[Cites 49, Cited by 0]
Jharkhand High Court
Against The Judgment Of Conviction ... vs Indar Oraon on 6 January, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2026:JHHC:140-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Death Reference No.01 of 2025
[Against the Judgment of conviction dated 09.01.2025 and Order
of sentence dated 10.01.2025 passed by learned Additional and
Sessions Judge-I-cum-Special Judge (POCSO Act), Lohardaga, in
Special POCSO Case No.09/2023]
The State of Jharkhand ... ... Appellants
Versus
Indar Oraon, son of Laxman Oraon, aged about 25 years,
resident of Village-Areya, P.O. Kisko, P.S. Bagru, District-
Lohardaga, Jharkhand. ... ... Respondent
With
Criminal Appeal (DB) No.847 of 2025
------
Indar Oraon, son of Laxman Oraon, aged about 25 years,
resident of Village-Areya, P.O. Kisko, P.S. Bagru, District-
Lohardaga, Jharkhand. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
[Death Reference No.01/2025]
For the Appellant : Mr. Pankaj Kumar, P.P.
: Ms. Sharda Kumari, A.C. to P.P.
For the Respondent : Mr. Mahesh Tewari, Advocate
[Cr. Appeal (DB) No.847/2025]
For the Appellant : Mr. Kumar Vaibhav, Amicus Curiae
For the Respondent : Mr. Pankaj Kumar, P.P.
: Ms. Sharda Kumari, A.C. to P.P.
.....
C.A.V. on 05.12.2025 Pronounced on 06/01/2026
Per Sujit Narayan Prasad, J.
1. Heard learned counsel for the appellant, facing the
death sentence, and learned counsel for the State, in the
death reference.
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2. As this death reference and the instant appeal arise out
of the common Judgment of conviction and Order of
sentence, they were heard together and are being disposed of
by this common Judgment.
3. This death reference and the connected Criminal Appeal
arise out of the impugned Judgment of conviction dated
09.01.2025 and Order of sentence dated 10.01.2025 passed
by learned Additional and Sessions Judge-I-cum-Special
Judge (POCSO Act), Lohardaga, in Special POCSO Case
No.09/2023 whereby, the sole appellant Indar Oraon has
been found guilty and convicted for the offences under
Sections 302 of the Indian Penal Code and Section 6 of the
POCSO Act.
Upon hearing on the point of sentence, the appellant
Indar Oraon has been sentenced to the capital punishment of
death, for the offence under Section 302 of the Indian Penal
Code, directing him to be hanged by neck till his death. He
has further been sentenced to R.I. of Life imprisonment
(remainder of natural life) and fine of Rs. 25,000/- (Twenty
Five Thousand) for offence u/s 6 POCSO Act. In the event of
default of payment of fine, he shall undergo S.I. of One
month.
Aggrieved by the said Judgment of Conviction and Order
of sentence, the appellant has preferred the present appeal,
whereas the death reference is made by the learned Trial
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Court for confirmation of the death sentence imposed upon
the sole appellant, namely Indar Oraon.
Factual Matrix
4. This Court, before proceeding to examine the legality
and propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background of
institution of prosecution case. The prosecution story in brief
as per the allegation made in the First Information Report
reads hereunder as :-
The case of the prosecution is that on 24.12.2022 at
3.00 O'clock the informant alongwith her younger daughter
(victim/deceased aged about 5 years) visited towards roof of
Anganbari for getting the paddy crop parched.
In the meanwhile, her daughter rushed out from there
and started playing with other children. Accused Indar Oraon
aged about 25 years visited there and offered 5 rupees to
each children and on the other hand her daughter was
offered 50 rupees by the accused Indar Oraon.
Accused Indar Oraon wandered alongwith her daughter.
At 4.35 O'clock when she returned home, her daughter was
found to be missing. She inquired whereabout of her
daughter from Indar Oraon accused.
She on suspicion apprehended accused but accused
Indar Oraon strove hard to stifle her in the court yard of
Fuldeo.
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In the meanwhile, Sukhmaniya Oraon and Heeramuni
Oraon rushed there and informed her that her daughter was
lying dead. Then Indar Oraon started fleeing from the spot
but he was apprehended by the people who divulged that he
attempted to ravish the victim/deceased behind the house of
Tewasi Oraon during which victim/deceased squealed and in
the said course he stifled her neck causing her death.
It has been indicted that Indar Oraon killed the
victim/deceased when he attempted to ravish her. It has
been also alleged that Indar Oraon was having criminal
history of killing her grand-mother and in this connection
earlier a case was instituted in Bagru Police Station.
Thereafter the matter was reported to the Bagru Police
Station for institution of F.I.R.
On the written report of informant, this case was
instituted vide Bagru P.S. Case No. 33/2022 dated
24.12.2022 for the offences u/s 302, 376(2)(f) of I.P.C. and
Section 6 POCSO Act.
5. After investigation Police submitted charge-sheet
against the accused /appellant for the offences U/s 302,
376(2)(f) I.P.C. and Section 6 POCSO Act.
6. On 23.02.2023, cognizance was taken against
accused/appellant for the offences U/s 302, 376(2)(f) IPC and
Section 6 POCSO Act.
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7. Accordingly, charges U/s 376(2)(f), 302 IPC and Section
6 POCSO Act were framed against the appellant which was
read and explained to him to which he pleaded not guilty and
claimed to be tried.
8. In order to establish charges levelled against accused
person, prosecution examined altogether 17 witnesses which
are as follows:
PW-1 Mehrani Orain
PW-2 Sukhmaniya Oraon
PW-3 Rajmuni Oraon
PW-4 Mrs. X (Informant)
PW-5 Bipasa Oraon
PW-6 Khushboo Kumari
PW-7 Bablu Oraon
PW-8 Sudhir Oraon
PW-9 Priti Oraon
PW-10 Sunil Oraon
PW-11 Biyas Sahu
PW-12 Sulendra Sahu
PW-13 Dr. Anand Kumar
PW-14 Dr. Ajay Kumar Bhagat
PW-15 Kiran Pandit
PW-16 Vishwajit Kumar Singh (I.O.)
PW-17 Pankaj Kumar Sharma (I.O.)
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9. The Defence has not examined any witness in support
of his case.
10. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused/appellant found the
charges levelled against the appellant proved beyond all
reasonable doubts.
11. Accordingly, the appellant had been found guilty and
convicted for the offence punishable under Section 302 of the
Indian Penal Code and Section 6 of the POCSO Act.
12. The aforesaid order of conviction and sentence is
subject matter of instant appeal.
Submission of the learned counsel for the appellant:
13. Learned counsel for the appellant has submitted that
the impugned Judgment of conviction and Order of sentence
passed by the trial court cannot be sustained in the eyes of
law.
14. The following grounds have been taken by the learned
counsel for the appellant in assailing the impugned judgment
of conviction: -
(i) The impugned judgment of conviction and
sentence has been passed mechanically and
without appreciating the evidence available on
record and without taking into consideration the
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evidences in its right perspective, thereby arriving
at erroneous conclusion.
(ii) The impugned judgment is not sustainable either
on facts or in the eyes of law and is fit to be set
aside as the same has been passed on conjectures,
surmises and suspicion.
(iii) The learned Trial Court has failed to appreciate the
fact that the version of PW-1-Mehrani Orain and
PW-2-Sukhmaniya Oraon did not inculpate the
Appellant with certainty and did not prove the case
of the prosecution beyond reasonable doubt.
(iv) The learned Trial Court has failed to appreciate
that PW-3- Rajmuni Oraon was merely a witness
who had seen the dead body and she is not the
witness of alleged occurrence. Further, the PW-3's
version of seizure also casts a serious doubt on the
factum of seizure.
(v) The learned Trial Court has failed to appreciate
that there was improvement in the deposition of
the PW-4- informant in the trial as compared to
her version in the FIR thereby casting a serious
doubt on her testimony.
(vi) Learned Trial Court has failed to appreciate that
the evidence of PW-5 Bipasa Oraon, PW-6
Khushboo Kumari and PW-9 Priti Oraon were
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merely of the nature of 'last seen' and did not
further the case of the prosecution as regard the
alleged occurrence. Further, the learned Trial
Court did not record proper satisfaction that these
witnesses being child witnesses were competent to
understand the facts and circumstances of the
matter.
(vii) The learned Trial Court has failed to appreciate
that the purported confession made by the
Appellant before the PW-7 Bablu Oraon was made
in 'Sadri' language which the witness has
expressed inability to understand in his cross-
examination and hence the entire prosecution
version of Appellant's extra-judicial confession
stood demolished.
(viii) The learned Trial Court has failed to appreciate
that the PW-8 has specifically stated in his cross-
examination that he had not witness the alleged
occurrence as he was at his home.
(ix) The learned Trial Court has failed to appreciate
that the evidence of the PW-10, 11 and 12 was in
the nature of hearsay and hence did not further
the case of the prosecution.
(x) The learned Trial Court has failed to appreciate
that the prosecution had failed to examine Prof.
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Dr. Chandrashekhar Prasad under whose
supervision the post-mortem of the deceased was
conducted, as specifically deposed by PW-13 in his
cross-examination.
(xi) The learned Trial Court has failed to appreciate
that the PW-15 Kiran Pandit in her cross-
examination has specifically stated that the
inquest report does not specifically state that the
dead body was found from near the house of
Tewasi Oraon.
(xii) The learned Trial Court has failed to appreciate the
fact that there is no eye witness to the alleged
occurrence and that the prosecution failed to
examine several material witnesses in order to
unearth the truth of the matter.
(xiii) The learned Trial Court has failed to take into
consideration that the prosecution was unable to
establish the time of death of the deceased with
precision thereby casting a serious doubt on the
entire case of the prosecution.
(xiv) The learned Trial Court has failed to take into
consideration that the forensic report completely
negated the involvement of the Appellant in the
alleged crime since there was no DNA match of the
Appellant with any of the seized materials.
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(xv) The learned Trial Court has failed to take into
consideration that the case was of circumstantial
evidence however none of the chain of
circumstances were complete so as to give rise to
an irrefutable inference that the alleged crime has
been committed by the Appellant.
(xvi) The learned Trial Court has failed to take into
consideration that the last-seen version put forth
by the prosecution was extremely faint and could
not be construed as incriminating material against
the Appellant.
(xvii) The learned Trial Court has failed to take into
consideration that the medical and forensic
evidence did not corroborate the prosecution case.
(xviii) The learned Trial Court has failed to take into
consideration that the extra-judicial confession of
the Appellant was not at all corroborated by any
other evidence led by the prosecution.
