JUDGMENT : G.K. Vyas, J. The Special Additional Sessions Judge (Women Atrocities & Dowry Prohibition) Cases, Sri Ganganagar, made death reference for confirmation of capital sentence passed vide judgment dated 10.01.2013 in Session Case No.15/2010, whereby accused, Sonu @ Sohanlal, was convicted for offences under Section 302 and 376 IPC and following sentence was passed against accused appellant-Sonu @ Sohanlal:- 302 of IPC - Capital punishment. 376 of IPC - Life imprisonment along with fine of Rs.1000/-. In default of payment of fine to further undergo six months’ additional simple imprisonment. 2. The accused appellant, Sonu @ Sohanlal, preferred appeal against the judgment dated 10.01.2013 passed by learned Special Additional Sessions Judge (Women Atrocities & Dowry Prohibition) Cases, Sri Ganganagar, in Session Case No.15/2010, whereby the accused appellant was convicted for offence under Sections 302 and 376 of IPC and death sentence is passed against him for commission of offence u/s 302 and sentence for imprisonment for life has been imposed against him for committing offence u/s 376 of IPC. 3. In the death reference made by the Special Addl. Sessions Judge (Women Atrocities & Dowry Prohibition) Cases, Sri Ganganagar, and in the appeal filed by the accused appellant, the judgment dated 10.01.2013 is under challenge, therefore, we are deciding both the case by this common judgment. 4. Briefly stated, the facts of the case are that on 17.05.2010 at 03.15 PM the complainant PW.1- Mangilal, submitted a written report (Ex.P/1) stating therein that he is resident of Ward No.19 of Sadulsahar. Before two years, Sonu Kumar @ Sohan Lal, resident of Karanpur, came at Sadulsahar for employment and he was employed at the shop of one Laxmichand, since then he is residing in Sadulsahar. According to complainant, Sonu Kumar became friend of him and used to visit his house and due to good relations he was treating him as brother. As per allegations of the complainant, when accused Sonu used to visit his residence, he (accused) developed illicit relations with his sister, Shalu. When above fact came to the knowledge of the complainant, then he raised objections and instructed Sonu Kumar not to keep relations with his sister, but Sonu Kumar did not stop his activities of illicit relation with his sister, Shalu. When above fact came to the knowledge of the complainant, then he raised objections and instructed Sonu Kumar not to keep relations with his sister, but Sonu Kumar did not stop his activities of illicit relation with his sister, Shalu. On 17.05.2010 when complainant’s mother and sister Manju and brother-in-law, Dharampal went Padampur for exploring relation for the marriage of Shalu, the complainant and his brother, Kishan, both left the house for some work in the market. When all the family members went out of the home, the sister of complainant, Shalu, and Smt. Pinki, wife of his younger brother remained in the house. According to complainant, accused Sonu Kumar called Shalu at 12 O’clock in the forenoon when she was at home and took her in his rented house situated in Ward No.16 of Sadulsahar. The complainant made allegations that Sonu @ Sohanlal committed murder of his sister in his house while inflicting injuries by sharp edged weapon ‘Gandasa’. On that day, at about 01.30 PM, when complainant came back to his house for taking meal, wife of his younger brother Pinki informed that Shalu was called by Sonu Kumar and Shalu went out from house with Sonu Kumar. 5. Upon receiving such information, complainant made search of his sister, Shalu, and according to him one Puranram S/o Gyarsa Ram met him and informed that he has seen his sister and Sonu Kumar at 12 O’clock near the school. The complainant further stated that after getting such information another witness, namely, Sahabram S/o Sukhpal, who was going to his house for taking meal, informed in the way that I have seen Sonu Kumar and one girl when they were going on foot towards Ward No.15. After receiving the aforesaid information, the complainant went to the rented house of Sonu Kumar (accused) and saw that room was closed from outside. The allegation of the complainant is that he made search from outside the room and saw the body of Shalu was lying dead on the floor of room and blood over the body. 6. Upon aforesaid written-report (Ex.P/1) submitted by the complainant, the S.H.O., Police Station-Sadulsahar, registered formal FIR No.140/2010 (Ex.P/2) on 17.05.2010. After registration of FIR, the Investigating Officer immediately went to house of Sonu Kumar and after inspection prepared site plan and recorded details of the place of occurrence vide Ex.P/3 and Ex.P/3A. 6. Upon aforesaid written-report (Ex.P/1) submitted by the complainant, the S.H.O., Police Station-Sadulsahar, registered formal FIR No.140/2010 (Ex.P/2) on 17.05.2010. After registration of FIR, the Investigating Officer immediately went to house of Sonu Kumar and after inspection prepared site plan and recorded details of the place of occurrence vide Ex.P/3 and Ex.P/3A. The ‘Panchnama’ (Ex.P/4) of the dead body was prepared on spot. Blood stained pillow cover and bed-sheet were taken in possession vide Ex.P/5. Blood stained sleeper of Shalu were also taken in possession vide Ex.P/6. One piece of blood stained ‘Chunri’ lying on the fan, was also taken vide Ex.P/7. The blood spread on the floor was also collected in the bottle vide Ex.P/8. All the articles were sealed on the spot. The clothes which deceased, Shalu was wearing viz. Salwar, underwear and other clothes, were also taken in possession vide Ex.P/9 and sealed. The dead body of deceased was taken to hospital for postmortem by the medical officer in the Govt. Hospital, Sadulsahar. After conducting postmortem the body was handed over to the complainant vide Ex.P/10 for cremation. The photographs of the dead body were also taken. 