfect and legally correct we may claim to be, there is always a scope for an error in judgment. It is not uncommon that on the basis of same evidence on record, the two Courts may come to different conclusions. The trial Court acquitting the accused and the appellate Court reversing the acquittal and vice versa. In a case based on circumstantial evidence possibility of human error is still more. The rule of prudence demands that a Court may choose to give primacy to life imprisonment over death penalty in cases which are solely based on circumstantial evidence [See Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641]. Thus, keeping in mind the distinct nature of death penalty, it would be prudent to avoid imposing death penalty in cases based on circumstantial evidence because of the potential fallacy of conviction based only on circumstantial evidence and the fact that the death penalty is irreversible. There should be no dispute or doubt about the fact that the cases based on circumstantial evidence have far greater chances of turning out to be wrongful conviction, later on, in comparison to the ones' which are based on fitter source of proof like eye witness account.