JUDGMENT : Sambasivarao Naidu, J This referred trial arose with the letter received from Metropolitan Sessions Judge, Ranga Reddy District, dated 19.02.2021, whereunder he sought confirmation of death sentence imposed in a sessions case vide S.C.No.592 of 2018 against the sole accused. Since the accused also filed an appeal, challenging the said Judgment, we have heard the learned Additional Public Prosecutor and counsel to whom the criminal appeal was referred by the legal-aid committee, together and disposing them under this Judgment. 2. Before discussing the grounds under which the appellant / accused sought for setting aside the Judgment, his conviction and sentence and also the letter from trial Court, it is just required to examine the contents of charge sheet filed against the appellant, charges framed against him, details of the evidence as well as arguments advanced by prosecution and defense. 3. The appellant herein has been prosecuted by the State, through police, Narsingi, with an allegation that he kidnapped a girl of five (5) years, committed rape on her and killed her. Thereby committed the offences under Section 363, 366, 376(A), 302 of Indian Penal Code (for short 'IPC') and under Section 5(l)(m) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). 4. The following is the case of prosecution in brief: PW l Smt. Ambika Mishra and PW2 Mr. Saradi Prasanna Mishra is wife and husband and hails from Ender Village of Odissa State. They have got two(2) children, a girl aged about five(5) years and a boy aged about two(2) years. They, in search of their livelihood, migrated to Hyderabad and were working with Arya Mithra Constructions, Alkapuri, Hyderabad. 5. The appellant hails from Kalimati Village of Madhya Pradesh and he too came to this State for eking livelihood and was working for the same construction company. 6. The prosecution has alleged that on 12.12.2017 at about 12:00 in the noon, the appellant took the daughter of PWs 1 and 2 who (hereinafter be referred as 'SM') on the pretext of giving chocolate towards a kirana shop. Later, he alone returned to the labour camp where all these workers were provided accommodation. When PW 1 enquired him about her daughter, the appellant told her that he left SM at labour camp and she might be playing somewhere. Later, he alone returned to the labour camp where all these workers were provided accommodation. When PW 1 enquired him about her daughter, the appellant told her that he left SM at labour camp and she might be playing somewhere. PW 1 and her family members searched for the girl in the colony, but could not found her. Therefore, PW 1 approached police and presented a report, narrating the above events, sought the help of police. The said complaint was registered as a case in Crime No.818 of 2017 for the offence under Section 363 IPC, by PW 11 who took up the initial investigation. He has examined PWs 1 and 2, collected the photographs of SM and visited the surrounding places of labour camp. In view of the specific allegation and suspicion raised by PW 1 in her report, the police took the appellant to police station at 11:00 p.m., on the same day and produced him before PW15/ Inspector of Police, Narsingi. The appellant was interrogated in the presence of PW8 and one Dara Narender (LW10). The appellant said to have confessed the commission of kidnap, rape and murder of victim / SM and lead the police to the place where he committed rape on SM and where he killed her. 7. The police have found the dead body of SM with multiple injuries on her head and on private parts. They have observed the scene of offence in the presence of same witnesses and prepared a mahazar and a sketch. The police after completing inquest on the dead body, referred the same to Osmania General Hospital for post mortem. They have obtained photographs at the scene of offence with the help of clues team. They have collected blood stains from the clothes of SM and other incriminating material including gunugu flowers which were there at the scene of offence also found in his pant at the time of his confession. The appellant was arrested, referred for medical examination and was produced before Court for judicial custody. 8. PW14 who conducted post mortem on the dead body of SM opined that she died due to crush injury to the head with evidence of forcible sexual intercourse. The other findings of the Medical Officer will be discussed in the later portion of this Judgment. 9. PW13, the Asst. 8. PW14 who conducted post mortem on the dead body of SM opined that she died due to crush injury to the head with evidence of forcible sexual intercourse. The other findings of the Medical Officer will be discussed in the later portion of this Judgment. 9. PW13, the Asst. Director of Telangana State Forensic Science Laboratory opined that the DNA profile of seminal stains on the frock of SM and DNA profile of seminal stains collected from appellant on cotton swabs are matching and it conclusively proves that they are of same biological origin. PW16 who took up the investigation, having completed the same filed charge sheet against the appellant. 10. The special Court took cognizance of the said charge sheet and after furnishing copies of police report along with all enclosures, examined the appellant and framed charges under Section 363, 376(AB), 302 IPC and under Section 5(l)(m) r/ w Section 6 of POCSO Act. The appellant denied the said charges. 11. In order to prove the said charges, the prosecution has examined PWs 1 to 16 and marked Exs.P1 to P13, MOs 1 to 12. After the examination of all the witnesses, the appellant was examined under Section 313 Cr.P.C., regarding the incriminating evidence placed against him. He has denied the said evidence. He did not choose to examine any witness. He has denied the allegations and pleaded before the trial Court that he was falsely implicated in this case. 12. The learned District Judge heard the arguments advanced by prosecution and counsel for the appellant, came to conclusion that the prosecution was able to prove the guilt of the appellant under Section 363, 376(AB), 302 IPC, convicted him under Section 235(2) Cr.P.C. The appellant is sentenced to undergo rigorous imprisonment for six (6) years and fine of Rs.1,000/- for the offence under Section 363 IPC, and was sentenced to death by hanging under two counts, subject to confirmation by High Court. 13. The letter received from the trial Court for confirmation of the said sentence is registered as Referred Trial No. l of 2021. The appellant filed appeal under Section 374(2) Cr.P.C., on various grounds. 14. The appellant, being aggrieved by the above Judgment filed appeal under Section 374 (2) Cr.P.C., on various grounds and the same was registered as Criminal Appeal No.448 of 2023. 15. The appellant filed appeal under Section 374(2) Cr.P.C., on various grounds. 14. The appellant, being aggrieved by the above Judgment filed appeal under Section 374 (2) Cr.P.C., on various grounds and the same was registered as Criminal Appeal No.448 of 2023. 15. The appellant has claimed that the impugned Judgment is contrary to the facts of the case; law and evidence and the conviction of the appellant is untenable. The prosecution was not above to prove his guilt beyond all reasonable doubt, the case of the prosecution is based on circumstantial evidence. The prosecution placed heavy reliance on the testimony of PW3, who is said to have last seen the deceased victim girl with the Appellant at her tea-stall. The said testimony of PW3 was used by the prosecution to buttress their application of the "Last Seen Theory" to convince the learned trial Judge of the appellant's guilt. The learned trial Judge erred in not taking into consideration that, though the appellant was alleged to have been last seen with the deceased victim girl by PW3 at about 12:30 P.M. to 01:00 P.M. on 12.12.2017, the body of the victim girl was discovered only at around 04:00 A.M. on 13.12.2017. As per the evidence of PW5, a huge time gap between the two events weakens the "Last Seen Theory", which cannot be found to be conclusively applicable in the present case to convict the appellant beyond all reasonable doubt for the offences alleged. While considering whether the "Last Seen Theory" could be applied to conclusively establish the guilt of an accused, the Hon'ble Apex Court in Rambraksh v. State of Chhattisgarh reported in 2016 (12) SCC 251 , wherein it was held that it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused". 16. The testimony and evidence of PW4 is replete with inconsistencies and appears to have been constructed with the sole intention to corroborate the testimony of PW3, who is his wife and through whom the prosecution has built the "Last Seen Theory" to convict the appellant. There is no clarity as to the distance between the scene of the alleged offence and the place where PW4 was carrying out curing work, and further, the alleged hearing of a small girl crying between 12:00 PM to 12:30 PM does not fit into the chain of events, as PW3 has stated in her testimony that the appellant had allegedly brought the deceased victim girl to her tea-stall at about 12:30 PM to 01:00 PM. 17. The appellant has further averred that the trial Court ought to have observed the inconsistencies in the version of the prosecution in respect of the alleged murder weapon said to have been used by the appellant, as the same has been inconsistently described as "cement boulder" in some testimonies and as "brick"/ "stone" in other testimonies and as such, the exclusion of the alleged weapon as a part of the evidence casts a cloud over the manner in which the investigation has been conducted. 18. It is further averred that the appellant made a confession before PW8, who was the mediator, but in the presence of police. The learned trial Court erred in holding the confession of the appellant made in the police custody as admissible, as the said confession allegedly resulted in the discovery of an unknown fact i.e., the location of the body of the deceased victim girl. Therefore, the learned trial Court ought to have considered that the said fact would have been discovered in the regular course of the investigation, as and when the body of the deceased victim girl would be discovered. Therefore, the learned trial Court ought to have considered that the said fact would have been discovered in the regular course of the investigation, as and when the body of the deceased victim girl would be discovered. The appellant has claimed that at the time of discovering the body of the deceased victim girl, there is no conclusive evidence that only the appellant was aware of the location, which was nevertheless accessible to the public at large. 19. The Court below ought to have considered whether the appellant was capable of reform and whether the appellant has previously engaged in acts of a heinous nature before imposing the sentence of death. The Court below failed to take into earnest consideration the socio-economic conditions as well as the state-of-mind of the appellant before imposing the sentence of death and failed to consider that the appellant has no previous criminal record and the likelihood of the appellant being a grave threat to the society at large was only a conjecture of the prosecution, as nothing has been placed on record to evince his criminal antecedents. The imposition of the death sentence by the Court below is contrary to the ratio laid down by the Hon'ble Apex Court in Kalu Khan v. State of Rajasthan, (2015) 16 SCC 492 , where it was held that life imprisonment would serve the object of reformation, retribution and prevention. The trial Court erred in holding that the case of the appellant belongs to the "rarest of the rare" category and ought to have followed the principle laid down by the Hon'ble Apex Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 , wherein it was held that "life imprisonment is the rule and death sentence an "exception". The trial Court has been largely influenced by the nature and brutality of the alleged crime while awarding the extreme sentence of death penalty and ought to have considered that the brutality of the alleged crime alone is not sufficient to impose the sentence of death and as such, the present case does not fall under the definition of the "rarest of rare cases. The Court below ought to have weighed the "aggravating" and "mitigating" circumstances of the case by taking into consideration the test laid down by the Hon'ble Apex Court in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 , viz., (a) manner of commission of murder, (b) motive for commission of murder, (c) if the nature of the crime is anti-social or socially abhorrent, (d) the magnitude of the crime, and (e) to consider the personality of the victim of murder. The above factors have to be viewed in tandem and the trial Court ought not to have overemphasized and singled out one such factor. Therefore, on all these grounds he prayed for setting aside the Judgment and conviction. 20. Learned counsel for the appellant Ms. Zainab Khan submitted arguments on various grounds, and it appears that she took pains to collect number of Judgments on the aspect of "rarest of rare cases" and the view of Hon'ble Supreme Court and various High Courts. She took us to various citations and tried to argue that the trial Court failed to appreciate the oral evidence in a proper way and missed the omissions, contradictions and discrepancies elicited during the cross examination of all the witnesses. She has submitted when the prosecution want to prove the case on the basis of circumstantial evidence, the chain of all circumstances must be complete and as there is no eye witness to the alleged offence, the prosecution sought to rely on the evidence of PWs 1 and 3 to prove that the deceased was last seen with appellant. There are glaring discrepancies in the evidence of PWs 1 and 3 and even if entire evidence of PW 1 is accepted she did not state before the Court that she saw the appellant taking SM and it is the evidence of PW 1 that appellant called her children to accompany him and sent her son to get money and took SM, so PW 1 never saw the appellant taking her daughter. She has also argued that PW3 stated before the Court that she saw the appellant in the company of SM and the dead body of SM was found at 04:00 a.m., on the next day, therefore, the last seen theory cannot be accepted. 21. The learned counsel next argued on the information reflected in Ex.P2, the alleged confession of the appellant. 21. The learned counsel next argued on the information reflected in Ex.P2, the alleged confession of the appellant. She has argued that initially the report of PW 1 was registered as case in Crime No.813 of 2017 under Section 363 IPC. Therefore, till the appellant said to have confessed the offence, there was no occasion for the police or panch witnesses to know the actual incident, but surprisingly Ex.P2 depicts the penal provisions under Section 363, 366, 376(A), 302 IPC and Section 5 r/w 6 of POCSO Act at the beginning itself, therefore, it is quite clear that the panchanama has been prepared to involve the appellant. 22. The next attack of the learned counsel is on the failure of police to seize the material object with which the appellant is said to have killed the victim. The learned counsel has argued that the evidence of the witnesses is not clear whether the appellant used brick, boulder or some other thing to kill the girl, there was no explanation for non-seizure of the said material object, because the Investigation Officer deposed that they have not seized the cement brick / boulder. The learned counsel has also argued that the prosecution is not clear about the exact location where the offence took place. The place where the police conducted Ex.P2 panchanama is quite visible to the passers-by, therefore, no one can commit such acts of rape and murder in a broad day light, thereby it is highly impossible and cannot be believed. 23. The learned counsel for the appellant has also submitted that the trial Court failed to put appropriate questions under Section 235(2) of Cr.P.C. after recording the finding that the appellant was found guilty. The Judge though gave a finding that he found the appellant herein guilty, did not try to elicit all the details from the appellant about his social status, responsibilities and without giving any opinion that there is no chance of the appellant realising the mistake and without considering his previous history and though there is no past criminal history imposed major punishment, thereby, even if the Court found the appellant guilty, he can be awarded lesser punishment. Therefore, on all these grounds, the learned counsel for the appellant sought for setting aside the judgment against the appellant. If not, he is entitled for the alternative punishment. 24. Therefore, on all these grounds, the learned counsel for the appellant sought for setting aside the judgment against the appellant. If not, he is entitled for the alternative punishment. 24. The learned Assistant Public Prosecutor supported the findings of the trial Court and also the capital punishment - awarded to the appellant. While placing reliance on the Judgment between Mohd. Firoz vs. State of Madhya Pradesh, she prayed for dismissal of the appeal filed by the appellant and prayed for confirmation of death penalty. 25. In the above referred Judgment, the Hon'ble Supreme Court made the following observations : 41. Once the theory of "last seen together" was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim. 42. In Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 : (2020) 1 SCC (Cri) 63, this Court has succinctly dealt with the doctrine of "last seen together" in the light of Section 106 of the Evidence Act. The relevant observations read as under : (SCC p. 632, para 12) "12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. The relevant observations read as under : (SCC p. 632, para 12) "12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances." 26. Before analyzing the allegations/ charges framed against the appellant and before appreciating the evidence on record, it is just and necessary to first examine the social status, life style of the parents of the victim and about the circumstances under which PW 1 approached the police with Ex.P1 complaint. PWs. 1 and 2 hails from a lower middle class family, who are not well versed with the Court or police station proceedings. By the time they approached the police, they were in deep shock as to how their little girl was missing from the locality. 27. PWs. PWs. 1 and 2 hails from a lower middle class family, who are not well versed with the Court or police station proceedings. By the time they approached the police, they were in deep shock as to how their little girl was missing from the locality. 27. PWs. 1 and 2 actually hail from Orissa State and they came to Hyderabad along with their two children, who were aged about 5 years and 2 years respectively. They have no prior acquaintance with the present appellant. They do not have any motive to file any false case against him. Similarly, they may not have made any such false allegation against the appellant if the actual culprit is some other person. PW 1, the poor mother of 5 years old girl, who was found missing after she was seen in the company of appellant, having exhausted all the attempts to find out the girl, lodged a complaint with specific allegation that the appellant took the victim to a kirana shop on the pretext of giving chocolates. There is no dispute about the missing of the girl in the afternoon time on 12-12-2017. The parents have again saw the dead body of the victim with multiple injuries and the posture of the dead body suggests rape followed by murder. 