R. G. DESAI, J. ( 1 ) THE appellant in Cr. A. No. 82/85 was the accused in Sessions Case No. 1112/82 on the file of the VIIIth Additional City Sessions Judge, Bangalore. He was tried for offences punishable under Ss. 302, 307 and 309, IPC for committing the murders of Husnara Banu and Md. Anis both children of Mohammed Basha (P. W. 22) who is the brother-in-law of the accused by assaulting them with barber's razor (M. O. 1) and knife (M. O. 2) on 3-7-1982 at about 1-45 p. m. in the house of P. W. 22 bearing No. 72, P. V. R. Road, Jolly Mohalla, Bangalore, for attempting to commit murder of Mohammed Asfaq (P. W. 21) son of P. W. 22, by assaulting him with the said weapons on the said date and at about the said time and place and for attempting to commit suicide by causing injuries to himself with the said weapons at about the said time and place. ( 2 ) AS the accused pleaded not guilty to the said charges, P. Ws. 1 to 27 were examined and Exs. P. 1 to P. 46 and M. Os. 1 to 20 were produced on behalf of the prosecution. The defence got marked Exs. D. 1 to D. 6. ( 3 ) THE defence of the accused as can be made out from his statement under S. 313, Cr. P. C. was one of total denial. But, according to the suggestions put to P. W. 22 the defence appeared to be that on the date of the incident P. W. 22 went home at about 12-30 or 1 p. m. and he saw the accused and his daughter Husnara Banu sleeping inside the room and being angry he assaulted both the accused and his daughter with knife and when his other two sons went there, he assaulted them also with that knife and in order to save himself he got a false complaint prepared as per Ex. P. 24 and obtained the signature of Janima (P. W. 8) and filed it. ( 4 ) ACCEPTING the prosecution evidence, the learned Sessions Judge convicted the accused of all the three offences with which he stood charged and sentenced him to death for murdering Husnara Banu and Mohammed Anis and to undergo rigorous imprisonment for five years and rigorous imprisonment for three months under Ss. ( 4 ) ACCEPTING the prosecution evidence, the learned Sessions Judge convicted the accused of all the three offences with which he stood charged and sentenced him to death for murdering Husnara Banu and Mohammed Anis and to undergo rigorous imprisonment for five years and rigorous imprisonment for three months under Ss. 307 and 309, IPC respectively and directed the substantive sentences to run concurrently. The accused has preferred Cr. A. No. 82/85 against the said conviction and sentence and the learned Sessions Judge has submitted the proceedings for confirmation of death sentence under S. 366, Cr. P. C. ( 5 ) THE prosecution case may be briefly stated as follows : mohammed Basha (P. W. 22) was residing in the premises situated in the second floor of the house bearing No. 72, PVR Road, Jolly Mohalla, Bangalore, with his wife and three children. Deceased Husnara Banu aged about 13 years was his only daughter. Deceased Mohammed Anis aged about 6 years is his youngest son and Mohammed Asfaq (P. W. 21) aged about 11 years is his eldest son. The accused is the step-brother of the wife of Mohammed Basha (P. W. 22 ). Mohammed Basha (P. W. 22) was running a shop and was dealing in plastic goods at Bangalore. The accused was working as his assistant on a monthly salary of Rs. 700/- p. m. till about 1 months prior to the incident and the accused was paying Rs. 200/- to the wife of P. W. 22 for his boarding and lodging in their house. About 15 days prior to the date of the incident, the wife of Mohammed Basha (P. W. 22) had undergone an operation for appendicitis and as she was advised not to climb the stairs to go to her house in the second floor she was staying in the house of her relative in Shivajinagar. Janima (P. W. 8) who is the natural sister of the accused had come to Bangalore and was staying in the house of P. W. 22 for cooking food to the children of her sister. It appears that the accused and deceased Husnara Banu were loving each other and that the accused had offered to marry her. But, Mohammed Basha (P. W. 22) and his wife rejected the said offer as it was against their custom according to which the accused could not marry his sister's daughter. It appears that the accused and deceased Husnara Banu were loving each other and that the accused had offered to marry her. But, Mohammed Basha (P. W. 22) and his wife rejected the said offer as it was against their custom according to which the accused could not marry his sister's daughter. The accused had planned to go to Soudi Arabia and he had demanded Rs. 10,000/- from P. W. 22 for that purpose. But, P. W. 22 paid only Rs. 5,000/- and settled his account. It appears, the