7. Accused, Sonu @ Sohanlal was arrested vide Ex.P/24 at 07.10 PM on 17.05.2010 and the clothes which he was wearing at the time arrest were taken in possession and sealed vide Ex.P/25. After arrested, upon the information furnished by accused Sonu @ Sohanlal, the weapon of offence ‘Iron-Barcha’ was recovered vide Ex.P/22. The site plan of place from where the weapon was recovered was prepared vide Ex.P/23 and Ex.P/23A. All the recovered articles were sent to the FSL, Jaipur vide Ex.P/31 for examination. In the investigation, postmortem report of Shalu (Ex.P/32) was obtained. During investigation an application (Ex.P/36) was filed before the Judicial Magistrate, Sri Ganganagr, for recording the statement of accused under Section 164 Cr.P.C. in pursuant of that, confessional statements of accused were recorded vide Ex.P/40, in which, the accused, Sonu @ Sohanlal accepted the fact of committing murder and inter-course with the deceased, therefore, Section 376 IPC was also added and medical examination of his potency was got conducted by the doctors and report (Ex.P/34) prepared by the doctor was taken on record. The vaginal swab and smear slide of deceased were also taken at the time of postmortem and sent to the FSL, Jaipur, from where report (Ex.P/33) was received and other chemical examination report (Ex.P/37) was also received from FSL. 8. After completing the investigation the SHO, Police Station Sadulsahar, filed charge sheet against the accused appellant u/s 302 and 376 of IPC in the court of Judicial Magistrate, Sadulsahar, Sri Ganganagar, from where the case was committed to the court of Sessions Judge, Sri Ganganagar for trial but later on it was transferred to the court of Addl. Special Sessions Judge, Sri Ganganagar, for trial. 9. The learned trial court after providing an opportunity of hearing on the basis of evidence on record framed charges against the accused appellant for committing offence under Sections 302 and 376 of IPC, but the accused appellant denied the charges levelled against him and prayed for trial. 10. In the trial, statements of 16 prosecution witnesses were recorded and 41 documents were exhibited from the prosecution side and Articles 1 to 10 were produced in support of prosecution case. 11. After recording the evidence of the prosecution, statements of accused appellant were recorded under Section 313 Cr.P.C., in which accused Sonu @ Sohanlal denied all the allegations levelled against him by the prosecution witnesses and said that all the recoveries which are alleged to be made by the investigating officer, are false and no blood was found upon his clothes. It is also submitted that no willingness was shown by him for recording his statements under Section 164 Cr.P.C. by the Magistrate. The police gave threat that you should make confession before the Magistrate in your statement, therefore, whatever confessional statement is recorded by the magistrate under Section 164 Cr.P.C., were not recorded as per his free will because he was compelled by the police to give such type of confessional statement. In defence three documents were exhibited and no oral evidence was produced by the accused appellant inspite of granting an opportunity. 12. In defence three documents were exhibited and no oral evidence was produced by the accused appellant inspite of granting an opportunity. 12. The learned trial Judge thereafter heard the arguments and framed following question for deciding the case, which reads as infra: ^^D;k vfHk;qDr us fnukad 17-5-2010 dks le; yxHkx fnu esa 12%00 cts ls 1%30 ih ,e ds e/; ljgn ekStk okMZ uacj 16 lknqy’kgj esa /keZohj ‘kekZ ds vkoklh; edku esa vius fdjk; ds dejs esa dqekjh ‘kkyw ds lkFk mldh bPNk ds fo#) vkSj lEefr ds fcuk eSFkqu djds cykRlax fd;k rFkk lk’k; ;k tkudkjh j[krs gq;s dqekjh ‘kkyw ds cNsZ dh flj o ‘kjhj ij ekjdj mldh e`R;q dkfjr djds gR;k dkfjr dh\** 13. The learned trial court after hearing final arguments convicted the accused appellant for the offences under Sections 302 and 376 of IPC and passed death sentence for offence u/s 302 IPC and life imprisonment for offence u/s 376 of IPC vide judgment dated 10.01.2013 in Session Case No.15/2010 and made reference for confirmation of death sentence. The accused appellant preferred appeal and challenged the judgment dated 10.01.2013 on various grounds. 14. Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Nishant Bora and Mr. Arun Kumar, vehemently argued that the entire prosecution case is based upon circumstantial evidence and there is no eyewitness of the incident. The prosecution has relied upon the confessional statement of the accused appellant recorded under Section 164 Cr.P.C. (Ex.P/40) by the learned Judicial Magistrate, First Class, Sri Ganganagar (Mr. PremSingh Dhanwal), however, the said statements cannot be relied upon for the purpose of conviction because the same were not recorded as per willingness of the accused appellant because on the date of recording the statements under Section 164 Cr.P.C. by the Magistrate, for all purposes, the accused appellant was in the police custody and if any confessional statement is recorded by the Magistrate, when accused appellant