(xix) The learned Trial Court has miserably failed to
take into consideration that there are several
inconsistencies, improvement and contradictions
in the evidence of prosecution witnesses, which
cast a serious doubt on the entire case of the
prosecution.
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(xx) The learned Trial Court has failed to properly
appreciate the statement of the Appellants
recorded u/s 351 of the BNSS.
(xxi) The prosecution has not been able to prove the
charges leveled against the accused persons
beyond shadow of all reasonable doubt.
(xxii) The prosecution has failed to establish any motive
of the Appellant for committing the alleged offence.
(xxiii) The learned Trial Court has failed to take into
consideration that the entire investigation was
conducted in hot-haste by the police.
(xxiv) The learned Trial Court has failed to take into
consideration the principle that if offence is proved
by circumstantial evidence ordinarily death penalty
should not be awarded and no 'special reason' has
been recorded by the learned court below which
makes awarding of death penalty imperative.
(xxv) The learned Trial Court has failed to apply and
balance aggravating circumstances with mitigating
circumstances while awarding death penalty to the
Appellant and has also failed to take into
consideration that the Appellant is a young person.
(xxvi) The learned Trial Court has failed to take into
consideration that even if it is held that the
prosecution has been able to prove its case beyond
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reasonable doubt, still the instant case is not
'rarest of rare case warranting imposition of death
penalty.
(xxvii) The learned Trial Court has miserably failed to
record a finding that the Appellant was beyond any
reforms and that the death penalty was the only
option in the facts and circumstances of the case
and that alternative option of a lesser punishment
is unquestionably foreclosed.
(xxviii) Learned counsel, accordingly, submitted that there
being only circumstantial evidence against the
accused and there being no eyewitness to the
occurrence of rape, murder or concealing the dead
body, it was a fit case, in which, the appellant
ought to have been given at least the benefits of
doubt.
15. The learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that, therefore, it is a case
where the judgment of conviction and order of sentence is fit
to be interfered with.
Submission of the learned counsel/P.P for the state:
16. Per contra, Mr. Pankaj Kumar, learned Public
Prosecutor appearing for the State, has submitted by taking
the following grounds in defending the impugned judgment:
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(i) Learned counsel for the State submitted that the
case in hand relates to brutal murder of the victim
girl after commission of rape upon her by the
accused in extremely brutal, gruesome and
diabolical manner, and the case comes within the
category of rarest of rare cases, and as such it is a
fit case in which the death sentence awarded to
the accused by the Trial Court below be confirmed,
irrespective of his age, family background or lack
of criminal antecedents, which cannot be
considered as mitigating circumstances
(ii) Learned State counsel while supporting the death
reference, has placed reliance upon the decisions
of the Hon'ble Apex Court in Bachan Singh Vs.
State of Punjab, reported in (1980) 2 SCC 684
and Machi Singh & Ors. Vs. State of Punjab,
reported in (1983) 3 SCC 470, giving the
necessary guidelines for awarding the death
sentence, and submitted that in Machi Singh's
case (supra), it has been held that when the victim
of murder is an innocent child who could not have
or has not provided even an excuse, much less a
provocation, for murder, the case comes within the
rarest of the rare category, and it is a fit case for
imposing the death sentence.
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(iii) Learned counsel has further placed reliance upon
the decision of the Hon'ble Apex Court in Bantu
Vs. State of U.P., reported in (2008) 11 SCC 113,
which related to the rape and murder of a child,
aged about five years, wherein the Apex Court held
that the case fell within the category of rarest of
rare cases, affirming the death sentence.
(iv) Similarly, in Shivaji Vs. State of Maharashtra,
reported in (2008) 15 SCC 269, which related to
rape and murder of a child aged about nine years,
it was held that the plea that in cases of
circumstantial evidence, the death sentence
should not be awarded, is without any logic. This
case was also found to be falling within the
category of rarest of rare cases, and the death
sentence to the accused was affirmed.
(v) Again in Purushottam Dashrath Borate Vs. State
of Maharashtra, reported in AIR 2015 SC 2170,
the Supreme Court, in a case related to gang rape
and murder of a married woman, re-iterated the
need of imposing just punishment upon the
accused, holding that the undue sympathy shown
to the accused shall do more harm. It was also
held that the age of the accused or his family
background or lack of criminal antecedents,
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cannot alone be considered as mitigating
circumstances. The death sentence was affirmed
by the Hon'ble Apex Court, upon the accused in
spite of his young age.
17. Learned counsel for the State, based upon the aforesaid
pronouncements, has submitted that the impugned judgement
needs no interference.
Response of the learned counsel for the appellant
18. Learned counsel appearing for the appellant, in
response, has submitted that simply because the case relates
to rape and murder of a child, it does not come under the
category of rarest of rare cases.
19. Learned counsel for the appellant, in support of his
contention, has placed reliance upon the decisions of the
Supreme Court in Sebastian Vs. State of Kerela, reported in
(2010) 1 SCC 58, Ram Deo Prasad Vs. State of Bihar,
reported in (2013) 7 SCC 725, Tattu Lodhi Vs. State of
M.P., reported in (2016) 9 SCC 675, and in all these cases,
the child aged between 2 to 7 years were murdered after
committing rape upon them but the Hon'ble Supreme Court,
in the facts of these cases, held that they do not come within
the category of rarest of rare cases, and the death sentence
awarded by the Trial Court, and confirmed by the High Court,
were commuted to life imprisonment.
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20. Learned counsel has also placed reliance upon the
decision of Rameshbhai Chandubhai Rathod (2) Vs. State of
Gujarat, reported in (2011) 2 SCC 764, which also related to
rape and murder of a child by the guard of the building. The
Hon'ble Supreme Court laid down the law that it was
obligatory upon the Trial Court to have given the finding as to
a possible rehabilitation and reformation and the possibility
that the accused could still be a useful member of the society,
in case, he was given a chance to do so, and in absence of
such finding, the death sentence awarded by the Trial Court
and confirmed by the High Court, was commuted to the
sentence for whole life, but subject to any remission or
commutation of sentence by the State Government for good
and social reasons.
21. Placing reliance on these decisions, learned counsel
submitted that the present case also, does not come within the
purview of rarest of rare cases, and it is a fit case in which the
death sentence passed by the Trial Court below be set aside
for the offence under Section 302 of the Indian Penal Code.
22. It has also been submitted that the Trial Court has not
given any finding as to a possible rehabilitation and
reformation of the accused/appellant and in absence of such
finding, the death sentence awarded by the Trial Court cannot
be sustained in the eyes of law.
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Analysis
23. We have heard learned counsel for the parties and
appreciated their arguments.
24. The issues which require consideration based upon the
argument advanced on behalf of the parties are -
(i) whether prosecution has been able to prove charges
levelled against accused person/appellant beyond all
reasonable doubt or not
(ii) Whether the case in hand comes under the purview of
rarest of rare cases?
(iii) Whether there is no alternative but to impose death
sentence in the facts and circumstances of the case?
25. Since all the issues are interlinked and, as such, all are
being taken up together for its consideration. But, before
considering the same, background of the initiation of the case
right from the day of institution of F.I.R. and evidence led on
behalf of the prosecution and the statement recorded under
Section 313 Cr.P.C. need to be referred herein :-
The case of the prosecution is that on 24.12.2022 at
3.00 O'clock the informant alongwith her younger daughter
(victim/deceased aged about 5 years) visited towards roof of
Anganbari for getting the paddy crop parched.
In the meanwhile, her daughter rushed out from there
and started playing with other children. Accused Indar Oraon
aged about 25 years visited there and offered 5 rupees to each
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child and on the other hand her daughter was offered 50
rupees by the accused Indar Oraon.
Accused Indar Oraon wandered alongwith her daughter.
At 4.35 O'clock when she returned home, her daughter was
found to be missing. She inquired whereabout of her daughter
from Indar Oraon accused.
She on suspicion apprehended accused but accused
Indar Oraon strove hard to stifle her in the court yard of
Fuldeo.
In the meanwhile, Sukhmaniya Oraon and Heeramuni
Oraon rushed there and informed her that her daughter was
lying dead. Then Indar Oraon started fleeing from the spot but
he was apprehended by the people who divulged that he
attempted to ravish the victim/deceased behind the house of
Tewasi Oraon during which victim/deceased squealed and in
the said course he stifled her neck causing her death.
It has been alleged that Indar Oraon killed the
victim/deceased when he attempted to ravish her. It has been
also alleged that Indar Oraon was having criminal history of
killing her grand-mother and in this connection earlier a case
was instituted in Bagru Police Station. Thereafter the matter
was reported to the Bagru Police Station for institution of
F.I.R.
26. On the basis of the written report of informant, this case
was instituted for the offences u/s 302, 376(2)(f) of I.P.C. and
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Section 6 POCSO Act and accordingly, the cognizance of the
offences was taken against accused/appellant Indar Oraon
charges were framed for the offences U/s 302, 376(2)(f) IPC
and Section 6 POCSO Act and accordingly trial procedded.
27. In course of trial, the prosecution has examined
altogether 17 witnesses. Their depositions are being referred
herein :-
P.W. 1 is Mehrani Orain. She deposed that occurrence
took place seven months ago on Saturday. It was 5.30 PM. At
that time, she was bringing mud to her house from the field.
In the meanwhile, she noticed that Indar Oraon dragged the
victim inside the bathroom and bolted the bathroom. After
sometime he rushed out from bathroom with having child
(victim/deceased) in his hand and laid the said child beneath
flowering plant. He also shrouded the said child by sack and
eloped from the spot. Then she screamed. Villagers gathered
there and it was traced out that the said child was dead.
Villagers apprehended Indar Oraon. Prior to the alleged
occurrence Indar Oraon had killed her grand-mother. She
identified the accused Indar Oraon present in the court room
through Video Conferencing.
In cross-examination, at paragraph-5 she has stated
that when she was bringing mud at her house then she
noticed that the accused was loitering with deceased/victim.
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She did not notice as to what was done with the
victim/deceased inside the bathroom.
P.W. 2 is Sukhmaniya Oraon. She deposed that alleged
occurrence took place 6-7 months ago. At 4.00 PM Indar
Oraon was seen loitering with the victim/deceased. Thereafter
she heard the screaming sound of Mehrani (PW 1) and noticed
that the said victim child was lying dead beneath the plant of
Marigold. Indar Oraon had killed her. Police rushed there and
seized rice sack and small piece of cement plaster from the
alleged place of occurrence. Seizure list was prepared upon
which she provided her thumb impression. She identified the
accused Indar Oraon present in the court room through Video
Conferencing.
During cross-examination she asserted that she has not
witnessed the alleged occurrence.
