JUDGMENT D.K. Sinha, J. The death reference under Section 366(1) Code of Criminal Procedure and the Criminal Appeal aforesaid of the sole appellant Amir Chakrabarty @ Amit Chakrabarty under Section 374(2) of the Code of Criminal Procedure, arising out of common judgment of conviction and order of sentence in Jorapokhar P.S. Case No.264/05, corresponding to Sessions Trial No.131/06 are taken up together by which the appellant Amir Chakrabarty @ Amit Chakrabarty was convicted under Sections 376/302/201 of the Indian Penal Code as also under Sections 3(2) (v) and 3(2)(vi) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. Apart from sentence of imprisonment awarded to the appellant in different counts, under Sections 376/201 of the Indian Penal Code, he was awarded death sentence for his conviction under Section 302 of the Indian Penal Code by Sri Vijay Shanker Singh, the learned 1st Additional Sessions Judge-cum-Special Judge, Dhanbad on 15.4.2010. 2. Prosecution story in short was that Jorapokhar P.S. Case No.264/05 was registered on 27.12.2005 on the basis of the Fardbeyan of the informant P.W.-13 Astami Devi recorded on the same day. She narrated therein that on 26.12.2005 at about 7:30 o'clock in the night her daughter Urmila Kumari, 8 years (since deceased) was doing her self study with her companion Rukmani Kumari, about 6 years at Mansa temple. At that time the informant was indulged in gossiping with her co-sister Golfi Devi, Bibi Bauri and Sakhi Devi sitting there by the side of the said temple at some distance. In the meantime, Amir Chakrabarty @ Amit Chakrabarty came to Mansa Mandir and took away her daughter Urmila Kumari by persuading that her sister-in-law was calling to serve her bread to eat. When Urmila Kumari did not return back for a long time, the informant asked her son Raju Bauri to go and search her. She further narrated that her co-sister and daughter-in-law also came out in search of Urmila Kumari in the neighbour. During course of search, Amir Chakrabarty @ Amit Chakrabarty was seen coming from the river side. When he was confronted to answer the whereabouts of Urmila Kumari, he became nervous and ran away. Some of the witnesses chased and followed him, whereas other set of witnesses went towards river in search and found the dead body of Urmila Kumari on the bank of river. When he was confronted to answer the whereabouts of Urmila Kumari, he became nervous and ran away. Some of the witnesses chased and followed him, whereas other set of witnesses went towards river in search and found the dead body of Urmila Kumari on the bank of river. The body was nude and pus like substance was coming out from her private part. The informant alleged that Amir Chakrabarty @ Amit Chakrabarty committed murder of her daughter after ravishing her and threw the dead body in the water with the intention to screen it. Informant put her signature on her fardbeyan which was attested by P.W.-2 Josana Devi. A case was registered for the offence under Sections 376/302/201 of the Indian Penal Code against Amir Chakrabarty @ Amit Chakrabarty on her Fardbeyan and after investigation, the Investigating Officer submitted charge-sheet against him under Sections 376/302/201 Indian Penal Code as also under Section 3 (xii) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. 3. Learned counsel Mr. Indrajit Sinha submitted that there was no direct evidence and the appellant was convicted only on the basis of suspicion raised against him and the circumstantial evidence. The death sentence that was awarded to him was without considering the settled principles of law and the instant case did not come within the category of the rarest of rare case. Learned trial Judge failed to appreciate that there was vital contradiction in the statements of the prosecution witnesses, as such, no reliance could have been placed upon such statements. Sentence awarded to the appellant was excessive and too harsh to be executed and the learned trial Judge failed to take into consideration the mitigating circumstances that there was no eye-witness of the occurrence. Learned trial Judge further erred by relying upon the evidence of last seen, which was not conclusive in nature. The prosecution failed to connect that it was none other than the appellant Amit Chakrabarty who committed murder and the prosecution further failed to point out motive of the appellant behind such killing. The post mortem report did not entail that victim was ravished before her death. Therefore, there was missing link of the chain of circumstances and it could not be proved that the appellant committed murder of a minor girl. Advancing his argument Mr. The post mortem report did not entail that victim was ravished before her death. Therefore, there was missing link of the chain of circumstances and it could not be proved that the appellant committed murder of a minor girl. Advancing his argument Mr. Sinha the learned counsel further explained that there was no material on the record to attract the conviction of the appellant for the charge under Sections 3(2) (v) and 3(2) (vi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as it was no where alleged that the alleged offence was committed only because Urmila Kumari was a girl who belonged to Scheduled Caste. 