JUDGMENT : R.C. Patnaik. J. 1. The reference u/s 366 of the Code of Criminal Procedure made by the Sessions Judge, Mayurbhanj for confirmation and the appeal arise from conviction of the accused Appellant u/s 376 and Section 302 of the Indian Penal Code and the sentence of 7 years imprisonment imposed for conviction under the former Section and the sentence of death for commission of offence under-the latter. 2. The facts are short and in brief may be stated thus: Nandia Behera (P.W. 1) a Harijan-drummer and wage-earner-was living a happy life in his own way with his wife Sindhu (P.W. 6) and three children two daughters and a son. The eldest Sukumari was aged 5 year and the youngest Pravati, a daughter barely ten days old. On the 10th day celebration of the birth of youngest daughter, appeared on the scene Jahar Das, the accused, befriended Nandia and Sindhu, established relationship with Sindhu as his god-daughter, christened their youngest daughter as Pravati, had his food and promising to come soon with dress for the newly born left the place. Six days thereafter Jahar came early in the morning around 6 a.m. with new dress for the youngest daughter. Learning 'that Nandia had two other children also, he said that he would take the measurement of the son and take the eldest daughter Sukumari with him to obtain dresses from a shop located at Bombay chhak, three kilometers away from Badachhatar, the village of Nandia. He too had his food and left after taking measurement of the son and Sukumari with him. Half an hour thereafter, Sindhu pleaded with her husband that he should follow Jahar to Bombay chhak as Sukumari might be crying. Nandia proceeded towards Bombay chhak accompanied by one Sambhu. He met one Babuli on the way who denied to have seen Nandia's daughter or Jahar. Then he came back to his village and sat in the shop of one Nityananda (P.W. 2) who informed him that while he was returning from the pond after taking bath, he saw Jahar proceeding towards the east through the paddy field with a minor girl aged about 5 years. Nandia and Sambhu then proceed to Tulasibani, the village of Jahar lying to the west of their village. They could not find him there. Being advised by one Tusu Basa, they lodged a missing report at Jharpokharia police station. Nandia and Sambhu then proceed to Tulasibani, the village of Jahar lying to the west of their village. They could not find him there. Being advised by one Tusu Basa, they lodged a missing report at Jharpokharia police station. Nandia again went towards Tulasibani where he was informed that Jahar had gone to his house. He went there and found him inside the village. To his query, Jahar told him that Sukumari had on her own gone back home. P.W. 1 then caught hold of him. Jahar, however, could writhe himself free of P.W. l's clutches and started running but was apprehended and brought to Badchhatara Police arrived in the village some time later. In course of questioning, Jahar disclosed that the dead-body of Sakumari was lying in the paddy field. A search was made and the dead body was discovered in the paddy field of Janardan Mahanta, locally known as Tiniastia Chaka. The Officer-in-charge drew up F.I.R. on his own information. Inquest was made early in the morning, next 'day. Wearing apparels and nail clippings of Jahar and wearing apparels of Sukumari were seized and sent for chemical and serological examinations and the dead-body was sent for post-mortem examination. Jahal was also medically examined. On completion of investigation, he was placed on trial for commission of offences under Sections 376 and 302 of the Indian Penal Code. 3. Prosecution examined eleven witnesses to bring home the charges. Of them, P.W.'s land 6 are the parents of deceased Sukumari, P.W.2 is the shop-keeper who saw Jahar proceeding through the paddy field towards his village with a girl aged 5 years, P.W. 7 is the doctor who conducted the post-mortem examination, P.W. 8 examined Jahar and P.W. 9 is another doctor who testified that no complaint had been made that Jahar suffered from piles. P.W. 11 is the Investigating Officer. 4. Jahar while admitting the prosecution story that he visited the house of Nandia 011 the occasion of the 10th day celebration of his daughter and christened the girl as Pravati etc., denied to have visited on the second occasion, i.e., on the date of occurrence. He, however, admitted that his dhoti and, underwear were stained with blood coming out of his gums. He denied all other allegations. 5. He, however, admitted that his dhoti and, underwear were stained with blood coming out of his gums. He denied all other allegations. 5. On consideration of the evidence, the learned Sessions Judge held the charges to have been established in view of the following features: (a) Jahar was last seen with the deceased together; (b) his conduct in trying to run away when apprehended; (c) false explanation; (d) recovery of the dead-body at the instance of Jahar and (e) presence of injury on the genital of Jahar and stains of blood on his wearing apparels and nail clippings. 6. There is no eye witness to the Occurrence. The case rests on circumstantial evidence. It is, therefore, appropriate to recapitulate the law relating to; circumstantial evidence. In Earabhadrappa v. State of Karnataka AIR 1983 S.C. 446 , it was held: In cases in which the evidence is purely of a circumstantial nature the facts and circumstances from which the conclusion of guilt of sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only, be consistent with the guilt of the accused that they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent wit his innocence.... Approving the said view, their Lordships of the Supreme Court observed in Laxmi Raj Shetty and Another Vs. State of Tamil Nadu, : ... In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 7. The learned Sessions Judge has accepted the prosecution witnesses as reliable and' their evidence, in substance, as trustworthy. P.Ws. 1 and 6, the parents of Sukumari are natural and competent witnesses. They have no axe to grind. No suggestion has been given to them as to why they should falsely implicate Jahar. No discrepancy or inconsistency word the name the defence has been able to extract to discredit them. They are unsophisticated rustics. We have been taken through their evidence. Their evidence grounds so natural and real that it is difficult, nay, impossible to disbelieve them. No suggestion has been given to them as to why they should falsely implicate Jahar. No discrepancy or inconsistency word the name the defence has been able to extract to discredit them. They are unsophisticated rustics. We have been taken through their evidence. Their evidence grounds so natural and real that it is difficult, nay, impossible to disbelieve them. Their evidence discloses that Jahar had come to their house on the 10th day celebration of the birth of their daughter, he christened the daughter as Pravati, established the relationship of god-father and god daughter with Sindhu, had his food and left promising to return some days later with wearing apparels for the youngest daughter. Jahar accepts the story as given out by P.Ws. 1 and 6 relating to him, as aforesaid. It is, therefore, highly probable that he would have turned up on the subsequent occasion with dress for the youngest daughter which according to P.Ws. 1 and 6, he did on the date of occurrence. The rest of the prosecution story, namely, he was taken aback when he learnt that Nandia had two other children and that he took the measurement of the son and took Sukumari along with him to Bombay Chhak to purchase dress for her, appears to be probable and true. It is not understood nor was any suggestion made to P.Ws. 1 and 6 as to why' they should falsely implicate Jahar as the person who took their daughter towards Bombay Chhak. If it was somebody else other than Jahar, it is improbable that they would withhold such person. No suggestion has been given as to why they should not name the real person but rope in Jahar. Therefore, in the sequence, the prosecution story that Jahar left the house of Nandia with Sukumari is believable and true. It is the prosecution case that half an pour later Sindhu implored her husband to proceed towards Bombay Chhak lest Sukumari might be crying. Nandia then went out with one Sambhu (who has not been examined) and returned to his village without finding either Jahar or Sukumari sat in the shop of P.W.2 who informed him that he had seen Jahar proceeding through the paddy field with a minor girl aged 5 years. He then proceeded to village Tulasibani but Jahar could not be traced. He then proceeded to village Tulasibani but Jahar could not be traced. So on the advice of one Tusu Basa, he lodged a missing report in the police station which has been proved as Ext. 9 i.e., tbe earliest recorded version regarding the incident. Therein, he has, narrated how Jahar befriended them, christened their youngest daughter and arrived that day with new dress for the youngest, child and took his daughter towards Bombay Chhak to purchase new dress for her. By then he, has no apprehension that his daughter was dead. The evidence of P.W.6 corroborated by his earlier statement as per Ext. 9 together with the evidence of P.W. 6 establishes the fact that Jahar had left with Sukumari. 8. After lodging the missing report at the police station Nandia proceeded to Tulsibani again, in search of Jahar. He was informed that Jahar was resting for sometime in a bamboo clump and ten had gone to his. Nandia proceeded there. When asked about the whereabouts of Sukumari, Jahar told him that Sukumari, who is also known as Disco, returned home on her own. When he was caught by Nandia he could writhe himself free and ran towards the backyard of the house of one Kedar Mahanta. P.W. 1 followed him. Ultimately Jahar was apprehended and brought to village Badachatara. To the query of P.W. 6, Jahar told her that Sukumari was sent back by him in a red truck. Jahar then disclosed on questioning that the body of Sukumari was lying in the paddy field and on his information the dead-body of Sukumari was discovered and Jahar was sent to the police station. 9. Sukumari was aged 5 years. She was taken from her house by Jahar for purchase of dress from Bombay Chhak three kilometres away. It is, therefore, unnatural that should be sent without escort. Then his answer to P.W. 6, the mother to the effect that she was sent by him in a red truck. The versions are prevaricating: and are false. Much criticism has been levelled at the discrepancy in the evidence of P.Ws.l and 3 as to whether Jahar was hiding himself in the house of Kedar Mahanta or his backyard. Nothing much turns on that. Mr. D. Nayak, learned Counsel for Jahar, criticised the conduct of the prosecution for its non-examination of Sambhu who had, accompanied P.W. 1 during the search. Nothing much turns on that. Mr. D. Nayak, learned Counsel for Jahar, criticised the conduct of the prosecution for its non-examination of Sambhu who had, accompanied P.W. 1 during the search. In our opinion, non-examination of Sambhu does not weaken the version of P.W. 1 in, any manner. The first part is corroborated by the statement of the accused u/s 313 of the Code of Criminal Procedure and the whole of it till Jahar left with Sukumari for Bombay Chhak by the station diary entry Ext. 9. There is no contradiction between the story as recorded in the station diary entry, Ext. 9 and the story as narrated in Court. 