JUDGMENT

S. RATNAVEL PANDIAN, J.:— "To be or not to be hanged" - is the tormenting question that comes up for consideration in this present Writ Petition.

2. The petitioner, Jumman Khan who is facing the gallows on being condemned to death is seeking issuance of a writ of mandamus commanding the respondent (State of U.P.) through its Secretary, Home Department not to carry out the sentence of death awarded to him in case No. 367/ 84 by the Additional District and Sessions Judge, Agra as confirmed by the judgment and order of the High Court of Allahabad as well as the order of this Court dated 20-3-1986, dismissing the Special Leave Petition (Criminal) No. 558/ 86 and also for a direction directing the respondent to commute the sentence of death to one of imprisonment for life. The indubitable factual matrix leading to the filing of the present Writ Petition may be recapitulated.

3. On the fateful day of the occurrence i.e. 22-6-1983 at about 4.00 p.m. the petitioner went to the house of his neighbour Ausaf Khan while he was away and requested Dulhey Khan Begum, wife of Ausaf Khan to allow her six years old daughter, Sakina who, was an unfortunate victim in this case, on the pretext that he wanted her to bring some ice from the market. Dulhey Khan Begum all owed her daughter to accompany the petitioner and fell asleep. When she woke up after about an hour, she found that her daughter had not returned. Though at first, she thought that Sakina might be playing along with other children in the neighbourhood outside the house, as time passed-by she became panicky. Finding the child not returned, she made a futile search. When she went to the petitioners house, it was found locked. After her husband returned from work at 7.00 p.m. an unsuccessful incisive and frantic search for the child was made in the neighbourhood. Hearing the information of the missing of the child, a crowd collected. When Ausaf Khan again went to the petitioners house in search of his daughter, he was told by a neighbour that at about 4.30 p.m. when he was passing by the petitioners house he noticed Sakina entering that house with ice wrapped in a cloth and the petitioner taking her inside holding her hands. One of the persons of the locality further informed Ausaf Khan that while he was passing the petitioners house, he heard the screaming of a child emanating from the house of the petitioner. The irate crowd went to the petitioners house and flashed a torch through the crevice in the door and found a dead body lying on a cot wrapped in a veil (burka). Then the public effected entry and shockingly found that it was the dead body of Sakina with extensive marks of injuries on her body. Ausaf Khan made a written report on the basis of which a case was registered under Sections 302 and 37 , IP The petitioner was arrested at Aligarh on 25 6-1983. The post-mortem examination of Sakina revealed that she had been brutally raped and strangulated to death. The police after completing the investigation filed the charge sheet. The petitioner took his trial under charges Ss. 376 and 302, IPC. The trial court found the petitioner guilty under both the charges and sentenced him to life imprisonment under Section 376, IPC and to death under Section 302, IPC. The High Court on appeal confirmed the conviction and sentences passed by the trial Court, holding as follows:

"Considering the nature and most gruesome and beastly act perpetrated by the appellant, the appellant deserves no leniency. He had committed premeditated rape on a helpless child aged about six years and he had gone to the extent of strangulating her to death."

4. Feeling aggrieved by the judgment of the High Court, the petitioner filed SLP (Criminal) No. 558/86. This Court by its Order dated 20th March, 1986 dismissed the SLP observing thus:

"Although the conviction of the petitioner under Section 302 of the Indian Penal Code, 1860 rests on circumstantial evidence, the circumstantial evidence against the petitioner l