P.W. 3 is Rajmuni Oraon. She deposed that alleged
occurrence took place on 24.12.2022. In the evening when she
rushed to bathroom to wash her legs then she noticed that the
informant's daughter (victim/deceased) was lying dead there.
Thereafter she raised alarm. The dead body was lying
shrouded by sack beneath marigold plant situated outside the
alleged said bathroom. On hulla Hiramuni and Sukhmaniya
rushed there who informed the informant regarding the said
matter. Police also rushed on the spot. Informant inquired the
matter from the Indar then he started to elope. Sudhir and
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Bablu apprehended him. Police seized bloodstained rice sack
and cement plaster. Seizure list was prepared which bears her
signature. She proved her signature thereon as Ext. P-1. She
identified the accused Indar Oraon present in the court room
through Video Conferencing.
During cross-examination she asserted that she noticed
the dead body of child lying there. The dead body was
shrouded with sack.
P.W. 4 is Mrs. X (victim's mother-cum-informant).
She deposed that occurrence took place on 24.12.2022. Her
daughter was playing with her friends. She was indulged in
some cultivation work and when she returned home at 4.30
PM, her daughter was found to be missing. Then she inquired
the whereabout of her daughter from her daughter's friends.
They divulged to her that Indar Oraon provided them 20
rupees and he also provided 50 rupees to the deceased/victim.
They also narrated to her that they rushed towards shop for
biscuit and chocolate while Indar was loitering with the
deceased/victim. Frantic search was made by her then she
rushed towards chowk where she came across Indar Oraon
who was eating chowmin there. When she inquired the matter
from Indar then Indar Oraon started trembling and the
chowmin plate fell down on ground. Sukhmaniya and
Hiramani visited there who unfolded to her that her daughter
was lying behind the bathroom of Dewasi Oraon. Indar Oraon
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strove hard to elope from there but Sudhir Oraon and Bablu
Oraon apprehended Indar after chase who confessed before
the villagers that he stifled the deceased/victim after
committing rape upon her in the bathroom of Dewasi Oraon.
Police visited there. There was scratch mark over the cheek of
deceased/victim. There was strangulation mark over the neck
of the deceased/victim. Deceased/victim was of five years and
two months at the time of alleged occurrence. Blood also
exuded from the private part of deceased/victim. Then she
instituted this case. She proved the said written report as Ext.
P-2. Postmortem was done at RIMS Ranchi. Accused had also
earlier committed the murder of his grand-mother. She
identified the accused Indar Oraon present in the court room
through Video Conferencing.
During cross-examination, at paragraph 16, she has
stated that she did not notice Indar enticing her daughter
away. Children playing along with her daughter narrated to
her that Indar caused them to visit the shop and, in the
meanwhile, he was seen to be loitering with her daughter.
During para no. 17 of cross-examination, she asserted that
she did not notice accused offering money to the children.
P.W. 5 is Bipasa Oraon. This witness is aged about 8
years. She deposed that she was the student of class IV and
the alleged occurrence took place seven months ago. She had
returned from her school at 3.00 PM. Thereafter she, Priti,
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Khushboo and deceased/victim were playing in court yard.
Indar rushed on the spot and he provided 20 rupees to them.
He also provided 50 rupees to the deceased/victim. He also
caused her and her friends to go outside to have some
refreshment. He clasped the deceased/victim due to which
deceased/victim could not accompany her. Thereafter she
rushed to the shop to have chocolate and biscuit. When she
returned from the shop then deceased/victim and accused
Indar were not present there. When they were going home
then the mother of deceased/victim asked whereabout of her
daughter then she narrated that Indar was loitering with her.
One lady visited towards her washroom then she noticed the
dead body of deceased/victim was lying there shrouded with
sack. She noticed that blood percolated from her mouth and
50 rupees note was lying in her hand. She came to have learnt
that Indar slayed her. She identified the accused Indar Oraon
present in the court room through Video Conferencing.
During cross-examination, she has stated at paragraph
11 that she took 20 rupees from Indar and rushed towards
shop. After half an hour she returned from shop. In para no.
14 she has also stated that when she was going to the shop
then deceased was along with Indar.
P.W. 6 is Khushboo Kumari. This witness is aged
about 11 years old. She deposed that she was the student of
class IV and the alleged occurrence took place seven months
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ago. She had returned from her school at 3.00 PM. Thereafter
she, Priti, Bipasa and deceased/victim were playing in court
yard. Indar rushed on the spot and he provided 20 rupees to
them. He also provided 50 rupees to the deceased/victim. He
also caused her and her friends to go outside to have some
sweets. He asked deceased/victim to stay with him and let her
friends to visit the shop. Thereafter she along with her friends
(except deceased/victim) rushed to the shop. When she along
with her friends returned from the shop then they found
deceased/victim and accused Indar missing from the said
court yard. She narrated to the deceased's mother about
loitering of deceased/victim with accused Indar. She came to
have learnt that Indar slayed deceased/victim in the bathroom
covering her dead body behind the bathroom by cement sack.
She identified the accused Indar Oraon present in the court
room through Video Conferencing.
In her cross-examination, she has stated at paragraph
13 that Indar on the alleged date of occurrence offered money
to her.
P.W. 7 is Bablu Oraon. He deposed that occurrence
took place on 24.12.2022. During that time, he was at his
house then he heard some hulla. He rushed out and noticed
the over crowd-ness near the Areya Chowmin Shop. Indar
Oraon strove hard to elope from there but on the hulla of
villagers he apprehended Indar Oraon. Villagers also thronged
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there. Indar Oraon narrated to them that he stifled the
deceased/victim after committing rape upon her and also
unravelled to them that he shrouded the body of victim by
sack near flower plant situated at the bathroom of Tewasi
Oraon. On this disclosure he along with villagers rushed on
the spot and found the dead body of victim lying there. He
identified the accused Indar Oraon present in the court room
through Video Conferencing.
In his cross-examination, he has stated at paragraph 5
that he had not witnessed the alleged occurrence rather he
rushed to the spot after the completion of alleged occurrence.
Indar was apprehended by him and Sudhir. Villagers also
thronged there. The language used by the accused in course of
disclosure was Sadri. No material contradictions could be
extracted by the defence.
P.W. 8 is Sudhir Oraon. He deposed that occurrence
took place on 24.12.2022. He heard some hulla emanating
from Areya Chowk. He rushed towards there. People crowded
at the chowmin shop. He noticed that informant was asking
whereabout of her daughter from Indar Oraon. Indar Oraon
was puzzled and chowmin plate fell down from his hand. In
the meanwhile Hiramani and Sukhmaniya visited there, who
narrated to the informant that her daughter was found to be
dead near the bathroom of Tewasi Oraon. Indar Oraon strove
hard to elope from there. Then he and Bablu Oraon
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apprehended Indar Oraon after chase. Indar Oraon unravelled
to them that he stifled the deceased/victim after committing
rape upon her and also disclosed to them that he shrouded
the body of victim by sack near flower plant situated at the
bathroom of Tewasi Oraon. On this disclosure he along with
villagers rushed on the spot and found the dead body of victim
lying there. He also noticed nail and hand impression over the
neck of deceased/victim. He identified the accused Indar
Oraon present in the court room through Video Conferencing.
During cross-examination he has deposed that he has
not witnessed the alleged occurrence. He and Bablu Oraon
apprehended the accused Indar Oraon.
P.W. 9 is Priti Oraon. This witness is aged about 06
years. She deposed that she was the student of class II and
asserted that on the alleged date of occurrence she along with
Khushboo, Bipasa and deceased/victim was playing in court
yard. Indar rushed on the spot and he provided 20 rupees to
them. He also provided 50 rupees to the deceased/victim. He
also caused her and her friends to go outside to have biscuit.
He ushered deceased/victim along with him. Informant asked
whereabout of her daughter then she narrated to her that the
deceased/victim was with Indar. Indar took the
deceased/victim towards the bathroom of Gabbar Oraon.
Indar slayed the victim and concealed her body behind
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bathroom. She identified the accused Indar Oraon present in
the court room.
In her cross-examination, she has deposed that she was
given 20 rupees and she rushed to the shop to have some
biscuit. Her friend (deceased/victim) was along with Indar at
that time. They returned back after having biscuit then she
noticed that deceased/victim was not present there.
P.W. 10 is Sunil Oraon. He deposed that occurrence
took place on 24.12.2022. In the evening the deceased/victim
was found to be traceless to whom his sister-in-law was
searching. After some time, he heard some hulla. He rushed
there and noticed that the dead body of deceased/victim was
lying beneath the marigold plant situated near the bathroom
of Tewasi Oraon and the same was draped by sack. Indar
Oraon killed the deceased/victim. He along with other
apprehended Indar Oraon and consigned him to the Police. In
this matter a Panchayati was also held in the village. He also
proved his signature present over the resolution of the
Panchayat as Ext. P-3. He identified the accused Indar Oraon
present in the court room.
At paragraph 16 of cross-examination, he asserted that
he has not noticed accused enticing away the
deceased/victim.
P.W. 11 is Biyas Sahu. He deposed that occurrence
took place on 24.12.2022. At that time, he was at Jogiya
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Chowk. He heard hulla and noticed that informant was asking
whereabout of her daughter from Indar. In the meanwhile,
Hiramani and Sukhmaniya visited there, who narrated to the
informant that her daughter was found to be dead near the
bathroom of Tewasi Oraon. The matter was inquired from
Indar Oraon then Indar Oraon unravelled to them that he
stifled the deceased/victim after committing rape upon her
and also disclosed to them that he shrouded the body of victim
by sack near marigold flower. On this disclosure he rushed on
the spot and found the dead body of victim lying there. In this
matter a Panchayati was also held in the village. He also
proved his signature present over the resolution of the
Panchayat as Ext. P-4. He identified the accused Indar Oraon
present in the court room.
During cross-examination he has deposed that he has
not witnessed the alleged occurrence.
P.W. 12 is Sulendra Sahu. He deposed that occurrence
took place on 24.12.2022. It was 5.00 O'clock in evening. He
heard some hulla and rushed out from his house and visited
towards chowmin shop at Jogiya Chowk. Accused Indar was
taking chowmin. In the meanwhile, informant asked
whereabout of her daughter from Indar. The chowmin plate fell
down on the ground from the hands of Indar. In the
meanwhile, Sukhmania and another lady visited there, who
narrated to her that her daughter was lying dead near the
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bathroom of Tewasi. In the meanwhile, accused strove hard to
elope from there but he was apprehended by Sudhir and
Bablu Oraon. Villagers also thronged there. Indar, on being
inquired, unfolded that he stifled the deceased/victim after
committing rape upon her and also disclosed to them that he
shrouded the body of victim by sack near marigold flower. On
this disclosure he rushed on the spot and found the dead body
of victim lying there. He identified the accused Indar Oraon
present in the court room.
