RAMESH SINHA,J. - (1.)Two accused persons, namely, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, were tried by the Additional District & Sessions Judge/Special Judge (POCSO Act), Faizabad in Special Sessions Trial No 84 of 2014 (C.N.R. No. UPFZ01-001666-2014, Registration No. 466 of 2014) : State Vs. Santosh Kumar Nat and another, arising out of Case Crime No. 357 of 2014, under Ss. 302, 376A, 376D, 377 and 201 of the Indian Penal Code, 1860 (in short, referred hereinafter as ''I.P.C.') and Sec. 3/4 of the Protection of Children from Sexual Offences Act, 2012 (in short, referred hereinafter as ''POCSO Act'), Police Station Kotwali Bikapur, District Faizabad.
(2) Vide judgment and order dtd. 16/11/2019, the Additional District and Sessions Judge/Special Judge (POCSO Act), Faizabad, convicted and sentenced accused persons, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, in the manner as stated hereinbelow :-

i. Under Sec. 302 I.P.C. to be hanged to death till they are dead and fine of Rs.50,000.00. In default of fine, two years additional rigorous imprisonment;

ii. Under Sec. 376A I.P.C. to undergo life imprisonment;

iii. Under Sec. 376D I.P.C. to undergo rigorous imprisonment for life along with fine of Rs.25,000.00. In default of fine, one year additional rigorous imprisonment;

iv. Under Sec. 377 I.P.C. to undergo rigorous imprisonment for life along with fine of Rs.25,000.00. In default of fine, one year additional rigorous imprisonment; and

v. Under Sec. 201 I.P.C. to undergo seven years R.I. and fine of Rs.10,000.00. In default of fine, six years additional rigorous imprisonment.

All the sentences were directed to run concurrently.

(3) Aggrieved by the aforesaid judgment and order dtd. 16/11/2019, convicts/appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, preferred Jail Appeal No. 2322 of 2019 : Santosh Kumar Nat and another Vs. State of U.P.

(4) Capital Case No. 1 of 2019 arises out of the Reference made by the learned trial Court under Sec. 366 (1) of the Code of Criminal Procedure, 1973 to this Court for confirmation of the death sentence of convicts Santosh Kumar Nat and Mamman alias Sonu alias Tejpal.

(5) Since the above-captioned capital sentence reference and jail appeal arise out of a common factual matrix and impugned judgment dtd. 16/11/2019, we are disposing of these matters, by this common judgment.

(6) In view of the judgments of the Apex Court in Bhupinder Sharma Vs. State of H.P. : (2003) 8 SCC 551 and Nipun Saxena and another Vs. Union of India and others : 2018 SCC OnLine 2772, the name of the victim is not being mentioned and describe her as "victim X" in the judgment hereinafter.

(B) FACTS

(7) The informant Sri Prem Chandra (P.W.1) had filed written report (Ext. Ka.1), alleging therein that on 11/9/2014, at about 06:00 p.m., his daughter, the ''victim X', aged about 06 years, had gone from house on the outer side of village for call of nature, after informing to her mother Usha (P.W.3) but she (''victim X') did not return home, then, they searched a lot but could not trace her. His daughter's appearance is dark colour; small hair on the head; short height 2¾ feet; average built; barefoot; and wore pink colour frock, tight pink-colour paijama, pink colour underwear, silver ear rings in the ears; and simple nose pin on the nose. His daughter is frequent in conversation and is aware of her name and address. It has further been stated that he did not have any enmity with anyone nor has any land dispute.

(8) On the basis of the aforesaid written report (Ext. Ka.1), an F.I.R. (Ext. Ka.9), bearing Case Crime No. 357 of 2014, was registered under Sec. 363 I.P.C., Police Station Kotwali Bikapur, District Faizabad, against unknown person.

(9) The evidence of P.W.6-Constable Rakesh Kumar shows that on 12/9/2014, he was posted as Constable at Police Station Bikapur, District Faizabad. On the said date, on the basis of the written report (Ext. Ka.1) submitted by the informant Prem Chandra (P.W.1), an F.I.R. (Ext. Ka.9) bearing Case Crime No. 357 of 2014, under Sec. 363 I.P.C. was registered by him against unknown person at 12:30 a.m. in chik no. 191 of 2014.

In cross-examination, P.W.6-Constable Rakesh Kumar had deposed that this case is five years old and it was not registered in the presence of S.O. but it was registered in the presence of the officer present in night. The informant Prem Chandra (P.W.1) had come to his office with a written report for lodging F.I.R. He further deposed that he could not tell whether informant Prem Chandra (P.W.1) was literate or not. When the informant (P.W.1) came for lodging the report, then, he came with written report with signature affixed thereon. He saw the written report. On seeing the written report, it appeared that it was written by some other person and the signature only thereon was of the informant (P.W.1). When the informant (P.W.1) came with written report, he immediately started writing the case. He did not remember how long he (P.W.1) stayed at police station. He further deposed that the mobile number, which was written in the report, was not verified by him. When the informant (P.W.1) had come to lodge the case, it was 12:30 in the night. He did not remember who was the staff present in the police station at that time apart of him. The investigation of the case was handed over to SI Munendra Pal Singh (P.W.9), In-charge of Chaure Bazar outpost. The information in this regard was given to SI Munendra Pal Singh (P.W.9) by post on the instruction of S.H.O. He was posted at police station Bikapur from 2012 to 2014. He did not know when the name of the accused in this case came to light.

(10) A perusal of the chik F.I.R. (Ext. Ka. 9) reveals that the distance between the place of the incident and police station Bikapur is 12 Kms. It is significant to mention that a perusal of the chik FIR also shows that on the basis of written report (Ext. Ka.1), Case Crime No. 357 of 2014, under Sec. 363 I.P.C. was registered against unknown person.

(11) The evidence of P.W.4-Awadhesh Kumar shows that on 12/9/2014, he was posted as Naib Tehsildar, Bikapur, Faizabad. On the said date, ''panchayatnama' of the deceased ''victim X' daughter of Prem Chandra Kori, resident of Chaure Chandauli (Bhaujai-Ka-Purwa), Police Station Kotwali Bikapur, was conducted on spot between 10:30 a.m.-01:00 p.m. In the presence of ''panchan' Prem Chandra Kori, Phool Chandra, Bhagelu, Dipak and Surjeet, ''panchayatnama' (Ext. Ka.2) was written before him by SI and got it prepared with his signature. He got prepared letter to Reserve Inspector (Ext. K.3), letter to the Chief Medical Officer (Ext. Ka.4), photo lash (Ext. Ka 5), Form-13 (Ext. Ka.6) and specimen seal (Ext. Ka.7), under his handwriting and signature on the spot.

In cross-examination, P.W.4-Awadhesh Kumar had deposed that he had got the ''panchayatnama' prepared of this case. He had appointed witnesses of inquest, out of whom two persons were of the family of the deceased and rest from outside. Out of two persons in the family of the deceased, one person was the father of the deceased, namely, Prem Chandra (P.W.1) and names of others were not remembered. He took the opinion of witnesses of inquest collectively as well as separately. All of them told that death of the deceased seems to be on account of drowning in water.

