JUDGMENT : Z.K. Saiyed, J. Under section 366(1) of Code of Criminal Procedure, the learned Principal District & Sessions Judge, Valsad has forwarded the record and proceedings for confirmation of death sentence awarded to the accused Santoshkumar Kashikumar Harijan in Sessions Case No. 93 of 2006 vide judgment and order dated 21.7.2007, whereby, the learned Sessions Judge has convicted and sentenced the accused to death penalty. The same was numbered as Criminal Confirmation Case No. 1 of 2007 and the appellant-accused has also preferred Criminal Appeal No. 1018 of 2007 through jail. Criminal Confirmation Case No. 1 of 2007 and Criminal Appeal No. 1018/2007 are arising out of the judgment and order of conviction and sentence of death penalty, dated 21.7.2007 passed by the learned Principal District & Sessions Judge, Valsad in Sessions Case No. 93 of 2006, and hence, both are heard together and disposed of by this common judgment. 2. At Vapi Town Police Station, offence punishable under section 363, 366, 376 and 302 of Indian Penal Code was registered on 1st July, 2006 vide C.R. No. I- 187/2006 at 15.00 O'clock. 3. The facts of the prosecution case is that, Sunita Chandu Shyam Sunder Vadari, who is a labourer, staying at Pillar of Over-bridge of National High-way No. 8, Vapi, G.I.D.C., District Valsad, with her two sons, aged 5 years and 3 years and daughter aged 7 years and maintaining her family by doing labour work of mason since ten to twelve years from the day of the incident. 4. On 30.6.2007, in the morning, at 9.00am, she went to the Zanda Chowk of Vapi for work with other labourers. At that time, contractor Santosh and two other boys and labourer Rakesh who was also staying at same place at Pillar of over-bridge, took her for labour work at Daman Bhimpor in a plastic manufacturing company and then at 1.00 p.m. when their labour work was over, she was given Rs. 120/- as a labour charge and thereafter, she came back to her place at over-bridge, at about 5.00pm. At that time, her two sons and daughter were present. During that period, three unknown persons came to the tea stall, which was near to that over-bridge pillar and asked for tea and biscuits from tea stall and from the above persons, one person had given some biscuits to Kiran. At that time, her two sons and daughter were present. During that period, three unknown persons came to the tea stall, which was near to that over-bridge pillar and asked for tea and biscuits from tea stall and from the above persons, one person had given some biscuits to Kiran. So, Kiran told her mother that at afternoon also this person (Mama) had given some biscuits to her and then went away in a rickshaw. Other two persons remained present there. Then, Biryani was brought from the hotel and it was eaten by herself and her children and then, at 10.00 O'clock, after taking meal, they slept. 5. At round about 12.00 to 12.30pm in the night, she woke up for passing urine, she saw that her daughter Kiran was not there, therefore, she inquired in surrounding area and also searched from the persons who were sleeping there and whole night other labourers who were living at other pillar of the bridge have accompanied her in searching out baby Kiran, but she was not traced out. 6. On 1st July, 2006, at 2.00pm, it has come to know from the talk of the people that at National Highway No. 8, near Jalaram Temple's open place, one girl is lying dead. So, she went to the said place and saw many persons gathered there and police was also present and she found dead body of Kiran girl aged 7 years in a naked condition and frock was knotted around her neck and her private part was bleeding. So, she has filed a complaint with a cause that on 1st July, 2006 at 12.00 pm, an unknown person, who had, after giving biscuits to her daughter Kiran might have taken away her daughter and tempted her to take her at the open place near Jalaram temple and committed illegal sexual act and throttled her and ran away. So, Police Inspector has recorded her complaint and sent it to Vapi Police Station for registration of the offence. Thereafter, In-charge officer has registered offence vide CR No. I-187/2006 for the offences punishable under section 363, 366, 376, 302 of IPC and then investigation was carried out by Police Inspector Mr. J.M. Patel. So, Police Inspector has recorded her complaint and sent it to Vapi Police Station for registration of the offence. Thereafter, In-charge officer has registered offence vide CR No. I-187/2006 for the offences punishable under section 363, 366, 376, 302 of IPC and then investigation was carried out by Police Inspector Mr. J.M. Patel. Panchnama of inquest was drawn in presence of one male and one female panchs and form was prepared and dead-body of Kiran was sent to C.H.C., Vapi