J.N. HORE. J.

(1) FOR committing murder of Gundi @ Aiman Bibi in the furtherance of the common intention of them both appellants Sk. Saibul @ Saibul Islam and Subhas Mandal were convicted under Section 302/34, indian Penal Code by the learned Additional Sessions Judge, First Court, midnapore and were awarded death sentence. They were also convicted under section 201/34, Indian Penal Code but no separate sentence was passed. Appellant Saibul Islam @ Sk. Saibul was also convicted under section 498a and 304b, Indian Penal Code but no separate sentence was passed in view of the Capital sentence awarded for his conviction under Section 302/34, Indian penal Code Death reference No. 1 of 1991 under Section 366 (1) of the Criminal procedure "code for confirmation of the death sentence and the Criminal appeal No. 271 of 1991 preferred by Sk. Saibul and Subhas Mandal against the said order of conviction and sentence have been heard together and this judgment will govern both.

(2) BRIEFLY stated, the procecution case is as follows:- Gundi Aiman Bibi (deceased), daughter of P. W: I. Sk. Hanif was married with appellant Sk. Saibul @saibul Islam of village Azanbari within P. S. Khejuri, District- Midnapore on 25th Falgoon 1395 B. S. corresponding to 9. 3. 89 according to Muslim rites, which was solemnized by Kazi in presence of witnesses by preparing a kazinama. At the time of marriage a double silver chain, a gold nose ring, a silver nupur and clothings were given by Sk. Hanif to his daughter Gundi aiman Bibi. Hanif also give Rs. 5. 000/- in cash and a wrist watch and clothings to Sk. Saibul at the time of marriage. After marriage Gundi went to her husbands house to cohabit with him. She visited her fathers house on some occasions and on each occasion she complained that her husband was addicted to liquor and gambling and used to assault her and torture her for bringing money from her father. Sk. Hanif who is a poor rickshaw puller could not meet the demand of dowry and he used to appease both his daughter Gundi and his son- in -law Sk. Saibul and used to take back his daughter Gundi to the house of accused Saibul. Gundi came to the house of her father with her husband for the last time on 26th Srabhan 1396 B. S. corresponding to 13. 8. 89 on the occasion of Maharam. Saibul went back to his house on that very day but Gundi stayed at her fathers house for one day. She complained of torture, assault and pressure for bringing money from her parents on that occasion also P. W. I, however, appeased her and took her to her husbands house next day and also tried to appease her husband.

(3) ON 5th Bhadra 1396 B. S. corresponding to 22. 8. 89 at about 7 a. m. in the morning Raibul, brother of Saibul came to the house of Sk. Hanif and told him that his daughter Gundi had left the house of Saibul on the previous night. Hanif being sick sent his wife p. W. 23 Haliman Bibi to the house of Sk. Saibul. In the mean time a dead body of a female was caught in the net of P. W. 17 jhuru Paria who was catching fish with net in the Khal at Kartick Khali which is about three or four miles away from the house of accused Saibul. On discovery of the dead body he informed the villagers including the village chowkidar P. W. 18 Chunilal Mandal. On receipt of Information from Chunilal p. W. 26 S. I. Guiram Ghosh started Khejuri P. S. U. D. case No. 34/89 and visited the place with Constable Sudhir Kr. Ghosh (P. W. 19). In the mean time p. W. 23 Haliman Bibi who could not find accused Saibul in his house went to Kartick Khali Khal on receipt of an information that the dead body of a woman had been recovered from the Khal. She identified the dead body to be that of her daughter Gundi. P. W. 26 held inquest over the dead body, seized the wearing apparel of the deceased and sent the dead body to the morgue for post-mortem examination.

(4) HALIMAN Bibi returned home in the evening and reported to her husband Sk. Hanif about the recovery of the dead body of Gundl from Kartic khali Khal. Next morning on 23. 8. 89 Sk. Hanif wet to the" house of Saibul but could not find him. While he was returning home he met P. W. 25 Lakshman dhara who wrote a complaint according to the (dictation of Sk. Hanif. Sk. Hanif then lodged the written complaint with Khejuri Police Station alleging that his son-in-law Sk. Saibul and others murdered his daughter Gundi and threw / away the dead body in the Khal. P. W. 24 S. I. Shambhunath Sen, the Officer- in-charge of Khejuri P. S. drew up a formal F. I. R on the basis of the said written statement and started Khejuri P. S. Case No. 67 dated 23. 8. 89 against the appellant Sk. Saibul and others and endorsed the case to P. W. 26 S. I. Guiram Ghosh for investigation, P. W. 26 took up investigation in the case. On 21. 8. 89 at about 4. 30 P. M. appellant Sk. Saibul was apprehended by the villagers while he was trying to cross a river by a ferry boat and was taken to khejuri P. S. where P. W. 26 arrested him. In pursuance of a statement made by appellant Saibul police went to a nearby bank of Kartic Khali Khal being led by Saibul where Saibul pointed to a bush and himself picked up from the bush a broken imitation ear ring, broken glass bungles. , broken pieces of bottle and cork etc. which were seized by the police under a seize list in presence of witnesses. Thereafter Saibul led police to Kartic Khali Khal at some distance and brought out a sari belonging to the deceased from underneath mud which was seized by the police under a seize list in presence of witnesses. Thereafter saibul led the police to the house of appellant Subhas Mandal. P. M. 26 arrested Subhas Mandal and in pursuance of the statement of Subhas Mandal and at his instance P. W. 26 recovered a silver necklace with double chain and a gold nose pin belonging to the deceased from inside a room of the house of subhas Mandal and seized them under a seizure list in presence of witnesses. After completion of investigation P. W. 26 submitted charge sheet against the accused persons which in usual course ended in committal of the case to the court of Session.

(5) THE two appellants and one Jiad Khaol were tried under Section 302/34 and 201/34. Indian Penal Code. Sk. Saibul was also charged under Sections 498a and 304b, Indian Penal Code and Subhas Mandal was further charged under Section 411, Indian Penal Code. The accused Jiad Khaol was acquitted of both the charges but the appellants were convicted and sentenced as stated above. The appellants pleaded innocence and the defence case was denial simplicitor. In order to bring home the charges to the accused persons the prosecution examined as many as 26 witnesses while the defence examined none.

(6) THAT the deceased died of violence is not disputed before us and is amply proved by the prosecution P. W. 22. Dr. B. K. Nanda, Medical Officer attached to Contai sub-division hospital who held post-mortem examination on the body of the deceased found the body highly decomposed, swollen and putrefied. The tongue was protruded and there was staggering look. There was light depression in front of the throat. The lungs were found congested. In the opinion of the doctor death was due to throttling which was ante- mortem and homicidal in nature. According to the doctor death of Aiman Bibi Gundi was between 1. 50 A. M. and 4 A. M. on 22. 8. 89. There was no fracture of thyoid bone but the doctor has opined that there may not be fracture of thyoid bone in all cases of throttling. The medical evidence leaves no doubt that it was a case of gruesome murder by throttling.

(7) THE next point for our consideration and the crucial one - is whether the appellants or any of them were responsible for the death of the deceased. There is no eye witness to the occurrence and the prosecution case is based entirely on circumstantial evidence. It is well settled that in cases where evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude any other hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the Innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused

(8) BEARING the above in mind let us now proceed to consider the circumstances relied on by the prosecution and] see for ourselves whether the circumstances have been established beyond reasonable doubt and if so. whether the same are clinching, unerringly pointing to the guilt of the appellants or any of them beyond any reasonable doubt excluding any reasonable hypothesis consistent with the innocence of the accused.

(9) THE factum of marriage of the deceased with appellant Sk. Saibul is not disputed before us and is established by overwhelming evidence, P. M. I Sk. Hanif, father of the deceased, P. M. 23 Haliman Bibi, mother of the deceased and the two neighbours P. W. 15 Dil Moula and P. W. 16 Sk. Alimuddin have all stated in one voice that the deceased was married with Sk. Saibul on 25th falgoon 1395 B. S. corresponding to 9. 3. 89 according to Muslim rites and that after marriage the deceased went to her husbands house to cohabit with him. It also appears from their evidence that the deceased occasionally came to the. house of her father and she last visited her fathers house on the occasion of maharm on 13. 8. 89 only 9 days before her death. The evidence of P. Ws. 1 and 23 also shows that the deceased and appellant Sk. Saibul came together on the occasion of Maharam to the house of P. W. I. This part of the evidence of the witnesses has not been challenged in the cross-examination. In his examination under section 313 Cr. P. C. appellant Saibul, however, denied the factum of marriage. This belated case is falsified by the overwhelming evidence. We may in this connection refer to the evidence of P. W. 2 Mufaden bibi, aunt of appellant Saibul. She has categorically stated that Aiman Bibi gundi, wife of Saibul, conhabitted with Saibal as husband and wife for 6 month before her death. It has been elicited in the cross-examination that saibul was married with Gundi in the month of Falgoon two years before the date of her deposition on 5. 2. 91. it has further been elicited in the cross-examination that the father of the deceased took Saibul and the deceased to his house on the previous day of Maharam in the year in which Bundi expired. She has further stated that after Maharam ceremony Saibul and aiman returned to the house of Saibul. Thereafter, Saibul and Aiman resided together as husband and wife. It is, therefore, clearly established that the deceased was married with appellant Sk. Saibul on 9. 3. 89 about 6 months before her death.

