Jharkhand High Court
The State Of Jharkhand vs Md. Rahet Seikh @ Kaluwa Seikh on 10 June, 2024
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Death Reference (D.B.) No.04 of 2022
The State of Jharkhand ----- Appellant
Versus
Md. Rahet Seikh @ Kaluwa Seikh ----- Respondent
With
Cr. Appeal (D.B.) No.47 of 2023
Md. Rahet Seikh @ Kaluwa Seikh ----- Appellant
Versus
The State of Jharkhand ----- Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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(in D.Ref. No.04/2022)
For the Appellant : Mr. Pankaj Kumar, P.P.
For the Respondent : Mr. Raja Ravi Shekhar Singh, Advocate
(in Cr. Appl. No.47/2023)
For the Appellant : Mr. Raja Ravi Shekhar Singh, Advocate
For the Respondent : Mr. Pankaj Kumar, P.P.
-------
Per R. Mukhopadhyay, J.
19/10.06.2024 Heard Mr. Raja Ravi Shekhar Singh, learned counsel
appearing for the appellant and Mr. Pankaj Kumar, learned P.P.
2. In Cr. Appeal (DB) No.47 of 2023 the appellant is
aggrieved by the judgment and order of conviction and sentence
dated 01.12.2022 (sentence passed on 12.12.2022) passed by Shri
Sanjay Kumar Dubey, Learned Special Judge, POCSO Act,
Rajmahal in POCSO Case No.65 of 2021 whereby and whereunder
the appellant has been convicted for the offences punishable under
Sections 302, 376(2)(i) of the I.P.C. and Section 6 of the POCSO Act
and has been sentenced to rigorous imprisonment for life and a fine
of Rs. One Lakh under Section 6 of the POCSO Act and in the event
of nonpayment of fine, simple imprisonment of one year shall be
served by him, rigorous imprisonment for life and a fine of Rs. One
lakh for the offence under Section 376(2)(i) of the I.P.C. and in the
event of non-payment of fine, simple imprisonment of one year
shall be served by him and he has also been sentenced to death for
the offence under Section 302 of the I.P.C.
3. The prosecution case arises out of the Fardbeyan of
Balagat Sarfaraj recorded on 05.03.2015 at 00.30 hours at village
Jonka in which it has been stated that his 6 year old daughter
Tayyaba Anjum was everyday taken away by his neighbour Md.
Rahet Seikh @ Kaluwa for playing and on completion of her play
time he would return her back to her home. As per the daily
routine yesterday i.e. on 4.3.2015 at 5.00 P.M. Md. Rahet Seikh
had taken his daughter on his shoulder for playing. When the
daughter of the informant did not return till late evening, he and
his wife started searching for his daughter in the nearby places
including the house of Md. Rahet Seikh but she could not be traced
out. In course of search Md. Wasim and Imam Seikh had disclosed
that his daughter was seen being taken away by Md. Rahet Seikh
on his shoulder towards Simla Pokhar field and at this information
the informant along with his relatives and villagers reached Simla
Pokhar and in course of search the dead body of the daughter of
the informant was found in the wheat field of Waris Seikh. There
were marks of bruises on the neck and a black spot. The dress
worn by the daughter of the informant was in a dishevelled state.
4. Based on the aforesaid allegations Rajmahal P.S. Case
No.81 of 2015 was instituted against Md. Rahet Seikh @ Kaluwa
under Sections 376/302 I.P.C. On completion of investigation,
charge sheet was submitted and after cognizance was taken the
case was committed to the court of sessions. Charge was framed
under Sections 376/302 I.P.C. against the accused which was read
over and explained to the accused to which he pleaded not guilty
and claimed to be tried. The charge was amended on 08.10.2021
and an additional charge was framed under Section 6 of the
POCSO Act. On committal of the case it was registered as S.T.
No.95 of 2015 but after the charge was amended the case was
registered as POCSO Case No.65 of 2021.
5. The prosecution has examined as many as 12 witnesses
in support of its case.
