Puthuparambil Pappachan Alias Thomas Vs. State of Kerala - Court Judgment

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- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - pw-17 in his evidence as well as ext. he added that both the lobules were torn, according to him the cut injuries could be caused with a weapon like mo-2. 6. the medical evidence unambiguously would show that the death was homicide and with due regard to the nature and seat of the injuries, particularly injuries 1 and 2, it is clear that the assailant intended to cause death. 9. on the other hand the learned additional director general of prosecution maintained that the evidence of the occurrence witnesses since is effectively corroborated by other evidence that by itself is sufficient to prove the guilt of the accused. 13. learned counsel for the appellant contended that these witnesses being chance witnesses, their evidence is not reliable. statement that could add to the credibility of the witnesses, but as indicated, the omission by itself need not necessarily lead to the conclusion that such a witness is un-reliable. 18. pw-17, the doctor said that the injuries sustained by moly could be caused with a weapon like mo-2. mo-2 also had blood stained belonging to 'a' group. with due regard to the attending circumstances as well as the evidence of pws. the evidence clearly would show that the accused removed the studs from the ears of moly. recent unexplained possession of articles belonging to the deceased is not only evidence as to the robbery but is also presumptive evidence of the charge of murder as well baiju v. thus, it cannot be said, it is wholy unusual that a person like the accused entertained suspicion as to her fidelity. while no one can hold a brief for a modern othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. state of maharashtra, air 1984 sc 1622 :(1984 cri lj 1738) after referring the decision in hate singh bhagat singh v. the answer could be out of frustration and remorse, it could as well be an account of repentance. it is clearly mandatory and should not be treated as a mere formality. , before the court, the court's, decision on the sentence would be vulnerable .as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant materials bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.l. manoharan, j.1. accused was charged under sections 302, 392 and 397, ipc for causing the death of his wife moly alias mariyam and having robbed her studs worn by her. learned sessions judge, wayanad found the accused guilty of the offence punishable under section 302, ipc, convicted and sentenced him to death. he was acquitted of the offences punishable under sections 392 and 397, ipc. the accused challenges the said conviction and sentence in this appeal; the reference is for confirmation of the death sentence imposed on the accused.2. the prosecution case can be summarised as follows :--accused married moly alias mariyam and was living with her in her house at perunkulam in vellamunda amsom and desom in wayanad district. accused picked up quarrel with moly on suspicion that she had illicit intimacy with pw-14 and tried to strangulate her. thereafter he left moly. she had a son (pw-4) in her previous marriage and after the accused left she was living on the income by selling milk of her cow to the co-operative society. accused left moly about an year before the occurrence in this case which was on 2-11-1990. as usual in the early morning of 2-11-1990 moly was proceeding to the milk co-operative society situated at pulinjal through the perunkulam -- pulinjal road and when she reached the scene of occurrence, accused who was laying in wait for moly pounced upon her and inflicted cut injuries on her neck with mo-2 knife. on receiving the cut injury of the neck she fell. pw-1 who was coming through the road from muthakkara to the milk co-operative society for selling milk when reached the junction where the perinkulam road joins, saw pw-5 a neighbour who too was proceeding to the milk go-operative society. a brook crosses the road to the milk society a little away from the junction. when pws. 1 and 5 just reached opposite side of the thodu a cry of a woman attracted their attention; pw-5 asked pw-1 to go and see what has happened. pw-1 handed over the milk can to pw--5 and rushed to the place from where the cry was heard. when he reached the junction pw-8 was seen coming in an agitated condition. then he saw moly lying in a pool of blood a little away and the accused sitting by her side engaged in snatching the studs from her ears. when pw-1 approached, the accused threatened him with mo-2. he ran to pw-5; by that time pw-7 also reached the place where pw-5 stood. he conveyed what he witnessed. they then went to the place where moly was lying and found her dead. accused had by that time left. thereafter pws. 1 and 5 proceeded to the society and after selling milk they along with others proceeded to the police station and pw-1 tendered ext. p1 f.i. statement before pw-23, sub-inspector of police. on the basis of ext. p1 he registered ext. p1 (a) f.i.r. against the accused under section 302, ipc. 3. investigation was taken over by pw-24. he went to the scene of occurrence and held ext. p3 inquest. in the meanwhile he informed pw-20, the finger print expert who reached the scene of occurrence and on noticing three finger prints on mo-2 knife which was lying at the scene he developed and preserved the