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PETITIONER: JAI KUMAR

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       11/05/1999

BENCH: Umesh C Banerjee, M.Srinivasan

JUDGMENT:

BANERJEE, J.

Leave granted.

     This  appeal by the grant of special leave is directed against  the order of confirmation of death sentence by  the Division  Bench  of  the  High Court of  Madhya  Pradesh  at Jabalpur.   Since  the  appeal pertains to  confirmation  of death  sentence  by  the High Court and  the  submission  in support  of  the  appeal is restricted to  the  question  of sentence,  it  would be convenient to note at this  juncture that  it  is  only  in the rarest of rare  cases  that  this punishment  is to be inflicted and it is on this score  that Mr.   Muralidhar, the amicus curiae appointed in the  matter with   his  usual  ability   strongly  contended  that   the punishment awarded by the Sessions Judge and as confirmed by the High Court, runs counter to the basic concept of law and justice  of the situation.  As a part of the submission, Mr. Muralidhar  placed  strong reliance on Sections 235 (2)  and 354  (3)  of  the Code of Criminal  Procedure.   But  before consideration of the submissions on legal issue as above, it would  be convenient to advert to the factual matrix of  the matter  in  issue,  in order to assess the situation  as  to whether  the  matter  in issue in fact  falls  squarely  and evenly  on  the category of rarest of the rare  cases.   The factual  score depicts that the appellant was charged  under Section  302 read with Section 201 for committing murder  of deceased  Dev Vati, aged 30 years and a girl child Renu aged 8  years, on the night of 7th January, 1997.  Both the  lady and  the  girl child, however, were related to the  accused, being  the  sister-in-law  (brother’s wife)  and  the  niece respectively.   Apart from the evidence tendered before  the court  by  the  mother and the nephew  respectively  of  the accused, the latter himself in his examination under Section 313 of the Code categorically stated and admitted the factum of  murder  - the situation, therefore, is that the  accused admits of murdering his sister-in-law and the niece- and the reason  put forth- the sister-in-law has not been giving him enough  food  and as such on being enraged  therewith,  this offence   was  committed  -  but   what  about  the   child? Significantly there is no whisper pertaining thereto - is it because  that the child witnessed the gruesome murder of the mother  and  as  such  the  child  shall  also  have  to  be

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eliminated  -  may  be,  but  let  us  not  proceed  on  any hypothesis, the fact remains however, that both the Sessions Judge  and  the High Court disbelieved this version  of  the accused.   The mother in her evidence in no uncertain  terms stated  that  there  was an attempt to commit  rape  on  the sister-in-law  and  by  reason  of  resistance,  the  rapist committed the offence and on the same being put forth to the accused  -  the  answer comes that all the children  of  the sister-in-law  were  illegitimate children and her visit  to her  father’s  place and affinity with friends in that  area had  brought  about this situation of having  two  children: Incidentally,  however, the lady murdered was at an advanced stage  pregnancy at the time of her death.  The evidence  on record  depicts  that on the fateful night of  7th  January, 1997,  at village Rakri Tola, Tikuri, District Rewa,  Madhya Pradesh,  the  accused  entered the house  and  bolted  from outside  the  mother’s room and thereafter  removed  certain bricks  from  the wall and ‘choukat’ thus  facilitating  the entry  into  the room where the deceased  sister-in-law  was sleeping  with the child and had to face this gruesome death in  the hands of the brother-in-law.  The evidence on record depicts  that  the  accused  committed  the  murder  of  his sister-in-law  at about 11.00 p.m.  by Parsul blows and then kulhadi (tanga) blows on her neck severing her head from the body  and  taking  away her 8 years old  daughter  Renu  and killing  her in a jungle by Axe blows said to be by offering sacrifice  to  Mahuva  Mahraj and burying her  in  the  sand covered  with  stones and it is thereafter that the  accused comes  back  home  and  carry   the  body  of  the  deceased sister-in-law  tied  in a cloth to the jungle and  hung  the head being tied on a branch with the hairs and put the body, on  the  trunk of the Mahua tree.  As regards  the  injuries suffered, P.W.11, Dr.  RR Misra stated:-