was in police custody, the same cannot be relied upon so as to hold accused appellant guilty for committing offence of murder and rape. It is also argued that entire case is based upon the evidence of last seen and confessional statement recorded under Section 164 Cr.P.C., but the prosecution has miserably failed to prove both these grounds, because two witnesses of last seen, viz. It is also argued that entire case is based upon the evidence of last seen and confessional statement recorded under Section 164 Cr.P.C., but the prosecution has miserably failed to prove both these grounds, because two witnesses of last seen, viz. PW.4 Puran Ram and PW.11, Sahabram, are the planted witness so as to prove the fact of last seen. Therefore, their testimony deserve to be discarded for the simple reason that presence of both these witnesses is seriously doubtful. It is also argued that one Pinki was most important witness of the prosecution whose name is mentioned in the FIR has not been produced by the prosecution to prove the fact that deceased Shalu left the house and went with Sonu Kumar. Therefore, in absence of reliable evidence of Smt. Pinki, whose presence in the house, is disclosed in the FIR by the complainant, it cannot be said that prosecution has proved its case beyond reasonable doubt. 15. Learned counsel for the accused appellant further argued that Magistrate can record the statements under Section 164 Cr.P.C., but it is mandatory for him to record confessional statement as per procedure laid down u/s 281 Cr.P.C. A bare perusal of the statement (Ex.P/40) would reveal that those statements were recorded in violation of Section 281 Cr.P.C. Learned counsel for the appellant invited our attention towards the fact that the accused appellant was arrested at 07.10 PM on 17.05.2010 and he was produced before the Magistrate for taking police remand on the next day i.e. on 18.05.2010 at 04.45 PM. The learned Civil Judge (Jr. Division)-cum-Judicial Magistrate, First Class, Sadulsahar, granted two days police remand and directed the investigating officer to produce the accused before the court at 12.00 PM on 20.05.2010. It is also submitted that in between the said period, an application was filed by the investigating officer before the learned Judicial Magistrate, Sri Ganganagar, on 18.05.2010 for recording the statements of accused u/s 164 Cr.P.C. upon which the learned Magistrate passed an order on 18.05.2010, whereby the investigating officer was directed to produce accused Sonu Kumar, for recording his confessional statement on 19.05.2010 at 10.00 AM. 16. While inviting our attention towards (Ex.P/36) application filed by the investigating officer, in which it was prayed that the accused has made confession during investigation, therefore, his statements may kindly be recorded. 16. While inviting our attention towards (Ex.P/36) application filed by the investigating officer, in which it was prayed that the accused has made confession during investigation, therefore, his statements may kindly be recorded. Admittedly, on 18.05.2010, Sonu Kumar was in police custody and remand for police custody was given by the learned Magistrate up to 20.05.2010 but the investigating officer produced the accused appellant before the concerned Magistrate on 19.05.2010 at 07.55 AM and on date, accused Sonu Kumar was sent to judicial custody up to 31.05.2010 but instead of sending the accused appellant to judicial custody, the investigating officer straightway produced the accused appellant for recording his statement on the same day before the Judicial Magistrate No.1, Sri Ganganagar on 19.05.2010 where his confession statement was recorded under Section 164 Cr.P.C. 17. The learned Senior Advocate vehemently argued that there was no willingness of the accused appellant for recording his confessional statements under Section 164 Cr.P.C. and the socalled statements recorded under Section 164 Cr.P.C. were recorded under threat of police officials when he was in police custody, which is apparent from the fact that an application was moved by the investigating officer before the Magistrate, in which it was specifically stated that during investigating, the accused appellant has made confession, therefore, his statements may be recorded under Section 164 Cr.P.C. The argument of learned counsel for the appellant is that the statements recorded u/s 164 Cr.P.C. cannot be relied upon so as to hold accused appellant guilty because statements were recorded when the accused appellant was in police custody, so also, the day on which the application was filed by the investigating officer for recording statement of accused u/s 164 Cr.P.C., he was very much in police custody, therefore, it was the duty of the learned trial court to disbelieve the confessional statement of accused appellant, which is said to be recorded u/s 164 Cr.P.C. without following the procedure laid down u/s 281 of Cr.P.C. As per argument of the appellant’s counsel, the lead trial court has erroneously relied upon the said statement so as to hold accused appellant guilty, therefore, the judgment suffers from patent illegality. 18. Learned Senior Advocate while attacking upon the evidence of last seen submitted that as per prosecution case, there were three witnesses of last seen viz. PW.3 Puranram, PW.11, Sahabram, and Pinki (wife of younger brother of complainant). 