JUDGMENT Hon’ble Sunita Agarwal, J.—A judgment dated 9.7.2013 passed by the Additional Sessions Judge /Special Judge (D.A.A.) Mainpuri convicting the appellant to death sentence under Section 302 I.P.C. with rigorous imprisonment for life under Section 376 (2) (f) I.P.C. and a fine of Rs. 15,000/- in default of payment of fine he shall further undergo six months additional simple imprisonment and rigorous imprisonment under Section 201 I.P.C. for seven years with a fine of Rs. 5,000/- in default of payment of fine, he shall further undergo additional simple imprisonment for three months, has been challenged by means of this capital appeal, preferred by the appellant. A reference No. 9 of 2013 under Section 366 Cr.P.C. for confirming the death sentence has also been sent by the trial Court. All the sentences were to run concurrently. 2. We have heard Shri Ajay Kumar, learned counsel for the appellant and Shri Akhilesh Singh, learned Government Advocate for the State and have perused the trial Court judgment and the record. The prosecution case is that a written report was submitted by one Shiv Nath Singh alias Gabbar Singh son of Lala Ram resident of village Bhanau P.S. Bichava district Mainpuri at the police station Bichava. It was mentioned therein that on 11.1.2011 his niece (deceased) aged about 9 years daughter of Amir Singh, Prem Lata daughter of Nand Ram alongwith his father Lala Ram aged about 66 years and niece (Bhanji) Reena daughter of Manohar Singh were watching the grove in the village Lalpur-Sagoni Police station Dannahar, district Mainpuri. On that day at about 4.45 p.m. accused Satish arrived in the grove and asked his niece, the victim, to pluck some guavas for him and paid her money for that. The victim went away with him inside the grove. When he came back to the house from the market at about 5.30 p.m. he did not find the victim upon which he inquired about her from Prem Lata and Reena, who told him that in the evening Satish Dubey came to the grove and took away the victim with him on the pretext of giving him some guavas. When she did not return back, they alongwith their grand father Lala Ram searched for the victim but did not find her. They thought that the deceased would have returned to her house with Satish, who is also the resident of the same village. When she did not return back, they alongwith their grand father Lala Ram searched for the victim but did not find her. They thought that the deceased would have returned to her house with Satish, who is also the resident of the same village. It was further stated that the informant made search for the victim alongwith his family members and villagers in the grove and nearby fields, but she could not be traced out. He was informed by some villagers that Satish was sitting at the triangle of the road upon which he reached there. As accused Satish saw him alongwith villagers he started running but they had apprehended him. They inquired about the victim, on which Satish had confessed his guilt and told that he tried to commit rape with her, she started shouting and due to fear he committed murder by strangulating her. Thereafter he had thrown her dead body in the Kali river. The informant and other villagers alongwith the accused went to the Kali river, where Satish had thrown the body of the victim, to search but could not trace the dead body. They then took the appellant to the police station. 3. On the basis of written report, a case crime No. 16 of 2011 under Sections 376, 302, 201 I.P.C. was registered against the accused-appellant. Prosecution examined nine witnesses, P.W. 1 Shiv Nath Singh, is the informant and uncle of the deceased, P.W. 2 Lala Ram, P.W. 3 Km. Prem Lata and P.W. 4 Km. Reena are the witnesses of last seen who were in the grove alongwith the deceased before she left with the accused Satish. P.W. 5 C/ 630 Jaiveer Singh is the witness of chik F.I.R.. P.W. 6 Dr. R.D. Yadav is the doctor who conducted postmortem on the body of the deceased. P.W. 7 S.I. Jagdish Prasad Verma is the witness of inquest. P.W. 8 S.I. Jitendra Kumar Singh is the second investigating officer to whom the investigation was handed over after death of the first investigating officer Satya Prakash Gupta. P.W. 9 Amir Singh is the father of the victim. 4. P.W. 7 S.I. Jagdish Prasad Verma is the witness of inquest. P.W. 8 S.I. Jitendra Kumar Singh is the second investigating officer to whom the investigation was handed over after death of the first investigating officer Satya Prakash Gupta. P.W. 9 Amir Singh is the father of the victim. 4. P.W. 1, Shiv Nath Singh, the informant in his statement submitted that the dead body of the deceased was found after 9 days of the occurrence of incident near Kali river, near village Gram Balipura and after receiving the information about the recovery of the dead body, he reached on the spot and identified the dead body. He informed at the police station and then police reached there. The inquest was prepared in his presence and he signed the same. The inquest was also signed by Shyam Sunder, Maidan Singh, Lala Ram and Amir Singh. The dead body was sent for postmortem. One blue slipper of the deceased was also recovered near the Kali River. 5. P.W. 2 Lala Ram in his deposition stated that on 11.1.2011 he alongwith his grand daughters, the victim, Prem Lata and Reena were watching the grove. Satish Dubey the appellant came there and paid some money to his grand daughter, the victim to provide him guavas . The victim went inside the grove alongwith Satish and then he went to another field to cut ‘Barseen’. When at about 5.30 p.m. his son Shiv Nath came back home from the market, he did not find the victim at home, he then inquired from Prem Lata and Reena. They told him that Satish Dubey the appellant took away the victim in the grove and thereafter she did not return back, then he alongwith his son went to the grove to search for her but they returned back home with no results. The villagers told him that accused Satish was found sitting near road triangle and was caught by them. After accused Satish confessed his guilt, P.W. 2 alongwith Satish and others went to the spot where Satish disclosed that he had thrown the dead body in the Kali river. They could not find the dead body, but the blue plastic slipper of the deceased was recovered at some distance. The dead body was later on found 1 K.M. away from the river bridge of Kali river after which the police was informed. They could not find the dead body, but the blue plastic slipper of the deceased was recovered at some distance. The dead body was later on found 1 K.M. away from the river bridge of Kali river after which the police was informed. The police reached on the spot of recovery, prepared inquest report of the dead body and obtained his signature on the same. This witness had identified the inquest report, paper No. 8-A, exhibit Ka 2. He also stated that the victim was aged about nine years at the time of the incident. 6. P.W. 3 Km. Prem Lata who was aged about 9 years on the date when her statement was recorded i.e. 19.1.2013. She deposed that on the day of incident she alongwith the victim and Reena went to the grove for watching the same. Her grandfather Lala Ram also accompanied them. She further deposed that her grandfather went to cut ‘Barseen’ in another field. At about 4 p.m. accused Satish Dubey reached there. He gave 10 Rs. to the victim for guavas and took her inside the grove but she did not come back. P.W. 3 Prem Lata heard the cries of her sister upon which she alongwith Reena went inside the grove. She saw that the victim was naked and Satish was lying on her. Seeing her, Satish threatened them to leave and they at once left the place and reached home. She told the entire incident to her grand father. After 8-9 days of the incident the victim was found dead. She further stated that on the date of the incident, she and the victim did not go to school as her grand mother had instructed them not to go to school that day. The victim was wearing a blue frock, black jacket, black pyjamai and black tie and blue slippers. She also deposed that no person other than Satish reached the grove on that day. In her cross examination she also stated that after reaching the house she told about the incident to her mother and other persons at around 5-6 p.m.. In the mean time the informant her uncle came to the house. 7. P.W. 4 Km. Reena who was aged about 10 years on the date when her statement was recorded on 12.3.2013. She narrated the same facts as deposed by Prem Lata(P.W. 3). In the mean time the informant her uncle came to the house. 7. P.W. 4 Km. Reena who was aged about 10 years on the date when her statement was recorded on 12.3.2013. She narrated the same facts as deposed by Prem Lata(P.W. 3). In her cross examination at one point of time she told that she alongwith Prem Lata and victim were playing near the hut in the grove. Her grandfather was not present there at the time of the incident. When after seeing the incident and threatened by Satish she alongwith Prem Lata reached the house they then told about the incident to her grand father Lala Ram(Nana) and uncle Gabbar (Mama), the informant. She also deposed that her grand father and uncle both went to the grove alongwith several villagers to search for the victim. 