Appeal under Sec.374(2) of Cr.P.C

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 2-12-2008

CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE S.RAJESWARAN

R.T.No.1 of 2008 and CRL.A.No.399 of 2008

Venkatesan .. Appellant/ accused
vs
State rep. By
The Inspector of Police
Ambattur Police Station
Tiruvallur District .. Respondent/ complainant
Criminal appeal preferred under Sec.374(2) of Cr.P.C. against the judgment of the Additional Sessions Court (Fast Track Court No.III), Poonamallee, made in S.C.No.28 of 2008 dated 11.4.2008.
For Appellant : Mr.AR.L.Sundaresan
Senior Counsel
for Mr.N.R.Anantharama-
krishnan

For Respondent : Mr.P.Kumaresan Additional Public Prosecutor

COMMON JUDGMENT

(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
C.A.No.399 of 2008 challenges a judgment of the Additional Sessions Division, Fast Track Court No.III, Poonamallee, made in S.C.No.28 of 2008 whereby the appellant shown as A-1 was found guilty under Sec.302 of IPC while A-2 though charged under Sec.302 read with 109 of IPC, died pending trial.
2.The trial Court has sought for confirmation of the death penalty awarded to the appellant.
3.Both the referred trial and the appeal at the instance of A-1 in S.C.No.28 of 2008 are taken up for consideration together.
4.Necessary facts for the disposal of this appeal can be stated as follows:
(a) P.W.1 Sheeba Elizabeth, a resident of Krishnapuram, Ambattur, is running an orphanage. The deceased Rebecca, a child aged 9, was doing her 4th Standard at the time of occurrence. The deceased was the daughter of P.W.1, while P.W.4 is her minor son. She was carrying on the orphans’ home in the ground floor while she was living with her children in the first floor. A-2 Shakeela sought help from P.W.1 stating that she was deserted, and she was given work in her house as a servant maid. A-1 was working as a mason for sometime. P.W.1 was searching for a driver for a car. A-1 informed her that he knew driving, and hence he was utilized for that purpose. P.W.1 came to know that A-1 and A-2 had developed illicit intimacy, and she found that it would not be conducive for the conduct of the orphanage. Then, she warned both. At that time, A-2 used to intimidate her telling that she did not know about A-1, and he would do the needful. When P.W.1 warned her, A-2 was about to start with all her goods.
(b) On 28.3.2006 in the morning hours, when A-2 was about to start, P.W.1 informed that her parents have been informed, and she can go only with them. Then, A-2 was waiting. Accordingly, the parents of A-2 came there, and P.W.1 got a statement from the parents of A-2 that the custody of A-2 was entrusted with them. When she was about to start, A-2 informed P.W.1 “wait and see what A-1 was going to do”. At about 12.15 P.M., Rebecca and P.W.4 Samuel were cycling outside. At that time, A-1 called both Rebecca and Samuel; but, P.W.4 Samuel refused to go. But Rebecca accompanied him and in a short distance, A-1 gave a lighted candle to her and also poured kerosene over her, and thus she was set ablaze. P.W.4 has witnessed the same. On hearing the noise “burning, burning”, P.W.1 who was actually in the upstairs doing household work, came down to see her daughter Rebecca burning. Immediately, she took her in a Car. She also gave information to her brother. When the child was taken in the Car to Sundaram Foundation Hospital, the child was telling “I did nothing. Why elder brother Venkatesan burnt me.” She was given initial treatment at Sundaram Foundation. Thereafter, she was taken to Kilpauk Medical College and Hospital in an ambulance. The brother of P.W.1 also arrived. It was P.W.1’s brother who admitted the child at Kilpauk Medical College and Hospital, and P.W.3, the Doctor, who was on duty, admitted the child, and he also recorded the statement given by the brother of P.W.1 since the child Rebecca was semi conscious. Ex.P5 is the accident register copy. Despite treatment, the child died in the hospital.
