Judgment :- Ashim Kumar Roy, J. 1. In a Sessions trial held before the learned Additional Sessions Judge, Diamond Harbour, 24 Parganas (South) the appellant Sagar Das @ Gadai was convicted under Sections 302/376/201 of the Indian Penal Code. The Trial Court for his conviction under Section 302 of the Indian Penal Code passed a sentence of death. Simultaneously, he was also sentenced to suffer rigorous imprisonment for 10 years and rigorous imprisonment for 2 years and fine with default clause for his conviction under Sections 376/201 of the Indian Penal Code. Since the Death Reference for confirmation of sentence of death and the criminal appeal in which the appellant challenged his conviction and sentence are arising out of selfsame judgment and order, both are taken up for hearing together. 2. Going through the materials on record we find the prosecution case goes like this; May 8, 2011 was the day of immersion of goddess Kali, worshiped at the house of the de facto complainant Prohlad Sardar (PW/1). On the occasion of the said Kali Puja the appellant Sagar Das @ Gadai, who happened to be the son-in- law of the elder brother of the de facto complainant and their other relations had been to his house. On the day of immersion, at about 9/9.30 p.m., the appellant took away with him the victim girl aged about 12 years, the daughter of the PW/1 for purchasing ‘Abir’ from Saharar Hat. At around 11 p.m. on that night the appellant returned home alone and being asked by the PW/1 and his wife PW/2, they were given to understand by him that their daughter would return shortly from Saharar Hat and towards van fare Rs. 5/- has been given to her. Since she was not returning home, the inmates of the house with the help of the villagers started searching and finally her body was found in a completely naked condition inside a bush situated at the garden of Palui. She was immediately removed to the hospital and was declared brought dead but in the meantime the appellant fled away. On the next day the incident was reported to the local police station and a FIR was registered against the appellant for committing the offence punishable under Section 302/376/201 IPC and he was arrested. She was immediately removed to the hospital and was declared brought dead but in the meantime the appellant fled away. On the next day the incident was reported to the local police station and a FIR was registered against the appellant for committing the offence punishable under Section 302/376/201 IPC and he was arrested. During postmortem the Autopsy Surgeon, PW/23 found multiple injuries on her person and even on her genitals and opined the death was due to the effects of manual strangulation which were antemortem and homicidal in nature associated with evidence of sexual assault. 3. The case of the prosecution completely rests on circumstantial evidence and prosecution to prove its case examined as many as 16 witnesses. Whereas defence examined none and it appears from the trend of cross-examination of the witnesses and from the answers given by the appellant against the questions put to him during his examination under Section 313 CrPC that allegations were false, he was innocent and the de facto complainant took a sum of Rs. 20,000/- from him as a loan and that was the day for repayment of the loan, but instead thereof he has been falsely implicated in the case. 4. The following circumstances have been relied on by the prosecution during trial against the appellant to prove his guilt: (i) The victim was killed by manual strangulation after being forcibly raped. (ii) The day of the incident was the day of immersion of the goddess Kali, worshiped at the house of the PW/1 and when arrangement for immersion was on the process, the appellant took the victim out on the pretext of purchasing ‘Abir’ from Saharar Hat. (iii) According to the PW/2 the mother of the victim girl, at around 9/9.30 p.m. both the appellant and the victim girl left together for Saharar Hat. (iv) The PW/4 Shila Jana and PW/6 Namita Sardar, who are the neigh bours of PW/1 at around 10/10.30 p.m. found her with the appellant, going towards Saharar Hat in a van. (v) The appellant, however, returned home at around 11 p.m., when the appellant was bare footed, but the victim girl was not with him and being asked by the PW/2, her mother, she was told by him that victim would return shortly from Saharar Hat and he has handed over to her Rs. 5/- towards the payment of van fare. (v) The appellant, however, returned home at around 11 p.m., when the appellant was bare footed, but the victim girl was not with him and being asked by the PW/2, her mother, she was told by him that victim would return shortly from Saharar Hat and he has