JUDGMENT - PATEL J.N., J: - In Sessions trial No. 51/2002, the learned Ad hoc Sessions Judge, Washim by his judgment and order dated 19th September, 2003 finding the appellant/accused guilty of having committed an offence punishable under section 302 of the Indian Penal Code, convicted and sentenced him to suffer death by hanging. The learned trial Court having awarded this sentence in the matter also made a reference to this Court for its confirmation. The appellant appealed against his conviction. Therefore, we propose to dispose of this appeal filed by the appellant along with the confirmation case. 2. The facts were these:- The appellant got married to Sarika on 7th April, 2000. Thereafter Sarika the deceased went to cohabit with the appellant/accused at his residence at Nimba. The appellant was earning his livelihood by working as a carpenter as well as cultivation of his agricultural land. As per the custom, deceased Sarika went to her parents house on account of Akhadi festival and thereafter she was brought back by the appellant/accused and his mother. Sarika resided at Nimba for a period of 15 days. Thereafter, it appears that the appellant/accused along with Sarika went to his sister's place at Birsingpur in Madhya Pradesh. On her return she visited her parent's place. During this time, Sarika complained to her mother Mainabai (P.W. 6) that the appellant/accused was ill-treating her and torturing her and used to beat her as he suspected her chastity. Mainabai (P.W. 6) tried to persuade the appellant/accused to treat her well. In the meantime, the appellant /accused got employment in a Wine Bar at Akola. After about 5 to 6 months, Shantabai (P.W. 5) mother of the appellant/accused came to Mainabai's house where Sarika was residing and took Sarika with her. It is the prosecution case that though Sarika was not willing to return to her in-law's place and reside with the appellant/accused, she was persuaded to do so and immediately thereafter when Sarika returned to her in-law's place she was found dead in her matrimonial home. The first person who happened to know this fact was Gajanan Rajaram Kalbande (P.W. 1) who was working as a domestic servant with the appellant/accused. The first person who happened to know this fact was Gajanan Rajaram Kalbande (P.W. 1) who was working as a domestic servant with the appellant/accused. On 20-9-2001 when Gajanan (P.W. 1) returned to the house of the appellant/accused after taking meals, he found nobody was present in the house of the appellant/accused and Sarika was found murdered and her dead body was lying in one room of the house in a pool of blood and her head was severed from the body and few people have gathered in the house of the appellant/accused. From there Gajanan (P.W. 1) went to the house of the Police Patil who took him to Dhanaj Police Station and lodged report (Exh. 18) which came to be treated as F.I.R. (Report Exh. 9). On getting information, Digamber Jairamsing Chavan (P.W. 9), who was at the relevant time attached to Dhanah Police Station, reduced the report given by Gajanan (P.W. 1) into writing and registered an offence punishable under section 302 of the Indian Penal Code against the appellant/accused. He then visited the spot of incident i.e. the house of the accused at village Nimba and prepared the scene of offence panchnama (Exh. 21) in presence of the panchas viz. Anil Alone (P.W. 2) and Sahebrao Sabne (P.W. 3) . He also seized certain articles from the spot vide seizure panchnama Exh. 22 and further prepared inquest panchnama Exh. 23. A.P.I., Chavan (P.W. 9) found the head of the wife of the appellant/accused i.e. Sarika severed from her body. The body of Sarika was lying in the pool of blood and head was lying in the door of the house of the appellant/accused. He also notice blood foot prints in the room of the appellant/accused and blood sprinkled on the wooden stool, plastic bag and floor of the house and few broken pieces of bangles, mangalsutra of Sarika also. After preparing three panchnamas, A.P.I., Chavan (P.W. 9) sent the body of Sarika to the Rural Hospital, Karanja for post-mortem. 3. According to the prosecution, the appellant/accused surrendered himself in the Police Station on the next day morning and therefore, he came to be arrested under the arrest panchnama (Exh. 37). On his arrest, the Investigating Officer seized the clothes of the appellant/accused, which according to him were stained with blood, under the panchnama (Exh. 26). 3. According to the prosecution, the appellant/accused surrendered himself in the Police Station on the next day morning and therefore, he came to be arrested under the arrest panchnama (Exh. 37). On his arrest, the Investigating Officer seized the clothes of the appellant/accused, which according to him were stained with blood, under the panchnama (Exh. 26). During the course of investigation, the appellant/accused volunteered to show the place where "Vasla" has been concealed by him and, therefore, in presence of panchas the police recorded the memorandum panchnama (Exh. 27). Thereafter, the appellant/accused led them to the field of one Sarda on Bhamdevi Dhanaj Road and unearthed Vasla from the standing crop of pegion peas. A.P.I., Chavan, therefore, prepared seizure panchnama (Exh. 28), A.P.I., Chavan also seized sari of mother of the appellant/accused viz . Shantabai which was found stained with blood under seizure panchnama (Exh. 29) and obtained thumb impression of Shantabai on the panchnama. In the course of investigation, he recorded the statement of the witnesses including that of Shantabai (P.W. 5) mother of the appellant/accused, Mainabai Ruikar (P.W. 6), Muktabai (P.W. 7), Dipak Ugle (P.W. 8) and so on. On receipt of ornaments and clothes of Sarika from the Medical Officer through Police Constable Vijay and also viscera in bottle, he seized them from the Police Constable Vijay under the panchnama (Exh. 41) and sent all the articles seized in the investigation of the case to the Chemical Analyser and sent the blood stained Vasla to the Forensic Laboratory for analysis. Then the Investigating Officer also arranged to have the photographs of blood foot prints on the spot, foot impression of the appellant/accused, his mother and father and sent it to forensic laboratory for his opinion. On receipt of the post-mortem report (Exh. 30), C.A. Reports (Exhs. 44 and 45), and on completing the investigation, he filed charge-sheet against the appellant/accused. 