same and affixed his initials. under ext. p-3 inquest pw-24 seized mo-2 knife, mo-3 milk can carried by moly and mos. 4 to 12 personal belongings of moly. the dead-body was sent for postmortem. autopsy was conducted by pw-17. he issued ext. p7 postmortem report. pw--24 also prepared ext. p2 scene mahazar on the next day.4. at about 5 p.m. on 2-11-1990 the accused was arrested from a place at kappundikkal by p w-23, sub-inspector of police. he seized mo--1 blanket worn by the accused and also mos. 14 to 19 of which mo-17 is the pieces of studs wrapped in mos. 15 and 16 kept in the pocket of mo-14 shirt worn by the accused. pw-22, police photographer took phots of the finger prints on the knife; exts. p-13 and p-14 are the photograph and enlargement, and exts. p-13 (a) and p-14(a) are the negatives respectively of exts. p-13 and p-14. pw-21, finger print expert issued ext. p-15 opinion stating that the chance print developed was of middle right finger which was identical with the specimen finger print of middle right finger of the accused. mo-13 towel belonging to the deceased was seized under ext. p5 by pw-24. pw-24 sent report to the effect that the investigation is proceeded under section 392 and 397, ipc also. he questioned the witnesses, completed the investigation and laid the charge before court. when the accused was questioned under section 313, cr. p.c. he denied the prosecution case and maintained that he is innocent. he said that he had to separate from moly on account of pw-14.5. ext. p2 scene mahazar and ext. p3 inquest report give the description where the deadbody was found. the deadbody had injuries. the details of the same are mentioned pw-17, the doctor who conducted the autopsy. pw-17 in his evidence as well as ext. p7 postmortem report stated, he noted nine injuries, five incised injuries, three abrasions, and lacerations on the lower part of lobule of both ears measuring 1 x 0.5 cms. injuries 1 and 2 were on the neck. injury no. 1 was 9 x 5cm. bone deep transverse incised wound on the front and left side of the neck which cut the windpipe, and oesophagus underneath was completely cut. the left half of the 4th cervical vertbra was also cut partially severing the spinalcord. injury no. 2 was also an incised wound located on the left side of the neck 2 cm. above injury no. 1. he said that the death was due to injuries 1 and 2. he also said that injury no. 5, the laceration oh the lower part of the lobule of both ears, could be caused while forcibly removing the ear rings. he added that both the lobules were torn, according to him the cut injuries could be caused with a weapon like mo-2.6. the medical evidence unambiguously would show that the death was homicide and with due regard to the nature and seat of the injuries, particularly injuries 1 and 2, it is clear that the assailant intended to cause death. consequently the death was culpable homicide amounting to murder.7. prosecution relies on the evidence of pws. 1 and 8 the occurrence witnesses corroborated by the evidence of pws. 5 and 7. the prosecution also relies on the evidence of seizure of mo-17, the evidence of pw-10 and the recovery of mo-2 knife which had the finger print of the accused. along with the said evidence the prosecution also relies on the evidence as to motive spoken to by pw-4 and pw-8.8. learned counsel for the appellant contended that the witnesses are chance witnesses; their evidence cannot be relied on as according to the learned counsel the very investigation was influenced by pw-14 who had enmity against the accused. it was maintained by the learned counsel that the evidence as regards the finger print of the accused on mo-2 and also the recovery of mo-17 are unworthy of acceptance as they suffer from serious infirmities. according to him the evidence will not bring home the guilt of the accused beyond the shadow of reasonable doubt. alternatively it was maintained by the learned counsel that at any rate the award of death sentence cannot be sustained.9. on the other hand the learned additional director general of prosecution maintained that the evidence of the occurrence witnesses since is effectively corroborated by other evidence that by itself is sufficient to prove the guilt of the accused. it was also maintained by him that the recovery of mo-17 from the person of the accused at the time of arrest is a highly incriminating circumstance which will lend effective corroboration to the evidence of pw-1. learned additional director general of prosecution contested the contention of the learned counsel for the appellant that the investigation was influenced by pw-14. according to the learned additional director general of prosecution the nature of the offence justifies the extreme penalty and therefore the sentence awarded to the accused cannot also be called in question.10. ext. p-12 plan prepared by pw-19, the village officer shows the scene of occurrence and the surroundings. the scene of occurrence also is described in ext. p2 scene mahazar. it would show that the occurrence was in a road proceeding from perinkulam through j. & j. coffee estate.11. pw-1 said that he knows the accused and the deceased, that he is residing near the j. & j. coffee estate, that moly was the wife of the accused, that there is a milk co-operative society at pulinjal and that he, moly and others used to sell milk to that society. in the early morning on 2-11-1990 as usual he left for the society with milk through