6. P.W. 1 Imam Seikh has stated that the incident is of 2
years back at 5.30 PM when he was returning from his field when
he had seen Kaluwa going towards Simla Pokhar with the 6-7 years
old daughter of the informant on his shoulder. There was an uproar
in the evening that Tayyaba Anjum has become traceless at which
he had gone to the house of Tayyaba Anjum and informed her
parents about seeing Tayyaba going with Rahet Seikh. At this,
several villagers went towards Simla Pokhar and adjacent to Simla
Pokhar in the wheat field of Waris the dead body of the child was
found. There were scratches in the neck of the child and blood was
oozing out from her private parts.
In cross-examination, he has deposed that it was
evening and darkness was descending. His field is about 1 KM
ahead of Simla Pokhar and a lot of people travel on that road. He
had not asked Kaluwa as to where he was taking the child. The
commotion was heard at 7.00 P.M. and when he reached the house
of the informant, several persons had already assembled by then.
He has deposed that there is a pond in the southern side and field
of Waris is on the northern side from the place where the dead body
of the child was recovered. When the Police had come, his
statement was recorded. He had stated that he had not witnessed
the occurrence.
7. P.W. 2 Md. Tajdar Hussain has stated that on 4.3.2015
at about 5.30-5.45 P.M. he after working in the field was returning
home and when he reached near Simla Pokhar, he saw Rahet Seikh
going somewhere with Tayyaba Anjum on his shoulder. When
asked, Rahet Seikh had disclosed that he was taking her to have
peas. He came back home and at about 6.30-6.45 P.M. he had met
the parents of Tayyaba Anjum who were searching for their
daughter as she had not returned home. He then disclosed about
seeing Rahet Seikh going with their daughter towards Simla
Pokhar. At this information the villagers and the parents of
Tayyaba Anjum went towards Simla Pokhar and in course of search
the dead body of Tayyaba Anjum was found lying in the wheat field
of Waris. There were scratches on her neck and blood was oozing
out from her private parts. When the Police had came, his
statement was recorded.
In cross-examination he had deposed that the place of
occurrence is at a distance of 1 and ½ K.M. from his house. He had
not witnessed the incident. He does not go to the house of the
informant and he does not have any relation with the informant. He
had disclosed about seeing the accused going with the child when
the parents of the child were searching for her.
8. P.W. 3 Md. Firoj has stated that he and the others were
returning after offering Namaz when on hearing a commotion from
the house of Balagat Sarfaraj he had gone to his house where he
came to know that his daughter is missing. After some time Imam
Seikh and a woman disclosed that Kaluwa was seen going towards
Simla Pokhar with the child on his shoulder. At this disclosure he
and the villagers went towards Simla Pokhar and in course of
intense search in the field of Waris the dead body of the child was
discovered. There was a black mark on the neck of the child and
her dishevelled clothes indicated that perhaps she was subjected to
rape. He had signed on the inquest report prepared by the Police.
The accused Kaluwa had confessed about his involvement before
the villagers.
In cross-examination he has deposed that on 4.3.2015
the Police had recorded his statement. The accused had also made
confession before the Police. He had not witnessed the occurrence.
9. P.W. 4 Wasim Seikh has stated that the incident is of
two years back when at 5.00-5.30 P.M. he was returning from his
field when he had seen Rahet Seikh going towards the field with
Tayyaba Anjum on his shoulder. As the father of Anjum was
searching for her he had disclosed about seeing her going towards
the field with the accused. When everyone went towards the field
they discovered the dead body of the child.
In cross-examination he has deposed that his statement
was not recorded by the Police.
10. P.W.5 Md. Zakir Hussain has stated that the incident is
of 4.3.2015 and he was in his house and on hearing a cry of alarm
he came out and learnt that the daughter of Balagat was missing.
In course of search two of the villagers namely Wasim and Imam
Seikh had disclosed that when they were returning from the field,
they had seen Kaluwa going towards Simla Pokhar with Tayyaba
Anjum on his shoulder. At this, the villagers went towards Simla
Pokhar in search of the child and in the field of Waris Seikh the
dead body of the child was found lying. There were scratches on the
neck of the child and the clothes were in a dishevelled state.
