P. K. SHYAMSUNDAR, J. ( 1 ) THE Appellant herein is one H. Umesh Umakanthrao a youngman 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 gal-lows. 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 out-come 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 Sivithri Bai whom the appellant accused had married a decade before the incident in this case which takes us to the year 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 S uddaguntapalya in Bangalore City (locality of the crime) from Dasarahalli 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 e 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. We need mention here that P. W. 2 Savithri hailed from nearby Anekal Town within the rural District of Bangalore and after her e 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. ( 3 ) BUT then it has to be pointed out that whereas it may be possible to censure these witnesses for deliberately thwarting the result of this 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 many 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- 2-88 in her house at Suddaguntepalya 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 (Le. , by about 8 a. m.) of their missing. 3) That the accused on seeing his said twin daughters in his in-laws 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 Bommanahallim (in Bangalore), he maintained his sound marital relations with his wife P. W. 2 Savithri and was frequently visiting her at Suddaguntepalya, 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 Suddagunatepalya and slept their during that night, which stay of his necessitated his sister-in-law P. W. 12 Saraswathi to go to the neighbour P. W. 6 Muniswamys 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 Suddagunatepalya and slept their during that night, which stay of his necessitated his sister-in-law P. W. 12 Saraswathi to go to the neighbour P. W. 6 Muniswamys house and pass her night there. 6) That on the night of incident both babies were made to sleep on MO 1 Lungi by their mother (PW 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 house 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 P. S. by about 6. 10 a. m. complaining against accused before the SHO (P. W. 17 ). 11) That from Madivala P. S. P. W. 2 (with P. W. 12) was sent to the jurisdictional MICO Layout P. S. 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 (PSO), P. W. 2 gave her oral complaint against accused per Ex. 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 (PSO), P. W. 2 gave her oral complaint against accused per Ex. P. 3 before P. W. 16, on the basis of which regular Criminal Case in Cr. No. 40/88 was registered against accused and formal investigation of the case of 10 under of his said two female babies was taken up by the Police. ( 4 ) IT seems to us that a mere perusal of the points aluminates 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. ( 5 ) 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 replied 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. ( 6 ) 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 assassin who was none other than the accused. There is absolutely no evidence to make out that the two children were trampled to death by anyone and much less by the accused inside the house of P. W. 2. This occurrence said to be based on. In 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 anyone and much less by the accused inside the house of P. W. 2. This occurrence said to be based on. In the opinion of Doctor Patil P. W. 9 who conducted autopsy. The doctor in the cross examination mentioned that and we have already excerpted the doctors 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 mete 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 not suicide. While we could certainly rule out the possibility of suicide in this case, the victims being 3 month 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 of 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/ 2t, regard being had to the fact that part of it was kitchen and part of it was bed room with good lot of space being taken away by the over-hanging cradles, the small residual area had to be shared by the accused, his wife to 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 should 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 had withdrawn her support to the prosecution by turning hostile. ( 7 ) LIKEWISE, 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 Savitri's house on that night. While she did state so much before the Police during the course on her statement recorded by the Investigating Officer she later went back on her statement a different version in explaining the cause of her over-night stay in the house of Muniswamappa. She said she had gone over spent the night in Muniswamppas house because the latters 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 house. 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. 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 Sarawswathi had moved over to his house on that night and had sought leave to spend night in his house because die accused had been visiting his wife that night But Muniswamappa could not otherwise speak to the presence of the accused in the P. W. 2s house on that night because he had never seen him on that night and his information about the visit of the accused to the 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 not 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 infront of P. W. 2t 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 then 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 has seen the accused peeping into P. W. 2s house while standing outside. 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 has seen the accused peeping into P. W. 2s 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 contradictory. 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 occurred in the evidence of this witness touching the presence of the accused inside the house of P. W. 2 on that night; then who 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. ( 8 ) 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. ( 9 ) BE that as it may from the fact that this witness had told the Police something different from what he had been telling the Court making him out to be a person who could trim his sails according to the wind. ( 9 ) BE that as it may from the fact that this witness had told the Police something different from what he 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 say, 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 him seen the accused on that night and his evidence is of little use if after the accused went away, 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 had seen the accused standing outside the house of P. W. 2 darting a careful glance inside that house but he asserted before Court that he had seen the accused coming 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 infront of the house of P. W. 2 and. it being nobodys case that was any commotion