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2018 DIGILAW 1249 (ALL)

FIROZ v. STATE OF U. P.

2018-05-18

KRISHNA PRATAP SINGH, NAHEED ARA MOONIS

body2018
JUDGMENT : (Delivered by Naheed Ara Moonis, J.) The instant appeal has been preferred against the judgment and order dated 23.7.2016/27.7.2016 passed in Sessions Trial No. 601 of 2013 (State versus Firoz) by the learned Additional Sessions Judge Court No.8 Shahjahanpur whereby the appellant has been convicted under section 302 IPC and sentenced to death with fine of Rs. 20000/-. In default of payment of fine, he has to undergo two months additional sentence. The appellant was also directed to undergo one year simple imprisonment under section 504 IPC and two years simple imprisonment under section 506 IPC. Both the sentences were directed to run concurrently. The capital sentence awarded to the accused appellant by the court below has been relegated to this Court vide Reference No. 8 of 2016 for confirmation in the aforementioned appeal. The emanation of the facts giving origin to the present case is that an FIR has been lodged by Ikrar Ali against the appellant and Haji Jakir Ali with respect to the incident occurred on 16.8.2013 at about 7.40 a.m. vide Case No. 529 of 2013 under section 302 IPC at Police Station Sadar Bazar District Shahjahanpur contending that his daughter Km. Afrin aged about 10 years studying in Sahara Public School was going to her School on 16.3.2013 at about 7.40 a.m. with her school bag. His daughter Afrin was also accompanied with his niece Km. Falak aged about seven years. The complainant and his wife were standing at the door after departure of his daughter. As soon as his daughter Km. Afrin reached at the metalled road running from station road towards Dhaka Talab in front of dairy of Haji Zakir Ali, at that very juncture, Firoz son of Farooq resident of Nisarjai Police Station Sadar Bazar District Shahjahanpur equipped with spade appeared in front of his daughter (Afrin) and started to make interrogation . The appellant Firoz stroke heavily with spade on the neck of victim Afrin as a result of which the head of the victim was sundered from the thorax falling at some paces. The complainant in association with his wife raising alarm and yell attempted to nail the accused appellant Firoz. The appellant Firoz stroke heavily with spade on the neck of victim Afrin as a result of which the head of the victim was sundered from the thorax falling at some paces. The complainant in association with his wife raising alarm and yell attempted to nail the accused appellant Firoz. In the meantime hearing their shrill and scream, Azad Ali and Anwar Ali and other persons of the locality gathered on the spot witnessing the incident and strived to nab him but the accused appellant after committing the fiendish and infernal act fled rapidly from the place of occurrence with spade towards the lane. While the accused appellant was running away, he was being pursued by a number of persons. The accused appellant hurled abusive and vituperative words extending threats of dire consequences to life and liberty. It has further been divulged that prior to 4/5 days of the incident, the appellant Firoz had come at the house of the complainant to take a room on rent. The complainant convoked his brother. On denial of the complainant and his brother to rent out the room to the appellant, the appellant Firoz was highly infuriated and exasperated and was bent up to create nuisance . On the intervention of the local people, the appellant Firoz departed hinting towards undesired results. The appellant Firoz intended to live in the house of the complainant forcibly and on account of this disharmonious relation, the appellant Firoz committed ghastly and monstrous murder of his daughter Afrin by severing her head from thorax with the blow of spade. The appellant Firoz is a hardcore and notorious person of ill-repute. The accused appellant was time and again visiting in the Mohalla of the complainant and was known to the complainant from earlier. The said incident was executed at the inkling and connivance of Haji Zakir Ali r/o Nisarjai Jalalnagar . The appellant Firoz and Haji Zakir Ali were hand in glove with each other and were in agreement to execute this incident. The complainant had left on the spot the corpse of Km.Afrin in the custody of his family members and had come to lodge the first information report. The first information report with regard to the said incident was scribed by Furkan on the utterance of the complainant. The complainant had left on the spot the corpse of Km.Afrin in the custody of his family members and had come to lodge the first information report. The first information report with regard to the said incident was scribed by Furkan on the utterance of the complainant. The barbaric and heart rending act of the appellant unleashed scares in the locality and the people of the locality were panic-stricken and horrified. Even they closed their window and doors. There was unruly and intractable scene in the adjoining area on account of this merciless and relentless murder of the victim Km.Afrin. On the basis of the first information report dated 16.8.2013, a case was registered against the appellant and Haji Zakir Ali vide Case Crime No. 529 of 2013 under section 302 IPC Police Station Sadar Bazar District Shahjahanpur. The first information report lodged against the accused appellant and co-accused Haji Zakir was reduced into writing and the chik FIR was prepared and marked as Ext.Ka.1. The details of which was entered in the G.D.No. 20 at 16.45 hours. The investigation was entrusted to Subedar Singh Inspector (P.W.7) who swung into action and reached on the spot and got the Panchnama (Ext. Ka.11) prepared under the supervision of Rajesh Kumar Kashyam S.I. After preparation of the chik FIR, he recorded the statement of the complainant and at the identification of the complainant, site plan with regard to the said incident was prepared. He collected the plain and blood stained earth in separate container from the place of occurrence. The recovery memo of blood stained and plain earth was marked as Exhibit Ka.2. The slippers (Hawai Chappal) , school bag containing books etc. including the blood stained Fawra were recovered and marked as Exhibit Ka.3,4 and 5. The investigating officer also prepared the inquest report (Ext.Ka.11), challan lash (Ext.Ka.12) ,photo lash (Ext.Ka.13) on 16.8.2013. The corpse of Afrin was sent to the mortuary for autopsy along with letter issued to the Chief Medical Officer Shahjahanpur. The post mortem of the deceased Afrin was conducted by Dr. Suresh Kumar (P.W.5) on 16.8.2013 at about 4.15 p.m.. The post mortem report was marked as Ext.Ka.6. The following ante-mortem injuries were found on the person of deceased Afrin. 1. Head i.e. upper part separated completely from the lower part of the body at the level of neck. 2. The post mortem of the deceased Afrin was conducted by Dr. Suresh Kumar (P.W.5) on 16.8.2013 at about 4.15 p.m.. The post mortem report was marked as Ext.Ka.6. The following ante-mortem injuries were found on the person of deceased Afrin. 1. Head i.e. upper part separated completely from the lower part of the body at the level of neck. 2. Incised wound 7 cm from the chin, margin sharp, circumference 25 cm all around the underlying cervical vertebral bone was cut at the level of 3-C. All muscles, nerves, trachea and other anatomical structure were completely cut. 3. Incised wound , circumference 23 cm with sharp margin completely C-3 was cut completely and all anatomical structures of neck cutted completely with clear margin. 