handed over to her Rs. 5/- towards the payment of van fare. (vi) Since the victim girl did not return home, the inmates of the house with villagers started searching and around 12 midnight her naked dead body was found inside a bush at the garden of Palui, which is about a kilometer away from the residence of the PW/1. (vii) In the meantime the appellant fled away from the house of the PW/1. (viii) The PW/9, Rabin Sardar, a local rickshaw puller while was returning from Saharar Hat to Sujapur with his van, in between 11/11.30 p.m. found the appellant coming out from ‘Palui Bagan’ and was sweating. He took the appellant in his van and dropped at his house. (ix) From the place of occurrence the police seized the chappals of both the appellant and the victim and the gas lighter belonging to him. (x) On the date of the incident the appellant also asked the elder sister of the victim PW/3 Sumita Sardar to go with him, but she denied. 5. The learned counsel for the appellant vehemently contended in a case based on circumstantial evidence, no conviction is legally permissible unless all the pieces of incriminating circumstances pitted against the appellant are proved by reliable and clinching evidence and circumstances so proved, must form a chain of events as would permit no conclusion other than the guilt of the accused and suspicion however grave, cannot be a substitute for a proof. In this connection he relied on three decisions of the Hon’ble Supreme Court viz., in the case of; (i) Khashaba Maruti Shelke Vs. State of Maharashtra, reported in (1973) 2 SCC 2474, (ii) State of West Bengal Vs. Amar Rai reported in (2012) 2 C Cr LR (Cal) 172, (iii) State through Central Bureau of Investigation Vs. Mahender Singh Dahiya reported in (2011) 3 SCC 109 . However, the learned counsel for the appellant has not disputed the opinion of the postmortem doctor that the victim was raped and killed. 6. Amar Rai reported in (2012) 2 C Cr LR (Cal) 172, (iii) State through Central Bureau of Investigation Vs. Mahender Singh Dahiya reported in (2011) 3 SCC 109 . However, the learned counsel for the appellant has not disputed the opinion of the postmortem doctor that the victim was raped and killed. 6. Then he first urged the time when the victim was allegedly taken away for Saharar Hat by the appellant is contradictory. He submitted that while in the FIR, the maker whereof is the PW/1 father of the victim, it was around 7 p.m. in the evening, but according to the mother, PW/2 it was at about 9/9.30 p.m. whereas two of the prosecution witnesses, viz., PW/4 Shila Jana and PW/6 Namita Sardar in their depositions claimed to have found the appellant and the victim in a van proceeding towards Saharar Hat at around 10/10.30 p.m. He then added although the van puller was a very vital witness of the case, in whose van the victim and the appellant were found proceedings towards Saharar Hat by the PW/4 and PW/6, but was not examined during the trial. According to him, these were very serious lacunas in the prosecution case and render it highly unreliable and the order of conviction is liable to be set aside. Next, he submitted that while according to the PW/1, the father of the victim at about 10 p.m. the appellant returned home alone but according to the PW/2, the mother, he returned at around 11 p.m., therefore the time when actually the appellant returned home is also contradictory. Then he submitted that the above evidence of PW/1 and PW/2 as to when the appellant returned home completely falsify the evidence of PW/4 and PW/6 that they found the appellant and victim together in a van at around 10/10.30 p.m. proceeding towards Saharar Hat. He further submitted even if it is accepted that the victim was found in the company of the appellant at around 10/10.30 p.m. it is quite impossible for him to commit the crime and then to come back within such short interval. In this regard he relied on the observation of the Hon’ble Apex Court in paras 26, 27 and 28 in the case of Ramreddy Rajes Khanna Reddy & Anr. Vs. In this regard he relied on the observation of the Hon’ble Apex Court in paras 26, 27 and 28 in the case of Ramreddy Rajes Khanna Reddy & Anr. Vs. State of A.P. reported in (2006) 3 SCC (Cri) 512 and submitted that according to the Apex Court, “last seen theory” comes into play where the time gap between the point of time when the accused and the deceased were last seen together and 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 and even in such cases courts should seek some corroboration. 