JUDGMENT : BISWAJIT MOHANTY, J. ” The present Death Reference No.3 of 2013 arises out of Criminal Trial No.67 of 2011 in which the learned Sessions Judge, Nabarangpur has held the accused guilty of offence under Sections 376/302 of I.P.C. and accordingly convicted him thereunder. On such conviction, the learned Sessions Judge, Nabarangpur sentenced the convict to death under Section 302 of I.P.C. read with Section 376 of I.P.C. and further directed that the convict be hanged by neck till his death. The learned Sessions Judge further directed that the proceedings be submitted to this Court for confirmation of death sentence. Challenging the aforesaid order of conviction and sentence, the convict Mishra Paraja has filed CRLA No.242 of 2013 before this Court. In such background, the above noted death reference and criminal appeal having been heard together are being disposed of by this common judgment. 2. Prosecution case in brief is that on 27.02.2011 at about 4.00 p.m., the deceased, Lachhandei Gond was sitting under a mango tree bordering the land of P.W.6 and P.W.8. P.W.6 is the wife of P.W.8 and at that time both of them were working in their field. The convict-appellant at that point of time came to the spot and removed the wearing saree of the deceased and committed rape on her. When the deceased cried, P.W.6 rushed to the spot and P.W.8 proceeded to the village to call the villagers. On reaching the spot, P.W.6 dragged out the convict-appellant, who was then sleeping over the deceased in naked condition and was having sex with her. P.W.6 dealt two slaps to the convict-appellant and admonished him. Being infuriated, the convict-appellant chased away P.W.6 in naked condition saying that he would also commit rape to P.W.6 and would kill her. So, P.W.6 ran away to the village out of fear to inform the villager. Thereafter, both P.W.6 and her husband, P.W.8 came to the spot along with other villagers and found the dead body of the deceased. According to P.W.8, he reached the spot about 10 minutes after the incident. So, P.W.6 ran away to the village out of fear to inform the villager. Thereafter, both P.W.6 and her husband, P.W.8 came to the spot along with other villagers and found the dead body of the deceased. According to P.W.8, he reached the spot about 10 minutes after the incident. P.W.1, who happens to be the informant and son of the deceased on being informed by P.W.8 also rushed to the spot along with other villagers and found that his mother was already dead and the convict-appellant was carrying the dead body of his mother in naked condition putting her on his shoulder towards ' Masanipada-” burial ground. Immediately P.W.1 along with others detained the convict-appellant there and came to Umerkote P.S. to lodge the F.I.R. under Ext. 8. The said F.I.R. under Ext. 8 was scribed by P.W.16 as per the instruction of P.W.1. On the strength of the said report, the police registered Umerkote P.S. Case No.46 of 2011 and took up the investigation. During course of investigation, the I.O. examined the informant and others, conducted the inquest over the dead body of Lachhandei Gond. The police also made requisition for post-mortem examination of the dead body of the deceased. They also seized the wearing apparels of both the accused and deceased and sent different materials for chemical examination to Regional Forensic Science Laboratory, Berhampur, Ganjam. The police arrested the convict-appellant on 27.02.2011 and forwarded him. On completion of investigation, the police submitted charge-sheet against the convict-appellant on 24.06.2011 for offences under Sections 302/376/294/506 of I.P.C. The learned J.M.F.C., Umerkote by order dated 12.08.2011 took cognizance of offence under Sections 302/376/294/506 of I.P.C. in G.R. Case No.121 of 2011 arising out of Umerkote P.S. Case No.46 of 2011. Subsequently, the learned J.M.F.C. committed G.R. Case to the court of learned Addl. Sessions Judge, Nabarangpur. On the basis of said commitment, Criminal Trial No.67 of 2011 was registered in the court of learned Sessions Judge, Nabarangpur. By order dated 21.08.2012, the learned Sessions Judge, Nabarangpur framed charges under Sections 302/376 of I.P.C. against the present convict-appellant. The convict-appellant stood his trial under Sections 302/376 of I.P.C. for committing murder and rape on the deceased, Lachhandei Gond. The plea of the convict-appellant before the learned Sessions Judge was of complete denial. 3. In order to establish the charges against the convict-appellant, the prosecution examined as many as 18 witnesses. The convict-appellant stood his trial under Sections 302/376 of I.P.C. for committing murder and rape on the deceased, Lachhandei Gond. The plea of the convict-appellant before the learned Sessions Judge was of complete denial. 3. In order to establish the charges against the convict-appellant, the prosecution examined as many as 18 witnesses. P.W.1 is the informant, who is the son of the deceased. P.Ws 1, 2, 3, 4, 5, 7, 10 and 12 are post occurrence witnesses, who have come to the spot after the alleged occurrence. P.Ws.6 and 8 claimed to have seen part of the occurrence, particularly relating to rape. P.W.9 is the doctor who conducted the post-mortem of the deceased and prepared post-mortem report under Ext.4. P.W.14 is the doctor, who examined the convict-appellant on police requisition and prepared his report under Ext.6. P.W.16 is the scribe of the F.I.R. (Ext.8). P.W.13 is a witness to the seizure. P.Ws.11 and 15 have not deposed anything regarding occurrence. P.W.17 and P.W.18 are the Investigating Officers. 4. The convict-appellant did not lead any evidence in his defence. After closure of prosecution evidence, the convict-appellant was examined under Section 313 of Cr.P.C. He answered the questions in negative and took the plea that he has been falsely implicated by the villagers on account of enmity. Upon completion of trial, the learned Sessions Judge came to the conclusion that the prosecution has established its case beyond all reasonable doubt and accordingly found the convict-appellant guilty under Sections 302/376 of I.P.C. and sentenced him to death under Section 302 of I.P.C. The learned Sessions Judge did not inflict separate punishment on the convict-appellant in respect of offence of rape punishable under Section 376 of I.P.C. 5. In assailing the impugned judgment, Shri D. P. Das, learned counsel for the convict-appellant submitted that as regards commission of offence of rape, there is absolutely no evidence whatsoever to sustain the charge and that the trial court has relied on conjectures and surmises to record a conviction of appellant under Section 376 of I.P.C. According to him apart from the fact that there is