Judgement B. P. DAS, J. :- The Jail Criminal Appeal is directed against the judgment and order dated 2-12-2004 passed by the learned Addl. Sessions Judge, Rourkela, in S.T. No. 181/15/2003 convicting the appellant-Chhotu alias Purna Chandra Kusal (hereinafter called 'accused') under Sections 302 and 376 of the Indian Penal Code (IPC) for committing rape and murder of a small child of five years of age by name Kajal on the Children's Day of the year 2002. The Death Reference is a reference made by the learned Addl. Sessions Judge, Rourkela, under Section 366 of the Code of Criminal Procedure, 1973 ('Cr. P.C.') hereinafter) for confirmation of the sentence of death awarded to the appellant under Section 302 of the Indian Penal Code ('IPC' in short) by the judgment and order dated 2-12-2004 passed in S.T. No. 181/15/2003. The condemned convict has also filed the aforesaid Jail Criminal Appeal challenging the aforesaid judgment and order of conviction and sentence passed by the trial Court. Both the Death Reference and the Jail Criminal Appeal having given rise to common questions of fact and law were heard analogously and are being disposed of by this common judgment. 2. Briefly stated, the case of the prosecution is : Accused-appellant Chhotu alias Purna Chandra Kusal and P.W. 5-Brunda Jaiswal, the mother of the deceased Girl-Kajal, were neighbours and were residing in a Basti adjoining the Railway Line near Bondamunda Railway Station Cabin 'D'. On 14-11-2002 at about 5 p.m., P.W. 5 left her house for the local market to sell the coal collected from the side of the railway line, leaving behind her son (P.W. 10) in the house and her deceased-daughter aged about 5-7 years, who was playing with the accused. After 15-20 minutes, P.W. 5, the mother of the deceased girl, returned to her house, found that there was no electricity and also could not find her daughter. Then she along with her son (P.W. 10) searched for the deceased but could not find her. After some time, P.W. 5 learnt that the dead body of her daughter was lying on the railway track. She rushed to the spot and saw that the dead body of her daughter was lying on the rail track of sick line No. 1 in between two bogies. After some time, P.W. 5 learnt that the dead body of her daughter was lying on the railway track. She rushed to the spot and saw that the dead body of her daughter was lying on the rail track of sick line No. 1 in between two bogies. On getting information, the police arrived at the spot, registered one U.D. case and made inquest over the dead body and sent the dead body for post-morterm examination. From the post-mortem report, it was found that the girl was raped and murdered by throttling and accordingly FIR was drawn up on the basis of the inquiry conducted in the U.D. case and investigation was taken up. During the course of investigation, the police arrested the accused-appellant, who on interrogation confessed to have committed the murder of the deceased and then led the I.O. to the place adjoining one Engineering Office of the S.E. Railway at Bondamunda surrounded by old asbestos wall and pointed out the place where he had committed the rape and murder of the deceased. The I.O. noticed the blood-stain on the abestos boundary wall and collected the same. The accused confessed to have kept the wearing apparel of the day of occurrence at his residence and gave recovery of the same, which was seized by the police. Similarly the wearing apparel of the deceased was also seized. Thereafter wearing apparel of both the deceased and the accused were sent to the Forensic Laboratory along with the soil and sample soil from the spot. On examination it was found that the frock of the deceased and the pant of the accused were contaminated with blood-stain, the chadi of the deceased and her vaginal swab had blood-stain coupled with semen. After investigation charge-sheet was submitted. 3. The plea of the accused was one of denial. The prosecution in order to prove its case examined as many as 19 witnesses, exhibited 18 documents and marked 13 Nos. of material objects. 4. The learned Addl. Sessions Judge considering the evidence on record and taking the circumstances into consideration in the absence of any eye-witness to the occurrence and as the deceased was last seen with the accused and mainly relying upon the evidence of P.Ws. of material objects. 