JUDGMENT : R.R.Prasad, J. The criminal appeal as also the Death Reference arising out of the same impugned judgment, were heard together and are being disposed of by this common Judgment. 2. This appeal is directed against the judgment of conviction dated 05/02/2013 and order of sentence dated 08/02/2013, passed by the Sessions Judge, Bokaro, in Sessions Trial No. 122 of 2012, whereby and whereunder the appellant Raju Singh on being found guilty for committing rape and murder of a 10 years girl and then disposing of the dead body, convicted him for the offence punishable under Section 376 (2)(g), 302 and 201 of the Indian Penal Code and was sentenced to death for the offence punishable under Section 302 of the Indian Penal code and further to undergo R.I for 10 years and to pay a fine of Rs. 5000/-with default clause for the offence under Section 376(2)(f) of the Indian Penal Code and further to undergo R.I. for 7 years and to pay a fine of Rs. 3000/-for the offence punishable under Section 201 of the Indian Penal Code with default clause. 3. The case of the prosecution is that on 17/12/2011, the informant Logen Das (PW-10) came to his field which he was cultivating along with his wife Sumitra Devi (PW-1), son Amit Kumar Das (PW-2) and the daughter (deceased) aged about 10 years. There they collected the harvested crop and kept it at one place. He asked his daughter (deceased) to keep watch on it and he along with his wife and son went to another field situated slightly far from there to do cultivating work. After an hour the informant Logen Das (PW-10) again came to that field where her daughter was watching the harvested crop. There he collected some fire woods and put it in fire so that his daughter may take warmth of it. Thereafter, he left for home. In the way he came to a brick kiln belonging to Gadawar Singh (the father of the appellant) where he found this appellant as well as one Manjhi Singh sitting. After having talk with them for couple of minutes, he came home and then went to office. At about 10 O' Clock someone rang him and informed that his daughter is missing. Immediately, he came home and started searching his daughter along with other family members and villagers. After having talk with them for couple of minutes, he came home and then went to office. At about 10 O' Clock someone rang him and informed that his daughter is missing. Immediately, he came home and started searching his daughter along with other family members and villagers. During search, they came across with the appellant and Manjhi Singh at whose instance the dead body was recovered. They, after looking the condition of the dead body, did realise that before she was strangulated to death, she had been subjected to rape. At that point of time his Bhabhi Jhanu Devi (PW-8) informed that some time before she had seen the appellant running away and was perplexed. 4. Meanwhile, one Bir Kumar the then Officer Incharge of Balidih Police Station, upon receiving some information relating to the occurrence came to the field where he recorded the Fardbeyan (Ext.3/1) of the informant at about 1.30 P.M., wherein the informant stated about the incident as has been stated above. 5. On the basis of the said fardbeyan, a case was registered against the appellant and others upon drawing a formal FIR (Ext.-7). Said S.I. Bir Kumar took up the investigation during which he collected semen like material from the thigh of the deceased through swab. He also held inquest on the dead body of the deceased and prepared an inquest report (Ext.-8) and sent the dead body for postmortem examination, which was jointly conducted by Dr. Paramjeet Kumar (PW-6) and Dr. Kamlesh Kumar Sinha (PW-11). 6. Upon holding autopsy on the dead body, they found the following injuries on the person of the deceased:- “(I) Ligature mark at the level of lower part of thyroid cartilage and was circular horizontal, unilateral and complex. (ii) Abrasion in front of nose 1/2” x 1/6” (iii) Tear of Vagina, presence of blood stain suggesting forceful sexual intercourse. (iv) Trachea was found congested. They also took vaginal swab and gave it to S.I. Bhagwan Ram for further examination.” The Doctor issued postmortem examination report (Ext.-2) with an opinion that the death occurred on account of strangulation leading to asphyxia (cardiac respiratory failure). 7. Subsequently, when S.I. Ramesh Tiwary (PW-12) took up the investigation, he recorded the statements of the witnesses and also inspected the place of occurrence. 7. Subsequently, when S.I. Ramesh Tiwary (PW-12) took up the investigation, he recorded the statements of the witnesses and also inspected the place of occurrence. In course of investigation, he, with the permission of the Court, got the sample of the blood of the father and mother of the deceased and also of the deceased, which was sent for its analysis before the Forensic Science Laboratory with a forwarding report (Ext.-6). At the same time, semen collected through swab from the thigh of the deceased was also sent for chemical examination. 8. On completion of the investigation, when the charge sheet was submitted against the appellant, cognizance of the offences was taken. 