(10) THE evidence of P. Ws. I and 23 also shows that P. W. I. gave a sum of rs. 5. 000/-, a wrist watch and clothings to appellant Sk. Saibul at the time of his marriage with the deceased as dowry. He also gave a gold nose pin, a double silver chain, silver nupur and wearing apparel to the deceased. P. W. I stated in F. I. R. (Ext. 15/1) that at the time of marriage he gave dowry according to his means. He did not specifically mention cash of Rs. 5,000, a wrist watch and wearing apparel. This omission with regard to the details of the dowry is not material in as much as F. I. R. is not an encyclopedia which is expected to contain all the details of the prosecution case. It may often be sufficient if broad facts constituting the prosecution case alone appear. The F. I. R. may not contain all the details stated in Court. That apart, the evidence of PW 23 does not suffer from any blemish and in fact her testimony in this respect has not been challenged at all in the cross-examination. The prosecution has, therefore, clearly established that at the time of marriage of the deceased with appellant Sk. Saibul P. W. I, a rickshaw puller, gave Rs. 5,000/-, a wrist watch and wearing apparel to appellant Sk. Saibul as dowry. He also gave some ornaments as mentioned above to his daughter.

(11) LET us next consider the alleged statements of the deceased regarding torture on her by the accused for more dowry. P. W. I has deposed that when his daughter used to come to his house after her marriage she used to weep and on being asked she used to complain that her husband Sk. Saibul was addicted to liquor and gambling and used tc assault her and torture her. He has further deposed that he used to appease [both his daughter Gundi and his son-in-law Saibul and used to keep his daughter at his son-in-laws house. After Maharam when he took his daughter to the house of his son-in-law he also requested the brothers and uncle of Saibul to see that her daughter and son-in-law might live a peaceful life. His testimony is corroborated by P. W. 23 haliman Bibi who has stated in her evidence that her daughter Aiman Bibi gundi used to complain that her husband Saibul was addicted to drinking and gambling and used to assault her and coerce her to bring money from her parents and when she refused to do so he assaulted her. P. W. 15 Dil Moula khan, a co-villager of P. W. I has also stated that he saw the deceased on the day of Maharam in 1396 B. S. and asked her how she was living at her husbands house. She wept and told him that her husband Saibul was addicted to liquor and gambling and wasted money and asked her to bring money from her fathers house and if she did not bring money from her fathers house she was assaulted by her husband. P. W. 16 Sk. Alimuddin, another co-villager of P. W. I has also deposed that he met the deceased on way to her husbands house from her fathers house and on his enquiry she told him that she was assaulted by her husband and that her husband was addicted to liquor and gambling and asked her to bring money from her fathers house and on her failure to do so she was assaulted toy her husband.

(12) MR. Chakraborty, learned Advocate for the appellants has strongly contended that the above statements of the deceased are not relevant and admissible under Section 32 (1) of the Evidence Act on two grounds. Firstly, the statements were not made immediately before the death of the deceased and there was considerable gap between the statements and her death. Secondly, the statements do not relate to the cause of her death.

(13) THE Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of clause (i) of section 32 viz. , "the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question" is not to be found in the English law. The leading decision on this question which has been followed by a long catena of authorities of almost all the courts including the Supreme Court is the case of Pakala narayana Swami v. Emperor, AIR 1939 PC 47 [LQ/PC/1939/1] , where Lord Atkin has laid down the following tests:

"it has been suggested that me statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" car only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transactions, general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. . . . . "circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence. . . . . . It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant. "

(14) IN Shared Birdhichand Sarda vs. State of Maharashtra, AIR 1984 supreme Court 1622, Fazal Ali, J. on a review of the authorities, laid down the following proposition as:

(1) Sec. 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide, or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut- and- dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of Clause (1) of Section 32 Is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

(2)(15) SABYASACHI Mukherjee, J. while concurring with the view of Fazal Ali, J. sounded a note of caution. He has observed as follows:

(3)

(4)"i would, however, like to state that this approach should be taken with a great deal of caution and care and though I respectfully agree with fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut- and- dried formula of universal application, it must be emphasized that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three of four months, the statement would be admissible under Section 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case such statements may be admissible. "

(5)

