JUDGMENT Wagle J.-This is an application under section 439 of the Criminal Procedure Code by State, praying that the sentence of imprisonment for life imposed on accused Gourishankar be altered to a sentence of death. 2. The accused was married to the deceased some time in 1950, and the families of both resided in Pul-file at Wardha. After marriage, the deceased lived with the accused till about the beginning of 1964, during which period; she gave birth to four children. The eldest amongst them is aged about eleven years, and the youngest is about three years old. The prosecution case is that the accuseds financial circumstances deteriorated by about 1963, and he began to suggest to his wife that she should earn money by immoral means. In other words, the suggestion made by the accused was that she should sell herself for money and provide the means of livelihood for the family. The prosecution case further is that the deceased was unwilling to do so and, ultimately, by about March 1964, she left the house of her husband alongwith her four children and came to reside with her brother Sadhu, who lived across the street. During the period from March to June 1964, the accused used to pay visits to Sadhus house and see his wife. 3. On June 14, 1964, at about 4 P. M., deceased Anusuya, accompanied by Panchafula (P.W. 1) and Anjani (P. W. 4)- the wives of two of her brothers-, went to the vegetable and fish market at Wardha. While they were in the fish market they saw the accused at some distance from them. Upon seeing these three females, the accused rushed towards them with a knife in his hand. These three females got frightened, two of them, viz. P. W. 1 Panchafula and P. W. 4 Anjani, sidestepped, whereas Anusuya, the deceased, began to run. She was chased by the accused. On coming near her, he caught hold of the deceased by her hair and, thereafter, gave blows with the knife in the abdomen of the deceased. The blows were delivered to such effect that her intestines came out and she fell down. 4. While this was happening, one Nana (P. W. 2), recent recruit to the police constabulary, ran to the rescue of Anusuya and caught hold of the accused from behind. The blows were delivered to such effect that her intestines came out and she fell down. 4. While this was happening, one Nana (P. W. 2), recent recruit to the police constabulary, ran to the rescue of Anusuya and caught hold of the accused from behind. The accused, however, gave a push with the elbow and Nana fell back. Nana again attempted to rescue Anusuya, but ultimately, he fell down; feeling a little giddy. While this was happening, Kesheo (P. W. 5), the, police c6nstable on duty in the bazar, came there running and caught hold of the hand of the accused which held the knife. He then whistled, and two other police constables, including Narayan (P. W. 6), came there. Kesheo (P. W. 5) handed over the accused to Narayan (P. W. 6) and one other constable, so that he should not escape. It was then discovered that Anusuya had died. The dead body of Anusuya was thereafter sent to the hospital and, upon post mortem, a number of injuries were found on her body, particularly, the abdomen. The accused was arrested during the course of investigation, and after the investigation was complete, he was sent up for trial and the Magistrate committed him to the Court of Session. Accused denied the charge. 5. Before the Court of Session, the prosecution examined. Panchafula (P. W. 1)- the wife of deceaseds brother, Anjani (P. W. 4)-the wife of another brother, Nana (P.W. 2)-a police constable, and Ramrao (P. W. 3)-an independent witness present in the bazar, as the persons who had actually witnessed the incident of the accused delivering the blows on the deceased. The prosecution also examined Kesheo (P. W. 5) as the policeman on duty who had apprehended the accused red-handed with the blood-stained knife in his hand and blood-stained clothes on his body. The prosecution also examined P. W. 6 Narayan, who had taken the accused to the police station and who had filed first-information-report Exh. 11. Dr. Humane (P. W. 8) was examined to prove the postmortem notes and the result of his examination leading to the death of Anusuya. The prosecution also examined P. W. 6 Narayan, who had taken the accused to the police station and who had filed first-information-report Exh. 11. Dr. Humane (P. W. 8) was examined to prove the postmortem notes and the result of his examination leading to the death of Anusuya. The case for the prosecution was that, probably being dissatisfied with the decision of his wife in refusing his request to lead an immoral life and being further dissatisfied with his wife for having deserted him, the accused rushed at the deceased and caused her death intentionally. The eye-witnesses evidence was believed by the learned Sessions Judge to hold that the prosecution had satisfactorily proved that it was the accused who had delivered the blows which had instantaneously resulted in the death of Anusuya. Relying upon the evidence of the medical officer Dr. Humane (P. W. 8), the learned Sessions Judge came to the conclusion that the injuries, which were caused to the deceased, were sufficient, in the ordinary course of nature, to cause death and that, therefore, the prosecution proved its case that the accused had murdered his wife Anusuya on June 14, 1964, at about 4.P. M. 6. The learned Sessions Judge thereafter considered the circumstances which were obtainable in this case, in the matter of the exercise of his discretion in regard to the sentence. The learned Sessions Judge came to the conclusion that the evidence was irresistible to lead to an inference that the mind of the accused was far from normal and hence, he indulged in the brutal act of murder. The learned Sessions Judge also held that the failure on the part of the prosecution to show the exact circumstances agitating the accuseds mind at the relevant time was, in his opinion, an extenuating circumstance which should weigh against imposing the maximum penalty of death. The learned Sessions Judge, therefore, having considered these circumstance" and; also having considered the effect of certain decisions of the other High Courts; held that the sentence of death should not be imposed. The accused was therefore, convicted under section 302, but sentenced to imprisonment for life. Against this order, the accused did not appeal. But the State filed the present. application in revision. Since, however, a notice for enhancement also gives; the right of arguing the question of conviction itself, we permitted Mr. The accused was therefore, convicted under section 302, but sentenced to imprisonment for life. Against this order, the accused did not appeal. But the State filed the present. application in revision. Since, however, a notice for enhancement also gives; the right of arguing the question of conviction itself, we permitted Mr. Kamlaker, who appeared for the accused, to argue the case as an appeal against conviction. 7. Mr. Kamlakar’s contention was that the prosecution had, in fact; , not proved its case at all. The accuseds defence, which he had taken before the Court of Session, was the following. He denied completely the incident as deposed to by the prosecution witnesses. His case was that he was living happily with his wife, the deceased, but that it, was the insinuation of her brother Sadhu which had turned her almost into a prostitute. She disclosed this fact to hill about a year before this incident, and that upset him so much that he fell in during the course of his illness, his wife did not attend to him but, on the, contrary left the house along with the children and went to reside with her brother sadhu. She continued her immoral means of earning money at the brothers house. This disgusted the accused. However, he kept quiet. 