J. Sangma, J. — By judgment dated 14.9.92 passed in Sessions Case No. IS of 1991, the learned Sessions Judge, Silchar (Shri SN Bezbaruah) convicted Bhuban Tanti under section 302 IPC for murder and sentenced him to death, He convicted him also under section 448 IPC and sentenced to RI for six months and fine of Rs.500/- in default, to RI for two months. The learned Sessions Judge made reference to this Court under section 374 CrPC for confirmation of the sentence of death. The convict Bhuban Tanti prefened Criminal Appeal No. 118 (J) of 1992 from that judgment. 2. After hearing Mr. BP Bora, learned PP for the State of Assam and Mr. AK. Goswami, the learned Amicus Curiae for the convict, we now dispose of the reference and the appeal by this common judgment. 3. In brief, the facts are as follows : The convict was a tea labourer who resided with his wife Uma Tanti at Chanduwa Tea Estate. Rajkumar Tanti, who was Uma's related uncle, was also a tea labourer and he resided with his wife Arati and son Biswajit, at Chotto Jalenga Tea Estate. As there was quarrel Uma temporarily left husband's house and had been taking shelter in the house of her uncle Rajkumar Tanti at Chotto Jalenga for one month. At 7 PM of 17.7.89 while Rajkumar was away iu market, convict (Bhuban Tanti) came to Chotto Jalenga with dagger in hand, entered the house of Rajkumar and stabbed Uma on the chest. As Rajkumar's wife Arati tried to save Uma, the convict stabbed her also on the abdomen. Uma died on the spot. PW 13 (Biswajit Tanti), a minor son of Rajkumar and Arati, was present in the house and saw both the occurrence. When PW 5 (Braja Tanti), PW 7 (Smti Sabitri Tanti) and PW 12 (Rajkumar Tanti) and other neighbours came Arati told them that the appellant stabbed Uma with a dagger and then stabbed her with the same Dagger. PW 13 (Biswajit Tanti) who saw both the occurrence also told the same thing to them. After a while Rajkumar Tanti produced his injured wife Arati before the Police Investigation Centre, Duarbond at 10.30 PM, i.e. just after three and half hour of the occurrence and orally reported the incident. The oral report of Rajkumar Tanti was recorded in GD as Entry No. 298 (Ext.4). After a while Rajkumar Tanti produced his injured wife Arati before the Police Investigation Centre, Duarbond at 10.30 PM, i.e. just after three and half hour of the occurrence and orally reported the incident. The oral report of Rajkumar Tanti was recorded in GD as Entry No. 298 (Ext.4). In short the Entry was this : "Now Rajkumar Tanti of Jalenga Tea Estate appears with his wife Arati and reports that at 7 PM Bhuban Tanti of Chanduwa Tea Estate entered his house in his absence and stabbed his own wife Uma with dagger on the belly in the house. As his wife Arati intervened, Bhuban stabbed her also with dagger. Uma died on the spot and Arati is now in critical condition." 4. On 18.7.89 Uma's father, Gopesh Tanti (PW 1) gave a written FIR at this Investigation Centre and the Investigation Centre forwarded the FIR to Silchar PS. Thus Silchar PS registered a case on 18.7.89 against the convict under section 448/302 IPC for criminal trespass and murder of Uma; and under section 326 IPC for causing grievous injury to Arati. On -that day Arati was admitted later in Silchar Medical Hospital, but she died there on 2.8.89. The doctor held post mortem examination of both the dead bodies. After investigation the IO submitted charge sheet under section 448/302 IPC against the convict for murder of Uma and Arati to a Magistrate of Silchar who committed the case (GR No. 13-0/89) to Sessions Court, Silchar for trial. 5. On 13th August, 1991, the learned Sessions Judge, Silchar framed charge under section 448/302 IPC, but the convict pleaded not guilty to it. The prosecution then examined 10 PWs. These PWs include 'the informant (PW 1), Dr. KK Chakravarty (PW 6) who did post mortem on the dead body of Uma on 18.7.89, Dr. H.Sarma (PW 17) who did post mortem on the dead body of Arati on 2.8.89, Arati's son Biswajit Tanti (PW 13), who saw the occurrence, PW 12 (Rajkumar Tanti) and others of the village who came soon after the occurrence. At the close of prosecution, the trial Court recorded the defence statement under section 313 CrPC which was only a simple denial. The convict did not examine witness for defence. 6. At the close of prosecution, the trial Court recorded the defence statement under section 313 CrPC which was only a simple denial. The convict did not examine witness for defence. 6. The learned Sessions Judge elaborately discussed the evidence and found that while Rajkumar Tanti (PW 12) was away from home the convict trespassed to his house and stabbed Uma and Arati with dagger on 17.7.89 in the house. He found that Uma died of stab injury at the spot on 17.7.89 and Arati also afterwards died of stab injury in Silchar Medical College Hospital on 2.8.89. So he held that the convict was guilty under section 448 for trespass and under section 302 IPC for double murder. He found no extenuating circumstances and awarded sentence of death to him. Hence the reference and the appeal. 