JUDGMENT
D. Biswas, J.
1. By this common judgment, we propose to dispose of Criminal Death Reference No. I/2005, Criminal Appeal No. 20(J)/2005 and Criminal Appeal No. 21(J)/2005.
2. The Criminal Death Reference has arisen out of the judgment of conviction and sentence awarded in Sessions Case No. 198(K)/2002. The learned Sessions Judge, Kamrup, Guwahati on conclusion of trial in the aforesaid case, convicted the appellants namely, Sri Bishnu Prasad Sinha and Sri Putul Bora under Section 376(2)(g)/302/201 read with Section 34 of the Indian Penal Code and sentenced both of them to be hanged by neck until death. The learned Sessions Judge made the reference under Section 366 of the Code of Criminal Procedure for confirmation. Criminal Appeal No. 20(J)/2005 has been preferred by the accused Sri Bishnu Prasad Sinha whereas Criminal Appeal No. 21(J)2005 has been preferred by Sri Putul Bora challenging the aforesaid judgment.
3. We have heard Mr. P. Kataky, learned amicus curiae in Criminal Appeal No. 20(J)/2005 and Ms. S.D. Baruah, learned amicus curiae in Criminal Appeal No. 21(J)/2005 and Mr. P. Bora, learned Public Prosecutor, Assam.
4. The genesis of the prosecution case is the rape and murder of a little girl namely, Barnali Deb @ Poppy aged 7/8 years. The incident took place in the complex of Network Travels, a private travel agency in the city of Guwahati. On 12.7.2002 Sri Bishnu Deb, his wife Smt. Anima Deb, daughter Barnali Deb and a little son boarded a bus of Network Travels from Dharmanagar within the State of Tripura on their way to Dimapur in the State of Nagaland. They reached the Network Travels’ complex at Paltanbazar, Guwahati at around 10.30 p.m. No connecting bus service was available for onward journey to Dimapur and, hence, they decided to spend the night in the waiting room of the Network Travels. The appellant Bishnu Prasad Sinha, night chowkidar of the Network Travels assured them of safety during their stay in the waiting room and carried their luggages inside the waiting room and made necessary arrangements for their stay. The family went out for dinner and returned to the waiting room. While the father and the children fell asleep, the mother Anima Deb was sitting beside them. Appellant Bishnu Prasad Sinha insisted her repeatedly to go to sleep without any worry. At about 1.30 p.m., another passenger vehicle (Bus No. AS-25/C-1476) reached Paltanbazar Network Travels Compound. The co-accused Putul Bora, handyman of the said had some conversation with Bishnu Prasad Sinha. By that time, Anima Deb also fell asleep. At around 3 a.m. when the little son cried out, she woke up and found that Barnali was not there. Both the wife and the husband raised alarm and requested accused Bishnu Prasad Sinha to open the waiting room as the key was with him. After initial reluctance, Bishnu Prasad Sinha opened the door. Despite being told that Barnali was missing, Shri Sinha exhibited no concern for the girl and rather told that she might be somewhere else in the room. A frantic but abortive search was made by the parents to trace out the girl in and around various travel agency complexes including Railway Station. Shri Bishnu Deb, the father lodged a missing entry before the Officer-in-Charge of Paltan Bazar Police Station. The employees of the travel agency were reported about the matter next morning. Around that time, Shri Amar Deep Basfore, Sweeper of the Travel Agency, noticed a dead body inside the septic tank while cleaning the latrine. He reported the matter to Shri Bidhu Kinkar Goswami (P.W.I) and Shri Kapil Kr. Paul (P.W.2) and the parents of the missing girl who immediately identified the dead body as that of their daughter. P.W.I, Shri Bidhu Kinkar Goswami lodged the ejahar on behalf of the travel agency before the Officer-in-Charge of Paltan Bazar Police Station narrating the entire incident. In the FIR itself, it was mentioned that Barnali was perhaps raped and thereafter killed by the accused persons.