(12) The investigation of the case was conducted by P.W.9-S.I Munendra Pal Singh, who, in his examination-in-chief, had deposed that when he was posted as Chowki In-charge, Chaure Bazar, Police Station Bikapur, District Faizabad, investigation of Case Crime No. 357 of 2014, under Sec. 363 I.P.C. was handed over to him against unknown persons. The copy of the chik report was supplied to him during the investigation at the place of incident through Home Guard. He started to conduct the investigation of the case from 12/9/2014. He recorded the statement of the informant (P.W.1), his wife Smt. Usha (P.W.3) and his mother Smt. Bachauna (P.W.2) and during the investigation, he recovered the dead body of the missing girl ''victim X' from ''Gadayee' (small pond). On the direction of Naib Tehsildar, ''panchayatnama' was prepared and after preparing it, the dead body was sent for post-mortem. He, thereafter, inspected the place of recovery of the dead body and recorded the statement of witness of the incident and witness of inquest Sri Surjeet Bhagelu. He also inspected the place of the incident. He prepared the site plan of the place of the incident (Ext. Ka.11) and also site plan of the recovery of the deadbody (Ext. Ka.12). He proved the sealed articles under recovery memo (Ext. Ka. 13), which were recovered from the place of the incident and kept in six different containers. He further deposed that during investigation on the basis of evidence of the witnesses, he found the involvement of Santosh Kumar Nat and Mamman alias Tej Pal alias Sonu Nat (appellants) in the incident. He deposed that after receipt of the second copy of post-mortem report in the office, after its perusal and on confirmation of committing rape and unnatural sex with the ''victim X', deleted Sec. 363 I.P.C., added Ss. 376 (1), 377, 302, 201 I.P.C. and Sec. 3/4 of POCSO Act and entry of which was made in the G.D. The further investigation of the case was done by S.H.O. Sripal Singh, who had died. He had seen him reading and writing. He further deposed that S.H.O. Sripal Singh, on perusal of the post-mortem report, found that the cause of death was due to respiratory obstruction and ante-mortem injuries and recorded in CD II. He recorded the statement of Sagar Nat, Santosh Kumar Nat, Suraj Kumar Singh, Indra Bahadur Yadav. In CD III, the search and address clues of the accused have been observed. In CD No. 4, 5 and 6, endorsement in respect of clues of address was made. In GD No. 7, endorsement of the arrest and recording of statements of accused Santosh Nat and Mamman Nat was made and during investigation, Ss. 376A and 376D I.P.C. were added.

In cross-examination, P.W.-9 Munendra Pal Singh had deposed that recovered articles were sent to laboratory for medical examination, which were not received so far. He did not record the statement of accused Indra Bahadur Yadav nor he met him. He was the first Investigating Officer in this case. He conducted the investigation of the case till 12/9/2014. He got the investigation of this case after midnight on 12/9/2014 but did not remember the time, however, it was almost 1:30 a.m. in the night. He conducted the investigation till 12/9/2014 at 21:20 hours. He conducted the investigation for less than 24 hours. The case was not registered in his presence. On 12/9/2014, the In-charge of the police station was Inspector Sripal Singh. He further deposed that during his investigation, he recorded the statement of the informant Prem Chandra (P.W.1), his wife (P.W.3) and his mother Smt. Bachauna (P.W.2). After receiving material of case, he had perused the chik F.I.R. In the written report, word ''author' is not mentioned. He deposed that he did not see at the moment who wrote Ext. Ka. 1. He denied the suggestion that written report of the said case was written by him.

P.W.9 Munendra Pal Singh, in his cross-examination, had further deposed that the case was lodged on 12/9/2014. He was not at the police station when the case was lodged as he was patrolling in the area. On the information of villagers, he went to the village. Home Guard Ashok Pandey had brought the copy of the FIR on the spot. He deposed that if any information/Tahrir has been sent by the informant (P.W.1) to the police station through post, then, he is not aware of it. He reached the spot at around 1:00 am in the night. He went alone to the village. The police force had arrived after 10-12 minutes when he reached the spot. He did not remember, who came at that time. Inspector in-Charge Sripal Singh had come to the spot and other people also came. The Inspector In-Charge had arrived only after 10-12 minutes by the government-vehicle. Sub-Inspector Rajesh Yadav, Sriprakash Singh and other police personnel were there. He saw the Chick F.I.R. on the spot and started the investigation. On the spot, informant Prem Chandra (P.W.1) and his wife Usha Devi (P.W.3) and his mother Bachauna Devi (P.W.2) were present. Other people of the village had also gathered. They started to search the missing girl. The search for the girl continued till her body was not found. The body of the girl was found in a ''Gadayee' (small pond) at 10:00 am. The informant of the case was also along with him. He did not write the written report. The Investigating Officer was changed on 12/9/14. Being a case of 302 IPC, the investigation was handed over to SHO Sripal Singh. The Investigating Officer was changed after recovery of dead-body. His transfer from Bikapur Police Station took place after 10-15 days. He did not know who became I.O. after Sripal. He did not know that the body of the girl was recovered in the presence of accused Santosh Kumar s/o Kamala Prasad and Indra Bahadur Son of Vindeshwari. He is not aware that accused Santosh Kumar s/o Kamla Prasad was the driver of a local MLA Abhay Singh. It is wrong to say that after arresting the accused Santosh and Indra Bahadur from the spot, they were released from the police station under the pressure of Abhay Singh. The pond from where the corpse was recovered, was filled with water. Immediately after the body was found, it was sent for post-mortem after ''panchnama' in the same condition. The body was not washed with water. He is not aware of the fact that on the complaint of the informant, his wife and villagers, the Investigating Officer was changed. Later on, the Investigating Officer Sripal Singh had passed away. He did not arrest the accused. He did not know who had arrested them. He is not aware that the villagers had given a complaint to the Governor. He is also not aware who had sent the sample for DNA test. He denied the suggestion that he has not done the investigation fairly and had implicated the innocent and saved the accused persons.

(13) The evidence of P.W.8 Manoj Kumar shows that on 20/9/2014, he was posted as SSI at police station Bikapur, district Faizabad. On the said date, the investigation of Case Crime No. 357 of 2014, under Ss. 376 (1), 376A, 376 D, 377, 302, 201 I.P.C. and 3/4 of the POCSO Act was conducted by his erstwhile Investigating Officer Sripal Singh and after his transfer, the investigation of the case was entrusted to him. After taking over the investigation of the case and on perusal of the post-mortem report of deceased ''victim X' as well as original ''panchayatnama', he made endorsement of the same in the case diary and also enclosed the same with case diary. During investigation, on 21/9/2014, he recorded the statement of witness of ''panchayatnama' Phoolchand s/o Ramraj resident of Bhujai Ka Purwa, Chaure Chandauli, witness Dipak Kumar s/o Rajaram, Prem Chandra s/o Ram Raj (informant P.W.1). During interrogation, the aforesaid witnesses confirmed to him the murder of the deceased ''victim X' by accused Santosh Kumar and Mamman. After that, Sub-Inspector Uday Raj Yadav took over the investigation of the case being Station In-charge.

In cross-examination, P.W.8-Manoj Kumar had deposed that on 20/9/2014, the investigation of the case was entrusted to him. Prior to him, the investigation of this case was conducted by the then Inspector-in-charge Sripal Singh. On account of the transfer of the then Inspector-in-Charge Sripal Singh to non-district, the investigation of the case was entrusted to him. From 13/9/14 to 18/9/14, the investigation was conducted by the former Investigating Officer Sripal Singh and during that time, his posting was in Bikapur police station. He was with him (Sripal Singh) occasionally during the investigation. It has been mentioned by the earlier Investigating Officer that the accused Santosh Kumar Nat and Mamman could run away to Mumbai. Accused Santosh Kumar Nat was not arrested from Mumbai. He stated that it is true that in the statement given in the Court by informant Prem Chandra (P.W.1) on oath, it is mentioned that Santosh (accused) was arrested by the police from Mumbai. He had no knowledge whether the informant or villagers had given any application against the Investigating Officer. He further stated that it is true that the arrest of accused Santosh Kumar Nat was made on 18/9/14 i.e. a week after the incident. He denied the suggestion that he also went to Mumbai to arrest the accused Santosh Kumar Nat.

