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

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: