JUDGEMENT 1. The Death Reference and the Criminal Appeal aforesaid arise out of the judgment of conviction and order of sentence respectively dated 28th March 2009 and 1st April 2009 of the Additional Sessions Judge cum-Fast Track Court No. V as passed under Sessions Trial No.1271 of 2007/tr. No.158 of 2007 whereby the appellant has been convicted under Sec.302 of the Indian Penal Code and he has been sentenced to be hanged by neck till he is dead. 2. The prosecution case depicts the story of an ill fated woman, the deceased who was killed in her house when she was there with two minor children and the husband had gone out of station for appearing at an examination for getting employment. The case of prosecution as set forth in the fard-beyan of the informant Mukund Chaudhary (P. W.5), which was recorded by s. I. Sanjit Kumar Sinha (P. W.7), Officer In-charge, Sabour police Station on 5th June 2006 at 7:00 A. M. at the Darwaja of the house of the deceased, is that on 5th June 2006, at 6:00 P. M. , he (informant) received a telephonic information that his sister sanjita Devi (deceased) had been killed and on learning this, he came to the house of the deceased and saw that his sister, the deceased was lying dead in the Angan of the house. He has stated that Sanjita was married to Sanjay Chaudhary 15 years ago and they were living as tenants in the house of Baldeo Sah near shitala Sthan at village Sabour. He also stated that his brother-in-law Sajnjay Chaudhary was running a poultry firm in the house for earning his livelihood. He further stated that on 2nd June 2006, his brother in-law Sanjay Chaudhary (P. W.2) had gone to bhopal for appearing at a recruitment examination in the railways. He also stated that he learnt from his Bhagina Lucky kumar (P. W.4), aged 12 years and also some others of the locality that the appellant Md. Badruddin with one unknown had entered into the deceaseds house in the preceding night at 12:30 oclock and had tried to rape her and in the attempt of rape, he had dragged her in the Angan and had killed her there by throttling her. Badruddin with one unknown had entered into the deceaseds house in the preceding night at 12:30 oclock and had tried to rape her and in the attempt of rape, he had dragged her in the Angan and had killed her there by throttling her. As to the motive for the occurrence, the informant stated that some days ago his brother in-law (P. W.2) had sold his tempo bearing Regd. No. BR-10b / 0173 to the appellant and the sale money of the same had remained due for the realization of which an altercation had also taken place between them. The informant suspected that due to this grudge also the appellant committed the offence. The informant claimed that his Bhagina lucky Kumar (P. W.4) and some neighboring persons had also seen the occurrence but any neighbor was not named in the fard-beyan (Ext-4/2 ). On the basis of the fard-beyan, the FIR (Ext-5)for the offence under Sec.376/302/34 IPC was registered at the Police Station and the investigation commenced. On completion of investigation charge-sheet for the offence under section 302 IPC was filed against the appellant who was put on trial as a result of which he was convicted and sentenced as above. 3. As many as seven witnesses were examined by the prosecution. P. W.1 Anil Kumar Chaudhary, the Mamera brother of the deceased is a resident of the locality who learning about the occurrence, had came to the P. O. and had seen the dead body of the deceased and he had also learnt about the occurrence from the deceaseds son Lucky Kumar (P. W.4) who stated as an eye witness to the occurrence. P. W.2 Sanjay Chaudhary is the husband of the deceased who had gone out-station on the date of occurrence and on getting information about the occurrence, he came back and learnt in detail about the occurrence from his son lucky Kumar (P. W.4) who has claimed to have seen the occurrence. P. W.3 Atul Kumar Mallik is the doctor who had conducted the P. M. post mortem on the deceased. P. W.4 Lucky kumar is deceaseds son who deposed as an eye witness to the occurrence. P. W.3 Atul Kumar Mallik is the doctor who had conducted the P. M. post mortem on the deceased. P. W.4 Lucky kumar is deceaseds son who deposed as an eye witness to the occurrence. P. W.5 Mukund Chaudhary and P. W.6 Manoj kumar Chaudhary (informant) are the brothers of the deceased, who had learnt about the occurrence in the ensuing morning and then they had come to the deceaseds house, P. O. where the dead body was lying. P. W.7 Sujit Kumar Sinha is the I. O. 4. Out of the witnesses it is proper to discuss the evidence of the doctor first. The doctor (P. W.3) has stated that he had conducted post mortem on the dead body of the deceased sanjita Devi aged 20 years (The age 20 years appears to be a mistake of the reading of the P. M. Report (Ext-1) by the doctor wherein the age has been described actually as ,,28 years) on 5th june 2006 and found as follows: (I) Reddish fluid was coming out of right angle of mouth. The nail bed and lips were cyanosed. The face and conjunctiva were deeply congested. Injuries: (i) One cescentic abrasion 1"x3"x1/8" was present on upper part of left side of face 1" inner to left ear. Another linear abrasion "x1/8" was present on outer aspect of left side of face near its middle. One bruise 1"x1/3" was present on left side of chin. On cutting skin over nose underlying tissues were bruised near its opening. The mucosa of lower lip was abraded in an area of 1"x1/4" near its middle. (ii) On dissection of neck and chest, the mucosa of larynges and trachea was found deeply congested and contained reddish fluid. On opening the chest cavity, both lungs were found deeply congested and exuded dark frothy blood on cutting. Chambers of left side of heart were empty while right side contained dark fluid blood. Genital Examination: (iii) Deceased was found to wear a stripped panty which was not disturbed. Under the panty, 4 pieces of clothe were found in front. These pieces of clothe and panty had stains over them. They were handed over under 3 packets to the choukidar for sending them to the FSL, Patna to detect the presence of blood and seminal stains. Genital and inner aspect of the thing did not show any injury. Under the panty, 4 pieces of clothe were found in front. These pieces of clothe and panty had stains over them. They were handed over under 3 packets to the choukidar for sending them to the FSL, Patna to detect the presence of blood and seminal stains. Genital and inner aspect