The court established that a death penalty may be commuted to life imprisonment based on mitigating factors, even in serious cases, while emphasizing the necessity for societal protection.

JUDGMENT :

DEBANGSU BASAK, J.

1. Death reference and the connected appeal have been heard analogously as they emanate out of the same impugned judgment of conviction dated June 27, 2023 and the order of sentence dated June 28, 2023 passed by the learned subha karmakar Digitaly signed by subha karmakar Date: 2025.07.23 Additional Sessions Judge, 2^nd Court, Jhargram in Sessions Trial No. 03(02) of 2022 arising out of POCSO Case no. 18/21.

2. By the impugned judgment and order, the learned Trial Judge has convicted the appellants under Section 376 DB/302/34/201/34/363/365 of the Indian Penal Code, 1860 and also under Section 6 of the POCSO Act. Learned Single Judge has awarded death penalty to the appellants.

3. Learned senior advocate appearing for the appellants has submitted that, the conviction and the sentence are unsustainable since, they are based on conjectures, inconsistencies, inadmissible evidence, and passed in gross violation of the settled principles governing criminal jurisprudence and capital sentence.

4. Learned senior advocate appearing for the appellants has contended that, the incident, even if proved, cannot be classified as the rarest of rare case warranting imposition of death penalty. He has contended that, the crime and the criminal test have not been correctly applied. According to him, it cannot be said that, awarding of any sentence other than death penalty has been unquestionably foreclosed.

5. Learned senior advocate appearing for the appellants has submitted that, there are material contradictions with regard to the place and mode of recovery of the dead body. He has referred to the inquest report as also to the deposition of the Executive Magistrate who stated that, the dead body was recovered from a canal on November 7, 2021. He has also referred to the testimonies of prosecution witness (PW) 2, 3, 4 and 6 who have stated that, the dead body was recovered from a paddy field allegedly shown by the appellant No. 1. He has contended that, there are discrepancies as to the place from where, the dead body was recovered and that, the same is fatal to the case of the prosecution.

6. Learned senior advocate appearing for the appellants has contended that, there is every possibility of fabrication in recovery of the seized articles. He has referred to the testimonies of PW 21 and 22 in this regard. He has submitted that, recovery of chocolates, burnt biri stub, bamboo stick and the victim’s clothes was allegedly made on November 9, 2021 which is 5 days after the dead body was allegedly recovered on November 4, 2021. He has contended that, it is highly improbable that perishable items like chocolates, burnt biri stub and clothes would remain undamaged in an open paddy field for 5 days. The delay and improbability of such recovery, according to him has cast serious doubts as to its authenticity and makes the same inadmissible in evidence. He has contended that, the same was planted and concocted evidence.

7. Learned senior advocate appearing for the appellants has contended that, the seizure list witnesses being PW 13 and PW 25 admitted that they were illiterate, unable to read and signed the seizure list without understanding the contents. He has contended that, prosecution failed to prove comp