Saxena, J. -- 1. The aforesaid criminal appeal and capital sentence reference arise out of the impugned judgment and order of conviction and sentence dated 12th September, 2011 rendered in Sessions Trial No.79/11 by the Third Additional Sessions Judge, Bhind (M.P.). Since the judgment and order challenged in the appeal is one and the same which is the subject-matter of the capital sentence reference made by the learned trial Judge, the appeal and the reference are herewith, taken up together for disposal.

2. The appellant-accused stood his trial on the charges for the offences punishable under sections 376 and 302 of IPC before the Additional Sessions Judge and he was convicted and sentenced as following :

(a) for committing rape on the prosecutrix aged 7 years old, which is an offence punishable under section 376 of IPC, appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs.200/-, in default of payment of which he was directed to undergo imprisonment of one month;

(b) for committing murder of the prosecutrix, aged 7 years, which is an offence punishable under section 302 of IPC, appellant was sentenced to death.

3. Facts in short are that on 6th February 2011, during timings of 10:30 a.m. to 1 p.m. (in the noon), mother of victim (name and identity of the prosecutrix as per restrictions imposed by law contained in section 228A of IPC is not disclosed), Smt. Maya was fetching water from village well. Accused Parshuram, a resident of the village went there and expressed his desire to send her daughter (the victim) with him for eating plum-fruits from the tree, situated in the outskirt of the agricultural field of the village. When after a considerable period, the accused and her daughter (prosecutrix) did not come back, her mother left for in search of her daughter near the plum-tree, situated in the field of Kanchedi of village. After getting exhausted she came back to the house and narrated the incident to her mother-in-law and the villagers then she came to know from the persons of the locality namely, Manoj, Rambahadur and Narayan that they had seen her daughter with accused going towards the field of Shri Ram Rathore. On reaching the place, she found that her daughter was lying dead with injuries on her private parts and bleedings. On day of incident at about 5 p.m., in the evening, at her behest a Dehati Nalish on the spot itself was recorded by the In-charge/Inspector of the Police Station Roan, district Bhind, which was later on forwarded to the police station for registration of the FIR and the crime against culprit of the incident. After inquiry into Marg and investigation, a spot map (Ex.P-5) was prepared. By issuing Safina Form (Ex.P-6), the witnesses were summoned and in the presence of the witnesses, memo of dead body (Ex.P-7) was prepared. The dead body of the deceased (victim) was sent by a Constable Munnalal of the Police Station Roan, to the District Hospital, Bhind for conducting post-mortem. Case diary statements of the witnesses were recorded. Next day, accused was arrested and the charge-sheet was submitted.

4. On the materials submitted along with the charge-sheet, the learned Magistrate committed the case to the Court of Session as the offences punishable under sections 376 and 302 of IPC were exclusively triable by the Court of Sessions.

5. The accused-appellant was charged on the aforesaid counts by the trial Court. He pleaded not guilty to those charges and claimed for his trial.

6. The learned trial Judge after hearing the parties and on consideration of the material available found all the charges against the appellant as proved to the hilt and hence recorded the judgment of conviction and passed the sentences against him vide impugned as detailed above.

7. The learned Additional Advocate General assisted by learned Deputy Advocate General appearing for the State while supporting the death sentence awarded by the learned trial Judge to accused Parshuram contended that a