During cross-examination, at paragraph 5 he has
deposed that he has not witnessed the alleged occurrence of
Murder and Rape of the deceased.
P.W. 13 - Dr. Anand Kumar. He conducted postmortem
examination alongwith Dr. Ajay Kumar Bhagat on the dead
body of victim on 25.12.2022 and as per postmortem report
following observations were noticed by the P.W. 13 which are
as follows:-
(i) The body was of average built.
(ii) Rigor mortise was present in eye lids, muscles of
face, lower jaw, neck, upper limbs, fingers, muscles of
chest and abdomen, lower limbs and toes. Abdomen
was slightly distended.
(iii) Nails were cyanosed. Face was deeply congested.
Facial petechial haemorrhages were present. Scleral
haemorrhages and multiple petechial haemorrhages
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were present in the bulbar as well as palpebral
conjunctiva of both eyes. Froth was present at nostrils.
Face and cloths were stained with dry blood. Inner
thighs, vulva and perianal areas were also stained with
dry blood.
Abrasions (bright red in colour/fresh)
(i) Multiple abrasions, 16 in number, varying in
shape from being linear, semilunar and curvilinear,
ranging in size from 0.5 cm x 0.25 cm to 4cm x 1 cm
over middle part of anterior aspect of neck.
(ii) 2cm x 2cm over middle part of left cheek.
(iii) 2cm x 1cm over left side of chin.
(iv) 1.5cm x 1cm over anteromedial aspect of left
elbow.
Bruises (reddish in colour/fresh)
(i) Multiple discoid bruises of size 1cm to 2cm, with
several larger areas of confluent bruising over
middle part of anterior aspect of neck
(ii) 5cm x 2cm over lower part of right cheek and
adjacent chin
(iii) 2cm x 1.5cm over anterior aspect of upper part of
neck.
(iv) Multiple discoid bruises of size 1cm to 2cm over
inner side of thighs
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Internal
(i) Diffuse areas of bruise on the inner surface of
both lips.
(ii) Diffuse contusion of subcutaneous tissues of
neck, platysma, sternocleidomastoid, sternohyoid
and omohyoid muscles of neck and thyroid
capsules. These were torn at places with
extravasation and infiltration of blood and blood
clots at the site of injuries.
(iii) Fracture of left greater horn of hyoid bone with
extravasation of blood in and around the margins
of fracture.
(iv) Mucosal hemorrhages in the interior of larynx.
(v) Hematoma measuring 2.5cm x 0.5cm present over
posterior surface of trachea.
(vi) Diffuse contusion of anterior and middle scalene
muscles of neck with extravasation and
infiltration of blood and blood clots in the muscles
tissues.
(vii) Multiple subpleural and epicardial petechial
hemorrhages.
(viii) Diffuse contusion of soft tissue of vulval labia,
vaginal introitus, perianal and anus, that is over
dilated.
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(ix) Circumferential tear of hymen at multiple places
and laceration of posterior fourchette, with
presence of blood and blood clots in the vaginal
introitus.
(x) Diffuse contusion of uterus with presence of blood
and blood clots in the uterine cavity.
(xi) Laceration of margins of anus, with presence of
longitudinal tear extending from right anal margin
to the right lateral wall of anal canal, with
presence of blood and blood clots in the anal
canal and perianal areas.
(xii) There was evidence of vital reaction at the site of
injuries
Opinion
(i) The above noted injuries were antemortem in
nature caused by hard and blunt object(s).
(ii) Death was due to asphyxia as a result of manual
strangulation.
(iii) Time elapse since death was 12 hours to 36 hours
from the time of postmortem examination.
(iv) The deceased had been sexually assaulted by hard
and blunt object(s), with evidence of forceful
vaginal and anal penetration.
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(v) The viscera had been kept preserved. The I.O. was
directed to collect and submit the preserved
viscera to SFSL for chemical analysis
P.W. 14 is Dr. Ajay Kumar Bhagat. He conducted
postmortem examination alongwith Dr. Anand Kumar (PW 13)
on the dead body of victim on 25.12.2022 and proved his
signature and seal as Ext. P-6 on the same postmortem report
of victim.
P.W. 15 is Kiran Pandit. She deposed that on
24.12.2022 he was posted as Officer-in-charge of Mahila
Police Station, Lohardaga. On that day, an information of
murder and ravishment of a child was received then she
visited Areya village under Bagru Police Station and prepared
inquest report. She proved carbon copy of inquest report as
Ext. P-8. It also bears the signature and thumb impression of
witnesses namely Tara Oraon and Sukhmaniya Oraon (P.W.2).
During cross examination she has deposed that there is
no depiction of recovery of dead body from the vicinity of the
house of Tewasi Oraon in inquest report. She did not record
the statement of witnesses.
P.W. 16 is Vishwajit Kumar Singh, who is the I.O. of
this case. He has deposed that on 24.12.2022 he received an
information on 17.15 Hours of a murder of a child at village
Areya within Bagru cemented plaster-floor. Blood stained rice
sack was also recovered Police Station. On this information he
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along with other Police Officials departed to the village Areya
for the verification. He was also accompanied by then Mahila
Police Station Officer-in-charge S.I. Kiran Pandit. Thereafter
inquest report was prepared and the dead body was sent to
the Sadar Hospital for postmortem. But postmortem could not
be conducted at Sadar Hospital thereafter the dead body was
sent to RIMS, Ranchi. He also collected the garments worn by
the deceased in sealed condition provided by the doctors
conducting postmortem. Thereafter on the written report of
the informant, he registered this case as Bagru P.S. case no.
33/2022 and started investigation. He proved endorsement
over written report as Ext. P-9. He also proved Formal FIR as
Ext. P-10. He also recorded the re-statement of the informant
and recorded the statements of Rajmuni Oraon, Sukhmaniya
Oraon, Mehrani Oraon, Bablu Oraon, Sudhir Oraon, Sunil
Oraon, Bipasa Oraon, Khushboo Kumari, Priti Kumari, Biyas
Sahu, Sulendra Sahu in course of investigation. He also
deposed whatever he did during investigation i.e. recording of
statement of witnesses u/s 161 Cr.P.C. affirming the place of
occurrence etc. The alleged place of occurrence is the secluded
place nearby Marigold Plant situated near the bathroom of
Tewasi Oraon at village Areya, Bagru. Blood stained mark was
traced out over the from the alleged place of occurrence. He
seized piece of Blood stained cemented plastered-floor and
prepared seizure list. He proved the said seizure list as Ext. P-
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11. He also procured the criminal history of accused and
detected that the accused Indar Oraon was also an accused in
Bagru P.S. 11/2021 with having indictment of killing his
grand-mother. He also procured postmortem report. He also
gleaned vaginal swab of deceased, nail clipping and dried
blood sample in sealed condition. Thereafter he was
transferred on 03.02.2023.
During cross examination he has deposed that accused
was consigned by villagers into Police custody nearby the
alleged place of occurrence. The alleged place of occurrence is
the area adjacent to the bathroom of the house of Tewasi Oraon
situated in village Areya. The dead body of the deceased was
found 10 feet away from the house of Sumit Oraon. Para no.
29 of cross-examination of PW 16 stated that there was no
ocular witness of alleged occurrence. He got the seized
material sealed at the alleged place of occurrence.
P.W. 17 is Pankaj Kumar Sharma. On 03.02.2023 he
was posted as Officer-in-charge of Bagru Police Station and
took the charge of remaining investigation of Bagru P.S. case
no. 33/2022. He sent seized exhibit materials and blood
sample of accused to SFSL, Ranchi for examination. He also
recorded the statement of S.I. Kiran Pandit. Thereafter he
submitted charge-sheet no. 07/2023 dated 22.02.2023
against accused Indar Oraon.
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During cross examination he has deposed that the
seized materials were in sealed condition. He did not put any
signature over the sealed materials.
28. The learned trial court has accepted the version of the
prosecution and convicted the appellants under Section
Sections 302 of the Indian Penal Code and Section 6 of the
POCSO Act and sentenced him to the capital punishment of
death, for the offence under Section 302 of the Indian Penal
Code, directing him to be hanged by neck till his death. He is
also sentenced to undergo R.I. for life for the offence under
Section 6 of the POCSO Act, which is the subject matter of the
present appeal.
29. Admittedly in this case as per the version of I.O. (PW
16), no ocular witness was traced out in course of
investigation to vindicate the alleged occurrence of ravishment
and murder of the deceased/victim by the hands of accused
Indar Oraon. In such situation the prosecution case rests
upon circumstantial evidence.
30. Thus, before venturing to the merit of the case it would
be apt to discuss herein the settled proposition of law on the
issue of circumstantial evidence based up the last seen theory.
31. The Hon'ble Apex Court in the year 1952, in the
judgment rendered in Hanumant Son of Govind Nargundkar
vs. State of Madhya Pradesh [AIR 1952 SC 343] has laid
down the parameters under which, the case of circumstantial
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evidence is to be evaluated, which suggests that: "It is well to
remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance
be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability the act must have been done
by the accused. ......"
32. The judgment referred in Hanumant (supra) has been
consistently followed by Hon'ble Apex Court in the judgment
rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh
[(1969) 3 SCC 198]; Ram Gopal Vs. State of
Maharashtra [(1972) 4 SCC 625] and Sharad Birdhichand
Sarda Vs. State of Maharashtra [(1984) 4 SCC 116 and also
in Musheer Khan alias Badshah Khan & Anr. Vs. State of
Madhya Pradesh [(2010) 2 SCC 748.
33. The Hon'ble Apex Court in Musheer Khan (Supra) while
discussing the nature of circumstantial evidence and the
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burden of proof of prosecution has held as under paragraph
nos. 39 to 46 as under:
"39. In a case of circumstantial evidence, one must look
for complete chain of circumstances and not on snapped
and scattered links which do not make a complete
sequence. This Court finds that this case is entirely
based on circumstantial evidence. While appreciating
circumstantial evidence, the Court must adopt a cautious
approach as circumstantial evidence is "inferential
evidence" and proof in such a case is derivable by
inference from circumstances.
40.Chief Justice Fletcher Moulton once observed that
"proof does not mean rigid mathematical formula" since
"that is impossible". However, proof must mean such
evidence as would induce a reasonable man to come to a
definite conclusion. Circumstantial evidence, on the other
hand, has been compared by Lord Coleridge "like a
gossamer thread, light and as unsubstantial as the air
itself and may vanish with the merest of touches". The
learned Judge also observed that such evidence may be
strong in parts but it may also leave great gaps and rents
through which the accused may escape. Therefore,
certain rules have been judicially evolved for appreciation
of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as
the basis of any legal inference from circumstantial
evidence must be clearly proved beyond any reasonable
doubt. If conviction rests solely on circumstantial
evidence, it must create a network from which there is no
escape for the accused. The facts evolving out of such
circumstantial evidence must be such as not to admit of
any inference except that of guilt of the accused.
