The State of Jharkhand v. Indar Oraon

Judgment

1. Heard learned counsel for the appellant, facing the death sentence, and learned counsel for the State, in the death reference. 1

2. As this death reference and the instant appeal arise out of the common Judgment of conviction and Order of sentence, they were heard together and are being disposed of by this common Judgment.

3. This death reference and the connected Criminal Appeal arise out of the impugned Judgment of conviction dated

09.01.2025 and Order of sentence dated 10.01.2025 passed by learned Additional and Sessions Judge-I-cum-Special Judge (POCSO Act), Lohardaga, in Special POCSO Case No.09/2023 whereby, the sole appellant Indar Oraon has been found guilty and convicted for the offences under Sections 302 of the Indian Penal Code and Section 6 of the POCSO Act. Upon hearing on the point of sentence, the appellant Indar Oraon 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 his death. He has further been sentenced to R.I. of Life imprisonment (remainder of natural life) and fine of Rs. 25,000/- (Twenty Five Thousand) for offence u/s 6 POCSO Act. In the event of default of payment of fine, he shall undergo S.I. of One month. Aggrieved by the said Judgment of Conviction and Order of sentence, the appellant has preferred the present appeal, whereas the death reference is made by the learned Trial 2 Court for confirmation of the death sentence imposed upon the sole appellant, namely Indar Oraon. Factual Matrix

4. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as :- The case of the prosecution is that on 24.12.2022 at

3.00 O'clock the informant alongwith her younger daughter (victim/deceased aged about 5 years) visited towards roof of Anganbari for getting the paddy crop parched. In the meanwhile, her daughter rushed out from there and started playing with other children. Accused Indar Oraon aged about 25 years visited there and offered 5 rupees to each children and on the other hand her daughter was offered 50 rupees by the accused Indar Oraon. Accused Indar Oraon wandered alongwith her daughter. At 4.35 O'clock when she returned home, her daughter was found to be missing. She inquired whereabout of her daughter from Indar Oraon accused. She on suspicion apprehended accused but accused Indar Oraon strove hard to stifle her in the court yard of Fuldeo. 3 In the meanwhile, Sukhmaniya Oraon and Heeramuni Oraon rushed there and informed her that her daughter was lying dead. Then Indar Oraon started fleeing from the spot but he was apprehended by the people who divulged that he attempted to ravish the victim/deceased behind the house of Tewasi Oraon during which victim/deceased squealed and in the said course he stifled her neck causing her death. It has been indicted that Indar Oraon killed the victim/deceased when he attempted to ravish her. It has been also alleged that Indar Oraon was having criminal history of killing her grand-mother and in this connection earlier a case was instituted in Bagru Police Station. Thereafter the matter was reported to the Bagru Police Station for institution of F.I.R. On the written report of informant, this case was instituted vide Bagru P.S. Case No. 33/2022 dated

24.12.2022 for the offences u/s 302, 376(2)(f) of I.P.C. and Section 6 POCSO Act.

5. After investigation Police submitted charge-sheet against the accused /appellant for the offences U/s 302, 376(2)(f) I.P.C. and Section 6 POCSO Act.

6. On 23.02.2023, cognizance was taken against accused/appellant for the offences U/s 302, 376(2)(f) IPC and Section 6 POCSO Act. 4

7. Accordingly, charges U/s 376(2)(f), 302 IPC and Section 6 POCSO Act were framed against the appellant which was read and explained to him to which he pleaded not guilty and claimed to be tried.

8. In order to establish charges levelled against accused person, prosecution examined altogether 17 witnesses which are as follows: PW-1 Mehrani Orain PW-2 Sukhmaniya Oraon PW-3 Rajmuni Oraon PW-4 Mrs. X (Informant) PW-5 Bipasa Oraon PW-6 Khushboo Kumari PW-7 Bablu Oraon PW-8 Sudhir Oraon PW-9 Priti Oraon PW-10 Sunil Oraon PW-11 Biyas Sahu PW-12 Sulendra Sahu PW-13 Dr. Anand Kumar PW-14 Dr. Ajay Kumar Bhagat PW-15 Kiran Pandit PW-16 Vishwajit Kumar Singh (I.O.) PW-17 Pankaj Kumar Sharma (I.O.) 5

9. The Defence has not examined any witness in support of his case.

10. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused/appellant found the charges levelled against the appellant proved beyond all reasonable doubts.

