IMPORTANT POINT
Requirements for death sentence discussed and applied.

JUDGMENT

R. Subhash Reddy, J.

1. Leave granted.

2. This criminal appeal is filed by the appellant in Criminal Appeal No.798 of 2013 filed before the High court of Madhya Pradesh at Jabalpur, aggrieved by the judgment dated 25.06.2013. By the aforesaid judgment, while dismissing the appeal preferred by the appellant herein convicted for the offence under Sections 302, 363, 366 and 376(2)(i) of the Indian Penal Code (IPC), the High Court answered the reference in affirmative by confirming the death sentence awarded to the appellant.

3. Necessary facts, in brief, giving rise to this appeal are that the deceased, a minor girl aged about 8 years, had gone to attend the ‘Mela’ along with her younger brother namely Chhunu (PW-4) on 03.02.2013. It is the case of the prosecution that the appellant who is aged about 50 years then, took away the deceased from the ‘Mela’ and committed rape and murdered her. Narendra (PW-2) informed the police stating that his daughter, who had gone to attend the ‘Mela’, has not returned home. Upon such complaint, case was registered and investigation commenced. In the course of investigation one Amit Mourya (PW-1) informed the Investigating Officer that when he was coming to his shop from residence, he saw a dog running away with a leg of a child in its mouth and on being chased, the dog dropped the leg and ran away. Further, it was the case of the prosecution that in the process of investigation, Investigating Officer found a headless body of the deceased in the bushes near the ‘Dushera Maidan’, Bhopal. It is alleged that the left leg of the deceased was found at a distance of 100 ft. and both legs were fractured. Further, it is noticed that there were severe injuries on the private parts of the deceased inflicted by the appellant due to which the intestine had come out. During the process of investigation the statement of the appellant was recorded under Ex.P8 and the blood stained cloths and articles he used for the offence were recovered from his house. After completing the investigation, the appellant was chargesheeted for the offence punishable under Sections 363, 366, 376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012.

4. The trial court, after appreciation of the evidence on record, which is mainly circumstantial, came to the conclusion that the appellant has committed rape on the minor girl and murdered her and further, by recording a finding that the crime committed by the appellant is heinous and barbaric, falls within the category of ‘rarest of rare’ cases, imposed the death sentence. The appellant is also convicted and sentenced for the offence punishable under Sections 363, 366, 376(2)(i) of the IPC. In view of the award of death sentence, the trial court has made a reference to the High Court for confirmation, as contemplated under Section 366 of the Code of Criminal Procedure (Cr.PC). Questioning the conviction recorded and sentence imposed, the accused has filed appeal in Criminal Appeal No.798 of 2013 and the High Court has disposed of, by common judgment, Criminal Reference No.05/2013 and Criminal Appeal No.798/2013. The High Court, by judgment dated 25.06.2013, while dismissing the appeal of the appellant, has affirmed the reference confirming the death sentence awarded to the appellant.

5. We have heard learned senior counsel for the appellant, Sri Sanjay R. Hegde and also learned counsel appearing for the State Ms. Swarupama Chaturvedi.

6. In this appeal, it is contended by learned counsel for the appellant that though there is no acceptable and convincing evidence to prove the guilt of the accused beyond reasonable doubt, the appellant is convicted by the trial court based on the circumstantial evidence which is not enough to record guilt of the accused. It is submitted that from the evidence on record, the prosecution has also failed to prove concept of ‘last seen’. It is further submitted that the trial court as well as High Court h