JUDGMENT : Mohammad Rafiq, J. 1. This reference has been received from the court of the Special Judge, POSCO, Jhunjhunu under Section 366 of the Code of Criminal Procedure, for confirmation of the death sentence awarded vide its judgment and order dated 10.08.2016 to the accused Ved Prakash S/o Shiv Charan, who has also separately filed appeal under Section 374 of the Code of Criminal Procedure through Superintendent, Central Jail, Jaipur against the same judgment challenging his conviction, for offence under Section 302 IPC and sentence of death, for offence under Section 366 IPC and sentence of rigorous imprisonment of seven years with a fine of Rs.1,000, in default whereof, to further undergo three months rigorous imprisonment, for offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POSCO Act’) and sentence of life imprisonment with fine of Rs.10,000, in default whereof, to further undergo one year’s rigorous imprisonment, for offence u/s.201 IPC and sentence of seven years with a fine of Rs.1,000, in default whereof, to further undergo three months rigorous imprisonment. 2. Facts giving rise to the appeal are that one Ramavtar S/o Baldu submitted a written report (Ex.P1) to SHO Police Station Sadar, Jhunjhunu on 01.10.2015 in the mid night at about 12.40 AM, alleging therein that his minor daughter aged 6 years was missing from the home since afternoon. She was wearing a `paijama’ of yellow colour and shirt of orange colour. She had small hair and inscription of hindi word `v’ on her left hand and was wearing ‘chappals’ of green colour and speaks hindi. She was searched around at 6.30 PM in Jhunjhunu City and adjoining places, but could not be traced out despite efforts. She was lastly seen around 2.00 pm in the house of her elder daughter Seema. The police on that basis lodged FIR No.204/2015 IPC for offence u/s.363 of IPC and commenced investigation. Dan Singh, ASI of Police noticed a pit freshly covered by sand and leaves near pillar no.9 of the air strip. He informed Madan Lal (PW17) SHO thereabout. When the pit was dug, dead body of a female child aged 6 years was found therein. Ramavtar (PW1) identified the body to be of his daughter Shivani. The site plan (Ex.P3) was prepared. The dead body was taken possession of vide Ex.P2. He informed Madan Lal (PW17) SHO thereabout. When the pit was dug, dead body of a female child aged 6 years was found therein. Ramavtar (PW1) identified the body to be of his daughter Shivani. The site plan (Ex.P3) was prepared. The dead body was taken possession of vide Ex.P2. The blood stained soil and the controlled soil was seized vide Ex.P4 and P5 respectively. 500 ML bottle of `TOSS UP’ cold drink was sealed / seized vide Ex.P6 and a packet of `Kurkure Bingo’ was sealed vide Ex.P7. The dead body was taken to B.D.K. Hospital, Jhunjhunu where inquest was prepared vide Ex.P8. Frock and paijama of the deceased was seized vide Ex.P9. The postmortem report was prepared vide Ex.P12. The samples for DNA were collected and the Medical Board confirmed the rape with the deceased and also gave the cause of death, therefore, the offences under Sections 363, 302, 201 and 376(a) IPC and Section 4 of the POSCO Act were also added to the already registered FIR under Section 363 IPC. 3. Accused was arrested on 1.10.2015 vide arrest memo Ex.P15. Underwear and vest of the accused were seized vide Ex.P16. Informations furnished by the accused under Section 27 vide memos Ex.P28 to Ex.P31 were recorded. Stone used for crushing the dead body was recovered vide Ex.P17. A pair of ‘chappals’ vide Ex.P20, cycle vide Ex.P23, packet of Kurkure and bottle of cold drink TOSS UP vide Ex.P36 and finger prints of the accused were obtained vide Ex.P37. Medical examination of the accused was conducted by memo Ex.P13. Blood, saliava, semen and finger print of the accused, the samples from the body of deceased, recovered clothes and finger prints of deceased were collected for being sent to FSL. The charge sheet against the accused was filed and thereafter charges for offence u/s.363, 366, 302, 201 and 376(2) of IPC and Section 5/6 of POSCO Act were framed. Accused denied the charges and claimed to be tried. The prosecution has produced 17 witnesses and exhibited 68 documents. The accused in his examination under Section 313 Cr.P.C. denied the charges and claimed to be tried. The trial court on conclusion of the trial, convicted and sentenced the accused-appellant in the manner as indicated above. 4. Accused denied the charges and claimed to be tried. The prosecution has produced 17 witnesses and exhibited 68 documents. The accused in his examination under Section 313 Cr.P.C. denied the charges and claimed to be tried. The trial court on conclusion of the trial, convicted and sentenced the accused-appellant in the manner as indicated above. 4. We have heard Shri Pradeep Choudhary, learned amicus curiae for the appellant as well as Shri Anurag Sharma, learned Additional Advocate General, Shri R.S. Raghav and Smt. Sonia Shandilya, learned Public Prosecutor for State. 5. Shri Pradeep Choudhary, learned amicus curiae has argued that the case of the prosecution was solely based on circumstantial evidence. It is well settled law that in case of circumstantial evidence, the prosecution is required to prove the circumstances projected by it beyond reasonable doubts. The proven circumstances should establish a close link with each other and form a complete chain unerringly pointing to the guilt of the accused. There should not be any other hypothesis, which is inconsistent with the guilt of the accused. When the prosecution case is examined by keeping these broad principals in mind, it does not inspire confidence. Since there are lot of missing links in the prosecution story, it makes the prosecution story doubtful. Learned amicus curiae argued that the prosecution has produced Ram Kori Devi (PW3) as the witness of last seen. This witness runs a grocery shop in the same vicinity, where the deceased alongwith her parents was living and the accused Ved Prakash, who happened to be husband of elder sister of the deceased, was also living in the same vicinity along with his wife. The houses of victim as well as accused are at a stone throw distance. This witness says that she had seen the deceased Shivani with accused Ved Prakash in the afternoon of 30.09.2015 at around 2.00 PM. She came with her Jeeja (brother in law) Ved Prakash and purchased a packet of kurkure and a bottle of cold drink TOSS UP. She also stated that Ved Prakash took Shivani on his bicycle towards airstrip. Ram Kori (PW3) further states that in the evening she had specifically asked Ved Prakash as to why he did not search his sister-in-law Shivani, who was missing, on which it is alleged that Ved Prakash said that he was unwell. She also stated that Ved Prakash took Shivani on his bicycle towards airstrip. Ram Kori (PW3) further states that in the evening she had specifically asked Ved Prakash as to why he did not search his sister-in-law Shivani, who was missing, on which it is alleged that Ved Prakash said that he was unwell. The prosecution has thus tried to establish the fact that deceased Shivani was lastly seen with accused Ved Prakash at around 2PM. who has taken her towards the airstrip. Other witnesses Ram Avtar (PW1), father of deceased and Sheela, mother of deceased (PW2), have stated that Ram Kori told this fact to them. Once it is established that the accused was lastly seen together with the deceased, it was for him to explain the circumstances leading to her death. The accused, in his examination under Section 313 of the Code of Criminal Procedure, has merely alleged false implication but gave no explanation as to how and in what manner he parted company with the deceased. Learned counsel argued that all this evidence would not be enough to hold him guilty because complainant Ram Avtar, Sheela and other residents of the colony by the evening itself were searching for Shivani as she was missing but still nobody raised a finger of doubt on Ved Prakash and no explanation was sought from him. The missing report was lodged at 12.45 AM in the mid night, still the name of accused Ved Prakash was not mentioned in the FIR nor was it mentioned therein that she was lastly seen with Ved Prakash. 