11. Accordingly, the appellant had been found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code and Section 6 of the POCSO Act.

12. The aforesaid order of conviction and sentence is subject matter of instant appeal. Submission of the learned counsel for the appellant:

13. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the trial court cannot be sustained in the eyes of law.

14. The following grounds have been taken by the learned counsel for the appellant in assailing the impugned judgment of conviction: - (i) The impugned judgment of conviction and sentence has been passed mechanically and without appreciating the evidence available on record and without taking into consideration the 6 evidences in its right perspective, thereby arriving at erroneous conclusion. (ii) The impugned judgment is not sustainable either on facts or in the eyes of law and is fit to be set aside as the same has been passed on conjectures, surmises and suspicion. (iii)

The learned Trial Court has failed to appreciate the fact that the version of PW-1-Mehrani Orain and PW-2-Sukhmaniya Oraon did not inculpate the Appellant with certainty and did not prove the case of the prosecution beyond reasonable doubt. (iv) The learned Trial Court has failed to appreciate that PW-3- Rajmuni Oraon was merely a witness who had seen the dead body and she is not the witness of alleged occurrence. Further, the PW-3's version of seizure also casts a serious doubt on the factum of seizure. (v) The learned Trial Court has failed to appreciate that there was improvement in the deposition of the PW-4- informant in the trial as compared to her version in the FIR thereby casting a serious doubt on her testimony. (vi) Learned Trial Court has failed to appreciate that the evidence of PW-5 Bipasa Oraon, PW-6 Khushboo Kumari and PW-9 Priti Oraon were 7 merely of the nature of 'last seen' and did not further the case of the prosecution as regard the alleged occurrence. Further, the learned Trial Court did not record proper satisfaction that these witnesses being child witnesses were competent to understand the facts and circumstances of the matter. (vii) The learned Trial Court has failed to appreciate that the purported confession made by the Appellant before the PW-7 Bablu Oraon was made 'Sadri' language which the witness has expressed inability to understand in his cross- examination and hence the entire prosecution version of Appellant's extra-judicial confession stood demolished. (viii) The learned Trial Court has failed to appreciate that the PW-8 has specifically stated in his cross- examination that he had not witness the alleged occurrence as he was at his home. (ix) The learned Trial Court has failed to appreciate that the evidence of the PW-10, 11 and 12 was in the nature of hearsay and hence did not further the case of the prosecution. (x) The learned Trial Court has failed to appreciate that the prosecution had failed to examine Prof. 8 Dr. Chandrashekhar Prasad under whose supervision the post-mortem of the deceased was conducted, as specifically deposed by PW-13 in his cross-examination. (xi) The learned Trial Court has failed to appreciate that the PW-15 Kiran Pandit in her cross- examination has specifically stated inquest report does not specifically state that the dead body was found from near the house of Tewasi Oraon. (xii) The learned Trial Court has failed to appreciate the fact that there is no eye witness to the alleged occurrence and that the prosecution failed to examine several material witnesses in order to unearth the truth of the matter. (xiii) The learned Trial Court has failed to take into consideration that the prosecution was unable to establish the time of death of the deceased with precision thereby casting a serious doubt on the entire case of the prosecution. (xiv) The learned Trial Court has failed to take into consideration that the forensic report completely negated the involvement of the Appellant in the alleged crime since there was no DNA match of the Appellant with any of the seized materials. 9 (xv) The learned Trial Court has failed to take into consideration that the case was of circumstantial evidence however none of chain of circumstances were complete so as to give rise to an irrefutable inference that the alleged crime has been committed by the Appellant. (xvi) The learned Trial Court has failed to take into consideration that the last-seen version put forth by the prosecution was extremely faint and could not be construed as incriminating material against the Appellant. (xvii) The learned Trial Court has failed to take into consideration the medical and forensic evidence did not corroborate the prosecution case. (xviii) The learned Trial Court has failed to take into consideration that the extra-judicial confession of the Appellant was not at all corroborated by any other evidence led by the prosecution. (xix) The learned Trial Court has miserably failed to take into consideration that there are several inconsistencies, improvement and contradictions in the evidence of prosecution witnesses, which cast a serious doubt on the entire case of the prosecution. 10 (xx) The learned Trial Court has failed to properly appreciate the statement of the Appellants recorded u/s 351 of the BNSS. (xxi) The prosecution has not been able to prove the charges leveled against the accused persons beyond shadow of all reasonable doubt. (xxii) The prosecution has failed to establish any motive of the Appellant for committing the alleged offence. (xxiii) The learned Trial Court has failed to take into consideration that the entire investigation was conducted in hot-haste by the police. (xxiv) The learned Trial Court has failed to take into consideration the principle that if offence is proved by circumstantial evidence ordinarily death penalty should not be awarded and no 'special reason' has been recorded by the learned court below which makes awarding of death penalty imperative. (xxv) The learned Trial Court has failed to apply and balance aggravating circumstances with mitigating circumstances while awarding death penalty to the Appellant and has also failed to take consideration that the Appellant is a young person. (xxvi) The learned Trial Court has failed to take into consideration that even if it is held that the prosecution has been able to prove its case beyond 11 reasonable doubt, still the instant case is not 'rarest of rare case warranting imposition of death penalty. (xxvii) The learned Trial Court has miserably failed to record a finding that the Appellant was beyond any reforms and that the death penalty was the only option in the facts and circumstances of the case and that alternative option of a lesser punishment is unquestionably foreclosed. (xxviii) Learned counsel, accordingly, submitted that there being only circumstantial evidence against 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 appellant ought to have been given at least the benefits of doubt.

