JUDGMENT Alok Singh, J. - Present appeal is filed against the judgment and order dated 26/28.08.2019 passed by Special Judge, (POCSO) in Special Sessions Trial No. 119 of 2018 whereby learned Trial Court was pleased to convict the accused / appellant under section 5/6 of POCSO Act and under section 376 (AB), 377, 302, 201 of IPC and sentenced to undergo imprisonment for whole life and to pay a fine of Rs. 20,000/- and in default to undergo additional rigorous imprisonment of 2 years under section 6 of the POCSO Act; sentenced to undergo 5 years of imprisonment and to pay fine of Rs. 5,000/- and in default, to undergo additional rigorous imprisonment of 6 months under section 201 of IPC; and sentenced capital punishment and to pay a fine of Rs. 30,000/- and in default, to undergo additional rigorous imprisonment of 2 years of rigorous imprisonment under section 302 of IPC. 2. Brief facts of the case are that the informant is from Madhya Pradesh and belongs to lower strata of the society. The accused/appellant as well as informant both are labourers and were residing on separate temporary huts at ongoing construction site. An F.I.R. was lodged by PW1 father of the victim on 28.07.2018 with Police Station - Sahaspur, Vikas Nagar, District Dehradun stating therein that he is a labour and is residing in a hut in the premises of under construction building of Shivalik Engineering College. It was further alleged that he is an employee/labour of contractor Kulbhushan and is residing with his wife and younger daughter (deceased victim) in the aforesaid hut. His brother (Shivcharan) along with his wife (Somwati) and their two children are also residing in the aforesaid huts. He used to go for labour work along with his wife but for the last two days he could not go for work/duty on account of heavy rain. It was also contended that his daughter (deceased victim) was playing with children of his brother. At about 12.30 p.m., his daughter went missing and was not seen with the children of his brother. When he enquired about his daughter from the children of his brother, they informed him that Jai Prakash Tiwari took them to his hut and gave them Rs. 10/- each and sent both of them to purchase things but detained the deceased victim. When he enquired about his daughter from the children of his brother, they informed him that Jai Prakash Tiwari took them to his hut and gave them Rs. 10/- each and sent both of them to purchase things but detained the deceased victim. Somwati (PW13) also informed him that she had also seen Jai Prakash Tiwari along with the children going towards his hut. Jai Prakash was holding hand of deceased victim. After some time children of his brother came back and informed their mother that Jai Prakash had given them Rs. 10/- each. When he (PW1) went to Jai Prakash, enquiring whereabouts of his daughter, he was informed by the accused Jai Prakash that deceased victim left his place after taking Rs. 10/-. Thereafter, he along with others started searching for deceased victim. And during the search Mohd. Alam Nair informed that deceased victim was found beneath the empty cement bags (katta) inside the hut of Jai Prakash. It was further alleged in the F.I.R. that Yogesh and Suresh sons of contractor Lallan were also residing with Jai Prakash Tiwari in his hut. Yogesh and Suresh had gone for work on the fateful day. However, Jai Prakash remained alone in his hut. It was further contended that Jai Prakash committed murder of his daughter after committing rape. After committing the crime, Jai Prakash ran away. On the basis of aforesaid information, FIR was registered against accused Jai Prakash. 3. After lodging the FIR, the Investigating Officer started investigation and prepared the inquest report on 28.07.2018; sent the body of deceased/victim for postmortem. PW4 Dr. Chirag Bahuguna conducted the postmortem examination on 29.07.2018. In the post mortem report cause of death is shown as "manual throttling by hand causes asphyxia". The Investigating Officer also prepared a site plan and recorded the statement of witness under section 161 of Cr.P.C. Statements of PW1 father of the deceased victim, PW2 Kulbhushan, PW6 Yogesh Kumar and PW3 Nayar Azam were also recorded under Section 164 Cr.P.C by the Magistrate. The Investigating Officer arrested the accused Jai Prakash Tiwari and prepared memo of arrest and memo of information of arrest. After completion of investigation, the Investigating Officer submitted the charge-sheet against the accused. 4. On 22.11.2018, the Trial Court framed charges under Sections 302, 201, 376, 377 IPC and under Section 6 of the POCSO Act against the accused appellant. The Investigating Officer arrested the accused Jai Prakash Tiwari and prepared memo of arrest and memo of information of arrest. After completion of investigation, the Investigating Officer submitted the charge-sheet against the accused. 4. On 22.11.2018, the Trial Court framed charges under Sections 302, 201, 376, 377 IPC and under Section 6 of the POCSO Act against the accused appellant. Charges were explained to the accused appellant. He denied the charges and claimed trial. 5. The prosecution in order to prove its case produced as many as 17 witnesses namely PW1 father of the victim/deceased, PW2 Kulbhushan, PW3 Mohd. Nair Alam, PW4 Dr. Chirag Bahuguna, PW5 Sub Inspector Laxmi Joshi, PW6 Yogesh, PW7 Constable Hari Shankar Kaniyal, PW8 mother of the victim/ deceased, PW9 Prasoon Shukla, PW10 Sub Inspector Raj Vikram Singh Panwar, PW11 Master. Rakesh, PW12 Rani @ Chahna, PW13 Somwati, PW14 Constable Rajeev Kumar, PW15 Dr. R.C. Arya, PW16 Sub Inspector N. S. Rathor and PW17 Dr. Manoj Kumar Agarwal. 6. The appellant was also examined under Section 313 Cr.P.C. He claimed himself innocent and denied the prosecution case. He has further stated that he is innocent and he has been falsely implicated in the case. He further contended that neither the dead body of deceased was recovered nor any other incriminating article has been recovered from his room/hut. 7. Having heard learned counsel for the parties and perusing the material available on record, the appellant was convicted and sentenced by the trial court, as noticed herein above. It is in these circumstances, the reference has been made for confirmation of death sentence bearing Reference No. 02 of 2019. Appellant has filed criminal jail appeal bearing CRJA No. 64 of 2019 seeking his acquittal. 8. I have heard learned counsel for the parties, at length and gone through the impugned judgment and entire record of the case carefully. 9. Learned counsel for the appellant has argued that the prosecution has totally failed to prove its case beyond all reasonable doubt. It was further submitted that most of the witnesses are interested witnesses either they are relatives or are closely associated with the victim/deceased, however, the trial court illegally convicted the appellant relying upon the testimony of the aforesaid interested witnesses only. It was further submitted that most of the witnesses are interested witnesses either they are relatives or are closely associated with the victim/deceased, however, the trial court illegally convicted the appellant relying upon the testimony of the aforesaid interested witnesses only. The learned counsel for the appellant has further argued that there are material contradictions in the statements of witnesses but the trial court without appreciating the same convicted the appellant by the impugned judgment. 10. It has also been argued on behalf of the appellant that as per the prosecution case itself, the accused was residing in the room along with two more persons namely Yogesh and Suresh, however, they have not been made accused. It was also argued that the deposition of witnesses with regard to the recovery of the dead body are contradictory and do not inspire confidence. In the inquest report (Panchnama), the body was not shown as hidden beneath the empty cement bags; further PW2 Kulbhushan in his examination has mentioned different name, however, the parents of deceased/victim have shown different name of the deceased. It was also urged on behalf of the appellant that the prosecution has utterly failed to prove that the deceased at the time of the incident was below 12 years of age, therefore, the trial under the provisions of POCSO Act was illegal. 11. So far the recovery of the dead body from the room of accused is concerned PW1 father of victim/deceased (informant), PW2 Kulbhushan, PW3 Mohd. Nair Alam by their oral evidence proved factum of recovery of dead body from the room of Jai Prakash. In their deposition they have categorically stated that they have seen the body of deceased/victim, which was hidden beneath the empty cement bags (Katta) in the room of Jai Prakash. PW6 Yogesh also supported the version of the PW1 father of the deceased victim, PW 2 Kulbhushan and PW 3 Mohd. Nair Alam. In his examination PW6 Yogesh has stated that on 28.07.2018 accused Jai Prakash had not gone to his duty; he remained in his room and was consuming liquor. At about 12.30 p.m., when he came to his hut to take the machine, he saw the accused with victim/ deceased and two children. Nair Alam. In his examination PW6 Yogesh has stated that on 28.07.2018 accused Jai Prakash had not gone to his duty; he remained in his room and was consuming liquor. At about 12.30 p.m., when he came to his hut to take the machine, he saw the accused with victim/ deceased and two children. The defence has cross examined PW6 Yogesh at length but nothing contradictory version has come from the cross examination as such the prosecution has succeeded to prove the recovery of the body of deceased from the room of Jai Prakash. Apart from the aforesaid witnesses PW11 Master Rakesh, PW12 Rani @ Chahna and PW13 Somwati, who are also witnesses of fact and in their evidence, they have supported the prosecution version. In their evidence, they have categorically stated that they have seen the victim/ deceased, who was being brought by Jai Prakash towards his room. 12. Apart from aforesaid statements, the statement recorded under Section 164 Cr.P.C of PW1 father of victim/ deceased, PW2 Kulbhushan, PW3 Mohd. Naiyyar Alam, PW6 Yogesh Kumar, are similar to the depositions of the aforesaid witnesses. 13. The body of the deceased, as indicated above recovered from the room of Jai Prakash, which was duly identified by the PW 1 and PW 8, who are parents of the deceased/victim. PW2 Kulbhushan is merely employer of PW1. He might not be aware about the actual name of the deceased, therefore, mentioning the different name by PW2 Kulbhushan doesn't give any benefit to the accused. Therefore, the contention raised by the counsel for the accused with regard to the identification of the deceased is not acceptable. 14. Pw1 father of the deceased in his examination has clearly stated that his daughter is aged about 10 and a half year. PW4 Dr. Chirag Bahuguna, who has conducted the postmortem, has also in his report mentioned the age of deceased as 11 years. PW8 mother of deceased, also stated in her examination that age of her daughter was 10 year and 6 months. It is noted in this regard that the defence has not cross examined PW1 and PW8 father and mother of the deceased respectively. Other important witness who is PW9 Prasoon Shukla, Principal of the school where deceased studied, has also stated that the date of birth of deceased is 20.10.2008 as mentioned in the school record. It is noted in this regard that the defence has not cross examined PW1 and PW8 father and mother of the deceased respectively. Other important witness who is PW9 Prasoon Shukla, Principal of the school where deceased studied, has also stated that the date of birth of deceased is 20.10.2008 as mentioned in the school record. From the aforesaid evidence, it is clear that at the time of incident the deceased was below the age of 12 years, therefore, there is no illegality in committing the trial under the provisions of the Protection of Children from Sexual Offences Act (POCSO). 15. It was further argued that medical report does not support the prosecution version and it does not indicate that any sexual assault or rape was committed on the victim/deceased. PW4 Dr. Chirag Bahuguna, who has conducted the postmortem and also prepared the medical report, has proved the postmortem examination report, relevant portion of the report reads as under: "In vagina 2 to 3 fingers can be passed easily inside the vagina without resistance. Hymen torned with reddish margin suggestive of recent trauma. Post wall of vagina tear present 0.5 cm in length. This is suggestive of forceful penetration. Anal mucosa show reddish inflamed surface, suggestive of penetration trauma. These injuries are suggestive of sexual assault." 16. Pw5 Sub Inspector Laxmi Joshi, who has conducted the inquest (Panchnama) also noted the injuries on the private part of the body of deceased as well as other injuries found on the body of the deceased. PW4 Dr. Chirag Bahuguna, in his examination has categorically stated that the injuries found on the private part of the body were result of the forceful penetration. He further deposed that the other injuries, found on the body of the deceased indicated that the victim was subjected to sexual assault. From perusal of the aforesaid evidence, it is clear that the medical evidence fully corroborate the prosecution story, as such the contention raised by the learned counsel of the appellant in this regard has no force. 