JUDGMENT Munishwar Nath Bhandari, J. - The Special Court, SC/ST (Atrocities) Cases & POCSO Act, Alwar (Raj.) has convicted and sentenced the accused-appellant with death penalty for the offence under section 376AB IPC. The trial court has thus made reference to the High Court under Section 366 Cr.P.C., 1973 for confirmation of death penalty. 2. The accused-appellant has preferred an appeal to challenge the order dated 18th July, 2018 passed by trial court convicting and sentencing him as under: Accused-Pintu: For offence under Section 363 IPC - 5 years' rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo one year simple imprisonment. For offence under Section 366 IPC - 7 years' rigorous imprisonment with fine of Rs. 20,000/-, in case of default to pay fine, to further undergo two years simple imprisonment. For offence under Section 376AB IPC - Death penalty. Brief Facts Of The Case: 3. A report was made with Police Station Laxmangarh, District Alwar (Exhibit-P1) alleging that on 9th May, 2018, while complainant-Suresh Chand was at Village Harsana, victim girl at the age of seven months was left with his bhabhi (Vimla Devi). At around 6.00 PM, acused-Pintu S/o Sohanlal Joshi came at his residence and took away the victim girl. When complainant came to his residence and asked his 'bhabhi' about girl (victim), it was informed that accused-Pintu has taken her away half an hour back. The complainant went to search the girl. When he reached near Football Ground, heard cry of a girl. When he reached to the place of occurrence, saw victim on the lap of accused-Pintu. The accused ran away immediately leaving the victim girl. The Police registered an FIR for offences under Sections 363, 366A, 376 IPC and sections 3 and 4 of the Protection of Children from Sexual Offences Act (in short "the POCSO Act"). After investigation, the charge sheet was filed. Learned trial court thereupon framed charges for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges thus trial commenced. The prosecution produced 21 witnesses apart from 45 documents to prove the case. The statement of accused was recorded under Section 313 Cr.P.C., 1973 and he produced one witness in defence. Learned trial court thereupon framed charges for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges thus trial commenced. The prosecution produced 21 witnesses apart from 45 documents to prove the case. The statement of accused was recorded under Section 313 Cr.P.C., 1973 and he produced one witness in defence. The trial court convicted the appellant for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the PoCSo Act vide its order dated 18th July, 2018. 4. Learned counsel submits that prosecution could not bring evidence to prove case beyond doubt. There is variation and contradiction in the statements of witnesses. It is also that tainted investigation was conducted. The sample of semen of accused was taken before his arrest. The memo of sample is not having signature of the Doctor. The trial court should not have believed the evidence to convict the appellant. It is moreso when no semen was shown on the clothes on its recovery while showing blood on it. The semen was put on the clothes of the victim and the accused subsequently. It is after taking sample before arrest. 5. It is also stated that after arrest at 4.30 PM on 10th May 2018, clothes were recovered and sealed at 5.20 PM i.e. within no time and therein, it was shown only bloodstained. The presence of semen has been shown in the FSL report though in the recovery memo, it has not been shown. It clearly shows a tainted investigation to implicate the appellant. 6. The allegation against the appellant is for commission of rape with seven months old girl but no injury has been sustained by her. In fact, the victim was with her aunt and fell down thus sustained injury. The blood came out due to the aforesaid. The appellant was requested to take her to a hospital. He was on the way to the hospital when complainant met him and started shouting. He then made false allegation against the appellant. The blood on accused's clothes came when he was taking girl to the hospital. The aforesaid has not been believed by the trial court though proved by the appellant in his evidence. 7. He was on the way to the hospital when complainant met him and started shouting. He then made false allegation against the appellant. The blood on accused's clothes came when he was taking girl to the hospital. The aforesaid has not been believed by the trial court though proved by the appellant in his evidence. 7. It is further submitted that in the FSL and DNA report, evidence has not come to show that blood or semen found in the clothes of victim and accused were of the same group. This further supports the appellant. 