no oral evidence from the side of the victim since she died, the medical evidence totally rules out commission of offence of rape in the instant case. In this context, he relied on the evidence of doctors, P.W.9 and P.W.14. In this context, he relied on the evidence of doctors, P.W.9 and P.W.14. P.W.9 conducted autopsy on the dead body of the deceased and P.W.14 examined the accused on police requisition. In this context, he submitted that here is a case where medical evidence is totally inconsistent with ocular evidence and this totally improbabilises the version of eye-witnesses (P.Ws 6 & 8) with regard to commission of rape. In such background, he submitted that under such circumstances medical evidence is to be preferred over the version of eye-witnesses. According to him, this is not a case of variance between oral evidence of eye-witnesses and that of medical evidence. This is a case, where medical evidence totally rules out the versions of the eye-witnesses. In this context, he relied on the decisions of Hon-” ble Supreme Court as reported in AIR 2008 SC 533 (Kapildeo Mandal & others v. State of Bihar) and (2009) 11 SCC 566 : (AIR 2009 SC (Supp) 272) (State of U.P. v. Dinesh). He further submitted that the decisions relied upon by the learned Sessions Judge at para-19 of the judgment for giving primacy to eye-witness are factually distinguishable. Secondly, he submitted that not only the medical evidence but also the chemical examination report and other circumstances disprove the allegation of rape. According to him as per the chemical examination report submitted under Ext.13, stains of semen, stains of blood and foreign hairs could not be detected in the exhibits supplied under Ext.12. Thirdly, he submitted that there exists great contradiction in the evidence of P.W.6 and the statements made by P.W.17 during the cross-examination. In this context, he submitted that in the cross-examination, P.W.17 stated that P.W.6 never stated before him that at the time of commission of rape on the deceased, she was in naked condition and the accused in naked condition was sleeping on her while committing rape and that the accused was throttling the neck of deceased. Though such things as pointed out by P.W.17 were not put to P.W.6 in her crossexamination, however, the learned trial court could have looked into the case diary and on that basis should have thrown out the version of P.W.6 relating to rape. In this context, Mr. Though such things as pointed out by P.W.17 were not put to P.W.6 in her crossexamination, however, the learned trial court could have looked into the case diary and on that basis should have thrown out the version of P.W.6 relating to rape. In this context, Mr. Das relied on two decisions as reported in 1997 Criminal Law Journal 398 (Manohar v. State of Karnataka) and AIR 1989 Supreme Court 144 (Mukund Lal and another v. Union of India and another). As regards conviction under Section 302 of I.P.C. for causing murder is concerned, according to Shri Das, evidence from the side of prosecution is equally deficient. Though the deceased is found to have died out of asphyxia due to strangulation, admittedly, nobody has seen the assault on the deceased by the convict-appellant. So far as use of last seen theory by the trial court is concerned, Mr. Das, submitted that the same cannot be the sole basis for holding a person guilty of murder. In this context, he relied on a decision reported in AIR 1979 SC 1620 (Lakhanpal v. The State of Madhya Pradesh). Secondly, he submitted that in any criminal case, motive plays an important role. But here is a case, according to him, where the prosecution has not come up with a specific reason as to why the convict-appellant would take away the life of the deceased. Since the allegation of rape is found to be false, there is no reason as to why the convict-appellant would do away with the life of the deceased. In absence of any motive and whatsoever, causing murder of an old lady does not stand to reason. Thirdly, he submitted that there exists no scientific evidence to connect the accused with the murder of the deceased. According to him, in the post-mortem report, it has been found that there are linear abrasions over the right chest below the breast and those resembled nail marks and if the accused is the author of the crime then in all probabilities his nail clippings would have given positive sign. Though nail clippings were sent for chemical examination to Regional Forensic Science Laboratory, Berhampur, however, vide Ext.13, it has been made clear that nothing (stains of blood) has been detected on the nail clippings. Though nail clippings were sent for chemical examination to Regional Forensic Science Laboratory, Berhampur, however, vide Ext.13, it has been made clear that nothing (stains of blood) has been detected on the nail clippings. Fourthly, he submitted that so far as allegation of carrying dead body of the deceased is concerned, this allegation is unreliable, as evidence on this count is highly discrepant. In this context, he has drawn the attention of this Court to the evidence of P.Ws.1, 2, 6, 8 and 10. According to him a combined reading of the evidence of the above noted witnesses clearly point out serious contradictions and therefore no reliance can be placed on them and accordingly, the convict-appellant should be acquitted. With regard to most of the decisions cited by the trial court, he submitted that most of those are factually distinguishable and rest does not lay down any principle which would go against the convict-appellant. 6. Shri B. P. Pradhan, learned Addl. Government Advocate while defending the impugned judgment, submitted that so far as conviction under Section 376, IPC is concerned, evidence of eye-witnesses like P.Ws.6 and 8 is clear and though both the above noted witnesses were cross-examined at length but nothing substantial has been brought out to demolish their testimony. Therefore, a clear case for conviction under Section 376 of I.P.C. is well made out. Secondly, with regard to discrepancy in the medical evidence, he submitted that law is well settled that medical evidence cannot be relied upon to falsify the evidence of eye-witnesses. To discard the testimony of eye-witnesses simply on the strength of opinion expressed by the doctor is not conducive to the administration of criminal justice. According to him, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. Opinion of the doctor cannot have any binding force and cannot be said to be the last word. In this context, Mr. According to him, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. Opinion of the doctor cannot have any binding force and cannot be said to be the last word. In this context, Mr. Pradhan, relies