JUDGMENT C.R. Sarma, J. 1. By this common judgment, we propose to dispose of the Criminal Death Reference No. 1 of 2005 as well as the Criminal Appeal (J) No. 49 of 2005. 2. The Death Reference and the appeal aforesaid have arise out of the judgment and sentence, awarded by the learned Additional Sessions Judge, West Tripura, Agartala, in Sessions Trial No. 186(WT/A) of 2004. The learned Additional Sessions Judge, West Tripura, convicted the appellant Shri Samir Bhowmik (hereinafter called 'the appellant'), for the offence under Sections 302, 376(2)(f)and 201 of the Indian Penal Code (hereinafter referred to as 'I. P. C') and sentenced him to be hanged by neck till death under Section 302, I. P. C., imprisonment for life under Section 376(e)(f), I.P.C. and rigorous imprisonment for 5 years under Section 201, I.P.C. The learned Sessions Judge, made a reference under Section 366 of the Criminal Procedure Code for confirmation of the death sentence aforesaid. 3. In the present case, a seven years old minor girl, who, even did not feel it necessary to wear upper garments, became victim of sexual assault at the hands of the appellant, who was running a photo studio, by taking the said premises on rent from her father and whom she called "Kaku" (uncle). She, innocently, visited the said 'Kaku' on the fateful evening, by wearing only a Jangia (panty) hardly knowing that it was her last visit to 'Kaku's' studio and final journey from this planet. 4. The genesis of the prosecution case is rape and murder of a seven years old little girl 'X' (hereinafter called 'the deceased'). The accused appellant, at the relevant point of time, was a tenant, under the father of the victim girl and he was running a photo Studio named, 'Studio Samir', from the said tenanted premises (Dokar Veti). The tenanted premises, was one of the four parts of a house, one of which was occupied by the father of the deceased, while two other parts were occupied by Shri Mridul Debnath (PW-3) for running his businesses therefrom. As the said tenanted premises were situated near the residence of the parents of the victim, she usually visited the said tenanted premises. As the said tenanted premises were situated near the residence of the parents of the victim, she usually visited the said tenanted premises. On 11-12-2002, the victim, who was wearing only a 'Jangia' (Panty) and a pair of silver bangles (Churi), was found missing from her house at about 3.30 p.m. Accordingly, a missing information was recorded at Bishalgarh Police Station, on 31-12-2002, at about 1 a.m. The dead body of the victim was found in a carton, near the State Co-operative Bank, Charilam Bazar i.e. opposite to the residence of the victim's parents. On receiving the information, police arrived at the spot and, on opening the carton, recovered the dead body on being identified by the victim's parents. The statement of the father of the victim was recorded, which was treated as First Information Report (Ext. 1) and after registering a case under Section 302/201, I.P.C., the investigating agency launched investigation into the matter. The Investigating Officer seized the said carton in which the dead body was found. A piece of blue and white dirty Lungi and the front page and the last page of a newspaper, 'Dainik Sambad', dated 16-9-2002, were also found inside the said carton. Shri Mridul Debnath (PW-3) disclosed that on 11-12-2002, i.e. on the fateful day, in the morning, at about 9 a.m. the appellant had collected the said carton from him, PW-3 being the owner of the shops, named 'Jayanta Varieties' and 'Jayanta Feed Centre', situated adjacent to the photo studio of the appellant. Suspecting his involvement, the appellant was arrested and on entering into photo studio of the appellant, a piece of torn newspaper, which appeared to be a part of the newspaper, found inside the said carton, and a torn piece of blue and white check lungi similar to the piece of lungi, which had been found in the carton containing the dead body, and two numbers of silver bangles (churi) were recovered from the studio of the appellant. The said bangles were identified by the parents of the deceased to be Churis used by the victim. 5. The Officer-in-Charge of the said Police Station Shri Bijoy Kumar Ghosh (P.W. 20) conducted the inquest and prepared an inquest report of the dead body. The dead body was sent to IGM Hospital, Agartala for post-mortem examination. The said bangles were identified by the parents of the deceased to be Churis used by the victim. 5. The Officer-in-Charge of the said Police Station Shri Bijoy Kumar Ghosh (P.W. 20) conducted the inquest and prepared an inquest report of the dead body. The dead body was sent to IGM Hospital, Agartala for post-mortem examination. The I.O. also prepared a sketch map of the place of occurrence and seized all the available incriminating articles, recorded statement of witnesses, took photographs of the place of occurrence along with the carton and the dead body. After receipt of the post-mortem report, it was found that the victim was killed by smothering. The seized pieces of Lungi; were sent to Central Forensic Science Laboratory, Kolkata for forensic examination. Due to transfer of the Investigating Officer, Shri Narayan Kumar Saha, S. I. of Police took up the investigation and he collected the forensic report from Kolkata. From the report issued by Forensic Science Laboratory, it was revealed that both the pieces of Lungis were found to be similar to each other. During investigation, I also surfaced that the deceased, prior to the occurrence was last seen talking with the appellant near the counter of his Studio. The prosecution version is that the appellant has committed rape on the victim 'X' at his studio, killed her by smothering and disposed of her dead body by packing the same with the newspaper and the pieces of Lungi and put the deadbody in the carton. According to the prosecution, the accused made extra-judicial confession admitting his guilt. At the close of the investigation, police submitted charge-sheet against the appellant for offences under Sections 376/201/302, IPC and forwarded him to the Court to stand trial. The offences, being exclusively triable by the Court of Session the case was committed to the Court of Sessions. 6. The learned Sessions Judge framed charges for the offences under Sections 376(2)(f), 302 and201, IPC against the accused appellant to which he pleaded not guilty. 7. To bring home the guilt of the accused, apart from producing some documents, including the post-mortem report, the seizure list and the material exhibits including the seized news paper (torn), the pieces of lungi and the carton, the prosecution examined as many as 22 witnesses. Two Court witnesses were also examined. 7. To bring home the guilt of the accused, apart from producing some documents, including the post-mortem report, the seizure list and the material exhibits including the seized news paper (torn), the pieces of lungi and the carton, the prosecution examined as many as 22 witnesses. Two Court witnesses were also examined. At the close of the evidence for the prosecution, the accused was examined under Section 313, Cr.P.C. The plea of the defence was of denial. 8. The defence side examined the mother of the accused as D.W. 1 in support of the appellant's contention that at the time of the alleged offence, he was a juvenile. 9. Considering the evidence on record, the learned Sessions Judge recorded conviction and the sentences as aforesaid. 10. Being aggrieved by his conviction and the sentences passed against him, the appellant has preferred the appeal challenging the correctness and legality of the impugned judgment and order. 11. We have heard Mr. A. C. Bhowmik, and Mr. D.C. Roy, learned Counsels appearing for the appellant, and Mr. D. Sarkar, learned Public Prosecutor, appearing for the State Respondent. 12. The parents of the victim, who deposed as P.W. 1 and P.W. 2, identified the dead body found in the seized carton, to be the dead body of their said missing daughter. Shri Mridul Debnath who was also having his shop in the said tenanted premises, deposing as P.W. 3, supported the prosecution version regarding the finding of the dead body of the deceased in the said carton on the night of 15-12-2002. P.W. 4, Shri Bishnupada Dey, a neighbourer of the parents of the deceased, who came to know about the fact that his neighbour's daughter was missing, stated that after finding the carton, near the State Co-operative Bank, police was informed and that after arrival of police the parents of the deceased were called and that on opening the carton in their presence, the dead body of the deceased, having marks of injuries, was found. 13. P.W. 5, Dilip Choudhury, who noticed the carton, stated that he, initially, thought that it might contained bomb and as such he informed some people including P.W. 4. He further stated that after arrival of police, the carton was opened wherein the dead body of the deceased was found. P.W. 6, Shri Pijush Das, also supported the evidence of the said P.Ws. He further stated that after arrival of police, the carton was opened wherein the dead body of the deceased was found. P.W. 6, Shri Pijush Das, also supported the evidence of the said P.Ws. regarding finding of the dead body inside the carton. Though the said witnesses were duly cross-examined on behalf of the defence nothing could be elicited to contradict their evidence regarding the fact that the dead body of the victim 'X' was found in the said carton P.W. 1 and P.W. 2, being parents, were the best persons to identify that daughter and they have without any hesitation, identified the same to be the dead body of their daughter 'X'. On behalf of the defence, it has been contended at the time of hearing of the appeal, that considering the size of the carton (17 inches x 9 inches and 14 inches), it was not believable that the dead body could be accommodated in such a small carton. However, in view of the unimpeachable evidence of the said witnesses regarding recovery of the dead body of the deceased, stands well proved that the dead body of the victim 'X' was found in the said carton. 14. The Investigating Officer, who conducted the inquest on the dead body, submitted the inquest report (Ext. 1). The inquest Report, inter alia reads as follows: The deceased is about 2 1/2 cubits tall (complexion) light blackish (Shyamla); health emaciated; hair on the head is black and measures about four inches in length. A small black spot is found above the left eyebrow. The eye-lids are closed and bluish. The fore-part of the tongue is found bitten on the right side. Body is bare. Something like saliva is found to have dried up after coming out from the mouth. Marks of swelling are found on the throat of the deceased. No mark of injury of any kind has been found on the entire person of the deceased. The vagina of the deceased is found blood based/reddish and in an abnormal state. The deceased is wearing yellow under pant ('Jangia') having red borders. The front part of the under pant vis-a-vis the vagina is found wet with something like blood. 15. No mark of injury of any kind has been found on the entire person of the deceased. The vagina of the deceased is found blood based/reddish and in an abnormal state. The deceased is wearing yellow under pant ('Jangia') having red borders. The front part of the under pant vis-a-vis the vagina is found wet with something like blood. 15. From the above inquest report, what transpires is that, though there was apparently no visible external injury, the fact remains that, the mark of swelling on the throat of the deceased and the presence of blood on the private part as well as the underwear of the deceased, suggest use of force. The autopsy in respect of the dead body was conducted by Dr. Ranjit Kr. Das (P.W. 19). The dead body was identified by Constable Swapan Chakravorty (P.W. 8). There being no dispute regarding the identity of the dead body, there is no doubt that the post-mortem was done in respect of the dead body of the said deceased. 16. P.W. 19 (the doctor), in his evidence stated that, on 13-10-2002, he conducted the post-mortem examination and found the following ante-mortem injuries: 1. Subconjunctival petichial haemor-raged with haemotama presenton both eye balls. 