JUDGMENT Sunil Kumar Sinha, J. 1. This appeal and Criminal Reference arise out of a common judgment dated 23.2.2013 passed in Sessions Trial No. 99 of 2011 by the Second Additional Sessions Judge, Raigarh (C.G.). By the impugned judgment, the appellant/accused has been convicted and sentenced in the following manner:- Conviction Sentence U/S 302 IPC Death sentence (To be executed firstly) U/S 376(2)(f) IPC Life imprisonment and fine of Rs. 10,000/- with default sentence of R.I. for 2 years U/S 201 IPC R.I. for 7 years and fine of Rs. 3,000/- with default sentence of R.I. for 1 year 2. The facts, briefly stated, are as under:- 2.1 Accused was resident of village Karpipali. Shaukilal (PW-14) was resident of village Basnajhar. Shaukilal (PW-14) had two daughters namely Ku. Jyoti (7 years - PW-17) and Ku. Lata (4 years - deceased). The accused used to visit the house of Shaukilal (PW-14), as wife of Shaukilal was treating him as brother in village relation. 2.2 The case of the prosecution is that on 14.6.2011 at about 4.00 p.m. the accused visited the house of Shaukilal (PW-14). He came on his bicycle. At about 7.30 p.m. he took the two daughters of Shaukilal (PW - 17 and the deceased) on the pretext - that he would purchase biscuits etc for them. On the way, the accused said Ku. Jyoti (PW - 17) to go back to her house and he took Ku. Lata (deceased) with him. Jyoti (PW - 17) came to the house and narrated about this to her mother, Meena Bai (PW-1). Meena Bai informed her husband - Shaukilal (PW-14). They made a search of the girl (deceased), but she could not be traced. The accused also could not be traced. Shaukilal (PW 14) then went to village Karpipali on a motorcycle, but, the accused was not there. While he was returning from village Karpipali, he met the accused on the way. When he asked the accused about his daughter (deceased), the accused did not tell - anything. Shaukilal (PW-14) then returned to village Basnajhar and again a search was made. After sometime, the dead body of his daughter (deceased) was found in the village pond. The underwear of the deceased was not on her body. They noticed that blood was coming-out from her private part. The dead body was brought to the Panchayat Bhawan. Shaukilal (PW-14) then returned to village Basnajhar and again a search was made. After sometime, the dead body of his daughter (deceased) was found in the village pond. The underwear of the deceased was not on her body. They noticed that blood was coming-out from her private part. The dead body was brought to the Panchayat Bhawan. 2.3 Shaukilal lodged merg intimation (Ex.-P/12) and First Information Report (F.I.R. - Ex.-P/13). 2.4 Investigating Officer reached to the village, gave notice (Ex.P/3) to the Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by a team of two Doctors, including Dr. (Smt.) Lalita Rao (PW-16). She noticed following injuries on the dead body:- (i) Two semi-circular abrasions of 3 x 2 cm on both the cheeks. (ii) Five abrasions of 1 x 0.5 cm on the right portion of neck. (iii) Abrasion of 1 cm on the back portion of neck below the ear. (iv) Abrasion of 3 x 0.5 cm over the right thyroid cartilage. (v) Two abrasions of 1 cm each on the forehead. (vi) Three linear abrasions of 1.5 cm, 2.5 cm & 2 cm on the right portion of face. (vii) Two linear abrasions of 1.5 cm just below the left eye-ball. (viii) Five linear abrasions of l cm on the waist region. Frock of the deceased was stained with blood like substance. Some discharge was present near the nostrils. The tongue was pressed between the teeth. Faecal matter has come out. Blood was present on vulva. There was swelling and abrasion on labia minora. They were at the position of 5 to 7 and 7 to 8 O'Clock having reddish colour. Blood was present over them. Margins of the hymen were congested. It was torn by 1 x 0.5 cm at the position of 6 O'Clock. Vagina was also torn having injury of 1.4 x 0.5 cm. Trachea was congested. Lungs were also congested. There was swelling of 2 x 1.5 cm over the uterus. All the injuries were ante-mortem. Injuries described at no. (i) Were caused by teeth bite. Other injuries could have been caused by nails. The injuries over private part were suggestive of forcible intercourse. She opined that the cause of death was asphyxia due to throttling and the death was homicidal in nature. The postmortem report is Ex.-P/18. All the injuries were ante-mortem. Injuries described at no. (i) Were caused by teeth bite. Other injuries could have been caused by nails. The injuries over private part were suggestive of forcible intercourse. She opined that the cause of death was asphyxia due to throttling and the death was homicidal in nature. The postmortem report is Ex.-P/18. Two slides from the vaginal swab were prepared and handed over to the police officer. 2.5 In further investigation, the accused w~ taken into custody and his memorandum statement (Ex.-P/8) U/s 27 of the Evidence Act was recorded and underwear of the deceased and a mobile set, allegedly belonging to the• accused, were seized at his instance from urinal-room, situated behind School of village Basnajhar vide seizure memo Ex.-P/9. 