and panchnama of scene of offence was drawn and blood mixed with mud of cement concrete was recovered and sealed. The statements of the witnesses were recorded and additional statement of Sunitaben was also recorded. Complainant and her other companions were in search of Kiran. The present appellant-accused had come from Jalaram temple and told that in the morning Kiran will come back and then he went away living the place of the pillar of the over-bridge. So, he was searched out and then interrogated by the police and during the interrogation offence was disclosed. So, panchnama of the physical condition of the accused was drawn and clothes were recovered and later on he was arrested. During the investigation, accused has shown his willingness to the police in the presence of panchas to show the place of offence. So, preliminary panchnama was drawn and then accused led the police party and panchas to the scene of offence. So, the second part of the discovery panchnama was drawn and accused was sent to Community Health Centre, Vapi for medical check-up. After preparing of Ravangi form, sealed muddamal was sent to F.S.L. for scientific analysis. The Investigating Officer has obtained medical certificates and P.M. Note of deceased Kiran. Thereafter, the police has filed charge-sheet before the learned Judicial Magistrate First Class, Vapi. 7. After filing of the charge-sheet, as the offence was exclusively triable by the Court of Sessions, learned Magistrate has committed the said case to the Court of Sessions at Valsad. Thereafter, the learned Sessions Judge has framed the charge against the appellant at Exh. 3 and appellant-accused pleaded not guilty to the said charge and claimed to be tried. 8. In order to bring home the charge levelled against the accused, the prosecution has examined following eight witnesses to prove the version of prosecution: 1. PW-1 Indravadan Parshottambhai Tailor, Ex. 8. 2. PW-2 Amirbhai Mahmadbhai Kabani Ex. 11. 3. 3 and appellant-accused pleaded not guilty to the said charge and claimed to be tried. 8. In order to bring home the charge levelled against the accused, the prosecution has examined following eight witnesses to prove the version of prosecution: 1. PW-1 Indravadan Parshottambhai Tailor, Ex. 8. 2. PW-2 Amirbhai Mahmadbhai Kabani Ex. 11. 3. PW-3 Sunitaben wd/o Chandu Ramchandra Vadari Ex. 16 4. PW-4 Dr. Hinaben w/o Divyeshbhai Patel Ex. 19 5. PW-5 Rakeshkumar Rameshwar Yadav ex. 29 6. PW-6 Vasant Gasiram Ex. 31 7. PW-7 Bharatsinh Vaghsinh, ASI, Ex. 34 8. PW-8 Jayantilal Mafatlal Patel, P.I., Ex. 36. 9. To prove the culpability of the accused, prosecution has also produced and relied upon the following documentary evidence as under: 1. Inquest panchnama Ex. 9. 2. Panchnama of scene of offence Ex. 10. 3. Panchnama of person of accused Ex. 12. 4. Panchnama of muddamal recovery Ex. 13. 5. Panchnama of the clothes of dead-body Ex. 14. 6. Complaint Ex.17. 7. Post Mortem report Ex. 20. 8. Certificate showing cause of death of deceased Kiran Ex. 21. 9. Form of death Ex. 23. 10. Medical Certificate of accused Ex. 27 11. Station diary Ex. 35. 12. Report of FSL with regard to visit of scene of offence Ex. 37. 13. Receipt of FSL Ex. 38. 14. Letter of FSL Ex. 39. 15. FSL Report Ex. 40. 16. Serology report Ex. 41. 17. Note with regard to the muddamal sent to FSL Ex. 43. 10. Thereafter, after examining the witnesses, further statement of appellant-accused under section 313 of Code of Criminal Procedure was recorded, in which, the appellant-accused has denied the case of the prosecution and explained in his reply that he has not committed any offence and has further explained regarding the injury of deceased and himself which were denied by him in to to. 11. After considering the oral as well as documentary evidence and after hearing the parties, the learned Sessions Judge, Valsad, vide impugned judgment and order dated 31st July, 2007, held the appellant-accused guilty to the charge levelled against him. For the offence under Section 363 of IPC, appellant-accused was convicted and sentenced to undergo 10 years R/I and a fine of Rs. 1000/-, in default, three months imprisonment, for the offence under section 364 of IPC, appellant-accused was convicted and sentenced to undergo R/I for life and a fine of Rs. For the offence under Section 363 of IPC, appellant-accused was convicted and sentenced to undergo 10 years R/I and a fine of Rs. 1000/-, in default, three months imprisonment, for the offence under section 364 of IPC, appellant-accused was convicted and sentenced to undergo R/I for life and a fine of Rs. 1000/-, in default, three months imprisonment, for the offence under section 376 of IPC, appellant accused was convicted and sentenced to undergo R/I for life and a fine of Rs. 1000/-, in default, three months imprisonment, for the offence under section 377 of IPC, appellant-accused was convicted and sentenced to undergo R/I for life and a fine of Rs. 1000/-, in default, three months imprisonment and for the offence under section 302 of IPC, appellant-accused was convicted and sentenced for capital punishment. 12. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, Valsad, the present appellant-accused has filed Criminal Appeal No. 1018 of 2007 through jail and as the capital punishment is imposed upon the appellant-accused, the learned Sessions Judge has sent the paper-book for confirmation of death sentence which is numbered as Criminal Confirmation Case No. 1/2007. Therefore, Criminal Confirmation Case No. 1 of 2007 is listed for final hearing along with Criminal Appeal No. 1018/2007 before us on 30.9.2008. Learned advocate Mr. JM Buddhbhatti has been appointed through Legal Aid of this Court to defend the present appellant-accused. Hence, on behalf of appellant-accused Mr. JM Buddhbhatti is heard and learned APP Mr. AJ Desai is heard on behalf of the respondent-State. 13. Learned advocate Mr. Buddhbhatti for the appellant-accused has contended that the identity of the accused has not been established by the prosecution and further contended that I.O. has never bothered to hold identification parade to prove the involvement of accused. Mr. Buddhbhatti has read the oral testimony of PW-3 - Ex. 16 and contended that one unknown doubtful character was cited by deceased baby Kiran and that third person who has offered biscuits to the deceased baby Kiran was the real culprit and he went away in rickshaw and he was cited as a Mama by victim girl. It is also contended that the name of the contractor was also Santosh and it is a doubtful cause which is created in evidence. It is also contended that the name of the contractor was also Santosh and it is a doubtful cause which is created in evidence. So the aspect of the identification is required to be clearly verified but prosecution has not cleared the said aspect, so clouds of doubt are gathered over the evidence of the prosecution and thus, due to the non-establishment of identity of real culprit, present appellant-accused cannot be punished for capital punishment and entitled for acquittal. 14. Learned advocate Mr. Buddhbhatti has also vehemently argued that complainant Sunitaben has not entered into witness box with a clean hands. She has not explained in her complaint Ex. 17 that she has visited cinema house just to watch cinema. He has also contended that this is a material contradiction and just to clarify her false and concocted story in the complaint, the I.O. has added further statement and it appears that investigation itself is biased and it cannot be considered as a genuine piece of evidence. It is also contended by Mr. Buddhbhatti that star witness of this case Mr. Raju Langada was not examined, so non-examination of this witness is fatal to the case of the prosecution. Mr. Buddhbhatti has read further oral evidence of PW-3 complainant and contended that the presence of the present accused-appellant was not established at the place of temporary residence under the over-bridge. It is also contended that the name and physical explanation of the alleged person was not given, so under the suspicion only the appellant-accused cannot be considered as a real culprit of the offence. Mr. Buddhbhatti has contended that only due to the injury found on the private part of the appellant (Ex. 27 Medical Certificate), he cannot be branded as a author of the injury to the deceased and cannot be booked in the alleged offence of unnatural act and rape on the deceased. Mr. Buddhbhatti has vehemently argued that opinion of the medical expert regarding the injury of the accused Ex. 27 is not sufficient to say that he has committed the alleged offences. From the analysis report of the FSL Ex. 41, Mr. Buddhbhatti has contended that blood group of deceased as well as accused-appellant are stated as "B" group and blood found from the place of offence as well as clothes of accused was not considered that it was present there during the course of offence. From the analysis report of the FSL Ex. 41, Mr. Buddhbhatti has contended that blood group of deceased as well as accused-appellant are stated as "B" group and blood found from the place of offence as well as clothes of accused was not considered that it was present there during the course of offence. He has contended that this is a fit case of doubt and hence appellant-accused cannot be held guilty for the alleged offences. From the oral evidence of PW-4 Dr. Hinaben Patel Ex. 19, Mr. Buddhbhatti has drawn our attention that this witness has not established that victim was raped. He has also contended that presence of the semen was also