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2003 DIGILAW 541 (JHR)

State Of Jharkhand v. Sushil Murmu

2003-04-29

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. Death Reference No. 3 of 2002 under Section 366 of the Code of Criminal Procedure referred by the 1 st Additional Sessions Judge, Jamtara and Cr. Appeal No. 874 of 2002 preferred by sole appellant named above arise from the impugned judgment and order dated 29-11-2002 and 30-11-2002 respectively passed in Sessions case No. 165 of 1997/215 of 2001 by Shri Surendra Nath Pandey, 1st Additional Sessions Judge, Jamtara, whereby and whereunder appellant, Sushil Murmu was found guilty for the offence under Sections 302 and 201 of the Indian Penal Code and he was convicted and sentenced to death for the offence under Section 302 of the Indian Penal Code and also to undergo R.I. for seven years for the offence undor Section 201 of the Indian Penal Code. However, co-accused Rijmani Manjhian and Bahmani Murmu ware found not guilty and they ware acqultted- 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of PW-2, Somlal Besra, the father of Chirku Besra, aged about nine years, who is the deceased of this case, recorded by PW-11, N.N. Singh, A.S.I. Binda Pathar P.S. Dumka (now Jamtara) on 13-12-1996 at 13.30 hours at the said police station regarding the occurrence which is said to have taken place between 11-12-1996 and 12-12-1996, though the specific time of the occurrence has not been disclosed. On the basis of the fardbeyan aforesaid case was instituted on that very day at 23.00 hours as per formal FIR (Ext. 3) which was received in the Court empowered to take cognizanceon 15-12-1996. 3. The prosecution case, in brief, is that PW-2, Somlal Besra came to his house in the evening of 11 -12-1996 after harvesting paddy and he did not find his nine years old son, Chirku Besra (the deceased of this case) in the house and he started making hectic search of him and in course of search he enquired from Birad Murmu, the son of appellant, Sushil Murmu, who works as Janguru and Birad Murmu aforesaid told him that worship of Goddess Kali was performed in his house and Chirku Besra had taken Prasad in his house and he does not know as to where he has gone from there. It is alleged that the informant made hectic search of his son aforesaid in the village and at the places of relatives but all in vain. It is alleged that the informant made hectic search of his son aforesaid in the village and at the places of relatives but all in vain. The prosecution case further is that in course of search on 13-12-1996 he learnt from PW-14. Ashok Choudhary, the younger son of Manilal Choudhary of village Dalbedia that he has seen a dead-body kept in a sack in the pond of Barki Dagol when he had gone to wash his buffalo and on this information he went to the said pond and found a sack in which there was a dead-body and thereafter he returned to his house and told about the same to his brother, Dhena Besra and thereafter informant in the company of his brother aforesaid went to the said pond at Barki Dagol where he saw the dead-body in a sack in the said pond and while they were returning from there PW-4, Ranjit Marandi, son of Balak Marandi of his village told him that he has seen appellant, Sushil Murmu carrying something in a sack on his cycle going towards the pond at 11 Oclock yesterday (12-12-1996) and he returned immediately to his house after throwing the said sack. The prosecution case further is that thereafter appellant was caught who confessed his guilt and stated that he has sacrificed Chirku Besra by severing his head before Goddess Kali in which his wife Bahmani Murmu and his mother Rajmani Manjhian have assisted him, It is also alleged that some hurt has been caused to the appellant in course of his apprehension. It is also alleged that appellant has been kept confined in the village when he was attempting to flee away. 4. In course of investigation the headless dead-body of Chirku Besra was recovered kept in a sack from the pond of Barki Dagol in village Murgabani. The said pond is situated on the boundary of village Murgabani and Torojoria and there was 3 deep water in the said pond. In pursuance of confessional statement of the appellant recorded by the I.O., severed head of the deceased was recovered from a water field ditch kept concealed under 3 x 3 stone in presence of the I.O. and a large number of co-villagers and the said ditch is known as "Torn Dagol Gaddha" which is situated about two kilometers south from Barki Dangol pond aforesaid. The severed head of the deceased was found kept in a plastic bag. Inquest reports of the headless dead-body of the deceased as well as severed head of the deceased were prepared which are Ext.-4 and 4/1 respectively which were witnessed by PW 1 and 9 and their signatures thereon are Ext.-1 and 1/1 as well as Ext. 1/5 and 1/6 respectively. In pursuance of confessional statement of the appellant his house was searched by the I.O. In presence of the appellant and several other co-villagers and a temple of Goddess Kali was found in the said house, The southern portion of the temple was found to be daubed by cow dung and paddy straw was kept at the distance of 3 from the idol of Goddess Kall in the circumference of 7 x 10 x 5 which is at a distance of 7 south of the southern door of the said temple and when the said paddy straw was removed, a ditch was found under it which had blood stains therein. Blood stains were also found on the southern wall of the said temple and blood stained earth was seized as per Ext. 5/1 in presence of the witnesses. Bogy (also known as Dab) which is said to be the weapon of the assault in this case was also recovered from the thatched roof above the idol of Goddess Mansa Maa in the room of the house of the appellant who himself took out the said weapon of assault and handed over the same to the I.O. which was also seized as per Ext. 5 in presence of PW-1 and 9 who have put their signatures (Ext. 1/2 and 1/4 respectively) thereon. 5. The appellant had pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case only on mere suspicion. 6. 5 in presence of PW-1 and 9 who have put their signatures (Ext. 1/2 and 1/4 respectively) thereon. 5. The appellant had pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case only on mere suspicion. 