V. KUMAR, J. ( 1 ) CONVICT Ram Achal having been awarded the death sentence by the Addl. Sessions Judge Barabanki, the proceedings of the case have been submitted to this Court for confirmation of the death sentence. The same convict has filed an appeal from jail against his conviction under Sections 302/326/364/452, Indian Penal Code sentencing him to death, six years rigorous imprisonment, five years rigorous imprisonment and three years rigorous imprisonment respectively. All the sentences were to run concurrently. ( 2 ) CONVICT appellant Ram Achal and the informant Uma Kanti (P. W. 1) lived in the same village Odar, police station Kursi, District Barabanki. The house of Uma Kanti situated towards south of the Galiyara in the village. The gate of the house existed towards north and on the south-western end of the house there was fixed a tatiya (a temporary covering made of leaves and branches) and on the northern side of the house there situated a Barotha. Thereafter there existed an open courtyard with Chhappar towards is south-west which was used for cooking food. Thereafter, towards the south-west corner, a Kothri situated. This is evident from the testimony of the informant Uma Kanti (P. W. 1) coupled with the site-plan, Ex. Ka-11 which was prepared by the Investigating Officer after his reaching the scene of occurrence on lodging of the first information report about the murder by Uma Kanti on 2-5-84 at 8. 30 p. m. ( 3 ) THE prosecution case is stated briefly. Ram Naresh, the son of Smt. Uma Kanti, wife of Raghunath married Smt. Ram Pyara, the wife of appellant Ram Achal about 5 months before the occurrence. It happened when the marriage of Smt. Ram Pyara and Ram Achal was not at all broken. This provided motive for the occurrence in question, inasmuch as Ram Achal was annoyed and had developed illwill against the members of the family of the informant Uma Kanti. On 1-5-84 at about 6. 30 p. m. Ram Achal earned with a Banka entered into the house of Uma Kanti. At that hour, two sons of Uma Kanti, namely, Tirath Ram, aged about seven years and Ramu, younger to Tirath Ram, Uma Kanti and Prakash, the son of Ram Achal were present in the house. Uma Kanti was busy in connection with the cooking of food at her house under the Chhappar. At that hour, two sons of Uma Kanti, namely, Tirath Ram, aged about seven years and Ramu, younger to Tirath Ram, Uma Kanti and Prakash, the son of Ram Achal were present in the house. Uma Kanti was busy in connection with the cooking of food at her house under the Chhappar. Ram Achal after entering into the house attacked and assaulted Tirath Ram with a Banka. He ran towards south but Ram Achal chased him and again gave strokes at him with the Banka causing him fatal injuries. Tirath Ram died on the spot. The remaining two boys Ramu and Prakash ran towards south, entered into the southern Kothri and closed it from inside. The appellant took up the wooden rod which was lying in the courtyard and broke open the Kothri with its help. He attacked Ramu with the Banka and cut off both his arms so that both phalanges separated and fell down on the ground. On raising of the alarm, Raghunath, the husband of Uma Kanthi, the neighbour Parashu Ram and his wife rushed to the house of Uma Kanti and saw the appellant Ram Achal running away from the scene of occurrence. ( 4 ) UMA Kanti (P. W. 1) took her son Ramu, whose arms were cut, to police station Kursi situated at about 4 Kilometres from her house and lodged the first information report at 8. 10 p. m. on the same day, i. e. , 1-5-84 by dictating the same to the Head Moharrir at the police station. Raghunath, the father of the deceased remained at his house where the dead body of Tirath was lying. On the basis of the first information report case was registered in the general diary at the police station. The case was investigated by Sub-Inspector S. N. Pandey (P. W. 7 ). ( 5 ) INJURED Ramu was sent to Balrampur Hospital Lucknow for his medical examination and treatment. ( 6 ) THE Investigating Officer recorded the statement of the informant Uma Kanti at police station Kursi. He proceeded to the spot in the same night, recorded the statements of witnesses including Raghunath. Due to night, further investigation was conducted on the next morning when the inquest report in respect of the dead body of Tirath was prepared, diagram, as well as the challan in respect of the dead body were prepared. He proceeded to the spot in the same night, recorded the statements of witnesses including Raghunath. Due to night, further investigation was conducted on the next morning when the inquest report in respect of the dead body of Tirath was prepared, diagram, as well as the challan in respect of