muthakkara-pulinjal road and when he reached the junction where the perinkulam road joins muthakkaka road, he saw pw-5, from there both together proceeded through punlinjal road and when they reached about 15 metres towards west and crossed the thodu which flows across the road, they heard a cry of a woman, upon which pw- 5 after taking the milk can from him asked him to go and see as to what was happening. he therefore returned to the junction and on the way he saw pw-8 coming from the junction in an agitated condition, and when he reached the junction he saw moly lying a little away in the road and the accused sitting near her head engaged in snatching something from her ear. when the accused saw him he (accused) threatened him with mo-2 asking him to run away, else he would be killed. he raised an alarm and ran to pw-5. he told pw-5 what he saw. when they reached the scene accused was not there, and found moly dead. he deposed that, he and pw-5 went to the milk co-operative society, sold the milk proceeded to the police station and tendered ext. p1 f.i. statement. he also said that, about an year before the occurrence the accused and the deceased quarrelled and the accused left her. he said that, when he saw the accused near moly he was having mo-1 blanket. he also saw milk spilled at the scene and mo-3 can lying there. he noticed mo-2 knife lying near the deadbody. pw-5 corroborated pw-2.12. pw--7, a neighour to the scene of occurrence said that while he was proceeding to the church and reached the junction he heard a sound and saw pw-1 going towards pw-5 who was standing a little away. when he reached them pw-1 said that, the accused murdered moly and that the accused threatened him. though pw-1 saw only part of the occurrence. pw-8 has sworn to her having seen the whole occurrence. she is an illiterate lady, aged 55. she said that she knows moly and the accused is her husband. on the date of occurrence while she was proceeding to the church for participating in 'qurbana' and reached the junction, she heard the cry of a woman and saw the accused inflicting a cut injury on the neck of moly. she stood behind a coffe plant and saw the accused again inflicting cut injury on the neck of moly and when moly fell accused removed the studs from her ears. scared, she rushed to the church; on the way she saw pws. 1 and 5. though she did not reveal to pws. 1 and 5 as to what she saw, on reaching the church she told the occurrence to those assumbled in the church. she has also deposed that on a prior occasion when the accused attempted to strangulate moly, her son and others saved her and that the accused left moly thereafter. she said that she was questioned by the police.13. learned counsel for the appellant contended that these witnesses being chance witnesses, their evidence is not reliable. he also maintained that they are swearing falsehood at the instance of pw-14 who is inimical towards the accused. this contention of the learned counsel cannot be accepted particularly in view of the time of occurrence and the scene of occurrence. these witnesses have accounted for their presence at the time of occurrence. the occurrence took place in a road. the occasion for the presence of pws. 1 and 5 was that they were carrying milk to the society. moly too was carrying milk to the society. pw-8 was on her way to the church. as is held in the decision in rana partap v. state of harayana, air 1983 sc 680 : (1983 cri lj 1272) when an occurrence takes place in a road pedestrians are the natural witnesses. nothing is brought out in the evidence of the said witnesses to show any interestedness in the prosecution of enmity against the accused. no suggestion was made to these witnesses that they are swearing falsehood at the instance of pw-14. therefore, the evidence of these witnesses cannot be rejected on the ground that they are chance witnesses. apart from the same, there is another aspect to be noted in this connection. ext. p1 f.i. statement was tendered without delay. the occurrence was at about 7.20 a.m. on 2-11-1990 and the f.[. statement was tendered at 8.30 a.m. on the same day. it reached the magistrate on 2-11-1990 at 6.45 p.m. thus there was hardly any time for any mainpulation. learned counsel for the accused contended the fact that the f.i. statement is descriptive of the details of the occurrence, is an indication of prior deliberation. since the f.i. statement was tendered within an hour of the occurrence, the said contention of the learned counsel cannot be accepted. the f.i. statement thus corroborates the testimony of pw-1.14. the attack against the evidence of pw-8 is that her name is not mentioned in ext. p1. it is not necessary that the names of all the occurrence witnesses should find a place in the f.i. statement. in that agitated moment if the occurrence witness who tendered ext. p1 omits to mention the names of all the occurrence witnesses, that by itself cannot be a ground to reject the evidence of the occurrence witnesses. of course, if the name of the occurrence witnesses also finds a place in the f.i. statement that could add to the credibility of the witnesses, but as indicated, the omission by itself need not necessarily lead to the conclusion that such a witness is un-reliable. in view of the fact that, hostility or enmity is neither brought out in the cross-examination of pw-8 nor even a suggestion in that regard having been made, we do not consider that evidence of