8. On the day of the incident, at about 4. P. M., when he had gone to the" bazar, he saw that a woman was being attacked by another person. Out of humanitarian instinct, he ran towards the woman and saw the assailant Krishna running away. He then found that the female who was attacked was his own wife. He picked her up and thereby had his clothes blood-stained. His case, therefore, was that he had done nothing. He had gone to the rescue of his wife but that nothing could be done because she was already dead. He" further stated that the witnesses for the prosecution had given false evidence" in order to hide the fact that it was Sadhu and his other brothers wife Panchafula who were responsible for the immoral life led by his wife. 9. Mr. Kamlakar read out to us the evidence of Panchafula (P. W. 1) and, .Anjani (P. W.4) to show that there was a remarkable discrepancy between the evidence of these two witnesses which led to a grave suspicion whether there were telling the truth. 9. Mr. Kamlakar read out to us the evidence of Panchafula (P. W. 1) and, .Anjani (P. W.4) to show that there was a remarkable discrepancy between the evidence of these two witnesses which led to a grave suspicion whether there were telling the truth. Panchafula (P. W. 1) stated before the Sessions Court that she, her sister in law Anjani (P. W. 4) and deceased Anusuya left the, house together at about 4 P.M. to go to the bazar. However, Panchafula was contradicted by reference to her statement before the police wherein she had not stated that Anjani had accompanied herself and the deceased to the bazar. This fact was relied upon by Mr. Kamlakar to contend that there was serious doubt about the presence of Anjani at the place of incident at the time Anusuya was stabbed by the assailant. It is, undoubtedly, true that there is a discrepancy and, to some extent, a contradiction. But that contradiction would not lead to an inference that Anjani was not present at that place. The utmost that can be said is that Panchafula its contradicted by her police statement in respect of the presence of Anjani. But that does not detract from the evidence Anjani which is of a substantive nature. The police statement cannot, be used for an inference to be raised substantively from it. It can at best be used for the purpose of contradiction. The utmost, as we have earlier pointed out that could be said about the contradiction, is that Panchafula had not made a statement before the police that Anjani had also accompanied herself and the deceased to the market. 10. P. W. 4 Anjanis evidence, however, even after cross-examination was not shaken. Nor was the evidence of Panchafula shaken on this point. The evidence of these two females, who were most likely to accompany the deceased, who was living with Sadhu, appears to us to be most natural. The accused had also gone to the fish-market and it, therefore, appears that this market was well frequented by the persons, who were living in the Pul-file. We may note here that the accused and Sadhu have their houses just across the sheet in front of each other. There does not, therefore, appear to be any special circumstance for us to disregard the evidence of Anjani (P. W. 4) al together as the got-up witness. 11. We may note here that the accused and Sadhu have their houses just across the sheet in front of each other. There does not, therefore, appear to be any special circumstance for us to disregard the evidence of Anjani (P. W. 4) al together as the got-up witness. 11. In addition to the evidence of these two witnesses, there is one more important witness examined by the prosecution and he is police-constable Nana (P. W. 2). This witness states that, not only did he see the incident at which the accused had assaulted Anusuya, but that he had also attempted to rescue Anusuya. This witness has not been shown to be either interested, in the deceaseds family or antagonistic to the accused. He is an utter stranger. He lives in the neighbourhood, but nothing has been brought out .in his evidence to shake his evidence inherently, as the evidence of a partisan witness, who had some interest in the deceased or who has an animus against the accused. There is nothing in the cross-examination even otherwise to discard his evidence altogether. He also states that he remained with Kesheo (P. W. 5) near the dead body till about 8-45 at night. This fact was very severely commented upon by Mr. Kamlakar to contend that he had definitely shown a greater interest than would be shown by any ordinary person. Here we cannot ignore the fact that Nana was a fresh recruit to the police constabulary. An offence of murder had taken place in his presence and he had also made efforts to rescue the victim. Considering these factors, we do not think that the fact of Nana, remaining near the corpse till about 8-45 at night discloses any special interest of Nana in this incident. 12. The evidence of Nana (P. W. 2) fully corroborated the evidence of the two females. In fact, both the females, Panchafula (P. W. 1) and Anjani (P. W. 4), identified Nana before the Court. But we are not paying much importance to this identification before the Court. However, both the female witnesses had stated that a boy, who was near about, had attempted to rescue Anusuya by clinging to the accused from behind and that a scuffle had ensued between the accused and that boy. 13. Ramrao (P. W. 3) is another witness entirely unconnected with these families. He is a mason by profession. However, both the female witnesses had stated that a boy, who was near about, had attempted to rescue Anusuya by clinging to the accused from behind and that a scuffle had ensued between the accused and that boy. 13. Ramrao (P. W. 3) is another witness entirely unconnected with these families. He is a mason by profession. He states that, on the day of the incident, he had gone to the fish market at about 4 P. M. He further states that he reached the fish-market and he saw the accused giving blows with a bichuwa on the back of a woman who later on was found to be his (accuseds) wife. He further states that he saw one Babu catching the accused from behind by his waist. He then identified P. W. 2 Nana as the same Babu, Thereafter, he also, states that a policeman came there and he identified that policeman as Kesheo (P.W.5). He lastly states that this police constable pushed the accused and then handed him over to two policemen, who had also come at the spot at the time. Thereafter the accused was carried to the police station with a bichuwa in his hand. In cross-examination he stated that he had no acquaintance with the accuseds wife, but that he knew Sadhu and Bhaskar, the brothers of the deceased. There is nothing in his evidence which shows any particular animosity against the accused any interest in the deceased. He is a stranger witness who had come to the bazar on that day. The fact that so many persons had come to the bazar on that day would lead to an inference that it was very common for the persons living in the locality near about to visit this bazar to make purchases. He