ORDER K. Sreedhar Rao, J The case of the prosecution that one Kushal (deceased), aged about 4 years, a student in St. Lords school, Mathikere. P. W.16 is the father of the deceased. The P. W.19 is the mother of the deceased, who usually used to pick up the child after school hours. On 19.8.1996, P. W.19 had some other work, therefore, requested her son- P. W. 17 to bring the deceased from the school. P.W.17 is a teen-aged boy, forgets the instructions of his mother. P. W.19 returned home and found that the deceased has not come back from the school. Therefore goes to the school to make enquiry, to her dismay finds that all the children had gone home and the deceased was not found in the school but school bag and tiffen box belonging to the deceased was in the class room. P. W.16 and P. W.19 makes intense search in vain to know the whereabouts of the deceased. On the same day in the night at 11.35 p.m. P. W.16 lodged a missing complaint before the Yeshavanthapura police. 2. On 20.8.1996 at 11.00 a.m. P.W.16 gets anonymous call demanding ransom of Rs 4,00,000/- for the safe release of the deceased. After bargain over the phone the caller settles to release the boy on payment of Rs. 1,50,000/-. P. W.16 informs the police about the anonymous call, on the basis of the said information, the FIR is registered at Ex.P.7 for the offence punishable u/s 364-A I.P.C. without the clue of the accused. 3. The P.W.16 receives frequent calls between 20.8.1996 to 22.8.1996 demanding ransom for safe release of the deceased. In one of the calls received on 22.8.1996, the caller tells P. W.16 to come at Tennis Pavilion at Palace Orchard with cash and was instructed not to inform the police. The P. W.16 along with P. W.18 (brother-in-law) goes to the Palace Orchards, the police discreetly accompany P. W.16 and keep watch. The offender sensing the presence of police does not respond, therefore, P. W.16 after waiting for substantial time comes back without meeting the caller. The P. W.16 receives another call on 23.8.1996, the caller tells that because of presence of police he avoided meeting P.W.16, again tells P. W.16 to come with cash of Rs.1,50,000/- to Sankey Tank swimming pool. The offender sensing the presence of police does not respond, therefore, P. W.16 after waiting for substantial time comes back without meeting the caller. The P. W.16 receives another call on 23.8.1996, the caller tells that because of presence of police he avoided meeting P.W.16, again tells P. W.16 to come with cash of Rs.1,50,000/- to Sankey Tank swimming pool. The P. W.16 was told to keep the cash bag and to go away, thereafter the caller would inform P. W.16 regarding the whereabouts of the boy. 4. On 23.8.1996, at 8.30 p.m. P.W.16 alongwith P.W.18 go to the instructed place keeps the cash bag on the steps of the swimming pool and goes away. The P.W.45 and P.W.46-the Police Officers discreetly keeping watch at the scene had come prepared with P.W11 and P.W.12, the independent witnesses. The accused come by Scooter goes and picks the bag. The P. W.45 and the P. W.46 become vigilant and move into action. The accused sensing danger runs away carrying the bag towards the Sankey Tank. The accused in the process of escape fell into the gutter. The P.W.45 and P.W.46 apprehends the accused, who was and lying injured in the gutter. 5. The accused was unconscious and admitted in Ramaiah Hospital. The C. T. scan disclosed head injury with internal haemotoma. The accused was operated. on 6.9.1996 the accused becomes conscious. The P.W.47(IO) after consulting P.W.26 (doctor), interrogates the accused. On 7.9.1996 the accused by gestures and in writing marked at Ex.P.59 informs the police that he has killed the child and that he would show the dead body. The accused leads P.W.47 P.W.43(doctor), P.W.13 and P.W.14-the panch witnesses and P. W.16 to the interior area called “Gali Thopu” in VAS campus, the accused pointed out the dead body lying in a bush. The body was petrified and not in an identifiable position. The spot mahazar is prepared at Ex.P. 7. The skull of the skeleton is seized under Ex.P. 7. The skull M.O.9 was sent to FSL for superimposition test along with the latest photograph of the deceased. The P.W.42 (Forensic expert) testify to the fact that the skull M.O.9 pertains to the deceased. 7. The spot mahazar is prepared at Ex.P. 7. The skull of the skeleton is seized under Ex.P. 7. The skull M.O.9 was sent to FSL for superimposition test along with the latest photograph of the deceased. The P.W.42 (Forensic expert) testify to the fact that the skull M.O.9 pertains to the deceased. 7. The prosecution version further discloses that the accused is a distant relative of P.W.16 and between 19.8.1996 to 23.8.1996 he was making discreet enquires P.W. 18 and P.W.21 (the neighbours of P.W.16) to know before hand the steps and efforts made by P.W.16 for tracing the boy and the culprit so as to screen himself successfully from being detected. 8. The prosecution has also adduced evidence through P.W.27 to P.W.31 the STD Booth owner and his employees to show that accused was making telephone calls from their booth between 20.8.1996 to 23.8.1996. The police have collected necessary documentary evidence to prove that from the telephone booth of P.W.27 calls were made to the landline phone of P.W.16. The P.W.27 to P.W.31 have deposed to the above fact and have also identified the accused before the court. 