28. In order to prove charges leveled against the appellant, the prosecution has examined PWs. 1 to 16 and marked Exs.P1 to P13. According to the evidence of PW 1, on 12-12-2017, at about 12.30 Noon, while her children were paying in front of the house, the appellant who was her neighbour lured her children by saying that he would give chocolates and took the victim after sending the son of PW 1 into the house on the pretext of getting money and took the victim along with him. When PW 1 came out, the appellant and victim were not there. It is her further evidence that her daughter did not return, but she saw the appellant at his room, thereby, she enquired from him about her daughter, but the appellant told her he do not know anything about the girl. As they could not find her in spite of extensive search, they proceeded to police station and presented Ex.P1 raising suspicion against the appellant. 29. As they could not find her in spite of extensive search, they proceeded to police station and presented Ex.P1 raising suspicion against the appellant. 29. PW2 is her husband, though he did not see the appellant taking the victim, he was told by his wife about the above referred incident. PW3 is another independent witness, who had no motive to speak false against the appellant. According to the evidence of PW3, who was running a Tea Stall in the vicinity, she has got acquaintance with the appellant. PW2 and the appellant used to visit her Tea Stall. PW3 categorically stated before the Court that on 12-12-2017 in between 12.30 noon to 1.00 p.m., the appellant brought the victim to her Tea Stall and after purchasing chocolates, he left the place and on the next day, she came to know that the appellant kidnapped the victim girl, committed rape on her and killed her. PW4 is the husband of PW3 and he has corroborated with PW3 in all material particulars. 30. Ex.P1 is the complaint lodged by PW1. As per its report, there is a clear mention about PW1 seeing the appellant luring her daughter to give chocolates. Even though, so many suggestions were given to PW1 that she did not state before police that the appellant called her children and sent her son to get the money, and when her son came to the house, she enquired him about the victim and she was told by her son that she is waiting outside the house but when she came out her daughter was not there etc., these alleged omissions were not proved through the cross-examination of PW11 who has examined PWs 1 and 2 during investigation. 31. The evidence of PWs. 1 to 3 which was tested by lengthy cross-examination proved that the appellant herein took SM while she was playing in front of the house, PW3 saw the appellant along with the victim in the afternoon on 12-12-2017 when they went to her tea stall. PW1 found the appellant later in the same location. As per the evidence placed on record, all the workers were provided accommodation in a labour camp at Alkapuri. Therefore, the question of victim lost the way while playing in the camp does not arise. Both PWs.1 and 2 deposed that the Contractor provided accommodation and appellant used to stay in their neighbouring shed/hut. As per the evidence placed on record, all the workers were provided accommodation in a labour camp at Alkapuri. Therefore, the question of victim lost the way while playing in the camp does not arise. Both PWs.1 and 2 deposed that the Contractor provided accommodation and appellant used to stay in their neighbouring shed/hut. As per the evidence of PW11, after registering the complaint, he has examined both PWs. 1 and 2 and later he has handed over the case dairy to PW15, who proceeded with the further investigation. The learned counsel who defended the appellant before the trial Court did not cross-examine PW11 on the omissions, but tried to enquire PW15 whether PW1 stated about her noticing the appellant taking the victim. In fact in the complaint which was presented to police on the same day at 6.00 p.m., PW1 specifically mentioned that the appellant took her daughter. 32. The evidence of PW4 goes to show that on 12-12-2017 at about 12.00 Noon to 12.30 p.m., while he was working at RAW Garden Building which was under construction, he heard a small girl crying and later he came to know about the above referred offence. The age of the victim was 5 years. The evidence brought on record indicates that she was subjected to rape and death due to head injury, she might not have raised such a big cry which would create some suspicion but definitely she must have offered resistance but due to her tender age she must have succumbed to the brutal acts of the assailant. Therefore, the evidence of PW4 proved the incident that took place at the specific place to which the appellant lead the police. 33. PW5 categorically deposed about PW2 receiving a call from his wife while they were working at the construction site and about the search made by them and also about his accompanying PW1, PW2 to police station when PW1 presented a report to police. Therefore, the evidence of PWs.1 to 5 clearly show that the victim was last seen with the appellant in between 12.00 to 12.30 p.m., before missing from the locality and a complaint was lodged with the police at 6.00 p.m., on the same day. 34. The evidence of PWs. Therefore, the evidence of PWs.1 to 5 clearly show that the victim was last seen with the appellant in between 12.00 to 12.30 p.m., before missing from the locality and a complaint was lodged with the police at 6.00 p.m., on the same day. 34. The evidence of PWs. 1 and 5 further show that in the early hours of 13-12-2017, they received call from police and on information, they rushed to the place of offence where they found the victim with multiple injuries. 35. The evidence of PWs. 1 to 5 is corroborated by PWs.6 and 7. All these witnesses have got acquaintance with the appellant in view of his employment at the same sit, but they do not have any motive or reason to speak false against him. 36. The record further indicates that the police have apprehended the appellant in view of the specific information furnished by PW1 in her report and interrogated him before the independent mediators namely PW8 and LW10 Dara Narender. It is true, the alleged confession of the appellant while he was in the police custody is not admissible but the extent of his confession through which he lead the police to the scene of offence where the dead body of the victim was recovered and other material, can be accepted. It is the appellant, who lead the police to the scene of offence where they found the dead body of the SM. PW8 categorically deposed about the above stated discovery of dead body in pursuance of the confession of the appellant. PW8 deposed about their noticing dead body, he has described the posture of the girl when they reached that place and about the injuries which he found on her person. Having noticed bleeding from the private parts, this witness and others have realized that the girl was raped and killed. He has also deposed about the seizure of clothes of victim and appellant apart from seizure of other incriminating material. PW8 specifically stated before the Court that the police have collected blood stains from the brick which they found at the scene of offence and such blood stains were collected on swabs. The evidence of this witness about the collection of samples from the cement brick is further corroborated on PW10 a constable from Clues Team. PW8 specifically stated before the Court that the police have collected blood stains from the brick which they found at the scene of offence and such blood stains were collected on swabs. The evidence of this witness about the collection of samples from the cement brick is further corroborated on PW10 a constable from Clues Team. It may be true while describing the material object from which they collected blood stains, PW8 stated that the police collected blood from a brick. PW10 also deposed that they collected blood stains from a brick, but as per the confession of appellant it is described as boulder. The photographs obtained from the scene of offence also show the object which was used for killing the victim. It is a big brick which is generally used in the construction of big structures like apartments. It is true, the said brick / boulder is not seized by the police. But photograph has been obtained and blood stains on the said brick were collected on cotton swabs which were duly analyzed by Forensic Science Laboratory. Therefore, though the brick is not seized, it is not fatal to the case of prosecution. 37. It is true, as per the contents of Ex.P2 confession panchanama, there is a specific mention about the Sections of Law/ Penal provisions which attracts the case. The learned counsel while submitting her arguments before this Court pointed out unless the police completed the panchanama, they could not have noticed as to what exactly happened, thereby, the question of their mentioning the penal provision at the beginning of the panchanama creates any amount of doubt. However, the evidence of PWs.8 and 15 clearly shows that when appellant made a confession in Hindi language, it was translated and typed by a constable. Therefore, in order to have a fair copy, the police might have prepared Ex.P2 panchanama with true extract and mentioned the Sections of Law at the beginning itself. Since the evidence of PWs.8, 15 is further strengthened by the report received from Forensic Science Laboratory, such a minor discrepancy cannot be considered to raise a suspicion about the involvement of the appellant herein. 