Judgment R. R. YADAV, J. ( 1 ) :- This reference for confirmation of death sentence is made by learned Addl. Distt. and Sessions Judge, No. 2, Sriganganagar to this Court vide his Judgment dt. 18-8-1992 arising out of sessions case No. 19/1991 by which he found Jasu alias Jaswant Singh guilty for committing brutal and cruel murder of Jaspal Singh under Section 302 I. P. C. and sentenced him to death by hanging by the neck till death and a fine of Rs. 100. 00. ( 2 ) THE learned trial Judge Further found the accused Jasu alias Jaswant Singh guilty for attempt to commit murder of Major Singh under Section 307, I. P. C. and sentenced him to 7 years R. I. and a fine of Rs. 500. 00 and in default to further under go one years simple imprisonment. The learned trial Judge also found the above named accused guilty for the offence under Sec. 397, I. P. C. and sentenced him to 7 years R. I. together with a fine of Rs. 500. 00 and in default to further under go one years simple imprisonment. The learned trial court further found that the accused named above was guilty for the offence under Sec. 450, I. P. C. and sentenced him to seven years R. I. and fine of Rs. 500. 00 and in default to further under go one years simple imprisonment. ( 3 ) THE substantive sentences under Sections 450, 397 and 307, I. P. C. were ordered by the learned Addl. Distt. and Sessions Judge to run concurrently. ( 4 ) THE accused appellant has also filed a criminal appeal No. 323/92 against the findings of guilt and sentences passed by learned Addl. Distt. and Sessions Judge as mentioned in the preceding paragraphs. It would be expedient to take up and decide the reference for confirmation of death/sentence made by the learned trial Judge to this Court as well as criminal appeal filed by the accused appellant together. ( 5 ) ACCORDING to the prosecution story Shri Ganga Singh; P. W. 1 lodged an oral report to Police Station Purani Abadi Distt. Sriganganagar on 8-10-88 that he was a riksha Puller in the city of Sriganganagar. He had three sons and two daughters. ( 5 ) ACCORDING to the prosecution story Shri Ganga Singh; P. W. 1 lodged an oral report to Police Station Purani Abadi Distt. Sriganganagar on 8-10-88 that he was a riksha Puller in the city of Sriganganagar. He had three sons and two daughters. Both the daughters were married, his eldest son aged about 19 to 20 years was also a Riksha Puller along with him. His two younger sons namely Jaspal and Major Singh were prosecuting their studies in a school. On the date of occurrence at about 4 pm P. W. 1 and his wife were at their residence and their aforesaid two sons namely Jaspal Singh and Major Singh aged about 12 to 13 years and 7 years respectively came from their school. The wife of P. W. 1 prepared tea and all of them took tea. After leaving their two sons at their residence both of them went to do manual labour for their sustenance. At about 6 pm when P. W. 1 was standing with his Riksha at Uda Ram Chowk Shaktiman Nayak came to him and asked him to proceed to his house at once. Upon the said information P. W. 1 immediately rushed up to his residential house where he found a crowd of men and women in front of his house. His neighbour Dropadi told her that his son Major Singh had received injuries who had been taken to hospital. Upon the aforesaid information without entering into his house he immediately rushed to the hospital where he found his son Major Singh in the state of unconsciousness. P. W. 1 found injuries on the head and on neck of his son Major Singh. He started to look after him then again at about 7 pm when he was in hospital his another neighbour Surendra Kaur told him that his son namely Jaspal Singh is lying dead in kotha. Upon this information the first informant P. W. 1 along with Chander Singh, Surendra Singh etc. immediately rushed up to his house where he found in his residential Kotha that his another son Jaspal Singh lying dead, who had injuries on his neck, on his front portion of the body from a sharp edged weapon. He informed to the police that enough blood has spilled on the ground near his dead body. immediately rushed up to his house where he found in his residential Kotha that his another son Jaspal Singh lying dead, who had injuries on his neck, on his front portion of the body from a sharp edged weapon. He informed to the police that enough blood has spilled on the ground near his dead body. A blood stained iron Chhuri and iron hammer were recovered vide memos Ex. P. 7 and Ex. P. 6 respectively as they were lying near his dead body. He further told the police that some unknown person due to enmity has committed murder of his son Jaspal Singh and has also caused grevious injuries to his son Major Singh. P. W. 1 further informed orally to the police that the dead body of his son Jaspal Singh is lying in his Kotha in the same condition in which he found it. On the basis of aforesaid oral information F. I. R. Ex. P-1 was drawn at Police Station purani Abadi Sriganganagar and investigation commenced. ( 6 ) AFTER completion of investigation challan was submitted by the Police against the accused appellant in the court of Addl. Munsif and Judicial Magistrate 1st class Sriganganagar, who committed the case for trial to the court of Learned Distt. and Sessions Judge, Sriganganagar for trial. Then the case was committed to the Court of Distt. and Sessions Judge, Sriganganagar by that time accused appellant Jaswant Singh was arrested and he was sent for trial to the court of learned Distt. and Sessions Judge, Sriganganagar from where the case was transferred to the court of learned Addl. Distt. and Sessions Judge, No. 2, Sriganganagar. The learned Addl. Distt. and Sessions Judge, No. 2, Sriganganagar framed charges against the accused appellant under Sections 450, 397, 307 and 302, I. P. C. ( 7 ) THE accused appellant pleaded not guilty and claimed trial. ( 8 ) THE prosecution examined 9 witnesses namely P. W. 1 Shri Ganga Singh, P. W. 2 Smt. Prakash, P. W. 3, Major Singh, P. W. 4 Shri Tek Chand, P. W. 5 Shri Prakash Chand, P. W. 6. Dr. K. N. Markandey, P. W. 7 Smt. Surendra Kaur, P. W. 8-Alok Tripathi, P. W. 9 Sunga Ram and produced 15 documents Ex. P-1 to Ex. P-15 in support of prosecution story. Dr. K. N. Markandey, P. W. 7 Smt. Surendra Kaur, P. W. 8-Alok Tripathi, P. W. 9 Sunga Ram and produced 15 documents Ex. P-1 to Ex. P-15 in support of prosecution story. The accused appellant pleaded ignorance about the offence, and did not adduce any evidence in support of his defence. He had specifically stated in his statement under Sec. 313 Cr. P. C. that he has no enmity with P. W. 3 Major Singh, injured and others. He did not go to the house of Major Singh. He also did not commit murder of Jaspal Singh. He has also stated in his statement that he is living in ward No. 27 