4. Lacerated wound 2.5 cm x 2.0 cm on the forehead , 3.5 cm above the left eye brow. The cause of death due to shock and hemorrhage as a result of ante-mortem injuries. The accused appellant was not arrested on the spot. The personnel of the police were in search of the appellant Firoz and were making hectic efforts to arrest him. The investigating officer got tip off that the accused appellant Firoz was standing on the crossing of Shahbaz Nagar near the shop of Majid Hotel. On the basis of secret information, Subedar Singh Yadav SHO in association with other police force was standing in search of the appellant at the Shahbaj Nagar crossing. On the tip off of the secret informer, Subedar Singh and other police personnel reached near the Majid Hotel and at the indication of secret informer, the appellant Firoz was taken into custody on 13.20 hours. On interrogation, the appellant unearthed his name as Firoz s/o of Farookh ,resident of Nisarjai Thakatal Police Station Sadar Bazar District Shahjahanpur. The appellant exposed that he was not married. His father has departed from universe. His mother has settled second marriage. He was earning his livelihood by doing physical work residing at the house of his maternal uncle. He was ostracized from the house of his maternal uncle therefore, he contacted Ikrar Ali r/o Nisarjai for accommodation on rent earlier to four/five days. At that crucial moment, Ikrar Ali, his wife and the children had affronted and humiliated him on account of which the appellant was extensively sunk in depression and gloom. He was ostracized from the house of his maternal uncle therefore, he contacted Ikrar Ali r/o Nisarjai for accommodation on rent earlier to four/five days. At that crucial moment, Ikrar Ali, his wife and the children had affronted and humiliated him on account of which the appellant was extensively sunk in depression and gloom. Subsequent thereto, he speculated and churned deeply and determined to retaliate from Ikrar (complainant). In the heat of revenge, on 16.8.2013, the appellant was going in search of work with spade, he saw Afrin, the daughter of the complainant going to school with bag near the dairy of Zakir Ali. He got an opportune time to execute his mission. He inflicted a blow on the thorax of the victim (Afrin) with spade as a result of which she stumbled on the ground convulsing and the head was disintegrated from the thorax. On this dreadful scene, Ikrar, his wife and other persons of the locality ran to catch him but he in a very clever and skilful manner succeeded in running from the place of occurrence and was hidden in the midst of sugarcane about hours. When the persons who were chasing him returned back, the appellant getting appropriate time concealed the blood stained spade in the house situate on the brink of Chandni culvert running from Shahbaj Nagar. The appellant confessed to hand over blood stained spade used in the said crime after reaching at that place. The police personnel taking into custody to the appellant reached at the Chandni Culvert running towards Shahbaj Road. The accused appellant got the vehicle haulted by making gesture and got down from the vehicle. In the meantime the son of the complainant namely Imran and Rijwan (nephew of the complainant) came at that place and the spade was recovered at their presence at the pointing of the appellant. In association of Imran and Rijwan, the police personnel reached at the half constructed house and the appellant himself took out the blood stained spade divulging that the said spade was used in the incident dated 16.8.2013 at about 7.40 a.m. in front of dairy of Haji Zakir for disintegrating the head of Afrin. The family members of the victim and other persons of the locality tried to nail him but the appellant disappeared from the scene of occurrence in a very skillful manner. The family members of the victim and other persons of the locality tried to nail him but the appellant disappeared from the scene of occurrence in a very skillful manner. He confessed his guilt repenting upon his act. He implored for excuse. The blood stained spade was taken into custody and was sealed on the spot. The accused appellant was taken into custody when the memo of recovery was prepared by Sub-inspector Rajesh Kumar and the same was signed by the witnesses. The site plant of recovery of weapon of assault was prepared and marked as Ext. Ka.9 and 10. The investigating officer sent the weapon of assault and other sealed articles for examination to the Chemical Science Laboratory at Lucknow which was marked as Ext. Ka.17. The report of he Chemical Science Laboratory Lucknow dated 12.5.2015 was marked as Ext. Ka. 18 and 19. Thereafter completing the investigation in all respect, the investigating officer submitted the charge sheet against Firoz, the accused appellant finding his complicity in the commission of the said offence which was forwarded to the court below vide Ex.Ka.15. The case was committed to the Court of Sessions for trial of the accused appellant on 31.10.2013. The charges framed against the accused appellant were read over to him who abjured and claimed to be tried. In order to prove guilt of the accused appellant , the prosecution has examined Ikrar Ali (P.W.1) , Tahira Bano (P.W.2) ,mother of the deceased Afrin & wife of P.W.1, Azad Ali (P.W.3), brother of the complainant and father of Km. Falak, Imran Ali (P.W.4) , the son of the complainant who was the witness of the recovery of weapon used in the crime. Dr. Suresh Kumar (P.W.5) who had conducted the autopsy of the deceased Afrin. Constable 288 CP, Nazakat Ali (P.W.6) who had proved the chick FIR. Subedar Singh (P.W.7) Inspector (investigating officer) who had investigated the case and submitted charge sheet against the accused appellant after collecting credible and clinching materials. The accused appellant in his statement under section 313 Cr.P.C. denied all the charges levelled against him and pleaded for innocence. He pleaded that he has been entrapped in the present case out of personal vendatta and grudge. The accused appellant stated that the witnesses have given false statement so as to satiate their animosity and emotion. The accused appellant in his statement under section 313 Cr.P.C. denied all the charges levelled against him and pleaded for innocence. He pleaded that he has been entrapped in the present case out of personal vendatta and grudge. The accused appellant stated that the witnesses have given false statement so as to satiate their animosity and emotion. The accused appellant refused to adduce any evidence in defence and stated that he does not want to say anything. The prosecution in order to corroborate its stand examined Ikrar Ali (complainant-PW.1) who reiterated the version as divulged in the FIR and expounded that he in association with his wife (Tahira Bano) were standing at the door to watch his daughter Afrin who was going to Public Sahara School to attend the classes. When his daughter reached in front of dairy of Haji Zakir at station road running from Dhaka Talab, at that very juncture the accused appellant equipped with spade came at Dhaka Talab and ensued confabulation with her. The accused appellant jostled his daughter as a consequence whereof she fell down . After her falling, the accused appellant inflicted blow with the spade disintegrating her head from thorax. The head had fallen at some paces. At that crucial moment, the complainant Ikrar Ali and his wife Smt. Tahira Bano raised alarm and attempted to nail the appellant. The accused appellant ran towards the lane. On the hue and cry of the complainant and his wife Smt. Tahira Bano, Ajad Ali (P.W.3) and Imran Ali (P.W.4) and other persons of the locality came at the spot and witnessed the incident. The accused appellant unleashed reign of terror hurling abusive and vituperative words and also extending threats to life. The daughter of the complainant namely Afrin was accompanying with his niece Km. Falak. The accused appellant had contacted to the complainant anterior to four/five days for taking on rent his accommodation. The complainant called his brother for deliberation. When the complainant did not acquiesce to give on rent his accommodation, the accused appellant was highly exasperated and was bent upon to strife with the complainant and his brother Azad Ali. The people of the locality pacified the igniting situation. The accused appellant wanted to occupy his accommodation forcibly and powerfully. The complainant called his brother for deliberation. When the complainant did not acquiesce to give on rent his accommodation, the accused appellant was highly exasperated and was bent upon to strife with the complainant and his brother Azad Ali. The people of the locality pacified the igniting situation. The accused appellant wanted to occupy his accommodation forcibly and powerfully. On account of this hostility and unfriendliness, the accused appellant committed diabolical and gruesome slay of his daughter by inflicting blows with spade culminating into disintegration of her head from thorax. The accused appellant is an ill-reputed and notorious person. Haji Zakir Ali does not have any link in this incident. The scribe of the first information report was Furkan Ali who had jotted down on his utterances and was read over by him, then the complainant had put his signature. On this report, the case was registered against the appellant. The complainant had identified the accused appellant who was in the dock. The entire locality was engrossed in horror and terror. Ikrar Ali (P.W.1) was cross examined by the defence. It was narrated by the complainant that he and his wife Smt. Tahira Bano (P.W.2) were standing at the door when his daughter Afrin was going to School. The complainant did not recollect that any other person in addition to him and his wife Tahira were present. The complainant was doing the stitching work. He does not have any shop. The dairy of Haji Zakir Ali is situated towards west from his house at a coverage of 20 paces. The passage was straight ahead to dairy and the lane was curved towards north. Sahara Public School was situated on the passage running from the diary of Zakir Ali . The accused appellant Firoz was living in the Mohalla of the complainant from the childhood. His maternal