Omkar Pal vs State of U. P.

S. N. H. Zaidi, J.—This capital jail appeal has been preferred by Superintendent of District Jail, Jalaun at Orai on behalf of convict Omkar Pal against the judgment and order dated 27.8.2007 of Dr. Rajesh Singh, H.J.S., Additional Sessions Judge/Fast Track Court No. 2, Jalaun at Orai passed in Sessions Trial No. 138 of 2006, State v. Omkar Palconvicting the Appellant and sentencing him to death penalty u/s 302, Indian Penal Code, for short I.P.C., to life imprisonment and fine of Rs. 10,000 u/s 376(2)(f), I.P.C. and seven years imprisonment and fine of Rs. 5,000 u/s 201, I.P.C. In case of default of payment of fine, further imprisonment of one year u/s 376(2)(f), I.P.C. and six months u/s 201, I.P.C. has been awarded to the Appellant. For confirmation of the sentence of death, Reference No. 22 of 2007 has been received from the learned trial Judge u/s 366(2), Code of Criminal Procedure (for short Cr. P.C.).

The aforesaid criminal appeal and reference have been connected and are being disposed of together by the present judgment.

The prosecution case, as revealed from the evidence on record, in brief, is that on 18.3.2006 at about 4.30 p.m. Km. Preeti, the eleven years old daughter of complainant P.W. 1 Samrath Pal, had gone to pluck and eat ber at the side of the pond in the vicinity of her house in village Amkhera, within P.S. and district Jalaun, but when she did not return till late in the evening, then a search was made but she could not be traced. She was searched out again on the next day and some blood, four fruits of ber and a ribbon were found lying in the dilapidated house (khandhar) of Raghubir Pal. The girl was searched around that house and then, at about 2 p.m., her dead body was found hidden under the hay in the hay stock room of the bara (house use for tethering cattle and storing hay and agricultural implements etc.) of Kadhorey Pal. After the recovery of the dead body of the girl, P.W. 3 Mohar Singh, P.W. 4 Yadram and few others informed the complainant that on 18.3.2006, at about 5.30 p.m. when they were sitting at the Lidhori (a long earthen tub like construction made for feeding cattle) of Lalta Prasad then they had seen Omkar Pal coming out of the said bara and at that time he was smeared with blood and hay and was nervous and on inquiry he told that he had gone to eat ber at the pond and had slipped there and got injured. The complainant got the report of the incident, Ext. Ka-1 scribed by Udit Narain Upadhyay and gave it at P.S. Jalaun at 3.45 p.m. on 19.3.2006. In the report it was also alleged that Omkar had committed rape with the girl and in order to cause the evidence of the crime disappear, had murdered her and hid the dead body in the hay. On the basis of the report, P.W. 9 Constable Clerk Matadin, wrote down Chik F.I.R., Ext. Ka-18 and registered a case under Sections 376, 302 and 201, I.P.C. at G. D. No. 27, Ext. Ka-19 against the Appellant.

P.W. 8 Inspector Ram Tirath, the then S.H.O. of P.S. Jalaun, took the investigation of the case in his hands and reached at the place of occurrence and got prepared inquest report, Ext. Ka-2, under his direction by P.W. 12 Sub-Inspector S. K. Mehra and sent the dead body of the girl for post mortem examination with P.W. 7 Constable Umesh Sharma. The Investigating Officer, for short the I.O., prepared the site plan, Ext. Ka-15 of the place of occurrence and also took in his custody dried leafs and stem of Jwar (Karbi) stained with blood, Material Ext.-12, a piece of cloth (handkerchief) stained with blood, Mat. Ext. 13, a ribbon and four fruits of ber, Mat. Exts. 14 and 15 to 18 respectively, sample of plain earth from the place of occurrence Mat. Ext. 19 and sample of hay of pea Mat. Ext. 20 and prepared their custody memos Ext. Ka-3 to Ext. Ka-7 respectively.