on the decision reported in (2003) 12 SCC 606 : (AIR 2004 SC 1053) (Ramananda Yadav v. Prabhunath Jha and others), (1979) 4 SCC 349 : ( AIR 1979 SC 1194 ) (Mange v. State of Haryana), (1992) 3 SCC 204 : (1992 AIR SCW 1480) (Madan Gopal Kokkad v. Naval Dubey and another), (2008) 13 SCC 515 : ( AIR 2008 SC 1747 ) (Ram Swaroop v. State of Rajasthan), (2004) 10 SCC 692 : ( AIR 2004 SC 2158 ) (Main Pal and another v. State of Haryana and others), (2006) 1 SCC 283 : ( AIR 2006 SC 508 ) (Vishnu v. State of Maharashtra). Thirdly, he submitted that it is well settled that in case the victim is a married lady, there would be hardly any chance of suffering any internal injury on her private part in case of rape and further that absence of injury in the private part will not by itself falsify the case of rape nor the same can be construed as the evidence of consent. Mainly relying on the version of eye-witnesses, P.Ws.6 and 8, he submitted that the offence under Section 376 of I.P.C. has been squarely proved and the convict-appellant has been rightly convicted by the trial court under Section 376 of I.P.C. With regard to conviction under Section 302 of I.P.C., firstly he submitted that the court below has correctly relied on the last seen theory as one of the circumstances to convict the accused under Section 302 of I.P.C. According to him, last seen theory comes into play where the time gap between the accused and deceased were last seen alive and when the deceased was found dead is so short that possibility of any person other than the accused being the author of crime becomes impossible. In this case, he submitted that the deceased was last seen alive with the convict-appellant near the mango tree at about 4.00 m.m. as per the evidence of P.Ws.6 and 8. P.W. 8 have specifically stated in his evidence that except the deceased and convict-appellant, nobody else was available near the spot. In this case, he submitted that the deceased was last seen alive with the convict-appellant near the mango tree at about 4.00 m.m. as per the evidence of P.Ws.6 and 8. P.W. 8 have specifically stated in his evidence that except the deceased and convict-appellant, nobody else was available near the spot. Shortly thereafter, at about 4.10 p.m., deceased was found dead and her dead body was in the custody of the convict-appellant. In this context, he relied on the evidence of P.W.8 who clearly says in the cross-examination that after sending his wife (P.W.6) to the spot, he ran towards the village and on being accompanied by the villagers, he ran to the spot from the village and reached there about 10 minutes after the incident. Further, P.Ws.10 and 12 have specifically stated that the convict-appellant was going towards ' Masanipada-” carrying the dead body of the deceased at about 4.00 p.m. According to Shri Pradhan, the evidence of P.Ws. 6, 8, 10 and 12 remains intact and have not been demolished in the cross-examination. Thus, the last seen theory has been successfully established by the prosecution. In this context, he relies the decisions of the Hon-” ble Supreme Court reported in (2005) 3 SCC 114 : ( AIR 2005 SC 1000 ) (State of Uttar Pradesh v. Satish), (2013) 55 OCR (SC) 623 : (AIR 2013 SC (Cri) 1230) (Shankar Kishanrao Khade v. State of Maharashtra), AIR 2007 SC 144 (State of Rajasthan v. Kashiram). Secondly, Mr. Pradhan, relied on Section 106 of Indian Evidence Act, 1872 and submitted that the convict-appellant has given no explanation as to how the death of the lady has occurred. Keeping in mind the peculiar circumstances of the case, the very fact that the lady was alive at 4.00 p.m. in the company of the convict-appellant and 10 minutes after she suffered death on account of asphyxia due to strangulation warrants that the cause of death could only be within the special knowledge of the convict-appellant and none else. He submitted that it is clear from the evidence of P.W.8 that except the convict-appellant and deceased, none-else was present at the spot. Thus, the cause of death can only be within the knowledge of the convict-appellant. He submitted that it is clear from the evidence of P.W.8 that except the convict-appellant and deceased, none-else was present at the spot. Thus, the cause of death can only be within the knowledge of the convict-appellant. Since he has not offered any explanation on the cause of death of the deceased, he (appellant) has failed to discharge the burden cast upon him under Section 106 of Indian Evidence Act and accordingly he has to suffer conviction. In this context, Shri Pradhan has relied upon the decisions of the Hon-” ble Supreme Court reported in AIR 1956 SC 404 (Sambhu Nath Meher v. State of Ajmer), (2007) 3 SCC 755 : (AIR 2007 SC (Supp) 61) (State of Goa v. Sanjay), AIR 2007 SC 144 (State of Rajasthan v. Kashi Ram), (2013) 54 OCR (SC) 218 : (2012 AIR SCW 5786) (Sathy Narayanan v. State represented by Inspector of Police). Thirdly, he submitted that the convict-appellant in his examination under Section 313 of Cr.P.C. also did not offer any explanation with regard to incriminating circumstances being brought on record against him, particularly, the fact of deceased being last seen alive with accused and dead body of the deceased being found in the custody of the accused within a very short gap. On the contrary, the convict-appellant took the plea of complete denial. This, therefore, provides a missing link in the chain of circumstances which proves his guilt beyond reasonable doubt. Fourthly, he submitted that P.W.9, the doctor has opined that the cause of death of the deceased was asphyxia in nature due to strangulation. P.W.9 has also clearly opined that the injuries were ante-mortem in nature. Though P.W.9 was cross-examined, his evidence remains un-demolished. Fifthly, he submitted that the convict-appellant was caught red handed by P.Ws.1 and 10 while he was carrying the dead body in a naked condition. Further, P.Ws.10 and 12 have stated that the convict-appellant was carrying the dead body towards ' Masanipada-” (burial ground). He also submitted that the motive of the convict-appellant was clear from the fact that he killed the deceased in order to hide his ghastly crime relating to commission of offence of rape. Accordingly, he submitted that so far as the offence under Section 302 of I.P.C. is concerned, the chain of circumstances is complete and same clearly establishes that the convict-appellant is the author of the crime and none else. Accordingly, he submitted that so far as the offence under Section 302 of I.P.C. is concerned, the chain of circumstances is complete and same clearly establishes that the convict-appellant is the author of the crime and none else. In this context, he relied on the decisions of the Hon-” ble Supreme Court as reported in AIR 1984 SC 1622 (Sharad Birdhichand Sarada v. State of Maharashtra). Lastly, he submitted that the present case comes under the category of rarest of rare case and rightly death sentence has been awarded by the court below. 