7. The learned counsel for the appellant then urged the witness PW/9, Rabin Sardar, the van puller who claimed to have picked up the appellant from ‘Palui Bagan’ and dropped him at his residence is not at all reliable on the face of the evidence of the PW/1 and PW/2. While according to PW/1, the appellant returned home at around 10 p.m. and according to PW/2, he returned at around 11 p.m. but the PW/9 claimed that he picked up the appellant at around 11/11.30 p.m. He further submitted the PW/9 in his deposition stated when he reached the appellant at his house, at that time victim was found missing and everybody started searching for her. He then contended if it is true that the victim left with the appellant, then the question of searching her does not at all arise until the appellant returned. So far as the case of the prosecution as to the recovery of the chappals and the gas lighter of the appellant from the spot where the dead body was found lying, is concerned, from the side of the appellant it was contended, during the trial it was never proved that those were belonging to him. He contended the claim of the PW/1 that the same were belonging to the appellant cannot be sustained on the face of the answer of the said witness, in his crossexamination, which was to the effect ….. I can not tell as to who was using shoe or chappal at the time of gathering in my house on the date of occurrence. I had no knowledge as to which of my relative was using safety match or gas lighter at the time of gathering in my house. I can not tell as to who was using shoe or chappal at the time of gathering in my house on the date of occurrence. I had no knowledge as to which of my relative was using safety match or gas lighter at the time of gathering in my house. He then pointed out what was stated by the investigating officer of this case, the PW/16, in his cross-examination “I did not record statement of the accused as to whether the seized ‘chappal’ was owned by him. The de facto complainant identified the chappal and gas lighter to be owned by the accused. In his statement u/s 161 Cr. P.C. the de facto complainant did not state that he identified the said articles to be owned by the accused Sagar Das and he did not record the statement of the accused whether the seized chappal was belonging to him”. Then he laid much stress on the fact that none of those articles was recovered at the instance of the appellant and the same goes against the prosecution case. 8. Coming to the prosecution allegation that the appellant fled away while search for the victim girl was going on he draws our attention to the evidence of PW/1 and PW/2 and pointed out, according to both the said witnesses, the appellant was very much present at their house. He then pointed out the appellant while was examined under Section 313 CrPC clearly stated that he also took part in searching of the victim when she was found not traceable. He also submitted, according to the investigating officer of the case, PW/16 that he arrested the appellant at 9.15 hours on next day at the police station produced by the villagers after manhandling him. It was pointed out that from the evidence of the prosecution witnesses, including the parents and the neighbouring people that all of them initially thought that victim was missing, but after the dead body was discovered, only out of grave suspicion the appellant has been falsely implicated in the case by fabricating a false story. 9. It was submitted although urethral swab both of the accused and the deceased were collected, but nobody knows what was the test report. 9. It was submitted although urethral swab both of the accused and the deceased were collected, but nobody knows what was the test report. Next, it was contended that although nail clippings of the victim girl was taken, but was not sent to FSL and when the allegation is killing of victim girl by manual strangulation, however, no attempt was made by the police to obtain finger print from the throat of the victim so as to match the same with the finger print of the appellant. It is then added, although according to the witnesses, the dead body was found in a naked condition, but during inquest her wearing apparels were found on the body. Lastly, on the point of sentence, it is submitted that the prosecution has not able to bring the case within the ambit of rarest of rare cases and therefore, it is not a case of Capital Sentence. 