DSR/1/2022 of STATE OF HP Vs AKASH on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

DSR No. 1 of 2022 a/w Cr. Appeal No. 219 of 2022 Reserved on: 05.12.2022 Decided on: 30.12.2022

___________________________________________________________

DSR No. 1 of 2022

State of H.P.

....Appellant

Versus

Akash .…Respondent

Cr. Appeal No. 219 of 2022

Akash ....AppellantVersusState of H.P. .…Respondent

Coram

The Hon’ble Ms. Justice Sabina, Judge.

The Hon’ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes.

For the appellant(s) : Mr. Vikrant Chandel, Deputy Advocate General, for theappellant/State in DSR No.1 of2022.

Mr. Sahil Malhotra, Advocate, for the appellant in Cr. Appeal No. 219 of 2022.for the appellant in Cr. Appeal No. 219 of 2022.

For the respondent(s) :

Mr. Sahil Malhotra, Advocate, for the respondent in DSR No.1 of 2022.for the respondent in DSR No.1 of 2022.

Mr. Vikrant Chandel, Deputy

Sushil Kukreja, Judge

Advocate General, for therespondent/State in Cr. AppealNo. 219 of 2022.

Accused Akash, was tried by the learnedAdditional District & Sessions Judge, Fast Track, SpecialCourt (POCSO), Solan, District Solan, H.P., in SessionsTrial No. 93-S/7 of 2020/2017, under Sections 376 & 302of the Indian Penal Code (hereinafter referred to as “IPC”)and Sections 6 & 10 of the Protection of Children fromSexual Offences Act, 2012 (hereinafter referred to as“POCSO Act”), in case FIR No. 03/2017, dated 21.02.2017,registered at Women Police Station, Baddi, District Solan,H.P.

2. The learned Special Judge, Fast Track, SpecialCourt (POCSO) (hereinafter referred to as the “trial Court”),vide judgment/order of conviction/sentence, dated14.01.2022/17.02.2022, convicted and sentenced theaccused as under:- “(a) The convict Akash is sentenced to death foroffence punishable under Section 302 of IPC. Theconvict is also sentenced to pay fine of Rs.25,000/- under Section 302 of IPC and in default of payment of fine, to undergo simpleimprisonment for a period of six months. Theconvict is directed to be hanged by neck till he isdead.

(b) With regard to the commission of offenceunder Section 6 of POCSO Act read with Section376 of IPC, I am of the considered view that endsof justice would be met by sentencing the convictto undergo rigorous imprisonment for life andalso to pay fine of Rs. 25,000/- and in default ofpayment of fine to further undergo simpleimprisonment for a period of six months.”

3. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence, passed bythe learned trial Court, accused Akash has preferredCriminal Appeal No. 219 of 2022, praying therein for hisacquittal after setting aside the aforesaid judgment ofconviction and order of sentence.

4. Death Sentence Reference No.1 of 2022 arises out of the Reference made by the learned trial Court underSection 366 (1) of the Code of Criminal Procedure, 1973 tothis Court for confirmation of the death sentence ofaccused Akash.

5. Since the above captioned Death SentenceReference and Criminal Appeal arise out of a common

Facts

factual matrix and impugned judgment/order dated14.01.2022/17.02.2022, this Court proceeds to decide thesame by the common judgment. 6.The case of the prosecution, in brief, is that on21.02.2017, the complainant (name withheld) moved awritten complaint at Women Police Station, Baddi, DistrictSolan, wherein it has been alleged that he is resident ofBengal and is residing alongwith his family at a place(name withheld) as a tenant and his wife is serving in acompany. On 20.02.2017, when he and his wife returnedhome in the evening after their duty, they found that theirdaughter was not at home and they could not trace her. Ithas been further alleged in the complaint that on21.02.2017, his son (name withheld) told him that on20.02.2017, at 3:00 p.m., he had seen the accused takingthe victim (name withheld) (hereinafter referred to as “thevictim”) by her hands towards the road. The complainantalso alleged in the complaint that accused is resident ofU.P., but he is residing in a rented accommodation at somedistance from his house. During investigation of the case, search of victim was conducted in the forest of Judi Khurd.The father of the victim and one Rakesh Singh wereassociated in the search. When police entered the forest,they found one slipper and after 10 feet ahead, one chatai(mat) alongwith disposable glasses and an empty packet ofKurkure. After moving 80 feet ahead, body of a girl wasfound in the bushes. The body was in a semi nakedcondition and the complainant identified the body to be ofhis missing daughter. The inspection of the body revealedthat the victim was wearing a T-Shirt alongwith a blackcoloured thread, while her payjami was found hangingdown near left foot. There was a blue colour mark on theright side of the neck of the victim and a wooden piece wasfound inserted in her private part. A part of the intestinewas found coming out from the private part. Thephotographs of the body of the victim were clicked. Inquestreport was filled-in and the body was preserved. Spot mapwas prepared. The other part of yellow coloured slipper wasfound near body of the victim. The sample of blood stainedsoil was preserved from the spot alongwith the control sample. One packet of Potato Wafers Easy Fun (green incolour), in which there were some chips, was alsopreserved. The wooden piece found inserted in the privatepart of the victim was taken out and preserved in a clothparcel and sealed with seal ‘A’. The part of intestine wasalso preserved in a plastic jar and sealed. One red andblack coloured chatai alongwith piece of bidi, twodisposable glasses, empty wrapper of Kurkure, half filledliquor bottle of ‘Rasila Santra’ alongwith cap werepreserved from the spot and sealed in a parcel.7.The body of the victim was initially sent to CHC,Nalagarh, for postmortem, but thereafter the same wasreferred to IGMC, Shimla for postmortem and forensicexamination and as per post-mortem report Ex PW-17/B,ante-mortem injuries were observed and it has been opinedby the Doctor that victim died as a result of manualstrangulation in a case of gross perineal tear and foreignbody insertion into genitals reaching upto abdominal wall,and the death was Homicidal in nature.

