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CASE NO.: Appeal (crl.) 68-69 1999

PETITIONER: MOHD.CHAMAN

       Vs.

RESPONDENT: STATE (N.C.T.OF DELHI)

DATE OF JUDGMENT:       11/12/2000

BENCH: D.P.Mohapatro, K.T.Thomas

JUDGMENT:

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     D.P.  Mohapatra, J.

     Mohd.Chaman,  the  accused in Sessions Case No.134  of 1996  (State Vs.  Mohd.  Chaman) has filed these appeals  by special  leave  challenging the judgment passed by the  High Court  of  Delhi  in  Murder Ref.No.5/97  and  Crl.   Appeal No.305/97 confirming sentence of death passed against him by the Additional Sessions Judge, Shahdara, Delhi.  This court, by  the  order dated 22.1.99 granted leave confined  to  the question of sentence and further directed execution of death sentence  be stayed during pendency of the appeal.  Thus the matter  to  be  considered in the case relates  to  sentence only.   The  question for determination is whether,  on  the facts  and in the circumstances appearing from the materials on  record the trial Court and the High Court were right  in imposing  death sentence against the appellant.  The  answer to this question depends on the finding whether the case can be  classified as a rarest of rare cases for imposition of the  maximum  penalty  of  death.  The  facts  of  the  case relevant for the determination of the question may be stated thus:   The  appellant Mohd.Chaman was aged thirty years  at the  time of the incident and the victim girl  Kumari  Ritu (deceased)  was  aged one and half years then.   Bindu  Shah (PW-4),  father  of  the  deceased   along  with  his   wife Smt.Lalita  (PW-2)  and two daughters Soni and Ritu used  to reside  in  House  No.5416/6, Gali No.4, Shakti  Gali,  Amar Mohalla,  Raghupura, Gandhi Nagar.  Bindu Shah was running a tailoring  factory  near  his   house.   The  appellant  was residing in the same house in a room adjacent to the room of Bindu  Shah.  On 10-4-95 at about 7.30 p.m.  when Bindu Shah was in his factory, Smt.Lalita left her two daughters in the care  of  a  neighbour and went out for marketing.   On  her return  Smt.Lalita did not find Ritu in the house.  She made a  search in the locality nearby and sent her elder daughter to  call  her brother Vidya Nand Sagar (PW-7).   Vidya  Nand Sagar  accompanied by Shankar (PW- 15) reached the house  of Smt.Lalita  and  made some search for Ritu but did not  find her.   However,  Smt.Lalita found the room of the  appellant half open and on peeping into it saw Ritu lying on the floor

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and   the  appellant  present  in   the  room.   On   seeing Smt.Lalita,  the appellant picked up Ritu from the floor  in her unconscious state and handed her over to Smt.Lalita.  At that   time  the  mother  found   that  Ritu   was   without undergarment (kaccha) and was wearing a frock.  She observed several  bleeding  teeth bite marks on the cheek  and  other parts of the body of Ritu.  On her query about the condition of Ritu the appellant told her to go away silently otherwise she  would  also meet the same fate and the Police could  do nothing  against  him.  Thereafter Smt.Lalita rushed to  the factory  of her husband.  The parents took Ritu to a  doctor who  advised  them  to take her immediately to  a  hospital. Then Ritu was taken to Surya Hospital where she was declared brought  dead by the doctor.  In the meantime some  people who  had  collected  at the place of  occurrence,  kept  the appellant  under close guard till sub-inspector Magan  Singh (PW-16)  of Gandhi Nagar Police Station reached the spot and took  control  of  the   situation.   Soon  thereafter  SHO, N.S.Khan  (PW-20)  arrived  at the scene  of  occurrence  on receiving  information  about  the   incident.   The  police officers  were  told  by the persons at the  spot  that  the appellant  had raped and killed Ritu.  SHO N.S.Khan took the investigation.   He noticed that there were teeth bite marks on the breast, neck, abdomen and thighs of the deceased.  He also  observed  that  private  parts of  the  deceased  were swollen.  He recorded the statement of Smt.Lalita, mother of the  deceased  and that statement was treated as the FIR  of the  case.   Ex-PW 3/A, post-mortem report was  prepared  by Dr.K.Goel  (PW-3),  who  found the  following  external  and internal  injuries  on  the body of  Ritu:-  External:   1. Teeth  bite  marks  in the form of two  linear,  semi-linear marks with intermittently placed abrasions.  These marks are 3.5  cm.   long, placed 2.5 cm.  apart with thejr  concavity facing each other over Rt.  Cheek near Rt.  angle of mouth.