P.W. 6 Dr. R. P. Singh conducted the post mortem examination of the body of Km. Preeti on 20.3.2006 at 4.05 p.m. and prepared the report Ext. Ka-9. He found the following ante-mortem injuries on her dead body:

A contusion, 2 cm. x 1 cm. over the right side of neck, 2. A contusion, 3 cm. x 1.5 cm., over the left side of neck at the level of cricoid cartilage. On dissection sub-cutaneous tissues and muscles were found congested. The left side cornua of Hyoid bone was found fractured, 3. An abrasion, 2 cm. x 1 cm., over the back of right elbow, 4. An abrasion, 1.5 cm. x 1 cm., on the front of left knee, 5. An abrasion,0.2 cm. x 0.1 cm., on the front of the left leg 10 cm. below the knee, 6. Multiple abrasions over back of chest left side. Largest abrasion 3 cm. x 2 cm., smallest 0.3 x 0.2 cm. in an area of 15 cm. x 12 cm., 7. Three lacerated wounds in vagina, one in lower part and two on lateral part, average size 1.5 cm. Slides of the vaginal smear were prepared for examination.

According to the doctor''s opinion, the girl was subjected to rape and had died due to asphyxia as a result of throttling. He had sealed her underwear Mat. Ext. 1, shirt Mat. Ext. 2 and plastic bangles Mat. Exts. 3 to 11.

On 20.3.2006, the Appellant was arrested by the I.O. and he got his underwear Mat. Ext.-21, vest Mat. Ext. 22, blood stained shirt Mat. Ext. 23 and blood stained pant Mat. Ext. 24, which were worn by him at the time of occurrence, recovered from his house. Recovery memo of the clothes, Ext. Ka-15 and the site plan of the place of recovery, Ext. Ka-16 were prepared by the I.O., who has also proved the recovery of the said clothes from the Appellant''s house at his instance.

The injuries of the Appellant were examined on the same day at Community Health Centre, Jalaun at 4.50 p.m. by P.W. 11 Dr. S. K. Saksena, who had prepared his report Ext. Ka-21. According to Dr. Saksena, there were two injuries of abrasion on his chest and above the right ankle joint and since there was marked swelling over his glans penis with marked redness over posterior part extending upto opening of glans penis, therefore, he kept the injury under observation and referred him for expert opinion to the District Hospital Orai. P.W. 10 Dr. Srikant Tiwari, the Surgeon of District Hospital, Orai had examined the Appellant on the same day and prepared the examination report Ext. Ka-20, according to which, the glans around the front portion of his penis was swollen and paining and under the glans, the lower portion of the penis was red.

The I.O. sent the case properties for examination to the Forensic Science Laboratory (F.S.L.) Agra, through docket Ext. Ka-20A and after concluding the investigation submitted the charge-sheet, Ext. Ka-17 under Sections 302, 376 and 201 of I.P.C. The report of the F.S.L. is Ext. Ka-21A. According to this report, human blood was found on the underwear and shirt of deceased Km. Preeti, earth taken from the place of occurrence and on the shirt and vest of Appellant-Omkar. Besides that, semen was also found on the underwears of the deceased as well as of the Appellant.

The Magistrate took the cognizance on the charge-sheet and committed the case to the Court of Sessions for trial. The trial court framed the charges of Sections 376, 302 and 201, I.P.C. against the Appellant, who pleaded not guilty to them and claimed the trial.

The prosecution has examined Samrath Pal, Man Singh, Mohar Singh, Yad Ram, Kamlesh Pal, Dr. R. P. Singh, Con. Umesh Sharma, Inspector Ram Tirath, Con. Matadin, Dr. Srikant Tiwari, Dr. S. K. Saksena and Sub-Inspector S. K. Mehra as P.W. 1 to P.W. 12 respectively and has produced documentary evidence Ext. Ka-1 to Ext. 21 and case properties Mat. Ext. 1 to Mat. Ext. 24 in support of its case.

P.W. 1 Samrath Pal is the complainant and father of the victim. He has fully supported the prosecution case and has proved written report Ext. Ka-1. P.W. 2 Man Singh is one of the panchas of the inquest report Ext. Ka-2 and a witness of custody memos Ext. Ka-3 to Ka-6 and has proved these documents. P.W. 3 Mohar Singh and P.W. 4 Yadram had seen the Appellant coming out of the bara of Kadhorey Pal, where from the dead body of the girl was subsequently found, stained with blood and in a nervous condition at 5.30 p.m., on the day when the girl had gone missing. They have corroborated the said circumstance. P.W. 4 Yadram is the other witness of the custody memos Ext. Ka- 3 to Ka-6 and has proved his signatures on them. P.W. 5 Kamlesh Pal is one of the witnesses of the recovery of the dead body of Km. Preeti from the bara of Kadhorey Pal, custody memo, Ext. Ka-7, of blood stained hay from the said place and also the recovery of the clothes of the Appellant from his house at the instance of the Appellant. He has also corroborated these circumstances and proved custody memo Ext. Ka-7 and recovery memo of clothes Ext. Ka-8. Rest of the witnesses are formal witnesses and have proved police papers Ext. Ka-9 to Ext. Ka-22 and Material Exts. 1 to 24.