2. Contused abrasion 2 cm. x 1 cm. present on the left side of upper part of face 2 cm. later to outer canthus of left eye. 3. Tongue slightly protruded between the from teeth with lacerated injury (bite mark) 2 Nos. measuring 0'5 cm. x 0'5 cm. x 1 cm each present on the right material margin of tongue. 4. Multiple lacerated injury (4 Nos. ) ranging from 0'5 cm x 0'5 cm to 1 cm x 0'5 cm x 1 cm. present on the inner aspect of both upper and lower lips of which 3 Nos. being on the upper lip and rest was on the lower lip. 5. Abreded laceration present around the inner aspect of labia minora and perineal area with complete destruction of hymen and vagina making an opening into the abdominal cavity through which loops of small intestine are protruding out. being on the upper lip and rest was on the lower lip. 5. Abreded laceration present around the inner aspect of labia minora and perineal area with complete destruction of hymen and vagina making an opening into the abdominal cavity through which loops of small intestine are protruding out. P.W. 19 has also deposed that the No. 2 ante-mortem injury could have been caused by blunt object like hand, the No. 3 ante-mortem injury could have been self inflicted as it, normally, happens when there is foreign force on the throat; the ante-mortem injury No. 4 could have occurred on pressure by hand or on being hit by blunt object; and that the ante-mortem injury No. 5 can only be caused by forceful penetration. P.W. 19 has further deposed as under: Brain-Petchial haemorrhage present in the white matter. Chest-Trachea and bronchia-while froth present. The alleged history was that the deceased missing from her house from 11-12-02 and subsequently recovered into a small carton near the State Co-operative Bank of Cahrilam bazaar on 12-12-02 at about 11.30 p.m. 17. According to the Medical Officer, the death was caused due to combined effect of asphyxia caused by smothering and shock as a result of injury No. 5. The medical officer opened that the injury No. 5 was caused by forceful penetration of adult erect penis; that all the injuries were ante-mortem in nature, fresh in duration and sufficient, in ordinary course of nature, to cause death, and that the death, was caused between 54 to 60 hours, subject to variation by a few hours. According to the Medical Officer, the death of a seven years old girl may be caused due to the injury indicated at Sl. No. 5 and also due to injuries indicated at Serial Nos. 1 to 4. He denied the suggestion, put to him in the cross-examination that due to forcible penetration, in respect of a female of 7 years old, there must be injury in the penis. He further opined that the deceased being 7 years old and her vagina being completely damaged, it was not possible to collect swab and that due to decomposition of the dead body no spermatozoa could be detected. According to the Medical Officer, spermatozoa can be detected within 48 hours from a living female body. He also stated that he made no report regarding the presence of spermatozoa. According to the Medical Officer, spermatozoa can be detected within 48 hours from a living female body. He also stated that he made no report regarding the presence of spermatozoa. He, however, opined that there were no post-mortem injuries on the dead body. The medical officer ruled out the possibility of causing the injuries in respect of the vagina of the deceased by use of any blunt weapon like wooden stick, iron rod, etc. According to the medical officer, the height of the dead body was 115 cm and her weight was 20 kg. He denied the suggestions that he prepared the report without examining the dead body and without any basic and that the injury No. 5 was not found by him. Except putting these suggestions, which were specifically denied by the medical officer, the defence could not demolish the medical evidence aforesaid. The defence contention that the injuries were caused during the handling and careless keeping of the dead body after recovery thereof stood negated by the medical evidence on record. Therefore, it stood established that the above mentioned injuries were found on the dead body and there was penetration of the male genital organ into the vagina of the victim causing destruction of the hymen and vagina, making an opening into the abdominal cavity through which loops of small intestine protruded out and that the said injuries caused death of the deceased. 18. In view of the above unshaken medical evidence it is found that the death of the deceased was caused around 54 to 60 hours, with some variation, prior to the postmortem. The post-mortem examination being done on 13-12-2002 at 2-30 p.m. it was quite possible that the offence of rape and killing of the victim was committed on 11-12-2002 around 3.00 p.m. to 3-20 p.m. which was the time, when the victim girl became untraceable. Now, the question is, as to who had committed the said offence. According to the prosecution the appellant was the perpetrator of the said crime. 19. Admittedly, there is no eye-witness to the occurrence. In view of the above, we are required to examine whether the available circumstantial evidence was sufficient to hold the appellant guilty. The law regulating circumstantial evidence has been well settled in catena of cases. 20. According to the prosecution the appellant was the perpetrator of the said crime. 19. Admittedly, there is no eye-witness to the occurrence. In view of the above, we are required to examine whether the available circumstantial evidence was sufficient to hold the appellant guilty. The law regulating circumstantial evidence has been well settled in catena of cases. 20. The learned defence counsel has emphatically argued that in the absence of cogent direct evidence, no circumstantial evidence, pointing to the guilt of the accused, has been established. 21. In order to ascertain the evidentiary value of the circumstantial evidence on record, we deem it appropriate to have a brief appraisal of the evidence on record. 22. P.W. 1, father of the deceased, stated that the dead body of his daughter was recovered from a carton, which was found lying near the Co-operative Bank at Sarilam bazaar and that the Police, while recovering the said body in their presence, found a piece of Lungi and a part of newspaper, namely, 'Dainik Sambad', dated 16-9-2002, from the carton and that the said items were used for covering the dead body, which was kept inside the said carton. He also identified the piece of the newspaper, namely, 'Dainik Sambad', which was found in the carton containing the dead body of his daughter, and the said seized pair of bangles as bangles used by his daughter and exhibited the piece of news paper as Ext. 3 and the pairs of Churis (bangles) as M.O. No. 1. The carton was exhibited as M.O. No. 2. The piece of Lungi was exhibited as M.O. No. 4. In his cross-examination, he, however, stated that the churis of his daughter was not found along with the dead body at the time of recovery of the dead body. He denied the suggestion that the articles, i.e. the news paper and the Lungi, were not found with the dead body. From the evidence of the witness, it is, however, found that the P.W. 3, Mr. Mridul Debnath had two different business establishments, i.e. a stationery shop and a shop for supplying of chickens and medicines. This witness was duly cross-examined on behalf of the defence, but no contradiction could be proved to discredit his evidence. From the evidence of the witness, it is, however, found that the P.W. 3, Mr. Mridul Debnath had two different business establishments, i.e. a stationery shop and a shop for supplying of chickens and medicines. This witness was duly cross-examined on behalf of the defence, but no contradiction could be proved to discredit his evidence. Therefore, from the evidence of P.W. 1 it is found that the churis (bangles), which were used by the deceased, were not found available at the time of recovery of the dead body and that the piece of newspaper, namely, 'Dainik Sambad', and another piece of Lungi were found along with the dead body. 23. P.W. 2, i.e. the mother of the victim, supporting evidence of P.W. 1, regarding recovery of the dead body of their daughter, stated that she could identify the pairs of churis recovered from the studio of the appellant and that the said churis, made of silver, were used by her daughter for the last two years prior to her death. The learned Sessions Judge had recorded that while identifying the churis, this witness burst into tears. This was quite natural as the said churis had reminded her love and affection of her deceased minor daughter. She stated that her daughter, sometimes, used to pay visit to the nearby shops, which they did not mind and that the deceased, who used to visit the studio of the appellant, also called him 'Kaku' (uncle). This witness, however, stated that she was told by Mridul Debnath (P.W. 3) that the carton, wherein the dead body was found, was taken from him, in the morning of 11-12-02, by the appellant. She further stated that Mridul told her that, in presence of Mridul and Ors. the appellant had admitted that he had committed rape on said girl and throttled her, while she raised alarm, that the appellant had covered the said dead body with the Lungi and news paper and put it into the carton, which was kept near State Co-operative Bank, that the pairs of Churis were recovered from the drawer of the table inside the studio of the accused and that similar piece of Lungi and the middle portion of the newspaper, which were used for covering the dead body, were also recovered from the studio of the appellant. Her evidence regarding recovery of the churis, the pieces of lungi and the news paper and the alleged extra-judicial confession of the appellant were all hearsay evidence. Though this witness was duly cross-examined on behalf of the defence, nothing could be established to demolish her evidence regarding recovery of the dead body of her daughter being covered by a newspaper and a piece of lungi in a canton and the identity of the bangles allegedly recovered from the studio of the appellant. From her evidence, what surfaces beyond doubt is that the seized bangles, which were recovered from the drawer of the appellant, belonged to her daughter. 24. Mr. Mridul Debnath, deposing as P.W. 3, while supporting the evidence of P.W. 1 and 2, regarding recovery of the dead body, in a carton near the State Co-operative Bank, stated that the said carton was taken from him in the morning of 11-12-2002, by the appellant. He also stated that the Police, while conducting search in the studio of the appellant, recovered the pairs of silver bangles, which belonged to the victim girl, the other part of the said newspaper and similar piece of Lungi. He further stated that police compared the said pieces of news paper and the Lungi with the pieces of newspaper and the Lungi found in the carton along with the dead body and it was found that the said pieces matched each other. According to this witness, on being questioned by the Police, the appellant broke down and confessed that at about 3.00 to 3.30 p.m. he attempted to rape the victim and as she had raised alarm, he killed her by strangulating tier and kept the dead body in his dark room till it was disposed of by putting the same in the carton. He exhibited the piece of paper as Ext. M.O. No. 3 and the piece of Lungi as Ext. M.O. No. 4. 25. From the evidence of the P.W. 2, i.e. the mother of the deceased, it has been established that the deceased was using the said seized bangles at the time, when she disappeared, and according to the P.W. 1, i.e. the father of the victim, the said bangles were not available with the dead body. M.O. No. 4. 