JUDGMENT

J.M. Panchal, J.

1. The appellant and one Mumtaz were prosecuted for commission of rape and murder of Yasmeen aged five years daughter of Nayeem Ahmad and for causing disappearance of evidence of those offences. The learned Additional District and Sessions Judge, First FTC Court, Nainital, by judgment dated January 7, 2004, rendered in Sessions Trial No.252 of 1998, convicted the appellant and Mumtaz under Sections 302, 376 and 201 of Indian Penal Code (IPC) and imposed penalty of death sentence for commission of offence punishable under Section 302 IPC as well as R.I. for life for commission of offence punishable under Section 376 IPC and a fine of Rs.10,000/- in default R.I. for one year and R.I. for seven years and a fine of Rs.5,000/- in default R.I. for one year for commission of offence punishable under Section 201 IPC.

2. Feeling aggrieved, the appellant and Mumtaz preferred Criminal Appeal No. 36 of 2004 whereas Reference made under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge in view of death sentence passed against both the accused was registered as Criminal Reference 1 of 2004 before the High Court of Uttaranchal at Nain