JUDGMENT P. V. HARDAS, J.: 1. On 21/6/2010, the victim, daughter of PW 10 Hanmant, left her home at about 10 a.m. in order to attend her school. She was wearing the school uniform and was carrying her school bag, which contained a memento as well as a box of sweet, commonly known as Pedhas, for distribution to her friends. Before going to school, she was playing with PW 4 Akash and other children near the Marguaai Temple. The prosecution has alleged that the accused suddenly came there and took the victim along with him towards a stream. The prosecution further alleged that on the next day the dead body of the victim was found at the behest of the accused. The medical evidence indicated that the victim had died because of drowning and before her death she had been subjected to forcible sexual intercourse as well as unnatural intercourse. The Additional Sessions Judge, Sangli, by judgment dated 6/11/2012 in Sessions Case No. 193 of 2010 held the accused guilty for offences punishable under Sections 302, 376(2)(f) of the Indian Penal Code and Section 201 of the Indian Penal Code and sentenced the accused to death, to be hanged by the neck till he is dead and to pay fine of Rs.500/-, in default to undergo RI for three months, imprisonment for life and to pay fine of Rs.2000/-, default to undergo RI for six months and RI for seven years and to pay fine of Rs.500/- in default to undergo further RI for three months. In accordance with the provisions of Section 366 of the Code of Criminal Procedure, the trial Judge has made a reference to this court for confirmation of the death sentence awarded to the accused. The accused has also preferred Criminal Appeal No. 102 of 2013, which is also decided along with this Confirmation Case. 2. Facts, in brief, as are necessary for the decision of the Confirmation Case and the Criminal Appeal may briefly be stated thus:- PW 10 Hanmant Shirsat, father of the victim, had lodged a missing report on 21/6/2010 at the Miraj Rural Police Station about missing of his daughter, the victim. The said missing report was registered as 20 of 2010 and was handed over to one Head Constable Dudhal for inquiry. The said missing report is at Exh.32. The said missing report was registered as 20 of 2010 and was handed over to one Head Constable Dudhal for inquiry. The said missing report is at Exh.32. Along with the missing report, PW 10 Hanmant had also produced a photograph of his daughter at Exh.54. Since the missing report was in respect of the missing of a young girl, PW 16 PI Kisan Gavali, who was attached to the Miraj Rulral Police Station, along with the other police staff, went towards village Bedag. On reaching village Bedag, PW 16 PI Gavali noticed that crowd was gathered near the Marguaai Temple, which was situated on the old Arag Road. He enquired from the people and learnt that they had gathered an information from one boy, namely, Akash, who had seen a person, wearing black clothes, taking the daughter of PW 10 Hanmant along with him towards a small stream. PW 16 PI Gavali also learnt that PW 13 Sidram Khade and one Dnyaneshwar Vanjari had also seen a person wearing black clothes and who was working in the poultry. PW 16 PI Gavali, therefore, took PW 13 Sidram Khade and Dnyaneshwar Vanjari along with him to the poultry, a hatchery. On reaching the gate of the poultry farm, he asked the watchman Dinanath Patil whethter any person wearing black clothes is working in the poultry. Thereafter, the watchman went to the place where the other labours were residing and brought a person who was seen wearing black clothes. PW 16 PI Gavali, therefore, asked that person his name and the person disclosed his name as Raju Paswan. The said person i.e. Raju Paswan is the accused, who stands convicted. PW 16 PI Gavali then enquired from him in Hindi about the missing girl. Initially, the accused declined, but when persistently questioned, he disclosed in Hindi that he had committed rape on the girl in the sugarcane field and thereafter had thrown her in the well. PW 16 PI Gavali then questioned him about school bag which was carried by the victim girl. The accused had replied in Hindi that the school bag may be lying at the place where he had committed rape. The accused was then taken into custody and taking into consideration the security of the person of the accused, he was sent in a police jeep. The accused had replied in Hindi that the school bag may be lying at the place where he had committed rape. The accused was then taken into custody and taking into consideration the security of the person of the accused, he was sent in a police jeep. Before he was sent, PW 16 PI Gavali had questioned him as to where he had committed rape and the accused had disclosed that he had committed the rape near a well which was near the stream. The accused was, therefore, sent to the police station and PW 16 PI Gavali along with people, who had gathered there, went in search of the girl. On taking search in the sugarcane field, where the sugarcane crop was standing, they noticed the school bag. After the school bag was noticed, PW 16 PI Gavali deputed the Police Constable More to guard that place, including the school bag. The police then went near the well and after making arrangement for illumination, started searching in the well for the trace of the victim. They made attempts at locating the dead body by inserting thorns in the well but were not successful in finding the dead body. PW 16 learnt that PW 5 Balu Mahadeo Patil was an expert diver and, therefore, PW 5 Balu was summoned. After PW 5 Balu arrived at the scene of the incident, he dived in the well and with the aid of a hook, found the dead body of the victim. The dead body was taken out from the well and was identified by PW 10- Hanmant as the dead body of his daughter. On seeing the dead body of his daughter, PW 10 Hanmant was distraught and returned home. The Police Patil then gave information to the police station, on the basis of which A.D. No. 73 of 2010 was registered and the inquiry of the accidental death was entrusted to API Patil. Accordingly, API Patil drew the inquest panchanama of the dead body in the presence of panchas at Exh.7. Photographs of the dead body were taken, which are at Exhs. 34 to 37. The dead body of the victim was thereafter referred for post-mortem examination under requisition at Exh.55. After the post-mortem was performed, clothes of the victim were seized under seizure panchanama at Exh.27. Photographs of the dead body were taken, which are at Exhs. 34 to 37. The dead body of the victim was thereafter referred for post-mortem examination under requisition at Exh.55. After the post-mortem was performed, clothes of the victim were seized under seizure panchanama at Exh.27. PW 10 Hanmant thereafter went to the police station and lodged his report at Exh.33. On the basis of the said report, at Exh.33, an offence vide Crime No. 63 of 2010 was registered and PW 16 PI Gavali took over the investigation of that offence at about 10 a.m. on 22/6/2010. On taking over the investigation, PW 16 PI Gavali drew the scene of the incident panchanama at Exh.9. He also seized the school bag and the chappal from the scene of the incident and recorded the statements of three witnesses, including the statement of PW 4 Akash and PW 5 Balu. The appellant was thereafter formally arrested under arrest panchanama at Exh. 40. The clothes on the person of the accused were seized in the presence of panchas at Exh.29. The clothes, which were seized, were black trouser and black full shirt. The accused was thereafter referred for medical examination under requisition. On the next day i.e. on 23/6/2010, statements of four witnesses were recorded. It appears that during custodial interrogation, the accused was questioned and the accused pointed the place of the offence and accordingly a panchanama in the presence of panchas was drawn at Exh. 17. Photographs were taken, which are at Exhs.18 to 25. From 25th to 28th June, 2010, PW 16 PI Gavali recorded the statements of some witnesses. The attendance register of the hatchery was seized from one Dinanath. On the same day, PW 16 PI Gavali issued a letter to the school, where the victim was studying, for providing a copy of the attendance register. On 29/6/2010 and 30/6/2010, statements of additional witnesses were recorded. On 4/7/2010, the appellant, during custodial interrogation, had expressed his willingness to give his statement and, therefore, a photographer was called and the video recording of the statement of the accused was done. Thereafter a compact disk of the recording was prepared. The said CD was seized in the presence of panchas under the panchanama at Exh. 42. The photographer, one Mr.Joshi, had executed receipts at Exhs. 47 and 48 towards the payment received by him. Thereafter a compact disk of the recording was prepared. The said CD was seized in the presence of panchas under the panchanama at Exh. 42. The photographer, one Mr.Joshi, had executed receipts at Exhs. 47 and 48 towards the payment received by him. A copy of the attendance register was received from the school on 7/7/2010. Investigation was entrusted to PSI Patil from 8/7/2010 till 30/8/2010. Thereafter, the investigation was entrusted to PW 16 PI Gavali. The seized property was thereafter referred to the Chemical Analyzer under requisition at Exh.51. On 23/8/2010 a sealed packet in respect of the test identification was received as well as the statement under Section 164 of Cr.P.C. Further to the completion of investigation, a charge-sheet against the accused was submitted. Post mortem on the dead body of the victim was performed by PW 3 Dr. Sunil Patil and PW 9 Dr. Juber Momin. PW 3 Dr. Sunil Patil had noticed cutes anserina on both palms and sole of the foot because the body was immersed in water. Froth was noticed from the mouth and there was nasal bleeding. Mucosa of vagina was congested. Redness was present over mucosa of anus with congestion with passage of stool. There was a recent complete rupture of hymen. No fresh external injury was seen on the body. On internal examination of thorax showed both lungs voluminous, oedematous, air bubbles with water inside. The viscera was preserved which contained of blood, nails, vaginal swab and perennial swab for Chemical Analyzer. The Medical Officers, therefore, opined that taking into consideration the facts, the probable cause of death was signs of recent sexual intercourse with death due to drowning. All the injuries were antemortem. The post mortem report which is signed by PW 3 - Dr. Sunil Patil and PW 9 Dr. Juber Momin is at Exh. 11. The Medical Officers further opined that the froth oozing from the mouth was the result of pulmonary oedema and the nasal bleeding might be due to injury inside the nose. The Medical Officers further opined that if the moth and nose of a small girl is pressed with force, then such injuries were possible. The Medical Officers further opined that the report from the Government Medical College, Miraj, in respect of vaginal and pereanal swab showed that pereanal swab positive for spermatozoa, while vaginal swab was negative for spermatozoa. The Medical Officers further opined that if the moth and nose of a small girl is pressed with force, then such injuries were possible. The Medical Officers further opined that the report from the Government Medical College, Miraj, in respect of vaginal and pereanal swab showed that pereanal swab positive for spermatozoa, while vaginal swab was negative for spermatozoa. The Medical Officers, therefore, opined that there was an anal intercourse. On committal of the case to Court of Sessions, trial court vide Exh.2 framed charge against the accused for offence punishable under Sections 376(f), 302 and 201 of the Indian Penal Code. The accused abjured his guilt and claimed to be tried. Prosecution, in support of its case, examined 16 witnesses. The defence of the accused is of total denial. The trial court, upon appreciation of the evidence of the prosecution, convicted and sentenced the accused as afore-stated. The reference has been sent by the trial court for confirmation of the death sentence, while the accused has preferred appeal questioning his conviction. The Confirmation Case as well as the Appeal filed by the accused are decided by this common judgment. 