High Court of Punjab and HaryanaMRC/6/2024disposed of

State Of Punjab v. Partap Singh

2025-04-02Mr. Justice Gurvinder Singh Gill,Mr. Justice Jasjit Singh Bedi46 pages

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1. Abraded bruise reddish brown in colour of size 2 cm in width completely encircling the neck above the thyroid cartilage. The ligature mark was circular on left side and was extending obliquely upwards on the light lateral side. Underneath soft structures were showing infiltration of blood. Base was pale, hard and parchment like.

2. Reddish brown abraded bruise of size 2.3 x 1.2 cm present on the right side of face at angle of mandible, 6.5 cm below right ear lobule.

3. Reddish colour abrasion of size 1 x 0.5 cm present on the base of index finger of right hand on dorsal aspect.

4. Reddish colour bruise of size 3 x 2 cm was present on front of right thigh 8 cm from right iliac crest.

5. Reddish colour bruise of size 3.1 x 2.5 cm present on the inner side of right leg. 5 cm medial to right knee joint.

6. Reddish bruise of size 1.3 x 0.9 cm present on the left side of labia majora in its lower part at 6.00 o'clock position. Labia minora was roomy. Creamish white colour bloodstained fluid was coming out. On retraction of labia minora, vaginal orifice is visible. Hymen is torn posteriorly. On further examination, reddish brown colour abrasion in vagina is present.

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"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:3

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made :3 "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. " C-

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"32. The case unfolded by the prosecution through the witnesses to fix the culpability on the appellant constitute a chain of circumstances, including the "last seen theory". The deceased was lastly seen with the appellant by PW32 and PW34. `Last seen theory' is certainly applicable in a crime like the one on hand which was carried out on sly and in secrecy during night, in the absence of availability of any eye3witnesses. 32.1 In the decision in Nizam and Anr. v. State of Rajasthan [(2016) 1 SCC 550] this Court held that it would not be prudent to base conviction solely on `last seen theory'. This Court, obviously, sounded a caution that where time gap between `last seen' and `time of occurrence' is long it would be unsafe to base the conviction solely on the `last seen theory' and held that in such

circumstances, it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. 32.2 In State of Rajasthan v. Kashi Ram reported in (2006) 12 SCC 254, at paragraph 23 this Court held :

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.

In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., AIR 1960 Mad 218:1960 Crl LJ 620." 32.3 In Arabindra Mukherjee v.

appellant was last seen with the deceased, the onus is upon him to show that either he was not involved in the occurrence at all or that he had left the deceased at her home or at any other reasonable place. To rebut the evidence of last seen and its consequence in law, the onus was upon the accused to lead evidence in order to prove his innocence."

32.4 In Pattu Rajan v. State of Tamil Nadu [(2019) 4 SCC 771] this Court held in paragraph 63 thus :3 "It is needless to observe that it has been established through a catena of judgment of this court that the doctrine of last seen, if proved, shifts the burden of proof on to the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the case on hand, or furnishing false explanation would give rise to strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances." (Emphasis supplied) 32.5 The various aspects relating to the `last seen theory', derived from the aforementioned decisions, are well3settled and hence, we do not think it necessary to burden this judgment with further authorities on the subject.

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"53A. ,- .) /

.3(1) When a person is arrested on a charge of

committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner acting at the request of a police officer not below the rank of a sub3inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;

(i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and (v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it

to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub3Section (5) of that section."

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"21. Obviously, both the trial Court and the High Court answered the question as to who is the author of the crimes by relying on the circumstantial evidence. We have already taken note of the various circumstances relied on by the trial Court and subsequently by the High Court, to fix culpability on the appellant. Though the Courts concurrently found him guilty of the offences of rape and murder there is lack of concomitancy in respect of conclusions/findings on certain aspects and circumstances, as noted above. Before adverting to the said issue, it is only proper to deal with a crucial contention of the appellant founded on Section 53A of the Code of Criminal Procedure, which was added to the Code by Cr.P.C. (Amendment) Act, 2005 (Act 25 of 2005). The relevant portion of Section 53A(1) reads thus :3 "[53A.

Examination of person accused of rape by medical practitioner.

arrested person and to use such force as is reasonably necessary for that purpose."

22. The above extracted provision under Section 53A(1) Cr.P.C. would go to show that it provides for a detailed examination, (which term has been explained under Explanation (a) to Section 53A Cr.P.C.), of a person accused of an offence of rape or attempt to commit rape, by a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of 16 kilometers from the place where the offence has been committed, by any other registered medical practitioner. It is the said legal provision and the undisputed factual position of non3 conduct of DNA profiling of the samples of the appellant that made him to take up the contention of violation of Section 53A Cr.P.C.

In the said circumstances, he would further contend that there is absence of conclusive evidence to connect him with the samples taken from the body of the deceased. Certainly, non3conduct of DNA profiling in terms of the provisions under Section 53A Cr.P.C., is a flaw in the investigation. But then, the question emerged from the aforesaid indisputable position of not holding DNA profiling is whether the conviction of the appellant for the said offences, is liable to be set aside on that sole score.