     (1) Rigor mortis was present over the body and clotted blood  was  present all over the body.  Head  was  separated from  the body.  Whole face, head and hair were stained with blood.   Clothes, saree, blouse, petticoat were also stained with  blood.  Left eye was damaged.  Lacerated wound at  the bridge  of nose size 3x2x1 cm.  Length, width and depth  and bone  of  nose  fractures.  (2) Incised wound  on  occipital region of head, size was 13 cm.  x 4 cm.  x.  4 cm.  length, width  and  depth,.   Bone at the place of injury  was  cut, brain  matter  was visible at that place and  damaged.   (3) Incised wound on upper part of neck.  Head is separated from the  body.   All structure of neck, muscles, veins were  cut due  to this injury.  (4) Incised wound on middle finger  of left,  ring  finger and index finger and injury of size  was 3x2x1 cm.  was present on last vein.

     2.   All  the above mentioned injuries appeared to  be caused with hard and blunt object."

     On  the  same  date, the same  constable  had  brought before  me the dead body of deceased Renu, daughter of Gulab Prasad,  aged 7 years for the post-mortem.  I started  post- mortem on the dead body at 2.30 p.m.  and found following in the examination:-

     External examination:-

     Rigor  mortis  was present all over the body and  dust particles were attached all over the body, clotted blood was

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present  all  over  the body.  All the  clothes  were  blood stained.

     (1)  Incised  wound on front of chest on  right  side, size was 4.5 cm.  x 1-1/2x1 cm.

     (2)  Incised wound on left side of neck , middle  part of  back  of neck size was 7 cm.  x 6 cm.  x 2 cm.   At  the place  of  wound muscles, and veins were cut.   Vertebra  of neck 3rd and 4th were fractured.

     (3)  Incised  wound on left side of cheek.   Size  was 6x3x3 cm.  and mandible bone was fractured and it was in the left side.

     (4)  Incised  wound on right index finger  and  middle finger.   Size was 2x1x1 cm.  Middle finger of left hand was found cut and separated means upper portion was separate."

     It  is  on this evidentiary backdrop that the  learned Sessions  Judge thought it fit to pass death sentence in the matter  and which stands confirmed by the High Court and  it is  on  this perspective that the basic issue of  punishment ought  to be assessed.  Turning attention on to the issue as regards  non-compliance  of Section 235 (2) of the Code  Mr. Muralidhar  contended that there has been a violation of the mandatory  legal requirement of an effective and substantial opportunity  to  be given to the accused for being heard  on the  question  of  sentence.   It has  been  submitted  that requirement  of  hearing of the accused on the  question  of sentence,  upon a plain reading of Sections 235(2) is not an empty  formality but a mandatory requirement and in  support of  his contention placed strong reliance on the decision of this  Court in the case of Muniappan v.  State of  TamilNadu [1981  (3) SCC 11] wherein this Court at page 13  observed:- "We  are also not satisfied that the learned Session’s Judge made  any serious effort to elicit from the accused what  he wanted  to  say on the question of sentence.  All  that  the learned  Judge  says is that "when the accused was asked  on the  question  of sentence, he did not say  anything".   The obligation  to hear the accused on the question of  sentence which  is imposed by Section 235 (2) of the Cr.P.C.  is  not discharged by putting a formal question to the accused as to what  he has to say on the question of sentence.  The  Judge must  make  a genuine effort to elicit from the accused  all information  which  will eventually bear on the question  of sentence...  question which the judge can put to the accused under  section  235  (2) and the answers which  the  accused makes  to those questions are beyond the narrow  constraints of  the  Evidence Act.  The court, while on the question  of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order than  those  which  come  into   play  on  the  question  of conviction"

     Mr.  Muralidhar contended that there are certain other factors  which  shall also have to be taken into account  by the  Court in deciding upon the appropriate sentence to wit: his  education,  his home life, social adjustments  and  the emotional and mental conditions of the offender and it is in this  context  reliance was placed on the decision  of  this Court  in Santa Singh v.  State of Punjab [1976 (4) SCC 190]