7. The convict-appellant neither disputed nor challenged the fact that the death of Lachhandei Gond is homicidal in nature. It may be noted here that in order to prove the nature of death of Lachhandei Gond, prosecution has relied on evidence of P.W.9, who conducted the post-mortem examination on the dead body of the deceased. In course of post-mortem examination, P.W.9 found as follows: External injuries: (i) One abrasion of size 2 c.m. x 2. c.m. x skin deep over right scapular region (two numbers) situated 2 c.m. apart. (ii) Abrasion of size 6 c.m. x 7 c.m. x skin deep situated below right axillar. (iii) Linear abrasions present over right chest below the breasts (4 in number). They resembled impression of nail markings. (iv) Abrasion of size 2 c.m. x 2 c.m. over right knee. (v) Bruise situated in the upper neck and lower jaw region. The whole area is swollen. (vi) Bruises over the lower neck and both shoulders. (vii) Half circular shape abrasions seen on both the sides of neck behind the ear line three in number on each side and each abrasion is half c.m. dimension. Internal injuries: (i) On dissection of the neck large quantity of clotted blood was found below the skin and in between the muscles. There was fracture of cricoid bone of the neck. (ii) Heart was filled with fluid blood. (iii) Stomach was empty. (iv) No injuries were found in the genitalia and parienial region. No stains were found and no hair was present in the perinial area.' - 8. P.W.9, who proved the post-mortem report vide Ext.4 made it clear that all the injuries mentioned above, were ante-mortem in nature and cause of death was asphyxia in nature due to strangulation and it was homicidal in nature. No stains were found and no hair was present in the perinial area.' - 8. P.W.9, who proved the post-mortem report vide Ext.4 made it clear that all the injuries mentioned above, were ante-mortem in nature and cause of death was asphyxia in nature due to strangulation and it was homicidal in nature. It is important to note here that this part of the evidence of P.W.9 remains un-demolished during cross-examination. From all these, it can be deduced that the nature of death of Lachhandei Gond was/is homicidal in nature. 9. We have gone through the evidence on record carefully. It appears that P.Ws.6 and 8 are witnesses to a part of occurrence, namely, the allegation relating to commission of rape by the convict-appellant on the deceased. Both P.Ws.6 and 8 have deposed that they have seen the incident of commission of rape by the convict-appellant on the deceased. On seeing the above noted fact while P.W.6-wife rushed to the spot; P.W.8-husband came back to the village to call the villagers. This is a peculiar behaviour by the husband. P.W.6 after reaching the spot, dragged the accused and dealt two slaps to the accused saying as to why he was committing rape on an old lady. It is the evidence of P.W.6 that the accused chased her in naked condition saying that he would also rape and kill her. Accordingly, P.W.6 ran to the Sahi and came back to the spot along with the villagers. By the time P.W.6 and P.W.8 reached the spot they saw the dead body of the deceased. On being informed by P.W.8, P.W.1, the informant who happens to be the son of the deceased came to the spot and found that the convict-appellant was carrying the dead body of his mother. He along with others detained the convict-appellant there and rushed to the Police Station to lodge the F.I.R. under Ext.8. So far as allegation of rape is concerned, P.Ws.1, 2, 3, 4, 5, 7, 10, 12 are post occurrence witnesses. Though the evidence of P.Ws.6 and 8 with regard to they having witnessed the commission of rape remains undemolished in cross-examination, however, the medical evidence completely rules out allegation of rape. P.W.9, the doctor who conducted the autopsy, in the cross-examination has clearly stated that there exists no evidence suggestive of rape and sexual assault. Though the evidence of P.Ws.6 and 8 with regard to they having witnessed the commission of rape remains undemolished in cross-examination, however, the medical evidence completely rules out allegation of rape. P.W.9, the doctor who conducted the autopsy, in the cross-examination has clearly stated that there exists no evidence suggestive of rape and sexual assault. In the cross-examination, P.W.9 has made it clear that he did not find any symptom of sexual intercourse being committed on the deceased prior to her death. Similarly, P.W.14 who examined the accused clearly stated that he found there was no recent sign and symptom of sexual intercourse. Thus, we are faced with a situation of total inconsistency between the evidence of eye-witnesses and medical evidence. According to Mr. Das, it is well settled that in case of variance between evidence of eye-witness and medical evidence the evidence of eye-witnesses will have primacy, but where there is total inconsistency between the evidence of eye-witnesses and medical evidence then, it would be difficult to convict the accused on the basis of evidence of eye-witnesses. But, as indicated earlier, Mr. Pradhan, learned Addl. Government Advocate relying on several decisions of the Hon-” ble Supreme Court contended that the medical evidence cannot overrule ocular evidence of P.W.6 and P.W.8, which remain un-demolished. In this context, he also relies on decisions referred to by the learned court below on this aspect. Here, as indicated (supra), the medical evidence of P.W.9 and P.W.14 totally rules out any evidence suggestive of rape or sexual assault prior to the death of the deceased. Therefore, by relying on the decisions reported in AIR 2008 SC 533 (Kapildeo Mandal and others v. State of Bihar) and (2009) 11 SCC 566 : (AIR 2009 SC (Supp) 272) (State of Uttar Pradesh v. Dinesh), we have no hesitation to conclude that the learned court below has gone wrong in recording a conviction under Section 376 of I.P.C. so far as the convict-appellant is concerned. In this context, it may be noted here that the decisions cited by the learned Addl. Government Advocate Sri Pradhan and the trial court at para-19 of the judgment do not lay down any contrary principles. In this context, it may be noted here that the decisions cited by the learned Addl. Government Advocate Sri Pradhan and the trial court at para-19 of the judgment do not lay down any contrary principles. In fact AIR 2008 SC 1747 : (2008) 13 SCC 515 (Ram Swaroop v. State of Rajasthan) relied on by the trial