3. Before we advert to the submissions advanced before us by Mr. Niteen Pradhan, learned counsel appointed for the accused and the Public Prosecutor, Mrs. Revati Mohite-Dere, we must place on record our appreciation for the efforts of the learned counsels and the succinct arguments advanced before us, which have enabled us to complete the hearing of the Confirmation Case as well as the appeal filed by the accused. 4. However, in order to effectively deal with the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 5. Prosecution has examined PW 10 Hanmant, father of the unfortunate victim. PW 10 Hanmant states that he was residing in Balkrishna Breeding Farm, Bedag, Miraj. He was residing along with his wife Sindhu, son Akash and his daughter, the victim. The victim was then aged about 9 years. The Breeding Farm (Hatchery) where PW 10 Hanmant was residing was on old Arag road, which is towards the Eastern side of village Bedag. Hanmant states that he had been working on the said farm since 1997. The victim was studying in 4th standard in the Samarth Ashram Shala, Bedag. The victim was then aged about 9 years. The Breeding Farm (Hatchery) where PW 10 Hanmant was residing was on old Arag road, which is towards the Eastern side of village Bedag. Hanmant states that he had been working on the said farm since 1997. The victim was studying in 4th standard in the Samarth Ashram Shala, Bedag. On 21/6/2010 the victim, as usual, went to her school at about 10.00 a.m. Hanmant states that he had gone to her school in between 5.00 to 5.15 p.m. for bringing the victim home. The students in the school informed PW 10 Hanmant that the victim had not come to the school. Hanmant, therefore, contacted the school teacher, who had also informed Hanmant that the victim had not come to the school. The school teacher had also shown the attendance register to PW 10 Hanmant. Hanmant, therefore, returned home under the impression that the victim would return home after some time. In the meantime, Hanmant also contacted the friends of the victim and searched for her, but in vain. As there was no trace of the victim till about 7.00 p.m., Hanmant went, along with Police Patil, to the Miraj Rural Police Station and lodged a missing report. Hanmant had taken a photograph of the victim along with him. He has identified his signature on the missing report, which is at Exh.32. He has also identified the photograph, which was shown to him. Hanmant further states that the police returned along with him and also started searching for the victim. In the meantime, the colleagues, relatives, friends and other people from the school were also making search for the victim. Hanmant states that when he had enquired near the Marguaai temple, PW 4 Akash had informed him that he had seen the victim being taken away by one person who was wearing black pant and black shirt. The said person had taken the victim towards a small stream, which is towards the Eastern side of village Bedag. Thereafter, Hanmant states that the search party and the police went towards the Lakade Mala. In the agricultural field, the sugarcane crop was standing and he noticed the school bag of the victim in the sugarcane crop, but could not find the victim. Thereafter, Hanmant states that the search party and the police went towards the Lakade Mala. In the agricultural field, the sugarcane crop was standing and he noticed the school bag of the victim in the sugarcane crop, but could not find the victim. Thereafter, PW 13 Sidram Khade and one Dnyaneshwar Vanjari informed Hanmant that they had seen a person wearing black pant and black shirt and, therefore, all of them went towards poultry farm and enquired from the watchman. They found a person wearing black pant and black shirt inside the factory. The police had enquired from that person in the presence of Hanmant and others and the said person had informed the police that when the victim was going to her school, he had dragged her by pressing her mouth towards the stream and then had taken her to the sugarcane crop, where she was raped. The said person had also disclosed that he had pressed the mouth of the victim so that she should not raise any cries and had, thereafter, thrown her in a nearby well, so as to ensure that the victim did not narrate about the rape. PW 10 Hanmant states that this was disclosed by the accused, who was present in the court. Hanmant states that thereafter they had all gone towards the well and tried to search for the dead body of the victim. Despite diligent search, the dead body was not found. The police had brought a person, who had then searched for the dead body of the victim in the well and after the dead body was brought out, Hanmant had identified the dead body to be that of his daughter, the victim. Hanmant states that he had then lodged the report with the police at Exh. 33. He has identified the school bag as the one belonging to the victim and has also identified the clothes as the clothes which were worn by his daughter, the victim. He has also identified the photographs, which were shown to him. 6. In cross-examination, Hanmant has admitted that he was living in village Bedag for the last 15 years and was working as Supervisor. He has admitted that there were about 50 workers working in the farm. He has also admitted as correct that about 50% of those workers were workers who had come from Bihar. 6. In cross-examination, Hanmant has admitted that he was living in village Bedag for the last 15 years and was working as Supervisor. He has admitted that there were about 50 workers working in the farm. He has also admitted as correct that about 50% of those workers were workers who had come from Bihar. He has denied the suggestion that the members of the Maharashtra Nav Nirman Sena used to frequently come to the factory and were insisting for the removal of the workers from other States. He has admitted as correct that a strike was called by the political party with such an intention. He has admitted that his duty hours were from 8 a.m. to 4 p.m. He has denied the suggestion that due to change of his duty hours, it was not possible form him to go to the school for bringing his daughter home. He was then asked the question, whether the work of the construction of Marguaai temple was in progress and he had replied that the construction work was stopped. He has denied the suggestion that PW 4 Akash had not disclosed to him that Akash had seen a person, wearing black pant and black shirt, dragging the victim towards Lakade Mala. He has also denied the suggestion as not true that since the accused was from Bihar and in order to help some political party, he was deposing falsely. 7. Prosecution has examined PW 4 Akash, a child witness. After preliminary questions, the trial court has recorded a finding that since the child witness did not understand the sanctity of oath, the oath was not administered. PW 4 Akash states that he was knowing the victim, who was daughter of PW 10 Hanmant. Akash states that the victim was studying in his school and on the day of the incident, he was playing with the victim near the Marguaai temple. Akash further states that he had seen a person wearing black pant and black shirt, dragging the victim towards the stream. He has identified the accused as the said person who had dragged the victim towards the stream. In cross-examination, he has admitted that his house is facing towards South and there is a tar road in front of his house. He has also admitted as correct that in between his house and Marguaai temple, the shop of his father is located. In cross-examination, he has admitted that his house is facing towards South and there is a tar road in front of his house. He has also admitted as correct that in between his house and Marguaai temple, the shop of his father is located. He has admitted as correct that the construction work of the temple was going on, but then corrected himself to say that the construction was recently completed and at the time of the incident it was not started. He states that at the time of the incident the structure of the temple was an old structure. He states that he was playing a game of hide and seek along with his sister Pooja and the other children. He was asked the question as to whether the other children were involved in the game when PW 4 Akash was giving the den. Akash answered that those children had gone far away and I had a look at that time. He has denied the suggestion that he was involved in the game and thus was not paying attention as to who was passing by the temple. He has admitted that many persons in the village wear black shirt. He has denied the suggestion that he had not seen the accused on the earlier occasion. He has admitted that his school timings are from 11 - 11.30 a.m. till evening. He has admitted that on that day the other children had not gone to school. Akash volunteered that he subsequently went to the school. He has denied the suggestion that he had not seen any person wearing black pant and black shirt dragging the victim towards the stream. 8. Prosecution has examined PW 5 Balu Mahadeo Patil, who states that he had assisted the police many times in searching for the dead bodies in water as he knows swimming. He states that on 22/6/2010 at about 12.30 a.m. while he was sleeping in his house, the police came to his house and woke him up. The police asked him to accompany them to village Bedag in order to search for the dead body of a girl who had been thrown in the well. PW 5 Balu states that he accompanied the police and had taken a towel, iron hook and rope with him. The police asked him to accompany them to village Bedag in order to search for the dead body of a girl who had been thrown in the well. PW 5 Balu states that he accompanied the police and had taken a towel, iron hook and rope with him. The police took Balu near the well and he searched for the dead body in the well. Illumination was provided by the police and despite the search, the dead body could not be located. Balu, therefore, threw the hook in the water and because of the hook the dead body came to the surface of the water and the dead body was then removed from the well. Photographs of the dead body were taken. He was shown the photographs of the dead body of the victim and he has identified that it was the same dead body which he had taken out from the well. 9. In cross-examination, PW 5 Balu admitted that normally he leaves his home at about 7 a.m. and there was no fixed time of his return as it depended upon the work which he gets. He has admitted that he has not visited village Bedag earlier. He could not give the exact time when the police had come to his house, but states that it was during the night and he was sleeping. He could not give the exact time when he reached the scene of incident. He could not state if the persons, who were assembled there, had attempted to search for the dead body. He has admitted that he was searching for the dead body for about half an hour. He has admitted that his statement was recorded and the clothes of the victim were not torn due to the entangling of the hook in the clothes. 