JUDGMENT : N.K. Gupta, J. 1. Since both the matters are connected and arise out of the common judgment dated 27.12.2014 passed by the II Additional Sessions Judge, Dabra, District Gwalior (M.P.) in ST No.642/2014, the present common judgment is being passed. 2. The appellant has been convicted of offence under Section 376-A, 302, 376(2)(i) of Indian Penal Code (for short "the IPC") and under Section 6 of the Protection of Children From Sexual Offences Act, 2012 (for brevity "the POCSO Act") and sentenced to death sentence with a fine of Rs.2,000/-, death sentence with a fine of Rs.2,000/-, Life imprisonment with a fine of Rs.2,000/- and Life imprisonment with a fine of Rs.2,000/- respectively. Being aggrieved by the aforesaid judgment, the appellant Veerendra has preferred the present appeal (Criminal Appeal No.39/2015) whereas the Additional Sessions Judge, Dabra, District Gwalior (M.P.) has sent the reference for confirmation of death sentence. 3. Facts, in short, are that the deceased/prosecutrix was the daughter of Laxmibai Batham (PW-1). On 19.09.2014, the deceased/prosecutrix, aged 8 years, was sent by Raju, the uncle of the deceased/prosecutrix, to fetch a bundle of Bidi from the shop of Sunil and thereafter she was found missing. Laxmibai (PW-1) had lodged a missing report, Ex.P-1. In the entire night, she could not be traced. On the next day, Sub-Inspector- Shri B.L. Bansal (PW-19) called the applicant Veerendra and his companions including Pappu @ Patiram (PW-4). After some interrogation, the appellant Veerendra was arrested and arrest memo Ex.P-4 was prepared. He gave the information about the dead body of the deceased and told the details of the incident. Shri Bansal recorded the memo, Ex.P-5, under Section 27 of the Evidence Act. Thereafter, Shri Jitendra Nagaich (PW-16), the Station House Officer of the Police Station, proceeded with the investigation and the body of the deceased/prosecutrix was recovered from the abandoned house of the witness Jagdish @ Jagan (PW-6). The dead body of the deceased/prosecutrix was sent for post mortem. Dr. D.C. Arya (PW-10) and lady doctor Asha Singh have performed the post mortem on the body of the deceased. Along with other particulars, they found so many injuries to the deceased/prosecutrix. There was a perennial tear of 3.5 inches X 2.5 cms from private part to anal cavity. There was swelling and congestion on whole private part of the deceased/prosecutrix. D.C. Arya (PW-10) and lady doctor Asha Singh have performed the post mortem on the body of the deceased. Along with other particulars, they found so many injuries to the deceased/prosecutrix. There was a perennial tear of 3.5 inches X 2.5 cms from private part to anal cavity. There was swelling and congestion on whole private part of the deceased/prosecutrix. Her uterus was found to be ruptured and was coming out of her private part. Doctor collected the vaginal swab, nails, a portion of vaginal tissues etc and handed over to the concerned constable after sealing them separately. The police recovered a full pant of the appellant from him and all such articles were sent to the Forensic Science Laboratory. Ultimately, a report, Ex.P-21, was received in which some articles were found stained with human blood and semen was also found on some of the articles. After due investigation, the charge-sheet was filed before the Additional Chief Judicial Magistrate, Dabra, District Gwalior (M.P.) who committed the case to the court of Sessions and ultimately it was transferred to II Additional Sessions Judge, Dabra, District Gwalior (M.P.). 4. The appellant abjured his guilt. He did not take any specific plea in the defence. He has simply stated, under Section 313 of Cr.P.C., that he was innocent and falsely implicated in the matter. No defence evidence was adduced. 5. Initially, the trial court had framed the charges of offence under Sections 364, 376(2)(i), 302, 201 of IPC and under Sections 3, 5 and 6 of the POCSO Act but vide order dated 16.12.2014, the charge of offence under Section 376-A of IPC was added and Dr. D.C. Arya (PW-10) was recalled. The trial court acquitted the appellant from the charges of offence under Sections 364A and 201 of IPC but convicted and sentenced him as mentioned above. 6. We have heard the learned counsel for the parties at length. 7. The present case totally depends upon the circumstantial evidence and therefore it would be appropriate to examine each and every circumstance of the case. Prior to such consideration, the objection raised by the learned counsel for the appellant relating to provision under Section 217 of Cr.P.C. should be considered. 7. The present case totally depends upon the circumstantial evidence and therefore it would be appropriate to examine each and every circumstance of the case. Prior to such consideration, the objection raised by the learned counsel for the appellant relating to provision under Section 217 of Cr.P.C. should be considered. Learned counsel for the appellant has submitted that after examining all the witnesses, the trial court suddenly added the charge of Section 376-A of IPC but thereafter the provision contained under Section 217 of Cr.P.C. was not followed though the learned counsel for the appellant had requested for recalling of the witnesses but prayer of the appellant was refused. In this context, the learned counsel for the appellant has referred the order-sheet dated 16.12.2014 of the trial court in which the prayer of the defence counsel for recalling the witnesses was not accepted. It was mentioned "on perusing the record it is clear that summoning the examined witnesses is not for just decision of the case", however, the prayer of the prosecutor was accepted and Dr. D.C. Arya (PW-10) was recalled. In this connection, the learned counsel for the appellant has invited the attention of this Court to the judgment passed in the case of "Vikas and others v. State of Madhya Pradesh" [2001 Cri.L.J. 3665] in which it is held by the Madhya Pradesh High Court that where an additional charge is framed against the accused persons under Section 149 of IPC the court is not justified in rejecting the application of the accused for recalling the witnesses for the purpose of cross-examination. In this context, the judgment passed by the Apex Court in the case of "Ranbir Yadav v. State of Bihar" [ AIR 1995 SC 1219 ] may also be referred in which it is held that the court may, however, deny such right if it is of the opinion that the purpose is only delay or vexation or defeating the ends of justice. Similar right with the same safeguard is also conferred on the prosecution. Court is not duty bound to ask the accused, after the charge has been altered, to state whether he wishes to have any of the witnesses recalled or re-examined and whether he wishes to call any further witnesses. 