court as well as learned A.G.A. lay down that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per oral testimony, then the court has to draw adverse inference. Same principle has been reiterated in (2003) 12 SCC 606 : (AIR 2004 SC 1053) (Ramanand Yadav v. Prabhu Nath Jha and others). Rest of the judgments like (2006) 1 SCC 283 : ( AIR 2006 SC 508 ) (Vishnu alias Undrya v. State of Maharashtra), (2004) 10 SCC 692 : ( AIR 2004 SC 2158 ) (Main Pal and another v. State of Haryana and others), (1979) 4 SCC 349 : ( AIR 1979 SC 1194 ) (Mange v. State of Haryana), AIR 2008 SC 515 (Mehmood v. State of Uttar Pradesh), (1992) 3 SCC 204 : (1992 AIR SCW 1480) (Madan Gopal Kakad v. Nawal Dubey and another) are factually distinguishable. These are not the cases where like the present case, medical evidence completely ruled out the version of eye-witnesses. Further, it may also be noted that in the present case, the chemical examination report, which is marked as Ext.13 also does not corroborate the evidence of P.Ws 6 and 8 relating to commission of offence of rape. Ext.13 makes it clear that stains of semen, stains of blood and foreign hairs could not be detected in the exhibits sent to them under Ext.12. The exhibits under Ext.12 included Lungi and Nicker of the convict-appellant and his blood sample, nail clipping and semen. The exhibits under Ext.12 also included the undergarment, waist rope and saree of the deceased. Further, Mr. Das submitted that P.W.6 in her evidence has stated that at the time of commission of rape, the convict-appellant was sleeping over the deceased in naked condition and was committing sex with her. However, P.W.17 in his deposition has stated that such thing was never stated before him by P.W.6 during course of investigation. Further, Mr. Das submitted that P.W.6 in her evidence has stated that at the time of commission of rape, the convict-appellant was sleeping over the deceased in naked condition and was committing sex with her. However, P.W.17 in his deposition has stated that such thing was never stated before him by P.W.6 during course of investigation. This makes the version of P.W.6 untrustworthy. Accordingly, he wants us to peruse the case diary in order to draw adverse inference vis- -vis the version of P.W.6. Though a perusal of case diary shows that P.W.6 never stated before P.W.17 that at the time of commission of rape on the deceased, she was in naked condition and that the convict-appellant in naked condition was also sleeping on her while committing rape and the convict-appellant was throttling the neck of the deceased, however, this Court cannot use the same as evidence in view of express bar put by Section 172 (2) of the Code of Criminal Procedure, 1973. (See (2010) 1 SCC 94 : ( AIR 2010 SC 566 ), (Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh). The decision cited by Mr. Das as reported in 1997 Criminal Law Journal 398 (Manohar v. State of Karnataka) and AIR 1989 SC 144 (Mukund Lal and another v. Union of India and another), are factually distinguishable. With regard to submission of Mr. Pradhan, learned A.G.A. that absence of injuries on private part of a married lady would not falsify the case of rape, our response would be that there is no dispute on this proposition of law. But, here is a case the undemolished evidence of P.W.9 and P.W.14 totally rules out any evidence suggestive of rape. It may be noted here that while the alleged occurrence took place at about 4.00 p.m. on 27.02.2011, P.W.9 conducted autopsy on 28.02.2011 and P.W.14 examined appellant on 27.02.2011 itself. In such background decisions like 2007 (3) Crimes, 281 (SC) : (AIR 2007 SC (Supp) 678) (B. C. Deva alias Dyava v. State of Karnataka), 2004 AIR SCW 6479 : ( AIR 2005 SC 203 ) (Deelip Singh alias Dilip Kumar v. State of Bihar), (2007) Cr LA (SC) 604 : (AIR 2007 SC (Supp) 678) (B. C. Deva alias Dyava v. State of Karnataka) have no application as those are factually distinguishable. Similarly, decision cited by Mr. Pradhan, learned Addl. Similarly, decision cited by Mr. Pradhan, learned Addl. Government Advocate as reported in (2011) 49 OCR (SC) 136 : (AIR 2011 SC (Cri) 610) (Ashok Suraylal Ulke v. State of Maharashtra) is factually distinguishable as in the present case the victim has died on the spot. On a cumulative analysis of evidence available on record, we hold that the learned court below has gone wrong in convicting the convict-appellant under Section 376 of I.P.C. For removing the saree and sleeping over the deceased, the appellant can only be held guilty under Section 354, I.P.C. 10. So far as conviction under Section 302 of I.P.C. is concerned, we find that there exists no eye-witness to the murder of Lachhandei Gond. The case against the convict-appellant under Section 302 of I.P.C. is based on circumstantial evidence. Parameters of appreciation of circumstantial evidence have been laid down by the Hon-” ble Supreme Court in AIR 1984 SC 1622 (Sharad Biridhichand Sarda v. State of Maharashtra). Now, we have to see whether those parameters are satisfied in the present case in order to make out a case under Section 302 of I.P.C. against the convict-appellant or not. A combined reading of evidence of P.Ws. 6 and 8 brings out the following picture: The deceased was sitting under the mango tree near the land of P.W.6 and P.W.8. At about 4.00 p.m. the accused came there and started removing the saree of the deceased and committed rape on her. When the deceased cried, P.W.6 rushed to the spot and P.W.8 ran to the village to call the villagers. According to P.W.6, when she reached the spot, appellant was sleeping over the deceased on naked condition and was having sex with her. P.W.6 dragged out the accused and dealt two slaps to the accused for committing such an act to an old lady. P.W.6 was chased by the accused with a naked condition saying that he would also commit rape on her and kill her. So, P.W.6 also ran away to the village. As per the deposition of P.W.8, he along with the villagers came running to the spot from the village within 10 minutes after the incident. By the time they reached they found the deceased lying dead on the ground. So, P.W.6 also ran away to the village. As per the deposition of P.W.8, he along with the villagers came running to the spot from the village within 10 minutes after the incident. By the time they reached they found the deceased lying dead on the ground. Evidence of P.W.8 makes it clear that except he himself and P.W.6 nobody else was present in his land or the nearby land when the alleged occurrence took place. Since we have disbelieved the allegation relating to rape, from the above analysis of evidence, the following facts can be inferred. (1) The deceased was sitting under the mango tree