where the complainant are residing for the past 10 to 11 years. ( 9 ) AFTER hearing the learned Public Prosecutor and learned counsel for the appellant the learned Addl. Distt. and Sessions Judge found the accused guilty as aforesaid and passed the aforementioned sentences. ( 10 ) WE have heard Shri S. K. Mathur, learned counsel for the appellant appearing as amicus curiae, Shri U. S. Bhargava, learned counsel for the complainant and Shri D. R. Bohra, learned Public Prosecutor appearing on behalf of the State and have carefully gone through the evidence on record. ( 11 ) THE main thrust of the argument of the learned counsel for the appellant Shri. S. K. Mathur is that it would be unsafe to convict the appellant on the sole uncorroborated testimony of a child witness P. W. 3 Major Singh with extreme penalty of death. In support of the aforesaid argument he placed reliance on the case of Ram Singh v. State reported in 1975 RLW 415 rendered by the Division Bench of this Court and on the case of Jetha Ram v. State of Raj reported in 1985 RLW 601 rendered by another Division Bench of this Court and on the case of Dula v. State rendered by yet another Division Bench of this Court reported in 1987 RCC 357. Secondly, the learned counsel for the appellant urged before us that the learned Addl. Distt. and Sessions Judge has committed an error on placing reliance on the fact of absconding of the accused appellant which has resulted into mis-carriage of justice and lastly he urged before us that in the present case while imposing extreme penalty of death the learned Addl. Distt. Distt. and Sessions Judge has committed an error on placing reliance on the fact of absconding of the accused appellant which has resulted into mis-carriage of justice and lastly he urged before us that in the present case while imposing extreme penalty of death the learned Addl. Distt. and Sessions Judge has ignored the mitigating circumstances in favour of the accused-appellant. The learned counsel submitted that the appellant was an unmarried young man of 18 or 19 years of age and there was no special reason to award the sentence of death to him. The learned counsel further submitted before us that keeping in view the legislative policy of Sub-Section 2 of Sec. 235 read with Sub-Section 3 of Section 354, Cr. P. C. this Court may make the choice of not imposing the extreme penalty of death on the appellant and give him a chance to reform himself and become a good member of society keeping in view the dignity and sanctity of human life. ( 12 ) THE learned Public Prosecutor Shri. D. R. Bohra appearing for the state controverted the aforesaid argument raised by the learned counsel for the appellant and canvassed before us for confirmation of the sentence of death so that it serves as a deterrant to similar depraved minds living in the State of Rajasthan. He also invited our attention to the latest increase in crime against defence less children due to which according to him the wards are very much scared about the safety of their children. According to the learned State counsel Mr. Bohra, there are no mitigating circumstances in the present case and the case was undoubtedly of rarest of the rare cases where the sentence of death alone would meet the ends of justice. In support of his contention learned Public Prosecutor Shri Bohra placed reliance on the case of Dhanan Joy Chatterji alias Dhana v. State of West Bengal reported in 1994 Cr Law Rep 83 rendered by their Lordships of Supreme Court. ( 13 ) NOW we propose to deal with the rival contentions raised before us in seriatim at the Bar. In support of his contention learned Public Prosecutor Shri Bohra placed reliance on the case of Dhanan Joy Chatterji alias Dhana v. State of West Bengal reported in 1994 Cr Law Rep 83 rendered by their Lordships of Supreme Court. ( 13 ) NOW we propose to deal with the rival contentions raised before us in seriatim at the Bar. ( 14 ) ACCORDING to the first submission made by learned counsel for the appellant it is urged before us that in the present case it would be unsafe to convict the appellant on the sole un-corroborated testimony of a child witness P. W. 3 Major Singh and to visit the accused with extreme penalty of death. It is well to remember that now it is settled law that even if there is a sole eye witness of a crime a conviction may be recorded against the accused provided the court which hears such witness regards him as honest and truthful witness. It is true that prudence requires that some corroboration may be sought from the other prosecution witnesses in holding an accused guilty on the testimony of a solitary witness. It is pertinent to mention that the presence of eye-witness, who is also injured at the time of occurrence was beyond question having regard to the fact that he had sustained injuries in the course of very same transaction at the very time and place of occurrence it is to be held that the facts deposed by him about the deceased victim and his deposition about his own injuries has to be attached great value keeping in view of fact that his presence at the scene of occurrence was natural and his presence near the deceased has been established beyond every shadow of doubt by reason of the fact that he himself has sustained injuries. The aforesaid discussion leads to an irresistable conclusion that deposition of an injured witness must be attached a highest testimonial value. Thus, a conviction can be maintained on the sole testimony of an eye-witness if it is of sterling worth. In the present case it is incorrect to say that learned Addl. Distt. and Sessions Judge has based the conviction on the uncorroborated testimony of P. W. 3 who is a child witness. Thus, a conviction can be maintained on the sole testimony of an eye-witness if it is of sterling worth. In the present case it is incorrect to say that learned Addl. Distt. and Sessions Judge has based the conviction on the uncorroborated testimony of P. W. 3 who is a child witness. As a matter of fact the deposition of P. W. 3 Major Singh is fully corroborated by the deposition of P. W. 6 Dr. K. N. Markandey who conducted the Post Mortem and prepared the Post Mortem report of deceased Jaspal Singh Ex. P- 10 and who also examined and prepared the injury report of P. W. 3 Major Singh marked as Ex. P-11. The seizure memo of Iron hammer Ex. P-6 and seizure memo of blood stained chhuri Ex. P-7 recovered from the scene of occurrence and the deposition of Motbir witness further corroborates the testimony of injured witness P. W. 3, Major Singh. Dr. K. N. Markandey had adviced X-Ray of injury Nos. 1 and 6 received by P. W. 3 Major Singh and on his advice X-Ray of injury Nos. 1 and 6 Ex. 12 and Ex. P. 13 were done in presence of P. W. 6 Dr. K. N. Markandey on the basis of two X-Ray plates Ex. P-12 