JUDGMENT : (Alok Kumar Verma, J.) : The Criminal Reference and the Criminal Appeal have arisen from a common judgment and order dated 22.09.2021/24.09.2021, passed by Special Judge (POCSO), Pithoragarh in Special Trial No.27 of 2021, “State Versus Janak Bahadur”, by which, the appellant has been convicted for the offence punishable under Section 376 A B of the Indian Penal Code, 1860 (in short, “IPC”), Section 323 IPC and Section 5 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, “Act, 2012”). 2. In view of the provisions of Section 42 of the Act, 2012, the Trial Court has awarded death sentence to the appellant-accused for the offence under Section 376 A B IPC with a fine of Rs.5,000/- and referred the matter to this Court for confirmation of the same in terms of the provisions of Section 366 of the Code of Criminal Procedure, 1973. The appellant-accused has been ordered to be hanged till death. 3. Appellant-accused has been further sentenced to undergo rigorous imprisonment for a period of one year along with a fine of Rs.1,000/- for the offence under Section 323 IPC, and in default of payment of fine, he has been directed to undergo further simple imprisonment for a period of two month’s. 4. Both the sentences have been directed to run concurrently. 5. So far as the compensation and rehabilitation part are concerned, the learned Trial Court has ordered, “Rs.7,00,000/- (Rupees Seven Lakhs) compensation should be provided to the victim, which shall be kept in the F.D.R. scheme in the name of the victim for five years in some Nationalized Bank. The amount so deposited, can only be withdrawn with the permission of the Court on her education or any other incident of life of the victim, in which she can develop herself as a valuable citizen of India to come in the stream line of the society. Interim compensation of Rs.1,00,000/- (Rupees One Lakh Only) already awarded to the victim vide order dated 07.04.2021 of this Court shall be adjusted in the final compensation. Accordingly, Government of Uttarakhand (District Magistrate, Pithoragarh) is directed to pay the compensation amount of Rs.6,00,000/- (Rupees Six Lakhs) to the victim within the statutory period of 30 days from the receipt of the copy of this judgment, in compliance of sub rule 5 of Rule 7 of the POCSO Rules, 2012. Accordingly, Government of Uttarakhand (District Magistrate, Pithoragarh) is directed to pay the compensation amount of Rs.6,00,000/- (Rupees Six Lakhs) to the victim within the statutory period of 30 days from the receipt of the copy of this judgment, in compliance of sub rule 5 of Rule 7 of the POCSO Rules, 2012. So for as the rehabilitation part is concerned, there is no one to look after the victim in this universe. The parents of the victim are no more. She was living with her cousin brother, who has been held guilty for committing rape on her. She is the helpless girl child of five years of age. So, the compensation provide to her, is not sufficient for rehabilitation of the victim. For rehabilitation of the victim, the Court has to consider the educational rehabilitation, social rehabilitation and residential rehabilitation. Thus, the Government of Uttarakhand is directed to look after for educational rehabilitation, social rehabilitation and residential rehabilitation of the victim till the time, she attains majority or not properly settled in her life, whichever is later. The State Government cannot left any girl child unreddressed, which is almost an orphan. Hence, it is the duty of the State Government to provide the dignified shelter, quality education and counseling sessions to the victim so that scars of rape on the brain of the victim can be removed. The two children, a boy and a girl, named Prakash, aged about one and a half years and Nirmala, aged about nine years of age respectively are also the victims in this case as there is no one to look after their livelihood. Their father held guilty for rape committed with his cousin sister, another child. They are also living in Ujjawala Rehabilitation Center (Card Sanstha). Thus, this Court is considering both of the kids as victims in this case, not for the purpose of any monitory benefit, but for the purpose of rehabilitation. Therefore, similar education, social and residential rehabilitation facilities will also be extended by the State Government to the two kids of convict, who are living in Ujjawala Rehabilitation Center (Card Sanstha) along with the victim.” 