State v. Sunder Lal Pasia — 1995 DIGILAW 609 (ALL)

JUDGMENT I. S. Mathur, J. (1.) THIS Capital Sentence Reference No. 1 of 1994 and Criminal Appeal No. 573 of 1994 arise from the judgment and order dated 17.12.1994, passed in Sessions Trial No. 191/90 whereby the appellant, Sunder Lal Pasi has been convicted for offence under Section 302, I.P.C. and Section 201, I.P.C. and sentenced to death on the first count and to five years rigorous imprisonment on the second count. (2.) THE reference has been made by the learned Additional Sessions Judge for confirmation of death sentence as required by Section 366, Cr. P.C. THE appellant Sunder Lal has filed the aforesaid appeal praying for setting aside the judgment and order. The deceased Phoolmati was the wife of the accused. Sunder Lal and deceased Manju, aged six months, was their daughter. The complainant, Chandrapal, is the real brother-in-law of the accused. According to the prosecution, the appellant is a man of bad character and because of this reason, he left his village Baunamau, police station Makhi, District Unnao and came to live in the house of the complainant in village Singrausl. He was habituated to drinking and, quite often, he used to assault the deceased Phoolmati after drinking in the evening. On 4.11.1989 at 8 p.m., he came drunk and started assaulting the deceased. He also abused her and said that he is fed up with her and that he will kill her. The complainant and others of the family made peace between them and thereafter, the complainant and others went to sleep. At about 12.00 in the night, the complainant heard the shout of his sister that she was being killed. The complainant and his wife rushed to the room of the appellant and found him sitting on Phoolmati and pressing her neck. The complainant and his wife forcibly removed the accused and he started to quarrel with them. He turned out the complainant from the room. At about 2.00 p.m., Abdul Hassan and Ratan Lal of the village were coming back from their fields when they saw the accused with a dead-body on his shoulder. These witnesses flashed their torch light after which the appellant threw the dead-body and ran away. On hearing the shout, the complainant and his wife came out and they also saw the appellant running away. These witnesses flashed their torch light after which the appellant threw the dead-body and ran away. On hearing the shout, the complainant and his wife came out and they also saw the appellant running away. They tried to catch-hold of the appellant but he threatened that he will kill them and because of this fear, they could not apprehend him. A First Information Report was lodged by the complainant at police station Singrausi at 4.30 a.m. on 5.11.1989 in respect of the murder of Phoolmati and a case under Section 302, I.P.C. was registered. The dead body of Manju was recovered later and information thereto was also given by the complainant. After conducting inquest, the dead bodies were sent for post-mortem examination. On postmortem examination on the dead-body of Phoolmati, Dr. L. D. Shukla (P.W. 5) found the following anti -mortem injuries :- "Contusion with multiple abrasion in area of 14 cm x 9 cm. on front of neck at region of Thyroid cartilage. Few abrasions are semilinear in shape on cutting sub-cutaneous tissue is haemorrhagic." The Doctor has found the membranes and brain congested. He also found pleura, larynx and trachea congested. Semi-digested food and gases were found to be present in small intestine and faecal matter and gases were in large intestine. According to the Doctor, the cause of death was asphyxia as a result of strangulation. (3.) ON post-mortem examination of Manju conducted on 7.11.1989 at 3.15 p.m., Dr. S. M. Krishna (P.W. 3) found the following anti mortem injuries : 1. Contusion on right side of lower chest 6 cm. x 2 cm. 2 Contusion on left side of chest in lower part 4 cm. x 3 cm. The body was in a decomposed state. Both eyes were absent and only ears were present. Brain was absent. Frontal bone and face bones including mandible were found to be absent. He also found 7th, 8th and 9th rib fractured on right side. 7th and 8th ribs on the left side was also found to be fractured. According to the Doctor, the cause of death was shock and haemorrhage as a result of anti- mortem injuries and time since death was two-and-a-half days. (4.) AFTER completing investigation, a charge-sheet was submitted against the appellant for offences under Section 302, I.P.C. in respect of Phoolmati and Manju and also for offence under Section 201, I.P.C. in respect of Manju. (4.) AFTER completing investigation, a charge-sheet was submitted against the appellant for offences under Section 302, I.P.C. in respect of Phoolmati and Manju and also for offence under Section 201, I.P.C. in respect of Manju. The learned Sessions Judge framed one composite charge under Section 302, I.P.C. and another charge under Section 201, I.P.C. We have heard learned counsel for the appellant and the learned State Counsel. The factum and the time of death are not disputed and are clearly established from the evidence on record. The statements of the witnesses, P.W. 1 Chandra Pal and P.W. 3 Ratanlal as also the post-mortem reports clearly establish that the deceased Phoolmati and Manju were killed on the night of 4/5.11.1989 at about 2.00 p.m. (5.) THE question, however, is as to whether these murders were committed by the appellant. There is no direct evidence in regard to the commission of these murders and the case entirely rests on circumstantial evidence. Before we discuss the facts and circumstances, we may notice the well established legal propositions, laid down by Hon'ble Supreme Court in regard to the circumstantial evidence. In G. V. Raju v. State of A. P., 1994 SCC (Cri) 376, Hon'ble Supreme Court referred to the earlier decisions in Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 (equal to AIR 1955 SC 801 ), Vidya Sagar v. State of U. P., (1977) 4 SCC 597 and Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 and reiterated the following principles :- 'THE principles for convicting a person on circumstantial evidence have been indicated in a number of decisions of this Court. In Deonandan Mishra v. State of Bihar this Court has indicated that in order to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It has been further held that in such cases, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. It has been further held that in such cases, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated by this court in Vidya Sagar v. State of U. P. that where the evidence against the accused is circumstantial, in order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In various decisions, this Court has put a note of caution that the circumstances should be of conclusive nature and must not remain in the realm of suspicion, however grave it may be. THE charge of murder like any other charge of an offence, can be established by inferences but when there is extremely little by way of direct evidence, it is due to the accused that there should be no exaggeration of minor incidents in the case and that each inference should be verified with scrupulous accuracy. It should be remembered that circumstantial evidence in order to furnish a basis for conviction requires a very high degree of probability, that is, so sufficiently high that a prudent man considering all the facts and realising that the life or liberty of the accused depends upon the decision, feels justified in holding that the accused has committed the crime. In a very recent judgment, in Jaharlal Das v. State of Orissa this court has very succinctly summarised the principles governing the conviction on circumstantial evidence. In a very recent judgment, in Jaharlal Das v. State of Orissa this court has very succinctly summarised the principles governing the conviction on circumstantial evidence. It has been indicated in the said decision that (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused ; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused." (6.) IN Dhananjoy Chatterjee alias Dhana v. State of W. B., 1994 SCC (Cri) 358, Hon'ble Supreme Court has observed : "It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof. Since the instant case is based on circumstantial evidence and the sentence awarded by the trial court and confirmed by the High Court is that of death, we have to consider the circumstances carefully bearing the principles noticed above in mind." In Laxman Naik v. State of Orissa, 1994 SCC (Cri) 656, Hon'ble Supreme Court referred to its earlier decision in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487 and Dhananjoy Chatterjee v. State of W. B. (supra) and observed : "The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of this Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistable conclusion that the accused alone is the perpetrator of the crime. To quote a few decisions of this court in this regard a reference may be readily made to the cases of Sharad Birdhichand Sarda v. State of Maharashtra and Dhananjoy Chatterjee v. State of W. B." (7.) IT will appear from the decisions, in the aforesaid cases, that in order to find the accused guilty on the basis of circumstantial evidence : (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ; (ii) these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused ; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. (8.) IT follows that if circumstances from which an inference of guilt is sought to be drawn have been cogently and clinchingly established, they unerringly point towards the guilt of the accused and the chain of circumstances is so complete that it is incapable of explanation on any hypothesis except that the guilt of the accused, conviction of the accused will be fully warranted. We may now proceed to consider the various circumstances and determine whether the case against the appellant for alleged murder of Phoolmati is established on the touch-stone of the principles, laid down by Hon'ble Supreme Court, as indicated above. We may now proceed to consider the various circumstances and determine