P.W.8 further deposed that investigation of the case remained with him for two days. After that, the newly appointed SHO SI Shri Uday Raj Yadav (P.W.7) took over the investigation. In these two days, he was able to take the statement of witness of ''panchan' only. He was not present at the time of the recovery of the dead body. He was at the police station at that time. He could not tell in whose presence the body was recovered. He denied the suggestion that the investigation was withdrawn from him on account of some complaint. He further deposed that he could not tell when the DNA of the accused was sent for the report. During his investigation, he did not take action for DNA report. He did not remember that when the incident took place and Abhai Singh was the local MLA or not. He denied the suggestion that he is deliberately expressing ignorance about Abhay Singh was the MLA. He further deposed that he had no knowledge whether Santosh Kumar son of Kamala Prasad was the driver of MLA Abhay Singh or not. He further stated that he went to the house of the accused in the past before the investigation came to him but how long back, he did not remember. He stated that it is true that after the incident took place, he had gone to the house of the accused. After the investigation was taken over from him by the other Investigating Officer, he went a couple of times along with the second Investigating Officer. He did not remember at this time for how long he remained posted in Thana Bikapur. Accused Mamman was not arrested from the truck. He was arrested from Kudemar intersection. He was in the arrest team. He could not tell the distance of the place of arrest from the house of the accused Mamman. He denied the suggestion that during those two days' of investigation, he conducted the investigation improperly. He also denied the suggestion that for implicating the accused, he dropped the accused Santosh Kumar S/o Kamala Prasad under the pressure of MLA.

(14) Further investigation of the case was conducted by P.W.7-Uday Raj Yadav. He, in his examination-in-chief, had deposed that the in-charge of Police Station Bikapur is called Kotwal. In other words, it is Inspector. At the time of taking over the investigation of the case, he was Station Officer, Bikapur. Among the former Investigating Officers, Sripal Singh was the Inspector and other two Investigating Officers, SSI Manoj Kumar (P.W.8) and Munendra Pal Singh (P.W.9), were of SI rank police officers. Both these police officers were of his rank and were equivalent in rank to him. Till the time he remained posted at the police station, the DNA test report of this case was not received from the Forensic Science Laboratory. The DNA test report has not yet been received from the Forensic Science Laboratory on the record. Letter No. TSF 27/2013 dtd. 14/2/2014, sent by the Forensic Science Laboratory, came to his notice and after redressing the defects, the letter was sent again but the DNA report has not been received yet. If it is received, it should have been attached with the record. He stated that the local MLA was Abhay Singh at the time of the incident and there was a Samajwadi Party Government. The former Investigating Officer had called Santosh son of Kamala Prasad for interrogation and subsequently released him on finding no evidence against him. This fact was in his knowledge. Indra Bahadur Yadav was also interrogated but he was not arrested. The body of the deceased was recovered on the next day after the incident from a ''Gadayee' (small pond) located behind the house of accused Santosh. He did not know whether Santosh son Kamala Prasad was the driver of MLA Abhay Singh or not. Abhay Singh was the MLA of Samajwadi Party. He was a member of Samajwadi Party. He stated that he could not say anything about the statement of the informant (P.W.1) wherein he had stated that under the pressure of the police, the names of Santosh S/o Kamla Prasad and Indra Bahadur Yadav were dropped from this case but he did not find any evidence against them. He conducted the investigation of the case on the basis of circumstantial evidence. He did not interrogate Santosh son of Kamala Prasad and Indra Bahadur. On the basis of the case diary compiled by the former Investigating Officer, he found no evidence in the case diary against the above two persons. He further stated that he had no knowledge that Indra Bahadur Yadav was a dominant person of that village. He stated that in this case, earlier the missing report of the deceased was filed. After that, her dead body was recovered. He further deposed that according to his knowledge, the missing report was registered before the body was found. He had no knowledge after how many days copy of the FIR was given to the informant (P.W.1). He recorded the statement of the informant of this case Prem Chandra (P.W.1), the mother of the informant, namely, Mrs. Bachauna (P.W.2) and the wife of the informant, namely, Usha (P.W.3). He denied the suggestion that he had arbitrarily written the statements of Prem Chandra (P.W.1), the mother of the informant, namely, Mrs. Bachauna (P.W.2) and the wife of the informant, namely, Usha (P.W.3). He was appointed as Investigating Officer of the case after a week of the incident but did not remember the date. He further denied the suggestion that former three Investigating Officers were removed from this case under the public pressure. He stated that due to the change of offences/Sec. in the present case, the investigation of the case was taken over from the previous Investigating Officers according to the rules. He further stated that they were not removed by any order.

P.W.7 had denied the suggestion that on the basis of the complaint of the informant and villagers, the former Investigating Officers were removed. He himself had recorded the statement of the informant, his mother and his wife. Accused Mamman had told in his statement under Sec. 161 Cr.P.C. that he is doing job of a Cleaner in a truck. Both the accused were arrested by the earlier Investigating Officer. The accused in this case were in jail during the period when he did investigation. Their names came to light on the basis of evidences collected by the earlier Investigating Officers. The accused were arrested by the Investigating Officer Sripal Singh and his team. He did not remember the date on which the arrest of accused Santosh Kumar Nat was made. It was mentioned in the case diary. He did not know from where the arrest was made. He did not know about the date of arrest of accused Santosh Kumar Nat. He had not met the accused before forwarding the charge sheet. He did not talk to the accused about the incident as he had many other evidences. He denied the suggestion that there was any demonstration at the police station due to the proceedings in the investigation of this case. He had no knowledge whether the demand for a CBI inquiry was raised in relation to this incident or not. He denied the suggestion that he forwarded the charge-sheet against the accused to the Court without any evidence.

(15) Going backward, the autopsy on the dead-body of ''victim X' was conducted on 12/9/2014 at 03:50 p.m. by Dr. Devendra Kishor Sarraf (P.W. 5), who found on her person ante-mortem injuries, enumerated hereinafter :--

"Ante-mortem injuries of deceased ''victim X'

(1) Contused swelling over Rt. eye size 3 x 2.5 cm.

(2) Lacerated wound over Rt. upper lid size 0.5 x 0.5 cm muscle deep.

(3) Abrasion over Lt. upper lid 3 cm x 2.5 cm.

(4) Contusion present over both upper and lower lip C lower 1/3rd of nose.

(5) Wall of labia majora is tear at ''6' and ''10' O'clock position.

(6) Contusion present around post and lateral part of anus and 0.5 cm around anal opening.

(7) Anal wall C skin tear at 6 O'clock.

(8) Goose skin over hand and feet present."

The cause of death spelt out in the autopsy report of the deceased ''victim X' was asphyxia as a result of ante-mortem smothering.

(16) It is significant to mention that in his deposition in the trial Court, Dr. Devendra Kishor Sarraf (P.W. 5) has reiterated the said cause of death and also stated therein that on 12/9/2014, he was posted as Ophthalmologist in Sriram Hospital, Ayodhya, Faizabad. On that day, his duty was with his colleagues Dr. AK Singh and Dr. BM Maurya in P.M. House, Faizabad. On the same day, the body of deceased ''victim X' daughter of Prem Chandra Kori resident of Bhulai-Ka-Purwa, PS Bikapur, Faizabad, was brought by C.O. Rajat Singh and C.P. Mahendra Verma of Kotwali Bikapur, Faizabad at 03:45 p.m. The dead body was identified by the father of the deceased Prem Chandra (P.W.1). He started to conduct the post-mortem of the dead body of the deceased at 03:50 p.m. and completed it at 05:00 p.m. Ten forms were sent with the body. He further deposed that the age of the deceased was about 6 years; her height was 112 cms; her physique was of medium average stature; stiffness was present in the upper and lower limbs of the body; eyes and mouth were half-open; teeth were 12/12; the inner part of the mouth and the nails had become oily; and the eye membranes were congested.

Dr. Devendra Kishor Sarraf (P.W. 5), in his examination-in-chief, had further deposed that on internal examination, he found that skull was normal; brain membrane was congested; the brain was congested; the teeth were 12/12, larynx and vocal cords were normal, trachea and hyoid bone were normal; ribs in chest, breathing tube were normal; both lungs were congested; the membrane around the heart was congested; the right corner of the heart was full and the left was empty; the large blood vessel was normal; abdominal hair was normal; 150 ml pasty material was present in the stomach; pasty material and gases were present in the small intestine; faecal matter and gas were present in the large intestine; liver was congested and gallbladder was empty; pancreas was congested; both kidneys were congested; and the bladder was empty. He had deposed that the expected time of death was approximately one day and the cause of death was suffocation due to smothering.

