JUDGMENT 1. -Instant matters have been assigned to me by the Hon'ble the Acting Chief Justice under Section 392 of the Code of Criminal Procedure. I have bestowed my anxious and thoughtful consideration to the contentions advanced before me by the learned counsel for the accused and Public Prosecutor for the State and carefully scanned the record. 2. Admittedly there is no eye witness of the occurrence and the case rests on circumstantial evidence. Incident relates to Kumar Sona, a give five years of age, whose dead body was found on March 19, 1991 in Mohalla Baseri of village Kotputali. She was missing since evening of March 18, 1991. Bishan Dayal, father of the deceased girl instituted FIR with the Police Station Kotwali Kotputali and a criminal case under Section 302 and 376 of the Indian Penal Code was registered against an unknown person. Medical Board conducted post mortem of dead body of the girl and opined that probable cause of death was shock produced due to vaginal trauma and rupture of post fornix alongwith asphyxia due to ligature around the neck. Injuries were ante mortem in nature. Vaginal injuries were indicative of rape. Time since death was 6 to 24 hrs. approximately. 3. Investigation commenced and the accused appellant (for short the accused) was arrested on April 3, 1991. Medical Board examined the accused on April 4, 1991 and in the opinion of the Board there was nothing to suggest that the accused could not have performed the sexual intercourse. After completion of investigation, charge sheet was field and the accused was tried for the offences under Sections 302 and 376 IPC. The prosecution examined as many as 21 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded and the trial court awarded death sentence to the accused. 4. A cursory look at the statements of the witnesses will be useful before analysing the circumstances relied upon by the prosecution. 5. Jeewan Ram (PW 1) is the signatory of Panchnama of the dead body of the deceased girl. Bishan Dayal (PW 2) is the father of the deceased girl, who exhibited FIR. Puran Mai (PW 3) who is the owner of Heera Moti Cinema, stated ; that accused used to serve in his picture hall. On March 18 and 19 of 1991 the accused was on leave on the pretext of his engagement. 6. Bishan Dayal (PW 2) is the father of the deceased girl, who exhibited FIR. Puran Mai (PW 3) who is the owner of Heera Moti Cinema, stated ; that accused used to serve in his picture hall. On March 18 and 19 of 1991 the accused was on leave on the pretext of his engagement. 6. Kishori Lal (PW 4) had seen the dead body. He is the signatory of Panchnama.,Kalu Ram (PW 5) stated that after two three days of the recovery of dead body of the girl, he and his friend Santosh had gone to Heera Moti Cinema, the accused met them and expressed his anxiety about the incident of rape similar to the deceased girl and wanted to know the nature of punishment of such offence. 7. Amin (PW 6) though declared hostile but admitted in his cross examination having stated in his statement under Section 161 Cr.PC. he had seen accused Subhash entering in his house with girl Sona on 18.3.1991 at about 5.30 p.m. 8. Shalu (PW 7) aged four years was studying in Upper K.g. at the time of examination. She stated that she alongwith Sona and her cousin had gone to Goma's shop for purchasing balloons. On their return the accused asked Sona to wash her feet and took her inside his house. 9. Manoj (PW 8) is the real brother of accused. He stated that they had gone to Shahpura in connection with the engagement ceremony of accused and come back at about four five p.m. Santosh (PW 9) has been declared hostile Ramesh Kumar (PW 10) is the signatory of site plan of the place when the dead body was found. Dr. Narendra Kumar Goyal (PW 11) Dr. Sakhawat Ali (PW 12) Dr. Bhagwan Das Gupta (PW 13) Dr. Mahesh Gupta (PW 14) and Dr. Birbal (PW 15) conducted postmortem and examined accused. 10. Amarsingh (PW 16) stated that during 'Navratras' the accused offered him wine and asked as to whether he (Amar Singh) heard about a girl who eloped from Kotputali fair. 11. Shri Ram (PW 17) is a constable who deposited a sealed packet with the F.S.L. Panchu Ram (PW 18) is a photographer who prepared photographs of the dead body. 12. Amarsingh (PW 16) stated that during 'Navratras' the accused offered him wine and asked as to whether he (Amar Singh) heard about a girl who eloped from Kotputali fair. 11. Shri Ram (PW 17) is a constable who deposited a sealed packet with the F.S.L. Panchu Ram (PW 18) is a photographer who prepared photographs of the dead body. 12. Mali Ram (PW 19) is a motbir of recovery memo in whose presence Chaddi and Baniyan was recovered from a well on the information of the accused and the accused stated before him having committed rape with the girl. Ratna Ram (PW 20) is a constable who deposited sealed packet with the F.S.L. 13. Harish Chand Sharma (PW 21) is the Investigating Officer who conducted investigation and arrested the accused. 