For conviction under circumstantial evidence, the complete chain implicating guilt must exclude reasonable doubt of innocence.

JUDGMENT

S.K. Sahoo, J.

The reference under section 366 of the Code of Criminal Procedure, 1973 has been submitted to this Court by the learned Adhoc Addl. Sessions Judge, F.T.S.C., POCSO, Jagatsinghpur (hereinafter 'the trial Court') in Special G.R. Case No.30 of 2014 for confirmation of death sentence imposed on Sk. Asif Alli @ Md. Asif Iqbal and Sk. Akil Alli (hereinafter 'the appellants') vide judgment and order dated 29.11.2022 and accordingly, DSREF No.01 of 2022 has been instituted. CRLA No.120 of 2023 has been filed by appellant Sk. Asif Alli @ Md. Asif Iqbal and CRLA No.121 of 2023 has been filed by appellant Sk. Akil Alli challenging the self-same judgment and order of conviction passed by the learned trial Court.

The appellants along with Sk. Abid Alli faced trial in the trial Court for commission of offences punishable under sections 302/376-A/376-D read with section 120-B of the INDIAN PENAL CODE (hereinafter 'the I.P.C.') and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO Act') on the accusation that on 21.08.2014 in between 2.00 p.m. to 11.00 p.m. in the house of Sk. Khairuddin at village Manu Mohalla under Tirtol police station in Jagatsinghpur district, they made criminal conspiracy and committed gang rape and aggravated penetrative sexual assault on the minor victim girl (hereinafter 'the deceased') and inflicted injuries which caused death of the deceased.

The learned trial Court vide impugned judgment and order dated 29.11.2022 found the appellants guilty for the offences punishable under sections 302/376-A/376-D of the I.P.C. and section 6 of the POCSO Act and awarded them death sentence for the offence under section 302 of the I.P.C. so also sentenced each of them to undergo imprisonment for life for the offence under section 376-A of the I.P.C., which shall mean imprisonment for the remainder of natural life, R.I. for a period of twenty years and to pay a fine of Rs.50,000/- (rupees fifty thousand), in default, to undergo R.I. for a further period of one year for the offence under section 376-D of the I.P.C., however, no separate sentence was awarded for the offence under section 6 of the POCSO Act in view of the section 42 of the said Act. The substantive sentences awarded to the appellants were directed to run concurrently.

The accused Sk. Abid Alli, who faced trial along with the appellants, was found not guilty for the offences punishable under sections 302/376-A/376-D/120-B of the I.P.C. and section 6 of the POCSO Act and accordingly, he was acquitted of all the charges.

Since both the DSREF and the criminal appeals arise out of the same judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment.

Prosecution Case:

2. The prosecution case, as per the first information report (hereinafter F.I.R.) (Ext.3) lodged by P.W.7 Tara Bibi, is that on 21.08.2014 at about 2.00 p.m., the deceased along with her cousin brother Sk. Farhan Alli (P.W.17) had been to a nearby shop of their house to purchase chocolates. As there was delay of the deceased in returning home, at about 3.00 p.m., P.W.7 and others searched for the deceased but failed to trace her out. Some co-villagers found the deceased on the Taza of one Sk. Khairuddin in an unconscious state and immediately they shifted her to Tendakuda Primary Health Centre, but the doctor advised them to take the