The trial court also called upon Ram Roop Pal and examined him as C.W. 1. He is witness of lastly seeing the deceased with the Appellant. He has said that he had seen Km. Preeti and Omkar Pal eating ber under the tree of ber at the side of the pond and had not seen Preeti alive after that.

In his statement u/s 313, Cr. P.C. the Appellant has denied his involvement in the murder of Km. Preeti and the recovery of his blood and semen stained clothes from his house at his instance. He has also denied the factum of his examination by the doctors at the Community Health Centre at Jalaun as well as at the District Hospital, Orai and has said that he was not present in the village on 18 and 19.3.2006 and when he was coming back to the village then he was apprehended at Jalaun crossing by the police in the evening of 20.3.2006. The Appellant has examined Ram Baran Singh and Yatindra Kumar as D.W. 1 and 2 respectively in his defence.

D.W. 1 Ram Baran Singh is the Villege Development Officer. On the basis of the entries of Family Register pertaining to the years 2002-2003 and Death Register pertaining to the year 2006 of village Satrahju of Nayaya Panchayat Churkhi, he has said that, at page 112 of the Family Register, in House No. 79B, the names of the members of the family of Sheoram son of Sumer is entered wherein the name of the mother of Sheoram is not mentioned and no family is entered with the name of Sumer and in the Death Register there is no entry regarding the death of the mother of Sheoram Pal. He has proved the copy of the said page of the Family Register, Ext. Kha-1, and Death Register, Ext. Kha-2.

D.W. 2 Yatindra Kumar is the Junior Clerk in the office of Panchayat Raj Department. On the basis of original Family Register pertaining to the year 1961-71, he has said that at page 11, in column 15 thereof, there are entries of death of Smt. Rajjan wife of Sumer and the name of Sheoram as nati of Sumer is also recorded. He has proved the copy of the entries, Ext. Kha-3.

The learned trial Judge found all the charges framed against the Appellant as proved beyond doubt and sentenced him to death u/s 302, I.P.C. and passed sentences of imprisonment and fine under Sections 376 and 201, I.P.C., as mentioned above. He has then submitted the sentence of death for confirmation to this Court u/s 366 of the Cr. P.C.

We have heard the learned Counsel for the Appellant and the learned A.G.A. for the State and perused the record of the case.

There is no direct evidence in this case and the prosecution case is based on circumstantial evidence. The Supreme Court has consistently laid down that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Hukam Singh Vs. State of Rajasthan, State of U.P. Vs. Sukhbasi and Others, and Ashok Kumar Chatterjee Vs. State of M.P.,

The principles for appreciation of evidence in a case of circumstantial evidence have been aptly enunciated in Padala Veera Reddy Vs. State of Andhra Pradesh and others, which we respectfully adopt. The principles laid down are as follows:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape for the conclusion that within all human probability the crime was committed by the accused and none else, and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Learned Counsel for the Appellant has also referred to some cases, namely, State of U. P. v. Ashok Kumar Srivastava 1992 CriLJ 1104 ; Sharad Birdhichand Sarda Vs. State of Maharashtra, and Shivaji Saheb Rao Bobade v. State of Maharashtra 1995 (Suppl) ACC 598 . All these cases reiterate the aforesaid principle laid down in Padala Verabira Reddy''s case (supra) that in a case of circumstantial evidence, the circumstances against the accused must be firmly established, the circumstances must irrefutably points towards the guilt of the accused, the chain of circumstances should in all human probability suggest that the accused alone had committed the crime and the circumstances should only be consistent with the guilt of the accused and inconsistent with his innocence. Hence, there is no need to burden this judgment with passages from the cases cited by the Appellant''s counsel.

In order to prove its case the prosecution has relied upon following circumstances:

On 18.3.2006 at about 4.30 p.m. Preeti had gone to pluck and eat ber at the pond near her home.

The Appellant and Preeti were seen eating ber under the ber tree at the side of the pond and thereafter she was not seen alive by anybody.

The Appellant was seen coming out of the bara of Kadhorey Pal in a nervous condition and was smeared with blood and hay at about 5-5.30 p.m. on 18.3.2006 and the dead body of Preeti was found hidden under the pile of hay in the room of the said bara at about 2 p.m. on 19.3.2006.

