JUDGMENT : S. L. KOCHAR, J. 1. This judgment shall also govern the disposal of Criminal Appeal No. 187/2010 filed by the appellant/accused Birju against the impugned judgment of conviction and sentence. 2(i). The learned Sessions Judge, Indore/trial Court submitted the Criminal Death Reference No. 1/2010 for confirmation of death sentence passed by the impugned judgment dated 16-2-2010, whereby the learned Sessions Judge has convicted the appellant Birju for the offence under section 302 of the Indian Penal Code (for short "the IPC") and sentenced him to death in Sessions Trial No. 19/2010. The appellant Birju has also been convicted under section 27 of the Arms Act, 1959 and sentenced to RI for three years with fine of Rs.1,000/-. In default of payment of fine, he shall suffer additional RI for one month. 2(ii). The appellant/accused Birju has also preferred Criminal Appeal No. 187/2010 being aggrieved by the impugned judgment of conviction and sentence passed in S.T. No. 19/2010 dated 16-2-2010 by learned Sessions Judge, Indore, as mentioned hereinabove. 3(i). Laconically the prosecution case, as put forth before the trial Court against the appellant, is that on 13-12-2009 at about 8:15 P.M. complainant Babulal (PW-1) was standing at the grocery shop of Kamal Bansal (PW-2) for purchasing some goods. He was holding his daughter's son Arman aged one year in his arms. PW-4 Jagdish was also standing in front of the said shop. Appellant Birju, resident of same locality known as Rustam Ka Bagicha, came over there on his motorcycle and after parking it reached to complainant Babulal and questioned him as to why he was standing there. Babulal replied that he had come to purchase some Kirana, at that juncture appellant demanded Rs.100/- from him for consuming liquor. Babulal expressed his inability to give the money, on which appellant abused him in the name of his mother and took out country-made pistol from his pocket and shot it at the right temporal area of infant Arman. Upon hearing the report of fire, persons of the locality gathered on the spot including Rakhi, the daughter of complainant, her aunt-in-law Sharda Bai and several other inhabitants of that locality. The son-in-law of complainant, named Jeevan, took Arman to hospital and Babulal immediately reached at the police station and lodged the report (Ex.P/1). 3(ii). Upon hearing the report of fire, persons of the locality gathered on the spot including Rakhi, the daughter of complainant, her aunt-in-law Sharda Bai and several other inhabitants of that locality. The son-in-law of complainant, named Jeevan, took Arman to hospital and Babulal immediately reached at the police station and lodged the report (Ex.P/1). 3(ii). Police stepped into investigation and Station House Officer Shri Mohan Singh Yadav (PW-12) reached on the spot and prepared spot map (Ex.P/2), blood stained shirt of complainant Babulal was also seized through seizure memo (Ex.P/3). Empty cartridge, motorcycle and used bullet were seized from the spot, vide seizure memo (Ex.P/6). After preparing inquest report (Ex.P/8), the dead body was sent for post-mortem examination and the same was conducted by PW-10 Dr. A. K. Langewar. The post-mortem report is Ex.P/11 (it appears that because of typing mistake, in the impugned judgment Post-mortem Report is shown as Ex.P/13). 3(iii). The appellant was nabbed and from his possession pistol fixed with magazine was seized through seizure memo (Ex.P/5), and same was sent for examination to Head Constable, D.R.P. Line, Indore, who after it's verification, gave report (Ex.P/12). The seized articles were sent for examination to Forensic Science Laboratory and its report is Ex.P/18-A. The mobile unit of Forensic Science, district Indore, also reached on the spot and it's senior scientist Dr. Sudhir Sharma prepared report (Ex.P/17), after spot inspection. Investigation officer recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge-sheet against the appellant for the offences under sections 302, 327 and 398 of the Indian Penal Code, and under sections 25 and 27 of the Arms Act, 1959. 4. Appellant refuted the charges and claimed trial. He has not examined any witness in his defence, whereas prosecution has examined, in all, 12 witnesses and adduced about 19 documents to prove its case. The learned trial Court after recording the statements of the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as noted hereinabove. 5. We have heard the learned counsel for the parties and also perused the entire record carefully. 6. The learned trial Court after recording the statements of the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as noted hereinabove. 5. We have heard the learned counsel for the parties and also perused the entire record carefully. 