9. The trial court has found that the prosecution has proved its case by the following circumstances: i) The evidence of P.W.11, P.W.12, P.W.16, P.W.18, P.W.45 and P. W.46 shows that the accused collected the bag at the Swimming pool at Sankey tank, on sensing danger tried to run away, in the process fell down and sustained head injury. The accused was in coma, was operated and treated at Ramaiah Hospital. The trial court from above evidence infers that the accused is the kidnapper and the anonymous caller demanding ransom. ii) On 7.9.1996 the accused by gestures and by writing at Ex.P.59 tells the police that he has killed the boy and would show the dead body. At the voluntary instance of the accused the dead body was traced n VAS Campus. P.W.13 and P.W.14 are the independent panch witnesses to the discovery mahazar marked at Ex.P. 7. The P.W.43 (doctor) and P.W.16 are also witnesses to the discovery procee dings recorded at Ex.P.7. iii) The skull-M.O.9 seized under EX.P.7 by the evidence of P.W.42 (FSL expert) proves that the skull belongs to the deceased. The report of the super imposition test is marked at Ex.P. 73. The P.W.43 (doctor) and P.W.16 are also witnesses to the discovery procee dings recorded at Ex.P.7. iii) The skull-M.O.9 seized under EX.P.7 by the evidence of P.W.42 (FSL expert) proves that the skull belongs to the deceased. The report of the super imposition test is marked at Ex.P. 73. iv) The evidence of P.W.27 to P.W.31 proves that the accused making telephone calls from the telephone booth to the residence of P. W.16. v) The evidence P.W.18 and P.W.21 (neighbours of P. W.16) shows that the accused was anxiously making enquiries with them about the efforts and steps taken by P.W 16 for tracing the child and the culprit in advance to screen himself being detected. 9. The counsel for the appellant submitted the following circumstances to assail the conviction order: i) It is in the evidence that the rules of the School are strict and do not permit strangers and the outsiders to enter the school compound. The students were not sent out without permission of the school auth orities. Therefore, it is not possible to assume that the deceased was sent out at the request of the accused who is a stranger. ii) It is in the evidence that P.W.38 and P.W.44 who are related to the Principal had made telephone calls to P. W.16 demanding ransom. The voices of some of the anonymous telephone calls are recorded. The I.O. has collected the sample voice of P.W.38 and P.W.44. The unmarked FSL report show that the voice of P.W.38 and P.W.44 tally with the recorded calls. The PW.38 & P.W.44 when they turned hostile the prosecution made an application u/s 319 of Cr.P.C, to array P.W.38 & P.W.44 as co-accused. The above circumstances show that P.W. 38 and P.W. 44 are the culprits and not the accused. iii) The evidence regarding the accused collecting the bag at Sankey Tank and his escapade, when police tried to chase is inconsistent and discrepant. P. W.11 says that the accused collected the bag while running on the footpath fell down and sustained injuries. PW.12 states that the accused while running fell into the tank; PW.45 states that accused ran into the bush and fell down into the gutter. In view of the said discrepant versions, it is argued that apprehe nsion of accused at Sankey tank is a concocted circumstance. PW.12 states that the accused while running fell into the tank; PW.45 states that accused ran into the bush and fell down into the gutter. In view of the said discrepant versions, it is argued that apprehe nsion of accused at Sankey tank is a concocted circumstance. iv) It is argued that the accused was arrested sometime earlier because of 3rd degree method; accused sustained head injury and he was admitted to hospital with false history of injuries. v) The prosecution version discloses that accused was arrested on 23.8.1996 immediately when he fell down into the ditch. The I.O does not show the arrest on record. The accused is admitted to hospital kept under surveillance till his discharge, no application is made to the Magistrate to seek the remand of the accused. vi) The EX.P.57 miss called as 3rd FIR mentions that on the information of the accused the body was traced in VAS Campus. The EX.P57 does not mention that the accused led the police and panchas to the spot leading to discovery of dead body. EX.P.57 does not mention that PW.43 (doctor) had also accompanied and witnesses the proceedings in EX.P.7. P.W.43 has not attested EX.P.7 as a witness. Therefore, the evidence of PW.43 that he is a witness to discovery proceedings at EX.P.7 is incredible. vii) It is mandatory u/s 27 of the Evidence Act that any discovery of incriminating material at the voluntary instance of the accused would be valid and admissible only when the accused in custody and discovery is effected. In the instant case, the accused was appre hended on 23.8.1996. The arrest was not formally shown by the I.O. The accused was under treatment in hospital for about five weeks. It is after discharge from the hospital the legal arrest is shown. Therefore, the discovery evidence is inadmissible. 