AMIT TALUKDAR, J. ( 1 ) FAST Track, Fifth Court, Malda in Sessions Trial No. 6 (4)05 by its Judgment and Order dated 6. 10. 2005 found that the Charge in respect of the offence of Section (A) 302/34 of the Indian Penal Code and (B) 201/34 of the Indian Pepal Code has been successfully brought home against the accused: Chandana Mondal (Appellant in Criminal Appeal No. 57 of 2006), nirmal Sarkar ( Appellant in Criminal Appeal No. 801 of 2005) and Chandu yadav (Appellant in Criminal Appeal No. 99 of 2006) and hence convicted each of the above Appellants accordingly. ( 2 ) UPON recording the order of conviction, which is under Appeal, the learned Fast Tract, Fifth Court sentenced the Appellants Nirmal Sarkar (hereinafter referred to as "a2") and Chandu Yadav (hereinafter referred to as "a3") to suffer imprisonment for life and to pay a fine of Rs. 5,000/-; in default, to undergo a further period of Rigorous Imprisonment for two years in respect of the Charge of Section 302/34 of the Indian Penal Code. Both A2 and A3 were also found guilty in respect of the Charge of Section 201/34 of the Indian penal Code and each of them were sentenced to suffer Rigorous Imprisonment for seven (7) years and to pay a fine of Rs. 3,000/- each ; in default, to suffer further Rigorous Imprisonment for one year. ( 3 ) THE Appellant - Chandana Mondal (hereinafter referred to "a1")was sentenced to DEATH after she was found guilty in respect of the Charge of Section 302/34 of the Indian Penal Code and was also sentenced to suffer rigorous Imprisonment for seven (7) years and to pay a fine of Rs. 2,000/-; in default, to undergo further period of one year for the Charge of Section 201/34 of the Indian Penal Code. 2. BEFORE THIS COURT : ( 4 ) HENCE Criminal Appeal No. 57 of 2006 at the behest of Chandana mondal, who had preferred her Appeal from Jail under Section 383 of the code of Criminal Procedure (for short, the said Code ). DEATH REFERENCE no. 6 OF 2005 followed as a consequence. While Nirmal Sarkar and Chandu yadav assailing their conviction and sentence preferred two separate Appeals, being CRA No. 801 of 2005 and CRA No. 99 of 2006 respectively. 3. INVESTIGATION : f. I. R. : ( 5 ) A Written Complaint (Ext. DEATH REFERENCE no. 6 OF 2005 followed as a consequence. While Nirmal Sarkar and Chandu yadav assailing their conviction and sentence preferred two separate Appeals, being CRA No. 801 of 2005 and CRA No. 99 of 2006 respectively. 3. INVESTIGATION : f. I. R. : ( 5 ) A Written Complaint (Ext. 1) filed by Madan Mondal (P. W. 1), Elder brother of the deceased Jiban Mondal being scribed by P. W. 16, Jewel Roy was treated as a formal FIR (Ext. 5) by P. W. 9, Anil Kumar Roy, Sub-Inspector of Police attached to Gazole Police Station. In the First Information Report the de Facto /complainant stated that his younger brother Jiban Mondai and his wife (A1) and their two sons - Amit and Anup (P. W. 2 and P. W. 3) were residing at somlidanga Bahadurpur under Gazole Police Station for last five years. On 20. 4. 2003 in the noon he came to know from his nephew (P. W. 2) who was in the house of his sister (P. W. 15) that on 15. 4. 2003 at about 10. 00 p. m. in the night A2 and A3 cut the throat of his younger brother Jiban Mondal in association with A1 in the Varandah of the kitchen of their residential house and after jiban was murdered A2 and A3 carried his dead body on a Van (Mat. Ext. II)towards Kistopur. He also disclosed that he came to learn from his nephew that there was a long relationship between A1 and A2. GENERAL DIARY: ( 6 ) GENERAL Diary No. 1106 dated 21. 4. 03 at about 10. 30 hours. It was lodged by A1 before the Gazole Police Station inter alia showing that her husband Jiban was missing from 23. 00 hours of 14. 4. 03 and she intended to inform the Police about the fact of such missing of her husband. P. W. 7, Sujit kumar Mandal, Sub-Inspector of Police attached to the Gazole Police Station diarised the same which was marked as Ext. 3. ( 7 ) G. D. Entry No. 1117 dated 21. 4. 2003 at about 14. 35 hours. 4. 03 and she intended to inform the Police about the fact of such missing of her husband. P. W. 7, Sujit kumar Mandal, Sub-Inspector of Police attached to the Gazole Police Station diarised the same which was marked as Ext. 3. ( 7 ) G. D. Entry No. 1117 dated 21. 4. 2003 at about 14. 35 hours. The same was written by P. W. 7, who received the telephonic information from the gazole Exchange that a jute sack was found in a septic tank and it emanated a smell which gave rise to the suspicion that there may be a dead body inside. Accordingly, P. W. 7 diarised the same (Ext. 3/1) and informed the O. C. , Anil kumar Roy, Sub-Inspector of Police (P. W. 9 ). ARREST OF A1 : ( 8 ) P. W. 19, Subir Karmakar took up the Investigation and after visiting the place of occurrence recorded the Statements of the witnesses available and secured the arrest of A1 on 21. 4. 2003 from her house. Thereafter, he received an information about the recovery of a dead body in the septic tank of kistopur Telephone Exchange. SEIZURE LISTS : ext. 4/4 ( 9 ) ON 21. 4. 2003 at about 17. 