JUDGMENT : (Alok Kumar Verma, J.) : The Criminal Reference and these three Appeals have arisen from a common judgment and order dated 22.03.2022/26.03.2022, passed by learned Additional District and Sessions Judge/Special Judge POCSO, Haridwar in Special Sessions Trial No. 27 of 2021, “State vs. Ramtirath Yadav and two Others.” 2. The appellant-accused Ramtirath Yadav has been convicted for the offence punishable under Sections 363, 366-A, 376-A, 376-AB, 377, 302, 201 of the Indian Penal Code, 1860 (in short, “IPC”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, “Act, 2012”). 3. Appellant-accused Rajiv Kumar has been convicted for the offence punishable under Section 201 IPC and Section 17 of the Act, 2012. 4. Learned Trial Court has awarded death sentence to the appellant-Ramtirath Yadav for the offence under Section 302 IPC and a fine of Rs.50,000/- and in view of Section 42 of the Act, 2012, under Section 6 of the Act, 2012 along with a fine of Rs.50,000/-. He has been ordered to be hanged till death. Learned Trial Court has referred the matter to this Court for confirmation of the same in terms of the provisions of Section 366 of the Code of Criminal Procedure, 1973 (in short, “Code”). 5. Appellant-accused Ramtirath Yadav has been further sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs. 10,000/- for the offence punishable under Section 363 IPC and in default of payment of fine, he has been directed to undergo further imprisonment for a period of two months. He has been sentenced to suffer rigorous imprisonment for a period of ten years and a fine of Rs. 10,000/- for the offence under Section 366-A IPC and in default of payment of fine, he has been directed to undergo further imprisonment for a period of two months. He has been sentenced to undergo imprisonment for life and a fine of Rs. 50,000/- for the offence under Section 377 IPC and in default of payment of fine to further undergo for six months, and, he has been sentenced to undergo imprisonment for a period of seven years along with a fine of Rs. 10,000/- for the offence under Section 201 IPC and in default of payment of fine, he has been directed to undergo further imprisonment for a period of three months. 6. 10,000/- for the offence under Section 201 IPC and in default of payment of fine, he has been directed to undergo further imprisonment for a period of three months. 6. Appellant-accused Rajiv Kumar has been sentenced to undergo imprisonment for a period of five years and a fine of Rs. 50,000/- for the offence under Section 201 IPC and in default of payment of fine, he has been directed to undergo further imprisonment for a period of six months. He has been further sentenced to undergo imprisonment for a period of five years along with a fine of Rs. 50,000/- for the offence under Section 17 of the Act, 2012 and in default of payment of fine to further undergo for six months. 7. All the sentences have been directed to run concurrently. 8. Giving benefit of doubt to one accused Gambhir Chand alias Gaurav, the trial court has acquitted him of the charge of Section 212 IPC. 9. The victim has filed the Criminal Appeal No. 493 of 2023 against the appellant-accused Rajiv Kumar under the proviso to Section 372 of the Code on the ground of inadequacy of sentence. 10. The Criminal Reference will be treated as a leading case. 11. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that the minor daughter of the informant was missing since 3.30 p.m. on 20.12.2020. Appellant Ramtirath Yadav resided in the house of the appellant Rajiv for about three-four years. The minor daughter of the informant was last seen with the appellant Ramtirath Yadav. The police took the appellant Ramtirath Yadav to the police station for interrogation. When the lock of the room located on the second floor of the house was opened after getting the key from the appellant Ramtirath Yadav from the police station, the dead body of the informant’s minor daughter was found in that room. 12. Sub-Inspector Laxmi Manola (PW14) was asked by Sub-Inspector Rajiv Kandari to go to the spot for inquest proceedings. She reached the spot on 20.12.2020 along with Constable Mamta Panwar. At that time senior officers and other persons, including relatives of the deceased, were present at the spot. The dead body was kept on the second floor of the house. Forensic team was also called to the spot by the police. Forensic team collected the evidence on the spot. She reached the spot on 20.12.2020 along with Constable Mamta Panwar. At that time senior officers and other persons, including relatives of the deceased, were present at the spot. The dead body was kept on the second floor of the house. Forensic team was also called to the spot by the police. Forensic team collected the evidence on the spot. Both the hands of the deceased were tied behind with a maroon colored string, her legs were tied and a maroon colored string was found around her neck. There was no clothes below the waist of the deceased. After preparing the inquest report (Ext. Ka. 9) by Sub-Inspector Laxmi Manola (PW14), other formalities were performed to send the dead body for post-mortem examination. 