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2013 DIGILAW 473 (ORI)

State of Orissa v. Pradeep Dalei

2013-11-20

BISWAJIT MOHANTY, PRADIP MOHANTY

body2013
JUDGMENT Both the death reference and the criminal appeal arise out of the judgment of conviction dated 01.10.2012 and order of sentence dated 08.10.2012 passed by the learned Sessions Judge, Sambalpur in S.T. Case No.176 of 2012. Therefore, they are heard together and disposed of by this common judgment. 2.By the impugned judgment and order, accused Pradeep Dalei has been convicted under Sections 366, 376(2)(f), 302 and 201, IPC. For the offence under Section 366, IPC, he has been sentenced to undergo R.I. for 10 (ten) years with a fine of Rs.5,000/- in default to further undergo R.I. for one year. For the offence under Section 376(2)(f), IPC, he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.7,000/- in default to further undergo R.I. for 18 months. For the offence under Section 201, IPC, he has been sentenced to R.I. for five years and pay a fine of Rs.2,000/- in default to further undergo R.I. for six months. For the offence under Section 302, IPC, he has been sentenced to death and directed to pay a fine of Rs.10,000/- without any default sentence. The reference made by the learned trial Judge under Section 366, Cr.P.C. for confirmation of the death sentence has been registered as DSREF No.3 of 2012 and the appeal preferred by the convict Pradeep Dalei challenging his conviction and sentence has been registered as CRLA No.616 of 2012. 3.The case of prosecution, in brief, is that the deceased Urmila (a minor girl of seven years) was the younger daughter of Suthul Nag and Santosini Nag (P.W.1). On the date of occurrence (02.09.2012) the deceased was residing with her parents at Rani Bagicha, Tanlapada, a slum area of Sambalpur town. Accused-appellant Pradeep Dalei, who is a resident of Mundali in the district of Cuttack and a driver by profession, was residing with his wife and two sons in the rented house of Subrat Panigrahi P.W.10 at Tamji Temple Pada. He used to regularly visit Rani Bagichha to the house of one Suru Motari, who happens to be his “Kaka-Sasura” (brother of wife’s father), situated in front of the house of the deceased. By that process, he became familiar with the residents of Rani Bagicha so also the children (including the deceased), who usually called him as ‘MAMA’. He used to regularly visit Rani Bagichha to the house of one Suru Motari, who happens to be his “Kaka-Sasura” (brother of wife’s father), situated in front of the house of the deceased. By that process, he became familiar with the residents of Rani Bagicha so also the children (including the deceased), who usually called him as ‘MAMA’. The accused-appellant, in the evening of 02.09.2012, came to Rani Bagicha (Tanlapada) by riding a bicycle (M.O.I.) and reached near the house of P.W.3, situated at a distance from the house of the informant P.W.1, where the deceased was playing with her friend (son of P.W.3) on a heap of sand. It is alleged that accused-appellant called the deceased to go with him for eating Chowmin. The deceased went to her house and informed P.W.1 that she was going with accused-appellant to eat Chowmin. Even though P.W.1 restrained her to go with accused-appellant, the deceased, who was fascinated to eat Chowmin, did not listen her mother and came back, whereafter accused-appellant taking the deceased in his bicycle went on the ring road, and by then it was about 6.00 p.m. to 6.30 p.m.. This was witnessed by P.W.3, who was then washing her related grand daughter in the water tap near her house, so also by Chakanal, Padmafulla Nayak and others. When the deceased did not return till 8.30 p.m.., P.W.1 along with P.W.3 and other inhabitants of the Tanlapada started searching for the deceased. Then P.W.1, P.W.3 and some other females of Tanlapada went to the house of the deceased at Ramji Temple Pada to ask him about the deceased as she was lastly seen going with him. The accused-appellant, who was present in his house, straightaway refused to have seen the deceased being asked by P.W.1. This raised doubt in the mind of P.Ws.1, 3 and others because they had seen the deceased going with the accused during the evening. Being asked again, the accused-appellant started trembling and got sweat. He was found nervous and faltering. The suspicion so raised against him became concrete and P.W.1 along with P.W.3 with some other persons came to Sambalpur town police station while some other residents of the “Pada” remained there with the accused-appellant. Being asked again, the accused-appellant started trembling and got sweat. He was found nervous and faltering. The suspicion so raised against him became concrete and P.W.1 along with P.W.3 with some other persons came to Sambalpur town police station while some other residents of the “Pada” remained there with the accused-appellant. In the police station, P.W.1 narrated about the incident orally and the lady Sub-Inspector of Police (P.W.11), in absence of the I.I.C., reduced the same to writing in Ext.4 and registered Sambalpur Town P.S. Case No.140 dated 02.09.2012 under Section 366, IPC against the accused-appellant. P.W.11 then took up investigation during course of which she apprehended the accused-appellant from his house, recorded the statements of P.W.1, P.W.3 and others. P.W.11 along with P.W.1 and P.W.3 visited the spot where the deceased was playing on the sand. In the police station, during interrogation by P.W.11, the accused-appellant in presence of witnesses, namely, Karunakar Behera (P.W.2) and Rama Chandra Bagarty confessed that he took the deceased with him in a bicycle on the ring road and near Gourishankar Park (locally) known as “L.K. Park”) keeping his cycle in the roadside, he took the deceased in his arms towards the side of the park