5. Paltan Bazar Police Station Case No. 234/2002 under Section 376(2)(g)/302/201/34 IPC was registered. The police came to the place of occurrence along with a Magistrate. Inquest over the dead body was done and sent for postmortem examination. Eventually, on completion of the investigation, charge sheet was filed against Shri Bishnu Prasad Sinha and Shri Putui Bora under Section 376(2)(g)/302/201/34 IPC. On commitment, the learned Sessions Judge, after complying with all formalities, framed charges against them under Sections 376(2)(g)/ 302/201/34 IPC. On denial of the charges, which were read over and explained to them, the learned Sessions Judge proceeded with the trial. Altogether 29 witnesses have been examined by the prosecution including the official witnesses. The defence case was of total denial. The learned Sessions Judge on conclusion of trial, convicted and sentenced both the appellants to death.
6. At the very outset, we would like to quote herein below the autopsy report tendered in evidence by Dr. Kanak Chandra Das (PW.21) who at the relevant time was the Assistant Professor of Forensic Medicine, Gauhati Medical College, Guwahati. The excerpts relevant for the purpose at hand from his evidence is quoted below : –
Brown complexion average built female child dead body found wearing one frock soiled with dirty materials. Eyes partly opened. Mouth partly open. Rigormortis present all over the body. Body is cold on touch. Mud and soil stains present all over the body. Ear rings present on both ears. Metalic bangles (6 Nos.) present on right fore arms. Body looks pale. Total of teeth 24 out of that 12 nos temporary and 12 permanent. Wearing garments (one frock) is handed over to police after post mortem examination.
Injuries:
(1) One abrasion with contusion present on front of the right knee joint, size – 3 cm x 2.5 cm.
(2) One lacerated injury present on medial side of the right ankle joint, size – 3 cm x 2 cm x muscle deep.
(3) One abrasion with contusion present on meddle of left leg, anterior surface, size – 3.5 cm x 1.5 cm
(4) One abrasion with contusion present on forehead middle part. Size – 5 cm x 3.5 cm.
(5) One Tear (lacerated injury) present on posterior wall of the vagina on midline, upon the anus (3rd degree tears). Size – 3 cm length x 2 cm width x anal canal deep. Clotted blood found adherent to the wound margins which are resistant to washing. Vaginal smears taken in three (3) glass slides for laboratory investigation.
(6) Multiple imprint abrasion with contusion (12 – in number, in two rows and 6 numbers in each row, shape is elliptical and size of the area involved 4.2 cm length and 2.5 cm in breadth, red in colour) present on middle of the right cheek, 2 cm in front of right ear. The size of the contusion varying from 0.6 x 0.4 cm to 0.6 cm to 0.5 cm from each other. Teeth bite mark. Similar type of bite marks present over the left cheek middle part and front of the chest around the left nipple. Out of the three described one is more prominent.
Thorax :
Wall, ribs and cartilages all healthy. Pleurae – healthy. Laryax and tracheae contains soils and mud particles. Right lung and left lung Both oeddunatus and voluminous. Rib marking present and surface. On Section frotty bluidy blood comes out from cut margins. Pericar(dium) – healthy, empty. Heart-healthy, Vessels -healthy.
Abdomen
Walls healthy, Peritoneum – healthy, Mouth, pharynx oesophagus -healthy. Mouth and ngstrils contains soils and mud. Stomach and its contents – Healthy. Contains – semisolid (watery) substance mixed with soils and mud. Small intestine and its contents healthy, contains digested food materials.
N.B (1) A11 injuries including teeth bite mark are ante-mortem and red in colour.
(2) Glass smears taken for laboratory (vaginal smears) investigation-gave negative test for spermatozoa/goriococci.]
(3) One glass smears is handed over to investigating officer (I/O) with the request to analysis the smear in Forensic Science Laboratory.
OPINION
(1) Death was due to asphyxia resulting from inhalation of semisolid watery substances during life.
(2) Injury No. (5) was suggestive of the result of forceful penetration (sexual intercourse) – prior to death.
(3) All injuries were antemortem (including teeth bite marks) and homicidal in nature.
