Sanku Roy vs The State Of Assam
2021 Latest Caselaw 2212 Gua

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GAHC010270492018




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/104/2018

             SANKU ROY
             HAILAKANDI, ASSAM.



             VERSUS

             THE STATE OF ASSAM
             REP. BY PP, ASSAM.



Advocate for the Petitioner    : MS. SUSMITA KANUNGOE, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM




                                        BEFORE
                           HONOURABLE MR. JUSTICE SUMAN SHYAM
                           HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         JUDGMENT

Date : 15-09-2021

(Robin Phukan, J.)

This jail appeal is preferred by accused/appellant - Shri Sanku Roy from District Jail, Hailakandi challenging the judgment and order, dated 10.08.2018, passed by the ld. Sessions Judge, Hailakandi in Sessions (T-1) Case No.14/2018, under section 302 of the Indian Penal Code, corresponding to Hailakandi Police Station Case No. 606/2017.

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02. It is to be mentioned here that by the impugned judgment and order, the accused/appellant has been convicted u/s 302 IPC and sentenced to suffer 'imprisonment till the end of his natural life' and also to pay a fine of Rs.5,000/-(Rupees five thousand only), in default to suffer further imprisonment for another 2(two) months.

03. The factual background, under which Hailakandi Police Station Case No. 606/2017, u/s 302 IPC came to be registered, is adumbrated herein below:-

"The accused/appellant was staying in a rented house belonging to one Dhiraj Bhowmik, at Ward No.5 of Hailakandi Town, along with his wife- Mita Roy and son-Sahil Roy, aged about 8(eight) years. On the intervening night of 29.09.2017, while Durga Puja was being celebrated in that locality, the accused killed his wife and his son, by means of an iron rod. And, thereafter, keeping the rented house under lock and key, he surrendered at Hailakandi Police Station, and reported the incident to police."

04. Thereafter, one Mannalal Sarkar, brother of deceased, Mita Roy lodged one ejahar with the O.C., Hailakandi Police on 29.09.2017, upon which the O.C. Hailakandi Police registered above noted case, u/s 302 IPC and endorsed S.I. Sahabuddin Barbhuiya to investigate the case. The investigation culminated in submission of charge sheet against the accused Sanku Roy, in the Court, under section 302 of the Indian Penal Code.

05. The ld. Sessions Judge, Hailakandi, after hearing both sides, framed charge against the accused/appellant u/s 302 IPC, and on being read and explained over, the accused/appellant pleaded not guilty to the same and claimed to be tried. The prosecution side then examined as many as 11 witnesses, to bring home the charge against the accused. After closing the prosecution evidence, the ld. Sessions Judge has examined the accused u/s 313 Cr.P.C and, thereafter, hearing arguments of both sides, convicted him u/s 302 IPC and sentenced him as aforesaid.

06. Being highly aggrieved and dissatisfied with the aforesaid judgment and order, the accused/appellant preferred this appeal from Jail.

07. We have heard Ms. Susmita Kanungoe, the ld. Amicus Curiae appointed by this Court, Page No.# 3/15

and also heard Ms. Barnali Bhuyan, ld. Addl. P.P., Assam.

08. The ld. Amicus Curiae, taking us through the evidence on the record, submitted that there is no eye witness to the occurrence and the entire prosecution case rests upon circumstantial evidence. Ms. Kanungoe in her usual fairness further submitted that the circumstances, so brought on record by the prosecution side through its witnesses; shows that the accused is responsible for death of his wife and son. It is further submitted that though some contradictions are here and there in the version of the prosecution witnesses, the same are not on material point. It is further submitted that the relationship between the accused appellant and his deceased wife appears to be not very cordial and, perhaps, out of anger, he had killed his wife, but, it could be ascertained as to why he had killed his little son, from the evidence on the record. Alternately, the ld. Amicus Curiae also submitted that as there was quarrel between the accused and his deceased wife, and as such, this case would come under the exception of section 300 Indian Penal Code and therefore, it is contended to modify the sentence, so handed down, by the ld. Sessions Judge, Hailakandi.