Ribbon of Preeti, four fruits of ber and blood stained dry leafs and stem of jwar (Karbi) were recovered from the khandhar of Raghubir Pal which was adjacent to the bara of Kadhorey Pal.

Preeti was subjected to rape before her death.

The Appellant got recovered his blood stained clothes from his house.

Human blood, semen and sperms were found on the underwears of the deceased and Appellant as well as human blood was found on the shirt of the deceased and vest and shirt of the Appellant.

The penis of the Appellant was found swollen and red in his medical examination.

When we analyse the evidence on record in the background of the principles of law highlighted above, the inevitable conclusion we have come to is that the learned trial court has rightly held the above circumstances as proved.

So far as the first circumstance that Km. Preeti had gone to pluck and eat ber at the pond near her home is concerned, her father P.W. 1 has stated that Preeti, who was aged about eleven years, had gone to eat ber beside the pond at about 4.30 p.m. He has also said that he was present in the house when Preeti had gone. The witness has not been disputed by the defence in respect of this circumstance. It is thus sufficiently proved that Preeti had gone to the pond on 18.3.2006 at about 4.30 p.m.

The second circumstance, as stated above, is that Preeti and Appellant Omkar Pal were seen at the pond eating ber under a ber tree and thereafter the girl was not seen alive. C.W. 1 has corroborated this circumstance in his statement on oath and has also said that on the very next day he had gone to village Satrahju to attend the 13th day death ceremony of the mother of his father-in-law and when he retuned to the village on its next day then he came to know about the death of Preeti and then he informed about that to Samrath. This witness has successfully stood the test of cross-examination and nothing could come in it which could make him unreliable. According to the learned Counsel for the Appellant, this witness has been introduced only to bring on record a false circumstance of last seeing the deceased in the company of the Appellant and he has concocted a story to explain the delay as to why he could not immediately inform Samrath when the news of the death of her daughter had spread in the village after the recovery of her dead body. The defence has examined two witnesses only to discredit this witness by making an attempt to show that the mother of the father-in-law of this witness had not died at that time and had died years before, therefore, there was no occasion for this witness to go to village Satrahju to participate in any death ceremony and that he is deposing falsehood. It has been pointed out by the counsel for the Appellant that C.W. 1 has admitted in his cross-examination that he name of his father-in-law was Sheoram Pal who had two sons namely, Bal Kishun and Akhilesh but D.W. 1 has said that in the Family Register pertaining to the year 2002-2003 the names of the family members of Sheoram son of Sumer were entered at page 112 but the name of his mother was not recorded. He has further said that no family of Sumer was also recorded in that register and in the Death Register pertaining to the year 2006 of village Satrahju, the death of the mother of Sheoram Pal was also not recorded and D.W. 2 has stated that at page 11 of the Family Register pertaining to the years 1961 to 1971, there is an entry of death of Smt. Rajjan wife of Sumera and the name of Sheoram is also entered as the grandson of Sumera. In our opinion the evidence of these defence witnesses has rightly been rejected by the trial court because their testimony is based on certain registers but those registers are unworthy of credit and no reliance can be placed upon them as its entries were neither made by them nor were made in their presence and they could also not tell as to who were the authors of those entries. They have also admitted that some of the columns of these registers are blank and there is no endorsement of any officer regarding the authentication the Death Register and the Family Register was not in the shape of register and it was in the form of stitched pages and it did not have any certification about its total number of pages and it had not been authenticated by any officer. The trial court has correctly held that from the testimony of the defence witnesses it is not proved that C.W. 1 Ramroop Pal had not visited village Satrahju on 18.3.2006 in the death ceremony. C.W. 1 has no enmity with the Appellant or any member of his family and has no reason to depose falsehood against him. It is, therefore, fully proved beyond any doubt that the deceased was last seen in the company of Appellant Omkar Pal at the pond eating ber.