(c) P.W.1 proceeded to the respondent police station where P.W.9, the Inspector of Police, was on duty, and gave Ex.P1, the report. In Crime No.571 of 2006 under Sec.302 of IPC, a case came to be registered. P.W.9 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P6, and also a rough sketch, Ex.P12. The photographs were taken from the place of occurrence. M.O.2 series are the photographs along with negatives. He recovered material objects under a cover of mahazar. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. In the meanwhile, the finger print expert was called, and he took the finger prints from the place and also from the vessel. Thereafter, the dead body was subjected to postmortem by P.W.2, the Professor, Department of Forensic Medicine, Government Kilpauk Medical College, who has issued a postmortem certificate, Ex.P3, with his opinion that the deceased would appear to have died of hypovolumic shock due to burns.
(d) Pending the investigation, A-2 was arrested on 6.4.2006, and she gave a confessional statement. The same was recorded. A-1 was arrested at 18.00 hours the very day when he came forward to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P15. Then he produced, M.O.15, plastic can, M.O.16, diary, and M.O.17, letter, which were recovered under a cover of mahazar. Both the accused were sent for judicial remand. Finger prints were also taken from them, and they were sent to the finger print expert for comparison. After comparison, the finger print expert, P.W.8, also gave a report, Ex.P9, wherein he has stated that the finger prints taken from the vessel when compared, were found to be that of A-1. The material objects were subjected to chemical analysis which resulted in Ex.P18, the chemical analyst’s report. P.W.10, the Inspector of Police, took up further investigation and on completion of investigation, filed the final report.
5.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 10 witnesses and also relied on 19 exhibits and 18 material objects. On completion of the evidence on the side of the prosecution, A-1 was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court after hearing the arguments advanced and scrutinizing the materials, found that A-1 was guilty under Sec.302 of IPC and was of the opinion that it is a fit case where death penalty should be imposed. Hence the matter has been placed before this Court for the purpose of confirmation, while the appellant/A-1 has brought forth the appeal. Both were taken up for consideration by this Court.
6.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.AR.L.Sundaresan would submit that the case of the prosecution was that the occurrence has taken place at 12.15 P.M. on 28.3.2006; that the prosecution rested its case on the evidence of P.W.4 a child of 4 years old; that according to the prosecution, A-1 had illegal intimacy with A-2; that P.W.1 informed the parents of A-2 and when they came, she got a written undertaking and allowed A-2 to go out; that in the instant case, according to the prosecution, P.W.1 at the time of occurrence, was actually in the first floor doing her household work, and hence she could not have seen the occurrence at all; that it was not the evidence of P.W.1 that she saw A-1 moving from the place, and hence she cannot be said to be a competent witness to speak about the occurrence; that P.W.4 was a minor boy of 6 years old; that in view of the fact that the child was of tender age, the evidence of P.W.4 should have been outright rejected by the trial Court; that according to P.W.1, when she came down, P.W.4 informed her; but, at the same time, in the earliest document Ex.P1, the report, nowhere had she stated that she was informed by P.W.4; that according to her, in the orphanage there were eight children and also four adult members; that even she has added in her evidence that at the time when the occurrence has taken place, the children were playing; and that though number of persons were actually cited and their statements were also recorded by the Investigator at the time of investigation, they were not examined by the prosecution for the reasons best known to them.

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7.Added further the learned Senior Counsel that in the instant case, according to P.W.1, immediately the child with burn injuries was taken to Sundaram Foundation Hospital for first-aid; that neither the Doctor who gave the treatment was examined, nor the accident register copy or any document in that regard which should have been the earliest document, was filed before the Court; that had it been produced before the Court, the earliest statement given to the said Medical Person would have come before the Court; that according to P.W.3, the Doctor, who gave treatment at Kilpauk Medical College and Hospital to the child Rebecca, the child sustained 100% burn injuries, and if to be so, the child could not speak; but P.W.1 would claim that when the child was taken to the hospital in the car, she was telling that it was A-1 who actually set fire on her, and P.W.1 had nowhere stated in the earliest report, Ex.P1, also; that under the circumstances, the claim by P.W.1 that the child was uttering on the way when she was taken to the hospital that it was A-1 who set her ablaze should not be believed since it is highly improbable; that the occurrence has taken place at 12.15 P.M. and she was immediately taken to Sundaram Foundation Hospital and thereafter to Kilpauk Medical College and Hospital, where she was given treatment at 1.30 P.M.; that even according to P.W.1, her brother was available; but, no one approached the police till 5.00 P.M.; that all would go to show that there was a delay of five hours in giving the report; that in the meanwhile, the case has been developed; that if the evidence of P.W.1 is viewed from the earliest statement given by her by way of a report to the police under Ex.P1, lot of discrepancies are noticed, and they are all subsequent developments which have been made in order to rope in A-1 and A-2; that the lower Court was not prepared to accept the case of the prosecution in respect of A-2 who was actually the servant maid with whom, according to the prosecution, A-1 developed illicit intimacy which was the reason for the whole trouble; that the reasons which were adduced by the trial Court for rejecting the case of the prosecution in respect of A-2, are equally applicable to A-1 also; that under the circumstances, A-1 should have also been acquitted of the charge, but not done so; that as far as the claim made by the prosecution as if the recovery of the material objects was made pursuant to the confessional statement voluntarily given by A-1 to the Investigator, was concerned, the only witness examined was P.W.5; that P.W.5 has turned hostile and thus, the prosecution had no evidence to offer; that the prosecution cannot claim that the recovery of the material objects would prove the nexus between the crime and A-1; that in the instant case, the prosecution had neither direct nor indirect or circumstantial evidence to offer, and thus it has miserably failed to prove its case, and the appellant is entitled for acquittal.
8.The learned Senior Counsel would further add that in the instant case, the lower Court has awarded the capital punishment of death penalty to the appellant; that even if the Court comes to the conclusion that the factual position put forth by the prosecution that it was A-1 who set her ablaze and caused her death is proved, it cannot be considered as a rarest of rare case; that the Court has to consider both the circumstances namely aggravating and mitigating, and draw a balance sheet between them; that in the instant case, the accused was 24 years old; that there is no evidence adduced by the prosecution to state that he was involved in any criminal case also or his antecedents were bad; that there is nothing to indicate that he should be wiped off from the society since he is a menace to society; that apart from that, he was a poor coolie; that in a case of murder, the rule is to award life imprisonment, and the awarding of death sentence was an exception; and that it is not a case where death penalty could be imposed.
9.The learned Senior Counsel would further add that the above statements are fortified by the decisions of the Apex Court as follows:
(i)AIR 1983 SC 957 (MACHHI SINGH AND OTHERS V. STATE OF PUNJAB);
(ii)AIR 2002 SC 2811 (STATE OF PUNJAB V. GURMEJ SINGH);
(iii)2004 AIR SCW 1194 (PRITHVI V. MAM RAJ AND OTHERS);
(iv)2004 AIR SCW 5581 (SURENDRA PAL SHIVBALAKPAL V. STATE OF GUJARAT) and
(v)(2005) 10 SUPREME COURT CASES 322 (RAHUL ALIAS RAOSAHEB V. STATE OF MAHARASHTRA).

