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2019 DIGILAW 767 (JHR)

State of Jharkhand v. Mathura Yadav

2019-03-29

H.C.MISHRA, RATNAKER BHENGRA

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JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsel for the appellants, including the convict Mathura Yadav, facing the death sentence, and learned counsel for the State, in the death reference, as also the appeal filed by the appellants. 2. This death reference and the connected Criminal Appeal arise out of the impugned Judgment of conviction dated 08th April, 2016 and Order of sentence dated 12th April, 2016, passed by the learned Additional Sessions Judge-V, Giridih, in S.T Case No.273 of 2011, whereby, the accused, Mathura Yadav has been found guilty and convicted for the offences under Sections 302, 376 and 201 of the Indian Penal Code, whereas, the accused Bhikhari Mahto has been found guilty for the offence under Section 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant Mathura Yadav has been sentenced to the capital punishment of death, for the offence under Section 302 of the Indian Penal Code, directing him to be hanged by neck till he is dead. He is also sentenced to undergo R.I. for life for the offence under Section 376 of the Indian Penal Code, and R.I. for two years for the offence under Section 201 of the Indian Penal Code, whereas the appellant Bhikhari Mahto has been sentenced to undergo R.I. for two years with fine of Rs.5,000/-for the offence under Section 201 of the Indian Penal Code. As the accused Mathura Yadav is sentenced to death, the reference has been made to this Court, for confirmation of the death sentence. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Ramdeo Saw, the grandfather of the victim female child, aged about 7 years, recorded at the place of occurrence near village Badidih, P.S. Ganwan, District Giridih, on 07.05.2011 at about 12:30 P.M., in the day, wherein, he has stated that on the previous day, i.e., on 06.05.2011, he had gone for grazing his goat at about 7:00 A.M, where at about 10:45 A.M., his granddaughter, aged about 7 years, came and asked him to pluck mango for her. The accused Mathura Yadav, aged about 35 years, who is his co-villager, was taking toddy nearby, and he assured his granddaughter to pluck mango for her, and he took her with him by holding her hand. The informant also returned back to his house, asking his granddaughter to return back early. The accused Mathura Yadav, aged about 35 years, who is his co-villager, was taking toddy nearby, and he assured his granddaughter to pluck mango for her, and he took her with him by holding her hand. The informant also returned back to his house, asking his granddaughter to return back early. When his granddaughter did not return back for a considerable time, he informed his son and daughter-in-law, other family members and neighbours that Mathura Yadav had taken her away for plucking mango, but she had not yet returned, whereupon the search for his granddaughter started. All of them searched Mathura Yadav also, but he was also nowhere to be found. They were searched until about 11:30 P.M., in the night, but both of them could not be found. In the morning again, the search was started and they found the dead body of his granddaughter between the putus bushes, situated in the back side of the boring house of the accused Mathura Yadav. There was deep cut injury in the neck of the deceased girl, and there was bleeding below her waist. The police was informed, which came there and the boring house of the accused was also searched, where there was a bed on the straws which was bloodstained. A bloodstained cloth was also found there. The informant has stated that Mathura Yadav and his father Bhikhari Matho were seen in the boring house in the morning, and they had removed the dead body from the boring house and concealed it in the bushes behind the boring house. Claiming that the accused Mathura Yadav had taken his granddaughter on the pretext of plucking mango for her, and had committed rape upon her, murdered her, and with the help of his father Bhikhari Mahto, had concealed the dead body in the bushes behind his boring house, the fardbeyan was given by the informant, on the basis of which, Ganwan P.S. Case No. 28 of 2011 corresponding to G.R No. 786 of 2011, was instituted for the offences under Sections 302, 376 and 201 of the Indian Penal Code, against both the accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused Mathura Yadav @ Mathura Mahto for the offences under Sections 376 and 302 of the Indian Penal Code, whereas the charge was framed against both the appellants, namely, Mathura Yadav @ Mathura Mahto and Bhikhari Mahto, for the offence under Sections 201 / 34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined 14 witnesses in the case. 5. P.W.-8 Ramdeo Saw is the informant of the case and the grandfather of the deceased. This witness has stated that the occurrence had taken place less than two years ago. He had gone to graze his cattle at about 7:00 A.M., in the morning, and at about 10:45 A.M., his granddaughter came there, asking him to pluck mango for her. She was aged about seven years. Mathura Yadav was sitting nearby and asked her to come with him, assuring that he would pluck the mango for her, and he took her away along with him by holding her hand. This witness returned back to his house. When the father of the girl asked him about her, he told him that she was with Mathura Yadav for taking mango. Thereafter, she was searched and both of them were not found. On the next day again they were searched along with the villagers, and the dead body of his granddaughter was found in the putus bushes near the boring of the accused Mathura Yadav. There was cut injury in her neck and she was bleeding from other parts of the body also. There was mobil oil also on her body. This witness has stated that upon seeing them, Bhikhari Mahto and Mathura Yadav, were fleeing away after