(6)(16) NOW, turning to the facts of the present case, the deceased died within less than 6 months from the date of her marriage. The statements reveal a tell-tale story of systematic ill-treatment, harassment and torture including physical assault pressurizing the deceased to bring more dowry from her parents by her husband who was addicted to drinking and gambling and, therefore, required more money. It was a continuous drams of ill-treatment, torture and assault culminating in death of the deceased. The last statement was made only 8/9 days before the death of the deceased. The distance of time alone in such a case would not make the statement irrelevant. We are fully conscious of the caution sounded by Sabyasachi Mukherjee, J. as he then was, that whenever the test of proximity land extended beyond the immediate it should be the exception and must be done with very great caution and care and that in very exceptional circumstances like the circumstances of the case referred to above such statements may be admissible. As pointed out before, there are exceptional circumstances in this case as those of the case referred to above. These statements exhibit circumstances leading to the death. The circumstances revealed in the statements not only prove cruelty within the meaning of Section 498a, Indian Penal Code and dowry death within the meaning of section 304b and establish the charge under S. 304b I. P. C. with the aid of presumption under Section 113b of the Evidence Act but also reveal a possible motive for murder. The statements reveal that appellant Sk. Saibul, a rickshaw puller and of modest means, was addicted to the vices of drinking and gambling and naturally he was in constant need of more than he could possibly earn. He used to torture, coerce and even physically assault the deceased for bringing more money from her parents and he used to threaten her with more severe assaults if she failed to bring money from her parents. To him his wife was no more than a money-procuring machine. He could not squeeze more money even after repeated tortures and assaults of the poor victim who, therefore, out-lived her utility to him. This could serve as a probable motive for murder. Statements relevant to or furnishing an immediate motive may be admissible as being a part of the transaction of the death. We are, therefore, unable to accept the contention of Mr. Chakraborty and we have no hesitation in holding that the above statements of the deceased are admissible under Section 32 (1)of the Indian Evidence Act.

(17) THE next circumstance on which the prosecution has sought to rely is that the deceased was last seen alive in the company of her husband Saibul in his house on the fateful night between 21. 8. 89 and 22. 8. 89. P. W. 2 Mufaden bibi, aunt of appellant Saibul has deposed that Gundi used to reside with saibul in the same house before her death. She saw Gundi for the last time in the month of Bhadra one year back. On 5th Bhadra in the morning Saibul told him that his wife Gundi was not in the house from the last night. Her specific evidence is that on the night on which Gundi was reported to be missing she was in the company of Saibul in the same house.

(18) IN answer to a question put by the Court she has also stated that Saibul used to reside in his house with his wife and on the night on which his wife was reported to be missing, there was none else in the house with Saibul and Aiman gundi. Mr. Chakraborty seeks to assail the testimony of P. W. 2 in this regard on the ground that she is a hostile witness and her testimony has not been corroborated by any other relation of Saibul. We are unable to accept this contention. It is now well-settled that the evidence of a hostile witness is not liable to be discarded in its entirety and part of the testimony may be accepted if it is consistent with other evidence and facts and circumstances of the case. P. W. 2 lives in the same homestead though in a separate house. She is, therefore, a competent witness. This part of her testimony was not challenged either by the prosecution or by the defence. She was declared hostile and was allowed to be cross-examined only on the question of the alleged extra judicial confession made by Saibul to her in the morning of 5th Bhadra. This part of her testimony was not even challenged in the cross-examination. There is. therefore, no good reason for rejecting the testimony of P. W. 2. We have, therefore, no hesitation in holding that the prosecution has successfully proved the important circumstance that on the fateful night the deceased and her husband Saibul were found together in the house of Saibul and there was no other person in that house.

(19) THERE is overwhelming evidence that the dead body of the deceased was recovered in the morning of 22. 8. 89 from Kartic Khali Khal which is at a distance of about 3/4 miles from the house of Saibul. The evidence of P. W. 17 jhuru Paria shows that he was catching fish with net in the Khal. When he drew the net in the morning of 22. 8. 89 he found the dead body of a unknown woman caught in the net. After this startling discovery he rushed to the village and informed the villagers including P. W. 18 Chowkidar Chunilal Mondal about the same. Chunilal came to the spot and on his direction P. W. 17 removed the dead body on the bank of the Khal. P. W. 18 then informed P. W. 26 S. I. Guiram Ghosh who started Khejuri P. S. U. D case No. 34/89 and visited the place with S. I. Sudhir Ghosh (P. W. 19) P. W. 26 found the dead body of a Muslim female aged about 20/21 years on the northern bank of Khal when he reached the place at 11 A. M. Many persons assembled there. At that time p. M. 23 Haliman Bibi arrived at the spot and the identified the dead body to be that of her daughter Aiman Gundi. P. w. 26 held inquest on the dead body in presence of witnesses including P. w. 20 Puma Chandra Mondal and seized the wearing apparel of the deceased viz. blouse and says and glass bangles under a seizure list (Ext. 13/1). The medical evidence shows that death of the deceased was due to throttling which was ante mortem and homicidal in nature and that the death of the deceased took place between 1-50 a. m. and 4 a. m. on 22. 8. 89.