6. Learned counsel for the appellant has submitted only argument that even if entire prosecution case is accepted, offence at the most under section 304 (Part-11) of the Indian Penal Code would be made out against the appellant, because the incident occurred all of a sudden on a trivial issue of demand of money for purchasing liquor by the appellant, and appellant had not fired the pistol with specific intention to commit murder of child Arman. 7. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by learned trial Court, and also vehemently argued that looking to the criminal antecedent of the appellant; he has been rightly sentenced to death. Learned counsel has placed reliance of Supreme Court judgments passed in cases of Swamy Shraddananda alias Murali Manohar Mishra vs. State of Karnataka, AIR 2008 SC 3040 and Dilip Premnarayan Tiwari vs. State of Maharashtra, 2010(1) SCC 775 . 8. Before the trial Court as well as before this Court, the homicidal death of deceased has not been disputed by the defence counsel, even otherwise in view of the statement of autopsy surgeon Dr. A. K. Langewar (PW-10) it is fully proved. Dr. Langewar performed post-mortem on the body of deceased and found an entry wound 1.3 c.m. X 1.2 c.m. at the right temporal region, the margins of which were found twisted inward. The exit wound 1.5 c.m. X 1.2 c.m. was also found at the left temporal region, and skull bones were visible. On internal examination, he found an entry hole 1 c.m. X 0.5 c.m. at the right temporal region. Similarly he found an exit hole 1.3 c.m. X 1 c.m. at the left temporal region, borders of which were averted. The bullet had pierced through and through the meningeal membranes and both the lobes of the brain. In the opinion of Dr. Langewar, the wound was caused by firearm and deceased died within 24 hours of post-mortem examination. The cause of death was due to excessive bleeding and shock. Dr. Langewar has proved post-mortem report (Ex.P/11). 9. The bullet had pierced through and through the meningeal membranes and both the lobes of the brain. In the opinion of Dr. Langewar, the wound was caused by firearm and deceased died within 24 hours of post-mortem examination. The cause of death was due to excessive bleeding and shock. Dr. Langewar has proved post-mortem report (Ex.P/11). 9. It is clear from the statements of eyewitnesses Babulal (PW-1), Kamal Bansal (PW-2), Mahesh (PW-3), Jagdish (PW-4) and Heera Banwar (PW-7) that incident occurred in front of the grocery shop at about 8:15 p.m., when complainant Babulal (PW-1) was standing in front of the grocery shop of PW-2 Kamal Bansal for purchasing some goods and his grand son (daughter's son) Arman was in his arms. At that juncture, appellant reached over there on a motorcycle and asked Babulal as to why he was standing there. Babulal replied that he came to purchase some goods, and appellant demanded Rs.1,00/- for purchasing liquor, which was refused by Babulal, and appellant abused him in the name of his mother, thereafter took out a pistol from his pocket and fired the same at temporal region of the skull of Arman aged about 1 year. On hearing report of firearm, peoples of the said locality assembled on the spot, on which appellant left his motorcycle on the spot and fled away. 10. It is clear from the statements of all the eyewitnesses that appellant fired at infant Arman intentionally. It is not a case that appellant at randomly, without aiming at Arman, fired the pistol but unfortunately the bullet hit the skull of the child. In this backdrop, we have to consider whether offence under section 302 (murder) of the Indian Penal Code or section 304 (Part-II) of the Indian Penal Code (culpable homicide not amounting to murder), would be made out against the appellant? 11. The Supreme Court in case of State of Andhra Pradesh vs. Raya Varapu Punnayya and another, 1976(4) SCC 382 , has discussed the difference between murder and culpable homicide not amounting to murder from paragraph-12 to 22, reproduced hereinbelow :- Para-12. In the scheme of the Penal Code 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. In the scheme of the Penal Code 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304. Para-13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions, the safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done- INTENTION (a) with the intention of (b) with the intention of causing such bodily injury as is likely to cause death ; or (1) with the intention of causing death ; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused ; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death ; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. Para-14. Clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300. Para-15. Clause (b) of section 299 does not postulate any such knowledge on the part of the offender. This aspect of clause (2) is borne out by illustration (b) appended to section 300. Para-15. Clause (b) of section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of section 300 can be where the assailant causes death by a first blow intentionally given knowing that the victim is suffering from enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. Para-16. In clause (3) of section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of section 299 and clause (3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury . . . sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. Para-17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Para-17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant vs. State of Kerala is an apt illustration of this point. Para-18. In Virsa Singh vs. State of Punjab, Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at P. 1500): The prosecution must prove the following facts before it can bring a case under section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present ; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Para-19. Thus according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be 'murder'. Illustration (c) appended to section 300 clearly brings out this point. Para-20. Clause (c) of section 299 and clause (4) of section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. It will be sufficient to say that clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. Para-21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of section 304, depending, respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of section 304, Penal Code. Para-22, The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. Para-22, The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stage so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 12. The Supreme Court has also considered the abovementioned aspect, in detail, in case of Mohd. Rafique alias Chachu vs. State of West Bengal, 2008(15) SCC 289 . 13. In the light of aforesaid dicta, now we would consider evidence of present case. 14. The appellant is having criminal antecedent, which is clear from the statement of investigating officer (PW-12) Mohan Singh in paragraph-12. wherein he has deposed that the appellant is a notified bully in the concerned police station and as many as 24 criminal cases were registered against him by the police, out of which three cases of murder and two were attempt to commit murder. In all these cases, after investigation, appellant was charge-sheeted for trial before the court of law. In cross-examination, this statement has not been challenged by the defence. In paragraph-13 only question was put to this witness that along with the charge-sheet list of criminal cases were not filed, on which witness replied that same is available in the case diary. After this answer, counsel for the appellant did not asked the Court to verify this fact and also no suggestion was given to this witness that appellant was not facing prosecution in all the above mentioned criminal cases. These facts are sufficient to hold that appellant was fully aware about the use and consequence of the deadly weapon like pistol, and when his demand was not satisfied; he used the same intentionally to commit murder of child Arman. The injuries show that pistol was fired very accurately and bullet pierced through and through at the vital part of the body i.e. skull. When appellant was using firearm for causing injury to infant Arman, he must be knowing the consequence that because of use of such deadly weapon, there would be no chance for survival of a child aged one year. 15. When appellant was using firearm for causing injury to infant Arman, he must be knowing the consequence that because of use of such deadly weapon, there would be no chance for survival of a child aged one year. 15. In this view of the matter, taking into account all the evidence on record and totality of the circumstance, it can be held that act of the appellant would fall within the purview of clause 1 of section 300 of the Indian Penal Code. He acted with the intention of causing death of the child. 16. In case of Tarlok Singh vs. State of Punjab, 1995 Supp(4) SCC 572, the argument was advanced before the Supreme Court that "there was no motive for the appellant to commit murder, therefore, it cannot be said that the appellant had intention to cause the death of deceased." The Supreme Court has held that "the intention has to be gathered from various circumstances particularly the nature of weapons used and the injuries that are inflicted. If one shoots another with a firearm, there cannot be any other intention. The first illustration of section 300 of the Indian Penal Code itself makes it clear. The appeal of the appellant was dismissed. In this case solitary injury was caused to deceased by gun-shot." 17. In case of Anil vs. State of Haryana, 2007(10) SCC 274 , it was submitted before the Supreme Court that the appellant had no intention to commit murder, the Supreme Court did not accept this argument and held that appellant had fired a shot from the gun, which he was carrying. There was no provocation. The shot was fired on a vital part of the body. The deceased was not carrying any arm. He merely came out probably to ascertain what was happening. There was no immediate provocation. As the deceased was not armed with a gun and was merely opening the door, the appellant must be held to have taken undue advantage of his position. The Supreme Court has given this finding on the argument that case of the appellant would fall under exception 4 of section 300 of the Indian Penal Code, because the act was unpremeditated and no undue advantage was taken by the appellant. 