not found on the private part of the deceased as well as on body, and at the scene of offence and from the clothes of the appellant-accused. So, it cannot be said that present appellant-accused was involved in the alleged offence. Learned advocate Mr. Buddhbhatti has read the oral evidence of PW-5 Rakeshkumar Rameshwar Yadav ex. 29 and contended that this witness has not established that Santosh was present there before leaving the place by complainant and present witness. So the aspect of last seen together cannot be applied in the present case and identity of the accused-appellant was not considered to be a proved identity. He has also contended that witnesses of the prosecution who were in search of the deceased Kiran stated that, at that time, accused Santosh came from the "Morai Fatak", so only due to this cause, conduct of the accused-appellant cannot be considered as a doubtful conduct. 15. Learned advocate Mr. Buddhbhatti has read the oral evidence of PW-6 Vasant Gasiram Ex. 31 and contended that from the oral evidence of this witness, accused-appellant Santosh was known to him but I.O. has failed to make an identification parade of Santosh to establish that present appellant was the same person who was present at the Pillar under Over-bridge and due to failure to conduct identification parade, present appellant-accused cannot be cited as a person who was "last seen together" with the deceased at the place of Pillar under the Over-bridge. Mr. Mr. Buddhbhatti has also contended that this witness has shown place of offence just near to the grave-yard at Balitha and due to oral version of this witness, it was established that scene of offence was not same place which was cited by other witnesses, so change of place of offence is also one of the main ingredients to create a doubt and benefit of doubt is required to be given to the accused-appellant. Learned advocate Mr. Buddhbhatti has also contended that from the oral evidence of PW-7 Bharatsinh Vaghsinh Ex. 34 and from Ex. 35 contents of station diary, it was proved before the trial court that the name of the accused was not shown and offence was registered against the unknown person. Mr. Buddhbhatti has contended that looking to the facts and circumstances of the case, I.O. has not obtained any help from the dog squad and foot print expert. He has drawn our attention to the oral as well as documentary evidence and submitted that at the scene of offence, if I.O. has utilised services of dog squad and foot print expert, then, he could have found out real culprit. So, due to this negligency on the part of the I.O., it is established that I.O. was totally negligent in the process of investigation. He has also submitted that the I.O. was bias. Mr. Buddhbhatti has read the oral evidence of PW-8 I.O. Police Inspector Jayantilal Mafatlal Patel Ex. 36 and contended that I.O. was not a honest and reliable Investigating Officer and just to get goal in his favour and to dispose of serious offence, he has booked innocent person in this case. Mr. Buddhbhatti has also vehemently argued that sufficient contradictory version has been found in the oral evidence of this witness. He has also contended that question of the approval of confirmation cannot arise but it is established that prosecution has failed to produce prima-facie evidence to prove the involvement of the present appellant-accused. So, this is a fit case of acquittal and also fit case to rejected the request of confirmation made by the learned trial Judge. 16. Learned advocate Mr. So, this is a fit case of acquittal and also fit case to rejected the request of confirmation made by the learned trial Judge. 16. Learned advocate Mr. Buddhbhatti has relied upon the decisions of the Hon'ble Apex Court in the cases of Shankarlal Gyarasilal Dixit v. State of Maharashtra, reported in AIR 1981 SC 765 ; State of Goa v. Sanjay Thakran & Anr., reported in (2007)3 SCC 755 ; and Jaharlal Das v. State of Orissa, reported in AIR 1991 SC 1388 , to show that in the cases of only circumstantial evidence, how such evidence should be considered. 