is not, therefore, a chance witness, but a witness, who would be most naturally found at the place where this incident had taken place. This witness fully corroborates the story given by the three other prosecution witnesses, P. W. 1 Panchafula, P. W. 2 Nana and P. W. 4 Anjani. The evidence of these prosecution witnesses was accepted by the learned Sessions Judge. Nothing has been pointed out to us, except what we have mentioned in regard to Anjani (P. W. 4), which would suggest that the evidence of these witnesses should not be accepted by us. The evidence of these prosecution witnesses was accepted by the learned Sessions Judge. Nothing has been pointed out to us, except what we have mentioned in regard to Anjani (P. W. 4), which would suggest that the evidence of these witnesses should not be accepted by us. In fact, out of the four witnesses, two are strangers to the family and two others are members of the family who would most naturally have been with the deceased at the time when the incident had taken place. We are of the opinion that the learned Judge was justified in holding that reliance could be placed upon these four witnesses to hold that the incident, had taken place in the manner deposed to by them. Out of the four witnesses, Panchafula and Anjani knew the accused as he was a relation. The other witnesses are clear on one point, viz. that the accused was then apprehended, by Kesheo, the constable, and that Kesheo handed over the accused to other policemen. 14. Kesheo (P. W. 5) states that on that day he was posted on duty in the market area between 2 and 7 P. M. He also states that it was a weekly bazar day. While he was taking a round in the fish sellers row, he heard a cry from behind, and he turned round and saw the accused giving blows to a woman with a bichuwa. When he went near the accused, he saw the woman lying down wounded. He saw that the intestines had come out and that the woman was blending profusely through the wounds and also through her mouth. He then "went near the accused and caught hold of him by his right hand firmly, to see that his grip on the weapon was loosened. He then snatched the bichuwa from the accuseds hand and took him aside holding him with both hands. Thereafter he gave the whistle and a police constable, Narayan came there along with another constable, and he asked both the constables to take the accused to tl1e police station. 15. Upon the evidence of this witness Kesheo (P. W. 5) Mr. Kamlakar urged that we must discard the evidence of Nana (P. W, 2). Thereafter he gave the whistle and a police constable, Narayan came there along with another constable, and he asked both the constables to take the accused to tl1e police station. 15. Upon the evidence of this witness Kesheo (P. W. 5) Mr. Kamlakar urged that we must discard the evidence of Nana (P. W, 2). The contention was that Kesheo (P. W. 5) must have been at the scene of incident at or about the time the incident had taken place as he was on duty in the bazar. Kesheo does not refer to the fact that Nana (P. W. 2) had attempted to rescue the woman by catching hold of the accused from behind. It. was therefore urged that, if a witness, who must necessarily have been there and who had seen the "incident, did not see Nana (P. W. 2) catching hold of the accused, then we must discard the evidence of Nana if we believe Kesheo (P. W. 5). 16. Mr. Dharmadhikari, however, urged that this incident of the giving of the blows by the accused to the deceased was in three stages. In the first stage some blows were given and there was an interruption by Nana catching hold of the accused. After throwing off Nana, the accused gave further blows. There was a further interruption by Nana and thereafter Nana fell down feeling giddy. Thereafter the accused delivered further blows. Mr. Dharmadhikaris contention was that Kesheo had come at the last stage of the incident when the intrusion of Nana (P. W. 2) was got rid of by the accused and he delivered further, blows to the deceased. If things had happened in this manner, then certainly, Nanas attempts to rescue the woman would not have been seen by Kesheo, (P. W. 5). We must also note that Kesheo (P. W. 5) does mention the presence of Nana as a person who was standing near the accused. The fact that Nana, was near the accused is proved by Kesheo. Kesheo noticed that all others had, moved away from the accused but that Nana constable was alone standing, near-by. This fact noticed by Kesheo (P. W. 5) viz., that Nana alone was standing near the accused when all others had moved away, supports the statement of Nana that he was present at the time the incident had taken place. Kesheo noticed that all others had, moved away from the accused but that Nana constable was alone standing, near-by. This fact noticed by Kesheo (P. W. 5) viz., that Nana alone was standing near the accused when all others had moved away, supports the statement of Nana that he was present at the time the incident had taken place. Instead of contradicting the evidence of Nana, ,therefore, the evidence of P. W. 5 Kesheo supports to a great extent, the important part of the version of Nana (P. W. 2) that he was near the scene of incident at the time the incident had, taken place. 17. Two things were further urged in regard to the evidence of Nana (P. W. 2), firstly, that his statement that he was taken to the hospital has not been corroborated by any medical evidence and, secondly, that the prosecution: has not led evidence to show that anyone had given him water or assistance so as to make him regain his consciousness, or get rid of the giddiness. So far as, medical evidence is concerned, Nana states that he was given only iodine to apply and he was asked to go away. So far as giddiness is concerned, the attention of persons present there must have been attracted towards the ghastly attack, viz. the accuseds delivering blows on the abdomen of the deceased, who had fallen down. Naturally, therefore, no particular attention would be, paid by anyone to Nana and, if at all any attention was paid, the assistance given to Nana may not have been noticed by the prosecution witnesses. We do, not, therefore, think that there is anything in the evidence to show that Nana (P. W. 2) was not telling the truth or that P. W. 5 Kesheo had not noticed Nana at the scene of incident. 18. Considering all these circumstances, we hold that the learned Sessions Judge was justified in coming to the conclusion that it was the accused who had delivered the blows with the knife on the body of the deceased Anusuya which had killed her. The evidence given by P. W. 8 Dr. Humane, considered along with postmortem notes (Exh. P-17), is clear enough to prove that whoever had assaulted Anusuya, had intended to cause her death. There were in all eleven injuries on her body. Injuries nos. 3 to II were all incised wounds. The evidence given by P. W. 8 Dr. Humane, considered along with postmortem notes (Exh. P-17), is clear enough to prove that whoever had assaulted Anusuya, had intended to cause her death. There were in all eleven injuries on her body. Injuries nos. 3 to II were all incised wounds. Injury No.1 in the postmortem notes mentions that peritoneum with peritoneal fact was seen protruding out side the body in the epigastrium region. Injury no. 2 mentions that the protruding organs were found punctured in the epigastrium region. Injuries nos. 2,3, 4,5,6 and 7 were all injuries on the abdomen and the intestines