Approximate time since death 12 to 18 hours.
Ext. 23 is the post mortem report. (Est. 23(1) is my signature.
7. It would appear from the medical report above that the deceased Barnali was raped, and she died due to asphyxia for having inhaled semisolid watery substances while alive. The multiple injuries sustained by Barnali suggest that she was subjected to tremendous torture during the course of rape. Some of the injuries also suggest that she might have had offered resistance. Barnali was thrown alive inside the septic tank which is suggestive of the beastly and cruel character of the offenders. The inquest report (Ext-2) also suggest of death after rape due to asphyxia and strangulation.
8. Having noticed and being fully satisfied as to the cause of death of Barnali, we may now examine the evidence on record to determine the culpability of both the appellants. There are two sets of evidence in this case – inculpatory confessional statement by one of the accused person, namely – Bishnu Prasad Sinha and circumstantial evidence against both the appellants.
9. First we would like to deal with the confessional statement (Ext-10) recorded by P.W. 8 Smti N. Rajkumari, Judicial Magistrate, First Class, Guwahati. The confessional statement was recorded on 24.7.2002. We have examined the evidence of the learned Magistrate thoroughly. It appears from the evidence of the learned Magistrate that the accused Bishnu Prasad Sinha on being produced before her expressed his willingness to confess the guilt. Thereafter, the learned Magistrate explained the import of the confessional statement and cautioned him as is required under law. The accused was kept in the official chamber of the learned Magistrate in custody of the Bench Assistant Shri Suren Kalita. From 10.30 A.M. to 4.45 P.M., the accused was in the official chamber. Thereafter, the learned Magistrate explained again the import of the confessional statement and proceeded to record his confessional statement. It appears that the learned Magistrate repeatedly cautioned and warned the accused before the confessional statement was recorded. Being satisfied as to the voluntaryness of the accused and as there was no allegation of torture by or threat from police, the statement was recorded. It was read over and explained. Only thereafter, the accused put his signature in presence of the learned Magistrate. The defence could not elicit anything out of her. We do not find any aberration or procedural irregularities in recording the confessional statement (Ext.-10) of the appellant Shri Bishnu Prasad Sinha. The relevant part of the confessional statement is quoted below : –
I am the night watchman of the Paltan Bazar counter of Network travels. On 13.7.20021 was on duty at the counter. Around 10.30 that night a bus arrived from Dharmanagar. Some passengers : from that bus cam and requested me to allow them to stay at, the counter for the night. The group comprised a man, two women – a girl of about 8 or 9 and a child of about 3 or 4 I allowed them to sleep at the counter. Around 1.30 am one ‘NR Super’ bus (No. 1476) arrived from Jorhat and its staff slept in the bus itself. Around 2 a.m. Putul Bora, handyman of the N.R. Super bus got down from the bus and came to me. Then I proposed to Putul Bora rape of the said 8 or 9 year old girl sleeping at the counter. According to my plan I and Putul Bora lifted the said 8 or 9 year girl in her sleep and in the bathroom at the counter, we raped her, first me and then Putul Bora. As the girl was asleep, she did not shout. After having raped her, we found the girl still. The I and Putul Bora opened the lid of the septic tank of the lavatory at the counter, put the girl inside the septic tank and closed the lid. Then I left for my duty and Putul Bora went back to the bus and slept there.
10. It would appear from the confessional statement reproduced above that the appellant Bishnu Prasad Sinha narrated in details about the travel of the family of Barnali, their stay in the travel complex (counter) and about the plan and manner in which he along with co-accused Putul Bora, handyman of NR Super bus No. 1476 lifted the girl in deep sleep, took her to bathroom of the counter and raped her. Accused Bishnu Prasad Sinha further confessed that it was he who raped the girl first followed by Putul Bora. After committing rape, they opened the lid of the septic tank of the lavatory inside the counter and threw her there.