pw-8 can be rejected on the ground that here name does not figure in ext. p1 or that she was not questioned at the inquest. this is particularly so as there is effective corroboration for the evidence of these witnesses from other source.15. the evidence of pw-8 would show that the accused attempted to strangulate her about an year before the occurrence, at the intervention of others moly was saved and it was thereafter that the accused left her the evidence of pw-10 would show that at about 5-5.30 p.m. on 1-11-1990 the accused came to his house and stayed there. he said that, when he woke up on the next morning the accused had already left. his wife told him that the accused left with mo-1 blanket given to him for sleep during the night. pw-10 would further swear that on learning that moly was murdered he went to the scene. he noticed, a knife lying a little away from the dead body. he had a doubt that the same belonged to him. therefore, he returned to his house and verified in the roof of the verandah where he had kept the knife. he found mo-2 knife missing. he identified mo-2 knife. pw-23 arrested the accused on 2-11-1990 at about 5 p.m. at kappundikkal away from the scene of occurrence. he saw accused wearing mo-1. he seized mo-1 along with mos-14 to 19 under ext. p4 to which pw-6 is an attestor. ext. p11 chemical analyst's report would show that mo-1 had human bloodstain of group 'a'. mos. 4, 5 and 7 the blouse, lunki and brassiere of the deceased also contained human blood of 'a' group. thus mo-1 blanket which was given to the accused by pw-10 for this sleep during the night of 1-11-1990 was found worn by the accused at about 5 p.m. on 2-11-1990 and the said blanket contained bloodstain of 'a' group. this is an incriminating circumstance against the accused.16. mo-2 knife belonging to the accused was found at the scene near the deadbody. pw-10 who was not cross-examined said that, the knife was kept in the roof of the verandah of his house where the accused slept in the night of 1-11-1990. the knife was seized by pw-24 under ext. p3 inquest. pw-20, finger print expert developed and preserved the finger print obtained on the knife. pw-22, the police photographer took exts. p-13 and p-14 photographs of the finger print and its enlargement. pw-22 compared the photographs of the chance finger print with specimen print of the accused and issued ext. p-15 expert opinion. pw-21 said that, the chance print of the right middle finger is identical with the finger print of the right finger of the accused. this is a positive link to connect the accused with the crime.17. in the statement under section 313, cr.p.c. accused said that when he was taken to the police station he was asked to catch-hold of the knife. learned counsel for the accused/appellant contended that in view of the fact that the photopraphs were taken after the arrest of the accused there is enough force in the submission of the accused in his statement under section 313, cr.p.c. this argument looses its value in view of the fact that the accused did not make any complaint in that regard when he was produced before the magistrate. pw-20 developed and preserved the chance finger print at the scene and he initialed the same. in such circumstance, the contention that the chance print was taken at the police station at the instance of the police cannot be accepted. as noticed, this is yet another piece of evidence which would; connect the accused with the offence.18. pw-17, the doctor said that the injuries sustained by moly could be caused with a weapon like mo-2. mo-2 also had blood stained belonging to 'a' group. thus mo-2 was involved in the occurrence is clear and the evidence of pw-21 along with ext. p-15 would show that the accused held the weapon and it was with that weapon the injuries were inflicted.19. the evidence of pw-23 would show that, at the time of arrest the accused was wearing mo-14 shirt. he seized mos. 14 to 19 under ext. p4. as noticed pw-6 is an attestor to ext. p4. mo-14 shirt had human bloodstains of 'a' group as per ext. p11 chemical analyst's report. the more important aspect to be noted in this connection is pws. 1 and 8 said that they saw the accused snatching studs from the ears of moly. the evidence of pw-13 the wife of pw-14 would show that mo-17 belonged to moly. the evidence of pws. 13 and 14 is to the effect that their relationship with the accused and moly were cordial. pw-13 had occasion to note mo-17. pw-17, the doctor noted five injuries in ext. p7. injury no. 5 is laceration in both the lobules of ears of moly. the evidence of pws. 1 and 8 thus gets corroboration from the medical evidence.20. now coming to the evidence of pw 23 he found mo-17 parts of studs wrapped in mos. 15 and 16 kept in the pocket of mo-14 shirt worn by the accused. the evidence thus is compelling to the effect that the accused removed the studs and he was having it at the time of arrest. when questioned under section 313, cr. p.c. the accused said that when he was taken in the jeep a head constable put a packet in his pocket. with due regard to the attending circumstances as well as the evidence of pws. 6 and 23, the said statement of the accused cannot be accepted. the evidence clearly would show that the accused removed the studs from the ears of moly.21. in this connection it is necessary to advert to the finding of the lower court to the effect that the accused is not guilty of the offences punishable under sections 