10. The conduct of Jahar after he was told that Sukumari was missing appears unusual. If he had really sent back Sukumari to her house, he would become concerned when he was told that Sukumari was missing and cooperate with and assist Nandia to trace out Sukumari. On the contrary be attempts to avoid and escape. His unnatural and unusual conduct is inconsistent with his innocence. The next item of evidence is the discovery of the deadbody of Sukumari on his information. Though P.W. 1 stated that Jahar admitted that he had committed rape on Sukumari and had killed her, there is no corroboration to that version. Besides, the statement was made in the presence of police. Hence, it would not be admissible. But the information that the dead body was lying in the paddy field wherefrom the dead-body was seized is a strong piece of evidence. 11. Body of Sukumari was medically examined on the next day, i.e. 10-11-1988 by P.W. 7. There were fifteen external injuries of which ten were pressure abrasions seven on the neck and the rest on the face, nose, etc. Four were abrasions on the left eye-brow, left elbow joint, left arm and lower abdomen and the 15th one was a lacerated wound 2.5 centimetre in length, 1 centimetre in breadth, muscle deep running from the posterior angle of vagina along the perineum upto the anus. On internal examination, hyman was found to be torn, floor of the vagina channel was lacerated, haematoma under the scalp and soft tissues and muscles were contused corresponding to the pressure abrasions on the neck. On internal examination, hyman was found to be torn, floor of the vagina channel was lacerated, haematoma under the scalp and soft tissues and muscles were contused corresponding to the pressure abrasions on the neck. Cause of death was due to asphyxia and shock resulting from the injuries to the neck due to strangulation as well as injuries to the vagina. Injuries to the neck suggested that the deceased was strangulated to death by pressure or hand and the injuries further suggested that the deceased has throttled while she lay on the ground. Injuries to the neck and to the vagina were sufficient to cause death in the ordinary course of nature. The injury to the vagina could be caused due to forcible penetration of the penis. Having regard to the age of the girl she must have cried and screamed in pain and to prevent her throttling might have been resorted to. Evidence of the doctor leaves no manner of doubt that death was due to strangulation and injury to the vagina. The cloth and the underwear of Jahar were stained with blood. They were sent for chemical and serological examinations. Nail clippings were also sent. The reports disclosed that the dhoti and the underwear were stained with human blood. Blood was detected in the nail clippings. As the quantity was insufficient for serological examination, blood grouping could not be done. As regards blood stains on the cloth and underwear, the serological report disclosed that both were stained with human blood, but the group to which the human blood belonged could not be done as the quantity was insufficient. Jahar has taken a plea that his gum was bleeding and so his clot and underwear were stained with blood. His cloth being stained with blood is understandable. But it is difficult to believe that his underwear was stained with blood by bleeding from his gums. The explanation is not acceptable. Jahar was also medically examined by P.W. 8. He found abrasions of pin-head size over the margin of the prepuce. He opined that such abrasions could be possible by forcible intercourse. But it is difficult to believe that his underwear was stained with blood by bleeding from his gums. The explanation is not acceptable. Jahar was also medically examined by P.W. 8. He found abrasions of pin-head size over the margin of the prepuce. He opined that such abrasions could be possible by forcible intercourse. Much capital was made by the counsel for jahar of a statement of the doctor that there was absence of recent sign of sexual intercourse; but he also stated that by absence of recent sign of sexual intercourse, he meant that there was no sexual intercourse within one hour previous to his explanation. 12. The question now for our consideration is if the chain is complete by the various links consisting of facts and circumstances and if such established facts and circumstances only point to the guilt of Jahar and are entirely incompatible with his innocence and, exclude every reasonable hypothesis consistent with his innocence. 13. Several authorities were cited before us by Mr. Nayak in support of his contention that the mere circumstance that Jahar and Sukumari were last seen Was not conclusive or decisive of his guilt. It is, however, worthwhile to remember that each he is decided on its own facts and circumstances and no decision on fact can be a precedent to reach conclusions on fact. The duty of the Court is to consider the totality of the circumstances as established and consider if there is any gap in the chain and if despite the facts and, circumstances, die accused could as well be innocent. In other words, the facts and circumstances should clearly and unerringly point towards the, accused as the one who committed the offence. 14. As we have observed earlier nothing has been brought out from P.Ws. 1 and 6 through their cross-examination which would discredit them. We may observe that they have virtually not been cross-examined. Their story, therefore, remains unshaken if Jahar left the house of Nandia with Sukumari for Bombay Chhak and was apprehended a few hours thereafter, he owed an explanation as to how he dealt with Sukumari and about her whereabout A false statement would be a circumstance against him.. We may observe that they have virtually not been cross-examined. Their story, therefore, remains unshaken if Jahar left the house of Nandia with Sukumari for Bombay Chhak and was apprehended a few hours thereafter, he owed an explanation as to how he dealt with Sukumari and about her whereabout A false statement would be a circumstance against him.. His statement to P.W. 1 that he allowed Sukumari to return alone is highly improbable and is, therefore, unbelievable considered against the statement to the mother, P.W. 6, that he sent Sukumari in a truck. Counsel argued that the version of P.Ws.1 and 6 were contradictory. But it should be seen that the statements to P.Ws. 1 and 6 were not made at the same time. Recovery of the dead body from the paddy field on his information and presence of injuries on his genital and blood stains on his underwear, are the additional links in the chain. 15. All false explanations or denials may not be inculpatory but some false denials and explanations emanate from a guilty mind like the denial of Jahar that he left the house of P.Ws. 1 and 6 with Sukumari on the date of occurrence for Bombay chhak, his false statement as to the manner in which Sukumari returned to her village which were also prevaricating in nature and unerringly point to his guilty mind. It was observed in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, : ...The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiments that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary con text of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro, the web of our law should not be stretched morbidly to embrace every hunch hesitancy and degree of doubt. The evil of acquitting it guilty person light, heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. The evil of acquitting it guilty person light, heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law and this in turn leads to a public demand for, harsher legal presumptions against indicated persons and more severe punishment of those who are found guilty miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of innocent.... Taking all the facts and circumstances into consideration, we agree with the learned Sessions Judge that it was Jahar who committed rape on Sukumari and murdered her and his conviction u/s 302 and Section 376 of the Indian Penal Code is unexceptionable. 16. Next consideration is the sentence that should be appropriate, just and proper. The leading decisions on the point are the cases of Bachan Singh Vs. State of Punjab, and Machhi Singh and Others Vs. State of Punjab. Life imprisonment is the rule. Death penalty should be imposed only in the rarest of rare cases. It is said that death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The crime has to be viewed from various angle: (a) manner of commission of murder, (b) motive for commission of murder, (c) anti-social or socially abhorrent nature of the crime and (d) magnitude and personality of victim of murder. In Kuljeet Singh alias Ranga Vs. Union of India (UOI) and Anr it was observed that the relevant query at the stage of sentencing was if the survival of an orderly society demanded extinction of life of the person who has committed the murder. In Asharfi Lal and Others Vs. State of Uttar Pradesh it was observed: ... The punishment must fit the crime. These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the Appellants acted shocks the judicial conscience. In Asharfi Lal and Others Vs. State of Uttar Pradesh it was observed: ... The punishment must fit the crime. These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the Appellants acted shocks the judicial conscience. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by Section 302 of the Penal Code. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment.... 17. Jahar was aged 55 years and was an ex-police constable. He picked up acquaintance with the family and established relationship with Sindhu, the mother of the deceased as god-father and god-daughter, attended the 10th day celebration and brought wearing apparel for the youngest child on the subsequent occasion. All this was confidence building stratagem. Nandia and Sindhu are simple, unsophisticated folk. They are poor too. He took advantage of their simplicity and credulity, took Sukumari along with him for the purpose of purchasing dress for her. The innocent child followed him and the parents simple and unsuspecting as they are allowed their daughter to go with Jahar and the innocent girl aged 5 years raped and murdered. What could be more revolting, dastardly, depraving and brutal: In our view, this is one of the rarest of rare cases where by our failure to impose death penalty, we would be letting down the society which has reposed trust in us. 18. In the result, we dismiss the appeal preferred by Jahar, accept the reference and confirm the death penalty imposed by the learned Sessions Judge, Mayurbhanj. A. Pasayat, J. I agree. Appeal dismissed. Final Result : Dismissed