JUDGMENT :

(N. Kotiswar Singh, J.)

1. Heard Mr. A.M. Bora, learned Senior counsel appointed as an amicus curiae in the Death Sentence Reference No.2 of 2019, assisted by Mr. V.A. Chowdhury, learned counsel and Mr. Z. Alam, learned counsel for the appellant in Criminal Appeal (J) 15/2019, which have been heard together. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.

2. Since the appellant has been sentenced to death by the impugned judgment and order dated 29.03.2019 passed by the learned Special Judge, Bilasipara in Special POCSO Case No.4/2018 under Sections 376-AB/302/201 of Indian Penal Code, 1860 [in short, IPC] read with Section 6 of the POCSO Act, 2012 as required under Section 366 of Code of Criminal Procedure, 1973 [in short, Cr.P.C.], the matter has been placed before this Court.

We also have noticed that the appellant also preferred an appeal being Criminal Appeal (J) 15/2019. Accordingly, we have decided to hear the death reference and the appeal jointly.

3. The principal plea taken by the appellant is that the conviction is based on circumstantial evidences and since the circumstantial evidences have not been proved beyond reasonable doubt, the appellant would be entitled to be acquitted. Under the circumstances, the question of awarding death penalty does not arise. Otherwise also, it has been submitted that the nature of the crime alleged and nature of evidence disclosed does not warrant death penalty.

4. Accordingly, we will proceed to hear the Jail Appeal first to consider whether the conviction of the appellant can be sustained at all on the basis of the circumstantial evidences. If the conviction by the learned trial Court is upheld, we will proceed to examine as to whether the sentence of death awarded to the appellant deserves to be confirmed as provided under Section 366 of Cr.P.C.

5. On the other hand, if the appellant is able to make out a case that the circumstantial evidences have not been fully established to sustain the conviction and if the benefit of doubt is given to the appellant, obviously, Death Sentence Reference No.2/2019 will be required to be returned by not confirming the death sentence awarded.

6. Accordingly, we proceed to deal with Criminal Appeal (J) 15 of 2019.

7. Mr. Alam, learned counsel for the appellant, has submitted that only two circumstantial evidences on which the prosecution case hinge, which the prosecution claims to have established are based on last seen theory and the evidence of alleged recovery of the dead body of the deceased at the instance of the appellant as admissible under Section 27 of the Indian Evidence Act, 1872 [in short, Evidence Act] which according to the prosecution directly link the appellant with the alleged crime.

8. It has been submitted that, however, neither of these aforesaid two circumstances can be said to have been established beyond reasonable doubt, as the last seen theory could not be said to have been established because of the inconsistencies in the evidence of the prosecution witnesses. Similarly, the alleged evidence of discovery of the dead body of the deceased at the instance of the appellant is admissible under Section 27 of the Evidence Act is also highly doubtful and, in fact, there is evidence to the effect that the police used coercion and threat, which would render any statement made by the appellant to be inadmissible under Section 25 of the Evidence Act and, resultantly, any such statement made under coercion cannot be also used for the purpose of discovery under Section 27 of the Evidence Act.

9. Accordingly, it has been submitted that if these two basic foundational facts are not proved beyond reasonable doubt, the entire prosecution story would crumble. In such a situation, the question of confirming the death sentence would not arise, as the appellant would be entitled to be acquitted and set free.

10. Since the learned trial Court has awarded death sentence to the appellant which involves rape and mu