17. During the course of investigation, the Investigating Officer has recovered certain articles and clothes of deceased including hair recovered from the hands (fist) of deceased and currency of Rs. 10. The said articles were sent for FSL which was scientifically examined and thereafter, a report was prepared by PW17 Dr. Manoj Agarwal. 17. During the course of investigation, the Investigating Officer has recovered certain articles and clothes of deceased including hair recovered from the hands (fist) of deceased and currency of Rs. 10. The said articles were sent for FSL which was scientifically examined and thereafter, a report was prepared by PW17 Dr. Manoj Agarwal. The aforesaid report is Exhibit 43 and the same was proved by PW17 Dr. Manoj Agarwal. The conclusion of the report is as under:- "The DNA test performed on the exhibits provided is sufficient to conclude that, The DNA obtained from the Exhibits 4 and 5 (hair recovered from deceased and underwear of accused) are from single male human source and matching with DNA obtained the Exhibit - 24 (blood sample of accused). The DNA obtained from Exhibit 9 (underwear of deceased) is matching with the DNA obtained from the Exhibit 23 and 24 (blood sample of deceased and blood sample of accused) The DNA obtained from Exhibits 13, 14, 15, 16, 17, 18, 19, 20 and 22 (throat swab, throat side, internal vaginal swab, internal vaginal side, internal vaginal swab, internal vaginal slide, internal anal swab, internal anal slide and nails clipping of victim) are from single female human source and matching with DNA obtained from the Exhibit 23 (blood sample of deceased)." 18. From perusal of the aforesaid report, it is clear that the DNA obtained from the hair recovered from the hand of deceased and the underwear of accused are from single male human source and further DNA obtained from underwear of the accused and blood sample of accused are matching. Defence has cross examined PW17 Dr. Manoj Agarwal, at length, but no contradictory material came out which creates dent on the prosecution story. As such, the prosecution has succeeded to prove that the accused/appellant had murdered victim after committing rape by penetration in vaginal part as well as anal part. 19. The FSL report is the scientific and extremely important piece of evidence. It is also pointed out that it is not the case of appellant that the said FSL report was tempered or manipulated one, as such the aforesaid FSL report stands proved and can easily be relied upon. 20. The deceased was lastly seen with the accused, as indicated above and thereafter, the body of the deceased was recovered from the room of accused. 20. The deceased was lastly seen with the accused, as indicated above and thereafter, the body of the deceased was recovered from the room of accused. As per the postmortem report, there was injury on vaginal part and anal part of the body of the deceased/victim, which indicates that the deceased was subjected to rape by forceful penetration by the accused. 21. Section 29 of Protection of Children from Sexual Offences Act (POCSO) provides that where a person is prosecuted for violating any of the provisions under Section 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed the offence unless contrary is proved. The above presumption is an exception to the ordinary rule of presumption of innocence available to an accused in a criminal trial. In view of the above provision, there is a presumption against the accused that he has committed the offence for which he is tried. 