P. K. SHYAMSUNDAR, J. ( 1 ) THE appellant herein is one h. Umesh @ umakanthrao a young man still not turned 30 years but has now been in the shadow of death ever since he was convicted for an offence of murder and sentenced to death by hanging, by the judgment of the learned additional city civil and sessions judge, Bangalore rendered on the 8th of june, 1989. The appeal against the aforesaid judgment represents the endeavour made by the appellant to free himself from the clammy grip of the noose and the gallows. Whether he succeeds and will remain a free man breathing free AIR or whether the gallows will succeed in sucking him finally into its vortex will depend on the outcome of this appeal in which the facts are few and simple. ( 2 ) THE appellant is accused of having done to death his twin babies who had barely completed 3 months of their existence in this world after being ushered in by their mother p. w-2, savithri bai whom the appellant/accused had married a decade before the incident in this case which takes us to the yeat 1979. The accused had begotten a son by name manjunatha the first born of the couple, aged about 7 years at the time of incident which is said to have taken place on the 6th of february, 1988 in the house of p. w-2, savithri round about 4 a. m. it is the case of the prosecution the accused and his wife savithri were living a happy life following their marriage and that state of affairs continued till they moved to a house in suddaguntanapalya in Bangalore city (locality of the crime) from dasarahalli is also in Bangalore. We need mention here that p. w-2, savithri hailed from nearby anekal town within the rural district of Bangalore and after her marriage to the accused she came and settled down at dasarahalli in Bangalore as mentioned and had thereafter moved down to suddaguntanapalya. The shifting from dasarahalli to suddaguntanapalya appears to have not augured well for wife savithri because it is said after coming over to suddaguntanapalya, the accused developed intimacy with another woman by name saraswathi of bommanahalli. The shifting from dasarahalli to suddaguntanapalya appears to have not augured well for wife savithri because it is said after coming over to suddaguntanapalya, the accused developed intimacy with another woman by name saraswathi of bommanahalli. Not unnaturally this new tryst was not taken kindly by savithri but nonetheless it transpires from the facts on record that the accused used to apportion his time with his mistresses saraswathi and his wife savithri at suddaguntanapalya. While he was staying with saraswathi in bommanahalli, he used to visit his wife savithri regularly and also pay her a weekly allowance of Rs. 40/- to Rs. 50/- but this sum being hardly enough to support savithri and her children the lady herself had to work in a factory at suddaguntanapalya in order to augment the slender allowance made by the husband and in this manner she was running her own household, although she did not have adequate financial support from the husband. In due course, it so happened that savithri again conceived and later she went to her parent's place at anekal where she delivered a pair of bonny girl babies on 4-11-1987 whom she named lakshmi and chandrakala. It appears within three days of their birth, the accused paid a visit to his wife and the new born twins but on seeing them expressed his displeasure at the wife begetting not one but two female children adding severely to his already weighted economic burden running as he was not just one but two households. It appears the accused then gave vent to his displeasure and he did not stop at that but he even asked the wife to give away the children to him so thathe could finish them off ending thereby the certain hardship that was found to afflict their poverty stricken household. The wife not unnaturally is said to have protested against such a macabre proposal and to have told him that she would slave for the children and bring them up but she would not allow them to be exterminated by the husband. ( 3 ) SUBSEQUENTLY, the wife came back to Bangalore and into the house at suddaguntan apalya after spending a little more than 21/2 months at her parents' house at anekal, recouping from the ordeal of child birth. ( 3 ) SUBSEQUENTLY, the wife came back to Bangalore and into the house at suddaguntan apalya after spending a little more than 21/2 months at her parents' house at anekal, recouping from the ordeal of child birth. On her return to the house at Bangalore she picked up the normal thread of her life, getting back to her job in the factory where she was formerly working. Since she was still a nursing mother and was also a little wary about her husband's evil eye on the new Bom babies, in order to ensure the children had some one to care for them in her absence, she had brought bade with her, her eldest sister f;w-12, saraswathi bai to stay with her and to help her in looking after the children. It is said that after her return to Bangalore the husband began to visit her. The further case of the prosecution is that her neighbour p. w-6, muniswamappa who was running a hotel in suddaguntanapalya happened to visit savithri in her parents' house at anekal when he was on his way to his own in-law's village and during the visit he had occasion to see the twin daughters of savithri, had complimented her on begetting a pair of bonny and very fair children and had also cautioned her to take good care of them. Then the story runs that savithri had told muniswamappa that her husband bad tried to induce her to give away the children to him so that he could dispose them off and that she had firmly put her foot down against that astounding proposal telling him that she would strive her best to bring them up on her own if need be. ( 4 ) NOW picking up the narration leading to the ghoulish incident that had rendered two little babies mute and lifeless and before we advert to the somewhat unusual but macabre developments we need to mention here that savithri's house was bounded on one side by the house of p. w-6, muniswamappa and opposite to her house was a tap from where every one in the neighbourhood collected water and one of her neighbour was p. w-5, gajendra it is said had stopped at the tap in the early hours of the morning of the 6th instant for collecting water and at that time he had seen a light inside savithri's house had found the accused staring outside the house then and he ofcourse did not know what had happened inside savithri's house at that time. We have no direct evidence but in its place prosecution claims to have produced substantial evidence of unimpeachable character telling with certitude the tale of the dybolic murder of the two children inside that house. We are once again taken back to the previous night starting with the visit of the accused to savithri's house where he is said to have arrived on his bicycle m. o. No. 7 at about 9 p. m. he settled down to a meal and had stayed on for the night. Savithri's house according to the spot panchanama which is at ext. P-28 was just a one room tenement measuring 10' x 7' part of which i. e. , the rear portion serving as the kitchen the rest of it serving as the living room and bed room for the entire family. The spot panchanama also indicates that good part of the front portion of the room was occupied by two cradles fixed to ropes danging from the ceiling. The cradles probably were used by the two babies and in the space rather whatever was left is stated to her served the needs of the regular inmates of the house being savithri, her sister saraswathi, savithri's son manjunatha and the two babies. The cradles probably were used by the two babies and in the space rather whatever was left is stated to her served the needs of the regular inmates of the house being savithri, her sister saraswathi, savithri's son manjunatha and the two babies. On the