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wherein  this Court observed:- "The reason is that a  proper sentence  is the amalgam of many factors such as the  nature of   the  offence,  the   circumstances  -  extenuating   or aggravating  - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the  offender,  as  to  employment, the  background  of  the offender  with  reference to education, home life,  sobriety and social adjustment, the emotional and mental condition of ‘the  offender’, the prospects for the rehabilitation of the offender,  the  possibility of return of the offender  to  a normal  life in the community, the possibility of  treatment or  training  of  the  offender, the  possibility  that  the sentence  may serve as a deterrent to crime by the  offender or  by  others and the current community need, if  any,  for such  a  deterrent  in  respect to the  particular  type  of offence.   These  are  factors which have to be  taken  into account  by  the  court  in deciding  upon  the  appropriate sentence  and therefore, the legislature felt that, for this purpose,   a  separate  stage   should  be  provided   after conviction  when the court can hear the accused in regard to these  factors  bearing  on sentence and  then  pass  proper sentence  on  the  accused.   Hence, the  new  provision  in Section 235(2)."

     Mr.    Muralidhar   contended     further   that   the constitutional  basis for recognising this inviolable  right of the accused has also been very lucidly elucidated by this Court  in Allaudin Mian v.  State of Bihar (1989) 3 SCC  (5) wherein  this Court at page 20 of the report observed:  "The requirement  of  hearing the accused is intended to  satisfy the   rule  of  natural  justice.    It  is  a   fundamental requirement  of fair play that the accused who was hither to concentrating on the prosecution evidence on the question of guilt  should,  on  being found guilty be asked  if  he  has anything to say or any evidence to tender on the question of sentence.   This is all the more necessary since the  courts are  generally required to make the choice from a wide range of  discretion  in the matter of sentencing.  To assist  the court  in determining the correct sentence to be imposed the legislature  introduced sub-section (2) to section 235.  The said  provision  therefore  satisfies a  dual  purpose;   it satisfies  the  rule of natural justice..  And at  the  same time  helps the court to choose the sentence to be awarded.. There  can  be no doubt that the provision is  salutary  and must  be  strictly  followed.  It is clearly  mandatory  and should  not  be treated as a mere formality...  In  case  of life  or  death..   The presiding officer must show  a  high degree of concern for the statutory right of the accused and should  not  treat it as a mere formality...  We think as  a general  rule  the  trial court should after  recording  the conviction adjourn the matter to a future date and call upon the prosecution as well as the defence to place the relevant material  bearing on the question of sentence before it  and thereafter  pronounce  the  sentence to be  imposed  on  the offender...."

     Before  launching  a discussion on the merits  of  the submissions, it would be convenient to note the true purport of   Section  302  for   ascertainment  of  the  legislative perspective.    Section  302  of   the  Indian  Penal   Code authorises  the Court to punish the offender of murder  with death  or imprisonment for life - the statute therefore  has provided  a discretion to the court to sentence the offender either with death or with imprisonment for life:  Obviously, a serious decision and a heavy burden imposed on the Court -

