Judgment Loknath Prasad, J. 1. -death Reference No.2 of 1994 with connected criminal Appeal No.157 of 1994 were taken up together as both had arisen from the Common order of conviction recorded by Sri Manohar Prasad, 1st additional Sessions Judge, Bhagalpur in sessions Trial No.368 of 1993/14 of 1993 through which he convicted appellant bihari Yadav under section 302 of the indian Penal Code and he was awarded death sentence subject to confirmation of this Court and he was also found guilty under section 201 of the Indian Penal code but no separate sentence was awarded against him and the other appellants, namely, Bajrangi Yadav, Ghanshyam Yadav and Dablu Yadav were also convicted and sentenced to undergo imprisonment for life under section 302 or the Indian Penal Code and they were further convicted and sentenced to undergo rigorous imprisonment for seven years under section 201 of the Indian Penal Code but it was ordered that both the sentences shall run concurrently 2. This common order will dispose of criminal appeal and the death reference. 3. The fact in short giving rise to this appeal is that in the early morning of 29.7.1992 the deceased Kalicharan yadav, who, at the relevant time, was staying with his daughter Gita Devi, left for village Raghopur where he got his land near the mango orchard to engage a tractor for ploughing the land he asked his daughter to come to the field with breakfast. Accordingly, at about 11.00 A. M. the daughter of the deceased kalicharan, namely Gita Devi along with her niece Durga Kumari reached the orchard of village Raghopur with the prepared breakfast for the deceased. It has been alleged that immediately the appellants, Bihari Yadav, Bajrangi yadav, Ghanshyam Yadav and Dablu yadav came there armed with weapons and all of them pulled down the deceased and Bihari Yadav gave repeated blow by garasa on the neck and thus the head was completely severed and at that time Bajrangi Yadav, who was holding a bhala assaulted on the stomach and Ghanshyam Yaday and dablu Yadav were assaulting the deceased by garasa on his legs. It has been alleged that the informant and her niece out of fear came near the mango tree and had seen Dablu Yadav rushing to his house and bronght a gunny bag and Bihari Yadav escaped towards southern side with the chopped head of the deceased whereas the other three appellants packed the trunk portion of the body in the gunny bag and also escaped towards the southern side. It is also the prosecution case as stated by the informant in her fardbeyan that some people had seen the occurrence but out or fear neither (hey raised any alarm nor intervened in spite of the alarm raised by the informant, then the informant and her niece were going to wards the police station and in the way had seen a police jeep coming with police force. So, they stopped the jeep near Nurpur Gumti where the fardbeyan was recorded by the A. S. I. Dhrub Singh. It has also been alleged by the informant in her fardbeyan that father got a son and five daughter and son died about ten years ago then the appellant bihari Yadav had forcibly taken away his wife to his house and kept her as his wife only out of lust of property and subsequently the deceased Kalicharan gifted all his properties to his three granddaughters which caused annoyance to the appellants as they are nephews of the deceased and for that some litigations were also going on between the deceased and these appellants in order to grab the properties the deceased committed murder of the deceased. 4. A. S. I. after recording fardbeyan took up investigation and visited the place of occurrence immediately at about 1.00 p. m. and after search the head of the deceased was recovered at a distance from the place of occurrence in kanaila Nala on that very day and on the next day, i. e. on 30.7.1992 the trunk portion of the body was recovered from a well at Kabirpur duly concealed in a gunny bag and after that inquest of the dead body was prepared by the I. O. and the dead body was sent for post-mortem examination. after completing investigation, charge-sheet was submitted as against all the appellants. 5. after completing investigation, charge-sheet was submitted as against all the appellants. 5. All the appellants claimed themselves innocent and denied to have committed the murder of the deceased and their only defence is that they had been falsely implicated in this case only out of previous enmity. 