night of the incident the accused having come for a over night stay sister saraswathi had to move out next door to the house of p. w-6, muniswamappa for the night and p. w-6, muniswamappa in his evidence mentions about the moving over of saraswathi on that night to his house because the accused was visiting his wife. The further case of the prosecution, we may at this stage observe that in the whole of the prosecution evidence there is no reference to any one having seen the accused entering savithri's house on that night. Be that as it may, the story runs, on that night savithri had settled down along with her husband, small babies and son manjunatha after sister saraswathi moved away to stay over in the neighbour's house but had kept a special vigil fearing that the husband might do something untoward to the children. But in the early hours of the morning when she could not any longer fight nature and sleep she had finally passed into a fit of slumber but when she woke up she found to her horror both her husband and the sisters who were sleeping next to her were missing. She came out and cried for muniswamappa to wake up, saying "munna, munna eddelu makkalilla" and thereafter came out into the open by which time p. w-6, muniswamappa, p. w-5 k. Gajendra and p. w-12-saraswathi bai gathered there and to them she mentioned that the children who were sleeping with her were not now there and the husband had also vanished with them. Muniswamappa and others are said to have consoled her and asked her to go to the neighbouring police station at madivala to lodge a complaint with the police about the missing children and husband. Muniswamappa and others are said to have consoled her and asked her to go to the neighbouring police station at madivala to lodge a complaint with the police about the missing children and husband. According to p. w-12 saraswathi, savithri went to the police station at madivala laid information about the missing husband and children and had her own statement was recorded by the station house officer-p. w-17, head constable who however did not take any action being of the view that the husband being a resident of bommanahalli directed her to go to the mico layout police station to set the law in motion. It appears when the two women told the station house officer that they did not know the whereabouts of mico layout police station, p. w- 17 K. V. Ramachandra (a. s. i.) sent p. c. No. 7387 of madivala p. s. with instruction to take p. w-2 to the mico layout police station. On arriving at mico layout police station had formally lodged a complaint voicing her apprehension about the evil hand of her husband in causing the disappearance of her babies. The complaint was recorded and the first information report sent to the court and a case of missing persons was registered in crime No. 40/1988. By then some people having noticed bodies of two baby girls lying in a gutter under a bridge nearby mentioned it to p. w-2 who rushed to the place found to her horror the corpse of her children. By then the inspector of police of the mico layout police station having arrived at the police station, received the complaint and had met with p. w-2 ascertained from her the two dead children were really hers. It appears thereafter he sent her to the husband's house at bommanahalli along with a constable who was later questioned about the whereabouts of the children but the latter having given evasive answers he was then brought to the police station where he was arrested and charged with the murder of his kids. It appears thereafter he sent her to the husband's house at bommanahalli along with a constable who was later questioned about the whereabouts of the children but the latter having given evasive answers he was then brought to the police station where he was arrested and charged with the murder of his kids. A fresh first information report was sent to the court accusing the husband of having committed murder and thereafter on interrogation the accused is said to have volunteered information as per ext p-27 and then lead to the police a nearby spot where he pointed out to a piece of cloth m. o. 1 lungi sticking inside a bush and the same was attached under a mahazar ext. P-6 in the presence of panchas namely p. w-4 pyarejan and two others. The inquest over the dead babies were conducted as per inquest mahazar at ext. P-1 and the dead bodies were despatched to the mortuary at the victoria hospital. From post mortem examination eventually conducted by Dr. S. b. patil, who found fractured injuries on the ribs and chest of the deceased all of them were antemortem and fresh in nature. He found death was due to traumatic asphyxia as a result of compression of the chest by external force. The doctor found ribs 1 to 8 on both sides of the chest were fractured at 8 cms from the vertebral column periosteum torn on the outer side of the ribs. He was however unable to guess the time of death because the bodies had been kept in cold-storage at the mortuary. In the cross-examination he says:-". . . . . . . IF a person happens to accidentally place his foot on the chest of a baby the fractures of the ribs noticed by me could be caused. I did not notice visible external marks for the internal fracture injuries in the dead-bodies. " ( 5 ) IN the meanwhile, the cycle belonging to the accused was also seized from his house, again on information furnished by him. The cycle was probably seized to make out the mode of transporting the dead bodies of two babies from the house of p. w-2 to the place where they were found. Subsequently, at the trial the complainant savithri and p. w-12-saraswathi both turned hostile denied the presence of the accused in the house of savithri on that night. The cycle was probably seized to make out the mode of transporting the dead bodies of two babies from the house of p. w-2 to the place where they were found. Subsequently, at the trial the complainant savithri and p. w-12-saraswathi both turned hostile denied the presence of the accused in the house of savithri on that night. P. w-2-denied the complaint given by her to the police voicing her apprehension about the accused, connecting him with the disappearance of the children. Sister saraswathi (p. w-12) also followed suit in denying the very pertinent statement made to p. W-6 muniswamappa that she had to come out of p. w-2's house because the accused had come to visit her wife and she could not stay with sister savithri for want of space. One significant development in that behalf is the refusal of savithri p. w-2 to support the statement of p. w-6 muniswamappa that she had told him about the savage intention expressed by the accused when he visited the children soon after their birth at anekal and urged her to give away the children so that he can finish them off as he feared later they would become a bothersome burden to him. Question arises whether in those circumstances if the person before whom the accused is said to have made the statement having not reiterated it before court the repetition of the same by the person to whom the statement was transmitted would render such evidence hear say and therefore in admissible. We shall advert to it a little later. We may mention that in due course the case reached the sessions court after committed to that forum by the court of the metropolitan magistrate, iii court, Bangalore city, in c. c. No. 1471/1988 wherein he was tried as mentioned earlier on the charge of having committed the murder of his children by trampling upon them, thereby committed an offence punishable under Section 302 of the Indian Penal Code. ( 6 ) THE learned judge on a consideration of the totality of the evidence on record says that the prosecution had made out a fool proof case against the accused and that he therefore finds him guilty of the charge with which he stood indicted. ( 6 ) THE learned judge on a consideration