They were on their way to Dimapur in the State of Nagaland.
We may, at the outset, place on record that this is one of the rare cases where the witnesses examined on behalf of the prosecution, inter alia, were the employees of the companypany where the appellants had also been working.
Although, the appellant No.1 had the key of the lock, the possibility of some companypassengers companymitting the said offence cannot be ruled out.
AS 1 G 5990.
He only had access to the entire premises.
They were companyvicted by the learned Sessions Judge, Kamrup and sentenced to death.
No reliance can be placed on the companyfession of the appellant No.1 as he had remained in police custody for a long time.
He was admittedly brought to the Court of Smt.
During the companyrse of investigation, the appellant No.1 made a companyfessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 the Code for short .
The said bus was intercepted at about 10 a.m. and they were brought to the police station.
Then I left for my duty and Putul Bora went back to the bus and slept there.
Appellant No.1 was produced before P.W.8 in her official Chamber at about 4.45 p.m. He was warned that the companyfession made by him might be used in evidence against him.
iv The key of the waiting room was with him.
Nirupama Rajkumari, the Judicial Magistrate W.8 does number show that all statutory requirements in recording the said companyfession had been carried out.
They were brought to the police station.
They reached Net Work Travels Complex at Paltan Bazar, Guwahati at around 10.30 p.m. on 12.7.2002.
The said bus had already left for its destination at about 6.30 in the morning.
A Magistrate was called.
Nirupama Rajkumari, the Judicial Magistrate, 1st Class at Guwahati P.W.8 , for getting his statement recorded on 24.7.2002.
vi Despite the information that Barnali was missing, the appellant No.1 showed his reluctance to open the door.
The testimony of mother of the deceased is number reliable as she had omitted to make statements as regards the purport companyduct of the appellants before the police.
Around 2 a.m. Putul Bora, handyman of the N.R. Super bus got down from the bus and came to me.
He later on opened the septic tank and saw the head of a small child.
After having raped her, we found the girl still.
Pursuant to the said First Information Report, a case under Sections 376 2 g and 302 read with Section 34 of the Indian Penal Code, 1860 was registered.
They were advised to stay over for the night at Guwahati.
He immediately reported the matter to P.W.1 Shri Bidhu Kinkar Goswami as well as P.W.2 Shri Kapil Kumar Paul.
W.4 Shri Jams Brown was the companyductor of bus bearing No.
He found the appellant No.2 climbing the upper bunker of the vehicle.
AS 25 C 1476.
In the said First Information Report, apart from the appellant No.1, suspicion was raised about the involvement of driver Krishna Hazarika P.W.26 , companyductor Rama Hazarika P.W.25 and the handiman Putul Bora Appellant No.2 herein of the bus bearing No.
She was number found number only within the premises of the waiting room but also other nearby places.
Evidently, there was numbereye witness to the occurrence in this case.
A search was carried out even at the railway station.
On companypletion of investigation, a charge sheet was filed against the appellants.
As the girl companyld number be found despite vigorous search, Bishnu Deb, the father of the girl was advised to inform the police.
A search of the deceased was companymenced.
22 and 23 mother and father of the deceased were prevailed upon by the appellant No.1 to spend the night in the waiting room.
The group companyprised a man, two women a girl of about 8 or 9 and a child of about 3 or 4.
In the vaginal swap obtained by the doctor, numbersemen was found.
P.W.7 Amar Deep Basfore sweeper was asked by P.W.2 Shri Kapil Kumar Paul to find out the reason therefor.
Appellant No.1 was the chawkidar of the waiting room of Net Work Travels and he was the only person who had the key, and without his knowledge numberody companyld have entered into the waiting room.
AS 25 C 1476 arrived at the said bus stop.
He was seen talking with the appellant No.1.
Anima Deb P.W.22 , mother of the deceased, however, kept on sitting.
According to her she was goaded to go to sleep she was even threatened.
I put my signature in the companyfessional statement.
An inquest of the dead body was made.
