Orissa High Court
- vs - on 6 May, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
IN THE HIGH COURT OF ORISSA, CUTTACK
DSREF No.04 of 2019
From judgment and order dated 18.09.2019/19.09.2019 passed
by the 3rd Additional Sessions Judge -cum- Presiding Officer,
Children's Court, Cuttack in Special G.R. Case No.44 of 2018.
---------------------
State of Odisha
-Versus-
Mohammed Mustak ....... Condemned Prisoner/
Accused
For State of Odisha: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
For Condemned
Prisoner/Accused: - Mr. Ramanikanta Pattanaik
Mr. Bikash Chandra Parija
Advocate
CRLA No.817 of 2019
Mohammed Mustak ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Ramanikanta Pattanaik
Mr. Bikash Chandra Parija
Advocate
For Respondent: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
---------------------
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE R.K. PATTANAIK
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Date of Hearing: 19.04.2024 Date of Judgment: 06.05.2024
---------------------------------------------------------------------------------------------------
By the Bench: The reference under section 366 of the Code of
Criminal Procedure, 1973 has been submitted to this Court by
the learned 3rd Additional Sessions Judge -cum- Presiding Officer,
Children's Court, Cuttack (hereinafter 'the trial Court') in Special
G.R. Case No.44 of 2018 for confirmation of death sentence
imposed on Mohammad Mustak (hereinafter 'the appellant') by
the judgment and order dated 18.09.2019/19.09.2019 and
accordingly, DSREF No.04 of 2019 has been instituted. CRLA
No.817 of 2019 has been filed by the appellant challenging the
self-same judgment and order of conviction passed by the
learned trial Court.
The appellant faced trial in the trial Court for
commission of offences under sections 363/364/376AB/302 of
the Indian Penal Code (hereinafter 'the IPC') read with section 6
of the Protection of Children from Sexual Offences Act, 2012
(hereinafter 'POCSO Act') on the accusation that on 21.04.2018
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
evening at about 6.30 to 7.00 p.m. in village Jagannathpur under
Salipur police station, he kidnapped the minor granddaughter of
the informant (hereinafter the 'deceased'), aged about six years
from the lawful guardianship of her parents in order that she
might be murdered and that he committed rape on the deceased
on the verandah of Jagannathpur Nodal U.P. School (hereinafter
'the school') and also committed her murder.
The learned trial Court vide impugned judgment and
order dated 18.09.2019/19.09.2019 though acquitted the
appellant of the charge under section 364 of the I.P.C., but found
him guilty for the offences punishable under sections 363/
376AB/302 of the I.P.C. read with section 6 of the POCSO Act
and awarded him death sentence for the offence under section
302 of the I.P.C. so also for the offence under section 376AB of
the I.P.C. and sentenced him to undergo R.I. for a period of
seven years and to pay a fine of Rs.20,000/- (rupees twenty
thousand), in default, to undergo further R.I. for one year for the
offence under section 363 of the I.P.C., however no separate
sentence was awarded for the offence under section 6 of the
POCSO Act in view of the section 42 of the said Act. The
sentences awarded to the appellant were directed to run
concurrently.
Page 3 of 120
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
Since both the DSREF and the criminal appeal arise
out of the same judgment, with the consent of learned counsel
for both the parties, those were heard analogously and are
disposed of by this common judgment.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter F.I.R.) (Ext.7) lodged by P.W.4 Masud
Ahmed, is that on 21.04.2018, while he had been to read Namaz
in the evening, there was a power cut in his village
Jagannathpur. After reading the Namaz, he returned home and
found that his deceased granddaughter was not there in the
house for which he asked his daughter-in-law about the
deceased, to which the daughter-in-law replied that the
deceased might be wandering nearby. The daughter-in-law of
P.W.4 herself went to search for the deceased but could not
locate her and accordingly, she informed P.W.4. In order to find
out the deceased, P.W.4 searched here and there and also
informed the neighbours about the non-availability of the
deceased for which the neighbours also joined him to trace out
the deceased but they could not get her. At that time, three
young boys came on a motor cycle and informed P.W.4 that the
deceased was lying in a naked condition on the school veranda
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
with bleeding injuries. Getting such information, the villagers
rushed to the school and shifted the deceased to the Salipur
Hospital and then the deceased was referred to S.C.B. Medical
College & Hospital, Cuttack (hereafter 'S.C.B.M.C.H, Cuttack') for
treatment. P.W.4 suspected that after committing sexual assault
on the deceased, someone had left her in the injured condition.
By the time P.W.4 arrived at the spot, the deceased
had already been shifted to the hospital. P.W.4 then came to
Salipur police station with P.W.11 Sayed Nayan Faique. P.W.11
scribed the F.I.R. as per the narration of P.W.4 which was read
over and explained to P.W.4 by P.W.11 and on the written
report, P.W.4 put his signature and accordingly, the F.I.R. was
lodged before the Inspector in-charge of Salipur police station,
namely, Debendra Kumar Mallick (P.W.23), who registered
Salipur P.S. Case No.81 dated 21.04.2018 under sections
376(2)(i)(m)/307 of I.P.C. and section 6 of POCSO Act against
unknown person and he himself took up the investigation of the
case.
During the course of investigation, P.W.23 examined
the witnesses and visited the spot at 10.25 p.m. which was the
verandah of the school along with his staff. Since it was pitch
dark at the spot, he engaged two police officials to guard the
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
spot till the arrival of the scientific team and sniffer dog. He also
examined some of the witnesses including P.W.7 Rina @
Premalata Ojha and came to know that the deceased was last
seen in the company of the appellant while purchasing
chocolates from her shop. He examined some more witnesses
and also intimated the I.I.C. of Mangalabag police station to
attend the treatment of the deceased at S.C.B.M.C.H, Cuttack.
On 22.04.2018, he came to the spot village and searched for the
appellant and got the information that the appellant was
proceeding towards Kajihat and accordingly, he apprehended the
appellant at Kajihat Bazar and brought him to the police station.
He made requisition to the Superintendent of Police for
engagement of scientific team. The Scientific Officials arrived at
the spot along with sniffer dog and took photographs. The
Scientific Officer collected exhibits from the spot and prepared
spot visit report vide Ext.33. The exhibits were sealed and
handed over to the I.O. (P.W.23) for sending the same to the
Director, S.F.S.L. for chemical examination. P.W.23 seized all
those exhibits as per seizure list Ext.14. He visited the grocery
shop of P.W.7 and she produced one plastic jar containing some
meethi malai chocolates and another plastic jar containing
Cadbury Perk chocolates from which chocolates were sold to the
Page 6 of 120
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
appellant on the date of occurrence as per seizure list Ext.13.
P.W.23 also seized some other articles as per seizure list Ext.14.
He visited the S.C.B.M.C.H, Cuttack and when he came to know
the condition of the deceased has become critical, he made a
prayer to the Sub-Collector for deputing an Executive Magistrate
for recording dying declaration of the deceased. The blue colour
half pant of the deceased suspected to be containing blood stain
and two meethi malai chocolates which were found in the left
side pant pocket of the victim were seized by P.W.23 on
production by the doctor as per seizure list Ext.20. Since the
condition of the deceased was not stable, her dying declaration
could not be recorded. The appellant was arrested on 22.04.2018
at 6.00 p.m. observing formalities of the arrest, his pair of
chappals was seized as per seizure list Ext.42 and the seized
articles were kept in P.S. malkhana of Salipur police station. The
appellant was sent on 23.03.2018 to the Department of F.M.T.,
S.C.B.M.C.H, Cuttack through escort party for his medical
examination and P.W.23 seized the shirt of the appellant having
blood stain on it on being produced by the doctor as per seizure
list Ext.21. The biological samples of the appellant collected by
the doctor which were produced by the escort party along with
the wearing apparels of the appellant were seized as per seizure
Page 7 of 120
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
list Ext.18 which was kept in P.S. malkhana and on 23.04.2018,
the appellant was forwarded to the Court. On 24.04.2018, the
biological samples of the deceased collected by the doctor were
seized by P.W.23 as per seizure list Ext.19 which was also kept
in P.S. malkhana. Prayer was made by the I.O. (P.W.23) to the
Court for recording the statements of P.W.5 Sk. Jiaul Haque,
P.W.7 Premalata Ojha @ Reena and P.W.13 Gulzar Ahmed under
section 164 of Cr.P.C. and accordingly, the same was recorded
on 26.04.2018. The I.O. also made a prayer to the Court for
sanction of victim compensation to the family of the deceased.
On 27.04.2018 prayer was made to send the exhibits to S.F.S.L.
for chemical examination and accordingly, the learned J.M.F.C.,
Salipur forwarded the exhibits to S.F.S.L., Bhubaneswar through
constables. The I.O. also made a prayer to the Court for getting
the D.N.A. profiling, which was allowed. The injury reports of the
deceased and the appellant were collected and the same were
submitted to the Court. On 29.04.2018, the I.O. received
information from the I.I.C., Mangalabag police station that the
deceased expired while undergoing treatment and one U.D. case
has already been instituted at Mangalabag police station and
step has been taken for conducting inquest and post mortem
over the dead body of the deceased. The I.O. intimated to the
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
Court about the death of the deceased and also made a prayer to
convert the case to one under sections 376(2)(i)(n)/302 of the
I.P.C. read with section 6 of the POCSO Act on 30.04.2018. On
the prayer of the I.O., the statement of P.W.18 Sk. Afzal Jama
was recorded on 01.05.2018. On 02.05.2018, the I.O. made a
query to the Executive Engineer, CESU to ascertain the power
failure time in the village Jagannathpur on the date of occurrence
in the evening hours and received the reply that the load
shedding time was in between in 6.20 p.m. to 7.21 p.m. on
21.04.2018 as per the written instruction given vide Ext.49. The
U.D. case record from I.I.C. Mangalabag police station along with
some material objects were seized by the I.O. (P.W.23) on
04.05.2018. The bed head ticket of the deceased was also seized
from the record keeper of the S.C.B.M.C.H, Cuttack as per
seizure list Ext.29. The appellant was brought on remand on
05.05.2018 and he was interrogated and the statement was
recorded and the appellant led the police party to different places
in connection with the commission of offences and accordingly,
the I.O. prepared a map of spots vide Ext.52. The I.O. received
the report from S.F.S.L. He also seized a camera, memory card
and some photographs as per seizure list Ext.34 and handed
over the same in the zima of Scientific Officer.
Page 9 of 120
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
On completion of investigation, P.W.23 submitted
charge sheet dated 10.05.2018 under sections 363/376AB/302
of the I.P.C. and section 6 of the POCSO Act against the
appellant before the learned trial Court on 11.05.2018 and
accordingly, the learned trial Court took cognizance of offences
under sections 363/376AB/302 of the I.P.C. and section 6 of the
POCSO Act.
Framing of Charge:
3. The learned trial Court framed charges as aforesaid
against the appellant on 23.05.2018 and since the appellant
refuted the charges, pleaded not guilty and claimed to be tried,
the sessions trial procedure was resorted to prosecute him and
establish his guilt.
Prosecution Witnesses, Exhibits & Material Objects:
4. During the course of trial, in order to prove its case,
the prosecution has examined as many as twenty three
witnesses.
P.W.1 Dr. Amarendra Nayak was working as
Associate Professor, Department of F.M. & T. attached to
S.C.B.M.C.H, Cuttack, who conducted post mortem over the
dead body of the deceased on 29.04.2018 and proved his report
vide Ext.1.
Page 10 of 120
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
P.W.2 Dr. Shreeja Jajodia was working as Medical
Officer attached to Salipur C.H.C., who treated the deceased at
the first instance on 21.04.2018 and referred her to
S.C.B.M.C.H, Cuttack. She proved her report marked as Ext.2.
P.W.3 Dr. Rajanikanta Swain was the Associate
Professor, Department of F.M. & T. attached to S.C.B.M.C.H,
Cuttack, who examined the appellant on police requisition on
23.04.2018 and proved his report as per Ext.3.
P.W.4 Masud Ahmed is the grandfather of the
deceased and also the informant in the case. He supported the
prosecution case and proved the F.I.R. marked as Ext.7.
P.W.5 Sk. Ziaul Haque is a co-villager of both the
appellant and the deceased. He stated to have seen the
deceased playing with her elder brother Gullu (P.W.13) in the
evening hours on the date of occurrence and the presence of the
appellant in the vicinity.
P.W.6 Dr. Jyotish Chandra Choudhury was the
Associate Professor, Department of F.M. & T. attached to
S.C.B.M.C.H, Cuttack and he examined the deceased as per the
direction of the Professor & H.O.D. of Pediatric Department of
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
S.C.B.M.C.H, Cuttack on 22.04.2018 and proved his report Ext.9.
He also proved the query report vide Ext.11/1.
P.W.7 Premalata Ojha @ Reena was an Asha Karmi
and she was having a grocery shop at village Jagannathpur. She
stated about the appellant coming with the deceased to her shop
in the evening hours on the date of occurrence, purchased
chocolates and then proceeded towards the school with the
deceased. She is also a witness to the seizure of two plastic
containers containing chocolates as per seizure list marked as
Ext.13.
P.W.8 Ajit Kumar Ojha @ Babuni @ Ajaya is one of
the co-villagers who searched for the deceased and ultimately
found the deceased lying on the school veranda in a naked
condition with bleeding injury. He further stated that they called
the people who were present near the school gate and also they
proceeded near the house of the deceased and informed about
the incident.
P.W.9 Sk. Aslam and P.W.10 Sk. Azimul Haque, who
are the co-villagers of both the appellant and the deceased, are
the post-occurrence witnesses. They both took the deceased to
Salipur Hospital on the moped of P.W.10, where the doctor after
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
giving an injection, referred her to S.C.B.M.C.H, Cuttack. P.W.10
stated that while they were near his house, P.W.8 and two boys
came and informed them that the child was lying on the school
verandah.
P.W.11 Sayed Nayan Faique is a co-villager of both
the appellant and the deceased, who accompanied P.W.4 to the
police station and scribed the F.I.R. marked as Ext.7. He stated
that hearing that someone had killed the deceased and thrown
her at the school verandah, he proceeded to village
Jagannathpur on his motorcycle and saw a gathering in the
village and on enquiry, came to know that the deceased had
been shifted to Salipur hospital and he came to Salipur hospital
and on the way, he picked up P.W.4 and proceeded to Salipur
P.H.C. He is also a witness to the seizure as per seizure list vide
Ext.14.
P.W.12 Ifte Khan Ahemed @ Soni is the father of
the deceased and also the son of the informant (P.W.4). He
stated that on the date of occurrence, he was at Hyderabad and
on getting information from villagers about the incident, he came
to his village and then he came to S.C.B.M.C.H, Cuttack where
the deceased was under treatment. He is also a witness to the
inquest over the dead body of the deceased marked as Ext.15.
Page 13 of 120
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
P.W.13 Gulzar Ahemad, who is the elder brother of
the deceased, stated about that the deceased was last seen in
the company of the appellant. He further stated he along with
the deceased was playing near the car parked at canal
embankment and watching news in the mobile phone of Babulu
(P.W.5). He also stated that the appellant took the deceased
towards the school.
P.W.14 Nimai Charan Mohapatra was working as
A.S.I. of Police of Salipur police station, who accompanied the
scientific team to the spot of occurrence and he is also a witness
to the report of the dog master as per Ext.17, seizure of Cadbury
Perk chocolate and meethi malai chocolate, the biological
samples of the appellant and the victim as per seizure lists
marked as Ext.14, Ext.18 and Ext.19 respectively.
P.W.15 Sayed Rajat Alli is the uncle of the victim and
also a witness to the seizure of one blue colour panty of the
victim and two nos. of chocolates and blue-red colour striped T-
shirt with a chain at the Pediatric Department of S.C.B.M.C.H,
Cuttack as per seizure list marked as Ext.20 and Ext.21
respectively.
