U. S. TRIPATHI, J. ( 1 ) THE condemned prisoner Shiv Shankar has preferred this appeal against his conviction under Sections 302, 376/511, 394, 504 and 506 I. P. C. and sentence of extreme penalty of death and fine of Rs. 10,000. 00 under Section 302 I. P. C. , R. I. for a period of 7 years and fine of Rs. 5,000. 00 under Sections 376/511 I. P. C. R. I. for a period of 5 years and fine of Rs. 5000. 00 under Section 394 I. P. C. and fine of Rs. 1000. 00 each under Sections 504 and 506 I. P. C. ( 2 ) THE prosecution story, briefly stated, was as under :-APPELLANT Shiv Shankar alias Chaukidar and Bharat Singh (P. W. 1) were residents of village Nivalpur, P. S. Shamshabad, district Farrukhabad. Bharat Singh (P. W. 1) had two daughters Smt. Usha Devi (21) deceased and Pushpa Devi (P. W. 2) Smt. Usha Devi was married, but on the date of occurrence she was residing at the house of her father Bharat Singh had his agricultural plots towards west of village abadi. There was maize crop in the field near Rasta. Jagram (P. W. 3) had his field towards east of the field of Bharat Singh (P. W. 1) in which there was maize crop. ( 3 ) ON the morning of 8-8-1993 Smt. Usha Devi deceased along with her younger sister Pushpa Devi had gone to her maize field for throwing filth. After throwing filth in a pit in the said maize field they were returning to their house. At about 7. 15 A. M. appellant Shiv Shankar alias Chaukidar emerged out from maize field of Yograj, caught hold of Smt. Usha Devi and made her fall down with intent to commit rape on her. When Smt. Usha Devi resisted and raised alarm, the appellant started inflicting knife blows on her. Pushpa Devi (P. W. 2) also raised alarm. Hearing their cries Bharat Singh (P. W. 1) Jag Ram (P. W. 3) and Ram Prakash rushed to the spot, who observed the appellant causing knife blows on Smt. Usha Devi, lying in maize field. On the challenge of the witnesses, the appellant removed Lar, Payal and Kundal from the person of Smt. Usha Devi and ran away extending threats. Hearing their cries Bharat Singh (P. W. 1) Jag Ram (P. W. 3) and Ram Prakash rushed to the spot, who observed the appellant causing knife blows on Smt. Usha Devi, lying in maize field. On the challenge of the witnesses, the appellant removed Lar, Payal and Kundal from the person of Smt. Usha Devi and ran away extending threats. ( 4 ) BHARAT Singh (P. W. 1) arranged a conveyance and carried Smt. Usha Devi deceased to the police station, but she succumbed to her injuries in the way. Bharat Singh (P. W. 1) got prepared report of the occurrence (Ext. Ka-1) from one Jawahar. He reached along with dead body of Smt. Usha Devi at police station Shamshabad at 8. 30 A. M. and lodged report. Chik, F. I. R. (Ext. Ka-3) was prepared by Head Constable Ziledar Singh (P. W. 5), who made an endorsement of the same at G. D. report (Ext. Ka-4) and registered a case under Sections 376, 511, 394, 302, 504 and 506 I. P. C. against the appellant. ( 5 ) THE investigation of the case was taken up by Sub Inspector Abhay Singh, who interrogated Bharat Singh (P. W. 1) at the police station conducted inquest of the dead body of Smt. Usha Devi deceased and prepared inquest report (Ext. Ka-8) and other relevant papers. Dead body of Smt. Usha Devi was sealed and sent for post-mortem. Thereafter, the I. O. came to the spot inspected place of occurrence and prepared site plan (Ext. Ka-5 ). He also took into possession the blood stained and sample earth and prepared recovery memo (Ext. Ka-4) ( 6 ) AUTOPSY on the dead body of Smt. Usha Devi deceased was conducted on 8-8-1993 at 3 P. M. by Dr. R. Singh (P. W. 4), who found several stabbed and incised wounds on the person of deceased and cause of death due to shock and hemorrhage, as a result of ante mortem injuries. The Doctor prepared post-mortem report (Ext. Ka-2) ( 7 ) THE I. O. interrogated other witnesses and on completion of investigation submitted charge sheet (Ext. Ka-6) against the appellant. ( 8 ) COGNIZANCE of the case was taken up by C. J. M. , who committed the case to the Court of Sessions. The Doctor prepared post-mortem report (Ext. Ka-2) ( 7 ) THE I. O. interrogated other witnesses and on completion of investigation submitted charge sheet (Ext. Ka-6) against the appellant. ( 8 ) COGNIZANCE of the case was taken up by C. J. M. , who committed the case to the Court of Sessions. ( 9 ) THE appellant was charged with the offence punishable under Sections 302, 376/511, 394, 504 and 506 I. P. C. He pleaded not guilty and contended that he was falsely implicated on account of enmity. The defence of the appellant according to suggestion given to the prosecution witnesses was that Deoki Nandan, husband of Smt. Usha Devi had illicit relations with Pushpa Devi, younger sister of deceased and he committed her murder and subsequently married with Pushpa Devi (P. W. 2 ). ( 10 ) THE prosecution in support of its case examined Bharat Singh (P. W. 1), Pushpa Devi (P. W. 2), Jagram (P. W. 3) as witnesses of fact, besides Dr. R. Singh (P. W. 4) and Head Constable Ziledar Singh (P. W. 5) as formal witnesses. The appellant did not adduce any evidence in his defence. ( 11 ) THE learned Sessions Judge on considering the evidence of the prosecution held that the prosecution successfully proved the guilt of the appellant for the offences punishable under Sections 376/511, 302, 394, 504 and 506 I. P. C. With these findings he convicted him under said Sections and sentenced as mentioned above. ( 12 ) AGGRIEVED with his above convictions and sentences, the appellant has preferred this appeal. The Sessions Judge has also made Reference No. 12 of 2000 for confirmation of death penalty awarded to the appellant. ( 13 ) WE have heard Sri S. K. Srivastava, learned counsel for the appellant and Sri K. C. Saxena, learned A. G. A. for the State at great length and perused the evidence on record. ( 14 ) IT is alleged that Smt. Usha Devi deceased died on 8-8-1993 on account of knife injuries. The appellant had not disputed identity, death and cause of death of Smt. Usha Devi deceased. ( 15 ) DR. R. Singh (P. W. 4) stated that he conducted autopsy on the dead body of Smt. Usha Devi (21) on 8-8-1993 at 3. 10 P. M. and found following ante mortem injuries on her person. The appellant had not disputed identity, death and cause of death of Smt. Usha Devi deceased. ( 15 ) DR. R. Singh (P. W. 4) stated that he conducted autopsy on the dead body of Smt. Usha Devi (21) on 8-8-1993 at 3. 10 P. M. and found following ante mortem injuries on her person. (1) Stabbed wound 4 x 2 cm x chest cavity on over tip of left breast, margins clean cut. (2) Stabbed wound 2. 5 x 1cm x chest cavity deep on left side of chest 6cm lateral and below injury No. 1. (3) Incised wound 9 cm x 3 cm x chest cavity deep on left side of chest 3 cm below injury No. 2. (4) Stabbed wound 2. 5 x cm x 0. 5 cm x chest cavity deep, 2 cm below injury No. 3. Character as above. (5) Incised wound 14cm x 3 cm x muscle deep on medial aspect of lower third fore arm including elbow joint, obliquely placed. (6) Incised wound 6 in number in an area of 18 cm x 11 cm on dorso medial aspect of left fore arm including elbow, size of wound 6 cm x 2cm upto 3 cm x 1 cm x muscle deep in different directions. (7) Incised wound 4 cm x 1 cm x dorsum of left hand on outer aspect of index finger. (8) Incised wound 3 cm x 0. 5 cm on Palmer aspect of left ring finger. (9) Incised wound six in number in an area of 13 x 6 cm measuring 7 cm x 0. 5 cm x to 4 x 3 cm x tissues deep on A. L. aspect of left thigh. (10) Incised wound 2 in number 3 cm on A. L. aspect of right forearm and elbow measuring 10x4 cm and 7x4 cm x tissue deep. ( 16 ) THE internal examination showed 6th rib cut, pleura cut at three places, left lung, pericardium cut, heart cut on left ventricle. Stomach was empty. Small intestine contained gases and pasty material. Large intestine contained gases and fecal matter. ( 17 ) THE Doctor opined that cause of death was due to shock and hemorrhage as a result of ante mortem injuries. Stomach was empty. Small intestine contained gases and pasty material. Large intestine contained gases and fecal matter. ( 17 ) THE Doctor opined that cause of death was due to shock and hemorrhage as a result of ante mortem injuries. ( 18 ) THE Doctor clarified in his cross examination that the same blade of knife may cause injuries of different breadth as breadth of injury depends on the nature, depth and seat of injury. It is not necessary that the breadth of the injury would be in proportion to the blade of knife. He also clarified that injuries on the person of deceased could be caused by one knife or different knives. It is not the case of either party that more than one person caused knife injuries on the deceased. No such suggestion was given to the prosecution witnesses. As such there can be no scope of argument that more than one person caused knife injuries on the deceased with different knives. So far the different measurements of breadth of injuries are concerned, it had been clarified by the Doctor that the injury of different breadth, may be caused by same knife, as the breadth of injury depends on the force applied for causing the blow, depth of wound and the place of the body over which it is caused. ( 19 ) THE above evidence of ocular witnesses and medical evidence proved identity, death and cause of death of deceased Smt. Usha Devi. ( 20 ) THE occurrence, according to prosecution, took place on the morning of 8-8-1993 at about 7. 