23. There can be no doubt with respect to the position that a fair investigation is necessary for a fair trial. Hence, it is the duty of the investigating agency to protect the rights of both the accused and the victim by adhering to the prescribed procedures in the matter of investigation and thereby to ensure a fair, competent and effective investigation. Even while holding so, we cannot be oblivious of the well3nigh settled position that solely on account of defects or shortcomings in investigation an accused is not entitled to get acquitted. In other words, it also cannot be the sole reason for

interference with a judgment of conviction if rest of the evidence are cogent enough to sustain the same.

24. In the decision in Mir Mohammad Omar's case (supra), this Court held :3 "In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation."

(Emphasis added)

25. In the context of the contentions it is more appropriate to refer to the decision of this Court in Sunil v. State of Madhya Pradesh [(2017) 4 SCC 393]. It was a case of rape and murder of a four (4) year old child. A three3Judge Bench held herein thus : "3. At the very outset, we deal with the arguments advanced on behalf of the appellant that in the present case the report of DNA testing of the samples of blood and spermatozoa under Section 53A of the Code of Criminal Procedure, 1973 has not been proved by the prosecution. The prosecution has, therefore, failed to prove its case beyond reasonable doubt. Reliance in this regard has been placed on the decision of this Court in Krishan Kumar Malik v. State of Haryana [(2011) 7 SCC 130].

4. From the provisions of Section 53A of the Code and the decision of this Court in Krishan Kumar it does not follow that failure to conduct the DNA test of the samples taken from the

accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar (para 44), Section 53A really "facilitates the prosecution to prove its case". A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. It is to the other materials brought on record by the prosecution that we may now turn to."

26. Krishna Kumar Malik's case (referred supra) was rendered by a two3Judge Bench of this Court, wherein at paragraph 43 with respect to the matching of the semen, the following passage from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) was extracted thus :3 "Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods of 5 years. Nonmotile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months."

In paragraph 43 of Krishna Kumar Malik's case, after extracting the above, it was further held :

"Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellant."

This Court went on to hold thus in Paragraph 44 therein :3 "Now, after the incorporation of Section 53A in the Criminal Procedure Code w.e.f. 23.6.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused."

27. Evidently, the three Judge Bench in Sunil's case (supra) considered Krishna Kumar Malik's case carrying such observations and finding before coming to the conclusion that `a positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e., favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered'.

28. In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred (supra) we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the

accused alone in exclusion of all hypothesis of innocence in his favour.

29. As a matter of fact, the decision in Rajendra Pralhadrao Wasnik's case (supra), would also fortify our view. The Bench was considering review petitions in Criminal Appeal Nos.1453146 of 2011. That was a case involving rape and murder of a three (3) year old girl where the case was held as proved on the basis of circumstantial evidence. So also, in that case DNA evidence was not produced before the Court, in spite of samples being taken. Obviously, taking note of the unerring nature of the circumstantial evidence pointing only to the guilt of the accused and the other circumstances the trial Court convicted and awarded him capital punishment. The High Court confirmed not only the conviction but also the award of capital sentence.

Originally, this Court dismissed the appeals and thereafter, the dismissed review petitions were restored for consideration solely in view of a Constitution Bench decision of this Court in Mohd. Arif v. Supreme Court of India reported in (2014) 9 SCC 737. In paragraph 79, this Court in Rajendra Pralhadrao Wasnik's case held therein thus :3 "Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re3 integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case.

The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing.

two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant."

30. In the light of the above referred decisions, the contentions of the appellant founded on the factum of non3holding of DNA profiling and the provision under Section 53A , is only to be repelled.

As held in Sunil's case (supra), a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial Court and then by the High Court, in the instant case."

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"52. The next question is whether death sentence awarded by the trial Court and confirmed by the High Court for the conviction of the offence of murder be maintained or substituted? This penalty is awardable to a culprit only the category of the case falls under `rarest of rare cases', the culprit has become a threat to the society at large and beyond reformation and his elimination is the only way for eradication of the threat. For deciding the said question various aspects have to be considered. On a careful scanning of the consideration made by the trial Court as also the High Court for awarding the sentence for the conviction under Section 300 IPC, punishable under section 302 IPC, we are of the view that the question regarding the correctness of the death sentence awarded to the appellant requires further consideration, taking into account the statutory requirements under Section 354(3) Cr.P.C. For awarding termination of natural life, a

careful scrutiny is required. The statutory requirements under Section 354(3) Cr.P.C. are as under :

"When the conviction for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such offence."

53. On the aforesaid subject this Court has already enunciated the principles. A careful survey of such decisions was made by this very three3Judge Bench in the decision in Pappu v. The State of Uttar Pradesh (Criminal Appeal Nos.109731098/2018, pronounced on 9.2.2022. Paragraph 49 of the decision in Shankar Kishanrao Khade v. State of Maharashtra reported in (2013) 5 SCC 546, highlighting the requirement of application of `crime test', `criminal test' and `rarest of rate test' was referred therein. In the said paragraph, with reference to the previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) were narrated as hereunder : "49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. 47348, para 33) "`Aggravating circumstances 3 (Crime test)

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, 90 murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold3blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances 3 (Criminal test)

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.'"

