Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 422 (ORI)

State Of Odisha v. Sunil Nayak

2021-10-07

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J. - The death reference under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ' the Code' for brevity) was taken up for hearing on different dates. The death reference was submitted by the learned Additional Sessions -Cum-Special Judge, Keonjhar in Special Case No.11 of 2017 arising out of G.R. Case No.13 of 2017 relating to Champua P.S. Case No.05 of 2017 for commission of offences under Sections 363, 376(2)(f), 376(2)(i), 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'the Penal Code' for brevity) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act for brevity). The reference made by the learned Additional Sessions Judge-Cum-Special Judge, Keonjhar has been registered as DSREF No.05 of 2019 and the Jail Criminal Appeal preferred by the Appellant, in which Mr. Milan Kanungo, learned Senior Advocate appeared as Amicus Curie on the request of the Court, has been registered as JCRLA No.97 of 2019. 2. Learned Additional Sessions Judge-Cum-Special Judge, Keonjhar vide the Judgment and Order dated 19.12.2019 passed in Special Case No.11 of 2017 convicted the Condemned-PrisonerAppellant (hereinafter referred to as 'the Appellant' for brevity), namely, Sunil Nayak under Sections 302, 363, 376 (2)(f), 376(2(i) and 201 of the Penal Code read with Section 6 of the POCSO Act. He proceeded to sentence the Appellant with capital punishment for the offence under Section 302 of the Penal Code; and to undergo imprisonment for life i.e. the remaining period of the natural life and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to suffer further rigorous imprisonment for one year for the offences under Sections 376(2)(f) and 376(2)(i) of the Penal Code; and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further rigorous imprisonment for six months for the offence under Section 201 of the Penal Code; and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further rigorous imprisonment for six months for the offence under Section 363 of the Penal Code. No separate sentence has been awarded for the offence under Section 6 of the POCSO Act as per the provision under Section 42 of the POCSO Act. No separate sentence has been awarded for the offence under Section 6 of the POCSO Act as per the provision under Section 42 of the POCSO Act. Learned Additional Sessions Judge-Cum-Special Judge, Keonjhar submitted the records to this Court under Section 366 of the Code. 3. It is alleged by the prosecution that on 14.01.2017 at about 3 P.M. the Informant (name withhold) lodged a written report before the Inspector-In-Charge, Champua Police Station, Keonjhar stating therein that his younger daughter, aged about three years was playing near to his house. While he returned to house found that she was absent in the house, but on thorough search, she could not be traced out, for which a missing report was filed before the Champua Police Station on 14.01.2017. While the Informant returned from Police Station to village got information that the dead body of his younger daughter was lying in the kitchen of the Village School. Suspecting that someone had committed the murder of his daughter, the informant lodged written report before the Police Station on the same day. On receipt of the report of the informant, the Inspector-In-Charge, Champua Police Station registered Champua P.S. Case No.05 of 2017 and the investigation was taken up. During the course of investigation, the Investigating Officer examined the informant and other witnesses; visited the spot; made inquest over the dead body of the deceased; sent the dead body to Sub-Divisional Hospital, Champua for postmortem examination; sent requisition for deputation of Dog squad and scientific team; seized the sample earth, blood stained earth and one pair of chapal, on production by the Scientific Officer, who collected the same from the spot. During the course of investigation, the Investigating Officer also seized the wearing apparels of the deceased and two numbers of vials containing the biological samples of the deceased, received information from sources that the accused Sunil Nayak has committed the crime, apprehended him, who confessed his guilt. During the course of investigation, the Investigating Officer also seized the wearing apparels of the deceased and two numbers of vials containing the biological samples of the deceased, received information from sources that the accused Sunil Nayak has committed the crime, apprehended him, who confessed his guilt. The Investigating Officer, during the course of investigation, arrested the accused, seized his wearing apparels and one cycle from him, sent him for medical examination, seized three numbers of vials containing the biological samples of the accused, sent the exhibits to State Forensic Science Laboratory, Rasulgarh, Bhubaneswar (hereinafter referred to as 'RFSL, Bhubaneswar' for brevity) chemical examination, seized immunization register of Sasang Anganwadi Center to ascertain the date of birth of the deceased and on completion of investigation, submitted charge sheet under Sections 363, 376(2)(i), 302 of the Penal