of the thing did not show any injury. The hymen had several old tears and was present as carunculous myrtibor. However, vaginal swab was taken and was sent to the department of Pathology, JLNMCH, Bhagalpur for detection of human spermatozoa. Opinion: injuries were ante mortem, grievous and dangerous to life in ordinary course of nature and caused by closure of mouth and nostril by some soft and blunt object, such as, fingers and palms of assailant or assailants. Cause of death: Asphyxia and shock due to smothering. Time : Within 12 hours to 24 hours from the time of p. M. Examination. The original P. M. Report and its carbon copy which was in the writing and signature of the witness was produced and provedas Ext-1. The doctor also proved Ext-2 and ext-3 which were the pathological report and reply to the query made by the I. O. 5. As would appear from the evidence of the I. O. (P. W.7, Para-5) that on inspection of the P. O. Angan he had found a mat spread in the Angan where the dead body was found and some vomited substance was there on the mat. In this context the I. O. had made a query from the doctor vide Ext-8 whether in a case of killing by smothering by way of closure of mouth and nostril, vomited substance could be found at the P. O. Angan or not and the reply submitted vide Ext-2 was that in such a case of killing, vomited substance could be found in the Angan if there was undigested food in the stomach at the time of killing. Ext-3 is the pathological report mentioning that on examination of the vaginal swab, no spermatozoa were found. It will be relevant to mention here that deceaseds son Lucky Kumar (P. W.4, Para-2)has stated in his evidenced that his mother (deceased) had taken meal with them in the night before going to bed. The Col.21 of the P. M. Examination Report (Ext-1) mentions pasty food was found in the stomach. It will be relevant to mention here that deceaseds son Lucky Kumar (P. W.4, Para-2)has stated in his evidenced that his mother (deceased) had taken meal with them in the night before going to bed. The Col.21 of the P. M. Examination Report (Ext-1) mentions pasty food was found in the stomach. Thus there are materials and evidence to show that there was undigested food in the stomach and the vomited material could be found in the P. O. Angan when the deceased had been killed by smothering by way of closing the mouth and nostril. The Doctor witness was subjected to a very short cross-examination and there is nothing to discredit his testimony on any count. 6. The panty and 4 clothes under the front of panty on the deceased, were sent to FSL, Bihar, Patna for chemical examination report. The Report of FSL is as Ext-9 on the record. It mentions the articles received as follows: the packet marked-A contained one panty and four cloth pieces- pink yellow, blue and black which were further marked 1,2,3,4 and 5 respectively in this laboratory. (1) The Panty (Janghia) marked-A/1 bore reddish brown stains over large areas It also bore gheysh white stains which were stiff to feel and which produced characteristic bluish white fluorescence in ultra violet light. (2) The pink cloth piece marked A/2 bore reddish brown stains over large areas. It also bore some greyish stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in ultra violet light. (3) The yellow cloth piece marked A/3 bore reddish brown stains over large areas. It also bore greysh stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in ultra violet light. (4) The blue cloth piece marked-A/4 bore some white stains which were neither stiff to feel nor did they produce any characteristic bluish white fluorescence in ultra violet light. (5) The black cloth piece marked-A/5 bore blackish stains at places. It also bore some white stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in Ultra Violet light. The result of examination is mentioned as below: (1)Blood has been detected in the exhibits as noted below:- (i) Exhibit marked-a/1. . Over large areas. (ii) Exhibit marked-a/2. . . . . . Over large areas. (iii) Exhibit marked-a/3. . . . . The result of examination is mentioned as below: (1)Blood has been detected in the exhibits as noted below:- (i) Exhibit marked-a/1. . Over large areas. (ii) Exhibit marked-a/2. . . . . . Over large areas. (iii) Exhibit marked-a/3. . . . . . . Over large areas. (iv) Exhibit marked-a/4. . . . . . . . At places. (2) Blood could not be detected in the exhibit marked A/4. (3) Blood mixed semen has been detected in the exhibit marked A/1. (4) Spermatozoa could not be detected in any of the exhibits marked A/2, A/3, A/4 and A/5. (5) Serological report on origin and group of blood and semen would follow. Thus, semen was detected over the panty found on the deceased. Semen is whitish liquid containing sperm produced by male animal/human. Presence of semen on the panty is indicative of the fact that a male body was responsible for causing it. 7 Before entering into discussion of the evidence of the eye witnesses, it is further proper to discuss the evidence of the Investigating Officer who had visited the P. O. , prepared the inquest report, took statement of the witnesses and sent the dead body for P. M. Examination and received the P. M. Examination report and also report from the FSL where the undergarment and some clothes under it was sent for chemical examination. 8. The I. O. (P. W.7) deposed that on 5th June 2006 at 6:30 A. M. , he was the Officer In-charge of Sabaur Police station, when he received telephonic message that near Shitala sthan, Sabour Poultry farm a female had been killed in the preceding night. On this information, he recorded S. D. Entry No.769 dated 5th June 2006 and with Chaukidars Jayant Kumar and Naresh Paswan and two armed constables proceeded to the p. O. He further deposed that on reaching at the P. O. he recorded the statement of informant Mukul Chaudhary (P. W.5) and witness Manoj Kumar (P. W.6) had also put his signature in witnessing the recording thereof. The informants statement i. e. fard-beyan has been marked as Ext-4/2. The first information report which was registered on the basis of fard-beyan was proved as Ext-5. The I. O. described about the P. O. as the Angan of the house of Baldeo Sah in village Shitala Sthan, Sabaur and there was a poultry farm in the building. The informants statement i. e. fard-beyan has been marked as Ext-4/2. The first information report which was registered on the basis of fard-beyan was proved as Ext-5. The I. O. described about the P. O. as the Angan of the