JUDGMENT Joymalya Bagchi, J. 1. Appellant was convicted for murdering of his wife and sentenced to death and to pay a fine of Rs.10,000/-, in default, to suffer imprisonment for three months. 2. Being aggrieved by the aforesaid judgment and order, he has preferred the instant appeal. Reference has also been made to confirm the death sentence. 3. Prosecution case as levelled against the appellant is to the effect that he had married Namita Hazra thirty years ago. They had two sons viz., Palash and Kalosona aged about 26 and 24 years respectively. On 30.06.2007 at about 9.00 A.M. appellant had gone to the market. He returned around 10.30 A.M. with a boy viz., Bikash Das (PW3) of Bhagason village. Appellant handed over a table fan to him. After Bikash left, a quarrel ensued between appellant and Namita over the issue of giving the table fan to Bikash. Incidentally, a day before Bimal Ghosh, brother of Namita had come to her matrimonial home. He pacified the couple. Namita went upstairs while the appellant started watching television with his brother-in-law, Bimal. Around 11.10 A.M. appellant went upstairs. A few minutes later, Bimal heard the sound of a table fan falling. He rushed upstairs and found his sister lying with bleeding injuries on the bed. Appellant was standing with a bogida (Scimitar) in his hand. He was wearing only an under pant and had blood stains on his body. Bimal raised hue and cry. Appellant fled away from there. Bimal chased him but realising his sister was in precarious condition went upstairs. Unfortunately, his sister had died. After some time, Palash, elder son of the couple returned home. Then Bimal went to the police station and lodged first information report resulting in registration of Monteswar Police Station Case No.51 of 2007 dated 30.06.2007 under Section 302 of the Indian Penal Code. 4. In the course of investigation, the weapon of offence was seized. Appellant was arrested and charge sheet was filed. Charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. 5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. Appellant was arrested and charge sheet was filed. Charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. 5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, trial Judge by the impugned judgment and order dated 04.01.2018 and 05.01.2018 convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to death. 6. Mr. Malay Bhattacharyya with Mr. Subhrojyoti Ghosh, learned Advocates for the appellant argued none of the witnesses had seen the incident. Presence of PW1 at the residence of the appellant is unlikely. He is an interested witness. PWs5 and 7 are post occurrence witnesses. FSL report does not confirm the presence of human blood on the weapon of offence i.e. bogida (Scimitar). Hence, prosecution case has not been proved. Imposition of death sentence is wholly disproportionate and not justified in the factual matrix of the case. 7. On the other hand, Mr. Partha Pratim Das, learned Advocate for the State submits PW1 was present in the house when the incident occurred. Hearing hue and cry, he went upstairs and saw the appellant standing with a bogida (Scimitar). He had bloodstains on his body. Soon thereafter, he fled. His deposition is corroborated by PWs5 and 7, who are nieces of the appellant. He further submitted neighbours i.e. PWs8 and 9 corroborated the prosecution case. Soon after the incident, appellant rushed to the residence of PW9 with bloodstains. PW9 saw the appellant at koltala (beside a tap). Thereafter, the appellant fled away from the village. He was seen by PW13. Appellant had snatched a gamcha from him. PW11, post mortem doctor proved the post mortem report. Extensive sharp cutting injuries were found on the head and neck of the deceased which corroborated the prosecution case. Conviction and sentence of the appellant is to be upheld. 8. PWs1, 5 and 7 are the most vital witnesses. 9. Bimal Chandra Ghosh (PW1) is the brother of the deceased. He had come to his sister’s matrimonial home the day before i.e. 29.06.2007. On 30.06.2007 his sister’s husband i.e. the appellant went to the market at 7.00 AM. He returned around 10.00 AM with one Bikash Das. 8. PWs1, 5 and 7 are the most vital witnesses. 9. Bimal Chandra Ghosh (PW1) is the brother of the deceased. He had come to his sister’s matrimonial home the day before i.e. 29.06.2007. On 30.06.2007 his sister’s husband i.e. the appellant went to the market at 7.00 AM. He returned around 10.00 AM with one Bikash Das. He gave a table fan to Bikash Das. A quarrel ensued between the appellant and his sister. He settled the quarrel. He took away the appellant and both of them started watching T.V. In the meantime, his sister went upstairs. At 11.10 A.M. the appellant left the room. Suddenly, he heard the sound of a table fan falling. He went upstairs and saw his sister lying in front of telephone in bleeding condition. Appellant had a bogida (Scimitar) in his hand. On seeing him, appellant went downstairs. He raised hue and cry. Nieces of the appellant came to the spot. Appellant kept the bogida in the house and ran away. Villagers saw him running away wearing only an underwear. Other people as well as son of the deceased also came to the spot thereafter. He went to the police station and lodged first information report. He signed on the inquest report. Police seized the weapon of offence i.e. ‘da’, wearing apparels of his sister and bloodstained bed sheet. He signed on the seizure list. He identified the articles in Court. He was cross-examined at length but remained unshaken with regard to material particulars. 10. PWs.5 and 7 are the nieces of the appellant. 