Circumstantial evidence, particularly the 'last seen' principle, can suffice for conviction in rape and murder cases yet demands rigorous scrutiny for reliability.

JUDGMENT :

Ram Manohar Narayan Mishra, J.

1. Heard Sri Vinay Saran, learned Senior Advocate and Amicus Curiae assisted by Sri Pradeep Kumar Mishra, Ms. Beena Mishra, learned Amicus Curiae for the appellant and Sri A. N. Mulla, learned A.G.A., Sri Arun Kumar Pandey, learned A.G.A. and Sri S.S.Tiwary, learned A.G.A. for the State.

2. Learned Additional Session Judge/Special Judge, POCSO Act, Firozabad has made a Reference to this Court on 01.12.2020 under Section 366 of Cr.P.C., for confirmation of Capital punishment awarded to appellant, Bantu @ Shiv Shankar in PST No.1642 of 2019. The Reference has been registered as Reference No.01 of 2021. The Jail Appeal has also been filed by the convict as Capital Case No.01 of 2021). This reference and appeal have arisen out of judgment of trial court dated 01.12.2020 in PST No.1642 of 2019 ( State of U.P. Vs. Bantu alias Shiv Shankar ), whereby appellant has been convicted for charge under Sections 376 AB, 302 IPC arising out of Case Crime No. 137 of 2019, P.S. Sirsaganj, District Firozabad and sentenced to death for both the charges and is directed to be hanged by the neck until he be dead. The above sentence is subject to confirmation by this Court. Both the sentences are directed to run concurrently. The Appeal and Reference have been framed together and are being disposed of by this common judgment.

3. The Reference and Appeal were admitted. The trial court’s record is received and paper book is ready. The prosecution case in nutshell is that PW- 1 Kancha Devi wife of Deepak Chandra lodged an FIR on the basis of written report dated 18.03.2019 at P.S. concerned stating that on 17.03.2019 her daughter aged about 8 years had gone to the house of Vimlesh at around 9:00 PM to watch DJ. The mother of the victim Smt. Kancha Devi visited the place of Vimlesh at about 09:30 PM, where Vimlesh and Mukesh who are her co- villagers disclosed that they had seen her daughter together with Bantu son of Atar Singh of their village. Whereupon she inquired about her daughter from Prabhu Dayal, who also stated that he had seen her daughter going with Bantu alias Shiv Shankar at around 09:15 PM. She visited the home of Bantu to inquire about her daughter, but she did not find her there. At around 01:00 AM in the night Bantu met her and stated that he had sent her daughter to bring Tobacco and gave Rs.10/- to her, she would come back. Thereafter she went in search of her daughter, but could not find her. In the next morning at around 06:30 AM co-villagers Vimal son of Ajay Pal told that underwear of her daughter was lying on the bank of drain of a tubewell on Mandhata Road. When she proceeded towards wheat field of Karu in search of her daughter, she found her lying dead. Blood was oozing out from lower part of her body, and her clothes were also smeared with blood. She stated in her FIR that Bantu had committed this incident to her daughter.

4. PW-8 Head Constable/Head Moharir Srichandra Verma registered an FIR on the basis of Ext. Ka-1 against accused, vide Case Crime No.137 of 2019, under Section 3 02 , 376, 201 IPC and Section 3 /4 of POCSO Act, which is annexed as Ext. Ka-4. PW-8 also made an entry of this FIR, vide GD Entry No.18 time 09:15 AM dated 18.03.2018, the extracts of which are marked as Ext. Ka-5. The record reveals that after lodging of FIR ,the police visited the place where dead body was lying and inquest was carried out. SI, Ashesh Kumar, who was posted at P.S. Sirsaganj, District Firozabad, as Incharge O.P. Arav on 18.03.2019 prepared the inquest report marked as Ext.Ka-6. In the inquest report it i