8. Learned counsel has further stated that while report was made by complainant-Suresh Chand, he had stated that three persons went to search the baby girl but in the court statement, he has changed his version. It was stated that he went to search the victim, Barra Khan @ Kasam Khan met him on the way and thereupon, Krishna Murari came along. The variation in the statement has been ignored by the trial court. In view of the above also, conviction of the appellant for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act deserves to be set aside. 9. It is further submitted that even sentence given to the appellant is in ignorance of law laid down by the Apex Court. It was not such a case where the appellant could have been subjected to death penalty. The trial court has failed to look into the mitigating circumstances before passing the order of death penalty. It has even ignored the age of the appellant. The appellant is not otherwise having criminal background so as to be punished with death penalty. 10. To support the argument, learned counsel for appellant has referred following judgments of the Apex Court: (1) Bantu @ Naresh Giri v. State of M.P., reported in (2001) 9 SCC 615 , (2) Amit @ Ammu v. State of Maharashtra, reported in (2003) 8 SCC 93 , (3) Rameshbhai Chandubhai Rathod v. State of Gujarat, reported in (2011) 2 SCC 764 , (4) Surendra Pal Shivbalakpal v. State of Gujarat, reported in (2005) 3 SCC 127 11. The case does not fall in the category of rarest of rare case. It is settled law that life imprisonment is a rule while death penalty is an exception. The case does not fall in the category of rarest of rare case. It is settled law that life imprisonment is a rule while death penalty is an exception. It was not such a case where act of the appellant can be said to be brutal or such where no other punishment than death penalty can be imposed. 12. Learned Public Prosecutor has opposed the appeal. It is submitted that prosecution could prove their case beyond doubt though for the offence under POCSO Act, burden lies on the accused to show his innocence, once allegations are made for commission of offence. 13. Learned Public Prosecutor further states that case in hand falls in the category of rarest of rare case because rape was committed with a girl at the age of seven months only. It was nothing but a brutal act thus sentence may not be substituted with any other punishment. 14. The commission of offence by the appellant is such which falls in the category of rarest of rare case. The Government brought an amendment to provide death sentence. The amendment for it was made by a Notification dated 31st April, 2018. The commission of offence by accused is subsequent to the date of Notification and accordingly, not only conviction be maintained but punishment given to the appellant may not be interfered. A prayer is accordingly made to answer the reference to confirm the death sentence and while doing so, appeal may be dismissed. 15. Learned Public Prosecutor has given reference of judgment of the MP High Court in the case of Bhagwani v. State of M.P., reported in 2018 (2) JLJ 309 . Therein, it has been held that age of the accused has no nexus so as the other mitigating circumstances to cause interference in death penalty. It is also not necessary that accused must be involved in many criminal cases. The court is expected to maintain the balance. A prayer is to dismiss the appeal while answering the death reference. 16. We have considered the rival submissions made by learned counsel for the parties and perused the record. 17. The complainant made a report vide Exhibit-P1 regarding the incidence. It was alleged that accused has committed offences under Sections 363, 366, 376AB IPC apart from Section 5(m)/6 of the POCSO Act with a girl at the age of seven months. 16. We have considered the rival submissions made by learned counsel for the parties and perused the record. 17. The complainant made a report vide Exhibit-P1 regarding the incidence. It was alleged that accused has committed offences under Sections 363, 366, 376AB IPC apart from Section 5(m)/6 of the POCSO Act with a girl at the age of seven months. The victim girl was with his bhabhi-Vimla Devi while other family members had gone out. The complainant came back to his residence at around 6.00 - 6.30 PM and asked about victim girl. His bhabhi informed that accused has taken her half an hour back. He went to search the girl and on the way, Barran Khan and Krishan Murari came with him. The victim girl was found near compound wall of Football Ground. The accused had kept her on his lap. He ran away from the spot immediately when they reached there. The blood was found on the clothes of the girl when she was taken in their hands. She was thereupon taken to the hospital. 