Jaswant Singh, J. - (1.) This appeal by special leave is directed against the Judgment and Order dated April 15, 1976 of the Allahabad High Court (in Criminal Appeal No. 2489 of 1975 and Reference No. 64 of 1975) confirming the conviction of the appellant under S. 302, I. P. C. and the sentence of death imposed on him thereunder for intentionally causing the death of his own son named Gorakh Prasad aged about 30 years, on the night between September 1 and September 2, 1974, in the field of Phool Chand Lonia on the outskirts of village Patra Tola Fakirahna within the jurisdiction of Police Station Pipraich, District Gorakhpur.
(2.) The story as put forth by prosecution was as follows: The appellant who belongs to village Patra, District Gorakhpur was employed at the relevant time as Daftary in the D. A. V. College, Gorakhpur. About a year and a half, before the occurrence, the deceased who was a Peon in the same institution gave up service at the instance of the appellant and set up a tea-stall in a portion of the shop of P. W. Bharat Lal in front of the College. He was assisted in the management of the Shop by his younger brother P. W. Dinesh. Smt. Kapoora whom the deceased married about two years before the date of the occurrence resided in a separate portion of the house belonging to the appellant in village Parta which is about 14 miles from Gorakhpur. The deceased used to accompany the appellant every evening to his village and to return to Gorakhpur next morning. Some two months before the occurrence the appellant who was a widower started casting evil-eyes on Kapoora and making indecent overtures to her. He would often talk in disparaging terms to Kapoora about the deceased and tell her that she would have a comfortable and happy life if she agreed to live with him. Once when Kapoora was alone in the house, the appellant went near her cot at about 9 or 10 p.m. and caught hold of her hands with a view to commit criminal assault on her but she hurled abuses at him and succeeded in extricating herself by pushing him aside. About 4 or 5 hours later on the same night, the appellant made another attempt to have sexual intercourse with Kapoora but the latter foiled the same by putting up stout resistance, whereupon the appellant inflicted an injury on her nose with a knife. Kapoora complained about the misbehaviour of the appellant to her brother-in-law Dinesh as also to her husband when the latter came to the village whereupon the deceased strongly protested to his father but to no avail. With a view to implement his evil designs on Kapoora, the appellant often suggested to the deceased not to return to the village every evening as that would be detrimental to his business. The appellant also occasionally reprimanded and beat the deceased for not heeding his advice in the matter of his visits to the village. During the absence of the deceased from his village the appellant persisted in his attempts to have illicit intercourse with Kapoora. On one night the appellant became so desperate that he told Kapoora that he would have illicit intercourse with her at any cost. Feeling insecure, Kapoora slipped away and took refuge in the house of a neighbour and came back therefrom after a day and a half when her husband returned to the village from Gorakhpur. This time the deceased did not take things lying down and disclosed the nefarious designs of his father on Kapoora to his relatives and acquaintances whereupon the appellant felt humiliated and annoyed. On August 29, 1974, the appellant pressurised Kapoora and the deceased to write letters Exhibits Ka-2 and 3 expressing regret and admitting therein that the complaints made by Kapoora to the deceased about the misbehaviour of the appellant were false. On the evening of September 1, 1974, the appellant left Gorakhpur for his village Patra along with the deceased who was at that time wearing Pyjama Ext. 2, striped underwear Ext. 4, red langot Ext. 3 and shoe Ext. 1. On the way to the village the appellant murdered the deceased in the field belonging to Phool Chand Lonia with Banki Ext. 6 (which he had purchased a day or two earlier from P. W. Vishwanath) and concealed his body in a pit close to a nearby nallah. After thus disposing of the deceased and concealing his body the appellant arrived at his house at 2.30 a.m. when noticing the appellant completely drenched Kapoora asked him the reason for the same. The appellant replied saying