The third circumstance, as alleged by the prosecution, is that on 18.3.2006 at about 5.30 p.m. the Appellant was seen coming out of the bara of Kadhorey Pal in a nervous condition and there were stains of blood on his clothes and he was smeared with hay. The learned trial court has found this circumstance as proved on the basis of the evidence of P.W. 3 and 4, who have fully corroborated this circumstance in their statements. According to P.W. 3 and 4, they were sitting at the Lidhauri of Lalta Prasad alongwith few others at about 5.30 p.m. when they saw Appellant Omkar Pal coming out of the said bara and as his clothes were smeared with hay and blood and he was looking nervous so he was inquired about his condition to which he said that he had gone to eat ber behind the said bara where he slipped and got his elbow injured. They have also said that next day when they came to know that the daughter of Samrath had gone missing then they had searched her and found her dead body hidden under the heap of hay in the said bara at about 2 p.m.P. Ws. 1 and 2 have also corroborated the recovery of the dead body of the girl from the said bara. The testimonies of these P. Ws. have successfully stood the test of credibility at the anvil of cross-examination and inspire confidence. None of the witnesses has any enmity with the Appellant from before the occurrence. The complainant, the Appellant and all these witnesses appear to belong to the same community and residents of the same village and there seems no reason for them to depose falsehood against the Appellant. The facts that the Appellant was seen coming out of the said bara in a nervous condition and his clothes were smeared with blood and hay and the next day the dead body of the girl was recovered from the said bara are also mentioned in the F.I.R. lodged with the police on 19.3.2006 at 3.45 p.m., i.e., about two hours after the recovery of the dead body of the girl. The testimony of the witnesses in respect of this circumstance is, therefore, corroborated by the F.I.R. also and proves it beyond doubt.

In respect of the fourth circumstance, as indicated above, P. Ws. 1, 2, 4 and the I.O. have proved the recovery of a ribbon Mat. Ext. 14, fruits of ber Mat. Exts. 15 to 18 and blood stained dry leafs and wood (stem) of Jwar (Karbi) Mat. Ext. 12 from the khandhar of Raghubir Pal. According to P. Ws. 1, 2 and 4, when they were making search for Preeti and came to that khandhar then they had seen those articles lying. P.W.1 has also said that some mohalla people had also informed him about the presence of some blood and a ribbon in the said khandhar. P.W. 8 had taken those articles in his custody from that place after preparing the custody memos Ext. Ka-3 and Ka-5, which fully corroborate the testimony of P. Ws. 2 and 4, who are also the witnesses of those memos. These witnesses have rightly been believed by the trial court as they have successfully stood the test of cross-examination. There is sufficient evidence on record to prove that the recovered black ribbon Mat. Ext. 14 belonged to Preeti. The site plan Ext. Ka-15, which has not been disputed by the defence, shows that the bara of Kadhorey, from where the dead body of the girl was recovered, lies in the east adjacent to the said khandhar. We are, therefore, satisfied that the factum of the recovery of the black ribbon (hair band) of the deceased, four fruits of ber and blood stained dried leafs and wood of Jwar from the said khandhar is fully proved.

The fifth circumstance, as stated by the prosecution, is that before Preeti was killed, she was also subjected to sexual assault. P.W. 6 Dr. Singh has opined that Preeti had died due to asphyxia as a result of throttling and she was raped prior to her death. He has also said that she could have died at about 4-5 p.m. on 18.3.2006. The statement of P.W. 6, which supports the prosecution case, is fully corroborated by the post mortem report Ext. Ka-9 which also shows that there were several ante mortem injuries on her person as well as in her vagina, as detailed on page 2 above. The observation of the trial court that the said injuries would have come on account of resistance offered by the victim at the time of commission of rape and throttling is plausible. There appears no substance in the defence suggestion that the ante mortem injuries Nos. 1 to 6 of the girl could have been caused by the dragging of the body by any animal, as the dead body of the girl was found hidden under the pile of hay in a room showing the involvement of human hands. The presence of human blood on the dried leafs and wood found lying in the khandhar of Raghubir besides the ribbon (hair band) of the girl and fruits of ber clearly indicates that the girl was raped and killed at that place and since the bara of Kandhorey was adjacent to it, therefore, the dead body was conveniently taken to it and hidden under the pile of hay. The learned trial court has rightly held this circumstance as proved.

Another circumstance incriminating the accused as alleged by the prosecution is that after his arrest on 20.3.2006, he got his blood stained clothes Mat. Ext. 21 to 24, which were worn by him on the date of occurrence, recovered from his house. P.W. 5 and the I.O. P.W. 8 have stated about the alleged recovery and have proved the recovery memo Ext. Ka-15. The site plan Ext. Ka-16 of the place of recovery of the clothes corroborates their statements which inspire confidence and appear reliable. Although the Appellant has denied the alleged recovery, yet we do not find the alleged recovery doubtful as there appears no reason for P.W. 5 to depose falsehood against the Appellant and his testimony is fully corroborated by the statement of P.W. 8 and recovery memo Ext. Ka-15. We are thus, satisfied that the prosecution has successfully proved this circumstance also.