18. After investigation, the charge sheet was filed for offences under Sections 363, 366A, 376 2(1) and 376AB IPC apart from Section 5(m)/6 of the POCSO Act. The court below, thereafter, framed charges vide order 21st June, 2016 for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCsO Act. Since the appellant did not accept the charges, trial commenced and, accordingly, both the parties led evidence. 19. The prosecution produced 21 witnesses and 45 documents to prove their case while statement of accused was recorded under Section 313 Cr.P.C., 1973 He examined one witness-Sunita in defence. Learned trial court has convicted the appellant and sentenced him to death penalty for offence under Section 376AB IPC apart from conviction and sentence under Section 363 & 366 IPC. Since death penalty has been given for offence under Section 376AB IPC, no sentence has been awarded under POCSO Act. Learned trial court has made reference of Section 42 of the POCSO Act for the aforesaid. It provides that when any punishment greater than provided under the POCSO Act is given then no punishment under POCSO Act may be given. 20. Learned counsel for appellant has challenged the conviction and sentence of appellant. To appreciate the argument, we need to consider evidence led by both the parties. 21. It provides that when any punishment greater than provided under the POCSO Act is given then no punishment under POCSO Act may be given. 20. Learned counsel for appellant has challenged the conviction and sentence of appellant. To appreciate the argument, we need to consider evidence led by both the parties. 21. The prosecution has produced complainant as PW1-Suresh Chand to support the case. He narrated the same facts as has been given in the report. Learned counsel for appellant, however, submitted that in the report, he has stated about search of the victim girl along with two others, whereas, in the court statement, there is a variation. The other two persons namely, Barra Khan and Krishan Murari met him on the way and came along with the complainant. 22. The perusal of statement of PW1-Suresh Chand shows that when he came to his house, did not find victim girl thus asked about her to bhabhi-Vimla Devi. She disclosed that accused-Pintu has taken victim girl with him half an hour back. The complainant immediately went to search the victim girl and on the way, Barra Khan and Krishan Murari came along with him. In view of the above, all three made search of the victim. The victim girl was found near compound wall of Football Ground. The witnesses proved report Exhibit-P-1 apart from site plans Exhibit-P3 and 4. The memo for recovery of the clothes of the girl as well as soil taken from the spot was exhibited as P-5, P-6 and P-7. The date of birth certificate was also exhibited as P-8. The medical report has been exhibited as P-9. The witness has made specific allegation against the appellant for commission of rape of a girl at the age of seven months. The witness had seen the accused kept the girl on his lap and immediately when they reached on the spot, accused ran away. The blood was coming out from private parts of the girl thus she was taken to a hospital. PW2-Vimla Devi has corroborated the statement of PW-1- Suresh Chand. It is stated that accused-Pintu came and took away the girl. When PW1 came and asked about baby girl, she informed that accused-Pintu has taken her away half an hour back. The victim girl was later on brought by complainant and other two persons namely, Barra Khan and Krishan Murari. PW2-Vimla Devi has corroborated the statement of PW-1- Suresh Chand. It is stated that accused-Pintu came and took away the girl. When PW1 came and asked about baby girl, she informed that accused-Pintu has taken her away half an hour back. The victim girl was later on brought by complainant and other two persons namely, Barra Khan and Krishan Murari. The clothes were found wet due to blood. The appellant could not demolish statements of PW1 and PW2 in their cross-examination. It is even in reference to the alleged variation in the statement regarding search of girl with Barra Khan and Krishan Murari. The statement of PW1-Suresh Chand has been corroborated by PW3-Krishan Murari. He has stated that on 9th May, 2018 at about 7.30-8.00 PM, when he was going to his residence after closing the shop, complainant-Suresh Chand met him and asked about the victim girl. He and Barra Khan went along with the complainant to make search of the victim and heard cry of the girl. They immediately reached to the place of incidence. They saw accused committing misdeed with victim girl. He ran away from there immediately. In the cross-examination, the appellant could not demolish his statement. PW4-Kasam Khan @ Barra stated that he