The court balanced the 'criminal test' and the 'crime test' to determine whether the case warranted the death penalty, ultimately commuting the sentence to life imprisonment based on the appellant's young age, lack of criminal antecedents, and positive conduct during incarceration.

JUDGMENT :

Joymalya Bagchi, J.

1. The appeal and the death reference are taken up for hearing analogously and are being disposed of by this common judgment and order.

2. The appeal is directed against judgment and order dated 5.9.2016 and 6.9.2016 passed by Special Judge, 2nd Court, Suri, Birbhum, in Special Trial No.6(4)/16 arising out of Special Case No.76 of 2015, convicting the appellant under section 302 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’) and sentencing him to death for the offence punishable under section 302 of I.P.C. and to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default to suffer further rigorous imprisonment for five years for the offence punishable under section 6 of the POCSO Act with a further direction to pay compensation to the tune of Rs.10,00,000/- to the mother of the deceased.

3. Prosecution case, as alleged, against the appellant is to the effect that on 11.12.2015 at around 05:00 p.m., P.W.1, mother of the victim, saw the appellant picking up the victim aged about five years, who was playing in the courtyard of the house, in his arms and leave the house. P.W.1 did not raise any protest as the appellant was the uncle of the victim. Later in the evening when the victim did not return, P.W.1 started searching for her. At 08:00 p.m. in the night the appellant returned home. P.W.1 along with her mother (P.W.4) and others enquired about the whereabouts of the victim from the appellant. Initially, he did not state anything. Thereafter, the appellant admitted that he had raped the victim and left her unconscious beside the drain of a rice mill. Hearing this, all of them rushed to the mill and found the victim lying naked in an unconscious state near the drain. She was taken to Sian Hospital and, thereafter, shifted to Burdwan Medical College and Hospital where the victim died on 13.12.2015 at 03.25 a.m. P.W.1 lodged written complaint with the police station resulting in registration of Bolpur P.S. Case No.459/15 dated 13.12.2015, under section 304 I.P.C. and under section 6 of POCSO Act against the appellant.

4. Post-mortem was conducted over the body of the victim and in conclusion of investigation charge-sheet was filed against the appellant. Charges were framed under section 302 of I.P.C. and under section 6 of the POCSO Act against the appellant. He pleaded not guilty and in the course of trial, prosecution examined seven witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by judgment and order dated 05.09.2016 and 06.09.2016 convicted the appellant and sentenced him to death, as aforesaid.

5. Hence, the present death reference and the appeal.

6. Mr. Chatterjee, learned advocate appearing on behalf of the appellant argued that the circumstances relied upon by the prosecution have not been proved beyond doubt. They do not unerringly point to the guilt of the appellant. P.W.1, mother of the victim used to go out for work and it is improbable that she had seen the appellant take away the victim on the fateful day. Extra-judicial confession of the appellant relied on by the prosecution is inadmissible as prosecution witnesses admitted that the appellant had been assaulted prior to making the statement. Conduct of the prosecution witnesses in not lodging First Information Report (in short ‘F.I.R.’) and handing over the appellant on the very day to the police also improbabilises the so-called extra-judicial confession. There is no evidence regarding the whereabouts of the appellant after he had made the extra-judicial confession till his arrest. No forensic report with regard to the wearing apparels of the appellant has been produced in the instant case. Belated recovery of wearing apparels of the victi