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2015 DIGILAW 898 (CAL)

State of West Bengal v. Laltu Mahapatra

2015-10-16

ASHIM KUMAR ROY, MALAY MARUT BANERJEE

body2015
JUDGMENT : Ashim Kumar Roy, J. On January 20, 2011 from around 9.30 a.m. in the morning, Sabana Khatun (aged about 10 years), the daughter of Rejbanur Bibi (PW/1) was found missing. The entire village was searched by her mother (PW/1) and the villagers and in course of such search, according to Rejbanur Bibi (PW/1), when she had been to the house of her former landlord Prasanta Mahapatra, she was filthily abused and was told that they have killed her daughter and concealed the dead body. It was claimed by the PW/1 some dispute crept in, between the PW/1 and her landlord, the accused persons, when she was staying at the house of said Prasanta Mahapatra, for default of payment of rent for a few months and the son of the landlord Laltu Mahapatra (appellant/convict) threatened that her daughter would be raped and killed. Thereafter, on that day, at around 3 p.m. one of the villagers Raju Mondal (PW/4) found a dead body was floating in a pond inside the bamboo grove and bushes. After the news spread, the PW/1 Rejbanur Bibi and the villagers assembled there and police was also informed at once. The police came to the spot and recovered a fully naked dead body and the same found to be that of Sabana Khatun, the daughter of the PW/1. Thereafter her wearing apparels were recovered from the house of accused Prasanta Mahapatra. 2. Following the recovery of the dead body on January 20, 2011, Ghatal P.S. U.D. Case No. 7/11 was registered, the inquest was held and the dead body was sent for postmortem examination. 3. Thereafter on the next day an FIR was lodged by Rejbanur Bibi, the mother of the victim, as aforesaid, which gave rise to Ghatal P.S. Case No. 7/2011 under sections 376/302/201/34 IPC against the appellant/convict and his parents. 4. The police after completion of investigation submitted charge sheet against all the three accused under sections 376/302/201/109 IPC, including the appellant/convict. 5. The appellant/convict was then placed on trial before the learned Additional District and Sessions Judge, Fast Track Court, Ghatal to answer charges under sections 376/302/201 IPC. In the same trial, two other accused's, the parents of the appellant/convict were also charged under sections 302/109 IPC. 6. During the trial the prosecution to prove the case against the appellant/convict examined as many as 16 witnesses. In the same trial, two other accused's, the parents of the appellant/convict were also charged under sections 302/109 IPC. 6. During the trial the prosecution to prove the case against the appellant/convict examined as many as 16 witnesses. However, defence examined none and it appears from the trend of cross-examination of the witnesses and the reply of the appellant/convict during his examination under section 313 CrPC, that the defence tends to make out a case of false implication and innocence and the victim died due to an accidental drowning. 7. The prosecution case, in absence of any eye-witness to the occurrence, rests entirely on circumstantial evidence. 8. We find from the impugned judgment that the learned trial Judge noted down following circumstances, which according to him proved, beyond all reasonable doubts, the guilt of the appellant/convict and the chain of circumstances was complete, without any missing link. a. That PW/1, Rejbanur Bibi was a tenant of the accused Prasanta Mahapatra. At that relevant point of time she had been residing in the house of Prasanta Mahapatra with her two children. b. PW/1 was a defaulter in payment of rent, for four months. Since PW/1, could not pay the rent to the accused Prasanta Mahapatra, there was bitter relation between the accused Prasanta Mahapatra and PW/1. c. The accused Laltu Mahapatra used to threat PW/1, that he would rape and murder her daughter, since she could not pay rent to his father Prasanta Mahapatra for four months. d. The daughter of PW/1, the deceased minor victim girl, used to report her mother i.e. PW/1, that the accused Laltu Mahapatra used to pull her hands on some occasions prior to the date of incident. Since the aforesaid statement was made by the aforesaid daughter of PW/1, immediately prior to her death, the same is relevant in view of section 6 of the Indian Evidence Act, 1872. e. The aforesaid fact of teasing and attempt to outrage the modesty of the daughter of PW/1, was reported to the mother of Laltu Mahapatra, namely, Kamala Mahapatra, by PW/1 when Kamala Mahapatra replied that since PW/1, could not pay the house rent, this type of incident might happen. f. The daughter of PW/1, was found missing at around, 9 to 9.30 a.m. On 20.01.2011, corresponding to Bengal calendar date 5th Magh. f. The daughter of PW/1, was found missing at around, 9 to 9.30 a.m. On 20.01.2011, corresponding to Bengal calendar date 5th Magh. g. The accused Laltu Mahapatra was standing just by the side of playground where the daughter of PW/1, and her friends, and her other sisters were playing, at around 9 to 9.30 a.m., on 20.01.2011, i.e. on the date of incident. h. PW/1 and other local people were trying to search the abovenamed daughter of PW/1, the deceased minor victim girl, but could not find her out. i. At around 2 to 2.30 p.m., on 20.01.2011, one of the tenants of accused Prasanta Mahapatra, PW/4, noticed a part of the hand of a person above the water of Doba (pond) which is situated 50 to 70 cubits from the house of the accused Prasanta Mahapatra. Having found only "part of the hand, PW/4, Raju Mondal raised a hue and cry, and hearing such hue and cry local people including the prosecution witnesses, came to the bank of aforesaid Doba (pond). The Doba (pond) is surrounded by bamboo groves, and there was small quantity of water in the said Doba (pond). j. PW/9, Siboram Mahapatra over telephone informed to the police attached to Ghatal P.S. and police officer attached to Ghatal P.S. came to the spot and they lifted dead body from the pond at around 4.30 p.m., on 20.01.2011, when the abovenamed prosecution witnesses who were present at the bank of the aforesaid Doba (pond), including PW/1, identified the dead body, as that of the daughter of PW/1. k. The dead body of the daughter of PW/1, was then found in a completely naked condition. Her dead body was full of clay and mud. There was mark of injury on the person of the above named daughter of PW/1, when her dead body was lifted from the pond (doba). l. That the accused person Laltu Mahapatra had been absconding, during the period from the time when the daughter of PW/1, was found missing till 31.01.2011, when he was arrested by the Investigating Officer PW/16. m. The undergarment (jangia) of the deceased minor victim, being the daughter of the PW/1, was recovered from the place, which was shown and pointed by the accused Laltu Mahapatra in presence of PW/2, PW/8, PW/9, and PW 16, and pursuant to the disclosure statement of the accused Laltu Mahapatra. m. The undergarment (jangia) of the deceased minor victim, being the daughter of the PW/1, was recovered from the place, which was shown and pointed by the accused Laltu Mahapatra in presence of PW/2, PW/8, PW/9, and PW 16, and pursuant to the disclosure statement of the accused Laltu Mahapatra. n. The minor daughter of PW/1, being the deceased minor victim girl, was murdered on 20.01.2011, by strangulation (throttling). o. The accused Laltu Mahapatra had strong motive to commit the murder of the minor victim girl, since deceased. 9. The learned trial Judge, then culled out the under noted items, as the most strong and incriminating circumstances, proved against the appellant/convict and observed, when those were put to him during his examination under section 313 CrPC, except claiming the same to be false, no explanation was received from him, which further points out his guilt. a) The motive behind the rape and murder of the minor daughter of the PW/1 was her default to liquidate the outstanding rents, which was payable to the co-accused Prasanta Mahapatra (acquitted), the father of the appellant/convict. b) The accused Laltu Mahapatra prior to the date of incident tried to outrage the modesty of the minor daughter of PW/1, since deceased, by pulling her hands. c) The accused Laltu Mahapatra was absconding for a period of almost 12 days from the date of the incident, which is quite relevant under section 8 of the Evidence Act. In this regard, the learned trial Judge further observed, it was the defence case that the daughter of PW/1 died in an accidental drowning and if the minor victim girl died in an accident, there is absolutely no reason why the accused Laltu Mahapatra fled away and absconded for 12 days, even when his parents were arrested. He having his cell phone cannot deny his knowledge about such facts. d) The undergarment of the deceased, daughter of PW/1, i.e., her jangia was recovered from the place as pointed by the accused Laltu Mahapatra and pursuant to his disclosure statement, 15 days after she was killed. This shows that the accused person had the information/knowledge about the concealment of that jangia in the