38. Since the evidence of PWs.8, 15 is further strengthened by the report received from Forensic Science Laboratory, such a minor discrepancy cannot be considered to raise a suspicion about the involvement of the appellant herein. 38. Therefore, the evidence of PWs.8, 10 and 15 proved the confession of appellant which lead the police to the scene of offence, discovery of dead body of the victim and seizure of blood stains and other stains on the clothes of victim and appellant. Therefore, the evidence of PWs.1 to 8 proved the following important aspects. 1. On 12-12-2017, in the afternoon time while the said SM was playing in front of her hut, the appellant took her along with him. 2. Both of them were seen by PW1 and later by PW3. The appellant took SM to the tea stall of PW3 and purchased chocolates and left the place. 3. Later, PW1 who could see the appellant alone in the locality enquired him about her daughter. 4. PWs.1, 2 and others searched for the girl and as they could not find her, PW1 along with her husband and PW5 went to police station and PW1 gave oral complaint which was reduced to writing as in Ex.P1. 5. In view of the specific allegation against the appellant, the police have apprehended him and interrogated him before PW8, LW10 Narender. 6. The appellant made a confession and lead the police to the place behind some bushes and police have recovered the dead body of SM which was naked. 7. The police as well as mediators noticed injuries on the head and bleeding from vagina, which suggested rape before she was killed. 8. PW15 could collect the blood samples etc., from the incriminating objects. The recovery of dead body was at the instance and on the confession of appellant. 39. The prosecution has examined PW9 to prove the inquest on the dead body of SM and the evidence of PW14 proved the post-mortem report of SM. PW14 found the following anti-mortem injuries on the dead body of SM. 1. Laceration, 2 x 2 cm x bone deep, over the midline on the forehead just below the hairline, margins are crushed and contused. 2. Laceration 4 x 2 cm x bone deep, over the left side of forehead, oblique margins are crushed and contused. 3. PW14 found the following anti-mortem injuries on the dead body of SM. 1. Laceration, 2 x 2 cm x bone deep, over the midline on the forehead just below the hairline, margins are crushed and contused. 2. Laceration 4 x 2 cm x bone deep, over the left side of forehead, oblique margins are crushed and contused. 3. Laceration 5 x 2.5 cm x bone deep, over the right forehead above the right eyebrow, oblique and parallel to the above mentioned laceration, margins are crushed and contused. 4. Laceration, 1 x 0.5 cm x muscle deep, just above the lateral end of right eyebrow with a surrounding contusion. Pieces of grass and fragments of leaves were present within the wounds. Underlying scalp contusion, 25 x 8 cm over the Frontal, right parietal and right temporal regions and 10 x 5 cm over the vault, involving the left frontal, temporal and left side of occipital bone, fracture line extending into the base of skull and crossing the midline. Diffuse subdural and subarachnoid hemorrhages all over the brain. 5. Contusion, 3 x 2 cm over the upper part of left ear pinna, eeddish in colour. 6. Contused Abrasion, 7 x 4 cm, over the left side of face, extending from the left temple to mid part of left cheek, reddish brown in colour. 7. Contused Abrasion, 4 x 3 cm over the neck on the left side just below the angle of mandible. 8. Multiple small pressure abrasions with sizes ranging from 0.25 - 0.75 cm over the back of shoulders front of chest and abdomen, reddish brown in colour. 9. Contusion, 4 x 3 cm, over the outer aspect of left arm, reddish in colour. 10. Laceration, 5 x 3 cm, over the posterior vaginal wall extending upto the anal sphincter, Grass and weeds recovered from the vaginal and pelvic cavities, uterus ruptured and lacerated into multiple pieces. tissues with blood clots. Contusion of pelvic 40. The report of PW14 has been marked as Ex.P11. The injuries mentioned at Serial Nos. l to 8 shows how brutally she was killed. Her head was crushed and contused. 41. Injury No.10 shows how brutally the little girl of 5 years was subjected to such a despicable act of violence. Her posterior vaginal wall was lacerated, her uterus was ruptured and lacerated into multiple pieces, pelvic tissues contused with blood clots. l to 8 shows how brutally she was killed. Her head was crushed and contused. 41. Injury No.10 shows how brutally the little girl of 5 years was subjected to such a despicable act of violence. Her posterior vaginal wall was lacerated, her uterus was ruptured and lacerated into multiple pieces, pelvic tissues contused with blood clots. A 5 years little girl for no fault on her part, having followed a man without knowing his real intention was subjected to inhuman brutal act and ultimately lost her life in a most horrifying situation. 42. The prosecution, in order to find out the involvement of appellant in the above offence, not only relied on the oral evidence of PWs.1 to 8 but also produced scientific evidence. PW 10 proved the collection of blood and other stains from the scene of offence. PW 15 proved that he has forwarded all the said MOs to Forensic Science Laboratory. He has obtained permission from the Court to collect samples from the appellant for referring them to Forensic Lab for DNA report. 43. The evidence of PW13, the Assistant Director, Telangana State, Forensic Science Laboratory, shows that he has analyzed the blood samples of appellant along with the seminal stains found on the clothes of victim and he is of the opinion that DNA profile of the source of seminal stains on the frock, cottons swabs matched with the DNA profile of the appellant and it conclusively proved that they are of same biological origin. 44. Therefore, the scientific evidence proved that it is the appellant who committed rape on SM and the body of the girl was found at the place to which he lead the police and the death of the girl was due to crush injury to the head, which proves the confession of appellant where he said to have informed the police that after committing rape twice on the victim, he has killed her, as she may reveal the offence to others. It also proves that as the violent act of rape caused her internal injuries, he might have thought he cannot escape if she was seen by her parents. 45. It also proves that as the violent act of rape caused her internal injuries, he might have thought he cannot escape if she was seen by her parents. 45. The appellant at the time of his examination under Section 313 Cr.P.C., has claimed that on the above stated day he had been to Shaikpet to watch a movie i.e., 12.00 Noon show and after watching the movie, he returned at 3.00 p.m., and at 4.00 p.m., police caught hold of him, took him to his room and collected his clothes etc. 46. The evidence collected by the prosecution clearly shows that PW1 presented a report to police at 6.00 p.m., on 12-12-2017 and the dead body of victim was found in the early hours of 13-12-2017. PW14 gave her opinion that SM died 18 to 24 hours prior to the post-mortem which was conducted at 11.45 a.m., on 13-12-2017. Therefore, victim must have died in between 11.45 a.m., to 5.45 p.m., on 12-12-2017. But until the police received Ex.P1 report, they have no knowledge about the above offence, thereby, the question of police apprehending the appellant at 4.00 p.m., on 12.12.2017 when the appellant was going to the room after allegedly watching movie does not arise. 47. The above stated rape and murder took place on 12-12-2017 which happened to be on Tuesday, a working day. It is the evidence of all the witnesses that the appellant hails from Madhya Pradesh State and came to Hyderabad, joined in the work. It also appears from the evidence that he has obtained some advance from the Contractor and purchased required provisions. Therefore, he is supposed to attend the work on all working days. Therefore, the contention of appellant that he had been to Shaikpet to watch a movie that too afternoon show on a working day is highly doubtful and it clearly shows that he is trying to escape by creating some alibi, which itself indicates his mind set. 48. Therefore, the evidence of PWs. l to 16 coupled with the documentary evidence proved the offences with which the trial Court found the appellant guilty. Absolutely, there are no grounds to raise any suspicion about the involvement of the appellant. There are no grounds to accept the claim that the appellant was falsely implicated in this case. 48. Therefore, the evidence of PWs. l to 16 coupled with the documentary evidence proved the offences with which the trial Court found the appellant guilty. Absolutely, there are no grounds to raise any suspicion about the involvement of the appellant. There are no grounds to accept the claim that the appellant was falsely implicated in this case. Therefore, for all these reasons, we are of the considered opinion that the trial Court rightly found the appellant guilty for the offences and the judgment cannot be set aside. 49. This is yet another most horrible and despicable act of violence against an innocent, helpless cute little girl of 5 years, who was subjected to most heinous and terrifying act of 'RAPE' and 'MURDER'. 50. The happy life of the girl was ended by a monstrous man, who caused internal injuries to a girl of tender age in the most abhorrent manner. Such an act is unforgivable. The family of SM which migrated from a different State only for the sake of earning something for their livelihood lost precious life of a girl from their family. 51. The next question that falls for our consideration would be sentencing the appellant i.e., whether to confirm the punishment imposed by the trial Court or to examine whether there are grounds to convert the capital punishment imposed on the appellant for the offence under Section 302 IPC as imprisonment for life. 52. Before dealing with the said aspect, we feel it appropriate to refer certain Judgments on this issue and place on record the statistics of identical cases in the recent years. 