of the totality of the evidence on record says that the prosecution had made out a fool proof case against the accused and that he therefore finds him guilty of the charge with which he stood indicted. After having thus held him to be guilty, the learned judge felt that accused having committed not one but two murders both accomplished with a deadly design that was clearly cold-blooded in nature, the accused therefore deserves the most condign punishment of death by hanging. Accordingly, it is he imposed the sentence of death and thereafter made a reference to this court for confirmation of the aforesaid sentence. Confirmation proceeding is numbered as criminal referred case No. 5/1989 for confirmation alongside this appeal. ( 7 ) WE have heard Mr. Samba murthy, who appears in support of this appeal and the learned additional state prosecutor who appears for the state and supports the reference made by the learned judge as also the judgment out of which this appeal arises. Before we deal with the submissions of counsel in either side we wish to take note of one of the salient features of this case on which the learned judge has relied for the most part based on evidence ofthe investigation comprising in all twenty and odd witnesses examined on behalf of the prosecution most of whom were of either police officers or others such as doctors, assistant engineer etc. , Etc. , With the rest being a couple of panchas being part of the essential ancillary of investigation. Otherwise the case rests only on the evidence of p. ws. 2,3,5,6 and 12 who have had some role in unfolding the case ofthe prosecution which amongst others rests chiefly on savithri bai p. w-2 her sister p. w-12-saraswathi both of whom turned hostile and denied the statements made by them before the police with the result the evidence of these witnesses was practically of no use to the prosecution except perhaps their understandable hostility towards the prosecution and their steady refusal to implicate a blood relative like the husband of p. w-2 savithri would certainly lead to an inference that they had all fallen in line, just to save the accused from the probable consequences of a criminal act. ( 8 ) BUT then it has to be pointed out that whereas it may be possible to censure these witnesses for deliberately thwarting the result of the case we cannot however presume the case of the prosecution as projected at the trial to be proved by the evidence of those who had tried to sabotage the prosecution case. Be that as it may, the learned judge in the course of his judgment culled out as may as 12 points in incriminating the accused. According to him each one of them was a circumstances almost deadly in nature incriminating the accused amply and fully. Following are the circumstances relied upon by the learned judge. 1) that both female babies of p. w-2 savithri were trampled to death in the early hours of 6-2-1988 in her house at suddaguntanapalya in Bangalore city and their dead bodies were then carried bundled in m. o. 1, lungi and were thrown in the said drainage at a distance of about one furlong from the house. 2) that the dead bodies of both babies were spotted lying in the said drainage within 2 to 3 hours (i. e. , by about 8 a. m.) of their missing. 3) that the accused on seeing his said twin daughters in his in-law's house at anekal soon after their delivery by p. w-2, nurtured his intention to get rid of them once for all. 4) that though the accused was living with his concubine at bommanahalli (in Bangalore), he maintained his sound marital relations with his wife p. w-2 savithri and was frequently visiting her at suddaguntanapalya, with the result he had abundant opportunity to do away with his both daughters. 5) that on the night of incident the accused did visit the said house of his wife p. w-2 savithri at suddaguntanapalya and slept there during that night, which stay of his necessitated his sister-in-law p. w-12-saraswathi to go to the neighbour p. w-6 muniswamy's house and pass her night there. 5) that on the night of incident the accused did visit the said house of his wife p. w-2 savithri at suddaguntanapalya and slept there during that night, which stay of his necessitated his sister-in-law p. w-12-saraswathi to go to the neighbour p. w-6 muniswamy's house and pass her night there. 6) that on the night of incident both babies were made to sleep on m. o. 1 lungi by their mother (p. w-2) on the floor of the hall in their house, and that before going to bed the doors of the house were closed and bolted from inside by her, and that apart from herself, accused and their three children none else was present and sleeping with them in the house on that night. 7) that around 4 a. m. in the early morning the door of the house (of offence) was half open, electric bulb was burning in the bouse and the accused was seen present and coming out of the house by p. w-5 gajendra. 8) that within half an hour thereafter p. w-2 savithri came out of the house shouting and screaming that her babies were missing, and attracted by her cries her sister (p. w-12) and p. w- 6 came out of his house and other neighbours (including p. w-5) also gathered there advising and consoling her, and that the accused had also disappeared from the house. 9) that then p. w-2 and p. w-12 searched for the missing babies in the neighbourhood, but they were not traced. 10) that after searching for the babies both p. w-2 and p. w-12 visited madivala police station by about 6. 10 a. m. complaining against accused before the sho (p. w-17 ). 11) that from madivala police station p. w-2 (with p. w-12) was sent to the jurisdictional mico layout police station by p. w- 17 where they appeared before the sho (p. w-18) at about 6. 30 a. m. complaining against her husband-accused for missing of her babies. 12) that after seeing the dead bodies of her babies in the said drainage at the instance of p. w-16 (psi), p. w-2 gave her oral complaint against accused per et. P-3 before p. w-16, on the basis of which regular criminal case in cr. 30 a. m. complaining against her husband-accused for missing of her babies. 12) that after seeing the dead bodies of her babies in the said drainage at the instance of p. w-16 (psi), p. w-2 gave her oral complaint against accused per et. P-3 before p. w-16, on the basis of which regular criminal case in cr. No. 40/1988 was registered against accused and formal investigation of the case of murders of his said two female babies was taken up by the police. ( 9 ) IT seems to us that a mere perusal of the points adumbrated by the learned judge as aforesaid will indicate the futile endeavour made by him by treating the aforesaid aspects as factors that had been established to the hilt. Be that as it may the points that now arise for consideration are: 1) homicidal nature of the death of the two children. 