In cross-examination, P.W.5 Dr. Devendra Kishor Sarraf had deposed that he had no knowledge with regard to test results sent in envelops 1 to 6 at the time of post-mortem. He opined that there can be a difference of 3 to 6 hours pertaining to the time of the death of the deceased. After the autopsy, he handed over the body to the police. He denied the suggestion that he had made any carelessness during the course of post-mortem.

(17) At this juncture, it would be relevant to mention here that the recovered items, samples of the deceased as well as blood samples of the accused were sent for DNA Test to the Forensic Science Laboratory, Mahanagar, Lucknow. Vide report dtd. 21/8/2019, Forensic Science Laboratory, Mahanagar, Lucknow has reported as under :-

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(18) The medical examination of convicts/appellants Santosh Kumar and Mamman alias Tejpal were conducted on 18/9/2014 at 12:15 p.m. and 12:05 p.m., respectively, at Community Health Centre, Bikapur, Faizabad by Dr. Satish Chandra, who found the following injuries on their person :-

"Injury of Santosh Kumar, s/o Ram Kumar

A black mole over right side of face about 2.5 c.m. below from the lower lid."

Injury of Mamman alias Tejpal, s/o Late Hari Ram

A black mole over right side of face about 5.5 cm below from the lateral of the Rt. eye."

(19) It is pertinent to mention that Dr. Satish Chandra was not examined. However, he stated in the injury report that there is no injury.

(20) The case was committed to the Court of Sessions in usual manner where the convicts/appellants were charged for the offence punishable under Ss. 376A, 376D, 377, 302, 201 I.P.C. and Sec. 3/4 of the Protection of Children from Sexual Offences Act, 2012. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

(21) During the trial, in all, the prosecution examined 9 witnesses viz. P.W.1-Prem Chandra, who is the father of the deceased and informant of this case, P.W.2-Smt. Bachauna, who is the grand-mother of the deceased, P.W.3-Smt. Usha, who is the mother of the deceased, P.W.4-Sri Awadhesh Kumar, in whose presence ''panchayatnama' was conducted, P.W.5-Dr. Devendra Kishor Sarraf, who conducted the post-mortem of the deceased, P.W.6-CP Sri Rajesh Kumar Pal, who had lodged the chik F.I.R. on the basis of written report of informant P.W.1-Prem Chandra and P.W.7-Uday Raj Yadav, P.W.8-Sri Manoj Kumar and P.W.9-Sri Munendra Pal Singh, who were the Investigating Officers of the case. From the side of appellants/convicts, Sri Saeed Husain was examined as D.W.1.

(22) P.W.1-Prem Chandra, in his examination-in-chief, had deposed that he had one daughter and three sons, out of whom his daughter had died in the incident. The incident is of 11/9/14. His daughter ''victim X', aged about 6 years, went from home at 6 o'clock in the evening for urinal after informing his wife Usha (P.W.3) but his daughter did not return. He searched his daughter in the village but could not find her. On the same day, he went to the police station Bikapur for giving information to the police about the incident. After getting scribed the report (5A) of the incident from a man in the village itself and putting his signature thereon, he gave that to the police station. He proved the written report (Ext. Ka.1). He further stated that on the next day of the incident, his mother and wife told him that on the day of the incident, his mother was sitting in front of Raja Pradhan's house and saw that ''X' (deceased) was going to Santosh's house with some items. The name of Santosh's father is Ram Kumar Nat. In the house of Santosh (appellant no.1), Indra Kumar Yadav, Mamman alias Sonu (appellant no.2) and Santosh Kumar (appellant no.1) were sitting and drinking alcohol. On the second day, around 9-10 a.m., the dead body of ''X' was found in the ''Gadayee' (small pond) next to the house of Santosh Nat (appellant no.1). He had full belief that Santosh Nat (appellant no.1), Mamman alias Sonu (appellant no.2) and Indra Bahadur Yadav sexually assaulted his daughter ''victim X' under intoxication, thereafter, killed her and thrown her body in a ''gadayee' (small pond). The Inspector came to the spot.

P.W.1-Prem Chandra, in his cross-examination, had deposed that he did not go to work on the day of the incident. He worked in brick slurry. He also go outside the village to work. He goes to work for a distance of 10-15 kms. On the day of the incident, he was at home. He went to the farm for about two hours. He went to the farm at around 2.30 p.m. and came back in about two hours. He came to know about the missing of his girl around 6:30 p.m. His wife and his mother told him. On getting information, first he searched around the village along with family members. He searched whole night in the village but no trace was found. Even outside the village, about 10 km distance trace was made with the help of family members. She was found around 9:30 a.m. and till then they were still searching. For lodging the report of the incident, he had gone to the Village Pradhan's house at around 8.30 a.m., where the Village Pradhan had telephoned the police station. Then, around 09:00 p.m., the police had come to village. The policemen were also co-operating in the search in the night. He further deposed that he did not go to the police station to lodge the report. The report was written in the village itself by the Inspector, whose name is not known. The report was written in front of the house of Santosh Kumar.

P.W.1 Prem Chandra was shown the said report (Ext. Ka.1), then, he stated that this report was not written in front of the house of Santosh. However, his signature was on Exhibit Ka-1. He did not remember when and where he signed it. He himself wrote Exhibit Ka-2. He wrote this application in the evening but could not tell its time. When the report was written, no one else was present there except him and it was written at his house. Before writing the report, he had inquired from family members and the villagers. Exhibit Ka-1 was sent by post to Inspector-in-Charge Kotwali Bikapur and he posted it from Chaure Bazar Post Office. He sent the same on the next day of the incident. It was sent by pasting ticket on the envelope. He had pasted ticket of Rs.100.00. He went to the police station around 17th. The Village Pradhan, his wife, his mother and 10-12 people from his village went along with him to the police station. At the police station, no paper was signed by him. His report at the police station was registered three to four days after the incident. He signed Exhibit Ka-1 after three to four days of the incident. Apart from Exhibit A-1, he had not signed on any other paper. The memo paper number 9A was written on the date of recovery of the body of his girl in the evening itself, on which his wife and he had signed. No one else had put signature thereon before him. He did not know what was written in the memo. The paper of memo was not blank but when he signed, signature of any villager was not there on the memo. He did not know Dilip Kumar Choubey. He did not even know Sangeeta Devi and Pooja Rani Patel and Sunita Devi. The memo was not written before him. He did not know who wrote that. The signature was done in the village itself. He did not read memo and was not read over to him. He did not read the Chik FIR nor was read over to him. He further deposed that the action of the police about the incident was not satisfactory.