18. The Supreme Court has given this finding on the argument that case of the appellant would fall under exception 4 of section 300 of the Indian Penal Code, because the act was unpremeditated and no undue advantage was taken by the appellant. 18. In case of Hariprasad vs. State of U. P., 2003(9) SCC 60 , the argument was advanced that deceased was killed as a result of a single gun-shot injury, therefore, offence under section 304 (Part-II) of "the Indian Penal Code would be made out. The Supreme Court has observed that "it is not possible to hold that every case of single injury would show the absence of intent to kill. It would depend on the facts of each case. The type of weapon used would also be one of the important aspects to be kept in mind". The submission that is generally made in such cases that "it is a case of single injury resulting in death and, therefore, the offence deserves to be converted from one under section 302, Indian Penal Code to one under section 304, Indian Penal Code, cannot be accepted as a broad preposition of law. One may severe the head of the deceased by single injury or may kill him by single gun-shot on a vital part, as in the present case, it cannot be said that because of single injury the offence under section 304, Indian Penal Code is only made out and not under section 302, Indian Penal Code." 19. In the case at hand, appellant demanded Rs.100/-, who is a notified criminal of the concerned police station, shows the fact that he was terrorising the persons and extorting money to satisfy his lust and on refusal, used the firearm causing injury on vital part of the body of child aged one year, shows that he had no regard for life and limb of other person/persons. In these circumstances, it can not be said that his act would only fall within the purview of section 304 (Part-II) of the Indian Penal Code, culpable homicide not amounting to murder, and we are of the opinion that he fired the pistol with an intention to commit murder of the child, therefore, his act would fall under section 300, Clause 1 of the Indian Penal Code, acted with the intention of causing death. 20. 20. The second limb of the argument of learned counsel for the appellant is that it is not a case falling within the category of rarest in rare case for imposing death penalty. He has invited the attention of this Court towards para-21 of the impugned judgment, wherein it is mentioned that appellant has 5 children, who are dependent on him. The eldest of them is a daughter of marriageable age and his wife has not been heard from the date of incident. Learned counsel has repeated this argument and prayed for imposing life imprisonment. 21. On the other hand, learned counsel for the State has supported the judgment and order of awarding death sentence by learned trial Court. In alternative, learned counsel has submitted on the strength of judgment passed in case of Swamy Shraddananda (supra) and Dilip Premnarayan Tiwari (supra) that sentence of life imprisonment may be passed with a direction not to release the appellant till death or at least he shall serve clear 25 year's of actual imprisonment. 22. For imposing death penalty, the leading judgments on this issue passed by Supreme Court are the case of Bachan Singh vs. State of Punjab, 1980(2) SCC 684 and Machhi Singh and others vs. State of Punjab, 1983(3) SCC 470 . 23. In paragraphs 206 and 207 of Bachan Singh (supra) case, Supreme Court has described the mitigating circumstances and same are abstracted hereinbelow :- "Para 206. Dr. Chitale has suggested these mitigating factors: Mitigating circumstances.-In the exercise of its discretion in the above cases, the court shall take into account the following circumstances - (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The Probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) 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. Para 207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence, some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a 'child', that is, 'a person who at the date of murder was less than 16 years of age', cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children." 24. In case of Machhi Singh (supra), the same principles have been reiterated. 