house of Baldeo Sah in village Shitala Sthan, Sabaur and there was a poultry farm in the building. As would also appear from the evidence of other witnesses that the deceased, her husband and children were living in the house and were running a Poultry Farm in two rooms of the house. The I. O. mentioned that in south of the Angan there was a Khaprail (tiled) room which was the living room of the deceased. It was further stated by the I. O. that towards west and south of the Angan there were two other Khaprail rooms which were being used as Poultry farm and net barricades and poultry fodders were there. About the boundary of the house, the I. O. mentioned that towards north there was barren land, towards south there was house of Ramesh kumar Dwivedi, in the east there was pitch road and in the west there was mango orchard of Sukhdeo Sah. Thus in the three sides of the house, there were barren lands, road and mango orchard and only in one side of the boundary, there was house of one Ramesh Kumar Dwivedi. 9. The I. O. stated that he prepared the inquest report which has been proved as Ext-6. Then he stated that he had found one 7-inch long hair from the left fist and two hairs each 1 inch long from the right fist of the deceased. The three hairs were seized and seizure-list was prepared by him and it was proved as Ext-7. 10. The I. O. further stated at Para-6 that he raided the house of the appellant, but he (appellant) was found absconding. He further stated that he filed a petition for issuance of process for apprehension of the appellant. 11. The I. O. further deposed at Para-8 that he received the supervision notes of the Deputy Supedrinte4ndent of Police which mentions that the appellant had long hairs on his head and, thus, it was opined by the Deputy Superintendent of Police that the long hair found in the fist of the deceased was of the appellant. 11. The I. O. further deposed at Para-8 that he received the supervision notes of the Deputy Supedrinte4ndent of Police which mentions that the appellant had long hairs on his head and, thus, it was opined by the Deputy Superintendent of Police that the long hair found in the fist of the deceased was of the appellant. Thus, the supervision notes indicated that after apprehension of accused-appellant, long hair were found on his head which indicated that the long hairs in the fist of the deceased were of the appellant. 12. The I. O. also stated about having received the report of the FSL and also the reply to his query regarding vomited substance found on the P. O. The report of the FSL is ext-9. The I. O. was cross-examined by the defence but any material omission or contradiction in the evidence with respect to the earlier statement of witnesses made during the investigation was not proved during the cross-examination. 13. Out of the witnesses on the point of occurrence, p. W.5 Mukund Chaudhary, the informant deposed that his sister sanjita (deceased) was married to Sanjay Chaudhary and they were living as tenant at Sabour in the house of Baldeo Sah where they also carried on poultry farm business. He further deposed that his Bhagina (sisters son) Lucky Kumar (P. W.4) had informed him in the morning at about 6 Oclock and thereafter his two Bhaginas, namely, Lucky Kumar and Ishu had come to him and had disclosed to him about the occurrence. Then he went to the P. O. He further deposed that Lucky Kumar had disclosed to him that in the preceding night at 12:30 Oclock, badruddin (appellant) had mounted over his mother (deceased)and had closed her mouth and thereby killed her. He also deposed that he had gone to the P. O. along with his wife, brother manoj Kumar (P. W.6) and the two Bhaginas. People of the locality had assembled there. He gave his statement before the police which was recorded at the P. O. The statement, namely, fard-beyan is Ext-1. He identified the appellant in the dock during his examination. He stated that he had learnt about the occurrence for the first time from his Bhagina Lucky Kumar. Then he informed his wife and elder brother Manoj (P. W.6 ). He gave his statement before the police which was recorded at the P. O. The statement, namely, fard-beyan is Ext-1. He identified the appellant in the dock during his examination. He stated that he had learnt about the occurrence for the first time from his Bhagina Lucky Kumar. Then he informed his wife and elder brother Manoj (P. W.6 ). He further deposed that when he had reached the P. O. , he had also got some knowledge from Anil Chaudhary, Birju Chaudhary, prahlad Chaudhary, Niranjan Das etc. who had assembled there. But he has not said what he had learnt from these persons. Naturally, these persons who had assembled at the P. O. would have talked to the informant and they would have communicated their knowledge about the occurrence, but no such person is said to have claimed before him as witness to the occurrence. There is nothing in the cross-examination of this witness to discredit his testimony. This witness who happens to be the informant of the case is not an eye witness, but the has deposed about the earliest version of his Bhagina Lucky Kumar (P. W.4), the sole eye witness to the occurrence that the appellant was seen mounting over the deceased and to have closed her mouth and thereby suffocated her to death. 14. The most important witness of the occurrence is lucky Kumar (P. W.4 ). This witness, when he was examined on 18th December 2008, was aged about 11 years and was reading in Class-V. The date of occurrence is the night of 4th June 2006. Thus, the witness would be of 9 years age at the time of occurrence. While recording the evidence of this witness, the learned trial court has observed in the deposition itself that the boy was of proper understanding. Thus this boy was able to know and tell about the things he had seen. He has deposed (Para-1) that he along with his parents and younger brother aged 5 years was living in his house and on the date of occurrence, his father was not in the house as he had gone to Bhopal for appearing in one examination. Thus this boy was able to know and tell about the things he had seen. He has deposed (Para-1) that he along with his parents and younger brother aged 5 years was living in his house and on the date of occurrence, his father was not in the house as he had gone to Bhopal for appearing in one examination. He further deposed that in the night of 4th June 2006, at about 12.30 Oclock while he was asleep in his house, he woke up hearing the cries of his mother and