SYED NAZIM HUSAIN ZAIDI, J. This Capital Jail Appeal has been preferred by Superintendent of District Jail, Jalaun at Oral on behalf of convict Omkar Pal against the judgment and order dated 27. 8. 2007 of Dr. Rajesh Singh HJS, Addi tional Sessions Judge/fast Track Court No. 2 Jalaun at Orai passed in Sessions Trial No. 138 of 2006 State v. Omkar Pal convict ing the appellant and sentencing him to death penalty under section 302 Indian Pe nal Code, for short IPC, to life imprison ment and fine of Rs. 10, 000/- under section 376 (2) (f) IPC and seven years imprison ment and fine of Rs. 5, 000/- under section 201 IPC. In case of default of payment of fine, further imprisonment of one year un der section 376 (2) (f) IPC and six months under section 201 IPC has been awarded to the appellant. For confirmation of the sen tence of death, Reference No. 22 of 2007 has been received from the learned trial Judge under section 366 (2) Criminal Procedure Code, for short Cr. P. C. 2. The aforesaid Criminal Appeal and reference have been connected and are being disposed of together by the present judgment. 3. The prosecution case, as revealed from the evidence on record, in brief, is that on 18. 3. 2006 at about 4. 30 p. m. Km. Preeti, the eleven years old daughter of complainant PW1 Samrath Pal, had gone to pluck and eat Ber at the side of the pond in the vicinity of her house in village Amkhera, within PS and district Jalaun, but when she did not return till late in the evening, then a search was made but she could not be traced. She was searched out again on the next day and some blood, four fruits of Ber and a ribbon were found lying in the dilapidated house (Khandhar) of Raghubir Pal. The girl was searched around that house and then, at about 2 pm, her dead body was found hidden under the hay in the hay stock room of the bara (house used for tethering cattle and storing hay and agricultural implements etc.) of Kadhorey Pal. After the recovery of the dead body of the girl, PW3 Mohar Singh, PW4 Yadram and few others informed the complainant that on 18. 3. 2006, at about 5. After the recovery of the dead body of the girl, PW3 Mohar Singh, PW4 Yadram and few others informed the complainant that on 18. 3. 2006, at about 5. 30 pm when they were sitting at the Lidhori (a long earthen tub like construction made for feeding cattle) of Lalta Prasad then they had seen Omkar Pal coming out of the said Bara and at that time he was smeared with blood and hay and was nervous and on inquiry he told that he had gone to eat Ber at the pond and had slipped there and got injured. The complainant got the report of the incident, Ext. Ka-1 scribed by Udit Nrain Upadhyay and gave it at PS Jalaun at 3. 45 pm on 19. 3. 2006. In the report it was also alleged that Omkar had committed rape with the girl and in order to cause the evidence of the crime disappear, had mur dered her and hid the dead body in the hay. On the basis of the report, PW9 Con stable Clerk Matadin, wrote down Chik FIR, Ext. Ka- 18 and registered a case under sections 376, 302 and 201 IPC at G. D. No. 27, Ext. Ka-19 against the appellant. 4. PW8 Inspector Ram Tirath, the then SHO of PS Jalaun, took the investiga tion of the case in his hands and reached at be of occurrence and got prepared Inquest report, Ext. Ka-2, under-his direction PW12 Sub-Inspector S. K. Mehra and sent the dead body of the giral for post mortan exanimation with PW7 Constable Umesh Sharma. The Investigating Officer, for short the I. O. prepared the site plan, Ext. Kar-15 of the place of occurrence and also took In his custody dried leafs and stem of Jwar (Karbi) stained with blood, Material Ext-12, a piece of cloth (handkerchief) stained with blood. Mat. Ext. 13, a ribbon and four fruits of Ber, Mat. Ext.-14 and 15 to 18 respectively, sample of plain earth from the place of occurrence Mat. Ext.-19 and sample of hay of pea, Mat. Ext.-20 and prepared their custody memos Ext. Ka-3 to Ext. Ka-7 respectively. 5. PW6 Dr. R. P. Singh conducted the post-mortem examination of the body of Km. Preeti on 20. 3. 2006 at 4. 05 pm and prepared the report Ext. Ka-9. He found the following anti-mortem injuries on her dead body: - 1. Ext.-20 and prepared their custody memos Ext. Ka-3 to Ext. Ka-7 respectively. 5. PW6 Dr. R. P. Singh conducted the post-mortem examination of the body of Km. Preeti on 20. 3. 2006 at 4. 05 pm and prepared the report Ext. Ka-9. He found the following anti-mortem injuries on her dead body: - 1. A contusion, 2 cm x 1 cm, over the right side of neck, 2. A contusion, 3 cm x 1. 5 cm, over the left side of neck at the level of cricoids cartilage. On dissection sub-cutaneous tissues and muscles were found congested. The left side cornua of Hyoid bone was found fractured, 3. An abrasion, 2 cm x 1 cm, over the back of right elbow, 4. An abrasion, 1. 5 cm x 1 cm, on the front of left knee, 5. An abrasion, 0. 2 cm x 0. 1 cm, on the front of the left leg 10 cm below the knee, 6. Multiple abrasions over back of chest left side. Largest abrasion 3 cm x 2 cm, smallest 0. 3 x 0. 2 cm in an area of 15 cm x 12 cm. , 7. Three lacerated wounds in vagina, one in lower part and two on lat eral part, average size 1. 5 cm. Slides of the vaginal smear were prepared for examination. 6. According to the doctors opinion, the girl was subjected to rape and had died due to asphyxia as a result of throttling. He had sealed her underwear Mat. Ext.-l, shirt Mat. Ext.-2 and plastic bangles Mat. Ext. 3 toll. 7. On 20. 3. 2006, the appellant was arrested by the I. O. and he got his under-, wear Mat Ext-21, vest Mat. Ext-22, blood stained shirt Mat. Ext.-23 and blood stained pant Mat. Ext.-24, which were worn by him I at the time of occurrence, recovered from j his house. Recovery memo of the clothes, I Ext. Ka-15 and the site plan of the place of recovery, Ext. Ka-16 were prepared by the I. O. , who has also proved the recovery of the said clothes from the appellants house at his instance. 