and laying her down committed the intercourse. As the deceased started crying due to severe pain and bleeding from her private part, the accused-appellant got frightened and finding no way out throttled her to death and thrown her dead body inside the bush with a view to conceal it. Having confessed so, the accused-appellant led the police and the witnesses including P.W.2 to the spot and showed the dead body of the deceased lying inside the bush. Then, P.W.11 held inquest over the dead body in presence of the witnesses, prepared the inquest report Ext.3 and sent the dead body to V.S.S. Medical College and Hospital, Burla for postmortem examination. Accordingly, the case was turned to one under Sections 366, 376(2)(f), 302 and 201, IPC and on completion of investigation P.W.12, the I.I.C. of Sambalpur Town P.S., who took charge of investigation from P.W.11 on the strength of the orders of the Superintendent of Police, Sambalpur, submitted charge-sheet against the accused-appellant under the above sections. 4.On receipt of the charge-sheet, the learned magistrate took cognizance of the offences and committed the case to the Court of learned Sessions Judge, Sambalpur for trial. 4.On receipt of the charge-sheet, the learned magistrate took cognizance of the offences and committed the case to the Court of learned Sessions Judge, Sambalpur for trial. Learned trial Judge framed charge under Sections 366, 376(2)(f), 302 and 201, IPC, to which the accused pleaded not guilt and claimed to be tried. In order to prove its case, prosecution examined as many as 12 witnesses including the doctor and the investigating officers, besides exhibiting 25 documents and 9 material objects. The accused-appellant in his defence did not choose to adduce any oral evidence but, however, exhibited memo of his arrest as Ext.A. In his statement under Section 313, Cr.P.C., the accused took the plea of denial and claimed to have been falsely implicated. On culmination of trial, the accused was found guilty for commission of offence punishable under Sections 366, 376(2)(f), 302 and 201, IPC and he was convicted and sentenced as already stated hereinbefore. 5.Mr. Das, learned counsel appearing for the accused-appellant advanced the following arguments : (a)P.Ws.1 and 3 cannot be accepted as witnesses to the last seen theory their evidence suffers from major contradictions. (b)Suru Motari, Chakanala Hati and Padmafulla Nayak, who are material and most natural witnesses, having been purposefully withheld from being examined adverse inference has to be drawn against the prosecution. (c)Non-examination of Ram Chandra Bagarty and U. Tigga makes the disclosure statement Ext.2, the factum of discovery of the dead body of the victim and the inquest report Ext.3 unreliable and untrustworthy. (d)Almost all the witnesses examined on behalf of the prosecution are interested, partisan and bent upon for successful termination of the prosecution case. As such, their evidence cannot be accepted without being subjected to close scrutiny. (e)Examination of the accused-appellant by the selfsame doctor (P.W.4) who conducted autopsy over the dead body of the deceased, when other doctors were plentily available in the medical, raises grave doubt with regard maintaining transparency in the examination of accused-appellant, for which prosecution case is to be viewed with suspicion. (f)Lastly, the act of the accused-appellant will not come under the purview of “rarest of rare cases” and, therefore, in no way attract corporal punishment. 6.Mr. (f)Lastly, the act of the accused-appellant will not come under the purview of “rarest of rare cases” and, therefore, in no way attract corporal punishment. 6.Mr. B.P. Pradhan, learned Additional Government Advocate, while supporting the judgment of conviction and sentence of the trial Court, submitted that the deceased was last seen by P.W.1 and P.W.3 to have been taken by the accused-appellant in his bicycle (M.O.I.), which fact is consistent with the FIR as well as the statements of P.Ws.1 and 3 recorded by police under Section 161, Cr.P.C. Thereafter, the deceased did not return to her house. As such, in view of Section 106 of the Evidence Act burden lies with the accused to explain as to how and when the deceased parted his company. The accused-appellant having failed to discharge the burden cast upon him by Section 106 of the Evidence Act, there is no reason to disbelieve last seen theory on the face of the positive evidence of P.W.1 and P.W.3 in addition to Ext.4 (FIR) which has been marked without any objection. Mr. Pradhan further submits that Ext.2, the disclosure statement of the accused, has been exhibited without any objection. The spot wherefrom the dead body was recovered is a place beyond normal view of the others has been well established from the evidence of P.W.2, who specifically stated that accused had admitted before him that after commission of rape, he murdered the deceased and thrown her dead body near the park situated beside the ring road near Badabazar. From the postmortem report Ext.5, injury report of accused Ext.7 and chemical examination report Ext.1, the guilt of accused appellant is well established. His further submission is that when it is the categorical evidence of the prosecution that the deceased was last seen together with the accused appellant soon before her death, in absence of any explanation by the accused appellant in his statement recorded under Section 313, Cr.P.C. as to how and in what manner he left the deceased or how and in what manner the dead body was found at L.K. Park, adverse inference under Section 106 of the Evidence Act is to be drawn and it has to be treated as an additional link in the chain of circumstances to make it complete. Lastly, he submits that the accused appellant having committed rape and murder of a minor girl of seven years the case clearly falls under the category of “rarest of rare cases”. Therefore, the impugned judgment of conviction and sentence does not call for interference by this Court and resultantly the death reference is liable to be answered in the affirmative and the criminal appeal is liable to be dismissed. 