house was situated in the same locality. The accused appellant was rearing animus and grudge against the complainant and his family members on account of denial for giving the accommodation on rent. The daughter of the complainant was done to death on account of this acrimonious term. The complainant had not inquired from his niece anything as she was aged about seven years. The complainant had got the report jotted down against the accused appellant and Haji Zakir Ali. The daughter of the complainant was done to death on account of this acrimonious term. The complainant had not inquired from his niece anything as she was aged about seven years. The complainant had got the report jotted down against the accused appellant and Haji Zakir Ali. The accused appellant after giving result to the incident ran towards the lane existing behind the mosque. When the accused appellant ran, alarm was raised by the complainant. Subsequent thereto a number of persons of the locality gathered at the place of occurrence, the complainant could not unveil their names. Looking to the ghastly and gruesome scene of incident, the complainant could not muster courage to come forward for the protection and safety of the victim. The complainant was thunderstruck looking to the heart rending position of his daughter therefore, he did not make any endeavour to nail to the accused appellant. It was not informed by anyone that Haji Zakir Ali had any link in the commission of said offence. Zakir Ali has not played any role in the execution of the said incident,therefore, his name was got dropped. He had submitted an affidavit in the police station concern that the name of Zakir Ali was introduced in the said incident on account of secret information of local people but when the reality came into light that Zakir Ali did not have any complicity in the commission of said crime, his name was got removed. The complainant was highly deranged on account of ghastly and grim murder of his daughter therefore, the name of Zakir Ali was drafted in the FIR. The complainant does not have unfriendly and acrimonious relation in the locality. The investigating officer has recorded his statement under section 161 Cr.P.C. In which he had further averred that he had chased the accused appellant 10 to 20 paces from the place of occurrence. Written report was scribed by Furkan at the place of occurrence. The name of Zakir was wrongly drafted in the first information report on misconception. The accused appellant had inflicted three blows with spade by which the head of the victim was disjointed from thorax falling at a distance of 1½ yard away. The police arrived at the spot after half an hour. The accused appellant was arrested on the fateful day of occurrence. The police had nailed him. The accused appellant had inflicted three blows with spade by which the head of the victim was disjointed from thorax falling at a distance of 1½ yard away. The police arrived at the spot after half an hour. The accused appellant was arrested on the fateful day of occurrence. The police had nailed him. The complainant could not recollect at what time he reached at the police station after occurrence. Inquest was conducted by the police in his presence. A number of persons were present at the moment, the inquest was being conducted but he could not utter the name of anyone on account of deranged psyche. It is wrong to say that there was any animosity or hostility with Abdul Hasan the maternal uncle of the accused appellant. Smt. Tahira Bano who is the mother of the deceased Afrin was examined as P.W.2 from the side of the prosecution. She had deposed that she was well aware about Firoz . The accused appellant Firoz used to live with his maternal uncle in her locality. Her daughter Afrin used to study in class-IV in Sahara Public School. At the crucial juncture of incident, her daughter Afrin was aged about 10 years. On the fateful day at about 7.40 a.m. ,the victim Afrin moved out for going to School with her bag. Her daughter Afrin was accompanied with Km. Falak to School. When her daughter Afrin left for going to school, she and her husband (the complainant) followed the victim upto door. When her daughter Afrin reached near the dairy of Haji Zakir Ali running towards Dhaka Talab, at the point of time the accused appellant Firoz arrived equipped with spade from the side of Dhaka Talab. The accused appellant started interrogation with her daughter and jolted with hands as a consequence whereof she fell on the ground and the accused appellant disintegrated the head of her daughter from thorax with spade . The head was severed from thorax. Her husband Ikrar (P.W.1) raised alarm . The accused appellant ran from the lane of mosque hurling disparaging and offensive words unleashing terror of ending the life. Attempts were made to nail the accused appellant but he succeeded to flee from the place of occurrence. On the shriek and alarm Azad Ali, Anwar Ali and a number of persons of the locality came who witnessed the incident. The accused appellant ran from the lane of mosque hurling disparaging and offensive words unleashing terror of ending the life. Attempts were made to nail the accused appellant but he succeeded to flee from the place of occurrence. On the shriek and alarm Azad Ali, Anwar Ali and a number of persons of the locality came who witnessed the incident. Prior to 4/5 days of the occurrence, the accused appellant had come to settle the accommodation on rent which was refused. The accused appellant took very furious turn and was bent up to struggle which was pacified by the intervention of the people of locality. The accused appellant wanted to live in her accommodation by applying force and vigour. On account of this enmity and animosity, the accused appellant committed ghastly and infernal slay of her daughter by disjointing her head from thorax with spade. The accused appellant is a notorious and a person of disrepute had unleashed reign of terror and panic in the locality. She had narrated the incident to the Station Officer concern with regard to the incident. In her cross examination she deposed that on the fateful day she had arranged tea and paratha. The victim Afrin moved out for school after devouring a little tea and paratha. The victim had not taken the lunch box on the crucial day of occurrence. Normally she used to take the lunch box. The fateful day of occurrence was Friday hence the school was to be closed earlier. Her husband Ikrar Ali was doing the stitching work in the factory. He used to move out at about 8/9 'O' clock. He was not taking care of winter or summer usually he moved out after eight 'O' clock. When her daughter Afrin proceeded for School, Tahira Bano (P.W.2) and her husband marched upto door for leaving . Her husband had not gone at work. No room was rented prior to this incident to anyone as no room was lying vacant . The accused appellant used to live in that Mohalla since attaining the age of 4/6 years. When the accused appellant had come to take on rent her accommodation, the conversation was ensued exterior to the house. At that juncture, the people of the locality gathered but she did not identify them as she is a purdah Nashin lady and was not moving beyond the precinct of her house. When the accused appellant had come to take on rent her accommodation, the conversation was ensued exterior to the house. At that juncture, the people of the locality gathered but she did not identify them as she is a purdah Nashin lady and was not moving beyond the precinct of her house. She was not aware as to whether any case was pending against the accused appellant. It was within the intelligence of the people that the accused appellant was a notorious and hardcore person. The accused appellant Firoz was not doing any work in the diary of Zakir Ali rather he used to do labour at the house of others. Tahira Bano (P.W.2) and her husband were standing at the door earlier to it. She was not moving out of the door without veil. Alarm was raised by them when the culprit ran away after executing the incident. Her Devar Azad Ali who was standing on the roof, stepped down. She was not aware about the identity of the persons of the locality. The persons of the locality suggested to lodge the first information report after the incident. She was not aware with whom her husband went to lodge the first information report. She remained all along present at the place of occurrence. After the incident, her husband immediately left the place of occurrence. She was not aware when her husband came back at the place of occurrence. The police personnel came after 10/15 minutes subsequent to the incident. Profuse blood was disseminated at the place of occurrence and the blood stained earth was collected by the police. Inquest was not held in her presence. The corpse was sealed in her presence. She was not aware how long the police conducted the normal formalities. She was also not conversant from where the accused was