whether the case against the appellant for alleged murder of Phoolmati is established on the touch-stone of the principles, laid down by Hon'ble Supreme Court, as indicated above. The circumstances relied upon by the prosecution are : (i) The accused was habituated to drinking and he used to beat his wife, Phoolmati, deceased off and on ; (ii) The appellant had to leave his village Baunamau due to his infurious activities and had come to live in the room of the house of the complainant in village Singrausi ; (iii) The accused used to indulge in drinking in his room in the house of the complainant in Singrausi and beat his wife Phoolmati; (iv) On the date of the incident, the accused beat the deceased Phoolmati at about 8 p.m. and also threatened that he will kill her ; (v) Again at about 12.00 in the night on the same day, shouts were heard from the room in which the complainant and the deceased were living and he was found sitting on the chest of Phoolmati and trying to strangulate her; (vi) At about 2 in the night, the appellant was seen by witnesses Abdul Hassan and Ratan Lal with a dead body on his shoulders ; (vii) The appellant threw the dead body in front of the house of Abdul Hassan and the dead body was recognised by the complainant and others to be that of Phoolmati ; (viii) Phoolmati and Manju were present in the room of the house of the complainant along with the appellant but they were not there at 2 p.m. when the appellant went to that room on hearing some shouts ; (ix) The appellant was seen running away, at about 2 in the night, by the complainant and others and on being confronted, he threatened the complainant; (x) The post-mortem report indicated that Phoolmati died of his strangulation ; (xi) First Information Report was lodged promptly. (9.) WE agree with the learned Sessions Judge that the prosecution has succeeded in proving all these circumstances beyond reasonable doubt. P.W. 1, Chandra Pal and P.W. 2, Ratan Lal have fully supported the prosecution version. Their statements established that the appellant was living in one of the rooms of the house of the complainant along with his wife, deceased Phoolmati, and three children, Including Manju. P.W. 1, Chandra Pal and P.W. 2, Ratan Lal have fully supported the prosecution version. Their statements established that the appellant was living in one of the rooms of the house of the complainant along with his wife, deceased Phoolmati, and three children, Including Manju. It is also established from the statement of these witnesses that the appellant was habituated to drinking and he used to misbehave with persons of neighbourhood. The statement of P.W. 1, Chandra Pal further shows that the appellant used to beat his wife, Phoolmati off and on and that on the night of 4/5.11.1989, he beat and threatened the appellant that he will kill her. The complainant, P.W. 1 Chandrapal tried to calm him down at that time but again at about 12 p.m., shouts were heard by him from the room of the appellant and the complainant, Chandrapal found that the appellant was sitting on the chest of Phoolmati and was trying to strangulate. He and his wife separated them and, thereafter, they came back to their own room as the appellant asked them to go away. It further clearly appears from the statement of this witness that shouts were again heard at 2 p.m. and when the complainant went to the room occupied by the appellant, he found the appellant, Phoolmati and the child missing from there. The statements of these witnesses further go to show that the appellant was seen going away with a dead body on his shoulders and on being challenged, he threw the dead body at the door of Abdul Hassan. The dead body was found to be that of Phoolmati. These witnesses have also stated that the appellant threatened them and for this reason, he could not be apprehended. (10.) LEARNED counsel for the appellant challenged the statement of these witnesses and prosecution version on a number of grounds. It was contended by him that P.W. 1, Chandrapal was related to the deceased and P.W. 2. Ratanlal was just a chance witness. No doubt, P.W. 1, Chandrapal, is the real brother of the deceased. However, his testimony cannot be discarded merely on that ground. It is settled law that the testimony of a related witness cannot be equated with that of a tainted witness. Ratanlal was just a chance witness. No doubt, P.W. 1, Chandrapal, is the real brother of the deceased. However, his testimony cannot be discarded merely on that ground. It is settled law that the testimony of a related witness cannot be equated with that of a tainted witness. It does not suffer from any infirmity, as such, but the courts require as a rule of prudence, not as a rule of law, that evidence of such witnesses should be scrutinised with a little care. In Sworn Singh and others v. State of Punjab. (1976) 4 SCC 369 at page 376. Hon'ble Supreme Court has observed : "Moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested witnesses has a ring of truth, such evidence could be relied upon even without corroboration." In State of Punjab v. Wasan Singh. 1981 Cri LJ 410 also, the Hon'ble Supreme Court has laid down : "It is true that both these witnesses are related to the deceased and, as such, are interested witnesses, but their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witnesses. Mere relationship with the deceased was not a good ground for discarding their testimony when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part and role assigned to each of the accused." (11.) IN this connection, it may also be observed that the witnesses whose near relative has been killed would not spare the real assailant and implicate others, such witnesses can be relied upon as more natural witness since he would not spare the real assailant (see Copal Singh v. State of U. P.. 1978 SCC (Cri) 398, Machhi Singh and others v. State of Punjab, 1983 SCC (Cri.) 681. (12.) IN the present case, the appellant himself is the close relative of the complainant, being his real brother-in-law he will not implicate him falsely and burden himself with the care of his three children unless the facts were as stated by him. It is clear from the above decisions that a relative witness is normally a reliable witness and the only requirement as a matter of prudence and not strictly as a proposition of law, is that the statement of such witnesses should be scrutinised with little more care and caution. (13.) WE proceed to do so. As we have noticed above, the statement of P.W. 1, Chandrapal is corroborated by P.W. 2, Ratan Lal in material particulars. His statement is further corroborated by the post-mortem report (Ex. ka 7). As we have noticed above, the Doctor found contusion with multiple abrasion in area of 14 cm x 9 cm. on front of neck at region of Thyroid cartilage. Few semilinear abrasions were also found on cutting sub-cutaneous tissues. According to Doctor L. D. Shukla (P.W. 5), death has been caused due to strangulation and it could have been caused between 12.00 and 2.00 p.m. on the night of 4/5.11.1989. In his cross- examination, Dr.Shukla has denied the suggestion that such injuries could be self Inflicted. (14.) THE fact that the First Information Report in this case was also lodged promptly is another factor which supports prosecution version. THE incident took place at about 2.00 in the night and report has been lodged on 4.30 a.m. on 5.11.1989 at police station which was three miles away. THE First Information Report discloses the broad inspectrum of the incident. The learned counsel for the appellant challenged this First Information Report on the grounds that there was cutting in the time mentioned in the First Information Report, no reference regarding Manju has been made therein and that it was anti-timed. It is not possible to accept any of these suggestions or inference drawn on the facts stated by the learned counsel. It is true that there is cutting in the time mentioned in the First Information Report and by overwriting "2 a.m. on the night" has been mentioned over some writing which is not legible at this time. It is not possible to accept any of these suggestions or inference drawn on the facts stated by the learned counsel. It is true that there is cutting in the time mentioned in the First Information Report and by overwriting "2 a.m. on the night" has been mentioned over some writing which is not legible at this time. However, we agree with the submission of the learned State Counsel that there is nothing mala fide about this overwriting or suspicious about the time mentioned as in the G.D. Report No. 10 at 4.30 a.m. on 5.11.1989 (Ex. ka-5), which was recorded at that very time, time has been mentioned as 2.00 p.m. This submission of the learned counsel must also be rejected on the ground that the witnesses P.W. 1, Chandrapal, scripe or Investigation Officer have not been confronted with this alleged manipulation. It is settled law that no circumstance can be read against the version given by a witness or the prosecution version unless that circumstance is put to the concerned witness and his explanation obtained (see State of U. P. v. Anil Singh, 1988 ACR 621 (SC)). (15.) IT cannot also be accepted that the First Information Report has been anti-timed. The only ground for this submission canvassed by the learned counsel for the appellant was that the crime number has not been mentioned in the inquest reports. When confronted with this question, the Investigating Officer has stated that there is no provision for writing crime number. IT is pointed out by the learned State Counsel that, in the list of papers mentioned in the inquest report, as annexed thereto, the copy of the First Information Report is also mentioned. This could not have been the position if the First Information Report had not come into existence before the inquest report. The special report was sent at 6.30 a.m. and investigation had been started at 5.00 a.m. The body was sent away for post-mortem at 8.30 a.m. Both Dr. Shukla (P.W. 5) and P.W. 6 Suresh Chandra, who had taken the body for post-mortem, have stated that seven papers, which