392 and 397, i.p.c. the learned sessions judge did not disbelieve the evidence of the seizure of mo-17 from the person of the accused. but the learned sessions judge was of the view that the ingredients of the said offence are not made out. of course, there being no appeal against the acquittal of the accused of the offence punishable under sections 392 and 397 of the ipc, this court cannot reverse the said acquittal. but on appreciation of the evidence this court is entitled to arrive at its own conclusion. the evidence shows, mo-17 was seized from the person of the accused at the time of arrest. the principles laid down in the decision in brathi v. state of punjab, air 1991 sc 318 : (1991 cri lj 402) lends support to the said conclusion. recent unexplained possession of articles belonging to the deceased is not only evidence as to the robbery but is also presumptive evidence of the charge of murder as well baiju v. state of m. p., air 1978 sc 522 : (1978 cri lj 646). the said pieces of evidence lend effective corroboration to the evidence of the occurrence witnesses together. the said evidence would establish the prosecution case against the accused. adding to this, there is the evidence of motive. as noticed pw-4, the son of deceased and pw-8 have sworn to the fact that the accused attempted to strangulate moly about one year before the occurrence and that after the said incident he left moly. in his statement under section 313, cr. p.c. the accused said that the cause of his separation from moly was pw-14. thus the prosecution case that the accused had suspicion that moly had illicit intimacy with pw-14 finds support from the statement of the accused under section 313, cr. p.c. the evidence of pws 4 and 8 that, at one point of time the accused attempted to strangulate moly has to be taken in the context of the said answer given by the accused under section 313, cr. p.c. thus the prosecution is successful in proving motive also. when the evidence of the occurrence witnesses thus gets enough corroboration from other sources, we are unable to agree with the learned counsel for the appellant when he submitted that, the evidence of these witnesses cannot be accepted. the argument that pw-14 is an influential person and that it was at his instance the accused is implicated in the offence does not get support from the evidence. pw-13, the wife of pw-14 said that the accused and pw-14 were intimate and that on two occasions when the accused was implicated in certain criminal cases the accused was saved with the help of pw-14. from that alone it is not possible to infer that it was at the instance of pw-14 the accused was implicated in this case. particular advertence to the evidence of pw-10 in this context is necessary. pw-10 was not cross-examined. the accused who was away from the place appeared in the evening of 1-11-1990, in the early morning taking along with him the blanket given to him for sleep and also the knife which was kept in the roof of verandah in which he slept. this would show that the accused came with a purpose, he waited in morning for the deceased to come through the road which led to the milk co-operative society where she had to sell the milk, and when she reached the place he struck her. the evidence of these witnesses cannot be rejected on the assumption that it was pw-14 who engineered the case against the accused. we are unable to accept the argument of the learned counsel for the appellant in this regard. therefore, it is clear that the finding of the learned sessions judge that the accused is guilty of the offence punishable under section 302, i.p.c. does not suffer from any infirmity. the i finding is only to be confirmed.22. now what remains is as regards the sentence awarded by the learned sessions judge. learned counsel for the appellant made severe criticism against the death sentence awarded to the accused. according to the learned counsel with due regard to the facts and circumstances, it was a case where the extreme penalty should not have been awarded. he maintained that the learned sessions judge has awarded the sentence on the basis of assumptions and irrelevant considerations. he maintained that the sentence awarded to the accused suffers serious infirmity inasmuch as the mandatory provisions of the law was not followed by the learned sessions judge. it is his case that, this case will not fall under category of 'rarest of rare cases' so as to impose the death penalty. the supreme court in the decision in machhi singh v. state of punjab, air 1983 sc 957 : (1983 cri lj 1457) held (at page 1466 (of cri lj)) : 'life imprisonment is the rule and death sentence is an exception. in other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances....in order to apply these guidelines inter alia the following questions may be asked and answered : (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?'