2.6 Bicycle and chhappel belonging to the accused were seized from the house of Shaukilal (PW-14) vide seizure memo Ex.-P/10. 2.7 The prosecution came with the case that the accused, after sending back Ku. Jyoti (PW-17), took the deceased to the urinal-room, committed forcible sexual intercourse, then murdered her and thereafter threw her dead body in the village pond. 2.8 Admittedly there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge has relied and convicted & sentenced the accused:- (i) The accused had taken the two sisters on the pretext of purchasing biscuits for them. (ii) Thereafter one of the sisters, Ku. Jyoti (PW -17), was sent back and the deceased was taken by the accused, thus, the deceased was last seen alive with the accused by Ku. Jyoti (PW-17). (iii) The accused did not explain to the father of the deceased as to where the deceased was. (iv) The deceased had died homicidal death having sustained above injuries. (v) Underwear belonging to the deceased and mobile-set belonging to the accused were seized from the urinal-room on the discovery made through the accused. (vi) The accused did not return to the house of Shaukilal (PW-14) for taking his bicycle and chhappel which he had left there. (vii) The conduct of the accused that he immediately absconded after the incident. 3. Mr. S.S. Rajput, learned counsel appearing on behalf of the accused/appellant, has argued that the circumstances against the accused were not incriminating. (vi) The accused did not return to the house of Shaukilal (PW-14) for taking his bicycle and chhappel which he had left there. (vii) The conduct of the accused that he immediately absconded after the incident. 3. Mr. S.S. Rajput, learned counsel appearing on behalf of the accused/appellant, has argued that the circumstances against the accused were not incriminating. They were not of conclusive nature and tendency and the conviction based on these circumstances cannot be sustained. On the question of death sentence, he argued that it was not a rarest of fare case, therefore, even if it is held that the accused/appellant was guilty, the punishment based on above circumstances appears to be harsh and disproportionate. He cited many decisions which we shall discuss later on. 4. On the other hand, Mr. Arun Sao, learned Dy. Advocate General .J appear on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. He has argued that the matter was fully proved against the appellant and the death sentence imposed against the appellant, in the above facts and circumstances, may be confirmed. 5. We have heard course for the parties. 6. The main circumstance is of last seen together. 7. Ku. Jyoti (PW-17) is the main witness of last seen. She was aged about 7 years. According to her, the accused had taken both the sisters (Ku. Jyoti and deceased Lata) to the market on the pretext of purchasing biscuits. She was sent back by the accused and the deceased was taken by him. The fact that the deceased was taken by the accused is also proved by the evidence of her mother, Meena Bai (PW-1). She has corroborated the version of Ku. Jyoti (PW-17) that her two daughters were taken by the accused on the pretext that he would buy something for their eating and after sometime Ku. Jyoti (PW-17) alone came back and told that Lata (deceased) was taken by the accused towards the pond. Meena Bai (PW-1), predicting some wrong, started searching the deceased. When the deceased could not be traced, Meena Bai (PW-1) went to the temple where her husband (Shaukilal PW-14) had gone and narrated the incident to him. All made search of missing girl, but she could not be traced. Meena Bai (PW-1), predicting some wrong, started searching the deceased. When the deceased could not be traced, Meena Bai (PW-1) went to the temple where her husband (Shaukilal PW-14) had gone and narrated the incident to him. All made search of missing girl, but she could not be traced. Shaukilal (PW-14) has supported the version of his wife (PW-1) that she had narrated the incident in the above manner and then all had made search of the deceased. 8. Digamber Rathia (PW-4) is an another witness who had seen the deceased with the accused in the night. He incidentally met the parents of the deceased when they were making search. He had told the parents that their both the daughters were taken by the accused. The evidence of Digamber Rathia (PW-4) may not assume importance, because, he perhaps had seen the 'accused while the accused and the two sisters were going to the market. Therefore the fact remains that the accused was lastly seen with the deceased by Ku. Jyoti (PW-17). Thus the evidence of Ku. Jyoti (PW-17) was more relevant. A suggestion vide Para-3 in the cross-examination was given to Ku. Jyoti (PW-17) that after sometime, the accused had left the two sisters in their house. This was denied by her. She clearly denied the suggestion that the accused had left them in their house in the night. She added in reply to this suggestion that the accused had taken her sister. It was argued that Ku. Jyoti (PW-17) was a child witness, therefore, a chance of tutoring was there. We do not deny such a possibility, but after going through the entire evidence of this witness, it does not appear that she was tutored. She appears to be a natural witness. 