6. Learned amicus curiae argued that no incriminating circumstance is there against the accused regarding the recovery of blood stained stone allegedly used in crushing the head of the deceased. Such recovery was made on 02.10.2015 at 5.15 PM vide recovery memo Exhibit (P17). Moreover, recovery of one pair of green `chappals’ (bathroom slipper) belonging to deceased Shivani was also made on 02.10.2015 at 05.45 PM vide recovery memo Exhibit P20 at the instance of accused. It is argued that both these recoveries are highly doubtful as they have been made from the open place, which is adjacent to the place of incident itself. The evidence has come on record that hundreds of villagers and police men were searching for deceased Shivani since morning of 01.10.2015. It is argued that both these recoveries are highly doubtful as they have been made from the open place, which is adjacent to the place of incident itself. The evidence has come on record that hundreds of villagers and police men were searching for deceased Shivani since morning of 01.10.2015. This fact has been stated by Raja (PW19), Babul @ Banwasi (PW20), Ram Avtar (PW1), Shila (PW2), Mani Ram (PW4) and others. But it cannot be believed that still nobody noticed the green `chappals’ which are specifically mentioned in the FIR and blood stained stone, which were lying within a distance of few feet from the dead body. It is significant to note that other articles viz; packet of kurkure and bottle of toss (which were allegedly purchased from the shop of Ram Kori PW-3) were discovered from the same spot on 01.10.2015 itself and seized vide Ex.P6 and Ex.P7 at around 11 AM but nobody noticed the articles, which are allegedly seized at the instance of accused, although they were lying at the same place/vicinity. The stone allegedly having blood on it was also lying there, but there are no injuries of stone on the body of deceased Shivani as per postmortem report Ex.P-12/1 and Ex.P12/2. Third incriminating circumstance against the accused as per the prosecution is the chance finger print allegedly found on the bottle of TOSS UP cold drink. These finger prints were lifted from the bottle of cold drink vide memo Ex.P36 on 01.10.2015 itself at around 10.40 AM i. e. soon after the dead body of Shivani was found. The finger prints were lifted by Raghuveer Singh ASI (PW18) in the presence of attesting witnesses Raja (PW19) and Babool @ Banwari (PW20), none of these witnesses were examined by the prosecution during the course of trial. It is only during the pendency of appeal that an application u/s 391 read with section 311 Cr.P.C. was moved by the prosecution which was allowed by this Court vide its order dated 01.05.2017 directing that the aforesaid three witnesses be examined by the trial court. Still there are lot of discrepancies and contradictions in their statements regarding the lifting of chance finger print from the bottle of TOSS UP cold drink. 7. Still there are lot of discrepancies and contradictions in their statements regarding the lifting of chance finger print from the bottle of TOSS UP cold drink. 7. Shri Pradeep Choudhary, learned amicus curiae argued that Raghuveer Singh (PW18) ASI, who has prepared the memo Ex.P36 and lifted the finger prints, stated in his court statement that bottle of cold drink TOSS UP was easily available in the market. The said bottle was not handed over to him by anybody but it was lying at a vacant place and there were weed, grass and shrubs near the bottle. He has also stated that he was not an expert in the field of finger print. Only laboratory person can identify the real finger print. He further admitted that the bottle cannot be lifted with one thumb but still there was no other finger print available on the battle. In the present case only thumb impression was found on the bottle inasmuch the finger print of only thumb impression on the bottle was lifted, which casts a doubt on the prosecution story as it is humanly impossible to lift a bottle with just one thumb. Raghuveer (PW-18) clearly rules out the presence of any other finger print on the bottle whereas Ram Kori (PW-3) stated that deceased Shivani took the said bottle of TOSS UP from her shop and went with accused Ved Prakash on his bicycle. If her version is taken to be true, then there must be some other finger prints also available on the bottle as the deceased Shivani herself took the bottle in her hand. Moreover, it is also not clear as to when the statement of Ram Kori (PW3) u/s 161 Cr.P.C. (Ex.D2) was recorded as no time has been indicated therein. It is argued that other attesting witnesses were also not reliable and their statement contradict with that of Raghuveer (PW-18), Raja (PW-19) and Babloo @ Banwasi (PW-20), who are relatives of deceased Shivani. They have said that bottle of TOSS UP was lying in the pit. Raja (PW-19) stated that pit was about 7 to 8 feet deep and bottle was taken out from the said pit by police. Babloo (PW-20) also stated that bottle was lying in the pit which was taken out by a police men, which is contrary to the statement of Raghuveer (PW18) and the seizure memo of bottle (Ex-P6). Raja (PW-19) stated that pit was about 7 to 8 feet deep and bottle was taken out from the said pit by police. Babloo (PW-20) also stated that bottle was lying in the pit which was taken out by a police men, which is contrary to the statement of Raghuveer (PW18) and the seizure memo of bottle (Ex-P6). The accused therefore cannot be connected with the said crime only on the basis of finger prints as the lifting of chance finger prints itself is doubtful. Learned counsel in regard to law on the circumstantial evidence has relied on the judgments of Supreme Court in Sk. Yusuf Vs State of West Bengal- AIR 2011 SC 2283 , Sharad Birdhichand Sarda Vs State of Maharashtra- AIR 1984 SC 1622 , Hanuman Govind, Nargundkar & Anr. Vs State of M.P.- AIR 1952 SC 343 and Shyamlal Saha & Anr Vs State of West Bengal- (2014) 12 SCC 321 . 8. Shri Pradeep Choudhary, learned amicus curiae has argued that the prosecution has tried to link the accused with the crime with the help of DNA matching. It is well settled that DNA test is the most authentic test available today and chances of matching of wrong DNA are one in billion but if due care and caution is not exercised while collecting, preserving and depositing the samples in FSL laboratory, then the results may vary. It is argued that the Supreme Court has time and again cautioned that the conviction solely on the basis of DNA matching is dangerous when the procedure prescribed for collection of sample has not been followed strictly as a slight deviation of negligence from the standard protocol may vary the result. Reliance in this connection is placed on the judgment of the Supreme Court in Rajeev Singh Vs State of Bihar- (2015) 16 SCC 369 in which case the Supreme Court has disbelieved the DNA report for the reason that due care and caution was not exercised while handling the samples and due procedure was not followed while forwarding the samples to FSL laboratory. Reliance is also placed on the judgment in Anil @ Anthony Arik Swamy Joseph Vs State of Maharashtra-2014 Cr.LJ 1608 SC, wherein the Supreme Court has observed that DNA results can vary if due care and caution is not exercised while taking samples. 9. Reliance is also placed on the judgment in Anil @ Anthony Arik Swamy Joseph Vs State of Maharashtra-2014 Cr.LJ 1608 SC, wherein the Supreme Court has observed that DNA results can vary if due care and caution is not exercised while taking samples. 