Judgment HEMANT GUPTA, J. 1. This order shall dispose of Murder Reference No.3 of 2009 and Criminal Appeal no.776-DB of 2009, arising out of conviction of Pappu Paswan (hereinafter referred to as the accused) for the offences punishable under Sections 367, 377, 302 and 201 IPC and sentenced to death, subject to confirmation of this court. 2. One Achhey Lal son of Madho Shanker (hereinafter referred to as the victim), a child of 6 years was kidnapped by the accused on 13.2.2009 at about 1.00 PM. The accused has committed carnal intercourse against the order of nature with the victim and thereafter, caused his death and further in order to screen himself from punishments, caused dis-appearance of the evidence of the Murder reference No.3 of 2009 and 2 Crl. Appeal No.776-DB of 2009 aforesaid offences by throwing the dead body of the victim into the bushes in the area of jungle near Phase-XI, Mohali. 3. It was on 15.2.2009, mother of the victim Shanti got recorded her statement ex. P-19 to the Police. It was stated by her that she has five children and youngest is the victim of about 6 years. When the victim was playing in the park at about 1.00 PM on 13.2.2009, she came to know that the accused was standing near him and that the accused has brought the victim to the park for the purpose of playing. When the victim did not return home, she searched for him and also made inquiries from the accused, who told her that after playing in the park, he had left her son home. Since, Shanti could not find her anywhere in spite of extensive search, she gave the identity and photographs of the victim to the Police. On the statement of Shanti, ASI Om Parkash made endorsement Ex. P-20 and thereafter an FIR Ex. P-38 was registered vide endorsement Ex. P-21. 4. On 16.2.2009, SI Baldev Kumar (PW-12) alongwith other police officials, while on patrol duty met Madho Shanker, father of the victim and recorded his statement Ex. P-2. He stated that the accused has taken away their son because about 15 days ago the accused came to them and demanded a loan of Rs.5000/-. Since the amount was not lent, the accused felt bad, uttered hard words and threatened to teach them a lesson. P-2. He stated that the accused has taken away their son because about 15 days ago the accused came to them and demanded a loan of Rs.5000/-. Since the amount was not lent, the accused felt bad, uttered hard words and threatened to teach them a lesson. He expressed his apprehension that it is the accused, who kidnapped his son with an intention to cause harm to his life. Subsequently, the accused was arrested vide memo Ex. P-3. During interrogation, the accused gave disclosure statement Ex. P- 4 to the effect that on account of grudge for not advancing loan of Rs.5000/- for purchase of ration, he enticed away the victim, while he was playing in park. He disclosed that he had taken the victim in the jungle area, near Phase- XI, Mohali, with an intention to have carnal intercourse against the order of nature with him and that he was having a blade, which he used for his shave. He had also picked up a rope on the way and had put the same into his pocket. He further disclosed that in the jungle, he had put off the shirt of the victim and also brought down the black coloured pant of the victim below his hips. He further took out the underwear of the victim by tearing it out, for the purpose of tying the mouth of the child. When he could not succeed in tying the mouth of the victim with that underwear, he used the shirt of the victim in tying his mouth properly. He then tied both the hands of the child with a blue coloured rope backwards. Thereafter, he made the child lay with his mouth towards ground and committed carnal intercourse against the order of nature. He further disclosed that when the child was in great distress, then he tied both the feet of the child backwards with the same rope with which his hands were tied. Since, there was movement in the child, he took out blade from his pocket and cut the throat of the child. He also disclosed that he had kept concealed the blade into the bushes, with which he cut the throat of the child. Since, there was movement in the child, he took out blade from his pocket and cut the throat of the child. He also disclosed that he had kept concealed the blade into the bushes, with which he cut the throat of the child. He also kept concealed the dead body of the child into the bushes after picking it from the spot and that he alone knows about the dead body as well as the blade used by him in this crime and can get the same recovered. 5. On the basis of the said disclosure statement, the accused led the police party to the jungle area of bushes and got recovered the dead body of the child. At that time, both the hands and the feet of the child were found tied with the rope. The mouth of the dead body was also tied with a shirt. The pant of the deceased was down to his knees. The accused also led the police party to the adjoining area, from where one blood stained blade used by the accused in the commission of crime was recovered. At that point of time, SHO Anokh Singh (PW-9) arrived at the spot, on requisition, with the photographer and vediographer. At that stage, the rope was untied from the hands and legs. The wearing clothes, blood stained plastic rope were put in to separate polythene. 6. The blood stained blade was also put in a plastic container. The blood stained soil was also picked up in polythene. 7. On 18.2.2009, the accused on further interrogation by Inspector Anokh Singh, disclosed that the pant and shirt, which the accused was wearing on the date of commission of crime were blood stained and that he has kept concealed the same in his house No.1652/3, Sector 52, Chandigarh. On such disclosure statement, the pant and shirt of the accused were recovered, which were blood stained. 8. Apart from examining the Doctors for proof of post-mortem report of the victim, medico legal report of the accused, other witnesses of recovery and disclosure statements, the prosecution also examined Madho Shanker, father of the victim (PW-2) and Ravinder, brother of victim (PW-7 ). From the testimony of ravinder (PW-7), it was sought to be proved that victim Achhey Lal was last seen with the accused. 9. From the testimony of ravinder (PW-7), it was sought to be proved that victim Achhey Lal was last seen with the accused. 