15 A. M. in the maize field. The ocular witnesses Bharat Singh (P. W. 1), Pushpa (P. W. 2) and Jagram (P. W. 3) have categorically stated that while Smt. Usha Devi along with Pushpa (P. W. 2) was returning to her house after throwing filth in her maize field, the appellant caught hold of her, made her fall down for committing rape and on her resistance caused knife injuries on her. The I. O. had shown the place of occurrence with letter "a" in the site plan (Ext. Ka-5), which is in the maize field of Yograj S/o Chhajju which was adjacent to the maize filed of Bharat Singh (P. W. 1 ). The Appellant had not disputed above date, time and place of occurrence. The I. O. had shown the place of occurrence with letter "a" in the site plan (Ext. Ka-5), which is in the maize field of Yograj S/o Chhajju which was adjacent to the maize filed of Bharat Singh (P. W. 1 ). The Appellant had not disputed above date, time and place of occurrence. ( 21 ) THE F. I. R. of the case was lodged by Bharat Singh (P. W. 1 ). Learned Counsel for the appellant contended that Bharat Singh (P. W. 1) claimed himself to be an eyewitness, but Pushpa Devi (P. W. 2) admitted in her cross examination that her father reached the spot when appellant Shiv Shankar ran away from the spot and therefore, Bharat Singh had not seen the occurrence. He further contended that the informant admitted that Jawahar Singh had prepared report as told by Smt. Usha Devi deceased and he had said nothing to Jawahar Singh. That he stated in his examination-in-chief that he had dictated report to Jawhar Singh and he again stated that Smt. Usha Devi remained unconscious till the preparation of report and this shows that Bharat Singh (P. W. 1) was not the author of the report. ( 22 ) IT may be mentioned at the very outset that the examination-in-chief of Bharat Singh (P. W. 1) was recorded on 28-6-1995 and cross-examination was done on 9-2-1999 and 29-2-2000. After such delay some variations in the statement were bound to come. If entire statements of Bharat Singh (P. W. 1), Smt. Usha Devi (P. W. 2) and Jagram (P. W. 3) are read as a whole, it would appear that Bharat Singh (P. W. 1) and Jagram (P. W. 3) came to the spot hearing cries of Smt. Usha Devi deceased and Pushpa Devi (P. W. 2 ). If the witnesses came to the spot running they would have seen the occurrence, while they were running and also could see the occurrence on reaching the spot. It might be possible that Pushpa Devi (P. W. 2), who was observing the occurrence from very close, could have noticed the presence of her father Bharat Singh (P. W. 1) only when he reached to the spot. But it does not mean that Bharat Singh was not in a position to observe the occurrence while he was coming to the spot. But it does not mean that Bharat Singh was not in a position to observe the occurrence while he was coming to the spot. Moreover, Jagram (P. W. 3) has stated that on enquiry Smt. Usha Devi deceased told the witnesses on the spot that appellant ran away after causing injuries on her and that when he reached the spot Smt. Usha Devi was talking. Bharat Singh (P. W. 1) also stated that on the way to the police station Smt. Usha Devi regained consciousness and then again became unconscious. As such Bharat Singh (P. W. 1) was in a position to dictate the report. ( 23 ) THE learned counsel for the appellant further contended that it was mentioned in the F. I. R. itself that Smt. Usha Devi died on the way to the police station and report was prepared after her death. But Bharat Singh (P. W. 1) stated in his evidence that he had got the report drafted prior to the death of Smt. Usha Devi and he further stated that Smt. Usha Devi died after half an hour on his reaching to the police station, which shows that Bharat Singh (P. W. 1) had not dictated the report. Bharat Singh (P. W. 1) has stated that he met Dewanji (Head Constable) whom he handed over the report, after half an hour of reaching the police station and thus it is clear that by the time report was handed over to Head Constable, Smt. Usha Devi was dead. As mentioned above, the cross examination of the witness was conducted after 5 years of his examination-in-chief and the above minor variation was natural. But the above variation does not affect prosecution story. ( 24 ) IT was next contended by the learned counsel for the appellant that occurrence took place at about 7. 