9. Mr. Rajput has also argued that the name of the this witness (PW-17) has been written as Ku. Jyoti in the deposition-sheet, but, she has signed as Ku. Dipika therein, therefore, her, identity appears to be suspicious. The contention cannot be accepted. In the examination by the Court, she has clearly stead that her name was Ku. Jyoti also. She was called Dipika in the School and Jyoti in the house. Inabundant caution, the Court has verified her identity by the photograph pasted over her diary statement and found it to be that of Ku. Jyoti who was deposing before the Court. In the examination by the Court, she has clearly stead that her name was Ku. Jyoti also. She was called Dipika in the School and Jyoti in the house. Inabundant caution, the Court has verified her identity by the photograph pasted over her diary statement and found it to be that of Ku. Jyoti who was deposing before the Court. Therefore, in the light of the evidence of Ku. Jyoti (PW-17) as also the evidence of parents and Digamber Rathia (PW-4), it was prove that the two sisters were taken by the accused and one (PW-17) was sent back and the other (deceased) was taken by him. Thus, the circumstance was of last seen was proved. 10. Shaukilal (PW-14) while making the search had gone to the house of the accused in village Karpipali. There the accused not found. However, when he was returning to village Basnajhar, the accused met him on the way, but he did not tell about the deceased. If the deceased was left by the accused in her house, which plea appears to be taken by him, he would have told Shaukilal (PW-14) that her daughter was left in the house by him. Non-disclosure about whereabouts of the deceased to the father of the deceased, therefore, was also an incriminating circumstance which was established by the prosecution. 11. The other circumstance held to be proved is discovery and seizure of underwear of the deceased and mobile-set belonging to the accused. After the dead body was found, the accused was taken into custody and his discovery statement (Ex.-P/8) was recorded and then the underwear belonging to the deceased and the mobile-set allegedly belonging to the accused were seized vide seizure memo Ex.P/9 from the urinal-room behind the village School. These articles were not put for identification. There is no evidence to show that the• said mobile-set was belonging to the accused. Both the articles were found in a place which was accessible to all. Thus in absence of identification of those articles belonging to the accused and the deceased the above circumstance will not be incriminating. 12. Shaukilal (PW-14), father of the deceased, has deposed that when he met the accused, he saw blood like stains on the underwear of the accused. On this evidence, the said underwear was seized vide seizure memo Ex.-P/11. Blood stains were found on the underwear seized from the accused. 12. Shaukilal (PW-14), father of the deceased, has deposed that when he met the accused, he saw blood like stains on the underwear of the accused. On this evidence, the said underwear was seized vide seizure memo Ex.-P/11. Blood stains were found on the underwear seized from the accused. Human spermatozoa were not found in the slides or the cloths belonging to accused or the frock of the deceased. The underwear of the deceased was not sent for examination. (The FSL report is kept in unproved documents Part-B). Therefore, neither the seizure of underwear of the deceased nor that of mobile set were incriminating against the accused. 13. Bicycle of the accused was seized from the house of Shaukilal (PW-14) vide seizure memo Ex.-P/10. The seizure has been proved on record. However, the accused has denied that the bicycle was belonging to him. He very specifically pleaded in his 313 Cr. P.C. statement that mobile, bicycle and chhappel were not belonging to him. There is no evidence to prove the above articles were belonging to the accused. Thus seizure of bicycle and chhappel would also .not be incriminating. 14. The conduct of the accused, however, was relevant. Even if he had left the girls in their house in the night as he claimed, when the father was searching the girl and he had asked the accused when he met him on the way to the village in the night, the accused simply said that he has not seen the girl (deceased). The accused was regularly visiting the house of the deceased. The mother of the deceased was treating him as her brother and the deceased and her sister used to call him as Mamaji. The accused had taken the deceased with him in the night. Therefore, he should have shown some interest in searching the deceased in the night. Doing nothing of that kind and simply saying that he does not know about the deceased appears to be an unnatural conduct. In fact, the accused had absconded from the village at about 7.30 p.m. and he was found in late night by the father of the deceased. Thus he was absconding just after the incident. 