Amitava Roy, J.;- Whereas the death reference arises out of the judgment and order dated 21.12.2009 passed by the learned Additional Sessions Judge, FTC No. 3, Guwahati, in Sessions Case 309(K)/2009 convicting the accused therein under Sections 376(2)(f)/302 IPC (for short hereafter referred to as the Code) sen­tencing him to death, the appeal has been pre­ferred therefrom by him from jail. 2. We have heard Mr. J. M. Choudhury, Sr. Advocate appearing as the Amicus Cu-riae for the accused/appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam, for the State. 3. The facts disclose an episode of beastly lust and gruesome cruelty of barbaric dimen­sions let loose on an innocent hapless child of three years. The name of the victim girl, we shall not record lest it adds insult to her hu­man dignity so savagely defiled. These prefa­tory observations, we add are our nascent reactions to the gory incident, however, with­out reference to the accused/appellant in any manner- this Court being aware that the le­gality and/or validity of the conviction as well as the sentence is sub-judice in the present appeal. 4. The prosecution's factual account is that the victim along with her elder sister Sultana Khatoon had, on 17.10.2007 during the Durga Puja, visited the Nepali Mandir to en­joy the festivities. From there the victim had gone missing and inspite of frantic search made by the elder sister, she was nowhere to be found. In the process of her search, the accused person when asked, pointed out the place where the victim was found lying in a critical state by the side of a drain. The ac­cused, it is alleged had indicated the place, on being paid a sum of Rs. 10/- in cash on his demand. On the detection of the body of the victim who then was gasping for life, the ac­cused tried to flee but was apprehended by the persons present. The victim and the ac­cused were thereafter taken to the Paltan Bazar Police Station where a verbal information was lodged accusing the accused of hav­ing committed rape on the victim and leaving her in a moribund state to die. The victim though thereafter was sent to the hospital, she expired at about 1.30 A.M. next day. The victim and the ac­cused were thereafter taken to the Paltan Bazar Police Station where a verbal information was lodged accusing the accused of hav­ing committed rape on the victim and leaving her in a moribund state to die. The victim though thereafter was sent to the hospital, she expired at about 1.30 A.M. next day. The FIR with the above allegations was lodged thereafter with the said Police Station on 18.10.2007 by the father of the victim where­upon Paltan Bazar P. S. Case No. 66172007 under Section 376(2)(f)/302 IPC was regis­tered. Investigation followed and on the com­pletion thereof a charge sheet was laid against the accused appellant under the aforemen­tioned provisions of the Code. The offence being one triable exclusively by the Court of Sessions, on the culmination of the committal proceedings, the learned Trial Court framed charge against the accused under the afore­mentioned provisions of the Code to which he pleaded "not guilty" and claimed to be tried. The prosecution at the trial examined 10 wit­nesses, which included the medical witness who proved the post mortem report and also the Investigating Officer. Statements of the accused was recorded under Section 313 of the Cr. P. C. and by the impugned judgment and order after affording due opportunity of hearing to the accused on the question of sen­tence, he was sentenced to death. 5. Mr. Choudhury has assiduously argued that there being neither any eyewitness to the complicity of the accused nor a string of cir­cumstantial evidence unerringly pointing thereto, his conviction and sentence is per se unsustainable in law and is liable to be inter­fered with. The learned Amicus Curiae pleaded that the presence of the accused near the place of occurrence, his conduct of dis­closing the situs of the victim and his reflex to flee from the scene even if accepted do not ipso facto unmistakably prove his involvement in the offence alleged. Without preju­dice to the above, Mr. Choudhury has urged that there being no seizure in accordance with law of the undergarments of the accused and as his blood sample as well had not been col­lected for necessary forensic examination; there exists no worthwhile proof to establish his involvement in the alleged crime and that, therefore, the impugned judgment and order being obviously flawed ought to be interfered with in the interest of justice. Underlining the fact that the evidence of the prosecution wit­nesses taken as a whole does not testify a pre-planned and calculated cold blooded murder of the victim girl by the accused, the learned Sr. Counsel has urged that having re­gard to the fact that he at the relevant time was in his early twenties without any criminal antecedent, death sentence is clearly unwar­ranted and if sustained would amount to trav­esty of justice. There being no special reason whatsoever to justify his conviction, it is a fit case, the learned Amicus Curiae pleaded that the accused ought to be acquitted of the charge. In the alternative, he has argued that in any view of the matter, death sentence ought not to be confirmed by this court in the facts and circumstances of the case. To buttress his arguments, Mr. Choudhury has placed reliance on the decisions of the Apex Court in Machhi Singh & Ors. Vs. State of Pun­jab, (1983) 3 SCC 470 , Bachan Singh etc. Vs. Union of India, (1980) 2 SCC 684 , Surendra Pal Shivbalakpal Vs. State of Gujarat, (2005) 3 SCC 127 and Dilip Premnarayan Tiwari Yadav Vs. State of Maharashtra, AIR 2010 SC 361 . 