JUDGMENT 1. - The Murder Reference No. 1/2010 has been made by the learned Addl. Sessions Judge (Fast Track) No. 1, Bikaner while convicting the accused Manoj Yadav for the offences under Sections 302 and 201, IPC and acquitting him from the charges under Sections 366 and 363/34. IPC. Briefly stated the facts of the case are that one Uttam Chand (PW-1) lodged a written report at the Police Station, Kotgate, Bikaner on 21-1-2006 alleging inter alia that he received a call from the Manager of the Bilkaner Guest House, Dhobi Mohalla, Bikaner, who informed the first informant that somebody call him in the Guest House saying that he was calling from the crime branch. Manoj Sharma has informed that the person named Rajesh Sharma who was living in the Guest House in the month of December and was having two ladies with him, who probably murdered the lady and the dead body was lying in the house of Uttam Dhobi which was taken on rent. The first informant went to the Guest House and called back on the number from which call had been made. It was found that the call had been received from Riva M.P. The matter was thereafter reported to the police and the lock of the room of Kishan Lal Dhobi was broken and on search being made, stink of dead body was coining from the plastic bedding roll lying in the room. The bedding roll was brought to the hospital and on opening the dead body of a lady was found which was having injuries. The lady was being accompanied with another girl and a man who had taken the first floor of the house of Uttam Dhobi on rent on 10-12-2005 for monthly rent of Rs. 1300/-. It was further alleged that the dead body was of one of the two females who was living in the room with her companion who murdered her and left the body in the room. It has been further alleged that the occupant of the room can be identified and that the man had given out his name to be Rajesh Sharma resident of Aakola. On the basis of this report, FIR No. 22/06 was registered and investigation commenced. It has been further alleged that the occupant of the room can be identified and that the man had given out his name to be Rajesh Sharma resident of Aakola. On the basis of this report, FIR No. 22/06 was registered and investigation commenced. After conclusion of the investigation, the charge-sheet was filed against the appellant and the co-accused Jaishri wife of the appellant for the offences under Sections 366, 366/34, 302 and in alternative under Sections 302/34, 201 and in alternative under Sections 201/34, IPC. The charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Bikaner, from where the same was committed to the Court of learned Sessions Judge, Bikaner, who transferred the same to the Court of learned Addl. Sessions Judge (Fast Track) No. 1, Bikaner. Charges were framed against accused-appellant Manoj Yadav as well as co-accused Jaishri for the aforesaid offences. They pleaded not guilty and claimed trial. At the trial, the prosecution produced as many as 23 witnesses in support of its case. During the course of trial, accused Jaishri expired while in judicial custody on 11-9-2009 and thus proceedings against her were dropped on 25-9-2009. In the statement under Section 313, Cr.P.C., the accused denied the allegations of the prosecution but did not lead any defence. At the conclusion of trial, learned trial Court acquitted the appellant Manoj Yadav from the charge under Section 366, IPC and has proceeded to convict the appellant for the offence under Sections 302 and 201, IPC and has sentenced the appellant to five year's R.I. on count of Section 201, IPC and a fine of Rs. 300/- and in default thereof, to further undergo three months imprisonment and on the count of Section 302, IPC, the appellant has been sentenced to death. 2. Murder Reference No. 1/2010 has been made by the learned trial Judge seeking confirmation of the death sentence, while Jail Appeal No. 26/2010 has been filed by the appellant from the jail, whereas Appeal No. 97/2010 has been filed as a represented appeal by Shri S.R. Sharma, Advocate. 3. Assailing the judgment of the learned trial Judge, Shri Sharma, learned counsel for the appellant has submitted to this Court that in this case, the appellant has wrongly been convicted by the trial Judge. 