15. On appreciation of entire evidence on record, we find that evidence of Ku. Jyoti (PW-17) was natural. In fact, the accused had absconded from the village at about 7.30 p.m. and he was found in late night by the father of the deceased. Thus he was absconding just after the incident. 15. On appreciation of entire evidence on record, we find that evidence of Ku. Jyoti (PW-17) was natural. She clearly deposed that the accused had taken them (deceased and she, herself) to the market, from where, she was sent back and the deceased alone remained in the company of the accused. Her evidence is supported by the evidence of her parents as also by the evidence of Digamber Rathia (PW-4) to some extent. We are of the view that it was established by the prosecution that the deceased was lastly seen in the company of the accused at about 7.30-8.00 p.m. and thereafter her dead body was found in the pond at about 12 in the mid night. 16. In Arabindra Mukherjee vs. State of West Bengal, 2012 AIR SCW 1032, the deceased was divorced wife of the appellant. She was residing separately from the appellant. The appellant was frequently visiting to her house. The deceased was taken by the appellant for watching movie in the cinema hall. She went with him and later on her dead body was found on railway track. The appellant was also absconding. It was held that once the appellant was last seen with the deceased, the onus was upon the appellant to show that either he was not involved in the occurrence at all or that he had left the deceased at her home or at any other reasonable place. 17. In the instant case, the deceased was taken by the accused and later on her dead body was found in the pond. The accused was absconding. Once the accused was last seen with the deceased, the onus was upon the accused to show that either he was not involved in the occurrence or he had left the deceased at her house as has been claimed by him. The accused could not correctly explain all this. He could not explain as to how the deceased sustained severe injuries and how she died. All these facts were in personal knowledge of the accused alone. The explanation, that he had left the deceased and her sister in their house was incorrect. 18. The accused could not correctly explain all this. He could not explain as to how the deceased sustained severe injuries and how she died. All these facts were in personal knowledge of the accused alone. The explanation, that he had left the deceased and her sister in their house was incorrect. 18. We are of the view that in the facts and circumstances of the case, the accused/appellant was rightly held liable for the offences U/Ss 302, 376(2) (f) and 201 IPC which were proved against him. 19. Now question arises as to sentence to which the accused/appellant would be liable. 20. Mr. Rajput has argued that it was not a rarest of rare case. He took us to the reasons assigned by the Sessions Court for awarding death punishment. 21. Section 354(3) Cr. P.C. provides that when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the-sentence awarded and the case of sentence of death, the special reasons for such sentence. The Supreme Court has also observed in many cases that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime for the reason that life imprisonment is the rule and the death sentence is an exception. The penalty of death sentence may be warranted only in a case where the court comes to the conclusion that imposition of life imprisonment is totally inadequate having record to the relevant circumstances of the crime. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck down between the aggravating and mitigating circumstances before the option is exercised (Vide – Neel Kumar Alias Anil Kumar vs. State of Haryana (2012) 5 SCC 766 . 22. Mr. Rajput, citing decision of Ram Deo Prasad vs. State of Bihar, 2013 AIR SCW 2463, has vehemently argued about the quality of evidence coming in the case. 22. Mr. Rajput, citing decision of Ram Deo Prasad vs. State of Bihar, 2013 AIR SCW 2463, has vehemently argued about the quality of evidence coming in the case. He submitted that the guilt has been mainly held to be proved on the theory of last seen which was based on evidence of Ku. Jyoti (PW-17). At some places her evidence was not of such perfection which indeed is required. Thus the quality of evidence as also that she was a child witness both would play important role in the sentencing analysis. He took us to Para-44 to Para 46 of Ram Deo (supra), which we quote:- "44. Mr. Patwalia, senior counsel, invited our attention to the decision of this Court in Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra, (2009)6 SCC 498 . In Santosh Kumar, after surveying a large number of decisions on death penalty, this Court in Paragraph 56 (of SCC) (Para 58 of AIR, AIR SCW) of this judgment observed as under:- "56. At this stage, Bachan Singh ( AIR 1980 SC 898 ) informs the content of the sentencing hearing. The court must playa proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also - raised in the 48th Report of the Law Commission." (Emphasis added) 45. Mr. Patwalia submitted that the above passage from the decision in Santosh