(20) THE next piece of evidence is the recovery of broken glass bangles and imitation ear ring and a sari belonging to the deceased in pursuance of the statement of accused Saibul and at his own Instance. P. W. 26 arrested Saibul at 4-30 p. m. on 24. 8. 89. After arrest he recorded the statement of Saibul. He proves the statement of Saibul which runs as follows. "bouer paraner sariti Subhas of Khaler ahare ekti garter maddhy Kadai pute rakhe" (a sari which my wife was wearing was concealed by Subhas in a pit under mud near the side of that Khal). The part of the statement that Subhas concealed the sari is not admissible as substantive evidence against co-accused Subhas. The evidence of P. W. 26 shows that after making the statement Saibul led him near the bank of Kartic khal and showed him a bush and picked up a broken imitation ear ring, a broken glass bangle, and broken pieces of a bottle and a cork which he seized under a seizure list in presence of witnesses. The seizure list is Ext. 6/2. The broken pieces of bangle are material Ext. 1, The imitation ear ring is Ext. Vi. P. W. 6 Sankar Mondal and P. W. 7 Santosh Kumar Das corroborate P. W. 26, broken pieces of glass bangle (Material Ext. I) and the imitation ear ring (Ext, vi) have been identified by P. W. 23 to be those of her deceased daughter. P. W. 23 has also stated that these were habitually worn by his daughter. Her evidence of identification has not been challenged in the cross-examination. P. W. I has also identified the same as belonging to his daughter.

(21) THE evidence of P. W. 26 further stow that thereafter Saibul led him to the Khal at some distance and brought out a sari (material Ext. II) from underneath mud which was seized in presence of witnesses under a seizure list (Ext. 5/2). Both P. Ws. 6 and 7, witnesses to the seizure, corroborate P. W. 26. The sari (material Ext. II) was identified by P. W. 23 as that of her deceased daughter. The identification was not challenged in the cross-examination. Mr. Chakraborty also does not challenge the same. It would appear from the above that the sari was recovered by accused Saibul from a hidden place which was not visible to outsiders.

(22) THE imitation ear ring and glass bangle of the deceased were also recovered by Saibul from inside a bush not visible from outside. The evidence of P. Ws. 17, 18 and 26 shows that the sari was not found on the dead body after recovery from the Khal. Only a blouse and a saya were found on the dead body. Clearly the sari which the deceased was wearing at the time of the occurrence (material Ext. II) was removed after committing murder and was hidden at some distance in a pit under mud and the imitation ear ring and the glass bangles were kept hidden in a bush on the bank of the Khal. The fact that appellant Saibul led the police party and himself recovered these articles from the hidden places points to his guilty knowledge.

(23) LET us next consider the conduct of accused Saibul. P. W. 23 did not find him in his house in the morning of 22. 8. 89 He was also not found anywhere near the Khal even after discovery of the dead body the deceased. P. W. I also could not find him when he visited his house on 23. 8. 89. The evidence of P. W. 26 shows that immediately after taking up investigation on 23. 8. 89 he visited the house of Sk. Saibul but could not find him there and he searched for him in the village but could not trace him out. On 24. 8. 89 at about mid-night he also raided the house of Saibul but could not find him. It appears from the evidence of P. W. 13 Lutfar Rahaman Khan that the police sought for help of the villagers for apprehending Sk. Saibul. It is clearly established that saibul made himself scarce shortly after the occurrence. The evidence of P. W. 13 in the ferry ghat which is a bit away from Kanta Khali ferry ghat to its north where from there is a ferry service to another district, namely 24-Parganas and brought him near the police station where P. W. 26 arrested him at. 4. 30 F M. on 24. 8. 89. The accused did not search for his wife who was found missing on the night between 21. 8. 89 and 22. 8. 89. He did not report the matter to any of the neighbours nor did he lodge any missing diary in the police station. He was absconding and was apprehend by the villagers when he was trying to flee away to another district.

(24) THE theory of Aiman Bibis leaving her husbands house of her own accord at that unearthly hour of night without knowledge of her husband is falsified by the circumstances discussed above and also by the evidence of P. W. 2 which shows that the deceased was of good character and her behaviour was good. She was respectful to elders and had a great reverence for her husband. The question of leaving her husband with a paramour does not arise. The medical evidence shows that rape was mot committed on her she was then in her menstrual cycle. Nor the circumstances of the case show that the motive of murder was merely gain.