8. P.W. 5 Constable Jaiveer Singh has deposed that he was posted at P.S. Bichava and on the basis of the written report submitted by the informant Shiv Nath Singh on 12.1.2011 at about 3.30 p.m. prepared chik report and entries were made to this effect in G,D. . This witness has proved the chik report as exhibit Ka 3 and relevant G.D. Entry as exhibit Ka 4. He also deposed that accused Satish was brought to the police station by the informant, however, no Fard was made about this fact. 9. P.W. 6 Dr. R.D. Yadav who had conducted postmortem on the deceased deposed that the deceased was of average built. Her dead body was drenched in mud and water. In the medical examination he described following ante-mortem injuries on the person of the victim : 1. Contusion measuring 3x2 cm. just below right arm of mandible at 3 O’clock at 5 cm. in front of lower end of root of right ear. 2. Contusion measuring 8x3 cm. along right lateral surface of neck extending 1.5 cm. below the right arm of mandible. On exploration haematoma measuring 7 cm. X 3 cm. present between cornua of hyoid bone and upper 5 tracheal rings were fractured. 3. Contusion measuring 4 cm.x3cm. on posterior upper part (top of head) present 11 cm. above from root of left ear. 4. Contusion measuring 2 cm. around vaginal orifice present. Perineum lacerated, hymen lacerated and altered blood coming out. Traumatic swelling present. X 3 cm. present between cornua of hyoid bone and upper 5 tracheal rings were fractured. 3. Contusion measuring 4 cm.x3cm. on posterior upper part (top of head) present 11 cm. above from root of left ear. 4. Contusion measuring 2 cm. around vaginal orifice present. Perineum lacerated, hymen lacerated and altered blood coming out. Traumatic swelling present. Rigor mortis passed out from both upper and lower extremities and putrefaction had started . He gave an opinion that the death was caused due to Asphyxia as a result of ante mortem throttling. He further deposed that he has examined the vaginal smear in which he found plenty of red blood cells. Spermatozoa was not seen. He has prepared pathological report as exhibit Ka 6. In his cross examination he stated that the dead body was swollen but there was no mark of animal bite. He further deposed that no definite opinion can be formed about the rape or sexual intercourse. 10. P.W. 7 S.I. Jagdish Prasad Verma deposed that the inquest report exhibit Ka2 was in his handwriting and written by him as dictated by Satya Prakash Gupta. Other were also present there and their signatures were obtained. Thus, he proved the inquest report. He also proved other documents, photo-lash, letter to R.I,. letter to C.M.O., Challan lash as exhibits Ka-7, 8,9, and 10. 11. P.W. 8 S.I. Jitendra Kumar Singh, subsequent investigating officer had deposed that the case was initially investigated by S.I. Satya Prakash Gupta and handed over to him after death of S.I. Gupta. He deposed that the recovery memo of blue plastic slipper has been prepared on 12.1.2011 by the then investigating officer S.I. Satya Prakash Gupta which was paper No. 10 Aa. He certified the same and exhibited as Ka 12.The investigation was handed over to him on 24.1.2011. He also deposed that the site plan of the place of occurrence of the incident was prepared by S.I. Satya Prakash Gupta which is paper No. 6 A-2 .He certified the same as exhibit Ka 11.The site plan of the place where the dead body was found near Kali river was prepared by Satya Prakash Gupta, which is paper No. 6 A-1. He certified the same as exhibit Ka 13. He certified the same as exhibit Ka 13. He further deposed that the statement of Amir Singh the father of the deceased was recorded by him and he was mentally fit to give his statement. In the case diary the name of the person who had seen the dead body and informed the police has not been mentioned. He had categorically denied that the inquest of the dead body was not prepared on the spot but at the postmortem house, Mainpuri. 12. P.W. 9 Amir Singh, father of the deceased, has deposed that on 11.1.2011 i.e. date of incident he had gone to ‘Rue Mela’ to collect the money for she-buffalo sold by him. When he came back to his house at about 5 p.m. he was informed by his niece Prem Lata and Reena about the incident. Thereafter he alongwith his brother Shiv Nath and father Lala Ram went to search Ragini, the victim. In fact they made search throughout the night. On the next day i.e. 12.1.2011 they found the accused sitting at the road triangle. He tried to run away but was apprehended with the help of the villagers. He confessed his guilt and told that after committing rape of the deceased he strangulated her to death and had thrown the dead body into the Kali river. The accused Satish was handed over to the police by them. The statement of P.W. 9 Amir Singh was also recorded under Section 164 Cr.P.C. on 5.4.2011. The same was exhibited as Ka 12. 13. Besides the oral and documentary evidence,two documents i.e. chemical examination report of forensic laboratory, Agra dated 7.1.2012 and serological examination report dated 22.2.2011 are on record, which was produced by the prosecution. The chemical examination report dated 7.1.2012 of the forensic laboratory, Agra shows that the bundle contained clothes of the deceased, the material exhibits are (1) Jacket (2) Frock (3) Pajami and (4) one pair of Kara (Bangles). The report indicates that the blood was found on major portion of the material exhibits 1,2 and 3 i.e. Jacket, frock and pajami. The Serologist report dated 22.12.2011 shows that human blood was found on the material exhibits 2 and 3 i.e. frock and pajami of the victim. On the material exhibit-1 i.e. jacket, disintegrated blood was found. 14. The report indicates that the blood was found on major portion of the material exhibits 1,2 and 3 i.e. Jacket, frock and pajami. The Serologist report dated 22.12.2011 shows that human blood was found on the material exhibits 2 and 3 i.e. frock and pajami of the victim. On the material exhibit-1 i.e. jacket, disintegrated blood was found. 14. All the incriminating circumstances were put to the accused-appellant under Section 313 Cr.P.c. He denied every circumstance as false and had stated that he was falsely implicated due to village partibandi as he did not vote for Pradhan of the village. The informant and Pradhan were of the same cast. He also stated that the police had arrested him from his house and had falsely implicated him in the crime. No defence witness was examined. 15. Shri Ajay Kumar, learned counsel for the appellant submitted that prosecution had failed to prove its case beyond reasonable doubt that it was the appellant who had committed the offence of rape and murder of the deceased. In support of his submissions he pointed out that there is considerable delay in lodging of the First Information Report. The incident is of 11.1.2011 and First Information Report was lodged on 12.1.2011 of about 3.30 p.m. The undue delay in lodging the First Information Report shows that the implication of the appellant is an afterthought. There was manipulation in the prosecution story. He further submitted that the arrest of the accused is not clear and there is contradiction in the statements of the witnesses. The time of handing over the accused appellant is nowhere mentioned. The three witnesses P.W. 2, P.W. 3 and P.W. 4 who were the alleged witnesses of last seen are related and interested witnesses. The statements of two child witnesses namely P.W. 3 and P.W. 4 shows that they were tutored to depose against the appellant. Moreover there are material contradictions in their statements. 16. He also pointed out that the inquest was not prepared on the spot which is apparent from the statement of P.W. 1 in his cross examination. P.W. 1 in his cross examination stated that the inquest was prepared at the postmortem house where the dead body was brought in police jeep. 17. 16. He also pointed out that the inquest was not prepared on the spot which is apparent from the statement of P.W. 1 in his cross examination. P.W. 1 in his cross examination stated that the inquest was prepared at the postmortem house where the dead body was brought in police jeep. 17. He further pointed out that the discovery of the dead body was doubtful as there are contradictions in the statements of P.W. 1, P.W. 2 and P.W. 8. It was pointed out that P.W. 2 in his cross examination stated that the dead body could not be found by the divers, who were 8-9 in numbers and conducted extensive search for about 7-8 days. The divers came after 2-3 days of the incident when the body could not be found by the police . They searched for the body in an area of 2-3 Km. from the place where it was said to have been thrown. The body was found the next day after the divers returned back without any result. P.W. 2 stated that the information regarding the body flowing in the river was given by one boy named Balu. He informed that some people of Bura had taken out the body flowing in the river. The distance was about 1 Km. from his village . He further stated that the body was not in a state that it could be recognized. It was swollen and the skin was peeled off from different part of the body when it was found. The informant P.W. 1, Gabbar Singh Chavinath, Shyam Sundar, Maidan Singh, Buloak Singh and Sowvaran were present whereas P.W. 1 stated that he had recognized the dead body of the victim as soon as he reached there. He further stated that though it was submitted by all the witnesses that other villagers were present with them during search in the grove, while apprehending the accused and further at the time of recovery of the dead body near Kali river of Balipura, even the name of some independent witnesses appeared in the statement, yet, none of them was produced to support the prosecution story. 18. He further pointed out that there are material contradictions in the statement of P.W. 2 Lala Ram who was stated to be the witness of last seen and the two child witnesses P.W. 3 and P.W. 4. 