JUDGMENT

BHAGWATI, J.: — This appeal, by special leave, is limited only to the question of sentence. The appellant has been sentenced to death for an offence under Section 302 of the Penal Code. The question is: Should the extreme penalty of death be commuted to one of life imprisonment? To answer the question it is necessary to state a few facts.

2. The appellant and a few others were tried in the Court of the Sessions Judge, Unnao for offences under Section 148 and Section 302 read with Section 149 of the Indian Penal Code. The learned Sessions Judge, on an appreciation of the evidence, found that the appellant, SheoDayal, Mihi lal, Dularey and Mewa Lal had formed an unlawful assembly and in pursuance of its common object, the appellant had intentionally caused the death of one Ram Kumar by inflicting on him a severe injury with a banka severing his head from the body and then carried away the head in an angaucha in a most brutal and inhuman fashion. On this finding, the learned Sessions Judge convicted the appellant, Sheo Dayal,Mihi Lal, Dularey and Mewa Lal of offences under Section 148 and Section 302 read with Sec. 149 and sentenced each of them to rigorous imprisonment for one year for the former offence and to death for the latter. The appellant, Sheo Dayal, Mihi Lat, Dularey and Mewa Lal preferred an appeal to the High Court against the order of conviction and sentence recorded against them and their case was also referred to the High Court for confirmation of the death sentence. The High Court agreed with the findings reached by the learned Sessions Judge and confirmed the conviction of Sheo Dayal, Mihi Lal, Dularey and Mewa Lal under Section 148 and Section 302 read with Section 149 but reduced their sentence to one of life imprisonment for the offence under Section 302 read with Section 149 and so far as the appellant was concerned, the conviction was converted to one under Section 302 and the sentence of death was maintained. The appellant thereupon preferred an application for special leave and on that application, special leave was granted by this Court limited only to the question of sentence.

3. Now, there can be no doubt that the crime committed by the appellant was a most reprehensible and heinous crime which disclosed brutality and callousness to human life and no extenuating circumstances could be pointed out on behalf of the appellant which would assuage the conscience of the Court and persuade it not to inflict the extreme penalty of death on the appellant. The only circumstance on which reliance could be placed on behalf of the appellant for mitigating the rigour of the punishment to be inflicted on him was his tender age at the time of the commission of the offence. The record of the case shows that the appellant was about sixteen years of age at the time when he committed this brutal crime. The question is : whether this could be regarded as a valid circumstance for invoking the clemency of penal justice?

4. The legislative history in regard to the subject of capital punishment shows that there has been significant change in thinking and approach since India became free. Prior to the amendment of Section 367 (5) of the Code of Criminal Procedure by Act 26 of 1955, the normal rule was to impose sentence of death on a person convicted for murder and, if a lesser sentence was to be imposed, the Court was required to record reasons in writing. But by Act 26 of 1955 this provision in Section 367 (5) was omitted, with the result that the Court become free to award either death sentence or life imprisonment and no longer was death sentence the rule and life imprisonment the exception. Then again, a further progress was made in the same direction by Section 354 (3) of the Criminal Procedure Code, 1973. That section provides that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons f