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2017 DIGILAW 1412 (ORI)

State of Orissa v. Banabihari Behera @ Haria

2017-12-07

D.DASH

body2017
JUDGMENT : The appellant-Banabihari Behera @ Haria faced the trial in the Court of Additional Sessions Judge, Jajpur in C.T. Case No. 315 of 2013 standing charged for commission of offence under section 302 IPC. The trial court has found the appellant guilty of murder under section 302 IPC. Having thus for been convicted for the offence of causing murder of the sixteen years daughter of the informant who was then a student of Ist Year of Intermediate in Science, the appellant has been sentenced to death. In view of the infliction of the capital punishment upon the appellant, for its confirmation, reference has been made under section 366(1) of the Code of Criminal Procedure, 1973 (for short, the Code’). The appellant being aggrieved by the said order of conviction and the order of sentence has also filed an appeal from inside the jail. 2. The reference as well as the appeal had been heard by the Hon’ble Judges constituting the Division Bench. The Bench delivered two judgments on 19.11.2015. While two Hon’ble Judges are of the unanimous opinion that the finding of guilt recorded by the trial court is based on just and proper appreciation of evidence on record keeping in view the settled position of law warranting no interference and accordingly have held that the conviction of the appellant has to be maintained, the difference of opinion arises as to the sentence to be awarded. The Hon’ble Judge presiding the Bench when observed that the case falls within the category of ‘rarest of rare’ cases as it is a case of brutal murder of a young adolescent damsel aged about sixteen years by infliction of twelve numbers of injuries on her person by means of a sharp cutting weapon and thus the death sentence is only adequate one; the other Hon’ble Judge however has differed on this aspect of sentence that the appellant has to be visited with. The Hon’ble Judge having said that mitigating circumstances, particularly the young age of the appellant without any criminal track record and in the absence of any such material that he is a menace to the society and as such remaining with the continuous threat from the society and the possibility of his being reformed and rehabilitated not ruled out has opined that imposition of sentence of death is not called for and it is a case where sentence of imprisonment for life be awarded, further taking note of the fact that when the motive behind the crime has neither been so pin-pointedly projected nor established. This is how, the matter has thus been laid before me as provided under section 370 read with section 392 of the Code. 3. The facts having been comprehensively given in the judgment of the Hon’ble Judge presiding the Bench, I would only refer to such facts as are necessary for disposal of the matter in hand which has been laid before me. Suffice it to say that the appellant-accused Banabihari Behera also called as Haria in the locality and the deceased belong to the same village and particularly their houses are not far apart. The appellant was then working as the driver in a truck and earning his livelihood when deceased was prosecuting her studies as a student of Ist Year of Intermediate in Science. 4(a). On 26.04.2013 at about 7.30 a.m. the deceased who was the only daughter of the informant (P.W.2) and aged about 16 years had been to attend the call of nature with her mother, P.W.3 to the nearby canal running little away on the back side of their house. The appellant, a co-villager of the informant who had then concealed his presence near the bushes, suddenly came out and started dragging the deceased towards the ridge, holding her hands. The mother of the deceased i.e. P.W.3 though tried to resist the attempt of the appellant and rescue the deceased, it was all in vain. So she rushed to the house and informed her family members to appropriately respond forthwith. The father of the deceased (P.W.2) and others thereafter rushing near the spot, saw the appellant dealing successive blows by means of a ‘Kata’ (a type of small dagger, a billhook) on the deceased who was lying in a naked condition. So she rushed to the house and informed her family members to appropriately respond forthwith. The father of the deceased (P.W.2) and others thereafter rushing near the spot, saw the appellant dealing successive blows by means of a ‘Kata’ (a type of small dagger, a billhook) on the deceased who was lying in a naked condition. Seeing the arrival of P.W.2 and others, the appellant fled away from the spot carrying the weapon. P.W.2 and others through chased him returned empty handed. The father of the deceased suspected that the murder was committed in execution of a prior plan hatched by the appellant and the members of his family particularly i.e., his elder brothers Hrusikesh Behera, Babaji Behera and sister-in-laws, namely Lipi Behera and Tiki Behera who playing their respective role therein. It was also suspected that the deceased had been subjected to sexual assault soon before her death caused by the appellant by infliction of fatal injuries all over the body. (b). Father of the deceased, P.W.2 on that day around 9 a.m. presented a written report to the Inspector-in-Charge of Tomka Police Station. (c). On receipt of the written report, Inspector-in-Charge of Tomka Police Station (P.W.17), registered Tomka