DEBANGSU BASAK, J.:-

1. The judgement of conviction dated July 2, 2020 and the order of sentence dated July 6, 2020 passed by the Learned Additional Sessions Judge-Cum-Special Judge, Kalna, Purba Burdwan in Sessions No. 47 of 2019 arising out of Sessions (Special) Case No. 17 of 2019 has caused the present Death Reference. By the impugned judgement of conviction dated July 2, 2020 and the order of sentence dated July 6, 2020, the Learned Trial Judge has convicted the appellant under Section 448, 376A and 302 of the Indian Penal Code, 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and has sentenced the appellant to death.

2. The police had sought trial of the appellant on the contention that the appellant committed trespass on May 30, 2019 at about 17:00 hours/ 17:30 hours by entering into the house of the de facto complainant, sexually assaulted and caused injuries to the victim, the minor daughter of the de facto complainant. The police had also claimed that the appellant committed rape upon the minor and while committing such offence the appellant inflicted injury on her which caused her death. The police had also contended that the appellant committed penetrative sexual assault on the minor, caused bodily injury to the sexual organ of the minor and also murdered the minor.

3. Charges as against the appellant under Sections 448/376A/302 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 had been framed on September 7, 2019.

4. The appellant had pleaded not guilty and claimed to be tried. At the trial, the prosecution had examined 35 witnesses and relied upon various documentary and material evidences being Exhibit 1 to 56 and Material Exhibit I to X respectively. The appellant had been examined under Section 313 of the Criminal Procedure Code, 1973 where he denied all the allegations made by the prosecution by claiming that he was falsely implicated. He had not furnished any oral or documentary witness at the trial.

5. Mr. Arnab Chatterjee, Advocate, led by Mr. Sekhar Kr. Basu, Senior Advocate as amicus curiae has submitted that, the prosecution did not bring forth any eye witness to the incident at the trial. Referring to the oral testimonies of the prosecution witnesses it has been contended that, none of the prosecution witness had seen the appellant to either enter or exit the house of the victim. Therefore, it has been contended that, the prosecution did not bring on record any evidence to establish the complicity of the appellant in the incident.

6. Referring to the recovery of the so called murder weapon being the iron rod which was marked as Material Exhibit III on behalf of the prosecution, it has been contended on behalf of the appellant that, such iron rod was readily available in the market. The prosecution has not brought forward any distinguishing feature of the iron rod to implicate the appellant therewith. The iron rod being Material Exhibit III had been recovered from a public place and that too after two months from the date of the incident. Reference has been made to the seizure list and it has been contended that, though the recovery was made from a public place there was no independent witness to the seizure list. According to the appellant therefore, the seizure was suspect and that no reliance should be placed thereon.

7. Referring to the Test Identification Parade, it has been contended on behalf of the appellant that, the appellant was shown in the social media prior to the Test Identification Parade. Therefore, the veracity of the Test Identification Parade has been put into doubt. With regard to Test Identification Parade reliance has been placed on 2016 Volume 2 Supreme Court Cases (Criminal) 97 (Noorahammad and Others vs. State of Karnataka).

8. Referring to the fingerprint said to be that of the appellant at the place of occurrence, it has been contended on behalf of the appellant that, presence of fingerprint by itself is not a conclusive evidence. With regard to the contention of the fingerprint , reliance has been placed on 2021 Volume 2 Supreme Court Cases (Criminal) 440 (Hari Om @ Hero vs. State of Uttar Pradesh).

9. It has been contended on behalf of the appellant that, the incident cannot be said to be the rarest of rare case warranting award of death penalty as sought to be done by the impugned judgement of conviction and the order of sentence. In support of the contention that, death penalty should not be awarded, reliance has been placed on 2022 SCC Online SC 677 (Manoj and Other vs. State of Madhya Pradesh), 2016 Volume 15 Supreme Court Cases 448 (Bimla Devi vs. Rajesh Singh and Another), 2015 Volume 16 Supreme Court Cases 492 (Kalu Khan vs. State or Rajasthan) and 2019 Volume 9 Supreme Court Cases 689 (Ravishankar Alias Baba Vishwakarma vs. State of Madhya Pradesh). Therefore, the Trial Court had erred in relying on the evidence led by the prosecution in passing the impugned judgement of conviction and the order of sentence.

