The main legal point established in the judgment is the reliance on witness testimony, medical reports, and the appellant's conduct to establish guilt for rape and murder, leading to the imposition of rigorous imprisonment and life imprisonment instead of the death penalty.

JUDGMENT

Joymalya Bagchi, J. - This appeal is directed against the judgment and order dated 18.04.2018 and 19.04.2018 passed by learned Additional District & Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in Sessions Trial No. 5(7)15 arising out of Sessions Case no. 434(Nov.)14 convicting the appellant for commission of offences punishable under sections 376A/302 IPC and section 14(1) of Child Labour (Protection) Act [sic Child Labour (Prohibition and Regulation) Act, 1986 (for short, 'Act of 1986')] and sentencing him to death subject to the confirmation by this Court.

2. The appeal and the Death reference have been heard analogously and have been disposed of by this judgment and order.

Prosecution case:-

3. Victim was a 12-year old girl. One month prior to the incident she was employed in the house of the appellant as a full time domestic help. On 23.05.2012 at about 1:00 pm her father P.W. 1 got information the victim had been admitted at Tamluk District Hospital. He rushed to the hospital and saw his daughter writhing in pain. She was unable to speak but pointed to her chest. Appellant was present at the spot. He disclosed the victim had consumed poison. He also assured P.W. 1 and his wife that she was stable and if necessary would be shifted to Calcutta for better treatment. Unfortunately, the victim died.

4. Appellant sympathized with P.W. 1 and told him that he would arrange for cremation and shradh ceremony and take responsibility of other daughters on condition that P.W. 1 remained silent. Thereafter, with the help of local councilor the body of the victim was released.

5. When police came to the spot P.W. 1 told them there was conspiracy behind the death of his daughter as she had been taken to hospital at 10 AM but he was informed after three hours i.e. around 1:00 PM. During cremation his wife noticed injuries on the private part of their daughter. This raised suspicion in his mind that the victim had not died by consuming poison but due to some indecent behavior. Initially, he was unable to react due to his mental distress.

6. On the next day, appellant and his associates threatened him not to go to police. 7-8 days later he was taken to the residence of one Golam Sarwar. There he was asked to put LTI on a document stating that he would not file any case against the appellant in lieu of money. He refused to do so. Police came to the spot. He was taken to police station where he lodged complaint which was scribed by one Basudeb Das (P.W. 2). Appellant was also brought to the police station and arrested.

7. In the course of investigation his statement was recorded. Post mortem report of the victim showed she had been subjected to rape and throttled to death. Charge-sheet was filed.

8. At the time of consideration of charge defence prayed the viscera report be called for. Viscera report was produced. Upon consideration of the materials on record, charges were framed under section 376A and 302 IPC and under section 14(1) of 'Act of 1986'.

9. Appellant pleaded not guilty and claimed to be tried.

10. In the course of trial, prosecution examined seven witnesses including P.W. 1, father of the victim.

11. In conclusion of trial, the trial Judge vide judgment and order dated 18.04.2018 and 19.04.2018 convicted and sentenced the appellant, to death. Hence, the present appeal and death reference. Arguments at the Bar:-

12. Mr. Basu, learned Senior Counsel submitted the charges are inconsistent and defective. Dates of occurrence in the heads of charges are not consistent to one another. P.W. 1 is not a reliable witness. He admitted he had not visited the house of the appellant. He is not a competent witness with regard to the victim staying in the house of the appellant as a full time domestic help. His knowledge with regard to the injuries in the private parts of his daughter is derived from his wife who has not been examined. P.W. 1 has criminal antecedents and was arrested in connection with another case. Reason for delay in lodgi