11. Rituparna Hazra @ Debjani (PW5) deposed that the appellant was her elder Jathamoshai (elder uncle). She was in the house around 10.00 to 11.00 A.M. on 30.06.2007. Bikash Das (PW3) came to the house and took a table fan. An altercation ensued between the appellant and his wife. She separated them. Victim went upstairs to call his elder son. Appellant followed him. She again intervened. Appellant came down and started watching T.V. with Bimal Mama (PW1). Then PW5 went out of the house. She suddenly heard a sound and informed Bimal Mama. They went upstairs and saw the appellant coming downstairs. He had bloodstains on his body. He was carrying a bogida (Scimitar). They rushed upstairs and found the victim lying in bleeding condition. 12. Kuheli (Hazra) Chattopadhyay (PW7) is the another niece of the appellant. Then PW5 went out of the house. She suddenly heard a sound and informed Bimal Mama. They went upstairs and saw the appellant coming downstairs. He had bloodstains on his body. He was carrying a bogida (Scimitar). They rushed upstairs and found the victim lying in bleeding condition. 12. Kuheli (Hazra) Chattopadhyay (PW7) is the another niece of the appellant. She was in an adjoining house at the time of the incident. Hearing shouts she came to the house and saw the appellant was standing with a bloodstained bogida (Scimitar). He was wearing an underwear. He had bloodstains on his body. Bimal Mama told her that appellant had committed murder. Bimal Mama tried to catch the appellant but he failed. 13. Bikash Das (PW3) deposed he had come to the residence of the appellant at 10.00 A.M. He took away the table fan on rental basis. Subsequently, he heard that appellant had murdered his wife with bogida (Scimitar). 14. Sabyasachi Hazra (PW2) is the son of the victim. He is a post occurrence witness. He deposed at 11.30 A.M. Debjani (PW5) came on a cycle and informed him that his father had assaulted his mother with a bogida (Scimitar). He rushed to his residence. He found his mother lying with bleeding injuries. She had died. After one and half hours, he went to the police station. His Mama lodged first information report. He was a signatory to the inquest. Police seized the bogida (Scimitar). He was a signatory to the seizure list. 15. The aforesaid evidence clearly portrays the genesis of the incident. On the fateful day i.e. 30.06.2007, appellant had gone to the market at 9.00 A.M. He returned around 10.00 A.M. Bikash Das (PW3) also came to his residence. He handed over a table fan to Bikash Das on rental basis. After Bikash left, a quarrel ensued between the couple over this issue. Appellant became agitated. Bimal, brother of the deceased was in the house. He pacified the appellant and made him watch television. In the meantime, the victim went upstairs presumably to make a phone call to his son. Around 11.10 AM., appellant went upstairs. Soon thereafter, Bimal heard sound of a fan falling. He rushed upstairs and found the appellant standing with a bogida (Scimitar) in his hand. He had bloodstains on his body. He was wearing only an underwear. 16. In the meantime, the victim went upstairs presumably to make a phone call to his son. Around 11.10 AM., appellant went upstairs. Soon thereafter, Bimal heard sound of a fan falling. He rushed upstairs and found the appellant standing with a bogida (Scimitar) in his hand. He had bloodstains on his body. He was wearing only an underwear. 16. Learned Advocate for the appellant contended presence of Bimal at the place of occurrence is unlikely. He is a relation of the deceased and an interested witness. The submission is of little substance. Bimal is the brother of the deceased. He explained on 29.06.2007 he had come to her residence. His version with regard to the incident is corroborated by none other than the relations of the appellant himself. PWs.5 and 7 are the nieces of the appellant. PW5 was present in the house when quarrel started between the couple. She had separated them and thereafter appellant started watching television with his brother-in-law Bimal. At that juncture, PW5 left the house. Soon thereafter, she heard a sound and rushed back and saw the appellant was standing with a bogida (Scimitar) in his hand. His body was bloodstained. Another niece (PW7) also corroborated the aforesaid version. 17. It is true there are minor discrepancies in the manner in which the witnesses went upstairs and saw the appellant standing with a bloodstained bogida (Scimitar). However, such discrepancies are minor and do not affect the crux of the prosecution case that the appellant was seen standing with a bogida beside his wife’s mutilated body. He had bloodstains on his body too. 18. Evidence of the aforesaid witnesses are corroborated by neighbours too. Sanat Kumar Ghosh (PW9), a neighbour deposed around 11/11.30 A.M. appellant came to his house bare bodied wearing only an underwear. He had bloodstains on his body. He called PW8 who corroborated his version in Court. Soon thereafter, appellant was seen rushing away from the village by Khudiram Ghosh (PW13). He stated that the appellant who was bare bodied had snatched a gamcha from him. 19. Ocular version of the witnesses is corroborated by the medical evidence on record. Dr. Abhirup Mandal (PW11) and Dr. Kabita Roy (PW12) held post mortem over the body of the deceased. They found the following injuries. “…. One sharp cutting injury on the lower back portion of the head extending neck upto right side. 19. Ocular version of the witnesses is corroborated by the medical evidence on record. Dr. Abhirup Mandal (PW11) and Dr. Kabita Roy (PW12) held post mortem over the body of the deceased. They found the following injuries. “…. One sharp cutting injury on the lower back portion of the head extending neck upto right side. The bond was cut and brain matter was exposed. It was 6” long and bone deep. Injury also deep and sharp-cutting, found in the name of the neck measuring 4” x 2”, the third injury was extending right scapula margin and the 4th injury, (sharp cutting) on the right dorsal outer aspect on right hand extending from elbow to wrist joint. Bone was exposed.” They opined death was due to shock and hemorrhage ante mortem and homicidal in nature. PW11 further held that the injuries could be caused by a sharp-edged weapon like bogida (Scimitar). The post mortem report was exhibited as Ext.6. 