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Penal Code, 1860: Sections 376(2)(g), 302 and 201/34.Rape and murder-No eyewitnesses-Circumstantial evidence-Conviction based upon-Punishment of death sentence-Permissibility of-The deceased, a young girl aged 7 to 8 years, was travelling with her parents and younger brother in a private transport service-Accused No. 1, the night chawkidar, advised them to stay in the waiting room of the travel complex for the night-At that time a bus arrived at the said Travel Complex-Accused No. 2 was the 'handyman' of the said bus-While the Manager, Driver and the Conductor slept in the said bus, he did not-He was seen talking with the accused No. 1-The mother of the deceased slept for a while but woke up as her son had cried out-She did not find the deceased child-On opening the septic tank the head of a small child was found-During the course of investigation, the accused No. 1 made a confessional statement before the Magistrate-He gave a vivid description as to how the offence was committed by him and the accused No. 2-The accused persons were convicted and sentenced to death-High Court affirmed the conviction-Validity of-Held: Accused No. I's involvement in the .offence stands proved beyond all reasonable doubts-Apart from his conduct, his confessional statement is a clear pointer to his guilt-Appellant No. 2's involvement is also proved-Their conduct, in particular the conduct of the accused No. 1, is admissible under S. 8 of the Evidence Act-Conviction can be based solely on circumstantial evidence-The accused had rightly been found guilty of committing the offence-If the offence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded-Moreover, the accused No. 1 felt repentant while making his statement under S. 313 Cr.P.C. - Hence, death sentence modified to rigorous imprisonment for life-Criminal Procedure Code, 1973, S. 313-Evidence Act, 1872, S. 30.According to the prosecution, the deceased, a young girl aged 7 to 8 years, was travelling with her parents and younger brother in a private transport service. They reached the Travel Complex and were advised to stay over for the night. Appellant No. 1 was a night chawkidar of the waiting room of the said Travel Complex. He represented that they could stay there for the night and, therefore, should not have any apprehension in regard to their safety. The family went out for dinner and came back to the said waiting room. The father and both his children slept. The mother of the deceased, however, kept on sitting. Appellant No. 1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was nothing for her to worry about. As she had not been sleeping, the c appellant No. 1, allegedly, scolded her to do so. At that time a bus arrived at the said Travel Complex. Appellant No. 2 was the 'handyman' of the said bus. While the Manager, Driver and the Conductor slept in the said bus, he did not. He was seen talking with the appellant No. 1. The mother of the deceased slept for a while but woke up as her son had cried out. She did not find the deceased child. PW-2, the cashier of the transport service, was informed about the missing of the deceased. A complaint was lodged at the police station. A complaint was made that the. flush in the toilet was not working. PW-7 was asked by PW-2 to find out the reason therefor. He later on opened the septic tank and saw the head of a small child. He immediately reported the matter to PW-1 as well as PW-2. In the First Information Report, apart from the appellant No. 1, suspicion was raised about the involvement of the driver, conductor and the 'handyman' (appellant No. 2) of the bus. During the course of investigation, the appellant No. 1 made a confessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973. He gave a vivid description as to how the offence was committed by him and the appellant No. 2. . The appellants were charged with and convicted for commission of offences under Sections 376(2)(g), 302 and 201 read with Section 34 of the Penal Code, 1869 and sentenced to death. The High Court affirmed the conviction and sentence. Hence the appeal. |