4. The learned Addl. Sessions Judge considering the evidence on record and taking the circumstances into consideration in the absence of any eye-witness to the occurrence and as the deceased was last seen with the accused and mainly relying upon the evidence of P.Ws. 5, 10 and 12 came to the conclusion that the deceased was killed after being raped by the accused and the accused in order to wipe out the evidence put the dead body on the railway track. Ultimately the trial Court found that the prosecution could well prove its case against the accused under Sections 376(2)(f) and 302, IPC and accordingly held him guilty thereunder. Relying upon the decision of the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 , as well as some other decisions, the trial Court finding the case to be a rarest of rare case wherein the sentence of death was desirable with a view to deter others from committing such type of atrocity, imposed the extreme sentence of "hanged till death" subject to confirmation by the High Court. The trial Court further directed that the substantive sentence under Section 376(2)(f), IPC shall cease to have any effect in case of confirmation of the sentence of death for the conviction under Section 302, IPC. 5. Mr. Debasis Panda, learned counsel appearing for the accused-appellant, while assailing the order of conviction of the trial Court strenuously argued that the evidence of P.W. 5 cannot be believed as she being the mother of the deceased has stated that she left her house at 5 p.m. while her deceased-daughter was playing with the accused and none else was present there except them. Though P.W. 7 has stated to have accompanied P.W. 5 when she went out to sell coal, the presence of P.W. 7 was not spoken to by P.W. 5. That too, P.W. 10, who is a child witness, though has stated in Court that his sister was playing with the accused and that after departure of his mother the accused took his sister towards the railway track, he has not stated this fact before P.W. 19, OIC, Bondamunda G.R.P.S., who registered the FIR and on the contrary has stated before him that the accused has taken away the deceased on his shoulder. According to Mr. According to Mr. Panda, this witness has no idea either about day, date and month which he admits in cross-examination, his evidence should not at all be taken into consideration. According to him, the evidence of P.W. 12 should not have been taken into consideration by the trial Court in view of his own admission in the Court that he has not stated the fact narrated in Court either to P.W. 5, who is the mother of the deceased, or to police. Further there is no evidence that the accused was not available during the search of the deceased rather P.W. 9 has stated that the accused along with one Gudi and Ghasi (son of P.W. 5) had gone to her house around 8 p.m. to inform her and her husband regarding the occurrence. Except the statement leading to recovery of his own wearing apparels (Ext. 17) there is no evidence on record that it was the accused who pointed out the place of occurrence during police custody or that blood-stains found on asbestos wall were found at his instance, As regards recovery of his own clothes it is to be noted that the seizure list, Ext. 1 does not indicate any blood-stains on the seized wearing apparels of the accused. The chemical examiner detected microscopic bloodstain of 'A' group from the pant of the accused. Since the blood group of the accused is also of 'A' group this cannot be a circumstance to connect the accused with the alleged crime. Mr. Panda further argued that the finding of the body on the railway track cannot be a link in the chain of circumstances and in cases based on circumstantial evidence the chain of circumstances should be complete and every link in the chain should be established through clinching evidence which must unerringly point to the accused's guilt but this is not the case at hand. The prosecution cannot rest its case on surmises and conjectures but must establish through cogent evidence the guilt of the accused. He also argued that there is delay in lodging the FIR and no FIR was lodged against the accused immediately either by P.W. 5 or anyone else and there was no material to justify the registration of a case against the accused. With regard to imposition of death penalty, Mr. He also argued that there is delay in lodging the FIR and no FIR was lodged against the accused immediately either by P.W. 5 or anyone else and there was no material to justify the registration of a case against the accused. With regard to imposition of death penalty, Mr. Panda, learned counsel for the appellant, submitted that the law relating to imposition of sentence of death has been laid down by the Apex Court as to it being imposable only in the rarest of rare cases and in the instant case, even there is no convincing evidence that after departure of P.W. 5, the accused was with the deceased till the time of her death. The version of P.W. 10, who is a child witness, that he had seen the accused taking the deceased to the railway track was not disclosed by him to the police during investigation and only on the basis of such statement of P.W. 10, death sentence should not be imposed. Besides the mitigating circumstances against the accused is that he is a young man of 30 years and there is all probability of his being reformed and rehabilitated and there is no special or extraordinary circumstance by which this case can be treated in a separate manner to bring it within the fold of rarest of rare cases and thus extreme penalty of death sentence could not have been imposed and the sentence of death should not be confirmed. 