Nagendra Rai, J.

1. The sole appellant was put on trial before the Additional Sessions Judge, VI, Gaya, in Sessions Trial No. 427 of 1997/ 45 of 1997 for the offences under Secs. 302 and 307 of the Indian Penal Code (for short IPC) and has been convicted under the aforesaid sections and sentenced to capital" punishment under Sec. 302 and - life imprisonment under Sec. 307 of the IPC.

2. The Additional Sessions Judge made a reference under Sec. 366 of the Code of Criminal Procedure (hereinafter referred to as the Code) for confirmation of death punishment and the appellant has filled an appeal against his conviction and sentence and both of them have been heard together and are being disposed of by this common judgment. The convict accused shall be referred to hereinafter as appellant.

3. The prosecution case is that Mahendra Singh (PW 10) is resident of village Ranipur Chowki within Chawk Police Station of district Patna, PW 12 Sona Devi is his wife. Five daughters, including deceased Saroj Devi and two sons, namely, PW11 Sudhir Kumar Singh and P.S. 13 Randhir Kumar Singh were born from their wedlock. Deceased Saroj Devi was first married to Krishna Singh of village Ranipur, who died after a year of marriage. Deceased Saroj Devi was employed as a Peon in Handloom section of the Bihar Small Scale Industries Corporation at Apna Bazar, Gandhi Maidan, Patna, Later on, she was, transferred to Gaya and there she remarried with appellant Devendra Kumar. Mahto, resident of village Parnama, P.S. Konch, District Gaya, in the year 1985 in the Court, two children one deceased Shilpi and a minor son were born out of the said wedlock. It appears that the relationship between them became strained when deceased Saroj Devi started claiming partition of the house situated in the village of appellant Devendra Kumar Mahto. The appellant also used to take money forcibly from the deceased, which resulted into bad relation between them. On 23-2-1996, the appellant with his V/s. the Saroj Devi an two children Silpi and minor son, left Patna in the night by 15 P.G. train for going to their village home. In the way when the train was in between Chakand and Gaya Railway Junction, the appellant started stabbing deceased Saroj Devi with dagger. He also started stabbing Shilpi his daughter. The appellant wanted to throw his daughter Shilpi out of the running train, which was resisted to by her mother Saroj Dev. Thereafter, the appellant pushed her inside the train and threw Shilpi out of the train. He also threw his minor son from the train.

4. Injured Shilpi Kumari was thrown near Nawada Gumti, which is at a distance of 2/3 kms, from Gaya Railway Junction. Havildar Subodh KumarYadav (PW 3) who was posted at Chhoti Nawada Town Out Post falling within Delha Police - Station got an information in the morning on 24-2-1996 that a girl was lying injured by the side of the railway track near Nawada Gumti. Thereafter, he went there and found the girl lying in injured condition having received injuries in the abdomen and other parts of her body. The girl riarrated that her name is Shilpi Kumari, daughter of appellant Devendra Kumar Mahto, She also stated that the quarrel had taken place between her mother and father and her father pushed her outside the train. She disclosed the name of her mother as Saroj Devi. She also stated that her one brother aged two years was also there in the train.

5. Thereafter, he informed the Police Station and the injured was taken to Gaya Pilgrim Hospital. On the same day i.e. 24-2-1996, PW 16 Ram Sajeevan Singh, who was posted as Sub - Inspector of Police in Government Railway Police Station, Gaya, received a memo from the Railway authorities with regard to presence of dead body in Compartment No. 8081/Y of the 15 P.G. passenger train stationed at Platform No. 8. He went there to inspect the compartment. In the meantime, he received an information from one today Paswan, Constable, that a girl in injured condition was found l