Judgment P. K. Sarin, J. 1. The Death Reference and Criminal Appeal both are in respect of judgment dated 20-5-1993 passed by Second Additional Sessions judge, Bettiah, in Sessions Trial No.89 of 1992 on 20-5-1993 whereby the appellant Michael Alexis has been convicted and sentenced to death under section 302 of the Indian Penal Code (hereinafter referred to as, the Code ). The appellant has further been convicted and sentenced to ten years under section 364 of the Code and three years rigorous imprisonment under Section 201 of the Code. 2. The victim (deceased) is Jaya john, daughter of John Thomas (P. W.16 ). The deceased was aged about 10-11 years at the time of incident. The prosecution case, briefly stated, is as follows : "deceased Jaya John was living with mrs. Margret Ignasius (P. W.3), the sister of her mothers mother, at Bettiah in order to pursge her studies in St. Teresa Girls high School. The appellant is the brother of Smt. Merry James (RAW.8) who was also residing at Bettiah along with her husband, james Fidalis (P. W.9 ). The appellant is said to have been employed under abha Christian Social Welfare Society of which John Thomas (RW.16) was the secretary. It is alleged that appellant was removed from service in July, 1991, as his work and conduct was not found satisfactory. It is alleged that on account of such removal appellant bore grudge against john Thomas (P. W.16) and had declared earlier to take revenge for the same. Appellant along with one Dilip Felix (who also faced trial but has been acquitted)came to his sisters (RW.8) house af-Bettfah on 31-8-1991 as there was a ceremony of baptism of her (P. W.8)children scheduled to be held on 8th September, 1991. It is alleged that on 03rd september, 1991 appellant went to the school of the deceased and sought permission from the head-mistress (RW.7) to take the deceased with him on the pretext that her father was ill but the headmistress (RW.7) refused such permission. In the evening of 3-9-1991 deceased Jaya john was said to have gone to Church to offer prayers where Gladis @ Poonam (P. W.1) and Vinita Paskal (RW.2) had also gone to offer prayer. In the evening of 3-9-1991 deceased Jaya john was said to have gone to Church to offer prayers where Gladis @ Poonam (P. W.1) and Vinita Paskal (RW.2) had also gone to offer prayer. Appellant also went to the Church premises and when jaya John came out from Church he engaged her in talks and told RWs 1 and 2 that he would be bringing Jaya John home later on. When the deceased did not return to her house P. W.3 Smt. Margret Ignasius started a search for her and during that course Gladis (P. W.1) and vinita Paskal (RW.2) told her that the appellant was talking to deceased and had told that she (deceased) would be coming later on with him. P. W.3 went to the house of Smt. Merry James (RW.8) to enquire about the appellant where she was told that the appellant and Dilip Felix had come but they have left and a girl was also with them as was told by Dilip Felix to Smt. Merry James. Thereafter information was sent to the father of Jaya John (deceased)who was a resident of Chanpatia. John thomas also made search for his daughter and he was also told by, Gladis and Vinita Paskal that deceased Jaya was going with the appellant at the Church premises. He also made enquiry-from the headmistress of the School where the deceased was studying and also enquired from the sister of the appellant about the appellant. Thereafter, PW.16 lodged a report (Exhibit-9) on 4-9-1991 at 3.10 RM. at the Police Station at Bettiah. On 4-9-1991 a dead body of a girl aged about 11 years was sighted near dakunia bridge under Bargania Police Station, District Sitamarhi and its information was given to Bargania Police Station by pw.14 Ram Chandra Sahni whereupon hirdayanand Paswan (RW.18) came to that place and found the dead body. He held inquest on the dead body and sent it for post-mortem examination. RW.18 seized a pair of slippers from the dead body and prepared a seizure list (Exhibit-2 ). Dr. Mohan Jha held autopsy over the dead body. As the identity of the girl could not be known, the dead body, after post mortem examination, was burried as there was no claimant. RW.16 learnt that the dead body was at Sitamarhi whereafter to went to Sitamarhi and identified the dead body and brought the dead body for proper burial. Dr. Mohan Jha held autopsy over the dead body. As the identity of the girl could not be known, the dead body, after post mortem examination, was burried as there was no claimant. RW.16 learnt that the dead body was at Sitamarhi whereafter to went to Sitamarhi and identified the dead body and brought the dead body for proper burial. The clothes which were found on the dead body have also been identified by RW.1, Cladis @ Poonam. The investigation which was going on at Bargania Police Station of District sitamarhi was closed and the papers relating to that investigation was handed over to the Investigating Officer, who was investigating the offence on the information of RW.16 at the Police Station at Bettiah. " 3. Sri Suresh Kumar (P. W.20), sub-Inspector of Police, investigated the offence. Later on he handed over the investigation to Sri Purshottam Kumar singh, Sub-Inspector of Police (P. W.17)who submitted only charge-sheet in the case. The appellant made confessional statement on 7-9-1991 before Sri Satish chandra Sinha, Judicial Magistrate, first class, Bettiah (P. W.19) who recorded the same in accordance with Sec.164 of the Code of Criminal Procedure. The confessional statement of the appellant is Exhibit-10. 4. The appellant denied the charge and alleged false implication. He also retracted his confession and stated that the confessional statement was made on account of Police threats and he was assaulted and coerced to make the said statement. The retraction of the confession was made on 2-3-1993, when the statement of the appellant was recorded under Sec.313 of the Code of criminal Procedure. 