4. The appellant/accused was tried on a charge that on 20-9-2001 at village Nimba (Jahangir) within the jurisdiction of Police Station, Dhanaj he committed a murder by intentionally and knowingly causing the death of Sarika w/o Gajanan Ruikar, aged about 25 years and thereby committed an offence punishable under section 302 of the Indian Penal Code. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The defence taken by the appellant/accused during the trial was that of complete denial and has come up with a case that on the day of incident he has left his house to go to village Tarnoli and, therefore, he is totally ignorant of what happened to his wife and how she died. It is the case of the appellant/accused that on coming to know that he is wanted by police he surrendered at the Police Station and came to be arrested. 5. The prosecution in order to prove his case has relied upon the ocular as well as circumstantial evidence and examined about 9 witnesses. The prosecution has also placed reliance on medical and forensic evidence. On conclusion of the trial, the trial Court found that the prosecution has proved that the appellant/accused has committed murder of his wife and that is how the appellant/accused came to be convicted. After hearing the appellant/accused on the point of sentence, the trial Court was of the opinion that as the appellant/accused has chosen the brutal way for killing his wife with whom he enhoued sufficient span of his life and having severed the head of his wife completely from her body, he deserves no leniency and mercy from the Court and deserves to be given capital punishment and sentenced him to death. 6. We propose to deal with the evidence placed on record by the prosecution during the trial and asses the same on the basis of the arguments advanced before us by the learned Counsel for the appellant and learned A.P.P. in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt i.e. the appellant and appellant alone who has committed offence of murder. 7. In this case, the appellant during the trial has admitted the post-mortem report and, therefore, the prosecution did not consider it necessary to examine the Medical Officer who conceded autopsy on the dead body of Sarika. The post-mortem examination report of deceased Sarika is placed on record at Exh. 30. 7. In this case, the appellant during the trial has admitted the post-mortem report and, therefore, the prosecution did not consider it necessary to examine the Medical Officer who conceded autopsy on the dead body of Sarika. The post-mortem examination report of deceased Sarika is placed on record at Exh. 30. As the appellant has not disputed the post-mortem examination report, we have no hesitation to hold that the appellant/accused does not challenge the fact that his wife Sarika died a homicidal death and the observations made by the Medical Officer i.e. Dr. U.U. Jadhav and Dr. C.S. Khatu in the post-mortem report (Exh. 30) which was prepared and is contemporary record of what the Doctor found while conducting the post-mortem examination on the dead body of Sarika w/o Gajanan Ruikar. We find from the observations made against Column 17 of the post-mortem report that the following injuries were noted. i) Neck injuries which is present over the neck. Neck completely excised from the body. ii) Lacerated injuries present over the both sides cheek and injury is about 2 to 4 inches in deep and 4 to 5 inch in length. iii) Lacerated injuries which is with sharp object over the dorsal sided palm region by which the little and ring finger completely excised. iv) Incised injuries (lacerated) in present over the both middle of the scapular region. The injury is about 2 to 3 inches in deep and 5 to 6 inches in length. On internal examination, Doctor found in respect of the head particular skull vault and base describe fractures, their sites, dimensions. directions etc. It has been observed that the base of skull completely excised from body and upper sided skull normal. In respect of the thorax and abdomen and all other contents under the said column as congested. As regards the opinion as to the cause of death, it is observed 'death may occur due to shock mainly by neck injury". 8. It is common experience that in the most of the cases of homicide direct evidence of the most conclusive kind is uncommon. Frequently , however, there are circumstances i.e. occurance surrounding the probable act and more or less connect with which betray the criminal. Same is the case here. 8. It is common experience that in the most of the cases of homicide direct evidence of the most conclusive kind is uncommon. Frequently , however, there are circumstances i.e. occurance surrounding the probable act and more or less connect with which betray the criminal. Same is the case here. According to the prosecution, Shantabai (P.W. 5) the mother of the appellant/accused was probably the sole eye-witness to the incident though it might have been witnessed by the neighbours, but the prosecution did examine her as one of the eye-witness and as expected being mother of the appellant/accused she did not support the prosecution and was declared hostile and, therefore, what we find from the evidence on record is that the prosecution case mostly rests on the circumstantial evidence. Now before we proceed to examine the case further and particularly the circumstances on the basis of which the prosecution claims to have proved the case, let us reiterate the settled proposition of law under which the Court should normally appreciate circumstantial evidence i.e. firstly the circumstances from which conclusion is drawn should be fully proved, secondly the circumstances should be conclusive in nature and thirdly all the facts so established should be consistent only with hypothesis of guilt and inconsistent with innocence and fourthly the circumstance should to moral certainty excludes possibility of guilt by any other than the accused. 