The seventh circumstance alleged by the prosecution is that human blood, semen and sperms were found on the underwears Mat. Ext. 1 and 21 of the deceased and Appellant respectively and human blood was found on the shirt Mat. Ext. 2 of the deceased and vest and shirt Mat. Ext. 22 and 23 respectively of the Appellant. This circumstance is fully corroborated by the report, Ext. Ka-21, of the Forensic Science Laboratory, Agra. P.W. 6 Dr. Singh has stated that he had taken the underwear Mat. Ext. 1 and shirt Mat. Ext. 2 off the body of the deceased at the time of the post mortem. The circumstance of the recovery of the clothes, Mat. Exts. 21 to 23, which were worn by the Appellant on the date of occurrence, at his instance has already been proved. It has also been proved that these clothes were stained with blood as P.W. 3 and P.W. 4 have stated about the presence of blood stains upon the clothes of the Appellant when he was seen coming out of the bara of Kadhorey Pal on the date of occurrence. This circumstance proves beyond doubt that as the girl was raped and subsequently killed by the Appellant, therefore, the clothes of the deceased and the Appellant were smeared with semen, sperms and blood.

The last incriminating circumstance pointed out by the prosecution is that the penis of the Appellant was found swollen and red in his medical examination. The I.O. P.W. 8 has stated that since after the arrears of the Appellant on 20.3.2006 he told that his penis was having burning sensation and irritation, therefore, he was sent to Community Health Centre, for short C.H.C., Jalaun for examination on that very day. P.W. 11 Dr. Saksena who had examine the Appellant at the C.H.C. has said that there was marked swelling over his glans penis and marked redness over posterior part extending upto the opening of glans penis which was about two days old and could have come at about 4.30 p.m. on 18.3.2006. P.W. 11 had sent the Appellant for expert opinion of the surgeon at the District Hospital where he was examined by P.W. 10 Dr. Tiwari who has fully corroborated the opinion of Dr. Saksena. According to P.W. 11, the swelling and redness, as were found in the penis of Omkar could have occasioned due to its forcible penetration in the vagina of a little girl. He has also said that there were two injuries on the person of Omkar in the nature of abrasions, firstly, 1.5 cm. x 0.5 cm. x skin deep over right side of chest near the clavicle, and secondly, 4 cm. x 0.5 cm. x skin deep in the right thigh 10 cm. above the knee and these injuries could have come in the resistance offered by a girl who is subjected to forcible sexual intercourse. The examination reports Exts. Ka-20 and 21 support the testimonies of P. Ws. 10 and 11. This circumstance, therefore, also stood proved beyond any doubt and shows that due to forcible sexual intercourse with the victim, the penis of the Appellant had become red and swollen.

All the above circumstances, as indicated by the prosecution are firmly and cogently proved beyond any doubt. In our view these circumstances are conclusive in nature and when taken cumulatively they form a complete chain with no gap in it and clearly point towards the guilt of the Appellant. It makes out from these circumstances that when on 18.3.2006 at about 4.30 p.m. Preeti had gone to the pond near her house to pluck and eat ber, Appellant Omkar met her there and both of them ate ber and they were seen by C.W. 1 and thereafter Appellant brought her to the khandhar of Raghubir Pal where he raped her and when she offered resistance then he killed her by throttling and in the commission of rape and murder the deceased received injuries on her person as well as on her private part and her vagina get lacerated and the blood fell on the floor smearing the dried leafs and wood (stem) of jwar which were lying there and the underwears of the deceased and the Appellant also get stained with blood and semen and the four ber carried by them and the ribbon (hair band) of the girl fell there and in order to cause the evidence of the crime disappear he brought the dead body of the victim to the adjacent bara of Kadhorey Pal and hid it under the pile of hay in a room of that bara and in that process the clothes he was putting on get stained with blood and he himself get smeared with hay and at about 5.30 p.m. when he came out of the said bara in a nervous condition he was seen by P. Ws. 3 and 4 and others who were sitting at the Lidhori of Lalta Pal and after his arrest by the police he get his blood stained clothes recovered from his house and due to forcible commission of rape, his penis became read and swollen. In our view the motive for the crime was to satisfy the sexual urge which might have arisen seeing the victim alone at the secluded pond. We are also of the opinion that the circumstantial evidence established against the Appellant is incapable of explanation of any other hypothesis than his guilt.