17. Learned APP Mr. AJ Desai for the respondent-State has contended that there is a voluminous, reliable and trustworthy, clinching evidence are on record, which unequivocally and unerringly proves that deceased was taken away by the appellant-accused from the pillar at the over-bridge and his presence was established with deceased at the said place prior to the incident and appellant - accused was there with the deceased, so the aspect of last-seen together is also proved and established by the witnesses. So, the involvement of the appellant-accused in the said heinous crime cannot be washed out on the ground of identification parade. Mr. Desai has drawn our attention to the oral evidence of the witnesses and contended that appellant-accused was known person to the witnesses and when his presence is established and injury found on the private part of his body, which proves his involvement in the offence as real culprit. Mr. Desai has also contended that deceased has first tried to commit rape and then used her for unnatural act and due to the said cause, injuries were found on the private part of the body of deceased and during the said act her head was dashed with hard and blunt substance and serious injuries were found on the head of the deceased. So, it was established before the trial Court that accused-appellant has committed heinous crime with a six to seven years old baby which is covered within the meaning of rarest of the rare case and the learned trial Judge has rightly prayed to approve the confirmation. 18. Mr. So, it was established before the trial Court that accused-appellant has committed heinous crime with a six to seven years old baby which is covered within the meaning of rarest of the rare case and the learned trial Judge has rightly prayed to approve the confirmation. 18. Mr. AJ Desai learned APP appearing for the respondent-State has replied upon the decisions of the Hon'ble Apex Court in the cases of Kamta Tiwari v. State of M.P., reported in AIR 1996 SC 2800 ; Laxman Naik v. State of Orissa, reported in AIR 1995 SC 1387 ; Surendra Pal Shivbalakpal v. State of Gujarat, reported in (2005)3 SCC 127; and Machhi Singh and ors. v. State of Punjab, reported in AIR 1983 SC 957 . 19. We have gone through the decisions of the Hon'ble Apex Court and we have also considered the observations made by the Hon'ble Apex Court and considered the evidence produced on record. We have also perused the decisions cited by the learned counsels appearing for both the parties. 20. The Hon'ble Apex Court in a number of decisions held that "it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court." The said law is laid down by the Apex Court in the case of Girijanandini Devi & Ors v. Bijendra Narain Choudhary, reported in AIR 1967, SC 1124 and in the case of State of Karnataka v. Hemareddy & Anr, reported in AIR 1981 SC 1417 . Yet, in the interest of justice and to observe said cause of appeal in a legal way, we have discussed the evidence as well as the reasons assigned by the trial Court. 21. We have perused the oral evidence of PW-1 Indravadan Parshottambhai Tailor Ex. 8, panch of inquest panchnama Ex. 9. This witness has proved the contents of panchnama Ex. 9. we have considered the said document and found that oral version of this witness is totally corroborated with the contents Ex. 9 & 10 panchnama of scene of offence. We have not found any illegality from the seizure of muddamal from the scene of offence. We have also perused the oral evidence of PW-2 Amirbhai Mahmadbhai Kabani Ex. 9. we have considered the said document and found that oral version of this witness is totally corroborated with the contents Ex. 9 & 10 panchnama of scene of offence. We have not found any illegality from the seizure of muddamal from the scene of offence. We have also perused the oral evidence of PW-2 Amirbhai Mahmadbhai Kabani Ex. 11, Panch of panchnama of physical condition of the accused Ex. 12, who has fairly established that from the part of the pant of the accused just near the chain, blood was present and injury was also seen by this witness on the private part of the body of accused. PW-4 Dr. Hinaben Divyeshbhai Patel Ex. 19, medical expert, has proved said version of the witness and from the contents of the medical certificate Ex. 27, we have found that it is corroborative piece of evidence and proved version. We have also perused oral evidence of complainant PW-3 Sunitaben Ex. 16 and we have not found any contradictory version in the evidence of the witness as well as documents. We have found that PW-4 Dr. Hinaben Patel Ex. 19, is a public servant and being an independent witness, she has identified the accused appellant with a word that he was medically checked up by her and was identified by this witness before the trial Court and also she has proved contents of Ex. 27 and as an expert, she opined that injury of the accused-appellant can be possible when he has tried to make an attempt to commit rape with baby child and also tried to make unnatural act with the deceased baby child. We have perused contents of Ex. 20 P.M. Report and we have also considered the cause of death. We have not found any illegality committed by this medical expert. We are fully satisfied with the opinion regarding the injuries of the deceased and appellant-accused given by PW-4 Ex. 19 and at this juncture, we have found that death of the deceased was homicidal. 