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Since the death sentence was directed to the appellant Mohd. Firoz, therefore a reference was made to this Cr.A.No.2920/13 & Cr.A.No.3132/13 Court by the learned Sessions Judge, Seoni, whereas the appellants have preferred the criminal appeals.

3. The prosecution case, in short, is that on 17.4.2013 at about 6:30 PM the appellant Rakesh Choudhary went with an unknown person to the house of the complainant Ramkumari (PW-1) situated at Village Ghansore (Police Station Ghansore District Seoni) on a pretext that the said unknown person was friend of her brother Shyam and he may be given some space in the house of Ramkumari and her mother Himma Bai (PW-6). Various children were playing in the courtyard. Himma Bai refused to provide the space to that unknown person, and therefore Rakesh Choudhary and his companion left the premises. After sometime it was found that the deceased-prosecutrix aged four years was missing. Ramkumari at about 8:35 PM lodged a missing report before the Police Station Ghansore. On 18.4.2013 some visitors found that one girl child was lying unconscious in the field of Badri Yadav. On getting information the witness Shyam Yadav went to the spot and found that the deceased-prosecutrix was lying unconscious and blood was oozing from her nostril. Her underwear was found lying in the side and skins of three bananas were also lying there. Shyam Yadav took the deceased-prosecutrix to the Government Hospital Ghansore. She was examined Cr.A.No.2920/13 & Cr.A.No.3132/13 by Dr. Bharti Sonkeshriya, who sent an intimation Ex.P-37 to the Police Station Ghansore. Thereafter with permission of mother of the deceased-prosecutrix and the SDM Ghanshore, the deceased-prosecutrix was examined by Dr. Bharti Sonkeshriya and thereafter she was referred to the Medical College, Jabalpur. The deceased- prosecutrix was unconscious and she was not able to give any evidence. In the Medical College, Jabalpur Dr. Bharti Sahu examined the deceased-prosecutrix and gave her report Ex.P-40. Dr. Hemant and Dr. P. Dhirawani had also examined the deceased-prosecutrix and treated her. They gave a report Ex.P-41. It was confirmed that rape was committed with the deceased-prosecutrix, and therefore the case was registered. Thereafter the deceased-prosecutrix was sent to the Care Hospital Nagpur so that her life could be saved, but on 29.4.2013 she expired at Care Hospital, Nagpur. Dr. Dipak Ramratan Goyal, who treated the deceased-prosecutrix found that due to pressure caused on the mouth and throat of the deceased, oxygen could not reach in the brain, and also due to contusion in the private part of the deceased-prosecutrix, she died due to cardiorespiratory arrest. Thereafter Dr. Pradeep Gangadhar Dixit did the postmortem on the body of the deceased at the Medical College, Nagpur and gave his report Ex.P-46. He also Cr.A.No.2920/13 & Cr.A.No.3132/13 found that the deceased-prosecutrix died due to bronchopneumonia and cerebral hypoxia owing to smothering. The various samples were sent to the Forensic Science Laboratory and investigation was done by the Investigation Officer. After much effort the appellant Mohd. Firoz was arrested. The identification parade was arranged with the help of Tahsildar Sudhir Jain (PW-16). Appellant Mohd. Firoz was duly identified by the complainant Ramkumari (PW-1), Ku. Priti Yadav (PW-7), Nitin Namdeo (PW-4) and Himma Bai (PW-6). Thereafter the clothings etc. of appellant Mohd. Firoz were recovered. His bag left in the house of Himma Bai was also seized and his various identity cards etc. were seized from that bag. Some of the documents relating to his identification were recovered from the room in which he was residing prior to the incident. After due investigation, the charge sheet was filed. The case was duly committed to the Sessions Judge, Seoni being Special Judge under Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act").

10. Second circumstance which is proved by the prosecution is that a rape was committed with the minor Cr.A.No.2920/13 & Cr.A.No.3132/13 prosecutrix and she died due to activities done by the person, who committed rape. In that respect the prosecution examined series of doctors who examined the prosecutrix from time to time including Dr. Bharti Sonkeshriya (PW-17). Dr. Bharti Sonkeshriya examined the prosecutrix and gave a report Ex.P-36. She has mentioned that blood was oozing from her nostril and surrounding of vagina was red. Looking to bad condition of the patient, she referred the patient immediately to the Medical College, Jabalpur and also sent an intimation to the police concerned. Dr. Bharti Sahu (PW-20) examined the deceased-prosecutrix at the Medical College, Jabalpur and gave a report Ex.P-40. She found that the deceased- prosecutrix was unconscious and in her arms and legs she was getting convulsions. There was redness on labia minora and abrasions on the surface on both sides. Hymen was torn for a length of 1cm at 6 o'clock position. She prepared the slides of her vaginal swab. She also took the frock of the child and thereafter handed over all such samples to the concerned Constable after their sealing. Dr. Hemant (PW-21), who treated the deceased- prosecutrix has found that the condition of the patient was bad. In the CT scan it was found that there was swelling on her brain. When medicine for reduction of swelling was given, she was getting convulsions and she Cr.A.No.2920/13 & Cr.A.No.3132/13 was feeling difficulty in taking breath. On 20.4.2013 the prosecutrix was discharged and referred to the Hospital of Nagpur. The physical condition of the prosecutrix- deceased could not be brought on record by such treating doctors because she was unconscious and she was unable to inform about the other injuries. But detail of various injuries etc. was given Dr. Pradeep Gangadhar Dixit (PW-24), who did the postmortem on the body of the deceased. He found that right upper central incisor tooth and left upper lateral tooth were missing. Upper left central incisor tooth was shaken and gums near those teeth were swollen and of blue colour. Labia majora and Labia minora were contused and swollen having blue colour. Wall of the vagina was broken at 6 o'clock position and also it was broken from various places. There was swelling on vaginal wall. Hymen was broken at 3, 6 and 7 o'clock position. Its opening was dilated. Swelling and bruise were found on her vagina. Dr. Pradeep Gangadhar Dixit found the following 13 injuries on the body of the deceased-prosecutrix, which are as under:-

11. After considering the evidence of various doctors, it would be apparent that forceful rape was committed with the deceased-prosecutrix and she died due to smothering. Hence the prosecution has successfully proved that the deceased-prosecutrix died due to smothering and looking to her injuries, penetration was done by the person concerned. The learned counsel for the appellant Mohd. Firoz has submitted that in the forensic science report Ex.P-72 no semen was found in the vaginal or uterine swab of the deceased-prosecutrix, and therefore it cannot be said that rape was committed with her. The submission made by the learned counsel for the appellant Mohd. Firoz cannot be accepted, because the Investigation Officer did not send the vaginal swab of the deceased-prosecutrix collected by Dr.Bharti Sahu (PW-20), who prepared two Cr.A.No.2920/13 & Cr.A.No.3132/13 slides of vagina smear on 18.4.2013. Dr. Pradeep Gangadhar Dixit (PW-24) had also prepared the slides of vaginal swab of the prosecutrix on 30.4.2013 which was sent to the FSL. The deceased-prosecutrix remained unconscious for 12-13 days, who was suffering from convulsions, therefore her vaginal liquid would have discharged the entire portion of semen etc. in those 13 days. If the slides prepared by Dr.Bharti Sahu could be timely sent to the FSL, then the positive report relating to presence of semen would have been found, and therefore if in the FSL report Ex.P-72 no semen particles were found in the vaginal swab of the deceased-prosecutrix, then it makes no difference. Looking to the reports of various doctors and Dr. Dixit, who performed the postmortem on the body of the deceased-prosecutrix, it would be apparent that rape was committed with the deceased-prosecutrix and thereafter smothering was done to her. Hence the death of the deceased was homicidal which was caused after committing rape upon her. This is the second circumstance proved by the prosecution beyond doubt.

(m) of IPC is also established against the appellant Mohd. Firoz.

Cr.A.No.2920/13 & Cr.A.No.3132/13

19. After considering the various injuries etc. and circumstances proved by the prosecution, it would be apparent that the appellant Mohd. Firoz had intended to kill the deceased-prosecutrix. The learned counsel for the appellant Mohd. Firoz has submitted that the appellant Mohd. Firoz never intended to kill the deceased during the intercourse. He tried to stop the crying of the prosecutrix, and therefore she sustained fatal injuries. However, she died after 12-13 days after the incident. The submission made by the learned counsel for the appellant Mohd. Firoz cannot be accepted, because the appellant Mohd. Firoz was not in a position to leave the prosecutrix-deceased alive, because neither the prosecutrix was known to him prior to the incident nor he was known to the family of the prosecutrix prior to the incident, and therefore after committing the crime of rape, it was for the prosecutrix to inform about the incident to her family members, and therefore the appellant Mohd. Firoz could not leave the prosecutrix being alive. He must have left the prosecutrix with the presumption that due to smothering she had expired. If the appellant Mohd. Firoz was not intended to kill the prosecutrix, then such injuries could not be caused on the lips of the prosecutrix. Various abrasions found on the neck also indicate that the appellant Mohd. Firoz tried to Cr.A.No.2920/13 & Cr.A.No.3132/13 commit throttling and thereafter left the body of the deceased at the spot. But since the deceased survived for 12-13 days, therefore apparent symptoms of throttling had disappeared and due to her survival she could breath for more days. If suffocation was caused during the course of rape, then certainly there was no question so that the prosecutrix would have received such injuries on her lips as well as on her neck. Dr. Pradeep Gangadhar Dixit (PW-24) has also found that the prosecutrix got two teeth broken and the gums near those teeth had turned blue and swelling was found. Such type of injury indicates that a heavy pressure was put on the mouth of the deceased-prosecutrix and due to that pressure she lost her teeth, and therefore her gums were found blue and swollen. Under such circumstances, looking to the factual position of the dead body of the deceased, it is established beyond doubt that the appellant Mohd. Firoz had intended to kill the deceased-prosecutrix. And he had smothered her so forcefully so that she would die on the spot. But the prosecutrix remained unconscious for 12-13 days. Swelling was found on her brain and other respiratory parts. Ultimately it was found by the various doctors that due to suffocation caused sufficient oxygen could not reach to her brain and such symptoms were developed and ultimately she died. Under such Cr.A.No.2920/13 & Cr.A.No.3132/13 circumstances, if the prosecutrix died after 12-13 days, then it does not mean that the injuries caused by the appellant Mohd. Firoz were not sufficient to cause her death in a routine course of her life. She survived for 12-13 days due to the best medical aid given to her by the State, otherwise she would have in all probability died in the field itself. Looking to the injuries caused to the deceased, it would be apparent that the appellant Mohd. Firoz had intended to kill the deceased, and therefore he smothered the deceased-prosecutrix till end and he left her when he thought that she has expired. Under such circumstances, where the murder was committed with intention, offence under Section 302 of IPC is established against the appellant Mohd. Firoz.