53. In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child Development campaigned the introduction of the POCSO Act, 2012. The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to 'deter' the perpetrators and ensure safety, security and dignified childhood for a child. But, according to the statistics available, child rape cases, covering various forms of penetrating assaults, have increased in the past eight(8) years. According to the statistics released by National Crime Records Bureau (NCRB), the increase in such cases is 96% from 2016 to 2022. 54. But, according to the statistics available, child rape cases, covering various forms of penetrating assaults, have increased in the past eight(8) years. According to the statistics released by National Crime Records Bureau (NCRB), the increase in such cases is 96% from 2016 to 2022. 54. The parents of a girl child always considered their daughter as princess of their home, and treat her as 'Maha Laxmi' the goddess of fortunes. Whenever the mother notice the dress of her child is messed-up or disturbed, how young she might be immediately try to adjust the same to protect the dignity and modesty of her child. But, here in the present case, PW l is the unfortunate mother had to see her daughter in such a situation where the naked body was exposed behind the bushes, smashed head, legs apart, bleeding from vagina unevenly twisted leg. This horrible scene which the parents witnessed in the wee hours on 13.12.2017 may be a nightmare which will haunt them throughout their life. They came to this place to provide something for the development of the family, but they lost their daughter in such a horrible rape and murder committed by this appellant. 55. The appellant has come from a family consisting one elder brother, one elder sister and one younger sister. So he cannot claim that he was suffering from any frustrations. PW 1, when she found the appellant taking her daughter did not raise any objection and it seems she did not feel it would be dangerous to leave the child with this man. But, the appellant, by breaking the said trust removed the little girl to a lonely place, raped her in a brutal manner and when she raised cries, smothered her face. To satisfy his evil desire, he has used force which caused laceration over the posterior vaginal wall extended up to anal sphincter and her uterus was ruptured, in spite of it he did not leave the girl. In order to save himself and to prevent the girl from revealing the acts, he has killed her by smashing her head. One can imagine the horrible situation whereunder the poor girl lost her dignity and valuable life as well. 56. It may be true, after the pronouncement of Judgment by the trial Court and imposition of capital punishment while undergoing the sentence, the appellant tried to show all good qualities. One can imagine the horrible situation whereunder the poor girl lost her dignity and valuable life as well. 56. It may be true, after the pronouncement of Judgment by the trial Court and imposition of capital punishment while undergoing the sentence, the appellant tried to show all good qualities. Having committed such a heinous offence, if suddenly he became a saint, can it be believed? Certainly 'No’. It must be only to gain sympathy and may be because he is conscious of his appeal is pending before the High Court. 57. The learned counsel Ms.Zainab Khan while taking us to various Judgments has submitted that in view of the settled law and in view of the Judgments relied on by her, imprisonment for life is rule and death penalty is only exception in case of punishment for the offence under Section 302 IPC or even for the offence under Section 376(AB) IPC. She has filed written arguments and sought to rely on the Judgments of various High Courts and Hon’ble Supreme Court. She took pains for preparing two volumes of compilation with the copies of various Judgments, both on appreciation of evidence and sentencing in rarest of the rare cases. 58. In a Judgment between State of Uttar Pradesh vs Satish, 2005 (3) SCC 114 , wherein the Hon’ble Supreme Court had referred to the guidelines laid down in Bachan Singh vs State of Punjab will have to be applied to the facts of each individual case. 59. In a Judgment between Dhanunjay Chatterjee @ Dhana vs State of West Bengal, 1994 SCC (crl.) 358 in para Nos.14 and 15 it is observed that: 14. In recent years, the rising crime rate -particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 60. In another Judgment between Molai and another vs State of Madhya Pradesh, ( 1999 (9) SCC 581 ), Wherein the Hon’ble Supreme Court has observed that : 36. We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various decisions of this Court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely Jails in the category of one of the rarest of rare cases, and if this be so, the courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16-year-old girl, was preparing for her Class 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharpedged weapon. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharpedged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigating circumstance from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below. 61. In a Judgment between Laxman Naik Versus State of Orissa, 1994 (3) SCC 381 , wherein it was observed in para No.28 that: 28. The evidence of Dr. Pushp Lata, PW 12, who conducted the post-mortem over the dead body of the victim goes to show that she had several external and internal injuries on her person including a serious injury in her private parts showing the brutality which she was subjected to while committing rape on her. The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blood ed and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code. As regards the punishment under Section 376, neither the learned trial Judge nor the High Court have awarded any separate and Additional substantive sentence and in view of the fact that the sentence of death award ed to the appellant has been confirmed we also do not deem it necessary to impose any sentence on the appellant under Section 376. 62. In view of the above stated legal propositions and in view of the guidelines laid down in Bachan Singh case, unless there are aggravating circumstances and unless the Court feels the case is one of rarest of the rare cases, the punishment to be imposed on the accused is only life imprisonment, but not the death penalty. Let us examine the present case. 63. The victim is only a five (5) year girl. She followed the appellant without any hesitation when he called her on the garb of giving chocolates. She was brutally raped which is evident from the medical report. The injuries to uterus and other internal organs show the extreme brutality and depravity. 64. One can assess the situation of the girl who was taken to open lands where there are bricks and other construction material and was made to lie naked and ravished. The injury certificate is proof of such inhuman behavior. This little girl who was raped in such a manner was killed in horrible way by throwing a boulder/brick on her head causing multiple fractures on the head. 65. The appellant simply left the dead body in the said area and returned home as if he did not commit any offence and such a behavior clearly show his mindset. It is quite clear that he did not even repent. When he is examined under Section 313 Cr. P.C., after conclusion of evidence of the prosecution, he tried to escape by saying that on that particular day he went to watch "Bahubali" movie and police have falsely implicated him in the case. He tried to set up alibi. His behavior to destroy a budding girl does not require any sympathy. 66. When he was examined by the Court on the proposed sentence, he said he was married and had two children. It may be true he has no past criminal history. At the time of the above offence as per the confession vide Ex.P1 he was unmarried. His behavior to destroy a budding girl does not require any sympathy. 66. When he was examined by the Court on the proposed sentence, he said he was married and had two children. It may be true he has no past criminal history. At the time of the above offence as per the confession vide Ex.P1 he was unmarried. At the time of his examination under Section 235(2) Cr.P.C., on 09.02.2021 on sentencing he has claimed that he was married and he has two children. The trial Court had informed the appellant that since his guilt for the offences under Section 363, 376 (AB), 302 IPC and under Section S(l)(m) of POCSO Act are proved, he is liable for punishment which includes death penalty. He did not state anything, except saying that he did not commit any offence. 67. In a Judgment between Madan Gopal Kakkad vs Naarval Dubey and Another, 1992 (3) SCC 204 , the Hon’ble Apex Court was pleased to observe that "offences of sexual assault who are menace to the civil society should be mercilessly and inexorably punished in the severest terms". In the said Judgment it was further observed that "we feel that Judges who bear the sword of justice, should not hesitate to use that sword with utmost severity, to the full and to the end if the gravity of the offences so demand". 68. While the bench was hearing the appeal, another similar incident was reported in the press. A six(6) year old girl was allegedly raped and killed at a rice mill at Katnapalli in Sulthanabad Mandal of Peddapalli District. It was alleged that one Vinod a migrant from Bihar State, while the mother of the victim slept in the open place in front of the house due to power cut along with her six year old girl, removed the girl and it is alleged that in CCTV footage he was seen removing the girl, whose dead body was found later in open fields. 