JUDGMENT

D.P. Mohapatra, J.-Mohd. Chaman, the accused in Sessions Case No.134 of 1996 (State v. 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.

2. 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.

3. 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 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.

4. 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 intermitte