45 hours from Amlidanga Maa Tara Saw mill. P. W. 19 thereafter seized the Van (Mat. Ext. II) on which the dead body of deceased Jiban was carried by A2 and A3 from the said Saw Mill and it was given in Zimma in favour of the owner (P. W. 12) of the Saw Mill in presence of p. W. 13 and P. W. 14 employees of the said Mill. Ext. 4/1 ( 10 ) ON 23. 4. 03 at about 18. 05 hours at Gazole Police Station in presence of P. W. 10 constable Mritunjoy Biswas and P. W. 18 Aniruddha goswami, Sub-Inspector of Police attached to the Gazole Police Station a half pant and a gunny bag were seized by P. W. 9, which were marked as Mat. Exts. Ill and IV respectively. Ext. 4/2: ( 11 ) EFFECTED on 19. 6. 2003 at about 03. 45 hours in the garden of A2. At his instance a knife (Mat. Ext. I) was recovered by P. W. 19, Subir Karmakar the Investigating Officer in presence of the N. V. F. Constable Dhananjoy Ch. Exts. Ill and IV respectively. Ext. 4/2: ( 11 ) EFFECTED on 19. 6. 2003 at about 03. 45 hours in the garden of A2. At his instance a knife (Mat. Ext. I) was recovered by P. W. 19, Subir Karmakar the Investigating Officer in presence of the N. V. F. Constable Dhananjoy Ch. Mondal (P. W. 8) and P. W. 11, Sona Tudu the driver of the Police Jeep statement UNDER SECTION 27 OF THE EVIDENCE ACT : ( 12 ) PURSUANT to the apprehension of A2 recorded on 19. 6. 2003 and on the basis of the lead given by him the knife (Mat. Ext. I) was recovered from his garden in terms of the Seizure List prepared by P. W. 19 against the Seizure list (Ext. . 4/2 ). DISCOVERY OF THE DEAD BODY : ( 13 ) WORKING of the basis of the G. D. Entry (Ext. 3), recorded by P. W. 7, sujit Mandal, P. W. 19 the Investigating Officer, Subir Karmakar went to the kistopur Telephone Exchange Office along with P. W. 2 and P. W. 3 and A1. The dead body was taken out from the tank, which was concealed in a gunny bag (Mat. Ext. \v ). P. W. 2 identified the said dead body as that o1 his Father. P. W. 5, Ganesh Soren the Sub-Divisional Engineer Telephone of Gazole exchange and P. W. 6 the J. T. O. , Joydev Das were also present when the dead body was brought out. P. W. 5 and P. W. 6 also stated that the son of the deceased identified the said body as that of his Father. INQUEST: ( 14 ) P. W. 19 held the Inquest (Ext. 8) on the dead body of the victim jiban Mondal in presence of P. Ws. 2, 3, 5 and 6. 4. MEDICAL: ( 15 ) UNDER the directions of P. W. 19, Subir Karmakar the Investigating officer of this Case P. W. 10 a constable of Gazole Police Station, Mritunjoy biswas carried the dead body of the deceased Jiban Mondal against the Dead body Challan (Ext. 10), who identified it to P. W. 4, Dr. M. L Das the superintendent, Malda Sadar Hospital. ( 16 ) P. W. 4, Dr. Das conducted the Post-mortem Examination over the said dead body on 22. 4. 10), who identified it to P. W. 4, Dr. M. L Das the superintendent, Malda Sadar Hospital. ( 16 ) P. W. 4, Dr. Das conducted the Post-mortem Examination over the said dead body on 22. 4. 2003 and found that the same was decomposed and there was maggot formation. Dr. Das found a "6 inch x 4 inch, incised cut throat wound over front of neck, cutting muscle, vessels, trachea, oesophagus and cervical vertibra partly. " According to Dr. Das "death was due to ante mortem injuries as stated above and homicidal in nature. " Dr. Das was of the further opinion that "the aforesaid injuries were sufficient to cause death". ( 17 ) IN his cross-examination: Dr. Das did not find any liquor inside the stomach of the deceased. 5. AT THE TRIAL : charge: ( 18 ) ON the basis of the Charge-sheet submitted by P. W. 19 the following charges were framed:"first - That you, on 15. 4. 03 at about 22. 00 hrs. at the house of Jiban mondal of Anildanga Bahadurpur, PS. Gazole, Dist, Malda, in furtherance of common intention of all of you, did commit murder by intentionally causing the death of Jiban Mondal"and thereby committed an offence punishable under Section 302 of the indian Penal Code read with S. 34 of the I. P. C. and. . . . . . . . . . . "secondly - That you, on same day same time at the same place knowing that the offence or murder punishable with death or life imprisonment having been committed, did cause certain evidence of the said offence to disappear to removed the dead body of Jiban Mandal from his house to an unknown place by a van and washed out the blood stains from the varanda and the van with the intention of screening all of you from legal punishment in furtherance of common intention of all of you and thereby committed an offence punishable under Section 201 of the Indian Penal Code read with S. 34 of the I. P. C. . . . . . . . "witnesses: ( 19 ) EYE WITNESSES: P. W. 2, Amit Mondal and P. W. 3 Anup Mondal. Both of them were the sons of the deceased Jiban and A1. . . . . . . "witnesses: ( 19 ) EYE WITNESSES: P. W. 2, Amit Mondal and P. W. 3 Anup Mondal. Both of them were the sons of the deceased Jiban and A1. At athe relevant time when they deposed in Court P. W. 2 was aged about 14 years ; while p. W. 3 was 12. In fact, the substratum of the Prosecution Case seems to have been told through the evidence of these two eyewitnesses. P. W. 2's evidence shows that A3 and A2 used to visit their house before the incident. On the date of occurrence after his father came home at about 22. 