and Ex. P-13, P. W. 6 Dr. K. N. Markandey has prepared Ex. P-14, X-Ray report, which is duly proved by him. ( 15 ) A close scrutiny of the judgment of learned Addl. Distt. and Sessions Judge throws a flood of light that it is incorrect to say that the conviction of accused appellant is based on sole uncorroborated testimony of P. W. 3, Major Singh who is an injured witness, but the deposition of P. W. 3 is corroborated from the aforesaid material on record. The learned Addl. Distt. and Sessions Judge, after an anlytical discussion of the oral and documentary evidence on record has committed no error on relying on the deposition of P. W. 3, Major Singh, which is fully corroborated and an argument contrary to it is not acceptable to us. The learned Addl. Distt. and Sessions Judge, after an anlytical discussion of the oral and documentary evidence on record has committed no error on relying on the deposition of P. W. 3, Major Singh, which is fully corroborated and an argument contrary to it is not acceptable to us. ( 16 ) IN this regard, the learned counsel urged before us that there is a general belief that a child is a artless, innocent and uncrafty, but at the same time a child can be externally influenced and can be easily tutored as to what is to speak in the court. Whereas, a child has been influenced and tutored to give a particular statement, he fails to distinguish between what he has seen and what he has been tutored due to his raw understanding, therefore, while assessing and evaluating the testimony of a child witness the possibility of his being tutored and influenced specially when there is an opportunity for doing so will have to be kept in view. There is no quarrel with the aforesaid submission made by the learned counsel for the appellant before us but in the present case we are of considered opinion that learned Addl. Distt. and Sessions Judge after carefully scrutinising the testimony of P. W. 3 Major Singh found that his deposition before him was truthful and is unpolluted from any external influence, therefore, in such a situation the learned Addl. Distt. and Sessions Judge was entitled to give the highest credit and weight to the testimonial value of injured witness P. W. 3, Major Singh. The learned Addl. Distt. and Sessions Judge had looked for corroboration of the testimony of P. W. 3 from other circumstantial evidence on record while appreciating the testimonial value of P. W. 3 Major Singh, the learned Addl. Distt. and Sessions Judge in our humble opinion has exercised extreme care and caution. The learned Addl. Distt. and Sessions Judge had put questions to the child witness P. W. 3 Major Singh and the child witness P. W. 3 has given intelligent answers to him and after getting answers from P. W. 3 the learned Addl. Distt. and Sessions Judge has rightly came to the conclusion that P. W. 3 is able to understand what is wrong and what is right. The learned Addl. Distt. Distt. and Sessions Judge has rightly came to the conclusion that P. W. 3 is able to understand what is wrong and what is right. The learned Addl. Distt. and Sessions Judge had an opportunity to see the demeanour of P. W. 3 during the course of his deposition before him therefore, in such a situation it is not acceptable to us that learned Addl. Distt. and Sessions Judge has committed any error in assessing and evaluating the testimony of a child witness P. W. 3 Major Singh. We fully agree with the learned Addl. Distt. and Sessions Judge in assessing evaluating the testimonial value of deposition made before him by P. W. 3 Major Singh whose presence at the scene of occurrence is established by prosecution beyond pale of doubt. A perusal of Ex. P-11, Injury report of P. W. 3 Major Singh reveals that at the time of occurrence he received 7 injuries out of which injury No. 1 was lacerated wound, injury No. 3 and injury No. 4 were lacerated wounds, injury No. 2 was swelling injury No. 5 was depression, injury No. 6 was found to be swelling while injury No. 7 was found to be incised wound. According to the deposition of P. W. 6 Dr. K. N. Markandey he examined the injuries on the person of P. W. 3 Major Singh on 8-10-88 at 7. 05 p. m. who at the time of examination was of 7 years and was hospitalised in surgical ward a of the hospital. The aforesaid injuries on the person of P. W. 3 were examined at the instance of police and during the course of examination he found 7 injuries mentioned above. Out of seven injuries mentioned above injury No. 7 according to the deposition of P. W. 6, Medical Jurist was caused by sharp edged weapon and rest of the injuries were caused by blunt weapon. He has also deposed that he has advised for X-Ray for injury Nos. 1 and 6 and after X-Ray he found injury Nos. 1 and 2 to be grevious injuries. According to the deposition of P. W. 6 injury No. 7 in his opinion was a grevious injury and if medical assistance was not made available it could have proved fatal. P. W. 6 has proved the X-Ray plates Ex. P-12 and Ex. 1 and 6 and after X-Ray he found injury Nos. 1 and 2 to be grevious injuries. According to the deposition of P. W. 6 injury No. 7 in his opinion was a grevious injury and if medical assistance was not made available it could have proved fatal. P. W. 6 has proved the X-Ray plates Ex. P-12 and Ex. P-13 as on the date of X-Ray i. e. on 25-10-88, he was also working in the hospital, where P. W. 3 Major Singh was hospitalised, as a radiologist. On the basis of X-Ray plates Ex. P-12 and Ex. P-13 he prepared the X-Ray report Ex. P-14 and found left parietal bone was broken from two places. The aforesaid injuries found on the person of P. W. 3 Major Singh cannot said to be self inflicted. ( 17 ) WE have carefully examined the deposition of P. W. 3, Major Singh and found that he has deposed before the learned Addl. Distt. and Sessions Judge that he knew the accused appellant before the date of occurrence. He had also deposed that before occurrence, he used to visit the house of accused appellant which was situated adjacent to his house intervening with one house of another person. The accused appellant himself had admitted in his statement under Section 313 Cr. P. C. that he had no enmity either with the deceased Jaspal Singh or with P. W. 3 Major Singh. The learned Judge while taking on record the deposition of Major Singh has asked certain questions to him and on the basis of the answers that were given he found him competent person to depose about it. He stated that he has three brothers. The eldest one is Balvinder Singh next to him was Jaspal Singh and he is the youngest. He stated that he and Jaspal Singh came from the school on that day at 4 pm to their house, their father and mother were there in the house and their mother prepared tea for them and after taking tea his father and mother went to work some where else. He was sitting on mudda outside the Kotha and his brother Jaspal Singh was sitting on the ground of the Kotha. Thereafter, pointing towards the accused he stated that he came there because they were having visiting terms. He was sitting on mudda outside the Kotha and his brother Jaspal Singh was sitting on the ground of the Kotha. Thereafter, pointing towards the accused he stated that he came there because they were having visiting terms. As soon as he entered the house he took out money from the money box where the money is lying in a purse. That purse was also taken by him and after taking out the money he inflicted 4 or 5 blows with hammer to his brother Jaspal Singh and also inflicted one injury with knife on the neck of Jaspal Singh. He was seeing all this while standing on the gate of his Kotha. Then it has been alleged by him that accused inflicted 4 or 5 blows to him also and inflicted knife blow on his neck, by the hammer blows he felt unconscious and regained consciousness after about 8 or 9 days. He was a student of Shanti Niketan School and he has no enmity with the accused and he has given careful description about how the accused had acted after he came to their house so far as taking out of money is concerned and that event was witnessed by him and the accused wanted to furnish the evidence so that they may not inform their parents and accordingly tried to kill them, he however, was saved by the grace of God. There is no reason why the child of about 10 to 12 years will falsely implicate the accused in this case like murder, and therefore, we are convinced that there is no infirmity in the evidence of child witness P. W. 3 Major Singh and it is absolutely reliable. He is capable to understand the test of cross-examination very firmly and categorically stated that it was this very accused who has killed his brother and has injured him. He was cross-examined with his statement Ex. D-1 and dying declaration recorded by Magistrate, whereto, he has stated that the accused was armed with hammer and knife and he has inflicted these injuries to his brother and himself with this hammer and knife. This testimony is fully supported by the Dr. He was cross-examined with his statement Ex. D-1 and dying declaration recorded by Magistrate, whereto, he has stated that the accused was armed with hammer and knife and he has inflicted these injuries to his brother and himself with this hammer and knife. This testimony is fully supported by the Dr. K. N. Markendey who found two sharp weapon injuries and 4-5 blunt weapon injuries on the person of the deceased Jaspal Singh and likewise 4-5 injuries with blunt weapon and one sharp weapon injury on the neck of Major Singh. According to the Dr. K. N. Markendey all these injuries of Jaspal Singh were ante-mortem and they were sufficient in ordinary course of nature to cause his death, whereas, injuries of Major Singh were held to be extremely grevious to cause death and if quick medical aid was not made available to him they would have proved fatal, under these circumstances, we are inclined to accept the testimony of Major Singh which is totally reliable. The decisions cited by the learned counsel for the appellant in support of his aforesaid contention by three different Division Benches of this Court in case of Ram Singh, (Supra) in case of Jetha Ram, (Supra) and in case of Dula (Supra) are distinguishable on facts and its ratio decidendi and are not attracted in the present facts of the case. Looking into the present facts of the case in our considered opinion the flawless deposition of child witness P. W. 3 Major Singh is absolutely truthful and unpolluted from external influences, therefore, it deserves to be given the highest credibility and the learned Addl. Distt. and Sessions Judge has committed no error in appreciating the testimonial value of child witness P. W. 3 Major Singh in convicting the accused appellant. ( 18 ) THE second submission of the learned counsel for the appellant raised before us is that the learned Addl. Distt. and Sessions Judge has committed an error on placing reliance on the fact of abscondance of the accused appellant while there is no such evidence on record. Learned counsel in this connection submitted that even if it is assumed for arguments sake that the accused appellant was absconding just after the occurrence then it should not be presumed that it was he who had committed the offence. Learned counsel in this connection submitted that even if it is assumed for arguments sake that the accused appellant was absconding just after the occurrence then it should not be presumed that it was he who had committed the offence. According to the learned counsel for the appellant there may be many other reasons of his absconding. A careful perusal of the evidence on record throws flood of light that immediately after the occurrence the accused appellant had absconded and evidence was recorded by the Investigating Officer in his absence under Sec. 299, Cr. P. C. It is borne out on the material available on record that challan was submitted to the Magistrate under Section 299 Cr. P. C. who committed the case for trial to the court of learned Distt. and Session Judge, Sriganganagar and when the accused was arrested then the sessions trial was transferred for disposal according to law to the learned Addl. Distt. and Sessions Judge who had recorded the finding of guilt against the accused appellant. In support of the aforesaid facts of the case the deposition of P. W. 9 Sugna Ram is also available on record which further throws a flood of light that immediately after the occurrence the accused had absconded, therefore, the investigation was done by the Investigating Officer under Sec. 299, Cr. P. C. A perusal of the statement of accused appellant under Sec. 313, Cr. P. C. reveals that the circumstances of his absconding was put to him in his statement under Sec. 313, Cr. P. C. but instead of giving a satisfactory explanation he denied that he had absconded and according to him a false challan has been submitted against him. We have examined the deposition of P. W. 9 Sugna Ram and from his deposition we are satisfied that immediately after the occurrence the accused had absconded, therefore, the investigation was done in his absence and challan was submitted by investigating agency under Sec. 299, Cr. P. C. It is incorrect to say that there is no material evidence on record that immediately after the occurrence the accused appellant has not absconded. ( 19 ) IT is well to remember that circumstance of absconding if proved it does give credence to the prosecution story provided the circumstances of absconding was put to the accused in his statement under Sec. 313, Cr. ( 19 ) IT is well to remember that circumstance of absconding if proved