7.It is not in dispute that the deceased met the homicidal death and also that she was sexually assaulted prior to that. Now, it is to be seen as to whether prosecution has been able to establish its case beyond all reasonable doubt that it is the accused appellant who sexually assaulted the deceased and then done her to death. 8.Admittedly, the conviction of the accused appellant is based upon the circumstantial evidence. The law on circumstantial evidence speaks that there must be a complete chain of evidence leading to conclusion that the accused is the only person who could have committed the offence and none else. To decide sufficiency of circumstantial evidence, the Court has to consider the total cumulative effect of all the proved facts. The Hon’ble Supreme Court of India in the case of Sharad Birdhichand Sarada v. State of Maharashtra reported in AIR 1984 SC 1622 have formulated ‘Panchsheel’ which are usually called five golden principles, as proof of a case based on circumstantial evidence, are quoted hereunder : “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from ‘may be’ established. (2) the facts 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; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) 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.” 9.Keeping the above principles in mind, this Court proceeds to analyze the oral and documentary evidence available on the LCR to find out if they conclusively prove that it is the appellant and appellant alone who sexually assaulted the deceased and committed her murder. P.W.1 is the mother of the deceased and informant of this case. Her evidence is that on 02.09.2012 at about 6.00 to 6.30 p.m. the deceased was playing in the heap of sand hoarded about 40 metres away from her house by the side of the road. The deceased came running to her and wanted to go for eating ‘Chowmin’ with the accused, who was called as “MAMA” by the deceased. Even though P.W.1 refused, the deceased went running and sat on the bicycle with which the accused was standing near the house of Kaikei P.W.3. Following the deceased, P.W.1 came to outside and seeing the deceased sitting on the bicycle of the accused again refused her, but the accused assuring her to come back soon took the deceased in his bicycle M.O.I. She further stated that while going with the accused, the deceased had worn a sleeveless printed frock and one black colour ‘chadi’. As the deceased did not return till 9.30 p.m. P.W.1 started searching but could not get her. Then, P.W.1 and P.W.3 went to the house of the accused and asked him about the deceased. The accused denied to have taken the deceased with him, but when they asked him repeatedly, he trembled and started sweating. As the deceased did not return till 9.30 p.m. P.W.1 started searching but could not get her. Then, P.W.1 and P.W.3 went to the house of the accused and asked him about the deceased. The accused denied to have taken the deceased with him, but when they asked him repeatedly, he trembled and started sweating. So, suspecting foul play P.W.1 along with one Ramachandra and some other villagers went to Sambalpur town police station and narrated the entire incident before P.W.11, who reduced the same to writing vide Ext.4 and proceeded with the investigation after registering the case. P.W.1 specifically stated that while accused was taking the deceased, at that time P.W.3 was present there. She identified M.O.I. bicycle of the accused so also frock and ‘chadi’ of the deceased which are marked as M.O.II and M.O.III respectively. P.W.3 corroborated the evidence of P.W.1 to the effect that on the date of occurrence at about 6.00 p.m. the deceased and her son were playing in the heap of the sand stacked in front of their house. At that time, she was washing her grand-daughter (by relation) at the water tap situated near the place. The accused came there in a bicycle and asked the deceased to go with him for eating ‘Chowmin’. The deceased came to the water tap, washed her hands and legs and went to her house situated nearby. Immediately thereafter the deceased returned from her house wearing a yellow colour frock followed by her mother P.W.1 who was denying her to go with the accused. But, the accused told that they were going to eat ‘Chowmin’ and would immediately be returned. Thereafter, the deceased went with the accused sitting in his bicycle. She also identified M.O.I., the bicycle of the accused. P.W.3 further stated that in the same evening at about 8.30 p.m. P.W.1 came to her house searching for the deceased. At that time, she came to know that the deceased had not returned after going with the accused. As per request of P.W.1, she went with her to the house of the accused situated near Ramji temple in search of the deceased. When P.W.1 asked the accused about the deceased, he avoided the question and denied to have any knowledge, but was found trembling and nervous so also sweating. As per request of P.W.1, she went with her to the house of the accused situated near Ramji temple in search of the deceased. When P.W.1 asked the accused about the deceased, he avoided the question and denied to have any knowledge, but was found trembling and nervous so also sweating. Seeing the attitude of the accused, they suspected some foul play and went to Sambalpur town police station where P.W.1 narrated the matter before P.W.11, who reduced the same to writing vide Ext.4 and registered the case. She proved the F.I.R. Ext. 4 and her signature Ext. 4/1. She further stated