had come out. In some cases the depth of the injury was about 3 inches. Injuries nos. 8 and 9 were in the scapular region, injury no. 10 was on the upper border of left iliac bone and injury no. 11 was on the face, right side. The six injuries to which we have made a reference are all on one of the most vital parts of the body. The vital organs had come out and were found to be punctured. The intention of the person, therefore, who caused those injuries is obvious, viz. to cause death. The medical evidence, therefore, is clear enough to indicate that whoever assaulted Annsuya intended causing her death. It is, therefore, clear on the evidence of eye-witnesses and the medical evidence that the accused had intentionally caused the death of Anusuya by causing knife injuries on her abdomen on June 14,1964. The learned Sessions Judge, therefore, had come to the proper conclusion that; the accused was guilty under section 302 of the Indian Penal Code. 19. In the view that we have taken, it is not at all necessary for us to consider the defence taken by the accused that he was only a speetator and that he reached the spot after his wife was killed. We have believed the evidence of Panchafula (P. W. 1), Nana (P. W 2), Ramrao (P. W. 3), Anjani (P. W. 4) and Kesheo (P. W. 5), to hold not only that these witnesses had been the accused deliver the blows on the body of Anusuya, but that, ultimately the accused was caught red-handed with the knife in his hand. The knife is Art. 18, and it was identified by Kesheo (P. W. 5), who had snatched it from the hand of the accused. The knife is Art. 18, and it was identified by Kesheo (P. W. 5), who had snatched it from the hand of the accused. In the view that we have taken of this evidence, it is not necessary for us to consider the obvious cock and bull story given by the accused that he had seen somebody assaulting a woman; that out of humanitarian instincts he ran to rescue the woman and that when he went near her, he found that the woman was his own wife and that she was killed. 20. The important question, however, in this case, is in regard to the sentence. The trial Court gave a reason, viz. that the accused was not normal in his mind, and held that this was an extenuating circumstance for giving the punishment of imprisonment for life to the accused. Mr. Dharmadhikari; who appears for the State, contends that this sentence has riot been given by the learned trial Judge by exercising his discretion judicially. It is necessary in this case, to consider the exact manner in which the learned Sessions Judge considered that there were extenuating circumstances in the present case. 21. In paragraphs 48, 49, 50 and 51, the learned Sessions Judge considers this point in his judgment. In paragraph 48, the learned Sessions Judge holds that the acts of the accused had been brutal and barbarous and extremely revolting. But he then observes as follows :- …..”The fact, however, remains that unless the mind or the accused was extremely agitated and disturbed for some reason or the other not disclosed in evidence, that accused would not have embarked upon the barbarous perpetration of the crime." He further observes that it appeared to him that even though it was an act of sheer brutality of the accused, the circumstances in which the act was committed, were such that he must have been very much disturbed and agitated in his mind due to the desertion by his wife along with her children. In paragraph 49, the learned Sessions Judge refers to a decision of the Rangoon High Court, Nga Po Swa v. Emperor,1 to hold that when there was no clear evidence of any strong motive for the offence, except the fact that it appeared to the learned Judge, that the accused was in an abnormal mood when he committed the offence, the extreme penalty was not called for. The learned Sessions Judge thereafter refers to Mitha v. Emperor2 to hold that the sheer brutality of the assault in the absence of any provocation was a circumstance which would lead to the inference that the mind of the accused was in fact unhinged and far from normal. Under these circumstances, while upholding the conviction of the accused under section 302 of the Indian Penal Code" the learned Judges held that it was not a case in which capital sentence should be imposed. These observations of the learned Judges of the Lahore High Court have been relied upon by the learned Sessions Judge in support of his conclusion ~hat there was an extenuating circumstance in the instant case by reason of the brutality being exercised by the accused. Ultimately, the learned Judge holds that the conclusion is irresistible that the mind of the accused was far from normal and hence he indulged in the brutal act of murder. Lastly, the learned Judge holds that the failure on the part of the prosecution to show the exact circumstances agitating accuseds mind at the relevant time was, in his opinion, an extenuating circumstance which should weigh against imposing the maximum penalty of death. 22. The reason why the discretion was exercised by the learned trial Judge in imposing the lesser of the two sentences falls into two aspects. Firstly, the learned Sessions Judge holds that there was a failure on the part of the prosecution to prove an immediate motive strong enough to impel the accused to do this act and that it was itself an extenuating circumstance. The second aspect of the case is that if a man acts with utter brutality without provocation, then an inference could be raised that his mind was unhinged. We are of opinion that these assumptions are taken up by the learned Judge dissociated from the facts of the particular cases in which those assumptions were made. The second aspect of the case is that if a man acts with utter brutality without provocation, then an inference could be raised that his mind was unhinged. We are of opinion that these assumptions are taken up by the learned Judge dissociated from the facts of the particular cases in which those assumptions were made. Reliance was placed particularly on the Lahore case, Mitha v. Emperor in regard to the sheer brutality lea1ing to an inference that the mind was unhinged. The facts of that case, however, disclose that there were circumstances on which the learned Judges came to the conclusion that an inference regarding unsoundness of mind must be raised. This was a case of a person murdering his two children and the evidence led by the prosecution had established that he was a loving father. It was also held proved on evidence that the mind of the accused was unsound, but it could not be said with any degree of certainty that he knew that what he was doing was wrong or contrary to the law within the meaning of section 84, I.P.C. On these two established facts, viz. that the accused was of an unsound mind and that he was a loving father, an inference was raised that the fact that he kills hill own children whom he loved, must lead to an inference that the mind of the accused must have been unhinged. We are of opinion that this inference or assumption, that is raised in that case, is based on the facts of that case and that there is nothing common between the facts of that case" which led to the inference being raised and the facts of the present case. 23. In the instant case we cannot ignore two circumstances, firstly, that for a period of about three months the wife had deserted the husband and she had also taken her four children with her. The second