In cross-examination he has deposed that he had not
seen the accused taking away the child. Apart from him the others
who had taken part in search of the child were Firoj, Tajdar, Pratap
(Mukhiya), Mantu and Imam.
11. P.W. 6 Munni Bewa has stated that on the date of
occurrence she was collecting cow dung when near Simla Pokhar
she had seen Kaluwa going with Anjum on his shoulder. When she
asked him as to where he was taking the child, he has stated that
he will be providing the child green peas to eat. The accused did not
wait even when she said that he cannot find green peas on the
place where he was taking the child. She returned home when she
heard a commotion near the house of Anjum Khatoon that the
child was missing at which she disclosed to the father of the
missing child her encounter with the accused. She has stated that
thereafter she and the others went in search of the child towards
Simla Pokhar and in the wheat field her dead body was found.
In cross-examination she has deposed that when the
Police had come to the village, her statement was recorded. The
accused Kaluwa had not committed rape upon the victim in her
presence.
12. P.W. 7 Rukhsana Khatoon is the mother of the deceased
who has stated that as per daily routine her daughter Tayyaba
Anjum was taken away by Rahet Seikh @ Kaluwa. When she did
not return and it had became dark she and the other started
searching for her daughter when Munni Bewa disclosed that Rahet
Seikh had taken her daughter to Simla Math. On such disclosure
they had gone to Simla Math where she had seen her daughter
lying on the wheat field of Waris with her clothes besides her and
marks of nail on her neck. Her daughter was already dead. It was
Rahet Seikh who had committed such heinous offence against her
daughter.
In cross-examination she has deposed that she is not a
witness to the murder. She had not seen Rahet Seikh taking her
daughter towards the field and the same was seen by Munni. There
were signs of nails on the throat of her daughter and blood was
seen on her mouth. She had not seen any other part of the body
where blood was visible. The distance between Simla Pokhar and
her house is about 1 ½ K.M. Several persons had assembled in her
house.
13. P.W.8 Md. Alimulla Seikh @ Babul Seikh has stated that
it was around 5.30 P.M. and he was standing on the road near his
house when he had seen a child being taken away by Kaluwa on
his shoulder towards Simla Math. Since darkness was falling the
parents of the child were searching for her and when he came to
know about this fact, he informed them about seeing Kaluwa
taking the child with him towards Simla Math. Thereafter the dead
body of the child was recovered.
In cross-examination he has deposed that the Police
had recorded his statement. He had not witnessed the incident but
had only seen the accused going with the daughter of the
informant.
14. P.W. 9 Md. Balagat Sarfaraj is the informant and the
father of the deceased who has stated that on 4.3.2015 his
daughter Tayyaba Anjum aged about 6 years was called from her
house for playing by Kaluwa @ Rahet Seikh. Earlier also he used to
take her and return back in the evening. When as per the normal
routine she did not return in the evening, he and his wife started
searching for her and in course of search they had gone to the
house of Rahet Seikh. On being asked about the whereabouts of his
daughter Rahet Seikh disclosed that he had left her at her home.
When they continued with the search the matter came to the
knowledge of the villagers and several persons assembled. In the
meantime Imam Seikh, Wasim Seikh, Tajdar Hussain, Munni Bewa
and Babul Seikh disclosed that they had seen Rahet Seikh going
towards Simla Math with his daughter on his shoulder. When
Rahet Seikh was confronted, he got nervous and started perspiring.
Rahet Seikh kept quiet for some time and thereafter disclosed that
he had murdered his daughter. Rahet Seikh was taken away by the
Mukhiya Pratap Kumar Roy to his house. He and his wife as well as
his other relatives and friends went towards Simla Math in search
of their daughter and in the wheat field of Waris the dead body of
his daughter was recovered. There were marks of scratches on her
throat and blood was seen oozing out from her nose and private
parts. The Police was informed who came at 12.30 A.M. and his
Fardbeyan was recorded. He has identified his signature on the
Fardbeyan which has been marked as Exbt.1/1. He has stated that
his daughter was induced and taken to the wheat field of Waris by
Rahet Seikh and after committing rape he had strangulated her to
death.