00 hours A2 and A3 served him liquor and A2 asked the deceased to open the door and thereafter a3 told his Father on the Varandah to look upwards and no soon thereafter A3 slit open his Father's neck with a knife. Thereafter, A2 held the deceased and laid him on the ground. His Father, who was still alive then A1 told A2 to catch hold of him as she was still alive then she caught hold of the legs of his Father. ( 20 ) P. W. 2 stated that he and his brother (P. W. 3) saw the incident through the hole of the door. He further stated that if they shouted A1 told them she would murder both of them. After their Father expired A2 and A3 put the dead body in a gunny bag (Mat. Ext. IV) and put it on a Van (Mat. Ext. II) and both of them pulled the Van away from the house. After an hour A2 came back and asked A1 to bring a wet cloth to wash the blood on the Van and Varandah. A1 washed the blood on the Varandah; then both A1 and A2 washed the blood on the Van. ( 21 ) P. W. 2 further slated that A2 took A1 and himself along with his brother (P. W. 3) to his house and while A1 and A2 went to the first floor to sleep P. W. 2 and P. W. 3 were asked to sleep on the ground floor. On the same day A1 applied some cow-dung on the Varandah under the instructions of A2 and some incense sticks were lighted in the house. On the same day A1 applied some cow-dung on the Varandah under the instructions of A2 and some incense sticks were lighted in the house. Thereafter A2 told him to inform his uncle that their Father was murdered when he went to commit theft. ( 22 ) P. W. 2 further saw that A1 and A2 disposed of the blood stained apparels of their Father by burning it of under a lemon tree in the house of A2 and on the next morning both P. W. 2 and P. W. 3 were taken by P. W. 1 in the bus stand and they were left there. Out of fear he did not inform the incident for six days; then he informed about the incident to his aunt (Pisima) (P. W. 15)and Police was accordingly informed. ( 23 ) HE also stated that when after they have informed the Police, information came from the Telephone Exchange about a dead body lying inside the septic tank and he was taken along with his brother (P. W. 3) to Kistopur along with A1 where the photograph of the dead body of his Father, which was identified by him, was taken. ( 24 ) P. W. 3 by and large corroborated P. W. 2 on all material aspects. POLICE WITNESS : ( 25 ) P. W. 7, Sujit Kumar Mandal Sub Inspector of Police attached to gazoie Police Station recorded the G. D. Entry No. 1106 and 117 dated 21. 4. 03 (Ext. 3 and 3/1 ). P. W. 8, Dhananjoy Ch. Mandal, NVF Constable accompanied p. W. 19 the Investigating Officer and was witness to the recovery of the knife (Mat. Ext. ll) and signed on the Seizure List on 19. 6. 2003 (Ext. 4 ). P. W. 9 was the Officer-in-Charge of Gazoie. Police Station, who reduced the Written complaint (Ext. 1), made by P. W. 1 and scribed by P. W. 16, into a formal FIR (Ext. 5), giving rise to Gazoie Police Station Case No. 74 dated 21. 4. 2003 and he also perused the G. D. Entry (Exts. 3 and 3/1 ). P. W. 10, Constable Mritunjoy biswas of Gazoie Police Station also accompanied P. W. 19 to the septic tank of the Kistopur Telephone Exchange from where the dead body was recovered and he carried the same for post-mortem examination under a Dead Body challan (Ext. 4. 2003 and he also perused the G. D. Entry (Exts. 3 and 3/1 ). P. W. 10, Constable Mritunjoy biswas of Gazoie Police Station also accompanied P. W. 19 to the septic tank of the Kistopur Telephone Exchange from where the dead body was recovered and he carried the same for post-mortem examination under a Dead Body challan (Ext. 10) and also signed on the Seizure List (Ext. 4/1) pertaining to the pant and Gunny Bag. P. W. 11, constable Sona Tudu was the driver of the police Jeep. He drove the Police Jeep with P. W. 19, Investigating Officer and the Constable P. W. 8 to the house of A2 at Bihor Gram and was a witness in respect of the seizure of the knife (Mat. Ext. 1), prepared under the Seizure list (Ext. 4/2 ). P. W. 18, Aniruddha Goswami, Sub-Inspector of Police attached to Gazoie Police Station signed on the Seizure List (Ext. 4/3) pertaining to the seizure of the gunny bag and the torn half pant (Mat. Exts. IV and III respectively)while P. W. 19 investigated the case and submitted the Charge-sheet. SEIZURE LIST WITNESSES : p. WS. 8, 12, 13, 10, 18, 11 and 19. 6. SECTION 311 OF THE CODE OF CRIMINAL procedure ( 26 ) SINCE it was felt by, and very correctly, by the learned Panel Lawyer that although Suniti Mondal the sister of the deceased Jiban Mondal a very vital witness, who was mentioned in the FIR but was not cited as a witness, for the proper disposal of the Trial she was required to be examined as a Court witness she filed the Petition before the learned Court on 22. 6. 2005. The same was allowed by the learned Fast Court, Fifth Court and she was examined as a Court Witness (P. W. 15 ). 7. CITUS : ( 27 ) THE Sketch Map (Ext. 12) was prepared by P. W. 19 the Investigating officer. 8. AT THE BAR : for A2 : Nirmal Sarkar ( 28 ) SHRI H. K. De, learned Senior Advocate submitted the P. W. 2 and p. W. 3 were minors and as such, their evidence ought to have been considered with much caution. 12) was prepared by P. W. 19 the Investigating officer. 