18. He further pointed out that there are material contradictions in the statement of P.W. 2 Lala Ram who was stated to be the witness of last seen and the two child witnesses P.W. 3 and P.W. 4. P.W. 2 Lala Ram stated on oath that he was present when Satish reached the grove and gave money to his grand-daughter (deceased). After the victim went away inside the grove with Satish he went to another field to cut ‘Barseen’. After cutting ‘Barseen’ he straight away came back to the house. P.W. 3 Prem Lalta deposed that though Lala Ram accompanied them to the grove but he had gone to another field to cut ‘Barseen’ and thereafter went back home. She did suggest that when Satish came to the grove her grand father Lala Ram was not present with them. He further submitted that there is difference in the statements of P.W. 3 and P.W. 4. regarding clothes of the deceased. P.W. 3 stated that deceased was wearing black Jacket whereas P.W. 4 had stated that she was wearing half- sleeves red jacket. 19. Lastly he submitted that commission of rape was not established as there is no evidence of the same and there is no injury on the body of the deceased. Moreover P.W. 6 Dr. R.D. Yadav also stated that no opinion can be given of sexual intercourse. On the basis of all these submissions, he stated that there are material inconsistency, contradictions, omissions, which have seriously affected the prosecution version and important link in the chain of circumstances that it was the accused who had committed crime is missing. 20. Shri Akhilesh Singh learned Government Advocate appearing for the respondent-state submitted that the prosecution has succeeded in proving the guilt of the accused beyond doubt. He submitted that the witnesses P.W. 2, P.W. 3 and P.W. 4 are natural witnesses and there is no motive and enmity between the parties to falsely implicate the appellant. The suggestion of alleged enmity in 313 Cr.P.C. statement of the accused that the informant and Pradhan of the village had falsely implicated him with the help of the police as he did not vote in the election of Pradhan and was of the opposite camp is without any basis. The suggestion of alleged enmity in 313 Cr.P.C. statement of the accused that the informant and Pradhan of the village had falsely implicated him with the help of the police as he did not vote in the election of Pradhan and was of the opposite camp is without any basis. In fact from perusal of the statement of P.W. 1, informant and his entire cross examination it can be inferred that there was no enmity and further no reason to falsely implicate the appellant in the crime. 21. He further submits that when the appellant was caught by the villagers and witnesses and handed over to the police, a search was conducted by the police near the river Kali on the same day i.e. 12.1.2011. During the course of search of the dead body near river Kali, one blue plastic slipper of deceased was found near the river Kali. 22. Further recovery of the dead body after 8-9 days at about a distance of one and a half km. from the place where it was thrown by the appellant clearly suggest that the appellant after committing rape and murder of the deceased had thrown the body in the Kali river. He further pointed out that from the site plan exhibit Ka 11 it is evident that the distance where the appellant had thrown the dead body in the Kali river is only 20 paces from the place of incident i.e.(grove) where the rape and murder was committed. 23. He further submitted that as per report of the Forensic laboratory, human blood was found on the clothes of the deceased i.e. frock and pyjami. The blood was found disintegrated on the jacket of the deceased in the Serologist report. However, the chemical examination report dated 7.1.2012 indicates that the blood was found on the large portion of the clothes of the deceased i.e. jacket, frock and pyjami. The two eye-witnesses P.W. 3 and P.W. 4 Prem Lata and Reena had consistently deposed that the deceased was wearing frock, pyjami and jacket on the date of incident when they went to the grove. 24. The suggestion given by the counsel for the appellant that the dead body was not found from the place stated by the witnesses is without any basis. 24. The suggestion given by the counsel for the appellant that the dead body was not found from the place stated by the witnesses is without any basis. It is clear that P.W. 1 and P.W. 2 consistently stated that they got information about the recovery of the dead body near river Kali in Gram Balipura which is one and half km. from the place where it was thrown by the accused. The witnesses P.W. 1 and P.W. 2 were accompanied by other villagers. They have also disclosed the name of some villagers who had accompanied them including the names of Shyam Sunder, Maidan Singh and Amir Singh after they got information of the recovery of the dead body. The dead body was identified by P.W. 1 and then police was informed who reached on the spot. The inquest was prepared on the spot, which is evident from the inquest report as it bore the signature of Shiv Nath Singh(P.W. 1),Lala Ram (P.W. 2), Amir Singh (P.W. 9), Shyam Sunder and Maidan Singh. Thus the vague suggestion of the defence that the body found was not of the deceased is not worthy of acceptance. 25. Learned Government Advocate further pointed out that the conduct of the accused subsequent to the commission of the crime is very relevant under Section 8 of the Evidence Act. The appellant was apprehended by the informant and co-villagers when he was sitting on the road at the triangle. He confessed his guilt and told that when he tried to commit rape with the deceased, she started shouting and due to fear he strangulated her to death. He also showed the spot where the dead body was thrown by him after the murder. The informant and the villagers when failed to recover the dead body handed over the appellant to the police. The police soon thereafter took the accused to the place where he had stated to have thrown the dead body and conducted search. During search, a plastic blue slipper was recovered by the police near river Kali. The recovery memo of blue slipper has been signed by Lala Ram, Shyam Sundar, appellant Satish and the then investigating officer, Satya Prakash Gupta. During search, a plastic blue slipper was recovered by the police near river Kali. The recovery memo of blue slipper has been signed by Lala Ram, Shyam Sundar, appellant Satish and the then investigating officer, Satya Prakash Gupta. Thus on the basis of these facts, the recovery of slipper near Kali river followed by the recovery of dead body after nine days near the same river on the information furnished by the accused appellant is conclusive proof of his complicity in the crime. 26. He further submits that in the present case medical evidence fully supported the case of the prosecution. The injuries found on the dead body of the deceased clearly established the commission of rape and murder of the deceased. The minor contradictions suggested in the opinion of the doctor regarding condition of the dead body are not sufficient to conclude that the prosecution has failed to prove the guilt of the accused beyond doubt. 27. This is a case of gruesome rape and murder of a minor girl in a planned and diabolic manner. The accused being resident of same village was well aware of the presence of the deceased in the grove and there was no occasion or reason for him to reach the grove when three minor girls were there with their old grand father. The manner in which the accused lured the deceased to accompany him inside the grove also indicates that his intention was to commit the crime. 28. On the question of sentence learned Government Advocate submits that testing the gravity of the offence for providing punishment to the appellant, it is relevant to note that appellant had committed rape and murder of the minor girl in a most diabolic manner. He after having committed the crime threw the dead body in the river so as to conceal the evidence against him. On the basis of the evidence on record it is clear that there was neither any provocation nor instigation as well as there was no sudden and immediate extreme mental or emotional disturbance which could be said to be cause for the commission of rape and murder of an innocent girl of nine years in age. The Act of appellant comes within the purview of “rarest of the rare case” and as such the death reference deserves to be accepted by this Court. The Act of appellant comes within the purview of “rarest of the rare case” and as such the death reference deserves to be accepted by this Court. We have considered the rival submissions of both the counsel for the parties and carefully perused the entire record. Delay in First Information Report 29. As far as the first submission of the learned counsel for the appellant that there was delay in lodging the First Information report, it is relevant to note that the fact of absence of the deceased at the house came to the knowledge of the informant and other family members in the evening of 11.1.2011 when the informant came back from the market. When he inquired from the P.W. 3 and P.W. 4, the cousins of the deceased who had accompanied her, they told the entire story and the fact that the appellant-accused Satish came to the grove at around 4.45 p.m. and took the deceased with him on the pretext of having guavas after giving some money to her. The family members of P.W. 1 and P.W. 2 alongwith other villagers conducted extensive search inside the grove and nearby fields. It has come up in the statement of P.W. 2 Lala Ram, grand father of the deceased that they had searched for the deceased the whole night . On the next day they came to know about the presence of accused Satish near the road triangle. They alongwith villagers apprehended him. He then disclosed the manner in which he had committed the crime. He also took the witnesses P.W. 1, P.W. 2 and the villagers, who caught him, to the place near Kali river where he had thrown the dead body of the deceased. The dead body was not found by them then the informant handed over accused Satish to the police and lodged First Information Report about the incident. 