Hon’ble Amar Saran J.—This Capital Appeal has been filed against a judgement and order dated 24.12.2012 passed by the Additional Sessions Judge (SC and ST Act), Bareilly convicting and sentencing the appellant to life imprisonment under Section 376 IPC, seven years R.I. under Section 201 IPC and a fine of Rs. 25,000/-, life imprisonment under Section 3(2)5 of SC and ST Act and a fine of Rs. 25,000/-. In case of default in payment of fine, the appellant was to undergo further imprisonment of one year under Section 376 IPC, six months under Section 201 IPC and six months under Section 3(2)5 of SC and ST Act. The appellant was also awarded death sentence under Section 302 IPC.

2. A Criminal Reference under Section 366(1) of the Code of Criminal Procedure has been sent by the learned Sessions Judge for confirmation of the death sentence.

3. In short, the prosecution case was that on 27.5.2009, at 9.00 a.m., the deceased Km. Meera Devi, aged 10 years had gone to the pasture for grazing her goats. Her cousin Vivesh, aged 6 years had also gone alongwith her. As Km. Meera Devi became thirsty, they had gone to the tube-well of Munish Pal at about 10.00 a.m., which was operated by the appellant Ashok, for drinking water. With an evil intent Ashok forcibly caught hold of Meera and took her into the Kothri (room) adjoining the tube-well and committed rape on her and thereafter he murdered her. There were injuries on her private parts. Ashok thereafter hid the dead body in a haystack in that room. When Vivesh returned home at about 11.00 a.m., without Meera, then the informant Heera Lal, the father of the deceased enquired from Vivesh about the whereabouts of Meera Devi. Vivesh told him that Meera had gone to the tube-well to drink water and after that he did not know where she had gone. After this, the informant proceeded to the tube-well and enquired from Ashok about Meera, who gave evasive replies. Then he searched in the room at the tube-well and found her dead body under the haystack. Finding an opportunity, Ashok gave the informant and witnesses a slip and ran away from the spot. The informant thereafter proceeded to the police station Bhuta, which was 21 Kms away, where he lodged the report on 27.5.2009 at 2 pm.

4. PW 6, Clerk-Constable Tejpal Singh prepared the check FIR and registered a case at case crime No. 259 of 2009, under Sections 376, 302,201 IPC and 3(2) 5 of SC and ST Act against the appellant and made the necessary GD entries at 2 p.m. on the same day (i.e. 27.5.2009).

5. PW 7, SI Harikesh Tiwari, reached the spot and took out the body from the Kothri of the tube-well and conducted the inquest on it. He also removed the Tahmat, which was tied on the neck of Meera Devi and prepared a recovery memo (Ext. Ka 15). He also collected Meera’s frock, which was bloodstained and prepared its recovery memo (Ext. Ka 14).

6. PW 8, Shri Daya Ram Chaudhary, C.O. Faridpur started the investigation of this case on 27.5.2009. He made necessary entries of the report and all other papers, such as inquest, photo lash, challan lash, report of R.I. etc. and also recorded the statements of the witnesses of inquest and recovery memos etc.

7. The post-mortem was conducted by a panel consisting of Dr. Anil Kumar Agrawal, Dr. M.K. Shukla and Dr. Sarika Singh on the directions of the District Magistrate, Bareilly on 27.5.2009 at 11.45 p.m.

The deceased was about 10 years in age. The time of death was about half a day. The body was average built. Eyes were closed, mouth was partially opened. Rigor mortis was present in upper and lower limbs and there was no sign of decomposition. Wheat grains and dust were present on all the side of the body and perineum and inside the vagina. Some digested food material was coming out from the nose and mouth.

The following ante-mortem injuries were seen:

1. Multiple abrasion at right side of chest in an area of 6 x 4 cm.

2. Multiple abrasion in front and both sides of upper parts of neck, just above the glott