8. AT THE BAR : for A2 : Nirmal Sarkar ( 28 ) SHRI H. K. De, learned Senior Advocate submitted the P. W. 2 and p. W. 3 were minors and as such, their evidence ought to have been considered with much caution. According to Shri De the learned Senior Advocate it is on the basis of their ocular evidence the entire Prosecution Case subsists, and in view of the contradictions in their evidence it was unsafe to rely upon the same. More so when, according to the learned Senior Advocate since on 22. 4. 03 both P. W. 2 and P. W. 3 were forwarded before the learned Magistrate for the purpose of recording their Statements under Section 164 of the said Code, it reveals that the same could not be recorded as they failed to understand the questions and were minors; in view of such position just after two years their mental faculty could not improve to a great extent and whatever they stated in court was subject to great scrutiny. ( 29 ) LEARNED Senior Advocate wondered that the source of light by which p. W. 2 and P. W. 3 saw the incident through a hole was not clear and in view of ext. 12 the Sketch Map the room did not have any window nor any door leading to the Varandah it was impossible for them to witness the entire incident. ( 30 ) NEXT, the learned Senior Advocate submitted that P. W. 2 had specifically stated that his Father-was administered liquor by A2, however, the autopsy Surgeon's (P. W. 4) finding shows he did not detect any Siquor in the stomach. This, according to Shri De, materially contradicts the evidence of the eye-witness-P. W. 2 and it was proper that the said evidence should have been ignored. He was of the further opinion that the incident did not take place in the time, place and the circumstances as shown by the Prosecution. In view of the same it was unsafe to record the conviction on such serious charge. ( 31 ) LEARNED Senior Advocate questioned the identity of the dead body in the light of the evidence of the Autopsy Surgeon (P. W. 4) that it was not a dead body of seven (7) days; but, only 4/5 days. In view of the same it was unsafe to record the conviction on such serious charge. ( 31 ) LEARNED Senior Advocate questioned the identity of the dead body in the light of the evidence of the Autopsy Surgeon (P. W. 4) that it was not a dead body of seven (7) days; but, only 4/5 days. ( 32 ) LEARNED Senior Advocate questioned the conduct of P. W. 2 and p. W. 3 that after the incident P. W. 2 and P. W. 3 stayed in the house of P. W. 1 but narrated the incident at first to P. W. 15 after 5/6 days. ( 33 ) LASTLY, Shri De, learned Senior Advocate for A2 took strong exception on the non-examination of P. W. I 5 by the Investigating Officer, which according to him has precluded the defence from cross-examining her on the basis of her previous statement during Investigation and he found serious defect with regard to the recovery of the knife (Mat. Ext. I) at the instance of A2 since the Statement (Ext. 15) did not bear his signature and it could not be termed as a formal statement under Section 27 of the Evidence Act (for short, the said Act ). Citations: ( 34 ) 1. State of Orissa v. Mr. Brahmananda Nanda, AIR 1976 SC 2488 the eye-witnesses not disclosing the name of the assailant for a day and half, affects the credibility of their testimony. 2. Ramreddy Rajeshkhanna Reddy and am: v. State of Andbra Pradesh, (2006)3 Supreme 175 - examination of the eye-witness by the Investigating Agency after a delay was a serious lacuna. 3. Chanan Singh v. The State of Haryana, AIR 1971 SC 1544 -abnormal conduct of the eye-witness renders his evidence liable to disbelieve. 4. State of Bihar v. Kapil Singh, AIR 1969 SC 53 - danger in accepting the evidence of child witness. For A3 : Chandu Yadav : ( 35 ) SHRI Jyotirmoy Adhikari with Ms. Papiya Chatterjee adopted the submission of Shri De the learned Senior Advocate and stressed on the time taken in lodging the FIR and detection of rice in the stomach of the deceased jiban and submitted that there was no evidence when he consumed the said rice. ( 36 ) SHRI Adhikari relied on a Written Notes of argument. Papiya Chatterjee adopted the submission of Shri De the learned Senior Advocate and stressed on the time taken in lodging the FIR and detection of rice in the stomach of the deceased jiban and submitted that there was no evidence when he consumed the said rice. ( 36 ) SHRI Adhikari relied on a Written Notes of argument. For A1 : Chandana Mondal: ( 37 ) SHRI Ganguly, learned State Defence also adopts the submissions of Shri De, learned Senior Advocate. In addition to the same he submitted that although there were other brothers and sisters of P. W. 1 and P. W. 15 yet none of them has been examined, who could have thrown light on the Prosecution case. Shri Ganguly, learned State Defence pointed out to the cross-examination of P. W. I about his being lodged in the Jail where he came to meet A2 and A3 which, according to him, was quite suspicious in nature and does not show the bona fide of his evidence. ( 38 ) REFERRING to the Sketch Map (Ext. 12) Shri Ganguly, learned State defence submitted that non-examination of the inhabitants of the adjoining house has caused serious prejudice to the Defence. ( 39 ) SHRI Ganguly further submitted that the Prosecution could not establish