JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in the aforesaid murder reference and appeal, therefore these are taken up together and disposed of by a common judgment. 2. Murder Reference No.03 of 2019 has been received from the Sessions Judge, Mansa, for confirmation of death sentence awarded to Makhan Singh, aged 42 years, son of Dalel Singh, resident of Fatta Maloka, Tehsil Sardulgarh, as per judgment dated 08.04.2019 and order dated 10.04.2019. 3. Criminal Appeal No.D-375-2019 has been preferred by appellant Makhan Singh against the aforesaid judgment dated 08.04.2019 and order dated 10.04.2019 passed in Sessions Case no.69 dated 17.05.2015 by Sessions Judge, Mansa, whereby the appellant along with co-accused Sukhwinder Singh, Falel Singh and Jagtar Singh was charged with and tried for offences punishable under Sections 302, 307, 341, 427 read with Section 34 of the Indian Penal Code (in short 'IPC') and under Sections 25, 27/54/59 of Arms Act. The appellant has been convicted and sentenced as under:- Offence Punishment Under Section 302 IPC Death sentence Under Section 307 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.15,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months Under Section 25 of Arms Act To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month However, co-accused Sukhwinder Singh and Jagtar Singh were acquitted. Co-accused Falel Singh died during the pendency of trial. 4. The case of the prosecution in a nutshell is that on 16.04.2015 SI/SHO Jaskaran Singh along with other police officials was present at Bus Stand, Fatta Maloka, in connection with patrolling duty. Complainant Gurpiar Singh alias Mithu Singh met him. He got recorded his statement to the effect that he was physical teacher at Genuis Secondary School, Sardulgarh. He had performed love marriage with Simarjit Kaur on 29.09.2014. She was working as a teacher at Government Primary Girls School, Sardulgarh. They used to go to Sardulgarh from Fatta Maloka daily on motorcycle. On that day, Simarjit Kaur was pillion rider. He got recorded his statement to the effect that he was physical teacher at Genuis Secondary School, Sardulgarh. He had performed love marriage with Simarjit Kaur on 29.09.2014. She was working as a teacher at Government Primary Girls School, Sardulgarh. They used to go to Sardulgarh from Fatta Maloka daily on motorcycle. On that day, Simarjit Kaur was pillion rider. When they reached near Gill Petrol Pump on main road from Fatta Maloka to Sardulgarh at about 7.45 A.M., a car hit their motor cycle from rear. He along with his wife fell down from the motor cycle. Gamdoor Singh, Buta Singh, Sukhwinder singh alias Kala, Babbi alias Jaspreet Singh and Gagandeep Singh Ratia alighted from the car. Makhan Singh and Jaggi Singh came from the petrol pump side. Makhan Singh was armed with pistol. He fired shot from his pistol. It hit on the right side of chest of Simarjit Kaur. He fired another shot which hit on the right side of forehead of Simarjit Kaur. The complainant was attacked from the backside of his head with a sharp object by the co-accused. He rescued himself. He went to field. People started gathering on the spot. The assailants ran away from the spot. He went near his wife. She was lying on the ground drenched with blood. She was dead. She was murdered by Makhan Sigh, Sukhwinder Singh alias Kala, Babbi alias Jaspreet, Buta Singh, Jaggi Singh and Gagandeep Singh in connivance with each other since they were not happy with their love marriage. They also inflicted injury on his head with intention to kill him. The complaint was recorded. FIR was registered. Body was sent for post-mortem examination. Accused Makhan Singh was arrested on 19.04.2015 along with one country made pistol of .315 bore along with two live cartridges. Investigation was completed. Challan was presented after completing all the codal formalities. 5. Prosecution examined a number of witnesses. The statements of accused were recorded under Section 313 Cr.P.C. They have denied the case of prosecution. Six witnesses were examined by the accused in their defence. 6. The appellant was convicted and sentenced to death as noticed hereinabove. Hence the death reference by the learned Sessions Judge, Mansa, for confirmation of death sentence and the appeal against conviction and sentence of the appellant. 7. Six witnesses were examined by the accused in their defence. 6. The appellant was convicted and sentenced to death as noticed hereinabove. Hence the death reference by the learned Sessions Judge, Mansa, for confirmation of death sentence and the appeal against conviction and sentence of the appellant. 