2) the liability of the accused. ( 10 ) IN deciding the above points we propose to examine a few of the points raised by the learned judge. We refer to circumstance No. 1 namely the factum of trampling, to death of the two children in the early hours of the morning in the house of savithri and the dead bodies being carried bundled in m. o. 1-lungi before dumped into a drain was at a distance of one furlong from the house. The 3rd circumstance referred by the learned judge reads:"that the accused on seeing his said twin daughters in his in-law's house at anekal soon after their delivery by p. w- 2, nurtured his intention to get rid of them once for all". ( 11 ) BOTH circumstances appear to us to be merely tell tale and renders little assistance to conclude that the killing of the children was really at the hands of an offender who was none other than the accused. There is absolutely no evidence to make out that the two children were trampled to death by any one and much less by the accused inside the house of p. w-2. This occurrence said to be based on the opinion of doctor patil-p. w-9 who conducted autopsy. There is absolutely no evidence to make out that the two children were trampled to death by any one and much less by the accused inside the house of p. w-2. This occurrence said to be based on the opinion of doctor patil-p. w-9 who conducted autopsy. The doctor in the cross examination mentioned and we have already excerpted the doctor's opinion which is to the effect that accidental placing a foot on the chest of the children would suffice to crush the ribs that had eventually lead to their death. We must remember that the children were of such tender age so that either to maim them or kill them little effort would be necessary and herein the doctor points out the mere placing of a foot would suffice to cause death by the fracture of the ribs. In order to sustain the charge of murder it is needless to add that death in the case should be homicidal in nature. In other words, it goes without saying it should neither be accidental nor suicidal. While we can certainly Rule out the possibility of suicide in this case, the victims being 3 months old infants, the question arises whether possibility of death being accidental cannot be ruled out at all. It does however seem to us that there is some possibility of death being accidental in character, the children having accidentally met with their end when the foot of an adult had been placed on them. For this purpose we shall assume that the accused who disowns his presence on the night of the incident inside p. w- 2's house was in fact present and had spent the night in that house which means in that skimpy space which could not be more than 121/2, regard being had to the fact that part of it was kitchen and part of it was bed room with a gopd lot of space being taken away by the over-hanging cradles, the small residual area had to be shared by the accused, his wife the two babies and their son manjunatha a seven year old boy. It is not difficult to imagine that during the night some one or the other i. e. , the husband or the wife having rolled over or got into a manoeuvre causing the placing of a foot on the children may be momentarily but leading ultimately to their mortality. This situation not being wholly implausible and as one that could be treated as wholly improbable, it seems to us such a deduction would not in the circumstances of the case be out of tune as well. It may well be after becoming aware of the children's death and having assisted in the disposal of the bodies p. w-2 might have thereafter panicked of her action in implicating her husband, she bad withdrawn her support to the prosecution by turning hostile. ( 12 ) LIKE wise, the other witnesses who could have helped the prosecution in establishing the presence of the accused was saraswathi - sister-in-law of p. w-2 savithri who was staying all along with savithri and the children and in the very nature of things a person who would have certainly known about the visit of the accused to savilhri's house on that night. While she did state so much before the police during the course of her statement recorded by the investigating officer she later went back on her statement and slipped into a different version in explaining the cause of his over-night stay in the house of muniswamappa. She said she had gone over and spent the night in muniswamappa's house because the latter's wife jayamma had asked her to stay with her children as both of them were going out and returning late in the night to the bouse. In the cross examination she denied the version she had made to the police and went on to affirm the version made at the trial. But p. W-6 muniswamappa stated in his evidence that saraswathi had moved over to his house on that night and had sought leave to spend night in his house because the accused had been visiting his wife that night. But p. W-6 muniswamappa stated in his evidence that saraswathi had moved over to his house on that night and had sought leave to spend night in his house because the accused had been visiting his wife that night. But muniswamappa could not otherwise speak to the presence of the accused in the p. w-2's house on that night because he had never seen him on that night and his information about the visit of the accused to that premises was what he had learnt from p. w-12-saraswathi had given a go-by to that version the statement of muniswamappa regarding the visit of the accused to his wife's house on that night being clearly not of a person who had seen the accused anywhere in the vicinity of that place in the night is really of any materiality to the prosecution. But then, the prosecution depend on the evidence of p. w-5 gajendra who stated that in the early hours of that day when he and his family members were waiting to collect water from the tap outside the house of p. w-2 he then noticed the door of the said house left ajar only the light inside the house burning and that in that light he had seen the accused coming out of the house. But it transpires from his cross-examination that he had told the police that he has only seen the accused standing in front of p. w- 2's house looking here and there at the material point of time. Regrettably there appears to be no direct challenge to this witness suggesting to him that in his statement to the police he had not stated them that he had seen the accused coming out of the house. On the contrary in the cross-examination a reiteration of having made such a statement before police is elicited. The learned judge has made a note in the evidence of this witness setting out what he has stated before the police being only that he had seen the accused peeping into p. w-2's house while standing outside. The statement made before the police and the statement made to the court asserting that he had also told the police about seeing the accused coming out of the house is contoradictory. The statement made before the police and the statement made to the court asserting that he had also told the police about seeing the accused coming out of the house is contoradictory. It is evident that if he had not told the police as he now says that he had seen the accused coming out of the house and had instead told them that he had only seen him looking here and there while standing outside. This being an important omission occurring in the evidence of this witness touching the presence of the accused inside the house of p. w-2 on that night; then the proper thing for counsel appearing for the defence to do was to have posed a direct challenge to the witness suggesting to him that he had not told the police that he had seen the accused coming out of the house on that night and that he had instead told the police he had seen the accused standing outside and peeping into the house of p. w-2. Thereafter it should have followed up by an appropriate question to the investigating officer touching the version put forward by the witness during the course of the statement recorded during investigation. ( 13 ) EVEN if the learned counsel for the accused had been a little remiss in this behalf the court should have adopted the proper procedure enjoined by law to which the court could not certainly profess to be a stranger. ( 14 ) BE that as it may from the fact that this witness had told the police something different from what be had been telling the court making him out to be a person who could trim his sails, according to the wind. The fact remains even accepting what he says to be true and taking it for granted that he had seen the accused coming out of the house of p. w-2 on that night, the witness not going a step further and speaking to the alleged conveying of the bodies of the children from the house by the accused or of having seen the accused carrying the bodies from the house of p. w-2 on that night while stepping out from the house is a further aspect that brings into disarray