included First Information Report, were taken to the Doctor and received by him. Accordingly, the submission of the learned counsel that the First Information Report has been anti-timed must be rejected and it must be held that the First Information Report was registered very promptly. Accordingly, the submission of the learned counsel that the First Information Report has been anti-timed must be rejected and it must be held that the First Information Report was registered very promptly. (16.) IT is true that nothing has been mentioned regarding murder of Manju in this First Information Report but P.W. 1, Chandrapal has explained that it was not mentioned in this report as he thought that the child may have been taken away by the appellant and it was only later that her dead-body was recovered. This explanation appears to be quite plausible and acceptable. Therefore, no exception could be taken to the truthfulness of the First Information Report on the ground that nothing has been mentioned there in regard to the murder of Manju. The Statement of prosecution witnesses further finds support from the fact that the dead-body of Phoolmati was recovered from the place in front of the house of Abdul Hassan. This fact is established from the statement of P.W. 1, Chandrapal, P.W. 2 Ratanlal and even from the statement of P.W. 7 Abdul Hassan, who has not supported some part of the prosecution version. The fact that the dead body was recovered at that place is also borne out from the statement of the Investigating Officer, P.W. 8 Inspector Mahant Singh. (17.) ACCORDING to the aforesaid three witnesses, namely P.W. 1, Chandrapal, P.W. 2, Ratanlal and P.W. 7 Abdul Hassan, the dead body was thrown there by the appellant and these witnesses tried to apprehend the appellant but could not do so as he threatened them. There is no reason to disbelieve the statement of these witnesses in this regard. We are unable to accept the suggestion of the learned counsel for the appellant that the statement of P.W. 2, Ratanlal should not be believed as, according to him, he was a chance witness. Ratanlal has given a plausible explanation that he had gone to look after his field and was coming from there. Merely because he could not give the number of his field, it could not be inferred that he did not go there. He has explained that he has that field on Batai' only and that being so, it is quite possible that even while he may be working on that field, he may not be knowing its number. Merely because he could not give the number of his field, it could not be inferred that he did not go there. He has explained that he has that field on Batai' only and that being so, it is quite possible that even while he may be working on that field, he may not be knowing its number. In any case, there is no reason why Ratan Lal should be making a statement against the appellant. We see no reason to disbelieve P.W. 2. Ratanlal. (18.) THERE are other circumstances also which go to support prosecution version. According to the statement of prosecution witness P.W. 1, Chandrapal, the accused was in the room of his house at 8.00 p.m. on 4.11.1989 and again at about 12.00 on the night of 4/5.11.1989, but when he went to that room at 2.00 in the night after hearing some shouts, he did not find either the appellant or the deceased and, later on, the dead-body of the deceased was found in front of the house of Abdul Hassan at about 2.00 in the night. In other words, the appellant was with the deceased in his room only a couple of hours before the dead body was found at 2.00 a.m. in front of the house of Abdul Hassan. It has not been suggested that anyone else went to the room which was occupied by the appellant. It was suggested on behalf of the accused that the complainant, P.W. 1 Chandrapal, may have committed this murder to usurp the ornaments of sister. The suggestion would appear to be rather preposterous. Chandrapal is the real brother of the deceased. He is the person who tried to help his sister when she was being harassed by the appellant. In that house, the brothers and parent of Chandrapal and Phoolmati were also residing. As the learned Sessions Judge has noted, the value of those ornaments could not be such as to pursuade anyone to commit this murder. Accordingly, in our opinion, there is absolutely no plausible hypothesis which might connect anyone else with this murder and not the appellant. The facts stated above leave no manner of doubt in our minds that it could have been the appellant and no one else who had the opportunity and motive for committing the murder of Phoolmati. Accordingly, in our opinion, there is absolutely no plausible hypothesis which might connect anyone else with this murder and not the appellant. The facts stated above leave no manner of doubt in our minds that it could have been the appellant and no one else who had the opportunity and motive for committing the murder of Phoolmati. The appellant and Phoolmati were quite obviously having strained relations due to which he used to beat her off and on. According to P.W. 