P.W.1 had further deposed that accused Santosh and Mamman are residents of his village. The house of Santosh is about 500 meters away from his house. The house of Mamman is about 100 meters away from his house. There are 20-25 houses in his village. He met the accused in the morning of the incident. Accused Mamman used to work as a helper on the truck from one week prior to the incident. Accused Santosh Kumar did not do any work, rather he used to drink alcohol and roam here and there. His family consisted of Santosh and his sister who lived in Mumbai. Since she belonged to the village, he knew Santosh's sister. He did not know whether Santosh knew or did the work of television and electricals. There is electricity in Santosh's house. There is no electricity in his (P.W.1) house. There is no electricity in 10-12 houses in the village. The rest of the houses have electricity. Santosh was caught by the police from Mumbai. Santosh had fled away to Mumbai after the incident. The accused Santosh was caught by the police a week after the incident. The information about the arrest was received from the police. The whole village came to know that Santosh had been arrested by police from Mumbai. Santosh has three rooms in his house. A thatch was laid on the front. The accused Mamman was caught by the police after the incident from a truck. This fact was also known to the whole village. In the house of Mamman, his brother, sister-in-law and three children of his brother were there. He has no sister. Mamman's brother worked as a labourer. They also went to the house of the accused in search of the girl. The policemen had gone too. He further deposed that there were two locks put on, in Santosh Kumar's house. Neither they nor the villagers saw Santosh Kumar locking his house. Santosh had left his house in the evening on the day of the incident. In the evening, Santosh was seen by the villagers and the people of the market before prevailing darkness. It was mild cold at the time of the incident. The girl's body was found before lodging the report. Everything was written correctly in the report. It is rightly written in the report that when she did not return home, they searched a lot but no trace could be found. Apart from these accused, Santosh Kumar son Kamala and Indra Bahadur son Vindeshwari Yadav were also involved in the incident. Indra Bahadur Yadav belonged to his village. He already knew him. Indra Bahadur was an influential and powerful man in the village. He lodged the report against him and the policemen had also caught him but later on released him. His daughter did not use to go to the house of the accused. She knew all the four accused. The police did not challan Santosh son of Kamla and Indra Bahadur in this case. Santosh son of Kamla is the driver of local MLA Abhay Singh. Abhay Singh is the MLA of Samajwadi Party. He admitted the suggestion that the police did not challan Santosh son of Kamla and Indra Bahadur Yadav under the pressure of MLA. He had complained about this to the higher police officers but no action was taken. He got the copy of Chik FIR, about 10 days after the incident. Kotwal had given it, he did not remember his name. He also denied the suggestion that the police did not challan the real accused and he has given a false statement under pressure of the police.

(23) P.W.2-Bachauna, in her examination-in-chief, had deposed that the incident happened about 8 months ago at about 5:00 p.m. She was on the roadside at Raja Pradhan's door. Her grand-daughter ''victim X', aged about 6 years, was returning from the shop with ''namkeen' and ''toffey' in her hand. She called and asked ''where ''victim X' was going', then she said that Santosh uncle had asked to bring ''Namkeen' and she was going there to give it. Santosh gave Rs.10.00. She saw Santosh and Mamman alias Sonu and Bahadur at the door of Santosh. Santosh son of Kamala was also there. The name of the father of Santosh present in Court is Ram Kumar. She saw her grand-daughter ''victim X' going in the house of Santosh Nat along with Mamman. The electricity was in at the house of Santosh and T.V. was on play. When she did not come back, Santosh and Mamman took ''victim X' in the room. On the next day, the body of ''victim X' was found in a ''Gadyee' (small pond) behind the house of Santosh. Her son (P.W.1) had lodged the report of the incident. She had told all these things to the Inspector. The Inspector had come to the spot and had conducted ''panchayatnama' of the dead-body.

In cross-examination, P.W.2-Bachauna had stated that there are two persons named Santosh in her village. The name of the father of one Santosh (accused) is Ram Kumar and the name of the father of another Santosh Kumar is Kamla. In connection with this incident, the police had also caught another Santosh Kumar son of Kamla, but left him after taking bribery. In connection therewith, he had also complained to the higher officials that the police had released Santosh Kumar son of Kamla after taking bribe. It was his son who had lodged an FIR in this incident and he also complained that the police had released Santosh Kumar son of Kamla after taking bribe. Santosh son of Kamla is the driver of MLA Abhay Singh, under his pressure, the police released Santosh Kumar son of Kamla. Santosh son of Kamla was involved in this incident. Indra Bahadur Yadav son of Vindeshwari Yadav was also involved in this incident, whose name was dropped by the police after taking bribe. She had no enmity with Santosh and Mamman. On the day of the incident, she saw Santosh and Mamman at the door of Pradhan. The distance of the Pradhan's house from his house is 1-1 1/2 bigha. The house of Santosh son of Ram Kumar falls between her house and the Pradhan's house. They are not her ''pattidar'. She is Kori by caste. No one used to come and go from her house to the house of Santosh and Mamman or vice-varsa. The deceased ''victim X' was coming from near the primary school with snacks. The primary school is at a distance of about 4 bighas from her home. She saw the deceased, ''victim X', bringing snacks from there. She was sitting at the door of Pradhan when she saw Santosh Kumar son of Kamla and Indra Bahadur Yadav at the door of the Pradhan. ''victim X' was not there when Santosh s/o Kamla and Indra Bahadur Yadav were at the door of the Santosh. She had three sons. The report of this incident was lodged by her son Prem Chand (P.W.1). She had told everything to Prem Chandra (P.W.1). Her son Prem Chandra had reported the incident on the day of the incident. The report of this incident was not written by the Inspector because Inspector had taken bribe. Her son had lodged an FIR against Santosh S/o Kamla and Indra Bahadur but the Inspector did not take any action against them by taking bribe. Santosh and Mamman were caught by the police after 8-9 days and detained in this incident. In the report, which was written by his son, Santosh and Mamman were not named rather the police had implicated these persons by excluding Santosh son of Kamla and Indra Bahadur Yadav.

(24) P.W.3-Smt. Usha, in her examination-in-chief, had deposed that she had three sons and one daughter, whose name was ''victim X' aged about 6 years at the time of the incident. She did not remember the date of the incident. The day was Thursday. The incident happened almost a year ago. It was 6 o'clock in the evening. Her daughter had gone out for call of nature. She saw from her door that Santosh Nat and Mamman (accused/appellants) and Indra Bahadur and Santosh son of Kamla were drinking alcohol at their door. She had not seen ''victim X' at their door. Her mother-in-law, Bachauna (P.W.2), told that Santosh Nat (convict/appellant no.1) asked her (deceased ''victim X') to bring ''namkeen' and as such her daughter (deceased '' victim X') went to his house for giving it. Her daughter didn't come back from call of nature till 8 o'clock in the night, then, she (P.W.3) and her husband (P.W.1) went out to search her and saw that the lock was hanging on the door of Santosh (convict/appellant no.1) and all of them had run away. At 10:00 am, the body of her daughter ''victim X' (deceased) was found from a ''Gadyee' (small pond) behind the house of Santosh Nat (convict/appellant no.1). After that, her husband (P.W.1) had lodged the report of the incident. Inspector had come on spot and recorded her statement. She was confident that Santosh Nat, Santosh son of Kamla (convicts/appellants) and Indra Bahadur Yadav were involved in the murder of her daughter (deceased ''victim X').

In cross-examination, P.W.3-Usha Devi had deposed that her husband (P.W.1) works as a labourer. The father of accused Santosh is called Kamla, thereafter, she stated that she did not know the name of Santosh's father and his name might be known to his husband (P.W.1). The houses of both the persons named Santosh are at a short distance. There is no enmity between her family and accused Santosh and Mamman. Santosh is a TB patient, whose treatment is going on at Bombay, who also had a lung operation. On the seventh day of the incident, the policemen had brought Santosh from Bombay. On the third day of the incident, the policemen had arrested Mamman. There was no one in Santosh's house and one of his sister used to live at Mumbai. After the arrest of Santosh (convict/appellant no.1), his sister went to Mumbai with all the belongings of his house. Santosh and Mamman never had any dispute with her family.

P.W.3 had further deposed that Santosh (appellant no.1) had his lung operated 3-4 months before the incident. The incident was reported by her husband (P.W.1) on the day of the incident itself. The police had arrived at 9 o'clock in the night. When the police reached her village, Santosh (accused/ appellant no.1), Indra Bahadur Yadav and Santosh son of Kamla were not found. The body was found on the next day after the incident. When the body was found, Santosh son of Kamla was there and on his pointing out, the body was recovered. At that time, the police did not arrest them. Indra Bahadur and Santosh son Kamla were caught by the police and took them to the police station Bikapur. She did not know how long the policemen kept them at the police station. She further deposed that Santosh son Kamla drives the vehicle of Abhay Singh MLA and the influence of Abhay Singh is on the police station and under his influence Abhay Singh saved Santosh son of Kamla and Indra Bahadur. However, these persons were also involved in the incident. She further deposed that she was at home when her girl left the home. She had left the house on the pretext to attend the call of nature. Her mother-in-law Bachauna (P.W.2) told her that Santosh Nat had asked her daughter ''victim X' (deceased) to bring ''namkeen'. When she (P.W.3) went to the house of Santosh Nat (appellant no.1), it was locked. She went to the house of Santosh Nat at 6:30 p.m. She did not tell the Inspector that her daughter had gone to the house of Santosh Nat. Santosh son of Kamla and Indra Bahadur Yadav are people of bad character. When the policemen released Santosh son of Kamla and Indra Bahadur Yadav, then, they made demonstration against the police personnel. She deposed that main accused Santosh son of Kamla and Indra Bahadur were released under the pressure of Abhay Singh after taking bribe. Mamman and Santosh (accused/appellants) are poor men. She denied the suggestion that these people have falsely been implicated because they are poor.