P.S.Case No. 28 of 2013 under section 302/376 read with section 34 of the Indian Penal Code not only against the appellant but also against his family members namely Hrusikesh Behera, Babaji Behera, Lipi Behera land Tiki Behera. He (P.W.17) then directed Parao Tudi (P.W.19), S.I. of Police, Tomka Police Station to investigate into the case. During course of investigation, the witnesses were examined the Investigating Officer visited the spot and prepared spot map (Ext.12). He also seized blood stained earth, sample earth, aluminum ‘lota’, a pair of slipper of Paragaon make, head hair, ear rings of the deceased lying at the spot under seizure list (Ext.2/1). Inquest over the dead body was conducted at the spot on 26.04.2013 during noon hours in presence of the witnesses vide inquest report (Ext.4). The dead body was then sent to C.H.C., Danagadi for post mortem examination and after that the wearing apparels of the deceased were seized under seizure list, Ext.5. P.W.14 Dr. Ramesh Kumar Sahoo, Medical Officer, Danagadi C.H.C. conducted post mortem examination over the dead body of the deceased on 26.04.2013 and submitted the post mortem report vide Ext.6. The dead body was then sent to C.H.C., Danagadi for post mortem examination and after that the wearing apparels of the deceased were seized under seizure list, Ext.5. P.W.14 Dr. Ramesh Kumar Sahoo, Medical Officer, Danagadi C.H.C. conducted post mortem examination over the dead body of the deceased on 26.04.2013 and submitted the post mortem report vide Ext.6. His evidence in consonance with the repot is that he had noticed most importantly one chop wound on the neck completely transecting the spinal cord and vertebra at 6-7 level size of the size of 20x15x10 cm, transecting the great vessels of the neck besides two other chopped wounds on face, incised wound on deltoid muscle, incised wounds on right fore-arm on back side, left fore-arm cutting bones of radiua and ulna. The appellant was arrested on 28.04.2013 at 5.00 a.m. at village Tomka and was taken to the Police Station. The appellant while in police custody is said to have confessed his guilt in the presence of the witnesses and further stating to have concealed the ‘Kata’ near bushes has accordingly, led the police party to the place of concealment in giving recovery of the ‘Kata’ which was seized under seizure list (Ext.11). After receipt of the post mortem examination report, on 30.04.2013, that ‘Kata’ being sent to the doctor (P.W.14) for his opinion to connect its user with the injuries found on the person of the deceased, the opinion vide Ext.8,has been in the affirmative that the injuries sustained by the deceased are possible by that ‘Kata’. On 02.05.2013 the material objects were sent to S.F.S.L., Rasulgarh, Bhubaneswar following due procedure and on completion of investigation finally the appellant alone was charge sheeted. (d). The prosecution in order to prove its case has examined in total twenty one witnesses besides proving the supporting documents marked as Exts. 1 to 18 and seventeen material objects, M.O. I to XVII, when two witnesses have been examined from the side of the defence. 5. Both the Hon’ble Judges are of the view that the finding of guilt against the appellant as has been returned by the trial court is in order, having unanimously arrived at the conclusion that the appellant is liable to be convicted for commission of offence under section 302 IPC. 5. Both the Hon’ble Judges are of the view that the finding of guilt against the appellant as has been returned by the trial court is in order, having unanimously arrived at the conclusion that the appellant is liable to be convicted for commission of offence under section 302 IPC. In view of the fact that the Hon’ble Judges are divided in their opinion in the matter of award of sentence upon the appellant whose conviction has been found to be in order, the matter has been laid before me in terms of the provision of section 370 and 392 of the Code centering round the question of sentence. Both the Hon’ble Judges have relied on a numbers of cases decided by the Apex Court in the matter of infliction of death sentence in support of their respective view point. 6. Now, therefore, I shall proceed to the sentencing. 7. Mr. D.P. Das, learned Advocate/Amicus Curiae submitted that the sentence passed by the trial court ought to be set aside and the learned trial judge in awarding the death sentence has failed to keep in view those aggravating as well as mitigating circumstances which have bearing on the question of sentence, especially in the case of imposition of death penalty. He submitted that the learned trial judge has pronounced the sentence in a routine manner for which it is vitiated. Criticizing the sentence, he placed reliance of Banchan Singh v. State of Punjab; AIR 1980 SC 898 and submitted that the trial court has committed error by not properly appreciating the said authoritative pronouncement in as much as the position that the court in Banchan Singh (supra) has categorically held that the extreme penalty can be inflicted only in gravest cases of extreme culpability and that in making the choice of sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also have not been properly viewed and appreciated. 