A. B. SRIVASTAVA, J. ( 1 ) AGAINST his conviction and sentence of death for offence under S. 302, I. P. C. and imprisonment for life for the offence under S. 376, I. P. C. awarded by the IVth Addl. District and Sessions Judge, Aligarh vide judgement dated 7-7-1992, the accused Vinod has preferred this appeal. The usual reference for confirmation of the death sentence has been made by the learned trial Court. ( 2 ) THE accused appellant, Gopal, the victim deceased Km. Renu, the first informant and the prosecution witnesses of this case are all residents of Mohalla Ghanshyampuri in the city of Aligarh. Shiv Temple in which the incident in question is alleged to have taken place is also situated in the same locality Ghanshyampuri and the houses of the informant, witnesses as well as the accused appellant are situated in the vicinity of the said temple. Towards south of the temple is situated Nehru Park, in a portion of which there are three stalls in one of which accused Vinod has his tea shop. Towards north of the temple there is a public passage and east a lane known as mandir Wali Gali. The sanctum sanctorum of the temple faces north. There are two gates, one opening in the passage towards north and the other opening towards east in eastern Verandah of the temple. Towards east of the Verandah is a Chabutara and a well. The said chabutara adjoins the eastern lane. Towards east, south and west of the sanctum sanctorum, there is Parikrama of the temple about one step 222 1/2 feet) wide. ( 3 ) THE victim Km. Renu aged about 11- 12 years was the granddaughter of informant Dulari Devi (P. W. 1 ). The parents of Km. Renu had died a few years ago leaving Renu and her younger brother Gopal. Both Renu and Gopal were thus, living under the care and guardianship of their grandmother Dulari Devi. ( 4 ) ACCORDING to the prosecution version, on 12-11-1991 near about 3. 30 p. m. when Dulari Devi, Gopal and Renu were in their house, one Sajjan Sharma, a friend of her late son Brij Mohan, along with accused Vinod Kumar, came to the said house and stayed for a short while during which Sajjan Sharma got purchased biscuits for the two children. He gave Rs. 5. 30 p. m. when Dulari Devi, Gopal and Renu were in their house, one Sajjan Sharma, a friend of her late son Brij Mohan, along with accused Vinod Kumar, came to the said house and stayed for a short while during which Sajjan Sharma got purchased biscuits for the two children. He gave Rs. 5. 00 to accused Vinod Kumar who brought the same, and after consuming tea at the place of Dulari they went away. Dulari also went to a neighbouring house for watching T. V. leaving only Renu and Gopal at home. After a short while Gopal went to Dulari Devi and informed that accused Vinod had taken Renu with him. On learning this when she returned home, she heard noise and commotion at the nearby temple. Meanwhile Prem Dutta Mishra (P. W. 3) the person at whose instance Shiv Temple was constructed and who as usual had gone to the temple, while climbing the stairs of the temple heard the shrieks of a girl. On this he rushed into the temple and saw accused Vinod coming out from inside the temple. He asked Vinod as to what he was doing and catching hold of him peeped inside and saw Renu lying in an unconscious state with her Kachha (underwear), in one leg. On this accused Vinod with folded hands begged for mercy and requested to be let off. This further aroused suspicion of Prem Dutta who catching hold of the accused went inside to the place where the girl was lying, and found her dead. He raised alarm which attracted and brought to the scene of occurrence Santosh Kumar (P. W. 2) Sardar Indrajit (P. W. 4), one Vinod Baboo and few others. Dulari Devi also reached soon thereafter. The accused Vinod Kumar begged forgiveness of all these persons saying that he has committed mistake once and he may be forgiven. Shortly afterwards two constables on patrol duty also arrived there and caught hold of accused Vinod Kumar. Leaving dead body of Km. Renu in the Parikrama where she was done to death in the care of others. Dulari Devi went to the police station Civil Lines, Aligarh, taking accused Vinod also with the help of the constables. There she lodged her written report Ex. Ka. 1 scribed by P. W. 2 Santosh Kumar and also handed over accused Vinod to custody at 10. Dulari Devi went to the police station Civil Lines, Aligarh, taking accused Vinod also with the help of the constables. There she lodged her written report Ex. Ka. 1 scribed by P. W. 2 Santosh Kumar and also handed over accused Vinod to custody at 10. 45 p. m. the same night. The P. W. 6 Mahak Singh S. H. O. Police Station Civil Lines, Aligarh in whose presence F. I. R. was lodged, took up the investigation himself and recorded the statement of the two witnesses and the accused person at the police station. Reaching the place of occurrence thereafter, he got inquest of the dead body made and the memo prepared under his supervision by S. I. Ram Charan Singh Chauhan. The underwear from the body of the girl was also taken in possession and was sealed. The dead body of Renu was also duly sealed and sent for postmortem examination. ( 5 ) THE autopsy on the dead body of Km. Renu was made by Dr. M. Ali, then Senior Medical Officer District Hospital (P. W. 5) and the following ante-mortem injuries were found :-i) Contusion 3 x 2 cm on Rt labia Majora. ii) Contusion 2 x 2 cm on Lt labia Majora. iii) Contusion 3 x 2 cm on Rt side of neck just above thyroid cartilage. He found dribling of saliva from right angle of mouth. No seminal stain nor any human hair was found on the external part of vagina. ( 6 ) ON internal examination pleura, larynx and trachea were found congested. There