15. The learned counsel for the appellant, based upon the aforesaid grounds, has submitted that, therefore, it is a case where the judgment of conviction and order of sentence is fit to be interfered with. Submission of the learned counsel/P.P for the state:

16. Per contra, Mr. Pankaj Kumar, learned Public Prosecutor appearing for the State, has submitted by taking the following grounds in defending the impugned judgment: 12 (i) 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 (ii) Learned State counsel while 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 (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. 13 (iii) 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. (iv) 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. (v) 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, 14 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.

17. Learned counsel for the State, based upon the aforesaid pronouncements, has submitted that the impugned judgement needs no interference. Response of the learned counsel for the appellant

18. Learned counsel appearing for the appellant, response, 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.

19. Learned counsel for the appellant, in support of his contention, 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 but the Hon’ble 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, and confirmed by the High Court, were commuted to life imprisonment. 15

20. 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.

21. 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.

22. It has also been submitted that the Trial Court has not given any finding as to a possible rehabilitation and reformation of the accused/appellant and in absence of such finding, the death sentence awarded by the Trial Court cannot be sustained in the eyes of law. 16 Analysis

23. We have heard learned counsel for the parties and appreciated their arguments.

24. The issues which require consideration based upon the argument advanced on behalf of the parties are – (i) whether prosecution has been able to prove charges levelled against accused person/appellant beyond all reasonable doubt or not (ii) Whether the case in hand comes under the purview of rarest of rare cases? (iii) Whether there is no alternative but to impose death sentence in the facts and circumstances of the case?

25. Since all the issues are interlinked and, as such, all are being taken up together for its consideration. But, before considering the same, background of the initiation of the case right from the day of institution of F.I.R. and evidence led on behalf of the prosecution and the statement recorded under Section 313 Cr.P.C. need to be referred herein :- The case of the prosecution is that on 24.12.2022 at

3.00 O'clock the informant alongwith her younger daughter (victim/deceased aged about 5 years) visited towards roof of Anganbari for getting the paddy crop parched. In the meanwhile, her daughter rushed out from there and started playing with other children. Accused Indar Oraon aged about 25 years visited there and offered 5 rupees to each 17 child and on the other hand her daughter was offered 50 rupees by the accused Indar Oraon. Accused Indar Oraon wandered alongwith her daughter. At 4.35 O'clock when she returned home, her daughter was found to be missing. She inquired whereabout of her daughter from Indar Oraon accused. She on suspicion apprehended accused but accused Indar Oraon strove hard to stifle her in the court yard of Fuldeo. In the meanwhile, Sukhmaniya Oraon and Heeramuni Oraon rushed there and informed her that her daughter was lying dead. Then Indar Oraon started fleeing from the spot but he was apprehended by the people who divulged that he attempted to ravish the victim/deceased behind the house of Tewasi Oraon during which victim/deceased squealed and in the said course he stifled her neck causing her death. It has been alleged that Indar Oraon killed the victim/deceased when he attempted to ravish her. It has been also alleged that Indar Oraon was having criminal history of killing her grand-mother and in this connection earlier a case was instituted in Bagru Police Station. Thereafter the matter was reported to the Bagru Police Station for institution of F.I.R.