From what we have stated above, we hold that all the incriminating circumstances against the Appellant as pointed out by the prosecution, are fully established and these circumstances and the evidence on record make a complete chain leaving no ground to suggest the innocence of the Appellant. We are also of the view that these circumstances are conclusive in nature and exclude every possible hypothesis to the innocence of the Appellant. We, therefore, hold that the Appellant had committed the rape and murder of Km. Preeti and hid her dead body under the hay to cause the evidence of murder and rape to disappear in order to screen himself from legal punishment. The trial court has, therefore, rightly held him guilty of the charges of Sections 376, 302 and 201 of the Indian Penal Code. In this view of the matter we confirm the conviction of Appellant Omkar Pal under the aforesaid sections.

So far as the sentence part of the impugned judgment is concerned, the Appellant has been awarded death sentence u/s 302 of the I.P.C. Learned Counsel for the Appellant has submitted that it is not the rarest of the rare case to warrant the extreme penalty of death to the Appellant.

The Supreme Court in the cases of Bachan Singh Vs. State of Punjab, and Machhi Singh and Others Vs. State of Punjab, has indicated the guidelines for determining whether the case belongs to the rarest of the rare category for awarding death sentence. The Constitution Bench in Bachan Singh''s case (supra) has said:

.... It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with ever more scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law''s instrumentality. That ought not to be done save in the rarest of the rare case when the alternative option is foreclosed.

The principle of ''rarest of rare case'' laid down in the aforesaid case came up for elaborate consideration before the Apex Court in the case of Machhi Singh (supra). It was a case of extraordinary brutality. On account of a family feud Machhi Singh, alongwith his eleven accomplices, in the course of a single night, conducted raids on a number of villages killing seventeen people, including men, women and children for no reason other than they were related to one Amar Singh and his sister Piyaro Bai. The death sentence awarded to Macchi Singh and two other accused by the trial court and affirmed by the High Court was also confirmed by the Supreme Court. In this case the Supreme Court put itself in the position of the ''Community'' and observed that though the ''Community'' revered and protected life because ''the very humanistic edifice is constructed on the foundation of the reverence for life principle'' it may yet withdraw the protection and demand death penalty. The Court held that "It may do so ''in rarest of rare case'' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder.-When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance. (i) when the house of the victim is set aflame with the end in view to roast him alive in the house ;

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death ;

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder.-When the murder is committed for a motive which evinces total depravity and meanness. For instance when: (i) ahired assassin commits murder for the sake of money or reward, (ii) acold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of a murderer or vis-�-vis whom the murderer is in a dominating position or in a position of trust, or (iii) amurder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime: (i) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reason but in circumstances which arouse social wrath. For instance, when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, land or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(ii) In cases of bride burning and what are known as dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime.-When the crime is enormous in proportion. For instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed.

V. Personality of victim of murder.-When the victim of the murder is, (i) an innocent child who could not have or has not provided even an excuse much less a provocation for murder, (ii) a helpless woman or a person rendered helpless by old age or infirmity, (iii) when the victim is a person vis-�-vis whom the murderer is in a position of domination or trust when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

In Machhi Singh''s case (supra) the Court also held that for practical application the rarest of rare case principle must be read and understood in the background of the five categories of murder cases enumerated above. The Supreme Court, though relying upon the observations in Bachan Singh yet, observed in Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka, that "we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself."

The Apex Court in Shraddananda (supra), looked at the matter from another angle. It has observed that "In Bachan Singh it was held that the expression "special reasons" in the context of the provision of Section 354(3) obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. It was further said that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. In conclusion it was said that the death penalty ought not to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Now, all these expressions "special reasons", "exceptional reasons", "founded on the exceptional grave circumstances", "extreme cases" and "the rarest of the rare cases" unquestionably indicate a relative category based on comparison with other cases of murder. Machhi Singh for the purpose of practical application sought to translate this relative category into absolute terms by framing the five categories. (In doing so, it is held by some, Machhi Singh considerably enlarged the scope for imposing death penalty that was greatly restricted by Bachan Singh)."

It can, therefore, be noted from above that Bachan Singh laid down the principle of the rarest of rare cases and Machhi Singh, for practical application, crystallized the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope of imposing death penalty. The Supreme Court in Shraddananda''s case (supra) has further held that, "But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently. In Aloke Nath Dutta v. State of West Bengal 2006 (Supp) 10 SCR 662: 2007 (1) ACR 632, Sinha, J. gave some very good illustrations from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict. He finally observed that ''Courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar'' and further ''it is evident that different Benches had taken different view in the matter''."

