JUDGMENT

R. Subhash Reddy, J.

I have gone through the opinion of my learned Brother, Surya Kant, J. I am in agreement with the view

expressed in the said judgment, to the extent of confirming the conviction recorded against the appellant, for the offence under Sections 363, 376, 377 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’). However, as I am of the view that, this is nota fit case where the appellant is to be awarded capital punishment, i.e, death penalty, as such, I wish to share my view separately, in this judgment.

2. The appellant was tried for committing the rape and murder on the minor girl child “Zoyabano” and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him.

3. By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he

shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/- (Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently.

4. The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals.

5. I am in agreement with the view expressed by my learned Brother, to the extent of upholding conviction, as such, there is no need to appreciatethe evidence on-record in detail. As such, I confineconsideration of such evidence on-record to the extent to modify the sentence on the appellant.

6. For the conviction recorded against the appellant for the offences alleged against him, by balancing the aggravated and mitigated circumstances, I am of the view that the death sentence imposed on the appellant requires modification to that of the lifeimprisonment, without any remission, for the following reasons.

7. For the offence under Section 302 of IPC the punishment prescribed for committing murder is deathor imprisonment for life. At first instance, challenge to Section 302 of IPC was turned down by this Court in the case of Jagmohan Singh v. State of Uttar Pradesh 1973(1) SCC 20. Further, in Constitution Bench, this Court in the case of Bachan Singh v. State of Punjab 1980(2) SCC 684, concluded that Section 302, providing death penalty for offence of murder is constitutional. In the aforesaid judgment, this Court has indicated the standards and norms, restricting the area for imposition of death penalty. Further, for considering the imposition of sentence of death, aggravating and mitigating circumstances were also broadly indicated. In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302, IPC, th