8. The accused was arrested on 22.02.2017 andreport of his medical examination was obtained. Theaccused made a disclosure statement under Section 27 ofIndian Evidence Act and as such, red coloured shirt andblue coloured jeans were recovered from his home, whichhe was wearing on 20.02.2017. The said recovery waspreserved and sealed in a parcel with seal impression ‘H’.9. As regards scientific reports, fourteen sealedsamples were sent to SFSL, Junga, for chemical analysisand as per its report, human blood of group ‘A’ wasdetected on the blood stained soil and leaves, blood stainedwooden piece, sacred thread worn by the victim and in theblood samples of the deceased. Human blood of group ‘A’was detected on the underwear of the accused and humansemen was also detected on the same. Human blood wasalso detected on the pubic hair of the accused, payjami ofthe victim, but the result was inconclusive with respect tothe blood group. Human blood of group ‘A’ was alsodetected on the underwear and the T-Shirt of the victim.Human blood was also detected on the wooden stick recovered from the abdomen of the victim and parts ofintestine preserved from the body, but was inconclusive inrespect of blood group. Human blood was also detected onthe anal and perianal swab, vaginal swab of the victim, butwas insufficient for blood grouping. Similarly, human hairwas found on the jeans and shirt of the accused. As peranother report of SFSL, Junga, the blood stained soil wasfound consistent with the control sample of the soil. Thetorn wrapper piece was found to be part of torn MasalaMunch Kurkure Wrapper before tearing.

10. As per report of DNA Division of SFSL, Junga,the DNA profile pertaining to a female individual wasobtained from the pants of the accused, which completelymatched with the DNA profile obtained from blood samplesof the victim. A mixed DNA profile was obtained from thepubic hair of the accused, from which, two DNA profilescould be identified, one of which matched with the DNAprofile obtained from the blood sample of the victim andthe other one matched with the DNA profile obtained fromthe blood samples of the accused. The DNA profile obtained from the part of intestine preserved from the bodyof the victim completely matched with the DNA profileobtained from her blood sample. As per report, noalcohol/poison was detected in the viscera preserved from the body of the victim.

11. After completion of investigation, it was revealed that on 20.02.2017, the accused enticed away the victimand took her to his room, however, he could not succeed insexually assaulting her and as such, he took her to alonely place at Judi Khurd forest, where he had committedpenetrative sexual assault on the victim and thenmurdered her by strangulation and also inserted a woodenpiece in her private parts. The accusedwascharge-sheeted for the commission of offence punishableunder Sections 302 & 376 of IPC and Sections 6 & 10 ofPOCSO Act.

12. Charges were framed by the learned trial Courtagainst the accused, vide order dated 15.12.2017, wherein,he did not plead guilty of the charges framed against himand claimed to be tried.

13. In order to prove its case, the prosecutionexamined as many as 19 witnesses. Statement of theaccused was recorded under Section 313 Cr. P.C., whereinhe denied the prosecution case. However, he did not leadany evidence in his defence.

14. On the basis of evidence led on record by theprosecution, the learned trial Court held the accused guiltyof his having committed offence punishable under Sections302 & 376 of IPC and Section 6 of the POCSO Act andsentenced him as per description given hereinabove.

15. We have heard the learned Legal Aid counsel for the accused/convict and learned Deputy AdvocateGeneral for the State and also gone through the recordscarefully.

16. The learned legal aid counsel for the accusedhas submitted that the “last seen theory” is not applicableto the instant case. He has further submitted that thecircumstances relied upon by the prosecution are notfirmly established and the circumstances do not form acomplete chain establishing the guilt of the accused.

17. On the other hand, learned Deputy AdvocateGeneral has contended that there is ample evidenceavailable on record to prove that the deceased was seenlastly with the accused and the scientific evidence as wellas the recovery at the instance of the accused was alsoproved beyond any reasonable doubt, therefore, the trialCourt was right in convicting and sentencing the accused-appellant. He, therefore, contended that there is no meritin the appeal filed by the accused and the same is liable tobe dismissed by this Court.

18. The accused has been charged for thecommission of offence of rape & aggravated penetrativesexual assault on the minor child and thereafter forcommitting her murder, who was aged about 7 years. Nowlet us examine as to whether the prosecution has been ableto establish the guilt of the accused by leading convincingand cogent evidence on record. At the very outset it may benoted here that there is no eye-witness to the incident inquestion. PW-7, who is the father of the victim hasspecifically deposed that on 20.02.2017, when he alongwith his wife came back to his rented accommodationafter doing job in the company, they found their daughtermissing. They searched her in the locality, but could notfind her anywhere. He further deposed that on 21.02.2017his son disclosed that on 20.02.2017 at 3:00 p.m., accusedAkash, who was residing in a rented room, took hisdaughter towards jungle and thereafter he moved anapplication, Ext. PW-7/A to Women Police Station, Baddi.He further deposed that after arrival of the police on thespot, he alongwith one Rakesh and some other personswent to search his daughter and during search, right footchappal of his daughter was found near Temple towardsGas Plant and after moving slightly ahead, one chatai (mat)was also found in the bushes alongwith two plasticglasses, one empty liquor bottle of 350 ml and its cap,empty wrapper of Kurkure and two Bidi butts. On furthermoving ahead, dead body of his daughter was found lyinghalf naked. A wooden piece was found inserted in herprivate part and intestine was also found coming out of herprivate part.

19. PW-1 Rakesh Singh Bhadauria, corroboratedthe statement of PW-7 and deposed that on 21.02.2017, healongwith the complainant and the police went in search ofthe victim and found her dead body lying half naked with awooden piece inserted in her private part and her intestinewas also found coming out of her private part. He furtherdeposed that body of the victim was identified by her fatherand articles recovered near the dead body were also takeninto possession.

20. PW-18, Inspector Bhadur Singh, has deposedthat during investigation, he alongwith other policeofficials, witness Rakesh Singh Bhadauria and thecomplainant went in search of the victim and found herhalf naked dead body in the forest with a wooden pieceinserted in her private part and her intestine was alsofound coming out of the private part. He further deposedthat articles lying near the dead body of the victim werealso taken into possession.

21. Thus, from the perusal of the statements of thecomplainant PW-7, who is father of the victim and PW-1

Rakesh Singh Bhadauria, who is an independent witnessand their statements being duly corroborated by thestatement of PW-18, who is Investigating Officer in thepresent case, it has been duly established on record thatthe victim had gone missing on 20.02.2017 and her deadbody was recovered from the forest on 21.02.2017, with awooden piece inserted in her private part and part of herintestine was also found coming out therefrom. From thetestimonies of the aforesaid witnesses, it has also beenproved on record that the dead body of the victim wasidentified by her father and the articles which were foundlying near the dead body were also taken into possessionby the police.

22. Thereafter, the post-mortem on the body of thevictim was conducted. PW-18, Investigating Officer, hasspecifically deposed that the body of the victim was sent toCHC Nalagarh for conducting the post-mortem from wherethe Medical Officer had referred the body of the victim forpost-mortem to IGMC, Forensic Department, Shimla.