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This  discretion  conferred however, shall have to  be  thus exercised  in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect  of  the matter that in a long catena of  cases  this Court  in  no uncertain terms laid down that award of  death sentence  though  within  the ambit of jurisdiction  of  the courts,  but that does not clothe the courts to exercise the same in a manner indiscriminate - This Court has been candid enough  to record on more occasions than one that it is only in  the  rarest  of the rare cases that this  discretion  as regards capital punishment ought to be exercised.  Ours is a civilised  society  - tooth for a tooth and eye for  an  eye ought  not to be the criteria;  the civilisation and the due process of law coupled with social order ought not to permit us  to be hasty in regard to the award of capital punishment and  as a matter of fact the Courts ought to be rather  slow in  that direction.  Justice is supreme and justice ought to be  beneficial for the society so that the society is placed in a better off situation.  Law courts exist for the society and  ought  to rise up to the occasion to do the needful  in the  matter,  and as such ought to act in a manner so as  to sub-serve  the  basic requirement of the society.  It  is  a requirement  of the society and the law must respond to  its need.  The greatest virtue of law is its flexibility and its adaptability,  it  must change from time to time so that  it answers  the cry of the people, the need of the hour and the order  of the day.  In the present day society, crime is now considered  a  social  problem  and by  reason  therefore  a tremendous  change  even conceptually is being seen  in  the legal  horizon  so far as the punishment is concerned.   One school  of thought on this score propagates the function  of the  law  court is that of a social reformer and as such  in its  endeavour  to  act  as   such,  question  of  deterring punishment would not arise since the society would otherwise be  further  prone  to such violent acts  or  activities  by reason  of the fact that with the advancement of the age the mental  frame of boys of tender age also go on changing  and in  the event of any arrogance being developed or a sense of revenge  creeps the society, the society would perish to the detriment  of  its  people.    The  other  school,  however, expressly  recorded  and  rather  emphatically  that  unless severest  of  the  severe punishments are  inflicted  on  an offender  (obviously depending upon the nature of the crime) the  society would perish.  The other school professes  that since  one has taken the life of another that does not  mean that his life shall have to be taken but during the trial if it  transpires  the method and manner or the nature  of  the activities  which has resulted in the elimination of a human being from this world, there should not be any laxity on the part  of  the law courts, otherwise people will and in  turn the  society will be engulfed in false sense of security  of life  in the event of there being most heinous crime of  the earth.   The law courts as a matter of fact have been rather consistent  in the approach that a reasonable proportion has to  be  maintained between the seriousness of the crime  and the   punishment.   While  it  is   true  that  a   sentence disproportionately  severe, ought not to be passed but  that does  not even clothe the law courts with an option to award the sentence which would be manifestly inadequate having due regard  to  the  nature of the offence since  an  inadequate sentence  would  fail to produce a deterrent effect  on  the society  at  large.  Punishments are awarded not because  of the  fact that it has to be an eye for an eye or a tooth for tooth,  rather having its due impact on the society:   while undue  harshness  is not required but inadequate  punishment

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may  lead  to sufferance of the community at large.   Having dealt  with  the matter as above, it would be convenient  to note  the  finding of learned Sessions Judge as regards  the compliance  of  Section 235 (2) of the Code.  At page 22  of the judgment the learned Sessions Judge records:- "26.  From the  appreciation of the above mentioned all the  evidences, the  charge  against the accused Jai Kumar is  found  proved under  Section  302  and Section 201 IPC beyond  any  doubt. Therefore,  the  judgment  is adjourned for hearing  on  the question of order of sentence in the crime."

     Sd/- R.C.  Chandel Sessions Judge, Rewa M.P.

     27.  Learned counsel of both the parties were heard on the  question of sentence.  Both the parties do not want  to give any documentary oral verbal evidence with regard to the above.   It  is the request of the learned  defence  counsel that  the age of the accused is 22 years and he has not  any past  criminal history and this is not such a case in  which the  accused  may  be  awarded  the  maximum  sentence  i.e. sentence  of death.  Learned counsel cited the reference  of the 1996 (1) Crimes-137 (S.C.) Ravender Trimbak Chothmal vs. State of Maharashtra.  Learned Public Prosecutor pleads that the  accused  has committed efforts to commit rape with  his motherlike  Bhabhi-deceased Dev Vati and on being failed  in this,  caused  her brutal death, severed her head  from  the body  and hanged her head on the tree and put her dead  body on  the tree.  Along with this, the accused after taking the minor  child  deceased Kumari Renu to the jungle merely  for the  reason that she had seen the accused committing murder. Firstly  he  offered  prayers  in the  jungle  and  then  he committed  her  murder with the axe.  The above act  of  the accused being brutal is such a case where it is necessary to award  the  accused the sentence of death.   Learned  Public Prosecutor  has  given the reference of 1996 Crl.L.J.   4158 Kamta  Tiwari  vs.   State  of M.P.,  1995  Na.Ni.Sa.?   18, Amritlal  Someshwar  Joshi versus State of  Maharashtra.   I have  carefully perused the legal illustrations referred  by the learned counsel and I am agree with the principals which are propounded in the judicial illustrations.