26. On the basis of the written report of informant, this case was instituted for the offences u/s 302, 376(2)(f) of I.P.C. and 18 Section 6 POCSO Act and accordingly, the cognizance of the offences was taken against accused/appellant Indar Oraon charges were framed for the offences U/s 302, 376(2)(f) IPC and Section 6 POCSO Act and accordingly trial procedded.

27. In course of trial, the prosecution has examined altogether 17 witnesses. Their depositions are being referred herein :- P.W. 1 is Mehrani Orain. She deposed that occurrence took place seven months ago on Saturday. It was 5.30 PM. At that time, she was bringing mud to her house from the field. In the meanwhile, she noticed that Indar Oraon dragged the victim inside the bathroom and bolted the bathroom. After sometime he rushed out from bathroom with having child (victim/deceased) in his hand and laid the said child beneath flowering plant. He also shrouded the said child by sack and eloped from the spot. Then she screamed. Villagers gathered there and it was traced out that the said child was dead. Villagers apprehended Indar Oraon. Prior to the alleged occurrence Indar Oraon had killed her grand-mother. She identified the accused Indar Oraon present in the court room through Video Conferencing. In cross-examination, at paragraph-5 she has stated that when she was bringing mud at her house then she noticed that the accused was loitering with deceased/victim. 19 She did not notice as to what was done with the victim/deceased inside the bathroom. P.W. 2 is Sukhmaniya Oraon. She deposed that alleged occurrence took place 6-7 months ago. At 4.00 PM Indar Oraon was seen loitering with the victim/deceased. Thereafter she heard the screaming sound of Mehrani (PW 1) and noticed that the said victim child was lying dead beneath the plant of Marigold. Indar Oraon had killed her. Police rushed there and seized rice sack and small piece of cement plaster from the alleged place of occurrence. Seizure list was prepared upon which she provided her thumb impression. She identified the accused Indar Oraon present in the court room through Video Conferencing. During cross-examination she asserted that she has not witnessed the alleged occurrence. P.W. 3 is Rajmuni Oraon. She deposed that alleged occurrence took place on 24.12.2022. In the evening when she rushed to bathroom to wash her legs then she noticed that the informant's daughter (victim/deceased) was lying dead there. Thereafter she raised alarm. The dead body was lying shrouded by sack beneath marigold plant situated outside the alleged said bathroom. On hulla Hiramuni and Sukhmaniya rushed there who informed the informant regarding the said matter. Police also rushed on the spot. Informant inquired the matter from the Indar then he started to elope. Sudhir and 20 Bablu apprehended him. Police seized bloodstained rice sack and cement plaster. Seizure list was prepared which bears her signature. She proved her signature thereon as Ext. P-1. She identified the accused Indar Oraon present in the court room through Video Conferencing. During cross-examination she asserted that she noticed the dead body of child lying there. The dead body was shrouded with sack. P.W. 4 is Mrs. X (victim's mother-cum-informant). She deposed that occurrence took place on 24.12.2022. Her daughter was playing with her friends. She was indulged in some cultivation work and when she returned home at 4.30 PM, her daughter was found to be missing. Then she inquired the whereabout of her daughter from her daughter's friends. They divulged to her that Indar Oraon provided them 20 rupees and he also provided 50 rupees to the deceased/victim. They also narrated to her that they rushed towards shop for biscuit and chocolate while Indar was loitering with the deceased/victim. Frantic search was made by her then she rushed towards chowk where she came across Indar Oraon who was eating chowmin there. When she inquired the matter from Indar then Indar Oraon started trembling and the chowmin plate fell down on ground. Sukhmaniya and Hiramani visited there who unfolded to her that her daughter was lying behind the bathroom of Dewasi Oraon. Indar Oraon 21 strove hard to elope from there but Sudhir Oraon and Bablu Oraon apprehended Indar after chase who confessed before the villagers that he stifled the deceased/victim after committing rape upon her in the bathroom of Dewasi Oraon. Police visited there. There was scratch mark over the cheek of deceased/victim. There was strangulation mark over the neck of the deceased/victim. Deceased/victim was of five years and two months at the time of alleged occurrence. Blood also exuded from the private part of deceased/victim. Then she instituted this case. She proved the said written report as Ext. P-2. Postmortem was done at RIMS Ranchi. Accused had also earlier committed the murder of his grand-mother. She identified the accused Indar Oraon present in the court room through Video Conferencing. During cross-examination, at paragraph 16, she has stated that she did not notice Indar enticing her daughter away. Children playing along with her daughter narrated to her that Indar caused them to visit the shop and, in the meanwhile, he was seen to be loitering with her daughter. During para no. 17 of cross-examination, she asserted that she did not notice accused offering money to the children. P.W. 5 is Bipasa Oraon. This witness is aged about 8 years. She deposed that she was the student of class IV and the alleged occurrence took place seven months ago. She had returned from her school at 3.00 PM. Thereafter she, Priti, 22 Khushboo and deceased/victim were playing in court yard. Indar rushed on the spot and he provided 20 rupees to them. He also provided 50 rupees to the deceased/victim. He also caused her and her friends to go outside to have some refreshment. He clasped the deceased/victim due to which deceased/victim could not accompany her. Thereafter she rushed to the shop to have chocolate and biscuit. When she returned from the shop then deceased/victim and accused Indar were not present there. When they were going home then the mother of deceased/victim asked whereabout of her daughter then she narrated that Indar was loitering with her. One lady visited towards her washroom then she noticed the dead body of deceased/victim was lying there shrouded with sack. She noticed that blood percolated from her mouth and 50 rupees note was lying in her hand. She came to have learnt that Indar slayed her. She identified the accused Indar Oraon present in the court room through Video Conferencing. During cross-examination, she has stated at paragraph 11 that she took 20 rupees from Indar and rushed towards shop. After half an hour she returned from shop. In para no. 14 she has also stated that when she was going to the shop then deceased was along with Indar. P.W. 6 is Khushboo Kumari. This witness is aged about 11 years old. She deposed that she was the student of class IV and the alleged occurrence took place seven months 23 ago. She had returned from her school at 3.00 PM. Thereafter she, Priti, Bipasa and deceased/victim were playing in court yard. Indar rushed on the spot and he provided 20 rupees to them. He also provided 50 rupees to the deceased/victim. He also caused her and her friends to go outside to have some sweets. He asked deceased/victim to stay with him and let her friends to visit the shop. Thereafter she along with her friends (except deceased/victim) rushed to the shop. When she along with her friends returned from the shop then they found deceased/victim and accused Indar missing from the said court yard. She narrated to the deceased's mother about loitering of deceased/victim with accused Indar. She came to have learnt that Indar slayed deceased/victim in the bathroom covering her dead body behind the bathroom by cement sack. She identified the accused Indar Oraon present in the court room through Video Conferencing. In her cross-examination, she has stated at paragraph 13 that Indar on the alleged date of occurrence offered money to her. P.W. 7 is Bablu Oraon. He deposed that occurrence took place on 24.12.2022. During that time, he was at his house then he heard some hulla. He rushed out and noticed the over crowd-ness near the Areya Chowmin Shop. Indar Oraon strove hard to elope from there but on the hulla of villagers he apprehended Indar Oraon. Villagers also thronged 24 there. Indar Oraon narrated to them that he stifled the deceased/victim after committing rape upon her and also unravelled to them that he shrouded the body of victim by sack near flower plant situated at the bathroom of Tewasi Oraon. On this disclosure he along with villagers rushed on the spot and found the dead body of victim lying there. He identified the accused Indar Oraon present in the court room through Video Conferencing. In his cross-examination, he has stated at paragraph 5 that he had not witnessed the alleged occurrence rather he rushed to the spot after the completion of alleged occurrence. Indar was apprehended by him and Sudhir. Villagers also thronged there. The language used by the accused in course of disclosure was Sadri. No material contradictions could be extracted by the defence. P.W. 8 is Sudhir Oraon. He deposed that occurrence took place on 24.12.2022. He heard some hulla emanating from Areya Chowk. He rushed towards there. People crowded at the chowmin shop. He noticed that informant was asking whereabout of her daughter from Indar Oraon. Indar Oraon was puzzled and chowmin plate fell down from his hand. In the meanwhile Hiramani and Sukhmaniya visited there, who narrated to the informant that her daughter was found to be dead near the bathroom of Tewasi Oraon. Indar Oraon strove hard to elope from there. Then he and Bablu Oraon 25 apprehended Indar Oraon after chase. Indar Oraon unravelled to them that he stifled the deceased/victim after committing rape upon her and also disclosed to them that he shrouded the body of victim by sack near flower plant situated at the bathroom of Tewasi Oraon. On this disclosure he along with villagers rushed on the spot and found the dead body of victim lying there. He also noticed nail and hand impression over the neck of deceased/victim. He identified the accused Indar Oraon present in the court room through Video Conferencing. During cross-examination he has deposed that he has not witnessed the alleged occurrence. He and Bablu Oraon apprehended the accused Indar Oraon. P.W. 9 is Priti Oraon. This witness is aged about 06 years. She deposed that she was the student of class II and asserted that on the alleged date of occurrence she along with Khushboo, Bipasa and deceased/victim was playing in court yard. Indar rushed on the spot and he provided 20 rupees to them. He also provided 50 rupees to the deceased/victim. He also caused her and her friends to go outside to have biscuit. He ushered deceased/victim along with him. Informant asked whereabout of her daughter then she narrated to her that the deceased/victim was with Indar. Indar deceased/victim towards the bathroom of Gabbar Oraon. Indar slayed the victim and concealed her body behind 26 bathroom. She identified the accused Indar Oraon present in the court room. In her cross-examination, she has deposed that she was given 20 rupees and she rushed to the shop to have some biscuit. Her friend (deceased/victim) was along with Indar at that time. They returned back after having biscuit then she noticed that deceased/victim was not present there. P.W. 10 is Sunil Oraon. He deposed that occurrence took place on 24.12.2022. In the evening the deceased/victim was found to be traceless to whom his sister-in-law was searching. After some time, he heard some hulla. He rushed there and noticed that the dead body of deceased/victim was lying beneath the marigold plant situated near the bathroom of Tewasi Oraon and the same was draped by sack. Indar Oraon killed the deceased/victim. He along with other apprehended Indar Oraon and consigned him to the Police. In this matter a Panchayati was also held in the village. He also proved his signature present over the resolution of the Panchayat as Ext. P-3. He identified the accused Indar Oraon present in the court room. At paragraph 16 of cross-examination, he asserted that he has not noticed accused enticing deceased/victim. P.W. 11 is Biyas Sahu. He deposed that occurrence took place on 24.12.2022. At that time, he was at Jogiya 27 Chowk. He heard hulla and noticed that informant was asking whereabout of her daughter from Indar. In the meanwhile, Hiramani and Sukhmaniya visited there, who narrated to the informant that her daughter was found to be dead near the bathroom of Tewasi Oraon. The matter was inquired from Indar Oraon then Indar Oraon unravelled to them that he stifled the deceased/victim after committing rape upon her and also disclosed to them that he shrouded the body of victim by sack near marigold flower. On this disclosure he rushed on the spot and found the dead body of victim lying there. In this matter a Panchayati was also held in the village. He also proved his signature present over the resolution of the Panchayat as Ext. P-4. He identified the accused Indar Oraon present in the court room. During cross-examination he has deposed that he has not witnessed the alleged occurrence. P.W. 12 is Sulendra Sahu. He deposed that occurrence took place on 24.12.2022. It was 5.00 O'clock in evening. He heard some hulla and rushed out from his house and visited towards chowmin shop at Jogiya Chowk. Accused Indar was taking chowmin. In the meanwhile, informant asked whereabout of her daughter from Indar. The chowmin plate fell down on the ground from the hands of Indar. In the meanwhile, Sukhmania and another lady visited there, who narrated to her that her daughter was lying dead near the 28 bathroom of Tewasi. In the meanwhile, accused strove hard to elope from there but he was apprehended by Sudhir and Bablu Oraon. Villagers also thronged there. Indar, on being inquired, unfolded that he stifled the deceased/victim after committing rape upon her and also disclosed to them that he shrouded the body of victim by sack near marigold flower. On this disclosure he rushed on the spot and found the dead body of victim lying there. He identified the accused Indar Oraon present in the court room. During cross-examination, at paragraph 5 he has deposed that he has not witnessed the alleged occurrence of Murder and Rape of the deceased. P.W. 13 - Dr. Anand Kumar. He conducted postmortem examination alongwith Dr. Ajay Kumar Bhagat on the dead body of victim on 25.12.2022 and as per postmortem report following observations were noticed by the P.W. 13 which are as follows:- (i) The body was of average built. (ii) Rigor mortise was present in eye lids, muscles of face, lower jaw, neck, upper limbs, fingers, muscles of chest and abdomen, lower limbs and toes. Abdomen was slightly distended. (iii) Nails were cyanosed. Face was deeply congested. Facial petechial haemorrhages were present. Scleral haemorrhages and multiple petechial haemorrhages 29 were present in the bulbar as well as palpebral conjunctiva of both eyes. Froth was present at nostrils. Face and cloths were stained with dry blood. Inner thighs, vulva and perianal areas were also stained with dry blood. Abrasions (bright red in colour/fresh) (i) Multiple abrasions, 16 in number, varying in shape from being linear, semilunar and curvilinear, ranging in size from 0.5 cm x 0.25 cm to 4cm x 1 cm over middle part of anterior aspect of neck. (ii) 2cm x 2cm over middle part of left cheek. (iii) 2cm x 1cm over left side of chin. (iv) 1.5cm x 1cm over anteromedial aspect of left elbow. Bruises (reddish in colour/fresh) (i) Multiple discoid bruises of size 1cm to 2cm, with several larger areas of confluent bruising over middle part of anterior aspect of neck (ii) 5cm x 2cm over lower part of right cheek and adjacent chin (iii) 2cm x 1.5cm over anterior aspect of upper part of neck. (iv) Multiple discoid bruises of size 1cm to 2cm over inner side of thighs 30 Internal (i) Diffuse areas of bruise on the inner surface of both lips. (ii) Diffuse contusion of subcutaneous tissues of neck, platysma, sternocleidomastoid, sternohyoid and omohyoid muscles of neck and thyroid capsules. These were torn at places with extravasation and infiltration of blood and blood clots at the site of injuries. (iii) Fracture of left greater horn of hyoid bone with extravasation of blood in and around the margins of fracture. (iv) Mucosal hemorrhages in the interior of larynx. (v) Hematoma measuring 2.5cm x 0.5cm present over posterior surface of trachea. (vi) Diffuse contusion of anterior and middle scalene muscles of neck with extravasation and infiltration of blood and blood clots in the muscles tissues. (vii) Multiple subpleural and epicardial petechial hemorrhages. (viii) Diffuse contusion of soft tissue of vulval labia, vaginal introitus, perianal and anus, that is over dilated. 31 (ix) Circumferential tear of hymen at multiple places laceration of posterior fourchette, with presence of blood and blood clots in the vaginal introitus. (x) Diffuse contusion of uterus with presence of blood and blood clots in the uterine cavity. (xi) Laceration of margins of anus, with presence of longitudinal tear extending from right anal margin to the right lateral wall of anal canal, with presence of blood and blood clots in the anal canal and perianal areas. (xii) There was evidence of vital reaction at the site of injuries Opinion (i) The above noted injuries were antemortem in nature caused by hard and blunt object(s). (ii) Death was due to asphyxia as a result of manual strangulation. (iii) Time elapse since death was 12 hours to 36 hours from the time of postmortem examination. (iv) The deceased had been sexually assaulted by hard and blunt object(s), with evidence of forceful vaginal and anal penetration. 32 (v) The viscera had been kept preserved. The I.O. was directed to collect and submit the preserved viscera to SFSL for chemical analysis P.W. 14 is Dr. Ajay Kumar Bhagat. He conducted postmortem examination alongwith Dr. Anand Kumar (PW 13) on the dead body of victim on 25.12.2022 and proved his signature and seal as Ext. P-6 on the same postmortem report of victim. P.W. 15 is Kiran Pandit. She deposed that on