23. So far as the homicidal death of the deceased isconcerned, suffice it to say that through the evidence ofPW-17, Dr. Piyush Kapila, Associate Professor, ForensicMedicine, IGMC Shimla, H.P., the prosecution hassucceeded in establishing that the death of the childvictim was a homicidal one. He had performed post-mortem on the dead body of the deceased and submitted his report Ext. PW-17/B as under:- “List of Antemortem Injuries

1. Multiple abraded contusions was present inan area of 7x5 cm over left side of face,preauricular area, ear and temporal region. Onreflection of scalp left temporalis muscle contused.No under lying fracture of skull or facial bones.On opening the skull cap no extraduralhaemorrhage present, but on opening dura grosssubdural bleed present over frontal temporal areaof left side and also on medial aspect of righthemisphere around falx cerebri.

2.5X5 cm abraded (pressure) contusionpresent over right side of neck just below angle ofmandible resembling finger like pattern with grosscontusion below after opening skin andsubcutaneous tissue, deep up to muscles. Linearabraded contusion 2 x0.5 cm on Helix of rightpinna also present.

3. 6X7 cm abraded, pressure contusionpresent just below injury No.2 on right side ofneck, reddish. After opening skin there is gross extravasation of blood in sub cutaneous tissueand muscles. The hematoma around thyroidgland present and extending upto uppermediastinum.

4. 2x2 cm, round contusion, reddish presentover right submandibular area with grosscontusion in subcutaneous tissue andsubmandibular gland after opening the skin.

5. Gross contusion over clavicular area of bothsides with multiple abrasion reddish. On openinggross contusion present below the skin.

6.2 cm long oblique red scratch abrasion onposterior aspect of right arm in lower 1/3 rdalongwith ½ cm abrasion just blow & distal toinjury explained earlier in the para.

7. Multiple small, dotted pressure abrasions ofvarious sizes and shapes present overposterior /extensor aspect of left forearm in anarea of 17cm x 3 cm.

8. Gross third degree perineal tear in vaginalcanal, perineal skin perineal muscles extendinginto anal canal. Walls of vaginal and anal canalare ruptured and forming a single large openingextending to abdominal cavity & internal organsvisible from the opening.”

On opening the abdominal cavity, whole of thelarge intestine was not present. There were twowooden sticks present inside the peritonealcavity entangled in mesentary.

1. 14 cm in length maximum diameters 2 cmpointed and broken.

2. Splinter from above wooden stick presentseperately in peritoneal cavity entangled in tissuemeasuring 7 cm with maximum width 1 cm.

.........After the thorough examination of thedeadbody we were of the opinion that thedeceased died as a result of manaul strangulation in case of gross perineal tear andforeign body insertion into genitals reaching up toabdominal wall. Homicidal in nature.

The probable time which might haveelapsed between death and postmortem wasopined to be 48 to 72 hours and that which mighthave elapsed between injury and death wasopined to be immediate.......”

24. Thus, having regard to the said evidence of PW- 17 and the post-mortem report Ext. PW-17/B, prepared byhim, there remains no shadow of doubt that the victim,aged about 7 years was subjected to the sexual assaultand had died due to manual strangulation in case of grossperineal tear and foreign body insertion into genitalsreaching upto abdominal wall. Thus, her death was ahomicidal death and not the death in ordinary course ofnature.

25. So far as the age of the victim is concernedPW-7, the complainant, who is father of the victim, hasdeposed that the victim was born on 22.07.2009 and heproduced the birth certificate Ext. P-22 before the police inthis respect. The birth record of the victim was also gotverified from Gram Panchayat, Raipur of DistrictMushridabad, West Bengal. In this regard, certificate Ext.

PW-10/C was issued by the Pradhan of Gram Panchayat,Raipur. Copy of birth certificate register Ext. PW-10/D hadbeen obtained from Sub-Registrar Birth & Death, RaipurPanchayat. PW-11, Pradhan-cum-sub Registrar (Birth andDeath), Gram Panchayat, Raipur, brought the original birthrecord of the victim as entered in the birth Register of GramPanchayat, Raipur and as per the record, date of birth of thevictim was 22.07.2009.

26. Hence, in view of the aforesaid evidenceproduced on record, it has been established that thevictim was born on 22.07.2009 and she was around sevenyears and seven months of age on the date of incident i.e.20.02.2017. As such, it has been proved beyondreasonable doubt by the prosecution that the victim wasminor and below eight years of age at the time of incident. 27.Now the next question which is to be consideredis whether the accused is the author of the death of thevictim after committing sexual assault on her. The case ofthe prosecution is that the victim was last seen alive in thecompany of the accused. In this respect, the prosecutionhas relied upon the testimonies of PW-2, brother of the

victim and another witness i.e. PW-4, Manmohan Dass and their statements corroborated by the followingcircumstances:- “(1) The accused while in police custody made adisclosure statement under Section 27 of theIndian Evidence Act and got recovered some ofhis clothes as well as wrapper of Kurkure.

(2) Presence of DNA profile of the victim on thesample of the pubic hair of the accused and onhis jeans.”

28. Before coming to the conclusion whether the victim and the accused were last seen together, we mayfirst discuss the law on the subject. The theory of 'last seentogether' is one where two persons are 'seen together’ aliveand after an interval of time, one of them is found alive and the other dead. If the period between the two is short,presumption as to the person alive being the author ofdeath of the other can be drawn. Time gap should be suchas to rule out possibility of somebody else committing thecrime.

29. In State of Goa Vs. Sanjay Thakran & Anr.,

(2007) 3 SCC 755, the Hon’ble Apex Court observed thatthere can be no fixed or straight jacket formula for the duration of time gap in this regard and it would dependupon the evidence led by the prosecution to remove thepossibility of any other person meeting the deceased in theintervening period, Para 34 of the judgment is reproducedas under:- “ 34. From the principle laid down by this Court,the circumstance of last-seen together wouldnormally be taken into consideration for findingthe accused guilty of the offence charged withwhen it is established by the prosecution that thetime gap between the point of time when theaccused and the deceased were found togetheralive and when the deceased was found dead isso small that possibility of any other person beingwith the deceased could completely be ruled out.The time gap between the accused persons seenin the company of the deceased and the detectionof the crime would be a material consideration forappreciation of the evidence and placing relianceon it as a circumstance against the accused. But,in all cases, it cannot be said that the evidence oflast seen together is to be rejected merely becausethe time gap between the accused persons andthe deceased last seen together and the crimecoming to light is after a considerable longduration. There can be no fixed or straight jacketformula for the duration of time gap in this regardand it would depend upon the evidence led by theprosecution to remove the possibility of any otherperson meeting the deceased in the interveningperiod, that is to say, if the prosecution is able tolead such an evidence that likelihood of anyperson other than the accused, being the author

the crime, becomes impossible, then the evidenceof circumstance of last seen together, althoughthere is long duration of time, can be consideredas one of the circumstances in the chain ofcircumstances to prove the guilt against suchaccused persons. Hence, if the prosecution provesthat in the light of the facts and circumstances ofthe case, there was no possibility of any otherperson meeting or approaching the deceased atthe place of incident or before the commission ofthe crime, in the intervening period, the proof oflast seen together would be relevant evidence. Forinstance, if it can be demonstrated by showingthat the accused persons were in exclusivepossession of the place where the incidentoccurred or where they were last seen togetherwith the deceased, and there was no possibilityof any intrusion to that place by any third party,then a relatively wider time gap would not affectthe prosecution case.”