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
P.W.16 Parth Sarathi Behera was the Dog Master,
who had taken the sniffer dog to the spot of occurrence for
detection of the crime and proved his report marked as Ext.17.
P.W.17 Anupama Biswal was the Anganwadi Karmi at
Jagannathpur, who proved the register maintained at the
Anganwadi Centre where the deceased was prosecuting her
studies and the date of birth of the deceased was mentioned as
02.05.2012 in such register and on the date of occurrence, the
deceased was aged about five years and eleven months. She
stated about the seizure of register vide seizure list Ext.23 and
taking the same in zima as per zimanama Ext.24.
P.W.18 Sk. Afzal Jama is a witness to the last seen of
the deceased with the appellant on 21.04.2018 in between 6.00
to 6.30 p.m. when he was present in his grocery shop. He stated
that after about 45 minutes, the appellant returned alone and
went inside his house in a disturbed condition and after some
time, the mother of the deceased and other family members
searched for the deceased as she was found missing and
subsequently, the deceased was found on the school verandah
with bleeding injuries and she was shifted to the hospital.
Page 15 of 120
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
P.W.19 Gangadhar Saseni was the S.I. of Police
attached to the Medical outpost, S.C.B.M.C.H, Cuttack. He took
up inquiry of Mangalabag P.S. U.D. Case No.769 of 2018. He
proved the command certificate vide Ext.26, dead body challan
as per Ext.27, seizure of bed head ticket as per seizure list
Ext.29, the sealed envelopes as per seizure list Ext.28 and other
connected documents which were seized by the I.O. as per
seizure list Ext.30.
P.W.20 Maheswar Mishra, who was the A.S.I. of
police, Medical Outpost, S.C.B.M.C.H, Cuttack, is a witness to the
seizure of bed head ticket of the deceased and two sealed
packets as per seizure lists marked as Ext.29 and Ext.30
respectively.
P.W.21 Minar Behera, who was an Instructor, I.T.I.,
Salipur, is a witness to the confessional statement made by the
appellant in the police station as per Ext.31. He is also a witness
to the spot visit memorandum as per Ext.32.
P.W.22 Sandhyarani Bhuyan was the Scientific
Officer, D.F.S.L., Cuttack and she was a member of the scientific
team who visited the spot. She proved her report vide Ext.33.
During the course of scientific examination, she prepared the
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
digital photographs of the scene and handed over the same to
the I.O. which was seized as per seizure list Ext.34. She also
took the zima of digital camera as per zimanama Ext.36.
P.W.23 Debendra Kumar Mallick was the Inspector
in-charge of Salipur police station and he is the Investigating
Officer of the case.
The prosecution exhibited fifty five documents. Ext.1
is the post mortem report, Ext.2 is the report of P.W.2, Ext.3 is
the medical examination report of the appellant, Ext.4 is the
police requisition in respect of the appellant, Ext.5 is the report
of the blood bank and opinion report of P.W.3, Ext.6 is the report
of the blood bank, Ext.7 is the F.I.R., Ext.8 is the 164 Cr.P.C.
statement of P.W.5, Ext.9 is the medical examination report of
the deceased, Ext.10 is the medical requisition of the deceased,
Ext.11 is the requisition received by P.W.6 from the I.O., Ext.12
is the 164 Cr.P.C. statement of P.W.7, Ext.13 and Ext.14 are the
seizure lists, Ext.15 is the inquest report, Ext.17 is the report
prepared by P.W.16, Ext.18 is the seizure list of the biological
samples of the appellant, Ext.19 is the seizure list of biological
sample of the deceased, Ext.20 is the seizure list in respect of
one blue colour panty of the deceased and two numbers of
chocolates, Ext.21 is the seizure list in respect of blue red colour
Page 17 of 120
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
striped T-shirt with a chain, Ext.22 is the report submitted by
P.W.17 regarding the age of the deceased, Ext.23 is the seizure
list in respect of the register maintained at the Anganwadi,
Ext.24 is the zimanama of the Anganwadi register in favour of
P.W.17, Ext.25 is the register in which the relevant entry of the
victim, Ext.26 is the command certificate issued in favour of
Manoj Kumar Swain, Ext.27 is the dead body challan, Ext.28 is
the seizure list, Ext.29 is the seizure list of bed head ticket of the
deceased, Ext.30 is the seizure list, Ext.31 is the statement
sheet, Ext.32 is the memorandum, Ext.33 is the spot visit report,
Ext.34 is the seizure list, Ext.35 is the certificate issued by
P.W.22, Ext.36 is the zimanama, Ext.37 is the forwarding letter
issued by S.O., D.F.S.L., Cuttack, Ext.38 is the seizure list in
respect of photographs, Ext.39 is the crime details form, Ext.40
is the seizure list, Ext.41 is the letter issued to the Sub-Collector,
Cuttack for recording the dying declaration, Ext.42 is the seizure
list in respect of chappal of the appellant, Ext.43 is the intimation
given to the appellant's family member regarding his arrest,
Ext.44 is the command certificate issued in favour of S.I. Asit
Ranjan Jena, Ext.45 is the prayer made for sending the exhibits
to S.F.S.L. for chemical examination, Ext.46 is the forwarding
report, Ext.47 is the command certificate, Ext.48 is the
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
acknowledgement receipt receiving the exhibits at S.F.S.L.,
Bhubaneswar, Ext.49 is the reply of CESU, Salipur Electrical
Division to the query made by I.O., Ext.50 is the zimanama,
Ext.51 is the seizure list in respect of sealed packet containing
the photographs of the deceased, Ext.52 is the spot map, Ext.53
is the report of S.F.S.L., Ext.54 is the prayer of the I.O. sending
the biological samples of the deceased to S.F.S.L. and Ext.55 is
the report received from the S.F.S.L.
The prosecution also proved nine material objects.
M.O.I is the upper part of wearing apparels akin to a 'T' shirt
having a Zip liner on the neck portion, M.O.II is the sealed
plastic container containing one Perk chocolate, M.O.III is the
another sealed plastic jar containing meethi malai chocolate,
M.O.IV is the SDHC card of 'Sandisk' make of 8 GB storage,
M.O.V is the envelope from which the card was brought out,
M.O.VI is the C.D. along with a forwarding letter issued by S.O.,
DFSL, Cuttack, M.O.VII is the pant of victim, M.O.VIII is the shirt
of appellant and M.O.IX is the pant of the appellant.
Defence Plea:
5. The defence plea of the appellant is one of denial and
it is pleaded that he has been falsely implicated in the case.
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The defence has examined one witness. D.W.1
Laxmidhar Sathua Mohapatra is the Psychiatrist attached to
Circle Jail, Choudwar who stated to have treated the appellant in
the Mental Ward and prescribed medicines to him. He proved the
medical papers and reports of the appellant relating to his
depressive disorders.
The defence exhibited seven documents. Ext.A is the
treatment papers of the appellant, Ext.B and Ext.C are the
medical reports of the appellant proved by D.W.1, Ext.D, Ext.E,
Ext.F and Ext.G are the certified copies of final forms in different
cases.
Findings of the Trial Court:
6. The learned trial Court after analysing the oral as
well as the documentary evidence on record and taking into
account the evidence of P.W.17, the Anganwadi Karmi, her
report (Ext.22) furnished to the I.O., Anganwadi Register
(Ext.25) entry wherein the date of birth of the deceased was
mentioned to be 02.05.2012 and further considering the age of
her elder brother (P.W.13), who was of seven years, has been
pleased to hold that the deceased was a girl below twelve years
of age.
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Learned trial Court emphasised on the answer given
by the doctor (P.W.6) to the query made by the I.O. (P.W.23)
vide Ext.11/1 and came to hold that the deceased was subjected
to sexual assault attracting the penal provision under the POCSO
Act.
Taking into account the evidence of the doctor
(P.W.6), the report of the Scientific Officer vide Ext.53, the
medical examination report of the appellant vide Ext.3, the Court
came to hold that the irresistible conclusion is that the deceased,
a girl below twelve years was subjected to 'rape' as defined
under section 375 of I.P.C. and 'aggravated penetrative sexual
assault' as defined under section 5(m) of the POCSO Act which is
punishable under section 376AB and section 6 of the POCSO Act.
Learned trial Court further considered the evidence of
the doctor (P.W.1) who conducted post mortem examination and
the report (Ext.1) submitted by him and came to hold that the
deceased died a homicidal death and that the opinion of the
doctor regarding ante mortem injuries on the person of the
deceased suggested so.
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The learned trial Court observed that the case is
based on circumstantial evidence and relied upon eight
circumstances emerging from the records which are as follows:
(i) The deceased was playing in front of her
house at about 6.30 to 7.30 p.m. on 21.04.2018
and there was power failure in the locality.
P.W.5, P.W.13, the deceased and the appellant
were present at that time at the relevant place;
(ii) Missing of the deceased from the place
where she was playing;
(iii) The appellant was last seen with the
deceased;
(iv) The deceased was found lying on the
veranda of Jagannathpur Nodal U.P. School in an
injured condition;
(v) Absence of the appellant from the
occurrence village soon after the occurrence;
(vi) Finding of the chocolates from the pocket
of the deceased;
(vii) Availability of blood on the shirt of the
appellant (which he was putting on the relevant
day) that matched with the blood group of the
deceased;
(viii) Appellant pointed out the places to which
he took the deceased to accomplish the crime.
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So far as the circumstance no. (i) is concerned, the
learned trial Court held that the fact that there was power failure
in the occurrence locality has been well proved. Considering the
evidence of P.W.5 and P.W.13, the reply given by the Executive
Engineer vide Ext.49, it was held that at the relevant time there
was a power failure and the deceased was playing in front of her
house where a car was parked which belonged to the father of
the deceased and that P.W.5, P.W.13, the deceased and the
appellant were present at that time.
So far as the circumstance no. (ii) is concerned,
taking into account the evidence of P.W.4, P.W.5, P.Ws. 8 to 11,
P.W.13 and P.W.18, it was held that the deceased was found
missing in the evening hours on the date of occurrence which
has been proved by leading adequate evidence.
So far as the circumstance no. (iii) is concerned,
taking into account the evidence of P.W.5, P.W.7, P.W.13 and
P.W.18, it was held that their evidence is clinching, trustworthy
and it inspires confidence of the Court and the circumstance has
been proved by the prosecution beyond all reasonable doubt and
since the appellant in his statement recorded under section 313
of Cr.P.C. has not explained the same, this lack of explanation by
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the appellant was held to be a very strong circumstance against
him.
So far as the circumstance no. (iv) is concerned,
taking into account the evidence of P.W.8, P.W.9, P.W.10,
P.W.18 so also the physical clue collected by the Scientific Officer
(P.W.22) from the spot, it was held that their evidence has
remained unimpeached as nothing has been brought out from
their evidence to raise any doubt on their veracity.
So far as the circumstance no. (v) is concerned,
taking into account the evidence of the I.O. (P.W.23) that the
appellant was found missing from his house and absence of any
material to prove the plea of alibi taken by the appellant in the
accused statement under section 313 of Cr.P.C. that he had been
to see the opera at Gangeswar, it was held that the appellant
fled away from the occurrence village.
So far as the circumstance no. (vi) is concerned,
taking into account the evidence of P.W.7, P.W.10, P.W.14 and
the seizure list prepared by the I.O. vide Ext.20, it was held that
chocolates were found from the pocket of the deceased.
So far as the circumstance no. (vii) is concerned,
taking into account the S.F.S.L. report vide Ext.53 and the
evidence of the I.O. (P.W.23), the seizure list of the wearing
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apparels of the appellant vide Ext.18, it was held that the blood
available on the shirt of the appellant which he was putting on
the relevant day matched with the blood group of the deceased.
So far as the circumstance no. (viii) is concerned,
the learned trial Court held that the appellant making confession
before the police while in custody consequent upon which the
places where the appellant took the deceased were discovered is
not relevant under section 27 of the Evidence Act as by that
time, the places were already known to the I.O. who had
prepared the spot map in the crime detail form which came to be
marked as Ext.39/2. However, it was held that in view of the
knowledge of the appellant that those were the places where the
deceased was playing, the shop from which the appellant
purchased the chocolates and the school where the deceased
was found in an injured condition, are admissible under section 8
of the Evidence Act as the conduct of the appellant.
Learned trial Court came to hold that the forensic
evidence on record is available abundantly to come to a
conclusion that the deceased was assaulted in the school and she
was raped and was killed by the appellant. No importance was
given to the evidence of D.W.1, the doctor of Circle Jail,
Choudwar.
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It was further held that all the proved circumstances
provided a complete chain and no link was found missing and the
Court came to the conclusion that the case against the appellant
has been proved to the hilt and accordingly, the appellant was
found guilty under sections 363/376AB/302 of the I.P.C. and
section 6 of the POCSO Act, however it was held that the offence
under section 364 of the I.P.C. could not be substantiated and
accordingly, the appellant was acquitted of such charge.
Submission of Parties:
7. Mr. Ramanikanta Pattanaik, learned Senior Counsel
being ably assisted by Mr. Bikash Chandra Parija, Advocate
appearing for the appellant emphatically contended that the
non-mention of name of the appellant as a suspect in the F.I.R.
in the factual scenario of the case which was lodged two hours
after the deceased was traced out in an injured condition on the
school varandah, particularly when the last seen of the appellant
with the deceased had come to the fore, is a damaging feature of
the prosecution case. The conduct of P.W.7, who stated to have
seen the appellant taking the deceased towards the school after
purchasing chocolates for her, in not disclosing about the same
before the family members of the deceased even after she came
to the spot hearing commotion and saw the deceased being
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shifted on a motor cycle with bleeding injury, creates a grave
doubt about her veracity. Moreover P.W.7 is a stock witness of
the Police Department and she has been cited as a witness in
many other cases as admitted by her. He further argued that the
evidence of P.W.18 to have seen the appellant taking the
deceased in the evening hours on the date of occurrence by the
side of the canal embankment and after sometime the appellant
returning alone in a disturbed condition and going inside his
house, should not be relied upon as he had not intimated the
mother and grandfather (P.W.4) of the deceased about the last
seen of the appellant with the deceased even though he was
well-known to the family of the deceased so also P.W.4. Learned
counsel further argued that though the learned trial Court relied
upon the circumstance of the absence of the appellant from the
occurrence village soon after the incident but except the
evidence of the I.O. (P.W.23), there is no other clinching
evidence in that respect. Though P.W.23 stated that he
apprehended the appellant from Kajihat Bazaar but the appellant
had stated in his accused statement to the question no.77 that
he was not arrested at Kajihat Bazaar rather he was
apprehended from his house and was taken to the police station.