     2.   Abrasion 1.7 x 0.6 cms.  Over chin.  3.  One oval bruise  having width of about 6 mm.  With central pale  area with  dimensions  4.5 x 4 cm.  & an another same  bruise  of same  width  overlapping lower point of previous one  having dimensions  about 5 x 4 cm.  Both are present over Rt.  Side of abdomen at upper part.

     4.  Oval bruise about 6.5 mm.  Diameter c central pale area  c dimensions 5.5 cm.  x 4.5 cm.  c two small  abrasion marks  at periphery each about 3 mm.  Size at 4 & 5 O clock position.

     5.   Small abrasions with bruising in the vaginal wall at  4,  5 and 6 Oclock positions.  Hymen is partially  torn admitting  two  fingers, small tear present  over  posterior fornix.  Small blood clots present over injured parts in the vagina.

     Internal:   Head    Scalp   tissues,  bones   intact, meninges and brain matter  intact and NAD and pale.

     Neck   All structures are intact.  No extra  vasation of blood.

     Chest   Rib cage  intact.  Heart and Lungs   intact and NAD.

     Abdomen    Rt.lobe of liver is badly  lacerated  with vertical  deep laceration.  Large amount of blood and  clots

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present in peritonial cavity and around liver.

     Spleen and kidneys  intact and pale.

     Stomach  contains  small amount of semi-digested  food having no abnormal small and NAD.

     Bowels  Intact.  Bladder and Rectum empty.

     Pelvis  Intact.  Uterus  empty and NAD.

     Blood  sample,  vaginal swab, rectal swab,  swam  from surrounding area of genitalia and swab from injury sides are preserved sealed and handed over to the police.

     OPINION:-  All  injuries were ante-mortem  in  nature. Injury  no.1 is love bite marks.  Injury no.3 and 4 (pattern bruises)  are probably as a result of impact of some  object of  the  shape  described  in  the  injuries.   Injuries  to genitalia  are caused during sexual assault.  Injury to  the liver  is  caused  by  application of  blunt  forch  and  is sufficient to cause death in ordinary course of nature.

     Cause  of  death is haemorrhagic shock  consequent  to liver injury.

     Time since death is about 19 hours.

     On  completion  of the investigation the  charge-sheet was  submitted against the appellant of having committed the offences  of  murder  and  rape  punishable  under  Sections 302/376  of  the  Indian Penal Code.  The case  against  the appellant  was  based on circumstantial evidence only.   The circumstances  which  have  emerged from  testimony  of  the relevant witnesses, like, PWs 2, 3, 4, 7, 10, 15, 19 and PW- 20  are  the  following:   1.  On 10.4.1996  at  7.30  p.m. Smt.Lalita,  PW-2  left her two daughters, namely, Soni  and Ritu in the care of a neighbour and went out for marketing.

     2.  PW 10 and PW 15 saw the accused taking Ritu to his room.

     3.   When  at 7.45 p.m.  on that very date  Smt.Lalita returned, she found Ritu missing.

     4.   Smt.Lalita sent her elder daughter Soni to  fetch her brother Vidya Nand Sagar, PW7.

     5.  A search for Ritu was made by Smt.Lalita and Vidya Nand Sagar in the vicinity.

     6.  Smt.Lalita peeped into the room of the accused and found Ritu lying on the floor and the accused present there.

     7.   On  query made by Smt.Lalita, the accused  handed over  the  body  of Ritu to her and when she  made  injuries about  the condition of the girl, the accused told her to go away  otherwise  she would also meet the same fate and  that Police could not do anything against him.

