Point of Law: Criminal Law - Reliability of witnesses as to "last seen" - All circumstances and all evidences are pointing out towards one fact and all, which is the guilt of the accused. Court take no notice of fact that accused had raped girl when she was alive or even when she was not alive, because statement to that effect had been made before the police which is not admissible. But his conduct, last seen evidence and the recovery made by him clearly proved that he had kidnapped the victim and thereafter killed her. Therefore uphold conviction of accused under Section 302 IPC.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. These two cases, i.e. Criminal Appeal (J) No. 37/2019 and the Death Reference No. 1/2019 have arisen out of the Sessions Trial No. 86(N)/2017.

The two cases were heard together on virtual mode.

Heard Mr. A.M. Bora, learned Amicus Curiae for the appellant. Also heard Mr. M. Phukan learned Additional Public Prosecutor, Assam. We first decide the Criminal Appeal No. 37 of 2019.This is an appeal filed by the appellant/accused, namely, Krishna Rajgaur @ Sagar, who has been convicted under Sections 302/363/201 IPC and inter-alia has been awarded the death sentence under Section 302 IPC by the learned Additional District and Sessions Judge, Fast Tract Court, Hojai at Sankardev Nagar vide judgment dated 22.01.2018 passed in Sessions Case No. 86(N)/2017.

2. Facts of the case are as follows:

On 06.02.2017, the father of the deceased/victim lodged an FIR before the Lumding Police Station, District-Hojai, which was registered as Lumding Police Station Case No. 23/2017. As per the informant, his seven years old daughter was kidnapped at about 5:00 PM the last day, i.e. on 05.02.2017, by the accused Krishna Rajgaur @ Sagar, who was working in his house. The accused had taken his daughter to the market at Lumding with his permission, but as they did not return that day, the FIR was lodged, with allegation of kidnapping against the accused. The age of the accused at the relevant point of time was thirty-one years and the age of the victim was seven years.

3. The accused could not be arrested immediately as he was absconding and was finally arrested on 10.03.2017 from the neighbouring State of Nagaland, where he was hiding. On his arrest, the accused had confessed before the police that he had kidnapped the girl and how he raped and strangulated the girl thereafter and then in order to remove all evidence, he threw the body inside the jungle. On his pointing out, the recovery was made from the jungle of the skull and bone of human being and certain clothing of the victim including blanket etc. were recovered. A seizure memo etc. was prepared. The bones and other articles were sent for forensic examination.

4. Meanwhile after the recovery, an inquest report was prepared on 14.03.2017 submitted by Mr. Bonny Inam Shadab, Executive Magistrate, Hojai (PW-10). The inquest report bear the signatures of the witnesses. The inquest report dated 14.03.2017 reads as under:-

“INQUEST REPORT

Time: 4.30 P.M.

Date: 14.03.2017

I Borry Mam Shadab, ACS, Executive Magistrate, Hojai arrived in Lumding forest reserve near eta bhatta chariali under Lumding Police Station to perform inquest of a body. But after arriving at the site alongwith O/C Lumding P.S. it found that only skeleton was found that too incomplete. At first a skull was found which has burnt sign in it, after that while searching the neighbouring forest area, more bones of was found. Alongwith the bones a blue, red and white chequered blanket was found, moreover a red skirt, black t-shirt, purple panty, red and white towel (Gamosa) was also found in the area. The site from where the skeleton was recovered was shown by the accused who was apprehended by Lumding P.S. on suspect. Though the bones cannot be identified, the cloths were identified by Sri. Parma Chauhan and Sri. Kanti Devi, who identified themselves to be the parent of the victim. Hence the cause of death cannot be ascertained, to find out the cause of death, the bones to be sent for post mortem.”

5. The FLS report dated 29.07.2017 state as under:-

“1. Osteological examination reveals that the skeletal bone under Exhibit No. Bio-3014 and Bio-3015 (as marked here) belongs to human individual.

2. The age of the deceased at the time of death could be estimated to be less than 18 years.

3. Gender discrimination of the skeletal bone under Exhibit No. Bio-3014 and Bio-3015 (as marked here) is inconclusive due to lower age group.

4. Chemical analyses gave negative result for test of common poison as such cause of death could not