Rape Victim; State of West Bengal Vs. Binay Majhi [Calcutta High Court, 19-05-2016]

Contents

Penal Code, 1860 – Ss. 302, 363, 376(2)(f) & 201 – Rape and murder of an Eight year old girl – Death Sentence – the convict had no intention to commit murder of the victim but the victim could not bear the violent onslaught of the convict at the time of commission of such offence – The convict had also definite knowledge that by such action the victim could have died – Such offence of the convict would squarely fall within the purview of Section 304 (II) of the Indian Penal Code and accordingly reduced the sentence awarded by the Trial Judge under Section 302 of Indian Penal Code to one under Section 304 (II) of Indian Penal Code and sentence him to suffer Rigorous Imprisonment for 10(ten) years and to pay a fine of Rs.10,000/-(Ten thousand) i.d. Rigorous Imprisonment for 2(two) years – the court allowed the appeal in part and but did not approve the death sentence reference – the Court also upheld the order of conviction and sentence passed for the offence under Section 376(2)(f)  & 363 of the Indian Penal Code.

Penal Code, 1860 – S. 201 – Causing disappearance of evidence of offence, or giving false information to screen offender – Rape and murder of an Eight year old girl – the accused after commission of such offence concealed the dead body under water hyacinth of a pond in order to cause dis-appearance of the evidence of offence but ultimately the dead body was recovered pursuant to the information given by the accused. The accused also did not conceal the whereabouts of the dead body though initially he had concealed the dead body.  Therefore do not find any applicability of Section 201 of the Indian Penal Code and accordingly the conviction of the accused/appellant under Section 201 of the Indian Penal Code is set aside.

# Rape Victim


IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction Appellate Side

The Hon’ble Justice Nadira Patherya
And
The Hon’ble Justice Debi Prosad Dey

Judgment on : 19.05.2016

Death Reference No.05 of 2013

The State of West Bengal……………Respondent Versus Sri Binay Majhi……….Accused/Appellant (in Jail) With Criminal Appeal No.857 of 2013 Sri Binay Majhi……………Accused/Appellant(In Jail) Versus The State of West Bengal……………Respondent For the Appellant : Mr. Jayanta Narayan Chatterjee : Mr. Apalak Basu For the plaintiffs/ Respondents : Mr. Manjit Singh : Mr. Paban Kumar Gupta

Debi Prosad Dey, J. :-

This death reference being number 05 of 2013 arises out of the judgment and order of conviction dated 23rd August, 2013 and 26th August 2013 respectively passed by learned Additional District and Sessions Judge, Bolpur, Birbhum in sessions trial number 02(July)/2012 corresponding to sessions case number 70 of 2012 whereby and whereunder learned Trial Court has sentenced the appellant to death for the offence under Section 302 of Indian Penal Code and has also sentenced the appellant for the offence under

# Sections 363, 376(2)(f) and 201 IPC.

Pursuant to the reference made by learned Trial Judge under Section 366 Cr.P.C, the case has been placed before us for confirmation of such sentence of death. The appellant has also preferred an appeal, against such judgment and order of conviction, which has been registered as criminal appeal number 857 of 2013.

The death reference being number 05 of 2013 and criminal appeal number 857 of 2013 arise out of the selfsame judgment and order of conviction of learned Trial Judge and as such we have decided to dispose of the aforesaid matters by a common judgment.

It would not be out of place to mention in brief the facts of the case as well as the evidence on record in order to appreciate the rival contentions of learned Advocate appearing on behalf of the appellant as well as on behalf of the State.

The case of the prosecution, as has unfolded from the facts of the case is that the victim aged about eight years old fell prey to the unnatural lust for sex of the appellant and succumbed to the injuries sustained by her before experiencing the ninth spring of her life. One Santosh Kumar Dutta had been to village Santra within Police Station- Nanoor to attend the celebration of ‘Nabanna’ festival at his matrimonial home. At about 7.30/8.00 p.m. the daughter of Santosh Kumar Dutta was found missing. Santosh Kumar Dutta, defacto complainant along with other villagers started searching for his daughter in the village and even resorted to Miking for getting the whereabouts of his daughter. Disha Laha daughter of Abhiram Laha then informed that one Binay Majhi took the victim away towards Kandar alluring her to give some Chocolate. The defacto complainant and others then went towards Kandar to find the victim but in vain. Thereafter they went to the house of Binay Majhi and asked him about the whereabouts of the victim. At the outset Binay Majhi did not say anything but subsequently he admitted that in the evening of that day at about 7.30 p.m. he took away the victim on the plea of giving her chocolate towards the Kandar with ill motive and then committed rape on her against her will. The victim then told that she would disclose the matter to all as she was crying in pain and became unconscious. Binay Majhi then committed murder of that hapless victim by throttling her and concealed the dead-body in a pond, ‘Miyader Pukur’ of Shekherpara and returned home. The matter was then and there reported to police. The investigating officer reached the village at about 11/11.30 p.m. Search was conducted for recovery of the dead body and ultimately dead body was recovered from ‘Miyader Pukur’ at Shekherpara. The wearing apparels of the victim were also recovered near Kandar. The investigating officer held inquest of the dead body of the victim. The accused Binay Majhi was arrested at about 4.00 a.m. The wearing apparels of Binay Majhi were also seized by the investigating officer. After completion of investigation the investigating officer submitted report in final form (charge sheet) against the appellant Binay Majhi.

Learned Trial Judge after hearing both sides framed charges under Sections 363, 376(2)(f), 302and 201 IPC against the appellant. The contents of charges were read over and explained to Binay Majhi to which he pleaded not guilty and claimed to be tried. The prosecution has examined as many as sixteen witnesses and exhibited fifteen documents and four material exhibits in order to bring home the charges against the appellant. Learned Trial Judge sentenced the appellant to death for the offence under Section 302 IPC after examination of the appellant under Section 313Cr.P.C and after hearing learned Advocates of both sides and has also sentenced the appellant to suffer Rigorous Imprisonment of 5(five) years and a fine of Rs.1,000/-(rupees one thousand only) i.d. to Rigorous Imprisonment for 3(three) months for the offence punishable under Section 363IPC, and further Sentence of Rigorous Imprisonment for life and a fine of Rs.10,000/- (rupees ten thousand only) i.d. to Rigorous Imprisonment for 2(two) years for the offence punishable under Section 376(2)(f) IPC and also further sentence of Rigorous Imprisonment for 7(seven) years and a fine of Rs.3,000/-(rupees three thousand only) i.d. to Rigorous Imprisonment for 6(six) months for the offence punishable under Section 201 IPC.

Learned Trial Judge further directed that the period of detention undergone by the convict during the trial of this case be set off under Section 428 of the Cr. P.C. and the sentence of imprisonment awarded against the convict shall run concurrently.

Prosecution witness no.1 Santosh Kumar Dutta has corroborated the case of the prosecution as unfolded in the first information report. Prosecution witness no.1 further stated that Disha Laha daughter of Abhiram Laha informed them that his daughter was taken away by Binay Majhi towards the Kandar alluring her to give some chocolate. Prosecution witness no.1 and others tried to find out the victim in and around Kandar but in vain. Thereafter prosecution witness no. 1 and others went to the house of Binay Majhi and enquired from him about the whereabouts of the victim. At the outset Binay Majhi did not state anything but on constant pressure, Binay Majhi confessed that he took away the victim towards Kandar thereafter he raped the victim near the bush of ‘Phanimonosha’ in the field of ‘Charakdanga’ and thereafter killed the victim by strangulation near the Culvert at a little distance away of that ‘Phanimonosha’ bush and concealed the dead body in the nearby pond covering it with water hyacinth. Prosecution witness no.1 and others then took Binay Majhi with them towards the place of occurrence but some persons from Bagdipara forcibly snatched away Binay Majhi from their custody.

Prosecution witness no.1 and others then went to ‘Miyader Pukur’ at Sekherpara and by this time they had also informed the police at Basapara. Police came and joined with them. On reaching near the ‘Phanimonosha’ bush they saw the blood stained frock, inner wear (Jangia) with stool therein and one pink colour sweater of the daughter of prosecution witness no.1. They found blood stain on the earth under the Culvert. Ultimately they found the naked dead body of the victim which was concealed in the pond named after ‘Miyader Pukur’ at Shekherpara under the water hyacinth. Though it was pitch dark in the dead hours of night yet the dead body was recovered with the help of torch light and search light and as per the disclosure of the incident by Binay Majhi. Prosecution witness no.1 found that blood was oozing out from the mouth and vagina of his daughter. One photographer namely Bablu Saha having his studio at Nanoor under the name and style Mitali Studio, was called by police and the said photographer took some snaps of the naked dead body of the victim girl. Police conducted inquest over the dead body and sent the dead body to Bolpur Sub-Division Hospital for post mortem examination. Police also seized the blood stained frock, one brown colour inner wear (Jangia) and pink colour sweater of the victim in presence of prosecution witness no.1 and other prosecution witnesses. Prosecution witness no.1 identified such articles in Court, which were marked material exhibit I collectively. The frock of the victim was also identified by prosecution witness no.1 and marked as material exhibit II. Police also seized one wet black full pant (trouser), one blood stained shirt and one blood stained inner wear (Jangia) of the appellant and prepared seizure list. Prosecution witness no.1 signed on the seizure list vide exhibit 1/1. Prosecution witness no.1 handed over a written complaint scribed by one Shristidhar Ghosh (PW12) to the police and the signature of prosecution witness no.1 has been marked as exhibit 2/1. Prosecution witness no.1 also identified the seized wearing apparels of the appellant vide material exhibit no. III and IV. In his cross examination prosecution witness no.1 has however stated that he had no visiting terms with the accused but prior to that incident, the accused used to take his daughter on his lap whenever he used to visit the shop of his uncle in law for purchasing Bidi etc. and found his daughter there. Admittedly, Binay Majhi did not state anything at the outset but he confessed his guilt only after being physically assaulted by prosecution witness no.1 and others. Secondly, Disha Laha did not tell him about the exact time when Binay Majhi took away his daughter. This is all about the cross examination of prosecution witness no.1.