place, wherefrom it was recovered. e) The accused Laltu Mahapatra was seen at the place, where the deceased was found playing with her other sisters before her missing. This shows that the accused person had the information/knowledge about the concealment of that jangia in the place, wherefrom it was recovered. e) The accused Laltu Mahapatra was seen at the place, where the deceased was found playing with her other sisters before her missing. Which shows that the accused Laltu Mahapatra had the greatest opportunity to commit the crime, which is relevant under section 7 and 8 of the Evidence Act and is a strong incriminating circumstance against him. f) From the evidence of PW/7 and PW/10, it was established that accused Laltu was standing by the side of the playground at around 9/9.30 a.m. on the date of incident, where the deceased girl was playing with her other sisters and friends. This particular circumstance was put to the accused during his examination under section 313 CrPC, when he claimed that he was not present there and took a plea of alibi. However, in spite of being repeatedly asked by the court as to whether he desired to lead any evidence in that regard the accused declined. The failure of the accused to prove his alibi, gives rise to an adverse presumption against his innocence. g) The accused Laltu Mahapatra gave false answers against the questions put to him during his examination under section 313 CrPC. In reply to the questions put to him that he was arrested on January 31, 2011 by PW/16, the accused stated to the court that he did not know anything about the same. The aforesaid answer is false that is evident from the order passed on February 1, 2011 by the ACJM, Ghatal, when he was produced before him. 10. Then the court below draws its conclusions in the manner as follows......" The conjoint reading of the proved facts and circumstances as set out in paragraph 32 and my observation as set out in paragraph 33, leaves no room for doubt that it is the accused Laltu, who committed the murder of the abovenamed daughter of PW/1, on 20.01.2011. The prosecution has been able to prove beyond all reasonable doubt that it is the accused Laltu Mahapatra who has committed the murder of minor daughter of PW/1, Rejbanur Bibi. As such the charge brought under section 302 of IPC, is well established against the accused person Laltu ". 11. After coming to the conclusion that the victim girl was killed by the appellant/convict. As such the charge brought under section 302 of IPC, is well established against the accused person Laltu ". 11. After coming to the conclusion that the victim girl was killed by the appellant/convict. The learned trial Judge addressed himself on the question whether she was raped before murder and observed." The learned counsel for the accused person argued that PW/13, the doctor who performed postmortem examination over the dead body of the minor daughter of PW/1 clearly stated in his oral testimony that he did not find any mark of injury around the private parts of the victim minor girl, and PW/13, also opined that the minor victim girl was not raped. As such, according to the learned counsel for the accused persons, the prosecution has failed to prove the charge under section 376 of IPC, against the accused Laltu. "The opinion of PW/13, as expressed in his postmortem examination, is how far reliable I have already discussed in detail, in the earlier part of my judgment ". 12. The learned trial Judge relied on three decisions of the Apex Court viz., in the case of State of Punjab v. Ramdev Singh reported in 2004 SCC (cri) 307, Gurucharan Singh v. State reported in AIR 1972 SC 2661 , Narayanamma (Kum) v. State of Karnataka and others reported in (1994) 5 SCC 728 and thereupon came to a conclusion only because no injury was found on the private parts of the minor victim girl that does not ipso facto leads to the conclusion that she was not raped. According to the learned trial Judge there are other materials to draw presumption of rape logically, as marks of injury was noticed by the PW/13 on the dead body at left lateral aspect of abdomen, ? inch x 1/16 inch, which was around her private parts. Therefore no injury was found around the private parts of the victim, does not ipso facto leads to the conclusion that she was not raped. 13. The learned trial Judge with regard to his earlier findings, then observed, firstly, he is unable to understand if the victim died due to throttling, how she sustained injury at her abdomen, if there was no attempt to rape her. 13. The learned trial Judge with regard to his earlier findings, then observed, firstly, he is unable to understand if the victim died due to throttling, how she sustained injury at her abdomen, if there was no attempt to rape her. Secondly, the dead body was found in naked condition and her wearing apparels were recovered from the place as was pointed out by the accused and therefore he was unable to understand why before committing the murder of the girl she was stripped off, if the accused had no intention to commit rape. According to the learned trial Judge, the PW/1, the mother of the victim after being abandoned by her husband was earning her livelihood by working as a maid and the victim was remained unattended. Therefore, the accused if had only intention to kill her, there is no need to take her at the bank of the Doba which was not generally attended by the local people. Even, prior to the date of offence, the accused tried to outrage her modesty by pulling her hands. 14. The learned trial Judge, with his above observation and having found the charge against the appellant/convict has been proved beyond all reasonable doubt, convicted him for the offences punishable under section 302, 376, 201 IPC and sentenced him to death. However, the two other co-accuseds, Prsanta Mahapatra and Kamala Mahapatra, the parents of the appellant/convict, and tried with him, were acquitted. 15. The learned trial Judge then submitted the proceedings before this High Court for confirmation of sentence of death and the appellant/convict preferred an appeal against his conviction and sentence, which gave rise to Death Reference No. 5 of 2015 and CRA No. 461 of 2015. However, no appeal was preferred either by the State or by the victim against the order of acquittal passed in favour of the other two co-accuseds. Since, both the death reference and the criminal appeal are arising out of the self-same judgment and order, both are taken up for hearing together and are disposed of by this common judgment. 16. However, no appeal was preferred either by the State or by the victim against the order of acquittal passed in favour of the other two co-accuseds. Since, both the death reference and the criminal appeal are arising out of the self-same judgment and order, both are taken up for hearing together and are disposed of by this common judgment. 16. The case against the appellant/convict is entirely based on circumstantial evidence and therefore no conclusion of his guilt can be reached unless, each of the circumstances relied upon by the prosecution against him is independently proved beyond all reasonable doubts and those proved circumstances must be of conclusive nature and consistent only with the hypothesis of his guilt, repelling his innocence and then the proved circumstances taken collectively should form a complete chain, leaving no link missing and there can be no escape from the conclusion, within all probabilities that crime was committed by the accused and none else. 17. Mr. Asish Sanyal, the learned counsel appearing on behalf of the appellant/convict vehemently contended that the learned trial Judge has come to his conclusion about the guilt of the appellant/convict on mere surmises, conjectures and on his own inference, not supported by any materials on record. Mr. Sanyal then with reference to the evidence of the postmortem doctor PW/13 Dr. Dipak Kr. Mridha submitted in the trial mandatory provisions of the law has been openly flouted and the learned trial Judge permitted the counsel of the de facto complainant to conduct the trial on behalf of the prosecution. He pointed out that on February 1, 2012, after the examination of chief of PW/1 by the learned Public Prosecutor, was concluded, the said witness (PW/1) was further examined-in-chief by the counsel engaged by the de facto complainant. Then again on May 10, 2012, a prayer was made from the side of the prosecution for recalling of PW/13 and two other witnesses. The learned trial court without following the principle laid down in the section 311 CrPC allowed such prayer. Subsequently, on 4.6.2014, after the said witness was not available before the court for five occasions earlier his evidence was closed, however, without such order being recalled or being modified by any superior court, most illegally the witness was reexamined further on August 4, 2014. Subsequently, on 4.6.2014, after the said witness was not available before the court for five occasions earlier his evidence was closed, however, without such order being recalled or being modified by any superior court, most illegally the witness was reexamined further on August 4, 2014. He further submitted having regard to above facts, the evidence of the PW/13 so far that relates to the result of his examination in chief by the counsel of the de facto complainant and his re-examination on recall ought to be excluded from consideration. He then took us through the evidence of PW/13, autopsy surgeon and submitted on the face of the evidence of the said witness that no injury was found in the private parts of the victim and there was no sign of rape or sexual assault and the death of the victim was due to the effect of ante mortem drowning and injuries found in the person of the deceased were not sufficient to cause her death, the order of conviction is absolutely illegal and the same is liable to be quashed. Mr. Sanyal further submitted the learned trial court proceeded on a footing that the victim was last seen alive in the company of the appellant/convict from the evidence of PW/7 and PW/10. He submitted according to one witness, when the victim was found playing with other children, the appellant/convict was standing near to them and according to another the appellant/convict was sitting at their cow-shed, which was situated near the place, where the victim was playing with others. He vehemently contended these facts cannot be accepted to be a circumstance of last seen together. He further submitted the PW/10 is the wife of PW/2 and during the cross-examination of PW/2, it has been revealed that there is longstanding enmity between the family of the said witness and that of the appellant even criminal cases are pending against each other at their behest and the evidence of both the witnesses was vitiated by delayed disclosure. Mr. Mr. Sanyal further submitted that according to the prosecution, over default of payment of rent there was some previous dispute between the PW/1 and the accused persons and when she wanted to know the whereabouts of her daughter, she was told by the father of the appellant/convict, who also faced the trial that her daughter was raped and murdered and dead body has been concealed in the mud of a pond. He then submitted at the time of the inquest, no such fact was disclosed to the PW/12, who held the inquest, which was corroborated by another police personnel, a police constable (PW/15). He pointed out, it was the unchallenged evidence of the PW/12, that at the time of the inquest nobody made any complaint about any foul play behind the death of the victim. He further submitted the entire allegation has been made against the appellant/convict and his parents by lodging the FIR, nearly 30 hrs after the alleged incident. According to Mr. Sanyal, the examination of the appellant/convict under section 313 CrPC is not at all in accordance with law. He submitted that total 58 questions were put to the appellant/convict covering the entire evidence of all the 16 witnesses. Even unnecessary details and the same circumstances deposed by different witnesses were put to him separately and repeatedly. Then he added that the examination of an accused under section 313 CrPC is not an idle formality and the whole object is to afford a fair and proper opportunity to an accused to explain incriminating circumstances, which appears from the evidence of the witness against him. He further submitted because of the complex question put to the appellant/convict, he suffered a serious prejudice and there has been a failure of justice. He further submitted that the recovery of the undergarments of the victim by itself cannot be a circumstance against the appellant/convict and mere lapses on the part of the defence to prove its case did not absolve the duty of the prosecution beyond all reasonable doubts. Lastly, Mr. Sanyal submitted not only the charge against the appellant/convict has not been established, no case for death penalty has been made out and therefore, the appellant/convict is entitled to an order of acquittal. 18. Lastly, Mr. Sanyal submitted not only the charge against the appellant/convict has not been established, no case for death penalty has been made out and therefore, the appellant/convict is entitled to an order of acquittal. 18. The learned Public Prosecutor in his submissions first conceded that a gross illegality has been certainly committed by the learned trial Judge in allowing the counsel of the de facto complainant to conduct the examination-in-chief of the PW/13 Dr. Dipak Kr. Mridha, but then contended it cannot be overlooked that at no stage the defence took any objection. He contended that similar was the situation when after closure of the re-examination of the PW/13 Dr. Dipak Kr. Mridha, when during the subsistence of such order the said witness was re-examined. At that stage the defence never took any objection. He further submitted having regard to that, the question of excluding the evidence of PW/13 as urged by the counsel of the appellant/convict did not arise. Coming to the evidence of the PW/13 Dr. Dipak Kr. Mridha, the autopsy surgeon, the learned Public Prosecutor submitted that the evidence of the said witness although categorically ruled out a case of rape, but admittedly a few injuries were found near her private parts and when after obtaining the post mortem report, it was found that PW/13 opined that it was a case of ante mortem drowning, a further clarification was sought for and the PW/13 reported that the abrasions and other internal injuries found in the dead body were not sufficient to cause death, with a rider homicidal drowning can be proved by circumstantial evidence by the Investigating Officer. He then submitted total seven abrasions and two internal haematoma were found during post mortem but the post mortem doctor has not disclosed whether such injuries were homicidal or accidental. He further pointed out the circumstance of "last seen together", the abscondence of the appellant/convict soon after the incident and the recovery of the undergarments of the victim under section 27 of the Evidence Act, when remained unexplained by the defence and the false plea of alibi are sufficient circumstances to prove that this was a case where the appellant/convict raped and killed the victim. 19. Undoubtedly, the submission of Mr. 19. Undoubtedly, the submission of Mr. Sanyal, the counsel of the appellant that it was grossly illegal and going beyond the authority of law the learned trial court permitted the counsel of the de facto complainant to conduct the trial and examine the PW/13 Dr. Dipak Kr. Mridha, in-chief, has sufficient force and we are in complete agreement with him. The scheme envisaged in the Code of Criminal Procedure, in Chapter XVIII, for a trial before a Court of Session and according to the mandate of section 225 CrPC, in every Session Trial, the prosecution shall be conducted by a Public Prosecutor. The section 225 of the Code of Criminal Procedure, goes like this, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. However, in terms of sub section (2) of section 301 CrPC, when in a case a private person instructs a pleader ["pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding..2(q) CrPC] to prosecute any person to any court, although such prosecution shall be conducted by the Public Prosecutor or Assistant Public Prosecutor in charge of the case but it shall be permissible for such pleader to act under their direction and may with the permission of the court to submit written argument after the evidence is closed. Therefore, on a plain reading of the aforesaid provisions it is abundantly clear, in a sessions trial a lawyer engaged by a private person has no right of audience far less to conduct the examination-in-chief of the witness and the trial and his role in such trial, is limited to act under the direction of the Public Prosecutor or Assistant Public Prosecutor in charge of the case and to submit written notes after the closure of the evidence with the permission of the court. Even after insertion of section 2(wa), in the Code, defining the word victim and then a proviso to section 372 conferring a right of statutory appeal, to a victim, against an order of acquittal or conviction for lesser offence or for imposing inadequate compensation and amendment of subsection 8 of section 24 CrPC, by the Code of Criminal Procedure (Amendment) Act, 2008, irrespective of the nature of trial, a court is only authorised to permit the victim to engage an advocate of his choice to assist the prosecution and nothing more far less to allow the advocate so engaged by the de facto complainant to conduct the trial and participate in examination of the witness, in chief. (a) In this regard it would be just for us to refer a few passages from a three-judges bench decision of the Hon'ble Supreme Court in the case of Shiv Kumar v. Hukam Chand reported in (1999) 7 SCC 467 , Para 13: From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to instructions given by the Public Prosecutor. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to instructions given by the Public Prosecutor. Para 14: It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter. (b) The learned Public Prosecutor contended since the defence never opposed or resisted the advocate engaged by the de facto complainant to conduct the trial and examine-in-chief the PW/13 and had full consent, in this appeal, defence cannot now be permitted to raise any question or to dispute the legality, propriety and the correctness of the same. We are unable to accept the contention of the learned Public Prosecutor. Article 21 of the Constitution, which guaranteed a fair trial to every accused, commands no person shall be deprived from his life and personal liberty except according to procedure established by the law and it is mandatory under the scheme prescribed in the Code of Criminal Procedure that all sessions trial shall be conducted by the Public Prosecutor and by none else. In a criminal trial, the mandatory provisions of law, the object whereof to ensure the fair trial to an accused cannot be waived or relaxed by the consent of the accused far less by the consent of his counsel. Judges themselves are prisoners of law and are not free and have no right or liberty to exercise their power going beyond the legislative mandate to do something which is not permissible and beyond the intention of the legislature. Judges themselves are prisoners of law and are not free and have no right or liberty to exercise their power going beyond the legislative mandate to do something which is not permissible and beyond the intention of the legislature. (c) As pointed out by Mr. Sanyal, we further find that the learned trial court permitted re-examination of the PW/13 on recall invoking section 311 CrPC without recording his satisfaction that recalling and re-examination of such witness was needed as his evidence was essential for just decision in the case and after allowing the prayer of the prosecution for recalling of the said witness, since on six occasions the prosecution could not produce the said witness, his evidence was closed finally but during the subsistence of such order, the said witness was again examined. We strongly deprecate, deplore and condemn both. Permitting an Advocate, engaged by the de facto complainant to conduct a Sessions trial is not only, legally impermissible and against the mandate of the Code of Criminal Procedure, prescribing procedure for a Sessions trial, but top of everything is clearly violative, infringement and contravention of a fundamental right to fair and impartial trial, guaranteed to an accused under Article 21 of the Constitution. It is also patently illegal and without jurisdiction to permit examination of a witness, recalled under section 311 CrPC, after the trial court closed. Such re-examination due to nonavailability of such witnesses or for some other reasons, so long such order is in force and not altered. 19A. However, before coming to any decision, whether those part of the evidence elicited from the Autopsy Surgeon PW/13 Dr. Dipak Kr. Mridha during his examination by the counsel of the de facto complainant and his examination under section 311 CrPC, to be excluded from our consideration, as has been urged by the counsel of the appellant/convict, we feel, it would be just and proper to appreciate the worth of remaining evidentiary materials and to see whether those by themselves would be enough or not to sustain the order of conviction. 20. 20. Now, coming to the merits of the case and having regard to the facts, the case of the prosecution based entirely on circumstantial evidence, it would be more conducive for us to consider each circumstances chronologically, event wise, for their better appreciation and to fetch a logical conclusion, instead of haphazardly dealing with the same, as has been done by the learned trial court. 21. The learned trial court while concluding the guilt of the appellant/convict, in paragraph 33 of the judgment, commenced with the circumstance of motive. Evidence as to motive would, no doubt go a long way in cases dependent on circumstantial evidence and is a very important link in the chain of circumstances. However, the question of motive cannot be the starting point of any decision making process in a criminal trial but of course at the end, when the court on appreciation of other materials find clear evidence has been brought against the accused by the prosecution, proof of motive would certainly play a very crucial role to reach to the conclusion of guilt of the accused. In other words, then the proof of motive would lend an additional assurance to the conclusion of guilt. We therefore do not appreciate the approach of the trial court. 22. The circumstance of last seen together is the first circumstance relied upon by the prosecution to connect the appellant/convict in the commission of the offence. The circumstance of last seen together in a criminal case comes into play, where two or more persons are "seen together" alive and after an interval of time, while one of them is found alive, other is killed. It assumes great importance in proving the guilt of an accused in a case of murder, in whose company the person killed was last found alive, in absence of eye witness and tangible evidence. Once the prosecution is able to prove that victim was last seen alive together with the accused and the time gap is too short, between the time, victim found alive in the company of the accused and dead, the burden shift on the accused to explain under what circumstances the victim died and to prove his innocence. However, the proof of circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. However, the proof of circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. In this regard the witness Haradhan Mahapatra (PW/7) and Shyamali Mahapatra (PW/10) were examined by the prosecution during the trial to prove that the victim was seen alive last in the company of the accused before she was found dead. According to PW/7 he resides adjacent to the house of the appellant/convict and on the date of incident at about 9.30 a.m. he found four children playing in front of their house including the victim, her two sisters and another and at that time the appellant/convict was standing there. Whereas, according to PW/10 on the date of incident at about 9/9.30 a.m. while she was cooking from the window of the kitchen she noticed that children viz. Raju Mondal's daughter, the victim and two others were playing in front of their house and at that time the appellant/convict was sitting by the side of their cow-shed, situated in front thereof. On a close scrutiny of the evidence of PW/7, we find when villagers were searching for the victim, her mother PW/1 complained to him that it was the appellant/convict who killed her daughter. We further find admittedly, on January 22, 2011, two days after the incident, the PW/7 was examined by the police and obviously then only he for the first time disclosed to the police about such fact. However, from his own evidence, we find, PW/7 was present all through, at the spot, since the time of discovery of the dead body in the pond till the police came there and rescued it. We do not find any convincing reason, why this witness, PW/7, was silent for two days and having sufficient opportunities did not disclose such an important fact to the police. Admittedly, shortly after the incident, PW/7 came to the contact of the police and by that time, he was also aware that the appellant/convict was the prime suspect in the case, thus his non-disclosure of the aforesaid facts to the police and remaining silent for two days, without any explanation, makes his evidence highly incredible and inspire no confidence. Admittedly, shortly after the incident, PW/7 came to the contact of the police and by that time, he was also aware that the appellant/convict was the prime suspect in the case, thus his non-disclosure of the aforesaid facts to the police and remaining silent for two days, without any explanation, makes his evidence highly incredible and inspire no confidence. So far as PW/10 is concerned, we find she is the wife of PW/2 Chandan Mahapatra and from the cross-examination of PW/2, it transpired that the relation between his family and the family of the appellant/convict was not normal and criminal cases were pending between the two families instituted by each other. According to her evidence she heard the PW/1 mother of the victim crying and saying that her daughter was raped and killed by the appellant/convict, it was also her evidence that she found the police came in front of their house. Apart from the fact there was long standing enmity between the family of the PW/10 and that of the appellant/convict and criminal cases were pending against each other, this witness also, in spite of being aware that the appellant/convict was the prime suspect in the case, still when police came in front of her house, like PW/7, she remained silent and did not disclose the fact that she saw the appellant/convict sitting in front of their cow-shed and at that time, the victim with other children was playing in a close-by place. This silence shattered her evidence and not safe to rely upon. 23. Although, on the face of the above infirmities, we are convinced the evidence of PW/7 and PW/10 cannot safely be relied upon, still we are going to answer a very crucial question, whether mere presence of the accused/convict in front of their cow-shed, when the