8. The injuries of the appellant were examined on the same day at Community Health Center, Jalaun at 4. 50 pm by PW. 11 Dr. S. K. Saksena, who had prepared his report Ext. Ka-21. According to Dr. 8. The injuries of the appellant were examined on the same day at Community Health Center, Jalaun at 4. 50 pm by PW. 11 Dr. S. K. Saksena, who had prepared his report Ext. Ka-21. According to Dr. Sak sena, there were two injuries of abrasion on his chest and above the right ankle joint and since there was marked swelling over his glans penis with marked redness over posterior part extending up to opening of glans penis, therefore, he kept the injury under observation and referred him for expert opinion to the District Hospital Orai. PW10 Dr. Srikant Tiwari, the Surgeon of District Hospital Orai, had examined the appellant on the same day and prepared the examination report Ext. Ka-20, accord ing to which, the glans around the front portion of his penis was swollen and pain ing and under the glans, the lower portion of the penis was red. 9. The I. O. sent the case properties for examination to the Forensic Science Laboratory (F. S. L) Agra, through docket Ext. Ka-20a and after concluding the in vestigation submitted the charge-sheet, Ext. Ka- 17 under sections 302, 376 and 201 of IPC The report of the FSL is Ext. Ka-21a. According to this report, human blood was found on the underwear and shirt of de ceased Km. Preeti, earth taken from the place of occurrence and on the shirt and vest of appellant Omkar. Besides that, se men was also found on the under wears of the deceased as well as of the appellant. 10. The Magistrate took the cogni zance on the charge-sheet and committed the case to the Court of Sessions for trial. The Trial Court framed the charges of sec tions 376, 302 and 201 IPC against the ap pellant, who pleaded not guilty to them and claimed the trial. 11. The prosecution has examined Samrath Pal, Man Singh, Mohar Singh, Yad Ram, Kamlesh Pal, Dr. R. P. Singh, Con. Umesh Sharma, Inspector Ram Tirath, Con. Matadin, Dr. Srikant Tiwari, Dr. S. K. Sak sena and Sub-Inspector S. K. Mehra as PW1 to PW12 respectively and has produced documentary evidence Ext. Ka-1 to Ext. 21 and case properties Mat. Ext. 1 to Mat. Ext. 24 in support of its case. 12. PW. 1 Samrath Pal is the com plainant and father of the victim. Matadin, Dr. Srikant Tiwari, Dr. S. K. Sak sena and Sub-Inspector S. K. Mehra as PW1 to PW12 respectively and has produced documentary evidence Ext. Ka-1 to Ext. 21 and case properties Mat. Ext. 1 to Mat. Ext. 24 in support of its case. 12. PW. 1 Samrath Pal is the com plainant and father of the victim. He has fully supported the prosecution case and has proved written report Ext. Ka-1. PW. 2 Man Singh is one of the Panchas of the in quest report Ext. Ka-2 and a witness of custody memos Ext. Ka-3 to Ka-6 and has proved these documents. PW. 3 Mohar Singh and PW. 4 Yadram had seen the ap pellant coming out of the Bara of Kadhorey Pal, where from the dead body of the girl was subsequently found, stained with blood and in a nervous condition at 5. 30 pm, on the day when the girl had gone missing. They have corroborated the said circumstance. PW. 4 Yadram is the other witness of the custody memos Ext. Ka-3 to Ka-6 and has proved his signatures on them. PW. 5 Kamlesh Pal is one of the wit nesses of the recovery of the dead body of Km. Preeti from the Bara of Kadhorey Pal, custody memo, Ext. Ka-7, of blood stained hay from the said place and also the recov ery of the clothes of the appellant from his house at the instance of the appellant. He has also corroborated these circumstances and proved custody memo Ext. Ka-7 and recovery memo of clothes Ext. Ka-8. Rest of the witnesses are formal witnesses and have proved police papers Ext. Ka-9 to Ext. Ka-22 and Material Exts. 1 to 24. 13. The Trial Court also called upon Ram Roop Pal and examined him as CW. 1. He is the witness of lastly seeing the de ceased with the appellant. He has said that he had seen Km. Preeti and Omkar Pal eating Ber under the tree of Ber at the side of the pond and had not seen Preeti alive after that. 14. In his statement under section 313 Cr. P. C. the appellant has denied his in volvement in the murder of Km. Preeti and the recovery of his blood and semen stained clothes from his house at his in stance. 14. In his statement under section 313 Cr. P. C. the appellant has denied his in volvement in the murder of Km. Preeti and the recovery of his blood and semen stained clothes from his house at his in stance. He has also denied the factum of his examination by the doctors at the Com munity Health Center at Jalaun as well as at the District Hospital Orai and has said that he was not present in the village on 18 and 19. 3. 2006 and when he was coming back to the village then he was appre hended at Jalaun crossing by the police in the evening of 20. 3. 2006. The appellant has examined Ram Baran Singh and Yatindra Kumar as DW. l and 2 respectively in his defence. 15. D. W. I Ram Baran Singh is the Village Development Officer. On the basis of the entries of Family Register pertaining to the years 2002-03 and Death Register pertaining to the year 2006 of village Sa- trahju of Nayaya Panchayat Churkhi, he has said that, at page 112 of the Family Register, in house No. 79 B, the names of the members of the family of Sheoram son of Sumer is entered wherein the name of the mother of Sheoram is not mentioned and no family is entered with the name of Sumer and in the Death Register there is no entry regarding the death of the mother of Sheoram Pal. He has proved the copy of the said page of the Family Register, Ext. Kha-1, and Death Register, Ext. Kha-2. 16. D. W. 2 Yatindra Kumar is the Junior Clerk in the office of Pachayat Raj Department. On the basis of original Fam ily Register pertaining to the year 1961-71, he has said that at page 11, in column 15 thereof, there are entries of death of Smt. Rajjan wife of Sumer and the name of Sheoram as Nati of Sumer is also recorded. He has proved the copy of the entries, Ext. Kha-3. 