14. Chaddi (Under wear) and Baniyan alleged to have been recovered from a dry well on the information of the accused and seized vide seizure memo (Ex.P 24) were sent to F.S.L. According to the Laboratory Report (Ex.R 30) human blood of 'B' group was also detected on the clothes, vaginal swab and vaginal smear of the girl. 15. Now I proceed to examine, whether conclusion of guilt of the accused can be drawn from the circumstances appeared in the case on hand. Indirectly, by means of certain inference or deductions to be drawn from its existence and their connection with "facts probantia", is "circumstantial evidence's. In cases based on circumstantial evidence the legal requirement is that such evidence should be so strong as to point unmistakably to the guilt of the accused. In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The court's decision should not rest on suspicion. Where the case against accused depends on circumstantial evidence, any circumstance which destroys the presumption of innocence, can be taken into account to find out if the circumstances lead to no other inference but that of guilt. The court has to take the totality of circumstances into consideration and find if the case is established that is, the facts established are inconsistent with the innocence of the accused and incapable of explanation on any hypothesis other than that of guilt. The court has to take the totality of circumstances into consideration and find if the case is established that is, the facts established are inconsistent with the innocence of the accused and incapable of explanation on any hypothesis other than that of guilt. The chain of evidence must be so complete : (i) as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and (ii) as to show that within all human probability the act must have been done by the accused. 16. As per prosecution case following circumstances unmistakably point towards the guilt of the accused. (A) accused took the deceased in his house and the deceased was last seen in the company of the accused. (B) Accused conducted himself abnormally after the incident. (C) On the information of the accused his 'chaddi' (underwear) was recovered from a dry well. On being examined by FSL, presence of semen and 'B' Group, human blood was found over it, which tallied with the blood group of the deceased. (D) The accused was alone in his house on the date of incident. (E) Accused was unmarried young man of 21 years and was serving in the Heera Moti Talkies. On the date of incident and a day after he was absent from duty whereas he gave false explanation that he was on duty at the relevant dates. LAST SEEN 17. The prosecution examined PW 7 Shalu and PW 6 Amin to prove that the accused in the evening of March 18, 1991 took the deceased Sona inside his house on the pretext of washing her feet. Mr. A.K. Gupta, learned counsel appearing for the accused canvassed that PW 6 Amin was declared hostile and therefore his statement cannot be relied upon. Similarly the statement of Kumar Shalu cannot be taken in account, when she was examined in the court she was only four years of age. Thus she was of three years at the date of incident and it is not unnatural for a child of three years to remember the incident for such a long time and to narrate it in the court. Mr. Gupta, learned counsel further contended that prosecution has failed to prove that accused had taken Kumari Sona inside his house immediately before his death. Mr. Gupta, learned counsel further contended that prosecution has failed to prove that accused had taken Kumari Sona inside his house immediately before his death. It is not the case of prosecution that Kumari Sona was murdered in the house of the accused. Thus this possibility cannot be ruled out that she was not seen alive after wards. Goma would have been the bet witness to prove whether Sona come to his shop or not but Goma was not made witness by the prosecution. Kumari Shalu also did not mention the date of occurrence. It was further contended by the learned counsel that even if the case of prosecution be taken on its face value for arguments sake, there was sufficient interval between the time when the deceased and accused were last seen and the recovery of dead body. As there is no corroboration of the statement of child witness, no reliance can be placed on it. 18. Prosecution case looms largely on the testimony of PW 7 Shalu who was four years of age at the time of her examination in the trial court. Therefore the statement of Shalu needs scrutiny with extreme care and caution. 