6. The learned Public Prosecutor as against this has contended that absence of eyewitness notwithstanding the chain of incriminating circumstances irrefutably correlate the accused with the heinous offence committed on the helpless victim and that, therefore, the impugned judgment and order is valid. Pleading that the accused was known to the victim as the evidence on record attests, he has insisted that the series of events following her absence from the puja pandal till her recovery establish beyond doubt his (accused) culpability and, therefore, his conviction and sentence in the facts and circumstances of the case is fully justified. Referring to the inculpatory factors namely detection of the accused with a wet gamocha (towel) around his waist near the place of occurrence, his readiness to show the place of concealment of the body of the victim if remunerated therefor, the detection of the body of the vic­tim sealed in a gunny bag by the side of a drain, his attempt to flee from the place of occurrence immediately thereafter, the match­ing of the blood stains in his undergarments with the sample thereof of the victim girl, medi­cal opinions, his admissions in course of his statements under Section 313 Cr. P. C. dis­closing his knowledge about the place of con­cealment of the dead body etc., Mr. Kamar strenuously argued that all these taken cumu­latively unequivocally identify the accused to be the perpetrator of the crime and thus the impugned judgment and order cannot be faulted with. According to Mr. Kamar, the brutality with which the offence had been committed on a defenceless child taking ad­vantage of her tender age and innocence, death sentence is warranted, having regard as well to the depraved conduct of the ac­cused to destroy the only evidence of his pos­sible identification. Not only the facts and cir­cumstances reveal that the offence was a pre­planned and a diabolically designed one to lure the child, ravish and eliminate her, the accused deserves no mercy and, therefore, the death sentence awarded ought to be sus­tained, he urged. The learned public prosecu­tor, relied on the evidence of the prosecution witnesses and also the statement of the ac­cused recorded under Section 313 Cr. P. C. to reinforce his arguments. He also rested the same on the decision of the Apex Court in Hate Singh Bhagat Singh Vs. State of Madhya Bharat, AIR 1953 SC 471 and of this Court in Pandov Koya Vs. State of As­sam, 2006 (1) GLT 267 and State of Arunachal Pradesh Vs. Ronda Basumatary, 2010 (1) GLT 679. 7. A brief survey of the evidence on record would be essential to appropriately appraise to competing arguments, P W 1, Apin Dulal introduced himself to be an old acquaintance of Sukur AH, the father of the deceased. In his averment on oath, he claimed to know the accused as well as the victim. He testified that at about 7 P.M. on the date of the incident, when he was sitting in front of his shop at Solapara, he saw the victim and her elder sis­ter proceeding to see Durga Puja at Nepali Mandir, Paltan Bazar. A little while thereafter the elder sister informed him that the victim had gone missing and that her whereabouts are not known. On receiving this information, the witness along with one Fatik Gulzar, (PW3), and the elder sister of the victim pro­ceeded towards Nepali Mandir. On seeing the accused coming wearing a wet gamocha (towel), the witness asked him about the vic­tim to which the latter replied that he would show her if he was paid Rs.20/-. On receiving this information, the witness along with one Fatik Gulzar, (PW3), and the elder sister of the victim pro­ceeded towards Nepali Mandir. On seeing the accused coming wearing a wet gamocha (towel), the witness asked him about the vic­tim to which the latter replied that he would show her if he was paid Rs.20/-. As the wit­ness agreed to pay the amount demanded, the accused led him to Solapara and taking him to the edge of a drain near Nepali Mandir stated that the victim would be found by the side of a pipe. The witness acting on the instructions went closer to find a gunny bag in an abandoned state. When he looked behind, he found that the accused had escaped. The witness then ran after him and apprehended him near the temple. The accused, however, could manage to slip off and attempted to board a city bus, which was however inter­cepted by the witness whereafter, the accused person was drawn down therefrom. Accord­ing to the witness, though he had chased the accused, Gulzar verified the gunny bag and on his return with the accused informed him that the dead body of the victim had been found inside. Nothing significant to the con­trary however, was elicited from this witness in his cross examination. 8. PW2, Sri Parimal Dey, proved the sei­zure of the gunny bag, Material Exhibit 1, vide Exhibit 1, on which he proved his signature Exhibit 1 (1). He testified that on the date of occurrence at about 8.30 P.M., the police called him to the place of occurance near the drain and showed him a gunny bag with the dead body of a girl aged 3/4 years inside it. 9. PW3, Gulzar Ali, is the brother of the deceased. According to this witness, while he was at home on the date of occurrence, the elder sister of the victim had returned a little after she had gone out with her to see puja at Nepali Mandir and informed him that her sister had gone missing. The witness then along with P W1 went in search of the missing girl and while near the Nepali Mandir located the accused with a wet gamocha. On being confronted by him, the accused agreed to show his sister if paid Rs.5/- for a meal. The witness then along with P W1 went in search of the missing girl and while near the Nepali Mandir located the accused with a wet gamocha. On being confronted by him, the accused agreed to show his sister if paid Rs.5/- for a meal. On being paid the said amount, the witness and P W1, were led by the accused to a dirty spot near the temple and ran away from the place. On this PW1 chased him. At about the same time PW4 had arrived at the place of occurrence and was acquainted with the develop­ments. He stated further that having searched the place with a lighted matchstick, he saw a gunny bag lying by the side of the drain and opening the mouth thereof, he found the vic­tim therein. According to the witness, she was still living. He retrieved her from the gunny bag and took her home and handed her over to her mother whereafter she was taken to the hospital. The witness claimed to have led the police to the place of occurrence and showed the gunny bag. He proved the gunny bag, Material Exhibit 1 and his signature, Ex­hibit 1 (2) on the seizure list. The witness con­firmed that the dead body of the victim was taken to the Gauhati Medical College and Hospital. In cross-examination, this witness stated that the place where the gunny bag lay was about 30-40 feet away from the puja pandal of the Nepali Mandir and was being used as a dumping ground. 