6. The case of the prosecution in brief is that Sub-Inspector Aarti (PW8) along with other police personnel left the police station at 18:30 hrs on 03.04.2021 for patrolling. The case of the prosecution in brief is that Sub-Inspector Aarti (PW8) along with other police personnel left the police station at 18:30 hrs on 03.04.2021 for patrolling. When they reached ITBP, the secret informer informed them that a 5 year old girl had been raped by her Nepali step brother. On receiving this information, when the police party reached the spot, they saw that a woman (PW7) was standing with a girl (victim PW1) in her lap. She was looking quite upset. She told the police that today when she went to pour water in her pots on the terrace of her house, she saw that the girl was hiding inside a big plastic pipe on the terrace. She also told the police that she (victim) had told her when asked that she was living nearby with her brother Janak Bahadur. Her brother beats her with stick, makes her lie on the ground, takes off her pajama and does dirty things with her, causing pain. She (victim) had requested her not to send her to her brother because he would beat her again and give her pain again. She took her to her house and fed her. When Sub-Inspector Aarti (PW8) asked the girl, she told her name and said that she lives nearby with her Dada (brother). Her Dada beats her with stick and does dirty work with her, which causes her pain. She feels pain while Shu-Shu (urinating). She is very afraid of her brother. That’s why she hid on the terrace. She (PW7) told that Janak Bahadur lives on rent in the same area. The girl (PW1) was handed over to her (PW7) by Sub-Inspector Aarti. The police party reached Janak Bahadur’s room. Janak Bahadur was present with his two minor children. He was arrested at around 21:05 hrs. From the spot, information was given to PW3, the Administrator, Ujjawala Rehabilitation Center (Card Sanstha), Jakhani, Pithoragarh (Non-Governmental Organization). She (PW3) reached the house of PW7 with the child helpline worker. The victim and both the minor children of the accused were handed over to her (PW3) and the said activist. Despite efforts, member of the public could not be secured to testify. An arrest Memo (Ext. Ka. 8) was prepared on the spot. A copy of memo was given to the accused on the spot. 7. An FIR No. 14 of 2021 (Ext. Ka. Despite efforts, member of the public could not be secured to testify. An arrest Memo (Ext. Ka. 8) was prepared on the spot. A copy of memo was given to the accused on the spot. 7. An FIR No. 14 of 2021 (Ext. Ka. 1) was lodged at Police Station Jajardewal, District Pithoragarh on 03.04.2021 at 22:30 hrs. pursuant to the arrest Memo (Ext. Ka. 8). The FIR was registered by Constable Rakesh Singh (PW2) against the accused under Sections 323, 376 IPC and Section 5 read with Section 6 of the Act, 2012. 8. Sub-Inspector Aarti produced the victim for her medical examination on 04.04.2021 before Dr. Prema Fakliyal, Medical Officer of Women’s Hospital, Pithoragarh. Medical examination of the victim was conducted by Dr. Prema Fakliyal (PW5). 9. Dr. N.S. Gunjyal (PW4) was Radiologist in District Hospital, Pithoragarh. He had examined the victim by taking X-ray on 12.05.2021 to determine her age. 10. Dr. Harshikesh Joshi (PW6) was on the post of dentist in District Hospital, Pithoragarh. The victim’s teeth were examined by him on 12.05.2021 to determine her age. 11. According to Dr. N.S. Gunjyal (PW4) and Dr. Harshikesh Joshi (PW6), the age of the victim was found to be between 5 to 6 years. 12. The investigation was handed over to Sub-Inspector Megha Sharma (PW9). Statements of witnesses including the statement of victim were recorded by her. At the behest of the victim, Site Plan (Ext. Ka. 13) was prepared by her in the presence of PW3. 13. The victim’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973 on 07.04.2021. 14. The pajama worn by the victim at the time of the incident was taken vide Memo (Ext. Ka. 14) by Sub-Inspector Megha Sharma (PW9) on 09.04.2021. Blood samples of the victim and the accused were taken by her. Blood samples of the victim and the accused, a lower (inner) of the victim, a pajama of the accused, pubic hair and one glans penis swab of the accused, two vaginal smear slides and scalp hair of the victim were sent by her to the Forensic Science Laboratory Uttarakhand for examination and after concluding the investigation, a charge-sheet (Ext. Ka. 16) was filed by her against the accused under Sections 323, 376 IPC and Section 5 read with Section 6 of the Act, 2012. 15. Ka. 16) was filed by her against the accused under Sections 323, 376 IPC and Section 5 read with Section 6 of the Act, 2012. 