19. Section 118 of the Evidence Act lays down a general rule that every person, irrespective of his age, is competent to testify unless he is found incompetent due to the reasons mentioned therein. Section 118 make the 'understanding' as the sole lost of competency of a witness. Therefore, the competency of child to give evidence depends not on his age but the degree of his understanding. 20. Manu, the earliest jurist of Global recognition though placed a child in the category of those person who were not competent to testify but he allowed the child to be a competent witness where the offence was committed in a house where no person other than child was present: " fL=;kaI; laHkso dk;Z ckysu Lfkfojs;.k okAA f'";s.k cU/kquk okfil nklsu Hkwrdsu ok AA 70 AA " 21. In Mohamed Sugal v. The King (AIR (33) 1946 Privy Council 3) it was propounded thus - "In England where provision has been made for the reception of unshorn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. In Mohamed Sugal v. The King (AIR (33) 1946 Privy Council 3) it was propounded thus - "In England where provision has been made for the reception of unshorn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it, corroboration, unless required by statute goes only to the weight, ad value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unworn, but this is a rule of prudence and not of law." 22. Mst. Dhapu v. The State of Rajasthan (1983 RLW 80) was the case where the Division Bench of this Court observed thus : "The tender years of the child, coupled with other circumstances appearing in the case such for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary, but this is a question of fact in every case." 23. In Jetha Ram v. The State of Rajasthan (1985 RLW 601) another Division Bench of this Court indicated thus : "Now, there is a general belief that a child is artless, innocent and un-crafty. But at the same time, a child is susceptible to external influence and can be easily tutored as what he is to speak in a court. Once the child has been influenced and tutored to give a particular statement he fails to distinguish between what he has seen and what he has been tutored due to his raw understanding and safeness of brain. Therefore, while assessing and evaluating the testimony of a child witness, the possibility of his being tutored and influenced, especially when there is an opportunity for doing so, will have to be consistently kept in view. If after carefully scrutinising the testimony of a child witnesses, it appears pure, serene and unpolluted from external influences, it is entitled to the highest credit." 24. Turning to the case on hand, PW 7 Shalu made her answers in an intelligible and coherent manner. She was the student of U.K.G. and the manner in which she fared in the examination shows her high degree of understanding. Turning to the case on hand, PW 7 Shalu made her answers in an intelligible and coherent manner. She was the student of U.K.G. and the manner in which she fared in the examination shows her high degree of understanding. She categorically stated that accused asked Sona to wash her feet and took her inside his house. She without hesitation identified the accused in the trial court. There is nothing on record to show that she was susceptible to external influences and was tutored before her examination. Her. statement could not be shattered in the cross examination. Only one question was asked by the counsel for the accused to which she replied that she informed about the incident to her parents. Statement of Shalu under section 161 Cr.PC. was recorded by the S.H.O. on March 25, 1991 and the accused was arrested on April 3, 1991. The accused was not named in the FIR and from the record it is evident that there was no enmity between the accused and the father of Shalu. So question of tutoring her by her father or father of deceased Sona does not arise at all. There is impress of truth in the statement of Shalu and it appears pure, serene and unpolluted from externals influences therefore it is entitled to highest credit and there is no obstacle of any kind whatsoever in the way of accepting her evidence. I am unable to persuade myself with the argument of Mr. A.K. Gupta, counsel that a child of three years cannot remember the incident fore such a long time and to narrate it in the court. How the incident which had connection with the murder of her childhood friend Sona. could be forgotten by Shalu. It appears that when Shalu heard that dead-body of Sona was found in the morning of March 19, 1991 she did disclose that in the preceding evening the accused took Sona inside his house. Veracity of the statement of Shalu was not tested by the counsel for the accused in the trial court and she was not properly cross examined. Therefore I hold that PW 7 Shalu was a competent witness. Her competency to give evidence does not depend on her age but the degree of her understanding.25. By way of abundant caution, the court should look for corroboration while appreciating the statement of child witness. Therefore I hold that PW 7 Shalu was a competent witness. Her competency to give evidence does not depend on her age but the degree of her understanding.25. By way of abundant caution, the court should look for corroboration while appreciating the statement of child witness. As is held in Mohamed Sugal v. The King (Supra) this is a rule of prudence and not of law. In the case on hand the statement of PW 7 Shalu finds support and corroboration from the testimony of PW 6 Amin who admitted having stated in his statement under section 161 Cr.PC. that he had seen the accused on March 18, 1991 at about 5.30 PM. entering in his house alongwith girl Sona. Witness Amin was declared hostile and according to the learned counsel for the accused no reliance can be placed on his testimony but I am not impressed by this argument. To my mind the credit of the witness Amin has not been completely shaken. The part of his testimony in which he admitted having given statement to the police that in the evening of March 18. 1992 he had seen the accused entering in his house with Sona, is credit worthy and can be acted upon as is held by their lordships of the Supreme Court in State of U.P. v. Brahma Das ( 1986 (4) SCC 93 at page 97) that "such part of the testimony of hostile witness as inspires confidence can be accepted by the court.26. In the light of the discussions made hereinabove I hold that circumstances of "last seen' stands proved by the prosecution.CONDUCT OF THE ACCUSED27. The prosecution examined PW 5 Kalu Ram and PW 16 Amar Singh and PW 19 Mali Ram in order to prove the abnormal conduct of the accused. PW 5 Kalu Ram stated that after two three days of the recovery of dead body of the girl, he had gone to Heera-Moti Talkies, where the accused met him and expressed his anxiety about the incident of rape similar to the deceased girl and wanted to know the nature of punishment of such offence. PW 16 Amar Singh stated that during Navratras the accused offered him wine and asked as to whether he heard about a girl who eloped from Kotputali fair. PW 16 Amar Singh stated that during Navratras the accused offered him wine and asked as to whether he heard about a girl who eloped from Kotputali fair. PW 19 Mali Ram is a motbir of recovery memo in whose presence Chaddi (underwear) and Baniyan was recovered from a dry well on the information of the accused and the accused, at the time of recovery stated before him having committed rape with the girl.28. Evidence of contemporaneous conduct is always admissible on a surrounding circumstance. Subsequent conduct may also be exculpatory conduct of the accused is equally admissible under section 8, of the Evidence Act. The illustrations appended to section 8, are so many instances of natural presumptions which the court may draw. From preparations prior, or slight subsequent to. a crime may be inferred or presumed the guilt of the accused.29. In Prakash Chand v. The State (Delhi Administration) ( AIR 1979 SC 400 at page 404) their Lordships of the Supreme Court observed thus- "There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by section 162 Cr.PC. What is excluded by section 162 Cr.PC. is the statement made to a Police Officer in the course of investigation and not the evidence relating to conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example the evidence of the circumstances, simplicitor that an accused person led to police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the Evidence Act." 30. The evidence of PW 5 Kalu Ram, PW 16 Amar Singh and PW 19 Mali Ram, therefore, is admissible under section 8 of the Evidence Act as evidence of conduct of the accused. The evidence of PW 5 Kalu Ram, PW 16 Amar Singh and PW 19 Mali Ram, therefore, is admissible under section 8 of the Evidence Act as evidence of conduct of the accused. The query made by the accused to the witness Kalu Ram and Amar Singh was nothing but anxiety and apprehension of guilty mind of the accused. It cannot be termed as anxiety of the ordinary person of the locality. Nobody shall have anxiety to know about the punishment that could be awarded to the offender, except the person of guilty mind. Ordinary