30. In Ganpat Singh Vs. State of Madhya

Pradesh, AIR 2017 Supreme Court 4839, after taking noteof the decisions of the Hon’ble Apex Court that the lastseen evidence assumes significance when the lapse of timebetween the point when the accused and the deceasedwere seen together and when the deceased is found dead isso minimal as to exclude the possibility of a superveningevent involving the death at the hands of another.Paragraph No. 10 of the judgment, reads as under:- "10 Evidence that the accused was last seen inthe company of the deceased assumessignificance when the lapse of time betweenthe point when the accused and the deceasedwere seen together and when the deceased isfound dead is so minimal as to exclude thepossibility of a supervening event involving thedeath at the hands of another. The settledformulation of law is as follows :

"The last seen theory comes into play where thetime gap between the point of time when theaccused and deceased were seen last aliveand when the deceased is found dead is sosmall that possibility of any person other thanthe accused being the author of crime becomesimpossible. It would be difficult in some casesto positively establish that the deceased waslast seen with the accused when there is a longgap and possibility of other persons coming inbetween exists. In the absence of any otherpositive evidence to conclude that accused anddeceased were last seen together, it would behazardous to come to a conclusion of guilt inthose cases."

31. Thus, in view of the aforesaid principles, it is to be seen in the facts and circumstances of this case as towhether the court below was right in invoking the "lastseen theory and whether the prosecution has succeeded inestablishing by definite evidence that the deceased wasseen alive in the company of the accused in such closeproximity of time so as to exclude the possibility of a third person entering in the scene of crime in all reasonableness,and, thus, enabling the Court to draw a reasonableinference against the accused to shift onus on the accusedto explain the circumstance in accordance with theprovisions of Section 106 of the Evidence Act.

32. So far as the first point regarding last seen ofthe victim with the accused is concerned, it is relevant torefer to the statements of PW-2, brother of the victim andPW-4, Manmohan Dass.

33. PW-2, brother of the victim, who was 10 yearsold, has stated that the accused present in the Court tookher sister towards Temple and nearby jungle on that day at3:00 p.m. However, he could not state the date of theoccurrence. In cross-examination, he has stated that hewas playing with marbles with his friends, whenaccused took his sister. He also stated that he disclosedthis fact to his father on the same day around 8:00 p.m.after he returned from his duty. Although he has beenexamined without oath, but, despite that his testimonyinspires confidence, as his statement is quite natural and

true with respect to the fact that he had seen the accusedtaking her sister (victim) towards Temple and nearbyjungle.

34. The Hon’ble Supreme Court in Dattu Ramrao Sakhare and Others vs. State of Maharashtra, (1997) 5

SCC 341, has held that a child witness if found competentto depose to the facts and reliable one, such evidence could be the basis of conviction. The relevant portion ofparagraph 5 of the judgment reads as under:- “5…………...A child witness if found competent todepose to the facts and reliable one such evidencecould be the basis of conviction. In other wordseven in the absence of oath the evidence of a childwitness can be considered under Section 118 ofthe Evidence Act provided that such witness isable to understand the questions and able to giverational answers thereof. The evidence of a childwitness and credibility thereof would dependupon the circumstances of each case. The onlyprecaution which the court should bear in mindwhile assessing the evidence of a child witnessis that the witness must be a reliable one andhis/her demeanour must be like any othercompetent witness and there is no likelihood ofbeing tutored. There is no rule or practice that inevery case the evidence of such a witness becorroborated before a conviction can be allowed tostand, but as a rule of prudence the court alwaysfinds it desirable to have the corroboration to such evidence from other dependable evidence onrecord………...”

35. The statement of PW-2 is further corroborated by PW-4 Manmohan Dass, who deposed that thecomplainant was his tenant and was residing in one roomon the ground floor. The accused was also known to himand was residing with his father as tenant in the samebuilding on first floor. On 20.02.2017, the accused came tohis shop at about 2:00 p.m. and purchased one packet ofKurkure. Number of children were playing near thebuilding including the girl. He saw the accused taking thevictim towards the Temple. However, on the next day hecame to know that dead body of the victim was found inthebushesneartheTemple.Incross-examination, he deposed that his building is two storeyed.Old Village Judi Khurd is adjoining to his building. Thereare other residential houses on the Barotiwala road. Hedenied that his shop is not visible from the lintel of thebuilding. He deposed that he came to know about theincident on 21.02.2017 from the public and policerecorded his statement on the same day. He denied the suggestion of the defence counsel that the accused hadneither visited his shop on 20.02.2017, nor he purchasedKurkure. Both PW-2 and PW-4 were cross-examined atlength, however, nothing favourable could be elicited fromtheir cross-examination and their statements remainedun-impeached to the effect that the victim was last seenalive with the accused.

36. Thus, from the statements of PW-2 and PW-4, itis revealed that the victim was last seen alive with theaccused prior to the recovery of her dead body from theforest. As observed earlier, from the statement of PW-1,duly corroborated by complainant PW-7 and InvestigatingOfficer PW-18, it has been established that dead body ofthe victim was recovered on 21.02.2017 and theInvestigating Officer had prepared inquest report on21.02.2017 at 8:00 p.m. and thereafter the body was sentfor conducting post-mortem. The perusal of the post-mortem report, Ext. PW-17/B reveals that the body wasreceived at 10:30 a.m. on 23.02.2017 and the examinationwas conducted at 11:45 a.m. and it has been concluded in the post-mortem report that probable duration of the deathwas within 48 to 72 hours of the time of post-mortem. Assuch, it has become clear that the victim was murderedwithin probable time of 11:45 a.m. on 20.02.2017 to 11:45a.m. of 21.02.2017, which suggests that there was aminimal amount of time gap between the death of thevictim and time when she was seen alive alongwith theaccused.