(25) FROM the above it would be clear that the prosecution has firmly established the following circumstances against appellant Saibul:

(1) Saibul was addicted to drinking and gambling and in order to procure, more money for his vices, he used to torture and coerce the deceased and even assault her for bringing more dowry in the shape of money from her parents and when in spite of systematic tortures, coercion and assaults he could not achieve his object, the deceased lost all her utility to him. This frustration in getting more money serves ,as probable motive for the crime. (2) On the fateful night the deceased was last seen together with appellant Saibul in his house and there was no other person present in that house. (3) According to the medical evidence the deceased was murdered by throttling and the death took place between 1. 40 a. m. and 4 a. m. 22. 8. 89. and the dead body was recovered from the Khal in the morning of 22. 8. 89. (4) Appellant Saibul himself led the police party in pursuance of his statement and recovered imitation ear ring and glass bangle belonging to the deceased hidden in a bush on the bank of the Khal and the wearing sari of the deceased from a hidden place by the side: of the Khal. (5) From the morning of 22. 8. 89 presumably after discovery of the dead body appellant Saibul made himself scarce. He did not lodge" any missing report with the police station nor did he inform any neighbour and search for his missing wife. He did not try to ascertain the whereabouts of his wife. He was not even found any where near the place of the discovery of the dead body. On the other hand, he was absconding soon after occurrence and was arrested by villagers when he was trying to flee away to a neighboring district. This unnatural conduct on the part of the husband is also an incriminating circumstance not consistent with his innocence.

(26) MR. Chakraborty has contended that the above circumstances do not complete the chain of events and do not lead to the inevitable conclusion of the guilt of accused Saibul. According to him the circumstances at least raise a high degree of suspicion but are not clinching enough for conviction of appellant Saibul under Section 302, Indian Penal Code. We have given anxious/consideration to the submission made by Mr. Chakraborty but we are unable to persuade ourselves to accept the same. We are of the opinion that the circumstances established by the prosecution together form a complete chain of events and irresistibly lead to the conclusion of the guilt of appellant sk. Saibul. They are consistent only with the hypothesis of the guilt of Saibul and inconsistent with any reasonable hypothesis consistent with his innocence. In our opinion, the circumstances taken together leave no doubt whatever that accused Saibul committed murder of his wife and threw the dead body in the to Khal to remove the evidence of murder in order to screen himself from punishment.

(27) AS regards appellant Subhas Mandal, the only circumstance that has been sought to be proved by the prosecution is recovery of gold nose-pin and silver double chain belonging to the deceased from possession of Subhas mandal at his instance. The evidence of P. W. 26 shows that after recovery of sari and imitation ear ring etc. belonging to the: deceased appellant Saibul led the police party and witnesses to the house of appellant Subhas Mandal where p. W. 26 arrested him and brought him to police station and recorded his statement. On 28. 8. 89 on his further interrogation accused Subhas Mandal made the following statement :-"ami, Saibul ebang Jiad tin jane alochana kore ukta har o nakchabiti amar kache rekhe Chilam. Ami setike ektijaigay punte rekhechi. Amake sange nea gele ami bar kere dite parba. " (after consultation among the three-myself, saibul and Jiad - I kept the said necklace and nose-pin with me, I have concealed the same in a place by digging earth. I can bring them out if I am led to that place). The further evidence of P. W. 26 is that in pursuance of the said statement appellant Subhas led tee police party to his house and brought out the said articles wrapped in a paper from his house and P. W. 26 seized the same under a seizure list prepared by him in presence of witnesses. Ext, 8/ 2 is the seizure list. The silver chain is Ext. IV and gold nose-pin is Ext, V The seizure witnesses P. W. 13 Lutfar Rahaman and P. W. 14 Prabhat Patra have not supported the actual seizure of the said articles in their presence. Both of them, however, have been declared hostile. The witnesses, however, admit their signatures in the seizure list. There is no reason to disbelieve the testimony of P. W. 26. The factum of seizure of the silver neck chain and the gold nose-pin from the possession of appellant Subhas Mandal at his instance in pursuance of his statement is not disputed before us. It may be pointed out here that the first part of the statement "after consultation among myself, saibul and Jiad is not admissible under Section 27 of the Evidence Act inasmuch as it has got nothing to do with the discovery. Only that part of the statement of the accused in police custody which directly leads to discovery is admissible under Section 27 of the Evidence Act. The ornaments recovered from the possession of appellant Srubhas Mandal 6 days after the occurrence have been identified by P. W. 23 as those of the deceased. She has stated that these ornaments were habitually worn by the deceased. The identification of the ornaments has not been challenged in the cross-examination nor it is disputed before us. Appellant Subhas Mandal has not offered any explanation for the possession of the same.