person of the locality shall usually express that offender of such a heinous crime should be dealt harshly by the courts or should be punished severely. To my mind this circumstance may be treated as incriminating one against the accused as it unmistakably points towards the guilty mind of the accused :HUMAN BLOOD FOUND ON CHADDI (UNDERWEAR) OF THE ACCUSED TALLIED WITH THE BLOOD GROUP OF THE DECEASED31. Testimony of PW 21 Harish Chand Sharma. Investigating Officer, that on the basis of information of the accused recorded by him on Ex.P 23 a chaddi and Baniyan wrapped in a news paper were recovered from a dried well, stands corroborated by PW 19 Mali Ram an independent witness. Chaddi. Baniyan and News paper were sent to Forensic Science Laboratory (FSL) in a sealed packet deposited by constables Shri Ram (PW 17) and Ratnaram (PW 20). Vide FSL Report Ex.P 30 human blood of 'B' group was detected on chaddi and blood of the same group was detected on the clothes, vaginal swab and vaginal smear of the deceased girl Sona. FSL Report Ex.P 27 also reveals that human semen was detected on chaddi. PW 19 Mali Ram has proved the recovery of Baniyan and Chaddi at the instance of the accused from the well. The accused gave information under section 27 of the Evidence Act in respect of his chaddi and Baniyan concealed by him in a well. This information was reduced into writing by PW 21 Harish Chand Sharma I.O. It was duly signed by the accused and exhibited as Ex.P 23. As the articles were sent in the FSL the same could not be produced in the trial court. This information was reduced into writing by PW 21 Harish Chand Sharma I.O. It was duly signed by the accused and exhibited as Ex.P 23. As the articles were sent in the FSL the same could not be produced in the trial court. But from the recovery memo Ex.R 24 the prosecution has proved that Chaddi and Baniyan wrapped in news paper were recovered at the instance of the accused and the testimony of PW 19 Mali Ram and PW 21 Harish Chand Sharma could not be shattered in the cross examination. The FSL reports also denote the examination of human blood and semen over chaddi sent in a sealed packet. Therefore, non-production of Chaddi and Baniyan in the trial court under these circumstances cannot be said to be fatal.32. According to the Post Mortem report Sona died because of shock produced due to vaginal trauma and rupture of post fornix alongwith asphyxia due to ligature around the neck. Injuries were ante-mortem in nature and vaginal injuries were indicative of rape. As human blood of 'B' group was detected on Chaddi and blood of same group was detected on the clothes, vaginal swab and vaginal smear of the deceased girl Sona. Compelling inference can be drawn against the accused that the blood stain was caused during the course of rape committed by the accused on the girl.33. Case of Shanker Lal v. State of Maharashtra ( AIR 1981 SC 765 ) is distinguishable. Recovery of underwear in the facts and circumstances of that case was held to be doubtful and evidence of the blood stains on the underwear of the accused was not found to be indicative of commission of offence of rape. ACCUSED WAS ALONE IN HIS HOUSE34. PW 21 Harish Chand Sharma I.O. stated that from the investigation it was established that accused was alone in his house on March 18, 1991. as all the member of his family had gone to a neighbouring village in connection of his engagement ceremony. PW 8 Manoj, a real brother of the accused stated that accused was in the house after he returned from the engagement ceremony at four five p.m. Manoj did not say that after he reached the house he (Manoj) remained in the house. Thus evidence of Shalu and Amin finds corroboration to the extent that the accused was present in the evening of March 18. Thus evidence of Shalu and Amin finds corroboration to the extent that the accused was present in the evening of March 18. 1991 in his house and this circumstance has been fully established.FALSE EXPLANATION OF ALIBI35. The accused in his statement under section 313 Cr.PC. denied the fact of his absence from duty on March 18th and 19th whereas PW 3 Puran Mai stated that accused was working under him in a Cinema Hall and on 18th and 19th March, he was on leave as some ceremony had to take place in connection with his betrothal at the neighbouring village. The question therefore arises as to why the accused gave false explanation. The only reasonable answer of the above question is that the accused wanted to conceal the fact of his presence in the house at the time of the incident. The circumstance that the accused gave, false explanation is fully established.ABSCONDED FROM THE TOWN A FEW DAYS AFTER THE