09. Per contra, the ld. Addl. P.P. has vehemently opposed the submission of the ld. Amicus Curiae and submitted that the injuries sustained by both the deceased were on the vital part of their body, and the same were caused by an iron rod which goes to shows that he had both the intention and knowledge to eliminate the deceased, and as such, this is a clear case of 302 IPC. The ld. Addl. P.P. has further submitted that though there is no eye witness to the occurrence, and though the I.O. has failed to get the statement of the accused recorded u/s 27 Evidence Act, while recovering the weapon of offence and also failed to get the same examined at Forensic Science Laboratory, yet, the circumstances, so established by the prosecution side, goes a long way to show that the accused is the author of the crime. Referring two case laws (i) Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681 and (ii) Kalu Alias Laxminarayan Vs. State of Madhya Pradesh, reported in (2019) 10 SCC 211, the ld. Addl. P.P. has submitted that while the incriminating circumstances, relating to recovery of dead bodies of his wife and son from the rented house, where he was staying with them, were put to the accused/appellant in his examination u/s 313 Cr.P.C, he has failed to offer any explanation, let alone a plausible one, Page No.# 4/15

as to how his wife and son died in that fateful night in the rented house, and this failure also provides an additional link to the chain of circumstances against him. As the charge against the accused/appellant stands proved, the ld. Addl. P.P. has contended to dismiss the appeal.

10. Having heard the submissions of the ld. Advocates we have gone through the record of the ld. Court below carefully. It appears from the record that the occurrence took place on the intervening night of 29.09.2017, in the rented house of Dhiraj Bhowmik (P.W.3), situated at Ward No. 5 of Hailakandi Town. There is no dispute about the same. But, none of the prosecution witnesses could depose about the time of actual occurrence.

11. Now, let it be seen whether this is a case of suicidal, accidental or homicidal in nature. First, let us discuss the evidence of the Doctor. It is on record that to conduct the post mortem examination of the deceased a team of Doctors' comprising of Dr. Mujibur Rahman Mazarbhuiya, Dr. N.H. Mazarbhuiya, Dr. Subendu Chakrobarty and Dr. Abul Hussain Barbhuiya of S.K. Roy Civil Hospital, Hailakandi was constituted. They jointly conducted post mortem on the dead body of Mita Roy on 29.09.2017. The prosecution side has examined them as P.W.7, 8, 9 and 10. Their evidence reveals that during post mortem examination of Mita Roy, they found the following:-

"A healthy female, aged 35 years, height is about 150 cm, rigor mortis present in all limbs.

(i) One lacerated injury of about 10cm x 5cm over the right peri occipital region, oblique in direction with communiated fracture of underlying bone of length about 8 cm just below the injury. Collapse of brain matter was there through the fracture bone. Multiple areas of sub arachnoid haemorrhage with the evidence of mild line sift and pressure affect on the brain structure.

(ii) Abrasion of size 5cm x 4cm at ulnar surface of right arm. There is presence of massive haemorrhage and blood clots in and around the region of head injury.

Based on the above findings they opined that - death of Mita Roy was due to grievous head injuries, irresistible hemorrhage and cardio respiratory failure due to neurogenic shock. They Page No.# 5/15

also opined that the injuries were ante mortem in nature. From the size, shape and appearance of different injuries on the body, they further opined that the same were caused by heavy, blunt and forceful object. We find that Exhibit-6, the post mortem report is also consistent with their version.

12. During post mortem examination of Sahil Roy-aged 8 years, they found the following:-

"A healthy child of above 8 years old, of height 121 cm, the colour of the body is pale, rigor mortis present in all the limbs.

(i) One lacerated injury of size 10cm x 3cm on the left peri occipital region left side above 6 cm the left ear. There were communiated fracture of the underlying bone of size 7cm x 5cm and brain matter was coming out through the injured area. There is sub-dural and sub arachnoid hemorrhage in and around the fracture side.

(ii) There is massive hemorrhage in and around the fracture side, blood clot is also present. No foul smell was found in his mouth and nose. Based on the above findings they opined that - death of Sahil Roy was due to grievous head injuries, irresistible hemorrhage and cardio respiratory failure due to neurogenic shock. They also opined that the injuries were ante mortem in nature. From the size, shape and appearance of different injuries on the body, they further opined that the same were caused by heavy, blunt and forceful object. We find that Exhibit-7, the post mortem report is also consistent with the versions of P.W.7, 8, 9 and 10.