30. From the facts stated above it is apparent that the First Information Report was lodged by the P.W. 1 only after he and his family members had failed in search of the deceased. In the meantime they apprehended the appellant and upon enquiring from him they tried to search the dead body. Having failed in their attempt to get the dead body, the informant with villagers went to the police station and handed over the appellant to the police. In the meantime they apprehended the appellant and upon enquiring from him they tried to search the dead body. Having failed in their attempt to get the dead body, the informant with villagers went to the police station and handed over the appellant to the police. The First Information Report was then lodged by the informant, uncle of the deceased. 31. A perusal of the First Information Report indicates that these facts have been duly narrated and incorporated in the same. We upon perusal of the said facts find that there is nothing unnatural in the conduct of the informant to search for his niece alongwith other villagers when he did not find her in the house. More so when they apprehended the appellant who confessed his crime and also took him to the place where the dead body was thrown, their first reaction required was to search the dead body and when they failed, they took the appellant to the police station. The investigating officer alongwith police personnel, accused and the informant went to the spot where the dead body was said to have been thrown by the appellant on the same day. While searching the dead body, blue plastic slipper of the deceased was found lying near river Kali. The recovery memo of same was prepared. Thus from the facts and circumstances mentioned above, it cannot be accepted that the First Information Report is ante-timed or there is undue delay in lodging of the First Information Report. It may be considered that different people react in different manner in a given fact and situation. The fact that the informant did not reach the police station immediately rather searched for his niece (deceased) shows that firstly he tried to find out the truth and could not have imagined that she could have been raped and murdered by the appellant Satish. Further noticeable fact in the present case is that the First Information Report was lodged only on 12.1.2012 i.e. next day after accused Satish was caught by them and he confessed his guilt, the informant and his family members took him to the police station though the fact that Satish took the deceased alongwith him in the grove was told to them by P.W. 3 Prem Lata and P.W. 4 Reena, the girls who had accompanied deceased on the date of incident. This fact further shows the natural behaviour of a family and further the faith and belief of the simple villagers that they could not imagine that the appellant could have committed such a crime despite being told by the child witnesses. They kept the search on throughout the night and did not rush to the police station immediately to implicate Satish without knowing the correct facts on their own. On the next day when appellant was caught they came to know the entire story and then they continued to search the dead body for some time. Having failed, they took Satish to the police station and then lodged First Information Report against him implicating in the crime committed by him. Viewed from this angle we are of the considered opinion that there is no delay in lodging the First Information Report and the suggestion of the defence that the appellant was falsely implicated on account of enmity does not stand to reason. Arrest of the accused 32. The submission of the learned counsel for the appellant that the arrest of the accused by the informant and villagers was not proved as the time of the arrest was not mentioned in their statements. The said defence is not acceptable at all in view of the categorical statement of P.W 5 Jaiveer Singh who has proved the chik F.I.R..In his cross examination P.W. 5 who was posted as constable clerk at the police station Bichava on 12. 1.2011 had made a categorical statment that the informant came to the police station at 3.30. p.m. on 12.1.2011. He had proved the chik F.I.R. and”Taharir’ paper Nos. 4 A/1 and 4A/2 which have been written by him. In his examination in chief after looking to the paper Nos. 4-A/1 and 4-A/2 he deposed that those papers were in his own handwriting and bore his signatures . In his cross examination he also stated that Satish was brought to the police station by the informant. P.W. 5 being police officer, there is no reason to disbelieve his statement, more so in absence of any other circumstance to dislodge his submission. Recovery of the dead body 33. In his cross examination he also stated that Satish was brought to the police station by the informant. P.W. 5 being police officer, there is no reason to disbelieve his statement, more so in absence of any other circumstance to dislodge his submission. Recovery of the dead body 33. In so far as the recovery of dead body near river Kali after nine days of the incident is concerned, the same cannot be said to be doubtful in view of more than one circumstance of recovery of the same. The first circumstance is that the dead body was recovered near river bridge Bhanau about one and a half Km. away from the place of occurrence of the incident. P.W. 1 in his cross examination had stated that the dead body was recovered from a place which is about a distance of one km. from the Bhanau Bridge. P.W. 2 Lala Ram aged about 66 years( at the time of recording of the statement) deposed that the dead body was recovered from the river bridge of Kali river. In his cross examination he stated that the dead body was recovered near the field of Munshi Lal. The information regarding dead body lying near river Kali was given by one boy named Balu. He accompanied by the informant and Amir Singh alongwith villagers went to the place where the dead body recovered. A perusal of the site plan exhibits Ka 11 and Ka 13 show that the place from where blue slipper was recovered after some time of the arrest of the appellant accused was at a distance of 20 paces. The statements of P.W. 1 and P.W. 2 are thus fortified from the site plan prepared by the then investigating officer, Staya Prakash Gupta. 34. A perusal of the exhibit Ka 13, site plan prepared for the place of recovery of the dead body shows that the dead body was found at a place which is about a distance of one Km. from the Bhanau bridge shown in the site plan. A careful perusal of the exhibit Ka 13 further shows that the field of Munshi Lal is near the place (A) from where the dead body was found. The site plan was prepared by the earlier investigating officer much prior to recording of the statements of P.W. 1 and P.W. 2 and their cross examination. 35. A careful perusal of the exhibit Ka 13 further shows that the field of Munshi Lal is near the place (A) from where the dead body was found. The site plan was prepared by the earlier investigating officer much prior to recording of the statements of P.W. 1 and P.W. 2 and their cross examination. 35. Moreover the appellant himself shown the place where he had thrown the dead body in the Kali river and it has come up in the evidence that river Kali was flowing and the dead body was found one and a half Km. from the place of occurrence of the incident at a place in the mud in the river Kali. P.W. 2 in his cross examination stated that the boy Balu who gave information about the dead body also told that the body was flowing in the river and was taken out by some people of (Bura). Thus we conclude that there is no inconsistency or dispute with regard to recovery of the dead body from the place as stated by the informant and the police. 36. During the course of arguments learned counsel for the appellant laid much stress on the statement of P.W. 2 that the police made all efforts to search the dead body and 8-9 divers were also involved in this operation. They had searched for the dead body near about an area of 2 to 3 Km. of the alleged place of occurrence of incident. They could not find it in the river and the alleged recovery was made just one day after the divers had left with no result. Therefore, the recovery of the dead body from the river Kali is highly doubtful and the prosecution has failed to prove the same by cogent evidence. 