JUDGMENT : Biswajit Mohanty, J. 1. Since both the Death Reference and Jail Criminal Appeal arise out of the judgment of conviction dated 21.11.2015 and order of sentence dated 23.11.2015 passed by the learned Addl. Sessions Judge, Champua in S.T. Case No.96 of 2013, these were heard together and are disposed of by this common judgment. 2. By the impugned judgment and order, the sole convict has been sentenced to capital punishment under Sections 302/34 IPC. Further, he has been sentenced to imprisonment for life under Section 376 (2) (g) of IPC. He has also been sentenced to undergo R.I. for five years under Sections 201/34 IPC. The learned trial court has made clear that both the sentences under Sections 376(2)(g)/201/34 IPC are to run concurrently. No sentence exists with regard to payment of any fine. The reference made by the learned trial court under Section 366 of Cr.P.C. for confirmation of death sentence has been registered as DSREF No.4 of 2015 and the appeal preferred by the convict has been registered as Jail Criminal Appeal No.69 of 2015. 3. The case of the prosecution in brief is that on 1.8.2012 the deceased girl, namely, Bindhia Mahakud aged about 13 years, a student of Class-VIII of Barbil Municipality High School had gone to attend the tuition under P.W.5 at 7.00 A.M. She was expected to return by 9.00 A.M. But as she did not return to her house by 9.00 A.M., the informant (P.W.2) gave a phone call to P.W.1, the tuition teacher, who replied that the deceased left for her house after tuition at about 9.00 A.M. In such background, P.W.2 (informant) along with his relatives (P.Ws.3,5 & 9) searched for the deceased in different places and around 2.00 P.M., the dead body of the deceased was found inside Baghiahudi jungle in a naked condition with a piece of cloth in her mouth and various injuries on her person. Then, P.W.2 along with others brought the deceased to Barbil Hospital and around 4.00 P.M. of the same day, P.W.2 lodged F.I.R. under Ext.1 indicating therein that his daughter has been raped and murdered by somebody. Basing on such information, P.W.29, the first I.O. registered Barbil P.S. Case No.128 of 2012 and took up investigation of the case. During investigation, inquest was held and on the same day, i.e., 1.8.2012, P.W.11 conducted the postmortem examination over the dead body. Basing on such information, P.W.29, the first I.O. registered Barbil P.S. Case No.128 of 2012 and took up investigation of the case. During investigation, inquest was held and on the same day, i.e., 1.8.2012, P.W.11 conducted the postmortem examination over the dead body. Further, in course of investigation, various witnesses were examined and on 13.8.2012, Mata Munda, Jiten Munda and Biswanath Gope @ Naru were arrested. Further, on 13.8.2012 Mata Munda led to recovery of a “Dauli”, the weapon of offence after his statement was recorded under Ext.17 as found from LCR and accordingly, seizure memo was prepared under Ext.6/1. Similarly, on 13.8.2012 Jiten Munda led to recovery of black colour School bag, some torn books, one ball pen and a rolling khata after his statement was recorded under Ext.18 as found from LCR and accordingly, seizure memo was prepared vide Ext.19. On 6.9.2012, Tapu @ Mangal Purty @ Suri was arrested by P.W.29 Further, during course of investigation, several other things were seized, which have been marked as Exibits. On 25.9.2012, the investigation was taken over by P.W.28, who is the second I.O. He sent the wearing apparels and biological sample of the deceased and wearing apparels of Mata Munda, Jiten Munda, Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri and their biological samples along with one “Dauli” to S.F.S.L., Rasulgarh, Bhubaneswar for their chemical examination. On 5.12.2012, he submitted the charge sheet against the above four persons under Sections 376(2)(g)/302/201/34, I.P.C. showing Harjeet Singh @ Saka @ Kana, Bablu Sandil and Sikandar Singh @ Sachindar as absconders. Since the alleged offences were triable by the Court of Sessions, the case was commited to the court of learned Addl. Sessions Judge, Champua for their trial. Learned trial judge framed charges under Sections 376(2)(g)/34, I.P.C., Section 302/34 IPC and under Section 201/34 IPC; to which they pleaded not guilty and claimed to be tried. Accordingly, they faced trial in S.T. No.09/2013. On 18.6.2013, present convict-Harjeet Singh @ Saka @ Kana was arrested by P.W.28 and was sent for medical examination. His biological sample and wearing apparels were also collected. On 20.8.2013, the case involving convict-Harjeet Singh @ Saka @ Kana was committed to the court of learned Additional Sessions Judge, Champua for his trial. Accordingly, they faced trial in S.T. No.09/2013. On 18.6.2013, present convict-Harjeet Singh @ Saka @ Kana was arrested by P.W.28 and was sent for medical examination. His biological sample and wearing apparels were also collected. On 20.8.2013, the case involving convict-Harjeet Singh @ Saka @ Kana was committed to the court of learned Additional Sessions Judge, Champua for his trial. The learned trial Judge on 24.10.2013 framed charges under Section 376(2)(g), I.P.C., Section 302/34, I.P.C. and under Sections 201/34, I.P.C., to which he pleaded not guilty and claimed for trial. Accordingly, he faced trial in S.T. No.96 of 2013. 4. In order to prove its case, in S.T. No.96 of 2013 the prosecution has examined as many as 29 witnesses including the doctors and investigation officers besides exbiting 27 documents. In his statement under Section 313 Cr.P.C., the convict took the plea of denial. Further, the convict did not choose to examine any witness in support of his defence. On culmination of trial, the convict-appellant was found guilty for commission of offences punishable under Sections 376(2)(g)/302/201/34 IPC and accordingly he was convicted and sentenced as already stated herein before. In coming to such a conclusion, the learned trial court mainly relied on the version of P.W.20 and the eye-witness version of P.W.16. He has also relied on statements of Mata Munda and Jiten Munda recorded under Section 27 of the Indian Evidence Act, 1872 implicating the present convict and the evidence of P.W.11, the Doctor conducting Post Mortem report. It is important to note here that Mata Munda, Jiten Munda, Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri stood their trial in S.T. Case No.9 of 2013 and were also convicted likewise. For this, they filed JCRLA No.70 of 2015 before this Court and likewise, reference was also made by the learned trial court under Section 366, Cr.P.C. for confirmation of their Death Sentence. The same has been registered as DSREF No.3 of 2015. 5. Mr. Debashis Panda and Mr. D.P. Dhal, learned Amici Curiae appearing for the convict-appellant advanced the following arguments:- (a) The learned trial court according to them has gone wrong in convicting Harjeet Singh @ Saka @ Kana as neither P.W.16 nor even P.W.20 while stating the names of convicts-Mata Munda and Jiten Munda, has not named the sole convict. 5. Mr. Debashis Panda and Mr. D.P. Dhal, learned Amici Curiae appearing for the convict-appellant advanced the following arguments:- (a) The learned trial court according to them has gone wrong in convicting Harjeet Singh @ Saka @ Kana as neither P.W.16 nor even P.W.20 while stating the names of convicts-Mata Munda and Jiten Munda, has not named the sole convict. Thus, according to them, there exists no evidence against Harjeet Singh @ Saka @ Kana to implicate him in this case. They put special emphasis on the fact that though P.W.16 and P.W.20 deposed that they knew all the convicts, however, strangely while they took the names of Mata Munda and Jiten Munda, they never took the name of Harjeet Singh @ Saka @ Kana. (b) Further, the learned trial court should not have relied upon the evidence of P.W.16, as he was examined by the police, seven days after the date of occurrence. In this connection, they relied on a decision of the Supreme Court in the case of State of Orissa v. Mr. Brahmananda Nanda reported in (1976) 4 SCC 288 . Further, P.W.16 has not been supported by P.W.21, who happens to be his brother. This is also one of the reasons as to why the learned trial court should not have believed the version of P.W.16. (c) With regard to the evidence of P.W.20, both the learned Amici Curiae submitted that his evidence ought not to be