the evidence of this witness making it impossible for acceptance. This witness was the only person who claims to have seen the accused on that night and his evidence is of little use if after the accused wentaway, p. w-2 came out weeping and howling about her missing children making it somewhat obvious that the husband had taken away the children but if this witness speaks only to the disappearance of the accused without any burden on his hands, one may very well doubt whether he had seen the accused on the night at all. What is more if he told the police and there is no difficulty about it that he has seen the accused standing outside the house of p. w-2 and darting a carefulglance inside that house but he asserted before court that he had seen the accused coining out of the house which was certainly a far cry and marked a sea change that rendered his evidence totally suspect/what is more why at all in that late hour almost early morning he should be out in front of the house of p. w-2 and it being nobody's case that there was any commotion in the house of p. w 2 and the pretext put forward is that he was collecting water from the tap outside house of p. w-2 cannot in the absence of some other material would support suggesting the contingency of the witness being out at that hour collecting water from the tap because water was available only at that hour. It is this aspect which makes one somewhat skeptical about the evidence of this witnesses rendering it unsafe for being acted upon. Therefore it seems to us that the evidence of this witness registering the presence of the accused in the house of p. w-2 to be unnatural cannot be availed of and we think the learned judge erred in relying on this witness. ( 15 ) IF p. w-5 is discarded from consideration and the evidence of p. w-6 recording the visit of the accused to the house of p. w-2 is not to be acted upon because his information is indirect in nature and the resiling of support by p. w-2 to the prosecution's case regards the aforesaid aspect further falsifies the evidence of p. W-6 in that behalf. We are then left only with the complaint of p. w-2 to the police in which there is a statement that the husband had visited her on that night and he had taken away the children from the house and had killed them and dumped them in a gutter in the bannergatta road. The learned public prosecutor in this court and the learned judge in the court-below have both strongly relied on the aforesaid complaint of the p. w-2 at ext. P-3 which has formed the basis for the case against the accused being in fact the first information in the case lodged apparently after a few hours of the occurrence. But the witness denied the incriminating aspect of her statement marked at ext. P-3 (b), (c), (d), (e), (f), (g) and (h) upto (j ). In fact p. w-2 practically denied the whole of the statement purportedly made to the p. s. i. of the mico layout police station, later examined as p. w-16 and had in the course of his evidence proved the statements supposedly made by p. w-2 to him while recording ext. P-3. But what we really fail to see as to how the prosecution can claim to piofit by the trundted version of what now remains of the complaint at ext. P-3. All said and done, ex. p. 3 statement can be only used to contradictot to corroborate the maker and beyond this it is of little use. Ext p-3 is the first information report in the case and as enj oined by Section 154 of the cr. P. c. it can only be used to corroborate or contradict the maker and outside thereof its utility is limited to the use made by the prosecution to set the law in motion against the person implicated in the first information report. This aspect is made clear by two decisions of the Supreme Court. See in this connection aghnoonagesia v State of bihar, AIR 1966 SC 119 and nisarali v State of Uttar Pradesh, AIR 1957 SC 366 . This aspect is made clear by two decisions of the Supreme Court. See in this connection aghnoonagesia v State of bihar, AIR 1966 SC 119 and nisarali v State of Uttar Pradesh, AIR 1957 SC 366 . In a, nagesia '$ case it is held as follows:"the first information report recorded under Section 154, criminal p. c. as such is not substantive evidence, but may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 25 of the Evidence Act. " ( 16 ) BUT then the question having arisen to what use such a report could be put touse the Supreme Court in nisar ali's case at head note (a) to the said decision pointed out:"a first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157, Evidence Act, or to contradict it under Section 145 of that act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses". if this limitation under the law is borne in mind and in that light the evidence of p. W- 2 is seemed in experience with the material portions of the ext. P-3 is taken into account what follows is that the prosecution itself had successfully contradicted p. w-2 with reference to her own statement, the earliest in the chain being the fact where she had categorically implicated her husband. But then now that she has chosen to recant from that stand, the disowned statement at ext. P-3 is taken into account what follows is that the prosecution itself had successfully contradicted p. w-2 with reference to her own statement, the earliest in the chain being the fact where she had categorically implicated her husband. But then now that she has chosen to recant from that stand, the disowned statement at ext. P-3 except for making out that p. w-2 who had made that statement had wilfully gone back on it, with the obvious intention of saving her husband does not go any further and certainly will not assist in establishing the charge revetted against the accused of having killed the children and later of having disposed off the dead bodies. If this be the only out-come of the hostile attitude of the p. w-2, however much one may blame her the same certainly does not however bring any solace to the prosecution who will have to depend on other evidence if available for establishing the charge levelled against the accused. The first information report at ext. P-3 after its retraction cannot now be used to gun down the accused of the charge of having murdered his children. But then it is urged that the circumstance of p. w-2 (savithri) having gone back on the complaint at ext. P- 3 is perse an incriminating factor to be taken note of and in this connection reliance is placed on the decision of the Supreme Court in ramkumar pande v The State of madhya pradesh, AIR 1975 sc1026. That was a case in which the first information report omitted to mention the injuries alleged by inflicted on the deceased and that omission was treated as significant in the circumstances of the case and was held ultimately to affect the credibility of the version put forward by the alleged eyewitness buttressed by the further circumstance that the names of the persons who were examined at the trial as witnesses had not been mentioned in the first information report these omissions bearing on crucial aspects of the prosecution's case were treated as affecting the probabilities and the court therefore held the omission should be treated as relevant under Section 11 of the Indian Evidence Act in judging the veracity of the prosecution's case. Head note (c) to the decision brings out the enunciation thus: "no doubt, an F. I. R. is a previous statement which can, strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case". ( 17 ) BUT we do not really see how this decision can possibly assist the prosecution to prove the charge of murder levelled against the appellant this is a case in which there was not or any positive reference'to the accused in the first information report at extp. 3. The complainant having later retracted the statement she had been cross- examined with reference to those statements apropos ext. P- 3 which she had again denied