37. This contention of the learned counsel for the appellant is without any basis. There is no dispute about the fact that it was flowing river and it was a winter month. No definite opinion can be formed as to about what period the dead body remained submerged in the river and when it came to the surface. There is nothing unnatural that the dead body of the victim had come on the surface and the divers could not have found it submerged in the river. No definite opinion can be formed as to about what period the dead body remained submerged in the river and when it came to the surface. There is nothing unnatural that the dead body of the victim had come on the surface and the divers could not have found it submerged in the river. It is also a matter of common sense that nobody can form a definite opinion as to the course or direction a river would adopt. However there is no dispute about the fact that the dead body was found at a place which was in the direction of the current of the river and at some distance from the place shown by the accused where it was thrown. Thus, there is nothing unnatural in the recovery of the dead body from the place near Bhanau river bridge. The contention of the counsel for the appellant-accused assailing the fact of recovery of the dead body is, therefore, not worthy of acceptance. Identification of the dead body 38. Dealing with the defence version that the dead body was not identifiable and from the evidence on record it cannot be said that the dead body recovered near Kali river was that of deceased. It is relevant to note that P.W. 1 had deposed that he had identified the dead body when it was recovered . Dr. R.D. Yadav, P.W. 6, who conducted the postmortem, described the condition of the dead body received by him on 19.1.2011. He deposed that the dead body was of average built and it was wet and mud stained. Both the eyes were closed. Mouth was half open, sub-conjunctival haemorrhage was present in both the eyes. Altered blood was oozing out from the nostrils. There was swelling in the external vaginal organ on account of injury. It was covered with clothes. One jacket, frock, underwear, pyjami and two plastic bangles were found from the dead body of the deceased. All these items were wet and mud stained. In his cross examination he stated that the skin had peeled off from different places. It was not stinking. There was no mark of animal bite on the dead body. When specific question was put to him as to whether the eyes, nose, ears of the deceased were clearly visible or not. All these items were wet and mud stained. In his cross examination he stated that the skin had peeled off from different places. It was not stinking. There was no mark of animal bite on the dead body. When specific question was put to him as to whether the eyes, nose, ears of the deceased were clearly visible or not. His categorical reply was that the eyes, nose and ears of the dead body were clear and visible. 39. P.W. 7 S.I. Jagdish Prasad Verma who prepared the inquest and proved the same categorically stated that the dead body was identified by the uncle of the deceased i.e. P.W. 1. In his chief and also in his cross examination he stated that the dead body was swollen and blood was oozing out from the nostrils. He categorically stated that the face of the dead body was identifiable and it is false to say that the body could not have been recognised as it was swollen. He further stated that it is correct that skin had peeled off from different parts of dead body. The only witness i.e. P.W. 2, grandfather of the deceased stated that the dead body was swollen and was not identified by him. Moreover this witness was of 66 years of age being grand father of the deceased, it is possible that he might not have recognised the dead body. All other witnesses specially the doctor who received the dead body for postmortem categorically stated that the face of the dead body was clearly visible though it was swollen. More over the age of the dead body and description of the clothes which the deceased was wearing on the date of incident exactly correspond with the age of the deceased and description given the witnesses. In view of the above fact it is clearly established that the dead body found near the Kali river was that of the deceased. Evidence of last seen 40. Further contention of the learned counsel for the appellant is that the evidences of witnesses of last seen i.e. P.W. 2, P.W. 3 and P.W. 4 are not reliable so as to inculpate the appellant-accused. He pointed out the discrepancies in the statements of P.W. 2, P.W. 3 and P.W. 4 who had last seen the deceased with accused Satish. Further contention of the learned counsel for the appellant is that the evidences of witnesses of last seen i.e. P.W. 2, P.W. 3 and P.W. 4 are not reliable so as to inculpate the appellant-accused. He pointed out the discrepancies in the statements of P.W. 2, P.W. 3 and P.W. 4 who had last seen the deceased with accused Satish. P.W. 2 stated on oath that he alongwith the deceased, Prem Lata(P.W. 3) and Reena (P.W. 4) were at grove for watching the same. Satish, accused came to the grove gave some money to the deceased for guavas and took her away with him inside the grove, thereafter, he went to another field to cut “Barseen”. He had returned back to home after cutting “Barseen”. When his son Shiv Nath Singh (informant) came to the house at about 5.p.m. and inquired about the deceased, Prem Lata and Reena told that Satish came to the grove and deceased accompanied him inside the grove and did not return back. 41. P.W. 3 Prem Lata aged about nine years deposed that when she alongwith the victim, Reena and her grand father Lala Ram (P.W. 2) came to the grove, her grandfather Lala Ram went to cut “Barseen” in another field and thereafter returned to the house. Satish came to grove at about 4 p.m.. In her examination- in chief she stated that his grand father Lala Ram went back home after cutting “Barseen”. Whereas in her cross examination, she stated that his grandfather was cutting “Barseen” at the time of occurrence of the incident . After cutting “Barseen” her grandfather did not return to the grove but went back to the house. But further in her cross examination she had categorically stated that no other person except Satish came to the grove after they reached there on the date of the incident. 42. P.W. 4 Km. Reena aged about 10 years also deposed that Satish came to the grove, gave money to the deceased and took her inside the grove. However with regard to the presence of her grandfather Lala Ram (P.W. 2) she also stated that he was not there rather she stated in her cross examination that when she and her sister Prem Lata witnessed the incident and were threatened by the accused Satish, they came to the hut inside the grove and told her grandfather about the same. She categorically denied that any unknown person took away the deceased with him. On the basis of these discrepancies about presence of Lala Ram(P.W. 2) and about presence of Satish at the grove at about 4 p.m., defence submits that in fact no one had seen Satish inside the grove and crime was committed by some unidentified person. 43. From a perusal, scrutiny and minutely going through the evidence of these three witnesses, we find that they had proved the presence of accused Satish in the grove at about 4 p.m. and the fact that deceased went away with him inside the grove.The fortified reason behind it is at least two witnesses namely P.W. 3 and P.W. 4 had proved the presence of accused Satish in the grove at about 4 p.m. 44. So far as the testimony of P.W. 2 Lala Ram he also stated in his examination in chief that Satish came to the grove and after the deceased left with Satish he went to cut “Barseen” in another field. The two minor girls P.W. 3 and P.W. 4 also stated that their grandfather was cutting “Barseen” at the time of incident. However, in their cross examination they could not specifically state that whether P.W. 2 had last seen Satish in the grove. While critically examining the depositions of three witnesses, it is relevant to note that these three witnesses of last seen are one old person and two minor girls and all are rustic villagers. 45. P.W. 3 was subjected to lengthy cross examination over a long period of time on two dates with the gap of about one month. Her chief and first cross examinations were recorded on 19.1.2013 and second cross was recorded on oath on 15.2.2013 . 46. P.W. 2 aged about 66 years was examined on 7.8.2012 and again on fresh oath on 7.9.2012. It may be noted in his chief that he had stated that Satish came to the grove and gave some money to deceased to get some guavas. Both Satish and deceased went inside the grove and then he went to another field to cut ‘Barseen’. After cutting ‘Barseen’ he came back to the house. 47. It may be noted in his chief that he had stated that Satish came to the grove and gave some money to deceased to get some guavas. Both Satish and deceased went inside the grove and then he went to another field to cut ‘Barseen’. After cutting ‘Barseen’ he came back to the house. 47. From his cross examination it appears that no specific suggestion was made to him that as to whether he was present in the grove when Satish reached there at about 4 p.m. It appears that the suggestion given by the defence was that he did not go to grove on the said day and was very much present in the house to which he had categorically denied. In his cross examination he has categorically stated that he had cut ‘Barseen’ for his four cattle and reached the house before dawn and fed his animals. 48. So far as P.W. 4 is concerned, she was examined on 12.3.2013. The Apex Court in case of Jaishree Yadav v. State of U.P., (2005) 9 SCC, 788 in paragraph 22 has observed that when witnesses were subjected to lengthy cross examination over a long period of time, in such type of cross examination some improvements, contradictions and omissions are bound to occur which if not found fatal to the evidence given in the examination- in -chief would not in any manner affect the evidentiary value of the statement of the witnesses given by them in the examination- in- chief. 