its case against A1 successfully. According to Shri Ganguly as there were several inconsistencies in the evidence of the eye-witnesses it was unsafe to uphold the conviction of A1 on the basis of such evidence. ( 40 ) ON the question of sentence Shri Ganguly submitted that the Capital punishment imposed upon A1 was not warranted in the facts and circumstances of the present case. Shri Ganguly further submitted that A1 did not take any active part in the commission of the murder and the Death Sentence imposed upon her was not just. He was of the view that this is not a fit case for imposing death Penalty and he strongly appealed before the Court against the sentence. Per contra: ( 41 ) LEARNED Public Prosecutor with Ms. Madhuri Das and Shri Swapan kumar Mallick showed from the evidence that P. W. 2 and P. W. 3 being the eye-witnesses was difficult to be disbelieved. Per contra: ( 41 ) LEARNED Public Prosecutor with Ms. Madhuri Das and Shri Swapan kumar Mallick showed from the evidence that P. W. 2 and P. W. 3 being the eye-witnesses was difficult to be disbelieved. According to the learned Public prosecutor they were quite competent to depose since between the date when they went to record their confession and the date when their evidence was taken in Court a lot of time has elapsed and they developed sufficient maturity; so there was no difficulty in accepting their evidence. He submitted that the eye-witnesses have laid the basis of the Prosecution Case, which has been corroborated by all the other witnesses and the Charges having been sufficiently proved against all the Appellants there was no scope for interference in the appeals. ( 42 ) LEARNED Public Prosecutor further submitted that this was a fit case for upholding the SENTENCE OF DEATH as this is a very treacherous murder of the husband by his wife. Citation: ( 43 ) AMRUTLAL Someshwar Joshi v. State of Maharashtra, 1995 Cr LJ 400 on the point that heinous crime committed in a cruel and diabolical manner falls within the rarest of the rare case, warrants imposition of the DEATH sentence. 9. IN APPEAL: section 374 (2 ). Cr. P. C. : ( 44 ) APPELLANT Nirmai Sarkar (A2) (in CRA No. 801 of 2005) and appellant Chandu Yadav (A3) (in CRA No. 99 of 2006) preferred two separate appeals assailing their conviction and sentence recorded by the learned Fast track, 5th Court on 06. 10. 2005 in Sessions Trial No. 6 (4)2005. Section 383. Cr. P. C: ( 45 ) APPELLANT Chandana Mondal (A1) in CRA No. 57 of 2006 filed the appeal from Jail questioning her conviction and CAPITAL PUNISHMENT. Section 366. Cr. P. C: ( 46 ) SENTENCE OF DEATH imposed upon Appellant Chandana mondal (A1) by the learned Fast Track, 5th Court in Sessions Trial No. 6 (4)05 on 06. 10. 2005 was submitted before the Court for confirmation. It gave rise to death REFERENCE NO. 6 of 2005. 10. COROLLARY: ( 47 ) SINCE all the above Appeals and the Death Reference arose out of a common judgment and were heard analogously this Judgment covers the fate of the aforesaid Appeals including the Death Reference. 11. 10. 2005 was submitted before the Court for confirmation. It gave rise to death REFERENCE NO. 6 of 2005. 10. COROLLARY: ( 47 ) SINCE all the above Appeals and the Death Reference arose out of a common judgment and were heard analogously this Judgment covers the fate of the aforesaid Appeals including the Death Reference. 11. DISCUSSION: ( 48 ) OCULAR evidence of P. W. 2 and P. W. 3 formed the basic framework of the Prosecution Case. It is what they have seen and said haunts the entire spectre of the Trial. They have described as to how they witnessed the macabre scene of their Father Jiban Mondal being terminated by A3. after A2 and A3 offered him alcohol and thereafter his throat was slit open by A3. To ensure his death A2 laid him to the ground and A1 held his legs. ( 49 ) THESE two eyewitnesses have further stated that they were silenced by A1 at the risk of their lives and in the manner in which the dead body of their father was disposed of in a Van (Mat. Ext. I), which both of them identified in the Court House, and the modus operandi of A1 and A2 in application of cow dung on the place of occurrence after stains of blood were washed off from the van and the Varandah and the lighting of incense sticks in the house for disappearance of the evidence of the crime. ( 50 ) WE further have the link evidence of P. W. 15, who has been examined as a Court Witness pursuant to the prayer made by the learned panel Lawyer under Section 311 of the said Code. She has stated that how p. W. 2 came to her house from P. W. I's place and narrated the incident which prompted them to take steps for filing the complaint. ( 51 ) SUPPORTED by the evidence of the eyewitnesses we have other attending evidence of P. W. 5 and P. W. 6 of the Kistopur Telephone Exchange pertaining to the discovery of the dead body in a Gunny Bag (Mat. Ext. IV), which upon recovery at the instance of P. W. 19, was identified as the dead body of Jiban Mondal, Father of P. W. 2 and P. W. 3, as seen from the evidence of P. Ws. 2, 15 and 1. Ext. IV), which upon recovery at the instance of P. W. 19, was identified as the dead body of Jiban Mondal, Father of P. W. 2 and P. W. 3, as seen from the evidence of P. Ws. 2, 15 and 1. ( 52 ) SUPPLEMENTED by the attending evidence of the recovery of the dead body we have on record the evidence of P. W. 19 leading to the recovery of the Knife (Mat. Ext. ll) under Seizure List (Ext. 4/2) attested by P. Ws. 8, 11 and 19 in terms of the Statement (Ext. 15) of A2. ( 53 ) THIS is the basic structure of the Prosecution Case, which has been fortified by the evidence of the seizure of the Van (Mat. Ext. I) on which the dead body of Jiban Mondal was carried. P. W. 12 the owner of the Van deposed to with regard to the seizure of the said Van (Ext. 4/3) on 21. 