- (1.) This appeal has been preferred against the judgment and order dated 23.4.2010, passed by the High Court of Guwahati in Criminal Appeal No. 13(J) of 2010 rejecting Death Reference No. 1 of 2010 made by the Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati on 21.12.2009 in Sessions Case No. 309(K) of 2009, convicting the appellant under Sections 376(2)(f) and 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC'), sentencing him to death. The High Court commuted the death sentence of the appellant to life imprisonment, with a direction that the appellant would breathe his last in jail, and that he would not be given the benefit of remissions etc. under Sections 432 and 433-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.').
(2.) Facts and circumstances giving rise to this appeal are that: A. On 17.10.2007 at about 7.00 P.M., Sultana Begum Khatoon (PW.8), aged 12 years, was enjoying the celebrations of the festival of Durga Pooja alongwith her sister Sima Khatoon, aged 3 years, at the Nepali Mandir, Guwahati. The appellant was alleged to have been standing behind them at such time. After a shortwhile, Sultana Begum Khatoon (PW.8) noticed that her sister Sima Khatoon was missing, and she also happened to notice that the appellant had disappeared as well. Sultana Begum Khatoon (PW.8) thus began to look for her sister, and when she could not find her in the nearby areas, she went back to her house and informed her brother Gulzar Ali (PW.3) and her parents etc. of the said incident. B. Apin Dulal (PW.1) and Gulzar Ali (PW.3) therefore began to search for Sima Khatoon, and while doing so, they came across the appellant and asked him whether he had seen Sima Khatoon. The appellant allegedly demanded a sum of Rs.20/- to pay for his evening food, in lieu of showing them the place where Sima Khatoon could be found. Apin Dulal (PW.1) agreed to pay him the said amount and thus, the appellant pointed to a place by the side of a municipal canal. Apin Dulal (PW.1) and Gulzar Ali (PW.3) thus began to approach the said place, and at such time, the appellant ran away and boarded a bus. Apin Dulal (PW.1) chased him and managed to catch hold of him, forcing him to get off the bus. Apin Dulal (PW.1) and Gulzar Ali (PW.3) thereafter succeeded in locating the girl, who they found gasping, wrapped in a jute-sack (gunny bag). The mouth of the bag had been closed. Sima Khatoon was alive, but in a critical condition. She was then taken by her brother Gulzar Ali (PW.3) to the house. The appellant was also taken there. Sima Khatoon was taken to a Nursing Home, and then to the Guwahati Medical College where she breathed her last at about 1.30 A.M. i.e., in the intervening night of 17/18.10.2007. C. Father of the deceased Sima Khatoon approached the Paltan Bazar police station, where a report was endorsed only in the General Diary. After the death of Sima Khatoon, her father also lodged an FIR at the said police station on 18.10.2007. The appellant was taken to the police station by the relatives of Sima Khatoon, and he had thus been arrested on 17.10.2007 itself. D. The post-mortem examination of the dead body of Sima Khatoon was conducted by Dr. Pradeep Thakuria, who found various injuries on her body, including an injury to her vagina. However, the doctor has stated that the vaginal smears taken had tested negative for spermatozoa. E. The blood stained jute-sack in which the Sima Khatoon had been found, the blood stained underwear of the appellant, as well as the apparel i.e., frock of Sima Khatoon were taken into custody. It was noted that she was not wearing any undergarment at the said time. All the seized material objects were sent to the Forensic Science Laboratory, and the report received thereafter, revealed that the blood group of the blood found on the underwear of the appellant, was the same as the blood group of the victim, Sima Khatoon. F. After the conclusion of the investigation, a chargesheet was filed against the appellant under Sections 376(2)(f) and 302 IPC. As the appellant denied all charges, criminal trial commenced. G. In the course of the trial, the prosecution examined 10 witnesses in support of its case, and a large number of material objects were also exhibited. The appellant in his defence, denied his involvement in entirety. In his statement under Section 313 Cr.P.C., the appellant has stated that he was a resident of Kuch-Bihar (West Bengal), and that he had come to Guwahati three years prior to the incident, to earn his livelihood as a rickshaw puller. On the date of the said incident, when he had gone to the place of occurrence to answer the call of nature, he had found Sima Khatoon lying on the ground. When he returned from the said place, and while he had been waiting near the Nepali Mandir, Apin Dulal (PW.1) and Gulzar Ali (PW.3) had asked him whether he had seen one Sima Khatoon, and thus, he had taken them to the place where Sima Khatoon had been lying. He had then boarded a bus, but had been asked by Apin Dulal (PW.1) to get off the same, and many people had gathered there. They had beaten him severely, and had handed him over to the police, though he was completely innocent. H. After the conclusion of the trial, the learned Sessions Judge vide judgment and order dated 21.12.2009, found the appellant guilty for the offences punishable under Sections 376 (2)(f) and 302 IPC, and awarded him the sentence of death as has been referred to hereinabove. I. The appellant preferred Criminal Appeal No. 13(J) of 2010, which was heard alongwith Death Reference No. 1 of 2010. The High Court disposed of the said appeal vide its judgment and order dated 23.4.2010, and commuted the death sentence to life imprisonment, with directions as have been referred to hereinabove. Hence, this appeal.
(3.) Shri Ratnakar Dash, learned senior counsel, Amicus Curiae, has submitted that the same is a case of circumstantial evidence. The courts below, while convicting the appellant for the offences punishable under Sections 376(2)(f) and 302 IPC, have not followed the parameters laid down by this court that are to be followed for conviction in a case of circumstantial evidence. There are material discrepancies which go to the root of the case, and the courts below have simply brushed them aside, without giving any satisfactory explanation for not considering the same in correct perspective. The circumstances against the appellant, as per the case of the prosecution are, that he had demanded Rs.20/- to point out the place where Sima Khatoon had been found and immediately thereafter, he had run away from the said place and had boarded a bus. No other evidence exists to connect the appellant to the said crime. Furthermore, the trial court has put a large number of irrelevant and unconnected questions to the appellant under Section 313 Cr.P.C., while failing to put the most incriminating circumstance to the appellant, i.e. questions regarding the fact that the underwear of the appellant bore upon it, blood stains of the same blood group as that of the victim. Thus, the appellant had no opportunity to provide any explanation with respect to the same. It was not permissible for the courts below to rely entirely on such a circumstance, without verification of the same. The High Court was also not competent to issue a direction to the effect that the appellant should not be given the benefits available under Sections 432 and 433-A Cr.P.C. Therefore, the appeal deserves to be allowed.;