13. The said string was seized and sealed vide Memo (Ext. Ka. 16) by Inspector Amarjeet Singh (PW19) in front of the independent witness Deepak Chaudhary and Sohan Singh Panwar. 14. The informant (PW1) informed the Police Station Kotwali Haridwar, District Haridwar through his written information (Ext. Ka. 1) that his daughter, aged about 11 years, was flying a kite on the roof of her house on 20.12.2020 at around 15.30 p.m. She told her mother that she was going to bring a kite from Ramtirath Yadav uncle. When she did not return home for a long time, a search was conducted. She was last seen with Ramtirath Yadav near his house. In this regard, Mayapur police was verbally informed at around 20.00 hrs. Ramtirath Yadav and his maternal uncle Rajiv were suspected of missing his daughter. When they along with the police went inside Rajiv’s house in search of the victim/deceased, suddenly Rajiv ran away from the spot. An attempt was made to apprehend Rajiv but he freed his hand and ran away. The dead body of the informant’s daughter was found covered with clothes in a room on the second floor of Rajiv’s house. Both her hands were tied behind her back, her legs were tied and a tape was placed over her mouth. Seeing her dead body, it was believed that Ramtirath Yadav and Rajiv had raped her and then strangled her to death with a maroon colored plastic string. 15. The First Information Report (Ext. Ka. Both her hands were tied behind her back, her legs were tied and a tape was placed over her mouth. Seeing her dead body, it was believed that Ramtirath Yadav and Rajiv had raped her and then strangled her to death with a maroon colored plastic string. 15. The First Information Report (Ext. Ka. 4) was registered by Constable Shoorveer Singh Chauhan (PW8) on 21.12.2020 at 5.12 hrs against the appellant Ramtirath Yadav and the appellant Rajiv under Sections 302, 363, 366A, 376A, 376DB, 201 IPC and Section 5 read with Section 6 of the Act, 2012. 16. The post-mortem examination of the dead body was conducted by a Panel of doctors- Dr. Shivam Pathak (PW12), Dr. P.P. Singh, Dr. Chandan Kumar and Dr. Shashikant with videography on 21.12.2020. 17. The investigation was handed over to Inspector Amarjeet Singh (PW19). He had prepared the site plan (Ext. Ka. 24) of the place from where the dead body was recovered. Appellant Ramtirath Yadav was interrogated by him. He had confessed his guilt of raping and murdering the deceased and on his disclosure a underwear (Material Ext. 29) and paizama (Material Ext. 30) of the deceased were recovered on 21.12.2020 at 9.15 a.m. from the place next to Madhuban Hotel near Ranipur Mod. Appellant Ramtirath Yadav was formally arrested on 21.12.2020 at 10.10 hrs. Appellant-accused Rajiv Kumar was arrested on 27.12.2020. Medical examination of both the appellants-accused were conducted. The deceased was last seen with the appellant Ramtirath Yadav. This fact was also found to be covered in CCTV. The appellant Ramtirath Yadav was seen carrying a bag on his motorcycle. Seized articles were sent to the Forensic Science Laboratory. After completion of the investigation, charge-sheet (Ex.Ka.33) was filed by Dr. Purnima Garg (PW21). 18. Charges under Sections 363, 366-A, 376-A, 376-AB, 377, 302, 201 IPC and Section 5 (m) read with Section 6 of the Act, 2012 and Section 5 (i) read with Section 6 of the Act, 2012 were framed against the appellant-accused Ramtirath Yadav. Charges under Section 201 IPC and Section 16 read with Section 17 of the Act, 2012 were framed against the appellant-accused Rajiv Kumar. As the appellants-accused pleaded innocence, trial was held. 19. In order to bring home the guilt of the appellants-accused, prosecution examined 21 witnesses. 20. Statements under Section 313 of the Code were recorded. Charges under Section 201 IPC and Section 16 read with Section 17 of the Act, 2012 were framed against the appellant-accused Rajiv Kumar. As the appellants-accused pleaded innocence, trial was held. 19. In order to bring home the guilt of the appellants-accused, prosecution examined 21 witnesses. 20. Statements under Section 313 of the Code were recorded. Appellants-accused denied all the incriminating evidence, produced by the prosecution. 