18. Learned Senior Advocate while attacking upon the evidence of last seen submitted that as per prosecution case, there were three witnesses of last seen viz. PW.3 Puranram, PW.11, Sahabram, and Pinki (wife of younger brother of complainant). As per complainant, when he reached at home, Smt. Pinki gave information that Sonu called Shalu, when she was in the house and upon calling, Shalu went along with Sonu Kumar. But, Pinki has not been produced before the court to prove said fact. Therefore, it is argued that prosecution has failed to examine this important witness to prove the case against the appellant. While inviting attention towards the statement of PW.3, Puran Ram, it is vehemently argued that upon perusal of his statements, it will reveal that his presence is seriously doubtful because if said Puran Ram was present and went along with complainant to search deceased, Shalu, then, obviously his statements were to be recorded immediately by the police but as per prosecution case, statement of PW.3- Puran Ram were recorded under Section 161 Cr.P.C. after two days. It is also argued that if PW.3- Puran Ram had seen Shalu in the company of Sonu Kumar, then why he has not made effort for rescue of Shalu, therefore, it is obvious that testimony of this witness has wrongly been relied upon by the learned trial court for recording finding of conviction. While inviting attention towards the statement of PW.11 Sahab Ram, it is submitted that said witness was ward member of the area and as per his statement, accused appellant was going with one girl on the date of incident. When he was going to his house for taking meal and further stated that Mangilal complainant met him, and upon inquiry about his sister, he said that Sonu Kumar had taken his sister. The learned counsel for the appellants submit that the fact of last seen has not been proved by the prosecution because both the witnesses PW.3 Puran Ram and PW.11 Sahab Ram are planted witness, therefore, the important circumstance of last seen has not been proved by the prosecution beyond reasonable doubt. 19. The learned counsel for the appellants submit that the fact of last seen has not been proved by the prosecution because both the witnesses PW.3 Puran Ram and PW.11 Sahab Ram are planted witness, therefore, the important circumstance of last seen has not been proved by the prosecution beyond reasonable doubt. 19. With regard to recovery of clothes, it is submitted that as per arrest memo, clothes which accused was wearing at the time of occurrence, were immediately taken in possession because those clothes were having blood upon them, but there is no evidence on record that as to what type of clothes were given to the appellant to wear after taking his clothes, therefore, the recovery of clothes cannot be used as evidence to connect the appellant with the alleged crime of murder. While inviting our attention towards postmortem report (Ex.P/32), and statement of the doctor PW.14, Dr. Madan Singh, it is submitted that in the postmortem report the doctor opined that the injuries were in the form of lacerated wound and were caused by blunt weapon but in the investigation one sharp edged weapon viz. ‘Iron-Barchi’ was recovered, therefore, on this ground also, it is obvious that prosecution has failed to connect the recovery of sharp edged weapon with the injuries found upon the person of deceased. According to argument, it is a case in which neither evidence of last seen is proved nor the confession statement of appellant is doubtful, the recovery of clothes and nature of injuries found upon the dead body relates with the weapon recovered at the instance of the appellant. The prosecution has miserably failed to prove the occurrence, therefore, it is obvious that trial court erroneously held the accused appellant guilty and has wrongly passed the death sentence as well as imprisonment for life u/s 302 and 376 of IPC respectively without any evidence. 20. In view of above, it is submitted that as per evidence available on record, not only the finding of guilt recorded u/s 302 and 376 IPC deserves to be quashed, the appellant is entitled to be acquitted from the charges levelled against him. 21. 20. In view of above, it is submitted that as per evidence available on record, not only the finding of guilt recorded u/s 302 and 376 IPC deserves to be quashed, the appellant is entitled to be acquitted from the charges levelled against him. 21. Per contra, learned Public Prosecutor and learned counsel for the complainant, vehemently argued that there is no strength in the arguments advanced by the learned counsel for the accused appellant because upon trustworthy and reliable evidence, the learned trial court held the accused appellant guilty for the offence sunder Sections 302 and 376 of IPC. It is submitted that although prosecution case is based upon circumstantial evidence and extra judicial confession and recovery of clothes and weapon, but it cannot be said that the accused is entitled to be acquitted from the charges levelled against him because accused appellant was married person and being friend of Mangilal (brother of the deceased) used to visit at the house of Mangilal but developed illicit relations with deceased, Shalu, and this fact is established from the prosecution evidence. The entire prosecution case is based upon testimony of 16 witnesses, none of the witnesses turned hostile and completely supported the prosecution case. While inviting attention towards statements of PW.