In cross-examination he has deposed that his daughter
was missing since 5.00 P.M. The house of Rahet Seikh is in front of
his house. In his statement before the Police he had taken the
name of Imam Seikh and Wasim Seikh as the only persons who
had disclosed about seeing Rahet Seikh going with his daughter
towards Simla Pokhar. He had not stated before the Police about
the demeanour of Rahet Seikh when confronted with the missing of
his daughter and his subsequent confession admitting to the
commission of murder by him of his daughter.
15. P.W. 10 Md. Alimuddin Ansari had on 5.3.2015
conducted autopsy on the dead body of Tayyaba Anjum and had
found the following :-
(i) Multiple bruise and abrasion over face, interior part of
neck and chest
(ii) External genitelia No fresh bleeding or perineal tear but
hymen teared with blood tinged. Vaginal swab taken &
preserved for pathological test forensic laboratory.
(iii) Frothing from both nostril which is blood mixed and
wearing cloth dirty and Pyjama teared over back. Rigor
mortis present in both upper and lower limb.
The postmortem findings on dissection are as follows :-
"On per vaginal examination hymen teared with
blood tinged and permit only tip of little finger easily.
Stomach only mucus present, Tongue-pale, Liver,
spleen, both kidneys are congested. Urinary bladder
partially filled with urine. Heart partially filled with
blood. Lungs congested & ocdematouse and engorged.
Trachea filled with blood mixed froth and tracheal ring
collapsed."
The cause of death was opined to be on account of
cardio respiratory failure, secondary to asphyxia caused by
throttling. He has proved the postmortem report which has been
marked as Ext.2.
In cross examination he has deposed that if there is
forceful penetration of genital of a fully grown man into the vagina
of a six years old girl, then there must be perinial injury which was
not found on the dead body. The vaginal swab has been sent to the
laboratory to confirm the fact of rape and without the report he
cannot say as to whether rape was committed upon the victim or
not.
16. P.W. 11 Dwarika Ram was posted as Officer In-charge of
Rajmahal Police Station and on 5.3.2015 Rajmahal P.S. Case No.81
of 2015 was instituted under Sections 376/302 I.P.C. and on the
same day he had taken over investigation of the case. He has
proved the Fardbeyan which has been marked as Ext.-3. He has
proved the endorsement on the Fardbeyan which has been marked
as Ext.3/1. He has also proved the formal F.I.R. which has been
marked as Ext.4. After recording the Fardbeyan of the informant,
he had inspected the place of occurrence which is at a distance of
1½ K.M. from village Jonka in the field of Md. Wasim Seikh
situated at Simla Pokhar Math. wheat were found broken and limp
at the place of occurrence. He had recorded the statement of
Rukhshana Parween, Md. Wasim, Imam Seikh, Munni Bewa,
Tajdar Hussain, Sarfuddin Seikh, Babul Seikh, Firoj Seikh and Md.
Shahid. All have supported the case of the prosecution against the
accused. He had obtained the post-mortem report. He had sent the
vaginal swab of the deceased to the Patliputra Medical College,
Dhanbad on the direction of the supervising authority and since
the investigation was complete, he had submitted charge sheet.
In cross-examination he has deposed that he had taken
the statement of the witnesses on 5.3.2015 itself. He had not
prepared the inquest report.
17. P.W. 12 Shahid Hussain has stated that on the date of
occurrence he was in his house when Munni had disclosed to him
that Tayyaba Anjum has been raped and murdered at Simla Pokhar
Math. He had gone to the place of occurrence. The Police had
prepared a document in which he had put his signature.
In cross-examination he has deposed that he had stated
before the Police that he had come to know about the incident on
the disclosure of Munni.
