Judgment:
Debiprasad Sengupta, J.
1. This appeal is directed agianst the Judgment and order of conviction and sentence dated 25.9.2000 and 26.9.2000 respectively passed by the learned Additional Sessions Judge, 1st Court, Siliguri in Sessions Trial No. 1 of 1998 (Sessions Case No. 35(1) of 1998} thereby convicting the accused appellant under Sections 376/302/201 of the Indian Penal Code and sentencing him to suffer imprisonment for life for the offence under Section 302 IPC. No separate sentence was passed for the offence under Section 376 and 201 IPC.
2. The prosecution case, in short, is that on 9.1,98 the victim girl Sita Paswan aged, about 6 years, was playing in front, of a betel shop of Pappu Singh (P.W. 4) with her brother and at that point of time, the accused appellant came there and gave chocolate to the victim girl after purchasing the same from the shop of P.W. 4. The accused took the victim girl to his house and after committing rape on her, he murdered her. The deadbody of the victim was recovered from the room of the accused and after arrival of the police, an inquest was held and the deadbody was sent for post mortem examination. On completion of investigation, charge-sheet was submitted against the accused person and charge was framed under Sections 376, 302 and 201 of the Indian Penal Code,
3. To prove its case the prosecution examined as many as 19 witnesses while none was examined on behalf of the defence. Defence was a plea of innocence and false implication.
4. P.W. 1 Rampirit Paswan was the father of the victim and was the defacto-complainant. He stated in his evidence that about 8/9 months back his daughter while she was playing before the betel shop of P.W. 4 near Naxalbari Railway Station, the accused came there and offered her lozenges and asked her to follow him, the accused took the victim to his 'jhupri'. P.W. 1 searched for his daughter but she could not be traced out. He also asked the accused about his daughter but he denied to say anything. Then Pappu Singh (P.W. 4) disclosed to P.W. 1 that his daughter was taken by the accused appellant. P.W. 1 thereafter went to the house of the accused Akalu and found that the door was under lock and key. He looked inside the room and found the accused Akalu in a naked condition. The accused appellant refused to open the door and as such, P.W. 1 raised alarm. Many people assembled near the house of the accused and P.W. 1 entered into the room of the accused after opening the split bamboo wall of the room and found that the deadbody of his daughter was concealed by the accused under the heap of straw. As per his dictation, a complaint was written by P.W. 2 and on such complaint, FIR was registered. P.W. 2 is the scribe of the FIR. P.W.3, maternal grand-father of the victim stated in his evidence that on the date of incident, the victim girl was playing with her brother near a betel shop of Naxalbari Railway station, when the accused called the victim girl after offering her a chocolate and took her with him to his house. This witness saw the accused to offer chocolate to the victim girl at about 8.00 P.M. P.W.4 Pappu Singh was the owner of the betel shop. He deposed that on the date of incident while victim Sita Paswan was playing with her brother near his pan shop, accused Akalu came there and took Sita Paswan on his lap after offering two chocolates. He could not say as to where accused Akalu proceeded along with Sita as he was busy in his shop. He further stated in his evidence that the parents of Sita came to him and he narrated the incident to them. At about 10.00/10.30 P.M. on the same night he came to know that the deadbody of Sita was found in the room of accused Akalu. On hearing the shout he proceeded to the place and found the deadbody of Sita Paswan covered under straw in a naked condition. Accused Akalu was also found in a naked condition. P.W. 5 Ramprasad Paswan corroborated P.W.4 and he stated that he along with P.W. 1 searched for the victim and at about 10.00 P.M. on hearing a shout he arrived near the house of accused Akalu and found that the victim was lying dead under a heap of straw in a naked condition. People assembled at the place of occurrence having torches in their hands. Police came there and took the body of the victim. P.W. 6 Shefali Pal found the victim in the company of the accused for the last time in the pan shop of P.W.4, She fully corroborated P.W. 4 and deposed that the accused Akalu Paswan purchased two chocolates and he took victim Sita with him to his house. She stated that the mother of the victim made search for Sita and she came to know from P.W.3 that accused Akalu took Sita with him. They also searched for the victim Sita. Many people assembled in front of the house of the accused and the door of the room was found closed from inside. At first, the accused Akalu refused to open the door and as such the door was broken and they entered into the room. They found the victim girl lying dead covered under straw in naked condition. Accused Akalu Paswan was also found in the same room. P.W. 7 Biru Paswan was a post occurrence witness and he came to the place of occurrence after hearing the shout and found the deadbody of the victim in naked condition. Accused Akalu was also found in a naked condition in the same room. P.W. 8 also corroborated P.W. 7 as regards search for the victim and finding the deadbody of the victim in the room of accused Akalu. P.W.9 is the mother of the victim and she stated in her evidence that on the date of incident her daughter Sita was playing near a pan shop at the railway station in the evening. Her daughter did not return to the house till 8.30 P.M. and as such she started searching for her daughter. She along with others went to the house of accused Akalu Paswan and found the door of the room was closed. She along with others requested the accused Akalu to open the door but he refused. So the door was broken, open by the people who assembled there and after entering into the room she found her daughter Sita dead and she was lying under straw in a naked condition and her wearing apparels were found by the side of her deadbody. The accused Akalu was also found in naked condition inside the same room.