10. PW4, Md. Karem Ali, deposed that he knew the victim girl and her father. He stated that at about 8.30 P.M. on the date of the occurrence while he was returning after enjoying a movie in the Meghdoot Cinema Hall, he met PW1 and PW3 who informed him that the victim was not being found. He then joined them in the search. He confirmed to have met the accused at that point of time and on being asked the whereabouts of the victim, he agreed to disclose the same if paid Rs.20/-. The witness offered to pay him Rs.30/-. On that the accused directed them to look on the right side of the drain near Nepali Mandir. As the witness and Gulzar proceeded towards the place as shown by the accused, he (accused) started to run and was followed by PW1. The witness offered to pay him Rs.30/-. On that the accused directed them to look on the right side of the drain near Nepali Mandir. As the witness and Gulzar proceeded towards the place as shown by the accused, he (accused) started to run and was followed by PW1. The witness stated that in course of their search they found blood trickling out of a gunny bag lying by the side of the drain indicated and when they opened it, they found the victim inside. The witness stated that then PW3 took the victim out of the gunny bag and took her to her mother. He also corroborated that the accused was apprehended by PW1 and that at the time when he showed the spot where the gunny bag was lying, he was wearing a gamocha (towel). In cross-examination, he stated that the victim and her four siblings used to go out seeking alms. 11. PW5, Smt. Banu Kaur, deposed that on the date of occurrence, she found the vic­tim's mother carrying her on her shoulder. When asked by the witness, the latter in­formed her (PW5) that her daughter had been raped. The witness then accompanied the victim's mother to the Paltan Bazar Police Station. 12. PW6, Smt. Sahera Khatoon, the mother of the victim stated that on the date of occurrence the victim and her elder sister had gone out to see puja whereafter about an hour later, the elder sister returned with the news that the victim's whereabouts are not known. The witness stated that her sons and neigh­bours went in search of the victim. A little later her son, P W3, returned carrying the victim in his arms. The witness stated that the victim was still then alive. She stated that though she was then wearing a frock, her under garments were missing. The witness also stated that the victim had a depressed fracture on her scalp, cut below her eye and injury in her waist. She then took the victim to the Paltan Bazar Po­lice Station. She testified that her son Gulzar, P W3, had told her that the accused had killed her daughter. 13. PW7, Dr. The witness also stated that the victim had a depressed fracture on her scalp, cut below her eye and injury in her waist. She then took the victim to the Paltan Bazar Po­lice Station. She testified that her son Gulzar, P W3, had told her that the accused had killed her daughter. 13. PW7, Dr. Pradip Thakuria, who at the relevant time was serving as Assistant Pro­fessor, Forensic Medicine, Gauhati Medical College, deposed that on 18.10.2009 one dead body in connection with Paltan Bazar P. S. Case No. 661/07 was brought for post mortem examination which was performed by Dr. A. P. Baruah, Demonstrator Forensic Medicine. He confirmed that the dead body was of the victim and was accompanied by Constable No. 109, Sri Birendra Pandey as well as her father. The following injuries, ac­cording to the witness, had been detected on the victim. " 1. An abrasion with contusion of size 1 cm x 1 cm present on the right index finger. Pressure abrasion. 2. Pressure abrasion of size 6 cm x 6 cm present on the right check with central lacerations. 3. An abrasion of size 4 cm x 2 cm on the front of the neck of the right side in the middle with contusion. 4. Lacerated injury of 2 cm x .5 cm is present on the chin. 5. Scalp is depressed on the left side. On dissection the scalp is contused. A comminuted depressed fracture of 8 cm x 6 cm on the left frontal temporo parietal region. The underlying left frontal lob of brain is lacerated. 6. Lacerated injury of size 4 cm x 2 cm x 2 cm is present on each side of the vaginal introits extending upto the rectum exposing the mucasal layer of rectum. Dried blood clots are found attached to the margin. 7. Subdural hemorrhage is present on both side of the brain. Nail scrapings, 5ml. of blood sample on DTA vial and sample in bloating paper preserved. Vaginal swab is preserved along with the wearing garments. Vaginal smears are negative for spermatozoa. 14. According to the medical opinion of­fered, death was due to coma as a result of the head injuries sustained. Injury No. 6 was opined to be suggestive of forceful sexual in­tercourse. of blood sample on DTA vial and sample in bloating paper preserved. Vaginal swab is preserved along with the wearing garments. Vaginal smears are negative for spermatozoa. 14. According to the medical opinion of­fered, death was due to coma as a result of the head injuries sustained. Injury No. 6 was opined to be suggestive of forceful sexual in­tercourse. The age of the victim was stated to be above 2 years and between 5 years and the injuries ante mortem caused by blunt weapon homicidal in nature. This witness proved the post mortem report, Exhibit 2 with the signature of Dr. A. P. Baruah, as Exhibit 2(1), known to him. He also proved the in­quest report, Exhibit 5 with the signature of Dr. A. P. Baruah who, according to the wit­ness had left the Gauhati Medical College and Hospital. He in particular affirmed that the injury No. 5 may be caused by a heavy blunt object like stone. 