9. In this case the circumstances which emerged against the appellant/accused and on which the prosecution relies to prove its case are; i) motive, ii) last seen together, iii) Sarika being found dead in the house of the appellant/accused; iv) abscondance of the appellant/accused immediately after the commission of the offence and his explanation by pleading alibi after the commission of the offence then search and seizure made by the prosecution during the course of investigation, the forensic and medical report. 10. We now propose to deal with the circumstances in reference to the evidence led by the prosecution to prove each of the circumstances. 11. MOTIVE The only evidence brought on record to establish that the appellant/accused had a strong motive to commit murder of his wife Sarika, is the evidence of Mainabai w/o Ambada Paturkar (P.W. 6) mother of Sarika. It is submitted by Mr. 11. MOTIVE The only evidence brought on record to establish that the appellant/accused had a strong motive to commit murder of his wife Sarika, is the evidence of Mainabai w/o Ambada Paturkar (P.W. 6) mother of Sarika. It is submitted by Mr. R.A. Khan, the learned Counsel appearing for the appellant/accused that the evidence of Mainabai will have to be examined with the requisite care and caution by the Court as she is a highly interested witness and, therefore, there is all possibility that the evidence given by her before the Court was to see that the appellant/accused get convicted. Mr. Khan further submitted that her evidence in unreliable also for the reasons that it is full of material omissions and contradictions in so far as attributing the motive to the appellant/accused is concerned and, therefore, her evidence will have to be discarded from consideration. 12. On the other hand the learned A.P.P. submits that Mainabai (P.W. 6) thought can be called as an interested witness being mother of the deceased but that by itself is not sufficient to discard her evidence. It is submitted that she has given evidence of facts within her knowledge and in a natural manner. Mr. S.G. Loney, the learned A.P.P. has further impressed upon us that Mainabai (P.W. 6) is a rustic villager and merely because she has used certain words before the Court while deposing cannot by itself be considered as material omissions. It is submitted that the Court may also consider that it is not expected of the witness to use the same words in evidence but if the evidence is such that sufficiently brings out the meaning then there is no question of suspecting the credibility of the witness. According to the learned A.P.P. there is no improvement made by Mainabai and her evidence can be safely relied upon. 13. The evidence of Mainabai is particularly assailed by the learned Counsel for the appellant/accused on the use of the words that her daughter Sarika told that accused was subjecting her to tremendous ill-treatment and torture and there is improvement to the effect that he used to beat her and suspect her chastity. 13. The evidence of Mainabai is particularly assailed by the learned Counsel for the appellant/accused on the use of the words that her daughter Sarika told that accused was subjecting her to tremendous ill-treatment and torture and there is improvement to the effect that he used to beat her and suspect her chastity. Well, in order to appreciate the rival contention, we have referred the statement of Mainabai recorded by the police under section 161 of the Criminal Procedure Code as to whether Mainabai has improved her case before the Court and there is material omission in her statement made to the police which facts she has deposed before the Court and we find that it is not so. The sum and substance of her statement recorded by the police is the same which she deposed before the Court and has rightly pointed out by the learned A.P.P. that there is no cross-examination on the point that the appellant/accused used to beat her and suspect her chastity. It appears that during the trial the learned A.P.P. nor the learned Ad hoc Sessions Judge took necessary precaution to cross check with the statement of the witnesses recorded by the police under section 161 of the Cri.P.C. When it was pointed out in the cross-examination she stated that she cannot assign any reason as to why it does not find place in the statement which was in context that the accused used to ill-treat and torture her daughter and her daughter had reported her to that effect which is very much there in the statement recorded under section 161 of Cri.P.C. There are certain minor contradictions which we do not think affect the credibility of this witness. In the given facts and circumstances of the case, Mainabai (P.W. 6) is the best witness who could have deposed as to how Sarika was treated by her husband at her in-law's place. Mainabai (P.W. 6) will not unnecessarily rope in the appellant/accused. It is but natural for the daughter to confide in her mother and narrate about the treatment she received at the hands of her husband or in-laws and, therefore, according to us the evidence of Mainabai to the effect that she suffered ill-treatment and torture at the hands of her husband who used to beat her as he used to suspect her chastity is reliable. In our opinion, this is a very strong motive for the husband to commit murder of his wife whose chastity was suspected by him and, therefore, we find from the evidence of Mainabai (P.W. 6) that the prosecution has been able to establish that the appellant/accused had a strong motive to cause harm to his wife as he suspected her fidelity. 14. LAST SEEN TOGETHER : On the point of last seen together, the prosecution has examined Gajanan Kalbande (P.W. 1) domestic servant of the appellant/accused who is also a person who had lodged F.I.R. (Exh. 18) and Shantabai (P.W. 5) mother of the appellant/accused. Mr. R.A. Khan, the learned Counsel appearing for the appellant/accused submitted that these two witnesses are of no use to the prosecution as they have not supported the prosecution and the prosecution has also sought to declare them as hostile witness. Mr. S.G. Loney, the learned A.P.P. submitted that merely because the witness viz. Gajanan (P.W. 1) and Shantabai (P.W. 5) did not fully support the prosecution, their evidence cannot be completely ignored. Mr. S.G. Loney, the learned A.P.P. submitted that the hostile witness does not loose his credibility and the Court would have to examine the entire evidence of such hostile witness and may rely upon the acceptable part. Mr. Loney submitted that the evidence of the hostile witness does not loose its evidential value but the Court may have its own assessment. 