JUDGMENT R. Subhash Reddy, J. I have gone through the opinion of my learned Brother, Surya Kant, J. I am in agreement with the view expressed in the said judgment, to the extent of confirming the conviction recorded against the appellant, for the offence under Sections 363, 376, 377 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’). However, as I am of the view that, this is nota fit case where the appellant is to be awarded capital punishment, i.e, death penalty, as such, I wish to share my view separately, in this judgment. 2. The appellant was tried for committing the rape and murder on the minor girl child “Zoyabano” and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him. 3. By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/- (Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently. 4. The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals. 5. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals. 5. I am in agreement with the view expressed by my learned Brother, to the extent of upholding conviction, as such, there is no need to appreciatethe evidence on-record in detail. As such, I confineconsideration of such evidence on-record to the extent to modify the sentence on the appellant. 6. For the conviction recorded against the appellant for the offences alleged against him, by balancing the aggravated and mitigated circumstances, I am of the view that the death sentence imposed on the appellant requires modification to that of the lifeimprisonment, without any remission, for the following reasons. 7. For the offence under Section 302 of IPC the punishment prescribed for committing murder is deathor imprisonment for life. At first instance, challenge to Section 302 of IPC was turned down by this Court in the case of Jagmohan Singh v. State of Uttar Pradesh 1973(1) SCC 20 . Further, in Constitution Bench, this Court in the case of Bachan Singh v. State of Punjab 1980(2) SCC 684 , concluded that Section 302, providing death penalty for offence of murder is constitutional. In the aforesaid judgment, this Court has indicated the standards and norms, restricting the area for imposition of death penalty. Further, for considering the imposition of sentence of death, aggravating and mitigating circumstances were also broadly indicated. In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302, IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case. The aggravating and mitigating circumstances, as suggested by Dr. Chitale were mentioned in the Judgment. Paragraphs 202 to 207 of the judgment reads as under: “202. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case. The aggravating and mitigating circumstances, as suggested by Dr. Chitale were mentioned in the Judgment. Paragraphs 202 to 207 of the judgment reads as under: “202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these “aggravating circumstances”: “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. 204. 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. 204. In Rajendra Prasad [ (1979) 3 SCC 646 : 1979 SCC (Cri) 749], the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)”. Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302 of the Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its “ethos” nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 of the Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W.B. [ (1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows the dictum in Rajendra Prasad [ (1979) 3 SCC 646 : 1979 SCC (Cri) 749]. 205. In several countries which have retained death penalty, pre-planned murderfor monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first-degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of “special reasons” in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. 206. Dr Chitale has suggested these mitigating factors: “Mitigating circumstances – In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy 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 impaired 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. Some of these factors like extreme youth can instead be of compelling importance. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a “child”, that is, “a person who at the date of murder was less than 16 years of age”, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.” 8. Further in the three Judge Bench Judgment of this Court, in the case of Machhi Singh and Ors. v. State of Punjab 1983(3) SCC 470 , this Court has considered tests to determine “rarest of rare” case, to impose death sentence under Section 302 IPC. 9. In the aforesaid judgment, this Court has held that the following questions may be asked and answered, in order to apply the guidelines indicated in Bachan Singh case2, where the question of imposing the death sentence arises. (a) Is there something uncommon about the crime which renders sentence for 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? 10. In this judgment, it is held by this Court that the guidelines indicated in Bachan Singh case, will have to be culled out and applied to the facts of each individual case, where the question of imposing death sentence arises. Paragraph 38 of the said judgment reads as under: “38. In this background the guidelines indicated in Bachan Singh case 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 prepositions emerge from Bachan 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. (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. 