15. PW8, Smt. Sultana Begum, the elder sister of the victim endorsed the statements made by PW1, PW3, PW4 and PW6 about her accompanying the victim to the Nepali Mandir to enjoy the Durga Puja on the date of occurrence. She stated that when she along with her sister were enjoying puja at Nepali Mandir, she noticed the accused standing be­hind them and that a little later the victim was not to be seen there and so also the accused. After searching for her sister nearby she went back home and informed about the incident to her mother. On hearing the news, her brother, Gulzar, PW3, PW1 and one Fatik went in search of the victim and some time thereafter they returned with her. 16. PW9, is the father of the deceased who stated that at the relevant time he was bed ridden being sick. He affirmed that on the date of the occurrence, in the afternoon, her daughters had gone out to see Durga Puja and PW8 returned a little later complaining that the victim had gone missing. According to this witness, getting the news, his son Gulzar, PW3, went in search for her. Out of his concern, he also endeavoured to proceed towards Paltan Bazar but returned thereafter being unwell. He was then informed by his neighbours that his wife had taken the victim to the hospital. According to this witness, getting the news, his son Gulzar, PW3, went in search for her. Out of his concern, he also endeavoured to proceed towards Paltan Bazar but returned thereafter being unwell. He was then informed by his neighbours that his wife had taken the victim to the hospital. The witness stated that PW3 had told him that the victim had been killed and kept in a gunny bag. He proved the FIR Exhibit 6 and his signature thereon Exhibit 6(1). In cross examination, the witness af­firmed that a verbal information was lodged by his wife at the Paltan Bazar Police Station and that the FIR had been written by a police man on which he put his signature. 17. P W10, Shri Hema Saikia, on the date of occurrence was attached to the Paltan Bazar Police Station. He stated that at about 9 P.M., Smt. Banu Kar, PW5, and some oth­ers brought a three years old girl to the Police Station in a bleeding and critical condition. Along with them, one Sujit Biswas was also brought there who according to the personss who had apprehended him had committed rape on the victim. On receiving the informa­tion, the Officer-in-Charge made G. D. Entry No. 825 dated 17.10.2007 and entrusted the investigation to the witness. The Investigating Officer then sent the victim to the Hospital and seized the vest of the person apprehended and also sent him to the hospital. He then proceeded to the place of occurrence as led by the witnesses whose statements he had recorded. According to this witness, the place where the gunny bag was detected was about 20-25 feet away from Nepali Mandir and by the side of a 15 feet wide drain full of water. The gunny bag was shown by Gulzar, PW3, stating that the victim had been put inside it and that its mouth has been tied. The witness then seized the gunny bag vide Exhibit 1, the seizure list. The witness identified the gunny bag as Material Exhibit 1 in Court. He further stated that near the place there was an abandoned wooden house in a dilapidated condition, where rubbish and filth were used to be dumped. He testified that the place was not frequented by the people. He proved the sketch map, Exhibit 7 with his signature, Exhibit 7(1) thereon. He further stated that near the place there was an abandoned wooden house in a dilapidated condition, where rubbish and filth were used to be dumped. He testified that the place was not frequented by the people. He proved the sketch map, Exhibit 7 with his signature, Exhibit 7(1) thereon. He also proved the ejahar, Exhibit 6 with the signature Exhibit 6(2) of the Officer in Charge of the Paltan Bazar Police Station. He deposed to have sent the dead body for post mortem exami­nation vide Exhibit 4 and seized the blood stained frock with pink floral design and a green' sporting' worn by the victim vide sei­zure list, Exhibit 8. He identified the wearing apparels as above of the victim as material exhibit 2. He also testified to have sent the victim's wearing apparels and the brief worn by the accused to the forensic laboratory for analysis and collected the relevant reports. 18. The accused in course of his state­ments under Section 313 Cr. P. C. while an­swering to the various questions put to him disclosed that he was a rickshaw puller by profession with his original home at Coochbehar. He has admitted to know the witnesses Apin Dulal (PW1), Gulzar Ali (PW3) and Karem Ali (PW4). He disclosed that during daytime, he also foraged iron scraps and indulged in thefts at nights. He admitted to have shown the spot where the victim lay but denied to have demanded money therefor. He also denied to have fled from the scene as alleged. When confronted with the specific question as to what has been his reply when PW3, Gulzar Ali had enquired of him of the victim, he stated that he showed it as he had seen her. According to the ac­cused, that night he saw the victim lying by the side of the drain as he had gone there to ease himself. He confirmed that till then the victim had not died. He stated that the wit­ness, P W1, dragged him down from the bus and assaulted him but reiterated that he did not kill the victim. He however affirmed the seizure of his 'pants' by the police. He also denied to have put the victim inside the gunny bag. While answering the questions bearing on the sentence, the accused represented that he had not touched the victim and was inno­cent. He however affirmed the seizure of his 'pants' by the police. He also denied to have put the victim inside the gunny bag. While answering the questions bearing on the sentence, the accused represented that he had not touched the victim and was inno­cent. He stated that his parents were dead and had uncles from both sides and that he had not married and survived by pulling rick­shaw and committing theft. 