throwing her dead body. Bhikhari Mahto was apprehended there, but Mathura Yadav managed to flee away. The police reached there and inspected the place of occurrence, and upon search in the boring house, blood was found on the bed. It was apparent that the deceased girl was murdered after committing rape upon her, and the dead body was attempted to be concealed with the help of Bhikhari Mahto. The police reached there and inspected the place of occurrence, and upon search in the boring house, blood was found on the bed. It was apparent that the deceased girl was murdered after committing rape upon her, and the dead body was attempted to be concealed with the help of Bhikhari Mahto. He gave the fardbeyan before the police, which was read over to him, and finding the same to be true, he had put his signature on the fardbeyan, which on his identification was marked Exhibit-3. This witness had identified both the accused persons in the Court. He was put to extensive cross-examination wherein he has admitted that Bhikari Mahto had lodged a case against him, in which, he had been acquitted. He has stated that there was no proceeding under Section 107 of the Cr.P.C., between them in which he was the first party. He has admitted that he had not seen the accused committing the rape and murder of the deceased, but he has stated that the accused Mathura Yadav had taken away his granddaughter, which he had seen. His attention was drawn towards his statement before the police, and he has admitted to have given the statement before the police that Mathura Yadav and Bhikari Mahto were fleeing away when the dead body was found, and Bhikhari Mahto was apprehended, but Mathura Yadav managed to flee away. He has stated that there is no habitat near the boring house and he has denied the suggestion to have falsely implicated the accused. 6. P.W.-5 Munna Mandal is the father of the deceased and P.W.-14 Rukmani Devi is the mother of the deceased. Both these witnesses have also supported the prosecution case in more or less the same manner, as stated by the informant P.W.-8 Ramdeo Saw. They have stated that the occurrence took place on 06.05.2011, on which date they were informed by their father that the accused Mathura Yadav had taken their daughter on the pretext of plucking mango for her. They have also stated that thereafter, they were searching their daughter along with villagers, but she could not be found on that day. The dead body was found on 07.05.2011 in the morning, behind the boring house of the accused between the bushes. Her neck was cut and there was bleeding below her waist. They have also stated that thereafter, they were searching their daughter along with villagers, but she could not be found on that day. The dead body was found on 07.05.2011 in the morning, behind the boring house of the accused between the bushes. Her neck was cut and there was bleeding below her waist. They have stated that the police had arrived there and had searched inside the boring house of the accused Mathura Yadav, where the bloodstained bed was found. There was a stick also which was bloodstained. P.W.-5 Munna Mandal has also stated that the bloodstained cloth and kulhari were also seized by the police. He has also stated that he had seen the accused, Mathura Yadav and Bhikari Mahto, fleeing away from the boring house. Both these witnesses have stated that upon seeing the dead body, it was apparent that she was murdered after committing rape upon her, and thereafter the dead body was concealed in the bushes. Both these witnesses have identified the accused persons in the Court. In his cross-examination, P.W.-5 Munna Mandal has admitted that he had given the statement before the police that the bloodstained khulari was seized from the boring house and both the accused persons were fleeing away. He has denied the suggestion of any enmity from before, and he has stated that he had no knowledge about the case, lodged by Bhikhari Mahto against his father, or of any proceeding under Section 107 of the Cr.P.C. P.W.-14 Rukmani Devi has also denied any knowledge about the same. 7. P.W.-1 Sudhir Saw, P.W.-2 Pramod Mandal, P.W.-3 Krishna Saw, P.W.-9 Yadunandan Prasad Verma and P.W.-11 Srawan Mandal are the witnesses, who have claimed that they were also searching the deceased along with the family members of the deceased. They have stated that they were informed that the deceased girl was taken away by Mathura Yadav on the pretext of plucking mango for her. The deceased could not be found until night and on the next day, i.e, on 07.05.2011, the dead body was found behind the boring house of Bhikhari Mahto in the putus bushes. All these witnesses have stated about the injury in the neck of the deceased and the bleeding below her waist. These witnesses have also stated that the police arrived and searched the boring house, from where, the bloodstained articles were recovered and seized by the police. All these witnesses have stated about the injury in the neck of the deceased and the bleeding below her waist. These witnesses have also stated that the police arrived and searched the boring house, from where, the bloodstained articles were recovered and seized by the police. P.W.-1 Sudhir Saw, P.W.-2 Pramod Mandal and P.W.-11 Srawan Mandal have also stated that they had seen both the accused persons near the boring house. P.W.-9 Yadunandan Prasad Verma has also stated that the accused, Mathura Yadav was apprehended by the police from his house, and his underwear was seized by the police. He is the witness to the seizure list of the underwear, on which he has proved his signature, which was marked as Exhibit-4. P.W.