IMPORTANT POINTS
Accused entitled to benefit of doubt unless facts are wholly inconsistent with his innocence.
Any circumstance not put to the accused in his examination under Section 313 Cr. P.C. cannot be used against him.
Abscondance does not necessarily make the accused guilty.
Omission of important facts affecting probability of the case is a relevant factor.

Judgment :

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order dated 23.4.2010, passed by the High Court of Guwahati in Criminal Appeal No. 13(J) of 2010 rejecting Death Reference No. 1 of 2010 made by the Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati on 21.12.2009 in Sessions Case No. 309(K) of 2009, convicting the appellant under Sections 376(2)(f) and 302 of the Indian Penal Code, 1860 (hereinafter referred to as `the IPC’), sentencing him to death. The High Court commuted the death sentence of the appellant to life imprisonment, with a direction that the appellant would breathe his last in jail, and that he would not be given the benefit of remissions etc. under Sections 432 and 433-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’).

2. Facts and circumstances giving rise to this appeal are that:

A. On 17.10.2007 at about 7.00 P.M., Sultana Begum Khatoon (PW.8), aged 12 years, was enjoying the celebrations of the festival of Durga Pooja alongwith her sister Sima Khatoon, aged 3 years, at the Nepali Mandir, Guwahati. The appellant was alleged to have been standing behind them at such time. After a shortwhile, Sultana Begum Khatoon (PW.8) noticed that her sister Sima Khatoon was missing, and she also happened to notice that the appellant had disappeared as well. Sultana Begum Khatoon (PW.8) thus began to look for her sister, and when she could not find her in the nearby areas, she went back to her house and informed her brother Gulzar Ali (PW.3) and her parents etc. of the said incident.

B. Apin Dulal (PW.1) and Gulzar Ali (PW.3) therefore began to search for Sima Khatoon, and while doing so, they came across the appellant and asked him whether he had seen Sima Khatoon. The appellant allegedly demanded a sum of Rs.20/- to pay for his evening food, in lieu of showing them the place where Sima Khatoon could be found. Apin Dulal (PW.1) agreed to pay him the said amount and thus, the appellant pointed to a place by the side of a municipal canal. Apin Dulal (PW.1) and Gulzar Ali (PW.3) thus began to approach the said place, and at such time, the appellant ran away and boarded a bus. Apin Dulal (PW.1) chased him and managed to catch hold of him, forcing him to get off the bus. Apin Dulal (PW.1) and Gulzar Ali (PW.3) thereafter succeeded in locating the girl, who they found gasping, wrapped in a jute-sack (gunny bag). The mouth of the bag had been closed. Sima Khatoon was alive, but in a critical condition. She was then taken by her brother Gulzar Ali (PW.3) to the house. The appellant was also taken there. Sima Khatoon was taken to a Nursing Home, and then to the Guwahati Medical College where she breathed her last at about 1.30 A.M. i.e., in the intervening night of 17/18.10.2007.

C. Father of the deceased Sima Khatoon approached the Paltan Bazar police station, where a report was endorsed only in the General Diary. After the death of Sima Khatoon, her father also lodged an FIR at the said police station on 18.10.2007. The appellant was taken to the police station by the relatives of Sima Khatoon, and he had thus been arrested on 17.10.2007 itself.

D. The post-mortem examination of the dead body of Sima Khatoon was conducted by Dr. Pradeep Thakuria, who found various injuries on her body, including an injury to her vagina. However, the doctor has stated that the vaginal smears taken had tested negative for spermatozoa.

E. The blood stained jute-sack in which the Sima Khatoon had been found, the blood stained underwear of the appellant, as well as the apparel i.e., frock of Sima Khatoon were taken into custody. It was noted that she was not wearing any undergarment at the said time. All the seized material objects were sent to the Forensic Science Laboratory, and the report received thereafter, revealed that the blood group of the blood found on the underwear of the appellant, was the same as the blood group of the victim, Sima Khatoon.

F. After the