believed on account of his peculiar behaviour, who despite claiming to have witnessed lifting of the deceased by Mata Munda and Jiten Munda at about 9.30 A.M. morning, chose to remain silent in the matter till evening without coming to the help of the deceased and by not informing the police authorities immediately. According to the learned Amici Curiae, he has not seen any thing and is a set up witness and his version ought not to be believed. Further, from his own evidence, it is clear that he has been examined by the police 11 days after the date of occurrence though he claimed to have narrated the incident on the same evening to one A. Ramachandra Naik, A.S.I., who has not been examined this case. All these make the version of P.W.20 suspect and his evidence ought not to have been relied upon by the learned trial court. All these make the version of P.W.20 suspect and his evidence ought not to have been relied upon by the learned trial court. (d) There exists no evidence to show any motive/pre-planning for committing such crime vis-à-vis the present convict. According to them, the circumstancial evidence for arriving at a conclusion of muder being committed by present convict is not fool-proof as the chain of circumstance is not complete. (e) By not examining Rebati Behera about whom P.Ws. 2, 3,4 and 13 have deposed; the prosecution has deliberately withheld an important witness and this should be viewed unfavourably, in the background of Section 114 (g) of the Indian Evidence Act. (f) A scanning of evidence of P.W.11 according to both the learned Amici Curiae for the convict and more particularly the nature of injuries described by P.W.11 cannot lead to a conclusion that this is a case of gang rape. (g) Learned trial court has gone wrong in relying on the entire statements of Mata Munda and Jiten Munda as rendered under Section 27 of the Indian Evidence Act, traveling beyond the well defined requirements under Section 27 of the Indian Evidence Act. The learned trial court has unnecessarily believed the entire statements of the convicts Mata Munda and Jiten Munda involving the present convict forgetting the requirements of Section 27 of the Indian Evidence Act as has been made clear by the decision of Privy Council in Pulukuri Kottaya and others v. Emperor reported in AIR (34) 1947 Privy Council 67. Both the learned Amici Curiae further submitted that evidence even with regard to recovery of “Dauli”, “School bag”, “Ball Pen” & “Books” is inadmissible, as these were never produced and proved before the learned trial court. Since these were never produced, these could never be confronted to the seizure witnesses, P.Ws.10 and 15. Further, the “School bag”, “Ball Pen” & “Books” also could not be confronted to the father of the deceased-P.W.1, mother of the deceased-P.W.2, sister of the deceased-P.W.3, and brother of the deceased-P.W.4 for identification. Therefore, the discovery of “Dauli”, “School bag”, “Ball Pen”, “Books” & “Khatas” are of no consequence and should have been ignored by the learned trial court. Instead of doing that, the learned trial court wrongly placed reliance on these materials. 6. Therefore, the discovery of “Dauli”, “School bag”, “Ball Pen”, “Books” & “Khatas” are of no consequence and should have been ignored by the learned trial court. Instead of doing that, the learned trial court wrongly placed reliance on these materials. 6. In such background, both the learned Amici Curiae pointed out that the Jail Criminal Appeal should be allowed and the death reference be discharged by setting aside death sentence. However in the alternative they submitted that even if this Court comes to a conclusion that the convict is the author of crime as has been found by the learned trial court even then in the factual background of the present case, imposition of death penalty is uncalled for as the learned court below has not discussed all the mitigating factors in favour of the convict. Secondly, prosecution has not led any evidence with regard to probability of the convict committing criminal acts in future so as to constitute a continuing threat to the society and with regard to probability that the convict can not be reformed and rehabilitated. Further, they submitted that since there exists no proof of criminal antecedent against the convict, this is another mitigating facts in his favour. Lastly, they submitted that out of the seven accused persons, five have been convicted while two are absconding. In case after execution of death sentence, the two absconders are arrested and after such arrest, they confess to have committed murder for some other reasons after departure of the five convicts from the spot of occurrence, then the confirmation of death sentence would constitute grave miscarriage of justice. They further argued that unlike any other punishment, a capital punishment is irrevocable. Further, since there exists no direct evidence relating to murder of the deceased being committed by present convict, in such a situation, the capital punishment is uncalled for. In this context, they relied on the decisions of the Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra reported in (2013) 55 OCR (SC) 623 and State of Maharashtra v. Nisar Ramzan Sayyed reported in 2017 SCC Online SC 356. 7. Mr. J. Katikia, learned Addl. Government Advocate while supporting the judgment and sentence of conviction of the learned trial court, submitted that on account of delay in examining P.W.16 the version of the eye-witness-P.W.16, cannot be disbelieved as he was threatened to be killed by convict-Mata Munda. 7. Mr. J. Katikia, learned Addl. Government Advocate while supporting the judgment and sentence of conviction of the learned trial court, submitted that on account of delay in examining P.W.16 the version of the eye-witness-P.W.16, cannot be disbelieved as he was threatened to be killed by convict-Mata Munda. In addition to this, P.W.11 has also corroborated the commission of rape by deposing that the genital injury on the deceased strongly suggest sexual assault. In this context, he relied on the decision of the Supreme Court in Banti @ Guddu v. State of Madhya Pradesh reported in (2004) 1 SCC 414 . Relying on the said decision, Mr. Katikia submitted that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witness, the defence cannot get any advantage therefrom. Here, admittedly no such question was asked by the defence to any of the I.Os. With regard to the evidence of P.W.20, he submitted that the same partly corroborates the version of P.W.16 with regard to lifting of the deceased. Merely, because P.W.20 did not come forward to the report the matter to the police immediately, his version cannot be rejected on the ground that he is a set up witness. With regard to argument of learned Amici Curiae relating to absence of planning and motive, Mr. Katikia, learned Addl. Government Advocate submitted that the version of P.Ws.16 & 20 would show that there was pre-planning amongst the convicts to commit the crime. With regard to non-examination of Rebati Behera, Mr. Katikia, learned Addl. Government Advocate submitted that none of the P.Ws.3,4,5 & 13, who deposed about her told anything about Rebati Behera having told them anything about the incidents of either rape or murder. In such background, for non-examination of Rebati Behera, no adverse inference can be drawn. With regard to the argument that P.W.11 nowhere says that the deceased was a victim of gang rape, Mr. Katikia, learned Addl. Government Advocate relying on Explanation-(1) to Section 376 IPC as it stood on the date of occurrence submitted that it is clear that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of sub-section (2) of Section 376 IPC. Further, he argued that with regard to conviction for committing the offence of murder, the convicts were last seen with the deceased as stated by P.W.16 and P.W.20 at about 9.30 to 10.00 A.M. on 1.8.2012 and the dead body was located inside the jungle at around 2.00 P.M. of the same day and the convicts including Harjeet Singh @ Saka @ Kana have offered no explanation in their statements under Section 313 Cr.P.C. Further, as per the evidence of P.W.11, who carried out the postmortem at 9.00 P.M. on 1.8.2012, the time since death was within 6-12 hours. Further, convicts-Mata Munda and Jiten Munda gave recovery of “Dauli”, “School bag” and other materials respectively pursuant