37. It is well-settled that the burden to prove theguilt of the accused is always on the prosecution. If theprosecution has succeeded in proving the fact by definiteevidence that the deceased was last seen alive in thecompany of the accused, a reasonable inference could bedrawn against the accused and only thereafter the onuscan be shifted on the accused under Section 106 of theIndian Evidence Act. The last seen theory i.e. the evidencethat the deceased was last seen alive in the company of theaccused is an important link in the chain of circumstancesthat would point towards the guilt of the accused withsome certainty. As observed in Nizam Vs. State of Rajasthan, AIR 2015 Supreme Court 3430, the "last seentheory" holds the courts to shift the burden of proof to theaccused and the accused to offer a reasonable explanationas to the cause of death of the deceased. The principle isbased on the provisions of Section 106 of the IndianEvidence Act which lay down that when any fact isestablished within the knowledge of the person, the burdenof proving that fact is upon him. Thus, if a person is lastseen with the deceased, he must offer an explanation as tohow and when he parted company. He must furnish anexplanation which appears to the Court to be probable andsatisfactory. If he does so he must be held to havedischarged his burden. If he fails to offer an explanation onthe basis of facts within his special knowledge, he fails todischarge the burden cast upon him by Section 106 of the Indian Evidence Act. It has been held in paragraph 15 ofthe judgment as under:- “15.Elaborating the principle “last seen alive” inState of Rajasthan Vs. Kashi Ram, (2006) 12 SCC254, (AIR 2007 SC 144), the Court held as under:-“23. It is not necessary to multiply withauthorities. The principle is well settled. Theprovisions ofSection 106of the Evidence Act itself

are unambiguous and categoric in laying downthat when any fact is especially within theknowledge of a person, the burden of proving thatfact is upon him. Thus, if a person is last seenwith the deceased, he must offer an explanationas to how and when he parted company. He mustfurnish an explanation which appears to the courtto be probable and satisfactory. If he does so hemust be held to have discharged his burden. If hefails to offer an explanation on the basis of factswithin his special knowledge, he fails todischarge the burden cast upon him by Section106 of the Evidence Act. In a case resting oncircumstantial evidence if the accused fails tooffer a reasonable explanation in discharge of theburden placed on him, that itself provides anadditional link in the chain of circumstancesproved against him.Section 106 does not shift theburden of proof in a criminal trial, which isalways upon the prosecution. It lays down therule that when the accused does not throw anylight upon facts which are specially within hisknowledge and which could not support anytheory or hypothesis compatible with hisinnocence, the court can consider his failure toadduce any explanation, as an additional linkwhich completes the chain. The principle has beensuccinctly stated in Naina Mohd., Re. (AIR 1960Mad 218)”

The above judgment was relied upon andreiterated inKiriti Pal Vs. State of West Bengal,(2015) 5 Scale 319: (2015 AIR SCW 3545).

38. Hence, the onus shifts upon the accused under Section 106 of the Indian Evidence Act to offer an explanation that he was not the last person who was withthe victim at the time of commission of offence. However,in his statement recorded under Section 313 Cr. P.C., theaccused has only stated that he was innocent and a falsecase has been registered against him at the instance of thecomplainant, who had enmity with him due to some moneymatter and had earlier also quarreled with him andthreatened him to meet with dire consequences. Theaccused has failed to explain that what had happened tothe victim during the intervening time when he was lastseen with the victim taking her towards the Temple andbetween the death of the victim. It is not the case of theaccused that after taking victim towards Temple, he hadleft her or that some other person was in the company ofthe victim.

39. The object of recording the statement of theaccused under Section 313 Cr.P.C. is to bring to the noticeof the accused the incriminating evidence and to give himan opportunity to explain the same, if he chooses to do so.The essential features of Section 313 Cr.P.C. and the principles of law enunciated in various judgments have been summarized in case of Ashok kumar Vs. State of Haryana, reported in (2010) 12 SCC 350. The paragraphs29 to 31 thereof read as under:-

"29. Now we may proceed to discuss the evidenceled by the prosecution in the present case. Inorder to bring the issues raised within a narrowcompass we may refer to the statement of theaccused made under Section 313,Cr.P.C. It is asettled principle of law that dual purpose issought to be achieved when the Courts complywith the mandatory requirement of recording thestatement of an accused under this provision.Firstly, every material piece of evidence which theprosecution proposes to use against the accusedshould be put to him in clear terms and secondly,the accused should have a fair chance to give hisexplanation in relation to that evidence as well ashis own versions with regard to allegedinvolvement in the crime. This dual purpose has tobe achieved in the interest of the properadministration of criminal justice and inaccordance with the provisions of the Cr.P.C..Furthermore, the statement under Section 313ofthe Cr.PC can be used by the Court in so far as itcorroborates the case of the prosecution. Ofcourse, conviction per se cannot be based uponthe statement under Section 313 of the Cr.PC.

30. Let us examine the essential features of thissection and the principles of law as enunciated byjudgments of this Court, which are the guidingfactor for proper application and consequenceswhich shall flow from the provisions of Section313 of the Cr.PC. As already noticed, the object ofrecording the statement of the accused underSection 313 of the Cr.PC is to put all incriminatingevidence to the accused so as to provide him an opportunity to explain such incriminatingcircumstances appearing against him in theevidence of the prosecution. At the same time,also permit him to put forward his own version orreasons, if he so chooses, in relation to hisinvolvement or otherwise in the crime.

31. The Court has been empowered to examinethe accused but only after the prosecutionevidence has been concluded. It is a mandatoryobligation upon the Court and besides ensuringthe compliance thereof, the Court has to keep inmind that the accused gets a fair chance toexplain his conduct. The option lies with theaccused to maintain silence coupled withsimplicitor denial or, in the alternative, to explainhis version and reasons, for his allegedinvolvement in the commission of crime. This isthe statement which the accused makes withoutfear or right of the other party to cross-examinehim. However, if the statements made are false,the Court is entitled to draw adverse inferencesand pass consequential orders, as may be calledfor, in accordance with law. The primary purposeis to establish a direct dialogue between the Courtand the accused and to put every importantincriminating piece of evidence to the accused andgrant him an opportunity to answer and explain.Once such a statement is recorded, the nextquestion that has to be considered by the Court isto what extent and consequences such statementcan be used during the enquiry and the trial. Overthe period of time, the Courts have explained thisconcept and now it has attained, more or less,certainty in the field of criminal jurisprudence."