3. Assailing the judgment of the learned trial Judge, Shri Sharma, learned counsel for the appellant has submitted to this Court that in this case, the appellant has wrongly been convicted by the trial Judge. The circumstantial evidence which has been relied upon by the learned trial Judge in convicting the appellant is not of such a clinching nature so as to leading to the irrefutable conclusion of guilt against the appellant. He has further submitted that the rent note (Ex. P.Q.1) dated 10-12-2009 relied upon by the prosecution was, as a matter of fact, concocted one and that the accused had been made to sign the same while in custody. It has further been submitted that the evidence of identification as alleged by the prosecution was flimsy and there was no evidence to conclude that the appellant was the person responsible for the death of Hem Lata. It has further been argued that the cause of death of Hem Lata, as per the doctor's evidence, was judicial and as such the charge under Section 302, IPC could not be sustained against the appellant. The learned counsel for the appellant also submitted that it has not been proved that the dead body was of Hem Lata. 4. On the question of sentence, Shri Sharma has argued that the appellant as well as Jaishri co-accused, were allegedly living together for the last more than an year and that they were living together with their free will and consent. It has further been argued that it was not possible to conclude as to who had actually committed the murder of deceased Hem Lata. Since as per Shri Sharma, learned counsel for the appellant, co-accused Jaishri had expired during the course of trial, therefore, charge under Section 34 could not survive and it would not be just and proper to convict the appellant for the offence of murder and sentenced him to death as it was not a case falling within the category of rarest of rare case as defined by Hon'ble the Apex Court in the judgment of Bachan Singh. 5. Per contra, the learned Public Prosecutor has supported the judgment of the trial Judge and has submitted that there is unimpeachable evidence on record of the case to show that the appellant was the person who had taken the room on rent of Uttam Chand on rent. 5. Per contra, the learned Public Prosecutor has supported the judgment of the trial Judge and has submitted that there is unimpeachable evidence on record of the case to show that the appellant was the person who had taken the room on rent of Uttam Chand on rent. He has further submitted that the testimony of PW-7 Sunil, PW-8 Leela Dhar. PW-13 Mahesh Kumar, PW-14 Smt. Rajkumari and PW-22 Manoj Sharma clearly reveals that the appellant was living with the deceased and Jaishri since quite a long time and that the appellant after having taken the house of witness Uttam Chand on rent, had murdered Hem Lata by throttling which fact has been proved by the testimony of the doctor PW-12 O.P. Saini and thus, there was complete chain of evidence and none of the link of the circumstantial circumstances has been broken. He has argued that complete chain of circumstances proved by the prosecution clearly established the guilt of the accused beyond any manner of doubt. Thus there was strong circumstance against the appellant that the appellant was last seen together with the deceased. 6. We have heard the arguments advanced on behalf of the counsel for the appellant as well as the learned P.P. 7. We shall first deal with the argument advanced on behalf of the appellant that whether the death in this case was homicidal or was suicidal. We have carefully perused the testimony of PW-12 Dr. O.P. Singh and PW-16 Dr. Bhupendra Sharma and other circumstantial evidence available on record. It is not in dispute that the dead body of Hem Lata was found in a plastic bedding roll in the alleged room. Dr. O.P. Saini while conducting post-mortem and preparing the Post-Mortem Report (Ex. P46) stated that there were signs of the strangulation on the neck, of the deceased. A hide-bone was tilting from the left and that there was hematoma on the neck. When the body of the deceased has been found inside the room and the room has been locked from outside, the argument that the deceased might have committed suicide cannot stand to reason, firstly, no signs of commission of suicide were found when the room was opened and secondly, it is inconceivable that as to how a lady, after suicide, could get inside the bed roll when no life was left. Therefore, the argument regarding the death of Hem Lata being suicidal cannot be accepted and is repelled. 8. The next argument which has been made is with regard to identification of the body. We have carefully perused the testimony of the witnesses PW-4 Poonam Chand, P-7 Sunil, P-8 Leela Dhar, PW-13 Mahesh, PW-14 Raj Kumari and PW-22 Manoj Sharma. From a careful perusal of the testimony of these witnesses, it is established beyond any manner of doubt that the accused Manoj initially stayed at Udaipur with deceased and Jaishri under the name Rajesh Sharma. 