IMPORTANT POINTS
Inordinate delay in justice delivery is an important factor in sentencing.
Commutation or remission should not result in reduction of the sentence to less than the minimum prescribed.

JUDGMENT

KURIAN, J.:

1. All murders shock the community; but certain murders shock the conscience of the Court and the community. The distinguishing aspect of the latter category is that there is shock coupled with extreme revulsion. What should be the penological approach in that category is one question arising for consideration in this case. What is the scope of consideration of Death Reference by the High Court under Chapter XXVIII of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’), is the other question. Whether there is any restriction on the exercise of power under Section 432 Cr.PC for remission and Section 433 Cr.PC for commutation in cases of minimum sentence is the third main issue.

2. On 23.12.2002, Pooja, a tiny girl below five years of age was brutally raped and thereafter murdered by the respondent. He packed the dead body in a sack and further in a bag and secretly left it in a train. By Judgment dated 15.04.2004, the Sessions Court, having regard to the overwhelming evidence, convicted the respondent under Section 302 of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and sentenced him to death. He was also found guilty under Section 376 of IPC and was sentenced to imprisonment for life with a fine of Rs.2,000/-. Under Section 201 of IPC, he was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.500/-. There was default clause as well. The Sessions Court mainly relied on the decision of this Court in Kamta Tiwari vs. State of Madhya Pradesh, (1996) 6 SCC 250. In that case, a seven year old child was raped, murdered and the body was thrown into a well. This Court awarded death sentence. In the instant case, the Death Reference was considered by the High Court of Rajasthan along with the Appeal leading to the impugned Judgment dated 09.11.2004.

The case law on sentencing has been extensively referred to by the High Court. But without reference to the aggravating or mitigating circumstances or to the special reasons, the High Court held that the case does not fall in the category of rarest of rare cases warranting death sentence. Thus, the High Court declined to confirm the death sentence and awarded life imprisonment under Section 302 of IPC. The conviction and sentence under Sections 376 and 201 of IPC was maintained.

3. The State has come in appeal contending that it is a fit case where punishment of death should be awarded to the respondent. There is no appeal by the respondent challenging the conviction and sentence as confirmed by the High Court under Sections 302, 376 and 201 of IPC.

4. Having regard to the above background, it is not necessary to extensively refer to the factual matrix, except for the relevant aspects. However, to understand the nature of the crime, we shall refer to the injuries noticed by the medical board in the post mortem: “Ext. genital part blood stained and vaginal bleeding present, vaginal tear (2nd degree) extend upto anal office postrly, hymen rupture, cervix admit one finger loose, vaginal smear is taken, send for FSL & slide is prepared from vaginal secretion, send for FSL.

1. Ligature mark 1cm x 0.5cm deep is present around the whole neck below the thyroid cartilage, base is brownish Red dry parchment lobe appearance on cut sectioned the sub cut tissue beneath the ligature mark is ecchymosed;

2. Abrasion- 3cm x 0.2cm in size three in number parallel to each other, vertical position mid of the neck antrly below the ligature mark;

3. Ligature mark 1cm breadth is present on antero lateral and post part of middle of both leg, this mark is post mortem in nature.

Injury No. 1 & 2 ante mortem in nature.”

5. In the opinion of the Medical Board, asphyxia due to strangulation was the cause of death.

6. The injuries present on the body of the tiny child would clearly establish the barbaric nature of the commission of the offence. The respondent had some previous acquaintance with the child when he used to visit his paren