Judgment SHIV KUMAR SHARMA, J. ( 1 ) THIS case reveals a shameless incident that occurred sometime on October 30, 2003 in which the alleged sexual assault and murder is said to have been committed by the appellant herein, with victim Priyanka, a girl of the tender age of about 7 years, who fell a prey to his lust. Learned Judge, Special Court scheduled Caste and Scheduled Tribe (Prevention of Atrocities Cases), Kota relying on the circumstantial evidence convicted the appellant vide judgment dated September 28, 2005 for the offences under Sections 302, 376 and 201, IPC and having regard to the peculiar facts and circumstances of the case found it to be rarest of rare cases and, therefore, sentenced him thus :-U/s. 302, IPC sentence of death and fine of Rs. 500/-, in default to suffer one month impnsonment u/s. 376, IPC : to suffer life imprisonment and fine of rs. 500/-, in default to further suffer one month simple imprisonment u/s. 201, IPC : to suffer rigorous imprisonment of seven years and fine of Rs. 500/-, in default to further suffer one month simple imprisonment. ( 2 ) THE learned Judge, Special Court scheduled Caste and Scheduled Tribe (Prevention of Atrocities Cases), Kota made a reference (bearing Death Reference No 3/2005)under Section 366, Cr. P. C for confirmation of death sentence. The appellant rajendra Singh alias Hem Singh also preferred appeal challenging his conviction and sentence as aforesaid. We straightway proceed in accordance with Sections 366 and 368, Cr. P C to examine the entire evidence independently. ( 3 ) THE brief facts as unraveled by the prosecution at the trial are as follows :-On October 30, 2003 at about 3. 10 p. m smt. Ram Vilas lodged a written report (Ex p-24a) of police station Vigyan Nagar, Kota to the effect that her daughter Priyanka aged 7 years who was playing outside of the house did not come back and despite vigorous search she could not be found. Bhagwan sahai, ASI registered the report and directed police squad to search Priyanka. Prior to it at 3 p. m. on the said day some unknown person telephonically informed Police station Vigyan Nagar that a girl had fallen into a well near Hanuman temple of Sanjay nagar. This information was entered in rojnamcha (Ex P-23a) by Chhagan Singh asi. Bhagwan sahai, ASI registered the report and directed police squad to search Priyanka. Prior to it at 3 p. m. on the said day some unknown person telephonically informed Police station Vigyan Nagar that a girl had fallen into a well near Hanuman temple of Sanjay nagar. This information was entered in rojnamcha (Ex P-23a) by Chhagan Singh asi. The police with the help of Municipal corporation thereafter searched the well but the girl was not found and report to this effect (Ex. P-25a) was entered in Rojnamcha at 9. 30 p. m on October 30, 2003. The Police station Vigyan Nagar on November 1, 2003 at 9. 30 a. m. received telephonic message of Parmanand Meena (father of priyanka) that from the locked room of his tenant Rajendra foul smell was spreading this information was entered into rojnamcha (Ex. P26a) and Bhagwan Sahai asi along with police squad reached to the house of Parmanand Meena Tenanted room of Rajendra was broke open and searched. Inside the room dead body of Priyanka was found lying in a green plastic bucket covered with a jute bag. Parmanand Meena at this juncture handed over a written report (Ex P-16) to Bhagwan Sahai ASI. Case under Sections 302 and 376, IPC was registered against Rajendra Singh alias Hem singh and investigation commenced. On completion of investigation charge-sheet was filed and in due course the case came up for trial before the learned Judge, Special court Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Cases), Kota charges under Sections 376, 302, 201, IPC and Section 3 (2) (5), Scheduled Caste and scheduled Tribe (Prevention of Atrocities)Act were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 22 witnesses In the explanation under section 313, Cr P C. , the appellant claimed innocence No evidence in defence was however examined. Learned trial Judge on hearing final submissions decided the case as indicated hereinabove ( 4 ) AS per post-mortem report (Ex. P-2), following ante-mortem injuries were found on the dead body of Priyanka :- (1) Lacerated wound 5 x 1 cm x muscle deep on permeal region at lower part of va gina. Hymen torn. Hematoma present (2) Abrasion 1 x 1cm Rt. Cheek Lt. side of eye (3) Lacerated wound 1 x 1/2 cm x skin deep on Lt. P-2), following ante-mortem injuries were found on the dead body of Priyanka :- (1) Lacerated wound 5 x 1 cm x muscle deep on permeal region at lower part of va gina. Hymen torn. Hematoma present (2) Abrasion 1 x 1cm Rt. Cheek Lt. side of eye (3) Lacerated wound 1 x 1/2 cm x skin deep on Lt. eyebrow (4) Multiple abrasions 14x14 cm (multiple)on upper and lower lips and around nostrils. In the opinion of Dr. Ashok Moondra (P W. 2) the cause of death was due to asphyxia as a result of suffocation and pressure over mouth and blockage of respiration with possibility of sexual intercourse ( 5 ) THE appellant was examined on december 13, 2003 vide Ex. P-1 