is residing at the distance of 200-250 metres to the school and heard cry of a baby girl. He initially did not take cognizance as Gadiya Luhar also resides close to the place. Complainant-Suresh Chand met in between and when they went near the compound wall of Football Ground, accused-Pintu was found. He ran away immediately from the place of occurrence after leaving the victim girl. The witness was cross-examined but statement in chief could not be demolished by the appellant. PW7-Sushila has also supported the prosecution case. The other material witness produced by the prosecution is PW11-Dr. Ashok Mahawar. The other witnesses are for recovery of clothes of accused and for that, PW10-Ravindra Singh has exhibited P17 and 18, by which, clothes and DVD were recovered. He has also exhibited P21 site plan. PW13-Dr. Ravi Mathur has stated that a baby girl was examined by him at around 1.00 AM in the night with the consent of her mother. He has given medical report Exhibit-P14. There was forceful penetration and accordingly, mentioned in the medical report. The blood came out due to rupture of hymen. The statement of PW13-Dr. PW13-Dr. Ravi Mathur has stated that a baby girl was examined by him at around 1.00 AM in the night with the consent of her mother. He has given medical report Exhibit-P14. There was forceful penetration and accordingly, mentioned in the medical report. The blood came out due to rupture of hymen. The statement of PW13-Dr. Ravi Mathur corroborates the prosecution case for commission of offence. The FSL and DNA report have also supported prosecution for commission of rape with victim girl at the age of seven months. The clothes of the victim girl as well as of the accused were found bloodstained with the presence of semen. As per mixed report, semen and blood on the clothes of the accused-appellant was matching to the blood group and semen on the clothes of victim. The FSL report was exhibited as P22 and DNA test is P23. 23. The learned counsel for appellant submitted that at the time of recovery of the clothes, presence of semen was not shown, rather, it was put by the Police subsequently because his semen for sample was taken even prior to arrest. A reference of arrest memo (Exhibit-P16) has been given to show that appellant was arrested on 10th May, 2018 at 4.35 PM, whereas, semen was taken at 9.00 AM. A reference of Exhibit-P29 has been given to show requisition for it by the SHO at 9.00 AM and at 9.00 AM itself, process for taking semen was completed. 24. The allegation of the appellant is that semen was not shown on the clothes so recovered. We do not find any substance in the argument of learned counsel for appellant because at the time of recovery, presence of blood can be seen apparently, but not of the semen. If at all argument of learned counsel for appellant in reference to semen is considered then also blood sample was also sent for FSL and DNA test. The report of DNA confirms same blood group on the clothes of victim and the clothes recovered from the accused. This otherwise shows that investigating agency had no reason to take sample of semen and put it on the clothes of the accused. It is not that semen was taken by the Police to put it on the clothes, rather, it was taken by the Doctor after requisition given by the SHO vide Exhibit-P29. This otherwise shows that investigating agency had no reason to take sample of semen and put it on the clothes of the accused. It is not that semen was taken by the Police to put it on the clothes, rather, it was taken by the Doctor after requisition given by the SHO vide Exhibit-P29. It was sealed thereupon and given to the investigating agency in the sealed packet. The sealed packets were kept in the "Malkhana" and subsequently sent for FSL and DNA. In view of the above, we are unable to accept the plea taken by the appellant that after taking sample, investigating agency put it on the clothes. 25. The other issue is regarding time of taking sample. The documents exhibited by prosecution show that sample of semen was taken by 9.00 AM on 10th May, 2018. The requisition of the SHO is also of the same time. The doubt in regard to sample of semen has been made. We find no substance in the argument for the reason that sample was not taken by the Investigating Agency but by the Doctor. It was sealed in a packet and thereupon sent to the Police. The sealed packet was kept in the "Malkhana". The time written in the documents may mis-match but it does not demolish the case for the reason that sample was taken by the Doctor. The sample of semen was taken at 9.00 AM and thereupon, it was sent for DNA test vide Exhibit-P27. 26. Learned trial court has also considered and dealt with the issue in Para 80 and 81 of the impugned order. The FSL and DNA test cannot be doubted because samples sent for testing were found sealed. It confirms that semen found on the clothes of the appellant and also of the victim matched. It is by giving mixed report in DNA test for blood as well as semen vide Exhibit-P23. 27. The prosecution produced PW12-Kailash, who had seen the accused with victim girl at around 6-6.30 PM. He is having a shop near Bus Stand. Pintu came to purchase something while carrying victim with him. This also supports prosecution case. 28. A reference of Exhibit-P14 and 15 has also been given to demolish the case of the accused as hymen cannot be ruptured, if somebody falls, as stated by the accused. 29. PW15-Dr. Suresh Gupta conducted potency test of the accused. Pintu came to purchase something while carrying victim with him. This also supports prosecution case. 28. A reference of Exhibit-P14 and 15 has also been given to demolish the case of the accused as hymen cannot be ruptured, if somebody falls, as stated by the accused. 29. PW15-Dr. Suresh Gupta conducted potency test of the accused. The accused had given consent for potency test apart from taking sample of semen for DNA test. The documents i.e. Exhibit-P26 and 26A were proved by the said witness. It is also stated that after taking sample, it was sealed in a packet and given to the Police for DNA test. It was vide Exhibit-P26 where his signatures "E" to "F" exist. The samples taken were exhibited as P27 where even signatures of the accused exist. 30. It is, stated by learned counsel for appellant that on the memo, signature of the Doctor does not exist. The argument aforesaid has also been considered by the trial court. We find that appellant had not disputed his signature on the consent for taking sample for DNA test. It is not that samples were not taken by the Doctor, rather, it was taken and consent for testing is Exhibit-P28. Accordingly, if memo does not contain signature of the Doctor, the document cannot be ignored when corroborative evidence exist regarding consent of the appellant for taking sample. It was thereupon given to the Police after sealing it and ultimately, sent for FSL and DNA report where both the samples were found in sealed condition. 31. PW16-Harishpal was Malkhana Incharge and he has also supported the prosecution case. He has stated that sealed samples were brought and kept in "Malkhana" by making entries in the register at item no.413. The samples were given for FSL report on 14th May, 2018. The register was exhibited as P31 so as certified copy as P31A. The appellant could not demolish their statement in the cross-examination. 32. The other material witness is PW17-Prahlad Sahay, who conducted investigating of the case and exhibited P1 to P5 apart from Exhibit-P7 to P15. He has proved recovery of the clothes and even samples sent for FSL report. The witness PW17-Prahlad Sahay has corroborated the statement of other witnesses. His statement could not be demolished by appellant in his cross-examination. 32. The other material witness is PW17-Prahlad Sahay, who conducted investigating of the case and exhibited P1 to P5 apart from Exhibit-P7 to P15. He has proved recovery of the clothes and even samples sent for FSL report. The witness PW17-Prahlad Sahay has corroborated the statement of other witnesses. His statement could not be demolished by appellant in his cross-examination. He had, however, admitted that whether report (Exhibit-P1) was given by the complainant after writing it by himself or by others cannot be stated by him. The aforesaid issue is not material. In the cross-examination of the said witness, he denied that Exhbit-P3 was prepared on 10th May, 2018 at 9.40 AM. The site plans, Exhibit-P3 and P4, were prepared and even bloodstained soil was collected after reaching to the place of occurrence. 33. Learned counsel for appellant, at this stage, submits that witness has stated that accused had taken out the underwear of the victim and kept it on the side. If that is so, how it could contain blood and semen. The fairness of investigation has been questioned in reference to it. We find that when PW1-Suresh Chand apart from PW3-Krishna Murari and PW4-Kasam Khan @ Barra reached to the spot, the accused was found and he ran away immediately. The victim girl was taken by them. The witnesses have not been examined on the issues raised by the appellant and otherwise, recovery of underwear of the victim has not been doubted. It was found bloodstained and also carrying semen. It has been proved in FSL and DNA report. In view of the above, we are not impressed with the argument raised by learned counsel for appellant. Learned trial court has considered the statements of all the witnesses before coming to the conclusion of commission of offence by the appellant and conviction for offence under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. 