A.M. DHAVALE, J.

1. In Special (POCSO) Case No. 3 of 2016, accused nos. 1 & 2 were convicted for kidnapping a girl, aged four years for the purpose of subjecting her to illicit intercourse, for committing gang rape and for committing unnatural intercourse and thereafter committing her murder by gagging her mouth by stuffing raw cotton and for causing disappearance of evidence all acts committed in furtherance of common intention of them and sentenced them to various terms as follows.      

2. They are sentenced to capital punishment for committing murder punishable under Section 302 r/w Sec. 34 of Indian Penal Code. Hence, the ld. Addl. Sessions Judge, Hingoli has made reference under Section 366 Cr.P.C. for confirmation of sentence. Whereas the aggrieved accused have filed appeal against their convictions and sentences. Along with the two accused, their parents and brother of accused no.1, total five in number were also prosecuted, but they were acquitted. Accused nos.1 and 2 were also prosecuted for offences under Sections 3 and 4 of Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act' for brevity) in the alternative to the charge u/s 376 (2)(f), (i) and 377 of IPC. The judgment is delivered by Special Judge and Additional Sessions Judge, Hingoli (Shri. M. P. Divate) on 7.4.2017.

3. The facts relevant for deciding these proceedings may be stated as follows:

The unfortunate victim Siddhi was aged four years and three months. She was daughter of P.W.1 Sambhaji, residing at Waranga (Masai), Taluka Kalamnuri, District Hingoli. Accused no.1 Bhagwat Kshirsagar and accused no.2 Rahul Kshirsagar are neighbours of P.W.1 Sambhaji and their houses are situated in front of house of P.W.1 Sambhaji. On 7.1.2016, at about 12.00 noon, Siddhi returned from her play school. She took her lunch and she was playing with her sister Riddhi aged two years in front of her house. Her father's step mother P.W.6 Gayabai was sitting in front of her house. At about 12.30 to 1.00 p.m., accused no.1 Bhagwat and accused no.2 Rahul (appellants) came there and offered to provide chocolates to Siddhi. Siddhi being unaware about evil intention of accused nos.1 and 2, she followed them calling them as 'bhaiyabhaiya'. They took her along with them to a shop of PW8 Shaikh Bismillah. Thereafter, she did not return. P.W.6 Gayabai started searching for Siddhi. At 3.30 p.m., one Masarao made a phone call and informed to PW1 Sambhaji who was out station for work that Siddhi was missing. PW1 Sambhaji returned home at 4:30 p.m. PW6 Gayabai told him that sometime after 12.00 noon, both the accused had taken away Siddhi towards a shop for providing chocolates and since then she was missing. Then, P.W.1 Sambhaji and his relatives and villagers searched for Siddhi and as she was not found, Sambhaji reached Kalamnuri Police Station at 6.30 p.m. and reported about missing of Siddhi. The police did not record the report but came along with P.W.1 Sambhaji to the village and took both the accused to the Police Station. Then Police Inspector with other staff came to the village for taking search. They inspected one house at 9.45 p.m., which is claimed to be of accused no.3 Parbati (father of accused no.1 Bhagwat). They found Siddhi in dead condition kept in one white bag of fertilizer with gagging of her mouth by stuffing of raw cotton in her mouth. There were blood stains on her clothes and there were injuries on her vagina and anus sh