7. Learned counsel appearing for the appellant (convict) has vehemently argued that the prosecution has failed to prove its case against the appellant. 8. Learned counsel appearing on behalf of the State has supported the prosecution case. 9. We have heard learned counsel for the parties and have gone through the judgment and record very carefully. 10. Pw-2 Dr. Vivek Bharmota had led evidence by filing his affidavit Ex.PA. He proved Ex.PB MLR of Gurpiar Singh. In his cross-examination, he admitted that there was no tattooing and blackening around the injuries. According to record, there was no firearm phenomenon. He had not given the nature of injury when the patient was admitted. Patient did not give any history of firearm injury. The opinion Ex.PF about the nature of injury was given by him after about three months of the MLR. The patient was not with him when he gave the opinion Ex.PF. He had not extracted any radio opaque object from the injury. He had not assigned reason for giving opinion Ex.PF declaring injury no.1 to be dangerous to life. He noticed, as per affidavit, multiple lacerations on upper back left side, 2 lacerations of size 0.5 cm and 3rd of size 1.5 cm. Fresh blood was present. He also noticed laceration on back of head of size 5 cm x 1 cm. Fresh bleeding was present. 11. Pw-1 Gurpiar Singh deposed that he was posted as Physical teacher at Genius Senior Secondary School, Sardulgarh. On 29.09.2014 he performed love marriage with Simarjit Kaur. He along with Simarjit Kaur was going to place of their work on motor cycle on 16.04.2015. When they reached the main road from Fatta Maloka to Sardulgarh near Gill Petrol Pump at about 7.45 A.M., one Zen car bearing registration no.HR-51-C4564 was struck with their motor cycle. He and Simarjit Kaur fell down from the motor cycle. From the car, Gamdoor Singh, Buta Singh, Sukhwinder Singh @ Kala, Babbi @ Jaspreet and Gagandeep Singh got down. From the side of petrol pump, Makhan Singh and Jaggi Singh came on the spot. They surrounded them. He and Simarjit Kaur fell down from the motor cycle. From the car, Gamdoor Singh, Buta Singh, Sukhwinder Singh @ Kala, Babbi @ Jaspreet and Gagandeep Singh got down. From the side of petrol pump, Makhan Singh and Jaggi Singh came on the spot. They surrounded them. Makhan Singh was armed with pistol. He fired shot from his pistol on the right side of chest of his wife Simarjit Kaur. He fired another shot on the right side of forehead of his wife Simarjit Kaur. He tried to save her. He was inflicted blow on the back of his head with some sharp edged article. He managed to escape. He went towards the field. The assailants fled away from the spot. His wife was smeared with blood. She was dead. Accused were not happy with their love marriage. He called his uncle (chacha) Paramjit Singh. He along with his uncle Paramjit Singh was going to report the matter to the police. Police met them on the way. His statement Ex.PW1/A was recorded. He along with ASI Baldev Singh went to the spot. ASI Baldev Singh had lifted blood stained earth and simple earth from the spot. Police lifted two empty cartridges of .315 bore from the spot. Due to nervousness, he could not tell to the police that Makhan Singh fired from his pistol on his left shoulder with an intention to kill him. He could not tell to the police that his wife was pregnant of 3-4 months. He identified Makhan Singh and Sukhwinder Singh accused in the Court. In his cross-examination, he deposed that they did not sustain any injury after falling from the motor cycle. He was at the distance of 3' from Simarjit Kaur when she suffered shot. He grappled with the assailants. He tried to snatch the weapon. Nobody came on the spot. He called his uncle at 8.00 A.M. Petrol pump was named as Gill Petrol Pump. There were 1 or 2 employees at the said petrol pump. They did not come on the spot. 12. Pw-3 Amrik Singh is brother of Gurpiar Singh. According to him, due to love marriage there was life threat to his brother Gurpiar Singh. He was also facing threat from Gamdoor Singh, Buta singh, Kala Singh, Babbi and Jaggi. On 16.04.2015 he was present at Petrol Pump, Sirsa road, Sardulgarh. They did not come on the spot. 12. Pw-3 Amrik Singh is brother of Gurpiar Singh. According to him, due to love marriage there was life threat to his brother Gurpiar Singh. He was also facing threat from Gamdoor Singh, Buta singh, Kala Singh, Babbi and Jaggi. On 16.04.2015 he was present at Petrol Pump, Sirsa road, Sardulgarh. At about 7.45 A.M. his brother Gurpiar Singh was surrounded by Gamdoor Singh, Buta Singh, Kala Signh, Babbi, Jaggi, Makhan Singh, Daler Singh, Nirbhai Singh, Jagtar Singh and Gagandeep Singh at petrol pump. He came to the petrol pump. He was waiting for his brother. His brother along with Simarjit Kaur was coming on a black coloured motor cycle. A white coloured Zen car came from the back side. It struck against the motor cycle causing the occupants of motor cycle to fell on the ground. Car was being driven by Gagandeep Singh. Makhan Singh fired at the forehead of Simarjit Kaur. Gagandeep Singh gave a patti blow on the back of the head of his brother Gurpiar Singh. His brother ran away from the spot. Makhan Singh fired at the forehead of Simarjit Kaur and another shot at her chest. When his brother Gurpiar Singh was running, a shot was fired at him by Makhan Singh, which hit on the back of his brother Gurpiar Singh. Police reached the spot. 13. Pw-6 Paramjit Singh alias Pamma deposed that on 29.09.2014 Simarjit Kaur had solemnized love marriage with Gurpiar Singh. On 16.04.2015 at about 7.45 A.M. his nephew Gurpiar Singh called him on phone and informed him that Makhan Singh, Jaggi Singh, Gamdoor Singh, Buta Singh, Sukhwinder Singh alias Kala, Babbi Singh alias Jaspreet and Gagandeep Singh had tried to crush his nephew Gurpiar Singh under their car. They fired at Simarjit Kaur. They fired two shots at Simarjit Kaur. The first fire hit Simarjit Kaur above her right breast and second one hit on her forehead. They also fired third one at the back of Gurpiar Singh. 14. Pw-8 Dr.Vikramjit Singh Chouhan conducted the post-mortem examination. The cause of death was due to haemorrhage and shock due to injury no.2 as described due to fire arm injury. It was ante mortem in nature and was sufficient to cause death in ordinary course of nature of life. 15. Pw-9 Baldev Singh had prepared scaled map of the spot Ex.PW9/A. 16. The cause of death was due to haemorrhage and shock due to injury no.2 as described due to fire arm injury. It was ante mortem in nature and was sufficient to cause death in ordinary course of nature of life. 15. Pw-9 Baldev Singh had prepared scaled map of the spot Ex.PW9/A. 16. Pw-10 Inspector Jaskaran Singh went to the spot. He prepared site plan. He recorded the statements. He lifted simple soil and blood stained soil from the spot. HC Mukhinder Singh had handed over him fired bullet extracted from the dead body of the deceased during post-mortem. It was taken into possession vide memo Ex.PW10/I. MLR of injured Gurpiar Singh was also received. 17. Pw-12 ASI Baldev Singh went to the spot along with SHO. SHO/SI Jaskaran Singh lifted simple soil and blood stained soil from the spot. Motor cycle was taken into possession. Dead body of Simarjit Kaur was sent for post-mortem examination. On 17.04.2015 he went along with I.O./SHO to SDH, Sardulgarh where Gurpiar Singh handed over to I.O. one trouser and one shirt. These were stained with blood. Shirt had a hole at its back. These were converted into sample. Makhan Singh made a disclosure statement with regard to pistol .315 bore. He got it recovered. The disclosure statement is Ex.PW12/C. The other co-accused were also arrested. 18. Pw-15 SI Anoop Singh (retired) testified that he was posted at Police Station Jhunir on 13.08.2015. Accused Falel Singh was interrogated. Car bearing no.HR-51C-4564 was taken into possession. 19. Dw-1 Jagdeep Singh had produced the record, i.e. rapt roznamcha. He proved the entries Ex.DW1/A and Ex.DW1/B. In his cross-examination, he deposed that he had no personal knowledge regarding the contents of Ex.DW1/A and Ex.DW1/B. 20. Dw-3 Amrik Singh deposed that he was ex-Sarpanch of village Fatta Maloka. On 16.04.2015 at about 8.00/8.15 A.M. he was standing in the common place of village Fatta Maloka. Makhan Singh, Paramjit Singh, Ranjit Singh member panchayat were standing there. They were talking to each other. Paramjit Singh received a mobile call. Makhan Singh was standing with them from 7.45 A.M. 21. Dw-4 Ranjit Singh deposed that he was member panchayat of village Fatta Maloka. About 2/3 years back, he was standing in the common place of village Fatta Maloka. Makhan Singh, Paramjit Singh and Amrik Singh were standing there. They were talking with each other. Paramjit Singh received a mobile call. Makhan Singh was standing with them from 7.45 A.M. 21. Dw-4 Ranjit Singh deposed that he was member panchayat of village Fatta Maloka. About 2/3 years back, he was standing in the common place of village Fatta Maloka. Makhan Singh, Paramjit Singh and Amrik Singh were standing there. They were talking with each other. Paramjit Singh had received a mobile call. Makhan Singh was with them from 7.45 A.M. 22. Dw-5 Harbaksh Singh Mander had compared the disputed signatures marked as Q-1 to Q-4 with the standard signatures of Paramjit Singh marked as S-1 to S-4. 