4. 03 in presence of P. W. 13 by P. W. 19 the Investigating Officer. ( 54 ) IT would be pertinent to note that both P. W. 2 and P. W. 3 had identified the said Van (Mat. Ext. l), which was given in Zimmanam (Ext. 11) of p. W. 12 as the same Van which was used for disposing of the dead body of their Father, in the Court House in course of their examinations. ( 55 ) THE Autopsy Surgeon (P. W. 4), Dr. M. L. Das the Superintendent of the Malda Sadar Hospital on examination of the dead body of the deceased jiban Mondal found: "6 inch x 4 inch. Incused cut throat wound over front of neck,". According to Dr. Das the death was ante mortem and homicidal in nature and the injuries noted by him were sufficient to cause death. ( 56 ) THE ocular evidence and the Medical Evidence absolutely fits in with each other with regard to the nature of injury seen by the two eye -witnesses and that what has been found by the Autopsy Surgeon. This, in fact, greatly fortifies the Prosecution Case in a long way. ( 56 ) THE ocular evidence and the Medical Evidence absolutely fits in with each other with regard to the nature of injury seen by the two eye -witnesses and that what has been found by the Autopsy Surgeon. This, in fact, greatly fortifies the Prosecution Case in a long way. ( 57 ) THE Investigating Officer (P. W. 19) has spoken about the edifice of the Prosecution Case since the time he took up the Investigation and the discovery of the dead body till apprehension of all the Appellants, effecting the seizure of the various articles and the submission of his Report in Final Form. 12. IMPACT OF THE SUBMISSIONS AT THE BAR : ( 58 ) IT has been submitted at the Bar that as P. W. 2 and P. W. 3 were child witnesses they were prone to tutoring and as such, since they were under guidance of P. W. 15 and P. W. I their evidence should not have been accepted without any other corroboration. The decision of State of Bihar v. Kapil Singh (supra) has also been perused by us. We find that even if the said two witnesses were child witnesses their evidence was quite creditworthy. P. W. 2 at the time of his deposition in Court on 17. 6. 05 was aged 14 years while his younger brother (P. W. 3) was 12 years when he deposed in Court. Firstly, the tenor of their evidence inspires confidence in our mind and we find that what they said in Court was quite acceptable. Secondly, we should not lose sight of the fact that they were deposing about the death of their Father at the hands of the accused amongst whom none else but their own Mother was involved. As such, we would hardly feel that they had any occasion to speak something apart from the truth. Thirdly, their evidence fits in with the other attending circumstances; particularly, with the Medical Evidence. ( 59 ) THE criticism made at the Bar with regard to their abnormal conduct in narrating the incident to P. W. 15 and P. W. 1 after a lapse of 5/6 days, in our view, has no relevance at all. We have to appreciate the trauma these two little children suffered when they saw how their Father was butchered by a pack of persons, which included their own Mother. We have to appreciate the trauma these two little children suffered when they saw how their Father was butchered by a pack of persons, which included their own Mother. One has to put oneself into the shoes of these two hapless children to gauge their agony in such ghastly circumstances. Obviously it would have a great psychological effect on their minds and it was enough to make them dumbfounded for few days before they could regain their composure and speak about their horrific experience. The decision of State of Orissa v. Mr. Brahmananda Nanda (supra) cannot be applied in the instant case in the light of the above facts and circumstances. ( 60 ) EVEN if we accept that the two witnesses (P. W. 2 and P. W. 3) were under the guidance of P. W. I and P. W. 15 from the period between 16. 4. 03 to 21. 4. 