(25) D.W.1-Syed Hussain, in his examination-in-chief, had deposed that he knew accused Mamman S/o Hariram R/o Chaurai Chandauli police station Bikapur Faizabad from 2-3 years ahead of the alleged incident. He used to work as a cleaner on his truck and used to stay with him on the truck. When he and Mamman (accused) were on the way to Badlapur near Jaunpur by his truck, then, police of Bikapur police station had stopped his truck, arrested Mamman at Bikapur and took him. At that time, he was going after loading sugar from Jarwal Mill, Bahraich to Badlapur Panjiri factory. Later on he came to know that the police had implicated him (convict/appellant no.2-Mamman) in some case.

D.W.1 had identified Mamman in the Court and in cross-examination had deposed that Mamman is also called Sonu and some people also called him as Tejpal Nat. He did not know up to what standard he had studied. Prior to 10 days of the incident, Mamman had gone with him on his truck. Mamman used to go home occasionally and came back after taking a bath. He is close to, and has helping attitude towards Mamman. He denied the suggestion that being close to Mamman and in order to save him, he had falsely deposed.

(26) In the statement recorded under Sec. 313 Cr.P.C., the convicts/appellants had denied the allegations levelled against them and had stated that the Investigating Officer had falsely implicated them in the case in order to save the real culprits under the influence of local MLA.

(27) The learned trial Court believed the evidence of P.W.1-Prem Chandra, P.W.2-Smt. Bachauna, Smt. Usha (P.W.3) and perused the recovery memos as well as the D.N.A. test report and convicted and sentenced the accused/appellants Santosh Kumar Nat and Mamman alias Sonu alias Tejpal in the manner stated in paragraph-2, hereinabove.

(28) Hence the instant reference and appeal.

(C) CONVICTS/APPELLANTS ARGUMENTS

(29) Shri Amar Singh, learned Amicus Curiae appearing on behalf of convict/appellant no.1-Santosh Kumar Nat has argued :-

I. that the whole case of the prosecution is based on circumstantial evidence. There is no motive to convict/appellant to commit murder of deceased ''victim X'. Complete chain of evidence is missing so as to indicate that convict/appellant is the only person who has committed the crime.

II. that the First Information Report was lodged by P.W.1-Sri Prem Chandra, who is the father of the deceased/victim ''X', against unknown persons but the police had falsely implicated the convict/appellant in the case saving the real culprits.

III. that medical evidence is not compatible with oral evidence.

IV. that the Investigating Officer Sripal Singh was not examined and the investigation conducted by other Investigating Officers of the case, namely, P.W.7-Sri Uday Raj Yadav, P.W.8-Manoj Kumar and P.W.9-S.I. Munendra Pal Singh is defective one.

V. that the age of the deceased ''victim X' at the time of incident was 6 years. The medical evidence shows that the deceased ''victim X' died due to asphyxia as a result of smothering and definite opinion with regards to commission of rape has not been given by P.W.5-Dr. Devendra Kishor Sarraf who conducted the postmortem.

VI. that none of the witnesses of fact viz. P.W.1-Sri Prem Chandra, P.W.2-Smt. Bachauna and P.W.3-Smt. Usha had seen the incident. They have not been able to say that the convict/appellant caused the death of deceased or he committed rape.

VII. that P.W.1-Sri Prem Chandra, P.W.2-Smt. Bachauna and P.W.3-Smt. Usha are interested and partisan witnesses as P.W.1-Sri Prem Chandra and P.W.3-Smt. Usha are the father and mother, respectively, of the deceased ''X', whereas P.W.2-Smt. Bachauna is the grand-mother of the deceased ''X'. Hence, their testimony cannot be relied upon nor conviction can be based on their testimony.

VIII. that there are major contradictions in the statements of P.W.1-Sri Prem Chandra, P.W.2-Smt. Bachauna and P.W.3-Smt. Usha, hence the conviction and sentence of the convict/appellant on the basis of their testimonies cannot be sustainable.

IX. that the learned trial court has committed error in concluding that the case of the convict/appellant is covered under the ''rarest of rare cases' and, therefore, the death sentence awarded is not legally justified.

Shri Sanjay Kumar Yadav, learned counsel appearing on behalf of convict/appellant no.2- Mamman alias Sonu alias Tejpal has adopted the arguments of learned Counsel for the convict/ appellant no.1 and in addition, he only argued that D.N.A. collected from the blood of convict/appellant no.2 was also sent for DNA test but the D.N.A. collected from the blood of convict/appellant no.2 was not matched with the sample collected from the deceased ''victim X' as is evident from the FSL report, hence it cannot be said that convict/appellant no.2 was involved in committing rape, carnal intercourse against the order of nature (unnatural offence) and murdered the deceased ''victim x'. Thus, the instant appeal filed on behalf of the convict/appellant no.2 is liable to be allowed.

(D) STATE ARGUMENTS

(30) Shri Vimal Srivastava, learned Government Advocate assisted by Shri Pankaj Tiwari, learned Additional Government Advocate for the State has argued that there was sufficient evidence to prove the charge against the convicts/appellants. The learned trial Court finding the evidence adduced by the prosecution reliable and trustworthy held the convicts/appellants guilty of committing rape and murder of six years old daughter of the informant P.W.1 Sri Prem Chandra and awarded the death sentence. The death sentence awarded by the learned trial Court is absolutely justified. He further argued that DNA test report has completely supported the prosecution case.

(E) FINDINGS/OBSERVATIONS

(31) We have examined the submissions advanced by Shri Amar Singh, learned Amicus Curiae for the convict/appellant no.1-Santosh Kumar Nat, Shri Sanjay Kumar Yadav, learned counsel for the convict/appellant no.2- Mamman alias Sonu alias Tejpal and Shri Vimal Srivastava, learned Government Advocate assisted by Shri Pankaj Tiwari, learned A.G.A. for the State. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellants recorded under Sec. 313, Cr. P.C.; statement of D.W.1, defense witness; and the impugned judgment.

(32) It would become manifest from the above that the learned trial Court has based the conviction of the appellants on the testimonies of P.W.1-Prem Chandra, P.W.2-Smt. Bachauna, and P.W.3-Smt. Usha as well as the report of DNA test.

(33) We would first like to deal with the testimony of P.W.1-Prem Chandra. His evidence shows that on the date of the incident i.e. on 11/9/2014, his daughter ''victim X' (deceased), aged about six years, went from home at 06:00 O'clock in the evening for attending the call of nature after telling the same to her mother Usha (P.W.3) but as his daughter ''victim X' did not return, his wife Usha (P.W.3) and his mother Smt. Bachauna (P.W.2) told him about the disappearance of his daughter ''victim X'. He and family members searched his daughter ''victim X' but could not trace out. After that, he had gone to the house of Village Pradhan at around 8:30 p.m. and the Village Pradhan had informed the incident to the police station Bikapur telephonically. On receipt of the message, the police reached the village at around 09:00 p.m. and also searched his daughter but could not trace out. He proved the written report (Ext. Ka.1). On the next day of the incident, his mother Smt. Bachauna (P.W.2) and his wife Smt. Usha (P.W.3) told him that on the day of the incident, his mother Smt. Bachauna (P.W.2) was sitting in front of door of Raja Pradhan and saw that ''victim X' (deceased) was going to the house of Santosh (appellant no.1) with some items in her hand and in the house of Santosh (appellant no.1), Indra Kumar Yadav, Mamman alias Sonu (appellant no.2) and Santosh Kumar (appellant no.1) were sitting and drinking liquor. On the second day of the incident, at around 09-10 a.m., the dead body of his daughter ''victim X' was found in the ''gadyee' (small pond), which was next to the house of Santosh Nat (appellant no.1).