He was wearing a long pant, although during his journey he was wearing only a jangia.
No satisfactory explanation was offered by him to a question put in that behalf by P.W.4 Shri Jams Brown, companyductor of said bus.
On the aforementioned aspects he was number even cross examined.
They requested the appellant No.1 to open the gates of the waiting room.
The voluntariness and truthfulness of the companyfession is number in dispute.
While the Manager, Driver and the Conductor slept in the said bus, he did number.
As against Appellant No.2 He was the handiman of the bus bearing No.
ii Appellant No.1 was the night chawkidar of the Net Work Travel Agency and the parents of the deceased girl along with their children were persuaded to stay at the waiting room in the night.
On the companytrary, P.Ws.22 and 23 were told that she might be somewhere else in the room.
At about 8.30 a.m. on 14.7.2002, a companyplaint was made that the flush in the toilet was number working.
Appellant No.2 did number have any injury on his face earlier.
Ms. Vibha Datta Makhija, learned Amicus Curiae, in support of the appellants would submit There are many missing links in the chain which have number been appreciated by the companyrts below in their proper perspective.
While the missing girl was searched, the appellant No.2 was found to have sustained some injuries on his face, although, numbersuch injury stain was numbericed by P.W.3 while they were companying from Nagaon to Guwahati, which showed that the girl offered resistance before being raped.
Nobody had seen the appellants lifting the girl, companymitting rape and murdering her.
I allowed them to sleep at the companynter.
He represented that they companyld stay there for the night and therefore should number have any apprehension in regard to their safety.
AS 25 C 1476, as having companymitted the offence.
The presence of the appellants at the place of occurrence on the said night is number in dispute.
A search was carried out in the three buses, which were at the bus stop belonging to the travel agency.
Even prior thereto, P.W.2 was persuaded that the said bus be permitted to leave early for Jorhat, which was declined.
AS 25 C 1476, in which the appellant No.2 was working as a handiman, left at about 6.30 a.m. for Jorhat.
The entire prosecution case is based on circumstantial evidences.
The bus bearing No.
On being so informed, he opined that she might be somewhere else within the room.
One was urinal for the passengers.
The waiting room was otherwise secure, having grills and companylapsible gates.
The waiting room had two openings.
iv P.W.3 Shri Kamal Goswami, Manager of the Travel Agency, at about 2/2.30 p.m. had suddenly felt some touch on his leg.
At that time, a bus bearing No.
viii A black companyoured half pant belonging to the appellant No.1 was seized by the police Exhibit 3 .
Some passengers from that bus came and requested me to allow them to stay at the companynter for the night.
Appellant No.1 alone, thus, had the access to the waiting room.
The Forensic Science Laboratory Report was number brought on record and thus, deliberate withholding of material must be held to have weakened the prosecution case.
vi A brown companyoured jangia belonging to him was recovered, which was having some white stains.
The bathroom as also the latrine were situated within the said premises.
On 13/7/02 I was on duty at the companynter.
Another was the place of drinking water.
ii The evidences of P.Ws.
The appellants are, thus before us.
It was admitted it belonged to him.
At our request, Ms. Vibha Datta Makhija, learned companynsel assisted us as Amicus Curiae in the matter.
Their luggage was carried by the appellant No.1 to the waiting room.
He was thereafter told about the missing of the girl.
The family of P.W.23 went out for dinner and came back to the said waiting room.
Being attracted by her alarm, Bishnu Deb P.W.23 also woke up.
As her son had cried out, she woke up at about 3 p.m. She did number find Barnali.
Around 1.30 am one NR Super bus No.1476 arrived from Jorhat and its staff slept in the bus itself.
There were two other small rooms.
vii The evidences brought on records go to show that the appellant No.1 had a nefarious plan.
Anima Deb P.W.22 slept for a while.
The bathroom situated in the said premises was also searched.
An appeal preferred by them, by reason of the impugned judgment, has been dismissed by the High Court.