23. Dw-6 Bagga Singh deposed that Makhan Singh was standing with them on 16.04.2015 at about 8.15 A.M. 24. According to the post-mortem report Ex.PW8/B, probable time that elapsed between injury and death was variable and between death and post-mortem examination was within 12 hours. 25. According to FSL report Ex.PX, exhibits marked A-1 pant, marked A-2 shirt and soil were stained with human blood. According to FSL report Ex.PY, one country made pistol marked W/1 contained in parcel B was in working condition. Two 0.315 inch 'KF' cartridge cases marked C/1 and C/3 contained in parcel A had been fired from country made pistol marked W/1 contained in parcel B. However, no definite opinion could be given with respect of one 0.315 inch 'KF' cartridge case marked C/2 contained in parcel A as to whether it had been fired from country made pistol marked W/1 contained in parcel B or not due to lack of sufficient individual characteristic marks. Two 0.315 inch 'KF' cartridges marked L/1 and L/2 contained in parcel B were live cartridges. The caliber of two jacketed bullets marked CB/1 and CB/2 respectively contained in parcels marked C and D were 0.315 inch. 26. Complainant Gurpiar Singh had solemnized marriage with Simarjit Kaur on 29.09.2014. He appeared as PW-1. According to him, Makhan Singh fired shots at his wife. These proved fatal. In his statement vide Ex.PW1/A and initial portion of his examination-in-chief, he deposed that he was hit on back side of his head with some sharp edged object. In later portion of his examination-in-chief, he admitted that Makhan Singh fired shot at him to kill him. Statement of PW-3 Amrik Singh does not inspire confidence. His statement under Section 161 Cr.P.C. was recorded after 15 days of the occurrence. In later portion of his examination-in-chief, he admitted that Makhan Singh fired shot at him to kill him. Statement of PW-3 Amrik Singh does not inspire confidence. His statement under Section 161 Cr.P.C. was recorded after 15 days of the occurrence. There is no mentioning of his name in the FIR. He had also not intervened to save his sister-in-law. The cause of death was haemorrhage and shock due to fire arm injury. The motive attributed to Makhan Singh is that family of deceased Simarjit Kaur was not happy with her love marriage. Accused had reached the spot in a car. Makhan Singh and co-accused had appeared from the side of petrol pump. Weapon of offence, i.e. .315 bore pistol was got recovered by Makhan Singh on the basis of his disclosure statement. Blood stained trouser and shirt of Gurpiar Singh were also taken into possession. These were smeared with blood. According to FSL report, Ex.PY, two 0.315 inch 'KF' cartridge cases marked C/1 and C/3 were fired from country made pistol marked W/1. Country made pistol marked W/1 was in working condition. Two 0.315 inch 'KF' cartridges marked L/1 and L/2 were live cartridges. The caliber of two jacketed bullets marked CB/1 and CB/2 respectively contained in parcels marked C and D under reference were 0.315 inch. 27. The appellant has relied upon statement of DW-3 Amrik Singh, DW-4 Ranjit Singh and DW-6 Bagga Singh to prove that he was not present at the spot on 16.04.2015. However, the fact of matter is that appellant Makhan Singh was on the spot and he had fired at Simarjit Kaur twice. Simarjit Kaur was pregnant at the time of death. The complainant has not mentioned about being fired at him by Makhan Singh in the FIR. According to him, he was nervous. In the FIR and initial part of the examination-in-chief, he has only deposed that somebody had hit on his back. It is not believable that PW-1 Gurpiar Singh was not aware being fired at. PW-2 Dr.Vivek Bharmota had noticed multiple lacerations on upper back left side and three lacerations. It is also mentioned in the affidavit that kind of weapon used in all the injuries was blunt and probable duration of injuries was within six hours. His opinion Ex.PF about the nature of injury was given after about three months of preparation of the MLR. It is also mentioned in the affidavit that kind of weapon used in all the injuries was blunt and probable duration of injuries was within six hours. His opinion Ex.PF about the nature of injury was given after about three months of preparation of the MLR. When he gave opinion Ex.PF, the patient was not with him. He had given his opinion on 14.07.2015 to the effect that injury no.1 could be caused by firearm of a foreign object (bullet). Injury no.1 could be dangerous to life. In MLR Ex.PB what is mentioned that patient is of physical assault. In his cross-examination PW-2 Dr.Vivek Bharmota specifically admitted that in a firearm injury, the entry wound had inverted margins. There was no inverted margins in any of the injuries mentioned in MLR Ex.PB. There was no tattooing and blackening around the injuries. In the record, there was no firearm phenomenon. In the bed head ticket, patient did not give any history of firearm injury, rather patient had given history of physical assault. He had given the nature of weapon as blunt for both the injuries. 