was fracture of thyroid cartilage. Tongue was found bitten between teeth and the oesophagus was congested. Organ of generation was congested, hymen and vagina was lacerated. Death of Km. Renu was due to asphyxia as a result of strangulation. The Investigating Officer inspected the place of occurrence on 13-l1-1991 and prepared site plan Ex. Ka. 12. He recorded the statements of the remaining witnesses of the prosecution and on 4-12-1991 laid charge-sheet against the accused appellant. ( 7 ) THE accused Vinod Kumar who was charged by trial Court of the offences under Ss. 376 and 302, I. P. C. pleaded not guilty to the same and claimed to be tried. Ka. 12. He recorded the statements of the remaining witnesses of the prosecution and on 4-12-1991 laid charge-sheet against the accused appellant. ( 7 ) THE accused Vinod Kumar who was charged by trial Court of the offences under Ss. 376 and 302, I. P. C. pleaded not guilty to the same and claimed to be tried. He admitted that the houses of the informant, the witnesses and his own house, are in the vicinity of Shiv Temple in Ghanshyampuri and that deceased Renu was the granddaughter of informant Dulari Devi. He denied having gone to the house of Dulari Devi with Sajjan Sharma, taken tea there and returned thereafter. He pleaded ignorance about Dulari immediately thereafter going to neighbours house to watch T. V. and denied taking away Km. Renu with him from her house and having committed rape on her. He further denied that the girl shrieked inside the temple and shortly thereafter while coming from the said portion of the temple he was seen by P. W. 3 (Prem Dutta Mishra) and was apprehended enquiring as to what he was doing there, and going inside the temple with him, saw Km. Renu lying dead with Kachha in her one leg. He also denied that he pleaded for mercy and begged excuse for his first ever mistake and prayed forgiveness in the presence of witnesses. He claimed to have been arrested by the police from his home at 4. 00 a. m. and to have been falsely implicated in this case on account of group rivalry because he did not remove his stall despite being pressed by the witnesses. ( 8 ) THE prosecution evidence led before the learned trial Court consisted of the statements of P. W. 1 Smt. Dulari, the grandmother of the deceased, Santosh Kumar (P. W. 2), Prem Dutta Mishra (P. W. 3) and Sardar Indrajit Singh (P. W. 4), all witnesses of fact, Dr. M. Ali (P. W. 5) who conducted the autopsy of the dead body, and Mahak Singh (P. W. 6) the Investigating Officer. ( 9 ) NO evidence in defence was led by the accused appellant. ( 10 ) THE learned counsel on a appraisal of the evidence and the circumstances held that the prosecution has been able to prove that accused Vinod had visited the house of Dulari Devi along with Sajjan Sharma around 8. ( 9 ) NO evidence in defence was led by the accused appellant. ( 10 ) THE learned counsel on a appraisal of the evidence and the circumstances held that the prosecution has been able to prove that accused Vinod had visited the house of Dulari Devi along with Sajjan Sharma around 8. 30 p. m. on 12-11-1991, Sajjan Sharma got milk and biscuits brought for Km. Renu and his younger brother Gopal by giving money to accused Vinod, meanwhile Dulari Devi prepared tea and after consuming the same Sajjan and Vinod left the said place, immediately followed by Dulari Devi who went to watch T. V. in a neighbours house, leaving Km. Renu and Gopal only in the house. Thereafter accused Vinod went there again and took Renu with him to the Shiv Temple, shortly afterwards Prem Dutt Mishra while climbing the stairs of the temple heard shrieks of a girl, and rushing into the temple, he saw accused Vinod emerging from inside the temple in a perplexed condition. He caught him and taking inside the temple found Km. Renu lying dead in the Parikrama of the temple with her Kachha entangled in one leg. The accused begged forgiveness of Prem Dutt and requested to be let off. On the alarm raised by Prem Dutta the other witnesses including Dulari Devi, arrived there and in their presence also the accused admitting his guilt begged forgiveness. The trial Court found on a cumulative consideration of all these facts and chain of events, as well as the medical evidence, that it was established beyond reasonable doubt that taking Km. Renu in the temple which at that time was lonely, accused Vinod committed rape on her and also committed murder by strangulating her to death. All these facts in his opinion led to the only hypothesis that it was accused Vinod who committed these offences under Ss. 376 and 302 I. P. C. and was liable to be convicted thereof. He accordingly convicted appellant Vinod of the two offences and awarded sentence of death for the offence under S. 302, I. P. C. and imprisonment for life under S. 376,i. P. C. ( 11 ) WE have heard Shri P. N. Mishra, learned counsel for the appellant and the learned A. G. A. appearing on behalf of the respondent State and have been taken through the entire evidence on record. ( 12 ) THE fact that Km. Renu aged about 12 years was done to death inside the Shiv Temple in Mohalla Ghanshyampuri in the city of Aligarh on 12-ll-1991 shortly after 8. 