and it was detected that he was capable of performing sexual intercourse. ( 6 ) THERE is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. Learned counsel for the appellant contended before us that the circumstances relied on by the prosecution have not been satisfactorily established and that in any event the circumstances said to establish against the appellant do not provide a complete chain to bring home the guilt against the appellant. Learned counsel vehemently canvassed that the prosecution has failed to establish that the room from where the dead body of priyanka got recovered was in the exclusive possession of the appellant. Lock of the room, which according to Bhagwan Sahai, asi was broke open by iron rod was not seized and sealed There are matenal contradictions in the stalements of prosecution witnesses about opening of the room. Learned counsel further urged that Mukesh was the tenant in the house of Parmanand meena and he was missing in suspicious circumstances. There are circumstances that indicate that Mukesh could have committed the offence but the police did not investigate the matter fairly and the appellant has been convicted and sentenced on the basis of suspicion alone. Reliance is placed on akhilesh Hajam v. State of Bihar (1995)Supp. (3) SCC 357; Anant Bhujangrao kulkarm v. State of Maharashtra (1993)Supp. (2) SCC 267 : (1992 Cri LJ 4027); State of Rajasthan v. Raja Ram (2003) 8 SCC 180 : (2003 Cri LJ 3901) and Tarseem Kumar v. Delhi Administration (1994) Supp (3) SCC 367 : (1995 Cn LJ 470 ). (3) SCC 357; Anant Bhujangrao kulkarm v. State of Maharashtra (1993)Supp. (2) SCC 267 : (1992 Cri LJ 4027); State of Rajasthan v. Raja Ram (2003) 8 SCC 180 : (2003 Cri LJ 3901) and Tarseem Kumar v. Delhi Administration (1994) Supp (3) SCC 367 : (1995 Cn LJ 470 ). ( 7 ) PER contra, learned Public Prosecutor supported the impugned judgment and urged that it is established by the prosecution beyond reasonable doubt that the appellant was tenant in the house of parmanand Meena and the dead body of priyankna was found in the room which was in exclusive possession of the appellant. It is further contended that after Priyanka disappeared, the appellant misled the parents of Priyanka and the neighbours by spreading rumor that she had fallen into a well. The circumstances, therefore, have conclusively established that it was the appellant who committed the offence. ( 8 ) THE standard of proof required to con vict a person on circumstantial evidence is now well established by a series of decision of the Honble Supreme Court According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence fur nished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. ( 9 ) BEARING these guidelines in mind we shall now examine the various circumstances said to be appearing against the appellant and at the same time consider the contentions advanced by the learned counsel for the appellant referred to above. ( 9 ) BEARING these guidelines in mind we shall now examine the various circumstances said to be appearing against the appellant and at the same time consider the contentions advanced by the learned counsel for the appellant referred to above. RECOVERY OF DEAD BODY FROM tenanted ROOM OF APPELLANT : ( 10 ) IT is the prosecution case that the appellant was the tenant of Parmanand meena and dead body of Priyanka was re covered from the tenanted room of appellant which he locked after the incident and disappeared. Smt Ram Was (P W. 4) (mother of Pnyanka) in her deposition stated that after Pnyanka disappeared she immediately lodged the report with the Police Station vigyan Nagar. After two days when foul smell started spreading from the locked room of appellant, the police was informed. Lock of the room was broke open by the police and dead body of Priyanka was found inside the room. Parmanand Meena (P. W. 5) (father of priyanka) deposed that at the time of incident Shambhu, Mukesh and Rajendra alias hemraj (appellant) were residing in the ground floor of his house. Pnyanka, his missing daughter was vigorously searched but could not be found After two days foul smell came from the locked room of the ap pellant, police was called and lock of the room of appellant got broke open and dead body of Pnyanka was found inside the room. Both these witnesses were cross-examined and by asking the questions attempt was made to establish that on the date of incident appellant had already vacated the room and some other tenant occupied the said room. The witnesses categoncally denied the question and firmly deposed that appellant was their tenant and the room from where dead body of Pnyanka was found, was in the exclusive possession of the appellant and just a day before recovery of dead body the appellant had locked the room and fled away. Bhagwan Sahai, ASI (P. W. 15) sup ported the testimony of Smt. Ram Vilas and parmanand Meena. Bhagwan Sahai, ASI (P. W. 15) sup ported the testimony of Smt. Ram Vilas and parmanand Meena. In his Seposition bhagwan Sahai stated that on receiving telephonic information that foul smell was spreading from the room of appellant, he after entering