Prosecution witness no.2 Subodh Baran Laha has materially corroborated prosecution witness no.1 Santosh Kumar Dutta in respect of missing of the victim, information given by Disha Laha to the effect that Binay Majhi took the victim towards the field of Kandar on the assurance of giving her chocolate. Prosecution witness no. 2 Subodh Baran Laha has further stated that they came to know from Binay Majhi after a little scuffle that he took away the victim, committed rape on her and thereafter killed the victim. It is evident from such deposition of prosecution witness no. 2 that he came to know from Buddhadeb Mondal, prosecution witness no. 4 and Tarun Dey prosecution witness no. 11, that they had seen Binay Majhi near ‘Phanimonosha’ bush at Charakdanga field on that very day when they were returning to the village at about 8.30 p.m. Prosecution witness no.2 was present when the inquest report was prepared by the investigating officer and he has identified his signature thereon vide exhibit 3/1. He found injuries on the person of the victim. He also signed on the seizure list by which the wearing apparels of the victim was seized by the police vide exhibit 4/1. Prosecution witness no. 2 has also identified such articles on production vide material exhibit I and II. It has been elicited in the cross examination of prosecution witness no. 2 that he is the grandfather of the victim girl by village terms and that he came to know of the involvement of Binay Majhi in the missing of the victim from the statement of the Disha Laha. It has further been elicited in the cross examination of prosecution witness no. 2 that Binay Majhi once had stolen one bicycle and thereafter he was caught by the villagers. It is evident from his cross examination that Binay Majhi was in an inebriated condition when they had been to his house.

Prosecution witness no. 3 Netai Laha has fully corroborated the evidence of prosecution witness nos. 1 and 2 with regard to the missing of the victim, disclosure of Disha Laha, disclosure made by Binay Majhi the accused about taking away of the victim. Prosecution witness no.3 Netai Laha has also stated that the matter was thereafter reported to the police and dead body of the victim was recovered from under the water hyacinth in the pond of ‘Miyader Pukur’ and he found several marks of injuries on different parts of the dead body. Bablu Saha came there as photographer and took some photographs of the dead body. Prosecution witness no.3 also signed on the inquest report vide exhibit 3/2 and he was present at the time of seizure of the wearing apparels of the victim, some blood stained earth and some control earth and thereafter he signed on the seizure list vide exhibit 4/2 and 5/1. On production of the wearing apparels of the victim, prosecution witness no.3 identified the same (material exhibit I and II). Prosecution witness no.3 Netai Laha was also present when Binay Majhi was arrested from his house and when the wearing apparels of Binay Majhi was seized by the police. He identified such wearing apparels of Binay Majhi vide material exhibit III and IV.

It has been elicited in the cross examination of the prosecution witness no.3 that he had seen Binay Majhi in the shop of Dipak holding the victim on his lap on a number of occasions and that he came to know about the missing victim girl at about 7.30 p.m. Prosecution witness no.3 met Buddhadeb Mondal and Tarun Dey at Sivtala at about 8.35 p.m. and came to know from Shristidhar Ghosh about the disclosure made by Binay Majhi before him. As per prosecution witness no.3 the first information report was scribed near ‘Miyader Pukur’ and was handed over to the police on the spot. The defence took some contradictions from prosecution witness no.3 with regard to his statement before the police but curiously enough the investigating officer was not confronted with such contradictions.

Prosecution witness no.4 Buddhadeb Mondal along with Tarun Dey (prosecution witness no.11) were returning from Brahamn-Khanda (Basapara) on the fateful day at about 8.00 p.m. and when they reached near Charakdanga they found one red wet frock and one pant on ‘Phanimonosha’ bush beside the pathway and they also found Binay Majhi, who was standing at a distance of about 20 to 25 feet away from the said ‘Phanimonosha’ bush. They asked repeatedly about the identity of that person and thereafter Binay Majhi disclosed his identity and stated that he had some work there. Prosecution witness no.4 along with prosecution witness no.11 returned to Sivtala of their village. At Sivtala, they came to know about the missing victim girl and he then disclosed about seeing of such frock and pant on the ‘Phanimonosha’ bush and also about the presence of Binay Majhi thereat. Prosecution witness no.11 and others then went to the house of Binay Majhi but prosecution witness no.4 did not accompany them. Subsequently prosecution witness no.4 accompanied the search team and he was present when the dead body of the victim girl was recovered from ‘Miyader Pukur’. He found injuries on the dead body and he signed on the inquest report vide exhibit 3/3. Prosecution witness no.4 also signed on the seizure list by which the police had seized the wearing apparels of the victim vide exhibit 4/3. Prosecution witness no.4 also identified the articles vide Mat exhibit I and II. It has been elicited in the cross examination of the prosecution witness no.4 that the place where he saw the accused on that day, was a lonely place and people generally did not go to such place after sun set. It has also been elicited in the cross examination of prosecution witness no.4 that he knew about the bad reputation of the accused relating to his involvement with ladies prior to the date of occurrence.

Prosecution witness no.5 Bhagyadhar Ghosh has fully corroborated the statements made by prosecution witness no.1. Prosecution witness no.5 has stated in his evidence that Disha Laha daughter of Abhiram Laha disclosed that Binay Majhi took the victim away and prosecution witness nos.4 and 11 had seen Binay Majhi in the field of Charakdanga on their way back to the village. Prosecution witness no.5 further stated about the disclosure of Binay Majhi before Shristidhar Ghosh. He had accompanied the team to the house of Binay Majhi and found that Binay Majhi was in a state of intoxication. He has also stated about the extra judicial confession made by Binay Majhi with regard to the commission of the offence and concealing of the dead body of the victim at Miyader Pukur. The dead body was accordingly recovered and prosecution witness no.5 found injuries on the dead body. Prosecution witness no.5 signed on the inquest report vide exhibit 3/4. He was present at the time of seizure of the wearing apparels of the victim and he identified the said wearing apparels of the victim in Court vide Mat exhibit I and II. Police seized some blood stained earth and some control earth in presence of prosecution witness no.5 and prosecution witness no.5 also signed on the seizure list vide exhibit 5/2. Police also seized the wearing apparels of the Binay Majhi at the time of his arrest and prosecution witness no.5 identified the wearing apparels of the accused vide Mat exhibit III and IV.

Unfortunately, the statement made by prosecution witness no.5 in his examination in chief has been corroborated by his cross examination. It has been elicited in the cross examination of prosecution witness no.5 that he came to know from Disha Laha that Binay Majhi took the victim alluring her to give some chocolates and that he came to know from Binay Majhi that the dead body was concealed under the water hyacinth of ‘Miyader Pukur’. It has been simply suggested to prosecution witness no.5 that he has been tutored by the defacto complainant.

Prosecution witness no.6 Bablu Saha took the photographs of the dead body at the behest of the police and the said photographs have been marked collectively as exhibit 6 series. Prosecution witness no.6 is a formal witness. The entire case of the prosecution revolves round the disclosure made by prosecution witness no.7 Disha Laha and she is the only witness from whom the father of the victim and others came to know that in fact Binay Majhi took away the victim on the pretext of giving some chocolates towards Kandar. We will discuss the evidentiary value of prosecution witness no.7 later on. Let us see as to how this child witness has been treated and examined by the trial Court. Learned trial Court had put some questions to the witness prior to her examination and being satisfied about the capacity of understanding of such witness, has recorded the evidence of prosecution witness no.7 Disha Laha. We have minutely gone through such examination by the learned Trial Court and find that the witness has perfectly answered the questions put to her by the learned Trial Judge. Except for question no.6, all other questions have been perfectly answered. The witness being a child witness knows that Tiger lives in the forest. She has not yet been acquainted with the food habit of the Tiger and that is why she has stated that Tiger took grass as staple food. Therefore, we are satisfied that the witness has sufficient understanding to answer the questions and that the witness is competent enough to be examined as witness in a Court of law. In her examination in chief Disha Laha has categorically stated that Binay Majhi took the victim away on the pretext of giving her some chocolate towards the Kandar. She identified Binay Majhi in Court. It has been elicited in her cross examination that she had seen the accused on earlier occasion as the accused used to come to the shop of her grand -mother to purchase bidi. Curiously enough, it has been elicited in the cross examination of Disha Laha that on the day of occurrence also the accused came to the shop of Choto Dida to purchase bidi after killing her elder sister. Therefore, there is absolutely nothing in the cross examination to show that Disha Laha has had no capacity to understand the questions put to her or that she was not competent to be a witness or to show that she had been tutored to implicate the convict Binay Majhi falsely. On the other hand, in cross examination prosecution witness no.7 has confirmed as to how she came to know about the identity of Binay Majhi and that Binay Majhi returned to the shop of Shristidhar Ghosh immediate after such occurrence. This is all about the evidence of prosecution witness no.7 Disha Laha.

Prosecution witness no.8 Rimu Dey is the brother in law of prosecution witness no.1 and is a student of engineering. Prosecution witness no.8 has categorically stated about the missing victim and about the disclosure made by Disha Laha. Thereafter prosecution witness no.8 along with other persons went to the house of Binay Majhi and found him in drunken condition. Prosecution witness no.8 has further stated about such extra judicial confession of Binay Majhi and disclosure of Binay Majhi about concealment of the dead body of the victim. He identified the wearing apparels of the victim and the wearing appeals of the convict vide Mat exhibit I, II, III and IV. Curiously enough, it has been elicited in the cross examination of prosecution witness no.8 that he was present at the time of such statement given by Disha Laha and thereafter they went to the house of Binay Majhi and found him in drunken condition. It is also apparent from his cross examination that Binay Majhi was snatched away by some persons.