having made those statements. The argument that the witness having retracted her statement under ext p-3 since it would be harmful to her husband and in that situation she may be subjected to the odium of being treated a perjurer, that does not improve matters for the prosecution who stand to gain nothing by contradicting the witness with reference to the recitals in the first information report. It only debunks the witness and does not prove the truth of the statements made thereunder. When positive evidence is unavailable whatsoever the reason may be, it is not open to the prosecution to urge that their case was on the balance of probabilities true and thus claim to have succeeded in establishing the guilt to the accused. We do not think it is possible in law to permit this kind of a journey from a negative facet to a positive result it therefore seems to us that the prosecution in vain relies upon the deliberate denial of support by p. w-2 to the prosecution claim in vain to treat as a plus point supporting the probabilities of the case projected against the accused. We are afraid there is little merit in this argument. For the reasons mentioned above, we are constrained to discard the same. ( 18 ) WE now advert to a further sequence in the prosecution case viz. , The alleged motive, that had propelled the accused in committing the crime. We are afraid there is little merit in this argument. For the reasons mentioned above, we are constrained to discard the same. ( 18 ) WE now advert to a further sequence in the prosecution case viz. , The alleged motive, that had propelled the accused in committing the crime. Their case is the accused had never liked the twin babies because it had added to his burden of having to support the children and later to establish them in life, something that was extremely difficult in the case of girls. The man being almost in impecunious circumstances weighed as he was in this case by an additional establishment of the other woman with whom he was living at bommanahalli from where he was taken by the police, he could ill-afford the new born babies and that is why it is said he had suggested to p. w-2 savithri while she was still in her mother's house at anekal to hand them over to him so that he could dispose them off. There is however no direct evidence on this aspect of the matter. The suggestion allegedly made by him to the wife as aforesaid has been denied by the wife but some credibility to the aforesaid, statement of the accused is sought to be bestowed by the testimony of p. w-6-muniswamappa who in the course of his evidence adverted to this aspect of the matter as follows: "on my way to hompalaghatta I visited p. w-2's parents house to see her on coming to know of her delivery. Then I saw her both twin female babies in her parents. They were shown to me by p. w-2 savitri bai herself. On seeing those babies I said that the babies were fair looking, and askedp,w-2 to look after them well-" then p. w-2 told before me that although her newly born both daughters were fair looking her accused-husband had told her that he was going to kill them. Then I told her to take care of those babies and maintain them well. " With reference to the above statement he has been cross-examined. Suggestion has been made to him that he had not gone to anekal area and having visited the house of p. w-2's parents and that p. w-2 had never made such a statement to him. Then I told her to take care of those babies and maintain them well. " With reference to the above statement he has been cross-examined. Suggestion has been made to him that he had not gone to anekal area and having visited the house of p. w-2's parents and that p. w-2 had never made such a statement to him. As already mentioned p. w-2 does not back this aspect of the prosecution's case and has thoroughly disassociated herself with the aforesaid statement supposedly made to her by p. w-6 adverting to the animosity of the accused towards the children. This aspect is contradictory to the statement of p. W- 2 is clearly hit by the rules of hearsay. The learned sessions judge has however relied on the evidence of p. w-6 to bold that the accused had the necessary animus to do away with the children and that circumstance favoured a finding of guilt. ( 19 ) RULE against receiving of hearsay evidence is a very salutary Rule designed to save people from indirect indictment on the basis of testimonial assertion which is perse not direct in character. It is an axiomatic principle of law that the best evidence available must be produced before court for consideration and proof should never fall short of such excellence in standard. Section 60 of the Indian Evidence Act is in point (the relevant portion extracted ). It is an axiomatic principle of law that the best evidence available must be produced before court for consideration and proof should never fall short of such excellence in standard. Section 60 of the Indian Evidence Act is in point (the relevant portion extracted ). K'oral evidence must, in all cases, whatever, be direct; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which coul d be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner, if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;" ( 20 ) PHIPSON on evidence, 13th edition, chapter 16 page 329 explains the Rule in english law against reception of hearsay evidence as follows:"former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them, unless they were made by a party or in certain circumstances constitute admissions of facts relevant to those proceedings (see chapters 19-22 ). The Rule at common law applies strictly to all classes of proceedings, and there is no special dispensation for the defendant in a criminal case. Simple as this fundamental Rule is, in principle if not in application, there nonetheless exists "a superstitious awe. . . About having any truck with evidence which involves a's telling the court what b said". ( 21 ) THE learned author at page 330 refers to the following statement by stephen and cross regarding 'hearsay' evidence: "a statement oral or written made otherwise than by a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. Cross. Cross. A statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated". ( 22 ) HE then adverts to the following logic behind the exclusion of hear say evidence:"in more recent times, rejection, even where such evidence was "best" obtainable, has been based on its relative untrustworthiness for judicial purposes, owing to (1) the irresponsibility of the original declarant, whose statements were made neither on oath nor subject to cross-examination (2) the depreciation of truth in the process of repetition and (3) the opportunities for fraud its admission would open; to which are sometimes added (4) the tendency of such evidence to protract legal inquiries, and (5) to encourage the substitution of weaker for stronger proofs". ( 23 ) WE do not think the Indian law of evidence is any way different from what obtains as aforesaid in england. Albeit there is no direct reference in our law of evidence to 'hearsay' which as pointed out by the learned author sarkar in his work on evidence, 12th edition, page 529, it would be useful to refer to the following in this context :"the term 'hearsay is rather ambiguous and misleading and it has therefore been purposely excluded from the Evidence Act. As pointed out above, in its narrow sense, it means statements made out of court which are used to prove the truth of the matters stated. What is commonly known as 'hearsay' is secondary evidence of any oral statement given orally". ( 24 ) THE privy council in subramaniamv public prosecutor, 1956 (1) wlr 965, 970, privy council explained the ambit of the Rule of hearsay as follows:"in ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other persons in whose presence the statement was made. " (emphasis supplied) ( 