6. The learned Counsel below relied upon the testimony of PW-4, Ranjit Marandi, PW-14, Ashok Choudhary coupled with the extra judicial confession made by the appellant before PWs 2, 4, 7, 8 and 9 coupled with the recovery of the headless dead-body and severed head of the deceased alongwith weapon of assault and blood stained earth from the place of occurrence in pursuance of the confessional statement of the appellant made before the I.O. and found the appellant guilty for the offence under Sections 302 and 201 of the Indian Penal Code and awarded him extreme penalty for the offence under Section 302 of the Indian Penal Code and also R.I. for seven years for the offence under Section 201 of the Indian Penal Code. 7. Assailing the impugned judgment the learned Counsel for the appellant has submitted that there is no ocular witness of the alleged occurrence and the circumstantial evidence emanating on the record as per evidence of the prosecution witness suffers with legal infirmity which does not at all unerringly unmistakably and conclusively lead to the hypothesis of the guilt of the appellant and the chain of the circumstantial evidence is not complete in itself so as to lead the inference of the guilt of the appellant. It has also been submitted that the alleged extra judicial confession on which the learned Court below has based his finding regarding the guilt of the appellant is definitely not voluntarily as it has come into effect due to threat, coercion and assault on the appellant by the prosecution witnesses who are closely related with PW-2, the informant, and in this view of the matter, the testimony of the aforesaid interested and partisan witnesses is fit to be discarded in this case on that score alone. It has also been submitted that the alleged blood stained earth and the Bogy having blood stains have not been sent to the Forensic Laboratory for examination to establish the fact that the said Bogy and the earth alleged to have been recovered from the house of the appellant, have human blood thereon in absence of any report of the Serologist. It has further been submitted that statement under Section 313, Cr. P.C. of the appellant has been recorded in most perfunctory manner and all the alleged circumstances emanating on the record have not been brought to the notice of the appellant and the omitted circumstances cannot be used as being incriminatory against the appellant and in this view of the matter the alleged circumstances can never form the basis for the conviction of the appellant. Reliance has been placed upon the case of Shyam Nandan Singh v. State of Bihar, 1992(2) PLJR 441 and Bachu Singh and Ors. v. State of Bihar, 1992 (2) PLJR 623, in support of his contention. It has been contended that the post-mortem on the dead-body of the deceased has been conducted by Dr. L.K. Lal and the post-mortem report in respect thereof is per his pen but surprisingly enough he has not taken on oath in this case for the reasons best known to the prosecution and the said postmortem report was taken into evidence as per evidence of PW-13, Dr. Arun Kumar Chakraverty and in this view of the matter, the post-mortem report is in admissible in evidence and fit to be discarded. It has also been submitted that the learned Court below did not meticulously consider the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellant and the allegation imputed against the appellant in the facts and circumstances of the case does not at all fall in the category of a case rare of the rarest for awarding capital punishment to the appellant. Lastly, it has also been submitted that fardbeyan (Ext. Lastly, it has also been submitted that fardbeyan (Ext. 2) was recorded on 13-12-1996 at 13.30 hours and the case was instituted on that day at 23.00 hours regarding the occurrence which is said to have been taken place between 11-12-1996 and 12-12-1996 but the FIR and the fardbeyan has been received in the Court empowered to take cognizance on 15-12-1996 whereas it is the mandate of law that the fardbeyan and the FIR must be sent forthwith to the Court empowered to take cognizance and there is no explanation forthcoming on the record regarding the abnormal delay in sending the FIR and the fardbeyan to the said Court and in this view of the matter, the fardbeyan suffers with embellishment and the same is bereft of spontaneity and coloured version regarding the occurrence has crept therein and in the facts and circumstances of the case the fardbeyan is antedated and ante time and the appellant has been roped in the got up case on mere suspicion as a result of conspiracy of the prosecution witnesses. Thus, the impugned judgment is unsustainable. 8. Refuting the contention of the learned Counsel for the appellant, it has been submitted by the learned A.P.P. that there is legal and reliable evidence on the record adduced by the prosecution witnesses to substantiate the guilt of the appellant. Chirku Besra, 9 years old son of PW-2, the informant was found missing from his house and the informant, on return from paddy field in the evening of 11-12-1996 and not finding his son in the house made hectic search for him in the village and also in the house of his relatives and in course of that search Birad Murmu, the son of the appellant, who works as Janguru told him on query that the said Chirku Besra had taken Prasad in his house where the worship of Goddess Kali was performed and he does not know as to where he has gone from there. In course of hectic search the informant learnt from PW-14, Ashok Choudhary, the younger son of Manilal Choudhary of village, Dalbedia that he has seen a dead-body kept in a sack in the pond of Barki Dagol when he had gone there to wash his buffalo and on that information PW-2, the informant went there and found a sack having dead-body therein in the said pond. Thereafter, the informant learnt from PW-4, Ranjit Marandi that the appellant was seen carrying something in a sack on his cycle going towards the pond aforesaid and thereafter, the appellant was also seen returning on his cycle without any sack aforesaid. It has been submitted that thereafter the appellant was caught while he was escaping from the village and the appellant confessed his guilt before the informant and several other persons that he has sacrificed Chirku Besra by severing his head before the altar of Goddess Kali. It has further been submitted that PW-14, PW-4 in their evidence on oath have corroborated the prosecution case and PWs 4, 7, 8 and 9 besides PW-2 have also deposed regarding the extra judicial confession of the appellant made before them regarding the commission of murder of the deceased before the altar of Goddess Kali. In course of investigation, the confessional statement of the appellant was recorded by PW-11 the I.O. and in pursuance of the said confessional statement the severed head of the deceased kept in a plastic bag concealed under stone in a water field ditch at "Tora Dagol Gaddha" was recovered by the appellant himself in presence of the I.O. as well as a large number of persons including the prosecution witnesses of this case and thereafter the house of the appellant was also searched where blood stained earth was recovered after removing the paddy straw and the appellant himself produced Bogy which is the weapon of assault in this case. It has further been submitted that the evidence on the record read with the objective findings of the I.O. coupled with the extra judicial confession of the appellant before the several prosecution witnesses of this case conclusively, unerringly and unmistakably lead to the only hypothesis of the guilt of the appellant regarding the commission of murder of the deceased by sacrificing him at the altar of the Goddess Kali. It has also been submitted that the materials on the record show that the murder of the deceased has been committed by the appellant only and not by any other person and the evidence taken as a whole forms an unbreakable chain leading to only hypothesis of the guilt of the appellant. It has also been submitted that the materials on the record show that the murder of the deceased has been committed