25. From the evidence of the P.W. 2, i.e. the mother of the deceased, it has been established that the deceased was using the said seized bangles at the time, when she disappeared, and according to the P.W. 1, i.e. the father of the victim, the said bangles were not available with the dead body. This implies that the bangles were removed, during or after committing the alleged offence i.e. before disposing the dead body by putting it in the carton. From the evidence of P.W. 3, who could identify the bangles to be the bangles of the deceased, it is found that the said pair of bangles were recovered from the studio of the appellant. Hence, the recovery of bangles of the deceased (which were with the deceased at the time when she became untraceable) from the studio in possession of the appellant is a strong incriminating evidence indicating involvement of the appellant. That apart, according to the P.W. 3, who used to deal with the business of hatchling and chick feeds, the carton, in which the dead body was found, was taken from him by the accused, in the morning of the day, when the deceased disappeared. This witness was also cross-examined on behalf of the defence, but nothing could be brought out to disbelieve his evidence. He denied the suggestion that he had falsely implicated the appellant with a view to saving the actual culprit. There is nothing on record to find that P.W. 3 had any quarrel/dispute or reasons to take revenge against the appellant and thus, there is nothing to believe that P.W. 3 had any reason to falsely implicate the appellant. Therefore, it is consequently proved that the said carton, which was used for packing the dead body, had come in possession of the appellant prior to the occurrence. 26. P.W. 4, Bishnupada Dey, stated that the dead body was found in a carton along with a piece of lungi and a newspaper. He further stated that the carton, wherein the dead body was found, was made of pitch board. He suspected that it belonged to Mridul, who owned a shop of hen feeds, because the said carton contained picture of hens. He further stated that the carton, wherein the dead body was found, was made of pitch board. He suspected that it belonged to Mridul, who owned a shop of hen feeds, because the said carton contained picture of hens. Mridul (P.W. 3), who was the only dealer of said feed in the market, identified the same to be the carton taken by the appellant in the morning of 11-12-02. This witness has further deposed, on being asked, the appellant had confessed that he had taken the carton from P.W. 3 (Mridul) and that, on 11-12-02 at about 3.00 p.m. on finding the deceased in front of his studio, he offered her a chocolate and, thus, allured her inside the dark room of the studio, wherein the tried to commit rape on her, but as she raised alarm, he caught hold of her throat to resist her from crying and, thus, committed the murder. According to this witness, the appellant further admitted that he had kept the dead body under his table by covering the same with a piece of black coloured cloth and that he disposed of the dead body by putting the same in the carton. This witness also stated that after opening the studio, bad smell was felt and the appellant produced a piece of lungi from a plastic contained and a pair of bangles (churis), belonging to the deceased, from the drawer of a show-case-cum-table and a portion of the newspaper. The said articles, according to this witness, were seized by the police in their presence. He exhibited the carton as material exhibit, M.O. No. 2 the rope (chutli) used for fastening the packet as material exhibit M.O. No. 9; the panty of the deceased as material Ext. M.O. No. 8, the remaining portion of the newspaper, which was recovered from the studio, as material Ext. No. 5, the part of the newspaper, which was recovered along with the dead body in the carton, as material Ext. No. 3; the large (other part) portion of the Lungi, which was found with the dead body, as material Ext. No. 4, and the small portion of the Lungi, recovered from the studio of the accused as material Ext. No. 7. He also exhibited the churis (bangles), recovered from the studio of the appellant as M.O. No. 1 (series). No. 3; the large (other part) portion of the Lungi, which was found with the dead body, as material Ext. No. 4, and the small portion of the Lungi, recovered from the studio of the accused as material Ext. No. 7. He also exhibited the churis (bangles), recovered from the studio of the appellant as M.O. No. 1 (series). He further stated that Samir, who was known to him, since his childhood, used to call him as 'Kaku' and that he had good relation with him. Though this witness was cross-examined at length, nothing could be elicited to render his evidence unbelievable. He denied the suggestions put up to him that the appellant was falsely implicated in this case and that the appellant did not produce any incriminating materials from the studio. The defence failed to even probablise that this witness had any reason to falsely implicate the appellant. There is sufficient corroboration in the evidence of P.W. 4 and P.W. 6 to believe that the pieces of torn lungi and newspaper, found with the dead body in the carton, were the parts of the same lungi and newspaper recovered from the studio of the appellant along with the pair of bangles used by the deceased prior to her missing. 27. P.W. 5, Sri Dilip Choudhury, who had a shop in the said market, was the first person to notice the packet (carton) near the Bank. He suspected it to have contained a bomb and accordingly informed some people and Shri Dilip Roy informed the police at Bishalgarh Outpost over phone and, on being so informed, police arrived there. Supporting the evidence of P.W. 4 and P.W. 5, this witness also stated that on opening the carton, the dead body of the said deceased was found wrapped with a Lungi in the carton. He even stated that the manner in which the dead body was folded to put the same in the carton. In tune with the P.W. 4, he state that, immediately, after noticing the carton, he thought that the carton belonged to Mridul (P.W. 3), as he used to deal with feeds of hen. Accordingly, on being called, Mridul appeared and disclosed that the carton was taken from him by the appellant. On being so informed, after the arrival of the Police, the appellant was brought and his studio was opened. Accordingly, on being called, Mridul appeared and disclosed that the carton was taken from him by the appellant. On being so informed, after the arrival of the Police, the appellant was brought and his studio was opened. This witness further stated that in their presence, the appellant had brought out the pair of bangle, used by the deceased, piece of lungi one sheet of newspaper in torn condition. He also stated that the accused had confessed that he wanted to commit rape on the victim inside his studio, but as she cried he caught hold of her mouth and killed her. This witness also stated that he knew Samir from his childhood and that his relation with Samir was not bad. He had exhibited the carton as Ext. No. 2. He admitted that he did not specifically state before the police about the articles recovered from the studio. He also admitted before the Police regarding load shedding etc. This witness was duly cross-examined, but no material contradiction could be established to discredit his evidence. From his evidence, sufficient corroboration is found in favour of the prosecution to believe that a pair of bangles used by the deceased and one piece of Lungi and one piece of newspaper, which appeared to be the part/portion of the Lungi and the newspaper found with the dead body, were recovered from the studio of the appellant. 28. P.W. 6, Mr. Pijush Das, who also owned a shop in the said market, lent corroboration to the evidence of P.W. 4 and P.W. 5, inasmuch, P.W. 6, has stated about the recovery of the dead body in the carton and the confession made by the accused appellant. He also stated that P.W. 3 (Mridul) identified the carton to be the one taken from him by the appellant. This witness further stated that he had good relation with the appellant since childhood. From the cross-examination of this witness, nothing could be elicited to discredit his evidence regarding recovery of the dead body from the carton P.W. 7, namely, Shri Madhab Ch. Dutta, was tendered for cross-examination, but the defence declined to cross-examine him P.W. 8, Sri Sachindra Debnath, was a school teacher. From the cross-examination of this witness, nothing could be elicited to discredit his evidence regarding recovery of the dead body from the carton P.W. 7, namely, Shri Madhab Ch. Dutta, was tendered for cross-examination, but the defence declined to cross-examine him P.W. 8, Sri Sachindra Debnath, was a school teacher. In his deposition, P.W. 8 stated that he was a subscriber of the newspaper 'Dainik Sambad' and that as his house was situated at a distance of half-a-kilometer from the Charilam Bazar, he asked the hawker to deliver his copy of the newspaper in the studio of the appellant, whose house was adjacent to the house of P.W. 9, mentioning his name on the top of the newspaper. He further stated that the newspaper, dated 16-9-02, was not delivered to him and that he was informed by police that the newspaper, dated 16-9-02, was recovered from the shop of the appellant. He also stated that he usually sold the newspapers after 4/5 months and that as he did not get the paper regularly in the month of September, he instructed the hawker to deliver the paper to him directly from the month of October. He clearly stated that the appellant did not deliver him the paper, dated 16-9-2002. This witness identified the writing of Ranjit Deb Nath on the newspaper dated 16-9-02. He has exhibited the same as M.O. No. 6 in his cross-examination, he stated that he did not enquire from Samir regarding nondelivery of the news paper. 'Dainik Sambad' and that he did not lodge any complaint against the hawker. He denied the suggestion that he was not a subscriber of the said newspaper and that the appellant did not receive the newspaper on his behalf. Failure of the P.W. 8 to lodge complaint regarding non-receipt of the newspaper, dated 16-9-02 cannot be sufficient to reject the evidence of the P.W. 8. Nothing could be elicited from the cross-examination of this witness so as to make one disbelieve his evidence that he was the subscriber of the 'Dainik Sambad' and that he had asked the hawker to deliver his newspaper in the studio of the appellant. 29. Supporting the evidence of P.W. 8, Mr. Nothing could be elicited from the cross-examination of this witness so as to make one disbelieve his evidence that he was the subscriber of the 'Dainik Sambad' and that he had asked the hawker to deliver his newspaper in the studio of the appellant. 29. Supporting the evidence of P.W. 8, Mr. Ranjit Kumar Debnath (P.W. 9), who was the hawker, has stated that the P.W. 8 was a subscriber of the newspaper 'Dainik Sambad' and that he used to deliver the P.W. 8's copy of the 'newspaper' in the 'Studio Samir' (i.e. the appellant) mentioning the name of the said subscriber on the upper portion of the newspaper. The P.W. 8 clearly stated that he instructed the hawker to deliver the newspaper from the month of October directly to him. The hawker, while deposing as P.W. 9, stated that after an incident, Shri Sachindra Debnath (P.W. 8) asked him to supply the paper through 'Studio Samir' from the month of October, 2002 on the ground that he was not getting paper regularly. He also stated that he delivered the paper for almost 7/8 years and that though the P.W. 8, sometimes, orally complained regarding non-receipt of the newspaper, he did not make any written; complaint regarding non-delivery of newspaper in the month of September. This statement of the P.W. 9 implies, clearly, that the newspaper was supplied to P.W. 8, through, the studio of the appellant in the month of September also. However, a careful and cumulative reading of the evidence of the P.W. 8 and P.W. 9 indicates that the P.W. 9 delivered the copy of the newspaper, subscribed by the P.W. 8, at the studio of the appellant. There is sufficient corroboration in the evidence of P.W. 8 and P.W. 9 to believe that the name of Sachindra Deb Nath was writ-ten in the newspaper delivered at the studio of the appellant It has also been found that a portion of the said newspaper was found with the dead body. From the evidence of P.Ws. 3, 4, 5 and 6 it is found that a part of the newspaper, dated 11-9-02, wherein the name of the P.W. 8 was written, as its subscriber, was found in the studio of the appellant and the remaining part of the same paper was found in the carton containing the dead body. From the evidence of P.Ws. 3, 4, 5 and 6 it is found that a part of the newspaper, dated 11-9-02, wherein the name of the P.W. 8 was written, as its subscriber, was found in the studio of the appellant and the remaining part of the same paper was found in the carton containing the dead body. P.W. 9, i.e. the Hawker, testified that he wrote the name of the P.W. 8 on the said newspaper as Ext. No. 6. P.W. 9, further stated that the appellant was not a subscriber and that he used to write the name of the subscribers on their respective copies of the papers. Ext. No. 6, which is the torn portion of a newspaper and bearing the name of P.W. 8, indicates that the same was a copy of the paper delivered in the name of the P.W. 8 and that the said piece of paper was found in the studio of the appellant. From the evidence on record, more particularly, the evidence of P.W. 4, it is found that the upper portion of the newspaper, found with the dead body, was slightly torn. In view of the above evidence on record, it is found that the newspaper, dated 16-9-02, subscribed by the P.W. 8, was available in the studio of the appellant and a part of the same was found in the carton containing the dead body. In the attending circumstances, it stands well proved that the part of the newspaper, found in the studio of the appellant, and the parts of the same, found with the dead body of the deceased, were the parts of the same newspaper, dated 16-9-02, which was in possession of the appellant, prior to its use for packing the dead body of the deceased. This piece of circumstantial evidence is a scenario incriminating piece of evidence against the accused. 