19. The conspicuously demonstratable feature of the prosecution case is the absence of any eyewitness of the sordid acts of the perpetrator to which the victim was subjected in the process of her ravishment and elimina­tion. The circumstantial evidence projected by prosecution witness thus would have to be closely analysed to ascertain the involve­ment or otherwise of the accused in the crime. To this effect, the evidence of PW1, PW3, and PW4, corroborate and substantiate each other on material particulars. On receiving the information about the sudden absence of the victim from the precincts of the Nepali Mandir where she along with her elder sister Sultana were enjoying the festivities of Durga Puja and the unsuccessful endeavours made to trace her whereabouts, PW1 and PW3 (who is in­cidentally the brother of the victim) immedi­ately proceeded towards Nepali Mandir where they happened to meet the accused on the move wearing a wet gamocha. On be­ing asked by them about the victim the ac­cused volunteered to show them the place where she would be available, if paid there for. As the aforementioned witnesses agreed to accede to his demands, the accused led them to the edge of a drain near the Nepali Mandir with the information that the victim would be found by the side of a pipe. After this the ac­cused tried to escape. At that point of time, PW4 joined PW1 and PW3 and could learn from them these developments. While PW1 ran after the accused and could apprehend him from a bus in which he had boarded. PW3, having noticed a gunny bag near the pipe as shown by the accused opened the same and could locate the victim inside, in a bleeding state but living. PW1 by then had joined this witness along with PW4, Karem Ali. While PW1 ran after the accused and could apprehend him from a bus in which he had boarded. PW3, having noticed a gunny bag near the pipe as shown by the accused opened the same and could locate the victim inside, in a bleeding state but living. PW1 by then had joined this witness along with PW4, Karem Ali. The body was retrieved from the gunny bag and was handed over to the victim's mother at her home to be thereafter taken to the Gauhati Medical College Hospital enrooted Paltan Bazar Police Station where a verbal information about the incident was lodged on the very same date. While doing so, the ac­cused was also taken to the police station, he meanwhile having been apprehended and as­saulted by the persons who had gathered at the place of occurrence. The testimony of PW1, PW3 and PW4 supplement each other and have remained intact in essence inspite of the cross-examination made on behalf of the defence. 20. PW2 and PW5 are the witnesses to the seizure of the gunny bag, material exhibit (1) having duly signed the seizure list exhibit 1. The evidence on record reveals that the first information on which the G D. Entry was made in the Paltan Bazar Police Station was lodged by PW5 who had accompanied the victim and her mother along with others and the accused immediately after the detection of the body in the gunny bag at the place shown by the accused. PW6 and PW9, the mother and father of the victim authenticated each other's evidence about the two sisters going out on the date of the occurrence to enjoy the puja celebrations at the Nepali Mandir, information about the non-traceability of the victim by her elder sister, the search made by PW1, PW3 and PW4 for her and the recovery of her body from inside the gunny bag by the side of a drain adjacent to the Nepali Mandir. PW6 in particular stated that at the time when the victim was handed over to her she was still breathing and that though she was retaining the frock worn by her, her 'pants' were missing. She also stated about a depressed fracture together with a cut below her eye with an injury in her waist. PW6 in particular stated that at the time when the victim was handed over to her she was still breathing and that though she was retaining the frock worn by her, her 'pants' were missing. She also stated about a depressed fracture together with a cut below her eye with an injury in her waist. Sulatna Begum, the elder sister of the victim who had been by her side at the point when she had gone missing reiterated that while they were enjoying the puja the accused was standing behind them and that a little later her younger sister could not be traced. She stated that the accused was also not to be seen and after making a desperate search for her sister, she went back home to report about the incident whereafter PW1, PW3 and one Fatik launched a search for the victim. 21. Dr. Pradip Thakuria who had proved the post mortem report and the inquest re­port with reference to the injuries found on the dead body rendered his expert opinion that death was due to coma as a result of head injury sustained which were ante mortem in nature caused by blunt weapon. In categori­cal terms, he stated that injury No. 6 was sug­gestive of forceful sexual intercourse. The age of the victim girl was opined to be 2 to 5 years. This witness stated that the injury No. 5 i.e. depression of scalp could be caused by heavy blunt object like stone. The post mortem report and the inquest were exhibited and proved as Exhibit No. 2 and Exhibit No. 5 with the signatures of Dr. A. P. Baruah thereon as Exhibit 2(4) and 5(1). PW10, the Investi­gating Officer testified about the steps taken by him progressively in course of the investi­gation which included amongst others seizure of the gunny bag, Material Exhibit (1), post mortem examination of the dead body, fo­rensic examination of the essential biological extracts from the dead body as well as of the wearing apparels of the victim and the under garments of the accused seized by him. He duly proved the FIR, Exhibit (6), the seizure list, Exhibit 1 of the gunny bag, the inquest report, Exhibit 5, seizure list of the blood stained wearing apparels; Exhibit 