(See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963
SC 74 : (1963) 1 Cri LJ 70] )
42. The second principle is that all the links in the chain
of evidence must be proved beyond reasonable doubt and
they must exclude the evidence of guilt of any other
person than the accused. (See State of U.P. v. Dr.
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Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC
(Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.)
43. While appreciating circumstantial evidence, we must
remember the principle laid down in Ashraf Ali v. King
Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that
when in a criminal case there is conflict between
presumption of innocence and any other presumption,
the former must prevail.
44. The next principle is that in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and are
incapable of explanation upon any other reasonable
hypothesis except his guilt.
45. When a murder charge is to be proved solely on
circumstantial evidence, as in this case, presumption of
innocence of the accused must have a dominant
role. In Nibaran Chandra Roy v. King Emperor [11 CWN
1085] it was held that the fact that an accused person
was found with a gun in his hand immediately after a
gun was fired and a man was killed on the spot from
which the gun was fired may be strong circumstantial
evidence against the accused, but it is an error of law to
hold that the burden of proving innocence lies upon the
accused under such circumstances. It seems, therefore,
to follow that whatever force a presumption arising
under Section 106 of the Evidence Act may have in civil
or in less serious criminal cases, in a trial for murder it is
extremely weak in comparison with the dominant
presumption of innocence.
46. The same principles have been followed by the
Constitution Bench of this Court in Govinda Reddy v.
State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137]
where the learned Judges quoted the principles laid down
in Hanumant Govind Nargundkar v. State of M.P. [(1952)
2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio
in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 :1953 Cri
LJ 129] quoted in AIR para 5, p. 30 of the Report in
Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are:
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"5. ... „10. ... in cases where the evidence is of a
circumstantial nature, the circumstances [which lead to
the conclusion of guilt should be in the first instance]
fully established, and all the facts so established should
be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such
as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the
accused and it must be [shown] that within all human
probability the act must have been [committed] by the
accused.‟ [As observed in Hanumant Govind Nargundkar
v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at
pp. 345-46, para 10.] " The same principle has also been
followed by this Court in Mohan Lal Pangasa v. State of
U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974
SC 1144] "
34. Thus, it is evident that for proving the charge on the
basis of circumstantial evidence, it would be necessary that
evidence so available must induce a reasonable man to come
to a definite conclusion of proving of guilt; meaning thereby
there must be a chain of evidence so far it is complete as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to
show that within all human probability the act must have
been done by the accused.
35. There is no dispute regarding the settled position of law
that in the case of circumstantial evidence, the chain is to be
complete then only there will be conviction of the concerned
accused person but, the circumstances should be of a
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conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it
must be such as to show that within all human probability
the act must have been done by the accused.
36. The same view has been taken by the Hon'ble Apex
Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC
182 wherein the Hon'ble Apex Court has observed that the
principle in a case resting on circumstantial evidence is well
settled that the circumstances put forward must be
satisfactorily proved and those circumstances should be
consistent only with the hypothesis of the guilt of the accused.
These circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability the act must have been done
by the accused.
37. The Hon'ble Apex Court while laying down such
proposition in the said case has considered the factual aspect
revolving around therein and while considering the fact has
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only found the incriminating evidence against the appellant
was his pointing the place where the dead body of the
deceased had been thrown which the Hon'ble Apex Court has
not considered to be circumstantial evidence though
undoubtedly it raises a strong suspicion against the appellant.
the Hon'ble Apex Court while coming to such conclusion has
observed that even if he was not a party to the murder, the
appellant could have come to know the place where the dead
body of the deceased had been thrown. Hence anyone who saw
those parts could have inferred that the dead body must have
been thrown into the river near about that place. In that
pretext, the law has been laid down at paragraph-9 thereof,
which reads as under:
"9. The law relating to circumstantial evidence has been
stated by this Court in numerous decisions. It is needless
to refer to them as the law on the point is well-settled. In
a case resting on circumstantial evidence, the
circumstances put forward must be satisfactorily proved
and those circumstances should be consistent only with
the hypothesis of the guilt of the accused. Again those
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused."
38. Further, in this regard, reference is required to be made
of the judgments rendered by Hon'ble Apex Court in Anwar
Ali Vs. State of Himachal Pradesh (2020) 10 SCC 166 and
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Mohd. Yonus Ali Tarafdar Vs. State of West Bengal,
(2020) 3 SCC 747 wherein the Hon'ble Apex Court has laid
down the following propositions to be taken into consideration
in a case based on circumstantial evidences :-
(i) The circumstances from which the conclusion of guilt is
to be drawn should be fully established;
(ii) The circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused;
(iii) The circumstances taken cumulatively should form a
chain so far complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused;
(iv) The circumstances should be consistent only with the
hypothesis regarding the guilt of the accused; and
(v) They must exclude every possible hypothesis except the
one which is sought to be proved.
39. The authoritative judgment in the aforesaid context is
the Sharad Birdhichand Sarda vs. State of Maharashtra,
(supra) wherein the Hon'ble Apex Court has held all the above
five principles to be the golden principles which constitute the
"panchsheel" of the proof of a case based on circumstantial
evidence. The Hon'ble Apex Court in the said case as under
paragraph-155, 156, 157, 158 and 159 has been pleased to
hold that if these conditions are fulfilled only then a Court can
use a false explanation or a false defence as an additional link
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to lend an assurance to the court and not otherwise.
Paragraphs-155, 156, 157, 158 and 159 of the said judgment
read as under:
"155. It may be interesting to note that as regards the
mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus
delicti, the statement of law as to proof of the same was
laid down by Gresson, J. (and concurred by 3 more
Judges) in King v. Horry [1952 NZLR 111] thus: "Before
he can be convicted, the fact of death should be proved
by such circumstances as render the commission of the
crime morally certain and leave no ground for reasonable
doubt: the circumstantial evidence should be so cogent
and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be
accounted for." 156. Lord Goddard slightly modified the
expression "morally certain" by "such circumstances as
render the commission of the crime certain". 157. This
indicates the cardinal principle of criminal jurisprudence
that a case can be said to be proved only when there is
certain and explicit evidence and no person can be
convicted on pure moral conviction. Horry case [1952
NZLR 111] was approved by this Court in Anant
Chintaman Lagu v. State of Bombay [AIR 1960 SC 500]
Lagu case [AIR 1960 SC 500] as also the principles
enunciated by this Court in Hanumant case [(1952) 2
SCC 71] have been uniformly and consistently followed in
all later decisions of this Court without any single
exception. To quote a few cases -- Tufail case [(1969) 3
SCC 198] , Ramgopal case [(1972) 4 SCC 625] ,
Chandrakant Nyalchand Seth v. State of Bombay [
Criminal Appeal No 120 of 1957,], Dharambir Singh v.
State of Punjab [ Criminal Appeal No 98 of 1958,]. There
are a number of other cases where although Hanumant
case [(1952) 2 SCC] has not been expressly noticed but
the same principles have been expounded and reiterated,
as in Naseem Ahmed v. Delhi Administration [(1974) 3
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SCC 668, 670] , Mohan Lal Pangasa v. State of U.P.
[(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State
of Maharashtra [(1981) 2 SCC 35, 39] and M.G. Agarwal
v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR
405,] -- a five-Judge Bench decision. 158. It may be
necessary here to notice a very forceful argument
submitted by the Additional Solicitor General relying on a
decision of this Court in Deonandan Mishra v. State of
Bihar [AIR 1955 SC 801] to supplement his argument
that if the defence case is false it would constitute an
additional link so as to fortify the prosecution case. With
due respect to the learned Additional Solicitor-General we
are unable to agree with the interpretation given by him
of the aforesaid case, the relevant portion of which may
be extracted thus: "But in a case like this where the
various links as stated above have been satisfactorily
made out and the circumstances point to the appellant
as the probable assailant, with reasonable definiteness
and in proximity to the deceased as regards time and
situation. such absence of explanation or false
explanation would itself be an additional link which
completes the chain."
159. It will be seen that this Court while taking into
account the absence of explanation or a false explanation
did hold that it will amount to be an additional link to
complete the chain but these observations must be read
in the light of what this Court said earlier viz. before a
false explanation can be used as additional link, the
following essential conditions must be satisfied: (1)
various links in the chain of evidence led by the
prosecution have been satisfactorily proved, (2) the said
circumstance points to the guilt of the accused with
reasonable definiteness, and (3) the circumstance is in
proximity to the time and situation."
40. The foremost requirement in the case of circumstantial
evidence is that the chain is to be completed. In Padala Veera
Reddy v. State of A.P. [1989 Supp. (2) SCC 706], the
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Hon'ble Apex Court held that when a case rests upon
circumstantial evidence, the following tests must be satisfied:
"10. ... (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."
41. Thus, it is evident that for proving the charge on the
basis of circumstantial evidence, it would be necessary that
evidence so available must induce a reasonable man to come
to a definite conclusion of proving of guilt; meaning thereby
there must be a chain of evidence so far it is complete as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to
show that within all human probability the act must have
been done by the accused.
42. A theory of "accused last seen in the company of the
deceased" is a strong circumstance against the accused while
appreciating the circumstantial evidence. In such cases,
unless the accused is able to explain properly the material
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circumstances appearing against him, he can be held guilty
for commission of offence for which he is charged.
43. The Hon'ble Apex Court in the case of Satpal v. State of
Haryana, (2018) 6 SCC 610 has observed that when there is
no eyewitness to the occurrence but only circumstances
coupled with the fact of the deceased having been last seen
with the appellant, the Criminal jurisprudence and the
plethora of judicial precedents leave little room for
reconsideration of the basic principles for invocation of the
last seen theory as a facet of circumstantial evidence.
Succinctly stated, it may be a weak kind of evidence by itself
to found conviction upon the same singularly. For ready
reference the relevant paragraph is being quoted as under:
"6. We have considered the respective submissions and
the evidence on record. There is no eyewitness to the
occurrence but only circumstances coupled with the fact
of the deceased having been last seen with the appellant.
