Judgment SHIVA KIRTI SINGH, J. 1. By the judgment under appeal the learned Additional District & Sessions Judge, FTC No.-5, Rohtas at Sasaram has convicted the sole appellant under Sections 302, 364, 376 and 201 of the Indian Penal Code (hereinafter referred to as IPC) and awarded death sentence for the offence under Section 302 IPC and in that view of the matter has not awarded any separate sentence for the other offences. He has also made a reference under Section 366 of the Code of Criminal Procedure for confirmation of the death penalty. The Reference and the Criminal Appeal preferred by the appellant have been heard together and will be governed by this common judgment. 2. In the night between 5th and 6th March, 1999 a musical programme described as Chaita was organized in Pathantoli of village, Koath, PS-Dawath, District-Rohtas. The programme started at about 10:00 P.M. near the house of the informant, Abdul Bari Khan (PW-5) who is father of the deceased girl, Guria aged about five years. There was a gathering of about 60-70 persons, all of the same village. At about 12:30 in the night the informant want to sleep in his house. His daughter, Guria went out to hear the programme and sat with women folk. At about 1:30 in the night a commotion took place on account of crying sound of a child from south of the house of a co-villager, Nanhak Sao situated in the east of the village. Even on search the informant could not locate his daughter. The information regarding cries of the child was given by Chandrama Yadav (PW-6). On this information 8-10 villagers went towards the east and near bushes they heard the crying sound and a search started in and around the bushes. Allegedly, the appellant Sikander Ansari stood up amongst the bushes and threatened Chandrama Yadav to return otherwise he will shoot him. On this, the villagers fled away and the informant also came back to his house. Thereafter with his family members and more villagers he began a search but nothing could be found. In the morning of 6.3.1999 from bushes across the canal a pink half pant of his daughter was found. Thereafter, the villagers came to know that Sikander Ansari has lifted the deceased child. Many persons of the village with a view to help the informant went to the house of the appellant. In the morning of 6.3.1999 from bushes across the canal a pink half pant of his daughter was found. Thereafter, the villagers came to know that Sikander Ansari has lifted the deceased child. Many persons of the village with a view to help the informant went to the house of the appellant. There they met father of the appellant and enquired about him and the missing child. The appellants father gave a terse and laconic reply that "as you have done so you will get, you may quarrel". 3. It appears that on hearing rumours, in the morning of 7.3.1999 at about 9:00 hours the Officer Incharge of Dawath PS, Arun Kumar Kesari (PW-8) reached the place of occurrence and recorded the Fardbeyan of informant to the aforesaid effect. On that basis the formal FIR of Dawath PS Case No. 12 of 1999 was recorded at 14:30 hours and investigation was conducted by PW-8, Officer Incharge himself. On 7.3.1999 at 9:45 A.M. the I.O. seized pink colour half pant of the victim girl and prepared a seizure list (Exhibit-9) witnessed by two persons including PW-4. On 8.3.1999 he seized a blue colour small frock of the victim girl and prepared another seizure list (Exhibit-9/1) which was witnessed by the informant and another person. He inspected the place of occurrence i.e. the place where Chaita was being performed. The place was a junction of main road and two galis. On the east of that place was the house of the informant intervened by the house of one Shakeel Khan. Dead body of the victim girl was found out at about 8:00 P.M. on 9.3.1999 at a distance of about 100 yards from Pathantoli in a Government Baha (Water Channel) in which there was some water. The dead body was without clothes and smeared in mud. He prepared inquest report (Exhibit-8) and sent the body for post mortem examination. According to I.O. the dead body showed blood coming out of the mouth and also from the private parts and it appeared that the girl had been killed by pressing of neck after rape. After recording the statement of witnesses and completing investigation the I.O. submitted charge-sheet against the appellant and his father who has been ultimately acquitted by the judgment under appeal. 4. After cognizance the case was committed to the court of sessions. After recording the statement of witnesses and completing investigation the I.O. submitted charge-sheet against the appellant and his father who has been ultimately acquitted by the judgment under appeal. 4. After cognizance the case was committed to the court of sessions. The appellant and his father, the co-accused denied the charges and faced trial wherein the appellant has been convicted and sentenced to death, as noted earlier. Although, the defence has not examined any witness nor filed any documentary evidence, from the trend of cross-examination and arguments the defence plea appears to be of false implication. 