State of Gujarat Vs. Koli (Makwana) Chhaganbhai Laxmanbhai - Court Judgment

Excerpt:

Judgment:

Rajesh H. Shukla, J.

1. The present confirmation case is filed by the State for confirmation of the capital punishment awarded by the impugned judgment and order dated 18-10-2007 passed by the learned Jt. District & Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 127 of 2005 convicting the original accused (appellant in Criminal Appeal No. 44 of 2008) for the alleged offence under Sections 363, 376, 392, 302 and 201 of the Indian Penal Code and awarding death sentence to the accused for the offence under Section 302 of I.P.C. subject to confirmation by the High Court of Gujarat. The appellant-original accused has also preferred an appeal, being Criminal Appeal No. 44 of 2008, against the impugned judgment and order under Section 374 of Criminal Procedure Code challenging the conviction recorded by the learned Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 127 of 2007 for the alleged offence on the grounds set out in detail in the Memo of Appeal, inter alia, that the learned Judge has failed to appreciate the material and evidence on record and has also failed to appreciate the deposition of the witnesses. It is also contended that the learned Judge has failed to consider that the identification parade of the accused has been done by minor Nutan after 2 years of the incident and, even otherwise, the judgment and order is bad in law and contrary to the facts and circumstances. It is also contended that the learned Judge has failed to consider the medical evidence including post-mortem report that there are external injuries found on the body of the deceased and though no other evidence pointing out the guilt of the accused has been brought on record by the prosecution, the learned Judge has recorded the conviction finding the accused guilty. Therefore, the impugned judgment is contrary to the material on record and also contrary to the principles of criminal jurisprudence.

2. The facts of the prosecution case, briefly summarized, are as follows:

2.1. It is alleged that the minor daughter of the complainant - Rani - aged about 7 years, was studying in Municipal School No. 6/7, 7/7 in Std. I at Bhavnagar. In the year 2002, after vacation, the deceased victim - daughter of the complainant - was attending the school. The timing of the school was from 12-00 noon to 5-00 p.m. and she used to come to the house during recess around 2-30 - 2-45 p.m.

2.2. It is alleged that on 6-1-2003 the deceased victim had gone to the school, but did not return from the school in the evening. Therefore, the wife of the complainant (father of the deceased) informed that the deceased victim has not returned home and she had also not come in the recess. Therefore, on inquiry with the friend of the deceased victim, Nutan - residing in the neighourhood - she stated that about 2-30 p.m. when they were going to the school, one person on the bicycle had come and allured the deceased victim to give sugarcane and on such allurement of giving sugarcane, had taken her on his bicycle carrier. Therefore, the friends of the deceased victim - Nutan and Farida - ran after her and the said person on the bicycle is said to have threatened the two young friends of the deceased victim that if they followed he would get them caught by police, and therefore, they stopped running behind them. Thereupon, the complainant is said to have given a 'janvajog' entry, about the victim having not been found, in D-Division Police Station, Bhavnagar. Thereafter, on 11-1-2003, when the complainant visited the D-Division Police Station, Bhavnagar, he is reported to have been informed that dead body of a young girl has been recovered from 'Junabandar Tamriya Khadi' and it has been taken for post-mortem to Sir T. Hospital. Therefore, the complainant accompanied by the police had visited Sir T. Hospital where looking at the dead body covered with white shirt he recognized that it was the dead body of his deceased daughter and he disclosed to the police. On the basis thereof, an entry for accidental death, being Entry No. 1-2003 under Section 174 of Cr.P.C was made by the 'C Division Police Station for further investigation. After completion of inquest panchnama and the post-mortem, the dead body was handed over for funeral to the complainant.

2.3. Thereafter, investigation was made by the police and during the course of the investigation for the offence registered as C.R.-I No 340 of 2004 under Section 366, the accused was arrested and sent to the judicial custody. It is also stated that the brother of the complainant Sunil, who was working with G.I.D.C. at 'Chitra', Bhavnagar, in a factory informed him on telephone that one person has been arrested in connection with similar incident like the case of the deceased victim Rani, and therefore, the complainant may see him. Therefore, the complainant came to Bhavnagar on 2-4-2005 and lodged a complaint for the offence under Sections 363, 366, 376, 392 and 302 and 201 of I.P.C. against the accused as C.R. No. I-60 of 2005. It is on the basis of this complaint, the aforesaid offences were registered and T. I. parade was also held on 17-5-2005 in which the friend of the deceased victim-Nutan-had identified the accused.

2.4. On the basis of investigation made by the police, a charge-sheet was filed before the Court of Chief Judicial Magistrate which was registered as Criminal Case No. 4533 of 2005 and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions under Section 209 of I.P.C. and registered as Sessions Case No. 127 of 2005.

2.5. After ascertaining as regards the papers made available to the accused, the learned Addl. Sessions Judge framed the charges for offence under Sections 363, 366, 376, 392, 302 and 201 of I.P.C. on 2-1-2007 and as the accused denied the charges, the Court proceeded with the trial.

2.6. It is required to be mentioned that the accused had engaged Advocate Mr. R. B. Makwana to defend his case. Thereafter, as per the purshis (Exh. 17) learned Advocate Mr. Makwana retired. Therefore, the legal aid was sought to be given to the accused and the matter was adjourned to provide legal aid. However, the accused had made an endorsement that he does not wish to engage a lawyer through legal aid, and though an opportunity was afforded to him, he declined to have any legal aid nor he had engaged his own lawyer. Therefore, learned Advocate Mr. A. M. Mehta was appointed to defend the case of the accused, but at a later stage. Therefore, this Court, consciously examined this aspect on the basis of relevant evidence and the rojkam, wherein it has been reflected that though sufficient opportunity was given, the accused had declined to have any legal aid. Initially, he had engaged an Advocate who retired as per the purshis (Exh. 17). Thereafter, when legal aid was offered, he declined. Thus, it is clear that he was not denied the legal aid. Though, an opportunity was given to him, he did not avail of any legal aid. Still, legal aid was provided to him. Therefore, it cannot be said that the accused had remained without any legal aid and it has caused any prejudice to the accused which would amount to violation of his rights, including rights under Article 21 of the Constitution of India.

2.7. In order to bring home the charges levelled against the accused, the prosecution has examined the following witnesses.

------------------------------------------------------------------------------P.W. Name Status Exh.------------------------------------------------------------------------------1. Nutanben Vallabhbhai Friend of the deceased 62. Dilipkumar Kantilal Rathod Executive Magistrate 73. Iliyasbhai Aadambhai Panch witness forpoint out panchnama 104. Dr. Basantkumari Narayan Behra Who performed post-mortem 185. Aarif Dadubhai Panch witness for discoveryof belongings of deceased 196. Ashokkumar G. Trivedi P.S.O. 217. Pruthvisinh V. Jadeja Who recorded F.I.R. 258. Manishkumar H. Thaker I.O. 30------------------------------------------------------------------------------2.8. The prosecution has also produced documentary evidence with the list at Exh. 5 which include, 'point out panchnama' (Exh. 11), inquest panchnama (Exh. 11-A), post-mortem report (Exh. 14), arrest panchnama (Exh. 15), panchnama reg. taking possession of articles (Exh. 20), etc.

2.9. After recording of evidence was over, the learned Addl. Sessions Judge, Bhavnagar, recorded further statement of the accused under Section 313 of Cr.P.C. In the further statement, the factum about having abducted the deceased victim from the school on his bicycle has been admitted though he had denied other charges for offence committed under Sections 372, 302, 201 etc. of I.P.C.. Insofar as his admission about having taken away the deceased victim on his bicycle from the school is concerned, elaborate discussion is made at a later stage on appreciation of evidence.