that at the time of taking the deceased with him, the accused had worn a black colour pant with a stripe shirt. P.W.3 identified the said pant marked M.O.V. and the shirt marked M.O.VI. In her cross-examination, P.W.3 specifically admitted that prior to the occurrence the accused was often coming to her ‘Pada’ and was giving chocolates and biscuits to the children of that ‘Pada’ and was also taking some of them for giving ‘Chowmin’. In the FIR the informant specifically stated that the accused called the deceased to eat ‘Chowmin’. She also stated in the FIR that when the deceased was taken by the accused, P.W.3, Chakanal and Padmafulla Nayak were present there. By way of cross-examination nothing substantial has been elicited by the defence from P.Ws.1 and 3 to demolish their evidence. In other words, there is nothing on record to disbelieve the evidence of P.Ws.1 and 3 and the minor contradictions appearing in their evidence do not in any way affect the prosecution case. Thus, from the evidence of P.Ws.1 and 3 it is crystal clear that soon before her death the deceased was found in the company of the accused to be taken by him in his bicycle. 10.P.W.2 in his evidence stated that in the occurrence evening coming to know about the missing of the deceased, who was stated to be taken away by accused Pradeep, he along with other people of the ‘Pada’ went in search of her. He specifically stated that in that night at about 2.00 a.m. to 3.00 a.m. in his presence accused admitted before police that he had taken the deceased with him, committed her murder after assaulting her sexually and thrown her dead body near the park situated beside the ring road near Badabazar. He specifically stated that in that night at about 2.00 a.m. to 3.00 a.m. in his presence accused admitted before police that he had taken the deceased with him, committed her murder after assaulting her sexually and thrown her dead body near the park situated beside the ring road near Badabazar. The police reduced such statement of accused to writing vide Ext.2, on which both he (P.W.2) and Ramachandra Bagarty, who was then present with him, as well as the accused signed. Thereafter, the accused led the police and P.W.2 along with Ramahcandra Bagarty to the park near the ring road which is locally known as ‘L.K. Park’. The accused took them towards a bush of wild grass beside the Park and shown the dead body of the deceased with the help of a light taken by the police. Thereafter, two police personnel guarded near the dead body and all of them including the accused returned to the police station. On the next day morning, at about 6.00 a.m. the police again came and called him (P.W.2) to go near the dead body. In his presence police made inquest over the dead body and prepared the inquest report Ext.3 on which he (P.W.2) put his endorsement Ext.3/1. P.W.2 further stated that he saw the deceased lying facing upward. Her legs were stretched and her private part had swelled bleeding injury. He also marked the finger marks on her neck. The black colour chadi of the deceased was lying beside. The lace of the frock of the deceased was also lying nearby. P.W.2 identified the chadi M.O.III, frock M.O.II and its lace M.O.IV. Nothing substantial has been brought out in the cross-examination to discredit his testimony. P.W.11 is the lady Sub-Inspector of Police, Sambalpur town police station. She stated that in the night of occurrence at about 10.00 p.m., P.W.1 along with others came to the police station. P.W.1 orally narrated the incident and she (P.W.11) reduced the same to writing vide Ext.4, read over and explained its contents to P.W.1, P.W.3, Ramchandra Bagarty and others, who after understanding the same put their endorsement. She (P.W.11) registered the F.I.R. as Sambalpur Town P.S. Case No.140 dated 02.09.2012 under Section 366, IPC and immediately instructed the A.S.I. Bidesi Sahu to search for the deceased and to proceed to Balibandha area to apprehend the accused. She (P.W.11) registered the F.I.R. as Sambalpur Town P.S. Case No.140 dated 02.09.2012 under Section 366, IPC and immediately instructed the A.S.I. Bidesi Sahu to search for the deceased and to proceed to Balibandha area to apprehend the accused. She examined P.W.1 and recorded her statement under Section 161 Cr.P.C. and then sent intimation to her higher officer about the incident. At about 10.10. p.m., the A.S.I. Bidesi Sahu brought the accused to the police station. She went to the ‘Pada’ where the victim was playing and examined P.W.3 and other witnesses. She further stated that during interrogation the accused admitted in presence of the witnesses, namely, P.W.2 and Ramachandra Bagarty that he took the deceased with him in his bicycle luring her to eat ‘Chowmin’ on the ring road and near Gourishankar Park locally known as ‘L.K. Park’ he committed rape on her and as the deceased started crying he killed her by throttling. P.W.11 recorded the statement of the accused vide Ext.2 on which the accused as well as the witnesses present have signed after the contents were read over and explained to them. Ext.2/2 is the signature of the P.W.11 and Ext.2/3 is the signature of the accused. Thereafter the accused led the police and other witnesses including P.W.2 and Ramachandra Bagarty tot he place where he had thrown and concealed the dead body and shown it with the help of light taken by the police. P.W.11 examined P.W.2 and Ramachandra Bagarty at the spot and commanding the two constables, namely, U. Tigga and U. Behera to guard the dead body till morning returned to the police station. P.W.11 also sent requisitions to the Scientific Officer, D.F.S.L., Sambalpur to assist in the investigation. On the next morning P.W.11 along with the accused and other police staff visited the spot where the dead body was lying and prepared a spot map Ext.19 and