8. Mr. Das further contended that in the present case, the decision in Banchan Singh was completely disregarded and the trial court, while sentencing the accused, only placed emphasis on the brutal and heinous nature of the crime and the mitigating factors including the possibility of reform and rehabilitation of the appellant were ruled out on the basis of the nature of the crime and not on its own merits. 9. 9. Mr. Das further submitted that the trial court failed to pay due regard to the mitigating factors; that the court has committed the mistake of rejecting the mitigating factors by reasoning that it may not be sufficient for awarding life sentence; and that the courts have not considered all the mitigating factors cumulatively in order to arrive at the conclusion whether the case fell within the category of ‘rarest of rare’ cases. According to him, the young age is a mitigating factor which has been taken note of by the Apex court in several cases. He urged that the crime when is not premeditated, the same stands as the mitigating factor and that has to be given its due place for being taken into account. He further submitted that when the criminal antecedents of the appellant are lacking, the prosecution has not been able to say that the appellant deserves imposition of lesser sentence. He also submitted that considerable weightage must be given to the concept of reformation and rehabilitation. According to him, the present case easily passes all the laid down tests so as to stand as a fit one for commutation of the death sentence to life imprisonment. According to him, the young age as the mitigating factor has to be taken note of along with the presence of mother and other family members of the appellant standing as his dependants with there is absence of any continuing threat to the collective. It is submitted that testing the present case in the touch stone of the principles propounded in the decisions of the Apex Court, the case does not fall within the ‘rarest of the rare’ cases category and therefore the norm is for awarding life sentence and not the death penalty which is exception. 10. Learned counsel for the State submitted that the trial judge has appositely sentenced the appellant to death after drawing up the balance sheet of the mitigating and aggravating circumstances and striking a just balance and has rightly found that here is a case where the sentence of death is adequate. He also submitted that the mitigating circumstances are required to be considered in the light of the offence and not alone on the back drop of age and family back ground. 11. Let me proceed to analyze the aforesaid aspects. In the case of Bachan Singh vrs. He also submitted that the mitigating circumstances are required to be considered in the light of the offence and not alone on the back drop of age and family back ground. 11. Let me proceed to analyze the aforesaid aspects. In the case of Bachan Singh vrs. State of Punjab; AIR 1980 SC 898 the Apex court has held that :- “164…….(a). The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence. (b). While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence”. “202……..‘Aggravating circumstances. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence”. “202……..‘Aggravating circumstances. -A court may, however, in the following cases impose the penalty of death in its discretion : (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty ; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.” “203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other”. xx xx xx “206…….‘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 the conditions 3 and 4 above. (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 the 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 unpaired his capacity to appreciate the criminality of his conduct.” “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.” “209………. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” 12. In the case of Machhi Singh v. State of Punjab; AIR 1983 SC 957 , it has been held that :- “32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence –in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.” 13. The court next has adverted to the aspects of the feeling of the community and its desire for self-preservation and opined that the community may well withdraw the protection by sanctioning the death penalty. What has been ruled in this regard is worth reproducing :- “32……..But the community will not do so in every case. It may do so “in the rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.” 14. It is apt to state here that in Machhi Singh case, stress was laid on certain aspects, namely, the manner of commission of the murder, the motive for commission of the murder, antisocial or socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of murder. After so enumerating, the propositions that emerged from Bachan Singh, were culled out which are of as follows :- “The following propositions emerge from Banchan Singh case. ‘(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.” 15. It has been further opined in Machhi Singh’s case that to apply the said guidelines, the following questions are required to be answered : “(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?” In the said case, the Court upheld the extreme penalty of death in respect of three accused persons. 