10. In his reply the learned Public Prosecutor strenuously contended that in this case all the circumstances relied against the appellant has been proved beyond all reasonable doubt and therefore, the trial Court has very rightly come to the conclusion that it is the appellant and none else is the perpetrator of the crime, where a girl aged about 12 years has been killed after she was raped. He then submitted that from the evidence of PW/1 and PW/2 the father and the mother of the victim girl it is well established that the appellant had taken away the victim girl from their residence with the pretext of taking her to Saharar Hat for purchasing ‘Abir’ on the day of immersion of Kali puja. He further submitted both the PW/4 and PW/6 found them together in a rickshaw van proceeding towards Saharar Hat. He then submitted the time gap between the time when the appellant left with the victim, as deposed by her mother PW/2 and the time they were found together by the PW/4 and PW/6 are very close. He then contended the most incriminating evidence against the appellant is that of the evidence of PW/9, the rickshaw van puller and according to whom the appellant at around 11/11.30 p.m. on that day boarded in his van from ‘Palui Bagan’ where within a few hours the dead body of the victim girl was discovered. He then contended the most incriminating evidence against the appellant is that of the evidence of PW/9, the rickshaw van puller and according to whom the appellant at around 11/11.30 p.m. on that day boarded in his van from ‘Palui Bagan’ where within a few hours the dead body of the victim girl was discovered. He then submitted the recovery of chappal and gas lighter of the appellant from the place of occurrence which was duly identified by the PW/1 clearly indicated his guilt as also his fleeing away from the spot. Finally, the learned Public Prosecutor submitted that the following circumstances complete the chain establishing the guilt of the appellant, i) There was Kali Puja celebration in the house of the de facto complainant. ii) Appellant who is the son-in-law of his brother, his presence in the said house on the date of the incident was not disputed. iii) The daughter of the de facto complainant, the victim, a girl aged about 12 years left with the appellant and went towards Saharar Hat in a van. iv) None saw them returning. v) Only the Appellant returned. vi) PW/9 Rabin found the appellant coming out of the ‘Palui Bagan’ and brought him from there to the house of the de facto complainant. vii) Soon thereafter within a few hours her dead body was discovered at ‘Palui Bagan’. viii) Rape and murder proved by PW/15 Dr. Nabanita Adhikary. ix) The appellant fled away and then caught by the villagers and handed over to the police. He contended that after the aforesaid fact being established, according to the provisions of Section 106 of the Evidence Act, it is for the appellant now to prove as to how and under what circumstances the victim was killed and the appellant having failed to do so his guilt stands proved. However, the learned Public Prosecutor submitted that in the light of the mitigating factors laid down by the Hon’ble Supreme Court in the case of Bachan Singh Versus State of Punjab, reported in (1980) 2 SCC 684 this is not a case of capital sentence. The learned Public Prosecutor in support of his contention relied on the following case laws. i) 1992 SCC (Cri) 642 : (1992) 3 SCC 300 State of UP Versus Dr. Ravindra Prakash Mittal. ii) 1997 SCC (Cri) 612 Balram Prasad Agarwal Versus State of Bihar and Others. The learned Public Prosecutor in support of his contention relied on the following case laws. i) 1992 SCC (Cri) 642 : (1992) 3 SCC 300 State of UP Versus Dr. Ravindra Prakash Mittal. ii) 1997 SCC (Cri) 612 Balram Prasad Agarwal Versus State of Bihar and Others. iii) 2007 SCC (Cri) 80 Trimukh Maroti Kirkan Versus State of Maharashtra. iv) 2007 SCC (Cri) 688 State of Rajasthan Versus Kashi Ram. 11. We have heard the learned Counsels appearing on behalf of the parties. We have gone through the impugned judgment and very carefully examined the findings on which the order of conviction is based as also the depositions of the witnesses and other materials on record. We also considered the case laws cited from the side of the parties. 12. At the very outset it be noted that before us the case of the prosecution that the victim suffered a homicidal death caused by manual strangulation which is ante-mortem in nature and before her murder, she was raped has not been disputed from the side of the appellant. Now, considering the evidence of the Autopsy Surgeon, PW/15, Dr. Nabamita Adhikari and going through the post mortem report Exhibit – 14 and considering the findings, we have no doubt as to the same. 13. This is a case based entirely on circumstantial evidence and there is no direct evidence. It is now well established, by a series of decisions of the Apex Court in a case of this nature the circumstances relied upon by the prosecution against the accused must not only form a complete chain, but at the same time all the links in the chain of circumstance must be proved beyond all reasonable doubt and in their totality must unerringly lead to the conclusion that offence was committed by the accused and none else. There should not be existence of any circumstance which may lead to a reasonable conclusion consistent with the innocence of the accused, meaning thereby, the circumstances relied upon by the prosecution not only to be fully established beyond all reasonable doubt, but it must be of conclusive nature and consistent only with the hypothesis of guilt of the accused and should not be capable of being explained by any other hypothesis. 