-11 Srawan Mandal is also a witness to the seizure of the bloodstained tangi. He has stated that the seizure list was prepared in his presence, as also in presence of the accused Mathura Yadav by the I.O, Arvind Kumar Manjhi, on which, he had put his signature, and the accused Mathura Yadav had put his thumb impression. He has proved the seizure list, which was marked as Exhibit-6. This witness has also stated that the accused Mathura Yadav had confessed his guilt and the seizure of the tangi was made on the basis of his confessional statement. All these witnesses have stated that from the dead body, it was apparent that the accused had committed rape upon the victim and thereafter, committed her murder and thereafter, the dead body was thrown in the bushes. All these witnesses have identified both the accused persons in the Court. There is nothing of much importance in the cross-examinations of these witness. 8. P.W.-10 Randhir Choudhary is also a hearsay witness and he had also seen the dead body of the deceased with cut injury in the neck and the bleeding below the waist. He was informed about the occurrence by the informant, which he has detailed in the same manner. He is a witness to the inquest report of the dead body and has stated that the dead body was sent for post-mortem examination. He has stated that the inquest report was prepared by the I.O, Arwind Kumar Manjhi, and he has identified his signature on the inquest report, which is marked Exhibit-4/a. He has also identified both the accused persons in the Court. He has stated that the inquest report was prepared by the I.O, Arwind Kumar Manjhi, and he has identified his signature on the inquest report, which is marked Exhibit-4/a. He has also identified both the accused persons in the Court. There is nothing of much importance in the cross-examination of this witness as well. 9. P.W.-6 is Dr. Shashi Bhushan Choudhary, who had conducted the post-mortem examination on the dead body of the deceased female child aged about seven years, on 08.05.2011, under the observation of Dr. A.P.N. Deo, and had found the following ante-mortem injuries on the dead body : Both eyes closed, mouth open, tongue in between teeth, whole body swollen with process of decomposition. Blisters present, peeling of skin present, maggots present over face and neck. Private parts - redness of vulva present. Hymen ruptured. External injury were found on the dead body of the deceased such as- (i) Lacerated wound over front of neck 4" x 1/2" x cutting the oesophagus, trachea and major vessels. (ii) Lacerated wound over right elbow 1" x 1/2" x skin deep. (iii) Lacerated wound over left arm measuring 1/2" x 1/2" x skin deep. (iv) Lacerated wound over pubic region 1" x 1/2" x skin deep. On dissection ribs were found intact. Heart empty. Lungs pale. Lever, Spleen & Kidney -in the process of decomposition. Stomach empty. No peculiar smell present. Skull intact, brain matter pulpy. This witness has stated that the time elapsed since death was 36 to 72 hours and the cause of injury was shock and haemorrhage, caused by Injury No.(i), which was ante-mortem in nature, after committing rape upon her. He had preserved the vaginal swab for clinical analysis. He has proved the post-mortem report to be in his pen and signature, and also containing the signature of Dr. A.P.N. Deo, and the same was marked Exhibit-2. In his cross-examination, this witness has stated that the decomposition was in process and whole degree of decomposition was found on the dead body. He has stated that the report of vaginal swab was not produced before him. He has also admitted that he has not mentioned the nature of weapon used for inflicting the injury. 10. In his cross-examination, this witness has stated that the decomposition was in process and whole degree of decomposition was found on the dead body. He has stated that the report of vaginal swab was not produced before him. He has also admitted that he has not mentioned the nature of weapon used for inflicting the injury. 10. P.W.-4 is Kaushik Mishra, the Judicial Magistrate, who, under the orders of the Chief Judicial Magistrate, Giridih, had got the blood sample of the accused Mathura Yadav collected for DNA test, which was collected by the compounder, deputed by Civil Surgeon-cum-Chief Medical Officer, Giridih, under the supervision of the Jail Medical Officer. He had also taken the steps for sending the collected sample for DNA examination. 11. P.W.-7 Dr. R.P. Das is the Medical Officer, posted in the Jail, who had collected the blood sample of the accused Mathura Yadav for DNA test, and had handed over the same to the Magistrate for the purpose. P.W.-12 is Dr. Vishnu Kumar Singh, who had collected the blood samples of both the parents of the deceased for DNA test. 12. P.W.-13 is Arvind Kumar Manjhi, the I.O of the case. This witness has stated that on 07.05.2011, he was posted as Officer-Incharge of Ganwan Police Station. On that day, he received an information by way of rumour that the dead body of a female child was recovered near village Badidih, whereupon, he went there for verification of the information along with the police party, where he found the dead body of a girl child thrown between the putus bushes. He recorded the fardbeyan of Ramdeo Saw, the grandfather of the deceased, which he has proved and the same was marked Exhibit-7. He also prepared the inquest report of the dead body which he has proved and the same was marked Exhibit-8. He seized the bloodstained underwear of the victim girl, and prepared the seizure list, which he has proved and the same was marked Exhibit-9. He sent the dead body for post-mortem examination. He inspected the place of occurrence, from where, he seized the bloodstained soil, one bloodstained stick, as also one blood stained black cloth, and had prepared the seizure list, which he has proved, and was marked Exhibit-10. He has given the details of the place of occurrence, which is the boring house of the accused Mathura Yadav, containing electrical motor etc. He has given the details of the place of occurrence, which is the boring house of the accused Mathura Yadav, containing electrical motor etc. There was a bed made of bamboo pieces, some portion of which was smeared by mud over the bloodstains. He found one bloodstained stick on the bed, and also found a black cloth. He has stated that the accused, Mathura Yadav confessed his guilt of committing the rape in the same boring house, and at a distance of about 200 feet in the putus bushes, he found the dead body of the girl, in the pool of blood, with cut injury in her neck. He has stated that the place of occurrence is a lonely place. He recorded the re-statement of the informant and he also recorded the statements of the witnesses. He arrested the accused, Mathura Yadav from his house, who confessed his guilt and his confession was recorded, which was marked Exhibit-11. He has also stated that he inspected the body of the accused Mathura Yadav and he seized his underwear which he was wearing, which was having semen and bloodstains. He proved the seizure list, which was marked Exhibit-12. He also seized the bloodstained tangi from the boring house, on the basis of the confessional statement of the accused, and prepared the seizure list, which he has identified, and the same was earlier marked Exhibit-6. He has proved the formal FIR, which was marked Exhibit-13. He also conducted the raid for apprehending the accused, Bhikhari Mahto. He got the post-mortem report. He requested the Doctor of P.H.C, Gawan, for collecting the blood samples of the father and mother of the deceased for DNA test, and he gave an application before the Chief Judicial Magistrate, for DNA test of the accused, Mathura Yadav also, for which, Sri Kaushik Mishra, the Judicial Magistrate was deputed, and the permission was granted for collecting the blood sample of the accused. He went to the jail where in presence of the Jail Doctor and the Magistrate, the blood sample of the accused Mathura Yadav was collected. He also recorded the statements of the Magistrate and the Jailor. This witness has stated that the blood samples of the parents of the deceased were also collected and all the blood samples were sent for FSL Examination. After completing the investigation, he had submitted the charge-sheet. He also recorded the statements of the Magistrate and the Jailor. This witness has stated that the blood samples of the parents of the deceased were also collected and all the blood samples were sent for FSL Examination. After completing the investigation, he had submitted the charge-sheet. In his cross-examination, he has stated that the seized articles were not before him and he had submitted the charge-sheet without receiving the FSL Report. He had not made any investigation regarding the enmity between the accused and the victim's family. His attention was drawn towards the statements of some witnesses, but there is nothing of much importance, except that he has admitted that the witness, Ramdeo Saw had not stated before him that he had seen the accused, Mathura Yadav and Bhikhari Mahto, fleeing away after throwing the dead body, and Bhikhari was apprehended, whereas Mathura managed to flee away. He has denied the suggestion of making faulty investigation. 13. The FSL Reports were received and they have been taken into evidence, and marked as Exhibits-14 & 14/1. Both these documents show that the blood and semen were detected in the undergarment (janghia) of the victim girl, and blood was also found on the underwear of the accused Mathura Yadav. These exhibits also show that the blood and semen found in the janghia of the victim girl, matched with the DNA profile of the blood sample of the accused Mathura Yadav. These exhibits also show that bloodstains on the underwear of the accused Mathura Yadav, consisted of two human beings, one male and the other female. The male human blood was found to be of the accused himself, whereas the female human blood was found to be of the biological child of Munna Mandal and Rukmini Devi, i.e., the deceased girl. The bloodstained earth collected from the place of occurrence, contained the blood of the deceased girl, i.e., the biological child of Munna Mandal and Rukmini Devi. Through DNA test, it was also proved that the deceased girl was the biological offspring of Munna Mandal and Rukmini Devi. No human blood however, was found on the stick, other cloth and the blade of the tangi, as also in the glass slide containing the vaginal smear of the deceased girl, though all of them were bearing brownish stains. Through DNA test, it was also proved that the deceased girl was the biological offspring of Munna Mandal and Rukmini Devi. No human blood however, was found on the stick, other cloth and the blade of the tangi, as also in the glass slide containing the vaginal smear of the deceased girl, though all of them were bearing brownish stains. No semen could be detected in the underwear of the accused, or in the vaginal swab or smear of the deceased. 14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. The defence has adduced the documentary evidence in the case, but has not examined any witness. One certified copy of the Judgment in S.T No. 490 of 1989, has been proved as Exhibit-A, which shows that the informant, Ramdeo Saw was tried for the offences under Sections 307 and 324 of the Indian Penal Code, on the allegation of assaulting the accused Bhikhari Mahto, in which, he had been acquitted by the Trial Court in the year 2003 itself. The Exhibits-B & C are the FIR and the charge-sheet of the said case, and Exhibit-D is a notice in a proceeding under Section 107 of the Cr.P.C, in which, Ramdeo Saw was the first party and one Bandhu Sao was the second party. 15. On the basis of the materials on record, the Trial Court below has convicted the accused, Mathura Yadav for the offences under Sections 376 and 302 of the Indian Penal Code, whereas both the appellants have been convicted for the offence under Section 201 of the Indian Penal Code, and have been sentenced as aforesaid. 