10. Prosecution has examined PW 13 Sidram Khade, who states that he owns a grocery shop in Hari Mandir Chowk in village Bedag. On 21/6/2010, he had closed his shop as usual at about 9 p.m. and was returning home. When he came near the Marguaai temple, at that time, he had noticed a crowd there. 10. Prosecution has examined PW 13 Sidram Khade, who states that he owns a grocery shop in Hari Mandir Chowk in village Bedag. On 21/6/2010, he had closed his shop as usual at about 9 p.m. and was returning home. When he came near the Marguaai temple, at that time, he had noticed a crowd there. He enquired as to what had happened and learnt that the daughter of PW 10 Hanmant was missing since 10 a.m. He further states that he had learnt from one Mahadeo Patil (father of PW 4 Akash) that the son of Mahadeo Patil had seen a person wearing black pant and black shirt taking away the victim. When he was informed by Mahadeo, PW 13 Sidram recollected that such a person had come to his shop in the morning wearing black shirt and black pant. The said person was a Bihari person working in the poultry. Sidram states that the person wearing black clothes had come to his shop at about 11 to 11.15 a.m. and had asked for tobacco. Sidram had given him the tobacco. Sidram states that thereafter all of them had gone to the poultry, after Sidram had informed them about the person wearing black clothes coming to his shop around 11 to 11.15 a.m. Sidram saw 4-5 Bihari persons in the poultry and identified one person amongst them who had come to his shop in the morning. Within half an hour, a police vehicle arrived and the police then questioned that person, who was speaking Hindi. Initially, the said person (accused) was not willing to disclose anything, but later on he informed the police that he had taken a girl in the sugarcane field and had committed rape on her and thereafter had thrown her in the well. The mob, which was present there, was infuriated and was annoyed with the accused. The police, however, made an appeal to them to maintain calm and the police then took the accused to the field and the well. Sidram states that he had also accompanied the others near the well. The police made arrangement for illumination and were trying to search for the dead body in the well. Sidram states that he waited there for some time and then returned home. Sidram states that he had also accompanied the others near the well. The police made arrangement for illumination and were trying to search for the dead body in the well. Sidram states that he waited there for some time and then returned home. He has identified the accused as the same person and has also identified the clothes of the accused which are Articles 6 and 7 as the clothes which were worn by the accused on the day of the incident. 11. In cross-examination, PW 13 Sidram has admitted that he opens his shop at about 7 a.m. and he is residing in village Bedag since his birth. He has admitted that he has studied upto 9th standard and possesses a license to run a grocery shop. He has admitted as true that there was a movement by political party that person from Bihar should not work in Maharashtra. He has feigned ignorance as to whether there were riots in the poultry farm on that count. He had denied the suggestion that it was not possible for him to remember as to who had come to his shop, at what time and wearing which clothes. He then admitted as correct, which we reproduce, It is true to say that as the accused is Bihari I remembered him . He has also admitted as correct that after the incident, there was a discussion in the village that the Bihari should be punished. He has admitted that he too felt in the same way. He has admitted as correct that, therefore, he had gone and had informed the people voluntarily that the accused had come to his shop. He has denied the suggestion that the accused had not come to his shop on the date of the incident. 12. Prosecution has examined PW 15 - Santosh Hattigote, who was coordinator at the Balkrishna Hatcheries at Bedag. PW 15 Santosh states that he was working as a coordinator with the Balkrishna Hatchery at Bedag since last about 8 years. Santosh states that he knew PW 10 Hanmant, who was residing with his wife, son and his daughter, the victim. In the year 2010, the victim had taken admission in 4th standard. He has admitted that he had employed 12 persons from Bihar on contract basis. The permanent employees were from village Bedag. Santosh states that he knew PW 10 Hanmant, who was residing with his wife, son and his daughter, the victim. In the year 2010, the victim had taken admission in 4th standard. He has admitted that he had employed 12 persons from Bihar on contract basis. The permanent employees were from village Bedag. He admits that his duty timings were from 8 a.m. to 5 p.m. and the nature of his duty is manage the labour in the morning and thereafter to look after the poultry. He states that he is supposed to supply the labour in the shed where there was less labour working on a particular day. He has admitted that he knew the accused, who was employed at the hatchery since last two years. The accused in the meantime had left the work but had started coming to the hatchery again from 7/6/2010. The accused was given work in Shed No.9 and was residing in a shed near the residence of a contractor. On 21/6/2010, Santosh had attended his duty at about 8.30 a.m. and had checked the muster roll and had found that the accused, who was working in Shed No.9, was absent. Santosh, therefore, asked the contractor - Dharma Choudhari as to where the accused was. Santosh was informed by the contractor that the accused was complaining of pain of his leg and, therefore, had gone to a doctor at village Bedag. Santosh states that he checked the muster roll again at about 1.00 p.m., but noticed that the accused was absent. He questioned the Supervisor of Shed No.9 one Bapusaheb Athale and was informed that the accused had not returned. Santosh states that thereafter in the evening he had discussion with his supervisor in respect of the other work and then left. At about 6.15 p.m. he received a telephone call from one Ramesh Pawar, who was a Clerk at the Hatchery that the daughter of PW 10 Hanmant was missing. The family members and the other persons from the village were searching for her and, therefore, PW 15 went towards the compound gate of the hatchery. He met one Sadashiv Salawe, who was in-charge of the hatchery, who informed him that the victim had left for school, but did not reach the school. Santosh along with Salawe, Ramesh Pawar and Ramesh Khade went to village Bedag and met PW 10 Hanmant. He met one Sadashiv Salawe, who was in-charge of the hatchery, who informed him that the victim had left for school, but did not reach the school. Santosh along with Salawe, Ramesh Pawar and Ramesh Khade went to village Bedag and met PW 10 Hanmant. Hanmant also narrated the same story. Hanmant was, therefore, sent for lodging complaint with the police while others started searching for the victim in nearby area. They could not find any trace of the victim and, therefore, returned to the compound gate of the hatchery at about 9 p.m. At about 10 p.m. A police jeep arrived and a mob of about 100-200 people also came to the gate. Santosh at that time was standing at the gate when the police jeep had arrived. The police asked the supervisor Dinanath Patil as to whether any worker from Bihar was present in the factory and who was wearing black clothes. The supervisor went to the shed where the Bihari workers were residing and brought the accused, who was wearing black clothes. The police then questioned the accused in Hindi as to where he had taken the victim. The accused did not speak initially, but on the police questioning him again, he replied that he had committed rape on the victim in the agricultural field where there was sugarcane crop and thereafter had thrown the victim in a well. The police then questioned him in Hindi as to where he had kept the school bag of the victim and the accused also replied in Hindi that the school bag might be at the place where he had committed rape on the victim. He had informed the police that the school bag might be somewhere near the well. The mob, which was present there, was infuriated and annoyed and was insisting that the accused be arrested. The police took the accused in his jeep and went towards the police station. The police officers, who remained behind, appealed to the mob for maintaining calm. The police and the mob went towards the well and were searching for the dead body. Santosh states that he along with Salawe had also gone towards the well. He then stated that when they were searching there, the school bag was found in the sugarcane field. The photographs of the school bag were taken. The police and the mob went towards the well and were searching for the dead body. Santosh states that he along with Salawe had also gone towards the well. He then stated that when they were searching there, the school bag was found in the sugarcane field. The photographs of the school bag were taken. Then thereafter they went towards the well, but despite searching in the well, the dead body was not found. A person from Sangliwadi was, therefore, called and he found the dead body of the victim, which was taken out of the well. He has stated that the absence of the accused is recorded in the muster. 13. In cross-examination, PW 15 Santosh has admitted that his native place is Aundha, Taluka Khatav, District Satara. He has denied the suggestion that PW 10 Hanmant was residing in Bedag village. He has then admitted that he personally verifies as to which worker is present and which worker is absent. He has also stated that he does not change the duty once duty has assigned in the morning. He has denied the suggestion that roll-call is not taken in the afternoon. He has admitted that taking into consideration the stream and the trees around it, they had decided to search for the victim around the factory. They had checked all the play grounds in the village. 14. The scene of the offence panchanama at Exh.9 records the finding of the school bag, tiffin box, books and a memento. At the scene of the incident, about 8-10 sugarcanes were found broken. At a distance of about 150 ft. from the well, a pair of black coloured chappal were found. The photographs of the scene of the incident are at Exh.18 to 25. After post-mortem examination, the clothes of the victim were seized under panchanama. After the arrest of the accused, the clothes of the accused were also seized. Prosecution has also examined PW 12 - Arun Joshi, who had taken the photographs as well as who had done the video recording of the statement of the accused. 