the dead body were prepared. After the dead body was duly sealed by the Investigating Officer, it was sent for post mortem examination. Site-plan of the spot was prepared at the instance of the witnesses, wooden rod (pahrua) was also found at the place of occurrence, in respect of which recovery memo was prepared. Bloodstained earth and ordinary earth were also taken from the places inside the house of Uma Kanti where the dead body was lying, as well as where Ramu was attacked and his arms were cut. The phalanges of Ramu were sent to the Balrampur Hospital after being sealed by the Investigating Officer. From the house of Darshan, the child Prakash was recovered by the Investigating Officer. He also recovered bloodstained Banka from the house of Smt. Dhankunni. Recovery memos were prepared. Investigation was subsequently taken over by Sub-Inspector Ram Ashish Misra who recorded the statement of the accused Ram Achal. After completing the investigation, chargesheet was submitted to the Court against Ram Achal Darshan and Smt. Dhankunni on 6-6-84. Only Ram Achal was convicted by the trial Court and the remaining two accused were acquitted. ( 7 ) FROM the side of the prosecution, eight witnesses were examined, out of whom two witnesses, namely, Uma Kanti (P. W. 1) and Ramji (P. W. 2) are the witnesses of the occurrence and the remaining witnesses are formal. Besides the Investigating Officer, Shambhu Nath Pandey (P. W. 7), and the Constable Vikram Prasad (P. W. 6) who had taken the dead body of Tirath from the place of occurrence for post-mortem examination, three Doctors, namely, Dr. Amrik Singh (P. W. 4), Dr. V. S. Saluja (P. W. 5) and Dr. A. D. Dass Gupta (P. W. 8) were also examined. Dr. A. D. Dass Gupta has conducted the post-mortem examination, and the remaining two Doctors have examined the injured Ramu and his X-ray reports. ( 8 ) APPELLANT Ram Achal denied the occurrence and pleaded not guilty. His case is that he has been implicated falsely on. A. D. Dass Gupta (P. W. 8) were also examined. Dr. A. D. Dass Gupta has conducted the post-mortem examination, and the remaining two Doctors have examined the injured Ramu and his X-ray reports. ( 8 ) APPELLANT Ram Achal denied the occurrence and pleaded not guilty. His case is that he has been implicated falsely on. account of enmity, which is also the reason for deposition of witnesses against him. He did not adduce any evidence. The medical evidence consisting of the testimony of Dr. A. D. Dass Gupta (P. W. 8) coupled with the post-mortem examination report goes to show that on post-mortem examination of the dead body of Tirath conducted on 2-5-84 at about 12 Oclock in the noon, following antemortem injuries were found on his person :-1. Incised wound 13 c. m. x 4 c. m. x muscle deep on left ear back extending over front of neck poliquely. Linear cut of bone (occipital bone.) Blood vessels cut with shaft structures. 2. Incised wound 8 c. m. x 3 c. m. x muscle deep on neck upper part frontally. 3. Incised wound 7 c. m. x 3 c. m. x bone deep on left face lower part. Mandible was cut. 4. Incised wound 3 c. m. x 1 c. m. x muscle deep on chin. 5. Incised wound 6 c. m. x 4 c. m. x skin deep on the left side of scalp back of left ear. 6. Incised wound 6 c. m. x 2 c. m. x bone deep in between the thumb and forefinger on the back of left hand. 7. Incised wound 1 c. m. x 0. 5 c. m. x muscle deep on the front of middle finger in upper part of left hand. ( 9 ) ON an internal examination, vessels of the neck were found cut at the places of injury. ( 10 ) PROBABLE time of the death was about 18 hours prior to the time of post-mortem examination. Rigor mortis had passed off on the upper part of the body, but was present in the lower part. Doctor has further opined that the injuries could have been caused by Banka and were quite sufficient to cause death in ordinary course. In cross-examination, he denied that the injuries could have been caused from a weapon like kulhari. Rigor mortis had passed off on the upper part of the body, but was present in the lower part. Doctor has further opined that the injuries could have been caused by Banka and were quite sufficient to cause death in ordinary course. In cross-examination, he denied that the injuries could have been caused from a weapon like kulhari. In the opinion of the Doctor, the death was caused due to shock and haemorrhage as a result of the ante-mortem injuries. It is, thus, evident that it was a case of murder of Tirath. ( 11 ) DR. Amrik Singh (P. W. 4) who was the Medical Officer at Balrampur Hospital, examined Ramu on 1-5-1984 at 10-45 p. m. and prepared the injury report. Following injuries were found on his body :-1. Amputated right forearm 16 c. m. below from right elbow joint. Edges were clean and clotted blood was present. 2. Amputated left forearm 18 c. m. below from elbow joint, edges were clean and clotted blood was found pesent. ( 12 ) IN the opinion of the Doctor, the injuries were fresh and could have been caused by a heavy sharp edged weapon like banka. He opined that the injuries could have been caused on 1-5-84 at about 6. 30 p. m. He denied that the injuries could have been caused by the order cutting machine. He advised X-ray. As a result of X-ray of Ramu on 2-5-84 at Balrampur Hospital, Lucknow, X-ray plate was prepared which showed clearly that his both hands were amputated below the wrist. Injured Ramu was admitted in the Balrampur Hospital and was medically treated there for about a month before he was discharged. ( 13 ) THE prosecution case is supported by Smt. Uma Kanti (P. W. 1) and the injured witness Ramu (P. W. 2 ). ( 14 ) UMA Kanti deposed that at about five months prior to the occurrence marriage of his son Ram Naresh with Smt. Pyara, the wife of the accused-appellant Ram Achal had taken place. Ram Achal was, therefore, annoyed with and inimical to the members of the family of Uma Kanti. On her remarriage with Ram Naresh she brought two sons, Prakash and Padari with her and the remaining two issues were left behind with Ram Achal. Ram Achal was, therefore, annoyed with and inimical to the members of the family of Uma Kanti. On her remarriage with Ram Naresh she brought two sons, Prakash and Padari with her and the remaining two issues were left behind with Ram Achal. Two days before the incident, along with her son Padari, Pyara had gone away to the house of her relation, but Prakash continued to live at the house of Uma Kanti. ( 15 ) UMA Kanti further deposed that on the date of occurrence, Ram Naresh was in jail. She as well as her husband Raghunath had returned to their house at about 3 p. m. on the date of occurrence after meeting their son Ram Naresh in Barabanki jail. At the time of incident, there were only four persons, namely, she herself, her two children namely Tirath, Ramu and the aforementioned Prakash inside her house. She was making preparations for cooking food near the Angan of her house. The main gate of the house was bolted from inside. In the evening about half an hour before sun set (1-5-84), Ram Achal, after breaking open the Tatiya which was existing on the north-western side of her house, entered the house. He was armed with a Banka. The three children were present in the Angan of the house. Ram Achal gave a blow with Banka over the head of Tirath. An alarm was raised by her and the children. Tirath ran towards Barotha. Ram Achal gave further blows to Tirath with Banka. She further stated that Ramu and Prakash escaped and went inside the Kothri and bolted the are from inside, but Ram Achal rushed towards them. From the courtyard he took up a wooden rod (Pahara) used for thrashing paddy and broke open the door of the Kothri. Thereafter he gave the stroke of Banka on the hands of Ramu, so that the portions of both the hands of Ramu, below the wrists were cut off. Thereafter he took up his son Prakash and ran away from the main gate of the house. When he was running out with the Banka as well as Prakash in his lap, Raghunat, and the neighbours Parashu Ram and his wife were rushing towards the scene of occurrence from outside the house. Thereafter he took up his son Prakash and ran away from the main gate of the house. When he was running out with the Banka as well as Prakash in his lap, Raghunat, and the neighbours Parashu Ram and his wife were rushing towards the scene of occurrence from outside the house. Blood had fallen down in the courtyard as well as in the Barotha and the cut off portions of the hands of Ramu also remained lying in the Angan. Further Uma Kanti (P. W. 1) sworn that she, accompanied by Suresh and Sukhraj, took Ramu to police station Kurshi where first information report about the occurrence was written by the Head Moharrir on her dictation. Ramu was sent to Balrampur Hospital where he remained admitted for about a month in connection with his treatment. In cross-examination she stated that Ramu was taken on a cot by Suresh and Shukhraj up to the police station. According to her, Prakash was aged about four years when Ram Achal took him away in his lap after committing the offences. She denied the suggestion of the appellants side that at the time of occurrence, she and her husband had not returned to their village from Barabanki. She stated that while running away from her house after the incident, Ram Achal himself had opened hinges of the main gate of the house in order to get out of the house. She admitted that when she and her husband