8. Similar right with the same safeguard is also conferred on the prosecution. Court is not duty bound to ask the accused, after the charge has been altered, to state whether he wishes to have any of the witnesses recalled or re-examined and whether he wishes to call any further witnesses. 8. In the present case, when the learned counsel for the appellant had prayed for recalling of the witnesses then it was for the trial court to pass a speaking order that the prayer was made with the purpose of causing delay or vexation or defeating the ends of justice. The trial court has written a single sentence that in his opinion the evidence on record was clear and therefore, the witnesses were not required to be called for just decision of the case. 9. When the charges of Sections 302 and 376 of IPC were also framed against the appellant then there was no necessity to frame the charge under Section 376-A of IPC by the trial court unless there was an additional effect of framing of such charge for or against the accused. If charges under Sections 302 and 376 of IPC were framed and it was found that the deceased/prosecutrix died during the course of rape and the accused did not intend to kill her then it was possible that crime of the appellant would be within the purview of Section 304 of IPC and the trial court could not record a death sentence against the appellant for any offence including Section 376 of IPC. The provision under Section 376-A of IPC is a special provision enacted with the object that if during commission of rape, accused inflicts any injury which causes death of that woman or causes woman to be in persistent vegetative state, though the accused did not intend to kill the deceased/prosecutrix even then death sentence can be inflicted and therefore, when a special provision was enacted and death sentence is provided for that offence then an opportunity could be given to the accused for recalling of all the witnesses. It was for the trial court to mention that prayer for recall was made only to cause delay or vexation and it was not in the interest of justice but the trial court did not mention any such reason in its order. It was for the trial court to mention that prayer for recall was made only to cause delay or vexation and it was not in the interest of justice but the trial court did not mention any such reason in its order. As discussed above, the framing of charge under Section 376-A of IPC creates an extra burden upon the appellant and a death sentence could be recorded against him for offence of rape, even if offence under Section 302 of IPC was not proved and therefore if the prayer of the appellant was not accepted for recalling of the witnesses then a prejudice was caused to the appellant that he was not given the advantage of Section 217 of Cr.P.C. In the light of the aforesaid judgments passed by the Apex Court and the M.P. High Court, the Additional Sessions Judge, has committed an error in not following the provision contained under Section 217 of Cr.P.C. and therefore, the appellant cannot be convicted for the offence under Section 376-A of IPC. In such a case, it would be appropriate for this Court either to remand the matter to the trial court for compliance of the provision under Section 217 of Cr.P.C. and to pass a fresh judgment or to consider the remaining case except of charge under Section 376-A of IPC. Looking to original charges and evidence, we do not find any reason to remand the case for retrial of additional charge. 10. In the present case, the first circumstance which goes against the appellant is evidence of last seen. The deceased/prosecutrix was sent by Raju, her uncle, to fetch a bundle of Bidi from the shop of Sunil. The witness Brajlal (PW-2) and Pappu @ Patiram (PW-4) have stated that the appellant followed her and thereafter she did not come back and was found missing. The learned counsel for the appellant has submitted that Brajlal (PW-2) was the relative of the deceased/prosecutrix being maternal-grandfather and therefore he may be a partial witness implicating the appellant in the case. If he had seen the appellant who was chasing the deceased/prosecutrix then while lodging the missing report, such suspicion could be shown by him. However, such submission cannot be accepted at this stage. If he had seen the appellant who was chasing the deceased/prosecutrix then while lodging the missing report, such suspicion could be shown by him. However, such submission cannot be accepted at this stage. If statements of Brajlal (PW-2) and Pappu @ Patiram (PW-4) are minutely considered then it would be apparent that Brajlal (PW-2) was the common relative of the deceased/prosecutrix and the appellant. Hence, he would not have thought against the appellant as to why he was chasing the deceased/prosecutrix. However, since he had shown his suspicion, therefore, Sub-Inspector Shri B.L. Bansal (PW-19) had called the appellant as well as his companions including Pappu @ Patiram (PW-4) and started interrogation. Pappu @ Patiram (PW-4), a friend of the appellant, has clearly stated that the appellant gave him some money to fetch a bottle of liquor. When he prepared pegs for them, the deceased/prosecutrix passed through the way near the house of Pappu @ Patiram (PW- 4) and according to him, the appellant Veerendra did not consume liquor and he told Pappu @ Patiram (PW-4) that he was returning soon and thereafter he followed the deceased/prosecutrix. Pappu @ Patiram (PW-4) has clearly stated in para 1 and 6 that he was preparing drinks for the appellant Veerendra and one Rakesh and when the appellant Veerendra was called by the police, he and witness Rakesh were also called to the police station which clearly indicates that the police had suspicion upon these persons i.e. Rakesh, Pappu and appellant Veerendra. 11. If Brajlal (PW-2) had not seen the appellant chasing the deceased/prosecutrix then he could not have shown his suspicion against these three persons and police could not have called these three persons simultaneously at the police station. A suggestion was given to the witness Pappu @ Patiram (PW-4) that he had a dispute with the appellant relating to driving a rickshaw but such suggestion appears to be hypothetical suggestion. If there was enmity between Pappu @ Patiram (PW-4) and the appellant then it was not possible for the appellant to give some money to the witness Pappu @ Patiram (PW-4) and to have a cocktail party. Under these circumstances, the evidence of Brajlal (PW-2) and Pappu @ Patiram (PW-4) is believable and the prosecution has proved beyond doubt that when the deceased/prosecutrix had passed through the house of the witness Pappu @ Patiram (PW-4), the appellant started chasing her. Under these circumstances, the evidence of Brajlal (PW-2) and Pappu @ Patiram (PW-4) is believable and the prosecution has proved beyond doubt that when the deceased/prosecutrix had passed through the house of the witness Pappu @ Patiram (PW-4), the appellant started chasing her. Consequently, the factum of last seen is duly proved against the appellant. 