9. Learned amicus curiae has argued that the DNA matching report Ex.P33A is not conclusive and hence not reliable. It is concluded in the report that “the DNA test performed on the exhibits provided is sufficient to conclude that the source of Exhibit No. 17 (Blood sample of Sh. Ved Prakash) cannot be excluded as being possible contributor of DNA profile obtained from Exhibit No.1 (underwear of deceased), 12 (Vaginal swab of deceased) and 13 (Vaginal smear of deceased)". It is clear that the result of DNA matching is not conclusive and the accused is only a possible contributor, meaning thereby there may be some other contributors also. It is not a case where it is concluded by the DNA test matching that the accused is the only contributor. When DNA test is undoubtedly a 100% authentic and most advance test, there should not be any room for any other possibility and conviction solely on the basis of such report may be dangerous. There are guidelines by the centre for DNA Finger printing and diagnostics (CDFD), which is an autonomous institute under the Ministry of Science and Technology, Government of India. Submission of the prosecution that there are also guidelines even by Department of Emergency Services and Public Protection and in Rajasthan the guidelines are also provided by the FSL at Jaipur regarding collection and handling of DNA samples but in the present case no such guidelines have been followed. The blood sample of accused Ved Prakash for DNA test was taken by Dr. Banshidhar (PW7) at the time of his medical examination for potency test vide Ex.P13, Dr. Bansidhar (PW17) has stated in his court statement that he took the samples and put them in Jars and sealed them. He also states that he prepared a separate report regarding this and gave it to the police apart from giving details on Ex.P-13, but curiously no such report has been produced by prosecution. Besides, it is also not clear from Ex.P13 as to whether the blood samples were collected in EDTA viles and kept in refrigerator as prescribed under the guidelines. Besides, it is also not clear from Ex.P13 as to whether the blood samples were collected in EDTA viles and kept in refrigerator as prescribed under the guidelines. It is argued that the samples were required to be kept in refrigerator and deposited in the FSL laboratory within 24 hours but the said procedure was not followed and samples were deposited after delay on 05.10.2015 whereas it was collected on 03.10.2015. 10. Learned counsel further submitted that since the body of deceased Shivani was fully covered in dust and she was not wearing any undergarment as evident from recovery memo of dead body Ex.P2 and seizure memo of underwear Ex.P-3/1 and P- 3/2, as per the seizure memo, there was so much of dust and sand on the body of the deceased that her injuries could not be seen clearly and the same were later on seen in the hospital after cleaning the body. In such circumstances, the possibility of contamination of samples in vaginal swab and vaginal smear as well as the underwear of deceased cannot be ruled out. It is therefore clear that neither the samples were collected properly nor they were handled and delivered in the FSL Laboratory as per the guidelines. The carrier was not having any photo identification and even the deposit slip Exhibit P42 to P64 do not bear any date or time. Owing to all these reasons, the DNA matching report is also not reliable. In support of his submissions, learned amicus curiae has relied on the judgments of Supreme Court in Rajeev Singh Vs State of Bihar (2015) 16 SCC 369 and Anil @ Anthony Arik Swamy Joseph Vs State of Maharashtra 2014 Cr.LJ 1608 SC Para 17. 11. Learned amicus curiae argued that injuries were received by the accused Ved Prakash as well as the deceased Shivani. Dr. V. D. Baliya (PW6), who has conducted the postmortem of deceased Shivani and has prepared the postmortem report (Ex.P-12/1 and Ex.P-12/2), has deposed that apart from injuries regarding throttling and a defused bruise on chest, the deceased was not having any other injury except the injuries on the private parts. She was having injuries on Suprapubic Region, Vulvar Region, Perineal Region and her Hymen was also ruptured as per postmortem report Ex.P-12/2. She was having injuries on Suprapubic Region, Vulvar Region, Perineal Region and her Hymen was also ruptured as per postmortem report Ex.P-12/2. He has stated that injuries present on the external and internal part of the genitals of deceased Shivani were indicating that some hard object has been inserted in the Vagina of deceased Shivani. In this regard if the medical jurisprudence of Modi is considered then in Chapter-30 relating to sexual offences in the Heading Rape, Sub Heading Examination of accused, it is provided at point ix and x that injuries to the genital part may result from force exerted by accused or from force applied by the victim in the cases of forcible introduction of the organ into the narrow vagina of a virgin, specially of a child and if the accused is not circumcised the smegma around the corona glandis is also found provided the accused is examined within 24 hour of the incident. In the present case, Dr. Bansidhar (PW7) who examined the accused and prepared the sex assault report of the accused Ex.P13 has clearly deposed that when he examined the male organ of Ved Prakash it was in a normal condition and there was no blood on it and there was no injury on the organ. Therefore, it is doubtful as per the medical examination of the accused that he had committed forceful sexual inter-course with the deceased girl yet did receive any injury on his private parts, specially when the deceased girls was only 7 years of age and there were several injuries on her private parts. Learned amicus curiae has relied on the judgment of the Supreme Court in Rahim Beig Vs The State of U.P. and Mahadeo Vs The State of U.P. wherein it was observed that “when rape has been alleged to be committed by a fully developed man on a girl of 10 or 12 years, who was virgin and her hymen was intact, absence of injuries on the male organ of the accused would point to his innocence. He has also relied on the judgment of Supreme Court in Rahim Beig Vs The State of U.P and Mahadeo Vs State of U.P. Cr.L.J 1972 Supreme Court Page 1260. 12. He has also relied on the judgment of Supreme Court in Rahim Beig Vs The State of U.P and Mahadeo Vs State of U.P. Cr.L.J 1972 Supreme Court Page 1260. 12. Relying on the judgment of the Supreme Court in Bachchan Singh vs. State- AIR 1980 SC 898 , Shri Pradeep Choudhary, learned amicus curiae argued that the Supreme Court in that case though upheld the constitutional validity of the death sentence, but observed that the Court must do a balancing act between the aggravating and mitigating circumstances in a crime and due regard must be paid to both crime and criminal while making a choice of punishment. It was also laid down by the Supreme Court that for persons convicted in murder, life imprisonment is the rule and death sentence is exception. Learned amicus curiae has also relied on the judgment of the Supreme Court in Machchi Singh vs. State of Punjab- AIR 1983 SC 957 wherein the Supreme Court has laid down certain guidelines, which may be taken into consideration before imparting death penalty in a murder case. None of which are attracted in the present case. In fact, after the judgment in Machchi Singh, supra, the death penalties are awarded in rarest of the rare case only by assigning special reasons for their choice made in favour of the death penalty. It is however submitted that the cases in which the death sentence is not confirmed, a sentence of life imprisonment was awarded by the courts for the offence of murder. It is however submitted that the cases in which the death sentence is not confirmed, a sentence of life imprisonment was awarded by the courts for the offence of murder. In absence of any specific period being mentioned by the courts for life imprisonment in their judgments, the life imprisonment usually lasted for 14 years as per the combined effect of Section 53 and 55 of the Act, but the Supreme Court in Swamy Shraddananda vs. State of Karnataka- AIR 2008 SC 3040 clarified that the punishment of imprisonment for life handed down by the courts means the sentence of imprisonment for the convict for the rest of his life and also held that section 57 of IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years only and also held that the court can substitute a death sentence by life imprisonment or by a term in excess of 14 years with direction that the convict must not be released from the imprison for the rest of his life or for the actual term as specified in the order. 