Rajendra Kumar, J.

1. Present Reference under Section 366 Cr.P.C. and Capital Case under Section 374(2) Cr.P.C. have arisen from judgment and order dated 26.09.2018 passed by Sri Sanjeev Shukla, Additional Sessions Judge, Court No. 1 / Special Judge, POCSO Act, Pilibhit in Special Session Trial No. 31 of 2016, whereby accused-appellant has been convicted under Sections 376, 302 and 201 IPC. Considering the case to be rarest of rare, accused-appellant has been awarded death sentence and a fine of Rs. 25,000/- under Section 302 IPC and in default of payment of fine, he has to undergo Rigorous Imprisonment (hereinafter referred to "R.I.") for two years, under Section 376 IPC life imprisonment and Rs. 25,000/- and in case of default in payment of fine, he has to further undergo R.I. for two years and further under Section 201 IPC, sentenced to undergo R.I. for three years with a fine of Rs. 10,000/-and in case of default in payment of fine, to further undergo R.I. for one year.

2. Prosecution case, in brief, is that on 21.02.2016, at about 7:00 p.m. daughter of PW-1 Dev Prakash (victim name withheld by us), aged about 11 years got out of his house after taking meal but did not return to her house and suddenly disappeared. Then PW-1 himself along with wife remained searching of his daughter. Dead body of victim was found lying in the bushes of Semi Tree in the vacant plot of one Ram Bahadur, behind the house of Mukesh. It was suspected that victim was murdered by some one.

3. On the basis of written report (Ex. Ka-1), presented by PW-1 and scribed by one Rishipal, chick F.I.R. (Ex. Ka-18) was lodged by Constable Clerk in the Police Station bearing Crime No. 208 of 2016, under Sections 302 and 201 IPC. An entry of crime was made in General Diary No. 18 by Head Constable-Babu Ram, copy whereof is Ex.Ka-17.

4. Investigation of the case was handed over to PW-4 SI Ram Kumar Singh, who visited the spot, prepared site plan (Ex.Ka-….. ) and under the instruction of the then SHO, prepared inquest report (Ex.Ka-2) and related paper thereto i.e. Challan Lash (Ex.Ka-4), Photo Lash (Ex. Ka-5) letter to R.I., letter to C.M.O. (Ex. Ka-7) and sent body of deceased in a sealed cover for post mortem. He also took one black Dupatta, one legging Green colour, old, used and one set of plastic Sleeper (Blue Colour) into custody and prepared memo (Ex. Ka-10) under his signature.

5. During investigation, accused was apprehended by the then Station House Officer at about 6:15 a.m. on 26.02.2016. Accused-appellant confessed his guilt before Police and on his pointing out, Police recovered, his Pant from the house of accused and Kundal (Ear Ring) belong to deceased kept in the pocket of his Pant.

6. Pw-3 Dr. T.P. Rathore conducted autopsy of deceased and prepared post mortem report (Ex. Ka-3) under his signature.

7. Pw-5 Investigation Officer concerned after completing all necessary formalities of investigation submitted charge sheet (Ex. Ka-9) against the accused-appellant.

8. Four charges were framed against accused-appellant on 12.06.2016 under Sections under Sections 376, 302, 201 IPC and 3/4 POCSO Act to which accused denied and claimed trial. Charges read as under:-

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