Point of Law : Evidence suggesting that the accused was seen in the company of the deceased on the date of occurrence can at best raise grave suspicion about his involvement but the same.

JUDGMENT :

Suman Shyam, J.

Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the informant.

2. This appeal is directed against the judgment and order dated 11.02.2020 passed by the learned Sessions Judge, Sonitpur, Tezpur in connection with Special POCSO Case No.67/2017 convicting the sole appellant under Section 302/201 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for further six months, for the offence under Section 302 of the IPC. The appellant was also sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5000/-with default stipulation for committing the offence under section 201 of the IPC. Both the sentences were to run concurrently.

3. This is yet another unfortunate case where an 11 years old girl child was found dead under mysterious circumstances with her body partially buried under the soil. The prosecution case, as unfolded from the materials available on record, is to the effect that on 01.11.2017 at around 2.30 p.m. the victim had gone to the “bagan” (garden) at Block No.3 of Malijan Tea Estate along with the accused Dhiren Tanti looking for firewood. Subsequently, the victim was raped and murdered and her body was dragged and buried in a drain of the garden by the accused. On 01.11.2017, at about 7.10 p.m., the Officer-in-Charge of Salonibar Policei Outpost, coming under Tezpur Police Station, had received an information over phone from the Welfare Officer of Malijan Tea Estate informing him that one minor girl has been murdered and her body concealed under the ground. Accordingly, Salonibari Outpost G.D. Entry No.11 dated 01.11.2017 was made and the police went to the place of occurrence, arrested the accused person, conducted videography of recovery of the dead body allegedly, on being led by the accused. On 02.11.2017 an F.I.R. was lodged by the PW-3 i.e. the uncle of the victim based on which, Salonibari O.P. G.D. Entry No.29 dated 02.11.2017 was made and the same was forwarded to the Tezpur Police Station for registering a proper case. Based on the F.I.R. dated 02.11.2017, Tezpur P.S. Case No.2253/2017 was registered under Sections 302/201 of the IPC r/w Section 4 of the POCSO Act and the matter was taken up for investigation. S.I. Aminul Islam i.e. the PW-8 was entrusted with the task of carrying out investigation in the case. The PW-8 had conducted investigation but before he could submit charge-sheet he was transferred, as a result of which, the charge-sheet in this case had to be submitted by the PW-11. Based on the charge-sheet, charges were framed against the accused/appellant under Sections 302/201 of the IPC read with Section 8 of the POCSO Act, 2012 and the same was read over and explained to him. However, since the accused had pleaded not guilty the matter went up for trial.

4. In order to bring home the charges, the prosecution side had examined as many as 11 witnesses out of which PWs-7, 8, 9, 10 and 11 were the official witnesses. Upon recording of evidence of the prosecution side the statement of the accused person was recorded under Section 313 of the Cr.P.C. wherein he had denied all the incriminating circumstances put to him. The accused, however, did not adduce any evidence in his defence. Upon conclusion of trial and on evaluation of the materials on record the learned trial court had found that the charges brought against the accused under Sections 302/201 of the IPC were fully established on the basis of circumstantial evidence brought on record. The accused was, however, acquitted in respect of the charge brought under Section 8 of the POCSO Act due to want of sufficient evidence. The conviction of the appellant/accused in this case is based on the “last seen together” circumstances which, according