15. In so far as Gajanan (P.W. 1) is concerned, we find that it is not disputed that he was a domestic servant working with the appellant/accused and on the day of incident i.e. 20-9-2001 he was in the employment of the accused. In his evidence before the Court he has stated that at 11 a.m. he returned back to the accused after working in his field and he saw the accused and his wife both were present in the house. The accused then asked him to come after having meals. Accordingly, at 2.30 p.m. when he came back to the house of the accused after taking meals, he found nobody was present in the house of the accused except that the dead body of Sarika was lying in a pool of blood and her head was severed from body. The accused then asked him to come after having meals. Accordingly, at 2.30 p.m. when he came back to the house of the accused after taking meals, he found nobody was present in the house of the accused except that the dead body of Sarika was lying in a pool of blood and her head was severed from body. This fact that the appellant/accused was present with his wife in the house when Gajanan (P.W. 1) returned from the field and was told by the appellant/accused to come back after having meals is supported by the evidence of Shantabai. It has come in the evidence of Shantabai (P .W. 5) that they all had meals with Sarika and Shantabai (P.W. 5) and then according to her she left the house. According to her at the time Sarika died at their house she was working in the field. The evidence of Gajanan (P.W. 1) and Shantabai (P.W. 5) mother of the accused on this point the appellant/accused and Sarika were last seen together is not challenged by the defence. This fact stated by Gajanan (P.W. 1) is also corroborated by the report lodged by him which is at Exh. 18 and, therefore, we find that this evidence can be safely relied upon to come to the conclusion that the appellant/accused and the deceased were last seen together in their own house which was occupied by no one else except for his parent i.e. father of the appellant/accused and his mother i.e. Shantabai (P.W. 5). In our opinion, though these two witnesses viz. Gajanan (P.W. 1) and Shantabai (P.W. 5) have not whole heartedly supported the prosecution case there is no reason to disbelieve them on this count. The appellant/accused when examined under section 313 of Cri.P.C. by this Court on this point also admitted this to be true and, therefore, we find that the prosecution has proved that the appellant/accused and his wife were together in the house and had meals together along with Shantabai (P.W. 5) immediately before she was done to death. 16. The fact that deceased Sarika was found dead in the house of the appellant/accused does not appear to be much disputed though the appellant/accused has expressed his ignorance about this fact. 16. The fact that deceased Sarika was found dead in the house of the appellant/accused does not appear to be much disputed though the appellant/accused has expressed his ignorance about this fact. In order to establish this circumstance the prosecution has examined Gajanan (P.W. 1) who was deposed before the Court that when he came back on the day of incident i.e. 20-9-2001 at about 2.30 p.m. after taking meals, nobody was present in the house of the appellant/accused that time. Wife of the accused was murdered. Her dead body was lying in one room of the accused in a pool of blood. Her head was severed from her body and few people had gathered in the house of the accused and thereafter he went to the house of the Police Patil. who took him to Dhanaj Police Station where he lodged First Information Report (Exh. 18) which bears his signature. This fact is not at all challenged by the defence. Mr. Khan, the learned Counsel appearing for the appellant/accused also did not dispute that the dead body of Sarika was lying in the house of the appellant/accused with her head severed from the body. This is also stated by Shantabai (P.W. 5) though in a very cryptic manner. That Shantabai was working in the field when Sarika died at home. Though according to the prosecution Shantabai (P.W. 5) the mother of the appellant/accused is an eye-witness to the incident she has not supported the prosecution on this count and for the obvious reason she being mother of the accused. However, Mainabai (P.W. 6) the mother of deceased Sarika also in her evidence before the Court has stated that when the learnt about the murder of Sarika, she went to the matrimonial home of Sarika and saw Sarika lying in the house of the accused in a beheaded condition. Not only that but when A. P. I., Chavan (P.W. 9) on receiving F.I.R. (Exh. 18/19) visited the spot, he also saw Sarika lying dead in a pool of blood and that her head was severed from the body which fact has been recorded in presence of the panchas in the spot panchnama (Exh. 21) and Inquest panchnama (Exh. 20). Unfortunately, the two independent panchas viz. Anil (P.W. 2) and Sahebrao (P.W. 3) did not support the prosecution case. But this does not in any manner affect the prosecution case. 21) and Inquest panchnama (Exh. 20). Unfortunately, the two independent panchas viz. Anil (P.W. 2) and Sahebrao (P.W. 3) did not support the prosecution case. But this does not in any manner affect the prosecution case. Therefore, this circumstances also stands proved by the prosecution. 