28. The fact of the matter is that the prosecution has proved that appellant Makhan Singh had fired two shots at Simarjit Kaur. She died on the spot. PW-1 Gurpiar Singh had seen Makhan Singh shooting at Simarjit Kaur. The prosecution has failed to prove the case against the appellant under Section 307 IPC. He had received only three injuries as per MLR which were caused by blunt weapon. PW-2 Dr.Vivek Bharmota has changed his opinion after three months by stating that injury no.1 could be caused by blunt which was contrary to the medical report. The appellant has been sentenced to death. However, we are of the considered opinion that this case would not fall within the ambit of rarest of the rare cases and the death sentence is required to be commuted to life imprisonment. 29. Their Lordships of the Hon'ble Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 , have categorically held that the death penalty is to be imposed only when the alternative of life imprisonment is totally inadequate, and therefore unquestionably foreclosed, i.e. if it is the only inevitable conclusion. The aggravating circumstances shall also be taken into consideration. 30. Their Lordships of Hon'ble Supreme Court in the case of C. Muniappan and others Vs. The aggravating circumstances shall also be taken into consideration. 30. Their Lordships of Hon'ble Supreme Court in the case of C. Muniappan and others Vs. State of Tamil Nadu, (2010) 9 SCC 567 along with connected appeal, have laid down the social effect of punishment and proportional considerations, when the principle of rarest of rare is to be applied. Their Lordships have further held that death sentence can be given in rarest of rare cases if the "collective conscience" of a community is so shocked that death penalty is the only alternative. The "rarest of the rare cases" comes when the convict would be a menace and threat to the harmonious and peaceful coexistence of the society. Their Lordships have also held as under :- "87. In Machhi Singh v. State of Punjab this Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community is so shocked that it will expect the holders of the judicial powers to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, and stated that in these cases such a penalty should 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 aggravating and mitigating circumstances. The Court further held that the relevant factors to be taken into consideration may be motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as: (i) Murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community. (ii) Murder of a large number of persons of a particular caste, community, or locality, is committed. (iii) Murder of an innocent child; a helpless woman, is committed. xxx xxx xxx 91. Thus, it is evident that criminal law requires strict adherence to the rule of proportionality in providing punishment according to the culpability of each kind of criminal conduct keeping in mind the effect of not awarding just punishment on the society. 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 "rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. Where an accused does not act on any spur of the moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime. 92. Life imprisonment is the rule and death penalty an exception. Therefore, the court must satisfy itself that death penalty would be the only punishment which can be meted out to a convict. The court has to consider whether any other punishment would be completely inadequate and what would be the mitigating and aggravating circumstances in the case. Murder is always foul, however, the degree of brutality, depravity and diabolic nature differ in each case. Circumstances under which murders take place also differ from case to case and there cannot be a straitjacket formula for deciding upon circumstances under which death penalty must be awarded. In such matters, it is not only the nature of crime, but the background of criminal, his psychology, his social conditions, his mindset for committing offence and effect of imposing alternative punishment on the society are also relevant factors." 