11. In this judgment, on facts, by holding that it is a cold-blooded, calculated and gruesome multiple murders, as a reprisal in a family feud and 17 helpless, defenceless, innocent men, women and children were gunned down while asleep on the same night in quick succession in different neighbouring villages, confirmed the death sentence imposed on Machhi Singh and two others. 12. In this case, learned counsel for the appellant has contended that the Trial Court as well as the High Court, fell in error in confining nature and brutality of crime alone, to award the sentence of death. It is submitted that nature of crime alone is not sufficient to impose the sentence of death, unless State proves by leading cogent evidence that the convict is beyond reform and rehabilitation. It is submitted that the socio-economic conditions of the convict and the circumstances under which crime is committed are equally relevant for the purpose of considering whether a death penalty is to be imposed or not. It is submitted that as the case on hand, rests on circumstantial evidence, same is also the ground not to impose capital punishment, of death. 13. In support of his argument, learned counsel for the appellant has relied on the three Judge Bench Judgment of this Court, in the case of Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 , wherein the accused was charged for offence of abduction, rape and murder of 4 year old girl child, death sentence was commuted to life imprisonment. Paragraphs 32 and 33 of the said judgment reads as under: “32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine’sauthority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life. 33. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case [Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499] : (SCC pp. 361-62, para 7) “7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in a Changing Society stated that: ‘State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.” 14. In the case of Lehna v. State of Haryana (2002) 3 SCC 76 , it was held that the special reasons for awarding the death sentence must be such that compel the court to conclude that it is not possible to reform and rehabilitate the offender. In the case of Lehna v. State of Haryana (2002) 3 SCC 76 , it was held that the special reasons for awarding the death sentence must be such that compel the court to conclude that it is not possible to reform and rehabilitate the offender. Paragraph 14 of the said judgment reads as under: “......Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898, (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever itis possible to do so and to state “special reasons” if it does not do so. In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.” 15. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.” 15. Learned counsel for the appellant has also relied on the three Judge Bench Judgment of this Court, in the case of Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 , wherein the accused, aged about 25 years at the relevant time, wascharged for offence of rape and murder of 4 year oldchild, death sentence was commuted to that of life imprisonment. In the said judgment, this Court has held that one of the compelling/mitigating circumstances that must be acknowledged in favour of the appellant is his young age at which he had committed the crime and further that the accused can be reformed and rehabilitated, are the other circumstances which could not but have been ignored by courts below. 16. Reliance is also placed by learned counsel for the appellant, on the three Judge Bench Judgment of this Court, in the case of Rajendra Pralhaderao Wasnik v. State of Maharashtra Review Petition (Criminal) Nos. 306-307 of 2013, where accused was found guilty of rape and murder of 3 year old child, death sentence was substituted by life imprisonment, with a rider that the convict shall not be released from custody for the rest of his normal life. 17. The aforesaid three judgments relied on by the learned counsel for the appellant, supports the case of the appellant, when we consider to balance the aggravating and mitigating circumstances of this case on hand. 18. From the deposition of PW-9, it is clear that he is a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resides in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. 18. From the deposition of PW-9, it is clear that he is a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resides in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. As such, it is clear that on the day of occurrence, he was under influence of liquor and he is aged about 25 years and he had no previous history of any crimes and in absence of any evidence from the side of the prosecution to show that he cannot be reformed and rehabilitated to bring in to the main stream of the society, the judgments relied on by learned counsel for the appellant, fully support the case of the appellant, to modify the sentence. 19. In the case of Machhi Singh and Ors. v. State of Punjab, this Court has confirmed that the death sentence to Machhi Singh and two others, mainly by recording a finding that it was a cold-blooded, calculated and gruesome murders, as a reprisal in a family feud, in which, 17 helpless, defenceless, innocent men, women and children were gunned down, as such, same can be termed as “rarest of rare” case. In the case on hand, it cannot be said to be a preplanned and pre-meditated one. To record a finding that a particular crime committed is a pre-planned and pre-meditated one, something more is required of planning to commit a murder on a day earlier to the date of occurrence. In the case on hand, where it is clear from the evidence on-record that the appellant was under influence of liquor and committed the offence, cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances. 