     8.   Smt.Lalita  took Ritu to her husband Bindu  Shah, who was working in his tailoring factory.

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     9.   Vidya Nand Sagar, PW 7 remained standing near the door of the room of the accused, who remained in his room.

     10.   Several  persons  collected  at  the  place   of occurrence and held the accused.

     11.   Bindu Shah, took Ritu to a neighbouring  Doctor, who told him to take her to a hospital.

     12.   Bindu Shah took Ritu to Surya Hospital where she was declared brought dead at 8.15 p.m.

     13.   Bindu  Shah along with his wife returned to  the place of occurrence with the dead body of Ritu.

     14.   PW  16  SI Magan Singh arrived at the  place  of occurrence  and  found  the accused in the custody  of  some persons  outside the room and that the persons were shouting that  the accused had raped Ritu inside his own room and had killed her.  He controlled the scene and took the accused in his custody.

     15.   PW  20, N.S.Khan, SHO of the police station  and the  IO  of this case, on receiving information  about  this case,  reached the place of occurrence at 9.35 p.m.  on that very  day and found a large crowd having gathered there  and shouting  that the accused present there had committed  rape and murder of Ritu.  He took the accused in custody and sent him to the police station with police escort for safety.

     16.   PW 13, Dr.K.Goel, who performed the  post-mortem examination opined that the incident took place on 10.4.1995 around 7.45 p.m.

     The  learned  trial  Judge  on  appreciation  of   the evidence  in the case in the light of settled principles for judging  a case based on circumstantial evidence, held  that the  prosecution has succeeded in establishing the guilt  of the accused and accordingly convicted him under Sections 302 and  376  IPC.  Regarding the sentence the court  considered the  relevant aspects of the case like the appellant being a neighbour  of  the family of the deceased;  that during  the temporary absence of the mother of the child (deceased) from the house had taken over her (deceased) to his room where he committed  the  barbaric act of rape on the  innocent  child aged  one  and half years and in the process  of  committing rape inflicted injuries on her liver which resulted in death of  the  child.  The learned trial Judge while  sifting  the relevant materials on record referred to the principles laid down by this Court in the case of Bachan Singh vs.  State of Punjab  AIR 1980 SC 898, Machhi Singh & Ors.  Vs.  State  of Punjab  (1983  (3)  SCC 470), Kamta Tiwari v.  State  of  MP Vol.III  (1996)  CCR, SC page 141, Laxman Naik v.  State  of Orissa,  Vol.III  (1994)  SCC  page 381,  and  came  to  the conclusion  that it is fit case in which the extreme penalty of death should be awarded.  The High Court on assessing the evidence  on  record  held  that  the  trial  Court  rightly convicted the accused of rape and murder of Kumari Ritu.  On the  point of sentence the High Court observed, In the case

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before  us a baby girl aged about one and half years, like a growing  bud  of a flower, had been a prey to the lust of  a thirty years old man and had been killed in a most revolting manner  arousing  intense  and extreme  indignation  of  the community.   It is an act of extreme depravity and arouses a sense  of  revulsion in the mind of the common man.  Such  a person  is  menace  to the society.  The facts of  the  case persuade  us to hold that this is a rarest of the rare cases where  the sentence of death is eminently desirable.  The High   Court  confirmed  the   death  penalty  against   the appellant.