6. Now the first and foremost question for consideration is if the prosecution has been able to bring home guilt as against the appellants and then only the question of confirmation or rejection of death reference will arise. The defence had actually not challenged the factum of murder of the deceased which took place in the fore noon of 29.7.1992 and they had simply denied their participation and had claimed that some unknown persons might have committed the murder of the deceased but they had been implicated only out of enmity. No doubt, the prosecution had examined as many as nine witnesses, out of them P. W.8 Dhrub Singh is the I. O. of this case whereas P. W.9 is Dr. Kailash jha, who held post-mortem on the dead body of the deceased, P. W.3 Sushil kumar Yaday and P. W.4 Munna Kumar yadav are witnesses on the point of in-guest. The P. W.2 Shankar Yadav, P. W.6 satan Yadav and P. W.7 Rohit Yadav, who were initially hearsay witnesses about the occurrence, had not supported the prosecution and admittedly p. W.1 Durga Kumari and P. W.5 Gita devi, who is the informant, are witnesses of the occurrence according to the prosecution case and naturally the prosecution case entirely depends upon the evidence of these two witnesses. 7. P. W.5 Gita Devi is admittedly daughter of the deceased and at the time of occurrence admittedly the deceased Kalicharan was staying in her house situate in village Narga. It is the evidence of this witness that on the date of occurrence in the early morning her father told her that he was going to raghopur to get the lands ploughed by a tractor and directed her to come there with breakfast. Accordingly, she reached near the mango orchard of Raghopur, which belong to her father, with her niece Durga Kumari and when they arrived there, after some time all these appellants came and at that time Bihari yadav was holding garasa and Bajrangi with bhala and Ghanshyam was armed with lathi; and all the four appellants including appellant Dablu Yadav. Accordingly, she reached near the mango orchard of Raghopur, which belong to her father, with her niece Durga Kumari and when they arrived there, after some time all these appellants came and at that time Bihari yadav was holding garasa and Bajrangi with bhala and Ghanshyam was armed with lathi; and all the four appellants including appellant Dablu Yadav. Dablu yadav caught her father and pulled him down on the ground and Ghanshyam yadav, Dablu Yadav and Bajrangi Yadav all along were holding her father on the ground and Bihari Yadav gave several garasa blows on the neck due to that the neck was completely severed from the body. Ghanshyam Yadav also gave bhala blow on the leg and Bajrangi gave lathi blow and after that out of fear she and her niece got themselves concealed near the mango tree and had seen that Dablu yadav was ordered to bring a gunny bag and he brought a gunny bag from his house and Bihari Yadav escaped with the head of the deceased towards the southern side whereas the remaining three appellants kept the trunk portion of the body in the gunny bag and escaped towards the southern side. It is also her evidence that on alarm no body came there for their help into fear and so she along with her niece were going to the police station had seen the police jeep coming near Nurpur Railway crossing and she got the Jeep stopped and gave fardbeyan to the police which was recorded. This witness had also stated about the motive of the occurrence and it is her evidence that about 10 to 12 years prior to this occurrence, her only brother Nand Lal was murdered and the appellant Bihari Yadav forcibly took the wife of her brother, got her married and kept her as his wife to take the properties which belonged to her father and after that some criminal cases were instituted and the appellants were also convicted and her deceased father executed a deed of gift in respect of his properties in the name of his three grand daughters, i. e. daughters of his pre-deceased son which also caused annoyance to the appellants, who are nephews of the deceased. From the cross-examination, it appears that actually the head of the deceased was found duly concealed in a Nala whereas the trunk portion was found in a well. From the cross-examination, it appears that actually the head of the deceased was found duly concealed in a Nala whereas the trunk portion was found in a well. The deceased had also purchased some lands in the name of his daughter-in-law, who was subsequently forcibly taken away by the appellant Bihari yadav as his wife and got a sale deed executed in respect of those lands in favour of the appellant Ghanshyam yadav and for that a title suit was also instituted by the deceased and the deceased also executed a deed of gift in respect of his land in the name of his three grand-daughters and as the appellants are nephews, so they were annoyed and in order to grab the properties of the deceased, he was murdered. 