Amar Saran, J

This capital appeal arises from a judgement of theAdditional Sessions Judge (Court no. 6), Budaun dated31.1.2013 in S.T. No. 505 of 2012 whereby the appellantAkhtar has been awarded a sentence of death under Section302 I.P.C together with a fine of Rs. 25,000/. The appellantAkhtar has also been sentenced to imprisonment for lifeunder section 376 I.P.C and a fine of Rs. 25,000/, and undersection 201 I.P.C, appellant Akhtar has been sentenced to 7years RI and a fine of Rs. 7000/. A death reference has alsobeen forwarded to this Court by the Sessions Judge forconfirming the sentence of death awarded to the appellantAkhtar.

We have heard Sri G.S. Chaturvedi, Senior Advocate,assisted by Sri Ajatshatru Pandey for the appellant and SriAkhilesh Singh, learned Government Advocate assisted by SriR.K. Singh and Sri Anand Tiwari, learned A.G.As for the State.Written arguments along with case law have also been filed bythe learned counsel for the parties.

Background and evidence

The first information report of this case was lodged byPW-1 Baise Ali, father of the deceased Noor-un Nisha on4.4.2012 at 8.15 p.m at the police station Ujhani. This FIRalleges that Noor-un Nisha aged about 12 years had gone tograze her buffaloes in the afternoon in the direction of J.S.Talkies. When she did not return till 5.00 p.m then a searchwas made for her by the informant and other residents of theMohalla. At about 6.00 P.M, when the informant, his brotherAfzal and Mohalla neighbours Afzal and Islam were crossingthe lane in front of the house of the appellant near SapraGuest House, they saw the appellant throwing the body ofNoor-un Nisha out side his house. The informant and otherpersons caught hold of the appellant Akhtar in Mohalla GaddiTola. Noor-un Nisha had died and there was a round mark onher neck and there were injuries on her body. With the help ofBaise and Afzal , the appellant was brought to the policestation where a report was lodged alleging that the appellantAkhtar had raped and murdered Noor-un Nisha on 4.4.2012.The case was registered at the police station at Crime No. 605of 2012 under sections 375, 302, 201 I.P.C in the presence ofthe investigating officer Ashok Kumar Singh.

Inspector Ashok Kumar Singh, P.S. Ujhani commencedthe investigation of the case. He arrived at the spot along withSI Raj Bahadur and female constable Parul Yadav and others.He directed SI Raj Bahadur to take steps for getting theinquest done on the body of the deceased and he recordedthe statement of the informant. He prepared the recoverymemos (Ext. Ka 11) of some black and Henna coloured hairwhich were found between the fingers of both the hands ofthe deceased Noor-un Nisha. He placed the hair on a whitepaper and then placed the same in a plastic box and sealedthem after wrapping the packet with a piece of cloth. Heinspected the spot and got photographs taken of the body andthe spot. Thereafter, he sent the dead body for post-mortem.He also collected the tiffin box, steel plate, grass and grassleaves tied with a string. The said items were wrapped in aDupatta which were lying near the body. He also took out theappellant Akhtar from the police lockup, who is said to haveconfessed to his crime. The appellant also agreed to take thepolice to the place, where he had strangulated the deceased.The I.O thereafter brought the appellant Akhtar to the spotalong with SI Raj Bahadur Rastogi and SI Nareshpal Singh. Theappellant took the keys of his house from his neighbour Dr.Netrapal. He opened the lock of his shop and climbed up thestairs and opened the lock of the room. He then pointed outthe bed in the room, where he admitted to have committedthe crime. Then the room and bedding were examined. On thebedding, some broken pieces of red coloured bangles andlong hair were found. The recovery memos of the hair andbangles were made.

The post-mortem on the dead body was conducted by Dr.Amit Kumar on 4.5.2012 at 2.25 p.m along with Dr. HarpalSingh. The age of the deceas