30 p. m. is not challenged or disputed by the defence in this case. The medical evidence consisting of the autopsy report Ex. Ka. 9 and the statement of P. W. 5 Dr. M. Ali also established beyond any doubt that Km. Renu was strangulated to death by pressing her neck. ( 13 ) THAT there were contusions on her right as well as left labia majora, the hymen and vagina were lacerated though no seminal stains or human hair were found, indicate that forcible penetration by a male organ was made before Km. Renu was done to death. The testimony of the witnesses of fact (P. W. 1 to P. W. 4) that Km. Renu was lying dead in the Parikrama with her Kachha entangled in one of her legs, also corroborates the same. According to the definition in S. 375 of the I. P. C. penetration alone is sufficient to con- stitute rape. The existence of injuries on the private parts of the deceased coupled with the medical opinion of Dr. Ali that these could be caused by penetration of hard object like fully confirm the conclusion, about rape having been committed on Km. Renu, despite the absence of any seminal stains etc. ( 14 ) THE questions canvassed in this appeal, and the reference, on behalf of the accused appellant Vinod are that, there being no eye-witness available who might have seen the accused appellant committing rape on Km. Renu and committing her murder, his conviction on mere stray circumstances is neither justified nor sustainable. The evidence led by the prosecution does not establish any such chain of events and circumstances which may conclusively point to the guilt of the accused appellant and rule out the hypothesis of his being innocent. The evidence of the witnesses of fact (P. W. 1 to 4) is full of contradiction and based on imagination, hence is unreliable. The accused appellant had no motive to commit this crime and the FIR is a dubious and ante-timed document on which no reliance can be placed. The evidence of the witnesses of fact (P. W. 1 to 4) is full of contradiction and based on imagination, hence is unreliable. The accused appellant had no motive to commit this crime and the FIR is a dubious and ante-timed document on which no reliance can be placed. ( 15 ) THE contention of the learned A. G. A. on the other hand is that the chain of events and circumstances as established by the prosecution evidence, to the effect that finding Smt. Dulari, the only adult member of the family temporarily away from her house, the accused appellant took Ku. Renu aged about 12 years inside the temple nearby which was lonely, there he committed rape by penetrating his genital organ and when she shrieked, killed her by strangulating to death. As he tried to run away after committing the crime, he was caught and questioned by P. W. 3 Prem Dutta Mishra who was attracted on hearing shrieks of the girl. The accused on being so caught begged forgiveness and prayed for being let off, to Prem Dutt as well others who arrived on his alarm. All these according to him conclusively prove the guilt of the accused appellant as perpetrator of the rape and murder of Km. Renu. ( 16 ) AS is apparent from the narration above, the case of the prosecution against the appellant is not based on direct eye-witnesses account of the commission of the crime, rather is based on circumstantial evidence, as well as own conduct of the accused person immediately after the commission of offence. The prosecution, therefore, can succeed, and the conviction of the appellant sustained, only on the following conditions being fulfilled. i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. ii) The facts so established should be consistent only with the hypothesis of the guilt. iii) The circumstances should be of a conclusive nature and tendency. iv) They should exclude every possible hypothesis except the one to be proved. v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. . iv) They should exclude every possible hypothesis except the one to be proved. v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. . ( 17 ) NOW in order to determine as to whether the evidence led by the prosecution fulfils the requirements aforesaid, it will be proper to assess the evidence, with regard to the chain of events and the circumstances, led by the prosecution consisting of the testimony of P. Ws. 1 to 4. ( 18 ) THE P. W. 1 Smt. Dulari, grandmother of deceased Km. Renu stated that on the date of incident between 3. 30 to 9. 00 p. m. she had gone to her neighbours house to watch T. V. leaving her grand children Km. Renu and Gopal whose parents are not alive, at home. Sajjan Sharma, a friend of late Brij Mohan, the father of Gopal and Renu who was on visiting terms with her family had a little before 8. 30 p. m. come to her house along with accused Vinod. Giving money to Vinod, Sajjan Sharma, got purchased biscuits and milk for the children After consuming tea, they both left and she went to her neighbours house, after a little while Gopal went to her and informed that Vinod had taken Renu with him. She returned home and started searching Renu. In the meantime she heard noise from towards the temple and went there. Several other persons including Santosh, Indrajit, Pramod had reached. She saw accused Vinod having been caught by the people there. He was begging forgiveness by folding his hands to every body, she saw dead body of Renu aged about 11 years on the Munder of the Well in the temple. The constables on patrol duty also reached there. The accused was taken to the police station. She followed him and on her dictation F. I. R. Ex. Ka. 1 was written which she lodged at the police station cross-examined she stated that some time back there had been marpit and litigation between Vinod and her two sons and they were not on visiting terms since then. The accused was taken to the police station. She followed him and on her dictation F. I. R. Ex. Ka. 1 was written which she lodged at the police station cross-examined she stated that some time back there had been marpit and litigation between Vinod and her two sons and they were not on visiting terms since then. She does not know how the parentage of the witnesses was recorded in the F. I. R. The next day at 11. 