5. The prosecution examined 21 witnesses in support of its case. Out of them P. W.13, Umesh Prasad, is formal witness while P. W.15, Anil Kumar mishra, has been tendered. P. W.10, rama Paswan, and P. W.11, Madan Pas-wan, are the witnesses of the seizure of slipper (Exhibit-2), 6. The defence did not examine any witness but produced three documents exhibits-A, B, and C. 7. Rw.1, Gladis @ Poonam is a girl aged alxmt 13 years. P. W.10, rama Paswan, and P. W.11, Madan Pas-wan, are the witnesses of the seizure of slipper (Exhibit-2), 6. The defence did not examine any witness but produced three documents exhibits-A, B, and C. 7. Rw.1, Gladis @ Poonam is a girl aged alxmt 13 years. She has stated that she had gone to Church to offer prayer on the fateful day at 6.00 P. M. and when she came out after prayers she saw appellant talking to deceased Jaya john in front of the statue of Mariyam and when she asked Jaya John to come with her for going to home the appellant told her that they would be coming a bit later. According to her statement she thereafter went to her home where, later on, P. W.3, Margret Ignasius came and made enquiry about Jaya John (deceased) and she told her that appellant had taken away the deceased. Statement of P. W.1 further shows that the deceased was wearing red colour frock (Exhibit-II)onthatday. 8. P. W.2, Vinita Paskal, had also gone to offer prayer at the Church at about 6.00 P. M. and when she came out after offering prayers she found appellant taking with deceased. She has stated that the appellant is the younger brother of her sisters husband and he used to visit her house. She stated that appellant asked her to go and told that he would bring Jaya John home. Thereafter she (P. W.2) went to her house where later on, P. W.3 came to make a search for Jaya John and she (P. W.2)told P. W.3 that appellant had taken Jaya john for a round. She has also stated about the presence of P. W.1, Gladis, at the Church. She stated that appellant took Jaya John towards the back side of the Church. 9. P. W.3, Margret Ignasius, is the sister of the mother of Jayas mother. She stated that she had also gone to church on the fateful day for prayers and after prayer she returned and at that time. Gladis (P. W.1) and Vinita (P. W.2)and Jaya John, the deceased, were near the statue of Mariyam and were offering prayers. 9. P. W.3, Margret Ignasius, is the sister of the mother of Jayas mother. She stated that she had also gone to church on the fateful day for prayers and after prayer she returned and at that time. Gladis (P. W.1) and Vinita (P. W.2)and Jaya John, the deceased, were near the statue of Mariyam and were offering prayers. She stated that when Jaya John did not return home she started that when Jaya John did not return home she started a search for her in the same night and during that course Gladis (P. W.1) and Vinita Paskal (P. W.2) told her that appellant was talking with Jaya and that Jaya went with the appellant. She (P. W.3) further stated that thereafter she went to the house of Smt. Merry James (P. W.8) to make enquiry and Smt. Merry James told her that appellant and Dilip Felix had gone with jaya John on a rickshaw to Marpa. P. W.3 stated that thereafter she sent information to the father of Jaya John at chanpatia and also started search for jaya John. She has stated that deceased jaya was living with her at Bettiah and was attending the School. 10. The statements of P. Ws.1, 2 and 3 show that deceased had gone to church to offer prayers in the evening of the fateful day. The statements of p. Ws.1 and 2 further show that they after prayer when they left for their houses appellant was talking to deceased and had taken her towards the back side of the Church and had told them that he would be coming with the deceased a bit later. Nothing material could be brought out in the cross-examination of these P. Ws 1, 2 and 3 so as to discredit their testimony. The evidence of P. Ws.1 and 2 fully establishes that the appellant was talking with the deceased at the Church premises in that evening and had taken her towards the back side of the Church and had also told that he would be coming with the deceased a bit later. This evidence establishes the first link of the prosecution story that appellant met the deceased at the Church and from that place he took her away. 11. This evidence establishes the first link of the prosecution story that appellant met the deceased at the Church and from that place he took her away. 11. P. W.4, Sheshnath Rai, has stated that he is a broker and is engaged in hiring trucks for carrying sand and-* gets the consignment loaded over it and in that connection he was at Bettiah on the date of occurrence. He has stated that he knew the father of Jaya John from before as he used to go to his (P. W.16) business establishment in order to purchase Chura (flat rice ). He has stated that he also knew the appellant, who was also working in the Chura Mill at Chanpatia run by father of Jaya John. Thus, his statement show that he was fully acquainted with the appellant and the deceased and her father. He stated that on the fateful date at about 6.30 p. M. he was near Beltiah Station chowk. He stated that on the stop signal of traffic constable a rickshaw stopped there and he saw the deceased jaya John along with appellant and dilip Felix on that rickshaw. He stated that when he enquired from Jaya John as to where she was going she (Jaya * john) told him that appellant had come to take her to her home because her father was ill. Thus, the statement of jt. P. W.4 further connects the link of the prosecution story that appellant was seen going with Jaya John, deceased, on a rickshaw near Bettiah Station Chowk and that deceased had told that appellant was taking her to her fathers home as her father was ill. 12. P. W.7, sister Matilda, the headmistress of St. Teresa Girls High School, has stated that Jaya John, the daughter * of John Thomas, was a student of Class-VI in her School in the year 1991. She stated that on 3rd September, 1991 a person had come to take Jaya John. She identified the appellant in court as that person who had come on 3-9-1991 to take Jaya with him. She stated that the appellant told her that the father of Jaya john was seriously ill and he had come to take her home. According to her statements, on her enquiry the appellant told her that he was a worker at the establishment of Jayas father at Chan-patia. She stated that the appellant told her that the father of Jaya john was seriously ill and he had come to take her home. According to her statements, on her enquiry the appellant told her that he was a worker at the establishment of Jayas father at Chan-patia. P. W.7, further stated that she did not permit Jaya to accompany the appellant. According to her statement in the next morning she came to know that jaya John was been kidnapped then she disclosed about a person coming to take jaya John from her School on the previous day. Thus, the statement of P. W.7, shows that appellant had made an attempt in the day time on 3-9-1991 to take away Jaya from her School itself but that attempt failed as the headmistress did not permit him. There appears to be no reason to disbelieve the testimony of P. W.7 who has identified appellant as that person who had come to take Jaya John with him on the pretext of illness of her father. 