     The  question that arises for consideration is whether the accused in this case deserves the harshest punishment of death.   In  this connection we can do no better  than  take note  of the observations and the formulations made by  this Court in Bachan Singh (supra).  Therein a Constitution Bench of this Court after an exhaustive discussion of the relevant provisions  like  sections  299,300  and  302  of  the  IPC, sections  235(2) and 354(3) of the Criminal Procedure  Code, and  Articles 13,14,19(2) to (6) and 21 of the  Constitution held,  inter alia, that the founding fathers recognised  the right  of  the  State  to deprive a person of  his  life  or personal   liberty  in  accordance   with  fair,  just   and reasonable  procedure established by valid law;  that  there are  several  other indications, also, in  the  Constitution which   show  that  the   Constitution-  makers  were  fully cognizant  of the existence of death penalty for murder  and certain other offences in the Indian Penal Code.  This Court further  observed that the mention in the legislative list, right of Governor and President to suspend, commute or remit death  sentence  and  right of appeal to the  Supreme  Court under  Article 134 show that death penalty or its  execution cannot  be  regarded  as an unreasonable, cruel  or  unusual punishment.   Nor  can it be said to defile "the dignity  of the individual" within the preamble to the Constitution.  On parity  of  reasoning, it cannot be said that death  penalty violates   the  basic  structure   of   the   Constitution. Regarding  the  question of laying down standards and  norms restricting  the area of imposition of death penalty, if  by "laying down standards", it is meant that ’murder’ should be categorised  beforehand  according  to the  degrees  of  its culpability   and  all  the   aggravating   and   mitigating circumstances  should be exhaustively and rigidly enumerated so  as to exclude all free play of discretion, the  argument merits   rejection.   Such   standardisation  is   well-nigh impossible.   Firstly,  degree  of   culpability  cannot  be measured  in each case;  secondly, criminal cases cannot  be categorised,   there  being   infinite,  unpredictable   and unforseeable  variations;  thirdly, on such  categorization, the  sentencing  process  will cease to  be  judicial;   and fourthly, such standardisation or sentencing discretion is a policy-  matter  belonging  to the  legislature  beyond  the court’s function.

     In  paragraphs  176-177  of the  Judgment  this  Court quoted  with  approval  the following observations  of  Earl Loreburn L.C.  in Hyman V.  Rose (1912 AC 623) :

     "I  desire in the first instance to point out that the discretion  given  by  the section is very wide...   Now  it seems  to me that when the Act is so expressed to provide  a wide  discretion...   it  is not advisable to lay  down  any rigid  rules  for guiding that discretion.  I do  not  doubt that  the rules enunciated by the Master of the Rolls in the

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present  case  are  useful maxims in general,  and  that  in general  they  reflect the point of view from  which  Judges would  regard  an  application for relief.  But I  think  it ought to be distinctly understood that there may be cases in which  any  or all of them may be disregarded.  If  it  were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted.  It is  one  thing  to decide what is the true  meaning  of  the language  contained in an Act of Parliament.  It is quite  a different  thing to place conditions upon a free  discretion entrusted  by statute to the court where the conditions  are not  based upon statutory enactment at all.  It is not safe, I  think, to say that the court must and will always  insist upon  certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand.

     "Judges have to decide cases as they come before them, mindful  of the need to keep passions and prejudices out  of their  decisions.   And it will be strange if, by  employing judicial   artifices  and  techniques,  we  cut   down   the discretion  so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail  within  a strait-jacket.  While laying down cast  iron rules  in  a matter like granting anticipatory bail, as  the High  Court  has done, it is apt to be overlooked that  even Judges  can have but an imperfect awareness of the needs  of new  situations.   Life is never static and every  situation has  to  be assessed in the context of emerging concerns  as and  when it arises.  Therefore, even if we were to frame  a ’code  for the grant of anticipatory bail’, which really  is the  business  of  the legislature, it can at  best  furnish broad guidelines and cannot compel blind adherence."