accused was writing accounts in the shop of P. W. 22. So, the accused being dissatisfied with the conduct of P. W. 22 in refusing to give his daughter's hand in marriage to him and to pay Rs. 10,000/- had left the house of P. W. 22 and had gone to his native place-Ambur in Tamil Nadu, about 1 months prior to the incident. ( 6 ) ON the fateful day i. e. on 3-7-82 all the children of P. W. 22 had gone to school and P. W. 22 had gone to his shop. Aziz Basha (P. W. 15) had come to Bangalore to see his grand mother along with his parents, brother and sisters and had been staying in the house of P. W. 22 who happened to be the son-in-law of his aunt, since about 5 or b days prior to the incident. Janima (P. W. 8) and Aziz Basha (P. W. 15) were in the house of P. W. 22. At about 11-30 a. m. on that day, Husnara Banu returned home from school. At about 1 p. m. on that day, the accused went to the house of P. W. 22 and inquired about his children with his sister Janima (P. W. 8 ). P. W. 8 told him that Husnara Banu was at home and that the other two children had gone to school. Then, the accused talked to Husnara Banu for some time and left the house at 1. 15 p. m. saying that he would get the other children from the school. Accordingly, he went to the school and brought Mohammed Anis and Mohammed Asfaq to their house at about 130 p. m. Then, he took all the three children of P. W. 22 to a room on the pretext of showing them photographs. 15 p. m. saying that he would get the other children from the school. Accordingly, he went to the school and brought Mohammed Anis and Mohammed Asfaq to their house at about 130 p. m. Then, he took all the three children of P. W. 22 to a room on the pretext of showing them photographs. He asked P. W. 8 and P. W. 15 to go out of that room. So, they went to the kitchen. Then, deceased Husnara Banu, deceased Mohammed Anis and Mohammed Asfaq (P. W. 21) sat on the cot in a room of that house. The accused gave a folded paper to Mohammed Anis who on unfolding it found it to be blank. On seeing that the accused laughed and Mohammed Asfaq became angry and asked the accused as to why he had called them for that purpose and threw away the paper. Then, deceased Husnara Banu got up and proceeded towards the door. Then, the accused caught her by his left hand, bolted the door from inside and took the barber's razor (M. O. 1) from a plastic bag kept there and began to cut the neck of Husnara Banu with it. On receiving the injuries, Husnara Banu fell down. Thereafter, the accused took another knife from the same plastic bag and stabbed her. On seeing that Mohammed Anis and Mohammed Asfaq raised cries. Then, the accused assaulted both of them with the same knife and razor. P. W. 8, on hearing the cries, went and pushed the door and found it to be bolted from inside. So, herself and P. W. 15 went to the balcony and peeped into the room through the window. They saw the accused assaulting Mohammed Anis. On seeing that P. W. 8 cried out "bachchako Maro nako, Maro nako". On hearing her cries, Noorunnisa Begum (P. W. 19) who is the wife of the brother of P. W. 22 also went to the balcony and saw through the window the accused assaulting the children. The accused threatened to finish all if they were to scream. After assaulting all the three of them, the accused swallowed some tablets and then wrote on the southern wall of that room with blood the words "kiss, love, no". Thereafter, the accused stabbed himself and also cut his throat with the knife and fell on the cot in that room. After assaulting all the three of them, the accused swallowed some tablets and then wrote on the southern wall of that room with blood the words "kiss, love, no". Thereafter, the accused stabbed himself and also cut his throat with the knife and fell on the cot in that room. P. W. 12 and others went there, pushed the door forcibly and opened it. They saw all the four lying injured in that room. Mohammed Asfaq (P. W. 21) asked Janima (P. W. 8) to give him water. Accordingly, she gave him some water. On hearing the row, Vedamuttu (P. W. 9) who has his shop opposite to the house of P. W. 22 rang up the Kangerigate police station and told about the "galata". Azeez. Basha (P. W. 15) went to the nearby shop of Natarajan (P. W. 16) and rang up Mohammed Basha (P. W. 221 and told him that Shafeeque Ahmed (accused) had cut the neck of his children. On receiving the phone message from Vedamuttu (P. W. 9) Kotrebasappa (P. W. 23) PSI of Kangerigate police station rushed with his staff and M. A. Shaik (P. W. 25) who was then the PSI, Jagajivanarama Nagar police station, Bangalore, and who happened to be there then. On learning about the incident from P. W. 15, P. W. 22 