17. The learned trial judge found all the charges framed against the appellant as proved beyond doubt and sentenced him to death under section 302 IPC and passed sentences of imprisonment and fine under sections 376 and 201 IPC, as mentioned above. He has then submitted the sentence of death for confirmation to this Court un der section 366 of the Cr. He has then submitted the sentence of death for confirmation to this Court un der section 366 of the Cr. P. C. 18. We have heard the learned Coun sel for the appellant and the learned A. G. A for the State and perused the record of the case. 19. There is no direct evidence in this case and the prosecution case is based on circumstantial evidence. The Supreme Court has consistently laid down that where a case rests squarely on circumstan tial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the ac cused or the guilt of any other person. (Hukum Singh v. State of Rajasthan, AIR 1977 SC 1063 State of U. P. v. Sukhbhasi, AIR 1985 SC 1224 = 1985 (22) ACC 320 (SC), Ashok Kumar Chaterjee v. State of M. P. AIR 1989 SC 1890 20. The principles for appreciation of evidence in a case of circumstantial evi dence have been aptly enunciated in Padala Verabira Reddy v. State of A. P. AIR 1990 SC 79 = 1990 (27) ACC 32 (SC) which we respectfully adopt. The principles laid down are as follows : - " (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 unerringly pointing towards the guilt of the accused, (iii) the circumstances, taken cumulatively, should form a chain so, complete that there is no escape for; the conclusion that within all human probability the crime was f committed by the accused and I none else, and (iv) the circumstantial evidence in or der to sustain conviction must be complete and incapable of expla nation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the ac cused but should be inconsistent with his innocence. " 21. Learned Counsel for the appellant has also referred to some cases, namely, State of U. P. v. Ashok Kumar Srivastava, 1992 Cr. LJ. 1104 = 1991 (Suppl.) ACC 325. Sha-rad Birdhi Chand Sarda v. State of Maharash tra, AIR 1984 SC I622. Shivaji Saheb Rao Bobade v. State of Ma harashtra. 1995 (Suppl.) ACC 598 (SC ). " 21. Learned Counsel for the appellant has also referred to some cases, namely, State of U. P. v. Ashok Kumar Srivastava, 1992 Cr. LJ. 1104 = 1991 (Suppl.) ACC 325. Sha-rad Birdhi Chand Sarda v. State of Maharash tra, AIR 1984 SC I622. Shivaji Saheb Rao Bobade v. State of Ma harashtra. 1995 (Suppl.) ACC 598 (SC ). All these cases reiterate the aforesaid principle laid down in Padala Verabira Reddys case (supra) that in a case of circumstantial evidence, the circum stances against the accused must be firmly established, the circumstances must irrefu tably points towards the guilt of the ac cused, the chain of circumstances should in all human probability suggest that the ac cused alone had committed the crime and the circumstances should only be consistent with the guilt of the accused and inconsis tent with his innocence. Hence, there is no need to burden this judgment with pas sages from the cases cited by the appel lants Counsel. 22. In order to prove its case the prosecution has relied upon the following circumstances: - 1. On 18. 3. 2006 at about 4. 30 pm Preeti had gone to pluck and eat Ber at the pond near her home. 2. The appellant and Prerti were seen eating Ber under the Ber tree at the side of the pond and thereafter she was not seen alive by anybody. 3. The appellant was seen coming out of the Bara of Kadhorey Pal in a nervous condition and was smeared with blood and hay at about 5. 00-5. 30 pm on 18. 3. 2006 and the dead body of Preeti was found hidden under the pile of hay in the room of the said Bara at about 2. 00 pm on 19. 3. 2006. 4. Ribbon of Preeti, four fruits of Ber and blood stained dry leafs and stem of Jwar (Karbi) were recov ered from the Khandhar of Raghubir Pal which was adjacent to the Bara of Kadhorey Pal. 5. Preeti was subjected to rape before her death. 6. The appellant got recovered his blood stained clothes from his house. 7. Human blood, semen and sperms were found on the under wears of the deceased and appellant as well as human blood was found on the shirt of the deceased and vest and shirt of the appellant. 8. 5. Preeti was subjected to rape before her death. 6. The appellant got recovered his blood stained clothes from his house. 7. Human blood, semen and sperms were found on the under wears of the deceased and appellant as well as human blood was found on the shirt of the deceased and vest and shirt of the appellant. 8. The penis of the appellant was found swollen and red in his medi cal examination. 23. When we analise the evidence on record in the background of the principles of law highlighted above, the inevitable conclusion we have come to is that the learned Trial Court has rightly held the above circumstances as proved. 24. So far as the first circumstance that Km. Preeti had gone to pluck and eat Ber at the pond near her home is con cerned, her father PW 1 has stated that Preeti, who was aged about eleven years, had gone to eat Ber beside the pond at about 4. 30 pm. He has also said that he was present in the house when Preeti had gone. The witness has not been disputed by the defence in respect this circumstance. It is thus sufficiently proved that Preeti had gone to the pond on 18. 3. 2006 at about 4. 