24.12.2022 he was posted as Officer-in-charge of Mahila Police Station, Lohardaga. On that day, an information of murder and ravishment of a child was received then she visited Areya village under Bagru Police Station and prepared inquest report. She proved carbon copy of inquest report as Ext. P-8. It also bears the signature and thumb impression of witnesses namely Tara Oraon and Sukhmaniya Oraon (P.W.2). During cross examination she has deposed that there is no depiction of recovery of dead body from the vicinity of the house of Tewasi Oraon in inquest report. She did not record the statement of witnesses. P.W. 16 is Vishwajit Kumar Singh, who is the I.O. of this case. He has deposed that on 24.12.2022 he received an information on 17.15 Hours of a murder of a child at village Areya within Bagru cemented plaster-floor. Blood stained rice sack was also recovered Police Station. On this information he 33 along with other Police Officials departed to the village Areya for the verification. He was also accompanied by then Mahila Police Station Officer-in-charge S.I. Kiran Pandit. Thereafter inquest report was prepared and the dead body was sent to the Sadar Hospital for postmortem. But postmortem could not be conducted at Sadar Hospital thereafter the dead body was sent to RIMS, Ranchi. He also collected the garments worn by the deceased in sealed condition provided by the doctors conducting postmortem. Thereafter on the written report of the informant, he registered this case as Bagru P.S. case no. 33/2022 and started investigation. He proved endorsement over written report as Ext. P-9. He also proved Formal FIR as Ext. P-10. He also recorded the re-statement of the informant and recorded the statements of Rajmuni Oraon, Sukhmaniya Oraon, Mehrani Oraon, Bablu Oraon, Sudhir Oraon, Sunil Oraon, Bipasa Oraon, Khushboo Kumari, Priti Kumari, Biyas Sahu, Sulendra Sahu in course of investigation. He also deposed whatever he did during investigation i.e. recording of statement of witnesses u/s 161 Cr.P.C. affirming the place of occurrence etc. The alleged place of occurrence is the secluded place nearby Marigold Plant situated near the bathroom of Tewasi Oraon at village Areya, Bagru. Blood stained mark was traced out over the from the alleged place of occurrence. He seized piece of Blood stained cemented plastered-floor and prepared seizure list. He proved the said seizure list as Ext. P- 34

11. He also procured the criminal history of accused and detected that the accused Indar Oraon was also an accused in Bagru P.S. 11/2021 with having indictment of killing his grand-mother. He also procured postmortem report. He also gleaned vaginal swab of deceased, nail clipping and dried blood sample in sealed condition. Thereafter he was transferred on 03.02.2023. During cross examination he has deposed that accused was consigned by villagers into Police custody nearby the alleged place of occurrence. The alleged place of occurrence is the area adjacent to the bathroom of the house of Tewasi Oraon situated in village Areya. The dead body of the deceased was found 10 feet away from the house of Sumit Oraon. Para no. 29 of cross-examination of PW 16 stated that there was no ocular witness of alleged occurrence. He got the seized material sealed at the alleged place of occurrence. P.W. 17 is Pankaj Kumar Sharma. On 03.02.2023 he was posted as Officer-in-charge of Bagru Police Station and took the charge of remaining investigation of Bagru P.S. case no. 33/2022. He sent seized exhibit materials and blood sample of accused to SFSL, Ranchi for examination. He also recorded the statement of S.I. Kiran Pandit. Thereafter he submitted charge-sheet no. 07/2023 dated 22.02.2023 against accused Indar Oraon. 35 During cross examination he has deposed that the seized materials were in sealed condition. He did not put any signature over the sealed materials.