then he came into the Angan and saw that the appellant badruddin had mounted over his mother and he had closed the mouth of his mother, who was trying to cry out. He further deposed that seeing him there, Badrudding (appellant)threatened him that if he disclosed about the occurrence to any one then he would kill him and his father and saying so he fled away from the place. He continued to depose that when he came close to his mother, he found that she was dead and her limbs had spread out. He also deposed that he cried but nobody came there. By this expression it appears that the boy means to say that he wept there, may be loudly, but nobody came. He also deposed that he had identified the appellant Badruddin in the light of electric bulb. He also deposed that Badruddin was on visiting terms to his father. Therefore, he knew him from before. He also deposed that his father was running poultry farm in his house. This witness had also identified the appellant in the dock. He also deposed that he informed his Mama (maternal uncle mukund Chaudhary, informant) who had also come to the P. O. in the morning. In his cross-examination he deposed that his mama Mukund Chaudhary was not living in that house and that mamas house situated at a distance of about 2 Kms. from his house at Tilka Majhi Chowk. He also stated at Para-9 of his cross-examination that he and his brother Chiku Kumar had gone to his Mamas house at Tilka Majhi Chowk at about 6 oclock in the morning and he had traveled on a tempo. He further deposed that on reaching his Mama, he talked to his mamas wife (Mami) and the children in the house. He also stated at Para-9 of his cross-examination that he and his brother Chiku Kumar had gone to his Mamas house at Tilka Majhi Chowk at about 6 oclock in the morning and he had traveled on a tempo. He further deposed that on reaching his Mama, he talked to his mamas wife (Mami) and the children in the house. He also deposed that he remained there till 7 Oclock and along with two persons he had come back to the P. O. house on a tempo. He also deposed that at that time he could not talk to his father who had gone to Bhopal. He further deposed that since last 3 years, his family was living as a tenant in the house of Baldeo Sah whose residence situated at a considerable distance from there. At Para-15 of his cross-examination, he admitted that Sabour police Station situated at a distance of 20 steps from his house, but he had not gone to the police Station before going to Tilka majhi i. e his Mamas house. Then he said that after talking to his mama Mukund Chaudhary, he had given his statement before the Police. At Para-17 of his evidence, he has deposed that the relationship between his parents was good and that his Mummy was not on visiting terms with any other persons. He has deposed that there were three rooms in the house and he was sleeping in the house situated towards north. He also deposed that there was small boundary around his wall and things outside house could be seen from the window. He also deposed at Para-21 that in the night of occurrence at 8 Oclock he had taken his meal with his mother. He has also deposed that towards north of his house, there was house of one Mandhan and in the south, the house of Sukhdeo situated. He further deposed that those persons were not on visiting terms to his family, but there was not any kind of dispute with them. He also deposed that his mother was Inter Pass educated lady. On considering the evidence of this witness, it is found that his evidence is quite natural, proper and trustworthy. There is nothing in his evidence to discredit his testimony on any count. He also deposed that his mother was Inter Pass educated lady. On considering the evidence of this witness, it is found that his evidence is quite natural, proper and trustworthy. There is nothing in his evidence to discredit his testimony on any count. Though he happens to be the sole eye witness to the occurrence, but in the facts and circumstances of the case and on considering the intrinsic value of his evidence, it is felt that the evidence of this witness can be fully relied upon. 15. P. W.1 Anil Kumar Chaudhary is the Mamera brother of the deceased who was residing at Sabnour in Prem nagar locality. He deposed that he learnt about the occurrence in the ensuing morning and then he went to the P. O. house, the house of Baldeo Sah where his Bahnoi Sanjay Kumar was living as a tenant. He further deposed that he found the dead body of his sister Sanjita lying in the Angan of his house. He also depose that Lucky Kumar was present there who disclosed to him that in the preceding night at 12 Oclock hearing cries of his mother, he (Lucky Kumar) went into the Angan and saw that Badruddin (appellant) who had mounted over his mother (deceased) was pressing her neck and mouth and that seeing him (Lucky kumar), he (appellant) fled from there. This witness stated that he had reached the P. O. in the morning at 7 Oclock and that the police had recorded his statement. Thus this witness fully corroborates the evidence of sole eye witness Lucky Kumar who had disclosed to him what ever he had seen at the earliest time in the ensuing morning. 16. P. W.6 Manoj Kumar Chaudhary is the brother of the deceased who was living at Tilka Majhi, Bhalpur is the brother of the deceased and he deposed that he learnt about the occurrence in the ensuing morning, when his Bhagina, Lucky kumar (P. W.4) came and disclosed to him that Badruddin (appellant) had killed his mother and that there were other persons with him and that nobody had come there when he cried on seeing the occurrence. This witness had identified his signature (Ext-4/1) which he had put on the fard-beyan as witness to the recording of it. He also deposed that his brother (informant) had got information about the occurrence on phone. 17. This witness had identified his signature (Ext-4/1) which he had put on the fard-beyan as witness to the recording of it. He also deposed that his brother (informant) had got information about the occurrence on phone. 17. It may be mentioned here that the deceaseds son lucky Kumar (P. W.4) who is only eye witness to the occurrence has stated in his evidence that in the morning he had informed his Mama on phone about the occurrence. This witness stated that he had gone to the P. O. in the morning at 7:00 Oclock and that his Bhagina Lucky Kumar was also with him. 18. Thus it appears that on getting telephonic message from Lucky Kumar (P. W.4) and further learning from him (P. W.4) when he came to them, the P. Ws.5 and 6, the full brothers of the deceased went to the P. O. with Lucky Kumar and saw the dead body lying there. 