near the land of P.W.6 and PW.8. (2) At about 4 p.m. the convict-appellant came there started removing the saree of deceased. (3) According to P.W.8 at that time, nobody else was present except him and his wife, P.W.6. (4) When deceased cried, P.W.6 rushed to the spot and P.W.8 ran to village to call the villagers. (5) When P.W.6 reached the spot, appellant was sleeping over the deceased in a naked condition. (6) P.W.6 dragged out the appellant and dealt two slaps to appellant for his improper conduct. (7) Appellant chased P.W.6 saying he would kill P.W.6. (8) P.W.6 ran to village and later came back with villagers. (9) P.W.8 came back within 10 minutes with villagers. (10) By the time P.W.6 and P.W.8 reached the spot Lachhandei was already dead. (11) According to P.W.6, the dead body was in the custody of accused. The above noted evidence of P.W.6 and P.W.8 remain undemolished in cross-examination. Further, P.Ws.10 and 12 who rushed to the spot after hearing the incident found the accused carrying the dead body of the deceased on his shoulder. This has been corroborated by the version of P.W.1, P.W.2 and P.W.6. In addition to that both P.Ws.10 and 12 have stated that they found the accused going towards ' Masanipada-” carrying the dead body on his shoulder while he was holding the cycle on the other hand. All this deposition of P.Ws.10 and 12 have remained un-demolished in cross-examination. P.W.9 in his deposition while proving post mortem report under Ext.4, has clearly stated that all injuries on decased was ante mortem in nature and cause of death was asphyxia in nature due to strangulation and it was homicidal in nature. All those deposition of P.W.9 remain un-demolished in cross-examination. P.W.9 in his deposition while proving post mortem report under Ext.4, has clearly stated that all injuries on decased was ante mortem in nature and cause of death was asphyxia in nature due to strangulation and it was homicidal in nature. All those deposition of P.W.9 remain un-demolished in cross-examination. Evidence of P.W.1 is that after being informed by P.W.8; he proceeded to the spot and found his mother already dead. He found that the convict-appellant was carrying the dead body of his mother in naked condition. He along with others detained appellant and deceased and came to police station and lodged F.I.R. being scribed by P.W.16. All these have remained unshaken in cross-examination. The above noted version of P.W.1 relating to carrying of dead body has been corroborated by P.Ws 2, 6,10 and 12. P.W.16 in his evidence corroborates that as per the instruction of P.W.1, he scribed F.I.R. (Ext.8). This evidence of P.W.16 remains undemo-lished. P.W.2 in his evidence has stated that he has seen appellant carrying the dead body in an almost naked condition. This was also witnessed by P.Ws.6 and 10. P.Ws.6 and 10 corroborate the above fact. P.W.2 corroborated the inquest report (Ext.1) prepared by police. He also corroborated seizure of waist thread and a small cloth of deceased from the spot under Ext.2. P.W.2 also corroborated seizure of cycle of the appellant under Ext.3. Nothing substantial has been brought out in the cross-examination to discredit the above testimony of P.W.2. The statement of P.W.2 with regard to Exts.1,2 and 3 has been corroborated by P.W.17, the I.O. P.W.3 reached the spot where dead body of deceased was lying on being informed by P.W.4. He found mark of injury in neck and bleeding from nostril with swelling of cheek. This evidence of P.W.3 has been corroborated by P.W.4. The above noted evidence of P.Ws.3 and 4 have remained undemolished in cross-examination. P.W.5 speaks of accompanying P.W.1 to lodge F.I.R. P.W.7 in his evidence stated that when he reached the spot, Lachhandei was lying dead and neck and cheeks of the deceased was swollen. P.W.13 stated that wearing apparels of the deceased were seized as per Ext.5 in the presence of P.W.13. This corroborates the version of P.W.17 with regard to seizure of wearing apparels of deceased. P.W.17 in his evidence proved the inquest report under Ext.1 and seizure lists under Exts. 2,3,5 and 10. P.W.13 stated that wearing apparels of the deceased were seized as per Ext.5 in the presence of P.W.13. This corroborates the version of P.W.17 with regard to seizure of wearing apparels of deceased. P.W.17 in his evidence proved the inquest report under Ext.1 and seizure lists under Exts. 2,3,5 and 10. In the cross-examination, he has mainly highlighted on certain statements not made by P.W.6 during the course of investigation. P.W.18 in his evidence states that she took up the investigation from P.W.17 and in course of investigation she made a prayer to the learned J.M.F.C., Umerkote for sending exhibits to Regional Forensic Science Laboratory, Berhampur. Accordingly, the exhibits were sent vide Ext.12. Chemical Examination Report was received under Ext.13 in response to Ext.12. Vide Ext.12 following exhibits were sent: 1. One white gray and blue colour check lungi. 2. One faded blue colour nicker. 3. One sealed pocket containing blood, nail clipping, semen etc. of the accused collected and preserved by the M.O. 4. One rose and blue cotton under garment of deceased. 5. One waist rope. 6. One yellow colour print saree having white flower and green print. As per Ext.13, no stains of blood, semen or foreign hairs could be detected in exhibits. 11. An analysis of evidence as made above would show that P.Ws.6 and 8 have stated that the deceased was last seen alive with the accused at about 4.00 p.m. but around 4.10 p.m. they found the dead body of the deceased in the custody of the convict-appellant. Thus, the time gap between the accused and deceased were last seen alive and the deceased was found dead in the custody of appellant was/is extremely short and the very fact that none else was present at the spot clearly rules out any person other than the appellant being the author of crime. Thus, the last seen theory has been successfully established by the prosecution. In this context, Mr. Das, submitted that last seen theory cannot be the sole basis for holding a person guilty of murder. In this context, he relies on a decision of the Hon-” ble Supreme Court as reported in AIR 1979 SC 1620 (Lakhanpal v. The State of Madhya Pradesh). In this context, Mr. Das, submitted that last seen theory cannot be the sole basis for holding a person guilty of murder. In this context, he relies on a decision of the Hon-” ble Supreme Court as reported in AIR 1979 SC 1620 (Lakhanpal v. The State of Madhya Pradesh). Apart from the fact that the above noted case is distinguishable on facts, it may be noted that here besides last seen theory, the court below has correctly held that in the facts and circumstances of the case, the appellant has failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act, 1872. The deceased and accused were last seen alive at 4.00 p.m, ten minutes thereafter dead body of the deceased was found from the custody of appellant. Thus, what happened within ten minutes must be within the special knowledge of appellant only. But, the appellant has not offered any explanation on this or how the murder of deceased occurred. This clearly is a circumstance against him showing his complicity in the crime or murder of the deceased. Further, in his examination under Section 313 of Cr.P.C., the convict-appellant also did not offer any explanation with regard to aforesaid incriminating circumstances. From the evidence of P.W.9, it is clear that the deceased died due to strangulation. However, the convict-appellant has not offered any explanation as to how the deceased suffered strangulation and a number of other injuries as pointed out by P.W.9 in his post-mortem report. Further, from the evidence of P.Ws.2 and 17, it is crystal clear that police has seized the cycle, waist rope and small clothes (antabastra) of the deceased from the spot. P.W.9 has further made it clear that all the injuries suffered by the deceased were ante mortem in nature and death was homicidal in nature. The evidence of P.Ws.1, 2, 6, 10 and 12 further shows that while they reached the spot, they found that the accused was carrying the dead body of the deceased. P.Ws.10 and 12 have also deposed that the convict-appellant was found going towards ' Masanipada-” (burial ground) while carrying the dead body. The above noted evidence of P.Ws.1,2,6,10 and 12 remains un-demolished in the cross-examination. P.Ws.10 and 12 have also deposed that the convict-appellant was found going towards ' Masanipada-” (burial ground) while carrying the dead body. The above noted evidence of P.Ws.1,2,6,10 and 12 remains un-demolished in the cross-examination. Though there are some contradictions relating to carrying of the dead body by the accused person, however, according to us this is very minor in nature and in no way affect the core of the prosecution case. The convict-appellant has also offered no explanation as to why he was carrying the dead body towards the burial ground. The conduct of the convict-appellant in carrying the dead body towards cremation ground presumably for the purpose of causing disappearance of evidence of murder is relevant to the fact in issue and is also admissible in evidence against him under Section 8 of the Indian Evidence Act. This conduct of the convict-appellant immediately subsequent to the death of the deceased is a clear pointer towards his guilt. Accordingly, there exists a host of other proved facts, from which, it can be inferred that it is the convict-appellant, who committed the murder of the deceased by strangulation with the intention of causing her death. Since the chain of circumstances is complete, therefore, the trial court has correctly found him guilty under Section 302 of I.P.C. 12. Next contention of Mr. Das is that in a criminal case motive plays an important role. Since the allegation of rape is found to have been false, there is no reason as to why the convict-appellant would do away with the life of the deceased. In this context, he has relied on the decision reported in AIR 1998 SC 249 (Smt. Omwati v. Mahendra Singh and others), AIR 2011 SC 72 (Varun Chaudhary v. State of Rajasthan) and 1999 Criminal Law Journal 5051 (State of Rajasthan v. Khuma). Though the above decisions are factually distinguishable, however, AIR 1998 SC 249 (supra) lays down that no doubt proof of motive is not necessary to sustain a conviction but when prosecution puts forward and specific case as motive for crime, the evidence regarding the same has got to be conducive in order to judge probabilities. Though the above decisions are factually distinguishable, however, AIR 1998 SC 249 (supra) lays down that no doubt proof of motive is not necessary to sustain a conviction but when prosecution puts forward and specific case as motive for crime, the evidence regarding the same has got to be conducive in order to judge probabilities. AIR 2011 SC 72 (supra) lays down that where there is no eye-witness or where there is no scientific evidence to connect the accused with offence, the prosecution ought to establish that there is some motive behind commission of offence of murder. In 1999 Cri LJ 5051 (supra), Rajasthan High Court has laid down that where the decision of a criminal case depends upon circumstantial evidence, the motive alleged by prosecution assumes importance. In such cases, if prosecution fails to establish motive, courts are required to examine circumstantial evidence with greater caution and care. It is equally well settled that in cases depending on circumstantial evidence, if motive is proved, it is well and good but absence of motive cannot be a ground to reject the prosecution case, where other proved circumstances are there. (See 1998 SCC (Cri) 704 : ( AIR 1998 SC 242 ) (Lekhraj v. State of Gujarat) (1998) 7 SCC 478 : ( AIR 1998 SC 3317 ) (Uday Kumar v. State of Karnataka), (2010) 10 SCC 439 : ( AIR 2011 SC 200 ) (Paramjeet Singh v. State of Uttarakhand), (2011) 12 SCC 554 : ( AIR 2011 SC 2913 ) (Amitav Banerjee v. State of West Bengal) and (1992) 3 SCC 43 : ( AIR 1992 SC 1175 ) (Mulakh Ray and others v. Satis Kumar and others). 13. Next, Mr. Das contended that if the convict-appellant was the author of crime then in all probabilities his nail clippings would have given positive sign. Since the report of the chemical examiner is in negative, therefore, scientific evidence is also lacking. It may be noted here that death in this case has occurred on account of asphyxia due to strangulation. In the post-mortem examination, it was found that nail marks were there in the form of linear abrasion only at the right chest below the breast. Thus, the negative report on nail clippings would in no way affect the core of prosecution story, as described earlier. 14. Lastly, Mr. In the post-mortem examination, it was found that nail marks were there in the form of linear abrasion only at the right chest below the breast. Thus, the negative report on nail clippings would in no way affect the core of prosecution story, as described earlier. 