15. (a) Mr. After post-mortem examination, the clothes of the victim were seized under panchanama. After the arrest of the accused, the clothes of the accused were also seized. Prosecution has also examined PW 12 - Arun Joshi, who had taken the photographs as well as who had done the video recording of the statement of the accused. 15. (a) Mr. Niteen Pradhan, learned counsel for the accused, has urged before us that the extra judicial confession of the accused, namely, the statement made by the accused in response to the police questioning, but in the presence of the villagers, would be a weak type of evidence and would not be sufficient for sustaining the conviction of the accused. The learned Public Prosecutor has rightly pointed out to us that the statement made by the accused to the police would be a confession, which would be inadmissible in evidence, but would be admissible to the extent of Section 27 of the Indian Evidence Act. 15(b) Mr. Niteen Pradhan, learned counsel for the accused has urged before us that since the accused was not in custody at the time when he was interrogated by the police, the statement of the accused leading to the discovery of the dead body cannot amount to a disclosure memorandum under Section 27 of the Indian Evidence Act. The learned Public Prosecutor has urged before us that the information given by the accused which led distinctly to the discovery of the dead body and the school bag was an information which distinctly related to the discovery of the dead body and the school bag and, therefore, was admissible under Section 27 of the Indian Evidence Act. The learned Public Prosecutor has further urged before us that for admissibility of the information under Section 27, it is not necessary that the formal accusation should be made against the accused and, therefore, the accused, when he was questioned by the police, can be said to be in the custody of the police. 15(c) Mr. The learned Public Prosecutor has further urged before us that for admissibility of the information under Section 27, it is not necessary that the formal accusation should be made against the accused and, therefore, the accused, when he was questioned by the police, can be said to be in the custody of the police. 15(c) Mr. Niteen Pradhan, learned counsel for the accused has urged before us that no reliance can be placed on the evidence of PW 4 Akash, as PW 4 Akash is, (i) a child witness and (ii) there is no other corroborative evidence which would corroborate the evidence of PW 4 Akash and consequently the testimony of PW 4 Akash would be sufficient for holding the accused guilty of the offence punishable under Sections 302 and 376 of the Indian Penal Code. 15(d) It is further urged before us by Mr. Niteen Pradhan, learned counsel for the accused, that test identification parade had not been held and consequently the identification of the accused by PW 4 Akash as well as the identification by PW 13 Sidram would be of no consequence. 15(e) It is also urged before us by Mr. Niteen Pradhan, learned counsel for the accused that neither PW 4 Akash nor PW 13- Sidram give description of the accused, in the sense that neither of these witnesses give any description of the features or height of the accused, but only a vague description is given that a person who was wearing black clothes had taken the victim. 15(f) Mr. Niteen Pradhan, learned counsel for the accused has also urged before us that the evidence of PW 4 Akash that the accused had dragged the victim is falsified by the medical evidence as no abrasions were found on the feet of the victim, which would indicate that she was dragged. 15(g) It is also urged by Mr. Niteen Pradhan, learned counsel for the accused that the prosecution has failed to produce on record the muster roll of the Balkrishna Hatchery which undisputedly has been seized from PW 15 Santosh and in the absence of the evidence of the muster roll, the oral evidence of PW 15 Santosh was not enough for sustaining a finding that the accused was not present in the Hatchery on the date of the incident. 15(h) Mr. 15(h) Mr. Niteen Pradhan, learned counsel for the accused has also urged that the attendance register from the school, where the victim was studying, was not produced in order to corroborate the evidence of PW 10 Hanmant that his daughter had not attended the school on the day of the incident. 15(i) It is also urged before us by Mr. Niteen Pradhan, learned counsel for the accused, that though the accused was examined by a Medical Officer, the certificate is not placed on record and in the absence of the aforesaid certificate, an adverse inference ought to have been drawn against the prosecution. 15(j) Mr. Niteen Pradhan, learned counsel for the accused has also urged, by referring to Section 233 of the Code of Criminal Procedure, that the trial court had not called upon the accused to enter his defence and consequently failure to observe this mandatory procedure has vitiated the trial. 15(k) Mr. Pradhan, learned counsel for the accused has also urged before us that the trial court was in error in permitting the exhibition of the compact disc of the confession made by the accused to the police. It appears that after the discovery of the dead body, a confession of the accused was recorded, in which the accused had given details of the manner in which he had committed the offence. The accused had taken the police and the panch to the scene of the incident and had pointed out various places. The aforesaid confession was wholly inadmissible in evidence and the trial court ought not to have played the CD in the court and ought not to have viewed the CD as it was wholly inadmissible piece of evidence. However, having done so, according to us, it cannot be urged that the trial court was prejudiced on account of having viewed the confession of the accused. In the present proceedings we have re-appreciated the evidence and we do not find that the trial court was prejudiced against the accused in any manner. 16. In the presence of the residents of village Bedag, the police had questioned the accused and the accused had confessed to have committed the crime. Since it is a confession made by an accused to the police officers, it would be inadmissible in evidence, except to the limited extent of Section 27 of the Indian Evidence Act. 16. In the presence of the residents of village Bedag, the police had questioned the accused and the accused had confessed to have committed the crime. Since it is a confession made by an accused to the police officers, it would be inadmissible in evidence, except to the limited extent of Section 27 of the Indian Evidence Act. The aforesaid statement of the accused, though was made in the presence of the villagers, would not be an extra judicial confession, but would be a confession made to the police officers and, therefore, inadmissible in evidence. The statement made by the accused ultimately led to the discovery of the school bag of deceased and the finding of the dead body in the well. The confession to that extent would be admissible in evidence. The submission of the learned counsel, therefore, that it would be an extra judicial confession which the court may not accept without corroboration, is a submission which is misconceived. 17. Mr. Niteen Pradhan, learned counsel for the accused has referred to the judgment of the Supreme Court in Sahadevan and anr. vs. State of Tamil Nadu (2012) 6 SCC 403 .. At paragraph 36 of the said judgment, the Supreme Court, by referring to the earlier judgment of the Supreme Court in State of Rajasthan vs. Bhup Singh, has held that for admissibility of the statement of the accused to the police, it should have been established, (i) a fact should have been discovered in consequence of the information received from the accused, (ii) he should have been accused of an offence and (iii) he should have been in the custody of the police officer when he supplied the information, (iv) the fact so discovered, should have been deposed to by the witnesses. The learned counsel for the accused has, therefore, urged before us that the accused was not in the custody of the police at the time when the aforesaid statement has been made by the accused and, consequently, the statement of the accused cannot be held to be admissible under Section 27 of the Indian Evidence Act. The learned Public Prosecutor has invited our attention to the judgment of the Supreme Court in State of Uttar Pradesh vs. Deoman Upadhyaya AIR 1960 SC 1125 . The Supreme Court at paragraphs 7 and 18 has observed thus, 7. The learned Public Prosecutor has invited our attention to the judgment of the Supreme Court in State of Uttar Pradesh vs. Deoman Upadhyaya AIR 1960 SC 1125 . The Supreme Court at paragraphs 7 and 18 has observed thus, 7. Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions i.e., of statements made by a person stating or suggesting that he has committed a crime. By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By S. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under S.24 and complete under S. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, accused person in S. 24 and the expression a person accused of any offence have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Narayan Swami v. Emperor, 66 Ind App 66: (AIR 1939 PC 47), by the Judicial Committee of the Privy Council, S.25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. The adjectival clause accused of any offence is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. The adjectival clause accused of any offence is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against a person accused of any offence . By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas S. 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, S. 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The expression, accused of any offence in S. 27, as in S. 25, is also descriptive of the person concerned, i.e. against a person who is accused of an offence, S. 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though S. 27 is in the form of a proviso to S.26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by S. 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By S. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered....... 18. Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence & on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. As we have already observed, the expression accused of any offence is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by S. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. 