15. The Trial Court framed charges against the appellant-accused under Sections 323, 376 AB IPC and Section 5 read with Section 6 of the Act, 2012. As the appellant-accused pleaded innocence, trial was held. 16. In order to establish the accusations, prosecution examined 9 witnesses. 17. Statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Appellant-accused has accepted the prosecution’s case that he is the step brother of the victim. She lived with him. He searched for the victim throughout the night but did not inform the police. He also admitted that he was arrested and that his children were taken away, although he has denied all the incriminating evidence, produced by the prosecution. 18. The appellant-accused has not produced any evidence in defence. 19. Ms. Manisha Bhandari, learned counsel appearing for the appellant contended that the report of the Forensic Science Laboratory dated 13.01.2022 does not support the prosecution case. As per the report of the Laboratory, semen and blood could not be detected on the articles. The prosecution witness PW7 has stated in her cross-examination that her house is three storeyed. There is a channel gate in her house to go to the terrace. The said channel gate closes at 8’0 clock in the evening. Therefore, in these circumstances, it was not possible for the victim to reach the terrace of this witness and the alleged victim’s evidence regarding sexual assault is not corroborated by any independent witness. Therefore, the appellant deserves to be acquitted. 20. On the other hand, Mr. J.S. Virk, learned Deputy Advocate General, has supported the judgment and order, passed by learned Trial Court. He has relied upon a judgment of the Hon’ble Supreme Court, passed in Sunil Vs. State of Madhya Pradesh, (2017) 4 SCC 393 . 21. In Sunil Vs. State of Madhya Pradesh, (2017) 4 SCC 393 , the Hon’ble Supreme Court held that a positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. 22. 22. Now, we proceed to examine whether the appellant can be held to be guilty. 23. The prosecution’s witness PW7 has clearly deposed that on 03.04.2021 at 8 a.m., when she went to her terrace to pour water in the pots, she saw the victim who was scared at that time. Her daughter had bathed the victim and fed her. She had come to the road with the victim, at the same time a police vehicle arrived there. 24. The prosecution witness PW7 and Sub-Inspector Aarti (PW8) have stated that the victim had told them that her Dada (brother) Janak Bahadur inserts his Shu-Shu (private part) in her Shu-Shu (private part). 25. The prosecution witness PW3, who was the Administrator, Ujjawala Rehabilitation Center (Card Sanstha), Jakhani, Pithoragarh (N.G.O.), and is an independent witness, has deposed that she had reached the spot after receiving the information on phone on 03.04.2021 and took the victim and both the children of the accused to the said Card Sanstha, Jakhani. No reason is found to disbelieve the evidence of this witness. 26. The statement of the victim (PW1), aged about 5 years, has been recorded by the Trial Court in question and answer form, which is as follows:- “Question No.1 - Where are your mother and father? Answer - They are dead. Question No.2 - How did your mother and father die? Answer - My father died after taking Daru (alcohol) and my mother consumed medicines due to which she died. Question No.3 - With whom did you live after the death of your mother and father? Answer - After the death of my mother and father, I lived with Dada Janak. Question No.4 - Who else lived with Dada? Answer - I, Prakash and Nirmala lived with Dada. Prakash and Nirmala were also small. Question No.5 - Where does Janak’s wife live? Answer - Janak’s wife lived in Nepal. She is also dead. We all lived in Panda. Question No.6 - What did Janak do with you? Answer - Janak used to talk dirty to me. Question No.7 - What dirty deeds did Janak do? Answer - He used to open his pants. He used to beat me. Used to hold my hand. He used to put his Shu-Shu (private part) in my Shu-Shu (private part). I used to refuse. Question No.8 - How many time did he do dirty things to you? Question No.7 - What dirty deeds did Janak do? Answer - He used to open his pants. He used to beat me. Used to hold my hand. He used to put his Shu-Shu (private part) in my Shu-Shu (private part). I used to refuse. Question No.8 - How many time did he do dirty things to you? Answer - Many times. Question No.9 - How did that dirty deed make you feel? Answer - That dirty work caused pain in my Shu-Shu (private part). Question No.10 - Where did you go after that? Answer - After that I hid in someone’s house. I don’t remember his name. Question No.11 - Where were you taken after that? Answer - Then took me to the institution. Question No.12 - Where did you go after that? Answer - After that I went to the hospital. I was treated in the hospital. I also told the doctor that Janak did dirty things to me. Question No.13 - Where did you go after this? Answer - After this I came to the Court. Question No.14 - To whom did you go to Court? Answer - I went to the Court in front of aunty. My mother was also with me. Court’s observation :- The victim is addressing the Administrator of the Sanstha, Nirmala Pandey, as mother. Question No.15 - What did you tell aunty? Answer - I had told aunty in front of mother that Janak Dada does wrong things with me. Aunty had written it and put the ink of my thumb on it. Cross-examination of the victim by Pankaj Sharma, Advocate/amicus curiae on behalf of the accused. Question No.16 - How many room were there where you lived with Janak Dada? Answer - There was only one room. Prakash and Nirmala also lived in this room. Question No.17 - How old is Nirmala? Answer - Nirmala is also small. She is a little older than me. Question No.18 - How did you sleep in that room? Answer - We used to sleep on the floor in that room. Beds were arranged separately. I used to sleep separately. Question No.19 - How many clothes did you have there to wear? Answer - Where I lived with Janak, I had more clothes. Question No.20 - Was there any fight between Janak’s children Nirmala, Prakash and you? Answer - We used to sleep on the floor in that room. Beds were arranged separately. I used to sleep separately. Question No.19 - How many clothes did you have there to wear? Answer - Where I lived with Janak, I had more clothes. Question No.20 - Was there any fight between Janak’s children Nirmala, Prakash and you? Answer - There was no fight between Nirmala, Prakash and me. Question No.21 - What time did Janak go to work? Answer - Janak used to go to work at 10 in the morning. Question No.22 - What time did he return home? Answer - He used to come back home only at night. Question No.23 - Did he come home and cook for you? Answer - Yes. Question No.24 - When Janak went to work where did you stay the whole day? Answer - I used to stay at home only. Question No.25 - Did you go to the neighbourhood to eat food? Answer - No, I never went out of the house. Question No.26 - After how many days did you take bath and who used to bathe you? Answer - I used to take bath every day and Nirmala used to bath me. Question No.27 - Have you testified against Janak before the Court at the behest of people? Answer - No, I have spoken the truth. It is wrong to say that Janak had not done anything wrong to me. It is also wrong to say that I am giving wrong statements at the behest of people.” (This is the translated version of the original which is in Hindi script.) 27. The victim’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973 on 07.04.2021. She had stated in her statement that her Dada (brother) used to open her pants. He used to insert his private part into her private part and he went to jail because he used to hit her and talk dirty to her. 28. In Ganesan Vs. State Rep. By its Inspector of Police, (2020) 10 SCC 573 , while dealing with conviction under the Act, 2012, the Hon’ble Supreme Court held that the statement of the prosecutrix, if found to be worthy of credence and reliable requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 29. In Ganesan Vs. State Rep. By its Inspector of Police, (2020) 10 SCC 573 , while dealing with conviction under the Act, 2012, the Hon’ble Supreme Court held that the statement of the prosecutrix, if found to be worthy of credence and reliable requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 29. The Trial Court has recorded the testimony of the victim (PW1) after being satisfied that she was capable of understanding the questions asked to her and giving rational answers to the questions. 30. Dr. Prema Fakaliyal (PW5) had proved the medical examination report of the victim (Ext. Ka. 5) and supplementary medical report (Ext. Ka. 6). The victim’s evidence corroborates with the evidence of Dr. Prema Fakaliyal (PW5). She has deposed that at the time of medical examination, injuries were found at several parts of the victim’s body and her hymen was torn at three places. The victim had given a statement at the time of the medical examination that she had been living with her brother for six months. Her step brother used to talk dirty to her every night and she felt pain in her lower side. She used to cry in pain. He used to beat her and threaten to kill her. 31. On evaluating the evidence of the victim and other evidence, available