8. The evidence of this witness also finds corroboration from the evidence of P. W. I Durga Kumari, who was admittedly about 12 years old at time of occurrence and the grand-daughter of the deceased and had accompanied P. W.5 (the informant) to the orchard of village raghopur where her grandfather had gone to get the lands ploughed by a tractor. This witness has also consistently stated that in the orchard where her grandfather was sitting these appellants came and pulled down her grandfather and Bihari Yadav chopped his neck by garasa whereas Ghanshyam Yadav gave blow by bhala on the stomach and dablu Yadav and Bajrangi Yadav assaulted on the legs by garasa and after that Bihari Yadav escaped with the severed head to the southern side and the other appellants kept the trunk portion of the dead body in a gunny bag and escaped also towards the southern side, then, she and P. W.5, who is admittedly the sister of her father were going toward Police Station but on the way had seen the police jeep and reported the entire matter to the A. S. I. The presence of this witness fully finds corroboration from the fardbeyan which was lodged immediately after the occurrence to show that this witness had also accompanied P. W.5 upto the mango orchard where the occurrence took place. No doubt, both these witnesses are interested witnesses being daughter and grand daughter of the deceased but on this score alone their evidence is not to be discarded and I had examined the evidence of these witnesses with great care and caution. 9. No doubt, both these witnesses are interested witnesses being daughter and grand daughter of the deceased but on this score alone their evidence is not to be discarded and I had examined the evidence of these witnesses with great care and caution. 9. The evidence of these witnesses also finds corroboration from the objective finding of the I. O. , who has figured as P. W.8. From the evidence of P. W.8 it can be said that the alleged occurrence took place at about 11.00 A. M. or so and the fardbeyan was recorded near nurpur Gumti when this police officer was coming with force in a jeep. So, practically, there is no delay in lodging of the fardbeyan and immediately at about 1.00 P. M. or so the I. O. reached the place of occurrence, which is a mango orchard, as claimed by P. W.1 and p. W.5 and found blood there and as there was rain on the previous day, so blood was mixed with water and he also found mark of violence at the place of occurrence and further the I. O. found trial of blood leading to a nala at a distance of about 200 yards from the place of occurrence where the head portion was recovered which clearly indicated and support the evidence of these two witnesses that the head portion was taken away by the appellant Bihari yadav and due to that there was trial mark up to the place of concealment from the evidence of the I. O. it is also clear that on the next day i. e. on 30.7.1992 he got confidential information and so a well in village Kabirpur was searched and trunk portion of the dead body was recovered in a gunny bag in presence of the witnesses and he prepared the inquest in presence of P. W.3 and P. W.4, namely, Sushil Kumar yadav and Munna Kumar and then the head and the separated trunk were sent for post-mortem examination. So, the objective findings of the I. O. clearly support the case that these two witnesses had seen the occurrence and a vivid description was given in the fardbeyan as to how the deceased was killed and the blood mark was also found there with the mark of violence in the orchard and trial of blood was also found leading to the recovery of the head and the trunk portion was also found duly concealed in a well in a gunny bag. If at all these witnesses had not seen the occurrence, then it was not expected from them to disclose about the occurrence in the manner indicated by them that the head was also separated and the dead body was kept in a gunny bag and the head was taken by one appellant and the trunk portion by other appellants because the head of the deceased and the trunk of the deceased were recovered long after the institution of the fardbeyan. These are strong circumstances to show that though these witnesses are close relation of the deceased, still they are truthful. Moreover, it is not expected from close relation of the deceased to spare the actual assailant and to implicate some other persons. 10. The evidence of P. W. I and p. W.5 also finds corrpboration from the evidence of Dr. Kailash Jha, who has figured as P. W.9. This witness had held post-mortem examination on the dead body of the deceased on 30.7.1992 at 3.15 P. M. , i. e. immediately after the recovery of the dead body. According to the doctor, the head was completely separated by sharp cuts on the neck by more than one stroke which clearly supports the evidence of P. W. I and P. W.5 that several blows by garasa was given on the neck which completely severed the head from the trunk. Further the doctor also found sharp cut injury on the right auxilla and one sharp cut injury on the shoulder and another injury on the left neck and face. Further the doctor also found sharp cut injury on the right auxilla and one sharp cut injury on the shoulder and another injury on the left neck and face. However, the doctor has not found any injury by bhala or even by lathi, Learned counsel for the appellants submitted that actually in the fardbeyan there is allegation that Bajrangi Yadav gave bhala blow on the stomach and Ghanshyam Yadav and dablu Yadav gave blow by garasi on the legs whereas P. W. I Durga Kumari had stated that Ghanshyam gave a bhala blow on the stomach and Dablu Yadav and Bajrangi Yadav gave blow by garasa on the legs though they were holding lathi and P. W.5 had also claimed that ghanshyam Yadav gave blow on the leg by bhala and Bajrangi Yadav gave blow by lathi. So, there is discrepancy in the evidence of these witnesses regarding weapons used by them and the nature of injuries found by the doctor. 