18. A reference at this juncture may also be usefully made to the judgment of the Supreme Court in Vikram Singh and ors. vs. State of Punjab AIR 2010 SC 1007 .. The Supreme Court at paragraph 12 has repelled the contention that Section 27 of the Indian Evidence Act would be operable only after formal arrest under Section 46(1) of the Cr.P.C. The Supreme Court held that what is contemplated in Section 27 is about the custody of a person accused of an offence and is not relatable to any formal arrest. In the present case, since the accused was being questioned by the police, no doubt in front of a mob, the accused can be said to be in the custody of the police and consequently the information given by the accused led to the discovery of the dead body of the victim and her school bag. The doctrine of confirmation, therefore, establishes the knowledge of the accused vis-a-vis not only the dead body, but also the place where the dead body was thrown. The doctrine of confirmation, therefore, establishes the knowledge of the accused vis-a-vis not only the dead body, but also the place where the dead body was thrown. Similarly, the information of the accused encompasses not only the object i.e. the school bag which was seized and the finding of the dead body, but also the place from which it had been recovered. The accused, when questioned in his statement under Section 313, has not offered any explanation whatsoever as to how he had the knowledge about the place where the dead body and the school bag were. In fact, the residents of the village had made strenuous efforts at tracing the whereabouts of the victim, but despite such strenuous search, the whereabouts of the victim were not found. The accused had the exclusive knowledge about the place where the dead body had been thrown and the place where the school bag of the victim had been thrown. The dead body had sunk to the bottom of the well and was not floating on the surface of the water. The dead body was thus not visible to any person may have peeped in the well out of curiosity. The knowledge of the accused, therefore, about the place where the dead body had been thrown and the school bag had been thrown was an exclusive knowledge attributable to the accused and none else. As pointed out by us above, the accused has not offered any explanation as to how he had gathered the information. 19. A reference in this behalf may usefully be made to the judgment of the Supreme Court in the case of State of Maharashtra vs. Suresh (2000) 1 SCC 471 .. The Supreme Court has held that in the event the discovery is proved, three inferences would follow, (i) that the accused himself had kept the object, (ii) he had knowledge where the object had been kept and (iii) he had seen someone keeping the object. The Supreme Court held that in the absence of any explanation from the accused as to how he had the information as to where the object was, the inference can legitimately be drawn that it is the accused who had kept the object. We may usefully reproduce the observations of the Supreme Court at paragraph 26 of the judgment, 26. The Supreme Court held that in the absence of any explanation from the accused as to how he had the information as to where the object was, the inference can legitimately be drawn that it is the accused who had kept the object. We may usefully reproduce the observations of the Supreme Court at paragraph 26 of the judgment, 26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act. In the present case, since the knowledge of the accused as to the place where the dead body and the school bag were was exclusively as no other person in the village was aware about it, it was for the accused to have explained as to how he had the knowledge/information. Failure of the accused to offer any explanation would permit the court to draw an inference that it is the accused and the accused alone who had kept the dead body and the school bag at the places where they were found. The confirmation of the aforesaid information by actually finding the dead body in the well and the school bag and the place where the accused had said that they had been kept. The confirmation of the aforesaid information by actually finding the dead body in the well and the school bag and the place where the accused had said that they had been kept. Thus, from the evidence, we find that the prosecution has proved beyond reasonable doubt that the information given by the accused to the police officers led to the discovery of the dead body of the victim and the school bag of the victim. Though PW 10 Hanmant states that he along with the police had gone towards the Lakade Mala and in the sugarcane crop they had found the school bag of the victim, the aforesaid statement, in our opinion, is an erroneous statement inadvertently made as the evidence of the other witnesses clearly indicates that the school bag and the dead body were discovered after the accused was questioned by the police. Thus, in our opinion, therefore, the prosecution has established that the dead body and the school bag were discovered pursuant to the information given by the accused. 20. PW 4 Akash is undoubtedly a child witness. Though PW 4 Akash may be a child witness, he is competent witness and, therefore, his evidence cannot be discarded or jettisoned merely on that score. It is true that the court generally insist for corroboration of the evidence of a child witness, as a child is susceptible being tutored and may state facts out of pure imagination. In the present case, we find that PW 4 Akash, though was a child witness, yet was of mature understanding. Presence of PW 4 Akash at the place of the incident i.e. at the Murgaai temple was natural as all the children were playing there. It appears that the children used to leave the house at about 10 a.m. and used to play at the Murgaai temple for some time and thereafter used to go to the school. PW 4 Akash, victim and the other children were playing a game of hide and seek. PW 4 Akash was giving a den and consequently the other children had concealed themselves. PW 4 Akash in categorical terms states that the accused, who was wearing black clothes came at the Murgaai temple and dragged the victim with him towards the stream. In the Marathi deposition of PW 4 Akash what is recorded is that the accused had pulled the victim. PW 4 Akash in categorical terms states that the accused, who was wearing black clothes came at the Murgaai temple and dragged the victim with him towards the stream. In the Marathi deposition of PW 4 Akash what is recorded is that the accused had pulled the victim. The incident of the accused taking the victim had occurred in broad day light i.e. somewhere between 10 to 10.30 in the morning. Nothing has been brought on record, which would, in any manner, indicate that on account of any obstruction like trees etc. the vision of PW 4 Akash was obscured and, therefore, he could not be in a position to clearly see the accused. PW 4 Akash had not just a glimpse at the accused, but had seen the accused taking/dragging/pulling the victim towards the stream. In such circumstances, therefore, according to us PW 4 Akash had adequate opportunity of observing the features of the accused. Identification parades are generally held at the stage of investigation for assurance of the Investigation Officer that the investigation is proceeding in the right lines. It is not necessary that in each and every case that the absence of a Test Identification Parade, the identification of the accused in the court would be vitiated. The identification of the accused in the court is the substantive evidence, while identification in the Test Identification Parade is of corroborative nature. In this case, since PW 4 Akash had every opportunity of observing the accused, and since the incident had occurred in broad day light, according to us, failure of the prosecution to hold the Test Identification Parade would not, in any manner, vitiate the identification of accused by PW 4 Akash. Similarly, PW 13 Sidram also states that the person wearing black clothes had come to his Kirana shop and had asked for tobacco. In fact, if the evidence of PW 13 Sidram is perused carefully, it would reveal that when he had gone to Murgaai temple on seeing a crowd there and someone had mentioned about a person wearing black clothes and immediately PW 13 Sidram recollected that a person wearing black clothes had come to his Kirana shop and had asked for tobacco. In cross-examination, PW 13 Sidram has clearly admitted that he had identified the accused as he was a Bihari and thereby meaning that the person who had come to his shop asking for tobacco was also a person from Bihar. Thus, we find that the identification of the accused by both PW 4 Akash and PW 13 Sidram can certainly be relied upon. Evidence of PW 4 Akash is corroborated by his conduct. PW 4 Akash immediately informed his father, who, in turn, informed the others and in fact it was a disclosure made by PW 4 Akash to others which led the villagers and then the police to the gates of the Balkrishna Hatchery, where the accused was called, identified and questioned. Thus, the conduct of PW 4 Akash in immediately and spontaneously informing his father about a person wearing black clothes taking the victim to the stream would be strong corroboration to the evidence of PW 4 Akash who is a child witness. On that score also we find that the evidence of PW 4 Akash is corroborated by his conduct. The learned Public Prosecutor, therefore, has rightly urged before us that the evidence of PW 4 Akash is natural and inspires the confidence of the court for placing implicit reliance regarding the accused taking the victim along with him as well as for identification of the accused as the person who had taken the victim with him. 21. Mr. Pradhan, the learned counsel for the accused has urged that the prosecution has not placed on record the muster roll in respect of the alleged absence of the accused at the Balkrishna Hatchery on the day of the incident. It is, therefore, urged before us that in the absence of the muster roll, oral evidence of PW 15 Santosh should not be relied upon and accepted. The learned Public Prosecutor has countered this submission by urging before us that PW 15 Santosh has in clear terms stated about the absence of the accused on the day of the incident. The learned Public Prosecutor has pointed out to us that there is an extremely sketchy cross-examination of PW 15 Santosh and there is no reason whatsoever for disbelieving PW 15 Santosh. The learned Public Prosecutor has pointed out to us that there is an extremely sketchy cross-examination of PW 15 Santosh and there is no reason whatsoever for disbelieving PW 15 Santosh. PW 15 Santosh, in his cross-examination has clearly stated that the nature of his duty was the labour management in the morning and in the discharge of his duties, on the day of the incident, he had checked the muster roll and had found that the accused was absent. Santosh further states that he had asked one Chaudhary as to where the accused had gone and he was informed by Chaudhary that the accused had gone to a medical officer at village Bedag on account of pain in his legs. Santosh also states that he had checked the muster roll again at 1.00 p.m., but had noticed that the accused was absent. It is true that the original muster roll has not been produced in the court. In the cross-examination, it has been elicited that he had personally verified as to which worker was present and which worker was absent. There is nothing in the cross-examination which would even remotely affect the credibility of this witness that he had examined the muster roll and had found that the accused was absent. The muster roll would have certainly corroborated the oral evidence of this witness. However, in the absence of the muster roll being produced in the court, according to us, the evidence of this witness cannot be jettisoned. As pointed out by us above, the credibility of this witness is not affected in the cross-examination and, therefore, we find that implicit reliance can certainly be placed on the evidence of PW 15 Santosh that when he had examined the muster roll in the morning and in the afternoon, he had noticed that the accused was absent. The reason given by Chaudhary for the absence of the accused would not be admissible in evidence as it would be hear-say evidence as the said Chaudhary has not been examined. In any event, the accused in his defence under Section 313 does not claim that he was present at the Hatchery. The accused has, in fact, not offered any explanation whatsoever apart from merely stating that the evidence of PW 15 Santosh was false. 22. In any event, the accused in his defence under Section 313 does not claim that he was present at the Hatchery. The accused has, in fact, not offered any explanation whatsoever apart from merely stating that the evidence of PW 15 Santosh was false. 22. Similarly, the non production of the attendance register from the school, where the victim was studying, is also one of the submissions urged before us by the learned counsel for the accused. PW 10 Hanmant states that he had gone to the school of the victim in the evening in order to bring her home, but had been informed that she had not attended the school. Hanmant further states that he had searched for the victim and had also enquired from her friends, but was informed that the victim had not come to the school. There is no reason whatsoever for PW 10 Hanmant to state that the victim had not attended the school and was not found in the school, if the victim had indeed attended the school. The dead body of the victim was found in the well in the wee hours of the morning of the next day, as the search has been instituted during the night. The medical evidence, therefore, clearly indicates that the victim could not have been present in the school in the evening when Hanmant had gone to bring the victim home. Therefore, non production of the attendance register of the school, which would have shown the absence of the victim, cannot be considered to be a flaw of such a magnitude as would be fatal to the prosecution case. 23. Mr. Niteen Pradhan, learned counsel for the accused has urged before us that the entire trial is vitiated on account of the fact that the provisions of Section 233 have not been followed as the accused was not called upon to enter his defence, though the said provision is a mandatory provision. Reliance is placed by Mr. Pradhan on the judgment of the Division Bench of the Kerala High Court in Sivamani alias Sivam and anr. vs. State of Kerala 1993 Cri. L.J. 23.. The Division Bench of Kerala High Court has held that the provision was mandatory and, therefore, had remitted the matter back to the trial court. Mr. Reliance is placed by Mr. Pradhan on the judgment of the Division Bench of the Kerala High Court in Sivamani alias Sivam and anr. vs. State of Kerala 1993 Cri. L.J. 23.. The Division Bench of Kerala High Court has held that the provision was mandatory and, therefore, had remitted the matter back to the trial court. Mr. Pradhan, learned counsel for the accused has further relied upon the judgment of the Kerala High Court in State of Kerala vs. Mundan 1981 Cri.L.J. 1795, wherein the Divison Bench of the Kerala High Court has also taken similar view. The learned Public Prosecutor has referred to the judgment of the Full Bench of the Kerala High Court in K. Moidu S/o Mammoo vs. State of Kerala 2009 Cri.L.J. 4045, wherein the Full Bench of the Kerala High Court, overruling the judgments of the Division Bench of the Kerala High Court in Sivamani alias Sivam and anr. vs. State of Kerala and State of Kerala vs. Mundan, has held that non compliance of the provisions of Sections 232 and 233 would not ipso facto vitiate the proceedings. The learned Public Prosecutor has also invited our attention to the judgment of the Division Bench of this court in Sangappa Nigappa Malabadi vs. The State of Maharashtra 1987 (1) Bom. C. R. 576, wherein the Division Bench has held that requirement of Section 232 (233) was not mandatory and, therefore, failure to observe the procedure of calling upon accused to enter his defence was not a material irregularity which would vitiate the trial. The Division Bench ultimately came to the conclusion that on account of the said irregularity, the judgment of the trial court was not vitiated on account of non compliance of the provisions of Section 232 (233). 24. It is urged before us by the learned counsel for the accused that though the accused was medically examined, the report of his medical examination was not tendered in evidence. It is, therefore, urged before us that failure of the prosecution to tender a medical report in evidence or examine the medical officer is fatal to the prosecution and would, therefore, result in acquittal of the accused. The learned Public Prosecutor has admitted that though the accused had been medically examined, the report of his examination was not tendered in evidence, nor was the medical officer examined. Prosecution has examined PW 3 Dr. The learned Public Prosecutor has admitted that though the accused had been medically examined, the report of his examination was not tendered in evidence, nor was the medical officer examined. Prosecution has examined PW 3 Dr. Patil and PW 9 Dr. Momin, who have conducted the post-mortem examination on the dead body of the victim. Both these medical officers have been cross-examined, but it has not been elicited in their cross-examination that any person committing forcible intercourse with the victim would have definitely sustained injury to his penis which could have been noticed in the medical examination. It, therefore, cannot be urged before us that presence of the injuries were bound to be there in the event the accused is said to have committed the offence. Thus, the non tendering of the report of the medical examination of the accused or non examination of the medical officer, who had examined the accused, cannot be said to be a factor which would tilt the balance towards acquittal. Presence of injury by itself would not have indicated that the accused had committed an offence and similarly absence of injury also would not negate the case of the prosecution that the accused had committed the offence. Presence or absence of the injury, obviously, would depend upon the nature of force applied by the assailant as well as the resistance, if any, put-forth by the victim. Since the medical officers have not stated that for a person to commit the aforesaid offence that the person would have definitely sustained injury, the failure of the prosecution to tender in evidence the report of the medical examination of the accused cannot be urged as a pointer towards his innocence. 25. Mr. Pradhan, learned counsel for the accused has urged before us that the report of the Cytology examination regarding finding of spermatozoa in the perennial swab was not put to the accused in his statement under Section 313 and consequently the aforesaid report cannot be read in evidence. The learned Public Prosecutor has pointed out to us that Question No. 14 pertains to findings in the Cytology examination report. In Question No. 14 the accused had been informed that PW 3 Dr. Sunil Patil had sent vaginal and perennial swab for testing and the result showed perennial swab positive for spermatozoa (sperms), while vaginal swab was negative for spermatozoa. In Question No. 14 the accused had been informed that PW 3 Dr. Sunil Patil had sent vaginal and perennial swab for testing and the result showed perennial swab positive for spermatozoa (sperms), while vaginal swab was negative for spermatozoa. He was further informed that the findings are that anal intercourse had been done. He was questioned about it and he had replied as false. From the perusal of Question No. 14, we find that though the contents of the report in a sense were not put to the accused in his 313 statement as by giving exhibit number of the report, yet the contents of the report were put to the accused and he had replied in the negative. We, therefore, find that this is not a case where a circumstance is relied by the prosecution but the circumstance is not put to the accused. In the present case, therefore, we find that the contents of Cytology examination report regarding finding of spermatozoa in the perennial swab of the victim had been put to the accused and he had replied in the negative. The judgments cited by the learned counsel for the accused that circumstances which are not put to the accused in his 313 statement cannot be used against the accused, therefore, are not adverted to at all by us in the background of the fact that the contents of the report have been put to the accused and the accused has denied the same. 26. Thus from the perusal of the entire prosecution case, we find that the prosecution has established that the victim had left her home at about 10 a.m. for attending her school, the victim was playing near the Murgaai temple along with PW 4 Akash and the other children, the accused who was employed in the hatchery was not present at his job and was near the Murgaai temple and had taken the victim forcibly along with him. PW 4 Akash had seen the accused forcibly taking the victim along with him towards the stream. The prosecution has further established that the accused thereafter had gone to the shop of PW 13 Sidram and had purchased tobacco. PW 13 Sidram as well as PW 4 Akash have identified the accused as the same person who had come to the shop for purchasing tobacco and who had forcibly taken the victim, respectively. The prosecution has further established that the accused thereafter had gone to the shop of PW 13 Sidram and had purchased tobacco. PW 13 Sidram as well as PW 4 Akash have identified the accused as the same person who had come to the shop for purchasing tobacco and who had forcibly taken the victim, respectively. Because of the uproar in the village regarding missing of the victim, as PW 10 Hanmant had noticed that the victim had not attended the school when he had gone for fetching her home, the mob marched towards the hatchery and in the meanwhile the police arrived at the gate of the hatchery and had questioned the accused who had been called at the gate. The disclosure of the accused led to the finding of the school bag and the dead body of the victim. The post-mortem examination revealed that sexual intercourse had been committed on the victim and there is evidence to indicate that the anal intercourse had also been done. The victim was alive when she was thrown in the well and the cause of death is asphyxia due to drowning. 