9. In due course, when the appellant was put on trial, the prosecution in order to prove its case examined as many as 13 witnesses. Of them, PW-1 Sumitra Devi (Mother of the deceased), PW-2 Amit Kumar Das (Brother of the deceased) and PW-10 the informant Logen Das (Father of the deceased) have testified almost in the same manner that on the date of occurrence they had come to the field and collected harvested crop and then they left the deceased there for watching the crop and went to another field. There they worked for an hour and, thereafter, informant Logen Das the father of the deceased, came near his daughter and collected some fire woods and lit it and then left for home. After sometime PWs-1 and 2 came over there where they found the appellant Raju Singh and co-accused Manjhi Singh sitting with the deceased and were taking warmth of the fire. Seeing this PWs-1 & 2 again went to the another field for doing work. After one hour when PWs-1 & 2 came to the field where the decease was watching crop, the found the deceased missing. They also did not find the appellant and another accused present there. They started searching the deceased. At about 10.00 A.M the came to know from the villagers that the dead body is lying near the Bauri Chowk. They also testified that in course of search Jhanu Devi (PW-8) did disclose them that she had seen the appellant fleeing away from the place of occurrence and while he was fleeing away he was quite perplexed. They have also testified that it was the appellant at whose instance the dead body was recovered. 10. They also testified that in course of search Jhanu Devi (PW-8) did disclose them that she had seen the appellant fleeing away from the place of occurrence and while he was fleeing away he was quite perplexed. They have also testified that it was the appellant at whose instance the dead body was recovered. 10. PW-3 Khagen Das the uncle of the deceased and PW-4 Golak Das have testified that while they were searching the deceased, Jhanu Devi disclosed to them that she had seen the appellant fleeing away from the place of occurrence and that it was he at whose instance the dead body was recovered. 11. PW-5 Durga Pd. Soren and PW-9 Kamlakant Singh, are the witnesses to the seizure of the semen like material from the thigh of the deceased. PW-8 Jhanu Devi has testified that when she came to know that the deceased is missing she started searching during which she saw the appellant fleeing away from the place where the dead body was found and it was he, who had showed the dead body. 12. The prosecution also adduced in evidence the reports of the Forensic Science Laboratory, which were marked as Ext.-4, 12 and 12/1. Ext.-12 does indicate that semen was detected in exhibit-B (swab of seminal stains collected from the thigh) and also in exhibit-C (vaginal secretion of the deceased) collected through cotton swab. Ext. 12/1 is the report showing sample of Ext. B and C were of human origin with O blood group. It tallied with the blood group of the accused, which was sent for examination under Ext.-Z. Ext. Ext. 12/1 is the report showing sample of Ext. B and C were of human origin with O blood group. It tallied with the blood group of the accused, which was sent for examination under Ext.-Z. Ext. 4 is the report of DNA Test, which reads as follows:- “(1) Human DNA could be recovered from the Exhibit marked-B (Source: Cotton ball said to be seminal swab collected from thigh of deceased), Exhibit marked-C (Source: Cotton ball said to be vaginal swab of deceased), Exhibit marked-W (Source: Gauze piece said to be soaked with blood of Sumitra Das, mother of deceased), Exhibit marked-X (Source: Gauze piece said to be soaked with blood of Logen Das, father of deceased), Exhibit marked-Y (Source: Gauze piece said to be soaked with blood of suspect Manjhi Singh) and Exhibit-Z (Source: Gauze piece said to be soaked with blood of suspect Raju Singh) (2) The DNA profile generated from the source of Exhibit marked-B (Source: Cotton ball said to be seminal swab collected from thigh of deceased) and Exhibit marked-Z (Source: Gauze piece said to be soaked with blood of suspect Raju Singh) belong to one and the same human male. (3) The DNA profile generated from the source of Exhibit marked-C (Source: Cotton ball said to be vaginal swab of deceased) was found to be incomplete profile of human female. (4) The DNA profile generated from the source of Exhibit marked-W (Gauze piece said to be soaked with blood of Sumitra Das, mother of deceased) was of a human female that of Exhibit marked-X (Source: Gauze piece said to be soaked with blood of Logen Das, father of deceased) and Exhibit marked-Y (Source: Gauze piece said to be soaked with blood of suspect Manjhi Singh) were of human male respectively. The report finally concluded that the contributor of semen on the source of exhibit mark-B (source: seminal swab collected from thigh of deceased) is from the source of Exhibit marked-Z (source: blood of suspect Raju Singh), belong to one and the same human male.” 13. On closure of the prosecution case when the appellant was questioned under Section 313 Cr.P.C. over the incriminating materials appearing against the appellant, he deniedit. 14. On closure of the prosecution case when the appellant was questioned under Section 313 Cr.P.C. over the incriminating materials appearing against the appellant, he deniedit. 14. Thereupon, the trial court having placed its implicit reliance on the testimonies of PWs-1 and 2, establishing the fact that the deceased was lastly seen in the company of the appellant and the death of the deceased is in close proximity of the appellant being seen with the deceased, who, according to the medical evidence, subjected to rape before being done to death and that (Ext.4) establishes that the contributor of semen found on the thigh of the deceased, is from the source Ext.