49. In Appa Bahi and another v. State of Gujrat, 1988 (supply) SCC 241 it was held that minor discrepancies in the testimony of the witnesses should not be given undue importance. Viewed from the legal position as laid down by the Apex Court we do not find that the discrepancies in the statements of two child witnesses and one old man (grand father of the deceased) are of such nature so as to discard their categorical version that Satish reached the grove on the date of incident and deceased went with him inside the grove to give some guavas. Child witnesses-reliability of their testimony 50. The submission of the learned counsel for the appellant that P.W. 3 and P.W. 4 were child witnesses and their testimony has to be carefully examined by the Court while coming to the conclusion that the same is reliable and truthful. Child witnesses-reliability of their testimony 50. The submission of the learned counsel for the appellant that P.W. 3 and P.W. 4 were child witnesses and their testimony has to be carefully examined by the Court while coming to the conclusion that the same is reliable and truthful. While discussing the law in this regard the Apex Court in Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451 , has observed in paragraph 36 which is as follows : “36 It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The Court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (Dattu Ramrao Sakhare v. State of Maharashtra and Panchhi v. State of U.P.).” 51. In case of Rameshbhai Chandubahi Rathod v. State of Gujarat, (2009) 5 SCC 740 , while discussing last seen aspect in the case, Apex Court has observed that P.W. 7 was a child witness nevertheless the Court has taken care of analysing his evidence after being satisfied that child was speaking the truth. 52. In the case of Dinesh Prajapati v. State of Madhya Pradesh, (2011) 14 SCC 268 the Apex Court has observed in paragraph 10 that from the testimony of child aged about 14 years son of the deceased and statement of another witnesses, prosecution story stood fully corroborated. 52. In the case of Dinesh Prajapati v. State of Madhya Pradesh, (2011) 14 SCC 268 the Apex Court has observed in paragraph 10 that from the testimony of child aged about 14 years son of the deceased and statement of another witnesses, prosecution story stood fully corroborated. It was held that child witness was capable of understanding and was in a position to depose before the Court. 53. It has been held in K. Venkateshwarlu v. State of Andhra Pradesh, (2012) 8 SCC 73 in paragraph 9 that careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the Court decides to rely upon it. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the Court comes to conclusion that the child understands the questions put to him and he is capable of giving rational answers. 54. So far as the contention of the learned counsel for the defence that these two child witnesses P.W. 3 and P.W. 4 were tutored witnesses on the ground that in their cross-examination there were some contradictions and improvements. He pointed out that the contradictions are apparent from the statements of P.W. 3 and P.W. 4. They had deposed that they heard the cries of the deceased and went inside the grove. They found deceased naked and Satish lying over her. They were threatened by the accused Satish and returned back home. P.W. 3 Premlata stated that she told the entire story to her grandfather Lala Ram and her mother. P.W. 4 stated that she had told the fact to Lala Ram (her Nana) and the informant (her mama). 55. We find it impossible to accept the contention of the defence that the testimony of these two witnesses be discarded, on the ground of discrepancies mentioned above. We are concious of the fact that these two witnesses were girls of tender age. They were in the grove and might have seen the incident. But their statements are not going to affect their testimony in chief .The categorical stand taken by both the girls in their chief and cross-examination is that only Satish came to the grove on the date of incident when they were alongwith the deceased watching the grove and no other person was there. But their statements are not going to affect their testimony in chief .The categorical stand taken by both the girls in their chief and cross-examination is that only Satish came to the grove on the date of incident when they were alongwith the deceased watching the grove and no other person was there. In fact, such slight discrepancies as pointed out in the statement, which is not uncommon even in the testimony of most truthful witnesses, proved that they were not tutored witnesses rather their statement was spontaneous. 56. Moreover, it is apparent from the record that trial judge had taken care to satisfy itself before examination of the P.W. 3 and P.W. 4 and asked few questions by way of preliminary examination. After finding that they were able to give answer to the basic questions put to them and satisfying himself that they were capable of understanding and they were in the position to depose and proceeded to record their statements. 57. Further it may be noted that the statements of these two child witnesses namely P.W. 3 and P.W. 4 are corroborated from the arrest of the accused on the next day of the incident and his confession of having committed the crime before the villagers. Further the accused disclosed the information to the police that he had thrown the dead body in the river Kali at a place near the grove i.e. (place of occurrence of the incident).This disclosure information given by the accused followed by recovery of blue plastic slippers of the deceased near Kali river fully corroborated the testimony of the P.W. 3 and P.W. 4 Prem Lata and Reena. From the facts and discussions made above, we are fully satisfied that the testimony of both P.W. 3 and P.W. 4 in the instant case is most natural and truthful. Recovery of blue slipper, Exhibit Ka-12 58. So far as the recovery of blue slipper (paper exhibit Ka-12 )near the river Kali on the information furnished by him is concerned a specific question was put to the appellant- accused in his statement under Section 313 Cr.P.C. which is question No. 6. His answer to this question is “Mujhe nahi malum” ( I do not know). To all other questions putting all the incriminating circumstances associated with him, his simple denial was “galat hai” (wrong). His answer to this question is “Mujhe nahi malum” ( I do not know). To all other questions putting all the incriminating circumstances associated with him, his simple denial was “galat hai” (wrong). Lastly he said that he was falsely implicated on account of enmity. The enmity was described by him in the statement that he did not vote for Pradhan in the election and the informant and Pradhan being of same caste falsely implicated him in the crime and he was arrested from his house. 59. In the case of Manu Sao v. State of Bihar, (2010) 12 SCC 310 , the Apex Court in paragraphs 11 and 14 observed as follows : “11. It is of similar significance for the Court to examine whether the requirements to be established in a case of circumstantial evidence are satisfied in the case before it or not. The cases of circumstantial evidence have to be dealt with greater care and by microscopic examination of the documentary and oral evidence on record. It is then alone that the Court will be in a position to arrive at a conclusion upon proper analysis of the evidence in relation to the ingredients of an offence. In the case of circumstantial evidence, particularly, besides the entire case of the prosecution,even the statement of the accused made under Section 313 of Cr.P.C. can be of substantial help.” “14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.” 60. In Rafiq Ahmad Alias Rafi v. State of U.P., (2011) 8 SCC 300 . In paragraph 67 it was observed that : “It is true that the statement under Section 313 CrPc. cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events...........................” 61. The Apex Court in Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 . In paragraph-50 it was observed that : “It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, to decide as to whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748 . (See also: The Transport Commissioner, A.P., Hyderabad and another v. S. Sardar Ali and others, AIR 1983 SC 1225 ).” As noticed from the above answer, it is clear that the appellant does not categorically denied the recovery of blue slipper at his instance at the distance of few paces from the place of occurrence of the incident rather he said that he was not aware of the fact of recovery. Description of clothes-Inconsistency in the statements of P.W. 3 and P.W. 4 62. Regarding the inconsistency pointed out in the description of clothes by two witnesses P.W. 3 and P.W. 4 by the defence, suffice it is to say that the only difference was with regard to colour of jacket worn by the deceased on the date of incident. The said discrepancy is negligible in view of the description of clothes given by the doctor on the dead body. The said discrepancy is negligible in view of the description of clothes given by the doctor on the dead body. It is evident that the jacket was found on the body of the deceased when it was recovered and it was sent for forensic examination. In view of the said fact and all other facts discussed above the said argument is wholly misconceived and is discarded as such. Extra Judicial Confession : 63. In so far as the Extra Judicial Confession made by the accused prior to his arrest or handing over to the police is concerned, it is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. 64. The Apex Court in State of A.P. v. Kanda Gopaludu, (2005) 13 SCC 116 , relying upon earlier judgments in Guru Singh v. State of Rajasthan, (2001) 2 SCC 205 ; Rao Shir Bahadur Singh v. State of U.P., AIR 1954 SCC 322; Maghar Singh v. State of Punjab, (1975) 4 SCC 234 held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. 65. In Kishore Chand v. State of H.P., (1991) 1 SCC 286 considered in Kanda Gopaludu (supra) the Apex Court has held that the Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making in, the circumstances in which it was made have to be scrutinised. Thus it is now established principle of law that extra judicial confession is admissible if it inspired confidence and is made voluntarily. 66. All relevant circumstances such as the person to whom the confession is made, the time and place of making in, the circumstances in which it was made have to be scrutinised. Thus it is now established principle of law that extra judicial confession is admissible if it inspired confidence and is made voluntarily. 66. In the instant case, the extra judicial confession made by the appellant has been sought to be proved by the testimony of P.W. 1 and P.W. 2. As noticed earlier, the confession has been made instantaneously, immediately after the appellant was apprehended by the two witnesses alongwith villagers at the road triangle. He also led them to the place where he had thrown the dead body after murdering the deceased. There is no suggestion which could tend to show that their evidence is tainted and that the extra judicial confession was not voluntarily made by the appellant. 67. Moreover, the extra judicial confession made by the appellant in front of P.W. 1 and P.W. 2 is corroborated by the recovery of blue slipper near river Kali from the place shown by him after he was handed over to the police. Soon after his arrest and First Information Report was lodged against him, the appellant led the police party accompanied by the witnesses P.W. 1, P.W. 2 and villagers to the river Kali where he had thrown the dead body in the river. Blue slipper of the deceased was found from the said place and thereafter dead body was also found from the river Kali after nine days at a distance of about one and a half km. from the said place. 68. Thus from the above discussion, we find that the extra judicial confession of the appellant after he was apprehended by the witnesses and the villagers and before he was handed over to the police is not tainted. The same inspires confidence of the Court being voluntary without any threat or coercion. It was spontaneous and further corroborated by recovery of the blue slipper and the dead body of the deceased. We hold that the extra judicial confession made by the accused is admissible piece of evidence in the facts and circumstances of the instant case and is an additional link in the chain of circumstances for proving the prosecution case. Recovery under Section 27 of Evidence Act 69. We hold that the extra judicial confession made by the accused is admissible piece of evidence in the facts and circumstances of the instant case and is an additional link in the chain of circumstances for proving the prosecution case. Recovery under Section 27 of Evidence Act 69. After the accused appellant was handed over to the police, on the same day, blue slipper of the deceased was recovered from the place disclosed by him. In the recovery memo, exhibit Ka-12 apart from the signature of the accused, signatures of Lala Ram and one villager Shyam Sundar as witness was taken by the then Investigating Officer Satya Prakash Gupta and later on, dead body was also recovered at a distance of about one and a half km. from the place where it was thrown by the accused. In view thereof, Section 27 of the Evidence Act will be attracted. Section 27 of the Evidence Act is as follows : “How much of information received from accused may be proved. 27. 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.” 70. The Apex Court in Musheer Khan alias Badshah Khan and another v. State of Madhya Pradesh, (2010) 2 SCC 748 , considered the limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence Act by an illustration in Paragraph 57 which is quoted below : “Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused.” 71. In paragraph -56 the Court has considered the Privy Council in Pulukuri Kotayya v. King Emperor wherein it was held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding Sections. In paragraph -56 the Court has considered the Privy Council in Pulukuri Kotayya v. King Emperor wherein it was held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding Sections. However, the extent of discovery admissible pursuant to the facts deposed by the accused depends only on the nature of the facts discovered to which the information precisely relates. 72. From the above illustration it is clear that from mere discovery of an article (weapon in that case) no inference can be drawn against the accused, if there is no evidence connecting the said weapon with the crime alleged to have been committed by him. The Court has to see as to whether the facts disclosed under Section 27 of the Evidence Act are voluntary or not, if not then it will not be admissible and will be hit by Article 20 (3) of the Constitution of India. 73. In the instant case it is found that the plastic blue slipper is the discovery on the facts disclosed by the accused that he had murdered the deceased and had thrown her dead body in the river Kali. As discussed above, place shown by the appellant where he had thrown the dead body into river Kali is 20 paces from the place of occurrence of the incident i.e. grove. Thus the genuineness of discovery on the disclosure statement of the accused cannot be doubted. 74. Moreover the recovery of blue plastic slipper is connected with further recovery of the dead body from the river Kali after nine days at the distance of about one and a half Km. As discussed above the dead body was found near the river bridge Bhanau at a distance of one and half km. from the place where it was thrown by the accused. Thus, it can be safely concluded that the recovery of blue slippers of the deceased in consequence of information received from the accused in the custody of the police is a recovery under Section 27 of the Evidence Act as it relates to the facts thereby discovered and proved. The said fact coupled with all the facts and circumstances discussed above proved that the appellant accused is author of the crime. Commission of rape by the accused. 75. The said fact coupled with all the facts and circumstances discussed above proved that the appellant accused is author of the crime. Commission of rape by the accused. 75. Now the only fact which remains to be examined is that as to whether the accused Satish had committed rape of the victim or not. In this regard the trial Court had discussed material evidence on record which are material exhibits 1,2 and 3 i.e. jacket, frock and pyjami worn by the deceased. In the Forensic Laboratory report it was opined that in large portion of these material exhibits blood was found. As per Serologist report human blood was found on frock, and pyjami whereas on the material exhibit 1, i.e. Jacket, blood was found disintegrated. Further the postmortem report says that there was blueish mark all around the opening of vagina. Perineum and hymen were torn and altered blood was oozing out of vagina. The swelling was due to injury. In the pathological report though no spermatozoa was found yet there were presence of excess red blood cells. The expert witness i.e. doctor in his statement affirmed the said facts. In so far as absence of spermatozoa in the vaginal smear is concerned, the doctor stated that same can be found for 4-5 days in the dead body and in a live body it remains alive for a maximum period of 24 hours. 76. In the present case, the body was found nine days after the date of incident. The body remained in water for about 8 days. The doctor in his cross had stated that on the basis of changes found on the body and the temperature of the atmosphere, death might have occurred 8 days prior to the incident. He also explained that after death, blood oozing out of the body was described as altered blood. In the description of injury No. 4 it has been mentioned that altered blood was oozing out of the vagina. The death has been caused due to asphyxia on account of antemortem throttling. Moreover expert witness doctor (P.W. 6) in his statement had categorically deposed that there was no mark of animal bite on the dead body. In the description of injury No. 4 it has been mentioned that altered blood was oozing out of the vagina. The death has been caused due to asphyxia on account of antemortem throttling. Moreover expert witness doctor (P.W. 6) in his statement had categorically deposed that there was no mark of animal bite on the dead body. Thus the injury No. 4, the pathological report of vagina smear and the reports of Forensic Laboratory, Agra wherein it was confirmed that there was presence of human blood over the frock and pyjami of the deceased and further fact that the altered blood was oozing out of the vagina and the presence of excess red blood cells in the vaginal smear clearly suggest that the prosecution version about the commission of rape by the accused Satish is proved beyond reasonable doubt. At this juncture, in view of the above facts, we want to believe the version of two child witnesses, namely, P.W. 3 and P.W. 4 that they had seen the incident of commission of rape by