28. The learned trial court has accepted the version of the prosecution and convicted the appellants under Section Sections 302 of the Indian Penal Code and Section 6 of the POCSO Act and sentenced him 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 his death. He is also sentenced to undergo R.I. for life for the offence under Section 6 of the POCSO Act, which is the subject matter of the present appeal.

29. Admittedly in this case as per the version of I.O. (PW 16), no ocular witness was traced out in course of investigation to vindicate the alleged occurrence of ravishment and murder of the deceased/victim by the hands of accused Indar Oraon. In such situation the prosecution case rests upon circumstantial evidence.

30. Thus, before venturing to the merit of the case it would be apt to discuss herein the settled proposition of law on the issue of circumstantial evidence based up the last seen theory.

31. The Hon'ble Apex Court in the year 1952, in the judgment rendered in Hanumant Son of Govind Nargundkar vs. State of Madhya Pradesh [AIR 1952 SC 343] has laid down the parameters under which, the case of circumstantial 36 evidence is to be evaluated, which suggests that: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ......"

32. The judgment referred in Hanumant (supra) has been consistently followed by Hon'ble Apex Court in the judgment rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC 198]; Ram Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and Sharad Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC 116 and also in Musheer Khan alias Badshah Khan & Anr. Vs. State of Madhya Pradesh [(2010) 2 SCC 748.

33. The Hon'ble Apex Court in Musheer Khan (Supra) while discussing the nature of circumstantial evidence and the 37 burden of proof of prosecution has held as under paragraph nos. 39 to 46 as under: "39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.

40.Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] )

42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. 38 Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.)

43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.

44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio