(1.) THE Jail Criminal Appeal is directed against the judgment and order dated 2-12-2004 passed by the learned addl. Sessions Judge, Rourkela, in S. T. No. 181/15/2003 convicting the appellant-Chhotu alias Purna Chandra Kusal (hereinafter called 'accused') under Sections 302 and 376 of the Indian Penal Code (IPC) for committing rape and murder of a small child of five years of age by name Kajal on the children's Day of the year 2002. The Death Reference is a reference made by the learned Addl. Sessions Judge, rourkela, under Section 366 of the Code of criminal Procedure, 1973 ('cr. P. C. ') hereinafter) for confirmation of the sentence of death awarded to the appellant under Section 302 of the Indian Penal Code ('ipc' in short) by the judgment and order dated 2-12-2004 passed in S. T. No. 181/15/2003. The condemned convict has also filed the aforesaid Jail Criminal Appeal challenging the aforesaid judgment and order of conviction and sentence passed by the trial Court. Both the Death Reference and the Jail Criminal Appeal having given rise to common questions of fact and law were heard analogously and are being disposed of by this common judgment.
(2.) BRIEFLY stated, the case of the prosecution is : Accused-appellant Chhotu alias purna Chandra Kusal and P. W. 5-Brunda jaiswal, the mother of the deceased Girl-Kajal, were neighbours and were residing in a Basti adjoining the Railway Line near bondamunda Railway Station Cabin 'd'. On 14-11-2002 at about 5 p. m. , P. W. 5 left her house for the local market to sell the coal collected from the side of the railway line, leaving behind her son (P. W. 10) in the house and her deceased-daughter aged about 5-7 years, who was playing with the accused. After 15-20 minutes, P. W. 5, the mother of the deceased girl, returned to her house, found that there was no electricity and also could not find her daughter. Then she along with her son (P. W. 10) searched for the deceased but could not find her. After some time, P. W. 5 learnt that the dead body of her daughter was lying on the railway track. She rushed to the spot and saw that the dead body of her daughter was lying on the rail track of sick line No. 1 in between two bogies. On getting information, the police arrived at the spot, registered one U. D. case and made inquest over the dead body and sent the dead body for post-morterm examination. From the post-mortem report, it was found that the girl was raped and murdered by throttling and accordingly FIR was drawn up on the basis of the inquiry conducted in the U. D. case and investigation was taken up. During the course of investigation, the police arrested the accused-appellant, who on interrogation confessed to have committed the murder of the deceased and then led the I. O. to the place adjoining one Engineering Office of the S. E. Railway at bondamunda surrounded by old asbestos wall and pointed out the place where he had committed the rape and murder of the deceased. The I. O. noticed the blood-stain on the abestos boundary wall and collected the same. The accused confessed to have kept the wearing apparel of the day of occurrence at his residence and gave recovery of the same, which was seized by the police. Similarly the wearing apparel of the deceased was also seized. Thereafter wearing apparel of both the deceased and the accused were sent to the Forensic Laboratory along with the soil and sample soil from the spot. On examination it was found that the frock of the deceased and the pant of the accused were contaminated with blood-stain, the chadi of the deceased and her vaginal swab had blood-stain coupled with semen. After investigation charge-sheet was submitted.
(3.) THE plea of the accused was one of denial. The prosecution in order to prove its case examined as many as 19 witnesses, exhibited 18 documents and marked 13 Nos. of material objects.