     28.   As  is clear from the evidences come up  in  the case  that the accused tried to commit rape on the  deceased Dev  Vati  who was his bhabhi and on being protested by  her against  him, he committed her murder.  Not to talk of this, he  severed  the head with kulhari and after tying the  dead body  in a dhoti took it in the jungle at the Hardia  Pahari and  there the head of the deceased was hanged with the tree and  put the dead body of the deceased on the tree.  Because the  deceased  Kumari  Renu  had   seen  the  above  accused committing  the  murder of the deceased Dev Vati.  For  this reason,  the  accused  offered the nine  years  minor  child (female)  deceased  Kumari Renu who was the daughter of  the deceased  Dev  Vati, in the jungle and further  offered  the broken  mirror,  oil  of Awala Mustard oil,  Guvava,  onion, Bindia  to Mahua Maharaj (see thereby question No.  25 under Section  313 Crl.P.C.) and then after causing the blow  with kulhari  on  the head of the deceased Kumari Renu  committed her  murder  and after putting her dead body under the  Balu sand  suppressed her dead body but keeping the stones on her foot and head.

     .............

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     Before  arriving  at  the   conclusion,  I   seriously discussed   over  this  for  so   many  times  but  in   the circumstances of the case and keeping in view the brutal act of  the  accused  Jai Kumar, it would not be  sufficient  to award  him  the sentence of life imprisonment and with  this there  would  not  be  any proper  effect  on  the  society. Therefore  keeping  in  view the entire  circumstances,  the accused  Jai  Kumar  is sentenced to death for  the  offence punishable  under Section 302 IPC for committing the  murder of  the  deceased  Dev Vati and the  deceased  Kumari  Renu. Beside  this,  the accused is sentenced to undergo  7  years rigorous imprisonment for the crime punishable under Section 201  of  the Indian Penal Code.  The accused Jai  Kumar  has been in judicial custody since 8.1.97 in this case".

     The  order  of the learned Sessions Judge as  recorded above  unmistakably depicts that both the parties were heard and  none  of the parties wanted to give any documentary  or oral  evidence  with regard to sentence.  But the factum  of submissions  and  considerations  thereof  as  appears  from paragraphs  27 and 28 leads us to a definite conclusion that there  has been no miscarriage of justice.  Be it noted that the statute has engrafted in the statute book the provisions of Sections 235 (2) so as to see that proper appreciation of the  evidence takes place and proper opportunity of  hearing as  regards punishment be afforded, but if there is no taker of  such  an  opportunity  inspite of  there  being  lawyers appearing  for  the  accused as well,  question  of  further adjournment  of the matter would not arise.  It is true that the obligation is not discharged by putting formal questions to  the  accused -The Judge is supposed to elicit  materials from  the accused which will have a bearing on the  question of  sentence  and it is on this requirement of law,  let  us consider  as  to  whether there was in fact such  a  genuine attempt  to elicit materials-but as the record depicts there was  no  taker  of this opportunity and the  defence  lawyer pleaded  two facts to be considered in the matter for  award of punishment viz.  (a) The accused is aged 22 years and (b) No  other  past Criminal Record:  We wish to put  on  record that  trying  Judge has shown utmost concern and after  much deliberation  came to the conclusion as above in the  matter of  the  grant  of punishment.  The ratio dicedendi  of  the cases  noticed is to see that there is no statutory  mockery resulting  in a total miscarriage of justice.  The  judgment was adjourned and the lawyer was asked - and prompt came the reply  that the sentence ought to be considered by reason of the  age  and no past record:  Both these aspects have  duly been  considered by the Sessions Judge and we do not see any infirmity therein.  Incidentally the High Court on the issue of  punishment  did rely upon the decision of this Court  in Bachan  singh vs.  State of Punjab [1980 (2) SCC 684] and  a long  catena  of cases and upon reliance thereon,  the  High Court  observed:   "Absence of proof of motive and youth  of the  accused  are  two factors urged here and also  that  he pleaded  guilty.  Let us ignore the statement of the  mother of the accused that he wanted to violate the chastity of the deceased Dev Vati as no other overt-act of the accused about it  is established.  It makes no difference whatsoever.  His ruthlessness as indicated by the fact that he is not content with  slaying Dev Vati into two pieces and hung her head and trunk  on  a  Mahua  tree,  but  he  is  now  murdering  her reputation  by totally false assertion that she was unchaste