12. The learned counsel for the appellant has placed his reliance upon the judgment passed by the Apex Court in the case of "Nizam and another v. State of Rajasthan" [ (2016)1 SCC 550 ] in which it is held that it is not prudent to base the conviction solely on "last seen theory". Where time gap is long it would be unsafe to base the conviction on the "last seen theory" it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. The aforesaid judgment cannot be applied in the present case because in the present case there was no time gap between the event of last seen and the crime committed. Also, it is not a case in which no corroboration of the evidence of last seen is available. There are also some corroborative pieces of circumstantial evidence to prove the theory of last seen. 13. Second circumstance against the appellant is the place, where the dead body of the deceased/prosecutrix was found. It was a ruin of a house and nobody would ordinarily go inside that ruined house. Jagdish @ Jagan (PW-6), owner of that property, has stated that on that plot there were four rooms and one courtyard but now it had turned into a ruin. One wall had fallen down and therefore anybody could enter at that place. He had kept some sacks in those rooms. The ruined house was located at such a place where shouts and cry of the deceased/prosecutrix could not have been heard by anyone and therefore it is proved by the prosecution that the place of incident was a remote ruin and the appellant had knowledge about that place. 14. The witness Madanlal (PW-12) has stated that at about 09:00 pm, he saw the appellant coming out of that ruined house of witness Jagdish @ Jagan (PW-6) while removing dust and dirt from his clothes. Madanlal (PW-12) is though a chance witness but not at all an interested witness. 14. The witness Madanlal (PW-12) has stated that at about 09:00 pm, he saw the appellant coming out of that ruined house of witness Jagdish @ Jagan (PW-6) while removing dust and dirt from his clothes. Madanlal (PW-12) is though a chance witness but not at all an interested witness. Learned counsel for the appellant has submitted that the police has recorded the evidence of Madanlal (PW- 12) with delay. However, it is proved by other prosecution witnesses that since such crime was sensational the deceased/prosecutrix, a girl child of eight years, was missing and at the time of recovery and seizure so many persons had surrounded the place of incident and the investigation of the case was a talk of the town and therefore the witnesses who knew about such a fact which was not important otherwise in their opinion in the beginning would have visited the police station and told about the fact which they had seen or observed. Hence, if Madanlal (PW-12) had not tendered the evidence as a witness to the police, the police could not have imagined that Madanlal had seen the accused coming out of that ruined house of Jagdish @ Jagan (PW-6) at about 09:00 pm. No enmity or bias of the witness Madanlal (PW-12) is established with the accused and therefore there is no reason to discard his testimony. Hence, it is proved by the prosecution that soon after the incident the appellant was coming out of the place of incident. Though such evidence is not a direct evidence but the same is admissible under Section 6 of the Evidence Act and this is also a circumstance which goes against the accused. 15. Sub-Inspector Shri B.L. Bansal (PW-19) and Brajlal (PW-2) have stated that the appellant told about the entire incident and accepted to show the place where he had hidden the dead body the deceased/prosecutrix. A memo, Ex.P-5, was recorded. Thereafter, the Station House Officer Shri Jitendra Nagaich (PW-16) went to the spot along with the witnesses and dead body of the deceased/prosecutrix was recovered as shown by the appellant. The recovery was done before the witnesses Brajlal and Ganesh. A memo, Ex.P-5, was recorded. Thereafter, the Station House Officer Shri Jitendra Nagaich (PW-16) went to the spot along with the witnesses and dead body of the deceased/prosecutrix was recovered as shown by the appellant. The recovery was done before the witnesses Brajlal and Ganesh. The learned counsel for the appellant has submitted that Brajlal was the maternal grandfather of the deceased/prosecutrix and the given up witness, namely, Ganesh was the father of the deceased/prosecutrix and since no independent witness was taken by the investigating officers the entire proceeding of recovery of the body appears to be fishy. It is further submitted that the appellant was called at the police station in the morning and without recording his memo under Section 27 of the Evidence Act, he was arrested. Also, after recording of the memo under Section 27 of the Evidence Act he was not taken to the place of incident for a longer period and thereafter investigating officer was changed and Shri Jitendra Nagaich (PW-16) had completed the portion of recovery whereas various documents were found in the handwriting of Sub-Inspector Shri B.L. Bansal and Shri Jitendra Nagaich had appended his signatures on various documents. The objection raised by the learned counsel for the appellant is not acceptable. Such argument is dependent upon the time of information given by the witness Shri Akhilesh Bhargava, Senior Scientist of Mobile Unit of Forensic Science (PW-14) and Shri Balkrishna Mehoriya Sub-Inspector, Photographs (PW-15). According to these witnesses, they were intimated to come to the spot at about 04:00 pm when no memo of the appellant under Section 27 of the Evidence was recorded. However, these witnesses were not on such a post so that they could state about the exact time of information given to them but they have accepted that at the time of recovery of body they were present at the spot. 16. In this connection, the statement given by the Tahsildar and Executive Magistrate Shri Deepak Shukla (PW-11) is important which explains everything relating to objection raised by the learned counsel for the appellant. According to Shri Deepak Shukla (PW-11), Sub-Divisional Magistrate, Dabra, District Gwalior (M.P.) called him and told that there was a problem of law and order and therefore he should go to the police station. According to Shri Deepak Shukla (PW-11), Sub-Divisional Magistrate, Dabra, District Gwalior (M.P.) called him and told that there was a problem of law and order and therefore he should go to the police station. Law and order problem could be created