1, Chandrapal he had threatened Phoolmati at about 12.00 in the night that he will kill her. It seems that he did so a little later. (19.) IT is established on the record that soon after this incident, the appellant absconded and proceedings under Sections 82/83, Cr.P.C. had to be undertaken to force his surrender. This again is a circumstance against the accused and in favour of the prosecution version (see Ram Autar and another v. State, 1988 Allahabad Vidhi Nimay 74). (20.) LEARNED counsel for the appellant, however, placed two further circumstances in support of his submission that the appellant did not commit this murder. It was contended by him that the appellant was really not living with the deceased and that the deceased might have committed suicide. The submission regarding suicide is clearly untenable in view of the categorical finding in the post-mortem report. If it were true that she committed suicide, her dead body might have been in the room and not lying at the open place in front of the house of Abdul Hassan. The Doctor has clearly reported it to be a case of strangulation and the data given by Dr. Shukla in the post-mortem report clearly leads to that conclusion. So far as the submission regarding the appellant's not living in this house at the relevant time, much stress was laid by the learned counsel for the appellant on a notice dated 19.9.1989 alleged to have been sent on behal of the appellant. In the first place, this notice has not been formally proved on record in accordance with law. It has been filed along with an affidavit dated 16.1.1991 but even in this affidavit, the notice has not been formally proved. In the first place, this notice has not been formally proved on record in accordance with law. It has been filed along with an affidavit dated 16.1.1991 but even in this affidavit, the notice has not been formally proved. Even if we accept the suggestion of the learned counsel for the appellant that the appellant sent this notice to Phoolmati by registered post, it does not negative the positive statements of the prosecution witnesses that the appellant had started living in the house of the complainant along with the deceased sometime before the incident and was present in that house on the day of the incident. We, therefore, reject the submission of the learned counsel for the appellant based on this alleged notice. (21.) IN our opinion, therefore, all the circumstances referred to above and relied upon by the prosecution have been conclusively established. The circumstances are specific and of a clinching nature and lead to the irresistible conclusion that the appellant alone was guilty of committing the murder of Phoolmati. The circumstances are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. We see no reason to disbelieve the testimony of the prosecution witnesses P.W. 1, Chandrapal and P.W. 2, Ratanlal. The post-mortem report conclusively establishes that Phoolmati was done to death by strangulation. The appellant has been shown to be present in the room along with the deceased a few hours before the dead body was recovered. He was also seen carrying the dead body at about 2.00 in the night. Thus all the circumstances established by the prosecution are conclusive in nature and specific in details. We are, therefore, in complete agreement with the learned Sessions Judge that the prosecution has established the guilt of the appellant beyond reasonable doubt and we therefore, uphold his conviction under Section 302, I.P.C. in respect of the murder of Phoolmati. We also uphold his conviction under Section 201, I.P.C. in respect of Phoolmati. (22.) HOWEVER, we agree with the learned counsel for the appellant that the case against the appellant for murder of Manju cannot be said to be proved beyond reasonable doubt. The only evidence in this regard is that Manju was present in the room and later her dead body was recovered from ghoora'. (22.) HOWEVER, we agree with the learned counsel for the appellant that the case against the appellant for murder of Manju cannot be said to be proved beyond reasonable doubt. The only evidence in this regard is that Manju was present in the room and later her dead body was recovered from ghoora'. Nobody saw the appellant hiding the dead body of Manju there nor any1 witness has stated about the appellant having any ill-will against the child. No reason has been suggested why the appellant would murder this child and spare the other two children. The learned Sessions Judge has failed to give any convincing reason for holding the appellant guilty for murder of Manju. On considering the circumstantial evidence in respect of Manju on the touch-stone of the principles indicated above, we cannot pursuade ourselves to come to a positive finding that it could have been the appellant and none else who could have committed this murder. The evidence in this regard cannot be said to be clinching. We, therefore, feel that In regard to the murder of Manju the appellant is entitled to benefit of doubt. The question remains is as to what punishment has to be