circumstance that we cannot forget is that an allegation was made by the wife that her husband had asked her to follow an immoral profession for the purpose of earning money to support the family. We cannot, in these two circumstances, hold that the husband had continued to be a loving husband. The second circumstance that we cannot forget is that an allegation was made by the wife that her husband had asked her to follow an immoral profession for the purpose of earning money to support the family. We cannot, in these two circumstances, hold that the husband had continued to be a loving husband. In view of these two circumstances, we are of opinion that the facts of the instant case distinguish it entirely from the facts of the Lahore case and that the learned Sessions Judge was certainly not justified in applying the analogy of the Lahore case to the facts of the instant case. 24. The second circumstance on which reliance is placed by the learned Judge to hold that an irresistible inference arises that the mind of the accused was far from normal and that he then indulged in the brutal not of murder i8 more or less speculative. There is no evidence which would establish that the accuseds mind was far from normal. It has not been shown by the prosecution, nor has any material been elicited by the accused, to hold that the accuseds mind was in any way affected. In the absence of any such circumstance or evidence, we are of opinion that this inference raised by the learned Session Judge that the mind of the accused was far from normal is a speculation and has no reference to the facts of the case. It is undoubtedly true that a man does not commit murder of his wife unless his mind is agitated. But the agitation of the mind does not necessarily lead to an inference that it had affected his mental capacity so as to lead to an inference that the mind was unhinged or had become unsound. 25. The learned counsel for the accused contended that the fact that the, prosecution had failed to prove any motive had a substantial bearing on the point under consideration. His argument was that the accuseds defence had necessarily to be considered by us before we could come to a conclusion whether the act of immorality, which is imputed to the deceased, was at the suggestion of the aoou8ed or at the suggestion of her brother Sadhu. His argument was that the accuseds defence had necessarily to be considered by us before we could come to a conclusion whether the act of immorality, which is imputed to the deceased, was at the suggestion of the aoou8ed or at the suggestion of her brother Sadhu. If the suggestion had come from Sadhu and the accuseds story is true that his wife had gone astray on account of the insinuation or persistent persuasion of Sadhu, then there would be reason to hold that the accused could have some disturbance of his mind not brought about by his own actions. It is, therefore, necessary to consider the story given by the accused and the story given by the prosecution witnesses in regard to these insinuations regarding the immoral life. On this point Panchfula (P.W. 1) states as follows: (Para 4 of her deposition) "…Anusuya had told me that she was very troubled by her husbands persistent demand of money. She also told me that the accused demanded and asked her to procure the same even by immoral means. She also told me that she told her husband that it was not possible for her to do as her husband asked her to do because she has five brothers living in the same locality… " Similar is the statement made by Anjani (P. W. 4). We have already given the accuseds story. The question is whether we should reject the story given by the prosecution witnesses Panchafula (P. W. 1) and Anjani (P. W. 4) and accept the story given by the accused in his statement under section 342 of the Criminal Procedure Code. The statements of these two prosecution witnesses were, however, challenged on the ground that they did not appear to be natural, nor inconformity, with the ordinary notions of females in any society. 26. Mr. Kamlakar urged that, if a married woman were asked by her husband to follow an immoral profession, she would flatly refuse to do so not because she has gat brothers who are living in the same locality, but because the act itself is abhorrent. Mr. Kamlakar, therefore, contended that this evidence of these two females, viz. Panchafula and Anjani, appeared to be artificial, as it gave a ground which would certainly not be a proper ground far the refusal by Anusuya. Mr. Kamlakar, therefore, contended that this evidence of these two females, viz. Panchafula and Anjani, appeared to be artificial, as it gave a ground which would certainly not be a proper ground far the refusal by Anusuya. We are not in a position to know the circumstances in which this statement was made by Anusuya. But we do not think that the statement is so unnatural as to lead us to hold that this statement was not made by Anusuya to any of these two female witnesses. One fact stands ant, viz. that far same time before this incident the deceased had gone to the house of her brother and she had also brought her children with her. We have, in this connection, to can slider the background of the family life of the accused and the deceased. The deceased was about eighteen years old when she married the accused and she lived as the wife of the accused far a period of about fourteen years and bore four children before she left the house of her husband along with her children. Ordinarily, no woman leaves the house of her husband unless there is same reason far it. The accused-husband had suggested a reason. But this reason also has to do with the immoral life of the deceased. The husbands story is that the suggestion came from her brother Sadhu that she should lead an immoral life in order that it should bring monies to them. The question, therefore, that arises is whether the suggestion that the wife should lead an immoral life and earn monies was made by the accused-husband as stated by the two prosecution witnesses, or whether the suggestion had came from her brother Sadhu, as stated by the accused. 27. On this paint an important fact is admitted by the accused himself. In his statement under section 342 of the Criminal Procedure Code, the accused admits that his economic condition had deteriorated about a year before this incident took place. 27. On this paint an important fact is admitted by the accused himself. In his statement under section 342 of the Criminal Procedure Code, the accused admits that his economic condition had deteriorated about a year before this incident took place. There is nothing and record to show that the condition of the brothers of the deceased was so far deteriorated that they were not in a position to earn anything far themselves and had necessarily to ask their only sister to lead the life of immorality and to earn money far their livelihood, To us it appears that the circumstances, which are established by the prosecution, viz. the desertion by the wife along with the four children and the admission by the accused that his condition had deteriorated about a year before this incident took place, give support to the story given by the two prosecution witnesses that the suggestion must have came from the accused. 