Dr. S. Muralidhar, J.

1. By the judgment dated 14th January 2014 in SC 14 of 2013, the Additional Sessions Judge (ASJ), Special Fast Tract Court convicted Bharat Singh for the offence under Sections 376 (2) (f) and 302 of the Indian Penal Code (IPC) while acquitting co-accused Sanjay and Arvind for the offence under Section 201 IPC. By the consequent order on sentence dated 15th January 2013, the learned ASJ sentenced the accused Bharat Singh to rigorous imprisonment for life with a fine of Rs.50,000 for the offence under Section 376 (2) (f) IPC and in default of payment of fine, to undergo further imprisonment for a period of one year, and to death for the offence under Section 302 IPC with fine of Rs.50,000.

2. The State has sought confirmation of the death sentence through Death Sentence Reference No. 1 of 2013. The accused has filed Criminal Appeal No. 509 of 2013 challenging the judgment dated 14th January 2013 and the order on sentence dated 15th January 2013.

The prosecution case

3. The prosecution case is that Mr. Mohd. Anwar (PW-3) was resident of House No. 280, House of Sultan Master, Gali No.1, near Hanuman Mandir, Kapashera, Delhi. He had a daughter, aged about 3 years, who has been referred to as ‘S’ in the trial Court judgment. She is referred to as such in the present judgment as well. ‘S’ went missing since the evening of 9th April 2011 and this was brought to the notice of PW-3 by his wife Majida Khatoon (PW-11). PW-3 presumed that ‘S’ had gone to the house of her grandparents. ‘S’ was wearing a dark brown skirt top and red bangles in her hands.

4. When they could not trace her, at around 12 midnight, PW-3 went to police station Kapashera and lodged a complaint (Ex.PW-3/A). The police asked PW-3 to come to the police station at around 6 am to inform them whether S’ had been traced. While PW-3 and the police were still searching for ‘S’, in the morning of 10th April 2011 ASI Dilbag Singh (PW-33) received Daily Diary (‘DD’) No.16A in relation to a dead body of a minor girl aged about 2 to 3 years lying near Gupta Farm near Bijwasan Road. Meanwhile Aaisha Khatoon (PW-17), aunt of PW-3, on being informed by her son Mustkeen (PW-4), picked up ‘S’s dead body which was lying on the Bijwasan Road near a farm house at about 11.40 am. PW-17 thought ‘S’ was still alive and brought her to the house of PW-3.

5. Meanwhile, when PW-33 went to the Gupta Farm House on receipt of DD No. 16A, he went there along with SI Rajender Singh (PW-37) and Constable Vinod (PW-29). They could not trace out any dead body there. However, PW-37 found blood stains outside the Shivraj Gupta Farm House on the lower portion of the bark of bushes and small plants. He found some blood stains inside the farm house near the railing. PW 37 also found one blood stained skirt at a distance of 70 to 80 yards from the previous spot. He found one white colour piece of cloth stained with something like blood near the northern side wall of the farm house. One pair of slippers (adult size) was found near the spot. Meanwhile, PW 37 got information that the dead body of ‘S’ had been taken to the house of PW-3. He received information in the meanwhile that the crime team had reached the spot.

6. The spot was photographed (Ex.PW-5/A-1 to Ex.PW5/A-7). At the house of PW-3, the dead body of ‘S’ was photographed (Ex.PW5/A-8 to Ex.PW5/A-13). The dead body of ‘S’ was sent to the mortuary of DDU Hospital through Constable Vinod.Ex.PW-20/A is the post-mortem report. The autopsy started at 11.30 am on 11th April 2011 and ended at 12:30 pm.

7. The post-mortem report noted the external injuries as under:

“1. Multiple scratches and nail marks present on the face, bilateral arms and lower abdomen and thighs with reddish brown in colour.

2. Multiple bruises of different shape and size present on the both upper and lower limbs, back, medial aspect thigh, left inguinal region and mons pubis with reddish brown in colour.

3. The vagina and anus extensively dilated and