10. Learned Additional Public Prosecutor has submitted that, there is one eye witness being Prosecution Witness No. 13 who saw the appellant to enter into the house of the victim. There is another eye witness being Prosecution Witness No. 6 who had seen the appellant to exit the house of the victim at the material point of time. Therefore, according to the learned Additional Public Prosecutor, the prosecution had placed convincing evidence on record at the trial to establish the guilt of the appellant. He has contended that, the fingerprint of the appellant was found in the place of occurrence. He has submitted that, the appellant did not produce any material at the trial to explain the presence of his fingerprint at the place of occurrence. The prosecution had produced conclusive evidence at the trial to establish that, the victim had been raped prior to being assaulted resulting in her death. Therefore, according to him, the Learned Trial Judge had correctly awarded the judgement of conviction and the order of sentence.

11. Learned Advocate appearing for the de facto complainant has submitted a chart showing the aggravating and the mitigating circumstances so far as the appellant is concerned. He has contended that, there are many aggravating circumstances as against the appellant with no mitigating circumstances in favour of the appellant.

12. Learned Advocate appearing for the de facto complainant has contended that, the appellant murdered a 15 years old girl at her house when she was alone, in a brutal manner. In order to establish the brutality of the murder learned Advocate appearing for the de facto complainant has drawn the attention of the Court to the Post Mortem Report of the victim, the deposition of the doctors conducting the post mortem on the victim and to other materials on record. He has contended that, the minor was brutally sexually assaulted and thereafter murdered in a gruesome manner. Therefore, according to him, the death penalty awarded as against the appellant should be upheld.

13. The appellant had stood trial for criminal trespass, rape and murder, and aggravated sexual assault on a minor. Charges as against the appellant had been framed on September 7, 2019. As has been noted above, the prosecution examined 35 witnesses at the trial.

14. The de facto complainant, who is the mother of the victim, had deposed as Prosecution Witness No. 1. In her testimony, she had stated that, she used to reside at the place of occurrence along with the victim. She had been working as a maid servant to earn her livelihood. She had to go to her job at 8/8:30 A.M and was able to return therefrom at about 7/7:30 P.M. She had stated that, on May 30, 2019 she had gone to her job to return to her house at about 7 P.M when she saw no electric light in her room. She had switched on the light when she saw her younger daughter to be lying on her bed with blood injury in her body. She had also seen that the neck of the victim was tied by “gamcha” (towel) and her lower portion was in naked condition. She had seen the undergarment of the victim to be lying on the floor of the room under the bed. She had raised a hue and cry and came out of the room when PW-13, PW-4, PW-3 and others had come to her house. They had also seen the victim and thereafter they had called an ambulance which took the victim to Kalna Sub divisional Hospital for treatment. She had said that, before leaving her house she locked the door and went to the hospital with her daughter and got her admitted in the hospital.

15. In her testimony, PW-1 had stated that on May 31, 2019 at about 8:30/9 A.M she went to PW-2 and narrated the incident to him whereupon PW-2 wrote the complaint in accordance with her instructions. She had signed the complaint and submitted the same to the police. She had stated that, after the complaint being lodged the police came to her house. She had opened the door in presence of the police and entered the room. The police had seized various materials. She had stated that on June 12, 2019, her daughter had died at Burdwan Medical College and Hospital at about 9:55 P.M. A post mortem had been conducted. The police had visited the place of occurrence on June 20, 2019. On June 29, 2019 the police had come to her house and seized the birth certificate and other documents of her daughter. She had stated that, at the time of the incident her daughter was 15 years and some months old. The defence could not elicit anything favourable to him in crossexamination.

16. PW-2 had stated that he had written the complaint at the instructions of the PW-1, the de facto complainant. PW-3 had stated that on May 30, 2019 at about 7/7:30 PM he along with his friends including some of the prosecution witnesses were having tea in a tea stall near the Block Land and Land Reforms Office in Kalna when he heard a hue and cry from the house of PW-1. He has stated that he along with his friends including some of the prosecution witness went to the house of PW-1 where he saw the victim lying on the bed of the room of PW-1 in a naked and injured condition. He has stated that the neck of the victim was tied with a “gamcha” (towel).