9. The learned trial Court relied upon the statement of Ravinder (PW-7) as well as statements of Shanti Exs. P-19 and P-23, to come to the finding that the victim was last seen in the company of the accused on 13.2.2009. The time gap between the death and post-mortem is four days as per the post-mortem report ex. P-34, which corroborate the evidence of the prosecution that the victim went missing on 13.2.2009. Though learned counsel for the accused has tried to dispute the testimony of Ravinder (PW-7), as the one who has been introduced, but the statement of the said witness cannot be said to be of a unreliable person. Though he was working full-time in a house at Mohali, but there is no evidence that he could not come out before the end of the day. As per his statement, he has come to the house around noon, after finishing his work. 10. Apart from the evidence of Ravinder (PW-7), the relevant incriminating evidence is that the dead body was recovered from jungle area at the instance of the accused; and even the blood stained blade was also recovered at his instance. Subsequently, pant and shirt worn by the accused were also recovered at his instance from his house. All such recoveries at the instance of the accused are proved by the testimony of the witnesses of recovery memos. There is nothing to doubt the statements of the prosecution witnesses and the Investigating Officer. Some part of the recovery is also vediographed. 11. In view of the above, we do not find that the conclusion reached by the learned trial Court in respect of commission of crime by the accused suffers from any illegality and, thus, the findings recorded are hereby affirmed. Learned counsel for the accused-appellant has then vehemently argued that the punishment of death, granted by the learned trial Court is not borne out from the facts on record. It is pointed that the accused is 35 years of age and has two children aged about 4 and 2 years and also a wife. There is no evidence that the accused was involved in any crime much less heinous prior to the commission of the present offence. It is pointed that the accused is 35 years of age and has two children aged about 4 and 2 years and also a wife. There is no evidence that the accused was involved in any crime much less heinous prior to the commission of the present offence. It is also contended that there is a possibility of reforming such an accused and, therefore, present is not a rarest of rare case, which may warrant death sentence. Learned counsel for the accused-appellant has relied upon Amit @ Ammu Vs. State of Maharashtra 2004 (1)RCR (Criminal) 563 and Gagan Kanojia and another Vs. State of Punjab 2007 (1)RCR (Criminal) 222, to contend that the crime may be heinous, but still it is not a rarest of rare case, which may warrant imposition of death penalty. 12. The learned trial Court has found that the act committed by the accused is not only barbaric, brutal, revolting, depraved but also conscience shocking of the community at large. The victim of this case is an innocent child of the age of 6 years, who could not have or has not provided even, an excuse much less any provocation for murder. For no fault of his, he was enticed away, made subject of unnatural lust and then in order to save himself from punishment, the convict had done away with his life that too with great brutality. The learned trial Court found that mitigating circumstances have delineated by the Honble Supreme Court in Bachan Singh Vs. State of Punjab AIR 1980 SC 898 and that even in circumstantial cases, the death penalty can be given, as held by Honble Supreme Court in Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra 2008 (4) RCR (Criminal) 202. On the other hand, learned counsel for the prosecution relies upon Honble Supreme Court judgment reported as State of U. P. Vs. Satish (2005) 3 SCC 114, wherein in respect of offence of rape and murder of a child of 6 years, and on a conviction based on circumstantial evidence, the Court has upheld the punishment of death sentence. On the other hand, learned counsel for the prosecution relies upon Honble Supreme Court judgment reported as State of U. P. Vs. Satish (2005) 3 SCC 114, wherein in respect of offence of rape and murder of a child of 6 years, and on a conviction based on circumstantial evidence, the Court has upheld the punishment of death sentence. The Court has said that when the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community; or when the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, death sentence is warranted. 13. The issue, as to which case would be rarest of rare which may warrant imposition of death sentence, was considered by a Larger Bench of Honble supreme Court in Swamy Shraddananda @ Murali Manohar Mishra Vs. State of karnataka (2008) 13 Supreme Court Cases 767. The Honble Supreme Court laid down legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy by the High Courts as well, while applying the following extract from Dalbir Singh Vs. State of Punjab (1979) 3 SCC 745 : "14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad Vs. State of U. P. (1979) 3 SCC 646. Take the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the mens life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder." Later, after considering the entire history of law, the Honble Supreme Court observed: "91. The legal position as enunciated in Pandit Kishori Lal Vs. Kind Emperor, air 1945 PC 64, Gopal Vinayak Godse Vs. State of Maharashtra, AIR 1961 SC 600, maru Ram Vs. Union of India, 1981 SCC (Criminal) 112, State of M. P. Vs. Ratan singh, 1976 SCC (Criminal) 428 and Shri Bhagwan Vs. State of Rajasthan, 2001 SCC (Criminal) 1095 and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission. 92. That matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial Court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Courts option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable any proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i. e. the vast hiatus between 14 years imprisonment and death. Such a course would indeed be disastrous. A far more just, reasonable any proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i. e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. 93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singhs case besides being in accord with the modern trends in penology. 94. In the light of the discussions made above, we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be." 14. Though the accused is a person of 35 years of age and has two small children, the fact remains that he has acted with brutality with a child who was helpless. The accused, who is a neighbourer of the victim, was in dominating position, so as to entice him away and then subjected to the barbaric act of tying him with rope; had carnal intercourse; and then brutally cut his throat with blade. We feel that it is not a case of confirmation of death sentence, as the convict has no previous antecedents of any heinous crime. In view of the judgment in Swamy Shraddanandas case (supra), we substitute the punishment of death sentence to life imprisonment for actual life and direct that the accused be not released from the prison for rest of his life. However, in case of good conduct of the convict in prison, he can be considered for release after the expiry of 20 years. However, in case of good conduct of the convict in prison, he can be considered for release after the expiry of 20 years. But in no case, he shall be released before actual incarceration for the period of 20 years. With the said observations and modifications in the punishment, the murder reference and the appeal stand disposed of.