00 p. m. she again went to the police station where dead body of Km. Renu was lying, Vinod was present at the police station. The police men were talking to him. She did not go to the mortuary. On the spot she had seen Vinod begging forgiveness. The police did not take him away in her presence. She had started badly weeping and therefore, she was turned aside. ( 19 ) THE P. W. 2 Santosh Kumar Sharma, also scribe of the F. I. R. Ex. Ka. 1, stated that at about 8. 40 p. m. on the day of occurrence when Hindi news on the T. V. was being broadcast, from his home he heard the noise coming from the direction of the temple, reaching there he found Renu lying dead in the Parikrama of the temple her underwear entangled in one leg and her frock a little turned upward, and some people of the locality including Prem Dutt and Indrajit who had already arrived there were catching hold of accused Vinod Kumar who then was not speaking anything. The people assembled there were talking that Vinod had killed the girl. He telephoned the S. P. (City ). Within a few minutes, further force arrived, the accused Vinod was arrested on the request of the old lady, he recorded the F. I. R. , on being asked and dictated by S. O. Police Station Civil Lines, then said he scribed the F. I. R. on the dictation of old lady Dulari and after reading over the contents obtained her thumb impression. Cross-examined he stated that, prior to his arrival 30-40 other people had arrived. Smt. Dulari came shortly after his arrival. It is wrong to say that the accused was apprehended at the instance of Dulari. He so stated in the examination in chief in the context of formal arrest of the accused by the police. Cross-examined he stated that, prior to his arrival 30-40 other people had arrived. Smt. Dulari came shortly after his arrival. It is wrong to say that the accused was apprehended at the instance of Dulari. He so stated in the examination in chief in the context of formal arrest of the accused by the police. After telephoning S. P. (City) he went home and from there to the police station with a view that in case any formality of writing etc. was required, he may be of some help. The Station Officer Civil Lines Manak Singh (P. W. 6) asked him to write report saying that the old lady was not literate. He scribed the report in the outer Varandah of the police station. Names of the witnesses were dictated by Dulari and he wrote the parentage as he knew them all. He had reached the police station at about 10. 00 p. m. After returning from the police station he directly went home. His statement was not recorded in the night. ( 20 ) P. W. 3 Prem Dutt Mishra deposed in his examination-in-chief that or the day of incident at about 7. 30 p. m. he was on the stairs of the temple, when he heard the shrieks of a girl coming from inside the temple. Reaching inside, he saw accused Vinod coming from the inner portion of the temple. Enquiring as to what he was doing there, he caught Vinod. Going further inside he saw Renu lying unconscious with her underwear entangled in one leg. The accused with folded hands begged forgiveness and requested to be let off which aroused his suspicion, and going near the girl he found her dead. On his alarm Indrajit, Santosh, Smt. Dulari and several others reached there, two constables also arrived there all of sudden. He told all of them about the incident and also about the accused begging for mercy. Cross-examined he stated that Shiv Temple in question has been got built by him, his house is only 8 to 10 feet away from the temple. There are two doors in the temple one towards east and the other west. There was no priest in the temple during the days of incident. He heard only one shriek and not the sound of weeping. There are two doors in the temple one towards east and the other west. There was no priest in the temple during the days of incident. He heard only one shriek and not the sound of weeping. He was all alone when he caught the accused emerging from inside the temple in a perturbed con- dition, preceded by the shriek of a girl. The accused tried to get himself freed but since he had caught him by the backside collar of shirt, he could not succeed. Soon thereafter the other witnesses arrived, he clarified that during his examination-in-chief he had stated the time of occurrence as 8. 30 p. m. which has wrongly been recorded as 7. 30 p. m. He admitted Ex. Kha, 1 to be his statement under Section 161, Cr. P. C. to the effect that he heard the sound of weeping and shouting of Renu from inside the temple. ( 21 ) P. W. 4 Sardar Indrajit Singh stated that on the day of occurrence at about 8. 30 p. m. he was coming home from his factory to take food. On his way near the temple gate, he saw a crowd. Going nearer he saw Vinod begging forgiveness from the people surrounding him saying that he has for the first time committed such mistake and may be excused. He (witness) saw Renu lying dead with underwear in her one leg. He denied that anyone objected to Vinod keeping his tea stall in the Nehru Park adjoining the temple. He and others who had apprehended the accused Vinod handed him over to the constables who arrived about 15 minutes after the incident. His statement was recorded the next day. He denied that he stated to the police that he had gone towards temple after taking food when he went there seeing the crowd. He learnt from the admission made by the accused that he has killed Km. Renu. He left for home after some time. He had gone to the police station in the night at about 11. 30 p. m. on being called by the police to hear the tape recorded confessional statement of the accused. ( 22 ) AS already stated above, admittedly deceased Renu and her young brother Gopal had lost their parents some time back and they were living with Smt. Dulari, their grandmother. 