11. The learned Sessions Judge, during the course of examination of the confessing accused under Section 313 Cr.P.C. put the confessional statement before the accused. The questions and the answers given thereto read as follows :-
Q. No. 41 : It is also in her evidence that on your production, the Magistrate asked you whether you were willing to give a confessional statement of guilt. What is your say ?
Ans: The Magistrate asked me whether I was willing to make confessional statement. I wanted to give my confessional statement as I committed the offence.
Q. No. 42 : It is also in her evidence that she made you understand that you are not bound to make confessional statement, the confession so to be made would go against you, that she was not a police man but a magistrate. What is your say ?
Ans : The Magistrate did explain me the above fact to me and consulted the same carefully about the result of such confession.
Q. No. 43 : It is also in her evidence that you were put in the charge in the office peon in her chamber (office) at 1.30 PM you were produced and then again at 4.45 PM for recording your statement. Ans. Yes, I was produced before her.
Q. No. 44. It is also in her evidence that at your production again she again explained to you the import of confession and you expressed your willingness to give confessional statement. What is your say ?
Ans : Yes I, expressed my willingness to give confessional statement. I understand her all questioned put to me.
Q. No. 45. It is also in her evidence that inspite of repeated caution you were sangquine to give a confessional statement about your guilt. What is your say ?
Ans : I was sangquine to give confessional statement because I was repenting to my misdeed that I did.
Q. No. 46 : It is also in her evidence that you voluntarily gave confessional statement. What is your say ?
Ans : Yes, I voluntarily gave my confessional statement because I committed the offence. I am guilty of the offence.
Q. No. 47 : It is also in her evidence that she recorded your confessional statement and the statement was read over to you and put your signatures having found the same as correct. What is your say ?
Ans : Yes, my confessional statement was recorded by the Magistrate. The confessional statement so recorded was not read over to me. I put my signature in the confessional statement.
Q. No. 48. It is also in her evidence that Ext. 10 is the confessional statement recorded by her wherein Exts. 10(7) to 10(8) and 10(9) are my signatures and Ext. 10(1) to 10(6) are her signatures. What is your say ?
Ans. Yes. Exts. 10(7) to 10(9) are my signatures.
12. The import of the confessional statement leaves us with no doubt that Shri Bishnu Prasad Sinha along with co-accused Shri Putul Bora had raped and killed the girl. The answers to several questions quoted hereinabove given by the accused during the course of examination under Section 313 Cr.P.C. also suggest that the confession made was voluntary and true.
13. We now propose to deal with the circumstantial evidence appearing in this case against both the appellants. The law relating to circumstantial evidence is well settled. Firstly, the circumstances should be fully established and the same should be consistent with the hypothesis of the guilt of the accused without any room for a divergent view and the circumstances so established should make a chain leading to the conclusion that it is the accused alone and none else who have committed the offence. The circumstances available in the instant case against Bishnu Prasad Sinha are as follows : –
(a) The evidence discloses that he was the night chawkidar of the travel agency and that has been admitted by the accused himself both in his confessional statement as well as in the statement recorded Under Section 313 Cr.P.C. ;
(b) The evidence on record, particularly of P.Ws 22 and 23 suggest that the accused prevailed upon the couple to spent the night in the waiting room and that he had carried their luggages inside the waiting hall and assured them of full security and safety as the key was with him. This accused had access to the waiting hall as the key was with him.
(c) While P.W. 23 Bishnu Deb, his daughter, Barnali Deb (since deceased) and small child were sleeping, P.W.22, the mother, was sitting beside them. She saw that both the accused persons were discussing something suspiciously. P.W.2 did not go to sleep and was observing the situation though accused Bishnu Prasad Sinha made consistent pressure on her to sleep without any fear.
(d) When P.Ws 22 and 23 started hue and cry saying Barnali is missing and requested the accused Bishnu Prasad Sinha to open the door, but initially he refused to do so. On the contrary, he told them that Barnali might be somewhere else in the room. Thereafter, Bishnu Prasad Sinha had to open the door on being persuaded. The accused also started searching the missing girl.