28. We are further of opinion that no. wife would normally impute such a motive to her husband unless it were true. Anusuya, during her life time, would certainly not have disclosed such a reason to the wife of her brother unless the reason were true and she had gat disgusted with the persistent conduct of the accused to ask her to lead an immoral life. Her disgust is reflected in her leaving the house of the husband along with her four children. We are of opinion that there is no. circumstance which would lead us to hold that the story given by these two witnesses in regard to what Anusuya had told them during her lifetime is not true. 29. This fact is then established by the prosecution that it was the accused who was calling upon his wife to lead an immoral life and that she had not only: refused to lead an immoral life, but that she had left the house of her husband ,and had gone to live with her brother along with her four children. 29. This fact is then established by the prosecution that it was the accused who was calling upon his wife to lead an immoral life and that she had not only: refused to lead an immoral life, but that she had left the house of her husband ,and had gone to live with her brother along with her four children. The prosecution, therefore, upon this evidence established that the accused had not grievance against the deceased, because she had refused to do what he had;: asked her to do, and in the bargain had left his house altogether., This according to us, was a sufficient motive for a man to brood upon for a period of about three months luring which his wife was living away from him. It cannot, therefore, be held that there was no motive, or that there was not provocation at all given by the wife to the husband, for this drastic action. It may be that such incidents do not playa large part in the life of some persona. But we cannot hold that they are not likely to play such a large part in the life of any man whatsoever. In certain circumstances, such an act will be a" sufficient motive, and we are of opinion, that the prosecution has not failed to prove a motive. 30. In this connection, we may point out that this particular factor that there was a motive distinguishes this case clearly from the facts of the Lahore case, Mitha v. Emperor. The observations of the learned Judges are prefaced by the words "in the absence of any provocation, sheer brutality. of assault would lead to an inference etc." We, therefore, hold that the learned Sessions Judge has speculatively held that the accuseds mind was disturbed and that it was so far agitated that it would amount to an extenuating circumstance for not imposing the capital punishment, 31. of assault would lead to an inference etc." We, therefore, hold that the learned Sessions Judge has speculatively held that the accuseds mind was disturbed and that it was so far agitated that it would amount to an extenuating circumstance for not imposing the capital punishment, 31. The facts established by the prosecution, therefore, are: (1) that the financial circumstances of the accused bad deteriorated about a year before this incident; (2) that the accused was calling upon his wife, who had already borne four children from him, to lead an immoral life to earn money to give it to him; (3) that the wife refused to do so and left the house of her husband about three months before this incident; and (4) that, on the day of the incident, the accused had come with a knife in his hand to the bazar, and, upon the sight of the deceased along with others, he rushed at the deceased and gave blows with it on vital parts of her body taking out the intestines in the process. We are of opinion that these circumstances are serious enough to show that, there could be no extenuating circumstance in the case of this accused for being considered for a sympathetic view in regard to the sentence. 32. Mr. Kamlakar then urged that a discretion lay in the learned Sessions, Judge in the matter of sentence. That discretion was exercised by the learned Judge and that the discretion having been exercised, we should not lightly discard that discretion. He then referred to a decision of the Supreme Court in. Alamgir v. State of Bihar3 in support of his contention. Their Lordships of the Supreme Court were dealing with a case where the High Court had! enhanced the sentence given by the lower Court and an appeal was filed by the accused before the Supreme Court. Their Lordships dealing with the question, of sentence in regard to the conviction under section 498 of the Indian Penal Code held that they were satisfied that the High Court was not justified in:, directing appellant no. 1 to suffer rigorous imprisonment for six months by way of enhancement of sentence. Their Lordships dealing with the question, of sentence in regard to the conviction under section 498 of the Indian Penal Code held that they were satisfied that the High Court was not justified in:, directing appellant no. 1 to suffer rigorous imprisonment for six months by way of enhancement of sentence. Their Lordships observed that the High Court undoubtedly has jurisdiction to enhance such sentence under s. 439, Criminal Procedure Code, but this jurisdiction can be properly exercised only if the High Court is satisfied that the sentence imposed by the trial Judge is unduly lenient, or, that, in passing the order of sentence, the trial Judge had manifestly failed to consider the relevant facts. In this case their Lordships of tile Supreme Court were considering the adequacy of the sentence where there was ample latitude for a higher sentence or a lesser sentence. The point, however, before us is not a question of adequacy of sentence, but it is a case of an alternative only. There are only two sentences for an offence of murder, (1) death and (2) imprisonment for life, and the normal rules of adequacy of sentence, therefore, would not apply, because there is no latitude in regard to adequacy of sentence. This question, however, in regard to the sentence was twice dealt with by two Division Benches of this Court, once in State v. Airarsing4 and, on the second occasion, in State v. Panduranj5 On both the occasions, the learned Judges were considering a sentence for murder under section 302 of the Indian Penal Code. Mr. Justice Shah (as he then was) in considering the alternative sentence observed as follows (in A. I. R. 1935 Bom. 231): …..“If we were called upon to try this case, we have no doubt that we would have imposed, if we were satisfied of the truth of the prosecution evidence, the death sentence. "But the learned Sessions Judge having exercised the discretion, which indisputably is vested in him, this Court would not be justified in interfering with the exercise of that discretion unless it is found that the exercise of discretion is perverse or in fact no discretion whatever has been exercised." 33. "But the learned Sessions Judge having exercised the discretion, which indisputably is vested in him, this Court would not be justified in interfering with the exercise of that discretion unless it is found that the exercise of discretion is perverse or in fact no discretion whatever has been exercised." 