to their statements before the police. Thus, there existed enough circumstantial evidence to come to a conclusion that the convicts including Harjeet Singh @ Saka @ Kana were the authors of the murder of the deceased. In such background, he submitted that the learned trial court has correctly convicted Harjeet Singh @ Saka @ Kana under Sections 376 (2) (g)/302/201/34 IPC, & correctly awarded the various sentences. Further, he submitted in the facts and circumstances that the capital punishment as awarded by the learned trial court ought not to be touched. In this context, he relied upon the decisions of the Supreme Court in Bachan Singh v. State of Punjab reported in (1980) 2 SCC 684 , Machhi Singh and others v. State of Punjab reported in (1983) 3 SCC 470 , Laxman Naik v. State of Orissa reported in (1994) 3 SCC 381 , Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253 and Purusottam Dashrath Borate and another v. State of Maharashtra reported in (2015) 6 SCC 652 . In the alternative, Mr. Katikia, learned Addl. Government Advocate submited in case while upholding the conviction under Sections 302/34, I.P.C., this Court feels not inclined to impose capital punishment and wishes to alter the same, then the convict should be sentenced to life imprisonment with minimum 25-35 years of jail term without remission or till the rest of his natural life. In this context, learned Addl. Government Advocate submited in case while upholding the conviction under Sections 302/34, I.P.C., this Court feels not inclined to impose capital punishment and wishes to alter the same, then the convict should be sentenced to life imprisonment with minimum 25-35 years of jail term without remission or till the rest of his natural life. In this context, learned Addl. Government Advocate relied on the decisions of the Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in (2008) 5 Sup.482, Raj Kumar v. State of Madhya Pradesh reported in (2014) 5 SCC 353 , Selvam v. State through Inspector of Police reported in (2014) 12 SCC 274 and the decision of this Court in State of Orissa v. Ardhu Chendreya reported in (2010) 47 OLR 953. 8. Perused the L.C.R. 9. It is not disputed that the deceased was sexually assaulted and met with a homicidal death. This has been clear as per the evidence of P.W.11. Now, it is to be seen as to whether the present convict is one of the authors of crime. For this, we have to analyse oral and documentary evidence available in the L.C.R. P.W.1 is the tuition teacher, who stated that on the date of occurrence, the victim had come to her to take private tuition from 7.00 A.M. to 9.00 A.M. After 9.00 A.M. she along with others left for their respective house. Around 9.30 A.M. to 10.00 A.M., P.W.2 telephoned her and wanted to know if the victim had left her house after taking tuition and she answered in the affirmative. On that date at about 3.00 P.M., she heard that the victim had been murdered after being raped by some persons. She denied knowing the convict-Harjeet Singh @ Saka @ Kana. In her cross-examination, she stated that the victim was a student of Class-VIII and she never maintained any register for the student who took tuition from her. She denied the suggestion that she has not stated to police that P.W.2 had telephoned her to know if the victim had left her house after taking tuition. P.W.2 is the father of the deceased and informant in the present case. In his deposition, he has stated that he knew the convict and the occurrence took place on 1.8.2012 (Rakhipurnima day) at Bagiyahudi jungle of Belakundi. According to him, the deceased was reading in Class-VIII. P.W.2 is the father of the deceased and informant in the present case. In his deposition, he has stated that he knew the convict and the occurrence took place on 1.8.2012 (Rakhipurnima day) at Bagiyahudi jungle of Belakundi. According to him, the deceased was reading in Class-VIII. She used to go to attend the tuition class under a lady teacher who was residing near Forest Guest House at Barbil. On the date of occurrence during morning hour, she went to tuition by walking and was returning from the tuition class at about 9.00 A.M. When she did not return, P.W.2 gave a phone call to the tuition teacher, who answered that the deceased has left her house after tuition at about 9.00 A.M. Not convinced, P.W.2 went to the tuition teacher’s house and contacted her personally and got confirmed from her that his daughter in fact had left her house at about 9.00 A.M. after tuition. Then, he also contacted fellow classmates of his daughter and became confirmed of the fact that his daughter has left the house of the tuition teacher at about 9.00 A.M. after tuition. Thereafter, he searched for his daughter and while searching, he could get the brief (underwear) of his daughter, which was identified by his wife (P.W.5), who was also searching for the deceased daughter. During search, P.W.2 was joined by many co-villagers and the dead body of his daughter was located lying about 150 meters away from the place where the brief of the deceased was lying, in a naked condition. He found the dead body with a piece of cloth pushed into the mouth with cut injuries. According to him, there was bleeding injuries along with white discharge from her vagina and they put the brief on the dead body and took her to Barbil medical. From the above condition, he suspected that his daughter has been raped and murdered by some persons and accordingly he reported the matter to the police. He proved Ext.1 dated 1.8.2012 as F.I.R. He was examined by the police, and, thereafter, police held inquest over the dead body and accordingly prepared the inquest report (Ext.2). In his cross-examination, he has stated that he has not seen the occurrence and has no direct knowledge about the same. The police scribed the F.I.R. as per his narration. He proved Ext.1 dated 1.8.2012 as F.I.R. He was examined by the police, and, thereafter, police held inquest over the dead body and accordingly prepared the inquest report (Ext.2). In his cross-examination, he has stated that he has not seen the occurrence and has no direct knowledge about the same. The police scribed the F.I.R. as per his narration. When he first saw the dead body, his brother (P.W.13) was there with him. Further according to him, injuries caused to his daughter appeared to have been caused by the blunt side of a weapon. On the day after the occurrence, he heard from the villagers that the convict along with others were the authors of the crime. Accordingly, he informed the police about the above fact. He denied a suggestion that he had never stated before the police that when he detected the naked body, he found a piece of cloth pushed into her mouth and there was bleeding injuries and presence of white discharge on her vagina. P.W.3 is the brother of the decased. He deposed that the occurrence took place on 1.8.2012 during morning hour. The deceased used to go to take tuition from a private tutor at about 7.00 A.M. and return at about 9.00 A.M. On the date of occurrence, as she did not return, P.W.2 went to the tuition teacher, where he learnt that the deceased had already left after taking tuition, and, thereafter, P.W.2 contacted her friend and could know that in fact after tuition, she was returning to the house. Thereafter, P.W.2 started searching and on the way, it was informed by one Rebati Behera that she had seen the deceased while returning from tuition along the public road near Baghiahudi jungle. Thereafter, P.W.2 and P.W.5 along with others went to Baghiahudi jungle in search of the deceased. He (P.W.3) also accompanied them. Initially, the brief (underwear) of the deceased was located. On further search, the dead body was found lying under a tree in a naked condition with a herbal rope tied to the neck with injuries on her chest and body. Thereafter, the victim was removed to the medical where she was declared dead. He (P.W.3) also accompanied them. Initially, the brief (underwear) of the deceased was located. On further search, the dead body was found lying under a tree in a naked condition with a herbal rope tied to the neck with injuries on her chest and body. Thereafter, the victim was removed to the medical where she was declared dead. In his cross-examination, he has stated that he saw the dead body at about 2.00 P.M. and P.W.4 was all along present in her house and she was informed about the death of the deceased in the evening. He denied a suggestion that he has not stated to the police that there were injuries on the person of the deceased sister when they located her dead body. Thus, the evidence of P.W.3 broadly corroborates the evidence of P.W.2. P.W.4 is the sister of the deceased, who in her deposition stated that on the date of occurrence during morning hour at about 7.00 A.M., the deceased went to take tuition to the house of her tuition teacher which is located near a forest bunglow of Barbil. She was supposed to return at about 9.00 A.M. As she did not return, P.W.2 contacted with her friend and could know that after tuition, she left the house of her tuition teacher and thereafter, P.W.2 and some other co-villagers went in search of the deceased and on the way one Rebati Behera told him that she had seen the deceased near Baghiahudi jungle on the public road while returning from tuition. Thereafter, P.W.2 could locate the brief (underwear) of her sister which was identified by her mother-P.W.5 and there after the dead body was located near the tree inside Baghuahudi jungle with a piece of cloth in her mouth and injury on the dead body. In her cross-examination, she admitted that she never accompanied P.W.2 and P.W.5 for searing the deceased. Her information about occurrence was based on information received from P.W.2 and P.W.5 and co-villagers. P.W.5 is the mother of the deceased and wife of P.W.2, who in her deposition has stated that she knew the convict-Harjeet Singh @ Saka @ Kana since he is a co-villager and the occurrence occurred on 1.8.2012. Her information about occurrence was based on information received from P.W.2 and P.W.5 and co-villagers. P.W.5 is the mother of the deceased and wife of P.W.2, who in her deposition has stated that she knew the convict-Harjeet Singh @ Saka @ Kana since he is a co-villager and the occurrence occurred on 1.8.2012. She reiterated the story as given out by P.W.2 relating to the deceased going for tuition with a lady teacher and when the deceased did not return by 9.30 A.M., P.W.2 went to the house of the tuition teacher and from there he learnt that the deceased after completing her tuition had left the house of the tuition teacher at about 9.00 A.M. On the way, P.W.2 met one Rebati Behera who informed that she had seen the deceased-daughter returning after tuition class by walking along the road near Baghiahudi jungle. Thereafter, she (P.W.5) and her husband-P.W.2 and others searched for her inside the jungle and P.W.2 could locate a brief (underwear), which P.W.5 identified as the brief belonging to his deceased daughter. Thereafter, they searched for the deceased and ultimately could locate the naked body with a piece of cloth pushed into the mouth and a small rope tied to her neck with injuries on her chest and her vagina was bleeding with white discharge. They put the brief on the decased and removed her to the Barbil medical, where she was declared dead. From the injury and circumstances, she believed that the deceased was raped and then killed. In her cross-examination, she admitted that she never stated before the police that she found the injury on the person and vagina of the deceased. She also admitted that she had not seen the occurrence and thus she did not have any direct knowledge about rape and murder. She also stated that the dead body was found at around 2.00 P.M. and on the date of occurrence, the deceased was wearing a two piece dress having mixed white colour and green. Thus, broadly P.W.5 corroborates the evidence of of P.W.2. P.W.6 is the doctor, who had examined convict-Mata Munda on 13.8.2012 and found him capable of doing sexual intercourse. On the same day, on police requision, he had also examined convict-Jiten Munda and found him capable of doing sexual intercourse. Thus, broadly P.W.5 corroborates the evidence of of P.W.2. P.W.6 is the doctor, who had examined convict-Mata Munda on 13.8.2012 and found him capable of doing sexual intercourse. On the same day, on police requision, he had also examined convict-Jiten Munda and found him capable of doing sexual intercourse. However, he did not find any physical clue of recent sexual intercourse from the clothings worne by Mata Munda and Jiten Munda. He proved Exts.3 and 4. The defence declined to cross-examine P.W.6. P.W.7 happens to be the President of Mahila Mahasangha Samabaya Samiti and a social worker. In her deposition, she stated that she did not know about the convicts. The occurrence took place on 1.8.2012 at Belakundi jungle. On that date while she was present in her office, one Ashok Prajapati telephoned her from the medical informing her about rape and murder of a young girl. She reached the medical at around 4.00 P.M. and found a number of critical injuries on the dead body. She also stated that there was bleeding injury on the private part of the victim. In her presence, police held inquest and she signed the inquest report. In her cross-examination, she admitted that she did not know the convicts. P.W.8 is the Doctor, who examined convict-Mata Munda on 12.8.2012 and found simple injuries on his person. P.W.9 happens to be the younger brother of P.W.2 (informant). In his deposition, he has stated that he knew the convict-Harjeet Singh @ Saka @ Kana present in the dock. The occurrence took place on 1.8.2012 (Rakhipurnima day). On that day, after taking tuition though the deceased left the house of the tuition teacher at about 9.00 A.M., as she did not return, her tuition teacher was contacted and they could know that she had left her tuition teacher at about 9.00 A.M. Thereafter, a search was launched for the deceased and initially a brief was located. Then, the dead body was found near a Kusum Tree in a naked condition at Baghiahudi jungle. The body was removed to Barbil Medical where she was declared dead. Thereafter, the matter was reported to police. Police held inquest over the dead body. After postmortem, it could be known that the deceased was raped and subsequently killed. Then, the dead body was found near a Kusum Tree in a naked condition at Baghiahudi jungle. The body was removed to Barbil Medical where she was declared dead. Thereafter, the matter was reported to police. Police held inquest over the dead body. After postmortem, it could be known that the deceased was raped and subsequently killed. He also referred to the confessional statement of Mata Munda recorded under Ext.17 as per L.C.R. In his cross-examination, he stated that Mata Muna confessed his guilt while the police personnel were present. He however admitted that he did not have any direct knowledge about the occurrence, but he deposed that P.W.10 was present when Mata Munda confessed his guilt. P.W.9 broadly corroborates the evidence of P.Ws.2,3 and 5. P.W.10 in his deposition made it clear that he did not know Harjeet Singh @ Saka @ Kana. According to him, the occurrence took place on 1.8.2012 (Rakhipurnima day). After taking tuition, the deceased had left house of the tuition teacher at 9.00 A.M. As she did not return, her tuition teacher was contacted and it could be known that the deceased had left the house of her tuition teacher at about 9.00 A.M. Thereafter, he along with others searched for the deceased. Initially, a brief was located, then, the dead body was found lying naked under a Kusum tree near at Baghiahudi. Immediately, the dead body was removed to Barbil medical where she was declared dead. Thereafter, the matter was reported to the police. Accordingly, police held inquest over the dead body and after postmortem report, it could be known that the deceased was raped and subsequently murdered. On 13.8.2012, the convicts were arrested and Mata Munda admitted his guilt and he also proved his signature marked as Ext.2/4 on the inquest report (Ext.2). In his cross-examination he has stead that when Mata Munda confessed his guilt, police personnel were present. However, he admitted that he did not have any direct knowledge about the occurrence. P.W.10 broadly corroborates P.W.9 and with regard to search, finding of brief and location of the dead body he broadly corroborates the version of P.Ws.2,3 and 5. P.W.11 conducted the postmortem examination and noted a number of external injuries in the form of bruises, abrasion and lacerated injury. P.W.10 broadly corroborates P.W.9 and with regard to search, finding of brief and location of the dead