16. The Apex Court in the case of Haresh Mohandas Rajput v. State of Maharashtra (2011) 12 SCC 5, while dealing with the situation where the death sentence is warranted, referred to the guidelines laid down in Banchan Singh and the principles culled out in Machhi Singh and opined as follows :- “19. In Machhi Singh v. State of Punjab, this Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Banchan Singh to cases where the “collective conscience” of the community is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between the aggravating the mitigating circumstances.” The Court then ruled that :- “20. The rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organized criminal activities, death sentence should be awarded.” 17. In a case of murder of a young girl of about 18 years in Dhananjoy Chatterjee vrs. State of West Bengal; (1994) 2 SCC 220 , the Court took note of the fact that the accused was a married man of 27 years of age, the principles stated in Bachan Singh’s case and further took note of the rise of violent crimes against women in recent years and, thereafter, on consideration of the aggravating factors and mitigating circumstances, opined that : “15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” The Court then took note of the fact that the deceased was a school-going girl and it was the sacred duty of the appellant, being a security guard, to ensure the safety of the inhabitants of the flats in the apartment but to gratify his lust, he had raped and murdered the girl in retaliation which made the crime more heinous. It was also considered that on many occasions the victim had been teased by Dhananjoy on her way back from her school and the latest was three days before and that Dhananjoy’s all these actions being complained of, the employer was arranging for his transfer and thus there was a motive and sense of revenge in his mind. Appreciating the manner in which the barbaric crime was committed on a helpless and defenceless school-going girl of 18 years, the Court came to hold that the case fell in the category of rarest of the rare cases and, accordingly, affirmed the capital punishment imposed by the High Court. In fact in case of ‘Rameshbhai Chandubhai Rathod vrs. State of Gujarat; (2009)5 SCC 740 which was a case of rape and/or murder of girl of tender age, a student of IV Standard in the school by the appellant employed as a watchman in the Apartment who was married having wife and children, their Lordships agreed for the conviction to sustain. The difference of opinion arose on the question of sentence; when the Hon’ble Judge, presiding the Bench confirmed the death sentence, the other Hon’ble Judge held that life sentence be given. The appeal in view of difference of opinion on the imposition of sentence had been referred to a three Judges Bench. The decision as reported in (2011) 2 SCC 764 has been that the case was not in the category of ‘rarest of rare’ cases. The appeal in view of difference of opinion on the imposition of sentence had been referred to a three Judges Bench. The decision as reported in (2011) 2 SCC 764 has been that the case was not in the category of ‘rarest of rare’ cases. Accordingly, the death sentence being commuted to life, it was however directed that the life sentence must extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reason. 18. In Laxman Naik v. State of Orissa, 1994 SCC (Cri) 656, the judgment begins as under: “1. The present case before us reveals a sordid story which took place sometime in the afternoon of February 17, 1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature is said to have been committed by the appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a prey to his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large”. 19. In Laxman Naik case, the High Court had dismissed the appellant’s appeal and confirmed the death sentence awarded to him. While discussing as regards the justifiability of the sentence, the Court referred to the decision in Bachan Singh’s case and opined that there were absolutely no mitigating circumstances and, on the contrary, the facts of the case disclosed only aggravating circumstances against the appellant. Proceeding further, the Court held thus : “The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.” After so stating, the Court, while affirming the death sentence, opined that : “28 …….The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code.” 20. In case of Kamta Tiwari vrs. State of M.P. (1996) 6 SCC 250 , the appellant was convicted for the offence punishable under Section 363, 376, 302 and 201 IPC and sentenced to death by the learned trial Judge and the same was affirmed by the High Court. In appeal, the two-Judge Bench referred to the propositions culled out in Machhi Singh and expressed thus : “8. Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances-but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him “Tiwari Uncle”. In vain we have searched for mitigating circumstances-but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him “Tiwari Uncle”. Obviously her closeness with the appellant encouraged her to go to his shop, which was near the salon where she had gone for a haircut with her father and brother, and ask for some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder-as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent helpless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a “rarest of rare” cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s abhorrence of such crimes.” 