6. Learned counsel for the State while supporting the judgment and order of conviction refuted the said argument of the learned defence counsel, Mr. Panda and submitted that the judgment and order of conviction passed by the trial Court is well founded. On the contrary he urged that the accused was holding the victim at the time of departure of her mother, P.W. 5, from her house and P.W. 10, who is the elder brother of the deceased, found the accused moving towards railway track with his sister and after return of P.W. 5, she did not notice her daughter or the accused in the vicinity. Learned counsel for the State drew our attention to the evidence of P.W. 12 that while he was returning home, he found the accused near the Engineering Office running near the asbestos storing place holding something on his hands. Learned counsel for the State drew our attention to the evidence of P.W. 12 that while he was returning home, he found the accused near the Engineering Office running near the asbestos storing place holding something on his hands. About 6.30 p.m. P.W. 6 and others, while engaged in their duty found the dead body of the victim girl lying on the rail (track) between two wagons, which could be seen from the photographs, vide M.Os. II and III and during search of the victim by her mother and brother the accused was not available but he returned back home at about 9 p.m. and asked P.W. 5, mother of the deceased, to stop crying or else she would also be killed. The evidence of P.W. 5, according to the State Counsel, cannot be overlooked. Adding to this, according to the learned counsel for the State, the accused while in police custody pointed out the place of occurrence, i.e. near Engineering Store (Office) having absestos wall and human bloodstains could be found on the asbestos wall. At his instance, his wearing apparels could be recovered and on chemical examination, human blood of 'A' group was found on his full pant. Human blood was also found in the frock of the deceased baby. Human blood was also found on the sample earth near the Engineering Office, as pointed out by the accused so also on the asbestos wall, which was near the railway track on which the dead body was left. While defending the judgment of the trial Court, learned counsel for the State further submitted that the evidence of P.Ws. 5, 10 and 12 cannot be disbelieved in any manner and the trial Court had rightly held that there was no reason as to why P.W. 5 should depose against the accused and P.W. 10, who is the brother of the deceased and son of P.W. 5, corroborated the version of P.W. 5 and stated that the accused had gone to the railway track along with the deceased wherefrom ultimately her dead body was recovered. According to the learned counsel for the State, rape is one of the most heinous crime and that has been perpetrated on a child of 5-7 years and on a day which is observed as Children's Day and that too, the diabolic act reaches the lowest level of the humanity when the rape is followed by murder and that is what happened in this case. It is further stated that in view of the positive finding of the trial Court basing on positive evidence and material, there is nothing to interfere with the judgment of the trial Court and the sentence of death passed should not be interfered with and should be confirmed and as such, this death reference ought to be confirmed and the appeal by the appellant being devoid of merit should be dismissed. 7. While examining the rival contentions raised at the Bar, a detailed scrutiny of the evidence is necessary in order to arrive at a decision regarding the correctness or otherwise of the judgment of the trial Court. The medical evidence is adduced by the prosecution through P.W. 16-Dr. Dileswar Jit, who conducted autopsy over the dead body and found the following injuries, which are according to him, are ante-mortem in nature. External Injury : I) One abrasion grazing type irregular margin found in lower 2/3 of labia majora. II) Lacerated wound on both labia majora and hymen. III) Lacerated wound of vagina at posterior fornix punctured having opening of 2" x ½" x ½". IV) Abrasion ½" x ¼" x ¼" right side of neck, 1" lateral to mid line of neck. V) Abrasion ½ x ¼" x ¼" left side of neck 1" lateral to mid-line. The doctor opined that the death of the deceased was homicidal within 12 to 24 hours and the cause of death was asphyxia and haemorrhagic shock. The mode of death was described due to rape and throttling. The evidence of the doctor has also been corroborated by the post-mortem report (Ext. 8). The medical evidence further disclosed that on police requisition, P.W. 16 on 18-11-2002 examined the accused to find inflammation of his glance penis (prepuce), frenum were torn, smear collected from glance and sent to laboratory so also the blood sample. The evidence of the