19. P. W.2 Sanjay Chaudhary who is the deceaseds husband deposed that at the time of occurrence, he was not present in the house and he had gone out to Bhopal for appearing at one examination regarding recruitment in the Railways. He further deposed that next day i. e.5th June 2006 in the evening at 6 Oclock while he was at his native house at Biharsharif, he received information that his wife had been killed and learning this he came to his Sasural House at Tilka Majhi and found that the Post Mortem of the dead body had already been done and the dead body was lying in the Sasural house at Tilka Majhi. Thus this witness means to say that when he returned on the next day of the occurrence, at that time, Post Mortem of the dead body of his wife had already been done and the dead body was lying in his Sasural house, i. e. the house of his sisters brother (P. W.5 and 6) at Tilka Majhi. 20. It was natural that after the post mortem, in absence of deceaseds husband, the dead body was returned to deceaseds brothers who had brought it to their house at Tilka majhi for cremation purpose and, therefore, the husband (P. W.2)found the dead body in his Sasural house, i. e. brother-in-laws house at Tilka Majhi. 20. It was natural that after the post mortem, in absence of deceaseds husband, the dead body was returned to deceaseds brothers who had brought it to their house at Tilka majhi for cremation purpose and, therefore, the husband (P. W.2)found the dead body in his Sasural house, i. e. brother-in-laws house at Tilka Majhi. He has further deposed that on asking his son Lucky Kumar told him that in the night of occurrence, he heard the cries of his mother and then he went into the Angan and saw that Badruddin had climbed over her body and was catching hold her neck and that seeing him (Lucky Kumar), badruddin (appellant) had threatened him to go away from the place and thereafter, he, along with others who also were there, fled away from there. This witness has further deposed that he had sold his 4-stroke 3-wheeler to Badruddin (appellant), but he had not paid the price as a result of which a quarrel had also taken place earlier. Thus, the appellant was known to this witness and he had also identified him in the dock in court. He also deposed that due to non-payment of price of tempo some ill-feeling had prevailed between him and Badruddin (appellant ). He further deposed that his brother-in-law (P. W.5) had already lodged the fard-beyan before his arrival to the P. O. Some anguish between the husband of the deceased and appellant is stated due to non-payment of sale price of Auto by the appellant badruddin to deceaseds husband (P. W.2), but there does not appear to be any play of this anguish in the lodging of the F. I. R. because the F. I. R. had already been lodged by deceaseds brother in absence of deceaseds husband. 21. During argument, learned counsel for the appellant, raised some points to challenge the veracity of the witnesses who came to support the prosecution story. Firstly, it was argued that the sole eye witness (P. W.4, Para-15), son of the deceased has stated at Para/15 that Sabour Police Station situated at a distance of 20 steps from the P. O. house and that in the night of occurrence, he had not gone to the P. S. for informing about the occurrence. Firstly, it was argued that the sole eye witness (P. W.4, Para-15), son of the deceased has stated at Para/15 that Sabour Police Station situated at a distance of 20 steps from the P. O. house and that in the night of occurrence, he had not gone to the P. S. for informing about the occurrence. P. W.4 (Para-9) has stated that in the next morning he along with younger brother had gone to the house of their Mama situated at Tilka Majhi Chowk which is at a distance of 2 Kms. from there. It was argued that before going to his mamas residence, the P. W.4 did not go to inform to the Police station situated at 20 steps from the P. O. But on perusal of the f. I. R. (Ext-5) it appears that the actual distance of the P. O. from sabour Police Station is mentioned as 1 Km. Thus, the actual distance was not 20 steps but one Km. from the P. O. It appears that P. W.4 being a boy aged about 9 years only was not in know of the actual distance and, therefore, he stated the distance as 20 steps from the P. O. So far the question of appellants counsel about having not informed the Police Station before going to deceaseds brother it is found that the sole eye witness (P. W.4), the son of the deceased who had seen the occurrence and must have been weeping and wailing after the occurrence, cannot be expected that he will go to the P. S. , than going to his near and dear i. e. his two Mamas (P. W.5 and 6) who were available at some distance. Such a small boy aged 9 years is never expected to know about niceties and requirement to inform the Police at the earliest. This witness has acted in a very natural manner and there is no scope for taking any adverse inference against the prosecution on this ground that P. W.4 did not inform the Police immediately. 22. It was argued by the appellants counsel that P. W.4 (Para-42) has stated that when he came to the angan, he saw that the appellant had closed the mouth of his mother (deceased) and that she was trying to cry out. 22. It was argued by the appellants counsel that P. W.4 (Para-42) has stated that when he came to the angan, he saw that the appellant had closed the mouth of his mother (deceased) and that she was trying to cry out. It was further argued that this witness had stated in the examination-in-chief that hearing the cries of his mother, he woke up and then he had come to the Angan and had seen the appellant mounting over her mother and gagging her mouth. It was argued that when p. W.4 states to have seen the appellant for the first time, he had seen that the appellant had gagged the mouth of his mother. Therefore, it was argued that in such a case, it was never possible that the deceased would have cried and the deceaseds son (P. W.4) would have awoken on hearing the cries and, therefore, it was argued that it is not believable that the P. W.4 had come to the Angan on hearing the cries and to have seen the occurrence. In this context, it has to be kept in mind that when p. W.4 saw the appellant in the Angan for the first time, he saw the appellant had gagged her mouth but before that the appellant must have dragged her, thrashed her down and had mounted over her for a crime and in course of that she must have got an opportunity to cry for help and this cry was heard by her son (P. ,w.4) who woke up on hearing the cries. P. W.4 says that when he had seen the appellant over his mother she was crying and the appellant had closed her mouth. It is quite natural and possible that while the appellant was trying to gag the mouth of the deceased, she had got some opportunity through her efforts to raise some cries which was heard by her son (P. W.4 ). Thus the submission of the appellants counsel that the deceased had no opportunity or scope to raise a cry is not acceptable 23. Learned counsel for the appellant submitted that according to the case of prosecution, the younger brother of p. W.4, the sole eye witness was also sleeping in the house, but he has not been examined to support the case of prosecution. Learned counsel for the appellant submitted that according to the case of prosecution, the younger brother of p. W.4, the sole eye witness was also sleeping in the house, but he has not been examined to support the case of prosecution. It has to be remembered that P. W.4 was aged 11 years on 18th december 2008 when he was examined in Court and, thus, he was aged only 9 years on the date of occurrence (4th June 2006)He (P. W.4, Para-1) has also stated that his younger brother aged 5 years was also sleeping in the house. This sole eye witness (P. W.4) has further stated in his evidence that hearing the cry of his mother, he had awoken and had gone to the Angan where he had seen that the appellant had mounted over his mother lying in the Angan and he (appellant) was pressing her mouth and that seeing him (P. W.4), the appellant had threatened him and had fled away from there and thereafter, going to his mother, he (P. W.4) found that she was dead. Thus, the sole eye witness (P. W.4) comes to the P. O. on hearing the cry of his mother and sees the occurrence of killing of the deceased at the hands of the appellant. No doubt, the younger brother of P. W.4 was also sleeping in the house, but there is no evidence that he had also awoken on hearing any cry or to have come to the Angan with p. W.4. Besides this, when the sole eye witness (P. W.4) was himself a boy aged about 9 years and his younger brother was aged 5 years only. Thus, the younger brother even though he would have come to the Angan subsequently on being awakened by his elder brother (P. W.4), his examination would not have served any purpose, inasmuch as he was a boy of tender age and not of proper understanding to say about the occurrence. Moreover, the younger brother was not an eye witness to the occurrence. Therefore, the prosecution case is not adversely affected due to non-examination of younger brother of P. W.4. 24. Learned counsel for the appellant argued that there are some houses close to the P. O. house, but none of the neighbors have been examined to say that they had come to the p. O. house during the occurrence or shortly thereafter. Therefore, the prosecution case is not adversely affected due to non-examination of younger brother of P. W.4. 24. Learned counsel for the appellant argued that there are some houses close to the P. O. house, but none of the neighbors have been examined to say that they had come to the p. O. house during the occurrence or shortly thereafter. In this regard the evidence of the I. O. (P. W.7, Para-7) while mentioning about the P. O. discloses about the boundary of the P. O. house stating that in the north, there was barren land, in the south the house of Ramesh Kumar Dwivedi situated, in the east there was pitch road and in the west there was mango orchard of Sukhdeo sah. Thus, in three sides of the P. O. house, there was barren land, the road or mango orchard. Only towards the south, house of Ramesh Kumar Dwivedi was situated. There is no evidence that Ramesh Kumar Dwivedi or anybody else was present in the house at the time of occurrence. The crime was committed in the dead of night and the deceased was killed by way of gagging her mouth and nostrils. The deceaseds son woke up on hearing the cry of his mother. In such a situation when the deceased was killed in such a manner, it is not expected that she had any opportunity to cry loud and high to attract the people of distant neighborhood. The topography of the P. O. house also indicates that there was no close door neighbor. In such a situation it is not expected that anybody else than the inmates of the house had the opportunity of hearing the cry of the deceased or to have reached the P. O. house. Therefore, the non-examination of the neighbors of the deceased is not fatal to the case of the prosecution. 25. It was argued that there is delay in the lodging of the FIR. Learned counsel for the appellant submitted that the occurrence is said to have taken place in the night at 12:30 oclock. The written statement of the informant was recorded at 6:00 A. M. in the ensuing morning. After the recording of the written statement, the FIR was registered at 2:15 P. M. at Sabour police Station when the written statement was received at the police Station which situated at a distance of about 1 Km. The written statement of the informant was recorded at 6:00 A. M. in the ensuing morning. After the recording of the written statement, the FIR was registered at 2:15 P. M. at Sabour police Station when the written statement was received at the police Station which situated at a distance of about 1 Km. from the P. O. It has to be remembered here that the I. O. was the officer In-charge of the Police Station at the relevant time. The i. O. (P. W.7) came to the P. O. on receiving telephonic information that a lady had been killed near Shitala Sthan, sabour Poultry Farm. After coming to the P. O, the I. O. found the informant, the deceaseds son, the eye witness and the villagers assembled at the P. O. Then the I. O. recorded the statement of the informant. He also recorded the statement of the deceaseds son, the sole eye witness. He further recorded the statement of other witnesses. Thereafter the P. O. was inspected. The inquest report of the dead body was prepared, arrangements were made for sending the dead body for Post Mortem. The seizure list of the hair found in the closed fist of the deceased was also prepared. The house of the appellant in the locality was also raided and the appellant was found absconding. After doing all these, the I. O. returned to the Police Station and then the FIR was registered. All these activities must have consumed sufficient time and, thus, there does not appear to be any undue or abnormal delay in lodging of the FIR which was recorded that day at 2:15 P. M. on return of the I. O. with the informants written report to the Sabour Police Station. Therefore, any undue or abnormal delay in lodging the FIR. is not noticeable. 