. we have to recall the circumstance under which the offence was committed. though the prosecution would maintain that the accused is the second husband of moly, in his statement under section 313, cr. p.c. the accused would say that her first husband is alive, her second husband died and that he is her third husband. according to the learned counsel for the appellant, moly was a muslim lady and was married to one usman and pw-4 is the child born to usman in moly, that after she converted to christianity she was married to pappachan. pappachan died in an accident and that it was thereafter the accused married her. pw-4 is stated to be a muslim and his father is mentioned as uduman.23. pw-13 would swear that she and her husband (pw-14) and accused hail from kottayam and that it was herself and pw-14 who took initiative for the marriage of the accused with moly. her evidence would further show that even after the accused left, when moly had a fracture in her hand pw-14 helped her. of course, she denied that her husband had illicit intimacy with moly. the evidence of pw-14 would show that his family and moly were in intimate terms. after the death of moly, pw-4 is residing with pws. 13 and 14. this background has to be kept in view in appreciating the suspicion of the accused that pw-14 had illicit intimacy with moly. thus, it cannot be said, it is wholy unusual that a person like the accused entertained suspicion as to her fidelity. what we want to stress in this connection is, even according to the prosecution the offence was committed due to his suspicion as to the chastity of moly. it is true, the accused inflicted deadly injuries on moly. but the question to be considered as is held in the decision in machhi singh v. state of punjab, air 1983 sc 957 : (1983 cri lj 1457) is whether the imprisonment for life is altogether inadequate. in the decision in amruta v. state of maharashtra, air 1983 sc 629 : (1983 cri lj 1057) the accused committed pre-meditated murder of his wife and daughter, there was no justification for the murder of the daughter. accused and his wife frequently quarrelled and accused suspected her chastity. there was no basis for the suspicion entertained by the accused. the accused was sentenced to death by the sessions court; the sentence was confirmed by the high court. the accused came up before the supreme court for special leave under article 136 of the constitution. the supreme court observed (at page 1058 (of cri lj)) :we have anxiously considered the question of sentence. while on the one hand, it is clear that the murders were premeditated and there was really no justification whatsoever for the murder of shashikala, on the other hand, we have the circumstance that the accused and the deceased, janabai were frequently quarrelling and the accused suspected the chastity of his wife. janabai had infact left the house of the accused with her daughter about two weeks prior to the occurrence. we do not know that there was any basis for the suspicion entertained by the accused regarding janabai's chastity, but we do know that accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. he was apparently inclined to brood over the wrong suspected by him to have been done to him. while no one can hold a brief for a modern othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs.ultimately the appeal was allowed and the supreme court set aside the sentence of death and substituted the sentence of imprisonment for life.24. we have pointed out, the very prosecution case and the evidence regarding the circumstance under which the accused entertained the belief that moly was unfaithful to him. that has to be taken into account with due regard to the antecedent of parties. with due regard to the said aspect that emerges from the evidence it could be noticed that this case is similar to amruta's case, air 1983 sc 629 : (1983 cri lj 1057).25. the learned sessions judge has stated that the accused had killed his first wife and undergone imprisonment for the same. that along with the answer given by the accused when he was asked as to the sentences to be awarded to him were taken as circumstance which would warrant the imposition of capital sentence.26. learned counsel for the appellant contended that there was no basis for the said observation of the learned sessions judge. as regards the case that the accused had killed his first wife, the evidence that is now relied on by the learned additional director general of prosecution is that of p w-13, the wife of pw-14. in the cross-examination of pw-13 she said that the accused was in jail in connection with the killing of his wife. in the re-examination it is brought out that the accused was in jail on conviction. in ext. p1 f.i. statement it is stated that pw-1 had hearsay information that the accused had been in jail for causing the death of his wife. neither the judgment in that case was produced nor any investigation whatsoever was conducted as regards the same. in fact the number of the said case even is not mentioned any where. the information as regards the same to pw-13 is also not known. it is a matter which could be proved by documentary evidence; nothing is produced. to crown all these, though such an incriminating statement was made by pw-13 and the learned sessions judge relied on that, the same was not put to the accused and his explanation sought when he was questioned under section 313, cr. p.c. in the decision in sharad v. state of maharashtra, air 1984 sc 1622 : (1984 cri lj 1738) after referring the decision in hate singh bhagat singh v. state of madhya bharat, air 1953 sc 468 : (1953 cri lj 1933) it is held :ever since this decision, there is a catena of authorities of this court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under section 342 or section 313 of the criminal procedure code, the same cannot be used against him.what is to be noted in this connection is, the said incriminating part of the evidence was also relied on to award death sentence to the