13. Learned amicus curiae then argued that the Supreme Court in Neel Kumar @ Anil Kumar vs. State of Haryana- (2012) 5 SCC 766 relying on the judgment of Swamy Shraddananda, supra commuted the death penalty with life imprisonment for a minimum term of thirty years. The case pertains to rape and murder of a girl of 4 years by father, yet the case was not found to be rarest of a rare case in the facts of the case. The Supreme Court in Shankar Kisan Rao Khade vs. State of Maharashtra-2013 Cri.L.J.2595 commuted the death sentence to life imprisonment with a direction that he shall not be released for rest of his life. The case was of repeated rape and sodomisation and then murder by strangulation of a minor girl of 11 years with intellectual disability by a men of 52 years. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and further held that special reasons are required to be recorded for awarding death sentence, but no special reasons are required to be recorded for awarding life imprisonment. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and further held that special reasons are required to be recorded for awarding death sentence, but no special reasons are required to be recorded for awarding life imprisonment. Learned amicus curiae has relied on judgment of the Supreme Court in Tattu Lodhi vs. State of Madhya Pradesh, Criminal Appeal Nos.292-293 of 2014 decided on 16.09.2016 where also the Supreme Court commuted the death sentence into life imprisonment for a term of 25 years in a case of rape and murder of a minor girl of 7 years by a person of 27 years. Learned amicus curiae therefore alternatively argued that if the Court is inclined to uphold the conviction of the accused-appellant, the case being not “rarest of the rare” category, sentence of life imprisonment would be sufficient penalty keeping in view the gravity of the offence against the accused-appellant. 14. Shri Anurag Sharma, learned Additional Advocate General, assisted by Mr. Aniroodh Mathur, Mr. Krishnaveer Singh and Mr. Praneet Sharma, as also Mr. R.S. Raghav and Mrs. Sonia Shandilya, learned Public Prosecutors for the State, supported the confirmation of the death sentence and opposed the appeal filed by the accused-appellant Ved Prakash. He contended that the accused was charged with the murder and rape of a female child Shivani aged only 6 years and therefore he has rightly been convicted for offence u/s.302 and 376 IPC. In the chain of circumstances each and every circumstance against the accused-appellant has been individually proved by clinching and convincing evidence and that when joined together, they form a complete chain of circumstances so as to rule out every other hypothesis that may be compatible with his innocence. 15. Learned Additional Advocate General referred to the statement of Ram Kori (PW3) argued that Ramkori was the shopkeeper from whose shop the deceased purchased and packet of Kurkure and cold drink bottle of TOSS UP on the day of incident. Seema (PW16), wife of the accused and sister of deceased had seen her in the company of the accused while she left home. The testimony of these two witnesses clearly establish that deceased and accused were together at about 1.00 to 2.00 pm on 30.09.2015. Thereafter, she was not seen alive by anyone. Seema (PW16), wife of the accused and sister of deceased had seen her in the company of the accused while she left home. The testimony of these two witnesses clearly establish that deceased and accused were together at about 1.00 to 2.00 pm on 30.09.2015. Thereafter, she was not seen alive by anyone. The proximity of time in case of last seen evidence assumes significance, particularly in keeping in view the time of death note in the postmortem report (Ex.P12). Accused had special knowledge of the fact as to when and in what way, he parted company with the deceased. He has failed to discharge that burden as envisaged under Section 106 of the Evidence Act because he failed to give any explanation of these circumstances in his statement u/s.313 of the Code of Criminal Procedure. A presumption therefore has to be drawn against him that he alone had accompanied the deceased till her death and committed a ghastly crime. 16. Learned Additional Advocate General referred to the various seizure memos i.e. seizure memo of bottle of cold drink (Ex.P6), seizure memo of shirt and pant of the accused recovered at his instance (Ex.P10), seizure memo of stone by which the deceased was murdered recovered at the instance of accused (Ex.P17), seizure memo of pair of slippers worn by Shivani recovered at the instance of the accused (Ex.P20) and the packet of kurkure (Ex.P7) and argued that all the aforesaid recoveries clearly prove the guilt of the accused-appellant for committing rape upon Shivani and thereafter committing her murder. 17. Learned Additional Advocate General referred to the reports of Forensic Science Laboratory (Ex.P32 and P33), where 15 articles were sent, the DNA examination report (Ex.P34) and the DNA examination report (Ex.P34). It is argued that as per the aforesaid reports, DNA of the accused matched with the DNA profile obtained from vaginal swab of the deceased, the vaginal smear of the deceased and the underwear of the deceased. Thus there is conclusive scientific evidence to establish the guilt of the accused beyond reasonable doubt. 18. Learned Additional Advocate General referred to Ex.P36, the memo of finger print and argued that during investigation, police has recovered a bottle of cold drink TOSS UP purchased by the deceased from the shop of Smt. Ramkori (PW3). The said bottle contained the finger print impression, which on comparison was found to be of accused. 18. Learned Additional Advocate General referred to Ex.P36, the memo of finger print and argued that during investigation, police has recovered a bottle of cold drink TOSS UP purchased by the deceased from the shop of Smt. Ramkori (PW3). The said bottle contained the finger print impression, which on comparison was found to be of accused. Learned Additional Advocate General argued that the accused after committing the crime had disappeared from his residence house at around 6.00 AM on the next day of incident without informing his wife. He was later arrested by the Police in the afternoon from a distant place. The accused could not provide a satisfactory explanation for the same. In this connection, learned Additional Advocate General has referred to the statement of Ramavtar (PW1), father of the deceased, Sheela (PW2), mother of Shivani and Seema (PW16), wife of accused and sister of Shivani, thus conduct of the accused himself did show his guilt. 19. Shri Anurag Sharma, learned Additional Advocate General referred to the statements of Ramavtar (PW1), father of deceased Sheela (PW2), mother of Shivani, Ramkori (PW3), who had lastly seen the accused with deceased, Dr. V.D. Bajiya (PW6), who conducted the autopsy over the dead body of the deceased, Dr. Banshidhar (PW7), who conducted the medico legal examination of accused, Ami Lal (PW10), the witness of recovery of dead body, Seema (PW16), wife of the accused and Madan Lal (PW17), the Investigating Officer, Raghuveer Singh (PW18), the police personnel, who prepared the seizure memo of bottle, Raja (PW19), the witness of seizure memo of the bottle and Babloo (PW20), the witness in the seizure memo of the bottle and argued that the chain of circumstances against the accused is so complete, which rules out every possible hypothesis, that may be compatible with his innocence and, therefore, the learned Additional Sessions Judge was justified in convicting him for the alleged offence. 20. On the question of sentence, learned Additional Advocate General argued that learned Additional Sessions Judge was justified in holding that this was a 'rarest of rare cases' and death penalty was rightly awarded to the accused. The rape of a girl child aged 6 years and thereafter her murder shocked the collective conscious of the society. Thus, the penalty of death in such a heinous crime was fully justified. The rape of a girl child aged 6 years and thereafter her murder shocked the collective conscious of the society. Thus, the penalty of death in such a heinous crime was fully justified. Alternatively, learned Additional Advocate General argued that if this court is persuaded to reduce it to life imprisonment, such reduction should be with the rider and condition as given by the Supreme Court in Shri Bhagwan v. State of Rajasthan– AIR 2001 SC 2342 , that accused must not be released before he completes twenty years of imprisonment. 