13. It is to be mentioned here that the defence side has not disputed the findings of the Doctors' in respect of cause of death of the deceased persons. It is, however, a fact that they have not mentioned the time of incident in the post mortem reports. Thus, we find from the medical evidence that the death of both the deceased were homicidal in nature and the injuries sustained by them were caused by heavy blunt and forceful object.

14. Now, let it be seen as to who caused the injuries sustained by deceased Mita Roy and Sahil Roy. The prosecution side has examined the complainant, Mannalal Sarkar, as P.W.1. He is the brother of the deceased Mita Roy. His evidence reveals that about 21 years back his Page No.# 6/15

sister got married with the accused and they were blessed with two children, who are now 15 years and 8 years old. His evidence also reveals that on 29.09.2017, in the morning, two persons came to his house and reported to his mother that one untoward incident had happened in the rented house of his sister Mita Roy at Hailakandi Market. The owner of the rented house also rang up his wife, and reported about the untoward incident that happened in the house of his sister. Then he and his wife rushed to the house of his sister and found his sister Mita Roy and nephew Sahil Roy lying dead on their bed in injured condition. He also found police personnel there and police seized one blood stained iron rod from the room in his presence, vide seizure list, Ext. 1. He also came to know at the place of occurrence that the accused surrendered at the police station and police told him that the accused confessed having killed his sister and nephew. Then police took photographs, Ext.2 and Ext.3 of the dead bodies of his sister and nephew. Thereafter he lodged an ejahar, Ext.4 with the police. His evidence also reveals that the accused used to assault his sister demanding and pressurizing her to bring money from him. His evidence also reveals that Executive Magistrate conducted the inquest on the dead bodies and prepared inquest report, Ext.5, wherein he signed as a witness.

15. The seizure list-Ext.-1, the photographs-Ext.-2 and Ext.-3, are also consistent with the evidence of P.W.-1. The ejahar-Exhibit-4, also lends corroboration to his version. There is also no considerable delay in lodging the First Information Report (FIR) so as to spell inveracity in to his version. Nothing tangible could be elicited in his cross-examination by the defence side and his version remained un-impeached. However, he admitted that neither he nor his deceased sister lodged any case against the accused for the demand of money and torture meted out to her sister. But, this admission caused no dent to his evidence and we find element of truth in the same. As such, his evidence able to inspire our confidence.

16. The evidence of P.W.1 finds corroboration from the evidence of his wife Smti. Sabitri Sarkar(P.W.2). She also dittoed like PW-1. She further deposed that few days before the incident, her husband has given a sum of Rs.5,000/- to the accused for opening a momo shop on demand of the accused. But, the defence side has confirmed through the I.O. (P.W.11) that she had never stated this fact to him. Except this nothing is elicited to discredit Page No.# 7/15

her evidence. The contradiction, so brought on record and proved, also found to be not on material point and as such it has no bearing upon the veracity of her version. Thus, we find no ground to disbelieve the same.

17. PW-3, Dhiraj Bhowmik is the landlord, in whose rented house the accused was living with his wife and son at the material time. His evidence reveals that the accused was residing in his rented house for about 4-5 months. His evidence also reveals that on the relevant night of occurrence, there was Durga Puja in front of his house and there was massive sound of music system. His evidence further reveals that he returned from the puja pandal at about 1:00 am, and went for sleeping. In the next morning he woke up hearing halla and noticed many people there. He also noticed police taking the accused there, who unlocked his room and entered inside along with police and took out one piece of iron rod with blood stain and then the accused confessed having killed his wife and son by means of the said iron rod. Then police seized the iron rod (Material Exhibit-1) preparing seizure list-Exhibit-1. He also noticed the wife and son of the accused lying dead on a bed with head injuries. He also confirmed material Ext.2 and Ext.3, the photographs of the deceased. He is also the witness of inquest held over the dead body of the deceased persons and confirmed the inquest report- Exhibit-5, prepared by the Executive Magistrate. His evidence also reveals that very often he heard quarrel between the accused and his wife.