-16, Prem Singh Dhanwal, who was the Judicial Magistrate, First Class No.1, Sri Ganganagar, it is submitted that the confessional statement of accused appellant was recorded by him under Section 164 Cr.P.C. and as per directions given by Chief Judicial Magistrate, Sri Gangangar, upon request made on behalf of accused. The learned Magistrate (PW-16 Prem Singh Dhanwal) categorically stated on oath before the court that confessional statement of the accused, Sonu @ Sohan Lal were recorded as per his will and informing him that there is no pressure upon you to give confessional statement and you are free to give your statement or not. The Magistrate stated before the court that he has recorded his satisfaction to test the independency of the accused appellant for the purpose of recording his confessional statement; and thereafter recorded the confessional statement (Ex.P/40) in which the accused appellant accepted the incident for committing murder of deceased, Shalu. 22. The Magistrate stated before the court that he has recorded his satisfaction to test the independency of the accused appellant for the purpose of recording his confessional statement; and thereafter recorded the confessional statement (Ex.P/40) in which the accused appellant accepted the incident for committing murder of deceased, Shalu. 22. The crux of the arguments of learned Public Prosecutor is that not only circumstantial evidence is relied upon by the trial court but there is confessional statement recorded by the Judicial Magistrate No.1, Sri Ganganagar, in which the accused appellant accepted his guilt for committing murder of deceased, Shalu, with whom he was having illicit relations. According to learned Public Prosecutor, the statement of Magistrate (PW.16) Prem Singh Dhanwal, cannot be doubted because he is independent witness and performed his legal duty assigned to him, therefore, how it can be said that procedure adopted by the Magistrate for the purpose of recording the confessional statement of the accused was faulty or illegal in any manner. Thus, the finding of guilt recorded by the learned trial court does not suffer from any illegality. 23. Learned Public Prosecutor invited our attention towards the statement of PW.-1 Mangilal, and PW.-2 Krishanlal, both brothers of the deceased, PW.3- Purnram, & PW.11 Sahabram, and submits that these witnesses categorically stated before the court that accused appellant was having illicit relations with Shalu and an objection was raised by the brothers and “Panchayat” was also held to sort out the dispute and the accused was warned not to have illicit relations with Shalu. It is also submitted that the dead body of the deceased, Shalu was found in the rented house of the accused appellant and this fact is not only proved by the brothers of the deceased and other witnesses but also by the witness PW.7- Dharamveer and PW.8- Savitri, (landlord of the accused, in whose house the accused appellant was residing as tenant). The witness PW.8- Savitri stated on oath that dead body of the deceased, Shalu was found in their room, which was let out to accused, therefore, if the dead body of deceased, Shalu, was found in the house of accused, then obviously it was to be explained by the accused appellant as to how dead body of deceased was found in his room/house. In view of this it is submitted that there is no question to disbelieve the prosecution case on the basis of grounds raised by the counsel for the accused. 24. Learned Public Prosecutor and learned counsel for the complainant for maintaining the finding of conviction invited our attention towards following judgments:- (a) State of Rajathan Vs. Thakur Singh reported in 2014 AIR SCW 4479. (b) Phula Singh Vs. State of Himmachal Pradesh, reported in 2014 AIR SCW 1499. (c) State of Rajasthan Vs. Manoj Yadav reported in 2012 Cr.L.J. 456 (d) Vasanta Sampat Duparev Vs. State of Maharashtra reported in AIR 2015 SC (Supp) 14 25. While replying upon aforesaid judgments he submits that no illegality or error has been committed by the learned trial court in view of aforesaid judgments so as to hold accused appellant guilty and imposing capital punishment for the offence committed by the accused appellant under Section 302 IPC and imprisonment for life for offence u/s 376 of IPC, therefore, the instant appeal may kindly be dismissed and the murder reference made by the Sessions Judge, Sri Ganganagar, to confirm the death sentence, may kindly be accepted. 26. After hearing the learned counsel for the parties, we have perused the entire judgment rendered by the learned trial court as well as evidence on record. Admittedly, complainant, PW.-1, Mangilal, brother of deceased submitted a written report (Ex.P/1) on 17.05.2010 at 03.00 PM at Police Station- Sadulsahar, where F.I.R. No.140/2010 (Ex.P/2) was registered against the accused appellant under Section 302 IPC. The police went on the spot in the rental house of accused appellant Sonu @ Sohanlal and the dead body of the deceased was recovered from the said house. The police prepared site plan (Ex.P/3) of the place where the dead body was lying and details of the place where dead body was lying, was recorded vide Ex.P/3A on 17.05.2010. Vide Ex.P/4, ‘Panchnama’ of the dead body was prepared at 04.00 PM and blood stained bed sheet, pillow cover upon which the dead body was lying were taken in possession vide Ex.P/5. Blood stained sleepers of the deceased, Shalu, were taken in possession vide Ex.P/6. One piece of blood stained “Chunri” was recovered from the fan vide Ex.P/7. The blood spread over on the floor was also collected and taken in possession and undergarment of the deceased were taken in possession