16. Learned counsel for the appellants has challenged the conviction and sentence of the appellants, submitting that there is no eye witness to the occurrence of rape and murder, and the case rests only on the circumstantial evidence, which is also very weak in the case, as no blood was found on the tangi blade, the stick, or other cloth, and no semen could be detected in the underwear of the accused, or in the vaginal swab or vaginal smear of the deceased, as is apparent from the forensic test reports proved as Exhibits-14 and 14/1. Even the weapon of offence was not produced in the Court, which is fatal to the prosecution, and in this connection, he has placed reliance upon the decision of the Hon'ble Supreme Court, in Sk. Yusuf Vs. West Bengal, reported in (2011) 11 SCC 754 . It is also submitted that no question was put to the accused, Mathura Yadav in his statement recorded under Section 313 of the Cr.P.C., with respect to the DNA test, and still the conviction of the appellant was based upon that piece of evidence, which cannot be sustained in the eyes of law. In this connection learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court in Shaikh Maqsood Vs. State of Maharashtra, reported in (2009) 6 SCC 583 . Learned counsel, accordingly, submitted that there being only circumstantial evidence against both the accused and there being no eyewitness to the occurrence of rape, murder or concealing the dead body, it was a fit case, in which, the appellants ought to have been given at least the benefits of doubt. 17. However, the fact remains that all the circumstances, which have been proved in this case, are against both these accused appellants. It has been proved on the basis of the evidence brought on record that it was the appellant Mathura Yadav, who had taken away the deceased girl along with him, holding her hand in presence of her grandfather P.W.-8 Ramdeo Saw, on the pretext of plucking mango for her. The child being aged seven years only, could easily be enticed on giving such allurement. The dead body of the child with ante-mortem injuries on her body, was found behind the boring house of the accused, Mathura Yadav and Bhikhari Mahto. It has come in the evidence of the I.O., P.W.-13 Arwind Kumar Manjhi, that the place of occurrence is a lonely place, and P.W.-8 Ramdeo Saw has also stated that there was no habitat nearby. There was cut injury on the neck of the dead body and there were bleedings from the private parts of the deceased, which fact is proved by all the material witnesses, examined in the case, and is fully corroborated by P.W.-6 Dr. Shashi Bhushan Choudhary, who had conducted the post-mortem examination on the dead body, under the observation of Dr. A.P.N. Deo, and the post-mortem report proved by him as Exhibit-2. Shashi Bhushan Choudhary, who had conducted the post-mortem examination on the dead body, under the observation of Dr. A.P.N. Deo, and the post-mortem report proved by him as Exhibit-2. All the material witnesses have stated that the bloodstained articles, including the bloodstained bed was found in the boring house of the accused, Mathura Yadav and the seizures of the bloodstained articles were also proved, which fact is also proved by P.W.-13 Arwind Kumar Manjhi, the I.O, of the case.P.W.-11 Srawan Mandal,as also P.W.-13 Arwind Kumar Manjhi, the I.O., of the case have stated that when the accused was arrested, he made the confession and on the basis of his confessional statement, the tangi was recovered. The seizure list has been proved as Exhibit-6, which contains the thumb impression of the accused, Mathura Yadav also. The janghia of the deceased girl, and the underwear of the accused Mathura Yadav were seized by the I.O., and sent for forensic examination. The fact remains that the janhgia of the deceased was found to contain the human blood and the semen, and Exhibit-14/1 clearly shows that they matched the DNA profile of the blood sample of the accused Mathura Yadav, and the female human blood found on his underwear also matched with the DNA profile of the deceased child. The bloodstained earth collected from the place of occurrence, contained the blood of the deceased girl. These circumstances prove beyond all reasonable doubts that it was the accused Mathura Yadav, who had ravished the child aged about seven years, and in order to conceal his crime, had committed the brutal murder of the child at the place of occurrence itself. 18. Though human blood could not be detected in the blade of the tangi, in the FSL report, but it was found bearing brownish stains. In some other articles also, human blood could not be detected, but all of them were found bearing brownish stains. In Modi's Textbook of Medical Jurisprudence and Texicology (24th Edition 2011), it is mentioned that bloodstains change their appearance from red, brownish-red to almost black after a passage of time, due to environmental factors (Chapter-16, page386). It further mentions that during the drying of bloodstains, many changes take place in their available biochemical markers, whether immunological or enzymic. In Modi's Textbook of Medical Jurisprudence and Texicology (24th Edition 2011), it is mentioned that bloodstains change their appearance from red, brownish-red to almost black after a passage of time, due to environmental factors (Chapter-16, page386). It further mentions that during the drying of bloodstains, many changes take place in their available biochemical markers, whether immunological or enzymic. Even after drying, bloodstains are likely to be exposed to varied environmental factors like temperature, humidity, chemical pollutants and micro-organisms in air and soil, and as a result some of the markers are at times, are damaged beyond recognition (Chapter-16, page-392). As such, non-finding of human blood on those articles, cannot be said to be fatal to the prosecution case, particularly, in view of the fact that all those articles were bearing brownish stains. The fact however, remains that the janhgia of the deceased was found to contain the blood and the semen of the accused Mathura Yadav, and the blood found on the underwear of the said accused was found to be of the deceased child. The bloodstained earth collected from the place of occurrence, contained the blood of the deceased girl. All these circumstances point out only towards the guilt of the accused Mathura Yadav, and leave no space for any other hypothesis. As such, there is no illegality in the findings of the Trial Court below, in convicting the appellant Mathura Yadav for the offences under Sections 376 and 302 of the Indian Penal Code. 19. The submission of the learned counsel for the appellant that the circumstance that the findings of the DNA test was not put to the accused in his examination under Section 313 of the Cr.P.C., is fatal to the prosecution, is absolutely misconceived. In Nar Singh Vs State of Haryana, reported in (2015) 1 SCC 496 , the law has been settled by the Apex Court as follows :- "30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer." (Emphasis supplied). If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer." (Emphasis supplied). It may be stated that in course of hearing we had given the opportunity to the learned counsel for the appellants to point out any difference that could have been caused, had this question was put to the accused in his examination under Section 313 of the Cr.P.C. Learned counsel could not point out any prejudice that could have been caused to the appellant. There could have been no difference in the result of this case, even if that question was put to the accused under Section 313 of the Cr.P.C. Learned counsel also very politely declined our offer to put that question to the accused through him, during the hearing of the appeal. 20. The dead body of the deceased was found, thrown in the putus bushes, which clearly shows that after committing rape and murder in the boring house, the dead body was thrown away in order to conceal the dead body, in an attempt to cause the disappearance of the evidence. The evidences of P.W.-1 Sudhir Saw, P.W.-2 Pramod Mandal, P.W.-5 Munna Mandal, P.W.-8 Ramdeo Saw and P.W.-11 Srawan Mandal, clearly show that Bhikhari Mahto was also seen with the accused, Mathura Yadav near the boring house in the morning. This fact also finds mentioned in the FIR itself. As such, there is no illegality in the findings of the Trial Court below, in convicting the appellants, Mathura Yadav and Bhikhari Mahto also for the offence under Section 201 of the Indian Penal Code. 21. Faced with this situation, learned counsel for the accused appellants has confined his arguments mainly challenging the death sentence, awarded to the accused Mathura Yadav, for the offence under Section 302 of the Indian Penal Code. We have heard learned counsels for both the sides in detail on the point of sentence. 22. Learned counsel for the State, supporting the death reference, has placed reliance upon the decisions of the Hon'ble Apex Court in Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 684 and Machi Singh & Ors. Vs. We have heard learned counsels for both the sides in detail on the point of sentence. 22. Learned counsel for the State, supporting the death reference, has placed reliance upon the decisions of the Hon'ble Apex Court in Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 684 and Machi Singh & Ors. Vs. State of Punjab, reported in (1983) 3 SCC 470 , giving the necessary guidelines for awarding the death sentence, and submitted that in Machi Singh's case (supra), it has been held that when the victim of murder is an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, the case comes within the rarest of the rare category, and it is a fit case for imposing the death sentence. Learned counsel has further placed reliance upon the decision of the Hon'ble Apex Court in Bantu Vs. State of U.P., reported in (2008) 11 SCC 113 , which related to the rape and murder of a child, aged about five years, wherein the Apex Court held that the case fell within the category of rarest of rare cases, affirming the death sentence. Similarly, in Shivaji Vs. State of Maharashtra, reported in (2008) 15 SCC 269 , which related to rape and murder of a child aged about nine years, it was held that the plea that in cases of circumstantial evidence, the death sentence should not be awarded, is without any logic. This case was also found to be falling within the category of rarest of rare cases, and the death sentence to the accused was affirmed. In Mohd. Mannan Vs. State of Bihar, reported in (2011) 5 SCC 317 , which related to rape and murder of a child aged about eight years, again it was held to be falling within the rarest of rare category, and death sentence was affirmed by the Supreme Court, re-iterating the guidelines for imposing death sentence, as follows :- "24. Further, crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court has laid down for imposition of the death penalty." (Emphasis supplied). 23. Again in Purushottam Dashrath Borate Vs. State of Maharashtra, reported in AIR 2015 SC 2170 , the Supreme Court, in a case related to gang rape and murder of a married woman, re-iterated the need of imposing just punishment upon the accused, holding that the undue sympathy shown to the accused shall do more harm. It was also held that the age of the accused or his family background or lack of criminal antecedents, cannot alone be considered as mitigating circumstances. The death sentence was affirmed by the Hon'ble Apex Court, upon the accused in spite of his young age. 24. Again, in Vasanta Sampat Dupare Vs. State of Maharashtra, reported in (2015) 1 SCC 253 , which related to rape and murder of a child aged about four years, who, after the rape was committed upon her, was crushed to death by stone, the Hon'ble Supreme Court affirmed the death sentence, finding the case to be one under the category of rarest of rare cases. In this case, the accused-appellant had also filed the Review Petition in the Supreme Court, which was again dismissed by the Judgment, reported in (2017) 6 SCC 631 . 25. In this case, the accused-appellant had also filed the Review Petition in the Supreme Court, which was again dismissed by the Judgment, reported in (2017) 6 SCC 631 . 