11. No doubt, the doctor has not found any lathi injury or even injury caused by bhala and there is some discrepancy in the evidence of P. W. I and p. W.5 and the allegation made in the fardbeyan. But these discrepancies are bound to occur if the witnesses are not tutored and more for the reason that both these witnesses are female and the occurrence took place in their presence and their father and grandfather was murdered in their presence by several persons in such a way that it is quite natural that they must be shocked and terrified to remember as to which of the appellants were holding what weapons and in what manner they assaulted but this much is certain from their evidence that all these appellants participated in the occurrence and they came together and holding weapons and all of them pulled down the deceased and three appellants caught hold of him whereas the main assailant Bihari Yadav gave several blows on the neck by garasa. This fact is also clear from their evidence that some of the appellants had also assaulted by garasa or even by bhala and as the bhala is a weapon in which a long wooden portion works as a handle, it can be seen also as a lathi. This fact is also clear from their evidence that some of the appellants had also assaulted by garasa or even by bhala and as the bhala is a weapon in which a long wooden portion works as a handle, it can be seen also as a lathi. So, it is nor possible for these rustic witnesses, more particularly the female rustic to give a vivid description in such a situation but at least their evidence clearly sports that the main accused Bihari Yadav gave several blows by garasa on the neck severing the head and the other appellants also assaulted and helped the main accused in commission of the murder. So, the other appellants are definitely guilty under section 302/34 of the Indian Penal Code if not directly under section 302 of the Indian penal Code. This much is certain from the evidence of these two witnesses and the evidence of the I. O. and the doctor that they had seen the occurrence and they also proved the occurrence and broad feature of the entire occurrence. 12. Learned counsel for the prosecution rightly argued that P. W. I and P. W.5 are rustic witnesses, more particularly, feuale rustic and as such their evidence are to be considered in that way giving concession to the way of rustic life and in support of this contention he relied upon a case of the support of this contention he relied upon a case of the Supreme Court reported in a. I. R.1973 S. C.2622. In the aforesaid case it was held by the Supreme Court that if the witnesses are rustic them their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence cf the various witnesses the court has to inform itself that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in in essential parts cannot militate against the veracity of the core of the testimony, v provided there is the impress of truth and conformity to probcbility in the substantial fabric of testimony delivered. Keeping in view the aforsaid test laid down by the apex court,it can be said that in the instant case the witnesses are not only rustic but also illiterate female and the occurrence to place in such a ghastly way in their presence of a very close relation and even their alarm could not bring any help from the villagers, such contradictions are bound to occur but definitely they had been able to prove the broad feature and probability of the case and the manner in which this occurrence took place. 13. Learned counsel for the appellants submitted that admittedly there was enmity and litigations were going on between the deceased and the appellants and Ext.-A is the certified copy of sanha Entry No.720 of 1991 filed by the appellant Ghanshyam Yadav against his daughter-in-law, who subsequently became the wife of the appellant Bihari yadav and Ext.-C indicates that suit was dismissed for default on 28.4.1992 and for the reasons of enmity the appellants have been implicated and there is no independent witness to corroborate the evidence of P. W. I and P. W.5 and even the independent witnesses examined on behalf or the prosecution, namely, P. W.2 shankar Yadav, P. W.6 Satan Yadav and p. W.7 Rohit Yadav had not supported the prosecution case and so they were declared hostile. In that view of the matter, the allegation of participation of the appellants appears to be doubtful. So far enmity is concerned, it is well admitted and it is not expected that the appellants had any fear or apprehending any danger from an old man aged about 90 years and as against females and sanaha Entry (Ext.