-Z (blood of Raju Singh) belongs to the one and same human male, did find the appellant guilty of the charges and, accordingly, convicted him. 15. Thereupon, the trial court having found the acts of the appellant of committing rape and then throttling the deceased to death and concealing the dead body as the act of perfidy and savagery of the highest degree overwhelming the mitigating circumstance and then placing reliance on the decisions in the case of “Ramesh Bhai Chandu Bai Rathot versus-State of Gujrat [ (2009) 5 SCC 740 ” and also in the case of “Dhananjay Chatterjee versus-State of West Bengal [ (1994) 2 SCC 220 ]” as well as “Rajendra Prahlad Rao Wasnik versus-State of Maharashtra [ (2012) 4 SCC 37 ]” did come to the conclusion that it falls within the category of rarest of rare case, awarded death sentence to the appellant for the offence punishable under Section 302 of the Indian Penal Code. Whereupon the matter was referred to this Court in terms of the provision as contained in Section 366 Cr. P.C., for confirmation of death sentence of the appellant, who, on being aggrieved with the judgment of conviction and order of sentence has also preferred the said criminal appeal. 16. Mr. Sameer Saurabh, learned counsel appearing for the appellant submits that as per the statements made in the fardbeyan by the informant PW-10 the father of the deceased while was coming home he found the appellant and another accused at his brick kiln and in that event the testimony of PW-10 to the effect that he saw the appellant at the place where his daughter was working is not worth acceptable. Similarly, when, as per the testimony of PW-10, he after working in the field, which was situated slightly away from the field where the deceased was sitting, came to her daughter there was no occasion for PWs.-1 & 2 to go to that filed where the deceased was sitting and, therefore, the testimonies of PWs-1 & 2 to the effect that they saw the appellant sitting with the deceased is also not worth acceptable. Further submission, which was advanced is that the trial court based its finding on a DNA Test report but the provision of Section 53 A has never been complied with and, thereby, the said Test report should not have been made basis for conviction of the appellant. Under this situation, order of conviction is fit to be set aside. Further submission which was advanced on behalf of the appellant is that it is not a case, which can be taken to be as rarest of rare case as the prosecution case does suggest that the act of the appellant, who is aged about 25-26 years, committing murder of the deceased, was never premeditated nor the appellant was having criminal background and, therefore, the Court should have taken all these factors into account as mitigating circumstances, but all these mitigating circumstances were not taken into account in right perspective and, therefore, the sentence of death awarded to the appellant is fit to be set aside. 17. As against this, learned counsel appearing for the State submits that the facts and circumstances are as such that there has not been an iota of doubt over the truthfulness of the testimonies of PWs-1 & 2 and, thereby, the last seen theory comes into play where the time gap in between the deceased being seen with the appellant and the deceased being done to death is so little, which go to suggest that it was the appellant who was the perpetrator of the crime and keeping in view the gravity of the offence, the trial court has rightly convicted and awarded the death sentence to the appellant. 18. 18. Having heard counsel appearing for the parties and on going through the records, we do find that it is the case of the prosecution as has been testified by PW-1 Sumitra Devi the mother of the deceased, PW-2 Amit Kumar Das the brother of the deceased and PW-10 Logen Das (the informant) the father of the deceased that on 17/12/2011 at about 06:15 A.M they came along with deceased to his field where they collected harvested crop and put it at a place. There they lit fire after collecting fire woods for having warmth. After sometime PWs-1, 2 & 10 came to another field leaving deceased there situated at some distance for doing some work. After sometime, PW-10 left that place as he had to attend the office and in that course he again came to the field where deceased was watching the crop. According to PW-10, he saw the appellant and other accused sitting near his daughter but this piece of evidence is not acceptable as he, in his earlier statement made in the fardbeyan, had given a different story that while he was going home he saw the appellant and other accused near a brick kiln. However, according to PWs-1 & 2, they also left that filed and when came to the field where the deceased was there they found the appellant and other accused sitting alongwith the deceased. After seeing this, they again came to that field where they were working. After an hour when they again came they found the deceased missing. They also did not find the appellant and other accused Manjhi Singh any where. At 10 O' Clock they came to know that the dead body is lying at Bauri Chowk. A criticism has been made that when PW-10 earlier to PWs-1 & 2 had come to the field where the deceased was watching the crop, there was no occasion for PWs-1 & 2 to go over there. This submission is not acceptable for the reason that PWs-1 & 2 after one hour of leaving of PW-10 had come to see the deceased probably on account of the fact that she being a girl aged about 10 years was alone there. This submission is not acceptable for the reason that PWs-1 & 2 after one hour of leaving of PW-10 had come to see the deceased probably on account of the fact that she being a girl aged about 10 years was alone there. The fact that the witnesses had put fire woods on fire for having warmth at the place where the deceased was left for watching the harvested crop gets corroboration from the objecting finding of the Investigating Officer, who did find the burnt fire woods at that place. 