(e) The evidence show that from the beginning his greedy eyes fell on the unfortunate girl Barnali. The dead body of the deceased was recovered from the septic tank of the lavatory inside the waiting hall where other than the couple and their children, none else but Bishnu Prasad Sinha could enter as the key was with him.
(f) The black coloured half pant belonging to accused Bishnu Prasad Sinha containing suspected semen/blood stains was seized by police vide Ext. 3 in presence of witnesses. M. Ext. 3 is the said half pant. No explanation is available as to how this half-pant belonging to Bishnu Prasad Singh could be found there. In answer to question No. 34 under Section 313 Cr.P.C., this accused admitted that the half-pant M. Ext. 1 seized by the police belongs to him.
14. The above circumstances are borne by record, particularly by the evidence of P.W.s. 22 and 23, the parents of the deceased. We have considered in depth the evidence on record and we have no option but to hold that the above circumstances appearing against the appellant Shri Bishnu Prasad Sinha are fully established on evidence. The seizure of the wearing apparel of Bishnu Prasad Sinha vide Ext. 3 in presence of the witnesses is a very important factor which read with the confessional statement lead us to conclude that Bishnu Prasad Sinha is guilty of committing rape and murder of Barnali.
15. The circumstantial evidence appearing against the co-accused Shri Putul Bora are available from the evidence of P.Ws. 2, 3, 4, 22, 23 and 26. The circumstances noticed by the learned Sessions Judge are as follows: –
(a) Evidence discloses that this accused was the handyman of bus bearing No. AS 25C 1476 and he came to Paltaribazar Net Work Travel campus at 1.30 A.M. (night). The evidence of P.W. 22, 23 and 26 clearly show that both the accused had some discussion and came to the waiting hall preceding the occurrence.
(b) Initially, this accused made preparation to sleep in his own bus but subsequently, he slept in a different bus hearing No. AS -1G-5990 as deposed by P.W. 4. On being questioned by P.W. 4, he could not offer any satisfactory reply.
(c) P.W. 3, Shri Kamal Goswami, Manager of the Travel Agency stated that at around 1.50 A.M., they reached Guwahati from Nagaon by Bus No. AS-25C-1476. Putul Bora was the handyman of the said vehicle who was wearing a jangia. Reaching Guwahati, he was sleeping in the lower bunker of the cabin. At about 2/2.30 P.M., he suddenly felt touch in his leg. He saw Putul Bora climbing the upper bunker of the vehicle. At that time, he was wearing a long pant. They searched for the missing girl upto 4.30 A.M. He noticed some stains/injuries on the face of Putul Bora who could not properly explain the same. This witness stated that he did not notice any stain/mark on the face of Putul Bora while coming from Nagaon to Guwahati. This shows that Barnali had resisted before being raped for which this accused sustained injuries on his face.
(d) Police seized the brown coloured jangia of the accused Putul Bora vide Ext. 6. Material Ext. 4 is the said jangia. The evidence of P.W. 3 shows that Putul Bora was wearing jangia while coming from Nagaon and while going to sleep in the upper bunker P.W. 3 noticed that he was wearing a long pant.
(e) Seizure of the under-pant vide Ext. 6 by police belonging to accused Putul Bora from the place of occurrence is a very strong incriminating circumstance against this accused.
(f) Another circumstance against accused Putul Bora is that in the following morning, he made constant pressure on PW 2 to allow him to leave Paltanbaar bus stand with his vehicle. Initially, he was not allowed to do so. However, at 6 AM he left for Jorhat. The post crime conduct of accused Putul Bora is relevant and material.
16. Some of the questions put to this accused under Section 313 Cr.P.C. and answers given thereto are of great significance. Instead of explaining away the circumstances, the accused rather admitted the same to the questions put under Section 313 Cr.P.C. These questions and answers are as follows : –
Q. 14 : Was the other accused, the watchman, present that night ? Ans : It is true the other accused, the watchman, was there.
Q. 19 : Did your bus, i.e. bus No. AS-25-C-1476, start from Jorhat in the morning ?
Ans : That is true.