taken into custody. The accused-appellant had firstly jolted to her daughter as a consequence thereto she fell and then he thrashed twice/thrice at her neck with spade . There was no other injury on the person of the victim barring to neck. The head was disintegrated from thorax. It is wrong to say that she had not seen anything at the spot and on the correspondence of local people, the first information report was lodged by her husband against Zakir Ali and Firoz rather the incident was witnessed by her. The head was disintegrated from thorax. It is wrong to say that she had not seen anything at the spot and on the correspondence of local people, the first information report was lodged by her husband against Zakir Ali and Firoz rather the incident was witnessed by her. The counsel who was engaged for looking after the case has been engaged by her husband. She has not rendered any tutored statement. The disgusting and disgraceful words used by the culprit cannot be exposed by her. The prosecution examined Azad Ali (P.W.3) who deposed that he was fully conversant with Firoz who was residing in his Mohalla. The deceased Afrin who is his niece was studying in class-IV in Sahara Public School. The victim was aged about 10 years at the point of time of incident. In the routine manner, his niece moved out from home on 16.8.2013 at about 7.40 a.m. with bag for covering the distance of school. The victim associated with his daughter Falak moved towards school. The victim Afrin was accompanied with her mother and father upto door. When the victim Afrin and his daughter Falak reached at the road running from Dhaka Talab near the dairy of Zakir Ali, at that very crucial moment, the accused Firoz equipped with spade came from the side of Dhaka Talab. There was some confabulation between Afrin and the accused Firoz. The accused jostled to Afrin as a result of which she fell and the accused appellant equipped with spade hit at her neck and the head was dissociated from thorax and was lying at some distance. In the meantime, the father of the deceased Ikrar Ali ,mother Tahira Bano ,Anwar Ali and P.W.3 Azad Ali raised alarm. All the persons tried to nab the accused appellant but the accused appellant was not apprehended. The accused appellant ran towards the lane with spade. While disappearing from the place of occurrence, he was hurling offensive and shameful words extending threats to life. Earlier to 4/5 days, the accused appellant had approached to the family members of the deceased for taking accommodation on rent. The father of the deceased had refused to give any accommodation on rent as a sequel of which he was rearing animus and grudge and as a consequence thereof caused death to Afrin. Earlier to 4/5 days, the accused appellant had approached to the family members of the deceased for taking accommodation on rent. The father of the deceased had refused to give any accommodation on rent as a sequel of which he was rearing animus and grudge and as a consequence thereof caused death to Afrin. Azad Ali (P.W.3) had identified the accused appellant and deposed that he had done to death to Afrin by severing her head from thorax with spade. The incident was witnessed by him. The prosecution has examined Imran Ali (P.W.4) who is the brother of the deceased. He stated that Afrin is his sister. She was studying in class-IV in Sahara Public School. He was in his room erected at the roof on 16th August 2013 at about 7.40 a.m. While Km. Afrin was going to School, his parents proceeded towards the door to leave her. He heard his mother and parents shrieking that Afrin was killed by Firoz. He stepped down running and saw that the head of his sister Afrin was disintegrated from thorax and the accused Firoz was running towards Dhaka Talab along with spade. He ran to nab the accused Firoz but his mother was stumbling on the ground, he was engaged in giving solace to her. After the incident, the police came on the spot and collected Afrin's bag, slipper, blood stained earth etc. and put under seal on which he had put his signature. Recovery memo relating to blood stained earth, plain earth , slipper , school bag etc. was prepared and were marked as Exhibit Ka.2,Ka.3 and Ka.4. Further it was narrated by him that he was informed by his younger brother Rizwan Ali that the police personnel were taking Firoz toward Shahwajnagar. On this secret information, he (Imran Ali P.W.4) with his brother Rizwan went towards that direction on motor cycle. It was seen by him that the police personnel had got off him ahead to Chandni culvert. He and his brother were also stopped by the police personnel . When the accused appellant hinted to go in the lead , the police personnel allowed him to lead. The accused appellant entered in a house and came out equipped with spade in his hand. It was unfolded by the accused appellant that it is the same spade which was used for committing murder of Afrin on 16.8.2013. When the accused appellant hinted to go in the lead , the police personnel allowed him to lead. The accused appellant entered in a house and came out equipped with spade in his hand. It was unfolded by the accused appellant that it is the same spade which was used for committing murder of Afrin on 16.8.2013. The spade was soaked with blood. The spade was sealed in a cloth on the spot by the police personnel on which signature of Imran Ali (PW.4)was put and the same was identified by him. Imran Ali (P.W.4) proved the recovery of weapon of assault which was marked as Exhibit Ka.5. Imran Ali (P.W.4) further identified the accused-appellant who was present in the court and has stated that he resides in his Mohalla. The prosecution has examined Dr. Suresh Kumar (P.W.5) Senior Counsellor , District Hospital, Shahjahanpur who had conducted autopsy of the deceased Afrin on 16.8.2013 at about 4.15 hours. It was pointed out by him that corpse was brought by CP 1500 Sirtaj Khan and CP 640 Sher Singh ,Police Station Sadar Bazar District Shahjahanpur. The dead body was identified by Rizwan Ali and Mehraj Ali . The general height of the deceased was 118 cm ,medium and average built. Rigour mortis was present around both hands and feet. The eyes and mouth were closed. The corpus of the deceased was brought in two parts disintegrating the head from thorax. The doctor had opined that the death had occurred on account of ante-mortem injuries ,hemorrhage and shock. The doctor opined that death of the victim had occurred on 16.8.2013 at 7.40 a.m. on account of causing injury with sharp spade. The injuries was sufficient to cause death. The doctor had proved the post mortem report which was marked as Exhibit.Ka 6. The prosecution had examined Nazakat Ali CP Constable 288 who was posted at Head Clerk at Police Station Sadar Bazar. He had proved the chick FIR and GD which were marked as Exhibit Ka.7 and 8 The prosecution had examined Subedar Singh Inspector (Investigating officer) P.W.7 who had held the investigation and submitted the charge sheet against the accused appellant vide Exhibit Ka.15 and the same was proved him. He had proved the site plan which was marked as Exhibit Ka.9. He had also stated that he had collected blood stained and plain earth in separate container. He had proved the site plan which was marked as Exhibit Ka.9. He had also stated that he had collected blood stained and plain earth in separate container. School bag of which memo was prepared was also proved. The recovery of weapon of assault and the site plan from where weapon was recovered was marked as Exhibit Ka.10. He had also proved the report of the Forensic Science Laboratory which were marked as Exhibit Ka.18,19,& 20. We have heard Sri Vinayak Mithal, Amicus Curaie representing the appellant and Sri Ali Murtaza learned AGA and have gone through the record. During the course of argument, main thrust of the learned counsel for the appellant was that the spade with which injury was alleged to have been caused was never produced before the court in the presence of Dr. Suresh Kumar (P.W.5) during the course of trial to connect the injury with the weapon. The spade Ext.6 was produced subsequently before the investigating officer who is not an expert to say about injury caused by the same weapon, hence the order dated 25.1.2018 passed by this Bench is delineated here-under :- The instant appeal has been filed against the judgment and order dated 27.7.2016 passed by the Additional Sessions Judge, Court No.8, Shahjahanpur whereby the appellant has been awarded capital punishment with fine of Rs. 20,000/- in Sessions Trial No. 601 of 2013 arising Case Crime No. 529 of 2013 under sections 302/504/506 IPC Police Station Sadar Bazar District Shahjahanpur. Reference has also been made by the trial court for confirming the sentence. This appeal has been pending since the year 2016 and during the course of arguments, some relevant facts have come into light which are essentially required to be verified by the court below for proper adjudication of