by the appellant only and not by any other person and the evidence taken as a whole forms an unbreakable chain leading to only hypothesis of the guilt of the appellant. It has also been submitted that the absence of serologist report regarding the blood stained earth and the blood stains appearing on the Bogy can never be a circumstance to cast a cloud of suspicion to the very credibility of the prosecution case and utmost it can be a lach on the part of the I.O. which has no relevancy in the case at all in view of the unimpeachable evidence on the record of the prosecution. The non-examination of the medical witness conducting the post-mortem examination and in his absence the post-mortem report being proved by a qualified doctor cannot be taken into a circumstance against the prosecution case when there is legal and reliable evidence on the record to establish the fact that Chirku Besra has been sacrificed by the appellant at the altar of Goddess Kali. It has been contended that material evidence which have come on the record against the appellant has been put to the appellant in his statement under Section 313, Cr. P.C. and, therefore, there is no lach in respect thereof in this case. Lastly, it has been contended that in view of the evidence of the witnesses on the record read with the objective finding of the I.O. coupled with the extra judicial confession and the recovery of incriminating articles referred to above, the learned Court below has rightly come to the finding of the guilt of the appellant and has rightly awarded him capital punishment in view of the fact that a nine years old boy was sacrificed at the altar of Goddess Kali under blind faith of the appellant to appease the Goddess Kali and as such the case definitely falls in the ambit of the rare of the rarest case. 9. In the case of Masalti and Ors. 9. In the case of Masalti and Ors. v. State of Uttar Pradesh, AIR 1965 SC 202 and also the case of Arjun Marik v. State of Bihar, 1994 (Suppl.) (2) SC 372, the apex Court has observed that in a murder trial the appellant stands the risk of being subjected to the highest penalty prescribed by the Indian Penal Code and naturally the judicial approach in dealing with such cases has to be cautious, circumspect and careful and in dealing with such appeals or reference proceedings where the question of confirming a death sentence is involved, the Court has to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of death and all arguments urged by the appellant and all material infirmities pressed before the Court on his behalf must be scrupulously examined and considered before a final decision is reached. Keeping in view the guidelines referred to above of the apex Court let us now scan the evidence on the record. There is no denying the fact that Chirku Besra, nine years old son of PW-2, the informant has been murdered and his headless dead-body kept in a sack was recovered from the pond of Barki Dagol and in course of investigation in pursuance to the confessional statement made by the appellant his served head kept in a plastic bag was recovered from a water filled ditch (known as Toro Dagol Gaddha) kept concealed under 3 x 3 stone by the appellant in presence of the I.O. and a large number of co-villagers and said dead-body and the severed head were identified by PW-2, the informant and others to be the dead-body of Chirku Besra aforesaid. PW-11 the I.O. has deposed to have prepared the inquest report (Ext.-4) of the headless dead-body of the deceased on 13-12-1996 at 15.00 hours kept in a sack recovered from the Barki Dagol pond at that very pond situate east of village Dalbedia and it shows that the head of the said dead- body was missing severed from its neck and the neck appears to be severed by sharp cutting weapon and the dead-body was wearing a half pant, The inquest report (Ext.4/1) of the severed head of the deceased shows that there was a black tattooing mark put on the said severed head and the said head has been severed from the upper part of the neck by some sharp cutting weapon- P.W. 11 in para 8 has further deposed that the said severed head and headless trunk when adjusted together were identified as the severed head and trunk of the deceased. Dr. U.K. Lall has conducted the postmortem examination of the headless dead-body and the severed head of the deceased on 14-12-1996 at 12.05 hours. The post- mortem report per pen of Dr. L.K. Lall has been proved by PW-13, Arun Kumar Chakraverty and the said post-mortem report is Ext.-6 in this case. It appears from Ext. 6 that there were following ante-mortem injury on the dead-body of the deceased : (1) One oblique incised wound 5" x 1/2" x scalp deep left parietal scalp, (2) One circumferential incised wound of 1" circumference cutting through and through the whole neck at the junction of neck and head with blood clots an exposed areas. It further shows that death of the deceased is due to shock and hemorrhage as a result of Injury No. 2 aforesaid caused by heavy sharp cutting instrument and the time elapsed since death is 36 hours to 72 hours. It appears from the ordar sheet of the record of the sessions trial that steps in accordance with law was taken by the learned Court below to procure the attendance of Dr. L.K. Lall for his examination in this case, but all in vain and following of the ratio of case of Haridyanand Yadav v. The State of Bihar, 2000 (1) PLJR 387 , the learned Court below finding no other way got the post-mortem report proved by P.W. 13 Dr. Arup Kumar Chakraverty and the same was taken into evidence. L.K. Lall for his examination in this case, but all in vain and following of the ratio of case of Haridyanand Yadav v. The State of Bihar, 2000 (1) PLJR 387 , the learned Court below finding no other way got the post-mortem report proved by P.W. 13 Dr. Arup Kumar Chakraverty and the same was taken into evidence. The principle enunciated in the said case law is that if the doctor is not available even after efforts, reasons for his non-availability should have been stated and any other doctor familiar with the writing of the doctor who examined the injured should have been examined so that he could have also given his expert opinion on the injury report by that way, Court could have come to the conclusion that whether oral evidence of the witnesses are corroborative with the injuries recorded by the doctor. It is, therefore, crystal clear from the post-mortem examination (Ext.-6) read with inquest report (Ext. 4 series) coupled with the recovery of the headless dead-body and the severed head of the deceased that the death of the deceased has been caused by severing his head from the upper part of his neck completely. Therefore, the non-examination of Dr. L.K. Lall, who has conducted the post-mortem examination on the dead-body of deceased, in this case cannot be viewed as a lacunae of the prosecution case. Therefore, the contention of the learned of the appellant in respect thereof is negatived for the reasons stated above. PW-2, the informant had deposed that he did not find his son. Chirku Besra when he returned to his house in the evening of Wednesday i.e., 11-12-1996 from his paddy field after harvesting, he started making search of his son aforesaid in the different houses of the village, but all in vain and on the following morning in course of search he learnt from the wife of Malin Besra that Chirku Besra was found playing with Birad, the son of appellant and on this information he enquired from Birad who told him that the deceased was playing with him yesterday but he has left him in the way. His evidence is further to the effect that he made hectic search further for him and in that course he was going to his in-laws house and in the way Manilal Choudhary of village-Dalbedia told him that his son has seen the dead-body in a sack in the pond of Barki Dagol and on this information he had deposed to have gone to the said pond and found a sack in the said pond and thereafter he returned his house and narrated about the same to his brother and other co-villagers. His evidence is further to the effect that he found the headless dead-body of his son when he opened the said sack in the pond. He has further deposed that the Pradhan of the village was informed and the villagers called the appellant and asked him that Chirku Besra was playing with his son and as to why has he severed his head causing his death and at this the appellant stated before them that he has sacrificed Chirku Besra at the altar of Goddess Kali. He has also deposed that thereafter he went to the police station and lodged the case there and thereafter he returned to the village with the police. He has also deposed that the I.O. enquired from the appellant as to where he has kept the severed head of the deceased and at this the appellant in the company of the villagers and the I.O. went to Torojor Nala and he took out a plastic bag from the said Nala in which there was a severed head of Chirku Besra aforesaid. In para 2 of his cross-examination he has deposed that the appellant is a Janguru and a worshiper of Goddess Kali. PW-2 had further deposed that the villagers have also assaulted the appellant, who had made confession before them regarding the sacrificing Chirku Besra at the altar of Goddess Kali. PW-14, Ashok Choudhary of Dalbedia has deposed that he had gone to Barki Dagol pond to wash his she buffalo at 12 Oclock in the day where he found a sack containing a dead-body and he told about the same to several persons of the village. The evidence of PW-14 corroborates the testimony of PW-2, the informant regarding the existence of sack containing a dead-body in the said pond which he learnt in course of search from the father of P.W. 14. The evidence of PW-14 corroborates the testimony of PW-2, the informant regarding the existence of sack containing a dead-body in the said pond which he learnt in course of search from the father of P.W. 14. P.W. 4, Ranjit Marandi has deposed that on Thursday (i.e., 12-12-1996) at noon in the month of Aghan that he was getting his cattle grazed north of his village-Murgabani and he had seen the appellant going on his bicycle with a sack towards the pond, He further deposed that thereafter he had seen the appellant returning on his bicycle without the said sack. In para 5 of his cross- examination he has deposed that village Dalbedia is in the north of village Murgabani. In para 8 of his cross-examination he has deposed that he has informed Dena Besra, the brother of the informant that he has seen the appellant going towards the pond aforesaid on his bicycle with a sack. The evidenced of P.W. 4 corroborates the averments in respect thereof made in the fardbeyan (Ext. 2) of the informant. P.W. 3 has deposed that after seeing the headless dead-body of his son kept in a sack in the said pond he came to his village and informed the Pradhan of the village and other co-villages and thereafter the appellant was called and on query the appellant made confessions before them in his presence that he has sacrificed Chirku Besra at the alter of Goddess Kali in his house. He has also deposed that thereafter he went to the police station and lodged the FIR and thereafter the police came to the village and made investigation and the appellant confessed before the I.O. and in pursuance to that confession the appellant went to Torojoro Nala with the Investigating Officer and co-villagers and the appellant took out the severed head of the deceased from the ditch of Torojoro Nala aforesaid which was kept in a plastic bag and he handed over the said severed head to the t.O. P.W. 4 has deposed that the appellant was apprehended by the villagers and he has confessed before them that he has committed the murder of Chirku Besra. P.W. 9, Hakim Murmu has deposed that on the information furnished by P.W. 14, Ashok Choudhary, son of Mohan Lal Choudhary of village Dalbedia he alongwith the information and others went to the said pond and found a sack containing the headless dead-body of a boy in the said pond and on query by the co-villagers in his presence and the informant, the appellant confessed that he has committed the murder of the deceased in association with his wife and mother and thereafter the case was lodged before the police. P.W. 2, the informant has deposed that after the extra judicial confession of the appellant made before him and other co-villagers he had gone to the police station and the I.O. came to the village and enquired from the appellant as to where he has concealed the severed head of the deceased and at this the appellant in the company of the I.O. and the co-villagers went to Torojoro Nala and he produced the severed head kept in a plastic bag from the said Torojoro Nala to the I.O. He has also deposed that the appellant has confessed regarding the commission of the murder of the deceased before the I.O. P.W. 3 has deposed that the appellant had disclosed before the police on query that he has concealed the severed head of the deceased in the Torojoro Nala and thereafter the I.O. in the company of several co-villagers went to Torojoro Nala and the appellant produced the severed head of the deceased kept in a plastic bag concealed in the said Nala. He has also deposed that the appellant had made confession before the I.O. that he has committed the murder of the deceased when he was apprehended by the police. Similar, is the evidence of PWs. 6, 7, 8, 9 and 10 P.W. 11, the I.O. has deposed that after recording of the fardbeyan of the informant he came to the place of occurrence and recovered the headless dead-body of the deceased kept in a sack in the Barki Dagol pond which is situated on the boundary of villager Torojoria and Murgabani and prepared the inquest report (Ext. 4) in presence of P.W. 1, Rabindra Murmu and P.W. 9, Hakim Murmu. 4) in presence of P.W. 1, Rabindra Murmu and P.W. 9, Hakim Murmu. P.W. 1, Rabindra Murmu has deposed that he was going for harvesting paddy crop and the information came to him and told him that his son has been found and thereafter he alongwith others went to the said Barki Dagol pond where he found the headless dead-body of the deceased and the police was informed and the inquest report of the dead-body was prepared in his presence and his signature thereon is Ext. I. P.W. 9 has also deposed to have gone to the said pond where he had found the headless dead-body of the deceased kept in a sack in the pond and in his presence the inquest report was prepared and his signature thereon is Ext 1/5. P.W. 5 has deposed that he has gone to the pond aforesaid alongwith others and the dead-body was taken out from the said pond in presence of the police and the said dead-body was in a sack. P.W. 11 has further deposed that the severed head of the deceased was recovered from Torojoro Nala and the appellant himself brought the severed head of the deceased kept in a plastic bag from the said Torojoro Nala concealed under 3 x 3 stone in a ditch field with water in his presence as well as in presence of several villagers. He has further deposed that prior to the recovery of the severed head of the deceased the appellant has confessed before him regarding the commission of the murder of the deceased by him and he has recorded the confessional statement of the appellant and thereafter he alongwith co-villagers went to Torojoro Nala with the appellant where the appellant took out the severed head from the said Nala. He has also deposed that he has prepared the inquest report (Ext. 4/1) of the severed head of the deceased. P.W. 1 and 9 in their evidence on oath have deposed to have witnessed the said inquest report which was prepared in their presence and their signatures thereon are Ext. 1/1 and 1/6 respectively. P.Ws. He has also deposed that he has prepared the inquest report (Ext. 4/1) of the severed head of the deceased. P.W. 1 and 9 in their evidence on oath have deposed to have witnessed the said inquest report which was prepared in their presence and their signatures thereon are Ext. 1/1 and 1/6 respectively. P.Ws. 2, 3, 6, 7, 8 and 10 have corroborated the testimony of the I.O. regarding the recovery of the severed head of the deceased by the appellant in their presence as well as of P.W. 11, the I.O. It is, therefore, established beyond all reasonable doubts from the evidence referred to above that the headless dead-body of the deceased was recovered from the Barki Dagol pond and severed head of the deceased was recovered from Torojoro Nala which were identified by the information and others as the dead-body and severed head of the deceased. It is also established by the evidence referred to above that the appellant has made extra judicial confession before the informant and others as stated above regarding the commission of murder of the deceased by him sacrificing the deceased before the altar of Goddess Kali. I once again revert to the evidence of P.W. 11, the I.O. He has deposed to have inspected the house of the appellant. He has deposed in para 5 of his evidence that there are two courtyards in the house of the appellant situated in village Murgabani. In one of the courtyards, there is Khalian and the temple of the Goddess and the floor of the said temple is made of cement and there is a triangular "Stupa" of the Goddess and the said temple faces south. He has deposed to have found the southern portion in front of the temple faces south. He has deposed to have found the southern portion in front of the temple daubed with cow-dung and there was paddy straw at the distance of 3 in the south from the said temple in a diameter of 7 x 10 x 5. He has further deposed that in course of investigation he got the paddy straw removed in presence of the witnesses and on its removal he found a ditch there having blood stains. He also deposed to have found blood stains on the wall in the close vicinity south of the said temple. He has further deposed that in course of investigation he got the paddy straw removed in presence of the witnesses and on its removal he found a ditch there having blood stains. He also deposed to have found blood stains on the wall in the close vicinity south of the said temple. He has further deposed that he has recovered the blood stained earth from there in presence of the witnesses and also got the photographs snapped of the said temple which are materials Ext. 1 and 1/1. P.W. 12, Lakhindar Murmu has deposed that the I.O. has recovered the blood stained earth in his presence from the premises of the temple and has prepared the seizure list on which he has put his signature (Ext. 5/1). The I.O. has further deposed to have seized the Bogy which is the weapon of assault by which the deceased was done to death which was produced before him by the appellant himself taking it out from the thatched roof of the room in which there is the temple, in presence of the witnesses which was seized as per seizure list (Ext 5), He has also deposed that there were blood stains on the said weapon of assault and a copy of the said seizure list was handed over to the appellant who has put his signature thereon. P.W. 1 has deposed that the Bogy i.e., the weapon of assault was recovered from the house of the appellant by the I.O. in his presence and he has witnesses the seizure list and his signature thereon is Ext. 1/ 2 P.W. 9 has also testified the recovery of the Bogy aforesaid from the house of the appellant and its seizure as well as the preparation of the seizure list. He has also deposed to have witnessed the said recovery and seizure and his signature on the seizure list is Ext. 1/7. He has specifically deposed that the said Bogy was recovered from the room in which there is the temple of Goddess Kali. 10. Admittedly there is no ocular witness of the commission of murder of the deceased by the appellant in this case but the following circumstances emanate from the evidence on the record; (i) The appellant is a Janguru and worshiper of the Goddess Kali and there is a temple of Goddess Kali in the house of the appellant. 10. Admittedly there is no ocular witness of the commission of murder of the deceased by the appellant in this case but the following circumstances emanate from the evidence on the record; (i) The appellant is a Janguru and worshiper of the Goddess Kali and there is a temple of Goddess Kali in the house of the appellant. (ii) Chirku Besra, the nine years old son was found missing from his house on 11-12-1996. (iii) A hectic search was made by P.W. 2, the informant and others in the village and outside to find out and trace the said Chirku Besra. (iv) In course of search, the informant learnt on 13-12-1996 from P.W. 14, Ashok Choudhary, the son of Mohan Lal Choudhary of Dalbedia that he had found a sack containing a dead-body in the pond of BarkiDagol when he had gone there to wash his she buffalo. (v) The informant alongwith others went to the said pond and found the headless dead-body of his son, Chirku Besra in the sack lying in the said pond, (vi) P.W. 4, Ranjit Marandi had seen the appellant going on his bicycle with a sack containing something towards the pond on 12-12-1996 and returning on his bicycle soon thereafter without the said sack. (vii) Chirku Besra aforesaid was found playing on 11-12-1996 with Birad Murmu, the son of the appellant. (viii) The appellant was apprehended by the villagers including the informant and he confessed before them to have sacrificed Chirku Besra at the altar of Goddess Kali. (ix) In course of investigation, the headless dead-body of Chirku Besra was recovered from the pond aforesaid by the I.O. in presence of the witnesses and inquest report was prepared. (x) The appellant made confessional statement before the I.O. regarding sacrificing Chirku Besra at the altar of Goddess Kali in his house. (xi) In pursuance of the said confessional statement, the appellant in the company of the I.O. and several villages came to the Torojoro Gaddha and the appellant brought the severed head of the deceased kept in a plastic bag concealed under 3 x 3 stone in the water of Torojoro ditch and the severed head was identified to be of Chirku Bessa and the inquest report in respect of the severed head shows the existence of tattooing mark on his forehead. (xii) In course of search of the house of the appellant, blood stains were found in the ditch after removal of the straw south of the temple of Goddess Kali and there were also blood stains on the wall in the said temple. (xiii) Bogy (weapon of assault) was produced by the appellant taking it out from the thatched roof of the temple room which had blood stains thereon. (xiv) As per the post-mortem report of the dead-body of the deceased his head was found to be severed from the upper part of the neck by heavy sharp cutting instrument. (xv) The recovered Bogy is a heavy sharp cutting instrument. 