4. Advancing his argument, learned counsel submitted that the instant case does not come within the category of the rarest of rare case in the facts and circumstances of the case if at all the complicity of the appellant has been found to be proved against the various charges framed against him including one under Section 302 of the Indian Penal Code. Appellant at the relevant time was in his young age of 20, illiterate man without job and having no criminal antecedent at all. No instance has been brought on the record by the prosecution in course of trial that he was criminal bent of mind or incorrigible on account of his past conduct. No special reason has been assigned by the trial Judge while awarding the extreme sentence of capital punishment to the appellant except by mentioning that the act of the appellant was like a beast, who committed rape on a helpless minor girl to appease the lust of his sex and in that manner, he displayed extreme form of bestiality. Mr. Sinha submitted that even if such observation of the trial Court is accepted for the argument's sake, the instant case does not come within the category of the rarest of rare case. 5. The Apex Court in Bachan Singh versus State of Punjab, reported in (1980) 2 SCC 684 devised a guide line by discussing mitigating factors as the test for awarding extreme penalty to a convict and mitigating factors were suggested for consideration which are as follows: "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 acontinuing 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. (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." 6. Considering the above suggestion, the court may find that the appellant was only 20 years old, quite young and there was every chance of his reformation and rehabilitation. It can well be inferred that the offence alleged was committed, under the influence of extreme mental or emotional disturbance, by the appellant which needs consideration and in the alternative, the death sentence may be commuted and modified into imprisonment for life for the conviction of the appellant under Section 302 of the Indian Penal Code. 7. Having regard to the totality of the facts and circumstances of the case, we find that P.W.-1 Golfi Devi,P.W.-2 Josana Devi, P.W.-7 Sakhi Devi and P.W.-10 Rukmani Kumari (child witness) were consistent that the appellant Amir Chakrabarty @ Amit Chakrabarty had taken away Urmila Kumari, a girl aged about 8 years, while she was doing her self study on 26.12.2005 at about 7:30 p.m. at Mansa temple. At that time, the victim Urmila Kumari was doing her self study with P.W.-10 Rukmani Kumari and her mother P.W.-13 Astami Devi was indulged in gossiping, sitting at some distance with other witnesses when the appellant came to Mansa temple and took away Urmila Kumari by persuading that her sister-in-law was calling to serve her bread to eat. When Urmila Kumari did not return back for a long time, mother P.W.-13 Astami Devi suspected some foul play and asked her son P.W.-6 Raju Bauri to go and search his sister Urmila Kumari. The other witnesses also admitted that they had also come out in search of the girl. When Urmila Kumari did not return back for a long time, mother P.W.-13 Astami Devi suspected some foul play and asked her son P.W.-6 Raju Bauri to go and search his sister Urmila Kumari. The other witnesses also admitted that they had also come out in search of the girl. In the same sequence, the appellant was seen coming and when called upon to explain the whereabouts of Urmila Kumari to whom he had taken away with him, he started running. He was apprehended by the witnesses after some time in whose presence he confessed his guilt and that he ashamed for what he did with Urmila Kumari. Learned trial Judge relied upon the extra-judicial confession of this appellant which was relevant and further relied upon his confessional statement before the police which led to discovery of the panty on the bank of river where he did commit rape and that panty was identified by the mother P.W.-13 Astami Devi that it belonged to Urmila Kumari and the seizure list was proved. The statement of child witness P.W.-10 Rukmani Kumari needs consideration, who testified before the trial Court that she was doing her self study with Urmila Kumari at the relevant time of occurrence on 26.12.2005 at about 7:30 p.m. whereas the other witnesses including the mother of Urmila were sitting at some distance and gossiping. In the meantime, Amir Chakrabarty @ Amit Chakrabarty came there and asked Urmila to accompany him as her sister-in- law was calling to serve her bread to eat. When Urmila did not return back for a long time, her mother Astami Devi asked her son Raju to go and search Urmila. During search Raju proceeded towards joria (water canal) where he found the appellant coming. When the witnesses asked about the whereabouts of Urmila, she narrated that Amit Chakrabarty started running with the intention to escape from the place. She along with other witnesses proceeded ahead and found the nude dead body of Urmila between the two boulders. She further testified that Amit was brought by the witnesses at the place of recovery of the dead body. She stood to the test of cross-examination and credibility of her testimony could not be shaken in the cross-examination. She along with other witnesses proceeded ahead and found the nude dead body of Urmila between the two boulders. She further testified that Amit was brought by the witnesses at the place of recovery of the dead body. She stood to the test of cross-examination and credibility of her testimony could not be shaken in the cross-examination. She was the only witness, who was produced and examined on behalf of the prosecution, who admitted that the appellant took away the girl Urmila Kumari in her presence while they were doing their self studies together at Mansa temple. 