3. Mr. A. J. Desai, learned A.P.P., referred to the material and evidence on record and briefly summarising the same, referring to the written submissions given by him, stated that the complainant-father Nandubhai Maneklal Ranadive has given a 'janvajog' entry regarding missing of his daughter Rani (deceased) before 'D' Division Police Station on 6-1-2003. The dead body of the deceased Rani was found on 11-1-2003. The dead body was found from 'Tamariya' Creek near 'Ramdev' Temple at Bhavnagar and the panchnama thereof is at Exh. 12. He submitted that the respondent-accused was arrested in another crime being C.R.-I No. 340 of 2004 registered at Bhavnagar City 'A' Division Police Station on 2-4-2005 and on the basis of the 'janvajog' entry with regard to the death of the deceased the Investigating Officer arrested the accused for the present offence on 3-5-2005. Thereafter, as the accused revealed and disclosed with regard to the offence, he was taken with the panchas to the scene of offence from where the dead body of deceased Rani was recovered. The panchnama is made at Exh. 11 on the basis of the testimony of the panch witness Iliyasbhai Adambhai Saiyad, P.W. 3 (Exh. 10). Further, as it was narrated and revealed by the accused, father of deceased Rani was informed and he lodged an F.I.R. being C.R.-I No. 60 of 2005 on 2-4-2005 at Bhavnagar City 'D' Division Police Station for the alleged offences under Sections 363, 366, 376 and 302 of I.P.C. Thereafter, at the instance of the accused, the articles of the deceased girl Rani were discovered for which panchnamas at Exhs. 20, 31 and 32 were made. He submitted that thereafter, as it transpires from the record, the Test Identification Parade of the accused through the Executive Magistrate, Bhavnagar, was held and the friend of the deceased, Nutan, who was with the deceased when she was abducted by the accused, identified the accused in the Identification parade on 16/17-5-2005.

3.2. It is required to be noted and emphasized that as per the testimony of Nutan, who was studying with deceased Rani in the school, she was there when the deceased was abducted and she has clearly stated that one person had taken away deceased Rani by offering her sugarcane and when she and the other friend tried to follow that person, they were threatened by him (accused) so as to see that they do not follow. This Nutan has identified the accused later on, and thus the deceased Rani was last seen together with the accused on 6-1-2003 as stated by Nutan, P.W. 1. Further, the learned A.P.P. strenuously submitted that it is required to be noted and emphasized that the discovery panchnama with regard to the articles of deceased Rani has been made which have been recovered at the instance of the accused who alone could have known about the same, coupled with the fact that as per the 'point out' panchnama (Exh 11), the panchnama of the scene of offence is also made from where the dead body of the deceased was found. He therefore, submitted that as per testimony of Nutan, P.W. 1, when the deceased was last seen together with the accused and also the recovery of her articles were made at the instance of the accused for which the discovery panchnama is also made and the panchmama regarding the scene of offence is also made from where the dead body was recovered, clearly establishes the case of the prosecution.

3.3. Learned A.P.P. submitted that it is required to be noted that Nutan, P.W. 1, had seen one person who had offered sugarcane to deceased Rani asking her to sit on his bicycle and took her away. The learned A.P.P. submitted that Nutan, P.W. 1 in her deposition has also stated that she along with her friend tried to follow that person, but they were threatened by him (accused). The learned A.P.P. submitted that is why in the Test Identification parade in presence of the Executive Magistrate, Nutan has identified the accused.

3.4. The learned A.P.P. also submitted that though it is a case of circumstantial evidence, the chain of events clearly establish the involvement of the accused in the offences alleged.

3.5. The learned A.P.P. submitted that before elaborating on these aspects with further details, another relevant point which is required to be considered is whether the accused was represented by a lawyer and whether sufficient opportunity of representing his case by providing legal aid was given. For that purpose, referring to the material on record and the evidence, he pointedly referred to Exh. 17, which is a purshis given by the accused, wherein he has declined to have such assistance. He submitted that initially he had engaged one lawyer Mr. Makwana, and thereafter, recording of evidence had started and in fact a few material witnesses were examined, and thereafter, when the lawyer for the accused gave an application to retire he was specifically asked with regard to legal aid and thereafter when he refused to have such legal aid the matter proceeded. Thereafter, legal aid was provided, and therefore, it cannot be said that the accused was not represented properly or any opportunity of representing his case was denied by not offering legal aid.

3.6. The learned A.P.P. submitted referring to the judgment of the Hon'ble Apex Court in the case of Suk Das and Anr. v. Union Territory of Arunachal Pradesh reported in : AIR 1986 SC 991, that though right to legal aid is an integral part of Article 21, but in the case before the Hon'ble Apex Court, the accused was not informed about his right and whether he desires to avail of any legal aid, and therefore, observations have been made. However, in the facts of the present case, as reflected from the purshis (Exh. 17) and the rojkam, the accused was represented initially by his own lawyer. Thereafter, he was offered legal aid but he declined by purshis (Exh. 17) and thereafter, finally, again he was represented by a lawyer. For that purpose, the learned A.P.P. also referred to page 59 of the paper-book to establish that he had refused any such legal assistance. Therefore, the learned A.P.P. submitted that any such argument that the accused was denied any opportunity of being represented by a lawyer or by providing legal aid is contrary to record. He also clarified this aspect in response to the query by the Court at the first instance as to whether the legal aid was sought to be provided to the accused or not.

3.7. Learned A.P.P. Mr. Desai also referred to the complaint/F.I.R., Exh. 26 (p. 78) and also the 'janvajog' entry at Exh. 34. The learned A.P.P. also specifically drew the attention of the Court to the fact that the complainant father is not examined as he had expired, but the mother has been examined. He also referred to the testimony of Pruthvisinh Jadeja, P.W. 7 who had recorded the F.I.R.

3.8. The learned A.P.P. referred to the deposition of Nutan, P.W. 1 who is a child witness and submitted that her evidence is very natural. It was submitted that she has specifically stated that she was studying with the deceased in the school. She was in Std. 2. She also stated that in the afternoon when they had recess, one person had offered the deceased Rani a sugarcane asking her to sit on his bicycle. Thereafter, she has also stated that she, one Farida, and her sister ran after the said person, but they were threatened that if they followed he would get them arrested by the police, and therefore, they stopped following the said person and went to the school. The learned A.P.P. stated that she has identified the accused before the Court and also in the identification parade. The learned A.P.P. submitted that in the identification parade she had identified the accused and she has been very specific that when the police asked her whether she can identify that person, she had identified the said person. He referred to the exact version in vernacular Gujarati,

The learned A.P.P. submitted that this is a most relevant evidence of the witness who has stated naturally and who had seen the accused taking away the deceased, and therefore, as per her version the deceased was last seen together with the accused.

3.9. The learned A.P.P. also referred to the deposition of the panch witness Iliyasbhai Adambhai at Exh. 10, who is the panch witness for the 'point out' panchnama. The learned A.P.P. submitted that his deposition and the 'point out' panchnama at Exh. 10 may not be the only evidence. Certain inculpatory statements may not be admissible but this panchnama can always be referred to as a corroborative piece of evidence which corroborates the deposition of the other witnesses particularly the panch witness Iliyasbhai Adambhai at Exh. 10. The learned A.P.P. submitted that as it is a case of circumstantial evidence, the 'point out' panchnama, the place of scene of offence where the offence is said to have been committed has been corroborated by the other evidence and circumstances which would be relevant to decide about the link or the chain.