because eight years' old girl child was missing and the public was agitating that the police was not doing anything to trace the child. Therefore, the Tahsildar Shri Deepak Shukla (PW-11) was sent to the police station who has categorically mentioned that the appellant took the police party and the witnesses to the spot. He removed some sacks and showed the dead body of the deceased. Similarly, the evidence of Shri Sonish Vashishtha (PW-5), a journalist, is equally important who has stated that on getting information he went to the police station at about 4-5 pm and thereafter he completed the videography of the recovery of dead body of the deceased/prosecutrix. He also prepared the CD of the videography record and CD was provided to the police which was recovered as seizure memo Ex.P-10. Shri Sonish Vashishtha has also stated that the appellant at the spot went ahead, removed some sacks and showed the dead body of the deceased. If Ganesh and Brajlal were the relatives of the deceased/prosecutrix then still journalist Shri Sonish Vashishtha (PW-5) and Executive Magistrate Shri Deepak Shukla (PW-11) have corroborated the factum of recovery of the dead body and they have categorically provided that the appellant removed some sacks and got the dead body recovered from the spot. Hence, if the investigating officer did not take any independent witness then it makes no difference in the present case. A reputed journalist and an executive magistrate cannot be disbelieved. Also the CD was recovered by the police relating to videography done by Shri Sonish Vashishtha (PW-5) to prove that the dead body was shown by the appellant after removing sacks. 17. So far as the change of investigating officer is concerned, it would be apparent that it was a sensational matter and the crowd had gathered in front of the police station. 17. So far as the change of investigating officer is concerned, it would be apparent that it was a sensational matter and the crowd had gathered in front of the police station. The SDM sent the Executive Magistrate to control the position of law and order then it was necessary for the SHO not to leave the investigation with the Sub-Inspector Shri B.L. Bansal and to take investigation in his own hands and therefore after recording the memo under Section 27 of the Evidence Act if Shri Jitendra Nagaich (PW-16) had taken the investigation in his hands and he obtained the assistance of Shri B.L. Bansal (PW-19) then it does not cause any prejudice to the appellant. By the evidence of aforesaid witnesses it is proved beyond doubt that the dead body of the deceased/prosecutrix was recovered on the information given by the appellant. This is a grave circumstance against the appellant. In the case of "Jaharlal Das v. State of Orissa" [ AIR 1991 SC 1388 ], the Apex Court had laid that the crucial circumstance is the discovery of body at the instance of the accused. In that case since no such circumstance was proved, the Apex Court acquitted the accused but it was also held that the discovery of the dead body at the instance of the accused is a crucial circumstance. Also in this connection the judgment passed by the Apex Court in the case of "Mohd. Mannan alias Abdul Mannan v. State of Bihar" [ (2011) 5 SCC 317 ] may be referred in which it is held that the discovery of body at the instance of the accused is the most important circumstance. In the present case, it is one of the most important circumstance that the body of the deceased/prosecutrix was discovered on the basis of information given by the appellant Veerendra. 18. The dead body of the deceased/prosecutrix was sent for the post-mortem and Dr. D.C. Arya (PW-10) performed the post-mortem along with Dr. Asha Singh and gave a report Ex.P-17. The learned counsel for the appellant has submitted that since it was a body of the female child, therefore, the post-mortem of the body should have been done by a lady doctor and she would have been examined. Hence, the statement of Dr. D.C. Arya (PW-10) has no much meaning. However, such contention cannot be accepted. The learned counsel for the appellant has submitted that since it was a body of the female child, therefore, the post-mortem of the body should have been done by a lady doctor and she would have been examined. Hence, the statement of Dr. D.C. Arya (PW-10) has no much meaning. However, such contention cannot be accepted. When a team of doctors including a lady doctor performs the post-mortem on the body of a girl child and when a common report has been given by the doctors then such report can be proved by any of the doctors and if report Ex.P-17 is proved by Dr. D.C. Arya (PW-10), a male doctor, then it makes no difference. According to Dr. D.C. Arya (PW-10), approximately eight injuries were found on the body of the deceased/prosecutrix. She had blunt wounds on her little finger, right thigh, left thigh and left side of private part. In this connection, the injuries no.7 and 8 as mentioned by Dr. D.C. Arya (PW-10) before the trial court were important. It was mentioned that there was a perennial tear below the private part which was continued up to anal cavity. Its size is 3.7 inches X 2.5 cms. Her uterus was ruptured and it was coming out of her private part. According to him, all such injuries were antemortem in nature. Dr. D.C. Arya (PW-10) collected the vaginal swab, tissues from the private part, nails of fingers etc. and referred them for Forensic Science Examination. The report from FSL Ex.P-21 has been received. According to that report, in the vaginal swab of the deceased/prosecutrix blood as well as semen and human sperms were found. The post-mortem report given by Dr. D.C. Arya (PW-10) and the FSL report Ex.P-21 indicate that the rape was committed upon the prosecutrix and her death was homicidal in nature. Such circumstance also goes against the appellant. 19. Shri Jitendra Nagaich (PW-16) has proved the seizure memo Ex.P-8 by which one pant and shirt were recovered from the appellant and in the report of the Forensic Science Laboratory, Ex.P-21, human blood was found on the pant article "C", however, serological part of the report Ex.P-21 does not indicate about any blood-group etc. 19. Shri Jitendra Nagaich (PW-16) has proved the seizure memo Ex.P-8 by which one pant and shirt were recovered from the appellant and in the report of the Forensic Science Laboratory, Ex.P-21, human blood was found on the pant article "C", however, serological part of the report Ex.P-21 does not indicate about any blood-group etc. Learned counsel for the appellant submits that it was not established that the semen found in the vaginal swab of the deceased/prosecutrix was of the appellant or the blood found on his pant was of the deceased/prosecutrix. In this connection, the reliance has been placed upon the judgment passed by the Apex Court in the case of "State of Uttar Pradesh v. Satveer and others" [ (2015) 9 SCC 44 ]. In that case, it was not proved that the blood stains which were found were of human origin. In that case, it was not laid that if other corroborative evidence is available then the same may be discarded on the basis of grouping of blood. The reliance has also been placed upon the judgment passed by the Apex Court in the case of "R. Shaji v. State of Kerala" [ AIR 2013 SC 651 ] in which it is laid down that a failure to trace the origin of the blood found on the weapon then in such a case unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. 