30. Mr. Babul Saha, deposing as P.W. 10, stated that he had a sweet meat shop at Charilam Bazar, opposite to the house of P.W. 1 and intervened by Agartala-Udaipur Road and the deceased who was missing from 11-12-02 from 3/3-30 p.m. was known to him and that came to know that her dead body was recovered, on 13-12-02, from inside a carton. He further stated that he last saw the deceased, at about 3/3.30 p.m. on 11-12-02, talking with the appellant, just in front of latter's studio. As stated by P.W. 10, his sweet meat shop being situated at a distance of 40/50 cubits (about 60 to 75 feet), the appellant's studio was visible from his shop. He denied the suggestions that at the relevant time, he was not present at his shop and that he had falsely stated that 'X' was seen talking to the appellant. He further denied the suggestions that the studio of the appellant was not visible from his shop and that the appellant, usually, opened the studio in the afternoon at 5 p.m. He admitted that the breadth of the National Highway, including its foot path, would be about 50 meters and that vehicles used to move through this road after certain intervals. He denied the suggestion that he did not see the appellant talking to the deceased. Though this witness was cross-examined, no contradictions could be established to disbelieve his categorical statement that he saw the appellant talking with the deceased at about 3/3-30 p.m. The distance between the shop of this witness and studio of the appellant does not belie his said assertions. 31. P.W. 11, Mr. Sajal Bhattacharjee, who also had a shop at Charilam bazar, stated that his shop was just opposite to the studio of the appellant, the distance between the two establishments being about 60 feet and that one studio of the appellant was visible from his shop. He, lending support to the evidence of P.W. 10, further stated on 11-12-2002, at about 3 p.m., while stepping on the road, after closing his shop, for proceedings towards his home, he could notice the appellant talking with the deceased in the counter of latter's studio and as the deceased was in the habit of visiting the shops, he cannot see any reason to divulge the same to others. He further stated that on being interrogated by police, after recovery of the dead body he told the police that he had seen the deceased in the counter of the, shop of the appellant. In his cross-examination, he stated that he did not tell others regarding noticing the deceased with the appellant. He further stated that on being interrogated by police, after recovery of the dead body he told the police that he had seen the deceased in the counter of the, shop of the appellant. In his cross-examination, he stated that he did not tell others regarding noticing the deceased with the appellant. He denied the suggestion that he did not see the deceased talking with the appellant and that the appellant was falsely implicated in this case. This witness was cross-examined on behalf of the defence, but nothing could be elicited to contradict his evidence. Admittedly, after coming to know about the disappearance of the deceased, during the search operation and, immediately after recovery of the dead body, this witness did not disclose to anybody that he had seen the deceased talking with the appellant in the latter's studio counter. The learned Counsel, appearing for the appellant, submitted that as the said witness did not disclose such a vital fact at the earliest opportunity i.e. immediately after coming to know about the fact that the deceased was missing or at the time of recovery of the dead body, he ought not to have been believed. In this regard, it may be pointed out that, this witness explained that, as the deceased was in the habit of visiting the nearby shops, he did not find any necessity to disclose that he had seen the deceased in the studio of the appellant. In our considered opinion, in view of the sufficient corroboration of the evidence of P.W. 10 and P.W. 11, this explanation appears to be reasonable. That apart, there is nothing on record to hold that the said two witnesses had any reason to falsely implicate the appellant. Therefore, their evidence, as stated above, cannot be suspected. 32. In the case of Ram Reddy Rajesh-Khanna v. State of Andhra Pradesh (Crl Appeal No. 997 of 2005, decided on 24-3-2006 (reported in AIR 2006 SC 1656 ), the Hon'ble Apex Court referring to the following observations, made in the case of State of U. P. v. Satish, reported in AIR 2005 SC 1000 : (2005 Cri LJ 1428, observed. In the case of Ram Reddy Rajesh-Khanna v. State of Andhra Pradesh (Crl Appeal No. 997 of 2005, decided on 24-3-2006 (reported in AIR 2006 SC 1656 ), the Hon'ble Apex Court referring to the following observations, made in the case of State of U. P. v. Satish, reported in AIR 2005 SC 1000 : (2005 Cri LJ 1428, observed. "The last seen theory will play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased, who was last seen with the accused, when there is long gap and possibility of other persons in between exists, in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.W. 3 and P.W. 5, in addition to the evidence of P.W. 2." 33. In view of the above, what can be safely concluded is that evidence, as regards the deceased and the appellant having been last seen together can be accepted if during the intervening period commencing from the point, when the deceased was seen alive, and the point of time of his/her death, except the accused, her meeting with any other person can be conclusively ruled out. In the case at hand, the unimpeachable evidence of P.W. 10 and P.W. 11, when considered in the light of the medical evidence regarding the approximate time of death and the time of the disappearance of the deceased, leads one to safely conclude that no other person had the opportunity of meeting the deceased after she was last seen with the appellant. 34. As discussed above, we find sufficient corroboration in the evidence of P.W. 10 and P.W. 11 to believe that the deceased was last seen with the appellant, in the counter of his studio at about 3 p.m. immediately, before she went missing. 34. As discussed above, we find sufficient corroboration in the evidence of P.W. 10 and P.W. 11 to believe that the deceased was last seen with the appellant, in the counter of his studio at about 3 p.m. immediately, before she went missing. Hence, she being last seen with the appellant and thereafter on the night of 13-12-02 her dead body having been found in a carton, which was collected by the appellant from the P.W. 3 in the morning hours of the day, when the said deceased disappeared, there is sufficient reason to believe that the appellant was the author of the crime. 35. Furthermore, it has also been found from the evidence on record that the other remaining parts of the Lungi and the newspaper, parts of which were found with the dead body, was also found in the studio of the appellant, during the search, made in presence of the witnesses, by the police. 36. P.W. 5, Dilip Choudhury stated that, immediately after noticing the carton, he informed Shri Bishnupada Dey (P.W. 4), who, in turn, informed Shri Dilip Roy telephonically. He also stated that Bishnupada Dey and Shri Dilip Roy informed the police and on arrival of the police, the said carton was opened in their presence. Supporting the evidence of P.W. 5, Shri Bishnupada Dey (P.W. 4) stated that he was informed by P.W. 5 about the carton and that after ascertaining that the same was not opened by anybody, he informed the police and that after the arrival of the police, the carton was opened. Shri Dilip Roy deposing as P.W. 17, in tune with the P.W. 4 and P.W. 5 stated that they had asked the people, who had gathered there, not to open the box and that the P.W. 4 had informed the police. According to this witness also, the carton was opened after the arrival of the police. He further stated that after opening the carton, the dead body of the deceased along with a piece of lungi and a piece of newspaper was found. According to this witness police brought the appellant and they along with the appellant entered the appellant's studio, wherein the appellant handed over to the police a piece of lungi, a portion of 'Dainik Sambad' newspaper and a pair of 'Bala' (bangles). He asserted that the said bangles belonged to the deceased. According to this witness police brought the appellant and they along with the appellant entered the appellant's studio, wherein the appellant handed over to the police a piece of lungi, a portion of 'Dainik Sambad' newspaper and a pair of 'Bala' (bangles). He asserted that the said bangles belonged to the deceased. According to this witness, police seized the carton, the rope used for tying the carton, a piece of lungi the portion of the newspaper (Dainik Sambad) dated 16-9-02 which were found along with the dead body. He further stated that police also seized the piece of lungi, the other part of the newspaper and a pair of 'Bala' (bangles) produced by the appellant; at his studio, in their presence. This witness stated that appellant was known to him since his childhood old and that he had friendly relation with the appellant and that the appellant had confessed that he has committed rape on the deceased, throttled her to death and that he disposed of the dead body by putting the same in the carton, procured from the shop of the P.W. 3. Except putting some suggestions, which were specifically denied by the P.W. 17, no material contradiction could be established to demolish his evidence. 37. From the evidence of P.W. 17, it appears that P.W. 3 was the supporter of the BJP and that the P.W. 4, who became the supporter of CPI(M), was, initially, a member of the Trinamul Congress. This witness denied that after 1980, he had become supporters of CPI(M) and that he had falsely implicated the appellant. There is no substantive evidence to believe that the P.W. 17, who claims to have friendly relation with the appellant, had any reason or grudge to falsely implicate the appellant in this case. Even if, some of the witnesses and the appellant were supporters of different political parties, there is nothing on record to hold that there was any political rivalry, sufficient enough to believe that the appellant was falsely implicated in this case. 38. A close scrutiny of the evidence on record clearly shows that the evidence given by P.Ws. 3, 4, 5, 6 and 17 is convincing and corroborative in nature. We, therefore, see no reason to disbelieve their evidence. 39. 38. A close scrutiny of the evidence on record clearly shows that the evidence given by P.Ws. 3, 4, 5, 6 and 17 is convincing and corroborative in nature. We, therefore, see no reason to disbelieve their evidence. 