13. P. W.5, Agustain Adam, his stated that on 3-9-1991 he was told by his Mausi Margret Ignasius (P. W.3) that jaya John had not returned home from church where she had gone to offer prayers. P. W.5 has stated that thereafter he also started searching for Jaya John and search was made for her at Cinema hall, Lal Bazar and Railway Station. He has also stated that P. W.1, Gladis, and p. W.2, Vinita Paskal, had told that the appellant had taken Jaya John towards the back portion of the Church and that appellant had told them, i. e. (P. Ws.1 and 2) to go home and that Jaya John would come later. He has further stated that smt. Merry James (P. W.8), the sister of the appellant, told that her brother (appellant) and Dilip Felix had taken the bag and the girl. This witness had further stated that later on he went to search out the dead body of Jaya John which was burried by the river side. In cross-examination he stated that he got the body exhumed. 14. P. W.6, Anthony Adam, is the brother of P. W.5. He has also stated that P. W.3, Margret Ignasius, had come to his house in the evening and made inquiries about Jaya from Vinita and gladis. In cross-examination he stated that he got the body exhumed. 14. P. W.6, Anthony Adam, is the brother of P. W.5. He has also stated that P. W.3, Margret Ignasius, had come to his house in the evening and made inquiries about Jaya from Vinita and gladis. He stated that Vinita and Gladis told that they had seen appellant and jaya talking after the prayers near the statue of Mother Mariyam and when they asked Jaya to accompany them to house appellant told that they should proceed and Jaya would come later on. He has stated that search was made for jaya. He has stated that the appellant is related to him as the daughter of his cousin sister is married with the elder brother of appellant. 15. P. W.8, Smt. Merry James, is the real sister of appellant. She has stated that on 31st August, 1991 appellant and dilip Felix (since acquitted) had come to her house to participate in the baptism ceremony of her children. She stated that on 3rd September, 1991 appellant and Dilip went out after taking meals and later on only Dilip returned and took away bag saying that he and michael were leaving. She further stated that Dilip also told that a child was also accompanying with Michael. She stated that later on Margret Ignasius came to her house to search of the deceased. She further stated that appellant had earlier been employed by John Thomas (P. W.16 ). But he was removed from service later on. She stated that after removal from service appellant had come to her house and had declared that he would take revenge as John Thomas (P. W.16)had removed him from service. She stated that she herself did not see any one going with appellant and she stated about the child going with Michael as was told to her by Dilip. Her statement in cross-examination shows that appellant had gone out of her house at about 4.30 or 4.45 P. M. There appears to be nothing material in her cross examination so as to discredit the testimony of this witness. Her testimony shows that the appellant was present at Bettiah on 3-9-1991 and had let her house at about 4.30 4.45 P. M. and did not come back. Instead he got his bag fetched by sending Dilip to her house. 16. Her testimony shows that the appellant was present at Bettiah on 3-9-1991 and had let her house at about 4.30 4.45 P. M. and did not come back. Instead he got his bag fetched by sending Dilip to her house. 16. P. W.9, James Fidalis, is the husband of P. W.8. He has also stated that appellant was removed from service by John Thomas (P. W.16 ). He has stated that after termination of his service by John Thomas, appellant had come to his house and had declared that he would avenge as he had been removed from his service. He had also stated that the appellant and his friend, dilip, had come to his house on 31st august, 1991 and stayed for about two-three days. He stated that on 3-9-1991 dilip came to his house at about 6.00 p. M. and took away the bag telling that appellant was at the station along with the girl. P. W.9 further stated that some time thereafter he came to know that the daughter of John Thomas, who was living with Margret Ignasius (P. W.3), was missing and then expressed his suspicion to Smt. Margret Ignasius and his maternal aunt that appellant had left before the function (of baptism) and a girl was also with him and it might be that he had taken away the daughter of john Thomas. He has further stated that next day father of Jaya John and other relations came to him and they enquired as to what places the appellant might go and he told them about probable places where appellant could go. He stated that he himself went to morpa but appellant was not there. He stated that on 5th September, 1991 when they were going on a tonga to bairgania State, he came to know from tongawala and other passengers that a dead body was found at that place (on way to station ). He stated that thereafter he went to Sitamarhi and saw the dead body and then returned. His credibility was sought to be impeached by the defence with a suggestion that he was prosecuted or tried by Court Martial when he was in military Service but p. W.9 denied and stated that he took voluntary retirement from Army. He further stated that the appellant is his youngest brother-in-law as such he was sympathetic affection for him. His credibility was sought to be impeached by the defence with a suggestion that he was prosecuted or tried by Court Martial when he was in military Service but p. W.9 denied and stated that he took voluntary retirement from Army. He further stated that the appellant is his youngest brother-in-law as such he was sympathetic affection for him. He has admitted that his statement was not recorded by Police but his statement was recorded by Magistrate (under Section 164 of the Code of Criminal Procedure ). The statement of this witness shows that appellant was present at Bettiah on 3-9-1991 and suddenly left on 3-9-1991 and got his bag fetched from his house from dilip who told that appellant was at Station along with a girl. His statement further shows that the appellant, after termination of his service by the father of the deceased had declared to take revenge for that removal from service. However, in cross-examination he has stated that he did not see the dead body. Therefore, his statement that he saw the dead body at Sitamarhi does not appeart to be correct. 