17. PW-4 had stated that he was having tea along with PW-3 and other prosecution witnesses at the same tea stall near the Block Land and Land Reforms Office. He had corroborated the statement made by PW-3. He had witnessed seizure made on May 31, 2019. PW-5 had stated that on May 30, 2019 he was with PW - 3 and 4 at tea stall when he heard the cries of PW-1. He had corroborated the statements of PW3 and 4. He had witnessed the seizure on May 31, 2019. He had also been present at the place of occurrence on June 8, 2019 to witness the taking of the fingerprint on the glass of the show case.

18. PW-6 had stated that on May 30, 2019 at about 5/5:30 P.M while he was going to a play ground near the Block Land and Land Reforms Officer in his bicycle through the road which is situated beside the house of PW-1 he found a motor cycle which was parked badly on the road near electric pole. He has stated that, when he passed the house of the PW-1 he found a person who was well dressed, to suddenly come in front of his cycle with a helmet in red colour and a bag in his hand. He had tried to pass such person but could not proceed due to the motor cycle. Such person fled away in his motor cycle. He had identified the appellant as the person who he found in front of the house of the PW-1. He has stated that on July 26, 2019, he had identified the appellant in the Test Identification Parade. He had also recorded a statement under Section 164 of the Criminal Procedure Code which tendered in evidence and marked as Exhibit-3 series. In cross-examination, he has stated that, after the appellant had been arrested he was shown in the video footage on the social media.

19. A relative of the PW-1 had deposed as PW-7. PW-8 had deposed that on May 30, 2019 he along with some of the prosecution witnesses were having tea in the tea stall situated beside the Block Land and Land Reforms Office. He had heard the cry of PW-1. He had corroborated the statement of the other prosecution witnesses of the incidence happening on May 30, 2019. He had been present while the inquest was being done.

20. The ambulance driver who took the victim to the hospital on May 30, 2019 had deposed as PW-9. The Subinspector of Police who conducted the inquest on the victim had deposed as PW-10. The Constable who had brought the dead body of the victim to the Burdwan Medical College and Hospital for the post-mortem had deposed as PW-11. The Assistant Sup-inspector of Police who prepared the seizure list with regard to the viscera had deposed as PW-12.

21. PW-13 had stated that on May 30, 2019 he was in his house at about 7/7:30 P.M when he heard the cry from the house of the PW-1 and went to her house along with some of the other prosecution witnesses. He had stated that on May 13, 2019 at about 2/3 P.M he was cleaning the bush in front of the house when he found an unknown person was roaming with his motor cycle and his head was covered with helmet. Thereafter, at about 5/5:30 P.M at the same day he had found the same unknown person to go towards the house of PW-1 taking a helmet and a bag after parking his motor cycle near the electric pole. He had described the colour of the motor cycle and the helmet to be red. He had identified the appellant as the unknown person who went to the house of PW-1. PW13 had corroborated the statement of PW-6 with regard to the appellant being present as to the appellant entering into the house of the PW-1 on May 30, 2019 at about 5/5:30 P.M.

22. PW-4 who is a Home Guard had witnessed the seizure list prepared in course of the investigation. An Assistant Subinspector of Police had deposed as PW-15 and identified the seizure list prepared in course of the investigation. Another Assistant Sub-inspector of Police preparing the seizure list had deposed as PW-16. The Police Constable had re-seized the motor cycle and voter identity card of the appellant had deposed as PW-17. PW-18 has deposed as a police personnel preparing the seizure list. The police personnel who had taken the appellant for his sexual capability test has deposed as PW19.

23. The Assistant Sub-inspector of Police who was present at the locale where the appellant picked up the iron rod being Material Exhibit- III lying in bush situated on the edge of the pond, adjacent to the house of PW-1 in the presence of the team and handed over the same to the Investigating Officer had deposed as PW-20. He had stated that, the Investigating Officer seized the iron rod in his presence and prepared the seizure list which he signed. In cross-examination, he had stated that, at the time of the recovery of Material Exhibit-3 no other person was present. He had also stated that such type of iron rod is available in the open market.

24. PW-21 and 22 had deposed about the seizure of the red helmet. PW-23 had deposed as to the date of birth of the victim, and the admission register of the victim at the school.