03 i. e. , after the time when the incident took place and such time when the FIR (Ext. 5) was lodged by P. W. I we do not, even for a moment, feel persuaded to believe that they were tutored and what they have seen they have stated and what they have stated has been demonstrated in the evidence. The decision of State of Bihar v. Kapil Singh (supra), in our most humble view, has absolutely no manner of application. ( 61 ) SIMILARLY, the decision of Ramreddy Rajeshkhanna and Anr. v. State of Andhra Pradesh (supra) would hardly be of any avail to the Defence as on the proposition that the two eye-witnesses, who were most relevant for the prosecution, were examined by the Investigating Officer (P. W. 19) after quite sometime as it has been seen the ball of the Criminal Case was set rolling only after the child witnesses divulged the incident after 5/6 days of the incident and the case was registered and the Investigation taken up by P. W. 19 which fully explains the situation. ( 62 ) REFERENCE to Chanan Singh's case (supra) by Shri De, learned senior Advocate to illustrate his point that the eye-witnesses acted abnormally and kept quiet for several days before they spoke about the incident before p. W. 15 and P. W. I, in our view, cannot come to the rescue of the Defence in view of the discussion held hereinabove. ( 63 ) THE Sketch Map (Ext. 12) has been perused by us in the light of the evidence on record and we are not inclined to accept the submission made at the Bar that the incident did not take place in the particular place as shown by the Prosecution. We, on the contrary, find enough evidence with regard to the incident taking place in the place and time and in the manner described by the witnesses. ( 64 ) SO far as the identification of the dead body is concerned we find the overwhelming evidence of P. Ws. 5,6,18 and 19,1 and 15 that both P. W. 2 and P. W. 3 identified the same as that of their Father. ( 65 ) WE are also not persuaded by the submission at the Bar that notwithstanding the evidence of the child witnesses that their Father was served liquor before he was done to death, P. W. 4 the Autopsy Surgeon did not find liquor in the stomach and he was of the opinion that as no liquor was found it could be presumed that the deceased had not consumed the same before his death. We are extremely afraid that we cannot buy this argument in any manner. After all it is the opinion of the Autopsy Surgeon and we are not bound by the same. We cannot be oblivious of the fact that the incident took place sometime in the night of 15. 4. 2003 whereas the dead body was retrieved from a pit of the kistopur Telephone Exchange in the morning of 21. 4. 2003 after a gap of six days. During this period, alcohol in all likelihood has dissolved in the system and that too as the dead body was found in a state of maggot formation, in our view, the opinion of the Autopsy Surgeon about detection of liquor in the stomach can have hardly any effect. ( 66 ) THE submission of the State Defence that as there were other neighbourhood houses non-examination of the inhabitants of the same renders the Prosecution Case unbelievable, in our view, pales into insignificance considering the fact that the incident took place in the wee hours of the night inside the house of the A1 and as (he dead body was disposed of in a gunny bag (Mat. Ext. IV) on the van [mat. Ext. Ext. IV) on the van [mat. Ext. I) by A2 and A3 there was hardly any scope for any commotion. The throat of deceased Jiban was slit, so there was no chance of his even groaning in pain leave alone raising a cry and P. W. 2 and P. W. 3 were silenced at the risk of their lives by A1, takes care of the entire situation. 13. FINDING : ( 67 ) TAKING into account the wholesome view of the evidence and other materials on record we feel that the Prosecution has been very successfully able to bring home both the Charges against all the Appellants beyond all reasonable doubt. We have carefully considered the evidence of the eye-witnesses, the Seizure List witnesses, the Medical Evidence and the investigational aspect and all other attending facts and circumstances pertaining to the main thrust of the Prosecution Case and feel that the conviction recorded by the learned Trial Court is in order and no interference is called for. 14. SENTENCE: ( 68 ) SINCE we have found that the conviction has been very correctly recorded by the learned Fast Track, 5th Court against all the Appellants now the question of sentence comes. A2 and A3 upon their conviction in respect of the Charge of Section 302/34 of the Indian Penal Code have been sentenced to suffer imprisonment for life which is a minimum sentence prescribed under the Statute. So no question of interference arises. ( 69 ) SO far as the Charge of Section 201/34 of the Indian Penal Code is concerned ALL THE APPELLANTS have been sentenced to a substantive period of imprisonment which is to run concurrently - for the period of 7 years i. e, the maximum prescribed under the Statute, in our view, call for no interference. The manner in which the Appellants caused disappearance of evidence and disposing of the dead body calls for the most deterrent punishment and as such, we feel the substantive sentence is quite just and proper. 15. CAPITAL PUNISHMENT : ( 70 ) THE provision of Section 354 sub-section (3) of the said Code has been rigidly complied with by the learned Fast Track, 5th Court while awarding the SENTENCE of DEATH. We are now called upon to decide as to whether the said sentence has to be affirmed. 