8, the re­port of the forensic science laboratory. Exhibit 10 and identified the said article of seizure. He duly proved the FIR, Exhibit (6), the seizure list, Exhibit 1 of the gunny bag, the inquest report, Exhibit 5, seizure list of the blood stained wearing apparels; Exhibit 8, the re­port of the forensic science laboratory. Exhibit 10 and identified the said article of seizure. Material Exhibit 1 and also the seized apparels, Material Exhibit 2. This witness sig­nificantly was not cross examined on the as­pect of seizure and identification of the seized articles as well as the report of the forensic science laboratory. He was not confronted either with the statement of any of the other witnesses of the prosecution to be proved with reference to the case diary for contradicting them. 22. The report of the forensic science labo­ratory, exhibit 10 establishes the presence of the blood of the victim in the underwear of the accused. Incidentally in the letter dated 18.10.2007, Exhibit 3 of the Investigating Officer forwarding the dead body to the po­lice surgeon, Gauhati Medical College Hos­pital requiring the post mortem examination thereof, vaginal swab, blood stain, semen and human tissue in the nail of the deceased were requested to be preserved for scientific ex­amination along with her wearing garments. The post mortem report accordingly disclose that following were preserved: (1) Nail scrappings, (2) 5 ml of blood sample is preserved in Ethylene dynamic terra acetic acid Vial and one sample in bloating paper. (3) Vaginal swab with the wearing gar­ments (handed over to the escorting police constable for analysis at the forensic science laboratory. 23. The report of the forensic science laboratory; Exhibit 10, discloses that the blood samples of the victim and visible in her wear­ing apparel matched with the human blood of the same group present in the underwear of the accused. Though a persistent endeavour had been made on behalf of the accused to discard this finding by questioning the validity of the seizure of the under garment of the accused in the face of Exhibit 8, the seizure list proved by the Investigating Officer as well as the admission of the accused in this regard coupled with omission on the part of the de­fence to cross examine the Investigating Of­ficer to this effect, we do not feel persuaded to reject the result as contained in the report. This finding thus vividly establish a nexus between the accused and the injuries sustained by the victim as available first in point of time as detected by her mother, P W6 substantiated by the inquest report and finally the post mortem report. 24. Adverting to the post mortem report, it is obvious therefrom that the victim had been subjected to forceful sexual intercourse as a result whereof she suffered grievous injuries in her vagina stretching to her rectum expos­ing the mucosile larynx thereof. Not only her index finger, right cheek and chin disclose signs of contusion caused by heavy pressure ex­erted, her scalp was found to be depressed on the left sidewith a contusion beneath lead­ing to laceration of the brain which according to the medical opinion could be caused due to a heavy blunt weapon like a stone. It is thus evident that the helpless child was over powered by someone disproportionately stronger than her and subjected to ruthless carnal lust with demoniac savagity and then murdered with devilish cruelty so as to elimi­nate the only possible witness of such hei­nous and inhuman acts of perversion. The circumstantial evidence as recited hereinabove when considered in conjunction with the above revelations leaves no manner of doubt that the accused appellant and none else is the offender. That he was aware of the inci­dent, of the place of concealment of the vic­tim and her dying state is borne out by his statements recorded under Section 313 CrPC. As noticed hereinabove, he also had admitted the seizure of his vest by the police after his arrest. His plea that he could spot the victim girl when he had gone to ease him­self at that place is wholly unconvincing. It is incomprehensible that had it been so with the knowledge that the victim was sinking in a critically injured condition he would abstain from taking steps to bring it to the notice of the passers by for her recovery and immedi­ate medical treatment. His indifference to the victim though fully aware of her sagging state and his insistence for money to disclose the information about her to PW1, PW3 and PW4 as proved by them only establish his reprehensible mental frame and condemnable lack of concern for a fellow human being and that too a dying child of tender years. 25. That the statement of an accused re­corded under Section 313 Cr. 25. That the statement of an accused re­corded under Section 313 Cr. P. C. (previ­ously Section 342) can be received in evi­dence and treated to be so at the trial like any other piece of evidence furnished by a witness has been propounded by the Apex Court in Hate Singh Bhagat Singh (supra). While reiterating this enunciation their Lordships in State of U. P. Vs. Lakhimi (supra) disapproved the view expressed by the jurisdictional High Court that such a statement was of no utility, if it contains inculcator constituents. While observing that the need for examining the accused with reference to incriminating evidence appearing against him is not a mere formality or observance of a ritual in a trial, it was held that in very rare instances the accused may admit or own incriminating circumstances adduced against him, their Lordships propounded that if an accused admits any incriminating circumstance appearing against him, there is no warrant that the same should be ignored merely on the ground that those had been advanced as a defence strategy. 