-A) apprehending danger appears to be motivated only to make out the case. Similarly no doubt the deceased filed title suit in respect of some of the lands, which were purchased in the name of his daughter-in-law, but it has come in evidence that after the death or murder of the son of the deceased, appellant Bihari Yadav forcibly married with the widow and kept her as his wife and got the lands, which were in her name as a daughter-in-law of the deceased, transferred and the title suit was dismissed prior to the occurrence. It has also come in evidence that the deceased was apprehending trouble from the appellants and so he was not living in his own house. It has also come in evidence that the deceased was apprehending trouble from the appellants and so he was not living in his own house. Thus, it indicates that it is the appellants, who were annoyed with the deceased and they wanted to kill him so that they can easily enjoy the properties of the deceased, who had, filed title suit as against the appellants. 14. So, the documents indicate that the appellants were in hostile term with the deceased and this is one of the grounds or motive for this murder. So far P. W.2, P. W.6 and P. W.7 are concerned, they had not supported the prosecution but P. W.2, P. W.6 and P. W.7 are not the witnesses of the occurrence rather they are hearsay witnesses and claimed before the I. O. that they learnt about the murder of the deceased and participation of the appellants only through the informant (P. W.5 ). These witnesses had also admitted. that the deceased was done to death on the date of occurrence and had not supported other part of the story regarding disclosure of names of the appellants by p. W.5 only for the reason that it has come in evidence and also there is evidence of the I. O. , who has figured as p. W.8 that not a single witness of the village were willing to disclose about the occurrence only out of fear from the appellants. Thus, it can be said that the appellants were exercising influence in the locality and out of fear, these witnesses and had not supported the prosecution case in toto. However, the prosecution case is well proved from the two any witnesses and the corroborative evidence of the I. O. and doctor as discussed above. 15. Thus, it can be said that the appellants were exercising influence in the locality and out of fear, these witnesses and had not supported the prosecution case in toto. However, the prosecution case is well proved from the two any witnesses and the corroborative evidence of the I. O. and doctor as discussed above. 15. Learned counsel for the apellants also submitted that from the evidence of the Doctor and the postmortem report, it can be said that the doctor at the time of post-mortem found undigested food in the stomach of the deceased, thus, it can be said that the occurrence had not taken place at about 11.00 A. M. on 29.7.1992 because it is the prosecution case that the deceased left the house of P. W.5 without taking any food and the murder of the deceased might have been committed in the previous night in the late hour when the deceased had taken his meal in the night and after the murder of the deceased the appellants were implicated. In this connection it can be said that the deceased left the house of P. W.5 in the. early morning and had gone to bring a tractor for ploughing his land and it is quite possible that he had taken food somewhere else. In that view of the matter, the doctor might have found undigested food at the time of post-mortem examination. Moreover, there overwhelming circumstance as discussed above that the occurrence took place at about 11.00 A. M. or so on 29,7.1992. In that view of the matter, the finding of the doctor regarding undigested food in the stomach of the deceased is not a valid ground for disbelieving the entire prosecution case. 16. Learned counsel for the appellants during the course of arguments submitted that the entire investigation is faulty and tainted and the prosecution case is not to be relied upon because the mandatory provision of section 157 of the Cr. 16. Learned counsel for the appellants during the course of arguments submitted that the entire investigation is faulty and tainted and the prosecution case is not to be relied upon because the mandatory provision of section 157 of the Cr. P. C. , i. e. the requirement of sending the F. I. R. forthwith has not been complied with and so it can be said that nobody had seen the occurrence and after the recovery of the dead body on 30.7.1992 the F. I. R. was lodged implicating the appellants only out of enmity and in the instant case, according to the prosecution, admittedly the fardbeyan was recorded at about 11.30 A. M. on 29.7.1992 and according to the I. O. , on that very day the fardbeyan was sent to nath Nagar Police Station and F. I. R. was drawn up, on that very day but the f. I. R. reached the court of C. J. M. , bhagalpur, who is competent to take cognizance in the matter, as late as on 1.8.1992 and in any view of the matter, it should have reached there on 30.7.1992 itself and delay of two days creates an impression that the F. I. R. was lodged subsequently and the investigation is tainted and it has caused prejudice to the appellants. In support of this contention, learned counsel for the appellants relied upon a case law of the supreme Court reported in 1994 supp (2) Supreme Court Cases 372 (Arjun Marik and others vs. State of Bihar ). On the other hand, it was contended on behalf of the prosecution that from the f. I. R. itself i. e. Ext.