3.10. He also referred to the testimony of I.O. Manishkumar H. Thaker, P.W. 8 (Exh. 30) and referring to his deposition the learned A.P.P. emphasized that he has clearly stated that initially it was the 'janvajog' entry/yadi which the father had given stating that the victim has not returned home and she is missing. Thereafter, when the accused was arrested in connection with another offence and when it came to the notice of the father of the deceased, when the accused had taken the I.O. to the place where he is said to have committed the offence and on that basis further investigation was made and discovery panchnama regarding the articles of the deceased have been made and the articles were recovered at the instance of the accused. The learned A.P.P. submitted that this fact, which could be within the knowledge of the accused only, as regards the articles of the deceased are concerned and which could be disclosed by him only. For that purpose, he referred to Exh. 20 as well as the panchnama (Exh. 31), which is a panchnama of identification of belongings of the victim, namely, her school bag, tiffin box with endorsement 'Gajanand'. These two things which have been discovered at the instance of the accused have been identified by the father of the deceased that these are the articles of deceased Rani and the learned A.P.P. also pointed out that 'Rani' is also specifically written on the back.

3.11. The learned A.P.P. also referred to the impugned judgment and referring to Para 15 with regard to appreciation of evidence of the child witness Nutan at Exh. 6 and submitted that the learned Judge has carefully scrutinized the evidence and has rightly accepted her evidence as a natural and reliable evidence.

3.12. The learned A.P.P. referred to Para 18 of the impugned judgment where the learned Judge has discussed about the circumstantial evidence and he pointedly referred to the observations in this Para with regard to the recovery of articles of the deceased, namely, the school bag, lunch box, etc., and submitted that this evidence and discussion about the establishment of link in the circumstantial evidence is just and proper, and it clinches the issue and completes the chain of events to establish the guilt of the accused. In this regard, learned A.P.P. Mr. Desai again referred to Para 18 of the judgment and submitted that though a panchnama is a corroborative piece of evidence and the panchnama or the 'point out' panchmama about the scene of offence, where inculpatory part of the accused is said to have been recorded in the form of confession even if not considered, the fact remains that the visit of the accused at different places is shown and the recovery of the dead body of the deceased victim from the nearby place is a circumstance which connects the accused with the incident. The learned A.P.P. also submitted that the dead body of the deceased victim was recovered from the same place and it has been pointed out by the accused as reflected in the 'point out' panchnama. He further emphasized that this is also supported by the medical evidence.

3.13. The learned A.P.P. referred to the deposition of Dr. Basantkumari Narayan Behra at Exh. 18 and submitted that she has clarified about the state of condition of the dead body and that the marks of injury may not be visible after 24 hrs. However, it is required to be appreciated from this evidence that, 'even if the hymen may not have been torn, still attempt could have been made to rape the victim when she was unconscious,' and that the accused having realised that later on she may disclose decided to kill her. The learned A.P.P. strenuously submitted that to avoid such an eventuality, the deceased victim was killed. This part is also supported by the medical evidence as the doctor has clarified that the deceased might have been alive and was killed by pushing her in the water. For that purpose, the learned A.P.P. referred to the medical evidence and deposition of the doctor. He pointedly referred to Exh. 42 which is a viscera report which states that 'Diatoms found in sample mark-4 and sample mark-5 were to a great extent similar'.

3.14. Therefore, the learned A.P.P. submitted that as the accused is last seen together with the deceased which has been established by the evidence of eye-witness Nutan, P.W. 1 who has also identified the accused both in identification parade as well as in the Court, there is no question of any mistaken identity and the learned Judge has referred to this aspect in the judgment which cannot be said to be erroneous.

3.15. Further, learned A.P.P. Mr. Desai submitted that the appreciation of evidence of the child witness has been carefully considered by the Court below. He submitted that the evidence of a child witness could very well be relied upon, if it is found to be trustworthy. The learned A.P.P. also submitted that there is no reason for the child witness to falsely implicate the accused, and therefore, if her evidence is found to be natural and reliable, the same cannot be brushed aside and the Court below has, while scrutinizing the evidence, carefully examined this aspect and rightly relied upon the evidence of Nutan, P.W. 1, who is a child witness. He referred to and relied upon a judgment of the Hon'ble Apex Court in the case of Kishore Eknath Nikam v. State of Maharashtra reported in : 2007 Cri.LJ 1007 (SC) in support of his submission.

3.16. The learned A.P.P. also referred to the further statement of the accused recorded under Section 313 of the Cr.P.C. and submitted that the accused has admitted in his further statement that he had taken away the deceased victim Rani, that by itself is sufficient to establish the guilt of the accused. If he had taken away the deceased, as admitted in the further statement under Section 313 of Cr.P.C., it lends support to the deposition of the child witness Nutan and makes her evidence more credible and reliable. If the accused had taken away the deceased victim Rani from where she was last seen together, there is no explanation coming forth as to what had happened thereafter. It is on record that she did not return home and her dead body was found. Learned A.P.P. Mr. Desai submitted that as per the evidence on record it was the accused who was last seen together with the deceased victim as stated above, which cannot be disputed, and thereafter, the dead body of the deceased was found, what happened thereafter has to be explained by the accused only more so in light of other circumstances, in the form of discovery of the articles of the deceased victim at the instance of the accused for which discovery panchmama (Exhs. 31 and 32) has also been made, which clearly go to establish the guilt of the accused.

4. Learned Advocate Mr. P. R. Shukla for the respondent-accused referred to the material and evidence at length and submitted that though it is a case of circumstantial evidence and though capital punishment has been awarded for the offence under Sections 302, 376, the accused has not been properly represented by a lawyer, and therefore, he has been denied the fair opportunity of representing his case at the trial, and therefore, it should be remanded. Learned Advocate Mr. Shukla, in support of his submissions, referred to Exh. 45 (p. 109) and submitted that Advocate Mr. A. M. Mehta was appointed by the accused. But then he retired and the evidence was recorded wherein the accused was not represented by a lawyer. Further, he has stated that again a learned Advocate was appointed on 3-10-2007 and on the same day, the further statement was recorded. Thereafter, the matter was kept on 4-10-2007 . He submitted that once the further statement of the accused was recorded on 3-10-2007, it was not necessary to keep the matter on 4-10-2007.

4.1. He also referred to the evidence and particularly the testimony of Nutan, P.W. 1 at Exh. 6 and submitted that her evidence requires a closer scrutiny and the Court below has failed to appreciate that she was a child witness and she could have been tutored. It was strenuously submitted that in fact she has also admitted that she has identified the accused as per the suggestion of the police. For that purpose, he referred to the testimony deposition of Nutan at Exh. 6 and referred to the examination-in-chief referring to the identification parade. He also referred to the cross-examination and pointedly referred to following part:

4.2. Learned Advocate Mr. Shukla submitted that it is required to be appreciated that the 'janvajog' entry was given by the father of the deceased at Bhavnagar 'D' Division Police Station on 6-1-2003, and after a long lapse of time when the accused was arrested for some other offence, at that time the F.I.R. has been registered for the present case/offence being C.R.-I No. 60 of 2005 on 2-4-2005, that is, after 2 years and 6 months. Therefore, learned Advocate Mr. Shukla for the accused submitted that the judgment and order passed by the Court below is contrary to principles of criminal jurisprudence and deserves to be quashed and set aside.