30 p. m. on being called by the police to hear the tape recorded confessional statement of the accused. ( 22 ) AS already stated above, admittedly deceased Renu and her young brother Gopal had lost their parents some time back and they were living with Smt. Dulari, their grandmother. The family occupying their house in the vicinity of the temple, thus consisted only of three persons and old lady, a minor girl aged about 12 years, and a boy still younger to her. On the point of the appellant Vinod visiting the house of informant Smt. Dulari shortly before the occurrence, there is uncontroverted evidence of Smt. Dulari herself to the effect that one Sajjan Sharma who was a friend of late Brij Mohan, the father of Km. Renu and Gopal used to often visit their place and spend some money on the two children, along with Vinod, came to their house near about 8. 30 p. m. He got purchased biscuits and milk by giving money to Vinod. Meanwhile she prepared tea and after consuming the same Sajjan Sharma and Vinod left, while she went to a neighbouring house to watch T. V. The cross-examination of this witness has not yielded anything which may go to indicate that she is trying to set up imaginary story about the visit of Vinod in the company of Sajjan Sharma to the house of informant Smt. Dulari. No adverse inference can be drawn from the non-production of Sajjan Sharma in the witness-box when the circumstances also go to support the version of Smt. Dulari. He being an old friend of the father unfortunate children during his life time, it was but natural for him to occasionally visit them and also to provide biscuits, snacks etc. considering their age. The appellant Vinod having his tea stall nearby, there was no wonder, if Sajjan Sharma while visiting the children, took him to the said place, obviously to facilitate supply of eatables to the children. considering their age. The appellant Vinod having his tea stall nearby, there was no wonder, if Sajjan Sharma while visiting the children, took him to the said place, obviously to facilitate supply of eatables to the children. ( 23 ) THE plea that appellant Vinod would not accompany Sajjan Sharma to the house of Smt. Dulari because of the earlier incident of Marpit between him and the two sons of Dulari also does not cut much ice in view of the fact that there is nothing to show that even after the death of Brij Mohan, there persisted animus for Vinod so as not to accompany Sajjan Sharma to the place of Dulari. Even if he had such animus probably he would have welcomed the opportunity to visit the informants house, which could have provided him an opportunity to take revenge besides satisfying his lust. In this connection it will also be worth while to mention that on a search of the tea stall of the appellant, the Investigating Officer recovered also a lot of obscene literature vide memo Ex. Ka. 11. Also these above circumstances and the evidence of the P. W. 1, thus leave no room of doubt about the fact that appellant Vinod had visited the house of Smt. Dulari shortly before the incident, near about 8. 30 p. m. with Sajjan Sharma and while departing from the said place he came to know that the two children Km. Renu and Gopal will be all alone in the house, their grand-mother going to watch T. V. in a neighbours house. During those days the Hindi News on the T. V. used to start from 8. 40 p. m. consequently there was occasion for Dulari to go out of her house for the said purpose, and the house and the tea stall of the appellant Vinod also being in the near vicinity of the said place, he could have easily seen Smt. Dulari going out of her house. This thus provided ample opportunity to the appellant to decide to take Km. Renu out of her house and fulfil his nefarious design. This thus provided ample opportunity to the appellant to decide to take Km. Renu out of her house and fulfil his nefarious design. ( 24 ) AS to the factum of the appellant Vinod visiting the house of Smt. Dulari again, within a few minutes after her departure to the neighbours house, also we have cogent evidence of informant Dulari to the effect that while she was watching T. V. Gopal came to her and informed that Vinod has taken Renu with him. This naturally caused her anxiety and she left watching T. V. and went to her home in a bid to search the girl. Meanwhile she heard noise from the side of temple and going there saw Km. Renu lying dead and Vinod apprehended by the witnesses and other people of the locality. The learned Counsel for the appellant has assailed this part of evidence of Dulari relied on by the prosecution, on the plea that it is hear-say and Gopal alleged to have had personal edge of this matter has not been examined. It would however, be found from the record as well as observations of the learned trial Court that Gopal was brought to the witness-box but in view of his tender age and lack capacity to state on oath the trial Court decided not to record his statement. It is thus true that we do not have the advantages of the testimony of Gopal in this regard. It still remains a fact that Smt. Dulari has stated on oath about the information given to her by Gopal that Renu had been taken away by Vinod in her absence and rushing immediately to her home, she did not find Renu there and within a few minutes she saw Renu lying dead in nearby temple and Gopal apprehended inside the said temple. There thus, in our opinion, is sufficient material to prove that it was appellant Vinod and none else who took Km. Renu away from her house taking advantage of the presence of the said girl with her younger brother of very tender age alone in the house, in the absence of their grand-mother Smt. Dulari. ( 25 ) NOW this brings us to the third phase of the incident and the main one, regarding the shrieks of a girl, later found to be Km. ( 25 ) NOW this brings us to the third phase of the incident and the main one, regarding the shrieks of a girl, later found to be Km. Renu, being heard from the inner portion of the temple around 8. 