7. Mr. BP Bora, the learned PP took us through the evidence particu­larly of PWs 5, 6, 9, 12, 13, 17 and 19. While performing post mortem PW 6 Dr. KK Chakravarty found penetrating wound on the chest of Uma and told that her death was due to shock and hemorrhage from injury to the heart which was ante mortem and caused by sharp weapon. PW 17 (Dr. H. Sarmah) performed post mortem on Arati's dead body on 2.8.89. He found 2 CM oval shaped wound on left side of abdomen and told that her death was due to exhaustion from emphysema thoracic associated with septic peritonitis. PW 13 (Biswajit Tanti) is the son of Arati. He was present in the house and saw both the occurrence. He told that when on Bhuban's asking, he opened the door, Bbuban came inside and stabbed Uma with Chaku and that as his mother held Bhuban, he stabbed her also with the same Chaku on the abdomen. In cross examination defence could not break this evidence. PW 12 (Raj Kumar Tanti) is the husband of Arati and father of PW 13. Uma was his related niece. He told that on getting information of the occurrence he rushed home from market and saw Uma and his wife Arati with injuries and that Biswajit and Arati told him that Bhuban had assaulted them. He immediately took Arati to Duarbond Outpost from where police sent her to Medical Hospital. In cross examination he told that when he arrived home the people of the village also came. He immediately took Arati to Duarbond Outpost from where police sent her to Medical Hospital. In cross examination he told that when he arrived home the people of the village also came. He also stated that after admission to Hospital Arati could not speak properly. PW 16 (MR Laskar) is the Officer-in-charge of Duarbond Investigation Centre. He told that at 10.30 PM of 17.7.89 Rajkumar Tanti appeared with his injured wife Arati and orally reported at 7 PM Bhuban assaulted Uma and Arati with dagger and Uma had died. He stated that the report was entered in GD as Entry No. 298 and exhibited the entiy as Ext. 4. On that date he prepared inquest on the dead body of Uma. PW 4 (Smti Suparna Tanti) is also a tea labourer at Chotto Jalenga Tea Estate. She told that on hearing hulla she went to the house of Rajkumar and saw Uma in unconscious state and Arati crying in pain. She also told that Biswajit, the son of Rajkumar told that both were stabbed by Bhuban with dagger. In cross examination she denied the suggestion by defence that she never told police that Rajkumar's son Biswajit told her that Bhuban Tanti stabbed Uma and Arati with dagger. PW 5(Braja Tanti) is a tea labourer of the same place. He heard hue and cry of Arati and her son Biswajit and rushed to that place and saw Arati holding her injured stomach with hand-This witness said that on his asking, Arati told that Bhuban assaulted her and Uma with dagger while Rajkumar was away in the market. He then went to market and sear­ched Rajkumar; but people in the market told that Rajkumar had already left for home. In cross examination he also denied the defence suggestion that he did not tell the police about his going to market in search of Raj Kumar. PW 7 (Smti Sabitri) is also tea labourer of Chotto Jalenga Tea Estate. She said that at 7/7.30 PM she heard hullah from the children of Rajkumar Tanti and on going there, saw Bhuban's wife Uma dead and Arati holding her belly with hand and that Biswajit and Arati told her that Bhuban Tanti stabbed the two. In cross examination she also denied the suggestion that she did not tell police that Biswajit told that Uma and his mother were assaulted by Bbuban with dagger. In cross examination she also denied the suggestion that she did not tell police that Biswajit told that Uma and his mother were assaulted by Bbuban with dagger. PW 9 (Panehanan Tanti) is a tea labourer of Chotto Jalenga Tea Estate. He said that he saw Arati with injury aud bandage on her belly and that Arati told that she and Uma were stabbed by Bhuban. He went with Rajkumar and Arati to Police Investigation Centre where Rajkumar verbally reported the matter. He also went to Silchar Medical College Hospital for admitting Arati. In cross examination he denied that he never said that such thing to police. 8. So from the evidence of the above named witnesses, it is clear that the convict Bhuban stabbed Uma and Arati at 7 PM on 17.7.89 in the house of Arati at Chotto Jalenga Tea Estate and that both the victims died due to injuries sustained. 9. Mr. AK Goswami, learned Amicus Curiae for the convict argued that PW 13 being a child of 9/10 years and in view of the fact that there were discrepancies in his evidence the conviction is unsustainable. But we find that those discrepancies are minor and do not impair the substance of his evidence. It was held in Prakash vs. State of UP, AIR 1993 SC 65 that in murder case the evidence of victim's younger brother aged 14 years who gave proper account of the incident witnessed by him could not be discarded. We find that PW 13 not only gave proper account of the incident which he saw but his evidence has been amply substantiated by the evidence of PW 4, 5, 1, 9 and 12 who came to that house immediately after the occurrence. We, therefore agree with the finding recorded by the learned Sessions Judge and hold that the convict Bhuban had committed murder of Uma and Arati on 17.7.89 in the house of PW 12 at Chotto Jalenga. 