4.3. He also submitted that the trial Court has also failed to appreciate the testimony of witnesses in proper perspective and manner, and thereby, committed a grave error. In support of this contention he has referred to the testimony of Nutan, P.W.I and submitted that there is grave error in appreciating the evidence of the child witness when she has specifically stated and admitted in the cross-examination that she identified the accused as she was told by the police. He therefore, strenuously submitted that this is required to be considered in light of the fact that when the accused is arrested for other offence, the F.I.R. for the present case has been registered after a delay of 21/2 years and merely on the basis of the say of the child witness the accused is sought to be involved or connected with the offence alleged against him in the present case. Learned Advocate Mr. Shukla submitted that this is a case of circumstantial evidence and considering the fact about the identity and the identification parade and the manner in which it was held, it is highly doubtful and without any other evidence, merely on the basis of the evidence of the child witness and the so-called corroborative piece of evidence in the form of panchnama, the accused could not have been convicted. He further emphasized and submitted that the complainant-father of the deceased has also not been examined as he has expired.

4.4. Learned Advocate Mr. Shukla also referred to Section 256 of the Cr.P.C. and submitted that as the complainant has not been examined, the F.I.R. itself cannot be said to have been established or proved, and therefore, on death of the complainant, the accused ought to have been acquitted as the prosecution case could not have proceeded further.

4.5. Learned Advocate Mr. Shukla submitted that the contents of the F.I.R. lodged for the present case are different from the version stated by the complainant-father in the 'janvajog' entry. He had given 'janvajog' entry earlier in point of time on 6-1-2003 before the Bhavnagar 'D' Division Police Station, and it is on the basis of the subsequent arrest of the accused in another case, the F.I.R. is lodged against the accused for the present case on 2-4-2005.

4.6. He therefore submitted that as the complainant father could not be examined as he had expired, this aspect could not be clarified and the complainant could not explain for the delay in filing the complaint nor the defence had an opportunity of cross-examining him on this aspect, and therefore, on this ground alone the complaint could not have been accepted and the benefit of doubt ought to have been given to the accused. He emphasized and submitted that the Court below ought to have considered the Issue No. 3 as to whether the complaint is proved without the benefit of examining the complainant-father, and the answer has to be negative, and therefore, the prosecution case cannot be said to have been established against the accused beyond reasonable doubt.

4.7. He further submitted that reliance is placed on the testimony of the child witness Nutan, P.W. 1 at Exh. 6 so far as the theory of last seen together is concerned. He submitted that the complaint given by the complainant-father Nandubhai Ranadive is different. He has also not stated clearly before the in-charge Police Station officer, Bhavnagar and while giving the 'janvajog' entry he had only stated that one person has kidnapped his daughter Rani on 6-1-2003 during the recess time from her school and taken away on bicycle.

4.8. Therefore, the crucial or the material evidence of the complainant who had given the complaint and his version is also not properly brought before the Court and the entire case of the prosecution has been based on circumstantial evidence and to support such a case on circumstantial evidence, heavy reliance has been placed on the deposition of Nutan, P.W. 1, who is a child witness. Again, learned Advocate Mr. Shukla strenuously submitted that the Court below has erred in appreciating and scrutinizing the evidence of the child witness.

4.9. Learned Advocate Mr. Shukla has also referred to the discovery panchnama at Exh. 20 as well as Exhs. 31 and 32 and F.I.R. at Exh. 26 and submitted that even this panchnama would not by itself be sufficient to establish the guilt of the accused. He has strenuously submitted that mere recovery of some articles at his instance by itself would not be sufficient to hold him guilty for the offence under Sections 376 and 302. He strenuously submitted that even if it is accepted that articles were discovered at the instance of the accused for which panchnama is made, at the most, it could lead to an inference that he had those articles in his possession like he might have stolen or he might have found it lying there. He submitted that an inference could not be drawn for the alleged offence under Section 376 or 302 of I.P.C. merely on the basis of such discovery panchnama.

4.10. Further, learned Advocate Mr. Shukla for the accused referred to Exh. 11 which is a 'point out' panchnama dated 2-4-2005 and also referred to Exh. 20 which is a discovery panchnama dated 4-5-2005 and submitted that if the 'point out' panchnama is made on 2-4-2005 whereby the accused is said to have shown the place of the alleged offence, then the recovery or discovery at his instance could not have been made on 4-5-2005. Therefore, learned Advocate Mr. Shukla strenuously submitted that the accused is roped in only when he has been arrested in connection with another offence and he has been falsely implicated for the alleged offence in the present case. Learned Advocate Mr. Shukla submitted that this is a case of circumstantial evidence and there are no strong circumstances pointing to the guilt of the accused besides the chain is also not complete at all.

4.11. Learned Advocate Mr. Shukla referred to and relied upon a judgment of the Hon'ble Apex Court in the case of Manjunath Chennabasapa Madalli v. State of Karnataka reported in : AIR 2007 SC 2080 and submitted that as observed in this case the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.

5. In view of the rival submissions and on appreciation of evidence, it is required to be considered whether the present case regarding the confirmation fulfills the criteria laid down by a catena of judicial pronouncements of the 'rarest of rare' case. Moreover, as emphasized by learned Advocate Mr. Shukla for the accused, since it is a case of circumstantial evidence whether the chain of events can be said to have been established to justify the conviction of the accused for the alleged offences or whether it calls for an interference with the judgment and order recording the conviction for the offence under Sections 376, 266 and 302 of I.P.C.

5.1. Before scrutinizing and appreciating the material and evidence on record, one important aspect which has been highlighted and pressed into service by learned Advocate Mr. P. K. Shukla for the accused is that the accused had not been provided the assistance of a lawyer and as he was not represented by a lawyer, he has been denied the right to represent his case, meaning thereby, that he has been denied a fair trial, and therefore, the trial itself stands vitiated.

5.2. This aspect has been much focused and this Court is conscious of this aspect which is having a bearing on the right of the accused to get represented by a lawyer more so in such a serious case wherein offences are under Sections 376, 302 etc., and also the right of a person under Article 21 which has been spelt out and dealt with in a catena of judicial pronouncements. Therefore, the evidence and the material including the rojkam are closely scrutinized and appreciated.

5.3. It is evident that the accused requested for legal aid on 23-2-2006 before the Court below, and therefore, the matter was adjourned to 1-3-2006. On 1-3-2006, again the matter was adjourned on 14-3-2006, and thereafter, to 21-3-2004, 3-4-2006, 18-4-2006, 2-5-2006, 13-5-2006, 13-6-2006 and 10-7-2006. On 24-7-2006 the accused engaged his own lawyer Mr. Ramesh B. Makwana and his vakalatnama was filed, and therefore, the matter was kept for framing of charge on 7-8-2006. Thereafter, the accused remained present with his lawyer on 5-9-2006, 19-9-2006, and also thereafter, and ultimately, the charge was framed on 6-1-2007 where the accused remained present with his lawyer and the matter was kept for recording of evidence. After few adjournments, the evidence of the first witness Nutan, P.W. 1 was recorded on 23-1-2007 at that time the accused was represented by a lawyer and his lawyer (Mr. R. B. Makwana) cross-examined the main witness for the prosecution, minor Nutan, who was present when the accused is said to have taken away the deceased Rani, the daughter of the complainant, alluring her with sugarcane during the recess. Thereafter, another witness is also examined on the same day, namely, Dilipkumar Kantilal Rathod, Executive Magistrate, who too was cross-examined by learned Advocate Mr. R. B. Makwana for the accused, he is the witness for proving the panchnama of the identification parade at Exh. 8. Thereafter, the matter was adjourned from time to time. On 27-4-2007, it was adjourned due to non-availability of the lawyer of the accused. Similarly, on 11-5-2007 also it was adjourned on the same ground. Thereafter, on 20-6-2007 again another witness, Iliyasbhai Adambhai Saiyed, P.W. 3, was examined and his evidence was recorded in presence of the accused and his lawyer. This witness is also cross-examined by learned Advocate Mr. Makwana for the accused. Thereafter, on 30-8-2007 Dr. Basantkumari Behra, P.W. 4, was examined and her evidence was recorded on 30-8-2007, the learned Advocate for the accused passed a purshis (Exh. 17) seeking permission to retire from the matter. In purshis (Exh. 17) facts stated by the accused that he does not desire to engage a legal aid Advocate are stated. The matter then proceeded further. Another witness, Arif, P.W. 5, was examined on 31-8-2007 and it is recorded that on inquiry by the Court the accused has stated that he does not desire to cross-examine. Thereafter, Ashokkumar Trivedi, P.W. 6, is examined and the learned A.P.P. passed a purshis for closing the evidence and the matter has been kept for recording further statement and it was adjourned to 3-10-2007. On 3-10-2007, learned Advocate Mr. A. M. Mehta passed a purshis (Exh. 46) that he has been appointed as a legal aid Advocate for the accused by the Court, and therefore, he has remained present. The said order dated 3-10-2007 is at Exh. 45. Thereafter, the further statement of the accused has been recorded on 3-10-2007. The matter was kept for argument on the next day.

