For sentencing in capital cases, courts must weigh aggravating and mitigating factors, ensuring death penalty is only for the rarest of rare cases, while reflecting societal outrage against heinous crimes.

JUDGMENT :

SUDHIR AGARWAL, 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 14.03.2011 passed by Sri Vigyan Ram Mishra, Additional Sessions Judge, Court No. 1, Jhansi.

2. Capital Case Appeal No.4173 of 2011 has been filed by accused-appellant Santosh @ Tidkey through Sri S.P. Sharma, Advocate and Capital Case Appeal No.2330 of 2011 has been filed by same accused-appellant through Senior Superintendent, District Jail, Jhansi.

3. By the impugned judgment and order, accused-appellant has been convicted in Session Trial No.144 of 2009, (Case Crime No.665 of 2009), under Sections 376 , 302 and 201 IPC , Police Station Chirgaon, District Jhansi. Considering the case to be rarest of rare, he has been sentenced under Section 376 for life imprisonment; under Section 302 , he has been sentenced to death. He has been directed to be hanged till he dies. Under Section 201 , he has been sentenced to two years Rigorous Imprisonment (hereinafter referred to "R.I.").

4. For confirmation of death sentence, Reference No.06 of 2011 has been made to this Court by Trial Court vide letter dated 14.03.2011.

5. Factual matrix of the case arising from the written report Ex.Ka-1, as well as evidence brought on record is as follows:-

6. On 05.05.2009, a written report was presented before Police Station Chirgaon, District Jhansi by Informant, PW-1, Mehtab Singh, alleging that on previous evening of 04.05.2009 at about 05:00 PM, Informant's wife Usha was present in the house and their daughter Jyoti was playing in front of door. In the meantime, accused-appellant Santosh @ Tidkey, aged about eighteen years, came over there and told the child Jyoti to go with him to get mehadi applied on her hand, whereupon Jyoti went with him. When she did not return till night, Informant made search for her but could not trace. Buddh Singh, son of Hemraj, and Lakhan son of Gokal Rajpoot of the village told that they had seen Santosh getting Jyoti drunk water at the hand-pump in front of house of Amar Singh Rajpoot. They had seen him taking away the girl. When Informant and others made search for Santosh @ Tidkey, he could not be traced. Santosh is a mischievous boy and they are sure that he has murdered her and caused dead body of Jyoti disappeared has absconded.

7. On the basis of written report Ex.Ka-1, First Information Report (hereinafter referred to as "FIR") was lodged by PW-3, Constable, Brijesh Mohan Rawat, as Case Crime no.665 of 2009, under Sections 302 and 201 IPC on 05.05.2009 at 02:00 PM at Police Station Chirgaon, District Jhansi. He prepared Chick FIR Ex.Ka-6 and made relevant corresponding entry in General Diary (hereinafter referred to as "GD"), a copy whereof is Ex.Ka-7 on record.

8. After registration of case, investigation was entrusted to PW-5, Sub Inspector (hereinafter referred to as "SI") Sri Girwar Giri. He obtained a copy of FIR and after recording statement of Head Moharrier as well as Informant, PW-1, proceeded to the place of occurrence along with S.I. Sri Ram and other Police personnel. He searched for accused and recorded statement of mother of the deceased (Jyoti). He prepared site plan Ex.Ka-9 of the place where-from accused-appellant had taken prosecutrix / deceased. In the meantime, on getting information about location of accused, Police went t