34. The appellant has made statement under Section 313 Cr.P.C., 1973 and produced Sunita as DW1. The defence taken by the appellant that he did intercourse with his wife on the date of occurrence and thereupon, came to the residence of victim to get milk. When he reached to the residence of complainant, found that victim fell down and received injuries. Vimla Devi requested him to take baby girl to hospital near Football Ground. The defence taken by the appellant that he did intercourse with his wife on the date of occurrence and thereupon, came to the residence of victim to get milk. When he reached to the residence of complainant, found that victim fell down and received injuries. Vimla Devi requested him to take baby girl to hospital near Football Ground. The complainant-Suresh Chand met him on the way. The statement given under Section 313 Cr.P.C., 1973 has not been corroborated by other evidence than by DW1-Sunita, who had stated that appellant was with her till 4 O'clock and went to the place of victim to get milk. The appellant has not produced any witness to corroborate his statement that he had taken the victim to a hospital. If statement of PW12-Kailash is seen, it shows that appellant was carrying baby girl and purchased something from the market. He had not stated that girl was having blood, rather, it corroborates the case of the prosecution. Thus, we find no reason to cause interference in the finding recorded by the trial court. The prosecution could prove their case beyond doubt regarding commission of offence under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. 35. We, accordingly, confirm the order of the trial court for conviction of appellant under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. The trial court has elaborately recorded its finding after proper examination of evidence led by the prosecution and even dealt with the issues raised by the appellant. Heard On Death Sentence: 36. Learned counsel for appellant has questioned the death penalty for offence under Section 376AB IPC. He submits that death sentence has been given to the appellant ignoring mitigating circumstances and without drawing balance-sheet. 37. It is stated that appellant is at the age of 20 years and recently got married. It has also been ignored by trial court while giving death penalty. The trial court even ignored that no injury was found other than rupture of hymen. In case of forceful penetration, victim should have sustained serious injuries not only on private parts but other parts of the body. Taking into consideration the age of the accused and other mitigating circumstances, a prayer is made to cause interference in the death penalty. It is not a case falling in the category of rarest of rare case. 38. In case of forceful penetration, victim should have sustained serious injuries not only on private parts but other parts of the body. Taking into consideration the age of the accused and other mitigating circumstances, a prayer is made to cause interference in the death penalty. It is not a case falling in the category of rarest of rare case. 38. It is also stated that death penalty is an exception while life imprisonment is a rule. The trial court has failed to make distinction between death penalty and life imprisonment. A prayer is made to interfere in the order of death penalty. It is moreso when appellant has no criminal background. The reference of judgments of the Apex Court in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 and in Machhi Singh & Ors. v. State of Punjab, reported in (1983) 3 SCC 470 has been given. 39. Learned Public Prosecutor has contested the issue. She submits that victim was at the age of seven months only and commission of offence by appellant has been proved. Taking into consideration the aforesaid, trial court has rightly given death sentence to the appellant. The commission of offence against female and more specifically child needs to be considered seriously while giving sentence. 40. Learned Public Prosecutor has made reference of the judgments of the Madhya Pradesh High Court, where order of the trial court was affirmed. It is in following cases: (1) Criminal Reference No.01 of 2018, Special Judge, Court of Protection of Children from Sexual Offences Act, District Shahdol (M.P.) v. Vinod alias Rahul Chouhtha (2) Criminal Reference No.5/2017, District & Sessions Judge, Dindori (MP) v. Bhagwani & Anr. 41. In view of the above, prayer of learned Public Prosecutor is to confirm the death penalty and accordingly, answer the reference sent by the trial court. 