21. The appellant-accused Ramtirath Yadav pleaded that the deceased had come to him at 2 O’clock. After that she left. After she left, he received Rajiv’s phone call. He had gone to get his vehicle repaired. Rajiv called him by phone. Two Sardars were present there. He gave them the keys and on Rajiv’s request, he went to the Jagdishpur liquor shop to buy liquor. When the police arrested him and interrogated him, he told the police that he had no information. The police beat him and sent him to another Police Chowki, where a woman was called and his semen was extracted. To substantiate his defence plea, the appellant-accused Ramtirath Yadav has examined himself as DW1. 22. DW1 Ramtirath Yadav has stated in his examination-in-chief that he was detained at SIDCUL Police Station from 8:30 a.m. to 4:00 p.m. He was not taken to recover the articles. At the time of his arrest, his mobile phone, golden chain, purse and the key of his room were taken away and his medical certificate is false. He has stated in his cross-examination that he was residing in Rajiv’s house. That house has ground floor, 1st floor and 2nd floor. He has admitted his signature on the Memo (Ext. Ka.19) although he stated that his signature was taken on a blank paper. 23. Appellant-accused Rajiv Kumar has examined Rakesh Upadhyaya (DW2) and Gajendra Jeet Singh (DW3) in his defence evidence. According to the witness Rakesh Upadhyaya (DW2), he and Rajiv are property dealers. On 20.12.2020, Rajiv came to his office in his vehicle at around 11:00 a.m. They had gone to see the land and returned at around 5:00 p.m. Rajiv’s vehicle had broken down. So, he went to the mechanic at 6:30 in the evening. Gajendra Jeet Singh (DW3) has stated that he is also a property dealer. On 20.12.2020, Rajiv met him at around 7:30 – 7:45 p.m. and he gave him Rs. 10,000/-. 24. Heard learned counsel for the parties. 25. Mrs. So, he went to the mechanic at 6:30 in the evening. Gajendra Jeet Singh (DW3) has stated that he is also a property dealer. On 20.12.2020, Rajiv met him at around 7:30 – 7:45 p.m. and he gave him Rs. 10,000/-. 24. Heard learned counsel for the parties. 25. Mrs. Manisha Bhandari, Advocate appearing for the appellant Ramtirath Yadav, contended that the appellant has been falsely implicated. The alleged recoveries were made without arresting the appellant. The cervix slides that was prepared from the cervix swab did not detect any semen and no semen was detected from the vaginal slides as also vaginal swabs of the deceased, and, there are several contradictions in the statements of the prosecution witnesses. 26. Mr. Arvind Vashistha, learned Senior Advocate appearing for the appellant Rajiv Kumar, argued that there is no reliable evidence on record to connect the appellant with the said offence. 27. Mr. J.S. Virk, learned Deputy Advocate General, has supported the impugned judgement. 28. The prosecution witness PW1 is the father of the deceased. He deposed that on the day of the incident, her daughter was playing on her terrace at around 3.30 p.m. She told her mother that she was going to bring a kite from Ramtirath uncle. When she did not return home for a long time, a search was conducted. Mayapur police was informed at around 8.00 p.m. Police came and checked nearby CCTV cameras but her daughter was not found. Gaurav Kumar had told him that he had seen his daughter with Ramtirath. They went to Rajiv’s house with the police. Rajiv was also with them. He (Rajiv) was also searching for his daughter along with them. Two rooms on the upper floor of the house were closed. Rajiv had told that the said rooms were full of junk. On being threatened by the police, Rajiv opened the room. The legs of the deceased were visible. Rajiv told that it was a dummy and ran away from there. Both the hands of the deceased were tied behind her back, her legs were tied and a tape was placed over her mouth. He proved his written information (Ext.Ka.1). He is also a witness of the inquest proceedings. He has identified the tape (Material Ext.1) and string (Material Ext.3 to 7) produced in the sealed cover during his testimony. 29. Both the hands of the deceased were tied behind her back, her legs were tied and a tape was placed over her mouth. He proved his written information (Ext.Ka.1). He is also a witness of the inquest proceedings. He has identified the tape (Material Ext.1) and string (Material Ext.3 to 7) produced in the sealed cover during his testimony. 29. The prosecution witness PW1 further deposed that he had seen the video of the incident dated 20.12.2020 in the video recording of the CCTV camera installed in the house of Prakash Chaudhary opposite Rajiv’s house on 29.12.2020 with the police. In this video, his daughter was seen going to Rajiv’s house at 2.18 p.m. In this video, Ramtirath was seen coming and going several times. The police had sealed the DVR of the said CCTV camera of the house of Prakash Chaudhary and prepared a memo. He has identified his signature on the said memo. He has stated in his cross-examination that in his statement, recorded by the investigating officer, it is not mentioned that Rajiv had opened the room and after seeing the leg of the deceased, he had called it a dummy and he had run away from there. 