Code read with Section 4 of the POCSO Act. 4. The Appellant took a plea of complete denial to the allegations leveled by the prosecution against him and also took the plea of false implication in the case. 5. In order to bring home the charge against the Accused/ Appellant, the prosecution examined 28 witnesses and tendered documents marked as Exts.1 to 23, and material objects marked as M.Os. I to X. Out of them, P.W.1 (name withhold) is the Informant as well as father of the deceased. P.W.2 (Durga Charan Mahakud) is the scribe of the F.I.R. P.Ws.3 (Pratap Naik), 4 (Chaitanya Nayak), 5 (Raghumani Naik) and 26 (Choudhury Nayak) are the inquest witnesses. P.W.6 (name withhold) is the mother of the deceased and wife of P.W.1. P.Ws.7 (Nami Mahakud), 8 (Suban Mahakud), 11 (Satyaranjan Naik), 12( Binod Mahakud @ Ieha) and 22 ( Dinesh Nayak @ Dilu) are the witnesses to circumstances. P.W.9 (Sarat Chandra Nayak) is the elder brother of P.W.1. P.Ws.14 (Prafulla Nayak) and 16 (Ratnakar Nayak) are the witnesses to confessional statement of the Accused. P.Ws.10 (Rajat Kumar Nayak @ Turu), 15(Raju Nayak), 24(Bibhuti Nayak @ Pukulu) and 25(Kumari Nayak) are the independent witnesses. P.Ws.13 (Goutam Nayak), 17(Basanti Manjari Mahakud) and 23(Labanyamayee Nayak) are the seizure witnesses. P.W.21 (Jasobant Dehury) is a Scientific Officer. P.Ws.19 (Dr. Jogendranath Acharya) and 20 (Dr. Madhusudan Baliarsingh) are the Doctors. P.W.18 (Bhajaman Karta) is the Investigating Officer. On the other hand, the defence examined one witness as D.W.1 (Sunil Nayak), who is the accused himself. P.Ws.13 (Goutam Nayak), 17(Basanti Manjari Mahakud) and 23(Labanyamayee Nayak) are the seizure witnesses. P.W.21 (Jasobant Dehury) is a Scientific Officer. P.Ws.19 (Dr. Jogendranath Acharya) and 20 (Dr. Madhusudan Baliarsingh) are the Doctors. P.W.18 (Bhajaman Karta) is the Investigating Officer. On the other hand, the defence examined one witness as D.W.1 (Sunil Nayak), who is the accused himself. No document is adduced on behalf of the defence. 6. After analysis of the evidence on records, the learned trial judge held that the following circumstances have been established in this case: (i) P.W.1 and his wife P.W.6 along with their elder daughter had been to Champua market at 2.00 to 2.30 P.M. 13.01.2017 leaving the deceased in the house with P.W.7; (ii) P.W.7 disclosed to P.W.1 that the accused Sunil had taken the victim on his cycle for roaming; (iii) P.W.1 searched for the accused and his daughter and at 9.00 P.M. he met the accused on the village road and on being asked, the accused told him that he had left the deceased girl at village Chhak; (iv) On 14.01.2017 at 10.00 A.M. to 11.00 A.M. P.W.8 (Suban Mahakud) informed P.W.1 that the dead body of the deceased was lying in the kitchen room of Sasanga U.P. School; (v) Dead body of the deceased was lying in the corner of the kitchen of the aforesaid School; (vi) During course of inquest, the informant disclosed before the Investigating Officer that his daughter has been murdered in the kitchen of the School; (vii) P.W.7 stated in court that on the fateful day about 4.30 P.M. to 5.00 P.M. the accused had taken the victim from her possession, but did not bring the deceased to their house; (viii) P.W.12 testified that on the occurrence day, Sunil came to the playground with the deceased on his cycle and he played with them. Thereafter, Sunil took the deceased towards Sala (village Deity) on his cycle; (ix) It is amply established and also not disputed by the defence that the date of birth of the deceased was 12.08.2013; (x) The death of the deceased was due to forceful sexual penetration resulting in shock due to pain and haemorrhage and there was wide spread lacerated injury extending up to rectum and abdomen which led the doctor to conclude that there was forcible sexual intercourse; (xi) The Condemned/ Prisoner in presence of the witnesses gave discovery statement under Section 27 of the Indian Evidence Act, 1872 and led to a straw stack and gave recovery of pant belonging to himself which was seized by the police; and (xii) The Chemical Examination of the wearing apparels of the deceased and the Condemned/ Prisoner produced by the Investigating Officer reveals that the blood stain and semen stain of human origin were found on the pant of the deceased and blood stains of human origin were found on the Banion and Niker of the Condemned/ Prisoner. 7. P.W.1 is the father of the deceased as well as the Informant in this case. According to P.W.1, on 13.01.2017, he along with his wife (P.W.6) and elder daughter had been to Champua market at 2.00 to 2.30 P.M. leaving the deceased, who is his younger daughter aged about three years, in the house with Nami Mahakud (P.W.7). As per the version of P.W.1, while they returned to house at 5.00 P.M. found the deceased was absent in the house, P.W.7 disclosed that the accused Sunil had taken the victim in his cycle for roaming. It is the evidence of P.W.1 that he searched the accused and his daughter and that at 9.00 P.M., he met the accused on the village road and on being asked, the accused told that he had left the deceased girl at village Chhak. According to P.W.1, as he could not trace out his daughter, he informed the fact orally to Champua Police Station on 14.01.2017. Further evidence of P.W.1 is that on 14.01.2017 at 10.00 to 11.00 A.M., one Suban Mahakud (P.W.8) of their village informed him that the dead body of the deceased was lying in the kitchen room of Sasanga Upper Primary School. Further evidence of P.W.1 is that on 14.01.2017 at 10.00 to 11.00 A.M., one Suban Mahakud (P.W.8) of their village informed him that the dead body of the deceased was lying in the kitchen room of Sasanga Upper Primary School. As per the evidence of P.W.1, he lodged F.I.R. at Police Station on the same day and police came to the spot. He proved the F.I.R. marked as Ext.1 and his signature on it marked as Ext.1/1. P.W.1 further deposed that police conducted inquest over the dead body of his daughter in his presence and prepared inquest report. He proved the inquest report marked as Ext.2 and his signature on it marked as Ext.2/1. According to P.W.1, the dead body was lying in the corner of the kitchen and her back was leaning against the wall and there was a black mark on the waist of the dead body. 7.1. This witness stated in his cross-examination that the accused is his agnate. It is elicited from P.W.1 during cross-examination that he has not mentioned in the F.I.R. that on 13.01.2017 at 9.00 P.M. the accused disclosed that he had left the victim at village Chhak and he has not disclosed the name of the accused at the time of preparation of inquest. 7.2. Besides the above, no other material is elicited from P.W.1 by the defence to discredit his testimony. The inquest report is prepared at 3.45 P.M. on 14.01.2017 and the dead body was recovered on the same day at about 2.00 P.M. The F.I.R. was lodged on the same day at 3.00 P.M. F.I.R. does not reveal the name of the accused. The inquest report (Ext.2) reveals that the Informant has disclosed at the time of inquest that someone has committed murder of his daughter in the kitchen of the School. Since by that time the Informant had not known the involvement of the accused in the said crime, non-disclosure of name of the accused at the time of inquest by the Informant and non-mentioning the name of the accused in the F.I.R. is not fatal to the prosecution case in the background that the accused is a close relative. 7.3. P.W.6 supported the version of P.W.1 and deposed that on being asked, P.W.7 disclosed that about 5.00 P.M. on 13.01.2017 the accused had taken the deceased with him from their house for roaming. 7.3. P.W.6 supported the version of P.W.1 and deposed that on being asked, P.W.7 disclosed that about 5.00 P.M. on 13.01.2017 the accused had taken the deceased with him from their house for roaming. She also testified that she along with her husband went to Champua Police Station on the next day morning to lodge a missing report of their daughter and after their return to the village, Suban Mahakud (P.W.8) informed them that the dead body of the deceased was lying in the kitchen of Sasang UGUP School. According to P.W.6, they suspected the accused as he had taken the deceased from their house, but he had not brought back her. This witness stated in her cross-examination that we did not go for searching their victim daughter in the night of the occurrence with an impression that she might have gone to the house of her maternal uncle. Except giving some suggestions, nothing is brought from the mouth of P.W.6 during cross-examination to discredit her testimony. 7.4. P.W.7 supported the version of P.Ws.1 and 6 and deposed that on the day of occurrence P.W.1, P.W.6 and their eldest daughter had gone to Champua market and the deceased was with her in their house. P.W.7 testified that on that day at about 4.30 P.M. to 5.00 P.M. the accused had taken the victim from her possession for roaming but he had not brought the deceased to their house. According to P.W.7, she disclosed this before the parents of the deceased after their return and on the next day, they got information from Suban (P.W.8) that the dead body of the deceased was lying in the kitchen of Sasang School. As per the version of P.W.7, he went to the spot and found the dead body of the victim was lying in the corner of the kitchen of the School. During cross-examination, this witness stated that on being asked, the accused disclosed that he had left the victim-deceased near a shop. The defence did not bring any material from P.W.7 to break her testimony that the accused had taken the deceased from her and thereafter, the victim had not returned to the house. 7.5. P.Ws.11, 12 and 22 are the teenage boys of that village. P.W.11 in his examination-in-chief stated that he heard that the deceased died during the time of Makara. The prosecution declared this witness hostile. 7.6. 7.5. P.Ws.11, 12 and 22 are the teenage boys of that village. P.W.11 in his examination-in-chief stated that he heard that the deceased died during the time of Makara. The prosecution declared this witness hostile. 7.6. P.W.12 testified that in the morning of the date of occurrence he had taken the cattle for grazing and after return he took his meal with the deceased in his house and went to play chaka in the playground at about 4.00 to 5.00 P.M. Further evidence of P.W.12 is that while they were playing, Sunil came to the playground with the deceased in his cycle and played with them. P.W.12 stated that after sometime, Sunil took the deceased towards Sala (Village Deity) in his cycle. P.W.12 deposed that while he returned to his house, he did not find the deceased in her house and on the next day, he heard that the deceased had died, and her dead body was lying in the kitchen of School. This witness stated in his cross-examination that the house of deceased is about 50 meters away from Sala of their village. The village School where the dead body of the deceased was lying is 300 meters away from Sala. Two roads from Sala, one is leading towards School and other is towards the house of deceased. He could not say in which direction Sunil had gone with the deceased from Sala. The evidence of P.W.12 is that the accused Sunil along with the deceased had come to the field where they were playing remained unchallenged. Further evidence of P.W.12 is that the accused left the field with the victim remained unchallenged. From the version of P.W.12 it is also found that the accused went with the victim (deceased) towards Sala and from that Sala a road is leading to the School, where the dead body of the deceased was lying. 7.7. P.W.22 deposed in his evidence that the deceased died just one day prior to Makara in the year of 2017. P.W.22 stated that he had been to Makara Yatra and on his return, he heard the death of the victim. 7.8. 7.7. P.W.22 deposed in his evidence that the deceased died just one day prior to Makara in the year of 2017. P.W.22 stated that he had been to Makara Yatra and on his return, he heard the death of the victim. 7.8. P.W.8 deposed in his evidence that the occurrence took place on 13.01.2017 and on 14.01.2017 at about 2.00 P.M. he had gone to Sasang UGUP School to take bath in the tube well and after keeping the bucket near the tube well, he went to the nearby hillock to attend call of nature. According to P.W.8, while he returned to the tube well, he found that the door of the kitchen of the school was half open, and anxiously he went near to the door and found the deceased was in sitting position inside the kitchen resting her back against the wall and she was not moving. P.W.8 stated that immediately he made hulla calling 'Babula Kaka and Turu Bhai'. P.W.8 stated that previously he had heard in the night of 13.01.2017 that the victim girl was missing from her house. P.W.8 stated that immediately Babula and Turu came to the spot and thereafter police came and declared the victim was dead. Nothing material is elicited by the defence during cross-examination, which will create any doubt in the testimony of P.W.8. 7.9. Said Babula and Turu were examined as P.Ws.9 and 10. P.W.9, the elder brother of the Informant, supporting the evidence of P.W.1, deposed that being informed by P.W.8 at about 2.00 P.M. on 14.01.2017, he along with the Informant and other persons had been to the spot and found the dead body of the victim girl was there inside the kitchen. According to P.W.9, blood and urine soaked at the spot. P.W.10 deposed that on 13.01.2017 he heard that the victim was missing from her house and on 14.01.2017 being called by P.W.8, he along with others went to the School and found the dead body of the deceased inside the kitchen. 7.10. P.W.9 stated in his cross-examination that the floor of the kitchen the School was cement floor and police had brought the dead body of the victim from the kitchen. 7.10. P.W.9 stated in his cross-examination that the floor of the kitchen the School was cement floor and police had brought the dead body of the victim from the kitchen. Nothing material is brought from the mouth of P.W.10 during cross-examination to demolish his testimony that on 14.01.2017 at about 1.00 to 2.00 P.M. Suban Mahakud called them to the School and they went to the School and found the dead body of the deceased inside the kitchen. 7.11. P.W.2 deposed that he has written the F.I.R. on 14.01.2017 as per the version of the father of the deceased. He proved the F.I.R. marked as Ext.1 and his signature along with his endorsement marked as Ext. 1/2. The testimony of P.W.2 remained unchallenged. 7.12. P.Ws.3, 4, 5 and 26 supported the version of P.W.1 regarding missing of the deceased from the house and recovering her dead body from the kitchen of Sansang U.P. School. According to them, police conducted inquest over the dead body of the deceased in their presence. They proved their signatures marked as Ext.2/2, Ext.2/3, Ext.2/4 and Ext.2/5 respectively in the inquest report (Ext.2). The evidence of these witnesses remained unshaken so far as inquest on the dead body of the deceased is concerned. 7.13. P.Ws.13, 27 and 28 are the seizure witnesses. P.W.13 stated in his evidence that the dead body of the victim was lying in the kitchen of Sasanga U.P. School. According to P.W.13, he had been to the spot and the police seized two chapals of the victim, sample earth and blood stain earth from the spot and seizure list is prepared in his presence. He proved the seizure list marked as Ext.3 and his signature on it marked as Ext.3/1. P.W.27, a Police Constable, deposed that on 15.01.2017 he had taken the dead body of the deceased to Sub-Divisional Hospital, Champua for post-mortem examination and after post-mortem examination, the doctor handed over to him the wearing apparels, bangles, Paunji and biological samples of the deceased. According to P.W.27, he produced the same before the Investigating Officer, who seized those articles. He proved the seizure list marked as Ext.12 and his signature on it marked as Ext.12/1. P.W.28, a Police Constable, supporting the version of P.W.27 stated that in his presence, the Investigating Officer seized the above articles. He proved his signature marked as Ext.12/2 in the seizure list (Ext.12). He proved the seizure list marked as Ext.12 and his signature on it marked as Ext.12/1. P.W.28, a Police Constable, supporting the version of P.W.27 stated that in his presence, the Investigating Officer seized the above articles. He proved his signature marked as Ext.12/2 in the seizure list (Ext.12). The evidence of these witnesses remained unchallenged so far as seizure is concerned. 7.14. P.W.21, the Scientific Officer, DFSL, Keonjhar stated in his evidence that on 15.01.2017, on police requisition, he visited the spot at village Sasang and the scene of crime was an abandon kitchen of Sasang UGUP School. According to P.W.21, prior to his arrival, the dead body was dispatched by the Investigating Officer for autopsy. P.W.21 deposed that the abandon kitchen room is a single room building having cement flooring, having one window without door only window grill, one entrance door having old tin door, one sky light. According to P.W.21, the measurement of entrance door is 6 feet x 3 feet, kitchen room 10.4 feet x 10.4 feet x 8.4 feet and window 3 feet x 2.7 feet. He further stated that he collected blood stained earth from the floor of the kitchen, sample earth, one pair green colour relaxo chapal and one metallic round ring from the spot, sealed, signed and handed over to the Investigating Officer. He proved his report marked as Ext.23 and his signature on it marked as Ext.23/1. According to P.W.21, the Investigating Officer seized those articles in his presence. He proved his signature marked as Ext.3/2 in the seizure list (Ext.3). He also identified the seized samples viz. a pair of chapal, sample earth, blood stained earth and a metallic ring marked as M.Os. V, VI, VII and X respectively. It is elicited from the cross-examination of P.W.21 that if a spot would not have disturbed prior to arrival of Scientific Team, then absence of any mark of violence on the floor shall negate the entry of a person in the room. This opinion of the Scientific Officer is merely an opinion and no way demolishing the testimony of P.W.9 who had seen the dead body first, whose evidence remained unchallenged that the deceased child was found in a sitting condition inside the kitchen resting her back against the wall. This opinion of the Scientific Officer is merely an opinion and no way demolishing the testimony of P.W.9 who had seen the dead body first, whose evidence remained unchallenged that the deceased child was found in a sitting condition inside the kitchen resting her back against the wall. It is highly improbable that a three years old girl child having severe rupture injury on her private part will go to an abandoned kitchen room of the School suo motu or any one had thrown her into the kitchen from outside. 7.15. P.W.17 is an Anganwadi worker and P.W.23 is a Teacher in Sasang UGUP School. According to P.W.17, Police had come to their centre on 08.03.2017 and seized the immunization register relating to the date of birth or the deceased and after seizure it was given to her zima. She proved the seizure list and zimanama marked as Ext.7 and Ext.8 respectively and her signature thereon marked as Ext.7/1 and Ext.8/1 respectively. P.W.23 supported the version of P.W.17 and proved her signature marked as Ext.7/3 in the seizure list (Ext.7). According to P.W.17, the date of birth of the deceased is 12.08.2013. 7.16. P.Ws.19 and 20 are the doctors. P.W.19 stated that on 20.01.2017 on police requisition at 1.50 P.M. he examined the accused Sunil Nayak and prepared report. P.W.19 further stated that he collected the biological samples of the accused and handed over to the police. P.W.19 opined that in spite of all negative findings, sexual intercourse could not be ruled out. He proved the medical report of the accused marked as Ext.21 and his signature on it marked as Ext.21/1. P.W.20 deposed that on 15.01.2017 at 10.15 A.M. he conducted post-mortem examination on the dead body of the deceased at Sub-Divisional Hospital, Champua and prepared the report. According to the doctor, the cause of death was due to possible forceful sexual penetration resulting in shock due to pain and haemorrhage. According to the doctor, the nature of death is homicidal and time since death was around 34 hours of PM examination. He proved the PM report marked as Ext.22 and his signature on it marked as Ext.22/1. During cross-examination, P.W.20 stated that he found the vagina admits two fingers and there was wide spread lacerated injury extending up to rectum and abdomen, from which he came to the conclusion that there was forcible sexual intercourse. He proved the PM report marked as Ext.22 and his signature on it marked as Ext.22/1. During cross-examination, P.W.20 stated that he found the vagina admits two fingers and there was wide spread lacerated injury extending up to rectum and abdomen, from which he came to the conclusion that there was forcible sexual intercourse. P.W.20 stated in his cross examination that he found two fingers opening in the vagina as there was rupture injury. The doctor denied the suggestions of the defence that the injuries are possible in case of falling from a cycle or due to accidental digital penetration or if a child sit on the front rod of a cycle hanging both legs to both the sides. 7.17. P.Ws.14 and 16 are the witnesses to the confessional statement of the accused. They proved the confessional statement of the accused under Section 27 of the Indian Evidence Act marked as Ext.4 and their signatures on it marked as Ext.4/1 and Ext.4/2 respectively. According to P.W.16, the accused led them to a straw stack from where he recovered his pant and the police seized the same in his presence. He proved the seizure list marked as Ext.5 and his signature on it marked as Ext.5/2. According to P.W.16, police seized a cycle of the accused being produced by himself in his presence. He proved the seizure list marked as Ext.6 and his signature thereon marked as Ext.6/2. P.W.14 stated during cross examination that the accused had brought his ganji and pant from the stacked straw in the courtyard of his house and handed over the same to police, who seized the same in his presence. He proved the seizure list marked as Ext.5 and his signature on it marked as Ext.5/1. According to P.W.14, police seized the cycle of the accused being produced by himself from his house in his presence. He proved the seizure list (Ext.6) and his signature on it marked as Ext.6/1. However, during cross-examination, this witness stated that he has not seen as to who had brought the pant and ganji of the accused and from which place it was recovered. As such, the evidence of P.W.14 cannot be relied upon. 7.18. P.W.15 did not support the prosecution case and deposed that he has not knowledge about the occurrence. The prosecution declared P.W.15 hostile. 7.19. As such, the evidence of P.W.14 cannot be relied upon. 7.18. P.W.15 did not support the prosecution case and deposed that he has not knowledge about the occurrence. The prosecution declared P.W.15 hostile. 7.19. P.W.18, the Investigating Officer, deposed in his examination-in-chief that on the written report of the Informant Rajat Kumar Nayak on 14.01.2017, the Inspector-In-Charge, Debendranath Pingua, registered a case vide Champua P.S. Case No.05 of 2017 and directed him to take up investigation. He proved the endorsement along with signature of Inspector-In-Charge Debendranath Pingua marked as Ext.1/3 in the FIR (Ext.1). According to P.W.18, prior to registration of the case, one missing report was entered in the Station Diary vide SD Entry No.6 dated 14.01.2017. He proved the extract of the said SD Entry marked as Ext.13. The evidence of the Investigating Officer is that during course of examination, he examined the Informant and the scribe of the F.I.R., visited the spot on the same day, made inquest on the dead body of the deceased in presence of witnesses, prepared spot map and proved the inquest report and spot map marked as Ext.2 and Ext.20 respectively. The Investigating Officer deposed that he sent the dead body to Sub-Divisional Hospital, Champua for post-mortem examination, directed C/745 Duryodhan Mahant and C/638 Lipi Sahoo to guard the spot till arrival of scientific team and dog squad, and made requisition to Superintendent of Police, Keonjhar for sending scientific team and dog squad. He proved the requisition marked as Ext.11 and his signature on it marked as Ext. 11/1. This witness stated that on 15.01.2017, the scientific team and dog squad arrived at the spot and the Scientific Officer collected blood stained earth, sample earth, one pair of Hawai Chapal and one metallic ring from the spot and handed over to him which he seized. He proved the signature list marked as Ext.3 and his signature on it marked as Ext.3/2. P.W.18 stated that he seized the wearing apparels of the victim, two numbers of bangles, one pair of paunji, one mali, one red colour cotton thread, two numbers of sealed vials after collecting the same from hospital after post-mortem examination of the deceased. He proved the seizure list marked as Ext.12 and his signature on it marked as Ext.12/1. P.W.18 stated that he seized the wearing apparels of the victim, two numbers of bangles, one pair of paunji, one mali, one red colour cotton thread, two numbers of sealed vials after collecting the same from hospital after post-mortem examination of the deceased. He proved the seizure list marked as Ext.12 and his signature on it marked as Ext.12/1. He proved the said seized blue colour ladies pant of the deceased marked as M.O.I and pink colour dress of the deceased marked as M.O.II. He further stated that on 18.01.2017, he received post-mortem examination report from Sub-Divisional Hospital, Champua. He also stated that he tried to apprehend the accused Sunil Nayak, but he could not be traced till 20.01.2017 and on 20.01.2017 he got information about his presence in his house at village Sasanga, went there and apprehended the accused. According to P.W.18, on interrogation, the accused confessed his guilt. He recorded the confessional statement of the accused in presence of witnesses. He proved the confessional statement of the accused marked as Ext.4 and his signature on it marked as Ext.4/2. He further stated that the accused led himself and the witnesses to the place at village Sasanga where he had concealed his wearing apparels and in their presence, the accused recovered his sky colour half nikar having red white strips, one old red colour half ganji, one old green colour hero cycle from the straw heap within his house courtyard. He seized those articles in presence of the witnesses and prepared seizure lists. He proved the seizure lists marked as Ext.5 and Ext.6 and his signature thereon marked as Ext.5/3 and 6/3 respectively. He proved the said seized half nikar marked as M.O.III, seized ganji marked as M.O.IV, seized chapal marked as M.O.V, seized sample marked as M.O.VI, seized blood stained earth marked as M.O.VII, seized sealed vials marked as M.O.VIII and M.O.IX and seized metallic ring marked as M.O.X. P.W.18 further stated that on the same day he sent the accused for medical examination on requisition to Sub-Divisional Hospital, Champua and the same day he seized the biological samples of the accused after collecting the same from Sub-Divisional Hospital, Champua. He proved the requisition and seizure list marked as Ext.14 and Ext.15 respectively and the signature thereon marked as Ext.14/1 and 15/1 respectively. He proved the requisition and seizure list marked as Ext.14 and Ext.15 respectively and the signature thereon marked as Ext.14/1 and 15/1 respectively. This witness further stated that on 28.01.2017, he received the medical report of the accused and on 02.02.2017 he made a prayer before the court for sending the exhibits to SFSL, Rasulgarh, Bhubaneswar for chemical examination. He proved the letter containing his prayer and the copy of forwarding report marked as Ext.16 and 17 respectively and his signatures thereon marked as Ext.16/1 and Ext.17/2 respectively. He proved the CE report marked as Ext.18. The CE report reveals as follows: Ext.A Blood stained earth Blood stain of human origin is found. Ext.E Pant of the deceased Blood stain and Semen Stain of human origin are found Ext.F Banion of the accused Blood stain of human origin is found. Ext.1 Niker of the accused Blood stain of human origin is found The further evidence of the Investigating Officer is that on 08.03.2017 he seized the immunization register of Anganwadi Center of Sasang to ascertain the age of the deceased and after seizure, gave it to the zima of P.W.17. He proved the seizure list and zimanama marked as Ext.7 and Ext.8 respectively and his signatures thereon marked as Ext.7/2 and Ext.8/2 respectively. Thereafter, he gave the zima of the seized paunji, mali and red thread of the deceased to the Informant (father). He proved the zimanama marked as Ext.19 and his signature on it marked as Ext.19/1. The further evidence of P.W.18 is that on completion of investigation, he submitted the charge-sheet against the accused. This witness stated in his cross-examination that:- 'The accused was working under the Informant prior to the occurrence. The accused was in frequent visiting terms to the house of the Informant. The accused was also roaming the deceased on many occasions. The said School is about 300 to 350 meters away from the house of the deceased. His investigation reveals that the accused along with the deceased had gone to the field where the other boys were playing. That field and the School boundary is intervening by a pitch road of width about 200 feet.' 8. The accused (D.W.1) stated in his examination-in-chief that the Informant is his agnate. His investigation reveals that the accused along with the deceased had gone to the field where the other boys were playing. That field and the School boundary is intervening by a pitch road of width about 200 feet.' 8. The accused (D.W.1) stated in his examination-in-chief that the Informant is his agnate. He admitted in his evidence that he was working in the tractor of the Informant and he was in visiting term to the house of the Informant. D.W.1 stated that on the relevant day, he had taken the deceased for roaming in his cycle at 3.00 to 4.00 P.M. and on that day he left the deceased at their village Chhaka and saw from the Chhaka that the deceased had entered into their house. He further stated that till arrest he was in his house. In his crossexamination the accused D.W.1 stated that 'no one was present with him or at the Chhaka while he saw the deceased had entered into her house. No one had seen when the deceased was leaving with him at the Chhaka.' 9. On an analysis of the entire evidences on records, it is not disputed at this stage that the victim girl was a minor aged about 3 years at the time of the occurrence. It is also not disputed that she died of sexual assault. The doctors opinion is very clear in this regard that the death occurred due to forceful sexual penetration in the vagina resulting rupture and haemorrhage. 10. Mr. Milan Kanungo, learned Senior Advocate appearing as Amicus Curie had also not highlighted any point to disbelieve this aspect of the case. On the other hand, he had submitted that there is no evidence connecting the crime with the Appellant or that prosecution has established its case beyond all reasonable doubt. 11. Having gone through the materials on records, it is clear that the last seen theory has been established in this case. The evidences of P.Ws.1 and 7 are clear which have not been assailed in this case. Moreover, the Appellant himself admitted in his evidence recorded as D.W. 1 that on the fateful day, he took the victim girl on his bicycle for roaming and after sometime, as per his version, he left her near the Chhaka. 12. The evidences of P.Ws.1 and 7 are clear which have not been assailed in this case. Moreover, the Appellant himself admitted in his evidence recorded as D.W. 1 that on the fateful day, he took the victim girl on his bicycle for roaming and after sometime, as per his version, he left her near the Chhaka. 12. We are of the opinion that in that view of the matter the last seen of the deceased along with the Appellant has been brought home conclusively in this case. The second important aspect in this case is that the Appellant has admitted in his examination under Section 313 of the Code that on his discovery statement and leading to the place of concealment, his pant was recovered from a straw stack. It is settled principle of law that under Section 313 (4) of the Code, the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Thus, the statement of the Appellant/ Accused that his pant was recovered from a straw stack on his statement has been established in this case. Another piece of material is that on chemical examination, the pant of the deceased was found to be stained with blood stain and semen stain of human origin. Secondly, the banion of the Appellant/ Accused was also stained with human blood. Lastly, the niker of the Appellant/ Accused was also stained with human blood. The Appellant has not explained how blood stain and semen stain of human origin were found on chemical examination? 13. Mr. Kanungo, learned Senior Advocate appearing for the Condemned/ Prisoner as Amicus Curie submitted that the case of the prosecution should not be believed in this case, in view of the fact that the Investigating Agency did not take any appropriate steps for getting the biological sample collected from the dead body of the deceased and from the person of the Condemned/ Prisoner tested by DNA profiling. It is correct that the Investigating Agency has faulted in not getting the DNA profiling done in this case. 14. It is correct that the Investigating Agency has faulted in not getting the DNA profiling done in this case. 14. However, we are of the opinion that for the mistake committed by the Investigating Agency the case of the prosecution should not throw away, if the prosecution has otherwise proved its case. 15. Thus, keeping in view the fact that the last seen theory has been established, recovery of the wearing apparels of the accused has been established and there was blood stain on his wearing apparels which was not explained by the Condemned/ Prisoner, we are of the opinion that the same has formed a complete chain of events leading to the conclusion that it is the Condemned/ Prisoner who has committed the crime. 16. Coming to the question of sentence, we are of the opinion that death sentence has a unique aspect. It is irrevocable. In the cases based on circumstantial evidence, death sentence should be awarded only in case the prosecution has established its case by the evidence of such sterling quality that the Court is absolutely clear about his guilt. It should be for higher standard than the normal 'beyond reasonable doubt principle', as applied to criminal cases. 17. Hence, we are of the opinion that this is not a fit case to award death sentence. Mainly because of the laches of the Investigating Agency in not getting the DNA profiling carried out, the death sentence is not appropriate. However, keeping in view the fact that the Condemned/ Prisoner has committed a very gruesome offence of committing rape of a minor girl that led to her death, we considered it appropriate to convict the Condemned/ Prisoner to undergo imprisonment for life with a stipulation that for next 20 years the Condemned/ Prisoner shall not be given any parole, following the principles laid down by the Honble Supreme Court in the case of Swami Shraddananda @ Murali Manohar Mishra -vrs.- State of Karnataka, reported in (2008) 13 SCC 767 . Accordingly, we convert the conviction of the Condemned/ Prisoner to a conviction for imprisonment for life under Sections 302, 363, 376(2)(f), 376(2)(i) and 201 of the Penal Code and further direct that he shall not be given any pre-matured relief of release or that he shall not be given any parole for next 20 years. 18. Accordingly, we convert the conviction of the Condemned/ Prisoner to a conviction for imprisonment for life under Sections 302, 363, 376(2)(f), 376(2)(i) and 201 of the Penal Code and further direct that he shall not be given any pre-matured relief of release or that he shall not be given any parole for next 20 years. 18. With such observations, the DSREF is answered and the JCRLA is allowed in part.