25 ) THAT was a case in which the appellant wanted to give evidence of his conversation with a gang of terrorists but such evidence of conversation with the terrorists was held not admissible unless the terrorists were called to give evidence. Their lordships while discounting the view of the trial judge, made the foregoing observations pointing out that evidence of a statement made to a person by another not called to give evidence was admissible not in proof of the truth of that statement but merely to show that such a statement had in fact been made to the witness by the otherperson. (emphasis supplied) ( 26 ) THE learned counsel for the appellant cited a decision of the Supreme Court in bhugdomal gangaram and others etc. V the state of gujrat, AIR 1983 SC 906 . Herein their lordships while adverting no the ambit of Section 60 of the Evidence Act pointed out that if a witness gave evidence of having received some information from another person but the latter was not examined, then the testimony of the witness who spoke to information received by him from the other is not admissible. "head note (b): witness testifying as to information being given to him about "p" being manager of truck involved in a crime, by specified person-latter not examined-testimony of witness is not admissible". ( 27 ) BUT then the learned public prosecutor submits that in this case the inform antmuniswamappa p. w-6 later having been examined there could be no objection for accepting the evidence of p. w-6 muniswamappa touching the motive aspect and the same can no longer be impeached as "hearsay". He replied on the decision of the Supreme Court in ramratan and others v The State of rajasthan, AIR 1962 SC page 424. He replied on the decision of the Supreme Court in ramratan and others v The State of rajasthan, AIR 1962 SC page 424. It seems to us that unless the fact of the matter is clearly established i. e. , of the accused having told his wife of his desire to do away with the children and that would be established only on the evidence of the wife who now denies having made such a statement to p. w-6 - muniswamappa, his claim of having heard her say the sanguine declaration of the husband expressing the desire to do away with the children, does not advance the prosecution case at all but the case is still very much within the Rule against hearsay and is not rescued from the attendant disability of p. w-2-savithri having thoroughly denied having heard her husband making such a declaration to her, and at any rate the evidence of p. w-6 cannot be received in proof of the truth of the statement supposedly made by the accused to his wife. Granting that we may countenance the argument that p. w-2 was lying in order to save her husband, even then from her conduct as aforesaid no inference can be drawn to support a motive, that is said to have inspired the accused to commit this foul crime. Therefore even if we treat the statement of p. w-6 as merely limited to the fact of p. w-2 having made such a statement to him, so long as it cannot be treated as proof of the truth of the statement, the mere fact some evidence is led to show he had at one time made such a statement an aspect which is once again denied renders negatory the probative force of any such information and bestows no advantage to the prosecution. Therefore, it seems to us that albeit the cause for the crime being in this case a very necessary input to support the charge against the accused, cannot be said to have been established satisfactorily. ( 28 ) IN state (Delhi administration) v gulzarilal tandon, AIR 1979 SC 1382 ,their lord ships have pointed out regarding the requirement of establishing a motive for the commission of a crime where the case of the prosecution rests purely on circumstantial evidence. ( 28 ) IN state (Delhi administration) v gulzarilal tandon, AIR 1979 SC 1382 ,their lord ships have pointed out regarding the requirement of establishing a motive for the commission of a crime where the case of the prosecution rests purely on circumstantial evidence. The relevant dicta excerpted at head note 'a' is as follows:"in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused, it is also well settled that the accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of the accused. "the following dicta at head note 'c' which is relevant reads: "even where the circumstances raise a serious suspicion against the accused, suspicion however grave it may be, cannot take the place of proof. (emphasis supplied) ( 29 ) THE resulting position therefore is the motive angle very necessary to beestablis hed against the accused has remained linestablished. Judged strictly from this legal angle, the out-come of the discussions of the prosecution's case yields the following result : (1) the homicidal nature of the death of those two children cannot be held to have been established as the rectum of the children being accidentally trampled upon cannot be ruled out. (2) the presence of the accused in the house of p. w-2 on the night of the occurrence is not established on clear and cogent evidence. (3) the motive for the crime very essential for the purpose of incriminating the accused has not been established. (4) taking a most favourable view of the prosecution's case the needle of suspicion points out also to p. w-2 a likely participant in the crime for one cannot appreciate the circumstance that she could have been a silent witness to the wilful stamping of her children by the accused and could not plead ignorance of this ghoulish act although she was sleeping next to them. ( 30 ) THESE features in the prosecution's case makes her almost an accomplice and therefore whatever she had stated to the police from which she has now backed out completely cannot be accepted as gospel truth. ( 30 ) THESE features in the prosecution's case makes her almost an accomplice and therefore whatever she had stated to the police from which she has now backed out completely cannot be accepted as gospel truth. It must also be remembered and we are referring the fact that p. w-2 had an undisputable grievance against the appellant because he had taken a concubine resulting in p. w-2 being forced to share not merely the appellant with the other woman but his means of support to the family as well a circumstance that once again gives rise to a lurking suspicion that there might have been an asassiduous effort by her to involve the accused and later realising the serious consequences that stretched as far as the husband being either jailed for life or even being hanged which is presently the situation in which the husband is placed, the woman had possibly committed an volteface in a frantic effort at rescuing the husband. The evidence of the prosecution opening up so many options one fails to see how they can claim to have salvaged the case from the shambles into which it had been reduced to, with crucial witness like P. W-2, P. W-12 having withdrawn their support. It therefore seems to us, the court-below was in error in accepting the prosecution's case as having been so fully and completely established justifying the conviction of the accused for the offence of murder as also the sentence imposed on him. ( 31 ) FOR the reasons mentioned (supra), being of the contrary view, must therefore proceed to accept the appeal by the accused and reject the reference made by the learned judge for confirmation of the death sentence imposed on the accused. ( 32 ) THERE is however a further charge against the accused of having subboned the evidence relating to the murder punishable under Section 201 of the Indian Penal Code. It is needless to add now that the accused has been acquitted of the principal charge of murder the lesser charge of the offence under Section 201 of the Indian Penal Code, which is an auxiliary to the charge and under Section 302, I. P. C. should fall to trie ground. It is needless