JUDGMENT - D.M. REGE, J.:---Under Confirmation Case No. 2 of 1975 the Additional Sessions Judge, Greater Bombay, has sought confirmation of the death sentence awarded by him to the accused while holding him guilty under section 302 of the Indian Penal Code. Criminal Appeal No. 1051 of 1975 is by the accused against the order of his conviction and sentence. It will be proper to deal with the appeal of the accused against his conviction first before dealing with the confirmation case. 2. The accused in this case, on Hyderkhan Lalkhan was charged under section 302 of the Indian Penal Code for having committed, during the night of 3rd and 4th August, 1974, the murder of one Chutkhan Shankhan. It was the prosecution case that on the night of 3rd and 4th August, 1974, the deceased Chutkhan was going to his residence at Bandra near old Railway Quarters at Khar. To reach that place he had to go by Swami Vivekanand Road and then turn near an Irani Hotel to the East in order to go to Kher Nagar, Bandra (East). On the way, he had halted near one Punjab Alamgir Hotel for the purchase of cigarettes. At that time the accused had come there from behind and stabbed him on his arm. Then as he turned, the accused stabbed him on his chest and abdomen. Thereafter the accused had gone by the opposite lane while the said Chutkhan, after walking a few paces, had stopped a taxi, got into it and gone to K.E.M. Hospital. At the K.E.M. Hospital he was taken by a Police Constable stationed there to the out patient department, casualty ward. Dr. (Miss) Munshi who examined him had recorded the necessary information in the register as well as the condition of the patient and he was immediately admitted to the emergency ward No. 20 at the hospital. The said Police Constable after making a record in the register of the information received, sent a telephone to the Bandra Police Station. Before that at Bandra Police Station some information as to the occurrence near Punjab Hotel was received and, therefore, S.I. Kamat had already proceeded to the scene. As he did not find anything on the spot, he had telephoned to the Bandra Police Station and learnt about the message sent by the Constable from the hospital. Before that at Bandra Police Station some information as to the occurrence near Punjab Hotel was received and, therefore, S.I. Kamat had already proceeded to the scene. As he did not find anything on the spot, he had telephoned to the Bandra Police Station and learnt about the message sent by the Constable from the hospital. He, accordingly, came to the K.E.M. Hospital and saw the injured person at ward No. 20. After making inquiries with the injured person as well as from the doctor as to whether he was in a position to make a statement the P.S.I. had, with the permission of the doctor, recorded the statement of Chutkhan, at about 2 a.m. on 4th August, 1974. In the meantime, the deceased was operated upon. On 4th August, 1974, at about 1.30 p.m., with the permission of Dr. Mehendale, the Assistant Inspector Desai also had recorded the statement of the deceased. Again on the 6th August, 1974, at 12-10 am., the Hon Metropolitan Magistrate one Patil, had also, with the previous permission of the doctor and after ascertaining from the doctor that the injured was in a position to make a statement, recorded his statement in question and answer form and had obtained an endorsement of Dr. Pinto (P.W. 8) thereon. However, inspite of the operation, the injured succumbed to the injuries on the 7th August, 1974. The accused was arrested on 4th August, 1974 itself while he was found sleeping on a Bench at Dahisar Station. 3. Post-mortem examination of the deceased revealed the following external as well as internal injuries. The external injuries found were : "(1) Incised wound anterior abdominal wall 7" in length peritoneal deep well sutured. The same stab wound was extended by 1" during laparotomy. The wound is ¼" away from the midline to the right and extending upto the umbilicus. (2 Incised wound in left hypochondriac region below the 12th rip 2" in length extending to the back and going upwards backwards and laterally. It was muscle deep. (3) Inside wound in the hypogastric region on the left side of the midline peritioneal deep 1" in length oblique and going down-wards towards the midline. (4) Incised wound in right parasternal area 2" below the right clavicle 2" in length muscle deep. It was muscle deep. (3) Inside wound in the hypogastric region on the left side of the midline peritioneal deep 1" in length oblique and going down-wards towards the midline. (4) Incised wound in right parasternal area 2" below the right clavicle 2" in length muscle deep. (5) 3 wounds on left arm muscle deep, 2 wounds on the medial aspect, one oblique at the middle of the arm, 2" in length another below the oblique wound in length. On the lateral side of the arm there was on oblique wound 2" in length". 4. There was only one corresponding internal injury to injury No. 1. There was no corresponding internal injury to other external injuries. 