31. Their Lordships of Hon'ble Supreme Court in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, (2011) 2 SCC 490 , have explained the principles for imposition of death sentence. Their Lordships have also held as under :- "90. Though the trial court awarded death sentence for Dara Singh, the High Court after considering the entire materials and finding that it is not a rarest of the rare case, commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh v. State of Punjab, Machhi Singh v. State of Punjab and Kehar Singh v. State (Delhi Admn.). It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the for the rarest of rare cases. 91. It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the for the rarest of rare cases. 91. Whether a case falls within the rarest of the rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. However, more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paras." 32. Their Lordships of Hon'ble Supreme Court in the case of Mohd. Mannan @ Abdul Mannan Vs. State of Bihar, (2011) 5 SCC 317 , have discussed the broad guidelines for imposition of death penalty. Their Lordships have also held as under :- "23. It is trite that death sentence can be inflicted only in a case which comes within the category of the rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as the rarest of rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard-and-fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive. 24. Further, crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot bereformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court has laid down for imposition of the death penalty. 25. When we test the present case bearing in mind what has been observed, we are of the opinion that the case in hand falls in the category of the rarest of rare cases. The appellant is a matured man aged about 43 years. He held a position of trust and misused the same in a calculated and pre-planned manner. He sent the girl aged about 7 years to buy betel and few minutes thereafter in order to execute his diabolical and grotesque desire proceeded towards the shop where she was sent. The girl was aged about 7 years of thin built and 4 ft of height and such a child was incapable of arousing lust in normal situation. The appellant had won the trust of the child and she did not understand the desire of the appellant which would be evident from the fact that while she was being taken away by the appellant no protest was made and the innocent child was made prey of the appellant's lust. 26. The post-mortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. 26. The post-mortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate is to inflict the death sentence which is natural and logical. We are of the opinion that the appellant is a menace to the society and shall continue to be so and he cannot be reformed. We have no manner of doubt that the case in hand falls in the category of the rarest of rare cases and the trial court had correctly inflicted the death sentence which had rightly been confirmed by the High Court. 33. In the case of "Shatrughan Chauhan & another vs. Union of India & others, (2014) 3 SCC 1 ", their Lordships of the Hon'ble Supreme Court reiterated the principles as under:- "90. It was, therefore, held in Sunil Batra case that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners "under sentence of death". The crucial holding under Section 30(2) is that a person is not "under sentence of death", even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not "under sentence of death" even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be "under sentence of death" means "to be under a finally executable death sentence". 91. Even in Triveniben, this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra and would amount to inflicting "additional and separate" punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra." 34. Consequently, the appeal filed by the appellant is partly allowed and death sentence awarded to the appellant under Section 302 IPC is commuted to life imprisonment out of which the appellant would have to mandatorily serve out minimum 20 years without remission and to pay a fine of Rs.20,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year. The sentence imposed upon the appellant under Section 25 of the Arms Act is upheld. The appellant is acquitted for offence under Section 307 IPC. The murder reference No.3 of 2019 is answered accordingly.