9. PW-13 Mahesh has identified photograph of the deceased Ex. P.20 and has stated that the deceased was the person who stayed in his house with Rajesh Sharma and his wife and the photograph Ex. P.20 was that of the deceased. Likewise, PW-14 Raj Kumari has also given a similar statement that the accused also stayed in the house of Rajkumari under the name Kuldeep and the deceased was also staying with him in the very house. Raj Kumari also identified the photograph Ex. P.20 of the deceased named her to be Gudiya. After leaving Udaipur, the accused along with co-accused Jaishri and the deceased came to Bikaner where they stayed in the Bikaner Guest House, Bikaner and the entry regarding their stay in the Guest House has been made by PW-8 Leela Dhar, who also identified the accused as well as the deceased, as having stayed in the Guest House. Photograph Ex. P.20 of the deceased has been positively identified by the witnesses as the girl who was accompanying the appellant to Udaipur, at Bikaner Guest House and at the house of Uttam Chand Dhobi. PW-9 Leela Dhar had also deposed that after the appellant, co-accused Jaishri and the deceased checked-out from the Guest House, they started living in the house of Uttam Chand Dhobi. After that, the appellant, who was staying under the name of Rajesh Sharma, approached the witness for some product of RCM and on the request of the appellant, the witness had gone to the house of Uttam Chand Dhobi where the accused along with two ladies including the deceased was staying. When the witness went to the house, he saw that the other lady (Jaishri) was cooking food in the kitchen and the appellant and the deceased were playing cards. When the witness went to the house, he saw that the other lady (Jaishri) was cooking food in the kitchen and the appellant and the deceased were playing cards. No cross-examination on this issue has been made from the witness. 10. PW-18 Guru Bhupendra Singh, the Investigating Officer, has recovered educational certificates of deceased, i.e. her marks-sheet and certificates from Udaipur at the instance of the appellant and the co-accused Jaishri. These circumstances irrefutably lead to the conclusion that it was the appellant and co-accused Jaishri who were staying with the deceased at different places since the last few months prior to the occurrence. They initially stayed at Udaipur in the house of PW-13 Mahesh Kumar and PW-14 Raj Kumari and thereafter they came to Bikaner where they stayed in the Bikaner Guest House from 8-12-2005 to 10-12-2005. The factum of the staying of the accused in the Guest House has also been corroborated by the report of the Handwriting Expert (Ex. P.73), whereby, the signatures of the appellant on the resister of the accused under the name of Rajesh Sharma have been found to be tallying with the specimen writing of appellant Manoj Yadav. These circumstances taken together lead to an irrefutable conclusion, forming a complete chain of circumstances, that the appellant, his companion Jaishri and the deceased were staying together soon before the death of Hem Lata, whose photograph has been exhibited as Ex. P.20 at the trial. It has also been established that the appellant had taken the room of Uttam Chand Dhobi on rent on 10-12-2005 and in the very said room, the dead body of Hem Lata was found. It has also been established that the accused appellant and co-accused, after committing murder of Hem Lata, locked the body inside the room and went away. The body was recovered on 21-1-2006 in a decayed, condition and the body, has been identified to be that of Hem Lata. Once the prosecution has established these circumstances, then by virtue of provisions of Section 106 of the, Evidence Act, the happenings inside the rented room comes within the exclusive knowledge of the accused. 11. Section 106 of the Indian Evidence Act, 1872 reads as under:-- 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person; the burden of proving that fact is upon him. 12. 11. Section 106 of the Indian Evidence Act, 1872 reads as under:-- 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person; the burden of proving that fact is upon him. 12. Therefore, the burden to prove as to how and under what circumstances Hem Lata expired shifted on the accused appellant and the appellant miserably failed to discharge the burden cast upon him. Reference in this regard may be made to the judgment of the Hon'ble Apex Court reported in the case of Trimukh Maroti Kirkan v. State of Maharashtra, ( (2006) 10 SCC 681 ) : (2007 Cri LJ 20). 