18. Smti. Nandita Bhowmik -P.W. 5, and Shri Himangshu Bhowmik-P.W.4 are respectively wife and brother of P.W.3. Close on the heel of P.W.3, P.W.5 has also testified that on 29.09.2017 hearing hulla, when she woke up from the bed, she noticed gathering of many people in her house and in the meantime, police took the accused -Shanku Roy, to his room but, she did not enter into the same. She has also noticed the accused coming out of his room with one iron rod and she came to know that the accused killed his wife and son both with the said iron rod. She also noticed head injuries on the persons of both the deceased, while dead bodies were taken out by police. Her evidence further reveals that the accused was residing in their rented house for last 4/5 months and they often heard quarrel between the accused and wife. She also heard the accused telling the police that he killed his wife and son by means of the iron rod.

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19. P.W.4 also dittoed like PW-3 while deposing before the court. His evidence also lends corroboration to the version of PW-3. He is also the witness of seizure of the iron rod and confirmed the seizure list- Ext.1, and the photographs of the deceased- Ext. 2 & Ext. 3, and the iron rod Material Ext.-1. Further, he testified that very often he used to hear quarrel between the accused and his wife but, again they got united.

20. Nothing tangible could be elicited in the cross-examination of these three witnesses so as to impeach the veracity of their version. There is ample corroboration in their version and also they corroborated the version of P.W.1 and 2 and consequently they have been able to inspire our confidence.

21. The prosecution side has examined one Ajit Kumar Paul as PW-6, who had rushed to the place of occurrence after hearing about the incident at the Hailakandi market on 29.09.2017, at about 8.30 am, and found the dead bodies of Mita Roy and her son Sahil Roy lying on the bed with head injuries as well as injuries on other parts of their bodies. He also noticed one iron rod lying near the dead bodies with blood stain. His evidence also reveals that the accused Sanku Roy confessed before the police that he had killed his wife and son. The defence side failed to elicit anything tangible in cross-examination of this witness also.

22. PW-11, Sahab Uddin Barbhuiya, is the I.O., who had laid the charge sheet, Ext.11, against the accused after investigation. His evidence reveals that on 29.09.2017, on receipt of the FIR, the O.C. Hailakandi P.S. endorsed him to investigate the case. Then he examined the complainant at the P.S. and in the meantime, the accused- Sanku Roy appeared and confessed before him that he has killed his wife and son. Then, along with the accused and the O.C., Surojit Choudhury and other police personnel and Executive Magistrate, Tridip Roy, he went to the place of occurrence i.e., the rented house of the accused at Ward No. 5 of Hailakandi Town and found the wife and son of the accused lying dead on a bed, in a pool of blood and then he took photographs, Ext. 2 & Ext. 3, of the dead bodies. His evidence also reveals that when asked, the accused took out a piece of iron rod stained with blood from beneath the bed and then he seized the same in presence of witnesses, vide seizure list- Ext.1. He confirmed Material Ext.-1, the piece of iron rod, in the court. He also prepared Page No.# 9/15

rough sketch map - Ext. 10, of the place of occurrence, and also examined the witnesses and, thereafter, got the inquest upon the dead bodies conducted by the Executive Magistrate and collected the report. He confirmed the inquest report -Ext. 8 and, thereafter, he sent the dead bodies for autopsy at S.K. Roy Civil Hospital, Hailakandi. Thereafter, he examined the witnesses under Section 161 Cr.P.C. and arrested the accused and forwarded him to the court and, on completion of investigation, he laid charge sheet in the court against the accused to stand trial under section 302 IPC. Admittedly, he did not examine the persons, whose houses were shown in the sketch map. Except this nothing has been elicited in his cross-examination to discredit his version.

23. Thus, from the evidence of the prosecution witnesses, as discussed above, we find that there is no direct evidence against the accused. But, numbers of incriminating circumstances have emerged from their evidence, which reveals complicity of the accused with the charge. We find ample corroboration in the versions of the prosecution witnesses in respect of the incriminating circumstances. Having appreciated, analyzed and assessed their evidence with the yardstick of probabilities, its intrinsic worth and the animus of witnesses we find the same trustworthy and, accordingly, we are inclined to accept the same.

24. The incriminating circumstances, which the prosecution side has succeeded in establishing against the accused, are recapitulated as under:-

(i) The accused was residing in the rented house of Shri Dhiraj Bhowmik (PW-

3), along with his wife Mita Roy and her son Sahil Roy, for last 4/5 months. Mention to be made here that this fact is admitted by the accused in his examination u/s 313 Cr.P.C. also.