25. PW-24 had treated the victim initially on May 30, 2019. He had stated that, he found injuries like cut injury on the left forehead about two injuries, palpable fracture on the frontal bone, and discharge of fluid from vagina. He had stated that the cause of injuries sustained by the victim was due to effects of assault with any hard substance like iron rod and also due to rape. In cross-examination, he had stated that, the patient party did not tell him how the assailant assaulted the victim. He had also stated that, the type of injuries sustained by the victim on her forehead may be caused if somebody falls on any hard substance.

26. The doctor who had conducted the sexual capability test on the appellant had deposed as PW-25. He had stated that, the appellant was capable of having sexual intercourse.

27. The doctor who had performed the post mortem on the victim had deposed as PW-26. He had stated that, the victim had died on June 12, 2019 and that the post mortem was conducted on June 13, 2019. He had identified the injuries found on the victim. He had identified the injuries he had found on dissection. He had stated that in his opinion the death of the victim was due to the effect of injuries ante mortem and homicidal in nature. He had also stated that, he found sign of forceful penetration on the vagina. According to him sexual violence could not be ruled out. According to him it was a case of aggravated sexual assault and that, the injuries sustained by the victim on her head may be caused due to impact with any hard, blunt substance like metal rod. He had stated that the ligature mark of injuries sustained by the victim on her neck may be caused due to strangulation.

28. The fingerprint expert had deposed as PW-27. He had stated that, on June 8, 2019, he visited the place of occurrence along with the photographer and police personnel. In course of such evidence he had examined preferable places and articles said to have been handled by the culprit during the commission of the crime, examined the places and the articles and developed three chance fingerprints. He had tendered his report on the fingerprint which was marked as Exhibit-30.

29. The photographer accompanying the fingerprint expert on June 8, 2019 to the place of occurrence had deposed as PW-28. He had stated above the conduct of the fingerprint expert and about his taking the photographs.

30. The Director, Fingerprint Bureau, CID, West Bengal had deposed as PW-29. He had stated that, he examined the specimen fingerprint of the appellant and prepared a report to that effect. He had stated that, the chance fingerprints marked as “A” found at the place of occurrence is identical with the specimen left thumb impression of the appellant. He had also stated that chance fingerprints marked as “C” which was obtained at the place of occurrence is also identical with right ring of the appellant. No question had been put to PW-29 with regard to his opinion on the fingerprints in crossexamination.

31. One of the doctors of the board of doctors formed for the purpose of treating the victim had deposed as PW-30. He had stated that, the patient sustained injuries on her out of the use of blunt hard substance like iron rod. The injuries sustained by the victim on her private parts were due to the effects of aggravated sexual assault. Other injuries that had been sustained by the victim all over her body were due to the effects of extreme physical violence. The injuries that had been suffered by the victim were sufficient for causing the death of the victim. Her death had been homicidal in nature.

32. The Judicial Magistrate before whom, the fingerprint of the appellant was taken had deposed as PW-31. Such Judicial Magistrate had also conducted the Test Identification Parade.

33. The police personnel who had received the complaint lodged by PW-1 and entered such complaint treating the same as the First Information Report had deposed as PW-32. The first Investigating Officer had deposed as PW-33. He had described how he had prepared the rough sketch map of the place of occurrence, recorded statements under Section 161 of the Criminal Procedure Code of the de facto complainant as well as witnesses available. He had narrated about the preparation of the seizure list. He had stated about the seizure of the viscera items. He had been cross-examined at length about the appellant.

34. A doctor who had treated the victim on May 30, 2019 deposed as PW-34. He had stated that the victim was unconscious. He had found fresh vaginal blood, lacerated wound over the posterior part of the vagina. He had found the hymen to be raptured with edema and fresh blood tickling at 5 O’ clock and 7 O’ clock position. He had stated that the injuries noted on the private part of the victim may be caused due to forceful penetration and that the injury was aggravated in nature.

35. The second Investigating Officer had deposed as PW35. He had spoken about the seizure of the birth certificate of the victim, and the school certificate of the victim. He had stated about the prayer for adducing the provisions of Section 302/376A of the Indian Penal Code and Section 6 of the Act of 2012 with the original section before the Learned Additional Chief Judicial Magistrate, Kalna and that such prayer was allowed. He had spoken about the post mortem report and other evidence. He had been cross-examined at length on behalf of the appellant.

36. The appellant had been examined under Section 313 of the Criminal Procedure Code. He had declined to adduce any defence witness in the case. He had claimed that he did not know anything about the incident. He had claimed that the police had falsely implicated him in the case and that he was innocent.