body he broadly corroborates the version of P.Ws.2,3 and 5. P.W.11 conducted the postmortem examination and noted a number of external injuries in the form of bruises, abrasion and lacerated injury. She also noted six internal injuries including rupture of hymen and presence of blood clot in the genital of the deceased. P.W.11 opined that the cause of death was due to asphyxia on account of mechanical pressure on chest and neck. Time since death was within 612 hours at the time of postmortem examination, which was conducted on 1.8.2012 at 9.00 P.M. She also stated that the genital injury strongly suggested a sexual assault and nature of death was homicidal. She also stated that on 20.8.2012, the weapon of offence, ‘Dauli’ was produced before her for seeking her opinion as to if the injuries found upon the dead body could be possibly done by that ‘Dauli’. She answered that query in the affirmative. The reply to the query was proved by her as Ext.9 as found from the L.C.R. She also stated that since she received the dead body at the initial stage, she drew up a causality memo and reported the matter to the police at 3.45 P.M. In her cross-examination, she stated that she could not say as to who produced the dead body before her as the same has not been noted in the causality memo under Ext.10 as found from the L.C.R. She also opined that it is not possible for a robust boy to commit forcible rape against a young girl by embracing her upon the land. She also stated that asphyxial death cannot be possible unless mouth and nustril are forcibly closed. P.W.12 is a witness to the inquest. In the cross-examination, he stated that he had no knowledge about the occurrence. P.W.13 has stated that 1.8.2012 was a holiday and thus his children did not attend the school. Though he used to give lift to the deceased; on that date, the deceased went to take tuition by walking. After taking tuition, she returned by walking but did not reach her house. Thereafter, P.W.2 enquired from the tuition teacher and came to know that after her tuition at about 9.00 A.M., the deceased had left her house. Though he used to give lift to the deceased; on that date, the deceased went to take tuition by walking. After taking tuition, she returned by walking but did not reach her house. Thereafter, P.W.2 enquired from the tuition teacher and came to know that after her tuition at about 9.00 A.M., the deceased had left her house. In such background, P.W.13 along with the parents of the deceased and others came for search. On the way, they met Rebati Behea, who told them that she had seen the deceased coming along the road near Baghiahudi. Thereafter, they went to Baghiahudi and first located a brief, which was identified by P.W.5. On further search, the naked dead body of the daughter of the victim was located and her neck was found tied by a herbal branch. Thereafter, they removed the victim to Barbil medical where she was declared dead. Later on, inquest was held and he learnt that the convict-Harjeet Singh @ Saka @ Kana and other accused persons have committed rape and murder of the victim. In his cross-examination, he stated that by 2.8.2012, he had knowledge that the victim was raped and murdered by the convict -Harjeet Singh @ Saka @ Kana along with others. However, he admitted that he has not stated before police that the present convict along with others raped and murdered the victim. Further, he stated that one shepherd boy of their village told him to have seen the convicts committing rape and murder. Thus, P.W.13 broadly corroborates the version of P.Ws.2,3,4,9 and 10 relating to non-return of the victim to her residence, finding of the brief and location of the dead body. P.W.14 is the constable attached to Barbil P.S. According to him on 1.8.2012, P.W.8 produced the wearing apparels of the deceased before P.W.29, who seized the same as per the seizure list at Ext.11 of L.C.R. On 3.8.2012, P.W.23 produced a cassettee of postmortem examination before the I.O. which was seized as per the seizure list, Ext.12 of L.C.R. On 13.8.2012, the I.O. seized the wearing apparels of the convicts as per five seizure lists marked as Exts.7,13,14,15 & 16 as found from L.C.R. In his cross-examination, he made it clear that seizures were effected in his presence and he denied a suggestion that nothing has been seized by the police. It may be noted here that the wearing apparels of Harjeet Singh @ Saka @ Kana was seized vide Ext.16 of L.C.R. P.W.15 is the neighbour of P.W.2. According to him, he knew the victim as well as the convict-Harjeet Singh @ Saka @ Kana, who is the co-villager. The occurrence took place on 1.8.2012. On that day, victim had been to take tuition from her tuition teacher, who resided near the forest office, Barbil. As she did not return, his family members and he himself searched for her, located her dead body with injury on her chest. Then they removed the victim to the medical, where she was declared dead. He also stated that convict-Mata Munda confessed his guilt before police in his presence and disclosed that he assaulted the victim on her chest by blunt side of ‘Dauli’ consequent upon which she was killed. Then he concealed the ‘Dauli’ under a simulia tree. His statement was recorded by the police, and, thereafter, he led the police to the place of concealment of ‘Dauli’ and gave recovery of the same. The seizure list pertatining to the seizure of ‘Dauli’ was proved by him. He also stated that the wearing apparels of convict-Mata Munda were also seized by the police. In the cross-examination, he stated that Mata Munda gave his statement which was recorded by the police under Section 27 of the Indian Evidence Act at the police station about 12-13 days after the occurrence. The seizure list in respect of ‘Dauli’ was prepared at the spot of recovery. He denied a suggestion that nothing has been seized in his presence and he is deposing falsehood. He admitted that the victim was his niece by village courtesy. P.W.16 appears to be the eye-witness with regard to commission of offence of rape. In his deposition, he stated that he knew the victim and the convict-Harjeet Singh @ Saka @ Kana was present in the dock. On the date of occurrence, i.e., Rakhipurnima day of 2012 at about 10.00 A.M., he saw the convict-Mata Munda bringing victim to Baghiahudi jungle where he and convict-Jiten Munda committed rape. When he saw the act of rape, convict-Mata Munda threatened to kill him, if he disclosed the fact to anybody. On the date of occurrence, i.e., Rakhipurnima day of 2012 at about 10.00 A.M., he saw the convict-Mata Munda bringing victim to Baghiahudi jungle where he and convict-Jiten Munda committed rape. When he saw the act of rape, convict-Mata Munda threatened to kill him, if he disclosed the fact to anybody. Out of fear, he left the place of occurrence and went to his house and reported the matter to his brother-Jamda Khadayat, who informed the incident to P.W.2. Since he was grazing cattle in Baghiahudi jungle, he had the chance to witness the occurrence. He had not seen the other convicts since they were concealing their presence in the nearby area. He also stated that he reported the matter to Joker Khandayat who is one of his brothers. In his cross-examination, he has stated that he was alone present in Baghiahudi jungle and grazing cattle. He denied a suggestion that he had not stated to the police that Mata Munda threatened to kill him if he disclosed the fact to anybody and that convicts-Mata Munda and Jiten Munda raped the victim. He also denied a suggestion that he knew nothing about the occurrence and deposing falsehood at the instance of P.W.2 since he happens to be a co-villager. After two days of occurrence, he learnt about the death of the victim from the police. An analysis of evidence of P.W.16 would show that he is an eye-witness to the commission of rape by Mata Munda and Jiten Munda. His version relating to commission of such offence by Mata Munda and Jiten Munda remains uncontroverted in the cross-examination. However, with regard to the presence of Harjeet Singh @ Saka @ Kana, the same cannot be deduced from the evidence of P.W.16. Though he (P.W.16) deposed that he knew Harjeet Singh @ Saka @ Kana, however, he has implicated only Mata Munda and Jiten Munda and not Harjeet Singh @ Saka @ Kana. Though in his examination-in-chief, he has stated that “I had not seen the other accused persons since they were concealing their presence in nearby area”, however, this is clearly a contradictory statement as once he has not seen the other accused persons, how could he deduce that they have concealed themselves in a nearby area. In other words, it means that despite knowing the convict, he has not implicated Harjeet Singh @ Saka @ Kana. In other words, it means that despite knowing the convict, he has not implicated Harjeet Singh @ Saka @ Kana. It is important to note here that he has nowhere deposed of having seen the convict in the area along with Mata Munda and Jiten Munda prior to/at the time of occurrence of rape. P.W.17 deposed that he knew the victim as well as the convict-Harjeet Singh @ Saka @ Kana present in the dock. According to him on the date of occurrence, i.e., 1.8.2012, the victim had been to tuition at Barbil. As she did not return, P.W.1 and others searched for her and her naked body was located inside the Baghiahudi jungle. The symptom showed that she was raped and murdered. Thereafter her body was taken to Barbil Medical Hospital, where she was declared dead. He has further stated that in his presence convict-Jiten Munda admitted his guilt and led the police party to the place of occurrence and gave recovery of school bag, a ball pen, some books and khatas which he had concealed inside the bush. His statement has been marked as Ext.18 as found from the L.C.R. and Ext.6/1 is the relevant seizure list. In his cross-examination, he has stated that he saw Jiten Munda and Mata Munda in police lock up. The statement of Jiten Munda was recorded in the police station and he gave recovery of school bag, ball pen, books and khatas on 13.8.2012. He denied a suggestion that Jiten Munda has never given a statement before police under Section 27 of the Indian Evidence Act. P.W.18 is the constable, who produced the wearing apparels of the victim which he had received from the medical after postmortem examination and the same was seized by the I.O. as per the seizure list (Ext.11). In his cross-examination, he has stated that the wearing apparels belonged to the victim. P.W.19 is the constable, who also says that P.W.29 seized the wearing apparels of the deceased on 22.8.2012 on production of the same by P.W.18. In the cross-examination he has stated that the seizure was made at the police station. P.W.20 claims to be an eye-witness of lifting of the victim by the convicts Mata Munda and Jiten Munda and others. According to him, he knows the informant, the victim and the convict -Harjeet Singh @ Saka @ Kana present in the dock. In the cross-examination he has stated that the seizure was made at the police station. P.W.20 claims to be an eye-witness of lifting of the victim by the convicts Mata Munda and Jiten Munda and others. According to him, he knows the informant, the victim and the convict -Harjeet Singh @ Saka @ Kana present in the dock. The occurrence took place on 1.8.2012 on a Rakhipurnima day. On the date of occurrence at about 9.30 A.M. while he was moving on the roof of his house he saw Mata Munda, Jiten Munda and two other boys standing near a Kusum tree near the public road. At that time, he also saw a girl, aged about 13 years coming from Barbil going towards village-Belakundi. Finding the girl alone the convicts Mata Munda and Jiten Munda and two other boys lifted her to nearby Baghiahudi jungle. After about 15-20 minutes, three other persons came and went inside Baghiahudi jungle. Further about 45 minutes after, all the seven persons came out from jungle, all of them were in a hurry, three persons went towards Barbil and four persons went towards village-Belakundi. At about evening hour, he got a telephone call from one of his friends who enquired about the incident of rape and murder that occurred in the morning. Thereafter, P.W.20 went to Barbil medical and found a gathering where he learnt that the victim, who is the daughter of P.W.2 has been raped and murdered. Finding A.S.I.-Rama Chandra Naik, he narrated the incident first to him and came back. On 13.8.2012, P.W.20 was examined by the police. It may be noted here that A.S.I.-Rama Chandra Naik was never examined by the prosecution. In his cross-examination, he admitted that he never disclosed about the incident either to P.W.2 or other persons present at the hospital. The public road besides which the convicts Mata Munda and Jiten Munda and others were standing runs about 300 meters from his house and the Kusum tree stands just besides the road. The road runs from north to south. He further admitted that the road is not a busy road but public used to pass along that road. The public road besides which the convicts Mata Munda and Jiten Munda and others were standing runs about 300 meters from his house and the Kusum tree stands just besides the road. The road runs from north to south. He further admitted that the road is not a busy road but public used to pass along that road. He denied a suggestion that Baghiahudi jungle is located at about 1 K.M. away from the public road and that he has not stated to the police that to the query of Ganesh Apat over telephone, he narrated the incident to him. An analysis of his evidence would show the strange conduct/behaviour exhibited by P.W.20. Though he claims to know the victim and informant and though he claims to have seen her being lifted by convicts Mata Munda, Jiten Munda and two others to nearby Baghiahudi jungle, strangely he did not raise any hullah and nor did he inform others/police immediately. This clearly goes against natural human conduct and throws a cloud on his version of he having seen the lifting of the deceased. In view of such peculiar behaviour of P.W.20, his version about lifting of the victim by convicts Jiten Munda and Mata Munda does not inspire confidence. Though the occurrence of lifting took place at 9.30 A.M. he only disclosed about the same in the evening to one Ganesh Apat, who has not been examined in this case. There also exists no evidence to the effect that P.W.20 like P.W.16 was threatened with dire consequences for which there was delay in his disclosing the matter to others. In his cross-examination, he has also admitted that he has never disclosed the incident to either P.W.2 or other persons present at the medical. This is again a peculiar behaviour coming from a person who is working as an agent in an Insurance Company as indicated in his deposition. In any case, except saying that seven persons were involved, he did not state the name of Harjeet Singh @ Saka @ Kana though he claimed to know the convict present in the dock. Such a fact clearly goes in favour of the above noted convict. P.W.21 in his deposition has stated that he knows the convict. In any case, except saying that seven persons were involved, he did not state the name of Harjeet Singh @ Saka @ Kana though he claimed to know the convict present in the dock. Such a fact clearly goes in favour of the above noted convict. P.W.21 in his deposition has stated that he knows the convict. On the date of occurrence, at about evening his younger brother, namely, Tusa Munda came to him and told that while deceased Bindiya Mahakuda was returning from tuition, convict-Mata Munda accompanied by other convicts, lifted her to Baghuahudi jungle under a Kusum tree. Sensing that he might divulge the incident, he threatened him to kill him if he reported the matter to anybody. In cross-examination, he has stated that he has neither seen the incident nor gone to the spot. He came to know about the incident from his brother-Tusa Munda. P.W.22 like P.W.21 has stated that he knew the convict. According to him, the occurrence took place on Rakhipurnima day and it was the first day of the month. On the date of occurrence, the victim did not return from tuition, where after, he accompanied by others searched for her and found her naked body near a Kusum tree inside Baghiahudi jungle. Thereafter, she was removed to the hospital where she was declared dead. He also deposed about convict-Jiten Munda giving recovery of black colour school bag. However, in his examination-in-chief he has stated that after giving recovery of school bag, convict-Jiten Munda stated before the police that at the time of occurrence, he was accompanied by convict-Mata, Kanu, Nauru and his statement was recorded in his presence. In his cross-examination, he has stated that by the time he arrived at Baghiahudi