Kumar was cited and followed by the Court in Ramesh vs. State of Rajasthan, (2011)3 SCC 685 . In Paragraph 68 of the judgment in Ramesh this Court observed as under:- "68. Practically, the whole law on death sentence was referred to in Santosh Kumar case (AIR 2010 SC (Supp) 612: 2010 AIR SCW 1130). In SCC para 56: (Paras 58 and 59 of AIR, AIR SCW), the Court observed: (SCC p. 527)." "56. In Paragraph 68 of the judgment in Ramesh this Court observed as under:- "68. Practically, the whole law on death sentence was referred to in Santosh Kumar case (AIR 2010 SC (Supp) 612: 2010 AIR SCW 1130). In SCC para 56: (Paras 58 and 59 of AIR, AIR SCW), the Court observed: (SCC p. 527)." "56. The court must playa proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Qualility of evidence is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th Report of the Law Commission." (Emphasis supplied) The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a note of caution that in a case where the reliance is on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. This is also a case purely on the circumstantial evidence. We should not be understood to say that in all cases of circumstantial evidence, the death sentence cannot be given. 46. Mr. Patwalia also cited before us the decision of this Court in Amit vs. State of Uttar Pradesh, (2012)4 SCC 107 . In the case of Amit, though this Court upheld his conviction under sections 376 and 302 of the Penal Code finding him guilty of raping and killing a three year old girl, commuted the death penalty awarded to him by the courts below." 23. Now we shall examine the case in hand in light of the above principles. 24. The aggravating circumstances held by the Sessions Court were:- (i) The offence committed was of serious and hateful nature. (ii) It was committed in cruel manner. (iii) It was not committed in a situation suddenly faced by the accused who was an young man and could not control his sexual desire. (iv) On the contrary, it was committed by plan. The aggravating circumstances held by the Sessions Court were:- (i) The offence committed was of serious and hateful nature. (ii) It was committed in cruel manner. (iii) It was not committed in a situation suddenly faced by the accused who was an young man and could not control his sexual desire. (iv) On the contrary, it was committed by plan. (v) The accused selected a girl of tender age, who was helpless, for commission of such a heinous crime. (vi) It was committed to satisfy his sexual desire with a girl of tender age. 25. The only mitigating circumstance taken by the Sessions Court was the age of the accused, which was about 23 years. 26. We have discussed the evidence in detail in the first part of the judgment. We note that the Sessions Court has not recorded all relevant information before awarding capital punishment like aspects relating to nature, motive and impact of crime and culpability of convict. The quality of evidence and the circumstantial evidence held to be proved and the fact that the main circumstance was proved by a child witness was significant while sentencing analysis. There is no information relating to characteristics and socio-economic background of the accused. 27. In a case where such heinous allegations were made against the accused, no expert evidence (other than the Lady Doctor) was brought on record. The FSL report remained unproved and was not exhibited by the prosecution. The circumstance of last seen was based on solitary evidence of a child witness aged about 7 years. She is none else than the sister of the deceased. The Supreme Court has referred to the quality of evidence and has sounded a note of caution that when a case is based on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. Ours is also a case based on circumstantial evidence, therefore, the above factors would assume importance. 28. The Supreme Court has referred to the quality of evidence and has sounded a note of caution that when a case is based on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. Ours is also a case based on circumstantial evidence, therefore, the above factors would assume importance. 28. Considering all above facts and circumstances of the case and particularly considering the mitigating factors and the quality of evidence adduced and that the conviction was mainly based on the last seen theory which was held proved on the evidence of a child witness who was sister of the deceased and that the matter was lacking in information relating to characteristics and socio-economic background of the accused as also there was no expert report and FSL report remained un-exhibited, we are of the view that it is quite unsafe to confirm the death sentence awarded to the accused. 29. Conclusions The conviction awarded to the accused U/Ss 302, 376(2) (f) and 201 IPC are confirmed. However, we do not confirm the death sentence awarded to the accused U/s 302 IPC. Instead thereof, we sentence him to undergo life imprisonment. The sentences awarded under other Sections are maintained. We direct, that all the sentences awarded to him shall run concurrently. Appeal Partly Allowed.