30 pm. 25. The second circumstance, as stated above, is that Preeti and appellant Omkar Pal were seen at the pond eating Ber under a Ber tree and thereafter the girl was not seen alive. CW1 has corroborated this circumstance in his statement on oath and has also said that on the very next day he had gone to village Satrahju to attend the 13th day death ceremony of the mother of his father-in-law and when he returned to the village on its next day then he came to know about the death of Preeti and then he informed about that to Samrath. This witness has successfully, stood the test of cross-examination and nothing could come in it which could make him unreliable. This witness has successfully, stood the test of cross-examination and nothing could come in it which could make him unreliable. Ac cording to the learned Counsel for the ap pellant, this witness has been introduced only to bring on record a false circumstance of lastly seeing the deceased in the company of the appellant and he has concocted a story to explain the delay as to why he could not immediately inform Samrath when the news of the death of her daughter had spread in the village after the recovery of her dead body. The defence has exam ined two witnesses only to discredit this witness by making an attempt to show that the mother of the father-in-law of this wit ness had not died at that time and had died years before, therefore, there was no occa sion for this witness to go to village Sa trahju to participate in any death ceremony and that he is deposing falsehood. It has been pointed out by the Counsel for the appellant that CW1 has admitted in his cross-examination that the name of his fa ther-in-law was Sheoram Pal who had two sons namely, Bal Kishun and Akhilesh but DW1 has said that in the Family Register pertaining to the year 2002-03 the names of the family members of Sheoram son of Sumer were entered at page 112 but the name of his mother was not recorded. He has further said that no family of Sumer was also recorded in that register and in the Death Register pertaining to the year 2006 of village Satrahju, the death of the mother of Sheoram Pal was also not re corded and DW2 has stated that at page 11 of the Family Register pertaining to the years 1961 to 1971, there is an entry of the death of Smt. Rajjan wife of Sumera and the name of Sheoram is also entered as the grand son of Sumera. In our opinion the evidence of these defence witnesses has rightly been rejected by the Trial Court be cause their testimony is based on certain registers but those registers are unworthy of credit and no reliance can be placed upon them as its entries were neither made by them nor were made in their presence and they could also not tell as to who were the authors of those entries. They have also admitted that some of the columns of these registers are blank and there is no en dorsement of any officer regarding the authentication the Death Register and the Family Register was not in the shape of register and it was in the form of stitched pages and it did not have any certification about its total number of pages and it had not been authenticated by any officer. The Trial Court has correctly held that from the testimony of the defence witnesses it is not proved that CW1 Ramroop Pal had not visited village Satrahju on 18. 3. 2006 in the death ceremony. CW1 has no enmity with the appellant or any member of his family and has no reason to depose falsehood against him. It is, therefore, fully proved beyond any doubt that the deceased was lastly seen in the company of appellant Omkar Pal at the pond eating Ber. 26. The third circumstance, as alleged by the prosecution, is that on 18. 3. 2006 at about 5. 30 p. m. the appellant was seen coming out of the Bara of Kadhorey Pal in a nervous condition and there were stains of blood on his clothes and he was smeared with hay. The learned Trial Court has found this circumstance as proved on the basis of the evidence of Pws 3 and 4, who have fully corroborated this circumstance in their statements. According to Pws 3 and 4, they were sitting at the Lidhauri of Lalta Prasad along with few others at about 5. 30 p. m. when they saw appellant Omkar coming out of the said Bara and as his clothes were smeared with hay and blood and he was looking nervous so he was in quired about his condition to which he said that he had gone to eat Ber behind the said Bara where he slipped and got his elbow injured. They have also said that next day when they came to know that the daughter of Samrath had gone missing then they had searched her and found her dead body hidden under the heap of hay in the said Bara at about 2 p. m. PW 1 and 2 have also corroborated the recovery of the dead body of the girl from the said Bara. The testimo nies of these Pws have successfully stood the test of credibility at the anvil of cross-examination and inspire confidence. None of the witnesses has any enmity with the appellant from before the occurrence. The complainant, the appellant and all these witnesses appear to belong to the same community and residents of the same vil lage and there seems no reason for them to depose falsehood against the appellant. The facts that the appellant was seen com ing out of the said Bara in a nervous condi tion and his clothes were smeared with blood and hay and the next day the dead body of the girl was recovered from the said Bara are also mentioned in the FIR lodged with the police on 19. 3. 2006 at 3. 45 pm, i. e. , about two hours after the recovery of the dead body of the girl. The testimony of the witnesses in respect of this circumstance is, therefore, corroborated by the FIR also and proves the it beyond doubt. 27. In respect of the fourth circum stance, as indicated above, PWs 1, 2, 4 and the I. O. PWS have proved the recovery of a ribbon Mat. Ext. 14, fruits of Ber Mat. Exts. 15 to 18 and blood stained dry leafs and wood (stem) of Jwar (karbi) Mat. Ext. 12. from the Khandhar of Raghubir Pal. Ac cording to PWs. 1, 2 and 4, when they were making search for Preeti and came to that Khandhar then they had seen those articles lying. PW1 has also said that some mohalla people had also informed him about the presence of some blood and a ribbon in the said Khandhar. PWS had taken those arti cles in his custody from that place after preparing the custody memos Ext. Ka-3 and Ka-5, which fully corroborate the tes timony of PW2 and 4, who are also the witnesses of those memos. These witnesses have rightly been believed by the Trial Court as they have successfully stood the test of cross-examination. There is sufficient evidence on record to prove that the recovered black ribbon Mat. Ext. 14 be-longed to Preeti. The site plan Ext.