P.W.18 has stated that the appellant went inside his house in a
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disturbed condition and thereafter no one had seen him leaving
the village and no one had searched for the appellant in his
house which would have been very natural, had anyone doubted
about the involvement of the appellant in the crime committed
and thus the absconding theory is not at all believable. It is
further argued that the prosecution has miserably failed to prove
that the shirt from which the blood stain was detected and found
to be matched with the blood group of the deceased was worn by
the appellant while he was in the company of the deceased. It is
further argued that the investigation is perfunctory and no
explanation has been offered by the prosecution as to why the
F.I.R., which was stated to have been lodged on 21.04.2018 at
10.15 p.m., reached the Court of learned J.M.F.C., Salipur on
23.04.2018 when the Court was merely at a distance of 500
metres away from the police station. Learned counsel further
argued that the I.O. admitted that while forwarding the appellant
to the Court, he had already recorded the statements of twenty
one witnesses which were very material to the case but he had
sent only two sheets of 161 Cr.P.C. statements of the witness
and the arrest memo to the Court at that time. In the forwarding
report, there is no mention that who were the witnesses
examined by him and what were their statements, which was
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very much necessary in view of the provision under section 167
of Cr.P.C. to allow the prayer of the I.O. to remand the appellant
to judicial custody and such conduct of the I.O. (P.W.23) pre-
supposes that neither the F.I.R. was lodged when it was shown
to have been lodged nor the statements were recorded when
those were shown to have been recorded and it was all ante-
dated. He further argued that three persons namely, Hedad Alli,
Sania @ Sushant Kumar Das and Ajay @ Ajit Kumar Ojha
(P.W.8) first noticed the deceased in a nude condition on the
corridor of Jagannathpur U.P. School but the other two witnesses
were not examined. Similarly though the I.O. (P.W.23) stated to
have recorded the statement of the mother of the deceased, but
she was not cited as a witness in the charge sheet nor examined
during trial and thus, the prosecution deliberately withheld the
vital witnesses from the witness box, for which adverse inference
should be drawn against the prosecution. Learned counsel
further argued that P.W.1, the Associate Professor in the
Department of F.M.T., S.C.B.M.C.H., Cuttack, who conducted the
post-mortem examination over the dead body of the deceased
did not detect any external or internal injury in the genital of the
deceased and he had also not explicitly mentioned in the post-
mortem report (Ext.1) as to whether the death of the deceased
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was homicidal or accidental. The doctor (P.W.6), who examined
the deceased on 22.04.2018, has mentioned in his report (Ext.9)
that hymen was intact and there was no inflammation or
discharge or bleeding in the private part of the deceased and the
vulvovaginal samples and anal samples, which were preserved
and tested, did not reveal any physical clue of recent sexual
intercourse. He also did not detect any physical clue of sexual
offence over the wearing apparels of the deceased except mild
redness at the inner side folds of labia minora, which though
according to him on account of attempted sexual assault or
sexual manipulation, but he has clarified in the
cross-examination that his opinion was a 'possibility' and not a
'definite opinion' and the redness noticed could be caused by
self-infliction due to itching and therefore, there is no conclusive
evidence that rape has been committed on the deceased and
that the appellant committed her murder as she died after eight
days of the date of occurrence, and the doctor (P.W.1) has
stated that he had not explicitly mentioned if the death was
homicidal or accidental and therefore, it is a case where benefit
of doubt should be extended in favour of the appellant and even
otherwise since rape and murder has not been proved, it is not a
fit case for imposing the extreme penalty of death. Learned
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Senior Counsel for the appellant relied upon the decisions of the
Hon'ble Supreme Court in the cases of Sharad Birdhichand
Sarda -Vrs.- State of Maharashtra reported in A.I.R. 1984
Supreme Court 1622, Bachan Singh -Vrs.- State of Punjab
reported in (1980) 2 Supreme Court Cases 684, Machhi
Singh & others -Vrs.- State of Punjab reported in A.I.R.
1983 Supreme Court 957.
Mr. Janmejaya Katikia, learned Additional
Government Advocate, on the other hand, supported the
impugned judgment and argued that the last seen of the
deceased in the company of the appellant in the evening hours
on the date of occurrence when there was darkness on account
of power cut, just prior to she was found in an injured condition
on the school verandah, is a very clinching evidence which has
not been explained by the appellant. Learned counsel further
argued that the chemical examination report marked as Ext.53,
which carries summary and conclusion of D.N.A. test indicates
that the blood stains of the victim were found on the wearing
apparels of the appellant and no explanation has come from the
appellant as required under section 106 of the Evidence Act. It
was argued that the appellant has taken plea of alibi being
present at Gangeswar Yatra and also that he has been falsely
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implicated on account of property dispute, due to political rivalry
and even the jail doctor was examined to show that he was
suffering from psychiatric disorder, however, no such plea has
been clearly established. It is argued that the absconding of the
appellant from the village since the night of occurrence, where
her family members were residing, is another relevant feature,
which reflects the conduct and the same is admissible under
section 8 of the Evidence Act. Learned counsel submitted that
the evidence of the doctor (P.W.6) coupled with his query report
(Ext.11/1) clearly establishes the charge under section 376AB
I.P.C. against the appellant. It is further argued that the doctor
(P.W.1), who conducted the post-mortem examination over the
dead body of the deceased, stated that he noticed several
external injuries on the person of the deceased and two injuries,
i.e. injury nos. (v) & (vii) along with corresponding internal
injuries to brain were fatal to cause death in ordinary course of
nature and the death was due to coma as a result of blunt
trauma injury to head and corresponding brain injury coupled
with effects of hypoxic brain injury and therefore, when the
appellant inflicted such injuries during commission of sexual
offence, which ultimately proved fatal and the deceased
remained in coma for eight days and ultimately died, the
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definition of 'murder' as mentioned under section 300 of I.P.C. is
squarely attracted. It is argued that the learned trial Court has
rightly held the appellant guilty and since it is a rarest of rare
case, imposed death sentence. He has relied upon the decisions
of the Hon'ble Supreme Court in the cases of Bhajan Singh @
Harbhajan Singh and Ors. -Vrs.- State of Haryana reported
in (2011) 7 Supreme Court Cases 421, State of Uttar
Pradesh -Vrs.- Satish reported in (2005) 3 Supreme Court
Cases 114 and Vasanta Sampat Dupare -Vrs.- State of
Maharashtra reported in (2017) 6 Supreme Court Cases
631.
Principle for appreciating the circumstantial evidence:
8. There is no dispute that the case is based on
circumstantial evidence. Firstly, we proceed to discuss the law on
the appreciation of circumstantial evidence.
A Constitution Bench of the Hon'ble Supreme Court in
the case of M.G. Agarwal -Vrs.- State of Maharashtra
reported in A.I.R. 1963 Supreme Court 200 has observed as
under:
".....It is a well established rule in criminal
jurisprudence that circumstantial evidence can
be reasonably made the basis of an accused
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person's conviction if it is of such a character
that it is wholly inconsistent with the innocence
of the accused and is consistent only with his
guilt. If the circumstances proved in the case are
consistent either with the innocence of the
accused or with his guilt, then the accused is
entitled to the benefit of doubt. There is no
doubt or dispute about this position. But in
applying this principle, it is necessary to
distinguish between facts which may be called
primary or basic on the one hand and inference
of facts to be drawn from them on the other. In
regard to the proof of basic or primary facts, the
Court has to judge the evidence in the ordinary
way, and in the appreciation of evidence in
respect of the proof of these basic or primary
facts there is no scope for the application of the
doctrine of benefit of doubt. The Court considers
the evidence and decides whether that evidence
proves a particular fact or not. When it is held
that a certain fact is proved, the question arises
whether that fact leads to the inference of guilt
of the accused person or not, and in dealing with
this aspect of the problem, the doctrine of
benefit of doubt would apply and an inference of
guilt can be drawn only if the proved fact is
wholly inconsistent with the innocence of the
accused and is consistent only with his guilt. It is
in the light of this legal position that the
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evidence in the present case has to be
appreciated."
Five golden principles which has been named as
'Panchsheel' curled out by the Hon'ble Supreme Court in the case
of Sharad Birdhichand Sarda (supra) which must be fulfilled
before a case against an accused can be said to be fully
established on circumstantial evidence are as follows:-
(i) the circumstances from which the conclusion
of guilt is to be drawn should be fully
established;
(ii) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty;
(iii) the circumstances should be of a conclusive
nature and tendency;
(iv) they should exclude every possible
hypothesis except the one to be proved, and
(v) there must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
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probability, the act must have been done by the
accused.
In the case of Mohd. Arif -Vrs.- State (NCT of
Delhi) reported in (2011) 13 Supreme Court Cases 621, it
is held as follows:-
"190. There can be no dispute that in a case
entirely dependent on the circumstantial
evidence, the responsibility of the prosecution is
more as compared to the case where the ocular
testimony or the direct evidence, as the case
may be, is available. The Court, before relying
on the circumstantial evidence and convicting
the accused thereby has to satisfy itself
completely that there is no other inference
consistent with the innocence of the accused
possible nor is there any plausible explanation.
The Court must, therefore, make up its mind
about the inferences to be drawn from each
proved circumstance and should also consider
the cumulative effect thereof. In doing this, the
Court has to satisfy its conscience that it is not
proceeding on the imaginary inferences or its
prejudices and that there could be no other
inference possible excepting the guilt on the part
of the Accused.
191....At times, there may be only a few
circumstances available to reach a conclusion of
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the guilt on the part of the accused and at
times, even if there are large numbers of
circumstances proved, they may not be enough
to reach the conclusion of guilt on the part of the
accused. It is the quality of each individual
circumstance that is material and that would
essentially depend upon the quality of evidence.
Fanciful imagination in such cases has no place.
Clear and irrefutable logic would be an essential
factor in arriving at the verdict of guilt on the
basis of the proven circumstances."
Analysis of evidence on each circumstance:
9. Keeping in view the principles laid down, we will now
proceed to examine the circumstances chalked out by the
learned trial Court and see whether the findings arrived at were
legally justified.
9.1. First Circumstance:
The first circumstance relied upon by the learned trial
Court is that the deceased was playing in front of her house at
about 6.30 to 7.30 p.m. on 21.04.2018 and there was a power
failure in the locality at that time and P.W.5, P.W.13 and the
appellant were present at that place.
To find out as to whether there was power failure in
the locality at the time of occurrence, the learned trial Court has
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relied upon Ext.49 i.e. the reply of the Executive Engineer,
CESU, Salipur Electrical Division to the query made by the I.O.
(P.W.23) that there was load shedding in village Jagannathpur
on the date of occurrence i.e. 21.04.2018 in the evening hours
from 6.20 p.m. to 7.21 p.m.
The I.O. (P.W.23) has stated that he made a query
to the Executive Engineer, CESU to ascertain about power failure
in village Jagannathpur on the date of occurrence in the evening
and received a reply that the area Lineman had taken a shut
down from 6.20 p.m. to 7.21 p.m. on 21.04.2018 which
occasioned a power failure in village Jagannathpur. He proved
the reply which was marked as Ext.49. The extract of the
register maintained in CESU office dealing with the load shedding
duration has been marked as Ext.49/2. The witnesses like P.W.4,
P.W.5, P.W.7 and P.W.8 have also stated about power failure at
the locality of the occurrence in the evening hours, which has not
been challenged by the defence in any manner. Thus, we are of
the view that the learned trial Court rightly held that there was a
power failure in the locality at the time of occurrence.
The learned trial Court further relied upon the
evidence of P.W.5 and P.W.13 and came to the conclusion that
the evidence of both these witnesses clearly showed that at the
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relevant time, the victim was playing in front of her house where
a car was parked and P.W.5, P.W.13, the deceased and the
appellant were present at that time.
P.W.5 Sk. Ziaul Haque has stated that on 21.04.2018
during the evening hours, while he was watching news in his
mobile phone by the road side by leaning against an Ambassador
car, the deceased, her elder brother Gullu (P.W.13) were playing
and the appellant was wandering nearby. He further stated that
when he received a call in his mobile phone and went inside the
house, at that time near the Ambassador car, the deceased,
P.W.13 and the appellant were present. He further stated that
when he heard hullah (commotion), he came to know that the
deceased was missing and subsequently he heard that the
deceased was lying on the school veranda in an unconscious
condition sustaining bleeding injuries. He stated in the cross-
examination that he watched news in the mobile phone from
6.15 p.m. to 6.20 p.m. i.e. for five minutes and it was a summer
day and at that time there was a power failure and about half an
hour after reaching his house, he heard about missing of the
deceased and after hearing about the missing of the deceased,
he did not disclose to have seen the appellant in the company of
the deceased and P.W.13 to the informant (P.W.4).
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The learned counsel for the appellant Mr. Pattanaik
contended that the conduct of P.W.5 in not disclosing before
P.W.4, the informant and the family members of the deceased to
have seen the deceased in the company of the appellant and also
with P.W.13 even after knowing that the deceased was missing,
is a highly suspicious feature as it was expected of him to
communicate the same to the family members of the deceased.
The learned counsel for the State, on the other hand, argued
that P.W.5 might not have suspected the appellant's role in
connection with the missing of the deceased merely because he
was in the vicinity where the deceased was playing with her
elder brother (P.W.13) when he himself left for his house on
receiving a call on his mobile phone.
Adverting to the contentions raised by the learned
counsel for both the parties, we are of the humble view that the
evidence of P.W.5 cannot be doubted or disbelieved merely
because he did not choose to disclose before the family members
of the deceased the fact that he had seen the appellant near the
deceased while she was playing with P.W.13 even after coming
to know about the missing of the deceased. The appellant was a
co-villager and he was a family man having wife and children
and there was nothing on record that the appellant had any
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criminal antecedents in the past or he was a licentious person
and therefore, not to raise any suspicion against the appellant in
connection with the missing of the deceased was very natural on
the part of P.W.5. Though suggestion has been given to P.W.5
that his father wanted to purchase a piece of land which the
father of the appellant purchased at a higher price for which his
family bore grudge against the family of the appellant, P.W.5 has
outrightly denied such suggestion. Nothing further has been
elicited in the cross-examination to disbelieve the evidence of
P.W.5 and thus, his evidence on the first circumstance has
remained consistent and unshaken.
P.W.13 is a child witness, who was aged about seven
years when he deposed in Court and he was the elder brother of
the deceased. The learned trial Court put some formal questions
to him about his name, name of his school, class in which he was
studying, what he had taken in the breakfast on that day, who
was standing by his side in the Courtroom on that day etc. in
order to ascertain whether he was competent to testify and after
noting down the questions and the respective answers thereto,
the learned trial Court was of the view that the witness
understood the questions put to him and gave rational answers
and therefore, he was held to be a competent witness. No
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challenge has been made to the competency of P.W.13 to depose
by the learned counsel for the appellant. In the case of P.
Ramesh -Vrs.- State reported in (2019) 20 Supreme Court
Cases 593, the Hon'ble Supreme Court held as follows:-
"16. In order to determine the competency of a
child witness, the Judge has to form her or his
opinion. The Judge is at the liberty to test the
capacity of a child witness and no precise rule
can be laid down regarding the degree of
intelligence and knowledge which will render the
child a competent witness. The competency of a
child witness can be ascertained by questioning
her/him to find out the capability to understand
the occurrence witnessed and to speak the truth
before the court. In criminal proceedings, a
person of any age is competent to give evidence
if she/he is able to (i) understand questions put
as a witness; and (ii) give such answers to the
questions that can be understood. A child of
tender age can be allowed to testify if she/he
has the intellectual capacity to understand
questions and give rational answers thereto. A
child becomes incompetent only in case the
court considers that the child was unable to
understand the questions and answer them in a
coherent and comprehensible manner. If the
child understands the questions put to her/him
and gives rational answers to those questions, it
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can be taken that she/he is a competent witness
to be examined."
After going through the evidence of P.W.13 and the
manner in which he withstood the long gruelling cross-
examination and gave minute details of the incident clearly
indicates that he had attained a measure of mature
understanding and there is no infirmity in his understanding of
the facts perceived and his ability to narrate the same correctly.
Thus, we are of the view that the learned trial Court has rightly
held P.W.13 to be a competent witness.
P.W.13 has stated that he along with his sister (the
deceased) was playing near the car and P.W.5 was watching
news in his mobile phone. When P.W.5 received a phone call and
left the place, he asked the deceased to return home but the
deceased stated that she would come later and asked him to go
home. He further stated that the appellant was present near the
vehicle at that time. Though he stated in the examination-in-
chief that the appellant took the deceased towards the school
and the deceased did not return home, but in the cross-
examination, he has admitted not to have stated so before the
Magistrate. P.W.13 has stated in the cross-examination that
people were passing through the spot while they were playing
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near the vehicle. This witness like P.W.5 has stated about the
presence of the appellant near the car parked at the canal
embankment where the victim was playing and his evidence
inspires confidence.
Thus, the learned trial Court on the basis of the
evidence of P.W.5 and P.W.13 has rightly held that the first
circumstance regarding the presence of the appellant at the
canal embankment where the deceased was playing on the date
of occurrence in the evening hours when there was a power
failure in the locality, has been proved by the prosecution.
9.2. Second Circumstance:
The second circumstance that has been relied upon
by the learned trial Court is the missing of the deceased from the
place where she was playing.