26. It was argued that the I. O. stated that he received telephonic information at the Police station and then he came to the P. O. and recorded the statement of the informant there. The learned counsel for the appellant submitted that the earliest information received through telephonic message has not been disclosed. is not noticeable. 26. It was argued that the I. O. stated that he received telephonic information at the Police station and then he came to the P. O. and recorded the statement of the informant there. The learned counsel for the appellant submitted that the earliest information received through telephonic message has not been disclosed. But this submission of the learned counsel is not acceptable, inasmuch as the I. O. (P. W.7, Para-1) has categorically disclosed that he had received a telephonic information that a lady had been killed near Shitala Sthan, sabour Poultry Farm and receiving this information, he along with Chaukidar and arm forces proceeded to the P. O. The telephonic message received by P. W.7 was not specific and it was in the nature of rumor. Therefore, it was quite natural for him to have proceeded for the P. O. for verification of the information received. In such view of the matters, there is no scope for an argument that any specific information received earlier had been suppressed. The only specific information is the written report of the informant which was recorded by the I. O. when he visited the P. O. first. 27. Learned counsel for the appellant argued that in this case any independent witness has not been examined. It was pointed out that the sole eye witness (P. W.4) is the son of the deceased. P. W.1 and P. W.5 (informant) and P. W.6 are the mamas of P. W.4 and P. W.2 is the husband of the deceased. According to the case of prosecution, P. W.4 , the son of the deceased, who was present in the house and who had awoken on hearing the cry of the deceased is the only eye witness who had seen the crime of murder committed by the appellant in the night of occurrence. It was in the early ensuing morning that P. W.4 along with his younger brother went to his Mamas and disclosed them about the occurrence and then they came to the P. O. with p. W.4. When the I. O. came to the P. O. on the basis of information through telephonic message, he found the informant (P. W.5) and recorded his statement. Thus, there is no eye witness in this case, excepting P. W.4, the deceaseds son. When the I. O. came to the P. O. on the basis of information through telephonic message, he found the informant (P. W.5) and recorded his statement. Thus, there is no eye witness in this case, excepting P. W.4, the deceaseds son. P. Ws.1, 2 and 4 are the Mamas of P. W.4 and they have testified what they had learnt from P. W.4 about the occurrence. Thus there is no scope for any other witness who could have said about the occurrence. The evidence of P. W.4, the sole eye witness has been discussed in detail in the preceding paragraphs and he has been found to be a fully reliable and trustworthy witness. In such view of the matters, there does not remain any scope for drawing adverse inference against the prosecution due to non-examination of any other witness as independent witness. 28. Learned counsel for the appellant argued that the prosecution admits that the deceaseds husband had sold his tempo to the appellant and there was some dispute regarding price of tempo which was not paid to the husband of the deceased and, therefore, it was argued that the appellant had been implicated falsely due to this grudge. In this context, this has to be remembered that the deceaseds husband (P. W.2) was not present in the P. O. house in the night of occurrence, as he had gone out to Bhopal for appearing at a recruitment examination in the railways. The deceaseds husband had come to the P. O. on the 2nd day after the occurrence and he himself learnt about the occurrence from P. W.4, who is his son. The deceaseds husband is not the informant of the case and he had returned to the P. O. house on the 2nd day of the occurrence, when FIR had already been instituted and the P. M. of the deceased had also been done. The deceaseds husband had not done anything in lodging of the FIR. The occurrence had taken place in his absence. Thus, there is no scope for any inference that the prosecution case was initiated as a result of any grudge in the deceaseds husband due to the quarrel as a result of non-payment of the price of the tempo by the appellant. 29. The occurrence had taken place in his absence. Thus, there is no scope for any inference that the prosecution case was initiated as a result of any grudge in the deceaseds husband due to the quarrel as a result of non-payment of the price of the tempo by the appellant. 29. Learned counsel for the appellant referred to column 7 of the inquest report (Ext-6) and pointed out that the dead body was found wearing a yellow green Sadi, cream colour petty coat and black colour blouse. Referring this it was submitted that the clothes were found well arranged on the body, which did not indicate any violence committed on the body. But the learned A. P. P. referred to the evidence of the I. O. (P. W.7, Para-3) that he had found three hairs one 7 inch long in the left fist and two 1 inch long each in the right fist of the deceased and it was submitted that the presence of heirs in the fists of the deceased indicated that she had struggled the assailant and in course of struggle, the hairs were caught hold of in the fists. The learned A. P. P. also referred to the evidence of the doctor (P. W.3, Para-2) that reddish fluid was coming out of the right angle of the mouth. Nail bed and lips were cyanosed. The face conjunctiva were deeply congested and there was one cescentic abrasion 1"x3"x1/8" on upper part of left side of face 1" inner to left ear and one abrasion 1/4"x1/8" was present on outer aspect of left side of face near its middle and one another bruise 1"x1/3" was present on left side of chin and on cutting skin over nose, underlying tissues were bruised near its opening and the mucosa of lower lips were abraded in an area of 1"x1/4" near its middle