- Ka-15, which has not been disputed by the defence, shows that the Bara of Kadhorey, from where the dead body of the girl was recovered, lies in the east adjacent to the said Khandhar. There is sufficient evidence on record to prove that the recovered black ribbon Mat. Ext. 14 be-longed to Preeti. The site plan Ext.- Ka-15, which has not been disputed by the defence, shows that the Bara of Kadhorey, from where the dead body of the girl was recovered, lies in the east adjacent to the said Khandhar. We are, therefore, satisfied that the factum of the recovery of the black ribbon (hair band) of the deceased, four fruits of Ber and blood stained dried leafs and wood of Jwar from the said Khandhr is fully proved. 28. The fifth circumstance, as stated by the prosecution, is that before Preeti was killed, she was also subjected to sexual as-sault. PW6 Dr. Singh has opined at Preeti had died due to asphyxia as a result of throttling and she was raped prior to her death. He has also said that she could have died at about 4-5 pm on 18. 3. 2006. The statement of PW6, which supports the prosecution case, is fully corroborated by the post-mortem report Ext. Ka-9 which also shows that there were several anti-mortem injuries on her 0 person as well as in her vagina, as detailed on page 2 above. The observation of the Trial Court that the said injuries would have come on account of resistance offered by the victim at the time of commission of rape and throttling is plausible. There appears no substance in the defence suggestion that the anti- mortem injuries Nos. 1 to 6 of the girl could have been caused by the dragging of the body by any animal, as the dead body of the girl was found hidden under the pile of hay in a room showing the involvement human hands. The presence of blood on the dried leafs and wood lying in the Khandhar of Raghubir the ribbon (hair band) of the girl and of Ber clearly indicates that the raped and killed at that place and Bara of Kadhorey was adjacent to it, fore, the dead body was conveniently to it and hidden under the pile of hay. The learned Trial Court has rightly held this circumstance as proved. 29. Another circumstance intriguing the accused as alleged by the pi1tion is that after his arrest on 20. 3. 2006 he got his blood stained clothes Mat. The learned Trial Court has rightly held this circumstance as proved. 29. Another circumstance intriguing the accused as alleged by the pi1tion is that after his arrest on 20. 3. 2006 he got his blood stained clothes Mat. 24, which were worn by him on the occurrence, recovered from his hot and the I. O. PWS have stated legged recovery and have proved 16 of the place of recovery of corroborates their statements confidence and appear reliable. Afton the appellant has denied the all 83, yet we do not find the allege doubtful as there appears no 2 PWS to depose falsehood against Tolland and his testimony is fully by the statement of PWS a memo Ext Ka-15. We are thus the prosecution has successrujjy0 payee this circumstance also. 30. The seventh circumstance alleges by the prosecution is that human blood, semen and sperms were found oh the report, Ext. Ka-21, of Forensic hence Laboratory, Agra. PW6 Dr. stated that he had taken me un Mat. Ext. 1 and shirt Mat. Ext. 5 of the deceased at the time mortem. The circumstance of the clothes. Mat. Exts 2l to 153 junior were worn by the appellant on me occurrence, at his instance as mr. Saoybeeri proved. It has also clothes were stained and PW4 have stated about the presence of blood stains upon the clothes of the appel lant when he was seen coming out of the Bara of Kadhorey Pal on the date of occur rence. This circumstance proves beyond doubt that as the girl was raped and subse quently killed by the appellant therefore, the clothes of the deceased and the appel lant were smeared with semen, sperms and blood. 31. The last incriminating circum stance pointed out by the prosecution is that the penis of the appellant was found swollen and red in his medical examina tion. The I. O. PW8 has stated that since af ter the arrest of the appellant on 20. 3. 2006 he told that his penis was having burning sensation and irritation, therefore, he was sent to Community Health Center, for short CHC, Jalaun for examination on that very day. PW11 Dr. The I. O. PW8 has stated that since af ter the arrest of the appellant on 20. 3. 2006 he told that his penis was having burning sensation and irritation, therefore, he was sent to Community Health Center, for short CHC, Jalaun for examination on that very day. PW11 Dr. Saksena who had examined the appellant at the CHC has said that there was marked swelling over his glans penis and marked redness over posterior part extending up to the opening of glans penis which was about two days old and could have come at about 4. 30 p. m. on 18. 3. 2006. PW 11 had sent the appellant for expert opinion of the surgeon at the District Hospital where he was examined by PW 10 Dr. Tiwari who has fully corroborated the opinion of Dr. Saksena. According to PW 11, the swelling and redness, as were found in the penis of Omkar could have occa sioned due to its forcible 1 penetration in the vagina of a little girl. He has also said that there were two injuries on the person of Omkar in the nature of abrasions, firstly, 1. 5 cm x 0. 5 cm x skin deep over right side of chest near the clavicle, and secondly, 4 cm x 0. 5 cm x skin deep in the right thigh 10 cm above the knee and these injuries could have come in the resistance offered by a girl who is subjected to forcible sexual intercourse. The examination reports Exts Ka-20 and 21 support the testimonies of PWs 10 and 11. This circumstance, there fore, also stood proved beyond any doubt and shows that due to forcible sexual inter course with the victim, the penis of the appellant had become red and swollen. 