10. Mr. Goswami then advanced alternative argument. He submitted that as his wife Uma left him and took shelter in another man's house the convict might have doubted her chastity and stabbed her. 10. Mr. Goswami then advanced alternative argument. He submitted that as his wife Uma left him and took shelter in another man's house the convict might have doubted her chastity and stabbed her. He, therefore, sub­mitted that the conviction could not be held under section 302, IPC We can not accept this submission also because there is no denial by the defence that only because of quenelle Uma left him and temporarily came to PW 12 who was her related maternal uncle and bad his wife and children. Not only that but the convict had also stabbed Arati with whom he could not find fault. Therefore we do not see any ground to hold that there was some element of provocation. We, therefore, maintain the conviction under section 302 IPC. 11. As regards the sentence the learned PP stated that be would leave the question to us for determination. The learned Amicus Curiae said that the convict is aged only 25 years and had languished in condemned cell for more than two years. He submitted that this is a fit case for commuting the sentence. 12. Article 21 of the Constitution provides thus : "21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law." 13. In Edigh Anamma, (1974) 3 SCR 329 : AIR 1974 SC 799 , Krishna Iyer and Sarkaria, JJ. observed that : "that the 'brooding horror of hanging, the prisoner in her condemned cell for over 2 years had an "ameliorative impact" and was "a factor of human significance in the sentencing context." 14. In Furman vs. State of Georgia (1972) 408 US 238 Justice Brennan observed : "The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death." 15. In Furman vs. State of Georgia (1972) 408 US 238 Justice Brennan observed : "The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death." 15. In TV Vatheeswaran vs. State of Tamil Nadu, AIR 1983 SC 361 (2) the Court observed the following : "It seems to us but a short step, but a step in the right direction to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death." It was then held that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death; and that the cause of delay was immaterial when the sentence is death. But this was subsequently overruled in Sher Singh vs. State of Punjab, AIR 1983 SC 465 wherein the Court held that no hard and fast rule can be laid down to the period and, therefore, the Court must find out why delay was caused and who was responsible for it; and said that if after the sentence of death was passed, the convict, by taking resort to frivolous proceedings, was alone responsible for the delay the rule of 2 years would not apply. In view of the above decisions we now hold that the High Court must decide the question of confirmation and the appeal without undue delay and that if for no fault of the convict, delay took place for 2 years or more after the passing of sentence of death by Sessions Judge its confirmation would be violative of Article 21 of the Constitution and the convict would be entitled to get commutation of the sentence of death. 16. In the present case the learned Sessions Judge passed the sentence of death on 14.9.92. The jail appeal of the convict was received by this Court on 18.9.92 and the reference was also received along with case records from the Sessions Judge by Special Messenger on 18.9.92. 16. In the present case the learned Sessions Judge passed the sentence of death on 14.9.92. The jail appeal of the convict was received by this Court on 18.9.92 and the reference was also received along with case records from the Sessions Judge by Special Messenger on 18.9.92. Thereafter this Court ordered on 23.9.92 that the appeal and the reference should be posted for order on 2.11.92; but the office did not post the case till 15.9.94. So the delay of more than 2 years took place in the office of this Court. No part of this delay could be ascribed to the convict. We, therefore think that it would be improper and unjust to accept the reference. Accordingly we decline to accept the reference and commute the sentence to imprisonment for life with fine of Rs. l.OOO/- in deault RI for further period of one month, 17. Before parting with the case we take note of section 302 IPC which says : "302. Punishment for murder-Whoever commits murder shall be puni­shed with death or imprisonment for life, and shall also be liable to fine." In our opinion where a sentence of death is passed the sentence of fine, is inappropriate. In Guruswamy vs. State of Tamil Nadu, 1979 SCC(Crl)879 the sentence of death which was passed without fine was commuted by the Suprem Court to a sentence of imprisonment for life with fine of Rs.10,000/- .La Sher Singh vs. State of Punjab, AIR 1983 SC 465 also the accused Sher Singh and two others were convicted under section 302/34 IPC and sentenced to death without fine by the learned Sessions Judge, Sangrur; but the High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment and imposed fine of Rs.5,000/-. In fact we so far have not com* across with imposing of a fine to a convict who has been sentenced to death. 18. We are therefore clearly of the view that where a sentence of death is passed against accused a sentence of fine in addition to it is wholly inappro­priate. In the context we express our view that there was slight mistake in the drafting of section 302 and say that what the section intended was : "302. 18. We are therefore clearly of the view that where a sentence of death is passed against accused a sentence of fine in addition to it is wholly inappro­priate. In the context we express our view that there was slight mistake in the drafting of section 302 and say that what the section intended was : "302. Punishment for murder.- Whoever commits murder shall be punished with death; or imprisonment for life in which case he shall also be liable to fine."