18. The statement of the accused was recorded under
Section 313 Cr.P.C. in which he has denied the accusations made
against him.
19. It has been submitted by Mr. Raja Ravi Shekhar Singh,
learned counsel appearing for the appellant that there is no eye-
witness to the occurrence and the appellant has been implicated on
account of the last seen theory which has been deposed by P.W.1,
P.W.2, P.W.4, P.W.6, P.W.7 and P.W.8. It has been submitted that
the alteration of charge was not done by the POCSO Court. Mr.
Singh has submitted that the F.I.R. has not been properly proved
and the inquest report has also not been proved. It has been
submitted that as per the F.I.R. at 5.00 P.M. the deceased was seen
going with the appellant and the dead body was recovered at mid-
night which is not on close proximity to each other and therefore
the appellant could not have been implicated in the present case.
20. Mr. Pankaj Kumar, learned P.P. has submitted that the
proximity test has been fulfilled as the recovery of the dead body
was in close proximity to the disappearance of the child. It has
been submitted that the chain of circumstances is complete and
therefore the appellant has rightly been convicted and the sentence
of death also should not be interfered with considering the gravity
of the offence where a six years child was raped and murdered by
the appellant.
21. We have heard the learned counsel for the respective
sides and have also perused the lower court records.
22. Admittedly there are no eye-witnesses to the occurrence
and the implication of the appellant seems to be on the basis of the
circumstantial evidence of having been last seen with the deceased.
It is to be seen therefore as to whether the last seen theory has
been proved by the prosecution and the recovery of the dead body
of the child was in close proximity to such last seen theory.
23. As per the Fardbeyan it seems to be a normal routine
for the appellant to take away the daughter of the informant for
playing and such innocuous act on a daily basis did not raise any
suspicion in the minds of the parents of the deceased neither there
was any objection on their part. The suspicion was actuated when
on 4.3.2015 the daughter of the informant did not return home
even when evening descended which led to a frantic search by the
informant and his wife accompanied by several villagers. The
search for the missing child was not making much headway but a
flicker of hope was raised as per the Fardbeyan when Md. Wasim
and Imam Seikh had disclosed that they had seen the appellant
going towards Simla Pokhar field with the child on his shoulder.
This revelation veered the search towards Simla Pokhar Math
where in the wheat field of Waris the dead body of the child was
found with scratches on her throat and her clothes in disarray.
Although the informant had named Md. Wasim and Imam Seikh as
the persons who had seen the appellant going with the child but in
his evidence as P.W.9 he has also taken the names of Tajdar
Hussain, Munni Bewa and Babul Seikh. The evidence of Imam
Seikh has been recorded as P.W.1 who has supported the version of
he having seen the appellant going towards Simla Pokhar Math
with the child on his shoulder. Similar is the version of Md. Wasim
who has been examined as P.W.4. There seems to be no dearth of
witnesses who had seen the appellant and the child notably
amongst them being P.W.2 Tajdar Hussain and P.W.6 Munni Bewa.
P.W.4 also claims to have seen the appellant going with the child
though his name has not been mentioned by P.W.9. The appellant
going with the child seems to be an accepted phenomena in the
village which perhaps did not evoke any negative response from
those witnesses, except however P.W.6 Munni Bewa who had asked
the appellant as to where he was going with the child which was
responded to by the appellant that he was taking her to have green
peas. Though P.W. 6 had retorted that no green peas can be found
on the way the appellant was going, but the appellant did not pay
any heed and went away. As per P.W.2 the appellant had told him
that he was going to have peas for the child. P.W.7 who is the
mother of the deceased has stated that it was P.W.6 who had
disclosed about seeing the appellant going towards Simla Pokhar
Math with her daughter. The evidence of P.W.1, P.W.2, P.W.4 and
P.W.6 clearly proves beyond any reasonable doubt that it was the
appellant who was taking the child towards Simla Pokhar Math and
from near the said area the dead body of the daughter of the
informant was recovered.