5. P.W. 10 A.S.I, of Police had been to the place of occurrence and found that the accused Akalu was surrounded by 100/150 people. The door of the room was locked from inside which was broken and deadbody of the victim girl was found in naked condition. He took the accused to the police station. P.W. 11 was the S.I. of Police of Naxalbari P.S. and he received the telephonic information from P.W. 2 and recorded the same in the G.D. The Officer-in-Charge of Naxalbari P.S. and other officers left for the place of occurrence, P.W. 12 was the Officer-in-Charge of Naxalbari P.S. and he received a telephonic information from one Shyam Mukherjee (P.W. 18). Arriving at the place of occurrence, he found that the house of the accused Akalu was surrounded by a group of people and the door was locked. Thereafter he opened the split bamboo wall and found accused Akalu in the room wearing under-pant and the deadbody of the minor girl was also found in the same room in a naked condition wrapped with straw and kantha. P.W. 13 was a police constable, who was a formal witness. P.W. 14 Hariram Mondal was an employee of Railway and on request by P.W. 1 he supplied a torch light to P.W. 1 for the purpose of searching his daughter. P.W. 14 also accompanied P.W. 1 to search for the victim. This witness also corroborated other witnesses on vital aspects, P.W. 15 was the grandmother of the victim and she also corroborated other witnesses. She stated that when Sita was found missing, they asked Akalu Paswan about Sita but Akalu said that he did not know the whereabouts of Sita. Thereafter many persons assembled near the house of accused, who was also in the same room. One torch light as brought from Hariram Mondal (P.W. 14) for searching out missing Sita Paswan. After entering into the room of the accused by breaking open the split bamboo wall, the deadbody of victim Sita was found in the room of the accused and the same was covered with heystack. P.W. 16 was the autopsy surgeon, who held post mortem over the deadbody of victim Sita and found the following injuries:-
1) Crescentic nail marks, 4 such over the right side of mid line neck measuring 1/6' x 1/4' at the level of hyoid bone and two such on the left side of hyoid bone brown in colour.
2) Crescentic nail marks - two such - 1/6' x 1/4' over the right side neck at the level of hyoid cartilage 2' away from the mid line neck,
3) Labia, minora dialated and swollen.
4) Labia majora dialated and swollen.
5) Hymen was ruptured.
6) Bruised vaginal wall at 5 o'clock and 7 o'clock position measuring each 1/2' x 1/4' with evidence of fant discharge per vagina.
7) On deep dissection of neck there was contusion of thyroid cartilage and inward compression sub luxation of hyoid cornu both sides.
6. Death, in his opinion, was due to the effects of manual strangulation, which was ante-mortem and homicidal in nature along with the evidence of sexual assault prior to strangulating. P.W. 17 was the Senior Scientific Officer-in-Charge of Regional Forensic Science Laboratory at Jalpaiguri. P.W. 18 Shyam Mukherjee informed the police over telephone. He stated in his evidence that on the date of incident at about 8.00/8.30 P.M. Rampic it Paswan father of the victim came to his house and reported that victim Sita was not traceable in spite of search. After sometime they came to P.W. 18 again and reported that they saw the minor girl in the house of accused Akalu and requested him to go to the house of accused with them. This witness had been to the house of accused Akalu and found accused in naked condition and something was kept covered under gunny bag and straw in the room of accused Akalu. He saw the accused and the covered thing by flash of torch light. This witness thereafter went to the house of one D.P. Bhowmick and from there he informed Naxalbari Police Station over telephone. P.W. 19 Subimal Sarkar was the Investigating Officer of the case and on completion of investigation, he submitted charge-sheet.