5. The prosecution in order to prove the charges has examined altogether eight witnesses. PW-1, Vijay Kumar Singh @ Vijay Kumar was examined under Section 164 Cr.P.C. also. He is a co-villager of the informant and has deposed that after the Chaita programme was over at about 1:30 in the night, Chandrama (PW-6) went towards his house and came back within ten minutes and reported that from the bushes sound of crying was audible. This witness alongwith about 10 others went that side and heard sound of crying. They found a pant there. A boy informed that he saw a person in the bushes. This witness in course of search heard a sound coming from the side of bushes threatening Chandrama to run away otherwise he would be shot. He and others could make out that the voice was of the appellant, Sikander. However, they had to retreat. In cross-examination the attention of this witness was drawn to some of his statements before the I.O. and the I.O. has stated in paragraph-28 that this witness had not disclosed to him about the threatening sound from the bushes that Chandrama should run away otherwise he will be shot or that the voice appeared to be of Sikander or that a boy had claimed to have seen a person in the bushes. 6. PW-2, Ranjeet Singh is a hearsay witness. He has claimed that in the morning he heard about the occurrence from one Ajay Chaudhary that Sikander Ansari had taken Guria in the bushes and when Ajay Singh, Vijay Singh, Chandrama Singh and others went in search then in the torch light they had seen Sikander Ansari with Guria in the bushes and Guria was crying and Sikander threatened Chandrama to run away otherwise he would start shooting. The villagers came back due to fear. The villagers came back due to fear. He has disclosed that during search the pant and frock of the girl was found and it had blood marks. He is a witness of the seizure of frock. He has claimed that he had gone with villagers to the house of the appellant. He first said that Sikander Ansari and his father were there and Sikander Ansari said -"as you have done so you have received" but he corrected himself and said that this was spoken by father of Sikander. He has also deposed that dead body of Guria was found in the Baha. He identified the appellant as well as the other accused, Jiru Ansari, father of the appellant in dock. In cross-examination his attention was drawn to his earlier statement before the I.O. and the I.O. has stated in Paragraph-29 that this witness had not stated to him that dead body of Guria was found in Baha. From the statement of this witness in cross-examination it appears that he does not have good sense of date and time and has claimed that Sub-Inspector of Police had arrived in the village in the night of occurrence itself. However, he has further stated in the next paragraph that he met the Sub-Inspector of Police again after 4-5 days from the date of occurrence. 7. PW-3, Abdul Ahad Khan is also a hearsay witness who has corroborated the prosecution story that the daughter of the informant disappeared in the night of 5.3.1999. In the morning the informant had come to his house and disclosed that the appellant had abucted his daughter while chaita was performed near his house. He was also told about crying sound of the child in the bushes where the appellant was seen in the light of torch and he had threatened the persons present there to run away otherwise he would shoot them. He has also deposed that some persons went to the house of the appellant where his father, Jiru Ansari informed them that the appellant was not there and also gave a reply that as they had done so they will get. He has disclosed that during search the pant and frock of the victim girl were found and on 9.3.1999 they saw brother and brother-in-law of Jiru Ansari near the Government Baha. He has disclosed that during search the pant and frock of the victim girl were found and on 9.3.1999 they saw brother and brother-in-law of Jiru Ansari near the Government Baha. They became suspicious and on further search they found the dead body of the girl in the mud of that Baha. He is a witness on the inquest. Although his attention was drawn to several statements made before the I.O. but no contradiction was obtained from the I.O. (PW-8). 8. PW-4, Sarfaraz Ahmad Khan is a formal witness. He has proved his signature as Exhibit-2 on the seizure list relating to half pant of the victim girl. 9. P.W. 5, Abdul Bari Khan is the informant. He has proved his signature on the fardbeyan (Exhibit-3). He has disclosed that when he went with Chandrama he heard his girls voice coming from the bushes but from a distance the appellant threatened from the bushed to return otherwise he will shoot. Then they came back. Again thereafter he and others went in search towards east for a long distance but could not find anyone. In the morning Chandrama informed him that he had seen the appellant with Guria in the bushes. They made search for the missing girl for some days. On 4th day the dead body of the girl was found in the Baha. Her frock was also found from a ditch. Her pink coloured half pant was also found and the clothes had been seized by the police. He has identified his signature on both the seizure lists which have been marked as Exhibits-1/1 and 2/1. He could not know the reason for the occurrence. His attention has been drawn to his earlier statement before the police but no contradictions have been obtained from the I.O. 10. PW-6, Chandrama Yadav has fully supported the prosecution case relating to hearing of cries of a child from the bushes by him. He went back with 10 persons towards bushes and started searching with a torch but in the meantime appellant came out of the bushes and threatened him to shoot and then they fled away. Again they went with 15-20 persons but they did not find the appellant or the missing girl in the bushes. The pink coloured half pant of the girl was recovered near the bushes. Again they went with 15-20 persons but they did not find the appellant or the missing girl in the bushes. The pink coloured half pant of the girl was recovered near the bushes. After three days the dead body of the girl was recovered from a Nala on the north of the village. He has alleged that the appellant committed rape and murder of the girl. He has identified the appellant. He has claimed in cross-examination that he had disclosed to the I.O. that Chaita was being performed near the house of the informant and he had a three cell torch with which he was searching in the bushes but he did not give that torch to the I.O. His attention was drawn to his earlier statement before the I.O. but no contradiction has been obtained from the I.O. Nothing worthwhile has been elicited in the cross-examination of this material witness. He has denied that there was any enmity on account of any land etc. with the appellant. 