justice. The noticeable feature of this case is that the appellant has been convicted and sentenced on the charges of fiendish and barbarous murder of a minor girl with spade. It has emerged during the course of arguments that the weapon used in the commission of said offence upon the minor girl was not asked for by the defence at the time of recording the testimony of the P.W.5 Dr. Suresh Kumar who had conducted autopsy of the deceased. All the incriminating materials were produced and exhibited after examination of Dr. Suresh Kumar who had conducted autopsy of the deceased. All the incriminating materials were produced and exhibited after examination of Dr. Suresh Kumar (P.W.5) when the statement of the Investigating Officer was recorded. The spade was exhibited as Exhibit Ka.6. It was incumbent upon the defence to raise the plea before the trial court to produce the weapon of assault when the Dr. Suresh Kumar (P.W.5) was being examined for corroboration of autopsy and deposition whether the injury was caused with spade. When the statement under section 313 Cr.P.C. of the accused appellant was recorded, he has also not unravelled any desire to expose that the weapon of assault was never produced when the Dr. Suresh Kumar (P.W.5) was examined. It does not enlighten from the record that the attention of the Doctor had been drawn by the trial court seeking explanation from the prosecution to produce the weapon of assault. Since reference has also been made for confirmation of capital sentence awarded by the trial court, this Court is inclined to invoke provisions of section 367 Cr.P.C. Section 367 (1) Cr.P.C. contemplates that if when such proceedings are submitted, the High Court thinks that a further inquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such enquiry or take such evidence itself, or direct it to be made or taken by the Court of Session. Having regard to the overall facts and also onus cast upon the High Court to deal with the reference, we direct a further inquiry by the learned Sessions Court for taking the additional evidence in this regard. The trial court record is remitted back with a direction to the Sessions Court to get produced the Exhibit Ka.6 Spade from Malkhana and also to summon the Dr. Suresh Kumar (P.W.5) who was posted as Senior Counsellor at District Hospital, Shahjahanpur on a fixed date to ascertain thenature of injury inflicted upon the victim with spade in the presence of complainant, the accused appellant and their counsel. The Sessions Judge after recording the opinion of the Dr. Suresh Kumar (P.W.5) and the additional statement of the accused appellant under section 313 Cr.P.C. and defence evidence under section 233 Cr.P.C. if any, shall remit back the lower court record to this Court for consideration. The Sessions Judge after recording the opinion of the Dr. Suresh Kumar (P.W.5) and the additional statement of the accused appellant under section 313 Cr.P.C. and defence evidence under section 233 Cr.P.C. if any, shall remit back the lower court record to this Court for consideration. It is expected that the learned trial Judge shall carry out the entire exercise till 26th February 2018. The office is directed to transmit only the lower court record in sealed cover to the learned Sessions Judge forthwith. Let this case be listed for hearing on 7th March 2018." In that context learned trial court had examined Dr. Suresh Kumar (P.W.5) on 5.2.2018 and the case property spade which was placed under seal cover was also opened before the doctor and the accused appellant. The statement of Dr. Suresh Kumar (P.W.5) was recorded who deposed that he had conducted autopsy of the victim Afrin who was aged about 10 years which was proved vide Ext.Ka.6. He had also stated that at the age of ten years, the physical construction would be very soft and delicate. In case the victim was jostled and fell on the ground ,the spade which is present before this Court vide Ext. Ka.6 is suffice to disintegrate the head from thorax. The nature of injury as shown in the post-mortem examination with spade which is present before the Court is quite possible. The injury no. 4 is possible due to felling down. The spade has been applied for causing injury nos. 1 to 3 as a result of which she had sustained fatal and grim injuries disjointing her neck from thorax. In the cross examination by the defence, it was averred by the doctor (P.W.5) that this spade is sharp-edged and acuminous. Its acumination is running from one corner to another. No blood was existing on the handle of the spade. There is corrosion on the spade. The injury no.4 can be caused by falling. His statement was also recorded on 29.7.2015 . In the said statement it was mentioned that the injury no.4 can be caused by blunt object. Both the statements are correct as a major person can cause such injuries after falling of a delicate and tender age person on the ground. It is wrong to say that for causing such injury it is necessary to press the victim by another person . Both the statements are correct as a major person can cause such injuries after falling of a delicate and tender age person on the ground. It is wrong to say that for causing such injury it is necessary to press the victim by another person . He cannot say as to why the victim was standing there and did not make any effort to run away. It is wrong to say that injury nos.1 to 3 cannot be caused by one person. It is wrong to say that single person can cause such injury only with sword or ghandansa (shovel) , spade and shovel rather this injury can only be caused by spade. The length of handle can be approximately one metre after measuring it accurately. The statement of the accused appellant under section 313 Cr.P.c. was also recorded on 5.2.2018 where he had denied the incriminating circumstances put forth by the prosecution in respect of the spade, the weapon of assault. He had stated that false prosecution was launched against him and had nothing to say in defence. It is argued by the learned counsel for the accused appellant that the accused appellant is a poor labourer and has been falsely implicated in the present case on account of personal vendetta. The incident is alleged to have taken place at bout 7.40 a.m. on 16.8.2013 and the first information report has been lodged at about 12.45 p.m. which itself shows that the first information report has not been lodged in natural and articulate manner. Despite arrival of the police personnel at about 8 O' clock in the morning, the inquest was conducted at 1.30 p.m. and was concluded at 2.30 p.m. on the same day. The lodging of the first information report after delay of several hours itself demonstrates that the first information report has been lodged after due deliberation and consultation and the accused appellant has been subjected to scapegoat on account of evil design and revengeful sentiments of the complainant. The prosecution has made a feeble attempt to strengthen the motive that on account of refusal to provide the accommodation on rent to the accused appellant, the accused appellant has taken drastic and stern step of eliminating and liquidating the daughter of the complainant. The prosecution has made a feeble attempt to strengthen the motive that on account of refusal to provide the accommodation on rent to the accused appellant, the accused appellant has taken drastic and stern step of eliminating and liquidating the daughter of the complainant. It cannot be reckoned as a strong motive for eliminating the daughter of the complainant that he was not provided a room on rent in the same home. The complainant was nurturing animus and grudge against the accused appellant on the count that he was residing in the same Mohalla since childhood and the complainant and his family members were not happy for the reasons best known to them. The accused appellant has been implicated in the present case on suspicion and doubt. The first information report has been lodged with a cryptic averments that the daughter of the complainant was going to Sahara Public School with school bag on 16.8.2013 at about 7.40 a.m. associated with Falak aged about 7 years. The complainant and his wife were standing at the door to leave his daughter Afrin. As soon as his daughter reached at the road running from Station Road to Dhaka Talab in front of dairy of Haji Zakir Ali, at the very crucial moment, the accused appellant Firoz stopped his daughter and started to interrogate. The accused appellant did not squeeze his ire and anger and jostled to the victim as a consequent of which she fell down and attacked with spade causing severance of her head from thorax which itself proves that the complainant and his wife Smt. Tahira Bano had not witnessed the incident as they were claiming to have stood at a distance of 10 to 20 paces and have not made any attempt to chase the accused appellant. After the incident, a number of persons were alleged to have gathered at the place of occurrence but