25. Apart from above mentioned two judgments rendered by Supreme Court, the Supreme Court has also discussed, in detail, the question of awarding death sentence and to determine, whether the particular case falls within the category of "the rarest of rare case". In cases of Omprakash vs. State of Haryana, 1999(3) SCC 19 , Bablu vs. State of Rajasthan, 2006(13) SCC 116, State of U. P. vs. Sattan, 2009(4) SCC 736 and Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra, 2009(6) SCC 498 . In case of Santosh Kumar (supra), the law on the question of capital punishment has been re-stated and guidelines have been formulated to be observed while awarding death sentence. In this case, Supreme Court has held that there must be special reasons to impose death penalty and if mitigating factors in the case are stronger, then it is neither proper nor justify to award death sentence, and it would be sufficient to place it out of "rarest of rare category". We have gone through minutely all the aforesaid judgments. 26. We have gone through minutely all the aforesaid judgments. 26. In the light of aforesaid legal position for considering whether the instant case falls within the category of rarest in rare case, we visualize the following circumstances :- i. The offence was not committed under the influence of extreme mental or emotional disturbance. ii. Appellant is a quite matured person aged about 45 years. He is neither young nor old. iii. Looking to his criminal antecedent i.e. he was charge-sheeted for commission of 24 criminal cases, out of which 3 were under section 302 of the Indian Penal Code and 2 were under section 307 of the Indian Penal Code, therefore, there is no probability that the accused would not commit acts of violence in future and his presence in society would be a continuing threat to society. iv. There is no probability or possibility of reformation or rehabilitation of the appellant. v. In the facts and circumstances of the present case, accused/appellant cannot morally justify the commission of murder of child aged one year by him. vi. There is no direct or indirect evidence available to say that accused acted under the duress or domination of another person. vii. The condition of appellant/accused was not such, which may show that he was mentally defective and the said defect impaired his capacity to appreciate the criminality of his conduct. viii. It is purely a cold blooded murder and evidence on record clearly showing the fact that appellant has absolutely no regard for life and limb of others. 27. The learned trial Court has rightly placed reliance on the case of Machhi Singh (supra), wherein Supreme Court has held that awarding of sentence of imprisonment for life would not be an adequate sentence for co-accused Kashmir Singh, and observed in the following words for commission of murder of a boy aged 6 years. "Similarly, Kashmir Singh appellant caused the death of a child Balbir Singh aged six years while asleep, a poor defenceless life put off by a depraved mind reflecting grave propensity to commit murder." 28. In the instant case, appellant just for Rs. 100/- for purchasing liquor, committed murder of a child aged one year in front of the eyes of his grand maternal uncle in a public place. In the instant case, appellant just for Rs. 100/- for purchasing liquor, committed murder of a child aged one year in front of the eyes of his grand maternal uncle in a public place. His act must have shocked the collective conscience of the community, that would expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise retaining death penalty. 29. In the instant case proposition laid down by Supreme Court in case of Bachan Singh (supra), are also fully attracted. 30. In case of Swamy Shraddananda (supra), the Supreme Court has awarded sentence of imprisonment for life and issued direction that appellant shall not be released from prison till the rest of his life. 31. Learned counsel for the appellant has further argued for imposition of imprisonment for life with a direction of not to release the appellant for 20 years from prison or even till the rest of his life, on the strength of judgment rendered in case of Swamy Shraddananda (supra) and Dilip Premnarayan Tiwari (supra) by Apex Court. 32. In our considered view this Court has no power to pass such direction, because under section 302 of the Indian Penal Code only two kind of sentences are prescribed; sentence of death or imprisonment for life. If death sentence is not awarded and life imprisonment is awarded, then it is a matter between the appellant and the State regarding remission and commutation of sentence as per provisions of Criminal Procedure Code, Indian Penal Code and under other statutes like Prison Act Jail Manual, Release of the Offender on Probation Act etc. This Court has no special power or jurisdiction under Article 142 of the Constitution of India, wherein Supreme Court has jurisdiction or power for doing complete justice to pass suitable order. In this view of the matter, we cannot accede to the prayer of learned counsel for the appellant in this regard. 