17. P. Ws.10 and 11 are the witnesses of seizure list of the seizure of slippers from the place where the dead body was found. 18. P. W.12, Jagdish Prasad, has stated that he saw the dead body of a girl lying in a paddy field and that at that time the nose, cheek and throat was found cut. He stated that the girl was wearing a frock of red colour and the girl was aged about ten years. 19. P. W.14, Ramchandra Sahni, stated that on getting information from ram Zulum Rai about dead body lying towards the bridge he went to that place along with Chankidar, Shiv Raj Rai, janak Rai and Dafadar Lal Babu Singh and found dead body of a girl lying in the western side of the road near the dakunia bridge in the field of Ram chandra Jha. He stated that the dead body was of a girl aged about 10-11 years and the throat, cheeks and nose were found cut. He stated that he wentj to Bairgania Police Station and informed the Officer-in-charge about the same. According to his statement dakunia bridge was at a distance of half mile from Bairgania Railway Station and that Dakunia bridge is at a height of four feet from ground level. He stated that he wentj to Bairgania Police Station and informed the Officer-in-charge about the same. According to his statement dakunia bridge was at a distance of half mile from Bairgania Railway Station and that Dakunia bridge is at a height of four feet from ground level. He stated that the dead body was found by the southern ridge of the field and that the field was just by the side of the road. The description about the place where the dead body was found is fully corroborated by the statement of P. W.18, sub-Inspector of Police, Hirdya Nand pawan. P. W.14 has also stated that there was a red frock, khaki short and printed slipper on the dead body. He also stated that there was blood mark on the ridge and also dragging mark from the road to the field. The statement of this witness further shows that the dead body was burried after twelve hours of the post mortem as there was no one to identify the dead body. 20. P. W.16, John Thomas, is the father of the deceased Jaya John. He stated that Jaya John was his only child and was aged about 11 years at the time of occurrence. He stated that in order to pursue her studies at St. Teresa Girls school, Bettiah, in Class-VI Jaya John was residing with her Nani, Margret Ignisius (P. W.3 ). According to his statement he received information on 03rd september, 1991 at Chanpatia through one Ravi Ignisius that Jaya John was missing and did not return home from church where she had gone to offer prayers at about 6.00 P. M. He stated that thereafter he came to Bettiah and learnt from Cladis (P. W.1) and Vinita paskal (P. W.2) that Jaya was seen with appellant at the Church. He stated that appellant was not found at Bettiah. He further stated that on enquiry made at the School, the sister (P. W.7) told that at about 10.00 A. M. on the date of occurrence a boy had come to take Jaya john to Chanpatia on the pretext that her father was seriously ill but the headmistress refused to grant permission. P. W.16 had also stated that Smt. Merry james, the sister of the appellant told that the appellant and Dilip Felix had taken Jaya away. P. W.16 had also stated that Smt. Merry james, the sister of the appellant told that the appellant and Dilip Felix had taken Jaya away. When Jaya could not be traced out he filed a report (Exhibit9) on 4-9-1991 at the Police Station. He further stated that James Fidalis (P. W.9) was sent to Marpa along with one george Francis to Chanpatia to trace out the appellant and they learnt while returning from Marpa that the dead body had een taken into custody by bairgania Police and had been sent to sitamarhi for post mortem and they came back and informed P. W.16 who went to Sitamarhi along with some persons and identified the dead body as that of Jaya. He stated that the dead body was later on brought to Bettiah and he was handed over the dead body. This witness and identified the frock and slipper which were found on or about the dead body. P. W.16 has also stated that he was Secretary of Abha christian Social Welfare Society and appellant was appointed in that Society on his application (Exhibit-4) after holding interview. He has stated that the appellant was appointed as Manager on Daily wages under appointment letter; copy whereof is Exhibit-5. He stated that the work and conduct of the appellant was not found satisfactory and an explanation was called from him by letter (Ex-hibit-6) and appellant sent letter of apology (Exhibit-7 ). P. W.16 further stated that the conduct of the appellant was found wanting and his work was not satisfactory as such the Society, by its letter dated 29-7-1991, terminated the services of the appellant and on account of this removal from service appellant became angry and has committed the present offence. The witness has been cross- examined at length but his testimony remained unshaken. 21. P. W.18, Hirdyanand Paswan, stated that he recorded the statement of p. W.14 in respect of the information of a dead body lying at village Pachtako ram near Dakuniya bridge in the field of Ram Chandra Jha. He stated that he visited that place and found the dead body of a girl lying there. He prepared the inquest report (Exhibit-3) on 4-9-1991 at 11.00 AM. he also found a shameez of brown colour (Exhibit-IV), a red frock (Exhibit-II), Short of Matmaila colour (Exhibit-Ill) and a pair of hawai sliper (Exhibit-I) on or about the dead body. He stated that he visited that place and found the dead body of a girl lying there. He prepared the inquest report (Exhibit-3) on 4-9-1991 at 11.00 AM. he also found a shameez of brown colour (Exhibit-IV), a red frock (Exhibit-II), Short of Matmaila colour (Exhibit-Ill) and a pair of hawai sliper (Exhibit-I) on or about the dead body. According to him the girl was about 10-11 years of age and her cheeks, nose and throat were found cut and there was scratch injuries on both the elbows and blood was there. He stated that as the identity of the girl could not be known he sent the dead body for post-mortem examination. He stated that he received information from Bettiah Police Station about the registration of case in respect of the same occurrence as such he handed over the relevant papers to the Investigating officer at Bettiah on 22-11-1991. 22. P. W.21, Dr. Mohan Jha had held autopsy over the dead body on 5-9-1991 at Sitamarhi Sadar Hospital at about 8.30 P. M. and prepared post mortem examination report (Exhibit-14 ). He found that rigour mortis was absent from the dead body. The doctor found the following ante-mortem injuries. " (i) Nose chopped off from base to a/a of the nose-bone exposed margin sharp. (ii) Whole left cheek with left half of both upper and lower lips chopped off-margins irregular, but sharp, cavity of mouth exposed: (iii) Right 2/3rd of upper and lower lip with 2" x 1 1/2" area of whole thickness of right cheek chopped off-margins sharp. (iv) Cut wound 5" x 2 1/2" bone deep in front of the neck cutting through trachea, oesophagus, muscles and vessels of the neck- common canotid of right side cut. On dissection P. W.21 found brain matter, pale and intact. Both chambers of the heart intact and empty, lungs were found intact and pale, stomach contained gastric juice, liver, spleen, kidneys intact and pale, intestine intact and pale, bladder empty, uterous was found intact and of normal size. From the evidence of P. W.21 it is apparent that the vaginal swab was taken and sent to the pathologist of the hospital. His report shows no spermatozoa In the opinion of the doctor, P. W.21, the time elapsed since death and post-mortem held was about 48 hours. From the evidence of P. W.21 it is apparent that the vaginal swab was taken and sent to the pathologist of the hospital. His report shows no spermatozoa In the opinion of the doctor, P. W.21, the time elapsed since death and post-mortem held was about 48 hours. The death, in the opinion of the doctor, was on account of haemorrhage and shock as a result of the above mentioned injuries which were caused by sharp cutting weapon, such as, a knife. RW.21 opined the injuries to be ante-mortem and sufficient to cause death instantaneously. " 23. P. W.20, Sri Suresh Kumar, Sub-Inspector of Police, and investigated the offence. He inspected the Church, the first place of occurrence wherefrom Jaya john was taken away. He stated that he apprehended both the accused persons (appellant and Dilip Felix) from Christian quarters and he also made. a prayer to the Chief Judicial Magistrate for recording confessional statements of the accused under Sec.164 of the Code of Criminal Procedure as the accused were willing to confess their guilt. He has stated that the handed over the dead body of the deceased to P. W.16. He has further stated that at the time of arrest of the appellant a Bush Shirt and Full pant, which were washed and were having blood stains, and other clothes were recovered from the possession of appellant and after seizing the same he prepared the seizure list (Exhibit-13 ). ~* however, such seized clothes have not been produced at the trial nor any chemical examination was got done in respect of alleged blood stains on the seized clothes. 24. The appellants confessional statement under Sec.164 of the code of Criminal Procedure recorded by Sri Satish Chandra Sinha, Judicial magistrate (P. W.19), has been brought on record as Exhibit-10. This statement was recorded on 7-9-1991. The confessional statement (Exhibit-10) shows that the statement of the appellant was recorded after questioning by the learned Magistrate and after warning him that his statement may be used against him. The learned Magistrate has also questioned whether the appellant was giving this statement voluntarily to which the appellant answered kin af- t firmative. The confessional statement, as contained in Annexure-10, contains the details of the appellant coming to bettiah to his brother-in-laws place and taking away of deceased Jaya John from the Church. The learned Magistrate has also questioned whether the appellant was giving this statement voluntarily to which the appellant answered kin af- t firmative. The confessional statement, as contained in Annexure-10, contains the details of the appellant coming to bettiah to his brother-in-laws place and taking away of deceased Jaya John from the Church. Appellant stated in the said statement that he got his suitcase fetched by his cousin Dilip Felix and at railway station he boarded the train along with Jaya John for Narkatiyaganj and at Narkatiyaganj he along with deceased and Dilip got down and he boarded another train at Narkatiyaganj station for foing to Bairganiya. He has stated that he had taken away deceased jaya John from Church on the representation that her father was ill. Appel-lant further stated in that confessional statement that from railway station bairganiya he went on foot along with jaya John and at about 3 to 330 A. M. when he reached near Dakua (Dakuniya) bridge deceased raised alarm. Then he assaulted Jaya by a knife on her neck and she fell down. He further stated that thereafter he dragged her body to four feet low ground. He stated that thereafter he returned to bairganiya station and boarded the train for Sitamarhi and from Sitamarhi he returned to Patna and from Patna he was taken to Bettiah by the maternal uncle of Jaya (deceased) who had come along with two persons to his sisters place where he was staying. He further stated that maternal uncle of Jaya took him and Dilip to his relations residence at Christian quarters at Bettiah and from that place Police arrested him and dilip. He stated that he was taken away jaya John for keeping her with him. The appellant retracted his confession when he was confronted with the same on 2-3-1993 at the time of recording his statement under Sec.313 of the Code of criminal Procedure. It may be pointed out that the confessional statement was made on 7- 9-1991 and it was not retracted earlier to 2-3-1993 although the appellant had full opportunity to retract the same even at the commencement of the trial. 