Umesh Chandra Srivastava, J.

1. This appeal has been filed against the judgment and order dated 3.3.2016 of Additional Sessions Judge/Fastrack Court, Saharanpur passed in S.T. No.387 of 2013, State vs. Boby, by which the appellant has been convicted under Sections 376-A and 302 of IPC and sentenced with capital punishment for the first count and the same punishment i.e. death penalty and to pay Rs.5,000/- as fine for the second count.

2. A reference being reference No.2 of 2016 has also been made by the Additional Sessions Judge, Fastrack, Saharanpur under Section 366 (i) of the Code of Criminal Procedure for confirmation of death punishment awarded the appellant for the offences under Sections 376A and 302 IPC.

3. Both the above mentioned criminal appeal and reference being connected with the same judgment are being decided together by a common judgment.

4. The prosecution case as set up in the FIR is that appellant Boby Singh son of Sushil, who is the resident of village Fatehpur Kalan, Police Station Nagal, District Saharanpur took deceased Km. Payal aged about two and half years of the same village to a sugarcane field on the pretext of providing toffee to her and killed her after committing rape upon her. Mahaveer of the same village had seen appellant taking deceased towards the sugarcane filed. Basant Kumar, father of the deceased alongwith Mahaveer went to the sugarcane filed in search of deceased and when they entered the field, they saw that appellant was strangulating deceased to death. They arrested appellant on the spot and thereafter father of the deceased went to Police Station Nagal alongwith appellant and written report of the incident and handed over the appellant and the written report to the police whereupon an First Information Report of the incident was registered against the appellant under Sections 376, 302 IPC and appellant was kept in the police lockup. This incident took place in the evening of 7.2.2013 at 6 p.m. The written report and chick FIR are Exs. A1 and A9.

5. Inquest report on the dead body of deceased was done on 8.2.2013 and thereafter, dead body was sent to District hospital Saharanpur for post mortem. The post mortem on the the dead body of deceased was conducted by Dr. Rajesh Kumar Tiwari and following ante mortem injuries were found :-

(I) multiple abraded contusion in an area of 13 cm x 8 cm both side of face, upper and lower lip, chin and upper part of neck and nose.

(II) Laceration of vagina, urethra, uterus at 6' O clock position, clotted blood present in vagina and around it.

According to doctor, death of deceased was caused due to asphyxia as a result of ante mortem smothering. Post mortem report is Ex. Ka-14.

6. Appellant was also medically examined on 8.2.2013 at 10:50 a.m. at C.H.C. Nagal, Saharanpur by Dr. Virendra Singh and following injuries on 8.2.2013 at 10:50 a.m. and following were found on his person:-

(I) Red abrasion on left side of forehead measuring 3 cm x 0.8 cm just above from left eye brow.

(II) Red contusion 6 cm x 1.5 cm on left side of face just below from left eye.

As per opinion of doctor, the above injuries were caused by hard and blunt object, fresh in duration and simple in nature.

7. The investigation of the case was undertaken by S.I. Naresh Pal Singh, the then S.O. of P.S. Nagal, Saharanpur who visited the place of occurrence and took statements of witnesses and after completing investigation submitted charge sheet against appellant under Sections 376 and 302 IPC in the Court of Magistrate concerned.

8. The cloths worn by the deceased and appellant were also sent to Forensic Science Laboratory for chemical examination and blood stains were found on the clothes of deceased, but no such stains were found on appellant's clothes.

9. The case of appellant was committed to the Court of Session who framed the charge against appellant under Sections 376 and 302 IPC, to which appellant pleaded not guilty and claimed to be tried.

10. Prosecution examined as many as n