Michael Zothankhuma, J.

1. Heard Mrs. Dinari T. Azyu, learned Amicus Curiae for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram.

2. The present appeal is filed against the Judgment and Order dated 26.04.2013 passed by the learned Session Judge, Aizawl in Criminal Trial No. 2680/2010 arising out of Kulikawn P.S. Case No. 171/2010 under Sections 341/376(a)(f)/302 IPC.

3. By the impugned Judgment & Order dated 26.04.2013, the appellant has been convicted and sentenced to undergo RI for a period of 10 years under Section 376 (2) (f) IPC and also sentenced to undergo life imprisonment under Section 302 IPC. The sentences are to run consecutively.

4. The prosecution case in brief is as follows:

On 18.10.2010, a written FIR was received from Lalruatkimi, W/o C. Zoramthanga of South Sabual P/A Thakthing Veng, Aizawl stating that on the morning of 18.10.2010, her daughter Emanuel Zomuanpuii (5 years) was raped and murdered by an unknown person and her dead body was found at Thakthing Veng, in the two wheeler garage of Pu Zonunsanga. Hence, Kulikawn P.S. Case No. 171/2010 dated 18.10.2010 u/s 341/376(2)(f)/302 IPC was registered and duly investigated into. During the course of investigation, the PO was visited, several physical evidences were collected and seized from the PO. Inquest was conducted over the dead body of the victim, Emanuel Zomuanpuii (5 yrs), d/o C. Zoramthanga. The dead body was then forwarded to MO, Civil Hospital, Aizawl for Post Mortem Examination, after which it was handed over to her relatives for burial. Several Witnesses were examined and their statements were recorded. The physical evidences which were seized from the PO were also sent to FSL Mualpui for examination. The accused Lalrammawia (26) S/o Lalnundanga of Salem Veng was arrested on 20.10.2010 and several clothing belonging to him, which were suspected to have been worn by him at the time of commission of crime, and his fingerprints, pubic hair and blood samples were taken and sent to FSL, Mualpui for examination. FSL report on the exhibits sent revealed that the fingerprint of the accused and the chance print taken from the PO were identical. The impression of the shoe of the accused/appellant tallied with the shoe print taken from the PO and hair taken from the pubic region of the victim could have come from the same source as the pubic hair of the accused. During the course of investigation, the appellant was examined and he admitted his guilt to the rape and murder of Emanuel Zomuanpuii (5 yrs) of Thakthing Veng, on the morning of 18.10.2010 in one basement garage at Thakthing Veng. The judicial confessional statement of the accused was also recorded by a Judicial Magistrate. Hence, finding a prima facie case u/s 341/376(2) (f)/302 IPC against the accused Lalrammawia, the I.O submitted charge sheet No. 44/20-11 dated 27.04.2011 in the Court.

5. The learned Amicus Curiae submits that she has got no comments to make with regard to the learned Trial Courts finding of rape and would instead like to limit her challenge to the finding of murder, made against the appellant under Section 302 IPC. The learned Amicus Curiae submits that the learned Trial Court should have come to a finding of culpable homicide not amounting to murder under Section 302 IPC, in view of the law laid down by the Apex Court in the case of Balu and Others v. State of Maharashtra reported in (2015) 3 SCC 409 , which is applicable to the case in hand. The learned Amicus Curiae submits that the finding of murder by the learned Trial Court has been done on the basis of the confessional statement made by the appellant, which had not been signed by the appellant. The learned Amicus Curiae submits that the Magistrate who had recorded the confessional statement has in the evidence stated that the appellant did not sign the confessional statement. The learned Amicus Curiae thus submits that the learned Trial Court could not have acted upon the basis of the confessional statement as it was not signed by the appellants concerned.

6. The learned Amicus Curiae had submitted that by applying the relevant factors laid down by the Apex Court in Pulicherla Nagaraju v. State of A.P reported in (2006) 11 SCC 444 and which is reflected in the case of Balu v. State of Maharashtra (Supra), the death of the child was not due to any intention or motive on the part of the appellant but it was an unintentional death. The learned Amicus Curiae submits that there was no motive or intention to eliminate the child by the appellant and as the death was accidental, the appellant should have been convicted under Part-I of Section 304 IPC and not under Section 304 IPC.

7. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor submits that at the time of framing of charge, the appellant had admitted to the charge of murder under Section 302 IPC. The appellant in his examination under Section 313 Cr.P.C had also not denied that he had made a confession under Section 164 Cr.P.C before the Judicial Magistrate, First Class. The Addl. Public Prosecutor thus submits that in view of the above, there was no infirmity with the learned Trial Court having come to a finding of murder against the appellant. She also submits that the very fact that the appellant had used a brick to hit the head of the 5 year old girl, after raping her, goes to show that there was intention on the part of the appellant to commit murder.

8. We have heard the learned counsels for the parties.

9. In view of the fact that the learned Amicus Curiae has limited her challenge to the impugned Judgment & Order dated 26.04.2013 passed in Crl. Tr No. 2680/2010, only to the extent that the death of the 5 year old girl was not murder but culpable homicide not amounting murder, we confine ourselves to the limited issue raised by the learned Amicus Curiae.

10. The facts of the case which has been proved and not denied by the appellant is that the appellant raped and murdered the 5 year old girl on the morning of 18.10.2010 in the basement garage at Thakthing veng.

In this respect, the confessional statement of the appellant is reproduced below:

"My particulars are as given above, I am presently residing at Salem Veng with my younger brother, I got married in 2009 but have since divorced, I have 1 (one) son. With regard to livelihood I perform any task that is available.

On dated 17.10.2010, I was at home, around evening I consumed liquor along with 2 strips of peptic a medication, at night I ate dinner at my fathers home in Salem locality and passed the time roaming around. The next day i.e. 18.10.2010 Monday morning as soon as I got up I consumed half packet of liquor as well as 15 capsules of peptic. I then proceeded towards Thakthing locality, then I consumed 1 (one) more packet of liquor, by this time I was quite drunk and I proceeded towards our locality. I proceeded to go upwards towards thakthing locality, there were some children on the road, I asked them where they were going, they replied they were going to the shop, I said let us buy some things from the shop and they followed me. We proceeded on the road behind the church, I thought they were all following me, the young child said my siblings are not following us so we proceeded back, I do not remember this part clearly. Those who saw us said that I carried her but I do not recall clearly, I faintly recall forcibly pulling her along but my recollection is quite hazy. As is recall I hugged her and I touched her private parts, then I attempted to have intercourse with her, she said it was paining and cried, she also screamed, I believe I successfully penetrated her, then because she was crying out loudly I physically assaulted her, but I do not recall clearly. It has been said that I even bit her on the cheek, but I do not recall biting her, I think after choking her I smashed her on the ground, there were some broken bricks lying on the ground, I pounded her head on the bricks then I lifted a brick and used it to smash her head around three times, then when I saw her blood I came to my senses, I was really afraid and I immediately ran towards home. Even when I was proceeding home I was still a little bit drunk and this combined with my fear I was not feeling really well. As I was proceeding down I saw my son who was with his grandmother, as I recall I picked him up, then I bought him some things from the shop, I do not remember what items I bought, I did not dare to even go home and I went to the home of my friend Mapuia. There I removed the blood which had splattered on my clothes, I immersed my cloth on a bucket of water in his home and I wore his clothes, then I invited him to drink liquor with me at Thakthing locality, he said let us go to Rangvamual instead, so we went to Rangvamual and we drank liquor and came back. This evening too I did not have dinner instead I stayed the night at the house of my friend Ricky at Salem locality. The following day I went to the house of my younger sibling and on this day the 19.10.2010 I stayed at home the whole day, in the evening I again went to Rangvamual along with one of our brother in law and one other friend to buy 2 litres of liquor, we consumed some on the spot and we proceeded home carrying three packets of liquor. I again stayed for the night with my younger sibling, the next day at around 8:30 9:00 a.m before I got up the police arrested me, I did not immediately confess, they interrogated me about my whereabouts but I did not know exactly why they had arrested me. Since they did not mention the murder, I also did not dare to confess, but after they continued to trace my activities and also since they began to beat me I confessed to the murder.