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and  all her children were illegitimate.  The fact that even his  mother deposed against him (of course, the truth), goes to  show what type of living danger, he is to the family and to society.  Absence of proof of motive has not been held to be  so  relevant factor in reaching the conclusion  about  a case  being rarest of rare or not.  As we have seen in above precedents, absence of motive loses its mitigating weight if the  crime  is  concluded with extreme cruelty  on  innocent child  and hapless lady.  In this case, help to the lady was foreclosed by the accused by bolting his mother in the room. He  broke  into  the room of the victim by  dismantling  the bricks  of wall around the door.  We have found it as a fact that the plea taken by him about suspicion for the last five years  against the chastity of the deceased is  deliberately false  and  an after-thought.  Similarly, his plea that  the deceased child was born by illicit connections with somebody at  her  matrimonial home is also deliberately  false.   His plea that he was not being given food for the last 3 days is certainly  false and an after-thought as already  discussed. The  deceased was his brother’s wife and he had no grievance against  his  brother.  He broke into the room of the  lady, dragged her out and killed her and chopped off her head.  He was  not content with this.  It was not sudden rage.  He was acting  in a calculated manner.  He took away his 7 year old niece  and chopped off her neck, but for slander  attachment of  the neck with the rest of the body.  Some of her fingers were  chopped  off and the body was buried.  He had  offered ‘Puja’  to Mahuva Tree and hung the head of Dev Vati  there, separately.   So, that shows the type of the man he is.  All these factors are corroborated by various photographs of the scenes  of killing, the scenes of body placed on Mahuva tree and  the scene of the girl buried in sand and below  stones. The  mere  fact that the accused admits to have  killed  the lady  and  the  daughter does not amount to remorse  on  his part.   He  is  justifying it on false and  indecent  pleas. Such calculated ghastly and cruel murder of hapless lady who was pregnant of about 22-30 weeks and hapless innocent child is  bound  to send shock waves in the society.   It  creates feeling of revolt in the conscience."

     In  the  contextual  facts, we have no  hesitation  to record  that  as  a matter of fact there are  no  mitigating circumstances  and our search in that direction was in vain, on  the  contrary the aggravating situations are  galore  to support  the  finding of the Sessions Judge as confirmed  by the  High  Court.  And it is on this count  Mr.   Muralidhar contended  that hearing on the question of sentence is  also necessitated  by reason of the fact that till then the Judge has no opportunity to ascertain the relevant aggravating and mitigating  circumstances  bearing  upon   the  question  of sentence and many of which may not appear from the record of the case.  We are, however, unable to record our concurrence to  the  submissions  of Mr.  Muralidhar in  the  contextual facts   as  noticed  herein   before.   The  guidelines   as formulated in Bachan Singh’s case (supra) and adopted in two subsequent  decisions  of  this Court in  [Machhi  Singh  v. State of Punjab (AIR 1983 SC 957 and Kamta Tiwari vs.  State of  M.P.   (1996  Crl.  Law Journal 4158)] do not  lend  any assistance to Mr.  Muralidhar.  This Court in Kamta Tiwari’s case as a matter of fact pointedly observed that co-relation of aggravating and mitigating circumstances and a balance be struck  on the basis of the factual matrix of the matter  in issue,  before  the exercise of discretion in terms  of  the provisions of Section 302.  In the matter in issue, however, we  do  not  find  any balancing factor so as  to  strike  a