10.The Court heard the learned Additional Public Prosecutor on all the above contentions. Apart from answering the contentions put forth by the learned Counsel for the appellant on the factual position disputing the case of the prosecution that it was A-1 who gave a lighted candle to the child and also poured kerosene and thereby caused her death, to affirm the sentence of capital punishment, the learned Additional Public Prosecutor would point out that the act of A-1 was one which was actually shocking to the conscience of any one who heard it; that further in the instant case, it is gruesome and diabolic and also cold blooded murder; that against the child who could not resist the same, it is done; and that he could not have any excuse at all. He relied upon a case reported in 2008 (3) CRIMES 264 (SC) (BANTU V. THE STATE OF U.P.) and would submit that it is a rarest of rare case; that the circumstances warrant for imposition of death penalty, and if not given, it would not only be inadequate, but also not in any way be an answer to the society, and hence what has been done by the trial Court has got to be affirmed.
11.The Court paid its anxious consideration on the submissions made and looked into the materials available in entirety.
12.It is not in controversy that a child of age 9 by name Rebecca, the daughter of P.W.1, following an incident that took place at 12.15 P.M. in front of the house of P.W.1 on 28.3.2006, in which she was set ablaze, was taken to the hospital, and despite treatment, the child died on the day. Following the case registered by P.W.9, the Inspector of Police, on the report of Ex.P1, and following the inquest made by him, the dead body was subjected to postmortem. P.W.2, the Doctor, who conducted autopsy has given a categorical opinion that the child died due to the burn injuries. The fact that the child died out of burn injuries was not a fact disputed by the appellant before the trial Court or in this appeal even, and hence it has got to be recorded factually without any impediment that the child died out of burn injuries sustained by it.
13.A perusal of the entire materials would clearly indicate that it is a case where the prosecution placed before the trial Court sufficient materials indicating the guilt of A-1. From the evidence of P.W.1, it could be seen that A-1 and A-2 were actually employed under her during the relevant time; that they developed illicit intimacy; that when she took notice of the same, she warned both of them, and despite the warning, they continued to have the same. The evidence would further go to show that vexed over the situation, P.W.1 who is actually carrying on the orphanage, informed to the parents of A-2, and the parents of A-2 also arrived there, and she got an undertaking letter from them and handed over the custody of A-2 to her parents. It is further seen that when A-2 left the place, she has challenged “wait and see what A-1 was going to do”, and within a short span of an hour, the occurrence has taken place. From the evidence of P.W.1, it would be quite clear that the children were cycling outside the house, and P.W.1 was actually doing her household work in the first floor where she was residing. Within a short span of time, she heard the noise “burning, burning”. Then, she got down to see her child Rebecca actually burning with flames, and immediately the child was taken to Sundaram Foundation Hospital for first aid. At this juncture, it is pertinent to point out that when the child was taken in the car, the child was repeatedly telling “I did nothing, why the elder brother Venkatesan burnt me.” This was actually spoken to by P.W.1. The way in which the child of 9 years old was actually telling the happening to the mother is not unnatural, but what is expected of a child under the circumstances. The learned Senior Counsel for the appellant commented over this by stating that according to P.W.3, the Doctor, the child had 100% burn injuries, and hence, the child could not have spoken or uttered these words, and apart from that, this utterance claimed to have been made by the child to P.W.1 was not referred to in the earliest report. This contention cannot be countenanced at all.
14.It is true that P.W.3, the Doctor, has noted in the accident register that the child was found with 100% burn injuries and could not speak. But, it is pertinent to point out that it was found to be semi conscious. The occurrence has taken place at about 12.15 P.M. Immediately the child was taken to Sundaram Foundation Hospital for initial treatment, and then it was taken to Kilpauk Medical College and Hospital only at 1.30 P.M. It was examined by P.W.3 at about 1.30 P.M. Needless to say that in a given case like this when a person is set ablaze, immediately what one would expect from him is a shout as to by whom it is done. Naturally, when the child was taken in the car to Sundaram Foundation Hospital immediately after the occurrence with burn injuries, the child has spoken to the mother P.W.1 that it was A-1 who committed the crime. The Court has to give much weight to this part of the evidence adduced by the prosecution. The non-mention of those words uttered by the child to mother P.W.1, in the earliest report, Ex.P1, cannot in any way take away the truth of the case, and hence that contention cannot be countenanced.
15.Above all, it is true that P.W.1 has gone to the police station to give a report at 5.00 P.M. The occurrence has taken place at 12.15 P.M. There was an interval of 4 hours and 45 minutes. In the considered opinion of the Court, this is not a delay at all for the simple reason that the aggrieved party was P.W.1, the mother of the child, and it was 9 years old child. One can visualize the anxiety of the mother to save the child at that juncture and not to go to the police station to give a report, and hence this cannot in any way considered to be a delay at all. Though she took all steps to save the child, she could not; but, the child met its end. Under the circumstances, she was frustrated, and there is no fault on her side. Only thereafter, she went to the police station. In fact, she was also carrying on an orphanage, and hence it is not a delay at all.