37. In Kalu Khan (supra) the evidence the evidence led at the trial had been circumstantial. The appellant therein had been last seen with the deceased before she went missing. It had been observed there that, the evidence led at the trial although proved the guilt of the accused, it did not sufficiently convince the judicial mind to entirely foreclose the option of a lower sentence than death penalty. In such circumstances, the death sentence had been commuted to imprisonment for life.

38. The Supreme Court in Bimla Devi (supra) has observed that, the life imprisonment is the rule and death penalty is an exception. It has also observed that, death penalty can be awarded in the rarest of rare case and that each case of murder is gruesome and barbaric. In the facts of that case, the judgement of conviction of life imprisonment was not interfered with.

39. In Ravishankar Alias Baba Vishwakarma (supra) the Supreme Court has noticed that there were protagonist for abolishment of death penalty as well as a parallel line of thought strongly advocating death be imposed to maintain proportionality of sentencee and to further the theories of deterrent effect and societal retribution. The various authorities on the subject has been noted. On consideration of the evidence before the Court, it has been held that, there were certain residual doubts with regard to the conviction. In such circumstances, the death sentence has been commuted to imprisonment for life with a direction that no remission to be granted during the rest of the life of the convict.

40. Manoj and Others (supra) has considered the various authorities on the death penalty. It has observed that, the Court while sentencing an accused under Section 302 of the Indian Penal Code, 1860 should take into consideration the mitigating and the aggravating circumstances. The Court should also take into consideration additional materials in the nature of a report as to whether the accused could be rehabilitated, in a given facts and circumstances of the case. In the facts and circumstances of the case involved the death sentence had been found to be unwarranted and such judgement of conviction was commuted to life imprisonment for a minimum term of 25 years.

41. In a trial involving the provisions of Section 302 of the Indian Penal Code, 1860, when murder is proved, the Court has to take into consideration whether the murder was of rarest of the rare kind or not. In the event, the Court does not find that the facts and circumstances of the case permits the Court to arrive at a finding that the murder was of a rarest of the rare crime, the Court need not award the death penalty. The Court then need not embark upon finding the aggravating and the mitigating circumstances and any other materials relevant for the award of the death penalty.

42. At the trial, the prosecution had established that, the mother of the victim, being PW-1, discovered the victim at her house on May 30, 2019 at about 7 P.M to be lying on the bed with bleeding injuries on her face and other parts of her person. She had seen the neck of her daughter, the victim, to be tied with a “gamcha” (towel) and her lower portion to be in a naked position. On seeing such condition of her daughter, the victim, PW-1 had raised a hue and cry whereupon PW-13, PW-3 and PW-4 amongst others had responded. Such prosecution witnesses along with others had called an ambulance and taken the victim to the Kalna SD Hospital for treatment. The victim had been shifted to the Burdwan Medical College and Hospital subsequently. PW- 3, 4 and 13 had corroborated the statements of PW-1 on such score. On May 31, 2019, the mother of the victim, being PW-1 had gone to PW-2 and narrated the incident to him whereupon the police complaint was lodged being Exhibit-2.

43. The prosecution had established that, the victim died on June 12, 2019 at the Burdwan Medical College and Hospital at about 9:55 P.M. Post mortem of the victim had been held. The prosecution had examined the doctors treating the victim at Kalna Hospital as also at the Burdwan Medical College. PW-24 had treated the victim on May 30, 2019 at the Kalna Hospital. He had deposed that the victim had few injuries like cut injury on her left forehead, palpable fracture on the frontal bone. He had found the vagina of the victim to be discharging fluids. He had stated that stiches were done on the forehead of the victim. According to him, the causes of injuries sustained by the victim were due to the effects of assault with hard substance like iron rod and due to rape.

44. The professor and head of the Urology Department, Burdwan Medical College and Hospital had deposed as PW-30. He had stated that he formed a board consisting six members headed by him for the purpose of examination of the victim. He had described the injuries found on the victim. He had stated that the condition of the victim was in comatose which was more than vegetative state. In his opinion, the victim had sustained injuries on her head out of the use of blunt hard substance like iron rod, bamboo etc. and that the injuries sustained by the victim in her private parts were due to effects of aggravated sexual assault. In his opinion, other injuries sustained by the victim all over her body were due to the effects of extreme physical violence. The injuries were sufficient to cause death of the victim. The death of the victim had been homicidal in nature.