33. In the wake of aforesaid factual and legal discussion, we do not find any merit in the appeal of appellant Birju, therefore, same is hereby dismissed, and we accept the reference made by learned trial Court affirming the conviction and death sentence awarded to the appellant Birju, by the trial Court. As per : MRS. S. R. WAGHMARE, J :- 34. As per : MRS. S. R. WAGHMARE, J :- 34. I had occasion to go through the judgment passed by my Learned Brother and also considering the obligation under section 354(3) of the Criminal Procedure Code cast on the Court to state the 'special reasons' for awarding the sentence of death and not its alternate the imprisonment for life or imprisonment for a term of years, I am impelled to add a few reasons. 35. The nagging thought is that whether the present case is of the rarest of the rare category and the death sentence can be endorsed. I fully agree with the conviction of the accused appellant Birju for the offence of murder under section 302 of the Indian Penal Code of the infant child Arman aged 1 year. However, looking to the nature of the crime before imposing the death penalty and endorsing the view taken by my learned brother at the cost of repetition, I would like to mention the reasons for my endorsing the death sentence on accused appellant Birju. 36. The manner in which the accused Birju shot the infant child because P.W.1 Babulal the grandfather stated that he had no money to give Birju for his drinks, was an act which was extremely brutal and grotesque. It was a senseless murder of a one year old child with high level of depravity and indicated clearly the blatant and utter disregard, for the law of the land by accused Birju because it has not been established that the accused appellant was under the influence of liquor at the time of the incidence. 37. The motive of committing the murder of infant Arman for the sake of money also evinces total depravity and meanness; it is unthinkable under these circumstances as to how the Counsel for the accused appellant pleaded that the act of the accused would fall within the purview of section 304 Part-II of the Indian Penal Code. The accused Birju according to the evidence of the eyewitnesses has directly fired at the child; instantly, when Babulal P.W.1 refused to give him money and he had knowledge of the use of firearms as he was admittedly a hardened criminal. 38. The accused Birju according to the evidence of the eyewitnesses has directly fired at the child; instantly, when Babulal P.W.1 refused to give him money and he had knowledge of the use of firearms as he was admittedly a hardened criminal. 38. It is in these circumstances that I would like to emphasise that the act of Birju was abhorrent and committed in order to terrorize and make the people in the area suppliant to his outrageous demands. And it is in this sense that 'the act of the accused' is antisocial in nature. The victim of murder in the present case is an innocent child Arman aged 1 year who could not have provided even an excuse, much less a provocation for murder and this act has definitely shocked the collective conscience of the community, which has raised the expectancy that the death penalty be imposed on the accused. Even more clinchingly, I find that as observed by my learned brother the accused is a hardened criminal being charge-sheeted for commission of 24 criminal cases out of which three were under section 302 of the Indian Penal Code and two were under section 307 of the Indian Penal Code and hence it can prima facie be adduced that there is no possibility of reformation or rehabilitation of the accused. The accused is an incorrigible and hardened criminal and would not have a second thought for committing another murder if released or rehabilitated and the Courts would be in fact doing a dis-service to the society by showing clemency to such a person. However, considering the case of Swamy Shraddananda vs. State of Karnataka, AIR 2008 SC 3040 whereby the Apex Court was in favour of formalisation of a special category of sentence though, for an extremely few number of cases whereby the sentence of life imprisonment was recommended whereby imprisonment was directed to mean that the accused would not be released from prison till the rest of his life; it would also be the best solution to impose such sentence in the present case, the same however is not possible for this Court to do so. 39. 39. Consequently most of the guidelines as enumerated in the case of Bachan Singh vs. State of Punjab, 1980 (2) SCC Page 684 and Machhi Singh and others vs. State of Punjab, 1983(3) SCC Page 470 for categorising the case in the rarest of rare categories for imposition of the death penalty, have been fulfilled and I have no hesitation in endorsing the death sentence for accused appellant Birju for committing murder of infant Arman under section 302 of the Indian Penal Code. Original judgment is kept in Criminal Death Ref. No. 1/2010, a copy whereof be placed in the record of Criminal Appeal No. 187/2010.