     From  what has been extracted above, it is clear  that this  Court should not venture to formulate rigid  standards in  an area in which the Legislature so warily treads.  Only broad guidelines consistent with the policy indicated by the legislature in Section 354(3) can be laid down.  Taking note of  the decision of the Supreme Court of the USA in Gregg v. Georgia [ 428 US 153 = 49 L Ed 859] this Court observed :

     "Critically  examined, it is clear that the  decisions in Gregg v.  Georgia and its companion cases demonstrate the truth  of  what  we have said earlier, that  it  is  neither practicable  nor  desirable  to   imprison  the   sentencing discretion  of  a  judge  or jury in  the  strait-jacket  of exhaustive   and  rigid   standards.   Nevertheless,   these decisions  do  show  that it is not impossible to  lay  down broad guidelines as distinguished from iron-cased standards, which  will  minimise  the risk of arbitrary  imposition  of death  penalty for murder and some other offenses under  the Penal Code."

     Then  this Court proceeded to consider the question of indicating the broad guidelines which should guide the Court in  the  matter of sentencing a person convicted  of  murder under  section  302, Indian Penal Code.  Making  a  cautious approach, this Court observed :

     "Before  we embark on this task, it will be proper  to remind  ourselves, against that "while we have an obligation to   ensure   that  the   constitutional  bounds   are   not

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overreached,  we  may  not  act as judges  as  we  might  as legislatures."

     Reiterating  the principles laid down in Jagmohan  vs. State of U.P.  [(1973) 1 SCC 207)] this Court held that: the  application of those principles is now to be guided  by the paramount beacons of legislative policy discernible from Sections  354(3)  and  235(2),  namely :   (1)  The  extreme penalty  can  be inflicted only in gravest cases of  extreme culpability;   (2)In  making  choice  of  the  sentence,  in addition  to  the circumstances of the offence,  due  regard must be paid to the circumstances of the offender also.

     Noticing  some  of the aggravating circumstances  this Court observed that: pre-planned, calculated, cold-blooded murder  has  always  been regarded as one of  an  aggravated kind.   Some other aggravations were enumerated in para 202 of the Judgement.

     After enumerating the circumstances, this Court added:

     "Stated  broadly,  there  can be no objection  to  the acceptance  of  these  indicators but as we  have  indicated already,  we would prefer not to fetter judicial  discretion by  attempting to make an exhaustive enumeration one way  or the other."

     Similarly   some  of   the  mitigating   circumstances suggested  by  the  counsel  appearing   in  the  case  were enumerated in para 206 of the Judgement :

     "Mitigating  circumstances  :- In the exercise of  its discretion  in  the above cases, the court shall  take  into account  the following circumstances:- (1) That the  offence was  committed  under  the influence of  extreme  mental  or emotional  disturbance.  (2) The age of the accused.  If the accused is young or old, he shall not be sentenced to death. (3)  The  probability  that  the accused  would  not  commit criminal  acts of violence as would constitute a  continuing threat to society.  (4) The probability that the accused can be  reformed and rehabilitated.  The State shall by evidence prove  that the accused does not satisfy the conditions  (3) and  (4)  above.  (5)That in the facts and circumstances  of the  case the accused believed that he was morally justified in committing the offence.  (6) That the accused acted under the  duress  or domination of another person.  (7) That  the condition  of  the  accused  showed  that  he  was  mentally defective  and that the said defect impaired his capacity to appreciate the criminality of his conduct.

     This Court further observed that :

     "We  will  do  no  more than to  say  that  these  are undoubtedly  relevant circumstances and must be given  great weight  in  the  determination of sentence.  Some  of  these factors  like  extreme  youth can instead be  of  compelling importance.   In several States of India, there are in force special  enactments, according to which a ’child’, that  is, ’a  person who at the date of murder was less than 16  years of  age’, cannot be tried, convicted and sentenced to  death or  imprisonment  for  life  for   murder,  nor  dealt  with according  to the same criminal procedure as an adult.   The special  Acts  provide for a reformatory procedure for  such juvenile offenders or children."