25. It may be pointed out that the confessional statement was made on 7- 9-1991 and it was not retracted earlier to 2-3-1993 although the appellant had full opportunity to retract the same even at the commencement of the trial. 25. The learned Counsel for the appellant has contended that the confessional statement is not a voluntary statement and it was made under coercion pf Police as has been stated by the appellant in his statement under Sec.313 pf the Code of Criminal Procedure. It has been further contended that the appellant was produced before the chief Judicial Magistrate on 6-9-1991 and next day, i. e. on 7-9-l991 his statement was recorded by the Magistrate but the Magistrate before recording the statement did not talk to the accused nor gave any warning that the confession may be used against him. It has also been contended that before recording confessional statement no time for reflection was given to appellant on 7-9-1991 and he did not know for what purpose he was being produced in court. The learned Counsel for the appellant placed reliance on a decision of the apex Court in the case of Shivappa V/s. State of Kamataka, AIR 1995 Supreme court 980, wherein it has been observed that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. It is observed that it is an important piece of evidence and therefore it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy and the statutory provisions dealing with the recording of confessions and that the statements by the metropolitan Magistrate and Judicial magistrates are contained in Section 164 of the Code of Criminal Procedure and the rules framed by the High Court containing guidelines of recording of confessions. There cannot be any two opinion on the point that a confession can be acted upon and used against the accused if the same is found to have been made voluntarily and truthfully. 26. The Supreme Court in the case ofshankaria V/s. State ofrajasthan, AIR 1978 Supreme Court 1248, has laid down the following test in respect of confessional statement: (i) Whether the confession was perfectly voluntary? (ii) If so, whether it is true and truthworthy? 26. The Supreme Court in the case ofshankaria V/s. State ofrajasthan, AIR 1978 Supreme Court 1248, has laid down the following test in respect of confessional statement: (i) Whether the confession was perfectly voluntary? (ii) If so, whether it is true and truthworthy? it is observed that if the confession appears to the Court to have been caused by any inducement, threat or promise, such as, is mentioned in Sec.24 of the Evidence Act, it must be excluded and rejected brevi manu. As regards the test regarding confession being true and trustworthy it has been observed that one broad method which may be useful in most cases for evaluating a confession is that court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case and if on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances which may be taken to have satisfied the test. It has also been observed in the said case that there is no statutory provision in section 164 of the code of Criminal Procedure or elsewhere or even an executive direction issued by the High Court that there should be an interval of twenty-four hours or more between the preliminary questioning of the accused of the recording of his confession. It has been observed that how much time for reflection should be allowed to an accused person before recording his confession is a question which depends on the circumstances of each case. The Apex court has observed that object of giving such time for reflection to the accused is to ensure that he is completely free from Police influence. It has been observed that where the Magistrate was satisfied that confession is being made voluntarily and is preceded by judicial custody of 38 to 40 hours (as was the fact in the said case) the interval of fifteen minutes between preliminary question and the recording of confession was sufficient. The learned Trial Court has applied the test laid down by the Apex court in Shankarias case (Supra) and has come to the conclusion that the confession made by appellant was voluntary and truthfully. The appellant was produced by Police before Chief judicial Magistrate on 6-9-1991 for recording his confessional statement. The learned Trial Court has applied the test laid down by the Apex court in Shankarias case (Supra) and has come to the conclusion that the confession made by appellant was voluntary and truthfully. The appellant was produced by Police before Chief judicial Magistrate on 6-9-1991 for recording his confessional statement. The learned Chief Judicial Magistrate sent the appellant to judicial custody and ordered to keep him in seclusion and on 07th September, 1991 the appellant was proeuced from jail custody and the learned Magistrate, P. W.19, had questioned the appellant as to where from he was being produced and the appellant had replied that he has been brought from jail. The learned magistrate also asked him whether he has been coerced to make the statement and the appellant replied in the negative. The learned Magistrate also apprised him that the statement which he might give might be used against him and the appellant answered that he knows it. The Magistrate further asked the appellant whether he was making statement voluntarily to which appellant replied in affirmative. Thereafter the learned Magistrate asked him as to what he wanted to say and then the appellant made detailed statement giving vivid account of his movement from bettiah along with Jaya John to Bair-ganiya and about assaulting Jaya by knife and returning the Patna werefrom he was taken to Betiah by the relations of P. W.16. Such statement giving details could not have been made by appellant if he had not given the statement voluntarily and if had been coerced to make confessional statement - The statement of P. W.19 shows that after questioning and being satisfied that the appellant wants to make statement voluntarily he has given certificate of such statement at the bottom. The confessional statement, (Exhibit-10) contains the certificate by learned Magistrate wherein he has mentioned that he has explained to the appellant that he was warned to make a confession and if he makes any statement that may be used against him. The learned Magistrate has further recorded his satisfaction that the confession was voluntarily made. The confessional statement, (Exhibit-10) contains the certificate by learned Magistrate wherein he has mentioned that he has explained to the appellant that he was warned to make a confession and if he makes any statement that may be used against him. The learned Magistrate has further recorded his satisfaction that the confession was voluntarily made. The learned trial court has also referred to rule 29 of the Criminal Court Rules framed by this court which contains the procedure to be followed for recording confession and the entire emphasis, according to the guidelines laid down in the said rule, is for satisfaction of the Magistrate that the statement is being made voluntarily free from any influence and that the accused should be formally warned that anything said by him would be taken down and might be used against him. It may be useful to quote the following observation of the Supreme Court in shankarias case (supra): "where the accused, while retracting his confession, did not say that he was tutored by Police to make tha confession but only said that he made it under compulsion and threat and was false and a perusal of the confessional statement would show that prima facie there was nothing improbable or unbelievable in it; that it appeared to be a spontaneous account, studded with such vivid details about the manner of the commission of the crimes in question, which only the perpetrator of the crimes could know, and the confession received assurance in several material particulars from reliable independent evidence, mainly of circumstantial character, held the confession, coupled with the other evidence on the record, had unerringly and indubitably brought home the charges to the accused. " 27. Considering the evidence and circumstances on record, there appears to be no doubt that the confession made by the appellant was voluntary and that it contains truthful account of the events. The retracting of such confessional statement after lapse of time at the stage of recording of statement under Sec.313 of the Code of criminal Procedure is of no significance. The confessional statement is corroborated by the evidence led by prosecution regarding taking away of java by the appellant from Church to railway Station and coupled with the fact that the dead body was found near dakuniya bridge at Bairganiya from the place which appellant has indicated in his confessional statement. The confessional statement is corroborated by the evidence led by prosecution regarding taking away of java by the appellant from Church to railway Station and coupled with the fact that the dead body was found near dakuniya bridge at Bairganiya from the place which appellant has indicated in his confessional statement. The confessional statement of the accused-appellant supports the prosecution case. 28. Even if the confessional statement would not have been there the circumstantial evidence, as pointed out in prosecution evidence against the appellant, is sufficient enough to prove the charge against the appellant. It is well proved by the evidence on record that the appellant bore a grudge against the father of the deceased on account of termination of his service and he wanted to take revenge. It is also well proved that the appellant came to Bettiah and took away deceased with him from the church where deceased had gone to offer prayers and that the dead body of the deceased was found next day of such kidnapping in a field These circumstances connect the appellant with the crime. 29. The learned Counsel for the appellant has contended that the circumstances of accused having gone to attend baptism ceremony at her sisters place at Bettiah and of his going away on 03rd September, 1991 and that he told P. W.1 and P. W.2 that he would take the deceased later on to her residence had not been put to accused-appellant under Sec.313 of the Code of criminal Procedure when the appellant was examined as such these circumstances cannot be considered against the appellant. It is contended that circumstances not put to accused under section 313 of the Code of Criminal procedure cannot be considered against him. In support of this contention the learned Counsel for the appellant has placed reliance on a decision of the apex Court in the case of Sharad birdhichand Sarda V/s. State of maharashtra, AIR 1984 Supreme Court 1622. It is true that every incriminating circumstance to be used against the accused ought to be put to him while examining him under Sec.313 of the code of Criminal Procedure. However, omission to put any circumstance would not ipso-facto vitiate the trial unless it is shown that prejudice has been caused to the accused on account of such omission. The Supreme Court in the case of suresh Chandra Bahri V. State of Bihar, 1995 Suppl. However, omission to put any circumstance would not ipso-facto vitiate the trial unless it is shown that prejudice has been caused to the accused on account of such omission. The Supreme Court in the case of suresh Chandra Bahri V. State of Bihar, 1995 Suppl. (1) S. C. C.80 has laid down that the provisions in Sec.313 of the code of Criminal Procedure make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him of the exact case which he is required to meet but it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. It was observed that in event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso-facto vitiate the trial unless it is shown that some prejudice was caused to him. In the present case, it could not be shown how the accused was prejudiced by the omission to put the aforesaid circumstances. The accused was fully aware of the evidence led against him and all those circumstances have come in evidence and it cannot be said that the accused was not aware of such circumstances. The statement of the accused-appellant under section 313 of the Code of criminal Procedure shows that the questions relating to his attempt to take away the girl from School on 03rd September, 1991 and of actually taking the deceased on 03rd September, 1991 from bettiah Church was specifically put to the accused but he denied the same. The appellant has failed to convince that prejudice has been caused to him on account of omission to put circumstances about his coming to her sisters place at bettiah to attend Baptism ceremony or his disappearance on 03rd September, 1991 or about his telling P. Ws 1 and 2 at the Church that he would be escorting the deceased to her house later on. 30. 