32. All the above circumstances, as indicated by the prosecution are firmly and cogently proved beyond any doubt. In our view these circumstances are conclusive in nature and when taken cumulatively they form a complete chain with no gap in it and clearly point towards the guilt of the appel lant. It makes out from these circumstances that when on 18. 3. 2006 at about 4. In our view these circumstances are conclusive in nature and when taken cumulatively they form a complete chain with no gap in it and clearly point towards the guilt of the appel lant. It makes out from these circumstances that when on 18. 3. 2006 at about 4. 30 p. m. Preeti had gone to the pond near her house to pluck and eat Ber, appellant Omkar met her there and both of them eat Ber and they were seen by CW1 and thereafter appellant brought her to the khandhar of Raghubir Pal where he raped her and when she of fered resistance then he killed her by throttling and in the commission of rape and murder the deceased received injuries on her person as well as on her private part and her vagina get lacerated and the blood fell on the floor smearing the dried leafs and wood (stem) of Jwar which were lying there and the underwears of the deceased and the appellant also get stained with blood and semen and the four Ber carried by them and the ribbon (hair band) of the girl fell there and in order to cause the evi dence of the crime disappear he brought the dead body of the victim to the adjacent Bara of Kadhorey Pal and hid it under the pile of hay in a room of that Bara and in that process the clothes he was putting on get stained with blood and he himself get smeared with hay and at about 5. 30 p. m. when he came out of the said Bara in a nervous condition he was seen by PW3 and 4 and others who were sitting at the Lad-hori of Lalta Pal and after his arrest by the police he get his blood stained clothes re covered from his house and due to forcible commission of rape, his penis became red and swollen. In our view the motive for the crime was to satisfy the sexual urge which might have arisen seeing the victim alone at the secluded pond. We are also of the opinion that the circumstantial evidence established against the appellant is inca pable of explanation of any other hypothe sis than his guilt. 33. In our view the motive for the crime was to satisfy the sexual urge which might have arisen seeing the victim alone at the secluded pond. We are also of the opinion that the circumstantial evidence established against the appellant is inca pable of explanation of any other hypothe sis than his guilt. 33. From what we have stated above, we hold that all the incriminating circumstances against the appellant as pointed out by the prosecution, are fully established and these circumstances and the evidence on record make a complete chain leaving no ground to suggest the innocence of the appellant. We are also of the view that these circumstances are conclusive in na ture and exclude every possible hypothesis to the innocence of the appellant. We, therefore, hold that the appellant had committed the rape and murder of Km. Preeti and hid her dead body under the hay to cause the evidence of murder and rape to disappear in order to screen himself from legal punishment. The Trial Court has, therefore, rightly held him guilty of the charges of sections 376, 302 and 201 of the Indian Penal Code. In this view of the matter we confirm the conviction of appel lant Omkar Pal under the aforesaid sec tions. 34. So far as the sentence part of the impugned judgment is concerned, the ap pellant has been awarded death sentence under section 302 of the I. P. C. Learned Counsel for the appellant has submitted that it is not the rarest of the rare case to warrant the extreme penalty of death to the appellant. 35. The Supreme Court in the cases of Bachan Singh v. State of Punjab, 1980 (2) SCC 684 = 1980 (17) ACC 4 (Sum.) and Machhi Singh and others v. State of Punjab, 1983 (3) SCC 470 = 1983 (20) ACC 321 (SC) has indi cated the guidelines for determining whether the case belongs to the rarest of the rare category for awarding death sen tence. The Constitution Bench in Bachan Singhs case (supra) has said: - ". . . . . It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with ever more scrupulous care and humane concern, directed along the high road of legislative policy outlined in section 354 (3), viz. . . . . It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with ever more scrupulous care and humane concern, directed along the high road of legislative policy outlined in section 354 (3), viz. , that for persons convicted of murder, life Imprisonment is the rule and death sentence an excep tion. A real and abiding concern for the dignity of human life postu lates resistance to taking a life through laws instrumentality. That ought not to be done save in the rarest of the rare case when the alternative option is foreclosed. " 36. The principle of rarest of rare case laid down in the aforesaid case came up for elaborate consideration before the Apex Court in the case of Machhi Singh (supra ). It was a case of extraordinary brutality. On account of a family feud Machhi Singh, along with his eleven ac complices, in the course of a single night, conducted raids on a number of villages killing seventeen people, including men, women and children for no reason other than they were related to one Amar Singh and his sister Piyaro Bai. The death sen tence awarded to Machhi Singh and two other accused by the Trial Court and af firmed by the High Court was also con firmed by the Supreme Court. In this case the Supreme Court put itself in the position of the community and observed that though the community revered and pro tected life because the very humanistic edifice is constructed on the foundation of the reverence for life principle it may yet withdraw the protection and demand death penalty. The Court