put her endorsement which is marked as Ext.19/1. She held inquest over the dead body of the deceased in presence of the witnesses, namely, P.W.2, Sulthu Nag and others including the accused and prepared the inquest report Ext.3 and Ext.3/2 is her signature. The dead body was found lying on the field facing upward, head towards west, legs were open and stretched, there was bleeding on private part having finger marks on her neck. The dead body was found lying on the field facing upward, head towards west, legs were open and stretched, there was bleeding on private part having finger marks on her neck. She was wearing a sleeveless yellow colour frock which was raised above the chest. She identified the frock, chadi and lace of the frock of the deceased marked as M.Os.II, III and IV respectively and proved the seizure list Ext.16 under which those M.Os. were seized and her signature marked Ext.16/2. Then, she sent the dead body to V.S.S. Medical College and Hospital, Burla for posmtortem examination by issuing dead body challan with command to constables U. Tigga and U. Behera. Thereafter, she proceeded to the house of the accused at Ramji Temple Pada and there the accused produced the dresses which he had worn at the time of occurrence, i.e., one black colour full pant, one blue striped full shirt, one white banian and one read colour chadi with suspected stains of blood along with one read colour bicycle which were seized under seizure list Ext.17. She proved the said seizure list Ext.17 and her signature thereon marked Ext.17/2. Returning to the police station she sent requisition to the local Tahasildar for demarcation of the spot where the dead body was lying and sent the accused for his medical examination to V.S.S. Medical College and Hospital, Burla vide Ext.21. At about 2.45 P.M., constables U. Tigga and U. Behera returned to the police station after the postmortem examination and produced the frock of the deceased, the nail clippings in ne sealed envelope, vaginal smear and vaginal swab of the deceased collected by the doctor and those were seized by her under Ext.12. In cross-examination P.W.11 has admitted that at about 2.45 p.m. on 03.09.2012 the accused was arrested and that prior to his arrest except the F.I.R. allegations and the statements of the witnesses, there was no other material surfaced against him. It is not a fact that prior to disclosure by the accused and his arrest it was already within the knowledge of P.W.11 about commission of offences of rape and murder and the location of the dead body. It is not a fact that P.W.11 took the signature of the accused and the witnesses on a blank paper and thereafter inserted the writings in the disclosure memo under Ext.2. It is not a fact that P.W.11 took the signature of the accused and the witnesses on a blank paper and thereafter inserted the writings in the disclosure memo under Ext.2. On careful perusal of the evidence of P.Ws.2 and 11, it is seen that the appellant while in police custody made disclosure statement, led the police as well as the witnesses to the place of concealment and gave discovery of the dead body of the deceased. In other words, the fact of discovery of the dead body upon the information given by the appellant while in police custody is established in clear and unimpeachable terms through the evidence of P.Ws.2 and 11. The credibility of P.W.2 in regard to the above has remained unshaken. 11.P.W.4 is the medical officer who conducted autopsy over the dead body of the deceased and also examined the accused. On examination he found following injuries on the body of the deceased. 1. External Injuries :- “(i)Abrasion of size 2 cm. x 2 cm. on the back over left scapular body. (ii)Abrasion of size 1 cm. x 0.5 cm. over the left zygoma of the face 1 cm. in front of the ear. (iii)Abrasion of size 1 cm. x 0.5 cm. over the left angle of mandible. (iv)Contusion more or less an elliptical in shape of size 1.5 c.m. x 1 cm. where the upper margins are abraded, 03 in number, present one below another with 0.5 cm. gap on the right side neck, 2 cm. below and away from right angle of mandible. (v)Contusion of size 2 cm. x 1.5. cm. having abraded upper margin present on the left of neck 3 cm. below the angle of mandible. (vi)Lacerated wound of size 2 cm. x 1 cm. and 2 cm. x 0.5 cm. with bleeding present on the lateral vaginal wall on the posterior border and into muscle deep. (vii)Lacerated wound of size 2.5 cm. x 0.5 cm. extended from the posterior border of the vaginal wall to the perineum into muscle deep with bleeding and the dilatation of the vaginal canal and its wall. 2. Internal Injuries :- (i)The sternoclcidmastoid muscles of the neck contused with extravasation of blood under the external injury Nos.(iv) & (iv). (ii)The haemorrhage detected to the posterior wall of pharynx and thyroid capsules corresponding to the external injury Nos. (iv) & (v). 2. Internal Injuries :- (i)The sternoclcidmastoid muscles of the neck contused with extravasation of blood under the external injury Nos.(iv) & (iv). (ii)The haemorrhage detected to the posterior wall of pharynx and thyroid capsules corresponding to the external injury Nos. (iv) & (v). (iii)The hyoid bone on its left greater horn fractured corresponding to external injury Nos.