- 3 and the fardbeyan and also the evidence of the I. O. , it appears that originally fardbeyan was recorded near the P. O. and then the fardbeyan was sent to the police station concerned for recording F. I. R. and put his signature on 1.8.1992 and it is quite possible that the C. J. M. was not available and so the in-charge court might have put his signature at a later date, i. e. on 1.8.1992. Moreover, mere sending of the F. I. R. or receipt of the same after two days of the occurrence itself is not a ground for disbelieving the entire investigation and for rejecting the prosecution case, unless it is proved from the cogent evidence on the record that there was deliberate delay on the part of the police in the F. I. R. and attempts were made for distorting the facts or antedating F. I. R. Learned counsel appearing on behalf of the prosecution had relied upon a case or the Division Bench of our High Court reported in P. L. J. R.1994 (1) 270 (Sheo Narayan Gope vs. The State of Bihar ). 17. On examination of various decisions of the Supreme Court it can be said that the F. I. R. is to be sent forthwith to the Magistrate empowered to take cognizance for the reason that the concerned Magistrate will have an early information about the crime so that he may exercise his power under section 159, Cr. P. C. and further forth with dispatch of the F. I. R. is also a safeguard against the concoction and embellishment in the F. I. R. and so far arjun Mariks case (supra) is concerned, it can be said that it has also been observed in that case that mere delay in sending of the F. I. R. will not itself lead to a conclusion ti at the investigation is tainted and the prosecution case is to be discarded and it has to be proved that the deliberate delay was caused in sending of the F. I. R. and it has resulted in miscarriage of justice and there was chance of concoction and implication. From the facts of Arjun Mariks case (Supra) it can be said that there were several materials to justify that the delay in sending the F. I. R. was deliberate and it had created doubt regarding suppression of actual facts and concoction to some extent, firstly for the reason that the original sanaha entry was not produced before the trial court and there were other circumstances also so far the instant case is concerned, there is no chance of concoction and delay in sending of the F. I. R. for two days and it had not caused any prejudice and the investigation was also not tainted for the reason that the informant is a rustic lady and from the evidence of the I. O. it can be said that the recorded the fardbeyan immediately after the occurrence and he found various incriminating facts at the P. O. Morever, if at all the f. I. R. was lodged subsequently after the recovery of dead body, as claimed by the appellants, counsel, then in that contingency the informant might have given the detailed version regarding assault and the weapons used by the appellants but there are contradictions in the nature of injuries and the weapons used by the appellants as mentioned in the f. I. R. and in the evidence of P. W.1 and p. W.5. This indicates that the F. I. R. was not lodged subsequent to the recovery of the dead body of the deased. 18. Moreover, from Sheo Narain copes case (supra), it can be said that two earlier decisions of the Supreme court was considered as reported in a. I. R.1972 S. C.2679 (Pala Singh and ors. vs. State of Punjab) and A. I. R.1976 s. C.2304 (Sarwan Singh and ors. vs. State of Punjab) and these two decisions are of larger Bench of the Supreme court and it was held that mere delay in despatch of the First Information report is not circumstance which can throw out the prosecution case in its entirety unless there is cogent reason to show that the delay was deliberate and there was chance of concoction and introduction of materials prejudicial to the accused persons. In the instant case, practically there is nothing on the record to show that the delay of two days in sending or receiving the F. I. R. before the Magistrate was deliberate and the prosecution made attempt to fabricate and introduce new materials prejudicial to the defence. Under the circumstances, I am of the opinion that the delay of two days in receiving the f. I. R. before the Magistrate was not deliberate and it has not caused any prejudice or the investigation was not tainted and there was no concoction and as such I am of the opinion that for this reason the prosecution case itself is not to be disbelieved in its entirety. 