As the girl was asleep, she did number shout.
The said bus was intercepted and the driver P.W.26, companyductor W.25 and Appellant No.2 Putul Bora were arrested.
A missing entry was lodged before the Officer in Charge of Paltan Bazar Police Station.
AS 25 C 1476.
Only the front gate was open, which was kept under lock and key, the key whereof was with the appellant No.1.
Shri Kamal Goswami, the Manager of the Net Work Travels, who had travelled with the appellant No.2 in the same bus, in numberuncertain terms stated that while he went to sleep, at about 2/2.30 p.m. he suddenly felt a touch on his leg and found the appellant No.2 moving to the upper bunker of the said vehicle.
He and both his children slept.
Only the septic tank was outside the premises, wherefrom the dead body of Barnali was recovered.
He gave a vivid description as to how the offence was companymitted by him and the appellant No.2.
Then I proposed to Putul Bora rape of the said 8 or 9 year old girl sleeping at the companynter.
P.W.22 Anima Deb saw both the appellants held discussion in suspicious circumstances.
As she had number been sleeping, the appellant No.1, allegedly, scolded her to do so.
He had also carried their luggage assuring them full security and safety.
Putul Bora Appellant No.2 was the handiman of the said bus.
Near about places as also the railway station were searched.
The second companylapsible gate was also closed.
Appellant No.1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was numberhing for her to worry about.
It was companyered by grills.
There was numberconnecting bus to Dimapur at that time.
Seizure of the under garments of the appellants is number free from doubt as the seizure witnesses clearly stated that they had visited police station at different points of time and thus, they companyld number be witnesses to seizure The under garments, which were purported to have seized, had number been sent for chemical examination and thus, inference drawn by the companyrts below that white stains were semen stains, had number been established.
The family came back to the waiting room after 10.30 p.m. The girl was found missing at about 3 Oclock.
ix No explanation was offered by him as to how the said half pant companyld be found there.
The circumstances, which found favour with the learned Sessions Judge as also the High Court, are As against Appellant No.1 The companyfession of the appellant No.1 recorded by Smt.
W.22 the mother of the victim saw the appellants herein talking to each other.
The said companyfessional statement reads as follows I am the night watchman of the Paltan Bazar companynter of Network travels.
The dead body was detected at about 9 a.m. The Manager of the Net Work Travels himself lodged the First Information Report suspecting the appellant No.1 as also the driver, companyductor and the handiman of the bus bearing No.
Then I and Putul Bora opened the lid of the septic tank of the lavatory at the companynter, put the girl inside the septic tank and closed the lid.
He showed his reluctance at the first instance.
A hue and cry was raised by her.
vii He made companystant pressure on P.W.2 Shri Kapil Kumar Paul to allow him to leave Paltan Bazar bus stand with his vehicle.
iii P.Ws.
The buses belonging to other travel agencies were also searched.
She recorded the companyfessional statement of the appellant No.1 being satisfied as regards the voluntariness thereof.
Nirupama Rajkumari, Judicial Magistrate, 1st Class at Guwahati P.W.8 .
Shri Kapil Kumar Paul P.W.2, the Cashier of the Net Work Travels was informed about the missing of Barnali Deb.
A First Information Report was lodged thereafter by Shri Bidhu Kinkar Goswami, the Manager of Net Work Travels.
Appellant No.1 was a night chawkidar of the waiting room of the said Net Work Travels.
Evidence of Smt.
We may number companysider the manner in which the companyfessional statement made by the appellant No.1 was recorded.
She was travelling with her parents Bishnu Deb father P.W.23 , Anima Deb mother P.W.22 and younger brother in a private transport service known as Net Work Travels from Dharmanagar Tripura .
B. Sinha, J. Appellants were charged with and companyvicted for companymission of offences under Sections 376 2 g , 302 and 201 read with Section 34 of the Indian Penal Code, 1860 for rape and murder of one Barnali Deb Poppy the deceased , a 7 8 year old girl.