13. Looking to overwhelming evidence of the prosecution against the appellant, the conviction of the appellant has been challenged feebly by the counsel for the appellant and we feel fairly so. We, therefore, upheld the conviction of the appellant as recorded by the learned trial Judge. 14. Coming to the question of sentence, the learned trial Judge has sentenced the appellant to death looking to the criminal background of the appellant. The learned trial Judge has taken note of the fact that the appellant had earlier been convicted for the offence under Section 302, IPC in Sessions Case No. 110/93 by the learned Addl. Sessions Judge, Ujjain and, therefore, the learned trial Judge has held that the accused was a dangerous person and, if permitted to remain alive, would endanger the society and thus the sentence of death has been awarded to the appellant. In our view, the said opinion taken, cannot be said to be correct. As has been considered above and as has been found by the learned trial Judge, the accused and the deceased were living together for almost three years prior to the occurrence and the learned trial Judge has himself acquitted the accused from the charge under Section 366. IPC, because of this fact only. It appears that something untoward took place within the four walls of the room to which led to murder of Hem Lata. What transpired in the four walls, has not been disclosed because it was exclusively in the knowledge of the accused but in absence of an evidence to this effect, we cannot hold that the case falls within the category of the rarest of the rare cases. What transpired in the four walls, has not been disclosed because it was exclusively in the knowledge of the accused but in absence of an evidence to this effect, we cannot hold that the case falls within the category of the rarest of the rare cases. There was neither any motive for the accused to have committed the murder of Hem Lata nor it can be conclusively said that the accused took undue advantage of some situation or acted in an extreme cruel manner so as to impose penalty of death. The view taken by the learned trial Judge that since the accused was already convicted previously for the offence of committing murder and, therefore, he should be convicted by death penalty, is also not acceptable because such a situation was prescribed by the statute by virtue of Section 303, IPC, but the Hon'ble Apex Court in the judgment of Mithu v. State of Punjab (, AIR 1983 SC 473 ) has struck down the said provision as being unconstitutional. Therefore, in our view, when the provision of death penalty in the event of previous conviction committing murder is unconstitutional, then the award of death penalty to the accused just because the murder has been committed during the period when the accused was already a convict for earlier murder. 15. Hon'ble the Apex Court in the large number of the cases has held that death penalty should only be imposed in the rarest of the rare cases. Reference may be had to the cases reported in Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ) and Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ) 16. We, therefore, reject Murder Reference No. 1/2010 and accept the appeal of the appellant filed by Manoj Yadav partly and while committing the sentence of the death as awarded by the learned trial Judge, we direct that the sentence awarded to the appellant under Section 302, IPC shall stand converted to imprisonment for life with a fine of Rs. 10,000/- and in default thereof, to further undergo six months' imprisonment. The Hon'ble Apex Court in the judgment reported in Swamy Shraddananda alias Murli. 10,000/- and in default thereof, to further undergo six months' imprisonment. The Hon'ble Apex Court in the judgment reported in Swamy Shraddananda alias Murli. Manohar Mishra v. State of Karnataka (, AIR 2008 SC 3040 ) , while commuting the death sentence to life imprisonment, has directed that the accused will not be released from the term for the rest of the life or for the actual terms as specified in the order. Thus following the said judgment and looking to the nature of the act of the accused, we substitute the death sentence awarded to the appellant by the learned trial Judge to imprisonment for life and direct that he shall not be released from the prison till rest of his life, that is for the actual term of life sentence awarded to him. The appeal stands disposed of with the aforesaid direction and observations.Reference Rejected/Appeal partly allowed. *******