it does give credence to the prosecution story provided the circumstances of absconding was put to the accused in his statement under Sec. 313, Cr. P. C. In the instant case circumstance of absconding has been put to the accused under Sec. 3 13, Cr. P. C. but the accused has not given any satisfactory explanation about his absconding. ( 20 ) A close scrutiny of the Judgment of learned Addl. Distt. and Sessions Judge leads towards an irresistible conclusion that it is based on analytical discussion of the oral and documentary evidence on record. The finding guilt recorded by learned Addl. Distt and Sessions Judge is based on cogent and convincing reasons. Thus, we agree with the finding of guilt recorded by learned Addl. Distt. and Sessions Judge, No. 2, Sriganganagar against the accused appellant. We are in full agreement with the appreciation of oral and documentary evidence done by learned Addl. Distt. and Sessions Judge. We are of considered opinion that the prosecution in the instant case has successfully proved the guilt of accused appellant beyond all shadow of reasonable doubt as regards the murder of Jaspal Singh and causing deadly injuries to Major Singh. The clinching evidence adduced by prosecution throws a flood of light that it was the accused who had committed brutal murder of deceased Jaspal Singh and the injuries caused by him to deceased Jaspal Singh according to deposition of P. W. 6 were sufficient in ordinary course of nature to cause death of deceased Jaspal Singh. A close scrutiny of Ex. P-10, Post mortem report of Jaspal Singh conducted by P. W. 6, Dr. K. N. Markendey reveals that deceased Jaspal Singh has received 7 injuries :- 1. Incised wound : 2 1/2" x 1" x Trac head deep (upto post wall) lower part of thyirod cut. 2. Lacerated wound : 1/4" x 1/3" x irregular x Bone deep on Rt. side forehead. 3. Lacerated wound : 1/4"x 1/3" on left side fore head (bone deep ). 4. Lacerated wound : 1/2" x 1/3" x Bone deep on left parietal region near occupital parietal Section. 5. Swelling : Irregular 3" x 2" on left parietal altemporal region. 6. Incised wound : 1/4" x 1/6" muscles deep on left thigh 5" above knee joint. 7. Lacerated wound : 1/4"x 1/3" on left side fore head (bone deep ). 4. Lacerated wound : 1/2" x 1/3" x Bone deep on left parietal region near occupital parietal Section. 5. Swelling : Irregular 3" x 2" on left parietal altemporal region. 6. Incised wound : 1/4" x 1/6" muscles deep on left thigh 5" above knee joint. 7. Abrasion (2) 1 1/2"x liner on Rt. thigh just above knee joint. ( 21 ) WE have also examined the deposition of P. W. 6, Dr. K. N. Markandey, Medical Jurist who conducted the Post Mortem of deceased Jaspal Singh and had prepared Post Mortem report Ex. P-10. According to the deposition of P. W. 6, Medical Jurist Dr. K. N. Markandey injury Nos. 1 and 6 found on the person of deceased were caused by sharp edged weapon while the rest of the injuries found on his dead body were caused by blunt weapon. According to the Medical Jurist all these injuries were caused to the deceased before his death. Injury No. 1 was sufficient to cause death of the deceased Jaspal Singh in ordinary course of nature. According to the opinion of Medical Jurist, P. W. 6 the deceased Jaspal Singh died due to shock and haemorrhage. ( 22 ) NOW we propose to examine the merit of last submission made by the learned counsel for the appellant that in the present case while imposing extreme penalty of death the learned Addl. Distt. and Sessions Judge has ignored the mitigating circumstances in favour of the accused appellant. Learned counsel for the appellant submitted that the appellant was an unmarried young man of 18 or 19 years and there was no special reason to award the sentence of death on him. Learned counsel further submitted that keeping in view the legislative policy of Sub-Section 2 of Sec. 235 read with Sub-Section 3 of Sec. 354, Cr. P. C. this court may have a choice of not imposing the extreme penalty of death on the accused appellant and give him a chance to become reformed member of the society in keeping with the concern the courts should have for the dignity for human life. Regarding the age of the accused appellant a Division Bench consisting of Honble Sh. B. R. Arora and Honble Sh. Regarding the age of the accused appellant a Division Bench consisting of Honble Sh. B. R. Arora and Honble Sh. N. K. Jain passed an order on 25-2-93 to the effect that in order to decide the present murder reference as well as the appeal filed by the appellant it is necessary to get the report of the Medical Board regarding the age of the accused Jasu alias Jaswant Singh who is lodged in Central Jail, Jaipur. On the aforesaid date the aforesaid Division Bench directed the Principal cum Superintendent of S. M. S. Medical College, Jaipur to appoint a Board to examine the accused Jasu alias Jaswant Singh regarding his age. The Superintendent Central Jail, Jaipur was directed to contact the Principal cum Superintendent S. M. S. Medical College, Jaipur for fixing the date for examination of the accused and was further directed to produce the accused before the Board on the date fixed by the Principal. A copy of the aforesaid order dated 25-2-93 was sent to the Principal cum Superintendent S. M. S. Medical College, Jaipur as well as to the Superintendent Central Jail, Jaipur. ( 23 ) IN compliance of the aforesaid order dt. 25-2-93 the Principal cum Superintendent S. M. Medical College, Jaipur constituted the Board to examine the accused appellant regarding his age. The accused appellant was produced by the Superintendent Central Jail, Jaipur for examination. After reviewing the clinical examination report and radiological finding the members of the Board found the age of the accused appellant 25 years to 35 years on 16-3-1993. The opinion expressed by the Board on 18-4-1993 is available on record. From the mathematical calculation, on the date of occurrence the age of the accused would be roughly in between 20 years to 30 years. Keeping in view the age of the accused appellant on the date of occurrence now we propose to reproduce the new provision of Section 235 corresponding to Section 309 of the old Criminal procedure Code in a revised form with the addition to new provision in Sub-Section 2 namely : "hear the accused on the question of sentence" : "235 (1) After hearing arguments and points of law (if any), the Judge shall give a Judgment in the case. (2) If the accused is convicted, the Judge shall unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. " ( 24 ) FROM the perusal of Sub-Section 2 of Section 235 in our humble opinion the imperative of Sub-Section 2 leaves no room for doubt that after recording the finding of guilt and the order of conviction the Court is under an obligation to hear the accused on the