(iv) 7 (v). (iv)There is petechial haemorrage to the white substances of the brain with congestion and dilemma.” He opined that the external injury Nos. i, ii, iii, iv, v and vii and the internal injuries are ante-mortem in nature. The external injury Nos. i, ii & iii could have been caused by rough contact. The external injury nos. iv & v could have been caused by finger tips and consistent with throttling. The external injury nos iv & v and its corresponding internal injuries are fatal in ordinary course of nature. The injury inflicted to the genitalia, i.e., external injury nos. vi & vii could have been caused by the forceful thrusting of any object of organ. The death was due to asphyxia resulted from the injuries to the neck. The time since death was 12 to 18 hours from the time of examination. He further opined that the death was homicidal in nature. The external injury nos. i, ii and iii are the signs and symptoms of resistance and struggle by the victim. In course of applying force for throttling, there is every possibility of transfer of human tissue into the nail of the person who applied force. He proved the postmortem report Ext.5 and his signature thereon marked Ext.5/1. P.W.4 further stated that pursuant to the query of the I.O., he opined that the external injury nos. vi and vii detected on the dead body of the deceased could be possible by forceful thrusting of the male organ (penis). P.W.4. also stated to have examined the accused on police requisition and opined that he found nothing to suggest that the accused is incapable of sexual intercourse. The injury detected to the external urethral meatus was due to pressure and friction and the parallel contusions detected on the body were possible by blunt or by a linear object of a weapon. He also collected the sample semen, urethral swab, urethral smear, blood for VDRL and handed over to the police for necessary action with plucked pubic hair. The injury detected to the external urethral meatus was due to pressure and friction and the parallel contusions detected on the body were possible by blunt or by a linear object of a weapon. He also collected the sample semen, urethral swab, urethral smear, blood for VDRL and handed over to the police for necessary action with plucked pubic hair. He proved the medical examination report of the accused marked as Ext.7 including the police requisition and his signature marked Ext.7/1. The chemical examination report reveals that the vaginal swab of the deceased has been found blood with semen of human origin of Group ‘AB’. The blood grouping of the accused has been detected as ‘AB’. Thus, from the postmortem examination report it is clear that the deceased was raped by forceful thrusting of penis into her private part and from the report of medical examination of the accused (Ext.7) and the chemical examination report (Ext.1) it transpires that it is the accused who committed rape on the deceased. 12.P.W.5 is the Headmistress of Jharuapada Primary School, Sambalpur. She has proved the school admission register Ext.9 wherein at page 10 the date of birth of the deceased has been mentioned as 11.09.2004. From the evidence of this witness, it is proved that the deceased at the time of occurrence was a minor. P.W.6 is the Revenue Inspector of Sadar-I Circle, Sambalpur under Tahasil-Sambalpur. He has been examined by the prosecution to prove Ext.11, the sketch map of the spot where the dead body of the deceased was lying. P.Ws.7 and 8 are police constables of Sambalpur town police station. P.W.7 has proved Exts.12 and 13 whereas P.W.8 has proved Exts.14 and 15.. P.W.9 is an independent witness. He specifically stated that on 03.09.2012 in the morning at about 7.20 A.M., a black colour ‘chadi’ and a lace of a lady’s frock were lying near the boundary wall of a park at ring road which is a bushy area. In his presence, police seized the said ‘chadi’ and lace and prepared the seizure list which is marked as Ext.16 and Ext.16/1 is his signature thereon. In his presence, police seized the said ‘chadi’ and lace and prepared the seizure list which is marked as Ext.16 and Ext.16/1 is his signature thereon. He further stated that on the same day at about 8.00 P.M. in his presence police seized one red colour bicycle and wearing apparels of the accused, on which blood stains were appearing, under seizure list Ext.17 from the house of the accused on being produced by him saying that at the time of occurrence he had worn those dresses. He proved the said seizure list Ext.17 and his signature thereon marked Ext.17/1. He also identified the wearing apparels of the accused marked as M.Os.V to VIII. P.W.10 is the landlord in whose house at Ramji Temple Pada the accused was residing on rent for last two years with his wife and two sons. He stated that for last two months from the date of occurrence the accused was residing in his house alone, as his wife left him due some dispute, and that about 10/12 days back on one Sunday evening the accused went out of the house with his bicycle. P.W.12 is the second I.O. in this case. He stated that on 03.09.2012 at about 3.00 P.M. he took charge of investigation from P.W.11. At about 3.30 P.M., sent intimation to his higher authority as well as the S.D.J.M., Sambalpur about turning of the case from Section 366, IPC to Sections 366/376(2)(f)/302/201, IPC. At about 4.00 P.M., he visited the spots at Tanlapada as well as near L.K. Park along with the Additional Superintendent of Police, Sambalpur. At about 5.45 P.M., he seized one envelope containing urethral swab and smear of the accused and another sealed envelope containing plucked pubic hair, gauge, soaked and dried with semen and nail clippings of the accused. He also examined the witnesses, received the postmortem examination report and made some query to the medical officer. He also seized the admission register of Jharuapada Primary School from P.W.5. On 7.9.2012, P.W.12 prayed the learned S.D.J.M., Sambalpur for sending the seized articles for chemical examination and accordingly on the same day all the articles were sent for chemical examination to the R.F.S.L., Sambalpur duly forwarded by the S.D.J.M. On completion of investigation, he submitted charge sheet against the accused. On 7.9.2012, P.W.12 prayed the learned S.D.J.M., Sambalpur for sending the seized articles for chemical examination and accordingly on the same day all the articles were sent for chemical examination to the R.F.S.L., Sambalpur duly forwarded by the S.D.J.M. On completion of investigation, he submitted charge sheet against the accused. 