doctor has also been corroborated by the post-mortem report (Ext. 8). The medical evidence further disclosed that on police requisition, P.W. 16 on 18-11-2002 examined the accused to find inflammation of his glance penis (prepuce), frenum were torn, smear collected from glance and sent to laboratory so also the blood sample. In his cross-examination, the doctor has stated that at least seven days will be required for healing of such type of injury on the private part of the accused. It is further stated that inflammation on genitals could be caused by the deceased. On the suggestion of the defence during cross-examination, he has stated that in case of contact with force, inflammation on genital is possible so also in case of moisturizing. The aforesaid evidence of P.W. 16 has not been seriously disputed by the appellant. The evidence of the doctor has also been corroborated by the post-mortem report (Ext. 8). The probative materials relied on by the prosecution in this case, apart from the medical evidence of P.W. 16, are basically on P.Ws. 5, 10, 12 and 19. P.W. 5, who is the mother of the deceased, has deposed in her evidence that the accused-appellant was her neighbour and he was living with his mother. He was in good terms with her. He was addressing her as Aunt. On the date of occurrence at about 5 p.m. she left her house to sell cooking coal leaving behind her son, Bikas aged about 12 years, P.W. 10 and Prakash aged about 9 years (not examined). At that time her deceased-daughter was playing with the accused in the open space between her house and P.W.D. office at Kunti Basti. At the time of departure, the accused told P.W. 5, that "A Phuphu Dekh Tera Beti Rorahe" (see your daughter is crying). He was with her daughter when she left home. None else was present there except the persons named above. Twenty minutes thereafter she returned back home and did household work. At about 6.30 p.m. electricity went out, she asked her son, Prakash to search for the deceased but he could not trace her out. After some time she went out of her house in search of her and at that time the RPF Constable came and said "Brunda to Jhia Line re Soichi" (Brunda your daughter is sleeping on the railway track). After some time she went out of her house in search of her and at that time the RPF Constable came and said "Brunda to Jhia Line re Soichi" (Brunda your daughter is sleeping on the railway track). Then she rushed to the railway track but could not find her. She called her brother-in-law, Bhola and went to the Linesman, who informed her that her daughter would be available under the pipal tree of No. 1 Line, she rushed to the spot and found her daughter lying dead on the rail (track) and some people had gathered. Thereafter, she sent her son to inform her husband. At about 9 p.m. the accused reached her house and told her to stop crying or else she will be killed ("TOTE BI MARIBI"). It was further stated by P.W. 5 that the antecedent of the accused was not good as he is an alcoholic and misbehaves the girls and women. 8. Learned counsel for the defence argued that the utterance of the accused "Tote bi Maribi" does not mean that the accused would kill P.W. 5. But the language uttered therein "Tote bi Maribi" means he will kill her. The statement of the accused does not, in our considered opinion, exonerate him in any manner. Before going through the evidence of P.W. 10, let us have a look at the evidence of P.W. 9, who is the step-mother of the deceased (third wife of Sankar Jaiswal. father of the deceased). She has stated in her examination-in-chief that accused, Chhotu informed her that Kajal had been murdered by somebody and thrown on railway track. Thereafter, P.W. 9 enquired about the mother of the deceased. Accused Chhotu expressed his ignorance and told her that Brunda, mother of Kajal, could have throttled her and thrown away her dead body on the railway track. Thereafter, P.W. 9 along with her husband proceeded to the spot and found that Kajal had been murdered and thrown on the railway track. During cross-examination, nothing was brought out from her mouth to dislodge her statement that the accused told her that P.W. 5 might have throttled Kajal and thrown her dead body. Thereafter, P.W. 9 along with her husband proceeded to the spot and found that Kajal had been murdered and thrown on the railway track. During cross-examination, nothing was brought out from her mouth to dislodge her statement that the accused told her that P.W. 5 might have throttled Kajal and thrown her dead body. This statement goes unrebutted and from her statement it is quite clear that the accused reached her house at 8 p.m. and informed regarding the death of Kajal as well as, told her that P.W. 5 might have throttled her and thrown the dead body on the railway track. Till that time when the body was lying on the railway track, the statement of the accused before P.W. 9 that the mother of the deceased might have throttled her and thrown indicated that he had the knowledge of the death of the baby due to throttling, which was confirmed in the post-mortem report. Subsequently, the statement of the accused goes to show that he knew the cause of death of the deceased before even the postmortem was conducted. The evidence of P.W. 9 and P.W. 5 if read together it will certainly point towards the guilt of the accused. 