JUDGMENT :

SANJAY PARIHAR, J.

01. The appellant stands convicted by Sessions Judge, Bhaderwah, vide judgment dated 18.11.2015 “the trial Court” for offences punishable under Sections 302/363 RPC in FIR No. 98/2013 of Police Station Bhaderwah, and has been sentenced to capital punishment along with ancillary sentences. The prosecution case, in brief, is that on 03.07.2013 at about 6:00 PM, the minor daughter of PW-Rakesh Kumar, a student of 5th Class, went to a nearby Tourism Canteen to fetch Kurkure but did not return home. Upon search, PW-Rakesh Kumar reached the canteen where PW- Mohd. Sharif, the shopkeeper, allegedly informed him that the appellant had purchased Kurkure and a cold drink for the child and had taken her along despite being told to send her home. The complainant thereafter lodged a written report on 04.07.2013 alleging kidnapping. Despite search efforts, the child could not be traced until 13.07.2013, when the police received information regarding a dead body lying behind bushes near Himant Kach Nallah. The body was recovered in a decomposed state and identified as that of the missing child by PW-Jaswant Singh, her grandfather.

02. According to the prosecution, the body had undergone advanced decomposition. After recovery, the appellant was arrested from Nalti Bhaderwah and allegedly admitted to the commission of the offence during interrogation. Upon completion of investigation, charge-sheet under Sections 363/302 RPC was filed. It was alleged that on 03.07.2013, the appellant enticed the child, took her to a secluded place, sexually assaulted her, strangulated her to death, and disposed of the body in bushes. The post-mortem report noted that the lower genital region was eaten by maggots due to decomposition. Upon receipt of the FSL report, the medical officer opined that the cause of death was manual strangulation, with time since death estimated between one to two weeks.

03. The appellant, when charged, denied the allegations and claimed false implication, asserting that the complainant bore animosity due to a land dispute and had fabricated the case to exert pressure. He maintained that he had participated in the search for the missing child and had no role in the incident.

04. The prosecution relied primarily on the testimonies of the father, mother, and grandfather of the deceased, and PW-Mohd. Sharif as the “last seen” witness. The trial Court, upon appreciation of evidence, held that the appellant was last seen with the deceased on the evening of 03.07.2013 purchasing Kurkure and cold drink for her and taking her towards bushes near the Nallah. The decomposed body was recovered on 13.07.2013. The Court found that the appellant had absconded and had not offered a satisfactory explanation regarding his conduct. Though the trial Court observed that sexual assault could not be conclusively proved due to decomposition of the body, it inferred intention to commit sexual assault from the surrounding circumstances and held the appellant guilty of kidnapping and murder. Considering the brutality of the act and the tender age of the victim, capital punishment was imposed.

05. Learned counsel for the appellant, however, contended that the prosecution witnesses were close relatives and not eyewitnesses to the occurrence. Material contradictions were highlighted: the father stated that the child had gone to purchase Kurkure, whereas the mother stated she had gone to collect empty plastic bottles. The grandfather admitted he had not seen the appellant with the deceased. It was argued that the last seen theory was unreliable, particularly as PW-Mohd. Sharif’s statement was recorded after twenty two (22) days, and he himself admitted uncertainty regarding the identity of the child until shown photographs. Other employees present at the canteen were not examined and there was no independent corroboration.

06. Further, discrepancies were pointed out regarding the place and condition of recovery of the body. One witness state