JUDGMENT

SARKARIA, J.:—The appellant was tried and convicted by the Additional Sessions Judge, Kamaon, under 654 Section 302, Penal Code, for the murder of Smt. Nikki and sentenced to death. He was further convicted under Section 302 (sic) (307?) Penal Code for the attempted murder of Mehlu, PW 3 and sentenced to three years rigorous imprisonment. He was also convicted on two counts under Section 324, Penal Code for causing hurt to David PW 2 and Smt. Siraji and sentenced to one year s rigorous imprisonment. The High Court of Allahabad dismissed his appeal and confirmed the death sentence.

2. Hence this appeal by special leave limited to the question of sentence.

3. The prosecution story ran as follows:

Hansa, P.W. 1, and David P.W.2, are brothers and the deceased was their sister. Mehlu, PW 3, is the husband of the deceased. He is the son of the brother of the appellant; P. Ws. 1 and 2 used to reside in Nausar Catholic Farm, while PW 3 was living at the Daah Farm, both within the territorial jurisdiction of P.S. Khatema.

4. For about two years preceding the occurrence, the appellant had illicit connection with the deceased. The appellant was anxious to marry her. But her parents did not agree to this matrimonial proposal on the ground that there was a disparity in age. The appellant however persuaded Mehlu s father to marry Mehlu to the deceased. Mehlu and her (sic) (his?) father were aware of the illicit intimacy of the deceased with the appellant. They agreed to the matrimonial proposal on the understanding that the appellant would thenceforth discontinue his illicit intimacy and visits to Daah Farm.

5. About one and half months before the occurrence, however, the appellant in violation of that understanding went to Mehlu s house and insisted on going to bed with the deceased. Thereupon a sharp quarrel took place between the appellant and Mehlu. Mehlu s father also warned the appellant not to misbehave in future.

6. About 15 days before this occurrence, the appellant again visited Mehlu s house and attempted to molest the deceased. Again, a jhagra took place between the appellant and the deceased s husband.

7. On the night between the 2nd and 3rd of October, 1971, David and Mehlu were sleeping on one charpoy in the house of David in Nausar Farm, while Hansa was asleep on a separate cot in the courtyard at a distance of about 10 or 12 paces from them. The deceased was asleep on another charpoy about 10 or 12 paces away from them. Her mother, Smt. Siraji, was also lying on a charpoy four or five paces away from her.

8. At midnight, David woke up on receiving a stab and saw that his assailant was the appellant. At the same time he saw Mehlu crying out on account of a stab wound. The appellant then immediately went to Nikki s charpoy and stabbed her. Hearing the hue and cry of the victims, Smt. Siraji woke up. The appellant gave her two blows with the knife and ran away into the sugar cane field. The injured were taken to Dr. Cheema at Majhola. On reaching Majhola, Nikki succumbed to her injury. Her dead-body and the other injured persons were then taken to Pilibhit, Hansa, P.W.1, went and lodged the report at P. S. Khatema.

9. Shri R. K. Maheshwari, appearing as amicus curiae has pointed out two circumstances which according to him, justify a compassionate view in the matter of sentence. The first is the background of the case. The second is the long interval between his conviction by the trial court and the hearing of this appeal.

10. As regards the first, Counsel has tried to conjure up a whole history from some fragmentary facts appearing in the cross-examination of PWs David and Mehlu. The story put forth is that PWs 1, 2, 3 and the father-in-law of Mehlu all knew about the illicit intimacy of the appellant with the deceased. Therefore they should not have objected to the validation of this relationship by a marriage between the lovers. It is pointed out that 655 there was not such a great disparity in age as would have made their