question of sentence unless it released him on probation of good conduct under Section 360, Cr. P. C. Thus, the right to be heard on the question of sentence is a beneficial provision for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court. There was no such provision in the old Code of Criminal Procedure Code and under old criminal procedure whatever the accused wished to submit in relation to sentence had to be stated by him before the arguments in the case were concluded and the judgment was delivered. The accused under the old Code had to produce the material and make hi s submissions in relation to sentence on the assumption that he was ultimately going to be convicted and as this was probably not proper, therefore, the Legislature introduced the new provisions in the new Code. ( 25 ) FROM the aforesaid discussion it is easily deducible that the hearing as contemplated by Sub-Section 2 of Sec. 235 is not confined merely to hearing oral submission but is intended to give an opportunity to the prosecution and accused to place before the Court facts and materials relating to various factors bearing on the sentence. This provision is mandatory and deviation from it cannot be described as a mere irregularity in the course of trial. It goes to the root of the matter and the resulting irregularity is of such character that it vitiates the sentence. ( 26 ) A close scrutiny of the Judgment of learned Addl. Distt. and Sessions Judge Dt. 18-8-92 reveals that learned Addl. Distt. It goes to the root of the matter and the resulting irregularity is of such character that it vitiates the sentence. ( 26 ) A close scrutiny of the Judgment of learned Addl. Distt. and Sessions Judge Dt. 18-8-92 reveals that learned Addl. Distt. and Sessions Judge has recorded the finding of guilt against the accused appellant and he has afforded an opportunity to the accused appellant as well as to learned Public Prosecutor appearing on behalf of the State to place before him material on the question of sentence and the case was adjourned on 19-8-92 for hearing the parties on question of sentence. Thus, it is apparent from the original record of the learned Addl. Distt. and Sessions Judge that he postponed the proceedings after passing the order of conviction and has given an opportunity to the accused appellant to produce evidence and circumstances which may lead the Court to pass a lesser sentence in compliance of Sub-Section 2 of Section 235, Cr. P. C. The learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar called upon the Public Prosecutor on the adjourned date of hearing to state to the Court whether the case is one where the accused, to serve the ends of justice, should be awarded extreme penalty of death or the lesser sentence of imprisonment for life. When the Public Prosecutor was called upon to state before the learned Addl. Distt. and Sessions Judge he informed the Court that the State as a prosecutor is of the opinion that the case is one where the extreme penalty is called for. Therefore, learned public prosecutor stated before the learned Addl. Distt. and Sessions Judge that the case calls for extreme penalty prescribed by law and he gave reasons in support of extreme penalty. Thus, after considering the rival submissions on the question of sentence the learned Addl. Distt. and Sessions Judge, No. 2, Sriganganagar has imposed the extreme penalty of death on the accused appellant under Section 302, I. P. C. In our considered opinion in the present case there is substantial compliance of Sub-Section 2 of Sec. 235, Cr. P. C. and a contention contrary to it made before us by the learned counsel for the appellant is not acceptable to us. P. C. and a contention contrary to it made before us by the learned counsel for the appellant is not acceptable to us. ( 27 ) NOW we propose to pass on to the second limb of the argument of the learned counsel for the appellant which is based in Sub-Section 3 of S. 354 Cr. P. C. , which is also reproduced below :-"354 (1 ). . . . (a) to (d ). . . . (2 ). . . . . . . . (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) to (6 ). . . . ( 28 ) THE aforesaid two mandatory provisions i. e. Sub-Section 2 of Section 235 and Sub-Section 3 of Section 354 came up for consideration before their Lordships of the Supreme Court in case of Rajendra Prasad v. State of U. P. , reported in AIR 1979 SC 916 . The majority view in aforesaid decision is given in detail in paragraph 82 of the aforesaid Judgment giving the condensed guidelines in which categories of cases extreme penalty of death sentence should be awarded. In order to appreciate the contention raised by learned counsel for the accused appellant it would be relevant to produce paragraph 82 of the case of Rajendra Prasad (Supra) in extenso :-"82. We may summarise our conclusions to facilitate easier application and to inject scientific formulation. 1. The criminal law of the Raj. vintage has lost some of its vitality, notwithstanding its formal persistence in print in the Penal Code so far as S. 302, I. P. C. is concerned. In the post-Constitution period S. 302, I. P. C. and S. 345 (3) of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV further illumined by the Preamble to the constitution. In Sunil Batra, (1978) 4 SCC 494 at pp. In the post-Constitution period S. 302, I. P. C. and S. 345 (3) of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV further illumined by the Preamble to the constitution. In Sunil Batra, (1978) 4 SCC 494 at pp. 569 and 572, a Constitution Bench of this Court has observed : "consciously and deliberately we must focus our attention, while examining the challenge, to on fundamental fact that we are required to examine the validity of a re-constitution statute in the context of the modern reformist theory of punishment, jail being treated as a correctional institution. " "cases are not unknown where merely on account of a long lapse of time the Court have commuted the sentence of death to one of life imprisonment on the sole ground that the prisoner was for a long time hovering under the tormenting effect of the shadow of death. " "the scheme of the Code, read in the light of the Constitution, (eaves no room for doubt that reformation, not retribution, is the sentencing lodestar. " (emphasis added)2. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. 3. The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is paramount principle and cultural parading of our Constitution. 4. The personal and social, the motivational and physical circumstances, of the criminal are relevant factors in adjudging the penalty as clearly provided for under the new Code of 1973. So also the intense suffering already endured by prison torture or agonising death penalty hanging over head consequent on the legal process. 