17. Before we proceed to examine the circumstance of abscondance and plausible explanation offered by the appellant/accused of alibi of having gone to village Tarnoli, we would like to first deal with the various search and seizures conducted during the course of investigation and particularly regarding recovery of Vasla. Mr. Khan, the learned Counsel appearing for the appellant/accused submitted that the recovery of Vasla (Article B) is foisted on the appellant/accused and is contrary to the evidence on record and, therefore, it cannot be accepted. Mr. Khan pointed out to us that the prosecution tried its best to prove that they were able to discover Vasla at the instance of the appellant/accused under section 27 of the Evidence Act but this discovery and seizure of Vasla cannot be relied upon. Mr. Khan has submitted that the panch Harun Motlani (P.W. 4) has not supported the prosecution case on the point of seizure and even Gajanan (P.W. 1) in his evidence stated that the alleged Vasla was seen lying in the house stained with blood. Police tied few tools of carpentry and Vasla in a gunny bag and they took the gunny bag in the Police Station. Therefore, according to the learned Counsel if Vasla was seized by the Police from the scene of offence, how it could be discovered at the behest of the appellant/accused. It is further pointed out to us by Mr. Khan, the learned Counsel appearing on behalf of the appellant/accused that the other evidence led by the prosecution that even the prosecution witness Muktabai Raut (P.W. 7) did not support the prosecution case and, therefore, in the absence of any independent witness, it would be most unsafe to rely upon the evidence of the Investigating Officer. It is true that on the point of discovery, there is no independent evidence to support the prosecution case as the very panch before him the memorandum of the statement of the appellant/accused came to be recorded, has turned hostile but we do not find any reason why to disbelieve the evidence of A.P.I., Chavan (P.W. 9) on this point. It is true that on the point of discovery, there is no independent evidence to support the prosecution case as the very panch before him the memorandum of the statement of the appellant/accused came to be recorded, has turned hostile but we do not find any reason why to disbelieve the evidence of A.P.I., Chavan (P.W. 9) on this point. A.P.I., Chavan (P.W. 9) in his deposition before the Court has stated that during the investigation the appellant/accused agreed to discover 'Vasla' by means of which he has committed murder of his wife. While the portion of the statement made by the appellant/accused to the extent that he has agreed to discover Vasal can be held to be admissible but the later part by means of which he has committed murder of his wife has to be ignored. It has come in the evidence of A. P. I., Chavan (P.W. 9) that though the said memorandum (Exh. 27) came to be prepared in presence of two panchas which bears his signature and signatures of the panchas and accused. Thereafter, the accused led the police and panchas in the field of Sarda on Bhamdevi Dhanaj road and he unearthed the Vasla from the standing crop Pegion peas. It was stained with blood. The corresponding seizure panchnama (Exh. 28) bears his signature, signatures of the panchas as well as the accused. Though the evidence on discovery of the weapon of an assault is a weak link in the chain of circumstances nonetheless it can be considered by the Court. In order to corroborate the prosecution case his Vasla (article B) was sent to the Chemical Analyser for his report. In C.A. Report (Exh. 44) it is shown that the Vasla (article B) is stained with human blood. Further, it cannot be ignored that the appellant-accused is a carpenter and "Vasla" is one of the instruments tools used in carpentry and this instrument is capable of severing the head of a person. As we have already made it clear that this by itself may not be sufficient to establish the guilt against the appellant-accused but it does lends assurance to the prosecution case that the victim was done to death and head was severed from the dead body in all probability by the Vasla. 18. In respect of the other search and seizure particularly the Sari (Exh. 18. In respect of the other search and seizure particularly the Sari (Exh. 29) allegedly that of Shantabai (P.W. 5) the same was also sent for chemical analysis and it was found to be stained with human blood. This does not in any manner further the prosecution case as Shantabai has not supported the prosecution. 19. Mr. Khan, the learned Counsel appearing for the appellant/accused vehemently argued the manner in which A.P.I. Chavan (P.W. 9) conducted the investigation particularly the delay in sending the articles seized during the course of investigation to the forensic laboratory. Well the defence has failed to cross-examine A.P.I. Chavan (P.W. 9) on this aspect nor the prosecution has offered any explanation and, therefore, it will be very difficult to draw adverse inference in the matter but the fact remains that the articles seized from the scene of offence and the Vasla recovered at the instance of the appellant-accused were sent to the forensic laboratory. So far as the articles seized from the dead body of the victim Sarika are concerned, they were found stained with blood of group B which is that of the deceased. Another aspect which we may deal with before going to last circumstance is with regard to the injury found on the appellant/accused is concerned though in the arrest panchnama (Exh. 3) it has been recorded that the appellant-accused had injury on the index finger of the left hand caused at the time of commission of offence, the Investigation Officer failed to send the appellant- accused for medial examination. This lapse on the part of the Investigation Officer has resulted in a valuable piece of evidence being lost. The defence has taken necessary precaution which we find from the evidence of Gajanan (P. W. 1) who was working as a domestic servant with the appellant/accused as in his cross-examination he has volunteered this information by stating that it is true that one day prior to the incident the accused has sustained cut injuries to his finger while working in the field. There was no cloth in the field to tie on his injury. His injury was profusely bleeding. His shirt and fullpant were smeared with blood. Probably these questions were asked to cover up explanation for the injuries sustained by the appellant/accused to his index finger as noticed in the arrest panchnama and blood stained on his clothes. There was no cloth in the field to tie on his injury. His injury was profusely bleeding. His shirt and fullpant were smeared with blood. Probably these questions were asked to cover up explanation for the injuries sustained