(ii) The relationship between the accused and his wife was not very cordial and they used to pickup quarrel very often and also got united.

(iii) The accused used to assault his wife demanding and pressurizing her to bring money from her brother (P.W.-1). From this the motive behind commission of the crime, comes out loud and clear.

(iv) On 29.09.2017, the accused appellant was residing in the rented house of Page No.# 10/15

PW-3., along with his deceased wife and son.

(v) On the relevant night of occurrence, Durga Puja was being celebrated in front of the rented house of P.W.3, and, there was massive sound of music system.

(vi) In the morning, the accused surrendered at the P.S. and confessed before the police that he killed his wife and his son.

(vii) He led the police to the rented house and on opening the door he took out one piece of iron rod which he had used in committing the offence.

(viii) There was blood stain on the said piece of iron rod.

(ix) The dead bodies of his wife and 8(eight) years old son were found lying in a pool of blood in the bed with head injuries.

(x) The rented house was under the lock and key and the same was opened by the accused in presence of prosecution witnesses. This clearly ruled out accessibility of the place of occurrence by any other person, except the accused.

25. It is, however, a fact that the prosecution side has failed to get the iron rod, (Material Exhibit-1), examined at the Forensic Science Laboratory for ascertaining use of the same in committing the offence by the accused. Finger print over the iron rod was also not obtained. But, the medical evidence confirmed use of the blunt, hard and heavy object in committing murder of the deceased persons. Thus, the prosecution version, about use of iron rod (Material Exhibit-1), in commission of the crime stand fortified.

26. It is also apparent that the accused had confessed having committed the offence before the police. But, any confession made before police officer is not admissible in evidence being hit by section 25 of the Evidence Act. It also appears that the weapon of offence and the dead bodies were recovered at the instance of the accused. But, the investigating officer has failed record the statement of the accused leading to discovery of the weapon of offence, and also the dead bodies, so as to attract section 27 of the Evidence Act. But, the post-crime conduct of the accused leading to discovery of weapon of offence and the dead bodies becomes relevant under section 8 of the Evidence Act. Reference in this context can be made to a decision of this court in Mohibur Rehman vs. State of Assam (2001) 3 GLR 535.

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Thus, the post crime conducts of the accused also militate against the accused and it fortified the prosecution version.

27. We also find that all these circumstances, which the prosecution side has successfully established against the accused, form a complete chain to show that the offence has been committed by none other than the accused person.

28. It is apposite to mention here that while dealing with the cases of circumstantial evidence, Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, held following five principles, aptly described as 'Panchasil' must be fulfilled before a case against an accused based on circumstantial evidence-

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be', established.

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) The circumstances should be of a conclusive nature and tendency,

(iv) They should exclude every possible hypothesis except the one to be proved, and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

29. In the case in hand, having tested the incriminating circumstances, that have been established by the prosecution witnesses, on the touch stone of the parameters, so laid down in the case of Sarada Birdhichand (supra), we find that the circumstances here in this case are of conclusive in nature and tendency and they formed a complete chain leaving no Page No.# 12/15

room for any doubt about guilt of the accused. The same are totally inconsistent with his claim of innocence, during trial. No other hypothesis, except the guilt of the accused is possible in the instant case.

30. Further, it appears from the cross-examination of the prosecution witnesses that the accused took the plea of alibi by suggesting to the witnesses that he was at the shop at Gandhighat for the whole night. But, the same was categorically denied by the witnesses. Besides, he made no effort to establish the same by adducing any evidence. The plea, therefore, failed.

31. It is also worth mentioning here that while the incriminating circumstances, as discussed in the foregoing paragraph, were put to the accused/appellant during his examination under Section 313 Cr.P.C, he has failed to offer any explanation, let alone a believable one, regarding the injuries sustained by his wife and son and their consequential death. Failing to account for such an explanation, becomes an additional link in the chain of circumstances to make it complete. Our view gain sustenance from a decision of the Hon'ble Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra (Supra) and also in Kalu Alias Laxminarayan Vs. State of Madhya Pradesh (Supra). In the case of Trimukh Maroti Kirkan(supra) Hon'ble Supreme Court, in paragraph No.15 has held as under:-

"Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case undoubtedly be upon the prosecution but the nature and amount of evidence to be laid but it to establish the charge sheet cannot be of the same degree as required in other case of circumstantial evidence. The burden would be of a comparatively lighter character. In view of the Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simple keeping quiet and offering no explanation on the suppose premises that the burden to establish its case lies entirely upon the prosecution and there is no duty at all an accused appellant to offer any explanation.