and on dissection of neck and face, the mucosa of larynges and trachea were deeply congested and contained reddish fluid. On the basis of these, the learned A. P. P. argued that the abrasion, bruise on the face and lips as above and also the congestion of mucosa of larynges and trachea clearly indicated that by application of violent force by some soft and blunt object, such as, fingers and palm of assailant or assailants, the deceased was smothered to death by closure of mouth and nostrils as has also been opined by the doctor (P. W.3, Para-4 ). Thus, there is ample evidence to show the killing of the deceased by way of smothering her. The evidence of the sole eye witness (P. W.4) as also corroborated by the P. Ws.1, 4 and 5 before whom he had disclosed about the occurrence goes to prove beyond doubt that it was the appellant who smothered the deceased to death. The learned A. P. P. referred to the evidence of doctor (P. W.3, Para-3) that presence of blood and seminal stains were found on the panty and the 4 pieces of clothes under the panty and they were sent to the Forensic Science Laboratory for chemical examination. He further referred to the evidence of the i. O. (P. W.7, Para-11) that the report of the F. S. L. (Ext-9) was received. This report of the F. S. L. shows that blood mixed semen was detected on the panty (Janghia) marked Ext-A/1. The deceased was wearing the Janghia at the time the inquest report prepared and the P. M. was done. Semen is whitish liquid containing sperm produced by males. In this case the FIR was originally instituted for offences under Sections 376 and 302/34 ipc but on conclusion of investigation, charge-sheet was submitted only for the offence under Sec.302 IPC against the accused and he has been tried and convicted, as above, in the circumstance that the appellant was found mounted over the deceased and in that posture he killed her by smothering her. In this situation, finding of semen on the panty of the deceased indicates that the appellant had mounted on the deceased not only for the purpose of smothering her but it was done in furtherance of his lustful attempt when the deceased had struggled to the fulfilment of lustful motive and attempt. 30. In this situation, finding of semen on the panty of the deceased indicates that the appellant had mounted on the deceased not only for the purpose of smothering her but it was done in furtherance of his lustful attempt when the deceased had struggled to the fulfilment of lustful motive and attempt. 30. Thus, the evidence, facts and circumstances prove it beyond doubt that the appellant had smothered the deceased to death when she had struggled to protect herself from the lustful motive and attempt. The offence committed by the appellant is, in deed, an offence of murder. Therefore, he is convicted under section 302 IPC. 31. The appellant has been sentenced to death by the trial court. For awarding death sentence, this has to be established that the case comes in the category of rarest of rare cases. No doubt, the offence committed by the appellant is grave and diabolic, but in view of circumstances that on seeing the deceaseds son the appellant simply threatened him not to disclose it to any one else he would be killed, but the appellant did not harm or cause any injury to the deceaseds son in order to remove him from the scene as a witness it appears that the offence committed by the appellant does not fall in the category of rarest of rare cases. The situation that the offence does not come in the category of rarest of rare cases, it will not merit awarding of death sentence of the appellant. Now the only course left to this Court is to award sentence to life imprisonment which is the only substitute to the sentence of death. 32. Considering the provisions of Sections 433 and 433 (A) of the Code of Criminal Procedure, a sentence of life imprisonment after statutory remission and commutation may come to about 14 years of imprisonment. In view of the gravity of the offence and that, too, when it is being awarded as a substitute to death sentence awarded by the trial court, the sentence of 14 years of imprisonment does not commensurate to the offence committed by the appellant. 33. Being faced with a similar situation, the Honble supreme Court in the case of Swamy Shraddananda Vs. 33. Being faced with a similar situation, the Honble supreme Court in the case of Swamy Shraddananda Vs. State of karnataka, reported in (2008)13 SCC 767 held that it is within the jurisdiction of the appellate court that while commuting death sentence to life imprisonment, it may, in view of gravity of the offence, direct that the appellant will not be released from prison till the end of his life. Para-92 of the judgment of the honble Supreme Court (Supra) is very relevant in this regard and it is quoted as below: "para-92: The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at he same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Courts option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the option and to take over what, as a matter of fact, lawfully belongs to the Court i. e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. " 34. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. " 34. Thus, the Honble Supreme Court has laid down that when the case just falling short of the category of rarest of rare, the death sentence as awarded by the trial court is being commuted by the appellate court to a sentence of life imprisonment which, when considered as a simplicitor life imprisonment and which may in view of the provisions of sections 433 and 433 (A) of the Code of Criminal Procedure, come to a sentence of 14 years only, in view of the gravity of the offence may be extended to actual period of imprisonment for the whole life of the convict. 35. In the instant case, the sentence of death as awarded by the trial court to the appellant is being commuted to a sentence of life imprisonment due to its falling short of the category of rarest of rare. But considering the term of simplicitor life imprisonment which practically comes to an imprisonment for 14 years, it does not commensurate to the gravity of the offence committed by the appellant. Therefore, it is hereby ordered that the appellant will undergo a sentence of life imprisonment, but he will not be released before expiry of 20 years of imprisonment. 36. Thus, the appeal is dismissed and the death reference is answered in the negative, but with the modification in the sentence, as indicated above.