19. Further, we do find that the prosecution has tried to put forth the case that the dead body was recovered at the instance of the appellant but we do not find any convincing evidence to this effect. However, it is also the case of the prosecution as has been testified by PW-8 Jhano Devi that while she was searching the deceased she saw the appellant fleeing away from the place from where the dead body was recovered and while he was fleeing away he was quite perplexed. This fact was told by PW-8 to PW-4 & PW-3 but the evidences of PWs-3 & 4 in this regard is not admissible as Jhano Devi (PW-8) has never testified that she had told them about the said fact. Criticism was also made that PW-8 too on the aforesaid fact is not believable, rather her testimony is after thought as she has not made such statement before the police though attention was drawn of PW-8 towards her earlier statements, which she replied in positive but the defence did not put this question to the Investigating Officer and under the circumstances, submission made on behalf of the defence that the said statement is after thought is not acceptable. 20. Under the circumstances, there has been no reason to disbelieve her version that she saw the appellant fleeing away from the place of occurrence and while he was fleeing away, he was quite perplexed. This conduct of the appellant is also admissible in evidence. 21. Thus, it appears that the case of the prosecution is based on last seen theory as well as on other evidence. This conduct of the appellant is also admissible in evidence. 21. Thus, it appears that the case of the prosecution is based on last seen theory as well as on other evidence. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any presence other than the accused being the author of the crime becomes impossible. 22. Here in the instant case as we have noticed that around about 8.00 to 8.30 A.M the appellant was seen sitting with the deceased and around 9.00 to 9.30 A.M the deceased was found missing, whose dead body was recovered at 10 O' Clock. Taking into account this aspect and also the other facts relating to appellant being seen fleeing away in perplexed condition one can easily come to conclusion that it was the appellant and the appellant alone, who committed the murder after subjecting the deceased to rape. This fact further gets proved from Ext.4, which is a DNA Test report indicating therein that the contributor of semen of Ext.B ((Source: seminal swab collected from thigh of deceased) is from the source of Ext. Z ( Source: blood of suspected Raju Singh), belong to one and the same human male. 23. According to learned counsel appearing for the defence, the Doctor after collecting blood sample gave it to Investigating Officer, who never got it sealed and thereby, there were chances of mixing of blood sample with other. The aforesaid submission seems to have been based on hypothesis and not on the fact as even no suggestion to this effect was given to the Investigating Officer. 24. Thus, keeping in view the testimonies of the witnesses as aforesaid, getting corroboration from the postmortem report regarding deceased being raped and also from the DNA Test report, we do find that the trial court was absolutely justified in recording the guilt of the appellant. 25. 24. Thus, keeping in view the testimonies of the witnesses as aforesaid, getting corroboration from the postmortem report regarding deceased being raped and also from the DNA Test report, we do find that the trial court was absolutely justified in recording the guilt of the appellant. 25. Now, coming to the point of sentence, it was submitted on behalf of the defence that it is not a fit case, which can be branded as rarest of rare case as the case as has been projected by the prosecution itself suggests that the murder of the deceased was never premeditated and that the age of the appellant happens to be 25-26 years but the court below did not take into account this important aspect of the matter as mitigating circumstances and, thereby, the sentence of death, awarded to the appellant is fit to be set aside. 26. As against this, learned counsel appearing for the State submits that the facts and circumstances are as such that there has not been an iota of doubt over the culpability of the appellant and the manner in which a 10 years innocent girl was subjected to torture and was murdered, does suggest that it was committed with all brutality and with sense of inhumanity and, thereby, the appellant does not deserve any less sentence than the death sentence, which has rightly been awarded by the trial court. 