Q. 25 : Where you there in the Network travels compound that night with the vehicle ?
Ans : That is true.
Q. 32 : The witness say stains on your face and when he asked you about, you could not say anything. You had no stains in your face when you had come from Nagaon ? ‘
Ans : That is true.
Q. 33 : By ext. 6 the police seized the underpants you were wearing which had white stains on it. Ext. 6(1) is the signature of the witness. What is your statement ?
Ans : That is true.
Q. 34. Witness No. 4 has stated that on the night of occurrence he was the Conductor of bus No. AS-106-5996 and that you were on the campus. Is that true ?
Ans : That is true.
Q. 36: Witness No. 5 has stated that he is the owner of bus No. AS-25-C-1476 ; that the manager informed him over telephone that a girl had gone missing from the waiting room of Network travels ; that he then came and went to Paltan Bazar police station; and that the police seized your undergarments. Is that true ?
Ans. That is true.
Q. 42 : Witness No. 9 he stated that in his presence Paltan Bazar Police seized, by ext. 6, your undergarments containing white stains. What is your statement ?
Ans : That is true.
Q. 84 : The following morning you and the driver and the conductor started from Jorhat by that bus, and the police seized the bus at Kahara with you all. Is that true ?
Ans: Yes.
Q. 96 : Did the police seized your undergarments that had white stains on it?
Ans : That is true.
17. The above circumstances available from the evidence of P.Ws. further stand fortified since the accused could not explain away the same. It is established that Putul Bora came to Paltan Bazar Network Travels campus in the night and he had some discussion with the other appellant Bishnu Prasad Sinha and further that he had entered the waiting room where the couple with Barnali was staying before they went to sleep. The accused Putul Bora could not properly explain the reason for his sleeping in a different bus No. AS-01-G 5990 to P.W.4. The accused had some stain marks on his face and these injuries were not seen by P.W. 3 while coming from Nagaon to Guwahati by bus No. AS 25C 1476. The seizure of the brown colour jangia belonging to this accused vide Ext. 6 in presence of the witnesses also establish his complicity in the alleged offence. The evidence on record clearly establish that the jangia belongs to the appellant Putul Bora. The accused in answer to the question put by the learned Sessions Judge under Section 313 Cr.P.C. admitted that the jangia seized from the place of occurrence belongs to him. His attempt to leave the Paltan Bazar bus stand on the following morning as evinced by P.W.2, Kapil Kumar Paul, the Cashier, and his leaving the bus stand at 6 A.M. for Jorhat is of great significance. The evidence of P.W. 2 clearly establish that he was in a hurry to leave the travel complex. This conduct of this accused immediate after the crime cannot be treated as consistent with his innocence. The accused also failed to explain as to how he had suffered injuries on his face. Coupled with the confessional statement made by Bishnu Prasad Sinha, we have no doubt in our mind that the appellant Putul Bora along with Bishnu Prasad Sinha had lifted the girl Barnali while asleep with her parents, raped her in the lavatory and threw her inside the septic tank.
18. Mr. P. Kataky, learned amicus curiae for the appellant in Criminal Appeal No. 20(J)/2005 and Ms. S.D. Baruah, learned amicus curiae in Criminal Appeal No. 21(J)/2005 argued at length. According to them, in the absence of the forensic/chemical report as to the presence of the semen on the seized pant of Bishnu Prasad Sinha and jangia of Putul Bora, it cannot be said conclusively that they had committed the offence. There is obviously a lapse on the part of the Investigating Officer as garments seized were not sent to Forensic Science Laboratory for examination. But this lapse, though unpardonable, cannot wipe out the strong evidence emanating from the confessional statement and the circumstances proved by the witnesses. The defence cannot get any mileage out of this omission on the part of the investigating authority. The Apex Court in a number of Judgments, particularly in Narayan Nathu Naik v. The State of Maharashtra ; Raghunandan Ganga Sahai v. State of U.P. and in Rabi Chandra Pradhan and Ors. v. State of Orissa has emphatically observed that such a lapse on the part of the investigating officer will not have any adverse impact on the circumstances duly proved by the witnesses. Considering the facts and circumstances of the case and the manner in which a little girl aged 8 was raped and killed, we have no hesitation in our mind to come to the conclusion that the prosecution has succeeded beyond all reasonable doubt to establish the charges against both the appellants under Sections 376(2)(g)/302/201/34 IPC.