15. CAPITAL PUNISHMENT : ( 70 ) THE provision of Section 354 sub-section (3) of the said Code has been rigidly complied with by the learned Fast Track, 5th Court while awarding the SENTENCE of DEATH. We are now called upon to decide as to whether the said sentence has to be affirmed. ( 71 ) WE have addressed ourselves with regard to the Law governing in this field right from Bachan Singh's case [ air 1980 SC 898 ] till Gurrneet Singh v. State of U. P. [ (2006)1 SCC (Cr) 138] and have apprised ourselves with the various guidelines laid down by the Supreme Court in respect of the imposition of DEATH SENTENCE. The justification of imposition of a DEATH SENTENCE and the circumstances under which the same can be imposed have been crystallized by a galaxy of decisions of the Supreme Court [read : Sushil murmu v. State of Jharkhand, 2004 SCC (Cr) 529 : 2004 C Cr LR (SC) 575, simon and Ors. v. State of Karnataka, 2004 SCC (Cr) 646 : 2004 C Cr LR (SC) 892 and Praveen Kumar v. State of Karnataka, 2004 SCC (Cr) Supp. 357] ( 72 ) WE have taken a very circumspective note of the detail reasoning of the learned Fast Track, 5th Court in imposing the ULTIMATE SENTENCE against A1. ( 73 ) UNDER normal circumstances we would have hardly any reason to dissociate ourselves from the said conclusion as the same, we find, are cogent and synthesized. If we sit with the Scales, as used by the learned Fast Track, 5th Court, we would find the Balance tilts on the aggravating angle. An unfaithful wife pursuing an illicit connection with A2 which prompts her to finish all the obstacles in her life - her husband Jiban with the aid of executioner A3 in the manner which is blood curdling not only for the two eye-witnesses P. W. 2 and p. W. 3 but any one who peruses such evidence to be for a moment feel that A1 has ceased the right to live in a civil society on account of her treacherous and macabre crime. At once it would require her life's taper be blown off by a judicial dictat. ( 74 ) A second look, however, would make all the difference. At once it would require her life's taper be blown off by a judicial dictat. ( 74 ) A second look, however, would make all the difference. ( 75 ) EVEN at the cost of repetition we must say that the learned Fast track, 5th Court has in a meticulous fashion not only reasoned its finding but in an admirable fashion came to its conclusion with regard to the sentencing paradigm. ( 76 ) YET the First Court of Appeal deciding on the question of facts and delveing on the point of sentence we feel that the crime was indeed horrendous in nature. Horrendous in nature so far as all the participants in the grisly incident were concerned A1, A2 and A3-the perpetrator, executioner and conceptualization all stood on equal balance if it was the lust of A2 for having a1 fully in his life without impediment of her husband the deceased Jiban mondal, the active connivance and full scale participation of A1 in weeding out her husband and taking part in the crime when A3 executed the operation by slitting open the throat of the helpless victim before he was served liquor. Treachery was writ large on the act. A2 and A3, who came, obviously being known to the deceased earlier and offered him alcohol in the guise of an acquaintance and slaughtered him within a twinkling of an eye with a full scale participation of A2 and A3. ( 77 ) AGAIN if we in our humble hands which Law has provided to us we find that all the accused A1, A2 and A3 if put on the Scale the Balance would heavily tilt on the aggravating side. ( 78 ) BUT, the unfaithfulness and treachery of A1 the wife of the deceased played heavily in the mind of the learned Fast Track, 5th Court, for which we do not find any fault; but, however, that as she has been singled for the CAPITAL punishment and the two others have been spared the GALLOWS, in our opinion although all the three accused deserved the ULTIMATE SENTENCE but as they have not been awarded the same and there was no prayer for enhancement of their sentence on behalf of the State we feel at this stage as we cannot suo motu enhance the same and it would not be practical also. ( 79 ) IN our view, cumulatively indeed this is the rarest of the rare case; but, as in sentence there has been a differentiation at the Trial Court we feel that isolatedly Al's case falls within the category of rarer of rare case. ( 80 ) WE are equally of the opinion that the SENTENCE OF DEATH against A1 does not fit in with the scheme of the entire episode. ( 81 ) WHILE deciding on the question of sentence we have taken careful note of the submission of the learned Public Prosecutor and perused the decision of Amrutlal Someshwarjoshiv. State of Maharashtra (supra) and on this aspect we have made ourselves abreast of the situation as pointed out by the learned Public Prosecutor and also with the ratio of the decision of Amrutlal someshwarjoshi v. State of Maharashtra (supra) with utmost circumspection. ( 82 ) WITHOUT departing from the view recorded by the learned Fast Track, 5th Court in respect of Section 354 sub-section (3) of the said Code to maintain the Balance we set aside the SENTENCE OF DEATH imposed on A1 and direct that she be sentenced to imprisonment of life. 16. FOR THE FAST TRACK : FIFTH COURT : malda: ( 83 ) BEFORE we part we feel it incumbent to record our appreciation of meticulous analysis of the evidence done by the learned Fast Track, 5th Court and the very well written verdict. Learned Registrar (Judicial) is requested to convey our appreciation. 17. EPILOGUE : death REFERENCE No. 6 of 2005 is answered accordingly in the negative. With the aforesaid modification in sentence in CRA No. 57 of 2006 all the Appeals stand dismissed.