21. We have given our thoughtful consideration to rival submissions, carefully studied the impugned judgment as also the evidence on record and respectfully studied the cited precedents. 22. The prosecution case is primarily based on the testimony of last seen witness i.e. Ram Kori (PW-3), Ram Avtar (PW-1), Sheela (PW-2) and Seema (PW-16), the latter three of them being close relative of the deceased. Ram Kori (PW-3) categorically stated that Shivani came to her at 2:00 PM on 30th day. She bought a bottle of cold drink of ‘TOSS UP’ and packet of ‘kurkure’ and offered to pay a sum of Rs.20/-, whereas the value of two items was more. The accused was standing in front of the shop on the bicycle, who gave a currency note of Rs.100/- to Shivani. Shivani gave that note of Rs.100/- to this witness. After deducting Rs.30/-, the value of two items, this witness refunded the remaining amount of Rs.70/- to Shivani. This witness further stated that Shivani took both the items and went with her brother-in-law on bicycle towards airstrip. This witness then stated that in the evening of that day she asked Ved Prakash as to why he was sitting idle when everybody was searching for Shivani, who was found missing. On this, Ved Prakash told this witness about his indisposition and said that it was for that reason that he was not searching her. This witness was subjected to intensive cross-examination but has remained unshaken. She has denied the suggestion that she was making a false statement at the askance of Sheela (PW-2), mother of the deceased. 23. Sheela (PW-2) has stated that on the fateful day, Shivani had gone to the house of her elder sister Seema (PW-16). This witness was subjected to intensive cross-examination but has remained unshaken. She has denied the suggestion that she was making a false statement at the askance of Sheela (PW-2), mother of the deceased. 23. Sheela (PW-2) has stated that on the fateful day, Shivani had gone to the house of her elder sister Seema (PW-16). She came to her with currency note of Rs.500/- and told that accused Ved Prakash has given this money to her for being given to this witness. Shivani told her that Ved Prakash and Seema were going to market and that she would also go with them. Sheela (PW-2) has corroborated what has been told by Ram Kori. This witness further stated that it was Ram Kori, who informed her that Shivani was seen in the company of Ved Prakash. It is thereafter that she went to the room of Seema and enquired about Shivani. Seema told this witness that Shivani did not accompany her to the market. Ved Prakash also came there in the evening and was pretending as he was also searching for Shivani. This witness further stated that Ram Kori told her that Ved Prakash had bought a cold drink bottle of ‘TOSS UP’ and a packet of ‘kurkure’ for Shivani and then took her on the bicycle towards airstrip. On the following morning at 6:00 AM, Ved Prakash left the rented room and switched off his cellphone. She doubted that it was Ved Prakash who took her daughter. 24. Ram Avtar (PW-1), the complainant, has also stated that Ved Prakash was residing in a rented accommodation nearby their house. On the day of incident, he went to earn his livelihood and returned in the evening at about 5:00 PM. Her wife told him that Shivani had gone to market with Ved Prakash and Seema, but when Seema returned from the market in the evening around 6:00 PM, this witness enquired from Seema about Shivani. Seema denied having taken Shivani to the market. When they were trying to search for Shivani, Ram Kori, who used to run a shop in the house where Ved Prakash was tenant, told that Ved Prakash had bought a bottle of cold drink ‘TOSS UP’ and a packet of ‘kurkure’ for Shivani and took Shivani on his bicycle towards airstrip. 25. When they were trying to search for Shivani, Ram Kori, who used to run a shop in the house where Ved Prakash was tenant, told that Ved Prakash had bought a bottle of cold drink ‘TOSS UP’ and a packet of ‘kurkure’ for Shivani and took Shivani on his bicycle towards airstrip. 25. Seema, who is wife of accused Ved Prakash and elder sister of deceased Shivani, appeared in the witness box as PW-16. She has stated that on 30.09.2015 she went to market at 12:00 in the noon. When she returned back, she did not find her husband Ved Prakash and younger sister Shivani in the room. On the following day i.e. 01.10.2015 in the morning at 11:00 AM, this witness learnt that the dead body of Shivani has been found near the airstrip. This witness further stated that on 01.10.2015 Ved Prakash had left the house at 6:00 AM. Even this witness was subjected to detailed cross-examination but has remained unshaken. 26. The evidence of these four witnesses thus clearly show that it was accused Ved Prakash who bought a cold drink bottle and a packet of ‘kurkure’ and took Shivani with him towards airstrip. As per Sheela (PW-2), Shivani had gone to her elder sister Seema (wife of accused), where Seema and Ved Prakash were residing in a rented room. The accused-appellant gave Shivani a currency note of Rs.500/- to be given to Sheela, which he had borrowed from Sheela. Shivani gave that currency note to her mother Sheela and at that time Shivani told Sheela that Ved Prakash and Seema were going to market and Shivani would also accompany them, but as per the statement of Seema, she alone went to the market around 12:00 in the noon on 30.09.2015 and returned back at 6:00 in the evening. When Seema came back, she did not find either accused Ved Prakash or Shivani in the rented room. It is in this interregnum that Shivani was seen in the company of Ved Prakash, who bought for Shivani a bottle of cold drink and a packet of ‘kurkure’. When Seema came back, she did not find either accused Ved Prakash or Shivani in the rented room. It is in this interregnum that Shivani was seen in the company of Ved Prakash, who bought for Shivani a bottle of cold drink and a packet of ‘kurkure’. In fact, it was proved by Ram Kori (PW-3) that Shivani visited her shop to buy these two items and gave a currency note of Rs.20/- but when Ram Kori told Shivani that the value of these two items was Rs.30/-, then Shivani went to Ved Prakash, who was standing nearby the shop, who gave Shivani a currency note of Rs.100/- and Shivani gave this witness that note and this witness deducted a sum of Rs.30/- and refunded the remaining amount of Rs.70/- to Shivani. Ram Kori (PW-3) has categorically stated that thereafter accused Ved Prakash took Shivani on his bicycle towards airstrip, which was the place where eventually the dead body of Shivani was discovered. 27. Ram Kori (PW-3) was confronted with her earliest version given to the police under Section 161 of the Code of Criminal Procedure (Exhibit D-2), which was recorded on 01.10.2015 that why she did not tell the police that accused Ved Prakash had also come to her shop with Shivani, this witness stated that it was told by her to the police but why the police did not mention that therein is not known to her. She stated that it is true that when she told Shivani that the value of the two items was Rs.30/- and not Rs.20/- then Shivani went to Ved Prakash and came back with the currency note of Rs.100/- and this witness deducted the amount of Rs.30/- and refunded her Rs.70/- and thereafter this witness did not see Shivani. This was the exact version given by Ram Kori (PW-3) to the police in her statement recorded under Section 161 of the Code of Criminal Procedure, wherein she also stated that accused Ved Prakash then took Shivani on his bicycle towards airstrip. 28. The dead body of Shivani was recovered on 01.10.2015 itself around 10:00 AM, which is evident from recovery memo of the dead body of deceased Shivani (Exhibit P-2). 