19. So, from the discussions made above and from the evidence on the record, this fact is well proved beyond all reasonable doubt that on 29.7.1992 at about 11.00 A. M. or so all these appellants came together at mango orchard of the deceased and the appellant bajrangi Yadav, Ghanshyam Yadav and dablu Yadav pulled down the deceased on the ground and pressed him and in the meantime appellant Bihari Yadav gave several blows by garasa severing his neck from the trunk and other common intention to commit murder of the deceased only out of enmity. I, therefore, come to the conclusion that the trial court was perfectly justified in convicting the appellant Bihari Yadav under section 302 of the Indian Penal code and other three appellants are equally guilty under section 302/34 of the Indian Penal Code. These appellants are also guilty under section 201 of the indian Penal Code because appellant bihari Yadav took the head and other three appellants took the trunk portion to the dead body of the deceased and concealed at two different places only to destroy the evidence of murder of the deceased in order to screen themselves from legal punishment. 20. Now the question for consideration is whether the court below was justified in awarding death sentence to the appellant Bihari Yadav and the death reference is liable for confirmation. 20. Now the question for consideration is whether the court below was justified in awarding death sentence to the appellant Bihari Yadav and the death reference is liable for confirmation. Now after the amendment of section 354 (3) of the Code of Criminal procedure, life sentence is a rule and the death sentence is to be awarded in exceptional case and for that special reason has to be assigned by the court and the circumstances under which death sentence is to be awarded has been fully laid down by the apex court reported in A. I. R.1980 S. C.898. The trial court has awarded death sentence to the appellant Bihari Yadav mainly for the reason that he committed murder of the deceased, who was aged about 90 years or so in a brutal manner only due to lust of the properties, i. e. to grab the properties of the deceased because the deceased was in litigating term and the appellant Bihari Yadav forcibly married the widow daughter-in-law of the deceased got in her name. The other reason assigned by the trial court for awarding death sentence is that the appellant Bihari Yadav only out of lust of properties committed the murder of the deceased in brutal way and unless the death sentence is awarded, the properties of the deceased will not be safe in the hands of his heirs. In my opinion, every murder is a brutal and only on the ground that the murder was committed. in a brutal way, it is not justified for the court to award extreme penalty and for awarding death sentence the age of the accused is to be considered and if the accused is young or old, the probability that the accused can be reformed and if at all the accused acted under duress are to be considered. Admittedly, the appellant bihari Yadav is a young man aged abont 25 years. Moreover, the widow daughter-in-law is living with him as his wife and he was under the belief that he is entitled to the property of his wife and the deceased was creating hurdle and instituted some cases against him and his family members and it might have caused annoyance and out of anger he committed the murder of the deceased. Considering all these facts, I am of the opinion that in the instant case the death sentence is neither necessary nor desirable. Considering all these facts, I am of the opinion that in the instant case the death sentence is neither necessary nor desirable. Accordingly, the death Reference for confirmation of the death sentence of the appellant bihari Yadav is hereby rejected and though he is found guilty under section 302 of the Indian Penal Code, his death sentence is commuted and modified to life sentenced and he shall undergo imprisonment for life under section 302 of the Indian Penal Code and further he is also sentence to undergo imprisonment for seven years under section 201 of the indian Penal Code arid both sentences will run concurrently. Accordingly, the death Reference is disposed of. 21. So far appellant Nos.2 to 4, namely, Bajrangi Yadav, Ghanshyam yadav and Dablu Yadav are concerned, they are definitely guilty under section 302/34 of the Indian Penal Code and as such the Court below rightly sentenced them to undergo imprisonment for life and further they were sentenced to undergo rigorous imprisonment for seven years under section 201 of the Indian penal Code and also ordered that both sentences will run concurrently and as such the conviction and sentence of these appellants are hereby confirmed and maintained. 22. In the result, Death Reference No.2 of 1994 is hereby rejected and the Cr. Appeal No.157 or 1994 is dismissed in the manner indicated above. Order Accordingly.