33. In dealing with the same point in State v. Panaurang the same learned Judge observed as follows:- "When an accused person is convicted of an offence of murder the normal sentence to be imposed is the sentence of death. If the Sessions Court does not impose the sentence of death, reasons must be assigned for not imposing that sentence. It is true that there is a certain amount of discretion vested in the Court of first instance to impose or not to impose the death sentence. But the discretion must be judicially exercised. If there are circumstances which in the view of the Court of Sessions justify it in not imposing the death sentence, normally the High Court would not interfere with the exercise of that discretion". Dealing with the facts of that case, however, the learned Judge observes further as follows:- "But, in the present case, in our view, there appears to be no exercise whatever of the discretion vested in the trial Court. The learned Sessions Judge has himself pointed out that the offence was committed in broad daylight and it was a calculated coldblooded and pre-meditated murder." The learned Judge thereafter dealt with the question of sentence on merits. But these two decisions of the Division Bench of this Court have laid down that if it appears to this Court that the discretion has been exercised perversely of that the discretion has not at all been exercised, then this Court has the right to interfere in the matter of sentence. 34. We have earlier pointed out that it is clear to us that the learned Sessions Judge has given reasons which appear to ns to be more or less speculative. In fact, the learned Judge has, in various earlier paragraphs found certain facts which he should have considered in the matter of sentence. 34. We have earlier pointed out that it is clear to us that the learned Sessions Judge has given reasons which appear to ns to be more or less speculative. In fact, the learned Judge has, in various earlier paragraphs found certain facts which he should have considered in the matter of sentence. , In paragraph 45, while dealing with the defence of the accused, the learned Judge, observes as follows:- "The act was clearly premeditated." In paragraph 48, while considering the question of sentence the learned Judge observed as follows:- "True that the acts of the accused had been brutal and barbarous and extremely revolting." Having come to the conclusion that the act was pre-meditated and that the acts were also brutal, barbarous and extremely revolting, the learned Judge should have taken these facts into consideration while exercising his discretion. Instead of taking these facts into consideration, the learned Judge proceeded to go on a speculative reason that the mind of the accused had got unhinged. We have earlier pointed out that there is no evidence in support of this finding of the learned Judge that the mind of the accused was unhinged or was in any way unsound. We are, therefore, of opinion that in the present case, the learned Judge, not having taken the necessary facts into consideration, or having relied upon reasons which are more or less speculative, has not exercised the discretion at all. It is, therefore, necessary for us to exercise the discretion. 45.The next question that arises is about the sentence of death. 36. Mr. Kamlakar urged that after the amendment of section 367 (5) of, the Criminal Procedure Code, there is no obligation upon the Court after holding an accused guilty under section 302, I. P. C. to impose a death sentence in preference to the sentence for imprisonment for life. Before the amendment of section 367 (5) in 1956, the section read as follows: "367.-(5). Before the amendment of section 367 (5) in 1956, the section read as follows: "367.-(5). If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed." A view was taken consistent with section 367, that sub-section (5) thereof entailed that the sentence of death was a primary sentence in regard to the offence of murder and that, if the said sentence was not imposed, there was an obligation upon the Judge to explain why. The decisions have consistently taken the view that the sentence of imprisonment for life is a lesser sentence than the sentence of death. These two facts considered together, viz. that the sentence of death is a higher punishment and that the reasons have got to be given in the judgment by the Judge giving a lesser sentence why the death sentence is not imposed, were held to lead to an inference that the capital sentence was the main punishment for death. Mr. Kamlakar urged that in 1956 this particular provision of sub-section (5) of section 367, Cr. P. C. was omitted from the Criminal Procedure Code and this would only be the result of the Legislature having intended, that there was no obligation upon the Court to consider capital sentence as the primary punishment for murder. In other words, the two sentences, one of death and the other of imprisonment for life, were coordinate sentences and that either could be given without giving any reasons for the same. The question is whether the amendment of section 367 (5) was intended for this reason and it has to be so carried out. 37. On this point decisions of the two High Courts were brought to our notice. The Allahabad High Court in an earlier decision Satya Vir v. State did not decide this point but doubted the correctness of the argument of the counsel to the following effect:- "The assumption that the sentence of death was the normal penalty for murder and imprisonment for life the exception which had to be justified by some reason, was based on the law as embodied in sub-s. (5) of s. 367, Cr. P. C. before its repeal by the Code of Criminal Procedure Amendment Act, 26 of 1955 with effect from 1-1-1956. P. C. before its repeal by the Code of Criminal Procedure Amendment Act, 26 of 1955 with effect from 1-1-1956. Since the omission of that sub-section, the question of proper sentence where the accused is convicted of an offence punishable with death is to be decided, not on any assumption of that nature, but like any other point for determination with the decision thereon and the reasons for the decision, as provided by sub-so (1) of that section." The same High Court, however, in a later decision dispelled this argument. In Ram Singh v. State7 the learned Judges considered the same point and in paragraph 10, the learned Judges observed as follows:- "We do not think that the amendment of s. 367, Cr. P. C. affects the law regulating punishment under the Penal Code. This amendment related 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 in preferring the lesser punishment. A Court may record no reason for not passing the death sentence, but if it awards life imprisonment for a cold-blooded and revolting murder the absence of reasons will not save its preference from being unjudicial." 38. The Madras High Court, dealing with the same question in In re Veluchami Thevar8 observed as follows:- "With regard to the sentence, we are constrained to observe that the learned. Sessions Judge has given no reasons for imposing the lesser sentence in paragraph 49 of his judgment, though in paragraph 45 he expresses the view that the appellant had the excuse that he was wounded in his tenderest feeling by his wifes ultimate confession. Unfortunately, the State has preferred no revision upon the matter of sentence and we hence feel most reluctant to interfere. Unfortunately, the State has preferred no revision upon the matter of sentence and we hence feel most reluctant to interfere. But, in the interest of justice, we are constrained to point out that this is a case in which the extreme penalty of the law definitely appears to be called for." (Para 7) While dealing with the question of the amendment of the Criminal Procedure; Code by deleting sub-section (5) of section 367, the learned Judges observed as follows at page 49:- "…..We are making these observations because we wish to make it very clear for the guidance of courts of trial, that while there is judicial discretion vested in Sessions Judges to award the lesser penalty in a case of murder and the Criminal Procedure Code, as now amended, does not require reasons to be stated, this does not mean that any special pleading or formal excuse should displace such properly bestowed judicial discretion and thought. It is the duty of the courts to award the extreme penalty of the law, for purposes of deterrence, in all cases of murder, where the crime is deliberate and there are not extenuating features." 