30. The prosecution evidence in the case has proved that the appellant-accused took away the deceased girl from the Church premises and he was seen going towards railway station along with the girl and that next day the dead body of the girl was found in a field near dakunia bridge under Bairgania Police station. The only inference, as the trial court has rightly drawn, is that the appellant took away the girl on false pretext and he murdered the girl and threw her dead body in the field near dakunia bridge. P. W.8, Smt. Merry james, is the real sister of the appellant. There is no reason to disbelieve her testimony about the appellant going to her house a few days earlier and abruptly leaving on 03rd September, 1991 and getting his bag fetched by his companion, Dilip Felix. The statement of p. W.8, Smt. Merry James, and her husband James Fidalis, P. W.9, show that the appellant had declared to avenge his termination of service by John Thomas, p. W.16, the father of the deceased. Thus, the motive for the crime is also borne out by the prosecution evidence. 31. Considering the entire materials and circumstances on the record, it is found that the prosecution has been able to prove the charges against the appellant beyond all reasonable doubt as has been held by trial court also. There appears to be no reason to take a contrary view. 32. The learned Counsel for the appellant has contended that the appellant is young man and was aged about twenty-six years when his statement was recorded under Sec.313 of the Code of Criminal Procedure as would be evident by the age recorded by the court in the statement under Sec.313 of the code or Criminal Procedure. It is contended that considering the young age of the accused-appellant and also the circumstances that there is no criminal antecedent of the appellant and he had no motive initially to kidnap the deceased for murder the extreme penalty of sentence of death ought not to have been awarded. It is contended that the ends of justice would have been met if only life imprisonment would have been awarded. It is well settled now that death sentence is to be awarded in rarest of rare cases. The principles for awarding death sentence have been laid down by Apex Court in several cases. It is contended that the ends of justice would have been met if only life imprisonment would have been awarded. It is well settled now that death sentence is to be awarded in rarest of rare cases. The principles for awarding death sentence have been laid down by Apex Court in several cases. The leading case on the point is of bachan Singh V/s. State of Punjab, AIR 1980 Supreme Court 898, wherein it has been held that the court should have special reasons for awarding the extreme penalty of death sentence. It has been observed that the Court must pay due regard both to the crime and the criminal and the relative weight to be given to the aggravating and mitigating factors and also the circumstances showing depraved character of the perpetrator. It has been further observed that there are numerous other circumstances justifying the passing of the lighter sentence. The scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the court in accord when the sentencing policy writ large in section 354 (3) of the Code of criminal Procedure. It has been observed that for the persons convicted of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistence to taking a life through laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. In the case of Anshad V/s. State of Karnataka, (1994) 4 S. C. C.318, the Apex Court observed that the courts are expected to exhibit sensitiveness in the matter of award of sentence particularly the sentence of death because life once lost cannot be brought back. It was further observed that the court should take into account the manner in which the crime was committed, the weapons used and the brutality or the lack of it, the antecedent of the criminal etc. The same view was reiterated in the case of Sheikh Ishaqe V/s. State of Bihar, 1995 (2) PLJR 1 : 1995 (2) BLJ 189. In that case three persons had been murdered by burning them alive with the help of kerosene and setting fire inside the room. The Apex Court commute the sentence of death to life imprisonment. The same view was reiterated in the case of Sheikh Ishaqe V/s. State of Bihar, 1995 (2) PLJR 1 : 1995 (2) BLJ 189. In that case three persons had been murdered by burning them alive with the help of kerosene and setting fire inside the room. The Apex Court commute the sentence of death to life imprisonment. Keeping in view the observations of the supreme Court in the cases, referred to above, it does not appear to be rarest of rare cases to award extreme penalty of death sentence to the appellant. According to the confessional statement of the appellant the girl was killed when she wanted to raise alarm while going with the appellant in the night and when they were near Dakunia bridge. It appears to be murder committed suddenly. There appears to be no criminal antecedent of the appellant who is a person of young age. Considering all these circumstances, punishment of life imprisonment would be sufficient to meet the ends of justice. The death sentence is liable to be commuted to life imprisonment. 33. Considering the entire facts and circumstances on the record, the conviction of the appellant under Sections 302, 364 and 201 of the Code is upheld. However, the sentence of death awarded by the Trial Court is commuted to life imprisonment for the offence punishable under Sec.302 of the code. Sentence awarded for the remaining charges need no interference. The criminal Appeal is dismissed subject to modification in the sentence as indicated above. In the circumstances, death reference is not accepted. Death Reference Not Accepted.