39. We may, now, point out that the seized pieces of clothes were sent to the Central Forensic Science Laboratory, Kolkata (in short, C.F.S.L.) for examination. Shri B. Manna, deposing as P.W. 14, stated that he had acquired required training in forensic science, that he served in the Central Forensic Science Laboratory, Kolkata for 37 years and that he submitted the report, i.e. Ext. No. 8. As per the Ext. 8, which was admitted/exhibited without any objection, two pieces of dirty and torn clothes (stated to be Lungi), being marked as 'A' and 'B', were examined and found to be similar to each other. The reasons for arriving at such a conclusion were given in Ext. 11. There is nothing on record to refute these said findings. From Ext. No. 8 and Ext. 9 (a forwarding letter), it appears that the said pieces of clothes were sent from the Court of the Chief Judicial Magistrate. West Tripura, Agartala in connection with Case No. 101/02 of Bishalgarh Police Station Under Section 302/201, IPC. 40. Mrs. G. Bhattacharjee, who worked as Junior Scientific Officer for about 38 years, in the C.F.S.L. deposing as P.W. 15, stated that she made microscopic and chemical examination of the exhibited pieces of cloth. She proved her report as Ext. 10 and the forwarding letter as Ext. 11. From the said exhibits, it appears that upon chemical examination of the two pieces of cloth, marked as Ext. A and Ext. B and the morphological and chemical characteristics of the said exhibits were found to be connected with each other. According to Ext. 11, Ext. A, marked as 23/04', contained a small piece of green white check cloth. There is nothing on record to challenge the said findings. Both the witnesses, namely, P.W. 14 and P.W. 15, have asserted that they had acquired training, sufficient experience and expertise in forensic science and denied the suggestion that they submitted the report without examination. 41. Mr. Bimal Ch. Purakayait, a Junior Scientific Officer, deposing as P.W. 16, stated that he acquired 30 years of experience, and that he submitted the report after examining the clothes, i.e., the green white check cloth. 41. Mr. Bimal Ch. Purakayait, a Junior Scientific Officer, deposing as P.W. 16, stated that he acquired 30 years of experience, and that he submitted the report after examining the clothes, i.e., the green white check cloth. He proved the report as Ext. 12. Ex. 12, which was admitted without objection, indicates that two pieces of green white check clothes, marked as 23/04' and 23/04B', in connection with Bishalgarh Police Station Case No. 101/02 Under Section 302/201, IPC, were examined and the dye used in the said exhibits were found to be similar. 42. In view of the above evidence given by the forensic experts, the weaving pattern, design, thread counts, nature of fibers, sense of twist, number of threads per unit length, dye used in printing the clothes, morphological and chemical characteristics were found to be similar in respect of the said two pieces of check clothes. 43. P.W. 18, Shri Swapan Chakraborty, a Constable, who accompanied and identified the dead body for autopsy, proved the dead body challan. He denied the suggestions that the dead body was lying uncared and unguarded and that he did not identify the same. Except the said suggestions, which were categorically denied, nothing could be brought out to discredit his evidence. Hence, it stood established that the dead body was carried and identified by the P.W. 18 at the time of post-mortem examination aforesaid. 44. The P.W. Nos. 12, 13 and 20 were the Investigating Officers at different points of time. P.W. 13, in fact, played no role. P.W. 12 was the Officer-in-Charge of the Bishalgarh Police Station at that time. On receipt of telephonic information from Shri Bishnupada Dey (P.W. 4) regarding finding of a packet near the Co-operative Bank, he along with the P.W. 20 and other police personnel proceeded to the place of occurrence. After recovery of the dead body and the incriminating articles found in the said packet, the Officer-in-Charge (P.W 12) endorsed the investigation to the P.W. 20. From the said evidence of P.Ws. 12 and 20, it is found that prior to the receipt of the written FIR (Ext. 1), a (telephonic information was received from the P.W. 4. P.W. 4 also supported the said evidence regarding telephonic information lodged with the police. The said information, as stated by the P.W. 12 and P.W. 20, was entered as G. D. Entry No. 531. 12 and 20, it is found that prior to the receipt of the written FIR (Ext. 1), a (telephonic information was received from the P.W. 4. P.W. 4 also supported the said evidence regarding telephonic information lodged with the police. The said information, as stated by the P.W. 12 and P.W. 20, was entered as G. D. Entry No. 531. P.W. 20 specifically stated that the said entry was made on the night of 12-12-02 after receipt of the information at about 11.45 p.m. He exhibited the entry as Ext. 18. The police moved to the place, where the said packet was found and, then, launched investigation on the basis of the said GD Entry. According to P.W. 12, after recovery of the dead body, the statement of P.W. 1 was recorded and the same was treated as FIR. FIR is an instrument which moves the investigating machinery into motion. As the police initiated action on the basis of the telephonic information recorded as GDE No. 531, the said Ext. 1 lost its relevance as FIR and as such the telephonic information was the FIR i.e. the "First Information Report". 45. P.W. 20, who was the Investigating Officer, supporting the evidence of P.W. 4, stated that on receipt of information from one Bishnupada Day (P.W. 4), regarding finding of a carton near the State Co-operative Bank at Charilam Bazar, he entered the information as G.D. Entry No. 531, dated 12-12-2002 (Ext. 18) and proceeded for the place of occurrence. Thereafter, in presence of the witnesses and the parents of the deceased, he opened the carton and found the dead body of the deceased. He prepared the inquest report (Ext. 19), as discussed earlier. He recovered a part of the newspaper namely, 'Dainik Sambad', dated 16-9-2002, the upper portion of which was torn, a piece of blue and white old lungi, which were used for covering the dead body, and three pieces of ropes used for tying the carton. The I.O. seized the said articles vide Seizure List (Ext. 20). He exhibited the carton, the pieces of newspaper and Lungi, seized by him, as Ext. Nos. M.O.2, M.O.3, and M.O.4 respectively. He further stated that the appellant led them to his studio and produced the inner pages of the 'Dainik Sambad', a small piece of Lungi and a pair of bangles, which were seized by him vide Ext. 21. 20). He exhibited the carton, the pieces of newspaper and Lungi, seized by him, as Ext. Nos. M.O.2, M.O.3, and M.O.4 respectively. He further stated that the appellant led them to his studio and produced the inner pages of the 'Dainik Sambad', a small piece of Lungi and a pair of bangles, which were seized by him vide Ext. 21. The said pieces of the Lungi, the newspaper and the bangles found in the studio of the appellant were exhibited as M.O. No. 7, M.O. No. 6 and Ext. 1 series respectively. He stated that the witnesses, present there, had identified the bangles to be the bangles used by the deceased. According to the I.O. the appellant confessed, in their presence, that he had committed the offence. According to the I.O. as the appellant had confessed his guilt, he did not feel it necessary to undertake the potentiality test of the accused. The I.O. denied the suggestion that the case was falsely fabricated against the accused. He also stated that at the time of seizure of the carton, he obtained signatures of the witnesses by putting a label. He identified the seized carton with the label (D) thereof. The P.Ws. 3, 4, 5 and 17 have also identified the carton in which the dead body was found. Hence, in the absence of any evidence to refute the evidence of the said witness, it becomes clear that the dead body was found in the said cartons, which was procured by the appellant from the P.W. 3. Except putting certain suggestions, which were categorically denied by the I.O., no contradiction could be established to negate his evidence regarding recovery of the dead body and seizure of the above incriminating materials. 46. Supporting the evidence of the I.O., P.W. 21, a photographer, deposed that he had taken photographs of the carton, the dead body and the 'Studio Samir'. He exhibited the photographs (seven) as Ext. M.O. No. 11 (series). 47. According to P.W. 22, i.e., the Officer-in-Charge of the Bishalgarh Police Station, on receipt of the CFSL report submitted the charge-sheet under Section 376/302/201, IPC. At the close of the evidence of the prosecution, the accused appellant was examined under Section 313, Cr.P.C. He denied the allegations. He exhibited the photographs (seven) as Ext. M.O. No. 11 (series). 47. According to P.W. 22, i.e., the Officer-in-Charge of the Bishalgarh Police Station, on receipt of the CFSL report submitted the charge-sheet under Section 376/302/201, IPC. At the close of the evidence of the prosecution, the accused appellant was examined under Section 313, Cr.P.C. He denied the allegations. The mother of the appellant, who got herself examined as D.W. 1, stated that the appellant Was born to her the year 1985 and, thus, attempted to substantiate that the accused was a juvenile at the time of committing the offence. But no birth certificate or any authentic certificate of age of the appellant was proved to establish that at the relevant time, the appellant was a juvenile. The Headmaster of the School, where the appellant had studied and the Medical Officer who had examined the appellant to ascertain his age, were examined as Court Witness No. 1 and 2 respectively. From the evidence of C.W. 1, who deposed, relying on the school admission register (Ext. P. 1) and Transfer Certificate (Ext P.2), it transpires that the date of birth of the appellant was 20-2-1982. Though this witness was cross-examined, no contradiction could be established to disprove his evidence C.W. 2, who was the Head of the Department of Radiology, G.B. Hospital has stated that he examined multiple bones of the appellant and denied that age of the appellant, on the date of examination was between 22 to 24 years. He exhibited the report as Ext. P.3 and the X-ray plates as Ext. 'P/M. O/1'. He denied the suggestion that the age of the appellant was 19 years 2 months on the date of examination. As per Ext. P.3, the examination was done on 31-5-2005. The occurrence took place on 11-12-02 and as such the age of the appellant was above 20 years. In view of the said medical evidence as well as the school admission register, we find no force in the uncorroborated evidence of D.W. 1 to believe that the appellant was a juvenile at the time of occurrence. In the light of the above evidence, the learned Sessions Judge rightly refused to accept the plea that the accused was a juvenile. 48. From the above evidence on record, as discussed above there being no eye-witness, the prosecution case solely rests on circumstantial evidence. In the light of the above evidence, the learned Sessions Judge rightly refused to accept the plea that the accused was a juvenile. 48. From the above evidence on record, as discussed above there being no eye-witness, the prosecution case solely rests on circumstantial evidence. The law regarding circumstantial evidence has been well settled by the Hon'ble Apex Court in a catena of decisions as follows: In the case of Sarad Birdhichand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 ), the Supreme Court, while discussing a few decisions on the nature, character and essential proof required in a criminal case, which rests on circumstantial evidence and also referring to the most fundamental and basic decision of the Apex Court in Hanumant v. State of Madhya Pradesh ( 1952 SCR 1091 ): ( AIR 1952 SC 343 : 1953 Cri LJ 129), laid down the following golden principles, which were termed as Panchashil: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : AIR 1973 SC 2622 : 1973 Cri LJ 1783 where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. ii) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. iii) The circumstances should be of a conclusive nature and tendency. iv) They should exclude every possible, hypothesis except the one to be proved and. v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 49. iv) They should exclude every possible, hypothesis except the one to be proved and. v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 49. The above circumstances, as revealed from the evidence on records, must form a complete chain pointing to the guilt of the accused to the exclusion of any other hypothesis. Keeping in mind the said principles of law, laid down by the Apex Court, we deem it appropriate to examine if the circumstances emerging from the evidence on record constitute a complete chain leading to the conclusion not consistent with the innocence of the accused. 