(34) P.W.2-Bachauna, who is the mother of P.W.1-Prem Chandra and grand-mother of deceased ''victim X', has supported the testimony of informant P.W.1-Prem Chandra and stated that on the day of the incident, she was on the side of the road in front of Raja Pradhan's door. Her grand-daughter ''victim X' aged about six years was returning from shop after bringing ''namkin' and ''toffey'. She called her grand-daughter '' victim X' and asked her where she went, then, she (''victim X') replied that Santosh uncle (appellant no.1) had asked to bring ''namkin', hence she (''victim X') went to give him (appellant no.1). Santosh (appellant no.1) gave Rs.10.00 to her grand-daughter (''victim X') for bringing the aforesaid articles. She further deposed that she saw Santosh (appellant no.1), Mamman alias Sonu (appellant no.2) and Bahadur at the door of Santosh (appellant no.1). She had deposed that she told the whole incident to her son (P.W.1-Prem Chandra).

(35) P.W.3-Smt. Usha, who is the mother of the deceased ''victim X', wife of the informant P.W.1-Prem Chandra and daughter-in-law of P.W.2-Bachauna, has also supported the testimonies of P.W.1-Prem Chandra and P.W.2-Bachauna and had stated before the trial Court that on the date of the incident, her daughter ''victim X' aged about six years went to attend call of nature outside the village after telling the same to her at 06.00 p.m. She saw from her door that Santosh Nat (appellant no.1), Mamman (appellant no.2), Indra Bahabar and Santosh son of Kamla were drinking liquor at the door of Santosh. Her mother-in-law Bachanua (P.W.2) had told her that appellant no.1-Santosh Nat had asked her daughter to bring ''namkeen', due to which, her daughter went to the house of Santosh (appellant no.1) to give the same. She deposed that when her daughter did not return till 08:00 p.m., then, she and her husband went to search, then, she saw that door of Santosh (appellant no.1) was locked and all of them fled away from there.

(36) We have gone through the evidence of P.W.1-Prem Chandra, P.W.2-Bachauna and P.W.3-Usha and have no hesitation in observing that their testimonies are wholly credible and reliable. It is true that there is no evidence of any witness who might have seen the convicts/appellants committing rape and causing death of the daughter of the informant Prem Chandra (P.W.1) and the prosecution case is based on circumstantial evidence of "last seen together" and P.W.2-Bachauna has been examined to prove this fact. The statement of PW-2-Bachauna is significant as an evidence of the circumstance of last seen. The last seen evidence is very important circumstantial evidence and if proved and found trustworthy, it can singularly lead to the inference of guilt.

(37) In State of Rajasthan v Kheraj Ram : (2003) 8 SCC 224, Vilas Pandurang Patil v State of Maharashtra: (2004) 6 SCC 158, Arun Bhanudas Pawar v State of Maharashtra: 2008 (61) ACC 32 (SC), Vithal Eknath Adlinge v State of Maharashtra : AIR 2009 SC 2067 and Vijay Kumar v State of Rajasthan : (2014) 3 SCC 412, the Apex Court has laid down that circumstantial evidence, in order to be relied on, must satisfy the following tests :

"1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.

3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.

4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence in other words, the circumstances should exclude every possible hypothesis except the one to be proved."

(38) In Bhimsingh v State of Uttarakhand : (2015) 4 SCC 281, the Apex Court has held that when the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused in entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. But in assessing the evidence, imaginary possibilities have no place. The court considers ordinary human probabilities.

(39) In Rohtas Kumar v State of Haryana : 2013 (82) ACC 401 (SC) and Prithipal Singh v State of Punjab, (2012) 1 SCC 10, the Apex Court has held that the doctrine of "last seen together" shifts the burden of proof on the accused requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against him.

(40) Further, in Ashok v State of Maharashtra : (2015) 4 SCC 393, it was explained by the Apex Court that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with the deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus would have burden of proof as per Sec. 106 of the Evidence Act. But last seen together itself is not conclusive proof but along with other circumstances surrounding the incident like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to a presumption of guilt of accused.

(41) In State of Goa v Pandurang Mohite : AIR 2009 SC 1066, State of UP v Satish : 2005 (3) SCC 114 and Sardar Khan v State of Karnataka : (2004) 2 SCC 442, the Apex Court has observed that circumstances of "last seen together" do not by themselves and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. The time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.

(42) In Ravi v State of Karnataka : AIR 2018 SC 2744, reversing the conviction based on "last seen together" where there was a time gap of four days between last seen and recovery of dead body and as per postmortem report, the death must have occurred 30 hours ago, the Apex Court held that the time gap was considerably large and no corroboration was forthcoming, and therefore, in absence of any other circumstance which could connect the accused with crime, reasonable doubt as to involvement of accused is created and in such situation, the burden would not shift under sec. 106 of the Evidence Act. Following the judgments in Mohibur Rahman vs State of Assam : (2002) 6 SCC 715 and Malleshappa vs State of Karnataka : (2007) 13 SCC 399, the Apex Court held as under:

"Last seen together' is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time lag is considerably large,....., it would be safer for the court to look for corroboration."

(43) In the instant case, P.W.2-Bachauna is the grand-mother of the deceased ''victim X'. She deposed before the trial Court that when she was at the side of the road in front of Raja Pradhan's door, she saw her grand-daughter ''victim X' going towards the house of appellant no.1-Santosh with ''namkeen' and ''toffey'. Therefore, the presence of P.W.2-Bachauna is very natural at the time of last seen. On the next date of the incident, dead body of the deceased ''victim X' was recovered from the ''gadyee' (small pond) which situates close to the house of appellant no.1-Santosh and door of appellant No.1-Santosh was locked. It also comes out in the evidence of P.W.1-Prem Chandra that Santosh (appellant no.1) was seen by the villagers and the people of the market before it became dark. Seemingly, there is no delay or time-gap between last seen and the discovery of the dead-body.

(44) It transpires from the record that there was no enmity between the appellants and their family members. There is no reason to even think that P.W.2-Bachauna would give false evidence. Therefore, she has been rightly relied on by the learned trial Court.

(45) The evidence of last seen is further corroborated by medical evidence which shows that after postmortem of the deceased ''X', six items i.e. (1) Buccal swab with smear; (2) Urethral swab with smear; (3) Anal swab with smear; (4) vaginal swab with smear; (5) perineal swab with smear; (6) nails of ''victim X', were handed over to concerned constable. The aforesaid items were sent for D.N.A Test. As per the report of D.N.A. test dtd. 21/8/2019, the D.N.A. collected from the blood of appellant no.1-Santosh Nat was matching with the samples collected from the deceased ''victim X' and there was in perfect equality of the D.N.A of appellant no.1-Santosh Nat with the samples collected from the deceased ''victim X' and also male special allele were present in vaginal slide swab of the deceased ''victim X' but D.N.A. collected from the blood of convict/appellant no.2-Mamman was not matched with the samples collected from the deceased ''victim X'. It is also clear from the postmortem that abrasion and contusion were also there on her upper lid and right eye; right upper lid was lacerated; both upper and lower lid and lower 1/3 of nose were contused; wall of lebia majora was teared; around post and lateral part of anus around anal opening was contused; anal wall with skin was teared; and goose skin over hands and feet was present.

(46) It is strange that despite ample evidence of sexual assault and rape, P.W.5-Dr. Devendra Kishore Sarraf had not given specific opinion on rape. The fact that her anal wall with skin was teared at 6 O'clock; around post and lateral part of anus and 0.5 c.m. around anal opening were contused; there was abrasion and other marks of injury on her body, amply goes to show that rape was committed on her. The DNA report also supports this as rightly concluded by the learned trial court. P.W.5-Dr. Devendra Kishor Sarraf had stated that the deceased died out of asphyxia as a result ante-mortem smothering.