Raghunath had gone to visit Ram Naresh in Jail at Barabanki in the same morning, three children were left behind in the house. Her testimony shows that the house of Parmeshwar was situated close to her house and after the house of Parmeshwar there existed the house of one Bhuneshwar. Adjoining the house of Bhuneshwar, there existed the house of Ram Achal. She stated that when she went to the police station, she had left her husband Raghunath at her house where the dead body of Tirath was lying. Injured Ramu was sent from the police station to the hospital by Ekka. She stated that after the marriage of his son Ram Naresh with Smt. Pyara, she had no talk or altercation with Ram Achal up to the date of the occurrence. She denied the suggestion of the appellants side that Tirath and Ramu were injured in the course of dacoity at her house. She stated that after the marriage of his son Ram Naresh with Smt. Pyara, she had no talk or altercation with Ram Achal up to the date of the occurrence. She denied the suggestion of the appellants side that Tirath and Ramu were injured in the course of dacoity at her house. She stated that after lodging the first information report at the police station, she returned home at about 10 p. m. on the same day with the Sub-Inspector by his vehicle. She denied that on the date of occurrence Prakash was not living with her at her house, but on the other hand he was living with his maternal grandfather. ( 16 ) RAMU (P. W. 2) is a child witness. Before recording his deposition the trial Court had satisfied itself that the child witness was intelligent enough to understand the questions and answers and also the sanctity of oath, and it was thereafter that Ramu was administered oath before his deposition was recorded. ( 17 ) RAMU (P. W. 2) supported the prosecution case of the occurrence. According to him in the evening before sun set, about 11/2 years prior to the date of his deposition, i. e. on 27-1-86, Tirath was murdered and both of his hands were cut off by Ram Achal by means of Banka. Giving the details, he stated that at that time he himself, his mother, Tirath and Prakash were present inside the house, and out of them, the three children including himself were playing in the courtyard inside the house. Ram Achal entered the house with a Banka in his hard from the side of the Tatiya and struck the Banka at Tirath. All the persons raised an alarm. Tirath ran away towards Barotha, but Ram Achal chased him. He supported his mother (Uma Kanti, P. W. 1) by stating that his mother ran behind Ram Achal. He sworn that he and Prakash rushed and concealed themselves in the Kothri, but the door of the Kothri was broken open by Ram Achal who caught hold of him, dragged him up to the Tarwaha in the courtyard and cut both his hands over there by means of the Banka. Ram Achal took Prakash with him and ran away. Tirath succumbed to the injuries. In cross-examination he stated that his mother was not cooking food but was making preparations for cooking food. Ram Achal took Prakash with him and ran away. Tirath succumbed to the injuries. In cross-examination he stated that his mother was not cooking food but was making preparations for cooking food. According to him his parents had returned horse earlier after meeting Ram Naresh in Jail the same day. He denied that Smt. Pyara was remarried to any one else except Ram Naresh. In cross-examination he further stated that on the date of occurrence Ram Naresh was in Jail and prior to it also Ram Naresh did not live in the house but he did not know where he lived. When he was asked about how many years prior to the occurrence in question Ram Naresh lived outside the house, he expressed ignorance. He stated that after the occurrence Pyara had come to the house of his mother and stayed there. He stated that on raising of alarm, his father, Sukhraj and Suresh had come, but Ram Achal had escaped when they arrived. According to him also Raghunath had not seen the occurrence of causing the injuries to Tirath and Ramu by Ram Achal. In cross-examination he stated that he did not know what is Bhala or Chaku; but he knows Banka and "hansiya". He denied that he had become unconscious when his hands were cut by Ram Achal. ( 18 ) BOTH the witnesses, namely, Uma Kanti and Ramu relating to the occurrence have withstood the test of cross-examination. There is no divergence on any material particular relating to the occurrence. ( 19 ) THE learned counsel for the appellant contended that the deposition of Ramu (P. W. 2) deserves to be discarded for the reason that his statement under Section 161, Code of Criminal Procedure was not recorded by the Investigating Officer, and, therefore, the appellant was deprived of the