IMPORTANT POINT
The absence of direct evidence does not negate a conviction if circumstantial evidence establishes guilt beyond reasonable doubt.

JUDGMENT :

(S.K. Medhi, J)

1. The present appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 24.04.2018 passed by the learned Special Judge, Nagaon, Assam in Special Case No. 48 (N) of 2016. By the aforesaid judgment, the appellant has been convicted and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- in default R.I. for another 6 (six) months under Section 302 IPC and to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- in default R.I. for another 6 (six) months under Section 6 of the POCSO Act concurrently.

2. The case involves the brutal killing and rape of a seven-year-old child who would be referred to as the victim in the judgment.

3. The criminal law was set into motion by lodging of an Ejahar by PW-3, the cousin of the deceased. As per the Ejahar which was lodged on 27.12.2015, the appellant had lured the deceased on the pretext of buying chocolate by giving Rs. 10/-to her. Thereafter, as she did not return, her mother PW-2 made a search and the body of the deceased was found in an abandoned latrine. The Ejahar had specifically named the appellant as the accused person.

4. After completion of the investigation, the charge sheet was submitted whereafter charges were framed. As the appellant had denied the charges, the trial had begun. In the trial, 15 nos. of prosecution witnesses were examined along with the aspect of proving certain documents and exhibits. After completion of the evidence of the PWs, the appellant was examined under Section 313 of the Cr.P.C. wherein he had denied the allegations. It may be mentioned that it was thereafter that the defence had adduced evidence through 2 (two) nos. of witnesses in which certain aspects were revealed.

5. After completion of the evidence and other procedures established by law, the matter was considered which culminated in the aforesaid judgment.

6. We have heard Ms. A. Devi, learned Legal Aid Counsel. We have also heard Ms. B. Bhuyan, learned Senior Counsel & Addl. Public Prosecutor, Assam assisted by Ms. R. Das, learned counsel.

7. Ms. Devi, the learned Legal Aid Counsel has submitted that the case is based on circumstantial evidence and the materials on record would not constitute a complete chain to come to a definite conclusion of complicity of the appellant. She has highlighted that apart from the fact that there was no eye-witness or any direct evidence, even the forensic evidence collected was not in accordance with law. She has also submitted that the requirement of having a DNA examination under Section 53-A of the Cr.P.C. was done away with and therefore there was no conclusive material to connect the appellant with the offence. She has submitted that though the offence in question is a heinous one, without conclusive materials to connect the appellant with the same, the learned Sessions Court had committed error in law in convicting the appellant. On the other hand, the learned Addl. Public Prosecutor has submitted that the impugned judgment is based on relevant materials and the conclusion arrived at is on the basis of the allegation being proved beyond all reasonable doubts.

8. To appreciate the rival contentions, it would be necessary, as an Appellate Court to look into the materials more specifically, the depositions of the witnesses. As mentioned above, 15 nos. of prosecution witnesses were examined which included 2 (two) numbers of Doctors and the Investigating Officer. PW-12 is the Doctor who had conducted the post-mortem over the body of the deceased and PW-14 is the Doctor who had examined the appellant.

9. PW-1 is a seizure witness. PW-2 is the mother of the deceased and her deposition is of significance. She narrates that on the fateful evening of December, 2015, while the deceased was warming herself by sitting beside a fire, the appellant had come to their place and sat near her and was conversing with her whereafter,