vide Ex.P/9. Blood stained sleepers of the deceased, Shalu, were taken in possession vide Ex.P/6. One piece of blood stained “Chunri” was recovered from the fan vide Ex.P/7. The blood spread over on the floor was also collected and taken in possession and undergarment of the deceased were taken in possession vide Ex.P/9. After postmortem the dead body of the deceased was handed over to the brothers of the deceased viz. Mangilal and Sahabram and Purnram on the same day i.e. on 17.05.2010 in the evening. The accused was arrested on 17.05.2010 at 07.00 PM vide Ex.P/24 and upon his information the place of occurrence was also identified and a blood stained ‘Barchhi’, the weapon of offence, which was used to commit murder of the deceased was recovered at 06.30 AM on 18.05.2010. The site plan of the place from where the ‘Barchhi’ was recovered was prepared vide Ex.P/23) and details were recorded vide Ex.P/23A. Blood stained tracksuit of the accused was recovered as per his information vide Ex.P/35 on the same day. The postmortem of the dead body was conducted at Govt. Hospital, Sadulsahar by the Medical Officer at 05.40 PM on 17.05.2010 and postmortem report (Ex.P/32) was give by the doctor to the investigating officer. All the articles were sent to FSL for examination and vide Ex.P/37, it was reported by FSL that human blood of ‘B’ group was found upon all the articles sent for chemical examination. 27. In support of prosecution case, statements of 16 witnesses were recorded. The author of the FIR PW.-1 Mangilal, brother of the deceased, categorically stated in his statements that accused Sonu @ Sohanlal was resident of Karanpur, but he shifted at Sadulsahar and they were working together, therefore, friendship was developed in between them. Due to friendship, accused Sonu @ Sohanlal, used to visit his house and developed illicit relations with his younger sister, Shalu (deceased), an objection was raised not only by the complainant, Mangilal, but also by other members of the family. However, the accused did not change his way and continue to have illicit relations with deceased, Shalu and ultimately he has killed her in his rented house. Although in the cross-examination, certain questions were put to the witness, Mangilal (PW.1) with regard to the fact that who has given information on the date of occurrence that Shalu was taken forcibly by Sonu @ Sohan Lal. Although in the cross-examination, certain questions were put to the witness, Mangilal (PW.1) with regard to the fact that who has given information on the date of occurrence that Shalu was taken forcibly by Sonu @ Sohan Lal. The witness in his examination-inchief categorically stated that on the date of incident at about 12.00 AM in the morning hours, when he came back from his work place to his house, the wife of his younger brother, Smt. Pinki informed that accused Sonu @ Sohan Lal had forcibly taken Sahlu with him. Thereafter, a search was made by him. As per witness Mangilal (PW.1) first of all he met Purnram and made enquiry about Shalu. Purnram informed that I have seen Shalu along with Sonu @ Sohan Lal when they were going towards school. Thereafter Sahab Ram (other witness) also informed that Sonu @ Sohanlal while taking Shalu with him was going toward Wad No.16. Upon receiving aforesaid information, the complainant Mangilal immediately went to the house of Dharamveer, where accused appellant, Sonu @ Sohan Lal was living as tenant, but Sonu @ Sohan Lal was not found there and his room was closed, however, from the ventilator he saw that dead body of his sister, Shalu was lying on the floor and blood was spread on the floor. The complainant immediately went to the police station for registration of FIR and submitted written report, upon which FIR was registered and police immediately reached at the place of occurrence and opened the door of house and proceeded to conduct investigation. During investigation, all the articles were recovered from the place of occurrence and statements of other witnesses, Purnram, Sahabram, Dharaveer Sharma and Saviti (mother of Dharamveer, landlord) were also recorded under Section 161 Cr.P.C. All these witnesses categorically proved the fact that dead body of deceased, Shalu, was recovered from the house, where accused appellant was residing on rent. It is true that Pinki, wife of younger brother of Mangilal (complainant), was not produced before the court as prosecution witness, but in our opinion when it is proved by the prosecution that the dead body of the deceased was found in the rented house of the accused, Sonu @ Sohan Lal, then, non-production of Pinki as prosecution witness in the trial court, cannot be treated a ground to disbelieve the prosecution story. Therefore, the argument of the learned counsel for the accused appellant that material witness has not been produced and examined before the court, is immaterial. 28. We have perused the statement of other witnesses. All the witnesses Dharamveer, Savitri, Puran Ram, Sahab Ram and investigating officer gave statement and categorically proved the fact that dead body of deceased, Shalu was recovered from the house of the accused, the FSL report loudly speaks that clothes of deceased, as well as of accused, and other material recovered from the place of occurrence, which were sent to the FSL, and according to FSL report, human blood of ‘B’ ground was found upon them. Therefore, on this ground also, we are of the opinion that there is no strength in the argument of the learned counsel or the accused appellant that whole prosecution story is doubtful. 