The death sentence is not warranted in the facts and circumstances of the case.

(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)

I. A. Ansari & S.P. Singh, JJ. Under challenge, in the present appeal, are the judgment, dated 01.10.2013, passed, in Sessions Trial No.440 of 2013, by learned Sessions Judge, Jamui, and the order, dated 19.10.2013, whereby sentence has been imposed on the accused-appellant.

2. By the impugned judgment, learned trial Court has convicted the accused-appellant under Sections 376 and 302 of the Indian Penal Code and also under Sections 4, 6, 8 and 10 of the Prevention of Children from Sexual Offences Act, 2012. Following his conviction under Section 302 of the Indian Penal Code, the accused-appellant has been sentenced to death. No separate sentence has been passed against the accused-appellant for his conviction under Section 376 of the Indian Penal Code and/or Sections 4, 6, 8, and 10 of the Prevention of Children from Sexual Offences Act, 2012.

3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:

(i) Deceased N.K (name not mentioned for the reasons of confidentiality) was daughter of PW 2, who used to live with his brothers having a common courtyard. On 24.08.2013, at about 7.00 A.M., N.K. accompanied by her cousin, R.K. (name not being mentioned), daughter of PW 5, went to paddy field for clearing their bowels. After clearing her bowels, when PW 4 (R.K.), aged about 14 years and a student of school, went to wash her hands, accused Hem Lal Sah, who had been hiding in the bushes, came out, caught hold of N.K., threw her on the ground and forcibly started having sexual intercourse with her by catching hold of her neck and wrapping a dupatta (a sheet of clothes worn for covering the face), around her neck and said that if she (N.K.) shouted, he would kill her. On witnessing the ghastly occurrence, PW 4 went running to her house and narrated the occurrence to her parents and also to the parents of N.K., whereafter N.K’s parents and also the parents of PW 4 came running to the paddy field and when they reached the said field, they saw accused Hem Lal Sah fleeing away towards south. As the parents and also uncle and aunt of N.K. were seriously concerned about N.K., they started looking for N.K. and found her dead body lying in the bushes, N.K. having been put to death by tying a dupatta around her neck. They also noticed that paijama (trouser) of N.K. was untied. In the meanwhile, many of the co-villagers of PW. 4 gathered near the place of occurrence and they took N.K’s dead body to her house.

(ii) A fardbeyan was lodged, on 24.08.2013 itself, at 1.30 P.M., at Chandramandi police station, with regard to the occurrence, by PW. 2, father of N.K. Treating the said fardbeyan as First Information Report, Chandramandi P.S. Case No. 70 of 2013, under Sections 376/302 of the Indian Penal Code, was registered against the accused and police investigation commenced. During investigation, police visited the place of occurrence, held inquest over the said dead body, prepared inquest report (Exhibit-2). The said dead body was subjected to post mortem examination, which revealed that the bladder of the said deceased was empty, there was bruise, measuring 3” wide, encircling the neck, bleeding from vagina with lacerated wound extending from vaginal orifice to vaginal canal having blood clots. The injuries found were ante mortem in nature. In the opinion of the doctor, the injuries, on the private parts of the said deceased, were indicative of her having been subjected to forcible penetration and her cause of death was strangulation. During investigation, accused was arrested and, on completion of investigation, a charge sheet was laid, under Sections 376/302 of the Indian Penal Code read with Sections 4/6/8/10 of the Prevention of Children from Sexual Offences Act, 2012, against the accused.

4. At the trial, as the accused had not appointed any counsel of his choice, a counsel was appointed for his defence by order, dated 09.09.2013, and the charges wer