rushed to his house in an autorikshaw and saw the ghastly incident and found Husnara Banu lying dead. He immediately removed his injured sons Mohammed Anis and Mohammed Asfaq who were alive in an autorikshaw to the Victoria Hospital. Altaf Basha (P. W. 20) went to the house of P. W. 3 and removed the injured accused who was lying unconscious, in an autorikshaw to the Victoria Hospital and got him admitted there. By the time P. W. 23 and others reached the spot, many people had gathered in front of the house of P. W. 22. P. W. 23 went to the house of P. W. 22 and saw the dead body of Husnara Banu lying in a pool of blood inside the room. He questioned Janima (P. W. 8) who was present then and recorded her statement in Kannada as per Ex. P. 24 with the help of Mr. Shaik (P. W. 25) who knew Urdu and who translated the questions put to her by P. W. 23 and answers given by her. He questioned Janima (P. W. 8) who was present then and recorded her statement in Kannada as per Ex. P. 24 with the help of Mr. Shaik (P. W. 25) who knew Urdu and who translated the questions put to her by P. W. 23 and answers given by her. Then, he went to the police station along with Ex. P. 24 and registered a case in Crime No. 246/182 under Ss. 302, 307 and 309, IPC. He prepared the FIR as per Ex. P. 35 and delivered Ex. P. 24 and Ex. P. 35 to Chikkasiddaiah (P. W. 6) PC, at 3-30 p. m. for taking them and delivering them to the jurisdictional Magistrate. He submitted express reports to his superiors including the Circle Inspector of Police Vellappa (P. W. 27 ). P. W. 27 immediately proceeded to the spot and held inquest proceedings over the dead body of Husnara Banu as per Ex. P. 25 and seized the bloodstained barber's razor (M. O. 1), bloodstained knife (M. O. 2), rexine bag (M. O. 12), bloodstained bed sheet (M. O. 10), a purse: containing three 10 rupee currency notes (M. O. 11), driving licence of the accused (Ex. P. 34), a letter (Ex. P. 40), passport size photograph (M. O. 13) found in M. O. 11 under it. He noticed the writing on the southeran wall to the effect "kiss, love, no" with blood. The said articles were sealed and seized and subjected to the property form No. 78/82. During the course of inquest, he examined Janima (P. W. 8), Mohammed Basha (P. W. 22) and others. In the meantime Mohammed Anis was pronounced dead by the doctors in the Victoria Hospital and his dead body was kept in the mortuary. The official photographer (P. W. 7) took the photographs of the dead body of Husnara Banu and the room where it was lying as per Ex. P. 16 and Ex. P. 20. Ex. P. 16 (a) to Ex. P. 20 (a) are the negatives of the said photographs. The dead body of Husnara Banu was forwarded to the Victoria Hospital for post-mortem examination through Balakrishna (P. W. 4 ). The room where the dead body of Husnara Banu was found and where the occurrence took place was measuring 101/4 X 81/4. Ex. P. 16 (a) to Ex. P. 20 (a) are the negatives of the said photographs. The dead body of Husnara Banu was forwarded to the Victoria Hospital for post-mortem examination through Balakrishna (P. W. 4 ). The room where the dead body of Husnara Banu was found and where the occurrence took place was measuring 101/4 X 81/4. It was noticed inside the room the wooden portion of the door had been damaged near the bolt and there was a window on the northern side facing balcony, at the time of inquest. Thereafter, P. W. 27 proceeded to the Victoria Hospital with panchas and conducted inquest proceedings on the dead body of deceased Mohammed Anis as per Ex. P. 27 and handed over the dead body to Puttaswamy (P. W. 5), PC, for being delivered to the Doctor for post-mortem examination. Mohammed Asfaq (P. W. 21) was not in a position to give his statement and so he could not record his statement. P. W. 7 visited the mortuary and took the photographs of the dead body of Mohammed Anis as per Exs. P. 21 and P. 22, the negatives of which are Exs. P. 21 (a) and P. 22 (a), respectively. The accused handed over a letter in a plastic cover to Dr. Prakash (P. W. 24) who in turn handed it over to the PSI (P. W. 23 ). On 5-7-82, the PSI received the cover (Ex. P. 31) containing the letter (Ex. P. 30) and he handed over them to the C. I. (P. W. 27) on 6-7-82. The C. I. recorded the statement of Mohammed Asfaq (P. W. 21) on 5-7-82. He arrested the accused after his discharge from the hospital on 24-7-82. He got the sketch of the scene of offence prepared as per Ex. P. 10 by the Junior Engineer (P. W. 2 ). He sent the bloodstained articles to the Chemical Examiner and received the report as per Ex. P. 43. After completing the investigation, he charge-sheeted the accused for the said offences. He got the sketch of the