39. The later decision of the Allahabad High Court in Ram Singh v., State and the decision of the Madras High Court, In re Veluchami Thevar have taken a clear view that the amendment of section 367 (5) of the Criminal Procedure Code has made no difference in the matter of sentence for an offence of murder under section 302 of the Indian Penal Code. 40. In V. Thevar v. State of Madras9 their Lordships had to deal with the question of sentence under section 302 of the Indian Penal Code, and the observations of their Lordships, in paragraph 13 at page 619, are as follows;- " ... If the court is convinced about the truth of the prosecution story, conviction has to follow. The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law……. If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law……. The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any extenuating circumstances." Their Lordships clearly laid down that unless there are extenuating circumstances, the punishment for murder should be death, and not imprisonment for life. This case was in relation to an offence which was committed before the Criminal Procedure Code Amendment Act, 26 of 1955 wail enacted. The question is whether this decision would prevail even after the amendment. We are of opinion that these observations would prevail in spite of the amendment. 41. The amendment, in our opinion, does not affect the question regarding the exercise of the discretion. Section 367 (5), Cr. P. C. before amendment laid down what the Judge should state in his judgment after a particular decision is taken. In regard to the exercise of the discretion section 367 (5), as it stood before amendment, did not offer any guidance. If guidance was not offered by the section as it stood before amendment, the deletion by amendment could not affect the exercise of discretion. 42. A discretion has to be exercised judicially. It must also appear that it is so exercised. This can be done if reasons for the exercise of the discretion are given in the order exercising the discretion. Whether the statute requires it or not reasons have to be given. The section could therefore have no relevance on the decision itself. We are in agreement with the learned Judges of the Madras and Allahabad High Courts on this point. 43. The observations of the Supreme Court in V. Thevar v. State of Madra8 give the necessary guidance. The Supreme Court has clearly laid down that except in cases where there are extenuating circumstances, the normal punishment for the offence of murder under section 302 of the Indian Penal Code, is death. We cannot, therefore, agree with the argument advanced by Mr. Kamlakar that after the amendment of section 357(5) of the Criminal Procedure Code, a change is brought about in the exercise of the discretion by the courts in regard to the alternative sentence under section 302 of the Indian Penal Code. 44. We cannot, therefore, agree with the argument advanced by Mr. Kamlakar that after the amendment of section 357(5) of the Criminal Procedure Code, a change is brought about in the exercise of the discretion by the courts in regard to the alternative sentence under section 302 of the Indian Penal Code. 44. The last question is whether there are any extenuating circumstances in the present case. We are of opinion that there are none. On the contrary, the circumstances appear to us to be rather aggravated. No man should ordinarily call upon his wife to earn money for him by living a life of immorality. The wife was justified in refusing this request. She was also justified in refusing to live with her husband who had asked her to lead an immoral life for the purpose of earning money for him. 45. The accused, therefore, asked his wife to do something, which no wife should be asked to do and no wife would willingly do. He brought a refusal up or himself and, naturally, must have been brooding. The entire evidence discloses no other circumstances which would lead the accused to do this act. There was no other provocation which was given by the deceased to the accused which would have justified the accused doing even a little harm to his wife. She left the house for a justifiable reason. She refused to do something which a wife should refuse to do every time. The refusal, therefore, which was brought about in a righteous manner, did not give any provocation to the husband to cause any harm to the woman, let alone her death. 46. The manner in which the death was caused is also well expressed by the learned Sessions Judge as cruel, barbarous and extremely revolting. In broad day-light this man comes with a knife in his hand, with a blade 8 inches long. He runs after his wife immediately upon seeing her, catches hold of her by her hair and then goes on delivering blows one after the other. Twice he wall hampered in this by one of the witnesses who wanted to save the woman, but the accused pushed him away and continued his barbarous act. The woman died on the spot. In our opinion, there are no extenuating circumstances at all in this case. 47. Mr. Twice he wall hampered in this by one of the witnesses who wanted to save the woman, but the accused pushed him away and continued his barbarous act. The woman died on the spot. In our opinion, there are no extenuating circumstances at all in this case. 47. Mr. Kamlakar urged that the children now left behind would be orphans if we direct the death penalty for the accused. That, in our opinion, cannot be a consideration for sympathy to be extended to the accused. All our sympathies are with the children. But we are of opinion that we can do nothing for them in this matter. Saving the life of this man, in our opinion, would be putting him in jail for a period of about not less than 15 years. The youngest child is about three years old. By the time this man comes out, the youngest child will have attained sufficient maturity to earn his livelihood. This man, therefore, is useless to them for all purposes. Whether we give him the sentence of imprisonment for life or the sentence of death, will be of no consequence to them. We are, therefore, of opinion that it is necessary to interfere with the discretion exercised by the learned Sessions Judge in granting him the sentence of imprisonment for life. 48. Mr. Dharmadhikari, who appears for the State also states that the fine imposed should be set aside. The sentence of fine is set aside. 49. We, therefore, allow the revision application and make the rule absolute. We confirm the order of conviction of the accused-opponent Gouri shankar under section 302 of the Indian Penal Code passed by the learned Sessions Judge, but alter the sentence of imprisonment for life and a fine of Rs.300 imposed by him on the accused there under, to a sentence of death. We direct that the accused be hanged by the neck till he is dead. Accused sentenced to death.