14. 14. The first circumstance relied upon by the prosecution against the appellant is this, on the day of immersion of goddess of Kali, worshiped at the residence of Prohlad Sardar, the appellant, the son-in-law of his elder brother was present and such fact has not been disputed from the side of the defence. It is the further case of the prosecution on that day the appellant went away with the victim girl on the pretext of purchasing ‘Abir’ from Saharar Hat. From the side of the prosecution such evidence was brought on record by examining the PW/1 and PW/2 who are the parents of the victim. The learned counsel for the appellant urged before us to discard such evidence as the time when the appellant allegedly left with the victim was contradictory. While PW/1, the father claimed that they left around 7 p.m, but according to the PW/2, mother it was around 9/9.30 p.m. Now going through the evidence of PW/1, we did not find that in his evidence the PW/1 anywhere referred to the time when they left home. It is only in the FIR, the maker whereof, the PW/1, it was mentioned that they left at about 7 p.m., however during trial the PW/1 was not cross-examined with reference to the same to contradict the prosecution case. It needs no debate that FIR is not a substantive piece of evidence and the same can only be used to the extent permitted by the proviso to Section 162 CrPC that is to contradict the informant with reference to any particular facts stated therein. In this regard reference may be made to the decisions of the Hon’ble Supreme Court in the case of State of Bombay Versus Rusi Mistry and Another reported in AIR 1960 SC 391 ; In the case of Hasiv Versus State of Bihar reported in AIR 1972 SC 283 , three-Judges Bench of the Apex Court while re-affirming the earlier view categorically stated that an FIR can be used only as a previous statement for the purpose contemplated under Section 157 or Section 145 of the Evidence Act i.e. for corroborating or contradicting its maker and not of other witness (para 5). In the case of Nankhu Singh Versus State of Bihar reported in AIR 1973 Supreme Court 491 while the Supreme Court endorsing its earlier view held …. In the case of Nankhu Singh Versus State of Bihar reported in AIR 1973 Supreme Court 491 while the Supreme Court endorsing its earlier view held …. same contradictions were sought to be pointed out in the statement as given in the First Information Report and in the evidence of witness PW/11, but we do not think it is open to the learned Advocate to commend upon it because none of the contradictions has been put to the witnesses at the time of giving evidence. Thus, the time mentioned in the FIR as to when the appellant went away with the victim, when is not mentioned in his testimony by the PW/1 and when no contradiction was taken from the side of the defence, the time mentioned in the FIR as the law stand is to be kept out of consideration. The only evidence we now find as to the time when they left together, is the evidence of the PW/2, mother of the victim girl and according to her, it was around 9/9.30 p.m. the appellant took away the victim from their residence for purchasing ‘Abir’ from Saharar Hat. We find from the entire cross-examination of the PW/2, except suggesting her that her such evidence was false, which has been denied by her, there is nothing to discredit her on this score. Therefore, we are unable to accept the claim of the Counsel of the appellant that the prosecution case as to the time when both of them went away together was contradictory. We have also till now found no reason to disbelieve the PW/2 on that point. 