26. In State of Maharastra Vs. Suresh (supra) three possibilities as a consequences of an accused pointing out the place of con­cealment of a dead body or an incriminating material without admitting himself to be the author thereof were stated, namely (a) he him­self had concealed it or (b) he had seen some­body concealing it or (c) he had been told by another person about the concealment. Their Lordships observed that if the accused de­clined to disclose to the criminal Court that his knowledge about the concealment was on account of one of the last two possibilities, it is open for it (Court) to presume that it was concealed by the accused himself. 27. We are therefore of the unhesitant opinion on a scrutiny of all relevant aspects as alluded hereinabove as well as on a total­ity of the consideration relating thereto that the accused had been the perpetrator of the offence as a result whereof the victim had succumbed to the brutal violation of her body and deadly injuries sustained. The conviction of the accused under Section 376(2)(f) and 302 of the Code as recorded by the learned Trial Court is hereby upheld. 28. The conviction of the accused under Section 376(2)(f) and 302 of the Code as recorded by the learned Trial Court is hereby upheld. 28. Whereas the punishment prescribed for 376(2)(i) is imprisonment for a term which should not be less than 10 years but extend­able to that for life as well as fine, the one for murder under Section 302 of the Code, is death or imprisonment for life together with fine. Section 354(3) of the CrPC, 1973, requires that when the conviction is for an offence punishable with death or in the alter-native with imprisonment for life or imprisonment for a term often years, the judg­ment should state the reason for the sentence awarded and in the case of sentence of death, special reasons for such sentence. As the death reference before this Court is for con­firmation or otherwise of the death sentence awarded by the learned Trial Court, the quest therefore would be for special reasons, if any, warranting the same. 29. The authorities cited at the bar in this regard deserve attention at this juncture. A constitution Bench of the Apex Court in Bachan Singh (supra) while rejecting the chal­lenge to the constitutionality of the prescrip­tion of death penalty and the perceived unguided discretion vested in the Courts to impose the same under Section 354 of the Code elucidated the standards and norms outlining the permissible eventualities for im­position of the same and broadly indicated the aggravating and mitigating circumstances pertaining thereto. Dwelling in extenso on the various decisions on the issue as well as the relevant reports of the Law Commission and several topical studies, their Lordships under­lined the imperative of balancing the aggra­vating and mitigating circumstances for de­ciding finally as to whether death penalty was called for in the facts and circumstances of a case. The Apex Court sounded a word of caution that the scope and concept of the mitigating factors as acknowledged and taken note of in the area of death penalty should receive a liberal and expansive construction. While reminding that the judges should never be blood thirsty and that hanging of murderers had never been too good for them, it was emphasised that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. While reminding that the judges should never be blood thirsty and that hanging of murderers had never been too good for them, it was emphasised that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. Their Lordships were of the view that a real and abiding concern for the dignity of human life postulates resist­ance to taking a life through law's instrumen­tality and that it ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. The miti­gating circumstances amongst others noticed with approval are: (1) That the offence was committed un­der the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the ac­cused is young or old, he shall not be sen­tenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. (5) The belief, which the accused con­ceived that he was morally justified in committing the offence. (6) The accused had acted under the duress or domination of another person. (7) That the accused was mentally de­fective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 30. This view reverberated in Machhi Singh (supra) wherein their Lordships of the Apex Court while reiterating that the extreme penalty of death should not be inflicted ex­cept in gravest cases of extreme culpability and that before opting for the death penalty the circumstances of the offender must be taken into consideration along with those of the crime underscoring that life imprisonment is the rule and death sentence is an excep­tion. It was held that 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 when the sentence of im­prisonment for life cannot be conscientiously exercised having regard to all relevant circum­stances. It was obligated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances ought to be given full weight age and a just balance has to be struck between the two sets of considerations. It was obligated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances ought to be given full weight age and a just balance has to be struck between the two sets of considerations. As a matter of guideline, the Courts were required to pose two questions namely whether (i) there was something uncommon about the crime, which renders the sentence of impris­onment for life inadequate and demand a death sentence (ii) there is no alternative but to impose death sentence even after according maximum weigh page to the mitigating circumstances which speak in favour of the offender. 31. In Surendra Pal Shivbalakpal (supra) the accused appellant who was convicted of the offence of rape and murder of a minor girl and sentenced to death by the learned Trial Court was relieved of the death penalty on the consideration that he was at the time of occurrence aged 36 years and that his prior involvement in any other criminal case was not forthcoming. Their Lordships also took note of the fact that he was at the relevant time a migrant labourer from U. P and was living in impecunious circumstances and could not be said to become a menace to the soci­ety in future. 