20. PW16, SI, Dayal Prasad Tewari is the investigating officer. He came to the place of occurrence. He prepared inquest over the dead body. He seized bed sheet and the weapon of offence. He prepared seizure list, Ext.3/2. He sent the seized articles for FSL examination. He arrested the appellant and submitted charge sheet. After obtaining FSL report, he submitted supplementary charge-sheet. 21. It is argued that the recovery of seized weapon is doubtful and the FSL report is inconclusive. PW1 stated the appellant while fleeing had left the bogida (Scimitar) behind. His deposition corroborates the recovery of bogida (Scimitar) from the place of occurrence. The seizure was witnessed by PWs.1 and other witnesses. In view of the overwhelming evidence on record, failure to produce FSL report to prove presence of human blood on the seized weapon cannot be a ground to improbabilise the ocular version of the prosecution witnesses. 22. It may not be out of place to note the appellant had during his examination under Section 313 of the Code of Criminal Procedure admitted the substantive parts of the prosecution case. He stated that the seized saree belonged to his wife and bogida (Scimitar) (weapon of offence) also belonged to them. He also admitted he was seen by P.Ws. 9 and 13 while he was running away. 23. From the aforesaid evidence on record, I am of the opinion the prosecution case has been proved beyond doubt. 24. He stated that the seized saree belonged to his wife and bogida (Scimitar) (weapon of offence) also belonged to them. He also admitted he was seen by P.Ws. 9 and 13 while he was running away. 23. From the aforesaid evidence on record, I am of the opinion the prosecution case has been proved beyond doubt. 24. Learned Trial Judge has imposed death sentence upon the appellant. While doing so, he stated that the murder was conducted in a brutal manner and demonstrated exceptional depravity. The appellant had killed his wife in a cool and calculated manner and had fled away from the place of occurrence. 25. In Bachan Singh vs. State of Punjab (1980) 2 SCC 684 ), the Hon’ble Apex Court held life imprisonment is the rule and death sentence is the exception. It observed as follows:- “209. … Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency — a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” (emphasis supplied) 26. In Machhi Singh vs. State of Punjab (1983) 3 SCC 470 , the Apex Court held prior to imposing death sentence, the Court must answer the following questions:- “39. … (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?” 27. … (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?” 27. Section 354(3) Cr.P.C. enjoins upon the Court the solemn duty of recording “special reasons” to depart from the rule and impose the exceptional and irreversible death sentence. To do so, the Court must come to a finding that the case falls in the “rarest of rare category”. A balance sheet of aggravating and mitigating circumstances must be drawn to come to such conclusion. One ought not categorise a case in the “rarest of rare category” merely by adverting to the brutality or heinousness of the crime. Only upon a balanced appreciation of aggravating and mitigating factors which relates not only to the crime but to the criminal also such a conclusion may be drawn. 28. The prosecution must also by leading cogent evidence establish that the convict has no possibility of being reformed or rehabilitated. 29. In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498 ) the Apex Court lamented the propensity of trigger happy judges to impose death penalty merely by referring to the brutal and heinous nature of crime and held as follows:- “71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded. 72. …The test which emanates from Bachan Singh [ (1980) 2 SCC 684 ] in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions.” 30. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions.” 30. In the present case, learned Judge has merely adverted to the gravity of the offence and completely lost sight of the mitigating circumstances emerging from the evidence on record. His conclusion that the offence was committed in a cool and calculated manner is a misnomer. There is evidence galore that on the fateful day there was a heated quarrel between the couple over the appellant handing over a table fan to one Bikash on hire basis. 31. This had enraged the appellant and he acted in an impulsive manner. No doubt he hit his wife repeatedly with a sharp cutting weapon causing instantaneous death. But the offence cannot be said to have been a pre-planned one and executed with a cool and clinical mind. It was a crime which was committed in an insane moment of anger and impulsiveness. These circumstances would not persuade this Court to come to a conclusion that the appellant is a hardened inveterate criminal who has no prospect of rehabilitation and reformation. Alternate course of life imprisonment for him is certainly not foreclosed and the imposition of death penalty is wholly unwarranted. 32. For the aforesaid reasons, we set aside the sentence of death and direct that the appellant shall suffer rigorous imprisonment for life and pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for two years more. 33. The appeal is accordingly dismissed. 34. The death reference is accordingly answered. 35. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once. 36. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. Ajay Kumar Gupta, J. I agree.