the report in Rojnamcha, rushed with the police squad to the spot, borke open the lock of the room of appellant with iron rod and recovered the dead body of Pnyanka lying in plastic bucket covered with jute-bag. Suresh Gujar (P. W. 10), who was Ward Member, deposed that lock of the room of appellant was broke open by the police in his presence and dead body of pnyanka was found inside the room lying in carrot covered with jute-bag. Suresh gujar also stated that on October 30, 2003 when he had gone to the house of parmanand Meena to enquire about his missing girl he saw the appellant going out after locking his room. Although the defence of the appellant before the trial Court was that he had vacated the room and some other tenant occupied it, in the statement under Section 313, Cr. P. C. the appellant did not claim that the had left the tenanted room prior to the incident. Madras High court in Shummugasunderam v. State (1997 Cri L J 499 (DB)) observed that "if some occurrence happens inside the residential portion of the accused wherein he was also available, at or about the time of the incident, he is bound to offer his version as to how the incident had taken place. The only other person who can speak about the incident will be the deceased and now that she is dead, if at all, the accused and the accused alone can offer an explanation section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him It is true that this section cannot be used so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the present case, there is satisfactory evidence, which fasten or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time so, in the absence of any other explanation, the only possible inference is that the ac cused had participated in the act. However, in the present case, there is satisfactory evidence, which fasten or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time so, in the absence of any other explanation, the only possible inference is that the ac cused had participated in the act. If he claims contrary under Section 106 of the evidence Act, the burden of proving that fact is upon him, since that is within his knowledge. " Their Lordships of the Supreme Court in Deo Nandan v State ( AIR 1955 SC 801 ) (1955 Cri LJ 1647) indicated that Section 106 does not cast any burden upon the accused, but when he throws no light at all upon the facts which ought to be especially within his knowledge and which could support any theory or hypothesis compatible with his innocence, the Court can also consider his failure to adduce any explanation in the instant case the prosecution has established that dead body of Pnyanka was found in the room which was in exclusive possession of appellant and in the absence of any other explanation by the appellant, the only possible inference is that it was the appellant who committed the crime. There is no matenal on record to show that somebody else had put the dead body in the tenanted room of appellant to falsely implicate him. We find no substance in this submission of learned counsel for the appellant. CONDUCT OF THE APPELLANT : ( 11 ) OVER anxiety of appellant in spreading the rumour that Priyanka could fall into well is also established from the record mahendra Kumar Sharma (P W 8) in his deposition stated that on hearing that priyanka was missing, he had gone to the house of Parmanand Meena on October 30, 2003 and found appellant spreading the rumor that the girl had fallen into a well. Statement of Mahendra Kumar Sharma could not be shattered in the cross-examination. Even in the explanation under section 313, Cr. P C. the appellant did not deny the deposition of Mahendra Kumar Sharma it is thus evident that the appellant deliberately misled the parents of Priyanka and other neighbours by spreading false rumor. Statement of Mahendra Kumar Sharma could not be shattered in the cross-examination. Even in the explanation under section 313, Cr. P C. the appellant did not deny the deposition of Mahendra Kumar Sharma it is thus evident that the appellant deliberately misled the parents of Priyanka and other neighbours by spreading false rumor. BEFORE HER DEATH PRIYANKA WAS subjected TO RAPE AND HER DEATH was HOMICIDAL IN NATURE ( 12 ) A look at Post-mortem report (Ex P-2) reveals that there was a lacerated wound measuring 5 x 1 x muscle deep on penneal region at lower part of vagina and hymen was torned. In the opinion of Doctor Ashok moondra (P. W. 2) the cause of death was asphyxia as a result of suffocation and pressure over mouth and blockage of respiration with possibility of sexual intercourse. The prosecution is thus able to establish that priyanka was subjected to rape and her death was homicidal in nature. APPELLANT WAS POTENT AND CAPABLE to PERFORM SEXUAL INTERCOURSE ( 13 ) THE appellant was also subjected to medical examination for potency and vide medical report (Ex. P-1) his penis was found normally developed. No congenital anomaly was seen and secondary sex characters were found well developed. In the opinion of Dr. G S Visnar (P. W. 1) there was nothing to suggest that the appellant was unable to perform sexual