14. Lastly, Mr. Das, learned counsel for the convict-appellant contended that much cannot be read into the allegation that convict-appellant was found carrying the dead body of the deceased towards burial ground. In this context, he drew our attention to several contradictions in the evidence of P.Ws.1, 2, 6, 8 and 10. However, these contradictions are not very much material as these do not affect the core story of prosecution that deceased was found dead in the company of accused, ten minutes after, when both of them were seen alive and that the convict-appellant has offered no explanation for the same, particularly when none else was there at the spot. For the above noted reasons, the challenge of appellant to his conviction under Section 302, I.P.C. must fail. 15. Now, the question is whether capital punishment is the appropriate punishment for the case at hand? 16. Mr. For the above noted reasons, the challenge of appellant to his conviction under Section 302, I.P.C. must fail. 15. Now, the question is whether capital punishment is the appropriate punishment for the case at hand? 16. Mr. Pradhan, vehemently, argued that this is a fit case where the capital punishment should be awarded and for this he has relied on the decisions of the Hon-” ble Supreme Court reported in AIR 1980 SC 898 (Bachan Singh v. State of Punjab), AIR 1983 SC 957 (Machhi Singh v. State of Punjab), 2013 (56) OCR (SC) 689 : (AIR 2013 SC (Cri) 2356) (Deepakrai and others v. State of Bihar), (2012) 4 SCC 37 : ( AIR 2012 SC 1377 ) (Rajendra Pralhadrao Wasnik v. State of Maharashtra), (1994) 2 SCC 220 : (1995 AIR SCW 510) (Dhananjoy Chatterjee v. State of W.B.), (1979) 3 SCC 366 : ( AIR 1979 SC 716 ) (Nathu Garam v. State of U.P.), (1994) 3 SCC 381 : ( AIR 1995 SC 1387 ) (Laxman Naik v. State of Orissa), (2005) 3 SCC 114 : ( AIR 2005 SC 1000 ) (State of U.P. v. Satish), (2007) 4 SCC 713 : (AIR 2007 SC (Supp) 556) (Shivu and another v. Registrar General, High Court of Karnataka and another), (2008) 11 SCC 113 : (AIR 2009 SC (Supp) 1367), (Bantu v. State of Uttar Pradesh), (2008) 15 SCC 269 : ( AIR 2009 SC 56 ) (Shivaji alias Dadya Shankar Alhat v. State of Maharashtra) and (2011) 3 SCC 85 : ( AIR 2011 SC 1000 ) (B. A. Umesh v. Registrar General, High Court of Karnataka). 17. We have gone through the above noted decisions. The first two decisions lay down the guidelines for imposing the death penalty. The second decision, i.e., Machhi Singh, ( AIR 1983 SC 957 ) (supra) and the rest of the decisions are factually distinguishable. In Machhi Singh case (supra) and Deepak-rai, (AIR 2013 SC (Cri) 2356) (supra), there were eye-witnesses unlike the present case. The first two decisions lay down the guidelines for imposing the death penalty. The second decision, i.e., Machhi Singh, ( AIR 1983 SC 957 ) (supra) and the rest of the decisions are factually distinguishable. In Machhi Singh case (supra) and Deepak-rai, (AIR 2013 SC (Cri) 2356) (supra), there were eye-witnesses unlike the present case. In Rajendra Prahalad Rao Wasnik case, ( AIR 2012 SC 1377 ) (supra), Dhananjoy Chatterjee case (1995 AIR SCW 510) (supra), Laxman Naik case (supra), Satish case ( AIR 2005 SC 1000 ) (supra), Shivu case (AIR 2007 SC (Supp) 556) (supra), Bantu case (AIR 2009 SC (Supp) 1367) (supra), Shivraji case ( AIR 2009 SC 56 ) (supra), B. A. Umesh case ( AIR 2011 SC 1000 ) (supra), both charges on rape and murder were proved. But here as we have already held charge relating to rape has not been proved. In Nathu Garam case ( AIR 1979 SC 716 ) (supra), accused caused death of a young girl after luring her to home for committing criminal assault. Thus, the same case is distinguishable on facts. The above noted cases also reflect other aggravating circumstances. 18. Counsel for the appellant relied on (2013) 55 OCR (SC) 623 : (AIR 2013 SC (Cri) 1230) (Shankar Kisanrao Khade v. State of Maharashtra), where despite rape and murder of a minor girl with intellectual disability, Hon-” ble Supreme Court converted the death sentence to imprisonment for life. He also relied on the case reported in AIR 2013 SC 3622 (Mahinder Singh v. State of Punjab). In that case, the accused committed murder of his wife and daughter in the background of inimical relationship between them. In the said case also, death sentence awarded to the accused has been converted by Hon-” ble Supreme Court to one of life imprisonment. Mr. Das, also drew our attention to a decision of Hon-” ble Supreme Court, i.e, Bishav Prasad Sinha v. State of Assam (2007) 11 SCC 467 : ( AIR 2007 SC 848 ), which involved rape and murder of a child aged 7 to 8 years. There, the Hon-” ble Supreme Court has held that if the prosecution case is proved by circumstantial evidence, ordinarily death penalty should not be awarded. There, the Hon-” ble Supreme Court has held that if the prosecution case is proved by circumstantial evidence, ordinarily death penalty should not be awarded. In the present case, the court below, while imposing death sentence was swayed by the conviction of the convict-appellant under Section 376 of I.P.C. Here, as indicated earlier, no case under Section 376 of I.P.C. is made out against the convict-appellant. Besides that though the court below has taken into account the same mitigating circumstances in favour of the convict-appellant, however, it has also missed the other mitigating circumstances in favour of him. There are absence of criminal antecedents of the convict-appellant and further that there exists no proof to show that the convict-appellant would be a permanent threat to the society at large. There also exists no report of bad behaviour while the convict-appellant is in custody. Additionally, also there is no evidence to the effect that he cannot be reformed and rehabilitated. In drawing the balance sheet of aggravating and mitigating circumstances, it is well settled that the mitigating circumstances would be accorded full weightage and a just balance has to be struck before the opinion is exercised. It is well settled that in a civilized society a tooth for a tooth and an eye for an eye ought not to be criterion to clothe the case with ' rarest of rare' - jacket and courts must not be propelled by such notions in haste to award capital punishment. Taking into account the entirety of the circumstances and balancing the aggravating and mitigating circumstances, we are of the considered opinion that sentence of death imposed on the convict-appellant should be commuted to imprisonment for life. 19. In the result, we uphold the conviction of the convict-appellant under Section 302 of I.P.C., but set aside the punishment of death imposed on him and accordingly modify the sentence to the punishment of imprisonment for life. Simultaneously, we set aside the conviction of the convict-appellant under Section 376 of I.P.C. and hold him guilty under Section 354 of I.P.C. and impose a punishment of two years of R.I. on him. Both the sentences are to run concurrently. The reference made by the learned Sessions Judge is accordingly discharged and Criminal Appeal filed by the appellant is partly allowed. The DSREF and Criminal Appeal are accordingly disposed of. Appeal partly allowed.