10. The inconsistent version regarding the manner in which accused escaped and sustained injuries at the Sankey tank in the evidence of P.W.11, P.W.12, P.W.16, P.W.45 and P.W.46 is only of trivial nature. The salient feature of the evidence of the above witnesses disclose that accused came and picked up the bag on suspecting the police presence tried to run away, in the process fell down. The salient feature of the evidence of the above witnesses disclose that accused came and picked up the bag on suspecting the police presence tried to run away, in the process fell down. There may be discrepancy in the evidence as to where exactly he fell, but it is quite natural that such discrepancies do happen when the witnesses are giving evidence after three years after the incident. Therefore, on over all consideration, we find that evidence of the above witnesses that the accused picked up the bag at Sankey tank and while running-away he fell down and sustained injuries and he was apprehended at Sankey tank at the date and time is credible. The said circumstance clinchingly establish the fact that the accused is the kidnapper and anonymous caller. 11. The contention that the formal arrest is not shown and reported to the Magistrate after the apprehension of the accused on 23.8.1996 at about 8.45p.m near Sankey tank appears to be an imprudent technical lapse on the part of the IO sans mala-fide. The accused technically and legally is deemed to be arrested in law on 23.8.1996, the discovery evidence at Ex.P. 7 is collected whilst in custody. Therefore, the evidence at EX.P.7 is valid and admissible evidence. 12. The contention that the Ex.P.57 (3rd FIR) does not refer to the proceedings in EX.P.7 which led to the discovery of the dead body at the voluntary instance in presence of P.W.13, P.W. 14, P.W. 16, P.W.43 and the I.O. therefore, there is no discovery u/s 27 as per EX.P.7 is an untenable contention. The contents of Ex.P.57 do not warrant such a strict interpretation. The EX.P.57 is after all prepared as a report to the court for including an offence U/S 302 IPC. It is not necessary that all the details referred to in Ex.P.7 should be repeated. There is no reason to suspect the credibility of P.W.13, P. W.14 and P. W.43. The discovery of dead body at the voluntary instance of the accused convincingly establishes as a linking circumstance to prove the guilt of the accused. The evidence of P. W.27 to 31 also corroborate the prosecution case that accused was making calls to the residence of P.W.16 from the public telephone booth belonging to P. W. 27. The discovery of dead body at the voluntary instance of the accused convincingly establishes as a linking circumstance to prove the guilt of the accused. The evidence of P. W.27 to 31 also corroborate the prosecution case that accused was making calls to the residence of P.W.16 from the public telephone booth belonging to P. W. 27. It may be that there may be feeble and half-hearted evidence collected by prosecution against P.W. 28 and P.W. 44 regarding their involvement in the crime. Nonetheless, the evidence adduced by the prosecution against the accused clinchingly establishes the guilt of the accused. The order of convi ction recorded by the trial court against the accused for committing offence U/s. 364-A, 302 and 201 IPC is sound and proper. 13. The trial court has imposed sentence of imprisonment for life for committing offences under sec. 364-A and 302 IPC, in addition heavy fine is imposed. In respect of offence U/S 201 IPC, the trial court imposed sentence of R.1 for a period of 3 years and heavy fine. 14. The State has come up in appeal seeking both death penalty against the accused for a conviction for the offence punishable U/S 364-A and 302 of lPC. 15. The learned SPP relied on the decision of the Supreme Court in of Mohan Vs. State of Tamilnadu reported in 1998 SCC (Cri) 1308 and the decision of the Supreme Court in the case of Sushil Murmu Vs. State of Jharkand reported in AIR 2004 SC 394 and the decision of the Supreme Court in Henry West Mullar Roberts Vs. State of Assam and Others reported on AIR 1985 (3) SCC 291 and other batch of cases. The facts and ratio laid down in the above decisions disclose that in a case of kidnapping the minor for ransom and committing murder, the Supr eme Court has affirmed the death sent ence, therefore, argued that in this case also the accused should be imposed death sentence. 16. The Counsel for the accused relied on the decision of Supreme Court in the case of Alokenath Dutta Vs. State of West Bengal 2007 (1) Recent Apex Court to contend that in a case where accused is found guilty by circumstantial evidence, it is not desirable in law that death penalty to be imposed. In the instant case the accused is held guilty by circumstantial evidence. State of West Bengal 2007 (1) Recent Apex Court to contend that in a case where accused is found guilty by circumstantial evidence, it is not desirable in law that death penalty to be imposed. In the instant case the accused is held guilty by circumstantial evidence. Therefore, we are of the opinion that the sentence of imprisonment of life imposed is to be confirmed. 17. We are astounded to hear from the SPP that accused is granted benefit of remission by the State in view of “Suvarna Karnataka Celebrations”(Golden Jubilee of the Formation of Karnataka State). The Supreme Court in Epuru Sudhakar and Another Vs. Govt of A.P. and Others (2006) 3 SCC (Cri) 438 has cupiously referred to the precedent law with powers of pardon envisaged under Article 72 and 161 of the Constitution of India. 18. The Supreme Court in Maru Ram Vs. Union of India reported in (1981) 1 SCC 107 with reference to Article 72 and 161 of the Constitution has held that all public power including Constitutional power shall never be exercised arbitrary or mala fide. 19. In Kehar Singh Vs. Union of India (1989) 1 SCC 204 it is held that the considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. The President’s power under Article 72 is subject to judicial review. 