Criminal jurisprudence and the plethora of judicial
precedents leave little room for reconsideration of the
basic principles for invocation of the last seen theory as a
facet of circumstantial evidence. Succinctly stated, it may
be a weak kind of evidence by itself to found conviction
upon the same singularly. But when it is coupled with
other circumstances such as the time when the deceased
was last seen with the accused, and the recovery of the
corpse being in very close proximity of time, the accused
owes an explanation under Section 106 of the Evidence
Act with regard to the circumstances under which death
may have taken place. If the accused offers no
explanation, or furnishes a wrong explanation, absconds,
motive is established, and there is corroborative evidence
available inter alia in the form of recovery or otherwise
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forming a chain of circumstances leading to the only
inference for guilt of the accused, incompatible with any
possible hypothesis of innocence, conviction can be based
on the same. If there be any doubt or break in the link of
chain of circumstances, the benefit of doubt must go to
the accused. Each case will therefore have to be
examined on its own facts for invocation of the doctrine."
44. In the backdrop of the aforesaid discussed settled legal
position this Court is now adverting to the factual aspect of
the instant case in order to find that whether charges against
the present appellant have been proved beyond reasonable
doubt.
45. The evidences adduced by PW 1, PW 2, PW 5, PW 6 and
PW 9 support the case of prosecution in palpable way in
respect of "last seen circumstances ".
46. P.W. 5, PW 6 and PW 9 are the child witnesses who are
said to be playing with the victim/deceased at 3.00 PM on
24.12.2022 at village Areya, Bagru, Lohardaga.
47. P.W. 5 is Bipasa Oraon. This witness is aged about 8
years. She deposed that she is the student of class IV and the
alleged occurrence took place seven months ago. She had
returned from her school at 3.00 PM. Thereafter she, Priti,
Khushboo and deceased/victim were playing in court yard.
Indar rushed on the spot and he provided 20 rupees to them.
He also provided 50 rupees to the deceased/victim. He also
asked her and her friends to go outside to have some
refreshment. He grasped the deceased victim due to which
victim did not accompany her. Thereafter she rushed to the
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shop to have chocolate and biscuit. When she returned from
the shop then deceased and accused Indar were not present
there. When they were going home then the mother of
deceased asked whereabout of her daughter then she narrated
that Indar was loitering with her. One lady visited towards her
washroom then she noticed the dead body of deceased was
lying there shrouded with sack. She noticed that blood
percolated from her mouth and 50 rupees note was lying in
her hand. She came to have learnt that Indar slayed her. In
cross-examination she reiterated that she took 20 rupees from
Indar and rushed towards shop. After half an hour she
returned from shop. She Has also asserted that when she was
going to the shop then deceased/victim was along with Indar.
48. From the aforesaid deposition, no vital contradiction is
originating which could cast doubt over her veracity and her
version that the accused was last seen with victim/deceased
when she was dispelled by the accused Indar Oraon from the
place where she was playing with victim/deceased remained
unassailed.
49. P.W. 6 is Khushboo Kumari. This witness is aged about
11 years. She deposed that she is the student of class IV and
the alleged occurrence took place seven months ago. She had
returned from her school at 3.00 PM. Thereafter she, Priti,
Bipasa and deceased/victim were playing in court yard. Indar
rushed on the spot and he provided 20 rupees to them. He
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also provided 50 rupees to the deceased. He also caused her
and her friends to go outside to have some sweets. He asked
deceased/victim to stay with him and let her friends to visit
the shop. Thereafter she along with her friends (except
deceased) rushed to the shop. When she along with her friends
returned from the shop then they found deceased and accused
Indar missing from the said court yard. She narrated to the
deceased's mother about loitering of deceased with accused
Indar. She came to have learnt that Indar slayed deceased in
the bathroom covering her dead body behind the bathroom by
cement sack. During para no. 13 of cross-examination she
asserted that Indar coaxed her and her friends by providing
money. No vital contradiction is emanating from her cross-
examination which could cast doubt over her veracity and her
version that the accused was last seen with victim/deceased
when she was dispelled by the accused Indar Oraon from the
place where she was playing with victim/deceased remained
intact.
50. Another material witness is PW 9 Priti Oraon who is
said to have been playing with PW 5 and PW 6 and
victim/deceased on the alleged date and time of occurrence.
This witness is aged about 06 years. She has deposed that she
was the student of class II and asserted that on the alleged
date of occurrence she alongwith Khushboo, Bipasa and
deceased/victim was playing in court yard. Indar rushed on
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the spot and he provided 20 rupees to them. He also provided
50 rupees to the deceased. He also caused her and her friends
to go outside to have biscuit. He ushered deceased/victim
along with him. Informant asked whereabout of her daughter
then she narrated to her that the deceased victim was with
Indar. Indar took the deceased/victim towards the bathroom
of Gabbar Oraon. Indar slayed the victim and concealed her
body behind bathroom. During cross-examination she
asserted that she was provided 20 rupees and she rushed to
the shop to have some biscuit. Her friend (deceased/victim)
was along with Indar at that time. They returned back after
having biscuit then she noticed that deceased victim was not
present there. No vital contradiction is emanating from her
cross-examination which could cast doubt over her veracity
and her version that the accused was last seen with
victim/deceased when she was dispelled by the accused Indar
Oraon from the place where she was playing with
victim/deceased remained unassailed.
51. Herein the learned counsel for the appellant has raised
the issue that the learned Trial Court did not record proper
satisfaction that P.W. 5,6 and 9 being child witnesses were
competent to understand the facts and circumstances of the
matter.
52. In the aforesaid context it needs to refer herein that a
child of tender age can be allowed to testify if he or she has
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intellectual capacity to understand questions and give rational
answers thereto. A provision has been made in the Indian
Evidence as under Section 118 of the Indian Evidence Act
wherein it has been provided that the testimony of the tender
witness can be accepted subject to verification of the
intellectual capacity of such witness. For, ready reference the
section 118 is being quoted as under:
118. Who may testify. --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 those
questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind.
Explanation.-- A lunatic is not incompetent to testify, unless he is
prevented by his lunacy from understandingthe questions put to him
and giving rational answers to them.
53. Further, 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
convinced about the quality thereof and reliability can record
conviction, based thereon. Reference in this regard may be
taken from the judgment rendered by the Hon'ble Apex Court
in the case of Virendra alias Buddhu & Anr. Vs. State of
Uttat Pradesh [(2008) 16 582], relevant paragraph of which
is quoted as under:
19. A child of tender age can be allowed to testify if he or
she has intellectual capacity to understand questions
and give rational answers thereto. 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
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close scrutiny and only on being convinced about the
quality thereof and reliability can record conviction,
based thereon.
20. In Dattu Ramrao Sakhare v. State of
Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it
was held as follows : (SCC p. 343, para 5) "5. ... A child
witness if found competent to depose to the facts and
reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath the
evidence of a child witness can be considered
under Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. 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."
21. Subsequently, in Ratansinh Dalsukhbhai Nayak v.
State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7]
wherein one of us (Dr. Arijit Pasayat) was a member the
Bench held that (SCC p. 67, para 7) though "[t]he
decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge
who notices his manners, his apparent possession or lack
of intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation
of an oath."
but "[t]he decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in
the records, it is clear that his conclusion was
erroneous".
The Bench further held as under : (Ratansinh case
[(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7)
"7. ... This precaution is necessary because child
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witnesses are amenable to tutoring and often live in a
world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shaken
and moulded, but it is also an accepted norm that if after
careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is
no obstacle in the way of accepting the evidence of a child
witness."
54. The Hon'ble Apex Court further in the case judgment
rendered in the case of Nivrutti Pandurang Kokate & Ors Vs.
State of Maharashtra [(2008) 12 SCC 565], wherein at
paragraph 10 it has been held as under:
10. "6. ... 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 [40 L Ed 244 : 159 US 523
(1895)] . 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 convinced about the quality thereof and reliability
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can record conviction, based thereon.
(See Suryanarayana v. State of Karnataka [(2001) 9 SCC
129 : 2002 SCC (Cri) 413] .)
55. It is, thus, evident from the consideration made
hereinabove in the context of Section 118 of the Evidence Act
that all persons shall be competent to testify, unless the Court
considers that they are prevented from understanding the
question put to them or from giving rationale answers to the
questions, because of tender years, extreme old age, disease
whether of mind, or any other cause of the same kind. It
further appears that a child of tender age can be allowed to
testify if he has intellectual capacity to understand questions
and given rationale thereto. It further appears that the
evidence of a child witness is not required to be rejected per
so, but the court as a rule of prudence considers such
evidence with close scrutiny and only on being convinced
about the quality thereof and reliability can record conviction.
56. In the instant case the evidence adduced by PW 5, PW
6 and PW 9 on the point that the victim/deceased was last
seen with the accused on 24.12.2022 at 3.00 PM and
thereafter she was found dead nearby the washroom of Tewasi
Oraon remained unshaken and these versions of PW 5, PW 6
and PW 9 have been also corroborated by evidences
propounded by PW 1 and PW 2.
57. P.W. 1 is Mehrani Orain. She deposed that occurrence
took place seven months ago on Saturday. It was 5.30 PM. At
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that time, she was bringing mud to her house from the field.
In the meanwhile, she noticed that Indar Oraon dragged the
victim inside the bathroom and bolted the bathroom. After
some time, he rushed out from bathroom with having child
(victim) in his hand and laid the said child beneath flowering
plant. He also shrouded the said child by sack and eloped
from the spot.
58. P.W. 2 is Sukhmaniya Oraon. She deposed that alleged
occurrence took place 6-7 months ago. At 4.00 PM Indar
Oraon was seen loitering with the victim/deceased. Thereafter
she heard the screaming sound of Mehrani (PW 1) and noticed
that the said victim child was lying dead beneath the plant of
Marigold. Indar Oraon had killed her.
59. Thus, from the aforesaid evidences it is established that
the accused Indar Oraon was last seen with victim/deceased
and there after in vey short interval of time the victim was
found to be dead near the bathroom and deceased body was
shrouded with sack.
60. The Inquest Report (Ext. P-8) is the document to reveal
that the dead body of the deceased/victim was recovered by
the Police after preparing inquest report at 17.45 hours on
24.12.2022 and it was also depicted in the Ext. P-8 that the
victim/deceased was strangulated to death after being raped.
Moreover prosecution witnesses PW 1, PW 2, PW 3, PW 4, PW
5, PW 6, PW 7, PW 10 and PW 11 have testified in their
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evidences that the deceased/victim was found to be dead near
the washroom of Tewasi Oraon.
61. PW 13 is Dr. Anand Kumar who conducted postmortem
examination alongwith Dr. Ajay Kumar Bhagat (PW 14) on the
dead body of victim on 25.12.2022 and as per postmortem
report (Ext. P5) the injuries were antemortem in nature caused
by hard and blunt object and death was due to asphyxia as a
result of physical strangulation. Further, it has been opined
that the deceased had been sexually assaulted by hard and
blunt object(s), with evidence of forceful vaginal and anal
penetration.