15. The second circumstance relied upon by the prosecution against the appellant was that before the victim was found killed the appellant and the victim were last seen together by the PW/4, Shila Jana and PW/6, Namita Sardar who were the neighbours of the PW/1, the de facto complainant. According to them, on that day at around 10/10.30 p.m. while they were waiting for immersion procession, they found the appellant and the victim in a van proceeding towards Saharar Hat. According to them, on that day at around 10/10.30 p.m. while they were waiting for immersion procession, they found the appellant and the victim in a van proceeding towards Saharar Hat. It is of course true, the circumstances of last seen together cannot by itself is sufficient to reach a conclusion of guilt of the accused in whose company the deceased was last seen alive before found killed, but the same can always be accepted as a strong incriminating circumstance against the accused and become much stronger when the accused failed to satisfactorily account for as to how and under what circumstances the victim was killed and particularly when the witness to such circumstance is found otherwise credible and there are other incriminating evidences. In this regard reference may be made to the case of State Versus Suresh, reported in (2000) 1 SCC 471 , State of Karnataka Versus Khaja Hussain, reported in 1983 SCC (Cri) 82. On careful perusal of the depositions of PW/4 and PW/6, we find like the other witnesses, their evidence was challenged from the side of the defence by suggesting that what they were deposing was false, but the witnesses denied the same. Nothing was brought out from their cross-examination to touch their credibility. The only discrepancy we find although according to PW/2 the appellant left with the victim at around 9/9.30 p.m., but according to the aforesaid witnesses, they found them together in a rickshaw van proceeding towards Saharar Hat at around 10/10.30 p.m. In our opinion there is no contradiction and the discrepancies, if any, is too feeble and quite natural. It is neither essential nor expected that exact time of each and every happenings noticed by any person in daily life must be embedded in mind, unless of course, the time is so co-related with the incident that exact time is the essence of the event. In this case the time gap as to when, according to the PW/2, the victim with the appellant left the home and when they were found together in the road by the PW/4 and PW/6 is so small that without any hesitation it can reasonably be accepted that such time was actually consumed in their movement i.e. the time spent in going out from the house and then in catching the van. Furthermore, none of the witnesses gave the exact time, but only mentioned the approximate time. In this case the evidence of PW/2 that the appellant took away her daughter for purchasing ‘Abir’ from Saharar Hat and the PW/4 and PW/6 found them together proceeding towards Saharar Hat in a rickshaw van is a very strong incriminating circumstance against the appellant and we have no doubt that the prosecution has been able to establish the said circumstance and on that day the victim was last seen alive in the company of the appellant at around 10 p.m. and at that time they were proceeding in a van towards Saharar Hat. 16. The theory “last seen together” comes into play and assumes great importance pointing towards the guilt of an accused where the time gap between the time when the victim was found alive for the last time in the company of the accused and when found dead is so small that the possibility of any other person other than the accused being the author of the crime becomes impossible. In this connection the reliance may very well be placed in the case of Ramreddy Rajesh Khanna Reddy Versus State of A.P. (supra), the case law which was cited from the side of the appellant. In the case at hand the victim and the appellant was last seen together by the PW/4 and PW/6 between 10/10.30 p.m. and her dead body was discovered around 12 mid-night and at a place towards which they were found proceeding together in a van and was about a kilometer away. Indisputably, the time gap is too small and merely of a few hours only. Consequently, the circumstance of last seen together becomes much stronger pointing towards the guilt of the appellant in the commission of the offence. It is true that the prosecution has not examined the van puller in whose van they were found going towards Saharar Hat by the PW/4 and PW/6. We have no doubt the examination of such witness certainly would make the prosecution case more concrete, but his non-examination cannot be said to have weaken the prosecution case. 17. The third circumstance against the appellant was that at around 11/11.30 p.m. in the same night he was found coming out from “Palui Bagan” by the PW/9 Rabin Sardar who was then returning to Sujapur from Saharar Hat with his van. 17. The third circumstance against the appellant was that at around 11/11.30 p.m. in the same night he was found coming out from “Palui Bagan” by the PW/9 Rabin Sardar who was then returning to Sujapur from Saharar Hat with his van. According to the PW/9, at that time the appellant was sweating and the PW/9 took him to the house of