(28) THE question is whether recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charge of murder as well. Where murder and robbery are proved to have been integral parts of a certain transaction, the presumption that can be drawn from the recent and unexplained possession of the stolen property may, consistent with all the facts proved in the case, be that the person to whom such possession was traced not only committed the theft but also committed the murder. In Baiju. vs. State of Madhya Pradesh, AIR 1978 SC 522 [LQ/SC/1978/17] the Supreme Court has held that where the commission of the murder and robbery formed part of one transaction, the recent and unexplained possession of the stolen property by the accused appellant justified the presumption that it was he and no one else, who had committed the murder and the robbery. The stolen property was recovered from the house of the appellant at his instance within a weeks time from the date of commission of the offence The appellant was given an opportunity to explain his possession but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of section 14 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The nature of the stolen article, the manner of acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. In Sundarlal vs. The State of Madhyapradesh, AIR 1954 SC 28 [LQ/SC/1952/71] the Supreme Court has similarly held that as the ornaments were established to be the ornaments worn by the deceased and accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed, the circumstantial evidence was sufficient to hold the accused responsible for murder of the accused. In Wasim Khan Vs. The State of Uttar Pradesh, AIR 1956 SC 400 [LQ/SC/1956/24] the appellant along with two others were tried for the offence of murder and robbery. It was established that the deceased r traveled with his goods with the appellant on his bullock cart along with two other persons who got down in the middle and never reached his destination but was found murdered in the way the next morning. The appellant and the deceased were alone in the cart after the two persons had got off the cart at the Sugar Mill gate. Thereafter, the deceased was never seen alive by any one. The appellant was found in possession of the deceaseds goods 3 days afterwards. The appellant made no effort to trace the whereabouts of the deceased. There was no explanation for his possession of a big blood-stained knife, the probable weapon of offence. There was no explanation for possession of stolen articles belonging to the murdered man. It was held that the appellant was rightly convicted of offences of both murder and robbery. In the instant case, the murder of the deceased by throttling, throwing away her dead body in the Khal and removal of ornaments from her body must have been integral parts of one transaction. But in our opinion, in the facts and circumstances of the case, the presumption that appellant Subhas Mandal committed murder as well from the mere recovery of the stolen articles belonging to the deceased from his possession would not be justified. In Sundarlals case (supra) the accused came into possession of the stolen ornaments belonging to the deceased on the very same day on which the murder was committed. But in the instant case the stolen articles were found in the possession of appellant Subhas Mondal 6 days after the occurrence. During this intervening period of 6 days change of hands cannot be absolutely ruled out. Moreover, in the case referred to above both the accused and the deceased were seen together at about 2 p. m. shortly before the murder and immediately after the murder the accused went to one gold, smith with the gold half Mohar and the silver churls belonging to the deceased and offered to sell them to him who did not purchase the half gold Mohar but accepted the pledge of the silver churis. The accused went next morning to another goldsmith and sold to him the half gold Mohar which was melted into a gold bar. But In the instant case there was no other circumstance except the recovery of stolen articles from the unexplained possession of appellant Subhas Mondal - that too 6 days. after the occurrence - such as the deceased and the accused being seen together shortly before the occurrence. In the case of Baiju (supra) there were other circumstances apart from the recent and unexplained possession of stolen articles such as repeated visits of the accused to the house of the deceased, his promise to beget a child to the family by sorcery, his winning their confidence to the extent of persuading them to do whatever he liked, his ruse to get rid of Smt. Lakhpatiya by sending her to her parents house at Narainput after leaving her husband and her ornaments behind on promise of meeting her there on january 21, 1975, his failure to fulfil that promise, the death of Smt. Lakhpatiyas husband Ramdayal and other wife Smt. Fulakanwar at the "nala" where the appellant used to take them and Smt. Lakhapatya on the pretext of practicing sorcery, the death of Ramdayals mother Smt. Bhagwanti and his nephew Rambakas in the house the same night, the ransacking of the house and the commission of theft of several articles of Ramdayal and the recovery of those articles either from the house of appellant or at his instance. In Wasim. Khans case (Supra) there were a number of other incriminating circumstances already referred to above apart from the recent and unexplained possession of stolen articles. Considering the gap between the date of occurrence and the date of recovery and in the absence of any other circumstance we would not be justified in drawing the presumption that appellant Subhas mondal committed murder as well from the mere fact of recent and unexplained possession of the stolen ornaments of the deceased. He may, however, be safely convicted under Section 411, Indian Penal Code with which he has also. been charged.