45. PW-26 is a doctor who had treated the victim at the Burdwan Medical College and Hospital. He had stated that, he was member of the board of doctors formed for the purpose of treating the victim. He had performed the post mortem examination of the victim also. He had identified the injuries he found on the victim. He had stated that, on examination of the victim, he found signs of forceful penetration of vagina. He had stated that, sexual violence could not be ruled out and that in his opinion, it could be done due to aggravated sexual assault. He had opined that, the injuries sustained by the victim on her head could be caused due to impact with hard blunt substance like metal rod, wooden stick etc. Ligature mark of injury sustained by the victim on her neck may have been caused by virtue of strangulation. He had tendered the post mortem which was marked as Exhibit-26.

46. The fingerprint expert had deposed as PW-27. He has stated that, as per the order of the director he had visited the place of occurrence along with photographer being PW-28. He had examined the probable place of occurrence and articles said to have been handled by the accused during the commission of crimes, examined and developed three chance fingerprints which he had marked as A, B, C. PW-28 as the photographer present with PW-27 had corroborate the testimony of PW-27 with regard to fingerprints and the taking of photographers.

47. PW-28 had examined the specimen fingerprints of the appellant and the chance fingerprints marked as “A” was identical with the specimen left thumb impression of the appellant. According to him, chance fingerprints marked as “C” was identical with the right ring of the appellant. He had tendered his report which was marked as Exhibit-33. He had hardly been cross-examined by the defence.

48. The prosecution having established the death of the victim to be homicidal in nature, and the victim to have suffered aggravated sexual assault it can be safely said that, the victim was raped and murdered.

49. PW-13 had seen the appellant to enter into the house of the victim on May 30, 2019 at about 5/5:30 P.M. Attention of the Court has been drawn to the deposition of PW-13 in details. It has been contended on behalf of the appellant that, PW-13 stated that, he saw the appellant to go towards the house of the victim which is not the same as entering the house of the victim.

50. In his deposition PW-13 had stated that, he saw the appellant to go towards the house of the victim while two lines, thereafter, he stated that, he can identify the appellant who went to the house of the victim. He had identified the appellant as the person entering into the house of the victim. PW-6 had stated that he saw the appellant to come out from the house of the victim on May 30, 2019.

51. The prosecution had therefore, brought on record at the trial that, there were witnesses who saw the appellant to enter the house of the victim at the material point of time and to exit such house. Even if one has to overlook the testimony of PW-13 to the effect of the appellant entering into the house of the victim, the testimony of PW-6 that he saw the appellant to exit the house of the victim at the material point of time cannot be discounted.

52. The prosecution had also produced fingerprint evidence at the trial. The evidence relating to the fingerprints of the appellant found at the place of occurrence had corroborated the presence of the appellant at the place of occurrence. Fingerprints had been obtained from the place of occurrence with the help of a fingerprint expert in presence of independent witness and a photographer. The fingerprint of the appellant had been taken in presence of a Judicial Magistrate being PW-31, for the purpose of comparing the same with those obtained at the place of occurrence. The Director of Fingerprint Bureau, CID, West Bengal had examined the fingerprints obtained at the place of occurrence with that of the appellant and submitted his opinion with regard thereto stating that, the fingerprints of the appellant matched with that of the fingerprints obtained from the place of occurrence.

53. Hari Om (supra) has taken note of two authorities of the Supreme Court on the issue of fingerprints. In one of such authorities, it has been observed that, evidence of fingerprints expert is not substantive evidence and that such evidence can only be used to corroborate some amount of substantive evidence which are otherwise on record. In the other authority, conviction was sought to be levied on the basis of fingerprints of the accused obtained at the place of occurrence when it was admitted that the accused used to visit the place of occurrence frequently.

54. In the facts and circumstances of the present case, nothing has been placed on record to suggest that the appellant used to frequently visit the house of the victim. The presence of the fingerprints of the appellant at the place of occurrence, sans any evidence to suggest let alone establish that there was a possibility of the fingerprints of the appellant being present at the place of occurrence, established the guilt of the appellant in the rape and murder of the victim, beyond reasonable doubt. More so, the fingerprints of the appellant found at the place of occurrence corroborated the oral testimonies of PW-6 and 13 who had seen the appellant to have entered and exited the place of occurrence at the relevant point of time.