19. The learned Sessions Judge has sentenced both the appellants to death. The statement of both the appellants have been recorded by the learned Sessions Judge under Section 235(2) Cr.P.C. We have gone through the statement and the mitigating circumstances sought to be brought to the notice of this Court are not at all significant. The question is whether it is a fit case for capital punishment. There is no doubt that punishment for murder is imprisonment for life and the penalty of death is an exception. Special reasons are required to be cited for imposing death sentence. The guidelines in this regard, as laid down by the hon’ble Supreme Court, is available in Bachan Singh v. State of Punjab . The guidelines provide for death penalty in gravest cases of extreme culpability based on the circumstances leading to the crime having due regard to the aggravating and mitigating circumstances. It must be a rarest of rare cases based on the motive behind the crime, the manner of assault and the impact of the crime on the Society as a whole. We find that the victim was an innocent and helpless child of 8/9 years and she was raped and killed in an extremely brutal, grotesque, diabolic, revolting and dastardly manner and this has resulted in intense and extreme indignation of the Society as a whole. She was a helpless child, tired and fatigue of the long journey from Dharmanagar to Guwahati and was in deep sleep in the travel room of the Travel Agency Counter. Her age and the physical stature as recorded by P.W. 21 Dr. Kanak Chandra Das do not suggest that there was any scope of any kind of provocation from her. The rape was committed to gratify the sexual lust by overpowering her after causing multiple injuries and thereafter she was thrown into the septic tank with the full intention to cause her death and eliminate the evidence forever. It was a case of planned and cold-blooded rape and murder. The accused Bishnu Prasad Sinha and Putul Bora are aged 55 years and 22 years respectively and such a heinous act on their part is beyond reproach.
20. Here we may refer to an observation of the hon’ble Supreme Court in State of M.P. v. Munna Choubey and Anr. . Hon’ble Pasayat, J delivering the judgment on behalf of the Bench observed as follows : –
10. 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. ….
21. In the case of State of Rajasthan v. Kheraj Ra , the Apex Court observed : –
34. …
In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances : –
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the community. (SCC pp. 487-88, paras 32-33).
(2) …
(3) …
(4) …
(5) When the victim of murder is an innocent child….
In the light of the above proposition of law, let us examine what are the aggravating circumstances and what are the mitigating circumstances appearing against the two accused appellants : –
Aggravating circumstances : –
(i) The victim is a young girl aged about 8 years ;
(ii) The victim did not contribute or provoke the incident;
(iii) The entire incident is heinous, shocking and nauseating ;
(iv) This is a cold blooded murder ;
(v) The deceased was put into the septic tank while she was still alive ;
(vi) The apparent motive for the killing was to save themselves from the charge of rape ; and
(vii) A young 8 years old girl was subjected to brutal rape as seen from the photograph proved and exhibited during trial.
Mitigating circumstances : –
(i) One of the accused is a 55 years old man and the other is a young man of 25 years ; and
(ii) The killing was not made for any reward.
On examination of the balance sheet of the aggravating and mitigating circumstances and inspite of giving full weightage to the two mitigating circumstances, we find that this is one of the rarest of rare case where no sentence except the sentence of death will meet the ends of justice.
22. On due consideration to the facts and circumstances of the case, we do by this judgment confirm the sentence of death passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 198(K)/2002. The reference is accordingly disposed of. Consequent thereupon, both the Criminal Appeal Nos. 20(J)/2005 and 21(J)/2005 are dismissed.
23. Registry is directed to transmit the case record along with a copy of the judgment to the learned Sessions Judge, Kamrup, Guwahati forthwith.