21. In Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 , the appellant was awarded sentence of death by the learned trial Judge which was confirmed by the High Court, for he was found guilty of the offences punishable under Section 376(2)(f), 377 and 302 IPC. In the said case, the prosecution had proven that the appellant had lured a three-year old minor girl child on the pretext of buying her biscuits and then raped her and eventually, being apprehensive of being identified, killed her. In that context, while dismissing the appeal, the Court ruled thus :- “37. In the said case, the prosecution had proven that the appellant had lured a three-year old minor girl child on the pretext of buying her biscuits and then raped her and eventually, being apprehensive of being identified, killed her. In that context, while dismissing the appeal, the Court ruled thus :- “37. When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purpose of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. 38. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of P.W.2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness’. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.” 22. In the recent case of Mukesh vrs State (NCT) of Delhi); (2017) 6 SCC 1 , the Apex Court taking note of the proven factual matrix of the horrendous incident found in the case, the brutal, barbaric and diabolic nature of the crime. The Court held :- “364. It is necessary to state here that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons viz. The Court held :- “364. It is necessary to state here that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons viz. the assault on the informant, P.W. 1 with iron rod and tearing off his clothes; assaulting the informant and the deceased with hands, kicks and iron rod and robbing them of their personal belongings like debit cards, ring, informant’s shoes, etc; attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; their brutish behaviour in having anal sex with the deceased and forcing her to perform oral sex; injuries on the body of the deceased by way of bite marks (10 in number); and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death. The medical history of the prosecutrix (as proved in the record in Ext.PW-50/A and Ext.PW-50) demonstrates that the entire intestine of the prosecutrix was perforated and splayed open due to the repeated insertion of the rod and hands; and the appellants had pulled out the internal organs of the prosecutrix in the most savage and inhuman manner that caused grave injuries which ultimately annihilated her life. As has been established, the prosecutrix sustained various bite marks which were observed on her face, lips, jaws, near ear, on the right and left breast, left upper arm, right lower limb, right inner groin, right lower thigh, left thigh lateral, left lower anterior and genitals. These acts itself demonstrate the mental perversion and inconceivable brutality as caused by the appellants. As further proven, they threw the informant and the deceased victim on the road in a cold winter night. After throwing the informant and the deceased victim, the convicts tried to run the bus over them so that there would be no evidence against them. They made all possible efforts in destroying the evidence by, inter alia, washing the bus and burning the clothes of the deceased and after performing the gruesome act, they divided the loot among themselves. 365. They made all possible efforts in destroying the evidence by, inter alia, washing the bus and burning the clothes of the deceased and after performing the gruesome act, they divided the loot among themselves. 365. As we have narrated the incident that has been corroborated by the medical evidence, oral testimony and the dying declarations, it is absolutely obvious that the accused persons had found an object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her along with her friend out of the bus and crush them. The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome bestiality of passion ruled the mindset of the appellants to commit a crime which can summon with immediacy a “tsunami” of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.” Having said so, the Court arrived at singular conclusion that the mitigating circumstances highlighted which pertain to the strata to which they belong, the aged parents, marital status and the young children and the suffering they would go through and the calamities they would face in case of affirmation of sentence, their conduct while they are in custody and the reformative path they have chosen and their transformation and the possibility of reformation being taken together do not outweigh the aggravating circumstances. In that view of the matter, the death penalty has been confirmed being found to be the only adequate. 23. Mr. In that view of the matter, the death penalty has been confirmed being found to be the only adequate. 23. Mr. D.P. Das, learned Advocate/Amicus Curiae for the appellant argued that keeping in view the ratio laid down in the aforesaid decisions by going through the facts and circumstances of the case, it cannot be said that the case is falling within the category ‘rarest of rare’ cases as by balancing the aggravating and mitigating circumstances upon consideration of the totality of the case, the case in hand cannot be taken to be one where imposition of life imprisonment would be wholly inadequate and thus would not meet the ends of justice. He while concluding submitted that the imposition of death penalty here would be extremely harsh and totally unwarranted in as much as the case at hand does not fall in the category of the ‘rarest of rare’ cases. Learned counsel for the State argues that on the totality of the facts and circumstances of the case, in this incident of brutal murder of a young girl of sixteen years old who was then a student of Ist Year of Intermediate Science and with the mitigating circumstance such as the young age of the appellant who is having his mother and other family members; absence of criminal track record, the scope of reformation and rehabilitation being viewed cumulatively, do not outweigh the aggravating circumstance. 