42. A reference of recent amendment in the Indian Penal Code has also been given. The amendments were made to provide death penalty for offence under Section 376AB IPC apart from other offences. The Notification for it was issued prior to occurrence thus amended provisions apply to the case. 43. An amendment in the IPC was made taking into consideration repeated occurrence against child victim. A prayer is, accordingly, made to even dismiss the appeal. 44. The Notification for it was issued prior to occurrence thus amended provisions apply to the case. 43. An amendment in the IPC was made taking into consideration repeated occurrence against child victim. A prayer is, accordingly, made to even dismiss the appeal. 44. We have considered the rival submissions made by learned counsel for the parties in reference to death penalty given by trial court for offence under Section 376AB IPC as sentence for other offences have not been challenged by the appellant. 45. For imposition of death penalty, the guidelines were laid down by the Supreme Court in the case of Bachan Singh v. State of Punjab - (1980) 2 SCC 684 . Therein, validity of Section 302 IPC (which authorises imposition of death sentence) was upheld while concurring with the view expressed by it in earlier judgment in Ediga Annamma v. State of Andhra Pradesh, (1974) 4 SCC 443 , laying down the principle. It is adhered to till date, which are that (i) 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. 46. 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. 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, and (iv) a balance sheet of aggravating and mitigating circumstances has to be drawn and, in doing so, the mitigating circumstances have to be accorded full weightage. A just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised. 47. The principles laid down by the Supreme Court in the case of Bachan Singh(supra), were best summarised in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 . Para 38 of the judgment aforesaid, is reproduced as under:- "38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. Para 38 of the judgment aforesaid, is reproduced as under:- "38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case (supra): (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." 48. The Supreme Court in Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles by revisiting Bachan Singh's case and Machhi Singh's case and observed in Para 58 as under:- "58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community 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, the same can be awarded. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community." 49. In Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740 , judgment of High Court confirming death sentence awarded to the appellant was challenged before the Supreme Court. The appellant in that case was convicted for offence under Sections 363, 366, 376, 397 and 302 of the IPC. The matter was laid before two-Judges bench of the Supreme Court. The Hon'ble Judges though upheld conviction of the accused but differed on the question of sentence. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in the case of "Rameshbhai Chandubhai Rathod (2) v. State of Gujarat", (2011) 2 SCC 764 , answered the reference. It relied on earlier two judgments in the case of "Ramraj v. State of Chhattisgarh", (2010) 1 SCC 573 and "Mulla and Another v. State of Uttar Pradesh", (2010) 3 SCC 508 . It relied on earlier two judgments in the case of "Ramraj v. State of Chhattisgarh", (2010) 1 SCC 573 and "Mulla and Another v. State of Uttar Pradesh", (2010) 3 SCC 508 . The death sentence awarded to the accused was commuted to life imprisonment to the full life of the appellant, subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 50. The Apex Court held that life imprisonment is a rule and death sentence is an exception. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case (supra), in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court shall always take into consideration manner and motive of commission of murder. Para 33 and 34 of the judgment in the case of Machhi Singh(supra) in extenso:- "I. Manner of Commission of Murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland." 51. The Apex Court in the case of "Swamy Shraddananda v. State of Karnataka", AIR 2008 SC 3040 , was dealing with a case of murder convict. (c) a murder is committed in the course for betrayal of the motherland." 