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     The views of the majority of the judges were summed-up as follows:

     "There are numerous other circumstances justifying the passing   of   the   lighter   sentence;    as   there   are countervailing  circumstances  of aggravation.   "We  cannot obviously  feed into a judicial computer all such situations since  they  are astrological imponderables in an  imperfect and   undulating  society."  Nonetheless,   it   cannot   be over-emphasised  that  the scope and concept  of  mitigating factors  in the area of death penalty must receive a liberal and  expansive construction by the courts in accord with the sentencing  policy  writ  large in Section  354(3).   Judges should  never  be  bloodthirsty.  Hanging of  murderers  has never  been  too good for them.  Facts and  figures,  albeit incomplete,  furnished  by the Union of India, show that  in the  past,  courts have inflicted the extreme  penalty  with extreme  infrequency-a fact which attests to the caution and compassion  which  they have always brought to bear  on  the exercise  of  their  sentencing  discretion in  so  grave  a matter.   It is, therefore, imperative to voice the  concern that  courts,  aided by the broad  illustrative  guide-lines indicated  by  us, will discharge the onerous function  with evermore  scrupulous care and humane concern, directed along the  highroad  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  rare  cases  when   the  alternative  option  is unquestionably foreclosed."

     In  the  case  of Machhi Singh (Supra)  three  learned Judges  of this Court making an in-depth examination of  the principles  laid down in Bachan Singh case (supra)  observed that  between  the protagonists of the ’an eye for  an  eye’ philosophy  who demand ’death-for- death’;  the  ’Humanists’ on  the  other  hand who press for the other  extreme  viz., ’death-in-no-  case’;   a  synthesis has emerged  in  Bachan Singh   case  (supra)   wherein  the  ’rarest-of-rare-cases’ formula  for  imposing death sentence in a murder  case  has been  evolved  by this Court.  This Court then took note  of the  problems emerging for identification of the  guidelines spelt out in Bachan Singh case in order to determine whether or  not  death sentence should be imposed.   Discussing  the question of application of the rarest of rare case rule to the facts of individual cases in the context of the relevant guidelines  this Court observed (at p.487-88):  "The reasons why the community as a whole does not endorse the humanistic approach reflected in ’death sentence -in-no- case’ doctrine are  not  far  to  seek.   In  the  first  place,  the  very humanistic  edifice  is  constructed on  the  foundation  of ’reverence  for  life’  principle.   When a  member  of  the community  violates  this very principle by killing  another member,  the  society  may  not feel  itself  bound  by  the shackles  of this doctrine.  Secondly, it has to be realized that  every  member  of the community is able to  live  with safety  without his or her own life being endangered because of the protective arm of the community and on account of the rule  of law enforced by it.  The very existence of the rule

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of  law and the fear of being brought to book operates as  a deterrent of those who have no scruples in killing others if it  suits their ends.  Every member of the community owes  a debt to the community for this protection.  When ingratitude is  shown instead of gratitude by ’killing’ a member of  the community  which  protects the murderer himself  from  being killed,  or  when the community feels that for the  sake  of self-preservation the killer has to be killed, the community may  well  withdraw the protection by sanctioning the  death penalty.   But  the community will not do so in every  case. It  may do so ’in rarest of rare cases’ 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

     33.   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."

     This  Court  in  the   background  of  the  guidelines indicated  in  Bachan  Singh  case  (supra)  formulated  the following  propositions for application to the facts of each case for determination of the question (at p.489):

     (i)  The  extreme  penalty  of   death  need  not  be inflicted except in gravest cases of extreme culpability.

     (ii)   Before  opting  for   the  death  penalty   the circumstances  of  the ’offender’ also require to  be  taken into  consideration  along  with the  circumstances  of  the ’crime’.

     (iii)Life  imprisonment is the rule and death sentence is  an  exception.   In other words death sentence  must  be imposed  only  when  life  imprisonment  appears  to  be  an altogether  inadequate  punishment  having   regard  to  the relevant  circumstances of the crime, and provided, and only provided,  the option to impose sentence of imprisonment for life  cannot  be conscientiously exercised having regard  to the  nature  and  circumstances  of the crime  and  all  the relevant circumstances.