intercourse conclusion ( 14 ) FROM the evidence discussed above, it is satisfactorily and conclusively proved that all the links in the chain are complete and the evidence does not suffer from any infirmity. The circumstances, form a com plete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant but on the contrary the same are of exclusive nature consistent only with the hypothesis of the guilt of the appellant and conclusively lead to irresistible conclusion that it was the appellant and he alone had raped and committed murder of the girl priyanka after subjecting her to monstrous sexual assault. ( 15 ) THE case law cited by learned counsel for the appellant in the facts and circumstances of the instant case is of no help to the appellant, Although learned counsel vociferously canvassed that the appellant had been implicated only on the basis of suspicion, we find no merit in the contention ( 16 ) ON an independent appraisal on record we are satisfied that the prosecution has established the charges under Sections 376, 201 and 302, IPC against the appellant beyond reasonable doubt and he was rightly convicted. SENTENCE ( 17 ) THAT takes us to the question of sentence. Section 302, IPC beyond stating that the sentence for murder is either death or imprisonment for life, does not elaborate any further and what are the circumstances under which death sentence or lesser sentence could be imposed. Their Lordships of the Supreme Court in Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ) : (1980 Cn LJ 636) while being reluctant to categorise or list all aggravating circumstances, held that sentence of death must be imposed only in the rarest of rare case. It is now well settled that in exercising its discretion the Court may take into consideration as mitigating, on the basis of which the lesser punishment of imprisonment for life may be imposed :- (i) That the offence was committed under the influence of extreme or emotional disturbance; (ii) If the accused is young or old, he shall not be sentenced to death ; (iii) The probability that the accused would not commit communal acts of violence as would constitute a continuing threat to society, (iv) The probability that the accused can be reformed and rehabilitated; (v) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence, (vi) That the accused acted under the duress of domination of another persons , (vii) that the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct (Emphasis, supplied) ( 18 ) IN Shri Bhagwan v State of rajasthan (2001 Cri L J 2925) five persons of a family were battered to death without mercy by a young culprit aged about 20 years. Their Lordships of the Supreme court, commuted the death sentence imposed upon the accused into sentence of imprisonment of life and indicated that the accused shall not be released from the prison unless he has served out at least 20 years of imprisonment including the period already undergone by him. ( 19 ) IN Reddy Sampath Kumar v. State of ap (2005) 7 SCC 603 (2005 Cri LJ 4131), a greedy son-in-law with the intention of grabbing the property of his father-in-law, committed the death of his father-in-law, mother-in-law and their three minor children. Honble Supreme Court directed that the ends of justice would warrant that the appellant should be in jail in terms of section 57 of the Penal Code and shall not get the benefit of any remission either granted by the State or by the Government of India on any auspicious occasion. ( 20 ) THE act of unparalleled evil and barbarity of the appellant as noticed by us in the instant case, cannot be looked with equanimity. The crime committed by him tends to destroy ones faith in all that is good in life. The appellant on the date of offence was 35 years of age as is evident from his medical examination report (Ex. P-1 ). Therefore, looking to the young age of the appellant, we do not think that this case is to be one of the rarest of rare cases warranting death sentence. Hence, even though we commute the death penalty, yet we are of the view that the punishment should have deterrent effect as well as no further chance to the appellant for relapsing into the crime and becoming danger to the society. Placing reliance on the ratio indicated in Shri bhagwan v. State of Raj as than (2001 Cri LJ 2925) (SC) (supra) we upheld the conviction of the appellant under Section 302, IPC but commute the death sentence imposed upon him and direct that he shall undergo the sentence of imprisonment of life, we further direct that the appellant shall not be released from the prison unless he has served out at least 20 (twenty) years of imprisonment including the period already undergone by him The appellant shall not get the benefit of any remission either granted by the State or by the Government of India on any auspicious occasion. We also confirm the conviction of appellant under Sections 376 and 201, IPC and the sentence so awarded by the learned trial Judge. ( 21 ) THE reference is answered accordingly and with the above directions and modification in the sentence the appeal of the appellant stands disposed of. Order accordingly.