20. In Swaran Singh Vs. State of UP (1998) 4 SCC 75 the Supreme Court has held, the rigid contention that the Court has no power to touch the order passed by Governor under Article 161 of the Constitution cannot be accepted if such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the Constitutionalism, the by product order cannot get approval of law and in such cases, judicial hand must be stretched to it. 21. In Epuru Sudhakar and Another Vs. Govt of A.P. and Others (Supra) the Supreme Court reiterated the proposition of law postulated in the above decisions, with reference to Article 72 and 161. Sri S.H.Kapadia, J., in his concurring opinion makes the following observations in para 62, 63, 66 and 67: 62. Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are acts of grace. They are a part of constitutional scheme. Sri S.H.Kapadia, J., in his concurring opinion makes the following observations in para 62, 63, 66 and 67: 62. Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are acts of grace. They are a part of constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed. 63. The power to grant pardons and reprieves was traditionally a royal prerogative and was regarded as an absolute power. At the same time, even in the earlier days, there was a general rule that if the king is deceived, the pardon is void, therefore, any separation or truth or suggestion of falsehood vitiated the pardon. Over the years, the manifestation of this power got diluted. 66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendants guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political royalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised, on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of “Govern ment according to Law”. The ethos of “Government according to Law requ ires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. The Rule of Law principle comprises a requirement of “Govern ment according to Law”. The ethos of “Government according to Law requ ires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. 67. The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. The exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case. It is important to bear in mind that every aspect of the exercise of the power under Article 72 as also under Article 161 does not fall in the judicial domain. In certain cases, a particular aspect may not be justiciable. However, even in such cases there has to exist requisite material on the basis of which the power is exercised under Article 72 or under Article 161 of the Constitution, as the case may be. In the circumstances, one cannot draw the guidelines for regulating the exercise of the power.” 22. Sri Arijit Pasayat, J., while writing his opinion in para 34 has reduced the following grounds upon which the exercise of judicial review can be exercised: (a) That order has been passed witbout application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness. 23. It is pertinent to note that Section 433A of Cr.P.C. mandates that in case of life convict remission cannot be granted unless he has served minimum 14 years of imprisonment. In the instant case the accused had hardly served sentence of 11 years. 23. It is pertinent to note that Section 433A of Cr.P.C. mandates that in case of life convict remission cannot be granted unless he has served minimum 14 years of imprisonment. In the instant case the accused had hardly served sentence of 11 years. The Executive while granting remission under Article 72 and 161 of the Constitution should have valid reasons for relaxing the legislative mandate U/s 433 Cr.P.C. The provisions of Section 433A is a part of the Act of Parliament and express the will of the people unless special and justifiable circumstances exist. The Governor should necessarily keep in mind the provisions of Section 433A. Only in exceptional cases for public welfare and public good the prerogative power to be exercised. The celebration of Golden Jubilee of formation of State of Karnataka may be a laudable step, but to let off the criminals who have committed gruesome and heinous offences on the pretext of “Suvarna Karnataka Celebrations” is a misplaced sympathy. The present order of blanket remission in a heinous crime of this nature is a clear case of non-application and anti-thesis to rule of law. The order of remission is not only illegal but blatantly immoral to show legal sympathies to the accused who has committed a loathsome and macabre act of kidnapping and killing a minor child. Any leniency shown to the accused guilty of the offence of this nature would give wrong signals. The sentencing policy of this kind instead of having a deterrent effect would rather patronize criminals. Therefore, the order of remission is set aside. 24. The accused despite remission is not set free and serving sentence for non-payment of fine. It appears that poetic justice has played its role in keeping the accused deservedly incarcerated. The sentence imposed by the trial court for the offence under Sec.201 I.P.C shall not run concurrently. The sentence imposed by the trial court is modified in the terms stated above. The appeal of the State is partly allowed. The appeal filed by the accused is dismissed. 25. The Registry is directed to send the copy of the Judgment to the Chief Secretary, Home Secretary and to the Secretary to his Excellency the Hon’ble Governor.