Prosecution witness no.9 Pradip Dey accompanied the search team. He has also stated about the disclosure made by Disha Laha and about the recovery of the dead body of the victim. Binay Majhi confessed his guilt not only before the villagers but also before the police. He has identified Mat exhibit I, II, III and IV in respect of the wearing apparels of the victim as well as of the convict Binay Majhi. It has been elicited in the cross examination of prosecution witness no.9 that they went to the house of Binay Majhi at about 10 ‘O’ clock in the night and thereafter at 4.00 a.m. in the morning when police arrested Binay Majhi.

Prosecution witness no.10 Nepal Dey is the father in law of the prosecution witness no.1. He has fully corroborated the statement made by prosecution witness no.1. Prosecution witness no.10 has stated in detail about the disclosure made by Disha Laha, the extra judicial confession made by Binay Majhi, seizure of the articles, recovery of the dead body at the behest of Binay Majhi, and seizure of wearing apparels of the victim as well as of the accused. It has been elicited in the cross examination of prosecution witness no.10 that he came to know from Disa Laha that Binay Majhi took away the victim towards Kandar and thereafter they went towards Kandar to search for the victim. It has further been elicited in the cross examination of prosecution witness no.10 that Binay Majhi confessed his guilt in presence of about 40/50 villagers as well as in presence of other witnesses and prosecution witness no.10.

Tarun Dey prosecution witness no.11 was in fact returning to the village at about 7.30/8.00 p.m. along with prosecution witness no.4 and on their way back near Charakdanga they found that one person was standing near the ‘Phanimonosha’ Bush. They wanted to know the identity of that person by asking him about his identity a number of times but that person did not respond. Prosecution witness no.11 then flashed his torch light and identified the person as Binay Majhi. On returning to the village, prosecution witness no.11 came to know about the missing of the victim and about the information given by Disha Laha. He accompanied the search team to the house of Binay Majhi and came to know from Binay Majhi that he had raped and killed the victim and thereafter had concealed the dead body at Miyader Pukur. Prosecution witness no.11 was also present at the time of preparation of seizure list in respect of the wearing apparels of the victim vide exhibit 5/3 and he has also identified the wearing apparels of the victim vide Mat exhibit I and II. Admittedly, the victim is a relative of prosecution witness no.11. It has been elicited in the cross examination of prosecution witness no.11 that Disha Laha was found sleeping but she woke up and stated that the victim was taken to Charakdanga field by the accused. Unfortunately, it has been suggested to prosecution witness no.11 that since they found Binay Majhi near the ‘Phanimonosha’ bush that’s why they have implicated Binay Majhi as the author of such crime out of suspicion. That goes to show that the defence has admitted regarding the presence of the convict at Charakdangar Math near ‘Phanimonosha’ bush on the fateful date and time.

Prosecution witness no.12 Sristidhar Ghosh has also materially corroborated the statements made by the witnesses referred to herein above. On the other hand prosecution witness no.12 has further stated that Binay Majhi visited his shop in drunken condition with wet shirt and pant on his person at about 9.00 p.m. and stated to prosecution witness no.12 (” Hey, Dilam (victim) ke mere punte”). Prosecution witness no.12 Shristidhar Ghosh did not believe such statement as Binay Majhi was under the influence of liquor. Subsequently he came to know that the victim was found missing and Disha Laha had disclosed that the victim was taken away by Binay Majhi. He had been to the house of Binay Majhi along with others and Binay Majhi confessed that he had raped and killed the victim and concealed the dead body in ‘Miyader Pukur’. Binay Majhi also admitted at the time of his arrest before the villagers that he had committed such offence. Prosecution witness no.12 has specifically stated that as per the disclosure of Binay Majhi, the dead body of the victim was recovered from ‘Miyader Pukur’. There is absolutely no challenge to such statement in the cross examination. It has been elicited in the cross examination of prosecution witness no.12 that initially he did not even suspect Binay Majhi even after hearing such statement from Binay Majhi since Binay Majhi was under influence of liquor but subsequently he came to know about such fact. It has also been elicited in the cross examination of prosecution witness no.12 that he had stated about such fact to the investigating officer. Unfortunately, the investigating officer was not confronted with regard to such statement of prosecution witness no.12.

Asit Dutta prosecution witness no.13 has materially corroborated the statements made by prosecution witness no.1. He was present at the time of seizure of wearing apparels of the convict vide exhibit 1/2. It has been elicited in the cross examination of prosecution witness no.13 that he heard that Disha Laha had disclosed before the villagers to the effect that Binay Majhi took her away on the pretext of giving her chocolate.

Prosecution witness no.14 Constable no. 424 Saiyad Kanan Ali is a formal witness. He has proved his signature on the dead body chalan vide exhibit 7/1. He identified the dead body at the time of post mortem examination. The doctor handed over the viscera, vaginal swab and post mortem blood of the deceased in three sealed containers to prosecution witness no.14 and he took the same to the investigating officer. He has proved his signature on the seizure list vide exhibit 8/1. Prosecution witness no.15 Sub-Inspector Arup Kumar Dutta is the investigating officer. At about 10.30 p.m. he got information over phone from Assistant Sub-inspector Bappaditya Ganguli of Basapara police camp that one girl of village Santra was missing and accordingly he directed Bappaditya Ganguli to proceed towards village Santra. Prosecution witness no.15 reached the village Santra at about 11.20/11.25 p.m. Prosecution witness no.15 thereafter went to Charakdanga field near ‘Phanimonosha’ bush along with the villagers. He found blood stain earth, one pink colour sweater, one blood stained frock and on Jangia near ‘Phanimonosha’ Bush. Thereafter he proceeded towards the culvert and found blood stained earth. Prosecution witness no.15 then posted police constables near the Phanimonosha bush. Finally, they reached ‘Miyader Pukur’ at Shekerpara and recovered the dead body of the victim from the water under the water hyacinth of the said pond. He found injuries on the dead body. In presence of witness he held inquest over the dead body vide exhibit 3, seized the wearing apparels found near the ‘Phanimonosha’ bush vide exhibit 4, seized blood stained earth and control earth from the said place of occurrence, took photographs of the dead body through photographer Bablu Saha. The seizure list is marked exhibit 5. He thereafter sent the dead body for post mortem examination. He received the written complaint from Santosh of the incident at Miyader Pukur and then he sent one constable Kalyanmay Bhattacharya to Nanoor police station for registration of a police case and came to know about the police case no.85/11 dated 10.12.2011 over phone from A.S.I. Parimal Biswas, who actually had registered the police case. He proved the formal first information report vide exhibit 9 and the endorsement on the written complainant vide exhibit 2/3 and the endorsement of ASI Parimal Biswas on the written complainant vide exhibit 2/4. Prosecution witness no.15 has accordingly prepared a rough sketch map along with index of two sheets vide exhibit 10. He has also proved the dead body chalan, prepared by him vide exhibit 7. In the wee hours of the morning of 10.12.2011 he arrested Binay Majhi and seized his wearing apparels vide exhibit 1. Prosecution witness no.15 has specifically stated in his examination in chief that Binay Majhi took him again to the place of occurrence i.e. near ‘Phanimonosha’ Bush where he had committed rape and thereafter to the culvert and to the Miyader Pukur where he had concealed the dead body of victim. Subsequently he sent the articles for FSL examination and he collected the FSL reports vide exhibit 11 series. On completion of investigation, the prosecution witness no. 15 has submitted charge sheet against the convict. Admittedly the convict was not present when the wearing apparels of the victim were seized and the accused was not under the influence of liquor when Binay Majhi was arrested by police at about 4.00 a.m. on the following day. Admittedly, Binay Majhi was examined by doctor before he was forwarded to the Court but no injury was detected on his person. It has been suggested to prosecution witness No.15 that Binay Majhi was roped in as accused in the case under reference out of suspicion and at the behest of the defacto complainant. Prosecution witness no.16 Dr. Soumitra Sinha was posted at Bolpur Sub-Divisional Hospital as Medical Officer on 10th December, 2011 and on that day he held post mortem over the dead body of the victim aged about 8(eight) years, brought and identified by constable no.424 Syed Kanan Ali in respect of UD case no.22/11, dated, 10.12.11 corresponding to Nanoor PS Case No.85/11, dt. 10.12.11 and during post mortem examination he found the following:

“Rigor Mortis was present;

Abrasions over back, both scapula region linear and 1 inch in length; Abrasions over each sides of lumber region; Abrasions over left elbow-1/1/2 inch in diameter;

Abrasions over neck on both sides below the angle of the mandible about 1 inch in length;

Cut injury over right angle of mouth-1/2 inch in length; Cut injury over right angle of eye -1/2 inch in diameter; Vagina was lacerated with complete perineal injury; Blood was coming out from vagina;

Hyoid was intact;

Blood and froth was coming out from mouth; Both lungs congested, pericardium congested, Heart chamber-right full and left empty;

In the stomach there was undigested food particles found and in small intestine there was partially digested food;

In large intestine facal matters were found; Liver was pale, splin, kidneys were congested, bladder was empty; Laceration in vagina with complete perineal tear.

As per the opinion of Dr. Soumitra Sinha the death of the victim was caused due to Haemorrhagenic with Neurogenic shock due to vaginal laceration and complete perineal tear. After going through the FSL report Dr. Soumitra Sinha has confirmed that no poison was detected in her viscera and accordingly the final opinion given by him regarding the cause of death of the victim was also confirmed by him. The report of post mortem examination has been marked exhibit 13 and the viscera report had been marked exhibit 14.