5. Although the some what obsolescent M. Naughten Rules codified in Section 84 of the Penal Code alone are exculpatory, mental imbalances, neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incarceration. 6. Social Justice, projected by Art. 38, colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14. This complex of articles validates death penalty in a limited class of cases as explained above. 6. Social Justice, projected by Art. 38, colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14. This complex of articles validates death penalty in a limited class of cases as explained above. May be, train dacoity and bank robbery bandits, reaching menacing proportions, economic offenders profit-killing in an intentional and organised way, are such categories in a Third World setting. Apart from various considerations which may weigh with the Court, one consideration which may be relevant in given circumstances, is the planned motivation that goaded the accused to commit the crime. Largely in India death is caused not by a cool, calculated, professionally cold blooded planning but something that happened on the spur of the moment. In fact in faction-ridden society factions come to grip on a minor provocation and a gruesome tragedy occurs. But with the development of the complex industrial society there has come into existence a class of murderers who indulge in a nefarious activity solely for personal, monetary or property gain. These white-collar criminals in appropriate cases do deserve capital punishment as the law now stands, both as deterrent and as putting an end to an active mind indulging in incurable nefarious activities. It is such characteristics that determine more or less the gravity and the character of the offence and offender. We may venture that sometimes there is big money in the subtle "murder" business disguised as economic offences or industrial clashes; and there social justice in certain circumstances punctures soft justice and opts for lethal sentence. Where intractable mafia shows up in murderous profusion, the sentence of death must, reluctantly though, defend society. 7. The survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to perform their functions even in the fact of threat of violence sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence. 8. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence. 8. When an environmental technologist, food and drug chemist or engine manufacturer intentionally acts in the process, abetted by the top decision makers, in the corporation concerned, in such manner that the consumer will in all probability die but is kept wilfully in the dark about the deadly consequence by glittering advertisement or suppressioveri, he deserves death penalty for societys survival, if he fulfils the elements of murder. May be, a redefinition of murder may be needed to make this legal mandate viable. Parliamentarians and judicial personnel may benefit by the observations made by Ralph Nader on American Law-in-action (21) : -"in no clearer fashion has the corporation held the law at bay than in the latters paralysis towards the corporate crime wave. Crime statistics almost wholly ignore corporate or business crime; there is list of the ten most wanted corporations; the law affords no means of regularly collecting data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition. For example, wilful and knowing violations of auto tire, radiation and gas pipe-line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result. The description of an array of corporate crimes in this forth right book reveals a legal process requiring courage, not routine duty, by officials to enforce the laws against such outrages. The law is much more comfortable sentencing a telephone coin box thief to five years than sentencing a billion-dollar price fixing executive to six weeks in jail. In our recounting after another, the authors pile up the evidence toward one searing conclusion -- that corporate economic, product, and environmental crimes dwarf other crimes in damage to health, safety and property, in confiscation or theft of other peoples monies, and in control of the agencies which are supposed to stop this crime and fraud. And it all, goes on year, after year by bluechip corporate recidivists. Why ? It is easy to answer "power". But that is the beginning, not the end, of understanding. " 9. And it all, goes on year, after year by bluechip corporate recidivists. Why ? It is easy to answer "power". But that is the beginning, not the end, of understanding. " 9. special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking that other murders and yet the callous criminal e. g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependant on the totality of circumstances. 10. We must always have the brooding thought that there is a divinity in every man and that none is beyond redemption. But death peanlty, still on our Code, is the last step in a narrow category where, within a reasonable spell, the murderer is not likely to be cured and tends to murder others, even within the prison or immediately on release, if left alive a king cobra which, by chronic habit, knows only to sting to death unless defanged if possible. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being. The extreme penalty can be invoked only in extreme situations. " ( 29 ) IN reply to the aforesaid contentions advanced before us on the question of sentence by the learned counsel for the appellant, the learned Public Prosecutor Shri. D. R. Bohra assisted by Shri U. S. Bhargava, learned counsel for the complainant placed before us the case of Dhanan Joy Chatterji, (Supra) in support of their contention that in the present case since the accused appellant has committed brutal murder of deceased Jaspal Singh and in order to eliminate the evidence of his murder and theft he had committed murderous assault. on P. W. 3. on P. W. 3. Major Singh, therefore, the extreme penalty of death awarded by learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar is enimently just and proper. ( 30 ) WE have given our thoughtful consideration to the aforesaid rival contentions raised on behalf of the counsel for the appellant as well as the learned counsel for the State assisted by the learned counsel for the complainant and we have gone through the ratio of decisions cited in support of the aforesaid contentions. In our considered opinion the aforesaid case cited on behalf of the State and complainant are not attracted in the present case. The facts and circumstances of the case of Dhananjoy Chatterji, (Supra) are distinguishable on facts of the present case. ( 31 ) IT has been brought to our notice by the learned counsel for the accused appellant that at the time of occurrence the accused appellant was not of mature age. The learned