on the record, we are of the opinion that the testimony of the victim is absolutely trustworthy. Therefore, having re-appreciated the entire evidence on record, we concur with the learned trial court on the point of conviction. It is not a fit case where impugned judgment of conviction requires any interference. We also concur with the learned trial court on the point of sentence, passed under Section 323 IPC. 32. Now the question arises whether death sentence should be awarded on the appellant in this case. 33. Ms. Manisha Bhandari, learned counsel for the appellant contended that the appellant is aged about 34-35 years old. He was a laborer. He has a daughter and a son, who are still very young. Their mother has died. There is no one else except the appellant for their care and maintenance. He has no criminal antecedent. Hence, he is liable to get opportunity of rehabilitation and reformation. 34. On the other hand, Mr. He was a laborer. He has a daughter and a son, who are still very young. Their mother has died. There is no one else except the appellant for their care and maintenance. He has no criminal antecedent. Hence, he is liable to get opportunity of rehabilitation and reformation. 34. On the other hand, Mr. J.S. Virk, learned Deputy Advocate General, prayed for confirmation of the death sentence of the appellant in view of the provision of Section 376 AB IPC. 35. Section 376 AB IPC is inserted by the Criminal Law (Amendment) Act, 2018 (Act No. 22 of 2018) (w.e.f. 21.04.2018), which reads as under:- “376 AB. Punishment for rape on woman under twelve years of age- whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim”. 36. In view of Section 354 (3) of the Code of Criminal Procedure, 1973, life imprisonment is the general rule and death sentence is an exception which may be imposed in rarest of rare case. For inflicting death sentence Judge is to assign special reason. 37. In Gurvail Singh alias Gala and Another Vs. State of Punjab, (2013) 2 SCC 713 , the Hon’ble Supreme Court held that the rarest of rare cases test (R-R Test) depends on the perception of the society and not “Judge-centric”. 38. In Mofil Khan Vs. State of Jharkhand, (2015) 1 SCC 67 , the Hon’ble Supreme Court observed that the “rarest of the rare” case exists when an accused would be a menace, threat and antithetical to harmony in the society. 39. After considering the judgments of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 , Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 , the Hon’ble Supreme Court in Mohd. Mannan alias Abdul Mannan Vs. 39. After considering the judgments of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 , Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 , the Hon’ble Supreme Court in Mohd. Mannan alias Abdul Mannan Vs. State of Bihar, (2019) 16 SCC 584 observed:- “The proposition of law which emerges from the judgments referred to above is that death sentence cannot be imposed except in the rarest of rare cases, for which special reasons have to be recorded, as mandated in Section 354 (3) of the Criminal Procedure Code. In deciding whether a case falls within the category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socio-economic background, etc. Awarding death sentence is an exception, and life imprisonment is the rule”. 40. In the case of Surendra Pal Shivbalakpal Vs. State of Gujarat, (2005) 3 SCC 127, the appellant was found guilty by the Sessions Court for the offences punishable under Sections 363, 376 and 302 IPC. For the offence of murder he was sentenced to death. The High Court confirmed the conviction and the death penalty was imposed on the appellant for the offence under Section 302 IPC. The Hon’ble Supreme Court held, “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 on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment”. 41. In Kaumudi Lal Vs. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment”. 41. In Kaumudi Lal Vs. State of U.P. (1999) 4 SCC 108 , where the appellant was convicted for raping and murdering a young girl of 14 years of age, the Hon’ble Supreme Court altered the order imposing death sentence to imprisonment for life. 42. In the case of Bishnu Prasad Sinha and Another Vs. State of Assam, 2007 (11) SCC 467 , where the appellant was convicted for raping and murdering a girl of about 7-8 years of age, the Hon’ble Supreme Court held that it is not a case where extreme death penalty should be imposed. The death sentence was reduced to imprisonment for life. 43. In Sunil Vs. State of Madhya Pradesh, (2017) 4 SCC 393 , while dealing with the case under the Act, 2012 and under Section 302 IPC, where the age of the deceased, the niece of the accused, was 4 years and the age of the accused was 25 years and he was sentenced to death by hanging for the offence under Section 302 IPC, the Hon’ble Supreme Court had commuted the sentence of death into one of life imprisonment. 