the accused-appellant. However we restrain ourselves from forming an opinion on the basis of their statements with regard to commission of rape of the deceased by accused Satish. Examination of independent witness 77. Now coming to the last submission of the learned counsel for the appellant that no independent witness was produced and examined by the prosecution. It is trite law that in case the evidences of witnesses P.W. 1, P.W. 2 and P.W. 3 though related to the victim is reliable and truthful so as to complete the chain of circumstances to connect the accused with the crime, mere non production of independent witness would not have dislodged the prosecution case. This apart in the instant case only two circumstances could have been narrated and established by an independent witness, namely villagers. These are (i) arrest of the accused by them alongwith the family members(ii) the recovery of the dead body from the river Kali. These two circumstances have been established from the evidence of recovery placed by the prosecution. We,therefore, do not find any substance in the defence taken by the counsel for the appellant. Conclusion 78. The circumstances to inculpate the appellant accused analysed in detail by us unerringly point at the accused to be the author of the crime. These two circumstances have been established from the evidence of recovery placed by the prosecution. We,therefore, do not find any substance in the defence taken by the counsel for the appellant. Conclusion 78. The circumstances to inculpate the appellant accused analysed in detail by us unerringly point at the accused to be the author of the crime. So far as the last seen aspect is concerned P.W. 2, P.W. 3 and P.W. 4 had categorically stated that the deceased was seen in the company of the accused just before they left the place and thereafter deceased was never seen alive. Additionally it is clear from the evidence of the witnesses that the first confession (extra judicial confession) was not made by the accused in the presence of the police. Before he was handed over to the police he had confessed and showed the place where he had thrown the dead body and blue plastic slipper of deceased was found at his instance after he was handed over to the police and the police went for search of the dead body soon after his arrest alongwith the informant and villagers. Thereafter the dead body was recovered after nine days at a distance of about one and a half km. from the place shown by accused near Kali river. Though P.W. 3 and P.W. 4 are child witnesses nevertheless the trial Court had taken care of analysing their evidence after being satisfied that they were in a position to give correct answer by asking few question by way of preliminary examination. The trial judge after finding that these witnesses could answer the questions had proceeded to record their statements. The statements of these child witnesses are clear and understandable. They categorically stated in their examination in chief and further in their cross examination that apart from Satish no other person came to the grove and the deceased went with Satish and did not return back. The medical evidence clearly indicates that the cause of death was Asphyxia due to strangulation and there is clear evidence of rape committed by the accused with the deceased before her murder. After having extensively, critically and minutely gone through the evidence adduced in this case, we have no doubt in our mind that it was the accused who had committed the crime. After having extensively, critically and minutely gone through the evidence adduced in this case, we have no doubt in our mind that it was the accused who had committed the crime. The standard of proof required to convict a person on the circumstance is well established by a series of judgments of the Apex Court. The circumstances relied upon in support of conviction must be fully established and the chain of evidence furnished by those circumstances must be complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. We fully concur with the judgment of the Sessions Court which has correctly appreciated the evidence and document adduced in this case and found that the guilt of the accused is proved beyond doubt. Sentence 79. Now on the question of sentence it remains to be decided as to whether this case falls in the category of rarest of the rare cases, justifying capital punishment. In the case of Shankar Kisan Rao Khade v. State of Maharashtra, (2013) 5 SCC 546 , the Apex Court has considered its earlier judgments and observed that after striking the balance between aggravating and mitigating circumstances and other factors like the young age of the accused, possibility of reformation, lack of intention to murder consequence to rape etc. have gone into the judicial mind for converting the death penalty to that of imprisonment for life. In paragraph 106 of the said judgment, the Apex Court observed that-: “A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. have gone into the judicial mind for converting the death penalty to that of imprisonment for life. In paragraph 106 of the said judgment, the Apex Court observed that-: “A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include: (1) the young age of the accused (Amit v. State of Maharashtra aged 20 years, Rahul aged 24 years, Santosh Kumar Singh aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit v. State of Uttar Pradesh aged 28 years); (2) the possibility of reforming and rehabilitating the accused ( in Santosh Kumar Singh and Amit v. State of U.P. the accused, incidentally, were young when they committed the crime); (3) the accused had no prior criminal record (Nirmal Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.); (4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.); (5) a few other reasons need to be mentioned such as the accused having been acquitted by one the Courts (State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and Santosh Kumar Singh); (6) the crime was not premeditated (Kumudi Lal, Akhtar, Raju and Amrit Singh); (7) the case was one of circumstantial evidence (Mansingh and Bishnu Prasad Sinha). In one case, commutation was ordered since there was apparently no “exceptional” feature warranting a death penalty (Kumudi Lal) and in another case because the Trial Court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput)." In paragraph 142 it has been observed that the decisions of the Apex Court clearly suggest that the Apex Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying the formula laid down in Bachan Singh v. State of Punjab, 1980 (2) SCC 684 . 80. In Bantu v. State of M.P., 2001(9) SCC 615 the Apex Court commuted death sentence awarded to that to the accused to that of imprisonment for life. 80. In Bantu v. State of M.P., 2001(9) SCC 615 the Apex Court commuted death sentence awarded to that to the accused to that of imprisonment for life. The accused was 22 year old man who had committed rape and murder of six years old child. It was acknowledged that the rape and murder was heinous but the Apex Court took into account that the accused had no previous criminal record and that he would not be a grave danger to society at large. On this basis, the death penalty was converted to life imprisonment. In Amit v. State of Maharastra, 2003 (8) SCC 93 the death penalty awarded to the accused for the rape and murder of an eleven year old child was converted to imprisonment for life for the reason that he was young man of 20 years when the incident occurred. He had no previous record of any heinous crime and there was no evidence that he would be danger to the society. Similar view has been taken by the Apex Court in Surendra Pal Shivbalakpal v. State of Gujarat, 2005(3) SCC 127; Rahul v. State of Maharastra, 2005 (10) SCC 322 ; Amrit Singh v. State of Punjab, (2006) 12 SCC 79 . In the instant case, though the age of the accused appellant has not been mentioned in his statement under Section 313 Cr.P.C. and we do not have the required details. Yet, there is nothing on record to suggest that the accused had previous history of any heinous offence. However though we do not find that this case falls in the category of “rarest of the rare case” to award death sentence to the accused appellant yet looking to the brutal rape and murder of a young child and the attempt of the accused to conceal the crime by throwing the dead body in the river. From the discussion made above we are of the view that as an alternative to death penalty, the accused appellant be awarded imprisonment for his full life subject to any remission or commutation at the instance of the Government for good and sufficient reasons. In view of the aforesaid facts and circumstances, we conclude that the judgment of the trial Court convicting the appellant under Sections 302, 376(2) (f )and 201 I.P.C. suffers from no illegality and is upheld. In view of the aforesaid facts and circumstances, we conclude that the judgment of the trial Court convicting the appellant under Sections 302, 376(2) (f )and 201 I.P.C. suffers from no illegality and is upheld. We, however, modify the sentence awarded to the appellant and commute the same to a sentence of imprisonment for life. The reference for confirming the sentence of death is rejected. With the above modification the appeal is dismissed. The certified copy of the judgment be sent to the lower Court within a week. The record of the case be also transmitted to the Court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Mainpuri within four weeks from date of receiving the copy of this order. —————