7. It is argued by the learned Advocate of the appellant that most of the P.Ws. are related to the deceased and evidence of such witnesses should not be relied upon. But in our considered view such contention cannot be accepted. It is true that P.Ws. 1 and 9 are the parents of the deceased and P.Ws. 3, 5, 8 and 15 are related to the deceased but their evidences cannot be discarded only on that ground. There is nothing in the evidence to show that the said witnesses had any enmity with the accused to implicate him falsely in the present case. It is now well-settled that evidence of a witness cannot be discarded merely on the ground that he is related to the deceased. Those P.Ws. as referred to above have been cross-examined at length but nothing infirm was elicited from their evidence to cast even a slightest doubt on the veracity of such witnesses. The next argument advanced by the learned Advocate of the appellant is that the original G.D. Book was not produced in Court, but in our considered view, such non production of the G.D. Book does not affect the prosecution case in any manner. The G.D. Entry is always made in carbon process. In the present case, the original page of the G.D. was made exhibit. The learned Advocate of the appellant next argues that the neighbours were not examined in the present case and the scribe of the FIR and the brother of the victim namely Krishna Paswan were also not examined. According to the learned Advocate of the appellant non-examination of such vital witnesses affects the very core of the prosecution case. But we are unable to accept such contention. Non examination of some witnesses does not matter if the witnesses examined unfold the prosecution case fully. In the present case, we find that P.Ws. 4, 6, 7 and 14, who supported the prosecution case, were all neighbours and they did not bear any malice towards the accused and there was no reason as to why they should implicate the accused falsely in the present case. So far as the non-examination of brother of the deceased is concerned, we think that the same is not at all vital for the prosecution. The victim herself was a girl of six years. So her younger brother must have been aged 3/4 years. So non-examination of a child witness of such a tender age does not affect the prosecution case when there are evidence of other witnesses, which is sufficient to prove the guilt of the accused. In course of trial one key was produced in Court. It is submitted by the learned Advocate of the appellant that no key was seized by police from the place of occurrence and as such production of such key in Court creates a doubt as to the genuineness of the prosecution story. From the seizure list, which was made exhibit, we find that the chain and padlock were seized by the police. So it was probable that though the padlock was with the key, no separate, seizure was shown in respect of the key in the seizure list. In any event, we are of the view that this is not at all vital and it does not affect the prosecution case at all.
8. The learned Advocate appearing for the State submits that the victim was last seen in the company of the accused by P.Ws. 3, 4 and 6. The dead body of the victim was found in a naked condition covered with straw and the accused was also found in the same room in naked condition. The wearing apparels of the victim were also found in the said room. There is also corroborating medical evidence to show that the victim was raped and thereafter she was murdered. The learned Advocate of the State further points out that in his examination under Section 313 of the Code of Criminal Procedure, the accused himself stated in his answer to question No. 29 that the deadbody of the victim Sita was found in his room. This is a case in which there is no eyewitness and the case is entirely based on circumstantial evidence. According to the learned Advocate of the State, the chain of circumstances is complete and the learned Judge rightly convicted the accused under Sections 376/302/201 IPC. The present appeal having no merits is liable to be dismissed.
9. We have heard the learned Advocates of the respective parties. We have also scrutinised the entire evidence on record. The present case is entirely based on circumstantial evidence. A girl of six years was raped and thereafter murdered. P.Ws. 3, 4 and 6 are the witnesses who saw the accused offering a chocolate to the victim and taking her to his residence. So there are the witnesses who saw the victim for the last time in the company of the accused. Thereafter the eictim was found missing. It appears from the evidences of P.Ws. 1, 3 to 9, 14, 15 and 18 that the victim was not traceable despite vigorous search. It further appears from the evidence of P.Ws. 1, 3, 4, 5 to 9, 14, 15 and 18 that accused was found in his room and the deadbody of the victim girl was also found in the same room. The deadbody of the victim was found in naked condition and the accused was also found in naked condition. The minor discrepancies pointed out by the learned Advocate of the appellant, in our considered view, do not at all affect the core of the prosecution case.
10. We have scrutinised the entire evidence on record and we find that there is no reason to disbelieve the evidence if the witnesses as mentioned above. We also find that the said witnesses were cross-examined at length, but nothing infirm was elicited to cast even a slightest doubt on their veracity. It should not be lost sight of that there was no reason as to why the said witnesses would falsely implicate the accused appellant leaving aside the actual culprit. There was no suggestion even of any motive for such false implication. On scrutiny of evidence, we find the same acceptable. The totality of the evidence of witnesses evidence of P.Ws. 1. 3, 4, 5 to 9, 14, 15 and 18, couple with the medical evidence of P.W. 16, makes it clear and sufficient to hold that the accused appellant committed the offence in the manner and at the place as a alleged by the prosecution. The prosecution has thus cogently and firmly established the circumstances from which inference of guilt of the accused can be drawn and the circumstances proved by the prosecution are of definite nature unerringly pointing towards the guilt of the accused.
11. Considering the entire evidences on record, we agree with the view arrived at by the learned Trial Judge and accordingly we affirm the Judgment and order of conviction and sentence as passed by the learned Trial Judge. The appeal is accordingly dismissed.
12. The accused appellant, who is now in jail custody, shall serve out the remaining period of his sentence.
A copy of this Judgment along with L.C.R. may be sent down to the Court below immediately.
Arun Kumar Bhattacharya, J.
13. I agree.