40. In the instant case, though the incriminating evidence was brought to the notice of the appellant/accused while recording his statement, but, the accused

had failed to explain the same. The accused was given theopportunity to answer the incriminating circumstancewhich had come on record, however, except for the denial,he had not made any attempt to explain the same.Furthermore, no suggestion has been put by the defencecounsel to the complainant that he was having enmity withthe accused. He has even failed to lead any evidence in hisdefence despite opportunity granted to him in this respect.Thus, in view of the law laid down by the Hon’ble ApexCourt, the accused has failed to rebut the prosecutionevidence with respect to the last seen theory. Hence, it hasbeen duly established that victim was last seen alive in thecompany of the accused, which circumstance establishesthe guilt of the accused.

41. Further, while in police custody, the accusedgot recovered his red coloured shirt and blue colouredjeans from his house, which was worn by him at the timeof incident. PW-12, Som Dutt, has deposed that on24.02.2017, the accused while in police custody made adisclosure statement in his presence and also in the presence of Naushad Ali that he can get his red colouredshirt and blue coloured jeans recovered from his house,which was worn by him at the time of incident, i.e. on20.02.2017 and in this regard, memo Ext. PW-12/A wasprepared, which bears his signatures as also thesignatures of Naushad Ali and the accused. He furtherdeposed that on the same day while in custody theaccused led the police party to village Judi Khurd and fromthe second floor of the building he got recovered redcoloured shirt and blue coloured jeans from his room,which was kept on the shelf behind the bag. He alsodeposed that on the same day, the accused led the policeparty towards bushes, where one red coloured wrapper ofKurkure was recovered.

42. PW-18 also corroborated the statement ofPW-12 to the effect that while in police custody, theaccused made a disclosure statement and got recovered hisred coloured shirt and blue coloured jeans from his house,which were worn by him at the time of incident, i.e.20.02.2017 and also got recovered red coloured wrapper of Kurkure.

43. So far as the scientific evidence is concerned,PW-13 Dr. Yuvraj Shori, has deposed that on 23.02.2017he medically examined the accused and issued MLC andalso obtained the blood sample of the accused on FTACard, which he handed over to the police after seal. Hefurther deposed that at the time of medical examination ofthe accused, he had taken samples of the penile swab,pubic hair and underwear of the accused which weresealed and then handed over to the police on 23.02.2017.44.PW-17, Dr. Piyush Kapila, has deposed thatclothes of the victim, Ext. P-30 to P-32 and black threadaround the neck of the victim Ext. P-33 were sealed andhanded over to the police. He also deposed that sample ofthe blood was taken from the body of the deceased on FTACard, which was handed over to the police. He furtherdeposed that wooden stick present inside the peritonealcavity entangled in mesentary was sealed, preserved andhanded over to the police.

45. PW-16, Khajana Ram, has deposed that articles

45. PW-16, Khajana Ram, has deposed that articles seized/preserved in this case were sent to SFSL, Junga,vide letter Ext. PW-16/F, which was signed by him. PW-8,Constable Bahadur Singh has deposed that on15.03.2017, vide RC No. 4/16-17 he had deposited therecovered articles at SFSL, Junga and receipt was handedover to MHC. PW-10, Inspector Rita, has deposed that DNAprofile result Ext. PW-10/E alongwith another report fromSFSL, Junga Ext. PW-10/F were received and made part ofthe challan. She further deposed that FSL reports Ext.PW-10/G and Ext. PW-10/H were also received from FSLand made part of the challan. Thus the prosecution hasduly proved the proper preservation of these samples withMHC (PW-19) and that these were handed over to PW-8,who deposited it at the Laboratory.

46. The prosecution has also placed reliance uponthe FSL reports Ext. PW-10/E, Ext. PW-10/F, Ext. PW-10/G and Ext. PW-10/H. The DNA profile report Ext. PW-10/E, reveals that DNA profile pertaining to a femaleindividual was obtained from the pants of accused Akash,Ext. P-25 and the said DNA profile completely matched with the DNA profile obtained from the blood sample of thevictim. It is further concluded that a mixed autosomal STRDNA profile was obtained from the pubic hair of accusedAkash, from which two DNA profiles could be identifiedand one of the said profile matched with the DNA profileobtained from the blood sample on FTA Card of the victim,while the other matched with the DNA profile obtainedfrom the blood sample on FTA Card of accused Akash. Thereport also concludes that the DNA profile obtained fromthe part of intestine completely matched with the DNAprofile obtained from the blood sample on FTA Card of thevictim.

47. Thus, DNA report, Ext. PW-10/E hasestablished the connection of accused with the crime, dueto presence of DNA profile of the victim on the jeans of theaccused as well as on the sample of his pubic hair.Furthermore, as per FSL report, Ext. PW-10/G, bloodgroup of victim was ‘A’ and human blood of group ‘A’ wasdetected on the underwear of the accused and humansemen was also detected on the same. The perusal of the report further reveals that the human blood of group ‘A’was detected on the underwear and T-shirt of the victimas well as the anal, perianal and vaginal swab of thevictim. The accused has failed to explain the presence of DNA profile of the victim on the sample of his pubic hairand on his jeans.

48. Thus, from the perusal of the entire evidence on record, the following incriminating circumstances haveclearly been established against the accused:- “(1) That on the afternoon of 20.02.2017, he was seenwith the victim and was also seen taking the victimtowards the temple and nearby forest;

(2) That the dead body of the victim was recovered on21.02.2017 in a forest adjoining to the temple;

(3) The accused has failed to explain that after thetime he was seen with the victim, there were any otherevent which rules out his culpability; and

(4) The accused has failed to give any explanation asto how the DNA profile of the deceased victim wasfound on the sample of his pubic hair as well as thaton the jeans.”

49. The chain of aforesaid incriminating

circumstances duly proved by the prosecution, taken cumulatively formed a chain so complete that it unerringlypointed to the guilt of the accused so far as the charges

leveled against him are concerned. At this stage it wouldbe relevant to note that as per Section 29 of the POCSOAct, where the person is prosecuted for committing orabetting or attempting to commit any offence underSections 3,5,7, and Section 9 of the Act, the Court shallpresume that such person had committed or abetted orattempted to commit the offence as the case may be,unless the contrary is proved. The presumption of culpablemental state of the accused is also envisaged in Section 30of the said Act. In the instant case, as observed earlier, theaccused had failed to rebut the said statutory presumptioncontained in the Act either by bringing on record the factsduring the course of cross-examination of witnesses orduring his statement recorded under Section 313 ofCr.P.C.50. Having regard to the aforesaid chain ofincriminating circumstances proved by the prosecution,and to the legal provisions contained in the POCSO Actand in the IPC, the Court is of the opinion that it has dulybeen established by the prosecution that the accused had committed murder of the victim punishable under Section302 of the IPC. and aggravated penetrative sexual assaulton the victim, punishable under Section 6 of the POCSOAct as she was under 12 years of age. It has also beenduly proved that the accused had committed rape uponher, as described in Section 375 of the IPC punishableunder Section 376 of the IPC. Therefore, the prosecutionhas conclusively proved the guilt of the appellant/accusedbeyond reasonable doubt.