5.4. Therefore, the submission made by learned Advocate Mr. Shukla for the accused with much emphasis relying on a judgment of the Hon'ble Apex Court in the case of Suk Das and Anr. v. Union Territory of Arunachal Pradesh (supra), about denial of opportunity, and therefore, the whole trial is vitiated is misconceived. In fact, as discussed hereinabove, it is evident from the proceedings that the accused was represented by a lawyer of his choice when two-three important witnesses were examined. From the contents of the deposition of those witnesses the learned Advocate for the accused having realized the fate of the proceedings he did not remain present. Thereafter, the accused specifically declined to have the assistance of the legal aid Advocate. The Court below has also reflected this specifically when the recording of evidence of witnesses has taken place. If at all he had a second thought or he had that feeling that he is not given an opportunity, then, at that time he could have requested the Court to provide him legal assistance before proceeding. As he did not do that he cannot blow hot and cold. On one hand, the accused declined to have legal assistance and his lawyer also declined to appear. Not only that even after the witness was examined he did not say anything because he conveniently wanted to just watch the proceedings or delay the proceedings. The Court below was obliged to proceed with the matter more particularly when the witness had come, the Court could not have refused to examine.

5.5. Therefore, what the law obliges or provides is the opportunity for making an effective representation as a part of the concept of fair trial and after the opportunity is given, if one is not inclined, then no fault could be found with the proceedings.

5.6. Further, the reliance placed by learned Advocate Mr. Shukla on a judgment of the Hon'ble the Apex Court in the matter of Man Singh and Anr. v. State of Madhya Pradesh reported in : 2008 (9) SCC 542, to emphasise that when the lawyer appointed for the accused through legal aid was not present, the matter has to be remanded as it was considered as denial of opportunity. It is required to be mentioned that this judgment will have no application to the facts of the present case. In the case before the Hon'ble the Supreme Court, the lawyer provided by the legal aid had failed to appear resulting in denial of opportunity of effective representation and the High Court recorded the conviction under the N.D.P.S. Act, and therefore, the matter was remanded. However, in the present case, the facts are that the accused himself declined as initially he was represented by a lawyer engaged by himself. Thereafter, he was given an opportunity but he declined that, and therefore, the Court had no way but to proceed, and even thereafter, every time when the witness was examined he had the opportunity to request for legal assistance but he did not do so.

5.7. Learned Advocate Mr. Shukla submitted that it is a case of 'circumstantial evidence' and the chain which is required to be completed cannot be said to have been established, and therefore, the judgment and order recording conviction is erroneous.

5.8. For that purpose, learned Advocate Mr. Shukla for the accused referred to the impugned judgment and also the evidence and the testimony of the witnesses at length. He submitted that the Court below has failed to consider the complaint filed by the complainant after delay of 2 years and 6 months. It was submitted that there is no explanation for the said delay. The complaint was filed after about 21/2 years. The incident had taken place on 6-1-2003. Therefore, it would be fatal to the case of the prosecution if the delay is not explained. Learned Advocate Mr. Shukla has also submitted that the contents of the F.I.R. lodged by the original complainant Nandubhai Maneklal Ranadive (father of the victim) on 2-4-2005 are different than that of the 'janvajog' entry. Further, learned Advocate Mr. Shukla submitted that as the complainant-father has expired on 3-8-2005, the prosecution has not examined him, and therefore, the contents of the F.I.R. could not be said to have been proved or corroborated, and therefore, it could not have been made admissible in evidence. Learned Advocate Mr. Shukla, therefore, strenuously submitted that if the 'complaint' itself is not admissible in evidence, as the complainant could not be examined, the complaint remained not proved. The fact that there is a difference in the version stated in the 'janvajog' entry given by the deceased complainant and his F.I.R. at Exh. 26, the prosecution case could not proceed further and in any case the prosecution cannot be said to have established the charges against the accused beyond reasonable doubt.

5.9. Though, these submissions have been made with much emphasis, it is required to be appreciated that the law on this aspect is very clear and the Hon'ble the Apex Court has expressed, only a word of caution, while recording conviction in cases of circumstantial evidence.

5.10. As it is revealed from the evidence, particularly the testimony of Nutan, P.W. 1 (Exh. 6), who is a 'child witness', that the deceased victim and she had gone to the school and when they were going to the school after the recess at about 2-30 p.m. one person on the bicycle had come and allured the deceased offering sugarcane and had taken her on his bicycle carrier. This witness has further stated that she and Farida ran after the cycle and the person on the cycle threatened them - the two young friends of the deceased victim that if they followed, he would get them caught by the police, and therefore, they had stopped running behind him. This child witness has also identified the accused in the Court.

5.11. Another facet of the argument which has also been emphasized by learned Advocate Mr. Shukla for the defence as regards the identification parade and the identity of the accused is that it was not properly conducted and the accused was pointed out by the police. For that purpose, he has much emphasised, referring to the testimony of minor Nutan, P.W. 1 (Exh. 6) where she has admitted in her cross-examination that the police had asked her to identify 'this man'. Further, she has admitted that as she was informed by the police that the person who had taken away the victim is 'this man', and therefore, she had confirmed, which would imply that the identification parade was not properly conducted. Learned Advocate Mr. Shukla also referred to the panchnama of identification parade at Exh. 8 and submitted that though it has been stated that the accused has been identified, in fact, it is a mere show only because he was already shown to the witness, and therefore, such panchnama could not be relied upon in view of the testimony of this child witness, P.W. 1 (Exh. 6).

5.12. Though, this argument may sound appealing, but on little scrutiny, it is found to be devoid of any merits. A close scrutiny of the testimony of P.W. 1 (Exh. 6), who is a minor girl, a friend of the deceased victim, who was with her at the relevant time when they were returning to the school after recess and when the accused is said to have taken away the victim alluring her to give sugarcane, and therefore, her evidence assumes more significance. As P.W. 1 (Exh. 6) is a child witness, her evidence is also required to be appreciated with caution and at the same time merely because she is minor her evidence cannot be brushed aside if it sounds convincing and reliable.