40 p. m. followed by the appellant Vinod seen emerging from the inner portion of the temple in a perturbed condition, being caught by Prem Dutta Mishra, and on his noticing Km. Renu lying dead with her underwear entangled in one leg, pleadings for mercy and requesting to be let off saying that this was first ever mistake, and repeating the same before the other witnesses of the locality who arrived on alarm being raised. ( 26 ) THE most important witness on this point, Prem Dutt Mishra P. W. 3 has been quite categorical and forthright in his testimony. He being the person responsible for constructing the temple and having his house at a distance of only 8-10 feet, it was quite natural for him to have been present near the temple to be able to see all the abovementioned incident and to apprehend the appellant. He has specifically stated that he was on the stairs of the temple when the shrieks of a girl from inside the temple attracted his attention. Immediately thereafter he saw Vinod emerging from the temple in a very perturbed condition. It was quite natural for him to be suspicious and catch hold of Vinod who was trying to escape from the lonely temple, to ascertain as to what he was doing there and how there was shriek of a girl heard from inside. The contention that being a young man aged about 23 years, he could not have been caught by Prem Dutta an elderly person aged about 52 years and even if caught, would have got himself freed by pushing and assaulting Prem Dutta, is hardly tenable. There is nothing to show that the accused is specially of stout built or Prem Dutta is of frail body. In fact 52 years is not the age when a man could not catch hold of a person aged about 22/23 years. Then in this case there is evidence of P. W. 3 that on being caught and questioned, the accused tried to get himself freed but as he had caught him from the back of his collar he could not succeed. Then in this case there is evidence of P. W. 3 that on being caught and questioned, the accused tried to get himself freed but as he had caught him from the back of his collar he could not succeed. As to the contention in statement under Section 313, Cr. P. C. of the accused that he was apprehended from his house about 7/8 hours after the incident at about 4. 00 a. m. , no suggestion has been made in cross-examination to the P. W. 3 or the other witnesses of fact. There is also not the slightest suggestion of any enmity of this witness with the appellant, because of which he could have taken undue interest in fabricating the story of spot arrest to falsely implicate him. ( 27 ) TOPOGRAPHY of the temple as evidenced from the site plan prepared by the Investigating Officer as well as the statement of P. W. 3 Prem Dutta Mishra also does not show the possibility of any other person being present at that time in the temple or having escaped from the precincts of the temple. If there was any such third person as suggested by the appellant at the time of incident inside the temple, and the said person tried to escape after committing murder preceded by the shrieks of the victim, the P. W. 3 who was near the premises of the temple, and others who also rushed towards the scene of occurrence on hearing his alarm, would not have missed to catch and apprehend such person. The defence theory of the arrest of the appellant being stage managed or the suggestion that he might have with an innocent purpose gone into the temple and became a victim of circumstances thus, deserves to be totally rejected. ( 28 ) THE conduct of the appellant, on his being apprehended shortly after the shrieks of the dying girl were heard, as proved by the testimony of the P. Ws. 1 to 4, is also indicative of the only hypothesis that it was the appellant who committed rape on Km. ( 28 ) THE conduct of the appellant, on his being apprehended shortly after the shrieks of the dying girl were heard, as proved by the testimony of the P. Ws. 1 to 4, is also indicative of the only hypothesis that it was the appellant who committed rape on Km. Renu, and annoyed by her resistance or, to elaminate the chances of his being held responsible for the same, he committed her murder by strangulating to death, and on being caught while trying to run away from the spot, he begged forgiveness and prayed to be let off, indicating that he alone was the purpetrator of this crime. ( 29 ) THE fact that the accused was seen by P. W. 3 Prem Dutt Mishra emerging from the inner portion of the temple in a bid to escape shortly after the shrieks of the hapless girl were heard, that he (the accused) looked perturbed and on being caught, and enquired as to what he was doing in the tem ple, he tried to free himself and run away are relevant under Sections 6 and 8 of the Evidence Act as facts forming part of the same transaction, as also a subsequent conduct of the accused. Equally relevant are the utterances made by the accused on being apprehended, as well as or the dead body of Km. Renu being spotted in the Parikrama of the temple. Besides the statement of P. W. 3 Prem Dutt to the effect that the accused with folded hands begged for mercy and prayed for being let off, there is also clear testimony of the P. W. 4 Sardar Indrajit Singh to the effect that he was begging forgiveness from the people who had assembled saying that it was his first ever mistake, and