held that "it may do so in rarest of rare case when its col lective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desir ability or otherwise of retaining death penalty. The Court held that "it may do so in rarest of rare case when its col lective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desir ability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti social or abhorrent nature of the crime, such as for instance: - 3 I. Manner of commission of murder: - 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 com munity. For instance, (I) when the house of the victim is set aflame with the end in view to roast him alive in the house, (II) when the victim is subjected to in human acts of torture or cruelty in order to bring about his or her death, (III) when the body of the victim is cut into pieces or his body is dismem bered in a fiendish manner. II. Motive for commission of murder.- When the murder is committed for a motive which evinces total de pravity and meanness. For instance when: (I) a hired assassin commits murder for the sake of money or reward, (II) a cold blooded murder is commit ted with a deliberate design in or der to inherit property or to gain control over property of a ward or a person under the control of a murderer or vis-a-vis whom the murderer is in a dominating posi tion or in a position of trust, or (III) a murder is committed in the course for betrayal of the mother land. III. Anti-social or socially abhorrent na ture of the crime; (I) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reason but in circumstances which arouse social wrath. For instance, when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, land or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. For instance, when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, land or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. 4 (II) In cases of bride burning and what are known as dowry deaths or when murder is committed in or der to remarry for the sake of ex tracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime: - When the crime is enormous in proportion. For instance, when multiple mur ders 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. V. Personality of victim of murder: - When the victim of the murder is, (I) an innocent child who could not have or has not provided even an excuse much less a provocation for murder, (II) a helpless woman or a person ren dered helpless by old age or in firmity, (III) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal rea sons. " 37. In Machhi Singhs case (supra) the Court also held that for practical applica tion the rarest of rare case principle must be read and understood in the background of the five categories of murder cases enu merated above. The Supreme Court, though relying upon the observations in Bachan Singh yet, observed in Swami Shraddananda @ Murli Manohar Mishra JT 2008 (8) SC 27 that "we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as in flexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself. " 38. The Apex Court, in Shraddananda (supra), looked at the matter from another angle. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself. " 38. The Apex Court, in Shraddananda (supra), looked at the matter from another angle. It has observed that "in Bachan Singh it was held that the expression "special reasons" in the context of the pro vision of section 354 (3) obviously means "exceptional reasons" founded on the ex ceptionally grave circumstances of the particular case relating to the crime as well as the criminal. It was further said that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. In conclusion it was said that 5 the death penalty ought not to be imposed save in the rarest of rare cases when the alterna tive option is unquestionably foreclosed. Now, all these expressions "special rea sons", "exceptional reasons", "founded on the exceptional grave circumstances", "extreme cases" and "the rarest of the rare cases" unquestionably indicate a relative category based on comparison with other cases of murder. Machhi Singh for the pur pose of practical application sought to translate this relative category into absolute terms by framing the five categories. (In doing so, it is held by some, Machhi Singh considerably enlarged the scope for impos ing death penalty that was greatly re stricted by Bachan Singh ). " 39. It can, therefore, be noted from above that Bachan Singh laid down the principle of the rarest of rare case and Machhi Singh, for practical application, crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope of imposing death penalty. The Supreme Court in Shraddanandas case (supra) has further held, that, "but the unfortunate reality is that in later decisions neither the rarest of rare case principle nor the Machhi Singh catego ries were followed uniformly and consis tently. In Aloke Nath Dutta v. State of West Bengal 2007 (51) AIC 429 (SC) = 2006 (Supp. 10) SCR 662 Sinha J. gave some very good illus trations from a number of recent decisions in which on similar facts this Court took con trary views on giving death penalty to the convict. In Aloke Nath Dutta v. State of West Bengal 2007 (51) AIC 429 (SC) = 2006 (Supp. 10) SCR 662 Sinha J. gave some very good illus trations from a number of recent decisions in which on similar facts this Court took con trary views on giving death penalty to the convict. He finally observed that courts in the matter of sentencing act differently al though the fact situation may appear to be somewhat similar and further it is evident that different benches had taken different view in the matter. " 40. In the case of Prakash Dhawal Kltairnar v. State of Maharashtra, 2001 (Suppl.) ACC 742 (SC) the Apex Court had reduced the sentence of death following the law enunciated in the case of Rajendra Prasad v. State of U. P. , (1979) 3 SCC 646 that count ing the casualties is not the main criteria for sentencing to death nor recklessness in the act of murder. The Court taking the cue from the English legislation on abolition of death sentence by suggesting that life im prisonment which strictly means impris onment for the whole of the mans life, but in practice amounts to incarceration for a period between 10 and 14 years, may at the option of the convicting Court, be subject to the condition that the sentence of impris onment shall last, as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being let at large. According to the Court this may take care of the judicial apprehension that unless physically liquidated the culprit had some remote time to repeat murder. In that case also the accused appellant had gun down his own brother, 4 members of his brothers family and his mother. 