opportunity to test his deposition with his earlier statement (which was not available ). It is a fact that the statement of Ramu who remained in the hospital for about a month for his treatment just after the occurrence was not recorded under Section 161, Code of Criminal Procedure But the prosecution side at the very initial stage of the trial before the oral evidence was produced in the case had moved an application pointing out the importance of the evidence of Ramu, an injured witness in this case and requested that despite the fact that his name had not been mentioned as a witness in the chargesheet submitted by the police or in the calendar sent by the committing Magistrate to the Court of Session, the prosecution side be allowed to produce him as a witness in the interest of justice. On that application dated 14-1-86 moved from the side of the State, Court ordered thus :- "heard. In the interest of justice, permission to examine the witness Ramu is granted. "19a. Under Section 161, Code of Criminal Procedure the Investigating Officer is to interrogate any person supposed to be acquainted with the facts and circumstances of the case under investigation and is to reduce the statement made to him in writing. But under Section 231, Code of Criminal Procedure the Court in the course of trial of a sessions case is to take all such evidence as may be produced in support of the prosecution. These words of Section 231, Code of Criminal Procedure do not confine production of witnesses by the prosecution side only up to those persons whose statements have been recorded under Section 161, Code of Criminal Procedure On the other hand the words all such evidence clearly signify that the right of the prosecution extends to the production of such persons as its witnesses during the course of the trial which have not been named in the chargesheet or in the calendar or whose statements have not been recorded under Section 161. Code of Criminal Procedure The prosecution side has in fact obtained permission of the trial Court to produce Ramu as a witness, as a part of all such evidence which it wanted to produce before the trial Court. In fact the trial Court accepted the request of the prosecution side made at the very initial stage of the trial for examining Ramu as a prosecution witness. In fact the trial Court accepted the request of the prosecution side made at the very initial stage of the trial for examining Ramu as a prosecution witness. The application of the prosecution side was moved and allowed in presence of the appellant. Hearing was given on this application before the trial Court allowed it. It was on a day subsequent to grant of this application of the prosecution side that Ramu was produced as P. W. 2. Ramu was in fact cross-examined on two different dates. Consequently the contention of the appellants side that he was taken by surprise so far as the production of Ramu as a prosecution witness was concerned, is devoid of force. The deposition of Ramu having been recorded by the trial Court in accordance with law with full opportunity of cross-examination having been afforded to the appellant, the sheer fact that on account of non-availability of any statement of Ramu under Section 161, Cr. P. C. , the appellant did not have the opportunity of confronting any earlier statement of the witness to him during the course of his cross-examination will not discredit the testimony of Ramu (P. W. 2) was rightly examined as a witness, nor will make his testimony inadmissible in evidence. ( 20 ) LEARNED counsel for the appellant referred to the cases Balakrushna Swain v. State of Orissa, AIR 1971 SC 804 : (1971 Cri LJ 670), Ranbir v. State of Punjab, AIR 1973 SC 1409 , Atmaduddin v. State of U. P. , AIR 1974 SC 1901 and Bhagwan v. State of Madh Pra. AIR 1980 SC 1750 . But all these cases are on the point of delay in interrogating witnesses under S. 161, Code of Criminal Procedure In the instant case statement of Ramu was not at all recorded under S. 161, Cr. P. C. , hence it is not a case of delay in recording statement under S. 161, Code of Criminal Procedure The case cited do not seem to be such in which statement of a witness not interrogated by the Investigating Officer under S. 161, Code of Criminal Procedure was recorded with the permission of the Court by invoking S. 231, Code of Criminal Procedure ( 21 ) THE testimony of the child witness Ramu (P. W. 2) is challenged on the ground that he is a tutored witness. No doubt, the testimony of a child witness is to be scrutinised carefully with due caution. In the instant case, the child witness had developed sufficient understanding. After witnessing the occurrence, he could describe it and understood the