GOVIND MATHUR, ATUL KUMAR JAIN, JJ. - (1.) THE felony of inhuman rape and brutal murder of a girl of four years has brought the accused appellant on the gallows and execution of that is awaiting our confirmation. Life and death are divine act and this divine authority has been delegated to the Courts by law in exceptional circumstances. The authority delegated is very difficult and requires all cautions in its exercise. The first and foremost effort of a Court should be to continue the life till its arrival at natural end and the delegated divine authority should be exercised only after arriving at a conclusion about non -existence of any other option except awarding judicial death. The non -availability of other option than to award death should be shown by "special reasons for death sentence" as required under sub -section (3) of Section 354 of Code of Criminal Procedure, 1973.
(2.) THE man before us is the accused appellant Kalu Khan, a middle aged man of 48 years, who has been convicted for the offences punishable under Sections 363, 364, 376(2) (f), 302 and 201 Indian Penal Code and awarded death sentence in addition to the sentence of imprisonment for the offences other than Section 302 Indian Penal Code by learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sriganganagar under the judgment dated 7th March, 2013. The special reasons given by the trial court for recording death sentence are - (1) - the accused, a 'Tantrik' was residing in neighbourhood of the parents of victim, a baby of four years. Other residents of the vicinity were having faith on him being a mature middle aged person, but he caused injury to that; (2) - the accused misusing the faith and confidence, brought the victim baby to his residence with an allurement of giving berries to her; (3) - the accused committed heinous crime of rape with small girl that caused serious injuries to her corpus; (4) - the accused then killed the girl by causing injury on her neck with the aid of sharp edged weapon and this act is not only gruesome but against the human values; and (5) - no person of little human prudence could have imagine that a mature man will cause such inhuman and brutal act with a small girl residing in neighbourhood. The crime committed by the accused is an irreparable injury to the human values and that carries it to the category of "rarest of rare" case. An appeal preferred by the accused as per Section 383 of Code of Criminal Procedure, 1973 is also before us, wherein this Court is availing assistance of Shri Kalu Ram Bhati as Amicus Curiae to advance case of the accused appellant.
(3.) THE facts necessary for adjudication of the appeal as well as death reference are that Shri Devilal Meghwal (PW -1), a member of Scheduled Caste, submitted a written report (Ex.P/1) to the Station House Officer, Police Station Lalgarh Jatan on 4th May, 2012 at 01:00 PM with assertion that he is resident of 20 S.P.M. (Ganeshgarh). On 3rd May, 2012, at about 08:00 AM, his grand -daughter Baby "N", aged four years, was at the residence of his younger brother Kashiram, residing in neighbourhood. The girl was missing since 08:30 AM while on way from the house of Kashiram to the house of Devilal Meghwal. Intense search of her was made in entire village, but of no consequence. At about 10:00 on 4th May, 2012, while making search, it was noticed that Jumman Khan son of accused Kalu Khan was burying something in a pit in the court yard of his residence. On asking, he failed to give any satisfactory answer, thus, little digging was made at the place and from there dead body of missing girl was found. Trembled Jumman disclosed that his father Kalu Khan brought Baby "N" to his house by alluring her to give berries. Kalu Khan then prompted Jumman to commit rape with the girl and after commission of that Kalu Khan also committed rape with her. The girl then was killed as her physical condition was deteriorating. An apprehension was disclosed that rape and killing would have been committed as a part of some "Tantrik" process.;