41. In the case of Ram Anup Singh and others v. State of Bihar, 2002 (45) ACC 1136 (SC) four innocent lives were lost in the incident. The Apex Court observed that there is no evidence on rec ord to suggest that appellants are the men ace to society as is evident by their past deeds. It is not possible to conclude that they cannot be reformed or rehabilitated and they constitute a continuing threat to the society. The Apex Court observed that there is no evidence on rec ord to suggest that appellants are the men ace to society as is evident by their past deeds. It is not possible to conclude that they cannot be reformed or rehabilitated and they constitute a continuing threat to the society. The Court, therefore, did not find it safe to confirm the sentence of death awarded by the High Court to 6 some of the appellants, instead sentenced them to suffer rigorous imprisonment for life with the condition that they shall not be released before completing the actual term of 20 years including the period already under gone by them. 42. The Supreme Court, In the case of Amrit Singh v. State of Punjab AIR 2007 SC 132 where a mi nor girl of 7-8 years was raped and mur dered, did not find it as one of the rarest of the rare case and converted the sentence of death awarded to the appellant by the Trial Court and confirmed by the High Court to rigorous imprisonment for life. 43. Coming to the facts of the present case, it is undoubtedly proved that the appellant had committed the rape and mur der of the girl. The circumstances of the case, however, reveal that the manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of the appellant, seeing a lonely girl at a secluded place. He had no premeditation for commission of the of fence. The offence may look heinous and brutal but under no circumstance it can be said to be a rarest of rare case. Under the circumstances of the case it cannot be said that death sentence is the only option and the alternative of awarding the life impris onment is foreclosed. It is also difficult to say, that the appellant is a menace to the society or that he is likely to continue criminal acts of violence as would consti tute a continuing threat to the society. There is nothing on record which could suggest that the appellant was having any criminal antecedent prior to this incident or he is a hardened criminal. He is unmarried and aged about 22 years on the date of oc currence, per his statement under section 313 Cr. There is nothing on record which could suggest that the appellant was having any criminal antecedent prior to this incident or he is a hardened criminal. He is unmarried and aged about 22 years on the date of oc currence, per his statement under section 313 Cr. P. C. We, therefore, feel hesitant in endorsing the death penalty awarded to him by the Trial Court. 44. But this leads to a more important question about the punishment commensu rate to the appellants crime. The sentence of imprisonment for a term of 14 years that goes under the euphemism of imprison ment for life is equally, if not more, unacceptable to us. The Supreme Court in the cases of Subhash Chandra v. Kishan Lal and others, 2001 (42) ACC 1048 (SC) Shree Bhagtvan v. State of Rajasthan, 2001 (6) SCC 296 Prakash Dhmval Khairnar (Patil) v. State of Maharashtra (supra), Ram Anup Singh and others v. State of Bihar (supra), Nazir Khan v. State of Delhi 2003 (47) ACC 712 (SC) = 2003 (12) AIC 401 (SC) and Amrit Singh v. State of Punjab (supra) has substituted death pen alty by life imprisonment or in some cases imprisonment for a term of 20 years with a direction that the convict would not be re leased for the rest of his life or until the 20 years term is actually served out, mainly on two premises, one, an imprisonment for life in terms of section 53 read with section 45 of the IPC meant imprisonment for the rest of life of the prisoner and, two, a convict undergoing life imprisonment has no right to claim remission. 7 45. In the light of the discussion made above, we are clearly of the view that, in the case before us, there is a good and strong basis to substitute the death sen tence to life imprisonment with the direc tion that the appellant shall not be released until the 20 years term is actually served out and only thereafter the State may con sider his case for premature release or commutation etc. under its norms for re mission and commutation of sentence. 46. under its norms for re mission and commutation of sentence. 46. In this view of the matter, we de cide the appeal and reference as under: - (I) Capital Jail Appeal No. 6253 of 2007 preferred by appellant Omkar Pal is dismissed subject to the modification that the sentence of death awarded to the said appel lant under section 302 IPC is sub stituted with rigorous imprison ment for life. However, we make it clear that the sentence of life im prisonment under section 302 IPC shall run for a minimum actual period of rigorous imprisonment for 20 years and only thereafter the State may consider his case for remission under its norms for commutation and remission of sentence. (II) Criminal Reference Mo. 22 of 2007 under section 366 (2) Cr. P. C. For confirmation of death sentence awarded to appellant Omkar Pal is rejected. .