questions and answers. The trial Court has satisfied itself in this connection before recording his deposition. He had given a vivid account of the occurrence just like Uma Kanti (P. W. 1 ). He was cross-examined at length by putting to him varied and diverse questions and his answers seem to have been given on his own. Himself being attacked and injured during the course of the occurrence, he was definitely in a position to watch and thereafter narrate the happenings. It will not be correct to say that Ramu is a tutored child witness. His testimony which gets corroboration from other evidence also is reliable and inspires confidence. ( 22 ) THE medical evidence detailed above corroborates the oral testimony of the P. Ws. Uma Kapti and Ramu. Dr. Gupta (P. W. 8) who conducted the post-mortem examination and Dr. Amrik Sin (P. W. 4) and Dr. V. S. Saluza (P. W. 5) in respect of the injuries of Ramu were cross-examined, but there has come on the record nothing to discredit their testimony or in other words the medical evidence. ( 23 ) THE first information report about the occurrence was lodged at the nearest police station after an hour and forty minutes from the time of the occurrence. It was lodged at 8. 10 p. m. on the same date, i. e. , 1-5-84, while the time of occurrence was about 6. 30 p. m. The police station situated at about 4 Kms. from the place of occurrence. It is evident that the injured Ramu was taken by Uma Kanti on a cot with the help of two persons and they covered the distance on foot in order to reach the police station and on reaching the police station report was lodged at 8. 10 p. m. The first information report is prompt. It corroborates the testimony of the informant Uma Kanti (P. W. 1) and the prosecution case in all material particulars. 10 p. m. The first information report is prompt. It corroborates the testimony of the informant Uma Kanti (P. W. 1) and the prosecution case in all material particulars. It was not necessary to mention in the first information report the motive of the occurrence which concerned the remarriage of Pyara with Ram Naresh, and the fact that the informant Uma Kanti and her husband had returned to their house in the afternoon of the same day, i. e. 1-5-84 after visiting their son Ram Naresh in Jail. These are not the particulars of the occurrence. On the other hand these are the points of details which are not necessarily required in a report particularly of such occurrence as the instant one. Moreover the appellant Ram Achal in his statement under S. 313, Code of Criminal Procedure has himself admitted that his wife Pyara had remarried Ram Naresh about five months before the occurrence, while his marriage with Pyara was subsisting, the contention of the learned counsel for the appellant that the first information report is belated and is not worthy of reliance is not correct. ( 24 ) IN the instant case, the Investigating Officer has recovered bloodstained earth from two places inside the house of Uma Kanti (P. W. 1), mentioned as the scene of occurrence. This is borne out from the testimony of the Investigating Officer coupled with the recovery memos prepared. The suggestion from the appellant side put to Uma Kanti (P. W. 1) shows that according to defence version dacoity was committed at the house of Uma Kanti in the same night and in the course of that dacoity the murder of Tirath and cutting of both hands of Ramu took place. Thus, there is hardly a dispute about the place of occurrence. In the circumstances, not sending the bloodstained earth to Serologist and Chemical Examiner for ascertaining that it is human blood does not matter at all. ( 25 ) ACCORDING to the learned counsel for the appellant it is improbable that the appellant would have attacked the two brothers (viz. Tirath and Ramu) of Ram Naresh instead of Ram Naresh and his mother Uma Kanti. Ram Naresh was in jail from prior to the date of occurrence. It cannot be said whether he had any opportunity of taking revenge against Ram Naresh personally. Tirath and Ramu) of Ram Naresh instead of Ram Naresh and his mother Uma Kanti. Ram Naresh was in jail from prior to the date of occurrence. It cannot be said whether he had any opportunity of taking revenge against Ram Naresh personally. Uma Kanti (P. W. 1) no doubt ran behind the appellant after his first attack at Tirath in the course of occurrence but she did not resist, nor could check the appellant in making the assaults. Hence the appellant, it appears, did not make her his target of attack. ( 26 ) ACCORDING to the appellant he has been implecated falsely on account of enmity. He himself has not put forward anything to make what enmity according to him was. He has produced no evidence, oral