69. The aim of imposing punishment on an offender is retribution, justice, deterrence, reformation and protection. Therefore, by imposing sentence on an accused whose guilt is proved the offender should be given appropriate punishment and it must be to deter the others to realize that any such offence is committed they too will receive the same punishment. 69. The aim of imposing punishment on an offender is retribution, justice, deterrence, reformation and protection. Therefore, by imposing sentence on an accused whose guilt is proved the offender should be given appropriate punishment and it must be to deter the others to realize that any such offence is committed they too will receive the same punishment. So the aim of imposing punishment is deterrence of not only the actual offender but also potential offenders from breaking the law, so that the society will be protected. 70. If any offender who has committed brutal rape on five years girl and killed her by crushing her head under the heavy boulder is left with imprisonment for life allowing him to enjoy the remaining life even without bothering to earn any livelihood by attending a job/work definitely it will give a wrong signal to the potential offenders and an impression to the society and people that they are living in a most unsafe situation. If the parents of a girl like SM feels that there is no safety to their children at school, hospital or play ground and in the hands of neighbours, it create havoc. Therefore, offences like the one committed by the appellant shall be dealt with appropriate punishment. 71. Therefore, the crime that was committed by the appellant being extreme depravity shocks the conscience, the appellant deserves the extreme punishment i.e., imposition of death penalty. The trial Court has thus rightly imposed the said punishment, and we see no grounds to set aside the said punishment by converting the same into life imprisonment. As such, the punishment imposed by the trial Court being justified has to be confirmed and the appeal filed by the appellant is liable to be dismissed. (Per The Hon’ble Sri Justice P. Sam Koshy): 72. The recovery of the dead body at the instance of the appellant and the other incriminating circumstances gathered during the investigation all go against the appellant. The DNA test also conducted from the articles that were seized from the scene of occurrence matched with the DNA profile of the accused/appellant and conclusively proving that they are from the same biological origin, thereby further establishing the case of the prosecution against the appellant. The DNA test also conducted from the articles that were seized from the scene of occurrence matched with the DNA profile of the accused/appellant and conclusively proving that they are from the same biological origin, thereby further establishing the case of the prosecution against the appellant. Hence, I am in full agreement with the view and finding penned by the Hon'ble brother Judge so far as the guilt of the appellant being proved beyond all reasonable doubts. I am also in full agreement so far as the confirmation of the penalty of death awarded by the Trial Court and which has the approval of my Hon’ble brother Judge also. 73. However, with all due respect to the Hon’ble brother Judge, I would like to add a few paragraphs on the aspect of the "sentencing" and the "doctrine of rarest of rare" so far as awarding of capital punishment is concerned. 74. I would like to start my views on the point of "sentence" by borrowing a passage from a recent judgment dated 19.04.2022 in the case of Mohd. Firoz vs. State of Madhya Pradesh, 2022 LiveLaw (S.C.) 390, wherein the Hon’ble Apex Court held at paragraph No.40 as under, viz., "40. As demonstrated earlier, once again one of the most barbaric and ugly human faces has surfaced. A tiny bud like girl was smothered by the appellant before she could blossom in this world. The monstrous acts of the appellant suffocated the victim to such an extent that she had no option but to leave this world. Once again, all the Constitutional guarantees have failed to protect the victim from the clutches of the demonizing acts of the appellant. In the opinion of the Court, any sympathy shown to the appellant would lead to miscarriage of justice. However, it has been brought to the notice of this Court that in a series of judgments, this Court has not treated such case as the "rarest of rare" case." 75. Undoubtedly, there are strong divergent views within the society when it comes to the question whether or not death penalty should be awarded in gruesome criminal acts or not. It has been always propounded that life imprisonment is the rule and the death sentence is an exception. Undoubtedly, there are strong divergent views within the society when it comes to the question whether or not death penalty should be awarded in gruesome criminal acts or not. It has been always propounded that life imprisonment is the rule and the death sentence is an exception. It has also been the view of the Hon’ble Apex Court repeatedly that, death sentences must be imposed only when life imprisonment appears to be totally inadequate punishment considering the circumstances of the crime. 76. There can be no statutory definition of rarest of rare. It all depends upon the facts and circumstances of each case. Each case has to be measured on its own factual backdrop like brutality of the crime, the conduct of the offender etc. while deciding the sentence part. What needs to be considered, at this juncture, is that Indian laws do not hold a steady perspective of capital punishment, but at the same time, India also does not dissuade it completely. Death penalties have been awarded in India occasionally, but in rarest of rare cases. There are still offences including laws those have been enacted in India as late as in the year 2023 which came into force from 0l.07.2024 where there are offences which are punishable with capital punishment. There again can be no dispute as to the fact that there is a global tendency being propagated towards abolition of the extreme penalty. 77. So far as the Indian criminal justice system is concerned, the doctrine of rarest of rare came up for consideration for the first time in the case of Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 . In the said decision, the Hon’ble Supreme Court while considering the constitutional validity of imposing death penalty after much deliberation and discussion has affirmed its constitutional validity. However, the Hon'ble Supreme Court in the said judgment itself laid down the principle that death penalty must be awarded only in the rarest of rare case. The Hon’ble Supreme Court also set down the norms and standards to be kept in mind while awarding death penalty. The ratio laid down in the case of Bachan Singh (supra) is that death sentence is constitutional under the Indian laws. However, the same can be imposed where all other alternative sentence would not be commensurate to the gravity of the offence. The ratio laid down in the case of Bachan Singh (supra) is that death sentence is constitutional under the Indian laws. However, the same can be imposed where all other alternative sentence would not be commensurate to the gravity of the offence. In other words, as per the decision of the Hon’ble Supreme Court in the case of Bachan Singh (supra), the death penalty can be awarded only where the Court is gratified that it is a rarest of rare case. 78. After the landmark decision of the Hon’ble Supreme Court in the case of Bachan Singh (supra). The next authoritative decision on death penalty is the case of Machhi Singh vs. State of Punjab, (1983) 3 S.C.C. 470 refining the principle and doctrine laid down in the case of Bachan Singh (supra), the Hon'ble Supreme Court while deciding the case in Machhi Singh laid down certain criteria for assessing those cases which would fall under the ambit of "rarest of rare" case. Some of these criteria are as under, viz., "1. Manner of commission of murder : When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community, for instance : (a) When the victim's house is on fire with the intention to bake him alive; (b) When the victim is tortured to inhuman acts in order to bring about his/her death; (c) When the body of the victim is mutilated or cut in pieces in a brutal manner. 2. Motive for the commission of murder : When total depravity and cruelty are the motives behind a murder, for instance. (a) A hired killer committing murder merely for the sake of a monetary reward. (b) A cold -blooded murder incorporating a thoughtful design in order to get control to inherit property or for any other selfish gains. 3. Socially abhorrent nature of the crime : When a murder of a person belonging to one of the backward classes is committed. Cases of bride burning, famously known as dowry deaths, are also covered in this. 4. Magnitude of the crime : When the proportion of the crime is massive, for instance, in cases of multiple murders. 5. 3. Socially abhorrent nature of the crime : When a murder of a person belonging to one of the backward classes is committed. Cases of bride burning, famously known as dowry deaths, are also covered in this. 4. Magnitude of the crime : When the proportion of the crime is massive, for instance, in cases of multiple murders. 