11. PW-7 is the doctor, Shankar Kumar Jha. He conducted autopsy on the dead body of Guria aged about 5 years on 10.3.1999 at 11:45 A.M. He found the whole body swollen, decomposed, fowl smelling and soiled with mud. He found that skin had peeled off over whole body. The mouth was open with tongue protruding and the eyes were open with bulging of eye balls. Blood clots were seen over the vaginal orifice and perineal region. Vulva found swollen. There was no ligature mark over neck. He found (i) lacerated wound 2" X ½" X ¼" on posterior vaginal wall extending up to perineum just above anal orifice, (ii) Anterior vaginal wall also found lacerated, (iii) hymen found ruptured, blood clot present in vaginal canal and the perineal region. On dissection of thorax he found hametoma in subtutaneous tissues and muscles with laceration of muscles over 3rd, 4th and 5th inter costal space of chest on right onterior side. 3rd, 4th and 5th ribs were found fractured anteriarly on the same side. Right lung was lacerated. Blood clot was present in right thoracic cavity. On dissection of abdomen, abdominal cavity was found filled with blood, liver found ruptured and blackish. Stomach contained undigested food including rice. Small intestine was ecchymosed and contained fluid and gas. All the injuries were ante mortem and caused by hard and blunt substance. Right lung was lacerated. Blood clot was present in right thoracic cavity. On dissection of abdomen, abdominal cavity was found filled with blood, liver found ruptured and blackish. Stomach contained undigested food including rice. Small intestine was ecchymosed and contained fluid and gas. All the injuries were ante mortem and caused by hard and blunt substance. Time since death was 3 to 5 days. He found the injuries as cause of death. On account of finding over genital organ, there was possibility of rape. There is nothing material in the cross-examination of PW-7. 12. PW-8, Arun Kumar Kesari, as noted earlier is the Investigating Officer. He has deposed that the fardbeyan of the informant is in his writing. He has proved the fardbeyan as Exhibit-5, his endorsement thereupon as Exhibit-6 and the formal FIR as Exhibit-7. As noted earlier he has deposed regarding recovery of the dead body and other materials, and preparation of the inquest report (Exhibit-8) by him. He has also proved the seizure list. He has deposed that he recorded the statement of witnesses during investigation and got the statements of PWs-1 and 6 recorded under Section 164 of the Code of Criminal Procedure. He has deposed in cross-examination that he went to the place of occurrence on hearing rumour. He has also deposed that it took two days to search and locate the dead body. He had got the autopsy done by doctor. The statements of PWs-1 and 6 under Section 164 of the Code of Criminal Procedure are also on record and they disclose and corroborate that on hearing the cries of a child from the bushes some of the witnesses and co-villagers had gone in search and the appellant was seen in the bushes and he threatened Chandrama to return otherwise he would shoot. 13. On behalf of the appellant it has been argued that the prosecution case is doubtful because of delay of about 24 hours in reporting the matter to the police. It was further submitted that identification by PW-6 in the light of torch and identification by PW-1 by voice is not believable. It was further argued that there is no direct evidence in respect of charges because there is no eye witness to claim that this appellant had committed rape and then murdered the victim girl. It was further submitted that identification by PW-6 in the light of torch and identification by PW-1 by voice is not believable. It was further argued that there is no direct evidence in respect of charges because there is no eye witness to claim that this appellant had committed rape and then murdered the victim girl. It was also argued that according to PW-1 a boy had claimed to have seen a person in the bushes but he has not been examined and according to the I.O. a Chaukidar was present when the I.O. went to the place of occurrence and effected seizure of clothes but the said Chaukidar has also not been examined. It was also suggested that the informant is guilty of making some exaggerations in court by claiming that he was also with Chandrama and heard sound of crying of child coming from bushes; therefore the informant should be disbelieved. 14. No doubt, there is no eye witness in this case in respect of either rape or murder by the appellant. However, the evidence on record shows that soon after the deceased girl disappeared in the village, cries of a child were heard coming out from bushes at some distance. At least PW-1 and 6 have corroborated the prosecution case that this appellant threatened PW-6 to return or else he would shoot him and the voice of the appellant was identified by PW-1 who was also engaged in search in the near vicinity around the bushes. There is no dispute that witnesses are co-villagers and they are capable of identifying the appellant by face as well as by voice. 