30. The house of the prosecution witness PW6 is in front of Rajiv’s house. The prosecution witness PW6 has stated that CCTV cameras are installed in his house. The DVR of the video recording dated 20.12.2020 was taken by the police from his CCTV camera. He had also seen this recording. Supporting the evidence of the deceased’s father, he has stated that he had given the certificate under Section 65B of the Evidence Act to the police at his house on 29.12.2020. The evidence of this witness is corroborated by the evidence of Vishakha Ashok Bhadare, S.P. Crime (PW20). 31. PW17 S.I. Devendra Singh Tomar has stated that he had observed the CCTV camera of the house opposite Rajiv’s house on 29.12.2020. On the day of incident, at 6.3 p.m., the accused Ramtirath was seen carrying a bag on a motorcycle from inside the gate. Thereafter, he was seen going inside his house on the motorcycle at 6.25 p.m. A memo (Ext.Ka.20) was prepared and a certificate under Section 65B of Evidence Act (Ext.Ka.2) was taken from the house owner. 32. On the day of incident, at 6.3 p.m., the accused Ramtirath was seen carrying a bag on a motorcycle from inside the gate. Thereafter, he was seen going inside his house on the motorcycle at 6.25 p.m. A memo (Ext.Ka.20) was prepared and a certificate under Section 65B of Evidence Act (Ext.Ka.2) was taken from the house owner. 32. The prosecution witness PW2, aged about ten years, a neighbor of the deceased, stated that he was playing on his terrace. His Didi (deceased) was on her terrace. His Didi (deceased) had told that Ramtirath Bhaiya had asked her to come after half an hour to get the kite. 33. The prosecution witness PW9 mother of the deceased has also supported the prosecution. She has stated that on 20.12.2023, at around 2.30 p.m., her daughter had told her that Ramtirath had asked her to come after half an hour to get the kite. 34. The prosecution witness PW4 is sister-in-law (Nanad) of the deceased’s mother. She too, along with other persons and the police team, went to the room where the dead body was found. This witness has also supported the prosecution’s case. 35. PW3 Gaurav Kumar, supporting the statement of the father of the deceased, has deposed that on 20.12.2020 at around 4.00 p.m., when he was going from his house to his shop, he saw the deceased and Ramtirath, who were going inside the house of Rajiv. He is also a witness to the inquest proceedings. 36. The prosecution witness PW5 who is an advocate has deposed that Ramtirath has been residing in Rajiv’s house for three-four years. He went with the police team and other persons to the room where the dead body was found. He has stated that S.P. City, who was present at the spot, called the police chowki and asked Ramtirath for the key of the room from where the dead body was recovered. When the room was opened after receiving the key, the dead body of the deceased was found in a semi-nude state. Her hands were tied behind her back, her legs were tied and a tape was placed over her mouth. 37. PW19 Inspector Amarjeet Singh has deposed that on 20.12.2020, he had taken Ramtirath to Mayapur police chowki and was interrogating him. Meanwhile, he received a phone call of S.P. City from the spot. Her hands were tied behind her back, her legs were tied and a tape was placed over her mouth. 37. PW19 Inspector Amarjeet Singh has deposed that on 20.12.2020, he had taken Ramtirath to Mayapur police chowki and was interrogating him. Meanwhile, he received a phone call of S.P. City from the spot. S.P. City told him that Ramtirath has the key to the room located on the second floor of Rajiv’s house where he (Ramtirath) is residing. He sent the key through constable Pradeep Juyal. The appellant-accused Ramtirath Yadav has also stated in his examination-in-chief that he had the key of his room, which was taken away from him. 38. PW19 Inspector Amarjeet Singh has stated that he had also reached the spot. The hands and legs of the deceased were tied and a tape was placed over her mouth. There was no clothes below the waist of the deceased. The articles found on the spot were seized. The disclosure statement of the accused Ramtirath Yadav was recorded by him. At his instance, the underwear and paizama of the deceased were recovered at 9.15 a.m. He was arrested at 10.10 a.m. The birth certificate of the deceased (Ext. Ka.23) was obtained by him, in which her date of birth is mentioned as 06.02.2011. The said date of birth has not been questioned by the appellants. 39. PW12 Dr. Shivam Pathak has proved the post-mortem report. He deposed that there were several contusions on the dead body and her hymen was ruptured. The cause of death of the deceased was mechanical asphyxia due to compression over neck due to strangulation (anti-mortem) with suspected sexual assault. 