JUDGMENT

FAIZAN UDDIN, J.:—The present case before us reveals a sordid story which took some times in the afternoon of 17th February, 1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature is said to have been committed by the appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a Prey of his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large.

2. The appellant Laxman Naik was charged and tried under Section 376 and 302 of the Penal Code for committing rape and soon after murder of the victim inside the forest known as Chhotsima Jungle, situated on the way between the villages Patkadihi and Tangarjoda. Learned Sessions Judge, Mayurbhanj, Baripade, relying on the circumstantial evidence found to be established against the appellant, convicted him for an offence under Section 376 as well as under Section 302, of the Penal Code and having regard to the peculiar facts and circumstances of the present case found it to be rarest of the rare cases and, therefore, sentenced him to death. However, no separate sentence for the offence under Section 376 of the Penal Code has been awarded. The learned Sessions Judge made a reference to the High Court of Orissa for confirmation of the death sentence. The appellant Laxman Naik also preferred an appeal in the High Court of Orissa challenging his conviction and sentence as aforesaid. After a careful and close scrutiny of the evidence on record the High Court dismissed the appellants appeal and confirmed the death sentence awarded to him. This appeal, therefore, has been filed before this Court on being granted special leave.

3. Briefly stated the prosecution case at it turns out from the evidence on record was that of Rema Naik, PW 2 resident of village Patkaddihi had performed funeral rites at his house on 16-2-1990 in which he had invited his relatives and other villagers. Smt. Nitma Naik, PW 3, the mother of the present appellant is the sister of the father of Rema Naik PW 2. Smt. Nitma Naik, PW 3, her son the appellant Laxman and the deceased Nitma daughter of elder brother of the appellant, being close relatives of Rema Naik, also went from their village Tangarjoda to the house of Rema Naik at village Patkadihi to attend the said ceremony. It is said that in the afternoon of 17-2-1990 when all the relatives assembled in the ceremony including Rema Naik, PW 2 were busy in the observance of the ceremony, the appellant commanded the deceased to accompany him back to their village and the deceased followed him in obedience of his command. Around 4 PM the appellant and the deceased were found to be absent from function. Shortly thereafter Genada alias Ganga Ram, PW 1, resident of village Patkadihi saw the appellant and the deceased near Chhotsima jungle, going towards their village Tangarjoda. Sometimes later the appellant alone reached his house in village Tangarjoda where on being asked about the deceased by his elder brother Hindu Naik, PW 4, the father of the deceased, the appellant is said to have told him that the mother and the deceased Nitma were at the house of Rema Naik in village Patkadihi. In the same evening the appellant returned back to village Patkadihi and on being questioned by his mother Nitma Naik, PW 3 as to the whereabouts of the deceased, the appellant told her that she had safely reached her village Tangarjoda. The next morning when the appellants mother Nitma Naik was heading towards her village Tangarjoda, she noticed the appellant roaming about near Chhotsima jungle. On being asked again as to the whereabouts of the deceased, the appellant told to his mother that he was there in village Tangarjoda. But to her utter surprise when Nitma Naik PW 3, the mother of the app