8. We further find from the evidence on the record that the autopsy of Urmila was held by P.W.-14 Dr. Shailendra Kumar, Associate Professor in the Department of Forensic Medicine at P.M.CH., Dhanbad on 27.12.2005 at about 11:30 a.m. who found the following ante mortem wounds on external examination of the deceased: (I) Abrasions (a) 1/2'x1/4' on the left chik (b) 1/2'x 1/4" just below the left angle of mouth (c) 1/4'x1/4' on left side fround of chin (d) 1'x1/2'on the upper portion front of neck (e) 1/4'x1/4' just above the right angle of lower jaw (f) 1/2'x1/4' in the inner aspect of right elbow (II) A single linier search about 3/4' long situated on the upper part of front of forearm going downward and outward. (III) Bruise of red colour with swelling about 1/4" diameter on the inner surface upper leap in the middle. (IV) Two small semi lunner nail marks on the left groin. (V) Hymen was found bruised and congested (VI) Libia majora and libia minora were found bruised, swollen and congested on both sides. On dissection Acchymosis was found subcutaneous tissue on the front side of neck. Left side of heart was empty and right side was full of dark fluid blood. Stomach contained about 150 gm of rice Bladder was empty and all internal organs was found congested. Time elapsed since death 12 to 18 hrs. Cause of death:- death was due to throttling and the deceased was sexually assaulted before strangulation. 9. The expert opinion of the Doctor very clearly indicated that the appellant tried to ravish the minor girl and caused injuries as indicated above. As per statement of the Doctor, the hymen of the girl was found bruised and congested. Cause of death:- death was due to throttling and the deceased was sexually assaulted before strangulation. 9. The expert opinion of the Doctor very clearly indicated that the appellant tried to ravish the minor girl and caused injuries as indicated above. As per statement of the Doctor, the hymen of the girl was found bruised and congested. Her libia majora and libia minora were found bruised, swollen and congested on both sides which conclusively indicated that the victim sustained injuries in her private part because of penetration. The Doctor who held autopsy was of clear opinion that death was due to throttling and deceased was sexually assaulted before strangulation. Postmortem report was proved and marked Ext.-2. 10. We find that the main thrust of the argument advanced on behalf of the appellant was that the instant casedid not come within the category of the rarest of rare case so as to award death sentence to the appellant. We subscribe to the view taken by the Hon'ble Apex Court in Bachan Singh's case (supra) discussed hereinabove. Instant case is based upon circumstantial evidence and it is settled law that the circumstances from which the conclusion of 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. At the same time, the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It is further held by the Apex Court in Dhananjoy Chatterjee alias Dhana versus State of W. B., reported in (1994) 2 Supreme Court Cases 220 that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 11. In the instant case, we find that the ingredient required for a case based on circumstantial evidence is well proved by the prosecution which does not call for further scrutiny. However, the fact remains as to whether the instant case comes within the category of the rarest of rare case or not? 11. In the instant case, we find that the ingredient required for a case based on circumstantial evidence is well proved by the prosecution which does not call for further scrutiny. However, the fact remains as to whether the instant case comes within the category of the rarest of rare case or not? At the same time, we find that the appellant at the relevant time of occurrence was at an early age of 20 and there was chance and occasion for his rehabilitation as no criminal antecedent was reported against him. No doubt, the appellant had committed a crime of most heinous nature as he committed rape and caused death of a female child, aged about only 8 years, but at the same time we are of the considered view, in view of the discussions made hereinbefore, that instant case does not come within the category of the rarest of rare case. 12. Supreme Court of India in Rahul alias Raosaheb versus State of Maharashtra, reported in (2005) 10 Supreme Court Cases 322 observed, "4. We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him. 5. In the result, we confirm the conviction of the appellant on all the counts but for the sentence of death imposed on him under Section 302 IPC, we commute the death sentence to life imprisonment." 13. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him. 5. In the result, we confirm the conviction of the appellant on all the counts but for the sentence of death imposed on him under Section 302 IPC, we commute the death sentence to life imprisonment." 13. In the facts and circumstances, upholding conviction of the appellant and sentence awarded to him under Sections 376/201 of the Indian Penal Code as also under Sections 3(2) (v) and 3(2)(vi) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989, the death sentence awarded to the appellant for his conviction under Section 302 of the Indian Penal Code is modified into one under rigorous imprisonment for life. 14. With this modification in the sentence, the appeal of the appellant is dismissed and the death reference forwarded by the learned 1st Additional Sessions Judge-cum-Special Judge, Dhanbad under Section 366(1) Code of Criminal Procedure is not confirmed.