9. Now let us have a look at the evidence of P.W. 10, who is the brother of the deceased and aged about 13 years. He has deposed that her mother had gone to sell cooking coal and he was lying in his courtyard and his sister, Kajal was playing with the accused. After departure of his mother, the accused took his sister towards the railway track. Sometime thereafter his mother returned home and searched for her but could not trace her. Some time thereafter her dead body was found lying on the railway track. During the course of cross-examination he stated that he did not know what is the month coming before November or how many days consists the month of November. He stated that he also did not know how many weeks made the month of November and he had no idea about day, date and month. He has also stated that neither he knows the birth day of Mahatma Gandhi nor the date of birth of his deceased-sister Kajal nor his own date of birth. He stated that he also did not know how many weeks made the month of November and he had no idea about day, date and month. He has also stated that neither he knows the birth day of Mahatma Gandhi nor the date of birth of his deceased-sister Kajal nor his own date of birth. The defence has miserably failed to dislodge the evidence of P.W. 10 regarding the accused taking Kajal towards the railway track. From the evidence of P.Ws. 5 and 10 it is crystal clear that P.W. 5, i.e.. mother of the deceased last saw Kajal in the company of the accused, thereafter P.W. 10 saw the accused taking away Kajal. The evidence of P.W. 5 is entirely corroborated by P.W. 10. The defence makes a serious objection to believe the evidence of P.W. 10 being a child witness. Further it is argued that on the basis of the child witness, no death penalty can be imposed. Prior to recording the evidence of child witness, P.W. 10, the Additional District Judge, Rourkela asked him certain questions and recorded that the witness understood the questions and then gave rational reply. The Additional District Judge has questioned him as to whether he had ever taken admission in school, how many brothers and sisters he has, how many mothers he has, are they staying together in one house or separately and with whom his father is living. He understood all the questions and has given rational reply. Only after those test questions, the trial Court found him to be a competent witness and permitted him to be examined on oath as one of the witnesses. Only because the witness could not answer how many days makes the month of November, what is the date of birth of Mahatma Gandhi and the date of His birth so also of his deceased-sister, his evidence which throws sufficient light on the act of the accused, cannot be discarded. 10. It is well settled that the trial Courts should record their opinion that the child witness understands the duty of speaking truth and why they think so. The trial Court has questioned the witness and was satisfied with his rational replies. Failure on the part of the witness to answer the questions asked during his cross-examination is due to the fact that he is illiterate. The trial Court has questioned the witness and was satisfied with his rational replies. Failure on the part of the witness to answer the questions asked during his cross-examination is due to the fact that he is illiterate. However, the Court has to accept the evidence of a child witness with caution but when such evidence is substantially corroborated by other prosecution witnesses, one can safely conclude that the child witness has spoken the truth. Here is a case where the mother of the deceased has stated that she has seen Kajal last with the accused. Thereafter, other part of the story that the accused took Kajal towards railway track has been said by P.W. 10. That too, there is no challenge by the defence to the assessment of mental capacity of the child witness arrived at by the trial Court in this case. So there is no reason to disbelieve the evidence of P.W. 10. Let us have a look at the evidence of P.W. 12, who is stated to have seen the accused running away near the asbestos storing place towards railway line No. 1 holding something on his hands at about 6.30 p.m. on 14-11-2002. The accused was wearing one navy blue pant and one jacket. One hour thereafter he heard that the dead body of the deceased was lying on the railway track No. 1. He went there and found the dead body of Kajal, daughter of P.W. 5 on the railway track No. 1. The accused also told him on the next day that Bunda, P.W. 5 had murdered her daughter and thrown her on