The importance of conclusive circumstantial evidence and the need for evidence to establish the accused's lack of reform and rehabilitation.

Roy, J. : The appellant in a sessions trial was charged under Sections 376/302/201, IPC for committing rape and murder one minor girl Sima Sen, aged about 14 years and then causing disappearance of evidence of offence.

2. The case of the prosecution is summarized below :

On April 28, 2011 the victim girl aged about 14 years left her parents home at around 2.30 p.m. for their ancestral house to watch T.V. programme. It takes about 10 minutes to reach there but she never returned home. On the next day a missing diary was lodged and on 3rd May, 2011, 4 days after her missing a street dog was found in the village with a piece of flesh, following that a dead body was found lying on the Eastern Bank of Irrigation Canal and was identified as that of the victim girl. Then police was informed, police came, held inquest and on post-mortem it was found she was raped and killed.

3. It was the further case of the prosecution that on April 28, 2011 at around 2.30 the victim and the appellant both were found together by PW/3 Sudeb Ray who reported the PW/1 Bimal Sen and PW/17 Sandip Kr. Sen, the father and the uncle of the victim girl about the same and they at once rushed to the house of the appellant but he was not available there. According to the witness PW/10 Bittu Ghosh on the date of her missing at about 3.30 p.m. he heard a sound of moaning coming from the cowshed of Ratan Ghosh and as he came close to the place he was sure that same was coming from that cowshed. He then called the PW/11 Nara @ Khelaram Bag who was in a nearby place, as they were about to enter inside the cowshed, Bhulo came out and on their query he told that a goat had entered there and had been driven out and also did not allow them to enter in the cowshed. Thereafter the appellant was also found to enter in the cowshed with a bucket of water and after sometime came out and washed his hands outside. At that time he was found little nervous and was sweating. The PW/11 fully corroborated PW/10 over such facts.

4. It is also the case of the prosecution after his arrest Bhulo confessed his guilt and pursuant to his statement the wearing apparels of the victim and her "Orna" which was used as ligature and her 'Chappal' were recovered.

5. In support of its case the prosecution examined as many as 18 witnesses. However, defence examined none and innocence and false implication were pleaded.

6. In the trial the appellant was found guilty for the offences punishable under Sections 302/376/201, IPC and sentenced to death, R.I. for 10 years and R.I. for 5 years with fine and default clause.

7. The present death reference and the criminal appeal at the behest of appellant Bhulo Bagdi both are arising out of the selfsame judgement and order.

8. The learned Counsel for the appellant vehemently contended before us that this is a case, rests on circumstantial evidence. The circumstances relied against the appellant have not been proved against him beyond all reasonable doubts nor the circumstances so relied formed a complete chain pointing towards the guilt of the appellant. Apart from above he contended as follows;

(a) The identification of the dead body before the autopsy surgeon has not been proved.

(b) The circumstance "last seen" is a very weak piece of evidence and there was no evidence to show soon after the victim was found in the company of the appellant she was killed.

(c) The claim of the PW/ 10 that a sound of groaning was coming out from the cowshed where the victim was allegedly killed never received any support from the PW/11.

(d) The recovery of the alleged incriminating articles pursuant to the statement of the appellant cannot be admitted under Section 27 of the Evidence Act because such leading statement was never exhibited during the trial.

(e) According to the PW/1, the father of the victim girl, near the dead body her wearing apparels were found lying, therefore the recovery of those wearing apparels pursuant to the statement of the appellant lost all signific