28. The dead body of Shivani was recovered on 01.10.2015 itself around 10:00 AM, which is evident from recovery memo of the dead body of deceased Shivani (Exhibit P-2). Madan Lal (PW-17), the then Station House Officer, Police Station Sadar, Jhunjhunu, has proved recovery of the dead body of Shivani vide Exhibit P-2 as also the seizure memo of one underwear of Shivani with site plan vide Exhibit P-3. Orange coloured empty bottle of cold drink ‘TOSS UP’ of 500 ml was also recovered from nearby the place of incident vide Exhibit P-6 and an empty packet of ‘Bingo TEDHE MEDHE Masala Tadka’ was recovered vide Exhibit P-7. All these recoveries have been proved by attesting witnesses Ram Avtar (PW-1), Mani Ram (PW-4) and Ami Lal (PW-10). Even these witnesses have fully supported the case of the prosecution. Mani Ram (PW-4) has stated that he along-with the parents of the deceased and several other persons was searching for Shivani. When she was not found, the report was lodged with the police and they accompanied the police towards the airstrip in the night of 30.09.2015 around 9 O’clock. Then on the following morning also they went towards the airstrip. A freshly dug pit was noticed, which was covered with the sand and the leaves. When the sand was removed, the dead body of Shivani was found therein. The empty wrapper of ‘kurkure’ and the empty bottle of the cold drink were also recovered from nearby the place. Ami Lal (PW-10), another attesting witness, has also made similar statement. Madan Lal (PW-17), the Investigating Officer, has stated that he recovered the frock and paijama, which the deceased was wearing at the time of the incident vide Exhibit P-9). On the information of Ved Prakash (information memo Exhibit P-28), he also recovered the underwear and vest, which he was wearing at the time of incident vide Exhibit P-16. The accused gave information under Section 27 of the Evidence Act about clothes worn by the deceased at the time of incident and the cycle so used in commission of offence, vide Exhibit P-29. He recovered his pants and shirt, the accused was wearing at the time of incident, from the room vide Exhibit P-10. The cycle, which was used in commission of offence, was also recovered vide Exhibit P-23. He recovered his pants and shirt, the accused was wearing at the time of incident, from the room vide Exhibit P-10. The cycle, which was used in commission of offence, was also recovered vide Exhibit P-23. Exhibit P-29 is the memo of information given by accused under Section 27 of the Evidence Act about place where the ‘chappal’ of Shivani were thrown and concealed by the accused, on the basis of which on pair of ‘chappal’ was recovered vide Exhibit P-20. The accused gave information under Section 27 of the Evidence Act vide Exhibit P-31 about stone used by him to kill Shivani and that was seized vide Exhibit P-17. 29. The report of the State Forensic Science Laboratory (Exhibit P-32) begins with the inscription that the packet(s) five in number marked A, F, G, C, D, were properly sealed and were bearing seal impression, which tallied with the specimen seal impression forwarded. The FSL report indicates that semen was detected from underwear in Exhibit no.1 (from packet marked ‘A’), underwear in Exhibit no.4, ‘baniyan’ in Exhibit no.5 (from packet marked ‘G’), vaginal swab in Exhibit no.6 (from packet marked ‘C’), and vaginal smear slide in Exhibit no.7 (from packet marked ‘D’), but semen was not detected in the frock and paijama, which the deceased was wearing at the time of incident. The other articles, on which the semen was detected, were sent to Serology Division for necessary examination. Exhibit P-34 is the report of the State Forensic Science Laboratory dated 04.02.2016, under the caption “DESCRIPTION OF ARTICLES”, which indicates that fifteen packets were received by the FSL in properly sealed condition bearing seal impression, which tallied with the seal sample forwarded. It further indicates that serological tests were performed on the exhibits for the presence of human blood. Exhibits no.1 (Underwear of Deceased), 4 (Frock), 5 (Paijami), 6 (Underwear), 7 (Baniyan), 12 (Vaginal swab of Deceased) and 13 (Vaginal smear of Deceased) were sent to Biology Division of FSL, Jaipur for semen detection. Semen was detected on Underwear of Deceased, Underwear and Baniyan of accused, Vaginal swab and Vaginal smear of deceased. Exhibit No.2 (Blood smeared soil) and 3 (Control soil) were forwarded to Physics Division of FSL, Jaipur for further necessary examination. Exhibit No.14 (Saliva on gauge), 15 (Blood on gauge) and 16 (Semen on gauge) were not used and sent back without examination. Exhibit No.2 (Blood smeared soil) and 3 (Control soil) were forwarded to Physics Division of FSL, Jaipur for further necessary examination. Exhibit No.14 (Saliva on gauge), 15 (Blood on gauge) and 16 (Semen on gauge) were not used and sent back without examination. DNA was extracted from Exhibit No.1 (Underwear of Deceased), 6 (Underwear), 7 (Baniyan), 12 (Vaginal swab of Deceased), 13 (Vaginal smear of Deceased) and control blood samples. Microsatellite loci of AmpFeSTR Identifiler plus kit were used for DNA profiling of these samples. Data was analysed by GeneMapper ID-X software. The result of examination reads thus, “Serological tests: Human Blood was detected on Exhibit No.2 (Blood smeared soil), 4 (Frock), 5 (Paijama), 6 (Underwear), 7 (Baniyan), 8 (A stone piece), 9 (Pant) and 10 (Shirt). DNA tests: 1. Same male DNA profile was obtained from exhibit No.1 (Underwear of Deceased), 12 (Vaginal swab of Deceased), 13 (Vaginal smear of Deceased) and 17 (Blood sample of Shri Vedprakash).” 2. No DNA profile was obtained from exhibit No.6 (Underwear), 7 (Baniyan).” The conclusion of the report reads thus, “The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit No.17 (Blood sample of Shri Vedprakash) cannot be excluded as being possible contributor of DNA profile obtained from exhibit No.1 (Underwear of Deceased), 12 (Vaginal swab of Deceased) and 13 (Vaginal smear of Deceased).” 30. This report is admissible under Section 293 of the Code of Criminal Procedure. According to the said report, semen was detected on underwear of deceased, underwear and baniyan of accused, vaginal swab and vaginal smear of deceased, which were found in the blood sample of the accused. However, no DNA report could be obtained from the underwear or the baniyan of the deceased. Merely because the language of conclusion is that the DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit no.17 (blood sample of Shri Vedprakash) cannot be excluded as being possible contributor of DNA profile obtained from exhibit no.1 (underwear of deceased), exhibit no.12 (vaginal swab of deceased) and exhibit no.13 (vaginal smear of deceased), it cannot be said that the report is vague or is not definite. 31. Mr. 31. Mr. Anurag Sharma, learned Additional Advocate General, has produced several such similar reports issued by the State Forensic Science Laboratory, Rajasthan, wherein similar language has been used for indicating the match by mentioning that source of one exhibit is excluded as being possible contributor of DNA profile obtained from another exhibit. Learned Additional Advocate General has cited a document of Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories on “Scientific Working Group on DNA Analysis Methods”. Clause 3.6 of that documents relates to “Comparison of DNA Typing Results”, which reads thus, “3.6 Comparison of DNA Typing Results The following determinations can be made upon comparison of evidentiary and known DNA typing results (and between evidentiary samples): The known individual cannot be excluded (i.e., is included) as a possible contributory to the DNA obtained from an evidentiary item. - The known individual is excluded as a possible contributor. - The DNA typing results are inconclusive/uninterpretable. - The DNA typing results from multiple evidentiary items are consistent or inconsistent with originating from a common source(s).” 32. We are therefore not inclined to uphold the contention that the report is vague or inconclusive. We are also not inclined to countenance the submission that adequate precaution was not taken while collecting the samples. Only because the dead body was found buried in the sand, the sample value of the exhibit would not be lost thereby and the sample in this case is the underwear. Despite the fact that dead body was extracted from the pit by removing the sand, the samples, such as vaginal swab, vaginal smear and the underwear could still be obtained and in the initial report of the FSL, were found to contain semen, which fact has further been corroborated by DNA, which then were forwarded to Serology Division for necessary examination and the conclusion was found corroborated from the DNA report, where the samples were forwarded. The fact that the samples could yield the positive result with regard to presence of semen and also ultimately led to matching of DNA profile itself proves the correctness of the statement made in both the reports that samples were found properly sealed, bearing seal impression, which tallied with the specimen seal impression forwarded. 