IMPORTANT POINT
Where deceased a young girl aged about 11 years was last seen with accused in forest just a few hours before her murder after rape if accused failed to offer any explanation, his conviction suffered no illegality.

Headnote:(i) Indian Penal Code, 1860-Sections 376 and 302-Rape and murder of 11 years old school girl-Circumstance of victim child and appellant seen together last in the forest and body of victim deceased was found lying next day in a dilapidated building in jungle-Circumstances of case cast a heavy responsibility on appellant to explain and in absence thereof suffer conviction-No explanation offered and defence was of complete denial-Conviction was rightly recorded.
       Held : Learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman & Anr. vs. State of Assam [(2002) 6 SCC 715] for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts, of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m.. It is just about that much time that the appellant and deceased were last seen by PWl and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.PC.. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court. (Para 9)
       (ii) Indian Penal Code, 1860-Sections 302-defence admitted post-mortem report-It was not open to appellant to criticize recitals therein without an opportunity to doctor to explain it. (Para 7)
       (iii) Indian Penal Code, 1860-Sections 376 and 302-Rape and murder by strangulation of 11 years old VI Class school girl-Death sentence awarded by trial Court confirmed in appeal by High Court-Sustainability-Appellant was 20 years at the time of incident and was a student-No evidence that he will be a danger to society-No record of any previous heinous crime-Case did not fall in category of rarest of rare case-Death sentence modified to life imprisonment. (Para 10)

ORDER

The dead body of deceased, a young child aged about 11-12 years and student of VI standard, was first sighted by PW1 on 29th March, 2001 at about 3.45 p.m. Immediately, he reported the matter to the concerned police station. His oral report was recorded into writing, i.e. FIR Ex.No.28.

2. On Ex.28, it has been recorded that on 29th March, 2001, PW1 accompanied by Ajay PW11, had gone to the rear portion of a place known as Gaimukh for grazing she-buffaloes. One of the buffaloes went in a dilapidated building close-by. In order to drive out that animal on going inside, he noticed the dead body of a school girl in school uniform lying in supine condition. He informed the police. The two police officials came to the site along with him. The said unidentified girl was seen by him the previous day as well in the forest in the area where he usually goes for grazing of the animals. At that time she was in the company of a boy aged about 20 years. She was carrying school bag. At that time too, PW11 was with PW1. The description or the boy has also been given. The said boy was having with him bycycle like that of Ranger type. The boy on being asked gave his name as Gandhi and stated that the name of the accompanying girl is Vidya who was his sister and as her family members were going to come to Devi Temple, he had brought her directly from her school. Both were brought up to the road and went away by sitting on the bicycle. The girl seen by PW1 and PW11 was the same whose body had been found. The investigation led to the arrest of the appellant at 11.00 p.m. on 29th March, 2001.

3. The father of the deceased and the appellant work in same office. Deceased and the appellant knew each other. The appellant was charged and round guilty of offence under Section 302, IPC for the murder of the deceased as also for her rape under Section 376, IPC. The Sessions Court, for offence under Section 302 awarded death penalty and for offence under Section 376, rigorous imprisonment for 10 years. Compensation of Rs.25,000 in terms of the judgment of the Sessions Court was awarded under Section 357, Cr.PC for being paid to the parents of the victim for mental torture, agony and the loss sustained of their only female child.

4. The High Court by impugned judgment has confirmed the award of death penalty to the appellant as also other sentences and compensation awarded. The appellant aggrieved therefrom has approached this Court on grant of leave.

5. The facts which are fully established and have also not been disputed by the learned counsel for the appellant in brief may first be noticed. The appellant knew the deceased. His father and that of deceased were colleagues. The appellant at about 11.30 AM had gone to the house of the deceased on 28th March, 200 and had enquired about the deceased as deposed to by PW6, the elder brother of the deceased. PW6 told the appellant that the deceased had not come back from the school. In his statement under Section 313, CrPC the appellant admitted to have so gone to the house of the deceased. The lather of the deceased PW5 used to drop her daughter at the school and as usual on 28th March, 2001 at about 7.30 A.M. he dropped her at the school. She used to return home from school around 12.00 noon. Since on that date, she did not return, mother of the deceased informed her husband on telephone. He rushed back home from the office and they searched for their daughter and ultimately not finding her, a missing report was lodged by PW5.

6. On consideration of the oral and documentary evidence adduced by the prosecution, the Sessions Court held the appellant guilty. The High Court on detailed and critical examination of evidence has upheld the conviction and sentence awarded by the Sessions Court. Reliance has been placed, inter alia, on Post-mortem report -Ex.57 and recovery articles such as match box used for burning the school bag, bycycle etc. Out of the deposition of the

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2003 Supreme(SC) 724

IMPORTANT POINTWhere deceased a young girl aged about 11 years was last seen with accused in forest just a few hours before her murder after rape if accused failed to offer any explanation, his conviction suffered no illegality.

Cases Referred (1)

IMPORTANT POINT
Where deceased a young girl aged about 11 years was last seen with accused in forest just a few hours before her murder after rape if accused failed to offer any explanation, his conviction suffered no illegality.