11. It is well-settled that when a case rests on circumstantial evidence, such evidenced must satisfy that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and circumstances, taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the guilt was committed by the accused and none else. Here in this case, the circumstances emanating from the evidence on the record referred to above taken cumulatively from a chain so complete which unerringly and unmistakably lead to the only hypothesis of the guilt of the appellant regarding the commission of murder of the deceased by sacrificing him on the alter of Goddess Kali in side his house. Furthermore, the circumstances emanating on the record referred to above are in consistent with his innocence. 12. It is pertinent to mention here that the prosecution witnesses who have taken oath in this case cannot be said to be partisan and interested witnesses though most of them are related with the informant as per the evidence of P.W. 10 appearing in para 3 of his deposition. There is evidence on the record that there is no semblance of enmity between the appellant and the aforesaid witnesses of the prosecution. There is also no animus for them against the appellant to depose falsely in this case. There is evidence on the record that there is no semblance of enmity between the appellant and the aforesaid witnesses of the prosecution. There is also no animus for them against the appellant to depose falsely in this case. It is the settled principle of law that the evidence of close relatives of the deceased cannot be discarded on the ground of their relationship with the deceased and in view of the close relationship they would leave out the real assailant and implicate any innocent person. Therefore, the evidence of the said witnesses cannot be discarded in the facts and circumstances of the case. The extra judicial confession made by the appellant before P.Ws. 2, 3, 4 and 9 is to the effect that he has sacrificed Chirku Besra on the altar of Goddess Kali. Extra Judicial Confessions are those which are made by the culprit elsewhere than before the Magistrate or in Court. It embraces not only expressed confession of crime but all those admissions and acts of the accused from which guilt may be implied. All voluntary confession made by the accused is receivable in evidence on being proved like any other fact. Here in this case, the extra judicial confession was voluntary made by the appellant before the witnesses aforesaid, when the appellant was called by the villagers in view of the evidence of P.W. 14 read with P.W. 4 after the finding of the headless dead-body of the deceased kept in a sack in Barki Dagol pond and the extra judicial confession made by the appellant stands corroborated by the clinching evidence on the record regarding the recovery of the headless dead-body and the severed head of the deceased coupled with the recovery of the blood stains as well as the weapon of assault from the premises of temple of the Goddess Kali inside the house of the appellant. It is equally relevant to mention here that the aforesaid witnesses though related with the informant who have deposed regarding the extra judicial confession made by the appellant have no enmity with the appellant even remotely and they appear to be unbiased and there is nothing on the record brought in their cross-examination which indicates that they may have a motive for attributing an untruthful statement of the appellant in the facts and circumstances of the case and on careful scrutiny of the evidence of P. Ws. 2, 3, 4 and 9, I have no hesitation to come to the conclusion that they are dependable and reliable witnesses from all points of view and the acknowledgment of the guilt of the appellant as per their evidence is clear and unequivocal. And last but not the least, the extra judicial confession made by the appellant is voluntary in character free from suspicion and has also a ring of truth therein and I see no legal impediment in acting upon the said extra judicial confession of the appellant made before them in the facts and circumstances of the case. Therefore, I see no substance in the contention of the learned Counsel for the appellant in respect thereof in the facts and circumstances of the case. In this case, the said Bogy which is the weapon of assault in sacrificing Chirku Besra before the altar of the Goddess Kali has not been brought before the Court though seized by the I.O. in the temple room inside the house of the appellant on production by the appellant himself. The I.O. has very categorically deposed that the said Bogy had blood stains thereon. Blood stained earth has also been recovered and seized from the premises of the temple after removal of the paddy straw and also appearing from the wall of the temple. The said weapon of assault and the blood stained earth have not been sent to the Forensic Science Laboratory for its examination by the Serologist. In a case, where death is due to injuries or wounds caused by lethal weapon, it is always desirable and also a duty cast on the prosecution to produce the said weapon of assault before the Court. Failure on the part of the prosecution to produce the weapon of assault sometimes causes abrasion in course of justice, but in the facts and circumstances of the case the omission on the part of the prosecution regarding the non-production of the weapon of assault does not cast a cloud of suspicion to the very credibility of the warp and woof of the prosecution case in view of the clinching and definitive character of the evidence on the record unerringly leading to the conclusion that Chirku Besra had been scarified by the appellant at the altar of Goddess Kali by committing his murder. In the case of Raghunandan v. The State of Uttar Pradesh, AIR 1974 SC 463 , it has been observed by the apex Court that failure of the police to send the blood for chemical examination in a serious of murder is to be deprecated. In such cases, the place of occurrence is often disputed. However, such an omission need not jeopardize the success of the prosecution case where there is other reliable evidence to fix of the scene of