INCIDENT36. PW 21 Harish Chand Sharma, I.O. stated that accused was called for the purposes of interrogation, initially he appeared in the police station but a few days after the incident he left Kotputali and was arrested from village Behror. No explanation was given by the accused as to why he left Kotputli for Behror. Even witness Harish Chand Sharma was not cross examined properly on this point. In his statement under section 313 Cr.P.C. the accused stated that witnesses had implicated him in the case on account of Parti-Bazi' (group-ism in the village) and he wanted to substantiate this fact by producing defence evidence but no such evidence was produced by him. The conduct of the accused in leaving Kotputli after interrogation by the police, is admissible under section 8 of the Evidence Act and the circumstances has been fully established by the prosecution.37. I am not impressed by the contention of the learned counsel for the accused that the accused was falsely implicated in the case. There is nothing on the record to show that the witnesses had enmity with the accused. Even no such suggestion was made in the cross- examination. I am not impressed by the contention of the learned counsel for the accused that the accused was falsely implicated in the case. There is nothing on the record to show that the witnesses had enmity with the accused. Even no such suggestion was made in the cross- examination. Learned counsel attempted to convince me by citing authorities in support of his arguments Principally I agree with the ratio emerges from the authorities but in my considered view they are distinguishable and it is not necessary for me to discuss them as the above proved facts and circumstances in my considered view unmistakably establish that it was the accused alone who after ravishing the tender age girl Sona, committed her murder. The facts established are inconsistent with the innocence of the accused and incapable of explanation on any hypothesis other than that of guilt. All the established circumstances show that within all human probabilities the criminal act must have been done by the accused. The guilt of accused is proved beyond any manner of doubt and he was rightly convicted under sections 302 and 376 of the IPC by the leaned trial court.38. This takes me to the question of propriety of death sentence awarded by the learned trial court. The factors in the causation of crime are physical ailments and organic and functional mental ailments coupled with an environment favourable for anti-social outburst. Conduct an expression of mental life. A delinquent act may be result of neurosis or psychosis or of susceptibility to crime by reason of mental defect coupled with some environmental factor or it may be result of psychopathy. The psychoses are a far more fruitful cause of criminal behaviour. The most common of these illness is depression. In depression there are delusions of poverty and sin, and of guilt and worthlessness. Under the effect of these delusions a patient may commit suicide or his aggressive tendencies may lead him to commit even murder of a spouse or a parent or child. The abuse of alcohol can also be regarded as powerful factor in the causation of criminality. The abuse of alcohol ultimately creates heavy damage to the body and mind. The cortex, which is "the seat of reason and judgment of self control" is affected. The abuse of alcohol can also be regarded as powerful factor in the causation of criminality. The abuse of alcohol ultimately creates heavy damage to the body and mind. The cortex, which is "the seat of reason and judgment of self control" is affected. Looking to these factors I am of the opinion that not the humanity within the criminal, but the criminality within the human being should be crushed.39. In Machhi Singh v. State of Punjab f 1983(3) SCC 470 ] capital punishment was held to be justified in 'rarest of rare cases' and it was observed that the death sentence can be awarded when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability on otherwise of retaining death penalty.40. Looking to the young age of the accused I am of the view that the case on hand is not amongst the 'rarest of rare cases' justifying death penalty. Sentence of life imprisonment would be altogether adequate in the facts and circumstances of the case.41. Resultantly. the appeals filed by the accused appellant are partly allowed His conviction under section 302 and 376 IPC is maintained but sentence of death awarded by the learned trial court is converted into imprisonment for life. The reference, therefore made by the learned trial court for confirmation of death sentence is declined.Pertly allowed. *******