It is also held in paragraph 21 that:-

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"In a case based on the circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers and explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

It is also held in paragraph 22 that:-

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of crime."

32. From the foregoing discussion we find that the prosecution side has succeeded in establishing that the death of Mita Roy and Sahil Roy was homicidal in nature, and it is the accused - Shanku Roy, who caused the injuries to the deceased, and is responsible for their homicidal death.

33. Now, turning to the submission of the ld. learned Amicus Curiae that 'instead of 302 IPC, the case would come under Section 304 part-II IPC,' yet, we find from the evidence of P.W.1, 2, 3, 4 and 5, that the relationship between the accused/appellant and his wife was not very cordial. They frequently pickup quarrel and also got united. It appears to be a routine affair, which according to us; cannot amounts to a grave and sudden provocation. There is nothing on the record to show that there was sudden fight and in the heat of passion upon a sudden quarrel and without having taken undue advantage he acted in cruel or unusual manner. The crime was committed within the four walls of the rented house, during night hours, while Durga Puja was being celebrated playing sound system at high volume, outside the rented house. What transpires from these circumstances is that there was element of premeditation to eliminate the deceased. From the position chosen to cause the injuries, i.e. the head, which is a vital part of the body, the weapon used to cause the same, and the time and place Page No.# 14/15

chosen by him for commission of the offence, it becomes crystal clear that the accused had both the knowledge and intention to kill his wife and his teenage son. And as such, the offence would not come under any of the exceptions mentioned in section 300 Indian Penal Code, so as to take it out of the purview of section 302 IPC. In view of above, we find the submission of the ld. Amicus Curie bereft of merit. On the other hand, we find sufficient force in the submission of the ld. Addl. P.P. that this is a clear case u/s 302 IPC. Accordingly, we record our concurrence to the same.

34. From the foregoing discussion and finding, we are of the view that the ld. Sessions Judge, Hailakandi has rightly recorded the finding of guilt of the accused/appellant and convicted him for committing murder of his wife and son. The ld. Court below has discussed all the circumstances, appearing against the accused/appellant during trial and arrived at reasoned finding, which requires no interference of this court. The ld. Court below has heard the accused on the point of sentence and thereafter, sentenced him to suffer 'imprisonment till the end of his natural life' and also to pay a fine of Rs.5,000/-(Rupees five thousand), in default to suffer further imprisonment for another 2(two) months.

35. Indeed the offence herein this case is of brutal and of socially abhorrent nature. There is no doubt about it. But, it is not a rarest of the rare case. The accused has no antecedent of criminal activities. No previous conviction is also proved against him by the prosecution side. Having eliminated his wife and son the accused himself is a victim of circumstance and suffered loss of them. Moreover, he has another surviving child to look after. This aspect also cannot be overlooked while determining the quantum of sentence. Having weighed all the mitigating as well as aggravating circumstances, appearing in his favour and against him, and also keeping in mind the principle of proportionality between prescribing liability according to culpability, we find that the sentence, so handed down by the ld. Court below, appears to be on higher side. And as such, it requires interference of this court. Accordingly, the sentence of 'imprisonment till the end of his natural life', so prescribed by the ld. Court below, stands modified to the 'rigorous imprisonment for life'. In our considered opinion, this would advance the cause of justice.

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36. In the result, conviction of the accused/appellant under section 302 Indian Penal Code stands upheld. But, the sentence of 'imprisonment till end of his natural life' stands modified to 'rigorous imprisonment for life'. The appeal stands allowed to the extent indicated above. The record of the ld. Court below be sent back with a copy of this judgment.

37. Before parting with the record, we acknowledge the service rendered by the ld. Amicus Curie. The High Court legal Services Committee shall pay a sum of Rs. 7500/, being the professional fee, to the ld. Amicus Curie, upon production of a copy of this judgment.

JUDGE

Comparing Assistant