victim and others were playing at a place close to that, without anything more, constitutes a circumstance of last seen together? The circumstance of last seen together of two persons or more has two components. Firstly they were last seen at the same place and secondly both were together. Unless, both the components are satisfied, the circumstance of last seen together cannot said to have been made out. The word "together" convey a sense that two or more persons are in union or in close proximity with meeting of their mind. Firstly they were last seen at the same place and secondly both were together. Unless, both the components are satisfied, the circumstance of last seen together cannot said to have been made out. The word "together" convey a sense that two or more persons are in union or in close proximity with meeting of their mind. In the case at hand, the evidence of PW/7 and PW/10 only indicate about the presence of the appellant/convict in front of their own cow-shed, when in a nearby place, the victim was playing with other. There is nothing un-natural with the presence of the appellant/convict at that place. No evidence has been led, either the victim and the appellant/convict were in close proximity or there was any interaction between them or both left together or while victim left the place, she was followed by the appellant/convict. We are of the opinion the evidentiary materials brought on record by the prosecution does not satisfy the theory of last seen together. 24. The next circumstance relied against the appellant/convict is his abscondence. It is true that the FIR was lodged against him on January 20, 2011 and he was arrested on January 31, 2011, nearly after 11 days and according to the Investigating Officer of the case during that period he was not available at his residence. The learned trial court relying on a two Judges' bench decision of the Hon'ble Apex Court, in the case of Sirdhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) reported in 2010 (3) Supreme 190 , considered such abscondence a very strong incriminating circumstance and held the same gave rise to an adverse presumption against him. In this regard, we propose to refer the observations of the Hon'ble Apex Court in the following cases, Matru v. State of Uttar Pradesh reported in (1971) 2 SCC 75 (2J). The absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of self preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of self preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. Rahman v. State of Uttar Pradesh reported in AIR 1972 SC 110 (3J). Absconding by itself is not conclusive either of guilt or of a guilty conscience. For a person may abscond on account of fear of being involved in the offence or for any other allied reason. Raghubir Singh v. State of Uttar Pradesh reported in (1972) 3 SCC 79 (3J). The act of absconding, even if proved, is normally considered a somewhat weak link in the chain of circumstances utilised for establishing the guilt of an accused person. If the evidence of eye-witnesses is held trustworthy then the act of absconding even if established would serve only to further fortify the satisfaction of the Court with respect to the guilt of the accused concerned, for even an innocent person may well try to keep out of the way if he learns of his false implication in a serious crime reported to the Police. Thus, the act of absconding, even if proved, is normally considered a somewhat weak link in the chain of circumstances and a very small item in the evidence to establish the guilt of an accused. Even an innocent man when charged with a serious crime may feel panicky and well try to keep out of the way and evade arrest. Although, absconsion undoubtedly is a relevant piece of evidence but weight to be attached only when considered with other evidence. 25. Another piece of circumstance pitted against the appellant/convict by the prosecution and considered to be very vital by the learned trial Judge, was recovery of undergarments (jangia) of the victim from the same ditch (doba), where her dead body was found floating, on being pointed out by the appellant/convict. 25. Another piece of circumstance pitted against the appellant/convict by the prosecution and considered to be very vital by the learned trial Judge, was recovery of undergarments (jangia) of the victim from the same ditch (doba), where her dead body was found floating, on being pointed out by the appellant/convict. (a) In this regard from the evidence of the Investigating Officer of the case (PW/16), we find during his police custody, the appellant/convict made a statement to him about the concealment of the undergarment (jangia) of the victim and also agreed that if he was taken to that place, he would help the police to recover the same. Such statement although was admittedly recorded on February 1, 2011 but the police took the appellant/convict to the place, wherefrom that undergarment was recovered, on February 3, 2011 nearly 2 days after. This gap of 2 days between the time of disclosure and discovery of the alleged incriminating article Mat Ext.-1 is quite fatal for the prosecution. In the self-same case Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657 , relied upon by the learned trial Judge, the Hon'ble Supreme Court gave much stress on immediate and proximate cause of the discovery in consequence of the information given by the accused and held as follows, The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. (b) There is another very justifiable reason, which inclines us not to accept the prosecution case that it was the undergarment of the victim, that was discovered consequent to the information furnished by the appellant/convict nearly fifteen days after the alleged incident, after his arrest. It is the evidence of the PW/1 Rejbanur Bibi, the mother of the victim, who in her cross-examination disclosed that she found the frock and panties of her daughter at the cow-shed of the appellant/convict's father and handed over the same to the Investigating Officer of the case. The evidentiary value of alleged discovery of the Mat. It is the evidence of the PW/1 Rejbanur Bibi, the mother of the victim, who in her cross-examination disclosed that she found the frock and panties of her daughter at the cow-shed of the appellant/convict's father and handed over the same to the Investigating Officer of the case. The evidentiary value of alleged discovery of the Mat. Ext.-1, the undergarment of the victim under section 27 of the Evidence Act, thus stands completely blown out by the evidence of PW/1. 26. Furthermore, during the trial the Mat Ext.-1 (jangia) was never identified by any of the witnesses as that of the victim girl. The PW/1, the mother of the victim, would be the best witness but for the reasons best known to the prosecution, during trial she was never examined with reference to that. Even assuming that an undergarment, Mat. Ext.-1 was discovered may be at the behest of the appellant/convict but the fact remains, the same was never proved to be of the victim. In this regard, only the Investigating Officer of the case and the seizure witnesses were examined during the trial. 27. So far as the examination of the appellant/convict under section 313 is concerned, we find sufficient force in the submission of his learned counsel. As many as 59 questions were put to him. Out of the same question No. 49, runs into about two pages, 52 about three pages and 56 about six pages. The remaining questions are also quite lengthy and most of the questions cover almost a page. In fact the learned trial Judge reproduced the entire evidence of each witness to the appellant/convict in his examination under section 313 CrPC. Undoubtedly the trial court is completely oblivious about the very object and purpose of examination of an accused under section 313 CrPC. The legislative intention behind section 313 CrPC is to enable the accused to personally explain circumstances appearing in the evidence against him i.e., the evidence which incriminates him in the commission of the offence. It is well settled the provision is intended to benefit the accused and as its corollary to benefit the court in reaching to its final conclusion. The examination of the accused under section 313 CrPC is not an idle formality. It is well settled the provision is intended to benefit the accused and as its corollary to benefit the court in reaching to its final conclusion. The examination of the accused under section 313 CrPC is not an idle formality. Neither rolling up of several distinct matters in single question nor string together a long series of facts in one question and asked the accused what he has to say about them, is perfect nor in consonance with the object of the said provisions. A duty is cast upon the court to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby to give him an opportunity to explain any such point. This is a uniform view of the Apex Court. In this regard, referring a few decisions of the Apex Court would be sufficient. Jai Dev v. State of Punjab reported in AIR 1963 SC 612 ; Rama Shankar Singh @ Ram Shankar Roy and others v. State of West Bengal reported in AIR 1962 SC 1239 ; Bakhshish Singh Dhaliwal v. State of Punjab reported in AIR 1967 SC 752 ; Basavaraj R. Patil and others v. State of Karnataka and others reported in 2001 SCC (Cri) 87; Parichhat and others v. State of Madhya Pradesh reported in AIR 1972 SC 535 ; Damodar v. State of Rajasthan reported in (2004) 12 SCC 336 . 27A. The mode and manner in which the questions were put to the appellant/convict during his examination under section 313 CrPC undoubtedly resulted in a handicap to the appellant/convict and made it difficult for him to properly appreciate the same and to give his answer and it can legitimately be said he has been seriously prejudiced. We firmly believe that henceforth this particular trial Judge and other Judges shall avoid this slipshod examination, which clearly demonstrates their failure to appreciate the very object of section 313 CrPC and imperfect appreciation of the evidence. 28. In his examination under section 313 CrPC, a question was put to the appellant/convict referring to the evidence of PW/7 and PW/10 that victim was last seen together with him and in reply he claimed that on that day he was not at his house. 28. In his examination under section 313 CrPC, a question was put to the appellant/convict referring to the evidence of PW/7 and PW/10 that victim was last seen together with him and in reply he claimed that on that day he was not at his house. The learned trial court held, this answer of the appellant/convict is a pure plea of alibi and when in spite of sufficient opportunities being given to him, he never made any attempt to prove it, that gives rise to an adverse inference against him and is a strong incriminating circumstance pointing his guilt. In this regard the learned trial court relied on two decisions of the Hon'ble Apex Court, one Dudh Nath v. State reported in (1981) 2 SCC 166 and another Subramanium v. State reported in (2010) 1 SCC (Cri) 1392. It is well-settled the failure to prove alibi is a strong incriminating circumstance against the accused, however, in both the decisions rendered by the Apex Court, a note of caution was given that such failure by alone is not sufficient to convict the accused and may be considered as an additional circumstance or a link in the chain of circumstances. Already herein above we have in detail discussed the reason for which we are not going to put any reliance on the circumstance of last seen together. Therefore, the plea of alibi taken by the appellant/convict and his failure to prove the same is inconsequential. 29. One other circumstance relied upon by the learned trial court against the appellant/convict is that before the incident the appellant/convict tried to outrage the modesty of the victim. In this regard, considering the evidence on record we do not incline to place any reliance on the testimony of PW/1, the mother of the victim. We find from the evidence of PW/12 Manoj Kumar Mahali, an Assistant Sub-Inspector of Police that after receipt of the information that a dead body was floating in a ditch, an unnatural death case was registered at Ghatal Police Station and he was entrusted to hold an enquiry. It is his further evidence at once he visited the spot with constable Sukumar Pramanick (PW/15) and rescued the dead body, held inquest and made arrangement for sending the same for postmortem. It is his further evidence at once he visited the spot with constable Sukumar Pramanick (PW/15) and rescued the dead body, held inquest and made arrangement for sending the same for postmortem. This witness during his cross-examination, however, disclosed at the time of inquest nobody made any allegation against any person or of any foul play behind the incident, which was very much corroborated by PW/12, the constable, who accompanied him. The PW/12 in his cross-examination disclosed at the time of inquest no person including the mother of the deceased brought any allegation against any person. Moreover, we find although the victim was missing on January 20, 2011 from about 9.30 a.m. in the morning and the dead body was discovered around 3.30 p.m. on the same day but no compliant was made to the police till 10 p.m. on January 21, 2011. This inordinate delay remained unexplained in the trial. Taking into consideration together, the above nondisclosure with the delay in lodging the FIR, we are of the considered opinion the above circumstances be kept out from our zone of consideration. 30. In the trial the appellant/convict was charged and convicted for having committed rape and murder of a minor girl aged about 10 years, the daughter of the PW/1. There was no eye witness to the occurrence and prosecution case rests on a series of circumstances. Therefore, in the absence of any positive ocular evidence, the evidence of autopsy surgeon assumes great significance in adjudicating the guilt of the accused. In the trial, Dr. Dipak Kr. Mridha who held the post mortem over the dead body was examined as PW/13. (a) According to the evidence of PW/13, the autopsy surgeon during post mortem examination, following injuries were found on the dead body, 1. External Injuries. a) Anteriorly obliquely measuring 1x 1/16 inch. b) Another abrasion at below left costal margin transversely 1 x 1/16 inch. c) Abrasion at right of below costal margin transversely measuring 1 inch x 1/16 inch. d) Two such abrasion below costal margin length inch x 1/16 inch. e) At left side of face at lateral of left eye 1 inch x 1 inch. g) Another abrasion at left side of neck ? inch x 1/16 inch. h) Another abrasion at left lateral aspect of abdomen ? inch x 1/10 inch. No other external injury was detected and rigor mortis was absent. 2. e) At left side of face at lateral of left eye 1 inch x 1 inch. g) Another abrasion at left side of neck ? inch x 1/16 inch. h) Another abrasion at left lateral aspect of abdomen ? inch x 1/10 inch. No other external injury was detected and rigor mortis was absent. 2. Findings of Internal Examination. a) Head - one Haematoma at right parietal and medial aspect of left parietal region measuring 2 inch x 1 inch. b) Menings - congested c) Brain - congested. d) Neck Haematoma at left side of neck under tissue of abraded area ? inch x ? inch. e) Trachea - mud and sand present below the bifurcation of trachea. f) Lung - both congested. No injury was found around the private parts. Labia majora and labia minora was normal. Hymen intact. (b) During the trial the court put following questions to the PW/13 and answers were obtained. The questions and answers were as follows, Q. The I.O. wanted to know whether the deceased was raped or not? Ans. I did not find any mark of injury around private part & Labia Majora and Labia Minora normal. Hymen intact. No injury mark is found in vagina. So no sign of rape or sexual intercourse is found. Q. Date and time of expiry? Ans. Death was occurred 36 to 72 hours prior to time of P.M. examination. Q. Cause of death? Ans. The death was due to effect of drowning, ante mortem in nature. According to my view the cause of death was due to effect of drowning as noted above. Ante mortem in nature. Viscera was preserved, nail scraping, vaginal swab and blood were preserved. (c) The Investigating Officer (PW/16) after obtaining the post mortem report, sought for certain clarifications from the PW/13, the autopsy surgeon. The reply given by the PW/13 with clarifications was exhibited during the trial and marked Ext.-7. Ext.-7. Q. The cause of death, whether it was homicidal drowning or not? Ans. According to the findings during post mortem examination the death was due to the effect of drowning as noted in the P.M. report, ante mortem in nature. Abrasion which were present at the different places of the body are not sufficient to cause death. No any other findings could be found in favour of homicidal drowning. Ans. According to the findings during post mortem examination the death was due to the effect of drowning as noted in the P.M. report, ante mortem in nature. Abrasion which were present at the different places of the body are not sufficient to cause death. No any other findings could be found in favour of homicidal drowning. Homicidal drowning can be proved by circumstantial evidences by investigation of Investigating Officer. 31. Every post mortem report, consists of two parts, one what the autopsy surgeon during post mortem actually found and observed on the dead body i.e., external and internal injuries, its type, shape, length x breadth x depth of each injuries and the site of injuries, based on facts and noted in such report and the other part, is his opinion as to the nature of the injuries and cause of death. The first part is the outcome of the actual observations and findings of the autopsy surgeon. It is the direct or the primary evidence. When the post mortem report made on the prescribed printed form noted down the nature of injuries, viz., its size, site and shape with the definite expressed opinion and such facts and the opinion was supported by the autopsy surgeon, who held the post mortem while testifying before the court, no court is justified to draw its opinion on its own medical knowledge. The autopsy surgeon, who examined the dead body and conducted the post mortem, is the only competent witness to speak about the injuries and cause of death. Unless there is something which is inherently defective, the court cannot substitute the opinion of the doctor by its own. The opinion of the autopsy surgeon noted in the post mortem report and deposed in court is of great worth and cannot lightly be discarded, unless is proved unreasonable, unscientific, perfunctory, suspicious and unreliable. The convincing opinion of the doctor, held the post mortem and supported by scientific reasons, is of great intrinsic worth and weight. The decisions of the Hon'ble Supreme Court in the case of Mafabhai Nagarbhai Raval v. State of Gujarat reported in AIR 1992 SC 2186 and in the case of State Of Maharashtra v. Manglya Dhavu Kongil reported in 1972 CrLJ 570 (SC) would be most profitable to refer in this regard. . 32. The decisions of the Hon'ble Supreme Court in the case of Mafabhai Nagarbhai Raval v. State of Gujarat reported in AIR 1992 SC 2186 and in the case of State Of Maharashtra v. Manglya Dhavu Kongil reported in 1972 CrLJ 570 (SC) would be most profitable to refer in this regard. . 32. Now, on a close scrutiny of the evidence of PW/13, we find the autopsy surgeon during post mortem noticed seven abrasions and two haematoma, (clotted blood within the tissues), one on the head and another on the neck of the dead body. No injury was detected on the private parts and both the labia majora and labia minora were found normal and hymen was intact. (a) It was elicited by the trial court, from the autopsy surgeon (PW/13), on questioning him, that both her labia majora and labia minora were found normal and hymen intact and no marks of injury was found in the vagina. There was no sign of rape or sexual intercourse. The death according to his opinion was due to drowning and ante mortem in nature. (b) We find against the specific queries of the investigating officer of the case, the witness, PW/13, disclosed vide Ext.-7 that the death was due to the effect of drowning and ante mortem in nature. It was categorically stated that the abrasions found in the dead body were not sufficient to cause death and in favour of homicidal drowning there was no findings. This was also the substantive evidence of PW/13. Furthermore, on the face of the unchallenged evidence of the autopsy surgeon PW/13 that during post mortem he found mud and sand in the trachea of the victim girl, which itself completely rules out the case of any post mortem drowning. (c) The opinion of the PW/13 that the victim was not raped and she died an accidental drowning, stands further fortified from the answer and clarification, given by the said witness during his cross-examination and the same is as follows, .. If any person passes through any throni bushes or bamboo grove in that case he or she may sustain any abrasion injury on her person. .. If any person passes through any throni bushes or bamboo grove in that case he or she may sustain any abrasion injury on her person. .. If the bush of bamboo or its branches are kept in any Doba or pond and in that Doba if any person falls he or she may sustain injury including abrasion and haematoma as it had happened in the instant case. In such circumstances, it is beyond our comprehension how the learned trial Judge came to a conclusion that the victim was killed by throttling. No material suggesting the case of throttling was brought on record. 33. Having regard to the clear and categorical evidence of the autopsy surgeon PW/13, who held the post mortem that no marks of injury was found in the vagina of the deceased and her labia minora and labia majora were normal and hymen intact, his opinion that there was no sign of rape, is scientifically convincing and beyond any reason of doubt. An injury, size ?th inch x ?th inch on the left lateral aspect of the abdomen never remotely suggests that the victim was raped. We fail to understand how the site of injury was considered to be at or around the private parts of the minor victim. This finding of the learned trial court is absurd and inherently defective. The learned trial court most illegally and erroneously on a faulty reasoning and conjectures/inferences replaced the opinion of the doctor by his own medical knowledge, which is not at all desirable, more particularly when even by examination-in-chief by the counsel of the de facto complainant and on his re-examination on recall nothing could be remotely brought out from PW/13 that would even prima facie contradict his conclusion. 34. The learned trial Judge refused to accept the finding and opinion of the post mortem doctor and held that post mortem was conducted most negligently and perfunctorily and went to the extent that may be intentionally under the influence of some extraneous consideration. We do not find any material on record, which may justify conclusion of the trial court that the post mortem was intentionally done negligently and perfunctorily under the influence of some extraneous consideration. We are afraid whether such a conclusion can be made by any judicial officer against a post mortem doctor that he was influenced by extraneous consideration without any iota of materials against him. We are afraid whether such a conclusion can be made by any judicial officer against a post mortem doctor that he was influenced by extraneous consideration without any iota of materials against him. We further find in one place in his judgment, the learned trial Judge held that he was sure if post mortem was conducted properly and as per the guidelines noted in his judgment, some more marks of injury or finger or nail marks could have been found in various parts of the dead body. In a judicial pronouncement, it is not at all desirable nor permissible for a court to be speculative far less so speculative as in the case at hand. Before making any adverse comments and drawing any adverse presumption against any witness more particularly against an Autopsy Surgeon, who in all likely an independent person, it is advisable that court must insist for reasonable and reliable materials in support of such conclusion. Undoubtedly, the findings of the trial court is completely perverse and not only against the weight of evidence but is altogether against the evidence itself and are so perverse that no reasonable person would arrive at those findings. The expression perverse has been dealt with in a number of cases. A few of them are referred herein below, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501 ; Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. AIR 1966 Cal 31 ; Triveni Rubber & Plastics v. CCE AIR 1994 SC 1341 . We strongly deprecate above observations, which are totally uncalled for. 35. To discard and nullify the evidence of the post mortem doctor, the trial Judge relied on a few passages from different authority on medical jurisprudence, which are absolutely contrary to what has been uniformly and authoritatively held by the Apex Court in its several decisions. We feel referring some of the decisions on this point would be sufficient. In the case of Sunderlal v. The State of Madhya Pradesh AIR 1954 SC 28 , it was observed by the Apex Court that, the conviction of the accused by the High Court was mainly based on passages from the text books of Modi on Medical Jurisprudence and Toxicology and these passages had not been put to Dr. In the case of Sunderlal v. The State of Madhya Pradesh AIR 1954 SC 28 , it was observed by the Apex Court that, the conviction of the accused by the High Court was mainly based on passages from the text books of Modi on Medical Jurisprudence and Toxicology and these passages had not been put to Dr. Dube when he was in the witness box with the result that the High Court was not right in coming to the conclusion adverse to the accused by relying upon the same. In the case of Masji Tato Rawool and others v. State of Maharashtra (1971) 3 SCC 416 , a three Judges' bench of the Hon'ble Apex Court in similar situation observed as follows, We are unable to appreciate the reasons given by the High Court in support of its conclusion in regard to this injury. This was a matter for the doctor to clarify and explain and if the High Court had any doubt in regard to the medical evidence the doctor should have been again summoned as a witness and questioned on this point. In the case of Piara Singh and others v. State of Punjab 1977 SCC (Cri) 614, the Apex Court held, It is true that High Court has relied on a number of books on medical jurisprudence to support the evidence of Dr. Jatinder Singh. We feel that it was not necessary for the High Court to do so unless the books were put to the expert. Recitals in the books do not provide a sufficient guide to determine the truth or falsity of the testimony of an expert. Similar was the view of the Apex Court in the case of Kusa and others v. State of Orissa 1980 SCC (Cri) 389; Bhagwan Das and another v. State of Rajasthan AIR 1957 SC 589 ; Baldev Raj Miglani v. Smt. Urmila Kumari 1979 SCC (Cri) 875. 36. Similar was the view of the Apex Court in the case of Kusa and others v. State of Orissa 1980 SCC (Cri) 389; Bhagwan Das and another v. State of Rajasthan AIR 1957 SC 589 ; Baldev Raj Miglani v. Smt. Urmila Kumari 1979 SCC (Cri) 875. 