51. As regards the sentence of death penaltyawarded by the Special Court, the learned Legal AidCounsel for the appellant/accused submitted that thedeath penalty should be imposed only when the alternativeof life-imprisonment is totally inadequate. He alsosubmitted that the Special Court ought to have consideredthe age of the accused and the probability that the accusedcan be reformed and rehabilitated. According to him, in acatena of decisions, the Hon’ble Supreme Court in similarcases has substituted the death penalty by life-imprisonment. He has also relied upon several decisions, including the latest decisions in case of Vijay Raikar vs.State of M.P., reported in (2019) 4 SCC 210, ViranGyanlal Rajput vs. State of Maharashtra, reported in(2019) 2 SCC 311, as also in cases of Raju vs. State ofHaryana, (2001) 9 SCC 50 and Amit vs. State of U.P.,(2012) 4 SCC 107, to submit that the instant case can notfall within the category of 'rarest of rare' case.

52. As against that, the learned Deputy AdvocateGeneral has vehemently submitted that this case is one ofthe rarest of rare cases, where the seven years old helplesschild was sexually assaulted and brutally murdered.

53. Whether the case falls within the rarest of rarecase so as to impose death penalty or not, is always amatter of great concern for every Court. Though, theHon’ble Supreme Court in various decisions dealing withvarious situations has laid down certain guidelines as towhich case should be treated as the rarest of rare case,there is no straight-jacket formula and yardstick set todecide the vexed issue.

54. In the case of Bachan Singh vs. State of

Punjab, (1980) 2 SCC 684, the Hon’ble Supreme Courthad laid down elaborate guidelines as to what are themitigating circumstances and aggravating circumstanceswhich should be taken into consideration before awardingthe extreme penalty of death. Thereafter in Machhi Singh and Ors. vs. State of Punjab (1983) 3 SCC 470, theHon’ble Supreme Court culled out the guidelines indicated in Bachan Singh vs. State of Punjab (supra) as under:- "38. In this background the guidelines indicatedin Bachan Singh's case (supra) will have to beculled out and applied to the facts of eachindividual case where the question of imposing ofdeath sentences arises. The followingpropositions emerge from Bachan Singh's case:

(i) the extreme penalty of death need not beinflicted except in gravest cases of extremeculpability;

(ii) Before opting for the death penalty thecircumstances of the 'offender' also require to betaken into consideration alongwith thecircumstances of the 'crime'.

(iii) Life imprisonment is the rule and deathsentence is an exception. In other words deathsentence must be imposed only when lifeimprisonment appears to be an altogetherinadequate punishment having regard to therelevant circumstances of the crime, and provided, and only provided the option to imposesentence of imprisonment for life cannot beconscientiously exercised having regard to thenature and circumstances of the crime and all therelevant circumstances.

(iv) A balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doingso the mitigating circumstances has to beaccorded full weightage and a just balance hasto be struck between the aggravating and themitigating circumstances before the option isexercised."

55. There is no quarrel with the settled legal position that the death sentence should be awarded inrarest of rare cases. However, the question that arises forconsideration in the present case is as to whether this is ararest of rare case.

56. In Bachan Singh Vs. State of Punjab (supra), wherein the Apex Court has enjoined giving importance tothe antecedents of the prisoner, apart from the gravity ofthe crime, for reaching the conclusion whether only adeath sentence was appropriate. One important mitigatingcircumstance to be taken into account was the age of theaccused and as to whether the accused had a previouscriminal history, or whether there was any material tosuggest that his reform was wholly improbable and that he was likely to commit such crimes in the future. Paragraphs206 and 209 of the said judgment are reproduced asunder:- “206. Dr. Chitale has suggested these mitigatingfactors :

Mitigating circumstances: In the exercise of itsdiscretion in the above cases, the Court shall takeinto account the following circumstances :

(1) That the offence was committed under theinfluence of extreme mental or emotionaldisturbance.

(2) The age of the accused. If the accused is youngor old, he shall not be sentenced to death.

(emphasis supplied).

(3) The probability that the accused would notcommit criminal acts of violence as wouldconstitute a continuing threat to society.

(4) The probability that the accused can bereformed and rehabilitated.

The State shall by evidence prove that theaccused does not satisfy the conditions (3) and (4)above.

(5) That in the facts and circumstances of the casethe accused believed that he was morally justifiedin committing the offence.

(6) That the accused acted under the duress ordomination of another person,

(7) That the condition of the accused showed thathe was mentally defective and that the said defect impaired his capacity to appreciate thecriminality of his conduct.

209. There are numerous other circumstancesjustifying the passing of the lighter sentence; asthere are countervailing circumstances ofaggravation. "We cannot obviously feed into ajudicial computer all such situations since theyare astrological imponderables in an imperfectand undulating society." Nonetheless, it cannot beoveremphasised that the scope and concept ofmitigating factors in the area of death penaltymust receive a liberal and expansive constructionby the courts in accord with the sentencing policywrit large in Section 354 (3). Judges should neverbe blood-thirsty. Hedging of murderers has neverbeen too good for them. Facts and figures, albeitincomplete, furnished by the Union of India, showthat in the past, Courts have inflicted the extremepenalty with extreme infrequency-a fact whichattests to the caution and compassion which theyhave always brought to bear on the exercise oftheir sentencing discretion in so grave a matter. Itis, therefore, imperative to voice the concern thatcourts, aided by the broad illustrative guidelinesindicated by us, will discharge the onerousfunction with evermore scrupulous care andhumane concern, directed along the highroad oflegislative policy outlined in Section 354 (3), viz,that for persons convicted of murder, lifeimprisonment is the rule and death sentence anexception. A real and abiding concern for thedignity of human life postulates resistance totaking a life through law's instrumentality. Thatought not to be done save in the rarest of rare cases when the alternative option isunquestionably foreclosed.