In the case of Prakash Dhawal Khairnar (Patil) Vs. State of Maharashtra, the Apex Court had reduced the sentence of death following the law enunciated in the case of Rajendra Prasad Vs. State of Uttar Pradesh, that counting the casualties is not the main criteria for sentencing to death nor recklessness in the act of murder. The Court taking the cue from the English legislation on abolition of death sentence by suggesting that life imprisonment which strictly means imprisonment for the whole of the man''s life, but in practice amounts to incarceration for a period between 10 and 14 years, may at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last, as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being let at large. According to the Court this may take care of the judicial apprehension that unless physically liquidated the culprit had some remote time to repeat murder. In that case also the accused-Appellant had gunned down his own brother, 4 members of his brother''s family and his mother.

In the case of Ram Anup Singh and Ors. v. State of Bihar, 2002 (45) ACC 1136: 2003 (1) ACR 303 (SC), four innocent lives were lost in the incident. The Apex Court observed that there is no evidence on record to suggest that Appellants are the menace to society as is evident by their past deeds. It is not possible to conclude that they cannot be reformed or rehabilitated and they constitute a continuing threat to the society. The Court, therefore, did not find it safe to confirm the sentence of death awarded by the High Court to some of the Appellants, instead sentenced them to suffer rigorous imprisonment for life with the condition that they shall not be released before completing the actual term of 20 years including the period already undergone by them.

The Supreme Court, in the case of Amrit Singh Vs. State of Punjab, where a minor girl of 7-8 years was raped and murdered, did not find it as one of the rarest of the rare case and converted the sentence of death awarded to the Appellant by the trial court and confirmed by the High Court to rigorous imprisonment for life.

Coming to the facts of the present case, it is undoubtedly proved that the Appellant had committed the rape and murder of the girl. The circumstances of the case, however, reveal that the manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of the Appellant, seeing a lonely girl at a secluded place. He had no premeditation for commission of the offence. The offence may look heinous and brutal but under no circumstance it can be said to be a rarest of rare cases. Under the circumstances of the case it cannot be said that death sentence is the only option and the alternative of awarding the life imprisonment is foreclosed. It is also difficult to say that the Appellant is a menace to the society or that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. There is nothing on record which could suggest that the Appellant was having any criminal antecedent prior to this incident or he is a hardened criminal. He is unmarried and aged about 22 years on the date of occurrence, per his statement u/s 313, Cr. P.C. We, therefore, feel hesitant in endorsing the death penalty awarded to him by the trial court.

But this leads to a more important question about the punishment commensurate to the Appellant''s crime. The sentence of imprisonment for a term of 14 years that goes under the euphemism of imprisonment for life is equally, if not more, unacceptable to us. The Supreme Court in the cases of Subash Chander Vs. Krishan Lal and Others etc. etc., Shri Bhagwan Vs. State of Rajasthan, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra (supra);Ram Anup Singh and Ors. v. State of Bihar(supra) ; Nazir Khan and Others Vs. State of Delhi, and Amrit Singh v. State of Punjab(supra) has substituted death penalty by life imprisonment or in some cases imprisonment for a term of 20 years with a direction that the convict would not be released for the rest of his life or until the 20 years term is actually served out, mainly on two premises, one, an imprisonment for life in terms of Section 53 read with Section 45 of the I.P.C. meant imprisonment for the rest of life of the prisoner and, two, a convict undergoing life imprisonment has no right to claim remission.

In the light of the discussion made above, we are clearly of the view that, in the case before us, there is a good and strong basis to substitute the death sentence to life imprisonment with the direction that the Appellant shall not be released until the 20 years term is actually served out and only thereafter the State may consider his case for premature release or commutation etc. under its norms for remission and commutation of sentence.

In this view of the matter, we decide the appeal and reference as under:

(i) Capital Jail Appeal No. 6253 of 2007 preferred by Appellant-Omkar Pal is dismissed subject to the modification that the sentence of death awarded to the said Appellant u/s 302, I.P.C. is substituted with rigorous imprisonment for life. However, we make it clear that the sentence of life imprisonment u/s 302, I.P.C. shall run for a minimum actual period of rigorous imprisonment for 20 years and only thereafter the State may consider his case for remission under its norms for commutation and remission of sentence.

(ii) Criminal Reference No. 22 of 2007 u/s 366(2), Cr. P.C. for confirmation of death sentence awarded to Appellant-Omkar Pal is rejected.