the railway rack. During the course of cross-examination, nothing was brought out to dislodge his evidence, save and except, he has not stated this fact to the police. But at the same time, in the cross-examination, this witness stated that he disclosed this aspect to everybody in the basti in the evening itself and he had seen the accused from a distance of 3 to 4 feet. So the part of his statement that the accused told him that Bunda had murdered her daughter and thrown her on the railway track No. 1 was not challenged by the defence nor anything was elicited from the mouth of this witness to dislodge his statement. So the part of his statement that the accused told him that Bunda had murdered her daughter and thrown her on the railway track No. 1 was not challenged by the defence nor anything was elicited from the mouth of this witness to dislodge his statement. From the statement of this witness and statement of P.W. 9, it is clear that the accused made and tried to spread a story that P.W. 5, mother of the deceased, killed her daughter, Kajal. P.W. 19, O.I.C. of Bondamunda P.S., registered the U.D. Case which later on was turned to one under Section 302, I.P.C. and directed the A.S.I., S. K. Das to enquire into the case. On 15-11-2002, P.W. 19 took charge of the enquiry of the case and sent the dead body for post-mortem examination, examined the witnesses and seized the wearing apparels of the deceased received from the doctor after post-mortem examination. In his examination-in-chief, he has stated that during police custody, the accused led him and others after stating to have concealed his wearing apparels at his house and on leading them there bought out his pant and shirt from his house which were seized by him. In cross-examination, on being questioned he had stated that Bikash Jaiswal, P.W. 10 had stated before him that the accused took away the victim on his shoulder. The defence tries to take advantage of this statement and submitted that there is a contradiction between the evidence of child witness, P.W. 10 and this witness because P.W. 10 has stated that the accused along with the deceased went towards the railway line, whereas P.W. 19 stated that P.W. 10 told before him that the accused took the victim on his shoulder. On this discrepancy, we cannot totally discard the evidence of P.W. 10. In his statement under Section 313, Cr. P.C., the accused except denying the fact, has not offered any explanation regarding the fact that he was last seen with the deceased. 11. Learned counsel for the appellant basing upon the judgment of the Apex Court in Bhagawan Singh and others v. State of M. P. ( AIR 2003 SC 1088 ) : (2003 Cri LJ 1262) submits that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. 11. Learned counsel for the appellant basing upon the judgment of the Apex Court in Bhagawan Singh and others v. State of M. P. ( AIR 2003 SC 1088 ) : (2003 Cri LJ 1262) submits that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. But this principle is not applicable to the facts and circumstances of the present case as the order of conviction has been recorded and sentence of death has been awarded. Learned counsel for the appellant relies upon a decision of the Apex Court in Jaharlal Das v. State of Orissa ( AIR 1991 SC 1388 ) : (1991 Cri LJ 1809), wherein the Apex Court held as follows :- "Where the circumstance that was relied on by the prosecution namely that the accused and the deceased were last seen together was not proved beyond doubt nor was it mentioned in the inquest report, the recovery of dead body at the instance of accused was also not proved nor it was mentioned in the inquest report as to how the body was discovered and there was no panchanama made under S. 27 of Evidence Act of the recovery of body, the doctor who examined accused stated that there was no sign of recent sexual intercourse or such intercourse within one hour of his examination, the accused was entitled to acquittal on benefit of doubt." In the said decision, the Apex Court relying upon the decision in Hanumant v. State of Madhya Pradesh, reported in AIR 1952 SC 343 , held that the circumstantial evidence in order to sustain the conviction must satisfy three conditions. (i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) Those circumstances should be of a definite tendency unerrigenly pointing towards the guilt of the accused; and (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 12. In the case at hand, the evidence of P. W. 5 clearly indicates that the appellant was present with the company of the deceased when P. W. 5, mother of the deceased left her house. Unrebutted evidence of P. W. 10 shows that the deceased had gone along with the accused towards the asbestos storing place. The body of the deceased was found within a very short time after departure of the accused and the deceased from the house of P. W. 5. The post-mortem report of the deceased as well as the evidence of the doctor shows