57. In Amit vs. State of U.P., (2012) 4 SCC 107,where a 3 year old girl had been murdered by a 28 year oldman, the Court converted a sentence of death to asentence of life imprisonment, to run for the whole life ofthe prisoner, as he had no criminal antecedents, and itwas not likely that the accused would repeat the offence.Thus, it was mentioned in the decision in para 22 of thesaid judgment, as under:-

"22. In the present case also, we find that whenthe appellant committed the offence he was ayoung person aged about 28 years only. There isno evidence to show that he had committed theoffences of kidnapping, rape or murder on anyearlier occasion. There is nothing on evidence tosuggest that he is likely to repeat similar crimesin future. On the other hand, given a chance hemay reform over a period of years. Hence,following the judgment of the three-Judge Benchin Rameshbhai Chandubhai Rathod (2) v. State ofGujarat, (2011) 2 SCC 764 we convert the deathsentence awarded to the appellant toimprisonment for life and direct that the lifesentence of the appellant will extend to his fulllife subject to any remission or commutation atthe instance of the Government for good andsufficient reasons."

58. In Viran Gyanlal Rajput Vs. State of

Maharashtra, (2019) 2 SCC 311, where a 13 years old girlhad been raped and killed by a 22 years old boy, theHon’ble Supreme Court converted the sentence of death toa sentence of life imprisonment. Paragraphs 25 and 26 ofthe aforesaid judgment read as under:- “25. Though we agree that the crimecommitted is of an abominable nature, itcannot be said to be of such a brutal, depraved,heinous or diabolical nature so as to fall intothe category of the rarest of rare cases and invitepunishment with death. We also find ourselvesunable to agree with the view of the Courts thatthe appellant is such a menace to society that hecannot be allowed to stay alive. On the otherhand, we are of the view that the prosecution didnot establish that the appellant was beyondreform, especially given his young age. We arealso mindful of the appellant’s lack of criminalantecedents prior to the commission of thiscrime, and of his post incarceration conduct,which in no way suggests the impossibility of hisreform. It would be pertinent to observe at thispoint that although the Trial Court noted his lackof remorse during the hearing, and the HighCourt noted his lack of remorse after committingthe crime, as he was found calmly wanderingaround the locality, this does not in any wayindicate that there is no scope of reform for theappellant.

26. Thus, neither the circumstances of the crimenor the circumstances of the criminal, i.e. theappellant, would go to show that the instantmatter falls into the category of the rarest of rarecases, or that the sentence of life imprisonmentis unquestionably foreclosed and grosslydisproportionate. Therefore, in the totality of thefacts and circumstances of this case, we find itfit to commute the death sentence of theappellant to life imprisonment.

59. In Vijay Raikwar Vs. State of Madhya

Pradesh, (2019) 4 SCC 210, where a minor girl of sevenand half years of age was raped and murdered by theaccused, aged about 19 years, the Hon’ble Supreme Courtconverted the sentence of death to a sentence of lifeimprisonment. Paragraph 10 of the aforesaid judgmentreads as under:-

“10. Now, so far as the request and the prayermade on behalf of the accused to commute thedeath sentence to life imprisonment is concerned,having heard the learned counsel appearing onbehalf of the accused on the question of deathsentence imposed by the learned Sessions Court,confirmed by the High Court and considering thetotality and circumstances of the case and thedecisions of this Court in the cases of BachanSingh (supra) and Shyam Singh (supra), we are ofthe opinion that the present case does not fallwithin the category of ‘rarest of rare case’warranting death penalty. We have considered each of the circumstance and the crime as well asthe facts leading to the commission of the crimeby the accused. Though, we acknowledge thegravity of the offence, we are unable to satisfyourselves that this case would fall in the categoryof ‘rarest of rare case’ warranting the deathsentence. The offence committed, undoubtedly,can be said to be brutal, but does not warrantdeath sentence. It is required to be noted that theaccused was not a previous convict or aprofessional killer. At the time of commission ofoffence, he was 19 years of age. His jail conductalso reported to be good. Considering theaforesaidmitigatingcircumstancesandconsidering the aforesaid decisions of this Court,we think that it will be in the interest of justice tocommute the death sentence to lifeimprisonment.”

60. In Raju vs. State of Haryana, (2001) 9 SCC

50, the appellant had committed the rape and murder ofthe 11 year old girl after enticing her with toffees. On hisarrest, his shirt and and pant had bloodstains and hisunderwear had blood and seminal stains. The accusedgave no explanation of the blood stains. The Hon’bleSupreme Court held that as the appellant appeared to haveacted without premeditation in giving two brick blows tothe deceased after she threatened to expose him, and hadno criminal antecedents, and it could not be concluded that he would be a danger to society, the sentence of deathawarded by the Courts below be commuted to a sentenceof imprisonment for life.

61. Coming to the facts of the instant case, we donot think that this is a ''rarest of rare case' in which deathpenalty should be imposed on the accused. The manner inwhich the deceased was raped and thereafter murderedmay be brutal, but it could have been a momentary lapseon the part of the accused. He had no premeditation forcommission of the offence. The offence may look heinous,but, under no circumstances, it can be said to be a rarestof rare case. The accused who has been awarded deathsentence was aged about 19 years only at the time ofcommission of offence and there is no evidence that theaccused had been involved in any other criminal casepreviously and it cannot be said that he would be amenace to society in future.The prosecution did notestablish that he was beyond reform. No material has beenplaced before us to draw such a conclusion. In ouropinion, the accused should have been given a chance by the trial court to reform himself. Therefore, the SpecialCourt had committed gross error in not following theguidelines issued by the Supreme Court in case of Bachan Singh vs. State of Punjab (supra) and in the case ofMachhi Singh and Ors. vs. State of Punjab (supra) bynot comparing the mitigating circumstances with theaggravating circumstances and also the fact that theaccused was only 19 years of age at the time ofcommission of offence.

62. On these considerations, we are of the view thatthe judgment of the trial judge, dated 14.01.2022convicting the accused as above, is upheld. However,considering the fact that accused was aged only about 19years at the time of commission of offence and is in theprime youth of his life, we are of the view that the deathpenalty awarded to him should be converted toimprisonment for life and direct that the life sentence ofthe accused will extend to his whole life subject to anyremission or commutation at the instance of theGovernment.

63. Accordingly, the appeal is partly allowed. Theimpugned order of sentence dated 17.02.2022 is modifiedto the extent that the death penalty awarded to theaccused under section 302 of the Indian Penal Code isconverted to life imprisonment and direct that the lifesentence of the accused will extend to his whole lifesubject to any remission or commutation at the instanceof the Government.

64. The reference No.1 of 2022 for confirming thedeath sentence, is rejected.

(Sabina)Judge

December 30, 2022

(raman)

(Sushil Kukreja) Judge