by the appellant/accused to his index finger as noticed in the arrest panchnama and blood stained on his clothes. Unfortunately, when the appellant/accused came to be arrested, his clothes were not found stained with blood which admission had been given by the Investigation Officer P.W. 9 A.P.I., Chavan. In his cross-examination, A.P.I., Chavan is also not very sure about the seizure of blood stained clothes which were brought from the house of the appellant/accused which even Gajanan (P. W. 1) confirms in his evidence and, therefore, this, in our opinion, does not help the prosecution to further their case. 20. Now let us examine the last link in the chain of circumstances i.e. absondance of the accused and plea of alibi. Mr. Khan, the learned Counsel appearing for the appellant/accused submitted that the appellant-accused has not taken any plea of alibi nor the prosecution has been able to establish that he was arrested from the scene of offence. On the other hand, it has come in the evidence of Gajanan (P.W. 1) and even stated so by A.P.I., Chavan (P.W. 9) that the appellant/accused on his own surrendered at the Police Station when he came to know that he is wanted by police who were suspecting him for having committed the murder of his wife Sarika. According to Mr. Khan, this rather goes to show innocence of the appellant/accused. 21. On the other hand, Mr. S.G. Loney, the learned A.P.P. submits that the appellants/accused has failed to offer any plausible explanation as regards his whereabouts from the moment he left the house till he surrendered at the Police Station. According to Mr. S.G. Loney the learned A.P.P. this fact is enough to draw inference that the appellant/accused after committing heinous crime absconded from the scene of offence and when he found it difficult to keep away surrendered himself at the Police Station in the early hours of the next day. According to Mr. S.G. Loney, the learned A.P.P. in normal course the appellant/accused could have very well explained that how he came to know that his wife was found killed and what steps he took on coming to know about the same. According to Mr. S.G. Loney, the learned A.P.P. in normal course the appellant/accused could have very well explained that how he came to know that his wife was found killed and what steps he took on coming to know about the same. On the other hand, Gajanan (P.W. 1) in the report lodged by him to the Police Station has clearly expressed his suspicion that it is his master i.e. appellant/accused who has killed his wife and he wants action against him. But, during the trial he turned hostile and has been won over by the defence and it is thorough Gajanan (P.W. 1) that the appellant/accused has brought explanation on record that the appellant/accused contacted Gajanan (P.W. 1) at about 3.00 a.m. in the morning and asked him to accompany to the Police Station as he wanted to surrender. According to the learned A.P.P. this speaks volume of the complicity of the appellant/accused and conduct of a guilty person. 22. In so far as the submission of Mr. Khan, the learned Counsel appearing on behalf of the appellant/accused that the appellant/accused has not taken a plea of alibi is concerned, that does not appear to be true. In addition to the evidence on record that the appellant/accused, his mother and victim Sarika were together in the house immediately proceeding the homicide is not disputed even by the appellant/accused in his examination under section 313 of Cri.P.C. On the other hand when this Court questioned him as to do you want to say anything else, he has stated that he took his meal at 11.00 a.m. and left for village Tarnoli and he does not know what happened. There is a specific plea taken by the appellant/accused that he has gone to village Tarnoli. If that is so, then having taken such a plea that the time in question i.e. when Sarika came to be murdered, the appellant/accused was elsewhere, the onus would shift on the appellant/accused to prove it. It was the appellant/accused who wants the Court to believe the fact that he was not there at the time of commission of offence and, therefore, burden is cast on the appellant/accused to establish the plea of alibi, as it is within the exclusive knowledge of the appellant/accused as to where he was at the relevant time. It was the appellant/accused who wants the Court to believe the fact that he was not there at the time of commission of offence and, therefore, burden is cast on the appellant/accused to establish the plea of alibi, as it is within the exclusive knowledge of the appellant/accused as to where he was at the relevant time. The fact which emerges from the evidence on record is that when Gajanan (P.W. 1) returned to the house of the appellant/accused at 2.30 p.m. he did not find any one in the house except the dead body of Sarika. So far as Shantabai (P.W. 5) is concerned, according to her, she was working in the field. We do not know where was the father of the appellant/accused. So far as the appellant/accused is concerned, he was found present in the house not only by Gajanan (P.W. 1) but even Shantabai (P.W. 5) his own mother states that they all had meals together i.e. appellant, his wife Sarika and Shantabai and thereafter Shantabai left and, therefore, it was only appellant/accused and deceased Sarika who were left in the house and if the appellant/accused who is facing the charge of committing murder of his wife comes up with the case that at the relevant time he had gone to village Tarnoli he should have offered plausible explanation as to where was he and when he came to know that his wife has been killed and in the early hours of the next day to contact Gajanan (P.W. 1) and go to the Police Station. What we find in the present set of facts which have been established by the prosecution that this appellant/accused had strong motive to commit murder of his wife as he suspected her character, secondly he had opportunity to commit the crime and it is further established the circumstances that both were last seen together then the victim being found dead in the house of the appellant/accused and the recovery of Vasla the weapon of assault at the instance of the appellant/accused are such established circumstances