55. The appellant had been shown in the social media subsequent to his arrest and prior to the Test Identification Parade. In such circumstances, by relying upon Noorahammad (supra) it has been contended that, since the appellant was identified prior to the Test Identification Parade his identification at the Test Identification Parade is of no consequence.

56. Noorahammad (supra) has noted various authorities on the importance of Test Identification Parade. It has observed that, failure to hold Test Identification Parade does impact the evidence of identification in Court as inadmissible. However, identification of an accused for the first time in Court is of a weak character unless it is corroborated by other evidence. It has also noted that there are exceptions to the rule. A Court can convict on the basis of a witness who is reliable.

57. In the facts of the present case, PW- 35, the Investigating Officer had deposed that a Test Identification Parade was held on July 25, 2019 pursuant to an order passed by the jurisdictional Court where the appellant was identified. PW-6 had identified the appellant in the Test Identification Parade. PW-6 and 13 had seen the appellant to enter and exit the house of the victim at the material point of time. They had described the distinguishing features of the appellant at that material point of time. The descriptions of the appellant given by both PW-6 and 13 are of the same nature. They had corroborated each other. Their oral testimonies stand corroborated by the fingerprint evidence that had been produced at the trial. The oral testimonies of the PW-6 and 13 are sufficiently reliable so as to base a conviction thereon.

58. It has been contended on behalf of the appellant that, the iron rod claimed to have been recovered and claimed to be the murder weapon, is one which is readily available in the market without any distinguishing feature so as to pin the same with the appellant. Moreover, the recovery was made after two months from the date of the incident.

59. The incident had happened on May 30, 2019. The victim had died on June 12, 2019. The appellant had been shown as arrested on July 17, 2019. The seizure of the iron rod being Material Exhibit- III had been made on July 31, 2019 pursuant to the leading statement made by the appellant being Exhibit-50. The availability of the iron rod being Material Exhibit- III in the market does not make it a less of a murder weapon. The appellant cannot wriggle of it after having identified it and allowed it to be recovered on his leading statement. The prosecution had led overwhelming evidence at the trial including evidence of the doctors treating the victim and the doctor conducting the post mortem on the victim stating that, the injuries suffered by the victim were by a blunt substance such as an iron rod. Material Exhibit- III had been recovered on the leading statement made by the appellant being Exhibit-50.

60. Therefore, the prosecution had produced reliable evidence at the trial to establish that the appellant was in the house of the victim at the material point of time. Since the appellant had suffered the death sentence by an order dated August 16, 2022, State was required to submit a report as to the conduct of the appellant post his arrest and any other relevant materials relating to the issue of the death penalty. State had submitted such report which was taken on record on November 3, 2022. The report submitted by the State shows that there are 13 criminal cases as against the appellant pending at various stages. Out of the 13 criminal cases, 7 cases related to murder. Out of the 7 cases of murder, 1 involved rape and murder.

61. The victim had been raped and murdered. The manner in which the crime had been committed although gruesome cannot be said to come within the purview of rarest of rare cases. We could not convince ourselves that award of death penalty to the appellant in the facts and circumstances of the present case was justified although, rape and murder had been established conclusively. However, we have to take into consideration the age of the victim and the manner in which she had been raped and murdered by the appellant. The birth certificated of the victim marked as Material Exhibit – I has established that the victim was born on October 1, 2003. The incident had happened on May 30, 2019 which means that a minor had suffered aggravated sexual assault by the appellant and was murdered by the appellant.

62. In such circumstances, we commute the death sentence awarded as against the appellant to life imprisonment without the possibility of remission for a period of 25 years from the date of his arrest in this police case, taking into account the age of the appellant, the age of the victim and the nature of the crime.

63. A copy of this judgement along with the trial Court records be remitted to the appropriate Court forthwith. In view of the commutation of the death penalty, any warrant issued by the appropriate Court with regard thereto in respect of the appellant stands modified in terms of this judgement and order. Department will inform the Correctional Home where the appellant is lodged as to this judgement and order. The Correctional Home will record the fact of commutation of death penalty to the sentence awarded by this judgement and order in respect of the appellant, in their records.

64. DR 7 of 2020 is disposed of accordingly.

65. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

66. I agree.