5. Personality of victim of murder : When the murder victim is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc.," 79. The Hon’ble Supreme Court in the case of Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973 S.C. 947 had made an observation that awarding of capital punishment was not meant merely to act as a deterrent but also to highlight the disapproval of the said crime on the part of the society. It was this observation which stood approved in the case of Bachan Sing h (supra) and all the subsequent decisions by the Indian Courts so far as awarding of death penalty is concerned. The proposition which culls out after going through the plethora of decisions rendered by the Hon'ble Supreme Court and various High Courts on the issue of identifying "rarest of rare" case is as under, viz., "(i) The extreme step of imposing death penalty need not be imposed except in cases of extreme culpability. (ii) Before opting out for capital punishment, the circumstances of the offender must need to accounted for (Aggravating and Mitigating circumstances). (iii) Life imprisonment is rule and death sentence is an exception. In other words, death sentence should only be imposed in cases where life imprisonment proves to be altogether insufficient punishment giving regard to accurate conditions of the crime. (iv) A balance sheet of all aggravating and mitigating circumstances needs to be drawn up and full weightage must be given to mitigating circumstances just so that a balance between both can be struck. " 80. Keeping in view the aforesaid proposition, what is required to be ascertained is whether the nature of the crime to be an uncommon one, unsocial to any prudent person or any person of the society with reasonable mindset and the brutality of the crime does not ascribe any other alternative punishment being sufficient for the said crime than that of death penalty. It is this that would carve out the rarest of rare situation. 81. It is this that would carve out the rarest of rare situation. 81. From the decisions rendered by the Hon’ble Supreme Court, it is apparent that death penalty is to be awarded to create a deterrent effect on the society so that such people should fear the consequences of the offence. Another aspect which crops up in the mind is, should a person not be awarded death penalty if he has crossed all limits of barbarity. From the moralistic point of consideration one may be convinced that such penalty 1s necessary to deter the other like-minded person. However, those who belong with a progressive mindset may argue the other way round. While deciding a penalty, the point to be considered is culpability of the act, the individual characteristics, the gravity of the offence and the circumstances under which the accused was at the time of committing the offence, motive of the offence, nature and magnitude of the crime, but above all, the personality of the victim of the offence and also the plight of the parents if the victim is an infant or a minor of very young age. 82. In the case of the State of Madhya Pradesh v. Naveen @ Ajay, 2018 SCC Online MP 952, the Hon’ble Court held in paragraph Nos.69 and 70 as follows: "69. The barbaric act of the appellant does not remotely show any concern for the precious life of a very small infant, who had really not seen life. The criminality of the con-duct of the appellant is not only depraved and debased, but can have a menacing effect on the society. 70. It was not committed by accused under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed and rehabilitated. The act of the appellant/accused meets the test of "rarest of the rare case". 83. In the case Viran Gyanlal Rajput v. State of Maharashtra, 2015 SCC Online Bom 380 supra, the Hon'ble Court in paragraph Nos.45 & 59 held as under: "45. In the case of Dhanajoy Chatterjee (supra), accused committed rape and murder of a young girl of about 18 years in the society where he was working as a security guard. 83. In the case Viran Gyanlal Rajput v. State of Maharashtra, 2015 SCC Online Bom 380 supra, the Hon'ble Court in paragraph Nos.45 & 59 held as under: "45. In the case of Dhanajoy Chatterjee (supra), accused committed rape and murder of a young girl of about 18 years in the society where he was working as a security guard. The Supreme Court observed that the measure of punishment in a given case must depend upon the atrocity of the crime, conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The Supreme Court further observed that the court must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 59. In our view, the reasons and findings recorded by the learned Additional Sessions Judge are based upon due appreciation of evidence and are consistent with the evidence on record as well as the settled legal principles. We have, therefore, no hesitation in confirming the sentence of death award ed by the trial court." 84. In the case of Dattatraya v. State of Maharashtra, 2014 SCC Online Bom 409, the Hon'ble Court held in paragraph Nos.80, 137, 141 & 142 as follows: "80. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a 'rarest of rare' cases where the sentence of death is eminently desirable not only expression to society's a abhorrence of such crime. 137. As far as mitigating circumstances are concerned, though we have searched minutely, we did not find any mitigating circumstance. The accused is neither too young nor too old. 137. As far as mitigating circumstances are concerned, though we have searched minutely, we did not find any mitigating circumstance. The accused is neither too young nor too old. It is also to be kept in mind that the Supreme Court in many decisions has stated that the age of the accused by itself cannot be the only factor which can be taken into consideration while considering the overall facts of the case. Moreover, no one is dependent on the accused and his family members are working and they are all independent. Thus even considering the crime test and criminal test as laid down in the case of Khade (Supra) which from para 57 of Khade's Judgment becomes clear are just different terms for aggravating circumstances (crime test) and mitigating circumstances (criminal test). We find that crime test is fully satisfied that is 100% and criminal test is 0%. 140. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub-serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present­ day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. Looking to the new enactments like PCFSO Act and amendment to IPC in relation to rape which have taken place keeping in mind the rising graph of sexual offences and especially of sexual offences against children and public outcry in relation to the same, the sentencing policy also now needs to be shaped keeping all these aspects in mind. We are of the view that awarding the death penalty in the present case takes into consideration all the four theories of punishment which can come into play in such cases. We are of the view that awarding the death penalty in the present case takes into consideration all the four theories of punishment which can come into play in such cases. It satisfies the deterrent theory of punishment as it would deter would be wrongdoers from committing similar crimes. It satisfies the preventive theory as it would physically prevent the present accused from committing such crimes infuture. It satisfies the retributive theory as the accused is sufficiently punished for his crimes as well as society feels that justice is done. As far as the last theory is concerned that is reformative theory, the history and the age of the accused is such that he cannot be given benefit of this theory. 142. Not only is the victim an innocent child and the accused a middle aged married man of 53 years of age with four children but the crime is committed in an extremely brutal, inhuman, grotesque, diabolical, revolting, and dastardly manner and is such as to arouse intense and extreme indignation of the society. The accused has acted in a totally beastly and perverse manner. It can hardly be even imagined that what torture and suffering the minor child must have faced during the course of commission of this crime. All her private parts were tom, lacerated and bleeding. It shows the extent of brutal sexual urge of the accused which targeted a minor child, who still had to see the world. The pain and agony that he must have caused to the deceased minor girl is beyond imagination and is the limit of viciousness. We have, therefore, no hesitation to hold that, in the perception of the society it would surely be a "rarest of rare" case wherein the death sentence is required to be imposed. The motivation of the accused, the vulnerability of the victim girl, the barbaric and inhuman nature of the crime and the execution thereof persuade us to hold that this is a "rarest of rare" case where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes and to prevent the accused from committing such acts for all times to come but also to give emphatic expression to society's abhorrence of such crime. Examining the case on the touchstone of the above decisions and balancing the aggravating and mitigating circumstances, we are of the opinion that the case can be appropriately called one of the rarest of rare cases deserving the death penalty. We are satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances. There can be no doubt that the offence committed by the accused deserves severe condemnation and is a heinous crime and on looking to the cumulative facts and circumstances of the case, we are of the opinion that the case falls in rarest of rare category, hence, we confirm the sentence of death." 