27. The evidence on record, therefore, would indicate that the accused had been stalking the victim and, therefore, knew for certain that she would be found at 10.30 a.m. at the Murgaai temple playing with the children. The accused had suddenly appeared from nowhere and had forcibly taken the victim along with him. The accused had not only satisfied his carnal lust by committing sexual intercourse as well as anal intercourse, but then apprehending that the victim may identify him as the perpetrator of the crime, had thrown her in the well. The accused had shown no compunction in committing this gruesome act on a victim who was aged merely 9 years. The children are considered to be soft targets as they offer little or no resistance. The children can easily be overpowered as they offer very little or no resistance as compared to an adult woman. It is also easy to get rid of the victim who is a child, as in this case the accused had thrown the victim in the well. The children can easily be overpowered as they offer very little or no resistance as compared to an adult woman. It is also easy to get rid of the victim who is a child, as in this case the accused had thrown the victim in the well. The accused has not shown any remorse when he was questioned by the police in front of the mob and has shown no remorse or has not shown any regrets during the trial as well as when he was questioned about the sentence to be awarded to him. The accused has committed this offence in a most gruesome and grotesque manner which is not only repulsive but shocks the collective conscience of the society. It is evident that the villagers were apprehending that the victim had come to some harm and, therefore, the entire village was in uproar and infuriated against the accused, who is alleged to have committed offence, when they marched towards the gate of the hatchery. In fact the police, after questioning the accused, had sent the accused back to the police station in order to ensure that the accused comes to no harm and is not lynched by the mob who had assembled there. 28. The trial Judge, while awarding the sentence of death, has noticed the following aggravating circumstances: (i) Accused was serving in the same factory where victim's father was serving and residing in the same factory premises. (ii) There is strong circumstance of accused knwoing the school timing of the victim and the fact that she used to go to school alone, which is far away from factory premises. (iii) The road from village to factory has less traffic. (iv) The girl was taken from Marguaai temple to the sugarcane field. The distance is approximately 1 k.m. (v) The hight of the sugarcane in the field can be seen from the photographs on record. It makes the inside things not visible from the road going nearby. (vi) Accused had natural as well as unnatural sexual intercourse with the girl, which resulted in girl becoming unconscious. (vii) Accused had pressed her mouth and nose in such a way that froth had come out of her mouth and there was nasal bleeding. (viii) Accused had then taken the girl in unconscious state to the well at a distance of 150 ft. (vii) Accused had pressed her mouth and nose in such a way that froth had come out of her mouth and there was nasal bleeding. (viii) Accused had then taken the girl in unconscious state to the well at a distance of 150 ft. away from the place of rape and then thrown her into the well. (ix) The act of throwing the girl in unconscious state in the well was with knowledge or reasonably given knowledge that death will occur. The said act was done in order to screen himself. (x) There was no enmity between informant and accused. (xi) No reasonable ground has been shown for alleged false implication. (xii) The defence of false implication is unbelievable and unsustainable. Informant was not any way connected to any political party, who had conducted agitation against Bihari persons. (xiii) The minor child was helpless when the accused committed the cruel act. (xiv) The girl was aged 9 years only and was innocent. (xv) The girl was required to go through the torture as is evident from medical evidence. The mitigating circumstances, as noticed by the trial court, are as follows:- (i) Age of the accused is 22 years. (ii) Case rests on circumstantial evidence. That the case rests on circumstantial evidence cannot be considered as a mitigating circumstance. One other aggravating circumstance has not been noticed by the trial court and that circumstance is that the accused had executed this diabolical crime after due planning as the accused was lying in wait for the victim near the Murgaai temple. It also appears to us that the accused, who had stalked the victim for quite some time, knew for certain that she would be found at the Murgaai temple playing with the other children. The accused, after committing the crime, in a very casual manner returned back to the village and had purchased tobacco from PW 13 Sidram. This was not a crime committed by the accused on the spur of the moment where his carnal desire overpowered him. This was a crime committed by the accused with due deliberation and due planning and accordingly had absented himself from the duty at the hatchery. After committing the crime, the accused had returned back to the hatchery and was found in the premises of the hatchery when he was caught by the police. 29. Mr. This was a crime committed by the accused with due deliberation and due planning and accordingly had absented himself from the duty at the hatchery. After committing the crime, the accused had returned back to the hatchery and was found in the premises of the hatchery when he was caught by the police. 29. Mr. Pradhan, learned counsel for the accused has urged before us that the accused was aged about 22 years at the time of the incident and, therefore, age is a mitigating circumstance in favour of the accused. It is also urged before us that there is possibility of the accused being reformed and there is a strong possibility that accused would not indulge in the commission of such offence in future. The learned counsel for the accused, therefore, has urged before us for commuting the death sentence to imprisonment for life. 30. The learned counsel for the accused has placed reliance on the judgment of the Supreme Court in Mohammad Giasuddin vs. State of Andhra Pradesh AIR 1977 SC 1926 .. This judgment of the Supreme Court rendered in Mohammad Giasuddin's case was a judgment prior to the constitutional bench judgment of the Supreme Court in Bachan Singh vs. State of Punjab (1982) 3 SCC 24 .. In this case, the Supreme Court held that there was a need on the part of the judges to see that sentencing ceases to be down graded to Cindrella status. The new Criminal Procedure Code gives an opportunity in Section 248(2) to both parties to bring to the notice of the court facts and circumstances which will help personalize the sentence from a re-formative angle. It is fundamental to put such provision to dynamic judicial case. In Giasuddin's case, the accused, therein, had been convicted under Section 420 of the IPC and the Supreme Court, therefore, reduced the sentence to imprisonment for 18 months and also issued directions regarding guarded parole release every 3 months for at least a week punctuating the total prison term and assignment of suitable mental-cum-manual work and payment of wages in jail to be complied with. 31. Mr. Pradhan, learned counsel for the accused, has also referred to the judgment of the Supreme Court in Rameshbhai Chandubahi Rathod (2) vs. State of Gujarat (2011) 2 SCC 764 .. 31. Mr. Pradhan, learned counsel for the accused, has also referred to the judgment of the Supreme Court in Rameshbhai Chandubahi Rathod (2) vs. State of Gujarat (2011) 2 SCC 764 .. The accused in the said case had been convicted and sentenced to death for the commission of the offence punishable under Section 302 of the IPC on the ground of kidnapping and committing rape on a minor. The death sentence was confirmed by the High Court, as the High Court had found that the case against the accused fell in the category of rarest of rare cases. The judgment of the High Court was challenged by the accused by filing a Special Leave Petition and after leave was granted, the matter was heard by the Supreme Court on 25/2/2009 and there was a difference regarding the sentence. The matter was, therefore, referred to another Bench and the Supreme Court came to the conclusion that it would not be proper to maintain the death sentence of the accused as they referred to the differencing opinion that there was uncertainty with the nature of the circumstantial evidence and that the mitigating circumstance particularly the young age of the appellant and the possibility that he could be rehabilitated and would not commit any offence later on, could not be ruled out, as well as there was a violation of statutory provision under Section 235(2) read with Section 354(3) of the Cr.P.C. and the accused had not been given adequate opportunity to plead on the question of sentence. 32. Mr. Pradhan, learned counsel for the accused, has relied on the judgment of the Supreme Court in Amit vs. State of Uttar Pradesh (2012) 4 SCC 107 .. In this case, the Supreme Court, while maintaining the conviction of the accused found that the accused was a young person aged about 28 years and there was no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There was also nothing in the evidence to suggest that he was likely to repeat similar crimes in future. There was also nothing in the evidence to suggest that he was likely to repeat similar crimes in future. The Supreme Court also found that given a chance, the accused may reform over a period of years and, therefore, came to the conclusion that death sentence was not warranted and converted the sentence to life imprisonment with a direction that the life imprisonment would extend to the full life imprisonment, but subject to any remission or commutation at the instance of Government for good and sufficient reasons. 33. The learned Public Prosecutor has submitted that the balance-sheet of aggravating and mitigating circumstances tilts in favour of the prosecution as there are hardly any mitigating circumstance. The learned Public Prosecutor has urged before us that the age of the accused cannot be considered to be a mitigating circumstance in each and every case as the background of the offence and the manner in which it has been committed cannot be lost sight of. The learned Public Prosecutor has further urged before us that there is no possibility of the accused being reformed and, therefore, the sentence of death awarded by the trial court is the appropriate sentence in the facts of the present case. The learned Public Prosecutor has referred to the judgment of the Supreme Court in Rajendra Pralhadrao Wasnik vs. State of Maharashtra (2012) 4 SCC 37 . In this case, the accused had been convicted for offence punishable under Sections 302, 376(2)(f) and 377 of IPC. The Supreme Court found that the accused had committed rape and murder of a child,aged 3 years. The accused was then a married person, aged 31 years, who had lured the child on the pretext of buying biscuits. The Supreme Court upheld the sentence of death as the accused had committed the offence in a heinous, brutal and inhuman manner. 34. The learned Public Prosecutor has relied upon the judgment of the Supreme Court in Mohad. Mannan alias Abdul Mannan vs. State of Bihar (2011) 5 SCC 317 .. In this case, the accused who was aged 43 years and was working in the house of the grand-father of the victim as a mason, had committed the offence under Sections 302, 376, 366 and 201 in respect of a minor, who was aged 7 years, in a calculated and pre-planned manner. In this case, the accused who was aged 43 years and was working in the house of the grand-father of the victim as a mason, had committed the offence under Sections 302, 376, 366 and 201 in respect of a minor, who was aged 7 years, in a calculated and pre-planned manner. The Supreme Court observed that such cruelty towards a young child is appalling and the accused had stooped so low, as to unleash his monstrous self on the innocent, helpless and defenceless child. The said act invited the extreme indignation of community and shocked the collective conscience of society. The Supreme Court further came to the conclusion that the accused was a menace to the society and would continue to be so could not be reformed and, therefore, upheld the sentence of death awarded to the accused. 