scene of offence prepared as per Ex. P. 10 by the Junior Engineer (P. W. 2 ). He sent the bloodstained articles to the Chemical Examiner and received the report as per Ex. P. 43. After completing the investigation, he charge-sheeted the accused for the said offences. ( 7 ) THE undisputed facts are :1) that an incident took place on 3-7-82 at about 1-45 p. m. in the room of the house bearing No. 72, P. V. R. Road, Jolly Mohalla, Bangalore, where P. W. 22 was residing with his family; 2) that deceased Husnara Banu and deceased Mohammed Anis died a homicidal death in the said incident as is clear from the evidence of Dr. Somiah (P. W. 1) and his P. M. reports Exs. P. 4 and P. 2 respectively; and 3) that the accused and Mohammed Asfaq (P. W. 21) sustained injuries in the same incident as stated by Dr. Prakash (P. W. 24 ). ( 8 ) ACCORDING to Dr. Somiah (P. W. 1) he noticed as many as 22 injuries on the dead body of Mohammed Anis. According to him injury No. 7 had resulted in injury to the right lung and liver and injury No. 19 had resulted in incised injury to the left lung. Injury No. 5 had resulted in cutting of the jugular vein. He has stated that all the injuries were ante-mortem and fresh, and that injury Nos. 5, 7 and 19 were fatal and that the deceased had died due to shock and haemorrhage as a result of the injuries sustained by him. According to him injury Nos. 2 to 6, 8, 11 to 13, 15 to 18 and 20 to 22 could be caused by the weapons like M. Os. 1 and 2 and that injury Nos. 7, 14 and 19 could be caused by M. O. 2. Dr. Somiah (P. W. 1) has also stated that he noticed four injuries on the dead body of Husnara Banu on her neck and stomach. He noticed a tip of broken knife implanted in the vertible column on the left side of injury No. 1. 7, 14 and 19 could be caused by M. O. 2. Dr. Somiah (P. W. 1) has also stated that he noticed four injuries on the dead body of Husnara Banu on her neck and stomach. He noticed a tip of broken knife implanted in the vertible column on the left side of injury No. 1. He removed that piece of the broken razor (M. O. 3) and had handed it over to the I. O. According to him, M. O. 3 was part of M. O. 1 and that injury No. 1 on the dead body of Husnara Banu could be caused by M. O. 1 and that the other injuries found on her dead body were caused by the knife (M. O. 2 ). He has stated that all the injuries noticed on the dead body of Husnara Banu were ante-mortem and she died due to shock and haemorrhage as a result of the cut injury over her neck. Regard being had to the nature of the injuries sustained by Husnara Banu and Mohammed Anis, the vital parts chosen and the nature of the weapons used, the intention of the assailant must have been to cause their death and the offence committed by their assailant would be one punishable under S. 302, IPC. ( 9 ) DR. Prakash (P. W. 24) has stated that he noticed 10 injuries on the person of Mohammed Asfaq (P. W. 21), on his head, face and back. According to him, injury No. 5 was grievous in nature and that was on the vital part. He has stated that the said injuries could be caused by M. Os. 1 and 2. Regard being had to the nature of the injuries sustained by P. W. 21 and the nature of the weapons used, the intention of his assailant must have been to cause his death and the offence committed by his assailant would be one punishable under S. 307, IPC. ( 10 ) DR. Prakash (P. W. 24) has stated that he noticed the following injuries on the person of the accused :1) an incised wound across the front of neck measuring 2'' X 1'' exposing larynx muscles and blood vessels; and 2) 12 multiple stab wounds measuring " X " X ? over the epigastrium;. He has stated that the said injuries could be caused by weapons like M. Os. over the epigastrium;. He has stated that the said injuries could be caused by weapons like M. Os. 1 and 2 and they could be self-inflicted also. ( 11 ) BUT, the important point for decision is whether the prosecution has proved beyond all reasonable doubt that it is the accused who is responsible for causing the deaths of Husnara Banu and Mohammed Anis and for causing injuries to Mohammed Asfaq and himself. According to the prosecution, it is the accused - a frustrated lover of Husnara Banu - who had determined to kill all the three children of P. W. 22 who had refused to give the hand of his daughter in marriage to him, who committed the murders of Husnara Banu and Mohammed Anis and attempted to cause the death of Mohammed Asfaq and attempted to commit suicide whereas, according to the defence, it was P. W. 22 who on finding the accused and his daughter Husnara Banu together, assaulted them and also his two sons Mohammed Anis and Mohammed Asfaq who had gone