22. From the oral evidence of PW-5 Rakesh Kumar Rameshwar Yadav Ex. 29, identity of the accused-appellant was established by this witness without any doubt and we have also found that present appellant-accused was present when complainant and other witnesses who have requested to take care of deceased as well as her brothers. 22. From the oral evidence of PW-5 Rakesh Kumar Rameshwar Yadav Ex. 29, identity of the accused-appellant was established by this witness without any doubt and we have also found that present appellant-accused was present when complainant and other witnesses who have requested to take care of deceased as well as her brothers. So, from the evidence of PW- 5, we found that oral evidence of this witness is reliable, trustworthy and acceptable. We have also perused oral evidence of PW-6 Vasant Gasiram Ex. 31. We have found that identity of the accused was established without any reasonable doubt by this witness and we have found that this witness was told by accused-appellant that Kiran will return in the morning. So, looking to the conduct of the accused-appellant, it is not just and proper to say that he was not aware regarding the availability of deceased Kiran and this doubtful conduct of the appellant-accused can be considered as main base of his involvement in the crime. We have perused the oral evidence of PW-7 and PW-8 who are the police witnesses. We have minutely analysed the oral evidence of both the witnesses and we have not found that they have created any bogus and concocted evidence just to book the appellant-accused in the above heinous crime. We have also not found any illegality committed by I.O. in the investigation and also not found any negligent act of police witnesses. We are of the firm opinion that identity of the appellant-accused was established before the trial Court and prima-facie, we have found that present appellant-accused has committed the alleged offence and it was proved beyond any reasonable doubt by the prosecution before the trial Court. We are of the opinion that if the substratum of prosecution case remains unaffected and remaining part of the evidence is trustworthy, the prosecution case should be accepted to the extent it is considered safe and trustworthy. 23. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with criminal appeals, this Court has examined the entire evidence on record for itself and independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 24. We have found from the circumstances which itself are enough to connect the appellant-accused with the crime. It is a basic principle that "witness may be lie but the circumstances cannot". It is true that a person could be found guilty on the basis of circumstantial evidence, each of circumstance relied upon must be clearly established and the proved circumstances together must be such as reasonable to exclude the probabilities of innocence. We have perused the whole evidence and also considered this aspect and come to the conclusion that appellant-accused has committed the alleged offence and all circumstances are proved against his innocence. This establishes the fact that there may not be any direct evidence of eye-witnesses but case can be based upon circumstantial evidence. Law regarding circumstantial evidence is well settled and in our opinion when a case rests upon the circumstantial evidence, such evidence must satisfy three tests; (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) these circumstances should be of a definite tendency unerringly pointing towards guilt of the accused and (iii)the circumstances taken cumulatively, should from 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 we have found that all three tests are resulted in favour of prosecution. 25. It is true that corroboration need not be direct, but it can be by way of circumstantial evidence. We have found that prosecution has also proved all the circumstances connecting unbroken chain of links leading to only one inference that the accused-appellant has committed the said crime with a clinching evidence. 26. 25. It is true that corroboration need not be direct, but it can be by way of circumstantial evidence. We have found that prosecution has also proved all the circumstances connecting unbroken chain of links leading to only one inference that the accused-appellant has committed the said crime with a clinching evidence. 26. We have found from the evidence produced on record that appellant-accused had denied all that facts as false. As the accused has falsely denied the facts, the trial court is right in holding that chain of circumstances is completely established by prosecution and it is reasonable and safe to conclude that it was the accused-appellant who had kidnapped, raped, also committed unnatural offence and committed the murder of deceased. 