accused. it is on the basis of the said evidence the learned sessions judge made the observation that there is no chance for reforming the accused. the very basis of the said view itself is knocked off because of what is stated above.27. now what remains is the answer given by the accused when he was questioned as regards the sentence to be awarded to him. as already noticed, the evidence in this case will not compel the awarding of death sentence. the accused when asked as regards the sentence, he said that, even if he is sentenced to death, he should not be sentenced to undergo imprisonment for life. when the court on the basis of the evidence and circumstance comes to the conclusion that the accused is liable to be imposed a particular sentence, merely on the basis of the wish of the accused it will not be justifiable for the court to award the sentence sought by the accused. the nature of the answer given by the accused of course can be taken into consideration along with the other circumstances and evidence relating to the said aspect. what is highlighted by the learned counsel for the appellant, is, as soon as the accused was pronounced guilty of the offence under section 302, i.p.c. he was asked with respect to the sentence. according to the learned counsel, there was hardly any time for the accused to regain his composure and give a rational answer to the question. it was maintained by him that there was total violation of section 235(2) of cr. p.c. inasmuch as the accused was not given time to give answer to the question. the answer could be out of frustration and remorse, it could as well be an account of repentance. in the decision in allauddin mian v. state of bihar, air 1989 sc 1456 : (1989 cri lj 1466) with reference to section 235(2) of cr. p.c. the supreme court held (at page 1477 (of cri lj) :since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. it is clearly mandatory and should not be treated as a mere formality. in a case of life or death as in the case of punishment for murder, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. if the choice is made without giving the accused an effective and real opportunity to place his antecedents, social and economic back-ground, mitigating and extenuating circumstances, etc., before the court, the court's, decision on the sentence would be vulnerable .... as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant materials bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.in that case accused 1 and 2 were sentenced to death. the high court confirmed the sentence of death for the murder of two infant girls. there was no compliance of section 235(2) of the cr. p.c. the supreme court set aside the sentence of death and converted it to imprisonment for life.28. the learned additional director general of prosecution relying on the decision in state of maharasthra v. sukhdev singh (1992(3) scc 700 : (1992 cri lj 3454) contended that merely because section 235(2) of the cr. p.c. is not complied with the sentence of death cannot be interfered with. in that case this aspect was considered. but the view expressed in allauddin mian's case, air 1989 sc 1456 : (1989 cri lj 1466) was reiterated. the argument against the adjournment was advanced on the basis of the third proviso to section 309(2) cr. p.c. with reference to the same the supreme court observed :the underlying object is to discourage frequent adjournments. but that does not mean that the proviso precludes the court from adjourning the matter even where the interest of justice to demands. the proviso may not entitled an accused to an adjournment but it does not prohibit or preclude the court from granting one in such serious case of life and death to satisfy the requirement of justice as enshrined in section 235(2) of the code.in that case the sentence of death awarded to accused 1 and 5 was not interfered with. they had told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith. the supreme court observed :it is thus apparent that before they made their statements admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so.it was under those circumstances, the supreme court confirmed the death sentence. this case does not have any such characteristics. therefore, the said decision cannot be pressed into service. in the decision in malikiat singh v. state of punjab, 1991 (4) scc 341 also it is held that the awarding of sentence on the same day of pronouncement of conviction is not in accordance with law, and that normally the same would have the effect of remand in the case for reconsideration. yet, the supreme court held with due regard to circumstance in that case that, it is sufficient that the sentence of death is converted into imprisonment for life. the effect of the answer given by the accused to the question regarding sentence has to be viewed in the context of the principles laid down in the decisions referred to early. we have already found that the facts and circumstances of the case do not warrant the imposition of death sentence. when that is the position, in the circumstance of this case, the sentence of death has to be set aside and the accused has to be sentenced to undergo imprisonment for life.in the result the finding and conviction against the accused under section 302, i.p.c. are confirmed. the sentence of death is set aside and the accused is sentenced to undergo imprisonment for life. the appeal is allowed in part. reference is answered accordingly.