in the house of P. W. 2 and the pretext put forward 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 witness 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 unnatural cannot be availed of and we think the learned Judge erred in relying on this witness. ( 10 ) 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 reselling of support by P. W. 2 to the prosecutions 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 Bannargatta 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 framed 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), (t), (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 profit by the truncated version of what now remains of the complaint at Ext P. 3. All said and done Ext. P. 3 statement can be only used to contradictor to corroborate the maker and beyond there it is of little use. Ext. But what we really fail to see as to how the prosecution can claim to profit by the truncated version of what now remains of the complaint at Ext P. 3. All said and done Ext. P. 3 statement can be only used to contradictor to corroborate the maker and beyond there it is of little use. Ext. P. 3 being the first information report in the case and as enjoined by Section 154 of the Cr. P. C. it can only be used to corroborate of 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 Aghnoo she Nagesia v. State of Bihar,1 and Nisar Ali v. State Bu of Uttar Pradesh2. In A. Nagesias case it is held the as follows: - The first information report recorded under Section 154, Criminal P. C. as the such is not substantive evidence, but no may be used to corroborate the informant under Section 157 of the Evidence cu Act or to contradict him under Section ha 145 of the Act, if the informant is called or as a witness. Where the accused himself he 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 it accused to a Police Officer cannot be used against him in view of Section 25 of the Evidence Act. ( 11 ) BUT then the question having arisen to what use such a report could be put to use the Supreme Court in Nisar Alis 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. 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 sustained in conjunction 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? 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 reverted 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. P3 after its retraction cannot now be used to gun down the accused on the charge of having murdered his children. But then it is urged that the circumstance of P. W. 2 (Savitri) 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 Pradesh3. That was a case in which the first information Report omitted to mention the injuries alleged 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 eye-witness 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 prosecutions case who 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 state 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. ( 12 ) 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 an any positive reference to the accused in the First Information Report at Ext. P. 3. The complainant having later retracted the statement she had been cross-examined with reference to those statements apropos Ext. P. 3 when 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 per juror, that does not improve matters for the prosecution who and 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 probabilities true and 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 claiming was to treated it 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. We are afraid there is little merit in this argument. For the reasons mentioned above, we are constrained to discard the same. ( 13 ) WE now advert to a further sequence in the prosecution case viz. , the alleged motive that had propelled the accused into committing the crime. Their case is the accused had never lied the twin babies because it had added to his burden of having to support their 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 be was in this case by an additional establishment of the other women with whom he was living at Bommanahalli from where he was taken by the Police, he could ill-afford the now born babies and that is why it is said he had suggested to P. W. 2 Savithri while she was still in her mothers 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 afore said has been denied by the wife but some credibility to the statement of the accused is sought to be bestowed by the testimony of P. W. 6muniswamappa 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 house. They were shown to me by P. W. 2 Savithri Bai herself. On seeing those babies I said that the babies were fair looking, and asked P. 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 had been made to him that he had not gone to Anekal and visited the house of P. W. 2s 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 had been made to him that he had not gone to Anekal and visited the house of P. W. 2s 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 prosecutions 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 is Clearly hit by the Rules of hear-say. The learned Sessions Judge bas however relied on the evidence of P. W. 6 to hold that the accused had the necessary animus to do away with the children and that circumstance favoured a finding of guilt. ( 14 ) RULE against receiving of hear-say evidence a is very salutary rule designed to save people from in directed indictment on the basis of testimonial assertion which is per se 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 ). 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 could 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. ( 15 ) PHIPSON on evidence, 13th Edition, Chapter 16 page 329 explains the rule in English law against reception of hear-say 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 Chaps. 19-22 ). The rule at common law appeal is 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 non the less exists a superstitious awe. . . about having any truck with evidence which involves As telling the Court what B said. ( 16 ) THE learned Author at page 330 refers to the following statement by stephen and Cross regarding hear-sayt 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. A statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated. ( 17 ) HE then adverts to the 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 life sometimes added (4) the tendency of such evidence to protract legal inquiries, and (5) to encourage the substitution of weaker for stronger proofs. ( 18 ) WE do not think the Indian law of evidence is any way different from what obtains as aforesaid in England. ( 18 ) 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 hear-say 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 Hear-sayt 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 hear-say is secondary evidence of any oral statement given orally. xxx xxx ( 19 ) THE Privy Council in Subramaniam v. Public Prosecutor4, explained the ambit