Circumstantial evidence can be sufficient for conviction in absence of eyewitnesses; mitigating factors can influence sentencing, leading to commutation of death penalty to life imprisonment.

JUDGMENT :

Rongon Mukhopadhyay, J.:

1. Heard Mr. Mahesh Kr. Sinha, learned counsel for the appellant in Criminal Appeal (DB) No. 113 of 2019 and Mr. Vineet Kr. Vashistha, learned Spl. P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 09.10.2018 (sentence passed on 11.10.2018) passed by Sri Kamal Nayan Pandey, learned Additional Sessions Judge-I, Dumka in Special POCSO Case No. 01/2017, whereby and whereunder the appellant has been convicted for the offences u/s 364, 376, 302, 201 of the I.P.C. and Section 4 of POCSO Act and has been sentenced to R.I. for life along with a fine of Rs. 5000/- u/s 364 of the IPC and in default in payment of fine he has to undergo R.I. for 3 years, R.I. for life u/s 376 of the I.P.C. along with a fine of Rs. 5000/- and in default in payment of fine to undergo R.I. for three years, R.I. for seven years for the offence u/s 201 of the I.P.C. along with a fine of Rs. 5000/- and in case of default in payment of fine to undergo R.I. for 1 year, R.I. for life u/s 4 of the POCSO Act along with a fine of Rs. 5000/- and in default in payment of fine to undergo R.I. for 3 years and death sentence for the offence u/s 302 of the I.P.C. along with a fine of 5000/- and in default in payment of fine to undergo R.I. for three years.

3. The prosecution case arises out of the written report of Yashoda Devi dated 02.01.2017, in which, it has been alleged that the three-year-old daughter of the informant victim ‘X’ was playing with the children when Rohit Rai (appellant) had picked up the daughter of the informant and went somewhere. The informant had a suspicion that Rohit Rai might harm the child of the informant.

Based on the aforesaid allegations Saraiyahat P.S. Case No. 02/2017 was instituted. On completion of investigation charge sheet was submitted and cognizance was taken. Charge was framed against the accused u/s 364, 376, 302, 201 of the I.P.C. and Section 4 of the POCSO Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 11 witnesses in support of its case.

5. P.W.1 (Jahari Devi) has stated that she had seen Rohit Rai taking away the three-year-old granddaughter of Ruplal on his lap towards an allay. The family members of victim ‘X’ and the villagers searched for her but she could not be found. When the Police had apprehended Rohit Rai, he had brought the dead body of victim ‘X’ from somewhere.

In cross-examination, she has deposed that her house is adjacent to the house of Rohit Rai. Darkness had already descended at the time of the incident. Several persons used the allay. She has deposed that she cannot see in darkness.

7. P.W.2 (Tamadi Devi) did not support the case of the prosecution and was declared hostile by the prosecution.

8. P.W.3 (Yogendra Tanti) is the brother of the informant who has stated that the incident is of 5:00 P.M. He and his brother Ravindra Kumar were playing with victim ‘X’ in front of the house of Pachu Tanti when Rohit Rai came, picked up victim ‘X’ on his lap and went away. The accused thereafter did not return back with victim ‘X’. Despite conducting a search neither the accused nor the victim ‘X’ could be traced out. The victim ‘X’ and his mother Yashoda stays at his house. When the victim ‘X’ had become traceless Gilosari Devi and his sister Yashoda Devi had gone to the market and they had returned at 6:00-7:00 P.M. after which they were informed about the disappearance of victim ‘X’. On the next day they had informed the Police and thereafter Police apprehended Rohit Rai who conf