Ajit Singh, J. 1. The Sessions Judge, Khandwa, by his judgment dated 4.3.2013 passed in Sessions Trial No.53/2013 has sentenced accused Anokhilal to death for committing the murder of a minor girl, aged nine years, after raping and performing carnal sex with her. He has also convicted the accused for offences under sections 376(2)(f), 363, 366 and 377 of the Indian Penal Code and sentenced to life imprisonment and other terms of imprisonment with fine stipulations. All the sentences have been directed to run concurrently. The Sessions Judge has, therefore, made a reference to the High Court. Being aggrieved with the conviction, the accused has also filed Criminal Appeal No.248/2013. The reference and criminal appeal are being decided by this common judgment.

2. The relevant facts are these. Victim of the incident was a minor daughter, aged nine years, of Ramlal (P.W.2) and Shantu Bai (P.W.3). Although Ramlal belongs to village Langoti, he has shifted with his family to village Surgaon Joshi, District Khandwa, where he is employed as Chowkidar in a school. Ramlal lives in a room provided by the school within its premises which is in the outskirts of village. The accused also belongs to neighbouring village Dabhiya of the village of Ramlal and he too had started living in village Surgaon Joshi because of his employment since 5/6 months prior to the date of incident. The accused and Ramlal were, thus, known to each other. On 30.1.2013 sometime in the evening the accused came to the house of Ramlal and gave money to the victim to bring “bidi” for him from a kirana shop. After the victim left, the accused also left the house of Ramlal on a false pretext of attending a telephone call. And later when the victim did not return home, Ramlal went to Police Station Chhaigaon Makhan, Khandwa, and narrated the incident. The police recorded this information as of missing person vide Ex.1. On 1.2.2013, during search, Ramlal and other villagers found the dead body of victim on a mud-bound of an agricultural field. Her body was then carried by Ramlal to his house. Information in this regard was made at the police station which was recorded as Ex.2. The police thereafter prepared Panchayatnama, Ex.5, of the body and seized hairs, eight in number, from the fist of victim. The police also prepared spot map, Ex.3, and seized blood-stained soil, one match-box, a packet of biscuit and a coin of rupees five vide seizure memo, Ex.6, from the spot.

3. The body of victim was immediately sent for post-mortem examination which was conducted by Dr. Raksha Shrimali (PW 5) and Dr. Anil Tantwar (PW 6). The doctors found the following injuries on her body:

(a) Oozed blood from mouth

(b) Blood in vagina with a tear in posterior vaginal wall and torn hymen suggesting vaginal intercourse

(c) Perennial region bruises with the presence of blood in perennial region

(d) Multiple bruises and abrasion over back region

(e) Abrasion over left axilla area, size ¼ cm

(f) Abrasion around left side of lips, size ¼ cm

(g) Abrasion around left breast

(h) Brown colour bruise over anterior aspect of neck and sphincter torn

suggesting anal intercourse.

The doctors in their report, Ex.13, opined that the cause of death of victim was asphyxia due to throttling. The doctors had also cut the nails of both hands of the victim which contained skin. They prepared the seizure of cut nails along with the clothes (frock, paijama and inner garments) of the victim. The doctors also prepared two vaginal slides and two anal slides of the victim and handed over all articles in a sealed condition to the police for their chemical analysis. Dr. Raksha Shrimali (P.W.5) and Dr. Anil Tantwar (P.W.6) on further query opined vide Ex.15-A that during penetrative sexual assault, the above mentioned injuries found on the private part of victim were possible.

4. Since the accused had absconded, the police could arrest him on 4.2.2013. He was then referred to the doctor on 5.2.2013 for his medical