counsel for the appellant has invited out attention to the discussion made by the learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar in his Judgment given by him at the time of hearing on the question of sentence that the accused appellant was unmarried on the date of occurrence and he had his old mother and father and had also a younger brother and in case he is sentenced to death the old parents and his younger brother will be indirectly punished. ( 32 ) APPLYING the test for imposing extreme penalty of death laid down by their Lordships of the Supreme Court in Rajendra Prasads case (Supra) in our considered opinion the accused appellant has not committed any crime against the society although his commission of offence is brutal. Nothing has been brought to our notice that accused appellant is a member of an organised mafia or is an habitual offender. The accused appellant admittedly belongs to a very poor family of a labour class. In our humble opinion he is entitled to be given an opportunity to become a reformed member of society in keeping with the concern for the dignity of human life which is basic concept of our Indian culture. With the passage of time deterrent theory of punishment in civilized society is loosing its importance and reformative theory is getting universal acceptance. With the passage of time deterrent theory of punishment in civilized society is loosing its importance and reformative theory is getting universal acceptance. ( 33 ) HAVING regard to the ratio decidendi of the case of Rajendra Prasad (Supra) and also having regard to the special circumstances of this case we do not think that this is a fit case in which the extreme penalty of death is called for. While we agree with the Judgment of the learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar that this was a case of brutal murder and also causing grevious hurt on vital part of the body of P. W. 3 Major Singh who was 7 years old on the date of occurrence which falls within the definition of attempt to murder under Section 307, I. P. C. Having regard to the facts mentioned in preceding paragraphs of our Judgment we would commute the sentence of death to that of imprisonment for life so far as offence under Sec. 302, I. P. C. is concerned. The appeal is accordingly allowed to this extent only, and, the reference for confirmation of death sentence is hereby modified to that of imprisonment for life. The conviction and sentence awarded by Learned Addl. Distt. and Sessions Judge under Section 307 I. P. C. is maintained in toto. ( 34 ) AS regards sentences passed by learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar under Sections 397 and 450, I. P. C. are concerned we are of the opinion that prosecution has failed to prove aforesaid offences against the accused appellant. There is no evidence on record whatsoever that accused appellant entered in the house of P. W. 1 for committing robbery or dacoity and he has committed murder of Jaspal Singh and has made murderous assault on P. W. 3 during the course of committing robbery or dacoity or committed aforesaid offences while attempting to commit robbery or dacoity. The deposition of P. W. 3 Major Singh indicates that accused appellant committed house trespass for committing theft which is punishable under Section 380, I. P. C. with imprisonment of either description for a term which may extend to seven years and shall also be liable for fine. Thus, in our humble opinion no offence under Section 397, I. P. C. is made out in the present case. Thus, in our humble opinion no offence under Section 397, I. P. C. is made out in the present case. According to the mandatory provisions contained under Section 450, I. P. C. it is necessary to prove that the accused appellant committed the house trespass of P. W. 1, Shri Ganga Singh in order to commit any offence punishable with imprisonment for life but in the present case the accused, according to the evidence available on record committed trespass of a dwelling house of P. W. 1 with intent to commit theft punishable with imprisonment for a term which may extend up to seven years and also be liable to fine. In view of aforesaid facts and circumstances no offence under Section 450, I. P. C. is made out against the accused appellant and at the most he can be punished for committing house trespass of dwelling house of P. W. 1 with intent to commit theft which is punishable under Section 380, I. P. C. and when he was detected by the deceased Jaspal Singh and his younger brother P. W. 3, Major Singh he committed murder of Jaspal Singh and attempted to commit murder of P. W. 3, Major Singh by causing murderous assault on him, therefore, in present case we propose to punish the accused appellant under Section 380 I. P. C. with rigorous imprisonment of 5 years and a fine of Rs. 200. 00 and in default of payment of fine to further under go one months rigorous imprisonment and the sentences passed by learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar under Sections 397 and 450, I. P. C. are hereby set aside. ( 35 ) AS a result of aforementioned discussion while we agree with the learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar that this was a case of brutal murder, having regard to the facts mentioned above we commute the sentence of death to that of imprisonment for life under Section 302, I. P. C. and decide the reference made by him accordingly. The appeal filed by the accused appellant is partly allowed to this extent only so far as offence under Section 302, I. P. C. is concerned and the reference for confirmation of death sentence is hereby modified to that of imprisonment for life. The order of conviction and sentences passed by the learned Addl. Distt. The appeal filed by the accused appellant is partly allowed to this extent only so far as offence under Section 302, I. P. C. is concerned and the reference for confirmation of death sentence is hereby modified to that of imprisonment for life. The order of conviction and sentences passed by the learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar against the accused appellant for attempting to commit murder of P. W. 3, Major Singh under Section 307 I. P. C. is hereby maintained in toto. The sentences passed by learned Addl. Distt. and Sessions Judge No. 2, Sriganganagar under Sections 397 and 450 I. P. C. are hereby set aside and he is accordingly acquitted of the aforesaid offences. However, the accused appellant is held guilty of the offence under Section 380, I. P. C. and for the aforesaid offence he is sentenced to a term of 5 years rigorous imprisonment and a fine of Rs. 200. 00 and in default of payment of fine he has to further undergo one months rigorous imprisonment. All the aforesaid substantive sentences will run concurrently. Order accordingly.