27. The learned trial court while awarding death sentence took into account the aggravating circumstances appearing in this case that the deceased was a 10 years old girl was alone at the filed and must have trust over the appellant, who was the son of the land owner from whom the land had been taken on 'Batai' and as against that only mitigating circumstance is that the appellant had no criminal antecedent and, thereby, mitigating circumstances overwhelming the mitigating circumstance justifies imposition of capital punishment. 28. The only question that now remain to be decided as to whether this case falls in the category of the rarest of rare case justifying capital punishment. It be stated that the Hon'ble Supreme Court in several judgments has been pleased to confirm the capital punishment where the rape and murder have been committed on a minor girl after striking the balance between the aggravating and mitigating circumstances. It be stated that the Hon'ble Supreme Court in several judgments has been pleased to confirm the capital punishment where the rape and murder have been committed on a minor girl after striking the balance between the aggravating and mitigating circumstances. Several other factors like the young age of the accused the possibility of reformation, lack of intention to murder consequent to rape etc. have also gone into the judicial mind. 29. The Hon'ble Supreme Court in the case of “Bachan Singh versus-State of Punjab [ (1980) 2 SCC 684 ]”, while determining the constitutional validity of the death penalty was pleased to examine the sentencing procedure embodied in sub-section (3) of Section 354 Cr.P.C. and held as follows:- “164 (b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.” 30. Subsequently, in a case of “Machhi Singh versus-State of Punjab [ (1983) 3 SCC 470 ]” the Hon'ble Supreme Court has held as follows:- “The case fell in the category of the rarest of rare cases calling for capital punishment since the victim of murder was an innocent child who could not have or had not provided even an excuse, much less a provocation for murder or the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner which aroused intense and extreme indignation of the community. The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of rare cases.” 31. Apart from those celebrated judgments there have been long list of the cases wherein the Hon'ble Supreme Court did find that in the nature of case of rape and murder death penalty is appropriate and in some cases taking into account the mitigating circumstances, it has been held that the death penalty is not justified. 32. Apart from those celebrated judgments there have been long list of the cases wherein the Hon'ble Supreme Court did find that in the nature of case of rape and murder death penalty is appropriate and in some cases taking into account the mitigating circumstances, it has been held that the death penalty is not justified. 32. In this respect, we may refer to a decision of the Hon'ble Supreme Court, rendered in a case of “Akhtar versus State of U.P. [ (1999) 6 SCC 60 ]”, wherein it has been held as follows:- “3... But in the case in hand on examining the evidence of the three witnesses it appears to us that the appellant-accused has committed the murder of the deceased girl not intentionally and with any premeditation. On the other hand the appellant-accused found a young girl alone in a lonely place, picked her up for committing rape; while committing rape and in the process by way of gagging the girl has died. The medical evidence also indicates that the death is on account of asphyxia. In the circumstances we are of the considered opinion that the case in hand cannot be held to be one of the rarest of rare cases justifying the punishment of death.” 33. Further in the case of “Bantu versus State of M.P. [ (2001) 9 SCC 615 ]”, it has been held by the Hon'ble Supreme Court as under:- “8...In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence.” 34. Again in the case of “Amit versus State of Maharashtra [ (2003) 8 SCC 93 ]” it has been held as under:- “10. The next question is of the sentence. Hence, there is no justifiable reason to impose the death sentence.” 34. Again in the case of “Amit versus State of Maharashtra [ (2003) 8 SCC 93 ]” it has been held as under:- “10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student;; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstance of the case, we do not think that the case falls in the category of the rarest of rare cases. We hope that the appellant will learn a lesson and have an opportunity to ponder over what he did during the period he undergoes the life sentence.” 35. Keeping in mind the principle laid down in those cases, we do find that this is also a case where a young girl alone in a lonely place was picked up and was subjected to rape and then strangulated to death and, thereby, it cannot be said to be premeditated. That apart the appellant is a young man of aged about 25-26 years and that he has no prior record of any heinous crime and that there has been no evidence that he would be danger to the society. In that event, awarding to death sentence does not appear to be justified. 36. Accordingly, death sentence awarded to the appellant is hereby commuted to life sentence, which would run consecutively with other sentences awarded by the Court. 37. Thus, this criminal appeal stands dismissed with commuting the death sentence into life imprisonment to be run consecutively with the other sentences. 38. Accordingly, death reference is answered in the aforesaid manner.