there on hearing her cries. Therefore, it has to be seen which version is more probable and true. The prosecution case rests mainly on the direct evidence of Mohammed Asfaq (P. W. 21), Aziz Basha (P. W. 15) and Noorunnisa Begum (P. W. 19) since the complainant Janima (P. W. 8) who is the natural sister of the accused has turned hostile to the prosecution as regards the connection of the accused with the commission of the said offences. ( 12 ) IT is admitted by the accused that he is the step-brother of the wife of Mohammed Basha (P. W. 22); that he was working as Accountant in his shop till about 1 months prior to the incident and that he was residing and taking food in the house of the accused by paying Rs. 200/- to his step sister for his boarding. According to the accused himself, Husnara Banu and himself were loving each other and he wanted to marry her. His natural sister Janima (P. W. 8) has also admitted that the accused and Husnara Banu were loving each other and that the accused wanted to marry her; that P. W. 22 refused to give his daughter in marriage to the accused as it would be against their custom according to which one could not marry his sister's daughter. His natural sister Janima (P. W. 8) has also admitted that the accused and Husnara Banu were loving each other and that the accused wanted to marry her; that P. W. 22 refused to give his daughter in marriage to the accused as it would be against their custom according to which one could not marry his sister's daughter. That appears to be so in view of the letters - Exs. P. 30, P. 33 and P. 40. P. W. 22 has stated that he is acquainted with the hand-writing of the accused and that Ex. P. 33 is in the handwriting of the accused. Ex. P. 33 is the letter delivered by the accused to Dr. Prakash (P. W. 24 ). Of course, P. W. 24 is unable to identify it as the letter handed over by the accused. But, the PSI (P. W. 23) to whom P. W. 24 had delivered it has immediately produced it before the CI who seized it under Ex. P. 32 which has been proved by Madappa (P. W. 17 ). Ex. P. 33 contains English version on one side and Tamil version on its reverse side. Exs. P. 30 and P. 40 are the true copies of English version of Ex. P. 33. Admittedly, accused was working in the shop of P. W. 22 and was writing accounts. So, it is probable that P. W. 22 must be acquainted with his handwriting as stated by him. The fact that the letter Ex. P. 33 has come from the custody of the accused and prima facie shows that he was the writer of it, as it bears the signature purporting to be his, we are satisfied that the said letter is the one written by the accused, especially, in view of the intrinsic contents of the letter containing his love affairs with Husnara Banu, the denial of her parents to give her hand in marriage to him, his Ambur address and his desire for arranging his funeral in a mosque near his father's place. Ex. P. 33 probabilises that the accused had decided to commit suicide along with Husnara Banu. ( 13 ) P. WS. 21, 15 and 19 have given evidence in terms of the prosecution case as stated above. P. W. 21 is the injured witness. So, his presence at the time of the incident cannot be disputed. Ex. P. 33 probabilises that the accused had decided to commit suicide along with Husnara Banu. ( 13 ) P. WS. 21, 15 and 19 have given evidence in terms of the prosecution case as stated above. P. W. 21 is the injured witness. So, his presence at the time of the incident cannot be disputed. According to him, the accused beat his sister with barber's razor (M. O. 1) and thereafter he took the knife from the Rexine bag and assaulted her and others. The evidence of Dr. Somiah ( P. W. 1) shows that barber's razor was broken while assaulting Husnara Banu and the piece was found embedded in her body. This probabilises the say of P. W. 21 that the accused took the knife after barbers razor (M. O. 1) was broken. The injuries found on the two deceased, P. W. 21 and the accused could be caused by M. Os. 1 and 2, according to P. Ws. 1 and 24. This also probabilises the version of P. W. 21 that M. Os. 1 and 2 were used in assaulting the deceased, himself and the accused. The incident has taken place inside a room where only four persons i. e. , two deceased, P. W. 21 and the accused were present. P. W. 12 has stated that on hearing the row he rushed near the house of P. W. 22 and himself and 3 to 4 persons pushed the door of the room where the incident took place and forced it open and found all the four persons lying injured. There is no reason for P. W. 12 to give false evidence against the accused. In fact, he has not implicated the accused at all. He has only spoken about forcing open the door which