Q. Have you been arrested on earlier occasions How many times, and on what charges

Ans:- With the present case it must be around 10 times, due to loitering, 506 IPC, 380 IPC and also in connection with liquor prohibition.

Q. Was your action pre-medicated

Ans:- No, it was not pre-meditated, I believe I lost my senses due to medicines that I had consumed, I love children and I never had any such physical desire not intention to harm them, it happened on sudden impulse.

Q. Do you have anything more to say

Ans:- With regard to my actions I have no feeling except guilt, it is heinous and cold blooded, I never had such intentions in my whole life, I am also surprised and dont know how it came about. I am regretful and ashamed and I believe I should pay for my deeds."

11. With regard to the learned Amicus Curiae"s submission that the appellant did not sign the confessional statement, we have looked into the original records and found that the confessional statement has the signature of the appellant. Besides the above, the examination of the appellant under Section 313 Cr.P.C is to the effect that he has nothing to say and does not remember anything with regard to the relevant date or the incident, as he was intoxicated with drugs and liquor. However, answer to the Question No. 19, is as follows:

"PW-30 Julie Lalnunzami stated before the Court that the accused Lalrammawia had confessed his guilt and accordingly recorded confessional statement u/s 164 Cr.P.C after observing all formalities. Have you anything to say on this"

The appellants answer to the above question is as follows:

"Yes, it is correct."

12. In the case of Ashok Debbarma v. State of Tripura, reported in (2014) 4 SCC 747 , the Apex Court has held that the statement made under Section 313 Cr.P.C solely by themselves are not enough to convict the accused. However, the statement can be used for corroboration along with other evidence for conviction.

13. The appellant in his appeal petition has stated that he regrets the commission of the offense and has prayed for mercy. The appellant in his appeal has stated that he had no prior intention to kill the victim. However, he has stated the following in his appeal petition:

"As I was much influenced by my alcoholic consumption, I partly know that I try to have sexual intercourse with her, as she was crying, I am afraid to be known by others. I then take a brick and collide her head to top her uttering sound. So far I could know, it was a slight or forceless colliding. Actually I did not try to kill her. Therefore, even so far I could have known, I did not apply a hard strike upon her."

The appellant in his appeal has stated that the use of the word "pounded" by the Trial Court was wrong and that there was only a slight impact/strike on the child.

14. The evidence of Dr. Lalrozama is to the effect that the following injuries were noted on the body of the child:

1. Abrasion and contusion on the lower limbs, pelvis, chest, neck, face and scalp.

2. Lacerations on the face, fore head and scalp and genital.

3. Depressed fracture of skull bone with exposure of skull cavity and intracranial haemorrhage.

15. In the opinion of the Doctor, the cause of death was head injury caused by blunt force impact. Moreover, injuries on the genitals suggest sexual intercourse and there was presence of spermatozoa. The PME also shows the presence of various injuries on the body of the deceased child.

16. Keeping in view the confessional statement of the appellant that the appellant had smashed the head of the child with a brick, Doctors report which states that there was a depressed fracture of skull bone with exposure of skull cavity and intracranial haemorrhage, we find that the appellant had used excessive force on the child. The PME having shown that there were various injuries on the body of the victim child, besides being raped by the appellant, we are of the considered view that the appellant had the intention and motive to kill the deceased child.

17. In view of the above, we do not find any reason to allow the present appeal and the appeal is accordingly dismissed. Send back the LCRs.

18. In appreciation of the assistance rendered by the learned Amicus Curiae, Mrs. Dinari T. Azyu, the fee of the Amicus Curiae is fixed at Rs. 9,000/-, which shall be paid by the Mizoram State Legal Services Authority as per the Notification No. J.11013/1/2011-LJE dated 4.12.2014 issued by the Secretary to the Government of Mizoram, Law & Judicial Department and published in the Mizoram Gazette dated 5.12.2014.