85. Coming into the factual aspect in respect of the incident involved in the present case. One also cannot lose sight of the plight of the parents of the victim when they saw the body of their daughter/the deceased victim first time after she went missing. We have no hesitation in forming an opinion that the said scene must be still looming large in and around of the eyes of both the parents, even today in spite of so long a period having passed. The parents might still be having nightmares recollecting the scene and the incident and the plight of the victim that they saw at the scene of occurrence. Imagine the plight of a mother who gave birth to a girl child the eldest in the family and brings and nurture her up with high expectations, and as has been aptly stated by the Hon'ble Supreme Court in Mohd Feroz's case supra, "tiny bud like girl was smothered by the appellant even before she could blossom in the world. The parents when they were taken to the spot by the police authorities to identify whether the victim is their missing daughter or not, they saw their daughter viz., Shivani Mishra, aged around 5 years lying naked with both her legs spread wide, with injuries at her vagina and blood oozing out from the vagina and to make things worse, her head completely smashed with blood all around. The whole dream of the mother stands totally shattered. 86. The whole dream of the mother stands totally shattered. 86. In the case of Santosh Kumar Satisbhushan v. State of Maharashtra, (2009) 6 Supreme Court Cases 498, in paragraph No. 118 referring to the topic justice in capital sentencing the Hon’ble Supreme Court observed as under: "118. Justice must be the first value of the law of sentencing. A sentencing court must consider itself to be a "forum of principle". The central idea of such a forum is its continuing commitment to inhere a doctrinal approach around a core normative idea. "principled reasoning" flowing from judicial precedent or legislation is the premise from which the courts derive the power. The movement to preserve substantial judicial discretion to individualise sentences within a range of punishment also has its basis in the court's ability to give principled reasoning. " 87. From the judicial precedents referred to in the preceding paragraphs what also stands culled out is that the "rarest of the rare case" would be made out if the facts of the case satisfy to specific facts i.e., (i) that the case and the facts brings it out to be one among the rarest of the rare case category; (ii) the punishment of life imprisonment if awarded in such factual backdrop, would not do complete and substantial justice. Their Lordships of the Supreme Court while deciding the case of Santosh Kumar Satishbhusan (supra), in paragraph No.66, dealing on the aspect of what otherwise would construe as the rarest of the rare case has held as under: "66. The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of list 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. 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, along with other circumstances. 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, along with 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 the rare doctrine." 88. In the very same judgment again dealing with sentencing justifying in heinous crimes in paragraph Nos.71 & 72 has held as under: "71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded. 72. We must also point out, in this context, that there is no consensus in the Court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from bachan Singh in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are give primacy over sentiments and emotions." 89. The learned counsel for the appellant in the present case took the Bench through plethora of the judgments of the Hon’ble Supreme Court as also of the High Courts, where the penalty stands reduced to life imprisonment. 90. The factual aspect narrated by us which is described in a few paragraphs earlier, can easily lead us to reach to the conclusion that those decisions can be distinguished from the facts of the present case in hand. 91. As regards the aggravating and mitigating circumstantial evidence are concerned, no such special circumstance has been brought out by the learned counsel for the appellant to meet the two tests. 91. As regards the aggravating and mitigating circumstantial evidence are concerned, no such special circumstance has been brought out by the learned counsel for the appellant to meet the two tests. Merely because the appellant's conduct in the jail during the period of incarceration appears to be sober and soft with no complaints, cannot be accepted to be a strong ground for interfering with the capital punishment. 92. Another aspect which needs consideration is that the appellant/accused to the victim and parents of the victim was a neighbour. There is a great trust and faith that one have in a neighbour and if the neighbour himself acts like in a demon-like manner, no parent in the society would think of sending their daughters out of the house because of the distrust that they have in the neighbours. Another aspect which needs to be touched is the fact that the appellant himself had two minor children of approximately the same age that of the victim girl. In spite of that he could think of taking a young tender age girl around 5 years of age and do such a barbaric act followed by the gruesome murder. The little minor girl was totally defenceless and helpless before the appellant. There was nothing the minor child could have done to save herself. There was also no indication provided as to the fact that the appellant was living in frustration and the condition of the appellant was such that could have evoked such evil thoughts in his mind. Moreover, if the prosecution story is to be accepted as he recently came back from his native place from the company of his wife and children, which also is again a ground to say that there was no such reason for the appellant to feel frustrated. 93. It would had been altogether a different case if the appellant thought of only raping the minor victim and in the course of committing the said offence, she would have died for some reason. But, in the instant case, the appellant fulfilled his lustful desire then to ensure that she does not disclose the incident to anybody, thought of eliminating the victim and thereafter took the most dreadful decision and thereafter crushed the head of the minor victim. 94. But, in the instant case, the appellant fulfilled his lustful desire then to ensure that she does not disclose the incident to anybody, thought of eliminating the victim and thereafter took the most dreadful decision and thereafter crushed the head of the minor victim. 94. Here we cannot brush aside of the fact that the victim also underwent great amount of unbearable pain and agony while the appellant was committing the act of rape on her, and the pain and suffering that she underwent immediately after the act of rape where it seems that she had fallen unconscious. The severity of the act and offence got further enhanced when the victim had to undergo another horrifying episode of attack on her head in the process of which the head of the victim was crushed by the appellant as would be evident from the post-mortem report. During this time also the victim must have undergone un-bearable pain and agony. 95. There is no material on record by which it can be said that the appellant/accused was in any form of emotional or mental disturbance or there was any sort of provocation which led to the committing of the offence. The minor girl who was playing in front of her house where the neighbour was also present which made the mother go inside the house for some household work. The said neighbour took the child in the garb of getting chocolate from a nearby shop. The child went with the element of trust that they have in the neighbour. The neighbour buys a chocolate to the child and thereafter this dreadful act was committed by the appellant, which again establishes that there was no absolute material to show that the appellant was in any imbalanced emotional or mental state of mind. 96. Considering the nature of offence, the manner in which it was committed and upon evaluating the aggravating and mitigating circumstances, according to us, this is a case which falls in the category of "rarest of rare" case. The offence committed by the appellant/accused shows extreme depravity of mind and shows extreme perversity calling for extreme punishment. 97. In my considered opinion also the trial court was justified in awarding the capital punishment which does not warrant interference. Confirming the same, the appeal being devoid of merits deserves to be and is accordingly dismissed. 98. The offence committed by the appellant/accused shows extreme depravity of mind and shows extreme perversity calling for extreme punishment. 97. In my considered opinion also the trial court was justified in awarding the capital punishment which does not warrant interference. Confirming the same, the appeal being devoid of merits deserves to be and is accordingly dismissed. 98. Before concluding on this matter, we deem it appropriate to put on record our appreciation for the learned counsel for the appellant Ms. Zainab Khan to whom the matter was entrusted by the High Court Legal Services Committee, Hyderabad, to argue on behalf of the appellant for the excellent research in preparing herself in arguing the matter and the way in which she assisted the Court for the disposal of this referred trial case and criminal appeal. 99. In the light of the peculiar facts and circumstance of the case, we are of the considered opinion that the appeal preferred by the appellant/accused is liable to be dismissed and the appeal is accordingly dismissed. The sentence of conviction imposed in Sessions Case No.592 of 2018 dated 09.02.2021 passed by the Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District, against the appellant/accused for the offences under Sections 363, 376(AB) and 302 IPC, including the death sentence awarded to the appellant/accused for the offence under Section 376(AB) of IPC, is confirmed. The Referred Trial is answered accordingly. 100. Pending miscellaneous applications, if any, shall stand closed.