35. The learned Public Prosecutor has also placed reliance on the judgments of the Supreme Court in State of Uttar Pradesh vs. Sattan alias Satyendra and ors. (2009) 4 SCC 736 ., State of Uttar Pradesh vs. Satish (2005) 3 SCC 114 ., Molai and anr. vs. State of Madhya Pradesh (1999) 9 SCC 581 ., Kamta Tiwari vs. State of Madhya Pradesh AIR 1996 SC 2800 ., Dhananjoy Chatterjee vs. State of West Bengal 1995 AIR SCW 510. and Laxman Naik vs. State of Orissa (1994) 3 SCC 381 . to urge before us that in similar circumstances, the Supreme Court has upheld the sentence of death awarded to the accused. 36. The learned Public Prosecutor has also referred to a recent judgment of the Supreme Court in Sudam @ Rahul Kaniram Jadhav vs. State of Maharashtra 2012 (1) Bom. C.R. (Cri) 399.. In this case, the accused had convicted for murder of four children and a woman with whom he was residing. The prosecution had alleged that the accused had killed his children by throttling and had killed the deceased wife by strangulation. The appellant had then thrown the dead bodies in a pond. The trial court had awarded sentence of death, which was confirmed by the High Court in appeal. The Supreme Court came to the conclusion that the crime was committed in beastly, extremely brutal and barbaric manner. The appellant had then thrown the dead bodies in a pond. The trial court had awarded sentence of death, which was confirmed by the High Court in appeal. The Supreme Court came to the conclusion that the crime was committed in beastly, extremely brutal and barbaric manner. The appellant was menace to the society, who could not be reformed and, therefore, held that the case fell in the category of rarest of rare cases and maintained the sentence of death awarded to the accused. 37. At an age when the victim should be playing amongst her friends, a grisly and a gory episode took place in which the victim was forcibly raped and she was thrown alive in the well to die due to drowning. The prosecution evidence has unfolded the details of the incident, which revealed a diabolic and devilishly planned rape and murder which was very cunningly executed by the accused. We, therefore, now propose to deal with the aggravating and mitigating circumstances. AGGRAVATING CIRCUMSTANCES: (a) The offence committed by the accused had not been committed on the spur of the moment i.e. it was not an incident where on the spur of the moment his lust overpowered his reasoning capacity and he committed the offence. The offence, which was committed by the accused, was a pre-planned offence. It was devilishly concealed by the accused and very brutally executed. The accused could not have stumbled upon the victim who was playing near the Murgaai temple. The accused must have planned and must have stopped the victim in order to gather information about the routine of the victim. The accused suddenly dragged the victim along with him to a secluded place in the sugarcane crop. It is obvious to us that the accused must have recondite the place in order to find out a suitable secluded spot. In fact, the spot was so secluded that none of the villagers had even thought of searching the place. Thus, the offence which the accused has committed was a pre-planned and had not been committed by him on the spur of moment. (b) The accused had committed the offence in order to satisfy his lust. The accused had forcibly raped the victim and had performed unnatural intercourse with her. Thus, the offence which the accused has committed was a pre-planned and had not been committed by him on the spur of moment. (b) The accused had committed the offence in order to satisfy his lust. The accused had forcibly raped the victim and had performed unnatural intercourse with her. Though there was no charge for an offence punishable under Section 377 of the IPC and consequently the accused is not punished for the same, yet the medical evidence clearly indicates that unnatural intercourse had been performed. The victim was merely 9 years of age and was not so physically developed as would excite any carnal desire, but the accused selected the victim as obviously children do not offer any resistance as compared to a full grown adult. The children are, therefore, found to be soft targets and it is equally easy to get rid of the body of crime by either strangulating a victim or dumping the victim in a well. In this case, the accused had committed rape on the victim and had thrown her in the well, leaving her to die of drowning. The accused has exhibited a total brutality and inhuman conduct in the commission of the offence. The medical evidence indicated that there was a recent complete rupture of the hymen. The said injury clearly speaks volumes about the force and the brutality with which the offence was committed. The medical evidence, however, is unable to highlight the excruciating pain and agony which the victim must have felt as well as cruel manner in which the accused threw the victim in the well leaving her to die of drowning. (c) The subsequent conduct of the accused, post the incident, also indicates that the accused had felt no remorse nor had he experienced any twitch of the conscience for the enormity of the crime which he had committed. After the commission of the crime, the accused was found coolly wandering in the village and in fact had gone to the shop of PW 13 - Sidram for purchasing tobacco. The accused thereafter attended his duties in a routine manner exhibiting no signs of having either regret or showing any remorse or sorrow at what he had done. (d) The victim was a nine year old girl who was a defenceless. The victim had not offered any provocation to the accused whatsoever. The accused thereafter attended his duties in a routine manner exhibiting no signs of having either regret or showing any remorse or sorrow at what he had done. (d) The victim was a nine year old girl who was a defenceless. The victim had not offered any provocation to the accused whatsoever. Neither the victim nor her family members had, any time, crossed swords with the accused and there was no history of any animosity between them. The victim, by virtue of her age, was in a situation where she could have offered little or no resistance at all. The accused has committed an offence of rape on a defenceless child which is the ultimate insult to womanhood. The entire gory and grisly incident had shocked the collective conscience of the village and, in fact, the entire village was shocked by the sudden disappearance of the victim and a mob of more than 100 persons had assembled at the Murgaai temple and after the clue being offered by PW 13 Sidram, had proceeded to the hatchery, where they suspected the accused to be residing. The mob was infuriated and that is a clear indication that even before the discovery of the dead body of the victim and even before it transpired that the victim had been brutally raped and killed, the collective conscience of the villagers was shocked to a degree that they would have lynched the accused had the police not arrived. (e) The accused has shown no remorse or repentance at all for the crime committed by him. As pointed out by us above, immediately after the commission of the crime, there was no semblance of regret or remorse. Even when the police had questioned the accused in front of the mob, the accused had not either expressed sorrow at having committed the crime or any repentance at what he had done. The accused had not shown any repentance whatsoever even when the trial judge had questioned him about the sentence. The accused has not even remotely indicated anywhere in his statement under Section 313 that he was regretting for the crime which he had committed. The accused has also not ventured to offer any explanation about the circumstances under which he had committed the crime. The accused has not even remotely indicated anywhere in his statement under Section 313 that he was regretting for the crime which he had committed. The accused has also not ventured to offer any explanation about the circumstances under which he had committed the crime. Throughout the incident and throughout the trial, the accused has maintained a facade of nonchalance indicating that he cared least for what he had done. (f) As pointed out by us, the offence has been committed in a most brutal manner. The injuries which were inflicted on the deceased victim must have caused excruciating pain and in order to snuff her cries for help, the accused had gaged or pressed her mouth and nose which had rendered her unconscious. The accused unmindful of the age of the victim or the fact that she was unconscious, threw her in the well, as a result of which the victim died of drowning. MITIGATING CIRCUMSTANCE: (a) The mitigating circumstance is the age of the accused which is said to be 22 years and there is a possibility that the accused may be reformed and may not commit similar offence in future as there is no history of the accused having committed similar offences in the past. It is true that the accused was aged about 22 years at the time of commission of crime. According to us, age of the offender would cease to be a mitigating circumstance, if the manner in which the offence is committed is taken into consideration, the age of the victim and the total bestiality which is shown by the accused. In this case, the victim was aged just 9 years and the accused had forcibly committed rape on the victim and had also performed unnatural intercourse with her and while the victim was unconscious, had thrown the victim in a well. The accused has not shown any remorse either immediately after the incident, during investigation or during the trial. There is no semblance of repentance at all as can be discerned from the evidence on record. The possibility that an accused may reform can be judged on the basis of the conduct of an accused. An accused, who has shown repentance has shown remorse - has shown genuine regret at having committed an offence, is the offender who can be reformed. The possibility that an accused may reform can be judged on the basis of the conduct of an accused. An accused, who has shown repentance has shown remorse - has shown genuine regret at having committed an offence, is the offender who can be reformed. An offender, who remains a nonchalant offender throughout and does not show any regret or repentance at having committed the offence, cannot be said to be a person who can be reformed. Therefore, according to us in the present case and as per the evidence which we have discussed above, we do not find that there is any possibility that the accused may reform. 38. Thus, upon evaluating the aggravating and mitigating circumstances, according to us, this is a case which falls in the category of rarest of rare cases. The accused would be a menace to the society and continue to be so as for the reasons stated in the earlier paragraphs, there is no possibility of the accused being reformed. We have, therefore, no hesitation in confirming the sentence of death awarded by the trial court. 39. Accordingly, Criminal Appeal No. 102 of 2013 filed by the appellant is dismissed. The Reference made by the Sessions Court is answered in the affirmative by confirming the sentence of death.