44. In the case of Bantu Vs. State of M.P. (2001) 9 SCC 615 , there was nothing on record to indicate that the appellant had any criminal antecedents nor could it be said that he would be a grave danger to the society at large despite the fact that the crime committed by him was heinous. The Hon’ble Supreme Court held, “However, the learned counsel for the appellant submitted that in any set of circumstances, this is not the rarest of the rare case where the accused is to be sentenced to death. He submitted that age of the accused on the relevant day was less than 22 years. It is his submission that even though the act is heinous, considering the fact that no injuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and nosetrix (nostril) by the accused at the time of incident so that she may not raise a hue and cry. It is his submission that even though the act is heinous, considering the fact that no injuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and nosetrix (nostril) by the accused at the time of incident so that she may not raise a hue and cry. The death, according to him, was accidental and an unintentional one. In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence”. 45. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, (2009) 6 SCC 498 , the Hon’ble Supreme Court held that capital punishment should be awarded only in the rarest of rare cases and there must be clear evidence to indicate that the convict is incapable of reform and rehabilitation. The Hon’ble Supreme Court held, “The “rarest of rare” dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? 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 exception 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. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, alongwith other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of the rarest of rare doctrine”. 46. In Sandesh Vs. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, alongwith other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of the rarest of rare doctrine”. 46. In Sandesh Vs. State of Maharashtra, (2013) 2 SCC 479 , the Hon’ble Supreme Court held that it is for the prosecution to lead evidence to show that there is no possibility that the convict cannot be reformed. 47. The reformation and rehabilitation of a convict is a mitigating circumstance for the purposes of awarding punishment. But, the prosecution has not placed any material or evidence before the courts to arrive this conclusion that reformation, rehabilitation and social re-integration of the appellant into society are not possible. It is true that the appellant committed a most heinous crime but the following mitigating circumstances demand the lesser penalty:- (i) The appellant was aged 31-32 years at the time of the offence. (ii) He was a labourer. (iii) He did not have any criminal antecedents. (iv) He has a daughter and a son, who are still very young. Their mother has died. There is no one else except the appellant for their care and maintenance. (v) It cannot be said that he would be a menace to the society in future if the death sentence is not awarded to him. (vi) It cannot be said that reformation, rehabilitation and social re-integration of the appellant into society are not possible. 48. In view of the above and for the reasons stated above, we are of the opinion that it is not a case where extreme death sentence should be imposed. The ends of justice would be met if we commute the sentence of death to the rigorous imprisonment for a term of twenty years. We, therefore, allow the appeal partly. We confirm conviction of the appellant on all the counts, but the death sentence, imposed on the appellant for the offence under Section 376 AB IPC is commuted to the rigorous imprisonment for a term of twenty years. It is made clear that the said sentence will also include the period of sentence already undergone. The sentence awarded for the conviction under Section 323 IPC shall run concurrently. 49. The Reference is answered accordingly. 50. It is made clear that the said sentence will also include the period of sentence already undergone. The sentence awarded for the conviction under Section 323 IPC shall run concurrently. 49. The Reference is answered accordingly. 50. A copy of this judgment be placed on the record of the Criminal Appeal No. 23 of 2021.