27. As observed and discussed at length, in our opinion, in light of the oral as well as documentary evidence, it is established by prosecution that chain of the circumstantial evidence is established and it is also established that accused-appellant was last seen together with the deceased and from the medical evidence, it is established that accused has committed heinous crime of rape and an act of unnatural act with the deceased - a baby aged about 7 years. It is also established that during the said act, head injuries were caused to the deceased by the present appellant-accused. There is no reason for the prosecution to falsely involve the appellant-accused in the incident. We have not found any illegality committed by the trial Court and form the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted and sentenced the appellant-accused and we have not found that the trial Court has committed any manifest illegality or any error. So, the judgment and order of the trial Court passed against the appellant-accused does not call for any interference of this Court regarding the involvement of the appellant-accused in the said heinous offences. From the evidence, the present appellant-accused was cited as labourer and at the time of incident he was living under the over-bridge pillar. We have found that appellant-accused is only 19 years at the time of the occurrence and there is no evidence that appellant had been involved in any other criminal case previously. We have perused the status of the appellant who had no place to live, but to live in open air. We have found that appellant-accused is only 19 years at the time of the occurrence and there is no evidence that appellant had been involved in any other criminal case previously. We have perused the status of the appellant who had no place to live, but to live in open air. From the perusal of the evidence produced on record, we have also not found any material and we are also unable to come to the conclusion to say that the appellant would be menace to the society in future. In view of the above discussion and reasoning's, we have not found that this case is covered within the meaning of "rarest of rare case". 28. So far as the question of "rarest of the rare" case is concerned, it is required to be considered in view of the observations made by the Hon'ble Apex Court in the case of Surendra Pal Shivbalakpal, reported in (2005)3 SCC 127, wherein, it has been observed as under" "The next question that arises for consideration is whether this is a "rarest of rare case", we do not think that this is a "rarest of rare case" in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. And was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the courts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment." 29. We find ourselves in complete agreement with the said findings, ultimate conclusion and resultant involvement of the appellant-accused and imposition of conviction and sentence by the trial Court. We are also of the view that the present case is not covered within the meaning of "rarest of the rare case". So, due to this conclusion, we are bound to interfere with the request of confirmation of capital punishment. We are also of the view that the present case is not covered within the meaning of "rarest of the rare case". So, due to this conclusion, we are bound to interfere with the request of confirmation of capital punishment. Therefore, this is a valid reason in view of the fact that this is not a case of "rarest of rare case" and justifiable ground to interfere with the impugned judgment and order in a form of conviction and sentence for "capital punishment" in a mode of confirmation requested by the trial Court. 30. For the foregoing reasons, this Confirmation Case fails and is hereby dismissed, but the involvement of the appellant-accused is proved beyond any reasonable doubt as recorded by the trial Court, is required to be confirmed and in view of the above observations, we are of the opinion that judgment and order of conviction and sentence dated 21.7.2006 passed in Sessions Case No. 93/2006 for the offence punishable under section 363, 366, 376 and 377 is hereby confirmed and maintained. When we are not agreed to accept the confirmation request for capital punishment of appellant-accused, therefore, capital punishment awarded by the Trial Court for the offence punishable under section 302 of IPC for the murder of deceased baby Kiran, is hereby commuted to life imprisonment considering the age of the appellant-accused. Consequently, the Criminal Appeal No. 1018/2007 filed by the appellant-accused is also hereby partly allowed to the aforesaid extent. 31. Muddamal be disposed of in terms of directions contained in the impugned judgment and order (para- 67) passed by the trial Court. Appeal partly allowed.