(47) The DNA profile of material item-12 Urethral Slide Swab, item-13 perineal slide swab and item-16 Anal Slide Swab were found same of convict/appellant no.1-Santosh Nat. In the DNA profile of material item-11 Vaginal Slide Swab, male special Allele were found. It is true that the samples of appellants were only sent for D.N.A. test. On that basis, the learned trial court has rightly concluded that on comparison of the said items of the victim ''X' and appellants, the DNA of the appellant no.1-Santosh was found matched and also human smear was present, which itself establishes the involvement of the convict/appellant no.2 in the crime also. After a close scrutiny of the evidence given by P.W.1, P.W.2 and PW-3 and medical evidence, the learned trial Court has rightly concluded that the appellants committed rape on the victim and caused her death by closing her mouth or by throttling which resulted in asphyxia. It was also noted down by the learned trial court that after the incident, the appellants were not found present in the village.

(48) Once it is established that it was the appellant no.1-Santosh, who asked deceased ''victim X' to bring ''namkeen' and appellant no.2-Mamman was also present in the house of the appellant no.1-Santosh when the deceased brought ''namkeen', it was on the appellants to explain what happened thereafter. In view of Sec. 106 of the Evidence Act, the burden was on the convicts/ appellants to explain how her private parts were contused and why such injuries were found on her body which could not have been caused except by way of sexual assault and in the course of commission of rape on her. In such cases, the provisions of POCSO Act and the Evidence Act, both require the appellants to show that they were innocent and did not commit rape. The learned trial Court has also rightly concluded that the nature of crime is such that if somebody would have seen the appellants committing it, such incident could not have taken place. The appellants had alleged that they were falsely implicated, but, there appears to be no reason for their false implication nor there is any reason why the people of that locality would give evidence about their drinking habit and perverted behavior. Had it been so as alleged by appellants, any of the villagers would definitely come to adduce evidence in support of the appellants. We find that there is no force in the argument of the appellants regarding their false implication. If read in conjunction with the statement of last seen given by PW-2 Bachauna, medical evidence and drinking habit of the appellants conclusively indicate the hypothesis that it was they and they only, who committed rape, carnal intercourse against the order of nature and murder of the deceased.

(49) In view of the above discussion, we find that the conclusion of the learned trial court that the prosecution has successfully established that the convicts/appellants committed rape, carnal intercourse against the order of nature (unnatural offence) and murder of the victim is based on unimpeachable evidence of ''last seen' supported by medical and FSL report and the conduct of the appellants themselves prior to the incident and soon after the incident. The conviction of convicts/appellants for the offence under Ss. 302, 376A, 376D, 377 and 201 IPC is legal and justified.

(50) Now, the question is whether the case is covered under the "rarest of the rare case" and the death sentence to the appellants is justified.

(51) In Machi Singh vs. State of Punjab (1983) 3 SCC 470, the Apex Court has held that

"1. When the murder is committed in an extremely brutal, grotesque diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

2. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.

3. When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them or, make them with a view to reverse past injustices and in order to restore the social balance.

4. In cases of ''bride burning' and what are known as ''dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

5. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

6. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age or infirmity, (c) a person vis-a-vis whom the murderer is in a position of domination or trust, (d) a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similarly reasons other than personal reasons."

(52) In Ravji vs. State of Rajasthan : (1996) 2 SCC 175, where the Apex Court held that it is only characteristics relating to crime, and not to criminal, which are relevant for sentencing. The Apex Court observed as follows :-

"The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the attrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ''respond to the society's cry to justice against the criminal'."

(53) In Swamy Shraddananda (2) vs. State of Karnataka: (2008) 13 SCC 767, the Apex Court observed:

"The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court is giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the criminal justice system."

(54) In Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353, a case concerning the rape and murder of a 14 years old girl, the Apex Court directed the appellant therein to serve a minimum of 35 years in jail without remission.

(55) In Selvam v. State : (2014) 12 SCC 274, the Apex Court imposed a sentence of 30 years in jail without remission in a case concerning the rape of a 9 year old girl.

(56) In Tattu Lodhi v. State of MP, (2016) 9 SCC 675, where the accused was found guilty of committing the murder of a minor girl aged 7 years, the Apex Court imposed the sentence of imprisonment for life with a direction not to release the accused from prison till he completes the period of 25 years of imprisonment.

(57) In Sachin Kumar Singhraha v State of MP : (2019) 8 SCC 371, where the accused was sentenced capital punishment for the offence of rape and murder of 5 year girl, the Apex Court converted the sentence into life imprisonment for 25 years without remission and has observed:

"Life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime."

(58) Recently, the Apex Court in the case of Mohd. Firoz vs. State of Madhya Pradesh (Criminal Appeal No. 612 of 2019, decided on 19/4/2022) has commuted the death sentence imposed on man for rape and murder of 4 year old girl to life imprisonment. Para-43 of the aforesaid order dtd. 19/4/2022 reads as under :-

"43. Considering the above, we, while affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Sec. 302 IPC. Since, Sec. 376A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of appellant's natural life would have been an appropriate sentence, however, we are reminded of what Oscar Wilde has said - "The only difference between the saint and the sinner is that every saint has a past and every sinner has a future". One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under sec. 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently."

(59) On due consideration, we find that the aggravating circumstances in this case are that the convicts appellants and deceased ''victim X' were residing in same village and the deceased ''victim X' was only 6 years of age and convicts/appellants committed rape, carnal intercourse against the order of nature (unnatural offence) on her and murdered her. The mitigating factor is that the appellants were in the habit of taking liquor and the whole case is based on circumstantial evidence.

(60) In the facts and circumstances of this case and on the basis of the law discussed above, we are of the view that the learned trial court was not justified in awarding death sentence under Sec. 302 I.P.C. and the sentence of life imprisonment could have been sufficient in the circumstances of the case. Hence, the conviction under Ss. 376A, 376D, 377 and 201 I.P.C. is upheld and award of death sentence under Sec. 302 I.P.C. is altered to imprisonment for whole life without remission.

(F) CONCLUSION

(A) Capital Case No. 01 of 2019

While affirming the conviction and sentence of the appellants for the offence punishable under Ss. 376A, 376D, 377 and 201 of I.P.C., and the conviction of the appellants for the offence punishable under Sec. 302 IPC, we set-aside the 'sentence of death' awarded to the convicts/appellants by the trial Court by means of impugned judgment and order dtd. 16/11/2019 and direct that for the murder committed by the convicts/appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, they are sentenced to life imprisonment for the whole span of their natural life without remission instead of death sentence.

Appellants Santosh Kumar Nat and Mamman alias Sonu alias Tejpal are in jail and shall serve out their sentence.

Subject to this alteration in the sentence, Capital Case/ Reference No. 1 of 2019 is dismissed.

(B) Criminal Appeal No. 2322 of 2019 :-

The criminal appeal is partly allowed. Although we maintain the conviction and sentence of appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, for the offence punishable under Ss. 376A, 376D, 377 and 201 of I.P.C. and their conviction for the offence punishable under Sec. 302 I.P.C but we set-aside their sentence of death on the latter count and instead sentence them to imprisonment for life for the whole span of their natural life without remission.

Appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, are in jail and shall serve out their sentence.

(61) Before we part with the case, we must candidly express our unreserved and uninhibited appreciation for the distinguished assistance rendered by Shri Amar Singh, Amicus Curiae for the appellant no.1-Santosh Kumar Nat in the instant appeal, therefore, we deem it appropriate to direct for payment to Shri Amar Singh, learned Amicus Curiae for his valuable assistance as per Rules of the Court.

(62) Let Shri Amar Singh, learned Amicus Curiae be paid remuneration as per Rules of the Court within a month.

(63) Office is directed to send a certified copy of this judgment along with lower court record to the court concerned for information and compliance.