15 A. M. and the report was lodged at 8. 30 A. M. i. e. about one hour 15 minutes after the occurrence, but Bharat Singh (P. W. 1) stated that he took the deceased to the police station on charpai and in these circumstances he could not reach the police station by such time and report was ante timed. The distance of police station from the place of occurrence was only 4 Km. That distance of 4 Km. could be covered within one hour or less than one hour, if travelled on foot. The distance of police station from the place of occurrence was only 4 Km. That distance of 4 Km. could be covered within one hour or less than one hour, if travelled on foot. Moreover, Bharat Singh (P. W. 1) was going to police station taking the deceased who was then alive and therefore, he would be anxious to reach the police station as early as possible and therefore would adopt faster speed so that medical aid be provided to the deceased. As such, the report could be lodged at the time alleged by the prosecution. ( 25 ) TO prove the factum of occurrence and complicity of the appellant, the prosecution relied on ocular testimony of Bharat Singh (P. W. 1), Smt. Usha Devi (P. W. 2) and Jagram (P. W. 3), who had given eye witness account of the occurrence. ( 26 ) BHARAT Singh (P. W. 1) is father of the deceased. He stated that on the date of occurrence at about 7. 15 A. M. his daughters Smt. Usha Devi and Pushpa Devi had gone to their maize field for throwing filth and when they were returning, the appellant, who was present in maize field, came out of the field, caught hold of Smt. Usha Devi and in order to commit rape on her made her fall down. When Smt. Usha Devi resisted, the appellant caused knife injuries on her. Usha Devi and Pushpa raised alarm. Hearing cries of his two daughters he reached the spot. Jagram and Ram Prakash also reached the spot and the appellant ran away removing lar, kundal and Payal of the deceased. ( 27 ) THE occurrence took place in the morning. In all probabilities the witness would have been at his house. The maize filed in which the deceased and her younger sister Pushpa had gone to throw filth was near village abadi, as Pushpa (P. W. 2) stated that the distance of field was less than one Km. from her house and therefore, the witness was in a position to hear the cries of his daughters and to reach the spot. The number of injuries on the person of deceased indicated that the assailant must have taken sufficient time to inflict them. The witness had also reached the police station along with dead body of deceased and lodged report at 8. 30a. M. on the same day. The number of injuries on the person of deceased indicated that the assailant must have taken sufficient time to inflict them. The witness had also reached the police station along with dead body of deceased and lodged report at 8. 30a. M. on the same day. The General Diary report corroborates presence of witness on the spot. ( 28 ) AS indicated above Pushpa Devi (P. W. 2) no doubt stated that the witness came to the spot after running of the appellant, but as mentioned above, he was in a position to observe the incident while approaching the spot. The witness is father of the deceased and it was not expected of him to spare out the real assailant and falsely implicate innocent person. It was suggested to the witness that his son-in-law (husband of Smt. Usha Devi) had illicit ralations with his younger daughter Pushpa and therefore, he murdered his elder daughter. The witness had repelled above suggestion. It is admitted that after the death of Smt. Usha Devi, marriage of her younger sister was performed with the husband of deceased. In case the son-in-law of the witness had murdered his elder daughter he would have never married his younger daughter with him. Therefore, the suggestion and defence version stood belied. There is nothing in the cross examination of the witness to show that he had any ill will, grudge or motive to falsely implicate the appellant. ( 29 ) THE next witness of the occurrence is Pushpa Devi (P. W. 2) Admittedly, she is younger sister of Smt. Usha Devi deceased. She claimed that she had gone with Smt. Usha Devi deceased to maize field to throw filth. After throwing filth she was returning to her house along with Smt. Usha Devi deceased. On the way, appellant caught hold of Smt. Usha Devi and in an attempt to commit rape on her made her fall down and on her resistance inflicted knife blows. On challenge of witnesses the appellant ran away after removing Lar, Kundal and Payal of the deceased. There is nothing in her cross-examination to show