the de facto complainant in his rickshaw van. The evidence of this witness goes very much against the appellant for two simple reasons. Firstly, because the appellant was found by the said witness at a place where the dead body of victim was discovered within an hour and Secondly, at the time he was sweating. It is also noteworthy within a very short gap the appellant and the victim were found together by the PW/4 and PW/6 and then the appellant was found at Palui Bagan by the PW/9. During his cross-examination except suggesting that the witness PW/9 was telling lie, nothing was brought out by defence to shatter his credibility. It was never the defence case that the appellant was not known to the said witness from beforehand. The learned Counsel for the appellant made a very feeble attempt to impress us that according to the said witness, he dropped the appellant at his residence and then pointed out that the appellant was a resident of a different village Dakhin Basulhat, but from the answer given by the appellant during his examination under Section 313 CrPC, we find that he claimed to have taken part in her searching. With regard to the contention of the learned Advocate of the appellant that the evidence of PW/1 and PW/2 as to when the appellant returned home alone was contradictory and while PW/1 claimed he returned home at around 10 p.m., but according to his wife PW/2 the appellant returned at about 11 p.m. Now, going through the original FIR, Ext. 1 from the exhibit file, we find that the time 10 p.m. mentioned in the FIR was over written without any authentication by the scribe or by anyone. Similarly, going through the deposition sheets of the PW/1 we find entire deposition was recorded in typing and the time on 9.5.2011 at 10.00 p.m. was inserted by hand in ink, but the same was not authenticated by the witness or the recording officer. Similarly, going through the deposition sheets of the PW/1 we find entire deposition was recorded in typing and the time on 9.5.2011 at 10.00 p.m. was inserted by hand in ink, but the same was not authenticated by the witness or the recording officer. We are, therefore, of the opinion in such a situation it will not at all be safe to act on what has been recorded in the FIR and in the deposition sheets of the PW/1 as to when the appellant returned home. On the other hand, having found that the evidence of PW/2 remain unshaken during her lengthy cross-examination that the appellant returned home at about 11 p.m., we accept her evidence that on or about 11 p.m. the appellant returned home without the victim girl. We find, although according to the PW/2, the appellant returned at around 11 p.m., but according to PW/9, the appellant was found near the ‘Palui Bagan’ at around 11/11.30 p.m. Carefully going through their evidence we find both of them gave the approximate time and not the exact time. In our opinion, the discrepancy, if any, is quite minor and negligible. 18. So far as the fourth circumstance was against the appellant, i.e., ‘chappals’ and ‘gas lighter’ were found at the place of the occurrence, we find from the evidence of PW/2 that when he returned home, the appellant was on bare foot and the same was never challenged during her cross-examination by the defence and when the appellant was examined on that score under Section 313 CrPC, he replied that the same was false. 19. It is true that urethral swab of the accused and the deceased were collected by the Investigating Officer, but the same were not sent to FSL and no finger print was taken by the Investigating Officer from her neck and that of the appellant so as to ascertain whether they matched each other. This is a pure lapse on the part of the Investigating Officer, but one has to see whether in the absence of that the prosecution case stands established or not and that is, in our opinion, really essential. This is a pure lapse on the part of the Investigating Officer, but one has to see whether in the absence of that the prosecution case stands established or not and that is, in our opinion, really essential. It may be noted in this case from the evidence of PW/4 and PW/6 it is established that the victim was last found alive in the company of the appellant and within a few hours thereafter her dead body was found in a deserted place. Therefore, under Section 106 of the Evidence Ac it is for the appellant to explain as to how and under what circumstances victim was killed and in this case no explanation being forthcoming such non-explanation certainly be considered as a strong incriminating circumstance against him. 20. Now, from the findings as above we find the following circumstances have been established against the appellant: i) On the day of