25. Placing reliance on these decisions, learned counsel for the State submitted that the case in hand relates to brutal murder of the victim girl after commission of rape upon her by the accused in extremely brutal, gruesome and diabolical manner, and the case comes within the category of rarest of rare cases, and as such it is a fit case in which the death sentence awarded to the accused by the Trial Court below be confirmed, irrespective of his age, family background or lack of criminal antecedents, which cannot be considered as mitigating circumstances. 26. On the other hand, learned counsel for the appellants has submitted that simply because the case relates to rape and murder of a child, it does not come under the category of rarest of rare cases. Learned counsel has placed reliance upon the decisions of the Supreme Court in Sebastian Vs. State of Kerela, reported in (2010) 1 SCC 58 , Ram Deo Prasad Vs. State of Bihar, reported in (2013) 7 SCC 725 , Tattu Lodhi Vs. State of M.P., reported in (2016) 9 SCC 675 , and in all these cases, the child aged between 2 to 7 years were murdered after committing rape upon them. The Supreme Court, in the facts of these cases, held that they do not come within the category of rarest of rare cases, and the death sentence awarded by the Trial Court below, and confirmed by the High Court, were commuted to life imprisonment. Learned counsel also placed reliance upon the decision of the Apex Court in Ramnaresh and Ors. Vs. State of Chattisgarh, reported in (2012) 4 SCC 257 , which related to the gang rape and murder of a married lady, and in that case also, the Supreme Court held that it did not come within the category of rarest of rare cases, and the death sentence was converted into the life sentence. Learned counsel has also placed reliance upon the decision of Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat, reported in (2011) 2 SCC 764 , which also related to rape and murder of a child by the guard of the building. Learned counsel has also placed reliance upon the decision of Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat, reported in (2011) 2 SCC 764 , which also related to rape and murder of a child by the guard of the building. The Hon'ble Supreme Court laid down the law that it was obligatory upon the Trial Court to have given the finding as to a possible rehabilitation and reformation and the possibility that the accused could still be a useful member of the society, in case, he was given a chance to do so, and in absence of such finding, the death sentence awarded by the Trial Court and confirmed by the High Court, was commuted to the sentence for whole life, but subject to any remission or commutation of sentence by the State Government for good and social reasons. Similar view was taken by the Apex Court in Amit Vs. State of U.P, reported in (2012) 4 SCC 107 , which also related to rape and murder of a three years old child. In the said case also, the ratio of Rameshbhai Chandhubhai Rathod's case (supra), was applied by the Supreme Court and the death sentence was commuted to the sentence of life in the same terms. 27. Placing reliance on these decisions, learned counsel submitted that the present case also, does not come within the purview of rarest of rare cases, and it is a fit case in which the death sentence passed by the Trial Court below be set aside for the offence under Section 302 of the Indian Penal Code. It is also submitted that the Trial Court has not given any finding as to a possible rehabilitation and reformation and the possibility that the accused could still be a useful member of the society, in case, he is given a chance to do so, and in absence of such finding, the death sentence awarded by the Trial Court cannot be sustained in the eyes of law. 28. We cannot loose sight of some landmark Judgments on the issue of awarding death sentence, rendered by the Hon'ble Apex Court, after the Judgment was reserved by us in this case. In the case of Rajendra Pralhadrao Wasnik Vs. 28. We cannot loose sight of some landmark Judgments on the issue of awarding death sentence, rendered by the Hon'ble Apex Court, after the Judgment was reserved by us in this case. In the case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, reported in AIR 2019 SC 1 , which related to rape and murder of a child aged about three years, and the appellant was found guilty and convicted for the offences under Sections 376(2)(f), 377 and 302 of the Indian Penal Code, in which, the death sentence was awarded by the Trial Court for the offence under Section 302 of the Indian Penal Code, which was confirmed by the High Court. Criminal Appeal filed by the appellant also stood dismissed by the Supreme Court, as reported in (2012) 4 SCC 37 . The review petitions were then filed by the appellant, which also stood dismissed by the Supreme Court by order dated 07th March 2013. Thereafter, in a completely different case, the Constitution Bench of the Supreme Court in Mohd. Arif Vs. Registrar, Supreme Court of India, reported in (2014) 9 SCC 737 , considered two basic issues in the cases where death sentence was pronounced by the High Court: (1) whether the hearing of such cases should be by a Bench of at least three if not five Judges of the Supreme Court and (2) whether the hearing of review petitions in death sentence cases should not be by circulation, but should only be in open Court. Though the Supreme Court was not persuaded to accept the submission that the appeal should be heard by five Judges of the Court, but it decided that in every appeal pending in the Court in which the death sentence had been awarded by the High Court, only a Bench of three Judges shall hear the appeal. As regards the oral hearing of the review petitions in the open Court, it was held that a limited oral hearing ought to be given, and it was held that this direction would also apply where the review petition is already dismissed, but the death sentence was not executed. This gave an opportunity of consideration of the matter of the accused Rajendra Pralhadrao Wasnik again by the Supreme Court. This gave an opportunity of consideration of the matter of the accused Rajendra Pralhadrao Wasnik again by the Supreme Court. As regards the said accused, it was found by the Supreme Court that the High Court as well as the Supreme Court had not taken into consideration the probability of reformation, rehabilitation and social integrity of the appellant into the society. The Court, however, found that the appellant was accused in other three similar nature of cases. The Hon'ble Supreme Court in the backdrop of these facts laid down the law as follows :- "75. -------------. It must be appreciated that a sentence of death should be awarded only in the rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important in so far as the sentencing process is concerned. In other words, courts must "make assurance double sure"." (Emphasis supplied). Even in the backdrop of the fact that the accused was found to be accused in three similar nature of cases, and the case related to the gruesome rape and murder of a girl child aged about three years, the Hon'ble Apex Court, laying down the law that in absence of any consideration about the probability of reformation, rehabilitation and social re-integration of the appellant into the society, the death sentence awarded upon the appellant, could not be maintained, commuted the death sentence of the accused, which was earlier affirmed up to the Supreme Court, to the life imprisonment with direction that the accused should not be released from the custody for the rest of his normal life. 29. Again in Sachin Kumar Singhraha Vs. State of M.P., reported in 2019 SCC On Line SC 363, in which case a school going girl was subjected to rape, and her school bag and dead body were recovered at the instance of the accused, pursuant to his disclosure statement, it was not found to be a case of such category, where the death sentence was necessarily to be imposed, and the death sentence imposed upon the accused was commuted to the sentence of life imprisonment, with no remission for 25 years. In the facts of the case, the Hon'ble Apex Court was not convinced that the probability of reform of the accused was low, in absence of any criminal antecedent and keeping in mind his overall conduct. 30. Taking cues from the decisions of the Hon'ble Apex Court in Rajendra Pralhadrao Wasnik's case and Sachin Kumar Singhraha's case (supra), we are of the view that the principles laid down therein, would squarely cover the case of the appellant in the present case also. The probability of reformation, rehabilitation and social re-integration of the appellant into the society, of the present appellant, also cannot be ruled out, in absence of any criminal antecedent of the accused Mathura Yadav. 31. But at the same time we just cannot loose sight of the manner in which the deceased was murdered, brutally assaulting her by axe, cutting her neck and inflicting other injuries in her body, including the pubic region, after committing rape upon her. In the facts of this case, we are of the considered view, that though the extreme penalty of death was not warranted in the facts of this case, but the accused does not deserve any leniency in the matter of remission of the sentence. As such, the impugned order of sentence, awarding the capital punishment of death to the appellant, Mathura Yadav, for the offence under Section 302 of the Indian Penal Code, is hereby, commuted to the life sentence, and taking into consideration the fact that this case relates to brutal, gruesome and diabolical murder of a girl child after committing rape upon her, we direct that the life sentences awarded to the appellant for both the offences under Sections 302 and 376 of the Indian Penal Code, shall be for the whole of his biological life, without any benefit of remission. In our considered view, this alternative option shall serve the interest of justice. The sentence passed against the appellant Mathura Yadav for the offence under Section 201 of the Indian Penal Code shall also run concurrently. We also hereby, affirm the sentence of the appellant Bhikhari Mahto for the offence under Section 201 of the Indian Penal Code. 32. In our considered view, this alternative option shall serve the interest of justice. The sentence passed against the appellant Mathura Yadav for the offence under Section 201 of the Indian Penal Code shall also run concurrently. We also hereby, affirm the sentence of the appellant Bhikhari Mahto for the offence under Section 201 of the Indian Penal Code. 32. Accordingly, the impugned Judgment of conviction dated 08th April, 2016 and Order of sentence dated 12th April, 2016, passed by the learned Additional Sessions Judge-V, Giridih, in S.T Case No.273 of 2011, stand affirmed, with the modification in the sentence of the appellant Mathura Yadav, as aforesaid. 33. The appellant Bhikhari Mahto is on bail. His bail is hereby, cancelled, and he is directed to surrender in the Court below forthwith, to serve out his sentence. The Trial Court below is also directed to issue process forthwith, compelling the surrender / production of the appellant Bhikhari Mahto for serving out the sentence. 34. Before parting with this Judgment, we find P.W.-5 Munna Mandal and P.W.-14 Rukmani Devi, the parents of the deceased, are the victims of crime in this case and they are required to be duly compensated under the 'Victim Compensation Scheme' under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that these victims of crime may be duly compensated at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 35. The aforesaid Criminal Appeal is accordingly, dismissed with the modification of the sentence of the appellant Mathura Yadav for the offence under Section 302 of the Indian Penal Code. The Death Reference is also answered, accordingly. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.