40. Medical examination of the accused Ramtirath Yadav was conducted by Dr. Vikas Deep (PW15) on 21.12.2020 at around 3.00 p.m. He deposed that the accused had redness and swelling on the tip of his penis. He had taken the blood sample, pubic hair, nails, a glans penis swab, two glans penis slides of the accused Ramtirath Yadav. 41. 40. Medical examination of the accused Ramtirath Yadav was conducted by Dr. Vikas Deep (PW15) on 21.12.2020 at around 3.00 p.m. He deposed that the accused had redness and swelling on the tip of his penis. He had taken the blood sample, pubic hair, nails, a glans penis swab, two glans penis slides of the accused Ramtirath Yadav. 41. Blood samples, pubic hair, nails, a glans penis swab, two glans penis slides of the accused Ramtirath Yadav, taken during his medical examination, the clothes he was wearing at the time of the incident, tapes, nails, clothes, two vaginal smear slides, two cervix slides, cervix swab, three vaginal swabs, a anal swab, blood sample of the deceased and blood sample and underwear of the accused Rajiv and ropes were sent to the Forensic Science Laboratory, Uttarakhand. 42. As per the report of the Forensic Science Laboratory dated 08.01.2021, the tapes, underwear of accused Ramtirath Yadav, vaginal smear slide of deceased, cervix slide of deceased, nails of deceased, vaginal swab of deceased and anal swab of deceased were found from a single female human source matching with the DNA profile obtained from the blood sample of deceased. The mix DNA profiles obtained from the underwear of the deceased, cervix swab of deceased, plastic ropes tied around legs of deceased, plastic ropes tied around hands of deceased and plastic ropes tied around neck of deceased were matching with each of the DNA profiles obtained from the blood sample of accused Ramtirath Yadav and blood sample of deceased but not matching with the DNA profile obtained from the blood sample of accused Rajiv. The report of Forensic Science Laboratory (Ext.Ka.7) has been proved by Dr. Manoj Agarwal (PW13), Scientific Officer of the said Laboratory. 43. The appellant Rajiv has been convicted for the offence under Section 201 IPC and Section 17 of the Act, 2012. 44. The provisions of Section 201 IPC, Section 16 and Section 17 read as follows :- “201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; If a capital offence. - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life. - and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment. - and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.” “16. Abetment of an offence.—A person abets an offence, who— First.—Instigates any person to do that offence; or Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence. Explanation I.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence. Explanation II.—Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III.—Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.” “17. Punishment for abetment.—Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence. Explanation.— An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.” 45. Abetment under Section 16 of the Act, 2012 is constituted by :- (i) instigating a person to commit an offence, or (ii) engaging in a conspiracy to commit it, or (iii) intentionally aiding a person to commit it. 46. Abetment is not a matter of mere suspicion or surmise. In the absence of any specific allegation that the accused did any of the acts covered by Section 16 of the Act, 2012, he cannot be convicted of the charge of abetment. In order to attract the application of Section 17 of the Act, 2012, specific allegation must be made as to what particular act was done by the accused which may be interpreted as an act of abetment. 47. It has been deposed by the father of the deceased that the accused Rajiv was also searching for the deceased along with them. The prosecution has not produced any evidence to show that at that time Rajiv was aware that a crime had been committed and that there was a dead body in the room. Dr. Purnima Garg (PW21), the Investigating Officer, has also clearly stated that no incriminating article was found at the instance of the accused Rajiv or from his possession. The report of Forensic Science Laboratory is also not adverse to him. Therefore, there is no positive, cogent and any reliable evidence placed on record against the appellant Rajiv by the prosecution to prove its case against him. As a result, the appellant Rajiv deserves to be acquitted of charges under Section 201 IPC and Section 17 of the Act, 2012. 48. The victim has filed the Criminal Appeal No.493 of 2023 against the appellant-accused Rajiv Kumar under the proviso to Section 372 of the Code on the ground of inadequacy of sentence. As a result, the appellant Rajiv deserves to be acquitted of charges under Section 201 IPC and Section 17 of the Act, 2012. 48. The victim has filed the Criminal Appeal No.493 of 2023 against the appellant-accused Rajiv Kumar under the proviso to Section 372 of the Code on the ground of inadequacy of sentence. In Parvinder Kansal vs. The State of NCT of Delhi, AIR 2020 Supreme Court 4044, the Hon’ble Supreme Court has held that no appeal can be maintained by victim under Section 372 of the Code on the ground of inadequate sentence. Therefore, the Criminal Appeal No.493 of 2023 is liable to be dismissed. 49. It is the stand of the prosecution that the appellant- Ramtirath Yadav was in police custody at the time of the disclosure statement recorded under Section 27 of the Indian Evidence Act which led to recovery of the underwear (Material Ex.29) and paizama (Material Ex.30). 50. In Delhi Administration vs. Bal Krishan and others, (1972) 4 SCC 659 , the Hon’ble Apex Court analyzed the concept, use and evidentiary value of recovered articles and held that Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered irrespective of whether such information amounts to a confession or not, under Sections 25 and 26 of the Evidence Act, no confession made to a police officer whether in custody or not can be proved as against the accused. But Section 27 of the Evidence Act is by way of a proviso to these sections and a statement, even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in Section 27 of the Evidence Act. 51. Analyzing the earlier decisions, in Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657 , the Hon’ble Supreme Court summed up the various requirements of the Section 27 of the Evidence Act as follows : (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) There upon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 52. In Madhu vs. State of Kerala, (2012) 2 SCC 399 , the Hon’ble Supreme Court held that the rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiate the truth of the confessional statement and since it is true that a Court must endeavour to search Section 27 of the Evidence Act has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act. 53. Mrs. Manisha Bhandari, Advocate appearing for the appellant Ramtirath Yadav has questioned the said recovery. She has submitted that as per the prosecution, the appellant was detained and interrogated by the police and on his disclosure the said clothes were recovered at 9.15 a.m. on 21.12.2020 at the instance of the appellant, while the appellant was arrested on 21.12.2020 at 10.10 a.m. Therefore, the provisions of Section 27 of the Indian Evidence Act are not attracted. But, the said contention raised by Mrs. Manisha Bhandari, Advocate are not legally acceptable. 54. In Perumal Raja @ Perumal vs. State Rep. By The Inspector of Police, 2024 INSC 13 , the Hon’ble Supreme Court held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Manisha Bhandari, Advocate are not legally acceptable. 54. In Perumal Raja @ Perumal vs. State Rep. By The Inspector of Police, 2024 INSC 13 , the Hon’ble Supreme Court held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. The Hon’ble Supreme Court further held that the correct interpretation would be that as soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is, therefore, in “custody” within the meaning of Sections 25 to 27 of the Evidence Act. It is for this reason that the expression “custody” includes surveillance, restriction or restraint by the police. 55. In the instant matter, the recovery is founded on the statements of the disclosure when the appellant Ramtirath Yadav was in custody. On a studied scrutiny of the evidence produced by the prosecution regarding the recovery, we do not find anything that the said recovery has really not been made on the information of the appellant Ramtirath Yadav and has been planted by the police. 56. Mrs. Manisha Bhandari, Advocate appearing for the appellant Ramtirath Yadav, argued that the cervix slides that was prepared from the cervix swab did not detect any semen and no semen was detected from the vaginal slides as also vaginal swabs of the deceased, therefore, the case of the prosecution against the appellant Ramtirath Yadav is not reliable. But, the said contention cannot be accepted in view of the post-mortem report and other evidence, produced by the prosecution. 57. Mrs. Manisha Bhandari, Advocate appearing for the appellant Ramtirath Yadav has contended that there are several contradictions in the statements of the prosecution witnesses. But she has not able to show that any contradiction goes to the root of the matter. 58. In State Represented by Inspector of Police Vs. 57. Mrs. Manisha Bhandari, Advocate appearing for the appellant Ramtirath Yadav has contended that there are several contradictions in the statements of the prosecution witnesses. But she has not able to show that any contradiction goes to the root of the matter. 58. In State Represented by Inspector of Police Vs. Saravanan and another, (2008)17 SCC 587 , the Hon’ble Supreme Court held that it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies. 59. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. 60. In Krishna Mochi Vs. State of Bihar, (2002)6 SCC 81 , the Hon’ble Supreme Court ruled that the Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case, discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that society suffers by wrong convictions and it equally suffers by wrong acquittals. 61. In view of the above detailed discussions, the entire evidence on record show that in all human probabilities, the rape and murder were committed by the appellant Ramtirath Yadav. The circumstances from which the conclusion is drawn are fully proved against the appellant Ramtirath Yadav and such circumstances are conclusive in nature. All the circumstances are complete and there is no gap left in the chain of evidence. Further, the proved circumstances are consistent only with the hypothesis of the guilt of the appellant Ramtirath Yadav and totally inconsistent with his innocence. Therefore, having re-appreciated the entire evidence on record, we concur with the learned trial court on the point of conviction of the appellant Ramtirath Yadav. It is not a fit case where impugned conviction of the appellant Ramtirath Yadav requires any interference. 62. Now the question arises whether death sentence should be awarded on the appellant in this case. 63. Mrs. Manisha Bhandari, learned counsel for the appellant, contended that the appellant was aged about 21-22 years at the time of incident. He has no criminal antecedent. Hence, he is liable to get opportunity of rehabilitation and reformation. 64. On the other hand, Mr. J.S. Virk, learned Deputy Advocate General, prayed for confirmation of the death sentence of the appellant. 65. In view of Section 354 (3) of the Code of Criminal Procedure, 1973, life imprisonment is the general rule and death sentence is an exception which may be imposed in rarest of rare case. For inflicting death sentence Judge is to assign special reason. 66. In Gurvail Singh alias Gala and Another Vs. State of Punjab, (2013) 2 SCC 713 , the Hon’ble Supreme Court held that the rarest of rare cases test (R-R Test) depends on the perception of the society and not “Judge-centric”. 67. In Mofil Khan Vs. For inflicting death sentence Judge is to assign special reason. 66. In Gurvail Singh alias Gala and Another Vs. State of Punjab, (2013) 2 SCC 713 , the Hon’ble Supreme Court held that the rarest of rare cases test (R-R Test) depends on the perception of the society and not “Judge-centric”. 67. In Mofil Khan Vs. State of Jharkhand, (2015) 1 SCC 67 , the Hon’ble Supreme Court observed that the “rarest of the rare” case exists when an accused would be a menace, threat and antithetical to harmony in the society. 68. After considering the judgments of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 , Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 , the Hon’ble Supreme Court in Mohd. Mannan alias Abdul Mannan Vs. State of Bihar, (2019) 16 SCC 584 observed:- “The proposition of law which emerges from the judgments referred to above is that death sentence cannot be imposed except in the rarest of rare cases, for which special reasons have to be recorded, as mandated in Section 354 (3) of the Criminal Procedure Code. In deciding whether a case falls within the category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socio-economic background, etc. Awarding death sentence is an exception, and life imprisonment is the rule”. 69. In the case of Surendra Pal Shivbalakpal Vs. State of Gujarat, (2005) 3 SCC 127, the appellant was found guilty by the Sessions Court for the offences punishable under Sections 363, 376 and 302 IPC. For the offence of murder he was sentenced to death. The High Court confirmed the conviction and the death penalty was imposed on the appellant for the offence under Section 302 IPC. The Hon’ble Supreme Court held, “The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The Hon’ble Supreme Court held, “The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from Uttar Pradesh and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment”. 70. In Kaumudi Lal Vs. State of Uttar Pradesh (1999) 4 SCC 108 , where the appellant was convicted for raping and murdering a young girl of 14 years of age, the Hon’ble Supreme Court altered the order imposing death sentence to imprisonment for life. 71. In the case of Bishnu Prasad Sinha and Another Vs. State of Assam, 2007 (11) SCC 467 , where the appellant was convicted for raping and murdering a girl of about 7-8 years of age, the Hon’ble Supreme Court held that it is not a case where extreme death penalty should be imposed. The death sentence was reduced to imprisonment for life. 72. In Sunil Vs. State of Madhya Pradesh, (2017) 4 SCC 393 , while dealing with the case under the Act, 2012 and under Section 302 IPC, where the age of the deceased, the niece of the accused, was 4 years and the age of the accused was 25 years and he was sentenced to death by hanging for the offence under Section 302 IPC, the Hon’ble Supreme Court had commuted the sentence of death into one of life imprisonment. 73. In the case of Bantu Vs. 73. In the case of Bantu Vs. State of M.P. (2001) 9 SCC 615 , there was nothing on record to indicate that the appellant had any criminal antecedents nor could it be said that he would be a grave danger to the society at large despite the fact that the crime committed by him was heinous. The Hon’ble Supreme Court held, “However, the learned counsel for the appellant submitted that in any set of circumstances, this is not the rarest of the rare case where the accused is to be sentenced to death. He submitted that age of the accused on the relevant day was less than 22 years. It is his submission that even though the act is heinous, considering the fact that no injuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and nosetrix (nostril) by the accused at the time of incident so that she may not raise a hue and cry. The death, according to him, was accidental and an unintentional one. In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence”. 74. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, (2009) 6 SCC 498 , the Hon’ble Supreme Court held that capital punishment should be awarded only in the rarest of rare cases and there must be clear evidence to indicate that the convict is incapable of reform and rehabilitation. The Hon’ble Supreme Court held, “The “rarest of rare” dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, alongwith other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of the rarest of rare doctrine”. 75. In Rajesh Kumar vs. State, (2011) 13 SCC 706 , the Hon’ble Supreme Court observed that the State had not given any evidence to show that the convict was beyond reform and rehabilitation was a mitigating circumstance, in itself. 76. In Sandesh Vs. State of Maharashtra, (2013) 2 SCC 479 , the Hon’ble Supreme Court held that it is for the prosecution to lead evidence to show that there is no possibility that the convict cannot be reformed. 77. The reformation and rehabilitation of a convict is a mitigating circumstance for the purposes of awarding punishment. But, the prosecution has not placed any material or evidence before the courts to arrive this conclusion that reformation, rehabilitation and social re-integration of the appellant into society are not possible. It is true that the appellant committed a most heinous crime but the following mitigating circumstances demand the lesser penalty:- (i) The appellant was aged 21-22 years at the time of the offence. (ii) He did not have any criminal antecedents. (iii) It cannot be said that he would be a menace to the society in future if the death sentence is not awarded to him. (iv) It cannot be said that reformation, rehabilitation and social re-integration of the appellant into society are not possible. 78. In view of the above and for the reasons stated above, we are of the opinion that it is not a case where extreme death sentence should be imposed. (iv) It cannot be said that reformation, rehabilitation and social re-integration of the appellant into society are not possible. 78. In view of the above and for the reasons stated above, we are of the opinion that it is not a case where extreme death sentence should be imposed. The ends of justice would be met if we commute the sentence of death to imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of twenty years. 79. We, therefore, allow the appeal, filed by the appellant Ramtirath Yadav, partly. We confirm conviction of the appellant Ramtirath Yadav on all the counts, but the death sentence, imposed on the appellant Ramtirath Yadav for the offence under Section 302 IPC and under Section 6 of the Act, 2012, is commuted to imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of twenty years. 80. The Reference is answered accordingly. 81. Criminal Appeal No.122 of 2022 is allowed. The conviction and sentence under Section 201 IPC and Section 17 of the Act, 2012, passed by learned Additional District and Sessions Judge / Special Judge POCSO, Haridwar against the appellant Rajiv Kumar, are set aside. The appellant Rajiv Kumar is acquitted of the charge under Section 201 IPC and Section 17 of the Act, 2012. He is on bail. His bail bonds are cancelled and the sureties are discharged. 82. Criminal Appeal No. 493 of 2023 is dismissed as non-maintainable. 83. A copy of this judgment be placed on the record of the Criminal Jail Appeal No. 18 of 2022, Criminal Appeal No.122 of 2022 and Criminal Appeal No.493 of 2023.