that she did not accompany her elder sister or that she is not a truthful witness. On challenge of witnesses the appellant ran away after removing Lar, Kundal and Payal of the deceased. There is nothing in her cross-examination to show that she did not accompany her elder sister or that she is not a truthful witness. ( 30 ) THE learned counsel for the appellant contended that if the witness along with the deceased had gone to throw filth, they must be carrying some basket, but no basket was recovered from the spot. In our opinion, this argument is without any basis, as it was not clarified from any of the ocular witness, as to whether the deceased and Smt. Usha Devi were carrying basket or something else and whether they left basket on the spot or it was taken away from the spot. Without such clarification there is no scope for the argument. ( 31 ) THERE is nothing in the cross-examination of the witness to disbelieve her. ( 32 ) THE last ocular witness of the occurrence is Jagram (P. W. 3 ). He stated that at the time of occurrence he was present at his maize field, which was at a distance of 100 metres from the maize of Bharat Singh (P. W. 1 ). On hearing the shrieks of Smt. Usha Devi and Pushpa Devi, he reached the spot and observed the appellant causing knife injuries on Smt. Usha Devi. On his challenge, the appellant ran away removing her ear tops (kundal), payal and lar. The witness stated in his cross-examination that there was maize crop in his field, which was near the field of Bharat Singh. He further clarified that he reached his maize field at 6. 15 A. M. and remained there for two hours. Thus, at the time of occurrence, the witness was in his maize field and could easily reach the spot hearing the shrieks of two girls. No enmity, ill will or grudge with the appellant had been suggested. The witness is, therefore, an independent witness and there is no ground to disbelieve him. ( 33 ) THE ocular testimony of the witnesses noted above finds corroboration from F. I. R. , medical evidence and other circumstances of the case referred to above. ( 34 ) THE learned counsel for the appellant contended that the prosecution had not examined the Investigating Officer and therefore it was fatal to the prosecution story. ( 33 ) THE ocular testimony of the witnesses noted above finds corroboration from F. I. R. , medical evidence and other circumstances of the case referred to above. ( 34 ) THE learned counsel for the appellant contended that the prosecution had not examined the Investigating Officer and therefore it was fatal to the prosecution story. ( 35 ) ON the date of argument, we have enquired from Sri S. K. Srivastava, learned counsel for the appellant as to whether any prejudice has been caused to the accused appellant on account of non production of the Investigating Officer, if so to point out them. But the learned counsel for the appellant could point out none. ( 36 ) THE effect of non examination of Investigating Officer has been considered by the Apex Court in various cases. In the case of Ramdeo v. State of U. P. , reported in 1995 Supl. (1) SCC, 547, the Apex Court held that it is always desirable for the prosecution to examine the Investigating Officer. However, non examination of the Investigating Officer does not in any way create any dent in the prosecution case, much less affect the credibility or otherwise trustworthy testimony of the eye witness. ( 37 ) IN the case of Bihari Prasad v. State of Bihar reported in (1996)2 SCC, 317, the Apex Court held that for non examination of the Investigating Officer the prosecution case need not fail. It would not be correct to contend that if the Investigating Officer is not examined the entire case would fall to the ground as the accused were deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. It was held that the case of prejudice likely to be suffered must depend upon facts of each case and no universal strait jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial. ( 38 ) IN the case of Ambika Prasad v. State (Delhi Admn.) AIR 2000 SC 718 , it was held that non examination of Investigating Officer could not be a ground for disbelieving eye witnesses. ( 38 ) IN the case of Ambika Prasad v. State (Delhi Admn.) AIR 2000 SC 718 , it was held that non examination of Investigating Officer could not be a ground for disbelieving eye witnesses. In the case of Bahadur Naik v. State of Bihar, 2000 0 Crlj 2466 it was held by the Apex Court that non examination of an Investigating Officer was of no consequence when it could not be shown as to what prejudice had been caused to the appellant by such non-examination. ( 39 ) LASTLY, it was held in the case of Ram Gulam Chaudhary v. State of Bihar, 2001 AIR SCW 3802 as below :-"in our view, in this case also non examination of Investigating Officer has caused no prejudice at all. All that Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The Investigating Officer was not an eye-witness. The body had already been removed by the Appellants. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. Their were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. We, therefore, see no substance in this submission. " ( 40 ) AS such non examination of Investigating Officer is not fatal to the prosecution case and non examination of Investigating Officer is not a ground to disbelieve the ocular witnesses. As mentioned above, the learned counsel for the appellant could not show that any prejudice has been caused to the appellant on account of non examination of the Investigating Officer. The evidence of the ocular witnesses further shows that no contradiction was put to them regarding any fact stated by the eye witnesses from their statements under Section 161 Cr. P. C. . or about the place of occurrence. The evidence of the ocular witnesses further shows that no contradiction was put to them regarding any fact stated by the eye witnesses from their statements under Section 161 Cr. P. C. . or about the place of occurrence. There was also no cross examination regarding the place of occurrence stated by the witnesses and as such the appellant was not put to any prejudice by non examination of Investigating Officer and therefore, we find no substance in the submission that non examination of Investigating Officer was fatal to the prosecution story. ( 41 ) FROM the evidence of ocular witnesses, medical evidence and other circumstances it was proved beyond all reasonable doubts that the appellant committed murder of Smt. Usha Devi deceased and therefore, the offence punishable under Section 302 I. P. C. was fully established against him. ( 42 ) THE appellant was further charged with the offence punishable under Section 394 I. P. C. for having robbed the deceased of her ear tops, Lar (Chain) and Payal. Jagram (P. W. 3), who had reached the spot has categorically stated that when he challenged the appellant, the appellant left the spot removing ear tops, lar and Payal of the deceased. He had also stated that he had seen Smt. Usha Devi deceased wearing those ornaments prior to the occurrence. Bharat Singh (P. W. 1) and Pushpa Devi (P. W. 2) have also stated about the above robbery. Thus, the prosecution has successfully established the guilt of the appellant for the offence punishable under Section 394 I. P. C. ( 43 ) THE appellant was also charged with the offence punishable under Section 376 read with 511 I. P. C. The learned Sessions Judge had also convicted and sentenced the appellant under said Sections. But having gone through the evidence on record, we find that the evidence of the prosecution was to the effect that the appellant caught hold of Smt. Usha Devi and made her fall down. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I. P. C. , we are of the view that conviction of appellant under Section 376/511 I. P. C. is liable to be converted into conviction under Section 354 I. P. C. ( 44 ) THE appellant was also convicted under Section 504 and 506 I. P. C. , but there is no evidence to make out the ingredients of above offences. The actual words used by the appellant while allegedly intimidating have not been stated by the witnesses and therefore, the offences punishable under Sections 504, 506 I. P. C. were not proved. ( 45 ) THE learned Sessions Judge has sentenced the appellant with extreme penalty of death under Section 302 I. P. C. , but having gone through the facts and circumstances of the case we find that there was no evidence on record to prove that the deceased committed pre planned and pre meditated murder of the deceased. On the own showing of the prosecution, the intention of the appellant was to commit rape on the deceased and when he was unsuccessful in his above aim, he inflicted knife blows causing death of the deceased. It was not a case where murder was committed after committing rape. Moreover, the facts and circumstances of the case also reveal that it is not rarest of rare cases and therefore, death penalty in this case was not proper and justified particularly looking to the fact that appellant was a young boy of about 21 years of age on the day of occurrence. In these circumstances, the death sentence under Section 302 I. P. C. is liable to be converted into imprisonment