36. The learned trial Judge gave much stress on the recovery of Mat Ext.-1, an alleged undergarment of the victim at the behest of the appellant/convict under section 27 of the Evidence Act, however, the learned trial Judge in his extreme over jealousness completely over looked not only the alleged recovery of Mat Ext.-1 was not immediate and proximate consequence of the information allegedly given by the appellant/convict, there was clear 2 days gap in between, while the information was obtained on February 1, 2011 and recovery was made on February 3, 2011 and top of everything the prosecution only examined PW/16, the Investigating Officer of the case, PW/4, PW/8 and PW/9 to prove the factum of recovery of Mat Ext.-1, but no witness to prove that the Mat Ext.-1 was of the victim and she wore it on that morning, when she was sexually violated. Therefore, such recovery never connected the appellant/convict with the commission of offence. 37. We have already noted that the learned trial Judge relied on three decisions of the Apex Court viz., Gurucharan Singh v. State (supra), State of Punjab v. Ramdev Singh (supra), Narayanamma (Kum) v. State of Karnataka and others (supra). So far as the first decision is concerned, the Hon'ble Apex Court repelled the attempt of the defence to seek support of the medical evidence that no marks of violence on the private parts or elsewhere on the person of the prosecutrix was found, therefore there was no rape, accepting the substantive evidence of the prosecutrix corroborated by the evidence of other witnesses, who rescued her from the place of the accused and soon after her rescue she narrated to them the entire story. The Apex Court in that case also refused to accept the case of the defence that prosecutrix was a consenting party, therefore no case of rape was made out, having found she was minor. The facts of that case being completely different from the facts of the case in hand, the above decision has no manner of application in the present case. The facts of that case being completely different from the facts of the case in hand, the above decision has no manner of application in the present case. Coming to the next decision, in our opinion it would be sufficient for us to say that the same has no manner of application in the facts of the present case only referring three passages therefrom, - Para 11. Further, the victim's evidence has been discarded by holding that it is at variance with the medical evidence. The High Court has not indicated as to in what way it is at variance with the medical evidence. Mere statement that according to the doctor, the victim's vagina admitted two fingers and she could on earlier occasions have had sexual intercourse five, ten or fifteen times rules out rape by the accused once as alleged, in no way casts doubt on the victim's evidence. Para 12. Learned counsel for the respondent-accused pointed out that rape as claimed by the victim was discounted by the evidence of PW 2, who did not find visible injury when she medically examined the victim. In our opinion the same is of no consequence. The doctor examined the victim after about three weeks. That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor. Merely because the friend of the victim was not examined that also cannot be a suspicious circumstance to throw suspicion on the victim's evidence. Para 13. Another factor which seems to have weighed with the High Court is the evidence of the doctor, PW 2 that there were signs of previous sexual intercourse on the victim. That cannot, by any stretch of imagination, as noted above, be a ground to acquit an alleged rapist. Even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Finally, if we may say as a last straw, is the fallacy in the High Court's reasoning about lack of evidence relating to the employment of the victim as a maidservant. The High Court completely overlooked the fact that suggestions were given to witnesses, more particularly PWs 4, 5 and 7 that the accused or his wife had threatened to put an end to the victim's service as a maidservant because of her immoral character, or refusal to refund the amount taken as advance for her employment as a maidservant. Similarly, the last decision relied upon by the trial court has also no manner of application. In that case High Court disbelieved the prosecutrix as her statement was not corroborated by medical evidence but the Apex Court found that prosecutrix was a reliable witness and she was corroborated on all material particulars not only by the medical evidence but by the evidence of PW/2, who had appeared on the scene of crime and seen it being committed by the accused respondents. Last but not the least, in all the aforesaid cases, the Apex Court convicted the accused on the evidence of the victim and having found the same was corroborated by other evidence, therefore on direct evidence, which are absent in the present case, where the victim is dead. 38. On our above findings, we conclude that the prosecution has miserably failed to bring home the charges against the appellant/convict and accordingly his conviction for the offences punishable under sections 302/376/201 IPC and the sentence passed against him thereunder stands set aside. The appeal stands allowed and death reference is rejected. The appellant/convict, who is now under incarceration, at once be released from the Correctional Home, if not detained in connection with any other case. 39. The appeal stands allowed and death reference is rejected. The appellant/convict, who is now under incarceration, at once be released from the Correctional Home, if not detained in connection with any other case. 39. Before parting with, we must record our deep concern against the erroneous, illegal, misconceived approach of the learned trial court in permitting, the lawyer engaged by the de facto complainant to examine-in-chief one witness and conduct the trial, on the face of the clear mandate of section 225 CrPC, according to which mandatorily all Sessions Trial must be conducted by the Public Prosecutor. Of course, the learned trial Judge, who delivered the judgment, was not party to that but the effect of such evidence was taken into account by him in deciding the question of guilt of the accused. We further record our utter dissatisfaction, about the unmindful and mechanical approach of the learned trial Judge and we strongly deprecate the same. Record shows that 1.2.2012, after the PW/13, the autopsy surgeon was examined in-chief and cross-examined, his evidence was closed and he was discharged. Thereafter, on 10.5.2012, an application was moved by the Public Prosecutor for re-calling of the said witness for his re-examination and on 11.6.2013 such prayer was allowed. Since, on five earlier occasions, the prosecution could not produce the said witness as also on that day, the learned trial court closed the evidence of PW/13. However, on 4.8.2014, the learned Public Prosecutor produced PW/13 and he was re-examined on re-call. It is beyond our comprehension, once because of non-production of PW/13 in court for his re-examination on re-call, the learned trial court closed his evidence and when such order was in force, neither recalled, of course, the learned trial court has no power to re-call a final order of closure of evidence, nor was altered by a Superior Court, the trial court allowed the prosecution to re-examine PW/13 on re-call. Record reflects the anxiety of the learned trial Judge against the non-availability of the Public Prosecutor during the trial which caused serious obstruction in administration of justice and his direction to remove the Public Prosecutor in charge for appointment of new one and accordingly the Public Prosecutor was changed. Record reflects the anxiety of the learned trial Judge against the non-availability of the Public Prosecutor during the trial which caused serious obstruction in administration of justice and his direction to remove the Public Prosecutor in charge for appointment of new one and accordingly the Public Prosecutor was changed. We also do not approve the manner in which examination of the appellant/convict under section 313 CrPC was conducted and various observations made by the learned trial Judge against the Autopsy Surgeon PW/13 Dr. Dipak Kr. Mridha in absence of any tangible materials. In the light of our findings herein above we not only deprecate the faulty approach of the learned Trial Judge in appreciating the evidence on record but also denounce his manner of rejection of the evidence of an expert like the autopsy surgeon in the present case and accordingly we direct the learned Registrar General to appraise the learned Trial Judge of our displeasure that without any iota of evidence the learned Trial Judge came to hold that the victim girl was throttled to death. We can only hope that this judgment, when brought to the notice of the learned Trial Judge, will act as guidance to him in matters relating to appreciating of evidence. Office is directed to send down the LCR together with the copy of the judgment to the court below at once. Malay Marut Banerjee, J. : I agree. Death reference rejected.