5.13. Therefore, before placing reliance the Court has to satisfy itself about the understanding/intellectual capacity of the child witness, P.W. 1, Exh. 6. A close scrutiny of her testimony at Exh. 6 clearly reveals that she has narrated the incident stating that one person had allured Rani (deceased) offering her sugarcane when they were returning to the school after recess and had taken her away on his bicycle. In the cross-examination also, she has stated that she had talked to her mother and the parents of the victim. Much emphasis given on the so-called admission in the cross-examination is also required to be scanned properly. It is evident that she has stated in the cross-examination that, she was informed by the police that she has to identify the person, who had taken the victim. She has admitted and stated that, the police had asked her whether that was the person who had taken away Rani (deceased) and then she has confirmed by saying 'yes'. It is well-settled that the testimony of a witness is required to be appreciated not by picking a word here or there, and has to be read as a whole. The fact that this witness is a minor by itself should not be a ground to discard her testimony and keeping in light the observations of the Hon'ble the Apex Court in the case of Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra reported in : AIR 2008 SC 1460, her evidence is required to be appreciated. The Hon'ble Apex Court has observed:

The Evidence Act, 1872 (in short 'the Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States 159 US 523. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon....

The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored....

5.14. Therefore, in view of the testimony of the child witness, P.W. 1 (Exh. 6), the entire case with regard to circumstantial evidence is required to be appreciation with caution. In a catena of decisions, from : AIR 1952 SC 343, the principles which should guide and weigh with the Courts have been laid down which have also been referred to subsequently in later judgments including the judgment in the case of Ashish Batham v. State of Madhya Pradesh reported in : AIR 2002 SC 3206. The Hon'ble the Apex Court has observed that,

Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise....

5.15. The Hon'ble the Apex Court in a judgment in the case of Venkatesan v. State of Tamil Nadu reported in : AIR 2008 SC 2369, has observed that 'conviction for the offence of murder can be recorded or made on the basis of circumstantial evidence if the conditions precedent are satisfied'. The Hon'ble the Apex Court has referred to these conditions which have been laid down in earlier judgment in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in : AIR 1984 SC 1622, which are as follows:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

5.16. In this judgment, the theory of last seen together has also been discussed and the relevance of this has been appreciated. It has been observed, referring to the earlier judgment of the Hon'ble the Apex Court in the case of Ramreddy Rajesh Khanna Reddy v. State of A.P. reported in 2006 (10) SCC 172,

The last seen theory, furthermore, comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the Courts should look for some corroboration.

5.17. This aspect of 'last seen together' requiring further corroboration is sufficiently established inasmuch as the testimony of P.W. 1, Exh. 6, the child witness who was with the deceased victim having positively stated that the victim was allured by the accused and was taken away coupled with the fact of identification of the accused by this witness. Further, the last seen together theory has been further corroborated not only by the testimony of the child witness, P.W. 1 (Exh. 6), but also by discovery of the articles of the victim for which discovery panchnama under Section 27 of the Evidence Act has been made and produced at Exhs. 31 and 32. P.W. 8 Manishkumar H. Thaker in his testimony at Exh. 30 has stated that at the instance of the accused they had proceeded after he informed the police as to where he had kept the articles of the victim, that is, the school bag on which 'Rough & Tough' is marked (Exh. 31) and the tiffin box with marking 'Gajanand Chauhan' (Exh. 32) and one purse and the slate having marking 'Raja'. Further, the 'point out' panchnama is also made.

5.18. A useful reference can be made to a judgment of the Hon'ble the Apex Court in the case of Mohibur Rahman and Anr. v. State of Assam reported in : 2002 (6) SCC 715. It was a case of circumstantial evidence, where the dead body of the deceased was found on pointing out by the accused and the Hon'ble the Apex Court has observed:

Apart from the accused's having been last seen in the company of the deceased, there is evidence available to show that a day or two after the disappearance of the deceased he contacted the relations of the deceased and instead of revealing to them how and where he had departed from the company of the deceased, assigned an obviously false reason for the deceased being untraceable which reason was intended to set the mind of the relations thinking on different or imaginary tracks. The dead body cut into two pieces was recovered from two different place on the pointing out by the accused, the places where the two pieces were lying buried and no one else could have ordinarily gathered the knowledge of the pieces of the dead body having been buried unless pointed out by the deceased. It is true that the accused did not make any statement admissible under Section 27 of the Evidence Act nor has the discovery of dead body been in consequence of information received from the accused. Had it been so probably the authorship of burial of the dead body could have been attributed to the accused depending on the words in which the accused made the statement. Still recovery of the dead body on pointing out by the accused in the circumstances aforesaid leads to the inference that the accused had the knowledge of the place where the dead body cut into two pieces was lying buried. These three circumstances taken together, namely, the deceased last seen in the company of the accused, the accused giving a false explanation about the whereabouts of the deceased and the accused having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being subjected to deadly violence) being buried, coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances, is sufficient to fasten the liability of murder on the accused.

5.19. In the present case, the discovery has been made for which the discovery panchnama under Section 27 of the Evidence Act has been made to recover and discover the articles belonging to the victim, which have been discovered at the instance of the accused for which discovery panchnama at Exh. 20 as well as panchnama at Exhs. 31 and 32 are made. It is in light of this unimpeachable evidence pointing out to the guilt of the accused, when there is no explanation offered by the accused, that the chain is complete and the dead body which was recovered, also on the basis of the serological report of F.S.L. at Exh. 42 clearly establish that the victim was murdered and the dead body was thrown in the water. Therefore, the theory of accidental death of the victim minor girl is ruled out and the contention raised by the defence that she could have fallen in the water is misconceived.

5.20. The report at Exh. 42 refers to the 'diatoms with similarity found in the dead body'. Further, the medical evidence in the form of testimony of Dr. Basantkumari Behra, P.W. 4 (Exh. 18) also supports the prosecution case. This witness in her testimony at Exh. 18 has clarified about the state of condition of the dead body explaining that the mark of injury may not be visible after 24 hrs. and whether the hymen is broken or not cannot be said, but still while attempting to commit rape as the victim is a young child she may get unconscious.

5.21. Therefore, as rightly submitted by the learned A.P.P. that once having enticed away the victim with this motive, ultimately when he admitted to have committed the offence of rape and the victim gets unconscious as she was a minor child, the accused may have throttled her, and thereafter, thrown away the dead body so that it may appear that it was a case of accident. It is required to be appreciated that a possibility cannot be ruled out that in such circumstances once the accused having realised that after she regains consciousness if he had left her she would tell everybody and on her disclosing about the incident would create problem for him, and therefore, to do away with that the accused has throttled and killed the victim.

5.22. Moreover, the 'point out' panchnama is required to be considered in light of the testimony of P.W. 3 at Exh. 10, who is the panch witness for the 'point out' panchnama. The learned Advocate for the defence has stated that this could not be referred as it is inculpatory in nature. However, it is required to be appreciated that in such a panchnama though it may not be regarded as confession or inculpatory part as an additional evidence, but the exculpatory part which suggests or corroborates has to be considered and the testimony of this witness corroborates the circumstantial evidence about the place having been pointed out by the accused which would be a corroborative piece of evidence for the other evidences. It is also required to be appreciated that the dead body of the victim was recovered from near the place which was pointed out by the accused in the 'point out' panchnama.

5.23. Further, this aspect is also relevant while appreciating the evidence in light of Section 8 read with Section 106 of the Evidence Act. Section 8 of the Evidence Act reads as under:

8. Motive, preparation and previous or subsequent conduct: Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

whereas Section 106 refers to the burden of proving the facts especially within the knowledge and provide,

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

5.24. Therefore, in light of the discovery of the articles of the victim recovered by discovery panchnama at Exh. 20 as well as panchnama at Exhs. 31 and 32 at the instance of the accused under Section 27 of the Evidence Act would be a relevant fact established by the prosecution and the possession of such articles with the accused has to be explained by the accused and burden would be on the accused to explain as to how he came in possession of those articles.