50. From the above discussed evidence on record, the following circumstances have surfaced: 1. The deceased was missing from 3/3.30 p.m. of 11-12-2002; 2. She was last seen with the appellant in the counter of his studio, which was adjacent to his residence; 3. She was wearing a pair of silver bangles (churi) and jangia (panty); 4. Earlier also, she used to visit the said tenanted premises and meet the appellant, whom she called 'Kaku' (uncle), who was well-known to the deceased; 5. The accused procured a carton from the P.W. 3 in the morning of 11-12-02 i.e. the day the said deceased disappeared; 6. The dead body of the deceased was found folded in the said carton; 7. In the said carton, along with the dead body, a piece of check cloth (Lungi) and a part of the newspaper (Dainik Sambad), dated 16-9-02, was found; 8. The bangles (Churis), which the deceased used to wear, were not available with the dead body; 9. Similar/identical portion of the cloth, which was found with the dead body, was also recovered from the studio of the accused by the police, on being produced by him, in presence of witnesses; 10. The other part of the said newspaper was recovered from the studio of the accused on being produced by him, before the police, in presence of witnesses; 11. The other part of the said newspaper was recovered from the studio of the accused on being produced by him, before the police, in presence of witnesses; 11. The bangles (churis)), which were used by the deceased immediately prior to her disappearance and which were not available with her dead body, came to be recovered from the studio of the accused on being produced by him, before the police, in presence of witnesses. The said seized bangles were identified to be the bangles used by the deceased; 12. The deceased sustained injury on her vagina, causing destruction of hymen and making an opening into the abdominal cavity, through which loops of small intestine protruded out. This injury, in the opinion of the Medical Officer, was caused due to forceful penetration of adult erect penis; 13. All the injuries were ante-mortem and there was no post-mortem injury; 14. There was some nail marks on the cheek of the deceased due to smothering; 15. The death, in the opinion of the Medical Officer, who performed, the autopsy, was caused due to combined effect of asphyxia caused by smothering and shock as a result of penetration of the penis causing the injuries, above mentioned; 16. Post-mortem examination was done at 1.15 p.m. on 13-1-2002. The deceased was missing from 3/3.30 p.m. of 11-12-2002. The approximate time of death, with variation by few hours, as per the medical evidence (P.W. 19), was 54 to 60 hours. From 3 p.m. of 11-12-2002 to 1 p.m. of 13-12-2002, there was a time gap of around 46 hours. As there cannot be any definite opinion regarding the exact time of death, the said medical opinion indicates that the victim died around 3/3.30 p.m. or immediately thereafter i.e. after she was seen with the appellant in his studio. 51. All the above circumstances, which stood established without any contradiction on material points, support the prosecution version that the accused committed the said offence. 52. Mr. A. C. Bhowmik, learned Counsel, appearing for the appellant, firstly submitted that non-examination of the accused (medically) and the non-forensic examination of the wearing apparels of the victim failed to conclusively establish the guilt of the accused. 52. Mr. A. C. Bhowmik, learned Counsel, appearing for the appellant, firstly submitted that non-examination of the accused (medically) and the non-forensic examination of the wearing apparels of the victim failed to conclusively establish the guilt of the accused. Secondly, it is submitted, on behalf of the defence, that as the studio of the accused remained opened after the deceased was found missing, recovery of the said articles from the studio of the accused, cannot be substantive and legal evidence against the accused. 53. The third point, raised by the defence, was that the shop of P.W. 3 was managed by his brother and as such, the taking of the carton from the P.W. 3 and failure of the informant to mention the taking of carton and to discloser of the name of the accused in the FIR (Ext. 1), were sufficient to raise doubt about the prosecution version. 54. Regarding extra-judicial confession, it is also argued that the same having been made in the presence of the police is inadmissible. 55. The fourth submission, advanced on behalf of the appellant, was that the evidence, regarding last seen theory, was false and that the allegations were falsely made with a view to save the main culprit. 56. In reply to the said arguments, Mr. D. Sarkar, learned Public Prosecutor, submitted that all the relevant prosecution witnesses corroborated each other's evidence on all material aspects indicating the guilt of the accused and that the non-examination of the accused medically and non-examination of wearing apparels of deceased, in view of the specific and conclusive medical evidence, was not fatal to the prosecution's case. 57. Having heard the learned Counsels for both the parties and on giving on anxious consideration to the evidence on record, it is found that all the prosecution witnesses corroborated each other's evidence on material points. The witnesses, as discussed above, were duly cross-examined on behalf of the defence, but no major contradiction raising doubt about the veracity of their evidence could be established. In our considered opinion, in the light of specific medical evidence (P.W. 19) regarding rape and in view of the evidence that the accused was a full grown adult person, his non-examination by medical officer and non-forensic examination of the wearing apparels of the deceased were not fatal. In our considered opinion, in the light of specific medical evidence (P.W. 19) regarding rape and in view of the evidence that the accused was a full grown adult person, his non-examination by medical officer and non-forensic examination of the wearing apparels of the deceased were not fatal. The said Medical Officer ruled out that forceful penetration on a 7 years minor would always cause injury to the penis. He also made it clear that spermatozoa can be detected only in respect of living female within 48 hours and that as the dead body had already started decomposition he made to report regarding presence of spermatozoa. There is also clear medical evidence to show that there was penetration of male genital organ into the vagina of the deceased. Therefore, non-forensic examination of the wearing garments of the deceased and non-medical examination of the apparels was not fatal to the prosecution. Hence, we do not find force in the contention of the learned defence counsel on this point. As discussed above, the investigation, being launched on the basis of the telephonic information and the GD Entry, the subsequent FIR lodged was nothing but a statement made by the father of the victim during the course of investigation. Considering the attending circumstances and the mental condition of the father of the deceased, his failure to make detailed statement, regarding the involvement of the accused, is not so material as to belie the prosecution story. 58. That apart P.W. 3, while denying the suggestion that his brother used to run his shop, clearly stated that his brother used to help him in running the said shops and that the carton was taken from him by the accused. The evidence of the P.W. 3 could not be demolished. As the said shops were owned by P.W. 3, his evidence that the carton was taken from him by the accused cannot be rejected. There is nothing on record to hold that the P.W. 3 had no control on his shops and that he had not given the carton to the accused. Fact remains that, immediately, after noticing the carton, P.W. 3 reacted and disclosed, in presence of the witnesses, that the same was collected from him by the accused. In the light of the above forceful evidence, we find no substance in the argument advanced on behalf of the appellant. 59. Fact remains that, immediately, after noticing the carton, P.W. 3 reacted and disclosed, in presence of the witnesses, that the same was collected from him by the accused. In the light of the above forceful evidence, we find no substance in the argument advanced on behalf of the appellant. 59. The contention that the studio of the appellant remained open after missing of the deceased went missing stood belied by the evidence of P.W. 3, P.W. 4, P.W. 5 and P.W.6, who supported the evidence of P.W. 20 (I.O.) and said that on being asked, the accused had opened the door of the studio himself. This evidence of the said witnesses remained un-controverted, which implies that the studio was in closed state and the same was opened by the accused on being asked by the police in presence of the P.Ws. 60. Regarding the last seen theory also, as discussed earlier, there is the unimpeachable evidence of P.W. 10 and P.W. 11. There is nothing to hold that the said witnesses had any reason or grudge to falsely depose against the accused. From their evidence, it appear that the said witnesses had their shops in front of the studio of the appellant and that the said studio was visible from their respective shops. They are found to be natural witnesses. No contradiction could be established to belie their evidence. Hence, we find sufficient positive evidence that the accused and the deceased were seen together by P.W. 10 and P.W. 11. There is nothing on record to show that after the deceased was seen with the accused, she was found with any other person. Hence, we do hot find substance in the contention that the evidence, regarding last seen theory, was false and concocted. 61. With regard to the extra-judicial confession, alleged to have been made by the accused person, it is found from the evidence on record, that immediately after recovery of the dead body in the carton aforesaid the accused appellant was taken into custody by the police and the appellant made extra-judicial confession stating that he attempted to rape the deceased and as she raised alarm, he killed her by strangulation. From the evidence on record, it further appears that the said extra-judicial confession was made by the accused in the presence and custody of police. From the evidence on record, it further appears that the said extra-judicial confession was made by the accused in the presence and custody of police. Section 25 of the Evidence Act provides that any confession made to police officer cannot be proved against a person accused of any offence. Again Section 26 of the Evidence Act provides that no confession made by any person, while in custody of police, shall be proved as against such person. The legislature was of the view that any kind of confession made by an accused, while he is under the custody of police, cannot be used as evidence against him at the time of trial of the offence charged with. Admittedly, in the present case, the said confession was made by the accused, when He was under the custody of police. In view of the above bar in the statute, the extra-judicial confession alleged to have been made by the accused appellant, being hit by Sections 25 and 26 of the Evidence Act cannot be used against him. Therefore, the learned Judge committed error of law by accepting the said extra-judicial confession. 62. From the evidence as discussed above, it stood proved, beyond all reasonable doubt, that immediately before the deceased had gone missing, she was last seen with the appellant, that her bangles (Churis) which, she was wearing immediately prior to her having gone missing, were found, in the Studio, in possession of the appellant, that her dead body was found in a carton, which was collected by the appellant from the P.W. 3; that the remaining part of newspaper and the piece of the cloth, which were found along with the dead body in the carton, were recovered from the studio of appellant. The accused appellant's plea that bangles, Nupur (ornament used in ankles) and tie etc. were kept for taking photographs cannot be believed, because of the specific evidence that the said seized bangles belonged to the deceased. It cannot, therefore, be accepted and believed that the said bangles belonged to the appellant. The circumstances, which have so surfaced from the evidence, form a complete chain of evidence, without leaving room for any reasonable doubt that it was the accused, who was perpetrator of the gruesome act. It cannot, therefore, be accepted and believed that the said bangles belonged to the appellant. The circumstances, which have so surfaced from the evidence, form a complete chain of evidence, without leaving room for any reasonable doubt that it was the accused, who was perpetrator of the gruesome act. The above evidences being wholly consistent with the hypothesis of innocence of the accused, one can confidently hold that in all human probability, it is the appellant who was the perpetrator of the alleged crime. Therefore, the appellant's involvement in the offence stood proved beyond all reasonable doubt. Because of what has been discussed and pointed out above, we hold that the appellant has been rightly convicted of the offence under Section 376/302/201, IPC. 63. Now, to the question of sentence, we are required to examine, if, in the attending facts and circumstances of this case the accused deserves to be awarded the extreme penalty of death ? 64. Tracing the historical developments since 1955, regarding imposition of death penalty, the Apex Court, in the case of State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224 : ( AIR 2004 SC 3432 ), observed: Section 302, IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the code instructs the Court as to its application. The changes, which the Code has undergone in the last three decades, clearly indicate that parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3). There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is anew provision in the Code makes, it mandatory for the Court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the 'special reasons' contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors, Criminal justice deals with complex human problems and diverse human being. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. 65. After the amendment of Section 367(5) of the old Code by the Act 26 of 1955, the earlier law that the normal punishment for murder is death, no longer holds the field and now, it is the discretion of the Court to pass any one of the two sentences prescribed by Section 302, IPC. However, it is necessary to give reasons for imposing a particular sentence. After the said amendment of the Code, the normal punishment for murder is imprisonment for life and the death penalty is an exception. Court is duty bound to state reason for awarding death sentence and 'special reason' indicating that given facts and circumstances warrant the passing of death sentence only. 66. After the said amendment of the Code, the normal punishment for murder is imprisonment for life and the death penalty is an exception. Court is duty bound to state reason for awarding death sentence and 'special reason' indicating that given facts and circumstances warrant the passing of death sentence only. 66. A Division Bench of this Court, in the case of Mithu Kalita alias Mitu Kalita v. State of Assam, 2006 (1) GLT 393 : (2006 Cri LJ 2570), while making a detailed discussion regarding the question of sentence and imposing death sentence or confirmation of capital punishment of the accused, discussed various decisions and law laid down by the Apex Court. Referring to the decisions in the cases of Shiv Mohan v. State (Delhi Administration), (1977) 2 SCC 238 ; Bishnudeo Shaw v. State of West Bengal, (1979) 3 SCC 714 : ( AIR 1979 SC 964 :1979 Cri LJ 841); and Rajendra Prasad v. State of U. P., (1979) 3 SCC 646 : ( AIR 1979 SC 916 1979 Cri LJ 792), the Division Bench analysed the divergent views regarding the question as to what constitute 'special reason' for awarding death penalty. In the case of Rajendra Prasad (supra), it was observed that in the backdrop of the fact that the Code of Criminal Procedure, 1973, had been introduced with the intention of reforming the criminal justice system and aimed at rehabilitating the criminals rather than destroying or eliminating them, the Court took the view that special reason cannot be any reason; rather, a Court, before awarding death penalty, must conclude that the convict is irredeemable. 67. In the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : ( AIR 1980 SC 898 : 1980 Cri LJ 636), the Apex Court overruled the decisions in Bishnu Deo Shaw (supra) and Rajendra Prasad (supra) and held that it does not mandate that "special reasons" must be reform oriented only or that the death penalty can be imposed only when the security of the State or of the society is threatened or the public order and interest of the general public are in jeopardy. It was held that any reason, which is just and adequate, in the given facts and circumstances of a case, should be treated as 'special reasons'. 68. It was held that any reason, which is just and adequate, in the given facts and circumstances of a case, should be treated as 'special reasons'. 68. In Mithu Kalita's case (supra), it was observed: The Court must also pay due regard to the circumstances of the offender including his personality as a whole, which would obviously include his age, character, antecedent, the situation in which the crime was committed, and, above all, the probability of his being reformed and rehabilitated. To put it differently, the criminal can be treated as a sick person and may be subdivided into two groups. Those, who suffer from curable diseases and in respect of whom, society must make endeavour to cure, reform and rehabilitate. The second group of the sick persons may be those, who suffer from incurable disease and are immune to treatment. They are not only immune to treatment, but their very existence may be a grave danger to the community at large. While considering the question of death sentence, what a court has to understand is as to whether there is any judicial limitation to the imposition of death penalty and, if so, what is the extent of such limitation. The answer to this momentous question is not very far to seek. Made it clear, the Constitution Bench, in Bachan Singh (supra), that the Court would not venture to formulate rigid standards as regard the cases, which demand capital punishment. Further clarified the Supreme Court in Bachan Singh (supra), that it is neither practicable nor desirable that the criteria of applying discretion by the Courts to sentence a guilty person to death be laid down exhaustively and in rigid standards. However, the broad criteria guiding the Courts in respect of imposition of death penalty was given shape in Bachan Singh (supra) by making it clear that the extreme penalty of death can be inflicted only in gravest cases or extreme culpability. Thus, the rule limiting the death penalty to "the murder most foul" is, now, christened 'in the rarest of rare cases'. 69. In Bachan Singh (supra), the Apex Court clearly laid down that awarding sentence of life imprisonment is the general rule of law, while capital punishment should be imposed only in special facts and circumstances, that is, falling under the category of rarest of the rare cases. 70. 69. In Bachan Singh (supra), the Apex Court clearly laid down that awarding sentence of life imprisonment is the general rule of law, while capital punishment should be imposed only in special facts and circumstances, that is, falling under the category of rarest of the rare cases. 70. In Machhi Singh v. State of Punjab ( AIR 1983 SC 957 : 1983 Cri LJ 957), the following guidelines, laid down in the Bachan Singh (1980) 2 SCC 684 8, (supra), were reiterated: (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 along with 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 like to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and just a balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 71. In view of the above guidelines, as mentioned in Machhi Singh (supra), while dealing with a case, wherein the maximum penalty prescribed is capital punishment, the following questions may be asked and answered: (a) Whether in the given facts and circumstances of a case, there is anything uncommon about the crime committed by the accused, which renders the sentence of imprisonment for life inadequate and calls for death sentence only. (b) Whether in view of the circumstances of the alleged crime, there is no other alternative, but to impose the death penalty even after according maximum weightage to the mitigating circumstances, which favour the offender. 72. The Division Bench of this Court, referring to Mithu Kalita's (supra) observed as follows: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme in indignation of the community. 72. The Division Bench of this Court, referring to Mithu Kalita's (supra) observed as follows: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme in indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by hired assassin for money or rewards or cold blooded murder for gains of a person vis-a-vis whom the murderer is the a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so. 73. In view of the decisions in the cases of Bachan Singh (supra) and Machhi Singh (supra), in the cases in which question of death penalty comes, a balance sheet of aggravating circumstances going against the accused offender and mitigating circumstances appearing in favour of an offender is to be drawn up giving full weightage to the mitigating circumstances and a just balance has to be struck between the aggravating and the mitigating circumstances before concluding the decision to impose the extreme penalty of death. 74. 74. From the above decision, it can be concluded that the principle of rarest of rare case is limited to the gravest of grave murder and the extreme penalty of death is to be imposed only in extreme case, if the life imprisonment is not found to be adequate and sufficient to meet the ends of justice. In arriving at a decision to impose death penalty it is also necessary to examine whether the nature of the offence is heinous one and if the same was executed in a brutal/cruel manner after hatching a pre-planned design and if there is any prospect of reforming the accused for his return to the society as its member. The death penalty can be awarded in a case, where collective conscious of the community is so shocked that it will expect the judicial authority to impose death penalty. 75. Now, it is well settled law that under Section 302, IPC, the capital punishment is an exception and the rule is the life imprisonment. The Apex Court, time and again, cautioned that death penalty should be imposed only in extreme cases if the case falls under the category of 'rarest of the rare case'. The Supreme Court, in the case of Bishnu Prasad Singha and Anr. v. State of Assam, as reported in AIR 2007 SC 848 : (2007 Cri LJ 1145), observed - "but it must be born in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty, would not be awarded". 76. A Division Bench of this High Court, in the case of State of Assam v. Anupam Das, as reported in 2007 (3) GLT 697 : (2008 Cri LJ 1276), referring to the case of Bishnu Prasad Singha (supra), opined as follows: We do not find any absolute rule laid down by the Supreme Court in the said judgment that under no circumstances death penalty would be awarded in a case where the guilt is established on circumstantial evidence. The Supreme Court said "ordinarily death penalty would not be awarded". Therefore, we have still to examine whether this is an extraordinary case warranting the imposition of death penalty. 77. The Supreme Court said "ordinarily death penalty would not be awarded". Therefore, we have still to examine whether this is an extraordinary case warranting the imposition of death penalty. 