(29) ALTHOUGH appellant Saibul was charged under Section 302, Indian Penal code and Section 201, Indian Penal Code read with Section 34, Indian Penal code along with two other accused persons and Sk. Jiad has been acquitted by the lower Court and Subhas Mondal is liable to be acquitted, there is no difficulty in convicting him under Sections 302 and 201 simplicitor inasmuch as the prosecution has successfully proved that appellant Saibul committed the murder of the deceased and threw the dead body in the canal thereby causing the evidence of murder to disappear with the intention of screening himself from legal punishment.

(30) THIS bring us to the question of sentence. According to the changed legislative policy which is patent on the fact of Section 354 (3) of the new criminal Procedure Code, 1973, the normal punishment for murder is imprisonment for life and death penalty is an exception to be resorted to for special reasons to be stated. In Bachan Singhs case AIR 1980 SC 898 [LQ/SC/1980/256] : 1980 cr. L. J. 636 the Supreme Court has observed that the present legislative policy discernible from Section 235 (2) read with Section 354 (3) is that is fixing the degree of punishment or making choice of sentence for offences, including one under Section 302, Indian Penal Code, the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. The Supreme Court formulated the following board guidelines :-

(1) for making the choice of punishment or for ascertaining the existence or absence of "special reasons", the Court must pay due regard both to the crime and the criminal (2) The mitigating factors in the areas of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weight age and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (3) The extreme penalty of death need not be inflicted except in grievous cases of extreme depravation. All murders are cruel but such cruelty may vary in its degree of culpability and it is only when the culpability assures the proportion of extreme depravity that "special reason" can legitimately be said to exist. (4) 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 the laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

30. In Machhi Singh v. State of Punjab, AIR 1983 SC 957 [LQ/SC/1983/169] the Supreme Court has affirmed the principles laid down in Bachan Singhs case. In Sher Singh v. State of Punjab, AIR 1983 SC 465 [LQ/SC/1983/86] it has been observed by the Supreme Court that death sentence is permissible within the constraints of the rule in Bachan singhs case. The rule of rarest of rare cases as laid down in Bachin Singhs case was followed in Earabhadrappa. v. State of Karnataka, AIR 1983 SC 446 [LQ/SC/1983/82] and in Javed Ahmeds case, AIR 1983 SC 594 [LQ/SC/1983/117] .

(31) THE present case, in our opinion, does not fall within the category of the rarest of rare cases. The reasons given by the learned Sessions Judge for awarding the extreme penalty of death are that it is a deliberate and diabolic murder of a young house-wife by the husband by throttling being frustrated in procuring money for his vices even after systematic torture. These are not extra-ordinary circumstances betraying extreme depravity so as to bring the case within the category of the rarest of name cases. All murders are cruel and gruesome but such cruelty may vary in its degree of culpability and its is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. Murder by throttling does not betray extreme depravity. Appellant Saibul is not a hardened criminal and there is no likelihood of repetition of the crime. Considering all the facts and circumstances of the case we are of the opinion that the alternative option for life imprisonment which is the normal sentence is not unquestionably foreclosed in this case by virtue of extra-ordinary and compelling circumstances of extreme culpability and depravity shocking to the judicial conscience and conscience of the society. We, therefore, held that the death sentence must be commuted to one for imprisonment of life.

(32) SINCE we are commuting the death sentence to one for imprisonment for life we are inclined to pass separate sentence for conviction of appellant Saibul under Section 498a, 304b and 201, Indian Penal Code. 32 In the result, the Death Reference is rejected and the appeal is allowed in part. The conviction and sentence of appellant Subhas Mondal under section 302/34 and S. 201/34, Indian Penal code are set aside. He is instead convicted under Section 411, Indian Penal Code and is sentenced to rigorous imprisonment for 3 years and fine of Rs. 1,000/ -, in default, to further rigorous imprisonment for 6 month the conviction of appellant no. 1 Sk. Saibul under section 302 and Section 201/34 Indian Penal Code is altered to one under section 302 and Section, 201 Indian Penal Code simplicitor respectively. Death Sentence for his conviction under Section 302, Indian Penal Code is commuted to one for imprisonment for life. His conviction under Section 498a and 304b, Indian Penal Code is upheld. For his conviction under Section 304b, Indian Penal Code he is sentenced to rigorous imprisonment for 10 (ten)years For his conviction under Section 201, Indian Penal code he is sentenced to rigorous imprisonment for 4 (four) years. He is sentenced to rigorous imprisonment for 3 years under Section 498a, Indian Penal Code. All the sentences shall run concurrently. Death reference rejected. Appeal allowed in part.