32. The death sentence awarded to one of the accused appellants namely Dilip in Dilip Prem Narayan (supra) was interfered with in the contextual facts thereof on the consideration that he at the relevant time was aged 25 years and was sans any criminal antecedent. Following an exhaustive survey of the above decisions as well as others, a Division Bench of this Court in State of Arunachal Pradesh Vs. Ronda Basumatary (supra) had declined after carefully balancing the aggravating and mitigating circumstances involved therein to sustain the sentence of death awarded to the respondent accused therein on his conviction for rape and murder of a minor girl of 10 years. 33. Having thus noticed the precepts or­dained and the factors recognised by the Courts to decide for or against a death sen­tence, we need to apply the same to the facts of the instant case to ascertain the sustainability of the death penalty awarded to the accused appellant. 33. Having thus noticed the precepts or­dained and the factors recognised by the Courts to decide for or against a death sen­tence, we need to apply the same to the facts of the instant case to ascertain the sustainability of the death penalty awarded to the accused appellant. To start with, the bal­ance sheet of aggravating and mitigating cir­cumstances: AGGRAVATING CIRCUMSTANCES: (1) Age of the victim: 3 to 5 years, help­less, innocent and of tender frame. (2) Absence of any provocation for such devilish desire to ravish someone dispropor­tionately young in age. (3) Apparent perversity and animal instinct unbecoming of a human being. (4) Casual and reprehensible apathy to­wards a dying child seeking remuneration to point out the place of her concealment. (5) Ruthless conduct of eliminating the victim after barbaric assault on her private parts by hitting on the head with a stone and leaving her to die in gunny bag left at an abandoned place. (6) Lack of remorse or penitence for such depraved and unpardonable and inhuman act. (7) Nefarious design to do away with the only witness of the brutal crime shocking the conscience. (8) Attempt to escape from the place of occurrence being apprehensive of the consequence of his wrong doings. (9) Commission of regular thefts at night indicating his deep rooted culpable state of mind. MITIGATING CIRCUMSTANCES: (1) Accused was aged 21 years. (2) Unmarried rickshaw puller living from hand to mouth. (3) No criminal antecedent of the like nature. 34. The aggravating and the mitigating cir­cumstances when placed in juxtaposition, we are of the unhesitant opinion that the former overwhelmingly outweighs the latter. We are left stunned with disbelief by the fiendish and dastardly acts of the accused to satisfy his lascivious urge on a helpless mendicant child belonging to the weakest strata of the soci­ety. It is in evidence that the victim along with her siblings used to beg for their living. The accused was known from before to P W3 and PW4. Incidentally PW3 is the brother of the victim. It is likely that the accused had cast an evil eye on the victim from before the incident and indulged in the desperate attempt to rav­ish her on that date taking advantage of the atmosphere of joyous and careless merriment all around. Incidentally PW3 is the brother of the victim. It is likely that the accused had cast an evil eye on the victim from before the incident and indulged in the desperate attempt to rav­ish her on that date taking advantage of the atmosphere of joyous and careless merriment all around. He not only overpowered the help­less child with his masculine dominion, he dealt with her like a chattel to feed his savage de­sire and then with no compunction mercilessly hit her on the head with a blunt object possi­bly, a stone and left her bound in a gunny bag to die. This, he did to ensure that the place where he left the gunny bag was one for dump­ing rubbish and, therefore, not frequented by people. Though no criminal antecedent akin to the one as above is forthcoming, it is ap­parent on his admission that he has adapted himself amorally to the commission of thefts at night. A well-conceived scheme designed by him to forcibly enjoy the victim and thus to kill her has been executed with utmost preci­sion. This only demonstrates his brutal and desperate nature dehors any compassion or feeling for any co-human being. His admis­sion for remuneration to indicate the place of concealment eminently evinces the degree of his depravity of character unworthy of his continuance as a social being. He thus is a potential hazard for the society and not ame­nable to reform. 35. All the above notwithstanding, as we revert to the aspect of sentence to be awarded, we are left unconvinced that death penalty is the inevitable option in the facts of the case and that life imprisonment cannot by any measure be construed to be an alternative. The accused appellant is young and also belongs to the weaker section of the society. His stealing errands are impelled by his penury and pangs of hunger and destitution. He lives from hand to mouth and is otherwise denied of even minimum reasonable essentials for human existence. No similar criminal antecedent has been brought on record. He however needs to be isolated from the society, being otherwise formidably risky for its healthy and orderly sustenance. We are therefore of the considered view that sentence of life im­prisonment meaning imprisonment for rest of life as expounded by the Apex Court in Swami Sraddhananda Vs. State of Karnataka, 2008 AIR SCW 5110 would meet the ends of justice. He however needs to be isolated from the society, being otherwise formidably risky for its healthy and orderly sustenance. We are therefore of the considered view that sentence of life im­prisonment meaning imprisonment for rest of life as expounded by the Apex Court in Swami Sraddhananda Vs. State of Karnataka, 2008 AIR SCW 5110 would meet the ends of justice. Ordered accordingly. The death reference is answered accordingly. The appeal is rejected.