JUDGMENT :

1. This appeal is against the judgment and order of the learned Sessions Judge, Ramabai Nagar dated 16.11.2011 whereby the appellant has been convicted under Sections 302, 376 and 201 I.P.C. and sentenced as follows:

(i) imprisonment for life as well as fine of Rs. 20,000/- under Section 302 I.P.C.

(ii) imprisonment for life as well as fine of Rs. 20,000/- under Section 376 I.P.C.

(iii) seven years RI as well as fine of Rs. 5,000/- under Section 201 I.P.C. All sentences to run concurrently.

2. Considering the nature of the offence, we deem it appropriate to mask the identity of the victim and her family therefore, wherever required they have been assigned a pseudonym or are described by their witness number.

INTRODUCTORY FACTS

3. On 10.03.2010 at 7.20 a.m. a written report (Ex. Ka-1), scribed by VKR (not examined), signed by PW-1, the father of the victim, was submitted at police station Shivrajpur, district Kanpur Nagar giving rise to Case Crime No. 84 of 2010 in respect of which, chik FIR (Ex. Ka-3) and GD entry (Ex. Ka-4) was made by PW-5. In the written report it was alleged that at 7.30 p.m. on 09.03.2010 the victim, who is aged seven years, was noticed by RK (not examined) and informant’s brother (PW-2) in the company of the accused-appellant going towards the brick kiln; the victim did not return; a search for the victim was made in the night but the victim could not be found; and next day morning (i.e. 10.03.2010), at about 6.00 a.m., body of the victim has been found at the brick kiln. By expressing suspicion that the accused-appellant committed rape and murder of the victim the FIR was lodged. Pursuant to the report, at about 11.00 a.m. on 10.03.2010, inquest was conducted of which inquest report (Ex. Ka-9) was prepared by PW-7 and the body was sent for autopsy. The autopsy was conducted on 10.03.2010 itself. The autopsy report prepared by PW-3 describes the body and the injuries, etc noticed as follows:

(a) Age: about seven years.

(b) Time since death: one day.

(c) External examination:

Average built; eyes closed; tongue protruded; face, lips and nails cyanosed. R.M. present in both extremities. P.M. staining on whole back, buttock and thigh; mud present in head, hair, face and scalp.

(d) Ante Mortem injuries:

(i) Multiple abraded contusion in 11 cm x 3 cm area on front of neck and right lateral and left lateral part of neck 4 cm below chin. Ecchymosis TN present. Base of abrasion is brownish. Fracture of hyoid bone is present.

(ii) Vagina lacerated. Edges are swollen and bleeds to touch. Two fingers are easily introduced, blood oozing from vagina, clotted blood present inside cavity.

(e) Cause of death:

Asphyxia as a result of ante mortem throttling.

4. On 11.03.2010, vide CD Parcha No. 2, the appellant was arrested by PW-7 and on the basis of his confessional statement and pointing out following articles were recovered from his house: (i) a bed spread (Bichhona) which was spread over a wooden plank kept in the room; (ii) a quilt/woollen loyi having blood spots; (iii) a Dhoti alleged to have been used to wipe off semen stains and (iv) underwear, which he was wearing, alleged to be having blood and semen stains. A seizure memo (Exb. Ka-7) was prepared to reflect seizure of said articles. It be noted that the two witnesses of the seizure who had signed on that seizure memo were not examined during the course of trial.

5. During the course of investigation, statement of the informant (PW-1) was recorded on 10.03.2010 and, later, on 26.03.2010 his clarificatory statement was recorded. In between, on 12.03.2010 statement of PW- 6 was recorded who disclosed about a confession being made to him by co-accused Awadhesh @ Ankaj, who died in an accident on 14.03.2010 of which entry was made on 15.03.2010 vide CD Parcha No. 4. The statement of PW-2 was recorded on 27.03.2010 and on 08.04.2010 statement of RK (not examined) was recorded. On 12.04.2010, statement of inquest witnesses was recorded. On 29.04.2010 statement of PW-4 (mothe