51. The Apex Court in the case of "Swamy Shraddananda v. State of Karnataka", AIR 2008 SC 3040 , was dealing with a case of murder convict. The case was just fall short of the rarest of the rare category thus felt reluctant in endorsing the death sentence, but, at the same time, having regard to the nature of the crime, found sentence of life imprisonment, which, subject to remission, normally works out to a term of 14 years, would be grossly disproportionate and inadequate. The Supreme Court held that in such a case, just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years imprisonment and death. The Court can substitute death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict would not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. The Supreme Court, therefore, while commuting the death sentence, directed that the convict would not be released from the prison for the rest of his life or for the actual term as specified in the order. 52. In the case of "Neel Kumar @ Anil Kumar v. State of Haryana", (2012) 5 SCC 766 , accused was convicted for rape and murder of his four years old daughter. In the facts and circumstances of the case, the Supreme Court did not find the same to be a rarest of rare case. Considering, however, the nature of the offence, age and relationship of the victim with the convict and gravity of injuries caused to the victim, the Supreme Court did not find that to be a fit case to award lenient punishment to the convict and he was sentenced for a term of 30 years without remission before consideration of his case for premature release. 53. In "Shankar Kisanrao Khade v. State of Maharashtra", 2013 Cri.L.J. 2595, the death sentence was commuted to life imprisonment with a direction that he shall not be released for rest of his life. 53. In "Shankar Kisanrao Khade v. State of Maharashtra", 2013 Cri.L.J. 2595, the death sentence was commuted to life imprisonment with a direction that he shall not be released for rest of his life. It was a case of repeated rape and sodomisation and then murder by strangulation of a minor girl of 11 years with intellectual disability by a men of 52 years. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and that special reasons are required to be recorded for awarding death sentence but no special reasons are required to be recorded for awarding life imprisonment. Death sentence awarded to the accused was commuted to life imprisonment with direction that he shall not be released for rest of his life. 54. In view of the judgments referred to above, we need to analyse the present case as to whether death penalty can be confirmed or to be commuted. We find that accused is at the age of 20 years and recently got married. 55. It is also stated that appellant is not having any criminal background. The aforesaid is to be taken into consideration to analyse the mitigating circumstances and for drawing balance-sheet. If the medical report and other evidences are taken into consideration, we do not find it to be a case falling in the category of rarest of rare case so as to confirm the death sentence. In this regard, even the judgments (supra) given by the MP High Court have been considered. We find that facts of those cases are altogether different. In those cases, not only there was commission of offence under Section 376 IPC but an offence under Section 302 IPC. It may fall in the category of rarest of rare case so as to give death penalty. 56. The act of the accused cannot be said to be brutal in nature so as to confirm the death penalty. It is no doubt necessary to remain sensitive for the offence committed against the female child. The imposition of death penalty cannot be taken for restoration or a measure to stop crime but to be after considering facts of the case and not of the criminal. It is no doubt necessary to remain sensitive for the offence committed against the female child. The imposition of death penalty cannot be taken for restoration or a measure to stop crime but to be after considering facts of the case and not of the criminal. In view of the finding recorded above, we are unable to confirm death sentence given by trial court and accordingly cause interference in the sentence. The death sentence is commuted to life imprisonment for a period of 20 years with penalty of Rs. 50,000/-, in case of default of payment, to further undergo six months simple imprisonment. It is the minimum punishment after the amendment. With the aforesaid, we answer the death reference. 57. The appellant is sentenced to life imprisonment with penalty of Rs. 10,000/-, in case of default of payment, to further undergo three months simple imprisonment for the offence under section 5(m)/6 of POCSO Act. 58. The sentence of the appellant for other offences is maintained, as given by the trial court for the offences under Sections 363 and 366 IPC. All the sentences would run concurrently. 59. We dispose of the appeal as well as answer the reference sent by trial court. The amount of fine would be paid to the victim's father, as has been directed by trial court. The amount of fine would be in addition to victim compensation, if any. 60. A copy of this order be placed in the connected file.