Admittedly Dr. Soumitra Sinha did not find any injury on the head or skull of the dead body and he did not find any water or fluid in the lungs or in stomach of the dead body. All the incriminating materials were put to the convict during his examination under Section 313 of the Code Criminal Procedure and the convict has categorically either denied or stated about his ignorance with regard to the circumstances proved by the prosecution against him during the trial of the case. The convict did not adduce any oral or documentary evidence. This is all about the evidence adduced by the prosecution to prove the charges against the convict.

Learned advocate Mr. Jayanta Narayan Chatterjee appearing on behalf of the convict/appellant contended that there is no eye-witness and the case is based on circumstantial evidence. The prosecution has failed to prove the circumstances beyond reasonable doubt and accordingly Trial Court has erred in awarding death sentence to the convict on the ground that the convict had committed rape and murder of the victim. The evidence of prosecution witness no.7 Disha Laha could not have been accepted since there was chance of tutoring Disha Laha who was then aged 6 years. It is submitted that on the date of occurrence Disha Laha was aged about 4(four) years only and she could not state anything before the learned Magistrate when produced for recording her statement under Section 164 Code of Criminal Procedure. Her 164 statement was recorded after 6 days from the date of incident. Disha Laha was again produced before the Court when she was aged about 6(six) years only and during the intervening period she was definitely tutored in order to book Binay Majhi as the culprit of the case. The Trial Court also did not consider that Disha Laha was not competent to be a witness under Section 118 of the Indian Evidence Act. The prosecution could not prove any circumstance beyond all shadow of doubt and without the evidence of prosecution witness no.7(which is also not admissible in accordance with law), there is absolutely no evidence to prove the charges against the convict/appellant beyond all shadow of doubt. He also vehemently criticized the manner of examination of prosecution witness no.

7. The 164 statement of PW7 was not exhibited by the prosecution nor was it relied on. This shows the malafide intention of the prosecution. Disha Laha prosecution witness no.7 could not state the time when the victim was lured by the convict/appellant. The parents of prosecution witness no.7 have been withheld by the prosecution. It is submitted that non- examination of parents of prosecution witness no.7 has cast serious doubt in the case of the prosecution. The statements made by prosecution witnesses no.4 and 11 are contradictory. Prosecution witness no.11 and 4 could not even identify the accused person on their way back to the village and in order to make their statement believable, prosecution witness no.11 introduced the story of flashing torch light. Prosecution witness no.4 did not state to that effect and that goes to show that the evidence of prosecution witness no.11 has been improved in order to suit the prosecution. Therefore the evidence of prosecution witness no.4 and 11 ought to be rejected. A new story has been told by PW12 (Shristidhar Ghosh). This shows the desperation of the prosecution to hold the accused guilty and ought not to be believed. The convict/appellant was not present at the time of seizure of the wearing apparels of the victim and such wearing apparels of the victim as well as the dead body of the victim were not recovered pursuant to the statement of the convict/appellant and such articles as well as the recovery of dead body is in-admissible in evidence. The prosecution will not get any advantage of such seizure of alleged wearing apparels of the victim. The evidence of prosecution witness no.12 being exaggerated should not be relied upon since it is unbelievable that Binay Majhi had returned to his shop at 9.00 p.m. and would disclose that he had raped and killed the victim. The case of the prosecution is doubtful due to non-examination of ASI Bappaditya Ganguli. None gave any description of the wearing apparels of the victim, when she was found missing, and accordingly it would be difficult on the part of the prosecution to prove that the wearing apparels seized actually belonged to the victim. Therefore the so called seizure of the wearing apparels of the victim ought to have been rejected by learned trial Court. The acceptance of the extra judicial confession by the Trial Court cannot be accepted as it is apparent from the cross examination of witnesses that convict/appellant was subjected to physical assault and thereafter the convict/appellant had made his so called extra judicial confession. The convict/appellant was subjected to force at the time of making the alleged confession and on that score alone, the so called extra judicial confession ought to have been rejected by learned trial Judge. The role of the Public Prosecutor is to ensure justice. In the instant case the conduct of the PP puts the case in doubt. These has been material suppression. The cuttings of the accused’s apparels was sent for FSL but did not match the blood of the victim girl though swab was sent for FSL. There were marks on the neck of the victim girl but the nails were not sent for FSL. It is submitted that ASI Bappaditya Ganguli was not examined by the prosecution. Secondly, no DNA profile was conducted so as to ascertain that the blood found on the wearing apparels of the convict/appellant is actually the blood of the convict/appellant or of the victim. The seizures have not been made in accordance with law. The investigation being absolutely defective makes the case of the prosecution doubtful and the convict/appellant cannot be convicted for such a serious offence on the basis of such defective investigation. The link between the accused/appellant and victim girl was not established although the Trial Court tried to chain the circumstances but the said was not linked. In spite of miking Shristidhar (PW12) did not detain the appellant. The last seen together Theory will also not apply. In the said Theory time is of great importance. PW1 has stated that till 7 p.m. the victim girl was seen. Although PW7 and the victim girl went to see Mela, the time when they went and returned has not been stated. There is contradiction in respect of the place from where the victim girl went missing. The time and place from where taken has also not been stated. The learned public prosecutor in the trial Court ought to have been fair in dealing with such seizures made by the police and ought to have stated to the Court that such seizures were not at all admissible in evidence. In support of his contention Mr. Chatterjee has relied on the decisions reported in

# (2015) 1 C. Cr. LR. (SC) 802 (State of Gujarat vs. Kishanbhai etc.)

and

# (1986) 1 Crimes 3(Prabhu Dayal vs State of Delhi)

to support his contention that the evidence of a child witness be looked into with caution.

# (2003) 3 SCC 21 (Bhagwan Singh & Ors vs. State of M.P.)

relied on

# Panchhi & Ors. Vs. State of Uttar Pradesh (1998) 7 SCC 177

for the proposition that a child’s evidence needs corroboration. Mr. Chatterjee has also relied on

# Nanda Chatterjee & Ors. vs. State of West Bengal reported in 2015(4) CHN (Cal) 533

in respect of alleged recovery of articles by the police. There is absolutely no evidence against the convict/appellant since the prosecution has miserably failed to prove that the victim was murdered by the appellant. No evidence is forthcoming, from the post mortem examination report that the victim was either murdered by strangulation or her skull was fractured to cause her death. The learned Trial Court did not consider the vital aspect about the cause of death of the victim and ignoring the settled principle of law has simply convicted the appellant under Section 302 Indian Penal Code without having any evidence of murder. Therefore the convict/appellant be acquitted of all the charges and the judgment of the Trial Judge be set aside solely on the ground that learned Trial Judge casually directed the convict/appellant to suffer death sentence for the offence under Section 302 of the Indian Penal Code.

Learned Public Prosecutor Manjit Singh appearing on behalf of the state has however supported the judgment and order of conviction of learned trial Judge on the following grounds. The Public Prosecutor in the lower Court was very fair as he produced Disha Laha for Trial. No question was put by the defence to the IO whether any step was taken to examine PW7 under Section 164Cr.P.C. PW7 in her cross-examination has stated that she knew the accused and saw him last with the victim girl. Mr. Singh has relied on the evidence of Disha Laha on the ground that the Trial Judge took all precautions before examination of prosecution witness no.7 and that defence had elicited in the cross examination of Disha Laha the identity of the convict/appellant and about the confessional statement made by the convict/appellant later on. It is submitted that Disha Laha specifically stated that convict/appellant took away the victim on the pretext of giving her chocolate towards Kandar. That goes to show that the victim was “last seen together” with the convict/appellant and within the shortest possible time, dead body of the victim was recovered solely on the information given by the convict/appellant. Therefore, it may safely be stated that the convict/appellant is the author of such crime since the burden of proof lies upon the convict/appellant to explain as to where he had been during such period. The convict/appellant could not even explain such circumstance and accordingly learned Trial Court was justified in holding the convict/appellant as guilty of the charges framed against the convict/appellant. Mr. Singh has further pointed out that defence has suggested that prosecution witness no.4 and 11 had actually seen the Binay Majhi near ‘Phanimonosha’ bush on the fateful date at about 8.00 p.m. and that is why Binay Majhi has been roped in this case. The defence has virtually admitted by giving such suggestion that in fact prosecution witness no.11 had seen Binay Majhi near ‘Phanimonosha’ bush on their way back to the village on the fateful date. Mr. Singh further pointed out that the investigating officer has taken all sorts of precautions at the time of investigation and there was absolutely no flaw in the manner of investigation. However Mr. Singh has fairly admitted that the so called extra judicial confession of the convict/appellant should not be accepted since admittedly force was exerted on Binay Majhi to extract such confession. Learned public prosecutor has also not relied on such Extra Judicial Confession said to have been given by Binay Majhi on the ground that such Extra Judicial Confession was not a voluntary confession of the convict/appellant. Mr. Singh further contended that prosecution witness no.1 Santosh being father of the victim and some of the other witnesses being close relation of the victim have categorically identified the wearing apparels of the victim and as such there was no illegality or any doubt about the identification of the wearing apparels of the victim since the father of the victim has identified the wearing apparels of his victim daughter, and there should be no confusion in accepting such wearing apparels as that of the victim. It is apparent from the FSL report that human blood was found from the Shirt of Binay Majhi. Admittedly the wearing apparels of Binay Majhi were seized in presence of witnesses by the investigating officer in the early hours of the very next day at about 4.00 a.m. and the said articles were sent for FSL examination too. Some of the articles could not be examined by the forensic expert on the ground that either there was not sufficient blood or blood was disintegrated. However, it appears from FSL report that human blood was found on the shirt of convict/appellant. It is further submitted that the investigating officer did not find any injury on the person of the convict at the time of his arrest and accordingly it was incumbent upon convict/appellant to explain as to how such blood came on to his shirt. That having not been done learned trial Judge was perfectly justified in awarding such sentence to the convict/appellant.

To support his contention in respect of the admissibility of the evidence of child witness Mr. Singh has referred to the following decisions reported in

# (2009) 12 SCC 731, (State of Karnatak vs. Shantappa Madivalappa Galapuji & Ors.)

# (2001) 9 SCC 129 (Suryanarayana vs. State of Karnataka)

and

# (2011) 4 SCC 786 (State of Madhya Pradesh vs. Ramesh & Ors.).

Mr. Singh has also relied on the following decisions in support of his contentions that defective investigation will not lead to acquittal of the accused, the duty of the accused in a case based on “last seen together theory” and the duty of the Court in appreciating the evidence in such cases namely viz.

# 1. Karnel Singh vs. State of M.P. (1995)5 SCC 518).

# 2. State of H.P. vs. Lekhraj Singh (2000) 1 SCC 247).

# 3. Leela Ram vs. State of Haryana (1999)9 SCC 525).

# 4. State of U.P vs. Anil Singh (1998) sup SCC 686).

# 5. State of U.P. vs. Satish (2005) 3 SCC 114).

# 6. Rohtash Kr. Vs. State of Haryana (2013) 14 SCC 434).

# 7. Madhu vs. State of Karnataka (2014) 12 SCC 419).

Mr. Singh however left it to the discretion of the Court with regard to the death punishment awarded by learned Trial Judge in the case under reference.

Let us now discuss the materials on record coupled with the evidences on record in order to come to a definite finding as to how far learned trial Judge was justified in holding the convict/appellant guilty of the charges framed against him and as to howfar the learned Trial Judge was justified in convicting and sentencing the convict/appellant of the charges under Sections 363,376(2)(f), 302, and 201 of the Indian Penal Code.

It is evident from the deposition of the prosecution witness no.1 that the first information report was lodged at the earliest possible opportunity i.e. at the time of recovery of the dead body. On scrutiny of the first information report we find that the Extra Judicial Confession of the convict/appellant as well as the information about taking away the victim by the appellant/convict as disclosed by Disha Laha, has been incorporated therein. That goes to show that the first information report was lodged at the earliest possible opportunity.

It is well settled principle of law that prompt lodging of first information report rules out the possibility of embellishment/concoction of any case against the accused. Prosecution witness no.1 Santosh is a resident of village Gobindapur within police station Labhpur and the convict/appellant is a resident of village Santra within P.S.-Nanoor. On the fateful date prosecution witness no.1 visited village Santra, his in laws house, to attend the celebration of ‘Nabanna’ festival. Nothing has been elicited in the cross examination of prosecution witness no.1 to establish that he nursed any grudge against the convict or that he had any specific animus against the convict. There is absolutely nothing in the cross examination of prosecution witness no.1 to show that he had any reason to implicate the accused/convict falsely. On the contrary we find that at the earliest opportunity the actual fact was divulged by the prosecution witness no.1 at the time of reporting the incident to the police. Had there been any intention of the prosecuting agency to implicate the convict/appellant falsely, the prosecution witness no.1 could have mentioned name of any adult member of the family in order to establish the last scene theory of the victim and the convict/appellant. The prosecution witness no.1 has candidly stated to police at the time of lodging the first information report that they came to know from Disha Laha about taking away of the victim by the convict/appellant. That goes to show that the prosecution was fair enough in mentioning the name of the actual witness who saw the convict/appellant to take away the victim on the pretext of giving some chocolate towards Kandar. It is true that the inquest report cannot be utilized as evidence but the inquest report simply tells us about the apparent injuries on the person of the victim. It is apparent from inquest report (exhibit 3) that the inquest was conducted from 0.55 hours to 2.15 a.m. by the investigating officer. The witnesses namely Netai Laha, Subodh Baran Laha, Buddadeb Mondal and Bhagyadhar Ghosh were present and they have proved their signatures vide exhibit 3/1, 3/2, 3/3 and 3/4. All the witnesses also have stated about such disclosure made by Disha Laha. Therefore, we do not find any plausible or apparent reason for false implication of the convict in the case under reference. On the contrary, the name of Disha Laha finds mention in the first information report which was lodged at the earliest possible opportunity by the prosecution witness no.1. It is next to impossible to manufacture such story within the shortest possible time to frame the accused in a false charge of rape and murder without any grudge or previous enmity. Therefore, prompt lodging of such first information report by the prosecution witness no.1 rules out the possibility of any falsity or embellishment against the convict/appellant. It is apparent from the evidence of prosecution witness no.1 and other witnesses that pursuant to the statement of Disha Laha they went towards Kandar at the outset but did not find the victim. That goes to show that the father of the victim and other witnesses, who were searching for the victim, did not even consider that Binay Majhi had committed the heinous crime on the victim. Thereafter in order to ascertain the actual fact and the whereabouts of the victim they went to the house of Binay Majhi. On being thrashed, Binay Majhi was compelled to admit his guilt and pointed out the place where the dead body was concealed by him. It is true that force was exerted upon Binay Majhi to extract such confessional statement. Accordingly we cannot take note of such extra judicial confession made by Binay Majhi before Prosecution witness no.1 and others as it is not admissible in evidence.

However, it is apparent from the factual scenario of the present case that it was not only impossible but it was absurd on the part of the searching team to find out the dead body of the victim which was concealed under water hyacinth at the pond named after ‘Miyader Pukur’, which is situated at a distance from the village. It is apparent from exhibit 10 that the wearing apparels of the victim were found near a ‘Phanimonosha’ bush. The occurrence took place in the mid part of winter season in a remote village of District Birbhum. It has been elicited from the investigating officer as well as from the witnesses that people generally did not go to such place after sun set, wherefrom the wearing apparels of the victim were seized by the police. Admittedly, the ‘Phanimonosha’ Bush is situated in an isolated field covered by paddy field and there were no houses in and around that place. Secondly, the dead body of the victim with marks of injury was recovered from a pond at about 11/11.30 p.m. in the dead hours of night with the help of search lights/torch lights. Had there been no specific information about the concealment of the dead body under the water hyacinth of a particular pond, it would not have been possible on the part of the searching team to recover the dead body from under the water hyacinth in the pond at the dead hours of night, which is situated at a distance from village Santra. That goes to show that only after the information regarding concealment of the dead body was given by the convict/appellant when he was questioned by PW1 in his house and pursuant to his statement the dead body as well as the wearing apparels of the victim were recovered by the searching team in presence of police. We have discarded the Extra Judicial Confession on the ground that force was exerted upon the convict for extracting such confession.

At the time of disclosure of information by the convict regarding concealment of the dead body of the victim and recovery of the wearing apparels of the victim and place of occurrence, no first information report was lodged and the accused/appellant was not arrested. Accordingly information given by the convict at that point of time is admissible in evidence under Section 8 of the Indian Evidence Act, being the conduct of the accused immediate after such occurrence. The argument of learned advocate for the appellant/convict on that score loses its force in view of the reasons assigned hereinabove.

The search party consisted of many village people but none of them, nor the prosecution witness no.1 or even the police could find out the dead body of the victim which was kept concealed under the water hyacinth in a pond far away from the village without having definite information to that effect from the perpetrator of such crime. The recovery of the dead body as well as wearing apparels of the victim at the behest of the convict/appellant, was further corroborated by the evidence of the investigating officer wherein the investigating officer has categorically stated that after arrest of the convict/appellant, he took the investigating officer to the place where the wearing apparels of the victim were found and where the dead body of the victim was kept concealed.

In that view of the case we do not find any illegality in accepting atleast that the dead body of the victim as well as the wearing apparels of the victim were recovered at the instance of the convict/appellant when he was in the custody of the villagers. That fact may safely be admitted in evidence though we are not accepting extra judicial confession made by the convict/appellant at that point of time.

The father of the victim has identified the wearing apparels of the victim. The relatives of the victim have also identified the wearing apparels of the victim. It is not possible on the part of the prosecution to project some wearing apparels near the ‘Phanimonosha’ bush in order to justify that wearing apparels of the victim were found from the ‘Phanimonosha’ Bush. This evidence has also not been demolished by defence counsel. The evidence of prosecution witness no.4 and 11 have further corroborated that the convict/appellant was found near the ‘Phanimonosha’ bush at the relevant point of time where from the wearing apparels of the victim were recovered/seized. Prosecution witness no.4 admittedly did not say as to how he identified the convict/appellant but prosecution witness no.11 has categorically stated that the convict/appellant was identified with the flash of torch light. It would be dangerous to reject such evidence of prosecution witness 4 and 11 only on the ground that prosecution witness no.4 did not state as to how he identified the convict/appellant at that spot. Nothing has been elicited in the cross examination of prosecution witness no.4 Buddhadeb Mondal to justify that he had any animosity feeling against the convict/appellant. Prosecution witness no.4 Buddhadeb Mondal is also not a close relation of the prosecution witness no.1. Prosecution witness no.4 Buddhadeb Mondal has had no reason to implicate the convict/appellant falsely in a charge of rape and murder. On the contrary, it has been elicited in the cross examination of prosecution witness no.4 that he heard about the bad reputation of the convict/appellant relating to his involvement with ladies prior to the date of occurrence. This fact has been elicited in the cross examination. Therefore, the defence cannot escape from the antecedent of the convict/appellant as has been elicited in the cross examination of prosecution witness no.4 Buddhadeb Mondal. It is true that the place of occurrence as has been shown in the sketch map (exhibit 10) is situated in an isolated area and it was not possible on the part of the witnesses to identify any person in dark night. However sufficient explanation has been given by prosecution witness no.11 that they had identified the convict/appellant with the flash of a torch light. Curiously enough, it has also been suggested to prosecution witness 11 that they have falsely implicated the convict/appellant only on the ground that they had seen him near ‘Phanimonosha’ bush on their way back to the village. That clearly goes to show that defence has virtually admitted that the convict/appellant was found near the ‘Phanimonosha’ bush when prosecution witness no.4 and 11 were crossing through the road. Therefore, it may safely be stated that the convict/appellant was also found near the place of occurrence at about 8/8.30 p.m. on 09.12.2011. It is apparent from the evidence of the photographer Bablu Saha that he reached near the pond at about 10.30 p.m. The investigating officer has also stated that he received the information of missing of the victim at about 10/10.30 p.m. The dead body of the victim was recovered at about 11/11.30 p.m. Disha Laha by that time divulged that the convict/appellant took away the victim on the plea of giving her some chocolate.

The question that arises is how did Disha Laha a girl of 4 years identify the convict/appellant. Secondly, out of all persons why the convict/appellant took away the victim. Thirdly, why the victim accompanied the convict/appellant on the plea of getting some chocolate from the convict/appellant.

It is apparent from the cross examination of prosecution witness no.7 Disha Laha that the convict/appellant used to visit the shop of her grand- mother for purchasing bidi. That’s why Disha Laha was acquainted with the convict/appellant. Secondly, it is also apparent from the evidence of prosecution witness no.1 and other witnesses that the convict/appellant used to move with the victim by taking her on lap as and when he used to visit the shop of the grand- father of Disha Laha for purchasing bidi. This evidence of the prosecution has neither been challenged in the cross examination nor has it been destroyed by sufficient cross examination. It is therefore apparent from such evidence on record that Disha Laha and the victim girl both were acquainted with the convict/appellant. In this way the confidence of the victim girl was won over by the convict/appellant. Without realizing the consequences, the innocent victim thus accompanied the convict/appellant in the hope of getting some chocolate from the convict/appellant. In view thereof it was reasonable for the victim to accompany Binay Majhi on the basis of prior acquaintance and the victim was allured on the plea of chocolate lozenge and in this way the victim was taken by the convict/appellant towards Kandar.

Learned trial Judge had put some questions to prosecution witness no.7 Disha Laha to test her intelligence and power of understanding the questions like that of a rational and prudent man. Disha Laha answered correctly about occupation of her father but erroneously said that Tiger eats grass. She knows that Tiger lives in jungle but was not acquainted with the food habit of Tiger. That is why she has stated that the food of Tiger is grass. However, in respect of other questions she has answered correctly. We are satisfied that the witness had sufficient capacity to understand the impact of question and to give appropriate reply to such questions being aware of the contents and impact of such questions. The question of tutoring the child witness cannot be altogether ruled out. Admittedly, this witness was produced before the learned Magistrate for recording her statement under Section 164 Code of Criminal Procedure but the witness could not state anything at that point of time. Witness was aged about 4(four) years only at that point of time. Sometimes it is not possible on the part of adult witness to answer correctly to the question put to him on dock far to speak of a child witness aged about 4(four) years only due to the charged atmosphere inside Court room. The prosecution tried its level best to get the statement of prosecution witness no.7 recorded by learned Magistrate in order to avoid the criticism that the witness was tutored by the prosecution. Unfortunately that attempt failed due to the tender age of the witness. On the contrary, if we are to believe that the name of Disha Laha was incorporated in the first information report with a view to implicate the convict falsely then at the prosecution could have incorporated the name of the parents of Disha Laha in order to support its case but no such attempt was made by the prosecution and it goes to show that it was Disha Laha (PW7) who pointed out that the convict/appellant took away the victim on that fateful day on the plea of giving her some chocolate. Moreover there is absolutely nothing in the cross examination of prosecution witness no.7 to show that she was tutored by prosecution to implicate the convict/appellant falsely. Unfortunately, the defence has elicited through the cross examination of PW7 that she knew the convict/appellant from before as the convict/appellant used to visit the shop of her grand-mother for purchasing bidi. This fact has also been corroborated by the prosecution witness nos.1 and 3. It is equally unbelievable that the name of Disha Laha was incorporated in the first information report with a view to prosecute the accused falsely. Almost all the witnesses have corroborated that Disha Laha gave the information about taking away of the victim by the accused. It is true that Disha Laha could not enlighten us about the time when the victim was taken by the convict. It is evident from the evidence on record that the missing of the victim was noticed by the villagers at about 7/7.30 p.m. and the dead body of the victim was recovered at about 10/10.30 p.m. It has been observed by Hon’ble Apex Court (in the decisions reported in

# 2003 (3) SCC 21 (Bhagwan Singh & Ors. Vs. State of Madhya Pradesh)

relying on

# Panchhi & Ors. Vs. state of Uttar Pradesh 1999 (7) SCC 177

to the following effect:-.

“The law recognizes the child as a competent witness but a child particularly at such a tender age of 6(six) years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony.

# Panchhi & ors vs. State of U.P. (1998) 7 SCC 177.

In the case before us, the trial Judge has recorded the demeanor of the child. The child was vacillating in the course of his deposition. From a child of six years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his being tutored the Court should be careful in relying on his evidence. We have already noted above that Agyaram, maternal uncle of the child, who first met him after the incident and took him along with his younger brothers to his father’s village, has not been produced by the prosecution as witness in the Court. It was most likely that if the child had seen the incident and identified the three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. The conduct of his father Radheshyam who was produced as a witness by the prosecution is also unnatural that before recording the statement of the child by the Police, he made no enquiries from the child.”

Learned trial Judge refused to accept the evidence of the child witness on the ground that the child was vacillating in the course of his deposition. However the High Court reversed the said judgment and convicted the accused relying on such deposition of the child witness. Hon’ble Apex Court however acquitted the accused holding inter-alia that High Court was not at all justified in accepting the deposition of the child witness. It is apparent from the said decision that the child witness was vacillating in the course of his deposition. The child was taken by his maternal uncle immediately after the occurrence. Considering the facts and circumstances of that particular case Apex Court refused to accept the evidence of the child witness. Law enunciated by the Apex Court in the decisions referred to herein above is that the child is a competent witness but since there is a chance of tutoring of such child, the Court should accept the evidence of child witness after carefully evaluating the evidentiary value of such witness and relying on other corroborative evidence. In the case under reference we find that pursuant to the statement of prosecution witness no.7, the search team had been to the house of the convict/appellant. The convict/appellant gave definite information about the recovery of the dead body of the victim. The dead body of the victim with injuries was recovered immediately thereafter. The wearing apparels of the victim were recovered thereafter – pursuant to such statements made by the convict/appellant. There is specific evidence as to how the child witness came to know about the identity of the convict/appellant. The first information report was lodged promptly wherein the name of the prosecution witness no.7 was found. The wearing apparels of the convict/appellant were also seized by the police on that very day and human blood was found on the Shirt of the convict/appellant. It is also apparent from the evidence on record that at the outset they did not find the body of the victim but only on the basis of the information given by the convict/appellant, the dead body of the victim was recovered from under the water hyacinth in the pond, that too in the dead hours of night with the help of torch light/search light. Therefore, the decision referred to herein above is not applicable in the context of the given facts and circumstances of this case.

The Apex Court has categorically observed that child witnesses are amenable to tutoring and often they live in a world of make believe though it is established principle that child witnesses are dangerous witness as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of evidence the Court comes to the conclusion that there is an impress of truth in it, there is no bar in accepting the evidence of a child witness.

It is not desirable that the evidence of child witness should be altogether discarded on the ground that it is the evidence of a child witness. On the contrary, if the evidence of child witness finds support from subsequent corroboration of the fact disclosed by the child witness as well as if the evidence of the child witness inspires confidence of the Court then on a studied evaluation of such evidence of child witness, the same may safely be accepted. Reference may be had of from the

# i). 2011(4) SCC 786 (State of Madhya Pradesh vs. Ramesh and another)

# ii). (2009)12 SCC 731 (State of Karnataka vs Shantappa Madivalappa Galapuji and others)

decisions mentioned hereinbefore.

The evidence of the child witness cannot be rejected Per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The fact that the witness being a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. In

# (Suryanarayana vs. State of Karnataka) (2001) 9 SCC 129

the Apex Court solely relied on the evidence of a girl, being the sole witness aged about 4(four) years at the time of incident and 6(six) years at the time of her deposition before the Trial Court and upheld the conviction of the appellant.

It is apparent from the discussions made in the foregoing paragraphs that the evidence of Disha Laha could not be shaken nor destroyed on the contrary it has been substantially corroborated by the evidence of other witness. In that view of the case and relying on the aforesaid decisions we find no reason to discard the evidence of prosecution witness no.7, Disha Laha. Therefore, it may safely be stated that the prosecution has been able to establish the last scene theory of the victim along with the convict/appellant on the strength of the evidence of Disha Laha.

Time gap between the missing of the victim girl and the recovery of the dead body of the victim is very short. Within 2-3 hours from the time of missing, the dead body of the victim was recovered. Admittedly the convict/appellant took away the victim towards the Kandar. All the circumstances regarding taking away of the victim, identification of the convict/appellant near ‘Phanimonosha’ bush by prosecution witness no.4 and 11, recovery of the dead body, recovery of the wearing apparels of the victim etc. were specifically put to the convict/appellant at the time of his examination under Section 313 Cr. P.C. The convict/appellant has simply stated that he had no knowledge or that the said circumstances were not true.

The Apex Court in the decisions reported in

# State of U.P. vs. Satish (2005) 3 SCC 114

has observed in para 22 as follows:-

“The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

In

# Madhu Alias Madhuranatha & Anr. vs State of Karnataka (2014)12 SCC 419

the Apex Court has observed relying on

# Nika Ram vs State of H.P. 1972 (2) SCC 80

and

# 1992 (3) SCC 106 (Ganeshlal vs. State of Maharashtra)

that it is incumbent upon the accused, who was last seen with the deceased victim just before the incident, to explain the circumstances under which the death of the victim occurred. It has been further observed by the Apex Court that it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C to furnish some explanation with respect to the incriminating circumstances associated with him and the Court must take note of such explanation even in a case of such circumstantial evidence to decide whether or not the chain of circumstances is complete

# Musheer Khan & Anr. vs state of Madhya Pradesh reported in 2010 (2) SCC 748

and

# Sunil Clifford Daniel vs. State of Punjab (2012)11 SCC 205

para 24, 25.

The said proposition of law has also been reiterated by the Apex Court in

# Rohtash Kumar vs state of Haryana reported in 2013 (14) SCC 434.

It was therefore necessary on the part of the convict/appellant to explain the circumstances as to what actually happened when he took away the victim on the plea of giving her chocolate. The convict/appellant did not explain any circumstance during his examination under Section 313 Cr.P.C. but he has simply tried to avoid the said circumstances by saying that he had no knowledge about such circumstance or that such circumstances were not true. It is sometimes difficult on the part of the prosecution to prove the actual incident – since the incident remained within the knowledge of the accused. In order to avoid that situation Section 106 of the Indian Evidence Act may safely be invoked and accordingly it becomes the bounden duty of the accused to explain the circumstance, which were within the special knowledge of the accused.

In the case under reference we find that the convict/appellant did not offer any explanation as to what happened when he took away the victim towards Kandar. The time gap is very short and accordingly the convict/appellant is definitely duty bound to explain the circumstances as to how and under what circumstances the victim suffered such sexual assault on her person and how the victim died. In absence of any such explanation, it would be justifiable to accept that the convict/appellant is the author of such crime in view of the proposition of law as enunciated by the Apex Court in the decisions reported herein above. The Apex Court in the decision reported in

# State of H.P. vs Lekh Raj and Anr. reported in 2000(1) SCC 247

has observed that the traditional dogmatic, hyper technical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. In

# Leela Ram vs. State of Haryana & Anr. in (1999)9 SCC 525

the Apex Court has further observed that embellishment or minor discrepancy in the statement of witness is not sufficient to discard the entire evidence of the witness. In

# State of Uttar Pradesh vs. Anil Singh reported in 1988 SCC Suppl Vol 1 686

corresponding to AIR 1988 SC 1998, the Apex Court has enunciated the self-same principle of law in matters of appreciation of evidence. The specific argument of learned Advocate for the convict/appellant is that the investigation has been conducted in a defective manner and on that score alone, entire case of prosecution ought to be rejected. The recovery of seized articles is not in accordance with law and accordingly the seizure of articles ought to have been ignored by learned trial Court. In support of his contention learned Advocate for the convict/appellant has relied on the following decisions reported in

# (2015)1 C.Cr.LR SC 802 State of Gujarat vs. Kishanbhai etc. ,

# Nanda Chatterjee and others vs State of West Bengal reported in 2015(4) CHN (Cal) 533

and

# Prabhu Dayal vs. state of Delhi (1986)1 crimes 3.

The Apex Court set aside the order of conviction on the ground that the prosecution had failed to examine any witness who had last seen the victim with the convict,no sketch map indicating the distance of places between victim’s house and place of occurrence, was produced before the Court, no DNA profile of blood found on the shirt of the accused was done and the knife was not produced and the accused was not examined by doctor immediate after his arrest. The said decision is not applicable in the context of the given facts and circumstances of this case since the prosecution has been able to produce a reliable witness who had seen the convict/appellant to take away the victim on the pretext of giving some chocolate. Investigating officer has clearly depicted the entire scenario in his sketch map in order to ascertain the actual state of affairs. Blood was found on the shirt of the convict/appellant. The shirt was sent for FSL examination and human blood was found on the shirt of the convict/appellant. Admittedly, the accused did not suffer any injury at the time of his arrest and immediate after his arrest, he was examined by doctor. The accused has failed to explain the circumstance either at the time of his examination under Section 313 Cr.P.C. or by adducing sufficient evidence as to his whereabout at the relevant point of time. Therefore, the decision referred to herein above by learned Advocate for the convict/appellant is not at all applicable to this case. In

# Prabhu Dayal vs. State of Delhi (1986)1 crimes 3

the Apex Court has refused to rely on the dying declaration without corroboration though the dying declaration was made within 2-3 hours of the occurrence on the ground that there was no corroboration with regard to such dying declaration and there was history of mental sickness of the deceased immediately before the occurrence. We do not find any applicability of the said decision in the context of the given facts and circumstances of this case.

A co-ordinate bench of this Court in

# Nanda Chatterjee and others vs State of West Bengalreported in 2015(4) CHN (Cal) 533

set aside the order of conviction on the ground that the learned Trial Judge could not appreciate the evidence of child witness properly and learned trial Judge solely relied on such evidence of child witness without having any corroboration thereof.

The facts in the said decision

# Nanda Chatterjee vs. State of West Bengal 2015(4) CHN (Cal) 533

is not similar to the facts and circumstances as unfolded in the present case and accordingly we are unable to apply the said decision to the present case. In Prabhu Dayal vs State of Delhi (Supra) the Apex Court has further observed that the prosecution must be fair. There is no doubt with regard to the fairness of the prosecution in the instant case. The statement of Disha Laha was incorporated in the first information report. Had there been any ill intention on the part of the prosecution to falsely rope in the convict/appellant, in that event the prosecution could have incorporated the name of any adult witnesses in the first information report to establish that the victim was last seen with the convict/appellant. That having not been done, it is crystal clear that the prosecution was not unfair in upholding the cause of justice. In

# Karnel Singh vs. State of M.P. in (1995)5 SCC 518

the Apex Court has specifically held that it would not be right in acquitting an accused person solely on account of defective investigation and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. The evidence of prosecution witness no.16 Dr. Soumitra Sinha has depicted that the victim sustained abrasions of scapula, lumber region, left elbow on both sides of leg, cut injury over right angle of mouth, cut injury over right angle of eye. Dr. Sinha found that the vagina of the victim was lacerated with complete perennial tear and blood was coming out from vagina at the time of post mortem examination. Hyoid bone was found intact. As per the opinion, of Dr. Sinha the cause of death was Haemorrhagenic with Neurogenic shock due to vaginal laceration and complete perineal tear. The victim was aged about 8(eight) years at the time of such incident. The hapless victim could not bear the sexual assault on her person by the convict/appellant who for fulfillment of his lust tore apart the pericardium muscles of the victim resulting in death of the victim due to Haemorrhagenic and neurogenic shock due to vaginal laceration and complete perineal tear. The unfortunate victim could not bear the pain and shock on account of such sexual assault on her person and as such she died of constant bleeding. Such bleeding was found by PW16 (Doctor) even at the time of post mortem examination. That the victim was subjected to sexual assault is apparent from the post mortem examination report. However we do not find any evidence that the victim died of Asphyxia or that the victim was throttled to death. We also do not find any other injury on the person of the victim which may be described as the cause of death of the victim. Therefore it is crystal clear from such post mortem examination report that the victim was not murdered. Admittedly the evidence of murder does not find support from such post mortem examination report of the victim.

The intention of convict/appellant cannot be translated in evidence by adducing oral evidence to that effect. The intention of the convict/appellant has to be gathered from the attending circumstances. The report of the post mortem examination of the victim depicts that in order to satisfy his unnatural lust the convict/appellant tore apart the pericardium muscle of the victim and the victim ultimately died of constant bleeding. It would not be out of place to mention here that all the witnesses have categorically stated that Binay Majhi was found in a drunken condition when they had been to the house of Binay Majhi. Prosecution witness no.12 has also stated that Binay Majhi had visited his shop for purchasing bidi in a drunken condition immediate on the fated day at about 9.00 p.m. The incident had taken place earlier. Unfortunately, for the defence and fortunately for the prosecution, the said fact has also been elicited by the defence in the cross examination of prosecution witness no.7. In that view of this case, it may safely be stated that the intention of the convict/appellant was to satisfy his unnatural lust by committing rape on the victim. However, the victim died as a result of such sexual assault on her person and the offence would squarely fall within the purview of Section 304 Part II of Indian Penal Code instead ofSection 302 IPC. The convict/appellant had definite knowledge that the victim would have died for such sexual assault on her person since the victim was aged about only 8(eight) years at the relevant point of time. Secondly it is apparent from the cross examination of prosecution witness that no water or fluid in the lungs and stomach of the victim was found at the time of post mortem examination. That goes to show that victim died instantly at the time of such sexual assault on her person otherwise water and fluid would have been found in the lungs or in stomach of the victim. The chain of circumstances accordingly may be summarized as follows:

1. The victim was found missing at about 7/7.30 p.m. on 09.12.2011. Search was conducted within the village and even announcement through microphone was made to trace out the victim.

2. Disha Laha informed that the victim was taken away by the convict/appellant towards Kandar on the plea of giving some chocolate.

3. Despite vigorous search the victim was not found. Accordingly the search team went to the house of Binay Majhi.

4. Pursuant to the information given by Binay Majhi with regard to the concealment of the dead body of the victim and the place of occurrence, the search party proceeded towards the place of occurrence.

5. Police was informed instantly. Wearing apparels of the victim and blood were seized and found near ‘Phanimonosha’ Bush.

6. Prosecution witness no.4 and 11 saw Binay Majhi near the Phanimonosha Bush while returning to their village at the relevant point of time at about 8.00 p.m. on the fateful day. At 9.00 p.m. the accused/appellant went to the shop of PW12 to buy bidi.