33. Dr. The fact that the samples could yield the positive result with regard to presence of semen and also ultimately led to matching of DNA profile itself proves the correctness of the statement made in both the reports that samples were found properly sealed, bearing seal impression, which tallied with the specimen seal impression forwarded. 33. Dr. V.D. Bajiya (PW-6), who was one of the members of the Medical Board, has proved the postmortem report of the deceased (Exhibit P-12), according to which, the deceased was found having following injuries:- “1. Ligature mark present on middle of neck in circling around neck. Base of ligature mark is pale, hard and leathery. Margin are congested on dissection of neck there is subcutaneous haematoma with contusion seen on spliting strong muscles, Truelea, thyroid cortilage and hyoid bone ruptured. Injury are ante mortem. 2. Diffuse bruise 13x5 cm present on midline of anterior chest extend up to right shoulder. Injury are ante mortem. 3. Bruising present Suprapubic Region, Vulvar Region, Perineal Region clotted blood present at vulvar region spilling up to anus. Hymenal tear present. Tear present along right medio-lat. angle of vaginal. Injury are ante mortem.” The opinion of the Medical Board reads as under:- “1. In opinion of board cause of death is cardio respiratory failure due to asphyxia caused by strangulation. 2. External Genital and Internal Genital finding are suggestive of vaginal penetration by hard sold object and possibility of sexual Intercourse can not be ruled out but final opinion will be given after FSL Report. 3. Any additional finding if present will be given after FSL Report of viscera.” 34. It is evident from the above conclusion of the medical board that there are ligature mark present on the neck encircling around the neck but there was diffused bruise in the size of 13x5 cm present on the mid line of anterior chest extending up to right shoulder, and bruising was present on Suprapubic Region, Vulvar Region, Perineal Region and clotted blood present at vulvar region spilling up to anus. Hymenal tear was found present. Tear was present along right medio-lat. angle of vaginal. The cause of death was opined to be cardio respiratory failure due to asphyxia caused by strangulation and that external genital and internal genital finding were suggestive of vaginal penetration by hard sold object and that possibility of sexual intercourse could not be ruled out. Hymenal tear was found present. Tear was present along right medio-lat. angle of vaginal. The cause of death was opined to be cardio respiratory failure due to asphyxia caused by strangulation and that external genital and internal genital finding were suggestive of vaginal penetration by hard sold object and that possibility of sexual intercourse could not be ruled out. Exhibit P-13 is the sex-assault report, which has been proved by Dr. Banshidhar (PW-7), and, as per his opinion, there is nothing to suggest that the accused was not capable to do sexual inter course. In cross-examination though this witness has stated that neither blood nor injury was present on the penis of the accused but this by itself may not be determinative of the fact that the accused was not capable of performing the sexual inter course or that the alleged offence was not committed by him. There may be, in a given situation, possibility of no such injury. As far as absence of blood is concerned, the alleged incident took place in the afternoon of 30.09.2015 and the accused was arrested on 01.10.2015 at 3:00 PM, i.e. twenty-four hours after the incident. Then his medical examination was conducted on 03.10.2015. As per Ram Kori (PW-3), the deceased was lastly seen with the accused around 2:00 PM on 30.09.2015. There was thus sufficient reason for the absence of the blood on the penis of the accused, who had enough time to wash out the same. As far as absence of injuries on the penis of the accused is concerned, we may here refer to the Twenty-Second Edition (Student Edition) of Modi’s Medical Jurisprudence & Toxicology. Chapter XVIII whereof relates to Sexual Offences, which is on many topics, one of which is “Examination of the Accused”, Clause (xi) whereof reads thus, “(ix) Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. Chapter XVIII whereof relates to Sexual Offences, which is on many topics, one of which is “Examination of the Accused”, Clause (xi) whereof reads thus, “(ix) Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.” In view of the above, it would not be necessary that in every case of this nature, there should always be marks of injuries on the penis and this can be explained by variety of reasons including that if enough lubrication is applied by the accused while committing the rape. Yet another argument advanced by learned Amicus Curiae about the absence of smegma around the corona glandis, also cannot be countenanced because smegma accumulates if no bath is taken for twenty-four hours. We may in this connection refer to Clause (x) of topic “Examination of the Accused” in Chapter XVIII, wherein this subject has been dealt with. Clause (x) reads thus, “(x) If the accused is not circumcised, the existence of smegma around the corona glandis is considered by some to be proof against sexual intercourse, since it is rubbed off during the sexual act. Nevertheless, the presence of smegma as proof against sexual intercourse is not of any medico-legal value, as legally, if the penis touches the valva, it is enough to constitute rape. So in a case of rape of this character, it is unlikely that smegma will be rubbed off. The smegma accumulates if no bath is taken for twenty-four hours. Vaginal epithelial cells adhere to the penis during sexual intercourse that is unprotected by a condom. With the increasing use of condoms by the general public, one must look for a used condom at the scene. When available, a condom can be critical link between the victim and the accused. Vaginal epithelial cells adhere to the penis during sexual intercourse that is unprotected by a condom. With the increasing use of condoms by the general public, one must look for a used condom at the scene. When available, a condom can be critical link between the victim and the accused. Bloodstains and vaginal epithelial cells from the outer aspect of the condom and semen from the inner side, and pubic hairs can be examined and compared with those of the alleged victim and accused. Same blood and semen group and same DNA profile can provide the strongest possible evidence. Such vaginal cells are rich in glycogen and stain readily with iodine. ….” 35. As already noticed above, the accused had enough time to take a bath and in all probabilities he took the bath and as such there was no question of existence of smegma around the corona glandis but also no blood was found on the penis. 