29. We have also considered the argument of learned counsel for the accused appellant with respect to confessional statement of the accused was recorded when he was in police custody. The accused appellant was arrested on 17.05.2010 vide Ex.P/24 and was produced before the Magistrate for taking police remand on the next day i.e. 18.05.2010 at 04.45 PM and the learned Magistrate granted two days police remand for investigation and directed the investigating officer to produce accused Sonu @ Sohnalal before the court on 20.05.2010 at 12.00 PM. On 18.05.2010, an application was moved before the Judicial Magistrate, Sri Ganganagar for recording statement of the accused u/s 164 Cr.P.C. The learned Magistrate passed an order that accused Sonu @ Sohan Lal may be produced before him for recording his statements at 10.00 AM on 19.05.2010. According to learned counsel for the accused appellant, on 18.05.2010 accused appellant Sonu @ Sohan Lal was in police custody because remand was given by the magistrate up to 20.05.2010, but as per evidence on record the investigating officer produced the accused appellant before the Magistrate a day before on 19.05.2010 at 07.15 and the concerned Magistrate passed an order to send the accused in the judicial custody up to 31.05.2010. The investigating officer before lodging the accused appellant to judicial custody produced the accused before the Judicial Magistrate, Sri Ganganagar on 19.05.2010, where his confessional statement was recorded under Section 164 Cr.P.C. 30. The investigating officer before lodging the accused appellant to judicial custody produced the accused before the Judicial Magistrate, Sri Ganganagar on 19.05.2010, where his confessional statement was recorded under Section 164 Cr.P.C. 30. To consider this argument of the learned counsel for the accused appellant that the magistrate recorded the statements in violation of Section 281 of Cr.P.C., we have examined the entire evidence available on record. There is no doubt that after arrest the accused appellant was produced before the magistrate on 18.05.2010 for the first time at about 04.45 PM and on that date, two days police remand was given for the purpose of investigation with further direction to produce the accused on 20.05.2010 at 12.00 PM, but the investigating officer although having two days police remand, but due to completion of investigation produced the accused a day before on 19.05.2010 at 07.55 AM to send him in judicial custody. The concerned Magistrate passed an order at 07.55 AM on 19.05.2010 whereby accused appellant was sent to judicial custody up to 31.05.2010. 31. It is admitted position of the case that before sending the accused appellant to the judicial custody, the accused was produced before the Judicial Magistrate, First Class No.1, Sri Ganganagar (PW.16 Prem Singh Dhanwal) for recording his statement u/s 164 Cr.P.C. and we have perused the statement of PW.16- Prem Singh Dhanwal, who was posted as Judicial Magistrate, First Class No.1, Sri Ganganagar on 19.05.2010, in which he has categorically stated that accused appellant was produced before him at 10.00 AM in the morning for recording his statement under Section 164 Cr.P.C. There is no evidence on record that any objection was raised by the accused appellant before the magistrate concerned that he is not willing to give statement under Section 164 Cr.P.C. or he is under the fear of police. We have perused the cross-examination of PW.16- Prem Singh Dhanwal, in which following statement is given by him, which reads as under: ^^;g lgh gS fd izn'kZ ih&36 izkFkZuk i= vfHk;qDr lksuw mQZ lksguyky }kjk is'k ugh fd;k x;kA ;g lgh gS fd izn'kZ ih&36 ds Åij i'r ij esjs }kjk fd, x, i`"Bkdu lh ls Mh ij vfHk;qDr ds dksbZ gLrk{kj ugha gSA ;g lgh gS fd vfHk;qDr dks iqfyl vfHkj{kk ls izn'kZ ih&36 ds lkFk esjs le{k is'k fd;k x;k FkkA eSus ekSf[kd :Ik ls vfHk;qDr dks le>k fn;k Fkk fd eS U;kf;d eftLVªsV dh gSfl;r ls lLohd`fr ys[kc} d:axk vkSj vfHk;qDr dks ;g Hkh le>k fn;k Fkk fd vki laLohd`fr djus ds fy, vkc/k ugha gS vkSj ,d ?kaVk lkspus dk le; fn, tkus ds i'pkr vfHk;qDr dks ;g Hkh le>k fn;k Fkk fd vki laLohd`fr djus ds fy, vkc/k ugha gS vkSj ,d ?kaVk lkspus dk le; fn, tkus ds i'pkr vfHk;qDr us LosPNk la lLOkhsd`fr esjs le{k dh ftldk eSusa izn'kZ ih&40 esa th ls ,p ds :i es ys[kc) dh vkSj le>k tkus ds lac/k esa vkSj vU; rF;ksa ds laca/k esa tks fd vfHk;qDr dks crk, x, Fks mldk izek.k i= bZ ls ,Q esjs }kjk fy[kk x;k FkkA ;g lgh gS fd izn'kZ ih&40 ds izek.k i= esa ;g fy[kk gqvk ugh gS fd eSus fdl gSfl;r ls laLohd`fr ys[kc) dh FkhA ;g lgh gS fd vfHk;qDr dh laLohd`fr ys[kc) djus ds i'pkr bZ ls ,Q izek.k i= ys[kc) fd;k gqvk gSA ;g lgh gS fd eSaus vfHk;qDr dks fyf[kr esa ;g ugha fn;k Fkk fd vki laLohd`fr djus ds fy, vkc/k ugh gSA ;g lgh gS fd vfHk;qDr dh laLohd`fr ys[kc) djus ds i'pkr izn'kZ ih&36 izkFkhZuk i= is'k djus okys vuqla/kku vf/kdkjh dks gh vfHk;qDr lqiqnZ fd;k x;k FkkA vuqla/kku vf/kdkjh dk uke enu flag ,l vkbZ gSA vkt eq>s /;ku ugh gS fd vfHk;qDr dks enu flag ,l vkbZ ysdj vk;k Fkk ;k vU; iqfyldehZ ysdj vk;k FkkA ;g xyr gS fd vfHk;qDr us iqfyl ds ncko esa laLohd`fr dh gksA 32. Upon perusal of above cross-examination made by the appellant’s counsel, it is apparent that no question was put to the Magistrate that any request was made by the accused appellant, Sonu @ Sohan Lal, that he is not willing to give statement under Section 164 Cr.P.C. Therefore, it cannot be said that confessional statement was recorded under any threat or duress of the investigating officer in contravention of Section 281 Cr.P.C. The learned trial court gave finding that in the confessional statement (Ex.P/40) the accused accepted that he was having relation with deceased, Shalu, and committed murder of deceased, Shalu after committing inter-course with her. In our opinion, even if some lapses are there, as pointed out by the counsel for the accused appellant, but it cannot be said that trial court has committed any error while holding the accused appellant guilty on the basis of confessional statement and circumstantial evidence because there is ample evidence to establish the fact that dead body of Shalu was found in the house of accused and there is no explanation of accused, as to how the dead body of deceased Shalu was found in his house. 