was bolted from inside and finding of the four lying injured inside the room. This shows that this witness is speaking the truth and we have no hesitation in accepting his evidence, especially, as it is corroborated by the damage to the door from inside near the bolt, noticed by C. I. (P. W. 27) at the time of the inquest panchanama-Ex. P. 25. His evidence not only probabilises the version of P. W. 21, but improbabilises the say of the accused and P. W. 8 that P. W. 22 assaulted them and bolted the door from outside. P. 25. His evidence not only probabilises the version of P. W. 21, but improbabilises the say of the accused and P. W. 8 that P. W. 22 assaulted them and bolted the door from outside. Out of the four who were lying inside the room, it was only the accused who was 22 years old and the other three were aged about 13 years, 11 years and 6 years. The evidence of P. Ws. 15 and 19 that they peeped through the window after going to the balcony is probabilised by the finding of the window towards the balcony of that room by P. W. 27 at the time of the inquest panchanama. That is also spoken to by P. W. 21. P. W. 21 has stated that the accused wrote with the blood on the wall. The finding of the words "kiss, love, no" on the southern wall of that room by the I. O. (P. W. 27) and the pancha at the time of inquest probabilises the said version of P. W. 21. According to P. W. 21, he asked P. W. 8 to get water and she brought water and gave it to him. Even the hostile witness P. W. 8 has admitted that fact. The conduct of P. W. 15 is going to the shop of Natarajan (P. W. 16) and informing about the incident to P. W. 22 over the phone is must natural. P. W. 16 has supported him in that behalf. Admittedly, P. W. 19 has been staying with her family in the first floor of the same building. Therefore, her evidence that on hearing the commotion and the cries of P. W. 8, she rushed to the second floor and peeped through the window and saw the incident appears to be probable. P. W. 15 is also from Ambur which is also the native place of the accused. He had temporarily come over to Bangalore to see his grandmother along with his parents and was staying in the house of P. W. 22 for the last 6 or 7 days prior to the incident. Merely because P. Ws. P. W. 15 is also from Ambur which is also the native place of the accused. He had temporarily come over to Bangalore to see his grandmother along with his parents and was staying in the house of P. W. 22 for the last 6 or 7 days prior to the incident. Merely because P. Ws. 15, 19 and 21 are the relatives of the deceased and P. W. 22, their evidence cannot be disbelieved, especially, as they have no axe to grind against the accused and as they would be the last persons to leave out the real culprit and involve an altogether innocent person. The accused is also related to them. Under the circumstances, it is unlikely that they would falsely implicate him. No doubt, the names of P. Ws. 15 and 19 have not been mentioned in the FIR (Ex. P. 24) lodged by P. W. 8. P. W. 8 herself had denied the contents of Ex. P. 24. It is well settled that the complaint is not a substantive piece of evidence and it can only be used to corroborate or to contradict its maker. Regard being had to the circumstances of this case, we are satisfied about the presence of P. Ws. 15 and 19 near the scene especially, as their evidence finds support from other evidence referred to above. Though P. Ws. 15 and 21 are child witnesses, being aged about 11 years and 12 years respectively, their evidence is substantially corroborated by the other circumstances in the case. Hence, we have no hesitation in accepting their evidence as true. ( 14 ) THE delay of about 2 days in recording the statement of P. W. 21 has been satisfactorily explained by the prosecution, Admittedly, P. W. 21 was injured. The I. O. (P. W. 27) has stated that as P. W. 21 was not in a position to make a statement according to the endorsement of the Doctor (Ex. P. 41 (a)) he could not record his statement earlier. No doubt, P. W. 24 has stated that P. W. 21 was conscious and was in a position to speak at the time of his admission. But, immediately, he was transferred to the surgical unit and he was operated upon. P. 41 (a)) he could not record his statement earlier. No doubt, P. W. 24 has stated that P. W. 21 was conscious and was in a position to speak at the time of his admission. But, immediately, he was transferred to the surgical unit and he was operated upon. So, after the operation, he must not have been in a position to speak, as stated by P. W. 27 which is supported by the endorsement (Ex. P. 41 (a) ). Hence, we are satisfied that the delay in recording the statement