to add now that the accused has been acquitted of the principal charge of murder the lesser charge of the offence under Section 201 of the Indian Penal Code, which is an auxiliary to the charge and under Section 302, I. P. C. should fall to trie ground. But, then, since the offence under Section 201, I. P. C. forms subject-matter of a substantive charge and a person can be held independently accountable for the same, we think it appropriate to deal with and advert slightly to the evidence touching the complicity of the accused with reference to the aforesaid charge. We straight away point out that the evidence in this behalf is hardly of any materiality since it concerns merely of the endeavour by the accused in pointing out the two dead-bodies and to a spot further from where a piece of white cloth M. O. 2 has been recovered. We may recall at this stage that the bodies had been discovered by the police even before the accused was taken into custody by the police and brought to the spot. Therefore, if the accused after having been brought to the spot had pointed out to the children, there is nothing new about it since the police were already aware of that development. Apropos the recovery of a piece of white cloth m. o. 2 from the gutter in question. It is needless to add that the said circumstance cannot be treated as incriminating. It is however contended that the said piece of cloth M. O. 2 had been used for wrapping up the children. Suffice it to state that that a piece of cloth like m. 0. 2 is in itself not sufficient to sustain even the charge under Section 201 of the Indian Penal Code. Therefore, it is we acquit the accused of the aforesaid charge as well. ( 33 ) IN the result we allow criminal appeal No. 397/1989, set aside the conviction of the accused for the offence of murder punishable under Section 302 of the Indian Penal Code and the sentence of death imposed on him by the learned judge as also the sentence of fine for offence under Section 201 of the Indian Penal Code. We direct the accused who is in detention to be set at liberty forthwith. We direct the accused who is in detention to be set at liberty forthwith. We reject in consequence, criminal reference case No. 5/1989 made by the learned judge for confirmation of the sentence of death referred to (supra ). ( 34 ) BEFORE parting with this case we cannot but notice the flaw in the sentencing pattern adopted by the learned judge in inflicting on the accused the maximum penalty of sentence of death by hanging. It seems to us that even if the prosecution's case was held to be true and granting that the prosecution had proved their case to the hilt, this however was not a fit case in which the learned judge could have chosen to hang the man. Life it must be pointed out is at all times an ephemeral entity which more often than not could come, to an end abruptly and often times without even any reason, a person in the best of health and the pink of bodily condition may find himself at death's door being involved in a road accident for which he was not to be blamed at all. Again a person may die in circumstances which at all times may appear to be extremely strange and that is why we think life in itself by ephemeral but if it is made more so by judicial sentencing that is wholly arbitral in character it may probably lead to frowns and the raising of eye brows at such needless extravagance extending of judicial authority. The Supreme Court in bachan singh and others v The State of Punjab and others, AIR 1980 SC 898 , said that only the rarest of rare case attracting no other alternative the sentence of death should be inflicted. The philosophy behind the behaviour of sentencing (sic) is made evident from following observations made by their lordships: "judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, courts have inflicted the extreme penalty with extreme frequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. Facts and figures, albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, courts have inflicted the extreme penalty with extreme frequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz. , That for persons convicted of murder, life imprisonment is the Rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. ( 35 ) IN ediga anamma v State of andhra pradesh, (1974) is WR 471, the Supreme Court held:"the unmistakable shift in legislative emphasis is that life imprisonment for murder is the Rule and capital sentence the exception to be resorted to for reasons to be stated. In this context it may not be out of place to indicate not that it is conclusive since it is now tentative that under the Indian Penal Code (Amendment) bill, 1972, Section 302 of the penal code has been substituted by a less harsh provision limiting death penalty to a few special cases. The positive indicators against death sentence under Indian law currently may be crystallised thus: where the murderer is too young or too old, the clemency of penal Justice helps him. Where the offender suffers from socio economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into 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". (emphasis supplied) if the dictator of the Supreme Court as aforesaid is borne in mind we are at a loss to appreciate how the accused had deserved the extreme penalty of death for the act of killing his own babies. Other general social pressures, warranting judicial notice with an extenuating impact may, in special cases, induce the lesser penalty". (emphasis supplied) if the dictator of the Supreme Court as aforesaid is borne in mind we are at a loss to appreciate how the accused had deserved the extreme penalty of death for the act of killing his own babies. The learned judge appears to be some what over swayed by his sympathy for the children and the fact that they had been snuf fed-out even before they could bloom. No doubt the story makes very pathetic reading but if we ask correcting the question as to why this man if he had committed the crime, and had he done it at all, the answer is found in the supposed statement of P. W-2 to P. W-6 that the children would be an economic burden and probably felt a lurking few of his inability to provide for them resulting in the more severe and a concomitantly sordid likelihood of those two babies growing up and turning victims of social evils to which poverty very often drives girls in a case where parental support is either not forthcoming or is too inadequate for survival not to mention the limitation of society to provide succour to young girls, for pursuing a gainful living. If haunted by fears of his own children being driven to the streets, he had raised his own hand to strike them down, while there can be no question that what he had done was an unmitigated crime but for that if we were to order his neck to be stretched on the gallows, we would then be hanging people day in and day out even when they are driven to commit crimes while they are distraught with misery, hunger and poverty, an event not so rare or uncommon enough in this country, some to sit "up and feel startled and therefore not within the clutch of cases which belonged to the rarest of the rare category of that alone merits according to the dicta in bachan singh's case, the extreme penalty of death. It thus requires little to see that this case did not merit the inflicting the penalty of death but then such a prospect does not haunt the accused any more in the light of the order we have just made setting aside the conviction and sentence imposed on him we have only thought it fit to make these observations to make evident our anxiety at the not so uncommon sight of dispensation of Justice being at times to be totally wayward and abnormally disharmonious. We do hope that these observations would not have gone in vain and in future these will emerge a favourance of rationality in matters of sentencing. --- *** --- .