that of P. W. 1 Smt. Dulari that the accused was begging forgiveness by folding his hands to every one of the locality who had arrived there. Nothing substantial has come out in the cross-examination of these witnesses to show that they are not telling the truth. Merely because Santosh Kumar has stated that when he reached the spot the accused who had already been caught was not staying, the above testimony of P. Ws. 1, 3 and 4 cannot be doubted or brushed aside. Nothing substantial has come out in the cross-examination of these witnesses to show that they are not telling the truth. Merely because Santosh Kumar has stated that when he reached the spot the accused who had already been caught was not staying, the above testimony of P. Ws. 1, 3 and 4 cannot be doubted or brushed aside. It is not the case of the prosecution that Santosh Sharma was the first to arrive after Prem Dutt Mishra or his arrival preceded that of other witnesses. In fact, Santosh Kumar was watching T. V. when he heard the alarm. Switching off the same and going to the place of occurrence must have taken some time and under these circumstances it is quite likely that the accused had already pleaded for mercy with his captors. ( 30 ) THE above statements pleading for mercy and praying to be let off on the plea of it being his first ever mistake, being statement of the accused Vinod made so shortly after the shrieks of the victim and her murder, as to form part of the same transaction, are relevant facts under Section 6 of the Evidence Act, and provide tangible and reliable evidence indicating that the accused and none else was responsible for the rape and murder of Km. Renu. ( 31 ) THE contention of the learned Counsel for the appellant that those statements no being admission or guilt within the meaning of Section 17 of the Evidence Act cannot be utilized as evidence against the appellant, is beside the point, in view of the fact that these statements of the accused are relied on by the prosecution not as admission or confession. rather as evidence of a relevant fact forming part of the same transaction, and subsequent conduct of the accused person. For this reason AIR 1939 PC 47 : ( (1939) 40 Cri LJ 364) defining the word confession does not help the accused appellant, nor does it in any way go to diminish the evidentiary value of the relevant facts under Sections 6 and 8 of the Evidence Act brought on record. ( 32 ) IT has also been contended by the learned Counsel for the appellant, that even the fact of the appellant being apprehended on the spot, and the statements attributed being established, instead of indicating his involvement in the rape and murder of Km. ( 32 ) IT has also been contended by the learned Counsel for the appellant, that even the fact of the appellant being apprehended on the spot, and the statements attributed being established, instead of indicating his involvement in the rape and murder of Km. Renu, it is indicative of his innocence. According to him the reaction even of an innocent person placed in the circumstances in which the accused appellant was placed on the spot, will be the same, and all that he would do would be to beg for mercy. This contention however, does not impress us because the first reaction of an innocent person will be to disclaim the incident, and to vociferously proclaim the purpose and circumstances of his presence on the spot of the occurrence. In the instant case the accused did not do any such thing rather, was looking perturbed and nervous while trying to escape, and on being caught had first tried to free himself and run away, and when confronted with the corpse of the deceased, begged for mercy and being let off, saying that it was his first ever mistake. This certainly was not the conduct of an innocent person visiting the temple in the normal course, for worship or any other similar purpose. ( 33 ) THE criticism of the prosecution story has also been made and its version assailed or the ground of non-medical examination of appellant Vinod and absence of any injuries of his person. It is true that medical examination of the appellant was not got made and this, raises a presumption that there were no injuries on any part of his body, but that doer not rule out his involvement in this crime. Considering the fact that victim was girl of tender age hardly any violent resistence could have been made, so as to cause injury on the private parts of the accused. Then in this case the intercourse does not appear to have been complete in literal sense rather, only penetration, that too hurriedly, had been made as is apparent from the fact that no seminal stains or human hair were found, in the external or internal part of vagina of the deceased. Under these circumstances the accused also cannot claim to have been prejudiced because of non-medical examination of his genital organ to determine whether or not smagma was present. Under these circumstances the accused also cannot claim to have been prejudiced because of non-medical examination of his genital organ to determine whether or not smagma was present. The presence or absence of smagma would have been relevant and its presence would have ruled out commission of crime by the accused, in case he had succeeded in going beyond the stage of mere penetration. The facts of this case thus are entirely different from those in Rahim Bux v. State of U. P. , reported in AIR 1973 SC 343 : (1972 Cri LJ 1260 ). ( 34 ) YET another ground of challenge to the correctness of the prosecution story by the appellant is the authorship of the FIR and its veracity. It is contended that the F. I. R. as per evidence, was dictated at the police station by the Investigating Officer and not by informant Smt. Dulari, that it did not come in existence at 10. 