5.25. Therefore, assuming for the sake of argument that the discovery of the articles made for which the panchnama is made at Exhs. 31 and 32 does not fall under Section 27 of the Evidence Act, even then the conduct of the accused will have to be considered in light of the provisions of Section 8 read with Section 106 of the Evidence Act. The submission made by the learned Advocate for the defence that the inculpatory part of the panchnama may not be considered, but the exculpatory part pertaining to recovery or discovery of the articles of the victim is a relevant part which has to be appreciated and it would be a relevant circumstance.

5.26. A useful reference can be made of the observations made by the Hon'ble the Apex Court in its judgment in the case of A.N. Venkatesh and Anr. v. State of Karnataka reported in 2005 (3) Crimes 231 (SC), wherein it has been observed in Para 9:

By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State : AIR 1979 SC 400. Even if we hold that the disclosure statement made by the accused appellants (Exh. P. 14 and P 15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the Investigating Officer and P.Ws., 1, 2, 7 and P.W. 4 the spot mazhar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A1 and A2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.

5.27. A useful reference can also be made of the observations of the Hon'ble the Apex Court in the case of Ganesh Lal v. State of Rajasthan reported in : 2002 (1) SCC 731, wherein, in a case of circumstantial evidence, the Hon'ble the Apex Court has considered the provisions of Section 114 as well as Section 106 of the Evidence Act. In that case, before the Hon'ble the Apex Court a 11 year old girl was raped, and thereafter, murdered and on the basis of the articles of the deceased victim, the Hon'ble the Apex Court discussed the issue in Paras 12 to 14. The relevant part reads as under:

Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case....

It has been further observed in Para 15 as under:

A review of several decisions of this Court, some of which we have cited hereinabove, leads to the following statement of law. Recovery of stolen property from the possession of the accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisfied....

The Hon'ble the Apex Court also referred to Section 313 of Cr.P.C. and it observed as under:

Ordinarily, the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do.

5.28. In the judgment of the Hon'ble the Apex Court in the case of Sanjay alias Kaka v. State (N.C.T. of Delhi) reported in : AIR 2001 SC 979, the aspect of discovery panchnama and Section 27 of the Evidence Act is discussed at length in Paras 19 to 22. Besides, there is also an observation with reference to the provisions of Section 114 of the Evidence Act as under:

There is no controversy that the statement made by the appellant Exh. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact means some concrete or material fact to which the information directly relates'.

The Hon'ble the Apex Court referring to its earlier judgment has observed and quoted that:

The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but it results in discovery of a fact it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in section. The decision of the Privy Council in Pulukkuri Kottaya v. Emperor AIR 1947 PC 67 : 1947 Cri LJ 533 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.

5.29. In the facts of the present case, the testimony of P.W. 8, (Exh. 30) would, therefore, be corroborating the prosecution case when he has stated in his testimony that in presence of two panchas the accused had shown the willingness for which panchnama of the first part was prepared, and thereafter, they had proceeded in the vehicle towards Kumbharvada where the accused had taken out the articles wrapped in a packet from a room and from the said packet the articles like tiffin box, school bag with mark 'rough and tough' which were of the deceased victim, were taken out. Further, there were other articles like anklet. The panch witness for the discovery panchnama, P.W. 5 in his testimony at Exh. 19 has stated that they were called by the police for making a panchnama and after the panchnama of the first part was made, they were taken to the house of the accused. The accused is said to have taken them to a house in the Kumbharvada and had taken out from a gunny bag a plastic bag consisting of the articles of the deceased victim like the school bag, slate, etc. and also the anklet which was put on by the victim, including the earrings put on by the victim. Further, articles like aluminium box with marking like 'Goswami Mayaben Natwargiri Bheedbhanjan Mahadev' and one another 'daftar' and a steel tiffin with marking 'Gajanand Chauhan' were recovered.

5.30. Therefore, the discovery panchnama at Exh. 20 which is corroborated by the testimony of panch witness, P.W. 5 (Exh. 19) together with the panchnama Exhs. 31 and 32 and the testimony of the P.W. 8, I. O., is required to be appreciated in light of the discussion made hereinabove and the provisions of the Evidence Act as well as the observations made by the Hon'ble the Apex Court in the case of A.N. Venkatesh and Anr. v. State of Karnataka (supra).

5.31. Therefore, the revelation made by the accused during the investigation may not be admissible, but the fact which is a relevant fact is proved or established in the form of recovery, discovery or any other relevant fact proved independent of other evidences would be a relevant circumstance or fact pointing to the guilt of the accused which can be considered as observed by the Hon'ble the Apex Court in the judgment in the case of A.N. Venkatesh and Anr. v. State of Karnataka (supra).

5.32. Therefore, it is required to be considered whether the chain regarding circumstantial evidence can be said to have been established and whether the circumstances can be said to have been proved beyond reasonable doubt to connect the accused with the offence and all the incriminating facts and circumstances incompatible with the innocence of the accused are established or not.

5.33. A useful reference can be made to the observations of the Hon'ble the Apex Court in the judgment in the case of Asraf Sk v. State of West Bengal reported in : AIR 2009 SC 271. In this judgment, the Hon'ble Apex Court has again emphasized and observed that:

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference or guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person..... The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab : AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

It has also been observed, referring to an earlier judgment of the Hon'ble the Apex Court in the case of C. Chenga Reddy and Ors. v. State of A.P. reported in : 1996 (10) SCC 193:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....

5.34. In this very judgment, the Hon'ble the Apex Court, referring to the earlier judgment in the case of Padala Veera Reddy v. State of A.P. and Ors. reported in : AIR 1990 SC 79, observed and quoted that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused'

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.

5.35. Reference is also made to a book by Sir Alfred Wills regarding circumstantial evidence and also other judgments laying down guidelines with regard to the case of circumstantial evidence and the appreciation of evidence.

5.36. Therefore, in light of these observations laying down the guidelines as regards the appreciation of evidence that the facts established should reveal that it is incompatible with the hypothesis of his innocence. In the facts of the present case, as discussed hereinabove, the theory of last seen together is proved with cogent and reliable evidence of the testimony of P.W. 1, who is a child witness, accompanying the victim when the victim was taken away by the accused when they were returning to the school. The discovery panchnama, Exh. 20, supported by the testimony of P.W. 5, Exh. 19, and also the panchnama at Exhs. 31 and 32 supported by the testimony of P.W. 8 and the recovery of the articles of the victim from the house of the accused coupled with the further evidence in the form of medical evidence establishes the link between the offence and the accused.

5.37. It is also required to be appreciated that though this Court is not concerned with the other cases, but a judicial notice has to be taken that the accused has been facing charge for similar offences in six other cases which have been highlighted by the learned A.P.P.. The modality is clearly established that he takes away the victim, threatens P.W. 1 who followed them saying that otherwise he would get them caught by the police. The said child witness, P.W. 1 in her testimony as well as in the identification parade panchnama, Exh. 9 identifies the accused, which in turn gets corroboration in the form of other evidence as discussed above.