of P. W. 21 has been properly explained. The delay in the FIR reaching the Magistrate has also been properly explained by the evidence of P. Ws. 6 and 23. Even assuming for the sake of argument that there is some delay, it would not in any way affect the prosecution case in view of the peculiar facts and circumstances of this case. ( 15 ) THE version of the accused that P. W. 22 on finding himself and Husnara Banu sleeping in a room assaulted them and he also assaulted his other sons Mohammed Anis and Mohammed Asfaq appears to be improbable and false in view of the following reasons :1) that the accused himself has not stated so in his statement under S. 313, Cr. P. C. and therefore, it appears that the suggestions put to the witnesses in cross-examination by the counsel for the accused have no foundation and are the out-come of the imagination of the Advocate; 2) that the evidence of P. W. 9 and P. W. 12 shows that P. W. 22 went to his house after the incident; 3) that the evidence of P. W. 22 that he was informed about the incident over the phone by P. W. 15 and thereafter went to his house is probabilised by the evidence of P. W. 16 and the evidence of P. W. 13 who was working as servant in the shop of P. W. 22; 4) that it is improbable that P. W. 22 would assault his innocent teenaged sons P. Ws. 21 and deceased Mohammed Anis, aged about 6 years; and 5) the letter (Ex. P. 33) probabilised that the accused himself wanted to commit suicide which probabilise the prosecution version that he assaulted himself. 21 and deceased Mohammed Anis, aged about 6 years; and 5) the letter (Ex. P. 33) probabilised that the accused himself wanted to commit suicide which probabilise the prosecution version that he assaulted himself. Thus, regard being had to all the circumstances in the case, we are satisfied that the evidence of P. Ws. 15, 19 and 21 substantially represents the truth and that there is no truth in the defence of the accused. If that is so, the conviction of the appellant for offences punishable under Ss. 302, 307 and 309, IPC is proper. ( 16 ) THIS brings us to the question of sentence. Mr. R. B. Naik, for the accused, urged that this is not a rarest of rare case and so the imposition of the death sentence by the lower Court cannot be sustained. On the other hand, the learned Additional State Public Prosecutor urged that the conduct of the accused in luring the young children by promise of showing photographs and taking them to the room and going prepared with barbers razor (M. O. 1) and knife (M. O. 2) and assaulting them in a cruel manner, justifies the imposition of death sentence by the lower Court. ( 17 ) NO doubt, the evidence shows that the accused lured the three young children by promise of showing photographs and took them to a room and assaulted them with M. Os. 1 and 2 which he had carried in his rexine bag ( M. O. 12 ). The appellant was thus guilty of heinous crime of murdering two young children for no fault of theirs, and he deserves the extreme penalty. But, we are bound by the Rule laid down in Bachan Singh v. State of Punjab, AIR 1980 SC 898 where, the Supreme Court has ruled that for persons convicted of murder, life imprisonment is the rule and death sentence an exception that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality, and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. The test laid down in Bachan Singh's case is unfortunately not fulfilled in the instant case. The accused was about 22 years old at the time of the incident. The test laid down in Bachan Singh's case is unfortunately not fulfilled in the instant case. The accused was about 22 years old at the time of the incident. He wanted to end his life and he had inflicted as many as 13 injuries on his person and had to be hospitalised for about 20 days. His conduct and behaviour in the jail which was evident from the report of the Jail authorities was to the effect that there was nothing adverse against him during the period of his incarceration. He appears to have genuinely repented for what he has done. Under the circumstances, we think it proper to commute the sentence of death passed on the appellant to one of imprisonment for life and give him a chance to improve. ( 18 ) IN the result, the conviction of the appellant under Ss. 302, 307 and 309, IPC is confirmed. The sentence of death imposed on the appellant by the lower Court under S. 302, IPC is commuted to one of imprisonment for life. The sentence imposed on the accused-appellant for offences punishable under Ss. 307 and 309, IPC are maintained. With the said modification in the sentence, the appeal is dismissed and the reference is rejected. Appeal dismissed. --- *** --- .