This Court further said: 3 "52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R3R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment.

Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R3R test). R3R test depends upon the perception of the society that is "society3 centric" and not "Judge3centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive.

The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."

54. After taking into account the same and such other decisions specifically referred to therein, in Pappu's case (supra) it was held thus:3 "41. It could readily be seen that while this Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to the society's call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of `rarest of rare test' and then, its appropriate operation with reference to `crime test' and `criminal test'. The delicate balance expected of the judicial process has also led to another mid3way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature like the present one."

55. On going through the judgment of the trial Court and the High Court, we are of the considered view that in handing down capital sentence what had weighed with the Courts are the horrendous feature of commission of crime and the hapless state of the victim. The trial Court considered the question of sentence and awarded the same on the very same day on which the appellant was convicted. We shall not be understood to have held that this is absolutely illegal and impermissible. Ultimately, what is required is consideration of the aggravating and mitigating circumstances with application of mind. They were not given the proper attention while considering the question of awarding the sentence for conviction under Section 302 IPC, in the case on hand. In the said circumstances, we will proceed to consider the question of sentence in the present case bearing in mind the

principles enunciated by this Court in the matter of awarding the capital sentence. The trial Court as also the High Court arrived at the conclusion that the act of the appellant herein invited the extreme indignation of the community and therefore, it deserves a deterrent sentence so as to give a message to the society that such crimes should not be repeated by anyone. In short, we are of the considered view that the `crime test' and the `criminal test' require to be followed before awarding capital sentence, did not gather the required attention of the trial Court as also the High Court.

56. It is true that all murders are inhuman. For imposing capital sentence, the crime must be uncommon in nature where even after taking into account the mitigating circumstances the Court must be of the opinion that the sentence of imprisonment for life is inadequate and there is no alternative but to impose death sentence. The heinous and brutal nature of the commission of crime, viz., brutal rape and murder of an eight3year old girl child who is none other than the daughter of his own cousin, that too in a hapless situation, is definitely an aggravating circumstance. The nature of the injuries caused on the private parts of the victim as is evident from the evidence of PW10 with Ext.P17 report would definitely shock the conscience.

At the same time, the principles enunciated by this Court in the matter of awarding of death sentence and in such circumstances, the undisputed and indisputable fact that the appellant had no criminal antecedents and he hails from a poor socio3economic background and also his unblemished conduct inside the jail cannot go unnoticed. So also, it is a fact that at the time of commission of the offence the appellant was aged 25 years. Hence, viewing the issue taking into account the aforesaid aspects, we do not find any reason to rule out the possibility and the probability of the reformation and rehabilitation of the appellant.

discussion is that the present case cannot be considered as one falling in the category of `rarest of rare cases' in which there is no alternative but to impose death sentence.

57. In the aforesaid circumstances, the next question is what is the comeuppance for the conviction for offence of murder in this case. In the decision in Swamy Shraddananda v. State of Karnataka [(2008) 13 SCC 767], taking into account the tenets of penology and with a view to have a just, reasonable and proper course in a case where the Court is of the opinion that sentence for life is inadequate but imposition of death sentence is unwarranted this Court adopted the course of awarding life imprisonment without application of the provisions of premature release/remission before an actual imprisonment for a definite period of time. This position was iterated with agreement in the decision in Union of India v. Sriharan [(2016) 7 SCC 1], thus : "We hold that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well3founded and we answer the said question in the affirmative.

58. Thus, taking into account the fact that in the case on hand a hapless 8 year old girl child, who is none other than the daughter of appellant's cousin sister raped and murdered and that too, in an extremely brutal manner revealed from the evidence on record, we are of the considered view that course adopted in the decision in Swamy Shraddananda's case (supra) and reiterated in Sriharan's case (supra)has to be adopted in this case. In other words, even while commuting capital punishment, the appellant has to be awarded life imprisonment without application of the provisions of premature release/remission for

a substantial length of period. On such consideration we are of the view that it would be just and proper to award punishment of imprisonment for life to the appellant for the offence punishable under Section IPC, by providing for an actual imprisonment for a period of 30 (thirty) years without application of the provisions of premature release/remission.

59. In the circumstances, these appeals are partly allowed as hereunder:

(i) The conviction of the appellant for the offences punishable under Section 302 and 376(2)(i), IPC and conviction for the offence punishable under Section 6 of POCSO Act is upheld and the sentences awarded to him for the conviction therefor, are confirmed, for the offence under Section 302 IPC;

(ii) However, the death sentence awarded to the appellant for the offence under Section 300, IPC punishable under Section 302, IPC is commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of thirty (30) years; (iii) The other terms of sentences awarded to the appellant including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the appellant shall run concurrently."

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JAnswers to the questions referred in seriatim Question 52.1 Whether imprisonment for life in terms of Section 53 read with section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission? Ans. Imprisonment for life in terms of Section 53 read with section 45 of the Penal Code only means imprisonment for rest of life of the convict. The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court .

We hold that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well3founded and we answer the said question in the affirmative."

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