33. We have considered the argument of learned counsel for the accused appellant that there is no eyewitness to prove the occurrence. It is true that there is no eyewitness in this case but prosecution has proved and established the fact that dead body of deceased, Shalu, was recovered from the house of the accused appellant and if accused appellant was not having any relationship with the deceased Shalu, then how the dead body of deceased was found in the house of accused appellant. It is also required to be observed that not only PW.1, Mangilal and PW.2 Kishanlal, brothers of deceased proved the recovery of dead body in the rented room/house of the accused appellant, and proved the fact with regard to accused appellant having illicit relations with their sister, but other independent witnesses, viz. Dharamveer (PW.7) and Savitri (PW.8), the landlord of the rented house of accused and Madan Singh (PW.15) Sub-Inspector of Police Station-Sadulsahar, who has conducted the investigation, categorically proved that dead body of deceased Shalu was found in the house of accused Sonu @ Sohanlal, where accused was residing as tenant. 34. Dharamveer (PW.7) and Savitri (PW.8), the landlord of the rented house of accused and Madan Singh (PW.15) Sub-Inspector of Police Station-Sadulsahar, who has conducted the investigation, categorically proved that dead body of deceased Shalu was found in the house of accused Sonu @ Sohanlal, where accused was residing as tenant. 34. In view of above, we are of the opinion that the prosecution has proved its case beyond reasonable doubt that the accused appellant was having illicit relations with deceased Shalu and it was the accused appellant, who committed rape with her in his rented house and thereafter committed murder, which he has accepted in his confessional statement (Ex.P/40) recorded by the Judicial Magistrate, First Class No.1, Sri Ganganagar, therefore, there is no question to disturb the finding of guilt recorded by the trial court against the accused appellant for committing offences under Sections 302 and 376 IPC. 35. We have also considered the argument of learned Public Prosecutor for confirmation of the death sentence passed by the trial court against the accused appellant for commission of offence under Section 302 of IPC while recording the finding that it is a rarest of rare case. In our opinion, the finding recorded by the trial court to treat the present case as rarest of rate case, is not sustainable in law because as per prosecution case the deceased was having relations with the accused and she used to meet accused appellant as per her free will, even though, objections were raised by the members of her family; and on the date of incident, her body was found in the house of accused appellant, but there is no evidence on record to prove the fact that she was forcibly taken by the accused appellant to his house because Pinki, sister-in-law of the complainant PW.1 Mangilal who was present in the house and gave information to complainant, has not been produced before the court to prove the fact that Shalu was forcibly taken by accused. It is also admitted fact that there is no eyewitness of the incident but prosecution has proved the allegations on the basis of circumstantial evidence. Therefore, it is not a case which could be treated as rarest of rare case so as to confirm the death sentence passed by the trial court. In case of Sunil Dutt Sharma Vs. State (Govt. Therefore, it is not a case which could be treated as rarest of rare case so as to confirm the death sentence passed by the trial court. In case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 , the Hon’ble Apex Court held that in rarest of rare case maximum sentence can be imposed but not otherwise. 36. Accordingly, and in view of above discussion we are not inclined to confirm the death sentence, therefore, Murder Reference No.1/2013 made by learned Special Additional Sessions Judge (Women Atrocities & Dowry Prohibition) Cases, Sri Ganganagar, to confirm the death sentence is hereby rejected. Consequently, the D.B. Criminal Appeal No.64/2013 filed by appellant is partly allowed and while upholding the finding of guilt recorded by the trial court against the accused appellant, the punishment of death sentence under Section 302 IPC is hereby altered to the imprisonment for life along with fine of Rs.5000/- with default stipulation to undergo one year’s additional imprisonment. The prosecution has proved its case beyond reasonable doubt for offence under Section 376 IPC, therefore, the conviction and sentence for the said offence passed by the learned trial court, is hereby affirmed. 37. Consequently, the appeal of the accused appellant is partly allowed.