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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[1]. 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.

“Poverty, socio-economic, psychic compulsions, undeserved adversities in life are thus some of the mitigating factors to be considered, in addition to those indicated in Bachan Singh and Machhi Singh cases.” That was a case where a poor tailor finding it difficult to maintain his family of wife and three children, one of whom also required constant treatment, decided to wipe out the entire family. Poverty shall not be understood and applied as disjunct from the factual position. In other words, poverty or socio-economic, psychic or undeserved adversities in life shall be considered as mitigating factors only if those factors have a compelling or advancing role to play in the commission of the crime or otherwise influencing the criminal. Thus, merely because the offender is a poor person, his poverty will not be a mitigating factor. In this case the mitigating factor of the crime is not poverty. The lust fuelled crime of rape and murder and that too of a minor child of tender age has nothing to do with the poverty, socio-economic background or other psychic compulsions of the criminal. The decision in Sunil Damodar Gaikwad’s case (supra) will stand clarified to the above extent.

19. We are also fortified in our view by the following decisions of this Court in similar circumstances. In State of U.P. vs. Satish[16], this Court reversed the acquittal by the High Court and awarded death sentence. It was case of rape and murder of a minor girl aged less than six years. Shivu (supra) was a case of rape and murder of an eighteen year old girl by the neighbours. The death sentence on both the accused was upheld by this Court. Bantu vs. State of Uttar Pradesh[17] was a case of the accused alluring a five year old child with a balloon, committing rape and murder. The death sentence was upheld by this Court. Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra[18] was a case of a nine year old child being taken by a neighbour who promised to help her to collect wood from the forest, raped and murdered her. This Court upheld the death sentence. Mohd. Mannan alias Abdul Mannan vs. State of Bihar[19], authored by one of us (Prasad, J.), is a case of rape and murder of a seven year old child. The death sentence awarded by the Sessions Court as confirmed by the High Court was upheld. Rajendra Pralhadrao Wasnik vs. State of Maharashtra[20] is a case of rape and murder of a three year old girl child. There also, the death sentence awarded by the Sessions Court as confirmed by the High Court was upheld by this Court.