20. However, in the present case, factual position is different. The other strong circumstances are available against the appellant. In this connection, the judgment passed by the Apex Court in the case of Kansa Behera v. State of Orissa [ AIR 1987 SC 1507 ] may be referred in which it is mentioned that when the conviction is to be recorded only on the basis of blood stains then it is for the prosecution to prove beyond doubt that blood found on the articles of the accused should be of the deceased and hence blood group of the blood found on the articles of the deceased should be ascertained but when other circumstances are available then absence of detection of blood group is not fatal to other circumstances against the accused, specially that human blood was found on his pant. 21. 21. The learned counsel for the appellant has also placed his reliance upon the judgment passed by the Apex Court in the case of "State of Gujarat v. Kishanbhai and others" [ (2014) 5 SCC 108 ] in which the necessity of blood group and DNA test was observed. However, in that case, the blood group of the victim as well as the accused was the same as "B Positive" and therefore need of DNA test was mentioned. But it was not laid in that case that in absence of any DNA report or grouping of blood no conclusion can be drawn. Under these circumstances, the law laid down in the case of State of Gujarat (supra) cannot be applied in the present case. Learned counsel for the appellant has also invited attention of this Court to the provisions of Section 53-A of Cr.P.C. that DNA test of the accused with vaginal swab was to be done and it was mandatory. In the absence of that DNA report, the accused cannot be held guilty. Actually, Section 53-A of Cr.P.C., gives a duty on the prosecution to examine the accused of rape by medical practitioner. In this context, the provision of Section 53-A(2) of Cr.P.C. may be reproduced as under: "Section 53-A(2): The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely- 1. the name and address of the accused and of the person by whom he was brought, 2. the age of the accused, 3. marks of injury, if any, on the person of the accused, 4. the description of material taken from the person of the accused for DNA profiling, and" 5. Other material particulars in reasonable detail." Perusal of sub-section (2) of Section 53-A of Cr.P.C., it appears that the medical practitioner is directed to give the particulars as mentioned in sub-section 2 if he had taken any material from the person of the accused for DNA profiling then such particulars should be given. In this provision, it is not mentioned that DNA test is mandatory. 22. In this provision, it is not mentioned that DNA test is mandatory. 22. In this connection, the judgment passed by the Apex Court in the case of "Krishan Kumar Malik v. State of Haryana" [ (2011) 7 SCC 130 ] may be perused in which it is held that after the incorporation of Section 53 (A) in Cr.P.C., it has become necessary for the prosecution to go in for DNA test in cases, facilitating the prosecution to prove its case against the accused. But such necessity was shown to make the case full proof but it is not observed that in absence of any DNA test the remaining evidence of the prosecution shall be thrown away. Hence, if Dr. Harish Arya (PW-17), in his report Ex.P-24, did not mention to take DNA sample of the appellant then it makes no difference in the case. If DNA sample was not taken from the appellant then it would not be fatal to the remaining evidence. Learned counsel for the appellant has also submitted that tissues of private part of the prosecutrix were collected by Dr. D.C. Arya (PW-10) and provided to the police but the same were not transmitted to the Forensic Science Laboratory. In the circumstances of the case, no further analysis was required of such tissues to connect with the appellant and therefore, it appears that such tissues sample was not sent to the FSL by the S.P. Concerned and it makes no difference. 23. Dr. Harish Arya (PW-17), on examining the appellant, gave a report Ex.P-24. He found four scratches on the face of the appellant. One was on the left jaw, second was on left side of his neck, third was on his right cheek and the fourth was below the angle of left jaw. No explanation was given by the appellant as to how such injuries were caused. In this connection, Brajlal (PW-2) has categorically stated in para 2 of his statement that since there were nail marks on the face of the appellant, he had a doubt upon the appellant that he was the culprit. The learned counsel for the appellant submits that Dr. D.C. Arya (PW-10) took the nails of the deceased for forensic analysis. But such nails were not sent to the Forensic Science Laboratory. The learned counsel for the appellant submits that Dr. D.C. Arya (PW-10) took the nails of the deceased for forensic analysis. But such nails were not sent to the Forensic Science Laboratory. It is true that such nails were not sent for FSL, however, since no sample of skin of the appellant was taken by Dr. Harish Arya (PW-17) then by sending of nails if any tissue of skin was found in those nails then sample of such tissues could not be compared with and therefore non-sending of the nails to the FSL does not create any adverse effect on the remaining evidence of the prosecution. 