20. In the case of Sandesh v. State of Maharashtra (2013) 2 SCC 479 , this Court, once again, acknowledged the principle that it is for the prosecution to lead evidence, to show that there is no possibility that the convict cannot be reformed. Similarly, in Mohinder Singh v. State of Punjab (2013) 3 SCC 294 , it was held in Paragraph 23 of the judgment as under: “......As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Similarly, in Mohinder Singh v. State of Punjab (2013) 3 SCC 294 , it was held in Paragraph 23 of the judgment as under: “......As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.” 21. In the case of Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC 317 , this Court acknowledged that among various factors, one of the factors required to be taken into consideration, for awarding or not awarding capital punishment, is the possibility of reformation and rehabilitation of the convict. This acknowledgment was made in paragraph 103 of the judgment, which reads as under: “103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.” 22. In the case of Amit v. State of Maharashtra (2003) 8 SCC 93 , this Court adverted to the prior history of the accused and noted that there is no record of any previous heinous crime and also there is no evidence that he would be a danger to the society if the death penalty is not awarded to him. Paragraph 10 of the said judgment reads as under: “10. The next question is of the sentence. Paragraph 10 of the said judgment reads as under: “10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases.......” 23. In the case of Surendra Pal Shivbalakpal v. State of Gujarat 2005 (3) SCC 127, this Court has held that the involvement in any previous criminal case by the accused, was considered to be a factor, to be taken into consideration, for the purpose of awarding death sentence. Paragraph 13 of the said judgment reads as under: “13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant onall the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.” 24. Further, this case on hand, rests solely on the circumstantial evidence. 25. In the case of Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 , this Court has held that ordinarily, death penalty would not be awarded, if the guilt of the accused is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. Paragraph 55 of the said judgment reads as under: “55. In the case of Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 , this Court has held that ordinarily, death penalty would not be awarded, if the guilt of the accused is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. Paragraph 55 of the said judgment reads as under: “55. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard tothe nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court inthis behalf, but it must be borne in mindthat the appellants are convicted only onthe basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.” 26. Further, in the case of Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230 , the principle that death penalty should ordinarily not to be awarded, in a case arising out of circumstantial evidence, was broadly accepted with the rider that there should be some “special reason” for awarding death penalty. Paragraph 174 of the said judgment reads as under: “174. There are some precedents of this Court e.g. Sahdeo v. State of U.P.[ (2004) 10 SCC 682 ] and Sk. Ishaque v. State of Bihar[ (1995) 3 SCC 392 ] which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do not find any special reason for awarding death penalty which is imperative.” 27. In the case of Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288 , this Court has held that the convictions based on seemingly conclusive circumstantial evidence, should not be presumed to be fool-proof. Paragraph 87 of the said judgment reads as under: “87. In the case of Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288 , this Court has held that the convictions based on seemingly conclusive circumstantial evidence, should not be presumed to be fool-proof. Paragraph 87 of the said judgment reads as under: “87. It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.” 28. From the above judgments referred, it is clear that in a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed. In a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, such cases, by considering balancing aspects of aggravating and mitigating circumstances, in appropriate cases, death penalty can be imposed. But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed. In this case on hand, the conviction of the appellant is mainly based on circumstantial evidence. On this ground also, I am of the view that the death sentence, imposed on him, is to be modified. 