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balance.   As a matter of fact aggravating factors there are aplenty  and galore without any mitigating circumstances  as noticed  above.   The age of the accused being of  22  years cannot,   in  the  factual  matrix   of  the  matter   under consideration,  be said to be a mitigating factor.   Accused is of 22 years of age while the victim was aged 30 years and at  the  time  of  the  unfortunate  death,  she  was  under pregnancy  between 22 to 30 weeks - the other victim was  an innocent  girl - a child of 8 years:  the murders were  cold blooded  while  two  victims were in  helpless  and  hapless situation.  No amount of perversity would prompt a person to break open the door by removing the bricks from the wall and commit  such gruesome murders on failure to satisfy the lust -  the  human lust ought to know its  limits.   Imaginations shall  have  to  run  wild  to  consider  existence  of  any mitigating  factors  in the matter of sentence,  having  due regard  to even the subsequent conduct of the accused in the matter  of  disposal  of the bodies as noticed  above.   Can there  be  any mitigating circumstance on account of such  a ghastly act - the answer cannot but be in the negative.  The mother  of  the accused was bolted inside the room  and  she watches  as  a bewildered spectator from the creeks  of  the window and it is the mother who had given evidence about the bad characteristics and the reputation of the accused in the locality:  the sister-in-law has been murdered along with an innocent  child  - Is this a man who deserves  any  sympathy from the society - Is this a man who can correct himself and the  law  courts ought to permit him to lead a  decent  life after he serves the sentence:  The mother’s evidence becomes material  and  it  is on this score that we  are  unable  to record   our  concurrence  with   the  submissions  of   Mr. Muralidhar  that there are some mitigating circumstance  and there  is  likelihood  of  the  accused  being  reformed  or rehabilitated.   Incidentally, the High Court has  described the  accused  as "a living danger" and we cannot agree  more therewith  in view of the gruesome act as noticed above.   A faint  attempt  has been made by Mr.  Murlidhar  as  regards non-  compliance of Section 354 (3) of the Code.  We however are  not  in a position to record our concurrence,  thereto, having due regard to the reasonings available in the body of the judgment itself and we need not by reason thereof dilate much  on that score.  The facts establish the depravity  and criminality  of  the  accused in no uncertain terms.   -  No regard  being had for precious life of the young child also. The compassionate ground of the accused being of 22 years of age cannot in the facts of the matter be termed to be at all relevant.   The  reasons put forth by the  learned  Sessions Judge  cannot but be termed to be unassailable.  The learned Judge  has  considered the matter from all its  aspects  and there is no infirmity under Section 235 (2) or under 354 (3) of  Code and as such we are not in a position to record  our concurrence with the submissions of Mr.  Muralidhar.  In the present case, the savage nature of the crime has shocked our judicial conscience.  The murder was cold-blooded and brutal without  any provocation.  It certainly makes it a rarest of the  rare  cases  in  which  there  are  no  extenuating  or mitigating circumstances.  The observations of this Court in Dhananjoy  Chatterjee  alias Dhana v.  State of West  Bengal [1994 (2) SCC 220], to which one of us (CJI as he then was a party)   while  confirming  the   sentence  of  death   lend concurrence  to  the  views  expressed  above.   This  Court opined:

     "In  our opinion, the measure of punishment in a given case  must  depend  upon  the atrocity of  the  crime;   the

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conduct  of the criminal and the defenceless and unprotected state  of the victim.  Imposition of appropriate  punishment is  the manner in which the courts respond to the  society’s cry for justice against the criminals.  Justice demands that courts  should impose punishment befitting the crime so that the  courts  reflect  public abhorrence of the  crime.   The court  must not only keep in view the rights of the criminal but  also the rights of the victim of crime and the  society at  large  while  considering   imposition  of   appropriate punishment."

     We  do not see, by reason of the discussion as  above, any  mistake  of justice has taken place and we  record  our concurrence  with the observations and findings of the  High Court.

     We,  therefore,  find  no infirmity  in  the  sentence awarded  by the Sessions Judge and as confirmed by the  High Court.  This appeal, therefore, fails and is dismissed.