jungle, he found the police, Jiten Munda and many of the co-villagers of village Belakundi and he cannot say about the topic of discussion held between them. In his presence, Jiten Munda gave recovery of the school bag after bringing the same from under the bush. According to him, it is a fact that people used to take cattle folk for grazing in Baghiahudi jungle. An analysis of his evidence shows that as he corroborates P.Ws.2,3,5 & 9 with regard to search and locating dead body. In his presence, Jiten Munda gave recovery of the school bag after bringing the same from under the bush. According to him, it is a fact that people used to take cattle folk for grazing in Baghiahudi jungle. An analysis of his evidence shows that as he corroborates P.Ws.2,3,5 & 9 with regard to search and locating dead body. However, with regard to giving recovery of the school bag, he has stated that after giving recovery convict Jiten Munda stated before the police about occurrence. So with regard to recovery of School Bag, his version is of no use. P.W.23 is the Havildar, who on 13.8.2012 produced the nail clipping, nail scrapings, pubic hair and sample semen kept in sealed vial and the same was seized by P.W.29. In the cross-examination, he has admitted that though he produced the above articles before the I.O., inadvertently his signature was not obtained by the I.O. in the seizure list. P.W.24 says that he knows the informant and the convicts in the dock. The deceased was the daughter of P.W.2 and the occurrence occurred on 1.8.2012 at about 9.30 A.M. at Baghiahudi jungle. Just prior to the occurrence the deceaed was coming from Barbil towards her house from tuition. Near Baghiahudi jungle, convict-Mata Munda lifted her inside the jungle and raped her and the other accused persons also joined him and raped her. A shepherd boy, who has seen the occurrence, narrated the incident to him. In his cross-examination, he admitted that he has not seen the occurrence and when police came to the spot, he called the shepherd boy to the spot and on enquiry, he narrated the incident to the police. Since he was present near the police, he has heard the same. Thus, P.W.24 is a heresay witness and much importance cannot be given to his version. P.W.25 is a videographer, who took videography of postmortem examination. In his deposition, he has stated that he does not know the victim but has seen her dead body. He videographed the post-mortem examination and on 13.8.2012, three accused persons confessed their guilt which was also videographed on police requisition. In his cross-examination, he stated that after doing videography, he submitted the entire film to the I.O. and he does not know about the convicts. He videographed the post-mortem examination and on 13.8.2012, three accused persons confessed their guilt which was also videographed on police requisition. In his cross-examination, he stated that after doing videography, he submitted the entire film to the I.O. and he does not know about the convicts. It is important to note here that these DVDs were never produced before the learned trial court though the seizure lists pertaining to those were exhibited. P.W.26 is the Havildar who had taken convict-Jiten Munda to Barbil medical for his medical examination. P.W.27 is the A.S.I., who stated that on 2.8.2012, P.W.29 seized the wearing apparels and other articles of the victim after her postmortem examination and this has been duly reflected in the seizure list under Ext.22, as found from LCR. The above seized articles were produced by P.W.18. P.W. 28 is the second I.O., who took over the investigation on 25.9.2012 from P.W.29. In his statement he stated that he examined P.W.2 and other witnesses, re-visited the spot, sent wearing apparels of the deceased and convicts and the biological sample of the deceased and convicts along with one ‘Dauli’, the weapon of offence to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination. On 5.12.2012, he filed charge sheet against Mata Munda, Jiten Munda, Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri showing three others including Harjeet Singh @ Saka @ Kana as absconders. He also stated that he arrested Harjeet Singh @ Saka @ Kana on 18.6.2013 and sent him for medical examination. He also seized the wearing apparels of the above convict and collected his biological sample. In his cross-examination, he has stated that even if he re-examined the witnesses, still then, he did not record their statements separately as they did not add more to the earlier statements. He denied a suggestion that without any evidence against the convicts he charge sheeted them at the instance of the informant. P.W. 29 is the main I.O., who conducted investigation in this case. As per his deposition, he was working as S.I. of police at Barbil Police Station on 1.8.2012. On that date, P.W.2 presented a written report before him. Accordingly, he registered Barbil P.S. Case No.128 of 2012 and took up investigation. He further stated that the written report was treated as F.I.R. under Ext.1. As per his deposition, he was working as S.I. of police at Barbil Police Station on 1.8.2012. On that date, P.W.2 presented a written report before him. Accordingly, he registered Barbil P.S. Case No.128 of 2012 and took up investigation. He further stated that the written report was treated as F.I.R. under Ext.1. After registration of the case, he drew up a formal F.I.R. which has been marked as Ext.1/3. During course of investigation, he examined P.W.2 at the Police Station. Later, he held inquest over the dead body and prepared the inquest report under Ext.2. He dispatched the dead body to the medical officer requesting to conduct postmortem examination with a request to record the postmortem report by way of videography. Thereafter, video casettee was seized from the videographer. Next date, he visited the spot with scientific team and prepared spot map. As per the request of medical officer, Barbil, he sent biological materials of the deceased to District Headquarters Hospital, Keonjhar and also seized the wearing apparels of the deceased under seizure list. On 12.8.2012, he rescued convict-Mata Munda. On 13.8.2012, upon examination, he disclosed about the involvement of other convicts. Then, he formally arrested convict-Mata Munda. While in police custody, Mata Munda stated that he along with others killed the deceased after raping her and kept concealed the ‘Dauli’ with which he killed Bindiya Mahakuda inside the jungle. This statement has been marked as Ext. 17 as found from L.C.R. Thereafter, Mata Munda led him, witnesses and others to the spot and gave recovery of that ‘Dauli’, which was seized by him vide seizure list under Ext.6/1. Then, he seized the wearing apparels of Mata Munda, examined the seizure witnesses and sent Mata Munda to the medical seeking opinion of the doctor as to whether he has committed the offence of rape or not. On 13.8.2012, he also got information that convict-Jiten Munda has concealed himself at Baghiahudi jungle. Accordingly, he arrested Jiten Munda on 13.8.2012 at 10.30 P.M. Then, he recorded his statement and videographed the same. In his statement, he provided information that he has kept concealed the school bag of the victim inside Baghiahudi jungle. Then, he recorded his statement under Section 27 of the Indian Evidence Act in presence of witnesses which has been marked as Ext.18. In his statement, he provided information that he has kept concealed the school bag of the victim inside Baghiahudi jungle. Then, he recorded his statement under Section 27 of the Indian Evidence Act in presence of witnesses which has been marked as Ext.18. Thereafter, Jiten Munda led him and the police party and others to the spot of concealment and gave recovery of school bag of deceased which was seized from the sopt under the seizure list, Ext.19 as per L.C.R. Then, he sent Jiten Munda for his medical examination. On 13.8.2012, he arrested Biswanath Gope @ Naru and seized his wearing apparels and sent him for medical examination and also recorded the confessional statement of Biswanath Gope @ Naru and videographed it and seized C.D. The relevant seizure list has been exhibited. On 13.8.2012, he forwarded Mata Munda, Jiten Munda, Biswanath Gope @ Naru to the court. On 20.8.2012, he produced postmortem examination report along with seized ‘Dauli’ before the medical officer and sought for her opinion as to whether the deceased could have been killed by that ‘Dauli’ and she answered in the affirmative. On 23.8.2012, he sent the seized articles to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination through court. On 6.9.2012, he arrested convict-Tapu @ Mangal Purty @ Suri from his house and seized his wearing apparels and sent him for medical examination. Later on, P.W.28 took charge of investigation. In his cross-examination, he denied the suggestion that he has not investigated the case properly. It is important to note that the ‘Dauli’, ‘School Bag’, etc. were never produced before the learned trial court during trial. 10. In the background of discussion made above, now let us examine various contentions raised by the learned Amici Curiae and Mr. J. Katikia, learned Addl. Government Advocate. 11. With regard to contention of learned Amici Curiae, Mr. Panda and Mr. Dhal, pertaining to evidence of P.W.20, we agree with their contentions that in the background of peculiar conduct exhibited by P.W.20, his evidence does not inspire confidence. Despite claiming to know the victim and her father, he neither raised a hullah nor immediately informed the police while he saw lifting of the victim. He remained a mute spectator though he knew the victim. He also did not disclose such fact to either P.W.2 or others at Medical. Despite claiming to know the victim and her father, he neither raised a hullah nor immediately informed the police while he saw lifting of the victim. He remained a mute spectator though he knew the victim. He also did not disclose such fact to either P.W.2 or others at Medical. Such peculiar conduct raises a serious doubt about his version of he having seen the lifting of victim. According to us, the learned Additional Sessions Judge, should not have relied upon such a witness, who appears to be a got up witness. 12. With regard to delayed examination of P.W.16 by the police on 8.8.2012, in the facts and circumstances, we do not think any thing turns on that as P.W.16 in his evidence has in no way implicated Harjeet Singh @ Saka @ Kana. In fact, there exists no evidence worth the name with regard to convict-Harjeet Singh @ Saka @ Kana. P.W.16 while deposing about the presence of convicts-Mata Munda and Jiten Munda has not uttered the name of this convict despite claiming to know him. Even though we have rejected the version of P.W.20, still then he despite knowing the convict has also not implicated him. With regard to argument relating to non-existence of pre-planning, we have no hesitation to say that there exists no evidence on the same vis-à-vis the present convict. With regard to non-examination of Rebati Behera, according to us, nothing much turns on that because said Rebati Behera about whom P.Ws.3,4,5 and 13 have deposed, has not said anywhere that she had seen any occurrence either of rape or murder implicating the convict. As per P.Ws.3,4,5 and 13, their only version was Rebati Behera told them that she had seen the victim walking along side the Baghiahudi jungle. The submission of learned Amici Curiae relating to P.W.11 not stating about commission of gang rape is of not much importance so far as present convict is concerned in absence of proof of common intention/premediation involving the convict and when the eye witness has not implicated the convict -Harjeet Singh @ Saka @ Kana. 13. With regard to submission of learned Amici Curiae that trial court has traveled beyond the frontiers of law by putting reliance on entire statements made by convicts-Mata Munda & Jiten Munda under Section 27 of the Evidence Act, 1872 involving the convict, we accept the same. 13. With regard to submission of learned Amici Curiae that trial court has traveled beyond the frontiers of law by putting reliance on entire statements made by convicts-Mata Munda & Jiten Munda under Section 27 of the Evidence Act, 1872 involving the convict, we accept the same. In this connection, we would like to quote the following passage from case of Pulukuri Kottaya and others (supra) : “Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” Further in Anter Sing v. Stare of Rajasthan reported in (2004) 10 SCC 657 , the Supreme Court has summed up various requirements of Section 27 as follows: “(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” Keeping in mind the above, it is clear that under Section 27 of the Indian Evidence Act, a court can rely upon that much of information which has led to discovery of ‘Dauli’ and ‘School Bag’, etc. and not all the confessional statements made before the police under Exts. 20 and 21. Thus, vis-à-vis Mata Munda the admissible information is “DAULI KU MU NEI xxx xxx xxx EKA SIMILI GACHHA TALE THIBA LATI BHITARE LUCHEI DEI MORA GHARAKU PALEI ASILI xxx xxx xxx APANAMANE MO SAHITA GALE, MU UKTA JAGAKU NEIJIBI O LUCHEI RAKHITHIBA DAULIKU BAHARA KARIDEBI” (Translated by this Court-I took the “Dauli” and hid the same inside a bush under a simili tree and came back to my house xxx xxx xxx If you accompany me, I will take you to that place and bring out the hidden “Dauli”). Similarly, with regard to convict-Jiten Munda, only the following statement is admissible. “xxx MU BINDIYAR KALA RANGARA SCHOOL BAG KU xxx xxx xxx EKA LATI BHITARE LUCHAI DELI XXX APANAMANE MO SAHITA GALE UKTA JAGAKU NEI JIBI O LUCHEI THIBA SCHOOL BAG KU BAHARA KARIDEBI XXX”-(Translated by this Court-I hid the school bag of Bindiya inside a bush xxx. If you accompany me, I will take you to that place and will bring out the hidden school bag).” Except the above quoted informations, nothing more from the statements involving the present convict should have been relied upon by the learned trial court while making its own analysis. If you accompany me, I will take you to that place and will bring out the hidden school bag).” Except the above quoted informations, nothing more from the statements involving the present convict should have been relied upon by the learned trial court while making its own analysis. It appears the learned trial court has failed to take into consideration the well settled principle vis-à-vis Section 27 of the Evidence Act, 1872. Moreover, the ‘Dauli’ and ‘School Bag’ were not produced before the learned trial court. Thus, these discoveries were never proved. Had these been produced, these could have been confronted to the seizure witnesses and the school bag could have been identified to be the bag of the deceased by his relatives like P.Ws.1,2, 3 and 4. In such background, leading to discovery has lost all its meaning in the present case. 14. To sum up, P.W.16-an eye-witness, despite claiming to know the convict-Harjeet Singh @ Saka @ Kana has not implicated him. Though we have not accepted the evidence of P.W.20, even then he has also not implicated him despite claiming to know him. There exists no evidence relating to prior concert involving the convict and others. Lastly, as pointed out earlier the entire statements made by Mata Munda and Jiten Munda involving the convict are not admissible in evidence except to the extent indicated above. Thus, the evidence either oral or circumstantial is highly deficient to rope in Harjeet Singh @ Saka @ Kana and he cannot be held guilty either under Section 376(2)(g), I.P.C. or under Section 302/34, I.P.C. Consequently, he also cannot be held guilty for having committed the offences under Section 201/34, I.P.C. Thus, we set aside the senences under Sections 376(2)(g)/302/34, I.P.C. and acquit Harjeet Singh @ Saka @ Kana of all criminal charges. Accordingly, we direct that he should be set at liberty forthwith if he is not wanted in connection with any other case. Accordingly, the reference made by the learned trial court is discharged and JCRLA filed by the appellant is allowed. Before concluding, we would be failing in our duty if we do not record our appreciation about the able assistance rendered to this Court by learned Amici Curiae, namely, Mr. Debasis Panda and Mr. D.P. Dhal. In fact their assistance has been of great help in disposing of the present DSREF and JCRLA. Before concluding, we would be failing in our duty if we do not record our appreciation about the able assistance rendered to this Court by learned Amici Curiae, namely, Mr. Debasis Panda and Mr. D.P. Dhal. In fact their assistance has been of great help in disposing of the present DSREF and JCRLA. The DSREF and JCRLA are accordingly disposed of.