of the rule of hear-say as follows: In rulling 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 mayor may not be hear-say: It is hear-say and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hear-say 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) ( 20 ) 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. (Emphasis supplied) ( 20 ) 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 other person (Emphasis supplied) ( 21 ) THE learned Counsel for the Appellant cited a decision of the Supreme Court in Bhugdomal Gangaram and Others etc. v. The State of Gujarat,5. Wherein their Lordships while adverting to 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 TTp being Manager of truck involved in a crime, by specified person - Latter not examined - Testimony of witness is not admissible. ( 22 ) BUT then the learned Public Prosecutor submits that in this case the informant Muniswamappa P. W. 6 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,6. longer be impeached as hearsay. He replied on the decision of the Supreme Court in Ramratan and Others v. The State of Rajasthan,6. 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 could be established only on the evidence of the wife who now denies having made such a statement to P. W. 6 - Muniswamappa, his case of having heard him to 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 hear-say 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 accused 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 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 nugatory 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. ( 23 ) IN State (Delhi Administration) v. Gulzarilal Tandon7, Their Lordships have pointed out the requirement of establishing a motive for the commission of a crime where the case of the prosecution rests purely on circumstantial evidence. ( 23 ) IN State (Delhi Administration) v. Gulzarilal Tandon7, Their Lordships have pointed out 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 an 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 circumstantional evidence only if the circumstances are wholly inconsistent with the innocence of the accused. The following dicta at Head Note CT 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) ( 24 ) THE resulting position therefore is the motive angle very necessary to be established against the accused has remained un-established. Judge 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 had 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. ( 25 ) THESE features in the prosecutions case makes her almost an accomplice and therefore whatever she has stated to the Police from which she had now backed out completely, cannot be accepted as gospel truth. ( 25 ) THESE features in the prosecutions case makes her almost an accomplice and therefore whatever she has stated to the Police from which she had now backed out completely, cannot be accepted as gospel truth. It must also be remembered and we are referring to the fact that P. W. 2 had an undisputable grievance against the appellant because he had taken aconcubineresulting in P. W. 2 being forced to share not merely the appellant with the order 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 assiduous effort by her to involve the accused and later realising the serious consequences that may stretch as far as the husband being either jailed for life even being hanged the serious consequences stretching as far as the husband being either jailed for life or being hanged which is presently the situation in which the husband is placed, the woman had possibly volte face 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 their 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 prosecutions case as having been so fully and completely established justifying, the conviction of the accused for the offence of murder are also the sentence imposed on him. ( 26 ) 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. ( 27 ) THERE is however a further charge against the accused of having 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 the principal charge of murder, the lesser charge of the offence under Section 201 of the Indian Penal Code, which is an auxiliary to 5. 302 I. P. C. should fall to the ground. It is needless to add now that the accused has been acquitted the principal charge of murder, the lesser charge of the offence under Section 201 of the Indian Penal Code, which is an auxiliary to 5. 302 I. P. C. should fall to the ground. But, then, since the offence under s. 201 IPC form subject matter of a substantive charge and a person can held independently accountable for the same, we think it appropriate to deal with an 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 a piece of cloth like M. O. 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. ( 28 ) IN the result we allow Criminal Appeal No. 397/89, 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. ( 29 ) 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 gruesome 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 come to an end abruptly and often times without even any reason is a person in the best of health and the pink of bodily condition may find himself at deaths 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 ephemeral but if it is made more so by judicial Sentencing that is wholly arbitrate in character it may probably lead to frowns and the raising of eye brows at such needlessly extravagant depending on judicial authority. The Supreme Court in Bachan Singh and Others v. The State of Punjab and Others,8 said that only in the rarest of rare case attracting no other alternative the sentence of death should be inflicted. The philosophy behind the is made evident from following observations made by their Lordships: Judges should never be blood thirsty. Hanging of murderers had 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 highroa4 of legislative policy outlined in S. 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 laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed". ( 30 ) IN Ediga Anamma v. State of Andhra Pradesh, (1974) I. S. C. W. R. 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, S, 302 of the Penal Code had 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 crystallized 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. If the dictum 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. If the dictum 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 snuffed-out even before they could bloom. No doubt the story makes very pathetic reading but if we ask ourselves 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 fear 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 the 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, so as to sit up and feel startled and therefore not that 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. 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 though 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 pavorama of rationality in matters of sentencing.