occurrence. Here in this case place of occurrence is not at all in dispute. Furthermore, there is clinching evidence on the record as per the testimony of P.W. 11, the I.O. which establishes the place of occurrence regarding the commission of murder of the deceased. Thus, I see no force in the contention of the learned Counsel for the appellant in respect thereof. The statement of the appellant under Section 313, Cr. P.C. was recorded by the learned trial Court on 17-8-2002 in which it was specifically brought to the notice of the appellant that he has sacrificed Chirku Besra at the altar of the Goddess Kali and thereafter he has thrown his dead-body kept in a sack in the pond with a view to screening the evidence of the commission of his murder. The appellant has answered the aforesaid questions in negative. The appellant has answered in the affirmative that he has heard the evidence of all the prosecution witnesses. It is relevant to mention here that severed head of the deceased in a plastic bag was produced by the appellant himself on recovery from Torojor Gaddha in pursuance of his confessional statement in presence of the villagers and the I.O. and before that he has also made confession before the villagers having scarified Chirku Besra at the altar of Goddess Kali. The question regarding these facts were not put specifically to the appellant in his statement under Section 313, Cr. P.C. Therefore, it is a case of inadequate examination of the accused under Section 313 Cr. P.C. and it simply means that some questions were omitted to be put to the appellant in compliance of the provision of Section 313, Cr. P.C. However, the entire spectrum of the evidence on the record stands covered by the questions which were put by the learned Court below to the appellant in course of his examination under Section 313, Cr. P.C. However, the entire spectrum of the evidence on the record stands covered by the questions which were put by the learned Court below to the appellant in course of his examination under Section 313, Cr. P.C. The appellant, in this case, is aware of the alleged extra Judicial confession made by him as well as of the production of the severed head of the deceased by him on recovery in presence of the witnesses and the I.O. in pursuance of his confessional statement and omission to put any question in his examination under Section 313, Cr. P.C. in respect thereof does not at all cause any prejudice to him due to omission to put direct question regarding them and the trial on this score is not vitiated at all in the absence of any prejudice caused to the appellant. Furthermore, the appellant has not made out any case regarding the prejudice caused to him in the memorandum of appeal. And last but not the last in the absence of any prejudice specifically pleaded the omission as stated above is a mere irregularity which in any case does not vitiate the trial. The examination of the accused is a very important duty which should be performed with particular care and in proper way. The provision under Section 313, Cr. P.C. is intended mainly for the benefit of the accused and also to help the Court in finding the truth and to provide an opportunity to explain them. It has been set at rest by the apex Court that every omission or error i.e., insufficient examination does not necessarily vitiate a trial because an error of this type falls within the curable irregularities. The question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In the facts and circumstances of this case and after giving thoughtful consideration of the matter, I have no hesitation to come to the conclusion that no prejudice has at all been caused to the appellant due to omission in putting direct specific questions in respect thereof. Therefore, the ratio of the case of Shyamnandan Singh and also of the case of Bachu Singh (supra) is of no help to the appellant in the facts and circumstances of the case. Therefore, the ratio of the case of Shyamnandan Singh and also of the case of Bachu Singh (supra) is of no help to the appellant in the facts and circumstances of the case. As such, there is no force in submission of the learned Counsel for the appellant in respect thereof. The fardbeyan (Ext. 2) and FIR (Ext. 3) cannot be viewed as antetimed and antedated in the facts and circumstances of the case though it has been received in the Court empowered to take cognizance on 15-12-1996. As per prosecution case Chirku Besra was found missing from his house on 11-12-1996 when the informant returned from his paddy field after harvesting. Thereafter, a hectic search for him was made by the informant and other prosecution witnesses continuously till 13-12-1996 and in course when headless dead-body of the deceased was found in the pond aforesaid as per testimony of P.W. 14 read with P.W. 4 and thereafter the extra judicial confession being made by the appellant the fardbeyan of the informant was recorded on 13-12-1996 at 13.30 hours and the investigation proceeds in the case conducted by P.W. 11, the I.O. The inquest report of the headless dead-body and the severed head of the deceased on being recovered were prepared at 15.00 hours and 16.30 hours respectively on their recover. The formal FIR was drawn on that very day and the dead-body of the deceased was received for conduction of the post-mortem examination in the Hospital on 14-12-1996 at 11.50 hours and post-mortem was conducted on that very day at 12.05 hours. Section 157 of the Code of Criminal Procedure mandates and casts a duty upon the I.O. forthwith to send the report of the cognizable offence to the concerned Magistrate. The purpose behind it is that if the FIR is received late in the Court, empowered to take cognizance, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, and in such a situation, it may be indicative of the fact that the FIR came to be recorded later on after due deliberation and consultation and it may be antetimed in the absence of any explanation for the delay in despatch or receipt of the FIR by the Magistrate. However, mere delay in despatch of the FIR itself is no ground to throw away the prosecution case in its entirety. Sending the report late to the concerned Magistrate empowered to take cognizance is a circumstance which provides a basis for raising suspicion that the FIR is the result of consultation and deliberation and it was recorded much later on the date and time mentioned in it. Here, in the facts of this case, referred to above there is no delay at all in recording of the fardbeyan of the informant regarding the occurrence in question, preparation of the inquest report and sending the dead-body for post-mortem and the post-mortem having been conducted on the following day. Therefore, the question of the fardbeyan of the informant being antetimed is totally ruled out in the facts and circumstances of this case. It is also relevant to mention here that there is no suspicious circumstances surrounding the fardbeyan of the informant and there is equally no possibility of any embellishment in the fardbeyan in the facts and circumstances of the case, Therefore, the fardbeyan and the FIR having been received in the Court on the 3rd day of their recording in the facts and circumstances referred to above cannot be viewed as an infirmity of the prosecution case for holding the FIR and the fardbeyan as antetimed and antedated. Therefore, the contention of the learned Counsel for the appellant in the facts and circumstances of the case has no substance. The learned Court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant regarding committing the murder of the deceased by sacrificing him at the altar of Goddess Kali. I see no illegality regarding the finding of the learned Court below of the guilt of the appellant. 13. Now I come to the question of death sentence awarded to the appellant. Section 354(3), Cr. P.C. mandates that in case of sentence of death the Court has to assign special reason for such sentence. The learned Court below has assigned special reasons for awarding capital punishment to the appellant which are as follows : "Considering the submissions noted above, I also find that the accused has committed the murder of an innocent child to sacrifice before the Goddess Kali as said by the witnesses. The learned Court below has assigned special reasons for awarding capital punishment to the appellant which are as follows : "Considering the submissions noted above, I also find that the accused has committed the murder of an innocent child to sacrifice before the Goddess Kali as said by the witnesses. Accused has also a son having a same age group of deceased. But he has not sacrificed his son, rather, an innocent child. In this district and also in the State, such type of occurrence took place, hence the accused Shushil Murmu deserves extreme penalty in view of the aggravating of his rope." It has been submitted by the learned amicus curiae for the appellant that the alleged murder of the deceased is the result of superstitious and blind faith of the appellant to appease Goddess Kali. The appellant is an illiterate tribal, aged about 40 years living in the midst of environment reminiscent only of the dark ages and where gross ignorance and superstitious prevailed and throughout whose life all opportunities of receiving education enlightenment had been denied and in a such superstitious state of mind the appellant is said to have committed the murder of the deceased and in this view of the matter, the capital punishment does not warrant in this case and learned Court below has not considered this aspect of the matter while imposing the capital sentence. It has further been contended relying upon the case of Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 , that all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence and in that event, the death sentence will become the rule and not an exception and Section 354(3) Cr. P.C. will become a dead later. It has also been submitted that the mitigating circumstance in this case outweighs the aggravating circumstances regarding the murder of the deceased and therefore, this case does not fall in the category of the rarest of the rare case for awarding capital punishment to the appellant. P.C. will become a dead later. It has also been submitted that the mitigating circumstance in this case outweighs the aggravating circumstances regarding the murder of the deceased and therefore, this case does not fall in the category of the rarest of the rare case for awarding capital punishment to the appellant. Refuting the contention aforesaid, the learned A. P. P. has submitted that it is a case of rarest of the rare in which a nine years old boy has been sacrificed at the altar of the Goddess Kali by the appellant and the murder of the said boy has been committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society and human sacrifice is always condemned and abhorred by the society. Furthermore, the murder in this case has been committed for a motive which evinces total depravity and meanness on the part of the appellant and furthermore, the appellant was in a dominating position over the deceased who happens to be an innocent child. Lastly it has been contended that there is something uncommon about the crime committed by the appellant which renders sentence of imprisonment for life inadequate in the facts and circumstances of the case and calls for a death sentence and furthermore, the nature of the crime is such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances favouring the appellant. In support of his contention reliance has been placed in the case of Bachan Singh v. State of Punjab, (1980)2 SCC 684 and also in the case of Machhi Singh v. State of Punjab, (1983)3, SCC 470. It is the. settled principle of law that capital punishment may be awarded in a case which is the rarest of the rare case. Under the Cr. P.C., 1973 the unmistakable shift in the legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. It is the. settled principle of law that capital punishment may be awarded in a case which is the rarest of the rare case. Under the Cr. P.C., 1973 the unmistakable shift in the legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. In the case of Bachan Singh (supra), the apex Court has observed as follows : "It is, therefore, imperative to voice the concern the Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought no to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." The following guidelines which emerge from Bachan Singh (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime. (iii) Life imprisonment is the rule and death sentence is an exception. (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime. (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." On the touchstone of the ratio of the case of Bachan Singh (supra), sacrifice of the nine years old child before the altar of Goddess Kali does fall in the category of a case rarest of the rare for the reason that it is the case of extreme culpability and there is something uncommon in the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence, Furthermore, in the facts and circumstances of the case, there is also no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances as advanced by the learned Counsel for the appellant, otherwise, it will give a wrong signal to the society. The crime committed by the appellant in sacrificing the nine years old child is enormous in proportion and the murder committed by the appellant is definitely extremely brutal, grotesque, diabolical, revolting and dastardly so as to arouse intense and extreme indignation of the community. Taking an overall global view of all the circumstances in the light of the guidelines of the apex Court in Bachans case (supra), the circumstances of this case are such that death sentence is definitely warranted against the appellant for committing the murder of the nine years old child by sacrificing him at the altar of the Goddess Kali. I, therefore, see no illegality in awarding death sentence to the appellant by the learned Court below in the facts and circumstances of the case. 14. I, therefore, see no illegality in awarding death sentence to the appellant by the learned Court below in the facts and circumstances of the case. 14. Considering all the pros and cons of the matter, the death reference is answered in the affirmative. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is hereby dismissed. Lakshman Uraon, J. 15 . I agree.