24. Learned counsel for the appellant has also referred the evidence given by Dr. Harish Arya (PW-17) in which he did not find any injury on the penis of the appellant. No injury was found on the scrotum and thigh. It is, therefore, submitted that if the appellant had committed rape upon a girl of minor age of eight years then he would have sustained some injuries on his penis and since no injury was found on his penis he was innocent and family members of the prosecutrix would have implicated him falsely with the help of investigating officer. In this connection, reliance is placed upon the judgment passed by the Apex Court in the case of "Rahim Beg and another v. State of U.P." [ AIR 1973 SC 343 ] in which it is held that rape alleged to have been committed by fully developed man on a girl aged 10-12 years who was virgin. The absence of such injuries on the male organ indicates the innocence of the accused. However, such opinion was given on the basis of evidence given by Dr. Katiyar who opined in that case that there were likely to be injuries on male organ of the man in such intercourse. Actually, the injury on male organ depends upon several facts. If a penis is inserted in vagina having small aperture skin covering glans penis may be injured. If the penetration has been done without any injury then thereafter committing the offence of rape, there is no possibility of getting any further injury. Dr. Actually, the injury on male organ depends upon several facts. If a penis is inserted in vagina having small aperture skin covering glans penis may be injured. If the penetration has been done without any injury then thereafter committing the offence of rape, there is no possibility of getting any further injury. Dr. D.C. Arya (PW-10) has found that there was a perennial tear on the private part of the deceased/prosecutrix which indicates that the skin and tissues of her private part were so soft that a big tear was caused on penetration. Also, it was for the appellant to ask such questions to Dr. D.C. Arya (PW-10) as well as Dr. Harish Arya (PW-17) to confirm that in committing the aforesaid offence the appellant could have surely sustained injuries on his penis or not. Also, it is established that the deceased child was the relative of the appellant who was under mental and physical control of the appellant and the appellant was in a position to manage the deceased/prosecutrix so that at the time of insertion he would not get any injury on his private part. Thereafter, the prosecutrix was not in a position to resist. She had to suffer only, hence, there was no possibility for the appellant to receive any injury on his scrotum or thigh. Under these circumstances, looking to the injuries caused to the deceased, it cannot be said that it was necessary in committing the offence of such rape, that the penis of the appellant should have been injured or injury must have been caused on the penis or other parts. Hence, the law laid down in the case of Rahim Beg (supra) which depends upon the opinion of Dr. Katiyar cannot be applied in the present case due to different factual position. 25. Learned counsel for the appellant has submitted that the trial court has concentrated on an underwear found at the spot whereas it was not proved beyond doubt that the underwear found at the spot was of the appellant. The contention of the appellant may be accepted because when the appellant left the spot after putting on his clothes then it was not for him to leave the underwear at the spot. It was for the prosecution to prove that the underwear found at the spot was of appellant. The contention of the appellant may be accepted because when the appellant left the spot after putting on his clothes then it was not for him to leave the underwear at the spot. It was for the prosecution to prove that the underwear found at the spot was of appellant. Also, when the underwear was lying separately and there was no indication of blood etc. of the deceased on the underwear its seizure has no much meaning. In the alternate, if underwear was of the appellant then he removed the underwear thereafter he committed the crime of rape and thereafter he did not put on underwear again then there was no possibility of any blood stain from the origin of the deceased on that underwear. The importance of seizure of underwear was only to show the presence of the appellant on the spot but unfortunately it could not be proved that seized underwear was of the appellant. 26. Learned counsel for the appellant, at this stage, has also submitted that initially Dr. D.C. Arya (PW-10) stated that the deceased had died due to asphyxia but when he was recalled by the court he accepted that the deceased could die due to injuries caused on her private part and uterus. If the appellant had committed intercourse he could not imagine that the prosecutrix would die due to that injury and therefore offence of the appellant does not fall within the purview of Section 302 of IPC, however, such submission cannot be accepted. Dr. D.C. Arya (PW- 10) found a linear wound having internal haemorrhage present below the subcutaneous tissues having size of 8X 2 cm on left to right side of the neck. If the appellant wanted to stop the noise and the sound of cry of the prosecutrix then he would have closed the mouth of the prosecutrix. There was no need to press her neck so hard that internal haemorrhage was caused on the neck below the skin and she would have died due to asphyxia. Hence, looking to the injuries found on the neck of the deceased prosecutrix, it is apparent that the appellant was intended to kill the deceased/prosecutrix otherwise there was no need to press her neck in such a manner. It cannot be said definitely that such throttling was done during the commission of rape or thereafter. Dr. Hence, looking to the injuries found on the neck of the deceased prosecutrix, it is apparent that the appellant was intended to kill the deceased/prosecutrix otherwise there was no need to press her neck in such a manner. It cannot be said definitely that such throttling was done during the commission of rape or thereafter. Dr. D.C. Arya (PW-10) was asked a question that by such throttling hyoid bone ¼daB"B½ should have been broken but he has clearly opined that looking to linear pressure on the neck it was not necessary that hyoid bone ¼daB"B½ should have broken. Hence, looking to the cause of death that deceased died due to asphyxia it is very much clear that during intercourse or thereafter the appellant pressed the throat of the victim by a linear object like core of his palm and killed the deceased and therefore his intention was very well visible and it was to cause death of the deceased/prosecutrix. 27. If it is presumed that the deceased would have died due to rape committed by the appellant then the overt act of the appellant is considered that he inserted his penis in the vagina of the girl aged eight years having short aperture with force and continued to give jerks so that her uterus was torn and ruptured then it is an imminently dangerous act and he should know that in all probability of such act the death of the prosecutrix would be caused and therefore his overt act falls within the fourth ingredient of Section 300 of IPC and therefore, he is liable for offence under Section 302 of IPC. 28. It is an admitted fact that the prosecutrix was only eight years' old. In this connection, the evidence of teacher Shanti Verma (PW-9) and Dr. D.C. Arya (PW-10) cannot be discarded. According to the learned counsel for the appellant the age of the prosecutrix is not disputed. 