for life. ( 46 ) LEARNED counsel for the appellant contended that the learned Sessions Judge has not complied with provisions of Section 235 (2) Cr. In these circumstances, the death sentence under Section 302 I. P. C. is liable to be converted into imprisonment for life. ( 46 ) LEARNED counsel for the appellant contended that the learned Sessions Judge has not complied with provisions of Section 235 (2) Cr. P. C. and the appellant was not afforded opportunity of hearing before imposing death penalty and that the order of conviction and sentence of death were passed simultaneously on same day, which itself showed that no opportunity of hearing was provided. It was held by the Apex Court in the case of Ram Deo Chauhan @ Raj Nath Chauhan v. State of Assam, 2001 AIR SCW, 2784 that it must be remembered that two alternative sentences alone are permitted for imposition for the offence under S. 302 IPC - imprisonment for life or death. Thus no Court is permitted to award a sentence less than imprisonment for life as for the offence of murder. The normal punishment for the offence is life imprisonment and death penalty is now permitted to be awarded only in the rarest of the rare cases when the lesser alternative is unquestionably foreclosed. The requirement contained in S. 235 (2) of the Code " (the obligation of the Judge to hear the accused on the question of sentence) is intended to achieve a purpose. The said legislative provision is meant for advancing benefit to the convicted person in the matter of sentence. The legal position regarding the necessity to afford opportunity for hearing to the accused on the question of sentence is as follows :- (1) When the conviction is under S. 302 IPC (with or without the aid of S. 34 or 149 or 120b of IPC) if the Sessions Judge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the accused on the question of sentence. S. 235 (2) of the Code will not be violated if the sentence of life imprisonment is awarded for that offence without hearing the accused on the question of sentence. (2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence. (3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and sentence shall also be pronounced on the same day. (2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence. (3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and sentence shall also be pronounced on the same day. (4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge propose to impose death penalty) the proviso to S. 309 (2) is not a bar for affording such time. (5) For any reason the Court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences the convicted person shall be committed to jail till the verdict on the sentence is pronounced. Further detention will depend upon the process of law. ( 47 ) THE judgment of the trial Court shows that appellant, his counsel and State Counsel were heard on quantum of punishment. But it is clear that conviction order and sentences were passed simultaneously. ( 48 ) WE have held that this case is not the rarest of rare cases and in this case lesser alternative is not unquestionably foreclosed. Therefore, pronouncing verdict of guilty and hearing on quantum of sentence on same day loses significance. ( 49 ) WE partly allow the appeal. The conviction and sentence of appellant under Sections 504 and 506 I. P. C. are set aside and the appellant is acquitted of said offences. The conviction of the appellant under Section 376/511 IPC is set aside and instead of it he is convicted under Section 354 I. P. C. and sentenced to undergo R. I. for a period of 11/2 years and to pay fine of Rs. 5,000. 00. Conviction of appellant under Section 394 I. P. C. and sentence of 5 years R. I. and fine of Rs. 5,000. 00 are confirmed. The conviction of the appellant under Section 302 I. P. C. is also confirmed, but sentence of death is converted into imprisonment for life. The sentence of fine of Rs. 10,000. 00 under Section 302 I. P. C. is confirmed. In default of payment of fine, the appellant shall undergo R. I. for a period of one year on each count. The reference made by the learned Sessions Judge is rejected. The sentence of fine of Rs. 10,000. 00 under Section 302 I. P. C. is confirmed. In default of payment of fine, the appellant shall undergo R. I. for a period of one year on each count. The reference made by the learned Sessions Judge is rejected. ( 50 ) THE appellant is in jail and he will serve out the sentences as modified above. . ( 51 ) LET a copy of this order be sent to Chief Judicial Magistrate, Farrukhabad for information and necessary action. Appeal partly allowed.