24. There appears to an extra judicial confession made by
the appellant before the P.W. 9 as though on being confronted with
the whereabouts of the missing child, he remained silent initially
but had subsequently admitted to have killed her. This confession
al statement was not voluntary and seems to have been obtained
under coercion and duress as at the initial stage when confronted
by the informant and his wife he did not confess about the murder
but when the villagers had gathered such statement was
purportedly given by the appellant. Such extra judicial confession
therefore would not have any bearing on the fate of the case.
25. In a case of circumstantial evidence based on last seen
theory it has been held in the case of Navaneethakrishnan v.
State, reported in (2018) 16 SCC 161 as follows :-
"22. PW 11 was able to identify all the three accused in
the court itself by recapitulating his memory as those
persons who came at the time when he was washing his
car along with John Bosco and further that he had last seen
all of them sitting in Omni van on that day and his
testimony to that effect remains intact even during the
cross-examination in the light of the fact that the said
witness has no enmity whatsoever against the appellants
herein and he is an independent witness. Once the
testimony of PW 11 is established and inspires full
confidence, it is well established that it is the accused who
were last seen with the deceased specially in the
circumstances when there is nothing on record to show that
they parted from the accused and since then no activity of
the deceased can be traced and their dead bodies were
recovered later on. It is a settled legal position that the law
presumes that it is the person, who was last seen with the
deceased, would have killed the deceased and the burden
to rebut the same lies on the accused to prove that they had
departed. Undoubtedly, the last seen theory is an important
event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with
some certainty. However, this evidence alone cannot
discharge the burden of establishing the guilt of the
accused beyond reasonable doubt and requires
corroboration.
xx xx xx
27. The law is well settled that each and every
incriminating circumstance must be clearly established by
reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. In a case depending largely upon circumstantial
evidence, there is always a danger that conjecture or
suspicion may take the place of legal proof. The court must
satisfy itself that various circumstances in the chain of
events must be such as to rule out a reasonable likelihood
of the innocence of the accused. When the important link
goes, the chain of circumstances gets snapped and the
other circumstances cannot, in any manner, establish the
guilt of the accused beyond all reasonable doubt. The court
has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between
moral certainty and legal proof. There is a long mental
distance between "may be true" and "must be true" and the
same divides conjectures from sure conclusions. The Court
is mindful of caution by the settled principles of law and the
decisions rendered by this Court that in a given case like
this, where the prosecution rests on the circumstantial
evidence, the prosecution must place and prove all the
necessary circumstances, which would constitute a
complete chain without a snap and pointing to the
hypothesis that except the accused, no one had committed
the offence, which in the present case, the prosecution has
failed to prove."
26. In the case of KanhaiyaLal v. State of Rajasthan
reported in (2014) 4 SCC 715 it has been held as follows :-
"12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be something
more establishing connectivity between the accused and the
crime. Mere non-explanation on the part of the appellant, in
our considered opinion, by itself cannot lead to proof of guilt
against the appellant.
xx xx xx
15. The theory of last seen--the appellant having gone with
the deceased in the manner noticed hereinbefore, is the
singular piece of circumstantial evidence available against
him. The conviction of the appellant cannot be maintained
merely on suspicion, however strong it may be, or on his
conduct. These facts assume further importance on account
of absence of proof of motive particularly when it is proved
that there was cordial relationship between the accused
and the deceased for a long time. The fact situation bears
great similarity to that in Madho Singh v. State of
Rajasthan."
27. Similarly in the case of Anjan Kumar Sarma v. State
of Assam reported in (2017) 14 SCC 359 it has been held as
follows :-
"23. It is clear from the above that in a case where the
other links have been satisfactorily made out and the
circumstances point to the guilt of the accused, the
circumstance of last seen together and absence of explanation
would provide an additional link which completes the chain. In
the absence of proof of other circumstances, the only
circumstance of last seen together and absence of satisfactory
explanation cannot be made the basis of conviction. The other
judgments on this point that are cited by Mr Venkataramani do
not take a different view and, thus, need not be adverted to.