29. Learned counsel for the appellant has placed reliance upon the various judgments relating to circumstantial evidence. A reliance has been placed upon the judgment of "Tomaso Bruno and another v. State of Uttar Pradesh" [ (2015) 7 SCC 178 ], however, that judgment was depending upon the footage of CCTV camera and due to factual difference law laid down in that judgment cannot be applied in the present case. A reliance has been placed upon the judgment of "Tomaso Bruno and another v. State of Uttar Pradesh" [ (2015) 7 SCC 178 ], however, that judgment was depending upon the footage of CCTV camera and due to factual difference law laid down in that judgment cannot be applied in the present case. Similarly, for appreciation of evidence, reliance has been placed upon the judgment passed by the Apex Court in the case of "Krishan Kumar Malik v. State of Haryana" [ (2011) 7 SCC 130 ] in which the prosecution's story was discarded because the evidence of the prosecution was shaky. In the present case, the entire evidence of the prosecution depends upon the circumstances. Prosecutrix was not available to give her evidence and due to factual difference law laid down in the case of Krishan Kumar Malik (supra) cannot be applied in the present case. 30. On the other hand, learned counsel for the State has placed his reliance upon the judgment passed by the Apex Court in the case of "Dhananjoy Chatterjee alias Dhanna v. State of West Bengal" [ (1994)2 SCC 220 ] in which it is held that if chain of circumstantial evidence is complete then the accused shall be convicted. Learned counsel for the State has also placed reliance upon the judgment passed by the Apex Court in the case of "Shivaji @ Dadya Shankar Alhat v. State of Maharashtra" [ AIR 2009 SC 56 ] in which it is laid down that all the incriminating facts and circumstances are proved beyond doubt and are found incompatible with innocence of the accused or the guilt of any other person then conviction on the basis of circumstantial evidence is justified. 31. In the light of the aforesaid judgments passed in the case of Shivaji @ Dadya Shankar (supra) and Dhananjoy Chatterjee (supra), the chain of circumstantial evidence in the present case, is complete against the appellant and the trial court has rightly concluded that the appellant had killed the deceased/prosecutrix. 32. If all the circumstances which are proved against the appellant are considered simultaneously then it is proved that the appellant had chased the deceased/prosecutrix when she left the house of Raju to fetch a bundle of Bidi form the shop of Sunil and the factum of last seen is proved. 32. If all the circumstances which are proved against the appellant are considered simultaneously then it is proved that the appellant had chased the deceased/prosecutrix when she left the house of Raju to fetch a bundle of Bidi form the shop of Sunil and the factum of last seen is proved. Secondly, he was found by the witness Madanlal (PW-12) at about 09 pm when he was coming out of the place of incident dusting his clothes. Thirdly on his information the dead body of the deceased was discovered. Fourthly the several injuries were found on the body of the deceased and in her vaginal swab semen and sperms were found which indicates that the rape was committed upon her before her death and blood also oozed out of her wounds. It was also proved beyond doubt that the death of the deceased was homicidal in nature. She might have sustained fatal injuries during the offence of rape committed upon her but she was definitely killed by throttling. In the alternate, it was established that the act of the appellant of rape and to continue with such an offence so that even uterus of the prosecutrix was badly torn and ruptured. His overt act falls within the purview of offence of murder. A full pant was recovered from the appellant having stains of human blood. Dr. Harish Arya (PW-17) found four scratches on the face and neck of the appellant. It is also proved that the age of the prosecutrix was eight years and hence rape committed upon her falls within the purview of Section 376(2)(i) of IPC. Out of these circumstances, crucial circumstance is that the dead body was discovered on the information given by the accused. If the appellant was not involved in the crime then how could he know as to where the dead body was kept. Hence, after considering all the circumstances, only conclusion can be drawn that the appellant had committed rape upon the deceased/prosecutrix and killed her. 33. Hence, on the basis of the aforesaid discussion and the circumstances proved against the appellant, the trial court has rightly found that the appellant was guilty of offence under Section 376(2)(i) and Section 302 of IPC. Consequently, the accused is guilty of offence under Section 6 of the POCSO Act which is an analogous provision to Section 376 of IPC. 34. Consequently, the accused is guilty of offence under Section 6 of the POCSO Act which is an analogous provision to Section 376 of IPC. 34. When the appellant is found properly convicted of offence under Sections 302 and 376(2)(i) of IPC, then it would not be appropriate to remand the case for its retrial only because the charge under Section 376-A of IPC was added. Looking to the circumstances of the case, it cannot be said that unless a charge under Section 376-A of IPC is proved the appellant cannot be effectively punished and therefore it would be appropriate to punish the appellant for the offences which are duly proved and charge of such offence initially framed against the appellant. Under these circumstances, we do not find any reason to remand the case for cross-examination of the witnesses for the charge under Section 376-A of IPC and therefore the appellant cannot be held guilty of offence under Section 376A of IPC and it would be appropriate that the charge of Section 376-A shall not be considered while recording the judgment. 35. So far as the sentence is concerned, learned counsel for the appellant has placed reliance upon the various judgments of the Apex Court. In the case of "Amit v. State of Uttar Pradesh" [ (2012)4 SCC 107 ], it is held that there is nothing on evidence to suggest that accused is likely to repeat similar crimes in future and therefore no death sentence was awarded. Similarly, in the case of "Rajkumar v. State of M.P." [ (2014)5 SCC 353 ] it is held that if the court finds that imposition of life imprisonment is totally inadequate then and only then death sentence can be granted. In the case of "Shankar Kisanrao Khade v. State of Maharashtra" [ (2013)5 SCC 546 ], it was held by the Apex Court that death sentence can be imposed in "rarest of the rare" case. In that case the Apex Court had directed that all the sentenced imposed upon the accused for multiple offences to run consecutively. Learned counsel for the appellant referred the judgment passed by the Division Bench of this court in the matter of "Neeraj v. State of Madhya Pradesh" [ 1991 JLJ 564 ] in which it is held that without assigning special reasons death sentence cannot be granted. Learned counsel for the appellant referred the judgment passed by the Division Bench of this court in the matter of "Neeraj v. State of Madhya Pradesh" [ 1991 JLJ 564 ] in which it is held that without assigning special reasons death sentence cannot be granted. On the other hand, learned counsel for the State has referred the judgment passed by the Apex Court in the case of "Vikram Singh @ Vicky and another v. Union of India and others" [ (2015) 9 SCC 502 ] and "Vasanta Sampat Dupare v. State of Maharashtra" [ (2015) 1 SCC 253 ]. In case of Vasanta Sampat Dupare (supra), the death sentence of the accused was confirmed who committed the rape upon a minor girl child of four years and thereafter killed her whereas the accused was 47 years' old man. For ready reference a small portion of para 60 of the judgment rendered by the Apex Court in Vasanta Sampat Dupare (supra) is reproduced as under: "60. In the case at hand, as we find, not only was the rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances." 36. Again, a small portion of para 61 is also reproduced: "61..............There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was history-sheerer and had a number of cases pending against him. That alone may not be sufficient. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was history-sheerer and had a number of cases pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances." 37. Similarly, the Apex Court, in the judgment passed in the case of Vikram Singh @ Vicky (supra), gave eight guidelines in para 52 to consider the severity of sentence. 38. Also, in case of Shivaji @ Dadya Shankar Alhat (supra), it is held by the Apex Court that even in case of circumstantial evidence death sentence can be awarded, if offence having great impact on social order and public interest exemplary treatment is required. In this connection, a little portion of paras 23, 24, 25, and 26 of the judgment passed by the Apex Court in the case of Mohd. Mannan alias Abdul Mannan (supra) may be reproduced: 23. It is trite that death sentence can be inflicted only in a case which comes within the category of rarest of the rare cases but there is no hard and fast rule and the parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as rarest of the rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard and fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue.............. 24. Further crime being brutal and heinous itself does not turn the scale towards the death sentence. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue.............. 24. Further crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious co-existence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance-sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and just balance is to be struck.............. . 25. .............The appellant is a matured man aged about 43 years. He held a position of trust and misused the same in a calculated and preplanned manner. He sent the girl aged about 7 years to buy betel and few minutes thereafter in order to execute his diabolical and grotesque desire proceeded towards the shop where she was sent. The girl was aged about 7 years of thin built and 4 feet of height and such a child was incapable of arousing lust in normal situation. Appellant had won the trust of the child and she did not understand the desire of the appellant which would be evident from the fact that while she was being taken away by the appellant no protest was made and innocent child was made prey of the appellant's lust. 26. .........These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate is to inflict the death sentence which is natural and logical............... 39. Hence, after considering the factual position of this case in the light of the aforesaid judgments passed by the Apex Court, the appellant being a near relative of the deceased/prosecutrix used his relations upon the innocent child. He is a matured youth of 25 years of age. Looking to the perennial tear and position of the uterus almost smashed like vegetable, it is clear that in order to execute his diabolical and grotesque desire, the appellant proceeded towards a lonely place of one Jagdish @ Jagan (PW-6). The girl was about eight years who was incapable of arousing lust in normal situation. Appellant had won the trust of the child and she did not understand the desire of the appellant, hence, while she was being taken away by the appellant no protest was made by the innocent child. The injuries caused to the deceased/prosecutrix show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The act of the appellant is his monstrous self on the innocent, helpless and defenceless child. This act, no doubt, had invited extreme indignation of the community and shocked the collective conscience of the society. Due to that act, a message has gone in the public that girls of such age even are unsafe while moving in the locality and a crowd was collected when the appellant had accepted his guilt and went to show the dead body of the deceased. Thereafter, when the deceased child had already suffered a great pain with a crushed childhood, she was killed by throttling. Under these circumstances, the present case falls within the purview of "rarest of the rare case". Thereafter, when the deceased child had already suffered a great pain with a crushed childhood, she was killed by throttling. Under these circumstances, the present case falls within the purview of "rarest of the rare case". Looking to the overt act of the appellant, a deterrent sentence is necessary to be passed so that a message should go to the society that such crime should not be repeated by anyone and such heinous crime is highly deprecated and therefore the trial court has rightly punished the appellant with death sentence for the offence of murder. We confirm the recording of death sentence against the appellant for the offence under Section 302 of IPC. 40. In the result, the appeal filed by the appellant is hereby partly allowed. His conviction as well as sentence of offence under Section 376-A of IPC is hereby set aside on technical ground whereas the conviction and sentences of offence under Sections 376(2)(i), 302 of IPC and Section 6 of the POCSO Act recorded by the trial court are confirmed. The reference sent by the trial court is partly accepted. Death sentence recorded for the offence under Section 302 of IPC is hereby confirmed by us. Appeal partly allowed. Revenue sent by final Court Partly accepted.