that he had fallen in a pit near the railway line. In reply to another query made by Kapoora about the deceased, the appellant told her that he had not accompanied him because he was having stomach ache. The appellant chided Kapoora a little later for being morose and glum without her husband. Next morning the appellant left for Gorakhpur as usual and came back alone the same evening. On Kapoora"s asking him as to why the deceased had not come, the appellant tauntingly told her as to how he would earn his livelihood if he would come back daily to the village. Earlier in the day when P. Ws. Dinesh and Bharat Lal inquired from him at the tea stall at Gorakhpur about Gorakh, the appellant told Dinesh that Gorakh had stayed behind as he was having an abdominal pain. On 4th and 5th of September, 1974 also, the appellant went to Garakhpur in the morning and returned alone therefrom in the evening. While working in his field on the morning of Sept. 3, 1974, P. W. Shyam Lal was informed by one Mohammad that a dead body was lying in a pit near the field of Phool Chand. On receipt of this information, Shyam Lal went to the place indicated by the informant and saw a mutilated, disfigured, swollen, and unidentifiable dead body having a number of injuries on the left forearm, neck and other parts of the body lying partly inside and partly outside a pit near the paddy field of Phool Chand. Thereupon he went and informed the "Pradhan" of the village Patra named Nihal Singh. As Nihal Singh was in a hurry to go to Gorakhpur to purchase some medicines and to attend the court of the S.D.M. in connection with some case he wrote out the report (Exh. Ka-1) and despatched the same to the Police Station, Pipraich, through his son Surendra Pal. On coming to know that a dead body had been found from pit near the nallah, Kapoora became intuitively apprehensive about the safety of her husband and requested P. W. Satya Narayan to go to Gorakhpur and enquire about the welfare of her husband. Satya Narayan accordingly went to the tea stall of the deceased at Gorakhpur and made enquiries about the latter from P. W. Dinesh who told him that the deceased had gone to his village four days ago and had not returned since then. On being told by Satya Narayan that deceased had not returned to his house for the last four or five days, Dinesh went and fetched the appellant from the college. On being apprised by Satya Narayan about the purpose of his visit, the appellant told the former to go back to the village and tell Kapoora not to worry about her husband. Satya Narayan accordingly went back to the village and conveyed the appellant"s message to Kapoora. On receipt of the aforesaid report sent by P. W. Nihal Singh, S.I. Anand Prakash Tiwari, Officer-in-charge of the Police Station, Pipraich left for village Patra after making an entry in the general diary. On reaching the pit which lay towards the east of Tola near the railway, line, the S.I. saw a mutilated and disfigured dead body wearing Pyjama (Exh. 2), Langot (Exh. 3) and undewear (Exh. 4) lying therein. Thereupon the S.I. got some villagers from the adjoining village but none was able to identify the dead body. After preparing the inquest report and some other papers, the S.I. sealed the dead body in a gunny bag and sent the same for post-mortem examination through constable Sarbjeet Misra and Chowkidar Ram Surat. On Sept. 4, 1974, P. W. Dr. Anand Khanna performed the autopsy on the dead body which had greenish discoloration on the stomach and genitals and lower jaw, neck and abdomen whereof had been eaten away by maggots and found the undermentioned ante-mortem injuries on its person:- "1. Incised wound 6" X 4" Trachea, oesophagus and external and internal carolid vessels deep on both sides of neck and front. All above scrochin cut through and through cleanly. The wound was on left side. 2. Incised wound 1" X 1/4" on outer part of middle of left pina, skin and cartilage both cut through and through. 3. Abrasion wound area of 8" X 8" in front abdomen. 4. Abrasion wound area of 4" X 4" in front and middle of chest. 5. Incised wound 4 1/2" X 2" X muscle deep front of outer side of left forearm 3-3/4" X(3-3/4") above wrist joint. 6. External Organs of Generation."
(3.) The doctor made the following additional remarks on the post-mortem report:- "Sealed bundle one underwear, one silk pyjama piece and one langot sealed and handed over to accompanying constable.";