He also relied upon the judgment of this Court in State of Goa
v. Sanjay Thakran13 in support of his submission that the
circumstance of last seen together would be a relevant
circumstance in a case where there was no possibility of any
other persons meeting or approaching the deceased at the
place of incident or before the commission of crime in the
intervening period. It was held in the above judgment as
under: (SCC p. 776, para 34)
"34. From the principle laid down by this Court, the
circumstance of last seen together would normally be taken
into consideration for finding the accused guilty of the offence
charged with when it is established by the prosecution that the
time gap between the point of time when the accused and the
deceased were found together alive and when the deceased
was found dead is so small that possibility of any other person
being with the deceased could completely be ruled out. The
time gap between the accused persons seen in the company of
the deceased and the detection of the crime would be a
material consideration for appreciation of the evidence and
placing reliance on it as a circumstance against the accused.
But, in all cases, it cannot be said that the evidence of last
seen together is to be rejected merely because the time gap
between the accused persons and the deceased last seen
together and the crime coming to light is after (sic of) a
considerable long duration. There can be no fixed or
straitjacket formula for the duration of time gap in this regard
and it would depend upon the evidence led by the prosecution
to remove the possibility of any other person meeting the
deceased in the intervening period, that is to say, if the
prosecution is able to lead such an evidence that likelihood of
any person other than the accused, being the author of the
crime, becomes impossible, then the evidence of
circumstance of last seen together, although there is long
duration of time, can be considered as one of the
circumstances in the chain of circumstances to prove the guilt
against such accused persons. Hence, if the prosecution
proves that in the light of the facts and circumstances of the
case, there was no possibility of any other person meeting or
approaching the deceased at the place of incident or before the
commission of the crime, in the intervening period, the proof of
last seen together would be relevant evidence. For instance, if
it can be demonstrated by showing that the accused persons
were in exclusive possession of the place where the incident
occurred or where they were last seen together with the
deceased, and there was no possibility of any intrusion to that
place by any third party, then a relatively wider time gap
would not affect the prosecution case."
28. As we have noticed above it was undoubtedly the
appellant who was last seen with the child as per the evidence of
P.W.1, P.W. 2, P.W.4 and P.W. 6. The same though would evoke a
strong circumstance, but that by itself would not be enough the
conclusively prove the involvement of the appellant in committing
rape and murder of the daughter of the informant. There has to be
some other materials worthy of consideration to drive home the
guilt of the appellant. There is absence of motive or any enmity
between the appellant and the informant. There was a cordial
relationship between the appellant and the family of the informant
as the daily routine of the child being taken away by the appellant
for playing would signify. The conduct of the appellant also does
not arouse any suspicion as when the daughter of the informant
did not come back the appellant was tapped and he was found
present in the house and disclosed about leaving the child in the
house. None of the witnesses have mentioned about any unnatural
demeanour on the part of the appellant. The circumstances
considered by the learned trial court does not evaluate the absence
of any other materials except being last seen with the deceased.
The offence no doubt is despicable and diabolical, but prudence
would demand sifting of the evidence to discern any corroboration
or support by any material facts and circumstances to obliterate
the false implication of the appellant. As stated by us, save and
except the deceased being last seen with the appellant, no other
circumstance has surfaced completing the chain of circumstances
and drawing an inference about the culpability of the appellant.
The proximity of the recovery of the dead body from the time the
deceased was seen with the appellant also seems not to have been
established and even the inquest report has not been exhibited.
28. We therefore on the basis of the discussions made
herein above answer the reference in the negative and set aside the
judgment and order of conviction and sentence dated 01.12.2022
(sentence passed on 12.12.2022) passed by Shri Sanjay Kumar
Dubey, Learned Special Judge, POCSO Act, Rajmahal in POCSO
Case No.65 of 2021.
29. This appeal is allowed.
30. Since the appellant is in custody, he is directed to be
released immediately and forthwith, if not wanted in any other
case.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Shamim/-