5. The accused was charged for offence under section 302 of the Indian Penal Code and tried at the Sessions. 6. At the trial the prosecution relied upon the evidence of three witnesses who were alleged to be eye-witnesses, viz., Safiquala (P.W. 2). Premsingh Shersingh (P.W. 3) and Mahomed Ibrahim (P.W. 4) as well as on as many as 4 dying declarations viz., (1) a statement made by the deceased to Constable Mandavkar (P.W. 14) on duty at the hospital (Ex. 23); (2) a statement made by the deceased to S.I. Kamath (P.W. 21); being Ex. 37, made at 2 a.m. on 4th August, 1974; (3) a statement made to the Assistant Inspector of Police Desai (P.W. 22) at 1-30 p.m. on 4th August, 1974, being Ex. 43, and lastly (4) a dying declaration made by the deceased to the Hon, Metropolitan Magistrate Patil (P.W. 11) on 6th August, 1974 at about 11.40 a.m., being Ex. A-24. 7. The accused denied his contention with the crime. According to him, he and the deceased were working in a garage when the employer had dismissed the deceased and since then the deceased had been bearing a grudge against him. According to him, the deceased had earlier lodged a false complaint against him and that he was in no way concerned with the offence committed against the deceased. He, however, admitted that he resided in the lane at Khar with one Sultana near the place of the occurrence. 8. At the trial one of the eye-witnesses, viz. Mohomed Ibrahim had turned hostile. The learned Additional Sessions Judge did not accept the evidence of the other eye-witness Premsingh, as reliable. He, however, admitted that he resided in the lane at Khar with one Sultana near the place of the occurrence. 8. At the trial one of the eye-witnesses, viz. Mohomed Ibrahim had turned hostile. The learned Additional Sessions Judge did not accept the evidence of the other eye-witness Premsingh, as reliable. He, however, relied on the dying declarations or statements made by the deceased to : (1) S.I. Kamath (P.W. 21), being Exh. 37; (2) Assistant Inspector of Police Desai, (P.W. 22), being Exh. 43; and (3) the Hon. Metropolitan Magistrate Patil (P.W. 11), being Exh. A-24. He also for that purpose found corroboration in the evidence of Safiqula (P.W. 2) whose evidence he believed. Relying on the said dying declarations, particularly, the one made to Asstt. Inspector of Police, being Exh. 43, and on the evidence of Safiquala (P.W. 2), as a corroboration, he convicted the accused of the charge under section 302 and also awarded him a sentence of death which has come for confirmation before us. 9. Dealing with the appeal against the conviction on charge under section 302 I.P.C., the learned Counsel for the accused has strongly attacked the several dying declaration alleged to have been made by the deceased to the persons mentioned above, as unreliable and concocted. 10. Before considering the said contention, we may refer to the following observations of the Supreme Court in the case of (Lallubhai Devchand Shah others v. The State of Gujarat)1, 1972 S.C. 1776 which followed its decision in (Khushal Rao v. The State of Bombay)2, A.I.R. 1958 S.C. 22 on the question of the Courts duty before basing the conviction on the dying declaration. The observations were : "A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding fact and circumstances of the case, bearing in mind, on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent persons falsely. See Khushal Rao v. The State of Bombay. See Khushal Rao v. The State of Bombay. If the Court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the convict the accused on its basis without any independent corroboration." Similar observations are to be found in the case of (Thurukanni Pompiah v. State of Mysore)3, A.I.R. 1965 S.C. 939. It is, therefore, well-settled now that, as regards the dying declaration, it is the duty of the Court to first find out, looking to the circumstances of the case, whether the dying declaration, on which reliance is sought to be placed by the prosecution, was truthful or reliable and that if the Court came to the conclusion, on scrutinising the dying declaration carefully, that it was truthful and reliable, then the Court can without any further corroboration convict the accused on the dying declaration only. 11. In the light of the above observations, it would, therefore, be proper to firstly see how far the dying declarations relied upon by the prosecution can be, under the circumstances, considered to be truthful or reliable. It is not necessary to consider the veracity or otherwise of the information recorded by the Police Constable Mandavkar (P.W. 14) at the K.E.M. Hospital in his diary, Exh. 23, as coming from the deceased, as by no stretch can it be considered to be a dying declaration or as statement of the deceased recorded by the said constable. Rightly enough, the learned Additional Sessions Judge as well has not relied upon the same. 12. The second statement of the deceased is at Exh. 37. The same is alleged to have been made by the deceased to the Sub-Inspector Kamath at 2.00 a.m. on 4th August, 1974 which would be within a short