62. No explanation has been given in the statement of
accused Indar Oraon u/s 313 Cr.P.C. as to when he parted
the company of victim/deceased. Also, no explanation is there
as to what happened inside the bathroom of Tewasi Oraon
with the victim. Accused remained silent when he was
examined u/s 313 Cr.P.C. and it was a mere denial by the
accused of all the incriminating circumstances which were put
to him u/s 313 Cr.P.C. The silence on the part of the accused,
in such a matter wherein he is expected to come out with an
explanation, leads to an adverse inference against the
accused.
63. The circumstance of deceased being last seen alive in
the company of the deceased is a vital link in the chain of
other circumstances but on its own strength it is insufficient
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to sustain conviction unless the time-gap between the
deceased being last seen alive with the accused and recovery
of dead body of the deceased is so small that possibility of any
other person being the author of the crime is just about
impossible. Last seen theory is considered to be a weak basis
for conviction. However, when the same is coupled with other
factors such as when the deceased was last seen with the
accused, proximity of time to the recovery of the body of
deceased etc.
64. The accused is bound to give an explanation under
section 106 of the Evidence Act, 1872. If he does not do so, or
furnishes what may be termed as wrong explanation or it a
motive is established-pleading securely to the conviction of the
accused closing out the possibility of any other hypothesis,
then a conviction can be based thereon. This opinion of this
court is fortified from the ratio laid down in Satpal Singh Vs
State of Haryana (supra) .
65. As per Ext. P-10, the alleged time span of the
occurrence is from 15.00 Hours to 16.35 Hours on
24.12.2022. As per Ext. P-8 the inquest report regarding
recovery of the dead body of victim was prepared by the Police
(PW 15) at 17.45 Hours on 24.12.2022. The time-gap between
deceased being last seen with accused and recovery of dead
body of deceased is small and no plausible explanation as to
how the victim was strangulated to death after being raped
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was adduced by the accused u/s 313 Cr.P.C. as well as
Section 106 of Evidence Act. Chapter - VII under Part - III of
the Indian Evidence Act, 1872 deals with "Burden of Proof"
Section 101 provides that when a person is bound to prove the
existence of any fact it is said that the burden of proof lies on
that person. However, there may be a case in which it is not
known to the prosecution how the death of a person has
occurred. Wherever it is found that a fact which is relevant is
within the special knowledge of the accused and such fact
cannot be unearthed by the investigating officer by any
amount of enquiry and investigation by operation of section
106 of the Indian Evidence Act the burden would shift upon
the person who has special knowledge of such fact. Section
106 Indian Evidence Act incorporates the principle of reverse
burden. Hence adverse inference can be drawn against the
accused u/s 106 Evidence Act. Fact so established are
incessant and consistent to evince that the act of
strangulation and ravishment of deceased/victim has been
done by the accused Indar Oraon.
66. PW 4 (victim/deceased mother-cum-informant) deposed
that occurrence took place on 24.12.2022. Her daughter was
playing with her friends. She was indulged in some cultivation
work and when she returned home at 4.30 PM, her daughter
was found to be missing. Then she inquired the whereabout of
her daughter from her daughter's friends. They divulged to her
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that Indar Oraon provided them 20 rupees and he also
provided 50 rupees to the deceased victim. They also narrated
to her that they rushed towards shop for biscuit and chocolate
while Indar was loitering with the deceased victim. Frantic
search was made by her then she rushed towards chowk
where she came across Indar Oraon who was eating chowmin
there. When she inquired the matter from Indar then Indar
Oraon started trembling and the chowmin plate fell down on
ground. Sukhmaniya and Hiramani visited there who unfolded
to her that her daughter was lying behind the bathroom of
Dewasi Oraon. Indar Oraon strove hard to elope from there
but Sudhir Oraon and Bablu Oraon apprehended Indar after
chase who confessed before the village that he stifled the
deceased/victim after committing rape upon her in the
bathroom of Dewasi Oraon. Police visited there. There were
scratch mark over the cheek of deceased. There was
strangulation mark over the neck of the deceased. Deceased
was of five years and two months at the time of alleged
occurrence. Blood also exuded from the private part of
deceased victim. No vital contradictions or paradoxical
statement is emanating during her cross-examination which
could cast doubt over her veracity as PW 7, PW 8, PW 10, PW
11 and PW 12 have also countenanced the version of PW 4 in
candid and limpid manner. The version of PW 4 has been
corroborated and invigorated by other prosecution witnesses
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as mentioned above. Moreover stringent documents i.e. Ext. P-
2, Ext. P5, Ext. P-8 also go to vindicate the flawless evidence of
PW 4.
67. PW 7, PW 8, PW 10, PW 11 and PW 12 have asserted in
their evidences that accused Indar Oraon was taking chowmin
at shop situated Jogiya Chowk and in the meanwhile
informant (PW 4) asked accused Indar Oraon regarding
whereabout of her daughter (victim/deceased) then the
chowmin plate slipped down from the hands of the accused
and he strove hard to elope from there but he was
apprehended by PW 7 and PW 8 on the spot. PW 7, PW 8, PW
10, PW 11 and PW 12 are reliable and trustworthy witnesses
because their evidences are devoid of paradoxical and
inconsistent statements. The incessant and flawless evidences
of PW 7, PW 8, PW 10, PW 11 and PW 12 go to evince that the
accused Indar Oraon confessed before them and villagers that
he after committing rape upon the victim/deceased inside the
bathroom of Tewasi Oraon strangulated her to death and also
shrouded her dead body with a sack beneath the Marigold
Flower Plant. The stringent, consistent and corroborative
versions of PW 4, PW 7, PW 8, PW 10, PW 11 and PW 12 go to
depict that the accused Indar Oraon strove hard to elope from
the chowmin shop when he was asked about deceased/victim
and his chowmin plate also slipped down to earth. These
circumstances and the conduct of the accused in front of
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reliable prosecution witnesses are well relevant u/s 6 and 8 of
Indian Evidence Act.
68. From the cogent evidences of prosecution, it is well
established that the accused Indar Oraon, on 24.12.2022, who
was familiar to the deceased/victim as being the dweller of the
same village that of informant, enticed away the
deceased/victim towards the bathroom of Tewasi Oraon while
victim/deceased was playing with other children.
69. It is also well established and proved through the
circumstantial chain that accused Indar Oraon caused other
children to have some refreshment and thereafter enticed the
deceased/victim towards secluded place inside the bathroom
of Tewasi Oraon. It has been also proved by cogent
prosecution evidences that the victim/deceased was last seen
with the accused Indar Oraon on 24.12.2022 during evening-
period and accused was also seen covering the body of
deceased beneath the flower plant situated near the bathroom
of Tewasi Oraon. In this case the alleged place of occurrence
was affirmed by the I.O. which is the secluded place nearby
the marigold flower plant situated near bathroom of Tewasi
Oraon. It is also well established that the being salacious
accused Indar Oraon raped the victim/deceased who was
minor and aged about 5 years and was also well acquainted
with the accused. Ext. P8 is a stringent and rattling document
to unfold that the deceased/victim was manually strangulated
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after being raped and antemortem injuries were also found to
be present on her person.
70. The learned counsel for the appellant has contended
that SFSL report negates the involvement of the accused/
appellant in the alleged occurrence.
71. It needs to refer herein that in the case of Ranjitsing
Brahmajeetsing Sharma vs. State of Maharashtra, 2005
CrLJ 2533 the Hon'ble Apex Court by referring to the U.S.
Supreme Court decision rendered in the case of R. vs.
Watters, (2000) All.E.R. (D) 1469, has ruled that the DNA
evidence may have a great significance where there is
supporting evidence, dependent of course, on the strength of
that evidence. In every case one has to put the DNA evidence
in the context of the rest of the evidence and decide whether
taken as a whole, it does amount to a prima facie case.
72. Further the DNA evidence is like any other expert
opinion u/s 45 of Evidence Act and its probative value may
vary from case to case. If DNA evidence is not properly
documented, collected, packaged and preserved, it will not
meet the legal and scientific requirements for admissibility in
a court of law.
73. Herein, it needs to refer herein that Ext. P-7 is the SFSL
report and as per the said report DNA profiling could not be
extracted from the materials seized by the Police in course of
investigation as per seizure list (Ext. P-11). Further Non-
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generation of DNA profiling can't be a ground to negate the
involvement of the accused in the alleged occurrence as Ext.
P-5 (post-mortem report) has substantiated the fact that the
victim was manually strangulated to death after being raped
and further just before the said gruesome act the victim was
seen with the accused/appellant and this fact has been
substantiated by the cogent evidence led by P.W. 5, 6 and 9,
therefore the contention of the learned counsel for the
appellant is not tenable.
74. Further the dead body of the deceased was found
beneath flowering plant shrouded by sack, which clearly
shows that after committing rape and murder, the dead body
was thrown away in order to conceal the dead body, in an
attempt to cause the disappearance of the evidence.
75. The evidences of witnesses, clearly show that the
deceased girl was last seen with the accused, near the
bathroom of Tewasi Oraon and short proximity of time the
dead body of the victim is found and the entire alleged
occurrence has been fully substantiated by the medical
evidence.
76. Thus, on the basis of discussion made hereinabove it is
considered view of this Court that there is no illegality in the
findings of the Trial Court below, in convicting the present
appellants for the offence under Sections 302 of the Indian
Penal Code and Section 6 of the POCSO Act.
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77. We have heard learned counsel for both the sides in
detail on the point of sentence.
78. Learned counsel for the State, supporting the death
reference, has placed reliance upon the decisions of the
Hon'ble Apex Court in Bachan Singh Vs. State of Punjab,
reported in (1980) 2 SCC 684 and Machi Singh & Ors. Vs.
State of Punjab, reported in (1983) 3 SCC 470, giving the
necessary guidelines for awarding the death sentence, and
submitted that in Machi Singh's case (supra), it has been held
that when the victim of murder is an innocent child who could
not have or has not provided even an excuse, much less a
provocation, for murder, the case comes within the rarest of the
rare category, and it is a fit case for imposing the death
sentence.
79. Learned counsel has further placed reliance upon the
decision of the Hon'ble Apex Court in Bantu Vs. State of U.P.,
reported in (2008) 11 SCC 113, which related to the rape and
murder of a child, aged about five years, wherein the Apex
Court held that the case fell within the category of rarest of
rare cases, affirming the death sentence.
80. Similarly, in Shivaji Vs. State of Maharashtra,
reported in (2008) 15 SCC 269, which related to rape and
murder of a child aged about nine years, it was held that the
plea that in cases of circumstantial evidence, the death
sentence should not be awarded, is without any logic. This
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case was also found to be falling within the category of rarest
of rare cases, and the death sentence to the accused was
affirmed.