24. Keeping in view the authoritative pronouncements, and the rival submission, coming to examine the facts and circumstances relevant for the purpose, it appears to be a case that the appellant was infatuated and thereby obsessed with the physical charm of the deceased and was under the extreme emotional and psychological disturbance due to passiveness of the deceased towards his infatuation. Given anxious consideration to the evidence let in during trial especially as regards the trailer to the main picture i.e. the incident of infliction of injuries on the deceased, it plainly strikes to mind as if some matters concerning the relationship between the two are not being placed by the witnesses for the reasons known to them or thinking for a moment that in so far as the trial is concerned, those are of no relevance. The extreme fascination of the appellant towards the deceased and the failure on his part to win over her heart appears to have been the cause of frustration and that again being expressed in the last meet closing the chapter for ever is seen to have led the appellant to be greatly disturbed emotionally and psychologically to a degree beyond the range of human thermo stat. The evidence would go to show that the appellant had not started the assault no sooner he appeared. He first of all dragged her and that he ventured to do in presence of mother of victim (P.W.3). Then however, there is lack of evidence on the score as to what it transpired between the appellant and the deceased after the mother of the deceased (P.W.3) left the spot. The possibility of altercation or tussle between them in the fact situation of the case is not altogether ruled out. The appellant has used “Kata’, the sharp cutting weapon of small size in inflicting the blows, but has not attempted in any way to harm the chastity of the deceased which is fortified from the report of the doctor who has not noticed any injury on the genitals or breasts of the deceased. The clothings of the deceased were intact as has been noticed during inquest at the spot. The initial allegation that the deceased was ravished prior to the infliction of the blows on her person leading to her death, in course of investigation has been found to have not derived any support from any such material and thus has proven untrue. The appellant, a bachelor was by avocation a driver of the truck, having the members of the family needing his support and he has no such criminal track record to his credit. The crime as committed does not appear to be premeditated which is again a mitigating factor. 25. The appellant is an able bodied young man of 35 years old as has been observed by the trial court. It has not been shown by the prosecution that the appellant is menace to the society, as such there remains continuous threat from the side of the society. The prosecution has not submitted any material to show that the possibility of reform of the appellant stands totally ruled out and that he cannot be reformed and rehabilitated at any time in future. The prosecution has not submitted any material to show that the possibility of reform of the appellant stands totally ruled out and that he cannot be reformed and rehabilitated at any time in future. At the same time, no adverse report is forthcoming from the jail authority and placed by the prosecution as regards the conduct of the appellant during all these period spent by him in jail. The appellant’s conduct in course of investigation has not been in the light of destroying the evidence or avoiding the process of law and rather, it is seen that since his arrest, he fully co-operated with the investigation. 26. True it is that the manner in which the incident has taken place and the way the appellant has committed the offence, the age of the victim and her helplessness at that point of time when seen with the number of injuries inflicted upon her, visualizing for a moment their force and impact from the detail narration of those injuries, go to show the brutality of the crime committed which however is not the sole criteria for judging the case to be within the category of “rarest of rare” cases; it has to be one of extreme brutality and exceptional depravity so as to avoid the criticism that the death penalty has been taken as the norm and not the exception. In the above way, cautiously and anxiously weighing the aggravating and mitigating circumstances, I am led to record my opinion that the aggravating circumstances as projected are not ought weighing the mitigating circumstances. Consequent upon the above, I conclude that the case in hand does not fall within the category of “rarest of rare” cases so as to say that only adequate penalty for the offence committed by the appellant is death and therefore, be hanged by the neck until he be dead. 27. For all the aforesaid, in my considered opinion, the sentence of death awarded to the appellant be commuted to imprisonment for life.