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16.Added circumstance was that in the instant case at the time of investigation, the appellant/accused has been arrested. The finger print expert has also been called, and he has taken finger prints from the vessel. The finger prints of A-1 and A-2 have also been taken, and the finger print expert has also been examined as P.W.8. The vessel contained the finger print of A-1 as found in the report given by the finger print expert. The case of the prosecution was that it was the accused who gave a lighted candle to the child, and then he poured the kerosene on her from the vessel. The vessel has also been recovered from the place. All would clearly indicate that the scientific evidence was also in support of the prosecution.
17.At this juncture, the evidence of P.W.4 has got a vital role to play. In the case on hand, it is true that P.W.4 was actually a 6 years old boy. The trial Court has tested its maturity to give evidence, and thereafter, he has been examined. It remains to be stated that A-1 was already known to him very well because he was employed therein. Every place, P.W.4 has mentioned him in whole evidence as elder brother. P.W.4 has narrated the whole incident and how it happened. According to P.W.4, he was playing with his sister the deceased Rebecca, and when A-1 came there, he called both of them; but, he did not go, and it was the sister who went with him, and then he was able to see A-1 giving a lighted candle to her and also pouring kerosene over her, and he has also thrown a burning clothe on him; but, he ran. His evidence was found to be natural. The comment made by the learned Senior Counsel was that it was a child witness. But, at the same time, even after exercise of the care and caution, the evidence of P.W.4 inspired the confidence of the Court. Once this evidence coupled with all the above factors were placed before the trial Court by way of evidence, this Court is satisfied that it was A-1 who gave a lighted candle to the child and also poured kerosene on her and thereby put an end to the innocent child. Under the circumstances, the contentions all or any one put forth by the learned Senior Counsel for the appellant and recorded above, do not carry any merit whatsoever, and they are liable to be rejected and accordingly, rejected. This Court has to record its finding as rightly done by the learned trial Judge, that it was A-1 who committed the heinous crime of murdering the child.
18.The next question that would arise for consideration is whether this is a rarest of rare case which would necessitate the imposition of death penalty on the appellant. As pointed out earlier, the learned Senior Counsel for the appellant relying on the decisions referred to above, has submitted that it is not a rarest of rare case in which death penalty could be imposed. On the contrary, much reliance was placed by the learned Additional Public Prosecutor on the decision of the Apex Court reported in 2008(3) CRIMES 264 (SC) (BANTU V. THE STATE OF U.P.) wherein the earlier judgments of the Apex Court in BACHAN SINGH V. STATE OF PUNJAB (1980 (2) SCC 684), MACHHI SINGH V. STATE OF PUNJAB (1983 (3) SCC 470) and DEVENDER PAL SINGH V. STATE OF NCT OF DELHI (2002 (5) SCC 234) are referred to. It would be more apt and appropriate to reproduce the relevant passages of the said judgment which are hereunder.
“32.In Bachan Singh v. State of Punjab, (1980 (2) SCC 684) a Constitution Bench of this Court at para 132 summed up the position as follows: (SCC p.729)
“132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the peoples representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware  as we shall presently show they were  of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.”
33.Similarly in Machhi Singh v. State of Punjab (1983 (3) SCC 470) in para 38 the position was summed up as follows: (SCC p.489)
“38. In this background the guidelines indicated in Bachan Singh case1 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case1:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”
34.The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi (2002 (5) SCC 234) : (SCC p.271, para 58)
“58. From Bachan Singh v. State of Punjab31 and Machhi Singh v. State of Punjab32 the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.”
19.After referring to those judgments, Their Lordships in the aforesaid decision have pointed out as follows:
“36.What is culled out from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.”
20.The Apex Court had an occasion to consider the factors which are to be taken into account while imposing penalty of death in a case reported in AIR 2002 SUPREME COURT 2811 (STATE OF PUNJAB V. GURMEJ SINGH) and has held as follows:
“A number of factors, which are to be taken into account while imposing penalty of death, for illustration are the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed is for satisfying any kind of lust, greed or in pursuance of any organised anti-social activity or by way of organised crime, drug trafficking or the like or the chances of inflicting the society with a similar criminal act, that is to say vulnerability of the members of the society at the hands of the accused in future or commission of murder which may be shocking to the conscience.”

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21.In the instant case, the proved facts would show that the appellant has murdered an innocent child of tender age which is, no doubt, heinous and gruesome, and he had no excuse to do the same. This Court is able to notice the following mitigating circumstances. The appellant/accused is aged 26. The prosecution has not placed any material before the trial Court that he was involved in any criminal case or in any nefarious or anti-social activities to indicate bad antecedent. It cannot be stated that he would be a menace to society in future. Under the circumstances, the case cannot fall under the category of rarest of rare cases warranting death penalty. Hence the death penalty imposed by the learned trial Judge is modified to one of life imprisonment. Accordingly, the appellant/accused is directed to undergo life imprisonment for the offence under Sec.302 of IPC.
22.In the result, with the above modification in the sentence, R.T.No.1 of 2008 is disposed of, and Crl.A.No.399 of 2008 is dismissed.

R.T.No.1 of 2008 and CRL.A.No.399 of 2008

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