45 p. m. on 12-11-1991 as alleged by the prosecution, rather was prepared later, in all probability, the next day. Reference in this connection is made to the statement of the P. W. 2 Santosh Kumar that he scribed the FIR at the instance and dictation of S. O. Civil Lines, Aligarh. However in the same breath he stated that he prepared the F. I. R. in the dictation of Smt. Dulari, he of course recorded the parentage of the witnesses whose names were dictated by Dulari. Thus act of incorporation of parentage of the witnesses cannot be said to be an improvement or fabrication. About the role of the Investigating Officer, S. O. Civil Lines, he made it clear in cross-examination that he had asked him to write the report of the informant who was an illiterate woman. As far as the place of scribing the FIR is concerned, it is not the case even of the prosecution that it was prepared on the spot. There was no bar to the FIR being scribed at the police station. About the time of lodging the F. I. R. also there is no reason to disbelieve the prosecution documents. As far as the place of scribing the FIR is concerned, it is not the case even of the prosecution that it was prepared on the spot. There was no bar to the FIR being scribed at the police station. About the time of lodging the F. I. R. also there is no reason to disbelieve the prosecution documents. Simply because on one page of inquest report and on the seizure memo of underwear of the deceased, crime number was not mentioned, the F. I. R. cannot be doubted as document not in existence at that time, more so when we find that along with dead body and the letter of request for post-mortem, all these papers were sent to the Chief Medical Officer. The FIR thus is found to be fully reliable, being the version of the first informant lodged at the police station within reasonable time after the incident, and this also goes to lend credibility to the prosecution version regarding involvement of the accused-appellant in this crime, and the testimony of the witnesses that, he was apprehended while trying to escape from the scene of occurrence, and his conduct after being so apprehended also indicated beyond any shadow of doubt his involvement in the act of rape and murder of Km. Renu. ( 35 ) IN the result of all the above discussed facts, circumstances and the evidence, we find ourselves in full agreement with the learned trial Court that the appellant Vinod on 12-111991, near about 8. 40 p. m. , taking advantage of the absence of her grand-mother Smt. Dulari, took Km. Renu aged about 12 years from her house to the nearby Shiv Temple in Mohalla Ghanshyampuri, Aligarh City which was lonely at that time. There in the Parikrama of the Temple, he committed rape on her, and unable to satisfy his lust, strangulated Km. Renu who shrieked and died. While he was trying to escape from the said place after committing the crime looking perturbed he was noticed by Prem Dutt (P. W. 3) who had heard the shrieks of the girl from the stairs of the temple, and was caught by him from the back of his collar. When questioned as to what he was doing there, the accused tried to free himself but did not succeed. When questioned as to what he was doing there, the accused tried to free himself but did not succeed. On dead body of Renu being spotted inside the temple, the accused begged for mercy and prayed to be let off, pleading that it was his first ever mistake, first to Prem Dutt, and then to others of the locality who arrived on his alarm, including Smt. Dulari the informant and Indrajit Singh (P. W. 4 ). The accused was shortly afterwards taken to the police station where FIR giving all these details of the incident was promptly lodged. ( 36 ) THE chain of events as established by the evidence of the prosecution, the reliability of which cannot be doubted, thus leads to the only hypothesis that accused appellant Vinod is guilty of rape - followed by murder of Km. Renu, and leaves no reasonable ground for any conclusion consistent with his innocence. He thus has rightly been convicted of the offences punishable under Section 302 and 376, I. P. C. and the same deserves to be affirmed. ( 37 ) AS to the sentence awarded for the offence under Section 302, I. P. C. , we, however, feel it is not a case calling for extreme penalty of death. The appellant who was aged about 22 years appears to have taken the victim not to commit murder rather to satisfy his lust. Failure to achieve the same and apprehension of being hauled up for the said crime, appears to have prompted him to commit the murder at the spur of moment. Ends of justice thus, we feel, shall be met by awarding the sentence of imprisonment for life for the offence under Section 302, I. P. C. also, as in regard to the offence under S. 376, I. P. C. But for this modification in sentence, the appeal deserves to fail. ( 38 ) ACCORDINGLY, this appeal is allowed in part. The conviction of the appellant under Sections 302 and 376, I. P. C. , as also the sentence of imprisonment for life awarded under Section 376, I. P. C. are confirmed. The sentence of death awarded under Section 302, I. P. C. is however, modified and converted into imprisonment for life. Both the sentences awarded to the appellant, who is in jail, shall run concurrently. ( 39 ) THE reference for confirmation of the death sentence is rejected. The sentence of death awarded under Section 302, I. P. C. is however, modified and converted into imprisonment for life. Both the sentences awarded to the appellant, who is in jail, shall run concurrently. ( 39 ) THE reference for confirmation of the death sentence is rejected. Order accordingly. .