against the appellant/accused and if no specific explanation is forthcoming on behalf of the appellant/accused we have no hesitation to hold that the chain of circumstance is complete as possibility of any other person being a real culprit stands excluded. Therefore, what we find is this false explanation or false plea taken by the accused can be used as an additional link in the chain of circumstance satisfactorily. The said circumstance is in proximity to the time situation as can be seen from the evidence of Gajanan (P.W. 1), and Shantabai (P.W. 5). The prosecution did examine Dipak (P.W. 8) on this point but he did not support the prosecution case. Therefore, in our judgment for these reasons without hesitation we have reached the conclusion that it is the appellant/accused alone who has committed the offence and has been rightly found guilty of having committed murder of his wife. 23. Having found the appellant/accused guilty of having committed murder of his wife Sarika, we now take up the confirmation case for our consideration. The trial Court after arriving at a finding that the prosecution has proved the case against the accused beyond reasonable doubt and accused deserves to be convicted, accordingly proceeded to question the appellant/accused on the point of sentence. As we have already observed in the earlier part of our judgment, the trial Court did not weigh pros and cons of the case so as to come to a conclusion as to what would be appropriate sentence in the given facts and circumstances. It is now well settled that though the capital punishment has to be awarded in the rarest of the rare cases, yet the Supreme Court held in no uncertain terms that capital punishment is legal and does not violate Articles 14, 19 and 21 of the Constitution of India as held in (Bachan Singh's)1, 1980 Criminal Law Journal (S.C.)636. Section 354(3) of Cri.P.C. 1973 provides that sentence other than death is the general rule. Only for special reasons which are required to be stated death sentence is permissible. It is also well settled that it is not possible to catalogue the special reasons which may justify the passing of the death sentence, but just a few may be indicated, such as, the crime has been committed by a professional or hardened criminal or it has been committed in a brutal manner or on a helpless child or woman or the like. To rely on absence of extenuating circumstances to justify a sentence other than death sentence since 1st April, 1974 is not justified (Balwant Singh v. State of Punjab)2, A.I.R. 1976 S.C. 230, and, therefore, according to the new Code, imprisonment for life is a rule and death sentence is an exception in the matter of awarding punishment for murder. Mr. S.G. Loney, the learned A.P.P. appearing for the State submitted that this is a fit case where this Court should confirm the death sentence awarded by the trial Court. According to Mr. S.G. Loney, the learned A.P.P. in all such cases where crime has been committed in a brutal manner and is in nature of cold blooded murder which is diabolic in nature there is no reason why the capital punishment should not be imposed and this is what weighed in the mind of the trial Court. According to Mr. Loney, this a case which can be well said to be cold blooded murder committed by premeditation with total derivity which has been committed in extremely brutal and diabolic manner not only the helpless woman was subjected to suffer by causing her multiple injuries but the appellant/accused did not show any mercy and used tool like Vasla as a weapon of assault on his own wife which seeks shelter and protection from him and did not stop it on killing her but severed her head from the body. This indicate that there is no hope for reformation. Mr. Loney, the learned A.P.P. has also placed reliance on the Text Book Russel on crime and particularly in reference to Chapter 29 of Murder at page 529 Volume I, 25th Edition, nature of provocation considering it as aggregating circumstances and that such diabolic murder is committed merely on the basis of suspicion then the accused should be dealt with severally. Mr. Loney in support of his contention has relied on the case of (Nidhan Sing v. State of Rajasthan)3, 1970(1) S.C.C. 432 , (Ghgasita @ Ghasi Ram v. State of U.P.)4, reported in 1973(3) S.C.C. 688 which are the cases where the assailant has severed the head of the victim and the Supreme Court found death sentence was justified. Mr. Mr. Loney in support of his contention has relied on the case of (Nidhan Sing v. State of Rajasthan)3, 1970(1) S.C.C. 432 , (Ghgasita @ Ghasi Ram v. State of U.P.)4, reported in 1973(3) S.C.C. 688 which are the cases where the assailant has severed the head of the victim and the Supreme Court found death sentence was justified. Mr. Loney, has also placed reliance on the case of (Bheru Singh v. State of Rajasthan)5, reported in 1994(2) S.C.C. 467 on the case of (State of Rajasthan v. Kheraj Ram)6, reported in 2003(8) S.C.C. 224 and on the case of (Dayanidhi Bisoi v. State of Orrisa)7, reported in 2003(9) S.C.C. 310 , and strongly canvassed for confirmation of sentence of death. 24. Mr. R.A. Khan, the learned Counsel for the appellant has pleaded for mercy. He submitted that it is not the prosecution case that the appellant/accused is a dangerous person and his very existence and survival in the society would not be safe. It is submitted that the appellant/accused is a rustic villager who happened to commit murder of his wife merely on the basis of suspicion or one does not know the reason. It is submitted by Mr. Khan that the appellant/accused still pleads his innocence but if the Court confirms the findings of guilt and is considering the sentence to be imposed, this Court may take into consideration the case of (Subhash Ramkumar Bind @ Vakil v. State of Maharashtra)8, reported in 2003 Bom.C.R.(Cri.) (S.C.)1219. Mr. Khan also placed reliance on the case of (Amit alias Ammu v. State of Maharashtra)9, reported in 2004(1) Bom.C.R.(Cri.) (S.C.)580. According to Mr. Khan, if the Court comes to the conclusion that the appellant/accused is grave danger to the society and there is no hope of reforming then probably the capital punishment can be justified but no such evidence is brought on record. In support of his contention Mr. Khan has also placed reliance on the case of (Bantu v. State of M.P.)10, reported in A.I.R. 2002 S.C. 70 and on the case of (Raju v. State of Haryana)11, reported in A.I.R. 2001 S.C. 2043. 