22. The accused himself appeared as defence witness. In his defence, he has stated that on the fateful day i.e. on 28.07.2018 he was on leave; he consumed liquor with Yogesh and Suresh and after that he slept in his room. Later on, he along with Yogesh and Suresh were brought to the police station Sahaspur by the contractor where the police personnel got his signature on plain paper. Subsequently, Suresh and Yogesh got released by the contractor from the custody of the police, however, he was detained in the police station and when he was in the custody of police in the police station he came to know that a dead body of a girl was found in his room. From perusal of the aforesaid deposition of accused in his defence it is clear that the accused himself has admitted that on the fateful day he was in his room, the dead body of the deceased was found in his room which he came to know when he was in police custody, further the DNA of the accused, which was found on the undergarment of the deceased was matched in FSL report which is a scientific and substantive piece of evidence. In view of the aforesaid involvement of the appellant in the crime is fully proved. Further, the accused has utterly failed to explain as to why PW2 Kulbhushan, PW6 Yogesh have given evidence against him. In view of the aforesaid involvement of the appellant in the crime is fully proved. Further, the accused has utterly failed to explain as to why PW2 Kulbhushan, PW6 Yogesh have given evidence against him. The accused has further failed to explain as to why PW 11 Master Rakesh and PW 12 Rani, who are the witnesses of tender age, have given evidence against him. 23. From perusal of the aforesaid fact and circumstances, it is clear that the prosecution has proved its case beyond all reasonable doubt as such there is no illegality in the impugned judgment passed by Fast Track Court/ Special Judge, Protection of Children from Sexual Offences (POCSO)/ Addl. District Judge Dehradun in a Special Session Trial No. 119 of 2018 convicting the appellant under Section 376(AB), 377, 302, 201 IPC and 5/6 Protection of Children from Sexual Offences Act (POCSO) and sentenced accordingly. CRIMINAL REFERENCE No 2 OF 2019 24. Jai Prakash has been rightly convicted under Section 376 (AB), 377, 302, 201 IPC and 5/6 Protection of Children from Sexual Offences Act (POCSO). He has been sentenced to extreme penalty of death. It is argued by the counsel for the appellant that it is not the case, which may warrant capital punishment, as the case in hand, does not fall in the category of "rarest of the rare cases". 25. Learned State Counsel has opposed the said contention and would argue that a helpless girl of tender age was sexually assaulted and brutally murdered by Jai Prakash. This warrants extreme penalty of death. In support of his contention learned counsel placed reliance the judgment passed by this Court in Criminal Reference No. 1 of 2016 State of Uttarakhand Versus Akhtar Ali decided on 18.10.2019. 26. Appellant Jai Prakash has brutally murdered a girl of merely 11 years old after committing rape by penetration in vaginal and anal part. Not even this, he has also tried to destroy the evidence of offence by hiding the dead body of the prosecutrix / deceased. The charges have been proved beyond all the reasonable doubt. It defies any interference of innocence of Jai Prakash. This Court does not entertain any "lingering doubt in the case". The charges are proved beyond all reasonable doubt, with utmost certainty. 27. The charges have been proved beyond all the reasonable doubt. It defies any interference of innocence of Jai Prakash. This Court does not entertain any "lingering doubt in the case". The charges are proved beyond all reasonable doubt, with utmost certainty. 27. In case of Akhtar Ali (Supra) the accused has brutally murdered a young girl of 7 years old, after committing rape and this Court was of the opinion that the said incident falls in the category of "rarest of the rare cases" and confirmed the death sentence awarded by the trial court. 28. Instant case is also case of rape and murder of a young, helpless and defenceless girl. The present case also falls in the category of "rarest of the rare cases" which calls no punishment other than death penalty. As such the principal laid down in the judgment of Akhtar Ali (Supra) is fully applicable in case in hand. 29. The act committed by appellant is so brutal that it pricks or shocks not only the judicial conscious but even the conscious of the society and this case certainly falls in the category of "rarest of the rare cases" which calls for no punishment other than capital punishment. Therefore, this Court is of the view that judgment passed by Special Judge (POCSO), Dehradun warrants no interference. Jail appeal is hereby dismissed. Conviction and sentences awarded by the trial court including the death penalty are hereby confirmed. 30. Criminal Reference No. 02 of 2019 is answered accordingly. 31. Let a copy of this judgment along with lower court record be sent back forthwith.