77. In a rape case, followed by the death of the victim, it is hardly possible to find evidence of any eye-witness, because, normally, rape is not committed in presence of others. Therefore, in view of the observations made above, there cannot be any absolute law that death penalty cannot be imposed in a case based on circumstantial evidence. The imposition of appropriate penalty depends on the gravity of the offence, the manner and the circumstances in which it was committed, the conduct and antecedent of the accused. The Supreme Court indicated various aggravating and mitigating factors, which justify imposition of death penalty or life imprisonment, as the case may be. 78. In the case of Amrit Singh (supra), a minor aged about 7-8 years was raped by the appellant resulting into her death. The dead body of the victim girl, who was missing from her house, was found in the agricultural field belonging to the appellant situated in front of his house. PW3 disclosed that he had seen the deceased in the company of the appellant at about 5.45 p.m. Accordingly the appellant was arrested and at the closure of the trial, the learned trial Judge sentenced the appellant to death. The High Court, while confirming the death sentence, dismissed the appeal filed by the appellant. On appeal, the Apex Court modified the death sentence to a sentence of rigorous imprisonment for life holding that it was not a case to be treated as the rarest of rare case. 79. While commuting the penalty of death sentence to imprisonment for life, in the case of Aloke Nath Dutta and other v. State of West Bengal, reported in (2007) 12 SCC 230 the Hon'ble Apex Court, at paragraph 157, referred to the paragraphs 36 and 37 of the decision held in the case of "State of Rajasthan v. Kheraj Ram, reported in (2003) 8 SCC 224 : ( AIR 2004 SC 3432 )", which reads as follows: 35. The principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. The principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment need not be disproportionately great, which is a corollary of just deserts, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. 36. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably, to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime, yet in practice sentences are determined largely by other considerations. Somethings it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the terrific results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. 80. Drawing a balance-sheet of the aggravating circumstances and the mitigating circumstances, the Division Bench of this Court, in Mithu Kalita alias Mitu Kalita (supra), confirmed the imposition of penalty of death on the accused and dismissed the appeal. In the said case, it was found to be proved that the accused had attempted to rape a minor girl and, thereafter, killed hereby putting her head inside the water and lifting her legs up. The manner of killing the child was found ghastly, grotesque and beasily. Considering the barbaric manner in which the offences were committed, the offences committed were found to be one falling within the category of 'rarest of rare case', having no other alternative, but to impose the death penalty. The manner of killing the child was found ghastly, grotesque and beasily. Considering the barbaric manner in which the offences were committed, the offences committed were found to be one falling within the category of 'rarest of rare case', having no other alternative, but to impose the death penalty. In the said case, it was found from the record, that the accused was also involved in the past, in criminal offences and the co-villagers, more particularly, children of the village, used to be scared to him. 81. In the backdrop of the law regarding imposition of death penalty, as discussed above, we may now examine if the present case is a fit case warranting imposition of death penalty. For this purpose, we propose to prepare the following balance-sheet of aggravating and mitigating circumstances appearing in the case: AGRAVATING CIRCUMSTANCES: (i) The victim was helpless female child, aged about 7 years; (ii) She trusted the accused and as such, she used to visit him even wearing only a panty; (iii) The child was raped, causing injury to her vagina and perforation through abdominal wall due to penetration by (male genital organ); (iv) The deceased was killed by smothering; (v) The accused exhibited complete absence of human feelings, while deciding to commit rape on seven years old minor, resulting into her death; (vi) He even after committing the offence, in cool mind, tried to remove/destroy the evidence by disposing of the dead body after putting the same in a small carton collected by him from P.W. 3 and left the dead body behind the Co-operative Bank; (vii) Despite committing the ghastly acts on the helpless child, the accused suffered from no instinctive remorse. Rather, he behaved normally, wholly ignoring as to what had happened to the child. The accused behaved in a manner, as it no offence was committed by him. Rather, he behaved normally, wholly ignoring as to what had happened to the child. The accused behaved in a manner, as it no offence was committed by him. Even during the search operation, launched to trace out the missing girl, the accused accompanied the search party without disclosing about commission of the crime; (viii) The manner in which the innocent helpless minor girl was raped and immediately killed was inhuman, barbaric and dastardly; (ix) The act of committing rape, followed by murder and disposal of the dead body, were done in cold blood; (x) There was no sign of any repentance or remorse, on the part of the accused, during the trial also; (xi) The nature of the offences committed by the accused were not only horrifying, but also shocking to the society. MITIGATING CIRCUMSTANCES : '' (I) The accused was a young boy of about 20/22 years; (II) He did not procure the victim girl rather, the victim girl, herself went to his studio; (III) The accused, while attempting to commit rape on the victim, caused death of the deceased. Either to destroy evidence of such crime committed by him or to stop her from raising alarm during the rape or from reporting the matter to others and accordingly to save himself, he disposed of the dead body in a carton; (IV) Probably, finding the lonely 7 (seven) years old girl in his studio, the twenty plus young boy felt the urge to have sex with the said girl and this prompted him to rape her; (V) As a result of the aforesaid rape, on a seven years old minor girl, the injuries were caused to her vagina. Certainly the minor suffered tremendous pain compelling her to cry and in order to stop her from raising alarm, the, accused probably smothered her causing her death; (VI) The Medical evidence also indicates that the death was the result/consequence of the combined effect of the injuries and smothering; (VII) In order to save himself from being caught, in connection with the said offences, the accused disposed of the dead body by putting the same into a carton; (VIII) There is nothing on record to show that there was any previous plan or design to commit the said offences; (IX) There is no evidence on record to find that the accused had committed the offences for any other reason except for meeting his sexual urge; (X) There is no evidence of past criminal record against the accused; (XI) There is also nothing on record to find that the accused was a menace or threat to the society or that his joining the society would be injurious to the society. 82. On careful consideration of the abovementioned aggravating circumstances appearing against the accused as well as mitigating factors, which speak in his favour, we find, after giving full weightage to the mitigating circumstances, that the accused on finding an almost bared bodied girl, felt sexual urge, he wanted to fulfill his sexual desire; as a result thereof, the death of the deceased was caused after committing the offences. It is the natural instinct of a person to try to save himself, as such, in the present case also, the accused, after committing the death of the deceased, in the alleged manner, tried to dispose of the dead body by putting the same in the carton with a view to remove the evidence against him. The accused neither called the deceased to his shop, nor did he manage, in any manner, to procure her presence in his studio with a view to commit rape and murder. Earlier also, the deceased used to visit the accused and other tenanted premises of her father. There is no previous complaint of any ill-treatment against the accused. Therefore, it can be safely held that, in all probability, the idea of committing rape came to the mind of the accused, immediately after finding the deceased alone in his studio. Fact remains that the deceased, as usual, casually went to the studio of the accused on the fateful day. Therefore, it can be safely held that, in all probability, the idea of committing rape came to the mind of the accused, immediately after finding the deceased alone in his studio. Fact remains that the deceased, as usual, casually went to the studio of the accused on the fateful day. Therefore, there is nothing on record to find that the accused had any previous intention or design to commit the offences aforesaid. Hence, it can be concluded that the offence of rape was committed on a spur of moment as a result of momentary loss of reasons and humanly considerations. The accused, who was aged about twenty years, failed to apply his prudent mind and reasons and got prompted to fulfil his desire by using the said minor, who was not fit to have sex. It was a case of failure of human mind to apply reasoning and good conscience. There is nothing on record to hold that the appellant had been a menace to the society, that the people, in the locality were completely horrified and that children were not safe with the existence of the appellant. Therefore, in absence of any past criminal record against the conduct and manner of the appellant, it is not a case, where the existence of the appellant would be a threat to the society and that there is no scope for his reformation. The appellant, being a young person of 20/22 years, without any past criminal record, cannot be treated as a threat to the society. We understand that though the case superficially viewed gives an ugly look shocking the conscience of the people, we are also aware of the fact that the murder was the consequence of the greed of the accused to meet his sexual desire, when developed after seeing the lone girl in his studio. The medical evidence also reveals that the death was caused due to combined effect of asphyxia due to smothering and shock as a result of penetrating injury. 83. The manner in which the deceased was raped by the appellant was, undoubtedly brutal, but, there is nothing on record to show that he had any pre-meditated plan to commit the offence of rape. The death of the deceased was the result of the appellant's desire to meet his sexual urge. 83. The manner in which the deceased was raped by the appellant was, undoubtedly brutal, but, there is nothing on record to show that he had any pre-meditated plan to commit the offence of rape. The death of the deceased was the result of the appellant's desire to meet his sexual urge. Therefore, though the offences look heinous, it cannot, in the circumstances, as discussed above, can be said to be a rarest of rare case. 84. In the light of the above discussion, we feel inclined to conclude that this case does not fall within the category of "the rarest of the rare case". Therefore, in our view, it is not a case, where extreme penalty of death should be imposed. We have no hesitation in holding that imposition of punishment of rigorous imprisonment for life would be sufficient to meet the ends of justice. Accordingly the death penalty is commuted to rigorous imprisonment for life. The appellant, therefore, instead of being awarded the death penalty, is hereby sentenced to undergo imprisonment for life for the offence under Section 302, IPC. However, the other part of the sentence imposed by the learned Sessions Judge, for the offences, under Sections 376, IPC and 201, IPC are maintained. 85. With, the above modification in sentence, the appeal stands partly allowed. The punishments shall run concurrently. 86. In the result, and for the reasons discussed above, we decline to confirm the sentence of death imposed on the accused by the learned trial Judge. Accordingly, the Criminal Death Reference and the Criminal Appeal shall stand disposed of. Send back the lower Court record. Appeal allowed