5.38. Further, there is no explanation coming forth as regards the articles of the victim having been discovered from the house of the accused as to how he came in possession of these articles belonging to the victim. Therefore, if the victim was last seen together with the accused as per the testimony of P.W. 1, Exh. 6, and thereafter, the articles of the victim are found in possession of the accused and the dead body is recovered from a place near to the place shown by the accused as per the 'point out' panchnama, Exh. 11, would clearly establish that after she was taken away by the accused, he tried to molest her and as she was a minor girl, she got unconscious. However, having realised that once she regains consciousness she would reveal the entire story to others, and therefore, she has been done away with by throttling her and the dead body is thrown in the water. This hypothesis or the theory of the prosecution is corroborated by the medical evidence and testimony of Dr. Basantkumari Behra, P.W. 4, Exh. 18, who has made the post-mortem report Exh. 14 when the dead body of the victim was brought with the inquest panchnama. This doctor has stated that prima facie, it could be by drowning and the probable cause of death as mentioned in the post-mortem report, Exh 14, is drowning. However, it is also stated that the final opinion will be given after the receipt of chemical analyser report of viscera and diatom test report of sternum bone. Now, the report of the Biology Department of F.S.L. at Exh. 42 refers to the fact that the sample of mark-4 and mark-5 had similar diatoms suggesting that the deceased was first killed, and thereafter, it was thrown in the water. Therefore, the submission made by the learned Advocate for the defence that it cannot be said that the accused had committed the murder or had killed the girl, which is not established beyond reasonable doubt, is therefore, misconceived.

5.39. Taking into consideration the cumulative effect of the evidence, it establishes that she was taken away as per the theory of last seen together, discovery of the articles belonging to the victim from the house of the accused coupled with the testimony of other witnesses including P.W. 1 and the dead body having been found from a place near to the place of the accused, leads to the conclusion about the guilt of the accused. Assuming that the accused had thrown her in the water, still, it would be a case falling under Section 302 of I.P.C. when he has thrown the unconscious victim in the water.

5.40. Therefore, in light of the discussion and on re-appreciation of evidence, it cannot be said that the learned Addl. Sessions Judge has committed any error in recording the conviction of the accused for an offence under Section 302 as well as Section 201 of I.P.C. and it does not call for any interference by this Court with the conclusion and the findings recorded in the impugned judgment and order of conviction of the accused for offence under Section 302 as well as Section 201 of I.P.C.

5.41. However, on the aspect of punishment this Court is required to scrutinize the case in light of the settled principles laid down by the Hon'ble the Apex Court as to whether capital punishment could be awarded treating the case as the rarest of rare case.

5.42. It is well settled that even after conviction under Section 302 of I.P.C., capital punishment is awarded only when the case fulfills the guidelines with regard to the 'rarest of rare case' laid down by the Hon'ble the Apex Court in a catena of decisions. The learned Addl. Sessions Judge, referring to the aspect of sentence, has discussed and considered the gravity of the offence and has passed the order of capital punishment after recording the conviction for offence under Section 302 of I.P.C.

5.43. The learned Addl. Sessions Judge considered the aspect of gravity of offence in light of the fact that the deceased minor victim aged about 7 years has been enticed away by the accused, and thereafter, she has been raped for which an offence under Section 376 is also established and coupled with the conduct with regard to offence under Section 201 of I.P.C. the accused is awarded the capital punishment.

5.44. It is required to be appreciated that since this case is of circumstantial evidence and though conviction recorded for offence under Section 302 of I.P.C. based on circumstantial evidence is held to be established by the Sessions Court as well as confirmed by this Court and on re-appreciation of evidence, it cannot be said that the conclusion arrived at by the learned Addl. Sessions Judge recording conviction of the accused for offence under Section 302 even on circumstantial evidence can be said to be erroneous. At the same time, the moot question which is required to be considered and answered is whether it would fall in the category of rarest of rare case even accepting the case of the prosecution at the face value, and the answer has to be in the negative.

5.45. It transpires that the accused is charged with similar offence in other cases, but till the charge is established it cannot be a factor relevant for that purpose and the doctrine of proportionality in the sentence has to be considered.

5.46. Though, the learned A.P.P. has referred to and relied upon a judgment of the Hon'ble the Apex Court in the case of Kamta Tiwari v. State of M.P. reported in : AIR 1996 SC 2800, to emphasize that it was also a case of rape and murder of a minor girl aged about 7 years and on conviction of the accused, the death sentence was awarded and the Hon'ble the Apex Court had confirmed the judgment. The learned A.P.P. submitted that in that case also after strangulating the victim the body was thrown in the well to destroy evidence, thus the facts are similar in the present case.

5.47. However, in a judgment of the Hon'ble the Apex Court in the case of Dharmendrasinh @ Mansinh Ratansinh v. State of Gujarat reported in 2002 (3) GLR 2702, wherein also the accused killed two minor sons with dharia and though the offence was held to be proved against the accused, while referring to the aspect of punishment, the Hon'ble the Apex Court has not approved the death sentence even though the crime was observed to be 'heinous and unpardonable'. It has been observed, in Para 20:

Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society, but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. A number of factors are to be taken into account, namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future, and ultimately, as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck.

5.48. While this Court is conscious about the gravity of the offence, the doctrine of proportionality, which is also considered in at catena of decisions, has to be considered, and appreciated. The Hon'ble the Apex Court in a judgment in the case of Siriya @ Shri Lal v. State of M.P. reported in : AIR 2008 SC 2314, while considering the doctrine of proportionality, has considered the very aspect as to when leniency in the sentence is called for and has observed:

The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his 'Law in Changing Society' stated that, 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Nadu : 1991 (3) SCC 471.

5.49. The Hon'ble the Apex Court has in case of Machhi Singh v. State of Punjab reported in : AIR 1983 SC 957, while considering the aspect of extreme punishment of death penalty observed that death sentence must be imposed only when the life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of crime, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

5.50. Further, in case of Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in 2008 AIR SCW 5110, the Larger Bench of the Hon'ble the Apex Court observed:

relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh (supra) provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself.

The Hon'ble the Apex Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka (supra) observed, referring to the aspect of sentence, as under:

This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior Courts in their respective States.

5.51. Having regard to these observations and the doctrine of proportionality, this Court is of the considered view that while confirming the conviction for offence under Section 302 of I.P.C. read with Section 201 of I.P.C., the case does not fall in the category of rarest of rare case to invite the capital punishment as awarded by the learned Addl. Sessions Judge. At the same time, it is strongly felt that if the life imprisonment subject to the remission which will work out to 14 years, then the sentence in the present case would be grossly disproportionate and inadequate. We, therefore, take a reasonable course to expand the option as observed by the Larger Bench of the Hon'ble Supreme Court in case of Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka (supra).

5.52. We now conclude the matter as under and place on record a word of appreciation for the assistance provided by the learned Advocate for the defence as well as the learned A.P.P.

5.53. In the result, the following order is passed. Criminal Appeal No. 44 of 2008 filed by the accused hereby stands dismissed. However, conviction of the accused for offence under Section 302 read with Section 201 of I.P.C. is hereby confirmed. At the same time, the sentence for the offence under Section 302 of I.P.C, being the death penalty awarded by the learned Addl. Sessions Judge, is substituted with life imprisonment. The conviction for the other offences and the sentences awarded are hereby maintained and confirmed. The sentences are ordered to run concurrently.

5.54. We also direct that the period spent in jail by the accused during the trial be given as set-off. The Court also directs that the State Government shall not release the accused Koli (Makwana) Chhaganbhai Laxmanbhai from jail before expiry of 18 (eighteen) years by granting remission under Section 433A of Criminal Procedure Code. The rest of the order passed in respect of the muddamal by the trial Court is maintained.

5.55. Thus, the Reference made by the trial Court to confirm the death sentence as Confirmation Case No. 3 of 2007 hereby stands dismissed.