time after the deceased was admitted to the hospital and admittedly before any one else had any occasion to visit the deceased. The said statement at Exh. 37 is to the following effect: "I reside on the above address with my mother, sister and sister-in-law. I now one Hyder and he is working as a pimp with Smt. Sultania at Old Khar. As I was a witness in the murder case in which Sherulla was killed, since I had given evidence in the said murder case, Hyder was threatening me of assault. I now one Hyder and he is working as a pimp with Smt. Sultania at Old Khar. As I was a witness in the murder case in which Sherulla was killed, since I had given evidence in the said murder case, Hyder was threatening me of assault. On 3rd August, 1974 at about 10-00 p.m. I was returning home along S.V. Road, Bandra. When I came near Irani Hotel at Old Khar, the said Hyder all of a sudden attacked me with knife for three times. I sustained injury on my abdomen chest and on middle of my stomach. Hyder then ran away. I then engaged a taxi and came to K.E.M. Hospital. I was admitted." The said statement was recorded by Sub-Inspector Kamath after ascertaining from Dr. Bhide that the deceased was in a fit condition to make a statement. 13. The evidence of Dr. Bhide (P.W. 9) shows that when the deceased was admitted to the hospital in this Ward No. 20, he had found on examination that the patient was conscious but rowdy. According to him, at that time he was not in a fit condition to make a statement, but after about an hour or so, he was in a fit condition to make a statement and that at 2-15 a.m., Sub-Inspector Kamath had approached him and asked his permission to record the statement which he had given. Dr. Bhide admitted his endorsement and signature on the said statement. 14. The evidence of Sub-Inspector Kamath shows that at the hospital he recorded the statement of the deceased and that Dr. Bhide had given him only 6 minutes to interrogate the deceased. The statement at Exh. 37, which may be considered to be the earliest in point of time and admittedly before anyone else had any occasion to meet the deceased at the hospital, unequivocally implicates the accused as the assailant. The accused has been properly and clearly described by name as well as in connection with some incident which was a subject matter of a different sessions case wherein, admittedly, the deceased had given evidence. 15. The learned Counsel for the accused Mrs. Ponda has attacked this statement as unreliable on three main grounds. The accused has been properly and clearly described by name as well as in connection with some incident which was a subject matter of a different sessions case wherein, admittedly, the deceased had given evidence. 15. The learned Counsel for the accused Mrs. Ponda has attacked this statement as unreliable on three main grounds. Firstly, she contended that there was likelihood of the deceased giving the name of the accused as the assailant because of admitted enmity between the two as mentioned by the deceased himself in the statement. Secondly, that apart from that it was possible that the deceased might be having a wrong impression as to his assailants and due to prior enmity he might have given the name of the accused as his assailant. Thirdly, if according to the deceased, the incident had taken place near Irani Hotel, then there was no evidence on record to show the position of light in front of the said hotel. All these arguments, in our view, have no substance. It cannot be disputed that there existed some enmity between the accused and the deceased. However, considering the time and the place at which the statement was made, the critical condition in which the deceased admittedly was at that time and the fact that the same was made before the deceased had any opportunity to meet any one else, it cannot be said either that the deceased had falsely named the accused as his assailant either through enmity or through any wrong impression. Although the deceased had described the place of incident as near an Irani Restaurant, his subsequent statements as well as the evidence of the eye-witness Safiqualla (P.W. 2), whose evidence has been accepted, would show that the actual place of assault was at the cigarette stall outside the Alamgir Hotel on the same road, where it has been shown on evidence there was more than sufficient light for the deceased to identify his assailant. The said contention of the learned Counsel for the accused has, therefore, no substance and on that grounds the statements of the deceased cannot be discarded as unreliable. The said statement was also attacked on the ground that it was not taken in the language of the accused nor was it taken in question and answer form but it was taken in the form of first information report. The said statement was also attacked on the ground that it was not taken in the language of the accused nor was it taken in question and answer form but it was taken in the form of first information report. The said grounds have also no substance. If the Court is otherwise satisfied, after scrutinising the said statement, that the same was truthful and reliable, the above grounds would not be sufficient to discard the same. 16. In our view the said statement is truthful and reliable and completely implicates the accused as the assailant. 17. The next statement is alleged to have been made by the deceased to the Assistant Inspector of Police, Desai (P.W. 22) at 1-30 p.m., on 4th August, 1974. The said statement is Exh. 43. It has been endorsed by Dr. Mehendale who was attending the patient that time. The said statement is as follows : "I am residing at the above mentioned address with my mother, sister, brother-in-law and the children of my sister for the past 5/6 years. Prior to our taking up residence there, I was staying at the Railway Chawl at Old Khar, since my childhood. I know one Hyder for the past 2-3 years. He is the nephew (sisters son) of one Sultana, who is running a brothel at Old Khar, and he is working as a pimp. He is staying in Sultanas brother. I also know one Hussain Pinjari for the past about 8/9 years. He is also staying at Old Khar and at some distance from the brother of Sultana. Hussain Pinjari is dealing in smuggled goods, which he brings from Daman. He is a fast friend of Hyder. Hussain Pinjari has a brother called Azim. In 1972, Azim and six others viz., Maruti, Subhash, Ankush, Pralhad, Kannaya and Ramesh had murdered one Sheroo Lala at Linking Road, Bandra. They were all arrested and tried before the Court of Sessions at Bombay. I was one of the witnesses against them at the trial and gave evidence against them at the trial and on conclusion of the trial Azim, Maruti and Ramesh were convicted and sentenced to imprisonment on the 3rd of last month. Maruti and Azim have since been released on bail by the Court, pending the hearing of their appeal against their conviction. Maruti and Azim have since been released on bail by the Court, pending the hearing of their appeal against their conviction. While the murder trial was on and before its commencement both Hussain Pinjari and Hyder used to approach me and request me to turn hostile against the prosecution, but I used to tell them that I would speak only the truth before the Court. They have, therefore, been bearing grudge against me and are on inimical terms with me. Because of this enmity they also used to threaten me that they would finish me. About 4 months back before the commencement of the murder trial Hyder had stabbed me on my face with a razor at Old Khar, over the same issue and on my complaint he was arrested by Bandra Police Station and was released on bail. About a month and half back, Hyder had again threatened me that he would finish me and hence I had lodged a complaint against Hyder at Bandra Police Station. Hyder and Hussain Pinjari also used to demand that I should not visit Old Khar. They had also instigated one Kala Topi who is staying at Khar and who was also witness in the murder trial and one Baboobhai who is accepting Matka best through his agents at Khar, against me an they had lodged false complaints against me at the Bandra Police Station. I have however no quarrel either the Kala Topi or with Baboobhai now. Yesterday in he evening I had gone to Railway Quarters at Khar to visit my relatives. While at the Railway Quarters I purchased liquor from a bootlegger and consumed it while chit-chatting with a friend called Noora near his house. I then met another friend called Siddique who is also a motor upholstered and who is residing at the Railway Chawl and was returning to my house being accompanied by him. We were walking along S.V. Road towards Old Khar. When we reached near Alamgir Hotel, I told Siddique to return home staying that I would purchase a cigarette and then go to my house. Siddique then left. I then went to the cigarette stall near the hotel and asked for half packet of Cavander cigarettes. We were walking along S.V. Road towards Old Khar. When we reached near Alamgir Hotel, I told Siddique to return home staying that I would purchase a cigarette and then go to my house. Siddique then left. I then went to the cigarette stall near the hotel and asked for half packet of Cavander cigarettes. As I was waiting for the cigarette, however, Hyder came from behind me from the direction of Sultanas brothel and having whipped out a clasp knife stabbed me with the same first on may hand. On seeing him stabbing me I turned to face him. However he thereupon gave me 3-4 more stab wounds on my chest and abdomen and ran away. I started bleeding from the injuries. I then walked a few paces towards the Irarni Hotel on the same road and having engaged a taxi came to K.E.M. Hospital where I was admitted for treatment. At the hospital a Constable asked me as to what had happened and I then told him that Hyder had stabbed me. The cigarette stall keeper and the owner Mohomedbhai of Alamgir Hotel were present when I was stabbed. Hyder is aged 24/25 yeas, medium built, taller than me, wheat complexioned and was wearing a pant and green shirt. I will be able to identify him. The knife with which I was stabbed was a clasp knife and was about 12" in length including the handle. There was enough light at the place as the lights in the cigarette stall and Alamgir Hotel as also the street lights were burning. I say that Hyder was alone when he stabbed me." 18. From the language used in the said statement and from the attempts it makes in setting out in detail not only the actual incident but also the past history of enmity, reading it as a whole, the said statement appears to us to be extremely artificial as a dying declaration. Looking to the condition in which the deceased was at that time, we also feel doubtful as to whether the deceased actually could have been able to make such a statement. Looking to the nature of the statement, therefore, we would hesitate in accepting the same as a truthful and a reliable dying declaration. 19. The third dying declaration is the one taken down by the Hon. Metropolitan Magistrate Mr. Patil (P.W. 11). Looking to the nature of the statement, therefore, we would hesitate in accepting the same as a truthful and a reliable dying declaration. 19. The third dying declaration is the one taken down by the Hon. Metropolitan Magistrate Mr. Patil (P.W. 11). The said dying declaration is at Exh. A-24. The said dying declaration shows that it was made by the deceased between 11.40 P.M. and 12.10 A.M. during the night between 6th and 7th August, 1974. It also bears the endorsement of Dr. Pinto (P.W. 8) certifying that though the patient at that time was in a critical condition, was conscious and was able to answer rationally. The said dying declaration has been taken in question and answer from after translating the same from Hindi to English and the deceased has admitted the same to be correct. It reads as under :--- "The question I asked and the answers I got from Chutkhan are recorded as under :--- Q. What is your name? A. Chutkhan. Q. Where do you stay? A. At Khar. Q. Do you know who am I? A. No. Here I told him that I was an Honorary Metropolitan Magistrate and told him that I have come here to record his statement. Q. What happened to you and how you have come to K.E.M.? A. Hyder stabbed me and then I hired a taxi and came to K.E.M. Hospital alone. Q. Why Hyder stabbed you? A. He stabbed me because I was a witness in Sherulla murder case and the accused were convicted. He (Hyder) has stabbed me over before the same reason. Q. With what weapon he stabbed you? A. With a 12" long knife. Q. What time this incident happened? A. At 10.00 p.m. on Saturday (3rd August, 1974). Q. Where did he stab you? A. He stabbed me in my chest, abdomen and left arm. Q. Where did this incident occur? A. Near Alamgir Hotel, Old Khar. Q. What were you doing there? A. I was returning home and had stopped to purchase cigarettes. Q. Where did you see Hyder at that time? A. I saw him coming from the other side of the road. Q. Why Hyder should stab you? A. Hyder is a friend of Azim who was convicted on my evidence and who has come on bail pending an appeal. Q. Who was present when you were stabbed? Q. Where did you see Hyder at that time? A. I saw him coming from the other side of the road. Q. Why Hyder should stab you? A. Hyder is a friend of Azim who was convicted on my evidence and who has come on bail pending an appeal. Q. Who was present when you were stabbed? A. Alamgir Hotelwala, Panwala, Premsing and Iba Charaswala. Q. Was anybody alone with Hyder? A. Hyder was alone when he stabbed. Q. What is Hyders business? A. He is a pimp. Q. Where does Hyder stay? A. At Khar in the house of Sultana. Q. Who is Sultana? A. She is conducting brothel." Here the suspect (Hyder) was brought in the ward by two plain dressed Constables and I asked Shri Chutkhan whether he knows any of these three men". When Chutkhan say Hyder coming near to his bed Chutkhan started pointed out his right hand which was in bandage at Hyder and cried :--- ^^;gh og HkMok gSnj ftlus eq>s pkdq ekjk Ék A blds igys Hkh eq>s blus ekjk Fkk ! lkyk jafMdk dekbZ [kk ds nknk cuk gS A** Then I asked Hyder whether he wants to ask any questions to Chutkhan and whether he knew this patient, upon which Hyder replies that he does not want to ask any questions to him and he knew him as Chutkhan. Then the two plain dressed Constables were told by me to take away Hyder and accordingly Hyder was taken away. I asked Chutkhan whether he can sign this statement upon which he told me that "he can sign." The said dying declaration has been recorded by the Magistrate in question and answer form, i.e., in the manner required of him to do. It sets out in detail the time, the place and the manner of assault and implicates the accused by his name as the assailant. Not only that, but it also show that at the end of the recording of the statement the accused was shown to him in the hospital and the deceased had in his choice language exhibited his identification of the accused as his assailant. 20. Not only that, but it also show that at the end of the recording of the statement the accused was shown to him in the hospital and the deceased had in his choice language exhibited his identification of the accused as his assailant. 20. The said statement has been attacked by the learned Counsel for the accused as untruthful and unreliable mainly on the ground that before the said statement was recorded which was about 3 days after the incident, admittedly, many people had seen the deceased at the hospital and therefore the deceased had sufficient opportunity to deliberate and falsely name the accused as his assailant. This ground of attack loses its force when one finds that even in the statement, made by the deceased to P.S.I. Kamath, within a very short time after the assault and admittedly even before the deceased had any opportunity of meeting any one else, the deceased had as well unequivocally named the accused as his assailant. In that case naming of the accused by the deceased as his assailant in his dying declaration before the Magistrate cannot be considered to be a result of deliberation falsely involving the accused as his assailant. 21. Further according to the learned Counsel for the accused, the deceased has made some improvement in this dying declaration from the previous statements by mentioning the names of two more persons as the persons present at the time of the incident. Admittedly, the deceased in his said dying declaration had added the names of Premsingh who was examined as a witness and one Iba Charawalla as the persons present although their names were not mentioned by him in his previous statement before Assistant Inspector of Police Desai. The mentioning of the names of the said two persons as being present at the time of the incident is a question of memory depending upon the time when and the circumstances under which the statement was made and would not necessarily show that the deceased was trying to make improvement in his case and would not show that the declaration was unreliable. In our view, on a very close and careful scrutiny of the dying declaration recorded by the Hon. Metropolitan Magistrate, we feel that the same is thoroughly reliable and it would be safe to act upon the same. 22. In our view, on a very close and careful scrutiny of the dying declaration recorded by the Hon. Metropolitan Magistrate, we feel that the same is thoroughly reliable and it would be safe to act upon the same. 22. The said two dying declarations (1) to P.S.I. Kamath and (2) to the Hon. Metropolitan Magistrate being truthful and reliable, it would be safe to act upon it without even seeking any further corroboration to the same. However, in this case, if any corroboration were needed to the said dying declarations, then there is the evidence of Safiqualla (P.W. 2), who was the owner of a pan stall, attached to Alamgir hotel, in front of which the incident had taken place. He was a natural witness. He has in his evidence deposed to the incident in very clear terms and nothing of material importance was pointed out to us to enable us to discard his evidence. In our view, therefore, the said dying declaration made by the deceased to the Sub-Inspector Kamath, being Exh. 37 and the one recorded by the Hon. Metropolitan Magistrate, being Exh. A-24, taken along with the evidence of the eye-witness, Safiqulla, conclusively shows that the accused had assaulted the deceased with a knife as a result of which the deceased had died. On the evidence, therefore, the prosecution could be said to have proved beyond reasonable doubt the charge against the accused. 23. That brings us to the consideration of the confirmation of death sentence given to the accused; which is the subject-matter of the Confirmation Case No. 2 to 1976. 24. While considering the question of sentence, the learned Additional Sessions Judge found no extenuating circumstance but on the other hand, found that the accused had committed murder of the deceased because the deceased had refused to oblige the accused by turning hostile in one Sessions Case No. 204 of 1973, in which one Azim, alleged to be the brother of one Hussein Pinjari, who was the friend of the present accused, along with others had figured as the accused for the murder of one Sheroo Lalla and the deceased was cited as a witness for the prosecution therein. According to the learned Additional Sessions Judge, the said conduct of the accused showed an attempt on his part to subvert legal process and obstruct the law in allowing it to run its course by a means of threat or violence. The learned Additional Sessions Judge, while dealing with the question of sentence has, at para 37 of his judgment, observed as follows :--- "...The only question which remains is that of sentence. It was urged by the prosecution that the accused ought to be sentenced to suffer the maximum penalty under the law for having committed the offence of murder. It was pointed out that the enmity between the accused and the deceased was of some duration. There had been an earlier assault by the accused also with a dangerous weapon against the deceased. That the entire intention of the accused and the use of force against the deceased was to threaten him if persuasion failed to make him give false evidence and against the prosecution, to favour the brother of the friend of the accused. That this intention and plan would clearly produce a feeling of fear in the minds of the people and they would be dissuaded, and in any case be afraid of giving evidence. The object of the accused therefore was clearly to subvert legal process and obstruct the law in allowing it to run its course by means of threat or violence. It is quite clear that if violence or threat of violence were to be used against persons, to deter them from giving evidence in a Court of law and obstruct judicial and legal process, then, that would be a serious matter for then Court to consider. In the view which I have taken of the evidence in this case, it must be held that the accused used violence against the deceased in order to deter him and to punish him for having given evidence against his desire. The activity of the accused of this kind is certainly dangerous. Those of the knife seems to be natural and normal to him to settle his disputes with others and to force them to act according to his wishes. I am unable to find any extenuating circumstances in this case. It was urged that the accused is young man but, so also the deceased. Those of the knife seems to be natural and normal to him to settle his disputes with others and to force them to act according to his wishes. I am unable to find any extenuating circumstances in this case. It was urged that the accused is young man but, so also the deceased. It is in the evidence of the prosecution that the accused was making out an existence by immoral means. What is however more revolting is that, he should have resorted to violence and sought to wreck vendetta even when the deceased had escaped from him once when the occasion offered again, once again. The assault on Chutkhan seems to be clearly out of a desire to settle scores by means of violence, notwithstanding the fact that a case for assault with a dangerous weapon was already pending against him at the instance of the deceased. Taking all these circumstances into account, I am inclined to think that the accused must be sentenced to the maximum penalty under the law. ..." 25. As it appears from the aforesaid observations of the learned Additional Sessions Judge, that according to him it was proved that the motive for the accused in assaulting the deceased was that deceased had not obliged him by turning hostile to the prosecution and giving false evidence in the sessions case concerning the murder of Sheroo Lala in which one Azim, brother of the friend of the accused, was involved as an accused and thereby subverting the legal process and obstructing the law in allowing it to run its course by means of threat or violence. In our view there was no sufficient and satisfactory material before the learned Judge to hold that the said motive was proved. Further the assumption on which the learned Judge has based the said conclusion also do not appear to be factually true. The only thing in that regard that was before the learned Judge was some allegations to that effect by the deceased himself in his statement to Assistant Inspector of Police Desai to the following effect :--- "I also know one Hussain Pinjari for the past about 8/9 years. He is also staying at Old Khar and at some distance from the brothel of Sultana. Hussain Pinjari is dealing in smuggled goods, which he brings from Daman. He is a fast friend of Hyder. He is also staying at Old Khar and at some distance from the brothel of Sultana. Hussain Pinjari is dealing in smuggled goods, which he brings from Daman. He is a fast friend of Hyder. Hussain Pinjari has a brother called Azim. In 1972, Azim and six other viz., Maruti, Subhash, Ankush, Pralhad, Kennaya and Ramesh had murdered one Sheroo Lala at Linking Road, Bandra. They were all arrested and tried before the Court of Sessions at Bombay. I was one of the witnesses against them at the trial and gave evidence against them at the trial and on conclusion of the trial Azim, Maruti and Ramesh were convicted to and sentenced to imprisonment on 3rd of last month. Maruti and Azim have since been released on bail by the Court, pending the hearing of their appeal against their conviction. While the murder trial was on and before its commencement, both Hussain Pinjari and Hyder used to approach me and request me to turn hostile against the prosecution, but I used to tell them that I would speak only the truth before the Court. They have therefore been bearing grudge against me and are on inimical terms with me. Because of this enmity they also used to threaten me that they would finish me. About 4 months back before the commencement of the murder trial Hyder had stabbed me on my face with a razor at old Khar, over the same issue and on my complaint he was arrested by Bandra Police Station and was released on bail." Apart from the fact that according to us, as pointed out above, the said statement cannot be relied upon as a dying declaration, the aforesaid part of the statement, making out a motive for the assault, contains various statements of facts which was the subject-matter of the record of the Court in the said sessions case. Strangely, though it was possible for the prosecution at the trial to have the said record produced so as to ascertain whether the statement of the deceased about the accused having approached him to turn hostile and give evidence against the prosecution was probable that was not done. Strangely, though it was possible for the prosecution at the trial to have the said record produced so as to ascertain whether the statement of the deceased about the accused having approached him to turn hostile and give evidence against the prosecution was probable that was not done. That not having been done, it could not have been said merely from the statement of the deceased that the accused had approached the deceased for the said purpose and the deceased having refused, the accused had a grudge against him and with that motive had stabbed him. Excepting the bare word of the deceased to that effect, which could have been ascertained from the record but which was not done, there was no material before the Court to hold that any such motive on the part of the prosecution was proved. As a matter of fact, we ourselves called for and perused the records of the said sessions trial, the order of conviction in which is the subject-matter of appeal in this Court. On the perusal of the said record we find that as a matter of fact the trial Court had not believed the evidence of the deceased completely but had convicted the accused on the evidence of the other witnesses. In that view of the matter, it could be more probable that the accused might have assaulted the deceased on being angry at the deceased giving false evidence against the brother of his friend. The basis of the assumption on which therefore the learned Additional Sessions Judge had held the said motive to have been proved, factually did not exist. The said only ground on which the learned Judge has awarded death sentence to the accused was in our view not justified. On the other hand, in our view there was a probability that the accused had assaulted the deceased being angered by the deceased giving false evidence against the brother of his friend. 26. Before considering the question of awarding death sentence, it would be better to refer to the following observations of the Supreme Court in the case of (Ediga Anamma v. State of Andhra Pradesh)4, A.I.R. 1974 S.C. 799. "Where the murderer is too young or old, the clemency of penal justice helps. 26. Before considering the question of awarding death sentence, it would be better to refer to the following observations of the Supreme Court in the case of (Ediga Anamma v. State of Andhra Pradesh)4, A.I.R. 1974 S.C. 799. "Where the murderer is too young or old, the clemency of penal justice helps. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime to 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. Fact that the death sentence has hung over the head of the culprit excruciating long, may persude the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received life imprisonment or if the offence is only constructive, being under section 302, read with section 149, or against the accused has acted suddenly under anothers instigation, without premeditation, perhaps the Court may humanly 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 of the crime and helpless state of the victim, and the like, steel the heart of the law for a sterner sentence." In this case, as we have pointed out above, the initial assumption on which the learned Additional Sessions Judge has proceeded to award death sentence to the accused does not have any factual basis. On the contrary, the assault by the accused appears to be probable due to anger against the deceased because of his giving false evidence against the brother of his friend in Sessions Case No. 204 of 1973. We also find that the mother of the accused has made an affidavit appealing to this Court under the circumstances act out therein not to award death penalty to her son who is her only one. She has pointed out therein that the accused is only 23 years old, that he is her only son, that he was married only 3 years ago and has about 2 years old daughter, that because of this case his wife and the child have been sent to Hyderabad after the trial began and at present there is no one to look after her. She was widowed 16 years ago and had brought up her children, viz., the accused and two daughters, after great hardship, by stitching clothes. Taking into consideration all the circumstances in our view, in this case the interest of justice will be well served if the accused is awarded the sentence of life imprisonment instead of death for his conviction under section 302 of Indian Penal Code. 27. In the result, we hold that the accused is guilty of the offence under section 302 of the Indian Penal Code, and confirm the order of conviction passed against him. We, however, set aside the death sentence awarded to him but instead, award him the sentence of imprisonment for life. -----