A judgement dated 9.5.2011, passed by the Sessions Judge, Mainpuri convicting the appellant to death sentence under section 302 I.P.C and rigorous imprisonment for 12 years under section 376( 2) ( f) I.P.C and a fine of Rs. 25,000/, and in default of payment of fine, one year additional sentence, has been challenged by means of this capital appeal, preferred by the appellant. A reference under section 366 Cr.P.C for confirming the death sentence has also been sent by the trial court. The co-accused Awadhesh was acquitted by the same judgement, under sections 376 and 302/34 I.P.C, against which acquittal a government appeal has also been preferred by the State. But the said government appeal has not yet been admitted nor has any notice been issued to the accused-respondent Awadhesh.

2. The prosecution case was that Sangeeta aged about 10 years and her younger sister Vineeta aged about 8 years were grazing their goats and bullocks in their field on 15.4.2002. As their goats had strayed into the field of appellant Nem Singh, the appellant and the co-accused Awadhesh strangulated her with an Angauchha. When Sangeeta did not return in the night, then her father Ram Autar Singh made an extensive search for her. In the morning Vineeta fearfully disclosed that the appellant Nem Singh and the co-accused Awadhesh had beaten Sangeeta in their field at about 5 p.m. because her goats had entered into their wheat field. They chased Vineeta away along with the goats. The co-villagers Virendra Singh and Ashok Kumar had seen Sangeeta along with the appellant Nem Singh and the co-accused Awadhesh in the field. Her dead body was lying in the field.

3. The report of this incident was lodged by PW-1, Om Prakash, the uncle of the deceased at the police station Onchha on 16.4.2002 at 3.30 P.M and a case was registered under section 302 I.P.C at crime No. 96 of 2002 at the said police station by PW-5 HC Sudhir Kumar, who made the necessary G.D. Entry.

4. PW-4 S.O Swami Dayal in whose presence the FIR was lodged started the investigation of the case. He visited the village Antupur, where the incident had taken place. The corpse of the deceased was lying in the wheat field. After conducting the inquest, he sent the dead body for autopsy along with necessary documents. He recorded the statement of witnesses and conducted the spot inspection. He collected blood stained and plain earth from the place where the deceased was found lying.

5. The post-mortem was conducted by Dr. Santosh Kumar PW-6 on the dead body of Km. Sangeeta, aged about 10 years, on 17.4.2002 at 3.30 P.M. The death had taken place about two days earlier. The body was average built. Rigor Mortis had passed off from all over body. The Body was swollen up. There were blisters present at places, the skin had peeled off, and the features were blotted. The tongue was present between the teeth and was swollen up. The Eyes were bulging in the eye sockets. Conjunctiva was congested, cornea was hazy. Feacal matter was coming out through the anal orifice .

6. The following ante-mortem injuries were found:

1. Ligature mark all around neck x 2 cm in width, present 1 cm below thyroid cartilage. The subcutaneous tissues under the mark were ecchymosed. Ligature mark horizontally placed.

2. On examination of external genitals, hymen and vaginal orifice was torn up, blood clot present.

Larynx was congested and tracheal rings broken. Left and right lungs were congested and right side heart was full and left side was empty. Stomach contained semi-digested food. The small and large intestine were half filled with faeces and gases. Liver, spleen and both kidneys were congested, gall bladder was half filled. Bladder was empty. Death was due to asphyxia as a result of ante-mortem strangulation. Dr. Santosh Kumar PW-6 sent the vaginal smear slides to the pathologist.

7. On 17.4.2002, PW-4 Swami Dayal arrested the appellant Nem Singh, who confessed to his crime and stated that he had strangulated the decea