immersion of goddess Kali, worshipped at the house of the de facto complainant the appellant was present there. ii) According to the PW/2, at about 9/9.30 p.m. he left the place with the victim for purchasing ‘Abir’ from Saharar Hat. iii) Both the appellant and the deceased was found together proceeding in a rickshaw van towards Saharar Hat by the PW/4 and PW/6. iv) Within an hour thereafter PW/9 found him that he was coming out from a place where subsequently the dead body of the victim was discovered, at that time he was found sweating and PW/9 dropped him at the residence of PW/1. v) When the appellant returned home he was found bare footed by the PW/2 and on the next day his Chappals were found at the place of occurrence as also his gas lighter. vi) The appellant has not come out with an explanation as to how and under what circumstances the victim was found killed and that too within a very short interval after they were found together. vii) According to the Autopsy Surgeon, the victim suffered a homicidal death due to manual strangulation and before that she was being raped. vi) The appellant has not come out with an explanation as to how and under what circumstances the victim was found killed and that too within a very short interval after they were found together. vii) According to the Autopsy Surgeon, the victim suffered a homicidal death due to manual strangulation and before that she was being raped. Now, from the aforesaid facts we are satisfied that prosecution has been able to establish its case against the appellant beyond all reasonable doubts by reliable and clinching evidences and all the said circumstances have certainly formed a chain of events lead to the conclusion that it is the appellant and none else is the author of the crime. At this stage the another circumstance which is also proved by the prosecution that after he returned when the villagers started for her searching, he was not available and fled away, is a further circumstance which lend assurance to our above conclusion. In the result, we have no doubt that the prosecution has been able to prove his case against the appellant beyond all reasonable doubts and the trial Court was justified to convict him for committing rape and murder of the victim girl. 21. Now, coming to the question of sentence we find the appellant while was examined under Section 235(2) CrPC he disclosed that on the day at about 3 p.m. he went with the victim for marketing and both returned together at about 5 p.m. thereafter he was all through present at the puja pandal along with his brother-in-law and there he came to know about her missing. He then with others started searching for her and her dead body in a naked condition was found in a garden and the pair of chappals was not belonging to them. He also claimed mercy that he has two children, wife and widow mother and there is none to look after them. However, the appellant has not examined a single witness in support of his defence although at the conclusion of his examination under Section 313 CrPC the trial Court specifically asked him whether he liked to adduce any defence witness. He also claimed mercy that he has two children, wife and widow mother and there is none to look after them. However, the appellant has not examined a single witness in support of his defence although at the conclusion of his examination under Section 313 CrPC the trial Court specifically asked him whether he liked to adduce any defence witness. However, the trial Court did not accept the submissions of the appellant and held the brutality of the crime has shaken the society and it is a rarest occasion in the locality and therefore, be termed as a rare occurrence in the country for which except death sentence, no other sentence is adequate. We are of the opinion the trial Court has definitely failed to come to a just conclusion whether or not this is a case which falls within the purview of rarest of rare cases. Furthermore, we find that the trial Court has not at all addressed it, on the question of mitigating circumstances laid down in the case of Bachan Singh Versus State of Punjab reported in (1980) 2 SCC 684 , which may justify imposition of life imprisonment instead of capital punishment even in a case of rarest of rare cases. In view of above while we uphold the order of conviction, the Death Reference is rejected and the sentence of death is converted to imprisonment for life. Office is directed to send down lower Court records together with the copy of the judgment to the Court below at once. The criminal section is directed to deliver an urgent Photostat copy of this judgment to the parties, if applied for, as early as possible. Ashim Kumar Roy, J. I agree.