The learned trial Court has relied upon the evidence
of P.W.4, P.W.5, P.W.7, P.W.8, P.W.9, P.W.10, P.W.11, P.W.13
and P.W.18 and came to hold that this circumstance has been
proved by leading adequate evidence.
P.W.4, the informant has stated in his examination-
in-chief that on 21.04.2018 during the evening hours, he had
been to read Namaz in Masjid and came home at about
6.17/6.18 p.m. and at that time, there was a power failure and
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Date: 06-May-2024 11:27:30
he enquired the whereabouts of the deceased from his daughter-
in-law i.e. the mother of the deceased, but she did not find the
deceased in the house and asked him to search for her outside
and he searched for the deceased in the neighbourhood houses
but failed to get her. In the cross-examination, P.W.4 has stated
that his daughter-in-law told him that the deceased might be
near the canal side and by saying so, she herself went in search
of the deceased and after sometime, she returned and told him
(P.W.4) that she could not find the deceased and accordingly, he
went to search for the deceased. P.W.4 further stated that he
went to the canal side and searched for the deceased in three to
four houses situated nearby the canal side but could not get the
deceased for which he returned home.
P.W.7 has also stated that while she was in her shop,
the basti people came to her looking for the deceased and
enquired about her.
P.W.8 has stated that on the date of occurrence at
about 7.30 to 8.00 p.m. while he along with one Sania and one
Hedad was sitting in the village school field, he heard that a girl
of their village was missing since power failure.
P.W.9, P.W.10, P.W.11, P.W.13 and P.W.18 have
also stated about the missing of the girl child in the evening
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hours on the date of occurrence and nothing has been brought
out in the cross-examination of these witnesses by the defence
to disbelieve this part of the evidence.
Therefore, the learned trial Court has rightly held
that the second circumstance has been proved by the
prosecution by leading adequate evidence.
9.3. Third Circumstance:
The third circumstance relied upon by the learned
trial Court is that the appellant was last seen with the deceased.
The learned trial Court has relied upon the evidence
of four witnesses i.e. P.W.5, P.W.7, P.W.13 and P.W.18.
P.W.5 has stated that on 21.04.2018 during the
evening hours, while he was watching news in his mobile phone
by the roadside by leaning against an Ambassador car, the
deceased along with her elder brother Gullu (P.W.13) were
playing and the appellant was wandering nearby and when he
went inside the house on receipt of a call in his mobile phone,
the appellant was found present with the deceased and P.W.13
near the Ambassador car. As already discussed under
circumstance no.(i), nothing has been elicited in the cross-
examination to disbelieve the evidence of P.W.5 and his evidence
has remained consistent and unshaken.
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P.W.13, the elder brother of the deceased has also
stated about the presence of the appellant while he was playing
with the deceased near the car parked at the canal embankment
and further stated that P.W.5 was also watching news in his
mobile phone and when P.W.5 left the place, he asked the
deceased to return back home but the deceased told him that
she would come later and asked him to go home and he further
stated that when he departed from that place, the deceased and
the appellant were present at that place. As already discussed
under circumstance no.(i), the evidence of P.W.13 inspires
confidence.
Two other important witnesses examined by the
prosecution for proving the last seen of the appellant with the
deceased are P.W.7 and P.W.18.
P.W.7 has stated that she was an Asha Karmi and
she was having a grocery shop in the village Jagannathpur and
on 21.04.2018 in the evening hours, while she was present in
her shop, there was a power cut and she had kept emergency
light in her shop. The appellant came to her shop at that time
with the deceased and asked for chocolates of Rs.10/- and
accordingly, she gave one Perk chocolate and five numbers of
meethi malai chocolates which cost Rs.1/- each to the appellant
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and accordingly, the appellant paid her Rs.10/- towards the cost
of the chocolates. She further stated that the appellant removed
the wrapper of one of the Rs.1/- chocolates and gave the same
to the deceased and on suspicion, when she asked the appellant
as to how he had come to her shop with the deceased, the
appellant told her that he had brought her as she was crying and
then the appellant proceeded towards the school along with the
deceased. She further stated that after some time, the basti
people came to her looking for the deceased and enquired about
her to whom she stated that the appellant had come to her shop
with the deceased and then proceeded towards the school with
her. She further stated that a little later, she heard a commotion
and came out of the house and saw the people running here and
there and she asked the people as to what had happened and
came to know from them that a child was lying at the school with
bleeding injury for which she proceeded towards the place where
there was commotion and she saw the deceased, who had
sustained bleeding injury, being taken on a motor cycle.
The learned counsel for the appellant challenging the
evidence of P.W.7 argued that not only she is a stock witness as
she had deposed in other cases but also her statement that she
had not visited the house of the deceased to intimate about the
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fact that was within her knowledge concerning the victim and the
appellant creates a grave doubt about her veracity. It was
further argued that if according to P.W.7, she had disclosed
before the basti people about the appellant coming to her shop
with the deceased for purchasing chocolates and then proceeded
towards the school with her, it would have spread like wild fire
and immediately come to the knowledge of the family members
of the deceased including P.W.4 and in such a scenario, P.W.4
would not have missed naming the appellant as a suspect in the
F.I.R. which was lodged at Salipur police station on that night at
about 22.15 hours against unknown persons.
Learned counsel for the State, on the other hand,
submitted that since P.W.7 has specifically stated not to have
met P.W.4, the informant on the date of occurrence nor the
family members of the deceased on that day, it might not be
within the knowledge of P.W.4 before he lodged the F.I.R. that
the appellant took the deceased to the grocery shop of P.W.7,
purchased chocolates and gave it to the deceased and then took
her towards the school and therefore, non-mentioning the name
of the appellant as a suspect in the F.I.R. cannot be a ground to
disbelieve the evidence of P.W.7.
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P.W.18 Sk. Afzal Jama has stated that he had seen
the deceased on 21.04.2018 in between 6.00 to 6.30 p.m. while
the appellant was taking her towards Kamar Sahi by the side of
canal embankment and he was then present in his grocery shop.
He further stated that after about forty five minutes, the
appellant returned alone and went inside his house and he was
seen in a disturbed condition. He further stated that after some
time, the mother of the deceased and other family members
searched for the deceased as she was found missing and
subsequently, the deceased was found in the school verandah
with bleeding injuries for which she was taken to the hospital. He
stated to have narrated the occurrence before the police so also
before the Magistrate at Salipur Court.
Learned counsel for the appellant argued that P.W.18
has stated that after coming to know from the discussion of the
co-villagers that P.W.4 so also the mother of the deceased were
searching for her, he had not intimated them what he knew and
therefore, his non-disclosure regarding the appellant's role
immediately creates suspicion about the truthfulness of his
version and there was every possibility on his part to make such
statement at a belated stage when the police arrived at the
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scene of occurrence suspecting the appellant's involvement in
the crime in question.
Learned counsel for the State, on the other hand,
argued that suggestion has been given to P.W.18 that his family
had enmity with the family of the appellant and that he was
deposing falsehood to put the appellant in trouble and that he
had been tutored to falsely depose against the appellant to which
he has denied. Learned counsel for the State further argued that
the I.O. arrived in the occurrence village on the night of the date
of incident at 10.45 p.m., visited the spot, took steps for
guarding the spot as it was pitch dark and also examined some
witnesses. P.W.7 was examined in that night itself and P.W.18
on the next day i.e. on 22.04.2018. Therefore, there is no
delayed disclosure of these two witnesses before the police. The
learned counsel further argued that the knowledge of P.W.7 and
P.W.18 about the occurrence cannot be disbelieved merely
because the F.I.R. is lodged against unknown person. It is his
argument that F.I.R. is not an encyclopaedia which must disclose
all facts and details relating to the offence so also the name of
the accused and therefore, non-mention of the name of the
appellant in it cannot be a ground to disbelieve the prosecution
case.
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Adverting to the contentions raised by the learned
counsel for the respective parties relating to the evidence of
P.W.7 and P.W.18, we are of the view that when the appellant
was not only a co-villager of the deceased but also a married
person having children and there was nothing on record that he
had got any criminal antecedents or he was a licentious person,
merely because the deceased accompanied him to the shop of
P.W.7 where the appellant purchased chocolates for her or she
was seen going with him towards the school could not have
raised any suspicion in the minds of these two witnesses
regarding his involvement in the crime in question. It was a
power cut time in the village and a summer season. Most of the
people must have been out of their house or on the canal
embankment to get some cool air and it would have hardly
raised any suspicion when the deceased was seen in the
company of the appellant. Even if P.W.7 has disclosed before
some of the co-villagers, who were searching for the deceased,
that she had seen the appellant going towards the school with
the victim after purchasing chocolates, that might not have
raised suspicion against the conduct of the appellant in their
minds. There is no material on record that anyone disclosed
before the informant (P.W.4) that the deceased had
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accompanied the appellant to the shop of P.W.7 where the
appellant purchased some chocolates for her and gave it to her
and then the deceased accompanied the appellant towards the
school and that after some time, the appellant returned alone
and he was seen disturbed. The materials on record rather
indicate that the moment the deceased was found lying in an
injured condition on the school verandah, she was immediately
shifted to Salipur Hospital and P.W.4, upon coming to know
about the same, rushed to the spot but since he found that by
that time, the deceased had already been shifted to Salipur
Hospital, he came to the police station and lodged the F.I.R.,
which was scribed by P.W.11. Therefore, there was hardly any
time on the part of P.W.4 to ascertain the appellant's role in the
crime and therefore, non-mentioning of the name of the
appellant as a suspect cannot be a ground to discard the
evidence of P.W.7 and P.W.18. There is also no such delay on
the part of the Investigating Officer (P.W.23) in recording the
statements of these two material witnesses. In the case of
Ganesh Bhavan Patel and others -Vrs.- State of
Maharashtra reported in A.I.R. 1979 Supreme Court 135, it
is held that normally in a case where the commission of crime is
alleged to have been seen by witnesses who are easily available,
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a prudent investigator would give to the examination of such
witnesses precedence over the evidence of other witnesses. It
was further held that when there was an inordinate delay in
recording the statements of material witnesses, it would
inevitably lead to the conclusion that the prosecution story was
conceived and construed after a good deal of deliberation and
delay in a shady setting, highly redolent of doubt and suspicion.
Mere delay in examination of witnesses cannot in all cases be
termed to be fatal so far as prosecution is concerned.
Delay in recording statements of the witnesses by
the I.O. can occur due to various reasons and can have several
explanations. It is for the Court to assess the explanation and if
satisfied, accept the statement of the witness. In the case in
hand, we find that there is hardly any delay in recording the
statements of the material witnesses like these four witnesses
i.e. P.W.5, P.W.7, P.W.13 and P.W.18 by the I.O. (P.W.23). As
already stated, P.W.7 was examined on the date of occurrence
after the spot visit was made by the I.O. in that night itself. Even
P.W.5 Sk. Ziaul Haque was also in that night. Since it was
already late in the night, the other two witnesses i.e. P.W.13
Gulzar Ahmed and P.W.18 Sk. Afzal Jama were examined on the
next day i.e. 22.04.2018. Merely because P.W.5 did not disclose
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what was within his knowledge before P.W.4 prior to giving
statement before the I.O. or P.W.7 did not visit the house of the
deceased to intimate about the fact within her knowledge
concerning the deceased and the appellant or P.W.18 did not
intimate the mother or P.W.4 what he knew cannot be a ground
to disbelieve the evidence of these witnesses, particularly in view
of the short time within which they gave their statements before
the police. Nothing has been asked to P.W.13 by the defence
whether anyone asked him about his knowledge of the
occurrence or he disclosed before his family members
voluntarily. Therefore, it cannot be said that the witnesses
remained silent for a long time even after having knowledge
about a gravely incriminating circumstance against the appellant.
Delay in sending F.I.R. to the Court of learned
J.M.F.C., Salipur, non-sending of important statements like
P.W.7 and P.W.18 recorded to the Court while forwarding the
appellant are argued to be fatal to the prosecution case. It is
argued that neither the F.I.R. was lodged when it was shown to
have been lodged or the statements were recorded when those
were shown to have been recorded and it was all ante-dated.
Adverting to the contentions, it appears that the
F.I.R. was lodged in Salipur police station on 21.04.2018 at
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Date: 06-May-2024 11:27:30
10.15 p.m. The General Diary Reference Entry No.03 dated
22.04.2018 has been made on 22.04.2018 at 11.15 a.m. which
was a Sunday. The Court of learned J.M.F.C., Salipur situates at
a distance of 500 metres away from the police station. The F.I.R.
reached the Court on 23.04.2018 and placed before Magistrate.
Similarly, the I.O. admitted to have recorded the statements of
twenty one witnesses which were very material to the case by
the time the appellant was forwarded to the Court, however, he
sent only two sheets of 161 Cr.P.C. statements of the witness
and the arrest memo to the Court at that time.
It seems from the materials on record that after the
receipt of F.I.R. on 21.04.2018 night, the I.O. was busy in
investigation, examining the witnesses, visiting the spot,
engaging police officials to guard the spot, intimating the I.I.C.
of Mangalabag police station to attend the treatment of the
deceased at S.C.B.M.C.H, Cuttack, searching for the appellant,
apprehending the appellant at Kajihat Bazar, sending requisition
to the Superintendent of Police for engagement of scientific
team, seizing the exhibits collected by Scientific Officers, seizing
different articles, visiting the S.C.B.M.C.H, Cuttack coming to
know about the critical condition of the deceased, making prayer
to the Sub-Collector for deputing an Executive Magistrate for
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recording dying declaration of the deceased, arresting the
appellant after observing formalities of the arrest and taking
steps for keeping the seized articles in P.S. malkhana etc.
In the case of Sarwan Singh and Ors. -Vrs.- State
of Punjab reported in (1976) 4 Supreme Court Cases 369,
it was held that mere delay in dispatch of the F.I.R. is not a
circumstance which can throw out the prosecution case in its
entirety. In the case of Pala Singh -Vrs.- State of Punjab
reported in (1972) 2 Supreme Court Cases 640, it is held
that where the F.I.R. was actually recorded without delay and
the investigation started on the basis of that F.I.R. and there is
no other infirmity brought to the notice, then, however improper
or objectionable the delayed receipt of the report by the
Magistrate concerned, it cannot by itself justify the conclusion
that investigation was tainted and the prosecution insupportable.
In the case of Ravi Kumar -Vrs.- State of Punjab reported in
(2005) 9 Supreme Court Cases 315, it is held that sending
the copy of the special report to the Magistrate as required under
section 157 of the Cr.P.C. is the only external check on the
working of the police agency, imposed by law which is required
to be strictly followed. The delay in sending the copy of the F.I.R.
may by itself not render the whole of the case of the prosecution
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as doubtful, but shall put the Court on guard to find out as to
whether the version as stated in the Court was the same version
as earlier reported in the F.I.R. or was the result of deliberations
involving some other persons who were actually not involved in
the commission of the crime. Immediate sending of the report
mentioned in section 157 Cr.P.C. is the mandate of law. Delay
wherever found is required to be explained by the prosecution. If
the delay is reasonably explained, no adverse inference can be
drawn but failure to explain the delay would require the Court to
minutely examine the prosecution version for ensuring itself as
to whether any innocent person has been implicated in the crime
or not. In the case of Bhajan Singh @ Harbhajan Singh
(supra), it is held that it is not that as if every delay in sending
the report to the Magistrate would necessarily lead to the
inference that the F.I.R. has not been lodged at the time stated
or has been ante-timed or ante-dated or investigation is not fair
and forthright. Every such delay is not fatal unless prejudice to
the accused is shown. The expression 'forthwith' mentioned
therein does not mean that the prosecution is required to explain
delay of every hour in sending the F.I.R. to the Magistrate.
However, unexplained inordinate delay in sending the copy of
F.I.R. to the Magistrate may affect the prosecution case
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adversely. An adverse inference may be drawn against the
prosecution when there are circumstances from which an
inference can be drawn that there were chances of manipulation
in the F.I.R. by falsely roping in the accused persons after due
deliberations. Delay provides legitimate basis for suspicion of the
F.I.R., as it affords sufficient time to the prosecution to introduce
improvements and embellishments. Thus, a delay in dispatch of
the F.I.R. by itself is not a circumstance which can throw out the
prosecution's case in its entirety, particularly when the
prosecution furnishes a cogent explanation for the delay in
dispatch of the report or prosecution case itself is proved by
leading unimpeachable evidence. It is further held that the
defence did not put any question on the delay either in lodging
the F.I.R. or in sending the copy of the F.I.R. to the Magistrate
while cross-examining the Investigating Officer providing him an
opportunity to explain the delay, if any and therefore, the
Hon'ble Court did not give any importance to the submission.
We are of the view that in the factual scenario, there
is no delay either in lodging the F.I.R. or in sending the copy of
the F.I.R. to the Magistrate. It may be pertinent to point out that
defence did not put any question on these issues while cross-
examining the I.O. (P.W.23), providing him an opportunity to
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explain the delay, if any. Thus, we do not find any force in the
submission made by the learned counsel for the appellant in this
regard.
Section 167 of Cr.P.C. mandates that when any
person is arrested and detained in police custody and the
investigation cannot be completed within the period of twenty-
four hours from the time of arrest and detention of person in
custody, and the accusation or the information against such
person appears to be well founded, then the officer in-charge of
the police station or the police officer making investigation, shall
forthwith transmit to the nearest Judicial Magistrate a copy of
the entries in the diary at the time of forwarding the accused to
the Magistrate. This provision has a salutary purpose inasmuch
as the Magistrate has to verify the same to see whether there is
any cogent and prima facie material to detain the person in
custody. Rule 164 of Odisha Police Rules provides that a carbon
copy of the case diary relating to each day's investigation along
with copies of the statements that might have been recorded
under section 161 of Cr.P.C. shall be dispatched to the Circle
Inspector on the following day. It is incumbent upon the
Magistrate before making an order or remand to examine the
copies of the case diary submitted under section 167 of Cr.P.C.
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In the case in hand, if according to the I.O. (P.W.23), statements
of as many as twenty one witnesses which were material to the
case were recorded by the time the appellant was forwarded to
the Court, it was incumbent on the part of the I.O. to send such
statements along with the forwarding report and the arrest
memo etc. but the I.O. has only sent two sheets of 161 Cr.P.C.
statement of the witness and not the rest. The defence has put
specific questions to the I.O. in this regard and suggested that
he did not mention the names of material witnesses whom he
stated to have already examined in the forwarding report of the
appellant as he had not examined such witnesses nor had
recorded their statements under section 161 of Cr.P.C. except
the one which he had sent along with the forwarding report till
the appellant was forwarded to the Court and that the witnesses
were set up subsequently and that he manipulated the
statements in order to suit the prosecution at a belated stage.
Fairness in the investigation into crime is an integral
facet of rule of law and one of the essential features of the
criminal justice delivery system. Mere delay in sending the
statements of the witnesses already recorded to the Court while
forwarding the accused would not make their evidence
unacceptable unless something glaring is brought to the notice of
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the Court or proved otherwise that such statements were non-
existent and subsequently created and ante-dated. Law is well
settled that deficiencies in investigation by way of omissions and
lapses on the part of the investigating agency cannot in
themselves justify a total rejection of the prosecution case (Ref:
Sheo Shankar Singh -Vrs.- State of Jharkhand : (2011) 49
Orissa Criminal Reports (SC) 485). In the case of Ram
Bihari Yadav -Vrs.- State of Bihar and others reported in
A.I.R. 1998 S.C. 1850, it is held that if primacy is given to a
designed or negligent investigation, to the omissions or lapses
created as a result of faulty investigation, the faith and
confidence of the people would be shaken not only in the law
enforcing agency, but also in the administration of justice. In the
case of State of West Bengal -Vrs.- Mir Mohammad Omar
and others reported in (2000) 8 Supreme Court Cases
382, it is held that it is almost impossible to come across a
single case wherein the investigation was conducted completely
flawless or absolutely foolproof. The function of the criminal
Courts should not be wasted in picking out the lapses in
investigation or by expressing unsavoury criticism against
investigating officers. If offenders are acquitted only on account
of flaws or defects in investigation, the cause of criminal justice
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becomes the victim. Efforts should be made by Courts to see
that criminal justice is salvaged despite such defects in
investigation.
We are of the view that non-sending of all the
statements recorded while forwarding the appellant to the Court
cannot be a ground to disbelieve the evidence of the witnesses
examined to prove the last seen of the appellant with the
deceased even though it was a lapse or omission on the part of
the I.O. (P.W.23) who seems to have remained busy in the
investigation of a sensational case like this.
The submission made that P.W.7 is a stock witness
for police department is to be addressed here. P.W.7 has stated
that on previous occasions, she deposed in other cases apart
from giving statements before Magistrate. The I.O. (P.W.23) has
denied the suggestion given by the defence that P.W.7 was a
stock witness for the police and that she had been used to
connect the link to circumstantial evidence. There is nothing on
record in what type of cases she deposed earlier and whether as
a prosecution witness or not. It is no doubt the duty of police to
free the processes of investigation and prosecution from the
contamination of concoction through the expediency of
stockpiling of stock witnesses. The word 'stock' means something
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which is stored or kept in for future use as per availability. Stock
witness is a person who remains at the back and call of the
police and comes in front as per the directions of the police.
Such kinds of witnesses are generally prosecution-favoured
witnesses and therefore, they are highly disfavoured by the
Judges and ordinarily the Courts use to make possible attempts
to sustain the prosecution case on other pieces of evidence
excluding stock witness evidence. When the evidence of P.W.7 is
clinching, trustworthy and reliable and it has not been shattered
in the cross-examination, the same cannot discarded on the
ground of 'stock witness' without any specific material to that
effect.
In our humble view, the learned trial Court has
rightly held that the evidence of four witnesses P.W.5, P.W.7,
P.W.13 and P.W.18 are clinching, trustworthy and it inspires
confidence and further held that the third circumstance i.e. the
last seen of the deceased in the company of the appellant has
been proved by the prosecution beyond all reasonable doubt.
Needless to say that the last seen evidence which
has been adduced by the four witnesses have been put to the
appellant in his statement recorded under section 313 of Cr.P.C.
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at question nos.6, 14, 15, 60 and 63, but he has not offered any
explanation to the same.
While answering to question no.6, which was put in
connection with the evidence of P.W.5 regarding last seen, the
appellant has stated that he had been to witness Gangeswar
Yatra. Law is well settled that plea of alibi postulates the physical
impossibility of the presence of the accused at the scene of
offence by reason of his presence at another place. The plea can
therefore succeed only if it is shown that the accused was so far
away at the relevant time that he could not be present at the
place where the crime was committed (Ref.: Dudh Nath
Pandey -Vrs.- State of U.P. : (1981) 2 Supreme Court
Cases 166). It is incumbent upon the accused, who adopts the
plea of alibi, to prove it with absolute certainty so as to exclude
the possibility of his presence at the place of occurrence. When
the presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the Court would be slow to believe any
counter evidence to the effect that he was elsewhere when the
occurrence happened, but if the evidence adduced by the
accused is of such a quality and of such a standard that the
Court may entertain some reasonable doubts regarding his
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presence at the scene when the occurrence took place, the
accused would, no doubt, be entitled to the benefit of that
reasonable doubt. The burden on the accused in such
circumstances is rather heavy and strict proof is required for
establishing the plea of alibi. (Ref.: Binay Kumar Singh -Vrs.-
State of Bihar : (1997) 1 Supreme Court Cases 283)
In the case in hand, except taking a plea while
answering to question no.6 that he had been to watch
Gangeswar Yatra, nothing has been proved from the side of the
appellant to substantiate such plea. No witness including his own
family members have been examined to say that the appellant
had been to watch Gangeswar Yatra. Even the witnesses, who
stated about the presence of the appellant in the village in the
evening hours of the date of occurrence, have also not been
suggested that the appellant was not present in the village at
that time and he had been to watch Gangeswar Yatra. Therefore,
the learned trial Court has rightly not placed any reliance on this
defence plea.
The examination of an accused under section 313 of
Cr.P.C. is not a mere formality. The questions put and the
answers given are of great use. The accused is to be given
opportunity to explain each and every circumstance appearing in
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evidence against him. It is obligatory on the part of the accused,
while being examined under section 313 of Cr.P.C., to furnish
explanation with respect to the incriminating circumstances
associated with him and the Court must take note of such
explanation. Law is also well settled that when an incriminating
fact has not been put to the accused under section 313 of
Cr.P.C., the said circumstance cannot be used against the
accused. In the case of Pattu Rajan -Vrs.- State of Tamil
Nadu reported in (2019) 4 Supreme Court Cases 771, it
has been held that when the prosecution has proved the
circumstance relating to last seen evidence beyond reasonable
doubt, no explanation, much less any plausible explanation, has
come from the accused in the statement recorded under section
313 of Cr.P.C. The burden had shifted onto the accused to
explain such circumstance as to when they left the company of
the deceased and such non-explanation by the accused provides
an additional link in the chain of circumstances.
Therefore, we are of the view that the appellant has
failed to establish the plea of alibi. The learned trial Court has
rightly held that the third circumstance i.e. the appellant was last
seen with the deceased on the date of occurrence in the evening
hours before a short time when the deceased was found in an
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injured condition on the school verandah, has been proved by
the prosecution.
9.4. Fourth Circumstance:
So far as circumstance no.(iv) noted down by the
learned trial Court on the basis of fact emerged from the
prosecution case is that the deceased was found lying on the
verandah of Jagannathpur Nodal U.P. School in an injured
condition.
Reliance has been placed by the learned trial Court
on the evidence of P.W.5, P.W.7, P.W.8, P.W.9, P.W.10, P.W.18
and the evidence of the Scientific Officer (P.W.22).
P.W.5 has stated that he heard that the deceased
was lying on the school verandah in an unconscious condition
sustaining bleeding injuries, but he has not stated to have visited
the school verandah after hearing the same. Therefore, the
evidence of P.W.5 is no way helpful for the prosecution so far as
this circumstance is concerned.
P.W.7 has stated that hearing commotion that a child
was lying at the school with bleeding injury, she proceeded
towards the place where there was commotion and saw the
deceased with bleeding injury being taken on a motorcycle. In
the cross-examination, she has stated that the distance between
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the gate of the school in question was about 100 meters from
her shop and there were three houses situated in between the
school gate and her shop. She further stated that there was no
boundary wall of the school in question and anyone can enter the
school premises from any side.
P.W.8 has stated that on 21.04.2018 in the evening
hours, he along with Sania and Hedad was sitting in the village
school field and he heard that a girl of his village was missing
since the power failure and while searching, Raquib asked him to
search for the victim near the school and he along with Sania
and Hedad went inside the school premises and took the
assistance of torch light available in the mobile phone of Sania
for the search and saw the deceased was lying on the school
verandah naked with bleeding injury. They called the people
being present near the school gate and some residents of Samal
Sahi also came to the spot. In the cross-examination, he has
stated that the field where they were sitting was adjacent to the
school and due to electricity failure and heat, people were
roaming outside their house. Nothing has been brought out in
the cross-examination to disbelieve his evidence to have noticed
the deceased lying in a nude condition on the school verandah.
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P.W.9 has stated that when three boys informed him
that a child was lying near the school, he along with Azim
(P.W.10) came to the spot on a Luna moped and at the spot,
they found some other persons had gathered and the child was
lying on the verandah of the school with bleeding injury. P.W.10
picked up the child from the verandah and gave her to him and
holding the child, he sat on the Luna and being driven by
P.W.10, he came to Salipur Hospital. In the cross-examination,
he has stated that he received information about missing of the
deceased at 7.00 p.m. and he along with his co-villagers looked
for the deceased from 7.00 p.m. to 8.00 p.m. There was
gathering of co-villagers and movement by them here and there
with the spreading of news of missing of the deceased.
P.W.10 has corroborated the evidence of P.W.9 and
stated that he along with P.W.9 entered the gate first followed
by others with the torch light in the mobile phones and found the
deceased lying on the verandah of the school in a serious
condition and she was also found naked. A Mithi Chocolate was
lying nearby and there was blood coming out from the nose and
other parts of the body of the deceased and then he along with
P.W.9 shifted the deceased in his moped to Salipur Hospital.
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Nothing has been brought out in the cross-examination to
disbelieve his evidence.
P.W.18 has stated that the deceased was found on
the school verandah with bleeding injury and she was taken to
the hospital. In the cross-examination, he has stated to have
heard that the deceased was lying on the school verandah after
about forty-five minutes of the completion of the Namaz. He has
not stated to have visited the school and noticed the deceased
there. Therefore, the evidence of P.W.18 is not much helpful for
proving the circumstance.
The Scientific Officer (P.W.22) has stated that when
she visited the spot on 22.04.2018, she noticed blood stain on
the verandah of the Jagannathpur Nodal U.P. School, Salipur
near the southern side wall in front of Bapuji Kakshya and she
also noticed one Cadbury Perk Extra Chocolate lying on the
cemented floor in front of Bapuji Kakshya at a distance of two
feet from the southern side wall of the school towards the north.
One Meethi Malai Kulfipop chocolate was noticed at some
distance from the Perk Chocolate on the cemented floor. He also
seized Green Colour Sprite Plastic Bottle containing some liquid
noticed at a distance from the iron door of Bapuji Kakshya
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towards west. She took photographs of scene of crime and
prepared rough sketch map of the spot.
The learned counsel for the appellant argued that
though it is the prosecution case that three persons were sitting
on the school field outside the school i.e. P.W.8, one Sania and
one Hedad, but the other two witnesses were not examined.
Such submission is not acceptable as it is the settled principle of
law of evidence that it is not the quantity, but the quality of
evidence that has to be taken into consideration by the Court for
determining the guilt or innocence of the accused. If the
testimony of a sole witness is confidence-inspiring and beyond
suspicion, the same can be acted upon by the Court.
In view of the evidence adduced by P.W.7, P.W.8,
P.W.9, P.W.10 and the Scientific Officer (P.W.22), we are of the
view that the learned trial Court has rightly come to the
conclusion that the fourth circumstance i.e. the deceased was
found lying on the verandah of the school in an injured condition
has been proved by the prosecution by the required standard of
proof.
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9.5. Fifth Circumstance:
The learned trial Court has formulated this
circumstance to be the absence of the appellant from the
occurrence village soon after the occurrence.
The relevant witness on this point is the I.O.
(P.W.23) who has stated that on 21/22.04.2018 while he was
present at the spot village at midnight, he searched for the
suspect, but did not find him and at about 5.00 a.m. on
22.04.2018, he received information from his source that the
suspect (appellant) was proceeding towards Kajihat and
accordingly, he proceeded to Kajihat and found him near Kajihat
Bazar and apprehended the appellant and brought him to the
police station and kept him under guard for his interrogation.
In the cross-examination, the I.O. (P.W.23) has
stated that he had gone to the house of the appellant on the
night of occurrence and when he asked the whereabouts of the
appellant to his brother, he could not able to say anything. He
stated not to have examined any other members of the family of
the appellant to ascertain about the presence of the appellant in
the occurrence village on the very night though he remained in
the occurrence village for about seven hours on that day. He
further stated that he did not know the appellant earlier and
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caught him in Kajihat and his investigation did not reveal as to
who identified the appellant to him. He further stated that he
simply asked the name of the appellant at Kajihat and rest of the
interrogation was made at the police station.
The appellant has taken a stand while answering to
question no.6 in the accused statement relating to the evidence
of P.W.5 regarding his presence in the occurrence village in the
evening hours on 21.04.2018 that he had been to watch
Gangeswar Yatra, whereas while answering to question no.77
relating to the evidence of the I.O. (P.W.23) regarding his
apprehension at Kajihat Bazar that he was in his house when
police took him to the police station. According to the I.O.
(P.W.23), the apprehension time of the appellant was on
22.04.2018 early morning at 5 O' clock at Kajihat Bazar. If
according to the appellant, he had been to watch Gangeswar
Yatra on 21.04.2018 in the evening hours then it is not clear
when he returned back to his house so that he was arrested in
the early morning on 22.04.2018 as per the defence plea. No
one has stated that the appellant was apprehended from his
house. Even the family members of the appellant have not been
examined by the defence to depose in that respect. As already
discussed under circumstance no. (iii), the appellant has failed to
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establish the plea of alibi. The said circumstance of absconding
from the village immediately after the offence was committed, is
admissible as relevant 'conduct' under section 8 of the Indian
Evidence Act. Absconding by itself may not be a positive
circumstance consistent only with the hypothesis of guilt of the
accused because it is not unknown that even innocent person
may run away for fear of being falsely involved in a criminal case
and arrested by the police, but coupled with the other
circumstances, the absconding of the accused assumes
importance and significance.
Thus the fifth circumstance i.e. the absence of the
appellant from the occurrence village soon after the occurrence
has been rightly held to have been proved by the prosecution by
the learned trial Court.
9.6. Sixth Circumstance:
According to the learned trial Court, the sixth
circumstance against the appellant is the finding of the
chocolates from the pocket of the deceased.
The learned trial Court, while analyzing this
circumstance, has relied upon the evidence of P.W.7, P.W.10,
P.W.14, P.W.15 and the I.O. (P.W.23).
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P.W.7 has stated that the appellant came with the
deceased to her shop on 21.04.2018 in the evening hours when
there was power cut and she was having an emergency light in
the shop and the appellant purchased chocolates of Rs.10/- and
removed the wrapper of one of the chocolates and gave it to the
deceased. She also stated about the seizure of Perk chocolate
and meethi malai chocolates along with plastic containers from
her shop by the police as per seizure list Ext.13. In the cross-
examination, she stated that she used to purchase chocolates
from the sales representatives. She has denied the suggestion
given by the defence counsel that she was not having any
grocery shop in which she was selling chocolates.
P.W.10 has stated that when he noticed the deceased
lying naked in an injured condition on the school verandah, he
found a meethi chocolate was lying nearby. It has been
confronted to P.W.10 and proved through the I.O. (P.W.23) that
he had not stated before police in his 161 Cr.P.C. statement that
meethi chocolate was lying near the spot. Mere omission of
stating to have found a meethi chocolate lying near the spot
cannot be said to be an improvement worthy of disbelieving his
statement. If the I.O. tells to record every minute details about
the occurrence what the witness knows but records what
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according to him are relevant for the case, the same cannot be a
ground to disbelieve the testimony of the witness or to conclude
that it was a case of perfunctory investigation. Only such
omissions which amount to contradiction in material particulars
can be used to discredit the testimony of the witness. Minor
contradictions are bound to appear in the statements of even
truthful witness. Omissions in the earlier statement of a witness
if found to be in trivial details, cannot be a ground to raise doubt
about his credibility. As such minor omission would not cause
any dent in the testimony of P.W.10.
P.W.14 who was the A.S.I. of Salipur Police Station
stated that on 22.04.2018 at about 8.00 a.m., he had
accompanied the I.O. (P.W.23) to village Jagannathpur and
reached there at about 8.30 a.m. and found the spot was on
guard by one A.S.I. and one Havildar and scientific team reached
at the spot and took photographs and the sniffer dog took the
smell of blood and chocolate and it was left to proceed and they
followed it and the dog proceeded after crossing the canal and
entered into the house of the appellant and again returned to the
spot. The dog master (P.W.16) prepared the report (Ext.17). He
further stated that the Scientific Officer handed over the
materials collected to P.W.23 in his presence which were seized
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as per seizure list Ext.14. Ext.14 indicates about the seizure of
chocolates. The witness has denied the suggestion given by the
learned defence counsel that he had given his signature on
Ext.14 at the instance of P.W.23 without having any knowledge
about the seizure therein.
P.W.15 stated that on 22.04.2018 the police seized
one blue colour panty of the deceased and two numbers of
chocolates being produced by the Medical Officer which were
seized as per seizure list Ext.20. He has denied the suggestion
given by the learned defence counsel that being the paternal
uncle of the deceased, he had later given his signature on
Ext.20.
P.W.23, the I.O. has stated that on 22.04.2018 at
about 1.45 p.m., he seized and sealed one blue colour half pant
of the deceased suspected to contain blood stain, two numbers
of meethi malai chocolates which were there in the pant pocket
of the victim on production of Dr. Sourabh Kumar Upadhya and
he prepared the seizure list vide Ext.20. As already stated
P.W.15 has also stated about such seizure. Nothing has been
brought out in the cross-examination for doubting such seizure.
In our humble view, the learned trial Court has
rightly held the sixth circumstance i.e. finding of the chocolates
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from the pocket of the deceased to have been proved by the
prosecution.
9.7. Seventh Circumstance:
The seventh circumstance available on record
according to the learned trial Court is the availability of the blood
on the shirt of the appellant which he was putting on the
relevant day that matched with the blood group of the deceased.
The learned trial Court has taken into account the
report of the S.F.S.L., Bhubaneswar vide Ext.53, the seizure list
Ext.18 relating to the seizure of wearing apparels of the
appellant and the evidence of the doctor (P.W.3) for appreciating
this particular circumstance.
The I.O. (P.W.23) has stated that on 22.04.2018 at
5.00 a.m. on receipt of information that the appellant was
proceeding towards Kajihat, he proceeded there and
apprehended the appellant near Kajihat Bazar, brought him to
the police station and kept him under guard for interrogation.
After the appellant was interrogated, he was arrested on
22.04.2018 at 6.00 p.m. observing formalities of arrest and on
23.04.2018, the appellant was sent to Department of F.M. & T.,
S.C.B. Medical College and Hospital, Cuttack for his medical
examination.
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P.W.3, the Asst. Professor of Department of F.M. &
T., S.C.B. Medical College and Hospital, Cuttack who examined
the appellant on 23.04.2018 on police requisition, stated that on
examination of the wearing apparels, the appellant was found to
be wearing, inter alia, yellow colour full shirt with tag i.e. 'Jam
Jam XL' with reddish brown colour stains above the pocket on
left anterior and right lower part of the anterior aspects and after
examination, the clothings were handed over to the
accompanying escort party in a parcel under seal and label.
The I.O. (P.W.23) has further stated that the escort
party returned to the police station with the appellant after his
medical examination and produced, inter alia, one sealed packet
containing wearing apparels of the appellant including yellow
colour full shirt collected and sealed by the Medical Officer at the
time of examination of the appellant, which was seized as per
seizure list Ext.18. He further stated that he kept the seized mal
items in P.S. malkhana separately.
The I.O. (P.W.23) seized the biological samples of
the deceased on 24.04.2018 on being produced by S.I. of police
Asit Jena from S.C.B. Medical College and Hospital, Cuttack
where the victim was undergoing treatment which was seized as
per seizure list Ext.19.
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The I.O. (P.W.23) has stated that on 27.04.2018, he
made a prayer to the Court for sending the exhibits to S.F.S.L.,
Rasulgarh, Bhubaneswar for chemical examination and report.
The exhibits were sent to the S.F.S.L. with the forwarding report
of J.M.F.C., Salipur.
The D.N.A test report indicates that the human
female D.N.A. profiles generated from Ext.O2-X (cut portion of
blood stain from the full shirt of the appellant) and O2-Y (cut
portion of blood stain from full shirt of the appellant) matched
with female D.N.A. profile generated from Ext.N i.e. the sample
blood of deceased on FTA card.
The attention of the appellant has been drawn to this
part of evidence in his accused statement in question nos.129,
131 and 132, but the appellant pleaded his ignorance.
In the case of Mukesh and another -Vrs.- State
(NCT of Delhi) and others reported in (2017) 6 Supreme
Court Cases 1, it is held that D.N.A. technology as a part of
forensic science and scientific discipline not only provides
guidance to investigation but also supplies the Court accrued
information about the tending features of identification of
criminals. D.N.A. evidence is being increasingly relied upon by
Courts. After the amendment in Cr.P.C. by the insertion of
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section 53-A by Act 25 of 2005, D.N.A. profiling has now become
a part of the statutory scheme. Section 53-A of Cr.P.C. relates to
the examination of a person accused of rape by a medical
practitioner. Section 164-A of Cr.P.C. inserted by Act 25 of 2005
indicates that for medical examination of the victim of rape, the
description of material taken from the person of the woman for
D.N.A. profiling is a must. It is further held that D.N.A. report
deserves to be accepted unless it is absolutely dented and for
non-acceptance of the same, it is to be established that there
had been no quality control or quality assurance. If the sampling
is proper and if there is no evidence as to tampering of samples,
the D.N.A. test report is to be accepted.
The learned counsel for the appellant argued that
P.W.5, P.W.7 and P.W.18 who have stated to have seen the
appellant in the company of the deceased have not stated
whether that particular shirt which was sent for chemical
examination was worn by the appellant and therefore, finding of
blood stain of the deceased on such shirt is immaterial.
We are not at all impressed by such submission.
Since it was evening time and there was power cut in the
locality, it would not have been possible on the part of the
aforesaid three witnesses to identify the shirt that the appellant
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was wearing. However, the appellant was apprehended on the
early morning on 22.04.2018 which was within twelve hours of
the occurrence. The appellant has not taken any plea that the
I.O. gave him some other shirt to wear before sending him for
medical examination. Thus, the very shirt which the appellant
was wearing at the time of his apprehension was collected by the
doctor (P.W.3) and kept in a packet under seal and label and
handed over to the escort party which was subsequently seized
by the I.O. and sent for chemical examination.
The learned trial Court has rightly held that the
seventh circumstance i.e. availability of the blood on the shirt of
the appellant which he was putting on the relevant day that
matched with the blood group of the deceased, has been proved
satisfactorily by the prosecution
9.8. Eighth circumstance:
The eighth circumstance according to the learned
trial Court, is that while in police custody, the appellant after
confessing his guilt showed some places voluntarily where he
had taken the deceased to accomplish the crime.
According to the I.O. (P.W.23), on 23.4.2018 he
forwarded the appellant to the Court. He has stated that on
05.05.2018 at 02.10 p.m., he brought the appellant on remand
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from the judicial custody on a prayer being allowed by the Court
and interrogated him in presence of the witnesses and recorded
his statement vide Ext.31. The appellant disclosed that he would
show the places where he had taken the deceased and then led
the police and the witnesses to the spot where the deceased was
playing and then to the shop of Rina Ojha (P.W.7) and then led
to the verandah of spot school. The I.O. (P.W.23) prepared a
memorandum of the discovery of the fact which is the places
shown by the appellant and the same is marked as Ext.32.
P.W.21 Minar Behera who is a witness to Ext.32 has
corroborated the evidence of P.W.23.
The learned trial Court while discussing this evidence,
came to hold that the showing of places by the appellant to the
I.O. is no way relevant under section 27 of the Evidence Act as
those places had already been discovered and the I.O. had
prepared spot map in crime detail form which is marked as
Ext.39/2, however it is admissible under section 8 of the
Evidence Act as the conduct of the appellant which showed that
the appellant was aware of the places where the crime was
committed by him.
Section 27 of the Evidence Act is an exception to the
general rule that a statement made before the police is not
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admissible in evidence is not in doubt. However, vide section 27
of the Evidence Act, only so much of the statement of an
accused is admissible in evidence as distinctly leads to the
discovery of a fact. Therefore, once the fact has been discovered,
section 27 of the Evidence Act cannot again be made use of to
're-discover' the discovered fact. It would be a total misuse,
even abuse of the provisions of section 27 of the Evidence Act.
[Ref: Sukhvinder Singh and Ors. -Vrs.- State of Punjab :
(1994) 5 Supreme Court Cases 152]
The discovery of the fact resulting in recovery of a
physical object exhibits knowledge or mental awareness of the
person accused of the offence as to the existence of the physical
object at the particular place. Accordingly, discovery of a fact
includes the object found, the place from which it was produced
and the knowledge of the accused as to its existence. To this
extent, therefore, factum of discovery combines both the
physical object as well as the mental consciousness of the
informant accused in relation thereto. In the case of Mohmed
Inayatullah -Vrs.- State of Maharashtra reported in (1976)
1 Supreme Court Cases 828, elucidating on section 27 of the
Evidence Act, it has been held that the first condition imposed
and necessary for bringing the section into operation is the
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discovery of a fact which should be a relevant fact in
consequence of information received from a person accused of
an offence. The second is that the discovery of such a fact must
be deposed to. A fact already known to the police will fall foul
and not meet this condition. The third is that at the time of
receipt of the information, the accused must be in police
custody. Lastly, it is only so much of information which relates
distinctly to the fact thereby discovered resulting in recovery of a
physical object which is admissible. Rest of the information is to
be excluded. The word 'distinctly' is used to limit and define the
scope of the information and means 'directly', 'indubitably',
'strictly' or 'unmistakably'. Only that part of the information
which is clear, immediate and a proximate cause of discovery is
admissible. It has been further held that section 27 of the
Evidence Act pertains to information that distinctly relates to the
discovery of a 'fact' that was previously unknown, as opposed to
fact already disclosed or known. [Ref: Perumal Raja -Vrs.-
State, Rep. by Inspector of Police : A.I.R. 2024 S.C. 460].
In the case of A.N. Venkatesh and Ors. -Vrs.-
State of Karnataka reported in (2005) 7 Supreme Court
Cases 714, it is held that by virtue of section 8 of the Evidence
Act, the conduct of the accused person is relevant, if such
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conduct influences or is influenced by any fact in issue or
relevant fact. The evidence of the circumstance, simplicitor, that
the accused pointed out to the police officer, the place where the
dead body of the kidnapped boy was found and on their pointing
out the body was exhumed, would be admissible as conduct
under section 8 of Evidence Act irrespective of the fact whether
the statement made by the accused contemporaneously with or
antecedent to such conduct falls within the purview of section 27
or not as held in Prakash Chand -Vrs.- State : 1979 Criminal
Law Journal 329. Even if it is held that the disclosure
statement made by the accused-appellants is not admissible
under section 27 of the Evidence Act, still it is relevant under
section 8. The Hon'ble Court held that the evidence of the
investigating officer and the spot mazahar witnesses that the
accused had taken them to the spot and pointed out the place
where the dead body was buried, is an admissible piece of
evidence under section 8 as the conduct of the accused.
In the Indian Parliament attack case that took place
on 13th December 2001 i.e. State (N.C.T. of Delhi) -Vrs.-
Navjot Sandhu and Ors. reported in (2005) 11 Supreme
Court Cases 600, it is held that Afzal led the police to the shop
of P.W.40 and identified the proprietor which fact is relevant and
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admissible under section 8 of the Evidence Act. It is further held
that about the purchase of silver powder, P.W.76 recorded in
Ext.42/1 that Afzal disclosed having purchased the silver powder
from the shop of P.W.42. It may be stated that on the packets of
silver powder (Ext.P/51), the name and address 'Tolaram &
Sons, 141, Tilak Bazar' was written. Thus, the name and address
of the shop was already known to the police. Therefore, section
27 cannot be pressed into service. However, the conduct of Afzal
in pointing out the shop and its proprietor (P.W.42) would be
relevant under section 8 of the Evidence Act.
In the accused statement, question nos.143, 144,
145 and 146 were put to the appellant regarding the evidence
adduced by P.W.21 and P.W.23 in respect of his pointing out
different places and preparation of memorandum vide Ext.32,
but he has simply stated it to be false. Even if the places were
known to the police, but when the appellant was taken on
remand by police and he showed those places, his conduct
becomes relevant under section 8 of the Evidence Act, as a
conduct to be relevant under section 8 need not be
contemporaneous, it may be antecedent or subsequent to the
fact in issue or relevant fact. Under section 8, only the conduct
of the accused is admissible and relevant for which he has no
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reasonable explanation. The explanation of any conduct on the
part of the appellant must come from him and the Court would
not imagine, an explanation which an accused himself had not
chosen to give. The appellant was required to explain as to from
which source, he came to know about those places particularly
when he was not available in the locality after the crime was
detected.
Therefore, the learned trial Court was justified in
holding that the eighth circumstance i.e. conduct of the appellant
in showing some places voluntarily where he had taken the
deceased after confessing his guilt is admissible under section 8
of the Evidence Act which shows that the appellant was aware of
the places where the crime was committed.
Circumstances summed up:
10. We may now usefully summarise the facts and
factors established by the prosecution beyond doubt on record
which are as follows:
i) that the deceased was playing on the canal
embankment of his village in the evening hours on the date of
occurrence with his brother when there was power cut and the
appellant was present nearby;
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ii) that after the brother of the deceased left her
and came to his house, at that time also the appellant was
nearby and thereafter the deceased was found missing;
iii) that the appellant had taken the deceased with
him in the evening hours on the date of occurrence during the
power cut time to the shop of P.W.7 and purchased chocolates
for her;
iv) that the appellant was last seen with the
deceased going towards the school;
v) that the deceased was found lying in an injured
condition on the school verandah within a short time of such last
seen from where she was shifted to the hospital;
vi) that the Scientific Officer found blood stain on
the school verandah and also noticed chocolates lying there;
vii) that the appellant was found absent from the
village after the occurrence and he was apprehended by the I.O.
at Kajihat Bazar next day on the early morning;
viii) that some chocolates were found from the
pocket of the deceased by the Medical Officer;
ix) that the blood stain found on the shirt of the
appellant matched with the blood group of the deceased;
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x) that the appellant on being taken on remand
after confessing his guilt showed some places connected with the
crime to the I.O. voluntarily.
We are of the view that all these ten circumstances
cumulatively taken together form a complete chain that lead to
the only irresistible conclusion that it is the appellant who had
perpetrated the crime.
Discussion on various charges:
11. Now, we are to discuss whether material evidence
brought on record by the prosecution is sufficient to substantiate
various charges framed against the appellant.
11.1. Charge under section 302 of I.P.C.:
The death of the deceased was homicidal is disputed
by the learned counsel for the appellant in view of the absence of
specific finding of the doctor (P.W.1) in the post mortem report
(Ext.1). According to the learned counsel for the appellant, the
deceased died after eight days of the occurrence and the doctor
has stated that he had not explicitly mentioned in his report if
the death was homicidal or accidental.
Learned counsel for the State on the other hand
argued that the doctor (P.W.1) has stated that he noticed
several external injuries on the person of the deceased and two
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of the injuries, i.e. injury nos. (v) & (vii) along with
corresponding internal injuries to brain were fatal to cause death
in ordinary course of nature and the death was due to coma as a
result of blunt trauma injury to head and corresponding brain
injury coupled with effects of hypoxic brain injury and therefore,
when the appellant inflicted such injuries during commission of
sexual offence, which ultimately proved fatal and the deceased
remained in coma for eight days and ultimately died, the
definition of 'murder' as mentioned under section 300 of I.P.C. is
squarely attracted.
The doctor (P.W.1) has stated that on 29.4.2018 he
along with doctor Prabin Kumar Pradhan conducted post-mortem
examination over the dead body of the deceased and found the
following external injuries:-
i. A scratch abrasion of size 1 cm x 0.5 cm
on left scapular region with scab
formation;
ii. An abrasion with scab of size 0.25 cm on
the left index finger knuckle;
iii. Imprint abrasion with regular interrupted
pattern of width 3 cm starting from a point
4 cm below right mastoid tip on the right
lateral neck, extending obliquely
downwards and to the front of neck upto 2
cm left to mid-line on thyroid prominence.
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From 2 cm prior to the left end of this
mark, there starts another such mark
from thyroid prominence passing obliquely
upward and backward towards the left
lateral neck upto 4 cm below the left ear
root. After a discontinuous gap of 3 cm,
the mark is again evident within the hair
line in the same disposition for a length of
5 cm towards occiput. The mark shows
brownish black scab formation;
iv. Another similar imprint abrasion along the
lower border of right lower jaw of size 3.5
cm x 0.3 cm;
v. Laceration of size 1 cm x 0.5 cm x soft
tissue depth and surrounding abraded
contusion with dry clotted blood base
under the chin, 1cm left to mid line;
vi. Contused both lips of mouth on its inner
aspects looking bluish in colour, with
bruised gum tissues against the central
incisor teeth;
vii. Bluish black looking contusion on mid
forehead in patches. There is black eye on
both sides, more evident on the right than
the left;
viii. There are three small bluish black looking
bruises on the shin of right leg.
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On dissection, the doctor found that the scalp was
contused on both frontal region and right parietal eminence. The
skull was intact. The brain surface was deeply congested, with
multiple streak hemorrhages into pons and mid-brain part of the
brain. There were punctate intracerebral haemorrhages present
in the corpus callosum, both temporal lobe base and both frontal
lobe bases. Internal neck structures were intact. The hyoid bone,
thyroid cartilages, strap mussels of neck were intact. The lungs
were intact, congested and deeply edematous. Few segments of
lower lobe of lungs on both sides were pale, pinkish. The internal
genital organs like uterus are small, infantile, intact and the
vaginal canal was intact. The external genitalia revealed no
abnormality or injuries. The hymen was deep sheeted and was
fleshy in type. No injury of any form could be appreciated on the
genitalia.
The doctor gave the following opinion:-
i. The above detailed injuries were of
antemortem in nature. The injury no.(iii) &
(iv) are imprints of some metallic/hard object
(mimicking the zip of garments) caused during
struggle, pressure, dragging or holding the
garment. The external injury nos.(i), (ii), (v),
(vii) & (viii) are due to hard and blunt force
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trauma. The injury no.(vi) can be due to medical
intervention like intubation or trauma;
ii. Injury nos.(v) & (vii) along with
corresponding internal injuries to brain are fatal
to cause death in ordinary course of nature;
iii. Death is due to coma as a result of blunt
trauma injury to head and corresponding brain
injury coupled with effects of hypoxic brain
injury;
iv. The time since death at the time of PM
examination was within 0-6 hours;
In the cross-examination, he stated that there was
no visible fingerprint over any part of the body of the deceased
and hyoid bone and thyroid cartilage of the deceased were intact
and that the internal neck structure of the deceased was also
intact. The doctor has further stated that the cause of death as
per his examination was due to coma as a result of blunt trauma
injury to head and corresponding brain injury coupled with
effects of hypoxic brain injury. He further stated that hypoxic
brain injury results in brief deprivation of brain from the supply
of blood and indirectly oxygen. He admitted not to have
mentioned in his report whether the death of the deceased was
homicidal or accidental.
Since in view of the findings recorded on the
circumstantial evidence, the appellant can be said to be
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responsible for causing the injuries as noticed on the deceased
by the doctor (P.W.1) as per his post mortem report (Ext.1)
which resulted in the death of the deceased, we are to find out
whether the ingredients of 'murder' as defined under section 300
of the I.P.C. are satisfied or not.
Section 299 of the I.P.C. states, inter alia, that
whoever causes death by doing an act with the intention of
causing such bodily injury as is likely to cause death, can be said
to have committed the offence of 'culpable homicide'. Clause
thirdly of section 300 of I.P.C. states that culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing such bodily injury to any person and bodily
injury intended to be inflicted is sufficient in the ordinary course
of nature to cause death. All 'murder' is 'culpable homicide' but
not vice versa. 'Culpable homicide' is genus and 'murder' its
species. 'Culpable homicide' sans 'special characteristics of
murder', is 'culpable homicide not amounting to murder'. The
words 'bodily injury.....sufficient in the ordinary course of nature
to cause death' as appears in clause thirdly of section 300 of
I.P.C. mean that death will be the most probable result of the
injury having regard to the ordinary course of nature. For cases
to fall within clause 'thirdly', it is not necessary that the offender
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intended to cause death, so long as death ensues from the
intentional bodily injury or injuries sufficient to cause death in
the ordinary course of nature. In order to bring a case under
clause 'thirdly' of section 300 of I.P.C., firstly, it must be
established by the prosecution that a bodily injury was present;
secondly, the nature of the injury must be proved which is purely
objective investigation; thirdly, it must be proved that there was
an intention to inflict that particular injury. Once these three
elements are proved to be present, then it is to be proved that
injury of the type was sufficient to cause death in the ordinary
course of nature and this part of enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender. Even if the intention of the accused was limited to the
infliction of a bodily injury sufficient to cause death in the
ordinary course of nature and did not extend to the intention of
causing death, the offence should be murder. Illustration (c)
appended to section 300 of I.P.C. clearly brings out this point.
(Ref: State of Andhra Pradesh -Vrs.- Rayavarapu Punnayya
and others: A.I.R. 1977 S.C. 45)
Since the appellant is responsible in causing various
bodily injuries noticed on the person of the deceased and
according to P.W.1, out of such injuries, injury nos.(v) and (vii)
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along with corresponding internal injuries to brain were fatal to
cause death in the ordinary course of nature and death was due
to coma as a result of blunt trauma injury to head and
corresponding brain injury coupled with effects of hypoxic brain
injury, in view of site and effect of injuries, it is sufficient to draw
an inference that the appellant intended to cause such bodily
injuries as was sufficient to cause death and thus, we are of the
view that clause 'thirdly' of section 300 of I.P.C. is satisfied and
the act of the appellant comes within 'murder' and therefore, the
learned trial Court is quite justified in holding the appellant guilty
under section 302 of the I.P.C., as such finding of fact is based
on evidence available on record which is neither perverse nor
contrary to record.
11.2. Charge under sections 376-AB of I.P.C. and section 6
of POCSO Act:
376-AB of I.P.C. prescribes punishment for rape on a
woman under twelve years of age. 'Rape' has been defined under
section 375 of I.P.C. and it is stated that a man is said to commit
'rape' if he-
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other
person;
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
(b) inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to
do so with him or any other person;
(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or
any other person;
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so with
him or any other person.
In the Explanation 1 to section 375 of I.P.C., it is
stated that for the purposes of this section, 'vagina' shall also
include labia majora.
Section 6 of the POCSO Act deals with punishment
for 'aggravated penetrative sexual assault', which is defined
under section 5 of the POCSO Act. Section 5(m) of the POCSO
Act states that whoever commits 'penetrative sexual assault' on
a child below twelve years is said to commit aggravated
penetrative sexual assault. 'Penetrative sexual assault' has been
defined in section 3 of the POCSO Act which is similar to clauses
(a) (b) (c) and (d) of section 375 of I.P.C.
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At this stage, it would be appropriate to discuss
about the age of the deceased at the time of occurrence as the
same has got link with both the offences.
P.W.17 Arnapurna Biswal was the Anganwadi worker
at village Jagannathpur who has stated that the deceased was
studying in the Anganwadi and on the basis of the letter issued
by Salipur police, she submitted the information vide Ext.22
basing on the entry made in the Anganwadi register (Ext.25)
that the date of birth of the deceased was 02.05.2012 and as
such by 21.04.2018, she was aged about five years and eleven
months. She proved the relevant register which she had taken in
zima after it was seized by the I.O. under seizure list Ext.23. In
the cross-examination, she has stated to be working in the
Anganwadi of Jagannathpur since 2002. She denied the
suggestion that Exts.22 to 25 were all manufactured for the
purpose of the case. The elder brother of the deceased has been
examined as P.W.13 who was aged about seven years and his
age has not been challenged by the defence. Therefore, the
learned trial Court has rightly come to the conclusion that the
deceased was below twelve years of age at the time of
occurrence.
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P.W.8 has stated that the deceased was lying on the
school verandah naked with bleeding injury.
P.W.9 who shifted the deceased lying on the school
verandah with bleeding injury to Salipur hospital with P.W.10 has
not stated that the deceased was in a naked condition.
P.W.10 who shifted the deceased with P.W.9 from
the school verandah in a serious condition has stated that the
deceased was lying naked.
P.W.2, the doctor of Salipur C.H.C. referred the
deceased to S.C.B.M.C.H., Cuttack as her condition was found to
be critical.
P.W.6, the Associate Professor who examined the
deceased on 22.04.2018 has stated that on examination of the
private parts, he found mild redness at the inner side of the folds
of labia minora, more so towards the upper half. All other
structures in the private part were found to be intact without any
discharge or bleeding. He has further stated that no physical clue
of alleged sexual offence could be detected over the wearing
apparels of the deceased and no injuries could be seen on the
private parts of the deceased except mild redness which was
seen at the inner aspect of the inner labial folds close to the
vaginal opening. He has further stated that the vulvovaginal
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samples and anal samples which were preserved and tested at
State Bacteriological and Pathological Laboratory, Cuttack did not
reveal any physical clue of recent sexual intercourse, however,
from the genital findings, it was opined that an attempt of sexual
act or manipulation could not be denied. He further stated that
on 03.05.2018, vide letter no.957(2) dated 02.05.2018 of
Salipur police station, the I.I.C. placed a query and he gave his
opinion that the redness that was detected at the inner side of
the folds of labia minora of the deceased could be possible if an
erect male organ/finger/any other object was pushed or thrust
over the private parts or external genitalia of the deceased. The
redness was also possible if the labial folds were forcibly
stretched or roughly handled or roughly manipulated during an
attempted sexual assault. In the cross-examination, P.W.6
however stated that in his report Ext.9, he has mentioned that
the hymen was intact and there was no inflammation or
discharge or bleeding and that sub-column under (g) regarding
admissibility of finger was left blank and in column (h), he has
mentioned that the hymen was intact and hence the vaginal
canal could not be examined. He further stated that no injuries
could be seen on the private part of the deceased except mild
redness at the inner aspect of the inner labial folds close to the
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vaginal opening. He admits that his opinion that 'an attempted
sexual assault or sexual manipulation cannot be denied' was a
possibility and not a definite opinion. He further stated that in
absence of any other sign and symptoms or injury apart from
redness found in the inner folds of the private part, the
possibility of penetration is ruled out but attempt cannot be
denied. He further stated that as the redness was noticed
towards the upper part of the labial folds, the same being caused
by self-infliction due to itching could not be denied.
P.W.1, the doctor who conducted post-mortem
examination on 29.04.2018 has stated that the internal genital
organs like uterus were intact and the vaginal canal was intact.
The external genitalia revealed no abnormality or injuries. The
hymen was deep-seated and was fleshy in type and no injury of
any form could be seen on the genitalia. He has further stated
that minor superficial genital injury like redness in the genitalia
might not be found if examined after a gap of few days. In the
cross-examination, he has stated that on examination and
dissection of the body, he did not detect any external or internal
injury in the genital of the deceased and he had examined the
vaginal canal of the deceased and it was found intact.
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Ext.53 is the report of S.F.S.L. which consisted of ten
pages wherein after examining the blue colour half pant of the
deceased which was wrapped in a paper in sealed condition and
marked as Ext.J, it was opined that vaginal secretion stain could
be detected in the exhibit marked as J. So far as other exhibits
are concerned, neither blood and semen stains nor semen
vaginal secretion or saliva stain could be detected.
Thus, except mild redness at the inner side fold of
labia minora towards the upper half, no other injuries were
noticed on the private part of the deceased to suggest that the
act committed by the appellant would come as enumerated
under clauses (a) (b) (c) and (d) of section 375 of I.P.C. At this
stage, it is felt proper to quote the query made by the I.O
(P.W.23) to P.W.6, the doctor which is as follows:-
"It is opined that, the labia minora shows mild
redness. Considering the age of the
deceased/victim who was six years old at the
time of alleged sexual assault, please opine that
whether such redness in the labia minora is
possible if the perpetrator pushes/thrusts his
penis or any other object over the private
part/genitalia of the victim girl despite her
resistance".
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On such query, P.W.6 has opined as follows:-
"On perusal of the documents relating to the
case, I am of the opinion that, the redness that
was detected at the inner side of the folds of
labia minora of the victim child, can be possible
if an erect male organ/finger/any other object is
pushed or thrust over the private part or
external genitalia of the girl or if the labial folds
are forcibly stretched or roughly handled or
manipulated during an attempted sexual
assault".
According to P.W.6, this opinion is a possibility and
not a definite opinion and that redness as noticed towards the
upper part of the labial folds of the deceased could be caused by
self-infliction due to itching.
In the case of State of Haryana -Vrs.- Bhagirath
and others reported in (1999) 5 Supreme Court Cases 96,
it is held that the opinion given by a medical witness need not be
the last word on the subject. Such opinion shall be tested by the
Court. If the opinion is bereft of logic or objectivity, Court is not
obliged to go by that opinion. After all, opinion is what is formed
in the mind of a person regarding a fact situation. If the opinion
was given by a doctor is not consistent with the probability, the
Court has no liability to go by that opinion merely because it is
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said by the doctor. In the case of Mayur Panabhai Shah -Vrs.-
State of Gujarat reported in (1982) 2 Supreme Court
Cases 396, it is held that even where a doctor has deposed in
Court, his evidence has to be appreciated like the evidence of
any other witness and there is no irrebuttable presumption that
a doctor is always a witness of truth.
In view of the foregoing discussion, when there is no
other material available on record including circumstances to
satisfy the ingredients of 'rape' or 'aggravated penetrative sexual
assault' committed on the deceased, it would be too risky to
convict the appellant either under section 376-AB of the I.P.C. or
under section 6 of the POCSO Act. However, the manner in
which the deceased was found in a nude condition on the school
verandah after being taken there by the appellant, we are of the
view that the ingredients of offence under section 354 of I.P.C.
i.e. assault or use of criminal force with intent to outrage the
modesty of the deceased is squarely made out. In the case of
State of Punjab -Vrs.- Major Singh reported in A.I.R. 1967
S.C. 63, it is held that the essence of a woman's modesty is her
sex. Young or old, intelligent or imbecile, awake or sleeping, the
woman possesses modesty capable of being outraged. The
culpable intention of the accused is the crux of the matter. The
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reaction of the woman is very relevant, but its absence is not
always decisive, as for example, when the accused with a
corrupt mind stealthily touches the flesh of a sleeping woman.
She may be an idiot, she may be under the spell of anaesthesia,
she may be sleeping, she may be unable to appreciate the
significance of the act, nevertheless, the offender is punishable
under the section. It is further held that a female of tender age
stands somewhat on a different footing. Her body is immature
and her sexual powers are dormant. Nevertheless from her very
birth, she possesses the modesty which is the attribute of her
sex.
In the case of Tarkeshwar Sahu -Vrs.- State of
Bihar reported in (2006) 8 Supreme Court Cases 560, it is
held that the accused was charged with sections 376/511 I.P.C.
only. In absence of charge under any other section, the question
arose whether the accused should be acquitted; or whether he
should be convicted for committing any other offence pertaining
to forcibly outraging the modesty of a girl. The Court invoked
section 222 of the Code of Criminal Procedure, which provides
that in a case where the accused is charged with a major offence
and the ingredients of the major offence are missing and
ingredients of minor offence are made out then he may be
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convicted for the minor offence even though he was not charged
with it.
Accordingly, the conviction of the appellant under
section 376-AB of the I.P.C. and section 6 of the POCSO Act, is
hereby set aside, instead he is found guilty under section 354 of
I.P.C.
11.3. Charge under section 363 of I.P.C.:
Section 363 of I.P.C. prescribes punishment for
kidnapping, which includes kidnapping from lawful guardianship,
which is defined under section 361 of I.P.C.
The object of this section seems as much to protect
the minor children from being seduced for improper purposes as
to protect the rights and privileges of guardians having the lawful
charge or custody of their minor wards. The gravamen of this
offence lies in the taking or enticing of a minor under the ages
specified in this section, out of the keeping of the lawful guardian
without the consent of such guardian. The words "takes or
entices any minor.....out of the keeping of the lawful guardian of
such minor" in section 361, are significant. The use of the word
"keeping" in the context connotes the idea of charge, protection,
maintenance and control; further the guardian's charge and
control appears to be compatible with the independence of action
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and movement in the minor, the guardian's protection and
control of the minor being available, whenever necessity arises.
On plain reading of this section, the consent of the minor who is
taken or enticed is wholly immaterial; it is only the guardian's
consent which takes the case out of its purview. Nor is it
necessary that the taking or enticing must be shown to have
been by means of force or fraud. Persuasion by the accused
person which creates willingness on the part of the minor to be
taken out of the keeping of the lawful guardian would be
sufficient to attract the section. (Ref: Parkash -Vrs.- State of
Haryana : (2004) 1 Supreme Court Cases 339)
In view of the evidence adduced by P.W.7 that the
appellant purchased chocolates for the deceased from her shop
and went towards the school with the deceased so also the
evidence of P.W.18 that on the date of occurrence, the appellant
was found taking the deceased towards Kamar Sahi by the side
of canal embankment and that the age of the deceased at the
time of occurrence which was six years and since the consent of
the family members was not taken, we are of the view that the
appellant lured the deceased by giving chocolates and took her
out of the lawful guardianship and therefore, the learned trial
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Court has rightly held the appellant guilty under section 363 of
the I.P.C.
11.4. Conclusion:
In view of the foregoing discussions, we are of the
view that the prosecution has failed to establish the charges
under section 376-AB of I.P.C. so also section 6 of the POCSO
Act and accordingly the appellant is acquitted of such charges,
however he is found guilty under section 354 of I.P.C. The
conviction of the appellant under section 302 of I.P.C. and
section 363 of I.P.C. stands confirmed.
Sentence:
12. Now, we are to discuss what sentence is required to
be imposed on the appellant for the offences under sections 302,
354 and 363 of I.P.C. Sentencing has always been a vexed
question as part of the principle of proportionality. The
punishment should not be disproportionately great is a corollary
of just deserts and it is dictated by the same principle that does
not allow punishment of the innocent, for any punishment in
excess of what is deserved for the criminal conduct is
punishment without guilt.
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12.1. Sentence for the offence under section 302 of I.P.C.:
The learned trial Court has awarded death sentence
to the appellant for committing the offence under section 302 of
I.P.C. holding that abject monstrosity of the crime indubitably
renders its categorization as rarest of rare case. It was held that
a six year old child who relished little pleasures like chocolates,
would have hardly even imagined that the said joy would snatch
her first basic right i.e. right to live. The little childish brain of
her was not trained to doubt people, especially those who
happened to be known to her. It was her innocence that led her
to establish a trust which here was perniciously breached. The
child who would have once dreaded her teacher's punishment
was bludgeoned to death, in a merciless and demoniacal way.
Both the devilish conjuring of the crime and callous execution are
an anathema to a society that boasts upon civility and a culture
that preaches love and compassion. The learned here would
comport that it is not only the family but the society at large
which is the trustee of a child. Such abhorrent acts not only has
egregiously violated a child's trust and innocence but also has
dehumanized society's conscience. The commission of such
bestiality sans any apparent compunction is a rarity and thus any
laxity in punishment would only be a travesty of justice. The pall
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of trepidation that has been cast can only be mitigated through a
sentence which would be rarest of rare as horrendous was the
crime.
Submission was made by the learned counsel for the
appellant that the appellant is a young man and he has got no
criminal antecedent and nothing adverse is reported against him
during detention period and he hails from a poor background and
he is a married person having children and moreover, the case is
based on circumstantial evidence and therefore, death sentence
is not justified and it may be commuted to life imprisonment.
The learned counsel for the State, on the other hand,
argued that the offence was committed against a girl child aged
about six years though the appellant was himself a married
person and having children. The appellant was known to the
deceased for which the deceased reposed confidence on him and
accompanied him to the shop of P.W.7 where he purchased
chocolates for the deceased and then took her and committed
the crime in a most horrendous, devilish and barbaric manner
and therefore, the death penalty is quite justified.
Chapter XVIII of Cr.P.C. deals with trial before a
Court of Session. Sub-section (2) of section 235 of Cr.P.C. which
comes within such chapter states that if the accused is
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convicted, the Judge shall, unless he proceeds in accordance
with the provisions of section 360, hear the accused on the
question of sentence and then pass sentence on him according to
law. Chapter XXVII of Cr.P.C. deals with the judgment. Sub-
section (3) of section 354 which comes within such chapter
states that when the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence.
The provision of section 354(3) of Cr.P.C. must be read
conjointly with section 235(2) of Cr.P.C. Special reasons can only
be validly recorded if an effective opportunity of hearing
contemplated under section 235(2) of Cr.P.C. is genuinely
extended and is allowed to be exercised by the accused who
stands convicted and is awaiting the sentence. Except in 'rarest
of rare cases' and for 'special reasons', death sentence cannot be
imposed as an alternative option to the imposition of life
sentence.
In the case of Satish (supra), it is held that the
principle of proportion between crime and punishment is a
principle of just deserts that serves as the foundation of every
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criminal sentence that is justifiable. The relevant paragraphs are
reproduced below:-
"29. The criminal law adheres in general to the
principle of proportionality in prescribing liability
according to the culpability of each kind of
criminal conduct. It ordinarily allows some
significant discretion to the judge in arriving at a
sentence in each case, presumably to permit
sentences that reflect more subtle
considerations of culpability that are raised by
the special facts of each case. Judges in essence
affirm that punishment ought always to fit the
crime; yet in practice sentences are determined
largely by other considerations. Sometimes it is
the correctional needs of the perpetrator that
are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and
sometimes even the tragic results of his crime.
Inevitably these considerations cause a
departure from just deserts as the basis of
punishment and create cases of apparent
injustice that are serious and widespread.
30. Proportion between crime and punishment is
a goal respected in principle, and in spite of
errant notions, it remains a strong influence in
the determination of sentences. Anything less
than a penalty of greatest severity for any
serious crime is thought to be a measure of
toleration that is unwarranted and unwise. But in
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fact quite apart from those considerations that
make punishment unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has some very
undesirable practical consequences."
In the case of Vasanta Sampat Dupare (supra), it
is held as follows:-
"20. It is thus well settled, "the Court would
consider the cumulative effect of both the
aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be
very appropriate for the Court to decide the
most significant aspect of sentencing policy with
reference to one of the classes completely
ignoring other classes under other heads and it
is the primary duty of the Court to balance the
two." Further, "it is always preferred not to
fetter the judicial discretion by attempting to
make excessive enumeration, in one way or
another; and that both aspects namely
aggravating and mitigating circumstances have
to be given their respective weightage and that
the Court has to strike the balance between the
two and see towards which side the
scale/balance of justice tilts."
In the oft-quoted decision of Bachan Singh (supra)
and Machhi Singh (supra), the Hon'ble Supreme Court held that
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life imprisonment is the rule and death sentence is an exception.
Death sentence must be imposed only when life imprisonment
appears to be inadequate punishment having regard to the
relevant circumstances of the crime. A balance sheet of
aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances
before the option is exercised. The law laid down in Bachan
Singh (supra) requires meeting the standard of 'rarest of rare'
for award of the death penalty which requires the Courts to
conclude that the convict is not fit for any kind of reformatory
and rehabilitation scheme.
In the case of Santosh Kumar Satishbhushan
Bariyar -Vrs.- State of Maharashtra reported in (2009) 6
Supreme Court Cases 498, it is held that life imprisonment
can be said to be completely futile, only when the sentencing
aim of reformation can be said to be unachievable. Therefore, for
satisfying the second exception to the rarest of rare doctrine, the
Court will have to provide clear evidence as to why the convict is
not fit for any kind of reformatory and rehabilitation scheme.
This analysis can only be done with rigour when the Court
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focuses on the circumstances relating to the criminal, along with
other circumstances.
In the case of Mofil Khan and Ors. -Vrs.- The
State of Jharkhand reported in (2021) 20 Supreme Court
Cases 162, it is held that the possibility of reformation and
rehabilitation of the convict is an important factor which has to
be taken into account as a mitigating circumstance before
sentencing him to death. There is a bounden duty cast on the
Courts to elicit information of all the relevant factors and
consider those regarding the possibility of reformation, even if
the accused remains silent.
During course of argument, we enquired specifically
from the learned State Counsel as to whether there is any
criminal antecedent against the appellant, whether there is
anything adverse against the conduct of the appellant during his
detention in jail custody, to which he answered in negative. It is
not disputed that the appellant is a married person and having
children. No material has been produced before us by the
learned State counsel that there is no possibility of reformation
and rehabilitation. 'Every saint has a past and every sinner has a
future' - strikes a note of reformatory potential even in the most
ghastly crime. Human endeavour should be to hate the sin and
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not the sinner. There is still life in life sentence and only death in
death sentence. Therefore, we are not inclined to impose death
sentence for the offence under section 302 of I.P.C. particularly
when we have acquitted the appellant of the charges under
section 376-AB of I.P.C. so also section 6 of the POCSO Act.
Accordingly, while confirming the conviction of the
appellant under section 302 of I.P.C., we commute the death
sentence imposed on the appellant to life imprisonment with a
rider that he shall undergo minimum sentence of twenty years
and if any application for remission is moved on his behalf, the
same shall be considered on its own merits only after he has
undergone actual sentence of twenty years. If no remission is
granted, it goes without saying that as laid down by the Hon'ble
Supreme Court in the case of Gopal Vinayak Godse -Vrs.-
State of Maharashtra reported in A.I.R. 1961 S.C. 600, the
sentence of imprisonment for life shall mean till the remainder of
his life.
12.2. Sentence for the offence under section 354 of I.P.C.:
So far as the offence under section 354 of I.P.C. is
concerned, taking into account the age of the deceased which
was about six years at the time of occurrence, the manner in
which she was found on the school verandah in a nude condition
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with injuries, we impose the maximum sentence of five years
provided for such offence on the appellant and also direct him to
pay a fine of Rs.10,000/- (rupees ten thousand), in default, to
undergo further R.I. for six month for such offence.
12.3. Sentence for the offence under section 363 of I.P.C.:
The sentence awarded by the learned trial Court for
the offence under section 363 of I.P.C. i.e. to undergo R.I. for a
period of seven years and to pay a fine of Rs.20,000/- (rupees
twenty thousand), in default, to undergo further R.I. for one
year, stands confirmed.
All the substantive sentences awarded to the
appellant are directed to run concurrently. In case of realization
of fine amount, the same shall be disbursed to the parents of the
deceased.
Victim Compensation:
13. The learned trial Court has observed in the judgment
that for the purpose of the provision under section 357-A of
Cr.P.C., the matter be referred to the District Legal Services
Authority, Cuttack for consideration of awarding compensation to
the victim and accordingly sent the extract of the order to the
District Legal Services Authority, Cuttack for information. State
of Odisha in exercise of powers conferred by the provisions of
Page 119 of 120
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2024 11:27:30
section 357-A of Cr.P.C. has formulated Odisha Victim
Compensation Scheme, 2017. If the compensation amount has
not yet been disbursed to the parents of the victim, the District
Legal Services Authority, Cuttack shall take immediate steps to
pay the appropriate compensation within four weeks from today.
14. Accordingly, Death Sentence Reference is answered
in negative. Criminal appeal is allowed in part.
Before parting with the case, we would like to put on
record our deep appreciation to Mr. Ramanikanta Pattanaik and
Mr. Bikash Chandra Parija, learned counsel for the appellant for
the preparation and presentation of the case and assisting the
Court in arriving at the decision above mentioned. This Court
also appreciates the extremely valuable assistance provided by
Mr. Janmejaya Katikia, learned Addl. Govt. Advocate.
........................................
S.K. Sahoo, J.
.................................... R.K. Pattanaik, J.
Orissa High Court, Cuttack The 6th May 2024/M.K.Rout/RKMishra/Sipun Page 120 of 120