     (iv)  A  balance-sheet of aggravating  and  mitigating circumstances  has  to  be  drawn up and  in  doing  so  the mitigating  circumstances have to be accorded full weightage and  a just balance has to be struck between the aggravating and  the  mitigating  circumstances  before  the  option  is exercised.

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     39.  In order to apply these guidelines inter alia the following questions may be asked and answered:

     (a)  Is there something uncommon about the crime which renders  sentence  of imprisonment for life  inadequate  and calls for a death sentence?

     (b) Are the circumstances of the crime such that there is  no  alternative but to impose death sentence even  after according  maximum weightage to the mitigating circumstances which speak in favour of the offender?"

     The  principles laid down in Bachan Singh case (supra) and  the  formulations made in Machhi Singh case (supra)  as noted  earlier have been applied by this Court in  different cases  depending on the facts and circumstances thereof.  In the case of Nirmal Singh and ors.  Vs.  State of Haryana [JT 1999  (2)  SC  225] this Court while  confirming  the  death sentence  imposed  on  accused  Dharam  Pal,  commuted  such sentence  to  life imprisonment of the co-  accused,  taking note  of  the  facts  that   the  accused  had  no  criminal antecedents,  no possibility of continued threat to society, he  was  only accompanying his brother co-accused  and  gave three blows to one deceased only after his brother had given 2-3  blows to deceased.  No assault by him on other  victims who  were  killed by his brother;  This Court, in the  above case  held  that his case is not of "rarest of rare"  nature and  hence commuted death sentence to life imprisonment.   A Bench  of two learned Judges of this Court in case of Anshad and  others  vs.   State of Karnataka [ 1984  (4)  SCC  381] observed (at p.389-90):

     "The  Courts must be alive to the legislative  changes introduced  in  1973  through Section 354(3)  Cr.PC.   Death sentence,  being an exception to the general rule, should be awarded  in  the  "rarest of the rare  cases"  for  ’special reasons’  to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of  a  given  case.   The number of persons  murdered  is  a consideration  but  that is not the only  consideration  for imposing death penalty unless the case falls in the category of "rarest of the rare cases".  The courts must keep in view the  nature  of the crime, the brutality with which  it  was executed,  the antecedents of the criminal, the weapons used etc.   It is neither possible nor desirable to catalogue all such factors and they depend upon case to case.

     This  Court in the above case, preferred to adopt  the safer  course and imposed the sentence of life  imprisonment on  A-1 to A-3 for the offences under section 302/34 IPC and set  aside  the  sentence of death.  Coming to the  case  in hand, the crime committed is undoubtedly serious and heinous and  the  conduct  of the appellant  is  reprehensible.   It reveals  a dirty and perverted mind of a human-being who has no  control over his carnal desires.  Then the question  is: whether  the case can be classified as of a ’rarest of rare category  justifying  the  severest   punishment  of  death. Testing  the  case on the touchstone of the guidelines  laid down in Bachan Singh (supra), Machhi Singh (supra) and other decisions  and  balancing  the  aggravating  and  mitigating circumstances  emerging from the evidence on record, we  are not  persuaded to accept that the case can be  appropriately called  one  of the ’rarest of rare cases  deserving  death penalty.  We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger

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the  community.   We  are  also   not  satisfied  that   the circumstances  of  the  crime  are such  that  there  is  no alternative   but  to  impose   death  sentence  even  after according  maximum weightage to the mitigating circumstances in  favour of the offender.  It is our considered view  that the case is one in which a humanist approach should be taken in  the  matter  of awarding punishment.   Accordingly,  the capital sentence imposed against the appellant by the Courts below  is  set  aside, instead the  appellant  shall  suffer rigorous  imprisonment  for  life.   Subject  to  the  above modification  of sentence, the appeals filed by the  accused are dismissed.