that it is a case of asphyxia due to throttling and rape on the deceased. The medical examination on the accused shows that there is inflammation in his private part. No explanation has been offered nor the defence could offer any explanation regarding cause of the said inflammation, save and except, only suggesting it may have occurred due to fall. While dealing with a case based upon circumstantial evidence, law is well established that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Here is a case where there is no place for conjectures and suspicion, as the circumstances taken cumulatively, clearly shows the chain to be so complete that there is no escape from the conclusion that the crime has been committed by the accused. In case of State of U. P. v. Satish (2005) 30 OCR (SC) 663 : (2005 Cri LJ 1428), the Apex Court in paragraph 22 held as follows :- "22. In case of State of U. P. v. Satish (2005) 30 OCR (SC) 663 : (2005 Cri LJ 1428), the Apex Court in paragraph 22 held as follows :- "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW-2." In the case at hand as per the evidence of P. W. 5, she left for selling cooking coal at about 5 p. m. when her deceased daughter was with the accused and she returned back 15-20 minutes after and did not find her daughter. In this case the time gap is so small and the evidence of P. Ws. 9, 10 and 12 are positive enough to point towards the guilt of the accused. So on evaluation of the evidence and the entire materials on record, the irresistible conclusion is that the girl, Kajal, met a homicidal death due to rape and throttling and the condemned prisoner (present appellant) is the perpetrator of the heinous crime. 13. Now the question arises whether the aforesaid occurrence comes within the ambit of rarest of rare cases and warrants the extreme penalty known as 'sentence of death. Learned counsel for the State submits that considering the age of the deceased girl, who is aged about 5-7 years and became a victim of barbaric and inhuman act of the appellant and the same is one of the most depraved acts. As observed in the case of State of U. P. (supra), the diabolic act reaches the lowest level of the humanity when rape is followed by murder. As observed in the case of State of U. P. (supra), the diabolic act reaches the lowest level of the humanity when rape is followed by murder. The iniquitous flagitious acts become abonimal (sic) when the victim is a child. So in such a case, only capital punishment will and none else would meet the ends of justice. 14. On the other hand, Mr. Panda, learned counsel for the appellant, relying upon the decisions in Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ) and Machhi Singh v. State of Punjab, 1983 (3) SCC 470 : ( AIR 1983 SC 957 ) argued that the following questions might be asked and answered to test the determination of rarest of the rare case. The following guidelines which emerge from Bachan Singh case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises :- (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances as to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggarvating and the mitigating circumstances before the option is exercised. 15. In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. 15. In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances : (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community. The aforesaid decisions of the Apex Court in Bachan Singh and Machhi Singh (supra) will not in any manner help the appellant because of the simple reason that in the case at hand, the victim is a child of five years. On the other hand, the Apex Court in Ram Deo Chauhan v. State of Assam (2000 (5) Supreme Today 312 : 2000 Cri LJ 3954) observed that : "Commission of the crime in a brutal manner or on a helpless child or the woman or the like were held to be such circumstances which justify the imposition of maximum penalty....." 16. Basing upon the facts and circumstances of the case, there is no iota of doubt in our mined that this murder is brutal, coldblooded, barbaric, inhuman and one of the most depraved acts and at the cost of repetition, we may reiterate the decision in case of Satish (supra) that this a diabolic act at the lowest level of humanity when rape has been committed on the child followed by brutal murder. In our considered opinion, the facts and circumstances of the case satisfy the guidelines of the Apex Court in Bachan Singh and Machhi Singh (supra). So, we have no hesitation to hold that the case at hand falls in rarest of rare category and the death sentence awarded by the trial Court is appropriate. In view of the discussions made above, there is no merit in the Jail Criminal Appeal, which is accordingly dismissed by upholding the conviction and sentence of death awarded by the Additional Sessions Judge to the appellant. Consequently, the reference made by the Additional Sessions Judge is confirmed. 17. M. M. DAS, J. :- I agree. Appeal dismissed.