13.On analyzing the oral and documentary evidence available on record, this Court finds that the prosecution has been able to prove beyond reasonable doubt the theory of last seen of the accused with the deceased through the evidence of P.W.1 and P.W.3 so also discovery of the dead body of the deceased at the instance of the appellant through P.W.2 and P.W.11. It has also been able to prove by adducing medical evidence, i.e., postmortem examination report of the deceased (Ext.5), medical examination report of the accused (Ext.7) and the evidence of the doctor P.W.4, who had conducted such examinations and submitted the reports, that the deceased died homicidal death due to strangulation, that there were injuries with bleeding on the genitalia of the deceased which could be possible by forceful thrusting of the male organ (penis) and that there was also injury on the external urethral meatus with abrasion of the accused which could be caused due to pressure and friction. The prosecution has further proved through the chemical examination report (Ext.1) that the vaginal swab of the deceased was found blood with semen of human origin of Group ‘AB’, which is the blood group of the accused, and there were also presence of patches of blood on the ‘chadi' and full pant of the accused of human origin of Group-A, which was the blood group of the deceased. These circumstances having been seen thoroughly, the cumulative effect of all those proved facts taken together is conclusive in establishing the guilt of the accused excluding every hypothesis of innocence of the accused. The chain of circumstances is found complete unerringly pointing the guilt of the accused. By taking into account the cumulative effect of the above evidence, this Court is of the opinion that the present appellant was the author of the crime and as such there is no scope for this Court to interfere with such finding of the trial Court. 14.Now, the residential question that remains to be adjudicated is whether the death penalty is the appropriate punishment in the case. Mr. 14.Now, the residential question that remains to be adjudicated is whether the death penalty is the appropriate punishment in the case. Mr. B.P. Pradhan, learned Additional Government Advocate submits that the case is clearly coming under the purview of “rarest of rare cases” as per the decisions of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 and Machi Singh v. State of Punjab, 1983 (3) SCC 470 taking into consideration the gravity of the offence and the age of the deceased was seven years. He further submits that it is a clear case of rape and could blooded murder of a helpless innocent child. The offence was committed outrageously. The manner in which the girl was abducted, raped and murdered clearly revels the depravity of the mind of the accused. Mr. Pradhan further submits that the reasons given by the learned Sessions Judge while sentencing the appellant to death clearly make out the present case to be one of rarest of rare category and in such background no interference is called for in the matter. Mr. S.P. Das, learned counsel for the accused-appellant submits that the reasons given by the learned Sessions Judge in favour of awarding extreme punishment of death penalty are not the special reasons and the learned Sessions Judge has ignored very many mitigating circumstances in favour of the accused, namely, the accused has no criminal antecedents and there is nothing to show that he cannot be reformed and further that there is nothing to show that he would be a permanent threat to the society and that there is no evidence of premeditation and there is no adverse report with regard to his behaviour in custody. Moreover he submits that the accused is of young age. Lastly, he submits that this being the case based on circumstantial evidence as per settled principles of law extreme punishment, i.e., death penalty is not called for. In support of his argument, he relies on decisions of the cases in Mahinder Singh v. State of Punjab, AIR 2013 SC 3622 , Bachan Singh v. State of Punjab, AIR 1980 SC 898 , Mohd, Chaman v. State (NCT of Delhi), (2001) 2 SCC 28 , Rahul v. State of Maharashtra, 2005 (10) SCC 322 and Shankar Keshar Rao Khade v. State of Maharashtra; 2013 (55) OCR (S.C.) 623. 15.Perused the judgments cited above. 15.Perused the judgments cited above. In the case of Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28 , the accused, a 30 years old man, had raped and killed a one and a half year old child. Despite concluding that the crime was serious and heinous and that the accused had a dirty and perverted mind, the Supreme Court converted the death penalty to one of imprisonment for life since he was not such a dangerous person who would endanger the community and because it was not a case where there was no alternative but to impose the death penalty. It was also held that a humanist approach should be taken in the matter of awarding punishment. It was held : “Coming to the case in hand, the crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It reveals a dirty and perverted mind of a human being who has no control over his carnal desires. Then the question is: Whether the case can be classified as of a “rarest of rare” category justifying the severest punishment of death. Treating the case on the touchstone of the guidelines laid down in Bachan Singh, Machhi Singh (1983) 3 SCC 470 ) and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can be appropriately called one of the “rarest of rare cases” deserving death penalty. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. It is our considered view that the case is one in which a humanist approach should be taken in the matter of awarding punishment.” In the case of Mahinder Singh v. State of Punjab, AIR 2013 SC 3622 , the accused committed murder of his wife and daughter in the background for inimical relationship between them on account of criminal cases registered against him by his wife for committing rape on his minor daughter for which he was sentenced to R.I. for 12 years and for attacking her after release on parole. In that case the learned Sessions Judge convicted the accused under Section 302, IPC and sentenced him to death. The death sentence awarded to him was converted by the Hon’ble Supreme Court of India to one of life imprisonment. It was held there that : “17. In life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end anything to do with the life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same. 18. “Rarest of rare” dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the Court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. 19. Treating the case on the touchstone of the guideline laid down in Bachan Singh ( AIR 1980 SC 898 ) (supra), Machhi Singh ( AIR 1983 SC 957 ) (supra) and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can appropriately be called the “rarest of rare” case warranting death penalty. We also find it difficult to hold that the appellant is such a dangerous person that sparing his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no other alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the accused. We are also not satisfied that the circumstances of the crime are such that there is no other alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the accused. In our considered view, this case is the one in which humanist approach must be taken in the matter of awarding punishment.” In such background, let us scan the observations made by the learned Sessions Judge on the question of death sentence. 16.While dealing with the aggravating circumstances at paragraph 83 and 84 of the judgment under appeal, the learned Sessions Judge has time and again referred to past activities of the accused which according to him led to the inference that the accused was cruel to his own wife and children for which they left him. On his point this Court finds that the only relevant deposition is that of P.W.10. In his deposition he has only stated that the wife of the accused has left him as they had some disputes. Thus, the finding of the learned Sessions Judge on the accused being cruel to his own family members is not based on any evidence. Secondly, the learned Sessions Judge has gone wrong in saying that “even if struggled with best efforts to find out any mitigating circumstances, it is hard to get if any in favour of the convict.” According to this Court, the learned Sessions Judge should have considered the following mitigating circumstances, namely, the accused has no criminal antecedents and there existed no evidence to show that his reformation is not at all possible or that by doing a singular act he has become a permanent threat/illness to the society in future. Other mitigating factors in favour of the appellant-accused are there exist no premeditation, no adverse report relating to his behaviour in custody and that the conviction is based on circumstantial evidence. On this aspect of circumstantial evidence, Mr. Das learned counsel for the accused relied on a decision of the Hon’ble Supreme Court of India reported in (2007) 11 SCC 467 (Bishnu Prasad Sinha and another v. State of Assam) which involved rape and murder of a child aged 7 to 8 years. There Hon’ble Supreme Court of India at paragraph-55 has made it clear that if the prosecution case is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. There Hon’ble Supreme Court of India at paragraph-55 has made it clear that if the prosecution case is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. In that case both the appellants were sentenced to undergo imprisonment for life in place of death penalty as awarded by the learned Sessions Judge. Further, it may be noted here that while awarding the death sentence, the learned Sessions Judge at paragraph-90 of the judgment has got influenced by his emotions while conducting the trial. But, the narrations at Paragraph-90 cannot form part of aggravating circumstances in order to sentence the accused to death. 17.In view of the above ratio decided by the above noted cases and keeping in view the mitigating circumstances as delineated earlier and taking a humanistic approach we come to a conclusion that mitigating circumstances outweigh the aggravating circumstances. Accordingly, this Court comes to the conclusion that severest of punishment, i.e., death penalty is not proper in this case. At the same time, this Court is not inclined to impose life imprisonment as generally administered, which entails release of the convict after incarceration for about fourteen years. This Court, therefore, comes to the conclusion that the accused/convict should be sentenced to undergo imprisonment for at least 25 (twenty-five) years, in terms of the ratio decided in the case of Swamy Shraddananda @ Murali Manohar Mishra v. State of Kerala reported in 2008 Crl. Law Journal 3911. 18.In the result, this Court upholds the conviction of the accused under Sections 366/376(2)(f)/302/201, IPC but sets aside the punishment of death imposed on him and modifies the sentence to punishment of imprisonment for life, with the further condition that in this case remission of sentence should not be considered before completion of 25 years of incarceration. The reference made by the learned Sessions Judge is accordingly discharged and the Criminal Appeal filed by the appellant is partly allowed. 19.The Death Reference and Criminal Appeal are accordingly disposed of. Death reference and Criminal Appeal disposed of.