29. From the materials placed on record, it is clear that accused is a permanent resident of Indira Nagar, Jalna. The father of the deceased, PW-9, himself has stated that he is a fruit vendor in Nutan Vasahat area, Jalna, and accused also resides in the same lane, nearby his residence. It is also clear from the evidence of PW-9, to the East and West side of the house of the appellant, a person having buffaloes used to reside at the relevant time. It is also clear from the evidence of PW-9, to the East and West side of the house of the appellant, a person having buffaloes used to reside at the relevant time. From such evidence onrecord, it is easy to assess the socio-economic condition of the appellant and it can certainly be said that he is a person below poverty line. 30. In a judgment of this Court, in the case of Sunil Damodar Gaikwad v. State of Maharashtra (2014) 1 SCC 129 , while holding that court must not only look at the crime but also offender and to give due consideration to circumstances of offender, has further held that in imposing penalty, socio-economic condition can be considered as one of the mitigating factors, in addition to those indicated in Bachan Singh and Machhi Singh. Para 20 of the said judgment reads as under: “20. When there are binding decisions, judicial comity expects and requires the same to be followed. Judicial comity is anintegral part of judicial discipline and judicial discipline the cornerstone of judicial integrity. No doubt, in case there are newer dimensions not in conflict with the ratio of the larger Bench decisions or where there is anything to be added to and explained, it is always permissible to introduce the same. Poverty, socioeconomic, psychic compulsions, undeserved adversities in life are thus some of the mitigating factors to be considered, in addition to those indicated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2SCC 684 : 1980 SCC (Cri) 580] and MachhiSingh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] cases. Thus, we are bound to analyse the facts in the light of the aggravating and mitigating factors indicated in the binding decisions which have influenced the commission of the crime, the criminal, and his circumstances, while considering the sentence. 31. In view of the aforesaid judgments of this Court and evidence on record in this case, which establishes the socio-economic condition of the appellant, as aperson below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors. 32. I am conscious of recent amendments carried out to the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), by way of Protection of Children from Sexual Offences Amendment Act, 2019. 32. I am conscious of recent amendments carried out to the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), by way of Protection of Children from Sexual Offences Amendment Act, 2019. By virtue of the said amendments, taking note of increasing trend of crimes against the children, minimum sentence is increased for various offences and for offence under Section 6 of the Act i.e aggravated penetrative sexual assault, minimum imprisonment, which shall not be less than 20 years, which may extend to natural life or penalty of death. Prior to the amendments made by recent amending Act of 2019, for offence under POCSO, death penalty was not provided. By virtue of the amendments made in appropriate cases, for offences falling under provisions of the POCSO Act alone, a penalty of death sentence can be imposed. In the case on hand, the offence was committed prior to coming into force, of the Act. 33. Even then, we cannot forget the legislative intent which resulted in amendments to POCSO, while dealing with the offences against the children. At the same time, even for imposing the death sentence, for cases arising out of the provisions under POCSO Act, 2012, it is the duty of the courts to balance the aggravating and mitigating circumstances. To balance such aspects, the guidelines in Bachan Singh v. State of Punjab (1980) 2 SCC 684 and further reiterated in the case of Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 and in the case of Sushil Murmu v. State of Jharkhand (2004) 2 SCC 338 , will continue to apply. Further, repeatedly, it is said by this Court, in the various judgments that the aggravating and mitigating factors are to be considered with reference to the facts of each case and there cannot be any hard and fast rule for balancing such aspects. 34. I am clear in my mind that in this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even asper the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Even asper the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC. 35. Long line of cases decided by this Court are cited by learned counsel for the appellant, in similar set of facts and circumstances, this Court has modified the death sentence to that of imprisonment for life, without any remission. Few recent decisions of this Court are: 36. In a three Judge Bench Judgments of this Court, in the case of Nand Kishore v. State of Madhya Pradesh Criminal Appeal No. 94 of 2019 dated 18.01.2019* and in the case of Raju Jagdish Paswan v State of Maharashtra Criminal Appeal No. 88-89/2019 dated 17.01.2019**, for which I am party, in similar circumstances, this Court has modified the death penalty to that of life imprisonment, without any remission. 37. Further, in a recent three Judge Bench Judgment of this Court, in the case of Vijay Raikwar v. State of Madhya Pradesh (2019) 4 SCC 210 , where there was an offence involving rape and murder of a girl aged about 7½ years, while confirming the conviction of the offences under Section 376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and 5(r) read with Section 6 of the POCSO Act, this Court commuted the death sentence to life imprisonment. 38. In the aforesaid judgments, in a similar set of facts, this Court has modified the sentence to life imprisonment. In this case also there is no previous crime record for the appellant. The above referred judgment, supports the case of the appellant. 39. For the aforesaid reasons, these appeals are allowed in part. While confirming the conviction recorded by the Trial Court, death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.