15. From the evidence of large number of prosecution witnesses it is clear that in the next morning when some persons of the village went to enquire about the missing girl at the house of the appellant, he was not there and no satisfactory explanation for his absence was given by his father who was also tried with the appellant but has been acquitted of the charges under Section 120B of the IPC. Some confusion has been created by hearsay witness PW-2 but on a careful reading of his evidence it is clear that he is not reliable on the point of his claim that he had also accompanied the co-villagers to the house of the appellant in the next morning. Some confusion has been created by hearsay witness PW-2 but on a careful reading of his evidence it is clear that he is not reliable on the point of his claim that he had also accompanied the co-villagers to the house of the appellant in the next morning. First he replied that on queries the appellant gave a reply but he corrected himself immediately and then claimed that appellants father had given a reply that as they had done so they would receive. 16. From the recovery of the clothes of the deceased and her dead body from places within the village it is further clear that the offence was committed by a resident of that village only. 17. There is no explanation from the defence which could show either that the appellant was not present in the village on the night of the occurrence or that he had not disappeared from the village soon after occurrence. There is no material to show any enmity on account of which the appellant could be falsely implicated in such a heinous crime. Lastly, there is no good reason to disbelieve the prosecution case particularly the evidence of PWs-1 and 6 which clearly show the involvement of the appellant in the crime. These witnesses had disclosed their version to the co-villagers who have corroborated the same as hearsay witnesses and they had also deposed accordingly before the Investigating Officer as well as in their statements recorded under Section 164 of the Code of Criminal Procedure. 18. The submissions advanced on behalf of the defence that a boy mentioned by PW-1 and a Chaukidar mentioned by the I.O, ought to have been examined as witnesses is found to be without any substance. It is not the case of PW-1 that the boy named the appellant. It is only claimed that the boy saw a person in the bushes. So far as Chaukidar is concerned, he was merely accompanying the I.O. during investigation and as disclosed by the I.O. Chaukidars statement was never recorded under Section 161 of the Code of Criminal Procedure. Hence, Chaukidar was not at all a witness of any material facts and not required to be examined by the prosecution. The exaggerations alleged against the informant, in the facts of the case are also of no consequence. Hence, Chaukidar was not at all a witness of any material facts and not required to be examined by the prosecution. The exaggerations alleged against the informant, in the facts of the case are also of no consequence. The witnesses are rustic villagers and the informant in particular had suffered severe trauma on account of a heinous crime against his five years old daughter. Hence, such witnesses cannot be expected to recall each and every incident in detail or to give exactly similar version of the occurrence. The material aspects of the case have been deposed by the witnesses including the informant in a reliable manner. They have not made any false claim of posing to be eye witnesses. Since there is no enmity between the appellant and the informant and other witnesses, there is not reason why they would depose falsely against him. The witnesses are therefore found reliable and trustworthy. The delay of one day in lodging the FIR stands explained by the nature and circumstances of the case. The shocked father of the victim girl was bound to disbelieve the ill-fate of the victim till all hopes of her safe return vanished. 19. In view of the aforesaid discussions and findings I am of the considered opinion that the trial court has rightly found the charges proved against the appellant beyond any reasonable doubts. 20. Coming to the question of sentence, it is noticed that the appellant was aged about 27 years at the time of alleged occurrence and although it is established by circumstantial evidence as discussed above that he was the person involved with the offence, the lack of any direct evidence persuades me not to opt for the extreme penalty of death sentence. The offence was barbaric and against a hapless child but without premeditation and any motive because the prosecution has also denied any previous enmity. There is nothing on record to show that the appellant is incapable of reform infuture. Hence, considering the aforesaid aspects, I am not inclined to award death sentence to the appellant. 21. In the facts of the case, following the Supreme Court judgment in the case of Swami Sharaddanand @ Murafi Manohar Mishra Vs. State of Karnataka, J.T. 2008 (8) SC 27, I direct that the appellant shall not be released from prison till he completes 20 years of actual imprisonment. The reference is answered in negative. 21. In the facts of the case, following the Supreme Court judgment in the case of Swami Sharaddanand @ Murafi Manohar Mishra Vs. State of Karnataka, J.T. 2008 (8) SC 27, I direct that the appellant shall not be released from prison till he completes 20 years of actual imprisonment. The reference is answered in negative. The appeal is dismissed with the aforesaid modification in sentence. SYED MD.MAHFOOZ ALAM, J. 22 I agree.