36. Each of the incriminating circumstances against the accused has been proved by cogent and reliable evidence cumulatively which form chain of circumstances unerringly pointing towards guilt of the accused and none else, which are incompatible with any other hypothesis except the one of guilt of the accused. As against the two-Judge-bench judgment of the Supreme Court in Rahim Beg Vs. State of U.P. - AIR 1973 SC 343 , relied by learned Amicus Curiae, in which it was held that the absence of injuries on the male organs of the accused would point to their innocence because if rape is committed by a fully developed man upon a girl of 10 or 12 years, who is virgin and whose hymen is intact, there are likely to be injuries on the male organ of the man. We are, however, inclined to rely on the contrary and later judgment of the Supreme Court in State of H.P. Vs. Gian Chand – (2001) 6 SCC 71 to reject this argument because therein, the three-Judge-bench of the Supreme Court was dealing with a case of rape of a girl of five years and six months old, where similar argument was raised but was rejected relying on Modi’s Medical Jurisprudence & Toxicology. Gian Chand – (2001) 6 SCC 71 to reject this argument because therein, the three-Judge-bench of the Supreme Court was dealing with a case of rape of a girl of five years and six months old, where similar argument was raised but was rejected relying on Modi’s Medical Jurisprudence & Toxicology. Their Lordships therein held that even in the case of a child victim being ravished by a grown up person, it is not necessary that there should always be marks of injuries on the penis in such cases. It was further observed that it is to be noted that about two days had elapsed between the time of the incident and medical examination of the accused within which time minor injuries, even if caused, might have healed. In the present case also the incident had taken place in the afternoon of 30.09.2015 and the accused was arrested on 01.10.2015 at 3:00 PM, i.e. twenty-four hours after the incident had taken place, and thus his medical examination took place on 03.10.2015 which would be evident from the Sex Assault Report of the accused (Exhibit P-13). 37. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. In what kind of cases sentence of death should be awarded has been subject matter of discussion in various judicial pronouncements so much so the guidelines that were laid down by the Supreme Court in Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684 , while upholding the validity of Section 302 of the IPC (which authorizes imposition of penalty of death sentence), while concurring with the view expressed by it in earlier judgment in Tdiga Annamma Vs. State of Andhra Pradesh – (1974) 4 SCC 443 , are adhered to till date, which are that (i) extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, and (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 38. Those principles that were laid down by the Supreme Court in Bachan Singh's case, supra, were best summarized in Machhi Singh v. State of Punjab – (1983) 3 SCC 470 , in Para 38 of the judgment therein, which we reproduce as under:- “38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case (supra): (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the ‘crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Supreme Court in Devender Pal Singh v. State of NCT of Delhi – (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles on this aspect by revisiting Bachan Singh's case, supra, and Machhi Singh's case, supra, observed in Para 58 as under:- “58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of ‘bride burning' or ‘dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.” 39. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.” 39. In Rameshbhai Chandubhai Rathod Vs. State of Gujarat – (2009) 5 SCC 740 , judgment of High Court confirming death sentence awarded to the appellant was challenged before the Supreme Court. The appellant in that case was convicted for offence under Sections 363, 366, 376, 397 and 302 of the IPC. The matter was laid before two-Judges bench of the Supreme Court. The Hon'ble Judges though upheld conviction of the accused but differed on the question of sentence with only one of them concurring with the judgment of the High Court confirming death penalty, another Hon'ble Judge observing that instead of death sentence, sentence of rigorous imprisonment for life will meet the ends of justice. The matter was therefore referred to a larger bench. A three judge bench of the Supreme Court in Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat – (2011) 2 SCC 764 , answered the reference by favouring life imprisonment. In doing so, their Lordships concurred with the view expressed in earlier two Supreme Court judgments, namely, Ramraj Vs. State of Chhattisgarh – (2010) 1 SCC 573 and Mulla and Another Vs. State of Uttar Pradesh – (2010) 3 SCC 508, and held that death sentence awarded to the accused shall stand commuted to life imprisonment which shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 40. The Supreme Court in Machhi Singh's case, supra, while following its earlier dictum in Bachan Singh's case, supra, held that life imprisonment is the rule and death sentence is an exception, to which guidelines we have already made reference hereinabove. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. We reproduce hereunder Para 33 and 34 of the judgment of Supreme Court in Machhi Singh, supra, in extenso:- “I. Manner of Commission of Murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder 34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.” 41. The Supreme Court in Swamy Shraddananda Vs. State of Karnataka – AIR 2008 SC 3040 , was dealing with a case of murder convict and stated that the Court may find that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence, but, at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment which, subject to remission, normally works out to a term of 14 years, would be grossly disproportionate and inadequate. The Supreme Court held that in such a case, a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years imprisonment and death. The Court, therefore, can substitute a death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. The Supreme Court, therefore, in that case, while commuting the death sentence, directed that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order. Neel Kumar @ Anil Kumar Vs. State of Haryana, (2012) 5 SCC 766 , was a case where accused was convicted for rape and murder of his four year old daughter. In the facts and circumstances of that case, the Supreme Court did not find the same to be a rarest of rare case. Considering, however, the nature of the offence, age and relationship of the victim with the convict and gravity of injuries caused to the victim, the Supreme Court also did not find that to be a fit case to award lenient punishment to the convict and he was sentenced for a term of 30 years without remission before consideration of his case for premature release. In Shankar Kisanrao Khade Vs. State of Maharashtra, 2013 Cri.L.J. 2595, the death sentence was commuted to life imprisonment with a direction that he shall not be released for rest of his life. That was a case of repeated rape and sodomisation and then murder by strangulation of a minor girl of 11 years with intellectual disability by a men 52 years. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and that special reasons are required to be recorded for awarding death sentence but no special reasons are required to be recorded for awarding life imprisonment. Death sentence awarded to the caused was commuted to life imprisonment with direction that he shall not be released for rest of his life. Death sentence awarded to the caused was commuted to life imprisonment with direction that he shall not be released for rest of his life. 42. We find that the circumstances of this case are not such where the act of the accused can be said to be a case of such extreme culpability where, having regard to the nature of those circumstances, the life imprisonment would be altogether inadequate punishment. When we draw a balance sheet of all the aggravating circumstances as against mitigating circumstances of this case, we rather feel more inclined to award the sentence of life imprisonment than to award death penalty. 43. Considering all these factors, in our view, this case does not qualify the test of being “rarest of rare cases” and therefore, we commute the death sentence to that of life imprisonment, which shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 44. While answering the reference accordingly, we dismiss the Jail Appeal in so far as challenge to conviction under Sections 302, 201, 366 IPC and Section 5/6 of the POSCO Act is concerned. Death sentence awarded to accused Ved Prakash vide judgment and order dated 10.08.2016, however, is commuted to that of life imprisonment, which shall extend to the full life of the accused but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. 45. Before concluding, we would like to express our deep sense of appreciation for Mr. Pradeep Choudhary, who, as Amicus Curiae, has really put in hard labour and ably assisted the court by representing the defence in the best possible way. 46. A copy of this judgment be placed in the connected file.