25. The learned Ad hoc Sessions Judge has justified the capital punishment to the appellant/accused considering the nature and gravity of the offence that the accused murdered his wife by inflicting several blows of weapon on her person. 25. The learned Ad hoc Sessions Judge has justified the capital punishment to the appellant/accused considering the nature and gravity of the offence that the accused murdered his wife by inflicting several blows of weapon on her person. According to the learned trial Court there are many ways to kill a rival but the accused has chosen brutal way for killing his wife with whom he enjoyed sufficient span of his life and severed head of his wife completely from her body. Brutality of the offence can be imagined from all these circumstances and hence the accused is not entitled for any leniency and mercy from the Court and, therefore, he be hanged till death. 26. In our opinion, the approach of the learned trial Court was totally erroneous. The learned trial Judge ought to have kept in mind that the principle of proportion between the crime and punishment. As the proportion between crime and punishment is a goal respected in principle and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of tolerance that is unwarranted and unwise. But, in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. Sushil Murmu's case, (cited supra). The learned trial Judge ought to have considered salient feature spelt out by the Supreme Court in Bachan Singh's case and Machhi Singh's case where the guidelines have been set in by the Supreme Court which has to be kept in mind while considering whether the case belongs to the rarest of the rare category. In the present case what we find is that the learned trial Court did not feel it proper to examine as to whether the case of the appellant would fall within the category of rarest of the rare cases by following that guidelines which emerge from these two celebrated cases. We do not propose to elaborate those guidelines in the matter as in our opinion, the present case does not fall in the category of rarest of the rare cases. Merely committing an offence in brutal manner by itself would not be sufficient to invite death penalty. We do not propose to elaborate those guidelines in the matter as in our opinion, the present case does not fall in the category of rarest of the rare cases. Merely committing an offence in brutal manner by itself would not be sufficient to invite death penalty. Here the appellant/accused who is a carpenter and agriculturist, was driven by strong motive to commit murder of his wife and that is suspecting her chastity and it is for this sole reason that he has ill-treated and tortured her. He used to beat her as he suspected her character. We may refer to a decision which is rendered by the Supreme Court in the case (Sardar)12, reported in 2004(2) S.C.C. 440 which is almost based on similar facts. In the case of Sardar the Supreme Court after examining the case though found the accused guilty on the basis of the circumstantial evidence the question to which the Supreme Court addressed itself was whether imposition of death penalty by the High Court was proper and they thought it could not be so. It has been observed that the brutality in taking away life of the victim is only one of the fact which is required to be taken into consideration for coming to the conclusions that the case in hand is one of the rarest of the rare cases warranting imposition of death penalty. Imposition of punishment for life, as is very settled, is the rule. Awarding death sentence is an exception and altered the sentence imposed by the High Court from death penalty to one for imprisonment for life and further imposition a fine of Rs. 1000/- in default the appellant shall suffer simple imprisonment for one month. 27. The First Information Report (Exh. 19) which is placed on record also goes to show that except for the manner in which the offence is committed by the appellant/accused i.e. killing his wife by severing her head from the body by Vasla, there is no criminal antecedent to the discredit of the appellant/accused. In the arrest panchnama (Exh. 37) it has been mentioned in Column No. 11 which provides socio economic profile of the accused showing that he is living with his family in pucca house; Education qualification 12th science, occupation : cultivation: Income group: Middle Income from Rs. 1001 to Rs. 2000. In the arrest panchnama (Exh. 37) it has been mentioned in Column No. 11 which provides socio economic profile of the accused showing that he is living with his family in pucca house; Education qualification 12th science, occupation : cultivation: Income group: Middle Income from Rs. 1001 to Rs. 2000. Item No. 12 is in respect whether the accused person, as per the observations and known police records, is dangerous. It is mentioned No; previously escaped any bail? No; Is generally armed? --No, has past criminal record? -No; Is recidicist -No; If released on bail, likely to commit crime or threaten victims/witnesses?- No; Is wanted in any other case? -No. If this is the profile of the appellant/accused, we do not find that the appellant/accused is a dangerous person and is a threat to the society and beyond reformation. Therefore, we find that the death sentence awarded to the appellant/accused deserves to be set aside. 28. We, therefore, dismiss the appeal filed by the appellant/accused in so far as he has been found guilty of having committed murder of his wife Sau. Sarika and alter the sentence imposed by the trial Court from death penalty to one of imprisonment for life and further impose a fine of Rs. 1000/- in default the appellant/accused shall suffer simple imprisonment for one month. The appeal and confirmation case stand disposed of accordingly. 29. The certified copy of the judgement after the same is transcribed and signed by us be furnished to the appellant/accused free of costs through Superintendent of Jail, Central Prison, Nagpur. Order accordingly. -----