81. In Mohd. Mannan Vs. State of Bihar, reported in
(2011) 5 SCC 317, which related to rape and murder of a
child aged about eight years, again it was held to be falling
within the rarest of rare category, and death sentence was
affirmed by the Supreme Court, re-iterating the guidelines for
imposing death sentence, as follows :-
"24. Further, crime being brutal and heinous itself does not
turn the scale towards the death sentence. When the crime
is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and
extreme indignation of the community and when collective
conscience of the community is petrified, one has to lean
towards the death sentence. But this is not the end. If these
factors are present the court has to see as to whether the
accused is a menace to the society and would continue to be
so, threatening its peaceful and harmonious coexistence. The
court has to further enquire and believe that the accused
condemned cannot be reformed or rehabilitated and shall
continue with the criminal acts. In this way a balance sheet
is to be prepared while considering the imposition of penalty
of death of aggravating and mitigating circumstances and a
just balance is to be struck. So long the death sentence is
provided in the statute and when collective conscience of the
community is petrified, it is expected that the holders of
judicial power do not stammer dehors their personal opinion
and inflict death penalty. These are the broad guidelines
which this Court has laid down for imposition of the death
penalty."
82. In Vasanta Sampat Dupare Vs. State of Maharashtra,
reported in (2015) 1 SCC 253, which related to rape and
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murder of a child aged about four years, who, after the rape
was committed upon her, was crushed to death by stone, the
Hon'ble Supreme Court affirmed the death sentence, finding
the case to be one under the category of rarest of rare cases.
In this case, the accused-appellant had also filed the Review
Petition in the Supreme Court, which was again dismissed by
the Judgment, reported in (2017) 6 SCC 631.
83. Placing reliance on these decisions, learned counsel for
the State submitted that the case in hand relates to murder of
the victim girl after commission of rape upon her by the
accused and the case comes within the category of rarest of
rare cases, and as such it is a fit case in which the death
sentence awarded to the accused by the Trial Court below be
confirmed, irrespective of his age, family background or lack of
criminal antecedents, which cannot be considered as
mitigating circumstances.
84. On the other hand, learned counsel for the appellant
has submitted that simply because the case relates to rape
and murder of a child, it does not come under the category of
rarest of rare cases.
85. Learned counsel has placed reliance upon the decisions
of the Supreme Court in Sebastian Vs. State of Kerela,
reported in (2010) 1 SCC 58, Ram Deo Prasad Vs. State of
Bihar, reported in (2013) 7 SCC 725, Tattu Lodhi Vs. State
of M.P., reported in (2016) 9 SCC 675, and in all these cases,
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the child aged between 2 to 7 years were murdered after
committing rape upon them. The Supreme Court, in the facts
of these cases, held that they do not come within the category
of rarest of rare cases, and the death sentence awarded by the
Trial Court below, and confirmed by the High Court, were
commuted to life imprisonment.
86. Learned counsel has also placed reliance upon the
decision of Rameshbhai Chandubhai Rathod (2) Vs. State
of Gujarat, reported in (2011) 2 SCC 764, which also related
to rape and murder of a child by the guard of the building. The
Hon'ble Supreme Court laid down the law that it was
obligatory upon the Trial Court to have given the finding as to
a possible rehabilitation and reformation and the possibility
that the accused could still be a useful member of the society,
in case, he was given a chance to do so, and in absence of
such finding, the death sentence awarded by the Trial Court
and confirmed by the High Court, was commuted to the
sentence for whole life, but subject to any remission or
commutation of sentence by the State Government for good
and social reasons.
87. Similar view was taken by the Apex Court in Amit Vs.
State of U.P, reported in (2012) 4 SCC 107, which also
related to rape and murder of a three years old child. In the
said case also, the ratio of Rameshbhai Chandhubhai
Rathod's case (supra), was applied by the Supreme Court and
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the death sentence was commuted to the sentence of life in
the same terms.
88. Placing reliance on these decisions, learned counsel for
the accused/appellant submitted that the present case also,
does not come within the purview of rarest of rare cases, and
it is a fit case in which the death sentence passed by the Trial
Court below be set aside for the offence under Section 302 of
the Indian Penal Code.
89. It is also submitted that the Trial Court has not given
any finding as to a possible rehabilitation and reformation and
the possibility that the accused could still be a useful member
of the society, in case, he is given a chance to do so, and in
absence of such finding, the death sentence awarded by the
Trial Court cannot be sustained in the eyes of law.
90. We cannot loose sight of some landmark Judgements on
the issue of awarding death sentence, rendered by the Hon'ble
Apex Court. In the case of Rajendra Pralhadrao Wasnik Vs.
State of Maharashtra, reported in AIR 2019 SC 1, which
related to rape and murder of a child aged about three years,
and the appellant was found guilty and convicted for the
offences under Sections 376(2)(f), 377 and 302 of the Indian
Penal Code, in which, the death sentence was awarded by the
Trial Court for the offence under Section 302 of the Indian
Penal Code, which was confirmed by the High Court. Criminal
Appeal filed by the appellant also stood dismissed by the
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Supreme Court, as reported in (2012) 4 SCC 37. The review
petitions were then filed by the appellant, which also stood
dismissed by the Supreme Court. Thereafter, in a completely
different case, the Constitution Bench of the Supreme Court in
Mohd. Arif Vs. Registrar, Supreme Court of India, reported
in (2014) 9 SCC 737, considered two basic issues in the cases
where death sentence was pronounced by the High Court: (1)
whether the hearing of such cases should be by a Bench of at
least three if not five Judges of the Supreme Court and (2)
whether the hearing of review petitions in death sentence
cases should not be by circulation, but should only be in open
Court. Though the Supreme Court was not persuaded to
accept the submission that the appeal should be heard by five
Judges of the Court, but it decided that in every appeal
pending in the Court in which the death sentence had been
awarded by the High Court, only a Bench of three Judges shall
hear the appeal. As regards the oral hearing of the review
petitions in the open Court, it was held that a limited oral
hearing ought to be given, and it was held that this direction
would also apply where the review petition is already
dismissed, but the death sentence was not executed. This gave
an opportunity of consideration of the matter of the accused
Rajendra Pralhadrao Wasnik again by the Supreme Court. As
regards the said accused, it was found by the Supreme Court
that the High Court as well as the Hon'ble Supreme Court had
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not taken into consideration the probability of reformation,
rehabilitation and social integrity of the appellant into the
society. The Court, however, found that the appellant was
accused in other three similar nature of cases. The Hon'ble
Supreme Court in the backdrop of these facts laid down the
law as follows :-
"75. -------------. It must be appreciated that a sentence of death
should be awarded only in the rarest of rare cases, only if an
alternative option is unquestionably foreclosed and only after full
consideration of all factors keeping in mind that a sentence of
death is irrevocable and irretrievable upon execution. It should
always be remembered that while the crime is important, the
criminal is equally important in so far as the sentencing process
is concerned. In other words, courts must "make assurance
double sure"." (Emphasis supplied).
91. Even in the backdrop of the fact that the accused was
found to be accused in three similar nature of cases, and the
case related to the gruesome rape and murder of a girl child
aged about three years, the Hon'ble Apex Court, laying down
the law that in absence of any consideration about the
probability of reformation, rehabilitation and social re-
integration of the appellant into the society, the death
sentence awarded upon the appellant, could not be
maintained, commuted the death sentence of the accused,
which was earlier affirmed up to the Supreme Court, to the life
imprisonment with direction that the accused should not be
released from the custody for the rest of his normal life.
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92. Again in the case of Sachin Kumar Singhraha Vs.
State of M.P., reported in 2019 SCC On Line SC 363, a
school going girl was subjected to rape, and her school bag
and dead body were recovered at the instance of the accused,
pursuant to his disclosure statement, it was not found to be a
case of such category, where the death sentence was
necessarily to be imposed, and the death sentence imposed
upon the accused was commuted to the sentence of life
imprisonment, with no remission for 25 years. In the facts of
the case, the Hon'ble Apex Court was not convinced that the
probability of reform of the accused was low, in absence of any
criminal antecedent and keeping in mind his overall conduct.
93. Taking cues from the decisions of the Hon'ble Apex
Court in Rajendra Pralhadrao Wasnik's case and Sachin
Kumar Singhraha's case (supra), we are of the view that the
principles laid down therein, would squarely cover the case of
the appellant in the present case also. The probability of
reformation, rehabilitation and social re-integration of the
appellant, also cannot be ruled out. But at the same time, we
just cannot lose sight of the manner in which the deceased
was murdered after committing rape upon her.
94. In the facts of this case, we are of the considered view,
that though the extreme penalty of death was not warranted in
the facts of this case, but the accused does not deserve any
major leniency in the matter of remission of the sentence. As
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such, the impugned order of sentence, awarding the capital
punishment of death to the appellant, Indar Oraon, for the
offence under Section 302 of the Indian Penal Code, is hereby,
commuted to the life sentence.
95. In our considered view, this alternative option shall
serve the interest of justice. The sentence passed against the
appellant Indar Oraon for the offence under Section 6 of the
POCSO Act shall also run concurrently. We also hereby, affirm
the sentence of the appellant Indar Oraon for the offence
under Section 6 of the POCSO Act.
96. Accordingly, the impugned Judgment of conviction
dated 09.01.2025 and Order of sentence dated 10.01.2025
passed by learned Additional and Sessions Judge-I-cum-
Special Judge (POCSO Act), Lohardaga, in Special POCSO
Case No.09/2023, stand affirmed, with the modification in the
sentence of the appellant Indar Oraon, as aforesaid.
97. Before parting with this Judgment, we find that the
parents of the deceased are the victims of crime in this case
and they are required to be duly compensated under the
'Victim Compensation Scheme' under Section 357-A of the
Cr.P.C./Section 396 of the BNSS, 2023.
98. We accordingly, direct the Member Secretary,
Jharkhand State Legal Services Authority, Ranchi, to take up
the matter with the concerned District Legal Services
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Authority, so that these victims of crime may be duly
compensated at an early date.
99. Let a copy of this Judgment be sent to the Member
Secretary, Jharkhand State Legal Services Authority, Ranchi,
for the needful.
100. The aforesaid Criminal Appeal is accordingly, dismissed
with the modification of the sentence of the appellant Indar
Oraon for the offence under Section 302 of the Indian Penal
Code.
101. The Death Reference is also answered, accordingly.
102. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Date : 06/01/2026
Birendra / A.F.R.
Uploaded on 06.01.2026.