awarded to the appellant and whether the death sentence awarded by the learned Sessions Judge can be upheld. We have given our anxious consideration to this aspect of the matter and, in our opinion, the sentence of death awarded by the learned Sessions Judge cannot be upheld or confirmed. The Sessions Judge has not given any reasons for awarding death sentence as is required by Section 354 (3), Cr. P.C. The said sub-section (3) of Section 354, Cr. P.C. reads as follows :- "When conviction is for an offence punishable with death or. in the alternative, with imprisonment for life or imprisonment for a term of years, the Judgment shall state the reason for the sentence awarded and in the case of sentence of death, the special reasons for such sentence." (emphasis supplied). Thus according to this provision, the learned Additional Sessions Judge was required to give special reasons for such sentence. Hon'ble Supreme Court has laid down basic principles for awarding death sentence in Bachan Singh v. State of Punjab, 1980 SCC (Cri) 580 and according to the principles laid down death sentence can be awarded only in 'rarest of rare cases". Thus according to this provision, the learned Additional Sessions Judge was required to give special reasons for such sentence. Hon'ble Supreme Court has laid down basic principles for awarding death sentence in Bachan Singh v. State of Punjab, 1980 SCC (Cri) 580 and according to the principles laid down death sentence can be awarded only in 'rarest of rare cases". In J. B. Gohil and others v. State of Gujarat, 1994 SCC (Cri) 1193 Hon'ble Supreme Court has observed : "There are however certain basic principles which this Court has laid down in Bachan Singh's case for imposition of death sentence in "rarest of rare cases" and we need not repeat these principles. Section 354 (3) of the Code of Criminal Procedure, 1973, as amended, makes it obligatory in cases of conviction for offences punishable with death or with imprisonment for life to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards death penalty, "special reasons" for such sentence shall be stated in the Judgment. Thus, the Judge is under a legal obligation to explain his choice of the sentence. The legislature in its supreme wisdom thought that in some "rare cases" for "special reasons" to be recorded it will be necessary to impose the extreme penalty of death to deter others and to protect the society and in a given case even the sovereignty and security of the State or country. It, however, left the choice of sentence to the judiciary with the rider that the court may impose the extreme punishment of death for "special reasons" The sentencing court has, therefore, to approach the question seriously and make an endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. It is only after giving due weight to the mitigating as well as the aggravating circumstances, that it must be proved to impose the appropriate sentence." (23.) IN the present case, the only reason given by the learned Sessions Judge is that the appellant has committed two murders and he must, therefore, be sentenced to death. IN our opinion, there were not sufficient reasons for awarding death sentence and, on the principles laid down in Bachan Singh's case, this cannot be said to be a case for awarding such sentence. IN our opinion, there were not sufficient reasons for awarding death sentence and, on the principles laid down in Bachan Singh's case, this cannot be said to be a case for awarding such sentence. Further, we have not been able to sustain the finding of the learned Sessions Judge in respect of Manju. Considering the entire circumstances, we are of the opinion that, while maintaining the conviction of the appellant under Sections 302, I.P.C. and 201, I.P.C. in respect of Phoolmati, the sentence of death awarded to him has to be set aside and, instead, the appellant should be sentenced to imprisonment for life. So far as the offence in regard to the murder of Manju and alleged disappearance of her body is concerned, the prosecution could not be said to have proved its case beyond reasonable doubt. (24.) ACCORDINGLY, reference No. 1 of 1994, submitted by the learned Additional Sessions Judge for confirmation of death sentence, under Section 366, Cr. P.C., is hereby rejected. The criminal appeal No. 573 of 1994 is partly allowed. While maintaining the conviction of the appellant under Section 302, I.P.C. in respect of Phoolmati, the sentence of death awarded to him is set aside and, instead, he is sentenced to imprisonment for life. His conviction and sentence under Section 201, I.P.C. in respect of Phoolmati is maintained. Both the sentences shall run concurrently. The conviction and sentence of the appellant under Section 302, I.P.C. for the alleged murder of Manju and Section 201, I.P.C. for allegedly causing disappearance of her body are set aside. (25.) THE appellant is reported to be in jail. He shall undergo the sentence awarded by learned Sessions Judge as modified herein. Reference rejected, appeal dismissed, and sentence modified.