no-one came forward to appear as the witness to support the prosecution case which itself proves that no-one has seen the incident. After the incident, a number of persons were alleged to have gathered at the place of occurrence but no-one came forward to appear as the witness to support the prosecution case which itself proves that no-one has seen the incident. The injury has been caused by unknown person who might have been rearing and nurturing animus and venom design against the complainant and had taken advantage of her aloofness and loneliness whereby the victim Afrin was done to death by severance of head with sharp-edged weapon and the accused appellant has been introduced as a culprit in the camouflage of poignant relation account of refusal to provide accommodation on rent. It is specifically mentioned that Haji Zakir Ali had persuaded the accused appellant in eliminating and liquidating the daughter of the complainant but affidavits have been given delineating innocence of Haji Zakir Ali which itself creates doubt about the contents and narration of facts in the first information report. The investigating officer had submitted charge sheet against the accused appellant only. The fair and impartial investigation has not been done rather the investigation has been done in a tainted and prejudicial manner so as to circumvent the accused appellant in the present case. It is highly improbable that the head of the victim has been severed by the blow of spade. Looking to the nature of the injury, it cannot be said that the said injury has been caused with the blow of spade , thus the statement of the doctor can not elicit any credence and trust. The nature of injury is rounded which cannot be caused with spade. The mode and manner by which prosecution has come up for assaulting with spade as mentioned in the postmortem report is highly dubious and doubtful. It has also been averred by the learned counsel for the accused appellant that Azad Ali (P.W.3) had moved out of his house for leaving his daughter Falak who was associated with victim Afrin. Km. Falak was the best eye witness of the incident but she was not examined. No finger prints were taken from the spade to prove that the accused appellant was the author of the said injury . Km. Falak was the best eye witness of the incident but she was not examined. No finger prints were taken from the spade to prove that the accused appellant was the author of the said injury . All the witnesses are related to each other and no independent witness has come forward to support the prosecution version which proves about the interpolation in the prosecution and creates doubt about the verity and veracity of their statement. There is a bundle of contradictions in the prosecution version, medical testimony and the statement of the witnesses. It is a trite fact that the victim had met to unnatural death which is corroborated from the medical evidence but who was the real assailant cannot be deduced by implicating the applicant merely in the guise of suspicion. Learned trial judge has erroneously passed the impugned judgment and order attaching pivotal significance to the prosecution witnesses without vetting and weighing the material inconsistency in the prosecution version. The conviction and sentence awarded by the learned trial judge placing reliance on the eye witness count is not proper for want of independent corroboration as the presence of the eye witnesses on the spot is highly doubtful. The accused appellant was not arrested at the place of occurrence. The accused appellant was arrested at the secret information and the equipment used in the commission of the crime is alleged to have been recovered from the incomplete house where nobody used to live which itself proves that the spade has been implanted and connected with the said offence. The extra judicial confession made by the accused appellant about killing the victim Afrin could not be proved and no evidence has been adduced on record about last seen theory. The prosecution has failed to prove its case beyond reasonable doubt as the evidence adduced in support thereof were not found to constitute a firm basis upon which capital punishment may be awarded to the accused appellant. The learned Sessions Judge has framed the charges against him merely on suspicion putting at shelf all the material evidence which itself stumbles the prosecution version. The entire prosecution story is rested on uncorroborated facts and evidence and the guilt of the appellant not having been proved to the hilt by the prosecution, the appellant is entitled to the benefit of doubt. The entire prosecution story is rested on uncorroborated facts and evidence and the guilt of the appellant not having been proved to the hilt by the prosecution, the appellant is entitled to the benefit of doubt. The alternate argument of the learned counsel for the accused-appellant is that the learned sessions judge has awarded capital punishment to the accused appellant which is disproportionate to the facts and circumstances of the case. Generally the court awards life imprisonment to the convict in a murder case. Only in rarest of rare cases, murder convict is given death penalty. Life sentence is the rule and the death sentence is an exception. There is no statutory definition of rarest of rare cases. While awarding a convict to capital punishment facts and circumstances of the particular case, gravamen of the crime, conduct of the offender ,previous history of his involvement in crime ,chances of reforming and integrating into the society must be taken into account. It may also be considered as to whether the survival of an orderly society demands extinction of life of the accused person who has committed the offence and whether failure to impose death penalty on him would bring to naught the sentence of death provided under section 302 IPC. In awarding death sentence, the Court must have considered the fact that retributive theory is no longer valid but instead deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. Brutality of the crime in every case would not make the case rarest of the rare case. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. The absence of apparent motive on the part of the accused and who has no criminal history and the mitigating circumstances has a material bearing on the question of sentence hence the judgment and order passed by the trial court may be reversed by exercising extraordinary power of appellate jurisdiction. Per contra learned AGA refuted the contention and submitted that the first information report has been lodged naming the accused appellant as the main assailant of the crime. Per contra learned AGA refuted the contention and submitted that the first information report has been lodged naming the accused appellant as the main assailant of the crime. It is a case of murder in broad day light in a devilish and diabolical manner disintegrating the head of the victim aged about 10 years from thorax with spade. The date, place of occurrence and manner of assault has fully been corroborated by the prosecution witnesses. The complicity of the accused appellant fully stood proved as at his pointing the weapon used in the commission of the offence has been recovered and the doctor has confirmed that the head of the victim was disjointed from thorax owing to the blow of spade. The medical evidence clearly reveals that the injury is possible with spade. It is not always necessary to multiply the evidence on the same point. It is the quality of evidence and not the quantity which is required. The evidence of related witnesses cannot be thrown out-rightly on the ground that the other witnesses of the locality have not been produced. The incident had occurred in the presence of Ikrar Ali (P.W.1) and Smt. Tahira Bano (P.W.2) who were standing at 10 to 20 paces. They could not come forward to save the victim because of intrinsic perplexity. The act of the accused appellant was of such infernal and fiendish nature that they were thunderstruck and flabbergasted owing to pang and pain developed in their soul. After gathering the solace and consolation, complainant and his wife burst into lamentation at the door. On their bewailing and moaning, Azad Ali (P.W.3) and Imran Ali (P.W.4) rushed towards the place of occurrence. They were also astonished and astounded to see the severance of the head of victim from thorax. The prosecution witnesses do not have any reason to omit the real culprit and implicate falsely to the accused appellant. It is difficult to imagine how a witness would act or react to a particular incident. His action depends upon a number of imponderable aspects. In case there is any deviation or aberration in the statement of the prosecution witnesses, it will not overshadow the entire evidence. The discrepancies if any in the prosecution version would occur due to normal errors of perception or due to longevity of time. His action depends upon a number of imponderable aspects. In case there is any deviation or aberration in the statement of the prosecution witnesses, it will not overshadow the entire evidence. The discrepancies if any in the prosecution version would occur due to normal errors of perception or due to longevity of time. In the present case the witnesses are parents and close relative of the deceased and their presence on the spot was natural and duly explained. Their testimony is fully corroborated by medical evidence and the recovery of weapon of assault at the instance and pointing of the accused appellant. The prosecution witnesses withstood the test of cross cross examination hence their testimony cannot be disbelieved only because of their relationship with the victim. The statement of the prosecution witnesses on proper scrutiny and examination was found to be true and trustworthy which inspires the confidence with regard to involvement of the accused appellant in the present case. The love and affection of the prosecution witnesses would create a psychological hatred and disgust against the accused and may be guided by a spirit of revenge and nemesis which may prompt them to state unconsciously some facts in exaggerated and imaginative manner. The prosecution witnesses have attributed overt act upon the accused appellant for causing fatal injuries disintegrating head of the victim from thorax. The accused appellant had killed the victim while she was going to Sahara Public School stood fully proved by the testimony of the prosecution witnesses. The plea of defence that a number of persons of the locality gathered at the place of occurrence but no one has come forward to support the prosecution version cannot be a ground to discard the testimony of the prosecution witnesses as the presence of prosecution witnesses on the place of occurrence was found natural. The extra judicial confession of the accused appellant was also natural and reliable as he has failed to render the evidence unreliable. It is a case of ghastly murder of a teenage girl aged about 10 years. The manner in which the accused appellant killed the victim was not only infernal and fiendish but reflected his beast like mental attitude. It was rightly considered as a rarest of rare case and the capital punishment was right awarded owing to brutal and diabolic nature. The involvement of the accused appellant was established beyond reasonable doubt. The manner in which the accused appellant killed the victim was not only infernal and fiendish but reflected his beast like mental attitude. It was rightly considered as a rarest of rare case and the capital punishment was right awarded owing to brutal and diabolic nature. The involvement of the accused appellant was established beyond reasonable doubt. The act of the accused appellant was very brutal cold blooded as the same was carried out in such a demonic manner for which nothing less than death sentence would meet the end of the justice. There is no mitigating circumstances available on the basis of which the death sentence may be altered to lesser punishment. The motive is a subjective element which is not ex-facie present in all cases. All the circumstances surrounding the act of the accused would lead to the inference that the accused intended to cause death. A single blow with spade applying violent force on vulnerable and vital part of the victim of tender age of ten years can easily give rise to the presumption that the intention of the assailant was to take away the life of the victim. The blow with spade on the neck of the victim on account of which she succumbed to injury, this fact alone draws the requisite intention of the accused appellant. The inference of motive can be drawn when fatal blow was caused from a point blank range which was sufficient in the ordinary course of nature to cause death. The attack on the neck of tender age cannot be said to be unintended as the medical evidence showed that the injury was sufficient in all probability to cause her death. Thus the accused appellant does not deserve to be exculpated at the dint of passing the hostility upon others. The appellant has rightly been convicted for murder as the witnesses account is consistent and reliable. The eye witnesses testimony was duly corroborated by the medical evidence. The autopsy of the deceased Afrin confirmed that the injury inflicted on the neck of the victim can easily be caused with acuminous weapon. The motive in the present case became insignificant when the prosecution had established its case beyond reasonable doubt. The eye witnesses testimony was duly corroborated by the medical evidence. The autopsy of the deceased Afrin confirmed that the injury inflicted on the neck of the victim can easily be caused with acuminous weapon. The motive in the present case became insignificant when the prosecution had established its case beyond reasonable doubt. The prosecution case for want of corroboration by independent witness cannot be rejected as the public are generally reluctant to come forward to narrate and unfold the occurrence so as to desist from inviting any displeasure and exasperation. The crime done by the accused appellant comes within the precinct of gravest cases of extreme culpability hence it falls within the category of rarest of rare hence the judgment and order passed by the court below may be affirmed as the capital punishment is natural response to crime. The overt act of the accused appellant stood conspicuously proved as he has committed the devilish and hellish act of severance of head of a ten year old victim from thorax, hence the judgment and order passed by the court below is liable to be maintained. Before expressing any opinion on the merits of the case, it would be feasible to analyze the rival submissions advanced by the learned counsel in the light of the prosecution version and the defence taken by the accused appellant. It is conspicuous that the first information report has been lodged by the father of the deceased narrating the incident in natural manner. During the course of arguments, main thrust of the learned counsel for the accused appellant was that the weapon used in the commission of the said offence upon the minor girl was never placed at the time of recording the testimony of Dr. Suresh Kumar (P.W.5) who had conducted the autopsy of the deceased. On this query of learned counsel for the appellant, vide order dated 25.1.2018, lower court record was sent to the learned Sessions Judge Shahjahanpur to ascertain the nature of injury inflicted upon the victim. The additional statement of Dr. Suresh kumar (P.W.5) and the accused appellant under section 313 Cr.P.C. were recorded on 5.2.2018 before the Additional Sessions Judge Court no.8 Shajahanpur. The query of the learned counsel for the accused appellant stood fully satisfied as the spade was produced before the P.W.5 Dr. Suresh Kumar who had clearly stated that the injuries no. The additional statement of Dr. Suresh kumar (P.W.5) and the accused appellant under section 313 Cr.P.C. were recorded on 5.2.2018 before the Additional Sessions Judge Court no.8 Shajahanpur. The query of the learned counsel for the accused appellant stood fully satisfied as the spade was produced before the P.W.5 Dr. Suresh Kumar who had clearly stated that the injuries no. 1, 2 & 3 shown in the post mortem report were of spade caused by a single blow . The girl was of soft and delicate age who had succumbed to the ante-mortem injuries. As such the doctor (P.W.5) had confirmed that the injuries no.1 to 3 were caused with the same spade. In his statement under section 313 Cr.P.C. the accused appellant had not led any proof in confrontation that such injury cannot be caused with spade. The stand of the learned counsel for the accused appellant with regard to ante-registration and the delay in lodging the first information report stood fully negated as there is no adverse suggestion from the side of the investigating officer or the Morharrir who had registered the first information report. The learned counsel for the accused appellant cannot derive any benefit controverting the factum of the first information report without placing any convincing and trustworthy material in rebuttal and reversal. There is nothing in the cross examination by the defence to doubt about the verity and truthfulness of the prosecution witnesses. The first information has been lodged in a very natural and intrinsic manner. The minor delay in lodging the first information report will not belie the entire prosecution case. The investigating officer had commended the process of preparing the challan lash, photo lash, site plan and other requisite papers for sending the corpse at the mortuary. The corpse of Afrin was duly sealed and was taken to the mortuary for autopsy by CP 1500 Sartaj Khan and CP 640 CP Sher Singh. The investigating officer had collected blood from the place of occurrence and prepared its recovery memo and serologist confirms human blood. The inquest report was prepared at the place of incident. The dead body was dispatched. Thus the place of occurrence is proved beyond reasonable doubt by overwhelming evidence on record. Any discrepancy in the inquest report or post mortem report can neither be termed to be fatal to warrant any benefit to the appellant. The inquest report was prepared at the place of incident. The dead body was dispatched. Thus the place of occurrence is proved beyond reasonable doubt by overwhelming evidence on record. Any discrepancy in the inquest report or post mortem report can neither be termed to be fatal to warrant any benefit to the appellant. The Apex Court in the case of Thaman Kumar Versus State of Union Territory of Chandigarh reported in 2003 Vol. 47 ACC page 7 SC has held as under :- "The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.'' In our opinion there is no contradiction or conflict between the oral testimony and medical evidence. The post mortem of the deceased Afrin was conducted by Dr. Suresh Kumar (P.W.5) who proved the post mortem report and opined that the injuries no.1 to 3 were caused with spade. The cause of death of the deceased Afrin was due to shock as a result of ante-mortem injuries. The post mortem of the deceased Afrin was conducted by Dr. Suresh Kumar (P.W.5) who proved the post mortem report and opined that the injuries no.1 to 3 were caused with spade. The cause of death of the deceased Afrin was due to shock as a result of ante-mortem injuries. So far as motive is concerned motive is an awareness in the psyche of the wrongdoer to do a particular act. There can be no action without motive which must be existing in every voluntary act. There is no material to disprove the manner of assault, time and place of occurrence. Prosecution cannot be thrown upon merely because there is feeble and fragile motive. In criminal cases, question of motive is of very trivial significance when there is credible and reliable oral evidence to prove the guilt of the appellant. All the links in the chain are complete pointing towards the guilt of the accused. Every hypothesis of innocence of the accused appellant stood negatived in view of clinching material available on record. The oral testimony of the Ikrar Ali P.W.1 and Tahira Bano P.W.2 fully corroborates that the accused appellant was present at the place of occurrence. The learned trial judge has taken much care in evaluating their evidence and testimony. It would also not be feasible to overshadow the entire prosecution case for want of any independent witness when the case is fully corroborated by the testimony of witnesses and the medical evidence. In the case of Hemraj Versus State of Haryana 2005 (52) ACC Page 258 SC., it has been observed that "Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution". It is settled decision that there is no proposition in law that relatives are to be treated as untruthful witnesses just because witnesses are related to the deceased would be no ground to discard their testimony if otherwise their testimony inspires confidence. In the case of Birendra Rai versus State of Bihar (2005) 9 SCC 219 , the Apex Court had observed that "Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case, if witnesses examined by the prosecution are found to be truthful and reliable. Moreover we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons ". Moreover we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons ". No adverse inference could be drawn against the prosecution with regard to probability if any, suggested by the learned counsel for the appellant. There is no justification to negate the evidence of the witnesses and medical testimony on the ground of surmises and conjectures as well as preponderance of probabilities. The behaviour of the witnesses varies from person to person. Different people behave and react differently in different situation. In the case of State of U.P. Versus Devendra Singh 2004 (10) SCC 616 observed that "human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Some may remain tight-lipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.'' The cumulative effect of entire facts and circumstances of the case are consistent demonstrating the complicity of the appellant in the commission of offence. The weapon of assault was recovered at the pointing of the accused appellant which has fully established his conduct viz-a-viz other relevant circumstances of the case. Section 354 (3) Cr.P.C. 1973 requires a judge to give "special reasons" for awarding death sentence. The capital sentence can be awarded only in the grim and gravest cases of extreme culpability where the Court is constrained to send the convict to the gallows as the convict is such a dangerous person that to spare his life will endanger or imperil the community. The capital sentence can be awarded only in the grim and gravest cases of extreme culpability where the Court is constrained to send the convict to the gallows as the convict is such a dangerous person that to spare his life will endanger or imperil the community. The crime committed by the accused appellant is not only shocking cruel, heinous and dastardly but also reflected his beast like mental attitude. Learned Sessions Judge has rightly relied upon the testimonies of the witnesses which were corroborated by the medical evidence and investigation hence we also confirm the finding of conviction recorded by the learned trial judge. The question which arises for serious consideration is whether imposition of death penalty upon the appellant in the facts and circumstances of the case would be justifiable. Under the old code of criminal procedure, ample discretion was given to the court to pass death penalty as a general proposition and the alternative sentence of life imprisonment could be awarded in the exceptional circumstances that too after advancing special reasons for making this departure from the general rule. The new Code 1973 has entirely reversed the rule of sentence for life imprisonment is now a rule and the capital sentence is an exception. It has also been made obligatory on the court to record special reasons if ultimately capital sentence is to be awarded. The Constitutional Bench of the Supreme Court in the case of Bachan Singh versus State of Panjab AIR 1980 SC Page 898 while upholding constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative opinion of lesser sentence is unquestionably foreclosed. The learned trial judge has treated the case of the appellant to be a rarest of rare cases . We have examined the reasoning of the learned Sessions Judge awarding the death sentence to the appellant Firoz. The punishment of death sentence is not proportionate to the degree that the sentence of life imprisonment would be altogether inadequate. The death sentence is awarded only in the exceptional cases as it would constitute a continuing threat to society and he cannot be reformed or rehabilitated. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them to see reason. The death sentence is awarded only in the exceptional cases as it would constitute a continuing threat to society and he cannot be reformed or rehabilitated. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them to see reason. Passage of time may make them to ponder over the crime they had committed. This might arouse in him a feeling of remorse and repentance. The case in hand not being one of the rarest of rare cases imposition of the death penalty would not be justified, a sentence of life imprisonment would meet the ends of justice. In the light of prolix and verbose discussion, the appeal is accordingly dismissed with modification that the sentence of capital punishment awarded to the accused-appellant by the trial court under section 302 IPC is converted into imprisonment for life. The sentence awarded under section 504 & 506 IPC by the trial court is hereby confirmed which shall run concurrently. The appellant is in jail and shall be detained in jail to serve out the sentence of life imprisonment. While dealing with the Reference for confirmation of a sentence of death, we have re-appraised and reconsidered the entire facts and law after taking additional evidence and have come to its own conclusion on the material on record in regard to the confirmation of conviction and sentence of the accused appellant that the present case does not fall within the category of rarest of rare cases therefore, the Reference for confirmation of capital punishment made by the Additional Sessions Judge court No.8 Shahjahanpur is rejected. Office is directed to transmit the lower court record to the trial court . Judgment be certified and placed on record. We record our appreciation that the learned Amicus Curiae has rendered his valuable assistance in a very able manner. The learned Amicus Curiae Sri Vinayak Mithal shall be paid Rs. 12,000/- by the Legal Services Authority towards his remuneration forthwith.