or documentary. His version that he has been implicated falsely on account of enmity is not correct. ( 27 ) THERE is convincing evidence on the record to make out the prosecution case. The prosecution side having established its case against the appellant beyond all shadow of doubt, the appellant has rightly been convicted for the offence of murder of Tirath under S. 302, Indian Penal Code, for causing grievous injury to Ramu with Banka under S. 326, Indian Penal Code, as well as for the offences punishable under S. 452, Indian Penal Code He had taken away his son Prakash aged about 4 years while he was running away after the murder and assault. Neither ingredients of the offence under S. 364, Indian Penal Code nor kidnapping is made out. Hence he is not guilty of the charge under S. 364, Indian Penal Code ( 28 ) SO far as the conviction for the offence under S. 302, Indian Penal Code is concerned, the trial Court has recorded the sentence of death holding that the instant case is the rarest of rare cases, for which capital sentence is fully warranted. According to the law, as it has emerged, for offence of murder under S. 302, Indian Penal Code the sentence of imprisonment for life is a general rule, and the sentence of death is an exception. The trial Court has primarily relied on the case of Bachan Singh v. State of Puniab, 1980 SCC (Cri) 580. According to the law, as it has emerged, for offence of murder under S. 302, Indian Penal Code the sentence of imprisonment for life is a general rule, and the sentence of death is an exception. The trial Court has primarily relied on the case of Bachan Singh v. State of Puniab, 1980 SCC (Cri) 580. In the case of Bachan Singh, the Honble Supreme Court in its majority judgement has mentioned that following circumstance, besides others enumerated in the judgement, is undoubtedly a relevant mitigating circumstance which must be given great weight in the determination of sentence : "1. That the offence was committed under the influence of extreme mental and emotional disturbance. " ( 29 ) IN the instant case, Ram Naresh, the eldest son of Uma Kanti and the elder brother of Tirath and Ramu had remarried the wife of the appellant. This was done while the marriage of Ram Achal with Smt. Pyara was subsisting and had not broken. In other words the wife of the appellant was taken away by Ram Naresh who by remarrying her not only brought about disruption of the family of the appellant in relation to his wife Pyara but also caused humiliation, insult, annoyance to the appellant. Ram Achal, therefore, nurtured illwill and animosity. This was extended from the side of the appellant against the family members of Uma Kanti in whose house and with whom Pyara lived for some time after Pyaras marriage with Ram Naresh. Understandably mental and emotional disturbance of the appellant due to the marriage of Ram Naresh with his wife Pyara was persisting, he could not get right of it, despite the lapse of a few months since the remarriage. It appears from the material available on the record that Ram Naresh who at the time of the occurrence was in jail, was not available to the appellant as he remained out of the village. The persistent influence of mental and emotional disturbance of the appellant was at the back of the commission of the heinous crime of murder of Tirath and cruelly cutting of the hands of the other child, namely, Ramu, who were two of the members of the family of Ram Naresh and his mother Uma Kanti. The persistent influence of mental and emotional disturbance of the appellant was at the back of the commission of the heinous crime of murder of Tirath and cruelly cutting of the hands of the other child, namely, Ramu, who were two of the members of the family of Ram Naresh and his mother Uma Kanti. In view of the mitigating circumstance which does not seem to have been given due consideration and weight by the trial Court, it will be in the ends of justice to pass the sentence of imprisonment for life instead of death against the appellant. ( 30 ) THE appeal is partly allowed. The conviction of the appellant Ram Achal under S. 302, Indian Penal Code passed by. the trial Court is upheld. The sentence of death recorded by the trial Court against the convict appellant is not confirmed. Instead he is sentenced to the imprisonment for life under S. 302, Indian Penal Code Conviction of the appellant Ram Achal and the sentences awarded against him by the trial Court under Ss. 326 and 452, Indian Penal Code are maintained and conferred. He is acquitted of the charge under S. 364, Indian Penal Code ( 31 ) THE appellant Ram Achal is in jail. He shall serve out the sentences which will run concurrently. Appeal partly allowed. .