7. The dead body of the victim was recovered from under the water hyacinth in Miyader Pukur in presence of witnesses by the police pursuant to the information given by the convict/appellant. The search party had visited this place earlier but had failed to find the body. It was only on specific information given by the appellant that the body was recovered from beneath the water hyacinth.

8. Prompt lodging of first information report containing the material details about the occurrence further corroborates the case of the prosecution.

9. Injuries were found on the dead body by the investigating officer at the time of holding inquest and even active bleeding was found on the dead body of the victim at the time of holding post mortem examination. The accused/appellant was arrested on the following day at 4.00 a.m.

10. The convict/appellant could not explain the circumstances proved by the prosecution. The convict/appellant also did not offer any explanation with regard to his whereabouts at the relevant point of time and in view of short gap of time, and relying on the decisions reported herein above as well as with the help of Section 106 of Indian Evidence Act, it may safely be stated that the convict/appellant is the author of such crime.

11. The investigating officer seized the wearing apparels of the victims as well as the wearing apparels of the convict/appellant. Immediate after the arrest of the convict, the investigating officer got the place of occurrence as well as the place of recovery of the dead body, confirmed by the convict/appellant.

12. Human blood was found on the shirt of the convict. The convict/appellant did not offer any explanation as to how human blood came on his shirt.

13. The investigating officer sent all the seized articles for forensic examination. Report of forensic examination reveals that due to disintegration of blood such examination could not be held.

The convict/appellant could not explain the circumstances proved by the prosecution. The convict/appellant also did not offer any explanation with regard to his whereabouts at the relevant point of time and in view of short gap of time, and relying on the decisions reported herein above as well as with the help of Section 106 of Indian Evidence Act, it may safely be stated that the convict/appellant is the author of such crime.

All these circumstances irresistibly lead to the conclusion that convict/appellant is the author of such crime and he inflicted such injuries on the person of the hapless and defenceless victim aged about 8(eight) years in order to satisfy his unnatural lust for sex.

Learned Public Prosecutor has tried to impress upon the Court that the heart and lungs of the victim was congested as there was an attempt to throttle the victim. Such fact was not put to the doctor (PW no.16) and the case of throttling cannot be accepted.

It is therefore crystal clear that the convict/appellant took away the victim on the plea of giving some chocolate and thereby the Trial Court was justified in convicting and sentencing the accused /appellant for the offence under Section 363 of the Indian Penal Code, and is upheld.

The victim was subjected to sexual assault by the convict/appellant and the order of conviction and sentence passed for the offence under Section 376(2)(f) of the Indian Penal Code is also justified and upheld.

Learned trial Judge has convicted the appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to death for such offence. We have specifically stated in the foregoing paragraphs that we do not find any specific evidence of murder in the post mortem examination report. We are duty bound to answer the death reference under Section 366 Cr.P.C. since the matter has been sent to this Court for confirmation of death sentence. Even if the convict is found guilty for the offence under Section 302 of Indian Penal Code, in that event also learned trial Judge did not consider the mitigating circumstances favouring the convict/appellant in the context of the given facts and circumstances of this case. The Apex Court in a decision reported in

# (2013)5 SCC 546 (Shankar Kisanrao Khade vs. State of Maharashtra)

has dealt with the mitigating circumstances as follows:-

1. The young age of the accused, aged 20 years

# Amit vs. State of Maharashtra) (2003)8 SCC 93

2. The possibility of reforming and rehabilitating the accused. The accused, incidentally, were young when they committed the crime

# Santosh Kumar Singh vs. State of U.P.) (2010)9 SCC 747.

3. The accused had no prior criminal record

# Nirmal Singh vs. State of Maharashtra) (2003)8 SCC 93.

4. The accused was not likely to be a menace or threat or danger to society or community

# Raju vs. State of Haryana) (2001) 9 SCC 50.

5. A few other reasons need to be mentioned such as the accused having been acquitted by one of the courts

# State of T.N. vs. Suresh) (1998)2 SCC 372.

6. The crime was not premeditated

# Kumudi Lal vs. State of U.P.) (1999)4 SCC 108.

7. The case was one of circumstantial evidence

# State of Maharashtra vs. Mansingh) (2005)3 SCC 131.

It appears from the materials on record that the convict was aged about 21 years at the time of his conviction. No document has been produced by the prosecution in respect of any previous criminal record of the convict. The convict cannot be termed to be a menace or threat or danger to society or the community. The possibility of reforming and rehabilitating the convict cannot be ruled out. The entire case rests upon circumstantial evidence. These factors in the light of the decisions referred to herein above were not considered by the learned Trial Judge at the time of awarding death sentence to the convict. Accordingly we answer the reference to the confirmation of death sentence in the negative. However it appears from the report of post mortem examination of the victim that the victim died of Haemorrhagenic with Neurogenic shock. That goes to show that the victim being a minor girl aged about 8(eight) years only was subjected to such violent sexual assault which she could not bear the pain and shock of such violent sexual assault, the victim died.

The Apex Court in

# AIR 2002 SC 2148(State of Orissa vs. Dibakar Naik & Ors.)

has observed in paragraph 24 as follows:-

“Whoever cause death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely, by such act, to cause death, is responsible for the commission of the offence of culpable homicide. Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death and is not covered by any of the exceptions of Section 300 of the Indian Penal Code. As already noticed, in this case there is no evidence to show that the aforesaid accused persons proved to have been involved in the occurrence, had intended to cause the offence of murder within the meaning of Section 300 as punishable under Section 302 of the Indian Penal Code. However, on proof of the commission of offence of gang-rape found to have been committed in a violent manner, they are assumed to be having the knowledge that by their action it was likely that the deceased would have died. The aforesaid accused are, therefore, guilty of the offence, punishable under part-II of Section 304 of the Indian Penal Code. While acquitting the other respondents we hold Birabar Mania(A-5). Babaji Mania(A-6), Bhira Behera@ Baga Tanti(A-7), and Madha Tanti @ Madhabananda Parmanik(A-11) guilty for the commission of offences punishable under Section 304 (II) read with Section 34 of the Indian Penal Code besides the commission of offence punishable under Section 376 read with Section 34 of the Indian Penal Code. The conviction and sentence awarded by the trial Court to Birabar Mania(A-5), Babaji Mania (A-6), Bhira Behara @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik(A-11) under Section 376 of the Indian Penal Code is upheld. On proof of the offence punishable under Section 304(II) read with Section 34 IPC, the aforesaid accused persons are sentenced to undergo Rigorous Imprisonment for 10 years. Both the sentences shall run concurrently”.

It is therefore apparent from the facts and circumstances of this case that the convict had no intention to commit murder of the victim but the victim could not bear the violent onslaught of the convict at the time of commission of such offence under Section 376 (2)(f) of the Indian Penal Code. The convict had also definite knowledge that by such action the victim could have died. Relying on the aforesaid decision of the Apex Court we do hold that such offence of the convict would squarely fall within the purview of Section 304 (II) of the Indian Penal Code and accordingly we reduce the sentence awarded by the learned Trial Judge under Section 302 of Indian Penal Code to one under Section 304 (II) of Indian Penal Code and sentence him to suffer Rigorous Imprisonment for 10(ten) years and to pay a fine of Rs.10,000/-(Ten thousand) i.d. Rigorous Imprisonment for 2(two) years.

We have also doubt in our mind as to the applicability of Section 201 of the Indian Penal Code in the context of the given facts and circumstances of this case. Admittedly, the convict/appellant after commission of such offence concealed the dead body under water hyacinth of a pond in order to cause dis-appearance of the evidence of offence but ultimately the dead body was recovered pursuant to the information given by the convict/appellant. The convict/appellant also did not conceal the whereabouts of the dead body though initially he had concealed the dead body. Therefore we do not find any applicability of Section 201 of the Indian Penal Code and accordingly the conviction of the appellant under Section 201 of the Indian Penal Code is set aside.

Learned trial Judge however has considered the aggravating circumstances in awarding the death punishment to the convict for the offence under Section 302 of Indian Penal Code. It is crystal clear that the defenseless victim aged about 8(eight) years was subjected to such a violent sexual assault that the victim died having suffered perineal tear. The doctor, holding post mortem examination of the victim, also found active bleeding from the vagina of the victim at the time of holding such post mortem examination. It is thus apparent that the convict was engaged in the inhuman act of violence while satisfying his unnatural lust for sex and for which the convict should be adequately punished. In the decision reported in

# 2013 (3) SCC 52 (Shankar Kisanrao Khade vs. State of Maharashtra)

(supra) it has been held by the Apex Court that the sentence of imprisonment for life means imprisonment for the rest of the normal life of the convict (relied on

# 2013 (2) SCC 452 (Sangeet and Anr. Vs. State of Haryana).

We are not oblivious of the fact that the convict should be appropriately punished for commission of such offence. On that score also we want to affirm the judgment of learned trial Judge by directing that the convict shall suffer the sentences for the offences under Section 363, 376(2)(f) of Indian Penal Code in addition to the sentence imposed on the convict under Section 304 (II) of Indian Penal Code, and the aforesaid sentences shall run concurrently.

In the premises set forth above, we answer the death reference in the negative and modify the sentence awarded by learned trial Judge, as stated herein above and set aside the order of conviction and sentence against the convict in respect of the offence under Section 302 (by reducing the same under Section 304 (II) of the Indian Penal Code) and Section 201 of Indian Penal Code. The death reference has accordingly been answered and the appeal is partly allowed in terms of the directions and decision given in the foregoing paragraphs.

Let a copy of this judgment be forwarded to the Court below for issuance of fresh jail warrant in terms of the directions given in the foregoing paragraphs.

Urgent certified Photostat copy of the judgment be given to the parties, if applied for, upon compliance of all the formalities, as per usual terms and conditions.

(Debi Prosad Dey, J.) I agree (Nadira Patherya, J.)

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